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https://www.courtlistener.com/api/rest/v3/opinions/1341926/	180 Ga. App. 259 (1986) 348 S.E.2d 762 PERRYMAN v. GEORGIA POWER COMPANY. 72745. Court of Appeals of Georgia. Decided September 10, 1986. Patricia Perryman, pro se. Charley G. Morris, for appellee. BEASLEY, Judge. Georgia Power Company filed suit against Perryman on an account for the principal sum of $546.19 plus $43.70 interest and court costs in the amount of $28. Perryman, pro se, answered the suit maintaining that the utility had already been awarded the amount sought through a claim in a bankruptcy proceeding. The power company filed a request for production of documents, first interrogatories, a request for admissions which included admissions that Perryman was indebted to the company for the amount pled in the complaint, and a motion for summary judgment. Defendant's sole response to these pleadings was to file a "Motion to Set Aside Summary Judgment," though the court had not yet issued an order on the motion. Approximately two months later, the trial court did grant the motion for summary judgment, expressly finding that Perryman had failed to timely respond to the request for admissions or to move to answer them thereafter, so that as a matter of law she was liable to the utility for the sums. Perryman then filed a "Motion to Vacate and Set Aside Summary Judgment," again asserting satisfaction of the claim through bankruptcy. Defendant failed to appear or answer ready to proceed at the calendar call for hearing of her motion. The court dismissed the motion and awarded the company attorney fees for having to defend it. Perryman appealed from the dismissal, but we are compelled to dismiss the appeal for lack of jurisdiction. 1. As we have noted, the substance of Perryman's complaint before the trial court as well as presently before this court is that summary judgment was improperly granted to the utility because the debt was not owing due to satisfaction or discharge in bankruptcy. Perryman chose to denominate her motion as one to vacate and set aside the summary judgment, see OCGA § 9-11-60 (d), but "[t]he motion was nothing more than a request for a reconsideration of the trial court's summary judgment award. [Cit.] Accordingly, the motion did not extend the time for the filing of a notice of appeal" and therefore the present notice of appeal was not timely filed. Miller v. Bank of the South, 177 Ga. App. 42, 43 (1) (338 SE2d 436) (1985). *260 2. Even if Perryman had timely filed her notice of appeal from the grant of summary judgment in favor of the utility, we would still be unable to exercise jurisdiction to review the merits on this direct appeal. The discretionary appeal provisions of OCGA § 5-6-35 (a) (6) apply to "judgments in the amount of $2,500 or less obtained by verdict following a bench or jury trial as well as by summary judgment." Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600, 601 (344 SE2d 440) (1986). The jurisdictional infirmities in this appeal are dispositive. Appeal dismissed. Deen, P. J., and Benham, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342415/	672 S.E.2d 630 (2009) BOSTIC v. The STATE. No. S09A0175. Supreme Court of Georgia. January 26, 2009. 631 Jennifer R. Burns, Savannah, for appellant. Spencer Lawton, Jr., Dist. Atty., Gregory M. McConnell, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Sheila E. Gallow, Asst. Atty. Gen., for appellee. BENHAM, Justice. Appellant Robert Lorenzo Bostic was convicted of the felony murder of three-year-old Leonard Graham, Jr., with cruelty to a child in the first degree as the underlying felony.[1] On appeal, Bostic contests the sufficiency of the evidence and takes issue with the trial court's admission of certain photographs and its refusal to instruct the jury on the law of felony involuntary manslaughter. 1. The three-year-old victim was declared "brain-dead" on October 31, 2003, and was removed from life support care because there was no evidence of brain-stem function or other brain function. The cause of death was multiple blunt-force trauma consistent with shaken impact syndrome. The child had been transported to a hospital on October 30 after his mother found him unresponsive when she picked him up from the home shared by her sister and appellant, her sister's boyfriend. Investigators ascertained that appellant was the child's sole caregiver from 9:30 a.m. until 3:30 p.m. the day he was found unresponsive. Appellant told police in a video-recorded statement played for the jury that he had shaken the child "slightly hard" after the child had vomited, and the child's head had hit the arm of a chair during the shaking incident. An autopsy revealed fresh external abrasions on the child and internal bruising behind the child's ear, on the back of his neck and throughout his body, including two fractured ribs, multiple sites of sub-dural bleeding on the brain's surface, as well as sub-arachnoid and petechial hemorrhaging. Appellant presented evidence that a neighbor of the victim's grandmother told a counselor in a drug treatment center that the neighbor had seen the child's father shake the child the night of October 29 after the child had up-ended a plate containing cocaine. The neighbor testified and denied having made such statements and denied having seen the child's father shake the child. Drug-screening tests administered to the child's parents resulted in no evidence of drug usage. The forensic pathologist who 632 performed the autopsy testified that, had the injuries been inflicted before 7:00 a.m. on October 30, the child would not have been acting normally at 8:15 a.m., when the child was dropped off at appellant's home. Both the child's mother and his aunt testified the child was acting normally when he was dropped off by his mother. The forensic pathologist and several other medical experts testified that the child's closed-head injuries were the result of the child having been violently shaken by an adult-sized person. Medical experts opined that the injuries were painful to the child. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of causing the death of the victim while maliciously causing a child under the age of 18 cruel and excessive mental and physical pain. OCGA §§ 16-5-1(c); 16-5-70(b); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Folson v. State, 278 Ga. 690(1), 606 S.E.2d 262 (2004); Bass v. State, 282 Ga.App. 159(1), 637 S.E.2d 863 (2006). It was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. See Scott v. State, 281 Ga. 373(1), 637 S.E.2d 652 (2006). 2. Appellant contends the trial court erred when it denied his request for a jury instruction on felony involuntary manslaughter. "A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony." OCGA § 16-5-3(a). Appellant contends the jury could have found he caused the child's death by failing to obtain medical help for the child and his failure to obtain medical care was reckless rather than malicious in light of evidence that he was caring for two small children (the victim and the victim's two-year-old brother) without a motor vehicle and in a home without a telephone. We agree with the trial court's decision for several reasons. First, the indictment did not charge appellant with causing the death of the child by failing to obtain medical care for him. Compare Banta v. State, 282 Ga. 392(5), 651 S.E.2d 21 (2007) (where defendant was charged with cruelty to a child by depriving the child of necessary and appropriate medical care). Rather, the indictment charged that appellant caused the death of the child "by causing the child to sustain brain damage by means unknown to the grand jury...." To that end, the State presented evidence that the child died as a result of having been severely and violently shaken by a person with the strength of an adult. The State did not present any evidence that the child died as a result of lack of medical care. Second, appellant's theory of the case was that the child was fatally shaken by his father and that the "slightly hard" shaking appellant inflicted on the child was an effort to revive him. While misdemeanor reckless conduct can be an offense included in cruelty to a child (Ferguson v. State, 267 Ga.App. 374(2), 599 S.E.2d 335 (2004)), the trial court is not required to charge the jury on an included offense when the evidence shows either the commission of the completed offense as charged or the commission of no offense. Id. If the jury believed appellant's theory, appellant committed no crime since the child was already fatally injured when he came into appellant's care and appellant's actions did not cause the child's death. If, as was the case here, the jury did not believe appellant's theory, then the jury believed the child was in good health when he was placed in appellant's care and appellant severely and violently shook the child, an act that constituted child cruelty in the first degree and caused his death. The trial court did not commit reversible error when it declined appellant's request to charge on felony involuntary manslaughter (OCGA § 16-5-3(a)) based on reckless conduct. 3. Lastly, appellant takes issue with the admission of several photographs of the victim taken immediately prior to and during the autopsy. In a hearing outside the presence of the jury, the trial court struck three photos that contained depictions of stitched incisions made after internal organs were procured for donation (see McClure v. State, 278 Ga. 411(2), 603 S.E.2d 224 (2004)), and had a fourth photo cropped to focus only on the depicted internal injury. With regard to the remaining seven photos which were all taken during the autopsy, the medical examiner *633 testified the photos depicted internal injuries not discernable in photos of the exterior of the body. The trial court admitted the photos as necessary to aid the medical examiner in describing the cause and manner of death because the injuries did not become apparent until the autopsy. Under such circumstances, the admission of the photos was not error. Folson v. State, supra, 278 Ga. 690(3), 606 S.E.2d 262. Judgment affirmed. All the Justices concur. NOTES [1] The child died October 31, 2003, and appellant was arrested the same day. A bill of indictment returned by the Chatham County grand jury charging appellant with malice murder, felony murder (cruelty to a child in the first degree), felony murder (aggravated battery), cruelty to a child in the first degree, and aggravated battery, was filed January 21, 2004. The trial took place October 9-12, 2006, and concluded with the jury's verdict finding appellant guilty of child cruelty and felony murder (child cruelty), and not guilty of malice murder, felony murder (aggravated battery), and aggravated battery. Appellant was sentenced to life imprisonment on the felony murder conviction on October 13. His motion for new trial, filed October 23, 2006, and amended August 9, 2007, was denied October 27, 2007. A timely notice of appeal was filed November 8, 2007. The appeal was docketed in this Court on October 9, 2008, and was submitted for decision on the briefs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343701/	175 Kan. 357 (1953) 264 P.2d 474 WAYNE JOHNSTON, et al., Appellees, JOE VAN TIEGHEN, et al., Appellants, v. THE CITY OF COFFEYVILLE, KANSAS, a Municipal Corporation, et al., Appellees. No. 38,981 Supreme Court of Kansas. Opinion filed December 12, 1953. Richard L. Becker, and Morris D. Hildreth, of Coffeyville, Kansas, were on the briefs for the appellants. Walter S. Keith, of Coffeyville, Kansas, was on the brief for the appellees. 358 The opinion of the court was delivered by THIELE, J.: Wayne Johnston, Joe Van Tieghen (sometimes shown in the record as Van Tiegen) and other persons as plaintiffs commenced an action against the city of Coffeyville and the members of its governing body and the county clerk and county treasurer of Montgomery county, to enjoin the collection of assessments against the lots and lands of each plaintiff made by the city in connection with a county road improvement. The city demurred to the petition and the demurrer being sustained Van Tieghen and some of the plaintiffs perfected an appeal to this court. The ruling on the demurrer is specified as error. In reviewing the petition we shall omit all references to the status of the parties. Plaintiffs alleged they owned certain lots and as such owners would be required to pay any taxes assessed against them; that prior to June 10, 1952, the board of county commissioners of Montgomery County made and effected certain improvements on a county road half of which was within the city of Coffeyville and half of which was in the county outside the city, under the provisions of G.S. 1951 Supp., 68-706, and that the procedure for initiating and making said improvements was in all respects as provided by law; that upon the completion of the improvement Montgomery county billed the city of Coffeyville for one-half of the costs of the improvement in the sum of $4,048.80, and thereafter and on June 10, 1952, the city of Coffeyville passed its ordinance duly published on June 12, 1952, purporting to assess taxes against the real estate owned by plaintiffs, all without authority of law, and that such assessments were unlawful, illegal and void. A copy of the ordinance was attached to the petition as a part thereof. Briefly stated it was further alleged that unless enjoined the city of Coffeyville would certify the illegal taxes to the county clerk who would place them on the tax roll for collection by the county treasurer; that the taxes would become a lien on the property of the plaintiffs and they would be forced to pay the taxes or their property would be sold under such lien. They prayed for injunctive relief. The ordinance above mentioned contained preliminary paragraphs setting up the facts as to the road improvement by Montgomery county under the above mentioned statute, and that the county had certified to the city that one-half of the cost in the sum of $4,048.80 was due from the city as provided by law; that costs 359 of publication and other expenses in connection with the ordinance and in issuing bonds of the city would amount to $146.91 and the total cost to the city was determined to be $4,195.71; that the city's share of the cost should be apportioned by law on an equitable ratio among the taxpayers and after consideration the city governing body found an equitable ratio of distribution would be $1,649.27 to the city at large and $2,546.44 to the property owners fronting on the road who would be benefited by the improvement, to be paid by the property owners on a front foot basis; that the total frontage, excluding intersections, was 2,448.5 feet; that it was necessary to issue bonds of the city to pay its share of the road project and it was ordained by the city that a road district was created consisting of the lots and parcels of land lying along and fronting on the improved road, except street intersections; that the city's share of the costs of the improvement and other costs incident thereto should be paid as follows: by a general levy the city should pay $1,649.27, and that the lots and parcels of land lying within the benefit district should be assessed $2,546.44 which should be apportioned and assessed against the lots and parcels on an equal front foot basis, following which is a list of frontage, description of lands and the amount of the assessment. Section 4 of the ordinance provided that the sums apportioned and assessed against the lots and parcels of land should be collected in ten annual installments, the first installment to be extended upon the tax rolls for 1952 with one installment each succeeding year, provided however, that upon taking effect of the ordinance the city clerk should give written notice to each owner of property of the amount assessed to his property "and that such owner may redeem his property by paying the whole amount of such assessment within thirty (30) days from the date of such notice, and provided further that the Board of Commissioners of the City of Coffeyville, Kansas, shall issue internal improvement bonds of the City in payment of any balance due as provided by law." Section 5 of the ordinance directed the city clerk to make proper extension of the several installments and interest thereon and to certify the same to the county clerk within the time prescribed by law to be collected as other taxes, under like penalty. The ground asserted in the demurrer was that the petition did not state a cause of action in favor of the plaintiffs and against the defendants. 360 Before taking up appellants' contentions of error, we note that it is alleged in the petition and stated in the taxing ordinance that the road improvement project was done under the provisions of G.S. 1951 Supp., 68-706. That statute, as did its predecessors, provides for the improvement of roads by the county the cost of which is borne by benefit districts. The section is long and we quote here only two portions pertinent to the problem presently before us, viz.: "When said apportionment to the land within the benefit district is determined, the county commissioners shall appoint a time for holding a special session to hear any complaint that may be made as to the apportionment of cost, and the county clerk shall mail a written or printed notice to the owner or owners of any tract of land liable to special assessments, which notice shall set forth the time for hearing complaints and the amount assessed against each tract within the benefit district, and the last day for paying the assessment in full. Such notice shall be mailed at least two weeks prior to the time for hearing the complaints. At the hearing the commissioners may alter or change the apportionment for good cause shown. ... When a benefit district hard-surfaced road is constructed alongside the corporate limits of any city the city shall pay fifty percent (50%) of the cost of the construction thereof, apportioned on an equitable ratio among the taxpayers, as prescribed by the council or other governing bodies, and may issue city bonds to pay the city's share of the cost of such improvements...." (Emphasis supplied.) Appellants contend that the facts alleged by them disclose that the application of the statute as made by the city to provide special assessments against them is in violation of article II, section 1 of our state constitution which provides that the legislative power of this state is vested in a house of representatives and senate, and of article XII, section 5 which provides that provision shall be made by general law for the organization of cities and their power of taxation and assessment shall be so restricted as to prevent the abuse of such power. Appellants also contend that the application of the statute made by the city violates their right to due process of law under the fourteenth amendment to the constitution of the United States. We shall consider first whether that portion of the statute under consideration conferred on the city a power of taxation without restriction, and in violation of article XII, section 5 of our state constitution which states that provision (by the legislature) shall be made by general law for the organization of cities, and their power of taxation and assessment shall be so restricted as to prevent the abuse of such power. The word assessment as there used is in conjunction with the preliminaries to the levy of taxes. We think 361 it is not debatable that apportionments of the costs of road improvements to the lots and pieces of land lying within the road benefit district created by the city's ordinance are not taxes within the purview of the constitution, but are special assessments, for it has been held early and late that an assessment against property by reason of benefits derived from a public improvement is not, in the constitutional sense, a tax. See Paine v. Spratley, 5 Kan. 525, 546, and McCall v. Goode, 168 Kan. 361, syl. ¶ 1, 212 P.2d 209. We shall not discuss further appellants' contention that the statute under consideration, insofar as applied to the city, is invalid for the reason it contains no restriction on the city's power of taxation. The question remains however whether, under the statute, the city had the power to make the apportionment of cost in the manner it did. In State, ex rel., v. Hines, 163 Kan. 300, 182 P.2d 865, we considered the constitutionality of a school reorganization act. In that act an attempt was made to delegate to a school reorganization committee the power to alter, reform and consolidate school districts. The opinion contains an extensive citation of the authority of the legislature to delegate its power to legislate and treating of the difference between legislative and administrative power, and it was held that the legislative power cannot be delegated unless there is constitutional sanction therefor. The case is of interest here because of the holding that a delegation of administrative authority (of less dignity than a legislative authority), must fix a reasonably clear standard which governs the exercise of the authority. Even though the above mentioned constitutional provision may be said to authorize the governing body of the city to legislate, the exercise of that authority is not untrammeled. Cities have only such power as is granted to them, take nothing by implication, and the only additional power they may acquire is that necessary to make effective the power granted. In Yoder v. City of Hutchinson, 171 Kan. 1, 228 P.2d 918, which involved damages under proceeding in eminent domain, and where extent of a city's power was involved, we said: "It was early held, and over the years the rule has been, that a municipal corporation is a creation of law and can exercise only powers conferred by law and take none by implication, and that the only power it may acquire in addition to that expressly granted is the power necessary to make effective the power granted. See State v. Hannigan, 161 Kan. 492, 498, 170 P.2d 138, and cases cited." (l.c. 8.) 362 We examine the statute under which the city asserts it had the power to apportion the assessments as it did. That statute does provide specifically for the creation of a benefit district in the county outside the city, for the apportionment of costs, notice of hearing of complaints, hearing thereon and other provisions as noted in the portion of the statute as quoted above, but insofar as the city's share of a benefit district road is concerned, the legislature provided only that fifty percent of the cost should be paid by the city "apportioned on an equitable ratio among the taxpayers, as prescribed by the council or other governing bodies." The statute contains no provision that the city may create any benefit district within the city, no provision for charging property on a front footage base, rather than on its value, no provision for notice that those against whose property an assessment may be made shall have any opportunity to be heard and object, nor for that matter that an assessment may be made in such manner that it can be paid in a series of annual installments, and this we deem significant in view of the care taken in provisions made for the rights of the owners of property in the benefit district outside the city. We have searched the statute to discover any possible restriction on the city's power to apportion its share of the cost of the improvement, and all that can be found is that it shall be "on an equitable ratio among the taxpayers." Although on its face the statute makes the city liable for one-half of the cost of the improvement, and authorizes it to issue city bonds to pay its share of the improvement, we cannot reach a conclusion that it is necessary to make that power effective that it may be said that "apportioned on an equitable ratio" as used in the statute authorizes the creation of a benefit district, and that the city may pass an ordinance creating such a district, apportion to the district a part of the cost on a front foot basis without regard to values or benefits, and make an assessment which the property owners have no opportunity to question in any manner. Insofar as appellants' contention that the application of the statute as reflected in the ordinance and that they are being deprived of property without due process of law is concerned, we need not discuss the power of the legislature to levy a tax or assessment for it did not do that. It attempted to confer that power on the governing body of the city. Appellants' contention is that the city, in fixing the apportionment as it did was in such manner they had no notice and no right of protest and thereby they were deprived of 363 property without due process of law. In support they cite 48 Am. Jur. 695, 51 Am. Jur. 669, 61 C.J. 565, 653, and City Rly. Co. v. Roberts, 45 Kan. 360, 25 Pac. 854, and Water Supply Co. v. Roberts, 45 Kan. 363, 25 Pac. 855. Without reviewing these authorities here, it may be said they support the contention. Although the appellee city directs our attention to authorities that the right of the owner or occupier of a piece of land to have ingress and egress to a public highway is a valuable right, as to which there can be no dispute, and to certain of our statutes pertaining to public improvements where provision is made for division of costs, insofar as the precise questions now under consideration are concerned it relies solely on Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781. That case did not present any question of delegation of power. The action was one brought to enjoin the city of Topeka and other taxing officials from collecting a tax (in reality an assessment under Laws 1881, chapter 37, ¶ 19) levied upon the lots of plaintiffs to defray the costs of building a sewer. The district court denied the injunction and appeal followed. In this court a lengthy opinion was filed and reference is made thereto for a fuller account of the facts and the reasoning of this court. Similarities and dissimilarities between sewer projects and street improvements were noted, but it was held that before special taxes can be made a fixed and permanent charge upon the property of individuals the owners must have notice thereof with an opportunity to be heard and an opportunity to contest their validity and fairness. It was said in that opinion that the tax may be levied provisionally before the notice is given and be made a permanent charge afterward, but that the tax cannot become fixed and permanent until sufficient notice has been given. We need not comment on the sufficiency of the notice there involved, which did give the taxpayers some opportunity to object, for the reason that the ordinance presently involved gave the property owners no opportunity to object but fixed a permanent charge on their real estate. A study of the statute applicable under the facts pleaded in the petition leads us to conclude that the provision of G.S. 1951 Supp., 68-706 delegating to a city the power to apportion its share of road construction costs "on an equitable ratio among the taxpayers" does not fix any reasonably clear standard under which the city governing body must act, and further that even though there were no infirmity in the statute, the ordinance of the city fixing and determining *364 the apportionment of costs of the road improvement against plaintiffs' real estate is invalid in that it contained no provision for notice of the apportionment against their real estate to the taxpayers, nor any opportunity for them to object but without notice levied a permanent charge on their pieces of real estate. The decision of the court sustaining the defendant city's demurrer to the plaintiffs' petition is vacated and set aside and the cause is remanded to the trial court with instructions to overrule that demurrer and for further proceedings consistent with this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343703/	204 Or. 194 (1955) 264 P.2d 418 282 P.2d 1062 MOREY, ADMINISTRATRIX v. REDIFER ET AL. Supreme Court of Oregon. Submitted on motion to dismiss December 1, 1953. Argued March 16, 1955. Affirmed April 20, 1955. Allowed December 9, 1953. Maguire, Shields, Morrison & Bailey, of Portland, for the motion of respondents DeFeyter and Johnson; 195 Bedingfield & Grant, of Coos Bay, for respondent Irion. Claude H. Giles and Flegel, Vosburg, Joss & Hedlund, of Portland, contra. MOTIONS ALLOWED. LUSK, J. The respondents, E.B. DeFeyter and Roy J. Johnson, doing business as Power City Electric Co., and Clyde E. Irion have moved to dismiss the appeal as to them. The action is one for wrongful death. The appellant, J.C. Redifer, doing business as J.C. Redifer Co., and the moving respondents were joined as defendants. On the trial DeFeyter and Johnson were granted a judgment of involuntary nonsuit, and the jury found in favor of Irion and against the appellant Redifer. Redifer served written notice of appeal on his co-defendants as well as on the plaintiff. In support of the motion to dismiss it is urged that the moving respondents are not adverse parties upon the appeal. Where written notice of appeal is given it must be served upon "such adverse party or parties as have appeared in the action or suit, or upon his or their attorney". § 10-803, OCLA. 1. An adverse party within the meaning of the statute is a party whose interest in relation to the judgment is in conflict with the modification or reversal sought by the appeal. Silbaugh v. Guardian Building & Loan Ass'n., 164 Or 286, 291, 297, 97 P2d 943, 99 P2d 1017, 101 P2d 420; In re Brooks' Estate, 167 Or 428, 432, 433, 118 P2d 103. 2. Neither of the moving respondents has any such interest in relation to this appeal. A reversal or modification of the judgment would not affect them in the slightest. They have each of them a judgment in their 196 favor in an action brought against them by the plaintiff and from which the plaintiff has not appealed. These judgments are a bar to any further proceedings against them. Counsel for the appellant are mistaken in their assumption that a reversal of the judgment against him would revive the action against the other defendants. The case of Wilkens v. Western States Grocery Co., 167 Or 103, 114 P2d 542, relied on by the appellant, will bear no such interpretation. In that case there was a judgment against Western States Grocery Company, one of four alleged joint tort feasors. The other defendants were granted judgments of involuntary nonsuit. Western States Grocery Company served notice of appeal on the plaintiff alone. We held that reversible error was committed on the trial and remanded the case for a new trial. It was not necessary for us to say, because it went without saying, that the parties on the new trial would be the same as the parties on the appeal, namely, the plaintiff and Western States Grocery Company, and no others. Although we necessarily considered the legal relationship of the various defendants one to another, as disclosed by the evidence, we decided only that the court erred in refusing to submit to the jury the question whether Western States Grocery Company had possession and control of the premises on which the plaintiff was injured. Any possible, incidental reflection from that ruling upon the correctness of the trial court's orders granting the other defendants judgments of nonsuit could not, and did not, affect the interests of those defendants, for they were out of the case, and neither this court nor any other had power or jurisdiction to bring them back in. The moving respondents are neither necessary nor proper parties to this appeal, and their motions to dismiss are allowed. 197 ON THE MERITS 199 ON THE MERITS 198 Arthur S. Vosburg, argued the cause for appellant. On the brief were Flegel, Vosburg, Joss & Hedlund, of Portland, and Claud H. Giles, of Coos Bay. Harry A. Slack, of Coquille, argued the cause and filed a brief for respondent. Before WARNER, Chief Justice, and TOOZE, LUSK and BRAND, Justices. AFFIRMED. TOOZE, J. This is an action for damages for the death of Alvin Jess Morey, plaintiff's intestate, resulting from the alleged negligent operation by defendants of two motor trucks. The case was tried to a jury. Judgment of involuntary nonsuit was entered in favor of defendants E.B. DeFeyter and Roy J. Johnson. The jury returned a verdict in favor of defendant Clyde E. Irion against plaintiff, and in favor of plaintiff against defendant J.C. Redifer for the sum of $15,000. Judgment was entered accordingly, from which defendant Redifer appeals. The action is prosecuted by Hazel Morey, as administratrix of the estate of Alvin Jess Morey, deceased, for the benefit of herself, as widow, and for the benefit of one surviving grandchild and dependent of decedent, pursuant to the provisions of § 8-903, OCLA (ORS 30.020). Defendant J.C. Redifer dba J.C. Redifer Co., hereafter referred to as defendant, is engaged in the motor trucking business, with headquarters at Portland, in Multnomah county, Oregon, and owns and operates a number of motor trucks. Defendants E.B. DeFeyter and Roy J. Johnson, copartners, dba Power City Electric 200 Co., and hereafter referred to as Electric Co., are engaged in the electrical contracting business, with headquarters at Spokane, Washington. Defendant Clyde E. Irion owns and operates his own motor truck and is engaged in log hauling. Prior to the time of the accident involved in this action, the Electric Co. had entered into a contract with the United States government for the construction of an electric power line between Bandon and Gold Beach, in Coos and Curry counties, in Oregon. Under the contract the United States furnished the necessary poles for construction of the transmission line and delivered them to Electric Co. at Warner, Oregon. The contract was subject to the conditions imposed by the Davis-Bacon Act, 40 USCA § 276(a), which after providing for certain minimum wages on government contracts provides: "* * * and the further stipulation that there may be withheld from the contractor so much of accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor * * ." On April 1, 1952, Electric Co. entered into a contract with defendant Redifer for the hauling by defendant of the power line poles from Warner, Oregon, to the job site in Coos and Curry counties. The contract is in writing and reads as follows: "Electrical Contractors Spokane, Washington April 1, 1952 "J.C. Redifer Company 2309 Southeast 26th Avenue Portland 15, Oregon Attention: Mr. J.C. Redifer Subject: Contract 16D-8613, Bandon-Port Orford and Port Orford Gold Beach, 115 K.V. Transmission Line 201 "Gentlemen: "We wish to confirm a verbal understanding reached between our Mr. Roy Sargent and your company covering your proposal to deliver poles on the subject transmission line as follows: "The J.C. Redifer Company agrees to load the government furnished poles from the yard at Warner, Oregon and transport them to point as near as possible with truck and trailer to the structure site where same will be unloaded in an approved manner and left ready for skidding to the structure location by others. "J.C. Redifer Company will be responsible for damaged and broken poles as a result of his operations in loading, transporting, and unloading and will furnish Power City Electric Company, Certificates of Insurance covering Public Liability and Property Damage, protecting Power City Electric Company against all liabilities arising from any accidents on the hauling job. "J.C. Redifer Company agrees to haul these poles sufficiently in advance of our schedule so that poles will at all times be delivered in advance of our operations and in the event of failure to do so, Power City Electric Company may elect to complete the balance of the work by other means or contracts after five days notice has been given. "For the faithful performance of the work outlined herein Power City Electric Company agrees to pay J.C. Redifer Company at the flat rate of $27.50 (Twenty seven dollars fifty cents) per pole. "J.C. Redifer employees will be carried on the Power City Electric Company payroll and the amounts paid these employees with employer Social Security and Industrial Insurance contributions added will be deducted from the amounts due J.C. Redifer Company for poles delivered at the fees specified above. "The balance of the monies due will be paid J.C. Redifer Company on or about the 15th day of each calendar month, less 15% (Fifteen per cent) 202 retained to assure completion of the work in accordance with this letter contract. "The retained percentages will be paid thirty days after the completion of the work. "Please indicate your acceptance of this agreement by signing in the space provided below and returning one copies [sic] for our files. "Very truly yours, POWER CITY ELECTRIC COMPANY [Sgd.] E.B. DeFeyter E.B. DeFeyter "EBD:nb Accepted for the J.C. Redifer Company By [Sgd.] J.C. Redifer." (Italics ours.) Pursuant to the terms of this contract, all employes of Redifer who were engaged on the pole-hauling job were carried on the payroll of Electric Co. Their wages, less social security and other required deductions, were paid directly to them by Electric Co. The amount of their wages was deducted from the several sums becoming due defendant under the contract. It is obvious that this portion of the contract respecting the payment of wages to employes was incorporated into the agreement pursuant to government requirements. In performance of the terms of the contract on his part to be kept and performed, defendant furnished and maintained a number of motor trucks with trailers and provided the drivers thereof. One of such trucks was a 1944 model Studebaker truck, with a two-wheel trailer attached thereto, the combined length of truck and trailer being 61 1/2 feet. Immediately prior to and at the time of the accident involved in this case, which accident occurred about 5 p.m. on May 23, 1952, this truck with trailer (empty) was being operated and driven by one Jack Gordon Baker, an employe, in a northerly direction on highway No. 101 in Coos county. Immediately preceding the accident, defendant 203 Irion was operating his truck and trailer, loaded with logs, in a northerly direction on said highway, ahead of the truck being operated by Baker. Baker attempted to overtake and pass the loaded log truck while approaching a blind curve in said highway. While Baker was in the act of passing the log truck, the automobile in which Alvin Jess Morey was riding approached from the north. A collision between the Baker truck and the automobile appeared imminent. Baker attempted to swing his truck to the right in front of the log truck, but in so doing the right rear end of his trailer struck the left front end of the log truck, thereby causing the trailer to be thrown with great force into the Morey automobile. As the direct result of this collision, Morey suffered personal injuries, from the effects of which he died within a short time thereafter. Very little if any question was raised as to the negligence of Baker, and, of course, no claim of contributory negligence was made as to the decedent. The trial court found that there was sufficient evidence in the record to submit to the jury the question of whether defendant Irion was negligent, but the jury found in Irion's favor. The principal question involved on the trial and also in this court relates to the status of Baker at the time of the accident; that is, by whom was he employed? Was he an employe of the defendant, or was he an employe of the Electric Co.? The several assignments of error on this appeal bear directly or indirectly upon that question. Based upon the provisions of the above quoted contract and the testimony of defendant (called as an adverse witness by plaintiff), the learned trial judge found as a matter of law that Baker was the employe of defendant, and entered a judgment of involuntary nonsuit in favor of the Electric Co. However, in its 204 instructions to the jury, the trial court submitted as a question of fact to the jury whether Baker was an employe of defendant. As his first assignment of error defendant contends that the trial court erred in sustaining plaintiff's objections to numerous questions directed to one Frances Kuensting, a witness for defendant, relating to certain proceedings in a claim for compensation pending before the State Industrial Accident Commission of Oregon. The witness, as a stenographic reporter, made a record of those proceedings. Defendant made an offer of proof. From that offer of proof it appears that Jack Gordon Baker was accidentally killed August 22, 1952, as the result of a collision between two motor vehicles, one of which he was driving. A claim for compensation was filed with the commission by the surviving widow. A hearing upon the claim was held by the commission on March 18, 1953. E.B. DeFeyter appeared as a witness for the claimant and testified in support of the claim. The witness recorded his testimony. DeFeyter testified that Baker was in the employ of the Electric Co. We quote briefly from the record made on the offer of proof: "Q Did Mr. DeFeyter in response to this question make the following answer: `Q That agreement, now, with Mr. Redifer, I wonder if we could have that, please? (agreement presented) Did he make this answer: `At that time this statement was made with Mr. Redifer, our superintendent, Mr. Sargent, talked to Mr. Redifer and it was our understanding that the men that had formerly been employed by Mr. Redifer would be transferred to our employ; Mr. Redifer would furnish trucks and equipment for hauling this material; that the price he would receive for this equipment rental would be the difference on the contract price he had agreed upon and the amount of payroll for the men used in operating that equipment. Mr. Redifer did 205 furnish trucks and equipment for hauling this material; that the price he should receive for his equipment rental would be the difference of the contract price he had agreed upon and the amount of payroll for the men used in operating that equipment.' Did he so answer? "A Yes, sir." On the offer of proof, the witness testified to many more questions directed to, and answers given by, DeFeyter upon the hearing before the commission, all designed to establish the fact before the commission that Baker was in the employ of Electric Co. Upon conclusion of the offer of proof, plaintiff's attorney restated his objection to the evidence as follows: "Mr. Slack: I want to restate my objection. I object to all, to the admission of this testimony on the ground and for the reason that any testimony or statement of E.B. DeFeyter or any person is hearsay and not binding upon the plaintiff in any way and for the further reason it is not the best evidence and for the further reason it is not an admission against interest as the Power City Electric Co. is no longer in the case and for the further reason that my client was not present at the time of the hearing and did not have a chance to cross examine Mr. DeFeyter or any other witness." 3. The trial court sustained plaintiff's objections and rejected the offer or proof. In this the trial court committed no error. An offer of proof was not separably made as to each question and answer to which the witness Kuensting's attention was directed. On the contrary, a single offer of proof was made incorporating the entire record of DeFeyter's examination as a witness before the commission. Many of the answers given by DeFeyter were based upon the interpretation he placed upon the contract between his company and Redifer; 206 they amounted to mere conclusions or opinions, involing mixed questions of law and fact. Such answers would have been objectionable in any circumstances and subject to a motion to strike. For example, we quote the following: "Q Question: `Who hired Mr. Baker?' Answer `Our superintendent, Mr. Sargent.' Was that testimony given? "A Yes sir. "Q Next page, the following question was: `Now I wonder, did he how could he hire him when he had this agreement here?' A `As I understand that agreement, Redifer would recommend him to you and then he hired him. Wouldn't be any different than going to the Union, they send out a man and hire him, whether you went to a hiring agency and Mr. Redifer hired this man because operating the equipment.' Did he so testify? "A Yes sir. "Q And the same page: `The drivers, so far as you know, came with the trucks though?' Answer: `As far as I know.' Question: `And had been hired by Mr. Redifer and came with the truck on the job? You didn't hire them, is that what you are getting at?' Answer: `Yes, I claim I did.' Was that question asked and answer given? "A Yes. "Q `Well, did you go out and get the man to go to work on the truck, having the truck empty somewhere?' Answer: `We took the men that were recommended by Mr. Redifer as our employees and time was turned in to our payroll office the same as anybody else's and the payroll checks were issued.' Did he so answer? "A Yes, sir. "Q Question: `I understand that. You showed us your checks here, and withholding from them, but the question is: Who hired them.' Answer: It is my opinion we hired them. That is a pretty hard question to answer. If you call a labor agency to send out a man, they recommend a man, still, 207 the man becomes your employe and not the labor agency's.' Was that question asked and answered? "A Yes, sir." (Italics our.) 4. For the reason that the offer of proof contained testimony that was clearly objectionable, if for no other reason, the offer was properly rejected by the trial court. The objectionable portions contaminated the whole. The trial court was not required to separate the good from the bad. Cosgrove v. Tracey, 156 Or 1, 6, 64 P2d 1321; Morris v. DuPont De Nemours & Co., 346 Mo 126, 139 SW2d 984, 129 ALR 352, 358; 53 Am Jur 89, Trial, § 99; 88 CJS 187, Trial, § 82a. 5. The offered testimony of DeFeyter before the Industrial Accident Commission tended to vary the terms of the written contract between his company and Redifer. The agreement speaks plainly of "Redifer's employees" as the persons who are to be carried on the payroll of Electric Co., and Baker was one of those employes. Had the issue been directly between defendant and Electric Co., it is manifest that this type of evidence would not have been admissible. However, as defendant contends, that rule does not apply when the controversy is between one of the parties to the written agreement and third persons. In such cases parol evidence is admissible to show the true agreement, even though it vary the terms of the written instrument. The rule is stated in Pacific Biscuit Co. v. Dugger, 42 Or 513, 516, 70 P 523, 525, as follows: "* * * The rule that an instrument in writing cannot be contradicted or varied by parol evidence applies only between the parties and their privies, and cannot be invoked in controversies between third parties and any of the parties to the contract [Citing cases]." Also see Wilkens v. West. States Groc. Co., 167 Or 103, 109, 114 P2d 542; Smith v. Farmers & Merchants Nat. Bank, 57 Or 82, 84, 110 P 410. 208 However, that rule does not support the admissibility in this case of any of the testimony given by DeFeyter before the Industrial Accident Commission. Had defendant called DeFeyter as a witness on the trial of this case, the rule would have been applicable to the plaintiff, but DeFeyter was not called as a witness. Defendant further contends that the testimony of DeFeyter before the Industrial Accident Commission was admissible under the rule that the admission against interest of a defendant is admissible on behalf of a codefendant against the complainant. As authority for his position, defendant cites Carithers v. Jarrell, 20 Ga 842; 20 Am Jur 538, Evidence, § 638; 31 CJS 1097, Evidence, § 318; 14 ALR 22, 50. The authorities cited are not in point. For example, the statement in 31 CJS 1097, supra, is simply this: "The admission of a defendant against his own interest and in favor of a codefendant is competent for the codefendant." The only authority cited for the foregoing statement is Cade v. Hatcher, 72 Ga 359, and 22 CJ 352, note 60. In this Georgia case the court held that an admission against interest of one defendant, and in favor of his codefendant, contained in the answer of the defendant making the admission, is evidence for the codefendant. The same rule is announced in Carithers v. Jarrell, supra, but that is a far cry from the situation in the instant case. The admissions against interest which defendant sought to introduce into evidence in this case were not contained in the pleadings, nor were they made on the trial of this case. It is obvious that all of the testimony given by DeFeyter on the hearing before the accident commission is pure hearsay insofar as plaintiff is concerned. She was in nowise a party to that hearing, nor was 209 she present when it was held. She was afforded no opportunity to object to improper questions and answers, nor to cross-examine. Manifestly, such evidence is inadmissible against her. There is no merit in defendant's first assignment of error. As his second assignment of error, defendant charges that the trial court erred in giving the following instruction to the jury: "Now, there has been introduced in this case an exhibit known as Plaintiff's Exhibit A-1 which purports to be the contract between Redifer and DeFeyter and Johnson, partners doing business as Power City Electric Co., and if you should find that this is the contract which was entered into between these parties, then under the contract Redifer agreed to haul poles for the Power City Electric Co., or these persons doing business as such, for the flat rate of $27.50 per pole from the points indicated, and if you find that Baker was the employee of Redifer but that he was carried on the payroll of the Power City Electric Co. for some purpose but that he actually was the employee of Redifer, then, of course, Redifer would be liable for his acts within the scope of his authority and, if he was acting within the scope of his authority driving this empty truck at the time and if you find that he was the employee of Redifer, then Redifer would be liable for any alleged negligence on the part of Baker. Whether or not Baker was negligent is a question of fact for you to determine and not for me to tell you. I have no right to tell you or intimate to you what the facts are. I merely tell you if you find the facts to be a certain way, then certain provisions of the law apply." In our consideration of this instruction attention must be given to other parts of the record. At the outset of the trial, defendant stipulated in open court that the contract quoted above was the contract between himself and Electric Co. respecting the work 210 being performed when the accident occurred. Redifer was called by plaintiff as an adverse witness. During the course of his examination, he made the statement that Baker was an employe of Electric Co. and was not employed by him. However, it was perfectly apparent from his testimony that this statement was based entirely upon his interpretation of the terms of the written contract, and not upon anything else, which led the court itself to make the following inquiry: "COURT: Was Mr. Baker employed in carrying out this contract marked Plaintiff's Exhibit A-1? "A Was he working on this contract, you mean? "Q Yes. "A Yes, he was." On his case in chief and as a witness on his own behalf, Redifer was permitted to testify along the same lines covered by the offered testimony of DeFeyter (that given before the accident commission). He gave his own interpretation of the provisions of the contract between himself and Electric Co., it being somewhat similar to that contained in the DeFeyter testimony. At no time, however, did he deny that the written contract contained all the terms of the agreement made between the parties, nor, indeed, in the light of the stipulation made at the outset of the trial, could he deny it. Neither did DeFeyter in his testimony before the Industrial Accident Commission claim that the written contract did not contain all the terms of the agreement between Electric Co. and Redifer. But defendant in his testimony maintained that his arrangement with the Electric Co. was in the nature of a leasing agreement, with him merely furnishing and maintaining the necessary motor trucks and trailers. That was his conclusion. It was not based upon testimony as to what anyone actually said prior to 211 the time the written agreement was entered into, nor afterward. Moreover, such conclusion directly conflicts with the plain terms of the written contract. Under the contract "the J.C. Redifer Company agrees to load the * * * poles * * * and transport them * * * and "J.C. Redifer agrees to haul these poles" at the flat rate of $27.50 per pole. (Italics ours.) Furthermore, everything done by the parties under the contract was consistent with its plain terms which on their face showed that the truck drivers were defendant's employes. Over plaintiff's objection, defendant testified to a conversation he allegedly had with DeFeyter prior to the execution of the written contract. He was examined as follows: "Q I am talking now and limiting it to the question of what your arrangement between him and you and your understanding with him as to the furnishing of trucks and employment of men and all about it. "* * * * * [Objection made and overruled.] "Q Do you understand the question, Mr. Redifer? "A Yes. "Q Tell the jury. "A My arrangement was this: I was to send the trucks down to this job and pay all the operating expenses of the trucks and Power City was to take the men over at the job and pay the men and they would be under their employ." Manifestly, that does not constitute any evidence of an agreement other than the one actually entered into in writing. The statement "they would be under their employ" is simply Redifer's conclusion; it is in direct contradiction of the writing itself, wherein "they" are specifically designated as "Redifer employees". 212 Redifer's son, along with the other employes of Redifer, was carried on the payroll of Electric Co. Redifer, Jr., was foreman in charge of the trucks and drivers. When asked as to who had hired his son on the job and who paid his wages, Redifer testified that Electric Co. had done so. Then he was examined as follows: "Q Do you know who specifically hired him for the Power City Electric Co.? "A For the Power City Electric Co.? "Q Yes. "A Well, I sent him down there. "Q Who hired him when he was down there? Who made the arrangements with the foreman? "A I insisted he be foreman when he went down. "Q Why? "A Because my trucks had to have somebody that was absolutely so that I was sure somebody was seeing after my interests, my trucks. There was a lot of money in them." On cross-examination, Redifer testified: "Q Now, as a matter of fact, you hired the men you hired the truck drivers yourself, didn't you? "A I did. "Q And your son was in charge of these trucks and the truck drivers, wasn't he? "A That is right. "Q If he had wanted to, he could have pulled a truck off the job, couldn't he? "A I am not sure about that, if he could. "Q Well, I will ask this question: If he had wanted to and felt like the man wasn't doing the job, he could have pulled that truck driver off the job? "A Certainly he could have fired the truck driver; he was foreman; any foreman can fire the men on any job." 213 On further cross-examination, Redifer testified: "Q How old is your boy, J.C. Redifer, Jr.? "A About 29. "* * * * * "Q He was in charge of the men and the trucks on this job, wasn't he? "A He was foreman. "Q You sent him down, didn't you? "A Yes, I sent him down." Defendant's son was not called as a witness; nor was anyone else called to testify to any agreement or understanding other than that expressed in the written contract. Defendant's entire testimony, by which he attempted to vary the terms of the written contract, when carefully analyzed, amounts to no more than his own interpretation of the written agreement and its effects. He did not testify to any terms or conditions agreed upon orally that had inadvertently, or otherwise, been omitted from the written contract. His testimony consists largely of opinions and conclusions. However, it was in the light of this testimony no doubt that the trial court left to the jury the question of whether Exhibit A-1 was the contract between defendant and Electric Co., and whether Baker was an employe of defendant. 6. The provisions of the written contract between the parties are plain and unambiguous. The intention of the parties is made clear by the language employed. In such circumstances, it was the function of the court to interpret the contract and declare its legal effects. City of Reedsport v. Hubbard, ___ Or ___, 274 P2d 248, 255. 7, 8. Considering the record as a whole, the trial court should have instructed the jury outright that *214 Exhibit A-1 constituted the contract between the defendant and Electric Co., and that under the express terms of that contract Baker was the employe of defendant. That is the position taken by the court in entering judgment of involuntary nonsuit in favor of Electric Co. It was the court's interpretation of the written contract, and, in our opinion, it was a correct interpretation. Evidently it was out of an abundance of caution that the careful trial judge submitted these questions to the jury as questions of fact. That was of benefit to defendant; a benefit to which he was not entitled. If anyone was prejudiced thereby, it was plaintiff. 9-11. Moreover, in the light of the stipulation at the outset of the trial that Exhibit A-1 was the contract between defendant and Electric Co., and the testimony of defendant that Baker was working under this contract, any testimony on the part of Redifer tending to falsify that stipulation and evidence was inadmissible. When a party to an action or suit stipulates or testifies deliberately to a concrete fact, not as a matter of opinion, estimate, appearance, inference, or uncertain memory, but as a considered circumstance of the case, his adversary is entitled to hold him to it as a judicial admission. If no mistake is claimed or shown, the party so stipulating or testifying to a concrete fact cannot have the benefit of other evidence tending to falsify it. Valdin v. Holteen and Nordstrom, 199 Or 135, 144, 260 P2d 504; Note, 169 ALR 798, 800. What we have already said disposes of the remaining assignments of error, as well as the first two. The defendant had a fair trial. We find no prejudicial error in the record. Judgment affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343705/	121 Cal.App.2d 790 (1953) 264 P.2d 183 MARTIN BROTHERS ELECTRIC COMPANY (a Corporation), Petitioner, v. SUPERIOR COURT OF STANISLAUS COUNTY et al., Respondents. Docket No. 8524. Court of Appeals of California, Third District. December 9, 1953. Keith, Creede & Sedgwick for Petitioner. C. Ray Robinson, Leon Edlefsen and William B. Boone for Respondents. PAULSEN, J. pro tem.[] Petitioner seeks a writ directing the Superior Court in and for the County of Stanislaus to 791 desist from any further proceedings against it in a personal injury action brought against it and others by Peggy Bernice Barnes and to vacate an order denying petitioner's motion to quash the substituted service of summons made on it in said action. Petitioner is a corporation organized, existing and doing business under the laws of Ohio. It manufactures and sells to wholesalers electric hair dryers, one of which, according to the complaint of Peggy Bernice Barnes, exploded and burned her when she was a customer in a beauty parlor in Oakdale, California. Substituted service of summons was made on it through the secretary of state pursuant to section 411, subdivision 2, of the Code of Civil Procedure, and sections 6500 to 6504 of the Corporations Code. Motion to quash such service was denied and thereafter on petitioner's application this court issued an alternative writ to show cause why further proceedings against petitioner in said action should not be prohibited, and temporarily restraining further action therein. The complaint alleges that "at all times herein mentioned, the defendant, Martin Brothers Electric Company, was and now is a corporation doing business within the State of California by and through the defendants, Reid and Sibell, Inc., a corporation ...;" that Reid and Sibell, Inc. "were and now are dealers and distributors of beauty shop equipment, including electric drying machines manufactured by" petitioner. Petitioner supported its motion with the affidavit of one of its California attorneys and the affidavit of its vice-president and secretary. Plaintiff relied on her verified complaint and the depositions of a salesman for Reid and Sibell and of Herbert L. Reid, president of that company. The deposition shows that Reid and Sibell is a California corporation engaged in selling about 1,500 items of merchandise, including dryers manufactured by petitioner; that several other groups sell such machines in this state; that its only place of business is in San Francisco; that it has no written contract with petitioner and purchases the dryers from petitioner in Ohio when it wants them; that petitioner does not control the price for retail sales; that no dryers are shipped on consignment; that Reid and Sibell has its own salesmen and that petitioner has had no salesmen in California for at least two years; that petitioner does no local advertising but does advertise its products in the national 792 trade journals. It is further stated that when a machine is purchased from petitioner by Reid and Sibell, a factory guaranty against mechanical defects accompanies the dryer and is passed on to the ultimate purchaser; that if repairs are needed they are made by any independent repair man available. There is no evidence in the record of the terms of the guaranty certificate. The affidavits offered by petitioner show that it is an Ohio corporation, and maintains offices and a place of business for the manufacture and sale of electrical products at Cleveland, Ohio; that it maintains no office, warehouse or stock of materials in California; that all persons and business establishments in California handling petitioner's products are independent of and have no financial interests in petitioner; that petitioner owns no interest in these or any other business establishments in California and has no control whatsoever over any such establishment or persons; that all such persons and establishments in California are free at all times to purchase any product or products of any manufacturer, whether said product or products be competing or noncompeting with products of petitioner; that petitioner ships no merchandise to any business establishment or persons in California on consignment or on any other basis whereby ownership would remain in petitioner; that all prices quoted are prices in effect at the factory in Cleveland and that all shipments to California or anywhere else are made at the factory to agents or carriers specified by the buyers of the merchandise; that petitioner has had no salesmen living in California for at least two years and does no selling, purchasing, manufacturing or other business within California; that petitioner has never designated an agent for service of process in California; that it has no bank accounts therein; and that it has no real or personal property in this state. Respondents argue that petitioner is doing business in this state through Reid and Sibell and that the evidence is "sufficient to make it just and equitable that it be amenable to process within the state." [1] It has been held that a foreign corporation may be doing business within the state where products manufactured by the corporation are distributed and sold in the state, even though the distributors are independent. (Kneeland v. Ethicon Suture Laboratories, Inc., 118 Cal. App.2d 211 [257 P.2d 727]; Fielding v. Superior Court, 111 Cal. App.2d 490, 494 [244 P.2d 968]; Sales Affiliates, Inc. v. Superior Court, 793 96 Cal. App.2d 134 [214 P.2d 541].) But we have found no case holding that these facts, standing alone, are sufficient to make the foreign corporation amenable to process in this state. In the Kneeland case it was established, among other things, that the corporation was engaged in its own sales promotion work in the state. In the Fielding case the corporation had agreed to insure the distributor against action on behalf of the federal government under the Food, Drug and Cosmetic Act and the corporation set the retail sales prices and required from the distributor a report of stock on hand each month. In the Sales Affiliates case the distributor operated through licensing agreements granted by the corporation and thereby controlled its activities. In every case that has come to our attention there was evidence of activities in addition to sales through a distributor, such as sales promotion work in the state, or the right of the distributor to settle the corporation's accounts. [2] Not "any activity" of a foreign corporation in the state will make it amenable to process and there is no precise test that can be applied in all cases. It "is the combination of local activities conducted by such foreign corporation their manner, extent and character which becomes determinative of the jurisdictional question." (West Pub. Co. v. Superior Court, 20 Cal.2d 720, 728 [128 P.2d 777].) [3] In the language of Sales Affiliates, Inc. v. Superior Court, supra, it must be shown that the corporation "maintained in the state" a representation which "gave it in a practical sense, and to a substantial degree, the benefits and advantages it would have enjoyed by operating through its own office or paid sales force." The allegation of the complaint that petitioner is doing business in this state through Reid and Sibell is a conclusion of law and there is not sufficient evidence of any single activity or combination of activities to indicate that petitioner enjoys the advantage mentioned. Respondent relies heavily on the holding in the Fielding case that, "In the final analysis it would seem that this is really not a question of the power of the state, but whether there is afforded to both parties a greater amount of justice by allowing suit in this state rather than requiring it elsewhere. (See 20 C.J.S. 148; International Shoe Co. v. Washington, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057].)" Such a statement does not imply that a court may, without supporting evidence, exercise its absolute discretion and 794 apply its own ideas of justice and equity in the determination of such questions. [4] Where a defendant properly moves to quash service of summons and the evidence presented is conflicting, the burden of proof is on the plaintiff to produce evidence from which the court can determine which course is just and equitable to both parties. (Briggs v. Superior Court, 81 Cal. App.2d 240 [183 P.2d 758]; Jameson v. Simonds Saw Co., 2 Cal. App. 582 [84 P. 289].) The facts adduced at the hearing of the motion in this case are not sufficient to make petitioner amenable to the process of the courts of this state. The petition is granted. Let the writ issue as prayed. Van Dyke, P.J., and Schottky, J., concurred. NOTES [] Assigned by Chairman of Judicial Council.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342153/	164 Ga. App. 23 (1982) 295 S.E.2d 114 McADOO v. THE STATE. 64375. Court of Appeals of Georgia. Decided September 8, 1982. Rehearing Denied October 19, 1982. Robert B. McNeese, Jr., for appellant. Robert E. Keller, District Attorney, Steven E. Lister, Assistant District Attorney, for appellee. BIRDSONG, Judge. Appellant John Thomas McAdoo appeals from his conviction in the Superior Court of Clayton County of trafficking in cocaine, and mandatory sentence of five years' imprisonment and fine of $50,000 under the Georgia Controlled Substances Act (Code Ann. § 79A-811 (j)). We affirm. The facts as established by the record show that on August 12, 1981, appellant, while deplaning from a flight arriving from Ft. Lauderdale, Florida in Hartsfield Atlanta International Airport, was observed by Paul J. Markonni, senior agent of the airport detail of the federal Drug Enforcement Administration (DEA). Markonni was on duty attempting to identify and apprehend domestic drug couriers and appellant attracted his attention because appellant's behavior was characteristic of many of the indicia of the so-called "drug courier profile." Ft. Lauderdale being a major source for the importation and distribution of narcotics, incoming flights from that city were routinely observed. Markonni noticed appellant because of an exchange of glances and nod of the head between appellant and another passenger who was some distance away. The two appeared to be traveling together but trying to conceal that fact. Watching 24 appellant as he checked in for a connecting flight to Detroit, Markonni saw him tender two tickets and receive two boarding passes from the ticket agent. Markonni identified himself to the ticket agent and examined the tickets presented by appellant. The tickets were round trip from Detroit to Ft. Lauderdale, paid in cash and issued in the names of Raymond and Jeffrey Cork, and indicated a stay in Ft. Lauderdale of just over eighteen hours. A call back number listed for Ft. Lauderdale was the Airport Holiday Inn, and the room number shown had been rented to John McAdoo of Pontiac, Michigan for two parties. The room bill and charges for four long distance calls to Michigan had been paid in cash. McAdoo, who was dressed in jogging shorts and a tee shirt, did not appear to be traveling for business. Based on this information and his twelve years' training and experience with DEA, Markonni deduced that appellant warranted further investigation. Markonni, accompanied by another agent who stayed apart and did not speak, approached appellant, presented his credentials, advised him he was a federal officer and asked to speak with him for a minute, to which appellant agreed. Both agents were dressed in casual clothes which hid their weapons. Markonni spoke in a normal conversational tone of voice trying "to attract as little attention to what we do as possible to avoid any kind of scene or disturbance on the concourse." Appellant was not touched and no commands were made or implied. Appellant voluntarily surrendered an envelope containing two passenger copies, two boarding passes and one baggage claim check. Appellant identified himself as John McAdoo, stating that he was traveling with someone else and produced his driver's license upon request. He admitted that his name was not Cork as shown on the tickets, and told Markonni that his companion was named Richard Glover. At that point Markonni returned appellant's tickets and driver's license and explained that he was a narcotics officer looking for drugs going through the airport. He asked appellant if he were carrying any drugs on his person or in the bag he had checked. When appellant replied in the negative, Markonni told him that the circumstances looked suspicious and asked if he would mind cooperating and allow the agents to search him. Appellant said he would not mind but he was not carrying any drugs or narcotics and would rather be searched some place more private. As the agents led appellant to an empty airline office, he asked to go to the bathroom. Markonni told him to wait just a few minutes because if he were not carrying anything it would be a quick search and then he could do anything he wanted to. Upon reaching the office, Markonni read appellant his Miranda rights and appellant said that he understood them. Markonni 25 conducted a patdown search; in the area of appellant's lower abdomen inside his shorts he felt a bulge and "could hear plastic when [he] moved [his] thumb back and forth." A plastic bag was removed from appellant's clothing which Markonni suspected contained about two ounces of cocaine, and appellant was placed under arrest. Appellant consented to a search of his suitcase and a small amount of cocaine was also found therein. Appellant did not appear to be under the influence of drugs or alcohol, carried on an intelligent conversation and seemed a person of average intelligence. The entire encounter, from initial approach to arrest, lasted no more than six or seven minutes. 1. Appellant argues that the trial court erred in denying his motion to suppress evidence seized as a result of his illegal detention and search. We do not agree. The constitutionality of such a stop by an airport DEA agent based upon an "articulable suspicion" that the defendant was carrying illegal narcotics was first considered by this court in State v. Reid, 149 Ga. App. 685, 686 (255 SE2d 71), which held that because Reid's behavior fit the drug courier profile compiled by the DEA in a number of respects and he consented to a search after being approached, there was probable cause for the search under Terry v. Ohio, 392 U.S. 1 (88 SC 1868, 20 LE2d 889). The United States Supreme Court reversed, holding that the evidence was insufficient to justify a "Terry stop." On remand this court merely affirmed the trial court's grant of the motion to suppress without discussion of any seizure question. State v. Reid, 156 Ga. App. 78 (274 SE2d 164). This issue was subsequently treated by the Georgia Supreme Court on grant of certiorari in State v. Reid, 247 Ga. 445 (276 SE2d 617) (U. S. cert denied). Based on United States v. Mendenhall, 446 U.S. 544 (100 SC 1870, 64 LE2d 497), that court determined that there was "nothing in the record to suggest that the defendant had any objective reason to believe that he was not free to end the conversation and proceed on his way and for that reason we conclude that the agent's initial approach to him was not a seizure." State v. Reid, supra, p. 450. If there is no seizure, there is no constitutional violation. The unresolved question now confronting us is what constitutes a seizure. Under Mendenhall, "a person is `seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such a restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but `to prevent arbitrary and oppressive interference by enforcement officials with the privacy and 26 personal security of individuals.' [Cit.] As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Mendenhall, supra, pp. 553-554. In United States v. Berry, 670 F2d 583 (5th Cir. 1982), a recent case involving strikingly similar facts and the same DEA agent, the Fifth Circuit Court of Appeals sitting en banc examined the issue of whether any airport stop must be held a seizure. The majority observed initially "that Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: [1] communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, [2] brief `seizures' that must be supported by reasonable suspicion, and [3] full-scale arrests that must be supported by probable cause. [Cits.]" United States v. Berry, supra, p. 591. Adopting the reasoning of Judge Johnson, speaking for the majority in Berry, we will weight the intrusion on an individual's Fourth Amendment rights against equally important governmental interests in deterring the ever increasing drug smuggling problem. Thus, where airport stops are of "extremely restricted scope and conducted in a completely non-coercive manner," they will not invoke the Fourth Amendment. Berry, p. 594. No significant intrusion occurs if the law enforcement officer does not forcibly interfere with an individual's progress and ascertains whether the individual is willing to cooperate with police before making any further inquiries. The question, of course, in no way reaches those situations where the individual approached does not consent to be searched; indeed, neither Mendenhall nor Reid intimates that, absent consent, a trip accompanied by agents to a secluded office to be searched would be less than the equivalent of an arrest. (According to Agent Markonni's testimony in Berry, about half the people approached agree to be searched (p. 608, n.3). We agree that it is "striking" that so many individuals stopped at airports consent to search while carrying drugs and even show where they have hidden drugs. Berry, p. 598, n. 16. In considering such airport stops, the question posed is whether an intrusion has occurred. Determinative factors include the lack of interference with the individual's progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to 27 avoid causing the individual the anxiety and fear that troubled the Supreme Court in Delaware v. Prouse, 440 U.S. 648 (99 SC 1391, 59 LE2d 660). The entire initial encounter should be "so brief as to be insignificant. . . ." Berry, p. 595. "[A] seizure has occurred if `in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' [Cits.]" Berry, p. 595. In looking to the totality of the circumstances, the courts should closely scrutinize the presence of any coercion, analyzing with particular care evidence that the individual has consented to a search or to a request to accompany an agent to a private room. "Even verbal agreement to accompany an officer should be scrutinized exceptionally closely to ensure a complete absence of coercive influence." Berry, p. 598. Once a stop is found to be coercive, and thus a seizure, it can be constitutional only if based upon reasonable suspicion as defined by Terry v. Ohio, 392 U.S. 1, 21, supra. Nor is reasonable suspicion automatically established because an individual meets a number of the characteristics of the drug courier profile, for the profile is merely an administrative tool of the police and the presence or absence of a particular characteristic on any given profile is therefore of no legal significance. However, "[i]f an officer can demonstrate why some factor, interpreted with due regard for the officer's experience and not merely in light of its presence on the profile, was, in the particular circumstances of the facts at issue, of such import as to support a reasonable suspicion that an individual was involved in drug smuggling . . . a court should [not] downgrade the importance of that factor . . ." Berry, p. 601. While McAdoo did not give Markonni a false name when asked to identify himself, he did use an alias on the airline tickets and Markonni was aware of that fact when he first approached him, as well as the information that appellant and his companion, neither of whom was dressed in business clothing, had spent only eighteen hours in a known drug center in a hotel room paid for in cash. We think these circumstances were sufficient to establish a reasonable suspicion for the initial encounter and questioning. Nor do we find that appellant was subjected to a detention that was tantamount to an arrest requiring probable cause. Rather, the evidence shows that Agent Markonni scrupulously avoided any actual or implied authority in dealing with appellant. He was not in uniform; he made no physical contact; he did not raise his voice. After looking at and returning appellant's driver's license and airline tickets, he explained that he was a narcotics officer and asked if appellant "would mind cooperating" with him and allow Markonni to search him for drugs. Appellant stated that he did not mind and had 28 no drugs, and in fact requested that the search be carried out in "some place more private." His voluntary consent to be taken to be searched could not be more clear-cut. Most significantly, McAdoo exhibited none of the signs of nervous distress or incipient escape upon learning that Markonni was a narcotics officer looking for drugs being smuggled through the airport as shown by defendants Mendenhall, Reid, or Berry, thereby indicating "a coercive atmosphere that would negate consent." Berry, p. 607 (Anderson, J., concurring specially). Accord, McShan v. State, 155 Ga. App. 518 (1) (271 SE2d 659). Thus, both prongs of the Berry test were met, i.e., McAdoo's consent to be searched was voluntary and not the result of an illegal detention, and the initial stop by Markonni did not constitute a seizure which would trigger Fourth Amendment protections. It therefore follows that denial of the motion to suppress the evidence obtained as a result of the search was without error. Compare Berry v. State, 163 Ga. App. 705 (3) (294 SE2d 562). 2. We likewise conclude that appellant's three enumerated errors concerning the trial court's rulings on his motion to have an independent laboratory analysis of the alleged drugs involved in the case made by a qualified expert of his own choosing are without merit. The trial court was authorized to conduct a pretrial hearing to determine whether the expert designated by appellant was qualified to perform the analysis, and to conclude that since this expert was neither licensed, registered nor otherwise exempted pursuant to Code Ann. § 79A-811 (a), he could not legally possess the controlled substances to perform the analysis or require the State Crime Laboratory to turn over the samples in its possession to him. Sabel v. State, 248 Ga. 10, 18 (6) (282 SE2d 61); Patterson v. State, 238 Ga. 204 (232 SE2d 233). The appellant failed to carry his burden of proving that the expert of his choice was authorized to legally possess the substances to be analyzed. See Code Ann. §§ 79A-814 (b); 79A-829. This analyst testified at the hearing on the motion to have him qualified that such authorization had not been granted. The state produced evidence that there were "thousands of people" who were licensed to obtain the materials necessary to conduct the analysis. The trial court gave defense counsel approximately 24 hours to determine whether he wished to qualify this expert for any procedures which did not require reference samples of the controlled substance, or to qualify another expert. He did neither. Given the discretion vested in the trial court to impose such safeguards under Patterson and Sabel, supra, we cannot say that the restrictions here were so inappropriate as to constitute an abuse of discretion. 3. Appellant's remaining enumeration of error is not supported 29 by argument or citation of authority and is hence deemed abandoned under Rule 15 (c) (2) of this court. Code Ann. § 24-3615 (c) (2); Brown v. State, 161 Ga. App. 55 (1 (c)) (289 SE2d 9). Judgment affirmed. McMurray, P. J., and Banke, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342037/	91 Ga. App. 721 (1955) 87 S.E.2d 123 TUGGLE v. WALLER. 35486. Court of Appeals of Georgia. Decided March 2, 1955. Rehearing Denied March 25, 1955. 723 Whitman & Whitman, Erwin Sibley, for plaintiff in error. Peter J. Rice, Randall Evans, Jr., contra. FELTON, C. J. 1. There was not a fatal variance between the allegations and the proof. It is true that there are no allegations in the petition with reference to trying to escape injury by grasping the steering wheel, etc., but there was no objection to the testimony on the ground that it did not sustain the allegations of the petition; so, conceding but not deciding that such objection would have been good, the allegations in the petition to the effect that the plaintiff could not escape from the path of the automobile and thus avoid injury did not relate to the negligence of the defendant, but related to the exercise of care by the plaintiff in the effort to avoid injury, and the petition could have been amended to meet the objection. There is no merit in this contention. 2. There is no merit in the contention that a verdict was demanded for the defendant because the plaintiff's testimony was vague, inconsistent, and contradictory, and clearly showed that the plaintiff was not entitled to recover. The plaintiff's testimony was not vague, inconsistent, or contradictory. His extra-judicial 724 statement, which in some ways contradicted his testimony, cannot bring the rule of construction of a party's testimony into play, for the simple reason that such evidence is not a part of the plaintiff's testimony on the trial. The general grounds of the amended motion for a new trial are without merit. 3. In ground (b) of the amended motion for a new trial error is assigned on the charge: "Applied to the preservation of property, ordinary diligence means that care which every prudent man takes of his own property of a similar nature." We do not consider that this charge requires the grant of a new trial. If the jury had believed the extra-judicial statement of the plaintiff that he was endeavoring to prevent the defendant's automobile from striking a truck, rather than his testimony that he was endeavoring to avoid injury to himself, they would have had to decide how much care was required of the plaintiff in his effort to protect property. The charge given required ordinary care. We do not see how the charge could have hurt the defendant. Rushton v. Howle, 79 Ga. App. 360 (53 S.E.2d 768). There was no assignment of error on the failure of the judge to charge the principle stated in the case just cited. The charge as a whole was more favorable to the defendant than the law requires. 4. Ground (c) is without merit. 5. There was evidence from which a jury could find the difference in the plaintiff's earning capacity between that before and that after the injuries sustained as a result of the alleged negligence of the defendant. The charge complained of in ground (d) was not erroneous for any reason assigned. 6. It was not error to fail to charge the law on comparative negligence, since there were no pleadings which raised this question, and there was no request to charge on the subject. No charge is required on an issue not made by the pleadings. Benton Rapid Express v. Sammons, 63 Ga. App. 23, 30 (10 S.E.2d 290); Ga. Power Co. v. Weaver, 68 Ga. App. 652, 656 (3) (23 S.E.2d 730); Callaway v. Fischer, 69 Ga. App. 251, 256 (5) (25 S.E.2d 131); Hatcher v. Bray, 88 Ga. App. 344, 349 (8) (77 S.E.2d 64). Grounds (e) and (f) are without merit. 7. The verdict of $7,000 was not excessive. The court did not err in denying the amended motion for a new trial. Judgment affirmed. Quillian and Nichols, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342063/	211 Ga. 607 (1955) 87 S.E.2d 317 LEDBETTER et al. v. CALLAWAY et al. 18906. Supreme Court of Georgia. Argued March 15, 1955. Decided April 12, 1955. Rehearing Denied May 11, 1955. Sidney T. Schell, for plaintiffs in error. Henry C. Crawford, Scott Walters, Jr., Albert A. Roberts, contra. ALMAND, Justice. John A. Callaway and R. J. Brown brought an equitable petition against Ledbetter Construction Company and named individuals as trustees of the Assembly of God Church of East Point. The petitioners, as citizens and property owners, sought to enjoin the defendants from proceeding with the building of a church at 717-19 East Cleveland Avenue in the City of East Point. It was alleged that the property on which the defendants proposed to erect the church had been zoned for residential purposes only, under Use U-1, and that a church is zoned under Use U-7, and said property could not be used for the purpose of erecting a church except after public notice and a hearing had been provided; that, under city ordinances, petitioners were entitled to notice and a hearing before there could be a variance of the use of said property from residential purposes, and they had not been given an opportunity to appear before the zoning and planning commission of the city, and in that regard have been denied their rights as citizens and property owners living in the immediate vicinity where the proposed church is to be erected. It was alleged that, unless the defendants be restrained from building the church, petitioners' property would be damaged in certain particulars set out in the petition. A temporary restraining order was granted on presentation of the petition. 608 The defendants filed their response, in which they asserted that the Zoning and Planning Commission of East Point had approved their application for change of the Use from U-1 to U-7; that a permit had been issued to the defendants, by the Building Inspector of East Point, and they were proceeding to make excavations for the erection of the church. They also filed written objections, in which they asserted that any law or ordinance that required a special permit or variation to build a church violated stated provisions of the State and Federal Constitutions. The prayer for an interlocutory injunction was heard upon an agreed stipulation of facts, and the court entered an order restraining the defendants from proceeding with the erection of said church, and also overruled objections of the defendants attacking the constitutionality of the zoning law of 1946 and the zoning ordinances of the City of East Point. The defendants assign error on this order. The undisputed evidence shows: The City of East Point in 1939 adopted a comprehensive zoning ordinance, whereby the property in question was classed for U-1 use residential purposes. Under class U-7, provision was made for churches, and under the ordinance, before a church could be erected in a district zoned for residential purposes, a special permit was required from the zoning and planning commission, which, after public notice and hearing, was authorized to vary the use and regulation so as to substantially serve the public convenience and "not substantially and permanently injure the appropriate use of the neighboring property." The defendants appeared at a regular meeting of the zoning and planning commission on October 28, 1954, and orally requested that this described property be zoned for church purposes, and no public notice was given as required by the city ordinance. The commission approved the application of the defendants, and on November 15, 1954, the city building inspector issued a permit to them to erect a church on said property. The City Council of East Point on November 1, 1948, adopted a resolution, whereby they declared the act approved January 31, 1946 (Ga. L. 1946, pp. 191-203), to be effective within said city, and that the East Point zoning ordinance of 1939 had been by resolution made to comply with the general zoning act of 1946. 609 Under the zoning act of 1946, authorizing the several municipalities of this State to enact zoning and planning ordinances, it is provided that the provisions of said act would become effective in any municipality then having a system of zoning and planning, if the governing authorities of such municipality should by resolution declare the act to be effective therein. From the stipulated facts it thus appears that, at the time the permit was issued by the Building Inspector of East Point authorizing the erection of said church, the zoning act of 1946 was effective in East Point, and that the city had by proper resolution adopted a zoning ordinance to conform to the State statute. Under sec. 10 of the act of 1946, the City of East Point was required to provide for a board of adjustment of not less than 3 nor more than 5 members. This board was given power: "To hear and decide appeals where it is alleged by appellant that there is an error in any order, requirement, decision or determination made by an administrative official or agency in the enforcement of this act or of any regulation adopted pursuant thereto"; and "To authorize upon appeal in specific cases such variance from the terms of such regulations as will not be contrary to the public interest, where, owing to special conditions full[y] demonstrated on the basis of the facts presented, literal enforcement of the provisions of the regulations will result in great practical difficulties or unnecessary hardship, and so that the spirit of the regulation shall be observed and substantial justice done." This section of the act further provides that appeals may be taken to the board of adjustment by any person or persons having a substantial interest in any decision of an administrative officer or agency seeking to function under authority of any city ordinance, and that the board of adjustment shall fix a reasonable time for the hearing of the appeal, give such notice as it may deem necessary to acquaint the parties interested in the decision, as well as due notice to the parties to the appeal, and decide the same within a reasonable time. This section also provides that from an adverse decision a dissatisfied party could appeal the order of the board, within 30 days after the date of the order, to the superior court of the county in which such municipality lies. Under the zoning act of 1946, the City of East Point was required 610 to set up a planning board, and this board was not given any authority to grant special permits or permit a variance in the use of property previously zoned. It appears from the record that a special permit was issued by the building inspector to the trustees on November 15, 1954, and the equitable petition was filed on November 19, 1954. The petitioners' whole attack complaining of the building of the church is based upon their contention that the planning commission approved a variance in the use of the property and issued a building permit without giving them notice and an opportunity to be heard under the provisions of the zoning ordinance of 1939. No attack is made on the validity of the act of the building inspector in issuing the building permit. It is presumed that the building inspector acted within his authority and according to rules and regulations of the zoning ordinance. New Mission Baptist Church v. City of Atlanta, 200 Ga. 518 (1) (37 S.E.2d 377). The provisions of the ordinance of 1939, which gave to the planning commission authority to make a variance in the use of property, were superseded by the City of East Point electing to come under the provisions of the act of 1946. Under this act, the sole authority to issue special permits varying the use of property previously zoned was vested in the board of adjustment. Under the provisions of this act, the property owners dissatisfied with the act of the building inspector in issuing the permit to erect a church had the right under section 10 to appeal from the order of the building inspector to the board of adjustment. It thus appears that the petitioners in this case had a complete and adequate remedy at law, and the extraordinary remedy of injunction does not lie in favor of one who has an adequate remedy at law. Code §§ 37-120, 55-101; Rice v. Mayor &c. of Macon, 117 Ga. 401 (43 S.E. 773). From the agreed statement of facts, stating that the City of East Point had fully complied with the act of 1946, we assume that there was a board of adjustment in existence at the time this application for injunction was filed. Such being the case, the petitioners, by appeal to this board, had an adequate remedy as to the matters in which they are now seeking injunctive relief. See, in this connection, City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (11) (113 S.E. 545); Washington Seminary v. Bass, 192 611 Ga. 808 (1) (16 S.E.2d 565); Kirkpatrick v. Candler, 205 Ga. 449 (53 S.E.2d 889); Rozier v. Redwine, 211 Ga. 208 (3, 4) (85 S.E.2d 34). See also annotation on variations of zoning regulations, 168 A. L. R. 13, 130. It follows from what has been said above that it was error for the court to grant an interlocutory injunction. In view of the foregoing rulings, it becomes unnecessary to pass upon the constitutionality of the statute and ordinances attacked by the defendants in their written objections. In view of the fact that the trial court did expressly pass upon these objections and overruled them, and since, in view of our rulings, it was unnecessary to pass upon such constitutional questions, direction is given that the trial court, on the return of the remittitur in this case, vacate the order complained of in its entirety. Judgment reversed with direction. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342342/	KEITH BRINEGAR, Plaintiff, v. THE CITY OF WINSTON-SALEM, Defendant. No. COA08-157 Court of Appeals of North Carolina Filed February 3, 2009 This case not for publication Randolph M. James, P.C., by Randolph M. James, for plaintiff-appellant. Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, for defendant-appellee. JACKSON, Judge. Keith Brinegar ("plaintiff") appeals from an order granting summary judgment in favor of the City of Winston-Salem ("defendant"). For the following reasons, we affirm. In August 1993, plaintiff sought employment with the Winston-Salem Police Department ("Police Department"). At that time, plaintiff experienced a non-specific, generalized anxiety disorder. Plaintiff's mental condition was marked by excessive worry about several circumstances with no specific triggers. Plaintiff experienced feelings of anxiety and panic, accompanied by obsessive compulsive thoughts, depression, and fear of social situations. The Police Department was aware of plaintiff's condition and required plaintiff's psychiatrist, Dr. Edward Weaver ("Dr. Weaver"), to provide a written assessment of plaintiff's fitness to become a sworn police officer. Dr. Weaver's letter to the Police Department stated that plaintiff was able to serve as a sworn officer within the Police Department. On 2 August 1993, plaintiff was hired by defendant as a police officer. In August 1999, plaintiff's condition worsened. On 4 August 1999, plaintiff went on sick leave from the Police Department. Plaintiff was unable to return to his duties as a police officer after 4 August 1999. On 9 December 1999, plaintiff applied for disability retirement with the City of Winston-Salem Police Officers' Retirement System ("Officers' Retirement System"). On 10 December 1999, plaintiff requested an advancement of paid sick leave. On 13 December 1999, the Police Department denied plaintiff's request and notified plaintiff that he would be on leave without pay between 19 December 1999 and 31 December 1999. On 20 December 1999, the Police Department went to plaintiff's home and collected all items issued by the Police Department. On 23 December 1999, Police Chief Linda Davis ("Chief Davis") sent a memorandum to Denise Bell ("Bell"), defendant's Chief Financial Officer. In her memorandum, Chief Davis stated that she was aware that plaintiff had applied for disability retirement and that no positions were available within the Police Department that would utilize fully plaintiff's skills and training. However, Chief Davis recommended that plaintiff be assigned as a Police Records Specialist. Around that time, the Winston-Salem Police Officers' Retirement Commission ("Officers' Retirement Commission") sent a copy of plaintiff's disability retirement application, relevant medical records, and a copy of the job description for Police Records Specialist to the Medical Review Board. The Medical Review Board was asked to render an opinion as to whether plaintiff would be capable of performing the duties required of either a police officer or a Police Records Specialist. The Medical Review Board usually took between two weeks and two months to make this kind of determination. In January 2000, prior to the Medical Review Board's determination, plaintiff began selling marijuana on a daily basis. On 21 January 2000, the Forsyth County Sheriff's Department ("Sheriff's Department") arrested plaintiff when he attempted to sell marijuana to a teenager. Also on 21 January 2000, the Sheriff's Department informed the Police Department of plaintiff's arrest. Effective 21 January 2000, plaintiff was suspended pending termination from employment with the Police Department for violation of the Police Department's Rules of Conduct which prohibited the possession or use of controlled substances, narcotics, or hallucinogens except as prescribed for treatment by a physician or dentist. On 28 January 2000, plaintiff filed a grievance contesting his suspension and possible termination from the Police Department. Subsequently, in February 2000, the Medical Review Board determined that plaintiff was capable of performing the job of Police Records Specialist. On 25 February 2000, Loris Colclough ("Colclough"), Administrator of the Officers' Retirement Commission informed plaintiff by letter that plaintiff was offered an alternative position as a Police Records Specialist and that he was ineligible for disability retirement at that time based upon the Medical Review Board's determination and pursuant to defendant's Code of Ordinances . At the time Colclough sent the letter to plaintiff, plaintiff was unable to accept the alternative position due to his suspension from the Police Department. On 16 March 2000, plaintiff pled guilty in federal court to the felonies of possession of marijuana with intent to distribute and possession of a firearm in connection with a drug trafficking charge. Plaintiff's grievance was heard on 31 July 2000. On 7 August 2000, Bryce Stuart, defendant's City Manager, upheld the termination of plaintiff's employment from the Police Department. Plaintiff filed a complaint against defendant alleging constitutional violations and breach of contract on 9 October 2006. On 2 November 2007, defendant moved for summary judgment pursuant to North Carolina Rules of Civil Procedure, Rule 56, judgment on the pleadings pursuant to Rule 12(c), and dismissal of plaintiff's complaint pursuant to Rule 12(b)(6). On 12 December 2007, the trial court entered an order granting defendant's motion for summary judgment. Plaintiff appeals. On appeal, plaintiff argues that the trial court erred in granting defendant's motion for summary judgment (1) as to plaintiff's substantive due process claim, (2) as to plaintiff's breach of contract claim, and (3) in light of our prior holding in Hogan v. City of Winston-Salem, 121 N.C. App. 414, 466 S.E.2d 303, aff'd, 344 N.C. 728, 477 S.E.2d 150 (1996) (per curiam). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). "An issue is `genuine' if it can be proven by substantial evidence[,] and a fact is `material' if it would constitute or irrevocably establish any material element of a claim or a defense."Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citing Bone International, Inc. v. Brooks, 304 N.C. 371, 374-75, 283 S.E.2d 518, 520 (1981)). In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004). The moving party bears the burden of showing that no triable issue of fact exists. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citing Texaco, Inc. v. Creel, 310 N.C. 695, 314 S.E.2d 506 (1984)). This burden can be met "by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim." Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citations omitted). Once the moving party has met its burden, the non-moving party must forecast evidence that demonstrates the existence of a prima facie case. See id. Plaintiff first argues that the trial court erred by granting defendant's motion for summary judgment in violation of plaintiff's substantive due process rights. We disagree. Plaintiff contends that he had a protected property interest in disability retirement benefits from the Officers' Retirement System. Plaintiff concedes that his purported interest is not a fundamental right. We have instructed that "'[i]n general, substantive due process protects the public from government action that unreasonably deprives them of a liberty or property interest.'" Tripp v. City of Winston-Salem, ___ N.C. App. ___, ___, 655 S.E.2d 890, 893 (2008) (quoting Toomer v. Garrett, 155 N.C. App. 462, 469, 574 S.E.2d 76, 84 (2002)). See also U.S. Const. a mend XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ."). "'[W]here the interest is not fundamental, the government action need only have a rational relation to a legitimate governmental objective to pass constitutional muster.'" Tripp, ___ N.C. App. at ___, 655 S.E.2d at 893 (brackets in original) (quoting Toomer v. Garrett, 155 N.C. App. 462, 469, 574 S.E.2d 76, 84 (2002)). "[I]n order for plaintiff to make a substantive due process claim, [he] must allege that [he] had a protected property interest and the government's action depriving [him] of it was without rational relation to a legitimate governmental interest." Id. "[Plaintiff] must have a legitimate claim of entitlement to the property interest." Id. (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561 (1972)). "' Property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.'" Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561 (1972)). The property interest in the case sub judice is defined by defendant's Code of Ordinances which governs the retirement of defendant's employees. With regard to disabled police officers, it provides in pertinent part that [a]ny member, who did not have five years of creditable service as of August 20, 1990, and who is no longer able to perform the duties of a sworn police officer as certified by the medical review board may be transferred by the city to other duties within the police department upon recommendation of the police chief and/or human resources director, subject to the review and recommendation of the retirement commission to the city manager. Should a member of the plan desire transfer to a civilian position outside of the police department, the city will assist with the transfer. The following provisions, in order to maintain police officer retirement benefits insofar as possible, will apply to a transfer to another position within the city under this section: . . . . (6) An officer who did not have five years of creditable service as of August 20, 1990, and elects not to accept a transfer to a new position in the police or other city department will not be eligible to continue participation in the city [retirement] plan or to receive [retirement] benefits . . ., or to thereafter elect to accept the transfer. Winston-Salem, N.C., Code of Ordinances § 50-104(g) (2000). In Tripp, a case almost identical to the case sub judice, we held that the disabled police officer did not have a protected property interest in the officer's retirement benefits pursuant to section 50-104(g) of the Winston-Salem Code of Ordinances. Tripp, ___ N.C. App. at ___, 655 S.E.2d at 893. In Tripp, the plaintiff was a disabled police officer who did not have five years of creditable service with the Police Department prior to 20 August 1990. Tripp, ___ N.C. App. at ___, 655 S.E.2d at 892. The plaintiff was offered an alternative position as a Police Records Specialist within the Police Department instead of retirement. Id. We explained that the City [of Winston-Salem] could require [the plaintiff] to transfer to another position in the [Police Department] or to a civilian position with the City outside of the [Police Department], and if plaintiff refused such a position, she would be entitled to a refund of her entire contributions to the retirement plan, but she would not be eligible to receive benefits under the plan. Id. In the case sub judice, plaintiff attempts to distinguish Tripp by arguing that he was ineligible to be transferred due to his incarceration as a result of his drug-related federal convictions. We are not persuaded by plaintiff's distinction. When determining whether defendant violated a protected property interest protected by substantive due process, the issue is not whether plaintiff was eligible for transfer. Rather, we inquire whether plaintiff had a legitimate claim of entitlement in the property interest. Tripp, ___ N.C. App. at ___, 655 S.E.2d at 893 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561 (1972)). In Tripp, we explained that [a]ccording to the Retirement Code, plaintiff was never entitled to collect retirement benefits upon her disability because, under [section] 50-104(g), the City reserved the option to transfer a disabled police officer to another position in the [Police Department] or elsewhere in the City. Therefore, plaintiff's interest in her retirement benefits was not a protected property interest. Id. (emphasis added). Accordingly, we hold that plaintiff's ineligibility to transfer due to incarceration is immaterial because plaintiff never had a protected property interest in disability retirement benefits under section 50-104(g) of defendant's Code of Ordinances. See id. As such, plaintiff has presented no genuine issue of material fact that defendant violated a property interest protected by substantive due process. Because plaintiff fails to establish a protected property interest, we need not address whether defendant's Code of Ordinances, section 50-104(g) bears a rational relation to a legitimate government interest.[1]See id. Next, plaintiff contends that the trial court erred in granting summary judgment to defendant as to defendant's alleged breach of contract with plaintiff. We disagree. Specifically, plaintiff alleges that (1) defendant failed to raise properly the affirmative defense of the statute of limitations and (2) defendant breached its implied duty of good faith and fair dealing with plaintiff by offering plaintiff an alternative position as a Police Records Specialist when plaintiff was suspended pending termination for drug-related federal criminal charges. Contrary to plaintiff's assertion, we note that defendant did raise the statute of limitations as an affirmative defense in its answer to plaintiff's complaint. Furthermore, the applicable statute of limitations in the case sub judice is two years. N.C. Gen. Stat. § 1-53(1) (2007);see also Tripp, ___ N.C. App. at ___, 655 S.E.2d at 894. On 25 February 2000, Colclough, Administrator of the Officers' Retirement Commission, offered plaintiff an alternative position as a Police Records Specialist and informed plaintiff that he was ineligible for disability retirement at that time. On 9 October 2006, plaintiff filed this action. Accordingly, plaintiff's breach of contract claim is barred by the applicable statute of limitations,[2] and the trial court did not err in granting defendant's motion for summary judgment on plaintiff's claim for breach of contract. Because defendant's alleged breach of contract is statutorily time-barred, we need not address whether defendant acted in good faith by offering plaintiff an alternative position endorsed by the Medical Review Board prior to the hearing regarding plaintiff's possible termination. We note, however, that plaintiff, like the plaintiff in Tripp, "alleged no genuine issue of material fact that the [Police Department] failed to follow the terms of the retirement plan as it existed in the Winston-Salem Code of Ordinances when plaintiff became vested." Tripp, ___ N.C. App. at ___, 655 S.E.2d at 895. Finally, plaintiff argues that the trial court erred in granting summary judgment in light of our decision in Hogan. We disagree. Plaintiff attempts to fashion a genuine issue of material fact as to whether defendant's actions created an unconstitutional impairment of contract. See U.S. Const. art. I, § 10, cl. 1 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ."). Our Supreme Court has explained that [i]n determining whether a contractual right has been unconstitutionally impaired, we . . . [ask]: (1) whether a contractual obligation is present, (2) whether the state's actions impaired that contract, and (3) whether the impairment was reasonable and necessary to serve an important public purpose. Bailey v. State of North Carolina, 348 N.C. 130, 140-41, 500 S.E.2d 54, 60 (1998) (internal citations omitted). Plaintiff relies on our statement in Hogan that [w]hile there may be an issue of material fact as to whether the [20 August 1990] Amendment [to defendant's Code of Ordinances] was reasonable and necessary in relation to officers who had not become vested at the time of its enactment, there is no genuine issue of material fact as to whether the Amendment was reasonable and necessary as to an officer who had become vested prior to its enactment. Hogan, 121 N.C. App. at 421, 466 S.E.2d at 308. Plaintiff's reliance is without merit. We recently held that when a police officer did not have five years of creditable service at the time of the 20 August 1990 amendment to defendant's Code of Ordinances, "there was no contractual obligation and no impairment of contract." Tripp, ___ N.C. App. at ___, 655 S.E.2d at 895 (citing Schimmeck v. City of Winston-Salem, 130 N.C. App. 471, 502 S.E.2d 909, disc. rev. denied, 349 N.C. 531, 526 S.E.2d 182 (1998)). In Tripp, the plaintiff was employed with the Police Department on 6 February 1989 more than a year and a half prior to the amendment at issue. In the case sub judice, however, plaintiff was not employed with the Police Department until almost three years after the 20 August 1990 amendment. Therefore, plaintiff's position is even more attenuated than that of the plaintiff in Tripp. Accordingly, plaintiff's argument is without merit. We hold that the trial court did not err in granting summary judgment in light of Hogan. Plaintiff's remaining assignments of error are deemed abandoned. N.C. R. App. P. 28(b)(6) (2007). For the foregoing reasons, we affirm the trial court's grant of summary judgment in defendant's favor. Affirmed. Judges STEELMAN and STROUD concur. Report per Rule 30(e). NOTES [1] We note, however, that we previously have held that defendant's Code of Ordinances, section 50-104(g) does have a rational relation to a legitimate government interest. See Tripp, ___ N.C. App. at ___, 655 S.E.2d at 893-94. [2] The parties note that on 24 February 2003, plaintiff originally filed this action. On 9 October 2006, after a series of voluntary dismissals, plaintiff re-filed the action. The record does not contain plaintiff's earlier complaint. However, even taking the earliest date agreed upon by the parties, plaintiff's breach of contract allegation still is barred by the statute of limitations.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342343/	672 S.E.2d 529 (2009) JJM TRUCKING, INC. et al. v. CATERPILLAR FINANCIAL SERVICES CORPORATION. No. A08A1706. Court of Appeals of Georgia. January 15, 2009. 530 Fears, Lawrence & Turner, Douglas R. Ballard Jr., Jackson, for appellant. Bandy & Stagg, Ringgold, Matthew A. Bryan, Gary M. Wisenbaker, for appellee. MIKELL, Judge. JJM Trucking, Inc., and Jesse J. Miller, Jr., appeal the grant of summary judgment to Caterpillar Financial Services Corporation ("Caterpillar") in this action to recover a deficiency balance remaining on an installment sales contract following the sale of the collateral, a log loader. We affirm. A trial court properly grants summary judgment when there is no genuine issue of material fact and the movant demonstrates entitlement to judgment as a matter of law.[1] We review a grant of summary judgment de novo, and we view the evidence in a light most favorable to the nonmovant.[2] Viewed in this light, the record shows that Caterpillar filed its complaint on August 6, 2007, seeking $34,442.44 in principal, and 15 percent of that amount as attorney fees, interest, and costs. Caterpillar attached a copy of the installment sales contract, the guaranty, the demand for payment of deficiency, and the demand for attorney fees, the latter two of which had been sent by certified mail. Appellants were served simultaneously with requests for admission. Appellants filed a timely answer to the complaint but did not respond to the requests for admission. Relying upon the admitted facts, which included that appellants had defaulted on the contract and guaranty and owed Caterpillar the principal sum of $34,442.44, Caterpillar filed a motion for summary judgment. On October 5, 2007, appellants filed a motion to withdraw the admissions. The trial court denied the motion on February 14, 2008. Appellants filed an amended answer on February 18, asserting, for the first time, that Caterpillar did not dispose of the log loader in a commercially reasonable manner, as required by OCGA § 11-9-610(b); that Caterpillar did not notify the defendants of the sale, as required by OCGA § 11-9-611; and 531 that Caterpillar did not show that it was entitled to attorney fees. On April 14, the trial court granted summary judgment to Caterpillar, awarding it $34,442.44 principal, $22,904.24 interest to that date, attorney fees of $5,166.37, plus $125 in court costs, totaling $62,638.05. Appellants argue that genuine issues of material fact exist regarding whether Caterpillar disposed of the collateral in a commercially reasonable manner[3] and whether Caterpillar provided a sufficient explanation of how it calculated the deficiency.[4] By failing to enumerate as error the trial court's order denying their motion to withdraw the admissions, however, appellants cannot contest the facts that they have admitted, including the deficiency.[5] Pursuant to OCGA § 9-11-36, a party may serve upon another party a written request for the admission of the truth of any matter that is not privileged and is relevant to the pending action, including a request to admit the genuineness of any documents described therein.[6] Where, as here, the request is served with the summons and complaint, the defendant must serve a written answer or objection thereto within 45 days, or else the matter is deemed admitted.[7] "The language in OCGA § 9-11-36(a) is clear, unambiguous, and unequivocal and means just what it says. One must comply strictly and literally with the terms of the statute upon the peril of having his response construed to be an admission."[8] Any fact thus admitted is conclusively established unless the court permits the affected party to withdraw or amend the admission.[9] "[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits."[10] An amendment to the answer does not constitute a withdrawal of an admission, however.[11] In the case at bar, the trial court denied appellants' motion to withdraw the admissions, and appellants have not challenged this ruling. Thus, appellants have admitted that they received true and correct copies of the installment sales contract, guaranty of payment, and demand for payment of deficiency. Miller admitted that, as president of JJM Trucking, he executed the contract and the guaranty; that he failed to make payments thereunder; that the principal balance due under the contract and guaranty was $34,442.44 as of January 16, 2004; and that appellants owe that amount to Caterpillar. As these facts have been conclusively established, there is no genuine issue of material fact. It follows that the trial court did not err in granting summary judgment to Caterpillar.[12] Judgment affirmed. SMITH, P.J., and ADAMS, J., concur. NOTES [1] AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga.App. 615, 616, 621 S.E.2d 576 (2005). [2] Id. [3] See OCGA § 11-9-610(b). [4] See OCGA § 11-9-616(a)(1)(B), (c). [5] See Schafer v. Wachovia Bank, etc., 248 Ga. App. 466, 469(2), 546 S.E.2d 846 (2001). [6] OCGA § 9-11-36(a)(1). [7] OCGA § 9-11-36(a)(2). [8] (Citations and punctuation omitted.) G.H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 331(2), 486 S.E.2d 810 (1997). [9] OCGA § 9-11-36(b). [10] Id. [11] See Schafer, supra at 469(2), 546 S.E.2d 846. [12] See Mays v. Ed Voyles Chrysler-Plymouth, 255 Ga.App. 357, 359(1), 565 S.E.2d 515 (2002).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342372/	STATE OF NORTH CAROLINA v. KEITH MASON LUNDY No. COA08-799 Court of Appeals of North Carolina Filed January 20, 2009 This case not for publication Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for Defendant-Appellant. McGEE, Judge. Keith Mason Lundy Defendant) pleaded guilty, pursuant to a plea agreement, to assault with a deadly weapon inflicting serious injury on 18 October 2007. The trial court sentenced Defendant to a mitigated term of twenty-three months to thirty-seven months in prison. This Court issued a writ of certiorari for the purpose of reviewing the judgment on 18 February 2008. Defendant contends the trial court erred at sentencing by assigning him one prior record point and a corresponding prior record level II. Defendant asserts that the State did not prove by a preponderance of the evidence that the out-of-state convictions listed on the prior record level worksheet were substantially similar to any North Carolina offenses. "The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction." State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002). A prior conviction shall be proved by any of the following methods: (1) Stipulation of the parties. (2) An original or copy of the court record of the prior conviction. (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts. (4) Any other method found by the court to be reliable. N.C. Gen. Stat. § 15A-1340.14(f) (2007). The statute that governs the assignment of prior record level points for out-of-state convictions provides in pertinent part: Except as otherwise provided in this subsection, a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony, or is classified as a Class 3 misdemeanor if the jurisdiction in which the offense occurred classifies the offense as a misdemeanor. If the offender proves by the preponderance of the evidence that an offense classified as a felony in the other jurisdiction is substantially similar to an offense that is a misdemeanor in North Carolina, the conviction is treated as that class of misdemeanor for assigning prior record level points. If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points. N.C. Gen. Stat. § 15A-1340.14(e)(2007). This Court has held that "the question of whether a conviction under an out-of-state statute is substantially similar to an offense under North Carolina statutes is a question of law to be resolved by the trial court." State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006). Moreover, a defendant's stipulation as to his prior convictions is effective to establish the convictions, but ineffective to establish that his out-of-state convictions are substantially similar to a North Carolina offense. State v. Palmateer, 179 N.C. App. 579, 581-82, 634 S.E.2d 592, 593-94 (2006); see also State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 ("Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate."), disc. review denied and appeal dismissed, 297 N.C. 179, 254 S.E.2d 38 (1979). We have also held that the production of copies of criminal statutes from other jurisdictions to allow comparison of their provisions to the criminal laws of North Carolina was "sufficient to prove by a preponderance of the evidence that the crimes of which [a] defendant was convicted in those states were substantially similar to classified crimes in North Carolina for purposes of G.S. § 15A-1340.14(e)." State v. Rich, 130 N.C. App. 113, 117, 502 S.E.2d 49, 52, disc. review denied, 349 N.C. 237, 516 S.E.2d 605 (1998). In the case before us, the prior record level worksheet listed two convictions for Defendant: (1) driving while license revoked in Duval County, Florida on 26 September 2005; and (2) hit and run, failure to stop, and property damage in Duval County, Florida on 26 September 2005. The following exchange occurred: [STATE]: Does [Defendant] further stipulate that the convictions shown on the work sheet are his own? [DEFENSE COUNSEL]: Your Honor, we will stipulate that he has a conviction for misdemeanor property damage in Florida. I'm assuming that is a similar equivalent to our class one, but I don't have the actual statute from Florida. So I don't know that. But it is a it is a correct recitation that there is a prior conviction for property damage. THE COURT: All right. And also showing a driving while license revoked, same date of conviction [DEFENSE COUNSEL]: Which also does not count for felony purposes. THE COURT: But you think we have the correct information as to prior record [DEFENSE COUNSEL]: That is correct, Your Honor. I just don't know that it's the appropriate but I don't have anything to say it's not either. Subsequently, the trial court found one prior record level point based on the Florida conviction for hit and run, failure to stop, and property damage. This conviction counted for Defendant's only prior record level point, and Defendant was assigned a corresponding prior record level II. The State did not introduce copies of the criminal statutes from Florida to permit comparison to the North Carolina criminal laws. The record also does not contain an express determination by the trial court that the offense listed as "Hit/Run Fail Stop Prop Damage" on the worksheet was substantially similar to a North Carolina offense. Moreover, Defendant's stipulation as to his prior conviction for property damage in Florida was effective to establish the conviction, but ineffective to establish that the conviction was substantially similar to a North Carolina offense. We conclude that the trial court erred by including one point for the Florida offense in its calculation of Defendant's prior record level. Accordingly, we remand for resentencing. Remanded for resentencing. Judges HUNTER and JACKSON concur. Report per Rule 30(e).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342376/	672 S.E.2d 448 (2009) THOMPSON v. SALACOA HIGHLAND PROPERTY OWNERS' ASSOCIATION, INC. No. A08A1948. Court of Appeals of Georgia. January 8, 2009. 449 Sherri E. Thompson, pro se. Rodney D. Goldin Jr., for appellee. MIKELL, Judge. Sherri E. Thompson filed this pro se direct appeal from the trial court's order dismissing her untimely filed notice of appeal. Although the trial court erred in dismissing the appeal pursuant to OCGA § 5-6-38(a), we lack jurisdiction because the underlying judgment Thompson seeks to appeal is for a sum less than $10,000. As such, Thompson was required to file an application for discretionary appeal in order to confer appellate jurisdiction upon this Court.[1] Having failed to do so, her direct appeal must be dismissed. The record shows that on November 7, 2007, the trial court granted summary judgment in the amount of $5,656.72, plus court costs, to Salacoa Highland Property Owners' Association, Inc., in its suit against Thompson to recover unpaid community association assessments. Within 30 days thereafter, Thompson filed a motion for reconsideration, an amended motion for reconsideration, and a motion to vacate the judgment. However, Thompson did not file a notice of appeal until December 20, 2007. Salacoa moved the trial court to dismiss the appeal pursuant to OCGA § 5-6-38, which requires the aggrieved party to file a notice of appeal within 30 days after the entry of judgment in order to bestow jurisdiction upon the appellate court.[2] The trial court dismissed the appeal on the basis of OCGA § 5-6-38, and Thompson filed a direct appeal within 30 days of that order. The trial court's authority to dismiss a party's appeal is governed by OCGA § 5-6-48(c), which provides, in pertinent part, that the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party [or] where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.[3] Pursuant to OCGA § 5-6-48, only the appellate courts are authorized to dismiss an appeal based on a party's failure to file a timely notice of appeal.[4] In the case at bar, the trial court relied upon OCGA § 5-6-38, and not OCGA § 5-6-48(c), in dismissing the appeal. In so doing, the trial court erred. Nevertheless, this Court lacks jurisdiction to consider Thompson's appeal. "[I]n OCGA § 5-6-35(a)(6), the General Assembly has expressed the clear intent to require an application to appeal when the judgment at issue is between one cent and up to and including the statutory maximum, which presently is $10,000."[5] In her brief, Thompson challenges not only the order dismissing her appeal but also the underlying order granting summary judgment to Salacoa for $5,656.72, plus court costs. "Although the grant of a motion for summary judgment is in general directly appealable, where the amount of the judgment is $10,000 or less, an application for discretionary appeal is required."[6] Consequently, Thompson's direct 450 appeal contesting the order granting summary judgment to Salacoa for a sum less than $10,000 must be dismissed for failure to comply with the discretionary appeal procedures.[7] Appeal dismissed. SMITH, P.J., and ADAMS, J., concur. NOTES [1] OCGA § 5-6-35(a)(6). [2] See Kappelmeier v. HSBC USA, 280 Ga.App. 349, 350, 634 S.E.2d 133 (2006). [3] See Vaughn v. Faulkner, 288 Ga.App. 798, 655 S.E.2d 686 (2007). [4] See OCGA § 5-6-48(b)(1); Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53, 55, 226 S.E.2d 737 (1976) ("Under the Appellate Practice Act, the dismissal of an appeal is not mandatory except for the three specific instances contained in [OCGA § 5-6-48(b)]. All three relate to dismissals by the appellate courts"). [5] (Citation omitted.) Harpagon Co. v. Davis, 283 Ga. 410, 411, 658 S.E.2d 633 (2008). [6] (Citation and punctuation omitted.) Ca-Shar, Inc. v. McKesson Corp., 204 Ga.App. 865, 420 S.E.2d 810 (1992). See also Khan v. Sanders, 223 Ga.App. 576, 577, 478 S.E.2d 615 (1996) (where the underlying judgment awarded defendant $5,050, direct appeal not authorized from order denying plaintiffs' motion for new trial, motion to set aside judgment, and motion to reopen default). [7] See Khan, supra; Ca-Shar, supra.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343740/	168 Ga. App. 417 (1983) 309 S.E.2d 412 GIBBS v. THE STATE. 66844. Court of Appeals of Georgia. Decided October 14, 1983. Louise T. Norwood, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Jerry W. Baxter, Margaret V. Lines, Assistant District Attorneys, for appellee. BIRDSONG, Judge. Jerome Gibbs was convicted of armed robbery, aggravated assault with intent to commit rape, and aggravated assault upon a police officer while in the execution of his duties. Gibbs was sentenced to twenty years for the armed robbery, ten years consecutive for the assault to rape and ten years concurrent for the assault upon the police officer. He brings this appeal enumerating five asserted errors. Held: 1. In his first enumeration of error, Gibbs contends that the evidence is not sufficient to support the findings of guilty. There is no dispute that an armed robbery occurred and that all the ready cash was taken from the manageress of a convenience store. One of the three robbers (Gibbs) forced the manageress to remove the clothes from the lower portion of her body, lie down on the floor, and had exposed his penis when the police arrived in answer to a possible prowler alert. Gibbs forced the young woman to accompany him outside the store pointing a shotgun at her head. Gibbs fired two shots at the police officer who had ordered him to come from within the store and to surrender. The shotgun fell to the ground during a struggle with the female and Gibbs ran from the scene. He was very quickly apprehended near the scene of the robbery wearing the same clothes identified as those of the person who attempted the rape and fired the shotgun at the officer. When Gibbs was brought back to the store, a wad of money was found in his shirt pocket, with a deposit slip for the day's store receipts. Both the female victim and the police officer unequivocally identified Gibbs. Under the above-stated facts, there is no room for reasonable doubt as to guilt. No matter how many trials may be had, the facts 418 and law demand the verdict of guilty, and such it would be, unless both the facts and law were ignored by the jury and the jurors' oaths violated. Hussey v. State, 69 Ga. 54, 57; Poole v. State, 100 Ga. App. 380, 384 (111 SE2d 265). Of course, a verdict is never demanded in a criminal case in the sense that the court may direct a verdict of guilty. However, where the defendant makes no statement denying his guilt and the evidence authorizes only a guilty verdict, such verdict is demanded in the sense that errors occurring on the trial may be harmless. Coleman v. State, 237 Ga. 84, 93-94 (226 SE2d 911). We conclude therefore that any rational finder of fact would have found Gibbs guilty beyond reasonable doubt under the facts presented. Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528). 2. In his second enumeration of error, Gibbs complains that he was forced to proceed to trial with counsel not of his choosing and was denied any decision in the tactics advanced by that counsel. The facts giving rise to this enumeration are that the crime occurred in May 1982. Gibbs retained a certain attorney as counsel. Gibbs entered a plea of guilty to the charges in August, 1982, but subsequently withdrew the plea. Meanwhile the victim of the robbery, a dependent wife of a serviceman, had joined her husband in Germany. The trial was specially set for January 10, 1983, and the victim was returned from Germany for that date. Approximately five months after the entry of the guilty plea but only a few days before the rescheduled trial on the merits, Gibbs released the attorney as his retained counsel. As an indigent Gibbs sought the appointment of a public defender. The trial court honored that request and a second attorney was appointed. When trial was called, Gibbs refused to cooperate in any manner with the first attorney and objected to proceeding to trial with the public defender because she was unfamiliar with the case. The trial court then appointed the first attorney to act with and assist the public defender in the defense of the case, but with the first attorney acting as lead counsel. Gibbs objected to this attorney making an opening statement or conducting any cross-examination of state's witnesses. The trial court urged the attorney to act in his professional judgment and protect the rights of Gibbs irrespective of Gibbs' expressed desires. The attorney made an opening statement and conducted vigorous cross-examination of all government witnesses with a view to challenging the certainty of their identification of Gibbs as the offender. Gibbs never stated any reason for his discharge of this attorney and makes no contention that the public defender was inadequate in any way other than a lack of preparation. Both counsel acted beneficially and appropriately in the cross-examination of witnesses, making a motion for mistrial and conducting closing arguments. The record also reflects that counsel 419 worked in harmony, conferring numerous times during trial, raised numerous objections and sought to impeach witnesses by using the transcript of pretrial proceedings. It is apparent from the record that the first attorney was well prepared to try a difficult case and Gibbs in fact received adequate representation. When one considers that a special trial date was set for the out-of-country witness, and that Gibbs waited until just before trial to raise questions of counsel, one is ineluctably led to the belief that Gibbs used the question of representation by counsel as a dilatory tactic. See Pope v. State, 140 Ga. App. 643, 646 (231 SE2d 549). Gibbs as an indigent defendant did not have the right to change or refuse his court-appointed counsel or to select appointed counsel. Kesler v. State, 249 Ga. 462, 474 (12) (291 SE2d 497); Garrett v. State, 159 Ga. App. 27 (282 SE2d 683). Nor may a defendant refuse to cooperate with his attorney and then claim improper representation. Rivers v. State, 250 Ga. 303, 308 (298 SE2d 1). Under these circumstances, inasmuch as Gibbs declined to defend himself, insisted that the appointed public defender should not proceed because she was allegedly unprepared, but for unstated reasons refused to allow a well-prepared counsel to defend him, we can find no error in the trial court denying a continuance. We believe the trial court acted fully to insure that this criminal defendant receive what the law demands: a good and adequate defense in the face of what apparently were delaying tactics possibly designed to avoid the trial altogether. See Clark v. State, 159 Ga. App. 438 (1) (283 SE2d 666). 3. In his next enumeration of error, Gibbs urges the trial court erred in allowing the substance of radio reports between officers responding to the crimes charged against Gibbs to be considered by the jury on the ground the reports were hearsay. This evidence was admitted by the trial court with the cautionary and limiting admonition that it could only be considered to explain the witness' ensuing conduct. It is beyond question that the evidence was admissible for that purpose. Lord v. State, 157 Ga. App. 104, 105 (1) (276 SE2d 153). Moreover, this same evidence was offered and admitted through the persons who uttered the communication, thus removing any hearsay taint. Wilson v. State, 246 Ga. 62, 67 (2) (268 SE2d 895). This enumeration lacks merit. 4. In his last enumeration of error, Gibbs contends the court's charge on aggravated assault was overly broad, being cast in language extending beyond the specific acts making up the assault to rape alleged in the indictment. The trial court in its charge simply charged the entire code section, thus including language appropriate to the charge and language that was not wholly responsive to the charge. However, no request to limit the charge was made nor was an *420 objection made to the overly broad charge. It generally is not grounds for a new trial that an entire code section is charged although only a part thereof is applicable. Stevens v. State, 247 Ga. 698, 706 (13) (278 SE2d 398); Webb v. State, 159 Ga. App. 403, 405 (2) (283 SE2d 636). We find no prejudice in this case. Judgment affirmed. Shulman, C. J., concurs. McMurray, P. J., concurs in the judgment only.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343767/	168 Ga. App. 435 (1983) 309 S.E.2d 375 RIDGLEY v. HELMS et al. 66862. Court of Appeals of Georgia. Decided September 21, 1983. Rehearing Denied October 17, 1983. William C. Rumer, Lee R. Grogan, Jr., for appellant. Samuel W. Oates, Jr., for appellees. QUILLIAN, Presiding Judge. Sheryl Lynn Ridgley, brings this appeal from the final order of adoption of her minor child by appellees. Sheryl is the unmarried, natural mother of a female baby born to her on September 21, 1982. She was fifteen years of age at that time. During the sixth or seventh month of her pregnancy she first thought of letting someone adopt the child. Her parents were of the opinion she should place the child for adoption. A call to the Edgewood Baptist Church was received by Mrs. Roland about placing the child. Mrs. Roland made the necessary arrangements and discussed the adoption with Sheryl and her mother. Sheryl entered the hospital early because of complications 436 on September 20th. Her doctor made a diagnosis of "preeclampsia, elevated blood pressure . . ." The following morning Sheryl had "a seizure [grand mal] which changed the diagnosis from preeclampsia to eclampsia." (Eclampsia: convulsions and coma occurring in a pregnant woman, associated with hypertension. Dorland's Medical Dictionary.) She was treated, on the morning of September 21st, with "sedatives which included sodium luminal and magnesium sulfate." Sodium luminal is a barbiturate, a sedative, a hypnotic drug, commonly called phenobarbital. Magnesium sulfate is used to control irritability of the nervous system. Both drugs are used to control seizure activities. Sheryl gave birth to her daughter around 4:20 p. m. the afternoon of September 21st. That evening around 10:00 p. m. and every six hours thereafter she received another dose of those medications. The following morning, September 22nd, the attorney representing the adoptive parents, and Ms. King, a medical social worker in the hospital, went to Sheryl's room for the purpose of having her sign the consent to adoption papers. Sheryl was sleeping. She was awakened and they spoke to her for a few minutes. Ms. King testified that Sheryl "assured us that she was awake and we agreed that we felt that she was. You [the lawyer for the Helms] went through three different forms and she signed for you and read them. You read from your copy while she went over the copy she had in her hand. And [sic] received the signatures for those forms and then I went over the short form that I had for her to sign. After the signature we both asked her if there were any questions and she indicated that she understood the proceedings and that she had no questions at that time." Ms. King was of the opinion that Sheryl was alert, and her responses to the questions were prompt and appropriate. Dr. Flanagan, Sheryl's doctor, testified he was aware that the baby was up for adoption and "the mother was also aware the baby was for adoption . . ." After she had the seizure and had received medication for it, he spoke with her that night. She knew what was going on. He saw her the morning after she had given birth in her room, around seven o'clock. She was awake, "somewhat sedated but alert . . ." He was asked: "Q. Would you say that she was able to carry on a conversation other than being sleepy, so to speak? A. Yes." When she left the hospital on the 24th, Sheryl was "mentally sound and normal." Sheryl testified that the day that she went home from the hospital her mother reminded her that she had 10 days to revoke her consent to the surrender of her child for adoption. She said she changed her mind the first week she was home but only called Mrs. Roland and asked her if she wanted her baby back "it would hurt 437 them [the adoptive parents], wouldn't it?" Mrs. Roland said, "yes, it would probably kill them." Sheryl took no action to revoke the consent in writing until the petition for adoption was filed. She filed an objection to the petition. Sheryl testified that she had a learning disability and needed glasses to read. She did not have her glasses with her in the hospital when she signed the consent to adoption. When things are read to her it is necessary for them to be repeated for her to understand them, even though she has a normal IQ. This was confirmed by her teacher in high school. The judge asked Sheryl to read aloud that portion of the consent to adoption concerning the withdrawal of consent only by written notice within ten days. After she had read it to the court, he asked her what she had read. Sheryl stated: "That after ten days I couldn't change my mind." Following a hearing on Sheryl's objection to the adoption, the trial court found that Sheryl was aware of what she was doing at the time that she had signed papers releasing her child for adoption, and that her doctor had found Sheryl, on the morning she signed the papers, "somewhat sedated but alert . . . and able to carry on a normal conversation and was otherwise fully functioning." He observed that Mrs. Roland spoke with Sheryl on the morning of the 22nd and visited her that afternoon, and on both occasions found Sheryl "alert, responsive and able to engage in normal conversation." The court found that Sheryl knew before she went to the hospital, during her stay in the hospital, and after she left the hospital that she was going to release her child for adoption. He found that she did not rescind or revoke her election to surrender her child for adoption within ten days following the signing. The court concluded, based upon his observation of Sheryl during her testimony, that she was capable of understanding, and did understand the nature and importance of the documents she executed, and that she had ten days to withdraw her consent. He found that although she was sedated at the time of execution, she had known for several months prior to the birth of the child that the child was to be placed for adoption. She recognized the adoptive parents' attorney, knew she signed papers releasing her child for adoption, and had ten days to withdraw her consent but failed to do so. He concluded that Sheryl voluntarily and knowingly signed the consent documents, was furnished with notarized copies, and was reminded by her mother upon her return home that she had ten days to change her mind. She did not revoke her consent within the ten-day period although she testified that she did change her mind during that period. The court concluded that the objector had failed to show cause why the adoption should not proceed. Sheryl Ridgley brings this appeal. Held: 1. The appellant asserts that the trial court erred in finding that 438 consent was freely and voluntarily given. We do not agree. The trial court sat as the finder of fact and gave its reasoning in its order for finding that the mother, although sedated, had been seen earlier by her doctor, talked to Mrs. Roland on the morning she signed the papers, and Ms. King, the social worker at the hospital and all found that she was alert and capable of carrying on a normal conversation. The trial court's ruling is supported by the evidence and unless it is clearly erroneous an appellate court is not authorized to set it aside. OCGA § 9-11-52 (a) (Code Ann. § 81A-152). We cannot say, as a matter of law, that the finding of the trial court that the mother's consent was freely and voluntarily given is clearly erroneous. Ritchie v. Dillon, 103 Ga. App. 7 (2) (118 SE2d 115); McCall v. VanPopering, 124 Ga. App. 149 (1) (183 SE2d 411); McGowan v. Wilkinson, 145 Ga. App. 691 (1) (244 SE2d 626). 2. The third enumeration of error alleges "[t]he trial court erred as a matter of law in holding that it was without power to allow the objections of the natural mother because the ten day revocation period had passed without any written withdrawal of consent by Sheryl Ridgley." Counsel has failed to furnish us a citation to the record where this ruling may be found and our reading of the record has not revealed such a ruling. In its order, the trial court discussed the facts and concluded as a matter of law that the surrender documents were voluntarily and knowingly signed by the objector. She was furnished with photostatic copies of the executed papers which contained clear and unambiguous language, identical with that found in the statute, that such surrender could only be withdrawn by written notice to the adoptive parents within ten days which was not done. The court concluded since the documents were knowingly and intelligently executed, she was provided copies, and failed to exercise her right to withdraw her consent within ten days, and the adoptive parents had made out a prima facie case for adoption "and that the Objector has failed to show cause why the adoption should not proceed" that Sheryl's intervention and objection should be denied. Under Code Ann. § 74-403 (a) (now OCGA § 19-8-3 (a)), no adoption is permitted except with the written consent of the living parent or parents of a child. Such consent, when given freely and voluntarily may be revoked as a matter of right within ten days after signing the document. OCGA § 19-8-4 (b) (Code Ann. § 74-404). After ten days, although consent may not be withdrawn as a matter of right "it does not preclude such revocation prior to final adoption for good and sufficient cause." Duncan v. Harden, 234 Ga. 204, 206 (214 SE2d 890); accord: Wellfort v. Bowick, 147 Ga. App. 565 (1) (249 SE2d 363). It is not contested that Sheryl's consent was not withdrawn within 439 the ten-day period. Thus, there remain only two issues: (1) was the consent freely and voluntarily given, and (2) was good and sufficient cause shown to void such consent if it was voluntarily given. The court found that the consent was freely and voluntarily given and concluded, as a matter of law "that the Objector has failed to show cause why the adoption should not proceed . . ." This is an affirmative finding that the objector, Sheryl Ridgley, had failed to show any cause good or sufficient, as to why she should not be held to her original consent and failure to withdraw it within the statutory period. We find no merit in this enumeration. 3. Appellant argues that the court erred "in not considering the report of the Department of Family and Children Services even though this consideration is mandated by statute." The trial court stated that he had received the report and "did not read it in detail. I only read her recommendation." He correctly cited the report's recommendation and then stated to both counsel: "I'll be glad to let you gentlemen examine it in its entirety. The Court will scan it." We agree with counsel that it is mandatory for the trial court to consider the investigative report and the recommendations contained therein. Chandler v. Cochran, 247 Ga. 184, 185 (275 SE2d 23). However, the trial court did consider the report's recommendations and stated for the record that he would scan the report. We find no violation of OCGA § 19-8-13 (a) (1) (Code Ann. § 74-412) which requires that the trial court shall give consideration to the investigation report and the recommendations contained therein. Wellfort v. Bowick, 147 Ga. App. 565 (3), supra. Judgment affirmed. Sognier and Pope, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343691/	264 P.2d 396 (1953) STATE ex rel. KLINE v. EIGHTH JUDICIAL DISTRICT COURT et al. No. 3774. Supreme Court of Nevada. December 2, 1953. George E. Marshall, of Las Vegas, for Relator. Ralli, Rudiak & Horsey, of Las Vegas, for Respondent. BADT, Justice. Relator's petition presents the questions (1) of the timeliness of the filing of an affidavit of prejudice under our statute, (2) the sufficiency of the affidavit, and (3) the question of implied waiver of the right to insist upon the disqualification. Section 8407, N.C.L. 1931-1941 Supp., under whose provisions the matter must be determined, reads in part as follows: "A judge shall not act as such in an action or proceeding: * * . "Fifth, if either party to a civil action in the district court shall file an affidavit alleging that the judge before whom the action is to be tried has a bias or prejudice either against him or in favor of an opposite party to the action, such judge shall proceed no further therein, but either transfer the action to some other department of the court, if there be more than one department of said court in said district, or request the judge of some other district court of some other district to preside at the hearing and trial of such action. "Every such affidavit must be filed before the hearing on any contested matter in said action has commenced, * ." Was the affidavit in question filed before the hearing on any contested matter in said action had commenced? Relator was defendant in an action pending in said district court. On application of the plaintiffs the court had entered a temporary restraining order restraining the demolishing of a certain structure, and had noticed their motion for a temporary injunction. At 10:00 a.m., August 12, 1953, the time set for 397 the hearing of such motion, the court announced the same. Defendant's counsel then asked that the record show that he appeared for the defendant (the defendant's first appearance) and stated that he would like to make a preliminary motion. He then moved the association of a New York attorney. Counsel for plaintiffs announced that plaintiffs had no objection but the court denied the motion for "its own reasons." Counsel for plaintiffs then filed a substitution of attorneys and handed to defendant's attorney a certified copy of the plaintiffs' second amended complaint, which had just been filed by leave of court. Defendant's attorney then inquired of the court: "Are we proceeding on the second amended complaint?" and the court replied: "We will when you get ready, but I realize that it has taken you by surprise. If you wish to have the matter continued ." Defendant's counsel then asked the court to indulge him for 15 or 20 minutes to permit him to make a preliminary examination of the second amended complaint. "* * * I could determine then whether I would want to move against it or whether we would want to proceed in this matter." The court declared a recess. Some 25 minutes later the parties returned to the courtroom, court was reconvened and the following occurred according to the clerk's minutes no reporter being then present: "On stipulation of counsel by the court ordered that the temporary restraining order heretofore issued herein shall remain in force until such time as a motion to vacate same has been ruled on by the court herein. Further ordered that the defendant be permitted 15 days in which to plead to the second amended complaint filed herein." Court then adjourned. Two days later, on August 14, 1953, defendant filed her affidavit of prejudice with counsel's certificate that the same was filed in good faith and without purposes of delay, and paid the statutory $25 fee. On August 18 the plaintiffs served and filed their motion to strike the affidavit, and on September 11 such motion was heard and submitted and the same was granted upon the ground that the affidavit was not timely filed. Unless the defendant, relator herein, was precluded by reason of the fact that the hearing on a contested matter in said action had commenced, the judge was deprived of all discretion in the matter and it was his statutory duty to proceed no further. State ex rel. Stokes v. District Court, 55 Nev. 115, 27 P.2d 534. No cases in point have been cited by either party. Respondent insists that when the parties appeared in court in response to the notice and the court announced the case, the hearing commenced, and it was too late, under the statute, to file an affidavit of prejudice. But the parties had not even announced that they were ready to proceed with the hearing. Preliminary matters as to establishing who were counsel of record in the case and as to the recess to permit counsel for defendant an opportunity to examine the second amended complaint were all without objection or contest. The orders that followed were made upon stipulation. In no sense are we able to say with any logic that the hearing of a contested matter in the action had commenced. Accordingly the filing was timely under the statute. It is next contended by respondent that the relator's desire to disqualify the judge was waived by her having thereafter filed certain motions. These, however, were addressed to the court and not to the judge nor were they ever presented, argued or submitted. They did not, in our opinion, constitute a waiver. Respondent's next attack is upon the sufficiency of the affidavit. As noted, the allegation required by the statute is that the judge "has a bias or prejudice either against him or in favor of an opposite party to the action." The affidavit filed by the defendant alleged that the judge "has a bias or prejudice either against her, or in favor of plaintiffs in said action." Relator contends that this affidavit, in its alternative wording, failing to allege definitely a bias or prejudice in favor of the plaintiffs or a bias or prejudice against the defendant, alleges neither and therefore "fails to accomplish what the statute prescribes." We agree that a construction of the statute is called for. No authorities in point have been cited. *398 The essence of recusation is the possession by the judge of an attitude which may impair his impartiality in the cause before him. Assuming that attitude to exist, whether it be one of prejudice against one litigant or, on the other hand, be one of bias or favor towards the other litigant would seem to be of little moment. In either event the result would be the same lack of impartiality. Our statute, however, makes reference to such a distinction. Did the legislature intend that the affidavit shall specify in which direction the bias or prejudice lay? If so the affidavit in the case before us would appear to be insufficient. The language in question appears to have been taken from the federal statute. 28 U.S.C.A., sec. 144. That statute, however, also specified that the bias or prejudice must be "personal" and that facts and reasons in support of the charge must be stated. Our statute has eliminated both of these features and it is, therefore, difficult to see the significance of any specification of the direction of the bias or prejudice. Our original statute (considered in State ex rel. Beach v. District Court, 53 Nev. 444, 5 P.2d 535) simply required the assertion that on account of bias, prejudice or interest of the judge the affiant could not obtain a fair and impartial trial. This remains the heart of the question. Under neither the original nor the present statute need facts and reasons be stated in support of the charge. A specification of the direction of the bias or prejudice without such facts and reasons certainly could add nothing to the "imputation for the disqualification" of the judge. See Clover Valley Lumber Co. v. District Court, 58 Nev. 456, 83 P.2d 1031, 1034. The legislature, then, may not have intended by the language in question to require such a specification, but simply to tie the bias and prejudice to the litigation at hand. This would appear to be the more reasonable view. The language in question, then, would in effect be the equivalent of the former reference to a fair and impartial trial. Without such language in one form or the other there would be no indication that the bias and prejudice with which the judge was charged related to the cause. If this be so then the assertion in the disjunctive cannot be said to be meaningless, or to be no imputation whatsoever. The assertion simply is that bias or prejudice exists which, since it concerns the litigants, concerns the litigation at issue. It is ordered that the respondent judge proceed no further in said action, but either transfer the action to some other department of the court or request the judge of some other district court of some other district to preside at the hearing and trial of said action, with due regard to the provisions of sec. 8407.02, N.C.L. 1931-1941 Supp. EATHER, C.J., and MERRILL, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342389/	672 S.E.2d 759 (2009) James E. FULFORD Jr., Executor for the Estate of Mary Fulford, Plaintiff-Appellee, v. Antonio Javon JENKINS; County of Duplin; Duplin County Department of Social Services; Millie I. Brown, Individually and in her Official Capacity as Director of Duplin County Department of Social Services; De Wana Kenan, Individually and in her Official Capacity as a Social Worker with the Department of Social Services; Sherita Wright, Individually and in her Official Capacity as a Social Worker with the Duplin County Department of Social Services; Nanette Smith, Individually and in her Official Capacity as a Social Worker with the Department of Social Services; and Elva Quinn, Individually and in her Official Capacity as a Social Worker with the Duplin County Department of Social Services, Defendants-Appellants. No. COA08-675. Court of Appeals of North Carolina. February 17, 2009. 760 Valentine & McFayden, P.C., by Stephen M. Valentine, Beaufort, for Plaintiff-Appellee. Womble Carlyle Sandridge & Rice, PLLC, by James R. Morgan, Jr. and Christopher J. Geis, Winston-Salem, for Defendants-Appellants. McGEE, Judge. Plaintiff filed his complaint on 28 October 2005, alleging that Duplin County; Duplin County Department of Social Services (DSS); Millie I. Brown, Director of DSS; and DSS social workers De Wana Kenan, Sherita Wright, Nanette Smith and Elva Quin (collectively Defendants) were negligent in their supervision of a thirteen-year-old boy (the Juvenile) over whom they exercised control. Plaintiff alleged in his complaint that Defendants arranged placement of the Juvenile with his grandmother on 17 September 2003, and that on 30 October 2003 the Juvenile repeatedly stabbed his grandmother's next door neighbor, Mary Fulford, resulting in her death. Plaintiff's complaint also included a claim against the Juvenile, which is not the subject of this appeal. Defendants filed a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure on 9 January 2008, arguing that Defendants were protected by the doctrine of governmental, or sovereign, immunity from Plaintiff's suit. N.C. Gen.Stat. § 1A-1, Rule 56. Defendants further argued that Plaintiff's complaint failed to state valid claims against individual Defendants in their individual capacities. By orders entered 20 March 2008, the trial court granted summary judgment in favor of the individual defendants in their individual capacities, but denied summary judgment for Duplin County, DSS and the individual defendants in their official capacities. Defendants appeal. In Defendants' appeal, they argue the trial court erred in partially denying their motion for summary judgment because they are immune from suit in this case based upon the doctrine of governmental immunity. We disagree. "Summary judgment is properly granted only `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" "On appeal, our standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law." "The evidence presented is viewed in the light most favorable to the non-movant." "Under the doctrine of governmental immunity, a county is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity." When a county purchases liability insurance, however, it waives governmental immunity to the extent it is covered by that insurance. N.C. Gen.Stat. § 153A-435(a)(2004). McCoy v. Coker, 174 N.C.App. 311, 313, 620 S.E.2d 691, 693 (2005) (citations omitted). In the case before us, Duplin County purchased an insurance policy (the policy) through its participation in the North Carolina Counties Liability and Property Insurance Pool Fund. The dispositive issue in this case is whether the policy covers the acts alleged in Plaintiff's complaint, thus constituting a waiver of governmental immunity by Duplin County. "It is defendants' burden to show that no genuine issue of material fact exists that the policy does not cover [their] actions in the instant case." Id. at 313-14, 620 S.E.2d at 693, citing Marlowe v. Piner, 119 N.C.App. 125, 127-28, 458 S.E.2d 220, 222 (1995). This Court's review of contract provisions is de novo. Sutton v. Messer, 173 N.C.App. 521, 525, 620 S.E.2d 19, 22 (2005). It is well established that contracts for insurance are to be interpreted under the same rules of law as are applicable to other written contracts. One of the most fundamental principles of contract interpretation is that ambiguities are to be construed against the party who prepared the writing. Therefore, in an insurance contract 761 all ambiguous terms and provisions are construed against the insurer. Chavis v. Southern Life Ins. Co., 318 N.C. 259, 262, 347 S.E.2d 425, 427 (1986) (citations omitted). Duplin County purchased General Liability Coverage in the amount of $2,000,000.00 per occurrence, without any deductible. [R.p. 83] The "General Liability Contract Declarations" section of the policy contains the following relevant provisions: A. Coverage Agreement The Fund agrees, subject to the limitations, terms, and conditions hereunder mentioned: 1. to pay on behalf of the Participant all sums which the Participant shall be obligated to pay by reason of the liability imposed upon the Participant by law or assumed by the Participant under contract or agreement for damages on account of Personal Injury, Bodily Injury ... including death at any time resulting therefrom, suffered or alleged to have been suffered by any persons ... arising out of any Occurrence from any cause other than as covered by ... Section V (Professional Liability) of the Contract[.] .... K. Definitions .... 10. "Occurrence" means [a] ... happening or event or a continuous or repeated exposure to conditions which result in Personal Injury [or] Bodily Injury ... during the Contract Period. All Personal Injury or Bodily Injury to one or more persons ... arising out of ... a happening or event or continuous or repeated exposure to conditions shall be deemed an Occurrence. .... E. Exclusions Applicable to General Liability This coverage does not apply to any of the following: .... 13. Public Officials Liability to any liability for any actual or alleged error, ... act, or omission, or neglect or breach of duty by the Participant, or by any other persons for whose acts the Participant is legally responsible arising out of the discharge of duties as a political subdivision or a duly elected or appointed member or official thereof. [R.pp. 84, 94, 88] Defendants argue that the Public Officials exclusion to the General Liability section of the policy serves to exclude them from liability coverage for Plaintiff's claims, thus rendering them immune from suit due to governmental immunity. Defendants cite two opinions from our Court which held that exclusionary provisions in the relevant insurance policies, identical in language to the Public Officials exclusion contained in the General Liability Coverage section of the policy in this case, served to exclude the policyholders (New Hanover and Orange Counties) from coverage for the claims against them. See Satorre v. New Hanover County Bd. of Comm'rs, 165 N.C.App. 173, 598 S.E.2d 142 (2004); Doe v. Jenkins, 144 N.C.App. 131, 547 S.E.2d 124 (2001). In Satorre and Doe, our Court held that because the counties were excluded from coverage for the claims brought against them due to the relevant, identical provisions in their policies, they were protected by governmental immunity and thus immune from suit. Assuming arguendo that Defendants' interpretation of the General Liability portion of the policy is correct, our analysis does not end there. The Satorre and Doe opinions do not discuss any additional coverage the defendants in those cases might have purchased. Duplin County purchased Professional Liability Coverage in addition to its General Liability Coverage, including coverage for Public Officials Liability in the amount of $2,000,000.00 per occurrence, which included a $5,000.00 deductible for each wrongful act of Duplin County. [R.p. 133] The relevant sections of this "Professional Liability: Law Enforcement and Public Officials Contract Declarations" coverage are as follows: A. Coverage Agreements. .... 2. Public Officials Coverage The Fund will pay on behalf of the Participant or a Covered Person, or both, all sums which the Participant or Covered Person shall become legally obligated to 762 pay as money damages because of any civil claim or claims brought against the Participant or a Covered Person arising out of any Wrongful Act of any Covered Person acting in his capacity as a Covered Person(s) of the Participant and caused by the Covered Person while acting in his regular course of duty. .... G. Exclusions Applicable to Public Officials Coverage. This coverage does not apply to any claim as follows: .... 4. for Bodily Injury[.] .... K. Definitions. .... 2. "Bodily Injury" means bodily injury... sustained by a person including death as a result of an injury ... at any time. .... 12. "Wrongful Act" means any actual or alleged error or ... act or omission or neglect or breach of duty including misfeasance, malfeasance, nonfeasance and "Employment Practices Violation(s)" by a Covered Person while acting within the scope of his professional duties or Fund approved activities. [R.pp. 134, 141, 143] The Professional Liability Coverage includes a section for Public Officials Coverage. If this Public Officials Coverage is in conflict with the Public Officials Liability exemption in the General Liability section of the policy, the Public Officials Coverage must control. The Professional Liability Coverage section of the policy is a contract in itself, as it was bargained for, and separate consideration was provided by both parties for this contract. Therefore, though all of the provisions of the policy must be interpreted in pari materia, Sutton, 173 N.C.App. at 525, 620 S.E.2d at 22, because the Professional Liability Coverage section was purchased in addition to the General Liability Coverage section, the provisions in the Professional Liability Coverage section supplement and increase Duplin County's coverage. See McCoy, 174 N.C.App. at 314, 620 S.E.2d at 693. Otherwise, the relevant provisions of this additional coverage would have no effect, which would violate the rules of contract interpretation. See Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299-300, 524 S.E.2d 558, 563 (2000) (citations omitted). The explicit language of the Public Officials Coverage portion of the Professional Liability Coverage section, along with the definition of "Wrongful Act" given in that section (act or omission or neglect or breach of duty including misfeasance, malfeasance, nonfeasance), clearly grant coverage to Duplin County for the acts and omissions alleged by Plaintiff, unless there is a specific exemption granted in this section. Defendants argue that the exclusions portion of the Professional Liability Coverage section provide exemption for the acts or omissions alleged in Plaintiff's complaint. Specifically, this section excludes coverage for claims "for bodily injury," which is defined in the section as including death. In this case, Plaintiff's second cause of action is a negligence claim against Defendants. Plaintiff alleges that Defendants were negligent in placing the Juvenile, known to Defendants to be dangerous, with his elderly grandmother who was in poor health and thus unable to appropriately supervise the Juvenile. Further, the Juvenile had been involuntarily committed to psychiatric hospitals on three separate occasions presenting with homicidal ideations and other severe psychiatric issues. Plaintiff alleged the Juvenile ceased taking his antipsychotic and mood stabilizing medications, causing an increase in his unstable behaviors. Plaintiff further alleged that once the Juvenile ceased taking his medications, the Juvenile's grandmother contacted DSS on a number of occasions requesting help in managing the Juvenile. According to Plaintiff's complaint, DSS did not respond to these requests from the Juvenile's grandmother, and the Juvenile later killed Mary Fulford. Although Plaintiff alleged Defendants' negligence caused the bodily injury and ultimate death of Mary Fulford, we do not view this as a claim "for bodily injury" as excluded by the Public Officials Coverage section. Plaintiff's action constitutes a negligence claim against Defendants for failure to fulfil their 763 duties to supervise the Juvenile in a reasonable fashion. See Herndon v. Barrett, 101 N.C.App. 636, 641-42, 400 S.E.2d 767, 770-71 (1991). Therefore, the acts and omissions alleged in Plaintiff's complaint are not excluded from coverage by the Public Officials Coverage portion of the Professional Liability Coverage section of the policy. As we hold that Duplin County purchased liability insurance covering the alleged acts and omissions of Defendants, the doctrine of governmental immunity does not serve to bar Plaintiff's suit. In addition, a contract must be interpreted as a whole, and individual provisions within a contract must be interpreted within the context of the entire contract. Sutton, 173 N.C.App. at 525, 620 S.E.2d at 22. [A] contract of insurance should be given that construction which a reasonable person in the position of the insured would have understood it to mean and, if the language used in the policy is reasonably susceptible of different constructions, it must be given the construction most favorable to the insured, since the company prepared the policy and chose the language. Grant v. Emmco Ins. Co., 295 N.C. 39, 43, 243 S.E.2d 894, 897 (1978) (citation omitted). "The heart of a contract is the intention of the parties which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time." Therefore, in the interpretation of language contained in an insurance policy, the court may take into consideration the character of the business of the insured and the usual hazards involved therein in ascertaining the intent of the parties. McDowell Motor Co. v. New York Underwriters Ins. Co., 233 N.C. 251, 254, 63 S.E.2d 538, 540-41 (1951) (citations omitted). These rules of contract interpretation provide additional support for holding against Defendants. Were we to adopt Defendants' interpretation of the policy, we would have to assume that Duplin County intended to purchase an insurance policy that provided it almost no coverage. See id. Because Duplin County is a governmental entity and political subdivision of the State, Doe, 144 N.C.App. at 134, 547 S.E.2d at 127, if the policy exempts Duplin County from coverage for all of its governmental functions, it is uncertain what acts by Duplin County would be covered by the policy. The vast majority of actions for which Duplin County could face liability are those performed in its official capacity as a political subdivision of this State. It is thus "unclear how the contracting parties could have had any meaningful meeting of the minds as to what services were and were not excluded" if the policy as written was not intended to cover the official acts of Duplin County. Cowell v. Gaston County, ___ N.C.App. ___, ___, 660 S.E.2d 915, 919-20 (2008). Defendants' argument is without merit. We hold that the trial court did not err in denying Defendants' motion for summary judgment. Affirmed. Judges BRYANT and GEER concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342396/	672 S.E.2d 429 (2008) CORDELL v. BANK OF NORTH GEORGIA. No. A09A0193. Court of Appeals of Georgia. December 31, 2008. 430 Kitchens, Kelley & Gaynes, Mitchell Stephen Rosen, David Franklin Cooper, Atlanta, for appellant. Beloin, Brown, Blum & Baer, Frederic S. Beloin, Woodward & Stern, Corey M. Stern, Atlanta, for appellee. BLACKBURN, Presiding Judge. In this action on a guaranty, Steve Cordell appeals the grant of summary judgment to Bank of North Georgia, in which the trial court found that no disputed issues of fact existed as to Cordell's liability as a guarantor for the payment of a promissory note in default. Cordell argues that over his objection, the trial court erroneously considered an untimely affidavit from the bank that was filed only seven days before the summary judgment hearing and only two weeks before the court ruled on the summary judgment motion. We agree and therefore reverse. Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment. Matjoulis v. Integon Gen. Ins. Corp.[1] The undisputed evidence shows that in January 2008, the bank sued Cordell (as well as the maker of the promissory note and another guarantor) to recover monies allegedly due on a $2.65 million promissory note that Cordell had allegedly guaranteed up to $1 million. As exhibits, the unverified complaint attached alleged copies of the note, two renewals/modifications of the note, the two guaranties, and a demand letter sent by the bank to Cordell. Within days of Cordell's answer to the suit (in which he admitted to executing the guaranty but denied most everything else), the bank in February 2008 moved for summary judgment against Cordell and in its favor, filing an affidavit from a bank official that purported to authenticate and to attach as exhibits copies of the note, the two renewals/modifications, the Cordell guaranty, and the demand letter. However, the affidavit in fact failed to attach the documents as exhibits. Relying on the provisions of the missing documents, the bank official affied that the note was in default, that Cordell had refused to pay under the guaranty, and that Cordell was liable to the bank for $1 million plus attorney fees. The bank's statement of undisputed material facts as well as its brief also relied repeatedly on the missing exhibits. In his response brief filed in March, Cordell argued that because the affidavit had no exhibits attached thereto, the bank had presented insufficient evidence to warrant summary judgment. In May, Cordell served written discovery on the bank (requesting documents) and set up some depositions for July 7 and 8. Seven days before the summary judgment hearing on June 17, the bank filed a second affidavit from the same official, which tracked the first affidavit but this time attached the missing exhibits. In its reply brief filed that same day, the bank claimed the exhibits had been inadvertently omitted from the first affidavit due to counsel error. On the day before the hearing, Cordell moved to strike the second affidavit as untimely. At the June 17 hearing, the court 431 considered the motion to strike first and denied the motion, finding that because the missing exhibits were attached to the complaint, the failure to attach them to the first affidavit did not prejudice Cordell and that therefore the court would consider the second affidavit that had attached and authenticated the missing exhibits. Although the court initially indicated it would withhold ruling on the pending motion for a few weeks to allow Cordell to take the scheduled depositions and to review the requested documents, the court changed its mind and stated it would let the parties know shortly what it would do. A few days later on June 25 (15 days after the filing of the second affidavit by the bank), the court issued a written ruling, relying on the second affidavit and granting summary judgment to the bank. Cordell appeals. 1. Cordell's first three enumerations of error focus on the court's refusal to strike the second affidavit as untimely and on the court's reliance on this affidavit in reaching its decision to grant summary judgment. He argues that the court could not consider an affidavit supporting summary judgment that was not filed at least 30 days before the hearing or at least 30 days before the court ruled on the motion. (a) Why did the second affidavit matter? Before addressing whether the court should have considered the second affidavit, we focus first on the importance of the second affidavit under the particular circumstances of this case. The first affidavit did not authenticate the key documents in this case, including the note, its two renewals, and Cordell's guaranty, as it mistakenly failed to attach those exhibits. Although these exhibits were attached to the unverified complaint, the law is well-established that "the complaint is not evidence and thus may not be considered in deciding a motion for summary judgment." (Punctuation omitted; emphasis in original.) Wellstar Health System v. Painter.