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https://www.courtlistener.com/api/rest/v3/opinions/1343737/ | 122 Cal.App.2d 244 (1953)
THE PEOPLE, Respondent,
v.
MORTON L. BENNETT, Appellant.
Crim. No. 944.
California Court of Appeals. Fourth Dist.
Dec. 22, 1953.
Everett H. Smith for Appellant.
Edmund G. Brown, Attorney General, Alan R. Woodard, Deputy Attorney General, William O. Mackey, District Attorney (Riverside), and W. B. Gustaveson, Deputy District Attorney, for Respondent. *246
GRIFFIN, Acting P. J.
Defendant was charged in an indictment with grand theft. In one count is is charged that on November 21, 1951, he took more than $200 from Clemens Hinke, and in another count that on November 23, 1951, he took more than $200 from Mrs. Esther J. Evenson. The charges and conviction on each count were based upon claimed false representations made in the sale of stamp-vending machines as a business to be conducted in Riverside County. Defendant, who lived in Los Angeles, was a distributor of the machines for the Federal Dispenser Corporation. The evidence shows that the corporation never authorized the distributor defendant to guarantee any certain profit or income from such machines when making sales thereof, and never authorized him to grant exclusive areas to any individual purchaser.
On November 19, 1951, defendant ran and paid for an advertisement in the Riverside newspaper which advertisement had been composed by the corporation. It reads in part:
"... Factory Distributor will select one Man or Woman to independently Own and Operate a route of"
"U.S. Postage Stamp Dispensers"
"In Riverside and Vicinity"
"This Adv. Will Appear Today Only! If you are a Reliable, Responsible person, this is an opportunity to become associated with Uncle Sam's largest industry that will give you a Steady, Profitable income for the rest of your life."
"This Is Not A 'Get Rich Quick' Business ... Distributor will make all necessary arrangements and assist the person selected in becoming established ... please don't waste your time or ours, as we are going to close this area at once. ..."
In response to the advertisement, Clemens Hinke, a retired farmer, was interviewed by defendant. According to his testimony, defendant was first asked if he was representing the Government, selling postage stamps, and defendant replied: "It is a whole lot better deal than if you were working for the Government. It will make you more money." Hinke then testified that he then expressed disinterest in the deal and the defendant explained the operation of the machine by a personal demonstration and said: "If you work it good and tend to them weekly as you should, they will average $8.00 per month ... each ... profit"; that Hinke replied: "If 20 machines make me $50.00 per month I will be satisfied," and defendant replied: "You will be surprised. They will pay for themselves in six months if you stay by it and attend to business"; that *247 he then told defendant he would try ten of them but defendant refused and said since Hinke was "the only one selected for this county" he sold them only in lots of 20 at a time, but if, after he got started, he wanted another county, he could have San Bernardino County too, and he could then purchase any additional machines in lots of five; that defendant then told the complaining witness that defendant's brother had about 400 machines operating back East in Indiana and he "made a killing off these machines"; that he then told the complaining witness that he had others ready to sign up for the machines in that county and suggested that Hinke sign up immediately. He did so and defendant was given a check for $1,031.34, covering the cost of the project. The machines arrived a few days later and defendant came out to assist in securing locations for them and putting up brackets in which to place the machines in oil stations, garages, stores, etc. After locating about seven places defendant went back to Los Angeles and said he would return the next day. The complaining witness called him when he failed to return, and defendant then sent some other person to assist in securing locations. He arranged for these places but the complaining witness was compelled to put up the brackets and place the machines in operation. It was discovered that the complaining witness had to secure a license and pay a tax for this operation in Riverside, and paid the fee of $22. He was compelled to take some of the machines down because the proprietors of the premises wanted a commission on the sales. He thereafter discovered that there were many similar machines in operation throughout the city. He kept a record of the income from the machines he had out, and for the months they were out he found that the net profit per machine was only 29 cents instead of approximately $8.00 per month, as represented by defendant. He testified he endeavored, during this period, to contact defendant by phone and by letter to the company, but he was unable to do so; that he, in July, 1952, finally took the machines down and sold them for $200; that when he invested his money in purchasing them and the route he relied on the representations of defendant that he would have the exclusive right to sell the stamps and operate the machines in Riverside County and that he also relied upon the representation that these 20 machines would make a net profit of about $8.00 per month each.
The second count involved Mrs. Evenson and her blind husband. They answered the advertisement and were visited by *248 defendant only a few days after the Hinke sale. Their story of defendant's representations is quite similar to those made to the Hinkes. Defendant represented to them that they would be the only operators of these machines in Riverside County; that the closest machines were in Pomona, in Los Angeles County; that they, therefore, must take at least 20 machines, and if they wanted to buy more they could have San Bernardino County; that he explained the operation of the machines; that the nickel slot gave the customers 4 cents in stamps, with 20 per cent profit to the owner, and the ten-cent slot gave 9 cents in stamps, with 10 per cent profit to him; that since more nickels would be deposited than dimes, the average profit would be 17 per cent; that his brother in Indiana had 100 machines and was averaging $10 per machine per month; that the machines would make $8.00 profit per machine per month for them if cared for properly, even if located on a tree, and if moved to better locations they would make at least $10 per month per machine.
A contract was then signed for 20 machines and $1,031.34 was paid. Defendant agreed to locate the machines but they never saw him after the sale. After considerable effort defendant was located, and he sent out his agent to assist in locating places for the machines. This agent located only two places the first day because the complaining witness said at nearly every place they went there was a similar machine located. The agent left because of a claimed appointment. Before leaving he asked the Evensons to sign a list of some prospective locations where they thought they could themselves locate some machines. They did this and the agent then informed them that even though these locations might be fictitious he wanted them to sign the listing because he would then be able to collect $3.00 per location from defendant.
Thereafter, the Evensons put up five machines at some of the best locations, and after four months they were taken down. A recapitulation of the gross income therefrom was $22.35, and the average gross profit per machine was 18 cents per month.
To prove the falsity of defendant's representations as to the net income of similar machines, an independent operator of 55 such machines in the territory, who had been in business for five years, showed that his average net profit per machine per month in 1949 was 35 cents and in 1952 was 90 cents.
At the trial, defendant testified that when he contacted the Evensons on November 21st, he had already made the sale to the Hinkes a few hours earlier; that he did not tell them *249 about the Hinke sale. He denied making any statement about Riverside being given as an exclusive territory to either of them. He stated that he had been such a salesman for only six weeks and did not make any independent investigation as to what income these machines would bring, but took it from the company's brochure that it was possible to obtain from $4.00 to $8.00 profit per month from each machine. He denied generally making the statements referred to by the witnesses, although he testified at the time he made the sale to the Evensons he did not think they had any business handling these machines because Mr. Evenson was blind, but since Evenson thought he could, he did not oppose his suggestion. Defendant relied upon the written agreement signed by the parties as constituting the entire transaction between them.
It appears that the Federal Dispenser Corporation "folded up" a few months after these sales, and defendant left Los Angeles. The complaining witnesses were unable to contact defendant or anyone in regard to the machines. An indictment was returned by the grand jury in March, 1952. Defendant stated he left in his trailer for the East with his family around February or March of that year. He was notified in St. Louis about the charges made by Evenson and Hinke but did not return to California until a month later, and lived in an auto court in Los Angeles. He was later found and arrested in November, 1952, and claimed he did not surrender himself when he learned of the charges because he did not have any money.
It is his contention on appeal that the evidence is insufficient to support the judgment for the reasons: (a) that there is no evidence to support the finding that the stamp-vending machines purchased by either of the alleged victims were not worth the full amount paid per machine; (b) that neither of the complaining witnesses paid any extra consideration for the alleged exclusive territory or for the alleged minimum guaranteed earnings per machine; (c) that the evidence is insufficient to support the finding that defendant made any false statement, pretense or representation of either a past or existing fact as an inducement to either complaining witness to purchase the vending machines in question; (d) that the court committed prejudicial error in instructing the jury in reference to flight; and (e) in denying defendant's motion for a new trial.
[1] The evidence shows that defendant made a considerable profit on the sales of these machines. About 20 of them *250 were sold by the Hinkes for $200. It was not the intrinsic value of the machines for which the complaining witnesses were negotiating. They were purchasing an exclusive business or route with the intention of making a profit from each machine as an integral part of such business, and if kept inactive, their intrinsic value, out of location, would not be the true value of the enterprise. The complaining witnesses paid a price of over $1,000 for this going business which it was represented would produce a net profit of about $8.00 per month per machine, and it does affirmatively appear that the complaining witnesses did not receive what they bargained for, as neither had received an exclusive business within the county, and neither party was able to realize any profit worth mentioning. Accordingly, there was sufficient evidence to show that each was defrauded out of an amount in excess of $200. This conclusion is supported by the decisions in People v. Helmlinger, 69 Cal.App. 139 [230 P. 675]; and People v. Raines, 66 Cal.App.2d 960, 962 [153 P.2d 424]. It is upon this theory that the prosecution based their case. [2] The doctrine of caveat emptor has no application to a criminal charge based on false representations. (People v. Bellew, 90 Cal.App.2d 801, 802 [203 P.2d 822].)
It is not necessary for the prosecution to show that either of the complaining witnesses paid any extra consideration for the exclusive territory or for the minimum guaranteed earnings per machine, as contended. That was supposed to be included in the sales price. Without the misrepresentations claimed, it is apparent that the sales would not have been consummated.
[3] Some contention is made that under sections 1856 and 1860 of the Code of Civil Procedure, no evidence of any other agreement was admissible, since the agreement was reduced to writing and signed by the parties to be charged, citing United Iron Works v. Outer Harbor Dock & Wharf Co., 168 Cal. 81 [141 P. 917]. A similar contention was made in People v. Frankfort, 114 Cal.App.2d 680, where it is said, at page 700 [251 P.2d 401]:
"The simple answer to this argument is that 'The people prosecuting for a crime committed in relation to a contract are not parties to the contract and are not bound by it. They are at liberty in such a prosecution to show the true nature of the transaction.' " (Citing several California cases.) See, also, People v. Chait, 69 Cal.App.2d 503, 519 [159 P.2d 445].
[4] It is likewise argued that there was no sufficient corroboration *251 of the false representations under sections 1110 and 1111 of the Penal Code. It affirmatively appears that the false representations relied upon were corroborated by the husband and the wife of the respective complaining witnesses, as well as by the nature of the advertisement inserted in the paper indicating that an exclusive right to operate in Riverside and vicinity was to be given to "One Man or Woman" and that "this area" would then be closed at once. We see no merit to this contention. (People v. Helmlinger, 69 Cal.App. 139 [230 P. 675]; People v. Chait, supra; People v. Frankfort, supra, and cases cited.)
There are cases cited by defendant which in effect hold that the criminal charge of obtaining money by false pretenses is not committed when the inducement is a promise to perform some act in the future, or is not predicated upon a false or fraudulent representation of a present existing fact or of a past fact. The cases cited are People v. Daniels, 25 Cal.App.2d 64 [76 P.2d 556]; People v. Kahler, 26 Cal.App. 449 [147 P. 228]; and People v. Beilfuss, 59 Cal.App.2d 83 [138 P.2d 332].
In this connection it is also argued that there is no evidence that defendant represented that the machines in question were in fact, at the time of signing the contracts, actually earning any specified sum per month per machine; that the only statement accredited to him was that in the future they were capable of earning $8.00 per month each if handled properly and placed in the right locations, citing People v. Jackson, 24 Cal.App.2d 182 [74 P.2d 1085]; and People v. Walker, 76 Cal.App. 192 [244 P. 94].
[5] The prosecution here relied on two representations made by defendant: (1) that each of the purchasers was receiving as exclusive territory, the County of Riverside; and (2) that the machines would earn a minimum of $8.00 per month per machine. The evidence shows that in connection with their contract they were then and there receiving an exclusive right to operate the machines in Riverside County. This representation, in and of itself, if relied upon by the parties, was sufficient to support the jury's verdict. In People v. Cravens, 79 Cal.App.2d 658, at page 664 [180 P.2d 453], it was said:
"It is sufficient to prove any single false representation on which the victim relied ... and the fact that false promises were likewise made is not important if there were also false representations of present or past fact which materially *252 contributed to the victim's parting with his property or money." (Citing cases.)
The evidence is sufficient to show that the parties relied upon this false representation and also that they relied upon the representation that the machines would make $8.00 per month per machine. [6] There is authority to the effect that where defendant's opinions were given concomitantly with his statements of fact, which gave material support to his opinions and expressed to men who were ignorant of the true facts, there was actionable fraud, citing cases. (See, also, People v. Davis, 112 Cal.App.2d 286, 298 [246 P.2d 160]; People v. Jones, 36 Cal.2d 373, 377 [224 P.2d 353]; People v. Mason, 86 Cal.App.2d 445, 449 [195 P.2d 60]; and People v. Gordon, 71 Cal.App.2d 606, 624 [163 P.2d 110].)
[7] Here, defendant represented as a fact that his brother had operated 100 or more similar machines and was averaging $10 per month per machine. The jury was authorized to believe this testimony. Defendant testified at the trial, however, that his brother did not have that number of machines and had not operated them long enough for him to obtain any knowledge of their income. The victims had the right to believe that defendant had information as to the income of the machines in the past and that his statement as to their earning ability was as represented. Under these circumstances the cases above cited are applicable.
[8] The instruction given on flight in the language of section 1127c of the Penal Code was properly submitted to the jury under the evidence. It shows that defendant departed from the state a short time after the commission of the crime, and remained away until about the time he was apprehended. His contention is that he left because of his business and was seeking employment in the East. The weight and credence to be given his testimony in reference to his departure and the claimed reasons therefor were questions for the jury to determine. (People v. Pianezzi, 42 Cal.App.2d 270, 280 [108 P.2d 685]; People v. Gregoris, 70 Cal.App.2d 716, 720 [161 P.2d 568]; People v. Leach, 90 Cal.App.2d 667 [203 P.2d 544].) No different questions were raised on the motion for new trial. The order denying it was proper.
Judgment and order affirmed.
Mussell, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343743/ | 121 Cal.App.2d 819 (1953)
THE PEOPLE, Respondent,
v.
DONALD BASS TROLINDER, Appellant.
Crim. No. 2443.
California Court of Appeals. Third Dist.
Dec. 11, 1953.
Gordon D. Schaber and Lawrence F. Girolami for Appellant.
Edmund G. Brown, Attorney General, and Gail A. Strader, Deputy Attorney General, for Respondent.
PAULSEN, J. pro tem.
After trial before a jury, defendant was convicted on two counts of an information charging violations of sections 288a and 288 of the Penal Code. Thereafter he was found not to be a sexual psychopath and an application for probation was denied. He was sentenced for the term prescribed by law on each count, the sentences to run concurrently.
His notice of appeal states that he appeals from the judgments and from an order denying his motion for a new trial. The record discloses that no motion for a new trial was made and the subject has not been referred to in the briefs. The appeal will therefore be considered as one from the judgments only.
As grounds for reversal it is contended that (1) the evidence was insufficient to support the verdicts; (2) it was an abuse of discretion on the part of the trial court to permit the prosecuting witness to testify; and (3) a proper cautionary instruction regarding child witnesses should have been given.
Donna Mae, 7 1/2-year-old daughter of defendant, was the victim of both offenses and her testimony concerning the details of the offenses was not directly corroborated.
It is undisputed that Donna Mae, her brother John, aged 9, and her brother Leslie, aged 5, had been living at the Juvenile Hall in Quincy for about a year prior to July 13, 1952; and that on the afternoon of that day defendant took them to the Clark cabins, one of which was occupied by him as a tenant of Mrs. Clark. There was testimony of apparently disinterested witnesses to the effect that defendant and the children first visited Mrs. Clark at her cabin and later, assisted by the children, defendant moved his belongings from cabin number 5 to cabin number 2. *821
During the afternoon Donna Mae and her brothers played various games about the cabins, defendant participating with the children in the games. After about two hours devoted to such activities, defendant and Leslie went into the cabin.
Donna Mae testified that for a short time after that she picked flowers and then went into the cabin where she found defendant and Leslie lying on the bed; that defendant called her and helped her onto the bed. Leslie was lying on the side next to the wall, defendant in the middle and Donna Mae on the outside. She further testified as follows:
"Q. What happened next, if anything? A. Daddy jerked me over to the other side."
"Q. Daddy jerked you over to the side of him, is that what you said? A. Yes."
"Q. And what happened next, if anything? A. And I didn't want to go over there."
"Q. You didn't want to go over there? A. No."
"Q. Why not? A. Because."
"Q. You were over here and he jerked you over there, is that right? (Indicating.) A. Yes."
"Q. Did anything else happen? A. Yes."
"Q. What happened, Donna; tell us. A. Daddy jerked my head down towards him and then he made me suck his penis."
"Q. Daddy jerked my head toward him and made me suck his penis, is that what you said? A. Yes. * * *"
"Q. Did you try to stop him from pulling your head down? A. Yes."
"Q. You did. How did you try to stop him? A. I stopped like that. (Witness illustrates.)"
"Q. Did he try to do anything to you at that time on the bed besides putting his penis in your mouth? A. Yes."
"Q. And will you tell us what that was? A. He bit me."
"Q. Where did he bite you? A. On my penis."
"Q. On your penis. Down where you go to the bathroom, you mean? A. Yes."
"Q. Was it right on the place where you go to the bathroom or the leg or where? A. Right where I go to the bathroom."
Donna Mae complained to her older brother immediately after the acts occurred. Later, while defendant was asleep, the children returned to the Juvenile Hall and she complained to the matron. *822
When Donna Mae was called as a witness the following occurred:
"Q. What is your name, Donna, your full name? Is it Donna Mae? A. Donna Mae."
"Q. And your last name is Trolinder, isn't it? A. Yes."
"Q. T-r-o-l-i-n-d-e-r? A. Yes."
"Q. Where do you live? A. In the Children's Home."
"Q. In the Children's Home in Quincy? A. Yes."
"Q. And do you have any brothers and sisters? A. I have some brothers."
"Q. What are their names? A. Leslie and Johnny."
"Q. How old is Leslie? A. Five."
"Q. How old is Johnny? A. Nine."
"Q. How old are you? A. Seven."
"Q. And when will you be eight? A. November 10."
"Q. Do you go to school, Donna? A. Yes."
"Q. Where do you go to school? A. Pioneer."
"Q. Pioneer. That is in American Valley, is that right? A. Yes."
"Q. And in what grade are you? A. First."
"Q. Are you starting the First Grade this year or have you finished the First Grade? A. I finished."
"Q. What grade will you be in next year? A. Second."
"Q. Do you go to Sunday School? A. Yes."
"Q. How often? A. Every Saturday."
"Q. And at Sunday School are you taught the difference between telling the truth and telling lies? A. Telling the truth."
"Q. You mean you are taught to tell the truth? Are you taught to tell lies? A. No."
"Q. Why? Do you know what happens to people that tell lies? A. (Witness nods head.)"
"Q. What happens? A. Get spanked."
"Q. If we ask you some questions here today will you tell us the truth or will you tell us lies? A. Truth."
"Mr. Janes: I'll ask that the witness be sworn, Your Honor."
"Mr. Keane: No objection."
"The Court: Very well. I doubt if she knows what an oath is but__________"
The witness was then sworn and the examination proceeded as follows:
"Mr. Janes: Q. Donna, do you realize that you just took an oath to tell the truth? A. Yes. *823"
"Q. Do you know what it means to put your hand up like that and say to tell the truth? A. Yes."
"Q. Does that mean you will tell us only the truth and not tell lies at all? A. Yes."
She then recited many details of family life--of interest only to the extent that they throw light on the question of her competence--and gave the details of the commission of the crimes already set forth herein.
Defendant's first and second contentions are so closely related that they will be considered together.
He does not question the well-established proposition that a child of 7 may be a competent witness but insists that the trial court abused its discretion in permitting her to testify after expressing a doubt of her ability to understand the nature of an oath and that the error in so doing is demonstrated by the unreliable character of her uncorroborated testimony.
[1] In the first instance, the question whether or not a child of that age is competent to be a witness lies within the discretion of the trial judge, and his conclusion as to the question of qualification is final on appeal unless there is an affirmative showing that he has abused his discretion in the matter. (People v. Trippell, 7 Cal.2d 612 [61 P.2d 929]; People v. Goff, 100 Cal.App.2d 166 [223 P.2d 27]; and People v. Terry, 99 Cal.App.2d 579 [222 P.2d 95].)
[2] It is said in People v. Meraviglia, 73 Cal.App.402, at page 410 [238 P. 794]: "The test of the competency of a child to testify in the trial of a case is that they may possess sufficient intelligence, understanding and ability to receive and fairly accurately recount their impressions; and that they have knowledge of the nature of an oath, and the moral sense to realize they should tell nothing but the truth, and are likely to be punished for telling falsehoods."
It has been held that the voir dire examination should be sufficiently broad and extensive to establish these requisites. (People v. Watrous, 7 Cal.App.2d 7 [45 P.2d 380].) [3] But whether or not there has been an abuse of discretion is a question to be determined by an examination of all the testimony of the child, especially where it is uncorroborated. (People v. Arcia, 85 Cal.App.2d 127 [192 P.2d 31].)
[4] Defendant contends that the testimony of the child shows that she had been coached; that it is therefore unworthy of belief and demonstrates the impropriety of permitting her to testify. He points out the fact that she used the *824 word "penis" when referring to the acts committed by her father and argues that a child of her tender years would not have been familiar with the word and must have been told what to say. He points out further that she remembered the details of the crimes but did not remember that she helped her father move his things from one cabin to the other.
The record discloses that she had discussed the case with the matron and others, but she explained the use of the word by saying she learned it from one of her brothers. Her explanation seems more reasonable in view of the fact that she also used the word in describing her own private parts.
Her recollection of the events of the day, generally, appeared to be excellent. She appeared to be truthful and intelligent and her testimony affords no evidence of her having been coached. A careful examination of the record convinces us that the court did not abuse its discretion in permitting Donna Mae to testify and that the evidence is sufficient to support the verdicts.
[5] It is finally contended that the court should have instructed the jury to view the testimony of the prosecuting witness with caution because a child of her age might not be able to "perceive the facts or relate them accurately."
The court of its own motion gave the following instruction:
"Charges such as those made against the defendant in this case are ones, which, generally speaking, are easily made, and once made, difficult to disprove even if the defendant is innocent. From the nature of a case such as this, the complaining witness and the defendant usually are the only witnesses. Therefore, I charge you that the law requires that you examine the testimony of the prosecuting witness with caution."
Such an instruction should be given in all cases of this kind, and the particular reason mentioned therein should be stated. (People v. Putnam, 20 Cal.2d 885 [129 P.2d 367]; People v. Lucas, 16 Cal.2d 178 [105 P.2d 102, 130 A.L.R. 1485].)
In People v. Putnam, supra, the defendant requested the following instruction: "You are hereby instructed to view with great care and caution the testimony of a child of immature years." The request was refused. In upholding the ruling the Supreme Court said: "There is no general rule that the testimony of children admittedly competent as witnesses is less trustworthy than the testimony of older persons: hence there is ordinarily no occasion for a cautionary instruction on that basis." *825
In this case the child was competent to testify and the court not only instructed on the rules to be followed in evaluating the testimony of witnesses generally but gave the cautionary instruction already quoted. There was no error in failing to instruct further on that subject.
The judgments are affirmed.
Van Dyke, P. J., and Schottky, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343745/ | 264 P.2d 687 (1953)
INDEPENDENT SCHOOL DIST. OF BOISE CITY
v.
C. B. LAUCH CONST. CO. et al.
No. 7887.
Supreme Court of Idaho.
December 18, 1953.
*688 Anderson & Kaufman, Willis E. Sullivan, Boise, for appellants.
Maurice H. Greene and Raymond D. Givens, Boise, for respondent.
PORTER, Chief Justice.
The plaintiff initiated this action to acquire by right of eminent domain three parcels of land for school purposes. The land sought to be condemned lies south of Boise river, between the river and Whitney bench, and is located between Capitol Boulevard on the East and Sixteenth Street on the West in the City of Boise. Parcel No. 1 lies immediately west of Capitol Boulevard, contains 4.6 acres and is referred to as the Lauch tract. Parcel No. 3 lies immediately east of Sixteenth Street, contains 51.57 acres and is referred to as the Eiden tract. Parcel No. 2 lies between Parcels No. 1 and No. 3, contains 41.554 acres and is referred to as the Mutual Finance Company tract. Respondent seeks to condemn such lands for use with adjacent lands as a campus-type high school site, and proposes to develop the entire tract as a community educational-recreational area.
Prior to the trial of this action, the owners of the Lauch tract and the Eiden tract consented that a judgment be entered therein condemning their lands. The action was defended at the trial only by the owners of the Mutual Finance Company tract, the same being appellants, John W. Eagleson and Effa H. Eagleson, husband and wife, John W. Eagleson, Trustee, and Mutual Finance Company, a corporation. The cause was tried to the court sitting without a jury. The court made findings favorable to respondent and entered a judgment of condemnation against appellants. From such judgment appeal has been taken to this court.
At the outset of their brief, appellants state: "The sole issue in this case is whether or not the respondent School District, already owning 88.36 acres in the area in question, has shown a necessity for condemning and taking the additional 41.554 acres of land owned by appellants." The 88.36 acres referred to by appellants include the Eiden tract and the Lauch tract condemned by this suit; and approximately 31 acres known as the Johns property and 1.2 acres known as the Shearer property lying immediately west of Capitol Boulevard and purchased by respondent prior to this suit in connection with the procurement of the high school site.
An examination of the testimony and the exhibits in this case show that respondent, as early as 1941, recognized the growing inadequacy of its high school plant. Extended studies of the district's increasing needs were made by its Board of Trustees and by the Superintendent of Schools. The Board caused to be employed Mr. J. Frederick Weltzin, an expert from the University of Idaho, to study and report on the needs of the school system of respondent. Such reports were made in 1944 and 1949. A number of sites were investigated to determine their suitability for the erection of a high school with its auxiliary buildings and play fields to accommodate 2,500 or more anticipated high school students. The proposed selection of the mentioned lands as a site for a new high school plant was discussed by school authorities with various service clubs and *689 other organizations; and literature on the subject was distributed to patrons of the schools prior to the final selection of the site by the Board of Trustees in 1949.
At the trial, the Superintendent of Schools testified at length concerning the reasonable necessity for the approximately 130 acres of land in question for the development of a campus-type high school site taking into consideration the existing needs and the presently foreseeable future needs of the district. In opposition, the Superintendent of Schools at Meridian, called by appellants, testified that 35 acres was sufficient ground for a high school of 2,500 students. Such witness further testified that the size of the grounds required was a matter of opinion.
It is well recognized in this state that after the court has determined the use for which the condemnation is sought is a public use, the question of the extent of and necessity for the taking should be left largely to the judgment and discretion of the public agency seeking to make the condemnation. In Washington Water Power Co. v. Waters, 19 Idaho 595, at page 610, 115 P. 682, at page 687, we said:
"The judgment of the company seeking to condemn would be ordinarily safer and more reliable than would be the judgment of any court. The court is to judge, as a matter of law in the first place, as to whether the use for which the condemnation is sought is a public use within the contemplation of the Constitution or the statute. After that question is determined by the court, the question of the extent of the enterprise and necessity for the taking should be in a large measure left to the judgment and discretion of the public agency seeking to make the condemnation. [Citations]. Of course, this will always be subject to regulation and control by the court. It cannot be arbitrarily exercised in any case."
In Boise City v. Boise City Development Co., Ltd., 41 Idaho 294, 238 P. 1006, the city was seeking to condemn land for the construction of Capitol Boulevard. This court approved the foregoing quotation from Washington Water Power Co. v. Waters, supra, and held that if the determination by the city of the land required for municipal purposes were made in good faith, it would not be interfered with by the courts.
In Grangeville Highway Dist. v. Ailshie, 49 Idaho 603, 290 P. 717, this court quoted with approval our foregoing quotation from Washington Water Power Co. v. Waters, supra; and the court held that the right to determine the necessity of highway improvement for which land is sought by eminent domain proceedings is with the highway district, and that the court should not interfere with the selection made except for an abuse of discretion by the officials or actual fraud.
In the recent case of Graham v. City of Tulsa, Okl., 261 P.2d 893, there was involved the condemnation of land for an extension of a city street. The court held in effect that the action of the city was fairly in the interest of the public in the sound discretion of the city officials, and in the absence of fraud, oppression or some definite abuse of discretion, the court would not interfere. To support its position the court cites, Grangeville Highway Dist. v. Ailshie, supra, and State ex rel. Stephens v. Superior Court, 111 Wash. 205, 190 P. 234.
Of the entire tract selected, respondent has acquired by purchase or condemnation approximately 37 acres on the east side and 51 acres on the west side. Appellants' 41 acres lie in the middle between respondent's two tracts. It is largely pasture land and has only minor improvements. Respondent's proposed plan of development shows the location of the buildings generally in the middle of the entire tract and situated to a substantial extent upon the Mutual Finance Company tract. A failure by respondent to acquire appellants' land would seriously handicap and restrict the use of respondent's two tracts and the harmonious development of a campus-type high school facility.
Respondent is a public body proposing to expend public monies for school purposes. It is the right and duty of respondent *690 in its planning to take into consideration not only its present school needs, but its reasonably foreseeable future needs. In Washington Water Power Co. v. Waters, supra, we recognized that a private corporation was entitled, when seeking to condemn property, to take into consideration anticipated increased future demands for the public service involved, and said:
"Again, there must be conceded to the condemning company some discretion as to the extent of the enterprise they will inaugurate, and the amount of investment they will make for the purpose of anticipating the future development of the country, the increased population, and multiplied demands for the public service which they are about to inaugurate."
In the Reader's Digest for the month of December, 1953, there appears a thought-provoking article condensed from Time magazine entitled "The Great Baby Boom". The article considers the impact upon our economy of the large and unanticipated increase in the rate of growth of our population. It forcibly points out the great expansion which will have to be made in the next few years in our private industrial plants and in our public facilities such as public schools.
We do not find in the record any evidence of fraud, oppression or abuse of sound discretion by the Board of Trustees of respondent in evaluating their present and reasonably anticipated future need for the land sought to be condemned as part of a site for a high school plant.
Furthermore, we have uniformly held that where, as here, there is substantial, though conflicting, evidence to support the findings of the trial court, such findings will not be disturbed on appeal. Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589; Moss v. Vest, Idaho, 262 P.2d 116; Conley v. Amalgamated Sugar Co., 1953, Idaho, 263 P.2d 705.
Appellants also contend that the court committed prejudicial error in sustaining objections to the testimony of the witness for appellants, Grover C. Sullivan, and in rejecting their offer to prove by such witness that 35 acres were sufficient for a high school of 2,500 students. The court denied the offer of proof on the ground that the witness had not shown himself qualified as an expert. An examination of the qualifications of the witness discloses that he was without experience in the building and development of a high school approaching the size of the one in question. His opinion, if admissible and admitted, would have been of such slight weight as evidence that the court's rejection of same would not sustain a finding of reversible error.
The judgment of the trial court is affirmed. Costs awarded to appellants. Portneuf-Marsh etc. Co. v. Portneuf Irr. Co., 19 Idaho 483, 114 P. 19; Washington Water Power Co. v. Waters, supra; Rawson-Works Lumber Co. v. Richardson, 26 Idaho 37, 141 P. 74; Bassett v. Swenson, 51 Idaho 256, 5 P.2d 722.
BAKER and ANDERSON, District Judges, concur.
TAYLOR, Justice (dissenting).
In my opinion, no reasonable necessity is shown for the taking of so much land.
KEETON, Justice (dissenting).
The plaintiff school district now owns 88.36 acres of land acquired as a school site and seeks in this proceeding to acquire 41.554 acres more contiguous to the land already acquired, intended ultimately to accommodate approximately 2500 students. Besides land necessary to construct school buildings, plaintiff desires land on which to construct a gymnasium to seat 5000 spectators; three or four football fields; ten to fifteen acres for a band drill area, four baseball fields, possibly a golf course, two soccer fields, eight basketball courts, twenty tennis courts, four volley ball courts; space is also desired for croquet, ten to twenty horseshoe pits, tag games, picnic grounds, skating areas; fifteen to twenty acres for parking purposes, space for nature study and other purposes.
In my opinion the acquiring of the additional acres of ground for the purposes contemplated is unnecessary and no reasonable necessity has been shown. The *691 total land sought to be acquired would be spacious enough to accommodate some of the large universities of the United States. Statutes authorizing the taking of private land for public purposes, under prescribed conditions, never contemplated that a school district would be permitted to go into the real estate or parking business.
The fact, if it is a fact, that the land sought to be acquired is mostly unimproved farm land is of no importance. The question is, does a public necessity exist? In my opinion the contention of plaintiff cannot be upheld.
The judgment should be reversed and the proceeding dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343755/ | 76 Ariz. 340 (1953)
264 P.2d 831
SIBLEY et al.
v.
JEFFREYS.
No. 5689.
Supreme Court of Arizona.
December 14, 1953.
*342 Byrne & Green, Yuma, for appellants.
Westover & Mansfield and John H. Westover, Yuma, for appellees.
WINDES, Justice.
Suit by appellee Sid Jeffreys against appellants Harry Sibley and Phil Sibley for unlawful detainer of 120 acres of unsurveyed land belonging to the United States government. Parties will be referred to as they appeared in the trial court.
Briefly the complaint alleges that the plaintiff for over ten years last past has been in the peaceable possession of the property and that during the past four years plaintiff gave defendants permission, at their request, to enter upon the land and use a portion thereof for hog raising and limited farming; that the plaintiff by written notice terminated defendants' right of occupancy and the defendants refused to surrender possession. Defendants' answer denies that plaintiff ever was or now is entitled to the possession of the property; *343 denies that they took possession with the permission of or as the result of any authority from the plaintiff or that they sought such from him. The answer affirmatively alleges that defendants took possession on their own initiative and expended approximately $12,000 in improving the same. On the issues thus framed the matter was tried before a jury resulting in verdict and judgment for the plaintiff. Upon defendants' motion for new trial being denied, defendants appeal.
Their first assignment of error, containing seven subdivisions, when reduced to its essentials is that the court erred in not granting the motion for new trial because the evidence did not legally warrant the verdict and judgment.
It is claimed that there was no evidence establishing that the plaintiff ever had possession of the property. This presents for solution the problem of what is essential to establish a possessory right to the public domain that the court will protect against an alleged intruder. The property was not enclosed nor were its boundaries well-defined. There was evidence that there was or had been a fence extending part way along the north boundary. The plaintiff owned a herd of goats which had been grazed upon this and other adjacent property for a substantial length of time. Originally one Beasley had constructed improvements consisting of small houses one-fourth of a mile south of the south boundary, which improvements had been purchased by the plaintiff. Stock fences and two wells with pumps were near the houses. Plaintiff testified he had by means of chopping ax cleared some 15 or 20 acres and that the defendants knew he was claiming occupancy of the land. Also, plaintiff testified that defendants requested and were granted permission to occupy the land.
The test of possession seems to depend upon whether one is in the occupancy of land with the intent to control it. Restatement, Torts, Volume 1, Section 157. The comment under this section defines occupancy as "such acts done upon the land as manifest a claim of exclusive control thereof and indicate to the public that he who has done them has appropriated the land." Most of the decisions upon the question of what does or does not amount to possession of unenclosed land arose under the issue of adverse possession of privately owned land, but there appears no logical reason for a different test of what may be legally sufficient to constitute the degree of control that will meet the requirements of possession in the case before the court. There are many cases upon the subject and some conflict in the authorities, but we think the proper rule is announced in Sheldon v. Mull, 67 Cal. 299, 7 P. 710, wherein the court said, "Actual possession of land may be had without fences or inclosure." See also Myers v. Hatler, 121 Or. 332, 254 P. 355; Webber v. Clarke, 74 Cal. 11, 15 P. 431. We believe that there was sufficient evidence from which the jury could find that the *344 plaintiff was in possession of the property at the time the defendants moved thereon.
There is a sharp conflict in the evidence as to whether defendants asked and secured permission from the plaintiff to occupy the property. Plaintiff contends defendants asked for such privilege and it was granted subject to termination at the will of plaintiff. This is disputed. On the assumption that such permission was given (and the jury could have found such fact), plaintiff contends the relationship of landlord and tenant resulted and that consequently under the familiar rule that a tenant cannot dispute the landlord's title these defendants are estopped to deny plaintiff's right of possession. We do not think plaintiff can invoke this rule. The nature of a possessory right to public domain is well stated in Missionary Society of M.E. Church v. Dalles City, 107 U.S. 336, 2 S.Ct. 672, 678, 27 L.Ed. 545, as follows:
"* * * All persons, therefore, who settled upon the public lands acquired no rights thereby as against the government. They were merely tenants by sufferance. The most they could claim was the right of actual occupancy as against other settlers. Such an occupant could yield his right of actual possession to another settler, but he could convey no other interest in the land. If he abandoned the land and another settler occupied it, the former lost all right to the possession. If he transferred the possession to another and the transferee abandoned the land, the first possessor could claim no right in the land unless he again took actual possession. In short, the settler had no right as against the government, and no rights under the laws of the United States as against any one else to the possession of the land in his actual occupancy, except and only so long as such occupancy continued."
We recognize there is authority for invoking this rule of estoppel when there actually exists a lease between parties and the lessee has recognized the validity of lessor's possessory right by the payment of rent for the use of the premises, Shy v. Brockhause, 7 Okl. 35, 54 P. 306, but we do not think that one having such possessory right who gratuitously delivers the same to another relinquishes the possession without consideration creates such a relationship of landlord and tenant as will estop the one to whom such relinquishment is made from questioning the original right of possession. The trial court was therefore correct in requiring the plaintiff to prove his right of possession at the time the defendants moved on the property.
Error is claimed in the admission and exclusion of evidence, in the giving of certain instructions to the jury, and in improper remarks of counsel in his argument.
Plaintiff's counsel propounded the following question to the defendant: "You were convicted of a felony in Luna County, *345 were you not, prior to May 14th, 1923, for grand larceny?" Over his objection, defendant answered in the affirmative. The general rule is that for the purpose of impeachment a showing may be made of prior conviction of a felony unless it is so remote that it cannot reasonably cast a reflection upon the witness' credibility. There is no exact yardstick to measure the time that must elapse to blot out the relevancy of such former conviction; it is largely a matter of court discretion considering not only the time element but length of imprisonment, subsequent conduct, age and intervening circumstances. 70 C.J., Witnesses, Section 1057. State v. Dillman, 183 Iowa 1147, 168 N.W. 204; Fire Ass'n of Philadelphia v. Weathered, 5 Cir., 62 F.2d 78, 79. A good statement of the rule is found in the last-mentioned case:
"It is well settled that the prior commission of a felony by a witness may be proved for the effect it may have upon his credibility, and that record proof is unnecessary where such witness on cross-examination admits the fact of his conviction. But with the lapse of time proof of this kind becomes more and more unsatisfactory and unreliable until at last it becomes wholly immaterial. * * *"
The witness attempted to explain that it was during his youth. The question shows conviction for larceny approximately 30 years ago. From all that appears, he has been a law-abiding citizen during his adult life. We do not think that such an offense committed during youth so long in the past could have any reasonable bearing on the credibility of the witness unless there is some showing that during the intervening years his conduct was such as to indicate or infer no reformation. Certainly evidence of this character is highly prejudicial before a jury and we think it was reversible error for the court to admit the same. Defendants submitted affidavits that this matter was discussed by the plaintiff's counsel in argument to the jury. Since no such evidence will be allowed on retrial, it is unnecessary to discuss this assignment.
It is claimed that the court should have permitted witness Robinson to testify as to the boundary of the property claimed by Mr. Beasley, now deceased, predecessor in interest of the plaintiff. While there is no avowal of proof of what this witness' testimony would show, presumably it was offered to prove that the transferor of the plaintiff did not claim possession of the property in dispute. The general rule seems to be that a deceased owner's statement concerning his claimed boundaries is admissible if it appears there is no motive or reason for misrepresentation at the time the statement was made, and under certain circumstances evidence of common reputation concerning such boundaries is admissible. 8 Am.Jur., Boundaries, Sections 95 and 96. In the instant case the questions were not presented to the witness in such a manner as would enable defendants to claim error in the *346 court's ruling. The question submitted called for an answer as to boundary by general reputation, whereas the only source of the witness' information was from Mr. Beasley. Such meager knowledge on the part of the witness hardly qualified him to testify concerning boundary by general reputation. We think the court ruled correctly on this matter.
The defendant Phil Sibley was asked if he knew the extent of the Beasley claim, which question he answered in the affirmative. On voir dire it developed that the only source of information upon which he based such affirmative answer was what Mrs. Beasley told him. Mrs. Beasley is still living. The court upon objection refused to permit the witness to testify concerning the boundaries upon the ground that this source of information was hearsay. This is assigned as error. The ruling was correct. Any knowledge the witness thus exhibited concerning the subject matter was clearly hearsay.
By assignment No. 3, defendants complain of the erroneous exclusion of evidence offered and proceed to consume 38 pages of brief in setting out 22 illustrations of such evidence offered and rejected. Of these the only ones specifically argued in the brief are discussed heretofore. While superficially there appears to be some merit in defendants' complaint as to some of these illustrations, yet we feel we should invoke the rule that claimed errors not argued shall be considered abandoned. We do not assume the burden of searching for reasons to say that the trial court erred. This is defendants' burden. We refuse to rule on these matters.
Defendants assign as error the giving of certain instructions to the jury. Plaintiff states in his brief that no objections were submitted to the lower court concerning the giving of these instructions, and defendants not having disputed this, we assume without searching through the record that no such objections were made. Under these circumstances defendants are not entitled to base error thereon and we refuse to consider the assignment. Rule 51, Rules of Civil Procedure, Section 21-1019, A.C.A. 1939.
Reversed and remanded for a new trial.
STANFORD, C.J., and PHELPS, LA PRADE and UDALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343797/ | 264 P.2d 355 (1953)
HALES
v.
HENRY BLACK, LIMITED, Inc.
No. 35444.
Supreme Court of Oklahoma.
November 17, 1953.
Rehearing Denied December 22, 1953.
*356 Robert O. Swimmer, Oklahoma City, for plaintiff in error.
McClelland, Kneeland, Bailey & McClelland, Oklahoma City, for defendant in error.
PER CURIAM.
Henry Black, Ltd., plaintiff below, brought this action against Hales Jewelry Company to recover $870, together with interest from January 1, 1948 representing cost of merchandise shipped to the defendant. A second cause of action was prosecuted for the recovery of $57.50, together with interest from November 21, 1947. At the close of all the evidence the court directed the jury to return a verdict for the plaintiff on both causes of action and entered judgment against the defendant in the amount of $1,138.93. Defendant, in open court, admitted liability on the second cause of action and does not appeal from that part of the judgment. The only question before this court is whether or not the trial court committed error in directing a verdict for the plaintiff on plaintiff's first cause of action, defendant complaining that the cause should have been submitted to the jury. The evidence shows that Henry Black, Ltd., is a corporation with its principal place of business in New York City and in October, 1947 mailed the defendant jewelry company in Oklahoma City certain jewelry valued at $870, which the defendant had previously ordered on open account. Defendant's evidence indicated that the goods were received by defendant in Oklahoma City and promptly re-packed and delivered to the Railway Express Company for return to plaintiff. Apparently, the goods were either lost in transit or misappropriated after their return to plaintiff. Through past dealings it was mutually understood between the parties that all sales would be shipped to the buyer and that if the buyer elected he might within a reasonable time notify the seller that he did not wish to keep the merchandise and could then return the merchandise without obligation to pay any money in connection with the returned shipment. When the goods involved in this lawsuit arrived in Oklahoma City they were inspected by the defendant, and according to defendant's evidence, defendant elected to return the goods. Mrs. Hales testified that she supervised the packing of a parcel containing the goods valued at $870 and also other goods valued at $3300. This package, according to Mrs. Hales, was then delivered to the Railway Express addressed to the plaintiff in New York City and defendant was given receipt # 20-45-64 by the Railway Express Company. The Railway Express Company's copy of receipt # 20-45-64 *357 was received into evidence indicating a declared value of $3300 and bearing the following notation in ink:
"This shipment del'd Nov. 24, 1947 Henry Blacks by (illegible signature) 12 P.M."
Plaintiff admitted receiving shipment # 20-45-64 but insisted that it contained only merchandise valued at $3300 and did not include the merchandise involved in this lawsuit and valued at $870. Correspondence was received into evidence between the parties wherein defendant insisted that it had shipped the goods to plaintiff and under their mutual agreement had no further obligation in connection with the merchandise. Plaintiff replied:
"Please do not feel that we are reneging on our promise to accept the return of this merchandise."
However, plaintiff insisted that it had never received the goods claimed to have been returned and could not credit defendant's account for this reason.
From the evidence it clearly appears that this transaction was not an absolute sale upon arrival of the goods in Oklahoma City, but was a sale and return. Subsequent correspondence of the parties, received into evidence, shows that both parties interpreted their contracts, including the one involved herein, as sales which could be voided by the purchaser upon prompt exercise of his option to return the merchandise. Subsequent conduct of the parties to a contract may be considered in arriving at their intention, Victory Investment Corp. v. Muskogee Electric Traction Co., 10 Cir., 150 F.2d 889, 161 A.L.R. 1436; McDowell v. Droz, 179 Okl. 119, 64 P.2d 1210.
We have held in Johnson v. Curlee Clothing Co., 112 Okl. 220, 240 P. 632, that under a sale or return contract the purchaser must bear the loss, as against the seller, if the merchandise is damaged while being returned to the seller. This for the reason that title is in the purchaser until he actually returns the goods to the seller, and the owner of personal property must bear the risk of loss or damage to the property The carrier becomes the agent of the purchaser while the goods are being returned to the seller. However, once goods sold under sale or return, are actually returned to the seller or his agents, title again vests in the seller, and as against the purchaser, the seller must bear the risk of loss or damage. Accordingly, if the goods were lost while in transit plaintiff must prevail; but if they were delivered to plaintiff or plaintiff's agents by the carrier and subsequently misappropriated or lost, defendant must prevail. We think defendant's direct testimony that the goods were packaged in shipment # 20-45-64 which plaintiff admits receiving is sufficient to send the case to the jury. For the purposes of the motion for directed verdict we must assume that defendant's evidence is true and that in fact shipment # 20-45-64 included not only the $3300 merchandise but also at the time of delivery to the carrier included the $870 merchandise, Maryland Casualty Co. v. De Armon, 179 Okl. 60, 64 P.2d 719. There is at least strong circumstantial evidence that shipment # 20-45-64 arrived at plaintiff's store intact. Plaintiff admits the package arrived and that the $3300 merchandise was removed from it. This was a sealed air express package. Plaintiff at no time claimed that shipment # 20-45-64 had been tampered with. Reasonable men could have concluded from this evidence that package # 20-45-64 arrived containing the same contents as at the time of shipment from Oklahoma City. There was a disputed question of fact and the trial court should have submitted the cause to the jury under appropriate instructions.
The case is remanded for a new trial on the first cause of action only.
HALLEY, C.J., JOHNSON, V.C.J., and WELCH, CORN, DAVISON, and WILLIAMS, JJ., concur.
O'NEAL and BLACKBIRD, JJ., dissent.
This Court acknowledges the services of attorneys Truman B. Rucker, W. Preston *358 Woodruff and Joe Shidler, who as special masters aided in the preparation of this opinion. These attorneys were recommended by the Oklahoma Bar Association, approved by the Judicial Council, and appointed by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743691/ | 771 So.2d 768 (2000)
Winona CROSS and Frank Cross
v.
LAKE AREA REHABILITATION SERVICES, INC. and Robert Beaugh, Individually.
No. 00-00224-CA.
Court of Appeal of Louisiana, Third Circuit.
October 11, 2000.
*769 W. Thomas Barrett, III, Lake Charles, LA, Counsel for Plaintiff-Appellant.
William M. Bass, James P. Doherty, III, Lafayette, LA, Counsel for Defendants-Appellees.
(Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS and MARC T. AMY, Judges).
SAUNDERS, Judge.
Winona Cross (Appellant) alleged Defendant, Robert Beaugh, injured her back during a physical therapy session on May 12, 1997. The trial court judge ruled in favor of the Defendant. We affirm.
FACTS
On April 16, 1997, while employed by Lake Area Medical Center (Lake Area), Appellant fell outside the nursery door at Columbia Women and Children's Hospital. Appellant struck her knee on the stairs outside the nursery, bounced up, and then fell back striking her left knee on the stairs a second time. As a result of that accident, Appellant began treatment with Dr. Lynn Foret, an orthopedic surgeon, who performed an arthoscopy on April 25, 1997.
Appellant began physical therapy at Lake Area on May 6, 1997. Mr. Beaugh, a physical therapist with Lake Area, treated Appellant for her knee injury and back pain. Appellant alleged Mr. Beaugh injured her on May 12, 1997 during a physical therapy session. At the time of the injury, Appellant was sitting cross-legged on the examination table. Appellant claims the injury occurred while Mr. Beaugh stood behind her and performed manipulations on her back. Appellant described her injury as a "feeling of something just being torn apart and just literally ripped apart."
In her deposition, Appellant described the extent of her prior back pain as only "tired pain." Yet, in 1996, a year before the alleged injury by Beaugh, Ladd Allain, a chiropractor, had treated Appellant during more than sixty sessions. Appellant's chiropractic treatment with Dr. Allain included manipulations down Appellant's entire spinal column. During her time in his care, Dr. Allain informed Appellant that degenerative changes were creating her lower back pain. Additionally, at trial, Appellant testified that she had received treatment from Dr. Allain the morning of the alleged injury by Mr. Beaugh.
Despite Appellant's alleged injury of May 12, 1997, she returned to Lake Area seeking additional treatment from Mr. Beaugh on May 13, 1997 and May 14, 1997. On May 15, 1997, Appellant reported experiencing back pain on May 12, 1997 when reaching for her seatbelt after physical therapy to Dr. Foret. Appellant never told Dr. Foret that she had been injured by Mr. Beaugh.
LAW AND ANALYSIS
STANDARD OF REVIEW
The Appellate Court may not set aside a trial court's or jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." J.B. Talley & Co., Inc. v. Vilaret Const. Servs., Inc., 98-395, p. 8 (La.App. 3 Cir.10/7/98); 722 So.2d 9, 13, writ denied, 99-0374 (La.3/26/99); 739 So.2d 798. The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong, but whether the fact finder's conclusion was a reasonable one. Syrie v. Schilhab, 96-1027 (La.5/20/97); 693 So.2d 1173.
*770 ASSIGNMENTS OF ERROR
On appeal, Plaintiff-Appellant seeks reversal of the trial court's decision based on the following three assignments of error:
1. The trial court erred in finding that Plaintiff's credibility had been diminished;
2. The trial court erred in admitting the typewritten statement of the deceased Defendant, Mr. Beaugh, written after he was notified a claim was being made against him;
3. The trial court erred in allowing the testimony of Defendants' physical therapy expert, Fredrick Stoote.
The court will address each of these assignments of error in turn.
PLAINTIFF'S DIMINISHED CREDIBILITY
In her opinion, the trial judge found that the Defendants had successfully attacked the credibility of Plaintiff's testimony. Specifically, the trial judge set forth seven reasons for her finding. The reasons are as follows:
1. A lawsuit regarding a fall at Columbia Women and Children's Hospital, which occurred just prior to the instant incident in which she claimed to have "sustained severe and permanent injuries to her back resulting in physical pain and suffering as well as emotional distress";
2. Her minimization in her deposition of the previous treatment of her back by a chiropractor. Said treatment exceeded 60 sessions of treatment on her low back and neck. Additionally, the chiropractor's pain evaluation of her low back at a time when she "was doing well" is essentially no different since the instant accident, except for the two visits directly before trial;
3. Her chronic mental health problems, which include chronic depression caused by both organic and situational factors which have no relation to the instant lawsuit;
4. Her denial that she resigned from Cal-Cam Hospital due to impending discipline for medication errors where the evidence clearly demonstrates the connexity of the two events;
5. The Plaintiff reported to her orthopedist that her low back pain began as "insidious onset with reaching for seat belt" and gave no account of an unorthodox manipulation (this "insidious onset"version concurs completely with the affidavit of the Defendant, D-6);
6. Plaintiff recounted the same series of events to the Defendant with no mention of therapy causing immediate and excruciating pain. In spite of what she described as [an] excruciating experience with the Defendant, she returned to his facility. Furthermore, as reflected in the progress notes of Kevin Faulk, an associate of Beaugh and former employee of Lake Area Rehabilitation Services, Plaintiff "states that she feels something is wrong (with) her back not related to manipulation";
7. Numerous other minor discrepancies and inconsistencies which, although relevant, are unnecessary to list due to the above listed factors.
Upon review of the record by this court, it is evident that the trial court did not make a manifest error by finding that the Appellant's testimony had diminished credibility. The trial judge is the finder of fact and has discretion to accept or reject the testimony of any witness. Broussard v. Guilbeaux, 93-1353 (La.App. 3 Cir. 5/4/94), 640 So.2d 509. The appellate court is not authorized to reassess credibility of witnesses or reweigh medical evidence upon appellate review unless the fact finder's conclusions are clearly wrong. Lewis v. Malone & Hyde, Inc., 626 So.2d 531 (La.App. 3 Cir.1993). Here the record clearly supports the trial court's finding, and this court has neither the authority nor the desire to reverse its decision.
*771 ADMISSIBILITY OF DEFENDANT'S STATEMENT
Appellant's second assignment of error is that the trial court improperly admitted Mr. Beaugh's written statement into evidence. Appellant objects to the admissibility of the statement because Mr. Beaugh wrote it after he became aware of her claim. Appellant further objects to the admissibility of the statement because Mr. Beaugh did not write it at the time of Appellant's treatment, under oath, or subject to cross-examination. Finally, Appellant asserts that such a written statement made in anticipation of litigation is unreliable, self-serving, hearsay testimony that should have been excluded at trial.
Mr. Beaugh died prior to taking any depositions or live testimony in this litigation. The Appellant and Mr. Beaugh were the only witnesses to the incident. The applicable law controlling the admissibility of a deceased person's statement is Louisiana Code of Evidence Article 804. Article 804 provides an exception to the hearsay rule when the declarant is unavailable. According to Article 804(A):
A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is "unavailable as a witness" when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other sufficient cause.
Article 804(B)(6) states the following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) Other exceptions. In a civil case, a statement not specifically covered by any of the foregoing exceptions if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates and the proponent of the statement makes known in writing to the adverse party and to the court his intention to offer the statement and the particulars of it, including the name and address of the declarant, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it. If, under the circumstances of a particular case, giving of this notice was not practicable or failure to give notice is found by the court to have been excusable, the court may authorize a delayed notice to be given, and in that event the opposing party is entitled to a recess, continuance, or other appropriate relief sufficient to enable him to prepare to meet the evidence.
Clearly, the first requirement of Article 804, that the declarant be unavailable, has been met. Mr. Beaugh was unavailable to testify at trial of the matter because of his death. The second part of the exception provided for under Article 804(B)(6) requires the party offering the statement show three things in order for the statement to be admissible. First, the exception requires that the circumstances of the case show the statement to be trustworthy. Second, the proponent of the statement must have adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates. Finally, the proponent of the statement must have made known in writing to the adverse party and the court his intention to offer the statement and the particulars of it, including the name and address of the declarant.
The circumstances surrounding the statement show the statement to be trustworthy. At issue in this case is whether Appellant's back pain was caused by the manipulations of Mr. Beaugh during their physical therapy session on May 12, 1997. *772 Mr. Beaugh's statement revealed that Appellant had telephoned Mr. Beaugh on May 13, 1997 and told him that after the treatment she had felt no significant effects. In addition, Mr. Beaugh's statement recalled Appellant saying that, while in her car on the evening following treatment, she had reached across the seat and felt a sudden pain in her low back.
This account comports with the information Appellant provided her treating physician, Dr. Lynn Foret. In his deposition, Dr. Foret testified that Appellant had telephoned him on May 15, 1997, and told him that she had experienced lower back pain on May 12, 1997, while reaching for her seatbelt. Nowhere in Dr. Foret's notes did Dr. Foret mention that Appellant related her back pain to Mr. Beaugh's physical therapy. Dr. Foret's notes did indicate, however, that during the July 15, 1997 visit, Appellant stated she was not any better in her lower back since the fall. Dr. Foret also stated that Appellant never expressed to him that she was hurt by Mr. Beaugh.
At trial, the Defendants produced independent evidence which substantiates the trustworthiness of Mr. Beaugh's statement. Most significantly, the deposition testimony of Dr. Foret and his notes corroborate the statement made by Mr. Beaugh. Therefore, we find that the Defendants satisfactorily proved the trustworthiness of the statement at trial.
Secondly, the Defendants have shown that they adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates. The Appellant has not referred us to any evidence left unaddressed at trial, and our review of the record does not suggest the absence of any evidence.
Finally, the Defendants made known in writing to the Appellant and to the court their intention to offer the statement. Defendants provided an Exhibit List on May 28, 1999 to the Appellant and the trial court which included the typed statement of Mr. Beaugh. Providing Mr. Beaugh's address with the statement would have been fruitless as he was deceased at the time the statement was made an exhibit. Therefore, we find that the trial court did not commit a manifest error in admitting Mr. Beaugh's typewritten statement.
TESTIMONY OF DEFENDANT'S PHYSICAL THERAPY EXPERT
In Appellant's final assignment of error, she asserts that no specialities exist within the field of physical therapy; therefore, the trial court was obliged to apply a "locality rule" or "community standard" in determining the standard of care required of Mr. Beaugh. Appellant argues the trial court erred in admitting the expert testimony of Fredrick Stoot, a physical therapist who resides and practices in Colorado Springs, Colorado.
Appellant bases her objection on Herpin v. Witherspoon, 95-370 (La.App. 3 Cir. 11/2/95), 664 So.2d 515, in which the this court upheld a trial court's determination that the defendant dentist was a general dentist not a specialist. The court found that because the dentist was a generalist, he should be held to the same standard of care exercised by other dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale under similar circumstances.
The instant case is distinguishable from Herpin v. Witherspoon. While it is true that the "local standard" applies to general practitioners, as opposed to the national standard applying to specialists, Fredrick Stoot was properly admitted as an expert. In Herpin, the offered expert had only limited knowledge of the standard of care employed in the community of Southwest Louisiana. Fredrick Stoot's knowledge of the standard of care employed in Southwest Louisiana, however, is much greater. First, Stoot was personally familiar with Mr. Beaugh and his treatment mechanisms because Stoot was Mr. Beaugh's instructor and his supervisor for five months when Mr. Beaugh worked in Colorado. Second, Stoot was present in *773 court and listened to the testimony provided by other experts regarding the standard of care of physical therapists in Southwest Louisiana. Third, Stoot testified that the standard of care testified to by the other experts at trial is no different from the standard of care in Colorado. Finally, Louisiana and Colorado enjoy a reciprocity agreement that allows a physical therapist who is licensed and in good standing in one state to be authorized to practice in the other state upon application. Since Louisiana and Colorado have the same standard of care for physical therapists, an expert in physical therapy from Colorado may testify as to the standard of care in Louisiana. The testimony of Fredrick Stoot was therefore properly admissible.
DECREE
Considering the foregoing discussion, we find that the trial court did not err in finding judgment in favor of the Defendants, Lake Area Rehabilitation Services, Inc. et al. All costs of this proceeding are assigned to the Defendants.
AFFIRMED.
AMY, J. concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343819/ | 264 P.2d 751 (1953)
BINGHAM et al.
v.
WILLIAMS.
No. 35258.
Supreme Court of Oklahoma.
December 8, 1953.
*752 Maurice F. Ellison, Tulsa, Hamilton & Kane, Pawhuska, for plaintiffs in error.
Frank T. McCoy, and John T. Craig, Pawhuska, for defendant in error.
WILLIAMS, Justice.
Parties are referred to herein as in the trial court.
This action was brought by Emmett O. Williams against the defendants, C.A. Bingham, S.W. Collins and Clarence Rake, to recover damages caused by pollution of fresh water on the half-section farm and pasture occupied by plaintiff, the agricultural tenant, by salt water, oil and other deleterious substances from two adjoining quarter section oil leases, separately owned and operated by Bingham and Collins, covering the same lands comprising plaintiff's agricultural lease. Defendant Rake was the pumper on the Bingham lease. A jury trial resulted in a verdict *753 for plaintiff against the defendants Bingham and Collins only, and they have duly appealed. Plaintiff did not appeal from the verdict and judgment in favor of Rake.
This suit was originally brought in the District Court of Osage County against Bingham and Collins, who live in Tulsa County. Summons was returned "not found", and thereafter an amended petition was filed including Rake as a defendant. Rake also lives in Tulsa County, but was working in Osage County at the time of filing, and was personally served with summons there. Another summons was then issued for Bingham and Collins, and they were served in Tulsa County.
In their brief, defendants present several alleged errors in the court below; two of these we deem controlling in this case, and we will therefore consider them together and disregard the others.
In this case, the first pleadings filed by defendants were identical ordinary motions to quash service of summons. These motions were inadvertently overruled in the absence of attorneys for defendant, and, according to the briefs, contrary to the rules (observed though not written) of the district court. Thereafter the court, upon oral suggestion of defendants' counsel, entered an order vacating the order overruling such motions, and defendants, Bingham and Collins, then filed identical amendments to their motions, expanding and explaining them, and raising the question of the jurisdiction of the court over the respective defendants. No non-jurisdictional matters were pleaded. It is elementary that the court's vacation of the prior order in term time was within his sound discretion, and that pleadings are to be liberally construed with a view to substantial justice between the parties, 12 Ohio St. 1951 § 293. We take the view, then, that the first pleadings filed by defendants, as amended, raised the jurisdictional question, and when they were overruled, proper exceptions were saved.
The substance of defendants' two propositions above referred to is that when the jury returned a verdict in favor of the resident defendant, under the facts in this case the court erred in proceeding to pronounce judgment for plaintiff upon the verdict against the two non-resident defendants.
It is well settled law that a suit against two or more joint tort-feasors may be prosecuted in any county in which service may be had on any one of them, and that the others may be joined; this is obviously the theory under which plaintiff was proceeding in this case. Here the non-resident defendants objected to the court's jurisdiction, their objections were overruled, exceptions were properly saved, and they then proceeded to the defense of the suit brought against them. A similar situation existed in Fisher v. Fiske, 96 Okl. 36, 219 P. 683, 685. Therein the court said, in the body of the opinion:
"In this case, the sole predicate of the jurisdiction of the district court of Tulsa county was the liability of the defendant Boling; and, when it was determined that Boling was not jointly a tort-feasor as against the plaintiff, the Fishers could not be validly held to individual liability in the Tulsa county tribunal, unless, of course, they may be held to have waived their immunity. This they appear not to have done. They filed a motion challenging the jurisdiction of the court at the very outset of the action. And, under the holdings of this court, their action in defending the suit was merely under protest and without prejudicing their assertion of the lack of jurisdiction of the court. * * *
"We believe, therefore, when the jury found that there existed no liability on the part of Boling, the resident, the court had no authority to enter judgment against the Fishers, the nonresidents, upon any individual liability which it may have determined they bore to the plaintiff."
It is apparent that the above rule is not applicable in situations where the non-resident defendants have waived their objections to the jurisdiction of the court. Plaintiff herein argues vigorously that the non-resident defendants herein did so waive their objections for several reasons.
*754 The first reason assigned is that the motion to quash was not entitled "special appearance" and therefore constituted a general appearance. In support of this argument, plaintiff cites Drennan v. Warburton, 33 Okl. 561, 122 P. 179, 180, to the effect that "an appearance, in order to be special, must be shown to be such by a proper designation and entitlement." While it is true that this ruling has never specifically been overruled, much later decisions of this court follow the more liberal rule that the substance, instead of the form, of a pleading will control in its construction. See Jameson v. Harvel, 139 Okl. 39, 280 P. 1080, 1081, wherein the court said:
"Whether an appearance is general or special does not depend upon the form of a pleading, but upon its substance."
See also Danzinger v. George W. Ralls Co., 144 Okl. 1, 288 P. 975; Thomas v. Dawson, 189 Okl. 193, 115 P.2d 136; Gardner v. Incorporated City of McAlester, 198 Okl. 547, 179 P.2d 894; and 3 Am.Jur. Appearances, sec. 4.
Plaintiff also argues that the separate motions to quash as amended invoked the judgment of the court and therefore were general appearances. He says that each such motion challenged the sufficiency of the petition to (1) state a cause of action against the resident defendant, (2) state a joint cause of action against the defendants, and (3) state a joint cause of action by alleging that each defendant was sued severally. It is evident that if any one of these allegations was true that is, if no cause of action was pleaded against the resident defendant, or if no joint cause of action was pleaded at all under well established principles of law in this state, the court did not have jurisdiction over the non-resident defendants. The argument is therefore patently without merit because each motion was in essence an attack on the jurisdiction of the court and not an attack upon the sufficiency of the petition so as to constitute general appearance. Also each motion, as amended, by its own terms was stated to be an attack on the court's jurisdiction.
Plaintiff next argues that by filing motions to dismiss, to strike, and to make more definite and certain, defendants submitted to the jurisdiction of the court by asking for affirmative relief and therefore waived their objection. But by the terms of the court's ruling in Fisher v. Fiske, supra, "* * * under the holdings of this court, their action in defending the suit was merely under protest and without prejudicing their assertion of the lack of jurisdiction of the court." Also, this court has held contrary to plaintiff's contention in a substantially similar situation in Kansas, O. & G.R. Co. v. Smith, 190 Okl. 103, 125 P.2d 180, wherein it was said:
"Where a defendant files a special appearance objecting to the service of summons, and raises no other question therein, and the objection is overruled and exceptions are saved, he does not lose the right to have the overruling of his objections reviewed on appeal by afterwards pleading to the merits, going to trial, and upon adverse verdict, presenting motion for new trial wherein the jurisdictional and non-jurisdictional matters are united or by contesting plaintiff's claim on the merits, nor does he lose such right by resisting plaintiff's claim on the merits again, after successful motion for new trial on the first verdict, uniting jurisdictional and non-jurisdictional matters in a motion for new trial on second adverse verdict."
In the body of the opinion from which the above syllabus is taken, the court said:
"The courts are divided with respect to the effect of demurrers, motions or pleading to the merits after special appearance objecting to the jurisdiction of the court over the person of the defendant has been made and the objection has been overruled. * * *
"Oklahoma is included in the jurisdictions which hold that a defendant does not lose the benefit of his special appearance and attack on the jurisdiction *755 by demurrer, or answer by pleading to the merits and going to trial after his objection to the jurisdiction has been overruled, if proper exceptions are saved."
In the above case, as in the case at hand, defendant filed various motions, including motion to strike and motion for new trial.
We therefore hold that defendants herein did not waive their objection to the jurisdiction by filing the motions referred to.
That this should be the rule, is apparent when it is considered that defendants herein had a perfect right, if not a duty, to proceed to their own defense when the objection to the jurisdiction was overruled. It is elementary that any defendant has a right to have redundant or immaterial matter stricken from a petition, to have an indefinite petition made more definite and certain, and to move for a dismissal if the facts and pleadings warrant such motion. We believe these are essentially defensive matters and should not be held to constitute motions for "affirmative relief" in the sense that a request for affirmative relief constitutes a general appearance waiving all objections to the court's jurisdiction, especially where the pleadings as a whole reveal an intent to preserve such objections.
The pertinent facts in this case, then, are as follows: plaintiff sued one resident and two non-resident defendants; the non-resident defendants properly objected to the jurisdiction of the court over their persons, their objections were overruled and exceptions were properly saved; they thereafter filed certain motions under circumstances not amounting to a general appearance and proceeded to their own defense, saving their objections to the jurisdiction in their separate answers; the jury found for the resident defendant and against the non-resident defendants, who immediately objected to the pronouncement and filing of judgment against them for the reason that the jury had exonerated the resident defendant; their objections were overruled and judgment pronounced accordingly; plaintiff did not appeal from the judgment in favor of the resident defendant, which has become final, and the non-resident defendants did appeal from the judgment against them.
The finding of the jury in favor of the resident defendant herein affirmatively established the fact that no cause of action existed as against him; therefore, no joint cause of action existed as to the resident and non-resident defendants, and they were not joint tort-feasors. Such being the case, the following rule from Fisher v. Fiske, supra, applies:
"* * * But, in order to give the court jurisdiction over joint defendants who are non-residents of the county where the suit is brought, and for whom summons have been issued to another county, the averments of the petition and the proof on the trial must show that the plaintiff has a valid joint cause of action against the resident defendants, on whom valid service is had, as well as against the non-resident defendants." (Emphasis supplied.)
The judgment of the trial court is therefore reversed and this cause is remanded, with directions to dismiss the action as to the non-resident defendants.
HALLEY, C.J., and WELCH, ARNOLD and BLACKBIRD, JJ., concur.
DAVISON, J., concurs in result.
JOHNSON, V.C.J., and CORN and O'NEAL, JJ., dissent.
DAVISON, Justice (specially concurring).
Although I concur in the result reached by the majority of the court in the opinion adopted in the above styled and numbered cause, and, although I am not in disagreement with the general line of reasoning therein, I am firmly of the opinion that the trial court had no jurisdiction over the nonresident defendants, ab initio. I think the motion of the defendants to quash issuance and service of summons, based upon jurisdictional grounds, should have been sustained prior to trial, and, for that reason, I feel that I should give the reasons for that conclusion.
*756 Succinctly stated, the facts are that the plaintiff, Emmett O. Williams, by his petition, alleged that the defendants, Bingham and Collins, were oil and gas lessees of adjoining tracts of land from which oil was being produced; that defendant Rake was the pumper and immediately in charge of the lease; that plaintiff had suffered damage by oil, salt water and other deleterious substances being allowed to flow over his lands in violation of 52 Ohio St. 1951, § 296. It was further alleged that it was the duty of each of the three defendants to prevent the escape of said substances. The action was filed in Osage County, wherein Rake was served with summons. Bingham and Collins were served in Tulsa county, the county of their residence. Therefore, if the amended petition did not state a cause of action against Rake, the venue was in the county where service of summons was had on the other defendants, and the Osage county court had no jurisdiction over the subject matter or the defendants. In my opinion, no such cause of action was stated.
In the recent case of Summers v. Williams, 206 Okl. 164, 242 P.2d 139, a petition, essentially the same as the one here, was held not to state a cause of action against the pumper. It was there said:
"* * * It is not alleged that he was responsible for the small size of the pits into which the salt water was run or that he had any responsibility or duties whatever in connection therewith, except to pump the salt water from the wells into the pits. * * *"
There being no reason therefor in the reported case, the underlying reasons for the conclusion were not discussed in detail. I think they should be here pointed out. Whenever the question has been presented, this court has uniformly held that the duty imposed by 52 Ohio St. 1951 § 296, is upon the lessee or owner of the oil and gas wells and is non-delegable. Indian Territory Illuminating Oil Co. v. Graham, 174 Okl. 438, 50 P.2d 722. It was further held in the last cited case, that, where the master and servant are both sued, the master is liable because of failure to discharge a duty placed upon him by the statute and not by reason of the doctrine of respondeat superior. That holding was in harmony with, and founded upon, the opinion in the case of Texas Company v. Alred, 167 Okl. 128, 28 P.2d 556. To the same effect is the opinion in the case of Texas Company v. Taylor, 178 Okl. 21, 61 P.2d 574.
In no case, however, have we been presented with the proposition of what facts are necessary to be alleged and proved to fix a liability upon the servant or employee of the oil well owner, because of the provisions of the statute. In each of the reported cases, the verdict of the jury has been in favor of the employee and the judgment thereon as to his liability was not appealed from. The closest approach to the question was in the case of Franklin Drilling Company v. Jackson, 202 Okl. 687, 217 P.2d 816, 819, 19 A.L.R. 2d 1015. In that case, it was held that where an independent drilling contractor was employed by the lessee to drill the well, both the lessee and the contractor were liable for a violation of the statute. The contractor was held liable because he had charge of the operations. In other words, he could choose the tools, the equipment and the method used in obtaining the result contracted for. An employee, in the position of Rake in the case at bar, has no choice as to either tools, equipment or method. In order to state a cause of action against a mere employee of a lessee for violation of the statute, it is necessary to state facts sufficient to impose a duty upon such employee personally to prevent the escape of the deleterious substances.
The primary duty is by the statute placed upon the lessee or owner of the well who cannot delegate that duty to an employee. Therefore, the employee of the well owner does not share that duty, merely because of the employment, any more than the employer is responsible by reason of the theory of respondeat superior. The statutory duty, a violation of which is negligence per se, has no connection with negligence generally for there is liability "for the damages resulting from such violation of the statute without proof of specific acts of negligence." Franklin Drilling Co. v. Jackson, supra.
*757 In the case at bar, the amended petition contained no allegation of facts which placed the duty, imposed by the statute, upon the employee, Rake, individually. For that reason it did not state a cause of action against him. It follows that the venue of the cause of action against the other defendants was in the county where service of summons could be had on them or either of them. That being Tulsa county, the District Court of Osage County had no jurisdiction over them. I, therefore, think that the trial court should have sustained the defendants' motion to quash when the question of jurisdiction was first raised. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343832/ | 264 P.2d 685 (1953)
Ex parte SEYFRIED.
No. 8003.
Supreme Court of Idaho.
December 9, 1953.
*686 Vernon K. Smith, Boise, for appellant.
Robert E. Smylie, Atty. Gen. of Idaho, Edward J. Aschenbrener, Asst. Atty. Gen., Blaine F. Evans, Prosecuting Atty., Ada County, and J. Charles Blanton, Dep. Prosecuting Atty., Boise, for respondent.
KEETON, Justice.
Petitioner was charged in a criminal complaint filed in the Probate Court of Ada County with the crime of burglary, allegedly committed in the nighttime. A preliminary examination was had and petitioner was held to answer. Petitioner was committed to the sheriff in default of bail, and sought his release on the ground that there was no evidence introduced in said preliminary examination which proved, or even tended to prove, that petitioner entered the dwelling he was charged with burglariously entering with the intent to commit larceny or any felony. On a trial in the district court the learned trial judge quashed the writ and remanded petitioner to the custody of the sheriff. Petitioner appealed.
At the preliminary examination the following facts, among others, were shown: On the evening of March 10, 1953, the sheriff of Ada County and some of the Boise police stationed themselves in or near the home of Fritz Bock. They were there at the request of said owner who had noticed someone had been "casing" the place. Bock and family were not at home. About 8:15 p. m. a car stopped in front of the Bock home, and two men got out of the car and approached the house. One of them knocked on the door and rang the bell, and shouted: "Is anyone home?" Someone, presumably petitioner, pried open a locked window and entered the darkened house. This person proceeded to the back door with the aid of a flashlight, opened the door and two men came back through the house, one carrying a flashlight. One of the officers stationed in the house turned on the lights and arrested the petitioner inside the residence. Petitioner was wearing cloth gloves and carried a screwdriver and flashlight. He stated to the officers: "I have cased this house at least thirty-five times", and further stated he should have suspected something was wrong, as a light that was usually left burning was turned off. One of the officers told petitioner: "There was no safe there". Petitioner replied he was not looking for a safe and made no explanation of his forcible entry. Under these facts he was held to answer for entering a dwelling house in the nighttime with intent to commit larceny.
Appellant in his brief submits the following proposition for determination:
"At a preliminary hearing must there be actual positive proof of the corpus delicti of an offense itself before an accused may be held for trial in the district court?"
*687 Where a dwelling house is broken and entered in the nighttime and no lawful motive or purpose is shown or appears, or any satisfactory or reasonable explanation given for such breaking and entering, the presumption arises that the breaking and entering were accomplished with the intent to commit larceny. The fact that the officers were present and apprehended the burglar before he had an opportunity to carry his purpose into execution is of no importance. The crime of burglary was consummated when the unlawful entry was made with intent to steal or commit some felony therein. Sec. 18-1401, I.C.
The common experiences of mankind raise a strong presumption and inference that such a breaking and entering as is here shown was made with the purpose of committing larceny, no other purpose appearing. It is sufficient to show the essential unlawful intent when the entry was made by circumstantial evidence. Direct evidence of such intent is not required. One's intent may be proved by his acts and conduct, and such is the usual and customary mode of proving intent. The following authorities, among others, support the conclusion reached. 9 Am. Jur. 271, § 61; 9 C.J. 1078, § 138; 12 C.J.S., Burglary, § 48, page 719; State v. Woodruff, 208 Iowa 236, 225 N.W. 254; People v. Les, 267 Mich. 648, 255 N.W. 407; Steadman v. State, 81 Ga. 736, 8 S.E. 420; Moseley v. State, 92 Miss. 250, 45 So. 833; People v. Soto, 53 Cal. 415; Cady v. U. S., 54 App.D.C. 10, 293 F. 829. No authority holding otherwise has been called to our attention.
Under the provisions of Sec. 19-815, I.C. we conclude there was sufficient cause to believe the appellant guilty of the crime with which he was charged; that the magistrate was justified in committing him for trial and the order quashing the writ and remanding petitioner is affirmed.
PORTER, C. J., and TAYLOR and THOMAS, JJ., and BAKER, D. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343823/ | 121 Cal. App. 2d 665 (1953)
264 P.2d 60
A.J. MESMER, Respondent,
v.
MARIE WHITE, Appellant.
Docket No. 19663.
Court of Appeals of California, Second District, Division Three.
December 3, 1953.
*666 Byron R. Bentley for Appellant.
Hammack & Hammack for Respondent.
SHINN, P.J.
Plaintiff A.J. Mesmer is the surviving husband of Grace Mesmer, deceased, and defendant Marie White is her sister. Grace died May 17, 1951, leaving a will dated January 7, 1932, in which she bequeathed all her "worldly possessions" to Marie. On May 21, 1951, Mrs. Mesmer's safe deposit box was opened in the presence of a deputy county treasurer, bank officials, Mrs. White, her counsel Mr. Bentley, and Mr. Mesmer. Mr. Bentley made a list of the contents of the box. In the box, but not listed by the deputy county treasurer or Mr. Bentley, was a carbon copy of a letter addressed to Grace Mesmer, dated December 10, 1939, signed "Father," which stated, in part: "Mother and I are inclosing the following stock certificates: Joseph *667 Mesmer Company, Cert. #70, Class B. Preferred, 6 Shares; Joseph Mesmer Company, Cert. #75, Class B. Preferred, 7 Shares. We intended to give you these stocks at Christmas time, but the transfer was delayed...." Joseph Mesmer, now deceased, was plaintiff's father. The described certificates were in the possession of plaintiff. In the box was a note for $3,000, payable to Grace Mesmer, signed by Joseph Mesmer Company. At that time there was standing in the name of Grace Mesmer a residence at 5505 Ocean Front, Playa del Rey, California, which residence was fully furnished, and she also owned several pieces of jewelry. Several conversations took place between plaintiff and defendant with respect to the disposition of the property of the estate of Grace. These resulted in the preparation by Mr. Bentley, acting for defendant, of a proposed agreement between the parties which was signed by Mrs. White and forwarded to Mr. Mesmer's attorney. This writing did not mention any interest of Grace Mesmer in the Joseph Mesmer Company, but it provided: "/s/ id A.J. Mesmer waives and relinquishes any rights to and makes no claim to any property standing in the name of Grace Mesmer and acknowledges the same to have been the separate property of said Grace Mesmer which she was entitled to dispose of by will and which she did leave to said Marie White." Upon receipt of this writing Mr. Hammack, plaintiff's attorney, returned to Mr. Bentley the proposed agreement and wrote him to the effect that it was not in accordance with Mr. Mesmer's understanding with Mrs. White that Mrs. White was to receive the beach property and certain other specified items, and Mr. Mesmer was to receive all interest of Grace Mesmer in and to any other assets, "and particularly any interest in either Joseph Mesmer Company or St. Louis Fire Brick and Insulation Company." Mr. Hammack prepared a revised agreement and sent three copies of the same to Mr. Bentley. Mrs. White signed the agreement and it was returned by Mr. Bentley to Mr. Hammack and thereafter was signed by Mr. Mesmer. The agreement provided in part: "That ... Marie White will make no claims to and receive no portion of any interest of Grace Mesmer in the Joseph Mesmer Company or the St. Louis Fire Brick & Clay Company, or any interest said A.J. Mesmer may have therein, or in and to any assets standing in the name of A.J. Mesmer, and Marie White recognizes and acknowledges that A.J. Mesmer is either the sole owner thereof or else is entitled to have the same distributed *668 to him. Marie White hereby assigns to A.J. Mesmer all interest she or Grace Mesmer may have in the property listed above."
Mrs. White caused the will to be probated and herself to be appointed as administratrix with the will annexed. Shortly after her appointment Mrs. White addressed a letter to Mesmer, stating that she had recently discovered that Grace Mesmer at the time of her death owned stock in the Joseph Mesmer Company. At the trial she testified that she had discovered the above mentioned letter in the safe deposit box and had not previously had any knowledge thereof. In her letter to Mr. Mesmer she gave notice of rescission of the agreement upon the ground that ownership of the stock by Grace Mesmer had been fraudulently concealed by plaintiff. This letter was answered by Mr. Mesmer, refuting the charges of fraud. He then brought this action in declaratory relief for determination of the validity of the agreement. Findings and judgment were in his favor and defendant has appealed.
In her answer defendant alleged that she and plaintiff stood in a confidential relationship, and that before the agreement was entered into plaintiff represented to her that Grace Mesmer owned no property other than the residence in which she lived; that said representation was made fraudulently for the purpose of inducing defendant to agree to a division of the property of said decedent; that defendant relied upon the representation in executing the agreement and gave notice of rescission as soon as she discovered the existence of the certificates of stock in Joseph Mesmer Company. As a separate defense the answer alleged that defendant signed the agreement by reason of a threat of plaintiff that unless she did so he would contest the will of Grace Mesmer. It was also alleged that plaintiff took undue advantage of defendant's trust and confidence and that she signed the agreement under a mistake of fact known to and induced by plaintiff that Grace Mesmer had no interest in Joseph Mesmer Company.
The court found that the parties did not stand in a confidential relationship; that they were dealing at arm's length and that neither of them was trusting the other nor relying on any statement made by the other; that plaintiff did not at any time tell defendant that Grace Mesmer did not own any stock in Joseph Mesmer Company or St. Louis Fire Brick and Insulation Company, and did not at any time make any misrepresentation as to what he or Grace Mesmer owned *669 prior to or at the time of her death; that at no time did defendant or her attorney make any inquiry of plaintiff or his attorney as to what, if any, interest Grace Mesmer had in the Joseph Mesmer Company or St. Louis Fire Brick and Insulation Company; that defendant has been at all times a person of mature years, in good health, intelligent, not of a trusting disposition, and has had experience as a personal representative of another decedent's estate. It was found that defendant did not make a mistake of fact respecting the agreement; that she had declared to plaintiff that she did not claim any interest in and did not want any part of the business, meaning any interest in Joseph Mesmer Company and St. Louis Fire Brick and Insulation Company, and that she signed the agreement with the intention she had previously expressed; that if she acted under a mistake of fact it was due to her neglect of the legal duty to inquire as to the interest of Grace Mesmer in the Joseph Mesmer Company; that although the means of knowledge were open to her and her attorney, neither she nor her attorney inquired into or asked the meaning of Mr. Hammack's letter to Mr. Bentley respecting any interest of Grace Mesmer in the Joseph Mesmer Company, and as to the reasons for the changes made by Mr. Hammack in the terms of the proposed agreement that had been prepared by Mr. Bentley. It was found that defendant negligently failed to make a reasonable inquiry, or any inquiry at all, with respect to the holding of any stock by Grace Mesmer in either of said corporations. It was found that subsequent to the execution of the agreement plaintiff changed his position in that, among other things, he permitted the will of Grace Mesmer to be probated; and that he surrendered possession of the house which defendant received under the agreement, and could not be placed in his former position; that defendant did not offer to restore any of the benefits received by her under the agreement. It was found that defendant did not act under duress. Conclusions of law were made which were appropriate to the facts found, directing judgment that plaintiff was the owner of the stock in question.
As previously stated, the court found that the parties did not stand in a confidential relationship, and that they were dealing at arm's length. Defendant does not question the sufficiency of the evidence to support this finding, but she nevertheless argues that plaintiff had a special duty to make *670 full disclosure because of the existence of a confidential relationship. The trial court said, in its memorandum opinion: "A dispute arose between them almost immediately, and both sought the assistance of separate counsel, they dealt at arms length, and were represented by their own attorneys during all of the negotiations, and the preparation and execution of the contract."
[1] There was no trustee relationship between the parties as a matter of law. It was a question of fact whether a confidential relationship existed. It was a reasonable deduction from the evidence that defendant did not repose trust and confidence in plaintiff. The finding is therefore conclusive on appeal. (Silver v. Shemanski, 89 Cal. App. 2d 520, 547 [201 P.2d 418]; Adams v. Talbott, 61 Cal. App. 2d 315, 320 [142 P.2d 775]; Wilson v. Sampson, 91 Cal. App. 2d 453, 460 [205 P.2d 753]; Laherty v. Connell, 64 Cal. App. 2d 355 [148 P.2d 895].) Plaintiff therefore had no special duty by reason of the relationship of the parties to disclose any facts concerning Grace's interest in stock in Joseph Mesmer Company.
[2] It is next contended that plaintiff made a partial disclosure of the facts relative to the property owned by Grace, and having done so was guilty of fraud in failing to disclose all the facts that were known to him. The court found that defendant or her attorney made no inquiry as to what interest Grace Mesmer had in either of the two corporations, and that defendant asked only if Joseph Mesmer Company was a stock company. There was evidence that defendant made no inquiry whatever as to the property owned by Grace Mesmer, and that plaintiff made no representation respecting the same, nor any statement which purported to disclose the facts with respect to any property which was owned by Grace Mesmer. Although defendant testified that plaintiff stated to her that Grace Mesmer owned nothing, plaintiff testified that he made no such statement. The court believed him. Moreover, the court found that defendant did not rely upon any statement of plaintiff, and in its memorandum opinion called attention to the testimony of defendant that plaintiff stated to her that Grace Mesmer did not own any separate property, but that she did not believe him. It therefore appears that no facts were established to the satisfaction of the court which would render applicable the rule that one who undertakes to make a disclosure of material facts and discloses some of them is under a duty to disclose the remainder. Both plaintiff and defendant *671 testified that defendant voluntarily stated that she did not want to interfere in the business or with anything that plaintiff and Grace had at the plant, and that she did not want any part of the business. The court found that when she made the statement that she did not claim any interest in the "plant" or the "business" she intended to disclaim all interest in Joseph Mesmer Company and St. Louis Fire Brick and Insulation Company. It would seem that the trial court would have been justified in regarding this disclaimer of defendant as an important fact in determining whether plaintiff had a duty to disclose Grace's ownership of stock in Joseph Mesmer Company, and in determining whether defendant expected plaintiff to state the facts with reference to said stock or believed that he had done so. Defendant's statement could have been understood as implying that she was not interested in learning whether Grace Mesmer had any interest in the business or the extent of any interest she might have. If it was so understood by plaintiff he could scarcely have been found guilty of a breach of duty in refraining from volunteering information on the subject.
Defendant cites the rule that plaintiff's failure to disclose the ownership of the stock was actionable fraud in view of his superior knowledge of the facts. We have seen that plaintiff was under no duty to make such a disclosure, and if he had no duty it is immaterial with respect to the charge of fraud that he had knowledge of facts that were unknown to defendant. The findings acquit plaintiff of the charge of fraud. [3] Misstatement or suppression of facts is not fraudulent unless motivated by an intent to deceive or to induce another to enter into a contract (Civ. Code, § 1572), or unless it amounts to a breach of duty (§ 1573). The question of actual fraud is always one of fact. (Civ. Code, § 1574.) The finding against the charge of fraud may not be disturbed.
The court found that in entering into the agreement defendant did not act under a mistake of fact, but that she acted with the intention previously expressed in her statement that she claimed or wanted no interest in plaintiff's business. The court did not make any finding as to whether defendant had knowledge of the ownership of the stock at the time she entered into the agreement, although the court made comment in its written opinion that it was a strange circumstance that the letter signed "Father" was not discovered when the contents of the safe deposit box were examined. The court did find, however, that defendant was *672 put on notice that Grace Mesmer may have had an interest in stock in Joseph Mesmer Company by means of the letter written by Mr. Hammack and the changes which he caused to be made in the agreement that had been prepared by Mr. Bentley. These circumstances were of special importance in considering defendant's claim that she entered into the agreement under a mistake of fact. The court found that if defendant was unaware of Grace Mesmer's ownership of the stock her ignorance was due to her inexcusable neglect of the legal duty to inquire as to any interest Grace may have had in the Joseph Mesmer Company.
The agreement as proposed by Mr. Bentley provided, in part: "That the said Marie White will make no claim to and receive no portion of any assets standing in the name of A.J. Mesmer, including the business known as the St. Louis Fire Brick & Insulation Co., a corporation, or any interest said A.J. Mesmer may have herein, and including all other property standing in the name of said A.J. Mesmer, and Marie White recognizes and acknowledges the same to be the separate property of said A.J. Mesmer in which Grace Mesmer had no interest." This portion of the agreement was rewritten by Mr. Hammack to read: "That the said Marie White will make no claims to and receive no portion of any interest of Grace Mesmer in the Joseph Mesmer Company or the St. Louis Fire Brick & Insulation Co., or any interest said A.J. Mesmer may have therein, or in and to any assets standing in the name of A.J. Mesmer, and Marie White recognizes and acknowledges that A.J. Mesmer is either the sole owner thereof or else is entitled to have the same distributed to him. Marie White hereby assigns to A.J. Mesmer all interest she or Grace Mesmer may have in the property listed above." (Emphasis added.) The Bentley draft provided: "[s]aid A.J. Mesmer waives and relinquishes any rights to and makes no claim to any property standing in the name of Grace Mesmer." As rewritten by Mr. Hammack this portion of the agreement stated: "The said A.J. Mesmer waives and relinquishes any rights to and makes no claim to any interest in the property hereinafter described." (Emphasis added.) The Bentley draft continued: "[a]nd acknowledges the same to have been the separate property of said Grace Mesmer which she was entitled to dispose of by Will and which she did leave to said Marie White," which portion was rewritten to read: "[a]nd acknowledges that the said Grace Mesmer was entitled to dispose of by Will and that she did leave the *673 same to said Marie White by the Will hereinabove referred to." Mr. Hammack's letter stated, in part, that Mr. Mesmer was entitled to receive "all interest of Grace Mesmer in and to any other assets, and particularly any interest in either Joseph Mesmer Company or St. Louis Fire Brick & Insulation Company." Mr. Mesmer's position was clearly and frankly stated by Mr. Hammack, who emphasized that Mesmer particularly claimed any interest Grace had in the two corporations. It would seem clear that Mr. Hammack understood that Mrs. White had disclaimed any interest in plaintiff's business of which the stock was considered to be a part, and that he was seeking to have the understanding of the parties expressed in writing to avoid any future misunderstanding. And we think it could reasonably have been inferred that Mrs. White did not intend to claim any interest in Joseph Mesmer Company, and was not curious to know what Grace Mesmer's interest may have been at the time she executed the agreement, but developed an interest only when she discovered the number of shares owned by Grace Mesmer and the value thereof. She says in her brief: "The fact that the assets of the Mesmer Company was known to her to have come from Mr. Mesmer's family reasonably caused her to assume that any interest of Grace in them would not be significant, because they would be inherited by him. No reasonable person could have anticipated such a Christmas gift as was later found to exist." [4] The court was fully warranted in finding that defendant was put on notice by Mr. Hammack's letter and the revised agreement that Grace Mesmer probably had some interest in the business or its assets. We do not see how it could have been assumed that the changes Mr. Hammack made in the agreement were without a definite purpose, or that they did not add provisions which would be of material advantage to Mr. Mesmer. The court found that defendant was guilty of neglect of a legal duty in failing to make reasonable inquiry, or any inquiry, with respect to Grace's ownership of stock to which the Hammack letter and the redrafted agreement called attention. This was, in effect, a finding that defendant had notice of facts sufficient to put her on inquiry as to Grace's ownership of stock in Joseph Mesmer Company. In Sime v. Malouf, 95 Cal. App. 2d 82, 104 [212 P.2d 946, 213 P.2d 788], where the plaintiff claimed fraudulent concealment of material facts, it was said that "As to the claim of constructive knowledge, *674 the issue was whether plaintiff had notice of facts sufficient to put a prudent man upon inquiry and if so, whether an inquiry, reasonably conducted, would have disclosed to him the true state of affairs. This question, of course, was one of fact for the trial court. (Northwestern P.C. Co. v. Atlantic P.C. Co., 174 Cal. 308, 312 [163 P. 47]; Taylor v. Wright, 69 Cal. App. 2d 371, 384 [159 P.2d 980].) The finding that plaintiff had no such notice, if based upon conflicting evidence or reasonable inferences from the evidence, may not be disturbed by this court." (See, also, West v. Great Western Power Co., 36 Cal. App. 2d 403, 411 [97 P.2d 1014]; 20 Cal.Jur. 240, § 8.)
Defendant had actual knowledge that plaintiff was claiming, and expected to retain, any interest Grace had in the two corporations. The truth was not susceptible of concealment had diligent inquiry been made. The information which defendant possessed was clearly sufficient to charge her with the knowledge she would have gained had she made such inquiry.
[5] Courts of equity will not encourage the cancellation or revocation of instruments on the ground of mistake where they appear to have been executed by the complainant without the exercise of reasonable care. Section 1577 of the Civil Code states the law with reference to mistakes of fact. It limits the mistakes for which relief may be granted to those that are not caused by the neglect of a legal duty. The cases uniformly apply this rule. (Taylor v. Taylor, 66 Cal. App. 2d 390, 398 [152 P.2d 480]; Fraters G. & P. Co. v. Southwestern Const. Co., 107 Cal. App. 1, 5, 6 [290 P. 45]; Roller v. California Pacific Title Ins. Co., 92 Cal. App. 2d 149, 153 [206 P.2d 694].)
[6] It is further contended by defendant that her agreement with plaintiff was no more than the release of a claim, and that under sections 1541 and 1542 of the Civil Code it did not extend to the stock in question. These sections read: (§ 1541) "An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration." (§ 1542): "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." No authority is cited for the proposition and we consider it to be without merit. The transaction was *675 not one between debtor and creditor, nor was the agreement a mere release of a debt.
There was a finding that after the agreement was made plaintiff altered his position by reason thereof, could not be placed in the position he was in before the agreement was entered into, and, as a conclusion, that it would be inequitable to decree a rescission. It is unnecessary to discuss defendant's contention that this finding lacks support in the evidence.
The order denying motion for a new trial being nonappealable, the purported appeal therefrom is dismissed; the judgment is affirmed.
Wood (Parker), J., and Vallee, J., concurred.
A petition for a rehearing was denied December 28, 1953, and appellant's petition for a hearing by the Supreme Court was denied January 27, 1954. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4216640/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 303 EAL 2017
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
LAWRENCE COTTMAN, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 31st day of October, 2017, the Petition for Allowance of Appeal
is DENIED. | 01-03-2023 | 10-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1343923/ | 175 Kan. 398 (1953)
264 P.2d 479
STATE OF KANSAS, Appellee,
v.
LEE NOBLE, Appellant.
No. 39,070
Supreme Court of Kansas.
Opinion filed December 12, 1953.
C.L. Hoover, Robert A. Schermerhorn, and A.B. Fletcher, Jr., all of Junction City, Kan., were on the brief for the appellant.
Lee Hornbaker, of Junction City, Kan., argued the cause, and Harold Fatzer, attorney general, and William F. Stahl, of Junction City, Kan., were with him on the brief for the appellee.
The opinion of the court was delivered by
THIELE, J.:
Lee Noble was tried on an information charging him with murder in the first degree. He was convicted of manslaughter in the first degree. His motion for a new trial was denied and he *399 was duly sentenced, and in due time perfected his appeal to this court. He specifies error in that the trial court failed to instruct on manslaughter in the second degree and in that the trial court failed to require the bailiff to take and subscribe an oath at the beginning of the trial and an oath after the jury was charged and before the bailiff took charge of the jury as required by G.S. 1949, 20-312 and 62-1448.
We need make only a short review of the evidence and what transpired at the trial in order to discuss the first contention of error.
The evidence discloses that Wieburg, the deceased, and one Stonerock at about 12:30 a.m. on August 17, 1952, went into a tavern owned and operated by defendant Noble. They bought two beers from a waitress Green and drank them in a booth and then went to the counter and ordered six beers to take with them for which Stonerock paid $2.10. Wieburg asked for a receipt from Green who told him all he could have was an oral receipt. Defendant Noble came in, walked behind the counter and asked what was going on and Green informed him. Noble told Wieburg to take the beer and get out. About that time Wieburg said he was a special beer investigator, reached in his billfold and threw a red card on the counter and then picked it up and put it back in his billfold and back in his pocket. During the same time Noble picked up a revolver and told Wieburg and Stonerock to pick up the beer and get out. Noble told Green to pay the money back, she put the money on the counter and put the beer back. Stonerock picked up the money. As Wieburg walked down the counter he said nothing except he wanted the beer. Noble walked down the counter and picked up a club from underneath the cash register and as Wieburg reached the end of the counter Noble struck him over the head with the club felling him to the floor. Noble testifying in his own behalf stated that when Wieburg pulled out the red card all he could see was that it was a red card; that Wieburg said he was from the attorney general's office and that he was a special beer investigator but that when Wieburg threw the card down and picked it up witness realized he was not an officer; that he told Wieburg to leave, got out his revolver, and Stonerock said to Wieburg to come and not to start any trouble and as they walked down the counter Wieburg wanted the beer; that witness could not see Wieburg's right hand and it looked like it was in his pocket and that as Wieburg started around the counter witness hit Wieburg with the *400 "stick" and that when he struck Wieburg he thought Wieburg was going to jump on him. There is no contention that Wieburg did not die as the result of the blow on his head.
After the evidence had been submitted the defendant requested three instructions all pertaining to self-defense and there is no complaint that they were not given in substance. The trial court instructed the jury fully on murder in the first degree, justifiable and excusable homicide, self-defense, murder in the second degree, manslaughter in the first degree as defined by G.S. 1949, 21-407, manslaughter in the third degree as defined by G.S. 1949, 21-413, and manslaughter in the fourth degree as defined by G.S. 1949, 21-419. No objection was made to the instructions as given, nor was there any request for other or further instructions of any kind.
The premise for appellant's argument that the trial court erred in not giving an instruction on manslaughter in the second degree is that our statute, G.S. 1949, 62-1447, requires the trial court in a criminal action to charge the jury respecting all matters necessary for their information in giving their verdict and that it is imperative that in prosecutions for homicide that the jury be charged not only as to the offense charged, here murder in the first degree, but as to all lesser offenses of which the accused might be found guilty under the information and the evidence adduced, and that the rule obtains even though the trial court may deem the evidence supporting the lesser offense to be inconclusive and notwithstanding a request for such instructions had not been made, and State v. Fouts, 169 Kan. 686, 221 P.2d 841 is cited in support. It may be said that that case and others cited therein, as well as others mentioned, support the premise and we shall not discuss it further. As applied to the instant case the question is whether there was any evidence adduced that compelled an instruction on G.S. 1949, 21-412, which reads:
"Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree."
The appellant's contention is that Wieburg was committing an unlawful act; that under our statutes a bureau of investigation under the jurisdiction of the attorney general was established, the members of which possess all powers and duties given to sheriffs (G.S. 1949, 75-711 and 712) and that any person who shall, without authority *401 authority, exercise or attempt to exercise the functions of and hold himself out to any as a deputy sheriff, marshal, policeman, constable or peace officer, shall be deemed guilty of a misdemeanor (G.S. 1949, 21-1617), and that Wieburg, being engaged in the commission of an unlawful act, it was necessary that an instruction be given on manslaughter in the second degree.
Perhaps a sufficient answer can be found in this. The only power conferred on members of the bureau of investigation is that possessed by sheriffs. Under State v. Rose, 96 Kan. 347, 150 Pac. 601, it was held that a person charged with having attempted to exercise the functions of a sheriff without authority cannot be prosecuted under the statute which now appears as G.S. 1949, 21-1617. Appellant cites no other authority that Wieburg was doing any unlawful act and our search discloses none. Under the evidence, there being no unlawful act shown, there was no occasion to instruct on manslaughter in the second degree. Even if it be assumed that Wieburg's act was unlawful it does not follow there was error. Although the precise question does not seem to have been considered, the state directs our attention to the fact that at the time of the decision in State v. Wilson, 242 Mo. 481, 147 S.W. 98, the statute of Missouri on manslaughter in the second degree was the same as our G.S. 1949, 21-412. The facts of that case are materially different than those now before us. It was there held that instruction on that offense ought to be given where there was substantial evidence the defendant was unlawfully assailed under such circumstances as to entitle him to exercise the right of self-defense and he failed to exercise that right while the peril was impending but after it had passed and the attempt upon him had failed, he slew his assailant. The state argues that under our statute, the felony or other unlawful act of the deceased must have been one that entitled the accused to kill in self-defense. Even though the act of the deceased in saying he was an agent of the attorney general be denominated an unlawful act, no one would contend it could be resisted by a killing. In any event there is no evidence of a killing on that account. As applied to the facts in this case we think it must be held the provision as to manslaughter in the second degree had no application. Other reasons asserted by the state as to why there was no error will not be discussed. The trial court did not err in not giving an instruction as to manslaughter in the second degree.
*402 Appellant states his second contention "Did the court err in failing to have the bailiff sworn as required by G.S. 1949, 20-312 and 62-1448?" These statutes read:
"That except where otherwise provided by statute, judges of the district courts of this state may appoint in each county in their judicial districts a bailiff or bailiffs, to hold their office at the pleasure of the judge appointing them. It shall be the duty of such bailiff or bailiffs to perform all acts imposed by law upon bailiffs and deputy sheriffs and to attend upon all sessions of court, to take charge of the jury during the time of its deliberations upon any case tried in said court, to open and close court, and otherwise to perform all duties which may be required of them by the judge of said court. In every case in which a bailiff is placed in charge of a jury during its deliberations, such bailiff shall, before entering upon the discharge of such duty, take and subscribe to an oath to support the constitution of the United States and the constitution of the state of Kansas, to faithfully perform the duties of bailiff of such court in charge of the jury in the case upon trial, to keep such jury together in some safe, convenient and proper place without food except such as the court shall order, and not to permit any person to speak or communicate with such jury in any way, or to do so himself unless ordered by the court, except to inquire if they have agreed upon a verdict, nor communicate to anyone the state of the deliberations of such jury, and to return said jury into court when so ordered by the court." (G.S. 1949, 20-312.)
"After hearing the charge, the jury may either decide in the court, or retire for deliberation. They may retire under the charge of an officer, sworn to keep them together in some private or convenient place, without food except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations." (G.S. 1949, 62-1448.)
A mere reading of the above sections shows the only substantial difference in the two oaths is that part of the first section, dealing with support of the constitutions of the United States and of Kansas, and to faithfully perform the duties of bailiff, is not included in the second.
Under G.S. 1949, 20-1008 terms of court in Geary county commence on the second Monday in November, which in this case was November 10, 1952. There is no dispute that on November 14, 1952, the bailiff took an oath that he would support the constitution of the United States, the constitution of the state of Kansas, and faithfully perform the duties of bailiff of the district court of Geary County, Kansas. According to the journal entry of judgment, trial of the instant case was commenced on December 3 and continued to and including December 5, 1952. On December 3, 1952, and *403 after the trial was commenced the bailiff subscribed to a second oath containing in detail the substance of the provisions contained in G.S. 1949, 62-1448. At the conclusion of the evidence, the jury was instructed but before it retired, the bailiff did not take and subscribe another oath. Appellant and his counsel were present in court but made no objection. In an affidavit submitted on the motion for a new trial, counsel stated that to the best of his recollection he was conferring with appellant and was not cognizant of anything which may or may not have transpired between the clerk and the bailiff and learned several days after the trial of the failure to swear the bailiff, and that he was not sworn as required by the above statutes. After citing the statutes providing for oaths of bailiffs noted above, he directs our attention to State v. McCormick, 57 Kan. 440, 46 Pac. 777, 57 Am. St. 341, from which he quotes the sixth paragraph of the syllabus and the comment of the court on page 447, which we shall not set forth here. A reading of that opinion will disclose the only oath taken was at the time of the bailiff's original appointment and not during the course of the trial and that it failed to meet the statutory requirements as to substance. A reversal was predicated on other grounds as well as failure to have a proper oath. Appellant also directs our attention to State v. Palmer, 173 Kan. 560, 251 P.2d 225. In that case no oath whatever was taken by the bailiff.
The essence of the appellant's complaint is not that the form or substance of the oaths taken by the bailiff was in any manner short of statutory requirements, but that the first oath was taken before the trial started, and the second was not taken in the interval between the charging of the jury and its retiral for deliberation. There is no contention that the defendant was prejudiced in any other way. We shall not here discuss whether, under G.S. 1949, 20-312, the bailiff must be sworn after and not before the trial has begun, nor whether, under G.S. 1949, 62-1448, the bailiff must be sworn after, and not before the jury is charged, nor whether appellant and his counsel were remiss in not promptly calling the trial court's attention to the matter for even if the instant oaths, fully sufficient in their recitals, were taken prematurely the errors, if any, were technical and did not affect the substantial rights of the appellant. Under G.S. 1949, 62-1718 we are admonished to give judgment without regard to technical errors, and under that admonition we cannot hold there was any prejudicial error.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/480096/ | 806 F.2d 260
*U.S.v.Clark
86-1345
United States Court of Appeals,Fifth Circuit.
11/20/86
1
W.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1343929/ | 168 Ga. App. 409 (1983)
309 S.E.2d 405
TIMS
v.
THE STATE.
66629.
Court of Appeals of Georgia.
Decided October 14, 1983.
*413 John L. Kimmey III, William L. Auld, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, Assistant District Attorneys, for appellee.
McMURRAY, Presiding Judge.
Defendant was convicted of the offenses of kidnapping and armed robbery committed in Fulton County, Georgia. His motion for new trial was denied, and he appeals.
This case rests basically upon the eyewitness identification by the victim. The defendant claims that the victim was mistaken about her assailant's identity and presented witnesses to support his contention. However, the state presented to the jury both the defendant and the man whom defendant claims to be the perpetrator. The victim was then asked to tell the jury which of these two men kidnapped, robbed and sodomized her. The victim, stating that there was no doubt in her mind, picked the defendant. The jury believed the victim and convicted defendant of kidnapping and armed robbery. Held:
1. In Enumeration 1 defendant contends that the verdict of the jury was contrary to the evidence, against the weight of the evidence and without evidence to support it. Thus, the issue before this court is whether the evidence was sufficient to sustain the jury's verdict. As to this issue, we answer in the affirmative. As such, Enumeration 1 is without merit.
In the late evening hours of February 27, 1982, and early morning hours of February 28, 1982, the victim and her boyfriend drove to an apartment complex on North Highland to obtain Dilaudid (a drug used by the victim's boyfriend). The victim, using her father's automobile, was driving because her boyfriend's license had been suspended. At the North Highland Apartments the boyfriend *410 and the victim met one L. D. Carter. The victim's boyfriend asked Mr. Carter if he had a syringe that he could use to inject the Dilaudid. The victim and her boyfriend followed Mr. Carter to "Cabbagetown" to get a syringe for the boyfriend to use. When they arrived in "Cabbagetown," they stopped in front of a house, located at 624 McDonald Street, and the boyfriend and Mr. Carter went inside. While the boyfriend was inside the house, Mr. Carter came up to the victim's automobile. He opened the passenger door to her automobile and began talking to the victim. At about this time another man with a pistol came up to her automobile and pointed the pistol at the victim. He pushed Mr. Carter away from the automobile and got in on the passenger's side. The victim was then ordered to drive. While driving, the perpetrator told the victim to take off her rings, earrings, and necklaces and then directed her to a cemetery in adjoining DeKalb County, Georgia. When they arrived at a certain section of the cemetery, the perpetrator ordered the victim to stop the automobile and to turn off the lights and motor. The perpetrator then opened the door so that the dome light would come on and went through the victim's purse. With the dome light on, the victim saw the perpetrator's face for the first time. The victim looked at the perpetrator's face for about one or two minutes. The perpetrator then took the victim out of the automobile and when she screamed, he cocked the gun and put the barrel in her mouth. At that time, she again saw the perpetrator's face. The perpetrator made the victim take off her clothes and then forced her to perform "oral sex" with him. Afterwards, the perpetrator drove the victim's automobile out of the cemetery and stopped on a street not too far from where they had started. The perpetrator then got out of the automobile and stood beside it with the door open. The victim looked at the perpetrator's face again at this time. Thereafter, the victim was released, contacted her boyfriend's father, who in turn, contacted the police.
The next morning the victim rode with an Atlanta detective to 624 McDonald Street. As the detective drove past a group of five or six men standing on the street corner, the victim recognized the perpetrator of the above crimes and later identified him as the defendant.
From the above factual scenario, as testified to by the victim, it is clear that her testimony was sufficient to sustain the jury's verdict. The victim had on several occasions observed the face of the man who assaulted her. She rejected, as being her assailant, the man who defendant claims is the perpetrator. The victim further positively identified the defendant as the one who kidnapped, robbed, and sodomized her, adding that there was no doubt in her mind. Thus, the *411 evidence amply supports the verdict. Edwards v. State, 153 Ga. App. 361 (1) (265 SE2d 322); Code v. State, 239 Ga. 644 (1) (238 SE2d 430). Viewing the evidence adduced at trial in a light most favorable to the verdict, we find that the evidence was sufficient to enable any rational trier of fact to reasonably find the defendant guilty of the offenses of armed robbery and kidnapping beyond a reasonable doubt. See Mullis v. State, 248 Ga. 338 (1) (282 SE2d 334); Murray v. State, 152 Ga. App. 871 (264 SE2d 337).
2. In Enumeration 2 defendant contends the trial court erred in overruling his motion for new trial based upon newly discovered evidence. This enumeration of error is without merit.
The standard for granting a new trial on the basis of newly discovered evidence is well established. "` "(I)t is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness." (Cit.)' Bell v. State, 227 Ga. 800, 805 (183 SE2d 357) (1971)." Jefferson v. State, 157 Ga. App. 324, 325 (1) (277 SE2d 317). Failure to show any one requirement is sufficient to deny a motion for new trial. Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792); Offutt v. State, 238 Ga. 454, 455 (233 SE2d 191). Furthermore, "`[m]otions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused.' Van Scoik v. State, 142 Ga. App. 341 (235 SE2d 765)." Lord v. State, 156 Ga. App. 492, 493 (1) (274 SE2d 641). We find no abuse of discretion. Four witnesses testified before the court at the motion for new trial hearing. However, after examining the transcript of that hearing, it is apparent that the additional evidence did not satisfy all six criteria as set out in Jefferson v. State, 157 Ga. App. 324, 325 (1), supra.
The first witness testified to a telephone conversation with the person whom defendant claims committed the crimes for which defendant was convicted. However, the witness testified that defendant's trial counsel had told her prior to trial that her testimony would not be any good. Thus, defendant's trial counsel made a conscious choice not to use her testimony and as such, requisites (1) and (2) as set out in Jefferson v. State, 157 Ga. App. 324, supra, were not met. Furthermore, the witness' testimony about the alleged *412 telephone conversation is not admissible evidence: it is inadmissible hearsay. Declarations to third persons against the declarant's penal interest, to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused at his trial, or to procure a new trial on the basis of newly discovered evidence. Timberlake v. State, 246 Ga. 488, 492 (1), supra. See also Lyon v. State, 22 Ga. 399 (1); Johnson v. State, 188 Ga. 662 (1) (4 SE2d 813); Bryant v. State, 197 Ga. 641, 642 (9) (30 SE2d 259); Herrin v. State, 230 Ga. 476, 478 (197 SE2d 734). The reasoning is that if such admissions were allowed as evidence upon the trial of the accused, a person could subvert the ends of justice by admitting the crime to others and then absenting himself.
The second witness testified to the identity of the man who got into the automobile with the victim. This testimony does not qualify as newly discovered evidence. The defendant's own witness was present at the "Cabbagetown" house at the time of the abduction. At trial, this witness named the persons who were at the "Cabbagetown" house, including the alleged newly discovered witness. Thus, trial counsel, through his own witness, had access to the persons present at the "Cabbagetown" house on February 27th and 28th and could have subpoenaed these witnesses. There is no showing of due diligence here, and no showing that the witnesses presented at the motion for new trial hearing could not have been found at the time of the trial. Depree v. State, 246 Ga. 240, 244 (6) (271 SE2d 155); Thomas v. State, 240 Ga. 454, 456-457 (2) (241 SE2d 204); Boatright v. State, 155 Ga. App. 109 (270 SE2d 321).
The third and fourth witnesses (defendant's wife and mother) gave alibis for the defendant. However, evidence that someone else might have committed the crime, which does not dispute the identification at trial, is insufficient. Bailey v. State, 150 Ga. App. 211 (1), 212 (257 SE2d 334); Curry v. State, 155 Ga. App. 829, 832-833 (8) (273 SE2d 411); Lord v. State, 156 Ga. App. 492, 493 (1), supra; Carter v. State, 246 Ga. 328 (271 SE2d 475). Further, the testimony here would be merely cumulative in that it goes to the issue of alibi and mistaken identity, and would only serve to impeach the credibility of the victim insofar as her positive identification of the defendant in the trial in which he was convicted is concerned. Van Scoik v. State, 142 Ga. App. 341, supra. This enumeration is not meritorious.
3. In the remaining enumeration of error defendant contends the trial court erred in denying his motion for bond pending appeal. Since we have affirmed defendant's conviction, this enumeration is now moot and need not be addressed.
Judgment affirmed. Shulman, C. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343930/ | 121 Cal.App.2d 707 (1953)
GENEVA L. MORRIS, Appellant,
v.
THOMAS G. MORRIS, Respondent.
Civ. No. 19725.
California Court of Appeals. Second Dist., Div. Three.
Dec. 4, 1953.
Harry Albert for Appellant.
Louis J. Hart and Frank J. Hill for Respondent.
SHINN, P. J.
This is an appeal by Geneva L. Shipsey (Morris) from an order denying her application for change of custody of daughters, Susan age 10 1/2, and Sara age 6 1/2, whose custody had been awarded to defendant Thomas G. Morris in 1949 by interlocutory decree of divorce. In the divorce action each had charged the other with cruelty and Thomas had charged Geneva with adultery. Each sought a divorce and custody of the children. At the conclusion of a contested trial in which findings were waived, Thomas was awarded an interlocutory decree and custody of the children; *708 Geneva was given the right to visit the children between the hours of 9 a. m. and 5 p. m. at their home, and also the right to have them with her between the hours aforesaid on two days each week and each alternate Saturday. She was ordered not to permit the children to be in the presence of Edward J. Shipsey. By final decree entered September 21, 1950, the custody provisions of the interlocutory decree were continued in effect. Geneva thereafter married Mr. Shipsey. It was his third marriage. Before awarding custody to the father, the court considered an extensive report of an investigation with respect to the conditions under which the children would live in the custody of each of the parties.
On May 22, 1951, Geneva petitioned for modification of the custody provisions. On September 26, 1951, an investigator's report was filed recommending modification under which Geneva would have custody on alternate weekends from 10 a. m. Saturday to 8 p. m. Sunday, and would also have the children with her during the entire summer vacations and during the Thanksgiving, Christmas and Easter vacations. On September 26, 1951, the parties entered into a stipulation pursuant to which the court made an order of modification which provided that the children would be with their mother on alternate weekends from 10 a. m. Saturday until 8 p. m. Sunday, that each parent would have them for one-half of each summer vacation and upon alternate holidays of Thanksgiving, Christmas and Easter. The provision that the children would not be allowed in the presence of Mr. Shipsey was vacated.
On June 9, 1952, Geneva petitioned for further modification which would allow her to have the daughters with her except when they visited with their father, namely, on alternate weekends and a half of summer vacations, and other vacation periods. A report of an investigator was filed with the same recommendation respecting custody as was contained in the September 26, 1951, report. It was received in evidence under a stipulation that if called as a witness the investigator would testify to the facts contained in the report. As the matter stands now the custody provisions are those the parties agreed upon as the basis of the earlier modification.
[1] The court took evidence of the parties and their witnesses in the latest hearing. There is naturally bitter feeling between the parties and between Mr. Shipsey and Mr. Morris. There was conflicting evidence as to whether it would be in the best interests of the children to live in the Shipsey home *709 and as to certain disadvantages of living with their father. There was evidence that each parent has great affection for the children, has always been solicitous of their welfare and that each would properly perform parental duties in a statisfactory manner. It would serve no good purpose to relate the evidence given at the hearing. The court without objection interviewed the little girls privately and apparently gave serious consideration to their wishes. It would appear also that the children made statements to the court which materially influenced the decision. The children live with their father at Yucaipa and his parents live on the premises in a trailer. The Shipseys live at Silverado, in Orange County, approximately 100 miles from Yucaipa. It is undoubtedly burdensome for them to take the long week end trips to get the girls and to return them. While Mr. Morris is at work the girls are in the care of their grandmother, who is 68 years of age and whose capabilities are not seriously questioned.
It appears to us that the court did not err in continuing in effect the agreement of September 26, 1951, and the order based thereon. While the terms of the agreement fell short of gratifying the conflicting wishes of the parents, they were satisfactory as a compromise of differences which no doubt will exist until the daughters are free from court supervision. It may be inferred that the children are better satisfied with present conditions than they would be if their custody was awarded exclusively to their mother. The fact that they did not wish to be taken from the custody of their father indicated that they were happy in their present home.
There is nothing in the record as to any arrangement for the children to be interviewed by the court, although it is apparent that there was some agreement for it. The court made no statement of what the children had said in the interview. Plaintiff criticizes the practice as one which permitted the court to take evidence that was not known to the parties, or their attorneys No request was made for a statement by the court. Nevertheless we think it would be the part of wisdom for the court to make a record of such interviews with children in custody cases in order to protect itself against any suspicion of unfairness on the part of the parent against whom the decision is rendered.
The children will, of course, be deprived of advantages which they would have enjoyed had their parents not separated, and this will be true as long as they must be shuttled *710 back and forth between their mother and their father. But all a court can do in such circumstances is to give fair recognition to the rights and wishes of the parents, and at the same time make what appears to be the most reasonable provision for the welfare of the children. When, after a full and fair hearing, the court refused to modify the former order, the denial of modification may not be disturbed on appeal in the absence of a showing of an abuse of discretion. (Prouty v. Prouty, 16 Cal.2d 190 [105 P.2d 295].) The court did not abuse its discretion in refusing to award a greater measure of custody to the mother than she has enjoyed under the former modifying order.
The order is affirmed.
Wood (Parker), J., and Vallee, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343995/ | 309 S.E.2d 300 (1983)
IVY CONSTRUCTION COMPANY
v.
Wayne B. BOOTH, d/b/a Bat Masonry Company.
Record No. 810711.
Supreme Court of Virginia.
December 2, 1983.
David Craig Landin, Richmond (John D. Epps; McGuire, Woods & Battle, Richmond, on briefs), for appellant.
J. Michael Gamble, Amherst (Pendleton & Gamble, Amherst, on brief), for appellee.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.
PER CURIAM.
The sole question presented in this mechanic's lien case is whether the record contains credible evidence to support the chancellor's finding as to the terms of the contract between the parties. Finding the evidence sufficient, we affirm.
In 1978, the owners and developers of the Wintergreen ski resort in Nelson County were engaged in the construction of three condominium projects on their property. The projects were known as Highland Oaks, White Oak Phase I, and White Oak Phase II. Ivy Construction Company, the appellant, was general contractor on all three projects. Ivy asked Bat Masonry, the appellee, to bid on the masonry work required for Highland Oaks and White Oak Phase II. White Oak Phase I had previously been subcontracted to another masonry company with which Ivy was "experiencing difficulty."
A letter from Ivy to Bat, dated December 20, 1978, described White Oak Phase II as a project containing twenty-eight units and asked Bat to bid for the work. Unknown to Bat, the owners of Wintergreen decided to cut the project back to sixteen units. They retained an option to increase the project to twenty-eight units by giving Ivy notice of their decision to so increase it by May 1, 1979.
Bat, after conferring with Ivy as to the work required, submitted a bid of $84,500.00 for the masonry work on White Oak Phase II. Ivy accepted the bid and prepared a written contract. The contract contained the figure $84,500.00, but was silent as to the number of units to be built. Both parties signed the contract, and Bat began work. After completing work on sixteen units, Bat ceased operations and demanded final payment.
*301 Wintergreen, in the meantime, exercised its option to build all twenty-eight units, and so advised Ivy. Ivy contended that Bat's contract covered all twenty-eight units and demanded that Bat complete the remaining twelve units. Bat contended that it had contracted for only sixteen units and refused to work on the additional twelve units unless a new contract were made covering twelve more units. Ivy engaged another masonry contractor for the work on the additional twelve units and deducted the cost thereof from the balance due Bat.
Bat perfected a mechanic's lien and brought this suit to enforce it. The owners filed a bond pursuant to Code § 43-70, causing the real property to be released from the lien, whereupon they were dismissed as defendants. The trial court heard evidence ore tenus and found that the contract of the parties contemplated the construction of sixteen units, that Bat had fully performed, and that Bat was entitled to judgment in the amount it claimed against Ivy. Ivy appeals.
The evidence as to the circumstances surrounding the formation of the contract between Ivy and Bat was convoluted, confusing, and conflicting. It is axiomatic that a chancellor's finding on conflicting evidence, heard ore tenus, will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Rochelle v. Rochelle, 225 Va. ___, ___, 302 S.E.2d 59, 63 (1983). Code § 8.01-680. A recital of a relatively small part of the evidence suffices to show that the record supports the chancellor's finding.
Palmer, Bat's estimator, testified that in December 1978 he received a set of plans from Ivy which was unclear as to the number of units to be built in White Oak Phase II. Ivy's letter soliciting a bid had referred to units, but the plans showed four "clusters." Palmer said that he called Ivy and talked to someone he believed to be Wayne Coleman, Ivy's project manager at Wintergreen, and was told to delete cluster four on the plans. This left three clusters of six units each. Thinking he was dealing with eighteen units, Palmer arrived at an estimate of $89,861.00, which he conveyed to Wayne Booth, Bat's president. For competitive reasons, Booth reduced Bat's bid to $86,760.00 and transmitted that figure to Ivy. Coleman later called Booth and told him he thought Ivy would agree to subcontract both the Highland Oaks and White Oak Phase II projects to Bat if the bids could be reduced slightly. Booth then revised the White Oak bid to $83,760.00 and the Highland Oaks bid to $84,000.00.
On February 20, 1979, Ivy wrote to Bat, stating "Ivy ... shall award the masonry sub-contract for the above referenced projects to Batt [sic] Masonry." The letter further advised Bat that the owners of Wintergreen had only committed to sixteen of the twenty-eight units in White Oak Phase II, with an option, until May 1, 1979, to call for building the remaining twelve units. The letter also told Bat that the masonry contractor who had been working on White Oak Phase I desired to be relieved and suggested that Bat might wish to bid on the twelve uncompleted units in Phase I "which would bring the total of the White Oak contract back to a minimum of 28, even if the option is not exercised." The letter acknowledged that there would have to be price adjustments for the cold weather season then existing and asked Bat to submit a new bid on this basis.
Booth testified that he had no desire to undertake completion of the unfinished work in Phase I and did not reply to Ivy's letter of February 20. On April 16, Coleman, of Ivy, wrote to Palmer, of Bat, stating:
Re: White Oak Condominiums
Wintergreen, Va.
. . .
Another set of plans for this project is due you with this letter viaUPS.
The contract has been drawn for 16 units in lieu of the original 28. The cluster breakdown is as follows:
16 unit cluster
24 unit cluster
12 unit cluster
*302 All units are 2 bedroom.
Please forward your revised quote as soon as possible.
We anticipate masonry starting in 2½ to 3 weeks. Thank you.
Palmer testified that he received the revised plans a few days later and that he and Thomas Manley, Bat's vice-president, went to Wintergreen on May 7 to inspect the site and to go over the plans with Ivy's representatives. After verifying the required foundation depths, Palmer arrived at a revised estimate of $84,500.00 for the sixteen units. Manley communicated this figure to Ivy by a telephone call to Coleman.
About May 15 Coleman asked Manley why Bat had not yet begun work on White Oak Phase II. Manley replied that Bat had not yet received a contract on the job. A few days later, a written contract arrived in the mail at Bat's office. The contract had been prepared by Ivy and signed on Ivy's behalf by its president. Although it had a typed date of April 1, 1979, it contained Bat's most recent bid price of $84,500.00, which had been arrived at on May 7, when both parties were contemplating the construction of sixteen units. It described the work to be done only as "White Oak, Phase IIin accordance with the Drawings and Specifications prepared by Mr. Bill Atwood [of] Robert Vickory and Associates." No plans, drawings, or specifications were attached to the contract. Booth signed the contract as Bat's president, and Bat completed sixteen units in reliance thereon.
This evidence, and the inferences fairly drawn therefrom, furnish ample support for the chancellor's finding that the parties contracted for the construction of sixteen units, that Bat had fully performed, and that Bat was entitled to judgment in the amount claimed. For this reason the decree appealed from will be
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343991/ | 251 Ga. 709 (1983)
309 S.E.2d 139
PERRY
v.
INTERNATIONAL INDEMNITY COMPANY.
40352.
Supreme Court of Georgia.
Decided November 30, 1983.
Rehearing Denied December 15, 1983.
Tyrus R. Atkinson, Jr., C. Jeffrey Kaufman, for appellant.
*711 James B. Gurley & Associates, Michael L. Wetzel, for appellee.
PER CURIAM.
In the present case, the Court of Appeals desires instructions from this court on the following two questions:
(1) Is a surviving spouse of a named insured killed in a covered accident, barred as a matter of law from recovery of optional no-fault benefits (Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983)) by virtue of her and her attorney's execution of an express release of all no-fault claims, which release was executed on the back of a single draft covering payment of a negotiated amount within the limits of compulsory no-fault benefits? See Flewellen, supra, Div. 4 (b); Garrett v. Heisler, 149 Ga. App. 240, 241 (253 SE2d 863) (1979); Berman v. Rubin, 138 Ga. App. 849, 854 (227 SE2d 802) (1976).
(2) May the surviving spouse of a deceased insured/applicant, as opposed to the applicant himself, "demand and receive the benefit of $50,000 coverage upon tender ... of such additional premium as may be due and filing of proof of loss ..." (Flewellen, supra, p. 712) in a case in which the applicant did not properly execute a signed rejection of optional benefits? Held:
We answer these questions as follows:
1. Division 4b of Flewellen holds that, "`A receipt marked (paid) in full for all claims arising under an insurance policy may not be pleaded as an accord and satisfaction in full, where it further appears that the sum actually paid was an amount which the company had already admitted owing and stood ready to pay in discharge of provisions of the contract other than those which are the basis of the recovery sought.' Matthews [v. Gulf Life Ins. Co., 64 Ga. App. 112 (1) (12 SE2d 202) (1940)]. Additionally, it has been held that `Where a party receives no more than the amount legally owed and where at that time there is no dispute existing between the parties, then the absence of any additional consideration (such as settlement *710 of a disputed account), causes the purported release to fail, it being a nudum pactum.' Stamsen v. Barrett, 135 Ga. App. 156, 159 (217 SE2d 320) (1975)." 250 Ga., supra at pp. 715-716.
The evidence in this case shows that the draft referred to in Question 1 covered payment of no-fault benefits unquestionably owed. Therefore, under Flewellen and the cases cited therein, the absence of any additional consideration causes the draft's restrictive endorsement to fail as a release of additional claims. Thus, Question 1 assumes facts not in evidence to the extent that it implies that the draft covered payment of a negotiated amount. For this reason, we are unable to answer Question 1 as drawn.
2. As held in Division 1 of Flewellen, "[t]he [No-Fault] statute says that $50,000 PIP coverage is the least the insurer must offer. OCGA § 33-34-5 (a) (Code Ann. § 56-3404b). The statute also says this offer of coverage may be refused only by a signed rejection in writing. OCGA § 33-34-5 (a) and (b) (Code Ann. § 56-3404b). In the absence of such a rejection, the policy, therefore, provides $50,000 PIP coverage from its inception. The insured has the right to demand and receive the benefit of $50,000 coverage upon tender by the insured of such additional premium as may be due and filing of proof of loss by the insured party." 250 Ga., supra at p. 712.