[2] Unlike documents on which an expert relies in reaching an opinion, these exhibits were the heart and soul of the bank's cause of action against Cordell and therefore had to be authenticated and submitted as evidence for the bank to be awarded summary judgment. Thus, although the material on which an expert relies in reaching an affidavit opinion need only be found somewhere in the record (assuming the affidavit sufficiently identifies the materials), see Hughey v. Emory Univ.,[3] the missing exhibits here were the "best evidence" of the renewed debt and guaranty and therefore were required to be authenticated and submitted as evidence.[4] See OCGA § 24-5-4; Alcatraz Media, LLC v. Yahoo! Inc.[5] ("OCGA § 24-5-4(a), the best evidence rule, applies when, as here, a document is introduced to establish the existence or contents of the document.") (punctuation omitted). Without these documents, the bank's motion for summary judgment necessarily would have failed. Therefore, the first affidavit's failure to attach the exhibits provided the court with insufficient evidence to grant the bank's motion for summary judgment, even though those documents in an unauthenticated form were found elsewhere in the record. We note that the guaranty was authenticated in Cordell's answer in that he admitted to signing the guaranty that was attached to the complaint. See Strozier v. Simmons U.S.A. Corp.[6] ("OCGA § 24-3-30 provides that a party may avail himself of allegations contained in the other party's pleadings without the necessity of offering them into evidence."). Nevertheless, the note that was being guaranteed and its renewals were not authenticated. This demonstrates the critical need for the second affidavit, which attached the note and its renewals and authenticated 432 them. Thus, this case comes down to whether the lower court could properly consider the second affidavit in reaching its decision on summary judgment. (b) Could the court consider the second affidavit? The second affidavit was filed only seven days before the summary judgment hearing and only fifteen days before the court issued its final ruling granting summary judgment. The law is clear that "[a]ffidavits relied upon in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing." Orrel v. Amerada Hess Corp.[7]Corry v. Robinson[8] explained: OCGA § 9-11-56(c), which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6(d), which requires that when a motion is supported by affidavit, the affidavit shall be served with the motion, have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. Gunter v. Hamilton Bank, etc.[9] Accord Porter Coatings v. Stein Steel & Supply Co.[10] (Punctuation omitted.) This "filing requirement is not waived unless the opposing party acquiesces in the use of the untimely materials or the party seeking to file a late affidavit seeks and obtains an extension from the court pursuant to OCGA § 9-11-6(b) to extend the time for filing," U.S. Traffic Corp. v. Turcotte,[11] neither of which circumstance occurred here. See Corry, supra, 207 Ga.App. at 170(2), 427 S.E.2d 507. Even if the court had extended the time for filing, "[a]ny such extension of time within which to file supporting affidavits should also ensure that the party opposing the motion will have 30 days within which to respond." (Punctuation omitted.) McIntosh v. McLendon.[12] See Harrell v. Fed. Nat. Payables;[13]Wall v. C & S Bank of Houston County[14] ("any order allowing the filing of movant's affidavits after the motion for summary judgment had already been filed, without also ensuring that the opposing party had 30 days from the time allowed to respond, would be highly suspect if not fatally defective"). Here, the court ruled on the summary judgment motion without extending the time for the filing of the second affidavit and without even giving Cordell the thirty days (following the filing of the second affidavit) to take the two depositions he had scheduled and to receive the documents he had requested. Nevertheless, in granting summary judgment, the court relied on the second affidavit to authenticate the note and its renewals. The court erred, and its decision must be reversed. See Bonds v. John Wieland Homes, Inc.[15] The bank's efforts to avoid this result are to no avail. The bank first argues that the court had the discretion to consider untimely affidavits. While that may be true in non-summary judgment motions where OCGA § 9-11-56(c) does not apply (see, e.g., Walton v. Datry[16]), the court's discretion in summary judgment cases is constrained by the strictures of the 30-day rule, which requires that the nonmovant have at least 30 days to respond to evidence submitted in support of the summary judgment motion. See McIntosh, supra, 162 Ga.App. at 220(1), 290 S.E.2d 157. The bank's citation to cases where the party opposing summary judgment was allowed 433 to file untimely affidavits misses the mark, as it is well-recognized that unlike affidavits supporting summary judgment, affidavits opposing summary judgment are not subject to the 30-day rule. See OCGA § 9-11-56(c); Fairington, Inc. v. Yeargin Constr. Co.[17] See, e.g., Howell Mill/Collier Assoc. v. Gonzales[18] (allowing late-filed affidavits opposing summary judgment). The bank next argues that since the note and its renewals were attached to the complaint, this sufficed to cure any defect in the failure to attach these exhibits to the first affidavit that sought to authenticate them, as Cordell clearly had notice of them. The bank misses the point. The court simply did not have the authority to consider unauthenticated documents, regardless of whether Cordell had notice that those documents existed. Thus, Lend Lease Trucks v. TRW, Inc.[19] rejected this same argument where a timely-filed affidavit attached the key contract at issue but did not authenticate it, and a late-filed affidavit (filed the day before the summary judgment hearing) sought to cure this defect by attaching and authenticating the contract. Citing the strict requirements of the 30-day rule, Lend Lease Trucks reversed the grant of summary judgment on the ground that "the trial court improperly relied upon the [later] affidavit in granting [the] motion for summary judgment." Id. at 412(1), 425 S.E.2d 293. The fact that the unauthenticated contract was already in the record of the case did not give the court the power to rely on the second, untimely affidavit to authenticate it. Cf. Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co.[20] (even though key documents came from the files of the party opposing summary judgment, who therefore necessarily had knowledge of the documents, the court could not consider these documents in granting summary judgment, as the documents were not filed 30 days prior to the summary judgment hearing). For these reasons, the trial court erred by considering the second affidavit and attached exhibits, and in relying on them to grant summary judgment to the bank. See Gunter, supra, 201 Ga.App. at 381, 411 S.E.2d 115. 2. "In so ruling, we need not address [Cordell's] enumerations of error dealing with the merits of issues raised by the untimely materials not properly before the trial court, nor do we express any opinion on the merits of the bank's claim." Gunter, supra, 201 Ga.App. at 381, 411 S.E.2d 115. Judgment reversed. RUFFIN AND ADAMS, JJ., concur. NOTES [1] Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459(1), 486 S.E.2d 684 (1997). [2] Wellstar Health System v. Painter, 288 Ga.App. 659, 662, n. 5, 655 S.E.2d 251 (2007). [3] Hughey v. Emory Univ., 168 Ga.App. 239, 240, 308 S.E.2d 558 (1983). [4] We note that the bank's reference to a consent judgment between the debtor and the bank to establish Cordell's liability is unavailing, as the trial court properly did not rely on this document (unsigned by the court) that was filed after the summary judgment hearing. [5] Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 884(1)(a), 660 S.E.2d 797 (2008). [6] Strozier v. Simmons U.S.A. Corp., 192 Ga.App. 601, 602, 385 S.E.2d 677 (1989). [7] Orrel v. Amerada Hess Corp., 224 Ga.App. 625, 628(3), 481 S.E.2d 624 (1997). [8] Corry v. Robinson, 207 Ga.App. 167, 169-170(2), 427 S.E.2d 507 (1993). [9] Gunter v. Hamilton Bank, etc., 201 Ga.App. 379, 381, 411 S.E.2d 115 (1991). [10] Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981). [11] U.S. Traffic Corp. v. Turcotte, 246 Ga.App. 187, 188(2), 539 S.E.2d 884 (2000). [12] McIntosh v. McLendon, 162 Ga.App. 220(1), 290 S.E.2d 157 (1982). [13] Harrell v. Fed. Nat. Payables, 264 Ga.App. 501, 505(4), 591 S.E.2d 374 (2003). [14] Wall v. C & S Bank of Houston County, 145 Ga.App. 76, 79(2), n. 2, 243 S.E.2d 271 (1978). [15] Bonds v. John Wieland Homes, Inc., 177 Ga. App. 254, 256-257(1), 339 S.E.2d 318 (1985). [16] Walton v. Datry, 185 Ga.App. 88, 91(2), 363 S.E.2d 295 (1987). [17] Fairington, Inc. v. Yeargin Constr. Co., 144 Ga.App. 491, 492(1), 241 S.E.2d 608 (1978). [18] Howell Mill/Collier Assoc. v. Gonzales, 186 Ga.App. 909, 910-911(2), 368 S.E.2d 831 (1988) (physical precedent only). [19] Lend Lease Trucks v. TRW, Inc., 206 Ga.App. 410, 411(1), 425 S.E.2d 293 (1992). [20] Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga.App. 448, 449(1), 278 S.E.2d 40 (1981).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342399/	672 S.E.2d 453 (2009) GRIFFIN v. The STATE. No. A08A1629. Court of Appeals of Georgia. January 8, 2009. Michael A. Corbin, Fort Drum, NY, for Griffin. Kermit N. McManus, District Attorney, John S. Helton, Assistant District Attorney, for appellee. MIKELL, Judge. Davis Griffin appeals his conviction on two counts of selling cigarettes to a minor, a misdemeanor. Finding no error, we affirm. Viewed in the light most favorable to the jury's verdict,[1] the evidence adduced at trial shows that Griffin manages a game room that is located in a shopping center in Dalton. The game room has a concession stand, where food and cigarettes are sold. On November 28, 2005, City of Dalton police officer Tommy Ensley conducted surveillance of the shopping center from inside a store across the street. Ensley testified that, using binoculars, he watched two juveniles enter the game room. According to Ensley, the juveniles appeared to be ten and fifteen years old, respectively. Ensley testified that he saw the juveniles approach Griffin; that the older juvenile handed Griffin something; that Griffin walked behind a counter, walked back out, and handed an object to the same juvenile; that both juveniles then walked out the front door; and that the older juvenile handed the object that Griffin had given him to the younger juvenile, who stuck it in his right front pocket. Ensley could not identify the object. Ensley relayed the information to a nearby officer in a patrol car, Jamie Johnson. The juveniles saw the patrol car and took off running. Ensley testified that he confronted Griffin, who initially denied selling cigarettes to the juveniles. However, when Ensley told Griffin that he watched him through binoculars, Griffin admitted it and apologized. Johnson apprehended the juveniles. Johnson testified that he found the cigarettes in the right front pocket of the pants worn by the younger juvenile. 1. The crime of which Griffin was convicted prohibits any person knowingly to *454 "[s]ell or barter, directly or indirectly, any cigarettes or tobacco related objects to a minor."[2] A minor is "any person who is under the age of 18 years."[3] Davis argues that the state failed to prove that the juveniles in this case, who did not testify, were under the age of 18 years. Davis contends that improper hearsay testimony, to which he objected, was introduced to establish their age. We disagree. Johnson testified that he recognized the older juvenile, knew his name and nickname, and had spoken to him 20 or 30 times. Johnson testified that through his face-to-face dealings with the male in question, he had had opportunities to determine whether or not the male was a minor. Based on his physical observations of the young man, Johnson testified that the juvenile "appeared to me to be less than 18." As to the younger juvenile, Johnson testified that he was "definitely less than 18." "Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons."[4] The officer's testimony about his own observations of the juveniles was not hearsay because its value did not rest on the veracity or competency of the juveniles.[5] Rather, the officer's testimony was a conclusion or opinion based upon his personal observations of the juveniles' characteristics. "Description of one's physical observations and opinions logically flowing therefrom have long been admissible in this state."[6] Accordingly, the trial court did not err in overruling Davis's hearsay objections to the officer's testimony regarding the juveniles' ages. It follows that the evidence was sufficient to sustain Griffin's conviction.[7] 2. In his remaining enumerations of error Griffin asserts that the trial court shifted the burden of proof and denied him the right to confront his accusers. These contentions hinge on the assumption that the trial court erroneously admitted hearsay evidence. As we held in Division 1 that the officer's testimony about his own observations of the juveniles was not hearsay, Griffin's arguments fail. Judgment affirmed. SMITH, P.J., and ADAMS, J., concur. NOTES [1] See Albert v. State, 283 Ga.App. 79, 640 S.E.2d 670 (2006). [2] OCGA § 16-12-171(a)(1)(A). [3] OCGA § 16-12-170(3). [4] (Punctuation and footnote omitted.) Gilbert v. State, 265 Ga.App. 76, 77-78(2), 593 S.E.2d 25 (2003). [5] Id. at 78(2), 593 S.E.2d 25. [6] (Citations and punctuation omitted.) Holton v. State, 280 Ga. 843, 845(3), 632 S.E.2d 90 (2006) (no error in admitting officer's opinion testimony that minor scratches on defendant's face did not likely result from a scuffle). [7] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342400/	672 S.E.2d 625 (2009) DENSON v. FRAZIER. No. S09A0079. Supreme Court of Georgia. January 26, 2009. 626 Sarah L. Gerwig-Moore, for appellant. Thurbert E. Baker, Atty. Gen., Elizabeth Anne Harris, Asst. Atty. Gen., for appellee. SEARS, Chief Justice. In 2005, Rodney Denson pled guilty to aggravated assault with a deadly weapon against his wife, possession of a firearm during the commission of a felony, and cruelty to children in the first degree and nolo contendere to a charge of aggravated assault with a deadly weapon against his stepdaughter. He was sentenced to 22 years in prison followed by 13 years on probation. In 2007, he filed a petition for writ of habeas corpus alleging a violation of Boykin v. Alabama.[1] Following an evidentiary hearing, the habeas court denied the petition. We granted Denson's application for a certificate of probable cause to appeal and directed the parties to brief the following question: "Whether the habeas court erred in finding that extrinsic evidence showed that petitioner was informed that a guilty plea waives his privilege against self-incrimination, a Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), right." We now reverse. On November 22, 2004, Denson, a middle school assistant principal in the Fulton County school system, brutally attacked his wife, elementary school teacher Elletta Lynette Bailey, and his 16-year-old stepchild. Denson shot Bailey six times and threatened to shoot his stepdaughter, forcing her to cower on the floor begging for her life. Bailey survived, but she was severely injured in the attack and incurred tens of thousands of dollars in medical bills. It is doubtful she will ever fully recover. Shortly after he committed the crimes, Denson called several friends and confessed to them that he had just shot his wife. He subsequently pled guilty to aggravated assault with a deadly weapon against Bailey, possession of a firearm during the commission of a felony, and cruelty to children in the first degree. He pled nolo contendere to a charge of aggravated assault with a deadly weapon against his stepdaughter. Following an evidentiary hearing, the trial court accepted Denson's plea, and on December 1, 2005, the trial court sentenced him to 22 years in prison and an additional 13 years on probation following his release. Denson filed a petition for a writ of habeas corpus on June 8, 2007. The habeas court conducted an evidentiary hearing at which the transcript from the 2005 plea hearing was introduced into evidence. The transcript unambiguously showed that Denson was advised of two of his Boykin rights: the right to a jury trial and the right to confront the witnesses against him. However, it is equally clear from the transcript that Denson was not advised during his plea colloquy that by entering a mixed plea of guilty and nolo contendere, he was waiving his third Boykin right, i.e., the right against self-incrimination. The file from Denson's criminal case was also introduced into evidence at the habeas hearing. However, like the plea transcript, it contained no evidence that Denson was advised of his right not to incriminate himself.[2] Forced to rely on extrinsic evidence to demonstrate a valid plea, the Attorney General's office called one of Denson's two trial counsel to the stand at the habeas hearing. Denson's trial counsel testified that he did not recall which rights he went over with 627 Denson and that his usual practice is not to discuss with his clients each constitutional right they are waiving by pleading guilty or nolo contendere. He said that instead, he advises his clients in blanket terms that by entering a plea, they are waiving "all of the[ir] Constitutional rights." With respect to Denson's case in particular, he stated as follows: "I would doubt very seriously that I would have picked out each and every Constitutional right that he is entitled to and specifically discuss[ed] that particular Constitutional right." Indeed, at the habeas hearing, Denson's trial counsel could not identify the three constitutional rights the decision in Boykin requires the State to affirmatively prove the defendant was advised of and waived to uphold a guilty plea in a later proceeding. Nevertheless, on March 5, 2008, the habeas court entered a final order denying Denson's habeas petition. In Boykin, the United States Supreme Court held that a guilty plea must be set aside unless the record of the plea colloquy or extrinsic evidence affirmatively shows that the defendant knowingly, intelligently, and voluntarily waived the right: (1) to be tried by a jury; (2) to confront his or her accusers; and (3) against self-incrimination.[3] The transcript of the 2005 plea colloquy affirmatively shows that Denson was advised that he would be waiving the first two rights but not the third, and the testimony of Denson's trial counsel at the habeas hearing shows that he did not otherwise inform Denson that he was waiving his right not to incriminate himself by entering his plea.[4] As Denson correctly asserts, mere speculation that a defendant was informed of all three Boykin rights is insufficient to uphold a guilty plea challenged in a habeas proceeding.[5] Though we review a habeas court's findings of fact under a clearly erroneous standard of review,[6] the State has pointed us to no extrinsic evidence from which we could conclude that Denson knowingly, intelligently, and voluntarily waived his right against self-incrimination, and our own thorough review of the record has uncovered none. Accordingly, we must reverse the habeas court's judgment denying Denson's petition. Judgment reversed. All the Justices concur. NOTES [1] Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). [2] The criminal case file from Fulton County was introduced in two parts at the habeas hearing, and it appears to be incomplete. For example, it does not contain the indictment. Moreover, there is an intriguing reference in the plea transcript to a document the assistant district attorney noted that Denson had signed, and at the evidentiary hearing on the habeas petition, Denson's trial counsel talked about a form that is regularly used for guilty pleas that lists the rights the defendant is waiving that the defendant must sign. It is possible the document referred to by the assistant district attorney at the plea hearing and the form described by Denson's trial counsel at the habeas hearing are one and the same. However, the document mentioned at the plea hearing, whatever it was, is not contained in the portions of the Fulton County file introduced at the habeas hearing. [3] Boykin, supra, 395 U.S. at 242-243, 89 S.Ct. 1709. [4] Cf. Arnold v. Howerton, 282 Ga. 66, 68, 646 S.E.2d 75 (2007); Johnson v. Smith, 280 Ga. 235, 235, 626 S.E.2d 470 (2006). [5] See Baisden v. State, 279 Ga. 702, 703, 620 S.E.2d 369 (2005); Green v. State, 279 Ga. 687, 689, 620 S.E.2d 788 (2005). [6] Head v. Thomason, 276 Ga. 434, 436, 578 S.E.2d 426 (2003).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342403/	672 S.E.2d 90 (2009) NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY and Farm Bureau Insurance of N.C., Inc., Plaintiffs, v. Linda F. SEMATOSKI, Defendant. No. COA08-553. Court of Appeals of North Carolina. February 3, 2009. 91 Willardson Lipscomb & Miller, L.L.P., by William F. Lipscomb, Wilkesboro, for plaintiff-appellees. Doran, Shelby, Pethel and Hudson, P.A., by Michael Doran, Salisbury, for defendant-appellant. BRYANT, Judge. Defendant appeals from the trial court's order entered 13 December 2008 which allowed plaintiffs' motion for summary judgment and denied defendant's motion to compel arbitration and stay proceedings. For the reasons stated below, we reverse and remand. According to the record before us, on 7 April 2002, defendant was driving in Sarasota County Florida when she was rear-ended by a vehicle operated by tortfeasor Thomas Ferguson. Defendant was injured. Ferguson's vehicle was covered by an insurance policy issued by Progressive Insurance Company (Progressive) with a liability coverage limit of $10,000. The vehicle defendant was driving was insured by Hartford Insurance Co. of the Midwest (Hartford), which provided for uninsured and/or underinsured motorist (UM / UIM) coverage in the amount of $10,000 per person. The vehicle was registered and garaged in North Carolina. Defendant was also a named beneficiary on two insurance policies: (1) a personal auto policy issued by Plaintiff North Carolina Farm Bureau Mutual Insurance Company, which provided UM / UIM coverage up to $50,000 per person, and (2) a personal auto policy issued by Plaintiff Farm Bureau Insurance of N.C., Inc., which provided UM / UIM coverage in the amount of $100,000 per person. Both of plaintiffs' policies were applied for and issued in North Carolina. In May 2006, Progressive, Ferguson's insurance policy provider, paid defendant its $10,000 policy limit. And, on 24 May 2006, defendant voluntarily dismissed her lawsuit against Ferguson with prejudice. In November 2006, Hartford paid defendant its UM / UIM $10,000 policy limit. On 27 March 2007, in Wilkes County Superior Court, plaintiffs filed a complaint for declaratory judgment seeking to determine if defendant was entitled to recover UM / UIM coverage from the insurance policies they issued. On 9 November 2007, plaintiffs filed a motion for summary judgment. On 16 92 November 2007, defendant filed a motion to compel arbitration and stay the proceedings based on provisions in each of plaintiffs' policies that allow for arbitration of bodily injury claims involving an underinsured motorist. On 13 December 2007, after reviewing the record and considering the arguments of counsel for the parties, the trial court allowed plaintiffs' motion for summary judgment and denied defendant's motion to compel arbitration and stay proceedings. Defendant appeals. On appeal, defendant raises two issues: whether the trial court erred by (I) not staying the proceedings and refusing to compel arbitration and (II) granting summary judgment to plaintiffs. I and II Defendant first argues that the trial court erred by not staying the proceedings and not compelling arbitration. Defendant argues that the insurance policies in question involve interstate commerce and as such are governed by the Federal Arbitration Act (FAA). Following that, defendant argues that plaintiffs challenged the arbitrability of this matter on grounds an arbitrator is to decide, such as, whether defendant "is legally entitled to recover compensatory damages." We agree in part. We first consider whether this matter is governed by the FAA or, alternatively, the North Carolina Uniform Arbitration Act (UAA). "[T]he FAA preempts conflicting state law, including state law addressing the role of courts in reviewing arbitration awards." WMS, Inc. v. Weaver, 166 N.C.App. 352, 357-58, 602 S.E.2d 706, 710 (2004) (citation omitted). Under the FAA, codified under Title 9 of the United States Code Service, sections 1 et seq., the validity, irrevocability, and enforcement of agreements to arbitrate extend to the following: "A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C.S. § 2 (2002) (emphasis added). In Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), the United States Supreme Court addressed the issue of how to interpret the language "a contract evidencing a transaction involving commerce [.]" Id. at 268, 115 S.Ct. at 837, 130 L.Ed.2d at 760 (additional emphasis added). The Court reasoned that the language extended the applicability of the FAA to the limits of Congress' Commerce Power. Id. In application to the facts before it, the Court noted that the defendants, Allied-Bruce Terminix and Terminix International, were multi-state firms which utilized treatment and repair materials from outside of the plaintiff's state to satisfy their contractual obligations. Id. at 282, 115 S.Ct. at 843-44, 130 L.Ed.2d at 769. As such, "the transaction..., in fact, involved interstate commerce." Id. The North Carolina Uniform Arbitration Act (UAA) is applicable to agreements to arbitrate made on or after 1 August 1973 and prior to 1 January 2004. See N.C. Gen.Stat. §§ 1-567.19 (2001) and 1-569.3 (2007). And, the UAA makes only two exclusions. It does not apply to the following: (1) Any agreement or provision to arbitrate in which it is stipulated that this Article shall not apply or to any arbitration or award thereunder; (2) Arbitration agreements between employers and employees or between their respective representatives, unless the agreement provides that this Article shall apply. N.C. Gen.Stat. § 1-567.2(b) (2001). Here, both of plaintiffs' policies were entered into in 2001 and the arbitration agreement does not fall under either exception listed under N.C.G.S. § 1-567.2(b) (2001). Both plaintiffs are North Carolina corporations with a principal place of business in North Carolina. Plaintiffs each issued an insurance policy with defendant as a named 93 beneficiary. Both policies were applied for and entered into in North Carolina and covered vehicles registered and garaged in North Carolina. Also, there is no evidence in the record that the collection of insurance premiums or payment of insurance benefits involved or affected commerce outside of North Carolina. Therefore, we hold that on the record before us the arbitration agreement is governed by the UAA. We next consider whether the trial court, in granting plaintiffs' motion for summary judgment, ruled on issues reserved for an arbitrator. Under North Carolina General Statute 1-567.2, (a) Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable, and irrevocable except with the consent of all the parties, without regard to the justiciable character of the controversy. N.C. Gen.Stat. § 1-567.2(a) (2001). Under North Carolina General Statute 1-567.3, (a) On application of a party showing an agreement described in G.S. 1-567.2; and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied. . . . (e) An order for arbitration shall not be refused or a stay of arbitration granted on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown. N.C. Gen.Stat. § 1-567.3(a) & (e) (2001) (emphasis added). North Carolina has a strong public policy favoring arbitration. See Cyclone Roofing Co. v. David M. La Fave Co., 312 N.C. 224, 229, 321 S.E.2d 872, 876 (1984). However, our Supreme Court has held that a party may expressly or impliedly waive its contractual right to arbitration. Id. "Waiver of a contractual right to arbitration is a question of fact. [However] [b]ecause of the strong public policy in North Carolina favoring arbitration, courts must closely scrutinize any allegation of waiver of such a favored right." Id. In the instant case, plaintiffs assert that defendant waived her contractual right to arbitration when she filed a lawsuit against plaintiffs in a Florida state court. We disagree. In Cyclone Roofing Co., our Supreme Court reasoned that "[t]he mere filing of ... pleadings did not manifest waiver ... of [the] right to arbitrate under the contract. To hold otherwise ... would make parts of [the UAA] nonsensical." Id. at 230, 321 S.E.2d at 877. Plaintiff also asserts prejudice based on the expenditure of $3,402.24 in legal fees and expenses in defense of the Florida lawsuit. However, such expenses are not the type contemplated by our Supreme Court when it said one may be prejudiced if "forced to bear the expense of a lengthy trial[.]" Id. at 229, 321 S.E.2d at 876. Therefore, we hold defendant did not waive her contractual right to arbitration. Defendant argues that the trial court erred by ruling on issues that should be determined by an arbitrator. In N.C. Farm Bureau Mut. Ins. Co. v. Edwards, 154 N.C.App. 616, 572 S.E.2d 805 (2002), the defendants' UIM carrier sought to determine the rights of the parties after the defendants issued a release for a tortfeasor prior to asserting a derivative claim for UIM benefits. Id. at 617-18, 572 S.E.2d at 806. The defendants demanded the matter go to arbitration, and the UIM carrier argued that the release operated as a bar to defendant's recovery. Id. at 619, 572 S.E.2d at 806-07. On appeal, we considered the issue and held "[the] defendants' claim[ ] against their UIM carrier ... [was] not barred by the 94 execution of their limited release," and we affirmed the order of the trial court to send the matter to arbitration. Id. at 623, 572 S.E.2d at 809. In dicta, we reasoned that "[g]iven that UIM coverage is the derivative of a tortfeasor's liability, it could be argued that the logical extension of [our prior precedent] is to bar recovery of UIM benefits where a release simply states that the named tortfeasor is released from all liability." Id. at 622, 572 S.E.2d at 808. Despite our consideration of the issues in Edwards, in which we affirmed the trial court's order compelling arbitration, we have been unable to find a case in which this Court has upheld the denial of a motion to compel arbitration on grounds other than the scope of or defense to arbitrability. See Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992) (stating courts resolve doubts concerning the scope of arbitrable issues whether the issue is the contract language or an allegation of waiver, delay, or a like defense to arbitrability). Here, in plaintiffs' motion for summary judgment, plaintiffs argued that defendant was not entitled to recover derivative UM / UIM coverage from plaintiffs because (1) defendant was not entitled to recover from Ferguson after defendant released Ferguson and (2) the Florida statute of limitations for defendant to bring a suit against Ferguson has expired again precluding defendant from ascertaining primarily liability. We hold these are not arguments contesting the scope of or defense to arbitrability. Therefore, the issues should be considered by an arbitrator. Compare Register v. White, 358 N.C. 691, 693, 599 S.E.2d 549, 552 (2004) (determining whether the plaintiff's contractual right to demand arbitration was time-barred by a statute of limitations). For the aforementioned reasons we reverse the trial court's grant of summary judgment and denial of defendant's motion to compel arbitration and stay proceedings. Reversed and remanded. Judges McGEE and GEER concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342409/	672 S.E.2d 14 (2008) In the Interest of T.O.J., a child. No. A08A1738. Court of Appeals of Georgia. December 18, 2008. Josh W. Thacker, Griffin, for appellant. Jewel C. Scott, District Attorney, R. Christopher Montgomery, Jr., Assistant District Attorney, for appellee. BERNES, Judge. The juvenile court adjudicated T.O.J. delinquent after finding that he was guilty of acts, which, if committed by an adult, would constitute the crimes of aggravated assault with a deadly weapon and possession of a weapon during the commission of a crime. 15 T.O.J. appeals from the denial of his motion for new trial, contending that the evidence was insufficient and that the juvenile court should have excluded two of the state's exhibits that were not produced to the defense prior to the hearing. We affirm. 1. T.O.J. maintains that there was insufficient evidence to support the juvenile court's finding of delinquency. We disagree. On appeal from a delinquency adjudication, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). (Citations and punctuation omitted.) In the Interest of J.D., 288 Ga.App. 839, 655 S.E.2d 702 (2007). So viewed, the evidence shows that on the late afternoon of October 26, 2007, seven teenagers were walking down the road together. A vehicle drove past them but then stopped, did a U-turn in the road, and drove back to where they were walking. The passenger behind the driver then leaned out of the vehicle and fired a gun seven or eight times in the direction of the teenagers. A bullet hit one of the teenagers in the left leg. An officer with the Clayton County Police Department responded to the scene. The seven teenagers told the officer that they could not identify the shooter. Two of the teenagers, however, later told a detective assigned to the case that T.O.J., who attended their same high school, was the shooter. Both of them identified T.O.J. in photographic lineups composed of high school yearbook photographs. A third teenager initially told the detective that he could not identify who had fired the shots, but later told him that the shooter was T.O.J. T.O.J. subsequently was charged in a juvenile petition with seven counts of aggravated assault with a deadly weapon and with possession of a firearm during the commission of a crime. A defendant commits an assault if he "[a]ttempts to commit a violent injury to the person of another" or "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20(a)(1, 2). If the assault is committed with a deadly weapon, the defendant is guilty of aggravated assault. OCGA § 16-5-21(a)(2). In turn, the offense of possession of a firearm during the commission of a crime is committed when a firearm is on or within an arm's reach of a person committing a crime against or involving the person of another. OCGA § 16-11-106(b)(1). At the delinquency hearing, the three teenagers who had previously told the detective that T.O.J. was the shooter described how the shooting occurred and testified that T.O.J. was the person who fired the shots from the car. The teenager who had been shot in the leg described the shooting incident but was unable to identify the shooter. The parties stipulated that the remaining three teenagers would likewise be unable to identify the shooter. After hearing all of the testimony, the juvenile court adjudicated T.O.J. delinquent. Viewed in the light most favorable to the verdict, the evidence presented at the delinquency hearing and set out above clearly was sufficient to allow a rational trier of fact to find appellant guilty beyond a reasonable doubt of seven counts of aggravated assault with a deadly weapon and one count of possession of a weapon during the commission of a crime. Jackson, 443 U.S. 307, 99 S.Ct. 2781. See OCGA §§ 16-5-21(a)(2); XX-XX-XXX(b)(1). See generally Williams v. State, 208 Ga.App. 12, 430 S.E.2d 157 (1993). Given that "[t]he testimony of a single witness is generally sufficient to establish a fact," OCGA § 24-4-8, the eyewitness testimony of three of the teenagers describing what happened and identifying appellant as the shooter was more than sufficient to sustain the convictions. While T.O.J. emphasizes that the three teenagers originally told the police that they could not identify the shooter, the trier of fact, not this Court, resolves conflicts in witness testimony. See Strong v. State, 265 Ga.App. 257, 258, 593 S.E.2d 719 (2004). Accordingly, the juvenile court's finding of delinquency was supported by the record. 16 2. T.O.J. argues that the juvenile court erred by allowing the state to introduce into evidence two photographic lineups composed of high school yearbook photographs. According to T.O.J., the juvenile court should have prohibited the state from introducing the photographic lineups into evidence because they were not served on the defense prior to the hearing. Again, we disagree. OCGA § 15-11-75 governs discovery in juvenile delinquency proceedings and provides that the child shall, upon written request to the person or entity prosecuting the case having actual custody, control, or possession of the material to be produced, have full access to the following for inspection, copying, or photographing: ... Photographs and any physical evidence which are intended to be introduced at the hearing. OCGA § 15-11-75(a)(7). The discovery request must be complied with promptly, and in most cases no later than 48 hours before the adjudicatory hearing. OCGA § 15-11-75(c). If a party violates these discovery requirements, the juvenile court is vested with discretion in fashioning a remedy, "and absent an abuse of that discretion, the [juvenile] court's action will stand." (Citation omitted.) Brown v. State, 278 Ga. 544, 546(2), 604 S.E.2d 503 (2004). Moreover, in addition to showing that the juvenile court abused its discretion in responding to a discovery violation, an appellant must prove prejudice in order to obtain a reversal. Id. at 545-546(2), 604 S.E.2d 503. Here, defense counsel objected when the state attempted to show the detective the two photographic lineups, contending that the lineups had not been provided to the defense during discovery. In response, the juvenile court recessed the proceedings and allowed the defense to review the photographic lineups and interview the detective about them. After affording defense counsel this opportunity, the juvenile court asked counsel, "Are you satisfied[] ... with the time that you had?" Defense counsel responded, "Yes, Your Honor, I'm satisfied." Defense counsel then went on to clarify that he was still objecting to the admission of the photographic lineups, but on the ground that the state had failed to lay an adequate foundation for their admittance. After several foundation-related questions were asked of the detective, the juvenile court allowed the state to introduce the lineups into evidence. We find no reversible error. As the record reflects, after T.O.J.'s counsel objected to the introduction of the photographic lineups on the ground that the state had failed to fulfill its discovery obligations, the juvenile court took curative action by allowing counsel an opportunity to review the lineups and interview the detective about them. Defense counsel's subsequent acquiescence to the juvenile court's curative action deprives T.O.J. of the right to complain further. See, e.g., Pollard v. State, 260 Ga.App. 540, 542(2), 580 S.E.2d 337 (2003). In any event, we cannot say that the juvenile court abused its discretion in fashioning a remedy in response to the discovery violation. See, e.g., Duvall v. State, 273 Ga.App. 143, 144(2), 614 S.E.2d 234 (2005) (defense counsel provided opportunity to review videotape that state failed to produce during discovery); Smith v. State, 257 Ga.App. 88, 90-91(3), 570 S.E.2d 400 (2002) (same), rev'd in part on other grounds, Patterson v. State, 278 Ga.App. 168, 173, 628 S.E.2d 618 (2006); Wilburn v. State, 199 Ga.App. 667, 669-670(3), 405 S.E.2d 889 (1991) (defense counsel provided opportunity to review medical records not produced by the state until the day of trial). Nor has T.O.J. shown how he was prejudiced by the trial court's decision not to order the extreme sanction of excluding the evidence. See Rollinson v. State, 276 Ga.App. 375, 378(1)(c), 623 S.E.2d 211 (2005) (noting that "[e]xcluding evidence is a harsh sanction") (citation and punctuation omitted); Wilburn, 199 Ga.App. at 669(3), 405 S.E.2d 889 ("Exclusionary rules are not favored in the law, as they detract from the search for truth."). Under these circumstances, T.O.J. has failed to establish a basis for reversal. Judgment affirmed. RUFFIN, P.J., and ANDREWS, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342417/	672 S.E.2d 17 (2009) In the Matter of J.T. (I), J.T. (II), A.J. No. 155PA08. Supreme Court of North Carolina. February 6, 2009. Elizabeth Kennedy-Gurnee, Staff Attorney, for petitioner-appellant Cumberland County Department of Social Services, and Beth A. Hall, Attorney Advocate, for appellant Guardian ad Litem. Richard Croutharmel, Raleigh, for respondent-appellee mother. Peter Wood, Raleigh, for respondent-appellee father J.T. NEWBY, Justice. This case presents the issue of whether, in an action to terminate parental rights, failure to name a juvenile as respondent or to serve a summons upon the juvenile in accordance with N.C.G.S. § 7B-1106(a) precludes the trial court from exercising subject matter jurisdiction over the action. Because we hold that these summons-related deficiencies implicate personal jurisdiction rather than subject matter jurisdiction, we reverse the decision of the Court of Appeals. On 6 October 2006, the Cumberland County Department of Social Services ("DSS") filed a petition to terminate respondents' parental rights with respect to the juveniles J.T. I, J.T. II, and A.J. That same day, a summons was issued naming, inter alia, M.J. (mother of all three juveniles) and J.T. (father of J.T. I and J.T. II) as respondents. 18 The trial court filed an order of termination on 24 August 2007, from which respondent mother M.J. and respondentfather J.T. appealed. Although the parties did not raise the question, the Court of Appeals determined ex mero motu that "DSS failed to cause to be issued a summons to the juveniles, as required by [N.C.G.S.] § 7B-1106(a)(5) (2005)." In re J.T. (I), ___ N.C.App. ___, ___, 657 S.E.2d 692, 693 (2008). Based on this finding, the Court of Appeals vacated the trial court's order without reaching the parties' assignments of error, stating that "`the failure to issue a summons to the juvenile deprives the trial court of subject matter jurisdiction.'" Id. at ___, 657 S.E.2d at 693 (quoting In re K.A.D., 187 N.C.App. 502, 504, 653 S.E.2d 427, 428-29 (2007)). This Court allowed discretionary review on the issue of whether the trial court lacked subject matter jurisdiction because of the failure to fully comply with N.C.G.S. § 7B-1106(a). Section 7B-1106 of the General Statutes, which governs the issuance of summons in termination of parental rights ("TPR") proceedings, provides in relevant part: "[U]pon the filing of the petition, the court shall cause a summons to be issued. The summons shall be directed to the following persons ... who shall be named as respondents: ... (5) The juvenile." N.C.G.S. § 7B-1106(a) (2007). The statute further requires that the summons be served on the juvenile through the juvenile's guardian ad litem ("GAL") "if one has been appointed." Id. In the instant case, the summons did not name the juveniles as respondents, nor was it served on the juveniles through a GAL. Nonetheless, a GAL and an attorney advocate were appointed to represent the juveniles, and both fully participated in the TPR proceedings without objecting to the court's exercise of jurisdiction in the action or over the juveniles. We must now determine whether their participation served to waive any jurisdictional objections that could have been raised based on the failure to fully comply with N.C.G.S. § 7B-1106(a). It is well settled that a challenge to a court's jurisdiction over the subject matter of an action cannot be waived at any point in the proceedings. See id. § 1A-1, Rule 12(h)(3) (2007). This is because "the proceedings of a court without jurisdiction of the subject matter are a nullity." Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964) (citing High v. Pearce, 220 N.C. 266, 17 S.E.2d 108 (1941)). "When the record clearly shows that subject matter jurisdiction is lacking, the [c]ourt will take notice and dismiss the action ex mero motu" in order to avoid exceeding its authority. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986) (citing In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962)); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80, 2 L.Ed. 60, 73-74 (1803) (in which the Supreme Court of the United States refused to issue mandamus to Secretary of State James Madison because such action would have been a constitutionally unauthorized exercise of jurisdiction). Objections to a court's exercise of personal (in personam) jurisdiction, on the other hand, must be raised by the parties themselves and can be waived in a number of ways. E.g., N.C.G.S. § 1A-1, Rule 12(h)(1) (2007) (stating that defense of lack of personal jurisdiction is waived if omitted from a Rule 12(g) motion or if it is neither raised by any other Rule 12 motion nor included in a responsive pleading). Broadly stated, any form of general appearance "waives all defects and irregularities in the process and gives the court jurisdiction of the answering party even though there may have been no service of summons." Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 359 (1956) (citations omitted). In any given case under the Juvenile Code, "[t]he issuance and service of process is the means by which the court obtains jurisdiction, and thus where no summons is issued, the court acquires jurisdiction over neither the parties nor the subject matter of the action." In re Poole, 151 N.C.App. 472, 475, 568 S.E.2d 200, 202 (2002) (Timmons-Goodson, J., dissenting) (citations omitted), rev'd per curiam for reasons stated in dissenting opinion, 357 N.C. 151, 579 S.E.2d 248 (2003). In the case sub judice, it is undisputed that a summons was issued upon the filing of the TPR petition by DSS. It is equally clear 19 that the General Assembly has granted subject matter jurisdiction to the trial court to hear and determine TPR petitions within a prescribed set of circumstances. N.C.G.S. § 7B-1101 (2007). Because the jurisdictional requirements of N.C.G.S. § 7B-1101 were satisfied in the instant case, the trial court's subject matter jurisdiction was properly invoked upon the issuance of a summons. It is inconsequential to the trial court's subject matter jurisdiction that no summons named any of the three juveniles as respondent and that no summons was ever served on the juveniles or their GAL. These errors are examples of insufficiency of process and insufficiency of service of process, respectively, both of which are defenses that implicate personal jurisdiction and thus can be waived by the parties. See id. § 1A-1, Rule 12(h)(1); Harmon, 245 N.C. at 86, 95 S.E.2d at 359. The full participation of the juveniles' GAL and the attorney advocate throughout the TPR proceedings, without objection to the trial court's exercise of personal jurisdiction over the juveniles, constituted a general appearance and served to waive any such objections that might have been made. See Harmon, 245 N.C. at 86, 95 S.E.2d at 359. The trial court thus acquired and properly exercised jurisdiction over the juveniles. Id. In summary, given that the requirements of N.C.G.S. § 7B-1101 were satisfied, the trial court's subject matter jurisdiction attached upon issuance of a summons. It is therefore unnecessary to make inquiry into the summons beyond a determination of whether a summons was issued. The deficiencies in the summons implicated the court's jurisdiction over the juveniles, not over the action as a whole, and any defenses arising from those deficiencies were waived by general appearance. The decision of the Court of Appeals is therefore reversed and this case is remanded to that court for consideration of the parties' assignments of error. REVERSED AND REMANDED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342412/	672 S.E.2d 333 (2008) STATE of West Virginia, Plaintiff Below, Appellee v. Melvin Randall MESSER, Defendant Below, Appellant. No. 33870. Supreme Court of Appeals of West Virginia. Submitted October 7, 2008. Decided December 10, 2008. 337 Robert B. Kuenzel, Avis, Witten & Wandling, L.C., Logan, Counsel for the Appellant. C. Michael Sparks, Mingo County Prosecuting Attorney's Office, Williamson, Counsel for the Appellee. PER CURIAM:[1] This is an appeal by Melvin Randall Messer (hereinafter "Appellant") from an order of the Circuit Court of Mingo County denying the Appellant a new trial subsequent to a jury verdict finding the Appellant guilty of two counts of first-degree murder with recommendations of mercy. The Appellant was sentenced to two consecutive life sentences and was assessed fines, costs, and restitution of $6,038.33. On appeal to this Court, the Appellant asserts that he was denied due process of law by the prosecutor's repeated misstatements of facts not in evidence during closing argument; by the inconsistent factual positions taken by the State in the Appellant's prosecution and the indictment of another individual involved in the underlying events; and by the State's failure to present exculpatory evidence to the grand jury. The Appellant further contends that the evidence does not support a conviction for first-degree murder; that the trial court erred in failing to suppress the Appellant's statement; and that the trial court erred in reading names of prospective witnesses to the jury. Upon thorough review of the arguments of counsel, the briefs of the parties, the record, and applicable precedent, this Court affirms the Appellant's conviction. I. Factual and Procedural History On January 7, 2006, the Appellant, Tommy Banig, and Walter Gauze were allegedly involved as perpetrators of a burglary. The Appellant had thereafter planned to testify against Gauze with regard to Gauze's participation in the burglary. In retaliation, Gauze had allegedly threatened to murder the Appellant and had allegedly shot at the Appellant's place of residence.[2] On Friday, March 31, 2006, the Appellant and Banig visited to the residence of Robert Brewer to discuss the potential sale of a .22 rifle and a black .45 hi-point handgun to Brewer. During the conversation regarding a potential sale, the evidence at trial revealed that either the Appellant or Banig had asked to retain possession of the gun through the weekend. On Monday, April 3, 2006, the Appellant was visiting the residence of Banig and his family in a trailer at Marrowbone, Mingo County, West Virginia. Gauze and Christopher "Buck" Chapman entered the Banig residence[3] and proceeded down a small, narrow hallway directly to the right of the entrance door. The Appellant claims that Banig had a gun at the residence and that Chapman had also brought a gun. The Appellant further claims that he was in the bathroom, unarmed, as a fight over the guns ensued.[4] The Appellant admits that he exited 338 the bathroom, participated in the altercation, and eventually gained possession of the pistol, shooting and killing Gauze and Chapman. He contends, however, that the shootings resulted from self-defense and the defense of others. Other evidence introduced by the State at trial, however, indicates that the decedents were unarmed when they entered the residence, that the only gun in the possession of Banig would not fire, and that the Appellant fired the .45 pistol immediately upon exiting the bathroom. The Appellant's contention that he engaged in a fight to gain control of the weapon was refuted by the medical examiner's testimony that there were no physical indications of a struggle. The Appellant's testimony was also refuted by the testimony of witnesses who indicated that the shots were fired more immediately than the Appellant's statement would suggest. A jury verdict finding the Appellant guilty of two counts of first-degree murder was rendered on January 11, 2007. Although the Appellant did not testify at the trial, his statement was presented to the jury. Banig did not testify. The Appellant's motion for a new trial was denied. II. Standard of Review In syllabus point four of Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996), this Court explained as follows: "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Similarly, in syllabus point three of State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000), this Court explained as follows: In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review. Utilizing those standards of review as guidance, this Court addresses the matters asserted by the Appellant. III. Discussion A. Alleged Misstatements of Prosecuting Attorney The Appellant contends that his due process rights were violated by the prosecuting attorney's repeated references, during closing argument, to the Appellant's possession of a gun as he exited the bathroom. The State's theory of the case was that the Appellant had possession of the .45 hi-point pistol in the bathroom and immediately started shooting as he exited the bathroom, shooting Chapman in the left back and Gauze twice in the right upper torso. Chapman was shot again in the right ear lobe, and both Chapman and Gauze were pronounced dead at the scene. The medical examiner found no evidence of defense or confrontational wounds on the bodies of either Chapman or Gauze, and the State presented evidence indicating that neither decedent was armed at the time of the shootings. With regard to the .22 rifle, Banig admits that he had possession of it during the altercation and that it jammed. He claims to have hit Chapman and Gauze with the gun, but further alleges that it would not shoot.[5] The Appellant contends that the prosecuting attorney misstated facts by making certain comments during closing argument. For instance, the prosecutor explained to the jury that "[t]his was an ambush, folks. Messer comes out, simply starts shooting." The prosecutor also stated that the Appellant "said he went to the bathroom. Well, he said he didn't use the bathroom and he took a 45 339 high caliber black high point to...."[6] "Now unless there was a wildcat back there, I typically don't take a high point black 45 back to the bathroom to do my business." The Appellant contends that because his statement, indicating that he did not have a gun in his possession in the bathroom, was uncontroverted, the prosecutor should not have been permitted to make such comments to the jury during closing argument. In response to the Appellant's claim that the prosecutor misstated evidence, the State maintains that the prosecutor was simply drawing all permissible inferences from the evidence. Indeed, the Appellant's statement was uncontroverted only to the extent that there was no direct testimony indicating that he had a pistol in his possession while in the bathroom. However, extensive testimony was presented indicating that shots[7] were fired within seconds of Chapman and Gauze entering the trailer; that they did not have weapons upon entering the trailer; that Banig had possession of a rifle that would not fire; and that there was no evidence of a physical altercation such as that described by the Appellant.[8] Syllabus point seven of State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988), provides that "[a] prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw." This Court also explained in State v. Asbury, 187 W.Va. 87, 415 S.E.2d 891 (1992), that "[a] prosecutor is allowed to argue all reasonable inferences from the facts." 187 W.Va. at 92, 415 S.E.2d at 896. In State v. Graham, 208 W.Va. 463, 541 S.E.2d 341 (2000), this Court addressed the principles utilized to evaluate prosecutorial comments and explained as follows: In reviewing allegedly improper comments made by a prosecutor during closing argument, we are mindful that "[c]ounsel necessarily have great latitude in the argument of a case," State v. Clifford, 58 W.Va. 681, 687, 52 S.E. 864, 866 (1906) (citation omitted), and that "[u]ndue restriction should not be placed on a prosecuting attorney in his argument to the jury." State v. Davis, 139 W.Va. 645, 653, 81 S.E.2d 95, 101 (1954), overruled, in part, on other grounds, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955). Accordingly, "[t]he 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). 208 W.Va. at 468, 541 S.E.2d at 346; see also State ex rel. Edgell v. Painter, 206 W.Va. 168, 522 S.E.2d 636 (1999) (holding that prosecutor is allowed to argue all reasonable inferences from facts presented at trial); State v. Smith, 190 W.Va. 374, 438 S.E.2d 554 (1993) (holding that prosecutor may argue all reasonable inferences from evidence in record). In State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995), this Court reiterated the wide latitude to which prosecutorial arguments are entitled, explaining as follows: "Clearly, a prosecuting attorney should refrain from referring to questionable evidence that may poison the jury's mind against the defendant. However, there is equally clear authority that a prosecuting attorney's suggestion of a plausible inference to be drawn from the evidence is proper." 193 W.Va. at 405, 456 S.E.2d at 486. In the case sub judice, the prosecutor's remarks to the jury were indicative of 340 the theory of the case espoused by the State and supported by the circumstantial, if not direct, evidence presented at trial. The prosecutor's statements to the jury constituted a reasonable interpretation of the facts.[9] The testimony supported the prosecutor's inferences based upon the timing of the shots fired, the fact that the decedents were unarmed upon entering the trailer, and the absence of any confrontational wounds on the decedents' bodies. Accordingly, we find no abuse of discretion by the trial court in refusing to grant a new trial on the basis of the prosecutor's remarks to which the Appellant objected.[10] B. Inconsistent Factual Positions Taken in Banig's Indictment The Appellant contends that his due process rights were also violated subsequent to the Appellant's trial. In the separate indictment of Banig upon gun charges not specifically related to the night of the decedents' deaths, the prosecutor informed the grand jury that Banig had exercised control of the pistol when the Appellant and Banig presented the weapons to Brewer for potential sale. The Appellant's trial concluded on January 11, 2007. The Banig grand jury heard evidence on January 18, 2007. During that proceeding, Sheriff Lonnie Hannah, also the investigator in the Appellant's case, testified that the Appellant and Banig had visited the home of Robert Brewer to discuss a sale of guns. Sheriff Hannah explained to the Banig grand jury that "they sold him a 22 rifle and they had a 45 pistol, automatic pistol, also, that they did not sell him that was later on, we found, was used in the commission of a crime." Sheriff Hannah indicated that Banig had possession of the firearms. The Appellant contends that statements to the Banig grand jury are inconsistent with the testimony at the Appellant's trial with regard to the possession of the murder weapon. In response to the Appellant's concerns, the trial court reviewed the Banig grand jury transcript and made that transcript a part of the record in this case for appellate review. The Appellant contends that the State violated a fundamental principle prohibiting the utilization of inconsistent theories in separate trials of defendants. Indeed, as the Appellant emphasizes, Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997), vacated on other grounds, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), does stand for the proposition that a "prosecutor's pursuit of fundamentally inconsistent theories" in separate trials of defendants charged with the same murder violated due process. 120 F.3d at 1056. We find the Appellant's argument to be without merit, however, because the critical issue in the Thompson analysis is the fact that the defendants were charged with the same murder. In the present case, Banig was charged with a separate violation, a firearm possession in violation of West Virginia Code § 61-7-7(b)(1) (2004) (Repl.Vol.2005).[11] The two crimes by two different defendants were committed on separate dates, with different elements, and entirely distinct theories of prosecution. The presentation to which the Appellant objects in Banig's indictment process did not even occur until after the Appellant's trial. No unfair advantage was gained by the State against the Appellant, and we can discern no prejudice suffered by the Appellant due to the manner in 341 which Banig's indictment was later presented. C. Failure to Present Exculpatory Evidence to Grand Jury The Appellant claims a due process violation in the failure of the prosecution to present exculpatory evidence to the grand jury. The Appellant contends that the State failed to read his statement to the grand jury. The prosecuting attorney informed the grand jury only of Banig's statement that the Appellant "possibly came out of the bathroom with the gun...." The Appellant maintains that the grand jury may have indicted him for a lesser charge if it had been informed of the entire contents of his own personal statement. In response to the Appellant's assertions, the State maintains that it has no duty to present exculpatory evidence to a grand jury. The traditional function of a grand jury is to determine whether there is sufficient probable cause to require a defendant to stand trial, rather than to engage in an analysis of the truth of the charges. In State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989), this Court recognized that "[c]riminal defendants have frequently sought to challenge the validity of grand jury indictments on the ground that they are not supported by adequate or competent evidence." 181 W.Va. at 665, 383 S.E.2d at 847. "This contention, however, often runs counter to the function of the grand jury, which is not to determine the truth of the charges against the defendant, but to determine whether there is sufficient probable cause to require the defendant to stand trial." Id., 383 S.E.2d at 847. The United States Supreme Court declined to impose a duty upon prosecutors to disclose exculpatory evidence in United States v. Williams, 504 U.S. 36, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), finding that a rule requiring prosecutors to present exculpatory evidence in addition to incriminating evidence "would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body." 504 U.S. at 51, 112 S.Ct. 1735. Likewise, in State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), this Court, citing Williams, found no merit to a defendant's contention that the grand jury was not provided with exculpatory evidence. 197 W.Va. at 596 n. 5, 476 S.E.2d at 543 n. 5. The State explains that although the Appellant's statement was not read verbatim to the grand jury, it cannot be accused of concealing all favorable evidence during the grand jury proceedings since it did present some exculpatory evidence. The grand jury was informed that the Appellant had provided a statement in which he asserted that he took the gun from Chapman and shot the decedents. Moreover, the grand jury was informed that Banig had originally stated that Chapman had brought the gun to the trailer but that Banig had later altered his statement to assert that the Appellant had the weapon prior to the arrival of Chapman and Gauze. The grand jury was further informed that Banig's wife, Melissa, thought she may have seen a knife in Gauze's hand at some point. Further, the grand jury was informed that Jamie Domosley initially stated that Banig had a gun in the hallway. Thus, while the prosecution may have exercised some degree of discretion in determining the extent of exculpatory evidence to be presented to the grand jury, the failure to read the Appellant's statement in its entirety does not suggest an intention to conceal exculpatory evidence, gain any unfair advantage, or selectively present evidence to mislead the grand jury. Based upon the foregoing, this Court finds no merit to the Appellant's contention regarding any inadequacy in the presentation of evidence to the grand jury. D. Sufficiency of Evidence Supporting First Degree Murder The Appellant also asserts that the evidence at trial did not support a conviction for first-degree murder. He maintains that he was simply the victim of an unprovoked attack and that he fired the weapon only in self-defense. This Court has consistently recognized the extensive obligation of a criminal defendant in challenging the evidence supporting a conviction. Syllabus point three of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), addresses the 342 burden faced by a defendant in such a challenge, as follows. A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled. Syllabus point one of Guthrie explains the function of an appellate court in evaluating the evidence, as follows: The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry 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 proved beyond a reasonable doubt. The evaluation of a sufficiency of evidence argument on appeal was also discussed in syllabus point two of State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), as follows: When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor's coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution's favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt. The undisputed evidence presented in the case sub judice indicated that the Appellant shot and killed Chapman and Gauze. In testimony describing the circumstances under which such murders occurred, the State presented evidence that the Appellant and Banig advised Brewer, during negotiations regarding a sale of guns prior to the murders, that they intended to keep the pistol for the weekend and that they may need to use it. The State also presented evidence that Chapman and Gauze were unarmed as they entered the trailer, that there were no confrontational wounds on the bodies, and that the shots were fired almost immediately after Chapman and Gauze entered the hallway of the trailer. Testimony established that Chapman and Gauze had arrived at the trailer with beer, intending to party and drink. The State also presented evidence indicating that Chapman was shot execution-style in the head after sustaining a fatal shot in the back. In light of the evidence in the record regarding the facts of this case, we conclude that abundant evidence existed to sustain the Appellant's conviction for first-degree murder under the sufficiency of the evidence test enunciated in syllabus point one of Guthrie. This Court has reviewed all the evidence in a light most favorable to the State, as directed by this Court in Guthrie. The record contains sufficient evidence, both direct and circumstantial, to convince a reasonable person of the Appellant's guilt beyond a reasonable doubt. We consequently find no merit to the Appellant's contention of insufficiency of evidence. E. Suppression of the Appellant's Statement The Appellant also contends that his statement should have been suppressed based upon what he characterizes as insufficient explanation, prior to the waiver of his 343 Miranda[12] rights, regarding the magnitude of the crime with which he was subsequently charged. The Appellant maintains that although he waived his Miranda rights and executed the Miranda rights form, he was not clearly advised of the reason for his questioning. He also asserts that the Miranda rights form was devoid of any explanation of the possible criminal charges and penalties. The Appellant directs this Court's attention to language included in a footnote in State v. Goff 169 W.Va. 778, 289 S.E.2d 473 (1982), a case in which this Court addressed the assertion that an intellectually challenged defendant was not properly informed of the charges against him. In Goff, the defendant's prior activity as a police informant created the concern that he may have misinterpreted his role, believing that he was being asked to assist in solving a crime, rather than realizing that he was actually a suspect under investigation. The Court ultimately ruled that the confession was involuntary, under the totality of the circumstances. In discussing the quantum of information to be provided to a defendant prior to a waiver of Miranda rights, the Goff Court opined as follows in footnote eight: "We believe that some information should be given to the defendant as to the nature of the charge in order that he can determine whether to intelligently and voluntarily exercise or waive his Miranda rights." 169 W.Va. at 785, 289 S.E.2d at 477. The State responds to the Appellant's assertions by emphasizing that the record clearly demonstrates that the Appellant was provided with his Miranda rights and that he waived those rights by reviewing, initialing, and signing an "Interview and Miranda Rights Form." The Appellant does not assert that he suffered from any disability which would have affected his understanding of those rights.[13] Further, the present case is distinguishable from Goff in several respects. The Appellant herein does not assert any intellectual incapacity. Trooper First Class Scarbro testified that the Appellant was clearly advised of his Miranda rights before he was questioned. Because he was not yet under arrest, he could obviously not be advised that any particular charges were pending against him. Moreover, Trooper Scarbro testified that the Appellant was free to leave at any time. With regard to the Appellant's assertion that he was not fully aware of the reason for his questioning, this case is analogous to State v. Moore, 193 W.Va. 642, 457 S.E.2d 801 (1995). In that case, Moore also asserted that his confession was not voluntary because he had not been informed of the charges against him. This Court found such argument disingenuous, explaining that "[a]lthough it appears that the police did not expressly tell Mr. Moore the nature of the charges against him, under the circumstances there could be no confusion about what Mr. Moore was being charged with." 193 W.Va. at 648, 457 S.E.2d at 807. The same could be deduced in the present case. The Appellant was involved in an incident in which two people were fatally wounded. The gravity of the situation would not have been difficult to comprehend. When the Appellant presented this issue of suppression of the statement to the trial court, it denied the motion to suppress, reasoning[14] that the Appellant's statement 344 should not be suppressed based upon the interviewing officer's failure to inform the Appellant that he could become a suspect in the murder investigation or that he would be subject to a certain penalty if convicted. This Court has consistently held that considerable deference is to be provided to the trial court's decision regarding the voluntariness of a confession. In syllabus point four of Moore, this Court explained that "`[a] trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.' Syl. Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978)." Further, the totality of the circumstances must be assessed in a determination of the voluntariness of a confession. State v. Farley, 192 W.Va. 247, 253, 452 S.E.2d 50, 57 (1994). Based upon our review of this issue, we find no merit to the Appellant's claims that his statement should have been suppressed based upon the lack of information regarding the magnitude of the crime ultimately charged. We determine that the evidence in the record amply supports the trial court's ruling on this issue. F. Recitation of List of Prospective Witnesses The Appellant claims that his due process rights were violated by the trial court's decision to permit defense counsel and the prosecutor to recite a list of prospective witnesses to the jury during voir dire. The Appellant asserts that trial strategy later changed and some of those witnesses were not called, possibly causing the jury to wonder why those witnesses had not appeared as witnesses at trial. The Appellant suggests that a more reasonable alternative would be to present the potential witness names to the court collectively, rather than permitting each attorney to read a list of names. In that manner, the jury would be prohibited from knowing which side planned to call a specific witness. The Appellant did not, however, object to the recitation of the list of names in the court below. Prior to the reading of the names, the trial court explained to the jury that it was "now going to call upon the lawyers to identify their potential witnesses by name and by address." The trial court also informed the jury that "the Defendant has no obligation to put on any witnesses and all these witnesses are potential witnesses only but we want to make sure no one is related...." The Appellant did not object[15] to the trial court's chosen method of reading the list to the jury, and this issue does not warrant application of the plain error rule. See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) (reserving plain error analysis for errors of great magnitude). The Appellant has not identified any specific prejudice which resulted from the manner in which the list of potential witnesses was read. We find that the Appellant's conjecture concerning *345 the jury's speculation does not form the basis for a meritorious claim on appeal, and we find no reversible error by the trial court in the manner in which the potential witness list was presented to the jury. IV. Conclusion Based on the foregoing, we find no reversible error in the case before us. Accordingly, we affirm the jury conviction and sentence the Appellant received in the Circuit Court of Mingo County. Affirmed. Justice ALBRIGHT not participating. Senior Status Justice McHUGH sitting by temporary assignment. NOTES [1] Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright. [2] In his Motion for Judgment of Acquittal, the Appellant indicates that it was "undisputed" that a van owned by Gauze's friend, Christopher "Buck" Chapman, drove by the residence in which the Appellant was residing, and gunshots were allegedly fired at the residence. [3] Sonya Belt, Jamie Domosley, and Josh Mollette accompanied Gauze and Chapman to the Banig residence. [4] The Appellant's Statement indicates as follows: Anyways, I was at Tommy's house tonight. I saw them pull up. I went back to use the bathroom. Tommy was in the bedroom, in bed with his wife. I told Tommy that Walter and "Buck" was here. Then I went and used the bathroom. When I came out of the bathroom, I heard them fighting in the hallway, so I didn't get to use the bathroom. I came out. They were fighting over the guns. "Buck" had a pistol in his hand. Tommy had a .22 rifle and they were trying to take it away. While they were fighting the pistol was going off. I jumped in and started fighting with them. I ended up with the pistol. They were still trying to get the rifle. After I got the pistol, I shot him in the chest and then I shot him, "Buck," again. Then I shot Walter. [5] The .22 rifle disappeared from the crime scene, and Banig speculated in his statement that it might have been thrown into a well by someone who came into the trailer after the participants had departed. [6] The prosecutor was interrupted by an objection by defense counsel during that particular remark. [7] Phillip Kent Cochran, a firearm examiner from the West Virginia State Police Forensic Laboratory, confirmed that the decedents were killed by bullets fired from the black .45 hi-point handgun. [8] Dr. Iouri George Boiko, M.D., Ph.D., of the West Virginia Office of Chief Medical Examiner, performed the post-mortem examinations of Chapman and Gauze, finding no evidence of confrontational wounds on either body. [9] This Court concluded as follows with regard to the prosecutor's remarks in Sugg: "We find the inference that the cash in the defendant's possession was the result of a robbery was plausible from the evidence and the argument, therefore, was proper." 193 W.Va. at 405, 456 S.E.2d at 486. [10] As this Court emphasized in Sugg, even a prosecutorial argument unsupported by evidence would not necessarily result in a reversal. 193 W.Va. at 405, 456 S.E.2d at 486. "A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Id. at 393, 456 S.E.2d at 474, syl. pt. 5; see also State v. Petrice, 183 W.Va. 695, 398 S.E.2d 521 (1990) (holding that prosecutor's inappropriate comments were not sufficient alone to justify verdict reversal). [11] The Appellant indicates that Banig admitted that he was a felon in possession of a firearm when he took the .45 high point pistol to the residence of Robert Brewer in an attempt to sell guns. Banig apparently ultimately pleaded guilty to that charge. [12] See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [13] In State v. Adkins, 170 W.Va. 46, 289 S.E.2d 720 (1982), this Court addressed the issue of a defendant's inability to understand the Miranda warnings due to intellectual limitations and explained that "[i]t is the general rule that the intelligence of a person making a confession is but one factor to be considered in determining whether a waiver of rights was voluntary." 170 W.Va. at 53, 289 S.E.2d at 727. The Adkins Court examined a situation under which a person lacks the capacity to understand the meaning of his statement. This Court concluded that "where the defendant's lower than normal intelligence is not shown clearly to be such as would impair his capacity to understand the meaning and effect of his confession, said lower than normal intelligence is but one factor to be considered by the trial judge in weighing the totality of the circumstances surrounding the challenged confession." Id. at 54, 289 S.E.2d at 727. [14] During discussion of the motion to suppress, the necessity of the Miranda warnings was questioned since the Appellant was arguably not in custody at the time the statement was provided. It was observed, however, that the warnings had been provided by the officer out of abundance of caution. [15] This Court has consistently held that "silence may operate as a waiver of objections to error and irregularities at the trial which, if seasonably made and presented, might have been regarded as prejudicial." State v. Grimmer, 162 W.Va. 588, 595, 251 S.E.2d 780, 785 (1979), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). This raise or waive rule is designed "to prevent a party from obtaining an unfair advantage by failing to give the trial court an opportunity to rule on the objection and thereby correct potential error." Wimer v. Hinkle, 180 W.Va. 660, 663, 379 S.E.2d 383, 386 (1989). In LaRock, this Court explained as follows: Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights.... When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court's attention affords an opportunity to correct the problem before irreparable harm occurs. There is also an equally salutary justification for the raise or waive rule: It prevents a party from making a tactical decision to refrain from objecting and, subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result). In the end, the contemporaneous objection requirement serves an important purpose in promoting the balanced and orderly functioning of our adversarial system of justice. 196 W.Va. at 316, 470 S.E.2d at 635.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342431/	672 S.E.2d 196 (2008) Andrew YOUNG, Administrator of the Estate of David G. Young, and Andrew Young, individually, Plaintiffs Below, Appellants, v. Pamela Sue MCINTYRE, formerly known as Pamela Sue Young and the Huntington National Bank, Defendants Below, Appellees. No. 33872. Supreme Court of Appeals of West Virginia. Submitted: September 24, 2008. Decided: December 10, 2008. 198 Floyd M. Sayre, III, Bowles Rice McDavid Graff & Love LLP, Martinsburg, for Appellants. Pamela Sue McIntyre, Pro Se, Appellee. BENJAMIN, Justice.[1] This appeal is brought by Appellants Andrew Young, Administrator of the Estate of David G. Young, and Andrew Young, individually from an order of the Circuit Court of Berkeley County entered on April 16, 2007, granting Appellee Pamela Sue McIntyre's motion for summary judgment and denying plaintiffs' cross motion for summary judgment. Appellants filed the instant civil action on December 12, 2006, requesting a judgment quieting title to a one-half undivided interest in the subject property. On appeal, Appellants allege that the circuit court erred in holding that the plain language of the final order in the divorce of David Young, Appellants' father, from Pamela Sue Young did not constitute an agreement involving an 199 exchange of each party's rights and obligations with respect to their former marital domicile. Appellants also allege that the circuit court erred in holding that the property settlement agreement adopted by the final order in the divorce did not sever the joint tenancy clause of their deed of conveyance. This Court has before it the petition for appeal, all matters of record and briefs and arguments of counsel. For the reasons expressed below, the April 16, 2007, order of the Circuit Court of Berkeley County is reversed and remanded for entry of an order consistent with this opinion. I. FACTUAL AND PROCEDURAL HISTORY Appellant Andrew Young is the Administrator of the Estate of David Young, [hereinafter referred to as "decedent"] who died intestate in Berkeley County, West Virginia on or about July 31, 2006.[2] Pamela McIntyre and the decedent were married in Washington County, Maryland, on June 30, 1982. By deed dated June 13, 1983, David Young was conveyed the property which is the subject of this dispute, located in the Arden District of Berkeley County, West Virginia.[3] By deed dated October 2, 1987, the couple, as husband and wife, was conveyed the subject property as joint tenant with rights of survivorship by deed of record in the Berkeley County clerk's office in Deed Book 423, at page 625. On or about January 27, 2005, decedent filed a Verified Complaint in the Family Court of Berkeley County, West Virginia, for divorce, Case No. 05-D-86. The parties executed a property settlement agreement dated October 24, 2005, wherein the parties agreed, in pertinent part that: "The parties will continue to own the former marital domicile and shall list the property for sale in the spring of 2006. That Husband will continue to exclusively live in the house and pay the mortgage debts on the same. The parties agree to split the cost of repairs to sell the house up to $5,000 each. When the house sells, the parties will split the net proceeds equally." The Final Divorce Order was entered on November 8, 2005, and the Property Settlement Agreement was incorporated therein and was enforceable by either party against the other through contempt powers. Decedent had exclusive possession of the subject property subsequent to the entry of the Final Divorce Order. Although the parties agreed to sell the property, it was not sold prior to the decedent's death. Appellants filed the instant civil action on December 12, 2006, requesting a judgment quieting title to a one-half undivided interest in the subject property. Ms. McIntyre filed a motion for summary judgment on March 6, 2007. On March 23, 2007, the Appellants filed a cross motion for summary judgment. The circuit court entered an order on April 16, 2007, granting Ms. McIntyre's motion for summary judgment and denying plaintiff's cross motion for summary judgment.[4] II. STANDARD OF REVIEW "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." 200 Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995). "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Furthermore, "questions of law and statutory interpretation are subject to de novo review." Syl. Pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995). Mindful of these standards, we proceed to consider the arguments of the parties. III. DISCUSSION Appellants ask us to consider two issues in this matter. The first being whether the circuit court erred in holding that the plain language of the final order in the divorce did not constitute an agreement involving an exchange of each parties' rights and obligations with respect to the property or equitable conversion. The second being whether the circuit court erred in holding that the property settlement agreement did not sever the joint tenancy clause of the deed of conveyance. We address each of these issues in turn. A. Equitable Conversion The parties entered into a property settlement agreement dated October 24, 2005, wherein they agreed to repair the real estate, list it, sell it, and split the proceeds when sold. The property settlement agreement was adopted by the lower court in the final Divorce Order dated November 8, 2005. Under the express terms of the final order, the decedent was given exclusive possession of the property. Appellants allege that by entering into the property settlement agreement, the parties made an equitable conversion of the real estate, entitling each to a one-half interest in the economic value of the property. Appellants rely upon our prior decision in Timberlake v. Heflin, 180 W.Va. 644, 379 S.E.2d 149 (1989), wherein we held that when a contract to sell is made, the document of equitable conversion comes into play. Id. at 650, 379 S.E.2d at 155. In Timberlake, a former husband sued his former wife seeking specific performance of a parol contract for transfer of her interest in their home owned as joint tenants with a right of survivorship. The former husband died after the petition for appeal was accepted. Therein, we evaluated whether a valid contract for a sale of the property existed, and whether the statute of frauds was satisfied. We found that because the divorce complaint stated that the former wife agreed to convey her interest to her husband, and the husband had contracted, as a joint tenant with a right of survivorship, to buy his fellow joint tenant's interest, the death of the purchaser did not operate to permit the survivorship incident in the deed to transfer his interest, if the purchaser's heirs or administrator were willing to complete the purchase contract. In arriving at this decision, this Court looked to the doctrine of equitable conversion enunciated in Maudru v. Humphreys, 83 W.Va. 307, 310-11, 98 S.E. 259, 260 (1919), wherein we held that: "After the execution of a valid contract of sale and before legal title passes by deed, the vendor is regarded in equity as holding the legal title in trust for the vendee, and the latter as holding the purchase money in trust for the vendor. The purchaser thereby acquires a vendable interest, an equitable estate which, at his death, descends to his heirs in the same manner as a legal estate." Because the former wife acknowledged the contract in her divorce complaint, this Court found that the former husband, as vendee, acquired equitable title to the wife's one-half interest in the property as outlined in Maudru. Thus, his heirs were entitled to specific performance in such a situation. Id. In the case sub judice, the facts before us do not present an equitable conversion as contemplated in Timberlake. Herein, Appellants have not presented an actual contract for the sale of the subject property. Rather, they present a contract wherein the parties agree to sell the subject property at a specified future date and split the proceeds equally. Because there has been no agreement by 201 the joint tenants to convey their interest to a specific identified purchaser, no conveyance of legal title has yet taken place. Thus, no purchaser has acquired a vendable interest making the doctrine of equitable conversion applicable. Although we find that the doctrine of equitable conversion, as applied in our jurisprudence, is inapplicable to the facts presented herein, we still find that the property settlement agreement did create a valid agreement to sell the property. Clearly it was the intent of the parties to liquidate the marital asset and disburse the funds equally. The property settlement agreement was incorporated into the divorce order, and the parties had a right to enforce their rights under the agreement. We have previously recognized that when an agreement by divorcing spouses concerning property rights is approved by the court and incorporated into a divorce decree, it becomes merged in the decree and the rights of the parties thereafter rest upon the decree. See Farley v. Farley, 149 W.Va. 352, 141 S.E.2d 63 (1965); Corbin v. Corbin, 157 W.Va. 967, 206 S.E.2d 898 (1974). We think that in such circumstances, normal rules of contract construction should apply in interpreting the terms of the agreement. Courts should give effect to the intentions of the parties and the court, as determined from the language of the unambiguous instrument. "In construing a deed, will, or other written instrument, it is the duty of the court to construe it as a whole, taking and considering all the parts together, and giving effect to the intention of the parties wherever that is reasonably clear and free from doubt, unless to do so will violate some principle of law inconsistent therewith." Syl. Pt. 3, Farley v. Farley, 215 W.Va. 465, 600 S.E.2d 177 (2004); See also Dompke v. Dompke, 186 Ill.App.3d 930, 134 Ill.Dec. 715, 542 N.E.2d 1222 (1989). Having decided that a valid agreement to sell the property exists, we must next consider whether the agreement severs the joint tenancy clause in the deed. B. Severance of the Joint Tenancy In Syllabus Point 1, Herring v. Carroll, 171 W.Va. 516, 300 S.E.2d 629 (1983), we held that: "In order to create a common law joint tenancy in real property the parties must receive an undivided interest under four conditions: 1) each party's undivided interest must vest at the same time; 2) each party must receive an undivided interest in the whole estate; 3) each party's possession must be coequal so that his property interest is the same as to the legal estate and duration; and 4) each party must receive his interest in the same title document. These four conditions for the creation of a common law joint tenancy are commonly abbreviated as the four unities of time, interest, possession and title. The main attribute of a common law joint tenancy was the right to survivorship." Id. We have recognized that the common law incident of survivorship in a joint tenancy has been altered by W. Va.Code § 36-1-19.[5] We have rather uniformly held that this statute abrogates the right of survivorship in a common law joint tenancy unless under W. Va.Code § 36-1-20, "it manifestly appears from the tenor of the instrument that it was intended that the part of the one dying should then belong to the others." Id. at Syl. Pt. 3.[6] 202 There is a strong statutory presumption in favor of construing joint tenancies as tenancies in common without the right of survivorship. However, this presumption may be overcome by a clear and convincing showing that the intention of the parties to create a joint tenancy with rights of survivorship. Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992). We have also specifically held that West Virginia Code § 36-1-19 and § 36-1-20 do not abolish the common law requirement of the four unities in a joint tenancy. Syl. Pt. 5, Herring v. Carroll, 171 W.Va. 516, 300 S.E.2d 629. In Herring, we recognized that: "Any act of a joint tenant which destroys one or more of its necessarily co-existent unities operates as a severance of the joint tenancy and extinguishes the right of survivorship. The act of one joint tenant in severing his interest in the property by alienation severs the joint tenancy to that extent, so that if there were but two tenants, the joint tenancy is terminated." Id. at 520, 633. This Court has not yet decided the effect of a divorce and property settlement agreement upon the questions of the survival of the joint tenancy. Appellants contend that several courts have found that a divorce decree itself destroys the unity of possession and, thus, causes a severance. Carson v. Ellis, 186 Kan. 112, 348 P.2d 807 (1960); In re Estate of Estelle, 122 Ariz. 109, 593 P.2d 663, 665 (1979); Estate of Seibert, 226 Cal.App.3d 338, 276 Cal.Rptr. 508, 510 (1990); Gaskie v. Hugins, 640 P.2d 248, 249 (Colo.App.Ct.1981). However, we decline to hold that a divorce decree, alone, causes a severance of a joint tenancy. The right of survivorship of a joint tenant does not arise out of the marriage relationship. Absent either an express intent to sever or conduct inconsistent with the continuation of the joint tenancy, the right of survivorship will continue after a dissolution of the marriage of joint tenants. In reviewing the property settlement agreement herein, it is illogical to believe it was the intent of the decedent to maintain the joint tenancy of the property and allow an unintended benefit to his ex-wife. The Appellants assert, and we agree, that the happenstance of the death of Mr. Young should not operate as a windfall to the Ms. McIntyre and leave the decedent's sole heir without any interest in the real estate. We observe that other jurisdictions have followed this reasoning in severing the tenancy. Wardlow v. Pozzi, 170 Cal.App.2d 208, 338 P.2d 564, 566 (1959)("hard to see how two persons in domestic difficulties, and desirous of settling their domestic problems" would desire continuation of joint tenancy.); Rich v. Silver, 226 Cal.App.2d 60, 37 Cal.Rptr. 749, 751 (1964); Guilbeault v. St. Amand, No. 93569, 1993 WL 392943 at 5 (Conn.Super. Sept.28, 1993)(concluding that severance found when "the conduct of the parties voluntarily evidenced their intention to sever the joint tenancy with the right of survivorship and hold their property as tenants in common"); In re Marriage of Dowty, 146 Ill. App.3d 675, 100 Ill.Dec. 187, 496 N.E.2d 1252, 1254 (1986)(finding that trial testimony at divorce evidenced intent to sever because parties desired to sell and divide proceeds "as soon as reasonably possible."); Brodzinsky v. Pulek, 75 N.J.Super. 40, 182 A.2d 149, 156 (1962)(finding severance where joint tenants "by their conduct and course of dealing, mutually treated the subject mortgages as held by them as tenants in common."); Estate of Blair, 199 Cal.App.3d 161, 244 Cal. Rptr. 627, 632 n. 3 (1988)(court finding it unlikely that either spouse would desire "to make the macabre gamble" of being the survivor if one party died pending dissolution.) We believe that in circumstances of divorce, such as the present, joint tenants can agree to hold as tenants in common and thus sever the joint tenancy. Such an agreement can be express or implied from conduct of the parties inconsistent with holding in joint tenancy. Again, we observe similar *203 decisions from other jurisdictions. See Dompke v. Dompke, 542 N.E.2d; Thomas v. Johnson, 12 Ill.App.3d 302, 297 N.E.2d 712 (1973); Mamalis v. Bornovas, 112 N.H. 423, 297 A.2d 660 (1972); Wardlow v. Pozzi, 170 Cal.App.2d 208, 338 P.2d 564. See generally 48a C.J.S. Joint Tenancy § 18; Tiffany on Real Property [3d Ed.] Vol. 2, § 425. "A course of dealing by joint tenants in reference to the property jointly owned may by implication establish a severance, termination, or abandonment of the joint tenancy." What Acts By One or More of Joint Tenants Will Sever or Terminate the Tenancy, 64 A.L.R.2d 918, pp. 949-950 (1959). Acknowledging this standard, the question here becomes whether the conduct of the parties and the course of dealing between them is "sufficient to indicate that all parties mutually treated their interests as belonging to them in common." 48 C.J.S. Joint Tenancy, § 4, p. 928. In the instant case, the terms of this agreement were sufficient to cause destruction of the four unities by implication. The language in the property settlement agreement and the action of the parties immediately thereafter evinces an agreement to dissolve the joint tenancy as they agreed to repair the real estate, list it, sell it, and split the proceeds when sold. The decedent was given exclusive possession of the property pending the sale. When we look at the context in which the agreement was made, the circumstances at the time, and the bargaining by equals with respect to the dissolution of their martial status, it is readily apparent herein that the couple did not make the agreement with the view that their rights of survivorship would be maintained subsequent to the divorce but prior to the property being sold. The conduct of the parties plainly evidenced their intention to sever the joint tenancy with the right of survivorship and hold their property as tenants in common. The lower court merged and incorporated the property settlement agreement into its final divorce order. Therefore, each party has been entitled to its enforcement since the entry of the divorce decree, and the lower court was required to enforce performance of those obligations under the final divorce order so as to fully execute its terms. To find that the joint tenancy remained unsevered would clearly be in direct contradiction to the intent of the property settlement agreement. Given our strong statutory presumption in favor of construing joint tenancies as tenancies in common without the right of survivorship, we believe that when the agreement of the parties evidences an intent to sever to joint tenancy, termination of the joint tenancy is the logical decision. We wish to make it clear that by holding that joint tenants in circumstances of divorce can agree, expressly or impliedly, to hold as tenants in common and thus sever the joint tenancy, this does not abolish the requirement of the traditional four common law unities for a joint tenancy. We continue to acknowledge, as we did in Herring v. Carroll, 171 W.Va. 516, 300 S.E.2d 629, that our statutory law, W. Va.Code § 36-1-19 and § 36-1-20, does not abolish the unities. The usefulness of the unities is better determined on a case-by-case basis. Subsequent to this decision, either tenant still retains the power to sever a joint tenancy by destroying one or more of the unities. IV. CONCLUSION For the foregoing reasons, we conclude that the Circuit Court of Berkeley County erred in finding that the joint tenancy at issue in this case was not severed. Accordingly, we reverse the decision of the circuit court, and remand the matter for entry of an order consistent with this decision. Reversed and Remanded. Justice ALBRIGHT not participating. Senior Status Justice McHUGH sitting by temporary assignment. NOTES [1] Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright. [2] Andrew Young qualified as the administrator of the estate on or about August 7, 2006. [3] The subject property is more particularly described as: Lot No. 18 of Meadows of Arden, containing 4.612 acres, as shown on a plat and survey thereof dated August 11, 1978, made by William J. Teach, LLS, recorded in the Office of the Clerk of the County Commission of Berkeley County, West Virginia, in Plat Cabinet No. 1, Slide 27, to which plat reference is hereby made for a metes and bounds description of the real estate... By Clarence E. Martin, III, Trustee, said deed recorded in the office of the Clerk of the County Commission of Berkeley County, West Virginia, in Deed Book 369, at page 553. [4] Subsequent to this Court's acceptance of the instant appeal, Ms. McIntyre's counsel, Michael Scales, withdrew as the attorney of record. Ms. McIntyre has remained unrepresented following her attorney's withdrawal, and has not filed a responsive brief in this matter. [5] West Virginia Code § 36-1-19 (1923) provides: "When any joint tenant or tenant by the entireties of an interest in real or personal property, whether such interest be a present interest, or by way of reversion or remainder or other future interest, shall die, his share shall descend or be disposed of as if he had been a tenant in common." [6] A statutory right of joint tenancy was created in West Virginia Code § 36-1-20 (1923), which, in pertinent part, provides: (a) the preceding Section [§ 36-1-19] shall not apply to any estate which joint tenants have as executors or trustees, nor to an estate conveyed or devised to a person in their own right, when it manifestly appears from the tenor of the instrument that it was intended that the part of the one dying should then belong to the other. Neither shall it effect the mode of proceeding on any joint judgment or decree in favor of, or on the contract with two or more, if one of them dies. In 1981, this section was amended to add the following subdivision (b): "When the instrument of conveyance or ownership in any estate, whether real estate or tangible or intangible personal property, links multiple owners together with the disjunctive `or', such ownership shall be held as joint tenants with the right of survivorship, unless expressly stated otherwise."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342432/	672 S.E.2d 303 (2008) STATE of West Virginia ex rel. Jane L. CLINE, Insurance Commissioner of the State of West Virginia, Petitioner v. The Honorable Andrew N. FRYE, Jr., Judge of the Circuit Court of Grant County, Gerry A. Davis, Sr., Danny Keplinger, Timothy Rohrbaugh, Monumental Life Insurance Company, and William Blankenbeckler, Respondents. No. 33875. Supreme Court of Appeals of West Virginia. Submitted September 3, 2008. Decided November 6, 2008. 306 Andrew R. Pauley, Jeffrey C. Black, Gregory A. Elam, Offices of the Insurance Commissioner of West Virginia, Charleston, Counsel for the Petitioner. Janet D. Preston, John W. Cooper, Cooper & Preston, PLLC, Parsons. James Paul Geary, Geary & Geary, LC, Petersburg, Counsel for the Respondents, Gerry A. Davis, Sr., Danny Keplinger, and Timothy Rohrbaugh. Ancil G. Ramey, Hannah B. Curry, Steptoe & Johnson, PLLC, Charleston. Lucien G. Lewin, Eric J. Hulett, Steptoe & Johnson, PLLC, Martinsburg, Counsel for the Respondent, Monumental Life Insurance Company. McHUGH, Senior Status Justice:[1] Jane L. Cline, the Insurance Commissioner of the State of West Virginia ("Insurance Commissioner"), seeks a writ of prohibition[2] in connection with two orders[3] entered by the Circuit Court of Grant County directing her to produce documents relating to the investigation of a former insurance agent. Arguing that the materials are both confidential and privileged based on statutory law,[4] the Petitioner asserts that the trial court erred in ordering that the subject materials be disclosed for use in a private civil action. Critically, all of the parties to the civil action the former agent who was the subject of the Insurance Commissioner's investigation, Mr. William Blankenbeckler; his former employer, Monumental Life Insurance Company ("Monumental Life"); and the plaintiffs who brought suit against Mr. Blankenbeckler and Monumental Life, have waived any privileges they might have with respect to the documents at issue. Upon our careful review of the grounds upon which the Petitioner seeks relief, we find that the Insurance Commissioner has failed to establish that the trial court committed error in directing the disclosure of the subject documents. Accordingly, the Petitioner's request for a writ of prohibition is hereby denied. I. Factual and Procedural Background The plaintiffs in the underlying civil action, a consolidation of three cases, allege that Mr. Blankenbeckler, while employed as a captive insurance agent for Monumental Life, committed various acts of misconduct including fraud, misrepresentation, churning, and embezzlement of insurance premiums.[5] Sometime in 2004, the plaintiffs notified the Insurance Commissioner about Mr. Blankenbeckler's alleged misconduct. As a result, the Insurance Commissioner instituted an investigation into the insurance-related acts of Mr. Blankenbeckler. That investigation culminated with an agreed order, signed by the Insurance Commissioner and Mr. Blankenbeckler on January 7, 2005, the terms of which required Mr. Blankenbeckler to cease transacting insurance business in this state. During the discovery phase of the civil action below, both Monumental Life and the plaintiffs sought to obtain the investigatory 307 file that the Insurance Commission had compiled on Mr. Blankenbeckler.[6] Although the Insurance Commissioner was not a party to the suit below, the trial court entered an order on August 22, 2007, directing the Insurance Commissioner to provide all of the documents in her files pertaining to Mr. Blankenbeckler other than those items she was "specifically prohibited by statute from producing." Upon her receipt of the August 22, 2007, order, the Insurance Commissioner filed a motion to intervene and a motion for reconsideration of the trial court's ruling. Following the granting of her motion to intervene, the Insurance Commissioner voiced her objections to producing the investigatory materials concerning Mr. Blankenbeckler at a hearing before the trial court on October 10, 2007. During this hearing, the Insurance Commissioner asserted that production of the requested documents would violate the terms of West Virginia Code § 33-2-19 (Supp.2007). Because this statutory provision specifies that investigatory materials compiled by her office are confidential in nature, the Insurance Commissioner argued that the documents at issue are privileged and not subject to disclosure. In its order of December 3, 2007, the trial court rejected the arguments raised by the Insurance Commissioner and directed for a second time that the investigatory materials at issue must be produced. In support of its ruling, the circuit court found significant the parties' joint request for these documents combined with the absence of any objection on the part of Mr. Blankenbeckler to the production of the materials. The trial court found the Insurance Commissioner's concerns that disclosure will harm the insurance industry unpersuasive, given the involvement of Monumental Life in the document request at issue in this case. On January 30, 2008, the Insurance Commissioner filed a petition with this Court through which she seeks to prohibit the enforcement of the trial court's orders requiring disclosure of the investigatory materials compiled on Mr. Blankenbeckler. By ordered entered on February 28, 2008, this Court issued a rule to show cause. II. Standard of Review The standard by which we determine whether a writ of prohibition should issue based on the ground that the circuit court acted in excess of its jurisdiction is well established. As we explained in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996): In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight. With this standard in mind, we proceed to determine whether the trial court exceeded its jurisdiction in directing the Insurance Commissioner to disclose the investigatory materials in her possession that pertain to Mr. Blankenbeckler. III. Discussion The Insurance Commissioner looks to the statutory language of West Virginia Code 308 § 33-2-19 to argue that the investigatory materials compiled in connection with the investigation of Mr. Blankenbeckler are confidential and not subject to disclosure. The statutory language upon which she relies provides as follows: (a) Documents, materials or other information in the possession or control of the commissioner that are obtained in an investigation of any suspected violation of any provision of this chapter or chapter twenty-three [§§ 23-1-1-et seq.] of this code are confidential by law and privileged, are not subject to the provisions of chapter twenty-nine-b [§§ 29B-1-1 et seq.] of this code and are not open to public inspection. The commissioner may use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner may use the documents, materials or other information if they are required for evidence in criminal proceedings or for other action by the state or federal government and in such context may be discoverable only as ordered by a court of competent jurisdiction exercising its discretion. (b) Neither the commissioner nor any person who receives documents, materials or other information while acting under the authority of the commissioner may be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section except as ordered by a court of competent jurisdiction. W.Va.Code § 33-2-19 (emphasis supplied). In support of her position that she is statutorily proscribed from producing the subject documents, the Insurance Commissioner looks initially to the language in the first sentence of West Virginia Code § 33-2-19(a) which provides that investigatory materials compiled by that office "are confidential by law and privileged" and "are not open to public inspection." Id. Secondarily, she cites language from the third sentence of subsection (a) that authorizes her to disclose documents "if they are required for evidence in criminal proceedings or for other action by the state or federal government." W.Va. Code § 33-2-19(a). Finally, she argues that the "as ordered by a court of competent jurisdiction" language that appears at the end of the third sentence of subsection (a) is limited to either criminal proceedings or other actions by the state and/or federal government based on the precedent language which states "in such context." Because there is no express statutory language that permits her to disclose materials pursuant to the directive of a state court in a civil action, the Insurance Commissioner contends she is barred from complying with the trial court's orders. In response to the statutory interpretation the Insurance Commissioner advocates, the plaintiffs below and Monumental Life argue that the privilege extended to the Insurance Commissioner's investigatory files is not absolute and was clearly not aimed at barring documents from release for civil action purposes. Recognizing the validity of the Insurance Commissioner's position that she is required to uphold the confidentiality protections imposed by West Virginia Code § 33-2-19, the plaintiffs and Monumental Life observe that the intended effect of the statute was to create a privilege that operates to protect against disclosure as to third-parties. When, as in this case, the parties seeking the information through a court order are the very entities who disclosed the information to the Insurance Commissioner or are parties about whom the information was disclosed, and each of those parties has waived any privilege with regard to the release of the information, the protections the statute seeks to impose are either unnecessary or inapplicable. As further support for their position, the Respondents note that the statutory language relied upon from West Virginia Code § 33-2-19 as the source of the confidentiality and privilege protections was not in existence at the time the Insurance Commissioner compiled her file on Mr. Blankenbeckler.[7] 309 We first examine the nature of the privilege that attaches by virtue of the provisions of West Virginia Code § 33-2-19 to documents the Insurance Commissioner compiles when conducting an investigation into alleged insurance law violations. While the Insurance Commissioner seeks to characterize the privilege as absolute, it is clear from the terms of the statute that investigatory documents are subject to production in certain enumerated instances. The legislatively-anticipated exceptions to the general rule against production exist when the documents are used by the Insurance Commissioner in connection with legal or regulatory actions she institutes; in criminal proceedings filed in state and federal court; and for other action taken by the state and/or federal government. See W.Va.Code § 33-2-19(a). Additionally, we observe that the provisions of subsection (b) that permit the Commissioner and her agents to testify when "ordered by a court of competent jurisdiction" in a "private civil action" certainly imply the permissible disclosure of confidential information through means of such testimony. W.Va.Code § 33-2-19(b). Rather than being absolute in nature, the privilege created by West Virginia § 33-2-19 is, at best, a conditional privilege and one that only applies in specified instances. In all circumstances, the statutory privilege applies to shield investigatory materials from FOIA production and from disclosure to the general public. See W.Va.Code § 33-2-19(a). According to the Insurance Commissioner, disclosure under the statute is expressly limited to the three exceptions identified in subsection (a): when required for evidence in criminal proceedings; when required for "other action" by the state or federal government; or when required in connection with regulatory or legal actions instituted by the Insurance Commissioner. See id. Upon examination, however, the position the Insurance Commissioner advocates is simply untenable. While the statute does identify several instances when disclosure is clearly contemplated, those enumerated instances are not specified as the only occasions where the Insurance Commission may be required to produce investigatory materials. And, as Respondents observe, the absence of statutory language barring disclosure from use in civil actions is significant given that the Legislature has opted to categorically ban disclosure in other insurance statutes such as the Insurance Fraud Prevention Act. See W.Va. Code § 33-41-7 (2004) (providing that documents Insurance Commissioner obtains when investigating insurance fraud "shall not be open to public inspection, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action") (emphasis supplied). Because we are required to read related statutes in pari materia, we must acknowledge that when the Legislature adopted the statutory language under discussion in 2007, it chose not to include language comparable to the provisions in the Insurance Fraud Prevention Act which expressly proscribe any disclosure of documents for use in a private civil action. See W.Va.Code § 33-41-7; Syl. Pt. 5, in part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975) (holding that "[s]tatutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent"). Our examination of West Virginia Code § 33-2-19 convinces us that the statute, while identifying three instances when disclosure is permitted in subsection (a), does not attempt to limit disclosure to only those three instances. This is evident from subsection (b) which certainly contemplates and impliedly authorizes disclosure of the investigatory materials when the Insurance Commissioner or her agents are required by a court of competent jurisdiction to testify in a civil action. To suggest otherwise is to ignore the obvious fact that the Insurance Commissioner or her agents will undoubtedly 310 refer to such materials in preparation for or during the course of their testimony. More important, however, is the fact that the issue of disclosure is expressly allowed to be determined by a "court of competent jurisdiction" in both subsection (a) which directly addresses document use or production and in (b) through the indirect use or production that results during the giving of testimony regarding such materials. Contrary to the Insurance Commissioner's position that the investigatory materials are barred in all instances for use in a civil action, the statute suggests that the issue of disclosure may be determined by a circuit court. We reach this conclusion based on the fact that the statute does not contain an across-the-board prohibition on the use of the investigatory materials in a civil action combined with the implication that disclosure is necessarily permitted when the Insurance Commissioner or her agents are directed to testify by a court of competent jurisdiction pursuant to the provisions of subsection (b). See W.Va.Code § 33-2-19. Having carefully examined the arguments on this issue in conjunction with the relevant statutory provisions, we are compelled to conclude that the provisions of West Virginia Code § 33-2-19 do not expressly prohibit the Insurance Commissioner from disclosing investigatory materials when a court of competent jurisdiction orders that such materials be produced for use in a private civil action. Cf. W.Va.Code § 33-41-7. At the same time, however, we fully recognize that the Legislature has valid concerns for maintaining confidentiality with regard to investigatory materials gathered by the Insurance Commissioner. Consequently, our recognition that the investigatory materials compiled by the Insurance Commissioner may be subject to discovery in a civil action hinges upon an initial examination by the trial court regarding the concerns of confidentiality and privilege that were raised below. As is often the case where materials subject to protections based on confidentiality or privilege are requested, the trial court will need to engage in a balancing test to determine whether the information at issue should be subject to disclosure. See Child Protection Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986) (recognizing need for trial courts to employ balancing test regarding disclosure of personal information under FOIA). In ruling on the issue of whether the Insurance Commissioner's investigatory file should be subject to disclosure in a private civil action, a trial court should examine whether the materials can be obtained from another entity; whether there is a specific need for the materials; whether the individuals named in the materials or affected by the potential disclosure have waived any privilege they may have to such materials; and any other indicia relevant to the issue of privilege or confidentiality. In this case, it was represented to the Court that the information sought through the discovery order was not available from any other entity as Mr. Blankenbeckler purportedly does not have any files on his former insurance clients. Additionally, there is no question that the documents at issue are critical to the pending civil action based on the denial of Mr. Blankenbeckler regarding misrepresentations that he previously conceded in the insurance investigation. All of the plaintiffs, Mr. Blankenbeckler, and Monumental Life have waived any privilege concerning the information contained in the Insurance Commissioner's file on Mr. Blankenbeckler. As a consequence, this case presented a unique set of circumstances where no one but the Insurance Commissioner has any objections to the disclosure of the subject information.[8] As Monumental Life opined, when all the persons affected by the documents at issue are in agreement regarding the need for disclosure, the purposes underlying the confidentiality provisions of West Virginia Code § 33-2-19 are not thwarted. Critically, the confidentiality provisions created by West Virginia Code § 33-2-19 are aimed at protecting the parties identified in the documents and not the Insurance Commissioner.[9]311 In this case, we can find no error with regard to the trial court's determination that the investigatory materials in the Insurance Commissioner's possession are subject to discovery in connection with the civil action pending before it.[10] Because the Insurance Commissioner has failed to show that the trial court exceeded its jurisdiction in directing the disclosure of the materials relating to Mr. Blankenbeckler, the grounds for issuing a writ of prohibition have not been met. See State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12, syl. pt. 4. Accordingly, we refuse to issue the requested writ of prohibition. Writ denied. Justice ALBRIGHT not participating. Senior Status Justice McHUGH sitting by temporary assignment. NOTES [1] Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright. [2] See W.Va.Code § 53-1-1 (1923) (Repl.Vol. 2000). [3] There were two orders, the first of which was entered on August 22, 2007, and the second one was entered on December 3, 2007. [4] See W.Va.Code § 33-2-19 (Supp.2007). [5] Mr. Blankenbeckler personally collected the premiums from the plaintiffs on a monthly basis. [6] Although this document request was made by plaintiffs' counsel at a hearing before the circuit court on July 23, 2007, it appears that Monumental Life joined in the motion or request at some point. [7] That language was adopted as part of the statutory amendments to West Virginia Code § 33-2-19 in 2007 that went into effect on June 7, 2007. See 2007 W.Va. Acts ch. 35. Because the statute, as amended in 2007, was clearly in effect at the time the documents were first ordered to be produced on August 27, 2007, we proceed to apply the provisions of the amended statute to this case. [8] To be clear, we are not suggesting that the Insurance Commissioner was wrong to raise objections to disclosing the investigatory documents under its control. [9] The Insurance Commissioner posited that other insurance companies would be less willing to tender documents in connection with ongoing investigations if they are concerned that the information will not be subject to the confidentiality provisions of West Virginia Code § 33-2-19. Like the trial court, we find this argument somewhat specious given the agreement of all the parties to disclosure in this case. Furthermore, there is nothing in the ruling of this opinion that suggests that the confidentiality protections established by the statute have been vitiated. Where valid reasons exist for nondisclosure, a circuit court is clearly charged with authority to prohibit the production of materials in the investigatory file of the Insurance Commissioner. In this case, there simply was no legitimate basis for withholding the production of the requested documents. [10] In an arguably analogous decision we were asked to determine whether the generalized confidentiality provisions of the Freedom of Information Act barred the disclosure of law enforcement investigatory materials from discovery requests in civil proceedings. See Maclay v. Jones, 208 W.Va. 569, 542 S.E.2d 83 (2000). In deciding that the materials were subject to discovery, we held that statutory provisions aimed at extending confidentiality as to the public generally "were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings." Id. at 570, 542 S.E.2d at 84, syl. pt. 2, in part.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342438/	672 S.E.2d 737 (2009) FIVE C'S, INC., Plaintiff, v. COUNTY OF PASQUOTANK, Defendant. No. COA08-771. Court of Appeals of North Carolina. February 17, 2009. 738 Hornthal, Riley, Ellis & Maland, L.L.P., by Benjamin M. Gallop and John D. Leidy, Elizabeth City, for plaintiff-appellant. The Twiford Law Firm, P.C., by John S. Morrison and T. Taylor Manning, Moyock, for defendant-appellee. HUNTER, JR., Robert N., Judge. Five C's, Inc. ("plaintiff") appeals from judgment entered, which granted the County of Pasquotank's ("the County") motion for summary judgment. We reverse. I. Background On 17 August 1992, the County adopted an Ordinance To Provide for Allowable Manufactured/Mobile Home Units ("the Ordinance") "under the authority of Chapter 153A-121 of the General Statutes of North Carolina." The Ordinance's purpose was "to regulate allowable manufactured homes or mobile homes within the jurisdiction of [the County] in order to promote the public health, safety and general welfare of the citizens of [the County]." Article II of the Ordinance contained the following definitions: 1. Mobile Home: Mobile home shall mean a transportable structure designed to be used as a year-round residential dwelling and built prior to the enactment of the National Manufactured Housing Construction and Safety Standards Act of 1974 which became effective June 15, 1976. 2. Manufactured Home: Manufactured home shall mean a single family dwelling fabricated in an off site manufacturing facility for installing or assembling on the building site bearing a 739 seal certifying that it was built in compliance with the National Manufactured Housing and Construction and Safety Standards Act of 1974 which became effective June 15, 1976. Article III of the ordinance stated "[m]anufactured homes must have an attached HUD label to be brought into [the County] for the purpose of permanent set-up." On 21 May 2001, the County's Board of Commissioners considered "proposed changes to the Ordinance to Limit Manufactured Homes that Are Brought into [the County] to Not More than Ten Years Old." The meeting's minutes state: County Attorney Brenda White provided her opinion regarding the proposed amendments. She explained that a county is allowed under its police power to protect the health, safety, welfare, and environment within the county. She summarized case law that placed within the authority of the governing board to regulate those things under its police power. She said the county's proposal to limit the age of mobile homes that are brought into the county was based upon the evaluation of the county's tax base and the services that the county is required to provide for all residents of the county in contrast to the revenues generated to pay for those services. She noted that according to manufactured home values provided by the Tax Administrator there is a substantial decrease in the value of a manufactured home during the first 10 years, and that a 10-year old manufactured home has about the same value as a used vehicle. Ms. White stated that she believes it is within the county's authority to enact the proposed regulations. The proposed change to the Ordinance passed by a four-to-two vote. Article III was amended to state "[m]anufactured homes must have an attached HUD label and shall not be more than ten (10) years old on the date of application for a building permit for the purpose of permanent set-up." Plaintiff acquires mobile and manufactured homes for sale, transportation, and set up within the County. Plaintiff filed a complaint on 7 September 2001 seeking a declaratory judgment that the amendment exceeded the County's statutory authority and violated plaintiff's substantive due process, procedural due process, and equal protection rights. Plaintiff also sought both a preliminary and permanent injunction restraining the County from enforcing the Ordinance as amended. Plaintiff alleged: (1) it had an inventory of ten manufactured homes more than ten years old on 21 May 2001; (2) it entered into a contract sometime between 21 May 2001 and 5 June 2001 to sell and set up a twenty-three-year-old manufactured home; (3) it applied for a building permit for the permanent setup of this manufactured home on 5 June 2001; (4) the County "denied [its] application for a building permit because the manufactured home was more than ten years in age on the date of [its] application and because the manufactured home was not listed in the Pasquotank County Tax Assessor's office as of the date the ordinance was ratified[;]" (4) it applied for a building permit for the permanent setup of a mobile home on 17 August 2001; and (5) the County denied its application for the same reasons the County denied its 5 June 2001 application. On 26 November 2001, the County answered plaintiff's complaint and moved to dismiss. Plaintiff filed a motion for summary judgment on 5 January 2006 and the case was scheduled for a non-jury trial. Plaintiff and the County subsequently advised the trial court that the case "was in the proper posture for summary judgment[.]" The trial court entered summary judgment in favor of the County on 10 April 2008. Plaintiff appeals. II. Issues Plaintiff argues the trial court erred when it entered summary judgment in favor of the County because the County: (1) exceeded its statutory authority; (2) violated plaintiff's due process rights; and (3) violated plaintiff's equal protection rights. III. Standard of Review This Court reviews a trial court's order for summary judgment de novo to determine "whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law." Summey v. Barker, 357 N.C. 492, 496, 740 586 S.E.2d 247, 249 (2003); Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007). IV. Statutory Authority Plaintiff argues the County "exceeded its statutory authority by restricting the location of manufactured homes within [the County] based solely on age." We agree. "Counties are creatures of the General Assembly and have no inherent legislative powers. They are instrumentalities of state government and possess only those powers the General Assembly has conferred upon them." Craig v. County of Chatham, 356 N.C. 40, 44, 565 S.E.2d 172, 175 (2002) (citations omitted). In 1874, our Supreme Court adopted what has become known as Dillon's Rule: a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation. Smith v. Newbern, 70 N.C. 14, 18 (1874), modified, 73 N.C. 303 (1875) (citations omitted). Recently, however, Dillon's Rule has come under attack. In 1973, the General Assembly enacted Section 153A-4 of the North Carolina General Statutes. N.C. Gen.Stat. § 153A-4 (2001) states: It is the policy of the General Assembly that the counties of this State should have adequate authority to exercise the powers, rights, duties, functions, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of local acts shall be broadly construed and grants of power shall be construed to include any powers that are reasonably expedient to the exercise of the power. In Homebuilders Assn. of Charlotte v. City of Charlotte, our Supreme Court analyzed the interplay of Dillon's Rule with N.C. Gen. Stat. § 160A-4 (1987), a statute similar to that of N.C. Gen.Stat. § 153A-4. 336 N.C. 37, 43-44, 442 S.E.2d 45, 49-50 (1994); see also N.C. Gen.Stat. § 160A-4 (2001). Our Supreme Court held "that the proper rule of construction is the one set forth in [N.C. Gen.Stat. § 160A-4]." Homebuilders Assn. of Charlotte, 336 N.C. at 44, 442 S.E.2d at 50. This Court has since interpreted Homebuilders Assn. of Charlotte to state that Dillon's Rule was overruled by N.C. Gen.Stat. § 160A-4. See BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C.App. 75, 81, 606 S.E.2d 721, 725 ("In its reading of N.C. Gen.Stat. § 160A-4, the [Supreme] Court found that the narrow rule of construction established over some 100 years prior by common law, known as `Dillon's Rule,' had been replaced by the legislature's 1971 enactment." citing Homebuilders Assn. of Charlotte, 336 N.C. at 43-44, 442 S.E.2d at 49-50 and Smith, 70 N.C. at 14, disc. review denied, 615 S.E.2d 660 (2005)). This Court has also stated since Homebuilders Assn. of Charlotte that: [N.C. Gen.Stat. §] 153A-4 does state that any legislative act affecting counties should be "broadly construed and grants of power shall be construed to include any powers that are reasonably expedient to the exercise of the power." And the clear legislative policy and purpose in the broad construction is so "that the counties of this State ... [can] have adequate authority to exercise the powers, rights, duties, functions, privileges, and immunities conferred upon them by law." But, in conjunction with our general rules of statutory construction, only if there is an ambiguity in a statute found in chapter 153A should section 153A-4 be part of the courts' interpretative process. If, however, the statute is clear on its face, the plain language of the statute controls and section 153A-4 remains idle. Durham Land Owners Ass'n v. County of Durham, 177 N.C.App. 629, 633-34, 630 S.E.2d 200, 203 (citations omitted), disc. review denied, 360 N.C. 532, 633 S.E.2d 678 (2006). Plaintiff argues the County's general power to enact ordinances under Section 153A-121 of the North Carolina General Statutes was preempted with regard to the zoning of manufactured housing when the General Assembly adopted N.C. Gen.Stat. §§ 153A-341.1 and 160A-383.1 in 1987. See N.C. Gen.Stat. § 153A-121(a) (2001) ("A 741 county may by ordinance define, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the county; and may define and abate nuisances."). To determine whether the General Assembly intended to preempt its broad grant of authority under N.C. Gen. Stat. § 153A-121, with its subsequent adoption of N.C. Gen.Stat. §§ 153A-341.1 and 160A-383.1, we must decide if it has shown an intent to limit a county's power with regard to zoning regulations for manufactured homes. "In so doing, the context of the Act and the spirit and reason of the law must be considered, for it is the intention of the Legislature, as expressed in the statute, which controls." Mullen v. Louisburg, 225 N.C. 53, 58, 33 S.E.2d 484, 487 (1945); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) ("The foremost task in statutory interpretation is `"to determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context requires otherwise."'" (citations omitted)). N.C. Gen.Stat. § 153A-341.1 (2001) states "[t]he provisions of [N.C. Gen.Stat. §] 160A-383.1 shall apply to counties." N.C. Gen. Stat. § 160A-383.1 (2001) states: (a) The General Assembly finds and declares that manufactured housing offers affordable housing opportunities for low and moderate income residents of this State who could not otherwise afford to own their own home. The General Assembly further finds that some local governments have adopted zoning regulations which severely restrict the placement of manufactured homes. It is the intent of the General Assembly in enacting this section that cities reexamine their land use practices to assure compliance with applicable statutes and case law, and consider allocating more residential land area for manufactured homes based upon local housing needs. .... (d) A city may adopt and enforce appearance and dimensional criteria for manufactured homes. Such criteria shall be designed to protect property values, to preserve the character and integrity of the community or individual neighborhoods within the community, and to promote the health, safety and welfare of area residents. The criteria shall be adopted by ordinance. The General Assembly made "the context of [N.C. Gen.Stat. §§ 153A-341.1 and 160A-383.1] and the spirit and reason of the law" clear in subsection (a) of N.C. Gen.Stat. § 160A-383.1. Mullen, 225 N.C. at 58, 33 S.E.2d at 487. The plain language of N.C. Gen.Stat. §§ 153A-341.1 and 160A-383.1 therefore controls and N.C. Gen.Stat. § 153A-4 remains idle. Durham Land Owners Ass'n, 177 N.C.App. at 634, 630 S.E.2d at 203. N.C. Gen.Stat. § 160A-383.1, as made applicable to counties by N.C. Gen.Stat. § 153A-341.1, limits a county's power to enact zoning regulations for manufactured homes. If this Court interprets N.C. Gen. Stat. §§ 153A-341.1 and 160A-383.1 any other way, N.C. Gen.Stat. § 160A-383.1(d) becomes meaningless. A county may not therefore use its broad police powers as a guise to enact zoning regulations for manufactured homes inconsistent with N.C. Gen.Stat. § 160A-383.1. In White v. Union County, this Court, interpreting N.C. Gen.Stat. §§ 153A-340, -341.1, and 160A-383.1, held that the trial court erred when it allowed Union County's motion to dismiss for failure to state a claim pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6). 93 N.C.App. 148, 152, 377 S.E.2d 93, 95 (1989). In White, the plaintiffs contended that Union County's land use ordinance requiring a resident prove his/her mobile home to be worth at least $5,000.00 in order for that resident to reside in such a mobile home within Union County, is not a legal regulation of land use, and is therefore an ultra vires ordinance, in violation of N.C.G.S. § 153A-340. Id. at 150, 377 S.E.2d at 94. This Court stated: The nub of [the] plaintiffs' argument [was] that the legislature ha[d] granted the county authority to draft ordinances limiting structures, and mobile homes specifically, only in qualitative terms and not by way of an arbitrary money value. Given the requirements of Dillon's Rule, [the] *742 plaintiffs ... stated a direct attack on the ordinance so long as they [could] show that the attack [was] timely under N.C.G.S. § 153A-348. Id. at 152, 377 S.E.2d at 95. Here, the Ordinance, as amended, states "[m]anufactured homes must have an attached HUD label and shall not be more than ten (10) years old on the date of application for a building permit for the purpose of permanent set-up." At the time of the adoption of the amendment to the Ordinance, the rational basis proffered by the proponents of the Ordinance was to increase the tax base. At oral argument, counsel for the County contended that increasing the tax base by requiring manufactured homes to have a certain value was a legitimate governmental interest. This contention was advanced by the record evidence of Chairman Wood who stated: [T]here is a significant tax problem in this situation because rental mobile homes are taxed as personal property and the values decrease substantially over a ten year period. [Chairman Wood] said the county provides services for these property owners, but has no vehicle for collecting sufficient revenues to pay for these services. The intent of the Ordinance is to increase the tax base by elimination of housing which rapidly depreciates in value. This wealth based criterion is neither an appearance nor dimensional criteria. The nexus between the County's intention and its statutory authority "to protect property values, to preserve the character and integrity of the community or individual neighborhoods within the community, and to promote the health, safety and welfare of area residents[ ]" is too tenuous. N.C. Gen.Stat. § 160A-383.1(d). The County cannot accomplish by indirect legislation what it cannot achieve by direct legislation. The County therefore exceeded the power the General Assembly has conferred upon it with regard to zoning regulations for manufactured homes. The trial court erred when it denied plaintiff's motion for summary judgment and entered summary judgment in favor of the County. In light of our holding, it is unnecessary to review plaintiff's remaining assignments of error. V. Conclusion The Ordinance, as amended, does not employ appearance and dimensional criteria as intended by the General Assembly in N.C. Gen.Stat. §§ 153A-341.1 and 160A-383.1. The County exceeded its statutory authority. The trial court erred when it denied plaintiff's motion for summary judgment and entered summary judgment in favor of the County. The trial court's judgment is reversed. Reversed. Judges McGEE and JACKSON concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342455/	381 S.C. 189 (2009) 672 S.E.2d 576 William D. CURTIS, Respondent, v. Brandon T. BLAKE, Petitioner. No. 26583. Supreme Court of South Carolina. Heard November 6, 2008. Filed January 20, 2009. 190 Thomas J. Keaveny, II, and Bob J. Conley, both of Simons & Keaveny, of Charleston, for Petitioner. C. Bradley Hutto, of Williams & Williams, of Orangeburg, and Mark Brandon Tinsley, of Gooding & Gooding, of Allendale, for Respondent. Justice WALLER: We granted a writ of certiorari to review an order of the Court of Appeals which dismissed the appeal of Petitioner Brandon Blake as untimely. We find Petitioner's appeal was timely filed and, accordingly, we reverse and remand. FACTS A jury awarded Respondent, William Curtis, a $450,000 verdict for injuries sustained in an auto accident with Petitioner, Blake. Immediately following the verdict, on October 31, 2005, Blake requested to make post-trial motions at a later date. The trial court ruled post-trial motions could be made in written form, stating, "We'll have ten days to file any post-trial motions. And y'all can just send those to me in Spartanburg, and I will rule on those without the necessity of actual oral argument." On November 10, 2005, the tenth day after the verdict, Blake served opposing counsel with a Rule 59(b) motion for new trial by placing it in the mail. The motion was filed by the Orangeburg Clerk of Court five days later, on November 15, 2005. Curtis responded, claiming the motion was untimely as it was not filed within the ten days allotted by the trial judge; the circuit court ruled the motion was timely but denied the motion for a new trial on the merits. Blake's appeal to the Court of Appeals was dismissed by Judge Cureton on the ground that the appeal was untimely. Judge Cureton ruled the motion had to be delivered to and received by the Clerk of Court no later than November 10, 2005 in order to comply with the trial court's instructions. As it did not, Judge Cureton found the late-filed motion did not stay the time for service of the notice of appeal, such that the 191 appeal was untimely.[1] On motion for reconsideration, a three-judge panel of the Court of Appeals affirmed. ISSUE Did the Court of Appeals err in dismissing the appeal as untimely where the motion for a new trial was served on opposing counsel on the tenth day after trial? DISCUSSION A "motion for a new trial shall be made promptly after the jury is discharged, or in the discretion of the court not later than 10 days thereafter." Rule 59(b), SCRCP. (Emphasis supplied). A timely Rule 59 motion stays the time for an appeal for all parties until receipt of written notice of entry of the order granting or denying such motion. Elam v. SCDOT, 361 S.C. 9, 602 S.E.2d 772 (2004). The question here is whether the post-trial motion was "made" at the time it was filed with the court, or when it was served on opposing counsel. We find the motion was "made" when it was placed in the mail for service on opposing counsel. The trial judge here exercised his discretion in allowing the parties ten days in which to make a post-trial motion. The court then ruled the motion, which was served on the tenth day, was timely made. We agree. Although Rule 59(b) does not define the term "made," other portions of Rule 59 utilize service as the effective date. For example, Rule 59(c) sets for the Time for Serving Affidavits, stating, "[w]hen a motion for new trial is based upon affidavits they shall be served with the motion." Similarly, Rule 59(d) permits a court on its own initiative to "grant a motion for a new trial, timely served . . ." Under Rule 59(e), "a motion to alter or amend the judgment shall be served not later than 10 days after receipt of written notice of the entry of the order."[2] *192 Furthermore, this Court has previously held Rule 59(b) requires service of post trial motions within ten days after judgment. See Diamond Jewelers v. Naegele Outdoor Advertising, 290 S.C. 260, 349 S.E.2d 888 (1985) (recognizing post-trial motions to amend, alter and for a new trial must be served not later than ten days after entry of judgment). Accordingly, we hold a motion for a new trial is timely so long as it is served within the time period allotted by the trial judge.[3] We find the trial court properly held Blake's motion for a new trial was timely. We reinstate the appeal and remand the matter to the Court of Appeals for consideration on the merits. REVERSED AND REMANDED. TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur. NOTES [1] Pursuant to Rule 59(f), the time for appeal is stayed by a timely Rule 59 motion. [2] In contrast, the current federal version of Rule 59(b) specifically requires a new trial be filed no later than 10 days after the entry of judgment, and Rule 59(c) and (e) also specifically require filing rather than service. Prior to the Federal Rule 59's amendment in 1995, it was the date of service of the motion rather than the date of filing which was significant. If service was timely, it was sufficient if the motion was filed within a reasonable time after service. See 11 Charles Alan Wright and Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure, § 2812 (1995). [3] It is, however, within the trial court's discretion whether to allow up to ten days for post-trial motions to be made.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343269/	141 Ga. App. 186 (1977) 233 S.E.2d 5 CHASTAIN-ROBERTS COMPANY, INC. v. BETTER BRANDS, INC. 53071. Court of Appeals of Georgia. Argued November 3, 1976. Decided January 14, 1977. Rehearing Denied February 4, 1977. Waldrep & Williams, Joseph L. Waldrep, Ronald M. Mack, for appellant. Grogan, Jones, Layfield & Swearingen, Lee R. Grogan, for appellee. QUILLIAN, Presiding Judge. Better Brands, Inc. brought an action in the Municipal Court of Columbus against Chastain-Roberts Co., Inc. The complaint alleged that the defendant was indebted to the plaintiff in the amount of $1,562.19 for beer delivered at the defendant's request to various retail outlets operated by Consolidated Customer Services, Inc. (Consolidated); that the businesses to which beer was 187 delivered were being operated by the defendant on the dates the deliveries were made by virtue of a voluntary surrender of the businesses to the defendant by authorized agents of Consolidated prior to the delivery dates and were being operated at the time of the deliveries by the defendant. Plaintiff therefore sought recovery of the amount allegedly owed. The plaintiff by amendment added a second count to the complaint which set forth that: on or about January 2, 1975 the defendant took possession of beer which had been delivered by the plaintiff to various stores operated under the name of Consolidated, which it failed to surrender to plaintiff and has converted the same to its own use; that the reasonable value of the property converted is $1,562.19; that the plaintiff demanded the surrender of the property within 10 days after discovering that the retail outlets had been padlocked and closed by the defendant but surrender of the beer was refused. This amendment sought recovery of the amount in question for unlawful conversion of the plaintiff's property. The defendant answered and denied the material allegations of the complaint. By amendment defendant set forth the defense that the plaintiff was relying upon a promise by the defendant to be responsible for the debts of Consolidated, a third party; that such promise, if made, was not in writing and was therefore void and unenforceable as provided by Code § 20-401 (2). The case came on for trial before a jury and the following evidence was adduced. The plaintiff was engaged in the wholesale sale of beer to various retail grocery stores owned and operated by Consolidated. It was the practice of plaintiff to deliver the beer to Consolidated's various retail outlets and then five days later to submit its invoice to Consolidated's central office and there be paid. On October 1, 1974, Consolidated filed a petition seeking an arrangement with its creditors pursuant to Chapter 11, Federal Bankruptcy Act. Mr. Head, the president of the plaintiff, was aware of this and on September 30, 1974, personally delivered an invoice to Consolidated. He did not receive payment that day and returned the following day at which time he was introduced to Mr. Dan Johnson. According to Mr. Head's 188 testimony, he was told by Mr. Johnson that Johnson was an employee of the defendant, Chastain-Roberts, and that "he would check the invoices and that he would be paying me from then on." He explained that the President of Consolidated was in the office a part of the time when the discussion took place and was in apparent agreement with the arrangement. Mr. Head stated that he was informed that the president of Consolidated would no longer be paying but that Mr. Johnson would be. His testimony was: "He said, `I will assure you that you will be paid and I will be responsible for paying you.'" After the meeting the plaintiff was paid by checks signed by Johnson and drawn on a different bank from that formerly used in paying the plaintiff. Head then testified that this arrangement continued for several months and he was paid regularly and promptly until January 22, 1975. At this time Consolidated's petition in the bankruptcy court was dismissed. On the same day Consolidated voluntarily delivered its assets, consisting of machinery, equipment and grocery inventory, including the beer in question, to two secured creditors, First National Bank of Columbus and Chastain-Roberts. Thus, when Mr. Head brought invoices for deliveries made the preceding week he was not paid. Shortly after January 22, 1975, he returned to Consolidated's office and in conversation with Mr. Johnson was first told he would be paid but later told that he would not be. At this time he requested that he be allowed to pick up the beer. This request also was denied. According to the testimony adduced in behalf of Chastain-Roberts, Mr. Johnson was employed by the defendant but the defendant in no way took over the business of Consolidated. Johnson was the retail accounting manager who had been sent by Chastain-Roberts to Columbus to help Consolidated set up a proper accounting system which would help protect the assets of Consolidated. Johnson's primary duty was to supervise a computer change-over at Consolidated and in line with that paid the checks for Consolidated, but in doing so did not act on behalf of the defendant Chastain-Roberts. In fact, Johnson was authorized by the board of directors and the president of Consolidated to 189 sign checks issued by Consolidated to pay its various creditors. The defendant contended it could not have taken over Consolidated since the federal court, after the date of October 1, 1974 to January 22, 1975 through its referee in bankruptcy, had control of the assets of Consolidated and all secured creditors had been enjoined from taking possession of any of the assets. At the close of all the evidence Chastain-Roberts moved for directed verdict, which motion was denied. The jury then returned a verdict in favor of Better Brands, in the amount of $1,562.19. Chastain-Roberts filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. This motion was denied and appeal was taken. Held: 1. The defendant contends the court erred in refusing to give the following request to charge: "I charge you that where one person, such as Chastain-Roberts Co., Inc. in this case, desired that certain deliveries of beer be made to Consolidated Customer Services, Inc., another corporation, stated to the Plaintiff that Chastain-Roberts Co., Inc. would see that Plaintiff got paid for the beer delivered, such an undertaking in the absence of qualifying words or terms, or evidence showing that the promise was an original and independent undertaking amounts to a guarantee, and if the said guarantee was not in writing, then said obligation is not enforceable against Chastain-Roberts Co., Inc." (Emphasis supplied.) In Southern Coal &c. Co. v. Randall, 141 Ga. 48 (80 S.E. 285), on which the defendant relies, the italicized language reads: "... he would `guarantee the payment of the account ...'" Ross v. W. P. Stephens Lumber Co., 138 Ga. App. 748 (227 SE2d 486), also cited by the defendant, involves similar language guaranteeing payment of a bill. Both cases therefore are clearly distinguishable since "guarantee" was expressly used. However, a different result obtains where language such as that contained in the request to charge is utilized. In numerous cases, our appellate courts have held that language similar to that found in the request imports that such promise constitutes an original undertaking, not a collateral one and is not within the Statute of Frauds. See e.g., "He will see that the debt is paid." Cordray v. James, 190 19 Ga. App. 156 (1) (91 S.E. 239); "She will see the bill paid." Buchanan v. Sterling, 63 Ga. 227, 228; "He would see it paid." Maddox v. Pierce, 74 Ga. 838; "I will see you paid." Crowder v. Keys, 91 Ga. 180, 181 (16 S.E. 986). Accord, Hicks v. Walker, 17 Ga. App. 391 (87 S.E. 152); Easterling v. Bell, 29 Ga. App. 465 (1) (116 S.E. 50). In summary, a promise to answer for the debt of another must be in writing (Code § 20-401 (2)) unless there is an original undertaking by one to become primarily liable. Kiser Co. v. Padrick, 30 Ga. App. 642, 644 (8) (118 S.E. 791); Moate v. H. L. Green Co., 95 Ga. App. 493, 504 (98 SE2d 185). Such question is for the jury. Pate v. Fitts, 52 Ga. App. 775 (184 S.E. 633). Where one "guarantees" another's debt there must be qualifying words or other evidence of an original undertaking. Southern Coal &c. Co. v. Randall, 141 Ga. 48, supra. But when the language used is "Chastain-Roberts Co., Inc. would see that Plaintiff got paid for the beer delivered" such terminology imports an original undertaking and, when credit is accordingly given, then there need be no writing to sustain the promise. Cordray v. James, 19 Ga. App. 156, supra; Easterling v. Bell, 29 Ga. App. 465 (1), supra. It is therefore evident that the instant charge was not a correct statement of law abstractly or as applied to the facts of this case. A request to charge must be perfect and applicable to issues involved before an appellate court will reverse the trial court for the refusal to give it. Durand v. Reeves, 217 Ga. 492 (3) (123 SE2d 552). Accord, Calhoun v. Cawley, 104 Ga. 335 (2) (30 S.E. 773); McMullen v. Vaughan, 138 Ga. App. 718, 721 (227 SE2d 440), cert. den. The trial judge properly refused to give the request to charge. 2. UCC § 109A-2 702 (2) (Ga. L. 1962, pp. 156, 223) provides: "Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within 10 days after the receipt." The defendant argues that plaintiff could not reclaim the property because the defendant was a lien creditor under UCC § 109A-2-702 (3) which reads: "The seller's right to reclaim under subsection (2) is subject to 191 the rights of a buyer in ordinary course or other good faith purchaser or lien creditor under this Article (109A-2-403). Successful reclamation of goods excludes all other remedies with respect to them." Turning to the referenced Code Section 109A-2-403 (4) (Ga. L. 1962, pp. 156, 415; 1963, pp. 188, 200; 1964, pp. 70, 74), we find a further reference to Article 9 of the UCC. There under UCC § 109A-9-301 (3) (Ga. L. 1962, pp. 156, 397) is the following definition: "A `lien creditor' means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of filing of the petition or a receiver in equity from the time of appointment." Here the defendant had a perfected security interest in after-acquired property of Consolidated. But there is nothing in Code Ann. § 109A-9-301 (3) which includes a party with such status within the meaning therein expressed of a "lien creditor." See 6C Willier & Hart, U.C.C. Reporter-Digest, 2-598.11, § 2-702 Sales (Matthew-Bender & Co.); 25 Words & Phrases "Lien Creditor." See in this connection 3A Bender's U.C.C. Service, Duesenberg & King, Sales and Bulk Transfers 13-26.2 et seq., § 13.03 [4] [ii], especially 13-29 (Matthew Bender & Co.). See also 4 Anderson's U.C.C., 233, § 9-301.10, Secured Transactions. See and compare Gray v. Raper, 115 Ga. App. 600 (155 SE2d 670); Fas-Pac, Inc. v. Fillingame, 123 Ga. App. 203 (180 SE2d 243). We note that defendant has relied solely on the fact that it is a lien creditor and we are not called upon to decide whether it might otherwise be included in UCC § 109A-2-702 (3). Under the facts here there was nothing to prevent a jury finding the plaintiff could and did rely on its right to reclaim under UCC § 109A-2-702. It should be observed that the correct computation of time is not 10 days after discovery of insolvency, as alleged in the complaint, but 10 days after receipt. UCC § 109A-2-702 (2); 2 Anderson's U.C.C. 328, 330, §§ 2-702:12 and 2-702:16, Sales. Here, the evidence in regard to when precisely the demand for return was made is not 192 altogether clear. However, the appellant's brief states it was "shortly after January 22, 1975." Since we may accept this as true under Court of Appeals Rule 18 (b) (1) and the earliest date any portion of the goods was received as shown by the invoices was less than 10 days prior thereto, we find no basis to partially reverse because of a failure to meet the time limitation. Especially is this true since nothing as to this matter has been raised by the appellant. There being some evidence to sustain the verdict, we affirm the judgment entered thereon. Judgment affirmed. Marshall and McMurray, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343255/	233 S.E.2d 419 (1977) STATE ex rel. Janet PICCIRILLO v. The CITY OF FOLLANSBEE, a Municipal Corporation, et al.[] No. 13905. Supreme Court of Appeals of West Virginia. June 7, 1977. 420 Leonard J. Tost, Weirton, for relator. MILLER, Justice: Petitioner, Janet Piccirillo, brings this original mandamus action against the City of Follansbee, its Council members and Clerk to compel the respondents to place her name on the ballot for the forthcoming municipal election. She had presented her petition and filing fee as a candidate for Council but was refused access to the ballot on the ground that she did not possess the requisite property qualification as required 421 by the Charter of Follansbee,[1] a requirement similar to the statutory provision, W.Va.Code, 8-5-7(c).[2] It is not disputed that except for the failure to meet this property requirement, petitioner is fully qualified as a candidate for Council. She contends the property qualification violates her constitutional right of equal protection as it discriminates against those who do not have assessed property. We are thus presented with a limited question of whether the State or a municipality may place a property restriction as a qualification for candidacy for the office of city council. A closely related question involving a requirement that a councilman be a freeholder was before the Court in State ex rel. Thompson v. McAllister, 38 W.Va. 485, 18 S.E. 770 (1893). That case was decided primarily by construction of Article IV, Section 4 of the West Virginia Constitution.[3] The majority held that the constitutional provision that "No person, except citizens entitled to vote, shall be elected . . ." did not prohibit the Legislature from imposing additional qualifications on the right to hold office. It viewed the constitutional requirement as establishing a broad class of eligible persons from which the Legislature could further delineate, through additional requirements, those qualified to become candidates for office. A vigorous dissent by Judge Brannon was predicated on the absence in the Constitution of any property qualification for voting[4] or holding office, and the enumeration of specific qualifications for voting and holding office in Article IV, Sections 1 and 4, compelled the conclusion that no further qualification could be implied. This construction was reinforced by the lack of any language in the Constitution giving the Legislature the right to impose additional qualifications. McAllister has been cited in a number of election cases for the proposition that the Legislature may impose reasonable qualifications above the constitutional restrictions for candidates for public office. In neither McAllister nor the cases following it has the equal protection argument 422 been advanced.[5] However, the United States Supreme Court has applied the equal protection standard embodied in the Fourteenth Amendment to invalidate a number of state voting and candidate qualification restrictions. In Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970), Georgia's requirement that a candidate for a local board of education be a freeholder was held to violate the Equal Protection Clause. The Court observed that two tests are utilized to determine whether a state classification violates the equal protection guarantee. The first is the "traditional" test, in which the Court determines whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state purpose, citing McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961), and Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 67 S. Ct. 910, 91 L. Ed. 1093 (1946). The alternative test requires the state to demonstrate a "compelling" interest in support of the challenged action or classification, citing Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969), and Cipriano v. City of Houma, 395 U.S. 701, 89 S. Ct. 1897, 23 L. Ed. 2d 647 (1969). The Court held in Turner that under either test Georgia's freeholder requirement was unconstitutional. This Court has in the past discussed the constitutional guarantee of equal protection found in Article III, Section 17 of the West Virginia Constitution. In Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957), it was held that the equal protection guarantee required the furnishing of a free transcript to indigent defendants without counsel. In State ex rel. Payne v. Walden, W.Va., 190 S.E.2d 770 (1972), the State distress statute was held violative of equal protection. However, in neither Linger nor Payne was there any extensive discussion as to the test to be applied in utilizing West Virginia's equal protection guarantee. This Court did consider and apply the Federal standard for equal protection under the Fourteenth Amendment to the United States Constitution in Cimino v. Board of Education of County of Marion, W.Va., 210 S.E.2d 485 (1974), in the following language: "Whether a statute or governmental action violates the Equal Protection Clause is a determination made by the application of one of two constitutional tests. The more demanding test relates to statutes which impinge upon sensitive and fundamental rights and constitutional freedoms, such as religion and speech. In order to uphold such a statute, a reviewing court must find that a compelling state interest is served by the classification. Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768; Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600. "In all other instances, the constitutionality of a statute, challenged under the Equal Protection Clause, is subject to the traditional standard requiring that the state law be shown to bear some rational relationship to legitimate state purposes. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16. Under this test, the court must consider whether the classification is a rational one based on social, economic, historic or geographical factors; whether the classification bears a reasonable relationship to a proper governmental purpose; and whether all persons 423 within the classes established are treated equally." [210 S.E.2d at 490] We adopt these standards in applying the Equal Protection Clause of the West Virginia Constitution. Article III, Section 17. In order to test the disputed action in the present case, a determination must first be made as to whether the right to become a candidate for office is a fundamental right, requiring the more demanding compelling interest test. If not so found, then the less strict rational basis test is applicable. This Court recognized in Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966), that the right to become a candidate for election to public office is a valuable and fundamental right. There it was held that while the Legislature could prescribe qualifications for office, such qualifications "must be reasonable and not in conflict with any constitutional provision." Supra, 151 W.Va. at 121, 150 S.E.2d at 597. In Brewer, no equal protection argument was advanced and the Court upheld W.Va.Code, 3-5-4, requiring the same qualifications for candidates in a primary election for county commissioner as was required in a general election by Article VIII, Section 23 of the West Virginia Constitution. In State ex rel. Maloney v. McCartney, W.Va., 223 S.E. 607 (1976), both the majority and the minority recognized that the right to become a candidate for office is a fundamental right, entitled to constitutional protection under the Equal Protection Clause and federal First Amendment concepts of freedom of association and expression.[6] These federal constitutional rights are paralleled in Article III, Sections 7, 16 and 17 of the West Virginia Constitution. Other courts have also concluded that the right to run for office is a fundamental right. Mancuso v. Taft, 476 F.2d 187 (1st Cir. 1973); Thompson v. Mellon, 9 Cal. 3d 96, 107 Cal. Rptr. 20, 507 P.2d 628 (1973); Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965). Once determined that the right to run for office is a fundamental right, the test is whether the challenge restriction serves a compelling state interest. In Maloney, supra, the Court concluded that limitations on tenure in the office of Governor serve a sound and salutary benefit on the body politic by breaking control of entrenched political machines, thereby fostering a more competitive political system. This was a sufficiently compelling state purpose to justify the constitutionality of the Governor's Succession Amendment.[7] We do not believe that a compelling state interest can be demonstrated in the property qualifications imposed in this case. The reasoning that motivated the Court in McAllister to uphold the freeholder requirement does not appear persuasive in today's society.[8] The ownership of property bears 424 no fixed relationship to honesty, integrity and intelligence, which are qualities one expects in public officials. Even if we were to grant that property ownership enhances official morality, the requirement in the present case is so minimal as to be irrelevant for that purpose. The requirement, having little positive benefit to recommend it, carries several insidious consequences. First, it acts as a trap for the unwary who have failed to ensure that their property has been assessed and, in effect, prohibits them from holding office. Secondly, because the tax assessment procedures for real and personal property start on July 1 for the succeeding year, it is possible for a person to move into and be a resident of a municipality for 19 months and still not have property assessed in his name or have paid taxes thereon as required by the ordinance and the statute.[9] Thus, it appears that the property qualification carries a further penalty of imposing a durational residency requirement by virtue of the time periods built into our property assessment laws. Durational qualifications for voters and candidates have also been attacked under equal protection standards.[10] We do not, however, reach the constitutionality of the implied durational qualification in this case, as we find that there is no compelling state interest in the property requirement as a candidate qualification for city council. It must, therefore, fall before our equal protection standard under Article III, Section 17 of the West Virginia Constitution. Writ awarded. NOTES [*] Editor's Note: The decision in State v. Bragg, published in advance sheets at this citation (233 S.E.2d 419) was withdrawn from the bound volume because rehearing is pending. [1] "Eligibility of Officers. Section 6. The Mayor and Councilmen, City Attorney, Chief of Police, City Clerk and City Collector and Treasurer, at the time of their election or appointment, shall be a legal voter of said city, and, for the preceding year, assessed with and paid taxes upon at least One Hundred Dollars ($100.00) worth of real or personal property in said city." [2] "Unless otherwise provided by charter provision or ordinance, the mayor, recorder and councilmen must be residents of the municipality, must be qualified voters entitled to vote for members of its governing body, and for the year preceding their election must have been assessed with and paid real or personal property taxes to the municipality upon at least one hundred dollars' worth of property therein, except that the city manager in a manager form of government need only be a resident of the city at the time of his appointment: . . ." [3] "No person, except citizens entitled to vote, shall be elected or appointed to any state, county or municipal office; but the governor and judges must have attained the age of thirty, and the attorney general and senators the age of twenty-five years, at the beginning of their respective terms of service; and must have been citizens of the State for five years next preceding their election or appointment, or be citizens at the time this Constitution goes into operation." [4] Article IV, Section 1, West Virginia Constitution: "The male citizens of the State shall be entitled to vote at all elections held within the counties in which they respectively reside; but no person who is a minor, or of unsound mind, or a pauper, or who is under conviction of treason, felony, or bribery in an election, or who has not been a resident of the State for one year, and of the county in which he offers to vote, for sixty days next preceding such offer, shall be permitted to vote while such disability continues; but no person in the military, naval or marine service of the United States shall be deemed a resident of this State by reason of being stationed therein." [5] In State ex rel. Maloney v. McCartney, W.Va., 223 S.E.2d 607 (1976), which did not cite McAllister, an equal protection claim under the Fourteenth Amendment of the United States Constitution was asserted unsuccessfully against the provisions of Article VII, Section 4 of the West Virginia Constitution relating to the Governor's succession. [6] While the constitutional guarantee of freedom of association and speech are not asserted in this case, it would appear that a test somewhat similar to the equal protection test would be applicable where their abridgment is claimed. Cousins v. Wigoda, 419 U.S. 477, 95 S. Ct. 541, 42 L. Ed. 2d 595 (1975); Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S. Ct. 656, 38 L. Ed. 2d 635 (1974); Minielly v. State, 242 Or. 490, 411 P.2d 69 (1966). There may be a moderating distinction as to both tests, where the claim involves the mechanics of voter or candidate registration. Compare Rosario v. Rockefeller, 410 U.S. 752, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973) with Kusper v. Pontikes, 414 U.S. 51, 94 S. Ct. 303, 38 L. Ed. 2d 260 (1973), which may be nothing more than stating that in this area of voter and candidate registration, the Court will be inclined to find a compelling state interest. Compare Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315, 39 L. Ed. 2d 702 (1974), with Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974), and American Party of Texas v. White, 415 U.S. 767, 94 S. Ct. 1296, 39 L. Ed. 2d 744 (1974). [7] The minority in Maloney maintained no compelling state interest could be found and cited the lack of tenure restriction on judges and legislators, but these offices historically lack the political patronage and entrenched political machinery encountered in the office of Governor. [8] "On the other hand, among those not owning real estate belong the floating population those who are too trifling and unthrifty to want property, and those who, having wasted their substance in riotous living, and spent their days in idleness are jealous of their neighbors' prosperity, and are ready to tear down, destroy, and scatter broadcast, the results of hard earnings, frugal management, and careful savings. To them, although electors, the prosperity and welfare of the municipality amounts to nothing, for, like the Bedouins of the plains, `neath the shadows of night they can fold their tents, and silently steal away, while, if there are any among the unfortunate but deserving poor who would make capable officers, their more successful neighbors are ever ready and willing to lend a helping hand, and see that they own the necessary `ten feet of ground.'" [38 W.Va. at 494-495, 18 S.E. at 773]. [9] W.Va.Code, 11-3-1, fixes the annual date of assessment of property as of July 1. W.Va. Code, 11-3-2, sets January 30 of the next year as the cutoff date for the assessor to complete the land and personal property tax. By W.Va. Code, 11-3-19, he delivers a copy of property books to the sheriff not later than June 7. Under W.Va.Code, 11A-1-6, the sheriff commences to collect taxes on July 15, and under W.Va.Code, 11A-1-3, taxes on real and personal property are payable in two installments, the first by September 1 of the year for which the assessment is made and the second installment on March 1 of the following year. Since the challenged restrictions require the candidate to "have assessed property and paid taxes thereon", for a person moving into a municipality after January 30, 1977, when the assessor's books close, the date of payment would be September, 1978, a period of 19 months before he would be eligible to file. [10] Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Thompson v. Mellon, 9 Cal. 3d 96, 107 Cal. Rptr. 20, 507 P.2d 628 (1973); Annot., 65 A.L.R. 3d 1029 (1975). It is perhaps of some significance that the United States Supreme Court has affirmed without opinion several cases which have upheld durational requirements on statewide offices. Sununu v. Stark, 383 F. Supp. 1287 (D.N.H.1974), aff'd, 420 U.S. 958, 95 S. Ct. 1346, 43 L. Ed. 2d 435 (1975) (State Senator); Kanapaux v. Ellisor, 419 U.S. 891, 95 S. Ct. 169, 42 L. Ed. 2d 136 (1974) (Governor); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.1973), aff'd, 414 U.S. 802, 94 S. Ct. 125, 38 L. Ed. 2d 39 (1973) (Governor).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343308/	233 S.E.2d 624 (1977) 32 N.C. App. 660 Donald M. TOWNE, a/k/a D. Jonathan Balfour v. Kenneth COPE. No. 7630SC776. Court of Appeals of North Carolina. April 6, 1977. 626 Wesley F. Talman, Jr., and Joel B. Stephenson, Asheville, for plaintiff-appellant. Atty. Gen., Rufus L. Edmisten by Associate Attys., T. Lawrence Pollard, Joan H. Byers, Raleigh, for defendant-appellee. HEDRICK, Judge. Since it is not necessary, even inadvisable in most cases, for the trial court in ruling on a motion for summary judgment to find the facts specially and state separately its conclusions of law as in a trial before the judge without a jury, Wall v. Wall, 24 N.C.App. 725, 212 S.E.2d 238 (1975), we do not rule specifically on plaintiff's numerous assignments of error based on exceptions to the findings and conclusions made in this case. Rather, we go directly to the question of whether the alleged slanderous statements made by the defendant to the Sheriff were qualifiedly privileged, and whether the record discloses that there are no genuine issues of material fact and defendant is entitled to judgment as a matter of law. It is the occasion of the publication of the alleged defamation that is privileged, Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962), and the burden is on the defendant to prove the affirmative defense of qualified privilege by establishing facts sufficient to show that the publication was made on a privileged occasion. Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971). "Conditional or qualified privilege is based on public policy. It does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege, and makes a showing of falsity and actual malice essential to the right of recovery. "A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest. The essential elements thereof are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper 627 manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty." 50 Am.Jur.2d Libel & Slander § 195, pp. 698-699 (1970). Where the occasion is privileged, the presumption of law is that the defendant acted in good faith, and the burden is on the plaintiff to prove that the publication was made with actual malice in order to destroy the qualified privilege. Stewart v. Check Corp., supra; Ponder v. Cobb, supra; Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891). "Whether the occasion is privileged is a question of law for the court, subject to review, and not for the jury, unless the circumstances of the publication are in dispute, when it is a mixed question of law and fact." Ramsey v. Cheek, supra, at 274, 13 S.E. at 775. There is no dispute as to the circumstances of the publication in this case. It was made by one law enforcement officer who had just arrested the plaintiff to another law enforcement officer who was charged with the safekeeping of plaintiff in the Cherokee County jail. Both the defendant and the Sheriff had an interest in and duty with reference to the safekeeping of plaintiff while he awaited extradition to New Hampshire. The statements made by the defendant to the Sheriff concerning plaintiff's alleged mental state and political persuasion, and concerning the facts surrounding plaintiff's alleged abduction of his three children and subsequent arrest in North Carolina might be useful to Sheriff Stalcup in carrying out his responsibilities as Sheriff of Cherokee County. Therefore, the record establishes that the alleged statements were made on a qualifiedly privileged occasion, and summary judgment for defendant was appropriate unless the record discloses, as plaintiff contends, a genuine issue exists as to whether the statements were made with actual malice on the part of defendant in which case plaintiff could recover even if the occasion were privileged. ". . . When a motion for summary judgment is made and supported as provided in this rule [Rule 56], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." G.S. 1A-1, Rule 56(e). In the present case defendant supported his motion for summary judgment by establishing the affirmative defense of qualified privilege. Even though plaintiff, thereafter, had the burden of setting forth specific facts "by affidavits or otherwise" showing a genuine issue exists as to whether defendant made the alleged statements with actual malice, he relied simply on the allegations in his complaint to show malice. Therefore summary judgment was appropriately entered against him. Plaintiff contends the court erred in "entertaining" the motion for summary judgment and entering an order thereon when the motion had not been "docketed" with the Clerk of Superior Court of Cherokee County, the county in which the action had been commenced. While G.S. 1A-1, Rule 5(d) requires that a motion for summary judgment "shall be filed with the court," we find no prejudicial error in the court's hearing and ruling on defendant's motion for summary judgment since the record discloses the following statement of the court: "Inasmuch as copies of the defendant's Motion for Summary Judgment, Memorandum in support of Motion for Summary Judgment and Addendum to the Memorandum in support of the Motion for Summary Judgment were filed with Judge Lacy Thornburg, Residing Judge for Cherokee County, and Wesley F. Talman, Jr., Attorney for the Plaintiff, and that all parties were put on notice, or had reason to know, of the fact that the defendant had made a Motion for Summary Judgment, the Court therefore considered that the Motion for Summary Judgment *628 and supporting affidavits and documents were sufficiently filed with the Court in this case. "At the time this motion came on for hearing all parties were represented through counsel, and made no objections to the hearing of this Motion, or to its not being properly filed with the Clerk's Office of Cherokee County. The Court therefore concludes that if the filing was in any way insufficient under the rules, the objection to it being heard was waived by the presence of all parties and failure to object. s/LACY H. THORNBURG Judge Presiding" Finally plaintiff contends Judge Thornburg, Resident Superior Court Judge for the Thirtieth Judicial District had no authority to enter summary judgment for defendant out of session absent an agreement by parties thereto. G.S. 7A-47.1 in pertinent part provides: "[I]n all matters and proceedings not requiring a jury or in which a jury is waived, the resident judge of the district and any special superior court judge residing in the district shall have concurrent jurisdiction with the judge holding the courts of the district and the resident judge and any special superior court judge residing in the district in the exercise of such concurrent jurisdiction may hear and pass upon such matters and proceedings in vacation, out of session or during a session of court." Since Judge Thornburg is the Resident Judge of the Thirtieth Judicial District of which Cherokee County is a part, and since the hearing was on a matter not requiring a jury, we hold he had the authority to enter the judgment out of session. Summary judgment for defendant is Affirmed. BRITT and CLARK, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343307/	238 Ga. 461 (1977) 233 S.E.2d 169 JACOBS v. HOPPER. 