Question 2 asks whether the surviving spouse of a deceased insured may also receive and demand the benefit of $50,000 coverage upon tender of such additional premium as may be due, in a case in which the insurance applicant did not properly execute a signed rejection of optional benefits. For reasons which follow, we answer this question in the affirmative.
The term "insured" is defined under OCGA § 33-34-2 (5) (Code Ann. § 56-3402b) to include the spouse of the insured named in the policy. In addition, survivor's benefits constitute a portion of the optional benefits available under OCGA § 33-34-5 (Code Ann. § 56-3404b), and § 33-34-5 (2) (Code Ann. § 56-3404b) makes the spouse or dependent child or children the beneficiaries of these benefits. Furthermore, the surviving spouse was a co-insured under the insurance policy here.
Question 1 not answered. Question 2 answered in the affirmative. All the Justices concur, except Hill, C. J., who dissents from Division 1, and Marshall, P. J., who dissents from Divisions 1 and 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343894/ | 175 Kan. 344 (1953)
264 P.2d 894
DAIRY BELLE, INC., a corporation, Appellant,
v.
ROY FREELAND, Secretary of Agriculture of the State of Kansas, and H.E. DODGE, Dairy Commissioner of the State of Kansas, Appellees.
No. 38,478
Supreme Court of Kansas.
Opinion filed December 12, 1953.
W.A. Kahrs, of Wichita, argued the cause, and Robert H. Nelson, Clarence N. Holeman, and Keith L. Wallis, all of Wichita, and James W. Porter, of Topeka, and Hugo Swan, of Dallas, Texas, were with him on the briefs for the appellant.
Warden L. Noe, special assistant attorney general, argued the cause, and Harold R. Fatzer, attorney general, was with him on the briefs for the appellees. Freeland and Dodge; Dale M. Bryant, of Wichita, and Charles M. Fistere, Washington, D.C., were on the briefs for appellees, Gardiner Dairy and Ice Cream Co., Garden City, Puritan Dairy Products Co., Pittsburg, Jo-Mar Dairies Co., Salina, and Ambrose Creamery Company, Norton; P.K. Smith and LeRoy Warner, both of Wichita, and Balfour S. Jeffrey, of Topeka, were on the briefs for appellee, Armstrong Creamery Co., Wichita; Otis Allen, of Topeka, was on the briefs for the appellee, Shawnee County Milk Producers Association.
Leonard A. Flansburg and Charles H. Flansburg, both of Lincoln, were on the briefs as amici curiae.
The opinion of the court was delivered by
SMITH, J.:
This appeal was originally submitted on November 3, 1952. The questions involved were a construction and the constitutionality *345 of G.S. 1949, 65-720 and 721. Before this appeal was decided the legislature at the session for 1953 enacted house bill 458. This is now chapter 8, Laws of 1953. This chapter dealt with the same or similar subject matter as G.S. 1949, 65-720 and 721 and contained a provision that it should be supplemental to existing statutes and should not be deemed as repealing any section of the dairy law of the state. The relief for which plaintiff had asked was an injunction to enjoin public officers from enforcing a statute and any judgment in favor of plaintiff would operate in futuro. We decided, therefore, to have the benefit of briefs and arguments from counsel on the effect, if any, to be given chapter 8, Laws of 1953, and the constitutionality of that act. (See Ash v. Gibson, 146 Kan. 756, 74 P.2d 136.) The appeal was on May 14, 1953, reset for argument on November 2, 1953, on the effect to be given the above chapter. Briefs were filed and oral arguments were had on that day. This appeal has now been finally submitted on the question of the construction and constitutionality of G.S. 1949, 65-720 and 721, and the effect to be given chapter 8, Laws of 1953, under all the surrounding facts and circumstances. Although our order of May 14, 1953, ordered argument on the effect to be given chapter 8, Laws of 1953, counsel have argued also the question of the constitutionality of that chapter. We shall consider both question as well as the questions formerly submitted.
After alleging the incorporation of plaintiff and the identity and official capacity of the defendants, the petition alleged it was the duty of the defendants to enforce the laws of the state with reference to dairy products, particularly subsection 2 of paragraph F of section 65-707 of the General Statutes of Kansas, 1935, now G.S. 1949, 65-707, and were required to enforce the provisions of subsections 3 and 4 of section 65-708 of the General Statutes of 1935, as amended and effective July 1, 1949, being now G.S. 1949, 65-720 and 65-721, and conceived it to be their duty to enforce these statutes against plaintiff in the sale of its product. The petition then alleged that plaintiff was engaged in the sale of an article of food to the general public known as "SOYA Frozen Dessert" which contained 38.3 percent total solids, as follows:
"Vegetable soy bean fat 10%
Serum solids
(milk solids, not milk fat) 13%
Sugar 15%
Stabilizer .3%"
*346 The petition then alleged that the solids were thereafter frozen and sold in waxed containers with a full description of the container and no fraud was practiced. The petition then alleged that defendant Dodge had notified plaintiff that the sale of "SOYA Frozen Dessert" was a violation of law and had threatened the withdrawal of manufacturing license of the manufacturer of the product; that because of these threats plaintiff was unable to create new customers and would sustain damages thereby and there was a profitable market for the product of which the plaintiff could not avail itself unless the court should declare its sale not in violation of law. The petition then alleged that on account of the acts of defendants it was being deprived of its constitutional right to do business in the state and would be caused damage for which it had no adequate remedy at law. The petition then alleged it was informed defendants in their official capacity ruled the sale of "SOYA Frozen Dessert" constituted a violation of the law because it was semblance of ice cream and contained soybean fat mixed with milk solids. The petition then alleged "SOYA Frozen Dessert" was not prohibited by law and if the statutes did prohibit its sale the acts were unconstitutional and void because they would deprive plaintiff of its property without due process of law, were in violation of the fifth amendment to the constitution of the United States, of section 1 of the fourteenth amendment and of paragraph 1 of the constitution of the state, because the acts would be discriminatory and an unreasonable classification, because it was prohibitive and not regulatory and prevented the carrying on of a legal trade and business, because it was arbitrary and unreasonable interference with private business and was an abuse of the police power of the state since there was nothing in plaintiff's product injurious to the health, safety, morals or welfare of the public, because the acts referred to created unnecessary restraint of trade, created class legislation, since there was no unreasonable basis for the classification, because the legislature had no power to make the performance of an innocent act a criminal one when in fact the public health and welfare was not in danger, because the law would make an unjust and unreasonable classification and discriminated between product and business and was, therefore, class legislation and unconstitutional and void.
The prayer was that the defendants be enjoined from attempting to enforce the provisions of G.S. 1935, subsection 2 of paragraph F of 65-707, and subsections 3 and 4 of G.S. 1935, 65-708, as amended *347 by house bill 406 of the legislature of 1949, now G.S. 1949, 65-720 and 721, and from attempting to prohibit the sale of "SOYA Frozen Dessert" or from threatening arrest or prosecution of plaintiff and its agents; and that the court determine that the statutes do not prevent the manufacture and sale of it, and that if the statutes do prevent such manufacture and sale, then such statutes be held unconstitutional and void and that pending the final decision a temporary injunction be issued.
Soon after the filing of the action a temporary restraining order was issued.
The answer of defendants Freeland and Dodge admitted the incorporation of plaintiff and the identity of the defendants and that plaintiff was engaged in the sale to the general public of the product known at that time as "SOYA Frozen Creme." The answer then alleged that the product was a frozen product made in the semblance of ice cream but containing less than ten percent of milk fat and fell within the classification of "ice milk," as defined by chapter 330 of the Laws of Kansas of 1949, now G.S. 1949, 65-720 and 721; that it contained fats other than milk fat in a substantial quantity and was an adulterated product within the meaning of that chapter; that it was offered for sale in violation of these statutes. The answer then contained the following allegation:
"8. That in the manufacture of the ordinary ice milk of commerce, containing a substantial amount of milk fat, consumers perceive a richness of product associated with cream; whereas, in the case of the aforesaid soya frozen creme, containing a vegetable oil in substitution for cream, a false and deceptive impression that milk fat is present is created in the mind of the consumers.
"9. In the manufacture of ice milk in compliance with the requirements of the statute, and where milk fat is used, it is found that a significant proportion of milk fat is necessary to render the product palatable and acceptable to the consumers; that the ice milk manufactured in Kansas customarily contains a substantial amount of milk fat; that the plaintiff's product is made in semblance of ice cream and in semblance of ice milk, having a milk content; and that the ordinary consumer is unable to distinguish by odor, taste, appearance, or consistency a product made with milk fat from those made with the cheaper, inferior and substituted soy bean or other vegetable oils, by reason of the fact that such oils give the impression of richness, which gives opportunity and temptation for deception, which the statutes were intended to prohibit.
"10. That the product is such that it may and is readily sold to the consumer and accepted by him with the belief on his part that it is ice milk made in part from cream, or that it is ice cream, when as a matter of fact, by reason of the substitution of other oils than milk fats, the product is deficient in *348 certain nutritional qualities and is not of equal nutritional value with ice milk made with the milk fat content."
The answer then contained a statement that the package containing it was the same shape and coloration as the package used for ice cream and it was susceptible of being sold as ice milk made in part from cream with the result that its sale offers an opportunity for fraud and deception and the public was deceived thereby; that the plaintiff even though its product falls within the statute as "ice milk" even though adulterated had not been placed upon the containers in which it was sold a label of "ice milk" and its failure so to do was a violation of law. The answer then alleged that plaintiff supplied establishments with its product with the knowledge that they sold it without posting a notice that "ice milk" is sold here. The answer then contained an allegation as follows:
"15. That the statutes hereinbefore cited were enacted to prohibit fraud, deception, and confusion and to protect the public health by preventing the substitution of inferior fats for milk fats, and were clearly within the legislative power; that such statutes are valid and constitutional."
Some four dairy and ice cream companies were permitted to intervene and filed answers substantially as the one just set out.
At the trial there was an extended hearing. The trial court made findings of fact and conclusions of law after the formal ones as follows:
"3. Defendants notified the officers of the plaintiff corporation that the sale and manufacture of Soya Frozen Dessert is in violation of law. Defendants threatened prosecution of plaintiff's company and the withdrawal of the manufacturer's license for the manufacture of said product.
"4. Soya Frozen Dessert was admitted by the parties in pre-trial conference to be `non-toxic.'
"5. Soya Frozen Dessert is a frozen product made of the following ingredients:
"Vegetable soy bean fat 11%
Powdered skim milk 10 1/2%
Sugar 16%
Stabilizer 3/10 of 1%
Powdered Egg Yolk 6/10 of 1%
Total Solids 38 4/10%
"6. Soya Frozen Dessert is wholesome, edible, and fit for human consumption. It is produced in the following flavors: vanilla, chocolate and strawberry. The method of manufacture is the same as that for ice cream, with the same equipment used.
"7. Plaintiff's product, Soya Frozen Dessert, is sold to retail trade and only in pint cartons, plainly marked `Soya Frozen Dessert.' It is not sold as a *349 substitute for any other product. It is a product sold in its final form, ready for consumption when packed in the carton. It is not sold in bulk.
"8. There is no fraud or deception in the sale of the product.
"9. Soya Frozen Dessert is made `in semblance of ice cream.' Most of the samples show less than ten per cent (10%) milk fat. Ordinary consumers are unable to distinguish it, by appearance, odor, consistency and taste from ice cream made with milk fat.
"10. The cost of hydrogenated soya fat is twenty-two cents per pound as compared to seventy-seven cents per pound for butter fat.
"11. A controversy exists between the plaintiff and defendant as to plaintiff's right to sell its product, Soya Frozen Dessert; to enter into contracts for the manufacture of the product, and for the sale of the same by others under franchise with the plaintiff. There is a market for said product within the state of Kansas of which plaintiff cannot avail itself because of threats of prosecution made by the defendants.
"12. No findings or conclusions are necessary as to a violation of the Kansas Filled Milk Statute, Section 65-707 (F) (2) G.S. 1935, because defendants abandoned that contention.
"CONCLUSIONS OF LAW
"1. Soya Frozen Dessert is a product prohibited by the Ice Milk Statute (S.L. 1949, Ch. 330, p. 567, Sec. 3) and therefore controlled by it.
"2. The Ice Milk Statute, G.S. 1935, 65-708, as amended by Session Laws 1949, Ch. 330, page 567, does not violate Article II, Sec. 16 of the Kansas Constitution.
"3. The temporary injunction heretofore granted by this court is now dissolved.
"4. Defendants should have judgment for their costs."
The plaintiff's motion for an order vacating the judgment to set aside findings of fact and conclusions of law and for a new trial was overruled, also the motion of defendants and intervenors to strike Finding No. 8 and for an additional finding that
"The plaintiff's product `Soya Frozen Dessert' is susceptible of confusion and deception and of being sold as and for ice cream and ice milk and is itself an instrument of fraud. The labeling of plaintiff's product is not sufficient to prevent fraud and deception upon the consuming public."
The plaintiff was given permission to amend its petition to challenge the constitutionality of the act because of its title. Judgment was entered in accordance with the findings of fact and conclusions of law.
The dairy commissioner argues plaintiff is violating G.S. 1949, 65-720. It provides as follows:
"`Ice milk' defined; labeling; sale for immediate consumption, notice. Ice milk means and includes a frozen product or semifrozen product made in semblance of ice cream, but containing less than ten percent (10%) milk fat. *350 Ice milk shall not contain any fats, oils or paraffins other than the milk fat. Ice milk shall not be sold in packages, cans or wrappers, unless the containers are plainly labeled in legible eight point type, with the words, `Ice Milk.' Ice milk shall not be sold for immediate consumption in business establishments, unless there is posted in a conspicuous place on the premises a card showing in two-inch type the following: `Ice Milk Is Sold Here,' or unless such wording appears prominently on the menu with type no smaller than the largest type appearing thereon. (L. 1949, ch. 330; § 3; June 30.)"
The penalty section is G.S. 1949, 65-721. It provides as follows:
"Same; penalty. It shall be unlawful to offer for sale or sell any ice milk which does not conform to the definition and standard therefor as set forth in this act. Any person who violates any provision of this act, for which a penalty is not otherwise provided shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than twenty-five dollars ($25) nor more than two hundred dollars ($200) for each offense. (L. 1949, ch. 330, § 4; June 30.)"
Plaintiff's product is a frozen dessert made of vegetable oil 11 percent, powdered skim milk 10 1/2 percent, sugar 16 percent, stabilizer 3/10 of 1 percent, powdered egg yolk 6/10 of 1 percent and 62 percent water. Defendants in the former appeal argued that the product of plaintiff violated the above statute in that it was made in the semblance of ice cream, that is, it looked and tasted like ice cream and yet it had vegetable oil added (in this case soybean oil) and it contained less than 10 percent milk fat. The theory of the statute is that ice cream must contain at least 10 percent milk fat and any product that contains less than that much milk fat and looks and tastes like ice cream is "ice milk." The turning point in the case is, that this product is in the semblance of, that is, it looks and tastes like ice cream, yet has no milk fat and has soybean oil added.
The plaintiff argues first that its product was not prohibited by the statute quoted; and second, if the statute be construed to prohibit the sale of "Soya Frozen Dessert" it was unconstitutional. It argues also that G.S. 1949, 65-720 and 65-721, violates article 2, section 16, of the constitution of the State.
Plaintiff argues first that neither statute applies to its product. Its argument is the statutes merely define ice milk as a product containing less than ten percent of milk fat, that is, it is a statute of definition rather than of prohibition. We must concede the statute is not as artfully drawn as it might had been. However, we have no difficulty in reaching a conclusion the legislature intended to provide and actually did provide that no product which looked and tasted like ice cream and had vegetable oil added could be sold in Kansas. The legislature said ice milk should not contain any vegetable *351 fats. Plaintiff argues that its product is not ice milk hence the statute does not prohibit it from being sold even though it contains vegetable fats. It is, however, made in the semblance of ice cream and does contain less than ten percent butterfat. If we forget about the name "ice milk" for a moment we have no difficulty in concluding that both statutes provide a product made in the semblance of ice milk and containing less than ten percent butterfat cannot be sold if it contains vegetable oil.
After a consideration of the briefs and final submission of this appeal on November 2, 1953, we have concluded that while the later enactment, that is, chapter 8, Laws of 1953, is more sweeping in its scope as applied to dairy products generally, still it by its terms is supplemental to the former statute. This appeal may very well be decided upon a consideration of G.S. 1949, 65-720 and 65-721, and its validity.
We go now to a consideration of the question of whether these two sections violate the constitution. The questions may be stated in the words of counsel for plaintiff as well as any other. He says:
"It is conceded that the Legislature has authority by a Legislative enactment to prohibit the sale of any product to the consuming public if such Legislation is necessary (a) to preserve the public health and (b) to prevent fraud and deception in the sale thereof to the consumers, State vs. The Sage Stores Company, 157 Kan. 404. But the Legislature cannot arbitrarily prohibit the sale of a wholesome product where the public health is not affected and when such product is being sold without deception and fraud as in the case at bar."
Counsel relies on the finding of the trial court that there is no fraud in the sale of this particular product and that it is wholesome, edible and fit for human consumption.
Plaintiff concedes the legislature has authority to prohibit the sale of any product if such legislation is necessary to preserve the public health and to prevent fraud and deception in the sale of such product to consumers. There is in this record no argument or findings as to health. The outcome of the case rests on the fraud feature.
It must be conceded the trial court found there was no fraud in the sale of this particular product. The problem is not quite that simple, however. If it is such a product as to be readily susceptible of being sold fraudulently, then the legislature has power to prohibit its sale.
While this case is not controlled under the facts by State, ex rel., v. Sage Stores Co., 157 Kan. 404, 141 P.2d 655, it is controlled by it in principle. That was a quo warranto action to challenge the legality *352 of the sale of a product known as milnot. It was a milk product to which vegetable oil had been added. G.S. 1949, 65-707, known as the "filled milk statute" prohibited the sale of such a product. Where the situation in that case differs from this on the facts is that "milnot" was a liquid product and "SOYA Frozen Dessert" is a frozen one. The statute prohibited the sale of either one where vegetable fats had been added. There was a health question in that case also. We appointed a commissioner who took evidence and made findings of fact and conclusions of law. One of the questions was the constitutionality of the statute. On that we said:
"For the purpose of determining the constitutionality of the law in question it is immaterial whether we believe defendant's product when considered as a whole is inferior, equal or superior to whole milk or exaporated (sic) whole milk if substantial disagreement in fact exists with respect to the inferiority of the product as compared with whole milk or evaporated whole milk, and the legislature has some basis for believing a filled-milk product is likely to be sold or is susceptible of being sold as and for whole milk or evaporated whole milk with the result that the public may be deceived thereby. In other words, in the view we take of the law governing this case the sale of a filled-milk product, although wholesome and nutritious, may be constitutionally prohibited as well as merely regulated if the legislature has some basis for believing the product is inferior to whole milk or evaporated whole milk and that the sale of the product offers an opportunity for fraud and deception and that prohibition rather than mere regulation of its sale is necessary for the adequate protection of the public health or general welfare. We think there was a sufficient basis for the exercise of legislative judgment as to a filled-milk product and the remedy adopted to effect the legislative purpose."
There was a health feature in that case. Each time, however, the question of power of the legislature to enact such legislation was discussed it was said it could be done to prevent fraud as well as to preserve health.
For instance in conclusion of Law No. 1 the commissioner said:
"The statute in question (G.S. 1941 Supp. 65-707 (F) (2) has a two-fold purpose: (1) Preservation of the public health, and (2) prevention of fraud and deception on the consumers of the state."
Also conclusion No. 3
"If the character or effect of an article, as intended to be used, be debatable, the legislature is entitled to its own judgment, ..."
Also conclusion No. 6
"Whether the purposes of the statute may be attained by regulation or whether absolute prohibition is necessary are questions for the legislature."
All these conclusions of law were set out and approved by us in the opinion.
*353 Our judgment was appealed to the Supreme Court of the United States. (See Sage Stores Co. v. Kansas, 323 U.S. 32, 65 S. Ct. 9, 89 L. Ed. 25.) The supreme court pointed out that a writ of certiorari was granted to examine a single issue, that is, whether the Kansas statute was an arbitrary, unreasonable and discriminatory interference with petitioner's rights of liberty and property in violation of due process and equal protection clauses of the Fourteenth Amendment of the Federal Constitution.
After discussing the health feature of the record the court said:
"It was also determined by the commissioner and approved by the court that one purpose of the legislature was the prevention of fraud and deception in the sale of these compounds. State v. Sage Stores Co., 157 Kan. 404, 412-13.
"As a consequence of this evidence, findings of fact and conclusions of law, the rational basis for the action of the legislature in prohibiting the sale, or keeping for sale, of the compounds is even more definite and clear than in Carolene Products Co. v. United States, ante, p. 18. Since petitioners' products had the taste, consistency, color and appearance of whole milk products, we need not consider the validiy of the Kansas act as applied to compounds which are readily distinguishable from whole milk compounds. Reference is made to part "Third" of the Carolene opinion for a discussion as to whether or not a prohibition of these products violates due process."
This was a companion case of Carolene Products Co. v. U.S., 323 U.S. 18, 65 S. Ct. 1, 89 L. Ed. 15. There the court considered the validity of a federal filled milk statute similar to our state statute. On the question we are considering the court said:
"The reports show that it was disputable as to whether wholesome filled milk should be excluded from commerce because of the danger of its confusion with the condensed or evaporated natural product or whether regulation would be sufficient. The power was in Congress to decide its own course. We need look no further."
But little would be added to the force of this opinion by setting out or quoting from other opinions. The authorities are well discussed in the above opinions.
The judgment of the trial court is affirmed.
WEDELL, J., (concurring specially):
My views concerning the unconstitutionality of a statute similar in purpose to the one now under consideration are contained in my dissenting opinion in State, ex rel., v. Sage Stores Co., 157 Kan. 404, 419, 141 P.2d 655. The supreme court of the United States rejected those views in Sage Stores Co. v. Kansas, 323 U.S. 32, 89 L.ed. 25, 65 S. Ct. 9.
It appears to me the last-mentioned decision, in principle, is controlling *354 in the instant case. Personally, I adhere to the views expressed in my former dissent and for the reasons therein stated. However, as a member of this court, I am bound by the decision of the supreme court of the United States on the question of constitutionality of the law. For that reason I am obliged to concur in the instant decision.
SMITH and WERTZ, JJ., join in the foregoing concurring opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343896/ | 42 Cal. 2d 1 (1953)
HENRY K. HENDERSON, Respondent,
v.
LILY ZELLERBACH DRAKE, Appellant.
S. F. No. 18871.
Supreme Court of California. In Bank.
Dec. 31, 1953.
Erskine, Erskine & Tulley and J. Oscar Goldstein for Appellant.
H. W. Glensor for Respondent.
SCHAUER, J.
Defendant appeals from an order denying her motion to dissolve an attachment. The only ground of the motion was "that judgment had been rendered in favor of the defendant and no notice of appeal or undertaking on appeal had been filed within five days from and after the entry of said judgment." The sole question for decision is the correctness of the order denying such motion. We have concluded that under sections 553 and 946 of the Code of Civil Procedure, upon which the motion was based, the trial court was required to deny it.
In this action against defendant plaintiff attached certain shares of corporate stock owned by defendant. Thereafter, on November 26, 1951, judgment for defendant was entered in that action. No formal written notice of entry of judgment was given to plaintiff. No appeal was taken but on December 4, 1951, plaintiff served and filed notice of intention to move for a new trial. On January 3, 1952, defendant served and filed notice of motion to dissolve the attachment. On January 28, 1952, plaintiff's motion for a new trial was granted. On February 6, 1952, defendant's motion to dissolve the attachment was denied; on this date neither the time for an appeal by defendant from the order granting the new trial nor, in the event defendant took such appeal, for a cross-appeal by plaintiff from the judgment, had expired.
Section 553 of the Code of Civil Procedure provides in material part, "If the defendant recovers judgment against the plaintiff, and no appeal is perfected and undertaking executed and filed as provided in section 946 of this code, ... all the property attached ... must be delivered to the defendant or his agent, the order of attachment be discharged, and the property released therefrom." Section 946 provides in material part, "An appeal does not continue in force an attachment, unless an undertaking be executed and filed on the part of the appellant ... and unless, within five days *4 after written notice of the entry of the order appealed from, such appeal be perfected."
[1] Under the wording of those sections it is clear that an attachment may be preserved by taking an appeal and that an attachment remains effective after rendition of judgment for defendant until there is no longer a right to appeal, unless written notice of entry of judgment is given, in which event the appeal must be perfected within five days after such notice or the attachment becomes subject to discharge. [2] Section 553 states that if defendant recovers judgment and no appeal is taken and no undertaking filed, then the "order of attachment [must] be discharged." This necessarily implies that if an appeal is perfected and an undertaking filed, then the attachment should not be discharged. [3] Similarly, section 946 states that an appeal does not "continue in force an attachment, unless an undertaking" is filed and, "unless, within five days after written notice of the entry of the order appealed from," the appeal is perfected. This necessarily implies that the filing of the undertaking and the perfection of the appeal will keep the attachment alive. The only reference to time contained in the sections is the requirement of section 946 that the appeal be perfected "within five days after written notice of the entry of the order appealed from." It is reasonable, therefore, to conclude that the attachment remains effective as long as an appeal may be taken unless written notice of entry of judgment is given, in which event the attachment perdures for only five days after such notice unless an appeal is perfected within that time. If sections 553 and 946 were not so construed, plaintiff would have to file his undertaking and perfect his appeal at the same time the judgment for defendant was entered, or the mere entry of judgment for defendant would discharge the attachment.
[4] As is held in Primm v. Superior Court (1906), 3 Cal. App. 208, 211 [84 P. 786], an attachment is not "finally and irrevocably dissolved the moment a judgment for defendant is entered. ... A fair, reasonable, unstrained construction [of sections 553 and 946] leads to the conclusion that the dissolvent force of a judgment is neutralized by a perfected appeal, provided the additional undertaking is filed and the appeal perfected within the specified time. This construction gives harmonious effect to both sections and does not nullify any part of either." (See, also, Morneault v. National Surety Co. (1918), 37 Cal. App. 285, 286 [174 P. 81]; Clark v. Superior *5 Court (1918), 37 Cal. App. 732, 734 [174 P. 681]; Albertsworth v. Glens Falls Indem. Co. (1948), 84 Cal. App. 2d 816, 819 [192 P.2d 66]; Davis v. Fidelity & Deposit Co. (1949), 93 Cal. App. 2d 13, 16 [208 P.2d 414].)
[5] The time to appeal had not expired when the notice of motion to dissolve the attachment was filed on January 3, 1952, or when the trial court denied such motion on February 6, 1952. Plaintiff had 60 days from the entry of judgment (i. e., from November 26, 1951) in which to file notice of appeal (Rules on Appeal, rule 2(a)), and when he served and filed his notice of intention to move for a new trial the time for appeal was extended (Rules on Appeal, rule 3(a)). When the trial court denied the motion to dissolve the attachment, plaintiff's motion for a new trial had been granted. Regardless of the effect or lack of effect on the attachment of the order granting a new trial, defendant at the time of the denial of her motion to dissolve the attachment could have appealed from the order granting the new trial and, had she done so, plaintiff could have appealed from the judgment (Rules on Appeal, rule 3(a)). Therefore, on February 6, 1952, there was still an opportunity for plaintiff to perfect an appeal, file an undertaking, and in that manner keep alive the attachment, and the trial court correctly refused to order that the attachment be dissolved.
Since no written notice of entry of the judgment of November 26, 1951, was given, the five days referred to in section 946 did not run. Defendant urges that although she did not give formal notice of entry of judgment and thus start the running of the five-day period, there was substantial compliance with the requirement of section 946 that "written notice" be given. She says that her notice of motion to dissolve the attachment was, in effect, a notice of entry of judgment, and that plaintiff's notice of motion for a new trial constituted a waiver of written notice of entry of judgment. [6] It is true that a statutory requirement of "written notice" of entry of judgment can be waived, and that in some circumstances it has been held that the filing, by the party entitled to such written notice, of a document disclosing his actual knowledge of the entry of judgment shows waiver of the written notice. (Prothero v. Superior Court (1925), 196 Cal. 439, 441, 444 [238 P. 357].) [7] But waiver is the intentional relinquishment of a known right. (Roesch v. De Mota (1944), 24 Cal. 2d 563, 572 [150 P.2d 422].) [8] The fact that plaintiff here evidenced his actual *6 knowledge of the entry of judgment does not show that he intended to waive his right to receive written notice thereof for the purpose of starting the running of the five-day period within which he could save his attachment. (See Hughes Mfg. etc. Co. v. Elliott (1914), 167 Cal. 494, 496 [140 P. 17].) [9] And the fact that defendant incidentally indicated to plaintiff, by serving and filing her notice of motion to dissolve the attachment, that judgment had been entered is not sufficient compliance with the statutory requirement that written notice be given to start the running of the five-day period. (See Byrne v. Hudson (1899), 127 Cal. 254, 257 [59 P. 597].)
For the reasons above stated the order appealed from is affirmed.
Gibson, C.J., Shenk, J., Edmonds, J., and Spence, J., concurred.
CARTER, J.
I dissent.
By a skillful process of legal legerdemain the majority opinion attempts to bring to life an attachment which died a natural death on January 28, 1952, when plaintiff's motion for a new trial was granted by the trial court.
It is conceded by the majority that pursuant to sections 553 and 946 of the Code of Civil Procedure an attachment is dissolved when judgment is rendered in favor of the defendant unless he perfects an appeal and gives an undertaking within five days after receiving notice of entry of judgment, and that it is not kept alive by proceedings on motion for a new trial.
In the light of this concession let us examine the record:
(1) November 26, 1951. Judgment for defendant entered.
(2) December 4, 1951. Plaintiff served and filed notice of intention to move for a new trial on all statutory grounds.
(3) January 3, 1952. Defendant served and filed notice to dissolve attachment.
(4) January 28, 1952. Motion for new trial granted.
(5) February 6, 1952. Motion to dissolve attachment denied.
(6) The agreed statement on appeal states: "No appeal has ever been taken by [defendant] Henry K. Henderson from said judgment. No undertaking on appeal was filed by Henry K. Henderson within five days after the entry of said judgment or at any other time."
It is true that no formal notice of entry of judgment was *7 given by defendant, but both plaintiff's notice of intention to move for a new trial and defendant's notice of motion to dissolve the attachment refer to "the judgment heretofore made and entered in the above entitled action." It seems to me that it is stretching legalism to the breaking point to say, in view of this record, that plaintiff did not have adequate notice of entry of judgment. But conceding that he did not, and that his time to perfect an appeal from the judgment and give an undertaking did not expire until five days after such notice was given, or his time for appeal had expired, or had lost his right to appeal, there can be no question that the latter event occurred on January 28th, 1952, when his motion for a new trial was granted. This event terminated his right to appeal, as it is well settled that an appeal does not lie from an unconditional order or judgment in favor of the appellant and such an appeal must be dismissed (3 Cal.Jur.2d 110, p. 566). The fact that plaintiff could have cross- appealed from the judgment if defendant had appealed from the order granting the new trial, is beside the question, as defendant did not appeal and the order granting plaintiff's motion for a new trial has become final. There can be no question that plaintiff's right to appeal from the judgment was lost when his motion for a new trial was granted. Conceding that plaintiff would have had a right to cross-appeal from the judgment if defendant had appealed from the order granting the new trial, since defendant did not appeal from said order, plaintiff's right to cross-appeal never came into existence.
The order denying defendant's motion to dissolve the attachment was entered February 6, 1952, nine days after the motion for a new trial was granted. At that time plaintiff had not and could not comply with the requirements of sections 553 and 946 of the Code of Civil Procedure, and the motion to dissolve the attachment should, therefore, have been granted.
Even accepting the unsound reasoning of the majority, that at the time defendant's motion to dissolve the attachment was denied, plaintiff's time to appeal had not expired, because he had the right to cross-appeal if defendant appealed from the order granting the new trial, and, therefore, the motion was properly denied, it will avail plaintiff nothing, as the attachment must now be dissolved because of plaintiff's noncompliance with the provisions of sections 553 and 946 of the Code of Civil Procedure. *8
The last cited code sections and decisions construing them make it clear that the pendency of a motion for a new trial or the granting of that motion does not operate to stay the extinguishment of an attachment, or that an attachment continues in force until the motion is determined. While the Legislature saw fit to provide for keeping the attachment alive in event of an appeal by plaintiff, and there appears to be no reason why they did not make a similar provision in case of a pending motion for a new trial, the fact remains that section 553, supra, requires without limitation (except in the case of appeal) that when defendant recovers judgment the attachment must be discharged. Nothing is said about a motion for new trial and I know of no other statute which makes the pendency of such a motion operate to keep the attachment alive. There is no provision for giving an undertaking to keep the attachment in force when a motion for a new trial is made as there is when an appeal is taken. The undertaking in the case of an appeal is to give protection to the defendant in addition to that afforded by the undertaking to obtain the attachment. (Albertsworth v. Glens Falls Indem. Co., 84 Cal. App. 2d 816 [192 P.2d 66].) The absence of a provision for such added protection pending the disposition of a motion for a new trial indicates that the pendency of such a motion does not keep the attachment alive. It has been held that a motion for a new trial does not in itself stay the execution of the judgment by the prevailing party. (People v. Loucks, 28 Cal. 68; Jones v. Spears, 56 Cal. 163; Harris v. Barnhart, 97 Cal. 546 [32 P. 589]; Kokole v. Superior Court, 17 Cal. App. 454 [120 P. 67]; Knowles v. Thompson, 133 Cal. 245, 247 [65 P. 468]; 121 A.L.R. 686.) Before it was amended in 1907 and 1909 (Stats. 1907, p. 708; 1909, p. 967), section 553 did not contain the provision for keeping the attachment alive by perfecting an appeal, and it was held that an appeal by plaintiff from the judgment and a reversal thereof did not stay the discharge of the attachment or revive it. (Loveland v. Alvord Consol. Quartz Min. Co., 76 Cal. 562 [18 P. 682]; Hamilton v. Bell, 123 Cal. 93 [55 P. 758]; contra: cases collected 115 A.L.R. 598.) And under the prior law the lack of finality of the judgment with regard to appeal did not prevent the discharge of the attachment. (Aigeltinger v. Whelan, 133 Cal. 110 [65 P. 125].) Indeed, since the amendment to 553, the making in the trial court and granting of a motion to vacate a judgment for defendant does not preserve the attachment (Clark v. *9 Superior Court, 37 Cal. App. 732 [174 P. 681]). Under a statute similar to ours the same result has been reached in regard to a pending motion for a new trial (Ranft v. Young, 21 Nev. 401 [32 P. 490]). It is clear, therefore, that the Legislature has not made either the pendency or granting of a motion for a new trial after judgment for defendant effective to keep alive or revive an attachment.
Notwithstanding the foregoing, the majority affirms an order which is obviously invalid and which must be vacated by the trial court when this decision becomes final. This, however, will necessitate further proceedings in the trial court and another appeal if the losing party sees fit to thus prolong the litigation.
This is unfortunate in view of the overcrowded condition of our court calendars. It also violates the policy of our courts to decide cases so as to terminate litigation wherever possible in the interests of justice.
For the foregoing reasons, I would reverse the order.
TRAYNOR, J.
I dissent.
It is my opinion that plaintiff had written notice of the entry of judgment within the meaning of section 946 of the Code of Civil Procedure and that his right to preserve the attachment by taking an appeal was therefore lost five days after the service of the notice.
Judgment for defendant was entered on November 26, 1951. On December 4, 1951, plaintiff served and filed notice of intention to move for a new trial, and on January 3, 1952, defendant served and filed notice of motion to vacate the attachment on the ground that "judgment had been rendered in favor of the defendant and no notice of appeal or undertaking on appeal had been filed within five days from and after the entry of said judgment." At no time thereafter did plaintiff perfect an appeal from the judgment. Defendant's motion was denied on February 6, 1952, after plaintiff's motion for a new trial had been granted. Section 946 of the Code of Civil Procedure provides that an attachment may be continued in force if an appeal is perfected "within five days after written notice of the entry of the order appealed from." Whether or not plaintiff's notice of motion for a new trial constituted a waiver of the right to written notice (see Prothero v. Superior Court, 196 Cal. 439, 444 [238 P. 357], defendant's notice of motion to vacate the attachment, which recited that "judgment had been rendered in favor *10 of defendant," constituted written notice of the entry of the judgment within the meaning of section 946. The right to preserve the attachment by taking an appeal was therefore lost five days after the service of the notice on January 3, 1952.
Section 946 assures the plaintiff knowledge of the entry of judgment and fixes the date for the commencement of the running of the five-day period. These purposes were accomplished when defendant served and filed her notice of motion to vacate the attachment. The only other possible purpose for the notice of the entry of judgment is to bring home to the plaintiff that the defendant is asserting his right to have the attachment dissolved if an appeal is not perfected in five days. (See Byrne v. Hudson, 127 Cal. 254, 257 [59 P. 597].) Since defendant's notice expressly called plaintiff's attention to the fact that defendant was relying on the entry of judgment to establish her right to dissolution of the attachment, it could not have subserved this purpose better. The majority opinion states, however, that "the fact that defendant incidentally indicated to plaintiff, by serving and filing her notice of motion to dissolve the attachment, that judgment had been entered is not sufficient compliance with the statutory requirement that written notice be given to start the running of the five-day period. (See Byrne v. Hudson (1899), 127 Cal. 254, 257 [59 P. 597].)" In the Byrne case the judgment provided that if plaintiff did not pay defendant a certain sum of money within 20 days of written notice of entry of judgment she would lose her equity of redemption. Defendant served on plaintiff a notice of intention to move for a new trial, reciting that the judgment had been entered. The court held that this notice of motion was not sufficient to start the running of the 20-day period. "The question arose out of the express terms of the judgment, which required 'written notice of the entry of this judgment.' We think, therefore, that as appellant's right in the premises depended upon the commencement of the running of a certain period of time mentioned in the judgment, and as her title was to be forfeited unless a certain act was done within that period of time, she was entitled to a notice expressly intended for the purpose of starting the period of time mentioned in the judgment, and that a mere incidental recital in a notice of a motion for a new trial, given for an entirely different purpose, was not a sufficient compliance with the terms of the judgment." (127 Cal. at 257.) In the present case, however, defendant's notice of motion was not given *11 for a purpose foreign to the attachment, but was related directly to the effect of the entry of judgment on its continuance. The fact that judgment had been entered was not recited merely incidentally, but as the very basis for the intended motion. Defendant may have been premature in noticing her motion to dissolve the attachment, but by doing so she gave plaintiff all the notice of the entry of judgment to which he was entitled. When he failed within five days to perfect an appeal from the judgment, defendant was entitled to have the attachment dissolved. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343947/ | 175 Kan. 446 (1953)
264 P.2d 1058
EMMA MATHEY, Appellant,
v.
CHARLES H. MATHEY, Appellee.
No. 39,126
Supreme Court of Kansas.
Opinion filed December 12, 1953.
Henry H. Asher, of Lawrence, argued the cause, and C.L. Hoover, of Junction City, and Myron S. Steere, of Ottawa, were with him on the briefs for the appellant.
U.S. Weary, of Junction City, argued the cause and was on the briefs for the appellee.
*447 The opinion of the court was delivered by
WEDELL, J.:
In this action the wife sued for divorce, division of property and alimony.
It appears the domestic life of the parties had been a turbulent one. In appellee's opening statement the trial court was advised he would not contest the divorce and in that connection made the following statement:
This was the fourth divorce action. The first was dismissed. The second was tried and a divorce was granted. Thereafter the parties remarried. During pendency of the third action the parties effected a reconciliation and made a property settlement. They later concluded a further attempt to reconcile their differences was hopeless. On November 21, 1951, plaintiff filed the instant action.
It appeared the parties, with the urging of their respective attorneys, had agreed not to unduly expose their respective charges of misconduct to the public again. Enough testimony was introduced by plaintiff together with corroborating testimony to justify a decree of divorce in her favor. Defendant has not appealed from the decree of divorce. The plaintiff has appealed from that part of the judgment pertaining to a division of property and also contends the court erred in refusing to award alimony.
As a result of the property settlement in the former divorce action the parties jointly owned the three pieces of real estate involved in the instant action. Appellant also owned real estate which she had acquired in the 1946 divorce action. That property was set aside to her in the instant decree as property owned by her prior to the last marriage.
Only one witness, a real estate man, testified relative to the value of the three properties involved. That testimony consisted of a prepared statement of the witness introduced by appellant with appellee's consent. One of these properties had been quite well refurnished with new carpeting and other articles within the last year prior to the filing of this divorce action. It was valued at $7,500. It appears the two other properties were valued by the witness as $3,000 and $3,500 respectively.
The court's memorandum opinion which was made a part of its decree recited it had valued those two properties at $3,200 and $3,200.50 respectively. A subsequent nunc pro tunc order, which will be treated later, disclosed those figures were inadvertently transposed; *448 that on the basis of the testimony of the witness the court had fixed the value of those two properties at $3,250 each or $6,500 for both, the total value therefor being the same as that placed thereon by the witness. The court awarded the $7,500 property to appellant and the two last mentioned properties valued at $6,500 to appellee.
No testimony was offered by either party relative to the value of the furnishings in any of the three properties. The values fixed by the witness were accepted by the court as embracing the real estate and furnishings in each case. We find no testimony in the record as to the rental value of any of the three properties. The court also awarded appellant a one-half interest in the rent account which the parties owned jointly. It awarded appellant a 1948 Pontiac car owned by appellee upon which no specific value was placed by any testimony. Appellee owned a mortgage on a country club. The unpaid balance thereon was $2,000. The court awarded appellant a one-half interest therein.
The court awarded appellee a 1951 Pontiac car, which he owned. No value was placed on it in the testimony. No order was made relative to a very small bank account owned separately by each of the parties. The decree was rendered February 21, 1953.
It seems appellant did not order a transcript of the proceedings on the motion for a new trial. The supplemental transcript of that proceeding, set forth in the counter abstract, discloses appellant's counsel who tried the case, not counsel who argued the appeal here, objected on that hearing to the division of property and argued that no alimony had been allowed to appellant; that the word alimony did not appear in the memorandum opinion.
The trial court stated:
"It is probably true that the memorandum which was filed in this case was unskillfully drawn. It certainly was prepared with both a division of the property, and of alimony. The difference in value of the properties awarded to the plaintiff and those awarded to the defendant, plaintiff receiving the larger amount, was what the court intended to be the amount of alimony allowed.
"In view of all of the circumstances disclosed by the evidence in the case, I feel that the allowance so made was fully justified and the court is still satisfied with it, and the motion for new trial will be overruled."
Trial counsel for appellant thereupon stated he found fault "... with the reasonableness of the allowance of the alimony. ..." (Our italics.)
After the hearing on the motion for new trial the journal entry *449 of judgment was submitted by trial counsel for appellant to counsel for appellee without the journal entry having been redrafted to reflect clearly the fact the court had made an alimony award and of what such award consisted. Counsel for appellee informs us he approved the journal entry without making a careful examination thereof.
When counsel for appellee received the abstract and brief of appellant filed in this court he discovered one of appellant's contentions was that no alimony award had been made. He thereupon filed a motion for an order nunc pro tunc, which was more than two court terms after the rendition of judgment.
The motion, in substance, alleged that notwithstanding counsel for appellee had approved the journal entry he did not believe it correctly set forth the findings of the court as made by it and did not realize until February 14, 1953, it contained the clause, "that Defendant, disregarding his duties and marriage vows, has been guilty of gross neglect of duty and extreme cruelty...."
The court's memorandum opinion, however, did contain the above quotation and the court overruled the motion insofar as it asked for a change in the judgment. The order further reads:
"The memorandum filed in this case on the 21st day of February, 1953, was unskillfully drawn for which the court takes full blame, and contains some clerical errors, and in one or two instances there are obscurities which require clarification.
"The testimony of Richard J. Brown, a real estate dealer in Junction City, was read into the record by the attorney for the plaintiff with the consent of the attorney for the defendant, in Mr. Brown's absence. That testimony was the only evidence of values of the properties involved that was presented by either side. That testimony stated that the properties at 112 East 2nd Street and 219 East 8th Street, were each of the value of `from 3000.00 to $3500.' Upon this testimony the values of the two properties was fixed by the court at $3250.00 each, or $6500.00 for both. In some manner that figure was entered in the memorandum and the journal entry as `$#3200.50.' This was erroneous and was not called to the attention of the court until this motion was filed. Judgment nunc pro tunc is entered correcting those amounts in the memorandum and in the journal entry.
"The properties mentioned above and the property at 215 West 8th Street, which was valued at $7500.00 were all furnished rental properties. No evidence was introduced relative to the value of the furniture separate from the properties themselves, and it was assumed by the court that the values in evidence included the furniture. It was the judgment of the court at that time that the furniture in these properties go with the properties set over to the plaintiff and defendant. Judgment nunc pro tunc is entered that the furniture in each of these properties shall follow the properties in the division made.
*450 "The three properties mentioned constituted all of the property held by these parties by joint ownership or by tenancy in common, except the rental account in the bank which was disposed of in the journal entry filed February 24, 1953. It was the judgment of the court at that time that the properties at 112 East 2nd Street and 219 East 8th Street, valued at $6500.00 be set over to the defendant, and that the property at 215 West 8th Street, valued at $7500.00 be set over to the plaintiff. It was the further judgment, although that is not clear in the wording of the journal entry, that the difference of $1000.00 in the value of the joint properties, plus the $1000 from the country club mortgage owned by the defendant plus the 1948 Pontiac automobile owned by the defendant were set over to the plaintiff as her permanent alimony in lump sum. Judgment nunc pro tunc is entered in accordance with the preceding paragraph."
From that order appellant also appealed. In view of the trial court's remark on the hearing of the motion for a new trial it is clearly apparent an alimony judgment had been rendered although the journal entry neither reflected that fact nor what the court regarded as alimony. It is also inescapable that trial counsel for appellant knew from the proceedings on the hearing of his motion for a new trial what the court's alimony judgment actually was. Such counsel expressly stated at that time:
"... we object and find fault with the reasonableness of the allowance of the alimony...."
There can be no question concerning the fact that the figures pertaining to the value of the two properties awarded to appellee constituted merely a clerical error and that they were properly ordered corrected.
A journal entry purports to be a record of the judgment rendered but it is not necessarily the judgment actually rendered. (Tincknell v. Tincknell, 141 Kan. 873, 44 P.2d 212; Perkins v. Ashmore, 144 Kan. 540, 61 P.2d 888; Victory Life Ins. Co. v. Freeman, 145 Kan. 296, 299, 65 P.2d 559; Bush v. Bush, 158 Kan. 760, 150 P.2d 168; Hinshaw v. Hinshaw, 166 Kan. 481, 486, 203 P.2d 201.)
In the Tincknell case it was held:
"The proceedings considered in an action for divorce and alimony, in which the record disclosed a money judgment against plaintiff and in favor of defendant for $800, and held, the court was authorized to correct the record to show the judgment for $800 was for permanent alimony." (Syl. ¶ 1.) (Italics supplied.)
If the journal entry fails to accurately reflect the judgment actually rendered it is the duty of the court to make it speak the truth (State v. Linderholm, 90 Kan. 489, 135 P. 564; Bush v. Bush, supra, *451 p. 762, 763) and that may be done after the term in which the judgment is rendered (Cazzell v. Cazzell, 133 Kan. 766, 3 P.2d 479; Bush v. Bush, supra; Hinshaw v. Hinshaw, supra) even though it be fifty-five years thereafter. (Cazzell v. Cazzell, supra, p. 768; Bush v. Bush, supra, p. 763.) In the Cazzell case it was held:
"Where matters which are an essential part of a judgment are inadvertently omitted from its written text, with the effect that it does not fairly recite what the court intended, and perverts that intention, the omitted matter may be supplied and the journal entry of judgment corrected even after the close of the term, at the instance of an interested party.
"When a motion for an order nunc pro tunc is pending, the trial judge's personal recollection of the facts and circumstances under which the judgment was rendered and of the court's purpose and intention in rendering it has the probative force of evidence bearing on the propriety of granting or denying the motion presented for determination." (Syl. ¶¶ 2, 3.)
To the same effect are Schneider v. Schneider, 147 Kan. 621, 78 P.2d 16, and many other cases. Briefly stated, the purpose of a nunc pro tunc order is not to change or alter an order or judgment actually made. In other words its function is not to make an order now for then, but to enter now for then an order previously made. (Schneider v. Schneider, Bush v. Bush, Hinshaw v. Hinshaw, omnia supra.) The trial court did not err in making the journal entry speak the truth.
We are presently concerned only with alimony. It also may be well to observe that property owned by appellee and awarded to appellant, the wife, could be nothing other than alimony in a divorce action such as this in which the divorce is granted to the wife by reason of the fault or aggression of the husband. Alimony in this kind of action should not be confused with the latter part of G.S. 1949, 60-1511, which pertains to a division of property where a divorce is granted to the husband by reason of the fault or aggression of the wife. The first part of that statute, applicable here, pertains to alimony and provides:
"When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden or former name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable." (Our italics.)
*452 After having set aside to the wife, appellant, such property as the statute first directs, which was done here, the additional allowance made to the wife by the court could have been nothing other than alimony under the terms of the statute, whether it was expressly so designated or not. That part of the statute pertains only to alimony. It expressly provides alimony may be allowed to the wife in real or personal property, or both, as well as in the form of money. Here it was granted in the form of property. Of course, in order to avoid uncertainty it is well that the allowance be clearly designated as alimony in the journal entry of judgment. That was the purpose of the nunc pro tunc order in this case.
It also is observed the part of the statute pertinent to the facts of this case provides that where the divorce is granted to the wife the latter shall be allowed such alimony "as the court shall think reasonable, having due regard to the ... value of his real and personal estate at the time of said divorce...." Appellant's counsel contend this court has considered other factors than those especially designated in the statute in determining a proper alimony award. Assuming that is true such factors must find affirmative support in the record. We are limited on appeal to the facts contained in the particular record presented for review.
Although counsel for appellant concede their client is a trained nurse and has been engaged in that practice over a considerable number of years they direct attention to certain present physical handicaps. No doubt these facts and many others were considered by the trial court. Although the sufficiency of the alimony award might be debatable this court knows the trial court was in a far better position to obtain an accurate impression from the over-all facts and circumstances involved in the domestic life of the parties than this court can from cold abstracts of the record which seldom fully reflect important intangible factors.
The above statute vests the district court with wide judicial discretion in determining what it believes to be reasonable alimony under the facts of each particular case. Such discretion will not be disturbed on appeal unless it clearly appears from the entire record that its discretion has been abused. (Carlat v. Carlat, 168 Kan. 600, 602, 215 P.2d 200, and cases therein cited.) See, also, Hatcher's Kansas Digest, Divorce & Separation, §§ 50, 83, and West's Kansas Digest, Divorce, §§ 235, 286.
We deem it unnecessary to review the numerous cases furnished by the industry of appellant's counsel. Many of them contain facts *453 and circumstances not found in the instant record. On the basis of the limited facts disclosed by the record now presented to us we think we would not be justified in reversing the district court on the theory it abused its judicial discretion in determining the alimony it allowed.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1343955/ | 264 P.2d 993 (1953)
MODERN WOODMEN OF AMERICA, CAMP. NO. 6967 et al.
v.
TULSA MODERN WOODMEN BLDG. ASS'N et al.
No. 35031.
Supreme Court of Oklahoma.
September 22, 1953.
Rehearing Denied January 12, 1954.
*994 Raymon B. Thomas, Charles C. Liebler, and Harley W. Van Cleave, Tulsa, for plaintiffs in error.
Charles R. Fellows and Ray S. Fellows, Tulsa, for defendants in error.
WILLIAMS, Justice.
Parties are referred to herein as in the trial court.
On April 6, 1950, plaintiffs, the Modern Woodmen of America, Camp Number 6967, an Association, and Carl J. Ecker and Jess Admire, members thereof, allegedly authorized by the Association to bring suit in behalf of themselves, the association, and other members similarly situated, filed their petition in the case at bar against Tulsa Modern Woodmen Building Association, a Corporation, alleging, among other things, a state of facts substantially as follows: that defendant corporation was formed in 1932 for the purpose of holding in trust certain real property for the use and benefit of plaintiff association; that the only members of the defendant corporation were the trustees thereof; that by the terms of its articles of incorporation, defendant corporation was required to account to plaintiff association at least once each year; that defendant corporation, and the individual defendants as its trustees and directors, had refused to account to plaintiff for the funds and monies received by said corporation from its management and operation of the real property above referred to. The petition asked for the appointment of a receiver to hold said property in trust for plaintiff association, that the court order an audit of the books and records of defendant corporation, and for all other proper relief.
Defendants' answer included the affirmative defense of laches, and was unverified.
The testimony of plaintiffs' witnesses may be fairly summarized as follows:
Prior to 1932, plaintiff association had been renting quarters from another fraternal organization. During the last week of December, 1932, a representative of an Oklahoma City trust company approached Mr. Carl Poss (one of the individual defendants herein, president of defendant corporation and a member, as are all other individual defendants, of plaintiff association) with regard to a possible sale of Lots 5 and 6 in Block 1, Gillette Hall Addition to the City of Tulsa, and the subsequent use of a building on one of the lots by the plaintiff association for lodge purposes. Though this point is in dispute, it may fairly be inferred that Mr. Poss was approached in his capacity as a member of plaintiff association, since defendant corporation was not in existence at that time. Title to the described property was held in the names of a Mr. Gill and his wife, but the trust company held a mortgage on it and an assignment of rents. Mr. Poss consulted other members of the plaintiff association, including the clerk thereof, and it developed that plaintiff association, under its charter and by-laws, was unable to hold title to real estate. There was also disputed evidence to the effect that Mr. Poss and his group were acting as a committee which had been appointed by plaintiff association to look into the possibility of acquiring a building for lodge purposes.
On December 31, 1932, articles of incorporation of defendant corporation were filed pursuant to 18 Ohio St. 1951 § 542 et seq. with the Secretary of State. On the same day Mr. Gill and his wife executed a deed in Oklahoma County transferring title to the *995 real estate to defendant corporation, and the deed was filed for record in Tulsa County.
This deed was unusual in many respects. The recited consideration was "one dollar and other valuable considerations", and no internal revenue stamps were attached. Beyond the nominal recited consideration, defendant corporation was not obliged to pay anything, and it was specifically exempted from liability in case of a deficiency judgment upon possible foreclosure of the mortgage. The land was of course conveyed subject to the outstanding mortgage and assignment of rents in favor of the trust company. Grantee's use of the property was restricted to benevolent and charitable purposes, and it was provided that grantee could not alienate or encumber the property in any way without the prior written consent of the mortgagee (trust company). There was a provision for reversion of title to Gill and his wife in the event of the violation of any of the many conditions and restrictions contained in the deed.
Shortly after taking title to the property, defendant corporation applied to the County Excise Board to have the building taken off the tax rolls. At the hearing in connection therewith, Mr. Poss testified under oath that the corporation had been formed "in connection with the Modern Woodmen". Although the trial court refused to permit the introduction in evidence of the entire transcript of testimony before the Excise Board, it is apparent from that part in the record that the request for tax exemption was granted as to part of the property because it was considered to be lodge property. It is highly doubtful that the tax exemption could have been obtained otherwise, since defendant corporation's by-laws and articles of incorporation, taken together, contain provisions that the purpose of the corporation is to provide benevolent and charitable services in behalf of its members, and that membership shall be restricted to the members of the Board of Trustees. See County Assessor, Oklahoma County, v. United Brotherhood of Carpenters & Joiners, 202 Okl. 162, 211 P.2d 790, wherein this court held that an association conducted only for the mutual benefit of its own members was not a benevolent association entitled to exemption from taxation.
In 1941, a new contract was made between the parties, by the terms of which defendant Corporation deeded Lot 5 back to Gill, and Gill agreed to accept $5,000 in cash and $10,000 in semiannual payments of $500 each in full satisfaction of the debt as to Lot 6, on which the lodge building was situated. At this time, all conditions and restrictions were removed. The $5,000 was advanced by plaintiff association, and although defendant corporation now contends that this was a loan and seeks to pay it back, the weight of the evidence adduced by plaintiff is to the effect that it was really a payment on property purchased for plaintiff association. At this time this transaction was approved at a call meeting of plaintiff association, defendant corporation's by-laws provided that all income from the building should be paid into a "sick fund" of plaintiff association; shortly thereafter the by-laws were changed and this provision was left out, in order that payments on the building debt might be made by defendant corporation, which earned money by renting part of the building and promoting weekly dances for the general public.
It is to be noted that after this amendment in its by-laws (which could have been enacted at any time) defendant corporation, by the terms of its by-laws and articles of incorporation, was not bound in any way to plaintiff association, and owed it no obligation whatsoever. If the contentions of defendant corporation herein are upheld, it could logically and legally break away entirely from plaintiff association and adopt any other charitable purpose it might choose as the object of its beneficence.
Since 1941, all of the rest of the purchase price has been paid, and the building is now free of encumbrance. Since the payment of the debt, defendant corporation has refused to transfer funds representing income from the building to plaintiff association, apparently desiring to set up certain conditions and restrictions as to how such funds shall be used after the transfer.
At the conclusion of plaintiffs' evidence, defendants' demurrer to the evidence was sustained and the cause dismissed, and *996 plaintiffs have duly appealed. One of the allegations of error is error in sustaining the demurrer. Since we deem this proposition to be controlling, we will not consider herein the other arguments advanced.
The grounds of the demurrer to the evidence were that "same is insufficient to prove any of the causes of action mentioned in the petition and the amended petition and reply, and for the further reason that same is insufficient to disclose a proper party plaintiff or to disclose any trust in and to the property involved in this law suit".
We take note of the following rules:
"In a case of equitable cognizance, where a demurrer to the evidence of plaintiff is offered, the court should treat it as a motion for judgment in favor of defendant upon the testimony offered by the plaintiff, and should weigh the testimony introduced by the plaintiff, and, after so doing, may enter its judgment thereon." Beverly Hills National Bank & Trust Co. v. Martin, 185 Okl. 254, 91 P.2d 94.
"In an equity case it is the duty of this court to weigh the evidence, and if the judgment of the trial court is against the clear weight thereof, the judgment will be reversed." Embry v. Villines, 175 Okl. 552, 53 P.2d 277, 278.
A careful examination of the evidence of plaintiff in this case convinces us that the weight thereof is decidedly in favor of plaintiff, and that plaintiffs did prove, prima facie, a cause of action against defendants. We cannot believe, from the evidence, that plaintiff association herein would have participated in the creation of a benevolent and charitable corporation which could have divorced itself entirely from plaintiff association at any time, even after the investment by plaintiff association of $5,000 in property held by the corporation. Also, the facts that plaintiff association had considered the acquisition of a building for some time before the purchase here concerned, and that actual negotiations began before defendant corporation even came into being; both indicate that a trust relationship was contemplated.
The other ground of the demurrer (that the evidence "does not disclose a proper party plaintiff") is also without merit. In their brief, defendants contend that the plaintiff association does not have the capacity to sue, and that the individual plaintiffs were not authorized to sue on behalf of the association. As to the second contention, we have heretofore noted that defendants' answer was not verified; also, no demurrer to the petition was filed. Under the terms of 12 Ohio St. 1951 § 286, defendants therefore have waived whatever such objection they might have had and the allegations as to authority of individual plaintiffs to sue in behalf of the association and other members thereof similarly situated is "taken as true." Such being the case, defendants' first contention above (that plaintiff association had no legal capacity to sue) is immaterial, since it makes no practical difference whether the judgment is rendered as to the plaintiff association itself, or as to individual plaintiffs suing in behalf of the association and other members thereof.
In their brief, plaintiffs urge this court to follow the rule announced in In re Ho-Tah-Moie's Estate, 200 Okl. 532, 198 P.2d 638, 639 and "render, or cause to be rendered, such judgment and decree as the trial court should have rendered", and to make a final determination of this case. An examination of many of the cases wherein such rule is cited reveals that it is rarely followed in cases which reach this court on appeal from a judgment rendered pursuant to an order sustaining defendant's demurrer to the evidence, or other circumstances under which defendant has had no opportunity to present his case-in-chief. Under the facts in the case at hand, we do not believe it would serve justice to follow such rule here.
The suggestion might be made that plaintiff association cannot qualify as a cestui que trust, since it is neither a person nor a legal entity, 65 C.J., Trusts, sec. 24 (3) and that it should not be allowed to hold the beneficial interest in that to which it cannot hold legal title. While this is the general rule, the following exception prevails in Oklahoma:
"To avoid the inconveniences resulting from the incapacity of a voluntary *997 association to take and hold property as an organization, conveyances may be made to trustees for the use and benefit of the association or its members. * * *" 7 C.J.S., Associations, § 14.
See Richardson v. Harsha, 22 Okl. 405, 98 P. 897, 905, wherein this court said with regard to an "unincorporated voluntary association":
"As such an association, while it may not hold real property in its name, it has the power to appoint trustees in whom title to such real property as it may own may be vested."
See also 4 Am.Jur., Associations and Clubs, sec. 36, which reads in part:
"* * * Also, it is clear that an unincorporated association may take as cestui que trust. * * *"
The judgment of the trial court is therefore reversed with directions to grant plaintiff a new trial.
HALLEY, C.J., JOHNSON, V.C.J., and WELCH and BLACKBIRD, JJ., concur.
CORN, DAVISON, ARNOLD and O'NEAL, JJ., dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2758296/ | Case: 13-30294 Document: 00512860820 Page: 1 Date Filed: 12/08/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30294, United States Court of Appeals
consolidated with Nos. 13-30721 & 13-30748 Fifth Circuit
FILED
December 8, 2014
Nos. 13-30294 & 13-30721 Lyle W. Cayce
Clerk
SUNDOWN ENERGY, L.P.,
Plaintiff-Appellant,
v.
STEVEN G. HALLER; FLASH GAS & OIL SOUTHWEST,
INCORPORATED,
Defendants-Appellees.
Consolidated with No. 13-30748
SUNDOWN ENERGY, L.P.,
Plaintiff-Appellee,
v.
STEVEN G. HALLER; FLASH GAS & OIL SOUTHWEST,
INCORPORATED,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
Case: 13-30294 Document: 00512860820 Page: 2 Date Filed: 12/08/2014
This consolidated appeal arises from a dispute between Steven G. Haller
and Flash Gas & Oil Southwest, Inc. (collectively, “Defendants”) and Sundown
Energy LP (“Sundown”) regarding the terms of a settlement agreement.
Sundown sued Defendants in state and federal court, seeking a partition of
land they co-owned, return of rental payments, and a right of way over Haller’s
property. On the day trial was set to begin in federal court, the parties agreed
to a settlement. Because the parties had not yet agreed on a written draft of
the settlement, the agreement was read into the record before the district
court. However, subsequently, the parties were unable to agree on the terms
of the settlement. In the first appeal, No. 13-30294, Sundown challenges the
district court’s interpretation of the settlement agreement. In the second
appeal, No. 13-30721, Sundown contests the district court’s enforcement of the
settlement. Lastly, in No. 13-30748, Defendants appeal the district court’s
denial of their motion for contempt. For the reasons stated herein, we
REVERSE in part and AFFIRM in part.
I.
Sundown owns an oil and gas production facility in Plaquemines Parish,
Louisiana. Although Sundown could access its facility via the Mississippi
River, it did not have a viable land route. Sundown thus sought permission
from landowners with property between its facility and the nearest public
highway—Louisiana Highway 39—to cross their property. 1 Haller owns one
of the tracts of land between Sundown’s facility and Highway 39 (“Haller
Tract”). Located on the Haller Tract is a camp used by Haller and his guests
for hunting and fishing. Levee Leisure, Inc. (“Levee Leisure”), a company
Haller owns, possesses a surface lease on a contiguous tract of land. Flash Gas
& Oil Southwest, Inc. (“Flash Gas”), another company owned by Haller, leased
1 Another highway is technically closer; however, it does not present a feasible option
for a land route.
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the Haller Tract from Haller and the surface lease from Levee Leisure. Unlike
the majority of the landowners Sundown contacted, Haller refused to grant
Sundown permission to cross his property. 2
In 2006, Sundown entered into a lease (“Flash Lease”) with Flash Gas
for the use of a dock facility and canal access on land allegedly owned by
Defendants. The lease also permitted Sundown to use a road on the Haller
Tract to reach the dock and its facility. In 2010, Haller refused to renew the
Flash Lease.
II.
Once it became apparent that Sundown would be unable to reach an
agreement with Haller, Sundown filed suit against Haller in federal court,
requesting a right of passage over the Haller Tract and return of the rental
payments it made to Flash Gas pursuant to the Flash Lease. 3 Sundown
claimed that its facility was an “enclosed estate” under Louisiana Civil Code
article 689 and thus entitled to a right of passage. Sundown also filed suit in
state court, seeking a partition by licitation of land co-owned by Haller and
Sundown.
In federal court, Defendants filed a motion to dismiss Sundown’s suit,
which the district court denied, and Sundown filed a motion for summary
judgment, which the district court granted in part. The court found that
Sundown’s facility was an enclosed estate but that there were genuine issues
of material facts precluding summary judgment on, inter alia, the location of
the right of way for Sundown. Defendants later filed a motion for summary
judgment regarding Sundown’s claim for return of rental payments. The
2 Initially, one other landowner refused to permit Sundown to cross; however; that
landowner agreed to a settlement with Sundown.
3 Sundown alleges that it discovered that neither Flash Gas nor Haller owned the
property subject to the Flash Lease.
3
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No. 13-30294 cons. w/ 13-30721 & 13-30748
district court granted the motion, holding that Sundown could not recover its
rental payments because it had undisturbed possession of the land. Before a
trial was held, however, the parties agreed to a settlement resolving both the
federal suit and state suit.
The parties read the terms of the settlement agreement to the district
court. They agreed on the location for the route Sundown would use to access
its facility. Sundown was entitled to use this route regardless of which party
owned the land in dispute. Sundown was also granted a temporary right of
way by Haller to access the dock. In addition, Sundown would obtain bids for
the cost of building the road to its facility. 4 Moreover, Haller agreed to not
object to Sundown’s acquisition of any permits or approvals necessary for
construction. The parties also agreed to participate in an auction for “the
other’s co-ownership interest in Tracts 1 and 2 with the high bidder paying its
bid price to purchase the other’s interest in both tracts.” If Sundown had the
winning bid, it would grant a ninety-nine year recreational lease to Haller.
The parties agreed to dismiss the federal and state suits and pay their
respective costs. The parties’ attempts to formulate a written contract
memorializing the terms of their agreement were unsuccessful. Subsequently,
both parties filed cross-motions for enforcement of the settlement agreement,
urging the district court to adopt their respective interpretations of the
settlement.
The district court therefore interpreted the provisions of the settlement
read into the record and filled in the gaps necessary for enforcement of the
settlement. Because the settlement agreement did not specify how the auction
proceeds were to be disbursed, the district court held that the magistrate judge
4 Depending on the route and cost of building the road, Haller would pay Sundown a
portion of the cost.
4
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No. 13-30294 cons. w/ 13-30721 & 13-30748
(“MJ”) would have discretion to resolve that issue. However, the court noted
its preference that the MJ use the approach advocated by Haller if the parties
did not dispute their respective ownership interests—that is, the winning
bidder would pay the portion of the bid corresponding to the party’s ownership
interest in the auctioned property. As for the duration of the right of way, the
court noted that the agreement described it as temporary and thus imposed
what it considered to be a reasonable period of time—nine months. 5
The district court also held that, if it was the losing bidder, Sundown
would no longer be entitled to use the dock facility. The court was persuaded
by “the absence of any provisions in the settlement agreement addressing
Sundown’s lease of the dock in the event it is not the high bidder.” 6 In addition,
the court held that Haller was entitled to hunt and “store fuel on the property
subject to the recreational lease.” After noting that recreational leases in
Louisiana usually permit lessors “to lease the property for oil, gas, and mineral
exploration,” the court held that Sundown had that right subject to the
following conditions: 1) it must try to use directional drilling; 2) if directional
drilling is not feasible, then the parties must submit to arbitration; and 3)
Sundown must give Haller notice when it desires to use the property for
mineral, gas, or oil exploration purposes. Additionally, the court held that
Haller must pay his portion of the construction costs within ten days of
receiving a bill for the construction from Sundown.
The district court then instructed the MJ to conduct the auction. 7 The
MJ conducted the auction, and Haller submitted the highest bid—$1.5 million.
Thereafter, the district court, adopting the MJ’s recommendation, ordered
5 The court noted, however, that this time could be changed if Sundown experienced
construction delays that were beyond its control.
6 Conversely, the settlement agreement stated that Sundown would have access to the
dock facility if it was the high bidder.
7 Sundown appealed this ruling, but the appeal was dismissed as premature.
5
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Sundown to sell its ownership interest in the auctioned land to Haller.
Sundown timely appealed.
After the district court approved the auction, Sundown refused to
consummate the sale of the auctioned land. Defendants proceeded to file a
motion for enforcement of judgment, which the district court granted.
Sundown timely appealed the court’s judgment. In its order enforcing the
parties’ settlement agreement, the district court held, inter alia, that “if the
platform, lights, and other structures are incorporated into the tract of land,
i.e., attached to the property by any means, th[e]n those items are component
parts of the land and therefore immovable and are not subject to removal,
except by the owner of the property.”
Meanwhile, Sundown removed the loading platform located on the
auctioned land. Defendants filed a motion for contempt, alleging that
Sundown was not entitled to remove the platform. After holding an
evidentiary hearing, the district court denied the motion. The district court
reasoned that the platform constituted movable property, Sundown retained
title to the platform, and the Flash Lease was invalid. Defendants timely
appealed.
We will first address Sundown’s appeal of the district court’s
interpretation of the settlement agreement and then proceed to the district
court’s enforcement of the settlement agreement. Lastly, we will turn to
Defendants’ appeal of the district court’s denial of their motion for contempt.
III.
A.
“Although federal courts possess the inherent power to enforce
agreements entered into in settlement of litigation, the construction and
enforcement of settlement agreements is governed by the principles of state
law applicable to contracts generally.” E. Energy, Inc. v. Unico Oil & Gas, Inc.,
6
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No. 13-30294 cons. w/ 13-30721 & 13-30748
861 F.2d 1379, 1380 (5th Cir. 1988) (citations and internal quotation marks
omitted). We therefore apply Louisiana law to interpret the settlement
agreement.
The parties dispute the proper standard of review. Sundown argues that
the de novo standard applies because settlement agreements are interpreted
like contracts and Louisiana law considers issues of contract interpretation
and any corresponding ambiguity to be questions of law. Sundown
acknowledges that the clear error standard would apply if the district court
found the settlement agreement to be ambiguous but argues that the clear
error standard is inapplicable because there is no ambiguity. Conversely,
Defendants argue that the manifest error standard applies because the district
court’s decision concerned the validity and extent of the parties’ settlement
agreement. The manifest error standard is also applicable, Defendants
contend, because the settlement agreement was ambiguous.
“Of course, we, not the parties, determine our standard of review.” See
United States v. Clark, 89 F. App’x 453, 456 (5th Cir. 2004) (per curiam)
(unpublished) (citing United States v. Herrera, 313 F.3d 882, 885 n.* (5th Cir.
2002) (en banc)). That said, the existence and validity of the settlement
agreement are not at issue. Instead, the parties dispute the terms of the
settlement. Whether the settlement agreement is ambiguous is a legal
question. See Kenner Fire Fighters Ass’n Local No. 1427 v. City of Kenner, 09-
129, p. 5 (La. App. 5 Cir. 9/29/09); 25 So. 3d 147, 150. The district court’s
factual findings “are not to be disturbed unless manifest error is shown.” Id.
(citation omitted); see also Gebreyesus v. F.C. Schaffer & Assocs., 204 F.3d 639,
642 (5th Cir. 2000).
B.
7
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No. 13-30294 cons. w/ 13-30721 & 13-30748
Contracts are interpreted based on the parties’ intent. Prejean v.
Guillory, 2010-0740, p. 6 (La. 7/2/10); 38 So. 3d 274, 279. “The reasonable
intention of the parties to a contract is to be sought by examining the words of
the contract itself, and not assumed.” Id. at 279. If the contract is
unambiguous and does not have absurd consequences, we apply the ordinary
meaning of the contractual language. Id. Moreover, we may not ignore an
unambiguous contractual provision simply because, in our view, it does not
align with the parties’ intent. Id. Rather, we must interpret “[e]ach provision
in a contract . . . in light of the other provisions so that each is given the
meaning suggested by the contract as a whole.” La. Civ. Code art. 2050. If the
contract is ambiguous, however, we may resort to parol evidence to interpret
the contract. Doyal v. Pickett, 628 So. 2d 184, 187 (La. Ct. App. 2d Cir. 1993).
“Any doubtful provisions must be interpreted in light of the nature of the
contract, equity, usages, the conduct of the parties before and after the
formation of the contract, and other contracts of a like nature between the
same parties.” Id.
C.
On appeal, both parties advance conflicting interpretations of the
settlement agreement. Indeed, their disagreement is such that it calls into
question the validity of the settlement agreement. See Crawford v. United
Serv. Auto. Ass’n, 2003-2117, p. 5 (La. App. 1 Cir. 3/24/05); 899 So. 2d 668, 671
(“A compromise is valid only if there is a meeting of minds between the parties
as to exactly what they intended at the time the compromise was reached.”).
Nonetheless, upon reviewing the record, we are convinced that the parties
agreed to a settlement, albeit not the version ultimately enforced by the district
8
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No. 13-30294 cons. w/ 13-30721 & 13-30748
court. 8 See Klebanoff v. Haberle, 43, 102, p. 11 (La. App. 2 Cir. 3/19/08); 978
So. 2d 598, 604 (noting that disagreement over “incidental matters” does not
preclude a finding that the parties entered into a compromise).
Although Sundown raises a number of arguments contesting the district
court’s interpretation of the settlement agreement, Sundown’s arguments
largely revolve around two alleged errors. First, Sundown contends that the
district court erred by ignoring the clear and unambiguous terms of the
settlement agreement. Second, Sundown argues that the district court’s
interpretation contravened the parties’ intent. We agree that the version of
the settlement interpreted by the district court conflicts with the terms read
into the record by the parties.
Because the terms of the settlement agreement are controlled by the
parties’ intent, see Prejean, 38 So. 3d at 279, we will first examine the
agreement read into the record. It is clear that the parties agreed on the route
Sundown would use to access its facility. Sundown was to use this path to
access the dock as well if it acquired the auctioned property. The parties also
specified alternative routes for Sundown depending on whether Sundown
would need a permit before beginning construction on the road. Haller agreed
to not impede Sundown’s ability to acquire any permits necessary to fulfill the
settlement. In addition, the parties stated that Sundown would begin
construction as soon as some preliminary matters were handled. Sundown was
also obligated to get at least two separate bids for the different routes.
Depending on the route selected, Haller agreed to pay Sundown a portion of
the cost.
8 Several times during their recitation of the settlement agreement, the parties
repeatedly stated that they had reached a settlement.
9
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No. 13-30294 cons. w/ 13-30721 & 13-30748
The parties agreed that they “would bid against each other in a
mandatory buy/sell to purchase the other’s co-ownership interest in [the
auctioned property] with the high bidder paying its bid price to purchase the
other’s interest in both tracts.” This auction was to occur within thirty days of
the parties executing the settlement documents. Although the parties had not
agreed on all of the details of the auction, they agreed that the “mandatory
buy/sell” would operate like an open auction and the high bidder would own
the land. If Haller won the auction, Sundown agreed to use a right-of-way to
reach its facility and would not own the dock. Conversely, if Sundown was the
highest bidder, it would use the agreed-to-route to access its facility and the
dock. In addition, Sundown would give Haller a ninety-nine year recreational
lease for a specified area. Lastly, the parties agreed to dismiss the state suit
and other pending claims and pay their respective costs.
Here, the district court erred by imposing several terms which either
conflicted with or added to the agreement read into the record by the parties.
Although the parties gave the district court the authority to enforce and
interpret the settlement agreement, the district court did not have the power
to change the terms of the settlement agreed to by the parties. In addition to
the above terms, the district court imposed a nine-month time limit on
Sundown’s use of the right-of-way 9 and gave Haller the right to review
estimates for the costs of the road to be constructed by Sundown. The district
court also mandated that Haller pay his portion of the construction costs within
ten days of receiving the bill. As for the auction, the district court stated that
the highest bidder would pay the other party the amount of the bid price
corresponding to the party’s ownership interest. Moreover, the district court
9 If Sundown needed additional time and was not at fault for the delay in the
construction, the district court held that Sundown could petition the court for additional time.
10
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No. 13-30294 cons. w/ 13-30721 & 13-30748
found that Haller’s ninety-nine year recreational lease encompassed the right
to hunt and store fuel on the property and that Sundown would retain the right
to lease the property for oil, gas, and mineral exploration with some
restrictions.
Although the district court did an admirable job of resolving the disputes
between the parties, the court overstepped its authority when it added
provisions to the settlement agreement. See Prejean, 38 So. 3d at 279
(“Accordingly, when a clause in a contract is clear and unambiguous, the letter
of that clause should not be disregarded under the pretext of pursuing its spirit
. . . .”). “A compromise settles only those differences that the parties clearly
intended to settle . . . .” Klebanoff, 978 So. 2d at 605. When limited to the terms
recited to the district court, it is apparent that the settlement agreement does
not resolve every dispute which could potentially arise. However, that is not
required. See Walk Haydel & Assocs. v. Coastal Power Production Co., 98-0193,
p. 4 (La. App. 4 Cir. 9/30/98); 720 So. 2d 372, 374 (noting that a settlement
agreement is enforceable although it “may encompass less than all the issues
between the parties”). Accordingly, we hold that the district court erred when
it interpreted the settlement agreement to include those items not mentioned
during the parties’ oral recitation of the settlement agreement. The district
court should have found the settlement agreement to encompass only those
matters expressly stated by the parties.
IV.
A.
Sundown’s arguments challenging the district court’s enforcement of the
settlement agreement mirror its arguments regarding the district court’s
interpretation of the agreement. Essentially, Sundown argues that the district
court abused its discretion by enforcing a settlement agreement that did not
conform to the parties’ agreement.
11
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No. 13-30294 cons. w/ 13-30721 & 13-30748
B.
We review a district court’s decision to enforce a settlement agreement
for an abuse of discretion. Quesada v. Napolitano, 701 F.3d 1080, 1083 (5th
Cir. 2012). “A district court abuses its discretion if it (1) relies on clearly
erroneous factual findings; (2) relies on erroneous conclusions of law; or (3)
misapplies the law to the facts.” Del Bosque v. AT&T Adver., LP, 441 F. App’x
258, 260 (5th Cir. 2011) (unpublished) (per curiam) (citation and internal
quotation marks omitted). Any factual determinations the district court makes
when deciding whether to enforce a settlement agreement are subject to the
clear error standard. Deville v. U.S. ex rel. Dep’t of Veterans Affairs, 202 F.
App’x 761, 762 (5th Cir. 2006) (unpublished) (per curiam).
C.
As we stated earlier, the district court erred in its interpretation of the
parties’ settlement agreement. The district court thus enforced a settlement
agreement which differed from the actual agreement read into the record by
the parties. We therefore hold that the district court abused its discretion
when it enforced the settlement agreement. See Middlebrooks v. Int’l Indem.,
95-1364, p. 8 (La. App. 3 Cir. 3/6/96); 670 So. 2d 740, 744 (holding that trial
court erred when it imposed a requirement on a party not aligning with the
settlement agreement).
V.
A.
Lastly, Defendants challenge the district court’s denial of their motion
for contempt. In its order enforcing the parties’ settlement agreement, the
district court held, inter alia, that “if the platform, lights, and other structures
are incorporated into the tract of land, i.e., attached to the property by any
means, th[e]n those items are component parts of the land and therefore
immovable and are not subject to removal, except by the owner of the
12
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No. 13-30294 cons. w/ 13-30721 & 13-30748
property.” Relying on testimony by Mr. McGuire, the vice-president and
general counsel for Sundown, the district court found that the “platform was
simply placed over two pilings and could be removed by lifting the pilings.”
The court also found that “[t]he pediments or pedestals simply rested on the
ground and did make a hole but there were no steel pilings.” Moreover, the
court held that Sundown retained title to the platform and the Flash Lease
was invalid. 10
Defendants claim that because the platform was immovable, Sundown
violated the district court’s order when it removed the loading platform from
the dock. Defendants also argue that Sundown no longer possessed a right to
the loading platform under the Flash Lease. In addition, the district court
erred, Defendants contend, by holding that they lacked title to the loading
platform and that the Flash Lease was invalid. Defendants allege that these
rulings contradicted the district court’s prior finding that the lease was binding
irrespective of whether Defendants had title to the property. Defendants also
argue that Sundown’s status as a co-owner of the disputed land did not give it
permission to remove the platform.
B.
A district court’s decision to deny a motion for contempt is reviewed for
abuse of discretion. Piggly Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries,
177 F.3d 380, 382 (5th Cir. 1999). We review the district court’s factual
findings for clear error and its legal conclusions de novo. Am. Airlines, Inc. v.
Allied Pilots Ass’n, 228 F.3d 574, 578 (5th Cir. 2000). The classification of an
10 Under the Flash Lease, Defendants had sixty days to remove their possessions from
the leased property before it became the property of the lessor, Flash Gas. Haller argued
below that this sixty-day time period had expired and Sundown was thus prohibited from
removing the platform under the lease.
13
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No. 13-30294 cons. w/ 13-30721 & 13-30748
item as movable or immovable is reviewed de novo. Bayou Fleet P’ship v. Dravo
Basic Materials Co., 106 F.3d 691, 693 (5th Cir. 1997).
C.
To establish civil contempt, the moving party must prove by clear and
convincing evidence that a party violated “a definite and specific order of the
court requiring him to perform or refrain from performing a particular act or
acts with knowledge of the court’s order.” Travelhost, Inc. v. Blandford, 68
F.3d 958, 961 (5th Cir. 1995) (citation and internal quotation marks omitted).
The moving party has presented sufficient evidence if it “produces in the mind
of the trier of fact a firm belief or conviction . . . so clear, direct and weighty
and convincing as to enable the fact finder to come to a clear conviction, without
hesitancy, of the truth of precise facts of the case.” Hornbeck Offshore Servs.
v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (citation and internal quotation
marks omitted).
“Tracts of land, with their component parts, are immovables.” La. Civ.
Code art. 462. Under Louisiana Civil Code article 463, “Buildings, other
constructions permanently attached to the ground, standing timber, and
unharvested crops or ungathered fruits of trees, are component parts of a tract
of land when they belong to the owner of the ground.” When determining
whether an item falls within the scope of article 463, “Louisiana courts
generally rely on three criteria: the size of the structure, the degree of its
integration or attachment to the soil, and its permanency.” Bayou Fleet P’ship,
106 F.3d at 693–94.
14
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D.
As an initial matter, we disagree with Sundown’s argument that
Defendants’ notice of appeal is insufficient. In the notice, Defendants
challenge the district court’s denial of their motion for contempt. 11
We hold that the district court correctly denied Defendants’ motion for
contempt. Sundown only violated the district court’s order if the loading
platform was immovable. For example, in Bayou Fleet Partnership, we found
that a limestone working base was immovable property under Article 463. 106
F.3d at 694. The base was “massive in size” and had been undisturbed for a
significant period of time. Id. Moreover, the base was sufficiently attached to
the property because it “actually formed the surface level of the property” and
heavy machinery was required to dig the base out of the ground. Id.; see also
Smith v. Arcadian Corp., 95-87, p. 6 (La. App. 3 Cir. 5/31/95); 657 So. 2d 464,
467 (finding that a reactor was immovable when it was attached to the land
with concrete, connected to other equipment with pipes, and attached to a
building with steel). Conversely, stockpiles of limestone were movable
property despite their massive size because they lacked sufficient attachment
and permanence. Bayou Fleet P’ship, 106 F.3d at 694.
The district court correctly found that the loading platform at issue is
not immovable. Although the platform is substantial in size and was only
moved after litigation commenced between the parties, the platform was not
permanently attached to the property. Rather, it “was simply placed over two
pilings.” Moreover, Sundown was able to remove it by lifting the platform from
the pilings. In fact, the platform did not lose any of its utility after Sundown
11 Sundown also alleges that Defendants failed to argue below that the Flash Lease
prohibited the removal of the loading platform. To the extent that Sundown is attempting to
make a waiver argument, we are not persuaded. Defendants raised the issue of the Flash
Lease to the district court and, thus, preserved their argument on appeal.
15
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No. 13-30294 cons. w/ 13-30721 & 13-30748
moved it; Sundown used the platform at another location. The pilings were
dug into the ground; however, that fact does not demonstrate sufficient
attachment to classify the platform as immovable. Ultimately, Defendants
have failed to demonstrate that the district court clearly erred in its factual
findings.
Contrary to Defendants’ argument otherwise, the district court’s denial
of the motion for contempt did not contradict an earlier ruling. The district
court’s earlier ruling did not state that the Flash Lease was valid. Rather, the
district court merely stated that, under Louisiana law, Sundown could not
recover the rent it paid under the lease regardless of whether Defendants
actually owned the leased property. This ruling hinged on Sundown’s
uninterrupted possession of the leased property, not the validity of the lease.
VI.
For the above-stated reasons, we REVERSE in part and AFFIRM in part
the judgment of the district court.
16
Case: 13-30294 Document: 00512860820 Page: 17 Date Filed: 12/08/2014
No. 13-30294 cons. w/13-30721 & 13-30748
JAMES L. DENNIS, Circuit Judge, concurring in part, dissenting in part:
I respectfully concur in part in, and dissent in part from, the majority
opinion.
Like the majority, I conclude that the parties entered into a valid
settlement and compromise, but I disagree with the majority’s conclusion that
the district court erred in interpreting and enforcing the parties’ agreement
with respect to the partition of the lands that they co-owned.
In my view, the district court ultimately and correctly concluded that the
parties entered a compromise in open court by which they agreed to partition
Tracts 1 and 2, which they owned in indivision, by sale to the highest bidder
at a nonpublic auction between only the co-owners. The parties thereby
implicitly agreed that the sale proceeds would be divided between the co-
owners in proportion to their shares, consistent with a partition by licitation
provided for by Louisiana Civil Code article 811. 1
The parties’ conduct and the very language of their compromise reveal
that they intended to conduct the auction and distribute the proceeds of the
sale as ordered by the district court. Before their compromise, Sundown was
suing Haller for a partition by licitation of Tract 1 in state court because
Sundown believed that Tract 1 was not susceptible to partition “in kind.” The
parties’ compromise recited in open court expressly contained all of the
elements of a partition by licitation of Tracts 1 and 2 as provided for by La.
Civ. Code art. 811, except for the proviso that “the proceeds shall be distributed
1 See La. Civ. Code art. 811, Revision comment (b): “Partition by licitation is a sale of
a thing held in indivision, with the proceeds of the sale divided among the co-owners in
proportion to their shares. If the sale of the thing to a third person is excluded by previous
agreement, an auction is conducted among the co-owners.”
17
Case: 13-30294 Document: 00512860820 Page: 18 Date Filed: 12/08/2014
No. 13-30294 cons. w/13-30721 & 13-30748
to the co-owners in proportion to their shares.” However, the parties did not
explicitly state how the proceeds would be divided or that they would not be
divided proportionately as per La. Civ. Code art. 811. Subsequently, the
parties participated in an auction between themselves, and they expressed at
the auction their mutual understanding that (1) their co-ownership of Tracts 1
and 2 was divided as follows: Haller 57% and Sundown 43%; (2) they were
bidding on the total purchase price to be paid in; and (3) the highest bid amount
would be distributed according to the proportionate share owned by each co-
owner.
Furthermore, Sundown does not anywhere in its briefs set forth or
explain any other reasonable interpretation of the parties’ compromise that
they recited in open court and that they carried out by their conduct towards
each other at the auction. Sundown seems to suggest that the parties agreed
to a different auction scenario by which each party would bid only for the other
party’s interest in the two tracts. Even if each party had tried to restrict its
bid to what it would pay for the other party’s interest, however, each bid would
have had to be translated into the total purchase price for the entirety of the
two tracts in order to determine who had made the highest bid at the end of
the auction, and to give the winning bidder credit for the value of the
percentage of the property it already owned. Conducting the auction in the
roundabout fashion suggested by Sundown therefore would not have changed
the result. 2 The way the parties and the magistrate judge proceeded by having
2 As the magistrate judge explained, there was no other logical, reasonable way to
distribute the proceeds than to distribute based on the undisputed percentage ownership
interests. Any other distribution scheme would “alter[] Haller’s substantive property rights
by effectively pretending that he never had an ownership interest in the two tracts at
all. . . . Were a third party to have purchased the two tracts, Haller would be entitled to
18
Case: 13-30294 Document: 00512860820 Page: 19 Date Filed: 12/08/2014
No. 13-30294 cons. w/13-30721 & 13-30748
each party submit its bid in turn as a person bidding on the total purchase
price of the two tracts was consistent with the Civil Code and a reasonable
interpretation of what the parties recited in open court in their compromise
and carried out in their conduct at the auction. Therefore, I have difficulty in
finding any persuasiveness in Sundown’s argument that the parties agreed to
something different from what amounts to a partition by licitation as defined
by La. Civil Code art. 811 rev. cmt. (b).
Under the undisputed facts and circumstances here, applying the
appropriate Civil Code principles, I see no legal error in the manner in which
the district court conducted the auction or enforced its result. La. Civil Code
art. 1768 provides: “Conditions may be either expressed in a stipulation or
implied by the law, the nature of the contract, or the intent of the parties.” The
district court, like a Louisiana court that applies the Civil Code concepts and
rules by second nature in interpreting parties’ contracts, correctly found that
the parties here who agreed to a compromise settling a lawsuit that sought a
partition by licitation of Tract 1, 3 by holding a non-judicial auction of Tracts 1
and 2 between themselves and excluding third persons, implicitly intended—
by the nature of the compromise and its close resemblance to a partition by
licitation—that the proceeds of the sale would be divided among the co-owners
in proportion to their shares.
57.7% of the sale amount. That percentage of ownership does not change simply because the
only two bidders at the auction for the property were the parties to th[e] lawsuit.”
3 If Sundown had succeeded in its state court suit, Tract 1 would have been partitioned
by licitation; that is, it would have been sold by public auction to the highest bidder, with the
proceeds divided between the co-owners, Sundown and Haller, in proportion to their shares.
See La. Civ. Code art. 811, Revision Comment (b).
19
Case: 13-30294 Document: 00512860820 Page: 20 Date Filed: 12/08/2014
No. 13-30294 cons. w/13-30721 & 13-30748
Because an extrajudicial or non-judicial partition agreement is a
nominate contract, 4 it is subject to those special provisions in the Civil Code on
the contract of partition. See La. Civ. Code art. 1916; Andrea Carroll and
Richard D. Moreno, 16 La. Civ. L. Treatise, Matrimonial Regimes § 7:22 (3d
ed. 2013). Such special provisions that apply to partitions include, for example,
La. Civ. Code art. 811, instructing that the proceeds of a partition by licitation
or private sale shall be distributed to the co-owners in proportion to their
shares. Although under the Louisiana Civil Code, “parties are free to contract
for any object that is lawful, possible, and determined or determinable,” La.
Civ. Code. art. 1971, here there is no genuine evidence that the parties
intended for the proceeds of the partition sale by non-judicial auction, between
the co-owners and excluding third persons, to be divided among the co-owners
in any way other than in proportion to each co-owner’s share, so the rule
provided for in a partition by licitation under La. Civ. Code art. 811 controls.
Furthermore, even if we were to conclude that the compromise
entered by Sundown and Haller did not implicitly call for the auction sale
proceeds to be divided between them in proportion to each co-owner’s share,
that open or doubtful provision should be interpreted as provided for by the
Civil Code in such a situation. La. Civ. Code art. 2053 provides: “A doubtful
provision must be interpreted in light of the nature of the contract, equity,
usages, the conduct of the parties before and after the formation of the contract,
and of other contracts of a like nature between the same parties.” Article 2054
provides: “When the parties made no provision for a particular situation, it
4“Nominate contracts are those given a special designation such as sale, lease, loan,
or insurance.” La. Civ. Code Ann. art. 1914.
20
Case: 13-30294 Document: 00512860820 Page: 21 Date Filed: 12/08/2014
No. 13-30294 cons. w/13-30721 & 13-30748
must be assumed that they intended to bind themselves not only to the express
provisions of the contract, but also to whatever the law, equity, or usage
regards as implied in a contract of that kind or necessary for the contract to
achieve its purpose.” Article 2055 provides: “Equity, as intended in the
preceding articles, is based on the principles that no one is allowed to take
unfair advantage of another and that no one is allowed to enrich himself
unjustly at the expense of another. Usage, as intended in the preceding
articles, is a practice regularly observed in affairs of a nature identical or
similar to the object of a contract subject to interpretation.” Applying these
articles here, a Louisiana court would conclude that the express provisions of
the settlement agreement and the law, equity, and usage in an agreement of
this kind implies, and is necessary for the agreement to achieve its purpose,
that the proceeds of the sale should be divided between the parties according
to their respective co-ownership shares.
Although the district court may have erred in initially giving the
magistrate judge a choice as to how to proceed with the auction, the magistrate
judge, and ultimately the district court, correctly perceived and followed the
intention of the parties and applied the legally correct interpretation of
Louisiana law in the auction, partition, sale, and division of the sale proceeds
so that any error in respect to those matters was harmless. Consequently, I
would affirm the district court’s judgment ordering Sundown to transfer its
interest in Tracts 1 and 2 to Haller upon distribution of the net sale proceeds
due Sundown for its proportionate share in the co-owned properties. Because
Haller is entitled to acquire full ownership of the co-owned properties
upon making the payment due, the issues with respect to Haller’s 99 year
recreational lease and Sundown’s mineral rights on those properties appear to
21
Case: 13-30294 Document: 00512860820 Page: 22 Date Filed: 12/08/2014
No. 13-30294 cons. w/13-30721 & 13-30748
be moot, but in an abundance of precaution I would remand them for further
consideration by the district court.
On the other hand, I agree with and concur in other parts of the
majority opinion, viz., its affirmance of the district court’s denial of the
Defendants’ motion to hold Sundown in contempt; its interpretation and
declaration of the parties’ agreement with respect to the right of way and road
construction giving Sundown access to its property; and its vacating of the
district court’s imposition of terms as to a nine-month time limit on Sundown’s
use of a temporary right of way during road construction, Haller’s right to
review road construction cost estimates, and the requirement that Haller pay
his portion of construction costs within ten days of receiving the bill.
22 | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1344388/ | 188 Ga. App. 630 (1988)
373 S.E.2d 645
BENNETT
v.
WOOD.
76552.
Court of Appeals of Georgia.
Decided September 9, 1988.
Rehearing Denied October 3, 1988.
M. Theodore Solomon II, William J. Edgar, for appellant.
Lucian Wood, Jr., pro se.
SOGNIER, Judge.
Lucian Lincoln Wood, Jr., filed a motion pursuant to OCGA § 19-9-3 (b) in the Superior Court of DeKalb County seeking modification of visitation rights with his minor son. Wood's former wife, Holly Wood Bennett, filed a response to Wood's motion raising various objections to jurisdiction and venue in DeKalb County as well as challenging the propriety of using the motion as a vehicle for modification. The trial court granted Wood's motion to modify certain aspects of the visitation rights, and we granted Bennett's application for discretionary appeal.
The record reveals that the parties were divorced in the Superior Court of Cobb County in 1983, and a final order regarding custody, visitation and child support was entered by that court in September *631 1984 and modified at the request of appellant in regard to certain aspects of visitation in November 1984. One year later, appellant filed an action in Cobb County for contempt of the order regarding child support and seeking a change in visitation. Appellee raised defenses of lack of jurisdiction and improper venue to the modification action based on his residence in DeKalb County, and that action was dismissed. Appellant refiled the petition seeking modification of visitation in DeKalb County, and that action resulted in an order entered May 2, 1986, modifying certain visitation provisions. No appeal from that order was taken.
At the time the 1986 DeKalb County order was entered, appellant was living in Candler County. Subsequent to the entry of that order, appellant married a resident of Bacon County, and in December 1986 moved her residence to that county. On September 16, 1987, some fifteen months after the DeKalb County order had been entered, appellee filed his motion in DeKalb County which resulted in the order appealed here.
1. Appellant contends the trial court erred by entertaining this action because any action to modify visitation must be brought in Bacon County, her county of residence. We agree and reverse.
It is well established that the term "custody" includes visitation rights. OCGA § 19-9-22 (1). OCGA § 19-9-23 (a) provides that "[e]xcept as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child." Thus, the plain meaning of OCGA § 19-9-23 (a) is that an action by the noncustodial parent to modify visitation with a minor child must be brought in the county of residence of the custodial parent. The problem arises because of an apparent conflict between the language in OCGA § 19-9-23, and that found in the identical provisions of OCGA §§ 19-9-1 (b) and 19-9-3 (b). The two latter statutes provide that "[i]n any case in which a judgment awarding the custody of a minor has been entered, on the motion of any party or on the motion of the court, that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the minor." (Emphasis supplied.)
*632 Appellee argues that the language in OCGA §§ 19-9-1 (b) and 19-9-3 (b) authorizes him to bring a motion in the court issuing the last judgment effecting custody or visitation rights between the parties (i.e., DeKalb County), thereby excusing him from initiating a new suit in the county of residence of the legal custodian (i.e., Bacon County). We agree with appellee that these statutes permit modification of visitation rights to be sought by motion as well as by bringing a new action. However, we cannot agree that both methods are always suitable. Rather, the suitability of either method must be tested against the applicable facts in each particular case. While modification of visitation rights may properly be sought by motion during ongoing litigation initiated in the correct forum, we reject appellee's argument that OCGA §§ 19-9-1 (b) and 19-9-3 (b) dispense with the necessity of personal jurisdiction over the defendant. The fact that OCGA §§ 19-9-1 (b) and 19-9-3 (b) allow modification of visitation rights absent the change in conditions necessary for a change in custody does not demand otherwise. Not only would such a construction be constitutionally impermissible, see Art. VI, Sec. II, Par. VI, Const. of Ga., 1983, it would frustrate the very purposes set forth by the legislature for enacting the Child Custody Intrastate Jurisdiction Act by encouraging forum shopping. See OCGA § 19-9-21 (a). "It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes `in pari materia,' are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto." Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731-732 (48 SE2d 86) (1948). We harmonize the provisions of OCGA § 19-9-1 (b) and OCGA § 19-9-3 (b) with those of OCGA § 19-9-23 by holding that the former come into play only when jurisdiction and venue are also proper. As it is undisputed in this case that the prior action had terminated with the entry of a final order, that appellee's motion was out of term, and that appellant was not a resident of DeKalb County, the DeKalb County court did not have the required personal jurisdiction over her, and the trial court erred by entertaining the modification action.
Ordinarily, where an action is brought and improper venue is alleged, the Uniform Transfer Rules apply, see 251 Ga. 893-895, and the action is transferred rather than dismissed. In this case, however, modification having been sought by motion when no prior action was pending, our decision that the motion was improper leaves nothing capable of being transferred.
2. Appellant's remaining enumeration is rendered moot by our decision in Division 1 reversing the judgment below.
*633 Judgment reversed. Deen, P. J., concurs. Carley, J., concurs in judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344528/ | 472 S.E.2d 134 (1996)
221 Ga. App. 594
NOBLES et al.
v.
PREVOST.
No. A96A0730.
Court of Appeals of Georgia.
May 30, 1996.
*135 Melnick, Moore & Elliott, David R. Moore, Atlanta, for appellants.
Jones, Cork & Miller, Thomas C. Alexander, Sharon H. Reeves, Macon, for appellee.
McMURRAY, Presiding Judge.
Plaintiffs Michael Nobles and Lisa Nobles filed this medical malpractice action in their individual capacities, and on behalf of their minor child Ryan Nobles, who was alleged to have been injured by the negligence of defendant Prevost. The complaint alleged that plaintiffs "have been forced to file their claim within ten (10) days of the running of the statute of limitations, and are therefore unable to attach an expert's affidavit to this complaint at this time. Such affidavit will be attached by amendment pursuant to applicable law." Plaintiffs amended their complaint ten days after the original filing of their complaint. While the amended complaint stated that the affidavit of plaintiffs' expert was attached, whether this statement was correct at the time the amended complaint was filed with the clerk of superior court has become the controlling issue in the case sub judice.
Defendant answered and moved to dismiss or in the alternative for summary judgment. The superior court entered an order granting defendant's motion to dismiss and also defendant's motion for summary judgment. The superior court order stated a number of alternative grounds, but we need consider only one.
An alternative basis for the grant of defendant's motions was a finding that the affidavit requirement of OCGA § 9-11-9.1 had never been met because no affidavit had been filed. The record of the case sub judice as originally docketed in this Court contains plaintiffs' amended complaint but does not contain an affidavit of plaintiffs' expert. Two weeks after the docketing of this appeal, plaintiffs filed a motion in the superior court requesting that the expert's affidavit be made a part of the record. Plaintiffs' motion to add the expert's affidavit was denied by the superior court. Held:
First, we note that even after the case was docketed in this Court, the superior court retained jurisdiction to add additional record and is the final arbiter as to any differences concerning preparation of the record. Smith v. State, 213 Ga.App. 536, 537(3), 445 S.E.2d 341. The superior court's resolution of any conflicts in the evidence on plaintiffs' motion to supplement the record is dispositive and not subject to our review. Id. at 537(2), 445 S.E.2d 341.
We add that OCGA § 5-6-41(f) is not an instrument for supplying fatal deficiencies after the fact. Nixon v. Rosenthal, 214 Ga. App. 446, 447(3), 448 S.E.2d 45. Nor are OCGA § 9-11-9.1 (e) and (f) applicable to the circumstances in the case sub judice.
It follows that we must affirm the grant of defendant's motions to dismiss and for summary judgment since the evidence of record fails to show that an expert affidavit as required by OCGA § 9-11-9.1 was filed prior to the grant of summary judgment in favor of defendant. ABE Engineering v. Griffin, Cochran & Marshall, 212 Ga.App. 586, 443 S.E.2d 1. The judgment of the superior court is affirmed.
Judgment affirmed.
JOHNSON and RUFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344533/ | 675 P.2d 1013 (1983)
In the Matter of the GUARDIANSHIP OF Robin Andrea POLIN.
No. 60342.
Supreme Court of Oklahoma.
November 29, 1983.
As Corrected On Denial of Rehearing January 30, 1984.
John M. Young, Young & Young, Sapulpa, for appellant.
Don E. Gasaway, Gasaway, Green & Harris, Tulsa, for appellees.
BARNES, Chief Justice:
Paul and Marsha Polin brought an action in Oklahoma District Court for Tulsa County in which they sought a judicial declaration that their eighteen year old daughter, Robin, was incompetent under 58 Ohio St. 1981 §§ 851-852. The only allegations of incompetency consisted of statements in the petition that Robin Polin is "socially naive", is being "brainwashed, programmed and secreted by members of a religious sect called Kingdom Come Ministery", and is being "deceived and imposed upon by artful, deceiving and designing persons."
The testimony and evidence presented during the five day trial demonstrated that Robin Polin is eighteen years old and is congenitally deaf. She cannot speak and communicates in her primary language which is a combination of American Sign Language and signed English. Robin is *1014 bilingual; her second language is written English. Additionally Robin possesses above average intelligence as demonstrated by the evidence presented by both petitioners and respondents.
Robin's academic achievement level does not equal that of eighteen year olds who are not hearing impaired, primarily because of the communication problems with which she is faced. Yet, in spite of the serious communication difficulties which face all deaf persons, Robin's academic plans include graduating from high school and continuing on to college.
Robin is a registered voter, a licensed driver, and has demonstrated her ability to travel independently. She has held part-time jobs during summer vacations like many high school students.
While attending Edison High School, Robin became acquainted with other deaf students. Through social activities with her friends, Robin became curious about Christianity, and sought information from an established Tulsa church with an active ministry to the deaf. Robin's parents, having raised her according to her Jewish heritage, objected to her association with the Christian ministry. They wanted her to adhere to Jewish beliefs and felt that they should answer any religious questions posed by their daughter. Open conversation was difficult however, since Paul Polin, throughout the eighteen years of his daughter's life, never learned to communicate with Robin in her primary language, signed English.
Between March, 1982 and April, 1983, Robin made the decision to adopt the Christian faith as her own, and sought to combine this faith with her ethnic heritage. Mr. Polin opposed Robin's choice, and ordered his daughter either to conform to his wishes or leave his home. Robin chose to leave on April 26, 1983. On April 28, 1983 Mr. and Mrs. Polin petitioned to have their daughter declared incompetent and sought guardianship of her person and estate.
After a five day trial Special Judge Robert D. Frank found Robin Andrea Polin to be "judgmentally immature" and therefore incompetent under the laws of Oklahoma. In his lengthy decision, Judge Frank observed that the apparent motive in bringing the action was the discord surrounding Robin's religious choice. Yet, in outlining the factors which did not contribute to his decision, Judge Frank listed religious choice first, followed by Robin's average to above average intelligence, her academic achievement level, and her employability.
The sole effect of the creation of "judgmental immaturity" as a standard by which to judge one incompetent to manage her person or property manifests itself as an abridgment of Robin Polin's constitutionally guaranteed right to free exercise of her religious beliefs. These beliefs were characterized in Judge Frank's decision as a "vague and persistent desire to serve the Lord." Yet careful scrutiny of the five volume transcript reveals Robin's beliefs as consistent and specific ideals which have motivated her to desire a career as a Christian minister to the deaf. Thus, this case, prompted by familial disagreement, resulted in misconstruction of Oklahoma's incompetency statutes and in an intolerable chilling of a fundamental constitutional right.[1]
Section 852 of Title 58 of the Oklahoma Statutes governs appointment of a guardian for an incompetent person. It provides:
If after a full hearing and examination upon such petition, it appears to the judge of the county court that the person in question is incapable of taking care of himself and managing his property, he must appoint a guardian of her person and estate, with the powers and duties in this article specified.
This statute has been in effect in virtually the same form since 1910, and has been construed in a variety of cases during its existence. The primary purpose of this statute has been to protect people from *1015 dissipating the assets of their estates by virtue of incapacity, and to protect these incapable of managing their affairs from being victimized by others desirous of depriving them of their property. Additionally, the statute protects persons who for any reason cannot make day-to-day decisions required of them in order to function within our society.
The trial court, as well as both appellant and appellees in this case make much of the "artful and designing persons test" which we applied to deny appointment of a guardian for a woman alleged incompetent because she married a man thirty-five years her junior, contributed large sums of money to his filmmaking project and on occasion gave rather extravagant gifts. In the Matter of the Guardianship of Bogan, 441 P.2d 972 (Okl. 1968). In Bogan, we applied 58 Ohio St. 1961 § 852 and defined "incompetent" and "incapable" to mean
any person who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause, unable or incapable, unassisted, of properly taking care of himself or managing his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons.
Id. at 974 (quoting In re Guardianship of Prince, 379 P.2d 845 (Okl. 1963)).
We adopted this definition in 1912 as dispositive of the Legislature's intent to protect property of alleged incompetants from being usurped by artful and designing persons. This definition existed as part of the language of California's incompetency statute. We applied it in order to uphold appointment of a guardian for two sisters who were "so ignorant in so far as the value of their property was concerned that it was probable they would make an improvident disposition thereof...", and ruled that protection of property "is the situation contemplated by the statutes under which this proceeding was brought." Shelby v. Farve, 33 Okl. 651, 126 P. 764 (1912). We will not permit application of this definition beyond these parameters when such application invades the area of personal ideas, thoughts and beliefs.
Indeed, the very language adopted from the California statute was declared unconstitutional in an appeal from a conservatorship proceeding in which the California Court of Appeal held that application of the statute to facilitate "deprogramming" of young adults abridged the right to free exercise of religious beliefs. Katz v. Superior Court of City and County of San Francisco, 73 Cal. App. 3d 952, 141 Cal. Rptr. 234 (1977). The court held that "although the words `likely to be deceived or imposed upon by artful or designing persons' may have some meaning when applied to the loss of property, they are too vague to be applied to the world of ideas." Id. at 970, 141 Cal. Rptr. at 244.
We need not reach the issue of constitutionality of the Oklahoma statute as urged by the appellant since our statute does not contain the language held unconstitutionally vague by the California court. Under Oklahoma law, the artful and designing persons test applies only to cases in which appointment of a guardian is necessary to protect an incompetent person from losing property to deceitful persons, and may not be applied to force an unconstitutional construction upon a constitutional statute.
A better definition exists by which to test incompetency. We dismissed a guardianship proceeding where the only evidence of "artful and designing" influence was inequality of bargaining power in a loan transaction and being cheated by a tenant. We observed that
[b]eing cheated out of our rents and being charged an exhorbitant rate of interest is neither a new or novel experience to landlords or borrowers in this or any other state in the United States, and is not evidence of incompetency. If it were, the bulk of the business of this country would be conducted by guardians.
In re Winnett's Guardianship, 112 Okl. 43, 239 P. 603, 605 (1925). The following test for competency evolved in Winnett.
*1016 Mental incompetency or incapacity is established when there is found to exist an essential privation of the reasoning powers or faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life. When it is not shown that such mental incompetency exists, it is reversible error for the court to appoint a guardian of the estate of an adult person.
Id.
Thorough examination of the transcript in this case reveals that the trial court's characterization of Robin Polin as being "judgmentally immature" will withstand neither the artful and designing persons test nor the Winnett test, nor will it withstand scrutiny under the statutory language of 58 Ohio St. 1981 § 852. Robin Polin does not have financial assets capable of being depleted by artful and designing persons, and the evidence clearly illustrates that Robin is "capable of understanding and acting with discretion in the ordinary affairs of life." Additionally, the statute requires that the alleged incompetent be "incapable of taking care of himself and managing his property", and sets a standard much higher than mere "judgmental immaturity". 58 Ohio St. 1981 § 852. That she needs additional training and guidance as she continues to mature shows nothing more than the needs for experience, training and guidance exhibited by all young adults. Robin's needs differ because of her disability, but Robin understands her special needs and has been trained to cope with her communication difficulties. She knows when and how to seek appropriate aid when she requires special assistance.
The trial court's creation of a vague standard such as "judgmental immaturity" cannot be permitted as camouflage for the single effect of its decision, the denial of Robin Polin's right to her religious beliefs. To permit this standard to exist places a construction upon our statute beyond the intent of its drafters and well outside the limits of the Oklahoma and United States Constitutions.
The Tenth Circuit held a guardianship proceeding void for lack of notice under 58 Ohio St. 1981 § 851 when the intent of the proceeding was to facilitate deprogramming of a young adult. The court remanded for trial the tort claims of the alleged incompetent for false imprisonment, holding that the case arose from a "situation in which there is a gross concerted interference with a very fundamental right, the right to choose one's religion, and it is this underlying factor that makes the case actionable, or which greatly aggravates it." Taylor v. Gilmartin, 686 F.2d 1346, 1362 (10th Cir.1982); cert. denied, ___ U.S. ___, 103 S. Ct. 788, 74 L. Ed. 2d 994 (1983).
A similar misuse of the Oklahoma incompetency statutes is effected by the trial court's decision against Robin Polin. The decision is therefore REVERSED.
IRWIN, LAVENDER, DOOLIN and OPALA, JJ., concur.
SIMMS, V.C.J., concur in judgment.
HARGRAVE and WILSON, JJ., concur in result.
HODGES, J., dissent.
NOTES
[1] U.S. Const. amend. I (applicable to the states through the fourteenth amendment); Okl. Const. art. I § 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344549/ | 472 S.E.2d 295 (1996)
In re R.E.W.
No. S96C1232.
Supreme Court of Georgia.
July 12, 1996.
Petition for Certiorari Denied.
All the Justices concur, except HUNSTEIN, CARLEY and HINES, JJ., dissent.
CARLEY, Justice, dissenting.
R.E.W.'s mother discovered R.E.W.'s father engaging in sexual acts with another man in the marital bed. Thereafter, R.E.W.'s parents were divorced. According to the settlement agreement signed by both parties, approved by the trial court and incorporated into the final divorce decree, the mother was awarded custody of the then three-year old R.E.W. and the father was given extensive, but supervised, visitation with the child. After the divorce, the father entered into a meretricious heterosexual relationship. Within several months, however, the father began a homosexual relationship with a man whom he eventually followed to Virginia and with whom he currently resides in that state.
In Georgia, the father brought a petition to modify the final divorce decree so as to permit him unsupervised visitation with R.E.W. After conducting a hearing and conferring with R.E.W. herself, the trial court found that the father would not take adequate measures to prevent the child's exposure to his homosexual lifestyle and that it would be in the best interest of the child to maintain the decree's original provisions for supervised visitation.
The Court of Appeals granted the father's application for a discretionary appeal. In the Interest of R.E.W., 220 Ga.App. 861, 471 S.E.2d 6 (1996). Recognizing that it was resolving an issue of first impression in Georgia, the Court of Appeals cited authority from other states, including In the Matter of Marriage of Ashling, 42 Or.App. 47, 599 P.2d 475 (1979), and concluded that the trial court erred in finding that continued supervised visitation would be in the best interest of R.E.W. Accordingly, the case was reversed and remanded with direction that the trial court award the father "customary unsupervised" visitation with the child. In the Interest of R.E.W., supra at 864, 471 S.E.2d 6.
A majority of this court has denied the mother's petition for a writ of certiorari. In my opinion, certiorari should be granted because the Court of Appeals has undertaken to resolve an issue of first impression in this state's domestic relations law, which issue is of great concern, gravity, and importance to the public. Rule 40 of the Supreme Court of Georgia. Moreover, it is also my opinion that certiorari should be granted because the Court of Appeals erroneously resolved that important issue of first impression. Because I believe that this Court should reverse the judgment of the Court of Appeals, I dissent to the denial of certiorari.
It is of paramount importance to recognize that this case in no way involves the denial of parental visitation rights. All that is in question is whether the exercise of the extensive visitation rights previously granted to the father should continue to be supervised. After conducting a hearing, the trial court found that visitation should remain supervised. An appellate court should not substitute its view of the evidence for that taken by the trial court and it must affirm a trial court's ruling unless there was an abuse of discretion. Homans v. Street, 237 Ga. 649, 229 S.E.2d 432 (1976). Accordingly, unless *296 the evidence demanded a finding that it was in the best interest of the child that visitation be unsupervised, the Court of Appeals erred in reversing the trial court's denial of the father's modification petition. Ledford v. Bowers, 248 Ga. 804(1), 286 S.E.2d 293 (1982).
The clear weight of authority is that where, as here, it is shown that the parent is not only a homosexual but also currently is engaged in a homosexual relationship, restrictions on the exercise of visitation rights are not inappropriate. See Annot., 36 ALR4th 997 (1985); White v. Thompson, 569 So. 2d 1181, 1185 (Miss.1990) (under the "majority rule," a requirement that visitation be conducted outside the presence of the parent's homosexual partner "is a reasonable exercise of the court's power and discretion.") Without engaging in any analysis, however, the Court of Appeals inexplicably elected, instead, to follow a line of cases exemplified by In the Matter of Marriage of Ashling, supra, which "appears to be the minority view." J.L.P.(H.) v. D.J.P., 643 S.W.2d 865, 871 (Mo.App.1982).
It is abundantly clear that only the majority rule is compatible with this state's jurisprudence. Sodomy is against the criminal law of Georgia. Compare Mink v. Mink, 195 Ga.App. 760, 395 S.E.2d 237 (1990) (religious affiliation). The judiciary should concern itself only with the objective constitutionality, not the subjective wisdom, of the General Assembly's enactments and there is no question that our legislature's criminal proscription on the act of sodomy is constitutional. Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Here, it is undisputed that the father engaged in pre-divorce sodomy, and currently is in a homosexual relationship. Compare Gay v. Gay, 149 Ga.App. 173, 174(3), 253 S.E.2d 846 (1979). Thus, the father has a demonstrable past and present history of engaging in conduct which is against the criminal laws of this state. In determining the father's visitation rights, this criminal conduct on his part cannot simply be ignored by the courts. Because the father's criminal conduct should in no way differ from any other demonstrable course of parental criminal conduct, a concern for potential harm to the child necessarily "requires consideration of such conduct by a court charged with determining the best interests of the child." J.L.P.(H.) v. D.J.P., supra at 869. The father's acknowledgement that he currently is engaged in a homosexual relationship which the citizens of this state, through their elective legislative representatives, have criminalized "certainly augurs for potential harm to the child that the trial court was perfectly competent to assess." J.L.P.(H.) v. D.J.P., supra at 869.
The Court of Appeals nevertheless found "no competent evidence" authorizing the trial court to discredit the father's testimony that he agrees that it is in R.E.W.'s best interest to conceal his sexual relationship and intends to act accordingly. This is, in my opinion, patently erroneous. Where, as here, the trial court sits as the trier of fact, it and it alone is uniquely and exclusively qualified to determine the credibility of those witnesses who appear before it. Guardian of Ga., Inc. v. Granite Equipment Leasing Corp., 130 Ga. App. 514, 515(1), 203 S.E.2d 733 (1974); Goggans v. State, 14 Ga.App. 822(2), 82 S.E. 357 (1914). Accordingly, the credibility of the father's testimony was a matter solely for the trial court's determination.
It follows that the opinion of the Court of Appeals should be reversed because it erroneously adopts the "minority rule" with regard to the first impression issue of whether the visitation rights of a parent who is in a homosexual relationship may be restricted so as to limit the child's exposure to the parent's lifestyle. White v. Thompson, supra; J.L.P.(H.) v. D.J.P., supra. Compare In the Matter of Marriage of Ashling, supra. Moreover, the opinion of the Court of Appeals also should be reversed because it blatantly usurps the trial court's traditional authority to determine credibility and to exercise its discretion when determining the issue of child custody, including visitation rights. Under the evidence,
it cannot be held as a matter of law that the trial judge, who saw and heard the parties and the witnesses, abused his discretion in making the award complained of; and since no abuse of his discretion appears from the record, [the][C]ourt [of Appeals *297 should] not interfere to control his judgment. [Cits.]
Murphy v. Dixon, 218 Ga. 111-112, 126 S.E.2d 616 (1962). See also Murphy v. Murphy, 238 Ga. 130, 231 S.E.2d 743 (1977). The father himself originally agreed to the terms of visitation which the trial court now refuses to modify and, "[w]hile these visitation rights were restrictive, they were within the discretion of the trial judge. [Cit.]" Barger v. Barger, 238 Ga. 334(3), 232 S.E.2d 567 (1977). See also Schowe v. Amster, 236 Ga. 720, 722(5), 225 S.E.2d 289 (1976).
Regretfully, this court has not taken the present opportunity to reverse the erroneous opinion of the Court of Appeals. Thus, unless and until this court holds otherwise, the opinion of the Court of Appeals constitutes the applicable law of Georgia. As long as the opinion of the Court of Appeals is the statement of our applicable law, the trial courts of this state no doubt will be confused, not only as to the extent to which they can continue to exercise discretion in determining the best interest of the child for the purpose of deciding child custody issues in a domestic relations case, but also as to the extent to which they can continue to determine the credibility of witnesses in any bench trial. Hopefully, another case soon will present this court with the opportunity to overrule this erroneous precedent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344190/ | 373 S.E.2d 177 (1988)
Betty GALLARDO
v.
WORKERS' COMPENSATION COMMISSIONER and CATO Corp.
No. 18002.
Supreme Court of Appeals of West Virginia.
September 16, 1988.
*178 Otis R. Mann, Jr., Charleston, for Betty Gallardo.
Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, for Cato Corp.
MILLER, Justice:
The claimant seeks a total and permanent disability award due to the combined effects of a work-related injury which is claimed to have aggravated a preexisting arthritic condition which had not been disabling. The Commissioner and Appeal Board refused to grant a permanent total disability award.
On September 29, 1980, the claimant, who was approximately fifty years old and was employed as the manager of a retail clothing store, fell backward while lifting a mannequin. She apparently struck her back in the fall and experienced severe dorsal back pain and found it extremely difficult to straighten up. She returned to work on October 2, 1980, and was able to continue working despite substantial pain until February, 1981, when she stopped working upon the advice of her physician.
The claimant had a preexisting arthritic condition which had caused her some pain and discomfort; however, it was not disabling. She was able to marry, have children, and work for some thirty-six years primarily as a sales clerk, without missing any work due to her arthritic condition.
Following the 1980 injury, the Workers' Compensation Commissioner referred her *179 to James A. Heckman, M.D., for an evaluation. In his December, 1983 report, Dr. Heckman found that the claimant had rheumatoid arthritis of the cervical spine and some abnormalities of the dorsal and lumbar spine. Dr. Heckman indicated that it would be an extremely difficult, if not an impossible, task to determine the amount of impairment due to the compensable injury. He did, however, estimate a 10 percent permanent impairment of function related to the compensable injury. Dr. Heckman expressed no opinion concerning the claimant's ability to return to her customary work. The Commissioner granted the claimant a 10 percent permanent partial disability award in January, 1984, based on this recommendation.
The claimant protested and introduced a September, 1984 medical report from George F. Fordham, M.D., whose medical findings concerning the claimant's physical impairment were similar to Dr. Heckman's. He also commented that it would be impossible to "separate out injury related disability with her arthritic disability." Because she had been able to work until the time of the injury, and in the absence of a clear cut line of demarcation, Dr. Fordham estimated that 50 percent of her disability was due to the injury.
Thomas H. Scott, M.D., examined the claimant in May, 1985, on behalf of the employer. Dr. Scott found evidence of rheumatoid arthritis in the cervical spine as well as "rather profound scoliosis involving the dorsal and lumbar spine." He expressed the opinion that the claimant's underlying rheumatoid arthritis had been exacerbated and aggravated by her occupational injury and that she was permanently disabled from gainful employment at the present time. He believed she would definitely need continuing medical treatment and estimated her permanent disability or impairment secondary to her compensable injury at 15 percent of the body as a whole.
The claimant also introduced a vocational report prepared by Phyllis Shapiro, who expressed the opinion that the claimant was permanently and totally disabled based on the claimant's age, limited ninth-grade education, previous employment history, and present medical condition.
The claim was then submitted for decision. The Commissioner by order of July 15, 1986, increased the 10 percent permanent partial disability award previously granted to a 15 percent permanent partial disability award. The Appeal Board affirmed based primarily on the lack of equivocation found in Dr. Scott's report recommending a 15 percent permanent partial disability award. The Appeal Board also rejected the claimant's argument that she was entitled to a permanent total disability award, stating:
"Although the claimant may be permanently and totally disabled, her disability above 15% permanent partial disability is found to have resulted from her non-compensable disease which cannot be included in an award of permanent total disability. W.Va.Code § 23-3-1 provides that combined effects of a previous injury, irrespective of its compensability, and a compensable injury can give rise to a second injury award, and this provision includes compensable diseases, but excludes non-compensable diseases. Because the claimant's pre-existing disease was non-compensable it cannot be considered in evaluating the claimant for a permanent total disability award...."
Our decisions applying the second injury fund statute, W.Va.Code, 23-3-1,[1] have *180 consistently held that the claimant's preexisting impairment must have been the result of an injury, not a disease, unless it is an occupational disease as defined in W.Va. Code, 23-4-1.[2] In Mullins v. State Workmen's Compensation Comm'r, 165 W.Va. 194, 271 S.E.2d 771 (1980), and Boggs v. State Workmen's Compensation Comm'r, 163 W.Va. 413, 256 S.E.2d 890 (1979), we followed this interpretation of the second injury fund statute originally enunciated in Syllabus Point 2 of Bannister v. State Workmen's Compensation Comm'r, 154 W.Va. 172, 174 S.E.2d 605 (1970):
"In order to obtain workmen's compensation benefits for total disability resulting from a second injury coupled with a non-compensable definitely ascertainable physical impairment, such physical impairment must have been caused from an injury and not a disease unless such physical impairment was an occupational disease proved to have been proximately caused by employment."
The claimant in Mullins was a coal miner who sought a permanent total disability award due to the combined effects of occupational pneumoconiosis, for which he had been granted a 40 percent permanent partial disability award, and a preexisting calcification of his lung. The Court denied the award under the Bannister rule, finding no evidence that the calcification was work related or anything other than an ordinary disease of life.
In Boggs, the claimant received a 50 percent permanent partial disability award for occupational pneumoconiosis. Later, he requested to reopen the claim to consider the combined effects of a prior impairment together with his occupational pneumoconiosis. The claimant's prior impairment involved tuberculosis which had resulted in a collapsed lung. It was undisputed that the combination of the residual effects of the collapsed lung and his occupational pneumoconiosis rendered him totally disabled. This Court in reliance on Bannister affirmed the Appeal Board's denial of a permanent total disability award on the basis that the collapsed lung resulted from a disease and not from a previous injury.[3]
In a number of cases,[4] we have recognized a relationship between our apportionment statute, W.Va.Code, 23-4-9b,[5]*181 and our second injury statute, W.Va.Code, 23-3-1. The relationship arose because the apportionment statute refers to the second injury statute. The language of the apportionment statute makes it clear that it does not apply to second injury life awards. The reason is obvious: a second injury life award claimant must of necessity have prior injuries on which to build the life award. The second injury statute clearly intends this result as the claimant must show he has become "permanently and totally disabled through the combined effect of such previous injury and a second injury" received in his employment. W.Va.Code, 23-3-1.[6] If the apportionment statute were to apply, it would negate the second injury statute by permitting the claimant's earlier disabilities to be excluded from consideration in a second injury life award claim. Stated another way, our apportionment statute does not apply to the second injury statute, as we stated in Syllabus Point 4 of Gillispie:
"West Virginia Code, chapter 23, article 4, section 9b, as amended, expressly excludes from its provisions the rating of compensable injuries resulting in a lifetime award of total permanent disability within the meaning of the second injury provision of West Virginia Code, chapter 23, article 3, section 1, as amended."
Although the Appeal Board correctly concluded that the second injury fund statute was not applicable in this claim, the claimant did not seek a life award payable from the second injury fund. The claimant's contention below was that she was entitled to a total permanent disability award under the general rule stated in Syllabus Point 2 of Charlton v. State Workmen's Compensation Comm'r, 160 W.Va. 664, 236 S.E.2d 241 (1977):
"`A diseased workman who in the course of and resulting from his employment receives an injury, which aggravates or accelerates the disease, to the extent of causing a disability sooner than would otherwise have occurred, is entitled to compensation from the Workmen's Compensation Fund.' Syllabus point three, Manning v. State Compensation Commissioner, 124 W.Va. 620, 22 S.E.2d 299 (1942)."
In Charlton, the claimant had been required to stand in mine water which had been treated with magnetite and sulphuric acid and also contained oil, kerosene, and other chemicals. Over a five- or six-month period of exposure, the claimant's feet became ulcerated. The medical testimony suggested that this was a result of an aggravation of a preexisting blood vessel disease known as "Buerger's disease." The Commissioner and Appeal Board found that the claimant's working in mine water had perhaps aggravated his preexisting disease, but concluded the disease and accompanying disability did not result from employment. We reversed finding that it was compensable.
In Charlton, we cited Manning and Hall v. State Compensation Comm'r, 110 W.Va. 551, 159 S.E. 516 (1931), where the claimants each had diseased blood vessels. Each had sustained a rather modest traumatic injury. In Manning, the claimant *182 had struck the palm of his hand against a throttle bruising it. In Hall, the claimant injured his big toes. However, as a result of the underlying blood vessel condition, the traumatic injuries aggravated the underlying conditions causing quite severe incapacity. In Manning, the index finger had to be amputated, while in Hall, both legs were amputated below the knee. In holding the claim in Hall compensable, the Court stated:
"If the loss of claimant's limbs were due to the disease, unaggravated or unaccelerated by any fortuitous event which may be denominated an accident, then, in view of the statute, the injury is not compensable. If, however, the injury to the great right toe lighted up such condition, and incapacitated him from performing his duties as an employee, claimant is entitled to compensation." 110 W.Va. at 552, 159 S.E. at 517.
The employer, in essence, contends that the Charlton line of cases deals with compensability, not the degree of permanent disability, and are thus not authority for granting a total permanent disability award in this case. The employer also argues that the claimant has only shown a 15 percent permanent partial disability attributable to the injury, and submits that it would be inequitable to charge it for the disability attributable to the claimant's preexisting arthritis. Finally, the employer argues that under the apportionment statute, W.Va.Code, 23-4-9b, as amended in 1986, the claimant is not entitled to compensation for any disability caused by a prior disease.
The argument that the Charlton line of cases applies only to compensability is without merit. The real issue in these cases was one of the degree of disability. The issue, stated another way, was whether an underlying diseased condition when acted upon by a traumatic injury that produces severe disability could be included within the disability rating. We answered that it could.
The employer may not utilize the 1986 version of the apportionment statute, W.Va.Code, 23-4-9b, since it was not in effect on the date of the injury.[7] Even if the claimant were not totally disabled, there is no showing of any preexisting disablement from the arthritic condition as required by Syllabus Point 3 of Daniels, which states, in part, "such preexisting impairment cannot be deducted from the claimant's present permanent partial disability award if the preexisting impairment is not disabling."[8]
We, therefore, reverse the final decision of the Workers' Compensation Appeal Board and remand this case with the direction that an order be entered granting the claimant a permanent total disability award.
REVERSED AND REMANDED.
NOTES
[1] W.Va.Code, 23-3-1, provides, as pertinent here:
"If an employee who has a definitely ascertainable physical impairment, caused by a previous injury, irrespective of its compensability, becomes permanently and totally disabled through the combined effect of such previous injury and a second injury received in the course of and as a result of his employment, the employer shall be chargeable only for the compensation payable for such second injury: Provided, that in addition to such compensation, and after the completion of the payments therefor, the employee shall be paid the remainder of the compensation that would be due for permanent total disability out of a special reserve of the surplus fund known as the second injury reserve, created in the manner hereinbefore set forth." (Emphasis added).
[2] W.Va.Code, 23-4-1, provides in pertinent part: "For the purposes of this chapter the terms `injury' and `personal injury' shall include occupational pneumoconiosis and any other occupational disease, as hereinafter defined...."
[3] In Boggs, we noted the inequity of the language of the second injury statute which gives second injury relief to a prior injury, but not impairment from a diseased condition:
"Since it is obviously the intent of the Legislature to encourage, or at least not discourage, the hiring of the handicapped, McClanahan v. Workmen's Compensation Commissioner, [158] W.Va. [161], [163], 207 S.E.2d 184, 186 (1974), we might question if we were the Legislature whether it is not inequitable to discriminate between the diseased workman and the injured workman. That, however, has been the design of the Workmen's Compensation system since its inception, and our responsibility is to apply the law. The scope of the Act's application to disease has been narrowly confined to occupational disease and there is no suggestion that the Legislature intended this narrow policy to be broadened by bringing previous disease related disabilities within the scope of the second injury statute." 163 W.Va. at 417, 256 S.E.2d at 893.
[4] E.g., Mullins v. State Workmen's Compensation Comm'r, 165 W.Va. 194, 271 S.E.2d 771 (1980); Boggs v. State Workmen's Compensation Comm'r, 163 W.Va. 413, 256 S.E.2d 890 (1979); Gillispie v. State Workmen's Compensation Comm'r, 157 W.Va. 829, 205 S.E.2d 164 (1974). Despite pari materia language in these cases, it is clear that the only purpose of inserting a reference to the second injury life award statute in the apportionment statute, W.Va.Code, 23-4-9b, was to make it plain that the apportionment statute did not apply to second injury life awards.
[5] The term "apportionment" is used because the statute is designed to separate out preexisting disability from the disability arising from the current compensable injury where less than total disability is sought. See Bostic v. State Compensation Comm'r, 142 W.Va. 484, 488, 96 S.E.2d 481, 484 (1957); see generally 2 A. Larson, Workmen's Compensation Laws § 59.21 (1987). At the time of the claimant's 1980 injury, W.Va. Code, 23-4-9b (1971), provided:
"Where an employee has a definitely ascertainable physical impairment and such employee shall thereafter receive an injury in the course of and resulting from his employment, unless such injury results in total permanent disability within the meaning of section one [§ 23-3-1], article three of this chapter, such physical impairment, and the effect thereof, and an aggravation thereof, shall not be taken into consideration in fixing the amount of compensation allowed by reason of such injury, and such compensation shall be awarded only in the amount that would have been allowable had such employee not had such preexisting physical impairment."
In Syllabus Point 6 of Gillispie, supra, this Court held that the apportionment statute, W.Va.Code, 23-4-9b, could not be used to deduct prior compensable injuries on which no percentage of disability rating had been made. In Daniels v. State Workmen's Compensation Comm'r, ___ W.Va. ___, 294 S.E.2d 184 (1982), we construed the language of the statute to require that the preexisting disability must have resulted in some physical impairment and the degree of disability must be stated in order to apportion it from the current disability. Following Daniels, the legislature in 1986 amended W.Va.Code, 23-4-9b. 1986 W.Va. Acts ch. 171. This amendment appears to narrow the scope of Daniels. We have traditionally held that it is the compensation act existing at the time of the injury that gives rise to the claimant's substantive rights. Smith v. State Workmen's Compensation Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975); Ball v. State Workmen's Compensation Comm'r, 156 W.Va. 419, 194 S.E.2d 229 (1973). We need not consider the effect of the 1986 amendments.
[6] See note 1, supra, for the text of W.Va.Code, 23-3-1.
[7] See note 5, supra.
[8] The full text of Syllabus Point 3 of Daniels states:
"Under our apportionment statute, W.Va. Code, 23-4-9b (1971), where there is a preexisting definitely ascertainable physical impairment arising from a nonindustrial injury, such preexisting impairment cannot be deducted from the claimant's present permanent partial disability award if the preexisting impairment is not disabling. Where such preexisting impairment has produced some ascertainable degree of disability, such degree of disability must be stated in order to be apportioned from his current permanent partial disability award." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344223/ | 188 Ga. App. 355 (1988)
373 S.E.2d 61
McMILLIAN
v.
BANK SOUTH, N.A.
76803.
Court of Appeals of Georgia.
Decided September 9, 1988.
Charles E. Price, for appellant.
Susan L. Howick, for appellee.
POPE, Judge.
This appeal follows the trial court's grant of summary judgment to plaintiff Bank South in an action to obtain a deficiency judgment after the sale of repossessed collateral.
1. McMillian first contends Bank South failed to use reasonable care in preserving the value of the collateral, as required by OCGA § 11-9-207. As to this issue, Bank South's business records show that at the time it took possession of the car it was in poor (inoperable) condition; this evidence was refuted only by McMillian's unsupported and conclusory allegation that the car was not "junk" at the time of repossession. In addition, there is no evidence of record that the value *356 of the car decreased while it was in Bank South's possession. Thus, we find no merit to McMillian's contention that Bank South failed to use reasonable care in preserving the value of the car.
We also find no merit to McMillian's argument that Bank South had a duty to repair her automobile. As stated above, Bank South's duty with respect to the collateral is set forth in OCGA § 11-9-207. That section requires only that a creditor use reasonable care to preserve the value of the collateral; it does not impose a duty to increase the value of the collateral. Finally, we note that any rights McMillian may have against the automobile dealership who sold her the car are irrelevant to this proceeding.
2. McMillian also challenges the commercial reasonableness of the sale. "OCGA § 11-9-504 (3) provides that disposition of the collateral `may be by public or private proceedings ... but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.'" Carter v. First Fed. &c. Assn., 179 Ga. App. 532, 536 (347 SE2d 264) (1986). Commercial reasonability is an appropriate subject of summary judgment when the secured creditor makes a prima facie showing that the sale was reasonable and the debtor fails to assert specific facts showing a genuine issue for trial. Slaughter v. Ford &c. Co., 164 Ga. App. 428 (296 SE2d 428) (1982).
In the case at bar, Bank South has shown, by way of affidavit, that the collateral was disposed of at a private auction by a recognized automobile auction company according to standard practice and procedure for sales of this kind. Bank South has disposed of collateral in this manner on a weekly basis for 11 years. "If a secured party disposes of the collateral in conformity with the usual commercial practices among dealers in that type of property, he has sold it in a commercially reasonable manner. OCGA § 11-9-507 (2), generally; Farmers Bank &c. v. Hubbard, 247 Ga. 431 (276 SE2d 622) (1981)." Carter at 536. Because McMillian has offered no evidence to the contrary, we agree the trial court correctly concluded that the method and manner of sale were commercially reasonable.
McMillian, however, also challenges the adequacy of the sale price. The creditor has the burden of proving that the "terms" of the sale were reasonable and this includes proof that the resale price was fair and reasonable. The value of the collateral is presumed to be the value of the debt; however, this presumption can be rebutted by evidence of fair and reasonable value. First Nat. Bank v. Rivercliff Hardware, 161 Ga. App. 259 (287 SE2d 701) (1982).
In the case at bar Bank South's appraiser averred that the fair and reasonable value of the car was $500 at the time of repossession. This appraisal was supported by a report on the vehicle's condition and by the Used Car Trade-In Guide, which provided that the value *357 of similar cars in "rough" condition is $675. The car here was not only in "rough" condition but was completely inoperable.
The car was sold for $350, $150 less than the value assigned by the Bank's appraiser. Although the fact that a better price could have been obtained by sale at a different time or in a different manner will not itself make a sale commercially unreasonable, OCGA § 11-9-507 (2); Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752 (1) (334 SE2d 352) (1985), when the resale price is less than the fair and reasonable value, "the creditor is entitled to a deficiency judgment in the amount of the debt (plus or minus any payments or changes properly applicable to the disposition) less the fair and reasonable value of the collateral proved by the creditor." Farmers Bank v. Hubbard, 247 Ga. 431, 437 (276 SE2d 622) (1981). (Emphasis supplied.) See also First Nat. Bank v. Rivercliff, supra at 260. In calculating the amount of the deficiency judgment in the present case, the trial court used the resale price rather than the fair and reasonable value. Consequently, the case must be remanded to the trial court and the judgment reduced by $150, the difference between the fair and reasonable value and the resale price.
3. Contrary to McMillian's final enumeration, no genuine issues of fact preclude the grant of summary judgment in the case at bar.
Judgment affirmed and case remanded. McMurray, P. J., and Benham, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344191/ | 675 P.2d 657 (1984)
Wendel L. DAILEY, Appellant,
v.
STATE of Alaska, Appellee.
No. 7128.
Court of Appeals of Alaska.
January 13, 1984.
*658 Alex Swiderski, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.
Michael S. McLaughlin, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., COATS and SINGLETON, JJ.
OPINION
COATS, Judge.
Wendel Dailey and Steven Murphy were charged with armed robbery in violation of AS 11.41.500(a)(1), burglary in a dwelling in violation of AS 11.46.300(a)(1), and assault in the third degree in violation of AS 11.41.220. The evidence at trial indicated that Dailey and Murphy attended a party in Barrow at the home of Clarence Dashiell on October 15, 1981. A fight broke out between Murphy and Dashiell. Dailey and Murphy left the party shortly thereafter.
Later that night Murphy and Dailey returned to the Dashiell residence and knocked on the door. Richard Martell, who also lived at that address, opened the door. Murphy informed Martell that he had forgotten his gloves. Martell closed and locked the door while he went to look for Murphy's gloves. After he found a pair of gloves which he did not recognize as either his or Dashiell's, he proceeded to unlock the door to give them to Murphy. Murphy, gun in hand, forced his way into the house. Martell testified that the gun was a Ruger .44 magnum. Once inside, Murphy told Dailey "to do his thing." Dailey disappeared into a back bedroom. Murphy remained in the living room with Martell. Martell testified that he never saw Dailey with the gun in his possession. After the pair left, Martell discovered that he was missing a bag of marijuana. Dashiell, who was not present at the time, later discovered that a box containing his loose change was gone. Dashiell was also unable to locate a small gold earring.
Following the incident, the police conducted a search of the home Dailey shared with Ruth Aiken. There the police found a holster and a box of shells. Upon searching the apartment Murphy shared with his mother, the police discovered a Ruger .44 magnum concealed under a couch. A police check revealed that the gun had been sold to Dailey in December of 1979. At trial, Aiken also confirmed that the Ruger was Dailey's.
The jury found Murphy guilty of all three counts as charged. Dailey was convicted of armed robbery, burglary, and assault in the fourth degree, a lesser-included offense of assault in the third degree. Judge Hodges sentenced Dailey to a six-year presumptive sentence for robbery, five years with four suspended for burglary, and one year with six months suspended on the assault charge. The sentences were made concurrent. Dailey's suspended sentences were suspended for a period of five years. Dailey appeals his sentence to this court. We reverse Dailey's sentence for robbery.
Dailey's main contention on appeal is that Judge Hodges erred in sentencing him to a presumptive sentence under the provisions of former AS 12.55.125. Dailey was convicted of robbery in the first degree, a class A felony.[1] Former AS 12.55.125(c)(1) provided in part:
Sentences of imprisonment for felonies. (c) A defendant convicted of a class A felony may be sentenced to a *659 definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155-12.55.175:
(1) if the offense is a first felony conviction, other than for manslaughter, and the defendant possessed or used a firearm or caused serious physical injury during the commission of the offense, six years. [Emphasis added.]
Judge Hodges sentenced Dailey to the six-year presumptive term provided for in former AS 12.55.125(c)(1). Judge Hodges concluded that although Dailey did not personally possess the firearm, Dailey's conduct fell within former AS 12.55.125(c)(1) because Dailey's accomplice, Steven Murphy, possessed a firearm during the offense. Dailey urges us to construe former AS 12.55.125(c)(1) strictly and argues that if that statute is strictly construed Judge Hodges erred because he had to find that Dailey personally possessed or used a firearm before he could sentence Dailey to the presumptive term.
The state argues that this case is controlled by Rice v. State, 589 P.2d 419 (Alaska 1979). Rice, like Dailey, was convicted of armed robbery under the theory that his accomplice used a firearm during the robbery. Former AS 11.15.240. Rice was sentenced to the minimum term for an offense involving the use of a firearm. Former AS 11.15.295. However, former AS 11.15.295 was a separate statutory crime to which the principles of accomplice liability applied. Whitton v. State, 479 P.2d 302, 305 (Alaska 1970). The theory of accomplice liability was crucial to the court's decision in Rice.
Alaska has abolished the common law distinction between accessories and principals to a crime. We have in the past applied this statute to armed robbery offenses where only one offender used a firearm during the robbery. Since there was sufficient evidence to convict Rice of robbery, the fact that a firearm was used in the robbery makes Rice a principal to the crime of use of a firearm during the commission of a robbery.
589 P.2d at 420 (footnotes omitted).
There is no doubt that the theory of accomplice liability applies where the use or possession of a firearm is an element of the offense or a separate offense.[2] The question which we must decide is whether the law of accomplice liability acts to place Dailey within the provisions of former AS 12.55.125(c)(1).
In attempting to decide this question we have looked at the decisions of many other courts to see how they have resolved this issue. Naturally the decisions in these jurisdictions are dependent on the statutes which they are construing. We find that there is no clear-cut answer in these decisions to the question which Dailey raises.[3]*660 We will briefly discuss some of the decisions which we have considered.
In State v. Stuart, 575 P.2d 559, 565 (Kan. 1978), the Supreme Court of Kansas construed a statute with language similar to AS 12.55.125(c)(1).[4] The court emphasized the plain language of the statute, the fact that the statute could easily have been written to apply to accomplices, and the doctrine of statutory construction that criminal statutes should be strictly construed:
The term "defendant" is used in the singular throughout the statute. At no time is the term "defendants" used. By the same token the statute does not refer to mandatory sentencing applying to aiders and abettors, accomplices or co-conspirators. It is well understood that criminal statutes must be strictly construed against the state and in favor of the defendant. We hold that the statute applies only to the defendant personally armed with a firearm at the time the crime is committed.[5]
Id. (emphasis added).
In State v. Alexander, 184 N.J. Super. 615, 446 A.2d 1257 (1981), the New Jersey *661 superior court reached a result which was opposite to that reached by the Kansas court. The court held that an unarmed accomplice was subject to a mandatory term where a firearm was used or possessed during the commission of a crime. The court's decision was based on what it perceived to be the specific purpose of New Jersey's firearm statute which was "to increase the penalties and, therefore, deter commission of serious crimes when accomplished or accompanied by the use of firearms." Id. 446 A.2d at 1259. The court stated that "[a] construction that all robbers are subject to the same penalties as the one actually using or possessing the handgun, would be a more effective deterrent to the use of handguns in robberies and therefore accord with the Legislature's manifest purpose... ." Id. 446 A.2d at 1262.
The Washington Supreme Court reached still a third result in State v. McKim, 98 Wash.2d 111, 653 P.2d 1040, 1043 (Wash. 1982). The court in that case held that a defendant was subject to having his sentence enhanced if he participated in a crime with knowledge that an accomplice was armed with a deadly weapon.[6]
We conclude that we should follow the cases which hold that statutes similar to former AS 12.55.125(c)(1) should be construed to apply only to a defendant who personally uses or possesses a firearm during the commission of an offense. That certainly is the plain language of the statute and the statute could have been easily written to apply to an accomplice. This interpretation is consistent with the principle of statutory construction which requires criminal statutes to be strictly construed. 3 C. Sands, Sutherland Statutory Construction § 59.04, at 13 (4th ed. 1974). See Lee v. State, 673 P.2d 892, 895 (Alaska App. 1983). We believe that the legislature could rationally have intended this result. The defendant who personally possesses or uses a firearm or personally causes serious physical injury would normally be fully responsible for those actions. His accomplice could very well have a lesser level of responsibility. For instance the accomplice might not know that his partner planned to use a gun. Therefore for sentencing purposes, there might be a reason to treat a defendant more severely who personally uses a gun or personally causes serious physical injury. The revised criminal code is flexible enough to allow an accomplice who did not personally possess or use a firearm to receive the same sentence as a co-defendant who personally possessed or used a firearm if the same sentence is justified. For instance, even though we hold that Dailey is not subject to a presumptive sentence under former AS 12.55.125(c)(1), nothing prevents the trial judge from giving Dailey a sentence of six years under the general provisions of former AS 12.55.125(c) and then restricting his parole eligibility under AS 33.15.230 if he concludes that this sentence is appropriate.[7]*662 We therefore hold that Judge Hodges erred in applying the provisions of former AS 12.55.125(c)(1) to Dailey and in imposing a presumptive sentence under that provision. We therefore vacate Dailey's presumptive sentence on the robbery charge and remand for further proceedings in conformity with this opinion.[8]
The sentence is VACATED, and this case is REMANDED for resentencing.
NOTES
[1] Former AS 11.41.500(a)(1) provided:
Robbery in the first degree. (a) A person commits the crime of robbery in the first degree if he violates § 510 of this chapter and, in the course of violating that section or in immediate flight thereafter, he or another participant
(1) is armed with a deadly weapon or represents by words or other conduct that he or another participant is so armed.
[2] Former AS 11.16.100 provided:
Legal accountability based upon conduct. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable under § 110 of this chapter, or by both.
Former AS 11.16.110 provides:
Legal accountability based upon the conduct of another: Complicity. A person is legally accountable for the conduct of another person constituting an offense if
(1) he is made legally accountable by a provision of law defining the offense;
(2) with intent to promote or facilitate the commission of the offense;
(A) he solicits the other person to commit the offense; or
(B) he aids or abets the other person in planning or committing the offense; or
(3) acting with the culpable mental state that is sufficient for the commission of the offense, he causes an innocent person or a person who lacks criminal responsibility to engage in the proscribed conduct.
[3] See, e.g., Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976); People v. Swanson, 638 P.2d 45 (Colo. 1981); State v. Sanders, 280 N.W.2d 375 (Iowa 1979); People v. Jones, 119 Mich. App. 164, 326 N.W.2d 411 (1982); State v. Hill, 287 N.W.2d 918 (Minn. 1980); Anderson v. State, 95 Nev. 625, 600 P.2d 241 (1979); State v. Alexander, 184 N.J. Super. 615, 446 A.2d 1257 (1981); Key v. State, 563 S.W.2d 184 (Tenn. 1978); State v. McKim, 98 Wash.2d 111, 653 P.2d 1040 (1982) (cases which hold that an unarmed accomplice is subject to an enhanced penalty or minimum term). See, e.g., People v. Walker, 18 Cal. 3d 232, 133 Cal. Rptr. 520, 555 P.2d 306 (1976); Earnest v. State, 351 So. 2d 957 (Fla. 1977); State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980); State v. Stuart, 223 Kan. 600, 575 P.2d 559 (1978); People v. Paradiso, 248 N.Y. 123, 161 N.E. 443 (1928); State v. Hicks, 38 Or. App. 97, 589 P.2d 1130 (1979) (cases which hold that an unarmed accomplice is not subject to an enhanced penalty or minimum term).
An analysis of the relevant statutes indicates that, in those jurisdictions where an unarmed accomplice is subject to either an additional penalty or minimum term, only New Jersey and Washington have accomplice statutes similar to Alaska's. See N.J.S.A. 2C:2-6; RCW 9A.08.020. Arkansas, Iowa, Michigan, Nevada and Tennessee have statutes which provide that an accomplice is also to be punished as a principal. See, e.g., I.C.A. § 703.1; M.C.L.A. § 767.39; N.R.S. § 195.020; T.C.A. § 39-1-303.
Among the jurisdictions which hold that an enhanced penalty or minimum term does not apply to an unarmed accomplice, only Florida has a statute which expressly limits application of a three-year minimum term to a defendant "who had [a firearm] in his possession." West's F.S.A. § 775.087(2) (emphasis added). California, Idaho, Kansas and Oregon have firearm and accomplice liability statutes similar to Alaska's.
[4] K.S.A. 1976 Supp. § 21-4618 reads in pertinent part:
Probation and sentencing for certain crimes involving use of firearms. (1) Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. This section shall not apply to any crime committed by a person under eighteen (18) years of age. [Emphasis added].
[5] In People v. Walker, 18 Cal. 3d 232, 133 Cal. Rptr. 520, 555 P.2d 306 (Cal. 1976), the court reached the same result as the Kansas court. The California court noted that:
Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act. Such a direction is found in section 31 which fixes responsibility on an aider and abettor for a crime personally committed by a confederate. But the statute which defines aiders and abettors as principals in the commission of a criminal offense does not also purport to impose additional derivative punishment grounded on an accomplice's personal conduct, as those statutes which provide for such increased punishment "`do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.'" Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime.
Id. 133 Cal. Rptr. at 525, 555 P.2d at 311 (citations omitted).
In State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980), the Idaho Supreme Court also relied on general principals of statutory construction to support its decision that "only the person who actually used the gun can be subjected to the enhancement provisions of I.C. § 19-2520." Id. 614 P.2d at 977. The Idaho statute referred to "[a]ny person ... who carried, displayed, used, threatened, or attempted to use a firearm while committing the crime... .' Id. The court noted that "[w]hile the language of the statute clearly imposes enhancement of sentence provisions on the one who actually has the firearm, it is not evident from the language of the statute whether the legislature intended to apply the enhancement provision to co-principals." Id. 614 P.2d at 978. The court observed that where there is ambiguity, a criminal statute should be resolved in favor of lenity. Id. 614 P.2d at 977.
[6] RCW 9.95.040 provided for the Board of Prison Terms and Paroles to fix the period of the defendant's confinement. The statute placed certain limitations on the board:
(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.
(2) For a person previously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than seven and one-half years.
[7] AS 12.55.125(c) now provides in part:
(c) A defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms, subject to adjustment [for aggravating or mitigating factors]:
(1) if the offense is a first felony conviction and does not involve circumstances described in (2) of this subsection, five years;
(2) if the offense is a first felony conviction, other than for manslaughter, and the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense, ... seven years;
Thus under this statute, a defendant who was a first felony offender and possessed a firearm during the commission of an offense would face a presumptive sentence of seven years and his unarmed accomplice who was a first offender would face a presumptive sentence of five years. However, those sentences are subject to adjustment for aggravating and mitigating factors and may also qualify for adjustment by a three-judge panel. We believe that both the former code and the current code permit defendants who have similar levels of criminal responsibility to be treated similarly.
[8] Dailey also argues that Judge Hodges erred when he failed to reduce the sentence based on certain statutory mitigating factors. AS 12.55.155(d)(1), (2), (9) and (13). We conclude that Judge Hodges did not abuse his discretion when he found that these statutory mitigating factors had not been established. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344349/ | 258 Ga. 713 (1988)
373 S.E.2d 622
TEMPO MANAGEMENT, INC.
v.
DeKALB COUNTY, GEORGIA.
46025.
Supreme Court of Georgia.
Decided November 23, 1988.
Morris, Manning & Martin, Richard P. Reinhart, Ann K. Moceyunas, for appellant.
*715 Baxter P. Jones, Lisa Foster, for appellee.
GREGORY, Justice.
Tempo Management, Inc. (Tempo) appeals from a conviction in the Recorders Court of DeKalb County for violating the DeKalb County fire code. At trial Tempo alleged certain portions of the fire code are unconstitutional. This appeal is from the trial court's ruling that the code sections challenged are not unconstitutional for the reasons alleged.
1. DeKalb County Ordinance § 4-3001 et seq. adopts the 1982 edition of the Fire Prevention Code of the National Fire Protection Association (NFPA). The DeKalb County fire code provides that "All referenced NFPA codes shall be the latest editions. ..." Tempo argues this is an unconstitutional delegation of legislative authority to the NFPA under 1983 Georgia Constitution, Art. III, Sec. I, Par. I, because it permits the NFPA to enact new regulations which will automatically become part of the DeKalb County Code. See Johnston v. State, 227 Ga. 387 (181 SE2d 42) (1971) and Featherstone v. Norman, 170 Ga. 370 (4) (153 S.E. 58) (1930).
We find it unnecessary to reach the merits of this claim because we hold that Tempo lacks standing to raise this issue. It is not disputed that the "edition" of the NFPA regulations currently in effect is the one which was originally adopted by the DeKalb County Commission in 1982. Thus, there are no "latest editions" which could, arguably, amount to an unconstitutional delegation of legislative authority. "One not adversely affected by a law will not be allowed to challenge its constitutionality in court." Clark's Valdosta, Inc., v. City of Valdosta, 224 Ga. 331, 332 (161 SE2d 867) (1968).
2. Tempo argues that the NFPA code provides no guidelines as to the definition of a fire hazard, but rather § 1-2.1 of the NFPA, in violation of due process, places unbridled discretion in the Fire Marshal to determine what constitutes a fire hazard.
Section 1-2.1 of the NFPA code provides in pertinent part,
The provisions of this Code shall apply equally to existing as well as new buildings. . . .except that existing buildings.. . .and conditions not in compliance with this Code may be permitted to continue unless in the opinion of the Fire Marshal they constitute a fire hazard to life or property. [Emphasis supplied.]
The term "fire hazard" is defined by the NFPA code as
any situation, process material or condition which, on the basis of applicable data, may cause a fire or explosion or provide *714 a ready fuel supply to augment the spread or intensity of the fire or explosion and which poses a threat to life or property. [Emphasis supplied.]
Tempo contends that under this definition the Fire Marshal has the discretion to conclude that almost any building is a "fire hazard." We do not agree.
The NFPA code makes allowances for existing buildings which may not meet all the standards required by the NFPA of new buildings by providing that noncomplying conditions may continue unless in the opinion of the Fire Marshal they constitute a "fire hazard." § 1-2.1. However, under § 2-1, the Fire Marshal may make a determination that a condition constitutes a fire hazard only upon "the basis of applicable data." Thus, the decision of the Fire Marshal must be based on objective criteria. Tempo has failed to show that such "applicable data" does not exist in codes, statutes, ordinances or in general scientific principles. Absent such a showing we are unable to say that the code section violates due process on the ground raised.
3. Last, Tempo argues that OCGA § 25-2-13 (b) (1) (B) has preempted the DeKalb County fire ordinance with regard to three story buildings[1] by enacting minimum fire safety standards. However, OCGA § 25-2-13 (b) (4), Ga. Laws 1984, pp. 1160, 1176 provides
Nothing in this subsection shall be construed as exempting any building, structure, facility, or premises from ordinances enacted by any municipal governing authority in any incorporated area or any county governing authority in any unincorporated area, except to the extent stated in paragraph (3) of this subsection relative to landmark museum buildings or historic buildings or structures.
As there is no contention that the buildings in question are landmark museum buildings or historic buildings, Tempo's preemption argument must fail.
Judgment affirmed. All the Justices concur.
NOTES
[1] At trial Tempo argued the buildings in question are three stories in height. The county maintains they are two stories. The trial court did not make a finding in this regard. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344346/ | 188 Ga. App. 618 (1988)
373 S.E.2d 633
SCOTT
v.
CITIZENS BANK OF AMERICUS.
76663.
Court of Appeals of Georgia.
Decided September 6, 1988.
Rehearing Denied September 30, 1988.
*623 James M. Skipper, Jr., for appellant.
Benjamin F. Easterlin IV, for appellee.
CARLEY, Judge.
In March of 1986, appellant-defendant executed a note in favor of the Bank of Webster (Bank). In April of 1986, the Bank was purchased by appellee-plaintiff. Thereafter, appellant failed to make timely repayment of his March 1986 note. Appellee then filed this action, seeking to recover against appellant on the note. Appellant answered and raised the affirmative defense of failure of consideration. Appellant also filed a counterclaim, seeking damages for abusive litigation, and attorney's fees and expenses pursuant to OCGA § 9-15-14.
Discovery established the following facts: In 1984, state banking examiners determined that the Bank had entered into a number of "criticized loans" and that the continued operation of the Bank should be pursuant to a "memorandum of understanding." Upon subsequently learning that the state bank examiners had not yet discovered the existence of another real estate loan which was in default, the Bank's president and the Bank's loan officer concluded that they would not disclose it. Instead, they devised a plan to remove this defaulted loan from the Bank's books before it was discovered by the state bank examiners. The plan contemplated that appellant, who was a close personal friend of the Bank's president, would execute a promissory note in favor of the Bank, but would not receive any of the funds represented thereby. Instead, the funds would be provided to another who would then use them to purchase the property which secured the defaulted loan. The president and the loan officer of the Bank acknowledged that their plan was to create a "paper trail" and to use appellant "as sort of a strawman, third party, just as somebody to sign the notes and create the documents to satisfy banking requirements." Although the bank officers both thought that appellant understood *619 what their plan entailed, appellant himself denied that he ever had knowledge of the specifics of the plan. It is undisputed, however, that appellant did execute the note in favor of the Bank and that the plan was initiated. Although appellant had been told that the Bank's president would repay the note within several weeks, no repayment was made. The March 1986 note which appellant had executed in favor of the Bank was a renewal note.
After discovery had established these facts, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellee and denied appellant's motion. Appellant appeals from the trial court's order on the cross-motions for summary judgment.
1. It is undisputed that appellant never received any of the proceeds represented by the note and that, in signing the note, appellant was intending only to perform a favor for the Bank's president. Appellant urges that this establishes the viability of his defense of failure of consideration, and that the trial court therefore erred in denying his motion for summary judgment and in granting summary judgment in favor of appellee.
That appellant himself did not receive any of the proceeds of the note which he admittedly executed as a favor to another is not dispositive as to his non-liability. Instead, this evidence establishes that appellant occupies the status of an accommodation party. "An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it." OCGA § 11-3-415 (1). Under appellant's own version of the circumstances which surrounded his execution of the note, he signed it so as to accommodate the Bank's president in connection with the sale of certain realty and in the consequent satisfaction of the underlying loan which was secured by that realty. Compare Sellers v. C & S Nat. Bank, 177 Ga. App. 85 (338 SE2d 480) (1985), wherein the evidence of the circumstances surrounding the execution of the note showed that there was no accommodation of a third party's future transaction, but merely a gratuitous assumption of a third party's pre-existing indebtedness.
Notwithstanding the interpretation which may obtain in other jurisdictions, the concept of an "accommodation party" as it is recognized in Georgia is a broad one and there is no requirement that the accommodated party himself be an actual party to the note. See Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 857 (a) (229 SE2d 765) (1976); Wall v. Fed. Land Bank of Columbia, 156 Ga. App. 368, 372 (3) (274 SE2d 753) (1980). Accordingly, the fact that the note may have been signed by appellant in the capacity of the maker thereof and that the Bank's president himself did not sign the note in any capacity whatsoever will not preclude a finding that, under the existing circumstances, appellant, in signing the note, was in actuality *620 signing it as an accommodation party for the Bank's president. Since the undisputed evidence as to the circumstances which surrounded appellant's execution of the note showed that he was an accommodation party, he would have no viable defense of failure of consideration. "The accommodation party cannot legally assert lack of consideration for his accommodation as the value received by the [accommodated party] ... is the consideration for which the accommodation party bargained. [Cits.]" Lewis v. C & S Nat. Bank, supra at 858 (a). See also Motz v. Landmark First Nat. Bank, 154 Ga. App. 858 (1) (270 SE2d 81) (1980). Therefore, appellant's undisputed status as an accommodation party renders nonviable his failure of consideration defense.
2. The purported illegality of the consideration for appellant's execution of the note is not a viable defense to his liability thereon. Appellant did not plead illegality as an affirmative defense to his liability on the note. Accordingly, neither he nor this Court would be authorized to raise illegality as an issue on this appeal. See generally First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 816 (3) (285 SE2d 203) (1981). Thus, a reversal of the trial court on the basis of the defense of illegality would not be authorized in this case.
Moreover, the evidence of record shows that a defense of illegality would not be viable, even if it had been properly raised by appellant. The underlying transaction at issue was merely an advancement of funds which appellant agreed to repay as evidenced by his execution of the note. This transaction was no more illegal than any other loan transaction evidenced by a promissory note. It may have been intended that the transaction serve as a means for removing a defaulted real estate loan from the Bank's books, but this would not render the transaction illegal. Financial institutions are certainly authorized to arrange for the removal of such loans from its books under the most favorable terms that can be negotiated. There may have been an element of unethical behavior underlying this particular transaction, because it was timed so as to remove the defaulted loan from the Bank's books prior to its discovery by the bank examiners. However, this unethical behavior would not render the note unenforceable against appellant. Any possible improper timing of the transaction was, at most, collateral to the loan itself, the object of which was otherwise entirely legal. The consummation of a new transaction resulting in the payment of a loan which is in default is not illegal simply because the bank examiners had not yet discovered the existence of the old loan. "For a contract to be illegal under [OCGA § 13-8-1] the purpose or object of the contract must be illegal. [Cits.] However, this rule has been held inapplicable where the object of the contract is not illegal or against public policy, but where the illegality is only collateral or remotely connected to the contract. [Cit.]" Shannondoah, *621 Inc. v. Smith, 140 Ga. App. 200, 202 (230 SE2d 351) (1976).
The record shows that one whom appellant assumed to be his friend abused that friendship so as to induce appellant assumed to be his the note and thereby facilitated the payment of a loan which was in default and its removal from the Bank's books. This would undoubtedly warrant a moral censure for appellant's so-called friend. It would not, however, allow appellant to plead the defense of illegality to his unconditional liability as an accommodation party to repay the borrowed funds in accordance with the terms of the note he executed.
3. The fact that the notes were blank when executed by appellant does not affect his indebtedness evidenced by those instruments. Under OCGA § 11-3-115, a blank note becomes enforceable if completed in accordance with the authority given. The evidence of record establishes that appellant did authorize completion of the note, his only real contention being that he received no consideration for his authorization in that regard. Accordingly, this defense would not be viable. See generally Harbage v. Dollar Farm Prods. Co., 166 Ga. App. 561 (305 SE2d 25) (1983).
4. Appellant also urges that the evidence of record fails to show the amount which was due on the note. However, appellant had admitted his execution of the note. He did not deny the non-payment of any of the indebtedness evidenced thereby, but denied only his liability as to any of the indebtedness which the note evidenced. Since appellant's defenses to liability had all been pierced, appellee had a prima facie right to judgment for the face amount of the note. See National Bank of Ga. v. Keriaze, 163 Ga. App. 652 (294 SE2d 688) (1982); Freezamatic Corp. v. Brigadier Indus., 125 Ga. App. 767 (189 SE2d 108) (1972).
5. The trial court correctly granted summary judgment in favor of appellee and correctly denied appellant's motion for summary judgment.
Judgments affirmed. Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Deen, P. J., Sognier, and Benham, JJ., dissent.
DEEN, Presiding Judge, dissenting.
The evidence of record demanded a finding that Scott actually received no funds in exchange for signing any of the promissory notes, but that fact does not avail Scott with his contention that the renewal note sued on was unenforceable due to lack of consideration. Under OCGA § 11-3-408, a new consideration is not necessary for renewal note. James Pair, Inc. v. Gentry, 134 Ga. App. 734 (215 SE2d 707) (1975). Concerning the series of promissory notes executed by Scott that created the antecedent debt renewed by the promissory note sued on, consideration may exist if any benefits accrued to Scott or *622 any detriment was suffered by the bank. Zachos v. C & S Nat. Bank, 213 Ga. 619 (2) (100 SE2d 418) (1957). The benefit bargained for by the promissor may actually flow to another party. OCGA § 13-3-42 (d); Bowman v. McDonough Realty Co., 143 Ga. App. 128 (2) (237 SE2d 647) (1977). In the instant case, it was undisputed that Scott's execution of the promissory notes resulted in some benefit to a third party and that the bank suffered some loss.
However, I find convincing Scott's additional contention that even if consideration existed, the note was unenforceable because the consideration was illegal. OCGA § 13-3-45 provides that "[i]f the consideration is illegal in whole or in part, the whole promise fails." "`An illegal consideration consists of any act or forbearance, or a promise to act or forbear, which is contrary to law or public policy.' ... `It is a general rule that agreements against public policy are illegal and void.'" Hanley v. Savannah Bank &c. Co., 208 Ga. 585 (68 SE2d 581) (1952). In the instant case, the arrangement devised by Dekle and Castleberry and participated in by Scott was nothing more than a scheme to conceal information or a predicament that should properly have been disclosed to the bank examiners. To enforce Scott's participation in that scheme would further the perpetration of fraud, and this court should not hesitate to consider that contrary to public policy, regardless of whether Scott specifically pled illegality of consideration as an affirmative defense or not.
Further, I cannot concur with the majority opinion's conclusion that Scott was an accommodation party under OCGA § 11-3-415 (1). That Code section states that "[a]n accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it." The plain, ordinary, and unmistakable meaning of that statute is that the accommodated party must be an actual party to the instrument. If this court intimated otherwise in Lewis v. C & S Nat. Bank, 139 Ga. App. 855 (229 SE2d 765) (1976), and Wall v. Fed. Land Bank of Columbia, 156 Ga. App. 368 (274 SE2d 753) (1980), this court simply misconstrued the statute. However, it is unclear in those cases whether the accommodated parties were not also parties to the promissory notes, and those cases thus should not be so strongly cited as authority for the proposition stated and applied by the majority opinion.
In summary, the promissory note in this case was void and unenforceable because of the illegality of the consideration. The trial court should have denied summary judgment for the appellee and granted it for the appellant. Accordingly, I must respectfully dissent from the majority opinion's affirmance of the trial court's opposite disposition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344363/ | 675 P.2d 566 (1983)
STATE of Utah, Plaintiff and Respondent,
v.
DeLyle V. WATTS, Defendant and Appellant.
No. 18847.
Supreme Court of Utah.
December 28, 1983.
Sumner J. Hatch, Salt Lake City, for defendant and appellant.
Robert N. Parrish, Salt Lake City, for plaintiff and respondent.
HOWE, Justice:
A jury convicted the defendant of second degree murder in the death of fourteen month old Christopher Goodman, after the trial judge denied defendant's motions to dismiss and to direct a verdict of acquittal. Defendant claims that the evidence was insufficient to link him to the crime and thus the trial court should not have submitted the case to the jury. We recapitulate the facts in a light most favorable to the jury verdict.
Defendant and Deborah Goodman, mother of Christopher and of another son, three year old Adam, met in April of 1981. About September 12, 1981, defendant and Deborah moved into a home together. Deborah had a part-time job, and defendant babysat both children during her absence. One incident, requiring medical attention, had happened shortly before the couple established a common household. On September 1, defendant was alone with Christopher. Deborah returned home from the *567 doctor just moments after defendant had pushed Christopher with sufficient force and pressure to lift him off the ground and cause him to fall on his head. The resulting triangular bruise extended from the bridge of his nose to the hairline. The child vomited two hours later and the mother took him to the doctor because she feared a concussion. Defendant's explanation for that incident was that Christopher "didn't want his mother to leave and had been a little monster." He was picking at the plants, rolling the records and throwing food on the floor. Defendant had become upset. Photographs admitted into evidence showed that on that day Christopher had three bruises on his face and two on his back. Defendant left Deborah's home immediately after the incident.
On Saturday, September 19, Deborah left for work around 10:00 a.m. and defendant testified that he awoke the children shortly thereafter. He changed Christopher after breakfast when he noticed his runny diaper. Defendant admitted that he did not like changing diapers and that he was upset with the baby, but not enough to hurt him. He put him in the bathtub to rinse him off with a shower massage. The child screamed when he sprayed him but stopped after defendant finished. Deborah's two brothers dropped in around 11:30 a.m. Defendant sprayed Christopher once more with the showerhead before he put the children down for a nap. Purportedly Deborah's brothers were there at that time. When Deborah returned home around 2:30 or 3:00 p.m. she noticed that the children were sleeping longer than normal. Defendant then told her that the thump they had heard in the children's bedroom directly above theirs around 6:00 a.m. earlier that day probably was Christopher falling out of his crib; that he was on the floor outside his bed when defendant picked him up that morning. Deborah went to wake the children at 4:30 p.m. and noticed that Christopher had just vomited. The child had been well the night before when she had last seen him. Deborah took his temperature and it registered at 101°. She bathed him and noticed three scratches near his navel. She and the defendant felt the child's stomach to see if he was hurting. The child winced and they took their hands off. Christopher was listless and threw up twice more that night.
On Sunday, September 20, Christopher drifted in and out of sleep. He had no bowel movement but was grunting. He could not hold food down. He continued vomiting. His temperature was 102°. That night he had a fine blue or silver line around his lips. His stomach started to get hard and swollen. Defendant left the house after he had a quarrel with Deborah over whether they should have moved in together. He spent the night outdoors and went to his mother's house the next morning.
On Monday, September 21, Christopher's condition worsened. A blue bruise started to appear around the navel. His stomach was hard and hot and his feet were cold. Blue blotches appeared on his legs. Deborah called the doctor in the early afternoon and took the child to the hospital around sunset. Christopher died on the way there.
The night after Christopher died, Deborah had a conversation with the defendant in which he said "I hope I didn't hurt him when I put my hand on his stomach."
The State Medical Examiner's credentials included a publication he had written on blunt force injuries. He testified that an external autopsy performed on Christopher on September 22 revealed numerous bruises, predominantly on his left side, estimated to be 3 to 4 days old. An internal examination revealed three bruises of the scalp, two in the area of the left ear and one on top of the head. There was a depressed skull fracture above and behind the left ear, apparently the result of a blow struck by the corner of an object, consistent with the corners of the showerhead. The fracture and bruises were 3 to 4 days old. The skull fracture had to have been caused by the application of a great deal of force. It was a definite coup injury, an injury medically defined as resulting from a moving object hitting the stationary head. *568 An internal examination of the child's abdomen revealed a perforation of the small intestine with resulting peritonitis, again 3 to 4 days old. The rupture was caused by a severe blow from an object sustained in the area of the external bruise near the umbilicus, again consistent with the size of the showerhead. The medical examiner determined the cause of death as peritonitis, probably contributed to by the head injury, and the manner of death as a homicide. The general health of the child, apart from the separate injuries to the head, face, front and back of the body, was good. There was no evidence of any natural disease.
Reduced to essentials, the issue is simply whether there was evidence adduced at trial from which the jury could have found the defendant guilty beyond a reasonable doubt of murder in the second degree. Contradictory testimony alone is not sufficient to disturb a jury verdict. To overturn a verdict on appeal for insufficiency of evidence, this Court must find that reasonable minds must necessarily entertain a reasonable doubt as to the defendant's guilt. State v. Petree, Utah, 659 P.2d 443 (1983); State v. Nebeker, Utah, 657 P.2d 1359 (1983); State v. Howell, Utah, 649 P.2d 91 (1982). Nor is it our function to determine guilt or innocence or the credibility of conflicting evidence and the reasonable inferences to be drawn therefrom. State v. McCardell, Utah, 652 P.2d 942 (1982); State v. Wilson, Utah, 565 P.2d 66 (1977); State v. Romero, Utah, 554 P.2d 216 (1976).
The defendant assails the jury verdict on the ground that there was not a scintilla of evidence in the record from which the jury could have found the defendant guilty of murder in the second degree. He maintains that the jury failed to consider the included crimes of manslaughter or negligent homicide, but fails to buttress that contention by more than bald assertions.
The jury was instructed on the elements of murder in the second degree, manslaughter and negligent homicide. U.C.A., 1953, §§ 76-5-203, 76-5-205 and 76-5-206 respectively. In defining negligent homicide for the jury, the court instructed it that "criminal negligence," was the failure to perceive a risk, a deviation from ordinary care which is marked by conduct that is of an utterly careless nature with an indifference to consequences. To find the defendant guilty of the crime of manslaughter, the jury was instructed that it must find the defendant to have acted unlawfully and recklessly, or that he acted under the influence of extreme mental or emotional disturbance for which there was a reasonable excuse. The jury was instructed on those elements of murder in the second degree applicable to this defendant set out in § 76-5-203 as follows:
Criminal homicide constitutes murder in the second degree if the actor:
(a) Intentionally or knowingly causes the death of another; or
(b) Intending to cause serious bodily injury to another, he commits an act clearly dangerous to human life that causes the death of another; or
(c) Acting under circumstances evidencing a depraved indifference to human life, he engaged in conduct which creates a grave risk of death to another and thereby causes the death of another;
The essential terms of that section, as well as the lesser included offenses just referred to, were defined for the jury in language directly borrowed from the statute, gainsaying defendant's inference that no consideration was given to the instructions on manslaughter and negligent homicide. It thus became the task of the jury to assess the manifestation of the defendant's conduct under various distinct degrees of culpability: (1) his failure to perceive the risk of death, § 76-2-103(4), constituting negligent homicide; (2) his conscious awareness of, but equally conscious disregard for, the probable consequences of his conduct, § 76-2-103(3), constituting manslaughter; and (3) intent, knowledge or "depraved indifference" as set out under § 76-5-203 ante. "Depraved indifference to human life" is a term not defined in the statute, State v. Day, Utah, 572 P.2d 703 *569 (1977), but defined for the jury as "evidenced by ill will, hatred, spite or evil intent. A `depraved' mind is a mind which has become inflamed by some cause to such a degree that it ceases to care for human life and safety."
It is the exclusive province of the jury to grade the degree of culpability. Intent need not be directly proved but may be inferred. State v. Wardle, Utah, 564 P.2d 764 (1977). The conduct and circumstances manifesting depraved indifference to human life are measured by the greatness of the risk and the lack of justification for the creation of that risk. State v. Nicholson, Utah, 585 P.2d 60 (1978) (Wilkins, J., concurring). The defendant in People v. Drumheller, 15 Ill. App. 3d 418, 304 N.E.2d 455 (1973) appealed on similar grounds as the defendant here. It was established at trial there that the defendant had killed a fourteen month old child of his live-in girlfriend by hitting him with a fist in the stomach. Cause of death, similar to here, was acute diffused peritonitis resulting from an explosive rupture of the duodenum inflicted by external trauma. In upholding the murder verdict the court reasoned that
[i]t is not necessary to directly prove that [defendant] had an intent to kill, only that he voluntarily and willingly committed an act, the natural tendency of which was to destroy another's life. In such instances the intent can be implied or inferred from the character of the act [citations omitted]. Further, the fact that defendant, on three previous occasions, inflicted injuries upon the child, refutes the suggestion that his actions were accidental or reckless. His act formed sufficient basis for the jury to conclude beyond a reasonable doubt that the defendant knew or should have known that his conduct ... would create a strong probability of death or great bodily harm. We hold that this evidence sustains the jury's conclusion as to the required mental state. Granted, under given circumstances, a fatal blow from a bare fist may not be considered murder, but where disparity in size and strength are so great, such disparity can warrant a conviction for murder.
Id. 304 N.E.2d at 457, 458. Accord State v. Mendell, 111 Ariz. 51, 523 P.2d 79 (1974).
Defendant incorrectly assumes that his mere denial of any criminal deed and the lack of direct evidence in this case mandates our reversing his conviction. But we cannot ignore that the pernicious acts of the child abuser are always attended by secrecy, denied by protestations of innocence, and "peculiarly identified by the marked discrepancy between the clinical or physical findings and the historical data provided by the [caretaker]." State v. Tanner, Utah, 675 P.2d 539 (1983). Nor are we unmindful of the propensity of knowledgeable intimates to stand mute for reasons known to them alone. But we have stated many times before that circumstantial evidence alone may be competent to establish the guilt of the accused, so long as it excludes every reasonable hypothesis other than the defendant's guilt. State v. Clayton, Utah, 646 P.2d 723 (1982), affirming second degree murder conviction on circumstantial evidence linking the defendant to the killing of a ninety-one year old man; State v. John, Utah, 586 P.2d 410 (1978), affirming manslaughter conviction for child killing where only circumstantial evidence pointed to the defendant; State v. Schad, 24 Utah 2d 255, 470 P.2d 246 (1970), affirming second degree murder for death resulting from mutual acts of sodomy, where defendant's guilt was inferred from circumstantial evidence only. Accord State v. Blocher, 10 Or. App. 357, 499 P.2d 1346 (1972), affirming second degree murder of defendant's stepchild, where child was in her exclusive care and discrepancies between statements on arrest and at trial, and inferences could have been drawn from circumstantial evidence; People v. Weisberg, 265 Cal. App. 2d 476, 71 Cal. Rptr. 157 (1968), second degree murder affirmed where it was established by inference that a crime was committed and the accused was the perpetrator thereof; People v. Fuentes, 253 Cal. App. 2d 969, 61 Cal. Rptr. 768 (1967), affirming manslaughter conviction where defendant who had exclusive *570 control over child did not admit to crime which was proved by circumstantial evidence; State v. Herrera, 236 Or. 1, 386 P.2d 448 (1963), affirming second degree murder of defendant accused of kicking twenty-three month old boy to death, where defendant was the only person who could have committed the crime.
The defendant claims that no corpus delicti exists, that the evidence is insufficient to prove that a crime was committed, and even if it were, that it was insufficient to prove the criminal agency of the defendant. In support of this proposition he cites State v. Petree, supra, and State v. Bassett, 27 Utah 2d 272, 495 P.2d 318 (1972). Both are clearly distinguishable. In Bassett, the State completely failed to adduce any evidence to show that either of the defendants committed any act or omission which resulted in the death of their baby, and the source of her injuries was never established. In Petree, the skeletal remains of the victim were found many months after her death, the result of a homicide. This Court found that the link coupling the defendant with the crime was too tenuous to uphold the conviction, where the only circumstantial evidence pointed to the defendant as the last person to have seen the victim alive, and to his dreams which seemed to inculpate him in her death. We held that although the corpus delicti had been established, the evidence was insufficient to convict the defendant of the crime. "The fabric of evidence against the defendant must cover the gap between the presumption of innocence and the proof of guilt." Id. at 444, 445.
Conversely here, there is no speculative leap across that gap to sustain the verdict. The jury was asked to decide three questions:
(1) Was Christopher's death a homicide or was it an accident? The medical examiner ruled that the death was a homicide, inconsistent with a pattern of injuries attributable to accidental falls. The jury was told that the majority of the bruises were found on the left side of Christopher's body. The jury observed that the defendant was right handed. The defendant claimed that the child fell on top of a toy from his crib which was two to two and one-half feet high, and thus punctured his intestines. The jury chose to believe the expert witness.
(2) If it was a homicide, who was responsible for the killing? Christopher was in good health when his mother put him to bed on the night of September 18. When she returned in the afternoon on September 19, he had vomited and had an elevated temperature. By nighttime his stomach was hard and swollen. During the absence of the mother, the defendant was the exclusive caretaker of the child and there was sufficient evidence, although disputed, that he was less than happy with that role. Although he denied having touched the child in any way, he admitted having sprayed the child with the showerhead and the configurations of two wounds matched the size and shape of the showerhead. The jury was not compelled to believe the story of a fall from the crib that was never corroborated. The seeming concern on the part of the defendant that he might have hurt the baby when he felt his stomach in the presence of the mother may well have been construed by the jury as a smokescreen, behind which he hid a more offensive touching. And there was evidence of prior use of excessive force on the child, grave enough in its implications to warrant taking pictures of the September 1 injuries. The jury again believed the expert witness that the skull fracture and intestinal injuries were caused by a great deal of force applied with a blunt instrument having the shape of the showerhead.
(3) If the defendant was the person responsible for the criminal homicide, how high was the degree of his culpability? The jury may well have determined that no twenty-two year old man could fail to perceive the gravity of the risk involved in angrily hitting a small defenseless baby with any object the size and shape of the showerhead, thus excluding negligent homicide. It may well have concluded that the defendant's conduct was more than *571 reckless and that he was not under the influence of emotional disturbances for which there was a reasonable explanation or excuse, thereby excluding manslaughter. It may well have been convinced that the defendant's conduct exhibited a depraved mind, inflamed to such a degree that it appeared to be indifferent to the life or safety of this child making him guilty of murder in the second degree under the court's instruction, to which he has raised no objection. We decline to second guess the jury's perception of the defendant.
Affirmed.
HALL, C.J., and STEWART, OAKS and DURHAM, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2751238/ | November 13, 2014
JUDGMENT
The Fourteenth Court of Appeals
HELIX ENERGY SOLUTIONS GROUP, INC., HELIX SUBSEA
CONSTRUCTION, INC., AND HELIX WELL OPS INC., Appellants
NO. 14-14-00442-CV V.
MATTHEW HOWARD, Appellee
________________________________
This cause, an appeal from the trial court’s order signed May 27, 2014 in
favor of appellee Matthew Howard, was heard on the transcript of the record. We
have inspected the record and find error in the judgment. We therefore
DECLARE the order VOID, DISSOLVE the order, and REMAND the cause for
proceedings in accordance with the court’s opinion.
We further order that all costs incurred by reason of this appeal be paid by
appellee Matthew Howard.
We further order that the mandate be issued immediately.
We further order this decision certified below for observance. | 01-03-2023 | 11-13-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1344598/ | 675 P.2d 466 (1984)
Sam LOVE, Jr., Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-83-250.
Court of Criminal Appeals of Oklahoma.
January 26, 1984.
Mark Barrett, Sp. Counsel, Appellate Public Defender System, Norman, for appellant.
Michael C. Turpen, Atty. Gen., John O. Walton, Asst. Atty. Gen., Oklahoma City, for appellee.
*467 OPINION
BUSSEY, Presiding Judge:
Sam Love, Jr., hereinafter referred to as appellant, was convicted of Larceny of Merchandise from a Retailer, After Former Conviction of Two or More Felonies, in Oklahoma County District Court, Case No. CRF-82-2608. He was sentenced to twenty (20) years' imprisonment and he appeals.
Evidence presented at trial established that the appellant purchased a cassette tape at a Target store in Oklahoma City. He then removed a television valued at $169 from the shelf of the Target store and placed his packaged cassette tape on top of the television so that the receipt of the package could be seen. He left the store with the television, without paying for it. He was apprehended by two Target security officers in the parking lot outside.
The appellant's first two assignments of error concern the fact that, after the noon recess of the first day of trial, he failed to reappear, and the remainder of the trial was conducted in his absence. He first argues that the trial court erroneously concluded he had waived his right to be present at trial; and argues secondly that his interests in being present at trial outweighed the public interest in having the trial proceed. We disagree with both contentions.
According to the terms of 22 O.S. 1981, § 583, "[i]f the indictment or information is for a felony, the defendant must be personally present at trial... ." This Court stated in Roberts v. State, 523 P.2d 1150 (Okl.Cr. 1974), that:
By enacting 22 O.S. § 583 requiring the presence of a defendant at his trial, the Legislature intended to guarantee the right of the accused to appear at his own trial and, thereby, to be protected from trial during his involuntary absence. We do not feel compelled to extend the meaning of the statute to guarantee an accused the right to voluntarily absent himself from his trial, thereby affectuating a mistrial. Such a strained view would force the retrial of numerous cases which would otherwise lead to judgments. 523 P.2d at 1151.
See also, Sonnier v. State, 597 P.2d 771 (Okl.Cr. 1979); Delancy v. State, 596 P.2d 897 (Okl.Cr. 1979); Warren v. State, 537 P.2d 443 (Okl.Cr. 1975) cert. denied 422 U.S. 1047, 95 S.Ct. 2664, 45 L.Ed.2d 699 (1975).
In the present case, when it became apparent that the appellant was absent, a 65 minute recess was granted to find him. During that time, it was deduced that he had voluntarily gone to New Mexico to be a witness in a trial there.[1] We are convinced *468 that the trial court correctly concluded the appellant was voluntarily absent, thereby waiving his statutory right to be present at trial. Sonnier, supra, Roberts, supra.
The appellant's absence did not effect any change in the strategy of his defense, since counsel had never planned to call the appellant as a witness. Thus, in consideration of the circumstances surrounding the appellant's disappearance, and of the time and financial investment already made in the case by the State up to that point, we conclude that the trial court correctly decided to overrule the appellant's motion for mistrial and to proceed. Sonnier, supra; Delancy, supra; Warren, supra; Roberts, supra. The first two assignments are without merit.
The appellant's third and fourth assignments of error concern the prior felony convictions which were used to enhance his punishment under 21 O.S. 1981, § 51(B).
The second page of the information originally filed against the appellant erroneously alleged that he had three prior convictions for Forgery. The State was allowed to amend the information at trial to correct one of the allegations of Forgery to Carrying a Weapon into an Establishment Where Beer or Alcoholic Beverages are Consumed. The appellant now alleges it was error to permit the amendment.
No objection was made to the proposed amendment. Furthermore, the appellant had ample prior notice that he was being charged as an habitual offender under § 51(B), and was provided with sufficient information to allow him to investigate and defend against these allegations. The case numbers of all three prior felonies alleged at the preliminary hearing were correct. The only error was the one erroneously styled crime. We find no merit to his argument. Simmons v. State, 549 P.2d 111 (Okl.Cr. 1976); Jordon v. State, 327 P.2d 712 (Okl.Cr. 1958).
The appellant has also alleged that two of the prior convictions resulted from a single transaction, thus only one of those convictions should have been alleged in support of Section 51(B).[2] We first note that this matter was not raised at trial.[3]*469 Secondly, although the prior convictions are numerically sequential, and guilty pleas were entered to both on the same date, evidence presented by the state established that, upon arresting the appellant on the forgery charge in a bar, it was discovered that he was carrying a loaded weapon.[4] We are satisfied that the convictions stemming from these circumstances are not the type of interrelated convictions prohibited by Section 51(B). We find no reason to disturb the jury's verdict.
The judgment and sentence is AFFIRMED.
CORNISH, J., concurs.
BRETT, J., dissents.
BRETT, Judge, dissenting:
I respectfully dissent to this decision for the same reasons stated in my dissents to Delancy v. State, supra, at 899, and Warren v. State, supra, at 448.
NOTES
[1] The record reflects in pertinent part as follows:
THE COURT: Let the record reflect that it is now 2:35 P.M. The Defendant, who is on bond, has not returned to the Court, and we have waited and waited. You know something about this, Mr. Faulkner, if you want to put something into the record here. You told the Defendant to report back, and ____.
MR. FAULKNER (Defense Counsel): Yes, Your Honor, for the record, I asked the Defendant and witnesses to report back to the courtroom at 1:00 o'clock, so that I could confer with them briefly before the trial would reconvene at 1:30.
It is now 2:30, and I have had no messages, they have left no messages at my office, or anything to indicate that they're having trouble, and I have no knowledge as to the whereabouts of the Defendant.
THE COURT: He was in open court this morning when we voir dired the jury, and the jury was sworn to try the case. Opening statement has been made by the Prosecutor, and there is a record of that. All parties, the witnesses, the jurors, the Defendant were all ordered to be back in court at 1:30. I repeated that time at least twice. There ought to be a record of that.
The Court feels that it would frustrate justice if we would abort this trial. In view of the law, I intend to proceed without the Defendant in this matter.
MR. FAULKNER: For the record, Your Honor, I come on behalf of the Defendant, and ask the Court to declare a mistrial. To put this man to trial would deny him a certain statutory and constitutional right, the right to confront his accusers, and other statutory rights inherent with a trial. For these reasons I would ask the Court to declare a mistrial.
THE COURT: What I picked up about this case, with the bondsman here in court took it's hearsay information, but there was indications that he planned to go to New Mexico. You, yourself, had said he had a voucher to appear there in New Mexico as a witness. And there are indications that he would not return, and I think it's intentional. And I think it would frustrate justice if we did declare a mistrial, so your motion will be overruled.
Even upon this appeal, the appellant has made no assertion that his absence was other than voluntary.
[2] Title 21 O.S. 1981, § 51(B) states in pertinent part, "Felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location ... ."
[3] In the recent case of Bickerstaff v. State, 669 P.2d 778 (Okl.Cr. 1983), this Court held that this matter constitutes an affirmative defense. Although we do not apply Bickerstaff to the present case, we would emphasize that the burden is upon defendants to prove the convictions arose out of the same transaction or occurrence or series of events closely related in time and location.
[4] In addition, the copies of the judgments and sentences filed by the appellant upon this appeal reveal that the forgery charges stemmed from a check written by the appellant to "Environs Inc."; whereas the carrying a weapon charge stemmed from the fact that he had the weapon in the "Red Dog Saloon." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344622/ | 138 Ariz. 495 (1984)
675 P.2d 1314
STATE of Arizona, Appellee,
v.
Jesse BOJORQUEZ, Appellant.
No. 5767.
Supreme Court of Arizona, In Banc.
January 6, 1984.
*497 Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.
Robertson & Villarreal by Michael A. Villarreal, Florence, for appellant.
GORDON, Vice Chief Justice:
On November 18, 1982, a jury found appellant, Jesse Bojorquez, guilty of two counts of dangerous assault by a prisoner and one count of possession of a deadly weapon by a prisoner. Appellant was sentenced to life imprisonment for each of the assault counts and to four years imprisonment for the possession count. The sentences were to run concurrently to one another but consecutively to sentences appellant was then serving. Timely appeal was filed from the convictions. This Court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. We affirm the convictions and the sentences.
On July 28, 1982, appellant and his co-defendant, Rudy Dominguez, were inmates housed in an intensive custody cellblock at the Arizona State Prison. Early in the afternoon, they were outside their cells to do cleanup chores within their sixteen-cell pod. When it became apparent that the chores were not being done, they were ordered to either commence cleaning or to go back into their cells. They refused to do either. After verbal negotiations, they were told that they could remain in the common area of the pod until 3:00 p.m. when a mandatory prisoner count had to be conducted. At 3:00 p.m., appellant and Dominguez again refused to reenter their cells. They shouted obscenities at the guards and challenged the lieutenant in charge to "send [his] dogs in." When verbal negotiations were unsuccessful, the lieutenant ordered six guards to don riot gear. As the door to the pod was opened, appellant and Dominguez pulled shanks (prison-made knives) from their clothing and indiscriminately lunged at the incoming officers. Two officers suffered stab wounds before appellant and Dominguez were subdued.[1]
On appeal, appellant has raised three issues:
(1) Whether the trial court erred in refusing to give certain jury instructions;
(2) Whether the trial court abused its discretion in ruling that appellant's prior convictions were admissible for impeachment purposes; and
(3) Whether appellant was provided adequate representation by counsel.
JURY INSTRUCTIONS
Appellant contends that the trial court's failure to give any of four requested instructions on self-defense constitutes reversible error.[2] A criminal defendant is entitled to a self-defense instruction whenever there is the slightest evidence of justification for the defensive act. State v. Lujan, 136 Ariz. 102, 664 P.2d 646 (1983). However, where a requested self-defense instruction is not warranted by the evidence in the case, the trial court is under *498 no obligation to give it. State v. Williams, 132 Ariz. 153, 644 P.2d 889 (1982).
In the instant case, appellant did not testify in his own behalf. Rather, he attempted a self-defense defense through the testimony of other witnesses. Appellant's position is that he was unable to return to his cell because the door to it was closed. When the guards entered the pod, appellant argues, they were the first to use force and he merely defended himself. Several defense witnesses testified that appellant shouted "wait a minute, wait a minute" as the guards entered the pod.
The facts here are similar to those in Williams, supra. Williams also involved an altercation between penal officers and a prisoner. There, Williams had provoked the guard's assaultive behavior by ripping his commode from the wall, throwing porcelain at the guards, and setting fires. This Court noted that one who provokes another's use of force cannot claim self-defense unless the provoker meets the requirements of A.R.S. § 13-404(B)(3)(a) by withdrawing from the encounter or communicating to the other his intent to withdraw while believing he cannot safely do so. Id. at 156, 644 P.2d at 892. This Court found no evidence of Williams' withdrawal and no error in the trial court's failure to give self-defense instructions. However, we also noted that "[h]ad the defense presented evidence satisfying all of the elements of A.R.S. § 13-404, even if this evidence was in complete conflict with the state's evidence, appellant would have been entitled to an instruction on self-defense." Id.
Appellant argues that the testimony of his shouting "wait a minute, wait a minute" constitutes evidence of withdrawal. Assuming this to be true, the trial court properly instructed the jury regarding provocation:
"If the defendant provoked the use or attempted use of physical force, self-defense is not available unless two things happened:
"1. The defendant withdrew from the encounter or clearly communicated to the other person his intent to withdraw but reasonably believed that he could not safely do so; and
"2. The other person continues or tries to use physical force against him."
Appellant then argues that an inmate has the right to defend himself against the use of unnecessarily excessive force by a prison official. We agree, cf. State v. Martinez, 122 Ariz. 596, 596 P.2d 734 (App. 1979) (arrestee has right to self-defense against the use of excessive force by a police officer, even during arrest), but find the instructions that were given to be completely adequate. The trial court gave the following instructions regarding self-defense in the face of unnecessary force:
"The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
"A superintendent or other entrusted official of a jail, prison or correctional institution may use physical force for the preservation of peace, to maintain order or discipline, or to prevent the commission of any felony or misdemeanor.
"A defendant is justified in using or threatening physical force in self-defense only if a person authorized to use physical force exceeds that allowed by law."
Thus, the jury was properly instructed that prison officials have the statutory right to use that amount of physical force necessary to maintain order within the prison. See A.R.S. § 13-403(2). The jury was also told that if that amount of force had been exceeded, appellant would have been justified in using physical force to defend himself. See A.R.S. § 13-404(A).
Appellant's other proffered instructions were properly rejected by the trial court. One instruction indicated that mere words, which do not include a threat to use force, do not justify threatening or using physical force. See A.R.S. § 13-404(B)(1). The trial court held, and we *499 agree, that while that is true in most cases, A.R.S. § 13-403(2) creates an exception and gives prison officials the right to use force whenever necessary to maintain order. That necessity may arise, as it apparently did here, when only words, not including a threat to use force, have been spoken. The requested instruction, therefore, was not warranted by the facts as shown by the evidence and was properly rejected. A second instruction concerned justification of actions taken under duress. See A.R.S. § 13-412(A). Because there was no evidence presented at trial that appellant was compelled or coerced to act as he did by any threat of force against him, this instruction was properly refused. The third instruction at issue indicated that actual danger was not necessary to justify self-defense, perceived danger being a sufficient justification as long as the perception was reasonable. However, the reasonableness of appellant's belief that he was in danger and whether that danger was real or merely apparent were never facts put into issue at the trial. The instruction pertaining to those issues, therefore, was properly refused. We find no error in the jury instructions given or those rejected.
PRIOR CONVICTIONS
At appellant's omnibus hearing, the prosecution indicated that it would use appellant's prior convictions for impeachment under Ariz.R.Evid. 609 if appellant testified at the trial. The prosecution agreed not to use the prior convictions as "other bad act" evidence under Ariz.R.Evid. 404 or for enhancement of punishment under A.R.S. § 13-604. Ariz.R.Evid. 609 provides:
"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement, regardless of the punishment."
We have noted, in State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980), that, when the prosecution intends to offer a prior conviction to impeach a defendant, the trial judge should require the state to show the date, place, and nature of the prior convictions and any other relevant circumstances. The defendant should be permitted to rebut the state's presentation by demonstrating the prejudicial effect to the defendant if the evidence is admitted. The trial judge should then consider the arguments made and make a finding on the record as to whether the probative value of the evidence substantially outweighs the danger of unfair prejudice. Only upon a showing that the trial judge abused his discretion will an appellate court disturb that finding. State v. Sullivan, 130 Ariz. 213, 635 P.2d 501 (1981); State v. Hunter, 137 Ariz. 234, 669 P.2d 1011 (App. 1983).
Of appellant's numerous prior convictions, the prosecution intended to use four incidents, amounting to eight counts, as impeachment. Each was described to the trial judge in sufficient detail to satisfy the Ellerson requirements. Defense counsel argued strongly that the prejudicial effect of the admission of these prior convictions, several of which involved assaults with a deadly weapon and two of which involved the killing of prison guards, outweighed their probative value. The prosecution responded with assertions that, because self-defense was to be raised, appellant's credibility was relevant and that the jury should be given all relevant and material information. The trial judge then made the following finding:
"* * * if in fact this is a self-defense case, I think that those conditions would be probative as to who was telling the truth, as to who was the aggressor [and as to] who do you believe. If this defendant has been involved in that situation prior to this time, then I think it would be probative. I think the probative *500 value would outweigh the prejudicial effect.
* * * * * *
"My ruling would be that each of the eight felony convictions then would be admissible for impeachment purposes if in fact [the defendant] takes the stand."
Appellant argues that the trial judge's ruling was made in violation of "the dictates of Rule 609." However, having read a transcript of the hearing, it is clear to us that the trial judge fully complied with the requirements of Rule 609 as set forth in Ellerson and Sullivan.[3] We find no abuse of discretion.
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant asserts, but does not argue, that his trial counsel ineffectively assisted his defense. A criminal defense attorney must demonstrate at least minimal professional competence. State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982). We have searched the entire record pursuant to A.R.S. § 13-4035 and have found no evidence of ineffective assistance. Trial counsel filed appropriate pre-trial motions on appellant's behalf. He cross-examined the state's witnesses and witnesses for the co-defendant; he presented witnesses on behalf of appellant; he made objections and motions during trial. Trial counsel's waiver of closing argument and tactic of relying upon the court's jury instructions does not constitute ineffective assistance of counsel. As our Court of Appeals has noted, "in some cases the wisest trial tactic is to keep quiet * * *. We refuse to equate silence with incompetence." State v. Martinez, 19 Ariz. App. 417, 418, 508 P.2d 82, 83, cert. denied, 414 U.S. 1027, 94 S.Ct. 456, 38 L.Ed.2d 320 (1973).
The convictions are affirmed.
HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.
NOTES
[1] Appellant and Dominguez were both tried for charges stemming from this incident. Both were found guilty. This Court has previously reviewed and affirmed Dominguez' conviction in a memorandum decision.
[2] We note that one of these four proposed instructions was indeed given by the trial court.
[3] The author of this opinion has not retreated from the stance expressed in his dissent in Sullivan that prior convictions for similar crimes should be admitted sparingly. In such a case, the jury is perhaps likely to infer that "if he did it once, he probably did it again." See Sullivan, 130 Ariz. at 219, 635 P.2d at 507 (Gordon, J., dissenting). However, here the issue of self-defense was critical. As far as the record on appeal indicates, appellant's prior convictions did not involve self-defense claims. If the prosecution, in response to appellant's self-defense assertion, had planned to impeach him by implying that "every time he's charged with something, he claims self-defense," our result might be different. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2215633/ | 218 Cal.App.2d 267 (1963)
THE PEOPLE, Plaintiff and Respondent,
v.
ANDREW WHITE, Defendant and Appellant.
Crim. No. 4225.
California Court of Appeals. First Dist., Div. One.
July 15, 1963.
Andrew White, in pro. per., and Donald C. Knutson, under appointment by the District Court of Appeal, for Defendant and Appellant.
Stanley Mosk, Attorney General, Albert W. Harris, Jr., and Barry L. Bunshoft, Deputy Attorneys General, for Plaintiff and Respondent.
SULLIVAN, J.
After a trial by jury, appellant was convicted of burglary in the first degree. (Pen. Code, 459, 460.) He appeals from the judgment.
On March 28, 1962, at approximately 5 p.m., the victim Johnny R. Rin left his room in the Sherman Hotel in Oakland to go to work. He locked his door. When he returned from work the next morning at about 5 a.m. he noticed that there were little pieces of wood chipped off the door and that there was a hole in it next to the lock. Upon entering the room, he saw some of his possessions scattered on the top of his dresser. His wallet which was on top of the dresser was open and his piggy bank with about four dollars in it, which he had left there, was missing.
On the night of March 28, at about 11:15 p.m., Officers Nielsen and DeVanna of the Oakland Police Department entered the Sherman Hotel. The record is not too clear on the point but it is a fair inference that they entered together. They went to the second floor of the building which was the first level of the hotel itself. There Nielsen saw appellant and one Tommie McGhee, codefendant in the court below but not a party to this appeal, coming around a corner of the hallway. They were "trotting or running" and as Officer Nielsen saw them, appellant had grabbed the door of the men's room. Nielsen ordered them to stop and they did. Officer DeVanna, who had started to check other rooms on the floor, heard Nielsen say "Stop" or "Hold it" and came up to the three men. *269
Nielsen, who knew both defendants, asked McGhee what he was doing in the hotel. McGhee replied that he was looking for one Frank Austin who he thought lived in the hotel. Nielsen saw a long screwdriver protruding from McGhee's overcoat pocket and asked McGhee if he could search him. The latter answered: "Yes, you can. Go ahead." Officer Nielsen then removed from the pocket the screwdriver and a silver table knife. After doing this, he noticed a "bulging under the left coat area." He pulled McGhee's coat back and found a wooden piggy bank under McGhee's armpit. This was the victim's bank. Nielsen asked McGhee where he had obtained the articles. McGhee explained that he had been working on a car earlier that day and had forgotten to remove the tools from his coat; that the piggy bank was his but that he had no key to it; and that he did not know how much money was in the bank.
In the meantime, Officer DeVanna interrogated the appellant. He asked appellant how the latter happened to be there and received an unintelligible reply. He then asked appellant if he could search him to which White replied: "Go right ahead and search." The officer then found an open blade pocketknife in appellant's pocket. It had yellow paint chippings on the blade. He also found in the pocket a driver's license bearing the name of John Rin, the victim.
After both officers had searched and questioned White and McGhee, they proceeded along the corridor from which the defendants had first appeared. In front of room No. 10, which was the victim's room, they found fresh shavings and chips of wood and paint on the floor. The door to the room appeared to have been jimmied. The door jamb itself was broken and there were "big hunks" of wood taken out of both the door and the jamb. The splinters appeared to be fresh. The doors of the other rooms were checked but did not disclose the same condition.
Appellant testified that he left work at 10:45 and arrived at the Sherman Hotel at about 11 p.m.; that he had gone there to see one Frank Austin; that he met the two officers in the hallway; that Nielsen told him to wait while he, Nielsen, went down the hall; that the other officer requested permission to search him but he refused; that Nielsen returned and pushed him up against the wall; that Nielsen again left and again returned holding a piggy bank and a screwdriver and bringing McGhee with him; and that the officers then handcuffed appellant and searched him, the search producing his *270 wallet, a cigarette case and two half-dollars. Thereupon, according to appellant, the police entered and remained in the victim's room for 20 or 30 minutes. When they came out they had a driver's license which, when questioned, appellant denied owning or ever seeing before. He also denied that he had entered the hotel with McGhee.
On the day of the burglary, appellant had been taking care of the invalid mother of one Jacob Sneed. Sneed, called as a witness for the defense, testified that appellant had come to Sneed's house at 8 a.m. and had left at about 10:30 p.m.
Codefendant McGhee also testified that he went to the hotel alone at about 11:30 p.m.; that he was going to see Frank Austin; that he found the piggy bank and screwdriver in the hallway; and that subsequently without his consent he was searched by Officer Nielsen.
Although appellant claimed at the trial that he had never seen the driver's license before it was shown to him by the police, Officer DeVanna testified that when at the hotel he asked White where the latter had obtained the driver's license, White replied that he had found it a few weeks previously. Inspector Daily of the Oakland Police Department, called in rebuttal, testified that at the city prison on the day following the burglary, he had taken a statement from appellant which the latter thereafter refused to sign. According to the witness, appellant first refused to say where he had obtained the driver's license but later stated that he had found it in the hallway of the Sherman Hotel.
Appellant contends that (1) the court erred in admitting, over his objections, evidence that was the subject of an illegal search and seizure; (2) that the court erred in instructing the jury that, as a matter of law, the evidence presented no question as to the degree of the crime; and (3) that the evidence was insufficient to sustain a conviction of burglary in the first degree.
In support of his first contention, appellant presents the bifurcated argument that the prosecution failed to sustain its burden of showing either (a) proper justification for the arrest and search or (b) a valid consent to the search. [fn. 1] Under *271 the first part of the argument, appellant urges that it was incumbent upon the prosecution to establish that appellant had been legally arrested before he was searched by Officer DeVanna, that under the evidence the police did not have reasonable cause to make the arrest and search, and that the arrest and search could not be justified by what the search turned up. The tenor of this argument is that the arrest preceded the search. The Attorney General on the other hand contends that the search was based upon appellant's consent, that such was the prosecution's theory in the trial court, and that reasonable cause is not here an issue. We think this position has merit. As we shall explain, we have concluded that the search of appellant was legal because validly consented to and that it is unnecessary for us to discuss appellant's claim that there was no reasonable cause for an arrest or search.
[1] Where one freely consents to a search of his person or voluntarily produces evidence against himself, "his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable." (People v. Michael (1955) 45 Cal.2d 751, 753 [290 P.2d 852].) It is therefore not necessary for the People to show that the search and seizure were reasonable as incident to a proper arrest when consent to the search is given before the officer makes the arrest. (People v. Michael, supra; People v. Burke (1956) 47 Cal.2d 45, 49 [301 P.2d 241]; People v. Silvers (1961) 196 Cal.App.2d 331, 335 [16 Cal.Rptr. 489]; People v. Valdez (1961) 188 Cal.App.2d 750, 755 [10 Cal.Rptr. 664].) "A search or seizure made pursuant to a valid consent before any illegal police conduct occurs is obviously not a product of illegal conduct." (People v. Haven (1963) 59 Cal.2d 713, 719 [31 Cal.Rptr. 47, 381 P.2d 927].) [2] "Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances." (People v. Michael, supra, 45 Cal.2d 751, 753; People v. Burke, supra; People v. Gorg (1955) 45 Cal.2d 776, 782 [291 P.2d 469]; *272 People v. Arketa (1962) 207 Cal.App.2d 194, 198 [24 Cal.Rptr. 257].) [3] Although each case must be decided on its own facts, the trial court's determination that the defendant consented to the search has been upheld where, in response to a request by the police to search the defendant's person or home, the defendant told the police to "go ahead" or used substantially equivalent language. (People v. Burke, supra, 47 Cal.2d 45, 48; People v. Arketa, supra, 207 Cal.App.2d 194, 196; People v. Campos (1960) 184 Cal.App.2d 489, 493 [7 Cal.Rptr. 513]; People v. Weire (1961) 198 Cal.App.2d 138, 141 [17 Cal.Rptr. 659]; People v. McGhee (1961) 196 Cal.App.2d 458, 459 [16 Cal.Rptr. 625].)
In the instant case, the testimony bearing upon the issue of appellant's consent to the search is in sharp conflict. Officer DeVanna testified that appellant consented to the search. [fn. 2] Appellant testified that when the officer asked permission to search him he refused and that he did not consent to the search. The testimony of the officer and appellant is also conflicting in respect to the surrounding circumstances of the search. Although the record does not clearly disclose exactly when appellant was placed under arrest, it can be reasonably inferred from the testimony of both officers that appellant and his codefendant McGhee were first searched with their consent and then, after the articles uncovered by the search pointed to their probable connection with the breaking into Rin's room, placed under arrest. Appellant on the other hand testified that Officer Nielsen pushed him against the wall, "patted" the outside of his pockets but did not then go through them, and then within a short time took appellant and McGhee to the front of the building, where the officers handcuffed appellant and searched him. A reasonable construction of appellant's testimony is that he was placed under arrest first and then searched.
The above conflict was resolved by the trial court which believed and accepted the testimony of the police officers. Sufficient evidence thus supports the trial court's determination that appellant's consent was freely given (People v. Arketa, supra, 207 Cal.App.2d 194, 198; People v. Cunningham (1961) 188 Cal.App.2d 606, 609 [10 Cal.Rptr. 604]) and that the search pursuant thereto was made before the police *273 arrested appellant, thus eliminating any claim of illegal police conduct in respect to the arrest. (People v. Haven, supra, 59 Cal.2d 713, 718-719.)
[4] We take up appellant's second contention. As pointed out, appellant was convicted of burglary of the first degree. Section 460 of the Penal Code provides in relevant part: "1. Every burglary of an inhabited dwelling house ... or building committed in the nighttime ... is burglary of the first degree. 2. All other kinds of burglary are of the second degree." Section 463 of the Penal Code provides: "The phrase 'night-time,' as used in this chapter, means the period between sunset and sunrise."
The trial judge gave the following instruction: "There are two degrees of burglary; however, the evidence in this case is such that as a matter of law it presents no question as to the degree of crime charged. And I instruct you that you must find the defendants or either of them either not guilty of the offense charged or guilty of burglary in the first degree."
Appellant argues that the evidence in the case only shows that the victim's room was entered sometime between 5 p.m. and 11:30 p.m. on March 28th, that the People offered no evidence to show the time of entry and that whether the room was entered at "nighttime" so as to constitute burglary of the first degree was a question of fact for the jury. It is therefore contended that the court erred in failing to instruct on the issue of the time of entry and in removing such issue from the jury by giving the foregoing instruction. [fn. 3]
In People v. Montalbano (1956) 146 Cal.App.2d 624, 625 [304 P.2d 36], it was said: "It is well settled that where a crime is divided into degrees the trial court may properly instruct the jury that if they find the defendant guilty they must find him guilty of the higher degree in any case where under the uncontradicted evidence he is guilty of the higher degree if guilty at all. The Supreme Court thus expressed the rule in a homicide case, People v. Alcalde, 24 Cal.2d 177, 188 [148 P.2d 627]:"
" 'It is proper to refuse to give an instruction as to a lesser degree, or as to an included lesser offense, if the evidence warrants only a verdict of first degree murder in the event the accused is guilty at all.' " (Italics added.) [fn. 4]*274
The uncontradicted evidence in the record shows that if appellant committed the burglary at all, he did so in the nighttime. Appellant testified that he had been at work and did not leave work until 10:45. His employer, Sneed, testified that appellant came to work at 8 a.m. and left at 10:30 p.m. Appellant testified that he did not arrive at the Sherman Hotel until 11 p.m. The police officers arrived at the hotel at 11:15 and shortly thereafter came upon appellant in the hallway. There is therefore nothing in the record from which the jury could have inferred that appellant, if he committed the crime at all, did not commit it in the nighttime.
[5a] Finally appellant argues "that the facts of the present case would not support a conclusion that the burglary occurred at 'nighttime' even if that issue had been presented to the jury. ..." This argument is answered by what we have said in respect to the preceding contention. The jury believed on substantial evidence that appellant committed the burglary. Appellant does not here contend that the evidence is insufficient to sustain his conviction of burglary in either the first or second degrees. His sole claim is that it is insufficient to sustain a conviction of burglary in the first degree. As we have pointed out, the jury having found the appellant guilty, under the uncontradicted evidence, they could only conclude that he committed the act at nighttime and was guilty of the higher degree of the crime.
[6] Appellant further contends that "[u]nless there is proof beyond a reasonable doubt that entry actually occurred at nighttime, conviction can be had only of the lesser offense, i.e., burglary of the second degree." In support of this contention appellant cites People v. Gilbert (1961) 188 Cal.App.2d 723 [10 Cal.Rptr. 799]; People v. Wozniak (1959) 167 Cal.App.2d 448 [334 P.2d 689]; People v. Golembiewski (1938) 25 Cal.App.2d 115 [76 P.2d 717]; People v. Richardson (1935) 10 Cal.App.2d 379 [51 P.2d 1114]; People v. Clements (1935) 6 Cal.App.2d 582 [44 P.2d 657].
Such contention cannot properly be made here. It is the trier of fact, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. "The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt." (People v. Daugherty (1953) 40 Cal.2d 876, 885 [256 P.2d *275 911], cert. denied, 346 U.S. 827 [74 S.Ct. 47, 98 L.Ed. 352]; People v. Robillard (1960) 55 Cal.2d 88, 93 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086], cert. denied, 365 U.S. 886 [81 S.Ct. 1043, 6 L.Ed.2d 199]; People v. Redrick (1961) 55 Cal.2d 282, 289 [10 Cal.Rptr. 823, 359 P.2d 255].) [5b] As we have pointed out above, the uncontradicted evidence in the record shows that if appellant committed the burglary at all, he did so in the nighttime. Conviction of first degree burglary is therefore supported by substantial evidence. Appellant does not challenge the sufficiency of the evidence to support the verdict in other respects. Indeed he could not successfully do so since there is ample evidence in the record to connect him with the burglary.
The five cases cited by appellant are distinguishable from the case before us and afford appellant no support. In People v. Gilbert, supra, 188 Cal.App.2d 723, the court directed that a conviction of first degree burglary be modified to that of second degree burglary because the evidence showed that the defendant had been in the residence for some time before the police came and there was no reasonable basis for the conclusion that he entered after sunset. In People v. Wozniak, supra, 167 Cal.App.2d 448, conviction of first degree burglary was reduced to that of second degree where the evidence only showed that the burglary occurred between 6:30 p.m. and 7:15 a.m. and there was nothing else in the record to indicate when the burglary occurred or to connect defendant with a burglary committed before sunrise. In People v. Golembiewski, supra, 25 Cal.App.2d 115, conviction of first degree burglary was modified to second degree burglary because, although the evidence showed that a burglary was committed and that the defendant committed it, there was neither direct nor circumstantial evidence that it was committed at nighttime. People v. Richardson, supra, 10 Cal.App.2d 379 and People v. Clements, supra, 6 Cal.App.2d 582 presented similar situations. In each, although the evidence showed the commission of the burglary by the respective defendant, no evidence showed that he committed the burglary in the nighttime.
The judgment is affirmed.
Bray, P. J., and Molinari, J., concurred.
NOTES
[fn. 1] 1. Both defendants were represented by the public defender in the trial court. Appellant states in his brief that objections made to the introduction of People's Exhibits 2 and 3 (the piggy bank and the driver's license) were summarily overruled. We note that only Exhibit 3 was taken from the person of appellant. Although respondent makes no point of it, the record indicates that Exhibit 2 was received in evidence without objection. With this exception, it appears that the public defender preserved a "continuing" objection to the introduction of any evidence claimed to have been illegally seized and during the course of the defense moved on behalf of both defendants to strike the testimony of both officers and to exclude all evidence received by the search. The objection to the introduction of the driver's license taken from appellant was overruled and the above motion to strike and exclude was denied.
[fn. 2] 2. The officer testified: "Q. Did you have a conversation with him when you__________ or after you approached him? A. I asked him how he happened to be in the hotel, and he just mumbled, he didn't come up with any clear answer. I then asked him if I could search his person. Q. Did he reply? A. He gestured, he said, 'Go right ahead and search.' "
[fn. 3] 3. Both parties are in agreement that the sun set on March 28, 1962, at 6:29 p.m.
[fn. 4] 4. In Montalbano the court noted that the rule stated by it had been applied to other burglary cases, namely People v. Kruger (1893) 100 Cal. 523 [35 P. 88]; People v. Tolli (1928) 93 Cal.App. 62 [268 P. 1078]; People v. O'Brien (1921) 53 Cal.App. 754 [200 P. 766]; People v. Howard (1918) 39 Cal.App. 216 [178 P. 865]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264199/ | 886 A.2d 762 (2005)
2005 VT 95
SYSTEMS AND SOFTWARE, INC.
v.
Randy BARNES.
No. 04-401.
Supreme Court of Vermont.
August 19, 2005.
*763 Wanda Otero-Ziegler and Stephen J. Soule of Paul Frank + Collins P.C., Burlington, for Plaintiff-Appellee.
Pietro Lynn and Matthew Siebel of Lynn, Thomas & Mihalich, P.C., Burlington, for Defendant-Appellant.
Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.
REIBER, C.J.
¶ 1. Defendant Randy Barnes appeals the superior court's order enjoining him from working for Utility Solutions, Inc. or any other direct competitor of his former employer, plaintiff Systems & Software, Inc., for a six-month period pursuant to the noncompetition agreement that he signed when he began working for plaintiff. He argues that the trial court should not have enforced the agreement because (1) plaintiff did not have a legitimate protectable interest; (2) the agreement contains unnecessary restrictions and imposes an undue hardship on him; (3) in any event, he did not violate the agreement; and (4) even if he did, plaintiff should be estopped from enforcing it. We affirm.
¶ 2. Plaintiff, a Vermont corporation located in Colchester, Vermont, is engaged in the business of designing, developing, selling, and servicing software that allows utility providers to organize data regarding customer information, billing, work management, asset management, and finance and accounting. In August 2002, plaintiff hired defendant as an at-will employee to become a regional vice-president of sales. At the time he commenced work for plaintiff, defendant signed a noncompetition agreement that, among other things, prohibited him during his employment and for six months thereafter from becoming associated with any business that competes with plaintiff. In April 2004, defendant voluntarily left his position with plaintiff and started a partnership with his wife called Spirit Technologies Consulting Group. Spirit Technologies' only customer was Utility Solutions, Inc., which, like plaintiff, services municipalities and utilities nationwide with respect to customer-information-systems software.
¶ 3. On April 27, 2004, plaintiff filed a complaint and a request for injunctive relief that sought enforcement of the parties' *764 noncompetition agreement. A hearing was held in June 2004, and on July 22, 2004, the superior court granted plaintiff an injunction. In its final judgment order dated August 6, 2004, the court enjoined defendant from working as a consultant or otherwise with Utility Solutions or any other direct competitor of plaintiff. Defendant appeals from that judgment. Pursuant to a provision of the parties' noncompetition agreement, the six-month noncompetition period will not begin until a final nonappealable judgment is rendered.
¶ 4. Like many other courts, this Court has adopted a position with respect to enforcement of noncompetition agreements similar to that set forth in § 188(1) of the Restatement (Second) of Contracts (1981), which provides that a restrictive covenant "is unreasonably in restraint of trade if (a) the restraint is greater than is needed to protect the promisee's legitimate interest, or (b) the promisee's need is outweighed by the hardship to the promisor and the likely injury to the public." Cf. Restatement (Third) of Employment Law § 6.05 (Preliminary Draft No. 2, May 17, 2004) ("A court will enforce a restrictive covenant in an employment agreement to the extent that enforcement is reasonably tailored to protect a legitimate interest of the employer."). We have stated that "we will proceed with caution" when asked to enforce covenants against competitive employment because such restraints run counter to public policy favoring the right of individuals to engage in the commercial activity of their choice. Roy's Orthopedic, Inc. v. Lavigne, 142 Vt. 347, 350, 454 A.2d 1242, 1244 (1982); accord Dicks v. Jensen, 172 Vt. 43, 51, 768 A.2d 1279, 1285 (2001). Nonetheless, we will enforce such agreements "unless the agreement is found to be contrary to public policy, unnecessary for protection of the employer, or unnecessarily restrictive of the rights of the employee, with due regard being given to the subject matter of the contract and the circumstances and conditions under which it is to be performed." Vt. Elec. Supply Co. v. Andrus, 132 Vt. 195, 198, 315 A.2d 456, 458 (1974); accord Fine Foods, Inc. v. Dahlin, 147 Vt. 599, 603, 523 A.2d 1228, 1230 (1986).
¶ 5. Here, in arguing that the trial court erred by enforcing the parties' agreement, defendant first asserts that the agreement does not safeguard a legitimate interest of the employer because it was not needed to protect trade secrets or confidential customer information. This argument fails because it is based on a faulty premise that noncompetition agreements may be enforced to protect only trade secrets or confidential customer information. Most jurisdictions do not limit the scope of noncompetition agreements to trade secrets or confidential customer information, which are often protected by other law even in the absence of such agreements. See 15 G. Giesel, Corbin on Contracts § 80.16, at 141-42 (rev. ed.2003) (explaining that employers may use noncompetition agreements to protect goodwill of business in addition to trade secrets and other confidential information, which most jurisdictions protect even in absence of covenant not to compete); see also 9 V.S.A. §§ 4601-4609 (Cum.Supp.2004). Indeed, the recent draft of the third restatement on employment law expressly states that noncompetition agreements may protect legitimate employer interests such as customer relationships and employee-specific goodwill that are "significantly broader" than proprietary information such as trade secrets and confidential customer information. Restatement (Third) of Employment Law § 6.05 cmt. b ("[Section] 6.05 sometimes allows an employer contractually to prevent all competition by a former employee, even competition that does not *765 make use of the employer's proprietary information.").
¶ 6. It is not necessary in this case to establish the range of employer interests, beyond trade secrets and confidential customer information, that may be protected through noncompetition agreements. Here, the trial court found that plaintiff had a legitimate protectable interest, and the evidence supports the court's finding. The trial court found that during his employment with plaintiff, defendant had acquired inside knowledge about the strengths and weaknesses of plaintiff's products knowledge that he could use to compete against plaintiff. As the court pointed out, both plaintiff and United Solutions, defendant's only client, served a small market of customers; thus, the loss of even a single contract could deprive plaintiff of revenue for many years, especially considering the need for service and software updates. Given these circumstances, we find no basis for overturning the trial court's conclusion that plaintiff had a legitimate protectable interest.
¶ 7. Defendant argues, however, that even assuming the parties' agreement protects a legitimate interest, the agreement is more restrictive than necessary to protect that interest. He contends that less drastic solutions were available to the trial court to fashion a more reasonable restraint on his employment. For example, he suggests that the court could have simply prohibited him from soliciting plaintiff's current customers, or, at a minimum, prohibited him from dealing with noncooperative utilities, given that plaintiff has not dealt with cooperatives for nearly twenty years. According to defendant, a complete ban on competition is not only unduly restrictive, but it effectively prevents him from working in his field of expertise for six months, thereby imposing a hardship that far outweighs any potential harm to plaintiff.
¶ 8. We do not find these arguments persuasive, particularly in the context of this case, which does not present any of the hallmarks of an unequal bargaining relationship between employer and employee. Defendant is a sophisticated consultant, who accepted employment with plaintiff after working for one of plaintiff's competitors. At the time he was hired, plaintiff informed defendant that a condition of his employment was that he sign a covenant not to compete. Defendant signed the agreement, which explicitly provided that prohibiting him from competing with plaintiff for a six-month period following the parties' separation would not prevent defendant from earning a living. Defendant now claims hardship based on nothing more than a bald statement that he will be unable to work for six months if the agreement is enforced. We find no error in the court's decision not to invalidate the contract based on this unsupported claim.
¶ 9. Nor do we find error based on the superior court's refusal to rewrite the agreement to make it more favorable to defendant. Although a restraint on competition is easier to justify "if the restraint is limited to the taking of his former employer's customers as contrasted with competition in general," Restatement (Second) of Contracts § 188 cmt. g, employers "may seek to protect the good will of the business with [either] a general covenant not to compete or with a specific prohibition on contact with customers," 15 Giesel, supra, § 80.16, at 141 (footnote omitted).
¶ 10. "Determining which restraints are reasonable has not been an exact science." Id. § 80.6, at 68. The reasonableness of the restrictions "will vary by industry and will depend highly on *766 the nature of the interest justifying the restrictive covenant." Restatement (Third) of Employment Law § 6.05 cmt. c. Generally, courts will uphold a contractual ban on an employee's post-employment competition if it would be difficult for an employer to determine when an employee is soliciting its customers. Id. §§ 6.05 cmt. c, 6.06 cmt. c ("Because it is essentially impossible to monitor an employee's `use' of goodwill, this interest will support a complete ban on competition as long as it is reasonably limited temporally and geographically.").
¶ 11. Here, the evidence demonstrates that plaintiff hired defendant to be a regional vice-president of sales and provided him access not only to existing customers but also to information concerning the strengths and weaknesses of plaintiff's products, the individual needs of the customers he served, and the prices paid by those customers for plaintiff's products and services. The superior court found that in the course of his employment with plaintiff, defendant acquired knowledge of plaintiff's software designs, customer base, marketing strategy, business practices, and other sensitive information revealing the strengths and weaknesses of plaintiff's software products. Because of the nature of plaintiff's business, which often involves customers initiating competitive bidding for contracts, it would be extremely difficult to monitor whether defendant was using the goodwill and knowledge he acquired while working for plaintiff to gain a competitive edge against plaintiff. Thus, the evidence supports the court's findings and conclusions, which, in turn, support its decision to enforce the agreement to the extent that defendant is prohibited for a six-month period from working for Utility Solutions or any other direct competitor of plaintiff.[*]
¶ 12. Defendant also claims that he has not competed with plaintiff or violated the covenant not to compete, but the evidence supports the court's findings to the contrary. The only customer of defendant's consulting firm was Utility Solutions, which directly competed against plaintiff for at least two different contracts. Further, shortly after defendant left plaintiff's employ, he represented Utility Solutions at a trade fair in a booth near plaintiff's booth and identified himself as Utility Solution's sales director. Moreover, the superior court found "not credible" defendant's claim that he was hired by Utility Solutions exclusively to market a new software product for two of the company's existing cooperative clients. Under these circumstances, the superior court's injunction was reasonable. Cf. Dyar Sales & Mach. Co. v. Bleiler, 106 Vt. 425, 433, 175 A. 27, 30 (1934) (granting relief based on violation of noncompetition agreement where employee had acquired close relations with employer's customers or knowledge of employer's business such that if he were to use those acquaintances or knowledge in competing business, irreparable harm would occur); Ex parte Caribe, U.S.A., Inc., 702 So.2d 1234, 1241 (Ala.1997) (concluding that evidence was sufficient to support enforcement of agreement precluding former employee from competing against employer in break bulk cargo service business, given customer information *767 and business knowledge employee acquired while working for employer).
¶ 13. We find unavailing defendant's reliance on Concord Orthopaedics Professional Ass'n v. Forbes, 142 N.H. 440, 702 A.2d 1273 (1997), for the proposition that the superior court was required to narrow the parties' agreement to restrict defendant from soliciting only plaintiff's current customers. In Forbes, a doctor left the employ of a physician's group and then sued his former employer, claiming that a covenant banning him from competing with the group within a twenty-five-mile radius of its business was unenforceable. Id. at 1274-75. The court upheld the agreement with respect to patients the doctor had treated while working for the group, but determined that the group lacked any legitimate interest in preventing the doctor from competing for new patients in the area. Id. at 1276. The instant case is distinguishable because, while working for plaintiff, defendant acquired specific information concerning plaintiff's customers, products, and services that could allow him to gain an advantage in competing against plaintiff for new clients. That was not the situation in Forbes.
¶ 14. Finally, we find no merit to defendant's argument that plaintiff should be equitably estopped from seeking enforcement of the noncompetition agreement. In support of this argument, defendant contends that he accepted employment with plaintiff and signed the agreement based on plaintiff's false representations that (1) its software products were suitable for cooperative electric and gas utilities; and (2) it would not seek to enforce the covenant not to compete unless defendant went to work for a major competitor of plaintiff. The trial court specifically found that defendant's testimony regarding these alleged representations was not credible. The court found that plaintiff did not mislead defendant about the capability of its products before he signed the noncompetition agreement and did not suggest to defendant that it would selectively enforce the agreement. Thus, the court properly rejected defendant's equitable estoppel claim.
Affirmed.
NOTES
[*] We note that a provision in the parties' noncompetition agreement stays enforcement of the agreement pending resolution of any litigation on its viability. Defendant does not argue that the delay in enforcing the agreement because of this provision has negated any legitimate protectable interest that the plaintiff might have had in enforcing the agreement. Absent such an argument, with reference to the record, we presume that a protectable interest still exists. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264214/ | 479 F.Supp. 990 (1979)
Doris HOLBROOK, Plaintiff,
v.
Henry C. PITT, Defendant and Third-Party Plaintiff,
v.
SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Third-Party Defendant.
No. 78-C-105.
United States District Court, E. D. Wisconsin.
October 31, 1979.
*991 Legal Action of Wis., Inc., by Lawrence G. Albrecht, James A. Gramling, Jr., Milwaukee, Wis., for plaintiff.
Herz, Levin, Teper, Chernof & Sumner, by Robert A. Teper, Milwaukee, Wis., for Pitt.
Joan F. Kessler, U. S. Atty., by William E. Callahan, Jr., Asst. U. S. Atty., Milwaukee, Wis., for U. S.
MYRON L. GORDON, District Judge.
DECISION and ORDER
This case raises certain questions regarding the administration of the housing assistance program established under section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f (as amended by § 201(a), Housing and Community Development Act of 1974). In count one of the amended complaint, the plaintiff Holbrook seeks compensatory relief against the defendant Pitt. In counts two and three, Ms. Holbrook and a class of similarly situated individuals seek monetary, declaratory and injunctive relief against the third party defendant, Secretary of the Department of Housing and Urban Development (HUD). The action is before me on the plaintiffs' and HUD's cross motions for summary judgment.
I. BACKGROUND
The section 8 program provides assistance for multi-family projects with HUD-held or HUD-insured mortgages, including projects sold by HUD subject to purchase money mortgages. The program provides direct cash assistance to eligible, low income tenants and also ensures the continuing viability of financially troubled HUD-held and HUD-insured projects. See S.Rep.No.94-749, 94th Cong., 2nd Sess., reprinted in [1976] U.S.Code Cong. & Admin.News, p. 1885 et seq.; [1974] U.S.Code Cong. & Admin.News, p. 4273 et seq.
HUD's regulations implementing the section 8 program, which are not challenged in this action, are codified at 24 C.F.R. § 886.101 *992 et seq. The regulations, together with HUD's program instruction handbook, establish a system pursuant to which HUD makes housing assistance payments to owners of eligible multi-family projects on behalf of eligible tenants. The heart of the assistance payment system is the contract entered into between HUD and the owner. The contract governs the relationship between the contracting parties and spells out the duties of the owner with respect to administration of the section 8 program.
The contract vests all administrative and management functions in the owner. The contract provisions which are pertinent to this law suit are the following:
"1.9 Leasing of Units
. . . . .
c. Eligibility, Selection, and Admission of Families
(1) The Owner shall be responsible for determination of eligibility of applicants, selection of families from among those determined to be eligible, and computation of the amount of housing assistance payments on behalf of each selected Family in accordance with schedules and criteria established by the Government.
. . . . .
1.11 Reduction of Number of Contract Units for Failure to lease to Eligible Families
a. After First Year of Contract. If at any time, beginning six months after the effective date of this Contract, the Owner fails for a continuous period of six months to have at least 80 percent of the Contract Units leased or available for leasing by Families, the Government may on 30 days notice reduce the number of Contract Units to not less than the number of units under lease or available for leasing by Families, plus 10 percent of such number if the number is 10 or more, rounded to the next highest number."
In practice, these provisions are applied in the following manner. Appearing on the face of the contract is the maximum housing assistance commitment undertaken by HUD, which amount is determined on the basis of the number of "contract units" in the project and their corresponding "contract rents." The maximum assistance amount is available for the payment of section 8 benefits beginning with the full month of the date the contract is executed, i. e., if the agreement is signed on April 15th, benefits are available for the payment of April's rent.
However, an owner will not receive assistance payments for the benefit of a specific family until he certifies to HUD such family's eligibility to participate in the section 8 program. The owner is not required to certify any set number of families living in contract units as eligible. His only incentives to make the certifications are that (1) he will not receive payments from HUD on behalf of a particular family until certification occurs, and (2) HUD may reduce the number of contract units, and thus its maximum assistance commitment, under the provisions of ¶ 1.11 regarding the leasing of contract units. Under this system, an owner may certify a family as eligible as of the date the contract was executed, or he may not certify eligibility until a later date without making the certification retroactive to the date of execution.
The instant controversy centers on this discretion of the owner regarding when to certify and whether to make his certification of eligibility retroactive to the execution date. The defendant Pitt and HUD executed a section 8 contract on June 10, 1976; however, Mr. Pitt did not certify the plaintiff Holbrook and other tenants living in the Main Street Gardens project as eligible until November 29, 1976. Benefits were then paid to Mr. Pitt on behalf of Ms. Holbrook and the other tenants commencing December 1976. When this action was commenced, Ms. Holbrook had not received section 8 benefits for the six months from June to December although she was eligible to receive them.
Ms. Holbrook filed a complaint against Mr. Pitt to recover these benefits on July *993 27, 1977, in the small claims division of the county court. Mr. Pitt filed a third party complaint against HUD, and HUD subsequently removed the action to this court. Ms. Holbrook then filed an amended complaint, adding two counts against HUD, the third party defendant. Substantial discovery transpired; Ms. Holbrook and HUD entered into a stipulation of uncontested facts. Many of the facts recited above, and those to be discussed in the course of this opinion, are derived from this stipulation.
II. COUNT I
In the first count of the amended complaint, Ms. Holbrook sued Mr. Pitt to recover as damages $660.18, representing the difference between the rent she paid from June through November, 1976, and the rent she would have paid had she been receiving section 8 benefits during the same period. The theory of recovery was that Ms. Holbrook was a third party beneficiary of the contract between Mr. Pitt and HUD, and that Mr. Pitt materially broke the contract by delaying certification until late November, 1976. Count I also seeks costs and attorney's fees.
By letter dated September 19, 1979, Mr. Pitt's attorney has informed me that Mr. Pitt certified the eligibility of Ms. Holbrook to receive retroactive benefits for the period in question, and that Mr. Pitt, upon payment by HUD, tendered to the plaintiff's attorney a check for the sum of $725, representing payment of such retroactive benefits. I believe these events moot the claim Ms. Holbrook has against Mr. Pitt to recover retroactive benefits. Since Mr. Pitt has not acted in bad faith, I conclude that he should not have attorney's fees assessed against him. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Therefore, count I of the amended complaint will be dismissed.
III. COUNT II
Count II, which seeks declaratory and monetary relief against HUD, is also based on the theory that eligible section 8 tenants are third party beneficiaries of contracts executed between HUD and owners of the projects in which such tenants reside. On November 6, 1978, I entered an order certifying this count as a class action defined to include
"[a]ll families in the State of Wisconsin who resided in dwelling units when Section 8 Set-A-Side Contracts were executed between HUD and the owner of their dwelling units and who were certified pursuant to the contracts for housing assistance payments but who did not receive the benefits of housing assistance payments as of the effective date of the contracts."
The plaintiffs argue that HUD's failure to provide section 8 benefits retroactive to the date of execution of the contracts constitutes a substantial violation of HUD's contractual duties. The plaintiff class seeks a declaratory judgment to that effect and class-wide recovery of the amount of retroactive benefits. The plaintiffs also seek attorney's fees.
In their briefs, the parties have argued the question whether the plaintiffs are in fact third party beneficiaries of the section 8 contracts executed between HUD and the project owners. On the view I take of this aspect of the case, however, I need not decide this issue, for, even assuming, without deciding, that the plaintiffs are third party beneficiaries, I hold that HUD has not violated any contractual duty it may owe to the plaintiffs.
It is well established that a third party beneficiary is bound by the terms and conditions of the contract it invokes. See Trans-Bay Engineers & Builders, Inc. v. Hills, 179 U.S.App.D.C. 184, 192, 551 F.2d 370, 378 (D.C. Cir. 1976); Rotermund v. United States Steel Corp., 474 F.2d 1139, 1142 (8th Cir. 1973). Under paragraph 1.9(c) of the section 8 contract, it is the owner who is given the responsibility to effect certifications of eligibility, and there is no contract provision requiring HUD to make assistance payments until the necessary certifications are performed. Indeed, the plaintiffs almost concede as much when, *994 in paragraph 13, they allege that "[n]o provision of applicable HUD regulations forecloses HUD from making housing assistance payments on behalf of certified families as of the effective date of each contract. ..." (emphasis added). But this is not to say that HUD is required, by the terms of the contract or otherwise, to pay retroactive benefits. See Wright v. Califano, 587 F.2d 345, 356 (7th Cir. 1978) ("An expectation of public benefits does not confer a contractual right to receive the hoped for benefits.").
Tacitly acknowledging that the contract does not expressly impose upon HUD the duty that it has allegedly violated, the plaintiffs urge me to imply a performance term into the contract, requiring the contracting parties to perform certification and begin providing benefits within a reasonable time. The plaintiffs argue that the effective date of the contract is such a reasonable time. Since paragraph 1.11, quoted above, sets the terms and conditions of performance, it would be inappropriate for me to re-write the contract with respect to a term the contracting parties have already agreed upon.
The plaintiffs are not entitled to recover their attorney's fees. Therefore, count II of the amended complaint will be dismissed.
IV. COUNT III
In count III of the amended complaint, the plaintiffs contend that the failure of HUD to require owners promptly to certify eligibility to receive benefits and to make such certification retroactive to the date of contract execution denies them due process of law in violation of the fifth amendment. The class of persons which Ms. Holbrook represents in her claims under count III was defined in my order of November 6, 1978, to include
"[a]ll families in the State of Wisconsin who resided or will reside in dwelling units when Section 8 Set-Aside Contracts were executed or will be executed between HUD and the owner of their dwelling units and who were certified or will be certified pursuant to the contracts for housing assistance payments but who did not or will not receive the benefits of housing assistance payments as of the effective date of the contracts."
The plaintiffs argue that they have a legitimate claim of entitlement to the receipt of section 8 benefits as of the date of contract execution, and that the provision of such benefits must commence no later than thirty days after the execution date. To enforce these rights, the plaintiffs ask, inter alia, that I order HUD (1) to include a provision in section 8 contracts requiring owners to certify eligible families within thirty days of contract execution; (2) to initiate housing assistance payments within the thirty day period, such payments to cover the period retroactive to the execution date; and (3) to provide a meaningful opportunity for eligible families to challenge unreasonable certification delays.
HUD, on the other hand, asserts that the plaintiffs do not possess a "legitimate claim of entitlement" to retroactive benefits. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). HUD argues that a property interest in section 8 benefits does not arise until the owner certifies a family as eligible to receive such benefits. Prior to certification, HUD contends that the plaintiffs have an "inchoate property interest," which is merely a "subjective expectancy" not entitled to any due process protection. I agree.
In Roth, the Supreme Court set forth the following guidelines for use in determining whether an individual has a constitutionally protected property interest in particular benefits:
"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state lawrules or understandings *995 that secure certain benefits and that support claims of entitlement to those benefits." 408 U.S. at 577, 92 S.Ct. at 2709.
In this case, the plaintiffs have failed to advance any independent "rules or understandings" supporting their claim of entitlement; indeed, after careful examination of the applicable statute and implementing regulations, as well as the section 8 contract, I believe that no such "independent source" exists.
The statute creating the section 8 assistance program has this to say with respect to participation in the program:
"Contracts to make assistance payments entered into by a public housing agency with an owner of existing housing units shall provide (with respect to any unit) that . . . the selection of tenants for such unit shall be the function of the owner, subject to the provisions of the annual contributions contract between the Secretary and the agency." 42 U.S.C. § 1437f(d)(1)(A).
HUD's regulations implementing this statutory mandate, 24 C.F.R. § 886.119, provide:
"(a) The Owner shall be responsible for management and maintenance of the project in conformance with requirements of the Regulatory Agreement. These responsibilities shall include but not be limited to:
. . . . .
"(3) Performance of all management functions including the taking of applications, selection of Families including verification of Income and other pertinent requirements, and determination of eligibility and amount of Family contribution in accordance with HUD-established schedules and criteria;
. . . . ."
Paragraph 1.9 of the section 8 contract, subparagraph (c), quoted above, in similar terms vests wide discretion in the project owner with respect to making eligibility certifications.
Nowhere in these statutory and regulatory provisions has Congress or HUD manifested an intention "to create a governmental obligation" to tenants who have not been certified as eligible to receive section 8 benefits. Geneva Towers Tenants Organization v. Federated Mortgage Investments, 504 F.2d 483, 494 (9th Cir. 1974) (Hufstedler, J., dissenting), cited with approval in Harlib v. Lynn, 511 F.2d 51, 55 n.11 (7th Cir. 1975). In the absence of such an intention, the plaintiffs' claim of entitlement is simply a unilateral expectation; as such, no matter how reasonable the expectation may be, it is not an enforceable claim of entitlement. Id.
The plaintiffs' reliance on Carey v. Quern, 588 F.2d 230 (7th Cir. 1978), is misplaced. In Carey, the plaintiffs were a class of unemployed welfare recipients who were also entitled to receive a clothing allowance on an "as needed" basis. However, because the plaintiffs were not informed of the clothing allowance, and the welfare officials had no standards for determining need, the court of appeals held that "the clothing allowance benefit was administered in a manner inconsistent with the requirements of due process." Id. at 232. In Carey, no question was presented as to the plaintiffs' entitlement to the clothing allowance; therefore, since due process clearly applied, the issue became what process was due. In the instant case, however, the plaintiffs have failed to establish an entitlement to governmental benefits; accordingly, I simply do not reach the issue of what process is due.
Contrary to the plaintiffs' contention, I do not believe that reliance on the project owner to perform eligibility certifications is arbitrary or capricious. The government has at least two strong interests in delegating this function to the project owners: first, HUD's administrative and financial burdens are lightened by being freed of this cumbersome task, and second, the owner is in a better position to determine whether a particular family qualifies under the pertinent eligibility criteria. Vesting the owner with discretion over certification is also consistent with the statute's goal of assisting financially troubled *996 projects. Moreover, it appears that the system presently incorporates incentives for the performance of eligibility certifications: the owner will not receive any benefits pursuant to the contract as to a given tenant until the latter's certification is performed, and the owner will suffer a reduction in the number of contract units if less than eighty percent of his contract units are not leased or available for leasing to eligible families one year after the contract is executed.
I am not unmindful of the appearance of arbitrariness caused by the fact that some owners perform retroactive certifications while others do not, and by the fact that some owners certify eligibility promptly after contract execution while others do not. However, I am also mindful that the Supreme Court has admonished lower courts against "engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress." Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 525, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). In the circumstances of this case, where the plaintiffs have not been endowed with an enforceable right to government benefits, and where the administrative scheme is rationally based on legitimate governmental objectives, I simply am not at liberty to impose my own notions as to how the section 8 program ought to be administered.
I wish to emphasize what this case does not involve. I am not confronted with a claim that Mr. Pitt, or any other project owner who has as tenants members of the plaintiff class, has refused to certify a family as eligible to receive section 8 benefits on racial or other inherently suspect grounds; such action by an owner would violate paragraph 2.1(a) of the section 8 contract and would also raise serious constitutional questions. Nor am I presented with the question whether procedural due process is triggered when an owner finds that a particular family does not satisfy the eligibility criteria for participation in the assistance program. The only two questions I must decide are whether due process compels the project owner to make retroactive certifications and whether he must certify at all within any particular time; I hold that due process requires neither.
CONCLUSION
Therefore, IT IS ORDERED that the plaintiffs' motion for summary judgment be and hereby is denied.
IT IS ALSO ORDERED that the third party defendant's motion for summary judgment be and hereby is granted.
IT IS FURTHER ORDERED that the amended complaint and this action be and hereby are dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264152/ | 886 A.2d 606 (2005)
389 Md. 531
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Randy A. WEISS.
Misc. Docket AG No. 15, September Term, 2004.
Court of Appeals of Maryland.
November 22, 2005.
*608 Glenn M. Grossman, Deputy Bar Counsel (Melvin Hirshman, Bar Counsel, Atty. Grievance Com'n of MD), for Petitioner.
Abbe David Lowell, Washington, DC, for Respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
CATHELL, Judge.
Bar Counsel, on behalf of the Attorney Grievance Commission, petitioner, pursuant to Maryland Rule 16-773(b),[1] filed a Petition for Disciplinary or Remedial Action against Randy A. Weiss, respondent, for violation of the Maryland Rules of Professional Conduct (MRPC).[2] The petition alleged that the respondent violated MRPC 8.4 sections (b), (c) and (d)[3] by converting funds due to his law firm in fifty-four separate transactions from 1993 to 1996, in the total amount of $676,465.99.
In accordance with Maryland Rule 16-752(a)[4] this Court assigned the matter to Judge Louise G. Scrivener of the Circuit Court for Montgomery County for an evidentiary hearing and to make findings of fact and conclusions of law. In accordance with Maryland Rule 16-757,[5] Judge Scrivener held a hearing and issued findings of *609 fact and conclusions of law. There is no dispute as to the facts of this case and neither party filed exceptions to Judge Scrivener's findings.
I. Facts
Respondent was admitted as a member of the Bar of this Court on May 1, 1982. He maintained an office in Washington, D.C. for the practice of law and presently works in the same firm in the position of a legal clerk. The Petition for Disciplinary or Remedial Action is based upon the District of Columbia Court of Appeals' finding that respondent violated the rules of professional conduct of that jurisdiction when he converted funds belonging to his law firm. That court suspended him from the practice of law in the District of Columbia.
Judge Scrivener's findings of fact and conclusions of law are as follows:
"At the hearing it was determined that the underlying facts leading to the suspension of Respondent, Randy A. Weiss, by the District of Columbia Court of Appeals are not in dispute. Also not in dispute are certain remedial actions taken by respondent both before and after the hearing before the District of Columbia Court of Appeals Board on Professional Responsibility, which made Findings of Fact relied upon by the District of Columbia Court of Appeals.
"FINDINGS OF FACT
"These findings of fact are based upon the undisputed Findings of Fact of the District of Columbia Board on Professional Responsibility, Respondent's Designation of Documents, and argument by counsel.
"1. Respondent was admitted to the District of Columbia Bar in December 1981. He also is a member of the Maryland, Virginia, Florida, and Colorado Bars. Respondent has not been subject to any prior disciplinary proceedings.
"2. At the time of the conduct at issue here, Respondent was a partner in the law firm [ ] (the `Firm'), where he specialized in real estate, refinancings, and real estate settlements. Respondent was also a licensed underwriting title attorney and serves as an agent for title insurance companies represented by the Firm.
"3. The misconduct found concerns the conversion of funds owed to the Firm as a result of Respondent's involvement as title insurance agent on real estate transactions. When Respondent served as counsel to a party in a transaction involving the sale of real property, his Firm was paid a fee for his work. The fee would be reflected on the settlement sheet summarizing the payments involved in the transaction. On some, but not all, real estate sale transactions on which he performed legal work, Respondent also served as the title insurance agent. On such transactions, Respondent was compensated by the title insurance company through the insurance premiums paid by the entity acquiring the insurance. These payments also were reflected on the settlement sheet. Under the agreements with the title insurance companies, Respondent retained 80% of the premium and 20% was passed on to the insurance company to cover the risk. Because the premiums were based on the selling price of the real estate, in large commercial transactions the amount was substantial. Respondent acknowledges that all of the legal fees and title insurance fees paid to Respondent were due and payable to the Firm.
"4. Starting in April, 1993, Respondent converted a portion of the title insurance fees in a number of transactions he handled to his own money market *610 account. The record is not clear as to precisely how Respondent diverted the funds, since he indicated that at times checks were made payable to him personally, while other evidence indicates that the funds were placed in a Firm escrow account over which Respondent had effective control. Respondent further testified that, on several occasions, he deposited the title insurance fees into his own professional corporation operating account. The checks from the Firm were signed by Respondent and/or one of Respondent's partners in the Firm. During the period from 1993 to 1996, Respondent paid to the Firm the legal fees that resulted from the real estate transactions but retained for himself the title insurance fees in approximately one third of the transactions. The Firm's account receivable system did not tie into the system that produced the settlement sheets and title insurance premiums are negotiable and, therefore, vary by transaction. So, for example, on a real estate sale transaction on which Respondent performed legal work and served as the title insurance agent, if Respondent turned over to the Firm the check for the legal fees, the Firm would not detect a shortfall if Respondent simply kept a portion of the check for the title insurance fee. The Respondent testified that there was never a time that he took the entire title insurance premium for himself. The Respondent always gave the firm some of the premium and, according to the Respondent's testimony, the firm was `not able to determine, because of the volume of work, whether or not [he was] gypping them on that, whether or not [he was] not turning over the correct amount.' [Brackets in original.]
"5. Respondent took funds due to the Firm a total of 54 times from April 1993 through September 1996. The amounts covered ranged significantly, from under $1,000 to $128,745.21. According to the report of an auditor the Firm retained to examine Respondent's activities, the total converted equaled $676,465.99. None of the funds involved client funds; they were all funds due to the Firm.
"6. Respondent placed the converted funds in a money market account and paid taxes on the funds. The money market account in which Respondent deposited these funds also contained funds from other sources. Respondent stated that he never spent the money he diverted, although, it is not clear from the record [that] the Respondent was aware of the full amount taken. The Respondent testified that he was unable to readily identify the total amount that had been diverted from the firm as the account into which the diverted funds were deposited also contained other funds and from at least one of those accounts, withdrawals were made for living or other purposes.
"7. The record shows that he did not use the funds to change his lifestyle. He remained in the same house, drove the same car, took the same vacations and otherwise continued to live as he had prior to taking the money. His wife continued to work at the job she had prior to Respondent's conversion of funds. He, however, was secretive about the funds, and did not disclose to his wife the existence of the money market account. There is no evidence that Respondent has a drug, alcohol, or gambling addiction.
"8. After the Jewish High Holidays in 1996, Respondent began to come to terms with his conduct and why it was wrong. Respondent was an adult Bar Mitzvah in 1996, and has involved himself increasingly as an adult in the religious *611 aspects of his Jewish heritage. After consultation with his Rabbi, in May 1997 he advised his Firm, through counsel, of his conversion of funds. The Firm was unaware of Respondent's misconduct. Respondent also suggested that the Firm advise D.C. Bar Counsel. Upon learning of his conduct, the Firm retained an accountant, paid for by Respondent, to audit the relevant books and an outside counsel to advise the Firm. On May 27, 1997, Respondent and the Firm advised Bar Counsel of Respondent's misconduct.
"9. When Respondent advised the Firm of his diversion of funds, he expressed his intention to return the money. He believed, based on his own limited review of his records, that he had taken between $300,000 and $450,000. He immediately returned $450,000 to the Firm in May 1997, pending the audit results. The audit revealed, however, that he had taken an additional $226,465.99, which Respondent promptly paid in August and October 1997. He also paid for the costs of the audit and the fees of the Firm's outside counsel. Respondent also did not retain the 17.2% to which he would have been entitled as his partner share if he had paid the money into the Firm initially.
"10. After advising the Firm of his conversion of funds, Respondent was instrumental in revising the Firm's financial practices to reduce the risks that similar conduct might occur again. Respondent insisted the Firm adopt a two-signature practice for checks and took the steps necessary to make that change when others in the Firm were slow to do so. Respondent no longer has check signing authority with the Firm.
"11. In January 1998, as the result of the events, Respondent ceased to be a partner in the Firm. He has remained associated with the Firm since the day he gave notice to his partners....
. . .
"13. According to the Report of Dr. Thomas C. Goldman, a psychiatrist retained by Respondent, Respondent's decision to confess voluntarily of his offenses is rooted in his discussion with his Rabbi and his `sense of himself as a religious man.' Respondent claims, supported by his Rabbi and both of the psychiatrists who examined him, that he has fully accepted responsibility for his misdeeds, is sincere in his desire to make amends, and has taken meaningful steps to avoid repeating his admittedly wrongful conduct. Beginning in 1997, Respondent undertook personal psychotherapy with Ralph Barocas, Ph.D. and has voluntarily placed himself under the professional supervision of [the Firm's managing partner].
"14. The reports of D.C. Bar Counsel's psychiatrist, Dr. Richard A. Ratner, and Respondent's psychiatrist are basically consistent. Both stated that Respondent suffers from no mental disease or illness. Both relate Respondent's conversion of funds to a psychological need for security borne of his father's depression-era fear of poverty. Because of psychological ties to his father, Respondent felt that it was his responsibility to help others in his family, including his parents, his older brother who suffers from schizophrenia, and his sister. Both psychiatrists describe Respondent as someone who could not say no and is overly solicitous towards friends. His willingness to help his family has been a cause of friction in his marriage as has his secrecy in financial matters, particularly with respect to the funds at issue here.
"15. D.C. Bar Counsel's psychiatrist, Dr. Ratner, summarized:
*612 `I find it impossible to avoid the conclusion that Mr. Weiss' misdeeds represent an extended period of acting out of his psychological conflicts. Mr. Weiss, though on the surface a stable member of the community and his profession, was clearly beset by conflicting emotions within himself and conflicting claims on his loyalties and his resources by his family.' [Indentation and numbering in original.]
"Both psychiatrists also state that Respondent has made significant changes in his life since he took the funds and both indicated that it was unlikely that he would repeat these misdeeds. Dr. Ratner stated in his report that Respondent has learned to say no and to place more confidence in others, which has made him more secure.
"15. [sic] After hearings on March 18 and May 6, 1999 before the Hearing Committee of the Board on Professional Responsibility (the `Hearing Committee'), the Committee determined that Respondent had violated the rules as charged. The D.C. Bar Counsel initially sought a suspension of six months based upon Respondent's voluntary disclosure, remorse, cooperation, restitution, and rehabilitation. Thereafter, the Committee issued its recommendation that Respondent be suspended for one year, with no fitness requirement, and then be placed on two years of probation with conditions. The full D.C. Board of Professional Responsibility (`the Board') considered the matter and recommended Respondent be suspended for three years with one year suspended in favor of probation for a period of two years or until his therapist advises the D.C. Bar Counsel that therapy is no longer necessary. The Board did not impose any additional conditions for reinstatement to the Bar. The District of Columbia Court of Appeals then considered the matter and adopted the recommendation of the Board and ordered that Randy A. Weiss, be suspended from the practice of law for a period of three years, with one year suspended in favor of probation for a period of two years or until his therapist concludes that therapy is no longer necessary, for illegally taking funds from his law firm. The suspension does not require a showing of fitness. Judge Ruiz dissented and noted the unusual facts of the Respondent's case.
. . .
"17. After his voluntary disclosure, Mr. Weiss sought counseling from psychotherapist, Dr. Ralph Barocas. In relation to the charges brought by D.C. Bar Counsel, Mr. Weiss sought an independent psychiatric evaluation by Dr. Thomas Goldman, who concluded that while Mr. Weiss `does not suffer from a major mental illness or from a substance abuse disorder, he does suffer from a significantly neurotic personality disorder which provides a basis for understanding both his offenses and his need for self-examination and personal growth.' Dr. Goldman opined that `at the time of his commission of the offenses with which he is charged, he was acting under a sense of compulsion without any understanding of his own unconscious appreciation of the enormous self-destructive risk he was undertaking.'
"18. The psychiatrist for D.C. Bar Counsel, Dr. Richard Ratner, reported that `though the illegal diversion of funds took place over a very substantial period of time, the entire episode would appear to be an aberration in the context of Mr. Weiss's life.'
"19. Mr. Weiss's actions would likely not have been discovered if he had not come forward to inform his Firm and D.C. Bar Counsel of his conduct.
*613 . . .
"22. Mr. Weiss has been cooperative with the Attorney Grievance Commission of Maryland and the Office of Bar Counsel....
. . .
"26. The United States Court of Appeals for the District of Columbia, the United States Court of Appeals for the Federal Circuit, the Virginia State Bar Disciplinary Board, the Supreme Court for the State of Colorado, and the United States District Court for the District of Maryland imposed a sanction reciprocal to the discipline imposed by the D.C. Court of Appeals.[[6]] ...
"FINDINGS OF LAW
"1. Respondent's conduct violated the following provisions of the Maryland Rules of Professional Conduct:
"(i) Rule 8.4(b), in that Respondent committed a criminal act (theft) that reflects adversely on his honesty, trustworthiness, or fitness of a lawyer in other respects; and
(ii) Rule 8.4(c), in that Respondent engaged in conduct involving dishonesty, fraud, deceit, and/or misrepresentation." [Alterations added.]
[Citations omitted.]
Because the facts of this case are undisputed, and the parties did not file exceptions, we are left to determine the proper sanction for respondent's violation of the MRPC.
After Judge Scrivener's findings of fact and conclusions of law, respondent and petitioner filed recommendations for sanctions pursuant to Rule 16-758(b).[7] Respondent asks us to impose a sanction reciprocal to the District of Columbia Court of Appeals' sanction. He argues that such a result is warranted because the District of Columbia Court of Appeals and this Court share identical goals in discipline, that the District of Columbia Court of Appeals carefully considered all the mitigating circumstances, and that, as a matter of public policy, attorneys should be encouraged to self-report wrongful conduct.