31705. Supreme Court of Georgia. Argued November 22, 1976. Decided February 18, 1977. Rehearing Denied March 8, 1977. Thomas M. West, for appellant. Arthur K. Bolton, Attorney General, Kirby G. Atkinson, Assistant Attorney General, for appellee. PER CURIAM. This is a habeas corpus case. Appellant and two others were convicted of burglary after a joint jury trial, and the conviction was upheld on direct appeal. Jacobs v. State, 133 Ga. App. 812 (212 SE2d 468) (1975). Prior to the trial, appellant filed a motion to suppress certain evidence obtained in a search incident to arrest, alleging that the arrest was made without probable cause. When neither appellant nor his counsel appeared at the hearing on the motion, the trial court dismissed the motion on the ground it had been abandoned. The record contains no objection at the trial when this evidence, in the form of testimony of the arresting officer, was introduced. Also introduced at the trial through the testimony of a police officer was an alleged confession made to the officer by one of appellant's co-defendants (who was represented by separate counsel) which implicated the appellant and the third co-defendant as the perpetrators of the burglary. After a substantial Jackson-Denno hearing (out of the jury's presence), the court concluded that the statement was freely and voluntarily made. The co-defendant, who allegedly made this statement, did not take the stand. I. Appellant claims that the trial court deprived him of his constitutional rights under the 4th and 14th Amendments in admitting evidence, unobjected to at trial, which was obtained in an illegal search. We find no merit in this claim for the following reasons. Code Ann. § 50-127 provides that grounds for the writ of habeas corpus exist where: "in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia or the laws of the State of Georgia..." (Emphasis supplied.) 462 In Stone v. Powell, ___ U. S. ___ (96 SC 3037, 49 LE2d 1067) (1976) the Supreme Court held that "a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review." Id., n. 37 at 96 SC 3052, 49 LE2d 1088. In reaching that conclusion, the court noted that, "Post-Mapp decisions have established that the [exclusionary] rule is not a personal constitutional right." Id. at 96 SC 3048, 49 LE 2d 1083. (Emphasis supplied.) Rather, "the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect." Id., quoting from United States v. Calandra, 414 U.S. 338, 348 (94 SC 613, 38 LE2d 561) (1974). The court recognized the "minimal utility of the rule when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding," Stone v. Powell, n. 37, supra, and concluded that any possible deterrent effect to be gained by applying the rule on collateral review was "outweighed by the acknowledged costs to other values vital to a rational system of criminal justice." From this it is clear that the introduction of evidence obtained in an illegal search or seizure is not a "substantial denial" of a defendant's rights under the Constitution of the United States. The further question is whether it is necessary to impose the exclusionary rule, in a state habeas corpus proceeding, in order to effectuate the protections of the Fourth and Fourteenth Amendments. We believe the test announced by the Supreme Court in Stone v. Powell, supra, regarding federal habeas corpus review would serve equally well for state habeas corpus review, and we therefore adopt it. From the record, it appears that the appellant did have a full and fair opportunity to litigate his Fourth Amendment claims at trial and on direct review. We note, and emphasize, that the test is "full and fair opportunity"; not whether the claim was, in fact, litigated. Code Ann. § 27-313 sets out the procedure by which a claim of unlawful search and seizure is tested. We believe Code Ann. § 27-313 provides the defendant a "full and fair opportunity" to have his Fourth Amendment claims 463 considered prior to his trial, and it provides a method by which a defendant may secure a record on these issues that will enable a court, on direct appeal, to review the trial court's ruling. The appellant here, after filing a pre-trial motion to suppress under Code Ann. § 27-313, failed to appear at the evidentiary hearing; failed to move for a continuance; failed to object at trial to the dismissal of his motion entered on the ground that the motion was abandoned; and failed to object to the introduction of the evidence at trial. Under these circumstances we find nothing to indicate that appellant was denied a full and fair opportunity to litigate his Fourth and Fourteenth Amendment claims. Therefore, his claim, based on the introduction at his trial, of evidence obtained in an illegal search and seizure, does not warrant habeas corpus relief. In view of our holding today, Morgan v. Kiff, 230 Ga. 277 (196 SE2d 445) (1973), to the extent that it is in conflict with what we hold here, will no longer be followed. That case was decided before this court had the benefit of the Supreme Court's decision in Stone v. Powell, supra. II. Appellant also complains that his conviction must be set aside because highly prejudicial testimony as to a "confession" made by one of his co-defendants, who did not testify, was not excluded from the evidence. The record reveals that the introduction of testimony regarding the statement made by the appellant's co-defendant was objected to on the ground that the statement was not made voluntarily. Although the rule announced in Bruton v. United States, 391 U.S. 123 (88 SC 1620, 20 LE2d 476) (1968) would clearly have required exclusion of the highly damaging testimony, the applicability of the Bruton rule was not relied on in the objection. After a Jackson-Denno hearing the objection was overruled and the testimony was admitted into evidence. We find, under the circumstances of this case, that appellant's claim has merit. After a thorough examination of the record, we are unable to find that appellant was not harmed by the introduction of the evidence and we therefore must reverse the judgment of 464 the habeas court and order that the appellant be given a new trial. Judgment reversed. All the Justices concur, except Gunter, J., who concurs in Division II and in the judgment, Jordan, J., who concurs specially as to Division II, Ingram, J., who concurs in the judgment only and Nichols, C. J., and Hall, J., who concur in Division I, but dissent to Division II and to the judgment. JORDAN, Justice, concurring specially. I concur in Division II of the opinion for the following reason: Appellant complains, for the first time that the introduction of evidence of his co-defendant's "confession" deprived him of his constitutional right to confrontation in violation of the Sixth and Fourteenth Amendments. See Bruton v. United States, 391 U.S. 123 (88 SC 1620, 20 LE2d 476) (1968); Roberts v. Russell, 392 U.S. 293 (88 SC 1921, 20 LE2d 1100) (1968). In my view, our first inquiry must be whether appellant, by his failure to object to this evidence (on this ground), both at trial and on appeal, has waived his right to rely on this constitutional protection. Our habeas statute contains a waiver standard which applies to waiver of federal constitutional rights: "Except for objections relating to the composition of a grand or traverse jury, rights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or abandonment of a known right or privilege which relinquishment or abandonment was participated in by the party and was done voluntarily, knowingly, and intelligently." Code Ann. § 50-127 (1). (Emphasis supplied.) 465 However, I do not feel that we are bound to apply this standard because the question of when a right secured by the Federal Constitution has been waived, is itself, a federal question. Fay v. Noia, 372 U.S. 391, 439 (83 SC 822, 9 LE2d 837) (1963). The standard set forth by the legislature in the statute constitutes an attempt by the legislature to impose its construction of the requirements of the Constitution of the United States regarding waiver of constitutional rights on this court. This the legislature may not do. The duty and authority to interpret the provisions and requirements of the Federal Constitution resides in this court. Const. Art. VI, Sec. II, Par. IV (Code Ann. § 2-3704) (Rev. 1973). The question of when a right secured by the Federal Constitution is waived often requires consideration of numerous, and sometimes conflicting, values. Decisions of the Supreme Court have made it clear that some rights are so fundamental that they require a personal waiver, made by the defendant voluntarily, knowingly and intelligently. These rights include: the right to counsel and the right to refrain from self-incrimination, Miranda v. Arizona, 284 U.S. 436 (86 SC 1602, 16 LE2d 694) (1966); the right to appeal, Fay v. Noia, supra, at 439; the right to trial by jury, Patton v. United States, 281 U.S. 276, 312 (50 SC 253, 74 LE2d 854) (1930); and rights waived by guilty pleas, Boykin v. Alabama, 395 U.S. 238 (89 SC 1709, 23 LE2d 274) (1969). The Supreme Court has made it equally clear, that it is not necessary to show a personal waiver in every case where a right existing under the Constitution is not asserted. Estelle v. Williams, 425 U.S. 501 (96 SC 1691, 48 LE2d 126) (1976); Davis v. United States, 411 U.S. 233 (93 SC 1577, 36 LE2d 216) (1973); Francis v. Henderson, 425 U.S. 536 (96 SC 1708, 48 LE2d 149) (1976). This case involves a claim of denial of the right to confrontation based upon a violation of the Bruton rule. Bruton v. United States, supra. The question here is whether, by failure to make a timely objection to the introduction of this evidence, appellant has waived his right to confrontation. It is clear that if the right to confrontation, in the context of the Bruton rule, is of such a fundamental nature as to require the personal Johnson 466 v. Zerbst waiver, i. e., voluntarily knowingly and intelligently, then this record could not support a finding of waiver. Furthermore, the Supreme Court has indicated that a personal waiver is required in some circumstances where a defendant's right to confrontation is abridged. See Schneckloth v. Bustamonte, 412 U.S. 218, 237 (93 SC 2041, 36 LE2d 854) (1972); Barber v. Page, 390 U.S. 719 (88 SC 1318, 20 LE2d 255) (1967); Brookhart v. Janis, 384 U.S. 1 (86 SC 1245, 16 LE2d 314) (1965). However, I believe that it is unnecessary to decide, in this case whether the right to confrontation in these circumstances must be personally waived by the defendant or may be waived by defendant's counsel as a matter of trial strategy. The record reveals that the introduction of the statement made by appellant's co-defendant was objected to on the ground that the statement was not made voluntarily. Thus, it is clear from this record that appellant's counsel did not wish to allow the statement in evidence; on the contrary, he attempted to have the statement excluded. This indicates that the failure to assert appellant's right to confrontation was inadvertent, and not a deliberate decision. I would not, in this case, decide under what circumstances, if any, the state's legitimate interest in requiring contemporaneous objection, when balanced against a violation of some right secured by the Constitution, would justify a finding of waiver where the failure to object was due to inadvertence. I do however, believe that the right to confrontation, as it arises in the context of a violation of the Bruton rule, is of sufficient importance to the integrity of the fact finding process that an inadvertent failure to assert the right by contemporaneous objection should not foreclose appellant from raising the claim on habeas corpus. Because I agree that the error was not harmless, I think we must reverse the judgment of the habeas court and order that the appellant be given a new trial. Bruton v. United States, supra; Roberts v. Russell, supra. GUNTER, Justice, concurring. I agree with Division II of the court's opinion and the reversal of the judgment below. However, I do not agree with Division I of the court's opinion, and for that reason 467 I write this concurring opinion. First, this record shows that there was more than adequate "probable cause" for the arrest, the search, and the seizure. Therefore, solely on the basis of the facts presented, there is no valid search and seizure claim in this case. The habeas judge's findings of fact asserted this conclusion. Second, since the judgment below is reversed and a new trial ordered, a search and seizure claim, whether meritorious or not, can still be asserted under Georgia's suppression statute, Code Ann. § 27-313. In this case I think the statutory motion to suppress was purposely abandoned because of its clear lack of any merit. The evidence obtained and used by the state in this criminal trial was not the fruit of an illegal search and seizure. Therefore, treatment by the court of the issue of waiver of a federal constitutional right is superfluous and, in my view, somewhat gratuitous. HALL, Justice, dissenting. Like the Justices who join the per curiam opinion, I also pause at the flagrant Bruton violation presented by this record; but unlike them I am willing to consider the possibility that counsel had some intelligent reason not to invoke the Bruton rule. Accordingly, I cannot join that opinion, which looks at a record which is totally silent on the reasons for not invoking Bruton, and assumes that counsel did not intend a waiver. The general rule is that a point is waived by failure to assert it. The Bruton objection to this evidence was never asserted at trial. In my reading of the authorities, I find it a hard task to decide whether a Bruton violation may be waived by counsel or only by defendant himself. Further assuming that counsel may waive it, the issue whether it must be waived by choice or may be waived merely by inadvertence is itself quite complex. In my view the per curiam assumes too much. Apparently, it assumes that this right may not be waived merely by counsel's inadvertence; then it assumes that in this case, though the record is silent, a quick reading of counsel's mind indicates that there was nothing there but blank *468 inadvertence; and it then concludes that no waiver has occurred. This treatment simply sweeps too many issues under the rug for me. When a habeas record as it stands is insufficient to provide a basis for deciding the factual question of waiver vel non, an evidentiary hearing is usually held. See, e. g., Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976) (Jordan, J., writing for a unanimous court). The point has greater impact than just this petitioner's fate, because I fear that the per curiam will invite counsel in the future to create records as silent and ambiguous as possible, to take advantage of the per curiam's suggestion that hereafter on a silent record containing a possible foul-up on counsel's part, we will presume that a constitutional violation occurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/482224/	810 F.2d 199 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Stewart B. BROOKS, Plaintiff-Appellant,v.Rex A. ZENT; Richard P. Seiter; John H. Newsome; JudithAllen, Defendants- Appellees. No. 85-3962. United States Court of Appeals, Sixth Circuit. Nov. 17, 1986. Before WELLFORD and GUY, Circuit Judges, and PECK, Senior Circuit Judge. ORDER 1 Appellant appeals pro se from the district court's order granting the defendants' motion for summary judgment, thereby denying his 42 U.S.C. § 1983 first and fourteenth amendment claims. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and the record, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. The district court dealt with the issues fully and properly analyzed the pertinent authority. 2 It is ORDERED that the district court's judgment be affirmed for the reasons stated in the district court's opinion. Rule 9(d)(3), Rules of the Sixth Circuit.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1342502/	672 S.E.2d 234 (2008) WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, Division of Highways, A State Agency, Petitioner Below, Appellee v. CONTRACTOR ENTERPRISES, INC. and THE SHERIFF OF LOGAN COUNTY, Respondents Below Contractor Enterprises, Inc., Appellant. No. 33869. Supreme Court of Appeals of West Virginia. Submitted: September 23, 2008. Decided: November 14, 2008. Dissenting Opinion of Chief Justice Maynard December 16, 2008. Dissenting Opinion of Justice Benjamin January 9, 2009. 235 Robert B. Paul, Esq., Anthony Halkias, Esq., Legal Division, WV Department of Transportation, Charleston, for Appellee. James M. Cagle, Esq., Law Office of James M. Cagle, Charleston, for Appellant. A.L. Emch, Esq., Laurie Miller, Esq., Jackson Kelly, PLLC, Charleston, for Amicus Curiae Contractors Association of West Virginia. PER CURIAM.[1] The West Virginia Department of Transportation through its Division of Highways filed a condemnation proceeding in Logan County seeking to condemn property owned by the appellant, Contractor Enterprises, Inc. In circuit court the appellant challenged the proceeding claiming that the property to be condemned was not necessary to accomplish a public purpose. The circuit court denied the appellant's motion to dismiss and appellant's motion for a permanent injunction. Appellant appeals the circuit court decision denying both motions. For the reasons stated infra, we affirm. I. The appellant, Contractor Enterprises, Inc. ("CEI"), is a family-owned corporation which engages in general contracting and surface mining. The same family also owns a corporation, Heeter Construction Inc. ("Heeter"), which engages in heavy constructionbuilding highways and dams. Together these companies own and operate a substantial number of heavy equipment machines. The companies' operations include both surface mining and highway construction in Logan County. The property at issue in this case, 31.96 acres,[2] was purchased by CEI on April 7, 2006, from Cecil I. Walker Machinery Co. CEI's intended use of the property was for storing heavy equipment and for possible use 236 in connection with highway construction activities.[3] CEI anticipated that the property could serve as a highway construction waste material storage site for future Logan County highway construction projects.[4] In May 2006 the West Virginia Department of Transportation ("DOT") through its Division of Highways ("DOH") advertised a Route 10 road construction project, Rita Bridge to Midway Plaza, for bid. Among the bidders was Heeter Construction, Inc. The record reflects that five bids were received and that Heeter was the low bidder. The Heeter bid, however, was substantially higher than DOH estimates for the project. After conducting an evaluation of the bids, the DOH rejected all bids which were submitted. On December 15, 2006, after rejecting the bids on the Rita Bridge to Midway Plaza construction project, the DOT through the DOH filed an action to "CONDEMN LAND FOR PUBLIC USE" against CEI and the Sheriff of Logan County[5] for the taking of the 31.96 acres at issue in this case.[6] On January 2, 2007, CEI filed a motion to dismiss the petition, and alternatively sought a preliminary injunction against the DOT. On January 24, 2007, the circuit court awarded CEI a temporary injunction against the DOT and set CEI's motions for final hearing. On February 5 and February 12, 2007, the circuit court conducted hearings on CEI's motions. On June 8, 2007, the circuit court entered an order making extensive findings of facts and conclusions of law. The evidence revealed, and the circuit court concluded, that the DOH's purpose in acquiring the 31.96 acres was for use as a waste material storage site in connection with future Route 10 public road projects and that the use of the 31.96 acres was not limited to any one segment or segments of the overall Route 10 project. In its order the court also stated that "[t]he Defendant has failed to show that the DOT decision to acquire property for a waste material storage site or that the selection of this site was arbitrary, capricious, based upon fraudulent behavior, oppressive, in bad faith, or contrary to law." The circuit court concluded by stating: The "Man-Rita Road Project" is for the use of the public and it is necessary to have waste material sites to complete the project, therefore, the Court FINDS that the condemnation of the Defendant's project for use as a potential waste material site for the completion of the road project is for a public purpose. The order denied CEI's motion to dismiss the petition and ordered the preliminary injunction previously awarded dissolved. It is from the June 8, 2007 order that CEI appeals. II. The appellant does not argue that the circuit court's factual findings are erroneous, but does, however, argue that the circuit court's decision to permit the DOH to proceed with the taking is inconsistent with the facts found by the circuit court, and the decision is contrary to controlling law. From our examination of the record, we find no reason to disturb the circuit court's factual findings. Inasmuch as the resolution of this case rests upon questions of law, our review is de novo. In Syllabus Point 1, in part, of Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996) this Court held: "Questions of law are subject to de novo review." 237 The general statute relating to eminent domain, W.Va.Code, 54-1-2(a)(1) [2006], provides that [t]he public uses for which private property may be taken ... are ... [f]or the construction, maintenance and operation... of public roads ... for the public use. In the instant case there is no dispute that the Rita Bridge to Midway Plaza construction project is a public road project for public use as contemplated by W.Va.Code, 54-1-2. Furthermore, there is no issue as to whether a waste material storage site will be needed for the Rita Bridge to Midway Plaza construction project. The order in the instant case plainly states "... that there is a public necessity for waste material sites as part of the overall road construction project...." In describing the role of the courts in condemnation proceedings, this Court has held: Once the statutory power of eminent domain has been conferred upon an agency, a court's inquiry into the scope of such power is limited solely to the question of whether it is to be exercised in order to provide a public service. Syllabus Point 1 of Potomac Valley Soil Conservation Dis. v. Wilkins, 188 W.Va. 275, 423 S.E.2d 884 (1992). We begin by examining whether or not the DOT through the DOH properly acted within its statutory authority and discretion. In W.Va.Code, 17-4-1 [1972] the Legislature provided that "[t]he authority and control over the state roads shall be vested in the commissioner of highways." Furthermore, this Court in discussing the policy of the Legislature in connection with the construction and maintenance of roads has observed that ... it was the policy of the Legislature in the enactment of the aforesaid statutes [Chapter 17 of the W.Va.Code] to provide a comprehensive and all-embracing system of statutory law, establishing a general state road system ... and providing for and investing in the commission and the commissioner the exclusive power over the construction, maintenance and control of said system[.] State ex rel. Keene v. Jordan, 192 W.Va. 131, 133, 451 S.E.2d 432, 434 (1994) (quoting Thacker v. Ashland Oil Refining Co., 129 W.Va. 520, 528, 41 S.E.2d 111, 115-16 (1946)). At issue in the instant case is the more specific matter of waste material storage sites and the power to condemn land for such use. Under our law the DOH is authorized to acquire land for material storage pursuant to W.Va.Code, 17-2A-8(5) [2002] which provides that [i]n addition to all other duties, powers and responsibilities given and assigned to the commissioner [of highways] in this chapter, the commissioner may: ... (5) Acquire... by ... right of eminent domain ... all lands ... necessary and required for roads, rights-of-way, cuts, fills, drains, storage for equipment and materials and road construction and maintenance in general[.] (Emphasis added.) The commissioner's powers are further described in W.Va.Code, 17-2A-17(f) [1967] which provides that ... the commissioner may acquire ... all real ... property ... deemed by the commissioner to be necessary for present or presently foreseeable future state road purposes.... "[S]tate road purposes" shall include provision for ...: * * (f) Road-building material storage sites.... (Emphasis added.) The commissioner of highways is also given the power to initiate eminent domain proceedings. W.Va.Code, 17-4-5 [1936] states: The state road commissioner [division of highways commissioner][7] ... may acquire by right of eminent domain any land ... for the purpose of constructing ... any state road ... or for any other purposes 238 authorized by any provision of this chapter [Chapter 17] .... The Rita Bridge to Midway Plaza construction project is a public road project for public use as contemplated by W.Va.Code, 54-1-2. Furthermore, the undisputed facts reveal that a waste material site will be needed for the Rita Bridge to Midway Plaza construction project as reflected in the circuit court's order which states "... that there is a public necessity for waste material sites as part of the overall road construction project...." From the statutory enactments we believe that the DOH has the statutory authority and discretion to take property for use as a waste material storage site. The DOH enjoys a legal presumption that it acted properly under the law. In Syllabus Point 5 of State by State Road Commission v. Professional Realty Company, 144 W.Va. 652, 110 S.E.2d 616 (1959), this Court held: In the absence of evidence to the contrary, the state road commissioner will be presumed to have performed properly and in good faith duties imposed upon him by law. The statutory power of the DOH, however, is not without limitation. In Syllabus Point 2 of Professional Realty Company, supra, this Court also held: The necessity for the improvement of a state highway is within the sound discretion of the state road commissioner, and his decision that such necessity exists will not be interfered with by the courts, unless in the exercise of such discretion he has acted capriciously, arbitrarily, fraudulently or in bad faith. The burden of proving that the DOH acted capriciously, arbitrarily, fraudulently or in bad faith is upon the party challenging the DOH decision to condemn. The appellant's argument in support of its position that the DOH acted capriciously, arbitrarily, fraudulently or in bad faith relies, in part, upon a DOH change made to the road construction plans for the Rita Bridge to Midway Plaza project after the DOH rejected the initial bids. The construction plan change added a reference to the subject property which stated that the property would be available as a "potential waste site" which could be used by the contractor "if the contractor so desires." The appellant argues that the DOT/DOH cannot make the property at issue in this case a mandatory waste site, unless the DOT/DOH complies with the particularized supporting findings required by the provisions of Title 23 C.F.R. § 635.407(g),[8] which are not present in this case. The appellant then urges that by the DOT/DOH making it a potential waste site, as opposed to mandatory, it cannot satisfy the "public use" requirements of Syllabus Point 2 of Fork Ridge Baptist Cemetery Ass'n v. Redd, 33 W.Va. 262, 10 S.E. 405 (1889). In Redd the Court held: An application to condemn land for public use must distinctly state that the land is needed for public use, and will, when condemned, be devoted to such public use. We disagree with the appellant's contention in this regard. The 1889 Redd case involved an application of a cemetery association to condemn lands for its use for burial of the dead. The application was dismissed on demurrer and the dismissal was upheld for the failure of the applicant to clearly plead that the land was needed for public, as opposed to private, use in the burial of the dead. Since this case was decided in 1889, the Legislature has adopted statutes having specific application to the construction of roads and highways. Furthermore, this Court has adopted procedural rules relating to pleading which have historically been given liberal application. The Court spoke to the issue of the pleading in 239 Syllabus Point 6 of Professional Realty Company, supra, holding that: "A petition to condemn land for highway purposes is sufficient if it substantially conforms to the requirements of Code, 54-2-2."[9] In the instant case the DOT/DOH application to condemn CEI's land specifically states that the land of CEI is "necessary for the construction of said public road [Route 10]." We, therefore, believe that the allegations in the DOT petition are sufficient to satisfy the pleading requirements of Redd, supra, Professional Realty Company, supra, and W.Va. Code, 54-2-2. In conclusion, the DOH decision to condemn the property to serve as a waste material site was within the DOH's statutory authority and discretion. Furthermore, the appellant CEI failed to establish that the decision to condemn appellant's property was arbitrary, capricious, fraudulent or in bad faith. We consider all remaining arguments of the appellant to be without merit. III. Based on the foregoing, we conclude that the Department of Transportation acting through its Division of Highways has the discretion under West Virginia law to condemn land for potential use as material storage waste sites in connection with road construction projects. We further conclude that the decision to condemn land for such purpose will not be disturbed absent a clear showing that the decision to condemn was arbitrary, capricious, fraudulent or in bad faith. Therefore, based on the uncontroverted facts and the law as discussed, supra, the decision of the Circuit Court of Logan County is affirmed. Affirmed. Justice ALBRIGHT not participating. Senior Status Justice McHUGH, sitting by temporary assignment. Chief Justice MAYNARD dissents and reserves the right to file a dissenting opinion. Justice BENJAMIN dissents and reserves the right to file a dissenting opinion. MAYNARD, Chief Justice, dissenting. (Filed Dec. 16, 2008) This case required the Court to determine whether the West Virginia Department of Transportation, Division of Highways (hereinafter, the "DOH"), appropriately condemned property owned by the appellant, Contractor Enterprises, Inc. (hereinafter, "CEI"). The majority opinion concluded that the DOH's condemnation of CEI's land was proper. For the reasons outlined below, I believe that the majority of this Court has made a grave error in upholding the DOH's actions. Therefore, I dissent. The dangers of abusing government power to take private property cannot be overestimated or overstated. The power of eminent domain should only be used to take private 240 property when the taking is absolutely essential for a public purpose and when there are no reasonable alternatives to such a taking. In this case, the taking was not essential or even necessary and many other reasonable options clearly existed. This taking is even more disturbing when one realizes that the DOH condemned property it simply did not need, and did so in a way that has never been done in the history of this State. The record before us includes testimony from former Cabinet Secretary of the DOT and DOH Commissioner Fred VanKirk who stated clearly that the plans for this project failed to meet the requirements for condemning private property as interpreted by the DOH during his thirty-nine years with the agency. Mr. VanKirk said, During my tenure with the Department of Transportation, Division of Highways, either one, I don't recall the Highways Department ever condemning a site for waste or a piece of property for a waste site. Mr. VanKirk also explained that the supporting rationale for the practice and custom of not condemning property for waste sites involved both economic and liability considerations which justified placing responsibility for the waste sites on the contractor. Mr. VanKirk explained that during his tenure with the DOH, [w]e required the contractor to obtain the waste sites. There are economic reasons as well as liability issues involved with obtaining waste sites which we put that responsibility onto the contractor. .... Well, with regard to the permitting process, the Division of Highways put that responsibility onto the private contractor simply because one reason would be the liability issue. The holder of the permit is responsible for anything that happens to that site even after the construction project is over with. The other bigger reason or a reason for the policy was economics. Highway contractors are innovative. They're entrepreneurs. They can go out and they can find different waste sites. They can cut a deal, so to speak, if you want to use that language, with a property owner in a waste site. The Highway Department would have to go through an appraisal and purchasing process and hold title to that property after the project is over. With having the contractors do it, they can go out, they can lease it, they can buy it. They can work with the property owner to improve their property, and all of that boils down to economics in the bidding process to the Division of Highways. In this case, the record includes evidence that no fewer than six other suitable waste sites were available in the immediate vicinity of the DOH's proposed construction project. Among those who testified on behalf of CEI in the underlying proceedings were landowners whose properties were available for use as waste sites and even other contractors who were CEI's business competitors. The record below also demonstrates that CEI purchased this property for a use which was instrumental in running the daily operations of its businesses. Nevertheless, the State, for some mysterious reason, was apparently determined to take CEI's land without regard to any other available alternative sites. This Court previously explained in Major v. DeFrench, 169 W.Va. 241, 251, 286 S.E.2d 688, 694-695 (1982): The United States and West Virginia Constitutions guarantee that no person shall be deprived of life, liberty or property without due process of law. W.Va. Const. art. 3 § 10; U.S. Const. amend. XIV. It is fundamental to say that due process guarantees freedom from arbitrary treatment by the state. Thus whenever government action infringes upon a person's interest in life, liberty or property, due process requires the government to act within the bounds of procedures that are designed to insure that the government action is fair and based on reasonable standards. (Citation omitted.). It is very significant that the folks who drafted the above language included the word "property." They could have easily have said that no one can be deprived of life or liberty without due process of law and the constitution would still have been a wonderful document. But, the framers included "property." They obviously thought being 241 deprived of property was equally as reprehensible and odious as being deprived of life or liberty. Nevertheless, it is clear that our founding fathers were terrified of situations precisely like those that occurred in this case where due process was ignored. Moreover, due process simply has to mean more than the State paying some arbitrary or desultory price for land after forcibly taking it. Due process must at least stand for the principle that the taking of private property should occur only for a public purpose and then as a last resort, and only when there is no other reasonable alternative. I also must point out that this particular road project was a federal project. As such, I believe that the taking of CEI's land was in violation of controlling federal law which holds that highway construction contracts cannot specify mandatory waste sites absent very particularized supporting facts. Specifically, Title 23 C.F.R. § 635.407(g), provides that: The contract provisions for one or a combination of Federal-aid projects shall not specify a mandatory site for the disposal of surplus excavated materials unless there is a finding by the State transportation department with the concurrence of the FHWA Division Administrator that such placement is the most economical except that the designation of a mandatory site may be permitted based on environmental considerations, provided the environment would be enhanced without excessive costs. With the aforementioned in mind, it was clear that the DOH did not comply with federal regulations and acted in an arbitrary and capricious manner in taking CEI's property. In summary, the taking of CEI's land was not proper under the facts of this case. The taking was arbitrary and capricious as the record shows plainly that this particular site was not needed for this project as other suitable land was readily available to the State to use for a waste site. For these reasons, I believe this parcel of real estate should have been returned to CEI. Therefore, for the reasons stated above, I respectfully dissent. BENJAMIN, Justice, dissenting. (Filed Jan. 9, 2009) I dissent from the majority decision because the circuit court's decision to permit the taking of this property is arbitrary and capricious, and in contradiction with applicable federal rules and regulations. In the case sub judice, the original project plans did not refer to a waste site. All bids received for this project were originally rejected by DOH. At the time of the final hearing and judgment, no award had been made for this project. Testimony was taken during the proceedings that indicated that the pattern, practice, and custom on road construction projects generally and on this project in particular provided for the contractor to locate and to purchase or lease waste material sites. After rejecting all bids the DOH changed the project plans to state that CEI's property "would be provided for a potential waste site to be used if the contractor so desires."[1] It is a fundamental premise of eminent domain power that the property taken will be used for a public purpose. Our precedent requires that before the government may condemn a citizen's land, the taking must be deemed necessary to carry out a public purpose. F.R.B. Cemetery Association v. Redd, 33 W.Va. 262, 10 S.E. 405 (1889)("An application to condemn land for public use must distinctly state that the land is needed for public use, and will, when condemned, be devoted to such public use"). As a condition precedent to the exercise of eminent domain powers it must be established that the taking is for public use, that the taking is necessary to achieve that public use, that the use which the public is to have is fixed, definite, and direct, and that the use which the public must have is a substantially beneficial use. Gauley & S.R. Co. v. Vencill, 73 W.Va. 650, *242 80 S.E. 1103 (1914); State v. Professional Realty Co., 144 W.Va. 652, 110 S.E.2d 616 (1959); Charleston Natural Gas Co. v. Low, 52 W.Va. 662, 44 S.E. 410 (1901); see Vol. 7A Michie's Jurisprudence Eminent Domain §§ 16-22; Nichols on Eminent Domain (3d ed.) 62.07[3][c][ii]. Federal regulations prohibit the government from mandating a waste site in the absence of specific findings as to the needs and propriety of doing so. Title 23 C.F.R. § 635.407(g) specifically provides: The contract provisions for one or a combination of Federal-aid projects shall not specify a mandatory site for the disposal of surplus excavated materials unless there is a finding by the State transportation with the concurrence of the FHWA Division Administrator that such placement is the most economical except that the designation of a mandatory site may be permitted based on environmental considerations, provided the environment would be substantially enhanced without excessive cost. Title 23 C.F.R. § 635.407(g) (Emphasis added). Because the use of the waste site at issue was not, and according to federal regulation and could not be, mandatory, it was not necessary for a public purpose. Thus, it was not the proper subject of eminent domain proceedings. In assessing whether the taking was necessary for a public purpose, the circuit court should have considered this federal regulation. The Supremacy Clause of the U.S. Constitution, Article VI, requires that all courts in this State conform their decisions to governing applicable federal law. It provides, in part, that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . .shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . ." Any state law that is in conflict with federal law is nullified. Tipton v. Secretary of Educ. of United States, 768 F.Supp. 540 (S.D.W.Va. 1991); Jones v. Credit Bureau of Huntington, Inc., 184 W.Va. 112, 399 S.E.2d 694 (1990); DK Excavating, Inc. v. Miano, 209 W.Va. 406, 549 S.E.2d 280 (2001). The power of eminent domain is to be exercise with restraint, not abandon. Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 199 Ill.2d 225, 263 Ill.Dec. 241, 768 N.E.2d 1 (2002). Thus, when construction plans delineate that a particular property may or may not be used as a waste site, it is not certain that the property will in fact be used for a public purpose, and thus, a taking under eminent domain is inappropriate. The taking by DOT herein was both arbitrary and capricious and contrary to the law. I therefore agree with and join Chief Justice Maynard in dissenting to the majority opinion. NOTES [1] Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008 and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright. [2] The original tract of property from which the 31.96 acres at issue in this case is derived consisted of 79.08 acres. CEI paid $125,000.00 for the total acreage. [3] CEI's sister company, Heeter Construction Inc., had previously been awarded contracts for several sections of Route 10 in Logan County. [4] CEI expended $252,000.00 on improvements on the property before the DOT received its bids in May 2006. [5] According to the complaint filed in the underlying action, the Sheriff was joined "for any taxes that may be due or owing." [6] The DOT tendered to the circuit court the sum of $119,000.00 which was the DOT's estimated fair market value of the property interest to be taken by the condemnation proceeding. The compensation aspect of the condemnation proceeding has not been concluded. [7] The office of the state road commissioner was renamed West Virginia Commissioner of Highways in W.Va.Code, 17-17-2A-1 [2002]. [8] Under Federal law the DOT/DOH cannot specify mandatory waste sites: The contract provisions for one or a combination of Federal-aid projects shall not specify a mandatory site for the disposal of surplus excavated materials unless there is a finding by the State transportation department with the concurrence of the FHWA Division Administrator that such placement is the most economical except that the designation of a mandatory site may be permitted based on environmental considerations, provided the environment would be enhanced without excessive costs. Title 23 C.F.R. § 635.407(g). [9] 54-2-2. Pleadings; verification; parties. The pleadings shall be in writing and shall be verified. The petition shall describe with reasonable certainty the property proposed to be taken, and may embrace one or more parcels of land where the ownership is the same. If an estate less than a fee is proposed to be taken, the petition shall describe with reasonable certainty the particular estate less than the fee which it is proposed to take, the name of the owner or owners thereof, the manner and extent of their respective interests. If there are any liens upon or conflicting claims to such real estate, the petition shall state the nature and amount of such liens and claims and the names and places of residence of the persons who hold the same, so far as known to the petitioner. Where there are persons interested in the property proposed to be taken whose names are unknown to the applicant, or it is not known to the applicant whether there are any other persons interested in the property proposed to be taken, or there be any contingent or executory interest or estate in such property which is liable to vest in or to open and let in persons not in being, such fact shall be stated in the petition and such persons, if any, shall be made parties defendant to such petition by the general description of parties unknown. The joinder of any person having only a contingent or executory interest in the property proposed to be taken shall not be necessary when the person not joined is virtually represented by any other party or parties defendant; and where such virtual representation exists no order or decree made thereunder shall be deemed erroneous or void because of such nonjoinder. The petition shall also state the use to which the estate sought to be taken is intended to be appropriated. [1] Specifically, the modified construction plans provide that: "Right of way, Right of Station 361 + 00 is provided for a potential waste site to be used if the contractor so desires. All design associated with the waste site including drainage and erosion and sediment control shall be submitted to the Engineer for approval before using the waste site."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342504/	672 S.E.2d 150 (2008) In re: TAX ASSESSMENT OF FOSTER FOUNDATION'S WOODLANDS RETIREMENT COMMUNITY. No. 33891. Supreme Court of Appeals of West Virginia. Submitted: September 3, 2008. Decided: November 5, 2008. Dissenting Opinion of Justice Benjamin January 9, 2009. 153 Daniel J. Konrad, Chad D. Camper, Huddleston Bolen LLP, Huntington, for the Appellant. William T. Watson, Huntington, for the Appellee. DAVIS, Justice.[1] The appellant herein and petitioner below, the Foster Foundation (hereinafter "the Foundation"), appeals an order entered September 6, 2007, by the Circuit Court of Cabell County. In that order, the circuit court affirmed the decision of the appellee herein and respondent below, the Cabell County Commission (hereinafter "the County Commission" or "the Commission") sitting as the Board of Equalization and Review (hereinafter "the Board"), which had assigned an assessed value to the Foster Foundation's Woodlands Retirement Community (hereinafter "the Woodlands") of $29,759,000.00 for the 2007 tax year. On appeal to this Court, the Foundation contends that the procedure for challenging tax assessments and the burden of proof imposed upon taxpayers violate due process and that neither the Board nor the circuit court properly considered the unique nature of the Woodlands as a tax-exempt corporation in obtaining its assessed value. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we affirm the decision of the Cabell County Circuit Court. I. FACTUAL AND PROCEDURAL HISTORY The Foster Foundation is a § 501(c)(3)[2] non-profit organization that has been in existence since 1922.[3] Operated by the Foundation, the Woodlands Retirement Community is described by the Foundation as a "home for the aged not conducted for private profit." The Woodlands facilities accommodate approximately 300 residents and provide such housing in the form of independent living facilities, assisted living facilities, and nursing home facilities. All residents of the Woodlands are assured of continued housing for the remainder of their life at the Woodlands regardless of their ability to pay.[4]154 The Woodlands property is comprised of approximately 93 acres of real property and numerous buildings[5] with a combined square footage of roughly 331,993 square feet. The instant controversy began when the Foster Foundation received a letter dated January 2, 2007, from the Cabell County Assessor's Office notifying it of the assessed value for the Woodlands for the 2007 tax year in the amount of $38,137,300.00. On January 31, 2007, the Foundation filed an "Application for Review of Property Assessment" with the Cabell County Commission challenging the amount of this assessment; a hearing was set for February 9, 2007, before the Cabell County Commission sitting as the Board of Equalization and Review.[6] Prior to the February 9, 2007, hearing, the Assessor reduced the assessed value of the Woodlands to $31,190,000.00 because, as the Assessor claimed, a modifier had erroneously been applied to obtain the original assessed value for this property. At the Board's February 9, 2007, hearing, the Foster Foundation presented expert testimony by Robert K. Withers, a certified general real estate appraiser.[7] Mr. Withers provided a written appraisal report and testified that, in his opinion, the fair market value[8] of the Woodlands is $14,900,000.00. The Assessor provided evidence through the testimony of its employee, Brian Daniels, who is certified but not licensed[9] as a real estate appraiser. Mr. Daniels testified as to the methods he had employed in arriving at the assessed value and the properties he had considered as comparable to the Woodlands. Following the hearing, the Commission, sitting as the Board, by order entered February 22, 2007, further reduced the assessed value of the Woodlands to $29,759,000.00. The Foster Foundation then appealed the Commission's adverse ruling to the Circuit Court of Cabell County. The circuit court held a hearing, and, by order entered September 6, 2007, affirmed the Commission's decision, concluding that "the Plaintiff [Foster Foundation] failed to prove by clear and convincing evidence that the Assessor erroneously valued its property. Accordingly, the determination of value by the Assessor must stand[,] and the relief requested by the taxpayer must be denied." From the circuit court's adverse ruling, the Foster Foundation now appeals to this Court. II. STANDARD OF REVIEW In this case, the Foster Foundation requests this Court to review the circuit court's ruling adopting the Board's revised assessment of the value of the Foundation's Woodlands property and raises issues regarding the constitutionality of the taxpayer appeals process and questioning the correctness of the assessed value of its property. Generally, a multifaceted standard of review is applicable to decisions of a circuit court: "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review 155 challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). Accord Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997) ("In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review."). With respect to the questions of law raised by the Foundation concerning the constitutionality of the governing statutes, we employ a de novo standard of review: "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995). Accord Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.").[10] Finally, we utilize a plainly wrong standard to review the Foundation's assignment of error challenging the assessed value of its property: "`[a]n assessment made by a board of review and equalization and approved by the circuit court will not be reversed when supported by substantial evidence unless plainly wrong.' Syl. pt. 1, West Penn Power Co. v. Board of Review and Equalization, 112 W.Va. 442, 164 S.E. 862 (1932)." Syl. pt. 3, Western Pocahontas Properties, Ltd. v. County Comm'n of Wetzel County, 189 W.Va. 322, 431 S.E.2d 661 (1993). Syl. pt. 4, In re Petition of Maple Meadow Mining Co. for Relief from Real Prop. Assessment For the Tax Year 1992, 191 W.Va. 519, 446 S.E.2d 912 (1994). But see In re Tax Assessment Against Am. Bituminous Power Partners, L.P., 208 W.Va. 250, 255, 539 S.E.2d 757, 762 (2000) ("[J]udicial review of a decision of a board of equalization and review regarding a challenged tax-assessment valuation is limited to roughly the same scope permitted under the West Virginia Administrative Procedures Act, W. Va.Code. ch. 29A. In such circumstances, a circuit court is primarily discharging an appellate function little different from that undertaken by this Court; consequently, our review of a circuit court's ruling in proceedings under [W. Va. Code] § 11-3-25 is de novo." (footnote and citation omitted)).[11] In light of these standards, we proceed to consider the parties' arguments. III. DISCUSSION On appeal to this Court, the Foster Foundation assigns three errors to the circuit court's ruling: (1) the procedure for challenging tax assessments violates due process because the County Commission, sitting as the Board of Equalization and Review, is not impartial; (2) the burden of proof required of a taxpayer challenging a tax assessment violates due process; and (3) the Board and the circuit court both failed to consider the special status of the Woodlands as a § 501(c)(3) corporation in obtaining its assessed value. We will consider each of these alleged errors in turn. A. Impartiality of County Commission Sitting as Board of Equalization and Review The Foster Foundation first argues that the Cabell County Commission sitting as the Board of Equalization and Review is not an impartial tribunal, and thus, the Foundation was denied due process by having to 156 present its appeal of its ad valorem real property tax assessment to such body. Although the circuit court did not specifically decide this particular issue in rendering its final order, most probably because the Foundation did not assign error to this procedure during those proceedings,[12] we nevertheless may consider it for the first time on appeal to this Court insofar as it raises an issue of constitutionality that is central to our disposition of this case. See Syl. pt. 2, Louk v. Cormier, 218 W.Va. 81, 622 S.E.2d 788 (2005) ("A constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case."). In West Virginia, a taxpayer aggrieved by what he/she believes to be an erroneous tax assessment may file a protest with the assessor "for information regarding the classification and taxability of his[/her] property." W. Va.Code § 11-3-24a (1961) (Repl.Vol.2008). Then "[t]he assessor shall decide the question by either sustaining the protest and making proper corrections, or by stating, in writing if requested, the reasons for his refusal." Id. In the case sub judice, it is not apparent that the Foster Foundation applied to the Assessor for relief from its assessment of the Woodlands property, but the Assessor did review, correct, and reduce its initial assessment. Instead, the Foster Foundation pursued relief from the allegedly erroneous assessment by filing an application for review thereof with the County Commission, which is responsible for reviewing challenges regarding the amount of property tax assessments. The Legislature requires all county commissions to annually sit as a board of equalization and review "for the purpose of reviewing and equalizing the assessment made by the assessor." W. Va.Code § 11-3-24 (1979) (Repl.Vol.2008). It is this dual role of the Cabell County Commission in the instant case, as both the County Commission and the Board of Equalization and Review, to which the Foundation objects and upon which it bases its due process claim. The statute establishing this dual function of county commissions and describing the commissions's duties, W. Va.Code § 11-3-24, provides, in pertinent part: The county commission shall annually... meet for the purpose of reviewing and equalizing the assessment made by the assessor.... At the first meeting, the assessor shall submit the property books for the current year, which shall be complete in every particular, except that the levies shall not be extended. The assessor and his assistants shall attend and render every assistance possible in connection with the value of property assessed by them. The commission shall proceed to examine and review the personal property and the description and value of real estate liable to assessment which was omitted by the assessor. They shall correct all errors in the names of persons, in the description 157 and valuation of property, and they shall cause to be done whatever else may be necessary to make the valuation comply with the provisions of this chapter. But in no case shall any question of classification or taxability be considered or reviewed. If the commission determine[s] that any property or interest is assessed at more or less than its true and actual value, it shall fix it at the true and actual value.... The clerk of the county commission shall publish notice of the time, place and general purpose of the meeting as a Class II legal advertisement ... and the publication area for such publication shall be the county involved.... If any person fails to apply for relief at this meeting, he shall have waived his right to ask for correction in his assessment list for the current year, and shall not thereafter be permitted to question the correctness of his list as finally fixed by the county commission, except on appeal to the circuit court.... With respect to this statutory scheme, the Foster Foundation argues that the tribunal for hearing taxpayer appeals is not impartial and thus denies appealing taxpayers constitutionally guaranteed due process of law. See U.S. Const. amend. XIV, § 1 ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]"); W. Va. Const. art. III, § 10 ("No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers."). See also Syl. pt. 2, State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960) ("Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments."). In this regard, the Foundation suggests that because the County Commission, which is the beneficiary of the county's tax revenues and has a direct financial interest in tax appeals cases, also sits as the Board of Equalization of Review to hear and decide taxpayers' appeals challenging the assessed value of their property, it is not an impartial hearing tribunal. Such impartiality, claims the Foundation, constituted a denial of due process by depriving it of the opportunity to receive a fair hearing before a neutral and impartial body. See, e.g., Concrete Pipe & Prods. of California, Inc. v. Construction Laborers Pension Trust for S. California, 508 U.S. 602, 617, 113 S.Ct. 2264, 2277, 124 L.Ed.2d 539 (1993) ("[D]ue process requires a `neutral and detached judge in the first instance[.]'" (quoting Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 93 S.Ct. 80, 84, 34 L.Ed.2d 267 (1972))). In further support of its argument, the Foundation references the duty of county commissions to "supervise the general management of the fiscal affairs and business of each county." W. Va.Code § 7-1-5 (1980) (Repl.Vol.2006). See also W. Va. Const. art. IX, § 11 ("[C]ounty commissions ... shall ... have the superintendence and administration of the ... fiscal affairs of their counties[.]"). The Foundation argues that, because the County Commission is unquestionably interested in maximizing its revenue, through tax assessments and otherwise, taxpayers challenging tax assessments will not have a hearing by an impartial tribunal when the County Commission sits as the Board. See Rawl Sales & Processing Co. v. County Comm'n of Mingo County, 191 W.Va. 127, 133, 443 S.E.2d 595, 601 (1994) (Neely, J., dissenting) ("[T]he county commission lacks expertise in property evaluation but is extraordinarily knowledgeable about the government's need for money, an ingrained bias that is particularly harmful to non-voting entities."). The Commission responds that the appeals procedure does not create a conflict of interest and does not unconstitutionally deny appealing taxpayers due process of law. With regard to the tax year in issue in this case, 2007, the Commission asserts that, in Cabell County, over 27,000 pieces of property had increased assessment values; of those, only twenty-one property owners requested a hearing on their assessments, and all except one of those property owners either had their dispute resolved, did not appear for the hearing, or received a lower assessment. The Woodlands received a lower tax assessment. Although the Commission concedes that there might appear to be a conflict of interest, the pecuniary interest of the Commission in tax revenues is slight: for every one 158 dollar in ad valorem tax revenue, the County Commission receives sixteen cents while the Cabell County Board of Education receives sixty-seven cents. Thus, argues the Commission, it has no real incentive to artificially inflate tax assessments. The Commission finally contends that the Legislature has designated the County Commission to sit as the Board of Equalization and Review to hear tax appeals; if this practice is determined to be unconstitutional, the Commission suggests that chaos will result until the Legislature can appoint another, independent body. We must determine, then, whether W. Va. Code § 11-3-24 is constitutional insofar as it requires county commissions to sit as boards of equalization and review for the purpose of hearing and deciding appeals of taxpayers' property tax assessments. Our prior decisions have repeatedly counseled that statutes are presumed to be constitutional. "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syl. pt. 1, State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). Syl. pt. 1, Louk v. Cormier, 218 W.Va. 81, 622 S.E.2d 788. Thus, "`[w]hen the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.' Point 3, Syllabus, Willis v. O'Brien, 151 W.Va. 628[, 153 S.E.2d 178 (1967)]." Syllabus Point 1, State ex rel. Haden v. Calco Awning & Window Corp., 153 W.Va. 524, 170 S.E.2d 362 (1969). Syl. pt. 1, U.S. Steel Mining Co., LLC v. Helton, 219 W.Va. 1, 631 S.E.2d 559 (2005), cert. denied, 547 U.S. 1179, 126 S.Ct. 2355, 165 L.Ed.2d 279 (2006). With specific respect to legislative enactments pertaining to taxation, we have held that "[s]tatutes governing the imposition of taxes are generally construed against the government and in favor of the taxpayer. However, statutes establishing administrative procedures for collection and assessment of taxes will be construed in favor of the government." Syl. pt. 1, Calhoun County Assessor v. Consolidated Gas Supply Corp., 178 W.Va. 230, 358 S.E.2d 791 (1987) (emphasis added). Insofar as the challenged statute establishes the procedure that taxpayers must follow to contest their assessed taxes, W. Va.Code § 11-3-24 must be construed in favor of the government, represented here by the Commission. Nevertheless, the Foundation may overcome this presumption and establish that W. Va.Code § 11-3-24 is unconstitutional if it satisfies the burden of proof reiterated in Syllabus point 1 of Schmehl v. Helton, 222 W.Va. 98, 662 S.E.2d 697 (2008): "`To establish that a taxing statute, valid on its face, is so unreasonable or arbitrary as to amount to a denial of due process of law when applied in a particular case, the taxpayer must prove by clear and cogent[13] evidence facts establishing unreasonableness 159 or arbitrariness.' Point 4, Syllabus, Norfolk and Western Railway Company v. Field, 143 W.Va. 219[, 100 S.E.2d 796 (1957)]." Syllabus Point 2, State ex rel. Haden v. Calco Awning[ & Window Corp.], 153 W.Va. 524, 170 S.E.2d 362 (1969). (Footnote added). Here, however, the Foster Foundation does not argue that W. Va. Code § 11-3-24 is unconstitutional as applied; rather, the Foundation argues only that this statute is unconstitutional, which questions the statute's facial constitutionality. In this regard, the Foundation argues that W. Va.Code § 11-3-24 is unconstitutional because the County Commission, sitting as the Board of Equalization and Review, is an impartial tribunal to hear taxpayers' appeals insofar as the Commission is the entity responsible for administering the fiscal affairs of Cabell County and the tax revenue at issue provides the funding for such fiscal affairs. See W. Va. Const. art. IX, § 11 (establishing duty of county commissions over county's fiscal affairs); W. Va.Code § 7-1-5 (same). Although the Foundation makes this assertion, it does not offer specific proof of the Commission's, or the Commissioners', partiality. Rather, the Foundation contends generally that "[t]he County Commission has an impermissible conflict of interest in serving as both a decision maker on the Foster Foundation's appeal of an excessive tax assessment and a beneficiary of an increased tax revenue resulting from a higher assessed value of Woodlands" without providing factual support therefor. Appellant's Br. at p. 9. Before this Court, the Foundation similarly avers that [t]he County Commission's interest in maximizing revenue is at odds with granting reductions in the assessment values of real property (regardless of validity of claims) because it would directly result in a reduction of the tax base. For example, the Foster Foundation believes its assessment was excessive by approximately $14,859,000. Had the Foster Foundation been successful before the County Commission, the County's tax base would have been reduced by approximately $200,000 annually. In every contested valuation there is an inherent conflict between the County Commission's inconsistent roles as the overseer of the county finances and as the tribunal for hearing individual tax appeals. This conflict is magnified as the amount in controversy increases. Appellant's Br. at pp. 9-10. In making these assertions, though, the Foundation does not present any specific evidence to suggest how the county commissioners, themselves, directly benefitted from these funds or to indicate the commissioners had a direct, pecuniary interest in such revenue. In fact, the applicable statutory law establishes that county commissioners' salaries are set by the Legislature, not by the commissioners, themselves. See W. Va.Code § 7-1-5 (discussing compensation of county commissioners); W. Va.Code § 7-7-4 (2006) (Repl.Vol.2006) (defining amount of compensation of county commissioners). W. Va.Code § 11-3-24 sets forth the procedure by which a county commission sits as a board of equalization and review to finalize the assessments rendered by the county assessor, discusses how those assessments are to be reviewed, and permits aggrieved taxpayers to apply for relief from such assessments. Insofar as we have not previously determined the constitutionality of such a review process, it is instructive to look to decisions of other jurisdictions for guidance. When faced with cases questioning the impartiality of a hearing tribunal, the United States Supreme Court generally has found a hearing tribunal to be partial when there exists a direct pecuniary interest in the outcome of the litigation. See Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927) (finding mayor serving as judge was not impartial decision maker where mayor received additional compensation from fees and costs he levied against violators of 160 prohibition laws, citing mayor's "direct, personal, substantial pecuniary interest" in generation of such revenue). See also Concerned Citizens of S. Ohio, Inc. v. Pine Creek Conservancy Dist., 429 U.S. 651, 652, 97 S.Ct. 828, 829, 51 L.Ed.2d 116 (1977) (per curiam) (remanding case for full consideration of issues, including plaintiffs' claim that conservancy court did not provide "hearing before ... impartial judicial officer" where judges of conservancy court decided whether conservancy districts should be formed and such judges received special compensation for work performed in conjunction with such conservancy courts); Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973) (reiterating that "[i]t is sufficiently clear from our cases that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes" (citation omitted)); Ward v. Village of Monroeville, 409 U.S. 57, 58, 93 S.Ct. 80, 82, 34 L.Ed.2d 267 (1972) (determining that mayor, sitting as judge over traffic offenses and imposing fines therefor, was not impartial where mayor also was responsible for accounting for village revenues which were derived, in large part, from "fines, forfeitures, costs and fees imposed by him in his mayor's court"). However, when no such pecuniary interest is present, the United States Supreme Court typically has found the tribunal to satisfy the requirements of due process. See Dugan v. Ohio, 277 U.S. 61, 65, 48 S.Ct. 439, 440, 72 L.Ed. 784 (1928) (ruling that mayor serving as judge had relationship too remote with city finances to warrant presumption of bias in prohibition law cases over which he presided and imposed fines where mayor received fixed salary, did not receive additional compensation from fines he imposed as judge, and was not solely responsible for expenditure of town's revenue). Cf. Concrete Pipe & Prods. of California, Inc. v. Construction Laborers Pension Trust for S. California, 508 U.S. at 618-20, 113 S.Ct. at 2277-78, 124 L.Ed.2d 539 (declining to find denial of due process where "initial determination [wa]s made by a party acting in an enforcement capacity" and losing party was thereafter entitled to subsequent adjudicatory proceeding before arbitrator). While the Foundation makes broad assertions of a pecuniary conflict of interest in the case sub judice, the Foundation has not proved the Cabell County Commissioners' partiality or that their dual role as members of the Board of Equalization and Review was compromised by this alleged divided loyalty. There is no indication in the facts of the case presently before us that any of the Cabell County Commissioners received additional compensation for upholding the Assessor's tax assessments or that the County Commission, itself, benefitted from this revenue. Thus, having reviewed the statute at issue herein and the parties' arguments regarding its constitutionality, we conclude that W. Va.Code § 11-3-24 is valid on its face. Accordingly, we hold that W. Va.Code § 11-3-24 (1979) (Repl.Vol.2008), which establishes the procedure by which a county commission sits as a board of equalization and review and decides taxpayers' challenges to their property tax assessments, is facially constitutional. Therefore, because the Foundation has not presented evidence to prove that it was denied due process when the Commission sat as the Board of Equalization and Review to hear and decide its appeal of the Woodlands property's tax assessment, the Foundation has not sustained its burden of proving that W. Va.Code § 11-3-24 is unconstitutional. B. Taxpayer's Burden of Proof The Foster Foundation next argues that the burden of proof imposed upon the taxpayer challenging the correctness of an assessment, i.e., by clear and convincing proof, denies taxpayers due process because no corresponding burden is placed upon the Assessor.[14] Although the Foundation assigned error to this issue in the proceedings before 161 the circuit court,[15] the court did not specifically rule upon the constitutionality of the clear and convincing burden of proof imposed upon taxpayers appealing allegedly erroneous tax assessments. Nevertheless, the circuit court implicitly found this burden of proof to be constitutional by ruling that the Foundation "failed to prove by clear and convincing evidence that the Assessor erroneously valued its property." While much of the law governing the Foundation's appeal is grounded in statutes, the burden of proof imposed upon the appealing taxpayer has not been established by the Legislature and thus has been defined by this Court. However, from the cases cited by the circuit court in its final order, it is apparent that a conflict of authority has been created by our prior inconsistent decisions: we have held both that the aggrieved taxpayer must prove his/her claim for relief by clear and convincing evidence[16] and that the taxpayer must satisfy a preponderance of the evidence burden of proof.[17] These two burdens of proof differ vastly, and, before we can consider the constitutionality of the burden of proof imposed upon taxpayers, and the parties' arguments with regard thereto, we first must reconcile our prior decisions to define the applicable burden of proof. We consistently have held that an assessor's valuation of property for purposes of taxation is presumed to be correct. See, e.g., Syl. pt. 2, in part, Western Pocahontas Props., Ltd. v. County Comm'n of Wetzel County, 189 W.Va. 322, 431 S.E.2d 661 (1993) ("As a general rule, there is a presumption that valuations for taxation purposes fixed by an assessor are correct."); Syl. pt. 7, in part, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983) ("It is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct."). Accord Bankers Pocahontas Coal Co. v. County Court of McDowell County, 135 W.Va. 174, 179, 62 S.E.2d 801, 804 (1950) ("It is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct."), overruled on other grounds by In re the Assessment of Shares of Stock of the Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959); In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. at 61, 303 S.E.2d at 699 (same). To overcome this presumption, we repeatedly have held further that a taxpayer challenging an assessor's tax assessment before a board of equalization and review must present clear and convincing evidence to demonstrate that the assessor's assessment is erroneous. This standard has been reiterated numerous times by this Court: "Arbitrary or unjust action by an assessor in fixing the value of land must be shown by clear and cogent proof in order that the complaining taxpayer may be given relief from allegedly excessive valuation." Syl. pt. 2, Bankers Pocahontas Coal Co. v. County Court of McDowell County, 135 W.Va. 174, 62 S.E.2d 801. Accord Syl. pt. 2, in part, Western Pocahontas Props., Ltd. v. County Comm'n of Wetzel County, 189 W.Va. 322, 431 S.E.2d 661 ("As a general rule, there is a presumption that valuations for taxation purposes fixed by an assessor are correct.... The burden is on the taxpayer challenging the assessment to demonstrate by clear and convincing evidence that the tax assessment is erroneous." (emphasis added)); Syl. pt. 7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 ("It is a general rule that valuations for taxation purposes 162 fixed by an assessing officer are presumed to be correct. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear." (emphasis added)). See also In re Tax Assessment Against Am. Bituminous Power Partners, 208 W.Va. 250, 539 S.E.2d 757 ("A taxpayer's initial avenue for relief from an allegedly erroneous property valuation lies with the county commission, sitting as a board of equalization and review. The burden upon the taxpayer to demonstrate error with respect to the State's valuation is heavy in these adjudicative proceedings: It is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear." (emphasis added) (citations omitted)); In re Nat'l Bank of West Virginia at Wheeling, 137 W.Va. 673, 687, 73 S.E.2d 655, 664 (1952) ("The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear." (emphasis added) (citations omitted)), overruled on other grounds by In re the Assessment of Shares of Stock of the Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959); Norfolk & W. Ry. Co. v. Board of Pub. Works, 124 W.Va. 562, 570, 21 S.E.2d 143, 147 (1942) ("In order for the courts ... to reverse or to interfere with the exercise of the taxing power, there must be a clear showing of the arbitrary abuse of that power ...." (emphasis added)). Nevertheless, in the case of Killen v. Logan County Commission, 170 W.Va. 602, 295 S.E.2d 689 (1982), this Court determined that a taxpayer was required to satisfy only a preponderance of the evidence burden of proof in its challenge of the assessor's assessment. In this regard, we held, in Syllabus point 8, that [a]n objection to any assessment may be sustained only upon the presentation of competent evidence, such as that equivalent to testimony of qualified appraisers, that the property has been under- or over-valued by the tax commissioner and wrongly assessed by the assessor. The objecting party, whether it be the taxpayer, the tax commissioner or another third party, must show by a preponderance of the evidence that the assessment is incorrect. (Emphasis added). The Killen case, however, appears to be an isolated instance[18] of employing the preponderance of the evidence standard in tax assessment cases and is an aberration in this Court's line of cases on this subject.[19] The discussion in the Killen opinion 163 adopting this standard does not cite any authority for this departure from the Court's previous holdings, and does not expressly overrule or modify such prior opinions. The very next year, this Court returned to the clear and convincing burden of proof in the case of In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983), by again adopting this standard in a syllabus point: "It is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear." Syl. pt. 7, id. (emphasis added). The clear and convincing burden of proof subsequently was reiterated in Syllabus point 2 of Western Pocahontas Properties, Ltd. v. County Commission of Wetzel County, 189 W.Va. 322, 431 S.E.2d 661 (1993): "As a general rule, there is a presumption that valuations for taxation purposes fixed by an assessor are correct.... The burden is on the taxpayer challenging the assessment to demonstrate by clear and convincing evidence that the tax assessment is erroneous." (Emphasis added). Therefore, it is apparent from this survey of our prior decisions that the prevailing burden of proof to be borne by a taxpayer appealing his/her tax assessment is the clear and convincing burden of proof. Accordingly, in order to rectify the conflict created by our contrary opinions, we hold that a taxpayer challenging an assessor's tax assessment must prove by clear and convincing evidence that such tax assessment is erroneous. To the extent our prior decisions in Killen v. Logan County Commission, 170 W.Va. 602, 295 S.E.2d 689 (1982), and Eastern American Energy Corp. v. Thorn, 189 W.Va. 75, 428 S.E.2d 56 (1993) (per curiam), are inconsistent with this holding, they are expressly overruled.[20] 164 Having determined the burden of proof applicable to the Foundation's appeal of the Woodlands' tax assessment, we return now to the parties' arguments regarding the constitutionality thereof. The Foundation contends that the burden of proof of a taxpayer in a case challenging a tax assessment is unconstitutional and violative of due process because neither the Assessor nor the County Commission have a correspondingly heavy burden of proof. In this regard, the Foundation states that the Assessor's initial assessment was presumed to be correct and that it was required to prove that the Assessor's initial assessment was incorrect by clear and convincing evidence. To meet this standard, the County Commission notified the Foundation as to the evidence required, by letter dated January 24, 2007, as follows: "Please be advised it will be necessary for you to present `Clear and convincing evidence', which by definition means 'formal appraisals and/or expert testimony by qualified people', to prove that the assessment is in fact erroneous."[21] (Emphasis in original). Thus, the Foundation claims that it was required to employ a certified real estate appraiser and to submit his formal report and testimony. By contrast, the Assessor was not required to submit any specific evidence, is not required to be licensed,[22] and submitted only oral testimony during the Board's hearing. Furthermore, the Foundation contends that, during the circuit court proceedings, the County Commission did not provide any evidence to support its assessment. This disparity in the evidence required of each party, asserts the Foundation, denied it of due process. The County Commission replies that this Court has previously placed the burden on complaining taxpayers to demonstrate that their assessments are incorrect by clear and convincing evidence. Citing In Re: Tax Assessment Against Am. Bituminous Power Partners, L.P., 208 W.Va. 250, 539 S.E.2d 757. The Commission explains that it advised taxpayers of the types of evidence they 165 would be required to submit to prevent them from simply complaining that the tax assessments were too high without any other proof. The Commission concludes its argument by stating that other decisions of this Court have held that the Assessor's valuations are presumed to be correct and will not be overturned absent an abuse of discretion. Citing Western Pocahontas Props., Ltd. v. County Comm'n of Wetzel County, 189 W.Va. 322, 431 S.E.2d 661; In Re: Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691; Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689. On this point, the Foundation complains that the clear and convincing burden of proof it is required to sustain is unconstitutional. However, the Foundation's argument also challenges its corresponding burden of persuasion insofar as it complains that neither the Assessor nor the Commission was required to present evidence of a specific type to prove the correctness of their assessments. Requiring the party bringing a claim for relief to bear the burden of persuasion, however, is consistent with our jurisprudence. "It is a well-established rule of law that in civil actions the party seeking relief must prove his right thereto[.]" Boury v. Hamm, 156 W.Va. 44, 52, 190 S.E.2d 13, 18 (1972). Therefore, when a plaintiff comes into court in a civil action he must, to justify a verdict in his favor, establish his case .... The burden of proof, meaning the duty to establish the truth of the claim ..., rests upon him from the beginning, and does not shift, as does the duty of presenting all the evidence bearing on the issue as the case progresses. Burk v. Huntington Dev. & Gas Co., 133 W.Va. 817, 830, 58 S.E.2d 574, 581 (1950), modified on other grounds, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997). Moreover, [a]s a general matter, the burden of proof consists of two components: burden of production and burden of persuasion. The burden of persuasion requires the party upon whom it is placed, to convince the trier of fact ... on a given issue. When a party has the burden of persuasion on an issue, that burden does not shift. The burden of production merely requires a party to present some evidence to rebut evidence proffered by the party having the burden of persuasion. The term burden of production is also used to refer to either party presenting some evidence on a matter. Mayhew v. Mayhew, 205 W.Va. 490, 497 n. 15, 519 S.E.2d 188, 195 n. 15 (1999) (citations omitted). Cf. id., 205 W.Va. at 498 n. 18, 519 S.E.2d at 196 n. 18 ("As a general matter, our cases have permitted the burden of persuasion to shift to the defendant when the defendant alleges an affirmative defense." (citations omitted)). Thus, as the party seeking relief from the allegedly erroneous tax assessment, the Foundation bears the burden of proving its entitlement to relief. See Boury, 156 W.Va. at 52, 190 S.E.2d at 18. To sustain this burden, the Foundation must present clear and convincing evidence. The burden of persuasion rests with the Foundation to prove that its tax assessment was erroneous; it does not lie with the Assessor or the Commission nor does it shift thereto. Therefore, we must determine whether it is constitutional to require an aggrieved taxpayer to prove his/her claim for relief from an erroneous tax assessment by clear and convincing evidence. When requested to review constitutional challenges to the burden of proof applicable in a given case, the United States Supreme Court has reminded parties that "[i]n every case the onus probandi lies on the party who wishes to support his case by a particular fact which lies more peculiarly within his knowledge, or of which he is supposed to be cognizant." Concrete Pipe, 508 U.S. at 626, 113 S.Ct. at 2281, 124 L.Ed.2d 539 (internal quotations and citations omitted). Consequently, the Court has admonished that, "[o]utside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment." Lavine v. Milne, 424 U.S. 577, 585, 96 S.Ct. 1010, 1016, 47 L.Ed.2d 249 (1976) (footnote omitted). That said, the constitutional issue before us is one we have not yet decided. Despite the reluctance of the high Court to decide such matters, we nevertheless will consider the 166 merits of the parties' arguments insofar as this question is a "controlling issue in the resolution of the case." Syl. pt. 2, in part, Louk v. Cormier, 218 W.Va. 81, 622 S.E.2d 788. Absent our own prior precedent to guide our determination of this issue, we will look to decisions from other jurisdictions. Only three jurisdictions-Illinois, Michigan, and the United States Court of Appeals for the Ninth Circuit have addressed the constitutionality of a taxpayer's burden of proof in tax assessment cases. Of those courts' decisions, only one involves an assessment of taxes on real property, such as those which are at issue in the case sub judice. See LaGrange State Bank No. 1713 v. DuPage County Bd. of Review, 79 Ill.App.3d 474, 398 N.E.2d 992, 35 Ill.Dec. 42 (1979). In LaGrange, the taxpayer was required to satisfy a clear and convincing burden of proof in challenging its real property tax assessment. The court reviewed numerous evidentiary errors raised by the taxpayer, including the lower tribunal's admission of inadmissible hearsay evidence and the consideration of ex parte evidence, and concluded that the taxpayer had not been denied due process. Id., 79 Ill.App.3d at 481-82, 398 N.E.2d at 998-99, 35 Ill.Dec. at 48-49. Although the court did not specifically find the clear and convincing burden of proof to be constitutional, many of the evidentiary errors raised by the taxpayer therein and decided by the court mirror the arguments voiced by the Foster Foundation in support of its position that the clear and convincing burden of proof is unconstitutional. In more general terms, two other courts have concluded that placing the burden of proof on the taxpayer is not violative of constitutional protections. The case of Wilcox v. Commissioner of Internal Revenue, 848 F.2d 1007 (9th Cir.1988), involved a deficiency in the taxpayer's federal income tax. In Wilcox, the court, without specifying the burden of proof the taxpayer was required to satisfy, stated that "placing the burden of proof on the taxpayer does not violate due process." Id. at 1008 (citation omitted). The other case involving the constitutionality of a taxpayer's burden of proof is City of Troy v. Cleveland Pneumatic Tool Co., 109 Mich.App. 361, 311 N.W.2d 782 (1981). Like Wilcox, Cleveland Pneumatic, which also involved an assessment levied on the taxpayer's personal property, did not identify the applicable burden of proof. Rather, in clarifying a statute concerning the allocation of the burden of proof in tax appeals cases, the court observed that recent legislative amendments require the appealing party, be it the taxpayer or the taxing authority, to shoulder the burden of proof on appeal. The court ultimately concluded that shifting the burden of proof to the appealing party is constitutional so long as the party who bears the burden of proof has adequate notice of such responsibility. Id., 109 Mich.App. at 371, 311 N.W.2d at 787. From these authorities, it is apparent that there is no constitutional infirmity to requiring a taxpayer to bear the burden of proof when challenging a tax assessment. However, having gleaned little guidance as to the constitutionality of the clear and convincing burden of proof from these other jurisdictions, we must look to analogous decisions and bodies of law for further counsel. In this Court's jurisprudence, we have repeatedly applied and upheld the clear and convincing burden of proof in a variety of contexts. See, e.g., Syl. pt. 7, in part, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008) (requiring, at hearing on petition for infant guardianship based upon allegations of child abuse and neglect, "allegations of child abuse and neglect must be proven by clear and convincing evidence" (emphasis added)); Syl. pt. 3, in part, Schmehl v. Helton, 222 W.Va. 98, 662 S.E.2d 697 ("The burden is on the person seeking to avoid ... [personal] liability [for unpaid and unremitted sales taxes] to show with clear and convincing evidence, giving due deference to the statute's general authorization for the imposition of such liability, that it would be fundamentally unfair and an arbitrary and capricious or unreasonable act to impose such liability." (emphasis added)); Syl. pt. 5, Smith v. Smith, 219 W.Va. 619, 639 S.E.2d 711 (2006) ("To justify the reformation of a clear and unambiguous deed for mistake, the mistake must be one of fact, not of law; the mistake must be mutual and common to both 167 parties to the deed; the unambiguous deed must fail to express the obvious intention of the parties; and the mutual mistake must be proved by strong, clear and convincing evidence." (emphasis added)); McConaha v. Rust, 219 W.Va. 112, 119, 632 S.E.2d 52, 59 (2006) (noting that party seeking to challenge settlement agreement reached in partition proceeding "must allege and prove by clear and convincing evidence that an accident, mistake or fraud occurred" (emphasis added) (citation omitted)); Syl. pt. 2, in part, State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548 (1996) ("Plaintiffs who are public officials or public figures must prove by clear and convincing evidence that the defendants made their defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not." (emphasis added)); Syl. pt. 1, in part, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995) ("Rule 3.7 of the Rules of Lawyer Disciplinary Procedure... requires the Office of Disciplinary Counsel to prove the allegations of the formal charge [of lawyer misconduct] by clear and convincing evidence." (emphasis added)); Syl. pt. 3, in part, Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va. 585, 396 S.E.2d 766 (1990) ("It will be the insurer's burden to prove by clear and convincing evidence that it attempted in good faith to negotiate a settlement[.]" (emphasis added)); Syl. pt. 3, in part, Everett v. Brown, 174 W.Va. 35, 321 S.E.2d 685 (1984) (holding that when suit is brought to enforce promise, court should consider "the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence" (emphasis added)); Syl. pt. 1, in part, In the Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981) ("W. Va.Code, 49-6-2(c) [1980], requires the State Department of Welfare [now the Department of Health and Human Resources], in a child abuse or neglect case, to prove `conditions existing at the time of the filing of the petition ... by clear and convincing proof.'" (emphasis added)); Syl. pt. 1, Berkeley Dev. Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976) ("The burden of proving an easement rests upon the party claiming such right and must be established by clear and convincing proof." (emphasis added)); Syl. pt. 7, in part, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932) ("The question as to whether or not a juror has been subjected to improper influence affecting the verdict, is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial[.]" (emphasis added)). We also have determined that it is proper to place the burden of proof on the plaintiff to prove his/her entitlement to relief. Perhaps most analogous to the taxpayer's burden of proof in the case sub judice is the burden of proof borne by a plaintiff in a case brought pursuant to the West Virginia Medical Professional Liability Act (hereinafter "the MPLA"), W. Va.Code § 55-7B-1, et seq. Under the MPLA, a court may require a plaintiff to provide evidence through expert testimony in support of his/her claim for relief. See W. Va.Code § 55-7B-7(a) (2003) (Supp.2008) ("The applicable standard of care and a defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court[.]"). See also Syl. pt. 5, in part, Estate of Fout-Iser ex rel. Fout-Iser v. Hahn, 220 W.Va. 673, 649 S.E.2d 246 (2007) ("When a particular defendant's failure to meet the standard of care is at issue in medical malpractice cases, the sufficiency and nature of proof required is governed by West Virginia Code § 55-7B-7(a) (2003)[.]"); Syl. pt. 8, in part, McGraw v. St. Joseph's Hosp., 200 W.Va. 114, 488 S.E.2d 389 (1997) ("A trial court is vested with discretion under W. Va.Code § 55-7B-7 (1986) to require expert testimony in medical professional liability cases[.]"). This Court has upheld this rather onerous burden because plaintiffs in medical malpractice cases bear the burden of proving their claims. See, e.g., Syl. pt. 4, Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967) ("In an action for damages against a physician for negligence or want of skill in the treatment of an injury or disease, the burden 168 is on the plaintiff to prove such negligence or want of skill and that it resulted in injury to the plaintiff."); Syl. pt. 1, Schroeder v. Adkins, 149 W.Va. 400, 141 S.E.2d 352 (1965) ("In an action for damages against a chiropodist, for negligence and want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill and that it results in injury to the plaintiff."); Syl. pt. 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964) ("It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses."); Syl. pt. 2, White v. Moore, 134 W.Va. 806, 62 S.E.2d 122 (1950) ("In an action for damages against a physician, for negligence and want of professional skill in the making of an examination, or in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill, resulting in injury to the plaintiff."); Syl. pt. 2, Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906) ("In an action for damages against a physician, for negligence and want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill, resulting in injury to the plaintiff."), overruled on other grounds by Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000). Requiring plaintiffs in medical malpractice cases to bear the burden of proof is derived from our more general negligence jurisprudence placing the burden of proof on plaintiffs to prove their claims of negligence. See, e.g., Syl. pt. 3, Keister v. Talbott, 182 W.Va. 745, 391 S.E.2d 895 (1990) ("Damages arising from the negligence of an attorney are not presumed, and a plaintiff in a malpractice action has the burden of proving both his loss and its causal connection to the attorney's negligence."); Syl. pt. 2, Walton v. Given, 158 W.Va. 897, 215 S.E.2d 647 (1975) ("The burden is on the plaintiff to prove by a preponderance of the evidence that the defendant was negligent and that such negligence was the proximate cause of the injury."); Syl. pt. 2, Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d 738 (1966) ("The burden is on the plaintiff to establish a prima facie case of negligence against the defendant in order to warrant jury consideration but such showing may be made by circumstantial as well as direct evidence."). Cf. Syl. pt. 6, Leftwich v. Wesco Corp., 146 W.Va. 196, 119 S.E.2d 401 (1961) ("Contributory negligence on the part of the plaintiff is an affirmative defense. There is a presumption of ordinary care in favor of the plaintiff, and where the defendant relies upon contributory negligence, the burden of proof rests upon the defendant to show such negligence unless it is disclosed by the plaintiff's evidence or may be fairly inferred by all of the evidence and circumstances surrounding the case."), overruled on other grounds by Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979). This placement of the burden of proof also is consistent with the United States Supreme Court's recognition that "[i]n every case the onus probandi lies on the party who wishes to support his case by a particular fact which lies more peculiarly within his knowledge, or of which he is supposed to be cognizant." Concrete Pipe, 508 U.S. at 626, 113 S.Ct. at 2281, 124 L.Ed.2d 539 (internal quotations and citations omitted). Here, the Commission required the Foundation to present "`[c]lear and convincing evidence', which by definition means `formal appraisals and/or expert testimony by qualified people', to prove that the assessment is in fact erroneous." (Emphasis omitted). Although the provisions of W. Va.Code § 11-3-24 do not specify the precise type of evidence a taxpayer must present to meet its clear and convincing burden, this Court, in Killen, suggested the type of evidence required to rebut the presumption of the correctness of the assessor's assessment: [a]n objection to any assessment may be sustained only upon the presentation of competent evidence, such as that equivalent to testimony of qualified appraisers, that the property has been under- or over-valued by the tax commissioner and wrongly assessed by the assessor. Syl. pt. 8, in part, Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689 (emphasis added). The Foundation does not claim that it did not have notice of its burden of proof or of the specific type of evidence 169 required to satisfy this burden; rather, the Foundation argues simply that the clear and convincing burden of proof is unfair. It is not unreasonable or unfair, however, to require the party claiming to have superior knowledge of the value of its own property to shoulder the burden of presenting such evidence to the decision maker. See Concrete Pipe, 508 U.S. at 626, 113 S.Ct. at 2281, 124 L.Ed.2d 539. Neither is it a denial of due process to impose more stringent standards upon a complaining taxpayer in an attempt to prevent frivolous tax assessment challenges. See, e.g., Syl. pt. 6, in part, Hinchman v. Gillette, 217 W.Va. 378, 618 S.E.2d 387 (2005) (upholding pre-suit requirements of MPLA in recognition of statutory purpose of "preventing the making and filing of frivolous medical malpractice claims and lawsuits"). Accordingly, we hold that requiring a taxpayer challenging a property tax assessment in accordance with W. Va.Code § 11-3-24 (1979) (Repl.Vol.2008) to prove by clear and convincing evidence that the assessor's assessment is erroneous does not violate the constitutional due process protections provided by section one of the Fourteenth Amendment to the United States Constitution or by section ten of Article III of the West Virginia Constitution. Applying this holding to the case sub judice, the circuit court did not err by requiring the Foundation to prove by clear and convincing evidence that the Assessor's tax assessment of the Woodlands property was erroneous, and the imposition of this burden of proof did not deprive the Foundation of due process. C. Woodlands' Tax Assessment in Light of § 501(c)(3) Status Having determined that there are no constitutional infirmities with the hearing tribunal in which a taxpayer must pursue his/her challenge of a property tax assessment or with the burden of proof by which a taxpayer must prove his/her claim for relief, we now reach the Foundation's final assignment of error contesting the assessed value of its property. Specifically, the Foundation argues that its status as a § 501(c)(3) corporation[23] was not given sufficient consideration in the valuation of its Woodlands property, and, thus, the resulting assessment was erroneous. In its order disposing of the Foundation's appeal, the circuit court acknowledged the Foundation's § 501(c)(3) status, but did not specifically refer to it in its consideration or decision of the case, ruling simply that "the Plaintiff [the Foundation] failed to prove by clear and convincing evidence that the Assessor erroneously valued its property." Before reaching the merits of the parties' arguments, it is instructive to our decision of this issue to briefly review the manner by which property is assessed for taxation purposes. Tax assessments of property are required to be proportionate to the property's value: "[A]ll property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law." W. Va. Const. art. X, § 1. W. Va.Code § 11-3-1 (1977) (Repl.Vol.2008) further instructs that "[a]ll property shall be assessed annually ... at its true and actual value." We have interpreted the term "value" with respect to tax assessments as meaning "`worth in money' of a piece of property-its market value." Syl. pt. 3, in part, Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689. Furthermore, we have held that "[t]he price paid for property in an arm's length transaction, while not conclusive, is relevant evidence of its true and actual value." Syl. pt. 2, in part, Kline v. McCloud, 174 W.Va. 369, 326 S.E.2d 715 (1984). Once an assessor has made an assessment, the valuation placed upon the property by the assessor is accorded great deference and is presumed to be correct. "As a general rule, there is a presumption that valuations for taxation purposes fixed by an assessor are correct.... The burden is on the taxpayer challenging the assessment to demonstrate by clear and convincing evidence that the tax assessment is erroneous." Syl. pt. 2, in part, Western Pocahontas Props., Ltd. v. County Comm'n of Wetzel County, 189 W.Va. 322, 431 S.E.2d 661. Accord Syl. pt. 7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 ("It is a general rule that valuations for taxation purposes fixed by an 170 assessing officer are presumed to be correct. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear."). Cf. Syl. pt. 2, In re Tax Assessments Against the S. Land Co., 143 W.Va. 152, 100 S.E.2d 555 (1957) ("In a case involving the assessment of property for taxation purposes, which does not involve the violation of a statute governing the assessment of property, or a violation of a constitutional provision, or in which a question of the constitutionality of a statute is not involved, this Court will not set aside or disturb an assessment made by an assessor or the county court, acting as a board of equalization and review, where the assessment is supported by substantial evidence."), overruled on other grounds by In re the Assessment of Shares of Stock of the Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959). On appeal to this Court, the Foster Foundation seeks to overcome this presumption of the correctness of the assessment of its Woodlands property. During the proceedings below, the Assessor first valued the Woodlands property at $38,137,300.00. The Assessor then corrected that valuation and issued a new assessment valuing the Woodlands at $31,190,000.00. Following proceedings before the Board, the assessment was reduced again to $29,759,000.00. Nevertheless, the Foundation claims that the property's actual value is only $14,900,000.00. In support of this figure, the Foster Foundation argues that neither the Board nor the circuit court properly considered the Woodlands' status as a § 501(c)(3) nonprofit corporation, and, as a result, the assessed value was incorrect.[24] The Foundation explains that, because the Woodlands provides lifetime care for its residents regardless of their ability to pay,[25] any potential purchaser of the Woodlands would likewise be obligated to provide such lifetime care for the Woodlands' current 300 residents. Given this potentially substantial burden, the Foundation contends that the Woodlands property is much less appealing than if it did not have this obligation. Thus, the Foundation argues that the various assessments of the Woodlands property[26] have not properly accounted for the diminished value of the Woodlands in light of such restriction. The Foundation additionally argues that, as a not-for-profit entity, the Woodlands has constructed improvements to its facility without regard as to whether it could recoup the cost thereof upon the sale of its property; however, argues the Foundation, this factor was not considered in arriving at the Woodlands' assessed value. Finally, during the oral presentation of this case, the Foundation suggested additionally that, because the Woodlands is obligated to provide lifetime care for its residents regardless of their ability to pay, the residents essentially hold "life estates"[27] in their Woodlands residences. The County Commission disputes the Foundation's assertions that the status of the Woodlands as a § 501(c)(3) entity and its obligation to provide lifelong care for its residents negatively affect the property's marketability. Rather, the Commission suggests that only one resident in the Woodlands' history has become unable to pay, and that there exists a waiting list of approximately 470 people who are interested in living at the Woodlands. Although the Assessor's assessment of the Woodlands' property is presumed to be correct, it twice has been corrected in this case-once by the Assessor, himself, and once by the Board following its hearing on the Foundation's challenge. Here, the Foundation asks that we reduce the assessment further in light of its § 501(c)(3) status, but, in order to prevail, the Foundation must present clear and convincing evidence that the assessment is erroneous. Upon a review 171 of the record in this case, we conclude that the Foundation has not sustained its burden of proof. We previously have counseled that, "[i]n all cases, it is incumbent upon the circuit court, as it is upon the county commission and the assessor, to set the assessed value of the all parcels of land at the amount established by the State Tax Commissioner. W. Va.Code § 18-9A-11." Syl. pt. 5, Tug Valley Recovery Ctr. v. Mingo County Comm'n, 164 W.Va. 94, 261 S.E.2d 165 (1979). In turn, Title 110, Series 1P of the West Virginia Code of State Rules confers upon the State Tax Commissioner discretion in choosing and applying the most accurate method of appraising commercial and industrial properties. The exercise of such discretion will not be disturbed upon judicial review absent a showing of abuse of discretion. Syl. pt. 5, In re Tax Assessment Against Am. Bituminous Power Partners, L.P., 208 W.Va. 250, 539 S.E.2d 757 (2000). Pursuant to W. Va.C.S.R. § 110-1P-2 (1991), factors that shall be considered in the appraisal of commercial property for ad valorem property tax purposes include: The location of such property; Its site characteristics; The ease of alienation thereof, considering the state of its title, the number of owners thereof, and the extent to which the same may be the subject of either dominant or servient easements; The quantity of size of the property and the impact which its sale may have upon the surrounding properties; If purchased within the previous eight years, the purchase price thereof and the date of each such purchase; Recent sale of, or other transactions involving, comparable property; The value of such property to its owner; The condition of such property; The income, if any, which the property actually produces and has produced within the next preceding three (3) years; and Any commonly accepted method of ascertaining the market value of any such property, including techniques and method peculiar to any particular species of property if such technique or method is used uniformly and applied to all property of like species. W. Va.C.S.R. §§ 110-1P-2.1.1.1110-1P-2.1.1.10. Improvements to and on the land also are to be considered, W. Va.C.S.R. § 110-1P-2.1.2,[28] as well as additional factors. In addition to improvements, other important considerations affecting the value of land ... are: Location, Size, Shape, Topography, Accessibility, Present use, Highest and best use, Easements, Zoning, Availability of utility, Income imputed to land and Supply and demand for land of a particular type. W. Va.C.S.R. §§ 110-1P-2.1.3110-1P-2.1.3.12. Finally, "[e]ach of these factors should be considered in the appraisal of a specific parcel. Some, however, may be given more weight than others." W. Va.C.S.R. § 110-1P-2.1.4. While these criteria do not specifically reference a taxpayer's status as a § 501(c)(3) corporation as a factor to consider in appraising commercial property, these lists do contain many factors that would take 172 into account this unique status of the Woodlands property. For example, the Foundation contends that the particular manner in which it uses its property as a lifetime care retirement facility has not been adequately considered; according to W. Va.C.S.R. § 110-1P-2.1.3.6, though, a commercial property's "[p]resent use" is a factor to consider in its appraisal for purposes of taxation. The Foundation additionally argues that no consideration was given to the fact that, because it provides lifetime care for its residents, the property is encumbered by these "life estates"[29] such that a future purchaser likewise would be required to provide lifetime care for the Woodlands' residents. Again, however, such a consideration is one of the enumerated factors to consider in rendering a tax appraisal of commercial property: "[t]he ease of alienation thereof, considering the state of its title [and] the number of owners thereof." W. Va.C.S.R. § 110-1P-2.1.1.3. Lastly, the Foundation contends that because it is a not-for-profit corporation, it may have incurred construction costs that cannot be recouped if the property is sold because the cost of such improvements allegedly was greater than their market value and that this factor should have been considered in reaching its assessed value. The appraisal criteria take into account, however, "[t]he value of such property to its owner," W. Va.C.S.R. § 110-1P-2.1.1.7, suggesting that a particular parcel of property may be valued at one amount by its owner while it may be valued differently by persons other than its owner. Moreover, to the extent that the value of the Foundation's improvements to the Woodlands property have been diminished by depreciation, this factor also is required to be considered in appraising commercial property. See W. Va.C.S.R. § 110-1P-2.2.1.1 ("To determine fair market value under th[e cost] approach, replacement cost of the improvements is reduced by the amount of accrued depreciation and added to an estimated land value. In applying the cost approach, the Tax Commissioner will consider three (3) types of depreciation: physical deterioration, functional obsolescence, and economic obsolescence."). Thus, these factors, too, were all within the ambit of criteria required to be considered in appraising commercial property for the purpose of taxation. Having considered each of the arguments advanced by the Foster Foundation, we conclude that the Foundation has not sustained its burden of proving by clear and convincing evidence that its status as a § 501(c)(3) corporation was not adequately considered in assessing taxes on its Woodlands property. Each of the unique characteristics of the Woodlands was among the numerous factors required to be considered in rendering a tax appraisal of commercial property. Therefore, we affirm the circuit court's ruling upholding the Board's assessment of the Woodlands property in the amount of $29,759,000.00 for the 2007 tax year. IV. CONCLUSION For the foregoing reasons, the September 6, 2007, order of the Circuit Court of Cabell County is hereby affirmed. Affirmed. Justice ALBRIGHT not participating. Senior Status Justice McHUGH, sitting by temporary assignment. Senior Status Justice McHUGH disqualified. Judge BEANE, sitting by temporary assignment. Justice BENJAMIN dissents and reserves the right to file a dissenting opinion. 173 BENJAMIN, J., dissenting. (Filed Jan. 9, 2009) This case presents, among other issues, what the proper burden of proof should be for a taxpayer who challenges an assessor's tax assessment. More specifically, we have prior decisions of this Court which are inconsistent and conflicting with respect to whether the taxpayer must meet a "preponderancy of the evidence" burden, or whether the taxpayer must meet the more difficult "clear and convincing" burden of proof in order to prevail. I applaud my colleagues for resolving this conflict, but respectfully dissent to Syllabus Points 5 and 6 of the majority opinion to the extent that the taxpayer is required to meet a "clear and convincing" burden of proof when challenging assessments. I believe the proper burden of proof should be a "preponderancy of evidence" as it is in other valuation-type disputes within our judicial system. As correctly noted by the majority opinion, the West Virginia Legislature has not established what should be the proper burden of proof for a case such as this involving a taxpayer's challenge to a tax assessment. That is unfortunate because it requires this Court to do so. The majority opinion lists our prior cases which have touched on the burden of proof issue. While I appreciate that a decision in favor of one standard or the other is needed to resolve the issue of inconsistency in our prior decisions, I am unpersuaded by the majority's rationale for its adoption of the "clear and convincing" standard. In essence, the only rationale in the majority opinion which appears to be advanced to charge a citizen taxpayer with a higher burden is that there is a presumption that valuations of property for purposes of taxation are presumed to be correct. Op., at ___, 672 S.E.2d at 161. See Western Pocahontas Props. v. County Comm'n of Wetzel Co., 189 W.Va. 322, 431 S.E.2d 661 (1993). I fail to see why such a presumption compels a burden of proof on a taxpayer which is onerous and which is much more difficult to meet than that which applies to the State. In reviewing other jurisdictions, I observe that the same inconsistency which was heretofore present in our jurisprudence is present among the other states. Nevertheless, a pattern emerges that state legislatures are more likely than courts to use the preponderancy burden. See Arizona Rev. Stat. Ann. § 42-1255 (2004); Aileen H. Char Life Interest v. Maricopa County, 208 Ariz. 286, 93 P.3d 486, 491 (2004); Cal. Rev. & Tax.Code §§ 51.5(e), 110(b), 5170; Paine v. State Board of Equalization, 137 Cal.App.3d 438, 442, 187 Cal.Rptr. 47, 49 (1982); Florida Statutes, § 194.301; Smith v. Royal & Sons, Ltd., 801 So.2d 255, 257-8 (Fla.Ct.App.2001) (per curiam); Idaho Session Law 63-511 (1985); Iowa Code § 429.2 (2006); Post-Newsweek Cable, Inc. v. Board of Review of Woodbury County, 497 N.W.2d 810, 813 (Iowa 1993); Kansas S.A.2003 Supp 79-2005(I); Saline County Board of Commissioners v. Jensen, 32 Kan.App.2d 730, 88 P.3d 242, 244-45 (2004); In re Colorado Interstate Gas Co., 276 Kan. 672, 79 P.3d 770 (2003); Ky.Rev.Stat. Ann. § 13B.090 (1996); U Haul Real Estate Co. v. County of Dakota, 2008 WL 650290 (Minn.Tax.Ct. March 7, 2008); Southern Minnesota Beet Sugar Coop v. County of Renville, 737 N.W.2d 545 (Minn. 2007); In re Walsh (New Hampshire Board of Tax and Land Appeals), 156 N.H.347, 934 A.2d 528, 532 (2007); Porter v. Town of Sanbornton, 150 N.H. 363, 840 A.2d 778, 783 (2003); Okla. Stat. tit. 68 § 221 (2002); Estate of Sieber v. Oklahoma Tax Comm'n, 41 P.3d 1038, 1041-42 (Okla.Civ.App.2001); O.R.S. § 305.427 (Oregon 2005); R.I. Gen. Laws § 8-8-28 (1984); Tex. [Tax] Code Ann. §§ 41.43 and 42.43 (2007); Mills v. Board of County Commissioners of Burleigh County, 305 N.W.2d 832, 833-34 (N.D.1981); Board of Assessment Appeals v. Sampson, 105 P.3d 198, 204 (Colo.2005); OCGA § 48-5-41(Ga.); Lamad Ministries, Inc. v. Dougherty County Bd. of Tax Assessors, 268 Ga.App. 798, 602 S.E.2d 845, 849 (2004); Miss.Code § 27-77-7(4) (2006); Utah Code Ann. § 59-1-604 (1992); and West Creek Associates, LLC v. County of Goochland, 276 Va. 393, 665 S.E.2d 834, 842-43 (2008). States which use a "clear and convincing" or more stringent standard seem generally to do so by court decision. See City of Pinson v. Utilities Board of Oneonta, 986 So.2d 367, 370 (Ala. 174 2007); Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835, 836-37 (1975); Leonard v. Comm'r of Revenue Services, 264 Conn. 286, 823 A.2d 1184 (2003); Leader-Treks, Inc. v. Dept. of Revenue, 385 Ill. App.3d 442, 324 Ill.Dec. 188, 895 N.E.2d 683 (2008); Gannet Company, Inc. v. State Tax Assessor, 959 A.2d 741 (Maine 2008); Brenner v. Banner County Board of Equalization, 276 Neb. 275, 753 N.W.2d 802, 813 (2008); SER Board of Equalization v. Barta, 124 Nev. 58, 188 P.3d 1092, 1097-98 (2008); Edmondson Mgmt. Serv. Inc. v. Woods, 603 S.W.2d 716, 717 (Tenn.1980); and Washington Beef, Inc. v. County of Yakima, 143 Wash.App. 165, 177 P.3d 162, 167 (2008). It may be observed that burdens of proof lack general uniformity, even within states. Indeed, it is not unusual for a given state to have a lesser burden for one issue, such as assessments, and a more stringent burden for another issue, such as exemptions. See generally McDonnell Douglas Corp. v. Franchise Tax Board, 69 Cal.2d 506, 72 Cal.Rptr. 465, 446 P.2d 313, 316 (1968); Lamad Ministries, at 849; North Alamo Water Supply Corp. v. Willacy County Appraisal District, 804 S.W.2d 894, 899 (Tex.1991). Here, we have a taxpayer simply challenging an assessment. Such a challenge is governed mainly by expert opinions. Absent a compelling reason to hold the taxpayer citizen to a stiffer burden than the State, I believe that the proper burden, consistent with expert disputes in civil cases, is that the taxpayer must prove his or her case by a "preponderancy of the evidence." To the extent that policy considerations may dictate more stringent burdens in tax matters, I believe that is a matter which should be left to the Legislature. Absent such legislative action, there should be no disparity in burdens between the State and its citizens in matters such as this. Accordingly, I respectfully dissent. NOTES [1] Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright. [2] An entity, such as the Foster Foundation, qualifies for exemption from federal income tax if it is "organized and operated exclusively for ... charitable ... purposes." 26 U.S.C. § 501(c)(3) (2005) (Supp.2007). Property belonging to such an entity, however, may still be subject to property tax if it does not satisfy the exemption criteria. See Syl. pt. 3, Wellsburg Unity Apartments, Inc. v. County Comm'n of Brooke County, 202 W.Va. 283, 503 S.E.2d 851 (1998) ("In order for real property to be exempt from ad valorem property taxation, a two-prong test must be met: (1) the corporation or other entity must be deemed to be a charitable organization under 26 U.S.C. § 501(c)(3) or 501(c)(4) as is provided in 110 C.S.R. § 3-19.1; and (2) the property must be used exclusively for charitable purposes and must not be held or leased out for profit as is provided in W. Va.Code § 11-3-9."). Cf. Syl. pt. 2, id. ("Real property that is used exclusively for charitable purposes and is not held or leased for profit is exempt from ad valorem real property taxation. W. Va.Code § 11-3-9 (1990)."). [3] The Foster Foundation received its § 501(c)(3) status in 1923. [4] The provision of lifetime care for residents is a requirement for homes for the aged that have § 501(c)(3) status. As we explained in footnote 30 of Maplewood Community, Inc. v. Craig: For a corporation providing residential services for the aged to be viewed as a 501(c)(3) charitable organization exempt from federal income tax, the Internal Revenue Service requires that the organization must be able to demonstrate that it "operates in a manner designed to satisfy the three primary needs of aged persons" which are housing, health care, and financial security. As part of proving that is meets the financial security need of its residents, such organizations "must be committed to an established policy, whether written or in actual practice, of maintaining in residence any persons who become unable to pay their regular charges." Rev. Rul. 72-124, 972-1 I.R.B. 145. 216 W.Va. 273, 283 n. 30, 607 S.E.2d 379, 389 n. 30 (2004) (per curiam). [5] The main building of the complex is comprised of 283,693 square feet. The Woodlands also has twenty-three additional single-structure homes, each of which has 2,100 square feet. [6] See generally W. Va.Code § 11-3-24 (1979) (Repl.Vol.2008). For further discussion of this statutory language, see Section III.A., infra. [7] Mr. Withers is certified as a general real estate appraiser in the States of West Virginia, Ohio, and Kentucky. [8] Assessments of property for taxation purposes are based on the property's "true and actual" value, W. Va.Code § 11-3-1 (1977) (Repl.Vol. 2008), which has been defined as "its market value." Syl. pt. 3, in part, Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689 (1982). See infra Section III.C. for further discussion of these authorities. [9] W. Va.Code § 30-38-1(c)(5) (2001) (Repl.Vol. 2002) exempts officers and employees "of the state of West Virginia or a political subdivision thereof" from the real estate licensure and certification requirements "when the employee or officer is performing his or her official duties[.]" [10] A more specific standard of review applicable to challenges regarding the constitutionality of statutory provisions also governs this case and will be discussed more fully with the parties' arguments in this regard. See Section III.A., infra. [11] An additional standard of review, specifically regarding challenges to tax assessments, is also applicable to the case sub judice. That standard will be discussed more fully in connection with the parties' arguments on that issue in Section III.C., infra. [12] In its "Petition for Appeal" filed in the Circuit Court of Cabell County on March 23, 2007, the Foundation lists two "Assignments of Error," neither of which challenges the constitutionality of the County Commission sitting as the Board of Equalization and Review to decide taxpayers' appeals of tax assessments: The Foster Foundation assigns as error the County Commission's refusal to lower the assessed value of the Woodlands to its fair market value of $14,900,000 pursuant to West Virginia Code section 11-3-1, which requires that, "All property shall be assessed annually... at its true and actual value." True and actual value means fair market value, which is what the property would sell for if it were sold on the open market. See Kline v. McCloud, 174 W.Va. 369, 326 S.E.2d 715 (1984). The Foster Foundation assigns as error that an employee of the county, who is not a licensed real estate appraiser as required by West Virginia law, can assess the value of a taxpayers' real property and then place the burden on the taxpayer to rebut the assessed value by hiring a duly licensed real estate appraiser under West Virginia law. The presumption of validity given to an unlicensed real estate appraiser's assessed value breaches the due process safeguards afforded the taxpayers of the State of West Virginia and improperly frustrates the purpose of West Virginia Code section 11-3-1 of appraising real property at its fair market value. Thereafter, on April 9, 2007, the Foundation, in compliance with W. Va.Code § 58-3-3 (1923) (Repl.Vol.2005), filed a "Bill of Exceptions" to the Board of Review's decision. The assignments of error set forth therein are identical to those contained in the Foundation's "Petition for Appeal," quoted above. [13] "Cogent" is defined as "[c]ompelling or convincing." Black's Law Dictionary 276 (8th ed.2004). Thus, "clear and cogent evidence" may also be construed as "clear and convincing evidence." See, e.g., McKesson Water Prods. Co. v. Director, Div. of Taxation, 23 N.J.Tax 449, 456 n. 3 (N.J.Super.Ct.App.Div.2007) (recognizing change of "clear and cogent" to "clear and convincing" by statutory amendment); Baum v. Dubord, No. 201247, 1998 WL 1990408, at *1 (Mich.Ct.App. Aug.7, 1998) (per curiam) (explaining that "`clear and cogent' proof ... is very similar to the `clear and convincing' standard" (citation omitted)); Louis Dreyfus Corp. v. Huddleston, 933 S.W.2d 460, 468 n. 5 (Tenn.Ct. App.1996) (observing that "[t]he `clear and cogent' standard is essentially similar to the `clear and convincing' standard" (citation omitted)). Therefore, to maintain consistency throughout this opinion, we will refer to this burden of proof as "clear and convincing" rather than "clear and cogent," except where the context otherwise requires. [14] To the contrary, "[i]s is a general rule that valuations for taxation purposes fixed by an assessing officer are presumed to be correct[.]" Syl. pt. 7, in part, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983). Further discussion as to the presumption of correctness accorded to assessors' assessments is set forth in Section III.C., infra. [15] See supra note 12. [16] See, e.g., Syl. pt. 2, in part, Western Pocahontas Props., Ltd. v. County Comm'n of Wetzel County, 189 W.Va. 322, 431 S.E.2d 661 (1993) ("As a general rule, there is a presumption that valuations for taxation purposes fixed by an assessor are correct.... The burden is on the taxpayer challenging the assessment to demonstrate by clear and convincing evidence that the tax assessment is erroneous." (emphasis added)). [17] See, e.g., Syl. pt. 8, Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689 ("An objection to any assessment may be sustained only upon the presentation of competent evidence, such as that equivalent to testimony of qualified appraisers, that the property has been under- or over-valued by the tax commissioner and wrongly assessed by the assessor. The objecting party, whether it be the taxpayer, the tax commissioner or another third party, must show by a preponderance of the evidence that the assessment is incorrect." (emphasis added)). [18] Subsequently, this Syllabus point 8 from Killen v. Logan County Commission, 170 W.Va. 602, 295 S.E.2d 689 (1982), was quoted in a per curiam opinion, which also quoted Syllabus point 7 of In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983). See Eastern Am. Energy Corp. v. Thorn, 189 W.Va. 75, 428 S.E.2d 56 (1993) (per curiam). In resolving the issue as to the correct burden of proof a taxpayer is required to sustain, however, the opinion held the taxpayer to a rather confusing, almost hybrid standard of "clear and preponderating" evidence: "Because the record does not show that Eastern met its burden of showing by clear and preponderating evidence that the county assessment was incorrect, we find that [the] circuit court was correct in affirming the county assessment for the plant." Eastern Am., 189 W.Va. at 79, 428 S.E.2d at 60. Therefore, the Eastern American opinion, which has limited precedential weight as a per curiam decision, did not definitively adopt either the clear and convincing evidence or the preponderance of the evidence burden of proof. See Syl. pt. 2, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001) ("This Court will use signed opinions when new points of law are announced and those points will be articulated through syllabus points as required by our state constitution."). See also Syl. pt. 3, Walker, id. ("Per curiam opinions have precedential value as an application of settled principles of law to facts necessarily differing from those at issue in signed opinions. The value of a per curiam opinion arises in part from the guidance such decisions can provide to the lower courts regarding the proper application of the syllabus points of law relied upon to reach decisions in those cases."). [19] Although no other cases from this Court appear to have adopted the Killen preponderance of the evidence burden of proof, the United States Court of Appeals for the Fourth Circuit also has required taxpayers to prove their claim for relief by a preponderance of the evidence. See CSX Transp., Inc. v. Board of Pub. Works of State of West Virginia, 95 F.3d 318, 323 (4th Cir. 1996) (citing footnote 27 in Killen and concluding that, "as the court noted in Killen, West Virginia courts apply the preponderance of evidence standard ... to taxpayers' initial challenges to their tax assessments" (emphasis in original)). [20] A majority of other jurisdictions also impose a clear and convincing burden of proof upon taxpayers appealing real property tax assessments. See Kankakee County Bd. of Review v. Property Tax Appeal Bd., 131 Ill.2d 1, 22, 544 N.E.2d 762, 771, 136 Ill.Dec. 76, 85 (1989) ("The taxpayer who objects to an assessment on the basis of lack of uniformity bears the burden of proving the disparity of assessment valuations by clear and convincing evidence." (emphasis added) (citation omitted)); Nash Finch Co. v. Hall County Bd. of Equalization, 191 Neb. 645, 648, 217 N.W.2d 170, 173 (1974) ("In an appeal to the county board of equalization or to the district court, and from the district court to this court, the burden of persuasion imposed on the complaining taxpayer is not met by showing a mere difference of opinion unless it is established by clear and convincing evidence that the valuation placed upon his property when compared with valuations placed on other similar property is grossly excessive and is the result of a systematic exercise of intentional will or failure of plain duty, and not mere errors of judgment." (emphasis added) (citation and internal quotations omitted)); State of Nevada ex rel. State Bd. of Equalization v. Bakst, 122 Nev. 1403, 1407, 148 P.3d 717, 721 (2006) (en banc) ("The burden of proof is on the taxpayer `to show by clear and satisfactory evidence that any valuation established by the Nevada Tax Commission or the county assessor or equalized by the county board of equalization or the State Board of Equalization is unjust and inequitable.'" (emphasis added) (quoting citing Nev.Rev. Stat. § 361.430) (footnote omitted)); McNally v. Teaneck Township, 75 N.J. 33, 44, 379 A.2d 446, 451 (1977) ("The contents of the report [certifying the assessments] are presumptively correct and the taxpayers had the burden of overcoming that presumption by clear and convincing evidence." (emphasis added) (citations omitted)); In re Assessment of Ge Bauer Apartments, 170 Or. 47, 58, 131 P.2d 962, 966 (1942) (observing that, in proceeding brought by taxpayer to challenge assessed value of property, taxpayer "assumed the burden of proving by clear and convincing evidence that the assessment of its property ... was in excess of its true cash value or that the assessment was not reasonably proportionate to assessed valuations of similar properties" (emphasis added) (citations omitted)); Edmondson Mgmt. Serv., Inc. v. Woods, 603 S.W.2d 716, 717 (Tenn.1980) ("The burden of proof is upon the taxpayer to prove that the assessment made is incorrect and to prove its right to recovery by clear and convincing evidence." (emphasis added)); Pier 67, Inc. v. King County, 89 Wash.2d 379, 384, 573 P.2d 2, 5 (1977) ("The taxpayer has the burden of establishing by clear and convincing evidence that the valuations and assessments are illegal." (emphasis added) (citation omitted)). But see Board of Assessment Appeals v. Sampson, 105 P.3d 198, 204 (Colo.2005) ("[A] protesting taxpayer must prove that the assessor's valuation is incorrect by a preponderance of the evidence in a de novo BAA [Board of Assessment Appeals] proceeding." (BAA proceeding is akin to circuit court review in West Virginia) (emphasis added)); Mazourek v. Wal-Mart Stores, Inc., 831 So.2d 85, 89 (Fla.2002) ("The property appraiser's assessment is presumed correct, but such presumption is lost where the taxpayer demonstrates by a preponderance of the evidence that the property appraiser `has failed to consider properly' the section 193.011 factors [to arrive at just valuation of property]." (emphasis added) (citing Fla. Stat. § 194.301 (1997))); Frank v. Assessors of Skowhegan, 329 A.2d 167, 172 (Me. 1974) ("Unless it was error of law for the assessors to employ the appraisal approach which they used, it was the burden of the taxpayer in the Court below to establish by a fair preponderance of the evidence, that (a) The conclusion as to the value reached by the assessors was so unreasonable in the light of circumstances that the property was substantially overvalued and injustice resulted, or (b) that the assessment was in some way fraudulent, dishonest or illegal." (emphasis added)); Westwood P'ship v. Gogarty, 103 S.W.3d 152, 161 (Mo.Ct.App.2003) ("There is no longer an automatic presumption regarding the correctness of an assessor's valuation.... The taxpayer in a Commission tax appeal still bears the burden of proof and must show by a preponderance of the evidence that the property was improperly classified or valued." (emphasis added) (citations omitted)); Shoosmith Bros., Inc. v. County of Chesterfield, 268 Va. 241, 245, 601 S.E.2d 641, 643 (2004) ("We presume that a county's tax assessment is correct, and the burden is on the taxpayer to rebut the presumption by showing by a clear preponderance of the evidence that its property is assessed at more than fair market value." (emphasis added)). Cf. In re FMC Corp. (Peroxygen Chems. Div.) v. Unmack, 92 N.Y.2d 179, 187-88, 699 N.E.2d 893, 896-97, 677 N.Y.S.2d 269, 272-73 (1998) ("Our analysis begins with the recognition that a property valuation by the tax assessor is presumptively valid.... However, when a petitioner challenging the assessment comes forward with 'substantial evidence' to the contrary, the presumption disappears.... The substantial evidence standard is a minimal standard. It requires less than `clear and convincing evidence' and less than proof by `a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt'...." (emphasis added) (citations omitted)). [21] The requirement of an appraisal and/or expert testimony is not contained in the statute governing taxpayers' appeals of property assessments but is alluded to in Syllabus point 8 of Killen. See W. Va.Code § 11-3-24. See also Syl. pt. 8, Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689 ("An objection to any assessment may be sustained only upon the presentation of competent evidence, such as that equivalent to testimony of qualified appraisers, that the property has been under- or over-valued by the tax commissioner and wrongly assessed by the assessor. The objecting party, whether it be the taxpayer, the tax commissioner or another third party, must show by a preponderance of the evidence that the assessment is incorrect." (emphasis added)). At the conclusion of the Board's hearing, several Commissioners conceded that the wording of the Commission's letter did not comply with the governing statutory language and indicated an intention to remedy this infirmity. [22] Employees of an assessor's office are not required to be licensed or certified in order to conduct real estate appraisals. See supra note 9. [23] See note 2, supra. [24] Although the Foundation phrases this assignment of error in terms of a denial of due process, it is actually a simple challenge regarding the assessed value of the property. [25] See supra note 4. [26] The Foundation references various commentary from the February 9, 2007, Board hearing which considered the Woodlands' construction costs and amount of replacement value fire insurance in arriving at an assessed value for the property. [27] See note 29, infra. [28] W. Va.C.S.R. § 110-1P-2.1.2 (1991) directs There are two (2) types of improvements which are considered in the appraisal process; these are improvements to the land and improvements on the land. Improvements to the land are land improvements, the value of which are included in the value of land. Some examples of these improvements include privately owned drainage systems, driveways, walks, etc. Improvements on the land are buildings and structures. They are valued separate and apart from the land. Id. at §§ 110-1P-2.1.2, 110-1P-2.1.2.1, 110-1P-2.1.2.2. [29] We use the word "life estate" here because that is the terminology used by the Foundation in its argument before this Court. However, we believe this term to be a misnomer in this case because, typically, a life tenant in possession, not a remainderman, pays the property taxes due and owing on his/her interest in the property. See W. Va.Code § 11-4-3(a)(1) (2007) (Repl.Vol. 2008) (defining "owner," for purposes of assessment of real property, as "the person ... who is possessed of the freehold, whether in fee or for life"). Thus, if the residents of the Woodlands actually held life estates in their Woodlands residences, they, and not the Foster Foundation, would be responsible for paying the taxes at issue herein.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342506/	381 S.C. 253 (2009) 672 S.E.2d 585 Ex parte Mamie L. JACKSON, Appellant, In re City of Columbia, Respondent, v. Mamie L. Jackson, Defendant. No. 4477. Court of Appeals of South Carolina. Submitted November 1, 2008. Decided January 8, 2009. 257 Appellate Defender Elizabeth A. Franklin, South Carolina Commission on Indigent Defense, of Columbia, for Appellant. Peter M. Balthazor, Office of the City Attorney, of Columbia, for Respondent. WILLIAMS, J.: Mamie Jackson (Jackson) appeals the trial court's decision to hold her in contempt and her imprisonment sentence of ninety days. We reverse. FACTS The City of Columbia (the City) commenced an action against Jackson seeking injunctive relief. Among the grounds for relief, the City sought to enjoin Jackson from accumulating rubbish and debris on her property as prohibited by the City's Code. The trial court granted the City's request and enjoined Jackson from accumulating junk, clutter, and debris on her property. Additionally, the trial court granted the City's request to abate the conditions that constituted a violation of the City's Property Maintenance Code. Subsequently, the City removed and disposed of the junk, clutter, and debris on Jackson's property. Approximately two months after this hearing, the City brought a petition for rule to show cause as to why Jackson should not be held in contempt for violating the trial court's order prohibiting her from accumulating junk, clutter, and 258 debris on her property. The City argued that less than a week after it removed the items on Jackson's property, Jackson brought additional clutter, debris, and junk back onto her property. The trial court held a hearing to determine if Jackson was in contempt. Jackson appeared pro se and argued she did not violate the trial court's order because she did not bring additional items onto the property but rather moved the items from inside the house to outside the house for storage purposes. The trial court rejected this argument and found Jackson in contempt and sentenced her to ninety days imprisonment. This appeal follows.[1] LAW/ANALYSIS Courts have inherent power to punish for contemptuous conduct. Miller v. Miller, 375 S.C. 443, 453-54, 652 S.E.2d 754, 759-60 (Ct.App.2007) (internal citations omitted). Courts are vested by their very creation with the power to preserve order in judicial proceedings and to enforce judgments and orders. Id. Contempt results from the willful disobedience of a court's order. Id. A willful act is defined as one which is done voluntarily and intentionally with the specific intent to do something the law forbids, or with specific intent to fail to do something the law requires to be done. Id. Initially, we must determine whether the contempt involved in this case was civil or criminal. The determination of whether contempt is civil or criminal hinges on the underlying purpose of the contempt ruling. Id. at 456-57, 652 S.E.2d at 761. If the primary purpose of contempt is to coerce a party to do the thing required by the court for the benefit of the complainant, then the contempt is considered civil. Id. However, if the principal function of the contempt is to preserve the court's authority and to punish a party for disobedience of the court's order, then it is criminal. Id. Punishment for civil contempt is remedial in that sanctions are conditioned on compliance with the court's order, whereas an 259 unconditional penalty is considered criminal contempt because it is solely and exclusively punitive in nature. Id. In the present case, the contempt imposed was criminal because the function of the sanctions imposed was to punish Jackson for disobedience of the trial court's order. Namely, the trial court sought to punish Jackson because she violated the order prohibiting her from accumulating junk, clutter, and debris on her property. Furthermore, the punishment imposed, the ninety days imprisonment, was unconditional in that Jackson did not have an opportunity to purge herself of the sanctions if she complied with the court order. Thus, the trial court viewed the sanctions as criminal rather than civil. See id. (holding a sentence of imprisonment is considered punitive, and therefore criminal contempt, if it is limited to a definite period). The distinction between civil and criminal contempt is crucial because criminal contempt triggers additional constitutional safeguards. Id. The Sixth and Fourteenth Amendments to the United States Constitution ensure that an individual be afforded the right to assistance of counsel before he or she can be validly convicted and punished by imprisonment. State v. Thompson, 355 S.C. 255, 261-62, 584 S.E.2d 131, 134-35 (Ct.App.2003). The right to counsel is by far the most pervasive, for it affects a person's ability to assert any other rights he or she may have. Id. The erroneous deprivation of this right constitutes per se reversible error. Id. It is, however, possible to waive the Sixth Amendment right to counsel. Id. To effectuate a valid waiver of the right to counsel, the accused must (1) be advised of the right to counsel and (2) be adequately warned of the dangers of self-representation. State v. McLauren, 349 S.C. 488, 493-94, 563 S.E.2d 346, 348-49 (Ct.App.2002) ("Faretta[2] requires that a defendant be made aware of the dangers and disadvantages of self-representation so that the record will establish he knows what he is doing and his choice is made with eyes open.") (internal citations and quotations omitted). It is the trial court's responsibility to determine whether there was a knowing 260 and intelligent wavier by the accused. Thompson, 355 S.C. at 261-62, 584 S.E.2d at 134-35. A specific inquiry by the trial court expressly addressing the disadvantages of appearing pro se is preferred. Id. at 262-63, 584 S.E.2d at 134-35. If the trial court fails to address the disadvantages of appearing pro se, this Court will examine the record to determine whether the accused had sufficient background or was apprised of his rights by some other source. McLauren, 349 S.C. at 494, 563 S.E.2d at 349. Consequently, when determining whether the accused knowingly and voluntarily waived his or her right to counsel the "ultimate test is not the trial judge's advice but rather the defendant's understanding." Thompson, 355 S.C. at 262-63, 584 S.E.2d at 135. The following factors are to be considered in determining if the accused had a sufficient background to understand the disadvantages of self-representation: (1) the accused's age, educational background, and physical and mental health; (2) whether the accused was previously involved in criminal trials; (3) whether he knew of the nature of the charge and of the possible penalties; (4) whether he was represented by counsel before trial or whether an attorney indicated to him the difficulty of self-representation in his particular case; (5) whether he was attempting to delay or manipulate the proceedings; (6) whether the court appointed stand-by counsel; (7) whether the accused knew he would be required to comply with the rules of procedure at trial; (8) whether he knew of legal challenges he could raise in defense to the charges against him; (9) whether the exchange between the accused and the court consisted merely of pro forma answers to pro forma questions; and 261 (10) whether the accused's waiver resulted from either coercion or mistreatment. McLauren, 349 S.C. at 494, 563 S.E.2d at 349. In the present case, the trial court conducted a hearing to determine if Jackson was in contempt. Jackson appeared pro se at this hearing. At the conclusion of the hearing, the trial court sentenced Jackson to ninety days imprisonment. The record is completely devoid of any statements by the trial court informing Jackson of her right to counsel. Additionally, the record does not reveal the trial court warned Jackson in any way as to the dangers of self-representation. Moreover, the trial court did not determine, as required, that Jackson knowingly and intelligently waived the right to counsel. Our examination of the record does not reveal Jackson had a sufficient background or was apprised of her constitutional right to counsel by another source. Consequently, the trial court's decision to sentence Jackson to ninety days imprisonment was reversible error. Thompson, 355 S.C. at 262-63, 584 S.E.2d at 134-35. (holding the erroneous deprivation of the right to counsel constitutes per se reversible error).[3] We note that this opinion is limited to the issue of constructive contempt. Constructive contempt is contemptuous conduct occurring outside the presence of the court, whereas direct contempt is defined as contemptuous conduct that occurs in the presence of the court. Miller, 375 S.C. at 455, 652 S.E.2d at 760. In the present case, the contemptuous conduct was Jackson's failure to comply with the court order prohibiting her from accumulating junk, clutter, and debris on 262 her property. This conduct occurred outside the presence of the court and is therefore constructive contempt.[4] CONCLUSION Accordingly, the trial court's decision is REVERSED.[5] PIEPER and GEATHERS, JJ., concur. NOTES [1] Jackson was released from custody pending the appeal and appointed counsel. [2] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). [3] The City argues the issue of whether Jackson was entitled to counsel is not preserved for review because the trial court did not address it. We disagree. "A notable exception to this general rule requiring a contemporaneous objection is found when the record does not reveal a knowing and intelligent waiver of the right to counsel. The pro se defendant cannot be expected to raise this issue without the aid of counsel." State v. Rocheville, 310 S.C. 20, 25, 425 S.E.2d 32, 35 (1993). Thus, Jackson was not required to preserve this issue for our review. [4] Jackson raises other issues on appeal. Due to the disposition of the right to counsel issue, we need not address these issues. Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) ("An appellate court need not address remaining issues when disposition of prior issue is dispositive."). [5] We decide this case without oral arguments pursuant to Rule 215, SCACR.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342507/	672 S.E.2d 423 (2008) SIRMANS et al. v. The BOARD OF TRUSTEES OF the SOUTH GEORGIA ANNUAL CONFERENCE OF the UNITED METHODIST CHURCH, INC. et al. No. A08A2105. Court of Appeals of Georgia. December 22, 2008. 424 Berrien L. Sutton, Homerville, for appellants. Jones, Cork & Miller, Frank C. Jones, W. Warren Plowden Jr., Cater C. Thompson, Macon, Robert B. Summer, Pearson, for appellees. RUFFIN, Presiding Judge. The Board of Trustees of the South Georgia Annual Conference of the United Methodist Church, Inc., Reverend Don L. Adams, and Reverend Tony Crosby (collectively, "the UMC") filed a petition for declaratory judgment and an injunction against Harry Sirmans, Julian Haskins, Mabel Sirmans, Ricky Sirmans, Reavis Kyser, Randy Sirmans, Brian Sirmans, Imogene Haskins, Frank Drake, and Reverend David Akins (collectively, "the Sirmans"), seeking control and use of the property of the Live Oak United Methodist Church in Atkinson County. The UMC filed a motion for summary judgment, which the trial court granted, and this appeal followed.[1] The Sirmans allege in several enumerations of error that the trial court erred in granting summary judgment to the UMC. Finding no error, we affirm. To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law.[2] We conduct a de novo review of the grant of a motion for summary judgment, viewing the evidence and all reasonable inferences drawn therefrom in a light favorable to the nonmovant.[3] So viewed, the record demonstrates that in 1896, Elizabeth Corbett recorded a deed conveying the property at issue to nine individual grantees.[4] The deed provided that: [I]n consideration of the natural love and affection she has for her neighbors the said Elizabeth M. Corbett hereby gives, grants, and conveys to the said S.B. Pafford, S.L. Marion, Charles W. Corbett, John Haskin, George W. Hudsock, J.J. Richardson, E.M. Pafford, David Fincher, W.M. Pafford, and others their heirs and assigns and their successors and their heirs and assigns [sic] a parcel of land lying in said county ... shown as the Live Oak School House Lot, said lot to be used for a school house and church house lot and graveyard ... together with the rights and privileges thereto belonging forever in fee simple.[5] In 1938, Waldo Henderson conveyed the property to "J.B. Herndon, Mrs. Martha Haskins, and their successors, as trustees of 425 the Live Oak M.E." The deed states that Henderson's conveyance was made "[i]n trust that said premises shall be used, kept, maintained and disposed of as a place of devine [sic] worship for the use of the ministry and membership of the Methodist Epispoeal [sic] Church South; subject to the disciplin[e], usage, and Ministerial appointments of said Church...."[6] In 1998, The Langdale Company executed a deed conveying a tract of land, including the land described in the 1938 deed, to "The Trustees of Live Oak Church." The purpose of this deed was to enlarge the cemetery adjoining Live Oak Church. The church, identified by signs as the "Live Oak United Methodist Church," accepted ministers assigned to it by the UMC, who paid a portion of the ministers' salaries. In 2003, 16 members of the Live Oak United Methodist Church advised the South Georgia Conference that they were going to withdraw from the UMC and that the church would thereafter be known as "Live Oak Methodist Church."[7] The UMC filed a petition for declaratory judgment and an injunction, seeking control over the church property. The trial court granted summary judgment to the UMC, holding that the church property, including improvements thereon [is] held in trust to be used, kept and maintained as a place of divine worship of the ministry and members of The United Methodist Church; subject to The Discipline, usage and ministerial appointments of said Church ... and similarly, all personal property of Live Oak United Methodist Church is held in trust for said use and purpose. The trial court also enjoined the Sirmans from using the name "Live Oak Methodist Church" and otherwise interfering with the UMC's use and enjoyment of the church property. 1. In their answer, the Sirmans asserted that they were not proper parties to the lawsuit because they held no title to the church property and that the UMC had failed to join the owners of the property as indispensable parties. On appeal, the Sirmans argue that the trial court erred in failing to resolve this issue before granting summary judgment to the UMC. We disagree. Specifically, the Sirmans contend that the owners of the property were indispensable because the declaratory judgment sought by the UMC "would have a manifestly negative impact on the rights and interests of the title owners." And, the Sirmans urge, "[a]ny declaration that a third party has the right to use the property is patently prejudicial to the rights of the title owners." In support of their position, the Sirmans filed the affidavits of individuals identifying themselves as heirs of three of the nine named grantees in the 1896 deed essentially stating that they have never given up their ownership rights in the property and "claim[ing] partial ownership of [the church] property as an heir [of one of the grantees in the 1896 deed]." OCGA § 9-11-19(a) provides that [a] person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among those who are already parties; or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (A) As a practical matter impair or impede his ability to protect that interest; or (B) Leave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Here, the affiants are not indispensable parties to this action. The declaratory judgment and injunction simply establish that, between the UMC and the Sirmans, the UMC has the right to control the church property. Disposition of this case will not impair the ability of the affiants to assert their rights to the property.[8] Moreover, because 426 they are not in possession of the property, the affiants are not indispensable parties to a suit concerning action thereto.[9] Thus, the Sirmans' argument that the trial court erred in granting summary judgment to the UMC before joining the affiants as indispensable parties provides no basis for reversal. 2. The Sirmans also allege that the trial court erred in granting summary judgment because there was an outstanding motion to intervene. Elizabeth Drake, one of the heirs that the Sirmans claimed as an indispensable party, filed a motion to intervene pursuant to OCGA § 9-11-24(a)(2), on behalf of herself and all of the heirs to the 1896 deed. OCGA § 9-11-24(a)(2) provides that [u]pon timely application anyone shall be permitted to intervene in an action ... [w]hen the applicant claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Drake did not file her motion to intervene until the day of the summary judgment motion hearing. According to the UMC, the motion was therefore untimely.[10] Pretermitting whether the motion was timely, however, Drake is not entitled to intervention. The trial court's order granting declaratory relief to the UMC would not preclude the property owners from protecting their rights to the property, including pursuing claims against others.[11] Thus, Drake had no interest that required protecting by intervention.[12] It follows, therefore, that the trial court did not err in granting summary judgment to the UMC before adding Drake as an indispensable party as asserted by the Sirmans. 3. Next, the Sirmans argue that the trial court erred in granting summary judgment to the UMC because there were genuine issues of material fact remaining regarding title to and ownership of the property. But the UMC does not claim ownership of the property. Instead, the UMC sought a declaratory judgment to determine whether it or the Sirmans have the right to control the property. The trial court concluded that the UMC had the right to use and maintain the property as a place of worship; it did not render judgment regarding ownership of the property. Thus, any issues regarding title to and ownership of the property are not genuine issues of material fact which would preclude summary judgment.[13] 4. The Sirmans claim that the trial court erred as a matter of law to the extent that it found that the UMC was entitled to any interest in the property at issue. We find no merit to this claim. OCGA § 14-5-46 validates deeds of conveyance for church properties according to the limitations set forth in the deeds and for use "according to the mode of church government or rules of discipline exercised by such churches or religious societies." And conveyances to trustees under that Code section "shall be subject to the authority of the church or religious society for which they hold the same in trust and may be expelled from said trust by such church or society, according to the form of government or rules 427 of discipline by which they may be governed."[14] The Supreme Court of Georgia has recognized that the UMC is a connectional denomination subject to the Book of Discipline, the constitution of the UMC.[15] "This means that the local church is a part of the whole body of the general church and is subject to the higher authority of the organization and its laws and regulations."[16] The Book of Discipline requires that every deed of property to a local church shall include a trust clause, which provides that the property is held in trust for the use of the ministry and members of the UMC, subject to the provisions of The Book of Discipline.[17] However, even in the absence of such a trust clause, the property is nevertheless held in trust for the UMC if any of the following three factors can be shown: a) the conveyance of the property to a local church or church agency (or the board of trustees of either) of The United Methodist Church or any predecessor to The United Methodist Church; b) the use of the name, customs, and polity of The United Methodist Church or any predecessor to The United Methodist Church in such a way as to be thus known to the community as a part of such denomination; or c) the acceptance of the pastorate of ordained ministers appointed by a bishop or employed by the superintendent of the district or annual conference of The United Methodist Church or any predecessor to The United Methodist Church.[18] In the 1938 deed, Waldo Henderson conveyed the property "to trustees of the Live Oak M.E. South ... [i]n trust that said premises shall be used, kept, maintained and disposed of as a place of devine [sic] worship for the use of the ministry and membership of the Methodist Epispoeal [sic] Church South; subject to the disciplin[e], usage, and Ministerial appointments of said Church...." Thus, the deed contains a trust clause required by The Book of Discipline. The Sirmans argue, however, that no valid property interests were conveyed by that deed because Waldo Henderson was not a grantee or an heir of a grantee of the 1896 deed. But we need not address the Sirmans' contention that their ostensible challenge to the validity of the deed somehow invalidates the trust clause, as the facts of this case clearly indicate that as between the UMC and the Sirmans the property is held in trust for the UMC. First, the notice which precipitated this lawsuit provided by multiple members of the church and addressed to the District Superintendent of the Valdosta District of the United Methodist Church specifically stated that "it is with a heavy and saddened heart that we members of Live Oak Methodist Church inform you that we will withdraw from the United Methodist Church."[19] Moreover, the Live Oak Church has posted signs identifying itself as "Live Oak United Methodist." A district superintendent appointed by the UMC South Georgia Conference served Live Oak Church, and the church accepted and complied with some of the apportionments assigned to it by the UMC. The insurance policy covering the Live Oak Church building and other structures and personal property located on the church property listed the owner as "Live Oak Methodist Church"; the checks used to pay the insurance premiums were printed with the words, "Live Oak United Methodist." Further, from 1908 until 2004, the Live Oak United Methodist Church accepted the ministers assigned to it by the South Georgia Conference of the UMC; the ministers' salaries were paid in part by the Bishop of that Conference. Under these circumstances, where the Live Oak Church had a relationship with the UMC and accepted the benefits afforded to it as a result, the Sirmans as members of the 428 local church are precluded from now disclaiming affiliation with the UMC and cannot now deny the existence of a trust for the benefit of the UMC.[20] A local church, if it desires to remain independent of the influence of a parent church body, must maintain this independence in the important aspects of its operation e.g., polity, name, finances. It cannot, as here, enter a binding relationship with a parent church which has provisions of implied trust in its constitution, by-laws, rules, and other documents pertaining to the control of property, yet deny the existence of such relationship. It does not matter whether such agreement to be bound is memorialized. A local church cannot prosper by the benefits afforded by the parent, participate in the functioning of that body, yet successfully disclaim affiliation when the parent acts to the apparent disadvantage of the local, so to shield from equitable or contractual obligation the valuable property acquired by the local church either before or during such affiliation.[21] Thus, the trial court did not err in granting summary judgment to the UMC.[22] 5. The Sirmans challenge the trial court's grant of an injunction prohibiting them from using or attempting to use the name "Live Oak Methodist Church." Specifically, the trial court's order states that [t]he use of the name "Live Oak Methodist Church" for a non-connectional, separate and distinct church organization unlawfully deprives The United Methodist Church and its local connectional church, Live Oak United Methodist Church, of their identities, and the defendants are hereby restrained and enjoined from using or attempting to use this name other than as a part of The United Methodist Church. The Supreme Court of Georgia has held that [t]he local name of a church is of great value, not only because business is carried on and property held in that name, but also because members associated with the name the most sacred of their personal relationships and the holiest of their family traditions. And, since the right to use the name inheres in the institution, not in its members; when they cease to be members of the institution, use by them of the name is misleading and, if injurious to the institution, should be enjoined. Thus, the local members in defecting from the established church have given up their right to use the local church name.[23] The Sirmans contend that although the congregation used the services of a UMC preacher "for some time," the congregation was not commonly known as a connectional branch of the UMC. Thus, the Sirmans argue, "a genuine issue of material fact exists as to whether members of the community of Atkinson County would, in fact, assume that Live Oak Methodist Church is a branch of the UMC or otherwise be confused as to the identity of the church, rather than an independent Methodist Church." This argument is unpersuasive. Live Oak United Methodist Church existed as early as 1896, and according to records kept by the UMC, the UMC assigned pastors to the church beginning in 1908. The church signs posted at the property identify it as "Live Oak Methodist Church." Under these circumstances, the Sirmans' use of the name "Live Oak Methodist Church" would be misleading and confusing.[24] Thus, we affirm the judgment of the trial court granting the injunction by summary judgment.[25] 6. The Sirmans maintain that the trial court erred in enjoining and restraining them from interfering with the UMC's use of the property because there are material issues of fact existing "both with respect to the existence of any alleged right to use of the 429 property by the UMC and with respect to the necessity of an injunction to prevent [the a]ppellants from `interfering' with any such right." According to the Sirmans, there is no evidence in the record that they have any intention to prevent the UMC from using the church property or that they have done so in the past. The record belies this assertion. The UMC has submitted evidence showing that on June 20, 2004, appellant Frank Drake refused to allow the newly assigned UMC pastor to lead the service at the church, advising that he had arranged for another minister to do so. According to one witness, "Drake's statement and actions effectively refused to allow [the UMC pastor] to perform his duties as the pastor assigned to Live Oak United Methodist Church, either then or at any time thereafter." Based on this evidence, the trial court did not err in granting summary judgment on the UMC's claim for an injunction precluding the Sirmans from interfering with the UMC's use of the church property.[26] Judgment affirmed. ANDREWS and BERNES, JJ., concur. NOTES [1] The Sirmans filed a notice of appeal in the Supreme Court of Georgia, and it transferred the case to this Court. [2] See OCGA § 9-11-56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). [3] See Wynns v. White, 273 Ga.App. 209, 210, 614 S.E.2d 830 (2005). [4] Apparently, before 1896, the property contained a schoolhouse and a cemetery. [5] (Emphasis supplied.) [6] (Emphasis supplied.) [7] Although the Sirmans hold worship services on the property, they do not claim title to the church property. [8] See OCGA § 9-11-19(a); Pickett v. Paine, 230 Ga. 786, 796(4)(a), 199 S.E.2d 223 (1973) (party is not indispensable to an action where the case can be decided on its merits without prejudicing the rights of such party). [9] See Aponte v. City of Columbus, 246 Ga.App. 646, 650-651(7), 540 S.E.2d 617 (2000). [10] See OCGA § 9-11-24(a); Greer v. Fed. Land Bank, etc., 158 Ga.App. 60, 61-62, 279 S.E.2d 308 (1981) (motion to intervene was not timely when served two days before hearing on confirmation of sale of real property); Sta-Power Indus. v. Avant, 134 Ga.App. 952, 958(3), 216 S.E.2d 897 (1975) ("intervention must be timely"). [11] See OCGA § 9-11-24(a)(2). [12] See Zinser v. Tormenta, S.A., 213 Ga.App. 824, 825(1), 446 S.E.2d 249 (1994); Sloan v. Southern Floridabanc Fed. Sav. & Loan Assn., 197 Ga.App. 601, 603(2), 398 S.E.2d 720 (1990); Gregory v. Tench, 138 Ga.App. 219, 220(1)(a), 225 S.E.2d 753 (1976). [13] See MEA Family Investments, LP v. Adams, 284 Ga. 407, 410, 667 S.E.2d 609 (2008) (possible factual dispute as to immaterial issues does not preclude summary judgment); Adams v. Gay, 270 Ga.App. 65, 66(1), 606 S.E.2d 26 (2004); OCGA § 9-11-56(c). [14] OCGA § 14-5-47. [15] See Carnes v. Smith, 236 Ga. 30, 32(1), 222 S.E.2d 322 (1976). [16] Id. See also Holiness Baptist Assn. v. Barber, 274 Ga. 357, 358, 552 S.E.2d 90 (2001). [17] See The Book of Discipline, Ch. 6, § I, Par. 2503, pp. 649-650 (2000 ed.). [18] Id. at p. 651. [19] (Emphasis supplied.) [20] See Carnes, supra at 39, 222 S.E.2d 322; Crumbley v. Solomon, 243 Ga. 343, 345, 254 S.E.2d 330 (1979). [21] Carnes, supra at 39, 222 S.E.2d 322. [22] See id.; Crumbley, supra. [23] (Citations and punctuation omitted.) Carnes, supra at 41(2), 222 S.E.2d 322. [24] See id. [25] See id. [26] See id.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342515/	672 S.E.2d 717 (2009) STATE of North Carolina v. Darren L. HUDGINS. No. COA08-441. Court of Appeals of North Carolina. February 17, 2009. 718 Attorney General Roy Cooper, by Associate Attorney General Jess D. Mekeel, for the State. Knight & Free, L.L.C., by Kenneth A. Free, Jr., Greensboro, for the defendant-appellant. STEELMAN, Judge. The arresting Officer had reasonable suspicion to investigate the defendant's activity, and thus the trial court properly denied defendant's motion to suppress the stop of defendant's vehicle and evidence procured as a result of that stop. I. Factual and Procedural Background On 10 September 2006, at approximately 2:55 a.m., Officer Palmenteri received a call from dispatch informing him that a man (hereinafter referred to as "caller") was driving his car and being followed. The caller did not identify himself to the dispatcher but stated that he was being followed by a man armed with a gun in the vicinity of Westover Terrace and Green Valley Drive in Greensboro. The caller remained on the line with dispatch and described the vehicle by make, model and color and provided various updates on his location. This information was relayed to Officer Palmenteri who advised the dispatcher to direct the caller to drive to Market Street so he could intercept them. Officer Palmenteri proceeded to Market Street where he observed vehicles that matched the description given by the caller stopped at a red light. Officer Palmenteri activated his lights and siren and approached the following vehicle. At this time, caller did not identify himself but exited his vehicle and identified the driver of the second vehicle as the man who had been following him. Officer Palmenteri directed the driver of the second vehicle to show his hands and removed Darren Lynn Hudgins (defendant) from his car. During this time, caller re-entered his vehicle and drove away. After a protective frisk of defendant, Officer Palmenteri determined there was probable cause to arrest defendant for driving while impaired. There was no weapon found in a search of the car incident to the arrest. On 10 May 2007, defendant filed a motion to suppress all evidence obtained as a result of the stop of his vehicle. On 30 May 2007, Judge Balog denied defendant's motion, finding that there was reasonable suspicion to stop the defendant's vehicle. On 16 July 2007, defendant pled guilty to driving while impaired, reserving his right to appeal the denial of his motion to suppress. Defendant now appeals that denial. II. Standard of Review Our standard of review of an order granting or denying a motion to suppress "is strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). "`[A] trial court's conclusions of law regarding whether the officer had reasonable suspicion [or probable cause] to detain a defendant is reviewable de novo.'" State v. Wilson, 155 N.C.App. 89, 93-94, 574 S.E.2d 93, 97 (2002), review denied, 356 N.C. 693, 579 S.E.2d 98 (2003), cert. denied, 540 U.S. 843, 124 S.Ct. 113, 157 L.Ed.2d 78 (2003) (internal quotation marks and citations omitted). "`[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. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (internal quotation marks and citations omitted). III. Motion to Suppress A. Findings of Fact We note at the outset that defendant does not assign error to any of the trial court's findings of fact. "Where ... the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal." State v. Roberson, 163 N.C.App. 129, 132, 592 S.E.2d 733, 735-36, (2004), cert. denied, 358 N.C. 240, 594 S.E.2d 199 (2004). We thus review the trial court's order only to determine whether the findings of fact support the legal conclusion that the circumstances provided Officer Palmenteri reasonable suspicion for the stop of defendant. 719 B. Reasonable Suspicion for the Stop In his sole argument on appeal, defendant contends that the trial court committed reversible error by denying his motion to suppress on the grounds that there was no reasonable suspicion to justify the stop of his vehicle. We disagree. Defendant contends that there were no indicia of reliability as to caller which would support the stop of his vehicle. He further questions whether there was any illegal activity which would support the stop. The entire argument is based upon the decision of the North Carolina Court of Appeals in State v. Maready, 188 N.C.App. 169, 654 S.E.2d 769 (2008), rev'd, 362 N.C. 614, 669 S.E.2d 564 (2008), which held, under facts very similar to the instant case, that there were not sufficient indicia of reliability in an anonymous tip to support a reasonable suspicion of criminal activity necessary to support the stop. In State v. Maready, 362 N.C. 614, 669 S.E.2d 564 (2008), our Supreme Court reversed this court's decision in Maready holding that there were sufficient indicia of reliability and other attendant circumstances to support a reasonable suspicion required to support the investigative stop. "[T]he police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if they lack probable cause...." United States v. Sokolow, 490 U.S. 1, 2, 109 S.Ct. 1581, 104 L.Ed.2d 1, 6 (1989) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In order to conduct an investigatory warrantless stop and detention of an individual, a police officer must have reasonable suspicion, grounded in articulable and objective facts, that the individual is engaged in criminal activity. State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (1979), cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979). "The reasonable suspicion must arise from the officer's knowledge prior to the time of the stop." State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). Reasonable suspicion has been applied to investigatory stops because a police officer is not required "to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612, 616 (1972). Instead, "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id. at 146, 92 S.Ct. at 1923, 32 L.Ed.2d at 617. Nonetheless, such an investigative stop does create the basis for a Fourth Amendment seizure. United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982). Further, "the very point of Terry was to permit officers to take preventative action and conduct investigative stops before crimes are committed, based on what they view as suspicious-albeit even legalactivity." United States v. Perkins, 363 F.3d 317, 326 (4th Cir.2004) (internal citations omitted) (emphasis in original), cert. denied, 543 U.S. 1056, 125 S.Ct. 867, 160 L.Ed.2d 781 (2005). Perkins went on to hold that "[w]e cannot afford to read the Fourth Amendment to require officers to wait until criminal activity occurs, and perhaps until innocent bystanders are physically harmed, before taking reasonable, preventative measures." Id. at 328. An informant's tip may provide the reasonable suspicion necessary for an investigative stop. State v. Sanchez, 147 N.C.App. 619, 623, 556 S.E.2d 602, 606 (2001), review denied, 355 N.C. 220, 560 S.E.2d 358 (2002). However, in cases where an informant's tip supplies part of the basis for reasonable suspicion, we must ensure that the tip possesses sufficient indicia of reliability. See Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254, 260 (2000); Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301, 307 (1990); Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612, 617 (1972). In weighing the reliability of an informant's tip, the informant's veracity, reliability, and basis of knowledge must be considered. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527, 543 (1983). Where the informant is known or where the informant relays information to an officer face-to-face, an officer can judge the credibility of the tipster firsthand and thus confirm whether the tip is sufficiently reliable to support reasonable suspicion. See 720 Adams, 407 U.S. at 146-47, 92 S.Ct. at 1923-1924, 32 L.Ed.2d at 617 (tip from known source); United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000) (face-to-face tip from unknown source), cert. denied, 531 U.S. 1098, 121 S.Ct. 830, 148 L.Ed.2d 712 (2001). Where a tip is anonymous, it must be accompanied by some corroborative elements that establish the tip's reliability. See J.L., 529 U.S. at 270, 120 S.Ct. at 1378, 146 L.Ed.2d at 260; White, 496 U.S. at 329-31, 110 S.Ct. at 2415-2417, 110 L.Ed.2d at 308-309. In determining whether the informant was anonymous or confidential and reliable the Court has adopted a "totality of the circumstances" test. Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30, 76 L.Ed.2d at 545. In Maready, the Supreme Court emphasized that the "overarching inquiry" in assessing reasonable suspicion is "the totality of the circumstances." Maready, 362 N.C. at 618-20, 669 S.E.2d at 567 (emphasis in original). It also reiterated that: Reasonable suspicion is a "less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Only "`some minimal level of objective justification'" is required. This Court has determined that the reasonable suspicion standard requires that "[t]he stop ... be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." Moreover, "[a] court must consider `the totality of the circumstances-the whole picture' in determining whether a reasonable suspicion" exists. Id. (quoting State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008) (citations omitted), cert. denied, ___ U.S. ___, 129 S.Ct. 264, 172 L.Ed.2d 198 (2008)). In Maready, an apparently distraught driver of a minivan advised deputies that they needed to check on the driver of a silver Honda Civic (Honda), which had been driving behind the minivan, because the Honda had been operated in an erratic manner. Deputies made an investigatory stop and discovered defendant to be impaired. In affirming the trial court's holding that reasonable suspicion existed to make the stop, the Supreme Court held that the following were indicia of reliability of the tip from the minivan driver: (1) the driver was operating the minivan immediately in front of the Honda and was able to provide a firsthand, eyewitness report; (2) the cautious driving and apparent distress of the driver of the minivan; (3) the driver of the minivan approached the deputies at a time and place near the scene of the alleged violations, giving little time to fabricate the allegations; (4) the minivan driver was not entirely unknown to the officers and placed her anonymity at risk because the officers could have written down the tag number of the minivan or detained the driver. Maready, 362 N.C. at 618-20, 669 S.E.2d at 567. The Supreme Court also held that there were other attendant circumstances supporting a reasonable suspicion that support the "`minimal intrusion' of a simple investigatory stop." Id. at ___, 669 S.E.2d at 568 (citing Illinois v. Wardlow, 528 U.S. 119, 126, 120 S.Ct. 673, 145 L.Ed.2d 570, 577 (2000)). In the instant case, there were indicia of reliability similar to those that existed in Maready: (1) the caller telephoned police and remained on the telephone for approximately eight minutes; (2) the caller provided specific information about the vehicle that was following him and their location; (3) the caller carefully followed the instructions of the dispatcher, which allowed Officer Palmenteri to intercept the vehicles; (4) defendant followed caller over a peculiar and circuitous route that doubled back on itself, going in and out of residential areas between 2 and 3 a.m.; (5) the caller remained on the scene long enough to identify defendant to Officer Palmenteri; (6) by calling on a cell phone and remaining at the scene, caller placed his anonymity at risk. There were also attendant circumstances, perceivable to Officer Palmenteri, that support a reasonable suspicion. The final route leading to the interception of the two vehicles was dictated by Officer Palmenteri, and when he arrived on Market Street, the vehicles were as described with defendant's vehicle behind that of caller. Under the rationale of Maready, we hold there were sufficient indicia of reliability, coupled with attendant circumstances to satisfy 721 the reasonable suspicion standard. We affirm the ruling of the trial court denying defendant's motion to suppress. We further note that the argument section of appellant's brief is single spaced in violation of Rule 28(j) of the Rules of Appellate Procedure. Further, appellant's brief contains no page numbers as required by Appendix B to the Rules of Appellate Procedure. In our discretion, we do not impose sanctions upon counsel pursuant to Rule 34. However, counsel is admonished that compliance with the Rules of Appellate Procedure is mandatory. AFFIRMED. Judges HUNTER, ROBERT C. and STROUD concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342519/	672 S.E.2d 772 (2009) James M. ERICKSON, Employee, Plaintiff, v. Lear SIEGLER, Employer, American Motorist Insurance, Carrier, Defendants. No. COA07-1420. Court of Appeals of North Carolina. March 3, 2009. 774 Brumbaugh, Mu & King, P.A., by Maggie S. Bennington, Jacksonville, for plaintiff-appellee. Wilson & Ratledge, PLLC, by Kristine L. Prati, Raleigh, for defendants-appellants. GEER, Judge. Defendants Lear Siegler and American Motorist Insurance appeal the opinion and award of the Full Commission concluding that plaintiff James M. Erickson's cervical spine condition was a compensable injury. Defendants have not disputed that plaintiff suffered a compensable back injury, but contend that any workers' compensation benefits should be limited to disability and medical expenses arising out of plaintiff's lower back condition rather than his cervical spine condition. We find unpersuasive defendants' contention that the Commission's jurisdiction was timely invoked only as to a lumbar spine condition and not as to a cervical spine condition. Since, in addition, the record contains competent expert testimony supporting the Commission's determination that the compensable workplace accident caused the cervical spine condition, we affirm the Commission's opinion and award as to the cervical spine condition. We must, however, remand for further findings of fact regarding plaintiff's average weekly wage. Facts At the time of the hearing before the deputy commissioner, plaintiff was 57 years old. Plaintiff had served in the United States Army for 26 years, retiring in 1993. In November 1999, plaintiff was hired by defendant Lear Siegler as a mechanic. After working with Lear Siegler for two years, plaintiff was assigned to repair military vehicles. On 6 June 2002, plaintiff was working on a water trailer and needed to change the axle. Plaintiff first removed the 150-pound wheel and hub and then removed the lug nuts and axle. After removing the axle, plaintiff stood up and turned to the right. As he turned, he felt a "pop" in his back and collapsed on the floor. Eventually, plaintiff stood back up, put away his tools, and went home for the day. The next morning, plaintiff could not get out of bed. He called Lear Siegler, told them what had happened the day before, and explained that he could not get out of bed. Plaintiff experienced pain from his "neck on down," including pain in his arms and legs. Plaintiff made an attempt to go to work the following Monday, 10 June 2002, but his supervisor informed him that he needed a note from a doctor before returning to work. Lear Siegler did not, however, refer plaintiff to any doctor for medical treatment. Plaintiff sought treatment at the Veterans Administration Hospital ("VA Hospital") on 11 June 2002. He was diagnosed with an exacerbation of lumbar disc disease and was 775 referred for an MRI. An MRI was not, however, performed at that time. On 14 June 2002, plaintiff returned to the VA Hospital for re-evaluation of his lower back pain. He was prescribed 500 milligrams of Naproxen, and seven days of bed rest was recommended. Plaintiff returned again to the VA Hospital on 24 June 2002, complaining of lower back pain and pain radiating in his arms and legs. During the course of his treatment at the VA Hospital, the medical providers never gave plaintiff a release to return to work. Plaintiff has not, in fact, worked at Lear Siegler since 6 June 2002. On 27 June 2002, defendants filed a Form 19 with the Industrial Commission. On 10 July 2002, defendants completed a Form 63Notice to Employee of Payment of Compensation Without Prejudiceacknowledging (1) plaintiff's "claim" for "injury on 06/06/2002" and (2) that defendant-employer had "actual notice of employee's injury" on 7 June 2002. Defendants stated in the Form 63 that plaintiff's disability began on 7 June 2002 and that the first payment had been made to him on 27 June 2002. After filing the Form 63, defendants did not subsequently deny the claim within the time specified by N.C. Gen.Stat. § 97-18(d) (2007) (providing, upon payment without prejudice, that "[i]f the employer or insurer does not contest the compensability of the claim or its liability therefor within 90 days from the date it first has written or actual notice of the injury or death, or within such additional period as may be granted by the Commission, it waives the right to contest the compensability of and its liability for the claim under this Article"). Defendants began directing plaintiff's medical treatment by arranging for plaintiff to be seen by Dr. Timothy R. Detamore at Carolina Neurosurgical Services, P.A. on 14 August 2002. Dr. Detamore, however, noted that there were no MRIs or x-rays of plaintiff's spine and requested that these tests be completed prior to his examination of plaintiff. On 12 September 2002, plaintiff returned to Dr. Detamore's office for a complete evaluation, complaining primarily of back and leg pain. Following the examination, Dr. Detamore diagnosed plaintiff as having cervical myelopathy, cervical radiculopathy, and lumbar radiculopathy. He ordered a myelogram and took plaintiff out of work until 4 October 2002, the date of plaintiff's next scheduled visit to Dr. Detamore's office. On 16 September 2002, plaintiff underwent pre-myelogram studies. The studies revealed degenerative disc disease at L5-S1, mild degenerative disc disease at C4-5 and C6-7, and a prior fusion at C5-6. Plaintiff's myelogram on 23 September 2002 revealed a prior fusion at C5-6 with unremarkable findings; broad disc bulges at C3-4, C4-5, and C6-7; and broad based disc bulges at L3-4, L4-5, and L5-S1. Defendants paid for these tests. When plaintiff returned to Dr. Detamore's office on 3 October 2002, the doctor recommended that plaintiff undergo an anterior cervical diskectomy, spondylectomy, osteophytectomy, bilateral foraminotomy, and partial corpectomy at the C3-4 and C4-5 levels. Dr. Detamore performed the surgery on 24 October 2002. At the time of plaintiff's surgery, defendants had not denied liability for plaintiff's neck condition. At some point after the surgery, however, defendants refused to cover the cost of the procedure. Dr. Detamore ultimately expressed the opinion that the workplace incident necessitated the surgery he performed. He explained: What [plaintiff] came to me for was complaints of pain which he said was in his low back and leg. The complaints of pain in my medical opinion was [sic] a combination of cervical myelopathy, cervical radiculopathy, spinal cord compression, and nerve root irritation which was brought on at the time of the lifting of this heavy weight. That's what caused those symptoms to become present even though he had the pre-existing condition of degenerative osteoarthritis. He added that when he examined plaintiff, plaintiff "did come to me with this complaint of a lumbar radicular complaint only. And yet on my examination, I found not as much of a problem with a[sic] lumbar radicular symptoms and signs on his examination. I found more of cervical both myelopathy and radiculopathy and that his focus was primarily on a[sic] lumbar radicular symptoms." 776 Dr. Detamore retired after plaintiff's surgery and transferred plaintiff's care to Dr. Carol Wadon, another doctor from Carolina Neurosurgical Services. When Dr. Wadon initially examined plaintiff on 7 November 2002, plaintiff complained of numbness in his arms and difficulty turning his head. Dr. Wadon recommended a cervical MRI that revealed evidence of post-operative changes at C3-4 and C4-5 with some persistent stenosis. Dr. Wadon recommended that plaintiff undergo further cervical surgery that was performed on 27 November 2002. On 17 January 2003, Dr. Wadon ordered an MRI that indicated mild multilevel spondylosis and degenerative disc disease most prominent at the L4-5 and L5-S1 levels. On 27 February 2003, Dr. Wadon determined that plaintiff had reached maximum medical improvement and assigned a 10% permanent partial impairment rating to his low back. Rather than recommend additional surgery, Dr. Wadon referred plaintiff to pain management. Dr. Wadon concluded that plaintiff's cervical problems were the result of degenerative changes. Defendants did not pay for the 27 November 2002 surgery, but they did pay for treatment provided by Dr. Wadon on 27 February 2003 as well as the 17 January 2003 diagnostic tests. Dr. Wadon referred plaintiff to Dr. Toni Harris at Eastern Carolina Pain Management for his low back and bilateral extremity pain. Dr. Harris diagnosed plaintiff with low back and bilateral lower extremity pain related to his workplace injury and neck and shoulder pain secondary to his fusion surgery. Dr. Harris treated plaintiff with epidural steroid injections for his back and a referral to physical therapy. Plaintiff was released from Dr. Harris' care on 15 October 2003. Dr. Harris determined that plaintiff had reached maximum medical improvement, and plaintiff was assigned a 5% permanent partial impairment rating to his low back. He recommended that plaintiff undergo a functional capacity evaluation. On 28 July 2004, plaintiff filed a Form 18, reporting an injury to his back and legs as a result of the incident on 6 June 2002. On 4 October 2004, the functional capacity evaluation recommended by Dr. Harris was performed. The results of that evaluation indicated that plaintiff was capable of performing sedentary work. On 21 October 2004, plaintiff filed a Form 33, Request for Hearing, alleging injury to his upper, middle, and lower back. Defendants filed a Form 33R and amended Forms 33R in response to plaintiff's request for hearing on 7 January, 11 January, and 9 March 2005 in which they notified the Commission that they refused to pay for plaintiff's neck treatment. In addition, on 9 March 2005, defendants submitted to the Commission a motion to dismiss for lack of jurisdiction, arguing that plaintiff had not timely filed a claim under N.C. Gen.Stat. § 97-24 (2007). On 21 June 2005, Dr. Jaylan R. Parikh at Orthopedic Solutions & Sports Medicine Center performed an independent medical evaluation of plaintiff. Dr. Parikh concluded that plaintiff's cervical spine condition was not related to his work injury on 6 June 2002. He believed that plaintiff's neck condition was a continuation of neck problems that plaintiff experienced prior to the workplace incident. In an opinion and award filed 24 February 2006, the deputy commissioner concluded that plaintiff had timely filed his claim and awarded plaintiff continuing temporary total disability benefits until such time plaintiff returned to work or until further order of the Commission. Additionally, the deputy commissioner ordered defendants to pay all medical expenses for plaintiff's cervical and lumbar spine injuries incurred as a result of the 6 June 2002 incident. Defendants appealed to the Full Commission, and, in an opinion and award filed 24 August 2007, the Commission affirmed the opinion and award of the deputy commissioner with modifications. Chairman Buck Lattimore dissented. The Full Commission chose to give greater weight to the opinion of Dr. Detamore over the contrary opinions of Dr. Wadon and Dr. Parikh and, therefore, found that "Plaintiff's workplace injury by accident on June 6, 2002 significantly contributed to the cervical spine condition for which Dr. Detamore treated Plaintiff and performed surgery." 777 The Commission then concluded, "[b]ased on the greater weight of the evidence, Plaintiff suffered a compensable injury to his neck and back on June 6, 2002, as a direct result of a specific traumatic incident of the work assigned to him by Defendant-Employer." The Commission further determined that plaintiff's claim for compensation for his neck injury was not barred by N.C. Gen.Stat. § 97-24. The Commission noted, in any event, that defendants had not disputed plaintiff's entitlement to continuing temporary total disability compensation for his lower back injury. It further concluded that although defendants had terminated vocational rehabilitation assistance to plaintiff on 26 October 2004, plaintiff would benefit from such assistance. The Commission awarded plaintiff continuing temporary total disability benefits from the date of his 6 June 2002 injury continuing until further order of the Commission and ordered defendants to pay "all medical expenses incurred or to be incurred in the future for Plaintiff's cervical and lumbar spine injuries when bills for the same have been submitted and approved according to procedures adopted by the Industrial Commission." Defendants timely appealed to this Court. I Defendants first contend the Full Commission erred in concluding that plaintiff's claim was not time barred under N.C. Gen.Stat. § 97-24 because plaintiff failed to file a claim for his neck injury with the Industrial Commission within two years of the accident. N.C. Gen.Stat. 97-24(a) provides: The right to compensation under this Article shall be forever barred unless (i) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission or the employee is paid compensation as provided under this Article within two years after the accident or (ii) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission within two years after the last payment of medical compensation when no other compensation has been paid and when the employer's liability has not otherwise been established under this Article. Failure to file a claim within the two-year period precludes the Industrial Commission from asserting jurisdiction over an employee's claim. Crane v. Berry's Clean-Up & Landscaping, Inc., 169 N.C.App. 323, 328, 610 S.E.2d 464, 467, disc. review denied, 359 N.C. 630, 616 S.E.2d 230 (2005). As this Court noted in Tilly v. High Point Sprinkler, 143 N.C.App. 142, 146, 546 S.E.2d 404, 406, disc. review denied, 353 N.C. 734, 552 S.E.2d 636 (2001), when, as here, "a party challenges the Commission's jurisdiction to hear a claim, the findings relating to jurisdiction are not conclusive [on appeal,] and the reviewing court may consider all of the evidence in the record and make its own determination on jurisdiction." Defendants concede that the Commission's jurisdiction was invoked when the Form 63 was filed on 10 July 2002, but argue that the Form 63 only invoked the Commission's jurisdiction over plaintiff's claim for his lumbar spine condition and not over his claim for his cervical spine condition. The Form 63 specifically acknowledged plaintiff's "claim" for "injury on 06/06/2002." Defendants did not purport to limit this claim to any particular body part or portion of the spine. Defendants, however, assert that "the Form 63 only related to the low back claim, as is evidenced by the totality of the record." Defendants cite no authority to support their attempt to limit the jurisdiction of the Commission, and we have found none. As the Supreme Court recently observed, "[w]e have previously explained the context of the workers' compensation claim: `The claim is the right of the employee, at his election, to demand compensation for such injuries as result from an accident.'" Gore v. Myrtle/Mueller, 362 N.C. 27, 34, 653 S.E.2d 400, 406 (2007) (quoting Biddix v. Rex Mills, Inc., 237 N.C. 660, 663, 75 S.E.2d 777, 780 (1953)). In addition, this Court has previously held that a claim for benefits "is sufficient under N.C. Gen.Stat. § 97-24 if it identifies the accident and injury at issue and expresses an intent to invoke the Commission's jurisdiction with respect to that injury." Crane, 169 N.C.App. at 329, 610 S.E.2d at 467. Here, the Commission's jurisdiction was invoked as to the accident on 6 June 2002, and plaintiff was entitled to seek compensation for such injuries as resulted from that accident. 778 This case involves a specific traumatic incident resulting in a back injury; the only dispute is over the portions of the back involved. We note that the evidence indicates that the cervical spine injury was not some new injury that arose long after the Form 63 was filed. Instead, this case from the beginning has involved a claim for a back injury, in which one of the expert witnesses ultimately determined that a cervical spine injury, as well as a lumbar spine injury, was contributing to the pain experienced by plaintiff following the accident. Such a determination must be made by a medical expert. See Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (explaining that "where the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury"). In this case, defendants chose to invoke the jurisdiction of the Commission without further investigating the source of plaintiff's low back pain. Those circumstances do not warrant limiting the jurisdiction of the Commission invoked by the Form 63. Under defendants' approach, an employee would be precluded from receiving compensation for not properly diagnosing his own injury and informing the defendant of that diagnosis. Such a result would be inconsistent with the principle recently affirmed by our Supreme Court in Gore, 362 N.C. at 36, 653 S.E.2d at 406 (internal quotation marks omitted), "that the Workers' Compensation Act requires liberal construction to accomplish the legislative purpose of providing compensation for injured employees, and that this overarching purpose is not to be defeated by the overly rigorous technical, narrow and strict interpretation of its provisions." In any event, even if plaintiff's cervical spine condition required the filing of its own claim, that claim falls within N.C. Gen. Stat. § 97-24(a)(ii), providing that a claim is timely when filed "within two years after the last payment of medical compensation when no other compensation has been paid and when the employer's liability has not otherwise been established...." The Commission found, with respect to § 97-24(a)(ii) that "[d]efendants paid for the following treatment by Dr. Detamore: the August 14, 2002 treatment was paid on October 29, 2002; the September 12, 2002 treatment was paid on October 28, 2002; the October 3, 2002 treatment was paid on April 1, 2003." This treatment included treatment for plaintiff's cervical spine condition. Plaintiff's 21 October 2004 Form 33, requesting a hearing on plaintiff's claim of injury to the "Upper/Middle/Lower Back, left & right legs," falls within two years of the payment of this medical compensation. See, e.g., McGhee v. Bank of Am. Corp., 173 N.C.App. 422, 426, 618 S.E.2d 833, 836 (2005) (holding that although plaintiff did not file her claim within two years of her accident, her claim was timely filed because it was filed within the two-year period following defendants' last payment of medical compensation to plaintiff). Defendants, however, contend that the payment of this compensation should not render plaintiff's claim timely as to the cervical spine aspect of his injury because "Defendants have never paid for any medical compensation related solely to Plaintiff's neck." (Emphasis added.) There is no dispute that the treatment provided by Dr. Detamore related, in part, to plaintiff's cervical spine. Defendants have cited no authority to support their proposition that N.C. Gen.Stat. § 97-24(a)(ii)'s previous medical compensation must be confined solely to one particular area of a larger injury. We, therefore, conclude that defendants have failed to demonstrate that plaintiff's claim is untimely under § 97-24(a)(ii). Finally, defendants argue that even if they did pay medical compensation to plaintiff, plaintiff nonetheless was still required to file his claim for the neck injury within two years of the date of the accident. Although this argument is contrary to the plain language of the statute, defendants cite Barham v. Kayser-Roth Hosiery Co., 15 N.C.App. 519, 521, 190 S.E.2d 306, 308 (1972), as support for their contention. Barham, however, construed a prior statute that did not include the language currently set out in N.C. Gen.Stat. § 97-24(a)(ii). Barham was, in fact, superceded by that statute. We, therefore, hold that the Commission was correct in concluding 779 that plaintiff's claim for compensation was not barred by N.C. Gen.Stat. § 97-24. II Defendants next contend the Full Commission erred in finding that plaintiff's neck condition was causally related to the 6 June 2002 accident. Defendants first argue that plaintiff's cervical condition did not arise out of his employment at Lear Siegler, and thus he is not entitled to compensation for that injury. As this argument dovetails with their second contention that plaintiff failed to prove the causation element of his claim because his expert's testimony was only speculation and conjecture, we address both arguments simultaneously. Apart from the issue of jurisdiction, appellate review of a decision of the Industrial Commission "is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law." Cross v. Blue Cross/Blue Shield, 104 N.C.App. 284, 285-86, 409 S.E.2d 103, 104 (1991). "The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C.App. 351, 353, 524 S.E.2d 368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). The Commission's findings of fact may be set aside only if there is a "complete lack of competent evidence to support them." Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). This Court reviews the Commission's conclusions of law de novo. Deseth v. LensCrafters, Inc., 160 N.C.App. 180, 184, 585 S.E.2d 264, 267 (2003). The Commission made the following findings with respect to whether plaintiff's cervical spine condition was caused by his workplace accident: 27. Both Dr. Parikh and Dr. Wadon opined that Plaintiff's cervical condition was due to degenerative conditions. Dr. Detamore opined that Plaintiff's complaints of pain resulted from a combination of cervical myelopathy, cervical radiculopathy, spinal cord compression, and nerve root irritation which was brought on by his workplace injury. The Full Commission gives greater weight to the opinions of Dr. Detamore over the contrary opinions of Dr. Wadon and Dr. Parikh and finds that Plaintiff's workplace injury by accident on June 6, 2002 significantly contributed to the cervical spine condition for which Dr. Detamore treated Plaintiff and performed surgery. Plaintiff began treatment with Dr. Detamore approximately six weeks after his workplace accident. Plaintiff did not treat with Dr. Wadon until approximately four and one half months later and Dr. Parikh performed the [independent medical examination] approximately three years later. Dr. Detamore was tendered as an expert in neurosurgery and he performed a complete evaluation of Plaintiff. 28. Based on the greater weight of the evidence, Plaintiff suffered a compensable injury to his neck and back on June 6, 2002, as a direct result of a specific traumatic incident of the work assigned to him by Defendant-Employer. The question before this Court is whether these findings of fact are supported by any competent evidence. In arguing that they are not supported, defendants first point to statements by plaintiff limiting his complaints to the lower back area and his testimony that he felt a pop in his back rather than a pop in his neck. It is, however, well established that questions of causation require expert testimony. See Click, 300 N.C. at 167, 265 S.E.2d at 391. Specifically, we believe that what sort of "pop" a particular injury would make or where an injury's symptoms would manifest themselves are questions that must be answered by an expert. Plaintiff, who is not a medical doctor, was not competent to diagnose himself, and his statements cannot render Dr. Detamore's testimony incompetent, especially when Dr. Detamore specifically recognized and considered the fact that plaintiff was complaining about only his lower back pain when he was evaluated by Dr. Detamore. Next, defendants argue that "[t]he overwhelming evidence shows that the plaintiff's cervical condition was not related to his workers' compensation injury." Although defendants acknowledge that the Commission 780 found Dr. Detamore's testimony entitled to greater weight than the testimony of Dr. Parikh and Dr. Wadon, upon which defendants rely, defendants argue that Dr. Detamore's testimony was not competent because he could not conclude to a reasonable degree of medical certainty that plaintiff's neck injury was the result of the workplace accident. This court has repeatedly held that a doctor is not required to testify to a reasonable degree of medical certainty. See Peagler v. Tyson Foods, Inc., 138 N.C.App. 593, 599, 532 S.E.2d 207, 211 (2000). See also Davis v. Columbus County Sch., 175 N.C.App. 95, 101, 622 S.E.2d 671, 676 (2005) (citing Peagler and stating that "[e]xpert testimony need not show that the work incident caused the injury to a reasonable degree of medical certainty"). All that is required is that it is "likely" that the workplace accident caused plaintiff's injury. See Cannon v. Goodyear Tire & Rubber Co., 171 N.C.App. 254, 264, 614 S.E.2d 440, 447 (explaining that "when expert testimony establishes that a work-related injury `likely' caused further injury, competent evidence exists to support a finding of causation"), disc. review denied, 360 N.C. 61, 621 S.E.2d 177 (2005); Workman v. Rutherford Elec. Membership Corp., 170 N.C.App. 481, 495, 613 S.E.2d 243, 252 (2005) (holding that expert's testimony that plaintiff's workplace injury "more likely than not" caused plaintiff's injury was sufficient to prove causation). In this case, Dr. Detamore testified that although he could not say to a reasonable degree of medical certainty whether the workplace accident caused plaintiff's neck injury, he "would have to say it is more likely" that the accident caused plaintiff's neck injury. This testimony met the required standard and, therefore, is sufficient to support the Commission's finding of a causal connection between the workplace accident and plaintiff's cervical spine condition. Defendants also argue that Dr. Detamore's deposition contained inconsistent testimony and that portions of it could be viewed as supportive of their position. As Judge Hudson stated in a dissenting opinion adopted by the Supreme Court in Alexander v. Wal-Mart Stores, Inc., 359 N.C. 403, 610 S.E.2d 374 (2005) (per curiam), it is not "the role of this Court to comb through the testimony and view it in the light most favorable to the defendant, when the Supreme Court has clearly instructed us to do the opposite. Although by doing so, it is possible to find a few excerpts that might be speculative, this Court's role is not to engage in such a weighing of the evidence." Alexander v. Wal-Mart Stores, Inc., 166 N.C.App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting). We will not second-guess the Commission's credibility and weight determinations and, therefore, we uphold the Commission's finding of causation. III Finally, defendants contend the Commission incorrectly calculated plaintiff's average weekly wage. The Commission found that "[p]laintiff's average weekly wage is $662.06, yielding a compensation rate of $441.40" pursuant to N.C. Gen.Stat. § 97-2(5) (2007). The Commission did not include in its opinion and award any explanation as to how it calculated plaintiff's average weekly wage. The average weekly wage consists of "the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury." N.C. Gen.Stat. § 97-2(5). Defendants argue that the Commission should have used the first method set out in N.C. Gen.Stat. § 97-2(5) for calculating the average weekly wagethe method applicable when an employee has worked 52 weeks prior to his injury without being absent from work for more than seven consecutive calendar days. Under this method, the average weekly wage is calculated by totaling the employee's earnings for the 52 weeks prior to the injury and dividing that sum by 52. Although the statute provides alternative methods for calculating an employee's average weekly wage, it is well settled that "`[w]hen the first method of compensation can be used, it must be used.'" Conyers v. New Hanover County Sch., 188 N.C.App. 253, ___, 654 S.E.2d 745, 750 (2008) (quoting Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 533, 251 S.E.2d 399, 402 (1979)). Plaintiff has not suggested that any method 781 other than the first method in § 97-2(5) should be used. Here, the parties stipulated that "[p]laintiff's average weekly wage will be determined by a Form 22." It appears to us that application of the first method in § 97-2(5) to the figures in the Form 22 would result in an average weekly wage of $538.33. Since we cannot determine how the Commission reached the conclusion that plaintiff's average weekly wage should be $662.06, we remand for further findings of fact regarding plaintiff's average weekly wage. See Boney v. Winn Dixie, Inc., 163 N.C.App. 330, 333, 593 S.E.2d 93, 96 (2004) (remanding to Commission where it did not clearly state the method used to calculate plaintiff's average weekly wage); Barber v. Going West Transp., Inc., 134 N.C.App. 428, 437, 517 S.E.2d 914, 921 (1999) (remanding to the Commission where there were no findings indicating how the average weekly wage was derived). Affirmed in part, remanded in part. Judges WYNN and CALABRIA concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342536/	672 S.E.2d 494 (2009) The STATE v. CULPEPPER. No. A08A2089. Court of Appeals of Georgia. January 13, 2009. 495 Jewel C. Scott, Dist. Atty., Anece Baxter White, Asst. Dist. Atty., for appellant. Walter M. Chapman, Savannah, for appellee. MIKELL, Judge. Elton Ray Culpepper was indicted on charges of trafficking in cocaine, possession of a firearm during the commission of a crime, possession of a firearm by a convicted felon, and possession of marijuana. Culpepper filed a motion to suppress, arguing that the search of his apartment violated his constitutional rights. The trial court entered an order granting Culpepper's motion to suppress, from which the state appeals, asserting that the officers' search of Culpepper's apartment, which resulted in the discovery of the contraband, was justified by exigent circumstances. Because there was some evidence to support the trial court's ruling, we affirm. We review a trial court's order on a motion to suppress under the "any evidence" standard, that is, we will not disturb such an order if there is any evidence to support it.[1] "[T]he trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. We construe all evidence presented in favor of the trial court's findings and judgment."[2] So construed, the evidence adduced at the suppression hearing showed that officer Anthony L. Thomas of the Clayton County Police Department received a radio dispatch concerning an armed robbery by two men, one carrying a handgun, reported to be taking place at an apartment at 1208 Chase Village Drive in Jonesboro. Thomas went to the scene and saw Culpepper enter the apartment in question and close the door. Not knowing whether Culpepper might be one of the robbers, Thomas called for backup. As he waited for backup to arrive, he saw Culpepper open the door to the apartment, whereupon Thomas asked him to show his hands, handcuffed him, determined that he was not armed, and detained him. Culpepper told Thomas that he lived in the apartment; that he was not one of the robbers; and that the robbers had left the apartment. Shortly thereafter, Culpepper's girlfriend emerged from an upstairs apartment and confirmed that Culpepper lived at the apartment and that he was not one of the robbers. She told Thomas that when the robbers entered the apartment, she fled the apartment and went upstairs to call 911. Thomas then released Culpepper. While Culpepper and the girlfriend remained outside the apartment, Thomas and another officer entered the apartment in order to sweep the apartment for suspects. Neither Culpepper nor his girlfriend gave the officers permission to search the apartment. Thomas testified at the suppression hearing that he heard no commotion or other sound inside the apartment that would have indicated the existence of an emergency inside the apartment. Upon entering the apartment, the officers found marijuana and drug paraphernalia in plain view. The officers then obtained a search warrant for the apartment and, upon 496 search pursuant to the warrant, found a large quantity of cocaine. In ruling on Culpepper's motion to suppress, the trial court found that Thomas was satisfied that Culpepper was a resident of the apartment and not one of the armed robbers, because Thomas released Culpepper and left him outside while Thomas went inside to conduct the search. The trial court also found that the officers searched the apartment without the consent of either Culpepper or his girlfriend; that Culpepper told Thomas that the perpetrators were no longer in the apartment; and that the officers heard no movement or other sound from inside the apartment that would have indicated that the robbers were still inside the apartment. Therefore, the trial court found that the officers did not have a reasonable belief that entry into the apartment was necessary. The state contends that the trial court erred in finding that the officers' sweep through the apartment was a warrantless search which was not justified by exigent circumstances. After construing all the evidence in favor of the trial court's findings, we find no error. "[A]bsent exigent circumstances or consent, an entry into a private home to conduct a search ... is unreasonable without a warrant."[3] In the case at bar, the officers had neither a warrant nor consent to enter Culpepper's residence. Thus, their warrantless entry must be justified, if at all, by exigent circumstances.[4] "Whether these circumstances exist is a question of fact to be determined by the trial court, and the judge's decision, if supported by any evidence, is to be accepted."[5] An exigent circumstance justifying the warrantless entry of a private residence is "the officer's reasonable belief that such action is a necessary response on his part to an emergency situation."[6] Such an emergency situation might exist "where an officer reasonably perceives that a suspect within the dwelling poses a risk of danger to the police or others."[7] The state asserts that, because Culpepper's girlfriend told the officer that her teenaged son was still in the apartment, the officer was justified in entering the apartment, because "[f]ear for the safety of a young child believed to be in harm's way is an example of an exigent circumstance."[8] But whether the officers possessed a reasonable belief, based on articulable facts, that Culpepper's apartment harbored a dangerous person was a judgment to be made by the trial court and not by this Court on appeal.[9] Here, the trial court determined that, because there was no commotion inside the apartment and because Culpepper, who had just emerged from the apartment, asserted that the robbers had fled, "the officer did not have a reasonable belief that entry into the apartment was necessary." The trial court's finding that the officers' entry into the apartment was unjustified was supported by some evidence, and the trial court did not err in granting Culpepper's motion to suppress.[10] We emphasize that we are not ruling that, as a matter of law, the police may never enter a dwelling without a warrant, following a report of an armed robbery in progress when someone asserts that the robbers have fled and the police hear no "commotion" inside the dwelling. We are obviously not ruling as a matter of law that the police may always enter a dwelling without a warrant if there was a report of an armed robbery in *497 progress and there might be a teenaged person inside the apartment. Indeed, as in so many appeals of a ruling on a motion to suppress, we are not making any ruling whatsoever as a matter of law. We are merely affirming a factual decision made by the trial court. In the case at bar, we might well have affirmed, even if the trial court had ruled for the state. Our decision would be entirely different if, for example, the alleged occupant of the apartment had expressly forbidden the police to enter[11] or if the police used the "armed robbery in progress" report as an excuse for a warrantless search of the apartment three hours later. We recognize that whether or not to enter immediately, without a warrant, is a tough call for the police officers on the spot. We also acknowledge that the trial court has to make a tough call in deciding with hindsight whether exigent circumstances existed. But the task of this Court on appellate review of the trial court's ruling is not such a tough call: we look to see if the record contains any evidence to support the trial court's decision, and if it does, we affirm, whether or not we would have come to the same conclusion as did the trial court.[12] Judgment affirmed. SMITH, P.J., and ADAMS, J., concur. NOTES [1] State v. Gray, 285 Ga.App. 124, 645 S.E.2d 598 (2007). [2] (Footnote omitted.) Id. [3] (Citations omitted.) Curry v. State, 271 Ga. App. 672, 675(2), 610 S.E.2d 635 (2005). Accord Love v. State, 290 Ga.App. 486, 487, 659 S.E.2d 835 (2008). [4] See Boldin v. State, 282 Ga.App. 492, 495(3), 639 S.E.2d 522 (2006). [5] (Punctuation and footnote omitted.) Id. [6] (Citation and punctuation omitted.) King v. State, 217 Ga.App. 889, 891, 459 S.E.2d 605 (1995) (whole court). [7] (Citations omitted.) Love, supra at 488, 659 S.E.2d 835. [8] (Footnote omitted.) Leon-Velazquez v. State, 269 Ga.App. 760, 762(1), 605 S.E.2d 400 (2004). [9] See Gray, supra at 128(2), 645 S.E.2d 598. [10] See id. [11] See Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), affirming State v. Randolph, 278 Ga. 614, 604 S.E.2d 835 (2004). [12] Of course, if the record manifestly shows that the trial court made its factual finding while under a mistaken view of the law, we would reverse. See generally Robinson v. State, 295 Ga.App. 136, 670 S.E.2d 837 (2008) (Mikell, J., concurring specially).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342551/	672 S.E.2d 456 (2009) COURSEY v. The STATE. No. A08A1921. Court of Appeals of Georgia. January 8, 2009. 457 Larkin M. Lee, for appellant. Newton & Howell, Griffin E. Howell III, Griffin, for appellee. BARNES, Judge. Kenneth Coursey appeals his conviction for driving under the influence, challenging the validity of the roadblock where he was stopped. Coursey argues that the trial court erred in denying his motion to suppress because the roadblock was not conducted properly or in the location approved by the supervisor. Finding no error, we affirm. In considering an appeal from a denial of a motion to suppress, this Court construes 458 the evidence in favor of the trial court's ruling, and we review de novo the trial court's application of the law to undisputed facts. Additionally, we must defer to the trial court's determination on the credibility of witnesses, and the trial court's ruling on disputed facts must be accepted unless it is clearly erroneous. (Citation omitted.) Lindsey v. State, 287 Ga.App. 412, 651 S.E.2d 531 (2007). The evidence at the motion to suppress hearing showed that the Griffin Post Commander for the Georgia State Patrol authorized the roadblock in Spalding County where Coursey was stopped. The Sergeant, who had the authority to initiate roadblocks, filled out a Supervisory Initiation of Roadblock Approval Form which set out the purposes, location, and times of several roadblocks, including this one at Searcy Avenue. In addition to state troopers, the Sergeant invited officers from other jurisdictions to participate in the roadblock. The Sergeant testified that he and his team held a briefing and went over "a lot of details" with the troopers as well as the officers from other jurisdictions. Although he did not remember the specifics of the briefing, the Sergeant believed he told the participants the "primary purpose" of the roadblock, which was to look for driving offenses and safety factors. According to the Approval Form, the roadblock was for the "legitimate primary purpose of improving driving safety," and specifically to perform routine traffic checks to verify driver's licenses, insurance, and registration; check for seat belt compliance; determine driver impairment; and assess vehicle fitness and safety compliance. The Sergeant also checked "location of dangerous felon likely to take designated route," although the evidence established that no dangerous felons were in the area at the time. The Sergeant did not hand out copies of the roadblock initiation form to the troopers and officers who were to conduct the roadblock and did not accompany them to the roadblock on Searcy Avenue. The Sergeant was stationed as a supervisor at another location. An officer with the Griffin Police Department who was assigned to the roadblock testified that the roadblock was clearly identified and that all vehicles coming through it were stopped. The officer testified that he attended a briefing before the roadblock, and while he could not exactly remember the "points" of the briefing he knew what he was out there to do: "checking for licenses and insurance and possible drunk drivers and the typical things you check in roadblocks." When describing the location of the roadblock, the officer testified that it was conducted at the intersection of Searcy Avenue and Highway 155 but the actual location of the roadblock was on Highway 155. The officer also drew a diagram for the court showing the location of the roadblock in the intersection. A roadblock in Georgia is valid when it meets five requirements: (1) supervisory officers decided where and when to implement it for a legitimate purpose; (2) all vehicles were stopped; (3) the delay to motorists was minimal; (4) the operation was well-identified as a police checkpoint; and (5) the screening officer was competent to determine which motorists should be given field tests for intoxication. Baker v. State, 252 Ga.App. 695, 702(1), 556 S.E.2d 892 (2001). Coursey contends that the first requirement was not met for the initiation of the roadblock on Searcy Avenue for two reasons. 1. First, Coursey argues that the State presented insufficient evidence to establish that the officers conducting the roadblock were aware of its primary purpose. We disagree. A roadblock is unconstitutional if it is established for the primary purpose of obtaining evidence of "ordinary criminal wrongdoing." State v. Morgan, 267 Ga.App. 728, 731, 600 S.E.2d 767 (2004). We consider all the available evidence to determine the roadblock's primary purpose. Id. Roadblocks set up to enhance roadway safety such as this one at which officers were checking for valid driver's licenses and insurance, seat belts, and impaired driversserve a "legitimate primary purpose." Kellogg v. State, 288 Ga.App. 265, 268(1), 653 S.E.2d 841 (2007). Coursey argues that the officers in the field were unaware of the roadblock's primary purposes and therefore its purpose could not be legitimate. The evidence *459 showed that the officers were briefed before the roadblock, and the field officer testified about the specific, legitimate tasks he undertook at each stop. Further, as the trial court noted, when the officer testified, he was specific in his answers regarding the roadblock's purpose and only assented in response to Coursey's question whether the roadblock was set up for general law enforcement purposes. The purposes about which the field officer testifiedchecking for valid licenses, insurance, impaired drivers, and safety concerns were consistent with the purposes set forth in the initiation form. The trial court's finding that the roadblock was conducted for a legitimate primary purpose is not clearly erroneous. 2. Coursey also argues that the field officers did not conduct the roadblock at a location approved by the Sergeant, because the roadblock was set up on Highway 155 at its intersection with Searcy, and not on Searcy itself as indicated on the form. This difference in location is insignificant and does not invalidate the roadblock because supervisory personnel need not direct the precise location for a roadblock, so long as supervisory personnel and not field officers decided to implement the roadblock. Hardin v. State, 277 Ga. 242, 244(3), 587 S.E.2d 634 (2003). See also Cater v. State, 280 Ga.App. 891, 892(1), 635 S.E.2d 246 (2006). Accordingly, the trial court did not err in denying Coursey's motion to suppress. Judgment affirmed. JOHNSON, P.J., and PHIPPS, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342494/	381 S.C. 205 (2009) 672 S.E.2d 784 Elizabeth M. McCULLAR and J.W. McCullar, Respondents, v. The ESTATE OF Dr. William Cox CAMPBELL and Palmetto Health Alliance d/b/a Palmetto Health Baptist, of whom the Estate of Dr. William Cox Campbell is the Petitioner. No. 26589. Supreme Court of South Carolina. Heard December 2, 2008. Decided January 26, 2009. Rehearing Denied March 5, 2009. 206 Kay G. Crowe and J. Todd Kincannon, both of Barnes, Alford, Stork & Johnson, of Columbia, for Petitioners. Kevin Hayne Sitnik, McGowan, Hood & Felder, of Columbia, for Respondents. PER CURIAM: We granted certiorari to consider a Court of Appeals decision which reversed a circuit court order dismissing this medical malpractice suit brought against the estate of a deceased doctor (Estate) for lack of subject matter jurisdiction. McCullar v. Estate of Cox, Op. No. 2006-UP-332 (S.C. Ct.App. filed September 20, 2006). We reverse. We agree with the Court of Appeals that there is no subject matter jurisdiction issue here, and thus both the Estate and the circuit court erred in relying on Rule 12(b)(1), SCRCP. In our opinion, however, the Court of Appeals erred in failing to exercise its discretion under Rule 220(c), SCACR, to affirm the circuit court's dismissal on another ground appearing in the record. Subject matter jurisdiction is defined as "the power of a court to hear and determine cases of the general class to which the proceedings in question belong." Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994) (internal citation omitted). Tort suits are within the circuit court's jurisdiction. Sabb v. South Carolina State Univ., 350 S.C. 416, 567 S.E.2d 207 231 (2002). Here, on its face, this complaint alleges a tort and therefore is not subject to dismissal for lack of subject matter jurisdiction. The Court of Appeals cited cases holding the capacity of parties to sue or be sued is not a question of subject matter jurisdiction. It is true that whether a party is a "real party in interest" is not a matter of subject matter jurisdiction,[1] nor is the issue of a party's capacity to sue.[2] What is at issue here, however, is not capacity, standing, or party in interest, but something much more fundamental: whether, at the time the suit was purportedly commenced, there existed a juridical entity known as "Estate of Dr. William Cox Campbell." Since it is undisputed that Dr. Campbell's Estate was closed months before this action was allegedly commenced by the then pro se respondents, the answer is "no." The general rule, cited by this Court in a suit brought by a nonexistent plaintiff, is: [I]f there is a lack of legal entity, the whole action fails . . . . If an action is brought in the name of that which under the lex fori has no legal entity, it is as if there was no plaintiff in the record and therefore no action before the Court . . . Although an action brought in the name of that which has no legal entity is a nullity, an action in which a legally existing plaintiff has been misnamed is still a true action, to which the court can give full effect, subject only to defendant's right to object at the threshold for misnomer.. . . Commercial & Savings Bank of Lake City v. Ward, 146 S.C. 77, 143 S.E. 546 (1928) (Ward) (internal citation omitted) (emphasis in original); see also Blackwood v. Spartanburg Commandery No. 3, Knights Templar, 185 S.C. 56, 193 S.E. 195 (1937) overruled in part on other grounds Scovill v. Johnson, 190 S.C. 457, 3 S.E.2d 543 (1939,) citing the Ward rule with approval in a defendant misnomer case. We reverse the decision of the Court of Appeals because an action brought against a nonexistent defendant is a nullity. *208 While the Estate sought unsuccessfully to characterize this fundamental defect as a Rule 12(b), SCRCP, issue, a fair reading of the record and the circuit court's ruling is that the dismissal rests on the lack of a defendant. The Estate raised this issue promptly,[3] the defect is fatal to Respondents' suit,[4] and the action was properly ended by the circuit court.[5] Accordingly, the decision of the Court of Appeals reinstating this lawsuit is REVERSED. TOAL, C.J., WALLER, PLEICONES, BEATTY, JJ., and Acting Justice JAMES E. MOORE, concur. NOTES [1] Bardoon Props., NV v. Eidolon, 326 S.C. 166, 485 S.E.2d 371 (1997). [2] Chet Adams Co. v. James F. Pedersen Co., 307 S.C. 33, 413 S.E.2d 827 (1992). [3] The lawsuit was filed on December 21, 2004, and the motion to dismiss was filed January 26, 2005. [4] Ward, infra. [5] We hesitate to say "dismissed" as there was "no action before the Court . . ." to be dismissed. Ward, supra.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264099/	33 Cal.App.4th 623 (1995) 39 Cal. Rptr.2d 463 THE PEOPLE, Plaintiff and Respondent, v. FREDRICK DEBRIGADIER JOHNSON, Defendant and Appellant. Docket No. F020694. Court of Appeals of California, Fifth District. March 28, 1995. 625 COUNSEL John Ward, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Shirley A. Nelson and Stan Cross, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[]] OPINION MARTIN, Acting P.J. Defendant was charged by amended information as follows: counts I and II separate incidents of forcible rape (Pen. Code, § 261, subd. (a)(2))[1] and count III attempted forcible oral copulation (§§ 288a, subd. (c), 664). It was further alleged as to each count that defendant had been convicted of and served prison terms for two prior sex offenses (§ 667.6, subd. (b)) and had been convicted of two prior serious felonies (§ 667, subd. (a)). The information also alleged the offenses charged in counts I and II were serious felonies (§ 1192.7, subd. (c)(3)). On October 19, 1993, the court granted defendant's motion to bifurcate the prior conviction allegations and a jury trial commenced. The jury found defendant guilty on all counts. Defendant then waived his right to a jury trial on the prior conviction allegations. On October 25, 1993, the court granted a motion to amend counts I and II of the amended information with respect to the section 667.6, subdivision (b) allegations. The amendments reflected defendant had been convicted of a violation of section "261, Subsection 2, rape by force or fear on or about ... April 13th, 1987 ... in the Superior Court of the State of California, for the County of Kern," and that defendant had been convicted of a violation of "Arizona Revised Statute 1340[6] ... to wit, sexual assault, on or about ... September 3rd, 1981...." On the same date, the court found all of the special allegations to be true. At the sentencing hearing, the court denied defendant probation and sentenced him to state prison for a total term of 36 years. The court imposed the upper term of eight years on count I, a consecutive eight-year upper term on count II, two consecutive ten-year enhancements pursuant to section 667.6, subdivision (b), and a concurrent four-year upper term on count III. 626 The court granted a total of 224 days of custody credits and ordered defendant to pay a $200 restitution fine (Gov. Code, § 13967, subd. (a)). Defendant filed a timely notice of appeal. FACTS Since defendant has limited his appeal to sentencing issues, the following facts are taken from the report of the probation officer filed November 30, 1993: "On July 3, 1993, officers of the Bakersfield Police Department were contacted by Claudia Denise [P.], age 18, who advised that she had been raped, on June 26, 1993, by the defendant, Fredrick Debrigadier Johnson. The victim related that the defendant resided in the same apartment complex and that prior to June 26, 1993, she had never spoken to the defendant other than saying hello to him as they passed one another. The victim stated she was aware of his name from conversations with his wife, Sheila Hill. "Ms. [P.] stated that on June 26, 1993, she had been talking to Sheila Hill and that during the conversation, Sheila had indicated the defendant was a manager of a Taco Bell Restaurant. The victim stated that she told Sheila she was employed with the Rally Hamburger chain and that since she had experience working in fast food, she wondered if the defendant might be able to help her get a second job. Sheila Hill indicated that she would tell the defendant about Ms. [P.'s] interest in a second job. "Claudia [P.] stated that at approximately 9:00 p.m. on the same date, the defendant came to her apartment asking if he could borrow some aspirin and asking if she was really looking for a second job. Ms. [P.] stated that she invited the defendant into her apartment while she obtained the aspirin and that at this time, the defendant had her write down her name, Social Security number, date of birth and description of her current job at Rally's. The defendant subsequently left her apartment returning 15 to 20 minutes later with a job application. Claudia [P.] stated that she noticed the application had `Lloyd's' on the top and that the defendant had stated he did not have a Taco Bell application with him, but that this old application was sufficient as it contained the basic information. Claudia [P.] stated that she filled out the application and that the defendant waited in her apartment while she did so. Upon the victim handing the application over to the defendant, he proceeded to grab her around the neck, forcing her backward on the couch and he began choking her. Claudia [P.] stated that the defendant choked her until she lost consciousness. "The victim stated that when she regained consciousness she was lying flat on her back in her bed and the defendant was on top of her and taking 627 her shirt off. Claudia stated that she said something to the effect of `What are you doing?' and that the defendant told her to shut up or he would kill her. The defendant continued removing her shirt and proceeded to grab her around the neck with one of his hands and again began choking her. The victim stated that while the defendant held the one hand on her neck, holding her down onto the bed, he proceeded to remove the rest of her clothing. The defendant then forced her legs open and began having vaginal intercourse for two to three minutes. Claudia [P.] stated that she tried to resist the defendant, but every time she started to move, he would apply pressure to her neck. Claudia [P.] stated that at one point she started to scream and the defendant covered her mouth with his hands stating, `Shut up or I'll kill you.' "Ms. [P.] stated that the defendant forced her to have intercourse with him for two to three minutes and she was unsure whether or not the defendant had ejaculated. Ms. [P.] stated that the defendant subsequently began putting his clothing back on and proceeded to grab her by the arm, pulling her up from the bed and telling her to take a shower and to wash herself off. The defendant led her by the arm to the bathroom, again ordering her to get into the shower and wash off. The victim stated that as she showered, the defendant was walking around the apartment and telling her that if she told anyone, he would kill her. ".... .... .... .... .... .... .... "Claudia [P.] told the officers that she was terrified of the defendant which is why she waited seven days to report the offense. Ms. [P.] stated that on July 1, 1993, the defendant drove by her place of work and within a short period of time one of her co-workers told her she had a telephone call. Ms. [P.] stated that when she answered the phone there was a voice on the other end stating, `Remember what I told you. I'll kill you if you tell anyone.' Ms. [P.] proceeded to quit her job on July 2, 1993." DISCUSSION I. DID THE TRIAL COURT PROPERLY ENHANCE DEFENDANT'S SENTENCE? (1a) Defendant contends the 20-year enhancement of his sentence must be stricken because, in his view, section 667.6, subdivision (b) does not authorize the use of foreign convictions such as his 1987 Arizona conviction for sexual assault. At the time of the instant offenses, section 667.6 stated in relevant part: "(a) Any person who is found guilty of violating subdivision (2) or (3) of Section 261 [rape], Section 264.1 [rape by foreign object], subdivision (b) of 628 Section 288 [lewd or lascivious acts with child under age 14], Section 288.5 [continuous sexual abuse of a child], Section 289 [penetration of genital or anal openings by foreign object], or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person who has been convicted previously of any of those offenses shall receive a five-year enhancement for each of those prior convictions provided that no enhancement shall be imposed under this subdivision for any conviction occurring prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction.... "(b) Any person convicted of an offense specified in subdivision (a) who has served two or more prior prison terms as defined in Section 667.5 for any offense specified in subdivision (a), shall receive a 10-year enhancement for each of those prior terms provided that no additional enhancement shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction...." (Stats. 1989, ch. 1402, § 7, p. 6156.) Defendant argues on appeal: "The trial court erred in using appellant's Arizona conviction as part of this enhancement because section 667.6(b) does not authorize the use of foreign convictions. Section 667.6(b) provides in pertinent part: `Any person convicted of an offense specified in subdivision (a) who has served two or more prior prison terms as defined in Section 667.5 for any offense specified in subdivision (a), shall receive a 10-year enhancement for each of those prior terms....' (Italics added.) Thus, by its language, section 667.6(b) is limited to ... those crimes listed in subdivision (a) of Penal Code section 667.6.... Section 667.6(a), however, does not contemplate the use of foreign convictions, but rather specifically limits itself to certain violations of the California Penal Code. The offenses contained in section 667.6(a) are as follows: `[P]aragraph (2), (3), or (7) of subdivision (a) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 288.5 or 289, of committing sodomy in violation of subdivision (k) of Section 286, of committing oral copulation in violation of subdivision (k) of Section 288a, or of committing sodomy or oral copulation in violation of Section 286 or 629 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim o[r] another person.'[[2]] "In light of the plain meaning of the foregoing statutory provisions, it is clear that foreign offenses such as appellant's Arizona prior do not qualify as prior convictions for purposes of section 667.6(b)." In propounding this argument, defendant ignores the provisions of section 668 which provided at the time of the offenses: "Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this state, such person could have been punished under the laws of this state by imprisonment in a state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if such prior conviction had taken place in a court of this state." (Stats. 1976, ch. 1139, § 269, p. 5139.) Defendant concedes Arizona's crime of sexual assault (Ariz. Rev. Stat. Ann., §§ 13-1401, 13-1406) is the equivalent of forcible rape (§ 261, subd. (a)(2)) in California. He nevertheless maintains section 667.6, subdivision (b) does not clearly authorize the use of foreign convictions for enhancement purposes. In contrast, the People contend California felony prior convictions and "foreign" felony prior convictions are identical for enhancement purposes under section 668. In People v. Lang (1989) 49 Cal.3d 991, 1038-1039 [264 Cal. Rptr. 386, 782 P.2d 627], certiorari denied 498 U.S. 881 [112 L.Ed.2d 178, 111 S.Ct. 224], the Supreme Court held section 668 defines the circumstances under which prior convictions may be used to enhance punishment for subsequent offenses. According to our Supreme Court, section 668 illustrates that when the Legislature intends to impose restrictions on the use of out-of-state convictions, it expresses that limitation clearly. In the absence of limitation, a reference to "prior felony convictions" is deemed to include any prior conviction which was a felony under the laws of the convicting jurisdiction. (See also People v. Pensinger (1991) 52 Cal.3d 1210, 1261 [278 Cal. Rptr. 640, 805 P.2d 899], cert. den. 502 U.S. 930 [116 L.Ed.2d 290, 116 S.Ct. 351].) Defendant nevertheless contends section 667.6, subdivision (b) contains limiting language which precluded the trial court from imposing an enhancement based on an out-of-state conviction: "[B]y its language, section 667.6(b) is limited to ... those crimes listed in subdivision (a) of Penal Code section 667.6.... Section 667.6(a), however, does not contemplate the use of foreign convictions, but rather specifically limits itself to certain violations of the California Penal Code.... 630 ".... .... .... .... .... .... .... "In contrast to section 667.6(b), the [L]egislature has demonstrated that it is quite capable of drafting prior enhancement statutes that clearly authorize the use of foreign convictions. For instance, in Penal Code section 667, the [L]egislature specifically provided that `any person convicted of a serious felony who has previously been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony....' (Pen. Code, § 667, subd. (a) [italics added].) Comparable language is contained in Penal Code section 667.5, subdivision (f). Because the Legislature did not include similar language in section 667.6(b), this omission strongly suggests that foreign convictions were not intended to be used under that section." Defendant's reasoning is adapted from People v. Burgio (1993) 16 Cal. App.4th 769 [20 Cal. Rptr.2d 397]. In Burgio, the Los Angeles County Superior Court found the defendant guilty of four methamphetamine-related substantive offenses as well as several methamphetamine-related enhancements. He appealed from the judgment, claiming error in the imposition of a 10-year enhancement pursuant to Health and Safety Code section 11379.8 and a concurrent 3-year sentence for a prior foreign conviction for conspiracy to possess and distribute narcotics. The latter conviction occurred in the United States District Court for the Eastern District of New York. The trial court imposed the concurrent three-year enhancement pursuant to Health and Safety Code section 11370.2, which stated in pertinent part: "(b) Any person convicted of a violation of, or conspiracy to violate, Section ... 11379.6 ... shall receive, in addition to any other punishment authorized by law ... a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." On appeal, defendant argued the trial court exceeded its jurisdiction because his New York federal conviction was not one of the enumerated priors upon which the court could legally impose the enhancement. A divided panel of the Second District Court of Appeal found this argument persuasive and struck the concurrent three-year enhancement. The People argued that imposition of a three-year enhancement under Health and Safety Code section 11370.2 for the prior foreign felony conviction was supported by California Constitution, article I, section 28, subdivision (f). Under that constitutional provision, "[a]ny prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding." The Second District 631 acknowledged that provision had been held to apply to any person convicted of a prior felony, here or in any other jurisdiction, as long as the statutory elements of the out-of-state offense are the same as for a California felony offense. However, the reviewing court also observed the cases construing that constitutional provision dealt with sections 667, subdivision (a) and 667.5, subdivision (f). Those statutes specifically state certain foreign felonies may form the basis of enhancements under those statutes. The Second District held Health and Safety Code section 11370.2 lacked comparable language. Moreover, Health and Safety Code section 11370.2 specifies the kind of prior felony convictions that may be used, which are limited entirely to violations of specified sections of the Health and Safety Code of California. The court concluded: "Had the Legislature intended otherwise, it would have specified the offenses by description and not by numbered California statutes." (People v. Burgio, supra, 16 Cal. App.4th at p. 779.) Defendant here analogizes the principles of Burgio to the instant case and concludes that foreign convictions are outside the purview of section 667.6, subdivision (b): "The fact that section 667.6(b) makes reference to Penal Code section 667.5 ... does not distinguish this case from Burgio. While subdivision (f) of section 667.5 specifically provides for the use of foreign convictions, section 667.6(b) quite clearly does not incorporate this portion of section 667.5. Rather, section 667.6(b) specifically limits its adoption of section 667.5 to that statute's definition of the phrase `prior prison term' (see § 667.5, subds. (g) & (h)), and thus cannot be reasonably be [sic] interpreted as also adopting the separate and distinct definition of the term `prior conviction' found in section 667.5, subdivision (f)." The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. To determine this intent, a reviewing court begins by examining the language of the statute. However, the language of a statute will not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. Thus, the intent prevails over the letter and the letter will, if possible, be read so as to conform to the spirit of the act. (People v. Pieters (1991) 52 Cal.3d 894, 898-899 [276 Cal. Rptr. 918, 802 P.2d 420].) Broadly speaking, a specific provision relating to a particular subject will govern in respect to that subject as against the general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate. However, it is well settled the statutes and codes blend into each other and are to be regarded as constituting but a single statute. One should seek to consider the statutes not as antagonistic laws but as parts of the whole system which must be harmonized and effect given to every section. Accordingly, statutes which are in pari materia should be read together and harmonized if possible. Many times 632 one statute merely deals generally with a particular subject while the other legislates specially upon the same subject with greater detail and particularity. In such cases, the two will be reconciled and construed so as to uphold both of them if it is reasonably possible to do so. The rule of strict interpretation of penal statutes does not apply in California. The provisions of the Penal Code are to be construed according to the fair import of their terms with a view to effect its objects and to promote justice. (§ 4.) This concept also applies to the penal provisions of other codes. However, where two interpretations of a penal statute are possible, that construction which favors the defendant is preferred unless such a construction is contrary to the public interest, sound sense, and wise policy. (People v. Squier (1993) 15 Cal. App.4th 235, 240-241 [18 Cal. Rptr.2d 536].) (2) Section 667.6 provides for the imposition of additional terms of imprisonment for a recidivist who has sustained a denominated felony conviction after having been previously convicted of the same or another denominated felony in the past. (People v. Jones (1993) 12 Cal. App.4th 1106, 1115 [16 Cal. Rptr.2d 60].) By enacting section 667.6, the Legislature chose to treat violent sex offenses and violent sex offenders in a manner differently than other types of offenses and offenders. The statute is directed at recidivism by providing for longer enhancements for prior convictions of the same type of offense. The statute is directed at multiplicity of offenses by providing for full, separate, consecutive sentencing. (People v. Karsai (1982) 131 Cal. App.3d 224, 240-243 [182 Cal. Rptr. 406], disapproved on another point in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8 [250 Cal. Rptr. 635, 758 P.2d 1165].) (1b) In the instant case, defendant asks this court to strictly construe section 667.6 and apply its provisions only to violations of enumerated California code sections. We will decline defendant's exhortation. Giving the language of section 667.6 a literal meaning would result in absurd consequences which the Legislature could not have intended. According to defendant, one who commits comparable violent sex offenses in another jurisdiction would be exempt from the five-year and ten-year enhancements set forth in section 667.6. Such a construction would be directly contrary to the express purposes of section 667.6, i.e., attacking the recidivism of violent sex offenders by providing for longer enhancements for prior convictions of the same type of offense, irrespective of where, or in which jurisdiction, the prior crimes were perpetrated. (People v. Karsai, supra, 131 Cal. App.3d at p. 242.) Moreover, defendant's construction would treat violent sex offenders from other jurisdictions far more lightly than those who committed past and present offenses within the State of California. Further, defendant's construction essentially ignores the express language of section 668, which prescribes punishment for subsequent California crimes 633 committed by persons with prior foreign convictions. In addition, the California Supreme Court has taken a very broad view of what constitutes a "prior felony conviction." (People v. Prather (1990) 50 Cal.3d 428, 432-440 [267 Cal. Rptr. 605, 787 P.2d 1012] [California Constitution bars application of the double-base-term limitation of section 1170.1, subdivision (g) to sentence enhancements based on section 667.5, subdivision (b)].) In our view, defendant's construction is contrary to the public interest, sound sense, and wise policy. Nor have we found, nor has defendant cited, any expression of legislative intent, or other citation, which comports with his contention. As noted above, statutes which are in pari materia should be reconciled and construed so as to uphold both of them if it is reasonably possible to do so. (People v. Squier, supra, 15 Cal. App.4th at pp. 240-241.) Here, it is reasonably possible to reconcile and construe sections 667.6 and 668 so as to uphold both of them. Section 667.6 prescribes enhancements for prior sex offenses enumerated by California Penal Code section numbers. The relevant version of section 668 expressly prescribed punishment of persons with prior foreign convictions "for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if such prior conviction had taken place in a court of this state." To do otherwise would result in the absurd consequence of exempting violent sex offenders with prior foreign felony convictions from the enhanced punishment of section 667.6. Such a construction would go against the apparent purposes of the statutes and the express language of section 668, a statute in pari materia with section 667.6. The trial court did not err in enhancing defendant's sentence by 20 years. II. DID THE TRIAL COURT PROPERLY IMPOSE A RESTITUTION FINE?[] .... .... .... .... .... .... .... . DISPOSITION The judgment is affirmed. Dibiaso, J., and Thaxter, J., concurred. Appellant's petition for review by the Supreme Court was denied July 12, 1995. NOTES [] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II. [1] All statutory references are to the Penal Code unless otherwise indicated. [2] Defendant's recitation of section 667.6 differs from our earlier recitation of the section because defendant refers to a later version of section 667.6 (Stats. 1993, ch. 127, § 1), rather than the version in effect when the crimes were committed. [*] See footnote, ante, on page 623.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264105/	33 Cal.App.4th 658 (1995) 39 Cal. Rptr.2d 835 In re the Marriage of BARBARA and LARRY LURIE. BARBARA LURIE MARINO, Appellant, v. LARRY LURIE, Respondent. Docket No. B079163. Court of Appeals of California, Second District, Division Five. February 28, 1995. 661 COUNSEL Trope & Trope and Thomas Paine Dunlap for Appellant. Avery M. Cooper for Respondent. OPINION GODOY PEREZ, J. Appellant Barbara Lurie Marino sought to enforce and modify a New York child support order in California pursuant to the Uniform Reciprocal Enforcement of Support Act, Family Code section 4800 et seq. Under New York law, parents must support their children until the children turn 21, while in California the obligation ends at age 18. The family law court ruled that California's age of majority applied and declined to increase support for appellant's 20-year-old son. Appellant challenges that order, along with the denial of her request for attorney fees. For the reasons set forth below, we affirm the order as to child support but reverse and remand for a determination as to the issue of attorney fees. FACTS AND PROCEDURAL HISTORY Barbara and Larry Lurie were married October 23, 1970, in New York. They had two sons Eric born in May 1972 and Aaron born in November 1978.[1] On November 28, 1984, a New York state court entered a judgment dissolving the marriage. The judgment arose from and incorporated a wideranging stipulation between Larry and Barbara concerning custody of the children, visitation, disposition of property and other matters. Barbara was granted sole custody of Eric and Aaron. Relevant here is that part of the stipulation by which Larry agreed to pay $375 per child each month as child support "until each child is 21, emancipated, or sooner dies." Under New York Domestic Relations Law section 32, 662 a parent is obliged to support a child until he or she turns 21 or is emancipated. While the stipulation was incorporated into the divorce judgment, it did not merge with it and would "survive the effect of" the judgment. Larry was laid off from his job in July 1985 and obtained a New York court-ordered suspension of his child support obligations until he got another job. He moved to California in November 1985 and became employed in Torrance sometime in 1986. Barbara moved to Pennsylvania and remarried. On September 9, 1992, Barbara registered her New York divorce judgment in the Los Angeles County Superior Court pursuant to the provisions of the Revised Uniform Reciprocal Enforcement of Support Act of 1968, Code of Civil Procedure former section 1650 et seq. (RURESA).[2] As part of her registration statement, Barbara declared that Larry's child support payments were not in arrears. On December 9, 1992, Barbara filed an order to show cause seeking to modify Larry's child support obligations. She sought: reimbursement of certain medical expenses for Aaron, who had cystic fibrosis and diabetes; asked that Larry keep both children covered under his medical insurance policy; that he pay for all future uninsured medical expenses; pay the college expenses of both children; and pay an increased amount of child support for both children. In response, Larry agreed to an increase in Aaron's support payments. He also agreed to abide by the divorce judgment and his incorporated stipulation to pay college expenses as he was able. In accordance with California law, however, he rejected any obligation to pay child support beyond the age of 18. (§§ 3900-3901, 6500.) On March 24, 1993, Barbara filed an order to show cause seeking child support arrearages from Larry. The basis of this request was her allegation that Larry was working for six of the eleven months that his child support obligations were suspended based on his 1985 job layoff. As part of this application, Barbara also sought attorney fees and costs. On June 15, 1993, the court increased Aaron's child support to $949 each month, found that Larry was able to pay certain of Eric's college expenses 663 and ordered him to do so and also ordered Larry to reimburse Barbara for certain medical expenses which were not covered by insurance. The court took under submission the issues of attorney fees and whether the duration of Larry's child support obligations should be determined by New York or California law. On July 30, 1993, the court ruled that under URESA's choice of law principles, it was obligated to apply California law and terminate child support when each child turned 18. As a result, no increase in support was permitted for the 20-year-old Eric. The court also held that even though it would like to award attorney fees to Barbara, such an award was prohibited by URESA.[3] Barbara contends on appeal that the federal constitutional principle of full faith and credit required adherence to New York law under the New York judgment, supplanting California's earlier age of majority, and thus requiring the family law court to at least exercise its discretion and determine whether Eric was entitled to any increase in his child support. She also argues that while attorney fees were not allowed in connection with her initial registration of the New York judgment, they are allowed by California law in all subsequent proceedings to enforce or modify the judgment. DISCUSSION 1. URESA's Choice of Law Principles Require Application of California's Age of Majority The purposes of URESA "are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto." (§ 4801.) URESA itself "creates no duties of family support but leaves this to the legislatures of the several states. The Act is concerned solely with the enforcement of the already existing duties when the person to whom a duty is owed is in one state and the person owing the duty is in another state...." (9B West's U. Laws Ann. (1987) RURESA, prefatory note, p. 382.) URESA's scope is therefore limited to determining entitlement to support already established and enforcing such duties of support. (In re Marriage of Angoco & San Nicolas (1994) 27 Cal. App.4th 1527, 1533 [33 Cal. Rptr.2d 305].)[4] A duty of support can be one imposed or imposable either by law or by order, decree or judgment of a court in another state with a substantially 664 similar reciprocal law. (§ 4802, subds. (a), (b).) This includes duties existing under statutory law even if it has never been litigated in court or reduced to an order or judgment but is instead litigated for the first time under URESA. (Scott v. Superior Court, supra, 156 Cal. App.3d at p. 584.) URESA may be enforced both criminally (§§ 4810-4811) or civilly. Civil enforcement may be obtained by two methods. The first is enforcement by an action, which is commenced with the filing of a complaint in the state where the person owed support (the obligee) lives. (§ 4824.) That state (the initiating state) then determines whether the obligee is owed a duty of support. If so, the finding is certified to the responding state, where the duty is sought to be enforced. (§ 4827.) The obligor is then served with the complaint and the court of the responding state will determine whether a duty of support is owed and if so, how much. The responding court may order the obligor to furnish or reimburse support and subject his or her property to the order. (§§ 4831-4833, 4836.) The second method of civil enforcement applies only if the duty of support is based on a foreign support order. In that case, the other state's order may be registered in a California superior court "in the manner, with the effect, and for the purposes provided in this article." (§§ 4848-4849.) The obligor must send certified copies of the foreign support order and other supporting information to the court clerk. When these are received, the clerk is to file them in a registry of foreign support orders. That filing constitutes registration of the foreign support order. (§ 4852.)[5] Once registered, the foreign support order "shall be treated in the same manner as a support order issued by a court of this state. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a support order of this state and may be enforced and satisfied in like manner." (§ 4853, subd. (a).) The obligor has 20 days after notice of registration has been served to file a noticed motion requesting the court to vacate the registration or for other relief. No joinder or coordination of actions or cross-complaints are allowed and the claims or 665 defenses are strictly limited to the obligor's identity, the validity of the underlying foreign support order, or the accuracy of the obligee's statement of unpaid support. If the obligor does not file such a motion within 20 days, the registered foreign support order is confirmed. (§ 4853, subd. (b).) The purpose of this alternate registration procedure is to provide a more efficient method of enforcing foreign support orders. (In re Marriage of Aron (1990) 224 Cal. App.3d 1086, 1090 [274 Cal. Rptr. 357].) Larry did not seek to vacate the registration order. Because only the order itself and not the statement of arrears is confirmed, he was free to contest any claimed arrears after the 20-day period elapsed. (In re Marriage of Aron, supra, 224 Cal. App.3d at p. 1091.) (1) Once the order is registered, the obligor and the obligee are both free to seek modification of the support order. As to the obligor, modification is considered one of the "normal defenses" to a support order permitted by section 4853, subdivision (a). (224 Cal. App.3d at pp. 1090, 1091, fn. 4; In re Marriage of Straeck (1984) 156 Cal. App.3d 617, 622 [203 Cal. Rptr. 69].) URESA has it own choice of law provision, section 4820, which provides: "Duties of support applicable under this chapter are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown." The trial court's ruling on the applicable age of majority here was based on this section and the following four decisions interpreting it. In Scott v. Superior Court, supra, 156 Cal. App.3d 577, the issue was whether a 28-year-old New York resident who was mentally disabled was entitled to support from her father in California. No such obligation existed under New York law, but it did in California pursuant to Civil Code former section 206 (now § 3910). Under Code of Civil Procedure former section 1670, now section 4820, no conflict of law analysis was necessary. Since New York's USDL contained a similar choice of law provision, this reciprocal adoption of the choice of law rule required application of California law. Accordingly, the father in California was required to support his disabled New York daughter. (Scott v. Superior Court, supra, 156 Cal. App.3d at pp. 584-586.) In Elkind v. Byck (1968) 68 Cal.2d 453 [67 Cal. Rptr. 404, 439 P.2d 316], the husband and wife were divorced in Georgia. The wife moved to New York and the husband to California. The Georgia divorce decree required the husband to make a lump-sum deposit to establish a trust which would make payments in satisfaction of his child support obligations. Under Georgia law, 666 such an award could not be modified. The wife brought a RURESA action in New York, which was transferred to California, seeking additional child support. Under RURESA's choice of law provision, California law applied and the support order was modifiable. (Id. at pp. 455-457.) In In re Marriage of Hyon & Kirschner (1991) 231 Cal. App.3d 449, 454 [282 Cal. Rptr. 408], the former husband, after divorcing his wife in Florida, moved to California. The court held that California and not Florida law should determine his obligation to reimburse the state of Florida, which brought a RURESA action to collect for welfare payments to the husband's children. The final decision which the trial court relied on here was In re Marriage of Taylor (1981) 122 Cal. App.3d 209 [175 Cal. Rptr. 716] (hereafter Taylor). Taylor arose from similar facts and Barbara contends that the trial court misinterpreted the decision and that the ruling in Taylor in fact supports her claim. The wife in Taylor obtained a Missouri divorce in 1972, ordering the husband to pay $112.50 per month for each of their three children. The wife later moved to Virginia and the husband became a California resident. In April 1979, the wife registered the Missouri judgment in California pursuant to sections 4848-4849 (Code Civ. Proc., former §§ 1697-1698). The wife later brought a motion to compute child support arrearages and requested attorney fees. While Missouri law obligated the husband to support his children until they were 21, he contended California's earlier age of majority applied. As a result, he contended that any payments already made by him for any child over 18 should be credited against any remaining child support obligation. The court confirmed the Missouri judgment as a California judgment and ordered the husband to pay an arrearage of $5,625 and to continue to pay support for the children who remained minors. The amount of the arrearage included payment of support for 2 of the children who had reached 18 but were not then 21. On appeal, the husband only contested the issue of the age of majority. (Taylor, supra, 122 Cal. App.3d at pp. 211-212.) The appellate court held that as a sister state judgment, the Missouri divorce decree was entitled to be given full faith and credit under section 1 of article IV of the United States Constitution. Even the existence of RURESA and its choice of law provision could not override the doctrine of full faith and credit, stating it would be "patently ridiculous" to permit a child support obligor to unilaterally alter his duties under one state's judgment by moving to another state. (Taylor, supra, 122 Cal. App.3d at p. 214.) Standing alone, this portion of the decision makes it seem as if Taylor mandates application of New York's age of majority here. When viewed in 667 its factual context and alongside other portions of the decision, however, it is clear that Taylor does not apply and in fact supports the family law court's order in dispute here. At issue in Taylor were the husband's obligations as to past due child support payments which had accrued under the Missouri judgment before that judgment was registered in California under URESA. The husband "claimed that he was not obligated to pay for any child over the age of 18 years and that any such payment made by him should be credited against any remaining obligation of child support...." (122 Cal. App.3d at p. 212.) In short, the husband wanted to invoke California law as to past payments already made under the Missouri decree and apply those payments to offset his future obligations under the converted California judgment. The family law court calculated the arrearage owed by including support payments for 2 children who had reached age 18 but were not yet 21. No mention is made as to how the husband's future support obligations would be determined, and the appellate court made it clear that this distinction was critical: "Under Missouri law, arrearage accrued under a judgment for the support of minors which has accrued after they are 18 or over but before the age of 21 is unmodifiable by the courts of that state. As to such accrued part of any judgment, it must be granted full faith and credit by the courts of this state. The support of minor children ordered by a court of the State of Missouri, under the law thereof, must be paid until age 21 or emancipation under the common law rule. [Citation.] [¶] The record at bench discloses no emancipation and no modification of the Missouri judgment. Nor is failure to modify in the present action an issue at bench. Husband has expressly disclaimed any issue of modification. He contends only that the law of California describing minors should be applied rather than the law of Missouri. But as we have explained above, under the federal constitutional demand for full faith and credit that must be accorded to the Missouri judgment, his contention is untenable. [¶] It is significant that we are dealing exclusively with the accrued payments and not with future payments under the support order. As indicated, no issue for modification which would affect future payments has been presented to us. Therefore, we are not concerned with any different rule which might possibly apply under the doctrine of comity and which would allow the court of California to enforce the sister state support order with respect to future payment, but also permits the local California court to modify the support order under appropriate factual circumstances presented to the trial court. [Citation.]" (Taylor, supra, 122 Cal. App.3d at pp. 213-214, italics added.) The court later emphasized this distinction when it held that the Missouri judgment was "res judicata and as to the accrued and past due obligation of support must be given full faith and credit. ..." (Id. at p. 214, italics added.) 668 The situation here is the obverse of Taylor. Barbara's registration statement declared that there were no arrearages. She sought modification three months later, including a request for increased child support. The husband in Taylor sought to apply California law to past support payments already made under the Missouri judgment as an offset to future payments after that judgment was registered in California for treatment as a California judgment. (2) Barbara's New York divorce has been registered under URESA and is now treated the same as a California judgment. It is also subject to the same defenses as a California judgment by section 4853, subdivision (a), which "invite[s] reference to state law principles concerning enforcement of child support duties...." (In re Marriage of Aron, supra, 224 Cal. App.3d at p. 1090.) Section 3901 terminates a parent's child support obligations at age 18, and this was a proper defense for Larry to raise under section 4853, subdivision (a). Combined with the choice of law principle set forth in section 4820, it seems clear that California law applies. New York courts which have considered the issue presented here have similarly concluded that the law of the state where the obligor lives determines the duration of his child support obligation. In Ryan v. Ryan (1987) 128 A.D.2d 624 [513 N.Y.S.2d 25], and Danis v. Stillerman (1978) 66 A.D.2d 818 [411 N.Y.S.2d 353], the New York courts ordered fathers residing in that state to pay child support until age 21 under New York law even though the mothers and children lived in states where the support obligation ended at 18. When the facts are reversed and faced with the situation presented here, New York has conceded that its age of majority rule is superseded by California's. In Huffman v. Huffman (1978) 93 Misc.2d 790 [403 N.Y.S.2d 850], the court discussed how the correlative rights of entitlement to support and duty of support are determined: "However, in a recent informal opinion of the New York Attorney General entitlement and duty were merged as one concept. 1976 Op.Atty.Gen. 236. In a letter to the County Attorney of Orleans County, the Attorney General stated that `in a child support proceeding commenced in New York and forwarded to California pursuant to New York's Uniform Support of Dependent's Law, which is entitled to reciprocity because of its similarity to [URESA] adopted by California, California law applies in determining whether an 18-year old New York resident is entitled to support from her father who resides in California.' [Citation.]" (Id. at p. 853, italics added.) The same interpretation is included as a practice commentary to New York's USDL. (See Sobie, Practice Commentaries, 14 McKinney's Consol. Laws of N.Y. Ann. (1988 ed.) Domestic Relations Law, § 34, pp. 187-189.) 669 This holding does not violate the doctrine of full faith and credit. Instead, our courts consider adoption of URESA or similar reciprocal legislation to be in effect a waiver of that doctrine. For instance, the husband in Elkind v. Byck, supra, 68 Cal.2d 453, who was ordered by a California court under RURESA to pay more child support then permitted by Georgia law, challenged the support order on full faith and credit grounds. The court said that while judgments for alimony to a divorced wife, which cannot be modified by the rendering state cannot be modified elsewhere, the same is not true of child support orders. "A divorce decree incorporating child support provisions, however, does not terminate the relationship of parent and child as it terminates the relationship of husband and wife. This case demonstrates why the divorce state should not be permitted to determine the welfare of the child for all time and in all states: More than ten years following the divorce, none of the parties appears to have any connection at all with Georgia; the mother and child reside in New York, and the father resides in California. [¶] Indeed, by the adoption of [URESA] in almost all states [citation], the federal system now espouses the principle that no state may freeze the obligations flowing from the continuing relationship of parent and child. [Citations.] The states now share the power over that relationship to the extent of the obligor's presence in each.... [Citations.] In deference to the clearly articulated national policy of preserving the flexibility of support obligations, Georgia has expressly refrained from demanding that its judgment be conclusive elsewhere. The parties were therefore entitled to rely upon that judgment in Georgia alone." (Elkind v. Byck, supra, 68 Cal.2d at pp. 459-460, fns. omitted.) In Scott v. Superior Court, supra, 156 Cal. App.3d 577, where California's statutory duty to support disabled children over age 21 was imposed on the California father of a New York woman, the court noted that New York's choice of law provisions under its USDL were substantially the same as California's version of URESA. (Id. at pp. 584-585.)[6] "This reciprocal adoption of the choice of law rule also evidences a willingness on the part of New York to waive whatever governmental interest it might have in application of its law in the underlying California support action." (156 Cal. App.3d at p. 584.) The Scott court then quoted from a New York appellate decision which endorsed this choice of law rule: "`The presence of the obligor as a test of 670 the choice of law applicable has worked well. It is simple. In the great majority of cases, it is often the application of the law of the responding state where the obligor is found and has his day in court. So in most cases, the court will be applying its own law.'" (Scott v. Superior Court, supra, 156 Cal. App.3d at p. 586, quoting Anonymous v. Anonymous (1963) 38 Misc.2d 961 [239 N.Y.S.2d 315, 317].) "Thus, the mutual adoption by California and New York of the URESA choice of law criterion for interstate child support enforcement is tantamount to a formal agreement between these states (and the 49 other states, the District of Columbia and Guam, Puerto Rico, and the Virgin Islands which have adopted either the original act or the Revised act of 1968) that in all child support matters involving these two states, the controlling choice of law criterion is the place where the alleged obligor is present. [¶] ... Both California and New York expect, by virtue of their mutual adoption of the URESA choice of law criterion, that California law concerning child support obligations will be applied under the present circumstances. [Citation.] This promotes the stated purpose of the URESA to `improve and extend ... the enforcement of duties of support and to make uniform the law with respect thereto.' [Citation.] To ignore this agreed criterion and engage in the standard evaluation of `comparative impairment' [for conflict of laws analysis] would generate unwanted case-by-case rumination in a special area where the states have expressly agreed to a clear, simple, and consistent answer." (Scott v. Superior Court, supra, 156 Cal. App.3d at p. 586.) The decision in Taylor, therefore, does not mandate, as appellant contends, the application of full faith and credit principles to respondent's future support obligations. While appellant has distinguished the decisions in Scott, Elkind and Hyon & Kirschner on their facts, each clearly affirms the application of California law under URESA's choice of law provision when the child support obligor is a California resident. Since child support payments cannot be ordered for a child over age 18, the family law court below acted properly in refusing to raise the amount of child support payable for Eric.[7] 2. The Stipulation for Child Support to Age 21 Was Not a Stipulation for Support Beyond the Age of Majority (3) URESA's choice of law principles notwithstanding, Barbara also contends that Larry's stipulation to support the children until age 21, which 671 the New York judgment incorporated, required the family law court to order support until that time. The court's refusal to admit that stipulation into evidence was error which requires reversal, she argues.[8] Under section 3587, the court has the authority to approve a stipulated agreement by the parents to support a child past the age of majority. While section 3900 limits the duty of child support up to the age of majority, that section does not limit a parent's ability "to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made." (§ 3901, subd. (b).) Respondent counters that: (1) the stipulation was only to provide support until the children attained their majority for support purposes under New York law; and (2) regardless, the stipulation could only be enforced by way of a separate action for breach of contract. Because we agree with the former contention, we need not discuss the latter. Under New York law, "[t]o hold defendant responsible for child support beyond the age when the law ceases to expect it requires an express agreement in unmistakable terms to accept such responsibility [citation]." (Hoffman v. Hoffman (1986) 122 A.D.2d 583 [505 N.Y.S.2d 273, 274].) The father in Hoffman entered into a stipulation concerning his oldest child, then 21 but about to graduate from college, that she would be treated "`as though she were emancipated.' ..." (Id. at p. 274.) The mother contended that under this stipulation, the father agreed to equate emancipation with college graduation, thus obligating him to support his remaining younger children until they graduated from college. The court rejected this interpretation under the rule quoted above. (Cf. Streuli v. Streuli (1978) 60 A.D.2d 829 [401 N.Y.S.2d 231, 232] [duty to support past age of majority found where father stipulated that support for each child would end respectively as that child either completes college or, if he does not attend college, turns 21]; Natalie M. v. Philip M. (1977) 90 Misc.2d 974 [396 N.Y.S.2d 752, 753] [father obligated to support retarded adult child incapable of self-support based on separation agreement in which it was agreed that support would cease upon the age of majority if the children "are capable of earning their own living ..."].)[9] California decisions are in accord with the New York rule of Hoffman. In In re Marriage of Lieberman (1981) 114 Cal. App.3d 583 [170 Cal. Rptr. 672 757], the wife sought to hold the husband liable for child support past the age of majority for their mentally disabled child based on an in-court stipulation. The parties stipulated that child support should be paid "until `the children die, become emancipated or reach majority.'" This was not sufficient to require support beyond the age of majority. (Id. at p. 586.)[10] In contrast, the court in In re Marriage of Whitney (1977) 71 Cal. App.3d 179, 182-183 [139 Cal. Rptr. 324], found an agreement to support beyond the age of majority when the husband agreed to support the children until they turned 21, died, married or were emancipated and that agreement was entered after the Legislature reduced the age of majority from 21 to 18. Here, Larry agreed to support Eric and Aaron "until each child is 21, emancipated, or sooner dies." The age of majority for child support purposes in New York was (and is) 21 and this stipulation includes no obligation beyond that imposed by law. On these facts, we do not see an express or unmistakable agreement to support the children beyond the age of majority. (Hoffman v. Hoffman, supra, 505 N.Y.S.2d at p. 274.) Nor do we see any difference between an agreement to provide child support until age 21 and an agreement to provide support until the age of majority when the two were synonymous when and where the agreement was made. Under In re Marriage of Lieberman, supra, 114 Cal. App.3d at page 586, we find no agreement for support beyond the age of majority.[11] Barbara does not contend that Larry intended to support the children beyond the applicable age of majority and the record includes no evidence to support such an interpretation. While appellant's brief did not expressly say so, Barbara appears to contend that since Larry agreed to support the children to age 21 in accordance with New York law, then he should be similarly obligated here. By applying this reasoning, any agreement to provide child support up to the age of majority made in a state with a longer age of majority would render URESA's choice of law provision meaningless under these circumstances. We reject this contention in favor of URESA's clear mandate to apply the law of the state where the obligor lives.[12] 673 3. Recent Federal Child Support Legislation Does Not Compel a Different Result On October 20, 1994, President Clinton signed into law the Full Faith and Credit for Child Support Orders Act, 28 United States Code section 1738B (the federal Act). The existence and effect of the federal Act were raised for the first time during oral argument and, at the court's request, the parties provided additional letter briefing on this new law. Predictably, each party contends the federal Act supports its own position, but both also agree that the new law does not operate retroactively and therefore has no effect on this appeal. Both the statute and its legislative history are silent as to the effective date of the federal Act and whether it was intended to have retroactive or prospective effect. (4) Absent an express legislative declaration, either in the statute or through its legislative history, federal laws take effect upon signature by the President and apply even when a change to existing law occurs during the pendency of an appeal. (DeGurules v. I.N.S. (9th Cir.1987) 833 F.2d 861, 863; United States v. Shaffer (9th Cir.1986) 789 F.2d 682, 686; United States v. Kowal (D.Conn. 1984) 596 F. Supp. 375, 376.) (5) While the federal Act therefore operates retroactively, we conclude, post, that the federal Act in no way alters the outcome under URESA. As a result, we need not determine the existence of an exception to the rule of retroactive operation: whether such application would result in an injustice. (DeGurules v. I.N.S., supra, 833 F.2d at p. 863.) The federal Act is prefaced by certain congressional findings, including: the existence of a growing number of child support disputes between parents living in different states; the laws by which the different states determine their authority to establish support orders are not uniform; the inapplicability 674 of full faith and credit principles to such orders encourages noncustodial parents to move to different states, increasing the difficulty in enforcing support orders and leading to decreased support levels based solely on the noncustodial parent's choice of residence as well as a disregard of court orders and support obligations. The policy of the federal Act is to establish national standards by which the states can determine their jurisdiction to issue support orders and the effect to be given another state's support orders. The purposes of the federal Act are to facilitate enforcement of child support orders among the states, discourage continuing interstate controversies over child support in order to promote financial stability and secure family relationships for the child, and to avoid jurisdictional competition and conflict among state courts in the establishment of support orders. (Pub.L. No. 103-383 (Oct. 20, 1994) 108 Stat. 4063-4066, 1994 U.S. Code Cong. & Admin. News, No. 9, to be codified at 28 U.S.C. § 1738B, hereafter referred to as 28 U.S.C. § 1738B.) Under 28 United States Code section 1738B(a), each state "(1) shall enforce according to its terms a child support order made consistently with this section by a court of another State; and [¶] (2) shall not seek or make a modification of such an order except in accordance with subsection (e)." To modify a support order "means a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order." (28 U.S.C. § 1738B(b).) A child support order is consistent with the federal Act if "(1) a court that makes the order, pursuant to the laws of the State in which the court is located [¶] (A) has subject matter jurisdiction to hear the matter and enter such an order; and [¶] (B) has personal jurisdiction over the contestants; and [¶] (2) reasonable notice and opportunity to be heard is given to the contestants." (28 U.S.C. § 1738B(c).) A state court which has made a support order has continuing exclusive jurisdiction over the order if the child or any contestant resides in that state, unless the court of another state, in accordance with subdivision (e), has modified the order. (28 U.S.C. § 1738B(d).) The court of one state may modify the support order of another state if: "(1) the court has jurisdiction to make such a child support order; and [¶] (2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any contestant; or [¶] (B) each contestant has filed written consent to that court's making the modification and assuming continuing exclusive jurisdiction over the order." (28 U.S.C. § 1738B(e).) 675 The court of a state which no longer has continuing, exclusive jurisdiction may still enforce its order with respect to nonmodifiable and unsatisfied obligations which accrued before another state modifies the order under subdivision (e). (28 U.S.C. § 1738B(f).)[13] Finally, the federal Act contains a choice of law provision: "(1) ... In a proceeding to establish, modify, or enforce a child support order, the forum State's law shall apply except as provided in paragraphs (2) and (3). [¶] (2) ... In interpreting a child support order, a court shall apply the law of the State of the court that issued the order. [¶] (3) ... In an action to enforce a child support order, a court shall apply the statute of limitation of the forum State or the State of the court that issued the order, whichever statute provides the longer period of limitation." (28 U.S.C. § 1738B(g).) Since Larry, Barbara and their children no longer live in New York, that state no longer has continuing exclusive jurisdiction, and the California courts were free to modify the New York support order. (28 U.S.C. § 1738B(d), (e).)[14] A modification may affect not only the amount, but also the scope and duration of a support order. (28 U.S.C. § 1738B(b).) Under the federal Act, California law applies in proceedings to enforce or modify a support order and, as discussed at length ante, under both section 3901 and URESA's choice of law principles, child support obligations in this state terminate when the child turns 18 and reaches the age of majority. Subdivision (g)(2) of the federal Act, which requires that an issuing state's support order be interpreted according to that state's law, does not alter our conclusion. As demonstrated in part 2 of this decision, under New York law the order can only be interpreted as calling for support until the age of majority is achieved. In enforcing that order, however, both URESA and the federal Act require application of California law. The federal Act's legislative history also shows that it was not intended to affect URESA actions by a custodial parent to enforce another state's support order: "When the non-custodial parent subsequently moves to another state, he or she may petition the courts in the new state to change the amount of child support he or she is required to pay. Because child support orders are not entitled to full faith and credit, the courts of the other state can, and frequently do, reduce the amount of support payable under the original court order. This [leaves] a custodial parent with only two choices. 676 He or she can choose to accept the ruling, and do without the full amount of child support, often at great hardship to the children. Or, he or she can challenge the ruling in the out-of-state court. Assuming the custodial [parent] learns of the modification in time to appeal, this requires paying money for court costs, attorney's fees, and travel to the new state, all without any guarantee of success. Obviously, neither of these solutions is adequate. S. 922 [the federal Act] is designed to remedy that problem. [¶] If a noncustodial parent wishes to file for a reduction in child support payments, then he or she must do so in the state that originally issued the order. This will insure that the custodial parent is given notice of the proposed modification, as well as an opportunity to oppose the modification if he or she wishes." (Sen. Rep. No. 103-361, 2d Sess., pp. 4-5, see for legis. hist., 1994 U.S. Code Cong. & Admin. News, No. 9A at p. 3261, italics added.) Thus when the custodial parent seeks to enforce or modify one state's support order in another state's courts, and the first state no longer has continuing exclusive jurisdiction, the law of the latter applies. Since Barbara asked our courts to enforce and increase Larry's support obligations, and since neither the parents nor the children live in New York, those obligations are enforced under California law. 4. Attorney Fees Were Permitted Under California Law (6) The family law court believed that Barbara would ordinarily have been entitled to an award of attorney fees but held that it had no discretion to award those fees under section 4803, subdivision (b) (Code Civ. Proc., former § 1654, subd. (b)), which states in relevant part: "[N]o party to an action under this chapter ... is entitled to attorney's fees from the opposing party for prosecuting or defending the action, except where the court finds that the opposing party has not prosecuted or defended the action in good faith." Barbara contends that once she registered the judgment, it was to be treated the same as any California support order, including the right to attorney fees upon bringing a motion for modification, as provided by section 3652 (Civ. Code, former § 4700, subd. (a)). Only one reported decision has remotely touched on this issue, In re Marriage of Hubner (1988) 205 Cal. App.3d 660 [252 Cal. Rptr. 428]. The ex-wife in Hubner registered her Orange County support order in Los Angeles County pursuant to Code of Civil Procedure former section 1697, subdivision (b) (now § 4848, subd. (b)). The ex-husband moved to vacate the registration pursuant to Code of Civil Procedure former section 1699, subdivision (b) (now § 4853, subd. (b)) on the ground that his primary residence 677 was in Michigan. That motion was denied. Several months later, the ex-wife brought a motion to modify the amount of child support and requested attorney fees. Pursuant to section 4803, subdivision (b), the family law court refused to award fees in connection with the registration proceeding itself, but did order the ex-husband to pay nearly $8,000 in fees apparently in connection with the modification hearing. The ex-wife in Hubner contested the denial of attorney fees in connection with the registration process and argued on appeal that URESA's prohibition against awarding fees applied only to "routine" registration proceedings, not to contested ones. The appellate court rejected this distinction in reliance on the clear language of Code of Civil Procedure former section 1654, subdivision (b) since URESA "specifically envisions contested registration hearings. [Citations.]" (In re Marriage of Hubner, supra, 205 Cal. App.3d at p. 669.) The court further hinted at another distinction, based on whether the ex-wife was seeking to enforce or modify a support order. The ex-wife sought fees under Civil Code former section 4370, subdivisions (a) and (b) (now §§ 270, 2030-2031), which provided for an award of fees for support modification motions while a divorce action was pending and under Civil Code former section 4370, subdivisions (c) and (d) (now §§ 273, 3557), which provided for an award of fees in any action to enforce an existing support order: "Finally, we note that assuming a case might arise which presented a serious conflict between Civil Code [former] section 4370 and Code of Civil Procedure [former] section 1654, this is not such a case: [The wife] was seeking modification, not enforcement, of a child support order (compare Civ. Code, [former] § 4370, subd. (c)) and was authorized but not required to register the Orange County judgment in Los Angeles County (Code Civ. Proc., [former] § 1697, subd. (b))." (In re Marriage of Hubner, supra, 205 Cal. App.3d at pp. 669-670.) Larry and Barbara each interpret Hubner as supporting their respective positions. This dichotomy arises more from a lack of clarity by the court than from a misinterpretation of the decision's meaning by either party. The most we can clearly divine from Hubner is that no fees are available in a URESA registration proceeding, whether it was contested or not. The decision suggests less plainly that the wife was not entitled to fees under provisions which applied to enforcement of support orders because she in fact sought to modify an order instead. In this case, Larry did not contest Barbara's registration of the New York judgment. He only contested her later attempt to modify the support order 678 and obtain increased child support. We therefore must resolve the question left unanswered by the Hubner court: Whether attorney fees may be awarded in connection with child support modification motions brought under California law after a foreign support order has been registered pursuant to URESA. An examination of URESA's statutory scheme convinces us that the answer is yes. We begin with the familiar rule of statutory construction that various parts of a statutory scheme must be construed with reference to each other and harmonized. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 [134 Cal. Rptr. 630, 556 P.2d 1081].) Section 4803, subdivision (b) states that no attorney fees may be awarded in "an action under this chapter." The term "action" is excluded from the URESA definitions found at section 4802. It does appear throughout URESA in various contexts, however.[15] It is clear under both Hubner, supra, and our own independent reading of URESA, that no attorney fees may be awarded in connection with the registration of a foreign support order, whether contested or not. Section 4853, subdivision (b) contemplates that a motion to vacate a registered order is within the ambit of an action to register a foreign support order. Such actions are limited, however, to matters which might normally arise in actions to enforce support orders. (§ 4853, subds. (b) & (c).) After that time, the order is treated the same as a California support order, subject to the same procedures, defenses and proceedings for reopening, vacating or staying support orders. (§ 4853, subd. (a).) Under California law, attorney fees and costs may be awarded as part of an order modifying or terminating child support. (§ 3652; Civ. Code, former § 4700(a).) We decline to hold that a postregistration motion to modify child support falls within the ambit of a URESA registration action for purposes of *679 denying attorney fees. Such a holding would be contrary to the provisions of section 4853, subdivisions (b) and (c), which define the scope of registration actions. It would also defy the express mandate of section 4853, subdivision (a), which commands us to treat a registered foreign support order exactly the same as a California order. To hold otherwise would deny child support obligees their right to attorney fees and costs under section 3652 by holding that the initial step of obtaining URESA enforcement through registration converts all future proceedings under California law into URESA actions. Accordingly we reverse that portion of the family law court's order denying Barbara's request for attorney fees and costs and remand the matter for a hearing to determine the proper amount of fees to which she is entitled under section 3652. DISPOSITION For the reasons set forth above, the family law court's order refusing to modify child support for Eric under California's age of majority is affirmed. The order denying Barbara's request for attorney fees and costs is reversed and the matter remanded for the purpose of determining the amount of fees to which she is entitled under section 3652. Each party to bear its own costs on appeal. Grignon, Acting P.J., and Armstrong, J., concurred. NOTES [1] Barbara Lurie has since remarried and is now known as Barbara Marino. For ease of reference, she will be referred to as either "Barbara" or "appellant." Her former husband will be referred to as either "Larry" or "respondent" and both children will also be referred to by their first names. [2] Effective January 1, 1994, RURESA was repealed and reenacted without substantive change as the Uniform Reciprocal Enforcement of Support Act, Family Code section 4800 et seq. (URESA). (See Cal. Law Revision Com. com., Enactment (rev. com.), 29D West's Ann. Fam. Code (1994 ed.) § 4800, p. 754.) Because the changes made in the reenactment process were not substantive and do not bear on the issues before us, we will refer to the new URESA provisions. Unless otherwise indicated, all future statutory references are to the Family Code. [3] While the record is not entirely clear, it appears that Larry paid child support for Eric up to his 21st birthday in the amount set by the New York judgment. At issue here is whether Barbara was entitled to modify that amount upward under URESA and receive the difference for the six-month period before Eric turned twenty-one. [4] URESA was adopted in California in 1953 and revised in 1968 as RURESA. As noted in footnote 2, ante, before January 1, 1994, RURESA was codified at Code of Civil Procedure former section 1650 et seq. and is now found as URESA at Family Code section 4800 et seq. Nearly every state, the District of Columbia, Guam, and the Virgin Islands have adopted URESA or RURESA. (Scott v. Superior Court (1984) 156 Cal. App.3d 577, 586 [202 Cal. Rptr. 920].) New York has not, but has instead adopted its Uniform Support of Dependents Law (USDL), New York Domestic Relations Law section 30 et seq. While the New York law differs in some respects from URESA, it is similar enough to permit reciprocity with California. (Landes v. Landes (1955) 207 Misc. 460 [138 N.Y.S.2d 442, 445].) New York's obligation of child support until age 21 is expressly incorporated into its USDL as Domestic Relations Law section 32. [5] A California support order may also be registered under this procedure in any other California county where the obligor resides or owns property. (§ 4848, subd. (b).) [6] The Scott court incorrectly stated that New York had adopted URESA, but correctly noted that New York's choice of law provisions under its own USDL were much the same. (Scott v. Superior Court, supra, 156 Cal. App.3d at pp. 585-586; see New York Domestic Relations Law, §§ 37, subd. (2), and 37-a, subd. (6)(a).) [7] As mentioned in footnote 3, ante, Larry is not in arrears under the New York judgment since he paid child support for Eric in the amount originally ordered until Eric turned 21. We also wish to make clear that even though our holding may someday apply to Aaron, it does not yet for the simple reason that Aaron will not turn 18 until November 1996. Any order in regard to Larry's obligation to support Aaron beyond then is premature since we do not know for certain whether Larry will still be a California resident at that time. [8] The court refused to admit the stipulation into evidence on the ground that it was not relevant. [9] We also note that, to the extent he is financially able, Larry is obligated under the stipulation to pay for each child's college education, presumably requiring his support in some measure beyond California's age of majority. The family law court here determined that Larry was able to provide for Eric's college education and ordered him to do so. Should Aaron choose to attend college, the same obligation will exist. [10] The family law court in Lieberman imposed the duty to support the mentally disabled child by holding that the child's disability would forever prevent its emancipation and noted that the parties did not stipulate to that term. (In re Marriage of Lieberman, supra, 114 Cal. App.3d at pp. 586-587.) [11] If, for example, Larry had stipulated to support the children to age 25, Barbara would have some basis for arguing that he intended to provide support beyond the age of majority. As noted above, Larry's only obligation to do so depends on whether Eric and Aaron go to college and whether Larry is financially able to pay their college expenses. [12] For much the same reason we reject Barbara's related argument based on decisions concerning the effect of child support agreements or orders made before March 4, 1972, when the age of majority in California was reduced from age 21 to age 18. The seminal decision on this issue was Ganschow v. Ganschow (1975) 14 Cal.3d 150 [120 Cal. Rptr. 865, 534 P.2d 705], which held that all orders entered before March 4, 1972, which ordered child support either to age 21 or to the age of majority were not affected by the new age of majority legislation per se but, where subject to amendment, could refer in any modification order to the new age of majority. This holding interpreted the provisions of Civil Code former section 25.1 (now § 6502) and expressed the Legislature's policy of protecting the reasonable expectations of the parties and the court when support obligations were originally fashioned. (14 Cal.3d at pp. 153-159.) The issues in Ganschow are not analogous here. In Ganschow, the court was interpreting and applying an express legislative mandate concerning the treatment of a certain class of California child support orders. To apply that reasoning here would gut URESA's choice of law provision, where New York (along with the 49 other states) has agreed that the law of the state where the support obligor lives is controlling. [13] This provision of the federal Act is consistent with the facts and holding of Taylor, supra, where full faith and credit principles require enforcement of another state's support order as to past due and therefore nonmodifiable support obligations. [14] It is not disputed that the trial court here had both subject matter and personal jurisdiction in this matter. (28 U.S.C. § 1738B(c), (e).) [15] Section 4822 states that all duties of support may be enforced "by an action under this chapter...." Section 4831, subdivision (a), which applies to URESA's civil complaint procedure, requires the clerk of the responding court, after receipt of a complaint from the initiating court, to notify the prosecuting attorney "of that action." Under section 4845, subdivision (a), a hearing under URESA's complaint procedure is governed by the ordinary rules of evidence in civil cases and, if the "action" is based on another court's support order, that order is admissible. Under URESA's registration procedure, once a support order from another state, or another county within California, is registered, the obligor has 20 days to file a motion to vacate the registration. "In an action under this section, there shall be no joinder of actions, coordination of actions, or cross-complaints, and the claims or defenses shall be limited strictly to the identity of the obligor, the validity of the underlying foreign support order, or the accuracy of the obligee's statement of the amount of support remaining unpaid...." (§ 4853, subd. (b).) At the hearing on the motion to vacate, the obligor may only present matters which would be available as defenses "in an action to enforce a support judgment." (§ 4853, subd. (c).)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264108/	33 Cal.App.4th 1484 (1995) 39 Cal. Rptr.2d 802 CHARLES L. FREIBERG, Plaintiff and Appellant, v. CITY OF MISSION VIEJO, Defendant and Respondent. Docket No. G014118. Court of Appeals of California, Fourth District, Division Three. April 10, 1995. 1485 COUNSEL Robins, Kaplan, Miller & Ciresi, Hayward K. Colby, Joseph L. Dunn and Tanya Kittelson for Plaintiff and Appellant. Edwin J. Richards for Defendant and Respondent. 1486 OPINION WALLIN, J. Charles L. Freiberg attempts to appeal the judgment of nonsuit entered against him as to the City of Mission Viejo, contending there was evidence from which the jury could have found Mission Viejo liable. Mission Viejo moved to dismiss the appeal as untimely. We grant the motion and dismiss. Because we find the appeal was not timely, only a brief summary of the facts is necessary. Freiberg, riding a motorcycle, collided with Loan Vu's pickup truck when she turned left in front of him near an intersection. He suffered severe injuries, including the loss of a leg. She did not see him until an instant before the impact. Freiberg presented expert testimony that the accident was caused in part by faulty construction and marking of the roadway. Despite this testimony, the court granted nonsuit as to Mission Viejo, reasoning that the accident was caused solely by Freiberg and Vu. Judgment on the nonsuit was filed on October 21, 1992, and notice of entry was given on October 27. Freiberg noticed a motion for new trial on November 10. On November 25, the Vus served notice of the automatic stay resulting from their filing bankruptcy on November 19. A supplemental notice was filed on December 9. On January 4, 1993, the trial court entered a minute order purporting to grant "[the Vus'] motion to stay further proceedings because of the pending Vu bankruptcy...." On April 12, the court entered another minute order recognizing the Vu bankruptcy had been dismissed and the automatic stay had been vacated, and denying Freiberg's motion for new trial. Freiberg filed his notice of appeal the next day. (1) Mission Viejo argues Freiberg's notice of appeal was untimely. The primary questions are when did the time to appeal begin to run and when did it expire. As we noted in Miller v. United Services Automobile Assn. (1989) 213 Cal. App.3d 222 [261 Cal. Rptr. 515], under Code of Civil Procedure section 660[1] the trial court has 60 days from notice of entry of judgment to rule on a motion for new trial, at which time, absent a ruling, the motion is deemed denied as a matter of law.[2] At that point, the parties have 30 days to 1487 appeal under California Rules of Court, rule 3.[3] (Miller v. United Services Automobile Assn., supra, 213 Cal. App.3d at p. 226; see also City of Long Beach v. Crocker National Bank (1986) 179 Cal. App.3d 1114, 1116-1117 [225 Cal. Rptr. 227] [unlike rule 2, no notice of ruling on motion for new trial is necessary to start 30-day period running].) Here, the 60-day limit on ruling expired on December 28,[4] unless the 60-day period could be extended for some reason. January 27 was the last day to file the appeal unless the time for appeal was somehow tolled. We find only two cases discussing the possibility of any exception to the requirements of section 660. In Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442 [198 Cal. Rptr. 155, 673 P.2d 743, 38 A.L.R.4th 566], the Supreme Court suggested the trial court can de facto extend the section 660 period for performance of conditions precedent to denial of a new trial, e.g., additur. (35 Cal.3d at pp. 454-455, fn. 6.) That situation is inapplicable here. In In re Marriage of Liu (1987) 197 Cal. App.3d 143 [242 Cal. Rptr. 649], the court reaffirmed the time under section 660 is jurisdictional, and held it starts to run from notice of motion if no notice of entry has been sent. The court assumed without deciding that there is a "beyond [a party's] control" exception to the section 660 limitation akin to that established by section 583.360,[5] but found the appellant did not show why he could not proceed without the transcript he had ordered. (197 Cal. App.3d at p. 151.) No case has actually decided whether there is a similar exception regarding section 660. The analogy to section 583.360 is inapt, however, because 1488 that section is mandatory but not jurisdictional. (See Lauriton v. Carnation Co. (1989) 215 Cal. App.3d 161, 163-164 [263 Cal. Rptr. 476] [§ 583.360 mandatory but trial court's decision will be overturned only for abuse of discretion].) And the distinction between civil and criminal cases regarding exceptions to late appeals has been rigorously observed. (See, e.g., People v. Snyder (1990) 218 Cal. App.3d 480, 493, fn. 8 [266 Cal. Rptr. 915] [distinguishing civil cases which do not allow for an estoppel exception].) Assuming there may be a "beyond a party's control" exception, it could not be applied here. The Vus filed bankruptcy in November before the 60 days expired, but a bankruptcy stay is only effective as to the party in bankruptcy; a plaintiff must proceed against nonbankrupt defendants. (Barnett v. Lewis (1985) 170 Cal. App.3d 1079, 1088 [217 Cal. Rptr. 80]; see also Lauriton v. Carnation Co., supra, 215 Cal. App.3d at p. 164 [bankruptcy stay does not prevent trustee from suing].) Under In re Marriage of Liu, supra, 197 Cal. App.3d 143, Freiberg had the power to proceed against Mission Viejo. There were no circumstances beyond his control which might excuse the failure to obtain a timely ruling on the motion for new trial, so there is no reason for that period to be extended. (Id. at p. 149; cf. Lane v. Newport Bldg. Corp. (1986) 176 Cal. App.3d 870, 873-874 [222 Cal. Rptr. 443] [counsel's assumption that one defendant's bankruptcy stayed the case as to others was unreasonable re tolling of section 583].) The 30-day period to appeal after the motion was denied by operation of law expired on January 27 unless the period could be extended or compliance excused. But relief from the default provision of California Rules of Court, rule 45 is not applicable to late notices of appeal.[6] Neither the trial court nor Court of Appeal may extend the time without statutory authorization, even for mistake, estoppel, or other equitable reasons. The time for appeal is absolutely jurisdictional. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666 [125 Cal. Rptr. 757, 542 P.2d 1349]; see also Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 835, fn. 6 [187 Cal. Rptr. 449, 654 P.2d 219] [reaffirming estoppel is not a ground]; Stuart Whitman, Inc. v. Cataldo (1986) 180 Cal. App.3d 1109, 1113 [226 Cal. Rptr. 42] [reaffirming the strict rule of Hollister]; cf. United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 917 [210 Cal. Rptr. 453, 694 P.2d 138] [distinguishing tardy filing from the case where the defect in the notice was as to form and clerk rejected it].) No post-Hollister case has put even a minor chink in the armor of the rule. 1489 Wenzoski v. Central Banking System, Inc. (1987) 43 Cal.3d 539 [237 Cal. Rptr. 167, 736 P.2d 753], a case analytically similar to this one, demonstrates the rule's rigidity. There the trial court allowed a second motion for new trial after denying the first. The Supreme Court held the trial court lost jurisdiction to do anything in the case after ruling on the first motion, making proceedings on the second a nullity. The time for appeal ran from the denial of the first motion, and the appellant was not entitled to relief from a tardy filing even if the trial court erroneously led the parties to believe it could rule on the second motion. (Id. at p. 542.) Absent estoppel, tolling would be the only way to find the appeal was timely. Although there is no case law precisely on point, we assume the time for appeal is tolled against a bankrupt defendant. But tolling of the time as to the Vus had no effect on the time to appeal as to Mission Viejo. (See Barnett v. Lewis, supra, 170 Cal. App.3d at p. 1088.) The only event which arguably tolled the time for filing the notice of appeal was the trial court's stay entered on January 4 and vacated on April 12, 1993. Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency. (Walker v. Superior Court (1991) 53 Cal.3d 257, 266 [279 Cal. Rptr. 576, 807 P.2d 418]; Rice v. Superior Court (1982) 136 Cal. App.3d 81, 89 [185 Cal. Rptr. 853]; cf. Koch-Ash v. Superior Court (1986) 180 Cal. App.3d 689, 696 [225 Cal. Rptr. 657] [§ 36 trial preference for cases involving senior citizens overrides trial court's inherent power to stay proceedings].) However, that power may only be exercised if the trial court has jurisdiction over the case. Since the trial court had no jurisdiction to do anything after the new trial motion was deemed denied by operation of law on December 28, it had no proceedings to stay. (Wenzoski v. Central Banking System, Inc., supra, 43 Cal.3d at p. 542.) The public policy favoring speedy appeals outweighs a trial court's interest in staying one defendant's appeal, while another is subject to a bankruptcy stay. (Koch-Ash v. Superior Court, supra, 180 Cal. App.3d at p. 696.) Although it may be in the interests of justice to stay a trial until another party's appeal is decided, the converse that it is desirable to put off one party's appeal because another party cannot proceed is contrary to the consistently espoused policy in favor of speedy appeals. (See Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at p. 666; see also Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal. App.3d 871, 880 [154 Cal. Rptr. 591] [exception to one final judgment rule for multiple parties in a severable judgment].) 1490 Mission Viejo's motion is granted and the appeal is dismissed. Sills, P.J., and Sonenshine, J., concurred. Appellant's petition for review by the Supreme Court was denied June 22, 1995. NOTES [1] All statutory references are to the Code of Civil Procedure. [2] Section 660 provides in relevant part: "[T]he power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court." [3] Rule 3 provides in relevant part: "(a) When a valid notice of intention to move for a new trial is served and filed by any party, and the motion is denied, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after either entry of the order denying the motion or denial thereof by operation of law, but in no event may such notice of appeal be filed later than 180 days after the date of entry of the judgment whether or not the motion for new trial has been determined." [4] Sixty days after notice of entry of judgment was given on October 27 was December 26, which fell on a holiday. The next business day was December 28. [5] That section deals with dismissals for failing to bring a case to trial within applicable time periods. [6] Rule 45(e) provides: "The reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal." (Italics added.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264118/	34 Cal.Rptr.3d 827 (2005) 133 Cal.App.4th 456 Yoann BOHBOT, Plaintiff and Appellant, v. SANTA MONICA RENT CONTROL BOARD et al., Defendants and Respondents. No. B179921. Court of Appeal, Second District, Division Three. October 13, 2005. 828 Law Offices of Gordon P. Gitlen and Gordon P. Gitlen, Santa Monica; Law Offices of Rosario Perry and Rosario Perry, Santa Monica, for Plaintiff and Appellant. Santa Monica Rent Control Board, Doris M. Ganga and Michaelyn Jones for Defendants and Respondents. Sonya Molho, Los Angeles, counsel for Defendant and Respondent, Susan Cope. CROSKEY, Acting P.J. We are here called upon to interpret various provisions relating to Santa Monica's Rent Control Law ("RCL"), specifically those relating to owner-occupancy evictions in condominium units. The RCL was adopted in 1979. It provided that landlords could evict tenants for owner-occupancy. Under this initial version of the RCL, landlords were prevented from converting their apartments into condominiums unless they obtained removal permits. Two important changes occurred in 1984. First, in May of that year, Santa Monica voters adopted a second means by which apartments could be converted into condominiums, the Tenant Ownership Rights Charter Amendment ("TORCA"). Under TORCA, a conversion could be accomplished without a removal permit if the tenants were offered an opportunity to purchase their units, and two-thirds of the tenants supported the conversion application. TORCA also granted a protection against owner-occupancy evictions to all tenants in the building at the time of the conversion who chose not to purchase.[1] With respect to the tenants who rented after the conversion, TORCA gave no protection, and the general provision of the RCL permitting owner-occupancy evictions applied. Second, and also in 1984, the Santa Monica City Council became concerned that landlords were converting their buildings into condominiums without obtaining removal permits as required under the RCL. Some landlords took the position that they 829 could simply subdivide their property into separate units, sell the interests in the individual units, and the new owners could then evict the tenants for owner-occupancy. To prevent this construction, and put buyers of illegally converted units on notice that they could not evict tenants for owner-occupancy, the City Council adopted an ordinance that owner-occupancy evictions would be prohibited in all condominium units unless a removal permit had been obtained for the conversion. Shortly thereafter, in November of 1984, the voters incorporated this restriction into the RCL. The dispute in this case involves the owner of a condominium unit legally converted under TORCA, who seeks to evict a tenant who was not in possession at the time of the conversion (i.e., a "non-participating tenant"). The landlord argues that owner-occupancy eviction is permitted under TORCA. The tenant, and the Rent Control Board ("Board"), say the eviction is impermissible, relying on the RCL provision prohibiting all owner-occupancy evictions in condominium conversions unless a removal permit has been obtained. Based upon our review of the legislative history of the RCL amendments, we conclude that the RCL provision prohibiting owner-occupancy evictions in conversions, unless a removal permit has been obtained, was clearly intended to prohibit owner-occupancy evictions in illegally converted condominiums only, and therefore has no effect in this case, where the condominium was legally converted under TORCA. We also conclude that a Board regulation prohibiting all attempts at owner-occupancy evictions for four years after the landlord voluntarily dismisses an attempt at owner-occupancy eviction is invalid as contrary to statutory law. FACTUAL AND PROCEDURAL BACKGROUND The facts are not seriously in dispute. In 1992, a TORCA application was approved for the conversion of the condominium at issue. Defendant Susan Cope was not a tenant at the time of conversion. She became a tenant in 1994. In May 2003, plaintiff Yoann Bohbot purchased the condominium unit Cope was renting. Shortly thereafter, he served Cope with a 60-day notice to quit, based on owner-occupancy. In July 2003, Bohbot filed an unlawful detainer action against Cope, seeking possession of the unit. Unbeknownst to him, however, Bohbot's management company had continued to collect rent from Cope, thus invalidating his initial notice to quit. Therefore, on August 19, 2003, Bohbot dismissed the unlawful detainer action without prejudice.[2] On August 21, 2003, Bohbot served Cope with a second notice to quit, intending to start the owner-occupancy eviction proceedings again. Cope's attorney responded by letter asserting the notice to quit was invalid under the Board's regulation prohibiting a second attempt at owner-occupancy eviction within four years of the dismissal of a previous attempt. Bohbot then brought the instant action against Cope and the Board, seeking a declaratory judgment that the regulation on which Cope relied was void. Bohbot sought summary judgment on this basis. The Board responded that the trial court need not consider the validity of the regulation. 830 The Board argued that, regardless of the regulation, Bohbot would never be able to evict Cope for owner-occupancy due to the RCL provision prohibiting owner-occupancy evictions in all condominium units which had been converted without removal permits. The trial court denied Bohbot's motion for summary judgment. Bohbot was permitted to file a first amended complaint which directly challenged the applicability of the RCL provision, as well as the regulation. Cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of the Board, concluding that Bohbot was prohibited from evicting Cope for owner-occupancy because his condominium unit had been converted without a removal permit. Judgment was entered to that effect. Bohbot filed a timely notice of appeal. ISSUES ON APPEAL There are two issues raised by this appeal. First, whether the RCL permits the owner of a condominium unit legally converted under TORCA to evict for owner-occupancy a tenant who was not a tenant in the unit at the time of the conversion. Second, whether the regulation prohibiting a second attempt at owner-occupancy eviction within four years after dismissal of an initial attempt, is invalid. DISCUSSION 1. Standard of Review "The same rules of statutory interpretation that apply to statutory provisions also apply to local charter provisions." (Giles v. Horn (2002) 100 Cal.App.4th 206, 221, 123 Cal.Rptr.2d 735.) Interpretation is a question of law subject to independent judgment review. (Id. at pp. 219-220, 123 Cal.Rptr.2d 735.) Our primary duty when interpreting a statute is to determine and effectuate the Legislature's intent. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1382, 46 Cal.Rptr.2d 542; People v. Ramirez (1995) 33 Cal.App.4th 559, 563, 39 Cal.Rptr.2d 374.) "When the language of a statute is clear and unambiguous, there is no need for interpretation and we must apply the statute as written." (Lafayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 39 Cal.App.4th at p. 1382, 46 Cal.Rptr.2d 542.) "`Words used in a statute . . . should be given the meaning they bear in ordinary use.' (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)" (People v. Ramirez, supra, 33 Cal.App.4th at p. 563, 39 Cal.Rptr.2d 374.) "However, the `"plain meaning" rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose' and provisions relating to the same subject matter must be construed together and `harmonized to the extent possible.'" (In re Kali D. (1995) 37 Cal.App.4th 381, 386, 43 Cal.Rptr.2d 581.) "`"We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." [Citation.]' [Citation.] The legislative purpose will not be sacrificed to a literal construction of any part of the statute." (Giles v. Horn, supra, 100 Cal.App.4th at p. 220, 123 Cal.Rptr.2d 735.) 2. Owner-Occupancy Eviction From TORCA Condominium Units We are concerned with the interpretation and interaction of several provisions of the Santa Monica Charter, as set forth in the RCL and TORCA. We first look at 831 the plain language of the relevant provisions. We begin with the relevant provisions from the current version of the RCL. Section 1803, subdivision (t)(1)[3] provides, "Any landlord who desires to remove a controlled rental unit from the rental housing market by . . . conversion . . . is required to obtain a permit from the Board prior to such removal from the rental housing market in accordance with rules and regulations promulgated by the Board." Section 1813, however, provides, "Section 1803(t) of this Article shall not apply to any building for which approval has been received pursuant to [TORCA]. All other provisions of this Article, however, shall continue to apply with full force and effect to each unit in any building receiving approval pursuant to [TORCA]." Section 1806, subdivision (a) sets forth the bases for which a landlord of a controlled rental unit may evict a tenant. Section 1806, subdivision (a)(8) allows evictions for owner-occupancy; but section 1806, subdivision (a)(8)(vi) provides, "No eviction [for owner-occupancy] shall be allowed in any condominium . . . which has been converted from an apartment or other rental unit after [the effective date of the RCL], unless the [Board] has issued a removal permit or declared a vested right for said unit." Put simply, the plain language of the RCL provides that: (1) no conversion can be made without a removal permit; (2) no owner-occupancy eviction can be made from a condominium converted without a removal permit; but (3) TORCA conversions can be made without removal permits. To say the least, these provisions give rise to a potential ambiguity. Does the exemption of TORCA conversions from the removal permit requirement of section 1803, subdivision (t), exempt them from the removal permit prerequisite for owner-occupancy evictions of section 1806, subdivision (a)(8)(vi)? Or, in the alternative, does the exemption of TORCA conversions from the removal permit requirement result in their failure to meet the requirements for owner-occupancy evictions? Certain provisions from TORCA are also relevant. Section 2001, subdivision (j) defines the term "participating tenant" as any tenant "residing in the building at the date of the approval of the [TORCA] application." Section 2004, subdivision (b)(3) provides, "No participating tenant shall at any time after the approval of the [TORCA a]pplication be evicted for the purpose of occupancy by the owner . . . . In the event the participating tenant does not exercise his or her right to purchase within the time period set forth in [TORCA], the owner may transfer the unit without any price restriction to the participating tenant or any other person. However, in the event such transfer is to someone other than the participating tenant, the transfer shall be expressly made subject to the rights of the participating tenant to continue to occupy the unit as provided for in [TORCA]." Section 2004, subdivision (b)(4) provides, "Each unit shall at all times remain subject to all terms and conditions of [the RCL], before, during and after any [TORCA c]onversion. If any unit is rented, the maximum allowable rent for each unit shall be no greater than the maximum allowable rent allowed under [the RCL]." Section 2007 provides, "Section 1803(t) of this Charter shall not apply to any building for which a [TORCA a]pplication has been approved. Any provision of any ordinance of the City or any provision of the Municipal Code or any appendix thereto 832 inconsistent with the provisions of this Article, to the extent of such inconsistency and no further, shall not apply to the extent necessary to effect the provisions of this Article." (Italics added.) In sum, the plain language of TORCA protects "participating tenants" from owner-occupancy evictions, but gives no additional protections to "non-participating tenants." While the RCL, in general, applies to a TORCA conversion, TORCA conversions are expressly exempt from the RCL's removal permit requirement. Considering the language of the RCL in conjunction with TORCA, the construction that best gives effect to all provisions is one which renders TORCA conversions exempt from the RCL provision requiring removal permits for owner-occupancy evictions from condominium units. The entire TORCA scheme was designed to create an alternative to the procedure of conversion by removal permit. If all TORCA conversion owners are required to obtain a removal permit in order to evict non-participating tenants for owner-occupancy, TORCA's advantage of bypassing the removal permit requirement disappears. This conclusion is supported by TORCA's express limitation on owner-occupancy eviction of participating tenants. Had the Santa Monica voters intended to prevent owner-occupancy eviction of all tenants in TORCA conversions, such a provision easily could have been enacted as part of TORCA.[4] That the restriction on owner-occupancy eviction of all tenants is found in the RCL rather than TORCA supports the conclusion it was not meant to apply to TORCA conversions. It should logically follow that the RCL prohibition on owner-occupancy evictions in the absence of removal permits does not apply when TORCA has exempted the conversion from the removal permit requirement. The Board, however, argues that this interpretation of the Charter provisions is erroneous. The Board contends that our interpretation of section 1806, subdivision (a)(8)(vi), as not applying to TORCA conversions effectively renders that provision a nullity. Indeed, the Board contends that section 1806, subdivision (a)(8)(vi) applies only to TORCA conversions, and suggests it was adopted as a response to TORCA, to give greater protection to non-participating tenants. We disagree. The Board's argument is simply not supported by the relevant legislative history. On April 10, 1979, the voters of Santa Monica adopted Article XVIII of the Charter, the RCL. The RCL applied to all "controlled rental units" in the City, including condominium units which were rental properties. It established limits on the rent which could be charged and the grounds on which tenants could be evicted. It also regulated the removal of controlled rental units from the housing market. The RCL was intended to respond to the housing shortage and rising rents that 833 were becoming increasingly problematic to "the public health and welfare of Santa Monica tenants, especially the poor, minorities, students, young families, and senior citizens." (§ 1800.) As initially enacted by voters, the RCL allowed evictions for occupancy by the owner or the owner's relatives for any controlled rental units. (§ 1806, fmr. subd. (h).) The RCL also provided that "any landlord who desires to remove a controlled rental unit from the rental housing market by . . . conversion . . . is required to obtain a permit from the Board prior to such removal . . . ." (§ 1803, fmr. subd. (t).) The Board was permitted to approve a removal permit only if it found that removal of the unit would not adversely affect the City's low-income housing supply, if it would be economically infeasible for the landlord to retain and maintain the unit in habitable condition, or if the landlord intended to develop multifamily dwelling units, a minimum portion of which were to be low-income housing. (Ibid.) Nearly five years later, on June 5, 1984, the Santa Monica voters adopted TORCA, which radically increased the number of conversions by allowing conversions without removal permits if the tenants agreed. Under TORCA, an application for condominium conversion must be approved if tenants representing two-thirds of the units agreed to the conversion and tenants representing 50% of the units indicated their intent to purchase the units. (§ 2002, subds. (f) & (h).) TORCA specifically provided that RCL section 1803, subdivision (t), requiring removal permits for conversions, would not be applicable to TORCA conversions. (§ 2007.) TORCA provided that each unit would remain subject to the provisions of the RCL (including those governing maximum rent) with the exception of the removal permit requirement. (§ 2003, subd. (b)(4).) TORCA provided additional protection for participating tenants in the event they declined to buy their units. Most important was that, under a TORCA conversion, participating tenants could never be evicted for owner-occupancy. (§ 2004, subd. (b)(3).) This protection was not extended to non-participating tenants, who would still be subject to eviction for owner-occupancy under the RCL. (See Santa Monica City Attorney Informal Opinion Number 84-57.)[5] 834 During the same five year period between the adoption of the RCL and the adoption of TORCA, building owners fought the restrictions of the RCL in court. Prior to the adoption of the RCL, building owners had been able to convert their apartment buildings into condominiums simply by obtaining planning commission approval of their tentative tract maps. Some owners argued that obtaining planning commission approval prior to the effective date of the RCL gave them a vested right to proceed with the conversion without the need for removal permits. (E.g., Hazon-Iny Development, Inc. v. Unkefer (1980) 172 Cal.Rptr. 191, 116 Cal.App.3d Supp. 1, 3-4.) In June 1979, the City Council adopted an ordinance setting forth the circumstances in which it would be presumed that a property owner had a vested right to convert a building. (Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 863, 201 Cal.Rptr. 593, 679 P.2d 27.) When certain owners' application for a vested rights exemption was denied, they litigated the issue up to the California Supreme Court, arguing, among other things, that the state Subdivision Map Act preempted the City's attempt to regulate condominium conversions in the RCL. In April 1984, the Supreme Court rejected this argument, and upheld the RCL. (Id. at pp. 868-869, 201 Cal.Rptr. 593, 679 P.2d 27.) In the course of its opinion, however, the Supreme Court noted that obtaining subdivision map approval does grant the owner the right to subdivide the building, "that is, to sell fee interests in single apartment units." (Id. at p. 865, 201 Cal.Rptr. 593, 679 P.2d 27.) The court held, however, that the owner could not transfer those interests free of the general requirement that the owner of a controlled rental unit must obtain a permit before removing it from the rental market. (Id. at pp. 865-866, 201 Cal.Rptr. 593, 679 P.2d 27.) Building owners interpreted this language to create a loophole in the law (the "Santa Monica Pines loophole"). Santa Monica Pines held that fee interests in single apartment units could be sold, based on subdivision map approval alone. But since the RCL provided for owner-occupancy evictions, each new owner of an individual unit could then evict the tenant in the unit, thereby effectively removing the entire building from the controlled housing supply without obtaining removal permits or establishing a vested right. The Santa Monica City Council reacted to this interpretation with Ordinance No. 1318(CCS), which added section 4812 to the Santa Monica Municipal Code, prohibiting owner-occupancy evictions in condominiums converted without removal permits.[6] The ordinance expressly stated that its intention was to close the Santa Monica Pines loophole by prohibiting owner-occupancy evictions in "unlawfully" converted condominiums.[7] This ordinance 835 was adopted on October 23, 1984. Although the ordinance was adopted a few months after TORCA, it was clearly not intended to impact TORCA conversions at all.[8] Indeed, the "whereas" sections of the ordinance are written as though TORCA did not exist. Specifically, the ordinance states, "WHEREAS, it has been the understanding of the City of Santa Monica and the Santa Monica Rent Control Board that a removal permit is required in all cases of condominium conversion, including those cases where the landlord has secured and filed a final subdivision map; . . . ." While this is true with respect to the language of the RCL itself, a removal permit is not required in cases of condominium conversion under TORCA. The language of Municipal Code section 4812 was enacted only to address the Santa Monica Pines loophole. Clearly, it was not intended to address any perceived deficiency in TORCA. Although TORCA had been adopted in June 1984, the voters were not given an opportunity to enact conforming changes in the RCL until November 1984. Section 1803, subdivision (t) was the section of the RCL which required a landlord to obtain a removal permit prior to removing a unit from the rental housing market by conversion. TORCA had already provided that 836 this section was not applicable to TORCA conversions. (§ 2007.) In November 1984, Section 1813 was added to the RCL, providing, "Section 1803(t) of this Article shall not apply to any building for which approval has been received pursuant to [TORCA]. All other provisions of this Article, however, shall continue to apply with full force and effect to each unit in any building receiving approval pursuant to [TORCA]. Tenants residing in such units, whether or not `qualifying,' `participating,' or any other such designation under [TORCA], shall enjoy all the rights and remedies provided by [the RCL] without limitation as to duration or to ownership of the unit. This Section is declarative of existing law and does not impose any new requirements or limit any existing ones." At the same time, two other changes were made to the RCL, for the purpose of permanently closing the Santa Monica Pines loophole. First, section 1806, subdivision (h), allowing owner-occupancy evictions, was amended to incorporate the language of former Municipal Code section 4812, preventing owner-occupancy evictions in condominiums converted after the effective date of the RCL "unless the Rent Control Board has issued a removal permit or declared a vested right for said unit." (§ 1806, fmr. subd. (h)(6), now subd. (a)(8)(vi).) Second, a new subsection was added to section 1803, subdivision (t), governing removal permits. That subsection provides, "The Housing Element of the General Plan of the City of Santa Monica shall at all times contain a provision that neither the City Council nor any City agency shall approve an application for tentative subdivision map or tentative parcel map for a converted unit until and unless the applicant first obtains a removal permit as required by this Section. This subsection shall not apply to any tentative subdivision map or tentative parcel map approved in accordance with [TORCA]." (§ 1803, subd. (t)(3).) What is clear from this history is that the voters did not adopt the language now codified at section 1806, subdivision (a)(8)(vi) as a response to TORCA, in order to strengthen protections for non-participating tenants. Instead, the voters were simply adding to the RCL the language of a municipal code section which had been enacted to close the Santa Monica Pines loophole.[9] This conclusion is supported by the fact that, at the same time the voters adopted the language which was to become section 1806, subdivision (a)(8)(vi), they also adopted the language of section 1813 which made all sections of the RCL, except the removal permit requirement, applicable to TORCA units. Section 1813 specifically indicated it was declarative of existing law and was not adding any additional requirements. It is therefore unlikely the voters intended the simultaneously enacted section 1806, subdivision (a)(8)(vi) requirement to impose an additional burden on TORCA conversions. This legislative history supports our interpretation of the relevant Charter 837 language. TORCA's exemption from the removal permit requirement likewise exempts TORCA conversions from section 1806, subdivision (a)(8)(vi)'s prohibition on owner-occupancy evictions in units converted without removal permits. 3. Invalidity of Regulation Precluding Owner-Occupancy Eviction Four Years After Dismissal of Owner-Occupancy Eviction Attempt Section 1803, subdivision (g) of the RCL grants the Board the authority to promulgate rules and regulations "as will further the purposes of the Article." In 1993, the Board promulgated Regulation 9002, subdivision (b), which is specifically intended to govern evictions for owner-occupancy. Subdivision (b)(3) of Regulation 9002 (this subdivision shall be referred to as "the Regulation") provides, "Any owner who files suit against a tenant for eviction for owner or relative occupancy and who subsequently has the action dismissed, either voluntarily or involuntarily, is precluded from terminating that tenant's tenancy for owner or relative occupancy for four years from the date of dismissal, unless such dismissal is pursuant to a written settlement agreement between the owner and tenant negotiated at arms length and signed by both parties." A rent control provision enacted by a city cannot be given effect "to the extent that it conflicts with general laws either directly or by entering a field which general laws are intended to occupy to the exclusion of municipal regulation." (Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 141, 130 Cal.Rptr. 465, 550 P.2d 1001.) In Birkenfeld, our Supreme Court found no preemption of a rent control law that created additional substantive defenses to eviction, but struck down that part of the law which imposed additional procedural requirements on landlords attempting eviction. (Id. at pp. 149-151, 130 Cal.Rptr. 465, 550 P.2d 1001.) "Unlike the limitations imposed by the [rent control law] upon chargeable rents and upon the grounds for eviction, which can affect summary repossession proceedings only by making substantive defenses available to the tenant, the [mandated pre-eviction procedures] raise[] procedural barriers between the landlord and the judicial proceeding." (Id. at p. 151, 130 Cal.Rptr. 465, 550 P.2d 1001.) Similarly, in Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 693-698, 209 Cal.Rptr. 682, 693 P.2d 261, the Supreme Court struck down that portion of a rent control law which not only provided that retaliation would be a defense to an eviction, but provided that any eviction within six months of a tenant's exercise of rent control rights would be presumed to be retaliatory. The provision directly conflicted with the Evidence Code's allocation of the burden of proof (Evid.Code, § 500) and was therefore invalid. In this case, Bohbot contends the Regulation creates an impermissible conclusive presumption that a second owner-occupancy eviction attempted within four years of dismissal of an earlier eviction is brought in bad faith. The Board contends the Regulation is permissible as it creates only a substantive defense to eviction, not an improper procedural requirement.[10] *838 We find Bohbot's argument persuasive. To the extent the regulation creates a so-called "substantive defense," the "defense" it creates is based on the fact that the landlord voluntarily dismissed without prejudice a previous attempt to evict for owner-occupancy. The procedures governing unlawful detainer actions specify that, unless otherwise indicated, the general provisions of the Code of Civil Procedure apply to unlawful detainer actions. (Code Civ. Proc., § 1177.) These provisions include Code of Civil Procedure section 581, which permits plaintiffs to obtain voluntary dismissals without prejudice if sought prior to the commencement of trial. (Code Civ. Proc., § 581, subd. (b)(1).) In other words, the Regulation conflicts with the provisions of the Code of Civil Procedure which allow for the voluntary dismissal without prejudice of an unlawful detainer action. Calling this a substantive defense does not change the fact that the Regulation eliminates a procedural right granted to plaintiffs in unlawful detainer (and all other civil) actions. The Regulation cannot stand.[11] DISPOSITION The judgment is reversed. The case is remanded for entry of declaratory relief in favor of plaintiff Bohbot. Bohbot is to recover his costs on appeal. We Concur: KITCHING and ALDRICH, JJ. NOTES [1] Such tenants were defined as "participating tenants." [2] Bohbot alleged he dismissed the unlawful detainer action because his attorney had advised him that the collection of rent "had probably reestablished [Cope's] tenancy." Cope's counsel submitted a declaration suggesting Bohbot had dismissed the case rather than respond to Cope's motion to compel discovery. [3] All undesignated references are to the Santa Monica Charter. [4] TORCA's statement of purpose states, in pertinent part, "It is sound policy to encourage . . . Tenant-Participating Conversions to allow tenants to purchase the units which they occupy and, at the same time, protect tenants who do not purchase their units." (§ 2000, subd. (b).) The Board construes the phrase "protect tenants who do not purchase their units" to include non-participating tenants. This construction is not supported by the plain language of the Article. "Participating tenants" are all tenants residing in the building at the time of the conversion, including those who purchase their units and those who do not. (§ 2001, subd. (j).) "[T]enants who do not purchase their units" are participating tenants. Non-participating tenants are those who rented their units after the conversion and, by definition, were not given the opportunity to purchase mandated by TORCA. In short, there is nothing in TORCA's statement of purpose that indicates an intent to provide additional protections for non-participating tenants. [5] The parties to this appeal make much of this City Attorney Opinion. Its relevance is minimal. While subdivision (b)(3) of section 2003 of TORCA protected all participating tenants from owner-occupancy evictions indefinitely, subdivision (b)(7) of that section protected senior citizen and disabled participating tenants from owner-occupancy evictions indefinitely, and all other participating tenants from owner-occupancy evictions for five years. A City Councilmember sought clarification from the City Attorney of these apparently contradictory provisions. On May 21, 1984, the City Attorney issued an informal opinion, indicating that subdivision (b)(7) was a fail-safe provision which would take effect only if the RCL were inoperative. This view was set forth in the City Attorney's Analysis of Proposition X (which enacted TORCA) which appeared in the June 5, 1984 voter's pamphlet. Subsequently, subdivision (b)(7) of section 2003 was amended to explicitly state, "This subsection shall be interpreted in accordance with Santa Monica City Attorney Informal Opinion Number 84-57. All amendments to this Subsection are declaratory of existing law." The parties dispute the effect of this explicit reference to the City Attorney's opinion, given that, in the course of the City Attorney's opinion, the City Attorney noted that subdivision (b)(3)'s indefinite protection against owner-occupancy evictions of participating tenants did not extend to non-participating tenants. But it is clear that the inclusion of the reference to the City Attorney's opinion in subdivision (b)(7) of section 2003 is meant to refer to the actual holding of the City Attorney's opinion, regarding subdivision (b)(7)'s existence only as a fail-safe, and not the City Attorney's mention that subdivision (b)(3) did not apply to non-participating tenants. [6] The section was subsequently renumbered to Section 4.32.120. [7] The ordinance reads: "WHEREAS, in the interest of the public health, safety, and welfare, the Rent Control Charter Amendment . . . regulates evictions from residential rental units; and "WHEREAS, it is the intent and purpose of the Rent Control Charter Amendment to protect the rental housing stock and prevent evictions by regulating the removal of controlled rental units through conversion, demolition, or other means; and "WHEREAS, to protect the rental housing stock the Rent Control Charter Amendment requires a removal permit be issued prior to any such removal; and "WHEREAS, it has been the understanding of the City of Santa Monica and the Santa Monica Rent Control Board that a removal permit is required in all cases of condominium conversion, including those cases where the landlord has secured and filed a final subdivision map; and "WHEREAS, the California Supreme Court has affirmed the validity and necessity of the removal permit requirement in the case of [Santa Monica Pines]; and "WHEREAS, several landlords and developers in the City have construed [Santa Monica Pines] to allow sale of individual condominium units wherever the owner has secured and filed a final subdivision map, irrespective of whether a removal permit has been obtained; and "WHEREAS, section 1806 of the Rent Control Law limits the grounds for eviction but does not prohibit evictions for the purpose of owner and owner-relative occupancy; and "WHEREAS, by Regulation, the Rent Control Board has permitted one eviction per property by persons owning not less than 50% of the entire property for the purpose of owner or owner-relative occupancy; and "WHEREAS, developer[s] and landlords have contended that existing law allows the sale of converted apartment units without a removal permit, and thereafter allows the new owners thereof to evict tenants pursuant to [the provisions governing owner-occupancy evictions]; and "WHEREAS, this construction is contrary to the intent and purpose of the Rent Control Charter Amendment and is inimical to the public he[al]th, safety, and welfare; and "WHEREAS, buyers of unlawfully removed condominium units may be unaware that they will not be able to evict the present tenant in order to take personal occupancy; and "WHEREAS, unlawful conversions and evictions may occur which cause irreparable harm to renters and irreversibly deplete the supply of rental housing in the City of Santa Monica; and "WHEREAS, it is proper for the City Council to adopt curative regulations limiting evictions for owner-occupancy as originally intended by the voters and the Board, "NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS FOLLOWS: "SECTION 1. Section 4812 is hereby added to the Santa Monica Municipal Code to read as follows: "Section 4812. Tenant Evictions for Owner Occupancy. In addition to any other protections provided in the Municipal Code, the City Charter, or the laws of the State of California, no eviction for purposes of conversion or sale incident to conversion or for personal occupancy by the landlord or owner or relative of the landlord or owner shall be allowed in any condominium or stock cooperative unit unless the unit had first been created or converted from an apartment or other rental unit on or before April 10, 1979, or the Rent Control Board has issued a removal permit or declared a vested right for said unit." (Italics added.) [8] Nor would it. TORCA provided that inconsistent provisions of the Municipal Code would not apply to the extent of the inconsistency. (§ 2007.) [9] The Board relies on a staff report by the City Attorney to the Mayor and City Council setting forth the rationale for the amendments to be submitted to the voters in November 1984. Taking certain phrases out of context, the Board argues the language now codified at section 1806, subdivision (a)(8)(vi) was intended to "prohibit evictions in converted condominium units." (City Attorney's June 10, 1984 Staff Report, p. 2.) Obviously this statement should not be taken at face value; the amendment itself excepted conversions for which removal permits had been obtained. What is clear from the staff report, and wholly overlooked by the Board, is that the language currently found at section 1806, subdivision (a)(8)(vi) was expressly intended to close the Santa Monica Pines loophole. (Id. at p. 20.) [10] The Board represents that the Regulation was adopted in order to "address abuses by landlords who file successive attempts to evict the same tenant for owner-occupancy. Prior to its adoption, tenants under these circumstances were forced to repeatedly defend against eviction in cases where the landlord would withdraw the suit prior to judgment if he/she believed the tenant might prevail. In response, [the Regulation] was adopted as a substantive defense to harassment by continual litigation." [11] We note that invalidation of the Regulation does not leave tenants without remedy for abuse of the unlawful detainer process. RCL section 1806, subdivision (a)(8) permits only those owner-occupancy evictions brought in "good faith." Santa Monica Municipal Code section 4.56.020 prohibits acts of tenant harassment, including malicious unlawful detainer actions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2629475/	219 P.3d 592 (2009) 347 Or. 290 MATTHEWS v. MILLS. (S057679). Supreme Court of Oregon. October 21, 2009. Petition for review denied.	01-03-2023	11-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2629620/	219 P.3d 1231 (2009) STATE of Kansas, Appellee, v. Ricardo F. RIVERA, Appellant. No. 100,470. Court of Appeals of Kansas. November 25, 2009. 1233 Heather Cessna, of Kansas Appellate Defender Office, for appellant. 