Petitioner, on the other hand, asks for disbarment. It is undisputed that, over a period of three years and in fifty-four separate transactions, respondent stole over $670,000 from his law firm violating Rules 8.4(b) and (c). Petitioner argues that, although we ordinarily give deference to the decisions of the court of original jurisdiction in reciprocal discipline cases, this Court's pronouncements concerning misappropriation and theft require substantially different discipline in this case. We agree.
II. Standard of Review
It is clear that "[t]his court has original and complete jurisdiction over attorney disciplinary proceedings." Attorney Grievance Comm'n v. Tayback, 378 Md. 578, 585, 837 A.2d 158, 162 (2003); Attorney Grievance Comm'n v. Blum, 373 Md. 275, 293, 818 A.2d 219, 230 (2003); Attorney Grievance Comm'n v. Harris, 371 Md. 510, 539, 810 A.2d 457, 474 (2002); Attorney Grievance Comm'n v. White, 354 Md. 346, 354, 731 A.2d 447, 452 (1999); *614 Attorney Grievance Comm'n v. Gavin, 350 Md. 176, 189, 711 A.2d 193, 200 (1998); Attorney Grievance Comm'n v. Adams, 349 Md. 86, 93, 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 470, 671 A.2d 463, 473 (1996); Attorney Grievance Comm'n v. Kent, 337 Md. 361, 371, 653 A.2d 909, 914 (1995); Attorney Grievance Comm'n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992). We conduct an independent review of the record and "determine whether the findings of the hearing judge are based on clear and convincing evidence." Tayback, 378 Md. at 585, 837 A.2d at 162; Attorney Grievance Comm'n v. Monfried, 368 Md. 373, 388, 794 A.2d 92, 100 (2002); Attorney Grievance Comm'n v. Alison, 349 Md. 623, 629, 709 A.2d 1212, 1214-15 (1998) (quoting Attorney Grievance Comm'n v. Kemp, 335 Md. 1, 9, 641 A.2d 510, 514 (1994)).
In reciprocal discipline cases, the findings of fact and conclusions of law in the original jurisdiction are conclusive evidence of an attorney's misconduct. Maryland Rule 16-773(g); see Attorney Grievance Comm'n v. Scroggs, 387 Md. 238, 249, 874 A.2d 985, 992 (2005); Attorney Grievance Comm'n v. Ayres-Fountain, 379 Md. 44, 56, 838 A.2d 1238, 1245 (2003); Attorney Grievance Comm'n v. Cafferty, 376 Md. 700, 703, 831 A.2d 1042, 1045-46 (2003). In our independent review of the record, we accept the hearing judge's findings of fact unless they are clearly erroneous. Tayback, 378 Md. at 585, 837 A.2d at 162; Attorney Grievance Comm'n v. Garfield, 369 Md. 85, 97, 797 A.2d 757, 763 (2002); Attorney Grievance Comm'n v. Wallace, 368 Md. 277, 288, 793 A.2d 535, 542 (2002); White, 354 Md. at 365, 731 A.2d at 458; Attorney Grievance Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997). Conclusions of law are reviewed "essentially de novo." Tayback, 378 Md. at 585, 837 A.2d at 162; Attorney Grievance Comm'n v. McLaughlin, 372 Md. 467, 493, 813 A.2d 1145, 1160 (2002); Attorney Grievance Comm'n v. Dunietz, 368 Md. 419, 428, 795 A.2d 706, 711 (2002). As a result, it is this Court who decides whether a lawyer has violated the MRPC. Tayback, 378 Md. at 585, 837 A.2d at 162; White, 354 Md. at 365, 731 A.2d at 458; Garland, 345 Md. at 392, 692 A.2d at 469; Attorney Grievance Comm'n v. Breschi, 340 Md. 590, 599, 667 A.2d 659, 663 (1995).
III. Discussion
Respondent admits that he has violated the provisions of MRPC 8.4 sections (b) and (c). The only issue in dispute is the extent of the sanction to be imposed. In answering this question we must balance our tendency to follow the original jurisdiction's sanction under our reciprocal discipline doctrine, against our prior cases and the sanctions imposed upon members of this Bar for similar misconduct committed in this jurisdiction, always with a view towards the protection of the public.
A. Reciprocal Sanctions
The Maryland Constitution has vested this Court with the power to "adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this state." Md. Const art. IV, § 18(a). Pursuant to that power this Court adopted Maryland Rule 16-773 governing reciprocal discipline. That rule provides in pertinent part:
"(e) Exceptional circumstances. Reciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and convincing evidence that:
. . .
(3) the imposition of corresponding discipline would result in grave injustice; [or]
*615 (4) the conduct established does not constitute misconduct in this State or it warrants substantially different discipline in this State"
In determining what constitutes grave injustice or if the conduct warrants substantially different discipline in this State we turn to our reciprocal discipline cases.
It is a well established principle in this State that this Court is "inclined, but not required, to impose the same sanction as that imposed by the state in which the misconduct occurred. We are required to assess for ourselves the propriety of the sanction imposed by the other jurisdiction and that recommended by the Commission." Scroggs, 387 Md. at 254, 874 A.2d at 995 (citations omitted); see also Attorney Grievance Comm'n v. Steinberg, 385 Md. 696, 704 n. 9, 870 A.2d 603, 608 n. 9 (2005) (stating that "`[w]e are prone, but not required, to impose the same sanction'") (citations omitted); Ayres-Fountain, 379 Md. at 57, 838 A.2d at 1246; Cafferty, 376 Md. at 727, 831 A.2d at 1058 (stating that "[w]e tend to, but are not required to, impose the same sanction") (citations omitted); Attorney Grievance Comm'n v. Roberson, 373 Md. 328, 355, 818 A.2d 1059, 1076 (2003); Attorney Grievance Comm'n v. McCoy, 369 Md. 226, 236, 798 A.2d 1132, 1137-38 (2002) (stating that "[t]his Court has often imposed sanctions, in reciprocal discipline cases, of facially equal severity to those imposed by a sister state. We have pointed out, however, that there is no requirement that this should be done") (citations omitted); Attorney Grievance Comm'n v. Ruffin, 369 Md. 238, 253, 798 A.2d 1139, 1148 (2002); Attorney Grievance Comm'n v. Dechowitz, 358 Md. 184, 192, 747 A.2d 657, 661 (2000); Attorney Grievance Comm'n v. Richardson, 350 Md. 354, 371, 712 A.2d 525, 533 (1998); Attorney Grievance Comm'n v. Sabghir, 350 Md. 67, 83, 710 A.2d 926, 934 (1998); Attorney Grievance Comm'n v. Gittens, 346 Md. 316, 325, 697 A.2d 83, 88 (1997); Attorney Grievance Comm'n v. Willcher, 340 Md. 217, 221-22, 665 A.2d 1059, 1061 (1995); Attorney Grievance Comm'n v. Saul, 337 Md. 258, 267, 653 A.2d 430, 434 (1995). The fact that we are "inclined," "prone," or "tend to" and "often" impose the same sanction is not determinative in this case. The explicit reluctance of the Court to adopt a blanket rule of reciprocity provides that we must look at each case individually and decide whether to deviate from the original jurisdiction's sanction, and in this case we do so.
In most reciprocal discipline cases, we have held that, ordinarily, when the purpose for the discipline in the original jurisdiction is congruent with ours, we follow the original jurisdiction's sanction. In Maryland "[t]he purpose of the sanction imposed on an attorney following disciplinary proceedings is to protect the public rather than to punish the attorney...." Steinberg, 385 Md. at 703, 870 A.2d at 607; Attorney Grievance Comm'n v. Sperling, 380 Md. 180, 191, 844 A.2d 397, 404 (2004); Ayres-Fountain, 379 Md. at 58, 838 A.2d at 1246; Cafferty, 376 Md. at 727, 831 A.2d at 1059; Roberson, 373 Md. at 356, 818 A.2d at 1076; Attorney Grievance Comm'n v. DiCicco, 369 Md. 662, 686, 802 A.2d 1014, 1027 (2002); McCoy, 369 Md. at 237, 798 A.2d at 1138; Ruffin, 369 Md. at 254, 798 A.2d at 1148; Dechowitz, 358 Md. at 192, 747 A.2d at 661; White, 354 Md. at 365, 731 A.2d at 458; Gittens, 346 Md. at 325, 697 A.2d 83, 88 (1997). We often find that most jurisdictions have the same purpose and yield to their determinations because they do not view the misconduct as of any lesser importance than we do. See Steinberg, 385 Md. at 704 n. 9, 870 A.2d at 608 n. 9; Ayres-Fountain, 379 Md. at 58, 838 A.2d at 1246; Cafferty, 376 Md. at 727, *616 831 A.2d at 1059. It is our duty, however, to ensure that this purpose is properly served. In upholding that duty
"`we have recognized that the public interest is served when this Court imposes a sanction which demonstrates to members of the legal profession the type of conduct that will not be tolerated.... Moreover, such a sanction represents the fulfillment by this Court of its responsibility "to insist upon the maintenance of the integrity of the bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute." ... Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules....'"
Sperling, 380 Md. at 191, 844 A.2d at 404 (quoting Attorney Grievance Comm'n v. Myers, 333 Md. 440, 447, 635 A.2d 1315, 1318 (1994)); see also White, 354 Md. at 365, 731 A.2d at 458. In Attorney Grievance Comm'n v. Parsons, 310 Md. 132, 142, 527 A.2d 325, 330 (1987) this Court stated:
"When the Court considers the appropriate sanction in a case of reciprocal discipline, we look not only to the sanction imposed by the other jurisdiction but to our own cases as well. The sanction will depend on the unique facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct."
This standard is in agreement with our duty to protect the public, gives appropriate deference to our sister jurisdictions and ensures that every member of the Maryland Bar is subject to the same sanctions for similar conduct. Although, "a view toward consistent dispositions for similar misconduct"[8] is an important part of this equation, a proper review of our own cases is just as important in order to ensure that all members of the Maryland Bar are subject to the same standards. It is conceivable that adopting a strict reciprocal discipline policy, in some instances, would result in grossly unfair results and might encourage some Maryland attorneys to turn themselves in to the disciplinary authorities of other jurisdictions where they are a member of the bar, to avoid the results of direct action by Maryland's processes.
In reciprocal discipline cases where we impose the original jurisdiction's sanction, we usually find that the same discipline would be given in Maryland. In Willcher, for example, an attorney was appointed to represent an indigent defendant. Willcher, 340 Md. at 220, 665 A.2d at 1060. The attorney demanded that the defendant pay $1,500.00 for the representation. Such conduct was prohibited in the District of Columbia and as a result he was disbarred. In that case, we agreed with the District of Columbia that such conduct constituted a fraud upon the indigent client and the judicial system and we disbarred the attorney stating that "[t]his Court has consistently stated that offenses infected with fraud, deceit, and dishonesty will result in disbarment in the absence of evidence of compelling reasons to the contrary." Id. at 222, 665 A.2d at 1061. In cases involving theft or misappropriation of client funds we have reciprocally disbarred attorneys after finding that such conduct results on disbarment in this State. Roberson, 373 Md. at 357, 818 A.2d at 1077; Cafferty, 376 Md. at 728, 831 A.2d at 1059. See also Attorney Grievance Comm'n v. Moore, 301 Md. 169, 171, 482 A.2d 497, 498 (1984) (holding that disbarment, the sanction *617 imposed in the District of Columbia, was the appropriate sanction for misappropriation of client funds for Maryland attorneys); Attorney Grievance Comm'n v. Bettis, 305 Md. 452, 455, 505 A.2d 492, 493 (1986) (holding that, in the absence of extenuating circumstances, disbarment is the appropriate sanction for misappropriation of funds where the District of Columbia had imposed the same sanction).
In some cases, on the other hand, we have yielded to the original jurisdiction when we might have imposed a different sanction had the proceedings originated in this jurisdiction. See Ayres-Fountain, 379 Md. at 59, 838 A.2d at 1247; Gittens, 346 Md. at 327, 697 A.2d at 88-89. In Ayres-Fountain, an attorney filed Certificates of Compliance with the Delaware Supreme Court. The Certificates falsely stated that the attorney had timely filed and paid all taxes. The attorney was suspended from the practice of law in Delaware. In applying the same sanction imposed by the Delaware court we held that
"where a respondent's most serious misconduct involves misrepresentations, and those misrepresentations are to the Supreme Court of the State in which he or she principally practices and that sanctioned him or her, it ordinarily is appropriate to defer to that court, notwithstanding that the sanction it imposed is not identical to the one that may have been imposed by this Court were the same conduct to have occurred in this State."
Ayres-Fountain, 379 Md. at 59, 838 A.2d at 1247. In another case, an attorney convicted for the theft of $88,837.92 from client's funds entrusted to him was suspended by the District of Columbia Court of Appeals. Gittens, 346 Md. at 322, 697 A.2d at 86.[9] We imposed the same sanction acknowledging that we may have decided differently as the original jurisdiction had the misconduct occurred in Maryland. Id. at 327, 697 A.2d at 89. In adopting the District of Columbia's sanction, we said:
"There is no basis for supposing that the District of Columbia treats these matters less seriously or wholly inconsistently with the manner exercised by this Court. On the contrary, deference should be paid to the District of Columbia Court of Appeals as demonstrated by the fact that it is loath to mitigate misconduct on the basis of drug or other substance addiction or abuse."
Id. at 327, 697 A.2d at 88. We did not provide any more guidance as to which factors were considered by the Court in making that determination. Since that time, however, we have become much less lenient towards any misconduct involving theft, misappropriation, fraud, or deceit.
It is appropriate to address some occasions where we have declined to follow the original jurisdiction's sanction. In Parsons, 310 Md. at 142, 527 A.2d at 330, an older 1987 case, two attorneys were suspended from practice in the District of Columbia for six months. We imposed a less severe sanction finding that, in Maryland, their conduct only warranted a 90-day suspension. Id. The attorneys in that case forged[10] a client's signature on a complaint for divorce, they then notarized the complaint and filed it with the court in the District of Columbia. The Court did not *618 follow the District of Columbia's sanction because a Maryland case on point and decided a year earlier, sanctioned such conduct with only a 90-day suspension.[11]
When the conduct is more serious, we sometimes have not followed the original jurisdiction and have imposed more severe sanctions. In a post Gittens case, Attorney Grievance Comm'n v. Dechowitz, 358 Md. 184, 747 A.2d 657 (2000) (per curiam), the Supreme Court of California suspended an attorney when he was convicted of possession of marijuana with intent to distribute. Id. at 191, 747 A.2d at 660. We found that such conduct is grounds for disbarment in this State and declined to follow California's sanction. Id. In another post Gittens case, an attorney, among other infractions, gave false testimony under oath. White, 354 Md. at 367, 731 A.2d at 459. The United States District Court for the District of Maryland suspended Ms. White indefinitely and Bar Counsel filed a petition for reciprocal discipline. Id. at 351, 731 A.2d at 450. We found that giving false testimony is so serious in nature that it often warrants disbarment. Id. at 367, 731 A.2d at 459. We declined to impose an indefinite suspension, as imposed by the original jurisdiction, and found that disbarment was the appropriate sanction due to the serious nature of the offense. Id. As these cases illustrate, although we usually do not deviate from the original jurisdiction's sanction, we will do so when the conduct involved is of such nature that it would not be tolerated from any member of the Bar in this State if the conduct occurred here. As a result we now turn to the nature of the respondent's misconduct and why it leads to disbarment.
B. Misconduct and Sanction
Theft and the misappropriation of funds is one of the most egregious breaches of an attorney's duty as a member of this Bar. To illustrate the graveness of this type of conduct we have stated:
"[I]t is essential that all members of the legal fraternity be strongly and constantly impressed with the truism that in handling moneys and properties belonging to their clients or others that they accept them in trust and are strictly accountable for their conduct in administering that trust, so they dare not appropriate those funds and properties for their personal use. The misappropriation by an attorney of funds of others entrusted to his care, be the amount small or large, is of great concern and represents the gravest form of professional misconduct."
Bar Ass'n v. Marshall, 269 Md. 510, 519, 307 A.2d 677, 682 (1973). In Attorney Grievance Comm'n v. White, 328 Md. 412, 417, 614 A.2d 955, 958 (1992) we stated that "misappropriation of funds by an attorney `is an act infected with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.'" (quoting Attorney Grievance Comm'n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087, 1091 (1991)). And in Vanderlinde we held:
"in cases of intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like, we will not accept, as `compelling extenuating circumstances,' anything less than the most serious and utterly debilitating mental or physical health conditions, *619 arising from any source that is the `root cause' of the misconduct [and] that also result in an attorney's utter inability to conform his or her conduct in accordance with the law and with the MRPC. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law, or otherwise."
Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 413-14, 773 A.2d 463, 485 (2001) (alteration added) (emphasis added).
Since Vanderlinde we have continued to impress upon the Maryland Bar the importance of honesty, in particular, the handling of other people's money or property. In Vlahos, over a period of one year an attorney took payments from the firm's clients and kept them for himself. Vlahos, 369 Md. at 186, 798 A.2d at 556. We held that disbarment is the proper sanction when an attorney engages in the misappropriation of funds, regardless of the source of the money. Id.; see also Attorney Grievance Comm'n v. Spery, 371 Md. 560, 810 A.2d 487 (2002) (attorney was disbarred for conversion of money from his partners); Attorney Grievance Comm'n v. Post, 379 Md. 60, 839 A.2d 718 (2003) (attorney was disbarred for two instances of misappropriation of funds); Attorney Grievance Comm'n v. Goodman, 381 Md. 480, 850 A.2d 1157 (2004) (attorney was disbarred after intentionally impersonating another attorney).
Respondent's case is similar to Vanderlinde. Ms. Vanderlinde's conduct took place over a period of six months, respondent's lasted three years. Ms. Vanderlinde stole $3,880.67. The respondent stole $670,465.99. Both Ms. Vanderlinde and respondent made full restitution of the funds. While Ms. Vanderlinde returned the money before being caught, respondent self-reported to his firm and the commission and he then returned the funds. They both returned the money because they realized their conduct was wrong. In this case respondent's divine afflatus was the cause of his coming to terms with his conduct and why it was wrong.
Respondent's case is also similar to Attorney Grievance Comm'n v. Ezrin, 312 Md. 603, 541 A.2d 966 (1988). In Ezrin, the attorney stole $200,000.00 from his partners over a period of three years. Id. at 604, 541 A.2d at 966. The attorney returned the money after his partners discovered the fraud. Id. As a result of the thefts in their respective cases, Ms. Vanderlinde and Mr. Ezrin were disbarred. Id. at 609, 541 A.2d at 969; Vanderlinde, 364 Md. at 419, 773 A.2d at 488.
Respondent asks us to take into consideration a number of mitigating circumstances in deciding which sanction shall be imposed. In that respect, we have clearly stated that, in theft or misappropriation cases, we will consider imposing a less severe sanction than disbarment only when "compelling extenuating circumstances" are the "root cause" of the misconduct. Vanderlinde, 364 Md. at 414, 773 A.2d at 486. Respondent's sole evidence of the cause of his misconduct is his alleged emotional and mental problem evidenced by the psychiatrists' testimony. These experts agree that respondent does not suffer from any specific mental disease or illness. Their only explanation for his conduct is that he had a "psychological need for security borne out of his father's depression-era fear of poverty." Respondent was a very successful lawyer able to generate large amounts of revenue for his firm and for himself. He was able to misappropriate over half a million dollars from title *620 insurance proceeds alone, which most likely amounted to a very small part of the firm's revenue from the real estate transactions he handled. Respondent does not claim that he was having family problems at the time or any specific hardships. In Vanderlinde, the attorney had a history of depression, her second marriage was falling apart, her daughter was suffering from psychological problems, she had lost her job and was unsuccessful as a real estate agent, and she began taking the money because she needed to pay her bills. We found that all those circumstances were not sufficient to meet the required "compelling extenuating circumstances" standard and Ms. Vanderlinde was disbarred. It is clear that respondent has not met his burden with respect to prior mitigating circumstances and should be disbarred.
Respondent offers a number of additional mitigating circumstances, all of which took place after his misconduct. In light of Vanderlinde's requirement that only "compelling extenuating circumstances" being the "root cause" of the misconduct will be considered in applying a lesser sanction in cases involving theft, we do not address respondent's subsequent conduct.
IV. Conclusion
Maryland Rule 16-773 requires the application of reciprocal discipline unless there is clear and convincing evidence that such application will result in grave injustice or that the conduct warrants a different sanction in this State. There is no doubt that this Court will not tolerate theft by a member of the bar from clients, partners, or third-parties. It would be grave injustice in allowing a member of this Bar to commit such an offense and be given a lesser sanction because another jurisdiction did so, while other members of the Maryland Bar would be sanctioned more severely. The current state of the law in this State warrants substantially different discipline than that imposed by the District of Columbia for offenses of the nature extant in the instant case.
Disbarment is the appropriate sanction.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(C), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST RANDY A. WEISS.
Dissenting Opinion by BELL, C.J., which RAKER, J. joins.
BELL, Chief Judge, dissenting joined by RAKER, J.
This case is a reciprocal discipline case. Attorney Grievance Comm'n v. Ayres-Fountain, 379 Md. 44, 56-59, 838 A.2d 1238, 1245-47 (2003); Attorney Grievance Comm'n v. Richardson, 350 Md. 354, 365-66, 712 A.2d 525, 530-31 (1998); Attorney Grievance Comm'n v. Sabghir, 350 Md. 67, 78-79, 710 A.2d 926, 931-32 (1998); Attorney Grievance Comm'n v. Gittens, 346 Md. 316, 324, 697 A.2d 83, 87 (1997); Attorney Grievance Comm'n v. Willcher, 340 Md. 217, 221-22, 665 A.2d 1059, 1061 (1995); Attorney Grievance Comm'n v. Saul, 337 Md. 258, 267-68, 653 A.2d 430, 434 (1995); Attorney Grievance Comm'n v. Hopp, 330 Md. 177, 185-86, 623 A.2d 193, 197 (1993); Attorney Grievance Comm'n v. Sparrow, 314 Md. 421, 425-26, 550 A.2d 1150, 1152 (1988); Attorney Grievance Comm'n v. Parsons, 310 Md. 132, 142-43, 527 A.2d 325, 330 (1987); Attorney Grievance Comm'n v. Haupt, 306 Md. 612, 614-15, 510 A.2d 590, 591-92 (1986); Attorney Grievance Comm'n v. Bettis, 305 Md. 452, 455, 505 A.2d 492, 493 (1986); Attorney Grievance Comm'n v. Moore, 301 Md. 169, *621 171, 482 A.2d 497, 498 (1984); Attorney Grievance Comm'n v. Rosen, 301 Md. 37, 39, 481 A.2d 799, 800 (1984). Such cases arise when "[a]n attorney who in another jurisdiction (1) is disbarred, suspended, or otherwise disciplined, (2) resigns from the bar while disciplinary or remedial action is threatened or pending in that jurisdiction, or (3) is placed on inactive status based on incapacity," Maryland Rule 16-773(a), and bar counsel has filed a Petition for Disciplinary or Remedial Action in the Court of Appeals, pursuant to Rule 16-751(a)(2). Maryland Rule 16-773(b). Reciprocal discipline cases have two, significantly interrelated aspects: an evidentiary aspect and a sanction-imposition aspect.
In reciprocal cases, "[a] final adjudication in a disciplinary proceeding by a judicial tribunal ... that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule." See Maryland Rule 16-773(g)[1]. With the evidentiary foundation in place, the issue of the appropriateness of the sanction imposed must be addressed. As to that, this Court's jurisprudence and Maryland Rule 16-773 are instructive. Subsection (c), which requires the Court to issue a show cause order upon the filing of the petition, is a mechanism within the Rule that permits either of the parties to the proceedings to show "why corresponding discipline or inactive status should not be imposed." Maryland Rule 16-773(c). Moreover, the Rule prescribes the exceptional circumstances, which, if shown, will allow the party making the showing to avoid the reciprocal discipline. Maryland Rule 16-773(e) provides:
"(e) Exceptional Circumstances. Reciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and convincing evidence that:
"(1) the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;
"(2) there was such infirmity of proof establishing the misconduct as to give rise to a clear conviction that the Court, consistent with its duty, cannot accept as final the determination of misconduct;
"(3) the imposition of corresponding discipline would result in grave injustice;
"(4) the conduct established does not constitute misconduct in this State or it warrants substantially different discipline in this State; or
"(5) the reason for inactive status no longer exists."
This Court's treatment of the second aspect of our reciprocal discipline process, the imposition of sanction, has been, to now, both consistent and well settled. It is:
*622 "We are prone, see Attorney Grievance Comm'n v. Sabghir, 350 Md. 67, 83, 710 A.2d 926, 934 (1998); Attorney Grievance Comm'n v. Richardson, 350 Md. 354, 365-66, 712 A.2d 525, 530-31 (1998), but not required, see Attorney Grievance Comm'n v. Gittens, 346 Md. 316, 324, 697 A.2d 83, 87 (1997), to impose the same sanction as that imposed by the state in which the misconduct occurred. Indeed, the Court is duty-bound to assess for itself the propriety of the sanction imposed by the other jurisdiction and that recommended by the Commission, Gittens, 346 Md. at 326, 697 A.2d at 88, to look not only to the sanction imposed by the other jurisdiction, but to the particular facts and circumstances of each case, the outcome being dependent upon the latter, but with a view toward consistent dispositions for similar misconduct. Attorney Grievance Comm'n v. Willcher, 340 Md. 217, 222, 665 A.2d 1059, 1061 (1995) (quoting Attorney Grievance Comm'n v. Parsons, 310 Md. 132, 142, 527 A.2d 325, 330 (1987)); Attorney Grievance Comm'n v. Saul, 337 Md. 258, 267-68, 653 A.2d 430, 434-35 (1995). We ordinarily will defer to the sanctioning State when the two States' purpose in disciplining counsel is the same."
Ayres-Fountain, 379 Md. at 57, 838 A.2d at 1246 (quoting Gittens, 346 Md. at 327, 697 A.2d at 88); Attorney Grievance Comm'n v. Ruffin, 369 Md. 238, 253-254, 798 A.2d 1139, 1148 (2002). See also Roberson, 373 Md. at 355-56, 818 A.2d at 1076.
Our cases also make clear that, for sanctioning purposes, important considerations for this Court have been the location of the attorney's practice, where the misconduct actually occurred, two factors recognized as quite pertinent by other courts, see In re Schlem, 308 A.D.2d 220, 222, 763 N.Y.S.2d 558, 559 (N.Y.A.D.2003) ("As to the appropriate sanction, it is generally accepted that the state where respondent lived and practiced law at the time of the offense has the greatest interest in the sanction imposed ... and deference is particularly appropriate where the misconduct occurred in that state"); Copren v. State Bar, 64 Nev. 364, 383, 183 P.2d 833, 842 (1947) ("in the spirit and under the law of comity, we should recognize the California judgment of suspension in the instant case, as to the acts of misconduct of petitioner which occurred in California"), and the seriousness with which the other jurisdiction treats the misconduct.
In accepting the sanction imposed by the Supreme Court of Delaware in Ayres-Fountain, though noting that it likely was not identical to one that this Court may have imposed had the matter been initiated in Maryland, we said:
"the respondent essentially is a Delaware lawyer; that is where she lives and where she principally practices. More important, the misrepresentations upon which the petitioner principally relies are misrepresentations made to the Supreme Court of Delaware, in certifications contained in annual filings that Court requires to be made in support of its oversight of the administration of justice in that State. That Court was fully informed of the facts and circumstances of the respondent's conduct. In addition to the stipulation, which is quite detailed and explicit, not only as to the violations but with respect to the respondent's admissions, the court reviewed the Report and Recommendation of Sanction of the Board of Professional Responsibility. That Report, which accepted the facts recited in the stipulation, was prepared only after the Board conducted a hearing to determine the appropriate sanction to recommend. The Board, in addition to discussing the considerations that were taken into account *623 in fashioning the sanction recommendation, painstakingly analyzed the cases bearing on the proper sanction and that formed the basis for the recommendation it made.
"Having been presented with the Report and the recommendation for a three year suspension, the Supreme Court of Delaware adopted the Report and accepted the recommendation, but only after it had "considered the matter carefully." That it had a firm grasp of the facts and the gravity of the situation is shown by the court's recitation of the admissions the respondent made, noting particularly that "she falsely represented to the Delaware Supreme Court, in her Certificates of Compliance filed between 1996 and 2000, that she had timely paid all federal, state, and local payroll, gross receipts and income taxes [and] concealed her failure to pay various federal, state and local taxes from the ODC and its auditor." In addition, the court referred to the aggravating factors to which the parties stipulated, indicating that the sanction was appropriate "in light of the[ir] presence.""
379 Md. at 58-59, 838 A.2d at 1246-47. See Gittens, 346 Md. at 324, 697 A.2d at 88 (noting that the misconduct for which the respondent was being sanctioned occurred solely in the District of Columbia). Thus when the attorney primarily practices in another jurisdiction and there commits his misconduct, deference to the reciprocal discipline sanction is usual, Attorney Grievance Comm'n v. Scroggs, 387 Md. 238, 874 A.2d 985 (2005); Attorney Grievance Comm'n v. Steinberg, 385 Md. 696, 870 A.2d 603 (2005); Attorney Grievance Comm'n v. Ayres-Fountain, 379 Md. 44, 838 A.2d 1238 (2003); Attorney Grievance Comm'n v. Roberson, 373 Md. 328, 818 A.2d 1059 (2003); Attorney Grievance Comm'n v. Ruffin, 369 Md. 238, 798 A.2d 1139 (2002); Attorney Grievance Comm'n v. Gittens, 346 Md. 316, 697 A.2d 83 (1997), and the divergence from it, rare. See Attorney Grievance Comm'n v. Dechowitz, 358 Md. 184, 747 A.2d 657 (2000).[2]
That is as it should be. In In re Zdravkovich, 831 A.2d 964, 968-969 (D.C. 2003), the Court of Appeals for the District of Columbia interpreted Rule XI, § 11(c), its equivalent to Maryland Rule 16-773(e), characterizing and rationalizing its reciprocal discipline standard as follows:
"We have adopted a rigid standard for reciprocal bar discipline cases. As already indicated, we presumptively impose identical reciprocal discipline, unless the attorney demonstrates by clear and convincing evidence that the case falls within one of five specified exceptions articulated in Rule XI, §§ 11(c). In re Gardner, 650 A.2d 693, 695 (D.C. 1994); In re Zilberberg, 612 A.2d 832, 834-35 (D.C.1992). While the plain language of Rule XI, §§ 11(c) places the burden on the disciplined attorney to establish by clear and convincing evidence that a lesser sanction is warranted, *624 the Office of Bar Counsel also has standing to object to the imposition of identical discipline, see, e.g., In re Reid, 540 A.2d 754, 758 (D.C.1988), and may recommend a different sanction when it believes an exception applies. See, e.g., In re Berger, 737 A.2d 1033, 1040 (D.C. 1999). Such instances, however, should be rare. Underlying our strict standard in reciprocal bar discipline cases is not only the notion that another jurisdiction has already afforded the attorney a full disciplinary proceeding, but also the idea that there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority."
To like effect, see Mississippi Bar v. Drungole, 913 So.2d 963, 2005 WL 977004 (Miss.2005); Copren v. State Bar, 64 Nev. 364, 385-389, 183 P.2d 833, 843-844 (1947).
In Mississippi, reciprocal discipline is governed by Mississippi Bar Discipline Rule 13, which provides:
"When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction."
Applying that Rule, the Supreme Court of Mississippi defers both to the factual determinations made and to the sanction imposed by another jurisdiction. In Drungole, it explained:
"In assessing sanctions for reciprocal attorney discipline cases, we give deference to the sanction imposed by the foreign jurisdiction. After all, this Court takes the findings of the foreign jurisdiction as conclusive evidence of professional misconduct.... In accepting the findings of the foreign jurisdiction, our focus on the due process protections afforded the attorney must never waiver. See generally Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377, 61 L.Ed. 585 (1917). An attorney who is the subject of a disciplinary complaint is entitled to fundamental due process protections throughout the course of the proceedings. In re Rokahr, 681 N.W.2d 100, 108 (S.D.2004). Thus, it seems only appropriate that we afford deference to the sanctions imposed by the foreign jurisdiction. If the attorney was afforded full or partial substantive and/or procedural due process in the foreign jurisdiction, then the foreign jurisdiction would have had the best opportunity to consider the testimony of the witnesses, examine the lawyer's mental state, determine the existence of aggravating and/or mitigating factors, and assess the credibility of the witnesses."
913 So.2d at 968, 2005 WL 977004 at *4 (Miss.2005). Acknowledging that Rule 13, by its terms, does not bar the court from imposing any sanction it deems appropriate, the court was clear that "Rule 13 is not an invitation to disregard logic, reason or common sense." Id. at 970, 2005 WL 977004 at *6. Just as it is necessary to take "the cold record of the foreign jurisdiction as conclusive" in reciprocal attorney discipline cases, deference must also be afforded *625 to the foreign jurisdiction's findings. "[O]nly under extraordinary circumstances should there be significant variance from a sanction imposed by the foreign jurisdiction." Id.
The respondent, although also admitted to practice in Maryland, Virginia, Florida and Colorado, practiced law primarily in the District of Columbia, where the firm in which he was a partner maintained an office. He was charged with violating, and was found by the judge to whom this case was assigned to have violated, Rule 8.4(b) and (c) of the Maryland Rules of Professional Conduct, i.e. to have "committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness of a lawyer" and to have "engaged in conduct involving dishonesty, fraud, deceit and/or misrepresentation." The basis for these findings was the respondent's misappropriation, over a period of time, of more than $600,000 from the law firm in which he was a partner. After extensive proceedings, during which the respondent cooperated with Bar Counsel and underwent extensive counseling and analysis, the reports of which were provided to, and extensively reviewed and considered by the District of Columbia Board on Professional Responsibility (the Board), the Board recommended to the District of Columbia Court of Appeals that the respondent be suspended from the practice of law for three years, with one year suspended, in favor of two years probation or until the respondent's therapist advises Bar Counsel that therapy is no longer required. The Court of Appeals accepted that recommendation, after a hearing and consideration of the record made before the Board. Subsequently, the respondent received reciprocal discipline from the Supreme Courts of Florida and Colorado, the Virginia State Bar Disciplinary Board, the United States District Court for the District of Maryland, the United States Court of Appeals for the District of Columbia Circuit and the United States Court of Appeals for the Federal Circuit.
Although it has no problem with deferring to the finding of the District of Columbia Court of Appeals with respect to the misconduct to which the sanction at issue applies, and is, perhaps, even happy to do so, the majority is loath to give that court's sanction determination any consideration whatsoever. Like the Mississippi Supreme Court, I believe that the two are, and should be, inextricably related. What that court said on the subject is worth repeating:
"[I]t seems only appropriate that we afford deference to the sanctions imposed by the foreign jurisdiction. If the attorney was afforded full or partial substantive and/or procedural due process in the foreign jurisdiction, then the foreign jurisdiction would have had the best opportunity to consider the testimony of the witnesses, examine the lawyer's mental state, determine the existence of aggravating and/or mitigating factors, and assess the credibility of the witnesses."
Drungole, 913 So.2d at 968, 2005 WL 977004 at *4. It also is worth repeating that six other courts, presented with the same record, have deferred to the District of Columbia Court of Appeals as to the sanction.
The majority does not dispute that the District of Columbia Court of Appeals approaches attorney discipline from the same perspective as this Court, with an eye to the protection of the public and not to punish the erring attorney. 389 Md. 531, 547, 886 A.2d 606, 615 (2005). The majority concedes that deference is the norm, "we are prone" to do so, id.; nevertheless, on this record, its rationale for refusing deference in this case can only be that the *626 Court of Appeals of the District of Columbia did not exact the pound of flesh that we would have done had the matter initiated in this Court, i.e., it did not punish the respondent to the extent we think required. That is not the test.
Our Rule 16-773 contemplates, indeed, requires, that reciprocal discipline be avoided only when there are "exceptional" circumstances shown by either Bar Counsel or the respondent. The majority appears to agree, suggesting that there are such exceptional circumstances: imposing reciprocal discipline "would result in grave injustice," subsection (e)(3), and the respondent's misconduct "warrants different discipline in this State." Maryland Rule 16-773(e)(4). Rather than explain these conclusions it is simply inconceivable to me how deference to a home state's imposition of a sanction in a reciprocal discipline case can result in a grave injustice and the majority does not even attempt to clarify the point[3] the majority simply reviews our reciprocal discipline cases, emphasizing our oft-repeated admonition that we are not absolutely bound to impose identical discipline and noting that, in many of the cases in which we imposed reciprocal discipline, we were satisfied that the same sanction would have been imposed in this State, in any event. The majority also was able to find an exception, Attorney Grievance Comm'n v. Dechowitz, 358 Md. 184, 747 A.2d 657 (2000), in which the Court declined to impose reciprocal discipline; two, if you count Attorney Grievance Comm'n v. Parsons, 310 Md. *627 132, 527 A.2d 325 (1987), in which we reduced, rather than increased, the length of the sanction ordered by the other jurisdiction. That the result in the other jurisdiction is not the same as that which would have been reached here does not suffice to make the situation exceptional or demonstrate that substantially different discipline is warranted in this State. If that is all that is required to demonstrate exceptional circumstances, then there is no reason for reciprocal discipline; it really is meaningless.
The majority appears to rely on Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001) to justify its refusal to defer to the District of Columbia sanction decision. That reliance is misplaced. Vanderlinde did not change this Court's view of lawyer misappropriation. Long before that case was decided, we were clear, and stated often in our cases, time and again, that misappropriation of client funds alone will result in disbarment in the absence of compelling extenuating circumstances. See, e.g., Attorney Grievance Comm'n of Maryland v. Bernstein, 363 Md. 208, 229, 768 A.2d 607, 618 (2001); Attorney Grievance Comm'n v. Milliken, 348 Md. 486, 519, 704 A.2d 1225, 1241 (1998); Attorney Grievance Comm'n v. Williams, 335 Md. 458, 474, 644 A.2d 490, 497 (1994); Attorney Grievance Comm'n v. Casalino, 335 Md. 446, 452, 644 A.2d 43, 46 (1994); Attorney Grievance Comm'n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087, 1091 (1991); Attorney Grievance Comm'n v. Short, 303 Md. 317, 321, 493 A.2d 362, 364 (1985); Attorney Grievance Comm'n v. Garson, 287 Md. 502, 503, 413 A.2d 564, 564 (1980). Vanderlinde addressed, rather, what would suffice as mitigation to reduce the sanction in a misappropriation case. The majority's position is apparently that unless a misappropriation case, regardless of where originated, meets the Vanderlinde test for mitigating circumstances, reciprocation of a sanction less than disbarment is precluded, either because under Rule 16-773(e)(3) a "grave injustice" would result in that an attorney in a reciprocal case would receive a lesser sanction than would an attorney, under the exact same facts, in a case originating in Maryland, or because, as a result of that decision, only disbarment may be imposed as a sanction.
This Court has continually admonished, repeated in virtually every reciprocal discipline case, that we seek "consistent dispositions for similar conduct." If, as the majority's reliance on Vanderlinde seems to suggest, seeking consistent dispositions has greater relevance to the sanction decisions within this State[4] than does the rule of reciprocity, then one must wonder what the reason for Rule 16-773(e) is, and what the importance is of the requirement that there be a demonstration of consistency as to sanction. The answer is, of course, that the Rule contemplates a sanction decision from the receiving jurisdiction and, as important, contemplates that there will be deference paid to it, just as there is expected that deference will be paid and there is to the findings of that jurisdiction as to the charged misconduct. If the sanction determination is a de novo exercise or the sanction of the receiving state may be disregarded, with impunity, then there simply is little, if any, value to a reciprocal sanctions scheme and, I submit, to a reciprocal discipline regime. If reciprocal *628 discipline is to have any meaning in misappropriation cases, Vanderlinde can not be construed as the majority does. If it is so construed, I question, as I have said, the value of the reciprocal discipline rule. I wonder as well why, if the receiving State's judgment is not to be trusted on the sanction, we should accept the misconduct determination.
As indicated, the majority reviewed several of our reciprocal discipline cases in support of its analysis, some in which we imposed the same sanction as the other jurisdiction and some in which we did not. To be sure, there are cases in which we stated that the sanction from the other jurisdiction was what would have been imposed in this State had the disciplinary action initiated here and others where we made a point of stating that we were imposing reciprocal discipline, deferring to the sanction decision of the other jurisdiction. I fail to see why all of those cases are not cases in which we deferred to the other jurisdiction; consistency with the result that would obtain in any event is a reason to defer. The cases the majority cites to show that we have deviated from the reciprocal sanction do not require that we deviate in this case. In fact, they prove the point that I espouse: that this Court rarely deviates and then for exceptional reasons only.
Only one of the cases, Dechowitz, may actually support the majority. 358 Md. 184, 747 A.2d 657 (2000). In that case, we did impose a more severe sanction in a reciprocal case, disbarment, rather than a period of suspension. Id. at 193, 747 A.2d at 661. Thus, it is an exception to Rule 16-773, perhaps falling under subsection (e)(4). It is significant, however, that the attorney in that case was still on probation when this Court considered the disciplinary petition. Id. at 191, 747 A.2d at 661. Attorney Grievance Comm'n v. White, 354 Md. 346, 731 A.2d 447 (1998), is not a pure reciprocal discipline case: while some of the misconduct committed by White occurred while she was practicing in the United States District Court for the District of Maryland, id. at 350-351, 731 A.2d at 450, which later sanctioned her by suspending her from practice in that court, id., significant and equally serious violations occurred in Maryland and were charged here, as an initial matter. Id. at 354-361, 731 A.2d at 452-456. Thus, that the sanction imposed was greater than that imposed by the federal District Court can not be attributed solely to a refusal to defer to that court's sanction determination due to a belief that a substantially different sanction was warranted.
Attorney Grievance Comm'n v. Parsons, 310 Md. 132, 527 A.2d 325 (1987), is an unusual case. There, following a precedent set five months earlier in a non-reciprocal attorney discipline case with facts identical to those of Parsons, we suspended Parsons for ninety days, rather than six months, which suspension was not to run concurrently with the suspension imposed by the District of Columbia Court of Appeals. Id. at 143, 527 A.2d at 330. It is significant that the District's suspension had already ended; therefore, it is likely that we would have deferred, by running our suspension concurrently, had that opportunity been available.
I dissent.
Judge RAKER joins in the views expressed herein.
NOTES
[1] Maryland Rule 16-773(b) provides:
"(b) Petition in Court of Appeals. Upon receiving and verifying information from any source that in another jurisdiction an attorney has been disciplined or placed on inactive status based on incapacity, Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals pursuant to Rule 16-751(a)(2). A certified copy of the disciplinary or remedial order shall be attached to the Petition, and a copy of the Petition and order shall be served on the attorney in accordance with Rule 16-753."
[2] This Court adopted a new version of the Maryland Lawyer's Rules of Professional Conduct, effective 1 July 2005. The MRPC sections applicable to this case are identical to the sections they replaced.
[3] MPRC 8.4 provides:
"Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
. . .
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice" (alteration added).
[4] Maryland Rule 16-752(a) states:
"(a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing."
[5] Rule 16-757 provides in pertinent part:
"(c) Findings and conclusions. The judge shall prepare and file or dictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law."
[6] The Supreme Court of Florida has also imposed a sanction reciprocal to the discipline imposed by the D.C. Court of Appeals.
[7] That rule provides:
"Rule 16-758. Post-hearing proceedings.
. . .
(b) Exceptions; recommendations. Within 15 days after service of the notice required by section (a) of this Rule, each party may file (1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations concerning the appropriate disposition under Rule 16-759(c)."
[8] We have interpreted this language to mean that attorneys being disciplined should be able to expect similar sanctions for the specified offense.
[9] We distinguished Gittens in Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 413-14, 773 A.2d 463, 485 (2001), stating that Gittens was a reciprocal discipline case and it did not apply to an original misappropriation case like Vanderlinde. Id. at 413, 773 A.2d at 484-85. With this decision we decline to follow further the reasoning in Gittens.
[10] The Court noted that, although the attorneys forged the signature, they were not prosecuted or convicted of criminal forgery.
[11] In Attorney Grievance Comm'n v. Maxwell, 307 Md. 600, 516 A.2d 570 (1986), this Court "imposed a 90-day suspension on an attorney for his `deliberate falsification of [a] notary certificate, and his knowing attestation of a false signature on a deed as genuine.' Id. at 604, 516 A.2d at 572." Parsons, 310 Md. at 142, 527 A.2d at 330.
[1] (g) Conclusive Effect of Adjudication. Except as provided in subsections (e)(1) and (e)(2) of this Rule, a final adjudication in a disciplinary or remedial proceeding by another court, agency, or tribunal that an attorney has been guilty of professional misconduct or is incapacitated is conclusive evidence of that misconduct or incapacity in any proceeding under this Chapter. The introduction of such evidence does not preclude the Commission or Bar Counsel from introducing additional evidence or preclude the attorney from introducing evidence or otherwise showing cause why no discipline or lesser discipline should be imposed.
The (e)(1) and (e)(2) exceptions relate to "notice and opportunity to be heard." See Attorney Grievance Comm'n v. Roberson, 373 Md. 328, 344-345, 818 A.2d 1059, 1069 (2003). Maryland Rule 16-773(e)(1) requires compliance with due process, and Maryland Rule 16-773(e)(2) ensures against "infirmity of proof."
[2] In Attorney Grievance Comm'n v. Dechowitz, 358 Md. 184, 747 A.2d 657 (2000), the Court disbarred the attorney, rather than impose reciprocally the sanction imposed by the United States District Court for the Northern District of California Federal Court and adopted by the Supreme Court of California. Id. at 193, 747 A.2d at 661. Noting that the attorney's sanction grew out of his guilty plea to possession of marijuana with intent to distribute, a crime similar to one for the conviction for which this Court determined that disbarment was the appropriate sanction, see Attorney Grievance Comm'n v. McGonigle, 295 Md. 264, 266, 454 A.2d 365, 367 (1983), the Court decided that it was not bound to follow the California decision, concluded that the attorney had not met his burden of presenting extenuating circumstances, and adopted bar counsel's disbarment recommendation. Id. at 193, 747 A.2d at 661.
[3] In the Conclusion to the opinion, the majority opines:
"It would be [a] grave injustice in allowing a member of this Bar to commit such an offense and be given a lesser sanction because another jurisdiction did so, while other members of the Maryland Bar would be sanctioned more severely. The current state of the law in this state warrants a substantially different discipline than that imposed by the District of Columbia for offenses of the nature extant in the instant case." 389 Md. at 555, 886 A.2d at 620.
This is hardly a demonstration of extraordinary circumstances. It is, however, perhaps a reflection and a statement by the majority of what attorney discipline, to it, has become: rather than a vehicle for the protection of the public, as our cases loudly proclaim that is its purpose, it is, more importantly, a vehicle to punish the erring attorney, to send the message forth, whether or not a lesser sanction would afford the public adequate protection. It also says a great deal about the majority's approach to comity between the various jurisdictions charged with attorney discipline.
Reciprocal discipline cases come to us with a fully developed record, after the charges against the attorney have been investigated, the attorney has been charged and, following appropriate proceedings, has been determined to have committed the misconduct charged, and the disciplinary authority, often the State's high court, after considering the facts and circumstances, including mitigating and aggravating factors, has imposed what it considers an appropriate sanction. And, because the goal of attorney discipline in the jurisdiction from which received ordinarily will be the same as in the reciprocal State, they are received, in short, having already undergone a thorough and thoughtful analysis, not simply as to the underlying conduct, but also as to the sanction necessary for the public's protection. Further analysis of the sanction by the reciprocal court is therefore not necessary to ensure the desired result, unless, of course, there are exceptional circumstances or it is supposed that this Court is, or may lay claim to being, the only court able to protect the legal consuming public from the misconduct of corrupt or misbehaving lawyers. I submit that we do not have a silver bullet, never mind the only silver bullet. As we are required to do when presented with any judgment from another State, I would have thought we would, on the basis of comity, defer to that judgment, even when it embodies a result that would not have obtained in this State. Apparently, to the majority, the need for comity in the area of attorney discipline is neither great, nor wanted. Perhaps, we would be just as well off without reciprocal discipline; of what value is it if we do not value it or use it only when it suits us to do so?
[4] On this point, the majority acknowledges the importance of the factor requiring the assessment of the facts and circumstances, "with a view toward consistent dispositions for similar conduct," but hastens to add: "a proper review of our own cases is just as important in order to ensure that all members of the Maryland Bar are subject to the same standards." 389 Md. at 549, 886 A.2d at 616. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344685/ | 472 S.E.2d 59 (1996)
196 W.Va. 318
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Crossen T. LEASE, Defendant Below, Appellant.
No. 22960.
Supreme Court of Appeals of West Virginia.
Submitted January 10, 1996.
Decided April 10, 1996.
*60 Silas B. Taylor, Managing Deputy Attorney General, Charleston, for the State.
Emmett Jessee Ballard, Assistant Public Defender, Princeton, for Appellant.
PER CURIAM.
This is an appeal by Crossen T. Lease (hereinafter "the Appellant") from an October 31, 1994, order of the Circuit Court of Mercer County sentencing him to an indeterminate term of three to twenty-three years upon his conviction of six counts of possession with intent to deliver a controlled substance.[1] The Appellant contends that the search warrant in this matter was not validly *61 obtained and that the jury instruction regarding the elements required to prove intent to deliver was inadequate. We affirm the decision of the lower court.
I.
On February 7, 1994, the Appellant and his daughter were in his home in Oakvale, West Virginia, when the child's mother, Ms. Sherry Phillips, unexpectedly arrived at the residence.[2] The child was sleeping, and Ms. Phillips informed the Appellant that she planned to remove the child from the residence. According to the Appellant's testimony, Ms. Phillips smoked marijuana and drank tequila during this visit. Ms. Phillips testified that she had taken "at least ten" Valiums that day, had smoked four or five marijuana joints, and had spent the evening drinking bourbon and tequila. The Appellant physically removed Ms. Phillips from the home, and she pounded on the door and windows until the Appellant called the police.
When Trooper T.D. Bradley arrived, he arrested Ms. Phillips for public intoxication and possession of marijuana and transported her to police barracks. En route, she informed him that the Appellant had illegal guns and drugs in the home. Based upon Ms. Phillips' information, Trooper Bradley sought a search warrant for the Appellant's residence on February 8, 1994. The affidavit in support of the application for the warrant provided as follows:
This officer rec'd [sic] a verbal statement from Sherry Phillips who lived with the accused approx. 5 year [sic]. She told this officer the accused had several illegal auto[matic] firearms and the location of same in the residence. She also told this officer where he place [sic] a small amount of marijuana and where he kept his large quantities.
No additional information was provided, and the warrant was issued by Magistrate Jerry Flanagan. Four officers executed the warrant at the Appellant's home and located legally registered firearms and illegal drugs.[3] Ms. Kathy Lawrence, a friend of the Appellant, was present at the home during the search. She was charged with grand larceny after she stole money from a room of the home where the officers had placed her during the search.
Subsequent to a September 1994 trial, the Appellant was convicted of six counts of possession with intent to deliver and was sentenced to an indeterminate term of three to twenty-three years. He appeals to this Court alleging that (1) the affidavit in support of the application for the search warrant failed to support the warrant and omitted facts which tended to diminish probable cause; and (2) the jury instruction regarding the elements of "intent to deliver" was inadequate.
II.
The Appellant maintains that the information provided in the application for the warrant was insufficient to alert the magistrate to several determinative facts. For instance, from the application presented, the magistrate did not have knowledge that Ms. Phillips, the only individual upon whose information the application was premised, had been removed from the home under arrest for public intoxication and possession of marijuana. The Appellant also insists that the magistrate should have been alerted to Ms. Phillips' extreme state of agitation with the Appellant over the circumstances surrounding the visitation of the child and Ms. Phillips' desire to remove the child from the home. The Appellant contends that such information would have placed the magistrate on notice of Ms. Phillips' possible motivation to exaggerate or provide false details. The Appellant also argues that the magistrate should have been informed that Ms. Phillips' blood alcohol level was .095 and that Ms. Phillips did not inform the officer regarding the time period during which she allegedly *62 observed the illegal drugs or firearms in the Appellant's home.
In syllabus point one of State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995), we explained as follows:
To successfully challenge the validity of a search warrant on the basis of false information in the warrant affidavit, the defendant must establish by a preponderance of the evidence that the affiant, either knowingly and intentionally or with reckless disregard for the truth, included a false statement therein. The same analysis applies to omissions of fact. The defendant must show that the facts were intentionally omitted or were omitted in reckless disregard of whether their omission made the affidavit misleading.
Id. at 598, 461 S.E.2d at 104, Syl. Pt. 1. We also specified that recklessness is to be inferred from an omission only where the material omitted would have been clearly critical to the finding of probable cause. Id. at 601, 461 S.E.2d at 107 (citing United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 193, 133 L. Ed. 2d 128 (1995)).
In syllabus point two of Lilly, we further stated that "[a] search warrant affidavit is not invalid even if it contains a misrepresentation, if, after striking the misrepresentation, there remains sufficient content to support a finding of probable cause. Probable cause is evaluated in the totality of the circumstances." Id. at 598, 461 S.E.2d at 104, Syl. Pt. 2. Additionally, the reviewing court must "determine whether ... supplemented with the omitted material, the remaining content of the affidavit is sufficient to establish probable cause." Id. at 601, 461 S.E.2d at 107. In Lilly, we determined that an affidavit underlying the warrant did not provide a substantial basis for determining the reliability of the confidential informant and was therefore insufficient to establish probable cause to issue a warrant. Id. at 604, 461 S.E.2d at 110.
In United States v. Collins, 61 F.3d 1379 (9th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 543, 133 L. Ed. 2d 446 (1995), the defendant argued that a warrant for the search of his trailer was not supported by probable cause and that he was entitled to a Franks hearing because the affidavit supporting the search warrant omitted the fact that the sheriff saw the defendant in possession of firearms in June 1993 and instead implied that the sheriff had seen the defendant shortly before the warrant was issued. Id. at 1384. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).[4] The Ninth Circuit determined that the defendant's "bare assertion that the omission of the June date was deliberate `because the [ATF] agents knew the truth and failed to include it in the warrant application,' does not establish that the omission was the result of anything other than negligence or innocent mistake." 61 F.3d at 1384. The Ninth Circuit had previously addressed this issue in United States v. Kyllo, 37 F.3d 526 (9th Cir.1994) and had established a policy similar to our rationale in Lilly. See 194 W.Va. at 601, 461 S.E.2d at 107. The Kyllo court explained that a defendant is entitled to a Franks hearing upon a showing that the affidavit contains deliberate or reckless omissions that tend to mislead and demonstrate that the affidavit supplemented by the omissions would not be sufficient to support a finding of probable cause. Kyllo, 37 F.3d at 529. With regard to the Collins' assertion that the warrant was not supported by probable cause, the court found that the affidavit revealing that the defendant had previously admitted his possession of firearms and that an investigation disclosing prior convictions and two outstanding arrest warrants adequately established probable cause. Collins, 61 F.3d at 1384.
*63 In the case at bar, we must determine whether, after striking any misrepresentations and supplementing with any omitted material, there is sufficient information to establish probable cause. In footnote ten of Lilly, we set forth a useful definition of probable cause as follows:
Probable cause has been defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion. The task of a magistrate in issuing a warrant is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). In other words, facts which would lead a reasonably cautious person to believe the search will uncover evidence of a crime will support a finding of probable cause.
194 W.Va. at 602, 461 S.E.2d at 108, n. 10.
We do not believe that the absence of certain facts within the affidavit in this case was the result of calculated, deliberate, or malicious intent. Reexamining the affidavit with the inclusion of the issues surrounding Ms. Phillips' possible deleterious motivation regarding her characterization of the Appellant, we find that the affidavit still supports a finding of probable cause based upon its sufficient allegation of "facts which would lead a reasonably cautious person to believe the search will uncover evidence of a crime...." Id. The inclusion of facts regarding Ms. Phillips' possible malevolence toward the Appellant does not invalidate the probable cause otherwise demonstrated by the affidavit.
III.
The Appellant also contends that no adequate jury instruction regarding the elements of "intent to deliver" was provided to the jury and that his conviction for possession with intent to deliver is invalid absent such instruction. The only instruction tangentially addressing that issue provided as follows:
It is the duty of the State to allege and prove criminal intent and if from the whole evidence, the jury has a reasonable doubt as to whether such intent existed, then you should find the petitioner not guilty. Intent may be shown by inferences from all the facts and circumstances in the case, including the actions of the petitioner and, if from all this you are satisfied beyond a reasonable doubt that the petitioner intended to do that which he did or that which was the immediate and necessary consequence of his act, you may find that intent has been shown.
Although no objection was raised at trial, the Appellant now maintains that his conviction should be reversed on this issue because the inadequacy of the instruction resulted in jury confusion. The Appellant asserts that failure to give a proper instruction on "intent to deliver" was error, regardless of any failure to object at trial. Indeed, we explained in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), that the absence of a specific objection at trial is not fatal to argument on appeal where the issue is so fundamental and prejudicial as to constitute plain error. 194 W.Va. at 18, 459 S.E.2d at 129.
We have previously stated that we review a trial court's failure to give a requested instruction or the giving of a particular instruction under an abuse of discretion standard, but where a question is posed regarding whether the jury instructions failed to state the proper "legal standard," our review is plenary. State v. Guthrie, 194 W.Va. 657, 671, 461 S.E.2d 163, 177 (1995). In syllabus point four of Guthrie, we explained as follows:
A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has *64 broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
Id. at 663-64, 461 S.E.2d at 169-70.
We recognized in Miller that "[w]ithout [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts." 194 W.Va. at 15, 459 S.E.2d at 126 n. 20. In Guthrie, we explained as follows:
The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make.
194 W.Va. at 672, 461 S.E.2d at 178.
Nevertheless, we expressly stated in Miller that counsel cannot remain silent in the trial court and then for the first time on appeal spring out an objection that if made in the trial court would have given the trial judge an opportunity to correct the alleged error. 194 W.Va. at 18, 459 S.E.2d at 129. Rule 30 of the West Virginia Rules of Criminal Procedure confirms our allegiance to the "raise or waive" rule. The one exception is "plain error." Thus, our review of the lack of a more specific instruction on intent is reviewed only for plain error. See State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).
As a general rule, our cases consistently have refused to recognize plain error, even error of constitutional dimension, where the giving of an inadequate instruction did not substantially impair the truth-finding function of the trial. See Syl. Pt. 2, State v. Hutchinson, 176 W.Va. 172, 342 S.E.2d 138 (1986). Indeed, in State v. Nicholas, 182 W.Va. 199, 387 S.E.2d 104 (1989), a case involving the delivery of marijuana, we held that the failure totally to instruct the jury on the element of intent had no impact on the truth-finding function process and, therefore, was not plain error. 182 W.Va. at 203, 387 S.E.2d at 108.
As in Nicholas, we find that the alleged faulty instruction on intent does not rise to the level of plain error.[5] In fact, we find the intent instruction given by the trial court to be adequate in light of the absence of an objection or request for a more specific instruction. Where a defendant's theory turns on lack of intent, jury instructions that accurately reflect the intent required for the offense obviate the need for a more specific instruction on intent. Because the specific instruction given on intent required the jury to acquit if the jury had "a reasonable doubt as to whether such intent existed," any further instruction on intent was unnecessary absent a specific request. The instruction given fairly and accurately explained the relevant legal standard, and defense counsel had a full opportunity to argue his case to the jury. In the absence of a specific request, our concern is not whether the jury instructions describe in detail every aspect of legal behavior, but whether the jury instructions adequately define what is illegal behavior. The jury was adequately instructed, and we find no reversible error.
Affirmed.
NOTES
[1] The Appellant received one to five years for possession with intent to deliver marijuana, one to fifteen years for the cocaine violation, one to three years for the Valium violation, one to five years for the tylox violation, one to five years for the percocet violation, and one to five years for the luchem violation. The sentences on the last three counts were suspended with probation for a period of five years to commence upon completion of the Appellant's sentences in counts one, two, and three, effectively providing the Appellant with an indeterminate sentence of three to twenty-three years with probation.
[2] The Appellant and Ms. Phillips had not resided together for the prior 14 months, and the child had not visited the Appellant since that separation.
[3] The police located marijuana, one-half gram of cocaine, 55 Valiums for which the Appellant had a prescription, four percocets, two luchems, and 15 tylox pills. A police dog trained in drug detection located additional drugs in the Appellant's car.
[4] As we explained in syllabus point one of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982),
In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), the United States Supreme Court held it constitutionally permissible under certain conditions to attack a search warrant affidavit. If such attack is successful, this will result in voiding the search warrant and rendering the property seized under such warrant inadmissible.
170 W.Va. at 420, 294 S.E.2d at 274.
[5] The record is silent as to why counsel did not object or request a more specific instruction. It is conceivable, considering the circumstantial nature of the case, that counsel felt the chances of acquittal were better without a specific instruction on intent to deliver. As we stated in State v. Spence, 182 W.Va. 472, 388 S.E.2d 498 (1989), "[t]he plain error rule presupposes that the record is sufficiently developed to discern the error." 182 W.Va. at 481, 388 S.E.2d at 507. Here, we have no basis for knowing whether the counsel as a trial tactic waived the opportunity to request a more specific instruction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344428/ | 101 Wash. 2d 137 (1984)
675 P.2d 1229
In the Matter of the Marriage of JANICE KAY MIRACLE, Petitioner, and HARRY M. MIRACLE, Respondent.
No. 49830-0.
The Supreme Court of Washington, En Banc.
February 9, 1984.
Leonard W. Smith and Richard Solberg, for petitioner.
Felice & Clayton, by Victor J. Felice, for respondent.
DIMMICK, J.
In a dissolution proceeding, may the trial court offset the community's beneficial use of one spouse's *138 separate asset against the amount of community funds expended toward that property? Our affirmative answer necessarily reverses the Court of Appeals remand in this case and affirms the trial court's ruling.
Janice and Harry Miracle were married in 1974. At the time of marriage Mrs. Miracle owned two houses awarded her from a previous marriage. One of these homes was used as a family residence until 1980 when the house was sold. The Miracles separated in 1981.
During the marriage, the Miracles had one joint checking account into which all funds were deposited, whether wages or rental income. All payments on the purchase contracts and upkeep expenses for both houses were paid from the joint account.
After trial in the dissolution proceeding, the trial court found that the community had paid from $124 to $151 per month toward the purchase contract payments on the family residence. Mr. Miracle had provided no personal services, nor were any improvements made to the home. The trial court also determined that the reasonable rental value of the residence over the period of the marriage was $250 to $300 per month. The trial court then concluded that the reasonable rental value exceeded the payments that the community had made on the home, and therefore these payments constituted reasonable rental for the premises and the benefits which it afforded the community.
Mr. Miracle appealed the trial court's property distribution, raising numerous issues in the Court of Appeals, including the validity of offsetting the family's beneficial use of the home against the community funds expended on the home. The Court of Appeals rejected all of his contentions except the trial court's offset for beneficial use. The Court of Appeals remanded on this issue implying that the trial court had erred in failing to impress Mrs. Miracle's separate property with an equitable lien in favor of the community for the community funds expended on the family residence. The trial court was ordered to determine the amount the community paid on the purchase contract, with *139 Mr. Miracle to be awarded one-half of that amount. Mrs. Miracle petitioned this court for review of the Court of Appeals remand. Mr. Miracle did not cross-petition.
[1] We believe that the trial court properly refused to impose an equitable lien in favor of the community in view of the finding that the community had been adequately compensated for its expenditures by its beneficial use of the premises. An equitable lien is a remedy intended to protect one party's right to reimbursement. In re Marriage of Harshman, 18 Wash. App. 116, 567 P.2d 667 (1977); Cross, The Community Property Law in Washington, 49 Wash. L. Rev. 729, 776 (1974). A right to reimbursement may not arise if the contributing spouse received a reciprocal benefit flowing from the use of the property. Merkel v. Merkel, 39 Wash. 2d 102, 234 P.2d 857 (1951); In re Estate of Woodburn, 190 Wash. 141, 66 P.2d 1138 (1937); In re Marriage of Johnson, 28 Wash. App. 574, 625 P.2d 720 (1981); In re Marriage of Harshman, supra. In that case, equity will find that the contributing spouse has already been reimbursed. Cross, 49 Wash. L. Rev. at 777 n. 220, 779.
[2] In a dissolution proceeding, the trial court is required to "do equity." See RCW 26.09.080; Baker v. Baker, 80 Wash. 2d 736, 498 P.2d 315 (1972). The trial court must take into account all the circumstances in deciding whether a right to reimbursement has arisen. The trial court may impose an equitable lien to protect the reimbursement right when the circumstances require it. See Cross, 49 Wash. L. Rev. at 776-77. We review the trial court's decision only for abuse of discretion. Baker, at 747.
We cannot find that the trial court abused its discretion in refusing to recognize a right to reimbursement in this case. The Court of Appeals is reversed and the trial court judgment reinstated.
WILLIAMS, C.J., ROSELLINI, UTTER, BRACHTENBACH, DOLLIVER, DORE, and PEARSON, JJ., and CUNNINGHAM, J. Pro Tem., concur.
*140 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1136960/ | 690 So. 2d 28 (1997)
STATE of Louisiana
v.
Arthur RHODES.
No. 95-KH-2265.
Supreme Court of Louisiana.
March 14, 1997.
Denied.
KNOLL, J., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1136967/ | 614 P.2d 386 (1980)
STATE of Hawaii, Plaintiff-Appellee,
v.
Jules Yoshimitsu SUGIMOTO, Defendant-Appellant, and Ashley Alexander Ancheta and Rodney Kawehikulani Kahao, Defendants.
No. 7187.
Supreme Court of Hawaii.
July 11, 1980.
*388 Richard Turbin, Honolulu, for defendant-appellant.
Wesley T. Kan, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.
Before RICHARDSON, C.J., OGATA, MENOR and LUM, JJ., and MARUMOTO, Retired Justice, assigned by reason of vacancy.
OGATA, Justice.
Jules Sugimoto, hereinafter defendant-appellant, has appealed from convictions of robbery, burglary, and rape. For the reasons set out below, we affirm the judgment of the trial court.
In June 1977, Rebecca Chang, Mary Wong, James Tam, and Irene Freitas were robbed at gunpoint at the home of the first three persons. Personal property and cash were taken from all of the victims. James Tam was directed to write a check for cash in the amount of one thousand dollars. After two of the assailants left the house, Mrs. Freitas, while blindfolded, was raped by the remaining intruder.
On October 5, 1977, the defendant-appellant, Ashley Ancheta, and Rodney Kahao *389 were indicted on four counts of robbery in the first degree and one count of burglary in the first degree. Also, the defendant-appellant was charged with rape in the first degree. Ashley Ancheta pleaded guilty to three counts of robbery. All the charges against Rodney Kahao were dismissed pursuant to an immunity agreement between him and the state. Kahao later testified as a prosecution witness against the defendant-appellant.
On September 14, 1978, the defendant-appellant was found guilty by a jury of three counts of robbery in the first degree, one count of robbery in the second degree, one count of burglary in the first degree, and one count of rape in the first degree. The instant appeal followed. The defendant-appellant presents the following contentions:
I. The trial court improperly allowed two unlisted witnesses to testify for the state.
II. The trial court erred by granting immunity to one of the prosecution witnesses.
III. The defendant-appellant's cross-examination of a prosecution witness was improperly limited by the trial court.
IV. The trial court erred when it allowed certain statements made by the defendant-appellant without the benefit of Miranda warnings into evidence.
VI. Demonstrative evidence for which a complete chain of custody had not been established should not have been admitted by the trial court.
VIII. The trial court erred when it instructed the jury.
I.
The defendant-appellant alleges that the trial court erred by allowing his co-defendants, Rodney Kahao and Ashley Ancheta, to testify as witnesses for the prosecution. Counsel for the defendant-appellant was not formally notified that the State would call Kahao and Ancheta until the morning of the trial. Defense counsel argued that the failure to list Kahao and Ancheta as prosecution witnesses violated Rule 16, Hawaii Rules of Penal Procedure, and moved for a mistrial. The trial court denied the motion and allowed the trial to continue.
Rule 16, Hawaii Rules of Penal Procedure, states in pertinent part:
(b) Disclosure by the Prosecution.
(1) Disclosure Upon Written Request of Matters Within Prosecution's Possession. Upon written request of defense counsel, the prosecutor shall disclose to him the following material and information within the prosecutor's possession or control:
(i) the names and last known addresses of persons whom the prosecutor intends to call as witnesses. .. .
The prosecuting attorney did fail to notify the defense attorney that the co-defendants would testify in violation of this rule. However, violation of Rule 16 does not warrant an immediate declaration of a mistrial by the trial court. The rule provides that where a party fails to comply with its terms "the court may order such party to permit the discovery, grant a continuance, or it may enter such other order as it deems just under the circumstances." Rule 16(e)(8)(i), HRPP (emphasis added).
We hold that the trial court did not err in its approach to the problem of the unlisted prosecution witnesses. The trial judge fully inquired into the circumstances surrounding the calling of Kahao and Ancheta. See Smith v. State, 319 So. 2d 14, 17 (Fla. 1975); Bradford v. State, 278 So. 2d 624, 625 (Fla. 1973). The court also made every effort to allow the defense attorney to interview the unlisted witnesses.[1] In this way the court below insured that the defendant-appellant was not surprised or prejudiced by the testimony of the two witnesses. See Gibson v. State, 252 Ark. 988, *390 992-93, 482 S.W.2d 98, 101 (1972); People v. Heller, 131 Ill. App. 2d 799, 804, 267 N.E.2d 685, 689-90 (1971); Lund v. State, 264 Ind. 428, 345 N.E.2d 826, 829 (1976); State v. Sevcik, 239 N.W.2d 571, 573 (Iowa 1976); Irby v. State, 60 Wis. 2d 311, 321, 210 N.W.2d 755, 761 (1973). The court below acted properly in accordance with Rule 16, HRPP.
II.
Contrary to defendant-appellant's assertion, the court below did not err by granting immunity to Rodney Kahao so that he would testify against the defendant-appellant. The witness immunity statute in effect at the time of the trial stated in relevant part:
The direction to the witness to testify or produce other information shall be issued by the court upon application therefor by the state. The application may be made whenever, in the judgment of the state, the witness has asserted or is likely to assert his privilege against self-incrimination and his testimony or other information is or will be necessary to the public interest.
HRS § 621C-2 (1971). The requirements of the statute were satisfied in this case. It is clear from the record that the trial judge determined that Kahao was likely to assert his privilege against self-incrimination if he was called as a prosecution witness and that Kahao's testimony was necessary to the public interest. Immunity therefore properly was granted to Rodney Kahao.
III.
The defendant-appellant contends that the court below erred in restricting his attempts to cross-examine Rodney Kahao for impeachment purposes. Counsel for the defendant-appellant sought to question Kahao about his involvement with the use and sale of marijuana and about his prior criminal record.
The defendant-appellant attempted to impeach Kahao's credibility by cross-examining him about his general use of marijuana and possible involvement in the sale of marijuana. A witness may not be questioned as to his involvement with drugs solely to show that he is unreliable or lacks veracity. Morrell v. State, 575 P.2d 1200, 1204 (Alaska 1978); Fields v. State, 487 P.2d 831, 844 (Alaska 1971); People v. Buono, 191 Cal. App. 2d 203, 233, 12 Cal. Rptr. 604, 621 (1961); People v. Steele, 193 Colo. 87, 94, 563 P.2d 6, 11 (1977); Garcia v. State, 240 Ga. 796, 801, 242 S.E.2d 588, 592 (1978); State v. Belote, 213 Kan. 291, 295-96, 516 P.2d 159, 163 (1973); State v. Dault, 19 Wash. App. 709, 719, 578 P.2d 43, 49 (1978); see generally McCormick's Handbook of the Law of Evidence § 45, at 94-95 (2d ed. 1972). The trial court did not abuse its discretion in restricting the defendant-appellant's cross-examination of Kahao. Kekua v. Kaiser Foundation Hospital, 61 Haw. 208, 221, 601 P.2d 364, 373 (1979); People v. Steele, supra; Garcia v. State, supra; State v. Belote, supra.
Counsel for the defendant-appellant also attempted to impeach Kahao by showing that he had made a deferred acceptance of guilty (DAG) plea in a prior criminal case. While a prior conviction which is relevant to the witness's truth and veracity may be used for impeachment purposes, Asato v. Furtado, 52 Haw. 284, 293, 474 P.2d 288, 295 (1970), a DAG plea is not a conviction and may not be so used. HRS § 853-1(d) (1976).[2] The court below acted correctly in preventing the cross-examination of Kahao as to his prior DAG plea.
IV.
The defendant-appellant asserts that the trial court erred in admitting his June 4 statement to the police detective into evidence because the detective did not inform him of his rights to remain silent and to have an attorney present. Defendant-appellant maintains that when questioning of *391 a person occurs at a police station, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) requires that these procedural safeguards be provided to him.[3] We disagree.
The requirements delineated in Miranda, supra at 467-73, 86 S.Ct. at 1624-1625, apply only when custodial interrogation takes place. Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. at 1612; State v. Reese, 62 Haw. ___, ___, 605 P.2d 935, 936 (1980). To determine whether custodial interrogation occurred and Miranda warnings were required, we must objectively examine the totality of circumstances at the time of the questioning. State v. Patterson, 59 Haw. 357, 361, 581 P.2d 752, 755 (1978). Factors for our consideration include the time and place of the interrogation, the length of the interrogation, the questions asked, the behavior of the police officer, and any other pertinent circumstances.
The defendant-appellant contends that because the questioning took place at the police station, Miranda warnings should have been given to him even though at the time of the interrogation he was not a suspect in the investigation. We hold that the fact that the questioning occurred in the police station is but one factor, albeit an important one, in deciding whether the defendant-appellant was in custody when he was questioned. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977); State v. Patterson, supra, 59 Haw. at 360, 581 P.2d at 754.
In the instant case, the defendant-appellant came to the police station voluntarily at the request of the police detective. At that time, defendant-appellant was not a suspect. The detective was trying to locate another suspect through the defendant.[4] The tone of the questioning was not coercive and the detective did not make any threats. The defendant-appellant was free to leave the station after the interview. He was not arrested until two days after the questioning. Under these circumstances, we find that the defendant-appellant was not in custody and therefore no Miranda warnings needed to be given.
V.
Defendant-appellant contends that the court below improperly admitted hearsay evidence against him during the trial. Detective Benson testified that Velma Yokoyama, the defendant's aunt, admitted that she lied to him on the defendant's behalf during their first interview. Counsel for the defendant-appellant objected to this testimony as hearsay.
Hearsay is an out of court statement offered to show the truth of the matter asserted. Kekua v. Kaiser Foundation Hospital, 61 Haw. 208, 217, 601 P.2d 364, 370 (1979); State v. Murphy, 59 Haw. 1, 16, 575 P.2d 448, 458-59 (1978); McCormick, supra at § 246. Detective Benson's testimony regarding Ms. Yokoyama's falsehood was not hearsay because it was not being offered to show that Ms. Yokoyama actually lied. Ms. Yokoyama had already testified that she initially told Detective Benson a false story. Detective Benson's testimony was properly admitted to explain his delay in arresting the defendant-appellant. See United States v. Zamarripa, 544 F.2d 978, 982 (8th Cir.1976); Territory v. Williams, 41 Haw. 348, 351 (1956); Kainea v. Kreuger, 31 Haw. 108, 113 (1929); McCormick, supra at § 249; 4 Weinstein's Evidence 801(c)[01], at 801-70 (1978).
*392 VI.
The defendant-appellant argues that the trial court erred by admitting into evidence a check for which a complete chain of custody had not been established. A trial court has broad discretion in deciding whether to admit demonstrative evidence where the object possesses unique and readily identifiable characteristics and the substance composing the item is relatively impervious to change. McCormick, § 212 at 527; see State v. Olivera, 57 Haw. 339, 344, 555 P.2d 1199, 1202 (1976). The check in the instant case met the above requirements. Further, three witnesses positively identified the check. The trial court did not abuse its discretion by allowing the check into evidence.
VII.
The defendant-appellant sets out three instances of alleged prosecutorial misconduct which interfered with his right to a fair trial. First, he argues that the prosecutor misled his counsel as to the witnesses the State planned to call. Although the prosecutor did fail to notify the defendant-appellant that the co-defendants would testify, we find no deliberate attempt to deceive the defense attorney. See section I of the opinion for a more extensive discussion of this issue. Second, the defendant-appellant contends that the prosecutor improperly stated facts not in evidence. We find no misstatement. Third, the prosecutor stated in the presence of the jury that the court was withholding evidence. Although this was an inappropriate comment, it did not prejudice the defendant-appellant so as to deny him a fair trial. See State v. Kahalewai, 55 Haw. 127, 129, 516 P.2d 336, 338 (1973).
VIII.
The defendant-appellant contends that the trial court erred in refusing to instruct the jury on the offense of receiving stolen property in addition to its instruction on first degree robbery.[5] A court may instruct on an offense not specifically charged in the indictment when it is a lesser included offense of the original charge. State v. Stone, 571 S.W.2d 486, 487 (Mo. App. 1978). Because receiving stolen property is not a lesser included offense within robbery in the first degree,[6] the trial court acted correctly in refusing to instruct the jury on that crime.
Affirmed.
NOTES
[1] Counsel for the defendant-appellant interviewed Rodney Kahao over the weekend before he testified. The court below changed the order of the remaining witnesses so that defense counsel could interview Ashley Ancheta.
[2] The statute states that "[d]ischarge of the defendant and dismissal of the charge against him under this section shall be without adjudication of guilt, shall eliminate any civil admission of guilt, and is not a conviction." (Emphasis added.)
[3] The Supreme Court summarized the required procedures as follows:
Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.
Miranda, supra at 444, 86 S.Ct. at 1612.
[4] In fact, the detective requested the defendant-appellant to look through the police mug photographs in the hope that he could identify the unknown suspect.
[5] The applicable statutes in 1977 are set out here. They are identical to the statutes presently in effect.
§ 708-830 Theft. A person commits theft if he does any of the following:
* * * * * *
(8) Receiving stolen property. He intentionally receives, retains, or disposes of the property of another, knowing that it has been stolen, with intent to deprive the owner of the property. It is prima facie evidence that a person knows the property to have been stolen if, being a dealer in property of the sort received, he acquires the property for a consideration which he knows is far below its reasonable value.
* * * * * *
§ 708-840 Robbery in the first degree. (1) A person commits the offense of robbery in the first degree if, in the course of committing theft:
(a) He attempts to kill another, or intentionally inflicts or attempts to inflict serious bodily injury upon another; or
(b) He is armed with a dangerous instrument and:
(i) He uses force against the person of the owner or any person present with intent to overcome the owner's physical resistance or physical power of resistance; or
(ii) He threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property.
(2) As used in this section, "dangerous instrument" means any firearm, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or threatened to be used is capable of producing death or serious bodily injury.
(3) Robbery in the first degree is a class A felony.
[6] Theft by the receipt of stolen goods requires knowledge that such goods have been stolen. This is not an element of the offense of robbery. See note 5, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750611/ | 545 So. 2d 918 (1989)
HOLLYWOOD MALL, INC., a Florida Corporation, Theodore R. Stotzer, Bernard Budd, William D. Horvitz and James O. Lewis, Jointly and Severally, Appellants,
v.
John V. CAPOZZI and Gibraltar Development, Inc., a Florida Corporation, Appellees.
Nos. 87-2553, 88-1079.
District Court of Appeal of Florida, Fourth District.
May 10, 1989.
Rehearing Denied July 21, 1989.
*919 William S. Spencer of Ellis, Spencer, Butler & Kisslan, Hollywood, and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellant-Hollywood Mall, Inc.
Linda R. Spaulding, Michael J. McNerney and Harris Solomon of Brinkley, McNerney, Morgan & Solomon, Fort Lauderdale, for appellees-John V. Capozzi and Gibraltar Development, Inc.
WARNER, Judge.
This is an appeal from a final judgment granting specific performance of a real estate contract. The seller appeals claiming that (1) there was no valid, enforceable contract which could be enforced by specific performance, and (2) that even if there were a binding contract, the purchaser failed to prove that it was ready, willing, and able to perform its obligations under the contract. Thus the trial court erred in granting specific performance.
We find no error as to the first point on appeal. There was substantial, competent evidence to support the trial court's finding that there was a binding contract which had been accepted by the seller and whose acceptance was communicated to the purchaser. Kendel v. Pontious, 261 So. 2d 167 (Fla. 1972); Gateway Cable T.V., Inc. v. Vikoa Construction Corp., 253 So. 2d 461 (Fla. 1st DCA 1971).
However, with respect to the second point, we find that the trial court erred in granting specific performance where there was no evidence that the purchaser was ready, willing and able to perform the contract. The letter of intent agreed to by John Capozzi or assigns as purchaser was formalized into a contract between Hollywood Mall, Inc., as seller, and Gibralter Development Corporation as purchaser. Gibralter was a corporation which was activated by Capozzi solely for the purchase of this property and whose stock was owned by Capozzi's children. At the organizational meeting of its board of directors of which Capozzi was chairman, the minutes reflect that the corporation did not have the funds yet available to pay the deposit for the proposed purchase, the deposit being $15,000, but that Capozzi would loan that amount to the corporation. Further, *920 Capozzi would agree to furnish such additional funds which may be required to meet expenses prior to the closing of the real estate transaction. There is nothing else to indicate how the corporation would secure the funds to close on this $1,850,000 contract.
Appellee responds to this lack of proof of Gibralter's ability to perform the contract by claiming that Capozzi would have produced the funds to close this cash transaction. Clearly, the trial court looked at Capozzi's ability to close the transaction because it found that "Plaintiff presented a prima facie case of [ready, willing and able buyer] by reference to plaintiff's [Capozzi's] other completed projects in Broward... ." However, Mr. Capozzi was under no obligation to provide the funds to the corporation to close the transaction, and Gibralter cannot be considered to be ready, willing and able to perform when its only ability is derived from funds not within its control and subject to the gratuitous payment by another. See Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377, 1385 (Kan. 1974); Potter v. Ridge Realty Corporation, 28 Conn. Super. Ct. 304, 259 A.2d 758 (1969). However, even if we do consider the financial ability of Mr. Capozzi to close this transaction, such ability is nowhere present in this record. And it is the burden of proof of the plaintiff to show it is ready, willing and able to perform the contract to establish a prima facie case for specific performance. Glave v. Brandlein, 196 So. 2d 780 (Fla. 4th DCA 1967).
What must the purchaser show to prove that he was "ready, willing, and able" to perform the contract? In Perper v. Edell, 160 Fla. 477, 35 So. 2d 387 (1948) the Supreme Court stated that "(Financially) `able' means that the proposed purchaser is able to command the necessary money to close the deal on reasonable notice or within the time stipulated by the parties." Although Perper was a suit to collect a broker's commission, a necessary element of proof was that the broker had to produce a purchaser ready, willing and able to perform. Thus, it is analogous to the instant situation. In Perper, the court held that evidence based on the financial responsibility and business standing of a proposed purchaser would be admissible to prove financial ability.
In Shell Oil Co. v. Kapler, 235 Minn. 292, 50 N.W.2d 707, 712 (1951), the Supreme Court of Minnesota stated in a case for specific performance:
Rules for testing a purchaser's financial ability to buy are not to be reduced to any unyielding formula, but must be flexible enough to accomplish their purpose according to the particular facts of each case. In ascertaining the rules reflected by an endless variety of cases, it is particularly important to bear in mind that no decision is authoritative beyond the scope of its controlling facts. Difficulty in both stating and applying the rules stems principally from a failure to keep in mind that their purpose-the protection of good faith sellers as well as of bona fide purchasers, sellers, brokers, and other persons similarly situated is to establish a purchaser's financial ability to buy with reasonable certainty. A purchaser may not have the necessary cash in hand, but that alone, it is recognized, does not disqualify him if he is otherwise so situated that he is reasonably able to command the requisite cash at the required time. On the other hand, the seller is not required to part with his property to a purchaser whose financial ability rests upon nothing more than shoestring speculation or upon attractive probabilities which fall short of reasonable certainty of the purchaser's financial ability to pay and, on the other hand, to protect the purchaser and persons similarly situated from a technical, insubstantial, or sharp-dealing disqualification.
Generally speaking, a purchaser is financially ready and able to buy: (1) If he has the needed cash in hand, or (2) if he is personally possessed of assets which in part may consist of the property to be purchased and a credit rating which enable him with reasonable certainty to command the requisite funds at the required time, [citations omitted] or (3) if he has definitely arranged to raise the *921 necessary money or as much thereof as he is unable to supply personally by obtaining a binding commitment for a loan to him for that purpose by a financially able third party, irrespective of whether such loan be secured in part by the property to be purchased. Although no precise line of demarcation between the application of the second and third divisions of the above rule can be laid down for all cases, it is clear-in the light of the purpose of the rule that where the purchaser relies primarily, not upon his own personal assets, but upon the proceeds of a contemplated loan or loans to be made to him by a third party, he is financially able to buy only if he has a definite and binding commitment from such third-party loaner. Even though the third party is financially able, his promise is of no avail unless made for an adequate consideration. A purchaser who personally has little, if any, cash or other assets must establish that the financial crutches to be loaned him by others are both legally and financially dependable.
See also Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377 (1974).
Applying those rules to the facts of this case, it is clear that appellee offered no evidence which would show that Mr. Capozzi had the financial ability to close this transaction on behalf of Gibraltar. Mr. Capozzi was the sole shareholder of a savings and loan association in St. Louis which at the time of this transaction, had been taken over by the Federal regulatory agency, and Mr. Capozzi was excluded from its operations. The record reveals that over a seven year period of time, he built several large real estate projects in Broward County, but there is nothing in the record to indicate whether he owned those projects or even whether they were financially successful. It was also shown that Mr. Capozzi negotiated and closed a $10,000,000.00 real property sale with representatives of appellee at some time in the past, but again there is no evidence of whether Capozzi consummated the purchase himself or as a representative of his savings and loan or its subsidiary for real estate development over which Capozzi had no further control. There is also in the record evidence that Capozzi had an offer to purchase the same property for substantially more than the contract which is the subject matter of this suit, but that contract was never concluded. Thus, it cannot serve as evidence to show that Capozzi was ready, willing and able to close on the subject contract unless there was evidence presented that this subsequent purchaser was ready, willing and able to close on the contract.
That Mr. Capozzi closed deals in the past says nothing about his present ability. There was no proof that he had cash in hand or that he was personally possessed of assets and a credit rating which would enable him with reasonable certainty to command the requisite funds to close. While the property may have been more valuable than the purchase price, there was no evidence offered to show that he could obtain a loan for that amount. Although we are reluctant to reverse a judgment of a trial court on a fact issue, it is our duty to do so when there are no facts in the record which would support that judgment. Oceanic International Corp. v. Lantana Boatyard, 402 So. 2d 507, 511 (Fla. 4th DCA 1981).
Although the trial court determined that by granting judgment for specific performance the claim for damages was moot, our reversal of the judgment for specific performance does not require a remand for the trial court to reconsider the issue of damages. To obtain damages for anticipatory breach of contract, the purchaser must also show that he was ready, willing, and able to perform the contract. Hospital Mortgage Group v. First Prudential Development Corporation, 411 So. 2d 181 (Fla. 1982); Stanley v. Anthony Farms, 93 Fla. 295, 112 So. 57 (1927). We thus reverse and remand with directions to enter a judgment in favor of appellant.
Our consideration of the issues on the plenary appeal has also rendered moot the issues raised in the appeal of the post-judgment order denying appellant's motion *922 to vacate which was consolidated with the plenary appeal for disposition.
REVERSED AND REMANDED WITH DIRECTIONS TO ENTER FINAL JUDGMENT FOR APPELLANT.
DOWNEY and DELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1780847/ | 941 S.W.2d 177 (1996)
UNIVERSITY PREPARATORY SCHOOL, Appellant,
v.
William HUITT, III and Barbara Huitt, individually and as next friend of Marc Huitt, Appellees.
No. 13-94-439-CV.
Court of Appeals of Texas, Corpus Christi.
September 26, 1996.
Rehearing Overruled January 9, 1997.
*179 Robert J. Banks, Harlingen, for appellant.
Jeffrey L. Jackson, San Benito, for appellee.
Roger W. Hughes, Craig H. Vittitoe, Adams & Graham, Harlingen, ad litem.
Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.
OPINION
SEERDEN, Chief Justice.
Fourteen-year-old Marc Huitt was seriously injured when he fell from a balcony at his school. Huitt's parents sued the school and several students who had allegedly encouraged Huitt to climb up on the balcony and to jump from it into the school swimming pool. The Huitts alleged that the school negligently supervised the pool area and that the other students negligently caused Huitt to fall. Student Eric Booth settled with the Huitts before jury selection. Students William Lyford and Charles Blakey were nonsuited before the case was submitted to the jury. The jury found Huitt and the school partially negligent. The trial court then entered judgment for the Huitts, giving the school a percentage credit because of Booth's settlement. The school appealed. We affirm.
The facts show that on September 21, 1992, Huitt was about three weeks into his first semester at University Preparatory School. During his lunch break, Huitt went to the pool where upper classmen Booth, Lyford, Blakey and others were playing. No lifeguard was on duty. Mark Paschall, the teacher assigned to supervise the lunch period, was present in a nearby office where he could not see, but should have been able to hear, activity at the pool. At some point, the upper classmen started to jump into the pool from the fire escape balcony of a classroom building adjacent to the pool. Huitt had seen these students jump off the balcony into the pool on other days. Student Eric Booth testified that such activity occurred frequently, although it was against school rules. School officials had warned students not to engage in this activity.
Just prior to Huitt's fall, Jo Ellen Paschall, the school administrator, had been in the office with Mark Paschall and heard a large splash. She suspected that someone had jumped off the balcony. She went to the pool, but the students denied that anyone had jumped. She warned the students that anyone who jumped off the balcony would be sent home. Paschall left the pool area. Despite her warning, the students resumed jumping from the balcony. At some point, the upper classmen enticed Huitt to climb the fire escape. Huitt fell from the balcony onto the concrete patio below after climbing on top of the fire-escape-balcony railing.
The case was submitted to the jury on negligence issues. The trial court also submitted a question concerning Huitt's status as a trespasser on the balcony. The jury found the school 70% negligent and Huitt 30% negligent, and it found that Huitt was a trespasser. The Huitts then filed a motion to disregard the jury finding that Huitt was a trespasser and requested the court to enter judgment on the negligence findings. The trial court heard argument on the Huitts' motion and entered judgment for the Huitts.
In points of error one and two, the school presents various reasons why the judgment should be reversed. The school contends that the evidence was legally and factually insufficient to establish that (1) the school should have foreseen that Huitt would climb the fire escape and attempt to jump into the pool and (2) the school's negligence, if any, was the proximate cause of Huitt's injuries. The school also claims it had no duty to control Huitt's conduct, was not required to foresee his negligent conduct, and discharged any duty to Huitt by posting and generally enforcing pool rules. Finally, the school argues that the case should have been submitted *180 to the jury only on a premises liability theory.
The school's duty, foreseeability, proximate cause, premises liability and evidentiary arguments are intertwined and can be addressed together. Essentially, the school contends that it owed Huitt no duty other than that owed to a trespasser, and, even if it did owe Huitt some duty, then the evidence shows that it either discharged its duty or was absolved of responsibility because of Huitt's own negligent conduct.
We reject the school's argument that it owed Huitt no duty beyond that which it owed to a trespasser. Huitt was a student at the school, was injured during the school day, on school property, during a time when the school had accepted responsibility for supervising its students. Various cases lead us to conclude that, under such circumstances, a school has the duty to reasonably care for the well-being and safety of its students. See Goston v. Hutchison, 853 S.W.2d 729, 733 (Tex.App.Houston [1st Dist.] 1993, no writ) (court implies existence of cause of action for negligent supervision against public school but for immunity of Tort Claims Act); Smith v. University of Texas, 664 S.W.2d 180, 188 (Tex.App.Austin 1984, writ ref'd n.r.e.)(negligent supervision of shot-put area found to be viable cause of action against university); Sewell v. London, 371 S.W.2d 426, 427 (Tex.Civ.App.Texarkana 1963, no writ)(teacher failed to adequately warn or supervise student in building trades class). Under the facts, the school was required to reasonably supervise the behavior of its adolescent pupils.
Having determined that the school had this duty, we must determine whether the evidence is factually and legally sufficient to support the jury's negligence findings. In reviewing legal insufficiency, we examine only the evidence and inferences tending to support the jury's findings and disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). When reviewing factual sufficiency points, we examine the entire record to determine if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
The school claims lack of evidence of foreseeability and proximate cause. The two elements of proximate cause are cause in fact and foreseeability of risk. City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Foreseeability does not require the actor to anticipate the precise manner in which injury will occur. Id. All that is required is that the injury be of such a general character as might reasonably have been anticipated, and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 551 (Tex.1985).
The evidence shows that at least three students frequently jumped into the swimming pool from the fire escape balcony, that this activity was against school rules, and that the students had been warned by Jo Ellen Paschall not to jump from the balcony. In addition, there is evidence that, before the incident, Huitt's mother had complained to Jo Ellen Paschall that some boys were trying to initiate Huitt by encouraging him to jump off a balcony.
Jo Ellen Paschall testified that she had never seen anyone jump, but she knew of one instance, a number of years ago, when someone supposedly jumped off the balcony into the pool. On the day Huitt was injured, she heard a large splash, went to the pool and warned her students that if they jumped off the balcony, they would be suspended. After warning the students, she left the pool area. Jo Ellen Paschall conceded that the incident would not have occurred if a teacher had been at the pool.
Thus, there is evidence that the jumping which occurred on the day Huitt was injured was not an isolated event, that the school knew Huitt had been specifically enticed to jump from the balcony, and that the school *181 was at least aware of possible balcony jumping. Further, there is evidence that just prior to the injury, Jo Ellen Paschall suspected that her students were balcony jumping and warned students against jumping. We find that this evidence demonstrates that Paschall perceived the risk to the students, even though she had never seen anyone jump.
The facts further show that Jo Ellen Paschall left the pool area after warning the students not to jump, and that Mark Paschall remained in the school office where he had no view of the pool. There is evidence, of course, that Jo Ellen Paschall warned the students not to jump. Nonetheless, we find the evidence factually and legally sufficient to support the jury's implicit finding that the school failed to adequately supervise the students in the pool, and that this lack of supervision caused Huitt's injuries.
The school also argues that because the evidence shows that Huitt willingly climbed the fire escape to jump, it is absolved of liability. We disagree. It is not uncommon for children of Huitt's age to willingly or intentionally engage in conduct that, if left unsupervised, would be harmful. It is for this reason that the school has a duty to reasonably supervise its students.
The school contends further that the trial court erred by not submitting the case on a premises liability theory. We disagree. If negligent activity is raised by the evidence, general negligence instructions are proper. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Texas Dept. of Transportation v. Ramming, 861 S.W.2d 460, 464-65 (Tex.App.Houston [14th Dist.] 1993, writ denied). Huitt's theory of recovery was that his injury occurred because of the school's contemporaneous failure to supervise the pool. This failure to supervise is a negligent activity theory, not a premises liability theory, and so the trial court correctly refused to submit the case on a premises liability theory. Points one and two are overruled.
By point three, the school claims the trial court erred by denying its requested special issue on new and independent cause. Submission of questions to the jury is reviewed under an abuse of discretion standard. Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 832 (Tex.App.El Paso 1993, writ denied). The trial court, however, should not submit inferential rebuttal issues. TEX.R. CIV. P. 277; Perez v. Weingarten Realty Investors, 881 S.W.2d 490, 495-96 (Tex.App.San Antonio 1994, writ denied). The school's requested special issue asked:
Do you find from a preponderance of the evidence that the actions of Marc Huitt, Ben Lyford, Charles Blakey or Eric Booth were new and independent causes of Marc Huitt's injuries as relating to the acts of University Preparatory School?
This question inferentially rebuts the general negligence question and, therefore, was properly denied.[1]Orkin Exterminating Co. v. Davis, 620 S.W.2d 734, 737 (Tex.Civ. App.Dallas 1981, writ ref'd n.r.e.). Point three is overruled.
By point four the school complains that the trial court erred in applying a percentage credit instead of a dollar-for-dollar credit under § 33.012 of the comparative responsibility statute. Act of Sept. 2, 1987, 70th Leg., 1st C.S., ch. 2, § 2.07, 1987 Tex. Gen. Laws 71, 80 (amended 1995) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 33.012 (Vernon Supp.1996)).[2]
Under the statute, if a claimant settles with anyone, the court shall reduce the amount of damages to be recovered by the claimant by either a dollar-for-dollar amount or by a statutorily set percentage of the damages, at the defendant's election. § 33.012(b). An "election shall be made by any defendant filing a written election before the issues of the action are submitted to the trier of fact and, when made, shall be binding on all defendants. If no defendant makes this election or if conflicting elections are made, all defendants are considered to have elected" percentage credit. § 33.014.
*182 In the present case, Lyford filed a dollar-for-dollar election during trial. The school did not file any election. Lyford was nonsuited before the case was submitted to the jury, and so the trial court reduced damages on a percentage basis, as if no election had been made. The school contends that Lyford's election was binding on all defendants and that it should have been permitted to rely on Lyford's dollar-for-dollar election. We disagree.
Under the statute, only a "defendant" can make a binding election, and "defendant" is specifically defined in the statute. Section 33.011 provides that "in this chapter `defendant' includes any party from whom a claimant seeks recovery of damages ... at the time of the submission of the case to the trier of fact." (Emphasis ours).
In light of this definition, we conclude that Lyford was not a "defendant" within the meaning of the statute because Huitt did not seek recovery of damages from him at the time of submission of the case to the trier of fact. Because the school never filed its own election, and because no other valid election was filed, the trial court was correct in applying a percentage credit. Point four is overruled.
The trial court's judgment is affirmed.
NOTES
[1] The general negligence question asked whether the negligence of various named persons caused Huitt's injuries. Two other questions asked the jury to apportion percentages of negligence.
[2] References are to the 1987 statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1864965/ | 356 So. 2d 707 (1978)
William Larry GANTT
v.
STATE.
6 Div. 598.
Court of Criminal Appeals of Alabama.
January 24, 1978.
Rehearing Denied February 21, 1978.
*708 L. Drew Redden, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and James L. O'Kelley, Asst. Atty. Gen., for the State.
BOOKOUT, Judge.
Second degree manslaughter; sentence: twelve months hard labor.
Appellant was convicted of second degree manslaughter under an indictment charging him with the first degree murder of his wife, Jeannene Mayhall Gantt. The indictment charged that her injury was caused by being struck by the fist or feet of the appellant, "or by means otherwise unknown to the grand jury."
On July 4, 1976, both the appellant and the deceased attended a party given by friends. During the course of the party, several persons noticed that the deceased was crying. She was apparently upset because a former girl friend of her husband was also at the party. Witness Patricia Ard testified that she was talking to the appellant during the party and told him that his wife was crying, to which he replied: "She had better damn not be." Other witnesses stated that the deceased came up to the appellant later and attempted to hug him or put her arm around him, but he pushed her arm away and told her to go home. She left the party about 8:30 P.M. in her mother's car. Appellant was seen walking toward his car at about the same time. He was not seen again at the party until about two hours later. Witnesses noticed that his car had been moved during that period of time and parked in a different place. By 11:30 P.M., the appellant had become highly intoxicated, and an acquaintance drove him home. There were no witnesses other than the appellant as to what happened between the time he arrived home and the time that he carried his wife to a local hospital the next morning. The State's evidence was entirely circumstantial.
The appellant testified that when he came home after the party, he did not have *709 his keys with him, but discovered that the front door to the house was unlocked. Upon entering, he found his wife lying naked on the floor of her dressing room and apparently asleep. He stated that he put her to bed and did not realize that anything was wrong with her until the next morning when he could not awaken her.
When he discovered that his wife was unconscious on the morning of July 5, the appellant carried her to the nearest hospital, and she was then transferred by ambulance to another hospital. She never regained consciousness and died a few days later as a result of subdural hematoma, a bleeding into the brain. Her mother testified that she was very hard to awaken when asleep. The injury to her head neither fractured the skull nor broke the skin of her scalp. Investigating officers found no blood stains or any evidence of a fight, a struggle, or a break-in when they searched the home on the morning of July 5.
The crux of the defense was that the deceased had accidentally fallen and hit her head or was injured by a third party unknown to the appellant, and that the appellant had no part in producing the injuries that caused her death. The State's expert medical witness, a pathologist's assistant, testified as to the cause of death from an autopsy he performed. He stated that the injury to the head was from a blunt object and could be consistent with an injury incurred by having been struck with a fist. He likewise admitted that the injury could be consistent with any number of other forces that would fall within a description of "blunt force trauma."
A defense expert witness, a pathologist, testified that the subdural hematoma suffered by the deceased was more consistent with an injury suffered by a fall than by the head being struck by an object. He stated that an object striking the head makes a different type wound than a wound incurred by the head striking a stationary object. The pathologist stated that the instant case was a classical example of an injury associated with a fall. However, on cross-examination, he admitted that such an injury could be consistent with someone's being struck with a fist or kicked with a foot.
Mrs. Melba Jean Mayhall, mother of the deceased, testified that the appellant called her on the morning of July 5 and stated that the deceased was in the hospital in intensive care. She stated that the appellant told her over the telephone that he had come home the night before and had found the deceased beaten up and had brought her to the hospital. The appellant again talked to Mrs. Mayhall after she had come to the hospital to see her daughter. She stated:
"Well, he explained to me that he had come home and Jeanine was lying in the floor in the middle bedroom where she always dressed and that he thought she was lying in the front of the vent trying to get some cool air was what he thought; that he didn't know at the time that anything was wrong, and he picked her up and put her to bed.
* * * * * *
"Well, he told me he should have, you know, he said, `I should have left the party and gone home with Jeanine. When I picked her up and put her in bed I was intoxicated and did not realize that anything was wrong.'"
Billie Brunner, a receptionist at the East End Hospital Emergency Room, testified that the appellant brought the deceased to the emergency room for treatment around 8:30 A.M. on July 5. She stated that the patient was not breathing, but did have a pulse at the time. Hospital personnel put the patient on a "breathing machine," and in a short time transferred her by ambulance to St. Vincent's Hospital for further treatment. Mrs. Brunner testified as to the account the appellant gave her of the injuries to his wife:
"A. I asked him what happened. I said, `What happened to her?' And he said, `Well, she's been beaten up.' I said, `How do you know she's been beaten up?' And he said, `Well, I just took it for granted she was beaten up.'
* * * * * *
*710 "A. . . . He said, `Well, we both went to a party last night and when we comewe went together, but we come home at different times.' And he said, `When I got home I found her on the floor naked. Someone had broken into the house and beaten her up.' He said, `I thought she would be better by morning and she was not, so I decided I better bring her down here and get ya'll to see about her.
* * * * * *
"A. He walked up to me and he said, `You don't have to call the police.'
"Q. What did you say at that time?
"A. I don't know. I said, `We do have to call the police. We have to do that on all accidents and anything that happens like that.' And I might have told him that I did. But I know we do do that. He just made the statement to me, `You don't have to call the police.'"
William Dale Leatherwood, a Birmingham police officer, testified that he interviewed the appellant at the East End Hospital on the morning of July 5. He said the appellant told him that, upon arriving home around midnight the previous night, he found his wife lying nude on the living room floor, that he thought she had too much to drink at the party, and he put her to bed. Appellant told the officer that he was unable to awaken his wife the next morning, so he took her to the hospital. Appellant did not mention a beating, nor did he mention that his wife was lying in front of an air vent.
The defense filed a motion to exclude the State's evidence at the end of the State's case in chief, and also filed a motion for a new trial after judgment, both of which were overruled. In overruling the motion to exclude the State's evidence, the trial judge stated that in cases of a mysterious death, or where there were no witnesses to the death, then the appellant giving different accounts of what happened would be sufficient to present the case to the jury, citing Gardner v. State, 40 Ala.App. 276, 111 So. 2d 916 (1959). This court in Gardner stated:
"Every homicide is presumed unlawful unless expressly excused or justified by law. A homicide being shown, it is incumbent upon the defendant to show the circumstances in mitigation, excuse, or justification, unless shown by the evidence produced against him. The degree of mitigation, the validity of the excuse, or justification, are for the jury. Champion v. State, 35 Ala.App. 7, 44 So. 2d 616.
"If for no other reason, the appellant's varied, and varying accounts of the shooting would make this a question for the jury."
The instant case differs from Gardner. Here, the victim was found unconscious, and the injury could have been caused by an accidental fall on her part, or by being hit or kicked by her husband, or by any number of other means. In Gardner, supra, the deceased was shot with a gun. The appellant there told police that, while he and deceased were standing on a street, a car drove by and someone shot the deceased from the car. The next day he told police that he had heard noises in the back of a store and had fired through a rear door and had hit the deceased. Still later he gave an account of the shooting as happening during a scuffle between him and the deceased, in which his gun had accidentally discharged.
In the instant case, there is no great discrepancy between the account given by the appellant to either his mother-in-law, to the hospital receptionist, or to Officer Leatherwood. In setting out the facts above, we have written them in the strongest light favorable to the State, and yet the discrepancies in the appellant's account of what transpired fall way short of the discrepancies in the stories given by the defendant in Gardner, supra. Appellant's assumption that his wife had been beaten was not unreasonable as she had the appearance of having what is commonly referred to as two "black eyes." That condition, according to medical testimony, results from blood accumulating in the soft tissue under the eyes which is common in similar concussion type injuries to the head. Likewise, appellant *711 never admitted that he in any way hit or beat his wife, whereas in Gardner, the defendant in two of his three accounts admitted firing the fatal shot, but sought to excuse his actions.
It is true that every killing, or homicide, is presumed unlawful unless expressly excused or justified by law. However, every death is not presumed unlawful. There is a great difference between a death which is apparently the result of foul play, or the use of a deadly weapon, and one which could have been caused by a pure accident, the means of which are unknown.
The only case of any significant similarity to the instant fact situation which we have found is McMurtrey v. State, 39 Ala.App. 319, 101 So. 2d 88 (1957), cert. denied 267 Ala. 259, 101 So. 2d 93. In McMurtrey, this court stated:
"The evidence of State's witness Sowell tended to show that the deceased came to his death as a result of blows inflicted by a blunt instrument, or a fist. Further evidence by the State tends to show that this appellant was the only person with deceased during the time said blows could have been inflicted. A homicide being shown, it was incumbent upon the appellant to prove circumstances in mitigation, excuse, or justification, unless shown by the evidence produced against him. The degree of mitigation, the validity of the excuse or justification are questions for the jury. Champion v. State, 35 Ala.App. 7, 44 So. 616." (Emphasis supplied.)
McMurtrey also differs from the instant fact situation in that the instant appellant was not the only person who could have inflicted the blow. From the evidence given by both medical experts presented by the State and the defense, the means of the appellant's injury were just as likely to have been from an accidental fall as from being hit by a fist or other blunt object. While there was no evidence of a struggle or a break-in at the residence, there was evidence that the deceased was alone for a long period of time until discovered unconscious by her husband. The appellant's testimony as to these events cannot be disregarded simply because he was the defendant in the case.
We do not read McMurtrey or Gardner, supra, to mean that any person finding a fatally injured person or a dead body is presumed to have caused the resulting homicide, thereby shifting the burden to that person to prove their innocence, or at least "circumstances in mitigation, excuse, or justification."
The only hint of foul play in the instant case comes from speculative answers given by the two medical experts, to hypothetical questions propounded to them, to the effect that the injuries could be consistent with being hit by a fist. The direct medical testimony was much more persuasive that the injury most likely resulted from a fall. Although this issue would normally be decided by a jury, the State must show some connection between the appellant and the injury before a jury may find him guilty of homicide in any degree. The mere fact that the appellant was rude to his wife earlier in the evening at the party certainly does not connect him with the injuries she sustained. The only evidence as to the condition of the deceased when her injury was first discovered comes from the appellant. In no account given by him to any witness does he admit that he harmed his wife in any way. It is only by speculation that a jury could connect the appellant with the injuries to his wife.
As a general proposition, circumstantial evidence is given the same weight as direct evidence, so long as it points to the accused as the guilty party. Locke v. State, Ala.Cr.App., 338 So. 2d 488 (1976); Lark v. State, Ala.Cr.App., 348 So. 2d 539 (1977). A conviction may be had on circumstantial evidence so long as that evidence is so strong and cogent as to show the defendant's guilt to a moral certainty. Tanner v. State, 291 Ala. 70, 277 So. 2d 885 (1973); Hollenquest v. State, 290 Ala. 146, 274 So. 2d 613 (1973). Furthermore, if circumstantial evidence fairly permits an inference consistent with innocence, it will not support a conviction. Cooper v. State, 235 Ala. 523, *712 180 So. 102 (1938); Carr v. State, 28 Ala.App. 466, 187 So. 252 (1939). There must be substantial evidence to prove all elements of the charge against a defendant, Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933), and it is a violation of due process to convict and punish a person without any evidence at all of his guilt, Clemons v. City of Birmingham, 277 Ala. 447, 171 So. 2d 456 (1965).
While appellate courts do not normally weigh or evaluate evidence presented to a jury, such a task becomes necessary when the weight and sufficiency of the evidence is properly challenged in the trial court below. Here, by motion to exclude the State's evidence, by request for the affirmative charge, and by motion for a new trial, the appellant properly presented that issue to the trial court. By reviewing the trial court's ruling thereon, we necessarily evaluate the weight and sufficiency of the evidence. After careful review, we conclude that the evidence presented by the State was insufficient to support the verdict.
We think the case can be summed up by quoting from our Supreme Court on the proposition of circumstantial evidence in Ex parte Acree, 63 Ala. 234 (1879):
". . . Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires. . . ."
Reversed and Remanded.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2502690/ | 720 S.E.2d 28 (2011)
IN RE J.B.
No. COA11-504.
Court of Appeals of North Carolina.
Filed December 6, 2011.
Case Reported Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265350/ | 422 Pa. Superior Ct. 255 (1993)
619 A.2d 343
Kelce MOSLEY, James M. Rizor, Lloyd A. Rohanna, Stephen C. Love and Robert Elliott, Individuals, Appellants,
v.
OBSERVER PUBLISHING COMPANY, A Corporation, and David F. Pollock, Appellees.
Superior Court of Pennsylvania.
Argued June 4, 1992.
Filed January 19, 1993.
*256 Joseph J. Hinchliffe, Philadelphia, for appellants.
David F. Pollock, Dist. Atty., Waynesburg, appellee, in proper.
Before McEWEN, TAMILIA and BROSKY, JJ.
McEWEN, Judge.
This appeal has been taken from an order which (1) granted the preliminary objections[1] in the nature of a demurrer filed by David F. Pollock, the Greene County District Attorney (hereinafter appellee), and (2) dismissed appellee as a defendant in the defamation action instituted by Kelce Mosley, James M. Rizor, Lloyd A. Rohanna, Stephen C. Love and Robert Elliot (hereinafter appellants) against appellee and Observer Publishing Company, publisher of the Observer-Reporter, a daily newspaper circulated in Greene and Washington Counties. We affirm.
Appellants have in their brief set forth the factual history underlying this appeal:
Plaintiff-Appellants Mosley, et al, hold or held the offices of the county commissioners, county treasurer and county *257 administrator of Greene County. Defendant-appellee Pollock is the district attorney of Greene County. The Observer Publishing Company is owner of the Observer-Reporter, a newspaper, and it is a defendant in this action. However, the publishing company is not a party to this appeal.
The communications giving rise to this case are epitomized by the relevant headlines in the Observer-Reporter reading: "F.B.I., D.A. Probe Allegations of Investment Kick Back," "County is Being Investigated for Treasury Bond Transactions," and "Controller: Commissioners Traded Bonds After Warning."
On June 1, 1990, the Observer-Reporter published an article by Bob Neibala headlined, "F.B.I./DA Probe Allegations of Investment Kickbacks." The article states, inter alia, that the Federal Bureau of Investigation and the District Attorney were working together to investigate allegations that "Greene County officials" received kickbacks from promoters of investments made with Greene County funds. The article indicates that the sources for the article were (1) an interview of defendant Pollock, (2) a search warrant sought by and predicated on information provided by defendant Pollock, and (3) an audit of county funds prepared by M.J. Milinovich, C.P.A. If the conduct of plaintiffs had been as described in the articles, plaintiffs would be subject to criminal prosecution for personally profiting or benefiting from the illegal investment of public funds.
The standard of review which we apply to a challenge to an order which sustains preliminary objections in the nature of a demurrer was set forth by our Supreme Court in Allegheny County v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985):
A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970).
*258 Since the sustaining of a demurrer results in a denial of the pleader's claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra [436 Pa.] at 291, 259 A.2d at 449.
Appellants rely for the claim against the district attorney upon the search warrant[2] and upon the statement of appellee recounted in the Observer-Reporter as follows:
Our office did some legwork for the Federal Bureau of Investigation for obtaining important records in order to determine if certain investment activities are above board. We're acting with the FBI, but it's really too soon for our office to comment.
Appellee urges this Court to affirm the order of the trial court because he is immune by reason of well established absolute privileges, specifically, the absolute privilege accorded to communications in a judicial proceeding and the absolute privilege accorded to high public officials.
The absolute privilege accorded judicial communications was quite succinctly described by our Supreme Court in Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971), when it stated:
All communications pertinent to any stage of judicial proceedings are accorded an absolute privilege which cannot be destroyed by abuse. . . . (citations omitted).
Thus statements by a party, a witness, counsel, or a judge cannot be the basis of a defamation action whether they *259 occur in the pleadings or in open court. Id. at 323, 275 A.2d at 56, cited in Passon v. Spritzer, 277 Pa.Super. 498, 502, 419 A.2d 1258, 1261 (1980).
Appellants do not dispute that the search warrant was a judicial communication, but contend that the application for warrant was replete with "false" statements. However, the Supreme Court in its pronouncement made clear and certain that once absolute privilege attaches, it may be neither lost nor destroyed. Thus, the application for search warrant is not a communication for which a cause of action will lie.
Similarly, the privilege accorded governmental officials[3] cloaks appellee with immunity from claims of appellants based upon his statement as District Attorney and as recited in the *260 June 1, 1990, edition of the Observer-Reporter.[4] Since the late and venerable Judge Theodore O. Spaulding so aptly addressed this question for this Court in McCormick v. Specter, 220 Pa.Super. 19, 275 A.2d 688 (1971), we need but resound his perceptive decision:
Two important contending interests are pertinent: the right of the individual to be secure in his reputation and the need *261 of society for the free performance and full disclosure of its governmental business. In Matson [v. Margiotti] supra, the Supreme Court stated: "Absolute privilege, as its name implies, is unlimited, and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements on actions motivated by malice, provided the statements are made or the actions are taken in the course of the official's duties or powers and within the scope of his authority or as it [is] sometimes expressed, within his jurisdiction." [Citations omitted.] (Emphasis in original.) 371 Pa. [188] at 193-194, 88 A.2d [892] at 895 [(1952)].
Our Supreme Court has never enunciated any test or standard to determine when a "high public official" is acting within the scope of his "official duties". Here, we find that appellee's press conference was a proper undertaking of that office on the basis that the responsible performance of the District Attorney's office warrants his informing the public of matters pending in that office. However, it must be emphasized that it is the public interest not that of the official involved which provides the rationale for the immunity. Thus, given the great potential for harm, the privilege must be limited to those statements and actions which are in fact "closely related" to the performance of those official duties. Although the difficulties in application are readily apparent, such a test at least provides some guidance for the trial court's determination of when a "high public official's" statements or actions fall within the scope of absolute privilege.
Applying the above "test" to the press conference at issue, it is clear that summary judgment was properly granted. Here, the District Attorney was involved in an ongoing investigation of appellants' business dealings with the City of Philadelphia. Although some of his comments may have been excessive, they were nonetheless "closely related" to a matter pending in his office and thus within the scope of the privilege.
*262 Thus it is that we affirm the decision of the distinguished Judge George P. Kiester to dismiss the cause of action of appellants as to the district attorney.
Order affirmed.
NOTES
[1] Pa.R.Civ.P. 1030 requires that all affirmative defenses, including the affirmative defense imposed by appellee to the instant complaint, namely, immunity from suit, be pleaded in a responsive pleading as "New Matter". Appellee, however, undertook to present the defense in preliminary objections in the nature of a demurrer, despite the quite clear restrictions of Pa.R.Civ.P. 1028 and requirement of 1030. Appellants failed to object to the form of pleading and have, therefore, waived the right to raise the procedural defect that would require appellee to proceed by answer with new matter. Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965); Bloom v. DuBois Regional Medical Center, 409 Pa.Super. 83, 597 A.2d 671 (1991).
[2] The search warrant is reproduced and attached hereto as Exhibit "A".
[3] The United States Supreme Court, in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), as it balanced the competing notions attendant the issue of official immunity, echoed with admiration the rationale of Judge Learned Hand for the principle of official immunity:
"It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.
"The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him." Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581.
Barr v. Matteo, supra, 360 U.S. at 571-72, 79 S.Ct. at 1339-40. The Supreme Court then intoned:
We are told that we should forbear from sanctioning any such rule of absolute privilege lest it open the door to wholesale oppression and abuses on the part of unscrupulous government officials. It is perhaps enough to say that fears of this sort have not been realized within the wide area of government where a judicially formulated absolute privilege of broad scope has long existed. It seems to us wholly chimerical to suggest that what hangs in the balance here is the maintenance of high standards of conduct among those in the public service. To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. And there are of course other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner. We think that we should not be deterred from establishing the rule which we announce today by any such remote forebodings.
Barr v. Matteo, supra, 360 U.S. at 576, 79 S.Ct. at 1342.
[4] The author of this Opinion is a former District Attorney whose memory and musing inspires this commentary:
It has been said that the perils of public office are many and even seem to engage in unflagging pursuit of the office holder. No single peril, of course, endangers the public, political, and personal life of the office holder as does the press. It is thus ironic that, while the press is in constant pursuit of the official, some officials pursue the press. Few pursuits are so deadly for, as one commentator observed: Meeting the press is like having lunch with a cobra, you become the main course. The prerogatives of the office of prosecutor confer enormous power upon that officer. Similarly, the rights bestowed by the constitutional fathers confer awesome power upon the press. Thus, as that commentator further observed: Even a monk would be slow to bless the union of such repositories of power, so unholy can be their alliance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264366/ | 879 F.Supp. 603 (1995)
Thomas L. DERON, Plaintiff,
v.
Louie WILKINS, M.D. and King's Daughters Hospital, Defendants.
Civ. A. No. 4:93CV-13(L)(C).
United States District Court, S.D. Mississippi, Eastern Division.
February 2, 1995.
*604 Crymes G. Pittman, Pittman, Germany, Roberts & Welsh, John G. Jones, Jackson, MS, for plaintiff.
Cary E. Bulkin, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, MS, for Louie Wilkins, M.D.
J. Robert Ramsay, Bryant, Clark, Dukes, Blakeslee, Ramsay, Hattiesburg, MS, for King's Daughters Hosp.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
Several matters are presently pending before this court for consideration, as follows: (1) plaintiff Thomas L. Deron's objections to the report and recommendation of the magistrate judge denying his motion for leave to amend his complaint; (2) defendant King's Daughters Hospital's motion for summary judgment; and (3) the motion of defendant Louie Wilkins, M.D., for partial summary judgment and to dismiss or transfer for lack of subject matter jurisdiction. The appropriate parties have filed responses and accompanying memoranda on each of the referenced motions and the court, having considered these motions, makes the following findings and conclusions.
PLAINTIFF'S OBJECTIONS TO REPORT AND RECOMMENDATION
By order dated October 21, 1994, Magistrate Judge Alfred G. Nicols, Jr. denied plaintiff's motion to amend her complaint to add Dr. Gene Hutcheson as a defendant, finding that plaintiff "could and should have *605 discovered any such claims against Dr. Hutcheson well before the conclusion of discovery, and that it would not be in the interest of justice to allow an amendment at this stage of the litigation." In the court's opinion, plaintiff has not demonstrated that the magistrate judge's ruling was either clearly erroneous or contrary to law, see Fed.R.Civ. Proc. 72(a), and therefore, the court will overrule plaintiff's objections to the report and recommendation.
THE MOTIONS FOR SUMMARY JUDGMENT
Plaintiff filed this action on February 1, 1993, alleging that both named defendants, King's Daughters Hospital (the Hospital) and Dr. Wilkins, violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and further alleging state law medical malpractice claims against Dr. Wilkins. The facts, as gleaned from the complaint and the various exhibits furnished by the parties, appear as follows.
On February 3, 1991, following an automobile accident, the plaintiff was transported to King's Daughters Hospital in Brookhaven, Mississippi, where he was seen in the emergency room and subsequently admitted by Dr. Wilkins, a general surgeon, to the Hospital's intensive care unit. He was diagnosed with a fracture of the right kidney, avulsion of the right brachial plexus with complete paralysis of the right arm, and a fractured duodenum. On February 7, Dr. Wilkins performed surgery on the plaintiff to repair a rupture or tear of the duodenum. He sutured the tear, drained the secretions and closed the surgical wound. Thereafter, plaintiff developed a reaccumulation of fluid in his abdominal cavity, for which Dr. Wilkins performed repeat surgery on February 14 to drain the fluids. Plaintiff alleges that two days later, on February 16, he began to bleed profusely from the surgical wound, and continued to bleed from the wound through February 18, when he began to bleed from the mouth as well.
Dr. Wilkins consulted with Dr. Gene Hutcheson, an internist in Brookhaven with whom he had been consulting concerning plaintiff's condition, and the two agreed that in order to avoid an emergency surgical procedure for the purpose of arresting the plaintiff's hemorrhaging, which they say they believed was the result of probable stress ulceration, the plaintiff should instead have endoscopy and fulguration by a gastroenterologist. However, because the Hospital lacked the requisite specialists on staff or the equipment to perform these procedures, Dr. Hutcheson contacted Dr. Cynthia L. Haden-Wright, a gastroenterologist on the staff of Mississippi Baptist Medical Center (MBMC) in Jackson, Mississippi, to inquire whether she would accept a transfer of the plaintiff. She agreed to do so, and arranged for her associate, Dr. Billy Long, to attend to the plaintiff upon his arrival.
Following Dr. Haden-Wright's agreement to accept plaintiff for treatment, arrangements were made to transfer him to MBMC by ambulance. In preparation for the transfer, blood transfusions were initiated intravenously and the plaintiff's wounds were cleaned and packed. Several additional units of packed red blood cells were sent in the ambulance for infusion if the need arose. At the time of transport, the plaintiff was receiving normal saline with packed red blood cells intravenously along with other intravenous medications. Oxygen, defibrillation and resuscitation equipment were on board in the ambulance if the need arose, and trained emergency medical technicians were on board to monitor and care for him during the transfer.
Plaintiff alleges that once the plaintiff arrived at MBMC, his body was permeated with severe sepsis and infection which had gone untreated by Dr. Wilkins. He states that because of his condition, he was admitted to MBMC, not by Dr. Long, the gastroenterologist, but rather by a surgeon,[1] and underwent surgery the following day. He has subsequently undergone additional surgeries *606 which have included, inter alia, the removal of his stomach. Plaintiff alleges that he is now permanently and totally disabled, and seeks to recover damages.
Plaintiff alleges state law claims against both Dr. Wilkins and the Hospital. He charges that Dr. Wilkins was negligent in failing to timely diagnose and properly treat the tear or rupture of his duodenum, and in failing to timely diagnose and treat the infection and abscess which developed as a result of the failure to timely and appropriately repair the torn duodenum. And he alleges that Dr. Wilkins was employed by the Hospital pursuant to a contractual relationship so as to render the Hospital vicariously liable to plaintiff for damages caused by Dr. Wilkins' negligence under the doctrine of respondeat superior. In addition to his state law claims, plaintiff has alleged that both Dr. Wilkins and the King's Daughters Hospital violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (EMTALA), by failing to stabilize his condition prior to transferring him to Mississippi Baptist Medical Center. It is upon this alleged violation of the EMTALA that plaintiff predicates federal question jurisdiction under 28 U.S.C. § 1331. Dr. Wilkins has moved to dismiss or for partial summary judgment, and to "transfer" this action to state court, contending that he is not a proper defendant under the EMTALA and urging, therefore, that there exists no jurisdictional basis for maintaining plaintiff's state law cause of action against him in this forum. The Hospital has also moved for summary judgment, arguing that plaintiff cannot establish that it violated the EMTALA.
In the court's opinion, Dr. Wilkins is not a proper defendant in a private civil action brought on account of an alleged improper transfer under the EMTALA. As discussed in more detail infra, the statute at issue states in pertinent part that "if an individual at a hospital has an emergency medical condition which has not been stabilized ... the hospital may not transfer the individual...." 42 U.S.C. § 1395dd(c)(1) (emphasis added). Further, the civil enforcement provision of the EMTALA permits "[a]ny individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section" to file "a civil action against the participating hospital" to recover those damages or other equitable relief. 42 U.S.C. § 1395dd(d)(2)(A) (emphasis added). Numerous courts have recognized, as does this court, that the EMTALA provides no private cause of action for recovery of damages against a physician but is instead limited to actions against participating hospitals. See, e.g., Delaney v. Cade, 986 F.2d 387, 393 (10th Cir.1993); Baber v. Hospital Corp. of America, 977 F.2d 872, 877 (4th Cir.1992); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1040 n. 1 (D.C.Cir.1991); Helton v. Phelps County Regional Med. Ctr., 817 F.Supp. 789 (E.D.Mo. 1993); Holcomb v. Monahan, 807 F.Supp. 1526, 1531 (M.D.Ala.1992); Richardson v. Southwest Mississippi Regional Med. Ctr., 794 F.Supp. 198 (S.D.Miss.1992).[2] Since it is manifest, in light of the clear terms of the statute, that Dr. Wilkins may not properly be sued for the EMTALA violation alleged by plaintiff,[3] it follows that plaintiff has not stated *607 a federal claim against Dr. Wilkins. Dr. Wilkins asks, therefore, that the court dismiss, or "transfer" plaintiff's state law cause of action against him to the Circuit Court of Lincoln County, Mississippi, where it should have been brought. However, because plaintiff has alleged a federal claim against Dr. Wilkins' co-defendant, the Hospital, the court, prior to considering the merit of Dr. Wilkins' request, will first consider the Hospital's motion for summary judgment.[4]
Hospitals which execute Medicare provider agreements with the federal government pursuant to 42 U.S.C. § 1395cc are required to treat all persons who enter their emergency departments in accordance with the EMTALA. See 42 U.S.C. § 1395cc; Burditt v. United States Dept. of Health & Human Servs., 934 F.2d 1362, 1366 (5th Cir.1991). The EMTALA imposes upon such hospitals certain responsibilities toward persons seeking emergency care from the hospital. First, the hospital must screen such a person to determine whether he has an "emergency medical condition" within EMTALA's definition of that phrase. If he is determined to suffer from an emergency medical condition, then the hospital must provide either
(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.
42 U.S.C. § 1395dd(b)(1). However, the hospital may not transfer any individual suffering from an emergency medical condition if he has not first been "stabilized" within the meaning of the EMTALA, unless certain conditions are satisfied.[5] 42 U.S.C. § 1395dd(c); Green v. Touro Infirmary, 992 F.2d 537 (5th Cir.1993).
The plaintiff alleges that his transfer violated the EMTALA because his emergency medical condition was not "stabilized" when he was transferred from the Hospital to MBMC, and because the Hospital did not comply with the requisites for the transfer of a patient whose condition has not been stabilized. The Hospital does not dispute that the plaintiff was suffering from an "emergency medical condition" at the time he was transferred.[6] It contends, however, the plaintiff's *608 condition was "stabilized" when he was transferred so that the transfer was not in violation of the EMTALA.
The EMTALA provides that an emergency medical condition is "stabilized" if "no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility." 42 U.S.C. § 1395dd(e)(3)(B). The Hospital has provided evidence in the form of medical records, deposition testimony and affidavits to establish that the plaintiff's condition was "stabilized" according to this definition at the time of his transfer. There is presented, for example, an affidavit of Dr. Hutcheson, wherein he states both that "at the time of Mr. Deron's transfer he had been stabilized such that it was not reasonably probable that there would occur a material deterioration in Mr. Deron's condition during or as a result of the transfer," and that the ambulance run report and records of MBMC's emergency room "do not demonstrate any material deterioration in Mr. Deron's condition during the transfer of Mr. Deron to the Mississippi Baptist Medical Center." Similarly, Dr. Haden-Wright has provided an affidavit in which she states, based on her review of King's Daughters Hospital records and the ambulance record, as well as the records of MBMC's emergency room, "at the time of Mr. Deron's transfer, he had in fact been stabilized such that it was not reasonably probable that there would occur a material deterioration in Mr. Deron's condition during transfer." Dr. Haden-Wright has further opined that "these records do not demonstrate any material deterioration in Mr. Deron's condition during the transfer to Mississippi Baptist Medical Center." Plaintiff, though, claims that he was not "stabilized," relying exclusively upon deposition testimony by Dr. Hutcheson that at the time of the transfer, plaintiff's condition was potentially life threatening in that there existed a risk that his bleeding could worsen during the transfer, causing him to bleed to death. Dr. Hutcheson testified in this regard as follows:
Q. All right. What were the risks associated with transferring Mr. Deron from King's Daughters Hospital to the Mississippi Baptist Medical Center?
...
A. The risk of transferring any emergency patients: He could have died during the transfer.
Q. All right. What other risks are there to emergency patients during transfer, besides death?
A. I mean, in this particular patient, the things you would be most concerned about would be worsening bleeding and exsanguination.
Q. Now, what is exsanguination?
A. Bleeding to death.
Q. Now, in your opinion, Mr. Deron was subject to this risk with his transfer.
A. That was certainly a consideration, and we felt like we had stabilized him to the point that the risk was outweighed by the potential benefit of a curative procedure.
Q. If I understood your last answer correctly, you felt like you had done all that you could to lower that risk, but it still existed.
A. Certainly.
...
Q. Was Mr. Deron's condition potentially life threatening at the time he left King's Daughters Hospital?
A. Yes.
Q. What conditions did Mr. Deron have at time [sic] of transfer which were potentially life threatening?
A. He had active bleeding, he had active infection.
Though plaintiff argues that Dr. Hutcheson's testimony conclusively establishes that his condition was not stabilized when he was transferred, the court must conclude otherwise.[7] Proof that there were risks involved *609 in the transfer, or that a "material deterioration of the condition" was possible as a result of or during the transfer will not suffice to demonstrate that the condition was not stabilized for purposes of transfer under EMTALA. Rather, in accordance with EMTALA's plain definition of the term, an individual's emergency medical condition is not "stabilized" only if "a material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer." 42 U.S.C. § 1395dd(e)(3)(B) (emphasis added).
In a similar case, Brooker v. Desert Hospital Corp., 947 F.2d 412 (9th Cir.1991), a plaintiff who was "clinically stable," but in overall critical condition and in need of surgical intervention, was transferred to another hospital where she could undergo bypass surgery. In concluding that the transfer did not violate the EMTALA, the Ninth Circuit observed as follows:
"Brooker was in critical condition the entire time she was at Desert Hospital. A patient may be in critical condition, however, and still be `stabilized' under the terms of the Act.
The Act did not require Desert Hospital to alleviate completely Brooker's emergency condition. The Act did not require the hospital to perform angioplasty or bypass surgery within a specified time period. Rather, the Act required the hospital to provide Brooker with appropriate medical screening and stabilizing treatment and to refrain from transferring her unless she was `stabilized.'"
Id. at 415. Because there was "nothing in the record to indicate that it was likely that the transfer would have any effect upon the plaintiff's condition," the court affirmed the district court's grant of summary judgment. Likewise, because plaintiff here has provided no proof, from a medical expert or otherwise, that any deterioration in his condition was likely to occur either during or as a result of the transfer, plaintiff's cause of action against the Hospital for a violation of the EMTALA cannot succeed. See Green v. Touro Infirmary, 992 F.2d 537, 539 (5th Cir.1993) (hospital's responsibility under the statute ends when it has stabilized the individual's condition).
Because the court has concluded that there exists no viable federal claim against either of the defendants, in the exercise of its discretion, the court concludes that the remaining state law claim should be dismissed without prejudice.[8]See 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction over a claim if it has dismissed all claims over which it has original jurisdiction).[9]
CONCLUSION
Based on the foregoing, it is ordered that plaintiff's objection to the report and recommendation of the magistrate judge is overruled. It is further ordered that the motion by defendant King's Daughters Hospital for summary judgment, and the separate motion by defendant Dr. Louie Wilkins to dismiss or for partial summary judgment are granted.
*610 A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure.
ORDERED.
NOTES
[1] Though it is not altogether clear from the record, it appears that Dr. Long, after examining the plaintiff, concluded that his condition required surgical intervention and therefore called in a surgeon to treat the plaintiff rather than performing the endoscopy and fulguration for which plaintiff had been transferred.
[2] Citing Burditt v. United States Department of Health & Human Services, 934 F.2d 1362 (5th Cir.1991), plaintiff argues that the Fifth Circuit has found § 1395dd applicable to physicians as well as hospitals. Plaintiff's reliance on Burditt is misplaced. There, the court held only that a hospital may be vicariously liable for a physician's violations of EMTALA. The court did not hold that a physician may be held liable in a civil suit for violating the EMTALA.
[3] The plaintiff alleged in his complaint that Dr. Wilkins, in violation of EMTALA, 42 U.S.C. § 1395dd(d)(1)(B)(ii), misrepresented the plaintiff's condition to Dr. Cynthia Haden-Wright, and further misrepresented to her that a surgeon in Jackson had agreed to accept the plaintiff on transfer. This allegation, if true, might warrant the imposition of a civil money penalty against him under 42 U.S.C. § 1395dd(d)(1)(B)(ii). However, it would not render him subject to civil suit. In any event, though, there is no evidence to support this allegation. In fact, the evidence is uncontroverted that Dr. Wilkins never spoke with, or in any way communicated with Dr. Haden-Wright about the plaintiff, his condition or the transfer. Rather, Dr. Hutcheson spoke with Dr. Haden-Wright regarding the plaintiff and requested that Dr. Haden-Wright accept him for treatment. Indeed, it is apparently that fact which led the plaintiff to request to amend his complaint to add Dr. Hutcheson as a defendant. The court has concluded that the magistrate judge properly denied that request.
[4] Dr. Wilkins' motion assumes that this court lacks subject matter jurisdiction over the state law claim against him since plaintiff has not stated a cognizable federal claim against him. However, in accordance with 28 U.S.C. § 1367(a), this court may exercise supplemental jurisdiction over claims that "involve the joinder or intervention of additional parties." In other words, the existence of a viable federal claim against the Hospital could support the exercise of jurisdiction over a claim against Dr. Wilkins that lacks an independent federal jurisdictional basis.
[5] EMTALA explicitly defines circumstances in which a hospital may effect a transfer of an individual with an emergency medical condition who has not been "stabilized." Such a transfer must be "an appropriate transfer," and (1) the individual, or one who is legally responsible to act for him, requests a transfer in writing after being informed of the hospital's obligations under EMTALA; or (2) a physician, or other "qualified medical person" if a physician is unavailable, certifies in writing that "the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual ... from effecting the transfer." 42 U.S.C. § 1395dd(c)(1). An "appropriate transfer" is defined as one in which the transferring hospital "provides the medical treatment within its capacity which minimizes the risks to the individual's health," and in which the receiving hospital "has available space and qualified personnel" to treat the patient and has agreed to accept transfer of the individual and to provide appropriate medical treatment. An "appropriate transfer" also requires that the transferring hospital send to the receiving hospital all medical records related to the emergency medical condition, and that the transfer be effected through qualified personnel and transportation equipment. 42 U.S.C. § 1395dd(c)(2).
The plaintiff argues that many of these requisites were omitted in connection with his transfer to MBMC. However, since these conditions apply only to transfers of patients who are not "stabilized," then plaintiff's contentions are of no consequence if the court concludes that he was "stabilized" at the time of the transfer.
[6] The EMTALA defines "emergency medical condition" as follows:
(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in
(i) placing the health of the individual ... in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part....
[7] The plaintiff also relies on testimony by Dr. Hutcheson that the transfer of plaintiff was required to be certified under EMTALA, see supra note 5, as evidence that the transfer violated EMTALA. However, it is clear, considering Dr. Hutcheson's testimony in context, that he believed that all transfers of patients from the emergency department required EMTALA certification. Dr. Hutcheson's erroneous interpretation or belief as to the law cannot provide a basis for imposing liability against the Hospital.
[8] The plaintiff alleged that the Hospital was vicariously liable under state law for the negligence of Dr. Wilkins since Dr. Wilkins "was acting in the course and scope of his employment or pursuant to a contractual relationship with Defendant King's Daughters Hospital." However, in interrogatory responses, Dr. Wilkins indicated that he was not an employee of the Hospital but rather was a staff physician with surgical privileges. The Mississippi Supreme Court has held that a hospital may be vicariously liable for damages caused by a physician who is employed by or is under a contractual relationship with the hospital, but is not vicariously liable for the acts of physicians who merely have staff privileges. See Mississippi Ethics Comm. v. Aseme, 583 So.2d 955, 959-60 (Miss.1991). In view of defendants' uncontroverted evidence that Dr. Wilkins merely had staff privileges, there would appear to be no legal basis for imposing liability against the Hospital for his acts and/or omissions.
[9] The court notes that in accordance with 28 U.S.C. § 1367(d), plaintiff, who appears to have filed this suit just two days prior to expiration of the applicable limitations period, has at least thirty days from the date of dismissal within which to file suit against Dr. Wilkins in state court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345699/ | 330 S.E.2d 33 (1985)
In re Donald Ray GARNER, a Minor Child.
In re Bobby DeWayne GARNER, a Minor Child.
No. 8419DC782.
Court of Appeals of North Carolina.
June 4, 1985.
*34 Gavin & Pugh by W. Ed Gavin, Asheboro, for petitioner-appellee.
Bell & Browne, P.A. by Robert E. Wilhoit, Asheboro, as Guardian Ad Litem.
Pierre Oldham, Asheboro, for respondent-appellant.
PARKER, Judge.
In her sole assignment of error, respondent asserts that the order terminating her parental rights is not supported by the findings of fact and conclusions of law.
General Statute 7A-289.32 provides that a court may terminate parental rights on seven different grounds, and a finding of any one of those grounds will authorize a court to terminate the parent's rights. G.S. 7A-289.31(a); In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982). All such findings must, however, be based on "clear, cogent, and convincing evidence." G.S. 7A-289.30(e). The court in this case concluded that two grounds for termination existed. These were under subsection (2) and (4) which provide in part:
(2) The parent has ... neglected the child. The child shall be deemed to be... neglected if the court finds the child to be ... a neglected child within the meaning of G.S. 7A-517(21).
....
(4) The child has been placed in the custody of a county department of social services ... and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child.
G.S. 7A-517(21) provides in part:
Neglected Juvenile.A juvenile who does not receive proper care, supervision, or discipline from his parent ... or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare ....
In finding of fact No. 6, the court found "[t]hat each of the children has heretofore been adjudicated by Randolph District Court as being a neglected child." This finding was the sole finding of fact on the ground of neglect. The court then concluded as law that "Donald Ray Garner and Bobby DeWayne Garner are neglected children ...."
*35 Our Supreme Court, in In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984), addressed this identical issue stating that "termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist." 311 N.C. at 714, 319 S.E.2d at 231-32. The Court stated:
We hold that evidence of neglect by a parent prior to losing custody of a childincluding an adjudication of such neglectis admissible in subsequent proceedings to terminate parental rights.
....
The respondent appellant next contends in support of this assignment of error that the trial court erroneously treated the prior adjudication of neglect standing alone as binding upon it and as determinative on the issue of neglect at the time of the termination proceeding. The respondent's contention in this regard has merit. 311 N.C. at 715, 319 S.E.2d at 231-232.
As in Ballard, the trial court in the instant case treated the prior adjudication as determinative on the issue of neglect at the time of the termination proceeding. This was error. The court was certainly entitled to consider the prior adjudication in the fact finding process, but Ballard requires new findings of fact based on "changed conditions ... in light of the history of neglect by the parents and the probability of a repetition of neglect." 311 N.C. at 714, 319 S.E.2d at 231.
Only one ground needs to be proven to uphold the termination order. G.S. 7A-289.31(a). Therefore, we must examine whether respondent failed to pay a reasonable portion of the cost of the care for the children.
The facts are undisputed that respondent had not contributed anything toward the support of her children since they were removed from her in 1981, and that she was incarcerated at the time of the termination hearing for writing numerous worthless checks. How long respondent had been incarcerated prior to the hearing is not clear from the record or termination order. The court, in finding of fact No. 13, found:
That the mother for a continuous period of six months next preceding the filing of the Petitions to terminate parental rights has failed to pay a reasonable portion of the cost of care for the children; indeed, the mother has not paid any amount toward the support of the two children since they have been in the custody of the Randolph County Department of Social Services.
The relevant time period under the statute is "for a continuous period of six months next preceding the filing of the petition." G.S. 7A-289.32(4). Respondent contends that she could not pay any support during some portion of this relevant time period because of her incarceration.
In determining what is a "reasonable portion," the parent's ability to pay is the controlling factor. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981). In Clark, the Court stated:
A parent is required to pay that portion of the cost of foster care for the child that is fair, just and equitable based upon the parent's ability or means to pay. What is within a parent's "ability" to pay or what is within the "means" of a parent to pay is a difficult standard which requires great flexibility in its application.
In the case sub judice, respondent paid nothing for the children's care over the relevant time period. This Court has previously held that "nonpayment would constitute a failure to pay a `reasonable portion' if and only if respondent were able to pay some amount greater than zero." In re Bradley, 57 N.C.App. 475, 479, 291 S.E.2d 800, 802 (1982).
In Bradley, the respondent-father was incarcerated and did not make any payments to support his children. Mr. Bradley was participating in the work-release program, but lost the privilege when he returned from work in an intoxicated condition. On appeal respondent argued the unreasonableness of requiring a prisoner to *36 provide financial support while incarcerated. Rejecting this argument, the Court in Bradley enunciated the following rule:
Where, as here, the parent had an opportunity to provide for some portion of the cost of care of the child, and forfeits that opportunity by his or her own misconduct, such parent will not be heard to assert that he or she has no ability or means to contribute to the child's care and is therefore excused from contributing any amount. 57 N.C. at 479, 291 S.E.2d at 802-03.
The rule in Bradley was not a blanket statement that incarcerated parents can never assert an inability to provide support. Such a rule would be in conflict with the holding in Ballard that "[a] finding that a parent has ability to pay support is essential to termination for nonsupport on this ground." 311 N.C. at 716-17, 319 S.E.2d at 233. The ruling that respondent Bradley would not be heard to assert his inability to pay was based on his misconduct in returning intoxicated from his work release job which would have allowed him the opportunity to earn money to provide for his children, not on his mere incarceration. To conclude otherwise would produce extremely harsh results.
Under the holding in Bradley, the trial court should have made a specific finding that respondent was able to pay some amount greater than zero during the relevant time period. This Court has previously stated, in a termination case in which the respondent contended she was unable to pay any of the child care costs, that "the better practice would have been for the trial court to have made separate findings as to her failure to pay." In re Allen, 58 N.C.App. 322, 327-28, 293 S.E.2d 607, 611 (1982).
Pursuant to the foregoing authorities, we hold that the court erred (i) in concluding that the children were neglected based solely on the existence of the prior adjudication of neglect, and (ii) in failing to make adequate findings as to respondent's ability to pay some portion of the cost of foster care. Under G.S. 7A-289.31(a) if either ground had been properly found, the lower court's ruling could be sustained, but because both grounds were erroneously decided, the case must be remanded for findings as to whether or not the children are neglected and as to whether the respondent was "able to pay some amount greater than zero" during the relevant time period.
Reversed and remanded.
WEBB and BECTON, JJ., concur.
BECTON, Judge, concurring in the result.
Notwithstanding the views I expressed in my dissent In re Bradley, 57 N.C.App. at 479-481, 291 S.E.2d at 803-804, I believe that a remand in this case is proper. I, therefore, concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345703/ | 174 Ga. App. 615 (1985)
330 S.E.2d 812
WOOLBRIGHT
v.
HENSLEY et al.
69857.
Court of Appeals of Georgia.
Decided April 22, 1985.
Douglas E. Cobb, for appellant.
Charles D. Read, for appellees.
BENHAM, Judge.
In a suit brought by appellant seeking damages for the action of appellees in building a fence which obstructed access to appellant's property, appellees filed a counterclaim, alleging in essence that appellant's suit had no merit and was brought for the purpose of harassing them and causing them anguish, worry, anxiety, and expense. We granted appellant's application for interlocutory review of the trial court's order denying appellant's motion for judgment on the pleadings.
1. The trial court's order denying appellant's motion for judgment on the pleadings recited that appellees' counterclaim stated a cause of action, but the order does not identify that cause of action; it merely cited Ga. Power Co. v. Johnson, 155 Ga. App. 862 (274 SE2d 17) (1980). We agree with appellant that Johnson does not support the trial court's decision. Appellees' counterclaim accuses appellant of no conduct more egregious than filing a lawsuit against them. That basis for an action for intentional infliction of emotional distress was specifically rejected in Johnson. It follows that the trial court's order in this case is not sustainable on that theory.
2. Our review of the pleadings in this case does not convince us that appellees' counterclaim should have withstood appellant's motion for judgment on the pleadings for any other reason. A counterclaim for malicious use of process is inappropriate because one of the elements necessary in such an action is a termination of the action favorable to the complainant, a situation which cannot exist in the context of a counterclaim. See Lane Co. v. Taylor, 174 Ga. App. 356 (330 SE2d 112) (1985). Although there are circumstances in which a counterclaim for malicious abuse of process may be viable (id.), allegations that a plaintiff wrongfully brought and continued a suit will not, without more, state a claim for malicious abuse of process. Medoc Corp. v. Keel, 152 Ga. App. 684 (263 SE2d 543) (1979).
Since, as appellees point out, there is nothing in the record of this case other than the pleadings and since the counterclaim does not state a claim for intentional infliction of emotional distress or for malicious abuse or use of process, the trial court's denial of appellant's motion for judgment on the pleadings with regard to appellees' counterclaim was error.
3. Appellant has also enumerated as error the trial court's denial of his motion to strike portions of appellees' answer on the ground *616 that they are immaterial and impertinent because they address issues covered in the trial court's earlier grant of summary judgment to appellant on the issue of liability. That position is without merit since the record does not contain duly certified copies of the order mentioned in appellant's res judicata argument. Boozer v. Higdon, 252 Ga. 276 (1) (313 SE2d 100) (1984).
Furthermore, as appellant admits, his motion to strike was not timely under OCGA § 9-11-12 (f). That being so, the trial court did not abuse its discretion in denying the motion to strike. Potpourri of Merrick v. Gay Gibson, 132 Ga. App. 565 (1) (208 SE2d 579) (1974).
Judgment reversed in part and affirmed in part. Banke, C. J., and McMurray, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/709872/ | 72 F.3d 133
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Horace J. RIVERS, Appellant,v.NORTHWEST AIRLINES, INC., a Minnesota corporation, Appellee.
United States Court of Appeals, Eighth Circuit.
Submitted: December 15, 1995.Filed: December 21, 1995.
Appeal from the United States District Court for the Eastern District of Missouri.
Before FAGG, GARTH,* and WOLLMAN, Circuit Judges.
PER CURIAM.
1
Horace J. Rivers appeals the district court's grant of summary judgment to Northwest Airlines, Inc. on Rivers's age discrimination claim. Having reviewed the record and the parties' briefs, we conclude Rivers is not entitled to relief. We thus affirm the district court for the reason Rivers was neither actually nor constructively discharged from his employment. See 8th Cir. R. 47B.
*
The HONORABLE LEONARD I. GARTH, United States Circuit Judge for the Third Circuit, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1345339/ | 487 S.E.2d 690 (1997)
226 Ga. App. 854
PARRIS
v.
The STATE.
No. A97A0927.
Court of Appeals of Georgia.
June 17, 1997.
*691 Darden & Moyers, Richard M. Darden, Savannah, Andrea S. Moyers, for appellant.
Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for Appellee.
HAROLD R. BANKE, Senior Appellate Judge.
Arthur Parris was convicted of possession of marijuana with intent to distribute, carrying a concealed weapon, and driving without a license and without proof of insurance. Parris, who was sentenced as a recidivist, challenges only the sufficiency of the evidence relating to the drug conviction.
At approximately midnight, Cpl. M.K. Nichols initiated a routine traffic stop, after he observed a Camaro with a cardboard tag which appeared to conceal a license plate. Although Parris, the driver, claimed that he had just bought the vehicle, he was unable to produce a bill of sale. After Parris admitted he had no driver's license or insurance, Nichols placed him under arrest. During a patdown search of Parris, Nichols discovered a butterfly knife with a four-inch blade. Nichols testified that when Parris exited his vehicle, he detected the odor of burnt marijuana on Parris' person. Nichols claimed that when he first approached Parris, he noticed a plastic grocery bag lying on the driver's side floorboard. Nichols testified that he considered the location of the bag to be highly unusual because it was directly at Parris' feet, near the accelerator. According to Nichols, while Parris was seated in the patrol car, as Nichols was checking the bag on the floorboard, the male front passenger inquired, "what's that?" After Parris' two passengers had been permitted to walk away, police confirmed that the grocery bag contained two bags of marijuana. Investigators were never able to ascertain the identities of the two passengers, and Parris denied knowing who they were or where they lived. A forensic chemist verified that both bags contained leafy marijuana with one bag weighing 7.9 ounces and the other weighing 3.6 ounces.
Parris' prior conviction for possession of marijuana with intent to distribute and possession of cocaine was admitted as similar transaction evidence. In the prior case, during the execution of a warrant for Parris' residence, investigators discovered on Parris' person a bag of marijuana and $510 in cash. Parris directed police to a locked suitcase in his bedroom closet. The suitcase contained six quart size ziplock bags full of marijuana, weighing three and one-half pounds, a triple beam scale, and a 250-milliliter glass beaker. In this case, Parris did not testify or call any witnesses. His primary defense was that the drugs belonged to someone else. In instructing the jury, the trial court used the pattern charge on "equal access" and charged the jury on circumstantial evidence and actual and constructive possession. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 136. No charge was given on the lesser included offense of possession. Held:
In his sole enumeration of error, Parris contends that the trial court erred in denying his motion for a directed verdict due to the insufficiency of the evidence within the meaning of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). He claims that the only evidence linking him to the contraband was mere proximity to the marijuana found on the driver's side floorboard.
In the absence of circumstances to the contrary, a presumption arises from proof of ownership and control of an automobile that the owner is in control and possession of the contraband found therein. Fears v. State, 169 Ga.App. 172, 173(1), 312 S.E.2d 174 (1983). At the time of the arrest, Parris claimed to own and obviously was in possession of the vehicle. However, the mere presence of the contraband without more than Parris' spatial proximity to it would not establish *692 Parris' constructive possession. See id.
In this case, the arresting officer detected the distinctive odor of marijuana on Parris' person. The officer testified that when he initially approached the car the drugs were located directly at Parris' feet and that the Camaro had bucket seats with a console separating the driver's side from the passenger compartment. Based on this evidence, a rational trier of fact could have found Parris guilty beyond a reasonable doubt of the crime of possession of marijuana. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789.
To support a conviction for possession of marijuana with intent to distribute, the State must prove more than mere possession. Williams v. State, 199 Ga.App. 544(1), 405 S.E.2d 539 (1991). Where, as here, a conviction hinges on circumstantial evidence, the evidence must exclude every reasonable hypothesis except guilt. OCGA § 24-4-6. Where no additional evidence of intent to distribute is offered, such as scales, drug paraphernalia, large amounts of cash, division of drugs into individual packages, or a prior conviction of possession with intent to distribute, the expert testimony is critical, and the conviction cannot be sustained without it. See James v. State, 214 Ga.App. 763, 764(1), 449 S.E.2d 126 (1994); see also Bacon v. State, 225 Ga.App. 326, 327, 483 S.E.2d 894 (1997).
In this case, the State did not present any evidence of drug paraphernalia or large amounts of cash. The State failed to offer any expert testimony that the amount of marijuana or its packaging as indicative of distribution. See James, 214 Ga.App. at 764, 449 S.E.2d 126; compare Holbrook v. State, 177 Ga.App. 318, 321(2), 339 S.E.2d 346 (1985). Nor was the State's circumstantial evidence sufficient to exclude every reasonable hypothesis except Parris' guilt, such as the credible theory that the marijuana was for Parris' personal use, especially in light of testimony that when arrested Parris exuded the odor of burnt marijuana. See Brown v. State, 260 Ga. 153, 155(1), 391 S.E.2d 108 (1990). Clearly, the jury was not authorized to infer an intent to distribute marijuana in this case from the similar transaction evidence alone. See Anderson v. State, 215 Ga.App. 426, 428(1), 451 S.E.2d 103 (1994) (physical precedent only). Moreover, notwithstanding the dearth of evidence as to the essential element of intent to distribute, the jury was not afforded the option of convicting Parris on the lesser included offense of possession of marijuana.
In the absence of any direct evidence of Parris' intent to distribute, we are constrained to reverse. OCGA § 16-13-30. Dyer v. State, 218 Ga.App. 879, 880(1), 463 S.E.2d 718 (1995). Because the evidence was sufficient to support Parris' conviction for possession of marijuana, we remand with direction that a conviction and sentence be entered for that offense. Hogan v. State, 193 Ga.App. 543(1), 388 S.E.2d 532 (1989).
Judgment vacated and case remanded with direction.
JOHNSON and BLACKBURN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345369/ | 487 S.E.2d 823 (1997)
In the Matter of Zhoma Wilina LITTLE, minor child,
v.
Tina LITTLE, Respondent,
v.
BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, and
Guardian ad litem, Petitioner.
No. COA96-1394.
Court of Appeals of North Carolina.
August 5, 1997.
*824 Charlotte A. Wade, Asheville, for petitioner-appellee Buncombe County Department of Social Services.
Michael E. Casterline, Asheville, for respondent-appellant.
LEWIS, Judge.
The only issue in this appeal from an order terminating respondent's parental rights is whether the trial court erred in not providing court appointed counsel for respondent at the hearing.
Respondent is the natural mother of Zhoma Little, born 24 October 1994. The Buncombe County Department of Social Services ("DSS") took custody of the minor child on 9 November 1994. On 20 February 1996, DSS filed a petition to terminate respondent's parental rights to the minor child. The initial summons was returned unserved. A second summons was issued and served on 9 April 1996.
At the 19 July 1996 hearing, respondent requested court appointed counsel. The trial court found that since she had not filed an answer or any other pleading and had not previously asked for an attorney, she had waived the right to court appointed counsel "by her lack of action." Respondent appeals.
On appeal, respondent makes three assignments of error. However, she does not argue the third in her brief and it is deemed abandoned. See N.C.R.App. P. 28(b)(5)(1997).
Respondent first argues that the trial court erred by not allowing her the opportunity to obtain counsel at her hearing as she requested. She argues that the trial court failed to properly follow the procedure set forth in N.C. Gen.Stat. sections 7A-289.23, 289.27 and 289.30. Since we conclude that the statutes do not provide for waiver by inaction, we agree.
We initially point out that our Court has already recognized that a "parent[`s] right to counsel in a proceeding to terminate parental rights is now guaranteed in all cases by statute" and that "[a] parent's interest in the accuracy and justice of the decision to terminate his or her parental rights is a commanding one." In re Bishop, 92 N.C.App. 662, 664, 375 S.E.2d 676, 678 (1989). With these thoughts in mind, we entertain the arguments presented by this appeal.
N.C. Gen.Stat. section 7A-289.23 states that "[t]he parent has the right to counsel and to appointed counsel in cases of indigency unless the parent waives the right." N.C. Gen.Stat. § 7A-289.23 (1995). N.C. Gen. Stat. section 7A-289.27 requires a summons issued for the purpose of terminating parental rights to include: "Notice that if they are indigent, the parents are entitled to appointed counsel. The parents may contact the clerk immediately to request counsel." N.C. Gen.Stat. § 7A-289.27(b)(3) (1995)(emphasis added). Finally, N.C. Gen.Stat. section 7A-289.30 states:
The court shall inquire whether the child's parents are present at the hearing and, if so, whether they are represented by counsel. *825 If the parents are not represented by counsel, the court shall inquire whether the parents desire counsel but are indigent. In the event that the parents desire counsel but are indigent as defined by G.S. 7A-450(a) and are unable to obtain counsel to represent them, the court shall appoint counsel to represent them.... In the event that the parents do not desire counsel and are present at the hearing, the court shall examine each parent and make findings of fact sufficient to show that the waivers were knowing and voluntary.
N.C. Gen.Stat. § 7A-289.30(a1) (1995)(emphasis added).
It is clear from reading the above statutes that the General Assembly did not intend to allow for waiver of court appointed counsel due to inaction prior to the hearing. G.S. 7A-289.30 makes it quite clear that if the parent is present at the hearing, which respondent undoubtedly was, and does not waive representation, counsel "shall" be appointed. It is irrelevant how a respondent gets to the hearing. This respondent was in jail and had made no effort to answer or contact anyone. Petitioner sent for her and had her brought into court for the hearing. If the party is present in court, waiver can only result from an examination by the trial court and a finding of knowing and voluntary waiver. This Court has previously held that the hearing must be held even in cases where a parent has failed to answer. See In re Tyner, 106 N.C.App. 480, 483, 417 S.E.2d 260, 261 (1992). Furthermore, the summons issued to respondent in this case clearly states: "Parents are entitled to have counsel appointed by the court if they cannot afford one, provided that they request such counsel at or before the time of hearing on this matter." (Emphasis added).
In the present case, there was no examination as described in G.S. 7A-289.30. Respondent was present at the hearing, requested appointed counsel, but was denied. There is no support, statutory or otherwise, for the trial court's ruling that in North Carolina the right to counsel can be waived by inaction prior to the termination hearing. This ruling was error and is certainly prejudicial. We remand this matter to the trial court for a new hearing.
Due to our resolution of this matter, we do not address respondent's remaining assignment of error.
Reversed and remanded.
WYNN and JOHN C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345373/ | 487 S.E.2d 117 (1997)
226 Ga. App. 559
EDGE
v.
The STATE.
No. A97A0393.
Court of Appeals of Georgia.
May 28, 1997.
Bruce F. Morriss, Atlanta, Daniel Shim, Tucker, for appellant.
Ralph T. Bowden, Jr., Solicitor, Charles C. Flinn, W. Cliff Howard, Assistant Solicitors, for appellee.
JOHNSON, Judge.
Bradley Edge was charged in Count 1 of an accusation with driving under the influence of alcohol to the extent that it was less safe for him to drive. See OCGA § 40-6-391(a)(1). In Count 2, he was charged with having a blood-alcohol concentration of .10 grams or more in violation of former OCGA *118 § 40-6-391(a)(4). A jury found him guilty on both counts. Edge appeals from the convictions entered on the verdict.
1. Edge contends the trial court erred in denying his motion in limine/motion to suppress the results of the intoximeter test when he was not advised of his implied consent rights contemporaneously with his arrest and when an officer other than the arresting officer read him the rights.
(a) Timing of the advice. An enforcement officer with the Georgia Department of Transportation ("DOT") stopped Edge on I-20 after observing him drive in the high occupancy vehicle ("HOV") lane without any passengers in his truck. See OCGA §§ 32-9-4(a), (b); 40-6-54. As the officer approached Edge's pickup truck, he noticed that Edge's eyes were bloodshot and he smelled of alcohol. When asked if he had been drinking, Edge responded that he had consumed two sixteen-ounce containers of beer. At the officer's request, Edge handed over his driver's license and proof of insurance and stepped out of the truck. The officer walked Edge over to a retaining wall and then went back to the patrol car where he called the Georgia State Patrol to advise them he would be out of his vehicle while he conducted field sobriety tests on a suspected drunk driver. Edge performed the horizontal gaze nystagmus ("HGN"), "walk and turn," and "one-leg stand" tests. Based on Edge's performance on these tests, the officer concluded that Edge was impaired. However, the DOT officer testified that he wanted to confirm his determination that Edge was driving while under the influence of alcohol; he had been on the job for a month and this was the first time he had investigated a driver for driving under the influence. The officer called the State Patrol again, this time requesting that a state trooper be sent to the scene to conduct an alcosensor test. About an hour and a half later, a state trooper arrived and administered the breath test. The state trooper then read Edge his implied consent rights and transported him to the county jail, where he was given an intoximeter test. In all, Edge was detained for approximately two hours before being advised of his implied consent rights.
"In order for the result of a chemical test to be admissible at trial, the suspect must be advised of his implied consent rights at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant." (Citation and punctuation omitted.) Smith v. State, 204 Ga.App. 576, 577(2)(b), 420 S.E.2d 29 (1992); see State v. Lamb, 217 Ga.App. 290, 291, 456 S.E.2d 769 (1995). Only in limited situations is a delay warranted, such as where advising the accused at the moment of physical arrest would not enable him to make an intelligent choice concerning the state's request and his right to undergo an independent test or where the exigencies of police work prevent giving the advice. See Perano v. State, 250 Ga. 704, 707, 300 S.E.2d 668 (1983). For example, in Clapsaddle v. State, 208 Ga.App. 840, 842, 432 S.E.2d 262 (1993), we held that a one-hour delay was not warranted in the absence of exigent circumstances, any indication that the accused was too intoxicated or emotionally distraught to understand his implied consent rights, or any indication that the officer was unaware the detainee would be charged with violating OCGA § 40-6-391. Likewise, in Vandiver v. State, 207 Ga.App. 836, 837-838(1), 429 S.E.2d 318 (1993), we held that where the accused was not informed of his implied consent rights until after he waited for a tow truck and was transported to a police station, simply because it was the department's practice to follow this procedure, the delay was unwarranted and test results inadmissible. However, in Martin v. State, 211 Ga.App. 561, 562, 440 S.E.2d 24 (1993), a majority of this Court held that a ten minute delay in reading implied consent rights because the officer did not have her new implied consent card was excusable. And, in Fore v. State, 180 Ga. App. 196, 348 S.E.2d 579 (1986), we held that the implied consent law was complied with where a detainee waited 20-25 minutes before being read his rights, based on the officer's need to pursue and arrest another driver coupled with the fact that the detainee probably would not have benefited in any way by being informed of his rights any earlier.
*119 It is clear from these cases that, in deciding whether the delay in giving implied consent advice is excusable, we consider the particular set of facts and circumstances of each case. See State v. Lubin, 164 Ga.App. 689, 692, 297 S.E.2d 371 (1982). Here, the delay resulted from the newly hired DOT officer's desire to be certain that his preliminary determination that Edge was impaired was correct. The officer contacted the State Patrol for assistance as soon as he finished administering the field sobriety tests. There is no evidence in the record to suggest either that the officer knew in advance that the state trooper's arrival would be delayed or that the time lapse was caused by any intention to deprive Edge of his rights. In fact, it appears from the DOT officer's testimony that his intent was to avoid charging Edge with driving while under the influence without having a sufficient basis therefor. Moreover, there is no evidence that Edge would have benefited by being informed of his rights any earlier than he was. See Fore, supra.
(b) Advice given by other than the arresting officer. We do not agree with Edge that the implied consent statute was violated because the state trooper who read him his rights was not the arresting officer. See OCGA §§ 40-6-392; 40-5-55. Edge reads the statute much too narrowly. Although the DOT officer made the traffic stop, wrote up the arrest report and considered himself the arresting officer, the state trooper was present during and assisted in the arrest by administering the final, determinative field test, placing Edge in his patrol car, and transporting him to jail. "[Edge] does not suggest, nor can we imagine, any detriment he may have suffered as a result of the fact that it was [the state trooper], rather than [the DOT enforcement officer], who advised him of his rights." State v. Buice, 176 Ga.App. 843, 844, 338 S.E.2d 293 (1985). No error or harm has been shown.
We note that even if the implied consent statute was not complied with and the intoximeter result therefore inadmissible, the evidence was nonetheless sufficient to authorize a conviction of the charge that Edge drove while under the influence to the extent that it was less safe for him to do so.
2. We find no merit in Edge's contention that the trial court erred in denying his motion to dismiss because an enforcement officer with the DOT lacks authority to enforce HOV lane violations. Edge argues the enforcement and arrest powers of DOT officers extend only to those geographic areas enumerated in OCGA § 32-6-29(b)(1), which areas do not include HOV lanes.[1] However, OCGA § 32-6-29(b) provides that DOT enforcement officers have those specific powers in addition to any powers or duties created by any other law. OCGA § 32-6-29(c) states that DOT enforcement officers have the full authority of peace officers[2] while in the performance of their duties. OCGA § 17-4-23(a) provides, without geographical limitation, that a law enforcement officer is authorized to arrest a person accused of violating any law or ordinance governing the operation of a vehicle by issuing a citation where the offense is committed in his presence. See OCGA § 17-4-23(a); Glazner v. State, 170 Ga.App. 810, 811, 318 S.E.2d 233 (1984). McDuffie's authority to arrest Edge was, therefore, contained in "other law," namely OCGA § 17-4-23. We also point out that even a private person can make an arrest for an offense committed in his presence. See Wells v. State, 206 Ga.App. 513, 426 S.E.2d 231 (1992); OCGA § 17-4-60.
Edge relies upon a 1978 opinion of the attorney general which opines that the arrest powers of DOT enforcement officers do not extend beyond those specifically enumerated in what is now OCGA § 32-6-29. See 1978 *120 Op. Atty. Gen. No. 78-73. We are not persuaded by the conclusion reached in that opinion which, in our view, fails to give proper emphasis to the statutory provision that DOT enforcement officers have the full authority of peace officers and any powers created by any other law. See OCGA § 32-6-29(b), (c). Moreover, in the opinion, which was written nearly 20 years ago, the attorney general did not address, and probably did not contemplate, the situation presented here. Interestingly, in May 1996, the Governor of the State of Georgia issued an executive order, referencing this same 1978 opinion of the attorney general, specifically conferring upon DOT enforcement officers the authority to enforce travel restrictions in HOV lanes, including the issuance of citations for such violations.
3. Edge claims the trial court erred in denying his motion for mistrial after McDuffie testified that the HGN test results indicated a blood-alcohol concentration of over .10 percent when, according to Edge, HGN testing has not evolved to the point it can be used to ascertain specific blood-alcohol content. Assuming there was error, Edge failed to preserve the issue because, after the court gave curative instructions, Edge did not request further curative instructions or renew his motion for mistrial. See D'Angelo v. State, 223 Ga.App. 558, 560(2), 479 S.E.2d 384 (1996).
Judgment affirmed.
POPE, P.J., and BLACKBURN, J., concur.
NOTES
[1] Areas specifically enumerated are: rest areas, truck weighing stations or checkpoints, wayside parks, parking facilities, toll facilities and any buildings or grounds for public equipment and personnel used for or engaged in administration, construction or maintenance of the public roads or research pertaining thereto. OCGA § 32-6-29(b)(1).
[2] Peace officers are defined in the statute as persons who by virtue of their office are vested by law with a duty to maintain public order or to make arrests for offenses, whether the duty extends to all crimes or specific offenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1865235/ | 356 So.2d 21 (1978)
Leo and Sylvia LEVIN and Federal Insurance Company, As Subrogee of Leo and Sylvia Levin, Appellants,
v.
Roger HANKS, Appellee.
No. 76-1196.
District Court of Appeal of Florida, Fourth District.
February 21, 1978.
Rehearing Denied March 30, 1978.
Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellants.
William M. Alper of Greene & Cooper, Miami, for appellee.
LETTS, Judge.
An insurance company plaintiff appeals the failure of the trial court to grant a new trial because of prejudicial remarks to the jury by opposing counsel. We reverse.
This case involves a high speed off shore boat race in which the defendant below, was one of the racing participants. During the race said defendant lost control of his racing boat and crashed into an anchored marker boat. The marker boat was insured by the appellant insurance company which paid off its policyholder and brought suit, as subrogee, against the boat race driver which rammed the marker boat.[1] The jury found the boat race driver not guilty.
*22 The insurance company was obviously properly subrogated to the rights of its insured, and this fact had been specifically admitted to in answer to requests for admissions. Notwithstanding, counsel for the defendant boat racer repeatedly sought to argue to the jury that the insurance company was in effect trying to recover for the second time because it had previously collected premiums from the boat owner. Such argument is exemplified by the following:
1. We are going to say to you and argue to you that Mr. Levin (marker boat owner) carried insurance for damage to his hull. That his hull was damaged. He filed his claim. The insurance company paid that claim. That should be the end of it, but this insurance company is now saying to Mr. Hanks (racing boat driver), oh, it was your fault.
2. So, what have you got here? You have got a rip-off, you have got an insurance company who collected premiums from this man (marker boat owner), and a lot of other people.
MR. FITZGERALD: That is improper argument. It has been conceded the insurance company has a right to bring this action, and they are entitled to a fair trial. For him to suggest that there is some reason other than what is in evidence why this company shouldn't prevail is totally improper argument.
THE COURT: Sustained.
3. He (the marker boat owner) is the only one that got on the stand and said it is worth $80,000.00, and therefore he is damaged, and the insurance company ought to get their money back. I don't know which way you want to call it, but I think it is a rip-off, and that is what I will call it. They got themselves a target defendant... .
These arguments are clearly improper, but appellee insists that even if that be true, they do not constitute reversible error. He also argues that the remarks were addressed to the marker boat owner, not the insurance company. While that may have been his intent, it appears to us that a contrary impression was given.
Perhaps no single one of these three arguments would be in and of itself reversible, but collectively we are of the opinion that they were highly prejudicial to the insurance company. See Southeast Zayre, Inc. v. Carswell, 348 So.2d 45 (Fla. 1st DCA 1977). It is true that the first of the three was not objected to, but the second was and the objection thereto sustained. Notwithstanding, the same argument was repeated again but a few lines later and the issue preserved for review by a timely motion for a new trial.
As we said in Harrold v. Schluep, 264 So.2d 431, 435 (Fla. 4th DCA 1972):
"Closing argument is restricted to the evidence and issues presented and the inferences which can be drawn from the evidence. Westbrook v. Bacskai, Fla. App. 1958, 103 So.2d 241, a personal injury case, held that counsel can not argue facts not in evidence or not warranted by the evidence."
In the instant case, the boat racer's counsel had conceded in the record that the right of the insurance company to sue was not in issue. He (counsel) is able and experienced and we perceive his repeated remarks to be directed to the passions and prejudices of the jury against insurance companies. This being so, the cumulative effect of the quoted remarks denied the insurance company a fair trial. Seaboard Air Line Railroad Company v. Ford, 92 So.2d 160, 165 (Fla. 1957).
Notwithstanding that the foregoing is dispositive, we would comment that we do not agree with appellants other contention that the following jury instruction should have been given:
"When a vessel is moored or anchored where she is supposed to be moored and anchored, and she is struck during daylight by a moving vessel, the presumption is that the moving vessel is at fault in colliding with the anchored vessel."
We agree that under admiralty, this is a reasonably correct statement of the law [For example, see Skidmore v. Grueninger, *23 506 F.2d 716, 721 (5th Cir.1975)]; however, we do not believe it error to refuse to give such an instruction where the anchored vessel is a willing participant in a high speed ocean boat race.
REVERSED and REMANDED.
CROSS and MOORE, JJ., concur.
NOTES
[1] The marker boat owner was also a plaintiff below, seeking additional damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264442/ | 239 P.3d 377 (2010)
STATE of Washington, Respondent,
v.
Thomas W. DeCLUE, Appellant.
Nos. 38156-7-II, 38376-4-II.
Court of Appeals of Washington, Division 2.
September 21, 2010.
James Smith, Cowlitz County Hall of Justice, Kelso, WA, for Respondent.
*378 Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Appellant.
PART PUBLISHED OPINION
ARMSTRONG, P.J.
¶ 1 Thomas DeClue pleaded guilty to second degree manslaughter and first degree unlawful possession of a firearm. He later moved to withdraw the plea, claiming that he was incompetent when he pleaded guilty due to numerous prescription medications he was taking at that time. The trial court denied the motion and DeClue appeals, arguing (1) the trial court erred by denying the motion without first holding a formal competency hearing under RCW 10.77.060 and (2) his counsel ineffectively represented him by failing to investigate whether his medications rendered him incompetent to enter the plea. Finding no reversible error, we affirm.
FACTS
¶ 2 On July 1, 2006, DeClue shot and killed Richard Shelburg. The State charged DeClue with first degree murder and first degree unlawful possession of a firearm, but amended the information to second degree manslaughter and first degree unlawful possession of a firearm as part of a plea agreement. The trial court accepted DeClue's Alford plea[1] and sentenced him to an exceptional sentence of 120 months. In March 2008, DeClue moved to withdraw his guilty plea, contending that he was under the influence of multiple medications while incarcerated in the Cowlitz County Jail and, consequently, was unable to knowingly, voluntarily, and intelligently waive his constitutional rights.[2] The trial court ruled that DeClue's motion and affidavit "reaches the standards such that an evidentiary hearing is ... required." Report of Proceedings (RP) (May 8, 2008) at 12.
¶ 3 At the evidentiary hearing, a nurse from the Cowlitz County Jail, Sally Andrew, testified that DeClue took several different medications at different times throughout his time in the jail, including: Vicodin, a narcotic pain reliever, Tramadol, a non-narcotic pain reliever, BuSpar, an anti-anxiety medication, Seroquel, an anti-psychotic medication, Skelaxin and Robaxin, muscle relaxers, and Sudafed, a nasal decongestant. Andrew testified that Vicodin, BuSpar, Skelaxin, and Seroquel cause drowsiness and sleepiness. She also testified that DeClue never appeared to be intoxicated or impaired by the medications.
¶ 4 DeClue testified that the medications made him feel "like a zombie" and impaired his ability to process information. RP (June 26, 2008) at 17, 21. He stated that when he entered his plea, he did not fully understand the consequences of his decision. Bonita Worden, DeClue's niece, testified that she visited her uncle weekly at the jail and he "seemed tired all the time, in a daze," and would forget what he was saying mid-sentence. RP (June 26, 2008) at 72-73. Kevin Robinson, an inmate at the jail, testified that DeClue had difficulty concentrating on activities like reading and card games and would lose his train of thought in the middle of conversations. Taylor Conley, another inmate, testified that DeClue was drowsy and lethargic when on medication, spent a lot of time sleeping, and had a very short attention span.
¶ 5 James Morgan, DeClue's attorney at his plea hearing, testified that he was aware DeClue was experiencing problems with pain management and depression but DeClue never appeared incompetent to him. According to Morgan, "[DeClue] was always very sharp. I mean, he was astute. He was paying very close attention to his case. He was a fairly intelligent individual who I had no problems communicating [with]." RP (June 26, 2008) at 39. Morgan also testified that he and DeClue extensively discussed the pros and *379 cons of his case and that DeClue participated in formulating the terms of the plea agreement that the State ultimately accepted.
¶ 6 The trial court denied DeClue's motion to withdraw his plea, ruling that it did not find anything in the record or the evidence offered by DeClue to support his assertion that he was incompetent when he pleaded guilty. The trial judge had reviewed a videotape of the plea hearing and clearly remembered the plea colloquy with DeClue. The judge found that DeClue appeared to be lucid at that time and did not appear to be affected by the medications he was taking. The judge also relied on Andrew's testimony that DeClue never seemed incapacitated by the medications, and Morgan's testimony that DeClue was very involved in his case and helped formulate the terms of the plea agreement.
ANALYSIS
Competency Hearing
¶ 7 We will reverse a trial court's ruling on a motion to withdraw a guilty plea only for an abuse of discretion. State v. Marshall, 144 Wash.2d 266, 280, 27 P.3d 192 (2001). A trial court must allow a defendant to withdraw a guilty plea "whenever it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f); Marshall, 144 Wash.2d at 280-81, 27 P.3d 192. A manifest injustice exists where (1) the plea was not ratified by the defendant; (2) the plea was not voluntary; (3) counsel was ineffective; or (4) the plea agreement was not kept. Marshall, 144 Wash.2d at 281, 27 P.3d 192. The injustice must be "obvious, directly observable, overt, [and] not obscure." State v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699 (1974). The defendant's burden when seeking to withdraw a plea is demanding because ample safeguards exist to protect the defendant's rights before the trial court accepts the plea. Taylor, 83 Wash.2d at 596-97, 521 P.2d 699.
¶ 8 A defendant's claim that he lacked competence to plead guilty is equivalent to claiming the plea was not voluntary. Marshall, 144 Wash.2d at 281, 27 P.3d 192. A person is "incompetent" if he "lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect." RCW 10.77.010(15). A formal competency hearing under RCW 10.77.060 is required "whenever a legitimate question of competency arises." Marshall, 144 Wash.2d at 279, 27 P.3d 192. These procedures are mandatory, not merely directory. In re Pers. Restraint of Fleming, 142 Wash.2d 853, 863, 16 P.3d 610 (2001).
¶ 9 If a defendant supports his motion to withdraw a guilty plea with substantial evidence of incompetency, the trial court must either grant the motion or hold a formal competency hearing under RCW 10.77.060. See Marshall, 144 Wash.2d at 281, 27 P.3d 192. In Marshall, 144 Wash.2d at 270-73, 27 P.3d 192, the defendant moved to withdraw his guilty plea, presenting undisputed testimony from a neurologist, a neuropsychologist, and a psychiatrist that he suffered from brain damage, bipolar mood disorder, and paranoid schizophrenia. Furthermore, one doctor concluded that the defendant was delusional and suffering from psychotic depression when he pleaded guilty. Marshall, 144 Wash.2d at 271-72, 27 P.3d 192. Despite acknowledging that the defendant clearly suffered from brain damage, the trial court ruled that the defendant did not exhibit any signs of incompetency during the plea hearing and denied the motion. Marshall, 144 Wash.2d at 280, 27 P.3d 192. Our Supreme Court reversed, holding:
Here, despite substantial evidence calling Marshall's competency into question, the trial court denied the motion to withdraw the guilty plea absent the mandatory competency hearing required by RCW 10.77.060. We hold that where a defendant moves to withdraw [a] guilty plea with evidence the defendant was incompetent when the plea was made, the trial court must either grant the motion to withdraw [the] guilty plea or convene a formal competency hearing required by RCW 10.77.060.
Marshall, 144 Wash.2d at 281, 27 P.3d 192.
¶ 10 In contrast, when an incompetency claim is not supported by substantial evidence, *380 the defendant has not demonstrated a manifest injustice and the trial court may deny the motion without holding a formal competency hearing. See State v. Calvert, 79 Wash.App. 569, 576, 903 P.2d 1003 (1995) (rejecting a defendant's incompetency claim based on a head injury sustained nine days prior to the plea hearing where neither the defendant's medical records nor the doctor's testimony supported the defendant's claim that he was incompetent when he pleaded guilty); State v. Hystad, 36 Wash.App. 42, 45, 671 P.2d 793 (1983) (rejecting defendant's unsupported incompetency claim because "defendant's bald claim of methadone-induced confusion does not meet the demanding standard required to show manifest injustice"); State v. Armstead, 13 Wash.App. 59, 63-65, 533 P.2d 147 (1975) (rejecting a defendant's unsupported claim that he was "drunk off barbiturates" when he pleaded guilty).
¶ 11 DeClue argues that, similar to Marshall, he presented substantial evidence of incompetency and the trial court erred by holding an evidentiary hearing instead of a formal competency hearing under RCW 10.77.060. He asks us to vacate his plea and remand for a formal competency hearing.
¶ 12 We first consider whether the trial court erred by holding an evidentiary hearing instead of a formal competency hearing. DeClue's motion to withdraw his guilty plea was supported by only an affidavit asserting that the numerous medications he was taking at the time of the plea interfered with his ability to understand and assess the consequences of pleading guilty. The trial judge initially ruled that the motion "reaches the standards such that an evidentiary hearing is ... required," but later clarified her reasons for holding the hearing. RP (May 8, 2008) at 12. The judge explained during her oral ruling following the evidentiary hearing:
I took the extra step. I knew what the videotape looked like from the plea. I recalled taking the plea from Mr. DeClue. I didn't need to hold this hearing, necessarily. I remembered what he looked like, but his Affidavit raised an issue that I hadn't heard before. I wasn't aware, at the time of the taking of the plea, that Mr. DeClue was taking medications. And I felt like I really needed to know what those were and what effect it had.
RP (June 26, 2008) at 126.
¶ 13 A formal competency hearing is required "whenever a legitimate question of competency arises." Marshall, 144 Wash.2d at 279, 27 P.3d 192. A legitimate question of competency arises when a defendant moves to withdraw a guilty plea and supports the motion with "substantial evidence" of incompetency. See Marshall, 144 Wash.2d at 281, 27 P.3d 192. In this case, the trial judge's explanation demonstrates that she held an evidentiary hearing to learn about the possible effects of DeClue's medications, not because he had presented substantial evidence of incompetency. In other words, the trial judge held the hearing to review the evidence supporting DeClue's motion and determine whether a "legitimate question of competency" existed. Marshall, 144 Wash.2d at 279, 27 P.3d 192. Because the judge had not yet found substantial evidence calling DeClue's competency into question, she was not required to hold a formal competency hearing at that point.
¶ 14 We next consider whether DeClue presented substantial evidence of incompetency at the evidentiary hearing, thereby requiring the trial court to either convene a formal competency evaluation or grant his motion. As previously discussed, a defendant's burden when seeking to withdraw a plea is demanding because ample safeguards exist to protect his rights before the trial court accepts the plea. Taylor, 83 Wash.2d at 596-97, 521 P.2d 699. The defendant must demonstrate that the "manifest injustice" warranting withdrawal was "obvious, directly observable, overt, [and] not obscure." Taylor, 83 Wash.2d at 596, 521 P.2d 699.
¶ 15 DeClue must demonstrate that he was incompetent when he pleaded guilty because his medications interfered with his "capacity to understand the nature of the proceedings against him ... or to assist in his ... defense...." RCW 10.77.010(15). After reviewing all of the evidence, the trial court ruled that nothing in the record supported *381 DeClue's assertion that he was incompetent when he pleaded guilty. The trial judge relied on her own recollection of the plea hearing, a nurse's testimony that DeClue never appeared intoxicated or incapacitated by the medication, and defense counsel's testimony that DeClue never had any problems communicating, appeared to be "sharp" and "astute," was paying "very close attention to his case," and participated in plea negotiations. RP (June 26, 2008) at 122-26. Although DeClue, his niece, and several inmates testified to DeClue's claimed impairment, the trial court did not find that testimony persuasivea credibility determination that we cannot review on appeal. See State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).
¶ 16 DeClue likens his case to Marshall. In Marshall, the defendant produced undisputed evidence of brain damage and mood disorders, a doctor concluded that his impairment rendered him incompetent when he pleaded guilty, and the trial court accepted that the defendant suffered from brain damage. Marshall, 144 Wash.2d at 269-73, 280, 27 P.3d 192. In contrast, DeClue presented no credible evidence that the medications affected his ability to understand the consequences of pleading guilty. Accordingly, he did not demonstrate a manifest injustice and the trial court did not abuse its discretion by denying his motion to withdraw his guilty plea.
¶ 17 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: HUNT and QUINN-BRINTNALL, JJ.
NOTES
[1] A guilty plea entered by a defendant in connection with a plea bargain, without actually admitting guilt. N. Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
[2] This was DeClue's second motion to withdraw his guilty plea. In 2007, DeClue filed a motion to withdraw on the grounds that the State breached the plea agreement. We affirmed the trial court's denial of his motion, but remanded for clarification of DeClue's sentence. See State v. DeClue, 149 Wash.App. 1017, 2009 WL 597276 (2009) (unpublished opinion). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264399/ | 744 A.2d 1169 (2000)
162 N.J. 418
The STOP & SHOP SUPERMARKET COMPANY, a corporation of the State of Delaware and State Street Bank and Trust Company of Connecticut, National Association, not in its individual capacity, but solely as Trustee under a Trust Agreement dated as of April 26, 1994, Plaintiffs-Appellants,
v.
The BOARD OF ADJUSTMENT OF the TOWNSHIP OF SPRINGFIELD, Colonial Association of Springfield and the Township of Millburn, Defendants-Respondents, and
Village Super Market, Inc., a corporation of the State of New Jersey and Sumas Realty Corporation, a corporation of the State of New Jersey, Intervenors-Respondents.
Supreme Court of New Jersey.
Argued November 8, 1999.
Decided February 9, 2000.
*1170 James V. Segreto, Haledon, for plaintiffs-appellants (Segreto & Segreto, attorneys; Mr. Segreto and Paul A. Segreto, on the brief).
Roger S. Clapp, Summit, for defendant-respondent the Township of Millburn (Cooper, Rose & English, attorneys; Mr. Clapp and Bruce S. Goodman, on the brief).
*1171 Stephen E. Barcan, Woodbridge, for intervenors-respondents, Village Super Market, Inc. and Sumas Realty Corporation (Wilentz, Goldman & Spitzer, attorneys; Mr. Barcan and Donna M. Jennings, on the briefs).
Neil J. Dworkin, Irvington, for defendant-respondent the Board of Adjustment of the Township of Springfield.
Michael S. Feldman, Somerville, for defendant-respondent Colonial Association of Springfield (Wasser & Feldman, attorneys)
The opinion of the Court was delivered by STEIN, J.
The principal issue presented by this appeal concerns the extent to which a previously granted use variance to an applicant conducting a retail business use binds the municipality to permit the applicant's transferee, engaged in a different retail business use, to succeed to the rights conferred by the use variance. Stating the question more narrowly, where the prior use variance allowed a retail department store, a permitted use, to use the residentially-zoned portion of its split-zoned lot for parking as a use accessory to the permitted retail use, is the benefit of that use variance for parking available to a retail supermarket, the department store's transferee, whose proposed use also constituted a permitted retail use under the ordinance?
In a published opinion, the Appellate Division, reversing the judgment of the Law Division holding that the retail supermarket succeeded to the rights conferred by the earlier use variance, determined that the differences between the two enterprises precluded reliance on the earlier variance. Stop & Shop v. Board of Adj. of Springfield, 315 N.J.Super. 427, 436-37, 718 A.2d 1218 (1998). That court observed that "[i]n granting these variances, the Board considered only the specific enterprise proposed by Sak's in its application.... [A]ny proposed, significant change or alteration in the use of the property required further consideration by the board of adjustment." Id. at 435, 718 A.2d 1218.
We granted Stop & Shop's petition for certification, 158 N.J. 687, 731 A.2d 47 (1999), and now reverse the judgment of the Appellate Division.
I
The relevant facts essentially are undisputed. Stop & Shop (S & S) instituted this suit to challenge the determination of the Springfield Board of Adjustment (Board or Board of Adjustment) that S & S, which seeks to open and operate a retail supermarket on property previously owned by Saks Fifth Avenue (Saks) and occupied since 1956 by Saks' retail department store, cannot rely on use variances granted by the Board in 1956 to permit parking on the residentially-zoned portion of the lot, and in 1968 to permit construction of an addition to the store on that same part of the lot.
The property in controversy consists of approximately 9.7 acres with about six-hundred feet of frontage on Millburn Avenue, a heavily-traveled county road occupied in the vicinity of the property by a variety of retail commercial uses. Although the portion of the property located within twenty feet of Millburn Avenue is located in Millburn Township, the bulk of the property is located in Springfield. During all relevant periods (other than the period subsequent to April 1999, when a new zoning ordinance took effect, infra at 428-30, 744 A.2d at 1175), the Springfield portion of the property was split-zoned in approximately equal parcels, the portion closest to Millburn Avenue to a depth of about two-hundred feet being commercially zoned and the southerly portion being residentially zoned. When Saks obtained its variance in 1956, the commercially zoned portion was in the General Business (GB) District in which a "Retail store or group thereof" was a permitted use. In *1172 1956 the residentially zoned portion, having an average depth of 120 feet, was zoned S-120, a single-family residence zoning district requiring 120 feet of frontage, and front and rear yard setbacks of fifty feet and seventy-five feet respectively.
In 1994 when S & S applied for a certificate of occupancy, the commercially-zoned portion of the property was zoned General Commercial (GC), in which "Retail Sales and service stores" were a permitted use. The ordinance defined "Retail Sales and Services" as follows:
The sale of goods for use or consumption off the premises, which goods are intended to meet direct consumer food, clothing, furnishing, recreational or other needs and are not intended for resale, and/or the sale of services such as personal care, financial, repair, catering and other similar services. The term "retail sales and service" shall specifically exclude the sale of any type of motor vehicle, as defined by N.J.S.A. 39:1-1.
That supermarkets are a permitted use in the GC zone under the ordinance in effect prior to 1999 is not disputed, and off-street parking is a permitted accessory use in that zone. At some time subsequent to 1956 the residentially-zoned portion of the property was rezoned from S-120 to S-75.
The property was occupied by Saks' retail department store from approximately 1957 to 1994. Until 1968 the department store was a 64,000 square-foot structure located entirely within the commercial zone, and the accessory parking was located partly in the commercial zone and, pursuant to the 1956 use variance, partly in the S-120 residential zone. Pursuant to a second use variance granted in 1968, Saks was permitted to construct a 19,000 square foot addition to its building, of which 13,000 square feet were located in the residentially-zoned portion of the property.
The residentially-zoned portion of the property is abutted on its southerly and south-easterly boundaries by older residential dwellings located in the S-60 residential zone requiring sixty feet of frontage and an area of 7500 square feet. Those dwellings front on Baltusrol Avenue and Short Hills Avenue, local streets running nearly parallel with Millburn Avenue, and on Tower Drive, a local street perpendicular to Millburn Avenue but bounded by Baltusrol Avenue to the north and Short Hills Avenue to the south.
In 1956 Saks applied to the Board of Adjustment for a use variance to permit the residentially-zoned portion of the property to be used for vehicular parking that was accessory to the Saks department store proposed to be constructed on the commercially-zoned portion of the property. The proposed parking area would accommodate 750 cars. The application initially was considered by the Board at its regular meeting on January 26, 1956. (The record before us includes the minutes of the pertinent meetings of the Board, as well as the Board's resolution, but does not include a transcript of the hearings conducted by the Board.) At the initial Board meeting the concerns of residents near the property focused on the lack of complete building and site plans for the proposed project, and on whether Baltusrol Avenue, a dedicated public street with an unpaved segment that extended onto the Saks property, would be vacated and dead-ended outside the property's boundary or, alternatively, paved to provide ingress to and egress from the proposed parking area. Most residents favored vacating the unpaved portion of Baltusrol Avenue to prevent traffic generated by the department store from creating a burden on local streets.
The Board's formal action on the application was deferred until its March 22, 1956 meeting to permit a site inspection. At that meeting the Board unanimously approved the Saks use variance. The Board's resolution included findings by the Board that the residentially-zoned portion of the Saks property was unsuitable for residential development. Specifically, the *1173 Board noted that because the depth of the property's residential portion was approximately 120 feet and the S-120 residential zone required front and rear yard setbacks of fifty and seventy-five feet respectively, the residential portion of the property was "incompatible with the depth requirements for the zone." In addition to the insufficiency of its depth, the Board concluded that "the residence zoned portion of the subject premises [does] not lend [itself to] the construction of houses" because "it would abut immediately on a business zone," the construction of homes contemplated by the S-120 zone is "incompatible with the established patterns of homes in the [abutting] residential area," and, finally, because residential development would require paving and extension of Baltusrol Avenue resulting in the use of that street by "large scale commercial and other vehicular traffic," that development would be incompatible with residential uses in the area. The Board concluded that the property's "highest and best use" would be achieved by the grant of the use variance and the "integrated development" of the entire parcel for the proposed retail commercial purpose because it would "promote the general welfare" and "preserve and enhance property values" by removing the danger of residential development that is "haphazard and inconsistent" with the surrounding area. The grant of the variance was conditioned on the closing of Baltusrol Avenue at the property line, construction of a ten-foot buffer strip along the rear of lots fronting on Tower Drive, and construction of a six-foot fence around that portion of the property's perimeter that abuts residential development.
In 1968 Saks applied for and was granted a second variance to extend its department store building, formerly confined entirely to the GC zone, into the S-120 residential zone. The Board's resolution determined that "since the store is located where it is, the area into which applicant seeks to extend the store is no longer suited for residential use." In addition, the Board found that "[t]he Saks Fifth Avenue store provides shopping of a quality not otherwise available in the community, and ... from the evidence adduced that to maintain such quality standards the requested expansion is necessary." The 1968 variance contained additional conditions regarding adjacent roadways, parking, plantings and shrubs, buffer strips, lighting and fencing. As was the case with the original resolution, however, no conditions were imposed limiting or defining the scope of the retail use permitted under the variance. Saks' 1968 variance application stated that an addition of 30,400 square feet was proposed, and that the existing building occupied approximately 64,000 square feet. Although the Board approved the entire addition sought by Saks, the record reveals that the size of the expanded building aggregates 83,000 square feet, of which approximately 13,000 square feet is in the residentially-zoned portion of the property. That suggests that the addition constructed by Saks pursuant to the 1968 variance was about 19,000 square feet, of which 6000 square feet was in the commercially-zoned part of the property.
In May 1994 counsel to S & S wrote a letter to the Springfield Zoning Officer seeking a determination that S & S would be permitted to use the Saks property for a retail supermarket. S & S proposed two alternative plans. One proposal contemplated the use of the existing 83,000 square foot existing structure, with some modifications that would not increase the existing square footage. The second proposal contemplated a new structure consisting of approximately 85,000 square feet, of which approximately 4400 square feet would be located in the residentially-zoned portion of the property. The letter noted that a retail supermarket is a permitted use in the GC zone, and requested the zoning officer's confirmation that S & S would not require any variances if it proceeded under either of the proposed alternatives. Counsel to the Board of Adjustment replied to S & S's letter on behalf of the Zoning *1174 Officer. That response informed S & S that it could not rely on the prior Saks variances, and that S & S either should seek a new variance, rezoning of the property, or review of the Zoning Officer's determination from the Board of Adjustment. S & S appealed to the Board from the Zoning Officer's determination pursuant to N.J.S.A. 40:55D-70(a) and (b), contending that it was entitled to rely on the use variances previously granted to Saks. The Board conducted hearings on S & S's appeal in February and April 1996.
At the hearings S & S produced Ken Narva, an architect, who testified concerning the layout of the existing structure and the shape and size of the proposed new structure S & S would construct under its alternative plan. That new structure would have a "footprint" of approximately 73,200 square feet and would include two storage mezzanines totaling about 12,000 additional square feet. Approximately 4400 square feet would be located in the residentially-zoned portion of the property, substantially less than the Saks building that included over 13,000 square feet in the residential zone. The proposed building would include seven fully enclosed loading docks, compared with one open loading dock at the existing building. The proposed S & S plan contemplates 493 parking spaces, compared to 547 parking spaces on the existing building site.
Cynthia Fuller, a twenty-nine-year resident of Millburn and a frequent patron of Saks as well as area supermarkets, testified as a joint witness for several objectors. She testified that the merchandise sold by Saks was "very upscale. Mainly women's clothing, and in my opinion, very expensive." She testified that Saks also sold cosmetics, and operated a restaurant as well as a beauty parlor. She recalled that the Saks store was open on Monday and Thursday evenings and, in recent years, on Sunday afternoons. She described the store's atmosphere as "dignified," characterizing it as "[n]o hustle-bustle or that type of thing." She testified that the Saks parking lot never was completely filled and that, typically, she could find a parking space very near to the store's entrance. She testified that traffic conditions on Millburn Avenue were especially heavy during rush hour and on Saturdays.
At the conclusion of the hearings the Board voted six to one to sustain the zoning officer's conclusion that S & S required a new use variance to operate its supermarket on the Saks property. The Board's resolution noted that S & S declined "to offer proofs concerning a qualitative comparison between the previously approved use of the residentially-zoned property and the newly proposed use of the residentially-zoned property." The Board concluded that S & S failed to demonstrate "that the supermarket business it intends to operate on the property ... is of a similar nature, kind, or use intensity to that of the Saks operation and thus cannot be included or permitted under the variances previously granted for Saks Fifth Avenue."
S & S filed a complaint in lieu of prerogative writ challenging the Board's decision. The Colonial Association of Springfield, comprised of Springfield residents potentially affected by the proposed use, and the Township of Millburn were permitted to intervene as defendants. In an unpublished opinion the trial court reversed the Board's determination as an abuse of discretion, ruling that S & S did not need a new use variance to operate a supermarket on the property.
The court determined that whether S & S's use of the property was qualitatively similar to Saks' use was irrelevant because the specific concerns cited by the boardS & S's longer hours of operation, greater number of loading docks, and greater number of customerswere ordinarily addressed in the site plan review process. The court noted that from a land-use perspective, the Springfield zoning ordinance does not distinguish between types of "retail and service stores," the category under *1175 which both supermarkets and department stores fall. Therefore, the court observed, the same zoning requirements apply to both types of use. The court also noted that variances are not personal to the owner, but run with the land.
The Springfield Board of Adjustment, the Township of Millburn, and the Colonial Association of Springfield appealed the judgment of the Law Division. Prior to argument, the Appellate Division permitted Village Super Market, Inc. and Sumas Realty Corporation to intervene in the action. The Appellate Division reversed the trial court's judgment, observing that "a use created by a variance may not be expanded or substantially changed without further application to the board of adjustment." 315 N.J.Super. at 431, 718 A.2d 1218. The court concluded that "[i]n granting these variances, the Board considered only the specific enterprise proposed by Sak's in its application." Id. at 435, 718 A.2d 1218. "[A]ny proposed, significant change or alteration in the use of the property required further consideration by the board of adjustment." Ibid.
As noted, in April 1999, subsequent to the judgment of the Appellate Division and prior to argument before this Court, Springfield enacted an amendment to its zoning ordinance establishing an Affordable Housing Mixed Use (AH-MU) zone, the boundaries of which are identical to the boundaries of S & S's property. No other property in Springfield is located in the AH-MU zone. Permitted uses in the AH-MU zone include senior citizen housing, with twenty percent of the units reserved for low- and moderate-income senior citizens. Also permitted are commercial uses allowed in the Neighborhood Commercial zone, but no commercial establishment can exceed 7000 square feet in gross floor area. Moreover, not more than thirty percent of any property in the AH-MU zone shall be used for commercial purposes, and no commercial use or parking accessory to a commercial use shall be further than two-hundred feet from Millburn Avenue. S & S has challenged the validity of that ordinance in a separate suit now pending in the Law Division, alleging in part that the amendatory ordinance constituted "spot-zoning," and that its proposed use of the property unlawfully would be prohibited by the terms of the amendatory ordinance. Concurrently with the filing of this opinion, we grant the motion of Intervenor Village Super Market, Inc. to supplement the record with the provisions of the amendatory ordinance.
II
A brief review of certain basic principles of zoning law may illuminate our analysis of the issues implicated by this appeal. New Jersey's first zoning statute was enacted in 1924, L. 1924, c. 146, and was modeled after the standard state zoning statute drafted by the United States Department of Commerce. Our 1924 statute authorized local boards of adjustment to grant variances "not [ ] contrary to the public interest," to avoid "unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." L. 1924, c. 146, § 7(3). See Commercial Realty and Resources Corp. v. First Atlantic Properties Co., 122 N.J. 546, 553-54, 585 A.2d 928 (1991). In the early stages of zoning legislation, courts expressed the concern that without a procedure permitting the grant of variances, zoning ordinances could be vulnerable to constitutional challenge. In Brandon v. Board of Com'rs of Montclair, 124 N.J.L. 135, 142-43, 11 A.2d 304 (Sup. Ct.), aff'd, 125 N.J.L. 367, 15 A.2d 598 (E. & A.1940), the court observed:
Due to the necessity of generality in the subdivision of the municipality into districts under the zoning power, especial hardship ofttimes ensues unnecessarily and unreasonably to individual landowners; and the function of the board of adjustment under the statute is, through a variance, to relieve from such consequences, and thus to avert what would otherwise take the category *1176 of an unwarranted interference with the right of private property. Such use restrictions are not reasonable unless fairly necessary for the attainment of one or more of the intents set forth in section 40:55-32, supra; and, while the general regulation may be reasonable, its application in the individual case, by reason of special conditions, may constitute an unnecessary and unjust invasion of the right of property. In such circumstances, the board of adjustment is invested with power to vary the application of the general regulation to serve the statutory policy.
[ (citation omitted).]
See also Somers v. Bradley Beach, 115 N.J.L. 135, 138-40, 178 A. 755 (E. & A.1935) (describing variance power of board of adjustment as "an essential adjunct to a zoning ordinance," and invalidating local zoning ordinance because of omission of authorization for special exception and variance appeals to board of adjustment); accord, Note, Zoning Variances, 74 Harv. L.Rev. 1396 (1961) (observing that variance power originally was considered necessary to protect zoning ordinances from constitutional objection).
Our caselaw firmly establishes the nature of the proofs necessary to constitute "special reasons," the statutory standard that authorizes the grant of use variances. N.J.S.A. 40:55-70d. In one narrow class of cases, those involving inherently beneficial uses, the proofs supporting special reasons focus less on the characteristics of the specific property and to a greater extent on whether the proposed use furthers the general welfare because the institutional character of the use fulfills a necessary or significant public purpose. See Medici v. BPR Co., 107 N.J. 1, 11-12, 526 A.2d 109 (1987). Nevertheless, the proponent of an inherently beneficial use variance also must address the statutory negative criteria and prove that on balance the public benefit outweighs any impairment to the zone plan and zoning ordinance or any detriment to the neighborhood. Sica v. Board of Adj. of Wall, 127 N.J. 152, 165-66, 603 A.2d 30 (1992). Accordingly, if the proofs demonstrate that because of the specific property's location and characteristics the detrimental effects of an inherently beneficial use outweigh the public benefit, a municipality is authorized to deny the requested variance. Id. at 166, 603 A.2d 30.
By far the more common category of use variance applications concerns commercial uses that are not inherently beneficial. For such variance applications, the required proof of special reasons focuses exclusively on the special characteristics of the property and imposes on the applicant the burden of establishing either "that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought," Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 279, 234 A.2d 385 (1967), or that undue hardship exists because the property for which the use variance is sought cannot reasonably be adapted to a conforming use. Medici, supra, 107 N.J. at 17 n. 9, 526 A.2d 109. We note that the 1956 resolution of the Springfield Board of Adjustment granting the original Saks variance relied on both of those permissible grounds for a commercial use variance, determining that the residential portion of the Saks property was best suited for "integrated" development with the commercial portion for use as a retail department store, and that exceptional and undue hardship existed because of that property's unsuitability for residential use.
Similarly, our cases make clear that in respect of appeals for bulk or dimensional variances based on undue hardship pursuant to N.J.S.A. 40:55-39c(1), "personal hardship is irrelevant to the statutory standard, and ... the correct focus must be on whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property." Lang v. Board of Adj. of North Caldwell, 160 N.J. 41, 53, 733 A.2d 464 (1999).
*1177 The constitutional concerns that prompted the inclusion of a variance appeal procedure in the early versions of zoning ordinances, combined with the property-specific focus of the proofs that ordinarily must be elicited to support commercial use variances, provide the rationale for the widely accepted principle of zoning law that "a variance granted becomes attached to the land and is not a mere personal right, and a purchaser takes the land free from those zoning restrictions to which the variance pertains." Eugene McQuillin, The Law of Municipal Corporations, § 25.163 (3d ed.1991). In Industrial Lessors, Inc. v. City of Garfield, 119 N.J.Super. 181, 290 A.2d 737, certif. denied, 61 N.J. 160, 293 A.2d 390 (1972), the Appellate Division expressly recognized that characteristic of variances:
A variance, however, is an official quasi-legislative, quasi-judicial determination that the use or structure allowed is not offensive to the ordinance in the broad context of the particular circumstances which, under the statutory criteria specified by N.J.S.A. 40:55-39, have authorized the grant. In essence, the use or structure allowed becomes a conforming use. 2 Rathkopf, The Law of Planning and Zoning (3d ed. 1972), 46-1. Although a variance can perhaps be lost by abandonment, see North Plainfield v. Perone, 54 N.J.Super. 1, 12-13, 148 A.2d 50 (App.Div.) certif. den. 29 N.J. 507, 150 A.2d 292 (1959) it otherwise partakes to a large degree of the characteristics of a vested right running with the land. 2 Rathkopf, op. cit.
[Id. at 183, 290 A.2d 737.]
Other New Jersey cases have emphasized that use variances adhere to the property and are not personal to the applicant. See, e.g., Soho Park Land Co. v. Board of Adj. of Belleville, 6 N.J. Misc. 686, 687, 142 A. 548 (Sup.Ct.1928) (invalidating condition attached to use variance allowing construction of industrial building in residential zone that limited building to use "solely as a wire factory" by applicant for variance, noting that condition constituted "restraint on alienation" that would affect value of property); Aldrich v. Schwartz, 258 N.J.Super. 300, 308, 609 A.2d 507 (App.Div.1992) (noting that "[v]ariances run with the land and are not personal to the property owner who obtained the grant"); Berninger v. Board of Adj. of Midland Park, 254 N.J.Super. 401, 405, 603 A.2d 954 (App.Div.1991), aff'd 127 N.J. 226, 603 A.2d 946 (1992) (noting that "a condition [that] limits the life of a variance to ownership by a particular individual is patently illegal, as it advances no legitimate land use purpose"); DeFelice v. Zoning Bd. of Adj. of Point Pleasant Beach, 216 N.J.Super. 377, 383, 523 A.2d 1086 (App.Div.1987) (holding that "a variance runs with the land and is not personal to the property owner"); Farrell v. Estell Manor Zoning Bd. of Adj., 193 N.J.Super. 554, 558, 475 A.2d 94 (Law Div.1984) (stating that "[a] variance granted is not personal to the owner to whom granted but is available to the grantee's successors").
The caselaw throughout the country, consistent with our decisions, recognizes that variances run with the land and that their benefit is available to the applicant's successors in title. See Garibaldi v. Zoning Bd. of Appeals of Norwalk, 163 Conn. 235, 303 A.2d 743, 745 (1972); National Black Child Development Institute, Inc. v. District of Columbia Bd. of Zoning Adj., 483 A.2d 687, 691-92 (D.C.App.1984); Halifax Area Council on Alcoholism v. City of Daytona Beach, 385 So.2d 184, 188 n. 5 (Fla.App.1980); Huntington v. Zoning Bd. of Appeals of Hadley, 12 Mass.App.Ct. 710, 428 N.E.2d 826, 829-30 (1981); State v. Konopka, 119 Ohio App. 513, 200 N.E.2d 695, 696 (1963); Vlahos Realty Co. v. Little Boar's Head, 101 N.H. 460, 146 A.2d 257, 260 (1958); Mechem v. City of Santa Fe, 96 N.M. 668, 634 P.2d 690, 694 (1981); St. Onge v. Donovan, 71 N.Y.2d 507, 527 N.Y.S.2d 721, 522 N.E.2d 1019, 1022-23 (1988); Neiburger v. Lewis, 185 Misc. 437, 57 N.Y.S.2d 542, 544-45 (N.Y.Sup. 1945); Mastrati v. Strauss, 75 *1178 R.I. 417, 67 A.2d 29, 30-31 (1949); Nuckles v. Allen, 250 S.C. 123, 156 S.E.2d 633, 637-38 (1967); Goldberg v. City of Milwaukee Bd. of Zoning Appeals, 115 Wis.2d 517, 340 N.W.2d 558, 561-62 (Wis.App.1983). Accord, Robert M. Anderson, American Law of Zoning, § 14.29 (1968); Rathkopf, The Law of Zoning and Planning, § 38.07 (4th ed.1994); Rohan, Zoning and Land Use Control, § 43.03 (1984); Yokley, Zoning Law and Practice, § 21-2 (4th ed.1979); Phillip P. Green Jr., The Power of The Zoning Board of Adjustment to Grant Variances From the Zoning Ordinance, 29 N.C. L.Rev. 245, 278 (1951); Note, Zoning Variances, supra, 74 Harv. L.Rev. at 1398.
Perhaps the clearest explanation of the principle that the specific representations and circumstances of the successful applicant for a use variance cannot be permitted to limit the availability of the variance to successors in title is found in an opinion by the New York Court of Appeals in Dexter v. Town Board of Gates, 36 N.Y.2d 102, 365 N.Y.S.2d 506, 324 N.E.2d 870 (1975). In Dexter, the applicant successfully sought rezoning of a twelve-acre residentially-zoned tract of land to permit its development as a retail shopping center. In rezoning the property, the Town Board imposed as a condition that the rezoning would inure only to the benefit of the applicant and only for the specific use contemplated by the application. In invalidating that condition, the New York Court of Appeals distinguished between the representations made to encourage rezoning or variance grants and the proper scope of the action taken by the municipal agency:
While it is a fundamental principle of zoning that a zoning board is charged with the regulation of land use and not with the person who owns or occupies it, we recognize that customarily, as is here illustrated, when a change of zone, a variance or a special permit is sought, there is a specific project sponsored by a particular developer which is the subject of the application. As a practical matter, the application is usually predicated on a particular type structure, often accompanied by architectural renderings, for a particular use by a specific intended user. In the usual case, the application and accompanying graphic material come to constitute a series of representations frequently bolstered at the hearing by additional promises or assurances made to meet objections there raised. Throughout, attention focuses on the reputation of the applicant and his relationship to the community and the particular intended use. And all too often the administrative or legislative determination seems to turn on the identity of the applicant or intended user, rather than upon neutral planning and zoning principles.
The error in this approach, however, is lack of adherence to the fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it. While it is proper for a zoning board to impose appropriate conditions and safeguards in conjunction with a change of zone or a grant of a variance or special permit, such conditions and safeguards must be reasonable and relate only to the real estate involved without regard to the person who owns or occupies it.
[Id. at 871, 324 N.E.2d 870 (citations omitted).]
III
We hold that the 1956 variance that permitted Saks to use the residentially-zoned portion of its property for parking accessory to its department store use, and the 1968 variance that permitted Saks to expand its building into the residentially-zoned portion of its property, are applicable to and may be relied on by S & S in its proposed use of the property for a retail supermarket. That holding does not imply that all successors in interest to property that has benefitted from a use variance may assert the rights accorded by that variance, and we shall address in this *1179 opinion the considerations that may justify limitations on a successor's right to rely on a use variance. Nor are we insensitive to the contentions of respondents that S & S's proposed use may involve longer hours, more traffic, and a greater volume of business than did the Saks use.
Notwithstanding the prospect of a more intense use of the property, and the obvious distinction between the businesses carried on by a department store and by a supermarket, the factor that is decisive to our disposition is that the municipal ordinance in effect when S & S submitted its application treated the two uses identically. Pursuant to the 1993 Springfield Land Use Ordinance, the following eleven uses were permitted in the GC zone: (1) Church or other place of worship parish house, Sunday school, church school; (2) Municipal building or use; (3) Public School, park, playground or other quasi-public use; (4) Retail sales and service stores; (5) Business and professional offices; (6) Medical offices and immediate medical care facilities; (7) Bank and financial institutions; (8) Private schools; (9) Indoor movie theater; (10) Shopping centers containing any of the above permitted uses; (11) Child care center. The ordinance's definition of "Retail Sales and Services," supra, at 423, 744 A.2d at 1172, includes the "sale of goods for use or consumption off the premises, which goods are intended to meet direct consumer food, clothing ... or other needs ...." (emphasis added). That Springfield classifies both retail department stores and retail food stores under the same permitted use category in its zoning ordinance establishes beyond dispute that the two uses are sufficiently congruent to make available the variances obtained by the department store use to the proposed supermarket use.
Other considerations support that legal conclusion. Our cases recognize the applicability of the doctrine of res judicata to the decisions of boards of adjustment. See Bressman v. Gash, 131 N.J. 517, 526-27, 621 A.2d 476 (1993); Russell v. Bd. of Adj. of Tenafly, 31 N.J. 58, 65-66, 155 A.2d 83 (1959). We observed in Bressman that "[a]s a general rule, an adjudicative decision of an administrative agency `should be accorded the same finality that is accorded the judgment of a court.'" 131 N.J. at 526, 621 A.2d 476 (quoting Restatement (Second) of Judgments § 83 cmt. b (1982)). Although our application of res judicata to board of adjustment proceedings has not been rigid, Russell, supra, 31 N.J. at 65-67, 155 A.2d 83, we cannot ignore the clarity and decisiveness of the Springfield Board of Adjustment's finding in 1956 that "the residence zoned portion of the subject premises [does] not lend [itself to] the construction of houses," and its finding in 1968 that "since the store is located where it is, the area into which applicant seeks to extend the store is no longer suited for residential use."
When the Springfield Board determined in 1996 that S & S was required to seek new variances, the only variances required were the right to use the residentially-zoned portion of the property, now zoned S-75 rather than S-120, for parking (under S & S's first alternative proposal), and the right to use the residentially-zoned part of the property for a smaller portion of building area that was used by Saks (under S & S's second alternative proposal). In our view, the Board could not reasonably be permitted to contradict its earlier findings that residential development of the residentially-zoned portion of the property was inappropriate because "it would abut immediately on a business zone," that residential development would be "incompatible with the established patterns of homes in the [abutting] residential area," and that the "highest and best use" of the residential parcel would be achieved by the "integrated development" of the entire parcel for a retail commercial use. Nor could the Board justifiably rescind its 1956 conclusion that the statutory negative criteria had been satisfied in that the use of the residentially-zoned portion of the *1180 property for accessory parking would not substantially impair the zone plan or be substantially detrimental to the public good. We infer that the force of the reasoning underlying those findings has been strengthened by the passage of more than forty years during which the residentially-zoned portion of the premises continuously has been used for retail commercial purposes.
Our disposition of this appeal also is supported by our decision last term in Rogers v. Zoning Board of Adjustment of the Village of Ridgewood, 158 N.J. 11, 726 A.2d 258 (1999). In Rogers we invalidated an ordinance of the Village of Ridgewood that required all non-conforming sign structures that were accessory to primary commercial uses to be removed if the primary use was changed. The ordinance was challenged when the Village attempted to cause the removal of a non-conforming sign because a building previously occupied as an insurance office would in the future be occupied by a nail salon, both uses being permitted by the Village ordinance. Affirming the Appellate Division's invalidation of the ordinance, 309 N.J.Super. 630, 707 A.2d 1090 (1998), which in turn relied on Judge Skillman's dissent in Camara v. Board of Adjustment of Belleville, 239 N.J.Super. 51, 61, 570 A.2d 1012 (App.Div.1990), we held that the Village ordinance could not deprive the property owner of the statutory protection afforded to non-conforming accessory structures, N.J.S.A. 40:55D-68, merely because of a change from one permitted primary use to another. Because uses granted by variance enjoy a higher status under our law than do non-conforming uses, see Industrial Lessors, supra, 119 N.J.Super. at 183, 290 A.2d 737, the Township of Springfield cannot be permitted to afford less protection to the use variance for accessory parking on the S & S property than the Village of Ridgewood was required to afford to accessory non-conforming signs. In both instances, the change from one permitted use to another does not permit the municipality to terminate the accessory use, whether it be non-conforming or the result of a use variance.
We also note that the objectors' reliance on the "very upscale," "very expensive" quality of the Saks merchandise and its "dignified" atmosphere fails to take into account the possibility that Saks could have sold its property during the intervening years to less "dignified" department store retailers whose hours of operation, sales volume, and traffic patterns might have been far more intrusive on the neighborhood than was the Saks operation. That possibility of Saks' sale, or its own conversion, to a busier, more intense retail department store usewhich indisputably could rely on the earlier variancespoints up the wisdom of the warning sounded by the New York Court of Appeals in Dexter, supra, 365 N.Y.S.2d 506, 324 N.E.2d at 871, that "all too often the administrative... determination seems to turn on the identity of the applicant or intended user, rather than upon neutral planning and zoning principles." The lesson is that in granting use variances boards of adjustment must anticipate that users in the same use category as the applicant, but with different merchandising characteristics, may someday occupy the property and claim the benefit of the prior variance. The question is not whether the successor use is "essentially duplicative" of the use for which the variance was granted, as our dissenting colleagues suggest, post at 466, 744 A.2d at 1185, but rather whether, considering all relevant factors, the successor use is sufficiently similar to the variant use to afford it the benefit of the variance. In this case, the parking lot use for which the variance was granted remains unchanged, except that it will be a use accessory to a supermarket rather than a department store. The Township of Springfield, by classifying those two uses identically within its zoning ordinance, has demonstrated that the distinction does not constitute a valid basis for denying S & S the benefit of the prior variances.
*1181 We emphasize that the municipality is not powerless to address the specific problems that may be presented by S & S's proposed use of the property. Pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, municipal planning boards possess a broad reservoir of authority to review and approve site plan applications, N.J.S.A. 40:55D-50, and to insure compliance with the provisions of the local site plan ordinance. See N.J.S.A. 40:55D-41. Such review typically encompasses such issues as location of structures, vehicular and pedestrian circulation, parking, loading and unloading, lighting, screening and landscaping. We anticipate that the Springfield Planning Board, informed by the concerns of residents in the vicinity of the property, will impose appropriate conditions and restrictions on S & S's proposed development and use of the property in order to minimize any intrusion on or inconvenience to the continued use and enjoyment of those neighboring residential properties.
IV
We note that a more difficult issue suggested by this appeal, which we need not resolve, is the standard that a municipality should apply in determining what limits it may properly impose on the right of a successor in title to enjoy the benefit of a use variance granted to a prior owner of the property. That issue appears to be one of first impression, and we find no cases decided by our courts or in the courts of other states that illuminate our analysis.
That question is simplified where, as here, the successor use either is identical to the prior use or is placed in the same use category by the municipal zoning ordinance. However, if the use for which the prior variance was granted is less common than a retail or office use, and is a use not included among the permitted uses in the ordinance, the determination whether a successor in interest has the right to use the property for a different use, but one with characteristics that are comparable to the use granted by variance, may be difficult indeed. A variance to permit an indoor tennis court to operate in a residential zone may fairly be claimed by a successor in title intending to offer racquetball, squash, and an indoor pool, but the claim would be more tenuous if the next successor proposes to operate a bowling alley serving food and drink on the premises.
At its outer limits resolution of the issue may be elusive, but we reject as too restrictive our dissenting colleague's standard requiring the successor or use to be "essentially duplicative" of the variant use. Post at 446, 744 A.2d at 1175. We anticipate that local zoning boards and officials will fairly consider in their discretionary determinations the functional similarities and differences between the uses at issue, whether in accordance with sound planning principles the proposed use generally would be includable in the same use classification as the use for which the variance was granted, as well as whether the board that granted the initial variance reasonably could have anticipated that its scope could encompass the use subsequently proposed. Too restrictive an interpretation of the scope of a prior variance could diminish unreasonably the value of property assumed to have enjoyed the benefit conferred by the earlier variance. Soho Park Land Co., supra, 6 N.J. Misc. at 687, 142 A. 548. Skilled counsel to Boards of Adjustment should inform their clients that in deliberating on use variance applications recognition should be given to the prospect that successor owners may propose to use the property for uses different from but related to the use for which the variance is sought.
Finally, although we granted the motion of two Intervenors to supplement the record with the provisions of the 1999 amendments to the Springfield Zoning Ordinance, those amendments, even if they survive the challenge now pending in the Law Division, cannot affect S & S's right *1182 to develop and use the property. If the amendatory ordinance is sustained, S & S's proposed retail use would be protected by the MLUL as a nonconforming use. See N.J.S.A. 40:55D-68.
V
We reverse the judgment of the Appellate Division and remand the matter to the Township of Springfield for further proceedings consistent with this opinion.
COLEMAN, J., dissenting.
The question presented by this appeal is not whether a variance runs with the land, about which there is no debate. The Appellate Division in this case acknowledged that "use variances are not personal to the owner, but run with the land." Stop & Shop, supra, 315 N.J.Super. at 434, 718 A.2d 1218. Rather, the question is whether the new owner's intended use of the land so significantly differs from the variant use as to unreasonably affect a legitimate land use purpose. Berninger v. Board of Adjustment, 254 N.J.Super. 401, 405, 603 A.2d 954 (App.Div.1991), aff'd o.b., 127 N.J. 226, 603 A.2d 946 (1992). Unlike the majority, I would affirm the decision of the Springfield Board of Adjustment (Board). Stop & Shop (S & S) failed to present evidence showing that its intended use of the property is significantly similar in kind, nature, or use intensity to the retail merchandising conducted by Saks Fifth Avenue (Saks), in terms of the qualitative nature and intensity of use of the parking lot.
Absent proofs to the contrary, the Board could infer that S & S's intended use of the premises to conduct business activities related to the operation of a mega supermarket differs substantially from Saks's operation of an upscale retail department store. The Board also could reasonably infer that the change in use will substantially increase vehicular and pedestrian traffic and hours of operation that will have a significant and unreasonable land use impact. I wholeheartedly agree with the Appellate Division that because S & S failed to demonstrate that its proposed use does not represent an insubstantial change in the variant use, a new application to the Board was required. Stop & Shop, supra, 315 N.J.Super. at 431, 437, 718 A.2d 1218. Hence, I dissent from the majority's contrary holding.
I.
In 1956, the Board granted a use variance permitting Saks to use the rear portion of the property for a parking lot accessory to its planned retail department store. The Board found that the rear portion of the property did not "practically lend [itself to] the construction of houses." In 1968, the Board granted Saks another use variance, allowing it to extend the rear portion of its store into the residential zone. The Board found that the extension would not impair the value or use of the surrounding areas. Thus, Saks was granted a variance to operate a suburban department store with off-street parking in the rear.
S & S purchased the property in 1996 without any contingency, intending to construct and operate a mega supermarket. S & S applied to the Springfield Zoning Officer for a permit authorizing such use of the property. The officer denied the application, finding that S & S was required to apply to the Board for a new use variance. S & S appealed to the Board and sought a special question interpretation regarding the extent to which S & S was entitled to rely on the Saks variances. At the hearing, S & S presented a witness who testified that S & S intended to erect a new 85,443 square foot supermarket with seven loading docks. The existing building is 83,330 square feet with one loading dock. Three objectors testified, complaining mostly about the potential for increased truck and automobile traffic and noise.
On May 26, 1996 the Board concluded that S & S needed to apply for a new use *1183 variance. Specifically, the Board found that S & S "has not demonstrated ... that the supermarket business it intends to operate on the property ... is of a similar nature, kind or use intensity as that of the Saks operation...." S & S appealed the Board's decision to the Law Division. A group of residents, called the Colonial Association, and the Township of Millburn, were allowed to intervene as defendants.
The Law Division ruled that the Board abused its discretion, and therefore, S & S did not need a new use variance. The court noted that most of the existing building is located in the commercial zone, where supermarkets are permitted by ordinance. Regarding the rear expanded portion of the store and the entire parking lot, both of which are located in the residential zone, the court concluded that S & S's proposed uses are in conformity with the variances previously granted to Saks. The court further found that whether S & S's use of the property was qualitatively similar to Saks's use was irrelevant because the Springfield zoning ordinance does not distinguish between types of "retail and service stores."
The Appellate Division reversed the trial court's decision in a published opinion. 315 N.J.Super. 427, 437, 718 A.2d 1218 (1998). The appellate panel concluded that "a use created by a variance may not be significantly altered or intensified without further application to the board of adjustment." Id. at 434, 718 A.2d 1218. The panel noted the strong policy in favor of land use planning by ordinance rather than by variance. See also Elco v. R.C. Maxwell Co., 292 N.J.Super. 118, 126, 678 A.2d 323 (App.Div.1996). The panel acknowledged that although variances run with the land, the scope of the use permitted by the variance is limited to those uses that are essentially duplicative of the use contemplated by the original variance. The court found guidance in cases involving the expansion or enlargement of a nonconforming use. Therefore, "any proposed change in the use ... that is not negligible or insubstantial should require further consideration by the board of adjustment." Stop & Shop, supra, 315 N.J.Super. at 436-37, 718 A.2d 1218. Furthermore, the court noted that S & S presented no evidence that its proposed use was qualitatively similar to the prior use by Saks. Id. at 437, 718 A.2d 1218.
II.
The two variances granted to Saks pursuant to our present day N.J.S.A. 40:55D-70d required a showing of special reasons and satisfaction of the negative criteria. Variances should be strictly construed because they are to be granted only upon a showing of special reasons. See Burbridge v. Mine Hill Zoning Bd. of Adj., 117 N.J. 376, 384-85, 568 A.2d 527 (1990). A variance allows relief from restrictions imposed by ordinances that are otherwise uniformly applicable to the zone as a whole. Elco, supra, 292 N.J.Super. at 126, 678 A.2d 323. Variances should be granted sparingly because they "impair sound zoning" and because of "the strong legislative policy favoring land use planning by ordinance rather than by variance." Ibid.; see also N.J.S.A. 40:55D-62; Kohl v. Mayor & Council of Fair Lawn, 50 N.J. 268, 275, 234 A.2d 385 (1967).
The Board was interested in hearing evidence from S & S to permit the Board to determine whether the impact on the zone created by the intended mega supermarket business would be substantially similar to that of Saks's operation. S & S elected not to present such evidence. I believe the Board should be permitted to determine, on a case-by-case basis, whether a proposed change in the variant use is significant enough to require a new use variance. I believe that is what the Legislature intended when it provided in N.J.S.A. 40:55D-70a that appeals from a zoning officer's interpretation of a variance must be heard by the Board. The Board's concern advances legitimate land use purposes and does not represent any attempt to limit the life of the variances issued *1184 during the original grantee's ownership of the property.
The Board was likely concerned about whether S & S's mega supermarket would substantially alter its prior determination regarding the negative criteria and, therefore, cause violence to the zoning plan. Both the 1956 and 1968 variances were required because Saks wanted to expand its commercial operations into a residential zone. In other words, most of the land required for the parking lot and the store's 19,000 square foot expansion was zoned residential, then and now. Although the land use ordinance involved here permits retail stores on the commercially zoned portion of the property for off-premises consumption of the products sold, a mixed commercial use ordinance "does not signify every type of commercial use." Manalapan Realty v. Township Comm. of Manalapan, 140 N.J. 366, 385, 658 A.2d 1230 (1995). Moreover, "the law presumes that boards of adjustment ... will act fairly and with proper motives and for valid reasons." Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965).
Increase in traffic is a legitimate concern of the Board both when considering whether to approve use variances in the first instance, Price Co. v. Zoning Bd. of Adjustment of Union, 279 N.J.Super. 327, 334, 652 A.2d 784 (Law Div.1993), aff'd, 279 N.J.Super. 207, 652 A.2d 723 (App.Div. 1994), and when considering whether a new proposed use is substantially different from the variant use. S & S's need for seven loading docks for its large truckloads of merchandise in contrast to Saks's need for only one dock graphically depicts the anticipated substantial increase in traffic and hours of operation. Virtually all of the parking lot for 750 cars and about 15.5 percent of the store area are located in a residential zone. The Board is thoroughly familiar with its community and is vested with wide discretion to determine whether the proposed use would substantially alter its prior determination of the negative criteria. See Ward v. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954); Kramer, supra, 45 N.J. at 296, 212 A.2d 153.
The non-conforming use cases that focus on expanding those uses are instructive. There are two basic types of non-conforming uses. The most commonly recognized illustration is one that preexisted "the adoption of the ordinance which rendered the use or structure nonconforming." N.J.S.A. 40:55D-68. The second type of non-conforming use arises when a variance is created by a zoning board of adjustment pursuant to N.J.S.A. 40:55D-70c and d, by a planning board pursuant to N.J.S.A. 40:55D-60a, or as otherwise provided by law. See Pieretti v. Mayor & Council of Bloomfield, 35 N.J. 382, 387, 173 A.2d 296 (1961); Township of Stafford v. Zoning Bd., 299 N.J.Super. 188, 192-93, 690 A.2d 1043 (App.Div.1997), aff'd, 154 N.J. 62, 711 A.2d 282 (1998); William M. Cox, New Jersey Zoning and Land Use Administration § 11-1.2 (1999 ed.).
The fact that the controlling ordinance permitted Saks to operate a retail store in the zone was relevant only to the special reasons requirement for the section 70d use variance. The Board's position focuses on whether the proposed use will substantially affect its prior negative criteria determination. That concern is consistent with this Court's suggestion in Paruszewski v. Township of Elsinboro, 154 N.J. 45, 56-57, 711 A.2d 273 (1998), that, when an applicant seeks a certificate of non-conformity under N.J.S.A. 40:55D-68 and there exists a concern about the need to protect the integrity of either the master plan or the zoning scheme, the applicant may be required to submit proofs substantially similar to those required to satisfy the negative criteria for a section 70d variance. Under the Municipal Land Use Law separation of powers doctrine, N.J.S.A. 40:55D-20 and N.J.S.A. 40:55D-70, the issue of whether S & S's intended use of the property is essentially duplicative of the variant use lies within the Board's exclusive jurisdiction. Planning *1185 boards' authority to impose land use restrictions is generally limited to applications for subdivision, site plan, and conditional use approval. N.J.S.A. 40:55D-60; Dresner v. Carrara, 69 N.J. 237, 240-41, 353 A.2d 505 (1976).
The majority concedes that not "all successors in interest to property that has benefitted from a use variance may assert the rights accorded by that variance." Ante at 435, 744 A.2d at 1178. Yet, the majority neither articulates a standard for determining which successor does not benefit from the variance nor indicate who makes the determination. Unlike the majority, I believe the Board was entitled to require S & S to prove that its intended use of the premises would not substantially alter the impact upon the zoning plan and the surrounding community. That uniform standard is required to guide the Board. The grant of a variance is subject to the conditions of the controlling ordinance. When there is a change in the structure or use for which a variance was obtained, the issue for the Board becomes whether the structure or variant use is "essentially duplicative in all respects of that previously in existence pursuant to the variance." Industrial Lessors, Inc. v. City of Garfield, 119 N.J.Super. 181, 183, 290 A.2d 737 (App.Div.), certif. denied, 61 N.J. 160, 293 A.2d 390 (1972). Thus, I agree with the appellate panel in the present case that a change in use is significant if it is not essentially duplicative of the original variant use. Stop & Shop, supra, 315 N.J.Super. at 436, 718 A.2d 1218.
Industrial Lessors, which also involved a variance, was reaffirmed last year by this Court in the non-conforming use case of Rogers v. Zoning Bd. of Adjustment of Ridgewood, 158 N.J. 11, 726 A.2d 258 (1999). There, we approved the Appellate Division's adoption of Judge Skillman's dissenting opinion in Camara v. Board of Adjustment of Belleville, 239 N.J.Super. 51, 61, 570 A.2d 1012 (App.Div. 1990), wherein he stated that when there is a change from one permitted use to another, the only issue is whether the change in use has substantially changed the non-conforming structure. Id. at 63, 570 A.2d 1012. Similarly, where there exists a non-conforming use or variance regarding off-street parking, a change in the nature and intensity of the principle business to which the parking is accessory allows a board of adjustment to decide whether the non-conforming use or variant use should continue. See Wawa Food Market v. Planning Bd., 227 N.J.Super. 29, 37, 545 A.2d 786 (App.Div.), certif. denied, 114 N.J. 299, 554 A.2d 853 (1988).
In the present case, the upscale Saks department store is nothing like a mega supermarket. Traffic will obviously be heavier given the nature of the supermarket business. For me, that the proposed change in use is significant is almost as obvious as the difference between a restaurant and a discotheque, recognized in Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 314-15, 416 A.2d 388 (1980). To assist in determining whether the proposed change in use is essentially duplicative, the reasons for granting the variance are instructive.
When granting the 1956 use variance, the Board made it plain that it was to facilitate the construction and operation of a "suburban department store with off-street parking." Such a store was a newly emerging concept. The Board was persuaded that the variance would prevent an increase in commercial and other traffic through residential neighborhoods. It also sought to enhance property values by productively developing the general area rather than allowing haphazard and inconsistent development. The Board concluded that the variance furthered the intent and purpose of the zoning ordinance by allowing an upscale department store to operate in this suburban neighborhood.
When the use variance was approved in 1956, the Board found that the intended use was consistent with then-existing land use ordinances. It was not possible for the Board or the planner in 1956 to anticipate *1186 future potential retail uses on a scale of S & S's intended mega supermarket that would have caused the Board to deny or place specific conditions on the original use variance. Nor was it possible for the Board to foresee that, when it stated in 1956 that the residential portion of the property did not lend itself to the construction of houses, this Court would eliminate exclusionary zoning in the Mount Laurel cases, 67 N.J. 151, 336 A.2d 713 (1975) and 92 N.J. 158, 456 A.2d 390 (1983), or that the Legislature would enact the New Jersey Fair Housing Act of 1985, N.J.S.A. 52:27D-301 to -329, requiring even municipalities with virtually no undeveloped land to contribute a fair share of affordable housing.
I, therefore, reject the majority's determination that the Board's 1956 conclusion that the land used for the parking lot was unsuitable for housing is res judicata. Common sense dictates that the Mount Laurel doctrine has forced many municipalities, planning boards, and boards of adjustment, including Springfield, to revisit many earlier decisions affecting housing. Moreover, this Court has recently recognized that even in a case in which res judicata is applicable, it does not preclude a board of adjustment from considering a second application for a variance if the application contains sufficient changes. Bressman v. Gash, 131 N.J. 517, 527, 621 A.2d 476 (1993); Russell v. Board of Adjustment of Tenafly, 31 N.J. 58, 66, 155 A.2d 83 (1959).
III.
The scope of review of the Board's decision requires a reviewing court to give deference to the Board's discretionary determination. That decision should not be overturned absent a showing that it was arbitrary, capricious, or unreasonable. Bressman, supra, 131 N.J. at 529, 621 A.2d 476. Because I find the Board acted properly, I would affirm the judgment of the Appellate Division.
Justice GARIBALDI joins in this opinion.
For reversal and remandmentChief Justice PORITZ and Justices O'HERN, STEIN, LONG and VERNIERO5.
For affirmanceJustices GARIBALDI and COLEMAN2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264171/ | 886 A.2d 716 (2005)
Allen S. GABROY, M.D., Petitioner
v.
COMMONWEALTH of Pennsylvania, Medical Professional Liability Catastrophe Loss Fund and Pennsylvania Property and Casualty Insurance Guaranty Association, Respondents.
Commonwealth Court of Pennsylvania.
Argued June 6, 2005.
Decided November 15, 2005.
*717 James J. McCarthy, Conshohocken, for petitioner.
Zella Smith Anderson and Tawny K. Mummah, Harrisburg, for respondent, Medical Professional Liability Catastrophe Loss Fund.
Lise Luborsky, Philadelphia, for respondent, Pennsylvania Property and Casualty Insurance Guaranty Association.
BEFORE: COLINS, President Judge, and McGINLEY, Judge, and SIMPSON, Judge.
OPINION BY President Judge COLINS.
Before this Court in its original jurisdiction is a motion for summary judgment filed on January 26, 2005, by Allen S. Gabroy, M.D. against the Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund (hereinafter "the Fund"),[1] which in turn joined the Pennsylvania Property and Casualty Insurance Guaranty Association (hereinafter "the Guaranty Association")[2] as an additional respondent. Also before this Court are cross-motions for summary judgment filed by the Fund and by the Guaranty Association.
A medical malpractice action was brought by Dennis and Lynn Hocker on July 14, 1997, against Petitioner, Dr. Gabroy, Dr. William J. Manella, and Suburban Surgical Associates. Gabroy, Manella, *718 and Suburban Surgical each had separate basic coverage insurance with Physicians' Insurance Company (PIC) in the amount of $200,000.00 per occurrence.
On February 9, 2001, a jury found Dr. Gabroy jointly and severally liable along with Dr. Manella and Suburban Surgical Associates in the amount of $665,000.00 plus delay damages in the amount of $142,467.00 for a total judgment amount of $807,467.00. The jury found Dr. Gabroy 70% negligent, Dr. Manella 20% negligent, and Suburban Surgical 10% negligent, but the plaintiffs chose to collect the entire judgment against Dr. Gabroy. In Baker v. AC & S, Inc., 562 Pa. 290, 299, 755 A.2d 664, 669 (2000), the Supreme Court stated, "the plaintiff may recover the entire damages award from only one of the joint tortfeasors. That joint tortfeasor's recourse for paying more than its proportionate share of the verdict is to sue the nonpaying joint tortfeasors in contribution."
On January 21, 1998, PIC was declared insolvent, and the Guaranty Association paid $200,000.00 to plaintiffs on behalf of Dr. Gabroy, an amount equal to his basic coverage policy limits, and paid $100,000.00 to plaintiffs on behalf of Dr. Manella, for a total payment of $300,000.00. The Fund paid plaintiffs $334,868.00 on behalf of Dr. Gabroy, an amount equal to his percentage of causal negligence attributed by the jury, or seventy percent (70%), plus 70% of delay damages and post-judgment interest less the amounts paid by the Guaranty Association for Dr. Gabroy.
On January 26, 2005, Dr. Gabroy filed a motion for summary judgment averring that the Fund is responsible for indemnifying him up to $1 million and that therefore, he is entitled to have the Fund pay, out of the remaining unexhausted Fund statutory excess coverage, the balance of plaintiff's verdict, along with paying delay damages and post-judgment interest, above the amount paid by the Guaranty Association. Dr. Gabroy argues that because the plaintiffs are attempting to collect the entire verdict amount, not just his 70% share of causal negligence as determined by the jury, along with delay damages, solely from him, said amount is within his liability limits with the Fund and that, accordingly, the latter is responsible for paying the entire judgment in excess of his basic insurance coverage. Dr. Gabroy, in support of his position that the Fund is estopped from renouncing its duty to pay the entire judgment against a health care provider found to be a joint tortfeasor, relies upon Judge v. Allentown & Sacred Heart Hospital Center, 506 Pa. 636, 487 A.2d 817 (1985), in which the Fund asserted its right to pay a claim in its entirety and then seek contribution from a non-settling joint tortfeasor. In this regard, Dr. Gabroy avers that the Fund is estopped from assuming a position inconsistent with its position in a previous action pursuant to Philadelphia Suburban Water Co. v. Pennsylvania Public Utility Commission, 808 A.2d 1044 (Pa.Cmwlth.2002), and that the Fund's attempt to limit its indemnification obligation only to the extent of his percentage of causal negligence as determined by the jury contravenes both legislative intent and the Health Care Services Malpractice Act.[3]
On February 17, 2005, the Fund responded to Dr. Gabroy's summary judgment motion and filed a cross-motion for summary judgment. The Fund takes issue *719 with what it avers to be Dr. Gabroy's following demands: (1) to pay delay damages and post-judgment interest attributable to the insolvent primary carrier and unpaid by the Guaranty Association for Dr. Gabroy; (2) to cover $33,000, plus delay damages and post-judgment interest attributable to the insolvent primary carrier and unpaid by the Guaranty Association for Manella; and (3) to cover $66,500 plus delay damages and post-judgment interest attributable to the insolvent primary carrier and unpaid by the Guaranty Association for Suburban Surgical. The Fund contends that both the Malpractice Act and common law do not require it to pay any of the aforementioned amounts from the unexhausted Fund statutory excess coverage on Dr. Gabroy. According to the Fund, it is required to pay only for claims that exceed the health care provider's primary coverage and is not required to "drop down" to pay a basic coverage obligation of the primary carrier.
On March 9, 2005, the Guaranty Association also filed a summary judgment motion. The Guaranty Association argues that it satisfied its entire obligation by paying the $300,000.00 cap, which applies "per claimant," not "per insured" or "per policy." The Guaranty Association further contends that the Claimant is the injured plaintiff while the insured of the insolvent insurer is not, and that the $300,000.00 cap is the maximum payable for the Hocker claim, regardless of the number of insureds. In this regard, the Guaranty Association maintains that the $300,000.00 cap also applies to interest, which should not be added to the Guaranty Association's covered claim obligation unless there is a judgment against the Association itself. Finally, the Guaranty Association argues that it is not necessarily responsible for satisfying an entire judgment, but rather functions as a limited source of recovery thereby providing a partial statutory remedy following the insolvency of a property and casualty insurer. All additional unpaid amounts, avers the Guaranty Association, are the responsibility of the liquidation estate.
In addressing the present summary judgment motions before the Court, we note that analogous issues arose in Elliott-Reese v. Medical Professional Liability Catastrophe Loss Fund, 805 A.2d 1253, 1257 (Pa.Cmwlth.2002), affirmed, 574 Pa. 705, 833 A.2d 138 (2003), wherein this Court stated:
In considering the parties' respective applications, this Court notes that summary judgment may be granted only in those cases where the record clearly shows that there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). On a motion for summary judgment, the record must be viewed in a light most favorable to the opposing party, and all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994). Applying the foregoing guidelines to the matter before us, we conclude that the Respondents have successfully established that no genuine issues of material fact exist in this matter and that they are entitled to judgment as a matter of law.
These guidelines governing summary judgment motions are applicable to the present Respondents who have established that no genuine issues of material fact remain in this matter and that therefore they are entitled to judgment as a matter of law. The same issue of whether the Fund can be held responsible to provide "drop down" coverage in the event an insurer becomes insolvent was also addressed by this Court in Elliott-Reese. Therein the *720 Court referred to Storms, 779 A.2d at 563, 567 (citations omitted and emphasis added and omitted), wherein our Superior Court reaffirmed:
The courts of this Commonwealth have consistently held that "[w]here a remedy is provided by an act of assembly, the directions of the legislation must be strictly pursued and such remedy is exclusive." The instant Act [Malpractice Act] provides a clear and adequate remedy for a loss due to the insolvency of a property and casualty insurer. Some of the Act's stated purposes are: "[t]o provide a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claims and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer." 40 P.S. § 991.1801(1) ...
. . . .
[W]e must now determine whether the CAT Fund is required to "drop down" and cover the amount of the setoff so that the net cash settlement amount totals $801,358. The CAT Fund is statutorily liable to pay:
... all awards for loss or damages against a health care provider as a consequence of any professional liability action brought under this act to the extent any health care provider's share exceeds his basic insurance coverage.
40 P.S. § 1301.701(d)(amended 1996, No. 26, P.L. 776, No. 135, § 3, imd. effective).
The CAT Fund argues that it is responsible for only those sums above PPCIGA's liability limit of $200,000, and is neither required nor permitted to "drop down" and cover those sums which are statutorily offset from PPCIGA's liability. It is clear that the CAT Fund provides only excess coverage. In other words, it is liable to pay claims only when the health care provider's liability exceeds its basic coverage. Presently, Dr. O'Malley's basic coverage of $200,000 provided by PPCIGA was exceeded by the settlement amount, and we are convinced that [the] CAT Fund is liable, by statute, only for that amount of the settlement in excess of PPCIGA's $200,000 limit of liability. To require the CAT Fund to cover the amount of PPCIGA's setoff would, in effect require the CAT Fund to pay for claims below the limits of the health care provider's basic insurance coverage. This would violate the express terms of the Health Care Service Malpractice Act, 40 Pa. C.S.A. § 1301.701(d).
The determinations set forth in Storms are applicable to the present matter and are consistent with the Fund's position that it is responsible for paying only for claims that exceed the health care provider's primary coverage and is not required to "drop down" to pay a basic coverage obligation of the now insolvent primary carrier. The above rationale is also consistent with the Guaranty Association's position that it is not responsible for satisfying an entire judgment, but rather provides limited recovery following the insolvency of a property and casualty insurer.
We conclude that both the Fund and the Guaranty Association are compliant with statutory requirements and with appellate precedent as set forth in Elliott-Reese. Accordingly, the Petitioner's application for summary relief is denied, and the Respondents' applications for summary relief are granted.
ORDER
AND NOW, this 15th day of November 2005, the Petitioner's application for summary *721 judgment in the above-captioned matter is denied, and the Respondents' respective applications for summary judgment are granted.
NOTES
[1] On March 20, 2002, the Medical Professional Liability Catastrophe Loss Fund (CAT Fund) became known as the Medical Care Availability and Reduction of Error Fund, pursuant to Act 13 of 2002. The Medical Care Availability and Reduction of Error Fund is the successor in interest to the CAT Fund and will hereinafter be referred to as "the Fund." It is a statutory excess carrier providing additional excess medical malpractice insurance coverage to the extent that a health care provider's liability exceeds its basic coverage insurance in effect at the time of an occurrence. Storms v. O'Malley, 779 A.2d 548, 553-54 n. 1 (Pa.Super.2001), petition for allowance of appeal denied, 570 Pa. 688, 808 A.2d 573 (2002).
[2] The Guaranty Association was created by the Act of December 12, 1994, P.L. 1005, 40 P.S. §§ 991.1801-991.1820 (Guaranty Association Act), to provide a means of paying covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claims, and to prevent claimants or policyholders from incurring financial loss as a result of an insurer's insolvency. Storms, 779 A.2d at 554 n. 2.
[3] Act of October 15, 1975, P.L. 390, as amended, 40 P.S. §§ 1301.101-1301.1006 (Malpractice Act), repealed by the Act of March 20, 2002, P.L. 154. Now Medical Care Availability & Reduction of Error (MCARE) Act, §§ 1303.101-1303.907. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264178/ | 886 A.2d 475 (2005)
92 Conn.App. 586
STATE of Connecticut
v.
James NIXON.
No. 24960.
Appellate Court of Connecticut.
Argued September 23, 2005.
Decided December 13, 2005.
*477 Andrew S. Liskov, special public defender, for the appellant (defendant).
Troy F. Tatting, certified legal intern, with whom were Susann E. Gill, senior assistant state's attorney, and, on the brief, Mary M. Galvin, state's attorney, and Kevin S. Russo, assistant state's attorney, for the appellee (state).
SCHALLER, FLYNN and McLACHLAN, Js.
FLYNN, J.
The defendant, James Nixon, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (2).[1] The defendant was sentenced to a term of two and one-half years imprisonment, followed by two and one-half years of special parole on each count, with the sentences to run consecutively to each other, for an effective sentence of five years to serve followed by five years of special parole. On appeal, the defendant claims that (1) the conviction and sentence on two counts of assault in the second degree, arising from one continuous assault against one victim, violated his rights guaranteed by the double jeopardy clause of the fifth amendment to the United States constitution, and (2) the court improperly charged the jury on consciousness of guilt inferences. We agree with the defendant that his rights under the double jeopardy clause were violated by his conviction of two counts of assault in the second degree, and we remand the case to the trial court with direction to combine the conviction of two counts of assault and to resentence the defendant on one count of assault in the second degree.[2]
The jury reasonably could have found the following facts. The victim, Cloyde Dixon, shared a home with several roommates, one of whom was the defendant. On the evening of September 24, 2002, the defendant and another roommate were arguing. The victim, seeing that the defendant was intoxicated, told the two roommates to finish their argument downstairs so that he could get some sleep. Sometime thereafter, the victim went into the kitchen to get a glass of water, and the defendant came upstairs from the basement. *478 The defendant then attacked the victim, stabbing him twice, once in the leg and once behind his left shoulder. The two then struggled, and the victim was able to wrestle the knife from the defendant, who repeatedly told the victim that he was sorry. The defendant picked up the knife and proceeded to walk out of the back door. The entire altercation took only a couple of minutes.
Officer Tom Flaherty of the West Haven police department responded to the call of a fight at the residence of the defendant and the victim. While approaching the home, Flaherty noticed the defendant, in an intoxicated state, walking away from the scene. Flaherty handcuffed the defendant, detained him in the police car and went inside the residence, where he encountered the wounded victim. The victim identified the defendant as his attacker, and Flaherty placed the defendant under arrest.
The state, in a long form information, charged the defendant with two counts of assault in the second degree in violation of § 53a-60 (a)(2) for intentionally causing physical injury to the victim by means of a deadly weapon or dangerous instrument, two counts of assault in the second degree in violation of § 53a-60 (a)(3), for recklessly causing physical injury to the victim by means of a deadly weapon or dangerous instrument and two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a) for recklessly engaging in conduct, with extreme indifference to human life, that created a risk of serious physical injury to the victim. The state entered a nolle prosequi on all charges with the exception of the first two counts of assault in the second degree, for which the defendant was tried, convicted and ultimately sentenced. This appeal followed.
I
The defendant first claims that the state charged him in a multiplicitous information[3] and that the conviction and sentence on two counts of assault in the second degree, arising from one continuous assault perpetrated against one victim in a short period of time at the same location, violated his rights as guaranteed by the double jeopardy clause of the fifth amendment to the United States constitution and the constitution of Connecticut.[4] We agree.
The defendant concedes that his claim was not preserved at trial and seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).[5] Such review is warranted. See *479 State v. Crudup, 81 Conn.App. 248, 252, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). "A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial.... Because the claim presents an issue of law, our review is plenary." (Citations omitted.) Id.
"Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction." (Internal quotation marks omitted.) State v. D'Antonio, 274 Conn. 658, 714-15, 877 A.2d 696 (2005). Here, counts one and two of the amended long form information, the counts on which the defendant was convicted, both charged that "at the Town or City of West Haven, on or about the 24th day of September, 2002, in the area of 126 Taft Avenue, the [defendant], with intent to cause physical injury to another person, caused such injury to another person, specifically Cloyde Dixon, by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm, in violation of Connecticut General Statutes section 53a-60 (a)(2)." Although we believe that the information alone is sufficient to meet the first prong, i.e., same victim, same time period, same instrument, we also note that the evidence produced at trial demonstrated that the defendant twice stabbed the same victim, at the same place and during the same time period, with the same instrument, with the same common intent to inflict physical injury during one continuous, uninterrupted assault. Thus, the first prong of the double jeopardy analysis is met. See State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985); State v. Flynn, 14 Conn.App. 10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 217 (1988).
"Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.... It is well settled that [t]he proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute.... As [was] noted in State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985), the issue, though essentially constitutional, becomes one of statutory construction. [Our Supreme Court] recently interpreted a number of criminal statutes to determine the same issue: whether the legislature intended to allow punishment for two separate violations of the same statutory provision.... In these cases, [the Supreme Court] found that the pivotal question was whether the statutes defined crimes against the individual persons." (Citation omitted; internal quotation marks omitted.) State v. D'Antonio, supra, 274 Conn. at 715-16, 877 A.2d 696.
The state argues that the defendant's conviction and sentence on both counts of assault were proper because the jury reasonably could have found that the defendant twice intentionally stabbed the victim *480 and that "each stabbing by the defendant constituted a separate, complete and chargeable offense under ... § 53a-60 (a)(2) ...." To support this contention, the state offers several cases concerning sexual assault. Although we agree that in the context of sexual assault, the legislature has expressed a clear intention that each act of penetration be charged as a separate offense; see State v. Scott, 270 Conn. 92, 99-100, 851 A.2d 291 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1861, 161 L.Ed.2d 746 (2005);[6] we do not agree that such an intent has been demonstrated in the context of an assault in the second degree, where a single victim is stabbed twice during one continuous, uninterrupted assault occurring in a matter of a few minutes. As we explained in State v. Cassidy, 3 Conn.App. 374, 388, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985), in the context of a sexual assault, "each assault upon [a] victim involve[s] a separate act of will on the part of the defendant and a separate indignity upon the victim.... [T]he legislative intention was that each [sexual] assault should be deemed an additional offense.... To interpret the statute otherwise would be to strip it of all its sense." (Citation omitted; internal quotation marks omitted.) Id. Such is not the case here.
The state also offers as support for its argument the case of State v. Tweedy, 219 Conn. 489, 594 A.2d 906 (1991), in which the defendant was convicted, inter alia, of robbing a single victim twice within a thirty minute time period. In Tweedy, the defendant forced his way into the victim's apartment, robbed her once, sexually assaulted her and then made her walk with him to a bank to withdraw money from her account using an automatic teller machine, thereby robbing her a second time. Under the facts of Tweedy, the robberies were separated by a sexual assault, requiring a different mens rea, and they occurred in two different locations. Here, the defendant and the victim were in an altercation, which, by the victim's own testimony, occurred over the course of a few minutes, in the same location, between the same two people, resulting in the victim's twice being stabbed by the defendant.
The state, during oral argument, also argued that this case is analogous to State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997), in which the defendant was charged and convicted of two counts of failure to appear in the first degree for not appearing in court on only one occasion, but in violation of two separate bail bonds. In Garvin, our Supreme Court explained: "A bail bond is a contract between the government and the defendant and his surety.... Each bail bond or promise to appear constitutes a contract that can be forfeited, not only upon the defendant's failure to appear, but also upon breach of other conditions in the agreement.... In this case, the language of the bail bonds evidences, for each bond, a contract in which the defendant promised to appear wherever his appearance might be relevant to the charges against him, and not only at any one designated time and place. Specifically, the defendant promised to appear at any other place and time to which the charge(s) against me may be continued and in any other court to which the charge(s) against me may be transferred. The defendant executed two such bonds, one for each file, and although both bonds recited the same form language, each constituted an independent promise to appear." *481 (Citations omitted; internal quotation marks omitted.) Id., at 305-306, 699 A.2d 921.
The state contends that just as the legislature intended to punish a defendant for failing to appear on each bond, it also intended that each act of causing a physical injury during an assault be punishable as a separate assault: "Each isolated act of causing physical injury to another person is a separate and distinct crime that can be committed uno actu." The state argues that is true even where the confrontation is continuous, uninterrupted and close in time.
To clarify the state's contention, it was asked of counsel during oral argument whether, "if you and I were in a fistfight, and I hit you a hundred times with my fist ... would I be guilty of a hundred assaults?" To which counsel for the state responded: "Yes, according to the statutes...." Counsel for the state then explained: "Under § 53a-60 (a)(2), it says a person is guilty of assault in the second degree when... with intent to cause physical [injury] to another person, he causes such injury to the person by means of deadly weapon. That injury happened to the victim twice here. And if we look at the actual language of the statute, it uses the singular word, injury. It might be different if the statutes said: causes injuries to the person." We simply cannot agree with this argument, and we note that although the statute does not say "with intent to cause injuries," it also does not say "with intent to cause an injury." Black's Law Dictionary (7th Ed. 1999) defines physical injury as being synonymous with bodily injury, which is defined as "[p]hysical damage to a person's body." Our statutes also define physical injury as "impairment of physical condition or pain ...." General Statutes § 53a-3 (3). To say, for example, that our legislature intended that a defendant charged with simple assault, where ten blows were thrown, could be tried and found not guilty at one trial relating only to the first punch thrown and then, following the state's argument, subsequently charged and brought to trial nine more times, all on the basis of one fight with one victim in one place in one very short period of time, simply does not comport with our reading of the statute, nor does it comport with the history of the prosecution of similar offenses in our case law.[7] See, e.g., State v. *482 Ramos, 271 Conn. 785, 789, 860 A.2d 249 (2004) (defendant convicted, inter alia, of one count of assault in second degree after striking victim twice on forehead with twenty ounce hammer); State v. Ghere, 201 Conn. 289, 292, 513 A.2d 1226 (1986) (defendant convicted, inter alia, of one count of assault in second degree where victim struck in face with blackjack, punched couple of times in stomach and struck again in head); State v. Daniels, 83 Conn.App. 210, 212-13, 848 A.2d 1235 (defendant convicted, inter alia, of one count of assault in second degree after striking victim multiple times with butt of gun), cert. denied, 270 Conn. 913, 853 A.2d 528 (2004); State v. Bloomfield, 74 Conn.App. 674, 675-76, 813 A.2d 1052 (defendant convicted of one count of assault in first degree after stabbing victim several times), cert. denied, 263 Conn. 905, 819 A.2d 839 (2003); State v. Jordan, 64 Conn.App. 143, 147, 781 A.2d 310 (2001) (defendant convicted, inter alia, of one count of assault in third degree after striking victim in face, grabbing her by shirt, pinning her shoulders to bed, wrapping her up like a rubber band and pulling her hair); State v. Vuley, 15 Conn.App. 586, 587, 545 A.2d 1157 (1988) (defendant convicted, inter alia, of one count of assault in second degree after striking victim several times on head with pipe); State v. Rucker, 8 Conn.App. 176, 176-77, 511 A.2d 1027 (1986) (defendant charged with and convicted of one count of assault in first degree after striking victim at least three times with hammer). Further, we cannot find, nor does the state direct us to, any case in which a defendant was charged with multiple assaults, of a nonsexual nature, on facts similar to those in this case, whether involving fists, knives or other dangerous instruments.