1234 Bradford L. Williams, assistant county attorney, Matthew W. Ricke, county attorney, and Steve Six, attorney general, for appellee. Before MALONE, P.J., PIERRON and LEBEN, JJ. LEBEN, J. Ricardo Rivera appeals his conviction for two counts of rape, raising several claims of error: (1) that the district court relieved the State of its burden to prove that the rape took place in Kingman County, (2) that the district court failed to make the State specify which actions it relied upon for each rape charge, resulting in the possibility of a nonunanimous jury verdict, (3) that the district court failed to give Rivera a new attorney after a conflict arose with the attorney who represented him at trial, and (4) that prosecutorial misconduct tainted the jury trial. After careful review of the record, we find no error. The State charged two separate rapes based on events occurring in a rural area and different acts taking place at a residence in Kingman. We find that the State presented the two events in a way that left no real possibility of a nonunanimous verdict. And while the victim's testimony left some question regarding the exact rural location at which one rape occurred, the district court's somewhat inconsistent instructions on the State's obligation to prove venue could not have reasonably misled the jury given the evidence in this case. The district court held a hearing before trial on Rivera's motion for new counsel, and the court's decision that the existing attorney could continue to represent Rivera was reasonable. Finally, we find no prosecutorial misconduct in this case; the prosecutor's statements that Rivera complains about were fair comment on the evidence presented. I. The Trial Court's Jury Instructions on Venue, Though in Error, Do Not Require Reversal. The State's evidence told of two rapes. One occurred during a stop as the victim was driving on rural roads with Rivera as a passenger, and the other occurred at the victim's residence in Kingman. The victim indicated that she hadn't had a good sense of direction as she had tried to drive Rivera from Kingman to his home in Murdock. So the State asked the district court to give the jury an instruction based on K.S.A. 22-2604, which provides that when a crime is committed so near the boundary between two counties that it can't be readily determined in which county the crime occurred, the State may prosecute it in either county. The district court gave that instructionover Rivera's objectionin addition to a typical instruction on the elements of the offense that said the State must prove that each rape occurred in Kingman County. On appeal, Rivera contends that the State was required to prove, beyond a reasonable doubt, that the crime took place in Kingman County. Rivera argues that the special venue instruction lessened the State's burden. The State counters that the special venue instruction is authorized by K.S.A. 22-2604 for cases like this one. We will set out the full instructions given by the district court on this question because they are inconsistent with one another. In Instruction No. 4, the district court gave a standard instruction, based upon a pattern jury instruction, PIK Crim.3d 57.01, for the elements of the rape charge: "The defendant is charged with the crime of rape in Count 1. The defendant pleads not guilty. "To establish these charges, each of the following claims must be proved: 1. That the defendant had sexual intercourse with [the victim]; 2. That the act of sexual intercourse was committed without the consent of [the victim] under circumstances when: a. She was overcome by force or fear; and 3. That this act occurred on or about the 26th day of August, 2007, in Kingman County, Kansas." Thus, in Instruction No. 4, the district court told the jury that the State had to prove that the crime took place in Kingman County. But in Instruction No. 9, the district court 1235 told the jury that when it couldn't be readily determined where a crime near the county boundary had occurred, the State could prosecute the case in either county: "Where a crime is committed on or so near the boundary of two or more counties that it cannot be readily determined in which county the crime was committed, the prosecution may be in any of such counties." When an instruction is given over the defendant's objection, appellate courts must review the instructions as a whole. We do not reverse based on an instructional error if the instructions as a whole fairly state the law as applied to the facts in that case and the jury could not reasonably have been misled by them. As a general matter, errors that do not actually prejudice the defendant's substantial rights do not require reversal if substantial justice has been done. State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). In Rivera's case, whatever the law may be, the existence of an instruction error seems apparent because the two instructions we've quoted are inconsistent. As stated in Instruction No. 4, the State had to prove that the rape occurred in Kingman County. So why did the jury need to know that the State could bring the case either in Kingman County or a neighboring county if was difficult to determine in which county the rape had occurred? To sort this out, we first need to identify several concepts that have intersected in these instructions. Instruction No. 4 is what we generally call the elements instruction, which sets forth the elements that the State must prove to obtain a conviction for the specific crime charged. But our usual nomenclature is actually a bit imprecise here because the last item included in that elements instructionthat the crime took place in Kingman County, Kansasis not actually an element of the crime. Crimes are defined in Kansas by the legislature, and it has defined rape in K.S.A. 21-3502. That statute contains no required element regarding where the crime took place. Beyond the elements, though, two other requirements are key to prosecuting someone for a crime: jurisdiction and venue. The court must have personal jurisdiction over the defendant and subject-matter jurisdiction over the crime. And venue must be proper, meaning that the case is being tried in the correct court. The issue now before us centers around this venue requirement. Like many states, Kansas has a venue-related provision in its state constitution. Section 10 of the Bill of Rights of the Kansas Constitution provides that the accused in a criminal case is entitled to "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." Since Kansas selects jurors from within each county, the net result is that unless the defendant waives this right, see, e.g., K.S.A. 22-2616, a defendant's trial must occur in the county in which the crime was committed. See Addington v. State, 199 Kan. 554, 559-60, 431 P.2d 532 (1967). That rule has also been placed in a statute, K.S.A. 22-2602, which requires that a case be prosecuted "in the county where the crime was committed" unless otherwise provided by law. But that rule is subject to some exceptions. One such exception is found in K.S.A. 22-2603, which allows the trial in either of two counties when two or more acts are required to commit an offense and at least one of them occurs in each county. The Kansas Supreme Court considered the constitutionality of that exception in Addington. The court concluded that Section 10 of the Kansas Bill of Rights brought with it certain common-law concepts, including the established rule now reflected in K.S.A. 22-2603 that when an offense occurred partly in two counties, the trial can be in either county. Thus, the Addington court held that the statute, which was an identical predecessor to K.S.A. 22-2603, was constitutional. Our Supreme Court has also noted that exceptions like the ones found in K.S.A. 22-2603 and K.S.A. 22-2604 are based on the commonsense notion that a criminal should not escape punishment because the crime's exact location was concealed. State v. Grissom, 251 Kan. 851, 889, 840 P.2d 1142 (1992). These venue provisions are considered jurisdictional in Kansas. Thus, "the prosecution of an accused, over his objection, 1236 in a local jurisdiction other than that fixed by the legislature is void." Addington, 199 Kan. 554, Syl. ¶ 11, 431 P.2d 532. Other decisions have referred to the proof of the proper venue for trial as a jurisdictional fact that must be proved by the State in every case, a fact that the jury must determine. State v. Hunt, 285 Kan. 855, 859, 176 P.3d 183 (2008); State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978). Apparently because Kansas law requires that the jurisdictional facts supporting proper venue be proved in every case, the committee that prepares pattern jury instructions has included venue as one of the elements of each offense. Thus, even though it isn't strictly an element of the offense, it is, as a practical matter, handled as if it were. And as far as we can determine, the committee has not provided any comments on how to modify that portion of the elements instruction if a situation like the one in Addington is encountered. With these concepts in mind, let's now return to Rivera's case. The district court gave the standard elements instruction, which included the requirement that the crime must have taken place in Kingman County. Neither the State nor Rivera suggested any modification to that instruction. The district court also gave a separate instruction, based on K.S.A. 22-2604, telling the jury that a case may be prosecuted in either of two counties when its commission was so near the county line that it can't be readily determined where it was committed. The State requested that instruction; Rivera objected to it. The State requested the instruction because the defense had spent considerable time in cross-examination of the victim about where the country rape had taken place. Rivera's attorney agreed that the statute, which was mirrored in the instruction, was "a correct statement of the law," but he said the instruction wasn't needed because "the jury can figure out what county it occurred in." The district court asked whether he "intend[ed] to argue that the evidence is lacking as to where this occurred," and Rivera's attorney admitted, "Well, that could happen, yes." The district court ruled that because Rivera's attorney had focused on the victim's uncertainty about the location in cross-examination, "it's appropriate to include this instruction... [s]o that the jury can draw whatever conclusions they want to draw about the appropriateness of the prosecution as to the out of town series of facts." The district court's instructions were in error because Instruction No. 9, if it has any application to Rivera's case, contradicts Instruction No. 4. Instruction No. 4 says quite clearly that the crime must have been committed in Kingman County, while Instruction No. 9 offers additional possibilities. We recognize that a jury is supposed to consider all of the instructions together and try to harmonize them. A juror might conclude that Instruction No. 9 was supposed to modify Instruction No. 4 so as to allow the crime to have been committed either in Kingman County or its neighboring county. That apparently was the district court's intention. But that's a pretty confusing way to express that concept to lay jurors. We have no quarrel with the committee that has drafted the pattern instructions in its conclusion that it makes sense to include the required jurisdictional facts for venue as part of the elements instruction for each crime charged. But when one of the exceptions to prosecution in the single county in which the crime was committed applies, the district court should amend the elements instruction to tell the jury what jurisdictional facts must be proved. Here, for example, the last portion of the elements instruction given as Instruction No. 4 could have been revised this way to reflect the impact of K.S.A. 22-2604: That this act occurred on or about August 26, 2007, either (a) in Kingman County, Kansas, or (b) in a neighboring county if you find that the crime was committed so near the boundary of Kingman County that it cannot be readily determined in which county the crime was committed. By doing so, the jury would have been told exactly what the State had to prove. District courts should use pattern instructions when they are applicable, but they also should modify them when a change is needed to 1237 make them accurate for a specific case. Dixon, 289 Kan. 46, Syl. ¶ 10, 209 P.3d 675. But a modification of the standard elements instruction is called for in situations that involve jurisdictional facts other than the general one in which the crime occurred within the county of trial. The Kansas Supreme Court dealt with a similar situation in Hunt. The State had charged the defendant with murder. The body had been found in Crawford County, but the victim had last been seen in neighboring Bourbon County. When an act causes a death in one county but the death occurs in another county, the prosecution may be in either county under K.S.A. 22-2611. That statute also provides that death is presumed to have occurred in the county where the body was found. Thus, under K.S.A. 22-2611, the act of murder takes place in both the county in which a person fatally injures another and in the county where death occurs, but a jury may presume in the absence of other evidence that death took place where the body was found. 285 Kan. at 860, 864, 176 P.3d 183. The Hunt opinion concluded that the jury should have been instructed that, to convict the defendant, it must find that the murder occurred in Crawford County and also instructed that it's ordinarily presumed that death occurred in the county where a body is found. 285 Kan. at 864, 176 P.3d 183. Our ruling is consistent with Hunt in holding that the jury should have been given an instruction about the specific venue rule at issue. Even though the instruction given to Rivera's jury was somewhat in error, we conclude that reversal is not required because the jury could not possibly have been misled. To convict Rivera, under any understanding of the instructions, each juror must have concluded either that the crime occurred in Kingman County or that it took place so near the county line that it couldn't be readily determined in which county the crime took place. And in either of those situations, if found by the jury, K.S.A. 22-2604 squarely authorized prosecution of Rivera in Kingman County. Although K.S.A. 22-2604 permits Rivera's prosecution in Kingman County, the evidence presented to the jury also strongly suggests that the crime did take place in Kingman County. The victim said that she was trying to take Rivera back to his residence in Murdock; she also said that the furthest distance they drove was to Rago. We can readily take account of the location of Kansas towns. See Ehrsam v. Borgen, 185 Kan. 776, 778, 347 P.2d 260 (1959). Murdock is about 9 miles east and 2 miles south of Kingman; Rago is about 1 mile east and 13 miles south of Kingman. From Rago, it's still about 4 miles further south to reach the county line; from Murdock, it's still about 6 miles further east to reach the county line. As jurors from Kingman County would have known, her testimony didn't appear to make it at all likely that she had left Kingman County even though she said that she wasn't sure of her directions on the country roads. But even if the parties did cross the Kingman County line before the rural rape took place, K.S.A. 22-2604 still authorized prosecution in Kingman County. Rivera's argument on appeal is that even though K.S.A. 22-2604 allows prosecution in either county, the State still must prove "that the crime occurred with the county[ ] because it is an element of the crime." On this point, Rivera confuses the proof of the jurisdictional fact of venue with the actual elements of rape. Where the crime took place is not an element of rape under K.S.A. 21-3502. It's simply a jurisdictional fact that must be proved in compliance with the general venue statute, K.S.A. 22-2602, and the exception applicable in Rivera's case, K.S.A. 22-2604. The State's evidence met its burden of proof as to the jurisdictional facts of venue in Rivera's case. We note that Rivera has not raised any claim, either before the district court or on appeal, that K.S.A. 22-2604 is unconstitutional as beyond the scope of Section 10 of the Kansas Bill of Rights. While the Addington case determined that a similar provision, the predecessor to our current K.S.A. 22-2603, was within the common-law understanding incorporated into Section 10 of the Kansas Bill of Rights, we are not aware of any Kansas appellate decision that has considered the constitutionality of K.S.A. 22-2604, 1238 and we express no position on that question. See 22 C.J.S., Criminal Law § 181. II. No Problem Exists with the Unanimity of the Jury Verdict. Rivera next claims that because the victim said that sexual intercourse started, stopped, and restarted at each of the two locations at which she said she was raped, there is a danger that the jury didn't unanimously agree about which of Rivera's acts constituted each of the two rapes. The district court did not give the jury a unanimity instruction, which tells the jury that it must agree upon the specific act that constitutes each crime. Jury verdicts must be unanimous, so a problem may arise when the State presents evidence of more than one act that could constitute one of the crimes charged. When a question of juror unanimity is raised, our first task is to determine whether the case is indeed a multiple-acts case. If not, there's no unanimity problem. State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007). The core question here is whether the defendant's conduct related to each charge is part of one overall act or represents multiple acts that are separate and distinct, such as when independent criminal acts have occurred at different times or when a later criminal act is motivated by a fresh impulse. State v. Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007). The Kansas Supreme Court has applied the current tests for multiple-acts cases in two cases. In Voyles, two victims testified or made statements to relatives that could have supported the charging of a separate count of aggravated indecent solicitation and aggravated sodomy for encounters occurring at five different locations, all apparently on different days, for each girl. That evidence potentially indicated 20 different offenses, but the State charged only 8-2 counts of aggravated indecent solicitation and of aggravated sodomy per girl. Thus, Voyles held that it was a multiple-acts case: the jury could have amalgamated the testimony regarding acts at different locations to convict the defendant. 284 Kan. at 244, 160 P.3d 794. In Stevens, the court found that a charge of driving under the influence of alcohol was not a multiple-acts case even if alternative means of violating the statute were alleged. Rather, the driver engaged in a continuous course of conduct that wasn't motivated by a fresh impulse. 285 Kan. at 314, 172 P.3d 570. Whether a case is a multiple-acts case is a question of law that the appellate court considers independently. Voyles, 284 Kan. 239, Syl. ¶ 1, 160 P.3d 794. A related legal question to the unanimity issue is multiplicity, where the State charges as multiple offenses what is really just one. See State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). Under the multiplicity doctrine, the State is forbidden in some cases from charging multiple counts of rape or attempted rape when seemingly separate acts have occurred within a short time or as a continuous course of events. See State v. Dorsey, 224 Kan. 152, 156, 578 P.2d 261 (1978) (State could not charge three different attempted rapes when less than an hour separated the acts). Because the issues of unanimity and multiplicity are closely related, some panels of our court have considered the Schoonover factors for multiplicity when determining whether a case is a multiple-acts case. E.g., State v. Schofield, 2009 WL 2242424, at 2 (Kan.App.2009) (unpublished opinion); State v. Soriano-Garcia, 2008 WL 142104, at 2 (Kan.App.) (unpublished opinion), rev. denied 286 Kan. 1185 (2008). Thus, in addition to the statement of the test from Voyles and Stevens, we may also consider whether the acts occurred at or near the same time, whether they occurred in the same location, whether an intervening event or a causal relationship existed, and whether a fresh impulse motivated the acts. Schoonover, 281 Kan. at 507, 133 P.3d 48. To determine whether each charge against Rivera was a multiple-acts charge, we must review the testimony of the victim in greater detail. She said that Rivera came to her apartment in Kingman shortly after midnight and that he said that he was too intoxicated to drive home to Murdock. She agreed that he could sleep on the couch. When Rivera made sexual advances, she rebuffed them and offered to drive him home. He agreed, and they left in his car. At Rivera's request, 1239 she agreed to take back roads because he said he had an open case of beer in the backseat. During the trip, Rivera made her stop twice. At the first stop, he got out to relieve himself but then made another unsuccessful advance. At the second stop, Rivera said he felt sick, and he leaned out of the car. After a few minutes, he sat up and pulled the keys out of the ignition. He then began to choke her, and the parties struggled in the car. She was unable to break his grip around her neck. After a time, Rivera stopped choking her. He told her that they were going to have sex, and he told her to remove her pants. He then ordered her out of the car. He first tried to have intercourse on the trunk, but it didn't work. He then had sex with her on the hood of the car and later by the front car door. The victim said that the encounter lasted about an hour and that Rivera made her perform oral sex on him during that time. She eventually persuaded him to stop, and he told her to drive him back to her apartment. During the trip back, he threatened to kill the victim and her son if she reported the rape. After the parties returned to Kingman, Rivera raped her again in her apartment. She said that this encounter lasted about half an hour. She said that intercourse stopped at one point because she told Rivera that she wanted to go find some lubricant (which she didn't have), but he quickly brought her back to the bedroom and resumed intercourse when she didn't return with the lubricant. Rivera eventually passed out at around 5 o'clock in the morning. Rivera contends that although there were only two rape charges, the victim testified that Rivera forced her to have oral and vaginal sex several times over a 5-hour period in two different locations. He contends therefore that different members of the jury could have found separate acts for each of the rapes, thus presenting a multiple-acts case. The State argues that there were two separate incidents, one in a rural area when the car was stopped, and one at her apartment in Kingman. Rivera essentially wants to require that the State choose which specific act it relies upon to support the rape charge at each location. Under this argument, the jury would need to parse each separate penetration and withdrawal. For example, the State would have to specify that its rape charge for the rural rape specifically charged vaginal penetration by force on the car's hood, not by the car's front door after Rivera moved the victim to a different position. We do not believe that Kansas law requires such a macabre exercise. The acts were charged in two countsone for conduct in rural Kingman County and one for conduct at the victim's Kingman apartment. Each of the counts stood alone; neither of them were multiple-acts counts under Voyles. All of the acts for one count occurred just outside Rivera's car, and all of the acts for the other count occurred in the victim's bedroom. While the victim said that the events at the car took about an hour in total, the events charged as rape (intercourse on the car's hood and near the car's front door) occurred in a fairly continuous sequence, generally interrupted only to change positions, at Rivera's direction, or to have the victim perform oral sex on him to allow him to gain or maintain an erection so that he could continue. Similarly, the events in the victim's bedroom occurred in a fairly continuous sequence, interrupted only by her brief attempt to stall by looking for a lubricant product that wasn't in the apartment at all. While it may be arguable whether a fresh impulse existed once Rivera returned to the victim's apartment, that factor doesn't override the others we've noted in this case, and Rivera has not argued that the convictions were multiplicitous, i.e., that he could only be charged with one rape for the entire sequence of conduct. Further, there was plenty of time for Rivera's initial impulse to attack the victim to subside on the trip back to her apartment. In sum, we conclude that the two counts of rape were supported by the evidence and that neither count was by itself a multiple-acts offense. Our decision is consistent with two prior decisions from our court. In State v. Villanueva, 29 Kan. App. 2d 1056, 1064, 35 P.3d 936 1240 (2001), rev'd on other grounds 274 Kan. 20, 49 P.3d 481 (2002), the defendant was convicted of rape. The State presented evidence that the defendant penetrated the vagina using his finger and, later, his penis. Penetration by either the finger or the penis constitutes sexual intercourse, which combined with lack of consent and a victim who is overcome by force or fear constitutes rape. See K.S.A. 21-3501; K.S.A. 21-3502. But even though penetration by either the finger or the penis would have been sufficient to prove rape, combined with the other evidence, our court rejected the defendant's claim that a unanimity instruction was needed because the attack "was one continuous event." 29 Kan. App. 2d at 1064, 35 P.3d 936. More recently, in State v. Most, 2009 WL 2371008, at 9 (Kan.App.2009) (unpublished opinion), pet. for review pending, the defendant was convicted of two counts of aggravated indecent liberties with a child for having sexual intercourse with a child under the age of 16. Once again, the State's evidence for each of the two separate incidents was that the defendant had put his fingers and, later, his penis into the girl's vagina. Here too, sexual intercourse for the purposes of an aggravated-indecent-liberties charge may be found after penetration by either a finger or a penis. Our court again concluded that this was not a multiple-acts case: each charge represented a separate incident, even though the defendant penetrated the girl in each incident with both his fingers and his penis. As a practical matter, the rules for determining when a case is a multiple-acts case are designed to ensure that the jury actually has agreed unanimously that the charged crime occurred. As Justice Carol A. Beier noted in an academic discussion of these rules, they must be "suitably pragmatic and protective" when applied to the myriad of cases that are encountered. See Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 321 (2005). She also noted another case of interest, State v. Staggs, 27 Kan. App. 2d 865, 9 P.3d 601, rev. denied 270 Kan. 903 (2000). In Staggs, the defendantcharged with one count of aggravated batteryhad both punched and kicked the victim during a fight. A panel of our court concluded that it wasn't a multiple-acts case because "the evidence established a continuous incident that simply cannot be factually separated." 27 Kan. App. 2d at 868, 9 P.3d 601. We agree with Justice Beier's comment that there need be no requirement that the State elect a specific act or the jury be given a unanimity instruction when "the acts at issue occur in a series over a very short time and form parts of a whole." 44 Washburn L.J. at 301. We believe that the factual situation of our case, like those found in Villanueva and Most, is such a case, not a multiple-acts case under Voyles. During closing argument, the prosecutor told the jury that one count of rape was based on what occurred in rural Kingman County and that the other count was based on what occurred later at the victim's apartment in Kingman. The prosecutor accurately separated the two distinct incidents that were, indeed, separate for unanimity purposes. The State did not need to further elect, with respect to the rape by the car, whether it was prosecuting the attack on the car's hood or by the car's front door. Nor did the State need to further elect, with respect to the rape in the apartment, whether it was prosecuting the attack beforeor afterthe victim attempted to distract Rivera by searching for a lubricant that wasn't there. III. The District Court Properly Denied Rivera's Motion for a New Attorney. Less than a month after Michael Brown was appointed by the court to represent Rivera, Rivera moved to discharge Brown because Rivera said the attorney hadn't responded to Rivera's communication requests. The district court held a hearing to consider the matter within 3 weeks of the motion's filing, and more than 3 months before the case was tried. At that hearing, the district court asked Brown about the extent of Brown's contact with his client. In response to additional questions from the court, Brown said that he did not believe that communication had so broken down that he would be unable to represent Rivera effectively, and Brown said 1241 that he felt it was possible that other attorneys appointed to replace him would face similar problems. After hearing these comments, Rivera said he had nothing further to add. The district court denied the motion, noting: &lhblk; That Brown had filed a motion to reduce Rivera's bond that was heard by the court within a week of Brown's appointment; &lhblk; That Brown had promptly requested discovery materials from the State, and that Brown had forwarded that information to Rivera within 3 weeks of Brown's appointment; and &lhblk; That Brown had handled at least dozens of serious sex-offense cases. Rivera contends on appeal that the district court should have dismissed Brown and that Rivera's right to be represented by "conflict-free" counsel was violated because Brown essentially argued against Rivera's motion to dismiss Brown. A criminal defendant has a fundamental right to effective counsel under the Sixth Amendment to the United States Constitution, and that right applies to the states through the Fourteenth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). This right includes the right to representation free from conflicts of interest. State v. Toney, 39 Kan. App. 2d 1036, 1040, 187 P.3d 138 (2008). When the trial court becomes aware of a possible conflict of interest between a defendant and his or her attorney, the court must make an inquiry to ensure that the defendant's Sixth Amendment right to counsel is protected. The court abuses its discretion if it doesn't do so. State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). Here, the district court made an appropriate inquiry into Rivera's complaint. The district court first asked Rivera about his complaints. The court then required that Brown explain what sort of communications he'd had with his client. Brown did so without revealing confidential information. The court then gave Rivera a final opportunity to add anything he might want to before the court ruled. And the court reviewed the court file to determine when the attorney had been appointed, what actions the attorney had taken to date, and the timeliness of those actions. After reviewing that information, the district court was impressed by how quickly the attorney had obtained a hearing on a motion to review the defendant's bond: "To be in court within a week on that is very timely. Can't get in court much quicker than that." The court was also impressed by how quickly the attorney had obtained the relevant discovery materials and forwarded them to his client: "It doesn't get any quicker than that...." We find no error in the district court's denial of Rivera's motion to dismiss his attorney. IV. The Prosecutor Did Not Commit Misconduct in Closing Argument. Rivera's next argument is that the prosecutor committed misconduct in his closing argument to the jury. Rivera specifically argues that the prosecutor improperly bolstered the credibility of the victim and improperly expressed personal opinions during this segment of the closing argument: "You told meI asked you, the Court's instructed you, you would decide this case on what you hear [from the witness stand]. And everything you heard from there ... backed up what [the victim] told you. I don't know where the beer went out of the back seat of the car. They didn't seize the car until the next, until late that night. I don't know who had access to the car. But I know one thing, [the victim] was on the hood of that car. That I know. "And I want you, when you go back there, I want you to ask yourself a question. And that question is simply this. Why? Why would she tell you this story if it wasn't true? "... She's got nothing to gain. She's got nothing but embarrassment and guilty feelings...." We review allegations of prosecutorial misconduct in two stages. First, we must determine whether the prosecutor has committed misconduct by exceeding the wide latitude given an attorney to argue the case *1242 based upon the evidence. Second, if we find misconduct, we must consider whether the misconduct prejudiced the defendant and denied him or her a fair trial. In making that determination, we consider whether the comments were gross and flagrant, whether they were motivated by ill will, and whether the evidence was so overwhelming that the comments probably had little effect on the jury's consideration of the case. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009). We are not entirely sure whether the prosecutor has gone beyond the wide latitude afforded for argument. The quoted comments were all in response to the defense attorney's closing argument, in which he said that the victim's story didn't "make any sense" and emphasized various potential pieces of evidence that the State hadn't brought before the jury or explained. Defense counsel questioned whether DNA evidence gathered from the hood, which showed a match to the victim, might simply have been there because she'd been around the defendant (who presumably had been around his car) or because she'd been around the car before. That led to the prosecutor's responsive argument that the "one thing" he knew in the case was that the victim had been on the car's hood. In his initial argument, the prosecutor had noted the DNA evidence that supported that claim as well as the photos of the hood that showed a pattern of dust that he also said supported the victim's testimony about what had happened on the car's hood. The prosecutor's statement about what he knew seems to us merely the use of a figure of speech or rhetorical technique rather than an expression of knowledge based on the prosecutor's own personal investigation. In common speech, we often say, "I believe" or "I think" or even the stronger "I know" without actually trying to pass something off as our own independent knowledge. See Goutis v. Express Transport, Inc., 699 So. 2d 757, 763-64 (Fla.Dist.App.1997), disapproved on other grounds by Murphy v. Int'l Robotic Systems, 766 So. 2d 1010, 1031 (Fla.2000); Forman v. Wallshein, 671 So. 2d 872, 874-75 (Fla.Dist.App.1996). The prosecutor's discussion of whether the victim had any motive to lie was in response to the defense attorney's closing argument. We also generally do not find prosecutorial misconduct requiring reversal in limited responses to the defendant's closing argument. See State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008). But even if we find that the prosecutor went beyond the normal latitude afforded in closing argument, we conclude that it did not prejudice the defendant or deny him a fair trial. The comments were brief and made directly in response to the defendant's closing argument. We do not find them to have been gross or flagrant or motivated by ill will. And the evidence of guilt in this case was quite strong: the victim testified consistently with her past statements, and physical evidence corroborated her testimony. See State v. Morton, 38 Kan. App. 2d 967, 974, 174 P.3d 904, rev. denied 286 Kan. 1184 (2008) (finding no reversible error even though prosecutor may have improperly bolstered victim's credibility). We find no reversible error based on prosecutorial misconduct. V. No Other Error Requires Reversal Here. The defendant has raised two other issues on appeal, but neither has merit. First, he argues cumulative error. Since we have not found error at all, we find no cumulative error, either. Second, he argues that the district court violated his constitutional rights when it chose the aggravated sentence. Kansas guidelines give the district court three potential sentences to choose from: a standard sentence, a higher sentence (called the aggravated sentence), and a lower sentence (called the mitigated sentence). In Rivera's case, the district court picked the higher number for a longer sentence. Rivera argues that this is unconstitutional under Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), but his argument was rejected by the Kansas Supreme Court in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008). We are of course bound by its decision. The judgment of the district court is therefore affirmed.	01-03-2023	11-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2632562/	2004 UT App 418 State of Utah, Plaintiff and Appellee, v. Raymond Michael Quintana, Defendant and Appellant. Case No. 20030471-CA. Utah Court of Appeals. Filed November 12, 2004. This memorandum decision is subject to revision before publication in the Pacific Reporter. David C. Biggs and Kent R. Hart, Salt Lake City, for Appellant. Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee. Before Judges Bench, Davis, and Thorne. MEMORANDUM DECISION BENCH, Associate Presiding Judge: ¶1 Raymond Michael Quintana appeals his convictions for burglary, see Utah Code Ann. § 76-6-202 (2003), and theft, see Utah Code Ann. § 76-6-404 (2003). ¶2 Quintana first argues that fingerprint evidence is inherently unreliable and thus inadmissible under rule 702 of the Utah Rules of Evidence. We review a trial court's decision to admit expert evidence under an abuse of discretion standard. See State v. Schultz, 2002 UT App 366,¶18, 58 P.3d 879. ¶3 Rule 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Utah R. Evid. 702. Admissibility under rule 702 hinges on "whether . . . `the evidence will be helpful to the finder of fact.'" State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993) (quoting State v. Rimmasch, 775 P.2d 388, 398 n.8 (1989)). ¶4 If an expert testifies regarding "novel scientific principles and techniques," then the court first applies the separate "threshold reliability test" of State v. Rimmasch, 775 P.2d 388 (Utah 1989). Schultz, 2002 UT App 366 at ¶21. However, if the expert testifies regarding scientific methods that have "'attained general acceptance in . . . the relevant scientific community,'" the additional Rimmasch test does not apply. Id. at ¶22 (alteration in original) (quoting Patey v. Lainhart, 1999 UT 31,¶16, 977 P.2d 1193). ¶5 Quintana argues that lack of empirical research on fingerprint evidence requires us to apply the Rimmasch test. However, we conclude that fingerprint identification is not novel scientific evidence. See, e.g., United States v. Crisp, 324 F.3d 261, 266 (4th Cir.) ("Fingerprint identification has been admissible as reliable evidence in criminal trials in this country since at least 1911."), cert. denied, 124 S. Ct. 220 (2003); United States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003) ("Fingerprint evidence and analysis is generally accepted."); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001) ("[F]ingerprinting techniques have been tested in the adversarial system . . . ."). ¶6 The case of State v. Hamilton, 827 P.2d 232 (Utah 1992), supports the notion that fingerprint evidence is not novel and raises no special evidentiary concerns. In Hamilton, the defendant argued that fingerprint evidence was insufficient to support his murder conviction because the prosecution presented no evidence establishing that the fingerprints were left at the time the crime was committed. See id. at 236. However, the Utah Supreme Court rejected this argument, holding that "we . . . treat[] fingerprint evidence like any other evidence and [do not] evaluate[] its sufficiency to support a conviction by a separate, more stringent standard." Id. at 237. Thus, the supreme court clearly indicated that fingerprint evidence is not "subject to reliability problems" sufficient to justify special treatment. Id. In light of Hamilton and a longstanding reliance on fingerprint evidence, the trial court did not abuse its discretion when it admitted the fingerprint expert's testimony.[1] ¶7 Quintana next argues that, even assuming the admissibility of the fingerprint identification, the State did not present sufficient evidence to support his conviction. Quintana's position is similar to that of the defendant in Hamilton. Quintana contends that where fingerprint identification is the only evidence supporting conviction, the State must offer additional evidence establishing that he left the prints at the time of the crime. See id. at 236. The Utah Supreme Court has already rejected this argument: "We treat[] fingerprint evidence like any other piece of evidence whether or not there is additional evidence." Id. at 237. The jury therefore could have properly concluded that the single fingerprint found on a laquer box in the victims' home belonged to Quintana and that the fingerprint was left at the time the home was burglarized. See id. at 236 (noting that on appeal, the court reviews the evidence in the light most favorable to the jury verdict). ¶8 Finally, Quintana contends that the trial court erred in failing to instruct the jury on the lesser included offense of criminal trespass. See Utah Code Ann. § 76-6-206 (2003). Quintana argues that because the State did not present evidence showing when the fingerprint was left, the jury could have concluded that he entered the home at a time prior to the burglary and touched the box with only the intent of committing criminal trespass. We review the trial court's determination of this issue for correctness. See State v. Knight, 2003 UT App 354,¶8, 79 P.3d 969. ¶9 To demonstrate error, Quintana must show that the evidence at trial provided "'a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.'" State v. Baker, 671 P.2d 152, 159 (Utah 1983) (quoting Utah Code section 76-1-402(4) (1973)). However, the evidence here presented no rational basis for a conviction on the lesser included offense. As Quintana has noted, he "has never admitted entering the [victims'] home at the time of the burglary." Indeed, he has never admitted to entering the home at any time. In order for the jury to rationally convict on the lesser included offense, Quintana must point to some evidence indicating that he entered the home at a time other than the burglary. See State v. Cox, 826 P.2d 656, 662-63 (Utah Ct. App. 1992) ("No evidence was presented suggesting that [the] defendant entered the property with intent to commit a crime other than theft."). Such evidence is absent here, and the trial court did not err when refusing to instruct the jury on the proposed lesser included offense. ¶10 Accordingly, we affirm the convictions. ¶11 I CONCUR: James Z. Davis, Judge. THORNE, Judge (concurring): ¶12 Although fingerprint evidence has never truly been put to the test in either the courtroom or the scientific community,[2] I concur with the decision to affirm Quintana's conviction. I would add, however, one element to the decision: trial courts should be directed to instruct juries about the existing weaknesses of fingerprint examiner training and identification protocol.[3] ¶13 Assuming, for the moment, that each fingerprint is unique and identifiable, most evidence points to a lack of consistent training of examiners and an absence of any nationally recognized standard to ensure that examiners are equipped to perform the tasks expected of them. See Jessica M. Sombat, Note, Latent Justice: Daubert's Impact on the Evaluation of Fingerprint Identification Testimony, 70 Fordham L. Rev. 2819, 2850-51 (2002) (highlighting the existence of disparate standards throughout the United States, and the world, for making a positive identification through fingerprint evidence). Under other circumstances, this might not be so troubling, but fingerprint evidence has been afforded a near magical quality in our culture. See Tara Marie La Morte, Comment, Sleeping Gatekeepers: United States v. Llera Plaza and the Unreliability of Forensic Fingerprinting Evidence Under Daubert, 14 Alb. L.J. Sci. & Tech. 171, 208-09 (2003) (highlighting studies that show the extraordinary value that jurors place on forensic evidence such as fingerprint examiner testimony). In essence, we have adopted a cultural assumption that a government representative's assertion that a defendant's fingerprint was found at a crime scene is an infallible fact, and not merely the examiner's opinion. See Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brook. L. Rev. 13, 28 (2001) ("From its earliest uses as legal evidence, fingerprint identification was generally presented in the language of certainty, rather than in the language of opinion."). As a consequence, fingerprint evidence is often all that is needed to convict a defendant, even in the absence of any other evidence of guilt. See, e.g., id. at 38-39. ¶14 Unfortunately, our societal acceptance of the infallibility of examiners' opinions appears to be misplaced. See La Morte, supra, at 207-08 (identifying several incidents where an identification, used to obtain a conviction, was a false positive identification, and stating that "fingerprint identification evidence is neither foolproof nor infallible"). Failure on any level clearly shows that examiner opinion is not infallible. Such fallibility, in light of society's trust in forensic certainty, opens our courts to a great risk of misidentification, and after examining the standards used to determine an examiner's proficiency, it is a risk that we should have understood long ago, and should never have allowed without certain precautions. Specifically, we should instruct our juries that although there may be a scientific basis to believe that fingerprints are unique, there is no similar basis to believe that examiners are infallible. In the absence of any nationally accepted credentialing process, the jury may be in the best position to determine whether a purported fingerprint expert properly determined that a latent fingerprint, left at the scene of a crime, matches a defendant's fingerprint. ¶15 Until there is a nationally adopted certification systemensuring examiner proficiencyand a nationally adopted minimum standard for matching latent fingerprints to known samplesminimizing the risk of misidentificationcourts should ensure that juries are instructed that examiner testimony is informed opinion, but not fact.[4] However, there was no request for such an instruction in this case. ¶16 Accordingly, I agree with the decision to affirm Quintana's conviction. NOTES [1] We also note that Quintana presented no evidence of irregularity in the identification in his case. The Salt Lake City Crime Laboratory requires that two fingerprints share a minimum of ten characteristics to support an identification. Here, the expert identified over fourteen matching characteristics. [2] See generally, Jessica M. Sombat, Note, Latent Justice: Daubert's Impact on the Evaluation of Fingerprint Identification Testimony, 70 Fordham L. Rev. 2819 (2002); Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brook. L. Rev. 13, 21 (2001) ("[E]ven if palm marks [and fingerprints] are different, it does not necessarily mean that experts can identify these differences with a high degree of accuracy."). [3] Although, as set forth by the majority opinion, State v. Hamilton, 827 P.2d 232 (Utah 1992), discusses fingerprint evidence as a form of circumstantial evidence, it discusses neither the subject's mechanics, nor its relevant strengths and weaknesses. See id. at 236-38. Hamilton instead focused on a proposed jury instruction concerning the timing of the placement of the fingerprints, and the defendant's attempt to differentiate fingerprint evidence from other circumstantial evidence. See id. at 238 n.2. Thus, Hamilton does not, in any way, preclude our requiring an instruction describing the nature of fingerprint examiner testimony as opinion, not fact, and directing the jury to examine the fingerprint examiner's training and credentials in determining whether or not to give credence to the examiner's testimony. I concede that Hamilton concluded that fingerprint evidence does not share the problems inherent to eyewitness identification. See id. at 237. However, to the extent that this statement is presented as an imprimatur of fingerprint examination and fingerprint examiners, I would invite the supreme court to revisit this issue. [4] The trial court provided the jury with a general instruction concerning the weight and value of expert testimony, and through this instruction charged the jury with determining the value of the testimony. However, due to the nature of the evidence involved in the testimony, I believe that the jury should have been specifically instructed that the examiner's testimony was opinion and not fact and that the jurors should examine the fingerprint evidence independently. It is vital that we remove the near mystical awe that fingerprints evoke, and replace it with a more cautious regard for forensic evidence and its overall lack of certainty.	01-03-2023	11-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2632566/	103 P.3d 1157 (2004) 196 Or. App. 565 Robert W. STROUP, Appellant, v. Jean HILL, Superintendent, Eastern Oregon Correctional Institution, Respondent. CV01-1727; A119664. Court of Appeals of Oregon. Argued and Submitted June 28, 2004. Decided December 15, 2004. 1158 Susan F. Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter A. Ozanne, Executive Director, Office of Public Defense Services. Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges. EDMONDS, P.J. Petitioner appeals from a judgment dismissing his petition for post-conviction relief. ORS 138.510 et seq. He asserts that the post-conviction court erred in rejecting his claims for relief. We affirm. In 2000, petitioner was charged with 11 separate counts in six separate criminal cases. Petitioner faced a maximum sentence of 59 years of imprisonment if convicted of all charges. In January 2001, petitioner entered into a plea agreement pursuant to which he pled no contest to the following charges: felon in possession of a firearm, assault in the fourth degree, attempt to elude, and failure to appear. The parties agreed that the sentences on the convictions would be served concurrently. Pursuant to the agreement, the state dismissed the remaining charges, and the court sentenced petitioner to 60 months of imprisonment to be followed by 36 months of post-prison supervision for the felon in possession of a 1159 firearm conviction under ORS 166.270.[1] A conviction for felon in possession of a firearm is a Class C felony for which a maximum sentence of five years can be imposed. ORS 161.605(3). The imposition of three years of post-prison supervision caused the sentence to exceed the maximum allowable by law. Layton v. Hall, 181 Or.App. 581, 47 P.3d 898 (2002). At sentencing, the trial court explained to petitioner that he had a limited right to appeal. Petitioner did not challenge the lawfulness of the sentence at sentencing or on direct appeal. Thereafter, petitioner brought this case for post-conviction relief, asserting that the sentence for felon in possession of a firearm should be vacated because it exceeds the statutory maximum sentence for a Class C felony as provided by ORS 161.605 and OAR XXX-XXX-XXXX(4). The post-conviction court found that petitioner's decision to accept the plea agreement was a tactical decision, that he was provided with adequate assistance of counsel, and that there was no reason that he could not have raised his objections to the sentence at trial or on direct appeal. The post-conviction court also found that petitioner understood that the sentence imposed consisted of 60 months imprisonment and 36 months of post-prison supervision. Although the post-conviction court agreed with petitioner that his sentence exceeded the maximum permitted by law, it concluded that petitioner's post-conviction relief claims are barred by Palmer v. State of Oregon, 318 Or. 352, 867 P.2d 1368 (1994). On appeal, we understand petitioner to contend that, although he did not challenge his sentence before the trial court or on direct appeal, his post-conviction challenges are independently cognizable under ORS 138.530(1)(a), (b), and (c) on the ground that his sentence is void. He contends that the trial court lacked authority to enter a sentence in excess of the maximum sentences allowed by law, thus entitling him to relief pursuant to ORS 138.530(1)(b) and (c), and that his sentence results in a substantial denial of his due process rights under ORS 138.530(1)(a).[2] He also asserts that the post-conviction court's conclusion that he was not denied adequate assistance of counsel is error. We review the post-conviction court's judgment for errors of law and for evidence to support its findings. Smart v. Maass, 148 Or.App. 431, 434, 939 P.2d 1184, rev. den., 326 Or. 62, 944 P.2d 949 (1997). First, we disagree that the trial court lacked jurisdiction to impose a sentence under ORS 138.530(1)(b) as petitioner contends. Petitioner was lawfully charged and convicted of felon in possession of a firearm, and nothing deprived the trial court of jurisdiction to impose a sentence on that conviction. We turn next to petitioner's argument that he is entitled to post-conviction relief under ORS 138.530(1)(c) because the trial court lacked authority under ORS 161.605 and OAR XXX-XXX-XXXX(4) to impose the sentence. In support of his argument, petitioner quotes the following from State v. Horsley, 168 Or.App. 559, 561-62, 7 P.3d 646 (2000): "Sentences that violate the statutes lack valid sentencing authority, ORS 137.010(1), and the trial court may modify them as necessary. See State v. Leathers, 271 Or. 236, 240-41, 531 P.2d 901 (1975) (stating 1160 that an invalid sentence does not divest the trial court of jurisdiction); State v. Cotton, 240 Or. 252, 254, 400 P.2d 1022 (1965) (holding that the defendant's original sentence was void because it violated the sentencing statutes); State v. Pinkowsky, 111 Or.App. 166, 169, 826 P.2d 10 (1992) (holding that the trial court retained authority to modify a sentence to impose a missing, but required, term of post-prison supervision). " * * * * "A trial court has a duty to pass sentence in accordance with the pertinent sentencing statutes, ORS 137.010(1), and a sentence's validity is determined solely by how well it comports with those statutes. See Cotton, 240 Or. at 254, 400 P.2d 1022 (`The court in imposing punishment for a criminal offense is limited strictly to the provisions of the applicable statute, and any deviation from the statute in the mode, extent or place of punishment renders the judgment void.')." A petitioner must comply with the requirements set forth in ORS 138.550 in order to state a legally cognizable claim for post-conviction relief.[3] A petitioner cannot obtain post-conviction relief under the statute on any ground that reasonably could have been raised at trial or on direct appeal unless the petitioner demonstrates that the failure to raise the issue falls within one of several "narrowly drawn exceptions."[4] ORS 138.550(2); Palmer, 318 Or. at 358, 867 P.2d 1368; Walton v. Thompson, 196 Or.App. 335, 340-42, 102 P.3d 687 (2004). Therefore, petitioner must demonstrate that he could not reasonably have been expected to raise his challenge under ORS 138.530(1)(c) at trial or on direct appeal. We understand petitioner to contend that an objection to his sentence could not have reasonably been raised before the post-conviction proceeding because ORS 138.222(2)(d) precludes appellate courts from reviewing a sentence resulting from a stipulated sentencing agreement. See State v. Kephart, 320 Or. 433, 443, 446, 887 P.2d 774 (1994) (evaluating legislative history of ORS 138.222(2)(d) and concluding that legislature intended to permit appellate review of illegal sentences "unless there was a stipulated sentence" (internal quotation marks omitted)); see also State v. Upton, 132 Or.App. 579, 584, 889 P.2d 376, rev. den., 320 Or. 749, 891 P.2d 659 (1995) (an agreement that "set[s] the specific sentence to be imposed and the court impose[s] that sentence" is not reviewable on appeal, given the prohibition of ORS 138.222(2)(d)). Although ORS 138.222(2)(d) precludes appellate review of petitioner's sentence, it does not follow therefrom that petitioner was precluded from withdrawing 1161 his plea made pursuant to the agreement before sentencing in the trial court. Petitioner has not alleged any other circumstances to show why he reasonably could not have been expected to raise his objection before sentencing. We therefore conclude that, although petitioner has alleged a valid substantive ground for post-conviction relief, he has not satisfied the procedural requirement of ORS 138.550(2). Walton, 196 Or.App. at 342, 102 P.3d 687. We turn to petitioner's argument that his sentence violates his constitutional rights. He argues that due process requires that aggravating factors supporting a sentence greater than a statutory maximum sentence must be pled and proved. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Based on Apprendi and its progeny, petitioner argues, "Here, petitioner pleaded guilty to a Class C felony. However, he was sentenced as if he had been found guilty of a Class B felony. Petitioner was not indicted for a Class B felony, and he was not found guilty of a Class B felony. If a trial court cannot exceed a statutory maximum sentence based on unpleaded and unproven aggravating factors, it most certainly cannot impose a sentence that no aggravating factors could possibly support." Petitioner's challenge appears to invoke the provisions of ORS 138.530(1)(c) that pertain to the unconstitutionality of a sentence. Here again, Palmer and Walton control our analysis because petitioner has failed to comply with ORS 138.550. Except for his inadequate assistance of counsel claim, petitioner's challenges fail under the above reasoning. We turn to petitioner's inadequate assistance of counsel claims under the state and federal constitutions. Petitioner contends that his trial counsel failed to inform him that the stipulated sentence exceeded the statutory maximum and that, without such advice, he could not knowingly and intelligently consent to the stipulated plea agreement. The standards for determining inadequate assistance of counsel under the state and federal constitutions are similar. To prevail on a post-conviction claim of inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, petitioner has the burden of showing, by a preponderance of the evidence, facts demonstrating that his trial counsel failed to exercise reasonable professional skill and judgment and that counsel's failure had a tendency to affect the result of his criminal trial, that is, that petitioner suffered prejudice as a result. ORS 138.620(2); Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991); Horn v. Hill, 180 Or.App. 139, 149, 41 P.3d 1127 (2002). To show that trial counsel's representation violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution, petitioner must show that counsel's acts or omissions were not the result of an exercise of reasonable professional judgment and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). More specifically, in order to prevail under either the state or federal constitutions in a case involving a guilty or no contest plea, a petitioner "must demonstrate `that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.' Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366 [370], 88 L. Ed. 2d 203, 210 (1985); see also Moen v. Peterson, 312 Or. 503, 513, 824 P.2d 404 (1991) (holding that under ORS 138.530(1)(a), which directs a court to grant post conviction relief only when a `substantial denial' of rights occurs, the petitioner was required to show that, had he been informed of the possibility of a minimum sentence, he would not have pleaded no contest)." Saroian v. State of Oregon, 154 Or.App. 112, 117-18, 961 P.2d 252 (1998) (brackets in original); see also Long v. State of Oregon, 130 Or.App. 198, 204, 880 P.2d 509 (1994). Petitioner pled guilty based on an agreement to a specific sentence. The agreement negotiated by counsel provided for dismissal of other charges, including the more serious 1162 felony offenses subject to Measure 11. Before entering into the stipulated plea agreement, petitioner faced a maximum sentence of 59 years if convicted of all of the charges against him. The state initially offered a plea agreement that would have resulted in a 121-month prison sentence. Petitioner does not assert that he would not have entered into the eventual plea agreement had he known that his sentence exceeded the statutory maximum. As noted, the post-conviction court found that petitioner knew before the sentence was imposed that it consisted of 60 months of imprisonment and 36 months of post-prison supervision. There is evidence in the record to support the above findings.[5] In light of the trial court's findings and the above circumstances, we agree with the court that petitioner has not demonstrated that any inadequacy of his trial counsel led to a different result in the proceeding. Affirmed. NOTES [1] The charges dismissed included the more serious felony offenses of kidnapping in the first degree and second-degree assault, offenses that are subject to Ballot Measure 11 (1994), codified at ORS 137.700. [2] ORS 138.530(1) provides: "Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner: "(a) A substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void. "(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner's conviction. "(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence. "(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted." [3] ORS 138.550 provides, in part, "The effect of prior judicial proceedings concerning the conviction of petitioner which is challenged in the petition shall be as specified in this section and not otherwise: "(1) The failure of petitioner to have sought appellate review of the conviction, or to have raised matters alleged in the petition at the trial of the petitioner, shall not affect the availability of relief under ORS 138.510 to 138.680. But no proceeding under ORS 138.510 to 138.680 shall be pursued while direct appellate review of the conviction of the petitioner, a motion for new trial, or a motion in arrest of judgment remains available. "(2) When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. If petitioner was not represented by counsel in the direct appellate review proceeding, due to lack of funds to retain such counsel and the failure of the court to appoint counsel for that proceeding, any ground for relief under ORS 138.510 to 138.680 which was not specifically decided by the appellate court may be asserted in the first petition for relief under ORS 138.510 to 138.680, unless otherwise provided in this section." [4] Those exceptions include: "`[W]here the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right. Also, the failure to assert the right would not be a bar where counsel was incompetent or was guilty of bad faith.'" Palmer, 318 Or. at 357, 867 P.2d 1368 (quoting North v. Cupp, 254 Or. 451, 457, 461 P.2d 271 (1969), cert. den., 397 U.S. 1054, 90 S. Ct. 1396, 25 L. Ed. 2d 670 (1970)). [5] Because there is evidence to support the post-conviction court's finding in that regard, petitioner's claim on appeal that he did not enter into the plea agreement in a knowing fashion also has no merit.	01-03-2023	11-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/1173006/	693 P.2d 412 (1984) HILO CRANE SERVICE, INC., Plaintiff, v. James G.Y. HO, dba Polynesian Construction Co.; Florence J. Ho; and State of Hawaii, Defendants; and James G.Y. HO, dba Polynesian Construction Co.; and Florence J. Ho, Third-Party Plaintiffs, v. Daniel R. MATSUKAGE; Real Estate Finance Corporation; and Clifford N. Gamble, Third-Party Defendants; and Pacific Standard Life Insurance Company, Third-Party Defendant-Appellant and Cross-Appellee. RODRIGUES PLUMBING, INC., Plaintiff, v. James G.Y. HO; Florence Judith Ho; Midpac Lumber Co., Ltd.; Granger-Pacific, Inc.; Bank of Hawaii; Shield-Pacific, Ltd.; Hilo Crane Service, Inc.; Weacco, Inc.; Harold T. Kurisu; Ken Johnston; State of Hawaii; and United States of America, Defendants; Pacific Standard Life Insurance Company, Defendant-Appellant and Cross-Appellee; and Pacific Standard Investment & Loan, Inc., Defendant-Appellee and Cross-Appellant; MIDPAC LUMBER CO., LTD., Third-Party Plaintiff, v. Noriyoshi MATSUMURA, Third-Party Defendant; and James G.Y. HO and Florence Judith HO, Third-Party Plaintiffs, v. Daniel R. MATSUKAGE; Real Estate Finance Corporation; and Clifford 413 N. Gamble, Third-Party Defendants. TOM OKANO ELECTRIC, INC., a Hawaii corporation, Plaintiff, v. James G.Y. HO, dba Polynesian Construction Company; James G.Y. Ho, General Contractor; James G.Y. Ho and Florence Judith Ho, husband and wife, Lessees; State of Hawaii, by the Department of Land and Natural Resources, Owner of Fee; Midpac Lumber Company, Ltd., a Hawaii corporation, Surety; State of Hawaii, by its Department of Taxation; State of Hawaii, by its Department of Labor and Industrial Relations; Real Estate Finance Corporation, a Hawaii corporation; United States of America, by its United States Attorney for the District of Hawaii; Ken Johnston; Weacco, Inc., a California corporation; Hilo Crane Service, Inc., a Hawaii corporation; and Rodrigues Plumbing, Inc., a Hawaii corporation, Defendants; Pacific Standard Life Insurance Company, an Arizona corporation, Defendant-Appellant and Cross-Appellee; and Pacific Standard Investment and Loan, Inc., a Hawaii Corporation, Defendant-Appellee and Cross-Appellant; and James G.Y. Ho, dba Polynesian Construction Company; James G.Y. Ho, General Contractor; and James G.Y. Ho and Florence Judith Ho, husband and wife, Third-Party Plaintiffs, v. Daniel R. MATSUKAGE and Clifford N. Gamble, Third-Party Defendants. No. 9454. Intermediate Court of Appeals of Hawaii. December 21, 1984. 415 John Jubinsky, Honolulu (Paul S. Aoki and Trudy K. Senda, Honolulu, with him on the briefs; Ashford & Wriston, Honolulu, of counsel), for defendant-appellant and cross-appellee. Glenn S. Hara, Hilo (Roy Y. Yempuku, Honolulu, with him on the briefs), for defendant-appellee and cross-appellant. Before BURNS, C.J., TANAKA, J., and DONALD K. TSUKIYAMA, Circuit Judge, in Place of HEEN, J., Excused. TANAKA, Judge. In a foreclosure case, defendant Pacific Standard Life Insurance Company (PSLIC) appeals from the judgment subordinating its first mortgage lien to the second and third mortgage liens of Pacific Standard Investment & Loan, Inc., now known as Pacific Loan, Inc. (Pac Loan). Pac Loan cross-appeals from the amended judgment reducing the judgment amount in its favor against defendants James G.Y. Ho (James 416 Ho) and Florence J. Ho (collectively the Hos). As to both appeals, we reverse. I. FACTS A. The Corporate Entities and Individuals Involved The identification of the various corporate entities and individuals and their relationship are important in the analysis and discussion of this case. Pacific Standard Life Company (Parent Company) is a Delaware corporation. PSLIC is an Arizona corporation engaged in the insurance business. It is a wholly owned subsidiary of Parent Company. Pac Loan, a Hawaii corporation, was incorporated in 1971 and is a licensed industrial loan company under Hawaii Revised Statutes (HRS) chapter 408. From the date of its incorporation until September 29, 1975, Pac Loan was a wholly owned subsidiary of Parent Company. Real Estate Finance Corporation (REFC), incorporated in 1964, is a Hawaii corporation and a mortgage banking company. From 1969 until September 29, 1975, REFC was a wholly owned subsidiary of Parent Company. PSL Associates, Inc. (PSLA), a Hawaii corporation, is engaged in the general insurance agency and insurance brokerage business. Until September 29, 1975, PSLA was a wholly owned subsidiary of Parent Company. Since its incorporation in 1970, Aloha Development Corporation (Aloha Development) has been a wholly owned subsidiary of Parent Company. By agreement dated September 29, 1975, Parent Company sold, and Daniel R. Matsukage (Matsukage) and his wife Nobuko Matsukage (collectively the Matsukages) purchased, all of the issued and outstanding shares of capital stock of Pac Loan, REFC, and PSLA for $1,024,577.30, payable $102,457.73 down and $922,119.57 by way of a promissory note. The agreement required the Matsukages, inter alia, to elect two nominees of Parent Company to the boards of directors of Pac Loan, REFC, and PSLA so long as the promissory note remained outstanding. As nominees of Parent Company, Clifford N. Gamble (Gamble) and Edgar L. Fickle (Fickle) were elected to Pac Loan's 4-member board of directors[1] on September 30, 1975. Gamble and Fickle were reelected and continued to serve as directors until July 19, 1978.[2] Gamble was a shareholder, chairman of the board, chief executive officer, and director of Parent Company from 1967 and during all relevant times. He also was the chairman of the board of PSLIC during the same period of time and served as PSLIC's president and chief executive officer from 1967 to December 1978. During 1976 and 1977, he was a director and officer of Aloha Development. As indicated above, Gamble served as director of Pac Loan from September 30, 1975 to July 19, 1978. Fickle served as a director of Pac Loan from 1971 until July 19, 1978. He also served as Pac Loan's vice president from March 9, 1973 to September 30, 1975. He was PSLIC's executive vice president and director from 1967 and during all relevant times. During all relevant times in the case, Fickle served as executive vice-president, treasurer, and director of Parent Company, and a director of Aloha Development. He was a director of REFC from 1969 to 1975. Matsukage served as a director of Parent Company from 1969 to 1975. He served as an officer and director of Pac Loan and REFC even while they were subsidiaries of Parent Company. He was Pac Loan's president and director from 1971 to sometime in June, 1981. He also served as president and director of REFC from 1964 and during all relevant times. From 1973 through 417 1976, Matsukage was a director and an officer of Aloha Development. In 1981, Pac Loan was in financial straits and in violation of certain industrial loan laws. The state bank examiner offered Matsukage the alternative of either turning over all shares of Pac Loan's capital stock to Thrift Guaranty Corporation of Hawaii[3] (Thrift Guaranty) or having Pac Loan placed under receivership. The Matsukages agreed to the former alternative and Thrift Guaranty became the sole shareholder of Pac Loan in June 1981. Thereafter, Pac Loan changed its name from Pacific Standard Investment & Loan, Inc. to Pacific Loan, Inc. The first of the three mortgages in question had its genesis in 1974. In December 1974, the Hos were the owners of a lease-hold property located on Banyan Drive, Hilo, Hawaii (Banyan Property). B. The Mortgage Loans On December 27, 1974, the Hos borrowed $1,900,000 from REFC for the construction of a hotel on the Banyan Property. The loan was evidenced by a note to mature in one year and secured by a mortgage encumbering the Banyan Property. On December 30, 1974, REFC assigned the note and mortgage to PSLIC.[4] The mortgage and assignment were duly recorded. The December 27, 1974 mortgage is hereinafter referred to as the "PSLIC Mortgage." On October 1, 1975, the Hos executed and delivered to Pac Loan a $66,000 note payable on April 1, 1976, which was secured by a mortgage encumbering the Banyan Property (Loan 550). The recorded mortgage stated that it was subject to the PSLIC Mortgage. From the Loan 550 proceeds, the Hos received $9,838.92 and the balance was used to refinance Loan Nos. 460 and 520 which were unsecured. On April 28, 1976, the Hos executed and delivered to Pac Loan a $50,000 note which was secured by a mortgage encumbering the Banyan Property (Loan 598). The recorded mortgage stated that it was subject to the PSLIC Mortgage and the Loan 550 mortgage. On December 29, 1976, PSLIC loaned $250,000 to the Hos. The loan was evidenced by a note and secured by an additional charge mortgage on the Banyan Property. The additional charge mortgage was recorded.[5] C. The Judicial Proceedings James Ho, doing business as Polynesian Construction Co., was the general contractor for the hotel project on the Banyan Property. In 1978, three subcontractors filed complaints to foreclose their mechanics' and materialmen's liens (mechanics' liens) Hilo Crane Service, Inc. (Hilo Crane) in Civil No. 5139, Rodrigues Plumbing, Inc. (Rodrigues Plumbing) in Civil No. 5261, and Tom Okano Electric, Inc. (Okano Electric) in Civil No. 5348. On November 13, 1979, Civil Nos. 5139, 5261, and 5348 were consolidated for hearing and trial. The consolidated cases name the Hos, PSLIC, Pac Loan, REFC, Matsukage, Gamble, and other alleged lienors as defendants or third-party defendants. The pleadings include many cross-claims by various parties against other parties. On October 21, 1981, the circuit court found mechanics' liens in favor of Hilo 418 Crane ($12,230.98), Rodrigues Plumbing ($37,533.33), and Okano Electric ($15,497.02) and entered its foreclosure decree appointing a commissioner to sell the Banyan Property. At a public auction held by the commissioner on December 7, 1981, PSLIC was the sole bidder at $1,000,000. At the confirmation hearing on January 14, 1982, PSLIC's counsel represented to the court that, subject to the confirmation of the foreclosure sale, PSLIC had agreed to (1) settle and purchase the claims of Hilo Crane, Rodrigues Plumbing, and Okano Electric; (2) settle and purchase the claim of another mechanic's lienor, Midpac Lumber Co., Ltd.; (3) bring delinquent lease rents of approximately $42,400 current; (4) pay the accrued but unpaid real property taxes of about $79,129; (5) pay the commissioner's fee ($15,000) and costs ($1,931.72); and (6) not assert against or pursue the Hos for any deficiency arising from the proceedings the amount owing under the PSLIC Mortgage loan being $3,170,286.77 and under the additional charge mortgage loan being $250,000 plus interest. On March 5, 1982, the circuit court entered its orders, inter alia, (1) granting PSLIC's December 18, 1981 motion for partial summary judgment, thereby determining that the PSLIC Mortgage was valid and the debt thereby secured was $3,170,286.77; (2) approving the commissioner's report and confirming the sale of the Banyan Property to PSLIC for $1,000,000, subject to PSLIC's agreements disclosed at the confirmation hearing; and (3) providing for a subsequent trial to determine the priorities of the liens of PSLIC, Pac Loan, and any other parties. A bench trial to determine lien priorities commenced on April 23 and concluded on April 29, 1982. All other parties having dismissed their claims, disclaimed, or been defaulted, the only parties involved in the trial were PSLIC and Pac Loan. On May 4, 1982, the circuit court entered a $227,628.48 judgment for Pac Loan against the Hos (May 4, 1982 Judgment). This was based on the court's February 2, 1982 findings and conclusions that the Hos owed Pac Loan $126,949.23 on Loan 550 and $100,679.25 on Loan 598 and that the mortgages securing those loans were valid liens on the Banyan Property. On May 12, 1982, PSLIC filed a motion for relief from the May 4, 1982 Judgment. PSLIC contended that (1) evidence adduced at the priorities trial revealed that on April 1, 1978, $38,423.98 had been paid on Loan 550 and (2) although the judgment was against the Hos, PSLIC will be adversely affected by the erroneous judgment if the court should subordinate the PSLIC Mortgage to Pac Loan's mortgages. On December 22, 1982, the circuit court entered its order recognizing the April 1, 1978 payment or credit of $38,423.98, reducing the Loan 550 balance to $27,576.02, allowing interest thereon from April 1, 1978, and reducing the total judgment from $227,628.48 to $128,247.33. An amended judgment of $128,247.33 for Pac Loan against the Hos was entered on the same day (December 22, 1982 Amended Judgment). On December 30, 1982, the circuit court entered its findings of fact and conclusions of law (December 30, 1982 Findings and Conclusions) whereby it subordinated PSLIC Mortgage to Pac Loan's mortgages securing Loans 550 and 598. In accordance with the December 30, 1982 Findings and Conclusions, a final judgment in favor of Pac Loan was filed on June 2, 1983.[6] Thereafter, PSLIC appealed and Pac Loan cross-appealed. II. PSLIC'S APPEAL PSLIC does not challenge any of the trial court's findings of fact. However, it contends that conclusions of law Nos. 10, 11, and 12 in the December 30, 1982 Findings and Conclusions are erroneous. Those conclusions read as follows: 419 10. It would be inequitable under the facts of this case to allow PSLIC to have a prior lien over Pac Loan to the proceeds of sale of the security in this foreclosure action since to do so would allow Parent Company, Fickle, Gamble, and Matsukage to profit from their inequitable conduct. 11. The mortgage liens of PSLIC on the Banyan Property is subordinate to Pac Loan's mortgage liens securing [Loans 550 and 598]. 12. Pac Loan is entitled to be paid according to the AMENDED JUDGMENT (filed 12/22/82) from the proceeds of the sale of the subject property prior to any payment to PSLIC. Record, Vol. 13 at 89. It is clear from the record that the trial court's conclusions subordinating PSLIC's Mortgage lien to those of Pac Loan's was based on the doctrine of equitable subordination urged upon the court by Pac Loan. For the reasons stated below, we hold that, based on the facts in this case, the trial court erred in applying the doctrine of equitable subordination.[7] A. Standard of Review Here, we are asked to review the trial court's conclusions of law. An appellate court may freely review legal conclusions and the applicable standard of review is the right/wrong test. See 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2588 (1971); Molokoa Village Development Co. v. Kauai Electric Co. Ltd., 60 Haw. 582, 593 P.2d 375 (1979); Block v. Lea, 5 Haw. App. 266, 688 P.2d 724 (1984). Pac Loan claims that, since an equitable remedy decreed by the trial court is at issue, the applicable standard of review is abuse of discretion. We disagree. Before we can reach the issue of discretion, we must decide whether, legally, the doctrine of equitable subordination is properly applicable outside the bankruptcy context. If deemed applicable, we must then decide whether, based on its findings of fact, the trial court correctly concluded that the application of the doctrine was proper. B. The Applicability of the Doctrine of Equitable Subordination in Non-Bankruptcy Cases The doctrine of equitable subordination permits a bankruptcy court, under its general equity power, "to subordinate a creditor's claim to other claims or classes toward which the creditor has behaved unfairly." Cohn, Subordinated Claims: Their Classification and Voting Under Chapter 11 of the Bankruptcy Code, 56 Am.Bankr.L.J. 293, 300 (1982). Its development has been through case law which has been codified in Section 510(c) of the Bankruptcy Code of 1978, 11 U.S.C. § 510(c) (1982).[8]See 3 Collier on Bankruptcy ¶ 510.05 (15th ed. 1984). PSLIC doubts "the propriety of applying equitable subordination in a non-bankruptcy action." We join in the doubt. As contrasted with other litigation, the following unique features are involved in bankruptcy proceedings where the doctrine of equitable subordination is invoked. First, equitable subordination is involved in a liquidation or reorganization proceeding where all of the debtor's assets, less exemptions, if any, are available for distribution or allocation to all of the debtor's creditors with allowable claims upon proper notice. Second, the proper party to seek equitable subordination is the trustee, as the representative of the creditors, not the debtor who has no standing in that regard. 420 In re Weeks, 28 B.R. 958 (Bankr.W.D.Okla. 1983); In re Lockwood, 14 B.R. 374 (Bankr. E.D.N.Y. 1981). Third, where the doctrine of equitable subordination is applied, the claimant's misconduct was directed against or inflicted upon the debtor, not a creditor. See, e.g., Comstock v. Group of Institutional Investors, 335 U.S. 211, 68 S.Ct. 1454, 92 L.Ed. 1911 (1948); Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939). The above features are not present in the instant case. Here, we deal with a mortgage foreclosure case involving only the Banyan Property of the Hos. Neither are all of the Hos' assets involved in the litigation nor are all of the Hos' creditors in court. The purported inequitable acts or omissions of PSLIC were directed at or inflicted upon Pac Loan, another creditor, and not the Hos, the debtors. There is no trustee or receiver seeking equitable subordination of PSLIC's lien. Neither Pac Loan nor PSLIC has located any reported non-bankruptcy case in which the doctrine of equitable subordination was applied. Our research disclosed a case in which a holder of maritime liens sought to equitably subordinate the lien of a vessel's mortgagee.[9]West of England Ship Owners Mutual Protection & Indemnity Ass'n v. Patriarch Steamship Co., 491 F. Supp. 539 (D.Mass. 1980). Based on the facts in the case, however, the court found no basis for equitable subordination. Since the maritime lienholder alleged false or misleading representation made by the mortgagee to the lienholder's detriment, we believe that the pertinent doctrine was equitable estoppel,[10] rather than equitable subordination. Thus, we are dubious of the applicability of the equitable subordination doctrine in this mortgage foreclosure case. However, inasmuch as West of England suggests that equitable subordination is applicable in a non-bankruptcy context, we will discuss the trial court's application of the doctrine in this case. C. The Doctrine and the Mobile Test The Court of Appeals for the Fifth Circuit has formulated the following three-pronged test which must be satisfied before the bankruptcy court may exercise its power of equitable subordination:[11] (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Act. In re Mobile Steel Co., 563 F.2d 692, 700 (5th Cir.1977) (citations omitted). 1. The First Prong The types of inequitable conduct which would satisfy the first prong of the Mobile test have been classified into three categories by a legal writer: first, "fraud, illegality, breach of fiduciary relationship or other blatant wrongdoing"; second, "undercapitalization"; and third, that "a claimant has controlled the debtor as to make it a mere instrumentality of the claimant, to the debtor's detriment." Cohn, supra, at 300-01. The types of inequitable conduct under the first category include (1) the dominant stockholder's misuse of a judgment claim against the debtor to the detriment of other creditors condemned in the landmark case of Pepper v. Litton, supra; (2) the 421 creditor's participation in a conspiracy to restrain and monopolize interstate trade and commerce in natural gas and the acquisition of the claims against debtors under reorganization "pursuant to and in accomplishment of the aims and purposes of that conspiracy" involved in Columbia Gas & Electric Corp. v. United States, 151 F.2d 461, 466 (6th Cir.1945), modification denied, 153 F.2d 101 (1946); and (3) breaches of fiduciary relationship found in the activities by officers, directors, and controlling stockholders asserting claims against debtor-corporations as in Pepper v. Litton, supra (controlling stockholder); Boyum v. Johnson, 127 F.2d 491 (8th Cir.1942) (controlling stockholder and managing officer); and In re Dean and Jean Fashions, Inc., 329 F. Supp. 663 (W.D.Okla. 1971) (sole stockholders and directors). A typical example of the second category of misconduct as grounds for equitable subordination is Costello v. Fazio, 256 F.2d 903 (9th Cir.1958). In Costello, in incorporating a partnership, two partners who were to become officers, directors, and controlling stockholders converted the bulk of their capital contributions in the partnership into loans by taking promissory notes, and left the partnership and succeeding corporation grossly undercapitalized, to the detriment of the corporation and its creditors. The former partners' claims based on the promissory notes against the bankrupt corporation were equitably subordinated. In undercapitalization cases, the test is whether the claim, in economic and legal reality, is an indebtedness or a proprietary interest. If it is the latter and there is detriment to other creditors, equitable subordination will be imposed. See Herzog & Zweibel, The Equitable Subordination of Claims in Bankruptcy, 15 Vand.L.Rev. 83, 93-98 (1961). See also In re N.A.B. Food Services, Inc., 32 B.R. 128 (Bankr.S.D.Ohio 1983). The third category of inequitable conduct generally occurs in cases where the debt is owed by a bankrupt corporation to its parent or affiliated corporation, or to its controlling stockholder or stockholders. See Herzog & Zweibel, supra, at 102-12. Here, the court applies equitable principles to disregard the separate corporate entity of the debtor-corporation and treat it as a mere instrumentality or alter ego of the creditor who is its parent or affiliated corporation or its controlling stockholder or stockholders. Thus, in Taylor v. Standard Gas & Electric Co., supra, 306 U.S. at 322, 59 S.Ct. at 550, 83 L.Ed. at 676, the Supreme Court stated that the "instrumentality rule" is "the application in particular circumstances of the broader equitable principle that the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when so to do would work fraud or injustice." In its analysis of Taylor, the Supreme Court stated in Pepper v. Litton, supra, 308 U.S. at 308, 60 S.Ct. at 246, 84 L.Ed. at 290, that there was a "history of spoliation, mismanagement, and faithless stewardship of the affairs of the subsidiary by Standard to the detriment of the public investors." Despite the domination of the subsidiary corporation by the parent, however, equitable subordination is inapplicable if the facts reveal "good faith, fair dealing and freedom from fraud or overreaching" by the parent. Comstock v. Group of Institutional Investors, supra, 335 U.S. at 230, 68 S.Ct. at 1464, 92 L.Ed. at 1923. 2. The Second Prong The second prong of the Mobile test requires that the inequitable conduct must have caused injury to the bankrupt's creditors or resulted in an unfair advantage to the claimant. See In re Multiponics, Inc., 622 F.2d 709 (5th Cir.1980). If no creditor is injured by the purported misconduct of the claimant, equitable subordination will not be ordered. See In re Monex Corp., 32 B.R. 82 (Bankr.S.D.Fla. 1983). 3. The Third Prong The third prong of the test is self-explanatory. For example, a bankruptcy court may not equitably subordinate administrative rents which have a statutory first priority under the bankruptcy code. In re 422 Dade County Dairies, Inc., 474 F. Supp. 438 (S.D.Fla. 1979). 4. Adequate Evidentiary Basis Requirement The Mobile court stated that "an objection resting on equitable grounds cannot be merely formal, but rather must contain some substantial factual basis to support its allegations of impropriety." 563 F.2d at 701. In a bankruptcy case, the trustee must establish an adequate evidentiary basis for equitable subordination and there must be sufficient findings of fact corresponding to each of the Mobile's three-pronged test components. In re Missionary Baptist Foundation of America, Inc., 712 F.2d 206 (5th Cir.1983). D. The Inequitable Conduct The trial court concluded that the conduct of Parent Company, Fickle, Gamble, and Matsukage was inequitable and, consequently, applied the doctrine to equitably subordinate PSLIC Mortgage lien. We will thus closely study the court's findings to determine what constituted the "inequitable conduct." We note initially that the document filed as the December 30, 1982 Findings and Conclusions is the actual proposed findings and conclusions submitted by Pac Loan's attorney, as edited by the trial court. The trial court made handwritten substitutions, additions, and deletions on the proposed findings and conclusions and initialed each of the substitutions, additions, and deletions. We further note that Pac Loan did not appeal any of the substitutions, additions, and deletions made by the trial court. 1. Interlocking Directors The trial court found "interlocking directors" among Parent Company and its subsidiaries, which is not unusual. The court further found that after the acquisition of Pac Loan by the Matsukages on September 29, 1975, both Pac Loan and Matsukage were "substantially influenced by Parent Company" through Gamble and Fickle. See findings nos. 44 and 45. However, "mere control or domination of a corporation is not proscribed by law and is in itself insufficient to justify piercing the corporate veil and subordinating claims." In re Mid-Town Produce Terminal, Inc., 599 F.2d 389, 393 (10th Cir.1979) (quoting Herzog & Zweibel, supra, at 112). See also In re Featherworks Corp., 25 B.R. 634 (Bankr.E.D.N.Y. 1982). 2. Kailua Village Findings nos. 27 through 38 deal with the 64-unit Kailua Village condominium apartment complex constructed by Aloha Development in 1972-73 for which PSLIC had made the construction loan. In May 1973, Aloha Development ceased marketing the units because of the Securities and Exchange Commission's inquiries concerning Aloha Development's marketing practices. In December 1973, PSLIC made a $2,250,000 mortgage loan to the Hos for their purchase of Kailua Village from Aloha Development who used the $2,250,000 to repay to PSLIC the construction loan. REFC borrowed $1,092,450 from PSLIC and purchased 34 of the 64 units from the Hos. The Hos retained some of the remaining 30 units and disposed of some to their friends and relatives. On December 14, 1973, Pac Loan made a $104,450 loan to the Hos (Loan 364) which was secured by a second mortgage on six of the Kailua Village units. Later in 1976, Pac Loan purchased the six units by way of assumption of the PSLIC's first mortgage. However, "Pac Loan generated profit from the ultimate sale of these units." Finding no. 35. Pac Loan sought to prove by the various Kailua Village transactions that Parent Company, through Gamble and Fickle and the use of James Ho, manipulated REFC and Pac Loan for the benefit of PSLIC and Aloha Development. However, the trial court deleted proposed findings nos. 34, 37, and 38 and thereby refused to find that (1) the granting of Loan 364 to the Hos was "part of an unlawful and fraudulent plan, conspiracy and scheme among Gamble, Fickle, Matsukage, PSLIC, and Parent Company" (proposed finding 423 no. 34), (2) "the sham sale of Kailua Village Units to James G.Y. Ho was part of an unlawful and fraudulent plan, conspiracy and scheme which resulted in detriment to Pac Loan" (proposed finding no. 37), and (3) "Gamble exercised control over Pac Loan during all relevant times herein" (proposed finding no. 38). The trial court's refusal to make those findings requested by Pac Loan is regarded on appeal as findings that Pac Loan failed to meet its burden of proof on those issues. See Hammond v. Reeves, 89 N.M. 389, 552 P.2d 1237 (1976); Worthey v. Sedillo Title Guaranty, Inc., 85 N.M. 339, 512 P.2d 667 (1973); Gallegos v. War, 78 N.M. 796, 438 P.2d 636 (1968). The Kailua Village transactions predated and had no connection with Pac Loan's Loans 550 and 598 to the Hos. Moreover, the trial court refused to find any "fraudulent plan, conspiracy and scheme" regarding Kailua Village. Under the circumstances, there is no "inequitable conduct" imposable or imputable on PSLIC based on the Kailua Village transaction. 3. Loans 550 and 598 When Pac Loan made Loans 550 and 598 to the Hos, it was no longer a subsidiary of Parent Company. As Parent Company nominees, Gamble and Fickle sat on Pac Loan's board with Matsukage and another director. Gamble and Fickle did not control the board.[12] Pac Loan sought to show that Loans 550 and 598 were bad loans which should never have been made, that no effort had been exerted to collect the delinquent loans due from the Hos, and that Gamble and Fickle, as directors, were chargeable with misfeasance or nonfeasance which were imputable to Parent Company, and, in turn, attributable to PSLIC. The trial court did find that the Hos had delinquent loans totaling $148,111 with Pac Loan when Loan 550 was made and delinquent loans totaling $197,850 when Loan 598 was made. The court, however, found that the loan committee which approved Loan 550 did not include Gamble and Fickle.[13] Moreover, the record indicates that neither Loan 550 nor Loan 598 was submitted to the board of directors for approval. What is significant is not so much what the trial court found, but what it refused to find. It refused to make findings of fact nos. 53, 54, 55, 57, 59, 62, 63, 64, 65, and 66 proposed by Pac Loan which state in relevant part: 53. Fickle and Gamble knew about HOs' delinquencies at Pac Loan at the time loan [550] was made. 54. James G.Y. Ho did not intend to pay Pac Loan for Loan [550] ... because [the loan was] part of the consideration for the HOs participation in ... as James G.Y. Ho called the Kailua Village transfers... "paper transactions." 55. Loan [550 was] not made upon consideration which a reasonable person engaged in the industrial loan industry would make[.] 57. Under the circumstances, loan [598] was not one which a reasonable prudent lender in the industrial loan industry would have made. 59. [Loans 550 and 598] to HOs, were made through the exercises of the control position of Parent Company, through the actions of its agents, Fickle and Gamble, and through the exercise of the control over Matsukage. 62. While Parent Company and Matsukage were shareholders of Pac Loan, Parent Company, its agents Fickle and Gamble, and its controlled entity Matsukage owed a fiduciary duty to Pac Loan to restrict Pac Loan from making loans that 424 did not have a reasonable likelihood of being repaid. Parent Company, Gamble, Fickle and Matsukage, acting to benefit PSLIC directly and to benefit themselves indirectly, breeched [sic] this fiduciary duty at least with respect to making of [Loans 550 and 598] under the circumstances stated above. 63. While Parent Company and Matsukage were shareholders of Pac Loan, Parent Company, its agents Fickle and Gamble and its controlled entity, Matsukage, owed a fiduciary duty to Pac Loan to take reasonable measures to cause amounts owed to Pac Loan on loans made by Pac Loan to be collected when these loans became due and payable. Parent Company, Gamble, Fickle and Matsukage, acting to benefit PSLIC directly and to benefit themselves indirectly, breeched [sic] this fiduciary duty at least with respect to [Loan 550 and 598] by failing to take reasonable measures to cause amounts owed to Pac Loan to be collected at the time the debts became due and payable. 64. While Parent Company and Matsukage were shareholders of Pac Loan, Parent Company, its agents Fickle and Gamble and its controlled entity, Matsukage, owed a fiduciary duty to Pac Loan to take reasonable measures to cause diligent collection efforts to be made to recover amounts owed to Pac Loan on loans which had matured and were overdue or which had delinquent installment payments. Parent Company, its agents Fickle and Gamble and its controlled entity, Matsukage, acting to benefit PSLIC directly and to benefit themselves indirectly, breeched this fiduciary duty to Pac Loan by failing to take reasonable measures to cause diligent collection efforts to be made to recover amounts owed to Pac Loan on loans which had matured and were overdue or which had delinquent installment payments overdue. 65. Gamble, Fickle and Matsukage as Directors of Pac Loan owed a fiduciary [duty] to Pac Loan to disclose material information to Pac Loan to include their interests in and obligations to PSLIC and Parent Company and the information they knew or should have known about the credit worthiness of James G.Y. Ho. Gamble, Fickle and Matsukage, acting to benefit PSLIC directly and to benefit themselves indirectly, failed to make these disclosures. As a direct and proximate result of the lack of these disclosures [Loans 550 and 598] were made. Had a reasonable prudent lender in the industrial loan industry had access to this information which Gamble, Fickle and Matsukage failed to disclose, [Loans 550 and 598] would not have been made by the said reasonable prudent lender. 66. These breaches of fiduciary duty have resulted in detriment to Pac Loan in that these breaches resulted in Pac Loan holding worthless notes and mortgage [sic] in [Loan 550 and 598]. As indicated above, we regard the trial court's refusal to make those findings requested by Pac Loan to be findings that Pac Loan failed to meet its burden of proving those factual issues. Our foregoing analysis of the trial court's findings and of its refusal to make certain requested findings inexorably leads us to a determination that based on its findings of fact, the trial court erred in concluding that the conduct of Parent Company, Gamble, Fickle, and Matsukage, imputable to PSLIC, was "inequitable." Consequently, we hold that conclusions of law nos. 10, 11 and 12 are erroneous and the trial court should not have equitably subordinated PSLIC's Mortgage lien.[14] 425 III. PAC LOAN'S CROSS-APPEAL Pac Loan contends that the trial court erred in amending the May 4, 1982 Judgment by reducing the total judgment against the Hos of $227,628.48 to $128,247.33 by entry of its December 22, 1982 Amended Judgment.[15] For the reasons stated below, we vacate the December 22, 1982 Amended Judgment and reinstate the May 4, 1982 Judgment. The $227,628.48 May 4, 1982 Judgment in favor of Pac Loan was against the Hos and not PSLIC. The Hos themselves never sought to have the May 4, 1982 Judgment amended or modified. It was PSLIC who sought relief from the May 4, 1982 Judgment. The judgment debtor is ordinarily the person entitled to the opening, modification, or vacation of a judgment. 46 Am.Jur.2d Judgments § 691 (1969). The general rule is that a third person has no standing to modify or vacate a judgment unless it purports to bind him under the doctrine of res judicata or he has an interest affected by the judgment. Id. at § 694; Restatement (Second) of Judgments § 64 (1982). In moving for relief, PSLIC was aware that the amount of Pac Loan's judgment against the Hos would affect PSLIC's interest only if the court ordered the equitable subordination of PSLIC Mortgage lien to Pac Loan's mortgage liens. If the court's priorities ruling favored PSLIC, the issue regarding the judgment amount would be moot insofar as PSLIC was concerned. At the hearing on PSLIC's motion, the court stated that "the amount [of the judgment] obviously would affect [PSLIC] if [PSLIC] comes in second on the equitable subordination priority claim [of Pac Loan]."[16] Transcript of May 21, 1982 Proceedings at 58. Based on the foregoing circumstances, the trial court entered its December 22, 1982 Amended Judgment only because it had determined to equitably subordinate PSLIC Mortgage lien. If it had determined to uphold the priority of PSLIC Mortgage lien, the court undoubtedly would have denied PSLIC's motion for relief and left the May 4, 1982 Judgment intact. Since we are reversing the trial court on the PSLIC Mortgage lien subordination issue, we are constrained to strike the December 22, 1982 Amended Judgment and leave the May 4, 1982 Judgment unmodified. In its cross-appeal, Pac Loan also contends that the trial court erred (1) in denying its "Motion to Amend Pleadings to Conform to the Evidence"[17] and (2) in failing to enforce a stipulation regarding the payment by PSLIC of Pac Loan's lien amounts upon the entry of a judgment subordinating PSLIC Mortgage lien. The first contention is without merit and the second contention is rendered moot by our ruling on PSLIC's appeal. IV. CONCLUSIONS Accordingly, we reverse the trial court's decisions which equitably subordinate PSLIC's Mortgage lien and which modify the May 4, 1982 Judgment in favor of Pac Loan and against the Hos and direct the trial court to: *426 1. Vacate the "Final Judgment in Favor of Pacific Loan, Inc." filed on June 2, 1983; 2. Vacate the "Amended Judgment" in favor of Pac Loan and against the Hos filed on December 22, 1982, and reinstate the "Judgment" in favor of Pac Loan and against the Hos filed on May 4, 1982; and 3. Enter an appropriate judgment according PSLIC Mortgage lien priority over Pac Loan's mortgage liens. Remanded for further proceedings consistent with this opinion. NOTES [1] Matsukage was one of the other two directors. [2] The Matsukages paid off the promissory note payable to Parent Company sometime in 1978. [3] The Industrial Loan Company Guaranty Act, Hawaii Revised Statutes (HRS) chapter 408A (Supp. 1983), was enacted in 1977 for the purpose of guaranteeing the payment of up to $10,000 for each thrift account with an industrial loan company. HRS § 408A-4 required all industrial loan companies which had issued and outstanding thrift accounts to establish a non-profit corporation named the Thrift Guaranty Corporation of Hawaii which would establish and maintain a guaranty fund by levying assessments on its members. HRS § 408A-7 authorizes the bank examiner to apply for the appointment of Thrift Guaranty as a receiver for industrial loan company with thrift accounts. [4] On October 30, 1978, PSLIC assigned the December 27, 1974 note and mortgage to Norfolk Investment, Inc., a Hawaii corporation. However, the assignment was cancelled on December 31, 1980. [5] PSLIC does not claim that the additional charge mortgage has priority over Pac Loan's mortgages (Loans 550 and 598). [6] By Order Directing Entry of Final Judgment filed on May 17, 1983, the circuit court made a Rule 54(b), Hawaii Rules of Civil Procedure (1981), determination that there was no just reason for delay and directed entry of a final judgment. [7] Our reversal of the trial court on the issue of equitable subordination renders moot the issues on appeal regarding the attorney's fees and costs awarded to Pac Loan. [8] 11 U.S.C. § 510(c) (1982) reads as follows: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest; or (2) order that any lien securing such a subordinated claim be transferred to the estate. [9] We are aware of receivership cases wherein preferences may be accorded certain claims. See Unna v. Brown, 6 Haw. 676, aff'd, 7 Haw. 190 (1887). See also Lewis & Dalin v. E.H. Clarke Lumber Co., 185 Or. 522, 204 P.2d 130 (1949). [10] See note 14, infra. [11] It may be noted that the trustee has authority to avoid or disallow fraudulent transfers or obligations under sections 544(b)(11) U.S.C. § 544(b) and 548(a) (11 U.S.C. § 548(a)) of the Bankruptcy Code. See Levin, An Introduction to the Trustee's Avoiding Powers, 53 Am.Bankr. L.J. 173 (1979). [12] Pac Loan made Loan 550 to the Hos on October 1, 1975, just two days after the Matsukages acquired ownership of Pac Loan on September 29, 1975. However, Matsukage had been the president of Pac Loan since 1971 and James Ho testified that "[t]he only person [he] discussed [the loans] with was Mr. Matsukage." Transcript, Vol. II at 472. [13] Matsukage was a member of the loan committee. Although the trial court made no finding, the record discloses that the loan committee which approved Loan 598 did not include Gamble and Fickle. [14] The doctrine of equitable estoppel is applicable to subordinate a mortgage lien where a subsequent lienor detrimentally relied on the representation or conduct of the mortgagee sought to be estopped and such reliance was reasonable under the circumstances. See Strouss v. Simmons, 66 Haw. 32, 657 P.2d 1004 (1982); Apex Siding & Roofing Co. v. First Federal Savings & Loan Ass'n, 301 P.2d 352 (Okla. 1956). Since there is no finding of detrimental reliance by Pac Loan nor any finding of misrepresentation or misleading conduct by PSLIC or its agents, Pac Loan cannot prevail on grounds of equitable estoppel either. [15] The December 22, 1982 Amended Judgment reduced the original judgment amount of $227,628.48 by (1) recognizing and applying a credit of $38,423.98 on Loan 550 as of April 1, 1978, (2) accruing interest on Loan 550 only from and after April 1, 1978, and (3) applying interest at a rate of 12% per annum after the maturity dates of Loans 550 and 598 instead of 15% and 18%, respectively. [16] At the hearing, PSLIC's attorney stated, "If you do not rule against us, I don't care about [amending the May 4, 1982 Judgment]," and "[I]f you rule for us, this is an academic exercise." Transcript of May 21, 1982 Proceedings at 53, 55. [17] This motion was filed on March 4, 1983, after the trial court entered its findings of fact and conclusions of law on the priorities issue on December 30, 1982.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1344420/	9 Kan. App. 2d 222 (1984) 675 P.2d 372 MONTY RICHMEIER, Plaintiff/Appellee, v. THOMAS W. WILLIAMS, Third-Party Plaintiff/Appellant, v. USAA CASUALTY INS. CO., Thirty-Party Defendant/Appellee. No. 55,463 Court of Appeals of Kansas. Opinion filed January 26, 1984. Allen Shelton, of Clark & Shelton, P.A., of Hill City, for the third-party plaintiff/appellant. Selby S. Soward, of Soward, Foust & Vignery, of Goodland, for third-party defendant/appellee. Before FOTH, C.J.; TERRY L. BULLOCK, District Judge, assigned; and FREDERICK WOLESLAGEL, District Judge, Retired, assigned. FOTH, C.J.: This is an appeal from an order of summary judgment in favor of an insurance company that failed to defend under an automobile liability policy. On October 28, 1978, Thomas Williams acquired automobile liability coverage under an assigned risk policy written by USAA Casualty Insurance Company. The policy was for a one-year term from October 28, 1978, to October 28, 1979. Williams failed to make the quarterly premium payment due on January 28, 1979. On April 7, 1979, Williams had an automobile accident in which his passenger, Monty Richmeier, was injured. Richmeier sued Williams; USAA Casualty refused to defend contending that the policy had lapsed. Williams filed a third party petition against USAA Casualty praying for reimbursement of any judgment 223 against him up to policy limits plus legal fees and expenses. USAA Casualty moved for summary judgment on the ground that the policy had been cancelled at the time of the accident. The insurance company presented an affidavit showing that it mailed a notice of cancellation to Williams on February 6, 1979, stating that the policy would be cancelled on March 12, for nonpayment of premium. Williams filed an affidavit stating that he never received a notice of cancellation. The trial court granted summary judgment in favor of USAA Casualty. Williams filed a motion for rehearing on the motion for summary judgment which the court denied on February 26, 1983. The matter went to trial on the issue of liability and damages, and judgment was entered against Williams in the amount of $35,000. Williams appeals the order granting summary judgment to USAA Casualty and the order denying his motion for rehearing. In granting summary judgment, the trial court found that the dispute over whether the company had in fact given notice of cancellation to Williams did not constitute an issue of material fact because K.S.A. 40-3118(b) does not require notice of cancellation for nonpayment of premiums. While the trial court's reading of K.S.A. 40-3118 is correct, we find that notice to the insured was required by the language of the policy. The statute regarding notice of cancellation exempts cancellation for nonpayment of premium from its 30-day notice of cancellation requirement. K.S.A. 40-3118(b). The statute does not specify any other notice period for such cancellation, so no notice to the insured is required by statute. This, however, does not relieve USAA Casualty of its contractual obligations under the policy. Insurance is a matter of contract, and the courts will uphold whatever terms the parties choose to employ that are not in conflict with pertinent statutes or public policy. Gibson v. Metropolitan Life Ins. Co., 213 Kan. 764, 770, 518 P.2d 422 (1974). An insurer may grant rights to its insured in excess of those provided by statute, and if it does, it is bound by its policy. Howard v. Farmers Ins. Co., 5 Kan. App.2d 499, Syl. ¶ 2, 619 P.2d 160 (1980). This is precisely what USAA Casualty has done. The "easy reading auto policy" issued to Williams stated that the policy might be cancelled during the policy period "by 224 mailing to the named insured ... at least 10 days notice ... if cancellation is for nonpayment of premium." It went on to provide that "[p]roof of mailing of any notice shall be sufficient proof of notice." Hence, under the policy, notice was required for cancellation. The question then is whether proof of mailing is conclusive proof of notice. In Koehn v. Central National Ins. Co., 187 Kan. 192, 354 P.2d 352 (1960), the Court construed substantially the same language to mean that notice must actually be received by the insured before the policy may validly be cancelled. 187 Kan. at Syl. ¶ 1; 199-202. In so holding, the Court noted that the majority of jurisdictions require only proof of mailing (187 Kan. at 196-97), but our Court specifically adopted a minority rule based on a distinction in policy language between "sufficient" and "conclusive" proof (187 Kan. at 200). In further support of its reasoning, the Court stated that to hold otherwise would contravene the public policy of this state. 187 Kan. at 202-203. The passage of K.S.A. 40-3118(b) subsequent to the decision in Koehn simply removed the public policy reason for the holding; it left intact the Court's interpretation of the meaning of the policy language. Consequently, by presenting proof of mailing, USAA Casualty set up a rebuttable presumption of receipt by Williams. Williams' affidavit, if believed, rebutted the presumption by stating that he never received notice. This raises a genuine issue of material fact which renders the summary judgment improper. The fact that Williams' policy was an assigned risk policy does not dilute the force of Koehn. The basis of the Koehn decision was the meaning of the language of the policy. The intent of the insurer or the circumstances surrounding the issuance of the policy were not taken into account. Nothing in the Koehn opinion suggests that the policy language in question has a different meaning when contained in an assigned risk policy. USAA Casualty promised in its policy to give actual notice of cancellation to Williams, and under Koehn that meant receipt of the notice by Williams. Whether the notice was given and received is a material question of fact. The question is unresolved; therefore summary judgment was not proper. Reversed and remanded for further proceedings.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1344427/	472 S.E.2d 259 (1996) Willie Lee LANGLEY, Respondent, v. Richard GRAHAM, Appellant. No. 2518. Court of Appeals of South Carolina. Heard April 3, 1996. Decided June 10, 1996. C. Craig Young, of Willcox, McLeod, Buyck & Williams, Florence, for appellant. J.M. Long, III, Conway, for respondent. CURETON, Judge: This is an appeal from the denial of a motion to vacate a default judgment entered against appellant Richard Graham (Graham). We reverse and remand. Respondent, Willie Lee Langley (Langley), was standing beside a truck driven by Graham when Graham negligently struck him causing serious personal injuries. The accident occurred on May 13, 1989. Langley filed suit against Graham on March 12, 1992. On March 16, 1992, Langley attempted to serve the suit papers by certified mail, return receipt requested. Mildred Graham, Graham's sister who resided with him, signed the return receipt. Graham failed to file responsive pleadings, but the action was 260 stricken from the docket pursuant to Rule 40(c)(3), SCRCP. The action was restored to the active roster on December 12, 1992. On May 8, 1993, Langley again attempted to serve Graham by certified mail, return receipt requested. Mildred Graham again signed the return receipt. On both occasions, Langley mailed the suit papers certified mail, but delivery was not restricted to addressee only as required by Rule 4(d)(8), SCRCP. Graham failed to respond to the complaint and a default judgment in the amount of $33,963.43 was entered against him on October 1, 1993. On May 27, 1994, Graham moved to have the default judgment vacated based on the court's lack of jurisdiction over his person. The trial judge denied the motion finding Graham failed to demonstrate the return receipt was signed by an unauthorized person pursuant to Rule 4(d)(8). Moreover, he found Graham's acknowledgment of actual receipt of the summons and complaint satisfied the requirements of Rule 4(j), SCRCP. Graham contends the default judgment should be set aside because he did not sign the return receipt for the summons and complaint and, further, Langley failed to send the suit papers by "restricted delivery" mail. Rule 4(d)(8) provides: Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule may be made by the plaintiff or by any person authorized to serve process pursuant to Rule 4(c), including a sheriff or his deputy, by registered or certified mail, return receipt requested and delivery restricted to the addressee. Service is effective upon the date of delivery as shown on the return receipt. Service pursuant to this paragraph shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing the acceptance by the defendant. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by an unauthorized person. If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules. (Emphasis added). The trial judge held that because Graham failed to demonstrate his sister was not a person authorized to accept service on his behalf, he would not set aside the default judgment. We do not think that the trial court's interpretation of Rule 4(d)(8) was intended by the makers of the rule. In Roche v. Young Bros., Inc., ___ S.C. ___, ___, 456 S.E.2d 897, 900 (1995), our Supreme Court held that a plaintiff satisfied the requirements of Rule 4(d)(8) when he demonstrated the "return receipt [was] restricted to the addressee and [accepted][1] by the defendant." Here, however, it is obvious from a cursory review of the return receipt that neither requirement has been met. Graham did not sign the return receipt,[2] and its delivery was not restricted to 261 "addressee" only. See 62B Am.Jur.2d Process, §§ 227-228 (1990) and 72 C.J.S. Process, § 55 (1987) (acceptance of service by someone other than addressee is defective where the mail is sent restricted delivery). Thus, we think Graham has met his burden under Rule 4(d)(8) of showing either an unauthorized person[3] signed the receipt or service by mail was defective in that delivery was not "restricted to the addressee."[4] In so holding, we note that the new federal rules have abolished service by mail, except to the extent permitted by applicable state practice. Under the federal rules, a defendant may waive service of process by signing an acknowledgement after being furnished a copy of the pleadings by mail. If the defendant refuses to sign the acknowledgement and it is returned to the plaintiff, the plaintiff must then effect service by other means. Fed.R.Civ.P. 4(d). The trial judge also ruled that service was properly obtained pursuant to Rule 4(j), SCRCP which provides: No other proof of service shall be required when acceptance of service is acknowledged in writing and signed by the person served or his attorney, and delivered to the person making service. The acknowledgement shall state the place and date service is accepted. At the hearing to vacate the default judgment, Langley presented an affidavit signed by Graham in which Graham acknowledged receipt of the summons and complaint delivered to his sister on March 16, 1992, and again on May 9, 1993. The trial judge found the affidavit submitted constituted sufficient evidence of delivery and compliance with Rule 4(j), and met the requirements of due process. We disagree. Rule 4(j) relates back to Rule 4(g) which sets forth the requirements for proof of service. Rule 4(j) provides that notwithstanding the provisions of Rule 4(g), if the defendant acknowledges service in writing, no other proof is required. Rule 4(j) establishes no new procedure for service of process; rather, it is but a recognition of the long standing practice that acknowledgement or acceptance of service is equivalent to personal service. Williams v. Ray, 232 S.C. 373, 102 S.E.2d 368 (1958); Priester v. Priester, 131 S.C. 284, 127 S.E. 18 (1925); Donlevy & Co. v. Cooper & Co., 11 S.C.L. (2 Nott & McC.) 548 (1820). Service by written acceptance is not converted into "service by mail" by the mere fact that the paper served was transmitted by mail. Priester, 131 S.C. at 287, 127 S.E. at 19. Finally, our Supreme Court has held that an acknowledgement of service, made by a defendant after judgment has been rendered against him, is not equivalent to personal service upon him. State v. Cohen, 13 S.C. 198 (1880). Therefore, the acceptance of service contemplated in Rule 4(j) must have been in existence at the time the default judgment was entered in order to constitute the equivalent of service under Rule 4(j). In the absence of proper proof of service under Rule 4(g) or an acceptance of service under Rule 4(j), the trial court was without personal jurisdiction to enter judgment against Graham. See Roche v. Young Bros., Inc., ___ S.C. ___, 456 S.E.2d 897 (1995); Patel v. Southern Brokers, Ltd., 277 S.C. 490, 289 S.E.2d 642 (1982); Webb v. Oberkampf Supply of Lubbock, Inc., 831 S.W.2d 61 (Tex.App. 1992). Graham also contends the default judgment should be vacated because the statute of limitations barred the suit and because 262 enforcement of the judgment would be unfair, unjust and unconscionable. These defenses were neither pled nor ruled upon by the trial court and are therefore not preserved for review. Connolly v. People's Life Ins. Co., 299 S.C. 348, 384 S.E.2d 738 (1989). We may not address an issue not preserved for review. Hendrix v. Eastern Dist., Inc., ___ S.C. ___, 464 S.E.2d 112 (1995). Finally, Graham argues the trial court erred in accepting the acknowledgement of service under Rule 4(j) because it was procured by Langley's attorney through unethical means. While we are concerned about this assertion,[5] we may not address it because the trial court made no ruling on the matter. Again, this issue is not preserved for our review. Connolly, 299 S.C. 348, 384 S.E.2d 738. Accordingly, the order of the trial judge is reversed and the case remanded to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED. GOOLSBY and ANDERSON, JJ., concur. 613 FACTS This case arises out of respondent, Haynsworth, Marion, McKay & Geurard's (Haynsworth) representation of appellants, Smith and Murray, in a real estate development scheme. Smith and Murray contracted with a developer, Bill Bashor, to purchase lots on Wild Dunes. Bashor planned to develop the lots, then sell them for a profit. Two of the investors in the scheme were partners in the Haynsworth firm. Haynsworth represented Bashor in his acquisition and sale of the lots, as well as in various other legal matters. Haynsworth also represented Smith and Murray in the transaction, with Bashor paying their attorney's fees. The development scheme fell through and the lots were ultimately foreclosed by the bank. Smith and Murray sued Haynsworth for malpractice. The jury returned a verdict for respondents. ISSUES 1. Did the trial court err in excluding the testimony of appellants' expert witness? 2. Was the trial court's charge concerning powers of attorney improper? I. EXPERT TESTIMONY Respondents moved to exclude the testimony of appellants' expert, Professor Gregory Adams, contending his testimony concerning the Rules of Professional Conduct (RPC), Rule 407, SCACR, was inadmissible, and claiming that Adams was not qualified to give an expert opinion as he was neither a real estate lawyer nor licensed to practice law in South Carolina. The trial court agreed and excluded Professor Adams' testimony. This was error.[1] A plaintiff in a legal malpractice action must generally establish the standard of care by expert testimony. See Mali v. Odom, 295 S.C. 78, 367 S.E.2d 166 (Ct.App. 1988).[2] The parameters of such testimony have, however, been the subject of much debate. The preamble to the RPC state that "[v]iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached." Rule 407, SCACR.[3] The RPC are silent, however, as to whether or not they are relevant in assessing the duty of care, or whether an expert may base his opinions in reliance thereon. Courts in other jurisdictions are divided. A majority of courts permit discussion of such a violation at trial as some evidence of the common law duty of care.[4]See Developments in The LawLawyers' Responsibilities and Lawyers' Responses, 107 Harv. L.Rev. 1547, 1567 (1994). See also Wolfram, The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C.L.Rev. 281, 286-287 (1979). These courts generally rule that the expert must address his or her testimony to the 614 breach of a legal duty of care and not simply to breach of disciplinary rule. See Ambrosio and McLaughlin, The Use of Expert Witnesses in Establishing Liability in Legal Malpractice Cases, 61 Temp.L.R. 1351, 1363 (1988). Other Courts have held that ethical standards conclusively establish the duty of care and that any violation is negligence per se. Greenough, The Inadmissibility of Professional Standards in Legal Malpractice After Hizey v. Carpenter, 68 Wash.L.Rev. 395, 398-401 (1993) (hereinafter Greenough). A minority find that violation of an ethical rule establishes a rebuttable presumption of legal malpractice. Id. And, finally, a few courts hold that ethical standards are inadmissible in a legal malpractice action. Id. See Hizey v. Carpenter, 119 Wash.2d 251, 830 P.2d 646, 654 (1992); Bross v. Denny, 791 S.W.2d 416, 420 (Mo.Ct.App.1990).[5] We concur with the majority of jurisdictions and hold that, in appropriate cases, the RPC may be relevant and admissible in assessing the legal duty of an attorney in a malpractice action. However, we adopt the view taken by the Supreme Court of Georgia in Allen v. Lefkoff, Duncan, Grimes & Dermer, 265 Ga. 374, 453 S.E.2d 719, 721-722 (1995), as follows: This is not to say, however, that all of the Bar Rules would necessarily be relevant in every legal malpractice action. In order to relate to the standard of care in a particular case, we hold that a Bar Rule must be intended to protect a person in the plaintiffs position or be addressed to the particular harm.[6] Finally, in its written order, the trial court ruled Adams unqualified in any event as he is not licensed to practice law in this state, and is not an expert in the area of real estate law. Appellants contend this ruling effectually establishes a "locality rule" requiring an expert to testify only to local standards governing malpractice. This Court has abandoned the "locality rule" in the context of medical malpractice and accountants. King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981) (medical malpractice); Folkens v. Hunt, 300 S.C. 251, 387 S.E.2d 265 (1990) (accountants). In the context of legal malpractice, most courts which originally adopted a strict locality rule have expanded the relevant geographical region to create a statewide standard of care. Developments, supra, 107 Harv.L.Rev. at 1566-67. See also Brewer, 45 S.C.L.Rev. at 757-8. The rationale for this development is that attorneys are generally regulated on a statewide basis, with state rules of procedure and different substantive laws. Id. See also Ambrosio and McLaughlin, 61 Temple L.Rev. at 1363-4. Accordingly, we adopt the majority view and rule that the standard to be applied in determining legal malpractice issues is statewide. Further, the fact that Adams is not licensed to practice law in this state does not disqualify him as an expert. See McMillan v. Durant, 312 S.C. 200, 439 S.E.2d 829 (1993) (practitioner's experience teaching in a particular specialty and his professional interaction with practitioners of that specialty are facts sufficient to support his qualification as an expert. Defects in qualification go to weight rather than admissibility). Likewise, the fact that Adams is not a real estate lawyer does not prohibit his testimony concerning those ethical obligations which are relevant to appellants' claims. 615 Accordingly, in light of our holding the matter must be reversed and remanded for a new trial. Although unnecessary to our decision, we address the following issue to prevent re-occurrence upon retrial. II. POWER OF ATTORNEY CHARGE Smith and Murray signed limited powers of attorney authorizing the Haynsworth firm to execute any documents necessary to the closing. In his charge to the jury, the trial court charged as follows, "[a] power of attorney limits an attorney's duties and responsibilities toward the plaintiff to only those duties named in the power of attorney." Appellants claim this charge effectively prohibited the jury from finding respondents liable for any conduct outside the powers of attorney. We agree. The language used may have misled the jury to believe that the only duties owed by Haynsworth arose under the powers of attorney. The trial court should have instructed that the duties set forth in the powers of attorney applied only to matters arising thereunder and did not limit Haynsworth's responsibilities in other regards. Finally, we find that respondents' additional sustaining grounds are without merit. The judgment below is reversed and remanded for a new trial. REVERSED AND REMANDED. FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur. NOTES [1] In Roche, the Court placed no significance, however, on the fact the letter was not addressed to the corporation as addressee, but rather to an individual who was an officer of the corporation. In fact, the outside envelope containing the summons was simply addressed to "Edward L. Young, Post Office Box 3806, Florence, South Carolina 29502." Roche v. Young Bros., 313 S.C. 356, 358, 437 S.E.2d 560, 561 (Ct.App. 1993). There was no indication in the record that J. Neal Young, Young Brother's, Inc.'s Vice-President, who actually signed the return receipt, had any knowledge he was signing for corporate mail as opposed to personal mail of his brother, Edward L. Young, when he signed for the certified mail. [2] Although the Court in Roche states Rule 4(d)(8) "does not require the specific addressee sign the return receipt," we think the Court intended to limit the force of the statement to service upon corporations. Service on a corporation may only be accomplished by service upon an authorized person; thus, a corporate defendant accepts service of process when a person authorized to accept service does so for the corporation. On the other hand, an individual ordinarily accepts service under the rule when he signs the return receipt. If the rule permitted acceptance by anyone who happens to pick up the mail, the requirement that delivery of the suit papers by certified mail be restricted to the addressee would have no meaning. Moreover, the last sentence of Rule 4(d)(8) provides that if a defendant refuses delivery of the suit papers, the plaintiff must accomplish service "as otherwise provided by these rules." This provision is further indication the rule requires actual acceptance by the defendant named on the certified mail receipt inasmuch as under prior case law, a defendant's refusal to accept a certified return receipt requested mailing did not affect the validity of the service under S.C.Code Ann. § 36-2-806 (1976), amended by § 36-2-806 (Supp. 1995), the Long Arm Statute. Patel v. Southern Brokers, Ltd., 277 S.C. 490, 289 S.E.2d 642 (1982). [3] An authorized person is "an agent of the addressee who has been specifically authorized in writing by the addressee to receive his mail." 62B Am.Jur.2d Process, § 227 (1990). This is in keeping with the requirements of the Postal Regulations. See United States Postal Service Domestic Mail Manual 49 § 916-3.3 (Sept. 1, 1995). [4] We view the requirement of showing that the certified mail was properly sent as mandated by the Rule 4(d)(8) to be Langley's burden, not Graham's. See Roche, ___ S.C. at ___, 456 S.E.2d at 900 (plaintiff must show compliance with the rule). [5] Graham indicates in his affidavit that he was not told what he was signing when he signed the acknowledgement of service. He further states Langley's counsel "took advantage of [him] in that he failed to fully explain the circumstances surrounding the document [he] was signing and the contents of the document [he] was signing." [1] Respondents contend appellants did not adequately proffer Adams' testimony. We disagree. Adams testified he had formed opinions concerning the Haynsworth firm's duties and the breaches thereof. We find the proffered testimony fairly shows what the rejected testimony would have been. State v. Roper, 274 S.C. 14, 260 S.E.2d 705 (1979). Further, given that the reason for the proffer was to establish that Adams was, in fact, qualified as an expert, we find it was sufficient. Cf. Lee v. Suess, ___ S.C. ___, 457 S.E.2d 344 (1995). [2] There are four elements to a cause of action for legal malpractice: 1) the existence of an attorney-client relationship; 2) breach of a duty by the attorney; 3) damage to the client; and 4) proximate causation of the client's damages by the breach. Brewer, Expert Testimony in Legal Malpractice Cases, 45 S.C.L.Rev. 727, 730 (1994) (hereinafter Brewer). [3] The RPC did not become effective until September 1, 1990. However, their applicability was not challenged at trial. In any event, the Code of Professional Responsibility in effect prior to adoption of the RPC likewise disclaimed the creation of standards of legal malpractice. [4] The theory behind this view is that, since the ethical rules set the minimum standard of competency to be displayed by all attorneys, a violation thereof may be considered as evidence of a breach of the standard of care. See Sommers v. McKinney, 287 N.J.Super. 1, 670 A.2d 99, 105 (1996). Other courts admit this evidence in an analogous manner of admitting statutes, ordinances, or practice codes in defining the duty of care. See Greenough, infra. [5] Even these courts, however, do not restrict an expert's right to base his opinions on the Rules. For example, Hizey held that an expert may rely on the disciplinary rules in forming an opinion as to an attorney's failure to conform to an ethical rule so long as the expert addresses the breach of a legal duty, and not simply the breach of an ethical rule. 830 P.2d at 654. Similarly, Bross did not preclude an expert's reliance on the Rules. 791 S.W.2d at 420-21. One court has rejected expert testimony where it was based solely on an attorney's violation of ethical rules. Lazy Seven Coal Sales, Inc. v. Stone and Hinds, 813 S.W.2d 400 (Tenn.1991). That court noted, however, that the Code may be relevant in determining the standard of care and may provide guidance in ascertaining lawyers' obligations. 813 S.W.2d at 405. [6] The failure to comply with the RPC should not, however, be considered as evidence of negligence per se. It is merely a circumstance that, along with other facts and circumstances, may be considered in determining whether the attorney acted with reasonable care in fulfilling his legal duties to a client.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343289/	233 S.E.2d 521 (1977) 292 N.C. 344 STATE of North Carolina v. David Lee DOLLAR. No. 22. Supreme Court of North Carolina. April 14, 1977. 524 Rufus L. Edmisten, Atty. Gen. by Patricia B. Hodulik, Associate Atty. Gen., and Elizabeth C. Bunting, Associate Atty., Raleigh, for the State. E. James Moore, North Wilkesboro, for defendant. LAKE, Justice. Prior to trial the defendant moved for a psychiatric examination to determine his mental competency to plead to the indictment and to stand trial thereon. For this purpose, he was committed to Dorothea Dix Hospital. During the term of that commitment, the court, being advised that the defendant's brother planned to break into the hospital and release the defendant, ordered that he be transferred to the hospital at Central Prison and that the psychiatric examination be continued there. This was done, the examination being conducted by the staff of the Dorothea Dix Hospital. The defendant's contention that this transfer to the prison hospital was error is without merit. When the capacity of one charged with a criminal offense to proceed is questioned, the court may direct the commitment of the defendant to a State mental health facility for observation or may appoint one or more impartial medical experts to conduct such examination and may make appropriate temporary orders for the confinement or security of the defendant pending the ruling of the court upon the question of his capacity to proceed. G.S. 15A-1002; State v. Washington, 283 N.C. 175, 185, 195 S.E.2d 534 (1973). The defendant next assigns as error the failure of the court to hold a hearing on the question of his ability to plead and stand trial. Following the above mentioned psychiatric examination, the hospital staff made a report to the court indicating that the defendant did have mental capacity to 525 plead to the indictment and to stand trial. Without conducting any further hearing for the determination of that question, the court proceeded with the trial. This was contrary to G.S. 15A-1002(b)(3) which specifically requires that when the capacity of the defendant to proceed is questioned, the court must hold a hearing to determine that question, which hearing must be held, upon reasonable notice to the defendant and the prosecutor, after the psychiatric examination if one is ordered by the court. However, we think it obvious that, under the circumstances of this case, the defendant has waived his right to such hearing. State v. Young, N.C., 231 S.E.2d 577 (decided January 31, 1977). The report of the psychiatric examination is admissible in evidence at such hearing. G.S. 15A-1002(b)(1 and 2). The statute further provides that other evidence may be introduced at the hearing by the State and by the defendant. The record in the present case shows that the report of the examining psychiatrist was to the effect that the defendant did have the requisite mental capacity to plead to the indictment and to stand trial. Nothing in the record indicates that before going to trial the defendant requested a hearing or otherwise indicated any adherence to his contention of lack of mental capacity. He offered no evidence on the question. See: State v. Washington, supra. See also: State v. Propst, 274 N.C. 62, 68, 161 S.E.2d 560 (1968), as to the law of this State upon this question prior to the enactment of the foregoing statute. The defendant next assigns as error the court's denial of his motion for change of venue on account of local pretrial publicity. It is well established that this is a matter in the sound discretion of the trial court. State v. Brower, 289 N.C. 644, 655, 224 S.E.2d 551 (1976); State v. Alford, 289 N.C. 372, 378, 222 S.E.2d 222 (1976); State v. Harrill, 289 N.C. 186, 190, 221 S.E.2d 325 (1976). Nothing in the present record indicates an abuse of discretion in this ruling. The record does not show the defendant's examination of prospective jurors nor does it show that he exhausted the peremptory challenges allowed him by law. Apparently, jurors were found who were not aware of, or were not affected by, the publicity of which the defendant complains and nothing in the record indicates that, prior to verdict, he was not content with the twelve jurors who found him guilty. We find no merit in the defendant's Assignments of Error 5, 6 and 7 relating to the denial of portions of his pretrial motions for discovery. The State is not presently required to disclose to the defendant in advance of trial the names of its prospective witnesses. State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975). However, a list of the State's witnesses was supplied to defendant's counsel prior to the commencement of the selection of the jury. G.S. 15A-903 specifies certain types of information which the defendant is entitled to obtain by discovery procedure. The statute does not support the defendant's contention that he was entitled to pretrial disclosure of how the State intended to prove Mr. Royal's ownership of the guns sold by the defendant and his companion. As to the defendant's request for information as to evidence obtained by the State as a result of the defendant's statement, it is sufficient to note that the record does not indicate any such evidence was so discovered. There is likewise no merit in the defendant's Assignments of Error 8, 9 and 10 with reference to the overruling of his pretrial motions to suppress statements made by the defendant to the investigating officers and evidence obtained by the officers as the result of such statements. As above noted, the record does not indicate any evidence introduced at the trial was so obtained. Furthermore, the statements themselves were properly obtained and were properly admitted in evidence. The rule that evidence, which is fruit of a poisoned tree, is not admissible has no application where, as here, the tree in question was not poisoned and it bore no fruit. The defendant's statement to the investigating officers, at the time of the second interrogation, related to a general 526 conversation had by the defendant with others present in a store, in which conversation the defendant remarked that he knew who killed Mr. and Mrs. Royal. That statement, apparently, was not made to police officers. Upon learning of it, the investigating officers would have been exceedingly remiss had they not interrogated the defendant about it. At such interrogation the defendant was not warned of his constitutional rights. However, he was not in custody nor was he then a suspect. The court conducted a pretrial voir dire upon the defendant's motion to suppress evidence of his statement to the officers concerning this conversation. It found that the defendant was not in custody but was free to terminate the interview and leave at will, as, in fact, he did immediately after the conclusion of the interrogation. The rule of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), relating to the admissibility of confessions made without prior warning of the declarant's constitutional rights, applies only to statements while in custody. The finding of the trial court that the defendant was not in custody at the time he made the statement in question, being supported by evidence in the record, elicited on a properly conducted voir dire, is conclusive. State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597 (1970); State v. Wright, 274 N.C. 84, 93, 161 S.E.2d 581 (1968); State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1 (1966). The motion to suppress the statement made by the defendant to investigating officers on the afternoon of 30 March 1976 was also properly denied. Both upon the motion to suppress and upon the defendant's objection to the introduction of the evidence at the trial, the court conducted a full voir dire and made detailed findings of fact which are supported completely by the evidence for the State. At neither hearing did the defendant offer any evidence whatever. It is true that, some eight hours prior to this conversation with the officers, the defendant had stated he wanted an attorney. When he did so, the interrogation then being conducted ceased immediately. The subsequent interrogation, eight hours later, was initiated by the defendant, not the officers. Prior to making the confession, the defendant was once more warned of his constitutional rights, including his right to counsel, and he expressly stated that he was willing to talk to the officers without the presence of an attorney. The evidence indicates no threats and no promises were made or other inducements given to cause the defendant to confess his guilt. Here also, the findings of fact by the court, being supported by evidence, are conclusive. State v. Smith, supra; State v. Wright, supra; State v. Gray, supra. The defendant's earlier request for counsel did not make inadmissible the confession made at the subsequent conversation with the investigating officers, initiated by the defendant, himself, at which he was again fully informed of his constitutional rights and at which he expressly waived the right to have counsel present. State v. Jones, 278 N.C. 88, 93, 178 S.E.2d 820 (1971). See also: State v. Bishop, 272 N.C. 283, 296, 158 S.E.2d 511 (1968). In his argument to the jury, counsel for the defendant read the statute relating to armed robbery, including the provision thereof prescribing the punishment, this being G.S. 14-87. The trial court sustained the objection of the State. In this there was error since counsel was entitled to so inform the jury. State v. McMorris, 290 N.C. 286, 225 S.E.2d 553 (1976). This error was, however, harmless beyond a reasonable doubt. The desired information was thus brought to the attention of the jury and the jury was not instructed to disregard it or that it was erroneous. Furthermore, upon the charge of armed robbery, judgment was arrested. The defendant next assigns as error the denial of his motion for a mistrial. During the selection of the jury, a prospective juror stated that he had formed an opinion that the defendant was guilty because the defendant's alleged companion had committed suicide and the defendant had tried to do so. The defendant contends 527 that this response, blurted out by the prospective juror in the presence of jurors already selected and others of the panel awaiting interrogation, was so prejudicial that its effect could not be removed by instructions of the judge. In State v. Jarrette, 284 N.C. 625, 639, 202 S.E.2d 721, 732 (1974), reversed as to the imposition of the death penalty only, 428 U.S. 903, 96 S. Ct. 3205, 49 L. Ed. 2d 1206, a juror stated on voir dire that he had read in the newspaper that the defendant, charged with rape, murder and kidnaping, had been declared an outlaw. We held that there was no error in the denial of the defendant's motion for mistrial on account of this statement made in the presence of other selected and prospective jurors. As we there stated: "A mistrial is not lightly granted. The granting of the defendant's motion therefor rests largely in the discretion of the trial judge. State v. Self, 280 N.C. 665, 187 S.E.2d 93; Strong, N.C. Index 2d, Criminal Law, § 128." The defendant assigns as error the overruling of his objection to the introduction in evidence of certain photographs admitted to illustrate the testimony of the doctor who performed autopsies upon the bodies of Mr. and Mrs. Royal. The ground for this objection was that these photographs had not been supplied to the defendant pursuant to the order for discovery. The record establishes that the District Attorney did not know of the existence of these photographs until the morning on which the witness was called to testify. Furthermore, the exclusion of evidence for the reason that the party offering it has failed to comply with the statutes granting the right of discovery, or with an order of the court issued pursuant thereto, rests in the discretion of the trial court. G.S. 15A-910. The defendant next assigns as error the overruling of his objections to the introduction in evidence of certain other photographs of the bodies of Mr. and Mrs. Royal as they lay in the living room of the home and in the tool shed and of the areas surrounding them. The defendant contends that these photographs were excessive in number. We find no merit in this contention. The photographs were not merely repetitious, each being useful to illustrate a portion of the testimony of the witness not illustrated by other photographs. It is well settled that the mere fact that a photograph is gruesome, revolting or horrible does not prevent its use by a witness to illustrate his testimony. State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), reversed as to death penalty only, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859; State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967); State v. Gardner, 228 N.C. 567, 46 S.E.2d 824 (1948). Nevertheless, an excessive number of such photographs may not properly be admitted in evidence. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). What constitutes an excessive number of photographs must be left largely to the discretion of the trial court in the light of their respective illustrative values. The photographs in the present case were not merely repetitious. They portrayed somewhat different scenes and we find in the use of the total number no abuse of discretion. It is elementary that, upon a motion for judgment as in the case of nonsuit in a criminal action, the evidence must be considered in the light most favorable to the State, and the State must be given the benefit of every inference of fact that may reasonably be drawn therefrom. State v. Holton, 284 N.C. 391, 200 S.E.2d 612 (1973); State v. Henderson, 276 N.C. 430, 173 S.E.2d 291 (1970); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). The fact that the doctor who performed the autopsy expressed the opinion that Mr. and Mrs. Royal could not have been killed prior to the day after the dates alleged in the bills of indictment does not entitle the defendant to such judgment of nonsuit upon the present record. G.S. 15-155; State v. Holton, supra; State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972); State v. Gore, 207 N.C. 618, 178 S.E. 209 (1935). The evidence of 528 the State, taken to be true, reveals two ruthless, brutal murders in the perpetration of a planned robbery by the defendant and his companion. This assignment of error is overruled. The defendant next contends that the trial court erred in failing to submit to the jury, as a possible verdict, the defendant's guilt of common law robbery. There is no evidence whatever in the record to show common law robbery. All of the evidence is that each of the victims was struck on the head with a weapon of such nature and used with such force as to make it a deadly weapon. Thus, the robbery committed was armed robbery, not common law robbery. As this Court, speaking through Justice Sharp, now Chief Justice, said in State v. Lee, 282 N.C. 566, 569, 193 S.E.2d 705, 707 (1973): "The essential difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. G.S. 14-87 (1969); State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971). In a prosecution for armed robbery the court is not required to submit the lesser included offense of common law robbery unless there is evidence of defendant's guilt of that crime. If the State's evidence shows an armed robbery as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged an instruction on common law robbery is not required." Furthermore, in the present case, the defendant received no sentence for the robbery, judgment being arrested as to that charge. A murder committed in the perpetration of any robbery, whether armed robbery or common law robbery, is murder in the first degree. G.S. 14-17. Therefore, even had there been error in the failure of the court to submit guilt of common law robbery as a possible verdict, the defendant was in no way prejudiced thereby. Finally, there is no merit in the defendant's contention that the court failed to instruct the jury that if it found the defendant was merely present at the scene of the crime that circumstances alone would not justify a verdict of his guilt thereof. Actually, the court did so instruct the jury, but, in any event, the defendant's own statement, properly admitted in evidence, shows that he actively participated in the planning of the robbery and in its execution. This being true, it is immaterial that it was his companion who struck the fatal blows. State v. Scott, 289 N.C. 712, 224 S.E.2d 185 (1976); State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973). We have carefully examined all of the defendant's assignments of error relating to his convictions upon the charges of armed robbery and first degree murder and find no merit in any of them. However, since we are compelled to accept as correct interpretations placed by the Supreme Court of the United States upon provisions of the United States Constitution and to comply therewith in applying those provisions to the statutes, of this State, and since that Court, in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), held that the provisions of G.S. 14-17, imposing the death penalty for murder in the first degree, violate the Constitution of the United States, and so may not be given effect by the courts of this State, we must hold that there is merit in the defendant's attack upon the death sentence imposed upon him by reason of his convictions of murder in the first degree. Consequently, the judgment of the Superior Court sentencing the defendant to death upon these verdicts, must be, and is hereby, vacated and, by authority of the provisions of the Session Laws of 1973, Ch. 1201, § 7 (1974 Session), a sentence to imprisonment for life must be substituted therefor. State v. Cawthorne, 290 N.C. 639, 650, 227 S.E.2d 528 (1976). This case is, therefore, remanded to the Superior Court of Wilkes County with directions (1) that the presiding judge, without requiring the presence of the defendant, enter a judgment imposing upon the 529 defendant a sentence of life imprisonment for the first degree murders of which he has been convicted, in lieu of the sentence of death heretofore imposed upon him; and (2) that, in accordance with this judgment, the Clerk of the Superior Court issue a new commitment in substitution for the commitment heretofore issued. It is further ordered that the Clerk furnish to the defendant and to his attorney a copy of the judgment and commitment as revised pursuant to this opinion. NO ERROR IN THE VERDICT. DEATH SENTENCE VACATED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1507849/	197 A.2d 331 (1964) William E. WALSH, Jr., One of the Defendants Below, Appellant, v. Mildred A. BAILEY, Plaintiff Below, Appellee, and The Sussex Trust Company, as Executor under the Will of William E. Walsh, Sr., and in its Corporate Capacity, The Remaining Defendant Below, Appellee. Supreme Court of Delaware. January 24, 1964. James M. Tunnell, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, for appellant. H. James Conaway, Jr., and Richard H. May, of Morford, Young & Conaway, Wilmington, for appellee Mildred A. Bailey. TERRY, C. J., and WOLCOTT and CAREY, JJ., sitting. TERRY, Chief Justice. This is an appeal from the Court of Chancery. William E. Walsh, Sr., died testate and left his estate equally to his only surviving children, a son and daughter. The facts which are pertinent to this controversy involve the disposition of certain sums on deposit in three accounts with The Sussex Trust Company. In each instance Mr. Walsh and his son were the persons authorized to make withdrawals therefrom. Mr. Walsh's daughter, the plaintiff below, seeks to have all sums on deposit in these accounts at the time of Mr. Walsh's death included in his estate. The son, however, claims all monies on deposit were held by him and his father as joint tenants with the right of survivorship. It is his contention that he is solely entitled to the funds and objects to their inclusion in his father's estate. 332 Plaintiff brought this suit below in the nature of a derivative action on behalf of the estate. The testamentary executor, The Sussex Trust Company, was also named as a defendant and plaintiff seeks to surcharge it for failing to properly conserve the assets of the estate and to remove it as executor. Subsequent to a trial on the merits, the Vice-Chancellor below ruled in favor of the plaintiff daughter and ordered that all sums in the controverted bank accounts be included among the assets of the father's estate. In addition, the Court surcharged the executor for all interest or penalties imposed on plaintiff's share of the estate by the State of Delaware or the United States by reason of the belated inclusion in the estate of the sums in the bank accounts due to underpayment and/or late payment of death taxes. A credit, however, was granted for any amounts earned as interest on plaintiff's share after the date when additional death taxes should have been paid. The Court declined to remove the executor on the ground that the circumstances did not show a breach of fiduciary duty which would warrant such action. By way of background, the accounts in question were known as (a) William E. Walsh, Regular Account (b) William E. Walsh, Building Account (c) William E. Walsh, Special Account They were used by Mr. Walsh in the operation of his business, and his son who worked for him in that business was the only other person authorized to draw checks thereon. Each account was opened on different dates, but Mr. Walsh and his son executed the following form, provided by the Bank, at the time of their opening: "JOINT ACCOUNT-PAYABLE TO EITHER OR SURVIVOR "It is agreed and understood that any and all sums that may from time to time stand in this account, to the credit of the undersigned depositors, shall be taken and deemed to belong to them as joint tenants and not as tenants in common; while both joint tenants are living, either may draw and in case of the death of either, this Bank is hereby authorized and directed to deal with the survivor as sole and absolute owner thereof. "It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives. "Payment to or on check of the survivor shall be subject to the laws relating to inheritance and succession taxes and all rules and regulations made pursuant thereto. "Witness our hands and seals this ________ day of __________ 19__. WITNESS: /s/ C.E.M., W/ W. E. W., Sr. /s/ William E. Walsh (SEAL) /s/ C.E.M.,W/ /s/ William E. Walsh, Jr., (SEAL)" Irrespective of these joint account agreements the Vice-Chancellor permitted the introduction of parole evidence to show the father's alleged intent regarding the disposition of the sums on deposit therein. The basis of his ruling was predicated on 333 the idea that the agreements were too vague and ambiguous. We would be inclined to agree with the Vice-Chancellor were it not for the second paragraph of those agreements. To us the meaning of the agreements seems clear. The complete tenor of the instruments connotes a joint tenancy, not only by specific reference to such a relationship, but also by outlining the consequences upon the "* * * heirs, next of kin, legatees, assigns and personal representatives" which will flow from that relationship between the parties. While the above cited agreement may not perhaps be framed in the most precise language we believe it is sufficiently clear to impart the creation of a joint tenancy with right of survivorship. In re Furjanick's Estate, 375 Pa. 484, 487, 100 A.2d 85 (1953). One argument made by appellee is that the evidence was admissible to show mutual mistake, i. e., that the parties thought they were executing a power of attorney to sign checks rather than creating a joint account payable to the survivor. A Court of Equity may, of course, grant appropriate relief when mutual mistake is properly proven, but to prove it the evidence must be clear and convincing; mere preponderance does not suffice. 20 Am. Jur., Evidence, Sec. 1253; 32 C.J.S. Evidence § 1023. Here the Vice-Chancellor found that there was no clear and convincing evidence of the father's actual purpose in signing the agreements. We agree with that finding. In view of the language of the agreements, we conclude that it was error to have accepted the parole evidence for the purpose relied upon by the Vice-Chancellor. For the reasons assigned, the judgment of the Court below is hereby reversed. All sums in the previously named accounts at the time of William E. Walsh's, Sr. death are declared to belong solely to William E. Walsh, Jr. It follows that the surcharge against the corporate executor must fall.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1644076/	994 So.2d 317 (2008) RODRIGUEZ v. STATE. No. 3D08-752. District Court of Appeal of Florida, Third District. October 14, 2008. Decision without published opinion. Hab.Corp.dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1725552/	721 So. 2d 792 (1998) Michael MIDDLETON, Appellant, v. The STATE of Florida, Appellee. No. 98-2906. District Court of Appeal of Florida, Third District. December 9, 1998. *793 Michael Middleton, in proper person. Robert A. Butterworth, Attorney General, for appellee. Before SCHWARTZ, C.J., and NESBITT and COPE, JJ. PER CURIAM. Michael Middleton appeals the denial of his motion for postconviction relief, whereby he challenges his sentence as a habitual offender. We affirm. According to defendant-appellant Middleton's motion, the offense for which defendant was habitualized occurred May 24, 1994. Defendant acknowledges that the State established that defendant was convicted of a qualifying offense within the previous five years, based on felony convictions entered November 30, 1992. See § 775.084(1)(a)2., Fla. Stat. (1993). Defendant acknowledges having another prior felony conviction, in circuit court case number 83-12144. However, defendant argues that the 1983 case cannot be used as a predicate felony because defendant was released from prison on July 15, 1987, more than five years before the 1994 crime. Defendant contends that the 1983 case must be disregarded. Defendant is in error. The habitual offender statute "requires only that a defendant's last prior felony [or release from imprisonment]... be within five years of the date of the current felony offense." Clark v. State, 681 So. 2d 816 (Fla. 5th DCA 1996); see § 775.084(1)(a)2., Fla. Stat. (1993). Thus, only one of the qualifying offenses must have been committed (or the defendant released) within five years of the current offense. The other qualifying offense (or release) can be more than five years from the current offense. It follows that the 1983 case was properly counted as a predicate offense. The trial court correctly denied the motion for postconviction relief. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264424/	744 A.2d 137 (2000) 162 N.J. 252 STATE of New Jersey, Plaintiff-Appellant, v. G.V., Defendant-Respondent. Supreme Court of New Jersey. Argued September 14, 1999. Decided January 27, 2000. 138 Teresa A. Blair, Deputy Attorney General, for plaintiff-appellant (John J. Farmer, Jr., Attorney General of New Jersey, attorney). Alan I. Smith, Designated Counsel, for defendant-respondent (Ivelisse Torres, Public Defender, attorney). PER CURIAM. A jury has convicted defendant of the repeated sexual molestation of his young daughter during the five-year period between 1985 and 1990. Some of the evidence admitted at trial related to acts of sexual molestation that he had allegedly committed on an older sister of the victim. Those offenses were claimed to have occurred years before the offenses charged in the indictment. The trial court instructed the jury that the evidence should not be considered as demonstrating that defendant had a disposition to commit the offenses charged, but failed, more specifically, to explain to the jury the relevance of that evidence to material issues that were genuinely in dispute and, thus, to constrict the jury's consideration of that evidence to such issues as were genuinely in dispute. The jury convicted defendant of aggravated sexual assault, sexual assault, endangering the welfare of his child, and terroristic threats. After merging the sexual assault conviction into the aggravated sexual assault conviction, the court sentenced the defendant to an aggregate term of 15 years imprisonment. In an unreported opinion, the Appellate Division reversed the convictions. The Appellate Division found that the older sister's testimony was inadmissible because it constituted other-crime evidence that was not relevant to prove intent or to disprove possible defenses of accident or mistake (the purposes for which the trial court had admitted the evidence), and was more prejudicial than probative. 139 We granted the State's petition for certification. 157 N.J. 645, 725 A.2d 1126 (1999). I Because the victim and her older sister have the same first initial, we shall refer to them by pseudonyms. We shall also refer to their mother by a pseudonym. The victim, Laura, was born in 1979. She lived in Monmouth County with her mother, Nancy, her older sister, Linda, two younger brothers, and her father, defendant G.V. In 1985, when Laura was six years old, her father began to molest her, frequently touching her intimate parts or having her touch his. When Laura was eight years old, defendant began having sexual intercourse with her. On some occasions, defendant forced Laura to engage in sexual activities with her younger brother. Defendant committed these acts at night while Laura's mother was at work. A family friend described an occasion when visiting defendant's home. She was seated directly across from the couch where defendant and Laura were sitting. She saw Laura begin to rub defendant's shoulders. Defendant brought Laura on his lap and started "stroking" the outside of her thigh. The woman thought that was done in a "sexual way" but dismissed the thought. She and her husband never mentioned the incident to anyone. Laura believed that what she and her father were doing was a secret. She never told anyone about it because she was afraid. Defendant had threatened her that if she told anyone, she, her family, and her pets would be killed. The conduct ended in 1990 when Laura was ten years old. About 1989, the family structure changed. Linda (the older sister) married and Laura's mother and father separated. In January of 1992, defendant was visiting at the family home when Linda and her husband, Walter, were present. There was an altercation between defendant and Walter because defendant brought his girlfriend to the house. Defendant threatened to kill Walter. Nancy called the police and later obtained a temporary restraining order against the defendant. Two days later, Nancy agreed to vacate the restraining order because she thought that they could reconcile. After Nancy vacated the restraining order, Laura experienced deep depression. Relatives found Laura in the kitchen staring into space, unable to speak, with her body clenched. She was hospitalized for her disorder. While attending a group session at the hospital, Laura confided in another girl that she had been sexually assaulted by her father. The girl advised Laura to report the matter to one of the attendant doctors. Laura told a nurse. Hospital staff informed the Division of Youth and Family Services and Laura's mother about the sexual assaults. Laura had not been able to tell her mother because she was embarrassed and ashamed. When Nancy told her other daughter, Linda, about the sexual assaults on Laura, she asked Linda whether their father had ever sexually molested her. Linda revealed for the first time that she too had been sexually assaulted by her father. Linda said that defendant had sexually abused her from the age of four to eight. When Linda was six years old, defendant began having sexual intercourse with her. The assaults occurred at night while Nancy, was at work. A complaint was filed charging defendant with the sexual abuse of Laura. (Defendant was not charged with the attacks on Linda because the statute of limitations had expired.) At trial, defendant denied the charges, testified, and presented character witnesses. He asserted that the charges had been fabricated. He contended that the family was angry because he had left Nancy for another woman. II Linda's testimony that her father had sexually assaulted her is referred to as 140 other-crime evidence. The principles that govern the admission of other-crime evidence were recently restated in State v. Marrero, 148 N.J. 469, 691 A.2d 293 (1997). At the time of Marrero's trial, the admissibility of other-crime evidence was controlled by Evidence Rule 55. Currently, the admissibility of other-crime evidence is governed by N.J.R.E. 404(b), which states: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. For convenience, we will conform the references in Marrero to the new rule. Evidence Rule [404(b) ] makes clear that other-crime evidence is only admissible if relevant to prove some other fact genuinely in issue. State v. Oliver, 133 N.J. 141, 151, 627 A.2d 144 (1993); State v. Stevens, 115 N.J. 289, 558 A.2d 833 (1989). Where the other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the "probativeness/prejudice" balancing under Evidence Rule 4, now N.J.R.E. 403. In addition to being relevant to an issue genuinely in dispute, the other-crime evidence must "be necessary for [the disputed issue's] proof." Stevens, supra, 115 N.J. at 301, 558 A.2d 833. Because of its damaging nature, in determining the probative worth of other-crime evidence, "a court should consider... whether its proffered use in the case can adequately be served by other evidence." Id. at 303, 558 A.2d 833; see also Oliver, supra, 133 N.J. at 151, 627 A.2d 144 (stating that "[a]n important factor in weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue"). Once it is determined that the other-crime evidence is material to a fact genuinely in issue and that the other-crime evidence is necessary, "the probative value of the proffered evidence [must] be carefully balanced against the danger that it will create undue prejudice against the defendant." Stevens, supra, 115 N.J. at 302, 558 A.2d 833. Where the probative value is outweighed by prejudice to the defendant, then it is inadmissible. Evid. R. 4 (currently N.J.R.E. 403). Consequently, the primary focus of Evidence Rule [404(b) ], when examined in conjunction with Evidence Rule [403], is to view it as a rule of exclusion rather than a rule of inclusion. State v. Cofield, 127 N.J. 328, 337-38, 605 A.2d 230 (1992). After many years of decisional law determining when other-crime evidence is admissible, a four-part test has been distilled. That test is designed "to avoid the over-use of extrinsic evidence of other crimes of wrongs." Id. at 338, 605 A.2d 230. That rule is as follows: 1. The evidence of the other crime must be admissible as relevant to a material issue; 2. It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Ibid. (quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Ermory L.J. 135, 160 (1989)).] When other-crime evidence is admitted, "the court must instruct the jury on the limited use of the evidence." Cofield, 141 supra, 127 N.J. at 340-41, 605 A.2d 230; see also Stevens, supra, 115 N.J. at 304, 558 A.2d 833. Because of the inherently prejudicial nature of other-crime evidence, the court's instruction "`should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.' " Cofield, supra, 127 N.J. at 341, 605 A.2d 230 (quoting Stevens, supra, 115 N.J. at 304, 558 A.2d 833). [State v. Marrero, supra, 148 N.J. at 482-83, 495, 691 A.2d 293.] From Marrero we distill the principles that are crucial to the decision in this case: The other-crime evidence must be relevant to an issue "genuinely in dispute." The other-crime evidence must be "necessary for [the disputed issue's] proof." The court must "explain precisely" to the jury the permitted and prohibited uses of the evidence. Because those controlling principles were not followed by the trial court, the Appellate Division was constrained to reverse the conviction. Our opinion will review that judgment and seek to correct the implication in the Appellate Division opinion that the other-crime evidence in this case might be inadmissible for any purpose. III Relying on State v. Cusick, 219 N.J.Super. 452, 530 A.2d 806 (App.Div.), certif. den., 109 N.J. 54, 532 A.2d 1118 (1987), the trial court admitted the evidence of prior sexual abuse. In Cusick, the defendant was charged with sexually assaulting two victims. Cusick argued that he had intended only to swing and cradle one of the victims and that any sexual contact was inadvertent. The Cusick court admitted other-crime evidence to rebut the defendant's claim of mistake and to establish the defendant's intent. The Cusick court gave a limiting instruction directing the jury to consider the evidence "as it may bear on the issue of whether the alleged touching of [the victims] was accidental or it was a mistake. Likewise, it might also bear on the defendant's motive for allegedly touching the victims here. This is to obtain some sort of sexual gratification, or on the issue of his intention to touch the children, victims here." Id. at 466, 530 A.2d 806. The trial court reasoned that Cusick's principles would apply to this case. In its unreported opinion, the Appellate Division explained how in this case neither mistake nor intent to obtain sexual gratification was genuinely in dispute. The Appellate Division explained: [T]he trial court adopted the prosecutor's view that earlier attacks on [Linda, the older sister] were relevant to intent in two respects. As summarized in [the State's] brief: the judge "reasoned that the prior sexual attacks were material because a possible defense by defendant of accident or mistake could be raised by defendant, claiming that he was merely being affectionate towards his daughter and showing her fatherly love. The judge also noted that the State was required to prove that defendant committed the acts for the purpose of sexual arousal or gratification. He thus found that the prior sexual assaults would bear on this issue as it showed defendant committed the sexual assaults on both victims when they were around the same age, between four and eight years old." The supposed "possible defense" was never raised by the defendant. Moreover, to do so in the context of this case would have been absurd. If we were dealing with an isolated incident, or even a few separate occasions, of allegedly improper touching, the "possible defense" might have been an issue. But 142 this case involves an horrendous course of patent sexual depravity which continued for years. No reasonable defense, under these circumstances, would rely on the theory that these atrocious acts were simply misinterpreted expressions of fatherly affection. Nor can it be fairly said that if the defendant committed the acts in question, there was a material factual dispute with regard to whether he was seeking sexual gratification. As stated in State v. Stevens, 115 N.J. 289, 301, 558 A.2d 833 (1989), a "necessary corollary to the principle that other-crime evidence can be admitted to prove any fact in issue... is the requirement that the "issue" be genuine, and that the other-crime evidence be necessary for its proof." Neither of these requirements were satisfied here. As the prosecutor's summation plainly demonstrates, the evidence of defendant's sexual depravity with his first daughter was offered for no reason other than to demonstrate that defendant was predisposed to engaging in sexual conduct with his daughters in their prepubescent years. The evidence was not admissible under N.J.R.E. 404(b), supra. Therefore, the convictions must be set aside and the matter remanded for a new trial. As the Appellate Division noted, the analytical errors were compounded by the prosecutor's misuse of the testimony. During summation, the prosecutor made no attempt to suggest to the jury that the other-crime evidence should be considered only as bearing on defendant's intent to obtain gratification or to rebut a defense of mistaken physical contact. Instead, the prosecutor described the other-crime events in broad terms that, in essence, urged the jury to use defendant's character and past conduct as a basis for inferring that Laura's testimony was true. The Appellate Division opinion contains longer excerpts of the prosecutor's summation. The following example will suffice to make the point: [Laura] said the defendant would say it was our secret, don't tell anybody. And then as [Linda] got older, sexual intercourse began. Similar fact pattern with [Laura]. It is just the way he operates. It is not two girls getting together. That's what he was interested in doing, having sex with younger girls, pre-teen age girls. [Emphasis added.] If that is not an allusion to propensity, then we do not know what would be. Our dissenting members suggest that the defenses of accident or mistake or absence of intent to seek sexual gratification were genuinely disputed at least in respect of the charges of criminal sexual contact (that is, sexual contact without penetration as in the "leg-rubbing" incident). If that were the case, then the trial court would have to have had "explain[ed] precisely" to the jury that limited purpose. It did not do so. Moreover, we doubt that the trial court would have found that so limited a purpose would pass the "probativeness/prejudice" test required by Marrero, supra, 148 N.J. at 482, 691 A.2d 293. Because of the hardship that will be imposed by a retrial of this case, we must consider whether the error may be viewed as harmless. Our courts have on occasion found that inadequate (but not incorrect) limiting instructions were not so prejudicial to a defendant's fair-trial rights as to require the reversal of a conviction. State v. G.S., 145 N.J. 460, 476, 678 A.2d 1092 (1996); State v. Stevens, supra, 115 N.J. at 309, 558 A.2d 833; State v. Cusick, supra, 219 N.J.Super. at 467, 530 A.2d 806. Our dissenting members suggest that because the other-crime evidence might have been admissible for purposes other than to establish the main charge of aggravated sexual assault by penetration, we may view the case as though it were like G.S., Stevens, or Cusick. It is simply not possible to do so. In each of those cases the other-crime evidence was relevant to an issue 143 genuinely disputed in the trial of the charge that led to conviction. In G.S., supra, the evidence of prior sexual abuse of children in Monmouth County was relevant to establish that the sexual contacts in Sussex County, for which he was convicted, were not "inadvertent, accidental or unplanned." 145 N.J. at 469, 678 A.2d 1092. In Stevens, supra, the prior encounters by a law enforcement officer with women exhibited a purpose to seek sexual gratification, not to fight crime. 115 N.J. at 308, 558 A.2d 833. In Cusick, supra, the prior sexual misconduct tended to prove that the subject conduct was not an accident or mistake. 219 N.J.Super. at 465, 530 A.2d 806. As the Appellate Division noted, the genuinely disputed issues in this case were not that the intercourse with a child was the result of a mistake because inadvertent or accidental, or evidenced an absence of intent to seek sexual gratification. Intellectual honesty compels the conclusion that there is no genuine dispute that one who has sexual intercourse with an eight-year-old daughter has made a "mistake" or is not seeking sexual gratification. The analysis in G.S., Stevens and Cusick simply does not apply when the evidence is admitted for the wrong purpose. Neither absence of intent or accident or inadvertence or motive were genuinely at issue as to the main crime of sexual assault involving penetration. Because defendant objected to admission of the evidence, the error in admitting the other-crime evidence cannot be viewed under the less demanding plain error standard of Rule 2:10-2. Nor can the error be salvaged under the harmless error doctrine. If the evidence could not have come in on the main charge, as it did, the error cannot be viewed as harmless. Nothing could be more prejudicial than the erroneous admission of such testimony. The [harmless error] rule is essential "to conserve judicial resources," but it must be applied with caution so as to assure "the vitality of the rules and procedures designed to assure a fair trial." There is enormous potential for prejudice in the improper admission of a defendant's prior convictions. Commentators have suggested that such error should be considered harmful per se. See The Riddle of Harmless Error, where Chief Justice Traynor wrote: The erroneous admission of evidence of other crimes also carries such a high risk of prejudice as ordinarily to call for reversal. [State v. Atkins, 151 N.J.Super. 555, 570, 377 A.2d 718 (App.Div.1977), rev'd, primarily on issue of intoxication charge and that evidence of burglary was "undisputed," 78 N.J. 454, 396 A.2d 1122 (1979) (internal citations omitted) (emphasis added in original).] "[T]he question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict." State v. Macon, 57 N.J. 325, 335, 273 A.2d 1 (1971). "[U]pon that question the reviewing judge [is] inevitably remitted to his [or her] own conscientious judgment." Id. at 338, 273 A.2d 1. This Court has sought to prevent overuse of the "harmless error" doctrine. In State v. Czachor, 82 N.J. 392, 404, 413 A.2d 593 (1980), the Court explained that "errors which impact substantially and directly on fundamental procedural safeguards ... are not amenable to harmless error rehabilitation." As stated in State v. Simon, 79 N.J. 191, 206, 398 A.2d 861 (1979): "Errors impacting directly upon ... sensitive areas of a criminal trial are poor candidates for rehabilitation under the harmless error philosophy...." For this reason, the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards "designed to assure a fair trial." (Citations omitted). "There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant. The likelihood of 144 prejudice is acute when the proffered evidence is proof of a defendant's uncharged misconduct." State v. Stevens, supra, 115 N.J. at 302, 558 A.2d 833. Finally, even if the evidence had been admissible on the subsidiary issues in the case, the charge in this case left the jury wholly unguided as to how to use the evidence for such limited purposes. An erroneous charge will rarely stand on the ground that it was harmless error. State v. Weeks, 107 N.J. 396, 410, 526 A.2d 1077 (1987). Although reviewing courts are ordinarily reluctant to reverse on the ground of plain error when no objection to the charge has been made, it has been "repeatedly emphasized that incorrect instructions of law are poor candidates for rehabilitation under the harmless error theory." Ibid. (citations omitted). These well-settled principles compel the conclusion that defendant's conviction must be reversed and the matter remanded for a new trial. In reversing the defendant's conviction in Oliver, the Court distinguished the cases in which instructional errors had been found to be harmless: By contrast, the trial court in this case did not explain the relationship between the other-crime evidence and the issues and facts on which it could be considered. Although the court did clearly instruct the jury that it was not to use the evidence to determine that defendant was a bad person or that he had been disposed to commit the crimes charged in the indictment, it did not clearly instruct the jury on how it could use the other-crime evidence. Precisely that situation prompted this Court to find reversible error in Cofield. [State v. Oliver, supra, 133 N.J. at 158-59, 627 A.2d 144 (emphasis added).] IV Although, then, we agree with the Appellate Division that the other-crime evidence was irrelevant to the aggravated sexual assault charge and inadmissible on that count, the evidence does have relevance to one of the defenses raised by the defendant at trial. It was a theory of the defense that Laura's story of sexual molestation was fabricated by Laura as revenge for her father's having abandoned her mother and her anger over his having come to the home with a new girlfriend. Evidence is relevant if it tends "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In determining whether evidence is relevant, the inquiry should focus on the "logical connection between the proffered evidence and a fact in issue." State v. Hutchins, 241 N.J.Super. 