An exhaustive review of the case law of other states reveals only one case that is on point. In State v. Pelayo, 881 S.W.2d 7 (Tenn.Crim.App.1994), the defendant was charged with, and convicted of, two counts of aggravated assault for cutting the victim first on the arm, and again a few moments later as she tried to escape, on the leg. On appeal, the Tennessee Court of Criminal Appeals reversed a conviction in part and set aside the conviction of one of the counts, holding that "[w]hile the assaults were separated by time and place ... they coalesced into an `unmistakable single act,' though separated by a few seconds and feet." Id., at 13. The court based its decision on the language of the Tennessee statute, which focused on the act of causing injury, fear or physical contact and did not indicate that the legislature intended for a defendant to be punished separately "for each blow or injury." Id. The aggravated assault statute at issue in Pelayo "deem[ed] a person guilty of aggravated assault who `[c]ommits an assault as defined in [Tenn.Code Ann.] § 39-13-101 [1991], and (A) [c]auses serious bodily injury to another; or (B) [u]ses or displays a deadly weapon....' Tenn.Code Ann. § 39-13-102(a) [1991] .... An assault occurs when conduct causes bodily injury, fear, or offensive or provocative physical contact to another person. Tenn.Code Ann. § 39-13-101(a)." State v. Pelayo, supra, at 9. Similar to the statute in Pelayo, § 53a-60(a)(2) provides that a defendant is guilty of the assault in the second degree when "he causes such injury ...."
"In order to prove assault in the second degree, the state must show that the defendant intended to cause physical injury... [which] requires the intent to bring about a physical result, i.e., injury...." (Citations omitted; internal quotation marks omitted.) State v. Stavrakis, 88 Conn.App. 371, 389, 869 A.2d 686, cert. denied, 273 Conn. 939, 875 A.2d 45 (2005). Although the state, here, argues that the legislature's use of the word "injury," in the singular, indicates a desire to punish *483 each injury as a separate offense, we, like the court in Pelayo, do not agree. Accordingly, we conclude that the defendant's rights under the double jeopardy clause were violated by his conviction of two counts of assault in the second degree resulting from conduct against one victim that was nonsexual, continuous, uninterrupted and close in time.
II
The defendant next claims that the court improperly charged the jury that it could infer a consciousness of guilt because he left the scene. The defendant argues that because he explained that he left the scene to await the arrival of the police, such an instruction was improper. The state argues that the court's instruction on consciousness of guilt was proper because the evidence adduced at trial supported such an instruction. We agree with the state.
"Our standard of review on this claim is whether it is reasonably probable that the jury was misled.... The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.) State v. Hernandez, 91 Conn.App. 169, 176-77, 883 A.2d 1, cert. denied, 276 Conn. 912, 2005 WL 3419509 (2005).
The relevant portion of the jury charge was as follows: "The conduct of a person in leaving the scene of a crime, if proven that he was in fact at the scene of a crime, may be considered in determining his guilt, since, if unexplained, it tends to prove a consciousness of guilt, or of a flight. [And] if shown, is not conclusive, nor does it raise a legal presumption of guilt, but it's to be given the weight to which the jury thinks it is entitled under the circumstances shown." (Emphasis added.) The defendant argues that because he did offer a reasonable explanation for leaving the scene, this instruction was improper because it was not unexplained.
When noting the defendant's exception to this portion of the charge, the court explained: "I think in this matter there was clear testimony that the defendant did leave the building where these alleged incidents took place. Further, there was some conflicting testimony with respect to whether the defendant was heading toward a point where he was waving the police officers down, or walking away from that point when the police officers arrived. I think, based on that, there is, again, adequate evidence for the court to insert this particular charge here." We agree.
Although the defendant explained that he left the scene to await the arrival of the police, Officer Flaherty testified that when he saw the defendant, the defendant was walking along the street, away from the scene, and was wearing boxer shorts. Flaherty, then, stopped the defendant and handcuffed him.
"Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury's consideration.... [W]hen a defendant has left the [scene] following a crime, the question is: why did he do so? This requires an assessment by the fact finder of the defendant's motivations or reasons for leaving *484 the [scene]. If there is a reasonable view of the evidence that would support an inference that he did so because he was guilty of the crime and wanted to evade apprehensioneven for a short period of timethen the trial court is within its discretion in giving such an instruction because the fact finder would be warranted in drawing that inference." (Citations omitted; emphasis in original.) State v. Scott, supra, 270 Conn. at 105-106, 851 A.2d 291.
Here, as the court explained in noting the defendant's exception to the charge on consciousness of guilt, there was testimony in contrast to the defendant's explanation that he had left the scene to await the arrival of the police, that would support an inference that the defendant was walking away from the scene and did not signal the police upon their arrival at the area. It was the function of the jury to assess the credibility of the witnesses and to credit or discredit the defendant's explanation. Here, the court's instruction to the jury that the defendant's flight "if unexplained... is not conclusive, nor does it raise a legal presumption of guilt, but it's to be given the weight to which the jury thinks it is entitled under the circumstances shown"; (emphasis added.); was proper under the circumstances, the jury being free to accept or reject the defendant's explanation.
The judgment is reversed in part and the case is remanded with direction to combine the conviction of two counts of assault in the second degree and to resentence the defendant on one count of assault in the second degree.
In this opinion the other judges concurred.
NOTES
[1] General Statutes § 53a-60 (a) provides in relevant part: "A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm...."
[2] Here, the state charged the defendant with two counts of assault in the second degree on the basis of two stab wounds. The jury found the defendant guilty for twice stabbing the victim, and the court entered individual sentences for each count. Because the combining of the convictions into one count of assault in the second degree would now be based on the facts of the entire assault, the court must resentence the defendant taking the entire assault into consideration.
[3] "Indictments charging a single offense in different counts are multiplicitous." Thirty-First Annual Review of Criminal Procedure, 90 Georgetown L.J. 1087, 1359 (2002). In contrast, "[i]ndictments charging two or more distinct offenses in a single count are duplicitous." Id., 1355.
[4] The double jeopardy clause of the fifth amendment to the United States constitution is made applicable to the states through the due process clause of the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); and the prohibition against double jeopardy that is implied in the due process and personal liberty guarantees of article first, §§ 8 and 9, of the constitution of Connecticut. See State v. Kasprzyk, 255 Conn. 186, 192, 763 A.2d 655 (2001). "[O]ur state constitution [however] does not provide greater protection [against double jeopardy] than the federal constitution...." State v. Benjamin, 86 Conn.App. 344, 348 n. 5, 861 A.2d 524 (2004). Our analysis is limited, therefore, to that of the federal constitution.
[5] "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.
[6] "Our case law has long established that each act of criminal sexual conduct, as defined by our criminal statutes, is separately punishable under those statutes and, therefore, in such cases there is no double jeopardy violation because they do not arise out of the same act or transaction." State v. Scott, supra, 270 Conn. at 99, 851 A.2d 291.
[7] "It is axiomatic that the law favors rational and sensible statutory construction, and that the courts interpret statutes to avoid bizarre or nonsensical results.... [W]e will not undertake an examination of [a statutory provision] with blinders on regarding what the legislature intended [it] to mean.... In interpreting a statute, common sense must be used.... The law favors rational and sensible statutory construction.... The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable.... When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.... We have long followed the guideline that [t]he intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute.... When one construction leads to public mischief which another construction will avoid, the latter is to be favored unless the terms of the statute absolutely forbid [it].... Thus, we will not limit our review solely to the words used in [the statute], but instead use common sense, as well as the legislative history, policy and its relationship to existing legislation and common-law principles pertaining to the same general subject matter." (Citations omitted; internal quotation marks omitted.) Whitaker v. Commissioner of Correction, 90 Conn.App. 460, 490-91, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2759476/ | Matter of Costigan v Renner (2014 NY Slip Op 08640)
Matter of Costigan v Renner
2014 NY Slip Op 08640
Decided on December 10, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 10, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
2013-09434
(Docket No. V-16300-10/12M)
[*1]In the Matter of Daniel Costigan, respondent,
vElizabeth Renner, appellant.
Steven P. Forbes, Jamaica, N.Y., for appellant.
Daniel A. Costigan, P.C., Fresh Meadows, N.Y. (Daniel Costigan, pro se, of counsel), for respondent.
David Laniado, Cedarhurst, N.Y., attorney for the children.
Appeal from an order of the Family Court, Queens County (Stephen J. Bogacz, J.), dated September 24, 2013. The order, upon, in effect, granting the father's motion to confirm a report of a Referee (Julie Stanton, Ct. Atty. Ref.), made after a hearing, and upon, in effect, denying the mother's cross motion to reject the Referee's report and for a new hearing, granted the father's petition to modify the visitation provisions of a prior order of that court dated September 28, 2012, so as to, inter alia, limit the mother to therapeutically supervised visitation with the subject children.
ORDERED that the order dated September 24, 2013, is affirmed, with costs.
"In determining visitation rights, the most important factor to be considered is the best interests of the child" (Matter of Hansen v Balkaran, 111 AD3d 827, 827). A visitation order may be modified upon a showing that there has been a change in circumstances since entry of the prior order such that modification is warranted to further the child's best interests (see id.; Matter of Abranko v Vargas, 26 AD3d 490, 491). The determination of visitation is within the sound discretion of the trial court, and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Burrell v Burrell, 101 AD3d 1193; Matter of Gilmartin v Abbas, 60 AD3d 1058; Matter of Tercjak v Tercjak, 49 AD3d 772).
Here, the Family Court's determination that a change of circumstances had occurred, warranting modification of the visitation provisions of an order of that court dated September 28, 2012, to the extent of requiring that the mother's visitation occur under therapeutic supervision, has a sound and substantial basis in the record (see Matter of Paul A. v Shaundell, LL., 117 AD3d 1346; Matter of Hansen v Balkaran, 111 AD3d at 827; Matter of Gabriel J. [Daniee A.], 100 AD3d 572; Matter of Bullinger v Costa, 63 AD3d 735; Matter of James Joseph M. v Rosana R., 32 AD3d 725, 726).
Contrary to the mother's contention, the Family Court did not condition her right to [*2]visitation on her participation in a psychiatric evaluation and therapy (see Matter of Hansen v Balkaran, 111 AD3d at 827).
The mother's remaining contentions are either unpreserved for appellate review or without merit.
HALL, J.P., COHEN, HINDS-RADIX and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 12-10-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1344983/ | 378 S.E.2d 780 (1989)
324 N.C. 409
TOWN OF BEECH MOUNTAIN, Ellen Anderson, Carl T. Browning and wife, Martha Browning, John W. Earnhardt and wife, Patricia W. Earnhardt, George E. Handley, Jr. and wife, Kathleen Handley, Douglas W. Jackson and wife, Mary Lou E. Jackson, Edward L. McKinzie and wife, Jacqueline S. McKinzie, and W.K. Mims and wife, Frances G. Mims
v.
COUNTY OF WATAUGA, James G. Coffey, Carl Fidler, Larry Stanberry, Jay L. Teams, David J. Triplett, as Commissioners of Watauga County, and Helen A. Powers, Secretary, N.C. Department of Revenue, and C.C. Cameron, Budget Officer for the State of North Carolina.
No. 409A88.
Supreme Court of North Carolina.
May 4, 1989.
*781 Smith, Patterson, Follin, Curtis, James & Harkavy by Michael K. Curtis, Greensboro, for plaintiffs-appellants.
Eggers, Eggers & Eggers by Stacy C. Eggers III, Boone, and Womble Carlyle Sandridge & Rice by Anthony H. Brett and Jean Schulte Scott, Winston-Salem, for Watauga County and Watauga County Board of Commissioners, defendants-appellees.
Lacy H. Thornburg, Atty. Gen. by Newton G. Pritchett, Jr., Asst. Atty. Gen., Raleigh, for Helen A. Powers, Secretary N.C. Dept. of Revenue, and C.C. Cameron, Budget Officer of the State of N.C., defendants-appellees.
*782 MARTIN, Justice.
On this appeal plaintiffs raise various constitutional challenges to the per capita distribution under N.C.G.S. § 105-472 of Watauga County's sales and use tax revenues. We hold that per capita distribution offends neither the state constitution nor the federal constitution and, accordingly, we affirm the Court of Appeals.
Plaintiffs in this action are the Town of Beech Mountain and certain individuals who own residential property within the town's boundaries. Plaintiff property owners include full-time residents of the town, and residents of other North Carolina counties and other states who own vacation property within the town. They filed this action seeking (1) an injunction to prohibit the county from distributing tax revenues on a per capita basis, and (2) a declaratory ruling determining that the per capita allocation of tax revenues is unconstitutional.
The trial court, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, dismissed the complaint for failure to state a claim upon which relief could be granted. The Court of Appeals affirmed, unanimously holding that the per capita method of distribution did not violate plaintiffs' constitutional rights.
The statutory scheme at issue directs the board of county commissioners in each taxing county to determine in April of each year the method of distribution to be used for local sales and use tax revenues during the following fiscal year. N.C.G.S. § 105-472 (Cum.Supp.1988). The statute lists two options: the ad valorem method and the per capita method.
The ad valorem method allocates revenues to each municipality based upon the percentage that the ad valorem taxes levied in a municipality bears to the total county ad valorem tax levy. Id. The per capita method, on the other hand, allocates to each municipality a percentage of the tax revenues equal to the percentage of the county population that the municipal population represents. Id.
Under the per capita method, a town's population is determined by calculating the number of individuals residing there for more than six months of the year. According to the complaint, 98 percent of Beech Mountain's property owners maintain their primary residence elsewhere. Thus, although plaintiffs allege that at the peak of the tourist season up to 15,000 people may actually dwell in Beech Mountain on any given day, only 239 of these individuals are considered residents for purposes of determining town population under the per capita distribution method.
For the fiscal years up to and including 1986-87, Watauga County distributed its tax revenues on an ad valorem basis. For the fiscal year 1987-88, however, the County shifted to the per capita method. Plaintiffs allege that this change resulted in a 93-percent decrease in the sales tax revenues distributed to Beech Mountain, forcing the municipality to raise city taxes and reduce services. For this reason they seek to overturn the authorizing statute on constitutional grounds.
Plaintiffs first argue that the per capita or "population" method of revenue distribution denies them equal protection under both the federal and state constitutions by creating an arbitrary distinction between those who reside in Watauga County more than six months of the year and those who reside primarily out-of-state or in other North Carolina counties. We find no merit to this assertion.
Courts traditionally employ a two-tiered analysis to resolve equal protection claims. Texfi Industries v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980). When a legislative act operates to the disadvantage of a suspect class or interferes with the exercise of a fundamental right, the upper tier or "strict scrutiny" standard is applied, requiring the government to demonstrate that the challenged statutory classification is necessary to promote a compelling governmental interest. When the claim involves neither a suspect class nor a fundamental right, the lower tier or "rationality" standard is employed. Under this standard, the government need only show that the challenged classification *783 bears some rational relationship to a legitimate governmental interest. Id.
In determining the appropriate standard of review in this particular case, we first consider whether the per capita method of revenue distribution operates to the disadvantage of a suspect class. The United States Supreme Court defines a suspect class as one which has been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio School District v. Rodriguez, 411 U.S. 1, 28, 93 S. Ct. 1278, 1294, 36 L. Ed. 2d 16, 40, reh'g denied, 411 U.S. 959, 93 S. Ct. 1919, 36 L. Ed. 2d 418 (1973).
Plaintiffs gamely attempt to characterize property owners primarily residing out-of-county or out-of-state as a politically powerless underclass. For obvious reasons, however, we decline to recognize nonresident individuals owning second homes in North Carolina resort areas as a downtrodden minority. Such a group has clearly suffered no oppression or disadvantage meriting particular consideration from the judiciary and displays none of the traditional indicia of a suspect class.
Nor do we find that plaintiffs have been denied the exercise of a fundamental right. Plaintiffs suggest that the increase in taxes and reduction in services occasioned by the per capita distribution method discourages citizens of other counties and states from purchasing property in Beech Mountain, thereby violating their right to travel.
The right to travel protects the federal interest in free interstate migration. Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). Although the right to travel is considered a fundamental right, Jones v. Helms, 452 U.S. 412, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981), restrictions based on residency do not warrant strict scrutiny merely because they impinge to some limited extent on its exercise. Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974). Only those statutory classifications which so burden the right to travel that they function, in effect, as penalties upon those migrating to a new state are subject to the strict scrutiny test. E.g., Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (one-year residency requirement to receive indigent medical care); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972) (one-year residency requirement to exercise right to vote); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (one-year residency requirement to receive welfare benefits).
Here the per capita revenue distribution method authorized by the statute does not rise to the level of a penalty upon nonresidents. All Beech Mountain property ownersresident and nonresident alike are equally affected by this method of distribution. Nothing in the record indicates that Beech Mountain's nonresident property owners pay higher taxes, receive fewer services, or are otherwise treated differently from its resident property owners. Therefore, the statute cannot be said to inhibit free interstate migration or to significantly burden the right to travel.
Because we conclude that the statute neither operates to the disadvantage of a suspect class nor interferes with the exercise of a fundamental right, we need not apply the strict scrutiny test. Instead, we focus our inquiry on whether the statute bears a rational relationship to a conceivably legitimate governmental objective. Generally speaking, this rationality test is the appropriate standard to apply to purely economic regulations such as those governing the sales and use tax. In re Assessment of Taxes Against Village Publishing Corp., 312 N.C. 211, 322 S.E.2d 155 (1984), appeal dismissed, 472 U.S. 1001, 105 S. Ct. 2693, 86 L. Ed. 2d 710 (1985).
Under the rationality standard of review, "[s]tate legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality." McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S. Ct. 1101, 1104-05, 6 L. Ed. 2d 393, 399 (1961). *784 As long as there exists a reasonable basis for the disputed classification, this Court will not interfere with the legislature's decision. Powe v. Odell, 312 N.C. 410, 322 S.E.2d 762 (1984).
Plaintiffs insist that per capita revenue distribution is not rationally related to a legitimate state interest. We disagree. The legislature could reasonably have determined that individuals dwelling within a particular municipality for more than six months of the year would be likely to purchase more items of tangible personal property than would individuals primarily residing elsewhere. Thus, as the Court of Appeals aptly concluded, "[t]he per capita method of distribution provides a reasonable means of returning revenues in an amount proportionate to those from whom they were collected." Town of Beech Mountain v. County of Watauga, 91 N.C. App. 87, 91, 370 S.E.2d 453, 455 (1988). Providing a means of allocating revenues among the municipalities of a county is a legitimate governmental objective. Plaintiffs have failed to allege facts sufficient, if proven, to overcome the presumption of constitutionality.
Plaintiffs next contend that per capita revenue distribution violates the privileges and immunities clause of the federal constitution. This argument, too, is meritless. The privileges and immunities clause "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Toomer v. Witsell, 334 U.S. 385, 395, 68 S. Ct. 1156, 1162, 92 L. Ed. 1460, 1471, reh'g denied, 335 U.S. 837, 69 S. Ct. 12, 93 L. Ed. 389 (1948). As previously noted, Beech Mountain property owners who maintain their primary residence elsewhere are treated no differently from property owners who reside in Beech Mountain year-round. The statute contains no impermissible distinction based on state citizenship. The privileges and immunities clause is simply not implicated in this case.
Because plaintiffs are not entitled to relief under any state of facts which could be proved in support of their claim, dismissal for failure to state a claim upon which relief could be granted was proper. St. Paul Fire & Marine Ins. Co. v. Freeman-White Assoc., Inc., 322 N.C. 77, 366 S.E.2d 480 (1988).
The decision of the Court of Appeals is hereby
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344987/ | 190 Ga. App. 6 (1989)
378 S.E.2d 349
SMITH
v.
THE STATE.
77147.
Court of Appeals of Georgia.
Decided January 24, 1989.
Lawrence E. Diamond, for appellant.
Lewis R. Slaton, district Attorney, Joseph J. Drolet, Richard E. Hicks, Doris L. Downs, Assistant District Attorneys, for appellee.
BENHAM, Judge.
Convicted of armed robbery, possession of cocaine, and possession of a firearm during commission of a felony, appellant contends on appeal that the evidence was insufficient to authorize his conviction and that the trial court erred in denying him the opportunity to impeach Harris, the alleged victim of the armed robbery, by testimony contrary to Harris's testimony. Our review of the record persuades us that although the evidence was sufficient to authorize the conviction, appellant's complaint with regard to the exclusion of his proffered evidence is valid and that he is entitled to a new trial.
1. The victim testified at trial that as he left a service station. *7 appellant blocked his way with a van; that when the victim got out of his car, appellant's co-indictee pointed a pistol at him, then gave the pistol to appellant who held it while the co-indictee went through the victim's pockets and took his money; and that appellant hit the victim in the head with the pistol, then shot him. Other witnesses for the State testified that a white powder found on a sifter and on a weighing device seized from appellant's van at the time of his arrest was cocaine. The evidence was sufficient to authorize a rational trier of fact to conclude that appellant was guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979); Baty v. State, 257 Ga. 371 (359 SE2d 655) (1987); Kelly v. State, 184 Ga. App. 337 (2) (361 SE2d 659) (1987).
2. The defense asserted by appellant was that he and Harris had been acquainted for a year or so and were involved together in a series of illegal ventures, that the events which Harris described as a robbery were merely a falling-out between acquaintances, and that Harris's gunshot wound on that occasion was an accident. Harris, however, denied an acquaintance with appellant, swearing they had met only once before the alleged robbery occurred. On cross-examination, Harris also denied being acquainted with two other individuals named by defense counsel. When appellant attempted to call those two individuals as witnesses for the purpose of impeaching Harris, the trial court sustained the State's objections, telling defense counsel repeatedly that Harris was not on trial. The two witnesses testified during a proffer of evidence outside the presence of the jury that they had known Harris for some time and that they had often seen Harris together with appellant using drugs and selling stolen property. The trial court ruled that testimony irrelevant and forbade appellant to question the witnesses about Harris's acquaintance and business dealings with appellant.
We disagree with the trial court's assessment of the relevance of the testimony appellant offered. Appellant's defense to the armed robbery charge was founded in large part on his contention that he and Harris were not only acquainted but were partners in crime, and that the transaction which the State characterized as a robbery was merely a disagreement between partners. Harris's denial of acquaintance with appellant was, therefore, also a denial of appellant's whole defense. Even if the issue of their acquaintance was only collateral to the issue of whether appellant robbed Harris, it was at least indirectly material. "Generally, a party may show anything which in the slightest degree affects the credit of an opposing witness.' [Cit.] `A witness may be impeached on a collateral issue which is indirectly material to the issue in the case.' [Cit.] `Evidence tendered for impeachment purposes need not be of the kind or quality required for proving the facts.' [Cit.]" Pound v. Medney, 176 Ga. App. 756, 760 (337 SE2d *8 772) (1985). See also Doby v. State, 173 Ga. App. 348 (3) (326 SE2d 506) (1985). The right of a criminal defendant to impeach the witnesses against him by presenting evidence contrary to theirs is an invaluable one. The trial court's refusal to permit appellant to impeach Harris was error. In the present case, considering that appellant's whole defense to the armed robbery charge was based on his interaction with Harris as an acquaintance and "business" associate, we cannot find that error to be harmless. Cf. Henderson v. State, 255 Ga. 687 (1) (341 SE2d 439) (1986). Appellant is entitled to a new trial on the armed robbery charge. Since the charge of possession of a firearm during the commission of a felony was expressly based on the armed robbery and could not stand without it, that conviction must also be reversed. The impeachment issue did not relate in any way, however, to the possession of cocaine charge, and appellant has shown no grounds for reversal of that conviction. The judgment below is reversed only as to the convictions for armed robbery and for possession of a firearm during commission of a felony; the conviction for possession of cocaine is affirmed.
3. In light of our holding above, appellant's third enumeration need not be addressed.
Judgment affirmed in part and reversed in part. McMurray, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344762/ | 190 Ga. App. 56 (1989)
378 S.E.2d 491
SUTTON
v.
THE STATE.
77447.
Court of Appeals of Georgia.
Decided January 26, 1989.
John O. Ellis, Jr., for appellant.
Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Barbara B. Conroy, Assistant District Attorneys, for appellee.
BEASLEY, Judge.
Defendant appeals his convictions of theft by receiving stolen property, OCGA § 16-8-7, and carrying a concealed weapon, OCGA § 16-11-126. His sole enumeration of error is that the trial court erred in requiring him to pay restitution in the amount of $3,108.
The trial court failed to enter written findings of fact concerning the factors specified in OCGA § 17-14-10, Garrett v. State, 175 Ga. App. 400, 401 (1) (333 SE2d 432) (1985), but defendant has not raised this issue which will therefore not be considered. Morrison v. State, 181 Ga. App. 400, 441 (352 SE2d 622) (1987).
The subject of theft by receiving was a truck owned by the victim *57 and insured by Prudential Insurance Company. Prudential paid the victim $6,302 for the vehicle and $450 as rental reimbursement. After the truck was recovered, it was auctioned for salvage in the amount of $3,894. The order to pay restitution awarded $250 to the victim, which was the amount of the insurance deductible, and $2,858 to Prudential, which constituted the difference between the amount it paid the victim, $6,752, and the amount it received for the truck as salvage.
Defendant contends the evidence does not support the award of restitution because: 1) there was no showing as to the market value of the truck and no basis to credit the value assigned, in that there was a large discrepancy resulting from the difference at which it was valued and the amount it brought at auction; 2) the $450 rental reimbursement was not recoverable since one cannot claim as damages both the actual market value of a vehicle and rental for loss of use; 3) there was no evidence that $250 was deducted from the amount of the victim's recovery from Prudential.
1. An employee of Prudential testified that the value assigned to the truck was based upon a consideration of the fair market value of a truck of comparable age and condition, utilizing a survey predicated on representative samples. He noted that the value received from the auction resulted from the "forced sale" nature of the transaction. We discern no violation of OCGA § 17-14-9 which limits the amount of restitution to not more than the victim's damages.
2. The $450 rental reimbursement was properly included in the amount of restitution although in a suit for damages to a vehicle one cannot ordinarily recover an amount in excess of the fair market value of the vehicle before it was damaged. Lamon v. Perry, 33 Ga. App. 248, 249 (125 S.E. 907) (1924).
"`Damages' means all damages which a victim could recover against an offender in a civil action." OCGA § 17-14-2 (2). "[T]he statutory scheme requires the court to determine what type of civil action could be maintained by the victim, and to determine what the proper measure of damages would be in such a civil action." Garrett, supra at 404. The victim could maintain an action for conversion. Under that legal theory recovery of the value of the vehicle plus hire was permitted, even though the amount for rental might exceed the value of the property converted. Ford Motor Credit Co. v. Spicer, 156 Ga. App. 541, 542 (5) (275 SE2d 116) (1980). Accord General Fin. Corp. of Ga. v. Henderson, 160 Ga. App. 242 (286 SE2d 454) (1981).
3. There was no evidence that $250 was deducted from the amount tendered to the victim by Prudential. Prudential's employee testified that $6,752 (including $6,302 as market value of the truck and $450 rental reimbursement) was paid to the victim. Although the State argues that the record reveals that there was a $250 deductible *58 under the policy and one would reasonably assume that the insurance company would not offer a gratuity to the victim, such an assumption cannot serve as a replacement for evidence. This amount is not sustainable.
The judgment imposing restitution is affirmed on condition that the amount of $250 be eliminated; otherwise reversed.
Judgment affirmed on condition. Banke, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344788/ | 259 Ga. 230 (1989)
378 S.E.2d 855
LEE
v.
THE STATE.
46255.
Supreme Court of Georgia.
Decided May 11, 1989.
Willyerd R. Collier, for appellant.
Spencer Lawton, Jr., District Attorney, J. Clayton Culp, Assistant District Attorney, Michael J. Bowers, Attorney General, Eddie *233 Snelling, Jr., Assistant Attorney General, for appellee.
HUNT, Justice.
Reginald Travis Lee was convicted by a Chatham County jury of the felony murder of James L. Jones, a professor at Armstrong State College. He received a life sentence and appeals.[1]
The jury was authorized to find the following facts with respect to the defendant's involvement in the death of Professor Jones. Lee *231 was invited by a friend, Joseph Lawton, Jr., to Jones' apartment to watch a Sunday afternoon football game and to have a few drinks. Jones was grading papers in his bedroom when he called the defendant in to "finish showing him the rest of the condominium." Then, according to Lee, the victim, Jones, made sexual advances toward the defendant and the defendant hit the victim and a struggle ensued.
The victim was overcome by Lawton and Lee who together tied his feet, his hands, and wrapped a sweater around his mouth and neck. Lawton and Lee then took the victim's stereo equipment, VCR and car keys and departed the condominium. They loaded the stolen items in the trunk of the victim's car, and drove to a vacant house near Lawton's home where they hid the stolen property, then abandoned the auto at a motel near the Talmadge Memorial Bridge, from which they threw the keys into the river.
The victim's body was found three days later. He had died from asphyxiation caused by the manner in which the sweater caused the angle of his jaw to press upon his neck. Physical evidence at the scene led to the arrest of Lawton and Lee. The defendant gave two separate inculpatory statements to the police and he testified at his separate trial concerning his involvement in the events leading to Professor Jones' death.
1. Having reviewed the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found the defendant guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).
2. Lee's principal contention is that he was entitled to a jury instruction on the lesser offense of involuntary manslaughter, OCGA § 16-5-3 (a).[2] That is, he contends, the jury could have decided he unintentionally caused Jones' death by the commission of a misdemeanor. Neither in the presentation of his requests to charge to the trial court nor in his argument to us does he specify the misdemeanor involved.[3]
The state's theory of the case is that Lee caused the victim's *232 death while Lee was in the commission of robbery by force, theft by taking, or both.[4] The element of force involved the beating and restraining of the victim. Although Lee admitted in a previous statement that he had participated in all elements of both crimes, at trial he denied committing either of the underlying felonies. He placed the responsibility for those crimes upon his co-defendant, Lawton.
Lee's trial version of his role in the physical injury to the victim may be summarized as follows: Jones made sexual advances towards him and he feared for his own safety. He and Jones tussled and eventually he knocked Jones to the floor. Lawton tied Jones' feet and Lee tied Jones' hands behind his back and then tied a sweater over Jones' mouth and around his neck. The sweater was then later tightened by Lawton or an unknown party after Lee departed.
These facts do not provide even the slightest evidence that Jones' death was caused by a misdemeanor. He died because he could not breathe and could not move either his hands or feet in order to remove the sweater or to seek help for that purpose. If Lee's conduct were unjustified and therefore unlawful, it would be felonious. If it were justified in connection with self-defense the defendant has no complaint because his position on justification was fully charged to the jury. The requested charge on involuntary manslaughter was not authorized and there was no error in refusing it.
3. The defendant's contention that he was entitled to a charge on theft by receiving stolen property as a lesser included offense of robbery by force or of theft by taking is meritless, Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980).[5]
4. The remaining enumeration of error involves a replaying of the detective's testimony regarding the defendant's out-of-court statements. We find no abuse of the trial court's discretion in replaying only what the jury asked to hear. Byrd v. State, 237 Ga. 781, 783 (229 SE2d 631) (1976).
Judgment affirmed. All the Justices concur.
NOTES
[1] The killing occurred on Sunday, October 25, 1986, and the defendant was indicted in the March Term 1987. His jury trial was held on January 11 through 13, 1988, in Chatham County and the judgment was entered on the jury's verdict on January 15. A motion for new trial was filed on February 16 and denied on July 8, 1988. His notice of appeal was filed in the trial court on July 29, 1988, the transcript was certified on September 26, 1988, and the appeal docketed in this court on September 30 and argued on January 9, 1989.
[2] The state asserts a procedural bar to this issue because the defendant waited until the morning after the charge conference to submit his request on involuntary manslaughter, contrary to the trial court's instructions. However, as we view the record, the trial court ruled on the merits of the request. We will do likewise.
[3] In his brief, defendant argues that
The jury could have found that the placing of the sweater around the mouth of the deceased by the Appellant was an unlawful act which in and of itself was not a felony and was done without an intent to kill that caused the death when it was tightened twelve (12) to thirty-six (36) hours after the accused fled from the apartment. [Emphasis supplied.]
Under this argument the intervening act of a third person caused the victim's death and it would hardly support the requested charge.
[4] The jury found Lee guilty of both robbery by force and theft by taking. The trial court merged these convictions into that for felony murder.
[5] On the contrary, theft by taking is a lesser included offense of theft by receiving. Callahan v. State, 148 Ga. App. 555, 557 (251 SE2d 790) (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1850880/ | 958 So. 2d 771 (2007)
Anthony LYONS
v.
Wayne DOHMAN.
No. 07-0053.
Court of Appeal of Louisiana, Third Circuit.
May 30, 2007.
*772 James S. Gates, Opelousas, LA, for Plaintiff/Appellant: Anthony Lyons.
Michael V. Matt, Eunice, LA, for Defendant/Appellee: Wayne Dohman.
Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
PETERS, J.
The plaintiff, Anthony Lyons, appeals the denial of his motion to set aside an order of dismissal of his action against the defendant, Wayne Dohman. For the following reasons, we affirm the trial court's decision to deny the motion to set aside the order of dismissal.
DISCUSSION OF THE RECORD
This litigation began on June 10, 2002, when Lyons filed a petition for damages, naming Dohman as defendant. The underlying claim related to the alleged conversion by Dohman of a crawfish boat owned by Lyons. Dohman answered the suit by pleadings filed June 28, 2002. Thereafter, the trial record contains no additional filings until October 25, 2005, when Lyons filed a motion to set the matter for trial. The trial court, by an order signed November 4, 2006, fixed the matter for trial on March 27, 2006.
Dohman then filed an ex parte motion on February 3, 2006, requesting that the trial court dismiss Lyons' suit based on the abandonment provisions of La.Code Civ.P. art. 561. As proof of his right to relief, Dohman attached his affidavit asserting that no action had been taken in the prosecution or defense of the litigation for a period in excess of three years. The trial court dismissed Lyons' suit by a written ex parte order signed February 7, 2006, without holding a hearing on the issue. Thereafter, on March 14, 2006, Lyons filed a motion to set aside the February 7 judgment of dismissal and to reinstate his petition. Following the July 17, 2006 hearing, the trial court rejected Lyons' motion. After the trial court executed a judgment rejecting his motion to set aside the dismissal, Lyons perfected this appeal, asserting that the trial court erred in dismissing his suit as having been abandoned.[1]
*773 OPINION
Louisiana Code of Civil Procedure Article 561(A)(1) provides in pertinent part that "[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years." Additionally, the three-year abandonment provision
shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
La.Code Civ.P. art. 561(A)(2) (emphasis added). A step taken by a plaintiff after the three-year period has run is ineffective to prevent a judgment of dismissal from being granted. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So. 2d 779. Thus, to prevent a claim from being dismissed based on abandonment pursuant to La.Code Civ.P. art. 561, a party must do three things: (1) Take some step in the prosecution or defense of the action; (2) take that step in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) take the step within three years of the last step taken by either party. Id.
Lyons acknowledges that at the time the trial court dismissed his action the trial record contained no evidence of any step in the prosecution or defense of this action between June 28, 2002 and October 25, 2005, a period in excess of three years. Nonetheless, Lyons argues that the trial court erred in dismissing his action because, on October 29, 2003, his counsel mailed a letter to the clerk of court requesting that the matter be set for trial. Although the letter was never filed in the trial record, Lyons asserts that this action was a step in the prosecution that interrupted the three-year limitation provided in La.Code Civ.P. art. 561.
Lyons attached a copy of this letter to his motion to set aside the dismissal and introduced it as evidence in support of his position at the July 17, 2006 hearing.[2] Additionally, at the hearing Lyons' trial counsel unsuccessfully attempted to obtain a stipulation from Dohman's trial counsel that he had received a courtesy copy of the October 29, 2003 letter, but Dohman's trial counsel never responded and the stipulation was never consummated.[3] Lyons called no witnesses to testify at the July 17, 2006 hearing and, thus, the only evidence of the attempt to set the matter for trial before the trial court was the copy of the October 29, 2003 letter.[4] The trial court rejected Lyons' argument that the October 29, 2003 letter constituted a step *774 in the prosecution of the action, concluding that because the letter "did not make it to the record" and because evidence of the step taken in prosecution or defense must appear in the record, the matter was abandoned.
Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Bias v. Vincent, 02-642 (La.App. 3 Cir. 12/11/02), 832 So. 2d 1153, writ denied, 03-0112 (La.3/21/03), 840 So. 2d 542. On the other hand, whether a particular act, if proven, precludes abandonment is a question of law which we review by simply determining whether the trial court's interpretative decision is correct. Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So. 2d 412, writ denied, 05-2444 (La.3/24/06), 925 So. 2d 1231; Olavarrieta v. St. Pierre, 04-1566 (La.App. 4 Cir. 5/11/05), 902 So. 2d 566, writ denied, 05-1557 (La.12/16/05), 917 So. 2d 1118.
In the matter now before us, the trial court's conclusion that, to be considered, evidence of a step in the prosecution must be found in the record, is a conclusion of law which we find was reached in error. The supreme court has long recognized that La.Code Civ.P. art. 561 "is to be liberally construed in favor of maintaining a plaintiff's suit." Clark, 785 So.2d at 785. That is to say, "abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned." Id. at 786. With the liberal interpretation of La.Code Civ.P. art. 561 in mind, the jurisprudence has established that, in certain circumstances, letters designed to move a case forward that have been delivered to a clerk of court but not filed in the record by the clerk of court may satisfy the requirement of La. Code Civ.P. art. 561. See Hargis v. Jefferson Parish, 02-72 (La.3/17/00), 755 So. 2d 891 (overruling Hargis v. Jefferson Parish, 99-971 (La.App 4 Cir. 12/8/91), 748 So. 2d 606); Ellzey v. Employers Mut. Liab. Ins. Co., 388 So. 2d 843 (La.App. 2 Cir.), writ denied, 394 So. 2d 617 (La.1980); and Zion v. Stockfieth, 616 So. 2d 1373 (La.App. 5 Cir.), writs denied, 620 So. 2d 882 (La. 1993).
Although we find that the trial court reached an erroneous legal conclusion in dismissing Lyons' action, we find that the resulting dismissal was correct. Once the trial court entered a formal order of dismissal on the basis of Dohman's affidavit and an examination of the trial record pursuant to La.Code Civ.P. art. 561(A)(2), Lyons responded by filing a motion to set aside the dismissal, as provided for in La.Code Civ.P. art. 561(A)(3). The burden was on Lyons to prove, by extrinsic evidence, a permissible cause outside the record that prevented accrual of the three-year abandonment period. Moore v. Eden Gardens Nursing Ctr., 37,362 (La. App. 2 Cir. 6/25/03), 850 So. 2d 998. That is to say, Lyons was required to present evidence for the record sufficient to set aside the trial court's prior dismissal. Hica Steel Foundry & Upgrade Co. v. Arklatex Envtl. Consultants, Inc., 39,460 (La.App. 2 Cir. 4/6/05), 899 So. 2d 802. Lyons failed in that burden of proof.
At best, Lyons established that the October 29, 2003 letter had been prepared for delivery. He failed to prove by extrinsic evidence that the letter was mailed to, delivered to, or received by the clerk of court. Indeed, there was no evidence that the letter ever left the office of Lyons' counsel. In short, there was a total absence of any proof of facts prerequisite to reaching the question of whether the letter amounted to a step in the prosecution of the case. Thus, we affirm the trial court *775 judgment, but for different reasons than those expressed by the trial court.
DISPOSITION
For the foregoing reasons we affirm the trial court's order dismissing Anthony Lyons' action against Wayne Dohman. We assess all costs of these proceedings against Anthony Lyons.
AFFIRMED.
NOTES
[1] The order was cast in the form of a judgment granting the defendant's motion to dismiss for want of prosecution. However, by the effect of law the ruling was an order denying the motion to set aside the dismissal. The abandonment itself was operative without a formal order under the provisions of La. Code Civ.P. art. 561(A)(1) and (2), but a formal order of dismissal was rendered in accordance with Subsection (A)(2).
[2] The letter was addressed to the Office of Clerk of Court for Acadia Parish, references this case, and reads:
Dear Sir/Madam:
This letter is to request that the above-captioned matter be set for trial. An answer has been filed, and the case is in a position to be tried.
Please advise if anything further is required by this Court to set for trial.
Sincerely yours,
/s/ JAMES S. GATES
JSG:ymp
cc: Mr. J. Lee Wimberly, Jr.
[3] Between October 29, 2003, and the July 17, 2006 hearing, Dohman had retained new counsel and his former counsel was not present at the hearing.
[4] Although not called as a witness, the Acadia Parish Clerk of Court was present for the hearing. He interjected himself into the proceedings and informed the trial court in open court that his office "never received" the October 29, 2003 letter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264938/ | 422 Pa. Super. 202 (1993)
619 A.2d 316
COMMONWEALTH of Pennsylvania
v.
Daniel CUMMINGS, Appellant.
Superior Court of Pennsylvania.
Submitted November 16, 1992.
Filed January 12, 1993.
*203 Daniel Cummings, appellant, pro se.
Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before CIRILLO, TAMILIA and HESTER, JJ.
HESTER, Judge:
Daniel Cummings appeals from the August 29, 1990 order denying him relief under the provisions of the Post-Conviction Relief Act. We conclude that the claim raised in appellant's second post-conviction petition may be entertained under the PCRA and under the standards announced in Commonwealth *204 v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). However, we affirm denial of PCRA relief.
On June 4, 1974, appellant was convicted by a jury of first-degree murder in connection with the shooting death of Alvin Singleton. The Supreme Court affirmed on direct appeal, Commonwealth v. Cummings, 466 Pa. 332, 334, 353 A.2d 381, 382 (1976), and described the murder as follows, "On August 23, 1972, appellant entered the residence of Alvin Singleton at 205 Kater Street, Philadelphia, and shot Singleton. The reason given by appellant [during his confession and at trial] for the shooting was the alleged rape of appellant's wife by the decedent and the decision of the police not to pursue the rape investigation."
On July 13, 1981, appellant filed a post-conviction relief petition, in which he alleged that trial counsel had been ineffective in various respects. PCHA relief was denied. On May 25, 1990, appellant filed a second petition for post-conviction relief, which was governed by the provisions of the PCRA. This petition was denied on August 29, 1990; appellant failed to file an appeal from denial of that decision. On July 8, 1992, appellant was granted the right to appeal nunc pro tunc from the August 29, 1990 order denying him PCRA relief. This appeal followed.
Appellant contends that in light of his confession to the murder, trial counsel rendered ineffective assistance when he failed to procure a psychiatric examination that may have established either that he was incompetent to stand trial or that he was innocent by reason of insanity.
This is appellant's second PCRA petition. Applying the Supreme Court's pronouncement in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), we have addressed serial petitions under the PCRA in Commonwealth v. Ryan, 394 Pa.Super. 373, 376, 575 A.2d 949, 950-51 (1990), stating:
Initially, we note that since this is appellant's second petition for post-conviction relief, it "will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, *205 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.
(Emphasis added).
Concurrent with our analysis pursuant to Lawson, we must address appellant's eligibility for relief under the provisions of the Post-Conviction Relief Act. 42 Pa.C.S. § 9543 controls appellant's eligibility for relief under the PCRA and lists four factors which must be met before such relief may be granted. One of those factors is that the allegation of error must not be waived 42 Pa.C.S. § 9543(a)(3)(i). An allegation of error is waived if it could have been raised during a previous post-conviction proceeding. 42 Pa.C.S. § 9544. Since appellant could have raised both these allegations in his prior PCHA petition, they are waived.
There are two exceptions to the waiver provision, 42 Pa.C.S. §§ 9543(a)(3)(ii) and (iii). Section 9543(a)(3)(iii) does not apply herein because this is appellant's second petition for post-conviction relief. See Commonwealth v. Ryan, supra, 394 Pa.Super. at 378, 575 A.2d at 951, wherein we stated:
In the present case, appellant could have raised all of the issues presented herein in his prior PCHA petition. Accordingly, the issues have been waived under section 9544. The waiver in this instance results from appellant's failure to raise the issues in his prior post-conviction proceedings. Since the waiver was not during pretrial, trial, post-trial or direct appeal proceedings, section 9543(a)(3)(iii) is not applicable. Accordingly, appellant has waived the issues presented herein unless 9543(a)(3)(ii) applies.
42 Pa.C.S. § 9543(a)(3)(ii) provides that an allegation of error is not waived if "the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual." Appellant's claim that trial counsel was ineffective for failing *206 to raise the defense that he was insane at the time of the shooting alleges, on its face, that appellant was innocent of the crime since he lacked the mens rea necessary for imposition of criminal culpability. Thus, appellant has overcome the bar of waiver pursuant to 42 Pa.C.S. § 9543(a)(3)(ii) and also facially has met the standards of Lawson so that we may entertain the merits of his claim. Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992) (allegations that may establish innocence of defendant may be entertained under Lawson and overcome waiver under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(3)(ii)).
We now address the merits of appellant's claim that trial counsel was ineffective for failing to assert an insanity defense.
Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel's choice of action had some reasonable basis designed to effectuate his or her client's interests. Finally, a showing must be made of how counsel's choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989). . . . The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1989). Moreover, counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989).
Commonwealth v. Mescall, 405 Pa.Super. 326, 330, 592 A.2d 687, 689 (1991).
In the present case, it is apparent that counsel's strategy at trial was to seek either acquittal or a conviction on a lesser murder charge on the grounds of provocation. Appellant's confession supported such a defense in that he said that he shot the victim because the victim raped his wife. Thus, this strategy hardly could be deemed unreasonable. As there was an obvious, reasonable grounds for trial counsel's decision to *207 defend on the basis of provocation rather than insanity, appellant's claim of ineffectiveness fails. See Commonwealth v. Savage, 529 Pa. 108, 602 A.2d 309 (1992) (where strategy of trial counsel was reasonable designed to advance defendant's interest, the fact that the strategy was not successful does not mean it was unreasonable); Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d 1196 (1991) (in order for strategic decision to be grounds for successful ineffectiveness claim, decision must be so unreasonable that no competent lawyer would have chosen it); see also Commonwealth v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988) (when counsel's strategy is to seek acquittal rather than conviction on lesser-included offense, he is not ineffective).
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345196/ | 73 S.E.2d 655 (1952)
In re NATIONAL BANK OF WEST VIRGINIA AT WHEELING et al.
No. 10426.
Supreme Court of Appeals of West Virginia.
Submitted September 23, 1952.
Decided December 16, 1952.
*657 W. F. Keefer, Asst. Pros. Atty., Ohio County, Wheeling, John R. Murphy, State Tax Commissioner's Office, Charleston, for plaintiff in error.
McCamic & Clarke, Charles McCamic and Jay T. McCamic, Wheeling, for defendants in error.
*656 GIVEN, Judge.
This proceeding involves the correctness of ad valorem tax assessments for the year 1946 against the shareholders of The National Bank of West Virginia at Wheeling, and The Morris Plan Savings and Loan Company, an industrial loan company, of Wheeling. The Assessor of Ohio County, wherein Wheeling is situated, made assessments against the taxpayers in accordance with the method formulated by the State Tax Commissioner in 1941, and who sought its application by each of the assessors of the State in making assessments against all national banks, building and loan associations, federal savings and loan associations, industrial loan companies, small loan companies and credit unions. Appeals were taken from the assessments *658 made by The Assessor of Ohio County to the county court of that county and, after a full hearing, the court revised downward the assessment as to each taxpayer. The taxpayers named, and others not involved here, appealed from the county court's order fixing the assessment values, to the Circuit Court of Ohio County. After a full hearing, upon the record made before the county court, the circuit court reversed the order of the county court and, by separate orders, fixed the amounts of the assessments of the respective taxpayers at values below the amounts fixed by the county court. Upon petition of the State Tax Commissioner, this Court granted a writ of error to the judgments of the Circuit Court of Ohio County.
The method now contended for by the State Tax Commissioner for determining the proper value of such assessments is referred to as the "book value" method, and consists of the finding of the aggregate par value of the shares of capital stock outstanding, the amount of surplus, the amount of undivided profits, the amount of interest earned but not collected, and the amount of any reserves, deducting from such aggregate the amount of interest accrued on time and savings deposits, the amount of unearned discount included in undivided profits, and the amount of the assessed value of real estate. This method was approved by the State Tax Commissioner as the only method which would result in uniform taxation throughout the State, and apparently was adopted and applied by each of the assessors of the State in determining the proper valuation for tax assessment purposes, as to the property of each taxpayer included in the classes mentioned above. Also, this method was approved by the Assessors' Association for the State, and was followed by the Assessor of Ohio County in arriving at the proper value for the 1945 and 1946 assessments of the two taxpayers here involved. The Assessor of Ohio County testified to the effect that he believed the "book value" method the proper method as applied to the 1945 and 1946 assessments; that he considered no factor other than such method in arriving at the values for such assessments; and that he was not coerced or unduly influenced by the State Tax Commissioner in adopting that method.
At the time of the 1946 assessment, The National Bank had five thousand shares of stock outstanding, of the par value of $100 per share, and The Morris Plan had outstanding one thousand shares of stock, of the par value of $100 per share. There is a stock exchange in the City of Wheeling; there are stock exchanges in certain counties in the State, but the greater number of counties in the State have no stock exchange and are not situated within any reasonable proximity to any such exchange. The stock of The National Bank is listed with the Wheeling Exchange, but the stock of The Morris Plan is not listed. In the year 1945 there were twelve shares of stock of The National Bank sold through the Wheeling Stock Exchange, each share at $165. Nineteen other shares were sold that year, but not through the exchange. The average price of the thirty-one shares was $154. From 1941 through 1945, 611 shares of The National Bank were sold, and the average price for the respective years varied from $115 in 1941 to $154 in 1945. No shares of The Morris Plan were sold through any exchange in 1945. From 1941 through 1944, 447 shares of The Morris Plan were sold, not through any stock exchange, and the average price therefor was $127. The dividends declared by The National Bank for the years 1941, through 1945, were, per share, $6, $7, $8, $8 and $10, respectively. Dividends declared for the same years by The Morris Plan were, per share, $8, $6, $6, $5 and $4, respectively.
In using the "book value" method, excluding all other factors, the assessor, for the year 1946, found the actual value of the stock of The National Bank to be $1,231,000, or $246.20 per share value. The county court, considering all relative methods and factors, arrived at a value of $1,125,000, or $225 per share value. The circuit court, upon the record made before the county court, considered "each and all the several elements of value disclosed by the record" and, after properly deducting the assessed value of real estate, found the assessment *659 value of all shares to be $871,450, or $174.29 per share value. The taxpayer contends for a value of $618,800, or $123.76 per share value, and applied only the so called "sales price" method in arriving at that amount. As to The Morris Plan for the year 1946, using the same method applied to The National Bank assessment, the assessor found the actual value of the stock to be $244,500, or $244.50 per share value. The county court found the assessment value to be $210,000, or $210 per share, and the circuit court, after deducting the assessed value of real estate, found the assessment value to be $172,110, or $172 per share value. The taxpayer contends for a value of $100,000, or $100 per share value, and arrives at that value by use of the so called "sales price" method.
For the year 1946 the tax return furnished the assessor by The National Bank, in accordance with the requirements of Code, 11-3-2, 3, shows a surplus of $500,000.00 undivided profits, amounting to $292,035.53, and interest and other income earned but not collected, in the amount of $4,926.85. The return of The Morris Plan for 1946 shows a surplus of $100,000, undivided profits in the amount of $46,868.34, and unearned discounts in the amount of $46,530.68.
For the purpose of establishing discrimination, the taxpayers here involved offered certain evidence to the effect that in arriving at assessment values of insurance companies, reserve funds are not included in the assessment value, except to the extent that such reserves exceed the amount of reserves which may be due policyholders, and because of the allowance of certain deductions to "ordinary companies other than banking institutions", such as percentages of book accounts, or intangibles questionable as to collectibility, such deductions not being allowed the class of taxpayers here involved. The evidence also shows that some of the taxpayers to whom such deductions are allowed lend money secured by mortgages or trust deed liens on real estate. It is not shown, however, to what extent such loans are made, or that such loans are actually made in competition with the businesses of the taxpayers here involved. Certain differences in the nature of the types of businesses conducted are pointed out. Taxpayers to whom such discounts are allowed do not receive banking deposits; do not rent safety deposit boxes; do not accept such property as jewelry, plate, stocks and bonds, for safekeeping; do not accept for payment at future dates drafts drawn on customers; do not issue letters of credit authorizing the owners thereof to draw drafts; do not act as trustee, assignee, general or special receiver, guardian, executor or administrator; do not act as registrar or transfer agent for corporations in registering and transferring shares of stock, bonds or other obligations; and do not purchase, sell, take charge of or receive rents and profits from real estate. Other differences in the nature of the classes of businesses will appear later in this opinion. The evidence does not show to what extent, if any, the taxpayers herein lend money on mortgage or trust deed liens. It is also shown that part of the assets of The National Bank consists of United States nontaxable securities, and it is contended that the amount of the value of such securities should be deducted from the actual value of the assets before determining the assessment value of the assets of the taxpayer.
Of special significance in this proceeding, we believe, is the language of the county court used in its order fixing the assessment values of the taxpayers here involved for the year 1946, as the order relates to the method used in arriving at the assessment values, which we quote: "* * * did thereupon hear all the evidence on behalf and against the matters set forth in said petitions, consisting of evidence showing the earnings of each of said petitioners, the dividends paid to stockholders by said petitioners, the net worth of each petitioner as of January 1, 1946, the sales price received by petitioners or petitioners stockholders from each share of stock sold prior to the said first day of January, 1946, as well as the proportion of stock sold to the total outstanding stock of each petitioner, and also considered as to what extent there was a normal and open market at the time such sales were made, *660 and also the relationship of dividends to earnings of each of said petitioners, and the Board did thereupon consider all of said evidence offered by the parties hereto, and after due and full consideration of all of such evidence, finds and declares that after deducting the assessed valuation of the real estate owned and held in the name of each of said petitioners that the following values of said shares of stock to be the true and actual value of the same for the purposes of property taxation for the year 1946. * * *."
The order of the county court for 1945 as to the assessments against the two taxpayers involved is to the same practical effect. The 1945 assessments are not involved in this proceeding, and facts relating to that year are stated only for the purpose of answering a contention of the State Tax Commissioner, to be discussed herein.
A number of errors were assigned. We believe, however, that a determination of the following propositions will afford answers to all material questions: (1) Whether the assessments for the year 1946, fixed by the circuit court, were proper assessments; (2) whether the value of nontaxable securities of The National Bank or The Morris Plan should be deducted from the value of the assets before determination of the assessment value of the shares of stock; (3) whether the facts proved establish discrimination as against either of the taxpayers involved; (4) whether the shares of stock of The National Bank were assessed "at a greater rate than that imposed upon other moneyed captial in the hands of individual citizens of such State coming into competition with the business of national banks"; and (5) whether either of the taxpayers involved has been denied due process of law.
Our State Constitution, Article X, Section 1, provides: "Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. * * *" The exceptions made in the section have no application to the questions involved in the instant proceeding. Thus, the ultimate goal is "equal and uniform" taxation. Uniformity, however, must be used in a somewhat relative sense, for no method has been devised, and probably can not be, whereby exact uniformity of taxation results to each taxpayer. In the opinion in the case of In re Tax Assessments Against Charleston Federal Savings & Loan Association, 126 W.Va. 506, 515, 30 S.E.2d 513, 517, Judge Fox uses this language: "While our State Constitution requires uniformity and equality in taxation, no one has ever believed that either could be attained as a practical matter. The constitutional provision is a statement of an ideal, and is implemented by numerous statutes, all seeking to put into practice such ideal so far as is humanly possible. But do all we can, and attempt as rigidly as we may to enforce such statutes, we will fall far short of attaining equality, uniformity and justice in levying taxes. * * *". Ample opportunity, however, is afforded a taxpayer to show that he has been taxed unjustly.
Moreover, the uniformity required relates to property of a particular class. It is not required that property, businesses or income of different classes be taxed equally and uniformly. Bankers Pocahontas Coal Co. v. County Court, W.Va., 62 S.E.2d 801; In re Tax Assessments Against Charleston Federal Savings & Loan Association, 126 W.Va. 506, 30 S.E.2d 513, affirmed Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857; Arslain v. Alderson, 126 W.Va. 880, 30 S.E.2d 533; In re Tax Assessments Against Hancock County Federal Savings and Loan Association, 125 W.Va. 426, 25 S.E.2d 543; Charleston & S. Bridge Co. v. Kanawha County Court, 41 W.Va. 658, 24 S.E. 1002.
Section 1 of Article IX of the State Constitution provides for the election of at least one, and not more than two, assessors for each county. The functions or duties of an assessor, however, are not prescribed by the Constitution. These are left solely to the will of the Legislature, save as to the constitutional mandate that taxes be equal and uniform. The assessor's duties, *661 however, are ministerial, not judicial. State ex rel. Hallanan v. Rocke, 91 W.Va. 423, 113 S.E. 647; State v. Herrald, 36 W. Va. 721, 15 S.E. 974. Code, 11-3-1, as amended, requires assessors of the several counties to annually assess all property within their respective counties, "as of the first day of January at its true and actual value; that is to say, at the price for which such property would sell if voluntarily offered for sale by the owner thereof, upon such terms as such property, the value of which is sought to be ascertained, is usually sold, and not the price which might be realized if such property were sold at a forced sale * * * ." Code, 11-5-5, as amended, contains this provision: "* * * Investment, in notes, bonds, bills, stocks and other intangible property, shall be rated by the assessor at their market price, or if there be no known market price, then at their proper value, according to the rule prescribed in this chapter." No question is raised as to the power of the Legislature to provide or require a certain method for arriving at tax assessment values. The only limitation on that power, we believe, is the constitutional mandate that the tax be equal and uniform. See In re Tax Assessments Against Charleston Federal Savings & Loan Association, 126 W.Va. 506, 30 S. E.2d 513, affirmed Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857; West Penn Power Co. v. Board of Review and Equalization, 112 W.Va. 442, 164 S.E. 862; State ex rel. Hallanan v. Rocke, 91 W.Va. 423, 113 S.E. 647; Charleston & S. Bridge Co. v. Kanawha County Court, 41 W.Va. 658, 24 S.E. 1002. Dealing specifically with assessments of shares of stock in banking institutions, national banking associations and industrial loan companies, Code, 11-3-14, as amended, reads in part: "Shares of stock in a banking institution, national banking association or industrial loan company shall be assessed at their true and actual value, according to the rules prescribed in this chapter, to the several holders of such stock in the county, district and town where such bank, company or association is located, and not elsewhere, whether such holders reside there or not. The real and actual value of such shares shall be ascertained according to the best information which the assessor may be able to obtain, whether from any return made by such bank, company or association to any officer of the state or the United States, from actual sales of the stock, from answers to questions by the assessor, as hereinafter provided, or from other trustworthy sources. The cashier, secretary or principal accounting officer of every such bank, company or association shall cause to be kept a correct list of the names and residences of all the shareholders therein, and the number of shares held by each, * * * and such cashier, secretary or officer shall answer under oath such questions as the assessor may ask him concerning the matters shown by such list, and concerning the value of such shares, * * *." Chapter 118, Acts of the Legislature, 1939, now Code, 11-3-14a, provides a different basis for assessing building and loan associations and federal savings and loan associations, in that the capital, as evidenced by investment shares and investment accounts, shall be assessed, and providing further that the assessor "shall take into consideration all earned reserves and undivided profits of any such association." But by this section, as well as by Code, 11-3-14, as amended, the assessor is directed to find the assessment values by use of the best information obtainable. See In re Tax Assessments Against Hancock County Federal Savings and Loan Association, 125 W.Va. 426, 25 S.E.2d 543. The method contended for by the State Tax Commissioner makes no distinction as to the method of assessing such associations.
National banks are subject to taxation by the States only to the extent expressly permitted by Congress. Bank v. State, 58 W.Va. 559, 52 S.E. 494, 3 L.R.A., N.S., 584, 6 Ann.Cas. 115; Farmers' and Merchants' National Bank v. Dearing, 91 U.S. 29, 23 L.Ed. 196; Van Allen v. The Assessors, 3 Wall. 573, 70 U.S. 573, 18 L.Ed. 229; First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 46 S.Ct. 135, 70 L.Ed. 295; Owensboro National Bank v. City of Owensboro, 173 U.S. 664, 19 S.Ct. 537, 43 L.Ed. 850; Charleston *662 National Bank v. Melton, C.C., 171 F. 743. The permission granted by Congress, 12 U.S.C.A. § 548, provides:
"The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income, provided the following conditions are complied with:
"1. (a) The imposition by any State of any one of the above four forms of taxation shall be in lieu of the others, except as hereinafter provided in subdivision (c) of this clause.
"(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks: Provided, That bonds, notes, or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section."
The State has elected, by enacting the provisions of Code, 11-3-14, quoted above, to tax the respective holders of the shares of stock of such banks. Having adopted this method, the State is limited by the federal statute quoted to the one method, and it can not tax such shares at a rate greater than the rate of taxation imposed upon "other moneyed capital" in competition with the business of national banks. It is significant that the shareholders of a national bank are taxed, instead of the bank itself. This is clearly pointed out in numerous decisions. In People ex rel. Union Trust Co. v. Coleman, 126 N.Y. 433, 27 N.E. 818, 12 L.R.A. 762, the Court stated:
"The capital stock of a company is one thing; that of the shareholders is another and a different thing. That of the company is simply its capital, existing in money or property or both; while that of the shareholders is representative, not merely of that existing and tangible capital, but also of surplus, of dividend earning power, of franchise, and the good-will of an established and prosperous business. The capital stock of the company is owned and held by the company in its corporate character; the capital stock of the shareholders they own and hold in different proportions as individuals. The one belongs to the corporation; the other, to the corporators. The franchise of the company, which may be deemed its business opportunity and capacity, is the property of the corporation, but constitutes no part or element of its capital stock; while the same franchise does enter into and form part, and a very essential part, of the shareholder's capital stock. While the nominal or par value of the capital stock and of the share stock are the same, the actual value is often widely different. The capital stock of the company may be wholly in cash or in property, or both, which may be counted and valued. It may have in addition a surplus, consisting of some accumulated and reserved fund, or of undivided profits, or both; but that surplus is no part of the company's capital stock, and therefore is not itself capital stock. The capital cannot be divided and distributed; the surplus may be. But that surplus does enter into and form part of the share stock, for that represents and absorbs into its own value surplus as well as capital, and the franchise in addition; so that the property of every company may consist of three separate and distinct things, which are its capital stock, its surplus, and its franchise; but these three things, several in the ownership *663 of the company, are united in the ownership of the shareholders. The share stock covers, embraces, represents all three in their totality; for it is a business photograph of all the corporate possessions and possibilities. A company also may have no surplus, but, on the contrary, a deficiency which works an impairment of its capital stock. Its actual value is then less than its nominal or par value, while yet the share of stock, strengthened by hope of the future and the support of earnings, may be worth its par, or even more. And thus the two things, the company's capital stock and the shareholder's capital stock, are essentially and in every material respect different. They differ in their character, in their elements, in their ownership, and in their values. How important and vital the difference is became evident in the effort by the state authorities to tax the property of the national banks. The effort failed, and yet the share stock in the ownership of individuals was held to be taxable as against them. The corporation and its property were shielded, but the shareholders and their property were taxed." See Bank v. State, 58 W.Va. 559, 52 S.E. 494, 3 L.R.A.,N.S., 584, 6 Ann.Cas. 115; Des Moines National Bank v. Fairweather, 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191.
With these principles and statutes in mind, we reach the contention of the State Tax Commissioner to the effect that he is vested with authority to adopt and enforce the "book value" method, defined above, for the purpose of securing equal and uniform taxation throughout the State. As previously noticed, the duties of an assessor are entirely subject to the will of the Legislature, and may be limited or transferred to another, so that if we find statutory authority granting such powers to the State Tax Commissioner, there can be no contention that any conflict exists as between the duties or powers of the assessor and the State Tax Commissioner. In other words, the will of the Legislature necessarily controls. Code, 11-1-2, as amended, defines the general duties and powers of the tax commissioner. It is his duty to see that laws concerning the assessment and collection of taxes, whether state, county, district or city, are enforced; prepare forms and books for use and guidance of assessors; inspect work of assessors; give information and "require such action as will tend to produce full and just assessments throughout the State, and the diligent collection of' all taxes; enforce penalties provided by law, "including, in any proper case, the removal of such officer, and to that end he is authorized to appear before any court", having jurisdiction. In certain instances, at least, mandamus lies at the instance of the State Tax Commissioner to require assessors to perform their duties. See State ex rel. Hallanan v. Rocke, 91 W.Va. 423, 113 S.E. 647; State v. Herrald, 36 W.Va. 721, 15 S.E. 974.
Other Code provisions increase the width and effectiveness of such powers. We think, however, that it will not be contended that the State Tax Commissioner may so construe the provisions as to authorize him to proceed in the performance of his duties in direct violation of the will of the Legislature, as expressed in some enactment. We believe that will has been clearly expressed in Code, 11-3-14, as amended, quoted in part above. The specific direction of the Legislature to the assessor is that "The real and actual value of such shares shall be ascertained according to the best information which the assessor may be able to obtain, whether" by using a certain specified method or methods, "or from other trustworthy sources." A definite objective is fixed, "real and actual value", and this is to be reached by use of "the best information" obtainable. No one method or factor is required to be given weight above other methods or factors, but all pertinent factors must be considered; otherwise, the "best information" requirement could not be satisfied. The "best information" requirement demands something more than the adoption of one method or procedure for the ascertainment of real and actual value. The words "may be able to obtain," as used in the statute, require effort on the *664 part of the assessor to obtain the best information concerning the real and actual value of the shares of stock to be assessed, not merely the adoption of some method for arbitrarily arriving at such value, notwithstanding the method adopted may, in a majority of cases, prove more accurate than any other single method.
Applying these principles to the facts relating to the 1946 assessments, we find that the assessments made by the Assessor of Ohio County were not made in conformity with the requirements of the statute. He testified to the effect that he considered no factor or evidence relating to the actual value of the shares of stock other than the "book value" thereof. Therefore, the county court, on appeal, was justified in not adopting or approving the findings of the assessor. The county court, however, on the hearing before it on appeal, considered all pertinent evidence produced and all relevant factors as detailed in its order, quoted in part above. Therefore, the assessments fixed by the county court should stand, unless there appears in the record some fact or facts which clearly establish the assessments to be erroneous. The burden of showing an assessment to be erroneous is, of course, upon the taxpayer, and proof of such fact must be clear. Bankers Pocahontas Coal Co. v. County Court, W. Va., 62 S.E.2d 801; In re Tax Assessments Against Charleston Federal Savings & Loan Association, 126 W.Va. 506, 30 S.E. 2d 513, affirmed Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857; West Penn Power Co. v. Board of Review and Equalization, 112 W.Va. 442, 164 S.E. 862; Amoskeag Savings Bank v. Purdy, 231 U.S. 373, 34 S.Ct. 114, 58 L.Ed. 274.
The circuit court apparently arrived at the assessment value of The National Bank stock by applying three methods only, "namely, the total capital assets of said Bank (without allowance for costs of liquidation and conversion into money, and without consideration of the improbability of liquidation wherein the shareholder could receive his proportionate share of the assets of the Bank in money); the value of the total and undiminished capital assets divided by the number of outstanding shares resulting in $293.40 per share; the average sale price per share for the last available year per share of $154, and the dividends paid for the last available year which were $10 per share; the largest dividend paid in the preceding five years, which capitalized at six per cent (6%) results in a yield or return basis of $166.66per share." The total per share value of each of the three methods was then divided by three, resulting in the supposed true or actual value of $204.69 per share. The true and actual value of the 5000 shares of stock was fixed at $1,023,450. From that value there was deducted the assessed value of the real estate on which taxes had been paid, resulting in an assessment value of $871,450, or $174.29 per share value. The result obtained from the factors considered by the circuit court demonstrates the inaccuracy of the per share value found, $174.29. One method resulted in a per share value of $293.40; the sales price method, $154; the dividend method, $166.66. If either method is approximately correct, the other methods clearly are erroneous. Yet the sum total of the errors is reflected in the average of the three methods. The circuit court order recites that the court took "into consideration each and all of the several elements of value disclosed by the record", but it seems apparent that no material weight was given to such "elements", as was done by the county court, and we perceive no reason why such elements or factors should not have been given proper weight. We see nothing in the record which would warrant the circuit court in reaching a result different from that of the county court as to the proper assessment value. In other words, the taxpayers failed to carry the burden of clearly establishing the assessments fixed by the county court to be erroneous, as required to do by the authorities cited above. The conclusion reached as to The National Bank assessment necessarily controls the question as to The Morris Plan assessment.
It is strongly urged in argument that the holding in the case of Des Moines National Bank v. Fairweather, 263 U.S. 103, 44 S. *665 Ct. 23, 68 L.Ed. 191, is authority for the adoption of the "book value" method. In answer, we need only point out that the holding was based upon a state statute wholly unlike the West Virginia statute, as disclosed by the opinion.
The contention of the taxpayer that the actual value of the shares of stock should be determined solely by the use of the "sales price" method must be rejected for the same reason that the "book value" method is rejected. It does not conform with the statutory requirement. We do not mean to say, of course, that the "book value" method or the "sales price" method may never reflect the actual value, or the assessment value. In certain circumstances, the assessor may be justified in determining that either method, or some other method, reflects such values. In other words, such methods may amount to the best evidence obtainable. The point is that all pertinent methods or evidence obtainable must be considered. See Board of Supervisors v. State Nat. Bank, 300 Ky. 620, 189 S.W.2d 942; In re Appeal of Smith, 1 B.T.A. 868.
We now reach the question whether the nontaxable securities held by The National Bank and The Morris Plan, as part of their assets, should be deducted from the capital assets for the purpose of arriving at the assessment value of the shares of stock. It is contended by the taxpayer that the deduction should be allowed, for the reason that otherwise such securities would be taxed, though indirectly. We think the deductions should not be made. We must keep in mind that property of national banks is not taxed. Only the shares of capital stock are taxable, and taxable only against the individual shareholders, not against the bank. The answer to the question is made clear by the language used in People ex rel. Union Trust Co. v. Coleman, quoted above. In Van Allen v. The Assessors, 3 Wall. 573, 70 U.S. 573, 18 L.Ed. 229, as appears from the headnote, it is held: "A state possesses the power to authorize the taxation of the shares of national banks in the hands of stockholders, whose capital is wholly vested in stock and bonds of the United States, under the act of Congress of June, 3, 1865." See First National Bank of Shreveport v. Louisiana Tax Commission, 289 U.S. 60, 53 S.Ct. 511, 77 L.Ed. 1030, 87 A.L.R. 840; Des Moines National Bank v. Fairweather, 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191; Charleston National Bank v. Melton, C.C., 171 F. 743.
Neither are we of the opinion that any discrimination has been shown as to either of the taxpayers involved. The contention as to discrimination rests upon proof that extends no further than to show that certain reserves of life insurance companies are not taxed, and that certain deductions are allowed by the assessor in arriving at the actual value of certain classes of intangible property of other classes of businesses, such as building and loan and small loan companies. We think a sufficient answer to the contention is that the uniformity of taxation requirement does not extend to different classes of businesses. The Legislature may permit different classes of property and different classes of businesses to be taxed at different rates. The Supreme Court of the United States, as shown in headnotes 7 and 8, Charleston Federal Savings & Loan Association v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857, held:
"7. That notes and accounts receivable of building and loan associations and Federal loan associations are assessed for state taxation at their face value, while the notes and accounts receivable of small loan companies are assessed at less than their face value, and that other personal property in the same constitutional classification of taxable property, made for the purpose of fixing limits on taxation, is assessed at a fixed fraction of its purchase value, does not establish an unconstitutional discrimination in violation of the equal protection clause of the Fourteenth Amendment where there is nothing to show intentional discrimination or that the method followed has resulted in an assessment of property at less than its true value."
"8. The equal protection clause of the Fourteenth Amendment applies only to taxation which in fact bears unequally *666 on persons and property of the same class, and mere differences in methods of assessment do not deny equal protection unless they are shown to produce such inequality." See First National Bank of Shreveport v. Louisiana Tax Commission, 289 U. S. 60, 53 S.Ct. 511, 77 L.Ed. 1030, 87 A. L.R. 840; San Francisco National Bank v. Dodge, 197 U.S. 70, 25 S.Ct. 384, 49 L.Ed. 669; Bank of Redemption v. City of Boston, 125 U.S. 60, 8 S.Ct. 772, 31 L. Ed. 689.
As to the contentions concerning the deductions allowed by the assessor, we think the following language used by the Court in its opinion in the case of In re Tax Assessments Against Charleston Federal Savings & Loan Association, 126 W.Va. 506, 30 S.E.2d 513, 517, affirmed Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857, furnishes a sufficient answer: "* * * It may be claimed that the method employed in the assessment of loan companies is discriminatory, but to sustain that claim appellants would have to concede that the securities held by such loan companies are of the same type, and as well secured as their own. * * *
"That the assets of the appellants are made up of high-grade securities will not be denied. There is and can be no reasonable doubt as to their being worth one hundred per cent of their face value. No one can question values based on securities of the Government of the United States. When we come to their chief business, that of lending money on real estate, we must consider that every loan is made upon fair appraisement of real estate; the loans are confined to a percentage of the appraised value of such real estate, in order to guard against fluctuation in value; the property on which the loans are made is insured against destruction by fire and otherwise, and, generally, every possible step taken to secure the solvency of every dollar of such assets. In addition their business is subject to the rigid and constant supervision of the State or Federal Government, or both, and their solvency at all times is a mandatory requirement for doing business. Such a class of assets is, of course, clearly distinguishable from the ordinary run of notes and accounts. Of course, notes held by individuals, firms and corporations are, sometimes, equally well secured; but when we treat them as a class such statement does not hold good."
A further contention is that since insurance companies lend money secured by liens on real estate, and that certain finance companies lend money on collateral security and discount or deal in commercial paper, the West Virginia statute relating to assessment of shares of stock of national banks, is void in that it is inconsistent with the provisions of 12 U.S.C.A. § 548, requiring that the rate of assessment of taxes against shares of stock of national banks shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state coming into competition with the business of national banks. We think the evidence falls far short of that required to establish such competition of "other moneyed capital". In First National Bank of Shreveport v. Louisiana Tax Commission, 289 U. S. 60, 53 S.Ct. 511, 77 L.Ed. 1030, 87 A. L.R. 840, as shown in headnote 5, it is held: "No such competition exists between national banks and lenders of money on real estate mortgages, loan companies, so-called Morris Plan and Morgan Plan companies, and automobile finance companies, as will render a state statute taxing national bank shares discriminatory and so violative of Rev.Stat. § 5219, where it appears that although the complainant banks hold real estate mortgages in a substantial amount as security for loans made, they are not engaged in lending money on mortgages, and the business of the loan and finance companies in the making of small loans and the financing of purchases of automobiles and household goods and is a class of business not done or desired by national banks." See First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 46 S.Ct. 135, 70 L.Ed. 295; Bank of California v. Richardson, *667 248 U.S. 476, 39 S.Ct. 165, 63 L.Ed. 372; Amoskeag Savings Bank v. Purdy, 231 U.S. 373, 34 S.Ct. 114, 58 L.Ed. 274.
The Morris Plan Savings and Loan Company contends that it is not afforded the equal protection guaranteed by the due process clauses of the State and Federal Constitutions, in that it is required to pay a higher rate of taxation than insurance and other companies to which certain discounts are allowed, but are denied The Morris Plan Savings and Loan Company. We think the question is rendered moot, however, in view of the conclusions herein announced. Also moot are the questions raised as to the refunds ordered by the circuit court to be paid unto the taxpayers involved, since no question of any refund will arise upon the ascertainment of the proper assessment values in the manner herein indicated.
A further contention of the State relates to the action of this Court in refusing a writ of error to the judgment of the Circuit Court of Ohio County, wherein assessments for the year 1945 were made against the taxpayers involved in the instant proceeding, the contention being that this Court, in refusing the writ of error, at least indirectly, approved the use of the "book value" method adopted by the Assessor of Ohio County. As has often been pointed out by the Courts, the refusal of a Court to grant a writ of error in no manner indicates the view of the Court on any question involving the merits of the case. Moreover, the order of the circuit court did not, in effect, approve the "book value" method. It affirmed the order of the county court, which court, as before pointed out, followed the requirements of the statutes, as it did in its consideration of the 1946 assessment.
By stipulation of record in this proceeding, the parties agreed that assessments against the taxpayers here involved, for the years 1947, 1948, 1949 and 1950, are to be made in accordance with the principles finally determined to be applicable in the making of the proper assessments for the year 1946. Separate orders were entered by the circuit court as to each taxpayer for each of those years, fixing the respective assessments in the manner in which the circuit court fixed the assessments for the year 1946. See First National Bank of Shreveport v. Louisiana Tax Commission, 289 U.S. 60, 53 S.Ct. 511, 77 L.Ed. 1030, 87 A.L.R. 840.
From the conclusions reached, it necessarily follows that the judgments of the Circuit Court of Ohio County, ascertaining the tax assessments of the taxpayers for the years 1946, 1947, 1948, 1949 and 1950, must be reversed, and this proceeding remanded to that court for the purpose of ascertaining the assessment values of The National Bank of West Virginia at Wheeling, and The Morris Plan Savings and Loan Company, for each of those years, in accordance with the principles herein announced.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345237/ | 87 Ga. App. 167 (1952)
73 S.E.2d 211
SHELEY
v.
SOUTHEASTERN NEWSPAPERS INCORPORATED et al.
34286.
Court of Appeals of Georgia.
Decided November 8, 1952.
*170 Harris, Chance & McCracken, for plaintiff in error.
Hull, Willingham, Towill & Norman, Curry & Curry, contra.
FELTON, J.
The defendant in error contends that neither the article nor any portion thereof could in any way be so construed as to libel the plaintiff. We do not agree. The article could be interpreted as meaning that the plaintiff's house was painted knowingly without expense to the plaintiff and at the expense of the taxpayers, or it could have been interpreted to mean that, unknown to the plaintiff and due to no fault on his part, the painting was ultimately paid for by the taxpayers. The plaintiff alleges by innuendo that the article meant the *171 former. He alleges that the article charged him with being a common cheat and swindler and so held him out to the public and thus charged him with violating § 26-7410 of the Code. "Where, however, the words are ambiguous and capable of being understood in a double sense, the one criminal and the other innocent, the plaintiff may by proper allegation aver the meaning with which he claims that they were published and the jury may find whether they were published with that meaning or not. Rubenstein v. Lee, 56 Ga. App. 49 (192 S.E. 85); Park & Iverson v. Piedmont & Arlington Life Ins. Co., 51 Ga. App. 510; Colvard v. Black, 110 Ga. App. 642 (36 S.E. 80); Beazley v. Reid, 68 Ga. 380; Michael v. Bacon, 5 Ga. App. 332 (63 S.E. 228); Holmes v. Clisby, 121 Ga. 241 (48 S.E. 934, 104 Am. St. Rep. 103)." Southeastern Newspapers v. Walker, 76 Ga. App. 57, 60 (44 S.E. 2d, 697).
Contrary to the defendant in error's contention, it was not necessary for the plaintiff to set out in his petition the report of the "Watchdog Committee." He alleges that "said false statement was not a portion of any report from the so-called `Watchdog Committee' of the grand jury or the grand jury itself, but was simply a statement of the defendants' falsely and maliciously made." This is not a conclusion but an allegation of fact, which, of course, the plaintiff must prove in order to prevail, but he is not required to allege in support of that alleged fact the evidence which he is to use to prove such allegation. If the defendants desire to show that the statement was a fair and honest report of a portion of the committee report, such would be a matter of defense.
The petition alleged libel per se and alleged an injury to the plaintiff's reputation; therefore, an allegation of special damages was unnecessary. Brandon v. Arkansas Fuel-Oil Co., 64 Ga. App. 139, 146 (12 S.E. 2d, 414); Weatherholt v. Howard, 143 Ga. 41 (4) (84 S.E. 119).
In the instant case and in like cases, malice on the part of the defendants is presumed. Horton v. Georgian Co., 175 Ga. 261 (1) (165 S.E. 443); Code, § 105-706.
The petition alleged a good cause of action for libel, and the court erred in sustaining the general demurrer and in dismissing the action.
Judgment reversed. Sutton, C.J., and Worrill, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345314/ | 487 S.E.2d 391 (1997)
226 Ga. App. 898
KLUGE
v.
RENN.
DANIELS et al.
v.
KLUGE.
TAYLOR
v.
KLUGE.
Nos. A97A0148, A97A0505 and A97A0506.
Court of Appeals of Georgia.
May 27, 1997.
Reconsideration Denied June 19, 1997.
*393 Charles A. Mullinax, Stone Mountain, Glynn R. Stepp, for Kluge.
Larry L. Duttweiler, Lawrenceville, for Renn.
Daniels & Taylor, Jerry A. Daniels, Lawrenceville, pro se.
Wayne A. Bailey, Lawrenceville, for Daniels.
Daniels & Taylor, Tony A. Taylor, Lawrenceville, pro se.
*392 ANDREWS, Chief Judge.
Mary Kluge's divorce action against Stephen Renn concluded with the entry of a consent divorce decree setting forth a settlement agreement between the parties. Thereafter, Kluge brought the present abusive litigation action pursuant to OCGA § 51-7-80 et seq. against Renn, Tony Taylor (Renn's attorney in the divorce action), Jerry A. Daniels, P.C. (the law firm that employed Taylor), and Jerry A. Daniels, individually (a member of the law firm of Jerry A. Daniels, P. C.). Kluge asserted that Renn's counterclaim against her in the divorce action alleging adultery was false and was brought with malice and without substantial justification. The trial court granted Renn's motion for summary judgment and denied summary judgment motions brought by Taylor, Jerry A. Daniels, P. C., and Daniels, individually. In Case No. A97A0148, Kluge appeals from the grant of summary judgment in favor of Renn. We granted interlocutory appeals to consider the trial court's denial of summary judgment to the remaining defendants. In Case No. A97A0505, Daniels, individually, and Jerry A. Daniels, P. C., appeal from the denial of their motions for summary judgment. In Case No. A97A0506, Taylor appeals from the denial of his motion for summary judgment.
Case No. A97A0148
1. Kluge contends the trial court erred by ruling that the settlement she entered into with Renn in the divorce action precluded her subsequent abusive litigation claim against Renn.
On March 3, 1995, during the pendency of the divorce action, Kluge sent a letter to Taylor providing notice pursuant to OCGA § 51-7-84(a) to Taylor and his client, Renn, that she considered the adultery counterclaim to constitute abusive litigation and that, unless it was withdrawn, she intended to assert a claim for abusive litigation against both of them after final termination of the divorce action. See Owens v. GeneraliU.S. Branch, 224 Ga.App. 290, 292, 480 S.E.2d 863 (1997). Renn later withdrew the adultery allegation in an amendment to his counterclaim filed on April 28, 1995. The divorce case was set for trial in June 1995.
The trial court's summary judgment order in the present case shows that, on the day the divorce case was set for trial, the parties settled all the issues in the case, except for certain contract issues which were submitted to the jury, and except for the issue of attorney fees sought by both parties in their original pleadings, which was reserved for *394 later resolution by the trial court. After the contract issues were resolved by trial, a consent decree signed and approved by counsel for both parties was entered by the trial court on June 16, 1995. The consent decree incorporated all the terms of the divorce and recited that it was entered pursuant to "an agreement among [the parties] to settle all issues in reference to this case." As to the only issue reserved for later resolution, the consent decree gave the parties 15 days to submit any request for attorney fees sought in the original pleadings.
We agree with the trial court that entry of the consent decree incorporating the parties' settlement of the case barred Kluge's subsequent action against Renn for abusive litigation pursuant to OCGA § 51-7-80 et seq. As the trial court noted in its order granting summary judgment, we reached this conclusion in similar cases where a party sought attorney fees and expenses for frivolous litigation under OCGA § 9-15-14 after the case giving rise to the claim was settled.
In Hunter v. Schroeder, 186 Ga.App. 799, 368 S.E.2d 561 (1988), we held that a consent order dismissing an action with prejudice and reciting that the dismissal embodied the parties "settlement of all claims in this action" barred a subsequent frivolous litigation claim pursuant to OCGA § 9-15-14. We held that, after final termination of a case, the Legislature did not intend to authorize one party to seek recovery of frivolous litigation expenses under § 9-15-14 against another party where the party seeking the recovery had induced the final termination by entering into a settlement of all claims in the case. Id. at 800, 368 S.E.2d 561. We concluded that the settlement, "include[d] any possible claim that might otherwise have been allowed under OCGA § 9-15-14 on the basis that [a claim or defense by a party in the prior case] lacked substantial justification." Id. at 800-801, 368 S.E.2d 561. Similarly, in Ingram v. Star Touch Communications, 215 Ga.App. 329, 450 S.E.2d 334 (1994), the party seeking attorney fees under OCGA § 9-15-14 after final termination of the case had induced a dismissal with prejudice by entering into a settlement of the case. We found that, in the absence of any indication that the § 9-15-14 claim had been reserved by the settling parties, the settlement eliminated a party's subsequent claim for frivolous litigation expenses under § 9-15-14. Id. at 330, 450 S.E.2d 334. Compare Forest Lakes Home Owners Assn. v. Green Indus., 218 Ga.App. 890, 463 S.E.2d 723 (1995).
The abusive litigation remedy created in OCGA § 51-7-80 et seq. serves a purpose similar to the procedures in OCGA § 9-15-14 for the collection of attorney fees and expenses of litigation for frivolous actions and defenses. See Hutchison v. Divorce & Custody Law Center, etc., P. C., 207 Ga.App. 421, 423, 427 S.E.2d 784 (1993). Accordingly, we find that the rationale applied to recovery under § 9-15-14 after a case has been settled also applies to recovery under § 51-7-80 et seq. after settlement. Since the consent decree embodied a settlement of the case by the parties, and there is nothing indicating reservation of the claim for abusive litigation, the trial court correctly concluded that the settlement barred Kluge's abusive litigation claim against Renn.
Case No. A97A506
2. Taylor contends the trial court erred by denying his motion for summary judgment because the adultery counterclaim against Kluge that he filed on behalf of Renn was privileged under OCGA § 51-5-8.
OCGA § 51-5-8 provides that pleadings filed in a case, which are pertinent and material to the relief sought, even if they are not legally sufficient to obtain the relief sought, and even if they are false and malicious, are not subject to a claim for libel. Stewart v. Walton, 254 Ga. 81, 82, 326 S.E.2d 738 (1985). The privilege established under OCGA § 51-5-8 does not bar a claim for abusive litigation pursuant to OCGA § 51-7-80 et seq. Phillips v. MacDougald, 219 Ga. App. 152, 464 S.E.2d 390 (1995); see Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102, 441 S.E.2d 288 (1994).
3. There is no merit to Taylor's contention that he was entitled to summary judgment solely because Kluge failed to file a written response to his motion within the time required by Superior Court Rule 6.2. *395 By failing to file a timely response, Kluge waived her right to present evidence in opposition to Taylor's motion, but this did not necessarily entitle Taylor to summary judgment. Ackerman & Co. v. Lostocco, 216 Ga.App. 242, 244, 454 S.E.2d 792 (1995). Summary judgment is granted only when it affirmatively appears from the pleadings and the evidence that the movant is entitled to prevail. Id. Moreover, even if the trial court considered evidence which was not timely filed, Taylor did not object, so this provides no basis for reversal. Wilson v. Valentine, 199 Ga.App. 244, 245, 404 S.E.2d 600 (1991).
4. Taylor contends the facts demonstrate that he did not engage in abusive litigation as Renn's attorney pursuant to OCGA § 51-7-80 et seq. because he acted without malice, with substantial justification, and in good faith in filing the adultery counterclaim based on facts supplied by Renn, in pursuing discovery in further support of the claim, and in subsequently withdrawing the adultery allegation after receiving responses to the discovery.
To establish a claim by a spouse for divorce on the ground of adultery requires evidence that, during the marriage, the spouse against whom the allegation is made voluntarily had sexual intercourse with a person other than his or her spouse. OCGA §§ 19-5-3(6); 16-6-19. The record reflects that the adultery counterclaim was filed by Taylor on behalf of Renn after Renn told Taylor, during the pendency of the divorce action, that he suspected Kluge was having an affair with another man. Taylor stated by affidavit in support of his motion for summary judgment that Renn told him he was suspicious because he and Kluge had separated after only three months of marriage, that Kluge had discontinued sexual relations with him after six weeks of marriage, that during the marriage Kluge continued a close relationship at work with a man who had sent her flowers and a diamond tennis bracelet during the time he (Renn) and Kluge were engaged to be married, that he had received reports that Kluge and the man spent an unusual amount of time together, that during the marriage Kluge went on two weekend trips refusing to tell him where she was going or how to contact her, and that when she got back from one of the trips he found a negligee he had never seen before in the trunk of her car in a "Frederick's of Hollywood" bag and she refused to discuss it.
Taylor stated that he relied on these statements by Renn as support for filing the adultery counterclaim and accompanying discovery regarding the counterclaim. In a deposition taken during the pendency of the divorce action and in another deposition taken in the present action, Renn confirmed that, sometime after his initial answer and counterclaim in the divorce action had been filed, he told Taylor about the events that raised his suspicions that Kluge was having an affair. He also confirmed that he had no personal knowledge nor had anyone told him that Kluge had engaged in an adulterous or romantic relationship with someone else during the marriage.
The record shows that on March 3, 1995, the same day the adultery counterclaim was filed, Taylor also filed interrogatories, requests for admissions, and requests for production seeking information and admissions to support the adultery allegation, including Kluge's whereabouts on one of the weekend trips. Kluge responded to the interrogatories and requests for admissions in about a week, admitting that she knew the man at issue through a business relationship but denying that she had any kind of adulterous or romantic relationship with him. Kluge also provided the name and location of a girl friend with whom she stayed on the weekend at issue. On March 3, 1995, at the time she received the counterclaim and responded to the discovery, Kluge also sent Renn and Taylor the notice required pursuant to OCGA § 51-7-84(a) stating that she considered the adultery counterclaim to be abusive litigation and that, unless it was withdrawn, she would bring an abusive litigation claim against both of them after the divorce action was terminated. Kluge responded to Renn's production request related to the adultery allegation at Renn's deposition taken on April 14, 1995. After Renn testified during the deposition that he had discovered no further support for the adultery allegation, Taylor stated on the deposition record that *396 he and his client did not intend to further pursue the adultery allegation and that an amendment would be filed to the counterclaim deleting the adultery claim. On April 28, 1995, Taylor filed an amendment to Renn's counterclaim deleting the allegation of adultery.
OCGA § 51-7-81 provides as follows: "Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification." In this context, a "`[c]ivil proceeding' includes any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other claim at law or in equity." OCGA § 51-7-80(1). "`Malice' means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based." OCGA § 51-7-80(5). "`Without substantial justification,' when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that such civil proceeding, claim, defense, motion, appeal, or other position is: (A) Frivolous; (B) Groundless in fact or in law; or (C) Vexatious." OCGA § 51-7-80(7).
As Renn's attorney in the divorce action, Taylor is a person within the meaning of OCGA §§ 51-7-81 and 51-7-80(6) who could be liable for abusive litigation for taking an active part in the initiation, continuation, or procurement of the adultery counterclaim filed on behalf of Renn against Kluge if in so doing Taylor acted with malice and without substantial justification. See Ibrahim v. Talley & Assoc., P. C., 214 Ga.App. 609, 611-612 (448 S.E.2d 707) (1994); Kirsch v. Meredith, 211 Ga.App. 823, 440 S.E.2d 702 (1994). OCGA § 51-7-82(b) provides, however, that "[i]t shall be a complete defense to any claim for abusive litigation that the person against whom a claim of abusive litigation is asserted acted in good faith; provided, however, that good faith shall be an affirmative defense and the burden of proof shall be on the person asserting the actions were taken in good faith." Pursuant to OCGA § 51-7-80(4) "`Good faith,' when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that to the best of a person's or his or her attorney's knowledge, information, and belief, formed honestly after reasonable inquiry, that such civil proceeding, claim, defense, motion, appeal, or other position is well grounded in fact and is either warranted by existing law or by reasonable grounds to believe that an argument for the extension, modification, or reversal of existing law may be successful."
In response to Kluge's abusive litigation claim, Taylor asserted the affirmative defense of good faith in his answer and in his motion for summary judgment. Taylor contends that, based on the information given to him by Renn, he acted in good faith as Renn's attorney in initiating the adultery counterclaim, in continuing the counterclaim while pursuing discovery related to it, and in subsequently withdrawing the adultery allegation after discovery developed nothing further in support of the claim.[1] As defined under OCGA § 51-7-80(4), the "good faith" defense asserted by Taylor in reference to the adultery counterclaim "means that to the best of [Taylor's] knowledge, information, and belief, formed honestly after reasonable inquiry, [the adultery counterclaim was] well grounded in fact and [thus] warranted by existing law. ..." Although good faith is defined in subjective terms to the extent it refers "to the best of a person's or his or her attorney's knowledge, information, and belief, formed honestly ..." an attorney cannot establish that he or she acted in good faith by simply asserting a subjective, honest belief that a claim was well grounded in fact and warranted by existing law or by reasonable grounds to believe that an argument for *397 changing the law may be successful. The "reasonable inquiry" requirement of § 51-7-80(4) is an objective good faith requirement which qualifies the definition and imposes a duty on attorneys to conduct a reasonable inquiry into the facts and law prior to initiating, continuing, or procuring a claim on behalf of a client. Accordingly, the applicable standard is what would be objectively reasonable for a competent attorney under the circumstances. See 5A C. Wright & A. Miller, Federal Practice & Procedure, § 1335 (2nd ed. 1990) (discussing the standard of "reasonableness under the circumstances" used to measure attorneys' compliance with similar statutory language in Rule 11 of the Federal Rules of Civil Procedure).
The fact that the adultery counterclaim, when filed, was not supported by facts sufficient to establish the claim does not demand a finding that Kluge has a viable abusive litigation claim against Taylor for filing it as Renn's attorney. An attorney need not under all circumstances have enough facts to establish a claim prior to filing. The goal of OCGA § 51-7-80 et seq. is to deter and compensate for damages caused by the initiation, continuation, or procurement of abusive, frivolous, or groundless claims, not to penalize claims which have some arguable support but need discovery or investigation to be developed. Compare Ferguson v. City of Doraville, 186 Ga.App. 430, 434-437, 367 S.E.2d 551 (1988). It may be reasonable under the circumstances for an attorney, after satisfying the reasonable inquiry requirement, to file a claim on behalf of a client based on facts which may not be sufficient to establish a triable issue, but do supply at least a colorable inference in support of the claim, and then pursue discovery or investigation to confirm whether or not a factual basis can be developed for continuing the claim. See Donaldson v. Clark, 819 F.2d 1551, 1561 (11th Cir.1987) (the requirement of Rule 11 of the Federal Rules of Civil Procedure, which imposes a similar requirement that attorneys make a "reasonable inquiry" into the facts and law prior to filing a pleading, "does not preclude plaintiffs from establishing the merits of claims through discovery" and is not intended to discourage an attorney's pursuit of arguable factual or legal theories). Under such circumstances, the attorney's continuing duty under the reasonable inquiry requirement is to pursue discovery or investigation, and, if sufficient support is not developed after a reasonable opportunity for discovery or investigation, then dismiss, withdraw, abandon, or discontinue the claim. Of course, an abusive litigation claim would be appropriate where an attorney files a claim on behalf of a client without any factual or legal support or supported only by guess or sheer speculation, or in cases where a claim having arguable factual or legal support is filed in good faith for the purpose of pursuing discovery, but continued by the attorney after discovery reveals there is no basis for the claim.
In the present case, the facts relied upon by Taylor for filing the adultery counterclaim were provided to him by his client during the pendency of the divorce litigation initiated by Kluge. There is nothing in the record showing that Taylor had any reason to question the truth of the facts. Although the facts clearly did not establish the adultery allegation, they were sufficient for a reasonable attorney to conclude that a colorable inference existed in support of the adultery claim which required investigation or discovery to be developed. Given the time constraints imposed during the pendency of the litigation, and the nature of the claim, it was not feasible for Taylor to conduct a pre-filing investigation. It was reasonable inquiry under the circumstances for Taylor to rely on the facts he obtained from his client, file the adultery counterclaim, and immediately pursue discovery to develop the claim. The record shows that, along with the adultery counterclaim filed on March 3, 1995, Taylor also filed discovery in relation to the counterclaim. Upon receiving Kluge's final discovery response at Renn's deposition on April 14, 1995, and concluding that discovery had generated no additional support for the adultery claim, Taylor announced on the record at the deposition that Renn was abandoning the claim. No further action was taken on the adultery claim, and it was withdrawn on April 28, 1995, by amendment to the pending counterclaim.
*398 Based on this record, we conclude that Taylor acted reasonably under the circumstances, established a good faith defense, and was not liable on the abusive litigation claim. OCGA § 51-7-82(b). "Although `the question of reasonableness and unreasonableness is most often a jury issue, in plain and palpable cases the determination may be made by the court.' [Cit.]" Pakwood Indus. v. John Galt Assoc., 219 Ga.App. 527, 529, 466 S.E.2d 226 (1995). The trial court erred in denying Taylor's motion for summary judgment.[2] See Ibrahim, supra at 610-612, 448 S.E.2d 707; compare Kirsch v. Jones, 219 Ga.App. 50, 52-53, 464 S.E.2d 4 (1995).
Case No. A97A0505
5. Based on our conclusion in Case No. A97A0506 that Kluge had no viable claim for abusive litigation, there was no basis for concluding that Jerry A. Daniels, P.C. and Jerry A. Daniels, individually were liable. We need not address the specific enumerations of error raised by these parties.
Judgment affirmed in Case No. A97A0148. Judgment reversed in Case Nos. A97A0505 and A97A0506.
McMURRAY, P.J., and SMITH, J., concur.
NOTES
[1] Although Taylor's enumeration of error and argument assert he took these actions without malice and with substantial justification, it is apparent from a review of the record that the essence of Taylor's contention is that he was entitled to summary judgment for acting in good faith. Where the error sought to be asserted is apparent from a review of the record, we will consider it even though it is not clearly enumerated. OCGA § 5-6-48(f).
[2] Because Taylor did not raise the issue, we do not address whether or not he could have asserted the settlement between Renn and Kluge in the divorce action as a defense to the abusive litigation claim against him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345317/ | 202 Kan. 399 (1969)
449 P.2d 545
STATE OF KANSAS, Appellee,
v.
MICHAEL JOSEPH McDERMOTT, Appellant.
No. 45,191
Supreme Court of Kansas.
Opinion filed January 25, 1969.
John F. Stites, of Manhattan, argued the cause, and Richard D. Rogers and Donald R. Hill, of Manhattan, were with him on the brief for appellant.
John C. Fay, County Attorney, argued the cause, and Robert C. Londerholm, Attorney General, was with him on the brief for appellee.
The opinion of the court was delivered by
FROMME, J.:
Michael Joseph McDermott was convicted of first degree murder. A jury imposed life imprisonment and the defendant is serving the sentence in the penitentiary at Lansing, Kansas. His motion for new trial was denied and he has appealed.
*400 McDermott was convicted of murdering his wife, Francis, on September 26, 1966, in Riley county, Kansas. The marital difficulties which culminated in this tragic death began in Iowa and ended in Kansas at the Blue Hills Shopping Center at Manhattan. The wife died as a result of a bullet wound. The bullet was fired from a pistol in the hand of her husband while six witnesses looked on.
The couple were married and lived in Atlantic, Iowa. The marriage occurred in April 1966. In July of that year the wife was hospitalized as a result of a family quarrel. The defendant accused his wife of infidelity and administered a physical beating in an effort toward discipline. In mid-September after leaving the hospital the wife departed from Iowa and came to live with her brother near Manhattan, Kansas.
The defendant remained in Iowa for a time. He purchased the death weapon on September 17. A service station operator in Atlantic testified the defendant picked up a Kansas roadmap and had his car serviced on September 25. While in the station defendant told this witness he was having family troubles and if he couldn't get them straightened out "someone was going to get shot." The following day the defendant drove into a service station north of Manhattan, Kansas, on U.S. Highway 24. He parked his car behind the station in a position where it was concealed from travelers using the highway. His wife was living some distance north of this service station and used the highway in going to and from her work in Manhattan.
His wife left for work that morning at seven o'clock and traveled south on the highway which lead past the service station. A few minutes thereafter two cars careened into the parking lot at the Blue Hills Shopping Center. Six eyewitnesses testified as to what transpired in the parking lot. Their accounts of what occurred were substantially the same.
The defendant and his wife got out of separate cars and an argument ensued. The defendant grasped his wife by the arm and attempted to force her into his car. The wife resisted and begged people in the area to help her. No help was forthcoming. The death weapon was lying on the front seat of the car. Defendant obtained the pistol and a shot was fired from the gun in his hand. The bullet penetrated the wife's left forearm, entered the left breast and penetrated the tip of her heart. The wife slumped to *401 the ground. The defendant placed her in his car and drove to his brother-in-laws house.
The brother-in-law testified he saw the defendant drive up to his house at 7:25 a.m. The defendant leveled a pistol at him and said, "I'll teach you to mess in my family affairs." The brother-in-law escaped to a neighbor's house. His wife witnessed the incident and overheard the defendant's statement.
The police arrived and took the defendant into custody. Mrs. McDermott lay dead on the floor of the carport. The death weapon was obtained from defendant's pocket.
The resulting trial ended with a sentence of life imprisonment and this appeal which followed is based upon four specifications of error.
The defendant requested a specific instruction that if the jury found the death was by accident they must acquit the defendant. He assigns error on refusal to give requested instruction.
Although the specific instruction requested was not given the matter was adequately covered in the general instructions which set forth and defined the essential elements of first and second degree murder and first degree manslaughter. The jury were instructed they must find the death resulted from an intentional and wilful act on the part of the defendant. They were further instructed:
"... If you do not find each and every one of these propositions to be true, from the evidence, beyond a reasonable doubt, you must acquit the defendant without further inqury."
The instructions to the jury were adequate on this point.
Defendant contended the killing was in the heat of passion without design to effect death and requested an instruction on third degree manslaughter. The court refused to give the instruction.
The instructions in a criminal case are to be confined to the issues in the case as determined by the charge in the information and the evidence adduced at the trial. Failure to instruct the jury on some lesser degree of the crime charged is not ground for reversal if the evidence at the trial excludes a theory of guilt on the lesser degree of the crime. In State v. Linville, 148 Kan. 142, 79 P.2d 869, it was held reversible error to instruct on second degree manslaughter when the evidence adduced at the trial failed to establish such crime as charged in the information. In State v. Hockett, 172 Kan. 1, 238 P.2d 539, the defendant was charged with robbery in *402 the first degree and it was held the court was not required to instruct on any lesser degree of the crime when the trial evidence negated guilt of a lesser degree. Similar holdings in first degree murder cases may be found in State v. Zimmer, 198 Kan. 479, 426 P.2d 267, cert. den. 389 U.S. 933, 19 L.Ed.2d 286, 88 S.Ct. 298, and State v. Hoy, 199 Kan. 340, 430 P.2d 275.
We must next determine the legal meaning and significance of the term "heat of passion." In 1 Wharton's Criminal Law and Procedure (Anderson) § 275 it is said:
"When the defendant seeks to reduce his offense from murder to manslaughter on the ground that he acted in hot blood upon circumstances constituting legal provocation, it is necessary that he show that he was in fact provoked by circumstances constituting legal provocation. If the defendant has voluntarily committed homicide without in fact having been provoked into a passion, he is guilty of murder.
"The passion aroused by the provocation must be so violent as to dethrone the reason of the accused for the time being; it must prevent thought and reflection, and the formation of a deliberate purpose. The theory of the law is that malice cannot exist at the same time as passion of this degree, and that the act of the defendant therefore cannot be considered the product of malice aforethought. Mere anger, in and of itself, is not sufficient, but must be of such a character as to prevent the individual from cool reflection and a control of his actions. .. ." (p. 583)
This court has said the term "heat of passion" includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. (State v. Linville, supra; State v. Jones, 185 Kan. 235, 341 P.2d 1042.) However, in order for a defendant to be entitled to a reduced charge because he acted in the heat of passion his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.
In the present case the defendant testified he may have been upset but he was not mad or angry at the time. The circumstances surrounding his actions show insufficient provocation to give rise to a condition of "heat of passion" as recognized in the law. Defendant testified that on arriving at the shopping center he and his wife got out of their cars and exchanged greetings. He then asked his wife to get in his car to talk. He expressed his concern over the welfare of his wife's stepchild. The defendant testified as to the subsequent events as follows:
"Q. What happened next, Mr. McDermott?
"A. She reared back, almost threw me off my feet. I said `Fran, don't go starting that stuff.' I said, `calm down,' So I took her by the shoulder nice *403 and easy getting her, wanting her to get into the car. So the same thing while she was trying to get into the car, I said to her, I says, `Fran,' I said, `your sister-in-law told me that she don't give a damn about you, but she's deeply interested in that youngster.'
"Q. All right, after this was said, what happened next, Mr. McDermott?
"A. After this when she started into partially into the automobile, all of a sudden that gun was in my hand.
"Q. Where were you standing and where was she standing?
"A. She was standing with the door open to the car approximately right up against the car.
"Q. What happened then?"
"A. As I repeated before, when she said I said to her, `Fran, what about that youngster?' and with that, that, that split moment, she said `that's nobody's God damned business,' and when she did the gun went off.
"Q. You had the gun in your hand though?
"A. That is true.
"Q. And it went off.
"A. That is right.
"Q. Mr. McDermott, what happened after that?
"A. I said, `Fran' excuse me. `Fran,' I said, now why did you do that?'
"Q. Well, what happened to her?
"A. She went down, I couldn't hold her. I reached down to pick her up, I thought she had fainted. I reached down to pick her up and I discovered blood on my hands. Then I got to thinking `I have got to do something quick what?' I picked her up, placed her in the automobile on the front seat of the car, turned around out of the driveway as fast as I could, thinking of her brother's place, maybe I can locate that place immediately and get her a doctor or a hospital."
The prosecution called six eyewitnesses to this shooting. Their testimony together with that of the defendant excluded any theory that defendant acted in the heat of passion provoked by circumstances constituting legal provocation for such an emotional state. It was not error under the evidence adduced for the trial court to refuse an instruction on third degree manslaughter.
The defendant specifies further error on the part of the trial court in overruling a motion for change of venue. As grounds for said motion he alleged a fair trial could not be had in Riley county because of publicity received from a local newspaper and a local radio station. Two witnesses were called by him and testified in support of said motion. The manager of the radio station testified that his station carried eighteen factual reports of the shooting incident and there was considerable interest in the community for a week or ten days after the incident. The editor of the newspaper testified his paper carried two articles concerning the matter. The exact nature of the broadcasts and of the news articles is not disclosed. Both *404 witnesses said the people they talked with based their knowledge of the incident upon this publicity. The two witnesses did not disclose the names of the people to whom they talked. No prejudice against the defendant was disclosed by this testimony.
K.S.A. 62-1318 and 1319 provide that a change of venue may be ordered by the judge whenever it shall appear the minds of the inhabitants of the county or of the district in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had. K.S.A. 62-1321 provides that an applicant shall set forth the facts upon which the change of venue is based and the truth of the allegations shall be made to appear by affidavit to the satisfaction of the court.
A change of venue on account of prejudice against the accused by the inhabitants of the county in which the case is pending should not be granted unless it is made to appear affirmatively that such prejudice exists as will be reasonably certain to prevent a fair trial. (State v. Paxton, 201 Kan. 353, 440 P.2d 650.)
There were no affidavits and no testimony introduced on the hearing which tended to prove the inhabitants of Riley county were prejudiced against the defendant. The voir dire examination of the jury does not appear in the record but there is no claim of difficulty in selecting a jury. The record discloses nothing to indicate prejudice.
The record does not disclose what part of this publicity occurred during the trial. A claim that defendant was deprived of a fair trial by reason of publicity attending the trial proceedings cannot be sustained when defendant fails to show that a single member of the jury was made aware of the publicity; and when it does not appear the publicity was massive, pervasive or disruptive of the trial proceedings. (State v. Eldridge, 197 Kan. 694, 421 P.2d 170, cert. den. 389 U.S. 991, 19 L.Ed.2d 483, 88 S.Ct. 486.)
The record discloses nothing to indicate lack of a fair trial.
The final specification of error is directed toward statements made by the county attorney in his closing argument to the jury.
The closing argument is not contained in the record on appeal.
The defendant contends the county attorney went beyond the limits of proper argument, inflamed the jury against him and the court erred in not admonishing the jury to disregard such statements.
The statement attributed to the county attorney and admitted by him on oral argument is, "think of the terror of this little girl Jennifer *405 if this man is allowed to walk the streets ... don't let him out so he may kill someone else." The evidence at the trial indicated that Jennifer was a stepdaughter of the deceased. She had been present during some of the marital quarrels in Iowa. These quarrels resulted in the hospitalization of Jennifer's stepmother.
The purpose of and limits to proper advocacy before a jury were set forth in State v. Wilson, 188 Kan. 67, 360 P.2d 1092, as follows:
"It is the duty of the county attorney in a criminal prosecution to see that the state's case is properly presented with earnestness and vigor, and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court, and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. When a prosecuting attorney persists in objectionable argument, as in the instant case, then the court may, and should, declare a mistrial or grant a new trial. (Citing case.) (p. 73)
..............
"The primary purpose of argument by counsel is to enlighten the jury so that they may render a correct verdict, and counsel should not go beyond the scope of legitimate argument, and his arguments must be confined to the law and the evidence in the case under consideration. Counsel may indulge in impassioned bursts of oratory, or what he may consider oratory, as long as he introduces no facts not disclosed by the evidence. (88 C.J.S. Trial § 169, p. 337.) In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence...." (p. 73)
The statements of the county attorney in the present case appear to be confined to proper comment on the law and evidence in the case. This claim of error appears to be more of an afterthought by the defendant. He made no objection to the statements during the argument to the jury. He made no request to admonish the jury to disregard the statements. The contention is without merit.
We find no prejudicial error in the record and the judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345318/ | 487 S.E.2d 751 (1997)
STATE of North Carolina,
v.
Johnny Antione BECK, Jr.
No. 447A96.
Supreme Court of North Carolina.
July 24, 1997.
*753 Michael F. Easley, Attorney General by Teresa L. Harris, Associate Attorney General, for the State.
Lemuel W. Hinton, Raleigh, for defendant-appellant.
PARKER, Justice.
Defendant Johnny Antione Beck, Jr. was charged in a proper bill of indictment with first-degree murder in the death of Samuel Leon Gregory ("victim"). At the noncapital trial defendant was found guilty as charged and sentenced to life imprisonment.
The State presented evidence at trial tending to show that on 25 February 1995, Torrey Grimes left his apartment at 3544 Nealy Street in Raleigh, North Carolina, and went to the nearby apartment of Karen Ross to visit with the victim. The victim was a friend of Karen Ross' and sometimes stayed at her apartment. When Grimes arrived he saw defendant sitting on the couch. As Grimes sat down on the couch beside defendant, defendant got up and walked to the bathroom. The victim asked to use Grimes' cordless telephone. As the victim stood using the telephone, defendant returned from the bathroom, "walked like he was going out the back door," turned around, and shot the victim in the back of the head.
Grimes saw the victim fall and saw defendant leaning over the victim. Grimes ran to the front door, looked back, saw defendant going to the back door, went back and picked up his cordless phone, and then ran from the scene.
Excel Wilson, a cab driver for the Acme Cab Company, received a dispatch on 25 February to go to 4032 Nealy Street. Johnny Beck, Sr., defendant's father, resided at this address. Telephone records indicated that two telephone calls were made from *754 defendant's father's house to Acme Cab Company. Three men were standing on the corner when Wilson turned onto Nealy Street. One of the men waved Wilson down and said, "I'm the one." Wilson picked up a young black male who told Wilson to take him to Melvid Court. As Wilson left Nealy Street, he passed several police cars heading to the Nealy Street area at a "high rate of speed." When Wilson turned into the Melvid Court area, he observed more police cars. Wilson told his passenger that the police were there and asked the man what he was going to do. The man said, "Leave." Wilson left the area and eventually dropped the man off on another street. Wilson told police officers that he did not get a good look at his passenger. At the time of the murder, defendant resided at 2440 Melvid Court, Apartment B.
Dr. James Edwards testified that he performed an autopsy on the victim and determined the cause of death to be two gunshot wounds. Dr. Edwards testified that either wound would have been fatal and that either wound would have rendered the victim unconscious almost immediately.
Defendant did not present any evidence.
Defendant brings forth four assignments of error. Defendant first argues that the trial court erred by denying his motion to dismiss the first-degree murder charge. Defendant contends there was insufficient evidence to show premeditation and deliberation. We disagree.
When a defendant moves for dismissal based on insufficiency of the evidence, the trial court need determine only whether the State has presented substantial evidence demonstrating each essential element of the offense charged and that the defendant was the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
Defendant was convicted of first-degree murder based on the theory of premeditation and deliberation. "Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation." State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). "Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation." Id. at 635, 440 S.E.2d at 836.
In defining premeditation and deliberation, this Court has stated:
Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.
State v. Brown, 315 N.C. 40, 59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1164, 106 S.Ct. 2293, 90 L.Ed.2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988), quoted in State v. Scott, 343 N.C. 313, 341, 471 S.E.2d 605, 621-22 (1996).
In the instant case the State presented substantial evidence to support a reasonable inference that defendant committed this murder with premeditation and deliberation. As the victim was making a phone call, defendant came out of the bathroom and walked toward the back door of the house. *755 Defendant then turned around and shot the victim in the back of the head. The record is devoid of any evidence of provocation by the victim or evidence that the victim was armed with a weapon.
The manner in which the victim was killed also establishes premeditation and deliberation. After shooting the victim in the back of the head, defendant was seen leaning over the victim's body. At some point an additional shot was fired to the front of the victim's head. The cause of the victim's death was determined to be the two gunshot wounds. Dr. Edwards testified that either wound would have been fatal and that either wound would have rendered the victim unconscious almost immediately. The evidence thus permits the inference that one of the shots was fired after the victim was felled.
Defendant's actions after the shooting also show premeditation and deliberation. Defendant left the house, leaving the victim to die. Taking the evidence in the light most favorable to the State, the trial court did not err in denying defendant's motion to dismiss the charge of first-degree murder.
In defendant's second assignment of error, he contends the trial court committed prejudicial error by denying defendant's motion for an overnight recess so that defendant could locate a witness necessary for his defense. At trial defendant was granted a two-hour recess at the conclusion of the State's evidence. After the recess defendant requested that the trial court issue a bench warrant for Patrick Swain, a defense witness. Defense counsel informed the court that he had subpoenaed Swain, that he had been in contact with Swain, and that Swain had earlier indicated he would testify in this matter, but that defense counsel had spoken with Swain within the last few hours and Swain had refused to appear. Defense counsel later conceded to the court that he was not able to determine whether the Raleigh Police Department had actually served the subpoena on Swain. The trial judge denied defendant's request to issue a bench warrant for Swain.
Defendant, through counsel, informed the court that it wanted to "get in the record a motion to recess" until the next morning in order to have "a last opportunity" to get Swain to testify. Defense counsel stated that Swain would testify that he was the person who caught the cab at 4032 Nealy Street the night of the murder. The trial judge denied defendant's request for an overnight recess, stating, "If you had a served subpoena, then I would have been more inclined to allow your request until [Swain] could be brought to court. I have no indication that he's even available, except what you've told me, much less served with a subpoena." Defendant contends that the failure of the trial court to grant his requested recess violated his Sixth Amendment right under the United States Constitution to have compulsory process to obtain witnesses and his right under the North Carolina Constitution to confront his accusers with witnesses and other testimony pursuant to Article I, Section 23. We disagree.
A motion for a continuance is ordinarily addressed to the sound discretion of the trial judge, and the ruling will not be disturbed absent a showing of abuse of discretion. State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341 (1982). However, when a motion to continue raises a constitutional issue, the trial court's action upon it involves a question of law which is fully reviewable on appeal by examination of the particular circumstances revealed in the record. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). If defendant demonstrates that the denial of a motion for continuance was erroneous and that the error was a constitutional violation, defendant is entitled to a new trial unless the State shows that the error was harmless beyond a reasonable doubt. State v. Gardner, 322 N.C. 591, 594, 369 S.E.2d 593, 596 (1988); see also State v. Tunstall, 334 N.C. 320, 328-29, 432 S.E.2d 331, 336-37 (1993).
Continuances should not be granted unless the reasons for the delay are fully established. State v. McCullers, 341 N.C. 19, 32, 460 S.E.2d 163, 170 (1995). "[A] motion for a continuance should be supported by an affidavit showing sufficient grounds for the continuance." State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986). "`[A] postponement *756 is proper if there is a belief that material evidence will come to light and such belief is reasonably grounded on known facts.'" State v. Tolley, 290 N.C. 349, 357, 226 S.E.2d 353, 362 (1976) (quoting State v. Gibson, 229 N.C. 497, 502, 50 S.E.2d 520, 524 (1948)) (alteration in original).
In the instant case defendant failed to provide any "form of detailed proof indicating sufficient grounds for further delay." State v. Searles, 304 N.C. 149, 155, 282 S.E.2d 430, 434 (1981). The only information before the trial court was defense counsel's unsworn statements. In these statements defense counsel represented that he had been in contact with Swain, that Swain had originally said he would testify but was refusing to come to court, and that a subpoena had been issued but defense counsel was uncertain whether it had been served. Regarding service of the subpoena, we note that the record does not contain a copy of the subpoena so this Court has nothing before it from which to determine when the subpoena was issued, the name designated in the subpoena, or the address shown.
In State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978), this Court stated:
Furthermore, as was said in Hoskins v. Wainwright, 440 F.2d 69, 71 (5th Cir., 1971), "The right to compulsory process is not absolute, and a state may require that a defendant requesting such process at state expense establish some colorable need for the person to be summoned, lest the right be abused by those who would make frivolous requests."
Id. at 206, 244 S.E.2d at 663. The unsworn statements of defendant's trial counsel that Swain would testify that he was the person who hailed the taxi on Nealy Street the night of the murder are not sufficient to establish the "colorable need for the person to be summoned" so as to justify delaying the trial to secure the witness. See State v. Kuplen, 316 N.C. at 404, 343 S.E.2d at 803. Defendant's counsel also represented that the police had five outstanding warrants for Swain but were unable to locate him. Hence, the likelihood of Swain's availability the next morning was de minimis.
Defendant also argues that he was not afforded a reasonable time to investigate and prepare his case. This contention was not the basis upon which defendant asked for the continuance at trial or assigned error on appeal. Moreover, the record shows that counsel was appointed for defendant in March 1995. Defendant and his counsel, therefore, had until defendant's trial on 5 September 1995, almost six months, to prepare defendant's defense. This argument is without merit.
Given the facts and circumstances surrounding defendant's motion for a continuance, the trial court did not err in denying the motion. This assignment of error is overruled.
Defendant's third and fourth assignments of error relate to the trial court's instruction to the jury on flight. Defendant first contends the instruction on flight was not supported by the evidence.
Over defendant's objection the trial court instructed the jury as follows:
The State contends and the defendant denies that the defendant fled. Evidence of flight may be considered by you, together with all other facts and circumstances in this case, in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of the circumstance is not sufficient in itself to establish the defendant's guilt. Further, this circumstance has no bearing on the question of whether the defendant acted with premeditation and deliberation. Therefore, it must not be considered by you as evidence of premeditation or deliberation.
"[A] trial court may not instruct a jury on defendant's flight unless `there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.'" State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 435 (1990) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). "Mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension." *757 State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991).
The evidence in the instant case permits an inference that defendant not only left the crime scene, but also took steps to avoid apprehension. Defendant fired two gunshots at the victim and then left the residence without rendering any assistance to the victim or seeking to obtain any medical aid for him. Thereafter, two telephone calls were made from defendant's father's house to a local cab company. A young black male signaled the cab driver on Nealy Street, where the murder occurred, and requested a ride to Melvid Court, where defendant resided. When the cab arrived at Melvid Court, police vehicles were at the residence. The passenger told the cab driver to leave that area as well. This evidence was sufficient to support the trial court's instruction on flight, and this assignment of error is overruled.
Finally, defendant contends the jury instruction on flight given by the trial court was erroneous. Defendant challenges the wording of the instruction and maintains that the trial court incorrectly stated defendant's contention regarding the issue of flight. Specifically, defendant takes issue with the trial court's statement that defendant denied that he fled. Defendant argues that this was "a gross distortion" of his position. Defendant contends he did not deny that he fled, "for that implies that he was at the murder scene when the homicide was committed."
We note initially that defendant did not specifically object to the trial court's wording of the flight instruction at trial. During the charge conference defendant objected to any instruction concerning flight on the grounds that no evidence in the record supported this instruction. After the jury had been instructed, the trial court gave each party the opportunity to make for the record any objections to the instructions given and to request any additions, deletions, or amendments to the instructions given. At this time defense counsel made a general objection to the instruction on flight.
Pursuant to N.C.R.App.P. 10(b)(2),
[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.
In the instant case defendant was given the opportunity to object to the wording of the instruction on flight and failed to do so. Defendant has not alleged, nor do we find, plain error. This assignment of error is overruled.
Defendant makes additional arguments as to this instruction which he concedes we have previously rejected. See State v. House, 340 N.C. 187, 456 S.E.2d 292 (1995); State v. Jefferies, 333 N.C. 501, 428 S.E.2d 150 (1993). Defendant has failed to offer any argument sufficient to warrant this Court's reconsideration of its prior holdings on this issue. This assignment of error is overruled.
For the foregoing reasons we conclude that defendant received a fair trial free from prejudicial error.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345319/ | 449 P.2d 81 (1968)
79 N.M. 711
Chester Francis ROHRER, Plaintiff-Appellant and Cross-Appellee,
v.
EIDAL INTERNATIONAL, Employer, and Mountain States Mutual Casualty Company, Insuror, Defendants-Appellees and Cross-Appellants.
No. 195.
Court of Appeals of New Mexico.
November 27, 1968.
Rehearing Denied December 19, 1968.
*82 LeRoi Farlow, Farlow & Duffy, Albuquerque, for plaintiff-appellant.
Allen C. Dewey, Jr., Peter J. Adang, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for defendants-appellees.
OPINION
WOOD, Judge.
The dispositive issue is "actual knowledge" of the occurrence which dispenses with written notice of accident and compensable injury under our Workmen's Compensation Act. Section 59-10-13.4(B), N.M.S.A. 1953. This issue is raised by both parties; plaintiff in appealing from a judgment in his favor, defendant by cross-appeal. Plaintiff complains of (1) the finding as to when the employee gave the employer "actual notice" and (2) the refusal of his requested finding as to when plaintiff knew he had suffered a compensable injury. Defendant complains of the trial court's conclusion that notice to the employer was reasonable.
The finding concerning "actual notice".
On March 11, 1966 plaintiff sustained an injury by accident arising out of and in the course of his employment. The trial court found:
"Plaintiff did not give written notice of a compensable injury but he gave actual notice to the defendant employer on April 14, 1966."
Plaintiff attacks the date of "actual notice" found by the trial court; however, there is substantial evidence which supports the finding. On cross examination, plaintiff admitted he went to see an officer of the employer on April 14th and at that time the officer "probably" told him he could be fired for waiting so long to report an injury. On redirect, plaintiff explained why he didn't report to the officer until April 14th. There is conflicting evidence; the officer gave the date as April 11th. It was for the trial court to resolve this conflict; it did so by the finding. Romero v. Zia Company, 76 N.M. 686, 417 P.2d 881 (1966); Torres v. Kennecott Copper Corp., 76 N.M. 623, 417 P.2d 435 (1966).
Plaintiff also contends the trial court should have found that plaintiff verbally reported the accident to his superintendent either on the day of the accident or the following day. Both plaintiff and the superintendent so testified. However, the superintendent contradicted this testimony on cross examination. He testified that he didn't know how long after the accident it was reported, didn't know whether the accident was reported the next day and couldn't testify that the accident was reported in March. Under these circumstances, the trial court could deny full credence to the testimony of plaintiff; it did so in finding that plaintiff gave the employer actual notice of the accident on April 14. See Bell v. Kenneth P. Thompson Co., 76 N.M. 420, 415 P.2d 546 (1966).
We do not substitute our judgment for that of the trial court as to the credibility of the witnesses. Bell v. Kenneth P. Thompson Co., supra. Accordingly, the finding of the trial court is not erroneous.
Refusal of requested finding concerning plaintiff's knowledge of compensable injury.
We are not concerned here with the sufficiency of the employer's "actual knowledge"; we assume the employer had actual knowledge of an accident and compensable injury on April 14th. See Roberson v. Powell, 78 N.M. 69, 428 P.2d 471 (1967); Smith v. State, 79 N.M. 25, 439 P.2d 242 (Ct.App. 1968).
Our concern is with when plaintiff knew or should have known that he suffered a compensable injury. The period for written notice does not begin to run until *83 plaintiff is charged with such knowledge. Sanchez v. City of Albuquerque, 75 N.M. 137, 401 P.2d 583 (1965); Langley v. Navajo Freight Lines, Inc., 70 N.M. 34, 369 P.2d 774 (1962). The accident happened on March 11th; the employer had actual knowledge on April 14th. The closer to April 14th that plaintiff is charged with knowledge of a compensable injury then the more prompt is plaintiff's verbal report which, here, is the basis of the employer's actual knowledge. This bears directly on the legal conclusion concerning notice discussed as the third point in this opinion.
Plaintiff requested a finding that it was not until April 14th that it was apparent that plaintiff suffered a compensable injury. He claims the trial court erred in refusing this request.
As in the first point, there is a conflict in the evidence. Plaintiff testified that he didn't report the accident until April 14th because he thought he would get "all right", that he didn't have any difficulty until April 14th and on that day went to the doctor.
The accident occurred when plaintiff stepped on a cable connection, twisted his left hip, fell to his hands and knees and experienced a severe pain in his left hip and back. When he got up "* * * something was protruding in my hip and, as I straightened up and straightened my leg, it went back. I presume it was out of the socket." His hip was sore and painful. He "* * * limped from the time I was hurt." "It got progressively worse." "It wasn't doing any better, so I went to the doctor" on April 14th. The doctor was of the opinion that plaintiff had a 50% disability of the left hip when he saw him on April 14th and thereafter plaintiff "stayed status quo."
It was for the trial court to resolve the conflict in plaintiff's testimony. Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967); Hughes v. Walker, 78 N.M. 63, 428 P.2d 37 (1967). Accordingly, it did not err in refusing to find that plaintiff did not have knowledge of a compensable injury until April 14th. See Roberson v. Powell, supra; Sanchez v. City of Albuquerque, supra; Higgins v. Board of Directors of N.M. State Hosp., 73 N.M. 502, 389 P.2d 616 (1964).
The conclusion that notice was reasonable.
Since no written notice was given, plaintiff's claim for compensation is barred unless the employer had "actual knowledge" under § 59-10-13.4(B), supra. Roberson v. Powell, supra; Smith v. State, supra. If the employer had "actual knowledge", it acquired that knowledge by plaintiff's verbal notice thirty-four days after the accident. Defendants do not claim they did not know of the "occurrence" after plaintiff's verbal report. They contend that verbal notice given thirty-four days after the accident cannot constitute "actual knowledge" within the meaning of § 59-10-13.4(B), supra. It is on this basis that defendants contend the trial court erred in concluding that they had "reasonable notice."
"Verbal notice" is considered in determining the employer's actual knowledge. However, the "verbal notice" is not determinative in and of itself. All the facts and circumstances must be considered, including the promptness of the verbal notice. In the following cases the employer received "verbal notice" on the day of the accident or the following day. This promptness, together with the other circumstances, was sufficient to charge the employer with "actual knowledge". Baca v. Swift & Co., 74 N.M. 211, 392 P.2d 407 (1964); Lozano v. Archer, 71 N.M. 175, 376 P.2d 963 (1962); Winter v. Roberson Construction Co., 70 N.M. 187, 372 P.2d 381, 96 A.L.R.2d 933 (1962). See also Buffington v. Continental Casualty Co., 69 N.M. 365, 367 P.2d 539 (1961).
It is the totality of the facts and circumstances that determines whether the employer has "actual knowledge." *84 The facts and circumstances were sufficient to charge the employer with "actual knowledge" in Waymire v. Signal Oil Field Service, Inc., 77 N.M. 297, 422 P.2d 34 (1966), although the verbal notice was not promptly given; it not being given until nine days after the accident. The employer was not charged with "actual knowledge" in Scott v. General Equipment Co., 74 N.M. 73, 390 P.2d 660 (1964) since the only circumstance was a verbal notice not given until thirteen days after the accident.
Here the verbal notice is the only circumstance on which the employer can be charged with "actual knowledge". This verbal notice was not given until thirty-four days after the accident. Under Scott v. General Equipment Co., supra, this is insufficient to charge the employer with "actual knowledge".
There is an additional reason why the employer cannot be charged with "actual knowledge". The concern with "actual knowledge" is to determine whether written notice is excused. Thus an inquiry concerning "actual knowledge" is relevant only within the time allotted for giving written notice. Specifically, if notice is not given or excused within the time provided by § 59-10-13.4(A), N.M.S.A. 1953, the claim is barred. "Actual knowledge" only excuses the failure to give written notice when such actual knowledge is acquired within the time allotted for the written notice. Although used in a different context, the following statement from Scott v. General Equipment Co., supra, is pertinent:
"To hold otherwise would effectively nullify the requirement of written notice, and would stretch `actual knowledge' excusing the same beyond recognition."
Nothing in the record of this case indicates anything to prevent plaintiff from giving written notice to the employer. Accordingly, under § 59-10-13.4(A), supra, he was required to give written notice within thirty days. Even if the facts and circumstances were such that the employer had "actual knowledge" on the thirty-fourth day, such actual knowledge could not excuse the failure to give written notice because the time for giving written notice had expired.
Since there was no written notice, the conclusion by the trial court that the employer had "reasonable notice" necessarily means "actual knowledge" by the employer. For both of the reasons discussed above the employer did not have "actual knowledge"; the conclusion is erroneous.
There being neither written notice nor actual knowledge within the meaning of § 59-10-13.4, N.M.S.A. 1953, plaintiff's claim for compensation is barred. Roberson v. Powell, supra; Smith v. State, supra.
The judgment is reversed. The cause is remanded with instructions to set the judgment aside and enter a new judgment dismissing the complaint.
It is so ordered.
SPIESS, C.J., concurs.
ARMIJO, Judge (dissenting).
I disagree with the conclusion reached by the majority and would remand with instructions to the trial court to determine the issue of latency.
Appellant requested a conclusion of law that his injury was latent, based on his request for findings of fact supporting this result. Appellees tendered requested findings and conclusions to the contrary. By its judgment the trial court seemingly resolved this issue in appellant's favor but failed to so specify in its decision. As noted in the majority opinion there was dispute in the evidence on this point sufficient to support a finding pro or con.
I think this presents an "irreconcilable conflict" situation similar to that in Baker v. Shufflebarger & Associates, Inc., 77 N.M. 50, 419 P.2d 250 (1966) (on review of other issues 78 N.M. 642, 436 P.2d 502 (1968)). See also Walter E. Heller & Company of California v. Stephens, 79 N.M. 74, 439 P.2d 723 (1968).
I dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345322/ | 449 P.2d 847 (1969)
INTERNATIONAL TRANSPORTATION EQUIPMENT LESSORS, Inc., and Amos E. Heacock, Petitioners,
v.
J.S. BOHANNON, Circuit Judge, 19TH District, Defendant.
Supreme Court of Oregon. Department 2.
Argued and Submitted September 10, 1968.
Decided January 29, 1969.
*848 Howard R. Hedrick, Portland, argued the cause and filed a brief for petitioners.
George G. Van Natta, St. Helens, argued the cause for defendant. With him on the brief were Van Natta & Petersen, St. Helens.
Before PERRY, C.J., and SLOAN, GOODWIN, HOLMAN and LUSK, JJ.
HOLMAN, Justice.
This is an original proceeding in mandamus in this court to compel the defendant, a circuit judge, to transfer a suit from Columbia to Clatsop County. Defendant filed a demurrer to the alternative writ.
A husband and wife by the name of Nelson brought suit in Columbia County praying for the cancellation of all instruments purporting to transfer ownership of real property in Clatsop County from them to petitioners because the consideration had not been paid for the transfer. Petitioners moved for a change of venue to Clatsop County, contending that the suit came within the provisions of ORS 14.040(1) and (5).[1] The question is whether the alternative writ states grounds for relief.
In defense of his ruling refusing the change of venue, defendant contends that the suit by the Nelsons was not the kind of suit within the reach of the provisions of ORS 14.040. He also contends that, in any event, the writ failed to allege compliance with all the conditions necessarily precedent to its issuance. Because we believe the defendant's second contention is meritorious it will be unnecessary to consider his first.
All material facts showing petitioners' clear right to the relief demanded must appear from the writ. The Oregon authority for this rule is revealed in Johnson v. Craddock et al., 228 Or. 308, 322, 365 P.2d 89, 96 (1961):
"The writ is the foundation for all subsequent proceedings in mandamus. It has the same function as a complaint in other actions and, therefore, must state all the material facts and show a clear right to the relief demanded. Crawley v. Munson, 131 Or. 428, 435, 283 P. 29; United States of America v. Cohn, 201 Or. 680, 684, 272 P.2d 982. The writ must reveal, at least prima facie, a clear and existing right in the petitioner and allege performance by the petitioner of all conditions precedent. Paine v. Wells, 89 Or. 695, 699, 175 P. 430; Ross v. County Court of Marion, 147 Or. 695, 701, 35 P.2d 484, Crawley v. Munson, supra, 131 Or. at 436, 283 P. 29; State ex rel. Bowles v. Olson, 175 Or. 98, 106, 151 *849 P.2d 723; and also negative the existence of facts excusing defendant's performance. Paine v. Wells, supra, 89 Or. at page 699, 175 P. 430; 35 Am.Jur. 94, Mandamus § 349."
One of the conditions precedent to the granting of a motion for change of venue is the filing by the moving party of an affidavit showing that the motion was not made for the purpose of delay. ORS 14.110 provides as follows:
"When place of trial may be changed. (1) The court or judge thereof may change the place of trial, on the motion of either party to an action or suit, when it appears from the affidavit of such party that the motion is not made for the purpose of delay and, either;
"(a) That the action or suit has not been commenced in the proper county; or,
* * * * * *
"(2) When the moving party in an action is a nonresident of the county, the affidavit above required may be made by any one on his behalf."
The alternative writ alleges the fulfillment of the above requirements as follows:
"That petitioners did file a motion, in conformance with ORS 14.110 et seq. for a change of venue of said suit from Columbia County to Clatsop County, Oregon."
A demurrer to an alternative writ of mandamus has the effect of admitting all well-pleaded facts therein. State of Oregon ex rel. Tidewater Shaver Barge Lines v. Dobson, 195 Or. 533, 540, 245 P.2d 903 (1952); State ex rel. Massachusetts Bonding & Ins. Co. v. Updegraff, 172 Or. 246, 250, 141 P.2d 251 (1943). A demurrer does not, however, admit conclusions of law in such a writ. State ex rel. Burke v. Beveridge, 112 Or. 19, 22, 228 P. 100 (1924); State ex rel. v. Williams 45 Or. 314, 330, 77 P. 965, 67 L.R.A. 166 (1904).
The allegation "in conformance with ORS 14.110 et seq" is the statement of a legal conclusion. In the case of Zimmerman v. Hoss, 144 Or. 55, 23 P.2d 897 (1933), an alternative writ contained an allegation that petitioner had filed declarations of candidacy "within the period provided by law." The court said at 59-60, 23 P.2d at 899:
"In referring to the declarations of candidacy filed by the plaintiffs herein, the alternative writ states that the same were filed `within the period provided by law'. This averment is a mere conclusion of law and is not admitted by the demurrers. It is for the court to say, from the facts alleged, whether or not these declarations were filed as required by law."
The fact that a particular statute was cited in the present case does not give rise to a meaningful distinction between the present situation and the one in Zimmerman. We, therefore, hold that the present writ has no adequate allegation showing that petitioners filed an affidavit to the effect that the motion for change of venue was not made for the purpose of delay. Also see State ex rel. v. Williams, supra, at p. 330, 77 P. 965.
Even though a party has been sued in the wrong county, he has no immediate right to have the suit remanded to the proper county by a change of venue until he has filed an affidavit alleging that he is not moving for a change of venue for the purpose of delaying the proceedings and facts showing that the action was commenced in the wrong county. Without it having been adequately alleged that such an affidavit was filed, petitioners have failed to "state all the material facts and show a clear right to the relief demanded." Johnson v. Craddock, supra, 228 Or. at page 322, 365 P.2d at page 431. Nor did they "negative any facts which * * * might defeat his right to maintain the action." Paine v. Wells, 89 Or. 695, 699, 175 P. 430 (1918).
The writ having failed to state facts sufficient to entitle petitioners to relief, the writ is denied.
NOTES
[1] "Actions and suits that are to be brought where subject is situated. Actions and suits for the following causes shall be commenced and tried in the county in which the subject of the action or suit, or some part thereof, is situated:
"(1) Actions for the recovery of real property, or an estate or interest therein, or for injuries to real property;
* * * * *
"(5) Suits for the determination of an adverse claim, estate, or interest in real property, or the specific performance of an agreement in relation thereto." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345323/ | 449 P.2d 729 (1969)
Jack David LOVE, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-14791.
Court of Criminal Appeals of Oklahoma.
January 15, 1969.
Harrison Roe, Frederick, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Reid Robison, Asst. Atty. Gen., for defendant in error.
*730 BRETT, Judge:
Plaintiff in Error herein, hereafter referred to as defendant, Jack David Love, was tried and convicted by a jury in District Court of Tillman County, Oklahoma for the crime of Larceny of a Motor Vehicle, after former conviction of felony. The jury imposed his sentence at ten years confinement in the state penitentiary. Judgment and sentence was imposed on March 26, 1963. This is a companion case with defendant's appeal to this Court, and reported in 448 P.2d 727 (1969).
Defendant attempted to appeal his conviction to this Court, as well as the companion case, but because such attempt was not timely made in accordance with the state statutes, this Court lacked jurisdiction to consider the appeal, so it was denied. See: Love v. State, Okl.Cr., 385 P.2d 512. Subsequent to that action the Legislature provided authority for Post Conviction Appeals. Consequently in accordance with Wynn v. Page, 10 Cir., 369 F.2d 930 (1966), since defendant's right to appeal had not been explained to him, this Court granted this appeal, at state expense.
In defendant's companion case, defendant was charged and convicted with two co-defendants with the crime of larceny of 2,835 pounds of copper wire which belonged to the City of Frederick. In the instant case, defendant is charged with the same two co-defendants with the crime of larceny of an automobile, after former conviction of a felony. A severance was granted, after which the two co-defendants entered pleas of guilty, but defendant herein chose to stand trial.
The facts in this case reveal that a 1961 two ton Chevrolet truck, with winch, which belonged to the Rural Electric Association was taken without authority by one of the three men essentially for the purpose of loading the stolen copper wire on another pick-up truck. However, during the time the loading was taking place, the three men were arrested by the County Sheriff's Deputies.
Defendant testified in his own behalf and admitted that he was with the other two men, for the purpose of assisting in loading the stolen wire, but he denied that he had any part in the theft of the wire, or the REA truck. He stated that one of the other co-defendants got the truck and *731 drove it to the place where the wire had been left earlier. Ostensibly, defendant's admission on the witness stand clearly makes him an accomplice with his co-defendants in the commission of the crime. He admitted that he was working with the winch cable when the officers arrived. In any event, the jury refused to believe his lack of knowledge of what was taking place, as well as his lack of participation in the crime, found him guilty and assessed his punishment at ten years in the state penitentiary.
As in the companion case, defendant's brief filed to cover both cases argues the single proposition that the punishment is excessive, considering that the co-defendants were given a lesser sentence on their pleas of guilty. Such proposition is without merit, for as was stated by the U.S. Supreme Court in Williams v. State of Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516:
"[T]he Due Process Clause of the Fourteenth Amendment does not, nor does anything in the Constitution, require a State to fix or impose any particular penalty for any crime it may define or to impose the same or `proportionate' sentences for separate and independent crimes."
In the instant case, defendant was charged with the second stage proceeding of "After Former Conviction of Felony". To support that charge the State offered in evidence proof of defendant's 1954 conviction in the Superior Court of the State of California, County of San Diego, for burglary in the second degree; and his 1956 conviction in the District Court of Carter County, Oklahoma for the crime of burglary in the second degree. Thereafter, the jury imposed the minimum sentence provided in Title 21 O.S.A. § 51, paragraph (1), which provides that such subsequent offense is punishable by imprisonment, but instead assessed only the minimum allowed by law.
We observe 21 O.S.A. § 172 provides:
"All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals."
Also, this Court recently held in Austin v. State, Okl.Cr., 418 P.2d 103 (1966):
"Defendant could be convicted of grand larceny of suits notwithstanding that he did not have possession of suits and was not caught in the act of concealing and carrying them away, where he was charged conjointly with acting together with the two women who were actually caught with the suits, and who accompanied him into the store."
It was also held in Pearce v. Oklahoma, 118 F. 425, 55 C.C.A. 550 (1903), that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present are principals. This was provided while the Court was interpreting the meaning of the statutes, now referred to as, Title 21 O.S.A. § 172, and Title 22 O.S.A. § 432. The record in this case reveals that the defendant by his own testimony placed himself clearly within these two sections of the statutes.
We have examined the record in this case and while much of the evidence is circumstantial, we conclude that defendant received a fair trial and due process of law; and we fail to find any justification for tampering with the verdict of the jury which had the opportunity to hear the testimony and observe the witnesses, as well as the defendant, when the trial was conducted. Likewise, the sentence imposed by the jury, being the minimum allowable by law, is not excessive.
We are therefore of the opinion that his case should be affirmed, and it is so ordered. Affirmed.
NIX, J., and BUSSEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345328/ | 449 P.2d 725 (1969)
Donald K. TORBETT, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-14623.
Court of Criminal Appeals of Oklahoma.
January 15, 1969.
Robert O. Swimmer, Oklahoma City, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.
BUSSEY, Judge.
Donald K. Torbett, hereinafter referred to as defendant, was charged, tried and convicted for the offense of Operating a Motor Vehicle While Under the Influence *726 of Intoxicating Liquor. From the judgment and sentence rendered against him in the Court of Common Pleas of Oklahoma County, assessing his punishment at 10 days imprisonment in the county jail, a fine of $200.00 and costs, a timely appeal has been perfected to this Court.
We deem it unnecessary to set forth the testimony as it appears in the record, suffice it to say that the only witnesses appearing in the trial were the highway patrolman and the defendant, and their testimony relative to the question of intoxication was in sharp conflict.
The sole question presented on appeal is that the trial court, over the objection of counsel for defense, allowed the prosecuting attorney to elicit from the defendant an admission that he had previously forfeited a bond in the Municipal Court of Midwest City.
Title 12, O.S. § 381, is as follows:
"No person shall be disqualified as a witness in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility." [Emphasis added]
The State relies on Le Blanc v. State, 95 Okl.Cr. 280, 245 P.2d 134, where, in the body of the opinion, this Court in construing this statute, had this to say:
"The defendant's third contention is that the trial court erred in permitting the county attorney to show on cross examination of defendant, prior municipal court bond forfeitures in other liquor charges lodged against the defendant in the city court. The defendant contends the record would have been the best evidence thereof. Such is not the case on cross examination of defendant concerning a matter within his personal knowledge. The defendant admitted she posted bonds for liquor violations and forfeited them in the municipal court. Having taken the stand in her own behalf she came within the rule of Storer v. State, 84 Okl.Cr. 176, 180 P.2d 202, 207, as follows:
`A defendant by availing himself of the privilege of testifying in his own behalf thus waives his constitutional privilege of remaining silent and has all the rights and is subject to the same rules of cross-examination and impeachment as other witnesses.
`The statute, 12 O.S. 1941 § 381, permits proof of a prior conviction of the defendant in a criminal case for the purpose of affecting his credibility as a witness. This proof may be made either by the record or on cross-examination of the defendant.'
"Such inquiry went to her credibility as a witness. Moreover in Chambless v. State, 90 Okl.Cr. 423, 214 P.2d 947, and Wheatley v. State, 77 Okl.Cr. 122, 139 P.2d 809, we held that the defendant may be interrogated on cross examination as to police court convictions for alleged possession of whiskey, for the reason, such offenses constituted offenses under state law, and such convictions go to the witness' credibility. We are of the opinion that, where as herein, the police court bond forfeitures were deliberately made, in cases involving unlawful possession of intoxicating liquor, such are tantamount to a plea of guilty and should be so regarded. Hence the cross examination relative to the same is not improper as going to the witness' credibility. Moreover, the cross examination herein involved could not have been prejudicial to the defendant in face of her admission of guilty as charged in the information, and in view of Title 22, § 1068, O.S. 1951, since the said evidence could not have resulted in a miscarriage of justice. Furthermore, her defense is too weak to remove her from the provisions of Title 37, § 82, O.S. 1951, in substance, providing that the keeping `in excess of one quart of any spirituous, [etc.] liquors * * * in or about his place of business or his residence * * shall be prima facie evidence of an *727 intention to convey, sell or otherwise dispose of such liquors * * *.'"
This case was cited with approval in Fox v. State, Okl.Cr., 331 P.2d 964 and similar holdings may be found in Storer v. State, 84 Okl.Cr. 176, 180 P.2d 202; Chambless v. State, supra and Wheatley v. State, supra.
While we are of the opinion that the Court's decision affirming the conviction in Le Blanc v. State, supra, was correct, we are constrained to think that in the light of the overwhelming guilt of the defendant, as reflected by the record in that case, the Court should have recognized that while it was error to allow the prosecutor to elicit from the defendant testimony relating to prior bond forfeitures in Municipal Court, such error was not so prejudicial as to require a reversal. We do not believe that a bond forfeiture, intentional or otherwise, in Municipal Court, is tantamount to a conviction. A bond forfeiture is by its very nature a civil proceeding and does not terminate the criminal proceedings pending against the accused. A person forfeiting a bond is subject to arrest on a bench warrant and may be placed on trial notwithstanding the forfeiture. His trial may result in a conviction or acquittal and it is only when the defendant has been convicted, or acquitted, that the proceeding against him is terminated and final unless it is dismissed at the request of the prosecutor or by order of the court.
Whether or not the erroneous admission of this evidence during the cross-examination of the defendant would require a reversal must depend on the facts of each particular case. In a case where the evidence of the defendant's guilt is overwhelming, the admission of such testimony should not constitute reversible error, but where, as in the instant case, there is a sharp conflict in the evidence and but one witness testifies for the State and one for the defense, the admission of such evidence undoubtedly resulted in the jury's determination that the defendant, and not the officer, was lying.
We are of the opinion, and therefore hold, that the judgment and sentence appealed from should be, and the same is hereby, reversed and remanded for a new trial, and all previous decisions of this Court in conflict with this opinion, are hereby expressly overruled. Reversed and remanded for a new trial.
BRETT, P.J., and NIX, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345334/ | 449 P.2d 986 (1969)
22 Utah 2d 138
Don LAYTON, aka Donald W. Layton, and Helen D. Layton, his wife, Plaintiffs and Appellants,
v.
Gordon E. HOLT and S. John Webber, Salt Lake County, a body politic of the State of Utah, Marvin Jenson, Commissioner, Defendants and Respondents.
No. 11298.
Supreme Court of Utah.
January 22, 1969.
E.J. Skeen, Salt Lake City, for plaintiffs and appellants.
Mary C. Lehmer, Salt Lake City, for defendants and respondents.
TUCKETT, Justice:
The plaintiffs commenced this action in the court below seeking a decree quieting title in themselves to Lot 8, Block 1 North, Beyles Riverside Plot, located in Salt Lake County, Utah. Salt Lake County and one of its commissioners were made parties defendant, but they have filed their disclaimers. The defendants Gordon E. Holt and S. John Webber answered the complaint and also cross-complained seeking a decree quieting title to the property in themselves.
A.V. and Patricia Raplee, husband and wife, received title on September 15, 1930, as tenants in common, by virtue of a warranty deed from the former owners. The Raplees did not occupy the premises in question, and on January 10, 1935, the property was sold to Salt Lake County for delinquent taxes. The county auditor conveyed the premises to Salt Lake County on February 28, 1939, by auditor's tax deed. On May 10, 1965, Patricia Raplee and her son Robert G. Raplee quitclaimed their interest in the property to the plaintiffs herein. The conveyance recited that Robert G. Raplee was the only child of Patricia Raplee and the late A.V. Raplee. On June 15, 1965, Salt Lake County sold the property to the defendants Gordon E. Holt and S. John Webber.
*987 The court below found that neither the plaintiffs nor their predecessors in ownership had occupied nor been in possession of the property in question for more than 30 years prior to trial. The evidence before the court supports that finding. Based upon the finding above referred to, the court concluded that the claims of the plaintiffs were barred by the provisions of Sections 78-12-5.1, 78-12-5.2, 78-12-5.3, and 78-12-7.1, Utah Code Annotated 1953, as amended. The court entered its decree quieting title in the defendants. From the judgment of the court below the plaintiffs have appealed to this court.
The plaintiffs here contend that the county auditor having omitted to attach his affidavit to the county assessment roll for the year 1934, that failure voided the auditor's tax deed to Salt Lake County, and that the title deraigned by the defendants through those tax procedures was likewise void.[1]
In 1951, the legislature set about amending the statutes of limitations so as to lessen the time for recovery of real property from those holding the same by virtue of a tax title. The pertinent parts of the statutes above referred to are substantially as follows:
Section 78-12-5.1: With respect to actions or defenses brought or interposed for the recovery or possession of or to quiet title to or determine the ownership of real property against the holder of a tax title to such property, no such action or defense shall be commenced or interposed more than four years after the date of the tax deed, conveyance or transfer creating such tax title unless the person commencing or interposing such action or defense or his predecessor has actually occupied or been in possession of such property within four years prior to the commencement or interposition of such action or defense.
Section 78-12-5.2: No action or defense shall be commenced or interposed against the holder of a tax title after the expiration of four years from the date of the sale, conveyance or transfer of such tax title to any county; provided, however, that this section shall not bar any action or defense by the owner of the legal title to such property where he or his predecessor has actually occupied or been in actual possession of such property within four years from the commencement or interposition of such action or defense. [Emphasis added.]
The term "tax title" as defined by Section 78-12-5.3 would indicate that the legislature intended to include within the statutes of limitation tax titles which were initiated by tax sales the records of which would not show that each statutory step had been followed with exactitude.
We are of the opinion that the claims of the plaintiffs to ownership of the property above described are barred and that the decision of the court below quieting title in the defendants is correct.[2] The judgment of the court below is affirmed. Respondents are entitled to costs.
CALLISTER, HENRIOD, and ELLETT, JJ., concur.
CROCKETT, C.J., concurs in the result.
NOTES
[1] Telonis v. Staley, 104 Utah 537, 144 P.2d 513.
[2] Peterson v. Callister, 6 Utah 2d 359, 313 P.2d 814. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345259/ | 449 P.2d 123 (1968)
HONOLULU RAPID TRANSIT COMPANY, Limited, a Hawaii Corporation
v.
Ernest G. PASCHOAL.
No. 4713.
Supreme Court of Hawaii.
December 12, 1968.
*124 David R. Carroll, Honolulu (Robertson, Castle & Anthony, Honolulu, of counsel), for appellant.
William R. Loomis, Jr., Honolulu (Harold W. Conroy, Honolulu, on the brief; Henshaw, Hon. Haw. Conroy & Hamilton, Honolulu, of counsel), for appellee.
Before RICHARDSON, C.J., MARUMOTO, ABE and LEVINSON, JJ., and Circuit Judge LAURETA Assigned by Reason of Vacancy.
ABE, Justice.
This case raises the issue whether appellee, Ernest G. Paschoal, had agreed to sell to appellant, Honolulu Rapid Transit Company, Ltd., all of the shares of stock of Paschoal's, Ltd.
On Saturday, January 14, 1967, appellee and appellant's corporation president, Weinberg, had entered negotiation for the sale of Paschoal's, Ltd. Paschoal had quoted a price of $100,000, and Weinberg had countered with the figure of $75,000.
In the Saturday negotiation the parties had agreed to certain terms and covenants but not to other terms and covenants. Paschoal at the negotiation also informed Weinberg that his wife and his son each owned one-third of the stock of the company.
As they parted on Saturday, Paschoal told Weinberg that he did not think $75,000 was sufficient but that he would talk it over with his wife.
On Sunday Paschoal informed Weinberg that the deal was over because Mrs. Paschoal had decided not to sell.
On Monday, the next day, Paschoal wrote the following letter to Weinberg:
"January 16, 1967
* * * * * *
Dear Mr. Weinberg:
Thank you for your time and patience for coming to Maui to discuss the sale of my company. After discussing the proposal that you proposed with my wife, we decided that we would not settle for less than $100,000 for the whole corporation, excluding the Aloha and Hawaiian Air Lines stocks, which we plan to keep. Since Palms Travel office is included in the deal, a fully appointed travel office with all airline, steampship, railroad, hotels etc, a going business, we decided on the $100,000.
Payment over a ten year period, and my salary of $1,500.00 monthly, security for ten years.
Further on the travel office, the reason I feel it is worth as much as I do, is that I recently sold one of my smaller travel offices in Kahului, not doing the business as my present one, for $5,000.00.
Thank you again Mr. Weinberg, and if you feel that we can come to some agreement, please call me at 323-162, office or 35140, home. Would appreciate hearing from you. Sorry I could not see or call you yesterday and had hoped that Mr. Irving Maeda had explained all this to you.
Yours truly,
/s/ Ernest G. Paschoal
Ernest G. Paschoal
EGP:wp
P.S. As I mentioned to you, there is another interested party who will be out in early February, but am giving you first opportunity."
On Tuesday, January 17, Weinberg telephoned Paschoal and appellant contends that Weinberg "concluded an agreement with Paschoal for the sale of Paschoal's, Ltd., on the terms Weinberg had proposed in Wailuku (with the exception of the Maui *125 Palms Travel Office), but for $100,000 as the purchase price."
During the telephone conversation Paschoal suggested to Weinberg that he call his attorney and also contact Paschoal's attorney so that both parties and their attorneys could get together the following day in Honolulu.
Paschoal did not attend the meeting but sent his accountant Maeda to inform Weinberg that Paschoal had gone to the mainland to talk to his son about the sale.
On January 19, the day after the proposed meeting, appellant's attorney wrote to Paschoal that appellant had unconditionally accepted his offer of January 16. On the following Thursday, January 26, Paschoal's attorney wrote to Weinberg's attorney, denying the existence of a contract.
On or about March 1, 1967, Paschoal agreed to sell all of the shares of stock of Paschoal's, Ltd., to American Transit Company for a consideration considerably in excess of $100,000.
On June 14, 1967, appellant brought this action for specific performance of the alleged contract or for damages for the breach thereof, and the trial court ex parte issued a restraining order restraining appellee from acting to impair appellant's rights.
Several hearings were had and testimonies were taken, and the restraining order was continued on a periodic basis. Final hearing before the trial court was on a motion for summary judgment. However at the suggestion of the attorney for the appellant, the hearing was considered to be on a motion to dismiss. Subsequent to the hearing, the trial court entered a decision holding that there was no binding contract between the parties on several grounds.
The first ground was, as a matter of law, that Paschoal's letter of January 16, 1967 was "not an offer but is an invitation for an offer."
The second ground and its findings of fact were that "the terms of the contract sought to be proved are fatally uncertain and defective in three material terms: (1) the mechanics of obtaining Public Utilities Commission Approval for performance of the alleged contract; (2) the five terms including: employment contract bonus, the amount of down payment, the time for down payment, the amounts of the installments and the time for the payment of the installments; and (3) the terms for security of Plaintiff's performance. The failure of the parties to reach agreement in all of the above enumerated terms renders the contract incomplete, indefinite and unenforceable either in equity or at law."
The third ground was that "the contract sought to be proved deals with the sale of the type of security covered by the Statute of Frauds provision in the Uniform Commercial Code 8-319 [Laws 1965, Act No. 208]. The entire alleged contract, including the stock sale and employment provisions, by its terms could not be performed by either party within one (1) year. Therefore, the Statute of Frauds covering contracts incapable of performance within one (1) year contained in Section 190(1) (e) [190-1(e)], Revised Laws of Hawaii 1955 is applicable."
The fourth ground was that appellant could not enforce the sale of the stock of the entire corporation because appellant had failed to show that Paschoal had authority to sell his wife's or son's shares of stock. Judgment was entered accordingly and appellant appealed from this judgment.
I.
Appellant's contention is that Paschoal's letter dated January 16, 1967, was an offer to sell and that it was accepted by Weinberg thereby forming a binding contract. We disagree with this contention.
The first paragraph of Paschoal's letter contains the following: "we decided that we would not settle for less than $100,000 for the whole corporation. * * *" It was a statement by appellee that he would give consideration to an offer of not less than $100,000. We agree with the trial judge that as a matter of law the letter was nothing more than an invitation for *126 an offer or an invitation to continue negotiation and not an offer to sell for the price of $100,000.
As indicated above, the trial court's finding that the parties had not agreed upon some of the essential terms and covenants tends to substantiate its finding that Paschoal's letter was not an offer.
This point is further substantiated by testimony of Weinberg to wit:
"Q Now Mr. Paschoal indicated to you that it would be necessary that he meet with his attorney and you and your attorney and that you would work out all covenants and conditions which would be included in the contract?
"A That is correct.
"Q And these would include the things that you just discussed as well as others that would be discussed there by
"A Would have to be put down in the contract.
"Q But you would come up with things which he would agree to and he would come up with things you would agree to?
"A That is correct.
"Q That was agreed to in the telephone conversation that you had, you would get together with him and his attorney Don Hamilton as I recall?
"A That is correct.
* * * * * *
"Q And between you you would settle all these covenants and these conditions that would be incorporated in the final agreement, in this agreement?
"A That is right.
In interpreting a similar statement in a telegram the Massachusetts Supreme Court in De Vito v. Boehme & Rauch Co., 239 Mass. 290, 132 N.E. 35 (1921), said at page 37:
"The plaintiff argues that the letter of October 19, 1918, in which the defendant said it `would not pay over $28.00 per ton' for mixed paper stock of a quality specified, was in effect, in the light of previous correspondence, an offer to purchase, which upon its acceptance by the plaintiff constituted a contract. The question of whether a contract was so made was one of law for the court, as there was no ambiguity and as nothing appears in the letters permitting a factual inference * * * the statement that the plaintiff (sic) would not pay over $28 per ton was not an offer to purchase at that price. It represented a step in a negotiation rather than an offer, an invitation rather than a proposal. Its negative statement was not the equivalent of an affirmative proposition. The plaintiff's attempted acceptance was of no avail; and the judge should have instructed the jury that the letters of October 19 and 22, 1918, did not constitute a contract."
Courts of other jurisdictions have also construed similar indefinite and negative statements. Owen v. Tunison, 131 Me. 42, 158 A. 926 (1932); Blakeslee v. Nelson, 212 A.D. 219, 207 N.Y.S. 676, aff'd 240 N.Y. 697, 148 N.E. 763 (1925); Huston v. Harrington, 58 Wash. 51, 107 P. 874 (1910).
We believe that the last paragraph of the letter which begins "Thank you again Mr. Weinberg, and if you feel that we can come to some agreement please call me * * *" and the postscript of the letter informing Mr. Weinberg that there is another person interested in the stock of Paschoal's, Ltd., indicate that Paschoal's letter was not an offer but an invitation for an offer or an invitation to continue negotiation for the purpose of reaching agreement.
II.
Assuming arguendo that Paschoal's letter of January 16, 1967, was an offer, testimony of Weinberg is that he accepted the offer contained in the letter, however, subject to the terms and covenants which had been discussed by the parties on Wailuku on January 14, 1967. It is a well settled rule that a qualified acceptance constitutes a counter offer and a *127 rejection of the original offer. Todorovich v. Kinnickinnic Mut. Loan & Bldg. Asso., 238 Wis. 39, 298 N.W. 226, 135 A.L.R. 818 (1941). Minneapolis, &c., R'y v. Columbus R'g Mill, 119 U.S. 149, 7 S. Ct. 168, 30 L. Ed. 376 (1886).
Now Weinberg having made a counter offer, unless Paschoal accepted this counter offer, there could be no binding contract. Weinberg's testimony is that there was an acceptance by Paschoal. On the other hand, Paschoal in his testimony has denied acceptance and stated that he had indicated to Weinberg that they should get together with their attorneys in Honolulu to work out a deal.
There is no finding by the trial court whether the counter offer had or had not been accepted by appellee. However, we find it unnecessary to decide this issue.
In its findings of fact the trial court stated that when Paschoal wrote on January 16, 1967, the parties had not agreed upon the mechanics of obtaining the public utilities commission's approval for the transfer of the shares of stock of Paschoal's, Ltd.; the amount of bonus to be paid Paschoal under the employment contract; the amount and time of down payment of the purchase price; the sum and time for installment payments; and the nature of security to be furnished by appellant to secure the payment of the full purchase price. Appellant has not specified these findings as error.
We agree with the trial court that mechanics for obtaining approval of the public utilities commission as to the transfer of shares of stock of Paschoal's, Ltd., and the consequence of the failure to get such an approval are essential parts of the agreement. We also agree that the bonus to be payable under the employment contract, amount and date of down payment of the purchase price, the sum and time of installment payments, and the nature of security to be furnished appellee to guarantee appellant's performance of the contract are also all essential and material terms, conditions or covenants of the contract.
Thus, the parties not having reached agreement upon all of the essential and material terms, conditions or covenants of the agreement, there was failure of mutual assent or a meeting of the minds and therefore no binding contract. It is a fundamental principle of law that there must be mutual assent or a meeting of the minds on all essential elements or terms in order to form a binding contract. Richardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E.2d 897, 149 A.L.R. 201 (1943); Martin v. Ewing, 112 W. Va. 332, 164 S.E. 859 (1932); State of Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 3 S. Ct. 211, 27 L. Ed. 936 (1883).
Now, having reached this conclusion, it is not necessary to decide whether the agreement fell within the provisions of either of the statutes of fraud.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345711/ | 174 Ga. App. 351 (1985)
330 S.E.2d 98
GRAHAM
v.
NEWSOME et al. (two cases).
69359, 69543.
Court of Appeals of Georgia.
Decided March 4, 1985.
Rehearing Denied March 29, 1985.
Joe D. Graham, Jr., pro se.
Michael J. Bowers, Attorney General, John C. Jones, Assistant Attorney General, for appellees.
POPE, Judge.
Joe D. Graham, Jr. is an inmate at Georgia State Prison. He filed a pro se action alleging that correctional officers at the institution searched his cell and wrongfully removed a radio, a sapphire ring, a wrist watch, and a pair of sunglasses. Graham was allowed to proceed in forma pauperis. After extensive discovery, a pretrial conference was held, a pretrial order entered, and the case was tried to a jury. The jury returned a verdict for the defendants. After trial the defendants moved the court to assess Graham court costs, and the motion was granted. Graham appeals from the verdict and judgment in case number 69359 and from the assessment of costs in case number 69543. We will consider the two cases together.
*352 1. In his first and third enumerations, Graham argues the trial court erred in not issuing a written order granting him leave to amend his complaint at a status conference held February 22, 1984, and, later, in May, denying him leave to amend. No transcript of the status conference appears in the record. The record shows an order dated May 31, 1984 nunc pro tunc to February 22, 1984 allowing Graham until April 1, 1984 to file discovery in order to amend his complaint. In the period between February 22, 1984 and May 24, 1984, the date of the pretrial conference, Graham made no effort to amend his complaint. "Error must appear from the record sent to this court by the clerk of the trial court. The burden is on the party alleging error to show it affirmatively by the record. Further, there is a presumption in favor of the proper conduct of courts and judicial officers acting within their legitimate sphere." (Citations and punctuation omitted.) Tab Sales v. D & D Distrib., 153 Ga. App. 779, 780 (266 SE2d 558) (1980). OCGA § 9-11-15 allows a party to amend his pleadings as a matter of course and without leave of court at any time before the entry of a pretrial order. Since Graham had the right to amend his complaint before the pretrial order was entered, and did not do so, and since we find nothing in the record to show that the trial court abused its discretion in refusing to allow amendment after entry of the pretrial order, we find no merit in these enumerations.
2. Graham next argues that the trial court erred in not ruling on his discovery motions. Graham does not specify which motions were not ruled upon, nor does he show by the record any harm from such alleged failure to rule. "`The burden is on the appellant to show error by the record, and when a portion of the evidence . .. bearing upon the issues raised by the enumerations of error, is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. [Cits.]'" Jones v. Conlin, 171 Ga. App. 346, 347 (320 SE2d 188) (1984). The pretrial order makes no mention of any unresolved discovery matters. There is no transcript of the trial. Therefore, this enumeration is without merit.
3. Graham enumerates as error the trial court's failure to hold a pretrial conference until after he filed a writ of mandamus. He merely asserts injury in general and cites no authority nor shows by the record any harm. The enumeration is meritless.
4. Graham argues the trial court erred in not appointing him an attorney. This is a civil case, an action for damages. Graham cites us to the federal and state constitutions for his right to counsel. In Spencer v. Hopper, 243 Ga. 532 (2) (255 SE2d 1) (1979), the Supreme Court noted that since habeas corpus was not a criminal proceeding, neither the federal nor state constitution required appointment of counsel. Since an action for damages is not a criminal proceeding, it *353 follows from the decision in Spencer that the trial court did not err in not appointing counsel.
5. Graham next argues that the trial court erred in not causing certain incarcerated witnesses to appear at trial. However, even though Graham contends in his brief, and the defendants concede in their brief, that Graham requested the witnesses at trial, there is nothing in the record to show that subpoenas were properly served and perfected. Without such offer of proof showing service by a method set out in OCGA § 24-10-23, such as a return receipt of registered or certified mail, the trial court cannot enforce the subpoena. See Harrison v. Langston & Woodson, 100 Ga. 394 (2) (28 S.E. 162) (1897). We find no error.
6. Enumerations of error 7 through 11 depend upon consideration of evidence heard by the trial court. Since no transcript has been filed, we must affirm. Curry v. State, 148 Ga. App. 59 (251 SE2d 86) (1978).
7. Finally, Graham argues that the trial court erred in granting defendants' motion for costs against him. He argues that he is a pauper and is thus relieved from the payment of costs. OCGA § 9-15-2 sets out the procedure by which one may be relieved from paying court costs. In effect, one must simply subscribe to an affidavit stating one's inability to pay. Upon such showing, the party is relieved from paying such costs. Any other party at interest may challenge the affidavit of indigence by filing an opposing affidavit to the effect that the averments in the pauper's affidavit are untrue. In addition, the trial court, on its own motion, may inquire into the truth of the affidavit of indigence. Once challenged, the issues regarding the truth of the affidavit must be heard and determined by the trial court. Judgment by the trial court on issues of fact concerning the ability of a party to pay costs is final and not subject to appellate review. Grace v. Caldwell, 231 Ga. 407 (4) (202 SE2d 49) (1973).
The record discloses that neither the defendants nor the trial court ever challenged the truth of Graham's affidavit of indigence. Therefore, it was error for the trial court to assess costs against Graham. See Heath v. McGuire, 167 Ga. App. 489 (4) (306 SE2d 741) (1983). We are aware that many parties, including inmates, may abuse the pauper's affidavit simply to harass an opposing party. However, it is incumbent on parties feeling harassed, or a trial judge who suspects abuse, to challenge the affidavit in accordance with OCGA § 9-15-2.
Judgment affirmed in Case No. 69359. Judgment reversed in Case No. 69543. Banke, C. J., and Benham, J., concur.
*354 ON MOTION FOR REHEARING.
1. We find no merit in Joe D. Graham's motion for rehearing and it is hereby denied.
2. Defendants contend that we erred in Division 7 of our opinion in finding that the trial court erred in assessing costs against Graham. Defendants concede that OCGA § 9-15-2 allows a party to file a civil suit without first paying costs. However, defendants argue that OCGA § 9-15-2 does not completely relieve a pauper of paying costs; if the pauper loses the case, defendants argue, costs are cast upon him just as upon any other losing party. Defendants argue this is mandated by OCGA §§ 9-15-1 and 9-15-11.
OCGA § 9-15-1 reads: "In all civil cases in any of the courts of this state, except as otherwise provided, the party who dismisses, loses, or is cast in the action shall be liable for the costs thereof." OCGA § 9-15-11 provides that when a case is disposed, the costs shall be included in the judgment against the losing party. Defendants argue these two sections, read in conjunction with OCGA § 9-15-2, evince a legislative intent to forgive costs and fees connected with the initial filing of suit in the case of a pauper, but not to forgive ultimate costs in the action if the pauper loses. In support of its argument, defendants cite us to federal decisions, and assert that this is the practice of "virtually every superior court judge of Fulton, DeKalb, Bibb, Butts, Baldwin, Ware and Tattnall Counties. . . ." We are not persuaded by defendants' argument for the following reasons.
The federal statute allowing proceedings in forma pauperis is 28 USC § 1915. Section (a) reads in pertinent part: "Any court of the United States may authorize the commencement, prosecution, or defense of any suit, action, or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs. . ." (Emphasis supplied). Section (e) of the statue reads in pertinent part: "Judgment may be rendered for costs at the conclusion of the suit or action as in other cases. . . ." The federal courts have read their statute to work exactly as defendants argue the Georgia statutory scheme should operate: a pauper's affidavit allows filing and pursuit of the action, but loss of the action authorizes imposition of costs. See, e.g., Robinson v. Howard Univ., 455 A2d 1363 (D.C. 1983); Flint v. Haynes, 651 F2d 970 (4th Cir. 1981). This reading seems eminently correct for the federal statute which is couched in terms forgiving a pauper only the prepayment of fees. However, compare OCGA § 9-15-2: "When any party, plaintiff or defendant, in any action or proceeding held in any court in this state is unable to pay any deposit, fee or other cost which is normally required in the court, if the party shall subscribe an affidavit to the effect that because of his indigence *355 he is unable to pay the costs, the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs." (Emphasis supplied.) It is apparent that the Georgia statute is much broader in scope than is the federal statute. The federal statute waives only the prepayment of costs; the Georgia statute for the pauper waives any deposit, fee, or other cost; it further states that the party is relieved from paying costs and his rights are considered as if he had paid. OCGA § 9-15-1 simply states the general rule that the losing party pays costs, except as otherwise provided. Clearly, OCGA § 9-15-2 is the exception. OCGA § 9-15-11 is simply an express direction of how the mandate of OCGA § 9-15-1 is to be carried out. Where OCGA § 9-15-1 does not apply, clearly OCGA § 9-15-11 is also inapplicable.
Defendants argue that our decision creates a group of "super citizens . . . incarcerated felons" who may rampage through the courts filing frivolous and harassing suits at will, and that without the ability to assess costs, defendants are powerless to stop these evil "super citizens." Two responses to this argument are in order. First, as defendants note in their own brief, those inmates who have absolutely no money have nothing to fear from the assessment of costs; they would not be deterred regardless of any assessment, for they are judgment-proof. In other words, they are paupers within the meaning of OCGA § 9-15-2. Second, our decision in no way removes from defendants the ability to deter those inmates who have some money by assessing costs. If the inmate has money, defendants or the court on its own motion may traverse the pauper's affidavit. If the court finds that the inmate is not a pauper and assesses costs, that factual finding is final and will not be reviewed by this court.
However, in this case the pauper's affidavit was never traversed, and there is nothing in the record to show that the trial court made any finding of fact regarding Graham's ability to pay. Therefore, it was error to assess costs. Portis v. Evans, 249 Ga. 396 (1) (291 SE2d 511) (1982); Martin v. State, 151 Ga. App. 9 (9) (258 SE2d 711) (1979).
Judgment adhered to. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345715/ | 285 S.C. 614 (1985)
330 S.E.2d 559
Danny K. BURRIS, Respondent,
v.
LAKE WYLIE MARINA, INC., Appellant.
0479
Court of Appeals of South Carolina.
Heard March 21, 1985.
Decided May 21, 1985.
Earl R. Gatlin, of Hayes, Brunson & Gatlin, Rock Hill, for appellant.
Peter M. Perrill, Rock Hill, for respondent.
Heard March 21, 1985.
Decided May 21, 1985.
SANDERS, Chief Judge:
Respondent Danny K. Burris sued appellant Lake Wylie Marina, Inc., to rescind a contract. The jury returned a verdict in favor of Burris. The Marina appeals. We affirm.
*615 Burris entered into a contract purchasing a boat from the Marina. The sales agent for the Marina assured him that the boat was a "demonstrator." Burris attempted to return the boat after discovering that it was not a demonstrator but a used boat. The Marina refused to take the boat back and Burris brought this action.
Section 36-2-608 of the 1976 Code of Laws of South Carolina provides in part:
(1) The buyer may revoke his acceptance of a ... unit whose nonconformity substantially impairs its value to him if he has accepted it ... without discovery of such nonconformity if his acceptance was reasonably induced... by the seller's assurances.
Whether the nonconformity of a product substantially impairs its value to a buyer is a question of fact and not one of law. Erling v. Homera, Inc., 298 N.W. (2d) 478 (N.D. 1980); McGilbray v. Scholfield Winnebago, Inc., 221 Kan. 605, 561 P. (2d) 832 (1977).
The Marina argues that the trial judge erred in failing to grant its motions for nonsuit, directed verdict and judgment notwithstanding the verdict because there is no evidence that the fact the boat was a used boat substantially impaired its value to Burris. We reject this argument. A former employee of the Marina, who had done warranty repair work on the boat before it was discovered that the boat was a used boat, testified as follows:
Q. Whether it was a new or a demonstrator boat would mean that it would have a warranty as opposed to a used boat not having a warranty?
A. Yes, sir, I was under the impression of that until at a time it was discovered that it was a used boat and then I didn't do any more warranty work after that.
Q. So it is a distinct difference between a used or demonstrator boat as far as the warranty is concerned and a used boat?
A. Yes sir.
Although the former employee had previously testified Burris did not ask him to do any other warranty work on the boat, his testimony as to the boat not having a warranty for *616 future repairs is evidence which justified submitting the case to the jury and is sufficient to support its verdict. Cf. South v. Sherwood Chevrolet, Inc., 277 S.C. 372, 287 S.E. (2d) 490 (1982). (Affirmed verdict for buyer based on allegation of fraud by seller in representing a 1978 model truck to be a 1979 model.)
Accordingly, the judgment in favor of Burris is
Affirmed.
SHAW and GREGORY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264344/ | 879 F.Supp. 1419 (1995)
Jake AYERS, Jr.; Bennie G. Thompson; Virginia Hill; B. Leon Johnson; Pamela Gipson, Individually and on behalf of All Others Similarly Situated; et al., Plaintiffs,
United States of America, Plaintiff/Intervenor,
v.
Kirk FORDICE, Governor, State of Mississippi, W. Ray Cleere, Commissioner of Higher Education; Board of Trustees of State Institutions of Higher Learning, Diane Martin Miller, President, Nan McGahey Baker, Vice President, William S. Crawford, Frank Crosthwait, Ricki R. Garrett, Will A. Hickman, J. Marlin Ivey, James W. Luvene, J.P. "Jake" Mills, Carl Nicholson, Jr., Cass Pennington, Sidney L. Rushing, Members; Delta State University, Kent Wyatt, President; Mississippi State University, Donald W. Zacharias, President; Mississippi University For Women, Clyda S. Rent, President; University of Mississippi, R. Gerald Turner, Chancellor; University of Southern Mississippi, Aubrey K. Lucas, President; et al., Defendants.
No. 4:75CV009-B-O.
United States District Court, N.D. Mississippi, Greenville Division.
March 7, 1995.
*1420 *1421 *1422 *1423 Alvin O. Chambliss, Jr., North Miss. Rural Legal Services, Oxford, MS, Otis Berry, North Miss. Rural Legal Services, Lexington, MS, Callestyne Hall-Crawford, North Miss. Rural Legal Services, Greenwood, MS, Robert Pressman, Center for Law and Educ., Cambridge, MA, Armand Derfner, Charleston, SC, Solomon Osborne, Willie J. Perkins, Greenwood, MS, J. Clay Smith, Washington, DC, for private plaintiffs.
Laverne Younger, Judith Keith, John Moore, Craig Crenshaw, Jr., Franz Marshall, U.S. Dept. of Justice, Washington, DC, John R. Hailman, Felicia Adams, Asst. U.S. Attys., Oxford, MS, for government/intervening plaintiffs.
William F. Goodman, Jr., Paul Stephenson, III, William F. Ray, Watkins & Eager, Mike Moore, R. Lloyd Arnold, Allen Purdie, Office of Atty. Gen. State of Miss., Greg Hinkelbein, Atty. for Governor, Jackson, MS, for defendants IHL Bd. & State of Miss.
TABLE OF CONTENTS
STATEMENT OF THE CASE ................................................ 1427
CONTENTIONS OF THE PARTIES ........................................... 1428
A. DEFENDANTS ...................................................... 1428
*1424
B. UNITED STATES/PRIVATE PLAINTIFFS ................................ 1428
FINDINGS OF FACT
ADMISSIONS ........................................................... 1430
A. CONTENTIONS ..................................................... 1430
B. OVERVIEW ........................................................ 1430
C. POLICIES AND/OR PRACTICES GOVERNING UNDERGRADUATE
ADMISSIONS STANDARDS ........................................... 1431
1. ACT CUTOFFS .................................................. 1431
2. ACT CUTOFFS AND ALUMNI CONNECTION AS A BASIS FOR
THE AWARD OF SCHOLARSHIPS ................................... 1433
3. EXCEPTIONS ................................................... 1434
CONCLUSION: UNDERGRADUATE ADMISSIONS ................................. 1434
GRADUATE ADMISSIONS STANDARDS ........................................ 1435
A. OVERVIEW ......................................................... 1435
B. DISPARATE IMPACT ................................................. 1436
CONCLUSION: GRADUATE SCHOOL ADMISSIONS ............................... 1436
MISSIONS/ACADEMIC PROGRAMS ........................................... 1436
A. CONTENTIONS ...................................................... 1436
B. OVERVIEW ......................................................... 1437
C. UNDERDEVELOPED NON-UNIQUE INSTITUTIONS ........................... 1437
1. BACKGROUND .................................................... 1437
(a) MISSION DESIGNATIONS ...................................... 1438
(b) ALLOCATION OF PROGRAMS .................................... 1439
(c) ALCORN STATE UNIVERSITY (ASU) ............................. 1439
(d) JACKSON STATE UNIVERSITY (JSU) ............................ 1440
(e) MISSISSIPPI VALLEY STATE UNIVERSITY (MVSU) ................ 1440
2. ACCREDITATION .................................................. 1441
PROGRAM DUPLICATION .................................................. 1441
A. CONTENTIONS ...................................................... 1441
B. OVERVIEW ......................................................... 1441
C. UNNECESSARY DUPLICATION .......................................... 1441
1. BACKGROUND .................................................... 1441
2. HWIs VERSUS HBIs (Percentage of Duplication) .................. 1442
3. UNIQUENESS .................................................... 1442
(a) JSU versus HWIs (Unnecessary Duplication) ................. 1442
(b) ASU versus HWIs (Unnecessary Duplication) ................. 1442
(c) MVSU versus HWIs (Unnecessary Duplication) ................ 1443
(d) HWIs versus HBIs (Percentage Of Unnecessary Duplication) .. 1443
D. PROGRAM INITIATION AND ELIMINATION ............................... 1443
E. OFF-CAMPUS OFFERINGS/DESTRUCTIVE COMPETITION ..................... 1444
CONCLUSION: PROGRAM DUPLICATION; ACCREDITATION; MISSIONS ............. 1444
A. DUPLICATION ...................................................... 1444
B. ACCREDITATION .................................................... 1445
C. MISSIONS ......................................................... 1445
NUMBER OF UNIVERSITIES ............................................... 1445
A. CONTENTIONS ...................................................... 1445
B. OVERVIEW ......................................................... 1446
FUNDING POLICIES AND PRACTICES ....................................... 1446
A. CONTENTIONS ...................................................... 1446
B. PREVIOUS FINDINGS: FUNDING ....................................... 1446
C. FUNDING FORMULA .................................................. 1447
1. INSTRUCTION .................................................. 1447
2. RESEARCH ..................................................... 1448
3. PUBLIC SERVICE ............................................... 1448
4. ACADEMIC SUPPORT ............................................. 1448
5. REMAINING FORMULA COMPONENTS ................................. 1448
D. FORMULA IMPACT ................................................... 1449
E. OUTSIDE THE FORMULA FUNDING ...................................... 1451
1. LINE ITEM FUNDING ............................................ 1451
*1425
2. ENDOWMENTS ................................................... 1451
F. EQUITY .......................................................... 1451
CONCLUSION: FUNDING ................................................. 1452
FACILITIES .......................................................... 1453
A. CONTENTIONS ..................................................... 1453
B. OVERVIEW ........................................................ 1453
C. BACKGROUND ...................................................... 1453
1. FACILITIES/PROJECT FUNDING ................................... 1453
2. PREVIOUS FINDINGS CAPITAL IMPROVEMENTS FUNDING ............. 1454
3. PREVIOUS FINDINGS REPAIR AND RENOVATION FUNDING ............ 1454
4. ALLOCATION OF FACILITIES RESOURCES TODAY ..................... 1454
D. QUALITY ......................................................... 1456
1. PREVIOUS FINDINGS ON "INSTITUTIONAL CHARACTER" ............... 1456
2. ADDITIONAL FINDINGS ON "INSTITUTIONAL CHARACTER" ............. 1456
E. LIBRARIES ....................................................... 1456
F. EQUIPMENT ....................................................... 1457
G. LAND ............................................................ 1457
H. FOOTBALL STADIUM ................................................ 1457
I. FACILITIES AND STUDENT CHOICE ................................... 1457
CONCLUSION: FACILITIES .............................................. 1457
EMPLOYMENT .......................................................... 1459
A. CONTENTIONS ..................................................... 1459
B. OVERVIEW ........................................................ 1459
C. RACIAL IDENTIFIABILITY .......................................... 1459
D. FACULTY SALARIES ................................................ 1459
E. RANK AND TENURE ................................................. 1460
F. RECRUITMENT ..................................................... 1460
1. PREVIOUS FINDINGS RECRUITMENT AND HIRING ................... 1460
2. ADDITIONAL FINDINGS RECRUITMENT AND HIRING ................. 1460
3. QUALIFIED POOL ............................................... 1461
4. DEFENDANTS' EFFORTS IN MINORITY EMPLOYMENT ................... 1462
CONCLUSION: EMPLOYMENT .............................................. 1462
LAND GRANT .......................................................... 1463
A. CONTENTIONS ..................................................... 1463
B. OVERVIEW ........................................................ 1463
C. BACKGROUND ...................................................... 1463
1. RESIDENT INSTRUCTION ......................................... 1464
2. RESEARCH ..................................................... 1465
3. EXTENSION .................................................... 1465
CONCLUSION: LAND GRANT .............................................. 1466
CLIMATE ............................................................. 1466
A. CONTENTIONS ..................................................... 1466
B. OVERVIEW ........................................................ 1466
C. RACIAL CLIMATE IN GENERAL ....................................... 1466
1. THE UNIVERSITY OF MISSISSIPPI ................................ 1467
2. MISSISSIPPI STATE UNIVERSITY ................................. 1468
3. THE UNIVERSITY OF SOUTHERN MISSISSIPPI ....................... 1468
4. DELTA STATE UNIVERSITY ....................................... 1469
5. MISSISSIPPI UNIVERSITY FOR WOMEN ............................. 1469
D. CONTINUING RACIAL IDENTIFIABILITY ............................... 1469
E. RETENTION ....................................................... 1470
F. STUDENT CHOICE AND THE HWIs ..................................... 1470
G. STUDENT CHOICE AND THE HBIs ..................................... 1470
CONCLUSION: CLIMATE ................................................. 1471
GOVERNANCE/BOARD OF TRUSTEES ........................................ 1472
A. CONTENTIONS ..................................................... 1472
B. BACKGROUND ...................................................... 1472
C. TODAY ........................................................... 1473
*1426
CONCLUSION: GOVERNANCE .............................................. 1473
FAILURE TO PLAN/ASSESS .............................................. 1473
A. CONTENTIONS ..................................................... 1473
B. OVERVIEW ........................................................ 1473
CONCLUSION: FAILURE TO PLAN/ASSESS .................................. 1474
ACCESS: COMMUNITY COLLEGES .......................................... 1474
A. OVERVIEW ........................................................ 1474
B. BACKGROUND ...................................................... 1474
CONCLUSION: COMMUNITY COLLEGES ...................................... 1475
ATHLETIC CONFERENCES ................................................ 1476
GRADUATE COUNCILS ................................................... 1476
CONCLUSION: INTERACTION OF POLICIES AND PRACTICES FOSTERING
SEPARATION OF THE RACES; THE SCOPE OF THE VIOLATION ................ 1477
DEFENDANTS' PROPOSED REMEDIES ....................................... 1477
ADMISSIONS .......................................................... 1477
A. OVERVIEW ........................................................ 1477
B. PROPOSAL ........................................................ 1477
1. OVERVIEW ..................................................... 1477
2. SPRING PLACEMENT PROCESS ..................................... 1478
3. SUMMER PROGRAM ............................................... 1478
C. IMPACT PROJECTED FOR NEW ADMISSIONS STANDARDS ................... 1479
D. PROPOSED REMEDIES/ADMISSIONS .................................... 1479
1. PRIVATE PLAINTIFFS ........................................... 1479
2. UNITED STATES ................................................ 1480
E. CRITIQUE: ADMISSIONS ............................................ 1480
CONCLUSION: UNDERGRADUATE ADMISSIONS ................................ 1481
MISSIONS ............................................................ 1483
A. OVERVIEW ........................................................ 1483
B. PROPOSAL ........................................................ 1483
1. JACKSON STATE UNIVERSITY ..................................... 1483
2. ALCORN STATE UNIVERSITY ...................................... 1483
C. PROPOSED REMEDIES: MISSIONS ..................................... 1483
1. JSU: Private Plaintiffs ...................................... 1483
2. JSU: United States ........................................... 1484
D. CRITIQUE: MISSIONS .............................................. 1484
1. JSU .......................................................... 1484
2. ASU .......................................................... 1484
CONCLUSION: MISSIONS ................................................ 1484
A. JSU ............................................................. 1484
B. ASU ............................................................. 1486
PROGRAM DUPLICATION ................................................. 1486
NUMBER OF INSTITUTIONS .............................................. 1487
A. OVERVIEW ........................................................ 1487
B. PROPOSAL: MERGER OF DSU AND MVSU ................................ 1487
1. THE DECISION TO MERGE ........................................ 1487
2. CRITIQUE ..................................................... 1487
(a) Historical Precedent ..................................... 1487
(b) Fiscal Responsibility .................................... 1487
(c) Size and Character of the Merged Institutions ............ 1488
C. PROPOSAL: MERGER OF MUW AND MSU ................................. 1488
1. THE DECISION TO MERGE ........................................ 1488
2. CRITIQUE ..................................................... 1489
(a) Background ............................................... 1489
(b) Impact on Desegregation .................................. 1489
CONCLUSION: NUMBER OF UNIVERSITIES .................................. 1489
CONCLUSIONS OF LAW .................................................. 1493
REMEDIAL DECREE ..................................................... 1494
ADMISSIONS .......................................................... 1494
MISSIONS ............................................................ 1494
APPENDIX ................................................. APPENDIX - 1496
PRIVATE PLAINTIFFS ...................................... APPENDIX - 1496
UNITED STATES ........................................... APPENDIX - 1498
*1427 MEMORANDUM OPINION AND REMEDIAL DECREE
BIGGERS, District Judge.
Jarndyce and Jarndyce drones on. The ... suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into it; innumerable old people have died out of it. Scores of persons have found themselves made parties in Jarndyce without knowing how or why. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into another world. Fair wards of court have faded into mothers and grandmothers; a long procession of judges has come in and gone out; thirty to forty counsel have been known to appear at one time; costs have been incurred to the amount of many thousands of pounds; there are not three Jarndyces left upon the face of the earth perhaps, but Jarndyce and Jarndyce still drags its dreary length before the court....[1]
More than a few parallels can be drawn between the cases of Jarndyce and Fordice. Although one is fictional and the other very real, and one involves the settlement of a family estate while the other requires a vast inquiry into the constitutional rights of a class of people as they relate to a system of colleges and universities, similarities do exist. Those parallels, while interesting to compare, are not relevant here, however, and better left for the reader who might so choose to draw for himself from the novel describing Jarndyce, cited above, and the opinions chronicling Fordice, cited below.
STATEMENT OF THE CASE
This class action suit was instituted on January 28, 1975 against the Governor of Mississippi, the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, the Commissioner of Higher Education and other officials and the five historically white universities in the State of Mississippi. The class was certified by the court as:
all black citizens residing in Mississippi whether students, former students, parents or taxpayers who have been, are or will be discriminated against on account of race in ... the universities operated by the said Board of Trustees.[2]
After years of settlement negotiations and discovery, a six-week trial took place from April 17 through June 1, 1987. On December 10, 1987, this court found that the State's policies in the field of higher education were race-neutral and ruled in favor of the defendants on all issues. Ayers v. Allain, 674 F.Supp. 1523 (N.D.Miss.1987). The plaintiffs appealed the court's ruling to the Fifth Circuit Court of Appeals where a divided panel reversed and remanded the cause for remedial proceedings. Ayers v. Allain, 893 F.2d 732 (5th Cir.1990). On rehearing en banc, the Fifth Circuit vacated the panel opinion and reinstated this court's findings of fact and conclusions of law. Ayers v. Allain, 914 F.2d 676 (5th Cir.1990). On April 15, 1991, the United States Supreme Court granted certiorari. Ayers v. Mabus, 499 U.S. 958, 111 S.Ct. 1579, 113 L.Ed.2d 644 (1991).
On June 26, 1992, the Supreme Court ruled that the State's adoption of race-neutral policies to govern its public higher education system, the ratio decidendi for this court's previous decision, did not go far enough in fulfilling the State's affirmative obligation to disestablish its prior de jure segregated system. Holding that dismantlement of the State's prior "segregative admission policy" is insufficient to find in favor of the State where "policies traceable to the de jure system are still in force and have discriminatory effects," United States v. Fordice, *1428 ___ U.S. ___, ___, 112 S.Ct. 2727, 2736, 120 L.Ed.2d 575 (1992), the Supreme Court remanded this cause to this court to "consider the State's duties in their proper light" in determining whether or not the State has "met its affirmative obligation to dismantle its prior dual system." Fordice, ___ U.S. at ___, 112 S.Ct. at 2743. "If policies traceable to the de jure system are still in force and have discriminatory effects, those policies ... must be reformed to the extent practicable and consistent with sound educational practices." Fordice, ___ U.S. at ___, 112 S.Ct. at 2736.
In 1987, this court made extensive findings of fact concerning the higher education system of Mississippi. Without attempting to delineate "an exclusive list of unconstitutional remnants of Mississippi's prior de jure system," the Supreme Court identified "admission standards, program duplication, institutional mission assignments and continued operation of all eight public universities" as "constitutionally suspect policies ... of the present system." Fordice, ___ U.S. at ___, 112 S.Ct. at 2738. Accordingly, this court's task on remand is to "examine, in light of the proper standard, each of the other policies now governing the State's university system that have been challenged or that are challenged ... in light of the standard" articulated in Fordice. Id.
On September 25, 1992 this court issued an order setting a status and scheduling conference for October 22, 1992.[3] In response to that order, the defendants unveiled their proposal for modification of the higher education system. After extensive settlement negotiations proved unfruitful, the trial of the case began on May 9, 1994.
One hundred and three witnesses whose testimony covered more than 11,000 pages of transcript were heard over the span of ten weeks, and approximately 60,000 pages of exhibits were admitted. On remand, the court has made additional findings of fact and conclusions of law pursuant to Fed. R.Civ.P. 52.
CONTENTIONS OF THE PARTIES
As a point of departure, the court will initially set out the positions of the parties with regard to this court's previous undisturbed findings of fact, additional challenged policies on remand and, in general, the scope of these proceedings.
A. DEFENDANTS
Essentially, it is the defendants' position that their liability has yet to be established and cannot now be established because its proposed system-wide reorganization has completely dismantled the prior de jure system to the extent educationally sound and practicable. Allegedly, that reorganization, the details of which will be thoroughly explored herein, has eliminated whatever segregative effects past policies and practices observed by the Supreme Court as "constitutionally suspect" might have had.
With regard to the additional challenged policies and practices on remand, as well as those that were challenged in 1987, the defendants' position is essentially that the issues raised by the plaintiff parties are either specifically precluded by this court's previous undisturbed findings of fact, or alternatively, now foreclosed by the decision in Fordice.
B. UNITED STATES/PRIVATE PLAINTIFFS
The United States and the private plaintiffs do not share the same analytical approach to the policies and practices of Mississippi's higher education system that they contend is constitutionally deficient in most if not all aspects. However, their delineation of allegedly unlawful systematic policies and practices is in most material respects alike. With a few notable exceptions, addressed infra,[4] primarily their differences are confined *1429 to the proper emphasis placed on the evidence adduced over the long history of this action.
In the area of agreement, the plaintiff parties' position may be summed up as follows: that the State of Mississippi is not now in compliance with the United States Constitution; that the State's proposed reorganization scheme will not eliminate the continuing segregative effects of past discriminatory practices traceable to the de jure era; and that the areas challenged in 1987 and not examined under the correct legal analysis, as well as additional areas challenged on remand, are further examples of policies and practices traceable to the de jure past that have continuing segregative effects and must be now eliminated or reformed to the extent educationally sound and practicable.
As identified in the pleadings, both the private plaintiffs and the United States allege that certain "aspects, features, policies and practices of the defendants are remnants of the de jure system, and are examples of racial discrimination carried out by the defendants."[5] Each plaintiff party separately identifies policies and practices that allegedly violate the law and while many of those identified are similar and in some cases, exactly alike, each of the policies or practices is treated below. The United States' submission both in the text and in the appendix attached hereto is identified by the characters "US" followed by the number of the alleged remnant/unlawful practice. The private plaintiffs' submission is identified by the letter/number combination employed in the pretrial order (example "A5."). Except where specifically noted, when referenced as a group, the historically white universities or institutions will be designated as "HWIs." The HWIs consist of the University of Mississippi ("UM"); The University of Southern Mississippi ("USM"); The Mississippi University for Woman ("MUW"); The University of Mississippi Medical Center ("UMMC"); Mississippi State University ("MSU"); and Delta State University ("DSU"). Except where specifically noted, when referenced as a group, the historically black universities or institutions will be designated as "HBIs". The HBIs consist of Jackson State University ("JSU"); Alcorn State University ("ASU"); and Mississippi Valley State University (MVSU"). Record citations will be abbreviated as follows: Trial on Remand Transcript [witness] [page]; 1987 Trial Transcript (1987) [witness] [page]; Trial on Remand Exhibits [Party]X [no.]; 1987 Trial Exhibits (1987) [party]X [no.].[6] The court will initially treat the alleged remnants and challenged policies and practices that coincide with the areas outlined by the Supreme Court in Fordice.
FINDINGS OF FACT
In viewing the facts of this case, the court has attempted to be vigilant in viewing them as they affect the constitutional rights of persons, and avoid the easier but erroneous exercise of viewing colleges and universities as the entities whose rights are being litigated here. Since most of the testimony and the vast majority of the documentary evidence *1430 have pertained to the eight universities in the higher education system, it has often been perceived by some that this case is about rights of colleges and universities to equal funding, numbers of programs and quality of facilities; but the Fourteenth Amendment provides that "no state shall deny to any person the equal protection of the laws" (emphasis added). The Constitution does not provide educational institutions with constitutional protections. The remnants of de jure segregation have been mandated by the Supreme Court in Fordice to be identified by this court and analyzed as to educational soundness and practicality. The historically racially predominant colleges both black and white are remnants so identified herein; however, those institutions are relevant to this inquiry because they affect the constitutional rights of persons, not because institutions themselves possess constitutional protections. In applying the analysis mandated by Fordice to the facts of this case, the court has consistently viewed those facts in the light of how they affect persons and avoided any analysis based on the allocation of constitutional rights to the colleges and universities which, although understandably loved and revered by their respective alumni, are merely institutions created by state statutes.
ADMISSIONS
A. CONTENTIONS
The plaintiffs allege that the State is in violation of the law for failing to eliminate the effects of segregation as they pertain to the following areas: (1) the use of the ACT assessment instrument in determining undergraduate admissions; (2) use of ACT scores in determining entry to programs; (3) using ACT scores for awarding scholarships; and (4) institutional use of exceptions to the regular admissions requirements. The plaintiffs allege that the admissions standards also operate in connection with other factors to direct black students to the HBIs in this state.
B. OVERVIEW
The court has previously addressed university entrance requirements in the opinion issued after the 1987 trial. At that time, admissions standards for first-time entering freshman required completion of a specific high school core curriculum and achievement of a specified score on the American College Test (hereinafter "ACT"). Exceptions from this requirement were available for students failing to satisfy these standards; however, the numbers of students enrolling under such exceptions were limited by the institution affording the exception. Ayers, 674 F.Supp. at 1530-36, 1554-57.
In 1987, admissions standards differed among universities according to the historic racial identifiability of the institutions. In general, the HWIs required an ACT score of 15 for regular admission;[7] exceptions were limited to the greater of 5% of the preceding year's freshman class or 50 students for students attaining an ACT score of at least 9. The HBIs required an ACT score of only 13 for regular admission. ASU and MVSU allowed exceptions up to 10% of the university's total Fall enrollment for the previous year, while JSU allowed exceptions up to 8% of the previous year's freshman class for students attaining an ACT score of at least 9. No university in the system allowed admission, conditional or otherwise, for students attaining below a 9 on the ACT. Ayers, 674 F.Supp. at 1534-35, 1556. In 1987 this court observed that the ACT was a "highly relevant status report on student school achievement"; that "the ACT, as a standardized instrument, enables educators to assess uniformly the level of academic preparation of students graduating from high schools across the state"; that the ACT "provides information necessary for student placement and serves as a valid predictor of academic performance during the first year of college" and that both nationally as well as in Mississippi, African-American students "scored somewhat lower" on the ACT. Ayers, 674 F.Supp. at 1534, 1556.
The old ACT was administered for the last time in 1989. In the Fall of 1989, the ACT organization substituted the Enhanced ACT Assessment (hereinafter "EACT") for the ACT Assessment used in 1987. The ACT *1431 used in 1987 consisted of a battery of tests in the following four subject areas: English, mathematics, "social studies reading," and "natural sciences reading." The battery of tests under the EACT consists of English, mathematics, reading and science reasoning tests. Concordance tables were published by ACT for use by institutions in converting scores earned on the old ACT to the appropriate EACT score. As explained by the publishers, "[e]ach concordant value for the Enhanced ACT Assessment has as nearly as possible the same relative standing (percentile rank)'in the national sample as does the corresponding score on the current ACT Assessment." ACT also provides an "estimated score interval" which reflects "the probable interval within which a student's score would have fallen if he or she had taken the Enhanced ACT Assessment instead of the current ACT Assessment."[8]
In October, 1989 the Board of Trustees of State Institutions of Higher Learning (the Board) solicited recommendations from the eight universities with regard to new admissions standards based on the Enhanced ACT. Each HWI recommended use of an EACT score of 18 for regular admission, the concordant value of which under the old ACT score was approximately 15. Thus, the new admissions requirements at the HWIs remained substantially the same as those under the previous ACT. The HBIs, rather than recommend use of an EACT score of 17, with a concordant value of 13 on the old ACT, the score previously required by the HBIs for regular admission, recommended adoption of an EACT score of 15 for regular admission, the concordant value of 11 on the old ACT. Thus, in 1989 the HBIs, in effect, lowered their admissions requirements by this recommendation.[9]
For students classified as "high risk," UM, DSU and MSU recommended an EACT score range from 14 to 17, the concordant values of which ranged from 9 to 14 on the old ACT. USM requested a composite EACT minimum score of 16 for this classification of students, and MUW requested a minimum EACT score of 15. For high risk admissions, the HBIs recommended EACT scores ranging from 12 to 14, the concordant values of which ranged from 7 to 10 under the old ACT. Additionally, JSU increased its percentage of allowable high risk admittees from 8% to 10%. The Board approved all institutional recommendations. From 1990 to 1994, differential admissions standards persisted in the system, which as detailed above, basically utilized a version of the 1987 standards with various exceptions.[10]
C. POLICIES AND/OR PRACTICES GOVERNING UNDERGRADUATE ADMISSIONS STANDARDS
1. ACT CUTOFFS[11]
The ACT test is designed to measure and evaluate the general educational development of a student at the particular time the test is taken. The prevailing view in education is that, while as a diagnostic instrument the ACT is a source of useful information, it is inappropriate to use ACT scores as the sole criterion for admission to an institution.[12] Other measurements of a student's potential, including high school grade point average (hereinafter "GPA"), rank in high school class and teacher evaluations, when used in conjunction with ACT scores are in general more highly correlated with college academic performance than a performance predicted by use of the ACT test score alone.[13] Analysis of enrollment data spanning the years 1988 through 1992 indicates that over 60% of the students enrolled at the HBIs scored below 15 on the ACT compared with approximately 85% of the enrolled students at the HWIs scoring above 15 on the ACT.[14] Of course, the 85% of students referred to includes *1432 both black and white students at HWIs.
White students continue to score consistently higher on standardized tests in general than black students. This phenomenon is present not only in Mississippi and other de jure states but also in non de jure states throughout the United States.[15] It is also generally recognized that Asians score higher on these tests than Caucasians. It is estimated that approximately 19% of black Mississippians who take the test score 12 or below. Regarding this phenomenon, the court has heard opinion that (1) for black students, it is not clear that ACT test scores accurately predict academic performance; (2) in general, test scores are not accurate predictors of performance for students from disadvantaged backgrounds; and, consequently, (3) the use of ACT cutoff scores has a negative effect upon access and educational opportunity to students from poor socioeconomic backgrounds. Regardless of whether the ACT is a flawed predictor of black student performance, the preponderance of opinion affirms that there is a clear correlation among success with standardized tests, the past degree of educational opportunity experienced by the test taker and preparedness for college work.[16] Finally, the average or mean ACT scores are increasing for both black and white Mississippians.
The court has heard extensive testimony regarding the various disparities in public school districts[17] throughout the state and the demographic makeup of those districts. The private plaintiffs contend that the State's discriminatory treatment of its black citizens pervasive during its prior de jure history has to some degree shaped the socioeconomic plight of those citizens and helped to contribute to the lesser degree of educational attainment of its black citizens. Previous state authorities had recognized this variance and during the de jure period in this state's history, instituted discriminatory policies accordingly.[18] As of 1994, however, the defendants had undertaken to correct the variance in ACT scores by race through such measures as participation in a mandatory College Preparatory Curriculum or "core."
At least since the 1980's, establishment of a prescribed "core" curriculum in high schools has become common throughout the country. Uniformly, the core consists of a battery of college preparatory courses designed to better prepare high school students for the college experience,[19] and has been described as providing "the informational basis for doing well in college generally, and for significant academic growth and development."[20] Not surprisingly, participation in the core is related and correlates to increased ACT scores.[21]
In Mississippi, the results of participation in the core are likewise consistent. In 1986, the first-year students completed the core as it now exists, and mean ACT scores increased and significantly so for minority students. *1433 While participation in the core has increased over time for both black and white high school students, over 40% of the ACT test takers today still indicate a lack of complete participation in the core.[22]
Addressing among other things the recognized disparity in college-going rates as between black and white Mississippians, in 1989 the Board developed a program known as "Project 95." As described by board members, Project 95 is a formal collaborative effort among the Institutions of Higher Learning (IHL) system, the community college system and the primary/secondary public school system. Dr. Charles Pickett, Associate Commissioner of Academic Affairs for the Board, a graduate of a historically black high school and a HBI, described Project 95 as a vehicle designed to bridge the gap between high school and college and to make more accessible to minorities higher education without weakening admissions requirements.[23]
2. ACT CUTOFFS AND ALUMNI CONNECTION AS A BASIS FOR THE AWARD OF SCHOLARSHIPS[24]
Board policy allows each institution to waive state non-resident fees for out-of-state students who wish to attend college in Mississippi by providing alumni scholarships, provided the applicant has a minimum ACT score of 21 and is the child of a nonresident alumnus. Evidence has been presented which shows a marked disparity in percentage awarded by race in any given year.[25] It is contended that because of the historical exclusion of blacks from the HWIs, and the statistical difference between ACT scores of blacks and whites, these restrictions on financial aid to students from other states discriminate against black student applicants.[26]
Additionally, the plaintiffs have pointed to numerous instances of institutional policies of the HWIs regarding use of an ACT cutoff score as the sole criterion for the award of academic scholarship monies.[27] It is contended that basing scholarship dollars on ACT cutoffs, set beyond the range of what most black students achieve on the test, eliminates this source of aid to black students and is educationally unsound because a student's overall academic performance is a more reasonable basis for making a decision about scholarship aid.[28]
*1434 3. EXCEPTIONS[29]
The number of "at risk" exception slots (available for students making below the required minimum ACT score) at the HWIs for the time period 1986-1992 was consistently lower than those available at the HBIs for the same time period.[30] While there is considerable evidence to indicate that the HWIs were disinterested in using the admissions exceptions available to them and, likewise, failed to publish those exceptions to the same extent as the HBIs[31] for the time period 1986-1992, the HWIs consistently used a substantial portion of the available exceptions to their minimum test score requirements.[32]
CONCLUSION: UNDERGRADUATE ADMISSIONS
The court finds that the admissions standards that existed at the time of trial in 1987, although racially neutral on their face, were discriminatory when viewed under the legal standard established in Fordice and should be altered.[33] Moreover, Dr. Anderson, historian for the United States, amply supplied the factual predicate regarding the traceability of the ACT component of the 1987 standards[34] implicit in this court's initial ruling[35] and, thus, additional findings of fact regarding the traceability of those admissions standards are neither necessary nor useful. Likewise, the segregative effect of such differential admissions policies cannot be denied in view of their operation in a system of higher education where racially identifiable institutions provide essentially many of the same academic course offerings in identical or overlapping service areas. The defendants' current proposal seeks to eliminate this vestige of the de jure era, and it is clear that under the Fordice analysis the admissions standards have served to channel black students to the HBIs. It should be noted that the lower ACT requirements at the HBIs were put into effect by the Board only after recommendations by the HBI presidents, but it is the Board's responsibility to manage the higher education system in accordance with constitutional principles. The effect of the recommendations to the Board to key the entrance requirements at the HBIs lower than at the HWIs resulted in the "channeling effect" described in Fordice, ___ U.S. at ___, 112 S.Ct. at 2739, and must now be remedied.
As noted earlier, the performance of Mississippi's black citizens on the standardized entrance tests is statistically lower than that of whites. While the court agrees with the defendants that it is not their obligation to remedy every societal ill which the plaintiffs can establish has a nexus to the de jure past, it is now clear that their duty does encompass eradication of the ACT cutoff score as a sole criterion for admission to the system when the ACT is used in conjunction with differing admissions standards between the HBIs and HWIs. That is not to say that the use of an ACT cutoff in all circumstances is unlawful however. Rather, its particular use in any circumstance must be examined to consider whether as a component of the policy challenged, the same is traceable to prior de jure segregation.
The Board's policy of allowing alumni scholarships to be based on ACT cutoffs and the use of ACT cutoff scores as the sole criterion for the receipt of academic scholarship monies has not been proven to have linkage with the de jure system, and there is *1435 no evidence that these practices currently foster separation of the races such as influencing student choice.[36] Therefore, reformation of these policies cannot be ordered consistent with the law of the case, absent evidence of discriminatory purpose of which the court finds none. The use of ACT scores in awarding scholarships is widespread throughout the United States and generally viewed as educationally sound.
The court finds that the plaintiffs have failed to prove the allegation that the HWIs do not use their admissions exceptions "to a substantial degree." While true that the HWIs have not to the time of trial encouraged exceptions to their admissions requirements, neither use of nor the failure to use exceptions to the regular admissions requirements is traceable to the prior de jure system.
The State and other defendants have greatly improved access to the higher education system for minorities. In the age group 18 to 24, black enrollment in public higher education in Mississippi per thousand blacks in the population is higher than the national mean and black enrollment per thousand blacks in many non de jure states.[37] While the experts disagree as to the exact degree of black participation in the higher education system[38] and, thus, the effectiveness of those measures designed to increase black participation, there is no per se policy or practice of minimizing the participation of African-Americans in the system. As Dr. James Wharton pointed out, some states, California being one, have set the entrance requirements for their universities at a level which makes it very difficult for black high school graduates to gain admittance to any university. Conversely, institutions in Louisiana, a state having open admissions, suffer from a very high attrition rate resulting in students owing one, two or three years of college expenses and having little or nothing to show for it. Such students were admitted without having the preparation to do the college work.[39]
The question has been posed to the court whether blacks as a group should have the same statistical opportunity to be admitted to college as whites, as determined by the admissions policies.[40] To gain statistical parity there would have to be different admissions standards based on race. The court rejects that approach. As Dr. Wharton testified, in California Asians do significantly better than Caucasians on the entrance tests. Are the California policies discriminatory against the Caucasians since the Asians are admitted in higher percentages of applicants than the Caucasians? Should admissions policies to universities be set so that racial groups can be admitted in equal percentages of applicants?[41] The court must reject any such proposal as well as open admissions to universities.
Remnants outside of the admissions arena that may have a negative effect on black access to the system will be addressed elsewhere.
GRADUATE ADMISSIONS STANDARDS[42]
Challenged for the first time on remand, it is the contention of the plaintiff parties that the use of standardized cutoff scores for entry into graduate programs at the HWIs is both traceable to the prior de jure system as well as currently producing segregative effects.
A. OVERVIEW
Mississippi institutions began using the Graduate Record Exam or "GRE" in the *1436 1960s.[43] The GRE is a common diagnostic tool designed to measure a student's qualifications for graduate study, and in particular a student's verbal, quantitative and analytical abilities. There have been literally thousands of validity studies[44] on the ability of the GRE to predict performance in graduate school. The results of those tests indicate that GRE general test scores "are slightly to moderately predictive of graduate first-year grade point average."[45] In other words, GRE subscores have limited power to predict how well individuals will actually do in their first year of graduate school. As a result of these and similar studies, it has been determined that a student's undergraduate grade point average is consistently a better predictor of academic success in graduate school than GRE scores.[46]
B. DISPARATE IMPACT
Studies indicate that black examinees score, on average, 129 scale points below white examinees on the verbal section of the GRE. The disparities on the quantitative and analytical segments are 152 and 151 scale points, respectively. Because of the limited predictive power of the GRE, use of an absolute cutoff score for admission to programs is strongly cautioned against by the makers of the test, the use of which will invariably lead to many classification errors in the admissions process. Many persons who are admitted will fail whereas many others excluded would have succeeded. The Educational Testing Service or "ETS" on behalf of the Graduate Record Examinations Board has published guidelines for the proper and appropriate uses of the GRE. Guidelines promulgated by ETS include strictures against using GRE scores as the sole criterion for admission into a program. The guidelines also recommend institutions to conduct validity studies in conjunction with the use of the GRE scores and advise against combining the three measures (verbal, quantitative and analytical) to determine the appropriate entrance requirements and, finally, caution against basing decisions on small score differences.[47]
CONCLUSION: GRADUATE SCHOOL ADMISSIONS
Graduate School catalogs promulgated by UM, MSU and USM indicate various violations of the GRE guidelines ranging from aggregation of the three GRE subscores to the apparent use of GRE cutoff scores in the admissions process. The defendants have conceded through their witnesses that the catalogs may infer violations of ETS criteria and are misleading but maintain that, in actual practice, certain universities do not practice GRE subscore aggregation or use the GRE test results as cutoff scores for entrance to any particular program.
Institutional aggregation of test scores for admission criteria appears to have disparate impact upon blacks. Moreover, like the ACT, the announcement of a minimum cutoff score more likely than not affects student choice to some degree. While the defendants have denied institutional misuse of the GRE and other graduate admissions tests, they have undertaken to reform these policies and to modify their catalogs to reflect the proper employment of the GRE consistent with sound educational practice as reflected by the publisher's guidelines. Inasmuch as they have undertaken that duty, the court will order that completed within a specified period and the modifications presented to the Monitoring Committee, the creation and function of which will be described hereinafter, for review.
MISSIONS/ACADEMIC PROGRAMS
A. CONTENTIONS
The United States has raised as a remnant "[w]hether the defendants have perpetuated *1437 segregation ... by deterring other-race enrollment in the traditionally black public universities through the assignment of institutional missions and scopes." The United States addresses the defendants' assignments of institutional missions together with funding, program duplication, land grant programming, facilities, employment, the number of universities and athletic competition as components of what they identify as "Policies and Practices Bearing Upon the Ability of the Historically Black Institutions to Attract Diverse Student Populations."
B. OVERVIEW
In 1987 this court found that the differential mission designations were "rationally based on sound educational policies and are not violative of the Equal Protection Clause." Ayers, 674 F.Supp. at 1561. The standard articulated by the Supreme Court now requires the court to revisit that conclusion in light of the Fordice analysis and apply it to the various components that make up the system of higher education in Mississippi to which mission is closely tied. Previous findings of fact made by the court in 1987 remain relevant to this analysis and to that degree will be specifically reiterated.
C. UNDERDEVELOPED NON-UNIQUE INSTITUTIONS[48]
The 1987 opinion set forth the historical development of each of the eight Mississippi universities. Ayers, 674 F.Supp. at 1526-28. Since this institutional history was incorporated into the court's 1987 opinion, it is easily available and will not be included herein; however, some historical information is necessary to put into perspective the rationale underlying the court's findings and remedies. A brief historical sketch of the development of each HBI to the degree relevant to the allegations of the plaintiff parties regarding the traceability of its underdevelopment is deemed necessary. Prior to that analysis, however, the court will attempt to briefly describe the historical circumstances out of which these institutions developed in an effort to put into context the higher education institutional landscape as it exists today. The historical context is helpful in illuminating facets of the system in an effort to determine whether the same are vestiges of the prior de jure system.
1. BACKGROUND
The Mississippi Constitution of 1890 included a clause, known as the interpretation clause, which was designed to disenfranchise black Mississippians. The clause required potential registrants for voting to interpret a provision of the constitution chosen by the local registrars. The testimony of Dr. James Loewen was that the decline in educational opportunity for black Mississippians was directly tied to the interpretation clause. The less education members of the black population of the state possessed, the less their ability to properly interpret the state constitution and accordingly exercise the franchise.[49] A central premise of education of blacks after the establishment of ASU in 1871, was that blacks could only benefit from agricultural or mechanical training, rather than a liberal education that was provided for its white citizenry. Accordingly, after 1890, state appropriations for black education dropped dramatically. The State reduced appropriations for ASU during this period but the institution was nonetheless allowed to exist because of its emphasis on the teaching of agricultural skills rather than on providing a liberal education.[50]
In keeping with the design of restricting the educational opportunities of its black citizens, educational facilities for African-Americans even primary and secondary schools were scarce in Mississippi up until the 1940s-50s.[51] By 1952-53, although the black secondary school population in the state was larger than the white secondary school population, *1438 there were only approximately one-third as many black secondary school teachers as there were white teachers. Also during this time, most black high schools offered only one or two years of high school and approximately 69% of the black teachers were without a college degree.[52] The lack of qualified black school teachers is explained in part by the absence of black normal schools designed to educate and train teachers.
The State Normal School at Holly Springs, founded in 1873, was the first and only such institution designated for the training of black teachers in Mississippi but that institution was closed by Governor Vardaman in 1904. From 1904 until 1940, the State of Mississippi had no facilities designated for the training of black teachers. The lack of primary and secondary schools for black Mississippians also had a significant impact on black college-going rates during this time period. In 1940, while 5.5% of the white adults in Mississippi had attained a college degree, only approximately .3% of the adult black population had done so.[53] By 1925, white Mississippians could choose among five public institutions of higher learning. Black Mississippians had only ASU. Undoubtedly, the lack of institutions of higher learning for blacks was also significant in its impact on the black attendance rate in Mississippi during this period.[54] At the time of the Supreme Court's decision in Brown[55] in 1954, 10% of all college degrees awarded by state universities were earned by blacks,[56] although they comprised an estimated 45% of the population.[57]
(a) MISSION DESIGNATIONS[58]
In 1965-66, the Board authorized role and scope studies whereby each university was requested to study its respective strengths and weaknesses and to make recommendations as to its development for approximately the next ten years. Additionally, the institutions were requested to submit recommendations for programmatic expansion during the ensuing period consistent with their identified strengths. In 1974, the board staff itself began a study of the role and scope of the eight institutions, the result of which was a document produced in 1977 which assigned the leadership positions in the system of higher education to only USM, UM and MSU.[59]
In 1981, the Board assigned missions to the various institutions of higher learning in Mississippi. A university's "mission" is that which defines the institution relative to all other institutions within the system. The Board designated MSU, UM and USM as "comprehensive" universities, a designation which implied that these institutions did and could offer the greater number and higher level of degree programs than the remaining institutions. Ayers, 674 F.Supp. at 1539. JSU was designated as an "urban" university whose emphasis was "oriented toward service of the urban community". of Jackson, Mississippi. Id. ASU, DSU, MUW and MVSU "received the designation of `regional' Universities. The `regional' designation signifies a more limited programmatic focus for these institutions, that is, each is expected to restrict course offerings to quality undergraduate instruction." Ayers, 674 at 1539-40.
The 1977 system study became the working document from which the 1981 Mission Statement was developed with only minor alterations. One difference between the role *1439 and scope document of 1977 and the Mission Statement of 1981 is the fact that JSU was designated as an "urban" university. The classification of ASU and MVSU as regional universities limited their offerings at the masters level. The 1981 Mission Statement had the effect of maintaining the status quo[60] with respect to programmatic offerings at JSU, MVSU, ASU, MUW and DSU and is consistent with the development of the institutions during the de jure period.[61]
In considering the programmatic scope of the universities and comparing the programs of the HWIs with those of the HBIs, it is perhaps easy to fall into the perspective that views fewer comparable offerings at a HBI as indicia of discrimination against black students who are enrolled or might later choose to enroll in the HBIs but, when viewed from the perspective of the Constitution, citizens are not deprived of equal protection of the law where an equal opportunity exists to attend either the more comprehensive HWIs or the less comprehensive HBIs and that opportunity is truly unfettered by vestiges of the past such as, inter alia, differential admissions requirements.
(b) ALLOCATION OF PROGRAMS[62]
The years 1945 through 1970 were marked by considerable expansion of the system and the period is sometimes referred to as the "college boom years." During this time period, college enrollment increased substantially at both the HBIs and the HWIs, although the lion's share of the state's higher education resources was received by the comprehensive institutions, particularly in the area of programmatic allocations. From 1949-59, approximately 40 doctoral programs were authorized, all of which were developed at USM, MSU, and UM. MSU and USM in particular experienced substantial growth during this time period.[63]
There were no master's degree programs offered at the HBIs in the state until 1951-52 when a master's degree program in education was established at JSU. There were no doctoral degree programs offered in the HBIs in the state until a doctorate in early childhood education was established at JSU. And although JSU gained an "urban" mission in 1981, further expansion into the doctoral arena was not encouraged because MSU, UM and USM were already performing those missions. As was true in 1987, there continues to be no professional programs at the HBIs in the state.[64]
Analysis of the time period 1966 to 1974 indicates the extent of programmatic expansion at the HWIs during this time proximate to the Board's role and scope studies in 1966 and again in 1974-77. From 1966-1974, no HBI offered a doctoral program whereas during this same time period, MSU increased its doctoral offerings from 26 to 35; UM from 18 to 28; and USM from 14 to 37. While ASU offered a master's degree program in 1966, none was available at that school in 1974. JSU experienced substantial growth at the masters level during this time period and increased its number of masters programs from 2 in 1966 to 23 by 1974. With the exception of UM, all HWIs also experienced substantial growth during this time period at the masters level.[65] Next follows a more detailed review of the institutional histories of Mississippi's HBIs.
(c) ALCORN STATE UNIVERSITY (ASU)
ASU is the oldest land grant college established for blacks in the United States. Ayers, 674 F.Supp. at 1527. Prior to its founding in 1871, there were no state institutions of higher learning that blacks could attend. Because of the political climate during the early years of reconstruction, ASU did relatively *1440 well in its early years. Its first governing boards were composed exclusively of black persons and its annual appropriations from the state equaled the state appropriation for the University of Mississippi, the only other state institution for higher learning at that time. ASU received three-fifths ( 3/5 ) of the 1862 Morrill funds upon its founding and, although founded as the land grant counterpart to UM, ASU's function was primarily undergraduate teacher education. In 1875, the Democrat Party returned to power in Mississippi and ASU's fortunes began to wane. ASU's state appropriation for 1875 was reduced substantially and, by 1896, the governing board for the university was all white.[66]
ASU received substantial programmatic enhancement in the years following de jure segregation. Although offering only six undergraduate programs in education and several in the agricultural and mechanical arts during de jure segregation, ASU's academic structure now consists of seven divisions.[67]
Today, ASU offers thirty-four undergraduate programs, four masters programs, and one specialist degree.[68] ASU has currently 1700 acres, approximately 400 of which house academic facilities. The institution, classified as a regional university, enjoyed salary levels for associate and assistant professors higher on average than either DSU or MUW, its HWI regional peers, both in 1991-92 and again in 1992-93.[69]
(d) JACKSON STATE UNIVERSITY (JSU)
JSU was acquired by the State of Mississippi in 1940 for the express purpose of providing a training school for black teachers for the black public schools in the state. Ayers, 674 F.Supp. at 1528. Prior to its acquisition, JSU was "Jackson College," a private four-year institution founded in the 1880's. Jackson College was forced to move to its present location on Lynch Street in downtown Jackson in 1902 because of racial hostility at the site of the institution's former location in an area of Jackson near present day Millsaps College.[70]
Upon its acquisition by the State of Mississippi, Jackson College was downgraded to a two-year institution and its name was changed to Mississippi Negro Training School. By 1944, JSU had regained four-year status and its mission was broadened after 1954 to a liberal arts and sciences institution with graduate education in teaching.[71] From 1967 through 1984, JSU experienced "a tremendous period of growth." 674 F.Supp. at 1538.[72] Today, JSU offers thirty-four undergraduate programs, twenty-eight master's degree programs, five specialist degrees, and four doctoral programs.[73]
(e) MISSISSIPPI VALLEY STATE UNIVERSITY (MVSU)
Located in the Mississippi Delta region near Itta Bena, MVSU was established in 1946 for the purpose of training black teachers for service in the rural and elementary black schools. MVSU also provided vocational training. Ayers, 674 F.Supp. at 1528. The institution, then known as Mississippi Vocational College, opened its doors in 1950. After its founding, its role initially was that of vocational training at the precollege level, a focus which gradually shifted to the status of an undergraduate institution with heavy emphasis on education and the production of teachers.[74]
*1441 In 1964, Mississippi Vocational College changed its name to Mississippi Valley State College and achieved accreditation for the first time in 1968. In 1974, the college was bestowed the name "University" by the legislature and became Mississippi Valley State University.
MVSU began offering graduate courses in 1976. As of 1974, MVSU offered the same number of bachelor's degree programs as DSU, the regional HWI 35 miles away, one more than MUW, and four to twelve more than JSU and ASU. MVSU presently only offers one post-baccalaureate level degree. While MVSU has been substantially reduced programmatically since 1974, the present number of programs it offers is comparable with that of one of its HWI regional counterparts, MUW. Today, MVSU offers nineteen undergraduate degree programs and one master's degree program.[75]
2. ACCREDITATION[76]
As of 1961, ASU, JSU and MVSU were not accredited institutions; however, today they all have attained accreditation. In 1992, ASU was given notice of several deficiencies in its teacher education programs relating to the areas of its library holdings, faculty and financial resources, but has retained its accreditation. Since 1980, with the possible exception of JSU, the overall percentage of programs accredited at all universities has increased substantially.[77] Today, all public universities are accredited by the Southern Association of Colleges and Schools (SAC) and none are currently on probation.[78]
PROGRAM DUPLICATION
A. CONTENTIONS
Phrased as the question "whether the defendants have since 1954 engaged in any actions which have the effect of increasing or perpetuating racial separation among Mississippi public institutions of higher education, including, inter alia, the maintenance and operation of traditionally white institutions, or branches thereof, in close proximity to traditionally black institutions," as well as the "placement of academic programs," the inquiry into program duplication is closely related to the off-campus offerings issue.
B. OVERVIEW
In 1987, the court rejected the plaintiffs' challenge to the duplicative offerings between proximate institutions. On remand, the plaintiffs again retained their expert in program duplication, Clifton Conrad, who presented essentially the same analysis as that which he presented in 1987. In 1995, the court again revisits this issue in light of the legal standard articulated in Fordice.
C. UNNECESSARY DUPLICATION[79]
1. BACKGROUND
"Program duplication refers to those instances in which broadly similar programs are offered at more than one institution. A program is defined as necessarily duplicated if the presence of that program is essential for the provision of general education or specialized education in the basic liberal arts and sciences at the baccalaureate level. Program duplication and necessary duplication refer to the core programs, that is, programs that are considered to be essential.[80] Unnecessary duplication refers to those instances where two or more institutions offer the same nonessential or noncore program. Under this definition, all duplication at the bachelors level of nonbasic liberal arts and sciences course work and all duplication at the masters level and above are considered to be unnecessary." Ayers, 674 F.Supp. at 1540 *1442 (emphasis added). The CIP (Classification of Instructional Programs) classification scheme in higher education superseded the HEGIS (Higher Education General Information Survey) classification scheme in the late 1980s. (Conrad's duplication analysis in 1987 was based on the HEGIS classification scheme.) In simplest terms, the CIP classification is the six-digit numerical designation that identifies programs offered in higher education.[81]
2. HWIs VERSUS HBIs (Percentage of Duplication)
By comparison of the programs identified by CIP designation throughout Mississippi's system of higher education, 77% of the programs offered at one or more of the three HBIs at the bachelors level are also offered or duplicated at one or more of the five HWIs; 83% of the programs offered at one or more of the HBIs at the masters level are duplicated at one or more of the five HWIs; and 60% of the programs offered at one or more of the HBIs at the specialists level are duplicated at one or more of the five HWIs. Finally, 25% of the doctoral programs offered at one or more of the HBIs are duplicated at one or more of the five HWIs. There is no duplication between the HBIs and the HWIs at the professional level because the HBIs offer no professional programs, i.e., programs in law, pharmacy, medicine, etc.[82]
3. UNIQUENESS
"Unique" programs are those not duplicated by another public institution in the system. Programs classified as unique under this definition need not be popular only scarce.[83] Using this definition, JSU has four unique programs at the bachelors level; three unique programs at the masters level; two such programs at the specialists level and three unique programs at the doctoral level. ASU has seven programs at the bachelors level and one unique program at the masters level which are not offered by any of the five HWIs. MVSU has three unique programs at the bachelors level when compared with the five HWIs and one at the masters level. "Meaningful uniqueness" has been defined as the presence of a reasonable number of high demand[84] noncore programs at one university that are unduplicated anywhere else in the system.[85] Using this approach to scrutinize program offerings, as a group, the HWIs have a large degree of programmatic uniqueness as compared with the HBIs as a group.[86]
(a) JSU versus HWIs (Unnecessary Duplication)
At the bachelors level, sixteen out of seventeen CIP programs classified by Dr. Conrad as noncore that were offered at JSU are duplicated by one or more of the five HWIs. At the masters level, twenty-five out of twenty-eight noncore CIP programs offered at JSU are duplicated by one or more of the five HWIs. At the specialists level, three out of five noncore CIP programs offered at JSU are duplicated by one or more of the five HWIs. At the doctoral level, one out of the four CIP programs identified as noncore offered at JSU are duplicated by one or more of the five HWIs.[87]
(b) ASU versus HWIs (Unnecessary Duplication)
At the bachelors level, eleven out of fifteen noncore programs offered at ASU are duplicated by one or more of the five HWIs. At the masters level, three out of four noncore programs offered at ASU are duplicated by one or more of the five HWIs. At the specialist level, the only noncore program offered *1443 at ASU is duplicated by one or more of the five HWIs.[88]
(c) MVSU versus HWIs (Unnecessary Duplication)
At the bachelors level, eight out of ten noncore programs offered at MVSU are duplicated by one or more of the five HWIs.[89] At the masters level, there is no duplication between the masters program offered by MVSU and the masters programs at the HWIs.[90]
(d) HWIs versus HBIs (Percentage of Unnecessary Duplication)
By comparison of the programs identified by CIP designation throughout Mississippi's system of higher education, 40% of the bachelors programs identified as noncore offered at one or more of the three HBIs are unnecessarily (according to Conrad's classification) duplicated at one or more of the five HWIs; 83% of the masters programs offered at one or more of the HBIs are unnecessarily duplicated[91] at one or more of the five HWIs; 60% of the specialist programs offered at one or more of the HBIs are unnecessarily duplicated at one or more of the five HWIs; finally, 25% of the doctoral programs offered at one or more of the HBIs are unnecessarily duplicated at one or more of the five HWIs.[92]
D. PROGRAM INITIATION AND ELIMINATION
The process for approval of new programs is as follows. First, a notification of intent is sent to the Commissioner of Higher Education by the institution, notifying him that it intends to develop a new program. Second, a formal proposal is developed and sent to the Board that includes justification for the program, faculty credentials of those expected to participate, the expected cost of the program and its possible duplication with other programs in the system. A conference between university officials and the board staff occurs, after which time the proposal goes before the Board along with the staff's recommendations of approval or disapproval. Finally, after consideration of the staff's recommendations, the Board votes to approve or disapprove the proposed program.[93]
"Unnecessary Duplication" as defined by the Board is the existence of two or more identical or very similar programs at two or more institutions at the same time where the programs are either not critical components of the mission of the institution or are without documented demand and/or documented need. Thus, teacher education programs offered at both JSU and USM are not unnecessarily duplicative since both are critical to the missions of each university (both having begun as teacher colleges) and also supported by a documented need in the state for teachers.[94]
By 1986, the Board had completed a comprehensive review of all programs offered at the institutions of higher learning in Mississippi. Approximately four hundred programs were eliminated throughout the system as unnecessarily duplicative according to the Board's definition. Thereafter, the Board initiated a program review process which, as currently practiced, operates essentially as follows: programs are flagged after enrollment or graduation rates drop below a certain figure predetermined by the Board; once enrollment drops below that preestablished level, the board staff consults with university officials at which time the university is given an opportunity to justify the program's continued existence in light of the noted deficiencies.[95] As a result of the program review process, there has been a net decrease system-wide of seventy-seven programs since 1987, but none have been eliminated *1444 at a HBI because of low enrollment in the program.[96]
E. OFF-CAMPUS OFFERINGS/DESTRUCTIVE COMPETITION[97]
Since 1987, JSU has had control of an attractive complex in Jackson formerly known as the Universities Center and now known as the JSU Graduate Center. Programs of other public universities offered there or in Jackson include (1) a fifth year of MSU's architecture program; (2) in-service public service training programs offered by USM as well as a small library science program; (3) a small graduate program in engineering; a doctorate in higher education and a paralegal program offered by UM; and finally (4) a "smattering" of unidentified courses offered by MUW.[98]
CONCLUSION: PROGRAM DUPLICATION; ACCREDITATION; MISSIONS
A. DUPLICATION
The Supreme Court noted that "[i]t can hardly be denied that such duplication was part and parcel of the prior dual system of higher education the whole notion of `separate but equal' required duplicative programs in two sets of schools and that the present unnecessary duplication is a continuation of that practice." Fordice, ___ U.S. at ___, 112 S.Ct. at 2727. As the higher education system exists today, duplication of programs among institutions continues to be pervasive; however, that is true of all systems throughout the country which have more than one university. Whether or not continuation of that duplication is educationally justifiable in light of the proposed revisions to the system, and after a Fordice analysis is conducted, is the question before the court.
Throughout the United States, duplicative course offerings between proximate institutions is a matter of concern in regard to fiscal irresponsibility and usually nothing more. Where duplication is by design as in the former de jure states of the South, the fact that a degree of duplication among once racially exclusive institutions presently exists is not objectionable until and unless that duplication (1) is found to have segregative effects and (2) can be reformed "consistent with sound educational practices." Fordice, ___ U.S. at ___, 112 S.Ct. at 2736.
A point to be noted initially is the similarity in the parties' definition of "unnecessary duplication." Both the plaintiffs' expert's definition of unnecessary duplication and the Board's approach to unnecessary duplication hinge in a sense upon core and noncore programs. The difference essentially is that the Board equates core with institutional mission, documented demand, and possible need. Such a notion of core programs immensely expands the scope of necessary duplication. Conversely, the plaintiffs' analysis is constructed upon a university framework remote in time from today's educational environment, and expands the field considerably so that nonessential or noncore programs include such highly desirable or high demand programs as elementary/secondary teacher education and business. Both analyses have their usefulness as well as their drawbacks in relation to approaching the issues involved in this cause.
The Board's approach to programmatic control and duplication is typical of that found throughout the United States[99] and, thus, could be characterized as an educationally sound "business as usual" approach to duplication. Under this approach, assuming the de jure dual curriculum has been dismantled, nothing more need be said or, more importantly, done. Conversely, the United States' approach, while having no meaning or use outside of a university system without both historically white and historically black universities,[100] more directly focuses upon issues relevant in this lawsuit, namely, what is and is not being offered at the HBIs and whether that which is has some chance of *1445 desegregating those institutions. As the United States' expert is first to acknowledge, analysis of duplication by CIP codes tells little of the internal makeup of programs such as program emphasis, quality, and/or the relative academic rigor of the program. Similarly, duplicative CIP programs at two universities may lead to an altogether different degree at each university.[101] As such, it is difficult to accept the proposition that Conrad's analysis actually yields an answer to the threshold question he himself poses: "[h]as this formally de jure curriculum system been dismantled?"[102] It is reasonable to conclude that (1) program emphasis (2) perceived quality and (3) degree sought play some role in student choice. Thus, standing alone, the extent to which these factors conspicuously distinguish programs at each university has some bearing on whether program duplication as it now exists promotes a racial choice of institutions. The duplication issue, however, does not stand alone and the element of differential admissions standards operating in conjunction with similar institutional offerings between the HBIs and HWIs, as the Supreme Court pointed out, raises a serious inference that this duplication continues to promote segregation.
B. ACCREDITATION
There has been little evidence presented on the accreditation issue as it stands today. Dr. Anderson's opinion that the lack of program and institutional accreditation during the de jure period negatively impacted upon the prestige of the institution is clearly warranted from the historical record as well as consistent with other witnesses' opinions regarding this question. While it is obvious that the State of Mississippi was less than attentive to the HBIs during de jure segregation, there is no evidence that the State's previous failings in this regard persist into the present day. As noted earlier, since 1980 the percentage of programs accredited at all universities has increased substantially.
C. MISSIONS
Regarding the mission designations, it is clear to the court that the present limited missions of ASU, MVSU and JSU are remnants of the past and that their position vis-a-vis the HWIs today was caused by the State's past educational policies and practices in a variety of ways.
The Supreme Court in Fordice observed that "[t]he mission designations have as their antecedents the policies enacted to perpetuate racial separation during the de jure segregated regime." Fordice, ___ U.S. at ___, 112 S.Ct. at 2742. Moreover, "when combined with the differential admission practices and unnecessary program duplication, it is likely that the mission designations interfere with student choice and tend to perpetuate the segregated system." Id. As with the prior admissions standards, the Supreme Court indicated both the traceability of this practice[103] as well as the potential segregative effects that the differential mission designations continue to foster in Mississippi. To eliminate any doubt that the limited mission designations of the HBIs are the result of policies and practices traceable to the de jure past, the plaintiffs again presented testimony of numerous witnesses which, in detail, provides the factual predicate upon which traceability of this facet of the current higher education system is clearly established. The fact that two of the three HBIs are underdeveloped institutions by state design does not in and of itself lead to the conclusion that they currently foster separation of the races at the undergraduate level. Whether or not the Board's proposals eliminate the "likely" interference caused by the limited missions of the HBIs working in conjunction with pervasive program duplication and differential admissions standards will be addressed infra.
NUMBER OF UNIVERSITIES
A. CONTENTIONS
As noted earlier, the defendants contend that this alone is the only remnant of the *1446 past presently having segregative effects, without sound educational justification and in need of reforming. On this point there is at least common ground as to the traceability of the policy of maintaining eight universities.[104]
B. OVERVIEW
The most emotionally charged issue in this case, the number of institutions the state has chosen to maintain, "in itself makes for different choices, particularly when examined in the light of other factors present in the operation of the system, such as admissions, program duplication, and institutional mission designations." Fordice, ___ U.S. at ___, 112 S.Ct. at 2742. On this issue there are no additional findings of fact necessary to determine the traceability of the practice and, in the case of the geographical proximity of the institutions in the Delta, the segregative effects, when viewed in the context of the admissions standards, and the duplicative program offerings at those proximate institutions are also evident. Although the State now proposes to eliminate this vestige of the de jure past by moving to a six-university system, whether or not that proposal is mandated by the Fordice analysis will be reviewed within the context of the court's critique of the defendants' merger and consolidation proposal.
The plaintiffs' position on this subject throughout this litigation has been at times contradictory. On one hand, the Plaintiffs vigorously defend MVSU's bid for continued existence, a position which has some basis for argument[105] as a school for nurturing and supporting disadvantaged students, but one which on its face appears contradictory to the ends of student desegregation in the Delta. On the other hand, the plaintiffs also vigorously defend MUW's fight to remain a free-standing institution on the ground that the proposed merger of MUW and MSU will have no impact upon desegregation.[106] If MUW's continued existence as a part of the higher education system has no effect on desegregation, then the plaintiffs have no standing to urge that the Board's proposed merger of MUW and MSU be rejected by the court.
FUNDING POLICIES AND PRACTICES[107]
A. CONTENTIONS
On this issue, the plaintiffs have posed the question as follows: "[w]hether the State of Mississippi has allocated resources to the traditionally black institutions of a kind and degree sufficient to give them a realistic opportunity to attract white students."[108] The plaintiff parties allege that funding of the HBIs poses a barrier to their successful desegregation inasmuch as allocation of greater funding for the comprehensive universities equates with greater funding per full-time equivalent (FTE) student so enrolled, thereby effectively eliminating the HBIs as viable choices for attendance by white students and stigmatizing the HBIs as inferior institutions. The defendants continue to contend that the only sound educational basis for higher education funding is funding of universities based on what they do or are expected to do. Although the issue encompasses all sources of funding, the primary focus of the plaintiff parties is the funding formula employed by the defendant Board to distribute the funds allocated by the State for the purpose of financing the higher education of its citizens.
B. PREVIOUS FINDINGS: FUNDING
It is the Board's responsibility to allocate the legislative general support appropriation *1447 among the respective institutions. The general support appropriation does not include funds for capital improvements, the Mississippi Agricultural and Forestry Experiment Station, or the Mississippi Cooperative Extension Service. Ayers, 674 F.Supp. at 1546.
In previously concluding that "the funding formula does not treat the predominantly black institutions inequitably," the court based its finding on (1) the institutional groupings of the universities as reflective of their approximate funding needs; (2) the fact that during the time period 1981-82 through 1986-1987 departures from the formula allocation had benefited the HBIs; and (3) comparison of the funding for the HBIs with funding of institutions of like character within the region. Ayers, 674 F.Supp. at 1546-48.
C. FUNDING FORMULA[109]
Developed in 1974, the funding formula in place at the time of the first trial is described in the court's previous decision at 674 F.Supp. 1546-47. In November of 1987, subsequent to the first trial, the Board adopted a new formula for funding institutions of higher learning. The formula consists of the following components: (1) instruction; (2) research; (3) public service; (4) academic support; (5) student services; (6) institutional support; (7) operation and maintenance of plant; and (8) scholarships and fellowships. The board staff requests funding for higher education twelve months in advance. Essentially, each formula component represents the following percentages of the total budget in FY 1994-95: (1) instruction 58.21%; (2) research 2.02%; (3) public service .60%; (4) academic support 9.43%; (5) student services 5.28%; (6) institutional support 10.34%; (7) operation and maintenance of plant 11.05%; (8) scholarships and fellowships 3.07%.[110]
1. INSTRUCTION
The instruction component of the formula is derived in the following manner. First, the previous year's student credit hours produced by each university are totaled and divided by a predetermined standard to determine the FTE students that each university had during the preceding fiscal year. All undergraduate hours are divided by 30; graduate hours by 24. Once the division is made, the number of FTE students per university is derived. Next, to determine the number of FTE instructors a university has generated, a staffing ratio table is consulted.[111] The number of FTE students per discipline is calculated and the staffing ratio table determines the number of FTE instructors. Stated another way, FTE instructors per university are determined by the number of FTE students previously enrolled by discipline and level of instruction.[112]
After the number of FTE instructors are calculated, a faculty salary survey[113] is consulted to determine the average faculty salary in the region per discipline per institutional type. The total instructional salary budget is thus determined by applying the average faculty salaries derived from the survey to the total number of FTE instructors by discipline in each division, upper, lower and graduate. All universities are thus calculated and totaled for a figure that represents the total need for faculty salaries systemwide. To the total amount of faculty salaries is added an amount for fringe benefits. Calculated as a percentage of salary, the fringe benefits percentage changes yearly and is keyed to the current rate allowed other state *1448 employees. Finally, the instructional component includes an amount for departmental expense also calculated as a percentage of the total faculty salary amount. The amount budgeted for departmental expense is designed to cover departmental secretaries, faculty travel and instructional supplies and equipment.[114]
2. RESEARCH
The research component is separately budgeted and calculated as a dollar amount per doctorate degree awarded. Funding varies by discipline similar to the faculty salary discipline differences. That is, it is assumed that doctoral instructional costs vary by discipline. Research formula funding is provided only to the universities that award doctoral degrees.[115]
3. PUBLIC SERVICE
Funding for public service is provided as a base amount per university. Funding in this category is based upon the mission of the university as it existed at the time the formula was created. The base amount for the three comprehensive universities and JSU are the same. All other universities within the system receive a lesser amount.[116]
4. ACADEMIC SUPPORT
Academic support funding provided to each university under the formula consists of three components: staffing support, allocation for library holdings and an allocation for academic administration. The staffing support allocation is a base amount that varies among three institutional groupings: MSU, UM and USM receive the most as "comprehensive" universities; DSU and JSU as "Doctoral III" institutions are next in line followed by ASU, MUW and MVSU, as the three "regional" universities. The amount allocated to each institution for library holdings is based on a 1986 system study which determined that the system should have approximately 5,400,000 volumes. A percentage of that projected amount is allocated to each university based upon the programs and enrollment of the universities as they then existed. The sum calculated for academic administration is a percentage of the three preceding formula components: instruction, research and public service. For fiscal year 1994-95, it is 9.1% of these categories.[117]
5. REMAINING FORMULA COMPONENTS
Funding for student services is calculated as a base amount per university and is set according to the mission of each school with the three comprehensive universities receiving equal amounts and the remaining five universities receiving more than the three comprehensive universities also in equal amounts. The adjustment the Board makes according to the size of the university is a recognition that the smaller institutions have less ability to support their intercollegiate athletics program. An additional amount is added for each university based on head count and FTE enrollment. Institutional support is calculated as a percentage of instruction, research and public service. For 1994-95 it is 17% of these categories.[118]
The operation and maintenance category consists of utilities and plant maintenance funding. Utilities are funded at the previous year's actual expenditures on gas, water and electricity. The plant maintenance component is allocated to the universities based upon their square footage in use. Square footage is funded differently at the universities depending upon the intensity of use.[119] Scholarships and fellowships are funded as a percentage of the general tuition income recognized in the self-generated component. *1449 For FY 1994-95, this category constitutes 10.72% of the general tuition income.[120]
After the total need (system-wide) is established by adding the amounts calculated under each of the eight components, from that amount is subtracted an amount representing the students' contribution through tuition or the self-generated category. The self-generated component of the formula in any given year is determined by calculating the general tuition for each of the eight universities and multiplying that total by the universities' FTE productivity and calculating that dollar value. Once that calculation is made (total estimated expected need minus student fees), the figure remaining will be the Board's net request to the legislature.[121]
D. FORMULA IMPACT
The new formula differs materially from the previous one in several ways. First, whereas the old formula was cost based, that is, based on the actual expenditure per credit hour at each of the universities, the new formula, while not funding institutions according to their mission designations, funds the institutions by their size.[122] Second, under the old formula, the staffing ratios for doctoral courses were sharply differentiated from other post-baccalaureate hours. Pursuant to the new formula, the doctoral staffing ratio has been eliminated and all graduate work is now funded at the same level with no distinction made between masters, specialist or doctoral level courses. Third, whereas previously the amount of doctoral hours generated by the universities determined the amount of funding under the research category, currently research is funded by the number of doctorates produced by the university. Finally, under the new formula tuition has been standardized by institutional groupings, the three comprehensive universities having the largest tuition, JSU and DSU having the next largest, and the remaining universities having the lowest.[123]
The most significant similarity between the present formula and the previous formula is that they are both instruction based. Because the level of student enrollments and the number of students enrolled are the major determinants of how much a university stands to receive under the formula, at what level and in what discipline students are enrolled markedly affect a university's funding. Formula funding in Mississippi makes the standard assumption made elsewhere in the United States that lower division (freshman/sophomore) course work is the least expensive to teach. Likewise, the staffing ratios assume graduate level instruction is the most expensive to teach and, accordingly, "appropriately reward[] the universities for teaching at the graduate level."[124] Thus, because the size of the university's enrollment determines the level of funding, the larger institutions with the highest percentage of upper level programs obtain the greatest amount of funding. This causes practically the same result as under the previous formula that funded by institutional mission designation.
The court finds the testimony pertaining to funding interesting and problematic in that it concentrates on the levels of funding at the various universities as if it is the institutions themselves which have the right not to be discriminated against by funding rather than the students who attend those institutions whose rights are in issue. An argument for equal funding of the institutions, regardless of the level of programs at the various institutions, does not adequately take into consideration that the number of black students attending the HWIs of the state is 44% of the number of black students attending the HBIs of the state, and the number is rising annually.
*1450 The court also finds it noteworthy that when calculating the expenditures of state tax dollars on behalf of all students enrolled in higher education in the state both at community colleges and universities more dollars per student are expended for black students than white students. This factor is created by a higher percentage of white students than black students choosing to attend the lower cost community colleges for their first two years of college work.[125] Thus, in overall funding in college work, more state appropriations go per student to black students than white students because of the choices made as to where they enroll.
Since the formula was put into place in 1987, the three comprehensive institutions have consistently received approximately 70% of the State's appropriations for higher education. The actual effect of the implementation of the funding formula has been to "lock in" the institutions' positions vis-a-vis other institutions in the system to the point in time of their development that immediately preceded the implementation of the formula. Stated another way, when the formula was put into place in 1987, the institutions were funded according to how they existed at that time in terms of their existing missions, existing programs and so forth. The historical funding of each or any institution was not considered.[126]
The term "redundancy" refers to repetitiveness or duplication within the formula. The amount of redundancy within a formula is the measure to which certain components of the formula are rewarded more than once.[127] The degree of redundancy in the Mississippi formula together with its basic structural components works to the advantage of the Level I Comprehensive Universities in several ways. Because of the staffing ratios, the Level I institutions that have more graduate FTEs receive more resources under the formula. Likewise, because the Level I universities have the more expensive programs or "the programs that have the highest yields ... in terms of dollars," again, they receive more resources under the formula. Accordingly, the instructional salary budget is larger at the Level I institutions. Because the regional universities, including the HBIs, have the highest percentage of their students enrolled at the lower division, these institutions consistently receive less under the formula.[128]
An institution with a high ration of lower level students to upper level students, according to Dr. Lott, could increase its level of funding if the university retained those lower level students. For example, if JSU would increase its percentage of students remaining at JSU after their sophomore year from its present 38% to 45%, the formula would provide JSU with additional funding in excess of approximately $2 million per year.[129]
Another example of redundancy in the formula is the research component funding. Because research dollars are based upon the number of doctorates produced, again the Level I institutions with the largest number of doctorates produced receive more resources under the formula, another reward for being a level I university.[130]
Because funding for academic support as well as institutional support is calculated as a percentage of the previous three categories, again the Level I universities receive more resources simply by virtue of having larger amounts in the previous categories. The effects *1451 under the formula of being a Level I institution are thus compounded.[131] In the category of scholarships/fellowships, the Mississippi practice of gearing the allocation under the formula to a percentage of the amount of tuition charged is not unusual or peculiar to Mississippi. Such a calculation rests upon the standard assumption that the more tuition a university charges, the more it should receive in terms of student aid money. However, although the Level I institutions charge the highest tuition, in general, they have the largest proportion of their student body able to pay or having the least financial need than some of the other universities in the state, particularly the HBIs.[132] The current funding formula disregards all revenue sources flowing to the university that stem from private sources such as gifts and contracts.[133]
A nonresident fee provision has been recently added to the self-generated component of the formula. In simplest terms, this provision returns any nonresident tuition the university is able to generate to the self-generated expectation after the nonresident enrollment at the university exceeds 15% of its student body. UM and JSU traditionally have a larger percentage of nonresidents in their student bodies than any of the universities and, accordingly, have previously gained by their nonresident tuition charges. Under the new 15% rule, these universities stand to lose the most in terms of funding;[134] however, contrary to the plaintiffs' claims, the court finds no racial nexus to this rule.
E. OUTSIDE THE FORMULA FUNDING[135]
1. LINE ITEM FUNDING
Mississippi provides additional funds for education through line item funding. Line item funding is provided by the legislature for specific activities and programs offered at one or more of the eight public universities. This form of funding is a substantial share of the total state appropriation for IHLs and contributes significantly to the quality of an IHL. Line item or "outside the formula" funding disproportionately flows to the HWIs. Evidence indicates that no HBI received state funding through this source until 1993.[136]
2. ENDOWMENTS
The primary contributors to an IHL's endowment are its graduates. Endowment funds are important financial resources for universities and the availability of such funds affects the overall quality of an institution and the educational experiences of its students. The endowments of the HWIs in Mississippi total approximately $115 million. By comparison, the endowments of the HBIs total approximately $5 million. One significant feature of endowment dollars is the flexibility by which the institution may use the funds.[137]
F. EQUITY
As it concerns the pattern of funding from all sources for the HBIs during the de jure period, the following testimony by Dr. Anderson, the United States' historian provides the relevant background facts:
The first building program directed at a HBI was for ASU in 1925. In 1929, that building program was implemented when the State of Mississippi matched the General Education Board ("GEB")[138] appropriations for the university. The next significant building *1452 program for the HBIs took place in the early 1950s and was directed at all three HBIs.[139]
Growth in funding for the HBIs in the early 1950's was motivated at least in part by the Board's anticipation of the Brown decision. According to the plaintiffs' expert historian, the Board increased funding of the HBIs for the purpose of absorbing projected sharp increases in the number of college-bound black seniors in the state in an effort to preserve segregation. The major growth period in higher education in Mississippi occurred from 1945 until approximately 1970. As referred to previously, the "college boom years" delineates the era where the public institutions of higher learning in Mississippi developed into the structure that persists today in terms of the relative positions of the universities.[140]
Most of the monies spent by the State in higher education during this time period was invested in the HWIs. That investment included land, buildings or physical plant, permanent improvements and the allocation of FTE faculty positions and academic degree programs, particularly at the graduate and professional levels. At the start of Mississippi's college boom era, the University of Mississippi was the leading institution in the state. During this period, MSU and USM were transformed into major comprehensive research universities. By the end of the college boom era, USM and MSU had achieved approximate parity with UM.[141]
In terms of their shares of enrollment, FTE faculty positions and investments in land, buildings and equipment made by the State, the position of the HBIs is currently similar to that existing at the end of the de jure period. From 1960 until the present, greater funding has been provided to the HWIs as compared with the HBIs. During the same period of time, the HBIs have spent less per student than have the HWIs.[142]
By head count enrollment, in 1992, approximately 11,300 blacks attended a HBI in Mississippi as compared with approximately 5000 blacks who attended a HWI. On a per student basis, state appropriations for black students at four-year institutions continued to lag behind state appropriations for white students at four-year institutions, primarily because of the reasons previously described. By 1992, however, because more black students were enrolling in HWIs and more white students were similarly enrolling in HBIs, the percentage difference in state appropriations between the races declined;[143] however, as previously noted, when comparing state appropriations for both community colleges and universities, black students receive more on a per student basis than white students. The analysis of state expenditures on a per student basis according to race is a more valid measure of whether discrimination exists in state funding than is a comparison of funding between institutions, each of which has both black and white attendees, as long as there is an unfettered choice by the students of which university or community college to attend.
CONCLUSION: FUNDING
The plaintiffs do not contend that the funding formula currently used in Mississippi, either in its entirety or by individual component, is educationally unsound. They do contend, however, that funding under the formula continues the perpetuation of the historic missions of the HWIs. In fact, the financial impact of formula funding on the universities and the universities' missions are practically inseparable. And while the comprehensive universities no longer have a racial component to their mission assignments, the current size and scope of their missions are likewise closely tied to Mississippi's de jure past. Were all other things equal, no issue would exist on this subject inasmuch as it is educationally sound to fund institutions according to the missions they fulfill in the State's system of higher education. The funding formula does not operate on a "clean slate," however, and the historical disparity *1453 in funding between the HWIs and HBIs once practiced by law persists through perpetuation of the status quo as it existed then.
Current policies and practices governing funding of institutions are lawful. There is no per se funding policy or practice traceable to the de jure era. Attainment of funding "equity" between the HBIs and HWIs is impractical and educationally unsound. It can neither be attained within our lifetime nor, as Dr. Siskin and others pointed out, does it realistically promise to guarantee further desegregation given the present institutional landscape.[144] The testimony showed that the formula is largely geared to funding the students without consideration of race at whichever institution the students choose to attend and at the program level the students choose. Accordingly, the court finds that the funding formula should not be altered.
FACILITIES
A. CONTENTIONS
"Whether vestiges of the State operated racially dual system of public higher education remain in the State of Mississippi, particularly with respect to ... construction and maintenance of physical facilities."[145]
B. OVERVIEW
In its previous opinion, 674 F.Supp. at 1561, this court found no "racially discriminatory pattern existing with respect to the allocation and condition of facilities when measuring facility resources by the amount of net square feet per full-time equivalent student." That finding was based upon a comparison of the institution's share of enrollment with that of the institution's proportionate share of state appropriations for capital improvements. Acknowledging that "there is a need for repair of facilities at the historically black institutions," based on the evidence before it, this court found no difference in the degree of that need among all institutions. Id. at 1562. What follows are additional findings of fact with regard to the facilities issue.