353, 358, 575 A.2d 35 (App.Div.1990), and "whether the [evidence offered] `renders the desired inference more probable than it would be without the evidence.'" State v. Davis, 96 N.J. 611, 619, 477 A.2d 308 (1984) (quoting State v. Deatore, 70 N.J. 100, 358 A.2d 163 (1976)). If the evidence offered makes the inference to be drawn more probable, then the evidence should be admitted unless otherwise excludable by a rule of law. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 401 (1998-1999). The fact in issue is bias on the part of Laura. Does Linda's testimony make it more probable that Laura's testimony was not the product of bias? In some sense Linda's testimony is similar to that which was offered in Stevens, supra, 115 N.J. at 295-97, 558 A.2d 833. Recall that in Stevens a police officer was charged with official misconduct involving strip searches of arrested women that were motivated by the officer's desire for sexual gratification. The State presented evidence of previous incidents in which the officer induced other female arrestees to undress or provide sexual favors. If the testimony of the other women in Stevens had a tendency in reason to make more probable the inference that the strip searches had a purpose other than law enforcement, the testimony of another daughter in this case would 145 appear to make it more probable that bias was not the motivation for Laura's testimony. Put another way, is it logical to conclude that two daughters would be less likely to trump up testimony than one? See also State v. G.S., supra, 145 N.J. at 475, 678 A.2d 1092 (holding that evidence of uncharged prior sexual assaults on the same victim were admissible as bearing on the credibility of the victim). The difficulty in using the other-crime evidence to assess bias on the part of the child-victim in this case is that bias of the witness because of a vendetta against the father is not, in the first instance, a material issue that is genuinely in dispute. It is only when defendant puts the bias of the witness (on account of a vendetta) into issue that the evidence would be admissible. If, at the hearing prior to trial under Evidence Rule 104, defendant disclaims the use of the vendetta defense, the State would have no basis for admitting the evidence. On the other hand, if the defendant renews the vendetta defense, it appears to us that the testimony of the older sister is relevant to show that the testimony of Laura is not the product of bias. Of course, the trial court would have to complete the Marrero analysis, balancing the probative worth of the evidence against its prejudicial effect. (Not all members concurring in Part IV would require the probative-prejudice analysis, Coleman, J., concurring, post at 281, 744 A.2d at 154, but we believe that the trial court should do the complete analysis in light of the revised purpose for which the evidence is to be offered.) The State also suggests that the other-crime evidence might be relevant to establish the disputed fact of access or the opportunity to have been alone with the child. See State v. Oliver, supra, 133 N.J. 141, 627 A.2d 144 (discussing relevance of prior sexual attacks on women in an upstairs apartment when defense of feasibility was asserted). The issue of feasibility, however, was not "genuinely in dispute," Marrero, supra, 148 N.J. at 482, 691 A.2d 293, and, unless it is genuinely disputed on retrial, cannot provide a basis for admission of the other-crime evidence. The judgment of the Appellate Division is affirmed. The matter is remanded to the Law Division for further proceedings in accordance with this opinion. LONG, J., concurring in part and dissenting in part. The Appellate Division concluded that Linda's testimony was improperly admitted at defendant's trial and that a retrial is in order. To the extent that the majority affirms that conclusion, I concur. Where I part company from my colleagues is in connection with their separate determination that Linda's testimony may be relevant, and therefore possibly admissible on another basisto refute the so-called "vendetta defense." More particularly, the majority reasons that Linda's testimony may be admissible because it makes it "more probable" that Laura's testimony was not the product of bias. I respectfully disagree. Linda's testimony does not, in any legitimate way, address Laura's bias or vendetta. The kind of evidence that would be relevant on those issues would be testimony, for example, from Linda, or some other person, that Laura expressed no animosity against defendant, indicated her love for him or accepted her parents' break up with equanimity. Linda's testimony could not be further from that point. Indeed, the only logical link between Linda's testimony and Laura's possible bias is defendant's propensity to commit sex crimes. The only way that Linda's testimony can be related to Laura's bias is if a jury reaches the conclusion that because defendant committed sexual acts against Linda, it is more likely that he committed them against Laura and thus, it is more likely that Laura is being truthful and unbiased when she reports them. This is exactly what N.J.R.E. 404(b) was meant to prohibit. Linda's testimony does 146 not make it more likely that Laura is not biased. It simply does not follow that two daughters, angry at their father's treatment of their mother, would be less likely than one to trump up a story. What is more likely is that the jury will conclude that because defendant had sexual contact with Linda he must have done so again with Laura. The Federal Rules have recently cast off 200 years of evidentiary practice in cases like this by allowing the use, for any relevant purpose, of sexual assault or child molestation evidence not charged in the indictment or information. Fed.R.Evid. 413, 414, 415. See Jeffrey G. Pickett, The Presumption of Innocence Imperilled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual Evidence in Washington, 70 Wash. L.Rev. 883 (1995). Based on their prior opinions as to the importance of N.J.R.E. 404(b), I do not believe that my colleagues in the majority would subscribe to such a scheme. It is therefore hard for me to understand why they are willing to allow this most meager pretext to justify admission of what is clear propensity evidence, when by doing so they are effectively dismantling the Rule. Chief Justice PORITZ joins in this opinion. COLEMAN, J., dissenting from the judgment of the Court reversing the convictions and concurring with Justice O'HERN's and Justice STEIN's view that the other-crime evidence is admissible to rebut the vendetta defense. The majority has concluded that defendant's convictions for aggravated sexual assault, sexual assault, endangering the welfare of a child, and terroristic threats must be reversed. The basis for the reversal is the Court's conclusion that other-crime evidence presented by the victim's sister was too prejudicial. Justices O'Hern and Stein nonetheless conclude that the same evidence, relevant to rebut the vendetta defense in the prior trial, may be reintroduced at a new trial if that defense is asserted again. Because I find any error related to the admissibility and jury instructions regarding that evidence to be harmless, I would uphold the convictions. Hence, I dissent. I. L.V., the victim, was born in 1979 and lived in the same house with her mother, N.V., and her father, the defendant. L.V.'s older sister, L.J.V., who was born in 1971, and their two younger brothers also lived in the same house with their parents. In 1985, when L.V. was six years old, defendant began frequently fondling her breasts and vagina. From time to time, defendant had L.V. touch defendant's penis. When L.V. was eight years old, defendant began having sexual intercourse with her. On some occasions, defendant forced L.V. to engage in sexual relations with one of her brothers, who is four years younger than L.V. Defendant usually assaulted his daughter at night while N.V. was at work. Defendant threatened L.V. that if she told anyone, he would kill her, her family, and her cats. Defendant ended the incest in 1990 when L.V. was ten years old. In 1988 or 1989, Marilyn Peterson (Peterson) and her husband visited defendant and his family. Peterson testified that, while the Petersons, defendant, and L.V. were in the living room, she noticed L.V. rubbing defendant's shoulder. Defendant then placed L.V. on his lap and started "stroking" the outside of her thigh in what appeared to be a "sexual way." In January 1992, N.V. obtained a temporary restraining order (TRO) against defendant for reasons unrelated to the alleged sexual misconduct. When L.V. learned that her mother had applied to have the TRO dismissed, L.V. became extremely upset. Her mother found L.V. staring into space, unable to speak, with her body "clenched." Shortly thereafter, L.V. was admitted for nine weeks to Riverview 147 and Fair Oaks Hospitals, where she was treated for anorexia and bulimia. While hospitalized at Fair Oaks, another girl confided in L.V. that she had been raped. Later that evening, L.V. told the girl about defendant's sexual attacks upon her. At the girl's advice, L.V. informed a nurse that her father had sexually assaulted her. On or about February 14, 1992, the Division of Youth and Family Services (DYFS) was notified; it informed N.V. Defendant was arrested on February 20, 1992. When N.V. asked L.J.V. whether she also had been sexually assaulted by defendant, L.J.V. responded affirmatively. Before L.J.V. testified, the trial court conducted a hearing pursuant to N.J.R.E. 104(a) to determine the admissibility of other crimes or uncharged misconduct evidence to be presented by L.J.V. The trial court concluded that L.J.V.'s testimony was admissible on the issues of intent and the absence of accident or mistake. The trial court concluded that although the sexual misconduct against L.J.V. occurred when she was very young and six years prior to the alleged acts against L.V., the behavior was similar to that which defendant was alleged to have done to L.V. The trial court found the proffered testimony by L.J.V. more probative than prejudicial. L.J.V. was twenty-five years old when she testified at trial in April 1996. She testified that defendant sexually abused her from the age of four to the age of eight, which was between 1975 and 1979. When she was six years old, defendant began having sexual intercourse with her daily. The assaults occurred at night while N.V. was at work or otherwise out of the house. Defendant told L.J.V. not to tell and warned her that if she did, he would hurt N.V. Defendant testified and denied the charges, asserting that they had been fabricated. He testified that he "got in a scuffle about my girlfriend" with L.J.V. and N.V. on January 14, 1992, and a TRO was obtained as a result. He claimed that L.V. made up the charges against him because she was jealous and hurt that he had left the family for a girlfriend. He stated that the incident witnessed by Peterson was simply an attempt by him to apply rubbing alcohol to a scratch on L.V.'s leg. Finally, defendant testified that N.V. was at home and not working during the time when L.V. alleged that he sexually assaulted her. As noted previously, the jury convicted defendant on all charges. The Appellate Division, however, found that the other-crime evidence was more prejudicial than probative, that insufficient grounds existed for the trial court to hold otherwise, and that the trial court had erred in relying on State v. Oliver, 133 N.J. 141, 627 A.2d 144 (1993), to admit the other-crime evidence. The Appellate Division concluded that the other-crime evidence was not admissible to show the absence of accident or mistake because defendant did not "claim[ ] that he was merely being affectionate towards his daughter and showing her fatherly love." The panel also found that the other-crime evidence was not admissible to show intent because there was no "material factual dispute with regard to whether [defendant] was seeking sexual gratification." The panel determined that the prosecution offered L.J.V.'s testimony "for no reason other than to demonstrate that defendant was predisposed to engaging in sexual conduct with his daughters in their prepubescent years." The Court granted the State's petition for certification. 157 N.J. 645, 725 A.2d 1126 (1999). II. A. The State argues that the trial court applied the correct standard when it decided to admit the other-crime evidence and that the Appellate Division exceeded the proper scope of appellate review of the trial court's determination. The State also 148 argues that the Appellate Division unfairly imposed on it "the burden to accurately anticipate a defendant's defense before use of other crimes evidence under N.J.R.E. 404(b) may be permitted." Finally, the State contends that even if the other-crime evidence was inadmissible, that error was harmless given the quantity and quality of the other evidence establishing defendant's guilt. B. First, I focus on the charges for which defendant was on trial to determine what evidence was relevant to establish the elements of the offenses. Generally, relevant evidence "means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Here, circumstantial evidence was presented by L.J.V. to prove the absence of accident or mistake and to infer that the alleged touchings of L.V.'s intimate parts were for defendant's gratification. Circumstantial evidence, if relevant, will be admissible. Circumstantial evidence, however, may be "`so unrevealing as to be irrelevant.'" State v. Allison, 208 N.J.Super. 9, 17, 504 A.2d 1184 (App.Div.1985) (citation omitted). Defendant was tried for first-degree aggravated sexual assault upon L.V., occurring on various dates between January 12, 1985 and January 12, 1990, by having vaginal intercourse with her while she was less than thirteen years old. "An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person [and] ... [t]he victim is less than 13 years old." N.J.S.A. 2C:14-2a(1). The mental culpability for this offense requires the actor to act knowingly. N.J.S.A. 2C:2-2c(3); State v. Zeidell, 154 N.J. 417, 428, 713 A.2d 401 (1998), see also State v. Rovito, 99 N.J. 581, 586, 494 A.2d 309 (1985). A person acts knowingly if he or she is aware of the nature of his or her conduct. N.J.S.A. 2C:2-2b(2). Defendant never asserted that the alleged vaginal intercourse with L.V. was either accidental or mistaken. Rather, he contended that he did not engage in the conduct. Defendant also was tried for committing sexual assault upon L.V. on various dates between January 12, 1985 and January 12, 1990 while the victim was less than thirteen years old. "An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim." N.J.S.A. 2C:14-2b. Here, "`[s]exual contact' means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C: 14-1d. "`Intimate parts' means ... sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." N.J.S.A. 2C:14-1e. To prove sexual assault, the State was obligated to demonstrate that L.V. was less than thirteen years old and that defendant touched her with the purpose or intent to degrade or humiliate L.V. or to sexually arouse or gratify himself. Defendant was also charged with endangering the welfare of L.V. by engaging in the same sexual misconduct with her that formed the basis of the other counts. The other-crime evidence was not offered to sustain the charges of endangerment or terroristic threats. Consequently, I will restrict my analysis to whether other-crime evidence should have been introduced to establish a relevant disputed fact under the charges of aggravated sexual assault and sexual assault. III. At the time of defendant's trial in April 1996, the admissibility of other-crime evidence was governed by N.J.R.E. 404(b), which states: Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that 149 he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. [N.J.R.E. 404(b) ]. That rule makes it clear that other-crime evidence is admissible only if relevant to prove some other disputed fact genuinely at issue in the case. See generally State v. Marrero, 148 N.J. 469, 482, 691 A.2d 293 (1997); State v. Oliver, 133 N.J. 141, 627 A.2d 144 (1993); State v. Stevens, 115 N.J. 289, 300, 558 A.2d 833 (1989). "Where the other-crime evidence tends to make the existence of a material fact reasonably likely, [the other-crime evidence] is admissible subject to the `probativeness/prejudice' balancing under ... N.J.R.E. 403." Marrero, supra, 148 N.J. at 482, 691 A.2d 293. In other words, relevant evidence may be excluded pursuant to N.J.R.E. 403, which provides: Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence. [N.J.R.E. 403]. Over the years, a four-part test has evolved for making the determinations required by N.J.R.E. 403(a) and 404(b). The test is as follows: 1. The evidence of the other crime must be admissible as relevant to a material issue; 2. It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338, 605 A.2d 230 (1992) (internal citations omitted) ]. Relevancy is the hallmark of admissibility of evidence. In determining whether evidence is relevant, the inquiry should focus on "the logical connection between the proffered evidence and a fact in issue." State v. Hutchins, 241 N.J.Super. 353, 358, 575 A.2d 35 (App.Div.1990). "If the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excludable by a rule of law." State v. Covell, 157 N.J. 554, 565, 725 A.2d 675 (1999). Relevant evidence can be both direct and circumstantial. Here, L.J.V. offered only circumstantial evidence. Consequently, "[r]elevance is the screen which permits the admission of evidence of similar identifiably associated conduct while screening out evidence of misconduct which has no relationship with the conduct on trial." State v. Gookins, 263 N.J.Super. 58, 63, 621 A.2d 968 (App.Div.1993), rev'd on other grounds, 135 N.J. 42, 637 A.2d 1255 (1994). A. Under the first part of the Cofield test, I disagree with the trial court that L.J.V.'s testimony was relevant to whether defendant had vaginal intercourse with L.V., or what his motive or intention was, given that the child was between eight and ten years old. Indeed, the proffered defense to the charge of aggravated sexual assault was a general denial and not that he accidentally or mistakenly raped his daughter. Furthermore, the first-degree aggravated sexual assault based upon defendant having sexual intercourse with his eight to ten year old daughter did not require the State to prove sexual gratification. N.J.S.A. 2C:14-2a. Yet, the jury was instructed that it could consider L.J.V.'s testimony as bearing "on defendant's motive for allegedly touching or performing sexual intercourse upon [L.V.], that is, to obtain some sort of sexual gratification. Or on the issue of his intention to touch her or 150 to have intercourse with her." Thus, the first prong of the Cofield test, requiring the other-crime evidence to be relevant, was not satisfied regarding the aggravated sexual assault. None of L.J.V.'s testimony was relevant to establish an element of that charge. However, as will be discussed later, L.J.V.'s testimony was relevant to the vendetta defense raised as part of defendant's general denial to all of the charges. Defendant also presented a general denial defense to the charge of sexual assault. The one possible exception was the single incident in 1988 or 1989 in which Peterson testified that she saw defendant stroking L.V.'s outer thigh in a "sexual way." Defendant's justification for that touching was that he was using rubbing alcohol to tend to a scratch of L.V.'s thigh. Although the defense to that event was neither accident nor mistake, but that the touching was for medicinal purposes, L.J.V.'s testimony was not relevant to any material issue related to the Peterson episode because that touching did not involve an intimate part of the body. N.J.S.A. 2C:14-1e. Because the Peterson episode did not involve an intimate part, defendant's intent or motive for that touching was not relevant. Nonetheless, L.J.V.'s testimony was relevant to the other episodes of alleged sexual assault because one of the statutory elements of that offense required the State to prove the touching of L.V.'s intimate parts was for the purpose of degrading or humiliating the victim or for defendant's sexual arousal or sexual gratification. N.J.S.A. 2C:14-1d. Despite defendant's denial that he touched L.V.'s intimate parts, the State was required to prove both their occurrence and the unlawfulness of the touchings. Stevens, supra, 115 N.J. at 307, 558 A.2d 833. The jury was instructed that L.J.V.'s testimony could be used to draw an inference that the touching of L.V.'s intimate parts was unlawful as required by N.J.S.A. 2C:14-1d. B. The second prong of the Cofield test, requiring the other-crime evidence be similar in kind and reasonably close in time to the indicted offense of sexual assault, is satisfied. The incidents involving the two children are similar. L.J.V. testified that her father sexually assaulted her between the ages of four and ten and that he had sexual intercourse with her daily after she became six. The incidents with L.V. are alleged to have occurred at about the same age. I am also satisfied that the temporal requirement is met. The incidents with L.J.V. were about six years before the alleged sexual misconduct started with L.V. See State v. Hasher, 246 N.J.Super. 495, 498-99, 587 A.2d 1341 (Law Div. 1991) (finding six year difference between incidents not too remote). The temporal requirement is intended to enhance credibility. However, the nature of the crime is as important as the passage of time in evaluating credibility. State v. Sands, 76 N.J. 127, 144-45, 386 A.2d 378 (1978); see also Covell, supra, 157 N.J. at 569, 725 A.2d 675. The second prong of the Cofield test, will of necessity, make the other-crime evidence similar to proof of propensity. Hence, the Court has recognized that because of this admissibility requirement, other-crime evidence is almost always prejudicial. State v. G.S., 145 N.J. 460, 468, 678 A.2d 1092 (1996). C. Part three of the Cofield test requires that the other-crime evidence be clear and convincing. This factor requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong. Burbridge v. Paschal, 239 N.J.Super., 139, 155, 570 A.2d 1250 (App.Div.), certif. denied, 122 N.J. 360, 585 A.2d 369 (1990). The State has the burden to prove the defendant's responsibility for the prior offense by clear and convincing proof. State v. Harvey, 121 N.J. 407, 433, 581 A.2d 483 (1990). 151 The trial court noted that L.J.V.'s "recollection obviously has to be clouded because of the time lapse and the age of the alleged victim at that time," but nonetheless concluded that "the basic story sounds believable and I will not exclude the testimony on the grounds that it was not clear and convincing." Given the trial court's unique opportunity to assess L.J.V.'s credibility, that finding was not an abuse of discretion. D. The fourth prong of Cofield required the trial court to balance the probative value of L.J.V.'s testimony against its prejudicial impact as required by N.J.R.E. 403. Marrero, supra, 148 N.J. at 482, 691 A.2d 293. Because of the damaging nature of L.J.V.'s testimony, the trial court was obligated to "consider ... whether its proffered use in the case can adequately be served by other evidence." Stevens, supra, 115 N.J. at 303, 558 A.2d 833. In other words, under the fourth prong of the Cofield test, the availability of other, less-inflammatory evidence to prove a fact genuinely in issue is "[a]n important factor in weighing the probative value of other-crime evidence." Oliver, supra, 133 N.J. at 151, 627 A.2d 144. "Probative value is enhanced by the absence of any other evidence that can prove the same point." Covell, supra, 157 N.J. at 569, 725 A.2d 675. In addition, evidence of motive or intent "require[s] a very strong showing of prejudice to justify exclusion." Id. at 570, 725 A.2d 675. As I noted previously, to prove the tender-years sexual assaults against defendant, the State had to prove that defendant touched one or more of L.V.'s intimate parts for one of four purposes: "either degrading or humiliating [L.V.], or sexually arousing or sexually gratifying the defendant-actor." Zeidell, supra, 154 N.J. at 428, 713 A.2d 401. The trial court informed the jury that although defendant denied touching his daughter in a sexual way, the State nonetheless had to prove that defendant not only touched L.V.'s intimate parts, but also that his intention or motive was for his sexual gratification. Without proof of defendant's intention or motive, the jury could have concluded that the touching was accidental or was consistent with fatherly touchings as opposed to sexual gratification. Without L.J.V.'s testimony that defendant also touched her intimate parts when she was about the same age as L.V., the State would have been without those essential proofs. I am persuaded that because the State could not produce a sufficient quantity of quality less-inflammatory evidence regarding defendant's motive or intention, a genuinely disputed fact in the case, the probative value of the other-crime evidence is enhanced. For two years before the penetrations began, the State alleged that defendant committed sexual assaults upon L.V. Therefore, when L.V. was between the ages of six and eight, there was no penetration from which intent or motive could be inferred. The threats to harm L.V., her family and pets were made, and the Peterson episode occurred, after the penetrations began and cannot be used to infer intent during the prior two years. Although L.V. testified that defendant assaulted her over a period of time, defendant attacked her credibility and asserted a vendetta defense. Consequently, the trial court did not abuse its discretion when it determined that the showing of prejudice had not risen to the level that required exclusion of the other-crime evidence regarding defendant's motive or intention. The trial court made a discretionary ruling. This is a case in which reasonable minds might differ concerning whether to admit the other-crime evidence. When "reasonable minds can and [do] differ about [a N.J.R.E. 404(b)] decision to admit other-crime evidence based on the probative-prejudicial balancing test," State v. Stevens, supra, 115 N.J. at 303, 558 A.2d 833, our law requires that the trial court's ruling be accorded deference. Marrero, 152 supra, 148 N.J. at 483, 691 A.2d 293. Because I find that the trial court's decision regarding the admissibility of the other-crime evidence was determined after making a proper contextual evaluation of the probative and prejudicial impact of that evidence, I conclude that the fourth prong of the Cofield test was satisfied regarding the charge of sexual assault. IV. In view of my conclusion that the trial court properly admitted other-crime evidence that was relevant to defendant's intent and motive when he had sexual contact with L.V. regarding the sexual assault charges, I must now determine whether the trial court's jury instruction limiting the use of that evidence constitutes plain error. The court was obligated to properly instruct the jury and "`to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" Cofield, supra, 127 N.J. at 341, 605 A.2d 230 (citation omitted). Regarding the sexual assault charge, the trial court explained both how that evidence could and could not be used as follows: Now, ladies and gentlemen, you heard testimony from [L.J.V.] that she was sexually assaulted by the defendant between 1975 and 1979. As you know, [G.V.] is not on trial for this offense. And normally our Rules of Evidence would prohibit such evidence. This evidence was submitted to you for a very limited purpose which I will explain shortly. First let me tell you what the evidence was not submitted for and how you cannot use it. This evidence was not submitted to you to show that the defendant is a bad person or has a disposition which shows he is likely to have committed the crimes which he is charged in this indictment for. Similarly, this evidence was not submitted to you to show a general disposition of the defendant to commit bad acts. This is not the purpose of allowing such testimony and it should not be considered by you as such. The Rules of Evidence do, however, permit such testimony where such evidence relates to some other fact in issue in the case, such as the absence of mistake or accident in the touching, or the intent of the defendant in the touching. Here the evidence was admitted as it may bear on the issue of whether the alleged touching of [L.V.] was accidental or by mistake. Likewise, it may also bear on the defendant's motive for allegedly touching or performing sexual [intercourse] upon [L.V.], that is, to obtain some sort of sexual gratification. Or on the issue of his intention to touch her or to have intercourse with her. Whether or not such testimony does or does not in fact bear on those issues in this case is for you and you alone to decide. If you decide that such testimony was not credible or does not bear on any of those issues in this case, you should disregard the testimony as not being helpful to you. If you find the testimony to be credible and bearing on one or more of those issues I just mentioned, you may consider the testimony in that respect. It is for you and you alone to decide how to use that testimony in that framework. Thus, the jury charge included both the anti-propensity instruction and an instruction that the evidence could not be used to conclude that defendant was a bad person, while also informing the jury that the evidence could be used to show motive, intent, or lack of accident or mistake regarding the sexual assault. There was still another purpose for which the jury could have used the other-crime evidence. That additional purpose was undoubtedly overlooked because the 153 trial court conducted the N.J.R.E. 104 hearing and made its ruling regarding other-crime evidence prior to trial. The court did not know at that time that defendant intended to offer a vendetta defense, claiming that L.V. and L.J.V. were out to get him because he had separated from their mother and had a girlfriend. The trial court was never asked, and therefore never decided, whether L.J.V.'s testimony was admissible to rebut the vendetta defense. In State v. G.S., supra, 145 N.J. at 475, 678 A.2d 1092, this Court held that other-crime or bad-conduct evidence is admissible to rebut a vendetta defense. There, defendant asserted that his teenage stepdaughter had manufactured stories of molestation in an effort to have him removed from the house. Ibid. The other-crime evidence was admitted to demonstrate that the victim's mother had not believed the victim when she asserted that G.S. had sexually assaulted her before. The fact that G.S. involved a prior crime with the same victim and the present case involves two sisters is not a distinction that should preclude application of the same rule of law. Oliver, supra, 133 N.J. at 153, 627 A.2d 144, held that other-crime evidence was admissible to prove the feasibility of the defendant committing a sexual assault while other people were in the home and the defendant's use of pretext to lure victims into his room. Thus, both G.S. and Oliver are cases in which other-crime evidence was used for purposes other than those enumerated in N.J.R.E. 404(b). I conclude, therefore, that L.J.V.'s testimony was admissible on the issues of L.V.'s credibility and whether there was a vendetta against defendant. Two members in the majority agree that the other-crime evidence can be used to rebut a vendetta defense in a retrial. Infra at 278-79, 744 A.2d at 152-53. Justice Long's opinion, arguing for the exclusion of the evidence on retrial, does not discuss State v. G.S. or State v. Oliver. Finally, I must address whether the trial court's instruction that permitted the jury to use the other-crime evidence for an irrelevant purpose under the aggravated sexual assault charge resulted in prejudice to defendant. The issue arises as plain error because there was no objection to the court's jury instruction regarding the use of other-crime evidence. R. 2:10-2; R. 1:7-2. Plain error requires a reversal if it is "clearly capable of producing an unjust result." R. 2:10-2. "[T]he test to apply is whether the possibility of injustice is `sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. G.S., supra, 145 N.J. at 473, 678 A.2d 1092 (quoting State v. Macon, 57 N.J. 325, 336, 273 A.2d 1 (1971)). In other words, the error complained of must have the clear capacity to bring about an unjust result. State v. Jordan, 147 N.J. 409, 422, 688 A.2d 97 (1997). My examination of the record persuades me that the jury charge that permitted the use of the other-crime evidence to show intent or motive for having sexual intercourse with L.V. did not create a real possibility that the jury reached the wrong result or significantly added to the likelihood that defendant would be found guilty of aggravated sexual assault. Motive, intent, and sexual gratification were not relevant to that charge. The jury also was instructed that it should disregard the other-crime evidence if it found the evidence was not probative of defendant's intent or motive for touching L.V. or having sexual intercourse with her. If the jury believed that defendant had sexual intercourse with his eight-year-old daughter, the evidence of guilt was overwhelming. There was no claim that the alleged sexual intercourse was not knowing. I am satisfied, therefore, that the instruction that permitted the jury to consider the other-crime evidence regarding intent, motive, mistake, accident or sexual gratification under the aggravated sexual assault charge was harmless. *154 There is an additional reason why the erroneous jury instruction was harmless error. As I stated previously, and two members in the majority agree, infra at 278-79, 744 A.2d at 152-53, the other-crime evidence was relevant to rebut the vendetta defense. Because that evidence was admissible for that purpose, the fact that the jury was not instructed that it could be used for that additional purpose did not prejudice defendant. The jury was instructed that the other-crime evidence could not be used to show defendant is a bad person or has the predisposition to commit crimes in general or the crimes charged in the indictment. That instruction sufficiently precluded the jury from misusing that evidence. If anything, the lack of such an instruction benefitted defendant because the jury was not informed that the evidence could be used in another way to assist the State with its burden of proof. Because the other-crime evidence would be admissible to rebut the vendetta defense in the event of a new trial, see R.S. v. Knighton, 125 N.J. 79, 97, 592 A.2d 1157 (1991) (suggesting a new trial should not be ordered if the same evidence would be admissible on retrial); State v. Bethune, 121 N.J. 137, 146, 578 A.2d 364 (1990) (same), the erroneous jury instruction that permitted L.J.V.'s testimony to be used to determine defendant's motive, intent, and purpose for having sexual intercourse with his eight-year-old daughter lacked the capacity to bring about an unjust verdict. I would reverse the judgment of the Appellate Division and remand the case to that court to decide the other issues raised that have not been decided. Because the majority has ordered a new trial, I concur with Justices O'Hern and Stein that the other-crime evidence is admissible in a new trial to rebut a vendetta defense, if raised. Justices GARIBALDI and VERNIERO join in this opinion. For affirmance and remandment Chief Justice PORITZ and Justices O'HERN, STEIN and LONG4. For reversal and remandmentJustices GARIBALDI, COLEMAN and VERNIERO3.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264364/	744 A.2d 233 (2000) STATE in the Interest of K.O., Juvenile-Respondent. Superior Court of New Jersey, Appellate Division. Argued November 30, 1999. Decided January 31, 2000. 234 Catherine M. Brown, Morristown, for appellants J.O. and K.O.[1] Alyssa Aiello, Assistant Deputy Public Defender, for juvenile respondent (Ivelisse Torres, Public Defender, attorney; Ms. Aiello, on the brief). Pamela Adams Doughterty, Assistant Prosecutor, for respondent State of New Jersey (John B. Dangler, Morris County Prosecutor, attorney; Angela M. Rich, Assistant Prosecutor, on the brief). 235 Before Judges SKILLMAN, D'ANNUNZIO and NEWMAN. The opinion of the court was delivered by NEWMAN, J.A.D. J.O. and K.O., the parents of K.O. (hereinafter referred to as "the parents"), appeal from the orders of September 3 and 14, 1999, extending K.O.'s term of probation entered by the Family Court judge arising out of a juvenile delinquency adjudication. The parents also appeal from paragraph three of the order of August 6, 1999, requiring the parents "to contact Jennifer Smedburg at [Juvenile Evaluation and Treatment Services (JETS) ] to arrange for whatever meetings or counseling is recommended as a first step toward joint counseling sessions and ultimate reunification." We affirm. The history leading up to the entry of the orders being appealed from is lengthy, but is necessary to place the issues raised in context. In May 1998, K.O., a fifteen-year-old juvenile, was arrested and charged with possession of heroin. On August 19, 1998, K.O. appeared before Judge Friend and pled guilty to the charge. She was adjudicated delinquent and placed on probation for one year. The following "conditions of disposition" were also ordered: house arrest; obey custodian; attend school daily; obtain part-time employment; no association with co-defendant; driver's license suspended for six months upon turning seventeen; perform forty hours of community service; pay a $1000 DEDR penalty and a $30 VCCB penalty; and complete JETS evaluation and follow recommendations. On October 12, 1998, JETS evaluated K.O. and recommended that she continue drug treatment, submit to weekly urinalysis, and that her parents become involved in her treatment. On February 7, 1999, K.O. attempted to sneak out of her home with the aid of a friend who provided a ladder for K.O. to use. When K.O.'s father went to investigate, he found her bedroom door to be locked. According to K.O.'s father, when K.O. refused to unlock the door, he forced the door open, and the door struck K.O., giving her a bruise to the eye and a bloody nose. According to K.O., however, her father broke through the locked door and "smashed her head against the wall and floor, causing a blackened eye and [a] bloody nose." On February 16, 1999, a student counselor at K.O.'s high school noticed the bruise on K.O.'s eye and told K.O. to contact the Department of Youth and Family Services (DYFS). Although DYFS could not substantiate K.O.'s claim of abuse, it found that "the risk of violence in the home between father and [K.O.] is high." DYFS recommended that K.O. be placed in a shelter "for her own protection" and that she be evaluated by JETS. K.O. did not return home on February 16, 1999, and, with the consent of her mother, spent the following night at a friend's house. According to DYFS, K.O.'s family refused to allow her back into the home, and K.O. refused to return home. On February 22, 1999, K.O.'s probation officer filed a complaint alleging that K.O. had violated her probation by failing to attend several classes at her vocational school and by remaining away from home on February 16, 1999. K.O. pled not guilty to this alleged violation of probation. The court remanded K.O. to a local shelter and ordered another JETS evaluation. The court also stated that K.O. and her parents were to "cooperate with any and all therapy ordered." After evaluating K.O., JETS recommended that K.O. participate in weekly outpatient therapy; that the caregiver with whom K.O. is placed attend counseling with K.O.; that K.O. enter into a home contract with her future caregiver; and that the court address K.O.'s parents' refusal 236 to provide consent for medical treatment of K.O. On March 18, 1999, a review was conducted before Judge Susan Scott, discussing possible placement for K.O. K.O.'s assigned attorney from the Public Defender's Office indicated that there were a number of concerns regarding K.O.'s parents; namely, they did not participate in K.O.'s JETS evaluation, they refused to sign consents for emergency medical treatment of K.O. or for K.O. to attend any therapy, and they refused to assume financial responsibility for K.O. On April 26, 1999, K.O. appeared before Judge Scott and pled guilty to violating her probation by failing to attend several classes at her vocational school and by remaining away from home on February 16, 1999. K.O.'s probation was continued, and she was released to the custody of P.A.W., the mother of one of K.O.'s friends. P.A.W. was present in court and indicated that she wished to take custody of K.O. She was approved by DYFS, the prosecutor, the court, and K.O. The court ordered that K.O. cooperate with the terms of the home contract prepared by her youth shelter counselor and that she follow the recommendations of JETS. K.O.'s parents were not present at the hearing despite the fact that they were notified that they had to be present. K.O.'s attorney stated that K.O.'s parents "have basically refused to be involved." A bench warrant was issued for K.O.'s parents to be executed on April 26 or 27, 1999 or May 5, 1999 and thereafter, and only during court hours. On May 5, 1999, K.O. and her attorney and K.O.'s mother appeared before Judge Scott. The judge indicated that the reason for the appearance was "there were numerous prior proceedings in which the parents were required to attend and they did not attend; and at the last review, a request was made for an arrest warrant in order to get the parents to appear." Initially, K.O.'s mother stated that she had not appeared on prior occasions because, although she had received a letter from K.O.'s probation officer, she had never received any "summons" to appear in court. When asked again why she had not "been involved with any of the reviews or the proceedings involving [K.O.,]" K.O.'s mother responded: Because [K.O. is] looking to get herself out of the house. [K.O. is] running around crazy.... I mean, I just want her to wake up. I don't want to go through any more therapy. I've had therapies [sic]. I've had psychologists. I've had psychiatrists. She needs to have something put in her face that she has to grow up now. The judge answered that "it's very hard for juveniles to get back on the right track without parental cooperation." Judge Scott told K.O.'s mother that, as natural parents, she and her husband have an "obligation" to be involved. The judge stated further that K.O. "will remain in the custody of [P.A.W.], as long as she consents and as long as that's working out, unless and until [her parents] make an application" objecting to K.O.'s placement. Judge Scott continued: [If] you have reason to think [K.O. is] better someplace else, then present the court with whatever information, then we'd have a hearing and review that. But without the parents' participation and cooperation, the Division of Youth and Family Services and the various other agencies involved make investigations and do what they think is best for the child. It's without parental input. They have to go with what their investigation suggests. K.O.'s mother was released upon the condition that she attend all future court hearings and provide any requested information. Upon K.O.'s mother's suggestion, the court requested that DYFS follow up on the possible placement of K.O. with her aunt. Judge Scott concluded the proceedings by telling K.O.'s mother, "The problem is, when you bring children into the 237 world, that even if they're a problem, you can't just wash your hands. You [have] got to try to cooperate with all [of] the support agencies and see it through." On May 12, 1999, K.O.'s father was brought before Judge Scott. He was told that his presence was required at any court review involving K.O., and he agreed to be present at any future hearing. On June 22, 1999, the parents moved for a modification of the court's order of April 26, 1999, requesting, among other things, that K.O. be placed back in their home and that her probation be extended. On July 23, 1999, the parties appeared before Judge Scott. The judge denied, without prejudice, the parents' request and ordered that the parents participate in counseling with a view toward family reunification. Judge Scott stated that she would not order that K.O. be placed back with her parents against the recommendation of a professional who was dealing with K.O. who thought that was not in K.O.'s best interest at that time. The judge said that "[t]he goal is reunification [,]" and that the judge needed "more than a court application from the parents in light of the history of this matter to convince [her] that it's in the best interests of the child to bounce her back at this point." The judge continued: [T]he fact that [K.O.'s parents] are interested and want to get involved certainly is a major first step, and I think that the counseling and working toward some reunification is the major second step, and I'm certainly going to provide for that. The parents argued that "the State's ability to regulate or interfere with [the family] relationship is limited and coupled with an even greater adherence to procedural due process." Judge Scott disagreed, stating that the overriding consideration was the best interests of the child. The parents immediately requested a stay of the judge's order. The judge denied their request, stating that a stay of the order would result in an immediate transfer of custody because the judge's order "is just keeping things the way they are." On August 6, 1999, the parents moved for reconsideration of the court's order denying their motion to change K.O.'s placement. The parents argued that, since K.O. had been placed with P.A.W., she was absent from school six days, late twelve days, and under disciplinary detention another four or five days. Judge Scott decided that, on the basis of what was presented to her, she did not "see anything that warrant[ed] removal from the current situation...." The judge stressed that her decision did not mean that K.O.'s current custodial situation would be indefinite. The judge also required that an investigation be made regarding conflicting absentee records previously presented to the court. The order denying the parents' application was entered on August 6, 1999. Paragraph three of the order required that the parents "contact Jennifer Smedburg at JETS to arrange for whatever meetings or counseling is recommended as a first step toward joint counseling sessions and ultimate reunification[.]" On September 3, 1999, the parties again appeared before Judge Scott. The parents objected to extending K.O.'s probation until her fines were paid off. K.O. herself had consented with the advice of counsel to the extension of probation. The parents contended that, under N.J.S.A. 2A:4A-47c, upon the termination of an order of disposition, "the balance of the fine can be reduced to a judgment recorded as a priority lien." The parents also challenged the court's retention of jurisdiction, arguing that the disposition order, entered on August 19, 1998, for a one-year probationary term, "terminated by its terms because the probation term was never extended during the probation period." Judge Scott indicated that it was her understanding that the disposition order required that certain conditions be met. Because those conditions had not been 238 met, the judge considered the court to have two options; namely, finding the juvenile in violation of probation and imposing the necessary penalties or extending the probationary term. The judge explained that, in cases like this one, in which the juvenile is working with the system, probation chooses to "give her a break and do what's best for everybody and extend the probation." The parents countered that, while that "may be the practice in Morris County," such was not provided for in the statute. By an order dated September 3, 1999, Judge Scott modified the original disposition order and extended K.O.'s probation to August 28, 2000, her eighteenth birthday, or until fines were paid in full. On September 9, 1999, after paying K.O.'s fines, the parents moved for a termination of K.O.'s probation before Judge Scott. The judge spoke at length with K.O. to determine what K.O. thought was in her best interests, staying with P.A.W. or returning home. K.O. questioned her parents' motives behind paying her fines and indicated that she was doing "absolutely great" with P.A.W. K.O. did not think that returning home to live with her parents would "work." K.O. explained that she had not spoken to her parents or had much contact with any member of her family for some time. K.O. also stated that she wished to attend P.A.C.E., an alternative high school which is located within walking distance of P.A.W.'s house. Judge Scott stated, "I haven't seen anything from the parents which gives me any comfort that they are able to determine what the best interests of the child are and follow through." The judge retained jurisdiction, finding that the court had jurisdiction based on the "existing status and the lack of complete compliance with prior orders[.]" On appeal, the parents raise the following points for our consideration. POINT I ONCE THE PROBATION TERM IMPOSED BY THE ORIGINAL DISPOSITION ORDER IS SERVED, THE TRIAL COURT HAS NO JURISDICTION OVER THE ACTION, UNLESS A PROBATION VIOLATION COMPLAINT, FILED ON NOTICE TO THE PROSECUTOR DURING THE PROBATIONARY TERM, IS PENDING. POINT II MR. AND MRS. ["O"] WERE DENIED PROCEDURAL DUE PROCESS ONCE THE FOCUS OF THE DELINQUENCY PROCEEDING SHIFTED FROM THEIR DAUGHTER'S CONDUCT TO THEIR CONDUCT. We address the arguments in the order raised. I. The parents contend that the trial court was without jurisdiction to extend K.O.'s probation "after the probation term expired on August 19, 1999[.]" As an initial matter, K.O. argues that her parents do not have standing to challenge the court's order extending her probation. According to K.O., her parents "have failed to demonstrate that they were aggrieved by the lower court's order extending [her] probation." We disagree. Parents, as the guardians of their children, have standing to be heard. In D.Y.F.S. v. D.T., 171 N.J.Super. 520, 526, 410 A.2d 79 (J. & D.R. Ct.1979), the court recognized that "foster parents should have standing in court on matters affecting their foster children." We would not afford foster parents greater opportunity to be heard on matters relating to their foster children than we would biological parents on matters relating to their biological children. We, therefore, will address the parents' challenge to the continuation of their daughter's probation. In challenging the Family Court's jurisdiction, the parents argue that the court 239 lost jurisdiction once the probationary term of one year expired; the court could not extend the term of probation because it did not follow the guidelines set forth in N.J.S.A. 2A:4A-45; and the double jeopardy clauses of the state and federal constitutions prohibited the extension of K.O.'s probationary period because the extension was not based on a violation of probation. A. N.J.S.A. 2A:4A-47a provides that an order of disposition entered in a juvenile delinquency case "shall terminate when the juvenile who is the subject of the order attains the age of 18, or three years from the date of the order whichever is later unless such order ... is sooner terminated by its terms or by order of the court." The disposition order in this case was entered on August 19, 1998, and, by its terms, the length of the probationary term imposed was one year. With regard to jurisdiction, N.J.S.A. 2A:4A-45b provides: Except as provided for in subsection a., the court shall retain jurisdiction over any case in which it has entered a disposition under [2A:4A-43] and may at any time for the duration of that disposition, if after hearing, and notice to the prosecuting attorney, it finds violation of the conditions of the order of disposition, substitute any other disposition which it might have made originally. All parties agree that the disposition in this case was entered under N.J.S.A. 2A:4A-43. The parents argue, however, that, under N.J.S.A. 2A:4A-45, once the probationary term of one year expired, the court lost its jurisdiction. We disagree.[2] N.J.S.A. 2A:4A-43 provides an expansive array of dispositions for a juvenile adjudicated delinquent. In determining an appropriate disposition, the court had to weigh the following factors: (1) The nature and circumstances of the offense; (2) The degree of injury to persons or damage to property caused by the juvenile's offense; (3) The juvenile's age, previous record, prior social service received and out-of-home placement history; (4) Whether the disposition supports family strength, responsibility and unity and the well-being and physical safety of the juvenile; (5) Whether the disposition provides for reasonable participation by the child's parent, guardian, or custodian, provided, however, that the failure of a parent or parents to cooperate in the disposition shall not be weighed against the juvenile in arriving at an appropriate disposition; (6) Whether the disposition recognizes and treats unique physical, psychological and social characteristics and needs of the child; (7) Whether the disposition contributes to the developmental needs of the child, including the academic and social needs of the child where the child has mental retardation or learning disabilities; and (8) Any other circumstances related to the offense and the juvenile's social history as deemed appropriate by the court. [N.J.S.A. 2A:4A-43a.] It is obvious from the factors which the court must consider that the juvenile is not divorced from his or her family in formulating the appropriate disposition. To the contrary, the family is an integral part of the process. The goal of the juvenile law is to rehabilitate the delinquent. N.J.S.A. 2A:4A-21b. While the juvenile law seeks to "preserve 240 the unity of the family whenever possible[,]" N.J.S.A. 2A:4A-21a, it will not hesitate to separate juveniles from their own families when necessary for their safety. N.J.S.A. 2A:4A-21c. Because friction can develop between the juvenile and his or her own parents in this fragile period of adolescence, especially where drug use may be involved, the court is equipped with the widest array of dispositional tools to fulfill the goals set forth in the Code of Juvenile Justice. N.J.S.A. 2A:4A-21 and -43b. In response to the problems of K.O. and her parents, the court developed a comprehensive treatment plan designed to rehabilitate K.O. and reunite her with her family. Probation was a part of this plan, but was not the only element involved. Under N.J.S.A. 2A:4A-43b, the court may order one or more of twenty dispositions, including (3) Plac[ing] the juvenile on probation to the chief probation officer of the county or to any other suitable person who agrees to accept the duty of probation supervision for a period not to exceed three years upon such written conditions as the court deems will aid rehabilitation of the juvenile; (4) Transfer[ing] custody of the juvenile to any relative or other person determined by the court to be qualified to care for the juvenile; (14) Plac[ing] the juvenile in a suitable residential or nonresidential program for the treatment of alcohol or narcotic abuse, provided that the juvenile has been determined to be in need of such services; (15) Order[ing] the parent or guardian of the juvenile to participate in appropriate programs or services when the court has found either that such person's omission or conduct was a significant contributing factor towards the commission of the delinquent act, or, under its authority to enforce litigant's rights, that such person's omission or conduct has been a significant contributing factor towards the ineffective implementation of a court order previously entered in relation to the juvenile; (18) Order[ing] that the juvenile satisfy any other conditions related to the rehabilitation of the juvenile[.] The Family Court also has broad jurisdictional power over any disposition it imposes. N.J.S.A. 2A:4A-43 and -45. Under N.J.S.A. 2A:4A-24a, the Family Court has "exclusive jurisdiction in all cases where it is charged that a juvenile has committed an act of delinquency[.]" Such jurisdiction extends not only over the juvenile but also over his or her "parent, guardian, or any family member found by the court to be contributing to a juvenile-family crisis." N.J.S.A. 2A:4A-24a. Indeed, when K.O. pled guilty to violating her probation, the Family Court fashioned a rehabilitation treatment plan with a number of conditions, including: continued probation; release to P.A.W.; comply with home contract; and follow recommendation of JETS. JETS recommended that K.O. return to the drug counseling program at Group Therapy Alliance or, in the alternative, enroll in the aftercare program at Day Top Outreach. Moreover, K.O.'s placement with P.A.W. and participation in drug counseling were not enumerated as express conditions of probation. The order of April 26, 1999, does not include this placement and rehabilitative treatment alternative as conditions of probation as opposed to separate dispositions. Under N.J.S.A. 2A:4A-43b, the Family Court had the authority to order placement, compliance with a home contract, and participation in drug counseling as separate dispositions. The April 26, 1999 order contains a number of provisions which were not conditions of K.O.'s probation. The order also provided that DYFS remain in the case and that a bench warrant for K.O.'s parents be issued. 241 Thus, the placement of K.O. with P.A.W. was sufficient, without more, to enable the court to retain its jurisdiction, which was part of the adaptability of the Family Court to accommodate to the ebbs and flows of the juvenile's adjustment while under the court's jurisdiction. Even if the court did not extend the probation within the one-year period that was initially imposed, the court still retained its jurisdiction through the other dispositions that were very much in force and effect. Here, the court could have initially imposed a maximum term of probation until K.O. attained the age of eighteen, or three years from the date of the order whichever is later. N.J.S.A. 2A:4A-47a. Since the initial probation was for one year, the court still had the legal authority to impose an additional two years of probationary time upon an appropriate showing of cause or consent, which would run beyond the date upon which the juvenile became eighteen, August 28, 2000. Judge Scott, however, limited the period until the juvenile turned eighteen. B. The parents also contend that the court could not extend the term of probation because it did not hold a hearing and provide notice to the prosecuting attorney as set forth in N.J.S.A. 2A:4A-45b. The court was relieved of the obligation to do so because the juvenile consented with the advice of counsel to the extension of probation. It therefore would be unnecessary to follow the procedure laid out in N.J.S.A. 2A:4A-45b when the juvenile willingly agreed to continued monitoring under probation. Moreover, the extension of the probationary period was ancillary to the juvenile's placement outside of the family. The Family Court would be in a better position to track the juvenile's progress if probation was still in place while the juvenile was living outside of the family environment. The Family Court has an obligation to insure that a juvenile adjudicated delinquent will receive effective rehabilitation treatment, one of the primary goals of the Code. In re D.F., 138 N.J.Super. 383, 390, 351 A.2d 43 (J. & Dr. Ct.1975), certif. denied, 74 N.J. 260, 377 A.2d 665 (1977). In State v. S.T., 254 N.J.Super. 1, 4, 603 A.2d 39 (App.Div.1991), we held that the Family Part retains jurisdiction to impose sanctions for probation violations after the expiration of the jurisdictional period prescribed by N.J.S.A. 2A:4A-47. We said: [T]he interpretation of [N.J.S.A. 2A:4A-45] rendered by the Family Part judge leaves the court system powerless to insure compliance by juvenile offenders with the provisions or conditions of an order of disposition entered pursuant to the Code of Juvenile Justice where the juvenile is eighteen years of age and his term of probation is at or near its end. The Legislature could not have intended such an absurd result. [Ibid.] We then made reference to In re Smigelski, 30 N.J. 513, 521-22, 154 A.2d 1 (1959), in which the Court stressed: Our statutes make it clear that the Legislature did not intend the jurisdiction of the juvenile court to be terminated or turned off like a faucet the moment a person who has committed an offense attains his 18th birthday, or that that event would necessarily preclude the acquisition and exercise of jurisdiction thereafter. [S.T., supra, 254 N.J.Super. at 4, 603 A.2d 39.] If the court could exercise its jurisdiction over a juvenile more than eighteen years old, it certainly should not lose its jurisdiction over a juvenile who is under the age of eighteen. If, upon the expiration of the probationary term, the conditions of disposition have not been satisfied, and the juvenile is in need of continuing treatment or rehabilitation, it runs counter to the entire philosophy of the Family Court that the court would be without jurisdiction to help the juvenile 242 by extending her probation. We, therefore, conclude that the Family Court retained jurisdiction after the expiration of the probationary term to extend that probationary term with the consent of the juvenile for the purpose of insuring compliance with the conditions of its disposition order and to promote the rehabilitation of the juvenile. C. The parents argue that the double jeopardy clauses of the state and federal constitutions prohibit an extension of a probationary period not based on a violation of probation. The parents also recognize that their daughter consented with the advice of counsel to the extension of the probation. The challenge to their daughter's consent is meritless. While the parents may have standing to challenge the jurisdictional aspect of the extension of probation, they lack standing to raise the double jeopardy bar argument. See In re Quinlan, 70 N.J. 10, 34, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976) (stating that, generally, litigants may not assert the constitutional rights of another). II. The parents argue in Point II that, even if the court had jurisdiction, the orders of September 3 and 14, 1999, and paragraph three of the August 6, 1999 order, must be vacated because the focus of the delinquency proceeding improperly shifted from K.O.'s conduct to their conduct; they were denied fundamental due process; and the court improperly applied the best interests standard in the context of a delinquency matter. A. The parents assert that "once the basis for the court's orders was the conduct of the parents ... the parents were entitled to a hearing, after notice and other appropriate safeguards, before their child was removed from their custody." According to the parents, K.O. was placed in the custody of P.A.W. because of their conduct, and the court has continued that placement based on their conduct. The parents contend that the Legislature "has created several causes of action that authorize the removal of a child from a parent because of the parents conduct[,]" namely, "termination, abuse and neglect, and family and crisis." They maintain that the court should have afforded them the procedural safeguards "set forth in these causes of action[.]" The court, in placing K.O. in the custody of P.A.W. and in ordering that K.O. remain in P.A.W.'s custody, was not acting under any of these statutes. Rather, the court was acting pursuant to N.J.S.A. 2A:4A-43 of the Code of Juvenile Justice. That statute specifically authorizes the court to "[t]ransfer custody of the juvenile to any relative or other person determined by the court to be qualified to care for the juvenile[.]" N.J.S.A. 2A:4A-43b(4). Furthermore, to the extent that the parents rely on the criteria that must be met before parental rights may be terminated, this was not a proceeding to terminate parental rights. The termination of parental rights, in contrast to the loss of custody, permanently ends the relationship between biological parents and their children. In re Adoption of L.A.S., 134 N.J. 127, 132, 631 A.2d 928 (1993). In fact, the court's order of August 6, 1999, was crafted to promote reunification of parent and child, the exact opposite of termination of parental rights. B. The parents maintain that the court's April 26, 1999 order transferring custody to P.A.W. violated their constitutional rights to due process. They argue that the State failed to put them "on notice and afford them constitutionally adequate procedure before the placement occurred." The parents also argue that the court was not impartial in making its determinations. 243 They contend that "[t]he State's unfortunate misguided handling of K.O.'s probation supervision resulted in a gross violation of the [parents'] right to procedural due process." We find no basis to support the parents' arguments. The parents were given notice of the proceedings and told that they were required to attend. In order to insure their attendance at the proceedings and to hear their version of the events, the court issued bench warrants for their arrest, to be executed only during court hours. The parents' claim that they were denied the opportunity to be heard is moot. Since April 26, 1999, the parents have appeared at three hearings and had the opportunity to voice their objection to K.O.'s placement and request that K.O. be returned to their custody. Furthermore, the purported violation of the parents' due process rights by the April 26, 1999 order has no bearing on the August 6, 1999 order which is the subject of this appeal. C. The parents contend that the trial court "misapplied the best interests standard when ordering the continued placement of K.O. outside the family home." "When a court determines it likely that a juvenile has committed an offense, the juvenile is then subject to the parens patriae jurisdiction of the State." In re S.T., 273 N.J.Super. 436, 448, 642 A.2d 422 (App.Div.1994). This is evidenced by N.J.S.A. 2A:4A-24c, which states: "Juveniles who appear before the court in any capacity shall be deemed to be wards of the court and protected accordingly." "A court's disposition of a juvenile matter is meant to protect the juvenile," and this may be accomplished by separating the juvenile from his or her family environment when necessary for the juvenile's health, safety, or welfare. In re S.T., supra, 273 N.J.Super. at 448, 642 A.2d 422; N.J.S.A. 2A:4A-21c. Prior to the placement of K.O. in P.A.W.'s custody, DYFS had determined that "the risk of violence in the home between father and [K.O.] is high," and recommended that K.O. be placed in a shelter "for her own protection." Judge Scott considered the recommendation of a professional who was dealing with K.O. who thought that it was not in K.O.'s best interest to return home at that time. The judge also heard argument from the parents; spoke with K.O. personally; and inquired as to K.O.'s progress since her placement with P.A.W. Additionally, the record discloses that the parents refused to allow K.O. back into the home as of February 18, 1999; the parents refused to appear at hearings relating to K.O. and disputed court notice that their attendance was required; the parents made little or no attempt to contact K.O. when she was at the shelter or since she has been in P.A.W.'s custody; and the parents have not participated or made attempts to participate in court ordered counseling aimed at reunification. The Family Court has the authority to order the parent of a delinquent child to attend counseling. N.J.S.A. 2A:4A-43b(15). The imposition of family counseling was deemed to be in the best interest of K.O. As of August 6, 1999, the court did not have reason to believe that the immediate reunification of K.O.'s family was in K.O.'s best interest. In the time between DYFS's findings in February 1999 and the parent's July 23, 1999 motion for return of custody, nothing occurred to indicate that K.O.'s relationship with her parents had lost its volatility. The court had no reasonable basis to conclude on the record before it that the situation was ripe for family reunification. Lastly, while the parents appeal from paragraph three of the court's order of August 6, 1999, requiring them "to contact Jennifer Smedburg at JETS to arrange for whatever meetings or counseling is recommended," they have not presented an argument *244 why this order was in error other than to state that it is unenforceable. Pursuant to N.J.S.A. 2A:4A-43 the Family Court judge can require that parents or guardians participate in counseling, therapy, substantive abuse programs, "or any other reasonable programs designed to correct family dysfunction." State v. H.B., 259 N.J.Super. 603, 607, 614 A.2d 1081 (Ch.Div.1992) (citing N.J.S.A. 2A:4A-43b(4) and (15)). "In New Jersey the emphasis is on the family, rather than the juvenile, in developing a total rehabilitative plan." Ibid. The court acted within its power in ordering that K.O. and her parents attend counseling sessions. The court's express purpose in doing so was the ultimate reunification of K.O. and her parents, a goal for which the parents claim they are striving. Affirmed. NOTES [1] K.O. (appellant) is actually the mother of the juvenile K.O. [2] There is a reference in the record that Judge Scott was on vacation when the order extending probation was presented, and therefore, she was not available to sign the extension within the one-year probation period initially imposed. Because we are convinced of the court's jurisdiction on other grounds, we have not remanded to develop the record on this alternate ground.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264122/	33 Cal.App.4th 176 (1995) 39 Cal. Rptr.2d 119 In re ALICIA O., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Plaintiff and Respondent, v. BENNIE R. et al., Objectors and Appellants. Docket No. B075926. Court of Appeals of California, Second District, Division Four. March 16, 1995. 177 COUNSEL Janette Freeman Cochran and Jane Winer, under appointments by the Court of Appeal, for Objectors and Appellants. De Witt W. Clinton, County Counsel, Lori A. Fields and Jill Regal for Plaintiff and Respondent. [Opinion certified for partial publication.[]] OPINION WOOD (A.M.), P.J. Bennie and Lupe R. (appellants) appeal from an order terminating their legal guardianship over Alicia O. pursuant to Welfare and Institutions Code section 366.4.[1] Alicia, born on March 15, 1976, is mentally retarded and suffers from kyphoscoliosis (curvature of the spine) and cardiac defects. She is unable to speak except through a kind of sign language and has the mental age of a two-year-old child. A section 300 petition was first filed in her case in October 1976, alleging abandonment by her mother. Appellants, Mr. and Mrs. R., operated a licensed foster family home and specialized in the care of disabled children. Mrs. R. was active in various foster care groups. Alicia, who had been in long-term foster care from the time she was nine months old, was placed with appellants in November 178 1991. They sought and obtained legal guardianship of Alicia by order of the juvenile court on April 29, 1992. At that point, the juvenile court's dependency jurisdiction over Alicia was terminated. On June 10, 1992, the department of children's services (DCS) filed a new section 300 petition in which it was alleged that appellants had physically abused three other minors in their care, Willie H., William A. and Desmond G.[2] The petition further alleged that these acts put Alicia, then 16 years old, at risk. A detention hearing for Alicia was conducted on June 11, 1992. The court found that a prima facie case for detaining her had been made and she was removed from appellants' custody. The court appointed Dr. John Leonard, a child psychiatrist, to examine Alicia and also ordered DCS to prepare a social study. In addition, the court ordered DCS to commence family reunification services to Alicia and appellants. The court set Alicia's case for adjudication on July 7, 1992, along with adjudication of the petitions on Desmond G. and William A. At the July 7 hearing, the court ordered Alicia to remain detained but gave DCS discretion to release her to appellants and ordered a reevaluation of the foster home in which she had been placed. A report by Dr. Leonard, dated July 10, 1992, stated that Alicia had been physically examined and there was evidence of sexual abuse. Dr. Leonard concluded that she was at risk for sexual abuse and that the results of the physical examination mitigated against reunification. DCS investigative report, prepared by Karen Hokkanen, and dated July 21, 1992, presented statements detailing the alleged physical abuse by appellants of Desmond G. and William A. and referred to the physical examination of Alicia that revealed results consistent with "vaginal trauma/sexual abuse." Hokkanen recommended termination of appellants' guardianship over Alicia and permanent placement services for her. No reunification plan was specified in the report. The adjudication hearing was held on October 8, 1992. Appellants pleaded no contest to the amended petition, which alleged that they had inflicted "excessive physical punishment" on William A. and Desmond G. The minute order for that date shows that DCS was ordered to prepare a specific reunification plan for appellants and Alicia and gave DCS discretion to return her to appellants' custody. The matter was continued for the disposition hearing to November 25, 1992. 179 A second DCS report, prepared by Karen Hokkanen, and dated October 23, 1992, reported that Alicia was encopretic and that she "acted out" during a visit by appellants. She also reported that appellants had missed four visitations out of six. Attached to DCS report was a letter from Alicia's social worker, Philip Kunde, that stated she was receiving "excellent care" in the foster home to which she had been removed. Dr. Leonard also prepared a report, dated October 31, 1992, that contained an "addendum" to his earlier report regarding Alicia. He stated, based on an interview he conducted with appellants and the minors, including Alicia, that, while "nothing in this interview would indicate that [appellants] [are] anything but attentive guardians for Alicia.... Whether reunification is a viable plan for Alicia will depend on the outcome of the investigation of the [appellants'] home. Alicia's current foster mother called to tell me that Alicia's behavior had deteriorated following the interview. She had become agitated and unresponsive to usual forms of communications and her behaviors [sic] had become more active and inappropriate.... The foster mother also related that Alicia reacts with a similar form of disturbance following visits by Mrs. [R.]." Dr. Leonard stated that the interaction between appellants and the minors "was not warm" and concluded that "there is an indication that at some time all of these children have been abused." He recommended against reunification efforts. On October 30, 1992, DCS filed a petition for termination of appellants' guardianship over Alicia on the grounds that she "is severely developmentally delayed[,] has severe scoliosis and is encopretic. Legal guardians have physically abused other minors in the home. It is in minor's best interest to terminate the guardianship." At a hearing held on November 18, 1992, DCS took the position that, having filed a petition to terminate guardianship, there would be a recommendation of no reunification. Counsel for Mrs. R. replied, "Your Honor, neither the guardians nor the minors want termination of this guardianship.... You have ordered family reunification services [for] these parties. Nothing by the [DCS] has yet to be provided. Every bit of reunification has been done by [appellants]. They have gone to parenting and counseling. The [DCS] has done nothing. Today a detailed plan was due by the [DCS] outlining what the department was going to do for reunification. It is not here. They violated the court order. [Their] position now is that no reunification should be provided so they do not need to provide a report." The court ordered DCS to provide points and authorities stating its reasons for its recommendation of no reunification. The dispositional hearing commenced on November 25, 1992, as to Alicia, Desmond G. and William A., and continued on December 17, 1992, 180 February 4, 1993, February 25, 1993, February 26, 1993, and March 25, 1993. Prior to the March 25 hearing, DCS filed a document entitled "Points and Authorities re Guardianship," in which it argued that appellants were not entitled to reunification rights coextensive with those of biological parents. Appellants filed a counter-document in which they argued that reunification services were available to legal guardians. A total of 15 witnesses testified at the dispositional hearing and the court also received into evidence various reports including that of Dr. Leonard and Dr. Michael Ward, a clinical psychologist.[3] Dr. Ward's report, dated March 23, 1993, noted that Alicia "has now been out of [appellants'] home almost as long as she was in it," and while she had a "positive relationship to the [appellants], she also seems to have a positive relationship to most other people she interacts with." He concluded that if all things were equal, she should be returned to appellants but went on to state: "Whether or not all other factors are equal involves consideration of what this particular child needs and what [appellants] ... can provide her as opposed to some other foster home.... About all I can say is that assuming [appellants] can provide what she needs, there would not appear to be any strong reason to preclude placing her back in that home." Among the witnesses was Dr. Leonard, who testified that Alicia should not be reunited with appellants because of appellants' admission that they had inappropriately disciplined the other minors and what he perceived of as their lack of significant involvement with Alicia. He also testified that following visitation with appellants, Alicia's foster mother reported that she was more difficult to manage and less cooperative. Karen Hokkanen also testified against reunification for the reason stated in her report and because, in view of Alicia's limited verbal skills, "[s]he would in no way be able to call or seek help if something happened." Alicia's social worker, Philip Kunde, also testified that he would be uncomfortable with returning Alicia to appellants "with a sexually acting out boy also present" at appellants' home because Alicia is "nonverbal and ... at some point in her life ... she was sexually molested...." On April 5, 1993, the court made the following order: "The minor Alicia [O.] is declared a dependent of the court pursuant to section 300 subsections (A), (B), and (C) of the juvenile court file [sic]. The custody of the minor is taken from the parents and guardians [sic]. The minor is committed to the 181 care, custody and control of the Department of Children's Services for suitable placement as detailed in juvenile court dependency disposition minute order form. [¶] The court finds substantial danger exists to the physical and emotional safety of the minor and there remains no means to protect the minor without removal. [¶] Reasonable efforts have been made to eliminate the need for removal.... [¶] The [DCS] is to provide permanent placement services, long-term foster care for the minor. The court sets aside and terminates the guardianship and finds it is in the best interest of the minor that the guardianship be terminated and set aside and it would be detrimental to the minor that the guardianship remain in place." The court went on to say that while "there is no evidence that this minor was in any way abused by the [appellants], I believe that the best interests of the minor require that she not be moved at this time because the [foster] home appears to be very appropriate and the minor appears to be very vulnerable. She is not a person who can communicate her problems and due to her vulnerability and due to the very fine nature and excellent care of the foster home and the fact that [appellants] have admitted to inappropriate discipline of other minors in their care, I think it is in the best interest of the minor to remain in her present foster home" and terminate guardianship. It is from this order that appellants' appeal. We affirm. I Appellants contend that the court committed reversible error by denying them reunification services with Alicia to which they were entitled as her legal guardians under the statutes that govern section 300 dependency proceedings. (1) DCS maintains that appellants were not entitled to such services because the order terminating their guardianship was made pursuant to DCS's petition to terminate guardianship under section 366.3, subdivision (b) as to which reunification services were not required.[4] The record supports DCS's contention. Section 300 empowers the juvenile court to adjudge as a dependent child of the court any minor who comes within the descriptions set forth in that statute, which include a substantial risk that the minor will suffer physical harm either inflicted by a parent or guardian or as the result or failure of the 182 parent or guardian to supervise or protect the minor. (§ 300, subds. (a), (b).) "A section 300 dependency hearing is bifurcated to address two distinct issues. First, at the jurisdictional hearing, the court determines whether the child falls within any of the categories set forth in section 300. If so, the court may declare the minor a dependent child of the court. [Citation.] Then, at the dispositional hearing, the court must decide where the child will live while under its supervision, with the paramount concern being the child's best interest. [Citation.]" (In re Corey A. (1991) 227 Cal. App.3d 339, 345-346 [277 Cal. Rptr. 782], fn. omitted.) Prior to the dispositional hearing, the responsible probation officer must undertake a social study of the minor including matters relevant to disposition, including a recommendation for disposition. (§§ 280, 358, subd. (b), 358.1.) If the social study recommends removal of the minor from the home it "shall include... a recommended plan for reuniting the child with the family, including a plan for visitation" unless DCS alleges that any of the exceptions to reunification listed in section 361.5, subdivision (b) apply. (Cal. Rules of Court, rule 1455(a), italics added.) "The statutes and rules governing dependency actions clearly require that a family reunification plan be developed as a part of any dispositional order removing a child from its home. [Citation.]" (In re Dino E. (1992) 6 Cal. App.4th 1768, 1776-1777 [8 Cal. Rptr.2d 416].) The failure to provide reunification services is reversible error. (In re Daniel G. (1994) 25 Cal. App.4th 1205, 1215 [31 Cal. Rptr.2d 75]; In re John B. (1984) 159 Cal. App.3d 268, 274-275 [205 Cal. Rptr. 321].) In contrast to these procedures governing section 300 petitions, the procedure to terminate a guardianship does not mandate reunification efforts. Section 366.25 authorizes the appointment of a legal guardianship over a minor in a dependency proceeding. (§ 366.25, subds. (b), (e).) Where a guardian is appointed under these sections, dependency jurisdiction terminates but the court retains jurisdiction "over the minor as a ward of the guardianship" under section 366.3. That same section provides that a proceeding to terminate a legal guardianship may be brought in the juvenile court and, if granted, the court may resume dependency jurisdiction over the minor and order a new permanent plan from the appropriate agency. (§ 366.4.) The procedure to terminate a guardianship is set forth in the California Rules of Court. Rule 1465(c) requires that the petition be filed in the juvenile court. Rule 1432 specifies the contents of the petition, including "[a] concise statement of any change of circumstance or new evidence that requires changing the [original] order...." (Cal. Rules of Court, rule 1432(a)(6).) The court may grant the petition only where it "states a change 183 of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change...." (Cal. Rules of Court, rule 1432(c).) Where the termination is contested, the petitioner bears the burden of proof and must show "by clear and convincing evidence" that grounds exist for the removal of the child from his or her legal guardian. (Cal. Rules of Court, rule 1432(f).) There is no requirement for reunification services anywhere in this statutory scheme. Appellants' insistence that they were denied reunification services after the section 300 petition was filed ignores the fact that subsequent to the filing of that petition DCS determined reunification would not be beneficial to Alicia and filed a petition to terminate guardianship.[5] DCS filed the petition to terminate guardianship on October 30, 1992. DCS's attorney referred to that petition during the first day of the dispositional hearing on November 18, 1992, as the reason DCS was not recommending reunification. She stated, "I have filed a petition for termination of gardianship.... I would prepare P's and A's as to that issue because that is the Department's plan, no reunification." Further, DCS did file points and authorities in which it restated its position that reunification services were not required on a petition to terminate guardianship. There is no support for appellants' assertion that a separate hearing was required on the petition to terminate guardianship apart from the dispositional hearing that the court conducted not only on Alicia but also on William A. and Desmond G. The purpose of that hearing was to determine the best disposition for Alicia in view of appellants' admission that they had improperly disciplined the two boys. Whether characterized as a hearing on the section 300 petition or on the petition to terminate the guardianship, DCS was still required to prove by clear and convincing evidence that termination of the guardianship was in Alicia's best interest. (Cal. Rules of Court, rule 1432(f); § 361, subd. (b).) Finally, it is clear from the language used by the court in its oral order that it was acting on DCS's petition to terminate the guardianship because the 184 court used the best interest standard set forth in rule 1432 of the California Rules of Court. The court said: "The court sets aside and terminates the guardianship and finds it is in the best interest of the minor that the guardianship be terminated and set aside and it would be detrimental to the minor that the guardianship remain in place." The court could have, had it intended to deny that petition, returned Alicia to appellants and ordered reunification services as it did when making the dispositional order as to William A., whom it placed with appellants for a 60-day home visit with reunification services. In summary, we conclude that the court terminated appellants' legal guardianship over Alicia pursuant to a properly filed petition to terminate guardianship. This was done after notice and hearing to appellants and reunification services were not required under such petition. II[] .... .... .... .... .... .... .... . We conclude that the evidence was sufficient to support the order terminating guardianship. The order is affirmed. Epstein, J., and Vogel (C.S.), J., concurred. NOTES [] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II. [1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified. [2] The dispositional order in this case includes the dispositions as to William A. and Desmond G., though they are not subjects of this appeal. The record does not disclose the disposition of Willie H.'s case but he is not a subject of this appeal. [3] We set forth this evidence in the light most favorable to the order. (In re Christina A. (1989) 213 Cal. App.3d 1073, 1080 [261 Cal. Rptr. 903].) [4] In their reply brief, appellants contend that DCS's position represents a change from their legal position below and should not be addressed by this court because of the rule of appellate practice that prohibits a party from changing its legal theory on appeal. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 316, p. 327.) Appellants are wrong, however. DCS has consistently argued that reunification was not required where, as here, it was seeking termination of a legal guardianship. [5] Although nowhere clearly stated, appellants apparently believed that once DCS initiated dependency proceedings under section 300, it was precluded from seeking to terminate the guardianship under section 366.3. They cite no authority for that proposition, however, nor has our own independent research revealed any support for this position. We would be concerned only if there was a significant difference between dependency proceedings and proceedings to terminate a guardianship in due process terms, but no such difference exists. Petitions to terminate guardianship are not summary but require notice and hearing and, where the hearing is contested, clear and convincing proof that termination is in the minor's best interest. (Cal. Rules of Court, rule 1432(f).) The only substantive difference is that reunification services are not part of the termination procedure. Appellants fail to make any showing that the absence of such services in the statutory scheme governing termination violates any other statutory or constitutional right. [] See footnote, ante, page 176.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264138/	33 Cal.App.4th 1052 (1995) 39 Cal. Rptr.2d 396 WHITTIER REDEVELOPMENT AGENCY, Plaintiff and Appellant, v. OCEANIC ARTS et al., Defendants and Respondents. Docket No. B085788. Court of Appeals of California, Second District, Division Seven. March 30, 1995. 1054 COUNSEL Rutan & Tucker, Jeffrey M. Oderman, Philip D. Kohn and A. Patrick Munoz for Plaintiff and Appellant. Sullivan, Workman & Dee, Henry K. Workman and John J. Dee for Defendants and Respondents. OPINION JOHNSON, J. FACTS AND PROCEEDINGS BELOW Plaintiff Whittier Redevelopment Agency commenced eminent domain proceedings to acquire several parcels of land for redevelopment purposes, including parcels in which defendants Oceanic Arts and the Chitjians held leasehold interests. Plaintiff obtained prejudgment possession of the property after depositing the amount of probable compensation as determined by its appraiser. Following the order awarding prejudgment possession, defendants vacated the property. The buildings they owned were demolished and removed and a shopping center constructed on the site. Trial on the amount of compensation to be awarded defendants resulted in a judgment in excess of the amount deposited by plaintiff. Plaintiff filed a timely notice of appeal from the judgment. Thereafter, defendants filed a motion in the trial court for orders requiring plaintiff to increase its deposits of probable compensation to amounts equal to their judgments plus interest, less withdrawals previously made by defendants. Plaintiff filed a motion for permission to pay the judgment, but not the deposits, in installments. The trial court granted the defendants' motion for an increase in the deposits and denied the plaintiff's motion to pay the judgment in installments. Plaintiff filed a timely appeal from the court's orders. 1055 The court's orders are appealable as orders after judgment under section 904.1, subdivision (a)(2).[1] (People ex rel. Dept. of Transportation v. Zivelonghi (1986) 181 Cal. App.3d 1035, 1041 [226 Cal. Rptr. 748].). For the reasons set forth below, we affirm the order denying plaintiff's motion to pay the judgment in installments and affirm, as modified, the orders increasing the deposits of probable compensation. DISCUSSION I. The Trial Court Had Authority Under Code of Civil Procedure Section 1255.030 to Order an Increase in the Deposits of Probable Compensation Pending Plaintiff's Appeal From the Judgment. (1) Plaintiff contends the orders requiring it to increase its prejudgment deposits should be reversed because the court lacked jurisdiction to make such orders during the pendency of the appeal from the judgment and the orders were an abuse of discretion because they amounted to requiring plaintiff to post an undertaking on appeal. To best understand the issues raised in this appeal, some historical background is in order. Prior to 1975, section 1243.5, subdivision (d) provided in relevant part, "At any time after the court has made an order authorizing immediate possession, the court may, upon motion of any party to the eminent domain proceeding, order an increase or a decrease in the security that the plaintiff is required to deposit pursuant to this section if the court determines that the security which should be deposited for the taking of the property and any damage incident thereto is different from the amount of the security theretofore deposited." (Stats. 1961, ch. 1613, § 2, p. 3443, italics added.) Prior to 1961, section 1254 provided in relevant part, "At any time after trial and judgment entered or pending an appeal from the judgment ..., whenever the plaintiff shall have paid into court, for the defendant, the full amount of the judgment, and such further sums as may be required by the court ... [the court may] authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation...." (Stats. 1957, ch. 1851, § 1, pp. 3251-3252, italics added.) Under this legislative scheme the court had discretion to order an increase or decrease in the plaintiff's deposit "at any time" after authorizing prejudgment possession. (Former § 1243.5, subd. (a); Stats. 1961, ch. 1613, § 2, p. 1056 3442.) The court also had specific authority, and was required, to order the plaintiff in possession of the property to deposit the full amount of the judgment if it wished to continue in possession pending appeal of the judgment. In 1961, section 1254 was amended to delete the reference to plaintiffs already in possession. The amended section provided that in cases where the plaintiff was not already in possession of the property the plaintiff could obtain possession "at any time after trial and judgment entered or pending an appeal from the judgment" by paying into court "the full amount of the judgment and such further sum as may be required by the court...." (§ 1254, subds. (a), (d), Stats. 1961, ch. 1613, § 8, p. 3447.) This amendment left the court with the general authority under section 1243.5 to order a plaintiff in possession to increase its deposit "at any time" but made specific reference to deposits pending appeal only in the case of a plaintiff not already in possession. A plaintiff not in possession could obtain possession of the property pending the appeal by depositing the full amount of the judgment and such further sums as the court might require. In 1975, the Legislature repealed the existing eminent domain law and replaced it with a revised version developed by the California Law Revision Commission. (Stats. 1975, ch. 1275, p. 3409; see 13 Cal. Law Revision Com. Rep. (1975) 1007.) Section 1243.5 was replaced by section 1255.030 which provides in relevant part, "(a) At any time after a deposit has been made pursuant to this article, the court shall, upon motion of the plaintiff or of any party having an interest in the property ... determine or redetermine whether the amount deposited is the probable amount of compensation that will be awarded in the proceeding. ".... .... .... .... .... .... .... "(c) If the plaintiff has taken possession of the property and the court determines that the probable amount of compensation exceeds the amount deposited, the court shall order the amount deposited to be increased to the amount determined to be the probable amount of compensation. If the amount on deposit is not increased accordingly within 30 days from the date of the court's order, or such longer time as the court may have allowed at the time of making the order, the defendant may serve on the plaintiff a notice of election to treat such failure as an abandonment of the proceeding." (Italics added.) (See 13 Cal. Law Revision Com. Rep., supra, at pp. 1163-1164.) 1057 Section 1254 was repealed and section 1268.210 was enacted, providing: "(a) If the plaintiff is not in possession of the property to be taken, the plaintiff may, at any time after entry of judgment, apply ex parte to the court for an order for possession, and the court shall authorize the plaintiff to take possession of the property pending conclusion of the litigation if: [¶] ... [¶] (2) The plaintiff has paid to or deposited for the defendants ... an amount not less than the amount of the award, together with the interest then due thereon." Under the new legislative scheme, the court retains authority to order a plaintiff to increase its prejudgment possession deposit "at any time." If the plaintiff is in possession, the court shall order the plaintiff to increase its deposit to the amount the court determines to be the probable amount of compensation. (§ 1255.030, subds. (a), (c).) If the plaintiff is not in possession and no judgment has been entered, it may acquire possession by depositing an amount equal to the probable amount of compensation. (§§ 1255.030, subd. (b), 1268.130.) If the plaintiff is not in possession and a judgment has been entered, the plaintiff may obtain possession by depositing an amount not less than the amount of the award plus interest then due. (§ 1268.210.) In People ex rel. Dept. of Transportation v. Zivelonghi, supra, the court faced the identical issue before us in the present appeal. There the plaintiff brought an eminent domain action in which it alleged ownership of an easement over defendant's land. After submitting an appraisal and deposit into court, plaintiff was given an order for immediate possession of the property. At the valuation trial the jury awarded defendant compensation exceeding the plaintiff's original deposit. Judgment was entered and plaintiff appealed. While the appeal was pending, defendant filed a motion in the trial court for redetermination of probable compensation to include the amount of the judgment plus interest, costs and litigation expenses. The trial court granted the motion and plaintiff appealed from the redetermination order. The court in Zivelonghi looked at the foregoing legislative history and concluded the 1975 eminent domain law failed to provide a procedure for redetermining the amount of a deposit made to obtain prejudgment possession after a judgment has been entered and the case is on appeal. (181 Cal. App.3d at p. 1045.) Specifically, the court concluded section 1255.030 only applies to determining and redetermining the adequacy of the deposit for purposes of acquiring and retaining possession before judgment has been entered. Other sections deal with determining and redetermining the adequacy of the deposit for purposes of acquiring and retaining possession after 1058 judgment has been entered, but if the plaintiff has obtained prejudgment possession there is no procedure for increasing the amount of the deposit of probable compensation following a judgment and while an appeal is pending. (181 Cal. App.3d at p. 1045.) Nevertheless, Zivelonghi held, "the trial court under its inherent power" could devise "a procedure for determination and redetermination of probable compensation where prejudgment possession continued postjudgment. We consider the filing of the motion to redetermine probable compensation for continued postjudgment possession and the trial court's conducting a full and fair hearing an appropriate procedure that fully protects the rights of both the condemner and the condemnee." (181 Cal. App.3d at pp. 1045-1046.) We believe the court in Zivelonghi reached the right results but for the wrong reason. As we explain below, it was unnecessary to resort to the "inherent powers" of the court to provide a remedy for defendant because section 1255.030 provides the necessary authority to order a plaintiff which has obtained prejudgment possession to increase its deposit of probable compensation when a judgment exceeding the amount on deposit has been entered and the plaintiff seeks to retain possession pending appeal. Section 1255.030, subdivision (a) states: "At any time after a deposit has been made pursuant to this article, the court shall, upon the motion of [any interested party], determine or redetermine whether the amount deposited is the probable amount of compensation that will be awarded in the proceeding." (Italics added.) Subdivision (c) of that section states: "If the plaintiff has taken possession of the property and the court determines that the probable amount of compensation exceeds the amount deposited, the court shall order the amount deposited to be increased to the amount determined to be the probable amount of compensation." We interpret the phrase "at any time" to mean exactly what it says: at any time. Therefore, section 1255.030, subdivisions (a) and (c) read together not only authorize, but require, the trial court to order a plaintiff which has obtained prejudgment possession to increase the amount of its deposit of probable compensation following a judgment in excess of the amount deposited. We disagree with the conclusion in Zivelonghi that the statutory power to order an increased deposit only exists prior to judgment. Such an interpretation is wholly inconsistent with the language of the statute, which authorizes the court to redetermine the amount of the deposit "at any time." Plaintiff argues the phrase "at any time" means "at any time prior to judgment." If the Legislature had intended to so limit the trial court's 1059 authority to increase the amount of the deposit, it easily could have said so. Furthermore, we find no basis for concluding the Legislature intended to provide defendants whose property is taken after judgment greater protection than defendants whose property was taken prior to judgment. This would be the result when a plaintiff seeking possession after judgment is required to deposit the full amount of the judgment (§ 1268.210, subd. (a)), but a plaintiff who took possession prior to judgment cannot be required to bring its deposit of probable compensation up to the amount of the judgment. Such an interpretation of the statute would raise serious issues of equal protection and due process. Whenever possible, courts will construe a statute to preserve its constitutionality. (Bradshaw v. Park (1994) 29 Cal. App.4th 1267, 1277 [34 Cal. Rptr.2d 872].) Plaintiff objects to our interpretation of section 1255.030 on the ground its effect is to require plaintiff to post an undertaking on appeal in order to remain in possession of the property. Under section 995.220, subdivision (b) plaintiff is exempt from the bond requirements otherwise required to stay enforcement of a money judgment. (See § 917.1, subd. (a)(1).) The Legislature, however, has provided for an increase in the plaintiff's deposit at any time when it is in possession of the property and the court determines the probable amount of compensation exceeds the amount deposited. (§ 1255.030, subds. (a), (c).) Furthermore, we see no justification for treating plaintiffs who gain possession of the property before judgment differently from plaintiffs who seek possession after judgment. There is no dispute but that the latter are required to post security in the full amount of the judgment in order to obtain possession while an appeal is pending. (§ 1268.210, subd. (a).) Plaintiff also objects that requiring it to deposit the full amount of the judgment pending appeal conflicts with statutes allowing it to pay the judgment in up to 10 installments. (§ 1268.020, subd. (a)(1); Gov. Code, § 970.6, subd. (a).) Again, plaintiff is treated no differently than a plaintiff seeking postjudgment possession of the property. Moreover, as we explain below, the language of section 1255.030, subdivision (c) authorizes the trial court to allow plaintiff to make installment payments to the deposit. Plaintiff next argues the trial court in this case had no jurisdiction to order an increase in the deposit after plaintiff filed its notice of appeal. The short answer to this argument is that section 1255.030, subdivision (a) authorizes the court to make such an order "at any time." There are additional reasons for rejecting plaintiff's argument. The filing of an appeal does not oust the trial court of jurisdiction over every aspect of the case; only over those 1060 aspects which are embraced in, or would impact the effectiveness of, the appeal. (Elsea v. Saberi (1992) 4 Cal. App.4th 625, 629 [5 Cal. Rptr.2d 742].) The amount of plaintiff's deposit of probable compensation is not an issue embraced in its appeal from the judgment nor would increasing the amount of the deposit impact on the effectiveness of the appeal should plaintiff prevail. Plaintiff has statutory protections should defendants seek to withdraw any of the additional deposit. (See §§ 1268.140, subds. (c), (d), 1268.160, 1255.210-1255.280.) For the reasons set forth above, we conclude that when a plaintiff in an eminent domain action has acquired prejudgment possession of the property, the amount of the judgment exceeds the amount plaintiff has deposited as probable compensation and an appeal of the judgment is pending, the trial court has authority under section 1255.030 to order plaintiff to increase its deposit to an amount equal to the amount of the judgment. Plaintiff did not seek leave to pay the additional deposit in installments. This is understandable because the trial court and the parties were operating under the procedure judicially created by the Zivelonghi court which made no mention of increasing the deposit in installments. We have held, however, the trial court should apply the procedures set forth in section 1255.030 in ordering an increase in the deposit. Subdivision (c) of that section provides the plaintiff must increase the amount of the deposit "within 30 days from the date of the court's order, or such longer time as the court may have allowed at the time of making the order." In light of our holding section 1255.030 applies to defendants' motion for an increase in the deposit of probable compensation, fairness requires plaintiff should be given the opportunity to request a period longer than 30 days from the date of the court's order in which to comply. Therefore, we will modify the court's order to provide plaintiff may move for such relief. II. The Trial Court Properly Denied Plaintiff's Motion to Pay the Judgment in Installments. (2) While its appeal from the judgment was pending, plaintiff moved the court for an order allowing it to pay the judgment in installments. (See § 1268.020, subd. (a)(1); Gov. Code, § 970.6, subd. (a).) The trial court denied this motion without prejudice. The motion was not only premature but granting the motion would have required an amendment of the judgment (Gov. Code, § 970.6, subd. (a)) which was beyond the trial court's jurisdiction while the judgment was on appeal. (Takahashi v. Fish & Game Com. (1947) 30 Cal.2d 719, 725 [185 P.2d 805].) 1061 DISPOSITION The order denying the motion to pay the judgment in installments is affirmed. The orders requiring plaintiff to increase its deposits on behalf of defendants Oceanic Arts and Kaspar Chitjian, Jr., within 30 days are modified to add, as to each such order, that within the 30-day period plaintiff may, by duly noticed motion showing good cause therefor, move for an order permitting plaintiff a longer time to increase its deposit and, as so modified, the orders are affirmed. Respondents are awarded costs on appeal. Lillie, P.J., and Woods (Fred), J., concurred. NOTES [1] All statutory references are to the Code of Civil Procedure unless otherwise noted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264139/	240 P.3d 391 (2009) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shane Aaron NEUHAUS, Defendant-Appellant. No. 07CA0896. Colorado Court of Appeals, Div. II. November 25, 2009. 392 John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee. Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant. Opinion by Judge BERNARD. This case involves a conditional guilty plea that allowed a defendant to preserve the right to appeal a trial court order denying a motion to suppress. We conclude that the issue whether conditional guilty pleas should be authorized has not been definitively answered by our supreme court. As a result, we must decide, for the purposes of resolving this case, whether they are authorized. To resolve this issue, we first analyze the status of conditional guilty pleas throughout the United States. Our survey establishes that many states have statutes or rules authorizing conditional guilty pleas. Because Colorado does not have a statute or court rule authorizing conditional guilty pleas, we must, therefore, turn to an analysis of existing case law concerning guilty pleas to determine their nature. This analysis leads us to conclude that, as a matter of legal doctrine, guilty pleas in Colorado are designed to waive the right to attack most pretrial decisions, including orders denying defendants' motions to suppress. Regarding guilty pleas from this perspective, we conclude that Colorado law does not presently provide for conditional guilty pleas. Therefore, we dismiss this appeal. I. Background Defendant, Shane Aaron Neuhaus, was charged with two counts of menacing under 393 section 18-3-206(1)(a) & (b), C.R.S., 2009, one count of possession of a weapon by a previous offender under section 18-12-108(1), (2)(c), C.R.S.2009, and three counts of possession of a weapon by a previous juvenile offender under section 18-12-108(3), C.R.S. 2009. These charges were based upon items found in a warrantless search of a car that defendant had been driving. The search turned up a rifle, a shotgun, and ammunition for both weapons. Defendant filed a pretrial motion to suppress evidence of the weapons and ammunition at trial. The trial court denied it. The trial court then granted defendant's motion to sever the menacing counts, and presided over a jury trial on them. Defendant was acquitted. The parties then entered into a plea disposition to resolve the remaining counts. Defendant pled guilty to one count of possession of a weapon by a previous offender, and the prosecution dismissed the rest. The court approved the parties' stipulation that, as a result of this plea, defendant would be sentenced to fifteen months imprisonment to be served consecutively to the sentence in another case, plus one year of parole. The disposition included the express condition that defendant was permitted to appeal the trial court's ruling on his suppression motion. The parties stated that the results of the appeal would be "dispositive" of the charges, meaning that, if defendant were successful, the subsequent suppression of the evidence would deprive the prosecution of sufficient evidence to go forward with the case. If this court were to reverse the trial court's order denying the suppression motion, the prosecution would allow defendant to withdraw his guilty plea and would dismiss the charges. Defendant appealed to this court. After the completion of briefing, we ordered the parties to file supplemental briefs. As pertinent to our resolution of this appeal, we asked (1) whether the plea agreement was a conditional plea; and (2) if so, whether we have authority to review the suppression issue. II. Colorado Cases Discussing Conditional Guilty Pleas Plea dispositions serve a salutary purpose in our criminal justice system. They lead[ ] to prompt and largely final disposition of most criminal cases; ... avoid[ ] much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial;... protect[ ] the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, [they] enhance[] whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The general rule is that a valid guilty plea waives all nonjurisdictional objections, including allegations that constitutional rights have been violated. A defendant has no right to raise a constitutional claim after pleading guilty unless such a claim relates directly to the guilty plea's adequacy. See People v. Isham, 923 P.2d 190, 195 (Colo. App.1995). One exception to this general rule that has been adopted by other jurisdictions is the conditional guilty plea. One form of conditional guilty plea "allows the defendant to plead guilty, thus avoiding a trial which would serve no purpose, while expressly preserving the right to appeal the denial of his motion to suppress evidence on constitutional grounds." Note, Conditional Guilty Pleas, 93 Harv. L.Rev. 564, 566 (1980). Several Colorado cases have discussed conditional guilty pleas. In People v. Pharr, 696 P.2d 235, 236 (Colo.1984), a defendant entered a conditional guilty plea that purported to preserve the right to appeal the constitutionality of the statute establishing the crime with which he was charged. Our supreme court "specifically disapprove[d]" of this procedure because it was not "recognized by either rule or statute." Id. Subsequently, in Waits v. People, 724 P.2d 1329, 1337 (Colo. 1986), the supreme court stated that a guilty plea precludes a defendant from attacking 394 the plea on the ground that the seizure of evidence was the product of an illegal search "unless a right to challenge the plea is preserved by statute." Id. In People v. Bachofer, 85 P.3d 615, 617 (Colo.App.2003), a division of this court concluded: We perceive no prohibition of the [conditional guilty plea] agreement used here and conclude that in the interest of judicial economy, there is no justification for barring a stipulation whereby a defendant pleads guilty to a charge on the condition that he or she may nevertheless seek review of an adverse pretrial ruling that directly affects the charge. Two years after Bachofer was decided, our supreme court referred to it in People v. McMurtry, 122 P.3d 237, 242-43 (Colo.2005). The court cited Pharr, and then noted that it had "never explicitly endorsed" the use of such pleas. Id. at 243. However, because the plea at issue in McMurtry was not a conditional plea, the court stated that it would "leave to another day the issue of whether the conditional plea is an acceptable practice in Colorado." Id. This case presents us, as a division of the Court of Appeals, with that day. We turn to a survey of other jurisdictions to see how they treat conditional guilty pleas. III. Conditional Guilty Pleas Throughout the United States Debate over the propriety of conditional guilty pleas began in earnest in the early 1970s. Federal circuits eventually fractured over whether such pleas were authorized by law. The Second and Third Circuits approved of them. United States v. Moskow, 588 F.2d 882, 888-90 (3d Cir.1978); United States v. Burke, 517 F.2d 377, 378-79 (2d Cir.1975); United States ex. rel. Rogers v. Warden, 381 F.2d 209, 214 (2d Cir.1967). The Eighth and District of Columbia Circuits praised the concept, although the Eighth Circuit thought its adoption would best be accomplished by a statute, a court rule, or a decision of the Supreme Court. United States v. Clark, 459 F.2d 977, 978 (8th Cir. 1972); United States v. Dorsey, 449 F.2d 1104, 1108 n. 18 (D.C.Cir.1971). The Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits found conditional guilty pleas to be improper. Benson, 579 F.2d at 509-11; United States v. Nooner, 565 F.2d 633, 634 (10th Cir.1977); United States v. Brown, 499 F.2d 829, 832 (7th Cir.1974); United States v. Sepe, 486 F.2d 1044, 1045 (5th Cir.1973); United States v. Matthews, 472 F.2d 1173, 1174 (4th Cir.1973); Cox, 464 F.2d at 941-42. The First Circuit reserved judgment. United States v. Warwar, 478 F.2d 1183, 1185 n. 1 (1st Cir.1973). This split was resolved by the creation of Fed.R.Crim.P. 11(a)(2) in 1983. Although the Committee Note to this 1983 amendment indicate that a few jurisdictions, such as California, New York, and Wisconsin, had statutes or court rules authorizing conditional pleas before the amendment's passage, our research reveals that, as of now, at least thirty-two jurisdictions, including federal courts and the United States military, have approved of conditional guilty pleas. Presently, conditional guilty pleas are authorized in three different ways. Ten jurisdictions have statutes. See Cal.Penal Code §§ 1237.5 & 1538.5(m); Conn. Gen.Stat. §§ 54-94a & 61-6(a)(2)(ii); Mont.Code Ann. § 46-12-204(3); Nev.Rev.Stat. § 174.035(3); N.Y.Crim. Proc. Law § 710.70; N.C. Gen. Stat. § 15A-979(b); Ore.Rev.Stat. § 135.335(3); Tex.Code Crim. Proc. Ann. arts. 44.02 & 11(i) & Tex.R.App. P. 25.2(A); Va.Code Ann. § 19.2-254; Wis. Stat. § 971.31(10). Sixteen jurisdictions authorized conditional guilty pleas for the first time by court rules. See Fed.R.Crim.P. 11(a)(2); Rule for Courts-Martial 910(a)(2); Ark. R.Crim. P. 24.3(b); D.C.Super. Ct. R.Crim. P. 11(a)(2); Fla. R.App. P. 9.140(b)(2)(A)(i); Haw. R. Penal. P. 11(a)(2); Idaho R.Crim. P. 11(a)(2); Ky. R.Crim. P. 8.09; Me. R.Crim. P. 11(a)(2); N.J. R.Crim. P. 3:9-3(f); N.D. R.Crim. P. 11(a)(2); Ohio R.Crim. P. 12(I); Tenn. R.Crim. P. 37(b)(2)(A); Vt. R.Crim. P. 11(a)(2); W. Va. R.Crim. P. 11(a)(2); Wyo. R.Crim. P. 11(a)(2). Six jurisdictions adopted conditional guilty pleas by judicial decision. Four of them, Alabama, Michigan, New Mexico, and Utah, 395 also subsequently promulgated court rules. See Sawyer v. State, 456 So.2d 110, 110-11 (Ala.Crim.App.1982), rev'd after record supplemented, 456 So.2d 112, 113 (Ala.1983), & Ala. R.Crim. P. 26.9(b)(4); Cooksey v. State, 524 P.2d 1251, 1255-56 (Alaska 1974), disapproved of on other grounds by Miller v. State, 617 P.2d 516, 519 n. 6 (Alaska 1980); People v. Reid, 420 Mich. 326, 332-35, 362 N.W.2d 655, 658-60 (1984), & Mich. R.Crim. P. 6.301(C)(2); State v. Crosby, 338 So.2d 584, 586-92 (La.1976); State v. Hodge, 118 N.M. 410, 414-17, 882 P.2d 1, 5-8 (1994), & N.M. Dist. Ct. R.Crim. P. 5-304; State v. Sery, 758 P.2d 935, 938-40 (Utah Ct.App. 1988), & Utah R.Crim. P. 11(j). One state, Georgia, authorized conditional guilty pleas by judicial decision, but, in less than three years, changed its mind because the procedure did not achieve the intended results. Mims v. State, 201 Ga.App. 277, 278-79, 410 S.E.2d 824, 825-26 (1991) (authorizing conditional guilty pleas from different kinds of court rulings, setting forth procedures); Hooten v. State, 212 Ga.App. 770, 770-75, 442 S.E.2d 836, 837-41 (1994) (conditional guilty pleas would no longer be authorized). Thus, of the thirty-two jurisdictions authorizing conditional guilty pleas, only two rely exclusively on judicial decisions for that authority. The language of Fed.R.Crim.P. 11(a)(2) is largely representative of other statutes and court rules. It states: With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. There are, however, some variations. For example, Tenn. R.Crim. P. 37(b)(2)(A)(iv) requires that, as a predicate to an appeal from a conditional guilty plea, the parties and the trial court must be "of the opinion that the certified question is dispositive of the case." Although Fed.R.Crim.P. 11(a)(2) does not contain similar language, it has been interpreted to require that the issue preserved for appeal be dispositive of the case. United States v. Wong Ching Hing, 867 F.2d 754, 758 (2d Cir.1989). We next look to Colorado to see whether our statutes or court rules authorize conditional guilty pleas. IV. Colorado Statutes and Rules Sections 16-7-206, -207, & -301, C.R.S. 2009, and Crim. P. 11, which address guilty pleas and plea negotiations, make no reference to conditional guilty pleas. Section 16-7-301(2)(a)-(e) and Crim. P. 11(f)(2)(I)-(III) authorize a prosecutor to make certain agreements in the course of plea negotiations, but conditional guilty pleas are not mentioned. The statutes and court rules governing appeals and postconviction proceedings likewise do not state that a defendant may raise such a challenge. § 16-12-101, C.R.S.2009 (review of proceedings resulting in conviction); C.A.R. 4(b) (appeals in criminal cases); § 18-1-410, C.R.S.2009 (postconviction remedy); Crim. P. 35(c) (postconviction remedies). Under section 16-12-102(2), C.R.S.2009, and C.A.R. 4.1(a), the prosecution is authorized to take interlocutory appeals to the supreme court if a trial court suppresses evidence for reasons enumerated in section 16-12-102(2), Crim. P. 41(e) & (g), and Crim. P. 41.1(i). These reasons include suppression orders based on determinations that evidence was seized in an illegal search. § 16-12-102(2); Crim. P. 41(e)(1). The statute and the court rule do not provide defendants with a right to an interlocutory appeal, and the supreme court has repeatedly ruled that defendants are not entitled to interlocutory relief under the statute and rule. People v. Weston, 869 P.2d 1293, 1297 (Colo.1994)(citing several cases reaching the same result). Therefore, if a district court resolves a suppression issue against a defendant, the supreme court does not have jurisdiction to address that ruling in an interlocutory appeal. Id. We conclude that conditional guilty pleas are not authorized in Colorado by statute or court rule. We must, therefore, next decide whether United States Supreme Court and 396 Colorado case law governing guilty pleas in general provides a basis for authorizing conditional guilty pleas. V. The General Rule Concerning the Effect of Guilty Pleas The fundamental principle that a guilty plea waives all nonjurisdictional objections has been clearly understood throughout the United States since at least 1973, when the United States Supreme Court stated: [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the plea.... Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Tollett's analysis did not rely on the idea that a defendant's guilty plea waived the right to raise constitutional issues. Rather, Tollett's reasoning was based on the conclusion that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). Thus, when a defendant is convicted by virtue of his or her guilty plea, instead of at trial, the conviction rests on the defendant's admission of guilt, not on any evidence that may have been seized contrary to the Fourth Amendment. Haring v. Prosise, 462 U.S. 306, 321, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983). Once a guilty plea is entered, any previous constitutional violation that concerns factual guilt is a "non-issue." United States v. Gregg, 463 F.3d 160, 164 (2d Cir.2006). It appears that the existence of a statute or court rule authorizing conditional guilty pleas alters how the United States Supreme Court analyzes the effect of a guilty plea. A New York statute that allowed conditional guilty pleas was discussed in Lefkowitz v. Newsome, 420 U.S. 283, 288-92, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), a case in which the defendant sought habeas corpus relief from a state guilty plea. The Supreme Court concluded that a plea entered under the New York statute had different consequences than a "traditional guilty" plea because the statute (1) allowed guilty pleas to preserve constitutional issues for review without the requirements of trial; (2) eliminated the difference between going to trial and pleading guilty for such pleas; and (3) guaranteed defendants entering such pleas that their constitutional claims would still be viable on appeal. Id. It has been the law in Colorado since 1967 that, by pleading guilty, a defendant forfeits his or her right to argue that a conviction is undermined by an allegedly illegal search. Von Pickrell v. People, 163 Colo. 591, 595, 431 P.2d 1003, 1005 (1967)("We point out ... that one who pleads guilty is not in a position to successfully move for vacation of judgment on claims of an alleged illegal search and seizure."). One commentator, writing in the early 1970s, observed that such a "policy" was "universal" in American state courts. Arthur N. Bishop, Waivers in Pleas of Guilty, 60 F.R.D. 513, 516 (1973 & 1974). Our supreme court's explanation of Von Pickrell's rationale in Lucero v. People, 164 Colo. 247, 251, 434 P.2d 128, 130 (1967), anticipated the Supreme Court's analysis in Tollett, Menna, and Haring: The defendant forfeited his right to trial by pleading guilty. The only purpose that could be served by suppressing the evidence which was seized by the police would be to prevent its use by the prosecution at trial.... The prosecution's need for the evidence, after the guilty plea, ceased to exist, hence the question of the validity of 397 the evidence was not properly before the court, unless, of course, it could be shown that the defendant did not intelligently, understandingly, and voluntarily enter the plea of guilty. Thus, applying this authority, when a defendant enters a guilty plea in Colorado, the plea eliminates the need for any evidence seized in an allegedly illegal search, and the entry of the plea renders the legality of the search irrelevant. Because a voluntary and intelligent plea is reliable, the question of factual guilt is no longer a part of the case, and the legality of the plea does not rely on evidence that was allegedly the product of an illegal search. According to Cox, 464 F.2d at 942, "[t]here is a fundamental and basic inconsistency between knowingly and intelligently entering a voluntary plea of guilty, and then appealing from the judgment entered on the basis of that plea." This reasoning was echoed in United States v. Benson, 579 F.2d 508, 510 (9th Cir.1978), where the court stated, "We believe that the use of the conditional guilty plea is grossly inconsistent with the principle recognized in ... Tollett." Reading Tollett, Menna, and Haring with Von Pickrell and Lucero, our view of Colorado law is congruent with the position taken by the federal courts of appeal in Cox and Benson. We conclude that an appeal attacking the legality of a search is fundamentally inconsistent with a voluntary and intelligent guilty plea. By entering a guilty plea, a defendant forfeits the right to file such an appeal. Without a statute or a court rule authorizing them, guilty pleas in Colorado are what Lefkowitz described as "traditional pleas," meaning that our guilty pleas do not (1) preserve constitutional issues for review without the requirements of trial; (2) eliminate the distinction between trials and guilty pleas; or (3) guarantee defendants entering guilty pleas that their constitutional claims will still be viable on appeal. 420 U.S. at 290, 95 S.Ct. 886. We are not the only state to reach this result. At least seven other courts perceive guilty pleas in their states in the same way. See State v. Valenzuela, 121 Ariz. 348, 350, 590 P.2d 464, 466 (Ariz.Ct.App.1978) (by entering a plea of no contest, a defendant waives all nonjurisdictional defenses and "may not by express stipulation or otherwise reserve for appeal non-jurisdictional defects under such a plea"); People v. Green, 21 Ill.App.3d 1072, 1074, 316 N.E.2d 530, 532 (1974)(counsel could not reserve the right to appeal the denial of a suppression motion "since a voluntary guilty plea waives all non-jurisdictional errors in defendant's conviction"); State v. Dorr, 184 N.W.2d 673, 674 (Iowa 1971) (conditional guilty pleas would "create numerous appellate problems and endless confusion"); State v. Parkhurst, 121 N.H. 821, 823, 435 A.2d 522, 523 (1981) ("Although some justify the use of conditional guilty pleas in the name of `judicial economy,' we believe that such a practice can only undermine the public's confidence in the integrity of the criminal justice system." (citation omitted)); Commonwealth v. Thomas, 351 Pa.Super. 423, 428, 506 A.2d 420, 423 (1986)(court declined to recognize conditional guilty plea because of "entrenched precedent" that a guilty plea "waives for the purpose of appellate review all nonjurisdictional defects"); State v. Soares, 633 A.2d 1356 (R.I.1993) ("conditional plea of nolo [contendere] may not be accepted by the [trial court] subject to appeal on the issue of a motion to suppress"); State v. Downs, 361 S.C. 141, 145, 604 S.E.2d 377, 379 (2004)("If the trial court accepts a conditional guilty plea, then the plea will be vacated on appeal."). We now proceed to the last step in our analysis, in which we evaluate whether Colorado law authorizes conditional guilty pleas. VI. Propriety of Conditional Guilty Pleas in Colorado As a result of the inconsistency it perceived between entering a plea and appealing the judgment based on the plea, the court in Cox observed that there was a "strong suggestion" in McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), that conditional guilty pleas are "improper unless specifically authorized by statute." Cox, 464 F.2d at 942 n. 4. At least three state courts have agreed *398 with this position. State v. Lothenbach, 296 N.W.2d 854, 858 (Minn.1980) ("The preferable way for adopting [conditional guilty pleas] in Minnesota would be through the amendment of [the rules of criminal procedure]."); State v. Turcotte, 164 Mont. 426, 429-30, 524 P.2d 787, 789 (1974) (court would not approve of conditional guilty plea in the absence of a statute authorizing it); Tompkins v. State, 705 P.2d 836, 839-40 (Wyo. 1985)(court declined to consider appeal of allegedly illegal search because conditional guilty pleas were not authorized by Wyoming court rules). When we read Lefkowitz with Pharr and Waits, we conclude that we agree with this authority. Thus, without a statute or a court rule, Colorado law applies the general rule and, therefore, does not authorize conditional guilty pleas. It has been twenty-six years since Fed. R.Crim.P. 11(a)(2) was promulgated, and yet Colorado has not seen a corresponding statute or court rule. This inaction over so long a period may be an indication that there is no desire in our state to change the status of our law. As the Wyoming Supreme Court observed in Tompkins, 705 P.2d at 839: The fact that our Rule 15 was once the same as [Federal Rule of Criminal Procedure 11] and has not been amended to match [Federal Rule of Criminal Procedure 11(a)(2)] adds weight to the conclusion that a conditional plea is neither contemplated nor to be allowed under our rules of criminal procedure. Therefore, we respectfully disagree with the conclusion reached in Bachofer that Colorado law does not prohibit conditional guilty pleas. See American Family Mut. Ins. Co. v. Murakami, 169 P.3d 192, 193 (Colo.App. 2007) (one division of the court of appeals is not bound by the decision of another). Rather, we conclude that, in the absence of a statute or court rule, conditional guilty pleas are prohibited. VII. Conclusion Because Colorado does not have a statute or court rule authorizing conditional guilty pleas, the general rule prevails unmodified, and, under it, defendant's guilty plea forfeited the right to appellate review of the trial court's denial of his motion to suppress. See People v. Smith, 183 P.3d 726, 729 (Colo.App. 2008) (Colorado Court of Appeals bound by decisions of Colorado Supreme Court). As a result, we do not have the authority to review defendant's appeal, and it must be dismissed. See Weston, 869 P.2d at 1297. However, because defendant's plea was expressly based upon the condition that he be allowed to pursue this appeal, he must be permitted, if he desires, to withdraw his guilty plea when this case is returned to the trial court. If defendant elects to withdraw his plea, the prosecution must be given the option of reinstating all charges, and then deciding whether to offer defendant the same plea disposition or a different plea disposition, or to proceed to trial. See Waits, 724 P.2d at 1338 (the defendant may withdraw a guilty plea if a court does not agree to a plea bargain, and the prosecution may then reinstate the charges). The appeal is dismissed, and the case is remanded for further proceedings as directed. Judge CASEBOLT and Judge MILLER concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264143/	33 Cal.App.4th 482 (1995) 39 Cal. Rptr.2d 354 In re MARVEN C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARVEN C., Defendant and Appellant. Docket No. B078648. Court of Appeals of California, Second District, Division Four. March 24, 1995. 483 COUNSEL Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Tricia A. Bigelow and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent. [Opinion certified for partial publication.[]] OPINION EPSTEIN, J. Marven C. appeals from an order of the juvenile court declaring him a ward under Welfare and Institutions Code section 602, and committing him to the California Youth Authority for a period not to exceed 484 29 years to life. In the published portion of this opinion, we discuss his challenge to the jurisdictional finding of the juvenile court. Appellant argues there is insufficient evidence in the record to establish that he appreciated the wrongfulness of his conduct, as required by Penal Code section 26 when the minor is under the age of 14 at the time of the charged conduct. We find the adjudication is supported by substantial evidence. In the unpublished portion of the opinion, we address appellant's additional arguments. He contends that the adjudication of count 1 of the petition must be treated as a finding of second degree murder because the juvenile court failed to specify the degree. We find the juvenile court's statement ambiguous, and remand for clarification on this issue. Appellant argues that the trial court abused its discretion in committing him to the California Youth Authority. We find no abuse of discretion. Finally, he argues that an improper enhancement was imposed for count 2 of the petition, discharge of a firearm. We concur, and remand the matter for a new disposition. FACTUAL AND PROCEDURAL SUMMARY On June 18, 1992, Henry Tovar, Julio Garcia, Ivan Potter, Wilfredo Marroquin and a fifth youth identified only as Jorge drove to the Sherman Oaks Center for Enriched Studies to pick up Jorge's girlfriend Ruth. Ivan was driving Jorge's brown Subaru station wagon. While at the school, Ivan was confronted by three males in a blue Mustang. The front passenger asked Ivan where he was from. Ivan understood that as asking his gang affiliation. Ivan replied, "Nowhere." The passenger responded that he was from "STC," and pulled a gun from his stomach area. Ivan told him to be sure he killed him, because Ivan would retaliate. Ivan also challenged the passenger to a fistfight. At that point, the blue Mustang pulled away. Ivan's group returned to the Subaru, and Ivan turned onto Erwin Avenue in front of the school. He was passed by the blue Mustang. When the Mustang was eight feet in front of the Subaru, the front passenger leaned far out of the window and fired toward the Subaru. None of the occupants of the Subaru was hit. With the Mustang in the lead, both cars turned into the next street, which turned out to be a dead end. Part way down the street, Ivan began to turn the Subaru, but had difficulty putting the car in reverse. At that point, the front passenger in the Mustang again leaned out the car window and fired a series of shots. Once again, all the occupants of the Subaru escaped injury. Ivan drove out of the dead-end street back to Erwin, then turned into a driveway. The Mustang followed. Ivan and Julio got out of the car and 485 moved for cover. At that point, the front passenger of the Mustang leaned out of the window and fired a final shot. Wilfredo was shot, dying within the week. Henry, Julio, and Ivan identified appellant in court as the shooter. Henry was a former member of the 18th Street gang. Julio was a member of the same gang, but no longer lived in its territory. The People presented evidence that earlier in the month of the shooting, appellant was dating Karen Mendez, who attended the Center for Enriched Studies. Karen was a member or associate of STC, the Street Criminals gang, as was appellant. One week before the shooting, Karen had a confrontation on a school bus with Juan Ayala. She threatened to bring her "home-boys" down. Another student at the school, Alma Castro, told Los Angeles Police Officer Kevin Korne that she had seen the gunfire from the blue Mustang on June 18, 1992. She also had seen Karen and Karen's sister, Cynthia, in front of the school that day. Alma said she knew that Karen's boyfriend drove a blue car, believed the blue Mustang belonged to him, and believed Karen's boyfriend was picking Karen up at school on the day of the shooting. Los Angeles Police Officer Juan Gomez qualified as a gang expert. He testified that the 18th Street and Street Criminal gangs had been in conflict since late 1991. Several months before the shooting, appellant told Officer Gomez that he was a member of the Street Criminals, and was known as "Lil' Cyco." Appellant's defense was based on misidentification. Henry and Ivan each testified that the shooter had uniformly short hair with no pony tails on the day of the shooting. Appellant presented witnesses, including a detention officer at the Sylmar Juvenile Hall where he was detained after his arrest. The detention officer testified that appellant had two curly pony tails until she cut them off at the Sylmar facility. The two pony tails were introduced into evidence since appellant had asked that they be saved for his mother. An expert on eyewitness identification testified about the adverse impact of stress on the accuracy of eyewitness identification. Appellant claimed the shooting was committed in self-defense, or imperfect self-defense, arguing that Ivan had pursued the Mustang and that one of the youths in the Subaru had thrown a rock at the Mustang from the driveway where Wilfredo was shot. A petition was filed under Welfare and Institutions Code section 602, alleging in count 1 that appellant murdered Wilfredo Marroquin (Pen. Code, § 187, subd. (a)), and in count 2 that he discharged a firearm at an occupied 486 vehicle (Pen. Code, § 246). The juvenile court sustained the petition on both counts and declared the minor a ward of the court. Appellant was committed to the Youth Authority for a period not to exceed 29 years to life. He filed a timely appeal from the jurisdictional and dispositional orders. DISCUSSION I Juvenile Court Jurisdiction "Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. (Pen. Code, § 26, subd. One.) To defeat the presumption, the People must show by `clear proof' that at the time the minor committed the charged act, he or she knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602. [Citation.] Only those minors over the age of 14, who may be presumed to understand the wrongfulness of their acts, and those under 14 who as demonstrated by their age, experience, conduct, and knowledge clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system. [Citation.]" (In re Manuel L. (1994) 7 Cal.4th 229, 231-232 [27 Cal. Rptr.2d 2, 865 P.2d 718], fn. omitted.) The Supreme Court has construed the "clear proof" standard as requiring that "the People ... prove by clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct at the time it was committed." (Id. at p. 232.) On appeal, we must determine whether substantial evidence supports the conclusion of the trier of fact. (In re Paul C. (1990) 221 Cal. App.3d 43, 52 [270 Cal. Rptr. 369].) The record reflects some confusion as to appellant's age. The original petition alleged that he was born October 14, 1976, which would have made him 15 years old at the time of the shooting. During trial, the court took judicial notice of a birth certificate from Guatemala which stated that appellant was born October 2, 1978, a birthdate that would fix his age at 13 years at the time of the shooting. The trial court found that appellant comes with Penal Code section 26. After both appellant and the People had rested, appellant's attorney moved to dismiss the petition for insufficiency of the evidence on the ground that the People had not met the requirements of Penal Code section 26. The trial court found: "[T]he facts do impute a knowledge of the wrongfulness of this act. [¶] ... [¶] The manner in which this was conducted, the speed with which it was conducted, firing and departing the scene, all do impute a 487 knowledge of the wrongfulness of the act. [¶] Shooting at someone several times in a public place to kill them would not be something that even a two-year-old would think would be all right. [¶] A minor as street-smart as this individual has shown himself to be does leave him to the imputation of knowledge of the wrongfulness of his acts. And the court does so find." The motion to dismiss was denied. The juvenile court "must consider the child's age, experience, and understanding. [Citation.] A minor's knowledge of his act's wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment. [Citation.]" (In re Paul C., supra, 221 Cal. App.3d at p. 52.) (1) We conclude there is substantial evidence to support the trial court's finding. The Guatemalan birth certificate was credited. It established that appellant was at least 13 years and 8 months old at the time of the shooting. "`[I]t is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of his acts.' [Citations.]" (In re Paul C., supra, 221 Cal. App.3d at p. 53.) The evidence established that appellant carried a concealed weapon to the school and displayed it to Ivan, pulling it from "his stomach." When a school security guard appeared, the blue Mustang departed. Thereafter, appellant fired shots at the occupants in the Subaru on three separate occasions as the cars drove in the area of school. Each time, appellant leaned far out of the car window to fire the gun. Prior to the shooting, appellant had identified himself to Officer Gomez as a member of the Street Criminals gang. This evidence establishes the basis for a finding that appellant was within the jurisdiction of the juvenile court under Penal Code section 26 and In re Manuel L., supra, 7 Cal.4th at pages 231-232. This is not conduct which could possibly be interpreted as lawful. It was murder, in which appellant took three opportunities to fire at his intended victims. We are unpersuaded by appellant's reliance on the fact that he committed his crimes in public view of a school in heavy traffic in the middle of the afternoon. While it is true that evidence of concealment is a factor in meeting the requirements of Penal Code section 26 (see In re Paul C., supra, 221 Cal. App.3d at p. 53), we decline to infer an inability to understand the wrongfulness of conduct because the act was public. Appellant also argues "The manner was a typical drive-by shooting." He asserts that "it is difficult to discern how the manner of this particular 488 drive-by demonstrated knowledge of wrongfulness." We are not so sanguine about this "typical" drive-by shooting. It was, in fact, a chase rather than a drive-by. The evidence amply supports the juvenile court's finding by clear and convincing evidence that appellant appreciated the wrongfulness of his conduct. He was properly adjudicated a ward within the provisions of Welfare and Institutions Code section 602. II, III[] .... .... .... .... .... .... .... . DISPOSITION The jurisdictional order is reversed and remanded for a finding of the degree of murder under count 1 of the petition. In all other respects, the jurisdictional adjudication is affirmed. The disposition is reversed, and the matter is remanded for recalculation of the maximum permissible time in custody in a manner consistent with the views expressed in this decision. Woods (A.M.) P.J., and Vogel (C.S.), J., concurred. Appellant's petition for review by the Supreme Court was denied June 21, 1995. NOTES [] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II and III. [] See footnote, ante, page 482.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264148/	33 Cal.App.4th 1108 (1995) 39 Cal. Rptr.2d 535 STEVEN W., Plaintiff and Respondent, v. MATTHEW S., Defendant and Appellant. Docket No. A063987. Court of Appeals of California, First District, Division Four. March 31, 1995. 1111 COUNSEL Robert E. Amos for Defendant and Appellant. Glen H. Schwartz and Larry M. Hoffman for Plaintiff and Respondent. 1112 OPINION PERLEY, J. The case before us presents a unique and difficult question. Two men assert a parental interest in a child, and while both have a basis for their claim, the law allows for only one legal father. Matthew S. contends that the trial court erred in refusing to apply former Evidence Code section 621, subdivision (a)[1], conclusively presuming him to be the father of the minor child, Michael. He also alleges that the trial court's decision was premature and that the best interests of the child should be explored. We conclude that Evidence Code section 621 did not apply and that the issue of paternity was properly decided before considering custody and visitation. I. FACTUAL BACKGROUND Matthew and Julie were married in 1982. They had one child in 1983 whose parentage is not at issue. In 1986, Julie moved out of the apartment they shared and moved in with respondent Steven W. with whom she was romantically involved. Julie told Steven that she was divorcing Matthew. Divorce papers were prepared and Julie and Steven made plans to marry. Steven was unaware that Julie never filed for divorce and that she maintained a sexual relationship with Matthew. Matthew was seemingly unaware that Julie was sexually involved with Steven. In 1987, Julie discussed having another child with each man independently. In May 1987, Julie became pregnant while on a romantic weekend tryst with Matthew. She continued to live with Steven and initially told both men that they were the father. Steven, however, participated in Lamaze classes, doctor's appointments, shopping for baby supplies, and baby showers and was in the delivery room when Michael was born. Steven was listed as the father on the birth certificate and the child was given his surname. Matthew was not informed of the birth until weeks later, and was told that he was not the father. Steven and Julie purchased a home together shortly after Michael was born. Steven fed, bathed and cared for the child, and participated in all decisions regarding health care, babysitting and education from the time of Michael's birth. Matthew did not actually see Michael until he was two or three months old. 1113 Steven and Julie continued to live together until 1990 when Steven discovered that Julie was deceiving him about her relationship with Matthew. Steven moved out of the residence he shared with Julie, but continued to share custody and support of Michael. At the end of 1990, Matthew moved into the residence with Julie and lived there for a year. Throughout this time period, Steven continued to have custody of Michael three days a week. He was listed as the father on the school records, and attended school meetings regarding Michael; Matthew did not. Steven instituted this action against Julie and Matthew on December 12, 1990, asserting that he was Michael's father. Julie's answer admitted Steven's paternity. Matthew failed to answer the complaint, and a default judgment was entered against him five months later. In February 1992, Matthew moved for relief from the default judgment. He also petitioned to have his marriage with Julie dissolved. The default judgment was set aside on April 28, 1992. Steven was thereafter joined as a party in the dissolution proceeding. The issues pertaining to paternity, custody and support of Michael were reserved for trial, and the paternity issue was then bifurcated, pursuant to Steven's unopposed motion, to be tried prior to the issues of custody, visitation, and support. Prior to trial, Julie and Matthew submitted to blood tests which revealed that Matthew was Michael's biological father. The trial court ruled that both Steven and Matthew qualified as Michael's "presumed father" under the Uniform Parentage Act.[2] The court concluded, however, that Matthew was estopped from invoking his presumptions of paternity and rebutting Steven's paternity, and that Steven's presumption of paternity was controlling because he had the "more prolonged, intensive and continuing relationship" with Michael. II. DISCUSSION A. (1a) We first address Steven's contention that this court need not review the merits of the trial court's ruling on paternity because the trial court abused its discretion in setting aside Matthew's default judgment. He argues that there was no evidence that Matthew's delay in seeking relief under Code of Civil Procedure section 473 was due to extrinsic fraud or mistake. 1114 (2) Code of Civil Procedure section 473 creates a six-month statute of limitations for setting aside a default judgment; the court, however, has inherent equity power to set aside a default based on extrinsic fraud or mistake. (In re Marriage of Baltins (1989) 212 Cal. App.3d 66, 80 [260 Cal. Rptr. 403].) The most common ground for equitable relief is extrinsic fraud, and the strongest examples of extrinsic fraud occur when the aggrieved party is induced not to appear, relying on representations, in the context of a confidential relationship, that his interests will be protected. (8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, § 205, p. 604.) "`[E]xtrinsic fraud is a broad concept that "tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing."'" (In re Marriage of Baltins, supra, 212 Cal. App.3d at p. 83.) "[I]n some cases, `the ground of relief is not so much the fraud or other misconduct of the [other party] as it is the excusable neglect of the [moving party] to appear and present his [or her] claim or defense. If such neglect results in an unjust judgment, without a fair adversary hearing, the basis for equitable relief is present, and is often called "extrinsic mistake."'" (Ibid., citing 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 211, pp. 614-615.) (1b) In the present case, the trial court did not abuse its discretion in finding excusable neglect. There was ample evidence that Matthew relied on Julie's assurances that his interests would be protected. Julie told Matthew that her attorneys were handling the matter and the attorney fees were paid from a line of credit that they jointly held. Matthew was therefore entitled to relief from the default judgment. B. (3) Matthew contends that the conclusive presumption of former Evidence Code section 621 precludes the trial court's finding that Steven is Michael's father. This contention lacks merit because Matthew failed to establish the cohabitation element of section 621. Former section 621, subdivision (a) of the Evidence Code provided that "... the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." The married couple must be cohabiting to trigger this conclusive presumption. (City and County of San Francisco v. Strahlendorf (1992) 7 Cal. App.4th 1911 [9 Cal. Rptr.2d 817].) Cohabitation has acquired a "peculiar and appropriate meaning" through its use in defining common law marriages. (Kusior v. Silver (1960) 54 Cal.2d 603, 612 [7 Cal. Rptr. 129, 354 P.2d 657].) The 1115 settled meaning of cohabitation is "`living together as husband and wife.'" (Id. at p. 616.) In Kusior, the California Supreme Court reversed a line of cases which held mere access or opportunity for access sufficient to satisfy the cohabitation requirement. (Ibid.) The court specifically incorporated the definition of cohabitation previously used in determining common law marriage: "`And by cohabitation is not meant simply the gratification of the sexual passion, but "to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also."'" (Kusior v. Silver, supra, at p. 612, citing Kilburn v. Kilburn (1891) 89 Cal. 46, 50 [26 P. 636].) Here, the evidence shows that Matthew and Julie were not cohabiting within the meaning of the statute. Julie was living with Steven, not Matthew at the time that Michael was conceived and born. Cohabitation implies more than a stolen weekend or a sexual encounter; it is living together in a marital household, sharing day-to-day life. (See, Kusior v. Silver, supra, 54 Cal.2d 603, 612-613, fn. 3.) Appellant cites Jackson v. Jackson (1967) 67 Cal.2d 245 [60 Cal. Rptr. 649, 430 P.2d 289] as support for the proposition that a weekend trip suffices as cohabitation. Jackson implies that a newlywed couple is cohabiting while on their honeymoon. The case, however, is inapposite. A couple on their honeymoon is embarking on their married life. Given their circumstances, the only marital household they have yet had an opportunity to create is their honeymoon suite. There is no indication in Jackson that the wife's primary residence was with someone other than her husband. Here, Julie was cohabiting with Steven during 1987. Julie's weekend encounter with Matthew away from their respective residences does not amount to cohabitation within the meaning of former Evidence Code section 621. The trial court erred in its interpretation of cohabitation; the conclusive presumption of paternity does not apply. C. (4a) Notwithstanding the trial court's error that the presumption of former Evidence Code section 621 was applicable, the court determined that Michael's best interests precluded its implementation. The court further found that the presumption of Steven's paternity under former Civil Code 1116 section 7004, subdivision (a)(4) was controlling and that it rebutted Matthew's presumption of paternity under former Civil Code section 7004, subdivision (a)(4).[3] Matthew concedes that Steven is a presumed father under former Civil Code section 7004, subdivision (a)(4), but he argues that he also is a presumed father under subdivisions (a)(1) and (a)(4) of section 7004 and that his presumed father status controls.[4] We conclude that the trial court properly determined that the presumption of Steven's paternity was controlling. (5) Former section 7004, subdivision (b) of the Civil Code provided that when presumptions conflict, "the presumption which on the facts is founded on the weightier consideration of policy and logic controls." The paternity presumptions are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. The state has an "`interest in preserving and protecting the developed parent-child ... relationships which give young children social and emotional strength and stability.'" (Susan H. v. Jack S. (1994) 30 Cal. App.4th 1435, 1442 [37 Cal. Rptr.2d 120], citing Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 363 [216 Cal. Rptr. 748, 703 P.2d 88].) The courts have repeatedly held, in applying paternity presumptions, that the extant father-child relationship is to be preserved at the cost of biological ties. (Michelle W. v. Ronald W., supra, at p. 363 [alleged biological father's abstract interest in establishing paternity not as weighty as the state's interest in familial stability and the welfare of the child]; Comino v. Kelley (1994) 25 Cal. App.4th 678, 684 [30 Cal. Rptr.2d 728] [court refused to apply conclusive presumption of Evidence Code section 621 to deny the child the only father she had ever known].) "`"[I]n the case of an older child [over two years of age] the familial relationship between the child and the man purporting to be the child's father is considerably more palpable than the biological relationship of actual paternity. A man who has lived with a child, treating it as his son or daughter, has developed a relationship with the child that should not be lightly dissolved.... This social relationship is much more important, to the child at least, than a biological relationship of actual paternity...."'" (Susan H. v. Jack S., supra, 30 Cal. App.4th at p. 1443, quoting Estate of 1117 Cornelious (1984) 35 Cal.3d 461, 465-466 [198 Cal. Rptr. 543, 674 P.2d 245].) (4b) Here, despite Matthew's biological ties to Michael, he acquiesced in Steven's assumption of the role of father in Michael's life. He never participated in any decisions regarding Michael's health or education but deferred to Steven. Steven continued to share custody of Michael even after his relationship with Julie ended. The record establishes that Steven developed the enduring father-child relationship with Michael. He openly held Michael out as his son to his family, to the school, to the world. He signed the birth certificate, gave Michael his surname, and participated in all aspects of his emotional and financial support for the first four years of the child's life. Given the strong social policy in favor of preserving the ongoing father and child relationship, the trial court did not err in finding that the conflict between the presumptions weighed in favor of Steven. Because we have concluded that the presumption of Steven's paternity was controlling, we need not decide whether Matthew was estopped from establishing his paternity. D. (6) Matthew further alleges that the trial court's judgment was premature and that more evidence should be heard on what is in the best interests of the child. That consideration is not before us. The issues were properly bifurcated with consent of all the parties. If Matthew had any objection to the bifurcation, he waived it. An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, p. 321.) Failure to object to the ruling or proceeding is the most obvious type of implied waiver. (9 Witkin, Cal. Procedure, supra, § 307, p. 317.) Michael's best interests will be fully explored when the court determines custody and visitation rights. III. CONCLUSION Judges neither create nor sever genetic bonds (Lehr v. Robertson (1983) 463 U.S. 248, 261 [77 L.Ed.2d 614, 626, 103 S.Ct. 2985]), and our decision today does not limit provisions for visitation by all interested parties if it is 1118 in the best interests of the child. The judgment is affirmed. Costs are awarded to respondent. Anderson, P.J., and Reardon, J., concurred. Appellant's petition for review by the Supreme Court was denied June 29, 1995. NOTES [1] Evidence Code section 621 was repealed effective January 1, 1994, and replaced by Family Code sections 7540 and 7541 without substantive change. We will refer to the Evidence Code. [2] The Uniform Parentage Act, formerly Civil Code section 7000 et seq., was repealed and reenacted as part of the Family Code effective January 1, 1994. Because the order here was made prior to the effective date of the new law, it is governed by former Civil Code section 7000 et seq. (Fam. Code, § 4, subd. (c).) [3] Civil Code section 7004 was repealed and replaced by Family Code sections 7611 and 7612 without substantive change. Former Civil Code section 7004, subdivision (a)(4) provides presumed father status when a man receives a child into his home and openly holds out the child as his natural child. [4] Subdivision (a)(1) of former section 7004 sets forth a presumption of fatherhood for a man who is married to the child's mother when the child is born during the marriage. We note that pursuant to former Evidence Code section 895.5 (now Fam. Code, § 7555) appellant was also entitled to a rebuttable presumption of paternity on the basis of the blood test evidence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264150/	33 Cal.App.4th 456 (1995) 39 Cal. Rptr.2d 364 JUN W. JUE et al., Cross-complainants and Respondents, v. MIKE PATTON et al., Cross-defendants and Appellants. Docket No. A064503. Court of Appeals of California, First District, Division Four. March 24, 1995. 457 COUNSEL Godfrey L. Munter, Jr., Duane W. Dresser and Thomas L. Bloxham for Cross-defendants and Appellants. Wendel, Rosen, Black & Dean, Charles A. Hansen and Steven M. Morger for Cross-complainants and Respondents. 458 OPINION PERLEY, J. Mike Patton and Margaret Tam (appellants) appeal from an order denying attorney fees pursuant to a real estate sales contract. They contend that as prevailing parties they are entitled to attorney fees under Code of Civil Procedure sections 1032 and 1033.5. We affirm. FACTUAL BACKGROUND This litigation arises from a dispute concerning the purchase and sale of apartment buildings pursuant to a written agreement. Respondents were the purchasers of the buildings while Tam was the seller and Patton was Tam's agent under the agreement. Respondents financed the purchase of the buildings by assuming a loan held by Bay View Federal Savings (Bay View). In April 1992, Bay View filed the underlying complaint in this action for judicial foreclosure based on the allegation that respondents failed to make the required payments on the loan. In June 1992, respondents filed a cross-complaint against appellants alleging intentional and negligent misrepresentation and other tort claims as well as requesting rescission and equitable indemnity. In May and June of 1993, the parties discussed settling the cross-complaint. The parties were unable to settle the matter and subsequently, respondents filed a request for voluntary dismissal of their cross-complaint without prejudice. Dismissal was entered as requested in July 1993. Appellants thereafter moved for an award of attorney fees and costs. The trial court found that appellants were prevailing parties pursuant to Code of Civil Procedure[1] section 1032 and awarded appellants costs including attorney fees pursuant to sections 1021, 1032 and 1033.5. Following entry of the trial court's order, respondents moved for reconsideration of the order, contending appellants were not entitled to attorney fees because under Civil Code section 1717, there is no prevailing party when an action is voluntarily dismissed. The trial court granted the motion and denied appellants an award of attorney fees. DISCUSSION (1) Appellants contend that because the cross-complaint alleged tort causes of action arising from a purchase and sale agreement which has an attorney fee provision, that they, as the prevailing parties, are entitled to 459 attorney fees under sections 1032 and 1033.5.[2] They rely on a series of cases in which attorney fees were awarded to the prevailing party on tort claims which were based on a contract containing a provision for attorney fees incurred in any action "arising out of" the contract. (See Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal. App.4th 1338, 1343-1345 [5 Cal. Rptr.2d 154]; Lerner v. Ward (1993) 13 Cal. App.4th 155, 160-161 [16 Cal. Rptr.2d 486]; Palmer v. Shawback (1993) 17 Cal. App.4th 296, 299-301 [21 Cal. Rptr.2d 575].) None of those cases, however, involved the situation here where the action was voluntarily dismissed. For example, in Xuereb, the defendants prevailed in an action alleging that real property was delivered in a defective condition. At trial, the plaintiffs also proceeded on a breach of contract claim but dropped the contract theory after the conclusion of testimony. The trial court denied the defendants attorney fees which were sought pursuant to a provision in the purchase agreement for attorney fees to the prevailing party "`if this Agreement gives rise to a lawsuit or other legal proceeding.'" (Xuereb v. Marcus & Millichap, Inc., supra, 3 Cal. App.4th at p. 1340.) Division Three of this court held that the plaintiffs were entitled to attorney fees under section 1021[3] because the tort causes of action arose from the contract. "Under [section 1021], the allocation of attorney fees is left to the agreement of the parties. There is nothing in the statute that limits its application to contract actions alone. It is quite clear from the case law interpreting Code of Civil Procedure section 1021 that parties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract." (3 Cal. App.4th at p. 1341.) The court concluded that attorney fees were awardable pursuant to the purchase agreement because the attorney fee provision was broad enough to encompass both tort and contract actions and that "but for the Purchase Agreement by which the allegedly defective property was sold to respondents, the dispute between the parties would not have arisen." (Id. at pp. 1343-1344.) Similarly, in Lerner v. Ward, supra, 13 Cal. App.4th at page 159, the plaintiffs proceeded on only a tort theory at trial and dismissed their contract claims. Lerner also involved a purchase agreement in a real estate transaction with a provision permitting attorney fees to the prevailing party in an 460 action "`arising out of this agreement.'" (Id. at pp. 158-159.) The court held that the provision permitted attorney fees to the prevailing party on the tort claims under section 1021. (Lerner v. Ward, supra, at pp. 160-161; see also Palmer v. Shawback, supra, 17 Cal. App.4th at pp. 299-300 [following Xuereb and Lerner and holding that attorney fees are recoverable on tort action based on real estate purchase agreement].) In the present case, however, both the contract and tort causes of action were voluntarily dismissed before trial. It is now well settled that in pretrial dismissal cases, the parties are left to bear their own attorney fees. (International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 224-225 [145 Cal. Rptr. 691, 577 P.2d 1031].) In Olen, our Supreme Court held that "sound public policy and recognized equitable considerations require that we adhere to the prior practice of refusing to permit recovery of attorney fees based on contract when the plaintiff voluntarily dismisses prior to trial." (Id. at p. 223.) The court reasoned that "[i]n pretrial dismissal cases, we are faced with a Hobson's choice of either (1) adopting an automatic right to attorney fees, thereby encouraging the maintenance of pointless litigation and violating the equitable principles which should govern attorney fee clauses, (2) providing for application of equitable considerations, requiring use of scarce judicial resources for trial of the merits of dismissed actions, or (3) continuing the former rule, denying attorney fees in spite of agreement. We are satisfied that concern for the efficient and equitable administration of justice requires that the parties in pretrial dismissal cases be left to bear their own attorney fees, whether claim is asserted on the basis of the contract or [Civil Code] section 1717's[[4]] reciprocal right." (Id. at p. 225, italics added.) Olen is dispositive of the issue here. Recovery of attorney fees based on a contract provision is not permitted when the action is voluntarily dismissed prior to trial. Appellant's argument that Olen is inapposite because of the 1990 amendment to section 1033.5 is without merit. Prior to 1990, there was some ambiguity as to whether to claim attorney fees as costs or to treat them as damages. (Bankes v. Lucas (1992) 9 Cal. App.4th 365, 370 [11 Cal. Rptr.2d 723].) In 1990, the Legislature amended section 1033.5 to resolve this ambiguity. The amendment to section 1033.5 was "remedial, intended only to clarify the procedural aspects for claiming attorney fees as costs." (9 *461 Cal. App.4th at p. 370, fn. 3.) The Legislature expressly set forth this intent in section 2 of the act to amend section 1033.5: "The Legislature finds and declares that there is great uncertainty as to the procedure to be followed in awarding attorney's fees where entitlement thereto is provided by contract to the prevailing party. It is the intent of the Legislature in enacting this act to confirm that these attorney's fees are costs which are to be awarded only upon noticed motion, except where the parties stipulate otherwise or judgment is entered by default...." (Stats. 1990, ch. 804, § 2.) Given this clear manifestation of the Legislature's intent, it is evident that the amendment to section 1033.5 was not intended to nor did it effect a change in the rule set forth in Olen that attorney fees are not recoverable in pretrial dismissal cases. The judgment is affirmed. Respondents to recover costs on this appeal. Anderson, P.J., and Poche, J., concurred. Appellants' petition for review by the Supreme Court was denied June 22, 1995. NOTES [1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated. [2] Section 1032, subdivision (b) provides: "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." Section 1033.5 sets forth the items that are allowable as costs which include attorney's fees when authorized by contract, statute or law. [3] Section 1021 provides: "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided." [4] Civil Code section 1717, subdivision (a) provides: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs...."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264180/	35 Cal.Rptr.3d 487 (2005) 133 Cal.App.4th 1013 John ZIPPERER et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA, Defendant and Respondent. No. H028455. Court of Appeal, Sixth District. September 30, 2005. As Modified October 28, 2005. 489 Albin E. Danell, San Jose, CA, for Plaintiffs and Appellants. Michael L. Rossi, Office of the County Counsel, San Jose, CA, for Defendant and Respondent. Certified for Partial Publication.[] McADAMS, J. Plaintiffs John and Cecilia Zipperer sued the County of Santa Clara on various theories, based on allegations that their solar home was malfunctioning as a result of shading from trees growing on defendant's adjoining property. The trial court sustained defendant's demurrer to plaintiffs' first amended complaint, without leave to amend. This appeal followed. For reasons explained in the opinion, we agree with the trial court's determination that plaintiffs have not stated any cause of action against defendant, nor is there any reasonable possibility that the defects in their complaint can be cured by amendment. Treating the order sustaining the demurrer as a judgment of dismissal, we therefore affirm. 490 FACTS[1] In the mid-1980s, plaintiffs built a solar home on their property in Los Gatos, after obtaining permits to do so from defendant. In 1991, defendant acquired a parcel of land that adjoins plaintiffs' property, and defendant placed that land in a Parks Reserve. There is a grove of five or six trees growing on defendant's land. Since 1991, those trees have been growing at the rate of 10 to 15 feet per year. By 2004, the trees were about 100 feet taller than when defendant acquired the land. In 1997, plaintiffs' solar system began to malfunction because the trees on defendant's land interfered with the sunlight reaching their solar panels. Despite numerous requests from plaintiffs, and notwithstanding verbal promises by "certain officials and certain individuals that this situation would be corrected," defendant did not trim or remove the trees. PROCEDURAL HISTORY In April and May 2004, plaintiffs filed tort claims with defendant. According to plaintiffs, "there was no time limit" for filing these claims, because their injury was of a "continuing" nature. Defendant rejected the claims. In May 2004, plaintiffs brought this action against defendant. The verified complaint asserted causes of action for nuisance, trespass, statutory violations constituting negligence, and intentional infliction of emotional distress. As to their negligence claim, plaintiffs alleged that defendant violated various statutes, including the Solar Shade Control Act. In July 2004, defendant demurred to the complaint. In support of its demurrer, defendant asked the trial court to take judicial notice of a Santa Clara County ordinance entitled "Exemption from Solar Shade Control Act." Plaintiffs opposed the demurrer, but not defendant's request for judicial notice. In September 2004, after a hearing on the matter, the trial court sustained defendant's demurrer, granting plaintiffs leave to amend their complaint within 20 days. Plaintiffs filed a verified first amended complaint in September 2004. Among other things, the amended complaint asserted a new cause of action for breach of contract, as well plaintiffs' previous claims for nuisance, negligence, trespass, violation of statute, and emotional distress. As to their new contract claim, plaintiffs alleged a contract with defendant based on its grant of building permits for their solar home. Plaintiffs attached the permits as an exhibit to the amended complaint. The first amended complaint drew another demurrer, which defendant filed in October 2004. Again, plaintiffs opposed the demurrer. Following a hearing held in December 2004, the trial court entered its formal order sustaining defendant's demurrer without leave to amend. Defendant gave notice of the order in January 2005. This appeal ensued. THRESHOLD ISSUES Before analyzing the substantive issues raised in this appeal, we first address two threshold procedural questions: whether we may review the challenged order at all, and if so, what standards govern that review. 491 Appealability Although plaintiffs' form notice of appeal refers to a judgment of dismissal, the appellate record contains no judgment. This appeal thus appears to have been taken from the order sustaining defendant's demurrer to plaintiffs' first amended complaint, without leave to amend. "Orders sustaining demurrers are not appealable." (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695, 40 Cal.Rptr.2d 125.) But "an appellate court may deem an order sustaining a demurrer to incorporate a judgment of dismissal." (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920, 167 Cal.Rptr. 831, 616 P.2d 813.) It is particularly appropriate to do so when the absence of a final judgment results from inadvertence or mistake. (Id. at p. 921, 167 Cal.Rptr. 831, 616 P.2d 813.) In this case, defendant does not argue for dismissal of the appeal, and the issues are fully briefed. (See Gu v. BMW of North America, LLC, supra, 132 Cal.App.4th 195, 33 Cal.Rptr.3d 617.) Under the circumstances, we will decide this case on its merits by treating the order as incorporating a judgment of dismissal. Standard and Scope of Review We review a trial court's decision to sustain a demurrer for an abuse of discretion. (See, e.g., Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.) We likewise review a trial court's denial of leave to amend for an abuse of discretion. (Ibid.) "As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459-460, 80 Cal.Rptr.2d 329. See also, e.g., Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569; Gu v. BMW of North America, LLC, supra, 132 Cal.App.4th 195, 33 Cal.Rptr.3d 617.) "Nevertheless, where the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result." (City of Atascadero, at pp. 459-460, 80 Cal.Rptr.2d 329.) In analyzing the existence of liability under the governing substantive law, "we exercise our independent judgment about whether the complaint states a cause of action as a matter of law." (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790, 90 Cal.Rptr.2d 598.) "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. `We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) On appeal, "the plaintiff bears the burden of demonstrating that the trial court erred." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879, 6 Cal.Rptr.2d 151.) If the claimed error is the trial court's refusal to permit amendment of the complaint, the "plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.) 492 In this case, plaintiffs bear the further burden of particularity in pleading their tort-based causes of action, since defendant is a public entity. "Under the Government Tort Liability Act, all liability is statutory. Hence, the rule that statutory causes of action must be specifically pleaded applies, and every element of the statutory basis for liability must be alleged." (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 579, pp. 675-676. See, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-793, 221 Cal.Rptr. 840, 710 P.2d 907.) With those principles in mind, we consider the sufficiency of plaintiffs' complaint under the governing substantive law. ANALYSIS In the unpublished portion of this opinion, we address each of the six asserted causes of action of plaintiffs' first amended complaint. We conclude that none is viable nor is there any reasonable possibility of cure. In the published portion of this opinion, we discuss only plaintiffs' third cause of action, which asserts negligence. First Cause of Action: Breach of Contract[] Third Cause of Action: Negligence One essential element of a cause of action for negligence is a legal duty. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984, 25 Cal.Rptr.2d 550, 863 P.2d 795.) "That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship." (Id. at p. 985, 25 Cal.Rptr.2d 550, 863 P.2d 795.) In this case, plaintiffs base their negligence claim on the asserted breach of a statutory duty arising under the Solar Shade Control Act. (See Pub. Res.Code, §§ 25980-25986.)[3] Governing Substantive Law: The Solar Shade Control Act "The Solar Shade Control Act ... provides limited protection to owners of solar collectors from shading caused by trees on adjacent properties." (Sher v. Leiderman, supra, 181 Cal.App.3d at p. 880, 226 Cal.Rptr. 698.) Enacted in 1978, the Act has been described as "protecting active or passive solar energy systems (SES's) against obstruction by later-planted or later-grown trees and foliage...." (Kucera v. Lizza, supra, 59 Cal.App.4th at p. 1152, 69 Cal.Rptr.2d 582, statutory citation omitted.) In pertinent part, the Act provides: "After January 1, 1979, no person owning, or in control of a property shall allow a tree or shrub to be placed, or, if placed, to grow on such property, subsequent to the installation of a solar collector on the property of another so as to cast a shadow greater than 10 percent of the collector absorption area" during mid-day hours as specified in the statute. (§ 25982; see generally, 11 Witkin, Summary of Cal. Law, supra, Equity, § 137 p. 820.) The Act permits local jurisdictions to exempt themselves from its operation. The exemption provision states: "Any city, or for unincorporated areas, any county, may adopt, by majority vote of the governing body, an ordinance exempting their jurisdiction from the provisions of this chapter. The adoption of such an ordinance shall not be subject to the provisions of the California Environmental Quality Act (commencing with Section 21000)." (§ 25985.) 493 The Parties' Contentions The parties disagree on whether the Solar Shade Control Act applies in this case.[4] Under defendant's interpretation of the Act, there can be no liability here because defendant did not plant or "place" the trees for purposes of the statute. In other words, there is no statutory violation because these were not "later-planted" trees. (Kucera v. Lizza, supra, 59 Cal.App.4th at p. 1152, 69 Cal.Rptr.2d 582.) Plaintiffs dispute that interpretation, urging that defendant is liable under the Act, because it permitted the trees to grow. As plaintiffs see it, liability attaches for these "later-grown" trees. (Ibid.) The parties also disagree about the statutory exemption. Defendant asserts that it is exempt from the Act, having adopted an ordinance as authorized by section 25985. Plaintiffs argue against application of the exemption here, asserting "that there was already in existence a continuing duty on the part of the County" when it adopted the ordinance and a continuing breach of that duty when plaintiffs' solar system began to fail. Plaintiffs thus contend: "The County should be liable for any of the damages they had already caused." They characterize defendant's use of the exemption provision as "a quasi-ex post facto application on the part of the County." As we understand it, the essence of plaintiffs' argument on this point is that defendant's ordinance offends constitutional principles because it operates retroactively, defeating their preexisting damage claims. Defendant does not specifically meet that contention. Analysis As we now explain, plaintiffs' statutory claim cannot be maintained because defendant is exempt from the Solar Shade Control Act by virtue of its adoption of a qualifying ordinance, as permitted by section 25985. Given that determination, we need not address the parties' differing interpretations of other provisions of the Act. "`In passing on the validity of an ordinance or a statute it will be presumed that it is valid.'" (City of Industry v. Willey (1970) 11 Cal.App.3d 658, 663, 89 Cal.Rptr. 922.) "We interpret ordinances by the same rules applicable to statutes." (Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290, 82 Cal.Rptr.2d 569.) Here, plaintiffs do not make a facial attack on the validity of either the ordinance or the enabling statute. Instead, they object to defendant's use of the statutory exemption to the extent that it operates retrospectively to extinguish their statutory claims. "Although the courts normally construe statutes to operate prospectively, the courts correlatively hold under the common law that when a pending action rests solely on a statutory basis, and when no rights have vested under the statute, `a repeal of such a statute without a saving clause will terminate all pending actions based thereon.'" (Governing Board v. Mann (1977) 18 Cal.3d 819, 829, 135 Cal.Rptr. 526, 558 P.2d 1.) In other words, 494 where "the Legislature has conferred a remedy and withdraws it by amendment or repeal of the remedial statute, the new statutory scheme may be applied to pending actions without triggering retrospectivity concerns...." (Brenton v. Metabolife Internat., Inc. (2004) 116 Cal.App.4th 679, 690, 10 Cal.Rptr.3d 702.) Furthermore, legislative action "can effect a partial repeal of an existing statute." (Ibid.) "`The justification for this rule is that all statutory remedies are pursued with full realization that the legislature may abolish the right to recover at any time.'" (Governing Board, at p. 829, 135 Cal.Rptr. 526, 558 P.2d 1.) That common law principle has been codified in California, as follows: "Any statute may be repealed at any time, except when vested rights would be impaired. Persons acting under any statute act in contemplation of this power of repeal." (Gov.Code, § 9606.) The substance of the legislation determines whether it constitutes a repeal. (Southern Service Co., Ltd. v. Los Angeles (1940) 15 Cal.2d 1, 13, 97 P.2d 963.) Applying the foregoing principle to the case at hand, we conclude that plaintiffs' cause of action was eliminated by defendant's ordinance. In reaching that conclusion, we consider four factors: the statutory nature of the plaintiffs' claim; the unvested nature of plaintiffs' claimed rights; the timing of the elimination of those rights; and the nature of the mechanism by which the right of action was eliminated. Addressing the first factor, we observe that plaintiffs' claim is wholly statutory, arising as it does from defendant's asserted violation of the Solar Shade Control Act. Plaintiffs' claim is "a cause of action unknown at the common law ... created by statute...." (Department of Social Welfare v. Wingo (1946) 77 Cal.App.2d 316, 320, 175 P.2d 262.) It derives from special remedial legislation. (See Southern Service Co., Ltd. v. Los Angeles, supra, 15 Cal.2d at p. 12, 97 P.2d 963.) In other words, plaintiffs "possessed no right or remedy... which existed apart from the statute itself and which the legislature could not cut off by repeal." (Id. at p. 11, 97 P.2d 963 [right to tax refund or credit "is purely statutory"].) We next consider whether the nature of plaintiffs' rights prevents abolition of their claim. Repeal of a remedial statute destroys a pending statutory action unless "vested or contractual rights have arisen under" the statute. (Department of Social Welfare v. Wingo, supra, 77 Cal.App.2d at p. 320, 175 P.2d 262; see Gov.Code, § 9606.) In this case, no such rights have arisen. As explained in the unpublished portion of the opinion, plaintiffs have no contractual rights against defendant. Nor do plaintiffs have any vested right in maintaining their statutory claim. "`No person has a vested right in an unenforced statutory penalty or forfeiture.'" (Department of Social Welfare, at p. 320, 175 P.2d 262. Accord, People v. One 1953 Buick (1962) 57 Cal.2d 358, 366, 19 Cal.Rptr. 488, 369 P.2d 16; Chapman v. Farr (1982) 132 Cal.App.3d 1021, 1024-1025, 183 Cal.Rptr. 606.) Until it is fully enforced, a statutory remedy is merely an "`inchoate, incomplete, and unperfected'" right, which is subject to legislative abolition. (People v. One 1953 Buick, supra, 57 Cal.2d at p. 365, 19 Cal.Rptr. 488, 369 P.2d 16.) The third factor in determining whether a statutory claim has been extinguished is timing. Whenever the Legislature eliminates a statutory remedy "before a judgment becomes final," the legislative act "destroys the right of action." (Department of Social Welfare v. Wingo, supra, 77 Cal.App.2d at p. 320, 175 P.2d 262.) Repeal thus "wipes out the 495 cause of action unless the same has been merged into a final judgment." (Wolf v. Pacific Southwest etc. Corp. (1937) 10 Cal.2d 183, 185, 74 P.2d 263.) "If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal." (Southern Service Co., Ltd. v. Los Angeles, supra, 15 Cal.2d at p. 12, 97 P.2d 963. See also, e.g., Chapman v. Farr, supra, 132 Cal.App.3d at pp. 1024-1025, 183 Cal.Rptr. 606.) Here, the statutory right that plaintiffs assert was eliminated in 2002, two years before they filed this suit. Finally, we turn to the legislative mechanism by which the right of action is abolished. Typically, that mechanism is repeal or amendment of the remedial statute. (See, e.g., Brenton v. Metabolife Internat., Inc., supra, 116 Cal.App.4th at p. 690, 10 Cal.Rptr.3d 702.) But we know of no rule of law that limits the Legislature to those methods. To the contrary, as our high court has observed, even where "the words of the [] statute are not expressly words of repeal without a saving clause, ... the effect is the same in so far as the application of the principles is concerned when the legislature by apt expression has withdrawn the right and remedy in particular cases, including all pending actions based thereon." (Southern Service Co., Ltd. v. Los Angeles, supra, 15 Cal.2d at p. 13, 97 P.2d 963.) The critical point is that "the legislature may take away the right of action itself." (Ibid.) Our high court thus has alluded to the Legislature's "power to enact a statute which would cut off the right theretofore accorded the plaintiff...." (Id. at p. 12, 97 P.2d 963) It also has spoken of the Legislature's power to "withdraw" a statutory right or remedy. (See id. at pp. 11, 12, 97 P.2d 963; International etc. Workers v. Landowitz (1942) 20 Cal.2d 418, 421, 126 P.2d 609.) As noted above, we look to the substance of the legislation not its label to determine whether it operates as a repeal. (Southern Service Co., Ltd. v. Los Angeles, supra, 15 Cal.2d at p. 13, 97 P.2d 963.) The pivotal issue is whether the legislation constitutes "a substantial reversal of legislative policy" that represents "the adoption of an entirely new philosophy" vis-à-vis the prior enactment. (People v. One 1953 Buick, supra, 57 Cal.2d at p. 363, 19 Cal.Rptr. 488, 369 P.2d 16.) In this case, we conclude, the statutory right of action was eliminated by the exemption provision, which operated as a valid repeal method. Here, at the very time that the Legislature created the statutory right of action under the Solar Shade Control Act, it expressly empowered cities and counties to foreclose such actions against them. In this case, once defendant exercised that power, plaintiffs' statutory cause of action was abolished. Just as surely as if the Legislature had repealed the Solar Shade Control Act in its entirety, the "statutory authority for [plaintiffs'] action ... has now been withdrawn." (International etc. Workers v. Landowitz, supra, 20 Cal.2d at p. 421, 126 P.2d 609 [right to enjoin violation of ordinance was lost upon repeal of the enabling statutes].) Put another way, "the legislature by apt expression has withdrawn the right and remedy" that otherwise would be available to plaintiffs under the Solar Shade Control Act. (Southern Service Co., Ltd. v. Los Angeles, supra, 15 Cal.2d at p. 13, 97 P.2d 963.) That legislative choice embodies "a substantial reversal of [the] legislative policy" that underpins the remainder of the Act and "an entirely new philosophy" concerning its mandatory application to local jurisdictions. (People v. One 1953 Buick, supra, 57 Cal.2d at p. 363, 496 19 Cal.Rptr. 488, 369 P.2d 16.) In short, we conclude, the exemption provision put in place by the Legislature and adopted by defendant is a valid mechanism for extinguishing a statutory claim under the Solar Shade Control Act. To sum up, plaintiffs' statutory cause of action is abolished. Plaintiffs enjoyed no vested rights in this statutory claim, which was unknown at common law, and which was not pursued to final judgment before its elimination by defendant's use of the exemption provision. That exemption operated as a form of repeal when defendant adopted it, extinguishing plaintiffs' statutory right of action. Because the mechanism of repeal was authorized by the Legislature, the elimination of plaintiffs' claim under these circumstances does not implicate retrospectivity concerns. Fourth Cause of Action: Trespass[] CONCLUSION[] DISPOSITION Treating the trial court's order as incorporating a judgment of dismissal, we affirm. BAMATTRE-MANOUKIAN, Acting P.J., and MIHARA, J., concur. NOTES [] All portions of the opinion shall be published, with these exceptions: (a) the discussion of the first, second, fourth, fifth, and sixth causes of action, which appears under the heading "ANALYSIS" and (b) the paragraph that appears under the heading "CONCLUSION". [1] Because this case comes to us following a demurrer, we take the facts from plaintiffs' first amended complaint, the operative pleading. (See Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 33 Cal.Rptr.3d 617.) [*] See footnote , ante. [3] In this section of the opinion, which discusses plaintiffs' third cause of action, further unspecified statutory references are to the Public Resources Code. [4] A review of the chronology of pertinent events will be helpful to an understanding of the parties' contentions. In 1979, the Solar Shade Control Act took effect. (§ 25982.) In 1984-1985, plaintiffs built their solar home with county permits. In 1991, defendant acquired the adjoining parcel of land, with the trees already on it, and it placed that land in a Parks Reserve. In 1997, plaintiffs' solar system began to fail. In 2002, defendant adopted an ordinance exempting itself from the Solar Shade Control Act. In 2004, plaintiffs filed this action. [**] See footnote , ante.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264183/	33 Cal.App.4th 680 (1995) 39 Cal. Rptr.2d 870 THE PEOPLE, Plaintiff and Respondent, v. RANDY A. IRELAND, Defendant and Appellant. Docket No. H012609. Court of Appeals of California, Sixth District. March 28, 1995. 684 COUNSEL Ben Rice and Margaret H. Marr for Defendant and Appellant. Arthur Danner III, District Attorney, and Lisa Agliano, Assistant District Attorney, for Plaintiff and Respondent. OPINION PREMO, J. Defendant Randy A. Ireland was charged by complaint in municipal court with misdemeanor offenses of driving under the influence of 685 alcohol (Veh. Code, § 23152, subd. (a)),[1] and driving with.08 percent or more, by weight, of alcohol in his blood (§ 23152, subd. (b)). The jury found defendant guilty on the section 23152, subdivision (b) count, but hung on the section 23152, subdivision (a) count. The trial court declared a mistrial on the subdivision (a) count, then later dismissed that count conditioned "upon ratification of verdict." Defendant appealed to the appellate department of the superior court, which affirmed the judgment. More than a year later, the appellate department recalled the remittitur and certified the appeal to us. We accepted the transfer of the appeal because of the importance of the issues raised. (1) During the pendency of the appeal with this court, defendant requested that judicial notice be taken of certain scientific literature and legislative histories. Respondent interposed no objection. We decided to consider that request together with the consideration of the merits of this appeal. We now resolve to take judicial notice of the legislative histories submitted. As to the scientific literature, we take judicial notice only to the existence of the writings; the truth of the scientific claims written about cannot be judicially noticed, but must be proved, since some of those claims are currently the subject of controversy. (Evid. Code, § 452.) We affirm the judgment. FACTS On October 19, 1991, at 11:30 p.m., Capitola City Police Officer Philip Wowak stopped a van which he had observed speeding and following too closely. As Wowak approached the van, defendant driver rolled down the window. The officer smelled the odor of alcohol coming from the vehicle. He noticed, among other symptoms, that defendant's speech was slurred, his eyes were very bloodshot, and his movements were very slow and deliberate when retrieving his wallet and driver's license. Wowak conducted field sobriety tests, which defendant failed. Defendant told Wowak he had consumed one beer earlier that evening. Wowak arrested defendant for driving under the influence. Wowak advised defendant that he had the choice of a blood, breath, or urine test. Defendant chose the breath test. Wowak, who had been trained in administering breath tests, administered the breath test to defendant at 12:01 a.m. and 12:02 a.m. The results showed alcohol concentrations of 0.11 percent and 0.10 percent. 686 Wowak advised defendant he could choose another test at no charge. Defendant declined to do so, saying "this is all he wanted to do." The People presented as its expert witness Juan Bergado, a criminalist with the Department of Justice. Bergado reviewed the accuracy logs of the Intoxilyzer 5000 machine which was used for defendant's breath test, and concluded that the instrument was operating properly on the date of defendant's test. Bergado explained that the 2,100:1 breath-to-blood conversion ratio is determined from correlation studies wherein blood samples drawn from an individual's arm are compared to breath samples taken from that individual. He further explained that the 2,100:1 ratio represents the parts of alcohol found in the breath compared to the parts of alcohol found in the blood drawn from the arm. Testifying in his defense, defendant testified that he had a beer at a relative's home about 6 p.m. About 7 p.m., he, together with some relatives and friends, went to a restaurant for dinner. The dinner took two hours, during which time defendant consumed two beers. At 9 or 9:15 p.m., defendant went to another bar where he and his relatives and friends stayed for a half an hour or 40 minutes. They then went to a third bar (Castaways) where defendant consumed one beer. Approximately one hour later, defendant left for home. Defendant's expert witness, William Gigiere, explained the basis of the 2,100:1 alcohol-in-breath to alcohol-in-blood ratio. He testified that alcohol is first absorbed into the artery, then gets distributed throughout the body. The neurological effects of alcohol are the result of the alcohol coming in contact with the brain, which is the control center of the body. Alcohol reaches the veins after peak absorption. At peak absorption, the arterial value of alcohol is equal to its venous value "from a practical standpoint." Prior to peak absorption, the amount of alcohol in the artery (reflected by the breath test) will be greater than the amount of alcohol in the veins (reflected by the blood test). Consequently, the 2,100:1 statutory partition ratio will be overstated during the absorptive phase and understated during the postabsorptive phase. Gigiere testified that he had tested defendant on November 24, 1991, to determine defendant's partition ratio. Defendant's partition ratio during the absorptive phase was 1,329:1. During the postabsorptive stage, defendant's breath alcohol result was slightly lower than his venous blood alcohol result. On cross-examination, Gigiere stated he could not say what defendant's partition ratio was at the time of defendant's arrest. Gigiere acknowledged that a person's partition ratio is germane to the time of the test. 687 CONTENTIONS In this appeal, defendant contends: 1. The Legislature did not create a new substantive offense of driving with an excessive breath-alcohol content. 2. The Legislature did not intend to exclude evidence of the variability of blood:breath partition ratios. 3. Due process and the right to confront adverse witnesses entitle the accused to present evidence of the variability between blood and breath test results. 4. Unless defendants are allowed to challenge the blood:breath partition ratio, the statute creates an unconstitutional mandatory presumption. 5. To interpret the statute as creating a new offense of "excessive breath-alcohol" would violate equal protection because similarly situated individuals would be held to different standards of conduct based on the arbitrary factor of which test was given. DISCUSSION Creation of New Substantive Offense (2) Defendant contends the Legislature did not create a new substantive offense of driving with an excessive breath-alcohol content. The contention is without merit. The critical issue is not whether the 1990 amendment (hereafter, 1990 amendment) to section 23152, subdivision (b), creates a new substantive offense of driving with an excessive breath-alcohol content, but whether the Legislature has the power to prohibit any person with a certain amount of alcohol concentration in his or her breath from driving a motor vehicle. It is immaterial whether the prohibition is viewed as a new offense or as an alternative definition of an existing offense. As amended in 1990, section 23152, subdivision (b), reads in pertinent part: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. [¶] For purposes of this subdivision, percent, by weight, of alcohol in a person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (See Stats. 1990, ch. 708, § 1.) 688 California's earliest law on drunk driving was a 1913 statute which provided: "No intoxicated person shall operate or drive a motor or other vehicle upon any public highway within this state." (Stats. 1913, ch. 326, § 17, p. 646; Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal. Rptr. 145, 673 P.2d 732].) In 1969, the Legislature, recognizing the need for a more precise understanding of the offense of "driving under the influence," created a presumption that the driver is under the influence if he or she had .10 percent or more by weight of alcohol in his or her blood. (Burg v. Municipal Court, supra, 35 Cal.3d at p. 263; cf. Stats. 1969, ch. 231, § 1, p. 565.) Reliance on this presumption subsequently proved inadequate. The Legislature realized that the ultimate question was still "defined in terms of the defendant's subjective behavior and condition: `Was the defendant under the influence at the time he drove?'" (Burg v. Municipal Court, supra, 35 Cal.3d at p. 263.) In Burg, the court observed that "[c]elerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his blood-alcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication. [Citations.]" (Ibid.) The magnitude of the problem was described by the court in Burg: "Nearly half of the traffic deaths in California between 1976-1980 involved drinking drivers. [Citation.] Nearly one-quarter of all traffic accidents resulting in injury involved the use of alcohol. [Citation.] Traffic deaths in the United States exceed 50,000 annually, and approximately one-half of those fatalities are alcohol-related. [Citations.] [¶] The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. [Citations.] As observed in Breithaupt v. Abram (1957) 352 U.S. 432 [1 L.Ed.2d 448, 77 S.Ct. 408], `[t]he increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.' [Citation.] Indeed, in the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam War. [Citation.] Given this setting, our observation that `[d]runken drivers are extremely dangerous people' [citation] seems almost to understate the horrific risk posed by those who drink and drive." (35 Cal.3d at pp. 261-262.) In 1981, the Legislature fortified the drunk driving laws by amending subdivision (b) to section 23152. That amended subdivision stated: "It is 689 unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle upon a highway or upon other than a highway in areas which are open to the general public. [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (See Stats. 1981, ch. 940, § 33, p. 3578.) In Burg v. Municipal Court, supra, 35 Cal.3d at page 265, the court held that section 23152, subdivision (b), established a new and separate offense. More significantly, the court held that under the subdivision (b) scheme, it was no longer necessary to prove that the defendant was in fact under the influence; it was enough to prove that the defendant's blood-alcohol level was 0.10 percent or more. The 1981 addition of subdivision (b) to section 23152 did not end the Legislature's quest for answers to the continuing "slaughter on our highways." In 1989, the Legislature further toughened its laws by lowering the blood-alcohol level requirement from .10 percent to .08 percent. (Stats. 1989, ch. 1114, § 27, p. 4040.) However, because the proscribed driving was still based on the amount of alcohol present in the person's blood, it was necessary, in the case of defendants who elected urine or breath tests, to convert the alcohol readings in those tests to their corresponding blood-alcohol readings. The conversion was done by using the guidelines set forth in title 17, California Code of Regulations, section 1220.4, subdivision (f): "A breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood." The conversion requirement produced attacks on the reliability of the partition ratio. As noted in People v. Lepine (1989) 215 Cal. App.3d 91, 94 [263 Cal. Rptr. 543]: "[T]he ratio of 2,100 to 1 is not constant and varies from individual to individual and from time to time.... [¶] [V]ariations in partition ratios are the function of whether the individual is still absorbing alcohol at the time the sample was taken, the temperature of the lungs, the speed of exhalation, the depth of exhalation, the amount of humidity in the air, the amount of mucus in the lungs and the individual's hematocrit, i.e., the ratio of blood cells to total blood volume." The need for the prosecution to prove that breath-test readings met the .08 percent requirement when converted to blood-alcohol readings did not promote the legislative scheme. The Assembly Committee on Public Safety, the Senate Rules Committee, and the Senate Committee on Judiciary all decried 690 that the challenges to the accuracy of the partition ratio had resulted in "expensive and time consuming evidentiary hearings and undermine[d] successful enforcement of driving under the influence laws." (Hearing notes of Assem. Com. on Pub. Saf. (May 15, 1990) Assem. Bill No. 4318.) In 1990, Assembly Bill No. 4318 (hereafter, AB 4318) was introduced to "[e]liminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when breath analysis is used." (Assem. Com. on Public Safety, May 15, 1990 hearing.) The committee explained that "[t]he complexities of the existing conversion or partition ratio result in a significant number of cases being challenged on the accuracy and applicability of the partition ratio." (Hearing notes of Assem. Com. on Pub. Saf., supra, AB 4318) The Legislature's dissatisfaction with the conversion requirement led the Assembly Committee on Public Safety to focus its hearings on the specific issue of: "Should the offense of driving under the influence of alcohol be statutorily defined in terms of the concentration of alcohol found in the breath when breath analysis is used?" (Assem. Com. on Pub. Saf., May 15, 1990 hearing.) The hearing notes of the Assembly Committee on Public Safety disclose that in addressing this issue, the committee considered the opinions of experts on the subject. Among the opinions expressly noted were those of M.F. Mason, Ph.D., Professor of Forensic Medicine and Toxicology, and K.M. Dubowski, Ph.D., Professor of Medicine and Director of Toxicology Laboratories, who had recommended that "`the conversion of a breath quantity to a blood concentration of ethanol, for forensic purposes, should be abandoned and the offense of driving while under the influence of alcohol should be statutorily defined in terms of the concentration of ethanol found in the breath in jurisdictions employing breath analysis. [Citation.]'" At the Assembly third reading, the digest of AB 4318 stated that the bill would "[e]liminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when breath analysis is used." In the Senate, two committees conducted hearings on AB 4318. Both the Senate Rules Committee (Aug. 7, 1990) and the Senate Committee on the Judiciary (1989-1990 Reg. Sess.) recognized that AB 4318 "would statutorily define the offense of driving under the influence of alcohol in terms of 691 the concentration of alcohol found in the breath when breath analysis is used." Both committees also observed that AB 4318 "would eliminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence of alcohol in terms of the concentration of alcohol found in the breath when the breath analysis is used." AB 4318 was not the first California legislative attempt to define driving under the influence in terms of the alcohol concentration in a person's breath. A precursor, Senate Bill No. 1119 (Stats. 1989, ch. 1114; hereafter, SB 1119), had earlier provided that chemical tests could alternatively be based on grams of alcohol per 210 liters of breath. However, SB 1119 had an effective date of January 1992. The Legislature did not want to wait until 1992 to put the new scheme into effect. AB 4318 was accordingly introduced to advance the operative date of the change. As stated by the Assembly Committee on Public Safety: "Last year the Legislature approved and the Governor signed Senate Bill 1119 (Seymour) which, effective January 1992, eliminates the DUI partition ratio, an unnecessarily complicated method of converting units of alcohol per liter of breath into the current standard of .08% blood alcohol per milliliter of blood. AB 4318 simply speeds up the effective date to January 1, 1991, in an effort to provide relief to our beleaguered DUI trial process. [¶] [] SB 1119 set the standard for breath alcohol content at grams of alcohol per 210 liters breath or grams of alcohol per 100 milliliters of blood. AB 4318 merely speeds up the effective date of this clarifying language. [¶] AB 4318 provides a necessary tool in our ongoing battle against drunk drivers." The intent of AB 4318 to eliminate conversion and, instead, alternatively define driving under the influence "in terms of the concentration of alcohol found in the breath when breath analysis is used," is thus abundantly clear; it is, in fact, explicit. In People v. Bransford (1994) 8 Cal.4th 885, 890 [35 Cal. Rptr.2d 613, 884 P.2d 70], the Supreme Court stated that there is only one reasonable manner in which to read the 1990 amendment, and that is that "the Legislature intended the statute to criminalize the act of driving either with the specified blood-alcohol level or with the specified breath-alcohol level." Consequently, the trial court did not err in holding that evidence of the inaccuracy of the 2,100:1 partition ratio, when applied to defendant under the section 23152, subdivision (b) count, was irrelevant. Apart from being irrelevant in the sense of being unnecessary under the current legislative scheme, the proffered evidence is also irrelevant in another respect. Defendant's postarrest breath test, which showed alcohol 692 concentrations of .11 percent and .10 percent, was taken approximately six hours after consumption of the first beer, three hours after consumption of the second and third beers, and one to one and a half hours after consumption of the third beer. The test was therefore taken after most of the alcohol, if not all, had been fully absorbed into defendant's bloodstream. Gigiere had testified that, in the case of beer, alcohol absorption reaches its peak from "30 to 180 minutes, 73 minutes average on a [sic] empty stomach. Food would make it longer." On the other hand, the breath test performed by Gigiere on November 24, showing defendant's partition ratio at 1329:1, was conducted 20 minutes after the measured consumption of alcohol under controlled conditions. It is evident that defendant's physiological condition at the time Gigiere administered his breath test is not comparable to defendant's physiological condition at the time Wowak administered the postarrest breath test. Because, as Gigiere testified, a person's partition ratio is "germane to the moment that you test," defendant's partition ratio at the time of Gigiere's test was irrelevant to establish defendant's partition ratio at the time of his arrest. Due Process (3a) Defendant contends next that to prevent him from adducing evidence of the variability between blood- and breath-alcohol measurements is to prevent him from challenging the accuracy of the breath test, and that would be a violation of his state and federal rights to due process and to confront adverse witnesses. We disagree. In arguing due process, defendant cites a number of reasons why breath tests are inaccurate predictors of true alcohol content, among them: "the phase of alcohol absorption, body temperature, the condensation effect, the physiology of human lungs, breathing technique, the blood hematocrit, and residual mouth alcohol." Defendant claims that "[c]ertainly, due process must afford the accused the right to adduce evidence that his or her own blood:breath partition ratio is significantly lower than the assumed 1:2100, particularly if it, combined with other evidence, establishes that his or her alcohol content was below .08 percent." The flaw in this argument is the assumption that the 1990 amendment requires the alcohol content in the breath to be quantitatively equivalent to the .08 percent alcohol content in the blood. As discussed, there is no such requirement. The statutory scheme under the 1990 amendment is for the blood-alcohol ratio to apply when blood test is used, and for the breath-alcohol ratio to apply when breath test is used, regardless of their conversion values. 693 When the Legislature enacted the 1990 amendment, it was aware of the "complexities" of converting breath-alcohol values to blood-alcohol values. Indeed, it was precisely because of those complexities that the Legislature decided to eliminate the conversion requirement, accepting as sufficient for defining legislative policy a prohibition on driving based on the presence in a person's breath of a certain amount of alcohol. (4) The Legislature's power to regulate driving is beyond constitutional challenge. "[T]he area of driving is particularly appropriate for extensive legislative regulation, and ... the state's traditionally broad police power authority to enact any measure which reasonably relates to public health or safety operates with full force in this domain." (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 74 [177 Cal. Rptr. 566, 634 P.2d 917].) "Surely, the regulation of drinking drivers in a state that experienced 338,344 arrests for `drunk driving' in 1982 is well within the legitimate police power of the Legislature." (Burg v. Municipal Court, supra 35 Cal.3d at p. 267, fn. omitted.) The fact that the current state of scientific knowledge has not settled the ongoing scientific debate as to the best method of measuring inebriation does not preclude the Legislature from regulating driving based on conflicting scientific theories. It has been held that "where scientific opinions conflict on a particular point, the Legislature is free to adopt the opinion it chooses, and the court will not substitute its judgment for that of the Legislature. [Citation.]" (State v. Brayman (1988) 110 Wn.2d 183, 193 [751 P.2d 294, 300].) Courts "cannot[] arbitrate scientific disputes." (People v. Lepine, supra, 215 Cal. App.3d at p. 100.) Although the reliability of breath tests has been questioned by some experts, other experts have endorsed such tests as the more reliable measure of the amount of alcohol affecting the brain. As discussed by a New Jersey court in State v. Downie (1990) 117 N.J. 450 [569 A.2d 242, 250 (90 A.L.R.4th 135): "In light of the scientific and legislative evidence, we find unpersuasive the argument that blood should be the sure and ultimate measure of inebriation. Blood, itself is not monolithic. Venous blood differs from the arterial blood, which actually takes alcohol to the brain. Venous blood may be far less accurate as an indication of the amount of alcohol affecting the brain than breath in the absorptive phase. Given the fact that the legislature desired to bar driving while intoxicated, it appears logical that the blood contemplated was the arterial blood, which takes alcohol to the brain. Because arterial blood is practically unobtainable, then breath, not venous blood, is the most consistently accurate reflection of the concentration of alcohol affecting the brain. Thus, the legislative and judicial reference to `blood' is not an intended concession that blood tests are the preferred method for ascertaining inebriation." (Fn. omitted.) 694 Indeed, the experts cited in the hearing notes of California's Assembly Public Safety Committee, Senate Rules Committee, and Senate Judiciary Committee, recommended that blood tests as a method of measuring inebriation be abandoned in favor of breath tests. However, instead of abandoning the blood test in favor of the breath test, the Legislature decided to adopt both tests and to allow their use on an alternative basis. (5) Whether the course chosen by the Legislature is sound is not for the courts to review. "The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute. [Citations.]" (Hale v. Morgan (1978) 22 Cal.3d 388, 398 [149 Cal. Rptr. 375, 584 P.2d 512].) (3b) In Burg v. Municipal Court, supra, 35 Cal.3d at page 269, the court held that the 1981 version of section 23152, subdivision (b), met the due process requirement of being "definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt." Because the 1990 amendment is similar to the 1981 version for purposes of due process analysis, we must likewise reject defendant's present due process challenge. There is, however, a kind of due process challenge that was not foreclosed by Burg. Defendant is not precluded from questioning the reliability of the instrument used or the procedure followed. (People v. Bransford, supra, 8 Cal.4th at p. 893.) In this case, however, the People presented evidence to show that the breath analyzer used was operating properly, that Wowak was qualified to administer the test, and that Wowak followed prescribed procedures. Defendant interposed no challenge to this evidence. Defendant cannot therefore complain that his due process rights were violated in this respect. Mandatory Presumption (6) Defendant contends that unless defendants are permitted to challenge the blood:breath partition ratio, the 1990 amendment creates an irrebuttable, conclusive presumption that breath-alcohol levels are accurate and necessarily translate into blood-alcohol levels at a ratio of 1:2,100. Defendant argues that under the trial court's interpretation of the 1990 amendment, the trier of fact must presume an element of the offense, specifically blood-alcohol level in excess of .08 percent, from the evidentiary fact of a breath-alcohol level in excess of .08 percent. 695 The Supreme Court recently settled this question in People v. Bransford, supra, 8 Cal.4th 885. There it held that the 1990 amendment "did not presume that the driver was intoxicated or `under the influence'; instead, it defined the substantive offense of driving with a specified concentration of alcohol in the body. Thus, it did not create an irrebuttable conclusive presumption." (People v. Bransford, supra, 8 Cal.4th at pp. 892-893.) Equal Protection (7a) Defendant contends that to interpret the 1990 amendment as creating a new offense of "excessive breath-alcohol" would violate equal protection because similarly-situated individuals would be held to different standards of conduct based on the arbitrary factor of which test was given. The contention is without merit. (8) The essence of equal protection is that "persons similarly situated with respect to the legitimate purpose of the law receive like treatment." (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578 [79 Cal. Rptr. 77, 456 P.2d 645].) "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]" (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal. Rptr. 317, 601 P.2d 549], fn. omitted.) (7b) Under the 1990 amendment, the persons similarly situated are drinking drivers. The amendment does not treat any member of that group differently. Any member of the group has the same right as any other member to elect a breath test or a blood test. To demonstrate unequal protection, defendant asks us to consider two identical persons, twins, each with a true blood-alcohol concentration of .07 percent and a true breath-alcohol content of .09 percent. Defendant argues that hypothetically if one twin took a breath test and the other a blood test, the twin taking the blood test would go home while the twin taking the breath test would go to jail. The argument is inappropriate. "The rule is well established ... that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. [Citations.]" (In re Cregler (1961) 56 Cal.2d 308, 313 [14 Cal. Rptr. 289, 363 P.2d 305].) *696 Moreover, so long as persons in the same group are not discriminated against in the choice of tests to take, there is no denial of equal protection. "`The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.' ..." (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 297 [124 Cal. Rptr. 204, 540 P.2d 44], citation omitted.) As stated in People v. Enriquez (1977) 19 Cal.3d 221, 229 [137 Cal. Rptr. 171, 561 P.2d 261]: "The equal protection clause does not assure defendant of the same treatment as all other felons; it assures him only ... that he will receive like treatment with all other persons similarly situated." "[I]t is not a denial of equal protection that one guilty person is prosecuted while others equally guilty are not. [Citations.]" (People v. Tallagua (1985) 174 Cal. App.3d 145, 150 [219 Cal. Rptr. 754].) We conclude the 1990 amendment does not violate the state and federal equal protection clauses. DISPOSITION The judgment is affirmed. Cottle, P.J., and Elia, J., concurred. A petition for a rehearing was denied April 26, 1995, and appellant's petition for review by the Supreme Court was denied June 28, 1995. NOTES [1] Further statutory references are to the Vehicle Code unless otherwise stated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2264187/	33 Cal.App.4th 245 (1995) 39 Cal. Rptr.2d 292 MEL DONEY et al., Plaintiffs and Appellants, v. TRW, INC., Defendant and Respondent. Docket No. H011835. Court of Appeals of California, Sixth District. March 21, 1995. 247 COUNSEL Liccardo, Rossi, Sturges & McNeil, Gregory D. Hull and Laura Liccardo for Plaintiffs and Appellants. Berliner & Cohen, William J. Goines, Nancy J. Johnson and Thomas P. Murphy for Defendant and Respondent. [Opinion certified for partial publication.[]] OPINION MIHARA, J. In February 1988, Richard Wade Farley killed numerous employees of ESL during a murderous rampage in ESL offices in a building 248 owned by ESL. Plaintiffs are the heirs of some of the ESL employees killed by Farley. Plaintiffs brought a wrongful death action against defendant TRW, Inc., and its wholly owned subsidiary ESL for negligence and premises liability. Summary judgment was entered in favor of ESL based on the exclusive remedy provisions of the Workers' Compensation Act (Lab. Code, § 3602). Defendant TRW thereafter obtained a summary judgment in its favor. Plaintiffs appeal contending that there were triable issues of material fact which precluded summary judgment in TRW's favor. The critical issue on appeal is whether an action can proceed against a parent corporation on an alter ego theory for its subsidiary corporation's conduct when the subsidiary corporation is shielded from such an action by the exclusive remedy provisions of the Workers' Compensation Act. Plaintiffs also claim that summary judgment was precluded because there were disputed factual questions underlying their claim that TRW was directly liable to them because it voluntarily undertook to protect ESL's employees and negligently failed to do so. We affirm the judgment. ANALYSIS A. Standard of Review Appellate review of a summary judgment is de novo. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal. App.3d 1071 [258 Cal. Rptr. 721]; Barisich v. Lewis (1990) 226 Cal. App.3d 12, 15 [275 Cal. Rptr. 331].) "First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.... [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor.... [¶] [If] a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App.3d 1061, 1064, 1065 [225 Cal. Rptr. 203].) B. Alter Ego Theory Not Viable (1a) Plaintiffs' primary theory of liability was that TRW was liable to them because TRW was the alter ego of ESL, plaintiffs' decedents' allegedly negligent employer. This theory is not legally viable. (2a) "The essence of the alter ego doctrine is that justice be done." (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 301 [216 Cal. Rptr. 443, 702 P.2d 601].) 249 "The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff's interests." (Id. at p. 300.) The critical question is "`whether in the particular case presented and for the purposes of such case justice and equity can best be accomplished and fraud and unfairness defeated by a disregard of the distinct entity of the corporate form.'" (Id. at p. 301.) (3) A parent corporation may be deemed the `alter ego' of its subsidiary corporation only if there is "such unity of interest and ownership that the separate personalities of the [subsidiary] and the [parent] no longer exist" and it appears that "`if the acts are treated as those of the [subsidiary] alone, an inequitable result will follow.' ..." (Id. at p. 300, citation omitted.) "[T]he corporate wall [will] be breached. Yet the wall remains: the parent is liable through the acts of the subsidiary, but as a separate entity." (Id. at p. 301.) (2b) The alter ego doctrine is strictly limited by the demands of equity; it applies "only in narrowly defined circumstances and only when the ends of justice so require." (Id. at p. 301.) The alter ego doctrine will only be applied to avoid an inequitable result. Alter ego is essentially a theory of vicarious liability under which the owners of a corporation may be held liable for harm for which the corporation is responsible where, because of the corporation's utilization of the corporate form, the party harmed will not be adequately compensated for its damages. (Mesler at pp. 300, 302-304.) (1b) In this case, ESL is the corporation which utilized the corporate form and was allegedly responsible for the harm suffered, and TRW is the owner of ESL. However, the equitable principles underlying the doctrine of alter ego preclude holding TRW liable for the harm for which ESL was responsible. All California employers are required to "secure the payment" of workers' compensation benefits. (Lab. Code, § 3700.) Ordinarily, the employer meets this obligation by obtaining a workers' compensation insurance policy. (Lab. Code, § 3700, subd. (a).) If the employer satisfies this obligation and its employee suffers harm in the course of the employment, workers' compensation benefits are the exclusive remedy available to that employee, the employee is not permitted to bring a legal action against the employer for damages arising from this harm, and the employer is also shielded from an action for equitable indemnity. (Lab. Code, §§ 3600, 3706, 3864.) ESL satisfied its obligation to "secure the payment" of workers' compensation benefits to its employees. Consequently, no legal action could be brought against ESL for harm suffered by its employees in the course of their employment. It is undisputed that the harm for which plaintiffs seek compensation in this action was suffered by ESL's employees in the course of their employment. The question presented here is whether the owner of a corporation can be held vicariously liable under the equitable doctrine of alter ego for damages 250 suffered by the employees of the corporation in the course of their employment where the corporation has satisfied its obligation to these employees by securing the payment of workers' compensation benefits. We conclude that the owner cannot be held vicariously liable under the equitable doctrine of alter ego in this situation for many of the same reasons that the hirer of an independent contractor cannot be held vicariously liable to the independent contractor's employees under the equitable doctrine of peculiar risk. (Privette v. Superior Court (1993) 5 Cal.4th 689 [21 Cal. Rptr.2d 72, 854 P.2d 721].) The California Supreme Court held in Privette v. Superior Court, supra, 5 Cal.4th 689 that, where an independent contractor has satisfied its obligation to secure the payment of workers' compensation benefits, its employee cannot hold the person who had hired the independent contractor vicariously liable under the equitable doctrine of peculiar risk for harm suffered by the employee in the course of employment. The reasons offered by the California Supreme Court for its refusal to permit liability under the doctrine of peculiar risk in Privette mirror our reasons for refusing to permit liability under the doctrine of alter ego here. (4) Peculiar risk, like alter ego, is a theory of vicarious liability which is applied to avoid inequity. (Privette v. Superior Court, supra, 5 Cal.4th at pp. 694-695.) "[I]n its original form the doctrine of peculiar risk made a landowner liable to innocent bystanders or neighboring property owners who were injured by the negligent acts of an independent contractor hired by the landowner to perform dangerous work on his or her land. In turn, the landowner could sue the contractor for equitable indemnity." (Id. at p. 696.) The peculiar risk doctrine was created "to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor's solvency in order to receive compensation for the injuries." (Id. at p. 694.) Eventually, in 1962, the California Supreme Court expanded the peculiar risk doctrine to permit an independent contractor's employee to recover tort damages from the person who hired the independent contractor. (Id. at p. 696.) In Privette, the California Supreme Court overruled its 1962 expansion of the peculiar risk doctrine. The court ruled that since the employee of an independent contractor could not recover in tort from the independent contractor, because the independent contractor was his employer and his recovery was therefore limited by the Workers' Compensation Act's exclusive remedy provisions, the employee could not be permitted to obtain tort damages from the hirer of the independent contractor based on the equitable doctrine of peculiar risk. First, the court explained that permitting application of a theory of vicarious liability under these circumstances "produces 251 the anomalous result that a nonnegligent person's liability for an injury is greater than that of the person whose negligence actually caused the injury...." (Privette v. Superior Court, supra, 5 Cal.4th at p. 698.) Second, permitting employees of independent contractors to recover under this theory of vicarious liability "would give those employees an unwarranted windfall." (Id. at p. 700.) "[T]o permit such recovery would give these employees something that is denied to other workers: the right to recover tort damages for industrial injuries caused by their employer's failure to provide a safe working environment. This, in effect, would exempt a single class of employees, those who work for independent contractors, from the statutorily mandated limits of workers' compensation." (Id. at p. 700.) Third, because equitable indemnity cannot be obtained from the negligent employer, application of the peculiar risk doctrine to permit the hirer to be held liable in tort "places an onerous burden on someone who is `fault-free.'" (Id. at p. 701.) These three reasons convinced the California Supreme Court that employees should not be permitted to recover tort damages under the equitable doctrine of peculiar risk where workers' compensation benefits are available to them. "[T]he workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk: It ensures compensation for injury by providing swift and sure compensation to employees for any workplace injury; it spreads the risk created by the performance of dangerous work to those who contract for and thus benefit from such work, by including the cost of workers' compensation insurance in the price for the contracted work; and it encourages industrial safety." (Privette v. Superior Court, supra, 5 Cal.4th at p. 701.) Accordingly, the doctrine of peculiar risk is unavailable where "the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers' compensation coverage...." (Id. at p. 702.) (1c) Similar reasoning applies here. In this case, plaintiffs brought a tort action against the owner (TRW) of the corporation (ESL) which had employed their decedents. Plaintiffs were barred from bringing a tort action against ESL because ESL was covered by the Workers' Compensation Act's exclusive remedy provisions. Instead, plaintiffs sought to hold TRW vicariously liable through the equitable doctrine of alter ego. Like the peculiar risk doctrine addressed in Privette, the alter ego doctrine is an equitable theory of vicarious liability. Each of the Privette for refusing to permit imposition of vicarious liability is equally applicable here. First, as in Privette, permitting the application of a theory of vicarious liability under these circumstances would produce "the anomalous result that a nonnegligent person's [TRW's] liability for an injury is greater than that of the person [ESL] whose negligence 252 actually caused the injury...." (Privette v. Superior Court, supra, 5 Cal.4th at p. 698.) Second, also as in Privette, permitting employees of subsidiary corporations to recover from the corporate owner under an alter ego theory of vicarious liability "would give those employees an unwarranted windfall" by "exempt[ing] a single class of employees, those who work for [corporations], from the statutorily mandated limits of workers' compensation." (Id. at p. 700.) Finally, because of the unavailability of equitable indemnity (Lab. Code, § 3864), application of the alter ego doctrine to permit the owner of the subsidiary corporation to be held liable in tort "places an onerous burden on someone who is `fault-free.'" (5 Cal.4th at p. 701.) The owner of a corporation incurs the expense of workers' compensation insurance as a corporate expense which reduces any profits reaped by the owner from the corporation in return for ensuring "swift and sure compensation to employees for any workplace injury" and encouraging industrial safety. Consequently, there is no justification for holding the owner of the corporation liable in tort for workplace injuries to employees of the corporation. Because this scenario is equitable, an employee of the corporation cannot utilize the doctrine of alter ego to hold the owner of the corporation liable in tort for a workplace injury where the corporation has ensured the payment of workers' compensation benefits. C. TRW Did Not Independently Breach a Duty to Decedents to Provide Them With Reasonable Security[] .... .... .... .... .... .... .... . CONCLUSION The judgment is affirmed. Cottle, P.J., and Wunderlich, J., concurred. Appellants' petition for review by the Supreme Court was denied July 20, 1995. NOTES [] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part C. [] See footnote, ante, page 245.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342676/	224 S.C. 74 (1953) 77 S.E.2d 354 STATE v. CORN. 16778 Supreme Court of South Carolina. September 10, 1953. 75 76 Messrs. Theodore & Alexander, of Columbia, for Appellant. Mr. Robert W. Hemphill, Solicitor, of Chester, for Respondent. 77 Sept. 10, 1953. TAYLOR, Justice. This appeal arises out of appellant's motion for a new trial on after discovered evidence which was refused. The appellant, Nathan T. Corn, was first tried and convicted on December 6, 1948, of the crime of murdering George C. Beam, Jr., and sentenced to die in the electric chair. He successfully appealed to this Court and because of certain errors was granted a new trial. 215 S.C. 166, 54 S.E. (2d) 559. In November, 1949, he was again put on trial which resulted in a verdict of "guilty with recommendation to mercy" and was sentenced to imprisonment in the South Carolina State Penitentiary for life. At both trials he was represented by able and experienced counsel. In May, 1952, appellant, through counsel other than that which represented him during the trials, served notice of motion upon the Honorable Robert W. Hemphill, Esquire, Solicitor, that he would move before the Honorable Joseph R. Moss, Judge of the Sixth Judicial Circuit, for a new trial on newly or after discovered evidence. The matter was heard by Judge Moss on July 11, 1952, solely upon affidavits presented by attorneys. In the course of the hearing, defendant's counsel requested and was granted ten days additional time to file other affidavits with respondent being permitted to file counter affidavits. Both sides availed themselves fully 78 of the opportunity and numerous affidavits were filed. This was in line with the decision of this Court in State v. Jones, 89 S.C. 41, 71 S.E. 291. Subsequently, on August 20, 1952, Judge Moss filed his order refusing the motion for a new trial and it is from this order that the Defendant now appeals. The first question for determination is whether or not at the hearing of the motion for a new trial on newly or after discovered evidence the Court erred in refusing to permit the defendant to be present in person at the hearing, in violation of the Sixth Amendment to the Constitution of the United States which provides that one charged with a crime is entitled "to be confronted with the witnesses against him" and Article 1, Section 18, of the South Carolina Constitution of 1895, which embodies a similar provision. The notice served by appellant was to the effect that such motion would be based upon the affidavits attached thereto and such other evidence produced at the hearing. The record does not disclose that there was contemplated either by appellant or his counsel that the motion would be heard on anything other than affidavits. In appellant's affidavit he asked only to be present in person but did not ask to be heard, on the other hand, he purported to know nothing about the alleged confession. Appellant's affidavit submitted with the original motion made no request to be present and there was no contention that there was any new or other evidence that appellant could submit if he were present; and at no time was any request made by appellant to be heard in person on the motion, the statement being: "your deponent is informed and believes that he is entitled to be present in person at such hearing on July 11, 1952, and that your deponent, as the accused, and moving party, has a right under the Constitution of the United States and the Constitution of the State of South Carolina of 1895 to be present at such hearing." What transpired at this hearing could under no circumstances be termed a trial or part of a trial. No indictment was proffered and no testimony taken 79 by examination or cross-examination, no jury selected, charged or sworn, and of course, by no stretch of the imagination could the proceeding be termed a portion of the trial at which he was sentenced, State v. Haines, 36 S.C. 504, 15 S.E. 555; State v. Atkinson, 40 S.C. 363, 18 S.E. 1021; State v. Farne, 190 S.C. 75, 1 S.E. (2d) 912. The following statement from State v. Suber, 89 S.C. 100, 71 S.E. 466, 468, affords some light on this subject: "Mr. Greenleaf in his admirable work on the Law of Evidence in volume 1, page 1620, subd. 4, observed: `Does the hearsay rule i. e., as involving the right of cross-examination, and incidentally of confrontation, of witnesses require that in criminal cases (where the constitution secures the right, and therefore overrides any statutes regulating views), the defendant should be present at a view? The requirement of confrontation implies merely, that the party shall have the opportunity of cross-examining witnesses, but merely the inspection of the thing itself, which is the subject of the controversy; so that the constitutional principle cannot properly apply to render improper a view at which the accused is not present. This is the result reached by the better judicial opinion; but there are courts which take the contrary view.' "The principles we deduce from the authorities are (1) that in a constitutional sense, the viewing of the premises by the jury is not the taking of testimony; (2) that the prisoner is not thereby deprived of the right to confront or cross-examine any witness in the case; and (3) that it cannot reasonably be supposed that the prisoner's rights would in any respect be prejudiced by the absence of the judge, if the jury merely inspected the locality. Of course, if the orders of the presiding judge are disobeyed to the prejudice of the defendant, the court would take such steps as would be deemed necessary to protect his rights." The foregoing is supported by State v. Faires, 125 S.C. 281, 118 S.E. 620, 621, wherein this Court said: 80 "Neither is defendant's personal presence at the hearing of such motions essential within the meaning of the common-law rule, which affords to a defendant charged with a felony the right to be personally present at his trial. * * * As the trial, in the sense contemplated, must have necessarily, been terminated when a motion for new trial or in arrest of judgment is made * * , so the trial of the issues joined between the defendant and the state which is the trial sought to be changed as to venue or continued by these motions has not commenced and is necessarily still pending when the motions are made. * * "He was deprived by his absence of no right, either technical or substantial, * * ." Analogous is the case of Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 335, 78 L. Ed. 674, 90 A.L.R. 575, in denying the accused's demand that he be present at the viewing of the scene by the jury: "A fertile source of perversion in constitutional theory is the tyranny of labels. Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form, though it has been wrought under the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at all, to the reasons that brought the rule into existence. A defendant in a criminal case must be present at a trial when evidence is offered, for the opportunity must be his to advise with his counsel. Powell v. Alabama, [287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527], supra, and cross examine his accusers, Dowdell v. United States [221 U.S. 325, 31 S. Ct. 590, 55 Lans. Ch. 5d. 753], supra; Com. v. Slavski [245 Mass. 405, 140 N.E. 465, 29 A.L. R. 281], supra. Cf. Felts v. Murphy, 201 U.S. 123, 26 S. Ct. 366, 50 L. Ed. 689. Let the words `evidence' and `trial' be extended but a little, and the privilege will apply to stages of the cause at which the function of counsel is mechanical or formal and at which a scene and not a witness is to deliver up its message." 81 Applying the foregoing principles to the question at bar, it would seem that (1) this was not a trial and no part of a trial; (2) there is no affidavit of the defendant or request of defendant to be heard in person; (3) that the affidavit of defendant himself stated that he knew nothing of the claimed confession about which this motion revolved; (4) there was neither notice of, nor effort to, cross-examine any witness, no notice of request for, or effort to examine or cross-examine any of the persons whose affidavits were submitted pursuant to the original notice of motion. It, therefore, is the conclusion of this Court that the presence of defendant was neither necessary nor material and that the fact that he was not present deprived him of no substantial or constitutional right. In an appeal from an order denying a motion for a new trial, it is settled by numerous cases that this Court may not nicely weigh the testimony upon which such a motion is based; that power rests in the Circuit Court, for it has at hand the instrumentalities with which to exercise the power, and that Court's settled judgment ought not to be impeached except for errors of law, or for an abuse of its discretion. State v. Griffin, 100 S.C. 331, 84 S.E. 876. The hearing Judge, being bound by the foregoing principle of law, was required to look into the nature of the motion and the character of the evidence to support it. This motion originally revolved around a typewritten statement on each page of which appeared the signature of W.J. Corn, the deceased father of the appellant, Nathan T. Corn. The uncontradicted facts appeared to be that on May 20, 1952, one of appellant's present attorneys not the one who represented him at the other two trials, his mother, Mary Corn, one Harry E. Crump and J.L. Lingerfelt, appeared at the office of the Honorable Robert Hemphill, Solicitor, and presented him with an envelope on which was written in longhand, "give this to a good lawyer and have him check 82 everything good the inclosed statement is the true facts in this case wrote and signed by me W.J. Corn." Inside of this envelope was another envelope, designated No. 2, on which were the signatures of W.J. Corn, Rev. Harry Erskine Crump, J.L. Lingerfelt and C.A. Bush and enclosed in this envelope was the following two page typewritten statement which, at the request of Mrs. Corn, the Solicitor opened and read and then passed to appellant's attorney: "I have a owful burdon i have carred every sence the death of George Beam. I could not tell no one not even my good wife, but I am soon to go out to meet a Just God, I cant meet him with this on my heart, I cant die with out making this confession, its always been a mystry who killed George Beam. well I am the Man. on satarday night of June (5 1948 George Beam: come into my place, that was my filling station on the charlet hieway and was so drunk he could harly walk he demanded of me to let him have some money i said george you owe me so much i just cant let you have any more untell you pay me that you owe me. he then cursed me with an-Oth and said if you dont let me have it i will kill you and take it all out of the cash drower and what you have two, I told him to get out of my place he turneb and started out and as he went out he said I'll get you old man; he went out and got in a car that was waiting on him in frunt of my place some man was driving the car as he drove off i seen it had a North Carolina tag on the car thay went back toward Rock Hill i was so mad I grabed this German Luger Pistol the oficers took from my home I got in the red pick up truck and took off after them i followed them to the Bulk Plant I parked out side the gate untell I seen george get out of the car and went in at the ofice door this car drove off I drove the truck on in side and up to the plat-form of the Bulk-plant. I went in at the sliding door george was coming from thefrunt ofice I said here's the old man and i am redy to have it out and as he started by me i grabed him 83 by the colar and said you are going to pay me now. we are going to settle up once and for all. he said i dont owe you any thing and i wont pay you any thing that made me so darn mad knowing he owed me as much as he did i had got up the coldest nights ever come and let him in and he would just want to get a little money. then he turned toward the sliding door he cursed me againfor a sunof a-bitch and i said George if you dont pay me now you will never live to pay no one. that is when (I W.J. Corn) shot george beam in the back and "/s/ W.J. Corn ___________ W.J. Corn "Killed him with this German Luger Piston I crated the body in the bulkplant i hurred fast as possible i was afraid his friend in the N.C. car would come back after George i loded the crate on the red truck by rolling it over untell i could get it in the truck i then cleaned up all the blood all of the floor with some old waste and rags as i new it would haft to be cleaned up at once or it might not come up, so i got it all cleaned up i throad the waste and every i had used in the truck i then took off at all the red truck would make to Crowders Creak. i drove across the bridge and turned around and drove back up on the bridge and as close as possible to the edge of that railing on the bridge i stopped i rolled the crate over one time and it hit the edge of the truck. then i rolled it one more time and it lay on the railing of the bridge. i droped it in the water and i got away from there soon as i could i went back to my filling station on the charlett hie-way but did not open up any more that night but i drove the truck around to the back of my house and cleaned the truck and burnt all of that waste and rags i had used to clean up the blood with so as that if my wife did go to put any thing in the trash can she would not find-them. on sunday morning of June (6-1948 i went back to the bulk-plant to see if i had left 84 one stain for i did not want any Innonce person Involved in this criam. Nathan T. Corn my son is Innocent of this crime I am sarry for all the truble i have coused; But God has delivered my soul and i will soon go out to meet my maker; "/s/ W.J. Corn ___________ W.J. Corn "I am the man that shot and killed George Beam on June (5-1948 with the German luger pistol No. S.H.2025-410. "I Swear that the above statement was wrote by me and the facts contained there in are true in this case. "/s/ W.J. Corn ___________ W.J. Corn "This was Rot.12,1951" According to the affidavits of Mary Corn, Harry Crump, J.L. Lingerfelt, and one Bush none of them had ever seen the typewritten statement. Crump, Lingerleft and Bush (whose names appeared on envelope No. 2) said they had signed the envelope approximately three weeks before W.J. Corn died at the request of Mary Corn and that there was nothing in the envelope at the time. Crump and Lingerfelt stated that when they signed their names on the envelope they were of the opinion that W.J. Corn was making provisions for the care of Mrs. Corn after his death as he stated that "he had the papers in order and Mrs. Corn would be taken care of." Subsequent to the handing of these two envelopes to the Solicitor, the matter was taken up with Deputy Sheriff Allison and Lt. Fred Wolfe who proceeded to contact S.C. Penitentiary officials, Capt. Ashemore and Officers Dawkins and Thompson. Appellant's cell was searched and the following letter in an envelope postmarked May 25, 1952, Rock Hill, S.C. was found: 85 "226 Columbia Ave Rock Hill, S.C. May 25-1952 "Mr. Nathan T. Corn 1515 Gist Street Columbia, South Carolina "Dear son, this lonly sabith after noon i will try to write you a few lines in answer to your i received friday glad to hear from you and that you was well. I injoyed the visit with you yestarday but yet it was sad of course we had to talk about loosing poor dady. but son he is at rest and is out of his suffering but Oh how lonly and sad am I in this old dard world senly alone. Son Juney and his wife stayed with me last night and thay have just left and gone home and i am alone, gess sis will be over some time this after noon. Nathan i intended to come down this morning but i was not able to make the trip and harrison promised me he would go and as usel grace was gone down in the contry to her mother's and harrison and boby was alone and thay sleep untell it was two late to make the trip down there. but nathan i have talked to him and i dont think you have any thing to werry about. he had kinly got settled sence he went back to work last week. so he is all right i just come plain and told him what i new and all i new. so he was kinly got recknised. and Nathan i went to see Mr Kale yestarday and i told him what you said and he told me he was going over to see you yestarday eving and would have a long talk with you/ but i never got to see any of the papers you ask me to see he said they had not been sent to him yet but he was looking for then in the mail yestarday he ask me if i ever stayed up and keep the filling station open at night when you and Dady was away i told him No that you or dady would never let me stay open at night with out one of you was there. Oh he ask me a few question but i could gladly answer every one, so i was told that i would get a copy of every thing the first of the week. so i hope i do i just cant understand. 86 well son i have just been out to the Cemetery and looked at dady's grave. i am sarry son i did not bring the pictures in with me yestarday for you to see. I had then madee for you. i have two of dady in the castet and one with the castet closed and of the flowers and son he just looks as if he was redy to speak to me i would not take any thing for then. i just thought that it would be the only way you would ever have of knowing how your Dady was put away. but son when you see it you will know i put him away nice people have spoke of how nice i put him away. but that was the last thing i could do for him. it cost me && 760.21 but i dont mind it i only had five hundred inshurence on him but i will get it all payed. I am going back to work to marrow Monday night if any one wants to call me thay will haft to call me after four in the after noon, or at seven thirty in the morning befrew i go to bed. well son gess i will stop as i must write Roy a few lines, so keep your head up and if you ever did try to prayer do son Prayer for your mother, so answer soon and Lots of love from Mother God bless you son, "fron Mary Corn" At the first hearing in York on July 11, and subsequently during the time allotted for additional affidavits there was no affidavit denying the authenticity of this letter. It further appears that there was no denial that the statement was signed by W.J. Corn or that the letter was written by Mary Corn to Nathan Corn at the State Penitentiary. During the hearing, the Court's attention was invited to numerous similarities and peculiarities contained in the statement and the letter when compared. These similarities appear as follows: 1. The use of small "i" in both documents. 2. The lack of use of capital letters when spelling days of the week in both. 3. The comparison yestarday in the letter and Satarday in the statement showing the use of "a" in the second syllable of each. 87 4. The spelling of the word "until" as "untell" in the letter from Mrs. Corn and written untell in the statement. 5. The spelling of the word "sorry" as "sarry" in the letter of Mrs. Corn and the spelling of the same word as "sarry" in the statement. 6. The use of the word "two" for "too" in the letter and in the statement. 7. The use of the word "new" for "knew" in the Mary Corn letter and in the statement. 8. In the statement between lines 5 and 6 there is typed in "June (5 1948 George Beam," indicating the statement was copied from a prepared proof. 9. The lack of punctuation between sentences in both the letter and the statement. 10. The fact that most sentences in both letter and statement begin with "i". 11. The use of the dash () in the date on the letter and the inserted date on the statement. 12. The use of the spelling "sence" in the letter and in the statement for the word "since". 13. The use of the spelling "redy" for ready in both letter and statement. 14. The use of the spelling "thay" for they in both letter and statement. 15. The way anything is spelled "any thing" with spaced words, instead of one word, in both letter and statement. 16. The use of the expression "haft" for have to in both letter and statement. 17. The use of the word "dont" without apostrophe as punctuation for don't in the letter and statement. 18. The use of capital I for the number "I" (one) in both the letter and the statement. The foregoing is evident from a comparison of the statement and the letter heretofore referred to but also introduced into the record were some "slips" in the handwriting of W.J. Corn that show that he spelled George "gorg" and pickup "pickaup" and "pickop" while in the statement or 88 alleged confession George and pickup are both spelled correctly. Considering all of the foregoing along with the actions of Mary Corn in the face of her statement that she knew nothing of the contents of the envelope and the fact that W. J. Corn sat beside his son and heard him sentenced to be executed and later at the second trial heard him sentenced to life imprisonment for something which it is now contended he himself did together with the fact that he died approximately three weeks after he purportedly wrote this confession from the effects of a malignancy, one is faced with a set of circumstances that must be viewed with the greatest suspicion, State v. Mathis, 174 S.C. 344, 177 S.E. 318. The normal reaction of a parent is to shield the child where possible and it is not unreasonable to suspect this as being the motive behind the alleged confession here. W.J. Corn and his wife both knew he was dying and beyond the reach of the law. The Circuit Judge found as a fact that this statement or purported confession was the handiwork of Mary Corn and there is certainly an abundance of evidence to this effect. The hearing Judge is the determiner of the facts in such matters and unless his findings are influenced or controlled by error of law or unless his conclusions are so illogical and unreasonable as to amount to an abuse of discretion his findings are binding upon this Court, and we are of the opinion that there is ample evidence to sustain his findings and there is no abuse of discretion or error of law here that would warrant this Court in setting aside the order appealed from. Judge Moss in his order went into the matter of whether or not the W.J. Corn statement would be admissible at another trial should one be ordered and his findings are excepted to and made a part of this appeal; however, in our view it is not necessary to pass upon this question for the purpose of determining this appeal. 89 We are of the opinion that all exceptions should be dismissed, the order appealed from affirmed and it is so ordered. BAKER, C.J., and FISHBURNE, STUKES and OXNER, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342677/	88 Ga. App. 697 (1953) 77 S.E.2d 327 ST PAUL-MERCURY INDEMNITY CO. et al. v. IDOV. 34732. Court of Appeals of Georgia. Decided July 14, 1953. Rehearing Denied July 30, 1953. 698 A. Ed Lane, Jr., Hugh E. Wright, Moise, Post & Gardner, for plaintiffs in error. White, Douglas & Arnold, W. Frank Lawson, contra. TOWNSEND, J. The sole issue in this case is the proper computation of the average weekly wages of the deceased employee. The method of computing compensation under Code (Ann. Supp.) § 114-402 is to determine the average weekly wage as follows: "1. If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said 13 weeks. 2. If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph." Since the deceased employee had worked for more than 13 weeks in each of the jobs he held at the time he was killed, and since the second provision of Code § 114-402 may be used only if the first is inapplicable, the average weekly wages must be determined under the first subsection thereof. It then remains to be determined: (1) whether the employee was concurrently engaged in similar employment in each position; and (2) if so, whether the "concurrent similar employment" doctrine should be applied under the terms of the Georgia Workmen's Compensation Act. The employee was engaged in each occupation as a retail sales clerk. His duties were the same to sell items at retail to customers. In two jobs he sold liquor; in the third he sold clothing. There is nothing connected with a clothing store which would make it a more hazardous occupation than that of selling liquor, so far as appears from the record. The employee may therefore be said to have been steadily and concurrently engaged in three jobs, the total of which represented one employment, that of retail salesman, and the sum of his 699 salaries in these three positions constituted his average weekly wages and established his total earning capacity at that time. The mere fact that the total hours worked per week double the time of the average worker represent an incredibly long working day would have no significance, for a workman might (especially in factories working three shifts around the clock) make as much or more by means of overtime work, which would be compensable. In Carter v. Ocean Accident &c. Corp., 190 Ga. 857, 860 (11 S.E.2d 16), it was held: "The courts are not concerned with whether the employee receives more compensation than his wages total. . . The one high aim constituting the foundation of this law is compensation for an injured employee in proportion to his loss on account of the injury. That loss is deprivation of future earnings, and is measured by his proved earning capacity. It of necessity looks to the future. Under the statute authority is given to consider the past only in so far as it reveals a regular earning capacity. We think the fairest yardstick by which his compensation to cover his injury can be measured is what he was able to earn and was actually earning when the misfortune came upon him. Good workmen look to the future with hope of advancement and increased earnings, and the loss sustained by the employee is deprivation of future earnings on the basis of his earning capacity as demonstrated by the regular wage received at the time of the accident." Although this case was written in interpretation of a former statute, and although the present yardstick is now the "average weekly wage" rather than the "regular wage," the language is pertinent and aptly illustrates the spirit of the law. It cannot be doubted that, at the time of his death, this employee's earning capacity was the total of his wages from the three jobs he was doing, just as, in the Carter case, the employee's earning capacity was what he would have earned had he been permitted to work full time, rather than the wage received for part-time employment. Counsel for the defendant in error has ably briefed the statutes and decisions of other states in support of the contention that the employee's earnings, where he is concurrently engaged in similar employment for two or more employers, is the total of the salaries received from each of them. Eight states having similar statutes have adopted this doctrine. Western Metal Supply 700 Co. v. Pillsbury, 172 Cal. 407 (156 P. 491); Moochler v. A. H. Herrick & Son, 247 A.D. 841 (286 N.Y.S. 397); McDowell v. Flatbush Congregational Church, 252 A.D. 799 (298 N.Y.S. 892, 13 N.E.2d 462); In re Howard, 71 Ind. App. 557 (125 N.E. 215); Anderson v. Roberts-Karp Hotel Co., 171 Minn. 402 (214 N.E. 265); Bamberger Electric R. Co. v. Industrial Commission of Utah, 59 Utah 257 (203 P. 345); Wells v. Industrial Commission, 63 Ariz. 264 (161 P.2d 113); Geneva-Pearl Oil & Gas Co. v. Hickman, 147 Okla. 283 (296 P. 954); Fidelity Union Casualty Co. v. Carey (Tex. Civ. App.) 38 S.W.2d 169. Five states have refused to follow this doctrine: DeAsis v. Fram Corp. (R.I.) (81 A. 2d 280); Buehler v. University of Mich., 277 Mich. 648 (270 N.W. 171); Black Star Coal Co. v. Hall, 257 Ky. 481 (78 S.W.2d 343); Quebec's Case, 247 Mass. 80 (141 N.E. 582); Odom v. Galloway Coal Co., 223 Ala. 118 (134 So. 855). None of the statutes construed in these latter cases contained the language "whether for the same or another employer" in referring to the employment upon which compensation should be based, and at least one of the cases bases its distinction upon this ground. Thus there is respectable authority on both sides of the question; but it appears to us that not only the greater weight, but the interpretation more in keeping with the liberal construction awarded uniformly to the Workmen's Compensation Act in this State, demands that we give to this statute the construction placed on it by the full board, which allows to the employee's dependents, or to the employee if he is injured, compensation in direct relation to his earning capacity at the time of the accident. As was stated in Wells v. Industrial Commission, supra: "Where an employee is working for several different employers and is injured, in order that he may be reasonably compensated for the loss of his earning powers, his total wages must be taken into consideration. Any other construction of the statute would result in great injustice and lead to absurdities." The concurrent similar employment doctrine is applied only where the accident arises out of and in the course of the employment while the employee is engaged for an employer subject to the provisions of the Workmen's Compensation Law, and his 701 concurrent work must be similar in character to the work in the course of which the accident was sustained. The judge of the superior court properly affirmed the award. Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/827066/	Order Michigan Supreme Court Lansing, Michigan September 6, 2011 Robert P. Young, Jr., Chief Justice 143077 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: 143077 COA: 297174 Oakland CC: 2009-226963-FC DAVID WAYNE WITKOWSKI, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the April 19, 2011 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 6, 2011 _________________________________________ p0829 Clerk	01-03-2023	03-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342763/	226 Ga. 43 (1970) 172 S.E.2d 428 MORRIS v. YATES et al. 25442. Supreme Court of Georgia. Argued October 15, 1969. Decided January 8, 1970. Rehearing Denied January 26, 1970. George H. Carley. for appellant. Charles D. Read, Jr., for appellees. FRANKUM, Justice. The judgment under review is a summary judgment, granted upon the motion of the plaintiffs based upon the pleadings, ordering specific performance of a contract between the plaintiffs and the defendant whereby the defendant had agreed to sell to plaintiffs a certain described tract of land. Insofar as pertinent, the effect of the plaintiffs' complaint, considered together with their motion for a summary judgment, is that they had, prior to bringing the complaint, "by arrangement with the defendant ... placed in escrow all of the money required by the said contract" and they had "demanded of the defendant that he comply with the contract on his part and proceed to close the sale of the property described in said contract, in accordance with its terms," but the defendant wilfully failed and refused to do so. A copy of the contract was attached to the complaint as an exhibit. 1. The description of the land which the defendant agreed to sell is specific and certain, but an analysis of other terms of the contract shows that they are too uncertain, vague, and indefinite to be specifically enforced. The contract provides that: "The purchase price of said property shall be: eighteen thousand seven hundred dollars, to be paid as follows: $2,000 down payment, $16,700 payable $107.12 per month for 360 months." While the purchase price and the "down payment" under this provision of the contract are definite and certain amounts, the provision with respect to the payment of the balance of the purchase price, to wit: $16,700 is indefinite and uncertain and leaves reasonable grounds for misunderstanding between the parties because the aggregate amount of the deferred payments provided for greatly exceeds the amount of the balance of the purchase price without showing any agreement as to what such excess would consist of, and because it is not stated whether a note or notes would be given for the deferred payments. Crawford v. Williford, 145 Ga. 550 (89 S.E. 488). 2. The contract provides: "Seller agrees to furnish a marketable title to said property and agrees to convey said property by warranty deed to purchaser at time sale is consummated, subject to: 1. All valid restrictions of record; 2. Zoning ordinances affecting the same; 3. Encumbrances as specified in 44 contract." No encumbrance is described in the contract, and when this provision of the contract is considered together with two of the "special stipulations" contained therein, we think it is obvious that there was an existing loan or one to be obtained by the "purchaser" affecting the property in question. Special stipulation No. 2 provides, "This contract subject to buyer selling his present home and realizing at least $2,000 equity," and special stipulation No. 3 provides that "Any excess equity obtained from sale may be used to reduce FHA loan." There is no logical reason for the 3rd special stipulation unless it has reference to an existing loan or one to be obtained affecting the property. If this provision of the contract has reference to an existing loan the contract is indefinite and uncertain in that the amount of the loan, the rate of interest, to whom and where the same is payable, whether the same was to be assumed by the "purchaser" and whether the amount of the deferred payments called for would be affected if the "purchaser" should elect to reduce the loan, is not stated. If this provision has reference to a loan to be obtained it is equally indefinite and uncertain. What the parties contemplated is a mere guess. "If the terms of the contract are such that they can be reasonably misunderstood by the parties, clearly a court of equity has neither the power nor the means to discover the intentions of the parties by mere guess or conjecture." Williams v. Manchester Bldg. Supply Co., 213 Ga. 99, 102 (97 SE2d 129). 3. Assuming that the contract is definite and certain as to the time the parties agreed it would be consummated, one of its terms provides that "seller and purchaser agree that such papers as may be legally necessary to carry out the terms of this contract shall be executed and delivered by such parties at time sale is consummated," but it is nowhere stated in the contract what, if any, papers other than a warranty deed by the "seller" to the "purchaser" would be executed pursuant thereto. Neither is it stated in the contract whether or not the "purchaser" would give a deed to secure debt conveying the property back to the "seller" as security for the deferred payments or was to give him any other kind of security for such deferred payments. Under the terms of the contract if the judgment decreeing specific performance thereof should be allowed to stand, the "seller" could be required 45 to convey the property by warranty deed to the "purchaser" without the purchaser giving to him any note, notes or security for the deferred payments. Such would be inequitable and unjust and specific performance will be refused under such circumstances. Marsh v. Lott, 8 Cal. App. 384 (97 P. 163); Klein v. Markarian, 175 Cal. 37 (165 P. 3); 58 CJ 957, Specific Performance, § 133, n. 4 and 81 CJS 515, Specific Performance, § 40 b (3), n. 81. 4. A court of equity is not authorized to order the specific performance of a contract which is not certain, definite and clear, and so precise in all of its material terms that neither party can reasonably misunderstand it. Studer v. Seyer, 69 Ga. 125, 126; Williams v. Manchester Bldg. Supply Co., 213 Ga. 99, supra. 5. The contract in question is void and the court erred in granting the summary judgment. Judgment reversed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342828/	121 Ga. App. 67 (1970) 172 S.E.2d 858 VEZZANI v. TALLANT et al. (two cases). 44948, 44949. Court of Appeals of Georgia. Argued January 8, 1970. Decided January 28, 1970. James M. McDaniel, for appellant. Candler, Cox, McClain & Andrews, A. Orville Bracey, III, Arthur Gregory, for appellees. JORDAN, Presiding Judge. Fred C. Tallant, Sr., and Dr. M. H. Mason sought to recover the alleged unpaid balance due, plus interest and attorney's fees, on a note executed by Eugene Douglas Vezzani and others. The trial court, sitting without a jury, found for the plaintiffs, and the defendant Vezzani appeals from the order overruling his motion for a new trial and a subsequent order requiring him to post a supersedeas bond. Held: 1. In Case No. 44948 it is contended that the court erred in eliminating the defense of usury. In his pre-trial order of April 28, 1969, the court stated: "The defendant, Eugene Douglas Vezzani, has filed a "Plea of Usury" herein, and the same has been twice amended, most recently on September 19, 1967. The twice amended answer of the defendant Vezzani also contains certain allegations of usury. With regard to them collectively, it is hereby ordered that they be deemed incorporated into the answer of the defendant Vezzani, the practice of special pleading having been abolished by the enactment of the Georgia Civil Practice Act. "The allegations regarding usury by the defendant Vezzani ... [are to the effect that] a prior promissory note executed by the defendant in favor of the plaintiffs was infected with usury, to wit: by the alleged exaction from the borrowers of $4,000 paid as an alleged brokerage fee to Atlanta Seals, Inc. The defendant Vezzani also contends that Atlanta 68 Seals, Inc. is a corporation controlled by the plaintiff Tallant who is holding ... stock in said corporation for his two minor children; the Atlanta Seals, Inc. performed no brokerage and that the foregoing alleged acts were done to ... [circumvent] the usury laws of the State. Taken and construed most favorably to the defendant Vezzani the allegations regarding alleged usury do not amount as a matter of law to usury as denounced by Georgia Code § 57-101. Accordingly it is hereby ordered that the defense of the defendant Vezzani regarding usury be stricken from the pleadings and not considered at the trial." Usury is defined as "the reserving and taking, or contracting to reserve and take, either directly or by indirection, a greater sum for the use of money that the lawful interest." Code § 57-102. But, except as modified by § 3 of the Act of March 8, 1957 (Ga. L. 1957, pp. 331, 334; Code Ann. § 25-324) for transactions of $2,500 or less and not here applicable, a "loan is not rendered usurious by money paid or agreed to be paid others by the borrower in order to obtain the loan." Code Ann. § 57-104. Viewing the allegations in the light of Code Ann. § 57-104, the $4,000 fee is not shown to be a charge paid by the borrowers directly or indirectly to the lenders so as to render the transaction usurious. Instead, it affirmatively appears that the fee was paid to a separate legal entity, and there is nothing further to show that either of the lenders, in their own right, directly or indirectly received any part of the fee, so that it could be included as a part of the interest charged so as to exceed the lawful rate. The trial court did not err in eliminating the defense of usury. 2. The remaining contentions of the defendant Vezzani in Case No. 44948 are without merit. The evidence supports the judgment as amended and the court did not err in overruling the motion for a new trial. 3. The judgment of the court on June 10, 1969, as subsequently amended on August 15, 1969, is for $20, 631.67 principal and $3,094.76 attorney's fees, plus unstated court costs. The order on a supersedeas bond, dated October 1, 1969, requires that the defendant Vezzani post bond, "in the amount of $23,763.43 within ten (10) days from this hearing." In this respect the plaintiffs point out that the bond is equal to the judgment and requires no surety thereon. The record fails 69 to disclose that any surety was required. Thus, the obligation imposed by the requirement for a supersedeas bond added nothing in substance to the obligation imposed by the judgment. Accordingly, the appeal in Case No. 44949, based on the action of the trial court requiring a supersedeas bond and related actions, fails to disclose any error harmful to the defendant Vezzani and is therefore without merit. Judgments affirmed. Eberhardt and Pannell, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342866/	210 Va. 636 (1970) ELDON LESTER YATES v. ROBERT POTTS, SR. Record No. 7043. Supreme Court of Virginia. March 9, 1970. Present, All the Justices. 1. Plaintiff estimated his speed at between 40 and 50 miles per hour where speed limit was 45. Jury could differ as to interpretation and effect and could accept highest or lowest estimate. Thus testimony in entirety does not unequivocably show plaintiff's case to be without merit and jury question is presented. 2. Speed limitations do not apply to police vehicles operated, with due regard for safety, in apprehension of violators. Requirement that siren be sounded "as may be reasonably necessary" should be interpreted with due regard for safety of police officer conducting a chase. Jury question as to whether plaintiff was entitled to exemption. 3. Plaintiff not required to drive at such speed that vehicle can be stopped at all times within range of driver's vision. Not guilty of contributory negligence as a matter of law in going over hillcrest at 40 to 50 miles per hour when driver knew intersection was only 100 feet away. Error to strike plaintiff's evidence. Error to a judgment of the Circuit Court of Fairfax County. Hon. Albert V. Bryan, Jr., judge presiding. Louis Koutoulakos, for plaintiff in error. Robert C. Coleburn, for defendant in error. HARMAN HARMAN, J., delivered the opinion of the court. The plaintiff, Eldon Lester Yates, filed a motion for judgment against the defendant, Robert Potts, Sr., to recover for personal injuries 637 juries sustained as the result of a collision between an automobile and a motorcycle. The motion for judgment alleged that defendant was negligent in failing to give the signal required by statute of his intention to stop or turn and in operating a motor vehicle with defective lights. The matter was heard before a jury. At the conclusion of plaintiff's case, defendant moved to strike the evidence on the ground plaintiff was guilty of contributory negligence as a matter of law. The trial court granted the motion and entered summary judgment for defendant. We granted a writ of error to plaintiff. In these circumstances plaintiff is entitled, under well-established rules, to have the evidence viewed in the light most favorable to him. The accident occurred on September 1, 1964, at approximately 10:30 a.m., at the intersection of State Routes 123 and 641 in Fairfax County. Route 123 is a narrow two-lane paved highway running from north to south which generally follows the contours of the rolling terrain, thereby creating many curves and hillcrests. Route 641, which is an unpaved road, intersects with the east side of Route 123 to form a "T" intersection approximately 100 feet south of one of these hillcrests. The intersection is not visible to one traveling south on Route 123 until that person reaches the hillcrest. The posted speed limit on Route 123 was 45 miles per hour. On the day of the accident plaintiff, who was a county police officer, was working as a member of a radar team. The group had set up its radar equipment and was checking the speed of vehicles traveling on Route 123. Defendant, driving south in a 1959 Ford automobile, passed through the radar beam at a speed of 60 miles per hour, 15 miles per hour in excess of the speed limit. Plaintiff, riding a motorcycle, started in pursuit of defendant for the purpose of charging him with this violation. Plaintiff entered Route 123 from a side road where he had been concealed. At that time he had already turned on his flashing red light, which continued to operate up to the time of impact, and was blowing his siren. He continued to blow his siren for approximately 1/2 mile. At this point he approached a series of curves approximately 1/2 mile north from the point where the accident occurred. He removed his foot from the siren lever and placed it on the clutch in order to operate the clutch in negotiating these curves. 638 After rounding the last curve in this series, plaintiff saw defendant going over the hillcrest approximately 100 yards ahead of him. At that time no brake lights were visible on defendant's car and no turn signal was being given by defendant. As plaintiff passed over the hillcrest, he saw the defendant's car stopped or moving slowly at the intersection 100 feet south of the hillcrest. Plaintiff applied the brakes on his motorcycle and skidded into the rear of defendant's car. Defendant, called as an adverse witness by plaintiff, testified that he intended to turn left into Route 641 and was "just moving slow" or "standing still" when the collision occurred. An examination of defendant's car at the scene of the accident by the investigating officer established that the brake lights on the defendant's car were not operating. No signal of his intention to make a left turn was given by the defendant prior to the accident. Defendant subsequently entered a plea of guilty in the Fairfax County Court to speeding, failure to give a signal when making a turn and "no brake lights". We turn now to consideration of the trial court's action in striking plaintiff's evidence. In making his motion to strike, defendant contended that plaintiff was guilty of negligence per se for violating the statute against speeding. Defendant argued that plaintiff was operating at an excessive speed when he went over the hillcrest and since he was not then sounding his siren, he was not entitled to the exemption granted police officers by law. [1] Defendant also contended that 639 plaintiff was guilty of contributory negligence in going over the hillcrest at such speed that he could not "stop his vehicle" when he knew there was an intersection only 100 feet south of the hillcrest. "(b) These exemptions, hereinbefore granted to such a moving vehicle, shall apply only when the operator of such vehicle displays a flashing, blinking or alternating red light and sounds a siren, bell, or exhaust whistle, as may be reasonably necessary, and, only when there is in force and effect for such vehicle standard automobile liability insurance covering injury or death to any one person in the sum of at least $25,000. Such exemptions shall not, however, protect the operator of any such vehicle from criminal prosecution for conduct constituting reckless disregard of the safety of persons and property. Nothing in this section shall be construed to release the operator of any such vehicle from civil liability for failure to use reasonable care in such operation." [The foregoing was the language of the Code section in 1964, when the accident in question occurred. An amendment in 1966 inserted "or air horn designed to give automatically intermittent signals" in the first sentence of subsection (b).] Thus, plaintiff's testimony as to his speed when he went over the hillcrest was crucial to disposition of defendant's motion to strike. In his direct testimony, plaintiff said at one point that his speed at the hillcrest was "between 40 and 50" and at another point that it was "between 45 and 50". On cross-examination, plaintiff replied affirmatively to defense counsel's query, "as I understand you to say, you were going approximately 50?" Defendant contends that plaintiff is bound to his highest estimate of speed, 50 miles per hour or 5 miles in excess of the posted limit, under the rule of Massie Firmstone, 134 Va. 450, 114 S.E. 652 (1922). However, the Massie case does not stand for the proposition advanced by defendant. In Saunders Bullock, 208 Va. 551, 553, 159 S.E.2d 820, 823 (1968), we said of the Massie Firmstone rule: {"The rule does not necessarily apply to statements of opinion or of incomplete facts. In applies 'where a litigant testifies unequivocally to facts within his knowledge and upon which his case turns.' . . . But if his testimony in its entirety does not unequivocally show that his case is without merit or if reasonable men may differ as to its effect, 'the jury must be permitted to pass upon the testimony and the effect thereof, taken together with all the other evidence in the case.'" Here, plaintiff estimated his speed at between 40 and 50 miles per hour. While the highest estimate would have been in excess of the posted limit, a jury of fair-minded men could differ as to the interpretation and effect of plaintiff's testimony and could reasonably decide to accept the highest or the lowest estimate or to fix the speed at some rate in between. We hold, therefore, that plaintiff's testimony created a jury issue as to his speed. This brings us to the question whether, if the jury found plaintiff was exceeding the speed limit, he was entitled to the exemption granted police officers by law. Code \| 46.1-199 provides that the speed limitations set forth in the Motor Vehicle Code "shall not apply to vehicles when operated with due regard for safety under the 640 direction of the police in the chase or apprehension of violators of the law." The effect of this Code section is that violation of the statute fixing speed limits (Code \| 46.1-193) is not negligence per se if the exemption is applicable. One of the conditions in Code \| 46.1-199 to the applicability of the exemption is that the operator of a police vehicle sound "a siren . . . as may be reasonably necessary." Defendant contended in the trial court that plaintiff was not entitled to the exemption because he was not sounding his siren when he went over the hillcrest. Plaintiff conceded that he was not sounding his siren at the precise moment he passed over the hillcrest. He explained, however, that he was not sounding the siren because it was necessary in negotiating the curves through which he had just passed to remove his foot from the siren lever in order to operate the clutch. Plaintiff stated that "when you go into curves . . . it is dangerous to ride with your foot off the clutch." We believe the language of Code \| 46.1-199 "as may be reasonably necessary" has due regard for the safety of the police officer conducting a chase as well as the law violator and members of the general public. We do not read the Code section to withhold from a police officer the exemption thereby granted if his failure to sound his siren at a given moment is based upon reasonable considerations for his own safety. What is reasonable in a given situation is ordinarily a factual question. In this case, it was for the jury to say whether plaintiff sounded his siren as was "reasonably necessary" and whether he was entitled to the exemption provided by Code \| 46.1-199. We find no merit to defendant's final contention that plaintiff was guilty of contributory negligence as a matter of law in going over the hillcrest at 40 to 50 miles per hour when he knew the intersection was only 100 feet away. The law in Virginia imposes no duty to drive an automobile at such speed that it can be stopped at all times within the range of the driver's vision. Finch McRae, 206 Va. 917, 922, 147 S.E.2d 83, 87 (1966). It was error for the trial court to strike plaintiff's evidence and enter summary judgment for defendant. The judgment appealed from will be reversed and the case remanded for further proceedings. Reversed and remanded. NOTES [1] "\| 46.1-199. Exceptions to speed limitations; when exemptions applicable; prosecution for recklessness; civil liability. -- (a) The speed limitations set forth in this chapter shall not apply to vehicles when operated with due regard for safety under the direction of the police in the chase or apprehension of violators of the law, or of persons charged with or suspected of any such violations, or in testing the accuracy of speedometers on police vehicles, or in testing the accuracy of the radio microwave or other electrical devices specified in \| 46.1-198 nor to fire department vehicles when traveling in response to a fire alarm or pulmotor call, nor to ambulances when traveling in emergencies outside the corporate limits of cities and towns.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342940/	460 S.E.2d 376 (1995) Pinkie M. GEDDINGS, Respondent, v. Marvin Thomas GEDDINGS, Jr., Allen Nicholes Geddings, Rachel Geddings McCollough and James Jackson Geddings, Individually and as Personal Representative of the Estate of Marvin Thomas Geddings, Appellants. No. 24282. Supreme Court of South Carolina. Heard June 13, 1995. Decided July 24, 1995. 377 Matthew A. Henderson, Spartanburg, for appellants. Robert A. Hammett and Duncan E. Alford, Spartanburg, for respondent. FINNEY, Chief Justice: Respondent (Pinkie Geddings) initiated this action seeking to invoke her right to an elective share of the decedent's probate estate pursuant to S.C.Code Ann. § 62-2-201 (Supp.1994). Appellants answered alleging Mrs. Geddings had waived her right to an elective share by signing a waiver agreement. After a hearing, the probate judge granted Mrs. Geddings an elective share finding that the purported waiver was void because she did not receive the required statutory fair disclosure. S.C.Code Ann. § 62-2-204 (1987). Appellants appealed the matter to the circuit court which affirmed the probate court's determination. We affirm. The Geddings were married in 1979. Both had children by their former spouses. In 1988 Mrs. Geddings signed a document presented to her by her husband titled "Waiver of Right to Elect and of Other Rights." In summary the document acknowledged that each had made a will; each desired that the bulk of his/her property go to his/her children by previous marriages; each disclaimed interest in the spouse's estate except as provided in the will admitted to probate at the death of the other spouse; and each had made a full, fair and complete disclosure to each other of all presently-owned assets. Appellants contend the court erred in concluding the waiver agreement was invalid because Mrs. Geddings did not receive fair disclosure. As an initial matter, appellants assert the probate court allowed Mrs. Geddings to testify in violation of the Dead Man's Statute S.C.Code Ann. § 19-11-20 (1985). Based on that testimony, appellants claim the court erroneously concluded she had signed the agreement acknowledging fair disclosure when in fact she did not receive fair disclosure. Appellants did not object to Mrs. Geddings' testimony on the ground of violation of the Dead Man's Statute. Therefore appellants are precluded from raising the question now. Branton v. Martin, 243 S.C. 90, 132 S.E.2d 285 (1963). The right of election of a surviving spouse may be waived by a written contract signed by the party waiving after fair disclosure. 378 S.C.Code Ann. § 62-2-204 (1987). While South Carolina has not defined what constitutes fair disclosure in this context, other states have in the similar context of antenuptial agreements. Considering the confidential relationship between parties to an antenuptial agreement, the affirmative duty imposed upon each party to disclose his or her financial status transcends what is normally required for a commercial transaction. In re Estate of Lebsock, 44 Colo. App. 220, 618 P.2d 683 (1980). "Fair disclosure contemplates that each spouse should be given information, of a general and approximate nature, concerning the net worth of the other. Each party has a duty to consider and evaluate the information received before signing an agreement." In re Estate of Lopata, 641 P.2d 952 (Colo.1982); In re Estate of Hill, 214 Neb. 702, 335 N.W.2d 750 (1983). Fair disclosure means that before signing an antenuptial agreement, each party must disclose to the other the facts that exist at the time of the agreement and which, in the absence of the antenuptial agreement, affect or determine the prospective intestate share of a surviving spouse in the disclosing party's estate or which otherwise affect or determine distribution of property at the disclosing party's death. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993). Both judges found the evidence presented by Mrs. Geddings established she had no real or general knowledge of the total extent of her husband's assets. While Mrs. Geddings had fully disclosed her assets to the decedent, she had no knowledge of the value of husband's estate. The attorney preparing the waiver document testified he did not discuss assets with Mrs. Geddings when it was executed. Mrs. Geddings was excluded from the annual corporate meetings held in her home at Christmas which included only the decedent and his children. There was substantial testimony that decedent was secretive about his financial affairs. In an action at equity, tried first by the master or special referee and concurred in by the trial judge, the findings of fact will not be disturbed on appeal unless found to be without evidentiary support or against the clear preponderance of the evidence. Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976); Dean v. Kilgore, ___ S.C. ___, 437 S.E.2d 154 (Ct. App.1993) (two-judge rule would apply in appeal from circuit court of an equity case originating in probate court where both courts agreed on material issues). There was sufficient evidence supporting the factual findings of the probate court concurred in by the circuit court. Accordingly, we AFFIRM. TOAL, MOORE and WALLER, JJ., and GEORGE T. GREGORY, Jr., Acting Associate Justice, concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1342938/	460 S.E.2d 302 (1995) 218 Ga. App. 59 CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY v. OKONKWO. No. A95A0652. Court of Appeals of Georgia. June 26, 1995. Reconsideration Denied July 20, 1995. Certiorari Denied November 3, 1995. 303 Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Daniel R. Ketchum II, Atlanta, for appellant. Stefano A. Didio, Alpharetta, for appellee. ANDREWS, Judge. We granted the application of Cambridge Mutual Fire Insurance Company (Cambridge) to appeal the denial of its motion for summary judgment regarding Okonkwo's (the insured) claim under a homeowner's policy issued by Cambridge. We reverse. Viewed under the standard of Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), and viewing the facts with all inferences in favor of the insured, the undisputed facts were that the policy involved was issued on February 22, 1993, and that policy provided in Section 8 that "No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss." (Emphasis supplied.) This is the paragraph upon which Cambridge premised its motion for summary judgment. Section 10 states, in pertinent part, that "[l]oss will be payable 60 days after we receive your proof of loss and: a. reach an agreement with you; b. there is an entry of a final judgment; or c. there is a filing of an appraisal award with us." This paragraph is relied upon by the insured for his argument that, at a minimum, the beginning of the year referred to in Section 8 does not begin until after the expiration of this 60 days. The insured contacted his agent shortly after the burglary of his home which he alleged occurred on February 24, 1993 while he was at work. Cambridge acknowledges that it had notice of the claim and that the insured supplied a proof of loss and some receipts regarding valuation of the insured items. The insured filed one proof of loss which was misplaced by Cambridge. On July 7, 1993, Cambridge's agent received a call from the insured complaining about the delay in processing his claim. In response, the insured was given the name of Wilson, the in-house claims adjuster of Cambridge, and his phone number. Thereafter, on August 25, 1993, the local claims adjuster for Cambridge forwarded a letter and second proof of loss form to the insured. That letter stated that "[t]he furnishing of these blank forms and the sending of this letter is [sic] not to be construed as a waiver of the provisions of the contract or as an admission or denial of liability thereunder." On September 1, 1993, the insured forwarded to Cambridge a second proof of loss form, claiming a loss of $9,454.45. On September 22, 1993, the attorney for Cambridge notified the insured that an examination under oath was required regarding the theft and valuation of the items taken. The insured responded the next day and that examination was conducted by the attorney on September 30, 1993. On October 20, 1993, Cambridge claims examiner Wilson sent the insured a letter stating in pertinent part that it was "the conclusion of the Company, based upon its investigation, that you have materially misrepresented facts and circumstances concerning your loss in an attempt to wrongfully obtain insurance proceeds. This is a violation of your insurance policy which renders it void. However, in hopes that that event might be avoided as well as expensive litigation, I have been authorized to offer you $2,500 in full settlement of all claims under this policy. This offer will remain open for fifteen (15) days from the date of this letter.... If the settlement is not accepted, your policy will be void as of that date. Thereafter, if you elect to proceed any further with legal action, you should do so in strict accordance with the terms of the policy and the law of the State of Georgia...." (Emphasis supplied.) Suit was not filed until April 28, 1994. 304 The trial court concluded, without further elaboration, that material questions of fact remained, precluding summary judgment. 1. This court considers de novo the entire record before it on review of denial of a motion for summary judgment in order to determine if there were genuine issues of material fact which would preclude summary judgment or whether, instead, any such disputes were immaterial and movant Cambridge was entitled to summary judgment as a matter of law. Brandon v. Mayfield, 215 Ga.App. 735, 737(1), 452 S.E.2d 181 (1994). 2. "We are aware that `"[i]t is a universal rule that, where the insurer, by its acts in negotiating for a settlement, has led the policyholder to believe that he will be paid without suit, the insurer cannot take advantage of a provision in the policy which requires suit to be brought in a certain time."' Giles v. Nationwide, etc., Ins. Co., 199 Ga.App. 483, 485(1), 405 S.E.2d 112 (1991)." Shelter America Corp. v. Ga. Farm Bureau, etc., Ins. Co., 209 Ga.App. 258, 259(1), 433 S.E.2d 140 (1993). On the other hand, merely negotiating for a possible settlement of a disputed claim which is unsuccessfully accomplished is not conduct designed to lull the claimant into a false sense of security and does not preclude an assertion of the contractual one-year provision by the insurer. E.g., id.; Suntrust Mtg. v. Ga. Farm Bureau, etc., Ins. Co., 203 Ga.App. 40, 41, 416 S.E.2d 322 (1992); Giles, supra at 485(3), 405 S.E.2d 112; Holland v. Independent Fire Ins. Co., 168 Ga.App. 761(1), 310 S.E.2d 297 (1983); Aiken v. Northwestern Mut. Ins. Co., 106 Ga.App. 220, 223, 126 S.E.2d 630 (1962). Although the insured contended below that the negotiations by Cambridge somehow tolled the one-year period for bringing suit, the only facts brought forward on the motion for summary judgment showed a continuing investigation by Cambridge, even if some errors were made such as losing the proof of claim. The insured was aware after the October 20, 1993, letter, four months before the expiration of the one-year period for suit, that Cambridge disputed the claim, contended he had made misrepresentations which voided the policy, and offered to settle the disputed claim for $2,500, which offer remained open only for 15 days. There was no conduct from which waiver could have been deduced.[1] 3. To the extent that the insured argues that 60 days should be appended to the one-year period, this argument is likewise unavailing. Suntrust, supra at 42, 416 S.E.2d 322. Therefore, Cambridge was entitled to summary judgment. Judgment reversed. McMURRAY, P.J., and BLACKBURN, J., concur. NOTES [1] The insured's reliance on non-binding federal authority, Nicholson v. Nationwide Mut. Fire Ins. Co., 517 F. Supp. 1046 (N.D.Ga.1981) is also unavailing. See Glass Elec. Co. v. Commercial Union Ins. Co., 711 F. Supp. 615, 616(1) (N.D.Ga. 1988) and Broadfoot v. Reliance Ins. Co., 601 F. Supp. 87, 89 (N.D.Ga.1984), which follow established Georgia precedent and hold such clauses binding.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343330/	141 Ga. App. 509 (1977) 233 S.E.2d 817 HENDERSON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. 53279. Court of Appeals of Georgia. Argued January 11, 1977. Decided February 11, 1977. Rehearing Denied March 7, 1977. Henry M. Henderson, for appellant. Huie, Ware, Sterne, Brown & Ide, Steven B. Kite, Tom Watson Brown, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Barry Phillips, William E. Eason, Jr., Patterson & Parks, Bernard Parks, Ferrin Mathews, John Tye Ferguson, Wendell K. Willard, Moreton 511 Rolleston, Jr., H. Perry Michael, Senior Assistant Attorney General, Lewis R. Slaton, District Attorney, for appellees. SHULMAN, Judge. Plaintiff appeals from the denial of his extraordinary motion for new trial. Over objection of the plaintiff, Metropolitan Atlanta Rapid Transit Authority revenue bonds were validated by the superior court. Some six months later plaintiff filed his extraordinary motion for new trial based upon certain utterances made by former Governor, now President, Jimmy Carter, in a television interview on Meet the Press held on July 11, 1976. In such interview Mr. Carter commented briefly on 510 transportation and to some extent mass transit. This appeal completely lacks merit and belongs to that class of cases which should never have been brought for consideration to the already overburdened courts. "All applications for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge..." Kitchens v. State, 228 Ga. 624, 626 (187 SE2d 268) (1972). "The decision to grant a new trial is one within the sound discretion of the trial judge and his decision will not be reversed unless there is an abuse of discretion." Long v. State, 237 Ga. 110 (227 SE2d 22) (1976). In the same case, the Supreme Court set out the criteria that would authorize a new trial on the basis of newly discovered evidence. "In order to be entitled to a new trial on this ground, appellant must satisfy the court: `(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) ... and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. Burge v. State, 133 Ga. 431, 432...' Bell v. State, 227 Ga. 800, 805 (183 SE2d 357) (1971)." The remarks of Mr. Carter were entirely insufficient to show any probability of a different result in this case, nor do they in any other manner come within the requirements for granting motions for new trial based on newly discovered evidence. Judgment affirmed. Quillian, P. J., and Stolz, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343223/	233 S.E.2d 569 (1977) 292 N.C. 437 FALLS SALES COMPANY, INC., Plaintiff, v. BOARD OF TRANSPORTATION, Defendant, v. ASHEVILLE CONTRACTING COMPANY, Third-Party Defendant. No. 47. Supreme Court of North Carolina. April 14, 1977. 572 Atty. Gen. Rufus L. Edmisten by Sr. Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Guy A. Hamlin, Raleigh, for Bd. of Transp. Adams, Hendon & Carson, P. A., by George Ward Hendon, Asheville, for third-party defendant. COPELAND, Justice. Asheville first contends the Court of Appeals erred in affirming the trial court's denial of its motions to dismiss, for summary judgment, and for a directed verdict. Asheville claims its various motions should have been allowed because neither the plaintiff nor the defendant Board of Transportation have ever alleged or proven that Asheville performed its work in a negligent manner or in any manner inconsistent with prevailing good practices in the construction industry. It is a well settled rule in this jurisdiction that a contractor who is employed by the Board of Transportation to do work incidental to the construction or maintenance of a public highway and who performs the work with proper care and skill cannot be held liable to a property owner for damages resulting to property from the performance of the work. In such a case, the injury to the property constitutes a taking of the property for public use for highway purposes. Highway Commission v. Reynolds Co., 272 N.C. 618, 159 S.E.2d 198 (1968); Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 131 S.E.2d 900 (1963); Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182 (1952). The only remedies available to the owner are a special condemnation proceeding against the Board of Transportation under G.S. 136-19 or an action for "inverse condemnation" against the Board to recover compensation for the property taken or damaged. Reynolds, supra; Insurance Co., supra. But if the contractor employed by the Board of Transportation performs his work in a negligent manner and thereby proximately injures the property of another, he is personally liable to the owner therefor. Reynolds, supra; Insurance Co., supra; Moore, supra. We do not believe these established rules bar the third-party action involved in the instant case. While nothing else appearing, the contractor employed by the Board of Transportation is not absolutely liable for damages to a property owner, we have never held that a contractor may not contract to assume this liability. In Reynolds, supra, an action brought by the Highway Commission against a contractor to recover compensation paid to the owner of a building damaged by the contractor in the construction of a highway for the plaintiff, this Court had occasion to construe § 7.14 of the standard specifications, the general damage responsibility clause of the contract. In that case, we held that the parties did not contemplate or intend that the contractor should reimburse the Highway Commission for any amount paid by the Commission in discharge of its own primary liability and that reimbursement was contemplated and intended only in instances in which the Commission was called upon to discharge a liability to which it was subject on account of some wrongful act of the contractor and for which the contractor was primarily liable. Reynolds, supra. Reynolds is distinguishable in several respects from the case at bar. First, the trial court found as fact in Reynolds that the damages to the building did not result from blasting operations but were the result of the use of standard and accepted machinery and road-building equipment according to standard and accepted methods and techniques in the road construction industry. The contractor in Reynolds, supra, thus did not appear to be engaged in an ultrahazardous activity. We have held that blasting is an inherently dangerous or extrahazardous activity and that persons using explosives are strictly liable for damages proximately caused by an explosion. Insurance Co., supra. Thus, when a contractor employed by the Board of Transportation uses explosives in the performance of 573 his work we believe that he is primarily and strictly liable for any damages proximately resulting therefrom. See Insurance Co., supra. Fifty years ago, the Fourth Circuit Court of Appeals found Asheville Construction Co. (possibly a predecessor of the third-party defendant in this case?), an independent contractor, strictly liable on the theory of trespass for damages caused by rock and debris thrown on the property of another as a result of blasting operations. Asheville Construction Co. v. Southern Ry. Co., 4 Cir., 19 F.2d 32 (1927) (Parker, J.). That court held the fact that the contractor was employed by an agency of the State to construct the highway did not entitle it to any immunity from liability. Asheville Construction Co., supra. Assuming arguendo that the contractor is not primarily and strictly liable to the property owner for damages resulting from blasting, Reynolds is nevertheless distinguishable because of § 7.11 of the standard specifications. That specific liability clause of the contract states explicitly and without qualification that "[t]he contractor shall be responsible for any and all damage resulting from the use of explosives." The Board of Transportation, which is liable for any "taking" of property through the use of explosives by its contractors, Insurance Co., supra, has the right to enter into an indemnity contract with the contractor. Clearly the Board of Transportation by the insertion of § 7.11 into the contract specifications intended to insure itself against the highly unpredictable and dangerous consequences of blasting. "Ordinarily, when parties are on equal footing, competent to contract, enter into an agreement on a lawful subject, and do so fairly and honorably, the law does not permit inquiry as to whether the contract was good or bad, whether it was wise or foolish." Roberson v. Williams, 240 N.C. 696, 700-1, 83 S.E.2d 811, 814 (1954). "It is the simple law of contracts that `as a man consents to bind himself, so shall he be bound.'" (Cases omitted.) Troitino v. Goodman, 225 N.C. 406, 414, 35 S.E.2d 277, 283 (1945). We conclude that allegation and proof of negligence by the Board of Transportation in its action against Asheville is unnecessary and Asheville's motions to dismiss, for summary judgment, and for a directed verdict were properly denied. Asheville next assigns as error the trial court's allowance of the Board's motion for a directed verdict. This issue is not properly before us. Asheville did not present and discuss the assignment in its brief before the Court of Appeals as required by Rule 28(a) of the North Carolina Rules of Appellate Procedure. Accordingly, under Rule 28(a) the assignment was "deemed abandoned" and that court did not consider the question. After there has been a determination by the Court of Appeals, review by this Court, whether by appeal of right or by discretionary review, is to determine whether there is any error of law in the decision of the Court of Appeals and only the decision of that court is before us for review. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968); State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); Rule 16(a), N.C. Rules of Appellate Procedure. We inquire into the proceedings in the trial court solely to determine the correctness of the decision of the Court of Appeals except in those instances in which we elect to exercise our general supervisory power over inferior courts. State v. Williams, supra. A party who was an appellant in the Court of Appeals is only entitled to present in his brief before this Court assignments of error which he properly presented for review to the Court of Appeals. Rule 16(a), N.C. Rules of Appellate Procedure; accord, State v. Colson, supra. The potential scope of our review is limited by the questions properly presented for first review in the Court of Appeals. State v. Colson, supra ; Drafting Committee Note to Rule 16(a). "The attempt to smuggle in new questions is not approved." State v. Colson, supra, 274 N.C. at 309, 163 S.E.2d at 386. Nevertheless, we note that the directed verdict was proper because the only issue to be determined was a question of *574 law based on admitted facts. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). Both parties admit their written contract. We find § 7.11 of the standard specifications is free from ambiguity and when a written contract is free from ambiguity, interpretation of the contract is for the court. Briggs v. Mills, Inc., 251 N.C. 642, 111 S.E.2d 841 (1960). Asheville's contention that there were other issues of fact related to its affirmative defenses which should have been submitted to the jury is without merit. On this appeal neither the Board nor Asheville challenges Judge Walker's order severing the third-party action from the principal action and requiring the third-party action to be tried first. However, in view of the posture in which this action will return to the superior court, we are constrained to make the following observations: A severance order is an interlocutory order, that is, one incidental to the progress of the cause which does not affect a substantial right of the parties. As such, it may be subsequently modified by the presiding judge upon a determination that present circumstances warrant such action. "Interlocutory orders are subject to change `at any time to meet the justice and equity of the case upon sufficient grounds shown for the same.'" Calloway v. Ford Motor Co., 281 N.C. 496, 502, 189 S.E.2d 484, 488 (1972). The decision in this opinion, that Asheville is absolutely liable to the Board for all sums recovered by the plaintiff from the Board for blasting damages, settles one of the major issues in the case. Thus from now on Asheville's interests will be inextricably bound with those of the Board. The provision for consolidated trials contained in G.S. 1A-1, Rule 14(a) was designed to deal with this type of situation. "When the rights of all three parties center upon a common factual setting, economies of time and expense can be achieved by combining the suits into one action. Doing so eliminates duplication in the presentation of evidence and increases the likelihood that consistent results will be reached when multiple claims turn upon identical or similar proof." Wright & Miller, Federal Practice and Procedure § 1442 (1971). Even where circumstances require separate trials after a Rule 14 impleader, we believe the better practice is to try the principal action first. The decision of the Court of Appeals is AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343226/	233 S.E.2d 411 (1977) Charles W. NORTH v. WEST VIRGINIA BOARD OF REGENTS and James G. Harlow, President of West Virginia University. No. 13765. Supreme Court of Appeals of West Virginia. March 29, 1977. 413 Edgar F. Heiskell, III, Morgantown, for appellant. Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., James S. Arnold, Asst. Atty. Gen., Charleston, for appellee. 412 MILLER, Justice: Charles North, a fourth-year medical student, was expelled from the West Virginia University School of Medicine. He claims that the expulsion violated his constitutional right to due process. A petition for a writ of certiorari was filed by North in the Circuit Court of Kanawha County against the West Virginia Board of Regents and James G. Harlow, President of the University, to obtain a review of the hearing procedures which led to his expulsion. The lower court rejected the writ on the basis that the petition as a matter of law did not state a prima facie case. It did recognize that certiorari was the appropriate procedural remedy, citing Beverlin v. Board of Education of Lewis County, W.Va., 216 S.E.2d 554 (1975). It is from this adverse ruling that North brings a writ of error. Since the lower court denied the writ, we do not have available any record reflecting what transpired at the various hearings held at the University, except to the extent that they are contained in the verified petition for the writ of certiorari. However, since the case was summarily dismissed in the lower court, we need only determine if the petition does state a claim for relief. We hold that it does. The critical facts, as determined from the petition, are that in July, 1975, North was verbally advised by the Associate Dean of the School of Medicine that an accusation had been made that his initial application for entrance contained false information and that a hearing would be held to determine what action the administration would take. A hearing was conducted by a committee of the faculty and administrators of the medical school, and North did attend. No formal notice of charges was given to North at or prior to the hearing. He was excluded from the hearing when the adverse 414 information was presented to the committee, but was invited into the hearing afterwards and subjected to cross-examination as to the charges. Thereafter, the committee recommended to President Harlow that North be expelled and all of his academic credits accrued at the medical school be expunged. Before action was taken by President Harlow on the committee's recommendations, North secured an attorney, who notified the University that North's due process rights had been violated and requested a further hearing. Subsequently, on August 19, 1975, the University sent a written notice to North setting a new hearing on September 2. This notice contained some of the allegations made against North, but did not contain reference to any rule or regulation of the University which was claimed to have been violated. Prior to the September hearing, the following events occurred. North's attorney requested the right to attend and represent him, but this was denied. North submitted a written statement he proposed to make at the hearing, essentially admitting the truth of some of the allegations against him, pointing to his good academic record, and answering some of the allegations in the notice. This was followed by a letter from a committee member to North, with copies to two other committee members, attacking North's personality and making further allegations against him. At the hearing on September 2, which was composed of the same committee that heard the matter originally, North appeared without counsel and offered his explanation to the charges. No verbatim record or transcript was made of the hearing. On September 17, President Harlow notified North that his admission to the medical school was rescinded and his grades were cancelled. North, through his attorney, then appealed the matter to the Board of Regents and, on its finding that due process had not been afforded, it remanded the matter to the University for further proceedings. A third hearing was then held on January 8, 1976, at the University before the Committee on Student Discipline. Prior to this hearing, a written notice was given North charging him with a violation of Rule 4.02 of the Rules and Regulations Regarding Student Rights, Responsibilities and Conduct, a disorderly conduct rule. There was also a reference in the notice to a section in the West Virginia University Student Handbook pertaining to verification of records submitted with admission applications. Petitioner sought to have his attorney attend this hearing and this request again was denied, although a professor at the University, an attorney, was present as an advisor. At the hearing, North alleges he was asked to plead "guilty or not guilty" to any or all of the charges. With certain express qualifications, he admitted the truth of certain allegations and denied others. At no time did he plead guilty to any of the charges. Subsequently, the Committee concluded that he had plead guilty to certain of the charges and recommended his expulsion. This was affirmed by President Harlow. Following an appeal to the Board of Regents, which permitted North's attorney to file a brief and make an oral argument, North's expulsion was upheld. The development of the law regarding students' rights to a due process hearing when expelled from school has been of rather recent origin. Its growth is largely attributed to politically active students, particularly those involved in the civil rights movement, whose activities resulted in the unrest manifested on many college campuses during the 1960's. The traditional view was that a student attending college did so as a matter of privilege and therefore had no right to complain if he were summarily expelled or suspended. Steier v. New York State Education Commissioner, 271 F.2d 13 (2d Cir. 1959). It has been generally recognized that the due process door opened for students in the case of Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), cert. denied, 368 U.S. 930, 82 415 S.Ct. 368, 7 L.Ed.2d 193 (1961), where the court held that students expelled from Alabama State College for attempting to integrate lunchroom counters were required, under due process concepts, to have notice of the charges and an opportunity to be heard prior to being expelled. It was not until Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), that the United States Supreme Court required the application of due process standards in student disciplinary proceedings. While the students in Goss attended high school, and were suspended for ten days for disruptive conduct, the Court did not suggest that there is any differentiation of due process standards according to the level the student occupies in the educational system. The Court found that Federal due process extends to protect a property or liberty right. It recognized that students at free public schools have sufficient entitlement to a public education to create a property interest that would prevent summary suspension. The Court in Goss also concluded that students have a liberty interest which requires due process protection. Under this concept the student's good name, reputation, honor or integrity, which attributes are a part of a person's liberty, are adversely affected when a suspension is given. Thus, where the government takes arbitrary action which damages these attributes, it violates the due process standard. In this, the Court relied upon Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); and Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). We believe this same reasoning applies with equal force to a student at a state-supported university. His interest in obtaining a higher education with its concomitant economic opportunities, coupled with the obvious monetary expenditure in attaining such education, gives rise to a sufficient property interest to require procedural due process on a removal. From a liberty standard there can be little question that an expulsion from college damages the student's good name, reputation and integrity, even more so than an expulsion from high school. The higher the level of achievement, the greater the loss on removal. North's petition alleges enough facts to demonstrate that he does have sufficient property and liberty interests to require due process protection under Article III, Section 10 of the West Virginia Constitution.[1] What must be determined in this case is the extent of due process procedure that need be afforded. The applicable standards for procedural due process, once we leave the criminal area, may depend upon the particular circumstances of a given case. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), illustrates some of the guiding principles in regard to procedural due process when the case involves a deprivation of a liberty or property interest. Mathews recognized that some type of an orderly hearing is the cornerstone of procedural due process. Implicit recognition was given to the fact that the range of liberty and property interest, subject to due process procedures before they can be withdrawn through State action, is almost infinite. Protected property interests have included a driver's license,[2] relief from garnishment of wages,[3] welfare rights[4] and dismissal from government employment.[5]416 Goss observed ". . . that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause." 419 U.S. at 576, 95 S.Ct. at 737, 42 L.Ed.2d at 735. In the area of liberty rights, challenge has been made to government-sponsored disloyalty lists and a loyalty oath, which contained impermissive presumptions as to disloyalty,[6] the arbitrary withdrawal of security clearance of a civilian employed by a private contractor,[7] and the illegal reclassification of an exempt registrant for selective service,[8] as well as a statute authorizing the posting of a notice of known alcoholics in liquor establishments.[9] Also bearing on the quality of due process to be afforded is that while the initial deprivation must be surrounded by some due process procedures, these may be rather minimal if there are prompt post-deprivation hearing procedures giving a fuller measure of due process to the aggrieved party. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). This Court in the past has required the application of due process standards in proceedings where governmental bodies have deprived a person of a property right. A review of some of the more significant cases in this area demonstrates that the Court has generally been content to approach the question of due process on a case by case basis. In State ex rel. Rogers v. Board of Education of Lewis County, 125 W.Va. 579, 25 S.E.2d 537 (1943), a county school superintendent was removed from office by the school board, and this Court defined his due process rights as follows: "The superintendent, who was to enter upon a hearing by which his right to an important and profitable office for a definite term of years, should be determined, was denied the assistance of legal counsel. We unhesitatingly say that this was the deprivation of a hearing as contemplated by statute. `A "hearing" includes the introduction of evidence, the argument of counsel, and the pronouncement of the decree'. Opinion, Hatcher, J., Ellis v. Road Commission, 100 W.Va. 531, 131 S.E. 7, 8. . . . The intricacies of the substantive and procedural law involved were such that no layman could be expected to protect adequately his rights without legal assistance. . . . "Respondents concede that no witness heard was sworn. This alone nullifies the hearing. A `hearing' by either a judicial or a quasi-judicial tribunal contemplates the taking of evidence, and oral testimony presupposes the administration of an oath. . . . Nor could there be an adjudication against the superintendent by default. . . ." 125 W.Va. at 589-90; 25 S.E.2d at 542. Subsequent confirmation of these principles was made in Beverlin v. Board of Education of Lewis County, supra, where it was stated: "Beverlin was accorded actual notice, a meaningful (albeit unsuccessful) hearing, the opportunity to confront his accusers, assistance of counsel and the availabilities of remedies for review." 216 S.E.2d at 557. Other illustrations of the application of due process rights in procedures initiated by governmental bodies can be found in State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960), revocation of used car dealer license by a biased hearing officer; State ex rel. Bronaugh v. Parkersburg, 148 W.Va. 568, 136 S.E.2d 783 (1964), denial of hospital privileges to a physician at a city-owned hospital; State ex rel. Bowen v. Flowers, 155 W.Va. 389, 184 S.E.2d 611 (1971), suspension of pharmacist from pharmaceutical program administered by Department 417 of Welfare; State ex rel. Payne v. Walden, W.Va., 190 S.E.2d 770 (1972), distress statute violative of due process procedures; Persinger v. Edwin Associates, W.Va., 230 S.E.2d 460 (1976), attachment statute sustained as sufficient under due process; Anderson v. George, W.Va., 233 S.E.2d 407 (1977), statutory seizure of animals as countering due process. From all of these cases, certain fundamental principles in regard to procedural due process can be stated. First, the more valuable the right sought to be deprived, the more safeguards will be interposed. Second, due process must generally be given before the deprivation occurs unless a compelling public policy dictates otherwise. Third, a temporary deprivation of rights may not require as large a measure of procedural due process protection as a permanent deprivation. These are the general due process concepts that are embodied in Article III, Section 10 of the West Virginia Constitution, and it is with these concepts in mind that we must determine North's procedural due process rights. Petitioner North was not given a suspension, but was expelled in effect ab initio with all earned credits cancelled. This is the most severe penalty that can be inflicted upon a student by academic authorities. Not only is his academic career terminated at the particular institution, but his chance of successful application at another institution of higher learning is, at best, minimal. Finally, with all academic credits removed, he must begin anew. In this type of situation a student is entitled to substantial due process protection. The standard of due process should comport with Beverlin, supra, and Rogers, supra, and require the following rights: a formal written notice of charges; sufficient opportunity to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges, to confront his accusers, and to present evidence on his own behalf; an unbiased hearing tribunal; and an adequate record of the proceedings. It is not possible from the meager record before this Court to determine if all of these rights were afforded North. It does appear that he was not permitted to have his retained counsel present and a question exists on whether there was any proof of the charges independent of North's explanation. The matters surrounding the extent of procedural due process standards actually afforded North under the guidelines set in this opinion will have to be examined by the lower court. It is sufficient to state that a prima facie case has been made in the petition to warrant a full review of the procedural due process question by way of a writ of certiorari. We recognize that the standard of due process set in this case applies to disciplinary expulsions. The same standard may well apply to lengthy suspensions which would have the practical effect of preventing the student from completing his academic program. In shorter suspensions, we adopt the holding of Goss, that ". . the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." 419 U.S. at 581, 95 S.Ct. at 740, 42 L.Ed.2d at 739. Goss recognized, as do we, that there may be situations in which prior notice and hearing need not be given. Specific illustration of this exception was made as to students who present a ". . . continuing danger to persons or property or an ongoing threat of disrupting the academic process . . ." 419 U.S. at 582, 95 S.Ct. at 740, 42 L.Ed.2d at 739. They may be immediately removed, but are entitled to a prompt subsequent hearing. Goss did not discuss removal resulting from a student's failure to maintain required academic standards. The few courts which have delved into this area have recognized that a broad discretion rests with school officials on academic dismissals and their decisions in this area are 418 not ordinarily reviewable by the courts. Greenhill v. Bailey, 519 F.2d 5 (8th Cir. 1975), sets the rule and its qualifications. As this case will be remanded to the trial court for further hearing, it is appropriate to discuss the extent of the hearing that should be afforded under the writ of certiorari. Prior to the passage of Chapter 153 of the 1882 Acts of the Legislature, the writ of certiorari existed in a limited form and mainly served as a means of reviewing the actions of inferior tribunals to determine if they had exceeded their jurisdiction. Certiorari, however, was not appropriate if there was another available remedy. Meeks v. Windon, 10 W.Va. 180 (1877); Richmond v. Henderson, 48 W.Va. 389, 37 S.E. 653 (1900). A substantial statutory broadening of the writ of certiorari occurred in 1882 with the addition of the language that we now find in W.Va.Code, 53-3-2: "In every case, matter or proceeding, in which a certiorari might be issued as the law heretofore has been, and in every case, matter or proceeding before a county court, council of a city, town or village, justice or other inferior tribunal, the record or proceeding may, after a judgment or final order therein, or after any judgment or order therein abridging the freedom of a person, be removed by a writ of certiorari to the circuit court of the county in which such judgment was rendered, or order made; . . ." Not only was scope broadened in the sense of the type of inferior tribunals from which certiorari would lie, but the extent of review afforded was expanded under language which is now found in W.Va.Code, 53-3-3: "Upon the hearing, such circuit court shall, in addition to determining such questions as might have been determined upon a certiorari as the law heretofore was, review such judgment, order or proceeding, of the county court, council, justice or other inferior tribunal upon the merits, determine all questions arising on the law and evidence, and render such judgment or make such order upon the whole matter as law and justice may require." This Court recognized in Long v. Ohio River R'y. Co., 35 W.Va. 333, 335, 13 S.E. 1010, 1011 (1891), that the statutory expansion made it ". . . a remedy of great importance, and constant use, and should be upheld and applied, within its proper scope, to the end of meting out substantial justice." It should be noted that the statutory expansion still contained the restriction that certiorari does not lie in cases ". . . where authority is or may be given by law to the circuit court, . . . to review such judgment or order on motion, or on appeal, writ of error or supersedeas, or in some manner other than upon certiorari;. . ." W.Va.Code, 53-3-2. Thus, it is held that certiorari is not a substitute for an appeal or writ of error. In re Johnson's Adoption, 144 W.Va. 625, 110 S.E.2d 377 (1959). As a result of the liberalization of certiorari by statute, actions taken by inferior tribunals acting in a judicial or quasi-judicial capacity, where no common law or statutory appeal rights were permitted, became reviewable by certiorari. Reynolds Taxi Company v. Hudson, 103 W.Va. 173, 136 S.E. 833 (1927); Quesenberry v. State Road Commission, 103 W.Va. 714, 138 S.E. 362 (1927); Town of Davis v. Davis, 40 W.Va. 464, 21 S.E. 906 (1895).[10] Beverlin v. Board of Education of Lewis County, supra, established that on a writ of certiorari the court may review the action of the lower tribunal to determine if it acted in an arbitrary and capricious manner, 419 and if it did, its actions will be reversed. This is consonant with the expanded reach of the writ, which requires the court to review the matter upon the merits and to make such order ". . . upon the whole matter as law and justice may require." W.Va.Code, 53-3-3. Beverlin was one more progression in the line of cases expanding the statutory writ of certiorari. Judge Brannon, speaking for this Court in McClure-Mabie Lumber Co. v. Brooks, 46 W.Va. 732, 734, 34 S.E. 921, 922 (1899), posed the questions which this Court answers in part today: "Code, chapter 110, section 3, says that on certiorari the court shall hear the case on the merits, deciding not only what at common law it could do upon certiorari, review the proceedings below, and `make such order as law and justice (both words used) may require.' What does this mean? I shall not say,it is hard to say; but it authorizes a liberality to cure such a defect as a defective or untruthful return." The implications are obvious. To correct an untruthful return, evidence outside the record must be obtained. We, therefore, conclude that on certiorari where, as here, substantial rights are alleged to have been violated by the inferior tribunal, the circuit court is authorized to take evidence independent of that contained in the record of the lower tribunal to determine if such violations have occurred.[11] To hold otherwise is to frustrate the clear statutory mandate that the certiorari review satisfy the requirements of law and justice. Upon the remand of this case, the lower court shall hold such evidentiary hearing as is necessary to determine petitioner North's claim of due process violations under the standards herein contained. Reversed and remanded. NOTES [1] We recognize that the 5th and 14th Amendments to the United States Constitution would also afford due process protection to North under Goss. We prefer to base the due process consideration on the West Virginia Constitution. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). [2] Bell v. Burson, 402 U.S. 535, 29 L.Ed.2d 90, 91 S.Ct. 1586 (1971). [3] Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). [4] Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). [5] Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). [6] Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). [7] Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). [8] Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). [9] Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). [10] We recognize that State ex rel. Board of Education v. Martin, 112 W.Va. 174, 163 S.E. 850 (1932), and Beverlin v. Board of Education of Lewis County, W.Va., 216 S.E.2d 554 (1975), state that a school teacher who is dismissed or suspended by a county board of education may seek judicial review of the board's action in the circuit court by writ of certiorari. This result arises by virtue of the peculiar wording of W.Va.Code, 18A-2-8, which makes the right of further administrative appeal discretionary with the employee. [11] In arriving at this conclusion, we are mindful that the concept of an "inferior tribunal" under the certiorari statute, W.Va.Code, 53-3-3, may involve a tribunal which, besides exercising quasi-judicial powers, also operates in administrative areas. Our holding is consistent with prior decisions of this Court as to the scope of judicial review on matters arising out of administrative agencies which exercise quasi-judicial functions. State v. Huber, 129 W.Va. 198, 40 S.E.2d 11 (1946); United Fuel Gas Company v. Public Service Commission, 73 W.Va. 571, 80 S.E. 931 (1914). It is also consistent with the extent of review afforded in contested cases under W.Va.Code, 29A-5-4(f) of the Administrative Procedures Act. W.Va. Code, 29A-1-1, et seq. Nor do we by our holding intend to overrule those decisions that require the exhaustion of administrative remedies before access to the courts may be obtained. The Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W.Va. 245, 183 S.E.2d 692 (1971).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343227/	233 S.E.2d 507 (1977) 292 N.C. 391 STATE of North Carolina v. Willie Lee WILLIAMS, a/k/a Bubba Williams. No. 6. Supreme Court of North Carolina. April 14, 1977. 510 Rufus L. Edmisten, Atty. Gen., Charles M. Hensey, Asst. Atty. Gen., Jane Rankin Thompson, Associate Atty. Gen., Raleigh, for the State of North Carolina. John Richard Newton and William B. Harris, III, Wilmington, for defendant-appellant. HUSKINS, Justice: Defendant contends the testimony of Joseph Sweat regarding defendant's participation in the armed robbery at K & B's Grocery Store on Castle Street and the murder of Thurston Smith should have been excluded since it put defendant's character in issue and its only relevancy was to show that defendant had committed another distinct, independent, separate crime. Admission of this evidence over objection constitutes defendant's first assignment of error. It is a general rule of evidence that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent, separate offense. Exceptions to the general rule of inadmissibility, as well recognized as the rule itself, are discussed and documented by Mr. Justice Ervin in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). The second and fifth exceptions there stated are pertinent here and read as follows: "2. 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.) "5. Where evidence tends to prove a motive on the part of the accused to commit the crime charged, it is admissible, even though it discloses the commission of another offense by the accused." (Citations omitted.) Stansbury formulates the rule thusly: "Evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime." 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 91. Joseph Sweat testified, in effect, that defendant said he could not accompany Trooper Griffin to Burgaw to make bond for speeding because the authorities there would discover he was wanted for the murder of Thurston Smith in Wilmington during the K & B Grocery robbery on 10 September 1975, and for that reason he had to kill Trooper Griffin. The challenged evidence was competent under the exception noted in State v. McClain, supra, to show both motive and intent. Moreover, Sweat's testimony was competent to show that Trooper Griffin was killed for the purpose of concealing another crime. State v. Beam, 184 N.C. 730, 115 S.E. 176 (1922). In fact, the robbery and murder at K & B's Grocery, the theft of the two cars for purpose of escape, and the murder of Trooper Griffin are so connected in point of time and circumstance that the trooper's murder cannot be fully shown without proving the other offenses. These crimes are all an integral link in the chain of events leading to Trooper Griffin's murder by the defendant. The challenged 511 evidence was competent and properly admitted. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Christopher, 258 N.C. 249, 128 S.E.2d 667 (1962); State v. Adams, 245 N.C. 344, 95 S.E.2d 902 (1957); State v. Fowler, 230 N.C. 470, 53 S.E.2d 853 (1949). Defendant's first assignment of error is overruled. Defendant took the stand as a witness in his own behalf. On cross-examination the district attorney was permitted, over objection, to ask defendant whether he had committed certain named armed robberies on each day of the week preceding Trooper Griffin's murder, to which defendant responded that he had committed all except one of the armed robberies mentioned, including the robbery at K & B's Grocery on 10 September 1975. Admission of this evidence constitutes defendant's second assignment of error. It has long been the rule that when a defendant in a criminal case testifies in his own behalf, specific acts of misconduct may be brought out on cross-examination to impeach his testimony. State v. Colson, 194 N.C. 206, 139 S.E. 230 (1927); 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 111. Such cross-examination for purposes of impeachment is not limited to conviction of crimes. "Any act of the witness which tends to impeach his character may be inquired about or proven by cross-examination." State v. Sims, 213 N.C. 590, 197 S.E. 176 (1938). A defendant may not be asked whether he has been accused, arrested or indicated for a particular crime, but "[i]t is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. [Citations omitted.] Such questions relate to matters within the knowledge of the witness, not to accusations of any kind made by others." State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). The scope of such questions is subject to the discretion of the trial judge, and the questions must be asked in good faith. State v. Williams, supra; State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969); State v. Bell, 249 N.C. 379, 106 S.E.2d 495 (1959). When defendant's second assignment is subjected to these rules, its lack of merit is quite apparent. The Court notes ex mero motu that in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (decided 2 July 1976), the United States Supreme Court invalidated the death penalty provisions of G.S. 14-17 (Cum.Supp.1975), the statute under which defendant was indicted, convicted and sentenced to death. Therefore, by authority of the provisions of the 1973 Session Laws, chapter 1201, section 7 (1974 Session), a sentence of life imprisonment is substituted in lieu of the death penalty in this case. The consecutive ten-year terms for the auto thefts, unappealed from, shall commence at the end of the life sentence. Our examination of the entire record discloses no error affecting the validity of the verdict returned by the jury. The trial and verdict must therefore be upheld. To the end that a sentence of life imprisonment may be substituted in lieu of the death sentence heretofore imposed, the case is remanded to the Superior Court of New Hanover County with directions (1) that the presiding judge, without requiring the presence of defendant, enter a judgment imposing life imprisonment for the first degree murder of which defendant has been convicted; and (2) that in accordance with this judgment the clerk of superior court issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to defendant and his counsel a copy of the judgment and commitments as revised in accordance with this opinion. NO ERROR IN THE VERDICT. DEATH SENTENCE VACATED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343231/	233 S.E.2d 634 (1977) 32 N.C. App. 722 STATE of North Carolina v. John Thomas FISHER, Jr. No. 763SC798. Court of Appeals of North Carolina. April 6, 1977. 635 Atty. Gen. Rufus L. Edmisten by Associate Atty. Jo Anne Sanford Routh, Raleigh, for the State. Beaman, Kellum, Mills & Kafer, P.A. by James C. Mills, New Bern, for defendant. MARTIN, Judge. The defendant first contends that the trial court erred in instructing the jury to consider defendant's testimony in light of his interest in the outcome. He argues that such an instruction constitutes an expression of opinion as to defendant's creditability in violation of G.S. 1-180. The challenged portion of the charge is as follows: "Now, ladies and gentlemen of the jury, the Court instructs you that when a defendant in a criminal action takes the witness stand as a witness in his own behalf that you, the jury, should scrutinize, that is you should look over carefully his testimony in the light of his interest in the outcome of this case here. Now, the Court further instructs you, ladies and gentlemen of the jury, that if after scrutiny of his evidence you believe the witness, then you give his testimony the same weight as that of any other disinterested witness in the trial of this case." It is well settled that an instruction to scrutinize a defendant's testimony, with further instructions that if the jury should believe him worthy of belief it should give his testimony as full credit as that of any other witness, is without prejudicial error. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970). The court's instructions were a correct statement of the law and it was proper to give such instructions in a criminal case. This assignment of error is overruled. Finally, the defendant contends the court violated his Fifth Amendment right to remain silent by impressing the jury with that part of the State's evidence which revealed that the defendant failed to mention the alleged affair with the prosecuting witness at the time he was arrested by the police. In summarizing the rebuttal evidence, the judge instructed the jury that Officer Rodgers had been recalled by the State and that he had "said that the defendant did not mention any affair." We note that defendant not only failed to make any objection to this recapitulation of the evidence but he also failed to object to the original admission of this evidence at trial. The defendant cites the case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In that case, the petitioners were given warnings in line with Miranda v. Arizona after their arrest, but remained silent. During the course of their separate trials each gave an exculpatory story that had not been previously told to the police or to the prosecutor. Over their counsel's objection, they were each cross-examined about their failure to tell the exculpatory story at the time of their arrest. The Supreme Court 636 held that a prosecutor's impeachment of a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest violated the Due Process Clause of the Fourteenth Amendment. The Court reasoned that post-arrest silence following such warnings is insolubly ambiguous and that it would be fundamentally unfair to allow an arrestee's silence to be used to impeach an explanation subsequently given at trial after he had been impliedly assured, by the Miranda warning, that silence would carry no penalty. We find the case at bar distinguishable from Doyle v. Ohio, supra. This case does not present a situation in which a defendant's exercise of his right to remain silent is used against him. Here, the defendant testified that he and the prosecuting witness had been having an affair. In rebuttal, without objection by defendant, Officer Rodgers was permitted to testify that during his investigation he had talked with the defendant on two occasions; that the defendant did not tell him that he was having an affair with the prosecuting witness; and that he did not mention that he had had sexual relations with her. The defendant's statement to Officer Windham, in contrast thereto, was to the effect that the prosecuting witness came up the steps of his apartment; that she looked as though she had been injured; that she said she had had a fight with two tenants; and that she asked him to take her to the hospital. There is no evidence that defendant mentioned an affair to Officer Windham. Our Supreme Court has followed other jurisdictions in holding that: "`. . . [I]f [a] former statement fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent,' [citation omitted], and is termed an indirect inconsistency." (Citations omitted.) State v. Mack, 282 N.C. 334, 340, 193 S.E.2d 71, 75 (1972). Moreover, our courts have also made it clear that prior inconsistent statements are admissible for the purpose of impeachment. State v. Mack, supra; State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971). Accordingly, if the defendant in this case had a prior conversation with Officer Rodgers and, at that time, failed to mention a material circumstance later testified to at trial, then the prior statement was properly admitted for impeachment purposes. Applying the foregoing principles, we conclude that the defendant's in-court testimony that he had had an affair with the prosecuting witness was inconsistent with his earlier failure to so state at the time he talked with Officer Rodgers. Therefore, his failure to tell the officer of the affair when it was natural to do so was indirectly inconsistent with his in-court testimony concerning such a relationship. Hence, evidence of such failure was admissible to impeach his in-court testimony and the trial court did not err in recounting it. The defendant received a fair trial free of prejudicial error. MORRIS and VAUGHN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343234/	238 Ga. 454 (1977) 233 S.E.2d 191 OFFUTT v. THE STATE. 31537. Supreme Court of Georgia. Argued September 22, 1976. Decided February 23, 1977. Rehearing Denied March 8, 1977. Daniel F. Byrne, for appellant. William H. Ison, District Attorney, J. W. Bradley, Assistant District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee. PER CURIAM. The appellant was convicted for having committed armed robbery, and he has appealed. After his conviction he filed a motion for a new trial. Before that motion was heard, he filed an amendment to it based on evidence discovered after his conviction that he alleged was consonant with his innocence and would have affected the outcome of his trial. A hearing was conducted on the amended motion for new trial; the alleged "newly discovered evidence" was presented and made a part of the record; and the trial judge overruled the amended motion. The appellant contends that the newly discovered 455 evidence asserted in his amended motion for new trial and presented to the trial court at the hearing warranted a granting of a new trial under the standards set out in Bell v. State, 227 Ga. 800 (183 SE2d 357) (1971). We do not agree with this contention of the appellant. All six requirements set out in Bell, which must be complied with prior to the court granting a new trial on grounds of newly discovered evidence, have not been met by appellant in this case. Therefore, the overruling of the amended motion for new trial was not erroneous. Judgment affirmed. All the Justices concur, except Nichols, C. J., Ingram and Hill, JJ., who dissent. HILL, Justice, dissenting. A Majik Market in Clayton County was held up by three men. The clerk was the only witness to the crime, and the identification of the robbers depended on this witness' testimony. The defendant and Ronald Orvis were tried together for the armed robbery. The defendant called three alibi witnesses and a hung jury resulted. The defendant and Orvis were tried a second time, but again the jury could not agree. Orvis was tried separately a third time and was convicted. This court upheld his conviction. Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976). The defendant was tried separately and convicted. Later a third man, Steven Wright, was identified. At Wright's trial James Dickson testified that the actual robbers were himself, Orvis and another man. Dickson stated that neither the defendant Offutt nor Wright committed the robbery. The jury acquitted Wright. The defendant amended his motion for new trial based on Dickson's testimony at Wright's trial. 456 In view of the jury's acquittal of Wright based upon Dickson's testimony, I believe that this defendant should have a new trial so that this defendant's guilt or innocence will have been decided after consideration of Dickson's testimony. The fact that the first two juries were unable to find this defendant guilty supports this position. The majority opinion affirms the trial court's overruling of the motion for new trial stating that the defendant has not met the six requirements for a new trial based on newly discovered evidence as set out in Bell v. State, 227 Ga. 800 (183 SE2d 357) (1971). The six criteria are as follows: (1) that the evidence has come to the defendant's knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. Although the majority opinion does not identify which requirements it considers to be missing, the state urges that requirements (1) and (2) have not been met. The state argues that Orvis obviously knew of the "newly discovered evidence" and since Orvis was tried twice with the defendant, it follows that the defendant either (1) knew about Dickson or (2) lacked diligence in learning about Dickson. This argument overlooks the very real possibility that Orvis did not admit his own participation in the crime to this defendant or this defendant's lawyer since Orvis contended at his three trials that he was not guilty. In order to exonerate this defendant, Orvis would have had to confess his own guilt. There is a reasonable possibility that this defendant is not guilty and in my view another jury should decide his fate. I would grant the defendant a new trial. I am authorized to state that Chief Justice Nichols and Justice Ingram join in this dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343266/	238 Ga. 503 (1977) 233 S.E.2d 763 C. v. MOSLEY CONSTRUCTION COMPANY, INC. v. McCUIN. 31662. Supreme Court of Georgia. Submitted November 9, 1976. Decided March 9, 1977. 505 Calhoun & Bryant, Paul W. Calhoun, Jr., William T. Whatley, for appellant. William T. Darby, Sr., Reid A. Threlkeld, for appellee. GUNTER, Justice. In this case the trial judge held that a restrictive covenant ancillary to a contract of employment was unenforceable. The employer who had sought injunctive relief to enforce the covenant against the employee has appealed. The covenant stated that the employer was "a company engaged in the business of building, developing and selling real estate in Toombs County and Montgomery County, Georgia." It provided that the 504 employee would not, for a period of five years after termination of his employment with the employer, "in any way or means, directly or indirectly, engage in any form of building, developing or selling any type of real estate, in Toombs County or Montgomery County, Georgia." The Georgia Constitution provides that agreements which have the effect of defeating or lessening competition or encouraging monopoly shall be illegal and void. It further provides that the General Assembly shall have no power to authorize such an agreement; and it finally provides that the General Assembly shall enforce this constitutional provision by appropriate legislation. Code Ann. § 2-1409 (1976). The General Assembly has provided that contracts in general restraint of trade are against the policy of the law of this state and cannot be enforced. Code Ann. § 20-504. The evidence showed that the services performed by the employee for the employer, prior to the termination of the employment, were: (1) processing loans, (2) buying and selling houses, (3) acting as general manager of the company's office, (4) answering the phone, (5) general real estate sales, (6) handling purchases of materials for construction projects, (7) filling out estimates, (8) working up second mortgages for corporations, and (9) general bookkeeping duties. The covenant in this case, as we read it and as the trial judge read it, was intended to prohibit all of these activities of the employee in connection with another real estate business, either for himself individually or as an employee of another. So construed, the covenant is overly broad, in excess of any legitimate protection necessary for the employer, and unreasonable. See Mason, Au & Magenheimer &c. Co. v. Jablin, 220 Ga. 344 (138 SE2d 660) (1964). We conclude that the trial judge ruled correctly in holding the covenant unenforceable and denying injunctive relief. Judgment affirmed. All the Justices concur, except Jordan and Hill, JJ., who concur in the judgment only.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343298/	233 S.E.2d 529 (1977) 292 N.C. 399 Margaret Eleanora GALLIMORE, mother, and John Ray Gallimore, father, of Bonnie Lynn Gallimore, Deceased, Employee v. MARILYN'S SHOES, Employer, Bituminous Casualty Corp., Carrier. No. 24. Supreme Court of North Carolina. April 14, 1977. 531 Harold I. Spainhour, High Point, for plaintiffs-appellees. Horton, Singer, Michaels & Hinton by Walter L. Horton, Jr., Raleigh, for defendants-appellants. MOORE, Justice. For an injury to be compensable under our Workmen's Compensation Act (Chapter 97 of the General Statutes of North Carolina), the claimant must prove three elements: (1) That the injury was caused by an accident; (2) that the injury arose out of the employment; and (3) that the injury was sustained in the course of employment. G.S. 97-2(6); Bryan v. Church, 267 N.C. 111, 147 S.E.2d 633 (1966). The findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence. However, the determination of whether an accident arises out of and in the course of employment is a mixed question of law and fact, and this Court may review the record to determine if the findings and conclusions are supported by sufficient evidence. G.S. 97-86; Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Lewter v. Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410 (1954). An assault may be an accident within the meaning of the Workmen's Compensation Act when it is unexpected and without design on the part of the employee who suffers from it. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949). Under the facts in this case we hold that the assault upon Miss Gallimore was an accident within the purview of the Workmen's Compensation Act. We are thus confronted with the issue of whether the finding by the Commission that Miss Gallimore's death was caused by an injury "arising out of" and "in the course of" her employment with Marilyn's is supported by the evidence in the record. The phrases "arising out of" and "in the course of" one's employment are not synonymous but rather are two separate and distinct elements both of which a claimant must prove to bring a case within the Act. In general, the term "in the course of" refers to the time, place and circumstances under which an accident occurs, while the term "arising out of" refers to the origin or causal connection of the accidental injury to the employment. See, e. g., Watkins v. City of Wilmington, 290 N.C. 276, 532 225 S.E.2d 577 (1976); Robbins v. Nicholson, supra. As was stated in Bryan v. Church, supra, 267 N.C. at 115, 147 S.E.2d at 635, the reason for the requirement that an injury arise from the employment is to prevent "our [Workmen's Compensation] Act from being a general health and insurance benefit act." See also Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968). In the cases of Robbins v. Nicholson, supra, and Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728 (1930), this Court has extensively analyzed the term "arising out of" the employment. In Robbins v. Nicholson, supra, the claimants were the survivors of two deceased employees of a grocery store. It appeared from the evidence that on Christmas day, 1967, the husband of one of the deceased employees entered the grocery with a rifle and shot his wife and a co-worker. The shootings had their origin in domestic problems which had arisen between the assailant husband and his wife. The Commission awarded recovery to the survivors. This Court reversed, holding that while the injuries occurred "in the course of" the employment, they did not "arise out of" that employment. In reaching this conclusion, the Court quoted the following from Harden v. Furniture Co., supra, 199 N.C. at 735, 155 S.E. at 730: "`. . . The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'" The Court further held that to be compensable, the injury must be caused by a risk which is reasonably related to and created by the employment. Since the origin of the shootings of the two employees had no relation to their employment, this Court held that no recovery was proper. In Harden v. Furniture Co., supra, the plaintiff was the widow of a deceased employee. The employee was a night watchman and was slain while on the job by a fellow employee. The motive for the slaying was rooted in personal animosity between the two men. This Court denied recovery holding that the death did not arise out of the employment. In its opinion, the Court reasoned that to be compensable the injury must have a causal connection with the conditions under which the work is performed. Accordingly, where the assault upon the employee grows out of a motive foreign to the employment relationship, the necessary connection between the injury and the employment is not present and no compensation for the injury is proper. The case of Walk v. S. C. Orbach Co., 393 P.2d 847 (Okl.1964), is factually similar to the case at bar. In Walk, the employee-claimant sustained injuries when her purse was "snatched" as she was walking to her car at the end of her working day. The car was in a parking lot maintained by her employer and she contended that her injuries were compensable. The Oklahoma Supreme Court denied recovery on the ground that for an injury to be compensable it must arise out of a risk which is in some manner peculiar to the employment. The court reasoned that no recovery should be permitted for an injury caused by a risk to which all persons are exposed. Thus, in the absence of any evidence that the nature of her employment increased the risk of injury or that the employer's parking lot increased the risk of injury (i. e., it was less safe than any other parking lot), the court held that the employee could not recover. This "increased-risk" test has been applied in decisions in other jurisdictions. See Bloom v. Industrial Comm., 61 Ill. 2d 248, 335 N.E.2d 423 (1975); Malacarne v. City of Yonkers Parking Auth., 50 A.D.2d 678, 375 N.Y.S.2d 206 (1975); West v. Home Indemnity Co., 444 S.W.2d 786 (Tex.Civ.App.1969); O'Connor v. American Mutual Liab. Ins. Co., 87 So. 2d 16 (La.App.1956). From these cases, the controlling test of whether an injury "arises out of" the employment is whether the injury is a 533 natural and probable consequence of the nature of the employment. A contributing proximate cause of the injury must be a risk to which the employee is exposed because of the nature of the employment. This risk must be such that it "might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment. The test `excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. . .' " Bartlett v. Duke University, 284 N.C. 230, 233, 200 S.E.2d 193, 195 (1973). In other words, the "`causative danger must be peculiar to the work and not common to the neighborhood. . . .'" Harden v. Furniture Co., supra, 199 N.C. at 735, 155 S.E. at 730. In our view, the unquestioned facts compel the conclusion that the assault which caused Miss Gallimore's untimely death did not arise out of her employment. There is no evidence that the assault and robbery were motivated in any way by her employment. Miss Gallimore was employed to sell merchandise, to make sales reports, and to prepare deposits to be taken to the bank. On the day in question she had completed her work and had signed out. She was not carrying any money belonging to her employer at the time of her abduction, nor was she carrying a bank bag or other article indicating that she was transporting any funds belonging to her employer. There was no evidence that Miss Gallimore ever made bank deposits on behalf of her employer unless accompanied by the manager or assistant manager. Mrs. Gallimore's testimony that she had accompanied her daughter to a "Branch Bank" on two occasions does not establish that her daughter ever made deposits for Marilyn's. Neither is there any evidence that Darrell Lee Young had any information that Miss Gallimore ever carried any money belonging to her employer. Hence, we are unable to conclude that there is any evidence in the record to show that Miss Gallimore's risk of being robbed or abducted was affected by her employment. The risk of the assault upon Miss Gallimore was essentially one common to the neighborhood, not peculiar to the employment, and one which could happen to anyone who patronizes a shopping mall. As found by the Commissioner, "The Westchester Mall was well lighted and was no more hazardous than other areas of High Point. There had been several purse snatchers about the Westchester Mall as well as in other areas of High Point." The tragic and untimely death of Miss Gallimore was caused by the vicious and unreasoned criminal act of Darrell Lee Young, not by an accident arising out of her employment. The cases cited by the Commission in support of its ruling, Craig v. Electrolux Corp., 212 Kan. 75, 510 P.2d 138 (1973), and Boulanger v. First Nat. Stores, Inc., 115 Conn. 665, 163 A. 261 (1932), wherein the Kansas and Connecticut courts upheld compensation awards, are distinguishable from the case at bar. In Craig, the employee's duties consisted of both selling the employer's products and collecting payments from his customers. At the time the employee was slain, he was waiting in his car for a customer to arrive and thus was clearly in the course of his employment. The slayer admitted that he had seen the deceased with a large sum of cash earlier in the day and had followed him with the intent to rob him. This intent to rob, coupled with the fact that the employee was required to carry substantial sums of money in his employment, led the court to uphold an award of compensation. In Boulanger, the employee was in charge of counting the daily proceeds of his employer's grocery store. Through observation, two men concluded that the employee carried the daily proceeds home in his briefcase. Hence, one evening while on his way to a mailbox to post a letter on behalf of his employer, the employee was relieved of his briefcase, shot and killed. The court held that because of his position and responsibilities with his employer, the employee's risk of being robbed 534 was increased and his survivors were entitled to recover. In both Craig and Boulanger there is a clear relation between the employment and the employee's death. The evidence clearly showed in each case that the risk of robbery was increased because of the fact the employee was required to handle the employer's money as a part of his employment. Further, each of the employees possessed or appeared to possess his employer's money at the time of the assaults. In the case at bar, no such evidence appears. Therefore, we do not find these decisions to be controlling. In view of our finding that Miss Gallimore's death did not arise out of her employment, it is not necessary for us to consider whether it arose "in the course of" her employment. For the reasons stated, the decision of the Court of Appeals is reversed and the cause is remanded to that court with direction that it remand to the Industrial Commission for entry of an award for defendant in accordance with this opinion. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2855582/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-08-444-CV LIBERTY MUTUAL APPELLANT INSURANCE COMPANY V. ROY BURK APPELLEE ------------ FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY ------------ OPINION ------------ Liberty Mutual Insurance Company appeals the judgment for Roy Burk in its suit for judicial review of a decision from an Appeals Panel of the Texas Department of Insurance, Division of Workers’ Compensation. Liberty Mutual contends that the evidence is legally and factually insufficient to support the trial court’s finding that Burk’s work-related injury caused his polyneuropathy and foot ulceration. We affirm. Procedural Background Burk suffered a work-related injury to his back in 1998. Although Liberty Mutual accepted the injury, it later disputed the extent of Burk’s injury. Burk prevailed at a Contested Case Hearing (“CCH”) on April 8, 2005, and an appeals panel affirmed the hearing officer’s decision on June 23, 2005. Liberty Mutual then sought judicial review of the appeals panel decision by filing suit in Montague County. Trial was to the court on October 25, 2007, during which Liberty Mutual argued that Burk’s compensable back injury did not extend to his diabetes, polyneuropathy, and foot ulceration. The trial court entered judgment on October 27, 2008, that Burk’s on-the-job back injury does not extend to diabetes but does extend to his polyneuropathy and foot ulcerations. (footnote: 1) The appellate record does not include findings of fact or conclusions of law. Factual Background Burk and Dr. Leonard Hershkowitz, Liberty Mutual’s retained expert witness, testified at trial. Burk testified that he injured his back on December 16, 1998, while working on a drilling rig in South Texas, and that he had back surgery in March 1999. Burk also testified that according to his treating physician, Dr. Malonis, the removal of a disc in his back “obliterated some nerve endings in [his] spine” and caused a lack of sensation in his feet and other problems. Burk reported to the designated doctor in December 1999 that he had continued, although improved, tingling in the bottoms of his feet. Hershkowitz testified that Burk’s March 1999 surgery was a two-level discectomy that included partial removal of a herniated disc between the fourth and fifth lumbar vertebrae. Burk’s herniated disc caused impairment to the L5 nerve root, which Hershkowitz classified as a radiculopathy. Symptoms of a radiculopathy include pain or numbness (or both) on a particular area of the skin or weakness in particular muscles connected to the affected nerve root. Hershkowitz explained that the affected nerve root is often identified by tracing the affected skin area or weakened muscle to the connected nerve root in the spine. Hershkowitz testified that the terms radiculopathy and neuropathy are used interchangeably, but that he does not believe the terms are actually interchangeable. Radiculopathy, according to Hershkowitz, is a nerve root injury closer to the spine and neuropathy is a nerve injury farther away from the spine. Many things can cause neuropathy, but he said diabetes and malnutrition are the two most common causes. Hershkowitz testified that diabetics frequently have neuropathy, that smoking aggravates diabetic neuropathy, and that maintaining blood sugar better maintains the progression of diabetic neuropathy. Burk testified that he had emergency surgery in September 2002 after experiencing increased back pain and an episode of paralysis. Hershkowitz testified that Burk’s progressive back problems were consistent with radiculopathy and included symptoms that radiated into his legs, predominantly into his left lower extremity. The problems caused bladder and ambulation problems, and Burk was unable to perform his job. A large herniated disc, predominately at the L4-L5 interspace, compressed the nerve roots in the lower part of Burk’s spine, leading to a diagnosis of cauda equina syndrome. (footnote: 2) The 2002 surgery involved a decompression laminectomy for a large recurrent herniation at L4-L5, a laminectomy and fusion at L3-L4 and L4-L5, and a fusion from L3 to L5. Hershkowitz testified that the cauda equina syndrome was a continuation of Burk’s on-the-job back injury but opined that the 2002 surgery was successful. Burk had continuing symptoms after the 2002 back surgery, including pain, burning, numbness, and weakness. The January 23, 2003 consultation report by Dr. Bixler lists weakness in Burk’s legs “due to the neuropathic injury of the cauda equina syndrome.” Burk reported to Dr. Bixler in April 2003 that his feet were getting cold on and off, so Dr. Bixler ordered electrodiagnostic studies to follow up on the complications. The studies revealed a nerve root problem involving the left and right lower extremities and generalized polyneuropathy. Dr. Bixler’s narrative report states that the polyneuropathy is probably pre-existing and “familial.” But the narrative report also states that the polyneuropathy made Burk at risk for poor recovery following the herniated disc, even though the polyneuropathy did not cause the herniated disc. (footnote: 3) In September 2006, Dr. Malonis treated Burk for a sore on his left foot. Burk previously had an ulcer on his right foot, and Hershkowitz testified that ulcerations in both feet is compatible with a diabetic condition. Hershkowitz testified that he did not personally examine Burk but felt comfortable relying on the electrodiagnostic studies and offering opinions about the cause of Burk’s polyneuropathy and foot ulcer. Hershkowitz also testified, however, that if Burk were his own patient, he would have interviewed a family member and done additional blood tests to look for undiagnosed causes. Hershkowitz testified that, in his opinion, there was no relationship between Burk’s work injury and his polyneuropathy because Burk’s external foot symptoms did not match the injured nerve roots and because Hershkowitz believes Burk’s diabetes caused the polyneuropathy. Hershkowitz also relied on the adage that “common things happen commonly” and consequently, in his opinion, Burk’s diabetes caused the right foot ulcer because this type of ulceration is very common with diabetes and peripheral neuropathy. Patients with diabetes and peripheral neuropathy have decreased sensation in their feet, meaning that even a small blister can be the source of an ulceration. Hershkowitz testified that he did not find literature suggesting a link between Burk’s nerve root injuries and his foot problems but acknowledged that Dr. Malonis, Burk’s treating doctor, disagreed with his opinion about the cause of the foot ulceration. Hershkowitz further testified that, in his opinion, the cauda equina syndrome did not cause Burk’s foot problems or neuropathy because Burk has an S1 radiculopathy and the nerve roots in S1 do not go to the part of the foot where Burk had problems. Hershkowitz testified that Burk’s diabetes, not the cauda equina syndrome, caused Burk’s foot problems and neuropathy. On cross-examination, Hershkowitz agreed that the cauda equina syndrome was part of the compensable injury and explained that the cauda equina syndrome meant that Burk’s herniated disc caused abnormalities in certain nerve roots in the L4 and L5 area. The compromised nerve roots supply the legs, feet, and toes and caused symptoms of low-back pain, pain in the legs and groin area, and problems with Burk’s bowel and bladder. Specifically, Hershkowitz agreed that Burk’s cauda equina syndrome could cause him to have symptoms in his foot. Hershkowitz acknowledged that the heel, where Burk had his ulcer, is supplied by the nerve roots from S2 and L5 and that Burk had damage to L5. The trial court, without objection from Liberty Mutual, took judicial notice of the hearing officer’s decision from the CCH. The hearing officer’s decision, which was affirmed by the appeals panel, states that Liberty Mutual’s retained expert witness, Dr. William Gaines, testified at the CCH that many of Burk’s symptoms could have been caused by the cauda equina syndrome. Hershkowitz acknowledged Dr. Gaines’s CCH testimony but stated that he disagreed with the opinion. Discussion Liberty Mutual contends that the evidence is legally and factually insufficient to support the trial court’s finding that Burk’s work-related injury caused his polyneuropathy and foot ulceration. A. Workers’ Compensation Act Appeals As Liberty Mutual did in this case, a party may appeal a final decision from an Appeals Panel of the Texas Department of Insurance, Division of Workers’ Compensation to the courts for a modified de novo review. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995). Under this modified de novo review, all issues regarding compensability of the injury may be tried by the jury or court. Id. at 528 . The court, although informed of the appeals panel decision, is not required to accord it any particular weight. Tex. Lab. Code Ann. § 410.304(b) (Vernon 2006) ; Abilene Indep. Sch. Dist. v. Marks , 261 S.W.3d 262, 268 (Tex. App.—Eastland 2008, no pet.) . The fact finder “does not review [the appeals panel decision] for ‘reasonableness,’ but rather independently decides the issues by a preponderance of the evidence.” Garcia , 893 S.W.2d at 531. The party challenging the appeals panel decision bears the burden of proof by a preponderance of the evidence. Tex. Lab. Code Ann. § 410.303 (Vernon 2006). B. Standard of Review In a trial to the court where no findings of fact or conclusions of law are filed, the trial court’s judgment implies all findings of fact necessary to support it. Pharo v. Chambers County , 922 S.W.2d 945, 948 (Tex. 1996); In re Estate of Rhea , 257 S.W.3d 787, 790 (Tex. App.—Fort Worth 2008, no pet.). Where a reporter’s record is filed, as it was in this case, the implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency of the evidence issues . BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002); Estate of Rhea , 257 S.W.3d at 790. Where such issues are raised, the applicable standard of review is the same as that to be applied in the review of jury findings or a trial court’s findings of fact. Roberson v. Robinson , 768 S.W.2d 280, 281 (Tex. 1989). The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) . “In a bench trial, the trial court is the sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may accept or reject all or any part of their testimony, and resolves any conflicts or inconsistencies in the testimony.” Rich v. Olah , 274 S.W.3d 878, 884 (Tex. App.—Dallas 2008, no pet.). As a reviewing court, “we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence.” Id. We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998), cert. denied , 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error , 38 Tex. L. Rev. 361, 362–63 (1960). In evaluating the legal sufficiency of the evidence to support a finding, “we must ‘determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” Sanders v. Total Heat & Air, Inc. , 248 S.W.3d 907, 912 (Tex. App.—Dallas 2008, no pet.) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). “We view the evidence in the light favorable to the finding, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not.” Id . (citing City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005)). If a party attacks the legal sufficiency of an adverse finding on which the party had the burden of proof, and there is no evidence to support the finding, we review all the evidence to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989). When reviewing an assertion that the evidence is factually insufficient to support a finding on which the appealing party had the burden of proof, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the evidence supporting the finding is so contrary to the overwhelming weight of all the evidence that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g) ; Garza v. Alviar , 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate , 150 Tex. 662, 244 S.W.2d 660, 661 (1951). C. Sufficiency of the Evidence As the party appealing the appeals panel decision, Liberty Mutual had the burden to prove by a preponderance of the evidence that Burk’s work-related injury did not cause his polyneuropathy and foot ulceration. Tex. Lab. Code Ann. § 410.303; see also Marks , 261 S.W.3d at 268 . Despite Liberty Mutual’s burden of proof, Liberty Mutual argues there is no evidence to support the trial court’s judgment because Burk did not offer testimony from a medical expert at trial. In doing so, Liberty Mutual cites cases for the proposition that expert medical testimony is required where the injury or condition is beyond the scope of common knowledge and experience of the fact finder. See Schaefer v. Tex. Employers’ Ins. Ass’n, 612 S.W.2d 199, 202 (Tex. 1980); Hernandez v. Tex. Employers Ins. Ass’n , 783 S.W.2d 250, 253 (Tex. App.—Corpus Christi 1989, no writ). While the legal proposition is facially correct, Liberty Mutual appears to ask us to apply the proposition against Burk, who did not have the burden of proof at trial, and hold that Burk presented no evidence that his work-related injury caused his polyneuropathy and foot ulceration. This we cannot do. Instead, our inquiry must focus on whether there is any evidence in the record to support the trial court’s finding that Burk’s work-related injury caused his polyneuropathy and foot ulceration. Uniroyal Goodrich Tire Co. , 977 S.W.2d at 334 . The standard of causation in workers’ compensation cases differs from the standard in other cases. See Flores v. Employees Ret. Sys. of Tex. , 74 S.W.3d 532, 549 (Tex. App.—Austin 2002, pet. denied) (differentiating between “proximate cause” in negligence cases and “producing cause” in workers’ compensation cases). Articulating the producing cause standard applicable to workers’ compensation cases, the Fourteenth Court of Appeals recently stated: Courts liberally construe workers’ compensation legislation to carry out its purpose of compensating injured workers and their dependents. Because of this liberal interpretation, a workplace accident or disease is considered to be a producing cause even if it is not a substantial factor in bringing about the injury, disability, or illness. Therefore, a workplace injury need not be the sole or primary cause in bringing about the disability or illness; rather, as long as the occupational injury is a producing cause of the disability or illness, there is a sufficient causal link under the workers’ compensation scheme. An unrelated condition or injury may even be the primary factor in causing an employee’s disability or death and still not preclude a recovery of workers’ compensation benefits. In addition, a pre-existing condition will not preclude compensation under the system as long as a workplace accident contributed to the injury in some amount. It is settled law in Texas that in a workers’ compensation case, there may be more than one producing cause of an injury, incapacity, or death. Transcontinental Ins. Co. v. Crump , 274 S.W.3d 86, 99–100 (Tex. App.—Houston [14th Dist.] 2008, pet. filed) (internal citations omitted); see also INA of Tex. v. Howeth , 755 S.W.2d 534, 536–37 (Tex. App.—Houston [1st Dist.] 1988, no writ). With these standards in mind, we review the record for any evidence to support the trial court’s finding that Burk’s work-related injury caused his polyneuropathy and foot ulceration. Burk’s work-related injury required surgery in 1999 to repair a herniated disc between his fourth and fifth lumbar vertebrae. The herniated disc caused an impairment to the L5 nerve root, which can further cause symptoms of pain or numbness on a particular area of the skin or weakness in particular muscles connected to the affected nerve root. Burk testified that, according to his treating physician, Dr. Malonis, the removal of a disc in his back “obliterated some nerve endings in [his] spine” and caused a lack of sensation in his feet and other problems. Burk later underwent emergency surgery in September 2002 for cauda equina syndrome, which was caused by a large herniated disc at the L4-L5 interspace that compressed the nerve roots in the lower part of Burk’s spine. The nerve roots supply the legs, feet, and toes, and the impairment caused symptoms of low-back pain, pain in the legs and groin area, and problems with Burk’s bowel and bladder. The heel, where Burk had his ulcer, is supplied by the nerve roots from S2 and L5. It was undisputed at trial that the cauda equina syndrome was a continuation of Burk’s work-related injury. Burk had additional complications after the 2002 surgery including weakness in his legs that Dr. Bixler linked to the cauda equina syndrome. Electrodiagnostic studies revealed a nerve root problem involving the left and right lower extremities and generalized polyneuropathy. Further, Liberty Mutual’s retained expert witness at the CCH, Dr. Gaines, testified that many of Burk’s symptoms could have been caused by Burk’s cauda equina syndrome. Liberty Mutual argues that the appeals panel decision is not evidence that can support the trial court’s judgment because the appeals panel decision was not based on competent medical evidence and because it was not admitted into evidence. We disagree. First, Liberty Mutual did not object before the trial court took judicial notice of the appeals panel decision during the trial. Liberty Mutual therefore waived any objection that the appeals panel decision is not based on competent medical evidence. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1). Second, the appeals panel decision was evidence in the case because the trial court took judicial notice of the appeals panel decision. Liberty Mutual attached the appeals panel decision to its original petition, so the appeals panel decision was included in the trial court’s records in the case. “It is well recognized that a trial court may take judicial notice of its own records in a cause involving the same subject matter between the same, or practically the same, parties.” Sierad v. Barnett , 164 S.W.3d 471, 481 (Tex. App.—Dallas 2005, no pet.) (quoting Gardner v. Martin , 345 S.W.2d 274, 276 (Tex. 1961)). Once the trial court took judicial notice of the appeals panel decision, it was evidence in the case that could potentially support the trial court’s judgment. Id. ; see also ESIS, Inc. v. Johnson , 908 S.W.2d 554, 560 (Tex. App.—Fort Worth 1995, writ denied) (holding that an appeals panel opinion is admissible as evidence under section § 410.306(b) of the labor code). Liberty Mutual also argues that Dr. Hershkowitz’s testimony was uncontroverted and therefore conclusive. “Uncontroverted expert testimony may be regarded as conclusive if the nature of the subject matter requires the jury to be guided solely by the opinion of experts and the evidence is otherwise credible and free from contradictions and inconsistency.” Truck Ins. Exch. v. Smetak , 102 S.W.3d 851, 855 (Tex. App.—Dallas 2003, no pet.) (citing Uniroyal Goodrich Tire Co. , 977 S.W.2d at 338 ). “However, an expert’s testimony may be contradicted by the testimony of other witnesses or by cross-examination of the expert witness.” Id . In this case, Dr. Hershkowitz’s testimony was internally inconsistent. For example, Dr. Hershkowitz testified on direct examination that there was no relationship between Burk’s work injury and polyneuropathy because Burk’s external foot symptoms did not match the injured nerve roots. On cross-examination, however, Hershkowitz testified that Burk’s cauda equina syndrome could cause him to have symptoms in his foot, that the heel, where Burk had his ulcer, is supplied by the nerve roots from S2 and L5, and that Burk had damage to L5. In addition, Hershkowitz testified that he did not personally examine Burk and that if Burk were his own patient, he would have interviewed a family member and conducted additional blood tests to look for undiagnosed causes of Burk’s problems. See Flores v. Cuellar , 269 S.W.3d 657, 661 (Tex. App.—San Antonio 2008, no pet.) (“Even if the nature of the subject matter [required] the trial court to be guided solely by the opinion of experts, the trial court could have properly concluded [the] expert opinions were not otherwise credible and free from contradictions and inconsistency.”). We do not agree that Dr. Hershkowitz’s testimony was conclusive in this case. Based on the foregoing, after reviewing all of the evidence in the light favorable to the trial court’s findings, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not, we hold that there is legally sufficient evidence to support the trial court’s findings that Burk’s work-related injury caused his polyneuropathy and foot ulceration. Likewise, a fter considering and weighing all of the evidence pertinent to the trial court’s finding, we cannot say that the evidence supporting the trial court’s finding is so weak or contrary to the overwhelming weight of all the evidence that it should be set aside and a new trial ordered. We overrule Liberty Mutual’s sole issue. Conclusion Having overruled Liberty Mutual’s issue, we affirm the trial court’s judgment. ANNE GARDNER JUSTICE PANEL: GARDNER, WALKER, and MCCOY, JJ. DELIVERED: August 31, 2009 FOOTNOTES 1: Burk has not appealed the trial court’s finding that his on-the-job back injury does not extend to his diabetes. 2: Hershkowitz testified that cauda equina syndrome is an abnormality in the nerve roots in the lower spine, that a herniated disc is one of the causes of cauda equina syndrome, and that the syndrome is named “cauda equina” because the nerve roots in the lower spine look like a horse’s tail. 3: The electrodiagnostic studies also revealed neuropathy in Burk’s upper extremities, which Hershkowitz suggested was evidence that a person can have diabetic nerve damage without having symptoms.	01-03-2023	09-04-2015
https://www.courtlistener.com/api/rest/v3/opinions/1343491/	258 S.C. 114 (1972) 187 S.E.2d 525 The STATE, Respondent, v. Jerry Lee COX, Appellant. 19383 Supreme Court of South Carolina. March 7, 1972. 115 Benard R. Fielding, Esq., of Charleston, for Appellant. Robert B. Wallace, Esq., Sol., of Charleston, for Respondent. March 7, 1972. BRAILSFORD, Justice: The appellant was convicted of violating Section 46-359, Code of 1962, as amended, making it a misdemeanor "for any motor vehicle driver ... to fail to stop when signaled by any law-enforcement vehicle by means of a siren or flashing light." The appellant assigns three grounds of error: the exclusion of certain evidence; the trial court's refusal to direct a verdict in his favor; and the submission to the jury of the issue of guilt based on aiding and abetting another in the commission of the crime. Shortly past midnight on the morning of March 2, 1970, State Highway Patrolman Kennerly, driving west on Interstate Highway 26 near Charleston, saw two cars stopped side-by-side in the two eastbound lanes. The officer drove some distance further, then crossed the median which divides the highway, approached the two cars from behind, and stopped in back of them. One was a 1969 Pontiac, the other a new Chevrolet. Immediately, both cars raced away. After a high-speed chase of several miles, during the last half of which the patrol car's siren and flashing light were in continuous operation, Patrolman Kennerly succeeded in stopping both cars on the shoulder of the highway. The officer approached the Pontiac, stood at the driver's door, and shone his flashlight into the driver's face. He directed 116 the driver to get out his license and to wait while the driver of the Chevrolet was similarly instructed. When Kennerly began walking toward the Chevrolet, the Pontiac sped away. The ensuing chase, again at high speed and again with siren and flashing light operating, ended when the Pontiac left the roadway, sliding for some distance on its right side and coming to rest in that position. Two occupants exited through the driver's window and attempted to flee. Patrolman Kennerly, judging himself able to catch either one of the pair but not both, chose to apprehend the one whom he recognized as having been the driver. When caught, the appellant protested that he had been only an intoxicated passenger. He disclaimed any knowledge of the driver's identity at that time. At the trial, however, he accused his roommate, one Vaught, of having been the driver. Appellant testified: "Well, I didn't want to get (Vaught) in trouble. I figured if I could take it on myself we'd come out a whole lot better, you know, and just keep him out of it, because I did get caught and he got away, so why bring somebody else into it." At the trial, Patrolman Kennerly unequivocally identified appellant as the driver of the Pontiac. He based the identification on his view by flashlight of appellant's face at close range after the initial chase, and on the fact that appellant's blonde hair contrasted unmistakably with that of his brown-headed passenger when illuminated from the rear by the patrol car's spotlight during the second chase. The Pontiac belonged to appellant. He and Vaught, friends for many years, had spent the day with their girl friends in Myrtle Beach, then returned to Charleston that night and visited some taverns before the events on I-26. The appellant claimed that he was intoxicated and asleep in the passenger's seat during the initial chase. Appellant contends that his motion for a directed verdict should have been granted because the arresting officer's identification of him as the driver was 117 unworthy of belief. This contention, which goes solely to the credibility of the testimony, is manifestly without merit. A verdict of innocence may not be directed in the face of any substantial evidence reasonably pointing to the guilt of the accused. State v. Jordan, 255 S.C. 86, 177 S.E. (2d) 464 (1970), and cases cited therein. The appellant's girlfriend came to Charleston the day after the arrest, and spoke to his companion Vaught. She testified as follows: "... I asked (Vaught) where Jerry was and he told me he was in jail and I asked him why and he said they had had an accident and " The prosecutor interrupted at that point, objecting that "(a)nything he told her is hearsay." Defense counsel rejoined: "It goes to the res gestae, your Honor." The trial judge sustained the prosecutor's objection and defense counsel stated: "We will accept that, your Honor." The defense made no offer to show what the witness' testimony would have been. The appellant now asserts that this witness would have related self-incriminatory statements made to her by Vaught. But there is no indication in the record of what evidence the witness was prepared to give. We may not review error alleged in the exclusion of testimony "`unless the record on appeal to this court shows fairly what the rejected testimony would have been.'" Legrande v. Legrande, 178 S.C. 230, 182 S.E. 432, 436, 102 A.L.R. 582 (1935). The respondent rightly observes that Vaught's self-incriminatory statements might have related to Vaught's own role as passenger, rather than as driver. Moreover, the theory of admissibility which appellant urged at the trial was meritless and has been abandoned. He now contends that the statements, whatever they might have been, were admissible as declarations against penal interest. Appellant may not now rely on a ground of admissibility different from that urged at trial. Bowick v. American 118 Pipe Manufacturing Company, 69 S.C. 360, 48 S.E. 276 (1904); 4 C.J.S. Appeal and Error § 291 (1957). For these reasons, the exclusion of the testimony is not reviewable here. In overruling the motion for a directed verdict, the trial judge expressed the view that even if the jury believed that appellant was a passenger in the car, he could nonetheless be convicted if the jury found that he aided and abetted the commission of the crime. Appellant's subsequent motion for a directed verdict on the issue of aiding and abetting was denied, and the jury was charged on the law of principals. Although not a ground of exception, appellant argues in this brief that he was "not indicted for aiding and abetting." This argument has no basis since one who is present, aiding and abetting the commission of a crime, is a principal, State v. Jiles, 230 S.C. 148, 94 S.E. (2d) 891 (1956), and may be convicted on an indictment charging him alone as such. State v. Hunter, 79 S.C. 73, 60 S.E. 240 (1908); 42 C.J.S. Indictments and Informations § 260 (1944). Appellant's chief contention is that the jury, if it believed him to have been only a passenger, was left with no substantial evidence that he aided Vaught in the commission of the crime. The appellant and Vaught had been friends for a number of years. On the night in question, after returning to Charleston from a visit with their girlfriends, they went drinking together. When first seen by Patrolman Kennerly, the appellant's Pontiac was stopped on the interstate highway alongside another automobile. The strong inference, doubtless drawn by the jury, is that a race was in the offing. Appellant's ownership of the car, inferably poised for an illegal race when the episode began; his failure to exercise his right of control over the operation of the car; his flight from arrest and subsequent attempt to hide Vaught's identity; *119 and his own testimony at trial, combine to form the basis for a reasonable inference of complicity, even if the jury believed him to have been a passenger and not the driver. While we have found no decision on analogous facts involving a similar statute, we find persuasive those decisions in which the non-driving owners of automobiles have been convicted of violating hit-and-run statutes. The cases are collected at 62 A.L.R. (2d) 1130, Sec. 4 (1958). See, e. g., James v. Commonwealth, 178 Va. 28, 16 S.E. (2d) 296 (1941). Affirmed. MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1344285/	188 Ga. App. 439 (1988) 373 S.E.2d 217 AUTO-OWNERS INSURANCE COMPANY v. BARNES. BARNES v. AUTO-OWNERS INSURANCE COMPANY et al. CALDWELL & LANGFORD INSURANCE AGENCY, INC. v. BARNES. 76391, 76392, 76393. Court of Appeals of Georgia. Decided September 6, 1988. Rehearing Denied September 20, 1988. William C. Sanders, for Auto-Owners Russell M. Guttshall III, for Barnes. Mark A. Gonnerman, Dawn G. Benson, for Caldwell & Langford. SOGNIER, Judge. James Barnes, the sole proprietor of a tire service and garage, brought suit against his insurance carrier, Auto-Owners Insurance 440 Company (A-O), Caldwell & Langford Insurance Agency (C & L), an independent insurance agency, and Robert C. Doughty, a licensed insurance agent and officer of C & L, seeking payment for the loss of property of others which had been in Barnes' garage when the premises were destroyed by fire, as well as bad faith penalties and attorney fees against the insurer for failing to pay the claim. The trial court directed a verdict in favor of Doughty, and he is not involved in this appeal. A verdict was also directed in favor of A-O as to Barnes' claim under the liability portion of the policy. The jury returned a verdict in favor of Barnes against A-O but not C & L, and awarded penalties and attorney fees. All three parties appeal. The record reveals that the policy contained a section providing coverage for property damage, as well as one providing liability coverage. In addition to the building and personal property belonging to Barnes, a substantial amount of property belonging to others which Barnes was holding on consignment, as well as tools and equipment belonging to family member employees of Barnes, were destroyed in the fire. Barnes sought payment from A-O under the policy for the loss of his own property, as well as reimbursement for sums he had paid the owners of the consigned property and the tools. While promptly paying Barnes' claim for the building and his own personalty up to the policy limits, A-O paid only $2,000 of Barnes' claim for the personal property belonging to others. 1. In case No. 76391, A-O contends the trial court erred by denying its motion for a directed verdict as to coverage under the property insurance portion of the policy. A-O argues that under specific policy provisions it was obligated to pay Barnes only $2,000 for property belonging to others which was lost or damaged in the fire. The declarations portion of the policy provides that "[t]his insurance shall cover for the account of the owner(s) (other than the named insured) personal property belonging to others in the care, custody or control of the insured. . . ." However, later specific provisions clearly provide property insurance coverage only "up to 2% of the limit of liability specified for Personal Property of the Insured at such location, but not exceeding $2,000, as an additional amount of insurance, to cover . . . direct loss by a peril insured against to personal property, similar to that covered by this policy, belonging to others while in the care, custody or control of the named insured," and state that "[a]s respects personal property belonging to others, this provision shall replace any loss payable provision of this policy." We reject Barnes' argument that the general statement in the declarations controls, as such a construction contradicts explicit language to the contrary later in the policy. "`An insurance policy must be construed as a whole [cit.], and "all of the provisions should be so interpreted so as to harmonize one with the other." [Cit.]' [Cit.]" Wilson 441 v. Southern Gen. Ins. Co., 180 Ga. App. 589, 590 (349 SE2d 544) (1986). Rather we find the language in the declarations to be merely a general statement as to the type of property covered by the policy, the terms of coverage for which are set out specifically later in the policy. "`Insurance is a matter of contract and rules governing construction of contracts are applicable to insurance contracts. [Cit.]' [Cit.]" Id. It is well established that "[u]nder the rules of contract construction, a limited or specific provision will prevail over one that is more broadly inclusive. [Cit.]" Griffin v. Barrett, 155 Ga. App. 509, 510 (271 SE2d 647) (1980). The specific terms in this policy limit the coverage provided for property belonging to others. Although the provisions of an insurance policy "will be construed against the insurer when a part is susceptible of two constructions and a court will adopt that interpretation which is most favorable to the insured . . . [,] if the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as written. [Cit.] Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision `"is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties."' [Cit.]" Simmons v. Select Ins. Co., 183 Ga. App. 128, 130 (358 SE2d 288) (1987). We agree with A-O that the foregoing provisions are clear and unambiguous in limiting coverage for personal property owned by persons other than the named insured to a maximum of $2,000. Accordingly, A-O was entitled to judgment as a matter of law and the trial court erred by denying its motion for a directed verdict as to the issue of coverage under the property insurance portion of the policy. 2. A-O also contends in Case No. 76391 that the award of penalties and attorney fees against it was improper. The award of penalties and attorney fees was based on A-O's refusal to pay more than $2,000. Since "[t]he Supreme Court has held that `[an award of statutory penalties and attorney fees] is not authorized if an insurer had reasonable and probable cause for making a defense to the claim,' [cits.]," Commercial Union Ins. Co. v. F. R. P. Co., 172 Ga. App. 244, 250 (4) (322 SE2d 915) (1984), and we have held in Division 1, supra, that A-O was correct in withholding payment of more than $2,000, under the facts of the instant case we find that neither the statutory penalty nor attorney fees were authorized as a matter of law, id., and the judgment awarding them is consequently reversed. 3. In Case No. 76392, Barnes first asserts the loss of property belonging to other met the requirements for coverage under the liability portion of the policy, and the trial court erred by directing a verdict against him as to this issue. We do not agree. 442 The liability portion of the policy obligated A-O to pay Barnes' claim insofar as the property of others was concerned only to the extent that (a) Barnes' liability was imposed upon him by law, or (b) Barnes assumed liability for damages under a contract as defined by the policy. The policy expressly prohibited Barnes from voluntarily making any payment or assuming any obligation for any expense other than immediate medical relief and further provided that A-O was not subject to suit by Barnes unless he fully complied with all of the terms of the policy and "until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the Company." We find that the claim here meets none of the requirements for coverage under the liability portion of the policy. No evidence was presented that there had been a final legal determination of Barnes' liability to the owners of the destroyed or damaged property, nor did Barnes demonstrate that any liability could be imposed by law against him in favor of the owners of the property. While it is uncontroverted that Barnes paid the claims made upon him by the owners of the destroyed property, it is undisputed that the claims were neither reduced to judgment nor agreed to by the insurance carrier. Thus, Barnes' payment of those claims must be classified, for purposes of the insurance policy, as voluntary payments. As to the contractual assumption of liability provision, Barnes does not contend the agreements he had with the owners of the consigned property fit into five of the six categories of contract, as defined by the policy, the assumption of which would meet the requirements for liability coverage. Rather, Barnes ingeniously asserts that because the sixth category, "sidetrack agreements," was not explained in the policy, it was ambiguous, creating a question of fact and allowing the jury to decide whether Barnes' agreements were "sidetrack agreements" so as to provide liability coverage. However, "[w]ords generally bear their usual and common signification." OCGA § 13-2-2 (2). We agree with the trial court that the term "sidetrack agreements," although not fully explained, clearly refers to railroads, and in its ordinary meaning does not contemplate the agreements made by Barnes. Since Barnes' claim did not meet the requirements for coverage under the liability portion of the policy, a verdict in favor of A-O was demanded as to this issue, and the trial court did not err by granting A-O's motion for a directed verdict as to this issue. 4. The case was submitted to the jury by special verdict, by which they were authorized to consider C & L's liability to Barnes only if they found A-O was not liable to Barnes on the issue of coverage. Because the jury determined A-O was liable to Barnes on the issue of coverage, they did not reach the question of C & L's liability. 443 In his second enumeration of error in Case No. 76392, Barnes appears to maintain that if this court determines that A-O had no liability to him because the policy provided no further coverage, then C & L's liability must be reexamined. We agree that the issue of C & L's liability must be reviewed, and turn to that issue. C & L's liability, as alleged by Barnes, arises from its negligent procurement of insurance which did not provide the coverage desired and sought by Barnes. However, "the general rule [is] that an insured has a duty to examine and reject a policy providing incorrect or insufficient coverage . .. ." King v. Brasington, 252 Ga. 109-110 (312 SE2d 111) (1984). Here, as in Epps v. Nicholson, 187 Ga. App. 246 (370 SE2d 13) (1988), there are no circumstances which operated to create an exception to the general rule that the burden is on the insured to examine the policy issued and determine whether the coverage desired by the insured is provided. The insured's failure to carry this burden does not create a cause of action against the agency which procured the insurance. Ethridge v. Assoc. Mutuals, 160 Ga. App. 687, 690 (288 SE2d 58) (1981). Accord McCullohs Svc. Station v. Wilkes, 183 Ga. App. 687, 690 (1) (359 SE2d 745) (1987); Blalock v. Southern Ins. Co., 180 Ga. App. 319, 320 (349 SE2d 32) (1986). Accordingly, the judgment in C & L's favor is correct, albeit for the wrong reason. It is well established that "[a]n appellate court in reviewing a lower court decision will affirm a judgment which is right for any reason. [Cit.]" Smith v. Fleming, 183 Ga. App. 342, 343 (1) (358 SE2d 900) (1987). 5. It is unnecessary for us to address further the contentions put forth by C & L in Case No. 76393, as our decision in Division 4 of this opinion requires that we affirm the judgment in favor of C & L. Judgment affirmed in Case Nos. 76392 and 76393. Judgment reversed in Case No. 76391. Deen, P. J., and Carley, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1069554/	COURT OF APPEALS OF VIRGINIA Present: Chief Judge Fitzpatrick, Judge Bumgardner and Senior Judge Hodges MAWIA H. MOHAMED MEMORANDUM OPINION* v. Record No. 1105-01-4 PER CURIAM SEPTEMBER 4, 2001 MARRIOTT INTERNATIONAL, INC. AND INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (David Rosenblum; Rosenblum & Rosenblum, L.L.C., on brief), for appellant. (John C. Duncan, III; Duncan and Hopkins, P.C., on brief), for appellees. Mawia H. Mohamed (claimant) contends that the Workers' Compensation Commission erred in finding that he failed to prove that his disability from December 7, 1999 through March 20, 2000, excluding the period of February 7, 2000 to February 20, 2000, was causally related to his July 26, 1998 compensable injury by accident. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. See Rule 5A:27. * Pursuant to Code § 17.1-413, this opinion is not designated for publication. On appeal, we view the evidence in the light most favorable to the prevailing party below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless we can say as a matter of law that claimant's evidence sustained his burden of proof, the commission's findings are binding and conclusive upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). In denying claimant's change-in-condition application, the commission found as follows: The claimant sustained a compensable accident in 1998 from which he completely recovered. For over one year he did his regular work which involved heavy lifting, did not need any medical treatment and he testified he was asymptomatic. On February 4, 1999, he felt back pain after he lifted ten or eleven heavy pieces of luggage. Dr. [Lewis B.] Eberly examined him and found a radiculopathy on the claimant's left side. In 1998, the radiculopathy was in the claimant's right side. Dr. Eberly has not said the claimant's current problems were caused by the 1998 accident. He wrote the claimant had a "recurrent" radiculopathy but never identified if the recurrence was caused by the 1998 accident or the 1999 heavy lifting. There is no claim for the 1999 accident. Without medical testimony of a causal relationship between the original injury and the back problems precipitated by the December 4, 1999, lifting incident, the claimant has failed to sustain his burden of proving causation to a reasonable medical probability. - 2 - "Medical evidence is not necessarily conclusive, but is subject to the commission's consideration and weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). As fact finder, the commission was entitled to weigh the medical evidence. It did so and reasonably inferred that Dr. Eberly's medical records did not contain a persuasive opinion regarding causation. In light of claimant's recovery from the initial injury in 1998, the one-year gap in medical treatment between that injury and the 1999 lifting incident, and the lack of any persuasive opinion from Dr. Eberly regarding causation, we cannot find as a matter of law that claimant's evidence sustained his burden of proving a causal connection between his current disability and his compensable 1998 injury by accident. For these reasons, we affirm the commission's decision. Affirmed. - 3 -	01-03-2023	10-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343303/	238 Ga. 417 (1977) 233 S.E.2d 185 BOYNTON et al. v. CARSWELL et al. BOYNTON et al. v. BARNETT et al. 31459, 31460. Supreme Court of Georgia. Argued September 21, 1976. Decided February 15, 1977. Rehearing Denied March 1, 1977. Harold T. Daniel, Jr., Charles M. Lokey, Ferrin Y. Mathews, for appellants. Fierer & Devine, Foy R. Devine, for appellees. GUNTER, Justice. These two appeals are merely two more in a series of cases coming to this court in which property owners complain of assessments or methods of assessment for ad valorem tax purposes at the local level. These two class actions are almost identical in nature, Case No. 31459 being applicable to 1975 assessments and Case No. 31460 being applicable to 1976 assessments. The taxpayers as a class of residential property owners, comprising three defined areas within the taxing district (Atlanta and Fulton County), brought these actions against the tax assessing and collecting officials of the district. The complaints sought a declaration that the actions of the assessing officials in revising the assessments on their properties were illegal and void, and they sought permanent injunctive relief against the collecting official so as to prevent him from collecting taxes on the basis of the revised and allegedly illegal assessments. The complaints contended that the properties owned by members of the class were the only parcels in the entire taxing district upon which meaningful and substantive reappraisals and re-evaluations had been made for the two years in question; and they further contended that this procedure resulted in a non-uniform, unequal, and discriminatory method of assessment, thereby causing the members of the class to pay taxes that were not proportionate to that of taxpayers throughout the entire taxing district. The complaints did not contend that the properties of the members of the class were assessed in excess of their fair market value; they merely contended that the method used in arriving at the assessments violated the constitutional requirements of uniform taxation, Code Ann. § 2-4603 (1976), and equal protection, Code Ann. § 2-203 (1976). Therefore, these cases actually involve the constitutionality of the method used by the assessing officials in the taxing district to update real estate assessments. The taxing officials filed responsive pleadings in 418 which they contended that the complaints failed to state a claim upon which relief could be granted; they contended that the taxpayers had an adequate remedy at law; they contended that the class actions were not authorized; and they denied that the assessments were a part of an illegal, non-uniform, or discriminatory scheme which denied the taxpayers their constitutional rights. The trial judge consolidated the two cases, conducted a trial without the intervention of a jury, and rendered a judgment in favor of the taxpayers. His judgment declared the method of reassessment illegal, and it enjoined the collection of taxes based on the reassessments for the two years in question. The taxing officials have come here for review, and we reverse the judgment below. The whole thrust of our recent decisions in this subject-matter area has been that disputes of this nature must, if at all possible, be determined within the framework of the machinery established at the local level for resolving such disputes. In short, the trial courts, by resorting to use of their equitable powers, should not entertain these controversies unless procedures established by statute have been utilized for the settlement of such disputes. As a shining example of this thrust, see Tax Assessors v. Chitwood, 235 Ga. 147 (218 SE2d 759) (1975). In Boynton v. Lenox Square, 232 Ga. 456 (207 SE2d 446) (1974), this court ruled: "Atlanta and Fulton County tax assessments made by the Joint City-County Board of Assessors can still be contested by arbitration, and such procedure does accord procedural due process of law to taxpayers who desire to contest the assessment of their property." P. 461. We add here that this method of contesting assessments also accords equal protection of the laws. The taxpayers argued in the trial court and continue to argue here that they did not have an adequate remedy through the arbitration procedure established by statute, and that the trial court properly exercised its equity jurisdiction in these cases. Their brief in this court states: "Given the very limited authority vested in arbitrators reviewing assessments in Atlanta-Fulton County, it is 419 clear that appellees had no adequate remedy at law. It must be remembered that appellees were not raising questions regarding the proper valuation of their property. They were raising questions of constitutional law arising under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, the Equal Protection Clause of the Constitution of Georgia of 1975 ..., and the Uniform Taxation Clause of the Constitution of Georgia of 1945." We disagree with this contention of these taxpayers. It is patently clear that these taxpayers, as a class, were raising the issue of the proper valuation of their properties as a class of properties within the entire taxing district. Their simple contention is that their properties, as a class, are over-assessed in comparison with all other like properties in the entire taxing district because of the method used in assessing their properties as compared to the method used in assessing all other like properties throughout the district. There is no legal or practical reason why this class controversy could not be settled in a class arbitration. The issue between each member of the class in these cases and the Joint Board of Assessors is identical the over-assessment of their properties because of the method of assessment used by the joint board, resulting in non-uniform assessments throughout the district. If that result does come about because of the method used, it is the duty of the arbitrators to rectify such non-uniformity. Furthermore, if the taxpayers or the board are dissatisfied with the arbitrators' decision, they have the right of appeal to the superior court. And such an appeal "shall constitute a de novo action and shall be heard before a jury at the first term following the filing of the appeal." Ga. L. 1974, pp. 3607, 3608. We therefore conclude that the taxpayers in these two cases should have followed the statutory procedure established for contesting the valuations placed upon their properties for the two years in question. Succinctly stated, their complaints did not state a claim for equitable relief, because they had an adequate remedy established by statute. As a matter of policy and judicial economy, trial courts should not entertain these ad valorem tax controversies except through statutory appeal *420 procedures. We reverse the judgment. Having disposed of the primary issue as we have, it is unnecessary to give consideration to the other issues raised in these appeals. Judgment reversed. All the Justices concur, except Nichols, C. J., who is disqualified.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343316/	233 S.E.2d 582 (1977) 292 N.C. 451 Earl Samuel FARMER v. Earl Davis CHANEY and wife, Betty Bowlin Chaney. No. 66. Supreme Court of North Carolina. April 14, 1977. 583 Ottway Burton, Asheboro, for plaintiff-appellant. Allan R. Gitter and William C. Raper, Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendants-appellees. HUSKINS, Justice: Defendants moved for a directed verdict at the close of plaintiff's evidence. The 584 motion was allowed, and plaintiff's sole assignment of error is addressed to the propriety of that ruling. On motion by a defendant for a directed verdict at close of plaintiff's evidence in a jury case, as here, the evidence must be taken as true and considered in the light most favorable to plaintiff. When so considered, the motion should be allowed if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. G.S. 1A-1, Rule 50(a), Rules of Civil Procedure; Investment Properties v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972), vacated on other grounds, 283 N.C. 277, 196 S.E.2d 262 (1973); Adler v. Insurance Co., 280 N.C. 146, 185 S.E.2d 144 (1971); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). Examination of the complaint reveals that plaintiff alleged negligence on defendant's part in that he (1) operated the automobile at a speed greater than was reasonable and prudent under conditions then existing, (2) failed to keep a proper lookout, and (3) failed to keep the vehicle under proper control. For the reasons which follow, we hold that the evidence offered was insufficient, as a matter of law, to support any of these allegations so as to justify a verdict for the plaintiff. Only three witnessesthe plaintiff, his wife, and Patrolman R. D. Smithtestified. The testimony of plaintiff and his wife deals with the nature and extent of the injuries, lost wages, pain and suffering, and other matters bearing upon the measure of damages. As to negligence on defendant's part, the case must stand or fall on the testimony of Trooper Smith. With respect to the speed of the Chaney car, Trooper Smith testified that it was being operated at a speed of 35 to 40 miles per hour in a 55 mile-per-hour zone. The highway on which the accident occurred is a hard-surfaced four-lane road with a 20-foot wide grass median. Each travel lane is twenty-four feet wide. Although the accident occurred at night in a heavy rain, Trooper Smith testified he himself was driving at a speed of 35 to 40 miles per hour and considered that to be a safe speed for the existing conditions. There is no evidence to the contrarynot even from plaintiff himself. Obviously the allegation of negligence based on excessive speed finds no support in the evidence. Likewise, plaintiff's allegation that defendant failed to keep a proper lookout and failed to keep the vehicle under proper control is unsupported by the evidence. All the evidence tends to show that when the car hit the water flowing across the highway, it immediately skidded into the median and flipped over. Plaintiff himself testified that "[w]e was talking, and about that time we ran into water. I heard it hit under the car, and the next thing I know the car flipped over." This testimony, absent evidence to the contrary, forestalls every reasonable inference of negligent operation of the car after it began to skid. The "mere skidding of a motor vehicle is not evidence of, and does not imply, negligence. [Citations omitted.] The skidding of a motor vehicle while in operation may or may not be due to the fault of the driver. [Citations omitted.] Skidding may be caused or accompanied by negligence on which liability may be predicated." Hardee v. York, 262 N.C. 237, 136 S.E.2d 582 (1964); accord, Webb v. Clark, 264 N.C. 474, 141 S.E.2d 880 (1965). In Webb v. Clark, supra, the plaintiff's evidence established that the road was "wet and icy" generally but not near the point of the accident. A passenger called the driver's attention to a patch of ice just before the car skidded on it. This evidence was held to be insufficient to show that the condition of the highway in the area where the skidding commenced was such that skidding could be reasonably anticipated, "and does not show that the skidding of the automobile was caused by any failure of defendant to keep a proper lookout and to exercise reasonable care and precaution to avoid it." The facts in this case are analogous. Even so, plaintiff argues defendant's negligence occurred before the car struck *585 the water, skidded and overturned. Plaintiff strongly contends that the failure of the defendant to see the water flowing across the highway, appreciate the threat it posed and reduce his speed accordingly would permit a jury to find that defendant failed to keep a proper lookout resulting in injury to plaintiff, and thus require submission of that question to the jury. He argues that since Trooper Smith saw the water, defendant could and should have seen it also and taken appropriate precautions. Here, the evidence considered in the light most favorable to plaintiff would permit a jury to find: (1) It was dark and raining heavily; (2) defendant was talking to plaintiff at the time while driving at 35 to 40 miles per hour in a 55 mile-per-hour zone; (3) such speed was reasonable and prudent under existing conditions; (4) the car skidded on a sheet of water one-eighth inch deep, eighteen to twenty feet wide, flowing across the road at right angles; (5) defendant did not see the sheet of water so as to distinguish it from the downpour of rain and recognize the added hazard thus created; and (6) Trooper Smith, going in the opposite direction on the other side of the median, did see a similar sheet of water running across his lane because he was already aware of the hazard, having "slid through it once myself before I found out it was there." We hold that the foregoing evidence is insufficient to raise a permissible inference that defendant failed to keep a proper lookout or failed to keep his vehicle under proper control. According to Trooper Smith, and his testimony is uncontradicted, the water flowing across the highway was a thin film about one-eighth inch deep. It was raining hard at the time and the surface of the highway was already covered with water from the heavy downpour. Under those conditions it is not perceived how a reasonably prudent person similarly situated could and should have distinguished the flowing water from the rainwater on the roadway in time to realize the added hazard and take precautions to avoid it. Trooper Smith saw it only because he "slid through it once" himself before he found out it was there. We hold that the evidence is insufficient to make out a prima facie case of actionable negligence. Defendants' motion for directed verdict was therefore properly allowed. For the reasons stated the decision of the Court of Appeals is AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343327/	141 Ga. App. 419 (1977) 233 S.E.2d 496 CLARK v. PRENTICE-HALL, INC. et al. 53354. Court of Appeals of Georgia. Argued January 12, 1977. Decided February 25, 1977. Scheer & Elsner, Robert W. Breslin, for appellant. Arnall, Golden & Gregory, Cleburne E. Gregory, Jr., William H. Kitchens, for appellees. SHULMAN, Judge. James Clark was employed as a salesman for Prentice-Hall, Inc. After more than two years of employment his supervisor, defendant Parker, fired him. Defendant Arnold, a Prentice-Hall employee who previously held Clark's position was reinstated in that job. Clark brought suit against these three defendants in four counts. The first count alleged that Parker and Arnold had conspired to have Clark discharged and replaced by Arnold. Count 2 alleged that Prentice-Hall approved and sanctioned this conspiracy and thereby became a part of it. The third count was for breach of the employment contract resulting from the conspiracy and the fourth count was for punitive damages. Prentice-Hall and Parker moved for summary judgment on the theory that the employment relation was terminable at will. The motion was granted and this appeal followed. Arnold did not move for summary judgment and remains a defendant 420 in the case. 1. The facts concerning the plaintiff's employment relation with Prentice-Hall are not in dispute. Giving those facts all inferences favorable to the plaintiff they point to only one conclusion, that as a matter of law the plaintiff's contract of employment was indefinite and was, under Code Ann. § 66-101, terminable at will by either party. Lambert v. Ga. Power Co., 181 Ga. 624 (1) (183 S.E. 814). See Land v. Delta Air Lines, Inc., 130 Ga. App. 231 (203 SE2d 316). Where a plaintiff's employment is terminable at will, the employer "with or without cause and regardless of its motives, may discharge the employee without liability. Elliott v. Delta Air Lines, Inc., 116 Ga. App. 36 (156 SE2d 656) and cit." Wilkinson v. Trust Co. of Ga. Associates, 128 Ga. App. 473, 474 (197 SE2d 146). 2. In Lambert v. Ga. Power Co., 181 Ga. 624, 628, supra, the Supreme Court held that "Granting that the allegations of the plaintiff are sufficient to sustain the conclusion of conspiracy, there could be no actionable conspiracy growing out of the exercise, in a lawful manner, of the legal right to discharge the plaintiff." Furthermore, quoting from a decision of the Court of Appeals, the Supreme Court said, "`The averment of a conspiracy in the declaration does not ordinarily change the nature of the action nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully. Where damage results from an act which, if done by one alone, would not afford ground of action, the like act would not be rendered actionable because done by several in pursuance of a conspiracy.' Woodruff v. Hughes, 2 Ga. App. 361 (58 S.E. 551)." 181 Ga. p. 628. See Campbell v. Carroll, 121 Ga. App. 497, 500 (1) (174 SE2d 375) where we held that "a conspiracy to effect what one has a legal right to accomplish is not actionable, ..." See Higginbotham v. Harden, 137 Ga. App. 143 (1) (223 SE2d 156); Rhodes v. Levitz Furniture Co., 136 Ga. App. 514 (2) (221 SE2d 687). These decisions make it clear that even though the plaintiff may or may not have an action against another (see King v. Schaeffer, 115 Ga. App. 344 (1) (154 SE2d 819) and Ott v. Gandy, 66 Ga. App. 684 (1) (19 SE2d 180)), no 421 such action is maintainable against either Prentice-Hall, his employer, or Parker, who the undisputed facts show had the employer's authority to discharge the plaintiff. See Funk v. Baldwin, 80 Ga. App. 177, 180 (1) (55 SE2d 733). Judgment affirmed. Quillian, P. J., and Stolz, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343318/	233 S.E.2d 131 (1977) Elsie P. BROY v. INLAND MUTUAL INSURANCE COMPANY. No. 13757. Supreme Court of Appeals of West Virginia. March 15, 1977. 132 Archibald McDougall, Martinsburg, for appellant. Clarence E. Martin, Jr., Wm. Richard McCune, Jr., Martinsburg, for appellee. MILLER, Justice: On September 11, 1973, the plaintiff, Elsie Broy, recovered a $7,000 jury verdict against Frances J. Miller as a result of injuries received from being struck by a pick-up truck driven by Mrs. Miller with the consent of the owner of the truck, Arthur Broy, plaintiff's husband. Execution was issued on the judgment and returned "no property found." Mrs. Broy then brought the present action against her husband's insurance carrier, the Inland Mutual Insurance Company, for the amount of money Mrs. Miller had been adjudged liable. At the conclusion of the plaintiff's evidence the trial court, upon the motion of the defendant insurance company, directed a verdict in defendant's favor, holding that Mrs. Broy could not recover as a matter of law for either of two reasons. First, if she was a jointly named insured with her husband on the policy sued upon, she was, in effect, suing herself. Secondly, if not a named insured, the doctrine of interspousal immunity precluded her suit in that her husband was a named insured.[1] We reverse as to both theories. Although the plaintiff did not introduce into evidence the insurance policy in existence at the time of the accident, the insurance agent who had issued the policy was subpoenaed and did give some general testimony concerning its provisions. It does not appear questioned that the insurance policy was a standard form of liability insurance conforming to the provisions of W.Va.Code, 33-6-31(a), which requires that a vehicular liability policy issued in this State shall contain what is commonly called an "omnibus clause." Such provision mandates that coverage be extended to any person who uses the vehicle with the consent, express or implied, of the named insured. Likewise, it is demonstrated from the record that the operator of the vehicle at the time of the accident, Mrs. Miller, was operating it with the consent of Mr. Broy, a named insured. This suit brought by Mrs. Broy was based on established law that if an insured with coverage under a liability insurance policy does not pay the underlying judgment entered in a personal injury action, the injured plaintiff may institute a direct action against the insurance company to recover the amount of the judgment up to the limits of the policy. See Hall v. Ocean Accident & Guarantee Corp., 122 W.Va. 188, 9 S.E.2d 45 (1940); Criss v. United States Fidelity & Guaranty Co., 105 W.Va. 380, 142 S.E. 849 (1928); 8 Appleman, Insurance Law and Practice § 4851, et seq. We find no cases decided by this Court touching on the question of whether a named insured is precluded from maintaining a direct action against an insurance company on a judgment obtained against a tort feasor who is an additional insured 133 under the policy. In other jurisdictions where this question has arisen, the courts have generally held that such suit can be maintained. See Annot., 15 A.L.R. 3d 711. The argument usually advanced by the insurance companies in such cases does not appear to be on the basis that the plaintiff, a named insured, is, in effect, suing himself, but is predicated on the idea that to permit a named insured to recover would be to convert the insurance contract from one of indemnity to a personal accident policy for the benefit of the named insured. See Iowa Mutual Insurance Co. v. Meckna, 180 Neb. 516, 144 N.W.2d 73 (1966); 7 Am. Jur.2d Automobile Insurance § 128; 7 Appleman, Insurance Law and Practice § 4409; 12 Couch on Insurance 2d § 45:483. Even this theory has certain conceptual deficiencies. The indemnity aspect of the policy is still maintained since the person indemnified is the additional insured arising out of the omnibus clause provision. The fact that an injured named insured may receive a pecuniary benefit does not change the basic indemnity contract as to the negligent additional insured. Some courts have settled the problem by observing that an insurance policy is to be strictly construed against the insurer and, in the absence of any exclusionary language, which could easily be placed in a policy to preclude recovery in this type of situation, suit may be maintained. Iowa Mutual Insurance Co. v. Meckna, supra; Farm Bureau Mutual Insurance Co. v. Waugh, 159 Me. 115, 188 A.2d 889 (1963); Bachman v. Independence Indemnity Co., 214 Cal. 529, 6 P.2d 943 (1931). This Court has consistently followed the general principle that insurance contracts are to be strictly construed against the insurance company and in favor of the insured. Prete v. Merchants Property Insurance Co. of Indiana, W.Va., 223 S.E.2d 441 (1976); Polan v. Travelers Insurance Co., W.Va., 192 S.E.2d 481 (1972). We, therefore, conclude that where an additional insured causes injury to a named insured under an automobile liability policy, the named insured may, in the absence of any exclusionary language to the contrary, maintain a direct action against the insurance company to recover the amount of the judgment rendered against the additional insured. Here, with no evidence of any exclusionary language and armed with the statutory requirement of the omnibus clause, W.Va.Code, 33-6-31(a), plaintiff should not have been directed out of court on this point. The alternate basis for the lower court's ruling was that if plaintiff was not a named insured the doctrine of interspousal immunity precluded her from maintaining the action against her husband's liability insurer just as she would be precluded from bringing a direct action against her husband. West Virginia recognizes the interspousal immunity doctrine, which arises out of the common law rule that one spouse cannot maintain action against the other for damages from personal injuries. See Campbell v. Campbell, 145 W.Va. 245, 114 S.E.2d 406 (1960), and cases cited therein. While the blanket immunity extended by this doctrine may be subject to question, we need not now review its merits since there are no facts in this case to support such a defense. At no time did Mrs. Broy bring suit against her husband for the injuries she received in the accident, nor did she join him in the present suit against the insurance company. It would indeed be an imaginative extension of the interspousal immunity doctrine to conclude that it arises because Mrs. Miller, the negligent party in the original action, is an additional insured under the insurance policy of plaintiff's husband. The contractual relationship between the named insured and additional insured with the insurance company is one of indemnity. The additional insured, Mrs. Miller, is a member of the class of persons to whom the right of indemnity coverage extends under our statutory requirements relating to the omnibus clause. It is this right of indemnity which Mrs. Broy seeks to have the insurance company honor in the *134 present suit and it is entirely independent of her relationship with Mr. Broy. The insurance company is not drawn into this litigation through any negligence of Mr. Broy and it cannot raise his marital status as a defense to the independent act of the additional insured. While insurance contracts play an important role in our society, they do not broaden a marriage contract. Generally, in order for the doctrine to be properly raised, the suit must be between husband and wife. This is not the case here. Finally, it appears that there was some confusion as to how the request for admissions under Rule 36, West Virginia Rules of Civil Procedure, was to be handled at trial. It appears from the record that the request contained not only statements of matters of fact, but also went to the genuineness of certain documents described in and attached to the request. The trial court had, by order prior to trial, ruled that all requests were deemed admitted since the defendant had not made timely response to the request as provided in Rule 36.[2] At the trial, plaintiff's attorney sought to read the request directly to the jury, but the trial court ruled that this could not be done as there were questions of relevancy and prejudice involved in some of the admitted requests. This Court has not had occasion to discuss the handling of Rule 36 at trial. West Virginia Rule 36 is identical to former Rule 36 of the Federal Rules of Civil Procedure as it existed prior to the 1970 amendments to the Federal Rules. Lugar & Silverstein, W.Va.Rules p. 287. However, the 1970 amendment to Rule 36 of the Federal Rules did not deal with the mechanics of how such admissions are to be used at trial. Indeed, both our Rule 36 as well as Federal Rule 36 are silent on this subject. This Court has made the general observation that the West Virginia Rules of Civil Procedure do not materially change the juridical rules providing for determination of the admissibility of evidence and the competency of witnesses to testify. First National Bank of Ronceverte v. Bell, W.Va., 215 S.E.2d 642, 645-46 (1975). The Federal practice as to Rule 36 admissions is that when offered at trial they are subject to all pertinent objections to admissibility which may be interposed at trial. 4A Moore, Federal Practice § 36.80; Wright & Miller, Federal Practice and Procedure: Civil § 2264. We concur and conclude that the trial court was correct in refusing to permit the entire request to be read to the jury when there were portions containing irrelevant and prejudicial material. Once such matters have been deleted, it is then appropriate to read the admissions to the jury. For the reasons outlined above, the directed verdict in favor of the defendant is set aside and this case is remanded for a new trial. Reversed, remanded, new trial awarded. NOTES [1] Whether the plaintiff had separate insurance coverage or was a jointly named insured with her husband was an issue in dispute at the trial. Plaintiff claimed that she had effectively removed herself from the joint policy prior to the accident and had her own insurance coverage. [2] From the record before us, it does not appear that the defendant sought by motion and notice to obtain additional time to respond to the request on either of the two grounds provided in Rule 36.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1916116/	264 B.R. 209 (2001) In re Lillian B. MAYNARD, Debtor. Highland Federal Bank, Appellant, v. Lillian B. Maynard, Appellee. BAP No. CC-00-1721-PMoB. Bankruptcy No. LA 00-16811-ER. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted May 23, 2001. Decided June 6, 2001. 210 211 Samy S. Henein, Suppa, Trucchi & Lee, San Diego, CA, for Highland Federal Bank. Marc A. Lieberman, Law Office of Marc A. Lieberman, Los Angeles, CA, for Lillian B. Maynard. Before: PERRIS, MONTALI and BROWN,[1] Bankruptcy Judges. OPINION PERRIS, Bankruptcy Judge. Debtor Lillian B. Maynard ("Debtor") filed a motion to value the real property securing a claim held by Appellant Highland Federal Bank ("Highland") at $180,000. The motion sought avoidance of Highland's lien under § 506(d)[2] to the extent the lien exceeded the value of the property. Shortly before the hearing on the motion, Debtor amended her motion to reduce the requested valuation to $120,800. The bankruptcy court granted Debtor's amended motion without allowing Highland to submit evidence in response. We REVERSE and REMAND. FACTS Debtor filed a chapter 13 petition. One of her assets is a piece of real property located at 125 N. Prairie Avenue in Inglewood, California ("the Property"). The Property is owned as community property by Debtor and her husband Walter. Highland is the beneficiary of a trust deed against the Property. The trust deed secures a debt owed to Highland by Debtor and her husband which totaled approximately $218,000 as of the date Debtor filed her petition. Debtor filed a motion captioned Motion for (1) Valuation of Security; (2) Determination of Secured Status; and (3) Avoidance of Liens and Modification of Rights of Lienholders ("the original motion") against Highland.[3] The memorandum accompanying 212 the original motion stated, in part, as follows: Highland's claim is undersecured to the extent it exceeds $180,000. . . . . Pursuant to Rule 3012 . . . "[t]he court may determine the value of a claim secured by a lien on property in which the estate has an interest on motion of any party in interest and after a hearing on notice to the holder of the secured claim and any other entity as the court may direct." Debtor requests that this Court determine the value of . . . [the Property] to be $180,000. . . . . Debtor seeks to avoid Highland's lien . . . to the extent permitted under [sections 506(a), 1322(b)(2) and 1325] by so providing in his [sic] plan. . . . . In this case, the collateral securing Highland's claim . . . is worth $180,000. Therefore, Highland's secured claim should be determined to be $180,000 and the balance deemed unsecured. Debtor supported the original motion with an appraisal dated December 9, 1999 ("the 1999 appraisal"), which valued the Property at $180,000. Highland filed an opposition to the original motion, asserting that there was insufficient evidence to support the proposed valuation because the 1999 appraisal was outdated. Highland also objected on the basis that its security interest could not be avoided to the extent of Walter's interest in the Property. The court held the initial hearing on the original motion on August 28, 2000. Debtor and Highland appeared before the bankruptcy court through their respective counsel. The parties agreed to continue the hearing so that both sides could obtain appraisals. The bankruptcy court entered an order stating in part as follows: [T]he hearing on the Motion is continued to October 16, 2000 at 1:30 p.m. to allow both Debtor and Highland to submit additional appraisals with respect to [the Property]. Debtor and Highland shall exchange appraisals by September 25, 2000. The parties may, but shall not [sic] required to, file and serve comments on each other's appraisals by October 11, 2000. On September 25, Debtor served Highland with her appraisal, which valued the Property at $120,800. Highland did not submit an appraisal by the September 25 deadline. On October 2, Debtor served Highland by mail with a document styled as an amendment to the prayer of the original motion ("the amended motion"). In the amended motion, Debtor requested that the Property be valued at $120,800 and that Highland's lien be modified accordingly. On October 13, Highland filed an appraisal performed by Perry Dean Balkey ("the Balkey appraisal") estimating the market value of the Property at $180,000, less an estimated $10,000 in deferred maintenance costs. At the October 16 hearing, the court observed that Highland filed its appraisal after the September 25 deadline. Highland's attorney stated that he did not timely file an appraisal because Highland had decided not to contest the $180,000 valuation proposed in the original motion after having the property re-appraised. He stated that it was only after Debtor filed the amended motion that Highland determined it would be necessary to file its own appraisal in response. Debtor's counsel requested that the Balkey appraisal be stricken because it was not timely filed. The bankruptcy court granted the request and stated that it 213 would value the property and Highland's secured claim at $120,800 based on Debtor's appraisal, the only evidence of value before the court. On November 6, 2000, the court entered an order stating as follows: 1. The Declaration of Highland's Appraiser is stricken for having been filed 18 days after the deadline set by this Court and one Court day prior to the hearing on the Motion; 2. The fair market value of [the Property] is $120,800 as of August 28, 2000 (the "Confirmation Date") and October 16, 2000 (the "Hearing Date"). 3. Highland's lien against the Property . . . is hereby modified to reflect a secured obligation of $120,800. . . . 4. To the extent that Highland's claim . . . exceeds $120,800 . . ., such claim is stripped as an encumbrance against the Property and shall hereinafter be treated as a general unsecured claim pursuant to Debtor's Chapter 13 Plan. Highland timely appeals from this order.[4] ISSUES[5] 1. Whether Walter's community property interest in the Property prevented the bankruptcy court from avoiding Highland's entire lien to the extent it exceeded the value of the Property. 2. Whether Highland was given adequate opportunity to respond to the amended motion.[6] 3. Whether the bankruptcy court erred in denying Highland's request for a continuance to allow cross examination of Debtor's appraiser. STANDARD OF REVIEW Highland's argument that Walter's interest in the Property prevented the bankruptcy court from avoiding its lien presents a question of law which we review de novo. In re P.R.T.C., Inc., 177 F.3d 774, 780 (9th Cir.1999) (conclusions of law are reviewed de novo). A trial court's decision regarding management of litigation is reviewed for an abuse of discretion. Gilbrook v. City of Westminster, 177 F.3d 839, 864 (9th Cir.1999), cert. denied, 528 U.S. 1061 (1999). Trial courts have inherent power to control their dockets as long as exercise of that discretion does not nullify the procedural choices reserved to parties under the applicable rules of procedure. See Atchison, Topeka and Santa Fe Ry. Co. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir.1998). A bankruptcy court necessarily abuses its discretion if it bases its decision on clearly erroneous factual findings or on an incorrect legal standard. In re Hammer, 112 B.R. 341, 345 (9th Cir. 214 BAP 1990), aff'd, 940 F.2d 524 (9th Cir. 1991). DISCUSSION 1. Walter's interest in the Property did not prevent the bankruptcy court from avoiding Highland's entire lien to the extent it exceeded the value of the Property. Highland argues that the bankruptcy court erred in stripping its lien as to Walter's interest in the Property because Walter, a non-debtor, holds an interest in the Property. We reject Highland's argument. Section 506(a) provides, in relevant part, as follows: An allowed claim of a creditor secured by a lien on property in which the estate has an interest . . . is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property . . . and is an unsecured claim to the extent that the value of such creditor's interest . . . is less than the amount of such allowed claim. With certain exceptions not implicated here, a lien is void to the extent it secures a claim that is not an allowed secured claim under § 506(a). § 506(d). "That value which the court is charged with determining under section 506 . . . is the value of the creditor's secured claim against property of the estate." 9 Lawrence P. King, COLLIER ON BANKRUPTCY ¶ 3012.01 (15th ed. Rev.1997). Section 541(a) provides that property of the estate includes: (2) All interests of the debtor and the debtor's spouse in community property as of the commencement of the case that is (A) under the sole, equal, or joint management and control of the debtor; or (B) liable for an allowable claim against the debtor, or for both an allowable claim against the debtor and an allowable claim against the debtor's spouse, to the extent that such interest is so liable. (Emphasis supplied.) To the extent that the provisions of § 541(a)(2)(A) or (B) are met, the community property of both spouses becomes property of the estate when one spouse files a bankruptcy petition. In re Miller, 167 B.R. 202, 205 (Bankr.C.D.Cal.1994). The Property is owned by Debtor and Walter as community property and Highland does not contend otherwise.[7] Highland also does not contest that the requirements of § 541(a)(2) are met in this case. With very limited exceptions not applicable here, California law provides that each spouse has an equal right to manage community property. Lawrence P. King et al., COLLIER FAMILY LAW ¶ 4.03[3][c] (Rev.2000). As a result, the Property is included in Debtor's estate and Highland's entire lien was subject to valuation and avoidance under § 506. The only authority cited by Highland in support of its position is In re Rodriguez, 156 B.R. 659 (Bankr.E.D.Cal.1993). In Rodriguez, the debtor owned a 50% interest in an automobile. The other 50% was owned by a "third party co-owner/co-obligor." 156 B.R. at 660. The bankruptcy court stated that "section 506 permits valuation only of the estate's interest in the property[,]" and concluded that "a debtor 215 holding only a fractional interest in property cannot utilize section 506 to value a secured claim." Id. The facts of Rodriguez are clearly distinguishable from those of this case. In Rodriguez, only the debtor's fractional interest became property of the estate. Here, the entire Property, not just Debtor's interest, is included in the bankruptcy estate. 2. Highland was not given an adequate opportunity to respond to the amended motion. The procedural framework for valuing collateral pursuant to § 506(a) is set forth in Rule 3012, which states as follows: The court may determine the value of a claim secured by a lien on property in which the estate has an interest on motion of any party in interest and after a hearing on notice to the holder of the secured claim and any other entity as the court may direct. Section 102(1)(A) defines "after notice and a hearing" and similar phrases to mean "after such notice as is appropriate in the particular circumstances, and such opportunity for a hearing as is appropriate in the particular circumstances[.]" Similarly, due process requires that deprivation of property be preceded by notice and opportunity for hearing "appropriate to the nature of the case." In re Yochum, 89 F.3d 661, 672 (9th Cir.1996) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)). [N]otice is to be taken particularly seriously when liens are being affected in bankruptcy. Holders of liens that may be adversely affected are entitled to unambiguous notice and an adequate opportunity to reflect and to respond. In re Loloee, 241 B.R. 655, 662 (9th Cir. BAP 1999). The problem in this case is that the bankruptcy court's decision to grant the relief requested in the amended motion while enforcing the schedule for submission of evidence established in connection with the original motion denied Highland an adequate opportunity to respond to the amended motion. The situation presented here is analogous to an amendment to conform pleadings to evidence under Fed.R.Civ.P. 15(b). Under that rule, a court may allow the amendment of a pleading to conform to evidence presented at trial "only if the parties have received actual notice . . . and have been given an adequate opportunity to cure any surprise that might result from the change in the pleadings." 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 1491 (2d ed.1990). In this case, the bankruptcy court denied Highland the opportunity to cure the surprise resulting from Debtor's amendment of her motion when it refused to accept the Balkey appraisal as a response to the amended motion. 3. The bankruptcy court did not err in denying Highland's request for a continuance to allow cross examination of Debtor's appraiser.[8] At the October 16 hearing, Highland requested a continuance so that an evidentiary hearing could be held. Highland states in its brief that disputed questions of material fact necessitated and entitled *216 it to an evidentiary hearing to allow it to cross examine Debtor's appraiser. We need not reach the question of whether Highland was entitled to cross examine Debtor's expert appraiser because its request for a continuance at the October 16 hearing was procedurally deficient. Local Rule 9013-1(6)(a) of the United States Bankruptcy Court for the Central District of California provided that, unless the court orders otherwise, "any motion for the continuance of any hearing shall be filed with the Court and personally served upon all previously noticed parties at least two (2) Court Days before the day set for the hearing."[9] The motion must set forth in detail the reasons in support of the requested continuance. Id. Highland filed no such motion in this case. CONCLUSION Highland was not afforded an opportunity to respond to Debtor's amended motion. We REVERSE and REMAND. The bankruptcy court is instructed to admit the Balkey appraisal into evidence and consider that evidence in valuing the Property under § 506. NOTES [1] Hon. Trish M. Brown, Bankruptcy Judge for the District of Oregon, sitting by designation. [2] Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules XXXX-XXXX. [3] Debtor filed the original motion against Highland and another entity holding a secured claim against a separate piece of real property. This appeal only concerns Highland. [4] Highland also timely appealed from the order denying its motion for reconsideration. Because we conclude that the bankruptcy court erred in refusing to consider the Balkey appraisal as a response to the amended motion, it is not necessary for us to address this issue. [5] In her brief, Debtor requests sanctions against Highland for the prosecution of a frivolous appeal. Given the outcome of this appeal, this is not a frivolous appeal. Further, a request for sanctions must be made in a separately filed motion. Rule 8020. A request for sanctions in a party's appellate brief is not sufficient. In re Del Mission Ltd., 98 F.3d 1147, 1154 (9th Cir.1996); Gabor v. Frazer, 78 F.3d 459, 459 (9th Cir.1996). We therefore deny Debtor's request for sanctions. [6] Highland's counsel stated at oral argument that Highland did not challenge the propriety of allowing the motion to be amended. Thus we treat Highland's suggestion in its brief that it did not receive adequate notice of the amendment as an argument that has been waived. [7] The Deed of Trust indicates that the Property is owned by Debtor and Walter as community property. [8] Highland argues that the bankruptcy court abused its discretion when it denied the requested continuance. Although the outcome of this appeal may make moot resolution of this issue, we address the issue so that it will not remain unresolved in the event that the bankruptcy court decides the matter following remand without evidentiary submissions other than the two appraisals. [9] Local Rule 9013-1(6)(a) was renumbered to 9013-1(f)(1) effective January 2001.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1725583/	675 So. 2d 1125 (1996) TEKNIKA ELECTRONICS CORPORATION v. SATELLITE EARTH STATIONS OF LOUISIANA, INC. No. 96-CC-1268. Supreme Court of Louisiana. June 28, 1996. Denied. VICTORY, J., not on panel.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2632599/	103 P.3d 571 (2004) 136 N.M. 647 2004-NMSC-039 Deanna NAVA, Plaintiff-Appellee-Cross-Appellant, v. CITY OF SANTA FE, a municipality under state law, Defendant-Appellant-Cross-Appellee. No. 28,220. Supreme Court of New Mexico. October 13, 2004. Rehearing Denied November 18, 2004. 573 Mark D. Jarmie, Albuquerque, NM, Mark L. Allen, Assistant City Attorney, Santa Fe, NM, for Appellant-Cross-Appellee. Michael Schwarz, Santa Fe, NM, for Appellee-Cross-Appellant. OPINION MINZNER, Justice. {1} Defendant City of Santa Fe appeals directly to this Court from an adverse judgment in favor of Plaintiff Deanna Nava on her New Mexico Human Rights Act (NMHRA) claim. At trial, Plaintiff alleged her immediate supervisor discriminated against her because of her sex, and Defendant, as her employer, knew of this discrimination and failed to take remedial action. On appeal, Defendant claims that the district court erred in its instructions to the jury and that there was not substantial evidence to support the jury's verdict. Plaintiff cross-appeals claiming that the district court erred by granting Defendant's motion for remittitur, refusing to award statutory interest against Defendant, and reducing her attorney's requested fees. We have jurisdiction in this case pursuant to NMSA 1978, § 28-1-13(C) (1987), which provides for direct appeal to the Supreme Court for claims made under the NMHRA. We affirm the district court on each of the issues raised in this appeal. I {2} Plaintiff has been employed by Defendant as a police officer since 1993. In January 1999, one of her first-line supervisors became Sgt. Clarence Gallegos. In July 2000, the Santa Fe police department was reorganized and Plaintiff was reassigned to a different squad. Therefore, she remained under the supervision of Sgt. Gallegos for approximately nineteen months. Plaintiff claims that during this nineteen-month period she was harassed by Sgt. Gallegos on an almost daily basis because of her sex, and this harassment resulted in a hostile work environment. At trial, Plaintiff testified that Sgt. Gallegos checked on her location more than other officers, raised his voice to her, denied her many of the same privileges male officers were afforded, followed her to her house to monitor how long she took on bathroom breaks, assigned rape calls to her even when other officers were closer to the scene of the crime, and threw a file folder at her on one occasion. The jury found for Plaintiff and awarded her $285,000 in damages. {3} Following the verdict, the district court ruled on several post-trial motions. The district court denied Defendant's motion for a new trial, but granted a remittitur of the jury's verdict to $90,250. The district court also refused to award Plaintiff post-judgment interest because Defendant, as a political subdivision of the State, was exempt from paying such interest. Finally, although Plaintiff's attorney sought statutory attorney's fees at a rate of $230 per hour, the district court determined that $200 per hour was the more appropriate rate. Both parties have appealed to this Court. II {4} Plaintiff bases her NMHRA sexual harassment claim on a hostile work environment theory. The NMHRA, NMSA 1978, § 28-1-7(A) (2004), provides that "[i]t is an unlawful discriminatory practice for an employer ... to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of ... sex." This language from the NMHRA tracks Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (2000). For this reason, "[w]hen considering claims under the NMHRA, we may look at federal civil rights adjudication for guidance in interpreting the NMHRA." Ocana v. Am. Furniture Co., 2004-NMSC-018, 574 ¶ 23, 135 N.M. 539, 91 P.3d 58; see also Smith v. FDC Corp., 109 N.M. 514, 517, 787 P.2d 433, 436 (1990). {5} The United States Supreme Court has interpreted the phrase "compensation, terms, conditions or privileges" in Title VII as prohibiting inter alia discriminatory conduct by employers that "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64-65, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) (quoting 29 CFR § 1604.11(a)(3) (1985)). Recently, in Ocana, we gave the same interpretation to the NMHRA: "sexual harassment is actionable under a hostile work environment theory when the offensive conduct becomes so severe and pervasive that it alters the conditions of employment in such a manner that the workplace is transformed into a hostile and abusive environment for the employee." 2004-NMSC-018, ¶ 24, 135 N.M. 539, 91 P.3d 58. {6} The elements of a hostile work environment claim against an employer have generally been stated as: [1] the employee was subjected to unwelcome sexual harassment; [2] the harassment occurred because of the employee's sex; [3] the harassment was sufficiently severe or pervasive to create an abusive work environment affecting a term, condition, or privilege of employment, and; [4] the employer knew, or should have known, of the harassment and failed to take remedial action. Lawrence Solotoff & Henry S. Kramer, Sex Discrimination and Sexual Harassment in the Work Place § 3.04[2], at 3-31 (2004). The discriminatory conduct does not have to be overtly sexual in order to constitute harassment; rather, a hostile work environment claim may arise from disparate treatment on the basis of sex. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998) (noting that a hostile work environment claim could be established by "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace"); Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998) ("[A]ctionable conduct is not limited to behavior motivated by sexual desire."). With these general principles in mind, we turn to the specific issues raised by this appeal. A {7} The first issue we address involves the instructions given by the trial court to the jury. The jury was instructed on each element of Plaintiff's hostile work environment claim; however, Defendant argues that the jury was improperly instructed that it need only find that "plaintiff's sex was a motivating factor in the treatment of the plaintiff" and that Plaintiff was "not required to prove that her sex was the Defendant City of Santa Fe's sole motivation or even the primary motivation." Defendant argues that instead, the jury should have been instructed that any harassment was "because of her sex" and the harassment would not have occurred "but for" the complainant's sex. While not quite stated in these terms, Defendant appears to be arguing that Plaintiff's sex must have been either the sole or primary motivation for any harassment. Thus, we must consider whether the mixed-motives instruction given to the jury in this case was appropriate. {8} Turning to federal law for guidance on this issue, we note that Congress has recognized that there are often multiple causes for adverse employment actions. Title VII, 42 U.S.C. § 2000e-2(m) provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." (Emphasis added). Thus, it appears under federal law that an employee is not required to prove that his or her sex was the sole or primary motivation for the suffered harassment. The employee must only establish that the adverse employment action was motivated in part by an illegitimate factor, such as sex. 575 {9} The NMHRA does not have a comparable provision to 42 U.S.C. § 2000e-2(m); however, we did recently note that the purpose behind the NMHRA is to prohibit all forms of employment sexual harassment. Ocana, 2004-NMSC-018, ¶ 23, 135 N.M. 539, 91 P.3d 58. Given this purpose, we believe the Legislature did not intend for an employer to be relieved from an otherwise valid hostile work environment claim simply because other factors aside from sex contributed to making the employee's work environment hostile and abusive. Cf. Dan B. Dobbs, The Law of Torts § 171, at 416 (2001) ("It would be a windfall to the negligent defendants if they were to escape liability for the harm merely because another tortfeasor's negligence was also sufficient to cause the same harm."). We hold that the mixed-motives jury instruction given in this case was not erroneous. We now turn to Defendant's next argument, whether there was substantial evidence to support the jury's verdict. B {10} In reviewing the jury verdict for substantial evidence, "we examine the record for relevant evidence such that `a reasonable mind might accept as adequate to support a conclusion.' "Smith, 109 N.M. at 519, 787 P.2d at 438 (quoting Toltec Int'l, Inc. v. Village of Ruidoso, 95 N.M. 82, 84, 619 P.2d 186, 188 (1980)). "We resolve disputed facts in favor of the party prevailing below, indulging all reasonable inferences in favor of the verdict and disregarding contrary inferences, and we do not independently weigh conflicting evidence." Id. Defendant argues that the jury verdict for Plaintiff must be reversed because there was neither substantial evidence that the harassment was "because of" Plaintiff's sex nor substantial evidence that the harassment was sufficiently severe or pervasive to support a hostile work environment claim. {11} As for whether there was sufficient evidence the harassment was "because of" Plaintiff's sex, a review of the record reveals that numerous witnesses at trial testified that Sgt. Gallegos treated the female officers differently from the way he treated the male officers. Plaintiff testified that Sgt. Gallegos would ask for the locations of women officers but not the locations of the male officers. Male officers were relieved by Sgt. Gallegos from standing post at crime scenes, even when they had been at their posts less time than Plaintiff. Sgt. Gallegos would collect the reports of male officers a couple of hours before their shift was over, but he would not collect Plaintiff's reports until the end, or sometimes even after, her shift. {12} A number of other employees of the Santa Fe police department testified that Sgt. Gallegos treated female officers differently from their male counterparts. Jeanette Sandoval, a dispatcher, testified that Sgt. Gallegos tended to monitor the whereabouts of female officers more than he did male officers. He also tried to keep female officers busier by reassigning to them calls initially assigned to male officers. Officer Sandra Gomez testified that Sgt. Gallegos made the environment "a nightmare" for female officers. More specifically, she testified that Sgt. Gallegos was always spying on female officers. Along those same lines, Officer Genevieve Lawson testified that the female officers were monitored more closely by Sgt. Gallegos than the male officers. She was assigned a larger workload than her male co-workers. Officer Della Murray testified that Sgt. Gallegos made snide comments when she was late for briefings but would refrain from making such comments when male officers were late. Sgt. Gallegos would make her get into his car to drop off reports, whereas the men would pull up beside his car and pass the reports through the window. Sgt. Gallegos would at times cancel backup for female officers. Even a male officer, Detective Matthew Trujillo, testified to Sgt. Gallegos' disparate treatment of female and male officers. He testified that Sgt. Gallegos would actively check dispatch to see where female officers were at any given time, and he would reassign calls from male officers to female officers. Based on the foregoing, there was substantial evidence to support a jury finding that any harassment Plaintiff suffered from Sgt. Gallegos was "because of" her sex. {13} We next consider whether there was sufficient evidence that the harassment 576 was sufficiently severe or pervasive to alter a term, condition, or privilege of employment. In Ocana, we stated: In determining whether there was an abusive or hostile work environment, courts must look at the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." 2004-NMSC-018, ¶ 24, 135 N.M. 539, 91 P.3d 58 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). Alternatively, "[a] recurring point in [the United States Supreme Court's Title VII] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher v. Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (citation and internal quotation marks omitted). Defendant claims that any harassment in this case was not sufficiently severe and pervasive to support the jury's verdict. {14} Plaintiff testified to a number of incidents of harassment. She testified that Sgt. Gallegos would check her location more than other officers. He would raise his voice to her over the radio. He would allow male officers to leave their shift early if they missed their lunch, while not extending the same offer to her. She testified that on one occasion Sgt. Gallegos did not relieve her from her post at a crime scene when she had been there for five hours, but he relieved male officers who had not been at the scene as long. Sgt. Gallegos would follow Plaintiff to her house and then monitor how long she took on bathroom breaks. He would assign specific calls to her, especially rape calls, even though other officers were closer to the crime scene. He would not collect her reports until the end of her shift, or sometimes after her shift had ended, whereas he would collect other officers' reports a few hours prior to the end of their shifts. At one briefing, he told the officers to clean out their files and then threw a file at Plaintiff. Plaintiff emphasized that these were merely examples of the ongoing harassment she received from Sgt. Gallegos for nineteen months. {15} Each incident to which Plaintiff testified, when viewed in isolation, may not have been severe enough to support a hostile work environment claim. However, in their aggregate, the incidents reflect the severity and pervasiveness of the harassment. This is especially true considering the harassment was almost daily for a period of nineteen months. Thus, under the totality of the circumstances, we hold that a reasonable jury could conclude that the harassment was sufficiently severe and pervasive to alter the terms and conditions of Plaintiff's employment. We now turn to Plaintiff's arguments on cross-appeal. C {16} Plaintiff first argues that the trial court erred by reducing through remittitur the jury's verdict in her favor from $285,000 to $90,250. In Allsup's Convenience Stores, Inc. v. North River Ins. Co., 1999-NMSC-006, 127 N.M. 1, 976 P.2d 1, we set forth the analytical framework for reviewing the grant of a remittitur. We stated: The trial judge ... has limited superintendence when ordering a remittitur in that the exercise of such discretion must be supported by express reasons, and those reasons must establish the presence of passion, prejudice, partiality, sympathy, undue influence or some corrupt cause or motive....[W]here the trial court sets forth certain reasons for which the appellant asserts there is a lack of support in the record, the burden then shifts to the appellee to show that the trial court was correct. Id. ¶ 19 (quotation marks and internal citations omitted). Additionally, we note that remittitur is appropriate in NMHRA cases if the jury intended to punish the defendant. See Gandy v. Wal-Mart Stores, Inc., 117 N.M. 441, 443, 872 P.2d 859, 861 (1994) (holding that punitive damages may not be recovered under the NMHRA). 577 {17} In justifying remittitur in this case, the trial judge stated that he believed the jury's verdict was based upon either sympathy or an improper motive to punish Defendant. He believed this because: (1) Plaintiff was not fired, demoted, suspended, or disciplined; (2) Plaintiff presented no evidence of concrete special damages; (3) Plaintiff received no professional mental health care; (4) the discrimination was limited to a nineteen-month period; and (5) Plaintiff received two-and-a-half times the amount requested in her closing argument. Thus, in this case, the trial judge expressly stated his reasons for granting remittitur. The specific issue raised by Plaintiff on appeal is whether those reasons established that the the jury's award was influenced by either sympathy or an impermissible motive to punish Defendant. {18} At trial, Plaintiff presented no evidence of concrete damages, such as counseling expenses or lost time from work. Instead, Plaintiff argued that the jury should award damages equivalent to Plaintiff's salary during the time of harassment, or at the very least nominal damages. These requested damages appear to be based on the emotional distress that she experienced while working under Sgt. Gallegos. The jury, however, awarded Plaintiff damages in an amount equal to Plaintiff's salary for five years: $285,000. While a plaintiff's request for damages certainly does not create a ceiling on a jury's award, the plaintiff is nonetheless in the best position to evaluate the true extent of his or her damages. {19} Furthermore, the record contains no evidence indicating that Plaintiff was entitled to damages greater than those requested. There was testimony at trial that due to the harassment she suffered, Plaintiff was distressed, depressed, and often resigned to tears. While we agree that this evidence was sufficient to support a damages award for emotional distress, the evidence was not sufficient to support an award of $285,000. Cf. Wulf v. City of Wichita, 883 F.2d 842, 874-75 (10th Cir.1989) (holding that an award of $250,000 for mental anguish and distress was grossly excessive). Plaintiff did not present any evidence that she ever sought counseling for this emotional distress. She presented no evidence that she was physically harmed. At all times she remained an officer in good standing. Thus, we agree with the Fourth Circuit Court of Appeals, which when faced with similar facts stated that, "[s]imply put, the jury was presented with insufficient evidence to place a high dollar value on plaintiff's emotional harm." Hetzel v. County of Prince William, 89 F.3d 169, 172 (4th Cir.1996) (quotation marks and quoted authority omitted). {20} Based on the foregoing, we hold that Defendant has met its burden in showing that remittitur was appropriate. The jury's award in this case was "so unrelated to the injury and actual damages proven as to plainly manifest passion and prejudice rather than reason or justice." Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 53, 127 N.M. 47, 976 P.2d 999 (quotation marks and quoted authority omitted). Thus, the trial court appropriately granted Defendant's motion for remittitur. We now turn to Plaintiff's argument that the trial court erred in denying her post-judgment interest on the verdict. D {21} Plaintiff claims she is entitled to post-judgment interest, pursuant to NMSA 1978, § 56-8-4 (1993, prior to 2004 amendment). Subsection A of that statute provides for mandatory post-judgment interest; however, subsection D of the same statute states "[t]he state and its political subdivisions are exempt from the provisions of this section except as otherwise provided by statute or common law." Plaintiff argues that the NMHRA provides for post-judgment interest. Section 28-1-13(D) provides that "[i]n any action or proceeding under this section if the complainant prevails, the court in its discretion may allow actual damages and reasonable attorney's fees, and the state shall be liable the same as a private person." (Emphasis added). Specifically, Plaintiff argues that since a private party is responsible for post-judgment interest, government entities should likewise be responsible for post-judgment interest. {22} In Gonzales v. New Mexico Dep't of Health, 2000-NMSC-029, ¶¶ 37-38, 129 N.M. 586, 11 P.3d 550, we rejected a similar argument. 578 In that case, the plaintiff argued that Section 28-1-13(D) is a statutory exception to Section 56-8-4(A) that requires state entities to pay interest on judgments for violations of the NMHRA. Our reasoning for rejecting the argument was two-fold. First, we stated that any interest award under Section 56-8-4 is discretionary. Gonzales, 2000-NMSC-029, ¶ 38, 129 N.M. 586, 11 P.3d 550. As the Court of Appeals later noted, this statement was not entirely accurate: while an award of pre-judgment interest under Section 56-8-4(B) is discretionary, an award of post-judgment interest under Section 56-8-4(A) is mandatory. Weststar Mortg. Corp. v. Jackson, 2002-NMCA-009, ¶ 55, 131 N.M. 493, 39 P.3d 710, rev'd on other grounds, 2003-NMSC-002, 133 N.M. 114, 61 P.3d 823. In this case, we are addressing post-judgment interest. Nonetheless, the second reason we advanced for our holding in Gonzales remains valid-"Section 28-1-13(D) makes no mention of the assessment of interest, and [the plaintiff] has offered no authority suggesting that the phrase `actual damages and reasonable attorney's fees' should be expanded to include interest." 2000-NMSC-029, ¶ 38, 129 N.M. 586, 11 P.3d 550. {23} Furthermore, the result we reached in Gonzales is consistent with the analysis we set forth in Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305. The plaintiffs in Trujillo claimed they were entitled to post-judgment interest against the City of Albuquerque for claims made under the Tort Claims Act (TCA). The relevant statute considered in that case, NMSA 1978, § 41-4-19(B) (1991, prior to 2004 amendment), provides that judgment against a government entity under the TCA could not include an award for pre-judgment interest. The plaintiffs argued that by excluding post-judgment interest from the scope of Section 41-4-19(B) the Legislature must have intended to allow recovery of post-judgment interest. We rejected that argument on the basis that Section 41-4-19(B) "does not expressly state that the immunity provided to the [S]tate and its political subdivisions for post-judgment interest is waived under the TCA." Trujillo, 1998-NMSC-031, ¶ 47, 125 N.M. 721, 965 P.2d 305. In this case, Plaintiff is not entitled to post-judgment interest for her claim under the NMHRA because Section 28-1-13(D) does not explicitly waive the State's immunity from post-judgment interest. Therefore, we affirm the trial court on this issue. We now turn to Plaintiff's final argument that the trial court erred by reducing her attorney's requested statutory fees. E {24} Section 28-1-13(D) provides that "[i]n any action or proceeding under [the NMHRA] if the complainant prevails, the court in its discretion may allow actual damages and reasonable attorney's fees." The district court should consider the following factors when setting attorney's fees: (1) the time and effort required, considering the complexity of the issues and the skill required; (2) the customary fee in the area for similar services; (3) the results obtained and the amount of the controversy; (4) time limitations; and (5) the ability, experience, and reputation of the attorney performing the services. Smith, 109 N.M. at 522, 787 P.2d at 441. "We review the award of attorney's fees for abuse of discretion." Gonzales, 2000-NMSC-029, ¶ 35, 129 N.M. 586, 11 P.3d 550. {25} In this case, Plaintiff's attorney sought fees at a rate of $230 per hour for 450.96 hours plus applicable gross tax receipts, which resulted in a requested total of $110,657.13. In support of his requested hourly rate, he submitted affidavits from other attorneys who had been awarded similar rates in previous cases. The trial court judge did not cut the number of hours Plaintiff's attorney claimed and actually added five hours to the total for the attorney's preparation in connection with Plaintiff's motions for fees, costs, and interest. The judge then determined that in his experience $200 per hour was "the appropriate and reasonable hourly rate." This ultimately resulted in an award for attorney's fees of $97,290.47, which was approximately 34% of the total judgment rendered by the jury and was actually greater than the judgment following remittitur. We cannot conclude under the facts of this *579 case that the trial court abused its discretion in its award of statutory attorney's fees. See Lucero v. Aladdin Beauty Colleges, 117 N.M. 269, 271-72, 871 P.2d 365, 367-68 (1994). We affirm the trial court on this issue. III {26} Regarding the issues raised by Defendant's appeal, we hold that the trial court did not err in its instructions to the jury and that there was substantial evidence to support the jury's verdict on liability. As for the issues raised by Plaintiff's cross-appeal, we hold that the trial court did not err by granting remittitur, that Plaintiff was not entitled to post-judgment interest, and that the trial court did not abuse its discretion in setting Plaintiff's attorney's fees. We therefore affirm the trial court on all issues raised in this appeal and cross-appeal. {27} IT IS SO ORDERED. WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, PATRICIO M. SERNA, RICHARD C. BOSSON, and EDWARD L. CHAVEZ, Justices.	01-03-2023	11-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343296/	233 S.E.2d 88 (1977) 32 N.C. App. 499 FIRST UNION NATIONAL BANK of North Carolina, Executor under the Will of Cecil Paul Moss and First Union National Bank of North Carolina, Executor under the Will of Helen R. Moss v. David R. MOSS et al. No. 7628SC686. Court of Appeals of North Carolina. March 16, 1977. 91 Redmond, Stevens, Loftin & Currie, P. A., by John W. Mason and John S. Stevens, Asheville, for plaintiff appellees. Adams, Hendon & Carson, P. A., by Geo. Ward Hendon and George W. Saenger, Asheville, for defendant appellants, David R. Moss and Carolyn R. Cummings. Shuford, Frue, Sluder & Best by Gary A. Sluder and Ronald D. Brondyke, Asheville, for defendant appellant, The Presbyterian Children's Home of Black Mountain, North Carolina, Inc. Van Winkle, Buck, Wall, Starnes, Hyde & Davis, P. A., by Barry B. Kempson, Asheville, for defendant appellees, The Union Theological Seminary in Virginia and Board of Annuities and Relief of the Presbyterian Church in the United States. CLARK, Judge. This appeal raises the following issue: Did Helen R. Moss in her will, by devising the remainder of her estate "including any property or estate over which I have or may have any power of appointment", effectively execute the power of appointment given to her by her husband, Cecil Paul Moss, in his will, which required that she "appoint and direct in an effective will or codicil specifically referring to the power of appointment"? The cardinal rule in interpreting and construing a will, followed in countless North Carolina cases since Blount v. Johnston, 5 N.C. 36 (1804), is that the intention of the maker be ascertained if possible. The intention which controls is that which is manifest, expressly or impliedly, from the language of the will. Kale v. Forrest, 278 N.C. 1, 178 S.E.2d 622 (1971); In re Will of Cobb, 271 N.C. 307, 156 S.E.2d 285 (1967); Weston v. Hasty, 264 N.C. 432, 142 S.E.2d 92 23 (1965); Dearman v. Bruns, 11 N.C.App. 564, 181 S.E.2d 809 (1971); 95 C.J.S. Wills § 586 (1957); 80 Am.Jur.2d Wills § 1143 (1975). Where the intention is clearly and consistently expressed there is no need for judicial interpretation, and the court must first examine the will and, if possible, ascertain its meaning without reference to rules or canons of construction. Trust Co. v. Whitfield, 238 N.C. 69, 76 S.E.2d 334 (1953). Only where there is ambiguity or uncertainty is it proper for the court to take into consideration the established rules or canons for the construction of wills. Rhoads v. Hughes, 239 N.C. 534, 80 S.E.2d 259 (1954); Cannon v. Cannon, 225 N.C. 611, 36 S.E.2d 17 (1945); Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662 (1940). A will which admits of two constructions is ambiguous, for ambiguous simply means capable of being understood in more senses than one. Moore v. Parrish, 38 Wash.2d 642, 228 P.2d 142 (1951). The will of the donor of a power of appointment and the will of the donee of the power must be construed together. In re Price's Will, 4 Misc. 2d 1023, 163 N.Y.S.2d 34 (1956); Republic Nat'l. Bank v. Frederick's, 274 S.W.2d 431 (Tex. Civ.App.1954), rev'd on other grounds 155 Tex. 79, 283 S.W.2d 39 (1955). Joint construction is particularly appropriate in the present case since the two wills were executed on the same day before the same witnesses, one of whom was an attorney, appoint the same executor and contain very substantially identical language except for the dispositive provisions. We are called upon to construe the term in the will of Cecil Paul Moss which provided that his wife could dispose of the principal of the marital trust by "specifically" referring to the power and the term in the will of Helen R. Moss which devised any property over which she may have "any power of appointment." The word "specifically" usually means explicitly or definitely. Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Straton v. Hodgkins, 109 W.Va. 536, 155 S.E. 902 (1930). It does not always mean that an item be individually named, and where it is clear that the intention of the drafter is to the contrary, such narrow meaning will not be assigned. Administrator, F. A. A. v. Robertson, 422 U.S. 255, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975); California v. Richardson, 351 F. Supp. 733 (D.C.Cal. 1972). The word "any" has a diversity of meanings, and its meaning in a particular case depends on the context or subject matter of the statute or document in which it is used. State ex rel. Womack v. Jones, 201 La. 637, 10 So. 2d 213 (1942). As used in a will, "any" may have one of several meanings according to the subject which it qualifies and should be construed in context with other words used in the bequest. In re Scheyer's Estate, 336 Mich. 645, 59 N.W.2d 33 (1953). We conclude that the terms "specifically" and "any" as used in this context are sufficiently ambiguous to allow an examination of the circumstances surrounding the execution of the wills in addition to the four corners of the instruments. Trust Co. v. Jones, 210 N.C. 339, 186 S.E. 335 (1936); Adler v. Bank, 4 N.C.App. 600, 167 S.E.2d 441 (1969). The language used in the two wills reveals that the primary concern of Mr. & Mrs. Moss was the security and comfort of the surviving spouse, and secondary concerns were tax savings and charitable contributions. The dispositive provisions of the will of Mr. Moss provided that the income from both the marital deduction and the residuary trust was to go to Mrs. Moss, and furthermore she was given the absolute and unfettered power to invade the principal of the marital deduction trust during her lifetime and the power to devise it to whomever she wished upon death. Appellants concede that she possessed a general power of appointment. Mr. Moss did not give his wife the minimum power over the marital share that he could have in order to obtain maximum tax benefits. Rather he gave her broad powers over disposition, limited only to the requirement of a specific reference in her will, which powers indicate confidence and trust in her judgment and ability to manage her property. The fact that even if the power were exercised, Mr. Moss elsewhere in his will made generous provision for his children, the other natural objects 93 of his bounty, lends support to the conclusion that he had no intention to restrict his wife unduly in the disposition of the property subject to the power of appointment. Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E.2d 246 (1956); 7 Strong, N.C. Index, Wills § 78 (2d Ed. 1968). The language in the will of Helen R. Moss also exhibits concern for the security of her spouse, for charitable institutions, and for minimizing the tax burden upon her estate. If she predeceased her husband, all of her property was to go to him. The single most significant feature of her will which leads to the conclusion that she intended to exercise the power of appointment created in her husband's will is the distinction that exists between the dispositive provisions if she predeceased him and those if he predeceased her. Item Three provided that if she predeceased her husband, he was to have "all of my property and estate of every kind and wheresoever situate of which I die seized and possessed." Item Five provided that if he predeceased her, she was disposing of "all the rest, residue and remainder of my property and estate, whether real, personal, or mixed, of every nature and wherever situate, including any property or estate over which I have or may have any power of appointment." (Emphasis added.) The fact that Mrs. Moss made reference to property under a power only in the event that her husband died first is evidence that she was concerned only with the power created in his will, and was thereby making special reference to it. Were this boiler-plate language only, it would be included in Item Three as well. The omission in Item Three and inclusion in Item Five is evidence of the specific nature of the language in this context. The language indicates an awareness by Mrs. Moss that only if her husband predeceased her would she possess two classes of property, (1) property under appointment and (2) her personal estate, and it demonstrates an intention to make a distinction between these two classes of property. Circumstances attendant the execution of the wills resolve any ambiguity and compel the conclusion that the power was exercised. Both wills were executed on the same day, were witnessed by the same people, contain substantially identical language except for the dispositive provisions, and reveal similar concerns. It is reasonable to infer that the same person drafted the two wills to reflect the common interests and concerns of Mr. & Mrs. Moss, and to infer that each spouse was aware of the contents of the other's will. The fact that a donee of a power was aware of the existence of a power of appointment at the time of the execution of the donee's will is a circumstance which supports the conclusion that ambiguous language in donee's will reflects an intention to exercise the power. 62 Am.Jur.2d, Powers of Appointment § 49 (1972). The fact that the provision will have no meaning unless it operates to exercise the power is also a circumstance which supports the conclusion that the donee thereby intended to exercise the power. 62 Am.Jur., supra, § 51. The size of the two classes of property under the control of Mrs. Moss supports the conclusion that it was the intention of Mr. Moss, the donor, to require only that his wife, the donee, distinguish between the two classes in her will in order that there be no inadvertent exercise of the power. Considering the circumstances surrounding the execution of both wills and language of both wills, we conclude that it was the intent of Mr. Moss, in requiring Mrs. Moss to effectively execute the power of appointment by "specifically" referring to the power, to require that his wife in her will show her intent to devise both classes of property under her control; and we further conclude that it was the intent of Mrs. Moss to exercise the power of appointment by devising the remainder of her estate "including any property or estate over which I have or may have any power of appointment". The intent of Mr. Moss was to prevent Mrs. Moss from inadvertently exercising the power of appointment. Mrs. Moss made a distinction between her own property and the appointive property and intentionally exercised the power. See 94 Kirkman v. Wadsworth, 137 N.C. 453, 49 S.E. 962 (1905). Plaintiffs call to their aid two statutes, G.S. 31-4 and G.S. 31-43. G.S. 31-4 provides in substance and pertinent part that the failure to satisfy formal requirements imposed by the donor does not make the exercise of the power of appointment ineffective if the appointment is executed in the manner prescribed by law. G.S. 31-43 provides in substance that a general devise shall be construed to include any property which the testator may have power to appoint in any manner he may think proper unless a contrary intention of the donee testator is shown. Trust Co. v. Hunt, 267 N.C. 173, 148 S.E.2d 41 (1966); Walsh v. Friedman, 219 N.C. 151, 13 S.E.2d 250 (1941); Johnston v. Knight, 117 N.C. 122, 23 S.E. 92 (1895). Appellants deny the applicability of these statutes, and cite in support several cases, which we have carefully examined. We do not deem it necessary to rule upon the applicability of these two statutes and cases cited in view of our conclusion that it was the intent of Mr. Moss to require only that Mrs. Moss avoid an inadvertent disposition of the appointed property by referring to the power, and that she complied with this requirement by referring to "any property. . . over which I have or may have any power of appointment." The defendants David R. Moss and Carolyn R. Cummings also except to the finding of the trial court that The Board of Annuities and Relief and The Union Theological Seminary are qualifying charities under Section 2055 of the Internal Revenue Code of 1954, as amended. In making these findings the trial court took judicial notice of certain sections of the Internal Revenue Code. Judicial notice may be taken of the public laws of the United States and of important administrative regulations having the force of law. 1 Stansbury, N.C. Evidence § 12 (Brandis Rev.1973); 29 Am. Jur.2d Evidence, § 39 (1967). This assignment of error is overruled. The judgment of the trial court is Affirmed. VAUGHN and HEDRICK, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343349/	187 S.E.2d 462 (1972) 14 N.C. App. 97 STATE of North Carolina v. George PARKS. No. 7223SC188. Court of Appeals of North Carolina. March 29, 1972. Certiorari Denied May 2, 1972. 463 Atty. Gen. Robert Morgan by Associate Atty. Gen. Charles A. Lloyd for the State. Franklin Smith, Elkin, for defendant appellant. Certiorari Denied by Supreme Court May 2, 1972. BRITT, Judge. Defendant assigns as error the denial of his motion to suppress the State's evidence consisting of two guns found in an automobile near the scene of the shooting, contending an illegal "search and seizure." We find no merit in this contention. Pertinent testimony of Deputy Sheriff McCann with respect to this assignment of error is summarized thusly: He was on duty on the night of 12 June 1971 and around midnight received a call over the radio relative to a shooting. He immediately went to Gentry's store and on arrival saw that Tommy Lee Triplett had been shot. The victim was lying on the ground; defendant was lying on the ground beside the victim with Tommy Redding holding defendant down. They were near the driver's side of a 1960 Ford that defendant had been driving. While the victim and defendant were being placed in an ambulance, Officer McCann opened the car door and saw two guns lying on the driver's seat under the steering wheel; "the guns were laying there in visible sight." One of the guns was a .32 revolver and the other a .38 revolver. The .32 had been recently fired and contained five unspent cartridges with an empty round in the chamber. A pathologist testified that the victim died as the result of bullet wounds to vital internal organs. Neither the Fourth Amendment nor G.S. § 15-27 is applicable where no search is made; the law does not prohibit a seizure without a warrant by an officer in the discharge of his official duties where the article seized is in plain view. State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968). The limits of reasonableness which are placed upon searches are equally applicable to seizures, and whether a search or seizure is reasonable is to be determined on the facts of the individual case. State v. Howard, supra. We think the reasoning and authorities set forth in State v. Howard, supra, and in State v. 464 Fry, 13 N.C.App. 39, 185 S.E.2d 256 (1971) are applicable to this case and no useful purpose would be served by a repetition of the reasoning and authorities set forth in those opinions. Defendant assigns as error the denial of his motion for nonsuit interposed at the close of all the evidence. The record reveals that there was no exception taken at that time and the exception under this assignment of error in defendant's brief is that taken at the denial of his motion at the close of the State's evidence. Where defendant introduces evidence, the motion for nonsuit at the close of the State's evidence is waived, and a renewed motion must be made at the close of all the evidence. State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967). In such instance the assignment of error should be based on the second exception. State v. Cotten, 2 N.C.App. 305, 163 S.E.2d 100 (1968). In any criminal case upon motion for nonsuit all the evidence admitted must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference to be drawn therefrom, and so much of the defendant's evidence as is favorable to the State must also be considered. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). A review of the evidence in this case, taking the defendant's and State's evidence together, leaves no question but that the evidence was sufficient to withstand a nonsuit motion even if it had been properly presented on appeal. Defendant's contention that the court erred in denying his motion to dismiss the charge of second degree murder and submit the case to the jury only on the issue of manslaughter is untenable since if error was committed, it was not prejudicial to defendant inasmuch as the jury answered favorably to defendant on this point by returning a verdict of manslaughter. State v. Brannon, 234 N.C. 474, 67 S.E.2d 633 (1951). Defendant presents four assignments of error concerning the argument of the solicitor to the jury. The control of the argument of the solicitor and counsel must be left largely to the discretion of the trial court, and an impropriety must be sufficiently grave to be prejudicial in order to entitle defendant to a new trial. State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960). We find nothing in the solicitor's argument in this case that has been held to be condemned conduct sufficient to be prejudicial. See 2 Strong, N.C. Index 2d, Criminal Law, § 102, p. 64 et seq. We have reviewed the other assignments of error brought forward and argued in defendant's brief but find them without merit. They are all overruled. No Error. CAMPBELL and GRAHAM, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343374/	228 Ga. 760 (1972) 187 S.E.2d 868 HOWARD v. HOWARD. 26942. Supreme Court of Georgia. Argued January 11, 1972. Decided March 9, 1972. Stanley H. Nylen, for appellant. Haas, Holland, Freeman, Levison & Gibert, Richard N. Hubert, Andrew C. Hall, for appellee. HAWES, Justice. This is a divorce case wherein the husband sued his wife for divorce on the grounds of cruel treatment. The defendant-wife filed a cross complaint seeking a divorce from the plaintiff on the ground of cruel treatment and also seeking alimony and attorney's fees. Upon the trial of the case, the jury returned a verdict granting a divorce to the defendant and awarded her alimony, child support and attorney's fees. The husband appealed, enumerating four grounds of alleged error. 1. Appellant contends that the court erred in excluding evidence which he offered to the effect that subsequent to the marriage between the parties he was required to pay 761 out a substantial sum of money in order to prevent the prosecution of the defendant wife on a charge of embezzlement which allegedly occurred prior to their marriage. His contention that this evidence was admissible for the jury's consideration on the question of alimony is without merit. "In all cases where alimony is awarded to the wife, her separate estate and earning capacity, as well as any fixed liabilities of the husband for the support of minor children, shall be taken into consideration in fixing the amount." Code Ann. § 30-209. Appellant argues, in effect, that the jury would be authorized to infer from such evidence, if admitted, that the wife's employer, having been repaid by the husband for the money allegedly embezzled by her, she, presumably, was enabled thereby to retain the fruits of the embezzlement, and that her separate estate was thus enriched to that extent. From the record as transmitted to this court, it is apparent that the payment by the husband was made shortly after the parties were married. They remained married about two and one-half years before the divorce proceeding was filed. Under these circumstances, it will be presumed that, by his continued cohabitation with his wife after making such payment, he intended the payment to constitute a gift to her which she would be entitled to retain as a part of her separate estate. Powell v. Powell, 196 Ga. 694, 700 (27 SE2d 393). One of the matters which the jury is authorized by Code Ann. § 30-209 to consider in fixing the amount of alimony to be awarded is the wife's separate estate. This has reference to its size and amount at the time of the dissolution of the marriage. The source of that estate is not relevant to any issue which the jury must decide. Appellant makes no contention that he was prohibited from showing by proper and competent evidence the present condition of the wife's estate so that the jury could take this factor into consideration in rendering the verdict for permanent alimony. Neither does he contend that the verdict was excessive. Under these circumstances, the first ground of enumerated 762 error shows no cause for a reversal. 2. The second and third grounds of enumerated error complain of the refusal of the trial judge, one of the Judges of the Atlanta Judicial Circuit, to allow the plaintiff to put one of the other Judges of the Atlanta Judicial Circuit and a Deputy Clerk of the Fulton Superior Court on the stand so that they might testify as to allegedly contradictory testimony given by the defendant wife on a previous temporary alimony hearing which had been held before the judge propounded as a witness. Assuming, but not deciding, that these proffered witnesses were competent to testify on the trial of the case for the purpose of impeaching the defendant, it was not harmful error to refuse to permit them to testify in this case because the record shows that the defendant wife whose testimony the plaintiff sought thus to impeach admitted when she was on cross examination by the counsel for the plaintiff making the allegedly contradictory statements and admitted their falsity. Pethel v. Waters, 220 Ga. 543, 552 (140 SE2d 252). 3. After the judge presiding in the trial of this case had ruled that the judge who presided on the former hearing for temporary alimony could not testify as a witness, he undertook to explain to the jury the reasons for his ruling in that regard. Counsel for the appellant made a motion for a mistrial on account of the remarks of the trial judge in explaining his ruling which motion was overruled, and he complains thereof in the fourth ground of enumerated error. The statement of the court which elicited the motion for a mistrial was as follows: "Gentlemen, during the recess, the court considered, and you heard counsel for the plaintiff call someone here as a witness. It happened to be one of the judges of this court. It developed the testimony that would have been elicited would have been that by transcript of a judicial hearing. The proposed witness was a judge of this court and that evidence if it was available by transcription could have been brought to the court and for that reason the court *763 on its own motion did not feel it appropriate that his testimony be offered and as I think it would have been an unlawful use of the testimony and, therefore, has excused this witness." There was nothing in this statement which was in any way harmful to the plaintiff, and the trial court did not err in overruling the motion for a mistrial. Judgment affirmed. All the Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1067573/	482 S.E.2d 66 (1997) 24 Va. App. 272 Ralph L. GORDON, State Health Commissioner, Department of Health v. Dr. Harold H. ALLEN, Jr., d/b/a Physicians Surgical Alliance, P.C. Record No. 1394-96-4. Court of Appeals of Virginia, Alexandria. March 4, 1997. Carol S. Nance, Assistant Attorney General (James S. Gilmore, III, Attorney General; William H. Hurd, Deputy Attorney General; Jane D. Hickey, Senior Assistant Attorney General, on briefs), for appellant. Wyatt B. Durrette, Jr., Richmond (John T. Brennan, Jr.; Thomas A. Guidoboni, Washington, DC; Bronson F. Byrd, Fairfax; Durrette, Irvin & Bradshaw; Michaels, Wishner & Bonner, Washington, DC, on brief), for appellee. Virginia Hospital & Healthcare Association (Julia Krebs-Markrich, Falls Church; H. Lane Kneedler; D. Patrick Lacy; Hazel & Thomas, Richmond, on brief), Amicus Curiae for appellant. Present: MOON, C.J., and WILLIS and FITZPATRICK, JJ. WILLIS, Judge. The State Health Commissioner appeals from a final judgment of the trial court reversing the commissioner's denial of Dr. Harold H. Allen, Jr.'s request for a determination of nonreviewability under the certificate of public need (COPN) statute, Code § 32.1-102.1 et seq.,[1] and holding that statute to be unconstitutionally vague. For the reasons set forth below, we reverse the judgment of the trial court. I. On January 28, 1994, Dr. Allen, d/b/a Physicians Surgical Alliance, notified the commissioner that he intended to establish an 67 "outpatient surgical hospital" in Sterling, Virginia. He requested a determination by the commissioner that the COPN statute did not apply to "outpatient surgical hospitals" and that COPN review and approval of his project was unnecessary. He contended that the COPN statute defined a universe of "medical care facilities," and strictly limited to that universe the facilities requiring COPN review. See Code § 32.1-102.1. He contended that although licensure law recognizes an "outpatient surgical hospital" as a type of medical care facility, Code § 32.1-123 et seq., "outpatient surgical hospitals" are not included specifically in the list of medical facilities requiring COPN review under Code § 32.1-102.1. He contended that, therefore, the COPN statute did not apply to his proposed facility. By letter dated February 16, 1994, the Department of Health (Department) rejected Dr. Allen's argument. The Department concluded that Dr. Allen's proposed medical care facility was a specialized center developed for the provision of outpatient or ambulatory surgery. It recommended that COPN review and approval of his facility be required for certification.[2] In issuing its recommendation, the Department stated that: This categorization of a type of medical care facility in the COPN law is neither subtle nor ambiguous. A plain reading of this term does not allow for any reasonable suggestion that facilities such as those developed by Dr. Allen would not fall within its ambit simply because they are specialized centers for outpatient or ambulatory surgery that require licensure in Virginia as outpatient surgical hospitals. As you know, the authors of Virginia's COPN law did not establish the list of medical care facilities subject to COPN review as a subset of the medical care facilities subject to licensure in Virginia. There are categories of "medical care facility" subject to COPN review which are not licensed by the Department of Health or any other state agency as medical care facilities. Likewise, the Department requires licensure of certain types of facilities and services that are not regulated under the COPN law. Therefore the fact that you have been able to detect some congruence in the nomenclature used to describe medical care facilities subject to COPN review and medical care facilities subject to licensure in Virginia is irrelevant. Upon Dr. Allen's request for reconsideration of the Department's recommendation, the commission conducted an informal fact-finding conference. Dr. Allen argued that the phrase "[s]pecialized centers or clinics or that portion of a physician's office developed for the provision of outpatient or ambulatory surgery," as applied to him, was unconstitutionally vague. On November 17, 1994, the commissioner rejected Dr. Allen's argument and held that he was required to undergo COPN review to obtain approval of his proposed outpatient surgical hospital. Pursuant to the provisions of the Virginia Administrative Process Act (VAPA), Code §§ 9-6.14:15 to 9-6.14:21, Dr. Allen appealed the commissioner's case decision to the trial court, which, after hearing argument on August 31, 1995, issued a letter opinion reversing the commissioner's decision and ruling that the COPN statute and regulations were 68 unconstitutionally vague. The trial court denied the commissioner's motion for reconsideration. II. On August 8, 1996, we made a preliminary determination that the transcript of the August 31, 1995 hearing had not been filed timely. See Rule 5A:8. We ordered the commissioner to show cause why this appeal should not be dismissed. We directed that the parties' briefs contain argument concerning: (1) whether the transcript of the August 31, 1995 hearing was properly made a part of the record on appeal; and (2) if not, whether that transcript is indispensable to a determination of the issues. We conclude that the transcript was not properly made a part of the record on appeal. However, we further find that the transcript is not indispensable to a determination of the issues. See Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 401-02 (1986). "Under the VAPA, the circuit court's role in an appeal from an agency decision is equivalent to an appellate court's role in an appeal from a trial court. In this sense, the General Assembly has provided that a circuit court acts as an appellate tribunal." School Board v. Nicely, 12 Va.App. 1051, 1062, 408 S.E.2d 545, 551 (1991). The July 7, 1994 informal fact-finding conference and the Department's accumulation of the agency record performed a trial court's traditional fact-finding function. See Code §§ 9-6.14:16, 9-6.14:17. The agency record was filed timely in the trial court. The August 31, 1995 hearing before the trial court was an appellate proceeding. The trial court's function was limited to considering the parties' legal arguments based upon the agency record. While our consideration of the issues might have been aided by a review of the August 31, 1995 transcript, the written record, encompassing the parties' pre-hearing briefs, the trial court's letter opinion, and the agency record, along with transcripts of the Department's informal fact-finding conference and argument before the trial court to reconsider its decision, provides a sufficient record for our consideration of this appeal. III. In his petition for appeal to the trial court, Dr. Allen asserted that the commissioner's decision was illegal because: [I]t is based upon a portion of the Certificate of Public Need statute which itself is unconstitutionally vague under both the United States and Virginia Constitutions. Specifically, the determination of the Acting Commissioner that Petitioner's project required prior Certificate of Public Need approval was based on his conclusion that the outpatient surgical hospital Petitioner proposed to establish comprised a "specialized center or clinic", which term or terms are undefined in statute or regulation. In argument before the trial court, Dr. Allen contended that an amendment to the definition of "medical care facility" limited COPN review to entities that are licensed or required to be licensed. He argued that the COPN regulations were inconsistent with this statutory amendment, and that, therefore, the COPN statute and regulations were unconstitutionally vague. The commissioner argues that this contention was not embraced within Dr. Allen's petition for review in the trial court and that the trial court erred in considering it. For purposes of this appeal, we give Dr. Allen's petition a broad reading and, for purposes of decision, we accept without deciding that his petition was broad enough to encompass the questioned argument. IV. The trial court held: The second issue considered is the relationship of the COPN statutory definition of "medical care facility", [] and the State Medical Facilities Plan (SMFP). Petitioner says that the new statutory language made licensure a prerequisite to the necessity for COPN review.... The Court finds that the SMFP, read in conjunction with COPN statute, ignores significant statutory changes. The Court must follow the statute when such a conflict 69 exists. The statutory language changed from "whether or not [licensed or] required to be licensed" to "whether licensed or required to be licensed." The effect of the revision is a substantive one that must be reflected in the regulations. The effect is that the question "What facility needs licensure?", is difficult to clearly answer. This equivocal result means the statute and regulations are fatally vague, facially and in application.[3] If we accept the trial court's reading of Code § 32.1-102.1, that statute provides a two-step predicate for the requirement of COPN review: (1) the proposed facility must require licensure, and (2) the proposed facility must fall within one of the classifications set forth in Code § 32.1-102.1. Dr. Allen has never disputed that his proposed facility requires licensure. Therefore, "what facility needs licensure" is not an issue in this case. The commissioner determined that Dr. Allen's proposed facility would be a specialized center or clinic developed for the provision of out-patient or ambulatory surgery, thus bringing it within the scope of Code § 32.1-102.1 "medical care facility (9)." While this determination may leave room for argument, it does not pose an issue of classification that is unconstitutionally vague. The judgment of the trial court is reversed, and this case is remanded for review on the question whether the record developed before the commission supports the commissioner's determination. Reversed and remanded. NOTES [1] Following the circuit court's ruling, the General Assembly amended Code § 32.1-102.1, modifying the definition of a "medical care facility," and the provisions regarding the application of review to said facilities. 1996 Va. Acts ch. 1050. For purposes of this opinion, we refer to the statute as it was written in 1994. [2] Code § 32.1-102.1 provides in pertinent part that: "Medical care facility," as used in this title, means any institution, place, building or agency, whether licensed or required to be licensed... whether operated for profit or nonprofit and whether privately owned or privately operated or owned or operated by a local governmental unit, (i) by or in which health services are furnished, conducted, operated or offered for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition, whether medical or surgical, of two or more nonrelated mentally or physically sick or injured persons, or for the care of two or more nonrelated persons requiring or receiving medical, surgical or nursing attention or services as acute, chronic, convalescent, aged, physically disabled or crippled, or (ii) which is the recipient of reimbursements from third-party health insurance programs or prepaid medical service plans. For purposes of this article, only the following medical care facilities shall be subject to review: * * * * * 9. Specialized centers or clinics or that portion of a physician's office developed for the provision of outpatient or ambulatory surgery.... [3] The circuit court referred mistakenly to the State Medical Facilities Plan. See 32.1-102.3(A); 12 VAC §§ 5-230-10 to 5-350-60. The appropriate reference is to the Virginia Medical Care Facilities Certificate of Public Need Rules and Regulations (COPN regulations), which establish the required procedures for the administrative application of COPN review. Code § 32.1-102.2; 12 VAC §§ 5-220-10 to X-XXX-XXX.	01-03-2023	10-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343811/	122 Cal.App.2d 452 (1954) FRED WILLIAM CHAMBERS et al., Appellants, v. ROBERT DONALDSON, Respondent. Civ. No. 4744. California Court of Appeals. Fourth Dist. Jan. 6, 1954. Henry F. Rager for Appellants. Parker, Stanbury, Reese & McGee for Respondent. GRIFFIN, J. Plaintiffs, husband and wife, brought this action against Robert Donaldson et al., for their alleged negligence arising out of an intersection accident between two cars. Defendant Donaldson and his wife filed a cross-complaint alleging negligence of plaintiffs and prayed for damages. The controlling facts are undisputed. The accident happened on a clear, dry day at the intersection of Alder Street and Merrill Avenue in the rural area near Fontana. Donaldson was driving his De Soto automobile in a southerly direction on Alder Street accompanied by his wife. Chambers was driving his Ford in an easterly direction on Merrill Avenue, accompanied by his wife. Each street is 24 feet wide with smooth asphalt pavement. There is a 6-foot dirt shoulder on each side of the pavement on each street. It is conceded by all parties that the intersection is quite obstructed. Trees and shrubbery on the northwest corner of the intersection made it practically impossible for a southbound driver on Alder Street to see toward the west on Merrill Avenue until the driver's view cleared the shrubbery along the north edge of Merrill Avenue. The view of an eastbound driver on Merrill Avenue would be almost as badly obstructed. It is also conceded that a stop sign had at one time been lawfully installed at the northwest corner of the intersection facing southbound traffic on Alder Street, that it had been previously removed by some unknown person, and that Donaldson made no boulevard stop as he entered the intersection This stop sign was originally erected pursuant to a San Bernardino County ordinance which designated Merrill Avenue as a boulevard and required that southbound vehicles on Alder Street stop before crossing Merrill Avenue, and also required "such designated intersections to be clearly marked or signposted ..." Chambers was familiar with the intersection and knew there was supposed to be a stop sign at the north entrance to the intersection. Donaldson was not familiar with it and did not know that there was supposed to be a stop sign facing him as he approached and entered Merrill Avenue, and did not know that southbound traffic ordinarily was supposed to stop there. Donaldson said he could see that the corner was a "blind" or an obstructed intersection so he slowed his speed to approximately 454 10 miles an hour as he entered it. He also claimed he did not remember anything after his front wheels entered the intersection at about 10 miles an hour and after he had checked in each direction to make sure that no vehicle was within 75 feet of the intersection at that particular instant. Mrs. Donaldson said she raised her eyes and noticed that she was about in the center of Merrill Avenue and saw the Ford automobile bearing down on her from the west at a distance of 40 or 45 feet, traveling at a speed of 45 or 50 miles an hour, and that the left front side of the Ford struck the right side of the Donaldson De Soto, causing it to throw her from the car. Chambers testified that he was driving at approximately 30 miles an hour; that the first time he saw the Donaldson vehicle he was approximately 10 or 12 feet west of the intersection and at that time the Donaldson vehicle was approximately 20 to 25 feet north of the intersection traveling between 40 and 45 miles per hour; that the collision was a "head-on-broadside collision" in that the Ford automobile of plaintiffs was struck approximately in the center of its left-hand side by the front of the Donaldson vehicle. All of the parties suffered and sustained severe personal injuries as a result of the accident. Upon the foregoing facts the jury returned a verdict in favor of the defendant on the complaint of Mr. and Mrs. Chambers, and in favor of the cross-defendants on the cross-complaint of Mr. and Mrs. Donaldson. Counsel for appellants on this appeal states that there is but one main question involved, i. e., did the court err in giving certain instructions? The first one complained of reads: "If the boulevard stop sign at the northwest corner was not standing erect and in place at the time Mr. Donaldson approached and entered the intersection, Merrill Avenue was not at that time a through highway at Alder Street." "A 'through highway' is a highway, or portion thereof at the entrance to which vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same, and when stop signs are erected as provided in this code." (Citing Veh. Code, 82.5.) It is plaintiffs' argument that since the ordinance required that vehicles stop before crossing Merrill Avenue at other streets and since stop signs were actually erected therefor, the 455 temporary removal of this particular stop sign did not affect the character of the highway, citing out- of-state cases such as Titus v. Braidfoot, 226 Ala. 21 [145 So. 423]; Connors v. Dobbs, 77 Ohio App. 247 [66 N.E.2d 546]; and Jones v. McCullough, 148 Kan. 561 [83 P.2d 669]. The ordinance classified Merrill Avenue as a "boulevard" and not a "through highway," and required vehicles to stop before entering or crossing it, and also required it "to be clearly marked or signposted to give notice of such fact ...." [1] Regardless of some decisions in other states indicating a contrary holding, the courts of this state have disposed of that question in Casselman v. Hartford Acc. & Indem. Co., 36 Cal.App.2d 700 [98 P.2d 539] [hearing denied by Supreme Court], where it was said: "It is urged by appellant that, though no stop sign was erected at the intersection, the duty of stopping was imposed upon respondent as a matter of law, very much the same as the 'stop, look and listen' rule is applied to one driving a vehicle across a railroad track. This is a novel contention, and apparently has some support from other jurisdictions. The rule has never been applied in California in respect to a highway intersection. The premise of the appellant is based upon the assumption that the highway on which Maguire was traveling, and on which the accident occurred, was a 'through highway.' As we have pointed out, this was not the fact. 'Through highways' are not designated by law in this state as continuous in character. They are only such when running past an intersection at which stop signs have been erected. Where there is no sign, there is no such highway." [2a] Complaint is then made about an instruction in the language of section 550(b) of the Vehicle Code in reference to the right of way of vehicles approaching or entering intersections, and stating that if the jury found that either driver failed to yield the right of way to the other in violation of that section, such violation was negligence in and of itself. This was followed by another instruction in the language of section 510 of the Vehicle Code in reference to the basic speed law. The court gave the following instruction at plaintiffs' request: "When a driver does not have a clear and unobstructed view of an intersection and all traffic upon all of the highways entering such intersection for a distance of 100 feet along all such highways during the last 100 feet of 456 his approach to such intersection, then the statutory speed across such intersection is fifteen miles per hour." The only instruction on this subject requested by the defendant reads as follows: "The evidence establishes that this intersection was an obstructed intersection within the meaning of the Vehicle Code. At obstructed intersections of this type where boulevard stop signs are not in place the prima facie or permissible speed limit for vehicles traveling east on Merrill and entering and crossing the intersection of the two streets is 15 miles per hour." "While a violation of the foregoing speed limit does not constitute negligence as a matter of law, the above speed limit should be considered by you in your deliberations on the issue of whether Mr. Chambers drove his vehicle at an unlawful or negligent speed at the time and place in question." These instructions were followed by a general instruction in reference to proximate cause. As we view plaintiffs' objections to the instructions, it is his claim that the speed law applicable to Chambers at that time was not 15 miles per hour but due to the fact that he knew he was traveling on a through highway and was authorized to travel thereon at 55 miles per hour under those conditions, he was not bound by the 15-mile speed limit provision. In support thereof he cites Shivers v. Van Loben Sels, 109 Cal.App.2d 286 [240 P.2d 635]; and Howard v. Alta Chevrolet Co., 111 Cal.App.2d 38 [243 P.2d 804]. In the Shivers case the stop sign was standing at the intersection. Apparently it has no factual application to the instant case. In the Howard case the stop sign was down but the question remained as to whether or not the passenger in the car had knowledge of this fact because he traveled across this same intersection the day before and may have gained knowledge of its absence at that time. [3] In Casselman v. Hartford Acc. & Indem. Co., supra, at page 708, the court said: "Where there is no sign, there is no such highway. In any event, it is the rule in California that one approaching an intersection of this character is governed by the provisions of the Vehicle Code, or, in the absence of any specific provision covering the situation, by the ordinary law of negligence. This case, as we have pointed out, is governed by a specific provision of such code. This appellant, in common with many users of the highway, seems to have the impression that every motorist who attempts to enter a main highway from a side road, does so at his peril. 457 This misconception of the law is a prolific source of accidents. As we have shown, such motorist has very definite rights granted to him by the provisions of the Vehicle Code, and those users of the main highway who ignore such rights must be prepared to pay the penalty." [2b] It is apparent, under this holding and the admitted facts here presented, that the instructions given were proper. Judgment affirmed. Barnard, P. J., and Mussell, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1343817/	122 Cal.App.2d 216 (1953) Estate of LOUISE R. SMITH, Deceased. ROWENA HEUSNER, Appellant, v. CALVIN E. HANSELL, Respondent. Civ. No. 15559. California Court of Appeals. First Dist., Div. Two. Dec. 22, 1953. Wilke & Fleury for Appellant. John M. Hoffmann, Howard C. Erickson, Robert V. Winkler and Hoffmann & Erickson for Respondent. NOURSE, P. J. On a hearing upon petition for settlement of the final account of the administratrix, Rowena Heusner, one of the heirs of the decedent, filed her objections to the allowance of a creditor's claim on the ground that the 217 claim had not been filed within six months after publication of notice to creditors. The claim had been approved by the administratrix and by the probate court. On the hearing the court overruled all objections and ordered the claim paid in full. In her appeal from this order the appellant raises three grounds for a reversal: (1) That the claim was barred by the statute of limitations; (2) that the defense of estoppel is not available to respondent; (3) that the creditor was an incompetent witness under section 1880, subdivision 3, of the Code of Civil Procedure. [1] (1) Section 707 of the Probate Code provides: "All claims arising upon contract ... must be filed or presented within the time limited in the notice ... and any claim not so filed or presented is barred forever." This is clear and precise language which calls for no qualification or judicial interpretation. The facts here are undisputed. The notice to creditors required that claims be presented not later than January 14, 1951. The claim in dispute was not filed until July 19, 1951--more than six months too late. Section 708 of the Probate Code provides that "[n]o claim which is barred by the statute of limitations shall be allowed or approved by the executor or administrator, or by the judge." The allowance and approval of the claim are both indefensible. In the relatively early case of Morrow v. Barker, 119 Cal. 65, at page 66 [51 P. 12], the Supreme Court said: "A court is not authorized to make an exception to relieve from hardship or to aid apparent equities. (Tynan v. Walker, 35 Cal. 634, 640 [95 Am.Dec. 152]; Sichel v. De Carillo, 42 Cal. 493, 499.) As was said in Estate of Hildebrandt, 92 Cal. 433, 436 [28 P. 486]: 'The statute is imperative and applies to all claims arising upon contracts. If the effect of it is to cause a loss or work a wrong in some particular case, that is a matter for the consideration of the legislature and not the courts.' " In 1930, speaking for this court, Justice Sturtevant (who always believed that the Legislature and not the courts should be permitted to enact the law) said, in his usual terse and convincing manner in People v. Osgood, 104 Cal.App. 133 at page 137 [285 P. 753]: "There is no statute which gives to the superior court sitting in probate the jurisdiction to entertain in behalf of this plaintiff or in behalf of any other litigant such a claim at such a time. Our statute commands that claims for debts '... due, not due, or contingent ...' be 218 presented. (Code Civ. Proc., sec. 1490 et seq.) If the administrator complies with the statute and gives due notice, claims not duly presented are barred. The bar cannot be waived. (Harp v. Calahan, 46 Cal. 222, 232.) If, nevertheless, a court allows the claim, its action is reversible error. (Morrow v. Barker, 119 Cal. 65, 66 [51 P. 12].) No action may be maintained. (Code Civ. Proc., sec. 1500.) Hence no court would have jurisdiction. (Modoc v. Superior Court, 128 Cal. 255 [60 P. 848].)" Both of these cases follow the law as written and, as was said in the Morrow case, it is not for the courts "to make an exception to relieve from hardship." The rule was followed by this court in the recent case of Estate of Erwin, 117 Cal.App.2d 203 [255 P.2d 97]. That case is clearly analogous. There, as here, the administratrix sought to evade the plain terms of the code by approving a claim barred by the code. The trial court, however, insisted upon following the code section and held the claim barred. On appeal this court said: "Section 707 Probate Code states in unequivocal terms that 'any claim not so filed or presented is barred forever.' It is appellant's position that despite this clear language the administratrix may waive the failure to present the claim in the time and manner provided by the Probate Code and the probate judge must concur in her waiver." "This argument overlooks the facts that the administratrix occupies a fiduciary duty to the heirs to protect their legal rights in the estate (Larrabee v. Tracy, 21 Cal.2d 645, 650 [134 P.2d 265]; 11A Cal.Jur., Executors and Administrators, 23, p. 75) and that the probate court is the guardian of the estates of deceased persons (County of Los Angeles v. Morrison, 15 Cal.2d 368, 371 [101 P.2d 470, 129 A.L.R. 443]; 11 Cal.Jur., Executors and Administrators, 6, p. 214)." "It is the plain duty of both the administratrix and the probate judge to protect the estate against the collection of a debt which the statutory law expressly declares to be 'barred forever.' " Another similarity between the two cases should be noted. In the Erwin case the administratrix succeeded to one-eighth of the estate. The remaining seven-eighths went to heirs residing in western Germany. Here the administratrix was entitled to one-eighteenth of the estate. The remaining seventeen-eighteenths went to other heirs who would suffer the loss by her failure to properly represent them. That is not a commendable exercise of the trusteeship. 219 [2] (2) Respondent assumes to answer this difficulty by arguing that the administratrix is estopped from raising the statute. Assuming the propriety of the defense of estoppel the facts here fail to prove it. The time for filing claims expired on January 14, 1951. The claim was filed six months after this expiration date. In an attempt to prove an estoppel respondent and the administratrix testified to conversations between them. The claimant's testimony fixes all of these conversations as having occurred after the time for filing claims had expired. The full extent of these conversations was that the administratrix would endeavor to overlook the statute and approve an admittedly illegal claim. The finding that there was an estoppel is not supported by evidence of any type. The doctrine of estoppel is clearly defined in section 1962, subdivision 3 of the Code of Civil Procedure, reading as follows: "Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it." Because of the adverse finding, it is proper to cite the evidence somewhat at length. Bearing in mind that the notice to creditors was completed August 11, 1950, that the last day to file claims was January 14, 1951, and that the claim herein was filed on July 19, 1951, it becomes important to look at the evidence to see what "declaration, act, or omission" of the administratrix led the claimant to "believe a particular thing true, and to act upon such belief." Manifestly her only act upon which a plea of estoppel could be based would be one that led him to believe that he did not need to file his claim within the statutory period. All the evidence on this subject is found in the testimony of the claimant and of the administratrix. The claimant testified: "Q. You stated that you had conversations with Wilma Harris? A. Yes. Q. Have you had one conversation or several? A. Several. Q. Do you recall when the first conversation took place? A. I can't recall the exact time, but it shortly after the estate was settled or passed on by the court up in Sacramento. Q. When you speak of the matter in Sacramento, that was a contest up there? A. Yes." "Mr. White: I will stipulate that the judgment was entered on March 20, 1951. 220" "Mr. Winkler: Q. With that date in mind, can you tell the Court now about when this first conversation was with Mrs. Harris? A. I can't recall exactly; I would say probably some time--the case was up there January 9--I would say around May or June or July--I can't remember exactly .... Q. Did you ever have any other conversations with her--with Mrs. Harris? A. Later she called me on phone and told me__________ Q. When did she call you? A. Up at the home--I can't recall the date. Q. Shortly after the conversation you have just related? A. Yes, a month or so. Q. Just after you had come back from Sacramento? A. Quite a long time after--after she told me to just wait, that I would be taken care of and the money would be paid when the estate was settled." "Q. With reference to that time when you were in Sacramento, how long was it after that time when you had this conversation with Mrs. Harris? A. As near as I can tell--I can't tell whether it was two months or three months--quite some time, a couple or three months, anyway, I would think." (N.B. It was stipulated that the Sacramento judgment was entered on March 20, 1951. The conversations which the witness testified to occurred after that date.) The witness Harris testified as follows: "Q. Did you ever have any conversation with Mr. Hansell about presenting these claims to the estate? A. Not until shortly before he did present it, and then I realized that it was beyond my power to do anything for him." (N.B. The claim was presented July 19, 1951.) "Q. ... do you recall that conversation? A. It was the day that Mr. Mundt called me and told me that we had won the case, and I called Mr. Hansell and told him that we had won the case and I hoped we would be able to pay him his money, or some money. Q. Do you recall when that was that Mr. Mundt called you? A. That must have been either May or June--I don't have the exact dates. Q. What year? A. 1951." The same witness testified to several conversations with the claimant and some of the relatives of the deceased in which the view was expressed that the claimant should be paid something out of the estate. These conversations all occurred during the trial of a case in Sacramento. These conversations may have taken place a few days before the time for filing claims had expired. But in none of them, and in no other evidence cited by respondent, was anything said *221 or done which would have led claimant to believe that it was not necessary for him to file the claim within the statutory time. (3) Appellant argues that the claim is barred by the two-year statute of limitations (it is based on personal checks given the deceased over a period running from 1930 to 1947); and also that it was error to permit the claimant to testify to the transaction because of section 1880, subdivision 3 of the Code of Civil Procedure. Since the order must be reversed for the reasons stated it would serve no purpose to discuss either point. Order reversed with costs to appellant. Goodell, J., and Dooling, J., concurred.	01-03-2023	10-30-2013

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