C. BACKGROUND
1. FACILITIES/PROJECT FUNDING
One aspect of the State's decision-making authority regarding facilities is exercised through the allocation of money. Two sources of funding for facilities are legislative appropriations and self-generated funds. Self-generated funds provide resources for capital improvements as well as for repair and renovation and include federal grants and loans provided through the Educational Building Corporation[146], as well as private donations and gifts. Self-generated funds are a significant source of revenue of the institution for the improvement of facilities.[147]
The three general categories of facilities expenditures in Mississippi are capital improvement expenditures, repair and renovation expenditures, and operations and maintenance funding. Capital improvement expenditures add usable space to a campus; repair and renovation projects improve existing space; and operation and maintenance expenditures are routine expenditures necessary to keeping existing facilities operating and maintained properly. Operation and maintenance allocations are made as part of the regular formula funding process. An institution's operation and maintenance budget is based upon the amount of square feet each institution is responsible for maintaining. Each institution has control over its operation and maintenance monies and is expected to maintain its campus with those monies. Campus landscaping and grounds maintenance monies are derived from the university's operation and maintenance budget. In the field of facilities maintenance, capital improvement and repair and renovation, *1454 Mississippi has a decentralized system with a high degree of institutional autonomy.[148]
Typically, a capital improvement or repair and renovation project undergoes three phases: (1) the funding phase; (2) the design phase; and (3) the construction phase. The funding phase involves the search for money. Funding for such projects is generally provided by either the institutions' self-generated funds or through legislative appropriation. At the lowest level in the process, the institution identifies a need by way of an annual assessment whether the need is in the nature of new construction or the renovation of existing construction. The institution outlines a brief description of the project, together with a preliminary estimate of its cost, and submits the proposal to the board office. The Board processes many such proposals in a year.[149] Institutions prioritize their requests and the Board in turn considers and further prioritizes the items requested for presentation to the legislature as a system-wide proposal. When the legislature approves a construction or repair/renovation project, the item is funded by line item appropriation with a specific amount restricted to each project.[150]
After the funding phase is complete, the design phase of the construction project follows. The institution selects the design team of architects and engineers responsible for the project's completion. If the project is funded from self-generated funds, the final decision for awarding the design contract is made by the university. The institution's administration, after consulting with the design professional selected, chooses the location of the proposed building. The design phase is at an end when a complete set of plans and specifications have been developed, submitted by the institution to the Board, approved by the Board and advertised for bids. The final phase is the actual construction of the facility after awarding the contract. At this time the contractor moves to the site and construction begins. After the project is completed to the satisfaction of the institution it is formally accepted and turned over to the institution for use.[151]
2. PREVIOUS FINDINGS CAPITAL IMPROVEMENTS FUNDING
From 1964-65 through 1984-85, FTE enrollment in the system "nearly doubled." This growth in enrollment "was accompanied by a substantial increase in campus space and plant improvement." Ayers, 674 F.Supp. at 1548. When viewed in the context of enrollment figures at the IHLs, the state disproportionately provided funding to the HWIs "in the early years" of this period. Id. When viewed by percentage of enrollment, however, the HBIs "having only approximately 25% of the total system-wide enrollment ... received 39% of the state appropriations from 1970 through 1980 for new construction, and from 1981 through 1986 received 51% of such funds." Id. at 1549.[152]
3. PREVIOUS FINDINGS REPAIR AND RENOVATION FUNDING
"During the period 1981 through 1986, the state building commission allocated over 30% of all major repair and renovation appropriations to the predominantly black institutions." Ayers, 674 F.Supp. at 1549.[153]
4. ALLOCATION OF FACILITIES RESOURCES TODAY
From 1981 until 1994, HBIs averaged 22% of the enrollment in higher education system-wide but obtained 32% of the total funding available for capital improvements. Since *1455 1981, the State has allocated to the HBIs approximately one-and-a-half times the system average of the capital improvements monies on either a per student or a per square foot basis.[154]
For the period 1981 through 1993, the HBIs as a group in Mississippi have received a proportionately higher share of state appropriations for capital improvements and for repairs and renovation than the HWIs when the proportion of state appropriations is measured in terms of the institutions' enrollment and Education and General (E & G) square footage.[155] According to one of the plaintiffs' witnesses, at least up until 1987, physical facilities resources have been "allocated equitably from the viewpoint of racial characteristics of the institutions."[156]
Estimated at $100 per GSF (gross square feet), MSU, UM and USM, each have a higher replacement value (1992) than any of the regional universities. JSU has a greater replacement value currently than either MUW or DSU. While MUW has a higher replacement cost than either MVSU or ASU, both of the latter HBIs have a higher replacement cost than DSU.[157]
The IHLs in Mississippi vary in their dependence on state appropriations for facilities construction. The HBIs since 1985 have relied to a large degree on state appropriations to fund construction projects undertaken at these campuses as opposed to self-generated funds. Viewed in the context of institutional size, the three comprehensive universities have less dependence on state appropriations for construction projects followed next by JSU. In order of degree of dependence, MVSU depends exclusively on the state for such funding followed by MUW (91%); ASU and DSU follow next, respectively.[158]
Considering the age of the institutions, there is no difference in the overall construction quality of the facilities at the HBIs as compared with the HWIs.[159] There is a difference of opinion as to whether the quality of the workmanship employed in the construction of the facilities at the HBIs is inferior to that employed at the HWIs. According to the defendants' witnesses, there is no difference in workmanship.[160] According to the plaintiffs' witnesses, poor workmanship at certain HBIs has been evident since their founding.[161]
While the facilities at all universities suffer from problems associated with deferred maintenance, the levels of maintenance evident at the HBIs are below those exhibited at the HWIs. In general, there is a higher degree of deferred maintenance at the HBIs. Over time, continued deferred maintenance affects the university's core facilities. The institutions are not required to spend the funds in the categories for which they are earmarked; they may, in fact, set aside dollars earmarked for operation and maintenance for other uses according to the priorities set by the institution.[162] There is evidence to suggest that this is done by the HBIs to a larger extent than the HWIs. One way to remedy the misuse of repair and renovation monies would be placing control of the monies with the Board, which is opposed by the universities, both the HBIs and HWIs.
*1456 D. QUALITY[163]
1. PREVIOUS FINDINGS ON "INSTITUTIONAL CHARACTER"
"The physical plant of the higher educational institution is a basic tool to facilitate its educational programs. There is a close relationship between facilities and the development or expansion of academic programs." Ayers, 674 F.Supp. at 1549. "The particular mix of facilities found at a given institution defines its `character.' Objectively, one might include such factors as the age and construction type and design of campus buildings, their condition, ease of access, extent of land holdings, ability to expand, and visual images in defining institutional character. The subjective factors include the opinions of the academic community and the media and the opinions of parents, alumni and students." Id. "The character of the historically black institutions in 1954 was acknowledged to be inferior or unequal to that of the historically white institutions at that time. The facilities at the historically black institutions in 1954 were deemed to be adequate for undergraduate education." Ayers, 674 F.Supp. at 1549-50.
2. ADDITIONAL FINDINGS ON "INSTITUTIONAL CHARACTER"
"Quality" of facilities in higher education relates to the physical condition of an institution, the appropriateness for the programs for which the facility was designed, and certain intangibles related to the appearance of the facilities overall such as the ambiance of a campus and its distinctive "sense of place." In a broader sense, the quality or physical character of the facilities found at an institution is closely tied to both the physical condition as well as the functional appropriateness of the facility. The functional appropriateness of space or of a facility is linked to its design, its equipment, its appearance and the materials used to construct its component parts.[164]
The 1981 Dober Study (cited by this court in its 1987 opinion) addressed the utilization of space within the public four-year system, but did not draw any conclusions about the overall quality (as described above) of the institutions studied.[165] The Dober Study however did address the condition of buildings throughout the system and analyzed the relative degree of repair and renovation requirements for each institution in the system. When viewed in the context of the conditions of buildings system-wide, the study concluded that ASU needed the most attention followed by MUW and UM. DSU needed the least attention in terms of conditions of its facilities. MSU, JSU, USM, and MVSU were in approximate parity in relation to the overall condition of the buildings then present on their campuses.[166]
E. LIBRARIES[167]
During the de jure period, the failure of the HBIs to gain accreditation of their programs was in part attributable to the inadequacy of their library holdings. The library of a university "is symbolic of the scholarly purpose of the institution, of its embodiment of academic enterprise."[168] Despite changes in technology, the library remains part of an institution's image and one of its strongest characteristics and, thus, plays a part in the recruitment of students and faculty. Measured in terms of the number of holdings, the library collections at the HWIs have been consistently superior to the library collections at the HBIs for the past 40 years. Although the libraries at all of the eight public institutions are in need of renovation and addition, the libraries at ASU, MVSU and JSU are of a lesser quality overall in *1457 terms of the condition of their space.[169]
The state legislature has recently approved a $12 million library expansion now underway at JSU. An addition to the library at ASU is currently underway with $3 million having already been spent in connection with the addition.[170]
F. EQUIPMENT[171]
During the de jure era, investment in equipment at the HWIs exceeded that provided the HBIs. The quality and type of equipment available on a campus is important from the student's standpoint in terms of adequately preparing the student to enter the job market. Likewise, it is important from an institutional perspective as an aid in recruitment. In terms of fixed equipment (e.g., science lab furnishings) the quality of the equipment at the HBIs is inferior to that at the HWIs. The technical and scientific equipment present at the HWIs is more advanced and generally in better condition than that of the HBIs. JSU is a large user of the super computer. According to Dean Michael Dingerson at UM, JSU is the third largest user in the system of the computer each month.[172]
G. LAND[173]
JSU now possesses approximately 120 acres of land. The sum of $5 million has been made available to JSU for additional land acquisition, and properties surrounding the campus of JSU continue to be purchased. The projected land acquisitions proposed by the Board for JSU have the potential of enhancing the appearance of the campus enormously and will help solve the existing problems connected to the lack of adequate land for its existing mission.[174]
H. FOOTBALL STADIUM[175]
JSU currently does not have a football stadium. Dr. Kaiser testified that the possession of a football stadium under the control of a university affects the reputation of the university in the community.[176]
I. FACILITIES AND STUDENT CHOICE
The general appearance of the grounds of a campus is part of its appeal and, thus, maintenance of the grounds is the institution's most visible attribute. Institutions build new facilities for various reasons including (1) response to enrollment pressures, (2) to provide specialized facilities for new or expected programs, and (3) to replace buildings in danger of collapse or for other safety considerations.[177] The nature and condition of facilities of a campus are factors that influence student choice in deciding where to attend college.[178] While either may bear on the perceived reputation of an institution, neither the replacement value of its buildings nor the number of books in the library is a significant feature of a university that influences student choice of where to attend.[179]
CONCLUSION: FACILITIES
There is no pattern of inequity in funding in recent years for the HBIs as a group. The court finds that the nature and kind of problems faced by the HBIs in terms of maintenance and repair do not differ significantly from those faced by the HWIs. Drainage problems are pervasive throughout the system and present at both the HWIs and HBIs, especially those in the Delta. *1458 Likewise, both groups of institutions currently experience the same type of structural problems, typically the result of settling foundations.[180] There are, however, observable differences in the upkeep of some of the institutions within the system as well as the quantity and quality of the landscaping present throughout the campuses, thereby creating a "sense of place" at some HBIs which is arguably inferior to that found at some of the better manicured and maintained HWIs.
Undeniably, the appearance of the university campus plays some role in student choice. In this context, the issue presented is whether the neglect of the HBIs' facilities, particularly their respective physical plants, continues in some form today and, if so, the nature and direction that corrective action should take. While no current facility policy or practice has been identified as having a de jure connection, it is clear that the State's lack of control of each university's operation and maintenance expenditures, in combination with traceable aspects of the university system, such as the historical neglect of the physical facilities at the HBIs, serves to decrease the attractiveness of these institutions and, thus, to some extent their ability to desegregate. The defendants have raised a substantial doubt in the court's mind as to the practicality or desegregation productivity of institutional enhancement to the degree requested by the plaintiff parties,[181] and the court will not speculate as to whether or to what degree such measures, referred to at least once as the "Field of Dreams" theory, reasonably promise to attract other-race students to the IHLs. One measure that appears likely to have an immediate impact on the appearance of these institutions, however, is vesting control of the IHLs' autonomy over their operation and maintenance funding to the Board.[182] Having been presented with no evidence as to the educational soundness of such a measure, the court has no opinion as to this possible change of policy.
The court finds little usefulness in comparing, on the basis of race, library facilities and holdings of universities with broadly disparate missions. The differences in the universities' volume holdings are attributable to their historical mission assignments. In the absence of proof that the HBIs' library holdings impact student choice to the extent of precluding those institutions as viable choices for white students, the court finds that increasing the size of the HBIs' libraries beyond that consistent with their missions is not educationally sound. As noted earlier, ASU's and JSU's libraries are undergoing expansion.[183]
Self-generated funds (SGF) are a significant source of money to a university and account for more than half of project financing system-wide.[184] The fact that UM, USM and MSU can draw more research dollars today because of their size and accordingly have the enhanced ability to fund more self-generated projects than the regional universities is a product of past funding practices. To a degree, such funding practices explain the relative disparity in size and degree of research activity at the comprehensive HWIs as compared with JSU.
The defendants argue that institutional enhancement of the HBIs, to the degree urged, will escalate the level of segregation in the system. The court need not embrace the defendants' argument in order to reject the notion that enhancement toward attaining parity of scope at the HBIs relative to the HWIs is necessary to end segregation in Mississippi. Rather, the issue to decide in this area is whether present remnants affecting the HBIs, in light of other systemic infirmities noted throughout this opinion, are educationally unsound and there exists a practical alternative. Viewed within this context, the enhanced ability of the HWIs to self-generate funds vis-a-vis the abilities of the HBIs to do so in and of itself is of little significance.
*1459 EMPLOYMENT
A. CONTENTIONS
On the issue of "[w]hether defendants' employment and employment-related policies and practices perpetuate segregation by resulting in racially identifiable faculty and administrators at Mississippi public institutions, and in race-based differences in faculty rank, tenure, and salary,"[185] the court has heard extensive testimony both in 1987 and in 1994.
B. OVERVIEW
In 1987 this court found that the State of Mississippi's race-neutral hiring practices satisfied its obligations under the law to dismantle its former de jure segregated system; however, today's inquiry focuses upon the identification of remnants within the hiring process that continue to foster segregation or the racial identifiability of the institutions of higher learning in Mississippi.
C. RACIAL IDENTIFIABILITY[186]
During the de jure period, no blacks served as faculty, administrators or managers at the HWIs. In 1992-93, 3.27% of the total faculty present at all ranks in the HWIs was black.[187] That figure compares favorably with national averages of black fulltime regular faculty at public comprehensive and doctoral institutions.[188]
D. FACULTY SALARIES[189]
During the de jure period, the faculty salary levels at the HBIs were consistently lower than that which prevailed at the HWIs for faculty at the same ranks. Since approximately 1979, salary levels at all Mississippi universities are consistently lower relative to those found in the surrounding states of the southeastern region. MSU, UM and USM have on average the highest faculty salaries of all universities in the system. Tuition is also the highest at these universities.[190]
When grouped solely on the basis of their predominant racial characteristics, rather than by institutional size and scope, the differences between the salary levels prevailing at the HBIs and the HWIs continue to be significant.[191] Likewise, the percentage of faculty holding positions of instructor and assistant professor, the two lowest compensated ranks in academia, is greater at the HBIs in general.[192]
The court deems it noteworthy that although funding for faculty salaries is provided by the State under the formula, the institutions themselves determine the number of faculty positions needed and their corresponding rank within the university, as well as the compensation for that rank. Thus, because of the institutional autonomy present in the system, an institution may have a higher state appropriation per FTE student compared with its regional peers, yet maintain lower faculty salary levels. With respect to the formula funding of faculty salaries per institution type, Doctoral I through Masters II, the formula keys off average faculty salaries by discipline and rank found at peer institutions in the region (Southeast Region IV). The overall average faculty salaries assigned by discipline to each type of institution assume a rank distribution as that currently prevailing in the region.[193] As a *1460 result of this assumption, those institutions that choose to vary from the rank distribution assumed in the average faculty salary rates, are in a sense, either over-compensated in their salary formula funding, or undercompensated.[194]
E. RANK AND TENURE[195]
The racial makeup of a university faculty and of the various levels of the faculty affects student choice. For the period 1986-1992, the percentage of white full and associate professors at the five HWIs remained high, whereas the percentage of blacks holding these ranks continued to be stable and low.[196] For the system as a whole, 94% of the full professors at the HWIs were white as opposed to 2% black. For fiscal year 1992, 98% of the administrators at the HWIs were white; 2% were black. In 1991-92, 22% of the faculty at the HBIs were full professors as compared with 36% of the faculty at the HWI's holding this rank. Twenty-three percent of the faculty at the HBIs was at the instructor rank as opposed to 11% at the HWIs.[197]
Board policy currently prevents offers of tenure at the time of hiring even to recruits from other universities holding tenure there. Desegregation of a university is advanced when blacks hold visible and influential positions within the university. Symbolically, it sends a signal to other blacks in the community that the university is committed to sharing power. Practically, it provides the university a better chance to recruit other black faculty by virtue of the contacts existing black faculty may have in the qualified pool.[198]
F. RECRUITMENT
1. PREVIOUS FINDINGS RECRUITMENT AND HIRING
In 1987, this court found that "[t]he statistical presence of other-race faculty at the historically black institutions is substantial and unchallenged." Ayers, 674 F.Supp. at 1537. It remains so today. "The defendant universities recruit and hire faculty on a nationwide basis. [Exhibit citations omitted.] The historically white institutions expend substantial affirmative efforts in an attempt to attract and employ other-race faculty...." Id. "Recruitment of minority faculty is severely hampered by the acute shortage of supply of minority individuals having the requisite qualifications." Id. "[T]he push to employ more minority faculty is a nationwide issue. Institutions throughout the country are competing for the same limited supply and finding it extremely difficult to increase the percentage of other-race faculty. Mississippi universities are at a distinct competitive disadvantage in attempting to attract, employ, and retain qualified black faculty members." Id. at 1538. Finally, "[s]ince 1974, the percentage of blacks hired by Mississippi universities exceeded the black representation in the qualified labor pool." Id.
2. ADDITIONAL FINDINGS RECRUITMENT AND HIRING
Some Mississippi institutions, whether because of perceptions, availability of Ph.Ds or other reasons, continue to have a more difficult time in recruiting minorities than many other institutions in the United States. Lack of competitive salaries also continues to be a *1461 factor making it more difficult to recruit qualified black faculty.[199]
In 1987 the percentage of black faculty in the HWIs in Mississippi was approximately 2.9%. That figure is now up to 4.1%, a significant increase that compares favorably with the percentage of black faculty nationwide. In 1986, black faculty made up approximately 12% of the total faculty in the system. By 1992, black faculty had increased to 17% of the total faculty. In both 1986 as well as 1992, over 80% of the black faculty in the public system was employed at the HBIs. For the period 1987-1993 there has been little improvement in the representation of black faculty at the HWIs at the ranks of associate and full (tenured) professor. For the same time period, white faculty at the HBIs continued to be well represented at the associate and full professorial ranks.[200]
Analysis of black faculty now present at Mississippi's HWIs by discipline and degree attainment indicates that since 1974, Mississippi HWIs have hired more black faculty than would be statistically predicted. Statistical analysis of all faculty now present at Mississippi's HWIs indicates that, when viewed as a group, existing faculty hired prior to 1974 are excessively white; those hired after 1974 are excessively black. The racial composition of the faculties present at all HWIs is within statistical expectations.[201]
3. QUALIFIED POOL
For the time period 1979 through 1989, the HWIs have awarded 97% of all the doctorates awarded to African-Americans in Mississippi; the historically black universities have awarded 3% of the African-American doctorates. For the same time period, of the total doctorates earned by African-Americans in Mississippi, 68% were in education; 12% in social sciences; 4% in physical sciences; 10% in life sciences; .6% in engineering; 3% in the humanities; and 2% in professional fields. The percentage of African-Americans earning doctorates in education in Mississippi is extremely high in relation to the doctorates earned in other disciplines. Because doctorates in education primarily lead to careers in elementary and secondary education, the pool of black doctorates available for faculty positions at Mississippi institutions is limited.[202]
The shortage of African-Americans earning doctorates is a problem that persists throughout the United States. For instance, in 1991 blacks earning doctorates nationwide accounted for only 3.8% of all doctorates awarded to U.S. citizens. Similarly, less than 5% of all master's degrees awarded nationwide were awarded to blacks in 1990. In 1992, the number of Ph.Ds awarded in the United States to black United States citizens in the core subject of mathematics, including all sub-categories, was four. There were eleven awarded in 1991 and four in 1990.[203] Moreover, predominantly black institutions are an important source of competition with HWIs for African-American Ph.Ds.[204] Likewise, business, industry and government compete with universities for African-American Ph.Ds. Only approximately 40% of all black doctorates earned in a year move into academia.[205]
*1462 The degree of black faculty representation in academia also varies by type of institution. In public doctorate-granting institutions, African-Americans average approximately 1.8% of the total faculty, whereas in public universities of lesser scope, black faculty make up approximately 3.5% of the total faculty present. For approximately the last twenty years, the percentage of black faculty has remained relatively constant (at 4.2% to 4.5%) vis-a-vis the total number of faculty throughout the country.[206]
4. DEFENDANTS' EFFORTS IN MINORITY EMPLOYMENT
The basic techniques of Mississippi IHLs for hiring faculty are typical to those employed at universities across the nation. The process begins at the departmental level with the identification of need. The institution's administration reviews departmental requests and either approves or disapproves the request for an additional position.[207] In an effort to attract and retain qualified black faculty, the HWIs in Mississippi continue to develop various means to accomplish this purpose.[208] Some of the more notable programs designed toward increasing faculty diversity are detailed below.
DSU has a "grow your own" program, whereby the university sends its minority graduates to other institutions for completion of their terminal degree. The institution requires two years of teaching at the university for every one year of graduate financial support. DSU also provides financial support to junior black faculty working on advanced degrees.[209] MSU's efforts include the allocation of additional funding for minority faculty and participation in the Minority Alliance Program. MSU also provides for financial incentives to departments to encourage minority recruitment[210] and requires its departments annually to report their efforts to hire minority faculty. MSU participates in cooperative faculty exchange agreements with ASU and JSU.[211] MUW pays higher salaries for black faculty on average than its white faculty of comparable rank.[212] UM uses minority recruitment funds to encourage diversity at the departmental level by enhancement of salaries paid to black faculty. Black faculty employed at UM on average receive $3,000 per year more in pay than white faculty. Like DSU, UM also has a "grow your own" policy and provides financial and other support to minority instructors working toward their doctorates. UM also participates in faculty exchange programs. The university attempts to recruit at HBIs and gives minority faculty priority in campus housing. Like DSU and UM, USM also provides financial support to minority graduates seeking terminal degrees at other institutions with the requirement that they teach at least one full year at the university.[213]
CONCLUSION: EMPLOYMENT
The HWIs remain racially identifiable at the administrative and tenured faculty ranks. The point of inquiry however must focus upon whether this continuing state of affairs (a) is the result of policies and practices having as their historical antecedents, practices of the de jure era and (b) whether racial identifiability at the faculty/administrative rank continues to foster segregation of the races.
It is an undeniable fact that Mississippi, together with all prior de jure segregated states, has to some degree affected the qualified pool of black applicants for faculty positions. It is likewise true that de jure segregation has materially contributed to the shortage of minority faculty and administrators *1463 at the HWIs. Both plaintiffs' and defendants' experts agree that diversity in the faculty ranks of an institution increases diversity in all other facets of the university.
As the Supreme Court in Fordice observed, "[u]nquestionably, a larger rather than a smaller number of institutions from which to choose in itself makes for different choices...."[214] There is no current policy or practice in a relevant sense that produces the shortage of available black faculty, nor can liability be based on prior exclusionary admissions policies and practices that reduced the qualified pool, in light of the State's continuous substantial affirmative efforts to correct this imbalance. Absent a finding of discriminatory purpose in current means and methods of institutional hiring, the court cannot, consistent with Fordice, address this imbalance through intervention in the hiring/promotion processes employed by the universities.
Although the racial predominance of faculty and administrators at the HWIs and the shortage of qualified black faculty are to some extent attributable to de jure segregation, the HWIs are making sincere and serious efforts to increase the percentages of African-American faculty and administrators at these institutions. Universities throughout the nation have the same problem in this regard. As Dr. Bernard Siskin pointed out, the policies and practices of the defendants have resulted in the hiring of more African-American faculty than one would expect from a statistical analysis of the pool available and the national hiring drive.
LAND GRANT[215]
A. CONTENTIONS
"Whether Alcorn State University has been limited in its role in the State of Mississippi's land grant program, due to its racial heritage and the racial identity of its enrollment and administration ... in a manner that decreases its attractiveness to other-race students."[216]
B. OVERVIEW
The court has previously traced the historical land grant funding disparity between ASU and MSU and has likewise noted the programmatic differences between the land grant universities in the areas of instruction, research and cooperative extension. See Ayers, 674 F.Supp. at 1543-1546. In 1987, the court found that the plaintiffs had failed to "make a showing that educational opportunity in the land grant area is in any way restricted." Ayers, 674 F.Supp. at 1563. Moreover, the court found that "the differentiations made by the defendants with respect to the nature of the land grant programs offered at the two land grant schools are educationally sound and are not motivated by discriminatory motive." Id. The Fordice analysis requires close reexamination of the land grant issue to determine the educational soundness of the continued practice of conducting the majority of land grant activities at MSU. Although the traceability of the practice to the prior de jure era cannot reasonably be disputed, the court must determine whether its continuation has segregative effects and, secondly, whether its elimination would be impractical in terms of educational soundness.
C. BACKGROUND
The original legislation creating land grant institutions was passed on July 2, 1862. These institutions, later to be known as land grant colleges, were set up to teach agriculture and mechanical arts. On May 13, 1871, the state legislature authorized the governor to receive the land scrip granted to the State by virtue of the 1862 Morrill Act. On that occasion, three-fifths of the land scrip was given to ASU; two-fifths to UM. Thus, Alcorn was designated a land grant college in 1871; Mississippi State University (then Mississippi *1464 A & M) was not so designated until its establishment in 1878.[217]
In 1887, Congress passed an act designed to fund agricultural research in the several states. The 1887 act or "Hatch Act" provided for equal distribution of federal funds between the land grant colleges then extant "unless the legislature of such State shall otherwise direct." The Mississippi legislature did in fact direct otherwise. MSU, rather than Alcorn was designated to administer the Hatch Act funds.[218]
In 1890, Congress passed an act authorizing the states to establish land grant colleges for its black citizens. The beneficiaries of these funds were distinguished from the white land grant colleges by the designation "1890 institutions." Although established approximately nineteen years earlier, ASU was considered thenceforth as the State's 1890 institution.[219]
In 1913, an act was passed designed to aid agricultural extension work for farmers. The 1913 legislation or Smith-Lever Cooperative Extension Act authorized the states to designate the college or colleges to administer the money stemming from this source of federal funding. The State of Mississippi so directed that MSU would administer the Smith-Lever funds to the exclusion of all other institutions. Together these four Acts defined the "Land Grant" college. The pattern of channeling the federal dollars made available through the Hatch and Smith-Lever Acts away from the 1890 institutions or black land grant colleges and to the land grant institutions designated for whites was consistent throughout the South. The failure to invest in ASU during the de jure period made it impossible for it to develop into a full-fledged land grant institution. Thus, while holding the land grant designation, ASU was not developed as such an institution.[220] In 1954, the Brewton Report recommended considering "the abandonment of the present land-grant program operated at Alcorn, in view of the limited number of students enrolled."[221]
Elements traditionally considered as part of the land grant function include: a directed research program; an experiment station; an extension service and resident instruction programs. "Core" agricultural programs are programs found in most if not all agricultural colleges. Core agricultural programs include animal science, plant science, soil science, and agri-business. The court finds it significant that, among black undergraduates nationally, there is currently little demand for core agricultural programs. Nationwide, only 4% of persons pursuing academic programs in agriculture at all land grant institutions are black. Programs and projects undertaken in the field of agriculture are driven by the needs of the state's agricultural industry and the number of persons engaged and interested in agriculture in the state. From before 1987 until approximately 1990, both Mississippi as well as the country at large experienced a decline in interest in agricultural education and thus, declining enrollment in agricultural instruction. From 1990 until the present, both nationally and in Mississippi, enrollment has again picked up in the field.[222]
1. RESIDENT INSTRUCTION
Agricultural research conducted on the campus directly affects the quality of the resident instruction. Scientists employed in research and interacting with students improve the quality of the students' education and strengthens undergraduate programs in general. In 1960, MSU received $328,000 in state appropriations for resident instruction. Alcorn on the other hand received only $64,000. *1465 Alcorn did not approach MSU's 1960 state appropriation for resident instruction until 1980.[223]
2. RESEARCH
When the State of Mississippi accepted the Hatch Act funds in 1888 there were two land grant colleges in existence. Mississippi A & M, the predecessor of MSU, was designated to receive those funds in that year. The Mississippi Agricultural and Forestry Experiment Station or "MAFES" is the legal entity designated by the state legislature as the recipient of the federal research money available through the Hatch Act. MAFES conducts the state's forestry and agricultural research, and is an "integral part," or a "corporate part" of MSU.[224]
Alcorn was exempted from having an experiment station in 1878. That exemption was based on race. In 1955, the Mississippi Forestry Experiment Station at MSU received state appropriations of $611,000. By 1965, this appropriation had grown to $1.3 million. By comparison, ASU first received state funds for research in 1973. By 1981, ASU was receiving state research funds of $178,000, substantially less than MSU's 1955 state appropriation. This pattern persists. In 1993, MSU received $17 million in state-appropriated funds earmarked for research functions. For the same year, ASU received $254,000 in state funds for this purpose.[225]
The beneficiaries of agricultural research include the consumers of improved agricultural products, farmers employing improved agricultural processes made possible through agricultural research, agricultural students in the state through access to research installations, experiment stations' lands and facilities and exposure to the research funds made available to support graduate students. Since 1967, ASU has received federal money for agricultural research matched by the State since 1993. Within the past thirty years, agricultural research has become more sophisticated, more complex and more costly. Today, in many agricultural disciplines, a mass of scientists is usually required to make progress in agricultural research.[226]
With little or no exception, federal Hatch Act dollars are administered in every state by a single institution. In this time of fewer and fewer persons entering the field of agriculture, but the system nevertheless effectively feeding more and more people, it would be inefficient and, thus, educationally unsound to administer two separate agricultural research programs in the state. To diffuse the program would create two separate administrative entities, difficulties in communication among the participating scientists, and inefficient duplication.[227]
3. EXTENSION
When MSU was designated to receive the Smith-Lever extension dollars in 1916, ASU was exempted from receiving those funds on the basis of race. The legal entity established to administer the land grant cooperative extension function under MSU is the Mississippi Cooperative Extension Service, or "MCES." In 1955, ASU received no state funding for extension work. By comparison, MSU was receiving approximately $75,000, a figure that had grown to $10.5 million by 1981. ASU first received state-appropriated extension funds in 1981 in the amount of $108,000. For fiscal year 1993, MSU received $14 million in state appropriations earmarked for extension. By comparison, ASU received $118,000 in state extension monies. The MCES contacts as reported to the USDA indicate that the MCES serves Mississippi's black population in statistical parity with its representation in the state.[228]
The general rule of practice is that Smith-Lever funds are administered by only one university in each state. The evidence shows it would be inefficient and, thus, unsound for the State to administer Smith-Lever dollars *1466 through two independent cooperative extension programs. To duplicate administrative processes and procedures as it relates to the delivery of extension programming is unsound because the short duration of extension educational programs makes program coordination difficult from year to year. As an educationally sound alternative to the present system of agricultural research and extension in Mississippi, effective and efficient use of federal funds would be furthered by the establishment of a single state administrative structure for research and extension.[229]
CONCLUSION: LAND GRANT
The size and breadth of MSU's land grant activities as compared with those of ASU are traceable to the de jure past and to decisions of the State to allocate state resources on the basis of race.[230] Moreover, there appears to be a connection between the quality of education in agricultural sciences offered by MSU because of its broad research mission when compared with that offered at ASU with its limited research mission.
The court agrees with the plaintiffs that the natural development of ASU has clearly been retarded because of the past discrimination practiced by the defendants. However, the court finds that within the context of two land grant institutions, there is no current state policy or practice which prevents or discourages black students from enrolling in the agricultural offerings of MSU or white students from enrolling in those programs at ASU. The court further finds that, even though the number of black students choosing to pursue a career in agriculture is very small, the academic and research facilities at both MSU and ASU are available to them, as well as to persons of both races engaged in agricultural occupations. To attempt to break up those facilities and allocate them equally between educational institutions for that reason alone argues for institutional rights and loses sight of the rights protected and enforceable under the Equal Protection Clause. The current allocation of agricultural education programs is educationally sound and there exists no practical alternative to the current method of providing research and extension services.[231]
CLIMATE[232]
A. CONTENTIONS
Somewhat like an aggregation of individual complaints of racial discrimination, perhaps the best articulation of this claim is found in the United States' list of "Practicable Alternatives to Remnants that State Contends Are Justified" as "[t]he failure of the several universities to have comprehensive programs to address problems of other-race faculty and students [which] appears to reinforce the lack of substantial other-race presence at all of the universities."
B. OVERVIEW
The court has heard extensive testimony in the nature of both expert and lay opinion relating to the issue of whether or not certain, any, or all Mississippi HWIs have what has come to be known in this area of the law as a racially hostile campus climate. In 1987, this court found that "the evidence ... shows that other-race students who choose to attend any of the eight Mississippi institutions enjoy desegregated campus environments." Ayers, 674 F.Supp. at 1558. The plaintiffs have called upon the court to reexamine the evidence that supported that previous finding in light of the Fordice analysis, and to consider the additional evidence developed since this case was tried in 1987. The findings on this issue are set out below and include findings relating to minority recruitment and retention programs at the HWIs.
C. RACIAL CLIMATE IN GENERAL
A racial climate at Mississippi HWIs that is hostile to black students is alleged to exist today. However, even the plaintiffs' witnesses testified that this racial polarization, *1467 apparently at the will of both white and black students, can be said to exist at almost any campus selected at random across the United States. The courts have found the phenomenon of voluntary racially polarized voting to exist throughout America today and have drawn up congressional and other political voting districts in response to it. The phenomenon of varying degrees of racial polarization is also found to exist on most college campuses. The court heard extensive testimony about this situation and the remedial efforts of the HWI administrations. The racial climate of a campus consists of the prevalent racial attitudes on the campus and the extent to which diversity is represented at various levels of university life. To the extent that an institution has a racially hostile climate, a barrier to student access is present.[233]
Both faculty and student peers set the tone of the campus climate prevailing at a university. A more racially diverse faculty will be associated with a more positive racial climate. Black student choice continues to be affected by the public perception of the black community toward the HWIs. That perception that attendance at certain institutions is not a logical choice is caused and/or shaped by the relative underrepresentation of minorities at the HWIs in terms of students as well as faculty, higher admission standards at the HWIs, and the perceived racial climate of the university.[234] Some of the programs and practices of the HWIs directed toward increasing diversity of their respective student bodies, both at the graduate and undergraduate level, include the following.
1. THE UNIVERSITY OF MISSISSIPPI
For the 1991-92 school year, black students made up approximately 8% of the total enrollment at UM.[235] In 1983, UM formally disassociated itself from the use of the Confederate flag as a pep symbol at athletic events. Although the band still plays "Dixie" at university functions, public opposition to the practice has caused the university to reduce its playing of this composition, associated by some with racism but by others with merely a pep song. As an accommodation to those who oppose the song, the university now combines "Dixie" with "The Battle Hymn of the Republic" at athletic events and other public functions.[236] In 1988, the first black fraternity house burned on the eve of its opening. While the cause of the fire remains unknown, donations from white fraternities and others replaced the house.[237]
In 1989, the Chancellor of UM set up a task force to determine the extent of minority participation in campus life. The task force eventually made approximately 51 recommendations to the chancellor regarding improvement of the racial climate on campus. Dissatisfied with the university's responses, in 1993 the Black Faculty and Staff Organization ("BFSO") made a report to the chancellor, recommending among other things (1) implementation of the 1989 report recommendations; (2) the development of a racial harassment policy; and (3) the establishment of race relations/multi-cultural training workshops and seminars with mandatory attendance required for all top-level administrators, deans, department heads and supervisors. After contending that the university had a "hostile, intimidating environment," the report concluded with the suggestion that if the recommendations therein were not acted upon, the BFSO would be forced to "take [their] grievances to a national, public forum" or "file a class action suit on behalf of the African-Americans and other minorities on this campus."[238] In the event the university did not act upon its recommendations, the BFSO also proposed to "encourage African-American students not to enroll at the University." Thus, out of concern about what they allege is a lack of nurturing at UM, some black faculty have taken the ironic *1468 stance of discouraging potential black students from attending the university.[239]
As noted earlier, in an effort to increase diversity, UM gives priority to black faculty for university housing. The university also has a freshman/sophomore mentoring program designed as an aid in easing racial tensions on campus and as a way of creating a sense of belonging among black students. A minority graduate outreach program has also been established for the purpose of increasing the number of minority graduate students. The program offers full tuition for qualified African-Americans as well as a stipend. In 1991 and again in 1992, the program has won the "National Peterson Award" for enhancing diversity in higher education. As a result of this program, minority enrollment in graduate school rose from below 16 students in 1987 to approximately 282 by 1990. A program known as "Smile" has also been established wherein upper division black students advise lower division black students.[240]
Also available at the university is a six-week summer program which brings minority students to the campus to learn about graduate study and to participate in a number of programs including career aptitude tests. There exists a black graduate/professional student organization that meets regularly. The university also participates in national, regional and state fellowship programs/consortia designed to increase minority participation. Additionally, "Multicultural Retreats" are sponsored by the Division of Student Affairs and involve participation throughout the university.[241]
2. MISSISSIPPI STATE UNIVERSITY
For the 1991-92 school year, African-Americans made up 13% of the total enrollment at MSU.[242] MSU actively recruits minority students and hosts a "Minority Student Achievement Program" (MSAP) that attracts approximately 200 minority students each year. MSU's black student council awards a $1,000 "Martin Luther King Scholarship" to an incoming freshman student each year. MSU has a Cultural Diversity Center designed to aid minority students academically as well as socially. The Center serves as a liaison between minority students and the university's administration. Recruitment assistance grants are provided to individual departments by the Graduate School to assist departments in minority recruitment. Monies allocated for this purpose are applied to travel funds and/or the development of minority recruiting literature. The Patricia Roberts Harris Program was established in 1992 at MSU. The program, which is presently funded by a $768,000 grant, is designed to aid African-American students and women in pursuing doctorates in disciplines where black and females are underrepresented. Fellowship assistance through the program spans three years. Another program established at the university in 1989 is targeted at African-American and female undergraduates and designed to encourage minority participation in graduate school. Presently funded at approximately $95,000, the program offers participants the chance to study on the campus for a summer in certain disciplines where as a group the participants are underrepresented.[243]
MSU presently sets aside approximately $80,000 per year to fund its Plan of Compliance. Within the Graduate School, the Plan of Compliance monies are used to provide assistantships for students until the completion of their degree. MSU is the permanent host of the National Black Graduate Student Conference which draws participants from across the country.[244]
3. THE UNIVERSITY OF SOUTHERN MISSISSIPPI
For the 1991-92 school year, black students made up 12% of the total enrollment at *1469 USM.[245] Like MSU, the Graduate School at USM provides monies to departments in the university for travel and for the publication of minority recruitment brochures/literature. In 1993, the university had set aside approximately $500,000 for an assistantship budget to attract black teaching assistants through stipends and tuition waivers. Further assistance to graduate students in the disciplines of chemistry and polymer science is provided in the form of four-year fellowships financed through federal and university monies. The Patricia Roberts Harris Fellowships available at MSU are also provided by USM and include eleven stipends with tuition assistance.[246]
The National Physical Sciences Consortium between business and industry and the university provides stipends for black students and is of recent origin at USM. Other stipends (six in number) for black doctoral students through cooperation with the Board and the SREB are likewise of recent origin. Of the eight national black sororities and fraternities in existence, six are active at USM and one other inactive at the present time.[247]
4. DELTA STATE UNIVERSITY
Twenty-three percent of DSU's student body is African-American, the largest percentage of any HWI. Since the 1987 trial of this case, DSU has had an approximate 52% increase in black student enrollment. For the same time period DSU's white enrollment has increased only approximately 19%.[248] African-Americans make up approximately 6% of the university's faculty. As noted previously, DSU offers its black faculty a chance to further their education and thus improve their credentials by pursuing terminal degrees elsewhere as a "grow your own" strategy for improving the percentage of black faculty at DSU.[249]
African-Americans are present at all levels of student life at DSU, and have held leadership roles including President and Vice-President of the student body as well as Homecoming Queen. DSU has had a black admissions counselor in its recruiting office since 1977. DSU participates in the Mississippi Alliance for Minority Participation and the Delta Mathematics Project, a joint venture of the Board, DSU, MVSU and 27 school districts in the Mississippi Delta designed to improve math instruction in the region.[250]
5. MISSISSIPPI UNIVERSITY FOR WOMEN
MUW's black enrollment has increased 51% since the original trial of this case in 1987. Efforts to increase diversity include sensitivity training for MUW recruiters and the use of minority recruiters, recruiting publications and surveys. MUW provides Heritage Scholarships to blacks entering the university with ACT scores of 18, 19 and 20. MUW also provides its admissions staff with sensitivity training, and has set up an office of multi-cultural affairs which serves as a liaison for the institution and its minority students.[251] Finally, like all of Mississippi's HWIs, MUW has an active Black Student Union organization.
D. CONTINUING RACIAL IDENTIFIABILITY
For the period 1991-92 there continues to be a sizable underrepresentation of black students at most of the HWIs in the state as well as a sizable underrepresentation of white students at all of the HBIs in Mississippi, although the number of black students choosing to attend HWIs is steadily increasing. The HBIs as a group had approximately two-thirds of the total black student enrollment in the system at the undergraduate level for the year 1991-92. In 1986, of the total black undergraduate students in the *1470 system, 69% attended the HBIs. By 1991, that figure had decreased slightly to 67%.[252]
In 1986, 61% of all black graduate students in the Mississippi system of higher education were enrolled at the HBIs but, by 1991, more than half the black graduate students attended a HWI approximately 59%.
It is obvious to the court that black students in Mississippi are moving to the HWIs, but little change has been seen in the racial percentages of the HBIs. As will be discussed hereinafter, one of the main problems in desegregation throughout the United States in the field of higher education, has been not in more and more blacks deciding to take advantage of the greater opportunities offered at public comprehensive universities, most of which are historically white, but in the paucity of whites who choose to go to the HBIs.
E. RETENTION
System-wide, white student retention rates continue to be higher than black student retention rates. For the period 1985-86 to 1991, approximately 47.7% of the white students entering college in 1985-86 had earned degrees by 1991 compared with approximately 29.4% of the entering black student cohort.[253]
Contrary to the nurturing and support theory often urged as the reason to maintain predominantly black colleges, without exception, Mississippi's HWIs have consistently better retention/graduation rates for black students than do the HBIs for black students.
F. STUDENT CHOICE AND THE HWIs
The reputation and historic racial identity of state campuses play a role in influencing black and white students in their decisions of where to apply.[254] Student choice in Mississippi, as reflected by stated preferences on the ACT questionnaires for public universities in the state, was analyzed by the defendants' statistician in 1987 and again in 1994. That analysis revealed that black students who were qualified by ACT scores to attend the HWIs in 1985-86 chose to attend DSU, MSU, MUW and USM in statistical parity with their representation in the qualified pool. With respect to UM in 1985-86, the number of black students in the qualified pool eligible to attend this university was not in statistical parity with the number actually enrolled.[255] Dr. Siskin's analysis reveals that black students qualified to attend the HWIs in 1992-93 were represented (enrolled) at DSU, MSU, MUW and USM in statistical parity with their representation in the qualified pool. With respect to UM, in 1992-93, the number of black students in the qualified pool to attend this university was not in statistical parity with the number in actual attendance.[256]
G. STUDENT CHOICE AND THE HBIs
Five factors generally are thought to influence white attendance at HBIs of higher learning. As described by the private plaintiffs' expert, they are as follows: (1) location and the commuting convenience incident thereto; (2) lower expenses than those incurred at comparable institutions; (3) broad accessibility, i.e., that students can gain entrance; (4) academic program offering at the desired quality; and (5) racial idealism.[257] Analysis of the data provided by ACT questionnaires *1471 for the years 1990-1993 indicates that white college-bound high school students continue to express little or no preference to attend historically black public universities in Mississippi.[258] Evidence also indicates that this is a national phenomenon.
Because white students who attend HBIs as a group tend to be older students rather than those directly out of high school, the very low numbers consistently found through analysis of ACT data do not with complete accuracy depict the actual numbers of white Mississippians attending the public HBIs.[259] As a group, the predominant characteristic of the students indicating some preference to attend a historically black school was their academic qualifications. These students were the least qualified academically to attend any four-year university in terms of high school grades, ACT scores and lack of college preparatory courses. Factors identified in the ACT questionnaire such as location, program offering, tuition or cost, and the special needs of the student were statistically insignificant relative to the academic preparation factor and thus, possess little predictive power in determining why white Mississippians choose public historically black universities in the state even to the limited extent that they do. Of the white students who did choose to attend public black universities in Mississippi, cost was the most significant factor after that relating to academic preparation.[260]
CONCLUSION: CLIMATE
Some of Mississippi's HWIs continue to have an image problem, whether deserved or not, in the black community. That image problem stems from both the universities' historical roots and past participation in discrimination near the close of the de jure period, as well as its continued links to the past in terms of the symbols with which some universities and/or their alumni choose to identify. However, African-Americans are becoming more and more comfortable in applying to and enrolling in the HWIs as shown by the dramatic increase in the percentage of black students enrolled in the HWIs in Mississippi over the past ten years.
The myriad of reasons why whites attend the State's historically black universities or, conversely, why blacks choose to attend historically white universities, while interesting, is not central to the issues involved in this lawsuit. Rather, the issues in this cause focus on determining where unlawful barriers, if any, continue to persist which deter further desegregation of the system. Stated differently, in this context, the court must identify traceable practices and policies from the de jure period that discourage or prevent blacks from attending the HWIs or, conversely, whites from attending the HBIs.[261] Thus, being better informed of why students do or do not choose a particular institution of higher learning is helpful in determining whether a particular vestige of the past shapes or impacts student choice and determines the result. Directing or impacting student choice in and of itself, however, is not an end to be shaped by this court.
Ghosts of the past, which potentially have segregative effects by stimulating a climate nonconducive to diversity on the historically white campuses, include the lack of minority faculty as well as their absence in significant numbers in the top positions within Mississippi's academia. As noted earlier, the acute shortage of qualified faculty is to some extent but by no means exclusively a product of the de jure segregation practiced throughout the South. This shortage is a national, not a regional one and there is a degree of irony in the fact that the very *1472 institutions which prevented the enrollment and participation of African-Americans in higher education, now must pay a premium for their presence in order to assure their students adequate preparation for the cultural diversity they will face upon graduation.
The court finds that each university in the state has made and continues to make significant progress in its battle to increase diversity and to provide a welcoming climate on its campuses. The court has considered evidence of a subjective nature in determining whether these actions have been and are currently effective. The court has likewise considered objective evidence of the success or failure of the HWIs to further provide a welcoming climate for all groups in society. The testimony of dissatisfied students and disgruntled professors has been considered together with evidence of retention and participation rates.
The court has heard numerous witnesses testify as to their individual experiences on most of the HWI campuses. Juxtaposed to that evidence are the objective measures typically utilized to gauge campus climate such as institutional retention rates. The plaintiffs' experts testified that the reason that the HWIs have higher retention rates for black students than the HBIs is because of the clientele served by the two groups; however, nothing in the retention rates of the HWIs indicates a pervasive hostile climate at any, much less all, of the HWIs. The evidence showing that, nationally, traditionally black universities as a group have higher retention rates for black students than their traditionally white counterparts, but that the defendant HWIs have higher black retention rates than the HBIs, is evidence that the defendant HWIs in this cause are doing something right.[262] Moreover, by accepting the proposition that the academic preparation of the universities' clientele affects the overall retention rate, where a racially hostile climate is pervasive at an institution, the retention rates between black and white students at that university, evidencing the same or approximate level of preparation,[263] should vary and, to a small degree, they do; however, that degree of variance is too small to indicate pervasive racially hostile conditions.[264]
GOVERNANCE/BOARD OF TRUSTEES[265]
A. CONTENTIONS
"Whether vestiges of the State operated racially dual system of public higher education remain in the State of Mississippi, particularly with respect to ... [the] composition of [the] Board of Trustees ... and administrative staff."[266]
B. BACKGROUND
Prior to 1910, the governance of the system of higher education was through separate governing boards for each institution. In 1910 the State went to a single board system which then governed the four extant colleges, Alcorn, Mississippi Woman's College, University of Mississippi and Mississippi State University. No blacks were appointed to this board during its existence.[267]
In 1932, the State created and entrusted the Board of Trustees of State Institutions of *1473 Higher Learning with the responsibility for all institutions of higher learning including the state normal schools.[268] No black person served on the Board of Trustees until 1972. Ayers, 674 F.Supp. at 1550. In 1974, the first black persons were appointed to serve in the capacity of professional staff members. Id.
C. TODAY
Presently, the Board is composed of twelve persons representative of various professions appointed by the governor with the advice and consent of the Mississippi Senate. All university presidents and the Commissioner of Higher Education report simultaneously to the Board. Currently, there are three black members on the Board, two of whom testified in support of the Board's proposals in this action. The court finds it persuasive in the area of governance and in deciding the issue of whether black board members better represent the interests of African-Americans than do whites, that in presenting to the court the views on merging HBIs and HWIs and on admissions standards, black board members testified contrary to the positions taken by the plaintiffs herein; and the only board member who testified in support of any of the plaintiffs' positions was white.
The immediate past president of the Board is African-American, and black board members are equally active in all aspects of board business. Evidence indicates that the Board continues to be responsive to the concerns raised in this lawsuit. The immediate past president of the Board, Mr. Sidney Rushing, appointed a task force charged with reviewing factors in the State that impinged on diversity system-wide. Of the Board's 108 employees, 26 are black. Black board staff members hold professional positions of responsibility such as Assistant Commissioner for Academic Affairs and Associate Commissioner of Academic Affairs.[269]
CONCLUSION: GOVERNANCE
The court finds no evidence of a current practice "of denying or diluting the representation of black citizens on the governing board," or of "arbitrarily limiting the activities of the administrators of HBIs in a way that impedes their ability to protect the right of their students."[270] The fact that blacks have actively participated on the Board for more than twenty years indicates that no current exclusionary policy exists. As to the contract issue, it has been made clear that the State, through the Board, failed to award contracts or consultantships to black citizens during de jure segregation. The plaintiff parties' allegation that this practice continues to exist remains unsubstantiated in the absence of evidence that any blacks have applied for or have been denied available consultantships.
FAILURE TO PLAN/ASSESS[271]
A. CONTENTIONS
It is the United States' position that the defendants' liability in part flows from their failure to formulate a plan for desegregation. Stated succinctly, "it is the independent duty of the State to search for and eradicate all remnants of the dual system and demonstrate to the Court `that it has dismantled the dual system.'"[272]
B. OVERVIEW
The United States Department of Health, Education and Welfare (HEW) rejected the IHL Board's 1974 Plan of Compliance. Ayers, 674 F.Supp. at 1530. The governing board commissioned five studies between 1927 and 1966.[273] These reports helped shape higher education for the State including the development of institutions. The State has made different assessments of higher education needs during various time periods. Some assessments ignored black *1474 higher education; some opposed higher education for blacks; and still others made recommendations for expansion and programmatic development in relation to higher education for blacks.[274] As noted earlier, Mississippi's system of higher education is marked by a very high degree of institutional autonomy. While the Board recommends what policies to follow with regard to addressing diversity issues, in the words of one board member, "[w]e leave it to the institutions to diversify themselves."[275]
CONCLUSION: FAILURE TO PLAN/ASSESS
The court must reject the United States' position that the obligation of the State in desegregation of the higher education system must be codified in a formal plan.[276] Likewise, the court rejects the notion that the Constitution requires an assessment of public institutions on the basis of their student bodies' predominant racial characteristics.[277] As previously observed by this court and other courts who have considered desegregation cases in higher education, the eradication of the vestiges of the de jure systems will not necessarily eradicate the racial identifiability of public institutions. The defendants' past failure to plan and assess the deficiencies in their higher education system that have fostered segregation and to eliminate the vestiges of their prior de jure segregated system will be addressed in the remedial decree and any further orders of the court.
ACCESS: COMMUNITY COLLEGES[278]
A. OVERVIEW
The State's community college system is the subject of a separate lawsuit, severed from this suit on an earlier occasion. (Community colleges described herein are public two-year colleges, also referred to as junior colleges.) Nonetheless, to the extent that the access issue has turned upon evidence regarding the community college system, specifically black transfer and participation rates, the same were explored in this action.
B. BACKGROUND
There is an association between black enrollment and vocational programs offered at predominantly black junior colleges; namely, that where there is a higher percentage of black enrollment, there is a high percentage of students enrolled in vocational courses.[279]
An ACT score is now required for entrance into some academic and technical programs offered at junior colleges across the state.[280] In some instances, the ACT score required for admission is actually higher than that required at any of the public four-year institutions. This appears to be a significant change from 1987 when this action was first tried.[281] At many junior colleges, an ACT minimum score is also employed in making decisions about financial aid, namely, scholarships.[282] For students beginning their post-secondary education in a four-year institution, evidence exists to suggest that there is a higher probability that those students will complete a bachelor's degree than those beginning in a two-year institution. This is a national phenomenon. There is some evidence to suggest that blacks do not transfer to four-year universities in Mississippi and nationally at the same rate as do whites.[283]
*1475 In the public four-year university system as a whole, only 8% of the total black enrollment are transfer students originating from the community college system as compared with 19% of the white students so enrolled.[284] The overwhelming majority of students who start at the junior college level do not transfer to a four-year university but of those who do, their retention/graduation rates are lower than those of students who began at a four-year institution.[285] The reasons for the disparity in transfer rates to four-year institutions between the races has not been fully explained. Clearly, the fact that black students are more populous in vocational programs which do not require more than two years to complete plays some role in explaining the disparity.
Students do not transfer in equal numbers to each of the four-year campuses. USM had the highest proportion of transfer students in its student body (45.64%) while MVSU had the lowest percentage (4.70%) for the Fall of 1993. USM has a higher percentage of transfer students than the other Mississippi universities largely because of its recruiting efforts and its articulation agreements with several community colleges on the Gulf Coast and surrounding regions.[286] Because the two-year community colleges are implementing ACT cutoff scores in some courses, it appears that the two-year system is not serving as a full alternative route to the bachelor's degree particularly for black students who on average have lower ACT scores than their white counterparts.[287]
CONCLUSION: COMMUNITY COLLEGES
To some Board members, the public community college system serves as an efficient vehicle for the remediation of students not prepared for four-year institutions.[288] While it is perhaps logical to assume, as some board members do, that it is more economical to remediate students at the community college level, it is obvious that the community college system in Mississippi is not, in fact, performing that task to any great degree, particularly in light of its newly imposed program specific ACT cutoffs. There is no allegation that the community college system is operated in this manner with discriminatory purpose or any showing that any policy and/or practice identified with the community college system is traceable to de jure segregation.[289] Evidence indicates that the community college system can have an impact on the admissions policies of the universities and their ability to further diversify institutions of higher learning. This court still has the community college case within its jurisdiction, and the State, it appears, is losing a valuable resource in not coordinating the admissions requirements and remedial programs between the community colleges and the universities. Such coordination has not been proposed to the court, but the court will direct the Board to study this area and report *1476 to the Monitoring Committee on its results.
ATHLETIC CONFERENCES[290]
The continued practice of having the HBIs compete in racially identifiable athletic conferences is traceable to Mississippi's as well as the rest of the South's de jure past.[291]
Although the defendants have denied that participation in racially identifiable athletic conferences fosters segregation at the state universities, no evidence has been presented which confirms or negates the allegation that this vestige of the past impedes further desegregation of the HBIs. This court has placed the burden on the defendants to negate the inference that a traceable practice currently fosters segregation, which in this context, means that the practice challenged does not impede further desegregation of the HBIs/HWIs.
Although not required to come forth with an educationally sound practicable alternative, the United States contends that the withdrawal from "athletic participation in conferences which fail to gain membership from historically `other-race' schools" is such an alternative. The court is unaware from this record of any HBI that has sought to join or has any desire to join the SEC or any of the other Division I athletic conferences. The court sees no practicality in such a move and has heard no testimony endorsing the practicality of such a joinder. Most universities in Division I conferences throughout America, including UM, MSU and USM, have athletic scholarships that are predominantly bestowed on black athletes. The court finds the fact that no HBI in the state is a member of an athletic conference with a HWI in this state is not evidence of discrimination against black students. To the contrary, from observations at athletic events, the court can take judicial notice that black students far outnumber white students in the statistical pool of college athletics in the HWIs, and at the HBIs black athletes are generally the exclusive participants. To argue that making HBIs members of Division I athletic conferences will somehow aid desegregation is unsupported by any evidence in this record.
The fact that one may identify the predominant racial composition of schools through their participation in an athletic conference, in itself, says nothing of its impact on desegregation of the institution under scrutiny. No witness, expert or lay, has testified that participation in racially identifiable athletic conferences impedes desegregation of Mississippi HBIs/HWIs. While one witness proffered the opinion that such participation might influence a student's decision of where to attend,[292] the court finds that testimony unpersuasive. If there is one aspect of university life that most evidences institutional diversity, it is athletic competition. No witness aligned with any party has indicated either the feasibility or desirability of modifying this practice. Accordingly, the court cannot conclude that institutional participation in racially identifiable athletic conferences fosters either the racial identifiability of Mississippi IHLs or that the elimination of such participation would be consistent with sound educational practices.
GRADUATE COUNCILS[293]
No evidence was presented to support the allegation, raised for the first time on remand, that "black persons" are "excluded ... from graduate school councils, faculty councils and other councils." While it is obvious that blacks were excluded from such organizations as they existed at the HWIs during de jure segregation, no testimony was presented to show such exclusion since de jure segregation. Graduate councils at both the HWIs and HBIs, as well as faculty senates, continue to be racially identifiable.[294] Beyond that, the court has heard no evidence serving to identify a practice traceable to de jure segregation that continues to segregate the universities.
*1477 CONCLUSION: INTERACTION OF POLICIES AND PRACTICES FOSTERING SEPARATION OF THE RACES; THE SCOPE OF THE VIOLATION
After consideration of the evidence, the court finds the following:
(1) Undergraduate admissions policies and practices are vestiges of de jure segregation that continue to have segregative effects.
(2) Graduate admissions policies and practices are not vestiges of de jure segregation.
(3) Policies and practices governing the missions of the institutions of higher learning are traceable to de jure segregation and continue to foster separation of the races.
(4) Funding policies and practices follow the mission assignments and, to that degree only, are traceable to prior de jure segregation.
(5) Policies and practices governing the allocation of facility funding in terms of capital improvements/repair and renovation funding do not follow the mission assignments and are not traceable to de jure segregation.
(6) Policies and practices governing equipment availability and library allocations follow the mission assignments and, to that degree, are traceable to de jure segregation.
(7) Current employment policies and practices are not traceable to de jure segregation.
(8) There are no current policies and practices traceable to de jure segregation that foster a racially inhospitable climate at the HWIs.
(9) Current policies and practices governing appointment to or employment by the Board are not traceable to de jure segregation.
(10) The practice of maintaining participation in racially identifiable athletic conferences is traceable to de jure segregation, but does not have segregative effects.
(11) Policies and practices governing appointment to graduate councils are not traceable to de jure segregation.
(12) Policies and practices relating to the provision of duplicative offerings between proximate institutions which are racially identifiable are traceable to de jure segregation and continue to have segregative effects.
(13) Operation and maintenance of two racially identifiable land grant programs are traceable to de jure segregation and have segregative effects.
(14) Continued operation of eight universities, all of which are to some degree racially identifiable at the undergraduate level, is traceable to de jure segregation and continues to have segregative effects.
DEFENDANTS' PROPOSED REMEDIES
In response to the United States Supreme Court decision in this action, the defendants proposed a limited reorganization of the State's system of higher education. Certain elements of the proposal are discussed below.
ADMISSIONS
A. OVERVIEW
Conceding only that the Supreme Court "criticized" the previous existing admissions standards, the defendants nonetheless seek to alter the current standards and to put in place a system-wide admissions standard for the 1995-96 school year.
B. PROPOSAL
1. OVERVIEW
Set to begin in the Summer of 1995, the Board has instituted a state-wide admissions policy to govern all universities. Under the proposed admissions standards, "regular admission" to any university will be granted for high school students with a minimum 3.20 high school grade point average ("GPA") in a specified College Preparatory Curriculum or "core."[295] Those students under a 3.20 GPA but (1) equal to or greater than a 2.50 GPA in the core, or a class rank in the top 50% in *1478 their high school graduating class and (2) a minimum score of 16 on the ACT may also be regularly admitted. Finally, all high school students completing the core with a minimum GPA of 2.00 and a score of 18 on the ACT may likewise be regularly admitted.[296]
2. SPRING PLACEMENT PROCESS
Students desiring to enter a four-year institution in the state, yet failing to qualify under the proposed "regular" admissions standards, may nonetheless be "conditionally admitted." Such students must successfully complete an "Academic Screening Program" designed by the Board to determine whether a student will benefit from remediation and/or what remediation the student will need in order to become prepared for college.[297]
Described as a process that begins in the spring of a student's senior year in high school, data is collected on the student through a variety of instruments including the "accuplacer," a study skills instrument, ACT subtest scores and counselor interviews.[298] Interviewing, testing and counseling will be held on each university's campus prior to the beginning of the summer session. For students required to be screened, they must complete the Mississippi College Placement Examination or "MCPE", a standardized placement examination.[299] After the data gathered during the spring placement process is analyzed, a placement decision is made. The decision will address whether the student should be enrolled in summer remedial instruction or regular freshman curriculum with or without academic support.
3. SUMMER PROGRAM
For those students who after screening indicate a need for remediation, a Summer Program of approximately ten to eleven weeks is available. The program is described by its developers as "an intensive program that concentrates on those high school subject areas (writing, reading, mathematics) that are applicable to success in first-year college courses." Students who complete the Summer Program with success are admitted to the university of their choice "with mandatory participation in the Year-Long Academic Support Program" during their freshman year.[300]
As proposed, those students who participate in the Summer Program will experience remedial courses taught in the traditional classroom with computer-assisted individualized components. Additionally, students will become climatized to college campus life though a variety of cultural, recreational and social activities offered through the program. About halfway through the program (approximately the fifth week mark), an assessment will occur to allow those students, who have demonstrated the ability to negotiate college-level course work, the chance to exit early at this point.[301]
At the end of the summer, the students are again tested with the accuplacer to determine the progress the student has made between *1479 entry and exit and to what extent the student has mastered the required material. Input from the students' teachers and/or counselors in what has been described as a type of case study conference will also be considered. Finally, what has been termed the Learning Assistance and Student Skills Inventory (LASSI) may be employed to determine the students' readiness to engage in successful college study as well as to assess behavioral strategies.[302]
Following the Summer Program, the students enter college in the Fall with a moderate amount of academic support services or with a lighter course load along with a greater amount of support services. Otherwise, the students are counseled to explore other educational alternatives.[303] The Summer Program's reliance on a series of assessment instruments is a recognition of the generally recognized principle in the field of developmental education that students learn in a variety of ways at varying rates and through the employment of different intervention strategies.[304] The Summer Program features early intervention on a comprehensive scale. It is contemplated that the Summer Program will employ state-of-the-art computer-based assessment, instruction, software and management. Computer-based instruction is combined with traditional classroom instruction and individualized instruction.
As contemplated, the yearlong academic support program is a continuation of the individualized instruction received in the summer and includes computer-based instruction, freshman seminar programs, learning centers and laboratories, tutoring, and counseling.
C. IMPACT PROJECTED FOR NEW ADMISSIONS STANDARDS
The predicted impact of the new 1995 standards depends on the frame of reference, e.g., whether the 1995 proposed standards are compared with admissions standards prevailing at the time of the 1987 trial or, alternatively, those prevailing today. As previously noted, when the ACT changed its format in 1989, and the HBIs retained the same ACT score entrance requirements, the HBIs in effect reduced their admissions requirements. As compared with the standards in existence and litigated in the 1987 trial, the predicted impact is as follows: (a) the pool of black students eligible for regular admission to a public HWI will increase from approximately 32.4% to 52.5%; (b) the pool of black students eligible for regular admission at the HBIs in 1995 will be increased from approximately 45.3% to 52.5%; (c) the pool of black students eligible for admission to the system as a whole will also increase under the proposed 1995 standards as compared with the 1987 standards.[305]
As compared with the standards which prevail today (Enhanced ACT of 15 at the HBIs), 68.2% of the black high school graduates who took the ACT are currently eligible for regular admission to some university in the system versus 52.5%[306] or 50.7%[307] which would be eligible in 1995 under the proposed system. Thus, there would be an overall percentage decline of black students eligible for regular admission to the system;[308] however, the Summer Program would, it is anticipated, give those students another opportunity to gain admission into the university of their choice.
D. PROPOSED REMEDIES/ADMISSIONS
1. PRIVATE PLAINTIFFS
It is the private plaintiffs' position that the regional universities (ASU, MUW, MVSU and DSU) should essentially have what they *1480 term "open admissions" (i.e., an ACT score of 10 and a high school diploma). The three white comprehensive universities would use the previously described admissions standards the Board now proposes for all the universities; JSU would have open admissions for eight years with the option thereafter of gradually raising its admissions standards to the level prevailing at the comprehensive universities.
Furthermore, it is these plaintiffs' position that no university may employ an ACT score or any other test score as a cutoff score or as the sole selection criterion in the decision to award scholarship monies or other financial aid. The plaintiffs also propose that all test cutoff scores now governing entrance to any graduate or professional program be suspended pending examination of the standards by the plaintiffs.
2. UNITED STATES
Several of the United States' witnesses endorsed the admissions standards as outlined in a September, 1992 Board proposal that was never adopted. In pertinent part, that proposal recommends the following admissions standards: attainment of a 2.0 GPA in the core with a minimum ACT score of 16 for "priority admission"; 2.50 GPA (core) with a ranking in the upper fifty percentile (50%) of the graduating class and a minimum ACT composite score of 13 for "regular admission."[309] The United States' witnesses appear to acknowledge as educationally sound, use of the ACT assessment as part of the admissions standards.[310] The United States also appears to endorse state-wide admissions requirements and has also suggested adoption of a 2.5 overall GPA for admission to all universities.[311]
E. CRITIQUE: ADMISSIONS
The Board's proposed admissions requirements have as a component the taking of a certain core curriculum as described heretofore. While no one disagrees as to the benefits accruing to students by exposure to the core,[312] the private plaintiffs have raised issues as to whether or not the core is provided in all school districts and the quality of the core provided in the poorest school districts of the state. In 1987, this court concluded that the "prescribed pre-college curriculum is an appropriate measure of academic progress and achievement in high school." Ayers, 674 F.Supp. at 1532-33. No evidence has been adduced to disturb this court's finding that "the completion of the high school course requirements has resulted in a higher level of academic preparation for those students wishing to experience the rigors of academic life at the university level." Id., 674 F.Supp. at 1535. The same holds true today.[313]
Evidence has been adduced that blacks participate in the core curriculum in fewer numbers than do white high school students.[314] Rather than seeking a remedy for the low participation rate, the plaintiffs ask the court to prohibit the Board from requiring participation in the core. The plaintiffs have not called into question the abundance of testimony validating the core curriculum requirement as a desirable educationally sound component of the admissions standards. Evidence exists that the core is provided in every school in the state.[315] The court does not find it persuasive that many school districts which have less money to spend on their programs than others are *1481 often predominantly black and less able to adequately fund the core subjects. The record shows that many of the school districts which rank near the bottom in budget expenditures turn out students who as a group rank near the top on the standardized college admission tests relative to other school districts.[316] The court finds that the core curriculum component is educationally sound.
Clearly, the new admissions standards through their uniformity will eliminate the prior segregative effects of the previous differential admissions standards between the HBIs and HWIs, noted by the Supreme Court in Fordice, ___ U.S. at ___, 112 S.Ct. at 2739. Use of the ACT in combination with a prescribed high school GPA will provide substantial flexibility in the regular admissions process and is an educationally sound method of corroborating academic readiness not otherwise available by reliance on high school GPAs alone.
While the new admissions standards may reduce the number of black students eligible to be admitted to the system without remedial courses required, it is not evident that the new standards will actually reduce the number of black students ultimately admitted to the system as either regular or remediated admittees.
The plaintiffs have questioned whether high school graduates having multiple academic deficiencies, and not eligible for formal admission until completion of the Summer Program, will attend the Summer Program or perhaps forego a college education altogether. The court does not view the Board's obligations to the state's graduating high school students as encompassing students ineligible for regular admission under its proposal, who do not choose to participate in a screening process for academic placement analysis. It does not appear to the court, as argued by the plaintiffs, that the Board has disclaimed responsibility for the students currently exiting the state's primary/secondary school system. It has made commendable efforts toward increasing the quality of the educational experiences of those students through "Project 95" and other such programs.
While components of the program have been tested elsewhere in the United States, the Summer Program has not been implemented as a complete and comprehensive system. The accuplacer has been pilot-tested at some high schools in the state, but as of the time of trial, an analysis and evaluation of that testing had yet to be undertaken.[317] The witnesses for the plaintiffs took issue with the opinions proffered by the defendants' witnesses on the anticipated benefits of the Summer Program but, primarily, the basis for that difference of opinion is confined to concerns over the expected length of the program.[318] The creator of the program has nationally recognized expertise in the remediation/developmental education arena[319] and the court finds the proposed program to be credible and educationally advanced. In its proposed form, it is considered by its developers as an educationally sound developmental system.[320]
CONCLUSION: UNDERGRADUATE ADMISSIONS
After considering the evidence of the general admissions policies throughout the *1482 United States, the court must reject as an admissions standard, open admissions for any university. As a diagnostic tool, even the plaintiffs' witnesses acknowledge that the ACT continues to be a valid indicator of academic preparation to do college-level work and areas of educational deficiencies.[321] While there is evidence to suggest that blacks as a group score lower on the ACT than whites, that evidence does not compel abandonment of the ACT as a placement aid. The primary disagreement between the parties is the use of the ACT as a component of the admissions decision, as proposed by the defendants, rather than solely as a placement aid as proposed by the plaintiffs.
The plaintiffs contend that use of the ACT in admissions decisions is not justified by the small improvement in correlation between college GPAs and high school GPAs when ACT scores are also used as a predictor.[322] Average ACT scores do vary considerably among school districts in Mississippi.[323] As previously noted, however, the court cannot conclude from the evidence that the size of a school district's budget is directly proportional to the ACT scores of that district's students. The converse is true in many cases. Nevertheless, the court still finds the ACT a sound component of the admissions decision for the reason that the ACT, in combination with high school grades, remains a better predictor of academic performance than either criterion alone.[324]
Some expert witnesses, including some of the defendants' witnesses, have concluded that differential or tiered admissions standards based on university missions are both sound and the usual practice in higher education where the institutional landscape is not homogeneous.[325] However, the proposal of the Board in this area is also educationally sound, especially in a system which has a large contingent of two-year community colleges, most of which have open admissions in most fields. The Board's admissions proposal will therefore be ordered into effect. These admissions requirements even for full regular admission are quite moderate. As one witness testified, with such moderate admissions requirements, it might well develop that in the future in some states such as California, where approximately only one out of ten applicants is admitted to the state university system because of the competitive admissions requirements, students will hear about a state with moderate admissions requirements, a clean environment, relatively low crime rates, and college campuses where as many as 90% of the students are attending on federal Pell Grants, and there will be a mass migration to that state. These moderate standards then no longer would be feasible because the state universities could not accommodate the large number of persons seeking admittance, and admissions requirements would have to be raised to accommodate only those who are best prepared to take advantage of the educational opportunities offered.
The court does not find persuasive the concern voiced by the plaintiffs that these moderate standards, as proposed by the Board, will exclude from college many who are unprepared as a result of their minority racial status. To the contrary, the evidence is that overall there will be an increase in the number of eligible minorities when compared with the standards in existence before the HBIs lowered their admissions requirements in 1989. The number of eligible African-American applicants to the HWIs would actually increase, a strong move toward desegregation. The court does not find persuasive or educationally sound the adoption of open admissions or continually lowering admissions standards, as was done at the HBIs after the 1987 trial. The universities across the nation generally are moving toward higher admissions requirements, not lower ones. According to the testimony, students in working toward goals will usually do that which is expected of them. If they believe they need not prepare themselves for college by taking the core curriculum in high school, *1483 they will not do so. Such unpreparedness may bring them to college campuses unable to execute the rigors of college work and result in low retention rates, college debt accumulations and years expended with no degrees. Conversely, if those students interested in college understand that a certain minimum standard of performance in the secondary schools is required in order to be eligible to attend a higher education institution, those students will more likely meet those requirements and be ready for college work. It has also been shown that institutions of higher learning which open their doors to unprepared students via open admissions not only do a disservice to many of the admittees, but can lower the quality and, concurrently, the prestige of the institutions generally. The Board's admissions standards include the Summer Program for remediation purposes for those who need it and also a highly efficient community college system with quality instruction, a significant number of which have open admissions.
MISSIONS
A. OVERVIEW
The Board chose not to alter the mission designations of the various institutions slated to persist under the proposed reorganization of the system of higher education. The three historically white "comprehensive" universities remain "comprehensive" in name and in fact; JSU continues under the previously defined "urban" status with an added "enhanced" designation, and the remaining institutions retain their "regional" designations. However, the defendants have proposed to enhance the funding and programmatic offerings at JSU and ASU. In particular, the changes in programmatic scope of the institutions include the following:
B. PROPOSAL
1. JACKSON STATE UNIVERSITY
JSU will be encouraged and aided to become a multi-campus institution to serve the Jackson urban area.... Selected programs in the field of allied health, which are non-duplicative of those at UMMC or which may be offered on a cooperative basis with UMMC, shall be provided by JSU either at the main campus or at another suitable location in the Jackson area. Programs in social work (Ph.D) and urban planning (Masters/Ph.D.) shall be provided by JSU at its Graduate Center (formerly the Universities Center). A doctoral program in business (DBA) shall also be provided by JSU at its Graduate Center when JSU's existing business programs are accredited. If a clear need is shown for an urban area law school providing both day and night opportunities, such a school will be provided by JSU at its Graduate Center.[326]
2. ALCORN STATE UNIVERSITY
The State shall provide the Small Farm Development Center at ASU with annual research and extension funds to match dollar-for-dollar similar federal funds appropriated to ASU, up to an aggregate of $4 million each year. An MBA program shall be provided by ASU at its Natchez Center.[327]
C. PROPOSED REMEDIES: MISSIONS
1. JSU: Private Plaintiffs
As a point of common ground, the plaintiff parties agree to the defendants' proposed programmatic changes and financial enhancement of the institution. No evidence indicates that these modifications are not educationally sound. Rather, it is the plaintiff parties' contention that these changes are not enough and that the plan for JSU reflects a lack of long-range commitment to the betterment of JSU, a commitment that must be made if JSU is to become desegregated.
As a remedy to the inequitable treatment of JSU in the past and ostensibly as a means of increasing other-race presence at JSU, private plaintiffs want the institution to achieve control over the Universities Center located in Jackson and the University of *1484 Mississippi Medical Center (UMMC) also located in Jackson.
2. JSU: United States
The United States takes the position that institutional and programmatic enhancement of JSU will increase diversity at the campus. According to the United States' expert witness, a successful desegregation plan should have at least nine essential elements. Relevant to the mission area are the following recommendations: (1) reclassification of institutions into a single state-wide system with sharpened institutional missions and genuine areas of institutional program exclusivity; (2) enhancement and sharpening of the missions of the HBIs; (3) elimination of selected non-essential (non-core) high demand programs at the HWIs; (4) transfer of selected non-essential high demand programs from the HWIs to the HBIs; and (5) the creation of new high demand programs at the HBIs.[328]
D. CRITIQUE: MISSIONS
1. JSU
Situated in the largest population center in the state, JSU has the primary mission to serve the needs of the Jackson area. Without a doubt, JSU's arrested development is traceable to the policies and practices of de jure segregation. Although the relatively fewer programmatic offerings and the complete absence of professional programs at JSU more likely than not affect its position and reputation vis-a-vis the white comprehensive universities, the court now must focus on whether any enhancement will produce a significant white presence at JSU, and if so, the extent and more importantly, the form that enhancement must take to be effective in desegregating the institution.
2. ASU
The court is likewise convinced that ASU's limited role in the land grant arena is directly traceable to prior state-mandated segregation. The court finds that the operation of two racially identifiable land grant institutions might continue to have some segregative effects that would be minuscule because of the small number of students now majoring in agriculture.
The evidence preponderates toward the conclusion that dividing the roles within the extension arena between two universities rather than as it is currently conducted is not an educationally sound alternative to remedying this state of affairs.
CONCLUSION: MISSIONS
A. JSU
The court finds Dr. Conrad's effort commendable but cannot order program transfer and/or elimination based on the record before the court which, as the witness agreed, provides inadequate evidence on which to base such action.[329] The court agrees in part with the plaintiffs' contentions as they concern JSU's lack of professional programs, typically, the types of programs that promise the greatest degree of desegregation, e.g., pharmacy, law, engineering.
The court also finds, however, that the feasibility[330] and educational soundness of program transfer to the degree urged by Dr. Conrad, as well as the requested medical school affiliation with JSU, are not apparent *1485 on the record. While programmatic enhancement through transfer could possibly solve the prestige problems faced by JSU, the same cannot be ordered as an educationally sound step toward increasing that prestige. The court agrees that the endowment for JSU proposed in the amount of $5 million and the funds proposed to be set aside to purchase adjoining land are sound steps toward correcting JSU's image and will so order those steps implemented. In order to increase other-race presence at JSU, the court will require the Board to take steps toward developing strong articulation agreements between JSU and surrounding community colleges within its service area. These steps should insure some alteration in the percentage of students enrolled in upper division courses, thereby creating the potential of increasing its funding under the formula.
In terms of the dearth of professional programs at JSU, the court finds that, to some degree, the lack of such programs does obstruct potential other-race enrollment at the main campus. The Board's position that no qualified blacks are excluded from any professional program in the state today misses the point entirely inasmuch as the issue is the dearth of professional programs potentially attractive to academically prepared whites at the HBIs rather than the existence of race-neutral admissions standards. The court finds persuasive the defendants' position that other-race participation in the medical profession is more a matter of the admissions requirements in place at the medical school rather than its affiliation with a particular university. The evidence fails to establish how institutional affiliation with UMMC will increase diversity at JSU or within the medical profession as a whole. Especially persuasive on this point is Dr. Lyons' testimony that JSU does not see the need for that affiliation.[331]
The court has heard some evidence pertaining to UM's Law School and the problems experienced by the school in recruiting and/or retaining black students. Law, like medicine, is a high demand profession and currently, there is no public law school in the Jackson area, the center of state government and where approximately 50% of the state's attorneys practice or reside. As part of its proposal to enhance JSU, the Board proposed to the court that JSU should have a law school "if the need exists," and that "a study will be made." The court is not advised by this record if the Board's proposal for a law school to be located at JSU is contingent on a "need" for two state law schools or a need for the one state law school to be located in Jackson as part of JSU in order to help carry out the Board's planned enhancement.
The Board shall make a study addressing both possibilities and present its results to the Monitoring Committee. All the preceding considerations pertaining to law schools are also applicable to the professional five-year program of pharmacy, and perhaps more so, since all pharmacy students must spend at least a school year, or a substantial part thereof, in Jackson at the UM medical school. The same study and report made on the law school should be made as to the pharmacy school.
JSU remains deficient in terms of the breadth of its doctoral offerings. In part, because of the program review process, it is apparent to the court that, without intervention, JSU will remain an "urban institution" in name only.[332] The Commissioner of Higher Education identified several programs under consideration for implementation at JSU. The Board proposes: (1) selected programs in allied health; (2) a doctorate in business *1486 (DBA); (3) a doctorate in social work; and (4) a doctorate in urban planning.[333] According to the commissioner, these programs promise to add some degree of uniqueness to JSU. The court will require an institutional study to be conducted by the Board to determine where the programs slated for addition at JSU will be provided to ensure a reasonable degree of desegregation at both its main campus as well as throughout the university. The study will also address the need for any additional programs at JSU to enhance the potential for diversity.
B. ASU
The court has already addressed ASU's mission in the land grant area. As to the proposed funding for the small farm development center and the proposed endowment, the court finds that these steps promise realistically to solve ASU's other-race presence problems and is otherwise educationally sound. ASU's provision of the MBA is likewise an educationally sound step to increasing other-race presence at ASU.
PROGRAM DUPLICATION
The court finds that program duplication between the racially identifiable universities in the Delta, MVSU and DSU, is traceable to the de jure era and continues to have segregative effects. As previously found, students choose to attend a particular university for a variety of reasons, including location, costs of attendance, the admissions requirements and the programs offered. Because of the proximity of these institutions (approximately 35 miles apart) and the similar scope of their missions, (liberal arts undergraduate institutions) location, costs and program offerings would not appear to have a significant impact on student choice. Rather, lower admissions standards at MVSU appear more likely to attract black students of the Delta region, since as a class black students score lower on the standardized tests used for admission to universities. In light of differing admissions standards, it is clear that program duplication between these two universities does foster segregation. The Board's consolidation proposal eliminates this duplication.
In considering the issue of program duplication between non-proximate institutions institutions more than fifty miles apart the court finds that it has not been established that program duplication between non-proximate racially identifiable universities significantly fosters segregation. Generally, white place-bound students are more likely to choose a HBI than white students who are not place-bound. Thus, location appears to be a significant consideration if costs of attendance are similar. While academic reputation and prestige of a university likewise play a role in student choice, neither of these factors is a function of the similarity between program offerings. As previously noted, admissions standards play a role in the public's perception of the relative quality of institutions. The consistently lower admissions standards in effect at the HBIs have perpetuated the perception that these institutions are inferior. Accordingly, the likelihood of significant desegregation of HBIs is small and confined to those students who are academically underprepared.
The court finds that students, of either race, most likely to be influenced by programmatic duplication are those with the most choices of what universities to attend. Blacks are now attending the HWIs as a group in statistical parity with their representation in the qualified pool. The court concludes that "unnecessary" duplication as defined by Dr. Conrad has little to do with student choice, absent a difference in the prestige or public image of the HWIs vis-a-vis the HBIs. Any such differences are to a large part a result of the differential admissions standards.
The court finds that the Board's program review process is an educationally sound way of managing duplication in the system. System-wide admissions standards, coupled with the financial and programmatic enhancements of JSU and ASU, realistically promise to obviate or lessen whatever segregative effects are potentially harbored by the duplication between racially identifiable non-proximate institutions.
*1487 NUMBER OF INSTITUTIONS
A. OVERVIEW
In the area of program duplication, the Board essentially contends that while duplicative offerings may be found throughout the system, the most significant degree of duplication that exists is between proximate institutions in the Delta and the northeastern area of the state, namely, the programmatic duplicative offerings between the historically white DSU and the historically black MVSU, and the duplicative offerings between MSU and MUW, both historically white institutions. That duplication, the defendants maintain, has been effectively eliminated through the defendants' merger proposal described below.
B. PROPOSAL: MERGER OF DSU AND MVSU
The Board proposal is as follows: "Six Universities, along with all other administrative units under the Board of Trustees, shall comprise a system of higher education." With regard to the number of institutions in the Mississippi Delta, what this means in detail is the following:
DSU and MVSU can be practicably consolidated, and should be, to create Delta Valley University. Students admitted to and enrolled in DSU or MVSU will be entitled to be enrolled in DVU. To the extent educationally sound and practicable, and recognizing their assignments may change based upon needs, individuals at DSU or MVSU who hold academic tenure may transfer to DVU; in any event tenured faculty of DSU and MVSU will be offered positions within the statewide system. The academic programs of the two predecessor institutions will continue at DVU where appropriate. All administrative positions at DVU will be filled on a competitive basis. The president will be appointed for three years in order to implement a plan of consolidation and set the stage for a permanent president to be selected during the third year.[334]
1. THE DECISION TO MERGE
The duplication between these geographically proximate institutions would be resolved by adopting the six-university proposal. Certain board members testified that the proposed consolidation of the two universities is based on consideration of many options. The Board considered the merger the best solution to the "Delta situation" in addressing the Supreme Court's decision and this court's order on remand. The decision to locate the new institution, DVU, at the existing site of DSU in Cleveland is the result of an analysis of the projected cost relating to the buildings necessary to be constructed.[335]
2. CRITIQUE
(a) Historical Precedent
During the de jure period, consultants questioned whether the State should cease operating the HBIs as independent institutions of higher learning.[336] One recommendation of the Brewton Report of 1954 was the possible consolidation of all three black universities "into the educational systems of the University of Mississippi and Mississippi State College rather than ... operating them as three independent institutions."[337]
(b) Fiscal Responsibility
There is no planned use for the MVSU campus at Itta Bena. The State of Mississippi has a large investment in MVSU and continues to invest in the university. In terms of the amount of money spent for repair and renovation for the period 1981-1994, measured by the amount of dollars per square foot, MVSU has received the most funds of all universities in the system.[338] Moreover, the air-conditioning of residence halls at MVSU was relatively recently approved *1488 by the Board and is presently underway for completion in the Fall. The sum of $3 million is currently available to MVSU for deferred maintenance and/or repairs and renovations.[339]
The amount of savings, if any, to be gained by merger is debatable. According to the defendants, approximately $1.3 million out of the total operating budget of the two universities should be saved by merger. Repair, renovation and capital improvements needs at MVSU are currently estimated at $18,682,800, but repair and renovation needs alone may exceed that figure substantially.[340]
(c) Size and Character of the Merged Institutions
While sharing substantially the same service areas geographically, MVSU and DSU serve vastly different student populations. DSU is currently 77% white and 23% black as opposed to MVSU which is approximately 99.6% black. The average ACT score for entering freshmen at DSU is 19.79 as opposed to 16.52 at MVSU. While 82.4% of DSU students are on financial aid, all of the students at MVSU receive some form of financial aid.[341] Finally, whereas only 8.2% of the freshmen enrolled at DSU are enrolled in some form of developmental studies, 58% of the entering MVSU freshmen are enrolled in developmental studies.[342]
Smaller campuses in general have better retention rates for black students and for students in general. This has been attributed to the closer relationships between faculty and students, as well as closer and more efficient student monitoring; however, MVSU's retention rates remain consistently lower than the retention rates of its peer institutions.[343] It is likely that this disparity is attributable to the academic unpreparedness of the students MVSU accepts, as indicated by their ACT scores.[344] The Board argues that, academically speaking, the merger of MVSU and DSU should provide a much stronger institution of higher learning in the Delta, and that gain can be realized with only a minimal impact on the geographic access for the citizens of the Delta.[345]
C. PROPOSAL: MERGER OF MUW AND MSU
What further desegregation of the Mississippi system of higher education means to the Board in the northeastern portion of the state is the following:
MSU and MUW can be practicably merged, and should be, with MSU as the surviving institution. With appropriate faculty input, MUW's program offerings can readily be provided by MSU. Students admitted to and enrolled at MUW will be entitled to be enrolled in MSU. To the extent educationally sound and practicable, and recognizing their assignments may change based upon needs, individuals at MUW who hold academic tenure may transfer to MSU; in any event tenured faculty of MUW will be offered positions within the statewide system.[346]
1. THE DECISION TO MERGE
The concept of "shared pain" guided the Board when considering and proposing the merger of MUW with MSU.[347] Certain board members testified that the MUW/MSU merger was proposed in response to the Supreme Court's observation relating to the impact the number of institutions the State chose to fund had on student choice.[348]
*1489 2. CRITIQUE
(a) Background
The closure of MUW was first discussed and a plan developed in 1985.[349] As recently reaffirmed by the Board, MUW's articulated mission is simply the provision of quality education with a special emphasis on the education of women.[350]
It is anticipated by the Board that approximately $5.5 million may be saved out of the total annual operating budget by the proposed merger.[351] Other witnesses, including one of the Board's witnesses, testified that there would be very little, if any, savings ultimately realized by the merger.[352] All but a few programs offered at MUW are duplicated at MSU.[353]
(b) Impact on Desegregation
Several statistics brought out at the trial indicate that MUW's current role in the desegregation process is significant. MUW has the second highest percentage of black students of the five HWIs in the state (Fall, 1993). For the entering freshman cohort of 1986, MUW had the highest graduation/retention rate for blacks among the state's public universities, including the HBIs. Evidence presented by both parties, however, does tend to support the Board's proposal to merge. In terms of full professors, MUW has the dubious distinction of being 100% white. African-Americans, however, are present in the lower professorial ranks. Assuming the black students enrolled at MUW attend MSU after closure of MUW, a greater number of black students enrolled at MSU might serve to further diversify MSU by attracting more black students. The merger of the faculties of MSU and MUW would not, however, produce a critical mass in terms of faculty desegregation of MSU,[354] and the merger would actually decrease the percentage of African-Americans students at MSU.
CONCLUSION: NUMBER OF UNIVERSITIES
According to the defendants, the number of institutions the State continues to operate is the only vestige of the de jure past that has continued to have segregative effects to the present time.[355] The defendants contend that the proposed mergers of MUW/MSU and MVSU/DSU will result in a new system where no HWI duplicates the mission of ASU or the new DVU. ASU would alone be the only "less than 5,000 student population university with a primary undergraduate mission." DVU remarkably would have no racial identity. Accordingly, segregative duplication would be eliminated.[356] The court agrees with the defendants' position that the racially identifiable institutions in the Delta continue to foster segregative choice; and, more likely than not, this situation serves to perpetuate the racial identifiability of MVSU. *1490 The question now presented is whether that segregation-fostering duplication may nonetheless be retained as educationally justifiable and without a practicable alternative. To put this question and the MUW/MSU consolidation issue into context, some observations about the Mississippi educational system as a whole need be noted initially.
Mississippi has approximately 915,858 black citizens or 3.12% of the nation's total black population.[357] Nationally, 53% of the students enrolled in the public higher education system are full-time students, but in Mississippi, 77% of the students enrolled in the public system are full-time students.[358] For fiscal year 1992-93, the total amount of financial aid provided to Mississippi students through Pell Grants was $37 million. In that year, 9,076 white students in the system received Pell Grants as compared with 11,872 black students.[359] Clearly, participation in financial aid programs is higher for blacks as a group than for whites.
In terms of FTE students as a percentage of the population, Mississippi is supporting more than the normal higher education load, where the "load on the system" is expressed as the number of FTE students per 1000 population.[360] For every million persons in the state, there are 3.44 public four-year institutions. This amount is higher than the average number of institutions per million persons in either this region of the country or nationally.[361]
As a general matter, participation rates for African-Americans lag behind those for whites in Mississippi's system of higher education. This is also a national phenomenon. Black participation rates in higher education alone, however, are no indicia of whether a system of six as opposed to eight universities is educationally sound in the absence of evidence that any university in the system is turning qualified students away because of lack of space.
The court finds that the most segregative aspect of the State system of higher education is the maintenance of eight universities with differential admissions standards between the HWIs and HBIs, thereby maintaining the racial identifiability of the universities. The court finds little or no desegregative impact on the system at large to be gained by the proposed merging of MUW with MSU. The Board's theory of "sharing the pain" while commendable as evidence of sensitivity on the Board's part, is an inadequate justification for so drastic a measure with practically nothing to be gained relative to the ends of desegregation. Although there would likely be some savings realized by the State by the proposed merger, the issues involved in this cause concern desegregation and equal access to the higher education system regardless of race, and the court is not going to attempt to reorganize the State's system of higher education based on economic considerations not pertaining to constitutional issues. That is better left to the political and policy-making institutions of the state the IHL Board and the legislature.[362] Because the elimination of MUW would not serve any useful purpose in desegregating the higher education system, as testified to by the plaintiff parties' witnesses and some of the defendants' witnesses, the court rejects this remedial proposal in its entirety. By this finding, the court does not enjoin the State from merging MUW if it so determines that for fiscal or other reasons it should be done. That is a decision to be made by the policy-making part of state government.[363] The court is merely holding *1491 hereby that the merger of MUW and MSU is not constitutionally mandated.
The court, however, agrees that the existence of the proximate racially identifiable universities in the Delta, each of which has similar programmatic scope but dissimilar admissions standards, tends to shape student choice by race and thereby perpetuates segregation. On the record, however, the court cannot find that institutional enhancement of MVSU will eliminate the vestiges of segregation that have contributed to MVSU's status as essentially a one-race institution. Evidence does not persuade the court that merely adding programs and increasing budgets will desegregate a HBI. That is not to say, however, that changes made over time at the university consistent with its mission as a baccalaureate institution cannot promote diversity at the campus. The court cannot find that institutional or programmatic enhancement of MVSU is justified as educationally sound for desegregation purposes based on this record.
Nor is it clear to the court that the maintenance of eight universities by the State of Mississippi is educationally unjustified. While the Board opted not to consider altering the programmatic makeup of the two institutions, and there is evidence to suggest that transferring programs to MVSU may not be educationally sound, there is likewise evidence that measures can be taken which, over time, offer a potential of desegregating MVSU. As one of the State's own witnesses testified, evidence suggests that HBIs in other formally de jure segregated states have been successful in integrating their student bodies through a variety of approaches and measures.[364] Evaluation of the success or failure of such measures takes time.[365]
Evidence also suggests that as an institution with a baccalaureate mission and enrollment below 2500 students, MVSU is not an "inefficient" institution where efficiency is measured in terms of achieving higher education for educationally under-served blacks at the lowest possible cost. MVSU consistently has a high percentage of its entering class enrolled in developmental education.[366] Because of the institution's location in one of the poorest regions in the country, MVSU has a high density of academically underprepared blacks within its service area. Because of this historic fact, MVSU has developed a strong commitment to serving students from socioeconomic backgrounds which, in the main, are vastly different from those of the clientele of the other public institutions of higher learning in the state, including its neighbor DSU.[367]
One probable result of MVSU's commitment to serving its present constituency is its poor retention rate relative to the other universities. As noted earlier, of the first-time entering freshman class of 1985-86, DSU's graduation/retention rate for black and white students combined is 45%. The comparable MVSU retention rate is only 24%.[368] Because of the multiple educational deficiencies of its traditional clientele, it is difficult to conclude from this data, however, that the institution is ineffective in performing its mission as an institution of higher learning. Over a seven-year period (1986-1993) MVSU has produced more black baccalaureates than DSU, MUW and UM combined.[369] While certainly a function of its predominant racial composition, the number of blacks completing higher education at MVSU is significant in and of itself as to whether the university's continuance is educationally sound. The position of many educators the court has heard from, including some of the State's witnesses, is that consolidation of the two universities in the Delta would be a mistake for a variety of *1492 reasons.[370] Juxtaposed to that testimony is the testimony of those educators who believe consolidation would be successful in achieving desegregation without eroding access to quality education in this region of the state.
The court finds that the Board's proposal for merger of DSU and MVSU is predicated to a large degree on optimistic speculation that a new university, fully integrated and without any racial identity, will "likely result." The court further finds that the Board's proposal is unsupported at this time by sufficient research to determine whether it is practical to merge these institutions.[371] The court heard testimony that while the State allocates only approximately $7 million per year to MVSU's budget, the institution has an annual overall budget of more than $25 million. This institution is able to serve approximately 2,000 students on only $7 million of state-appropriated funds while generating from outside sources grants from foundations, etc. more than two-and-one-half times its state allocation. No other state institution can make that statement. There is a lack of empirical evidence to suggest the educational and/or fiscal soundness of several factors involved in the proposed merger. Abandonment of the physical plant at Itta Bena is a major consideration. MVSU has the largest percentage of its students residing in dormitories of any of the eight institutions. As this opinion is being written, there is a multi-million dollar building program underway on the Itta Bena campus, approved by the Board, including air-conditioning and building expansion, at a cost of more than $6 million. Simultaneous with these expenditures being made by the State, the Board seeks court approval of its proposal to close down the campus. New academic programs have been instituted at MVSU, even after the trial of this cause and during the pendency of this court's ruling.
Determination of whether the enhancements and additions to the physical plant at the Cleveland campus, proposed by the Board, will suffice to absorb the projected enrollments is a serious question. DSU's dorms are currently near capacity. The two new dorms at DSU, with construction costs estimated in the amount of $6 million each, proposed to accommodate MVSU's students appear inadequate for the number of students currently in MVSU's dorms. Whether less drastic measures are warranted, such as subsidizing other-race scholarships at Itta Bena, a tool which has been employed by the HWIs for many years with some measure of success, should be considered. Perhaps most significantly, a determination of whether the Board's proposed new admissions standards would lessen or negate the segregative effects of the two proximate racially identifiable universities should also be studied. Also significant is that the proposal likewise closes DSU, one of the most integrated institutions in the system. The loss that may result from an administrative and programmatic shakeup in the event of consolidation is difficult to predict. The cumulative institutional knowledge that has made DSU a relative success story in terms of educating both races and has made MVSU a significant nurturer of underprepared blacks is susceptible to being lost under the proposal.
Although the Board is to be commended for its good faith proposal in responding to the Supreme Court's opinion in this cause, the court must reject this part of the Board's proposal at this time and will direct the Board to explore these areas more thoroughly to determine what measures have had success in other systems of higher education, if any, which also have a reasonable chance of success in desegregating MVSU. If in good faith the Board reaches the same conclusion that consolidation is the only educationally feasible solution, it shall substantiate that conclusion to the Monitoring Committee with data necessary for the court to make an informed decision as to its educational soundness. The study outlined above shall be presented to the Monitoring Committee within the time specified in the remedial decree.
*1493 CONCLUSIONS OF LAW
The court has jurisdiction over this action pursuant to 42 U.S.C. § 2000d-1 and 28 U.S.C. § 1345. Private plaintiffs' claims are based on the Thirteenth and Fourteenth Amendments, 42 U.S.C. §§ 1981, 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d. The claims of the United States are based on the Fourteenth Amendment and Sections 601 and 602 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d and 2000d-1. "As recipients of federal financial assistance, the State of Mississippi and its agents exercising management and control of public colleges and universities are prohibited from discrimination against any individual on the basis of race, color or national origin." Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Ayers v. Allain, 674 F.Supp. at 1551 n. 6. Title VI prohibits discrimination which is violative of the Equal Protection Clause of the Fourteenth Amendment. Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).
"The defendants do not dispute that Mississippi law forbade interracial education at the University of Mississippi up to the time of the decision in Meredith v. Fair, 305 F.2d 343 (5th Cir.1962). Defendants' racially segregative policies at that time encompassed the areas of: (1) student enrollment, (2) maintenance of branch centers by the historically white universities in close proximity to the historically black universities, (3) employment of faculty and staff, (4) provision and condition of facilities, (5) allocation of financial resources, (6) academic program offerings, and (7) racial composition of the governing board and its staff." Ayers, 674 F.Supp. at 1551.
The legal standards germane to this cause on remand, unlike the 1987 litigation, are not in dispute. Conclusions of law applicable to the factual findings of the court are set forth throughout this opinion and will not all be restated herein. The legal principles embodied in United States v. Fordice, ___ U.S. ___, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), govern this cause on remand as summarized below.
"If the State perpetuates policies and practices traceable to its prior system that continue to have segregative effects whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system and such policies are without sound educational justification and can be practicably eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system. Such policies run afoul of the Equal Protection Clause, even though the State has abolished the legal requirement that whites and blacks be educated separately and even though it has established racially neutral policies not animated by a discriminatory purpose." United States v. Fordice, ___ U.S. at ___, 112 S.Ct. at 2737. Fordice requires that each challenged policy or practice of the State must be evaluated to determine "whether it is traceable to the prior de jure system, whether it continues to foster segregation, whether it lacks sound educational justification, and whether its elimination is practicable. [It] is the State's burden to show that it has dismantled its prior dual system at the liability stage...." United States v. Louisiana, 9 F.3d 1159, 1164 (5th Cir.1993).
Where the State proves that a challenged policy, shown by plaintiffs to be traceable to segregation, has no segregative effects, it is relieved of its duty to eliminate or modify the challenged policy. Knight v. State of Alabama, 14 F.3d 1534, 1541 (11th Cir.1994). The State likewise has no obligation to modify or eliminate policies and practices traceable to de jure segregation that continue to manifest segregative effects where it is not possible to do so "consistent with sound educational practices." Knight, 14 F.3d at 1541. Because policies and practices traceable to the de jure era are the court's focus, "[t]hat an institution is predominately white or black does not in itself make out a constitutional violation." Fordice, ___ U.S. at ___, 112 S.Ct. at 2743.
The present admissions standards are not only traceable to the de jure system and were originally adopted for a discriminatory purpose but also have present discriminatory effects. Fordice, ___ U.S. at ___, 112 S.Ct. at 2739. Undergraduate admissions requirements *1494 must be modified to eliminate the differential admissions standards between the HBIs and HWIs. The Board's proposal in the admissions area is an educationally sound means of accomplishing that task and is consistent with the mandate issued in this cause.
Program duplication continues to be pervasive in the system, but, as noted previously, not all program duplication is segregative in effect. In terms of program duplication between JSU and other institutions in the system, the court finds that an institutional study encompassing this issue is warranted and will order that such a study be conducted within the time specified in the remedial decree. The court finds that the Board must study program duplication between DSU and MVSU to determine whether any segregative duplication may be eliminated consistent with sound educational practices.
The court finds that the Board's proposed programmatic and financial enhancements of JSU realistically promise to further desegregate that institution and is a step toward increasing its prestige consistent with sound educational practices.
The court is unable at this time to determine whether merger of DSU and MVSU is educationally sound, as noted previously. Accordingly, the Board is directed to further study this issue and, in the event that it determines that the proposed consolidation is the most feasible and sound means of accomplishing desegregation in the Delta, consistent with sound educational practices and practical alternatives, the Board must substantiate that determination to the Monitoring Committee.
REMEDIAL DECREE
It is hereby ORDERED, ADJUDGED AND DECREED, that each of the defendants, their agents, servants, employees, and their successors in office, and all persons in active concert or participation with them, be and they are hereby permanently ENJOINED AND RESTRAINED from maintaining remnants and vestiges of the prior de jure system in the public higher education system in the State of Mississippi and in each public institution of higher education identified as a party defendant herein and their successors. The defendants are also enjoined from engaging in any practice which has the effect of impeding the desegregation of the State's institutions of higher education. To implement this injunction the appropriate parties identified shall take the following action:
1. A Monitoring Committee shall be established to monitor the implementation of the terms and obligations imposed by this decree. The Monitoring Committee shall consist of three disinterested persons with experience in the field of higher education agreed on by the parties and appointed by the court. The parties shall submit to the court by May 1, 1995 the names of the members of the Monitoring Committee as agreed on. If the parties are unable to agree on the composition of the committee, the court will name the members of the committee. The committee shall be responsible for reviewing and analyzing submissions by the defendants and making recommendations to the court. The committee members shall be compensated for reasonable fees and expenses incurred for its work on a per diem basis.
ADMISSIONS
2. The 1995 admissions standards as proposed by the Board for first-time freshmen, effective for the academic year 1995-96, shall be implemented at all universities.
MISSIONS
3. Effective the 1996-1997 academic year, as proposed by the Board, selected programs in the field of allied health, which are nonduplicative of those offered at UMMC or which may be offered on a cooperative basis with UMMC, shall be implemented at JSU. Programs in social work (Ph.D) and urban planning (Masters/Ph.D) shall be implemented at JSU. A doctoral program in business (DBA) shall also be implemented at JSU as proposed by the Board when existing business programs are accredited.
4. The Board shall undertake an on-site institutional study of JSU to determine the relative strengths and weaknesses of its existing programs as soon as is practicable. *1495 This study will be undertaken with the express purpose of determining the nature and direction of those programs slated to be implemented, as well as further programmatic expansion at JSU, to best achieve the urban emphasis of its mission. Included in this study will be an evaluation of the feasibility and educational soundness of establishing an engineering school, a public law school, and a five-year pharmacy program under the direction and control of JSU. The nature and extent of duplication with other institutions in the system will be addressed in this study in the context of determining whether meaningful programmatic uniqueness may be gained which would bring about significant white enrollment through elimination and/or transfer of existing programs at other institutions and the feasibility/educational soundness of such elimination and/or transfer. The results of that study will be presented to the Monitoring Committee by July 1, 1996 for its review and submission of its recommendations to the court.
5. By July 1, 1996, an articulation agreement between JSU and surrounding community colleges will be developed to develop practices promoting racial diversity on the JSU campus; and the Board will take whatever remaining steps are necessary, if any, to vest complete institutional control in JSU over the facility formerly known as the Universities Center in JSU.
6. Beginning as of July 1, 1996, as proposed by the Board and extending over a period of no more than five fiscal years, special funds proposed by the Board for the benefit of JSU's main campus up to an aggregate of $15 million shall be provided by the State earmarked to fund property acquisition, campus entrances, campus security and grounds enhancement.
7. Effective no later than July 1, 1996, the State shall provide special funds of $5 million to be placed in an endowment trust for the benefit of JSU, with the income therefrom to be used to provide funds for continuing educational enhancement and racial diversity, including recruitment of white students and scholarships for white applicants in a number and an amount determined by the court upon recommendation from the Monitoring Committee.
8. Beginning no later than July 1, 1996, the State shall provide special funds for the Small Farm Development Center at ASU to provide annual research and extension funds to match dollar-for-dollar federal funds appropriated to ASU up to an aggregate of $4 million each year.
9. Effective no later than July 1, 1996, the State shall provide special funds of $5 million to be placed in an endowment trust for the benefit of ASU, with the income therefrom to be used to provide funds for continuing educational enhancement and racial diversity, including recruitment of white students and scholarships for white applicants in a number and an amount determined by the court upon recommendation from the Monitoring Committee.
10. Effective no later than the 1996-97 academic year, a MBA program shall be offered at ASU's Natchez Center. The State shall provide special funding for this program addition at ASU including related capital improvement when the Board determines the need thereof.
11. The State shall submit within one year of this remedial decree a report to the Monitoring Committee addressing the practicability of assuming control over the facility maintenance monies now controlled by each of the eight institutions.
12. If, after further study of any available educationally sound alternatives, the Board determines that desegregation in the Mississippi Delta can be attained only through its DSU/MVSU consolidation proposal and that abandoning the financial investment presently in place at the Itta Bena campus and constructing replacement facilities at the Cleveland campus present a practical course of action, it shall substantiate that conclusion no later than July 1, 1996 to the Monitoring Committee. The Monitoring Committee shall review the Board's report and submit its findings and recommendations to the court.
13. The Board shall submit for the Monitoring Committee's review graduate catalogs of all Mississippi IHLs that outline the current *1496 graduate school admissions requirements no later than June 1, 1996.
14. The Board is hereby directed to study the feasibility of establishing system-wide coordination of the community colleges in the State in the areas of admissions standards and articulation procedures, and report to the Monitoring Committee by July 1, 1996.
15. The Board shall have control over and responsibility and accountability for the use and expenditure of all funds provided to comply with the remedial measures outlined herein. The State shall provide the funding for all such measures ordered by this decree.
16. The court retains jurisdiction over this action for the purpose of overseeing the implementation of the terms and objectives of this decree.
APPENDIX
PRIVATE PLAINTIFFS
Private plaintiffs believe the following aspects, features, policies, and practices of the defendants are remnants of the de jure system, and are examples of racial discrimination carried out by the defendants:
A1. The practice, manifested in a variety of ways in the selection process of denying or diluting the representation of black citizens on the governing board.
A2. The practice of denying black citizens nondiscriminatory participation in the governance of the system through the hiring practices for the governing board staff.
A3. The governing board's policy and practice of approving proposed lists of hires submitted to it by the individual universities under which:
(a) there are few, if any, black administrators at the highest levels of the HWIs; and
(b) there are few black administrators at HWIs in general, including their off-campus location.
A4. The governing board's practice of giving few contracts to African-Americans and using few African-Americans as consultants.
A5. The practice of arbitrarily limiting the activities of the administrators of HBIs in a way that impedes their ability to protect the right of their students to receive nondiscriminatory educational opportunities.
A6. The practice of excluding black persons from graduate school councils, faculty councils, and other councils.
B1. The continuing unlawful admission standards operate in connection with other factors (e.g., few black administrators at HWIs, particularly at highest levels; problems with racial climate and curriculum content at HWIs) to direct black students to HBIs. At those schools, defendants' policies and practices concerning program placement, funding, facilities, equipment, and mission, as well as cumulative deficits, continue, in combination, to provide black persons programs of a lesser breadth than are available to white persons (e.g., 83% of white undergraduates in the system attended MSU, UM or USM in 1992-93 with the most expansive programs due to discrimination; the corresponding figure for black undergraduates was 29.3%).
B2. The State has continued its practice of denying black students equal access to the institutions of higher learning because of the entrance requirements established by the Board of Trustees, including the use of ACT test scores in a manner that disproportionately excludes black students from enrollment at historically white universities and relegates those students to the historically black schools.
B3. The policy and practice of minimizing black persons' access to the university system by a variety of actions including, but not limited to, the manner in which ACT scores have been (and are) utilized and funding policies (Amended formulation).
B4. The policy of using ACT cutoff scores in selecting persons to receive particular scholarships at the undergraduate level at each HWI, as well as utilizing alumni connection as a criterion in granting scholarships.
B5. The practice of using material at HWIs which do not inform potential applicants of the test score admission exceptions, or do so in a manner that is not clear.
*1497 B6. The policy of defining the admission exceptions more narrowly at HWIs than HBIs.
B7. The practice of ailing to use the admission exceptions to a substantial degree at HWIs.
B8. The practice of using regular admission requirements which:
(a) the majority of black high school graduates cannot satisfy due to inadequate course offerings, equipment, and personnel in their local school districts; and/or
(b) the majority of black high school graduates cannot satisfy due to educational disadvantage based on a lack of access to college preparatory work of sufficient quality in their local districts.
B9. The policy of using test score cut-offs in admitting persons to certain undergraduate programs on a regular admission basis.
B10. The policy/practice of using test score cut-offs in admitting persons to graduate programs on a regular admission basis.
B11. The practice of failing to provide programs to help students and staff cope effectively with racial diversity.
B12. The practice of not providing a welcoming climate for black students at HWIs.
B13. The practice of operating universities without academic and other programming appropriate for a university anticipating the attraction of a diverse student population.
B14. The minimal enrollment of African-American persons in professional programs is, at a minimum, a concomitant of the other policies/practices set forth in this subpart, as well as the policies/practices described in subpart C.
C1. The policy and practice of continuing to use the 1981 mission statement.
C2. The policy and practice of providing greater funding per student to historically white universities than to the historically black universities that effectively eliminates the black universities as viable choices for attendance by white students, and adversely affects the educations of the students at the HBIs.
C3. The policy and practice of using a funding formula under which level of funding turns upon factors shaped by racial discrimination.
C4. The policy and practice of using a funding formula which does not provide additional funds to either any university admitting large numbers of students from lower income families who need financial assistance or any university admitting concentrations of students needing programs of academic/social support.
C5. The policy and practice of providing special line item funding disproportionately to the HWIs with the result that the HBIs are further disadvantaged in their ability to compete for white students, and the educations of their students are adversely affected.
C6. The policy and practice of maintaining a total funding structure (including athletic and other sources of revenue) which perpetuates segregation and the denial of equal educational opportunity.
C7. The practice of failing to take the necessary steps (including the provisions of required facilities) to secure the accreditation of programs at the HBIs.
C8. The policy and practice of maintaining an allocation of baccalaureate degree programs which is unfavorable to the HBIs and their students.
C9. The policy and practice of maintaining an allocation of masters degree programs which is unfavorable to the HBIs and their students.
C10. The policy and practice of maintaining an allocation of doctoral degree programs which is unfavorable to the HBIs and their students.
C11. The policy and practice of maintaining a distribution of professional programs (and their governance) which is unfavorable with regard to both access of black citizens to these programs, and the status of resources of the HBIs factors affecting their abilities to attract diverse populations and to afford *1498 educational opportunities untainted by discrimination to their students.
C12. The policy and practice of ailing to establish unique attractive program offerings at historically black universities.
C13. The policy and practice of maintaining an allocation of land grant programs between ASU and MSU, which is unfavorable to ASU and its students (includes number and level of programs, number and level of staff, buildings and land available; federal and state funding; research and extension functions; and experimental stations).
C14. The policy and practice of unnecessarily duplicating HBIs' programs and course offerings at HWIs.
C15. The policy and practice of maintaining facilities at the HBIs that are of lesser quality, in an overall sense, than those at the HWIs.
C16. The policy and practice of maintaining a pattern of equipment availability which is unfavorable to HBIs and their students.
C17. The policy and practice of maintaining a pattern of equipment availability which is unfavorable to HBIs and their students.
C18. The policy and practice of maintaining JSU without adequate land.
C19. The policy and practice of maintaining JSU without a football stadium controlled by JSU (adversely affecting JSU's ability to self-generate funds and its overall status as a university).
C20. The policy and practice of operating "off-campus" offerings at HWIs, in close proximity to HBIs, competing with HBIs for students, as well as utilizing facilities and other resources, including the Universities Center at Jackson competing with JSU.
C21. The policy and practice of operating historically white junior colleges, in part with funding approved by the defendant governor, which compete with HBIs for students, including the operation of Hinds Community College at several locations in Jackson competing with JSU, as well as, at a minimum, Mississippi Delta Community College, Holmes Community College, and CopiahLincoln Community College.
C22. Fostering in every way the concept that HBIs are not for white students.
D1. The policy and practice of the governing board, of ratifying employment recommendations of individual universities which perpetuate the racial identifiability of those universities as well as the recommendations themselves.
D2. The HWIs' practices of granting full professorship and tenure status to few African-American persons.
D3. The policy and practice of paying lower salaries to the faculty at the HBIs than to the faculty at the HWIs.
D4. The small numbers of black faculty at HWIs, a feature or aspect of the system, is traceable in part to the de jure system, namely, defendants' offering only a few graduate programs at HBIs in the period through the present. This reduced the pool of black persons who could gain the credentials needed for teaching positions, a consequence still haunting the system.
* * * * * *
UNITED STATES
1. Whether the defendants have at any time since October, 1962 maintained a racially dual system of public higher education in the State of Mississippi.
2. Whether vestiges of the State operated racially dual system of public higher education remain in the State of Mississippi, particularly with respect to:
(a) student enrollment (at all levels);
(b) faculty and administrative staff employment and employment related issues;
(c) composition of Board of Trustees governing board and administrative staffs;
(d) development and implementation of institutional missions and scopes;
(e) development and implementation of academic programs;
(f) allocation of land grant functions;
(g) construction and maintenance of physical facilities;
(h) allocation of state appropriations.
*1499 3. Whether the post-Brown admissions policy has failed to eliminate the effects of segregation among public institutions of higher education in Mississippi.
4. Whether the defendants' policies and practices regarding the use of the ACT Assessment in determining undergraduate admission were for the purposes of limiting black student access to the historically white institutions.
5. Whether implementation of the defendants' policies and practices regarding the ACT Assessment in determining undergraduate admission have had the effect of limiting black student access to historically white institutions of higher learning.
6. Whether the defendants have failed to utilize other readily available, equally valid, and less racially exclusionary alternatives in the undergraduate admissions/selection decision-making process, and whether they would have done so but for racial reasons: alternatives such as those recommended by the American College Testing Program and most of the professional associations that have considered the use of standardized tests in the admission/selection decision-making process.
7. Whether defendants' employment and employment related policies and practices perpetuate segregation by resulting in racially identifiable faculty and administrators at Mississippi public institutions, and in race-based differences in faculty rank, tenure, and salary.
8. Whether Alcorn State University has been limited in its role in the State of Mississippi's land grant program, due to its racial heritage and the racial identity of its enrollment and administration, in the allocation of programmatic offerings, physical facilities and funding resources (federal, state and local) in a manner that decreases its attractiveness to other race students.
9. Whether the State of Mississippi has allocated resources to the traditionally black institutions of a kind and degree sufficient to give them a realistic opportunity to attract white students.
10. Whether the defendants have since 1954 engaged in any actions which have had the intent and effect of impeding the process of disestablishing the State operated racially dual system of public higher education and its effects in Mississippi, including, inter alia, the establishment and implementation of racially discriminatory admissions criteria at public universities.
11. Whether the defendants have since 1954 engaged in any actions which have had the effect of increasing or perpetuating racial separation among Mississippi public institutions of higher education, including, inter alia, the maintenance and operation of traditionally white institutions, or branches thereof, in close proximity to traditionally black institutions.
12. Whether the defendants have perpetuated segregation in Mississippi's public institutions of higher education by deterring other-race enrollment in traditionally black public universities through the assignment of institutional missions and scopes, the placement of academic programs, the construction and maintenance of physical facilities, and the allocation of state appropriations.
13. Whether the document entitled "Modifications to the Plan of Compliance to Title VI of the Civil Rights Act of 1964," dated May 28, 1974, as supplemented by letter dated June 14, 1974, as implemented, has removed state-imposed barriers to desegregation in higher education in Mississippi.
14. Whether the defendants are required to develop, submit to this court, and implement a plan of desegregation which promises realistically and promptly to eliminate remnants of the state-operated racially dual system of public higher education and its effects in Mississippi.
A. Failure to Address the Remediation of the Dual System
15. The policy and practice of failing to adopt a constitutionally acceptable plan which eliminates all aspects of the racially dual system of higher education once mandated by State law.
16. The policy and practice of Mississippi officials never having done a real assessment *1500 of the needs and deficiencies of the separate and unequal historically black institutions and addressing the results of such an assessment.
B. Policies and/or Practices Concerning the Governance of the System
17. The State has continued its policy and practice of excluding black persons from equitable representation on the Board of Trustees, from employment as board administrators and staff, and from enjoying full participation in the activities of the Board. Specially included in this are the following:
18. The practice, manifested in a variety of ways, of denying or diluting the representation of black citizens on the governing board.
19. The practice of denying black citizens non-discriminatory participation in the governance of the system through the hiring pattern for the governing board staff.
20. The governing board's policy and practice of approving proposed lists of hires submitted to it by the individual universities under which:
(a) there are few, if any, black administrators at the highest levels of the HWIs;
(b) there are few black administrators at HWIs in general, including at their off-campus locations.
21. The governing board's practice of giving few contracts to African-Americans and using few African-Americans as consultants.
22. The practice of arbitrarily limiting the activities of the administrators of HBIs in a way that impedes their ability to protect the right of their students to receive nondiscriminatory educational opportunities.
C. Policies and/or Practices Concerning Admissions and Student Access
23. The policy and practice, manifested through the years in a variety of ways, of minimizing the participation of black persons in the system of higher education (at all levels), with the consequence that there are 30-40 thousand fewer black Mississippians in higher education than there would be absent discrimination.
24. The State has continued its practice of denying black students equal access to the institutions of higher learning because of the entrance requirements established by the Board of Trustees, including the use of the ACT test scores, in a manner that disproportionately excludes black students from enrollment at historically white universities and relegates those students to the historically black schools.
25. The practice of using the ACT in selecting persons to receive scholarships at the undergraduate level.
26. The practice of using materials which do not inform potential applicants of the test score admission exceptions, or do so in a manner that is not clear.
27. The practice of using admission requirements that disproportionate numbers of black persons cannot satisfy due to inadequate course offerings, equipment and personnel in their local school districts.
28. The practice of using test score cut-offs in admitting persons to graduate and professional programs, on a regular admission basis, with the result that blacks are disproportionately excluded from these programs.
29. The practice of ailing to provide training programs to help staff and students cope effectively with racial diversity.
30. The practice of operating universities without academic and other programming appropriate for a university anticipating the attraction of a diverse student population.
31. The policy and practice of failing to administer the Junior Community College system (including coordination between the Junior Community College system and the four-year IHL system) to improve, and remove barriers to, black student access to baccalaureate education.
D. Policies and Practices Bearing Upon the Ability of the Historically Black Institutions to Attract Diverse Student Populations
Mission Statement
*1501 32. The policy and practice of continuing to use the 1981 mission statement.
33. The policy and practice of operating only historically white institutions as major comprehensive institutions and historically black institutions as undeveloped institutions.
Funding
34. The policy and practice of operating the historically black institutions as inferior entities with less financial and other resources.
35. The policy and practice of providing greater funding per student to historically white universities than to the historically black universities which effectively eliminates the black universities as viable choices for attendance by white students.
36. The policy and practice of using a funding formula under which the level of funding turns upon factors shaped by racial discrimination (e.g., the mission statements and limited curricular offerings).
37. The policy and practice of using a funding formula which does not provide additional funds to either any university admitting large numbers of students from lower income families who need financial assistance, or any university admitting concentrations of students needing programs of academic/social support.
38. The policy and practice of providing special line item funding disproportionately to the HWIs with the result that the HBIs are further disadvantaged in their ability to compete for white students.
39. The policy and practice of maintaining a funding formula and a total funding structure (including athletic and other sources of revenue) which perpetuate the inequalities of the statutory dual system.
Academic Programs
40. The practice of failing to take the necessary steps (including the provision of required facilities) to secure the accreditation of programs at the HBIs.
41. The policy and practice of maintaining an allocation of baccalaureate degree programs which is unfavorable to the HBIs.
42. The policy and practice of maintaining an allocation of masters degree programs which is unfavorable to the HBIs.
43. The policy and practice of maintaining an allocation of doctoral degree programs which is unfavorable to the HBIs. These program allocation policies at the three levels of educational achievement have had the predictable result of artificially reducing the available pool of "qualified" black potential professorial candidates.
44. The policy and practice of maintaining a distribution of professional programs (and their governance) which is unfavorable to the HBIs.
45. The policy and practice of failing to establish unique attractive program offerings at historically black universities.
Academic Programs Land Grant
46. The policy and practice of maintaining an allocation of land grant programs between ASU and MSU, which is unfavorable to ASU (this includes number and level of programs; number and level of staff, buildings and land available; federal and state funding; research and extension functions; and experimental stations). Subsumed under this are the following discrete elements:
(a) The policy and practice of having created and continuing to maintain ASU as a severely limited participant in the State's land grant structure;
(b) The policy and practice of maintaining limited land grant curricula offerings (resident instruction) at ASU compared to that offered at MSU, continuing the practice of the historic dual system with ASU having an inferior mission, number and level of academic programs with limited funding and facilities;
(c) The continuing policy and practice of providing limited or no state funding to ASU for land grant research and facilities for research as a result of decisions made by the State under the statutory dual system;
(d) The policy and practice of the State continuing to fail to designate ASU as a recipient of a share of the Hatch Act funds;
*1502 (e) The policy and practice of continuing to consign ASU's land grant research functions to the ultimate administration of MAFES, an entity of MSU;
(f) The policy and practice of continuing to relegate ASU to a more limited role in the State's land grant extension program as a result of ASU's status under the statutory dual system;
(g) The continuing policy and practice of providing limited or no state funding to ASU for land grant extension functions and facilities for extension as a result of decisions made by the State under the statutory dual system;
(h) The policy and practice of the State continuing to fail to designate ASU as a recipient of a share of Smith-Lever funds;
(i) The policy and practice of continuing to consign ASU's land grant extension functions to the ultimate administration of MCES, an entity of MSU.
Academic Programs Unnecessary Duplication
47. The policy and practice of unnecessarily duplicating HBIs' programs and course offerings at HWIs.
Facilities
48. The policy and practice of maintaining facilities at the HBIs that are of lesser quality, in an overall sense, than those at the HWIs.
49. The policy and practice of maintaining libraries at the HBIs that are inferior to the libraries at the HWIs.
50. The policy and practice of maintaining a pattern of equipment availability (especially including the super computer) which is unfavorable to HBIs.
51. The policy and practice of maintaining JSU without adequate land.
52. The policy and practice of maintaining JSU without a football stadium controlled by JSU (adversely affecting JSU's ability to self-generate funds and its overall status as a university).
Higher Education in Close Geographic Proximity to the Black Universities
53. The policy and practice of operating "off campus" offerings of HWIs, in close proximity to HBIs, competing with HBIs for students, as well as utilizing facilities and other resources, including the Universities Center at Jackson competing with JSU.
54. The policy and practice of operating historically white junior colleges which compete with HBIs for students, including the operation of Hinds Community College at several locations in Jackson competing with JSU.
Employment
55. The policy and practice of the governing board of (i) ratifying employment recommendations of individual universities which perpetuate the racial identifiability of those universities; and (ii) failing to direct measures to change the basic racial result of the hiring processes of the individual universities which is that, on the whole, whites are hired to teach at predominantly white schools and blacks are hired to teach at predominantly black schools.
56. The policies and practices that govern the hiring processes of the individual universities that, on the whole, result in whites being hired to teach at predominantly black schools.
57. The failure of the Board to adopt and implement steps to eliminate the basic racial identifiability of the individual universities based upon the racial composition of the faculty and administrators of the universities.
58. The HWIs' practices of granting full professorship and tenure status to few African-American persons.
59. The policy and practice of paying lower salaries to the faculty at the HBIs than to the faculty at the HWIs.
Number of Institutions
60. Plaintiffs recognize that the issue of the number of institutions of higher education (senior and community colleges) to be operated is before the court.
Athletic Competition
61. The policy and practice of maintaining athletic competition in conferences whereby it is possible to identify the historic *1503 racial identity of the university by reference to the conferences alone. Thus, the historically black universities compete in a conference where all of the members are historically black schools and the historically white universities compete in conferences composed exclusively of historically white schools.
NOTES
[1] Charles Dickens, Bleak House (Norman Page ed., Penguin Books 1971) (1853).
[2] Ayers v. Allain, 674 F.Supp. 1523, 1526 (N.D.Miss.1987).
[3] Included in this order was a request by the court that each party submit proposed remedies "to resolve the areas of the State's liability pursuant to the Supreme Court mandate." After submissions by all parties were received, it was apparent that substantial disagreement existed as to whether the State's proposed remedies cured the "constitutionally suspect" areas identified by the Supreme Court.
[4] According to the private plaintiffs, this cause is not confined to desegregating the university system of Mississippi. Rather, the private plaintiffs' seek to expand the judicial inquiry to a system-wide examination of policies and practices that discriminate against black students in any manner whether or not such policies also foster separation of the races. It is the theoretical approach to the issues raised in this action that distinguish the private plaintiff's case from that of the United States:
Plaintiffs' case has been characterized as a desegregation case, and it is that. But that is not all it is. The basic wrong at all times has been the State's operation of a public higher education system based on white supremacy. White supremacy produced racial discrimination against black people long before the specific method of segregation was devised and used. For example, white supremacy meant affording white people opportunities denied to black people. Nowadays, the policy and practice of racial discriminating still survives and is more deeply entrenched than simply the method of segregation.
Pretrial Order 4(i).
[5] Pretrial Order at 4(ii). "If any of the aspects, policies, or practices which we name are not traceable, then we nonetheless allege that they are discriminatory in purpose (and thus violate the Fourteenth Amendment) or discriminatory in effect (and thus violate the Title VI regulations)." Pretrial Order at 4(i). The United States simply designates many of the same allegations as "Contested Issues of Fact." Pretrial Order at 9(b).
[6] Private plaintiffs' exhibits are designated as PX; United States' exhibits are designated as USX; Board of Trustees exhibits as BDX; MUW's exhibits as WX.
[7] As of 1987, MUW required a composite score of 18 on the ACT. BDX 234.
[8] Anzalone 5725-26; 5733; BDX 227; 228; 233.
[9] BDX 233-235; PX 16.
[10] Anzalone 5736-43; BDX 233-235; PX 16.
[11] Appendix B1; B2; B3; B8; B9; US24; US27.
[12] Loewen 5156; Anzalone 5809; Hillard 9882.
[13] Allen 4433-4434; Loewen 5167-5170.
[14] USX 015; Allen 4456.
[15] Allen 4456.
[16] Loewen 5196; Anzalone 5831-33; Allen 4453-57; Blake 4043-45; Hendericks 3762.
[17] While no public school district was "on probation" at the time of trial, a number of school districts were in jeopardy of being placed on probation because of the acute shortage of science and math teachers. These shortages required many teachers to teach outside of the particular subject areas for which they were trained. Thompson 1192-93. At present, all public schools in Mississippi offer a College Preparatory Curriculum ("CPC"). BDX 222. To the extent that the quality of the core offered in Mississippi's primary/secondary schools differs by socioeconomic circumstance, the same affects both black and white students to the degree that they are poor. Allen 4560. To the degree that access to the university system is limited by the "quality" of the core offered at the primary/secondary school levels, blacks as a class are disproportionately affected, if at all by this condition, solely on account of the higher percentage of blacks versus whites below the poverty line.
[18] The court will not again recite the history of the defendants' discriminatory application of the ACT cutoff scores as a means to exclude blacks from attendance at the HWIs. The same may be found at Ayers, 674 F.Supp. at 1530-31. See also Anderson 4866-70.
[19] Anzalone 5747.
[20] Allen 4464.
[21] Correlation between the core and improved ACT scores may be seen by comparing the 1989 ACT scores of students taking the core with scores of students without the benefit of the core. Students participating in the core attained a composite mean ACT score of 19.8. Nonparticipating students registered a 17.2 composite mean ACT score. Anzalone 5770; BDX 255.
[22] Pickett 5950. In 1989, 51.3% of all ACT tested students in the state had completed the core curriculum. 48.6% of those tested indicated that they had not. Of the black ACT tested students in 1989, 51.8% indicated that they had completed the core as compared with 48.2% who had not. Anzalone 5770-71; BDX 255. Of the white ACT tested students in 1989, 51.2% indicated that they had completed the core as compared with 48.8% who had not. BDX 255. Participation in the core has gradually increased since 1989 overall. By 1993, the percentage of students taking the core increased to 58.3%. This percentage compares favorably with the rates of participation in the core nationally. Anzalone 5772. Black participation in the core increased to 55.1% by 1993. White participation also increased to 59.5% in that year. BDX 255.
[23] Pickett 5943-44; 5957-64; BDX 203. Components of Project 95 include the following: retraining teachers in the primary/secondary school system as well as restructuring the training teachers now receive at the university level; the creation of a position on the board staff for a minority teacher recruiter; programs designed to increase minority enrollment in higher education such as "College Discovery" and "Career Beginnings," both of which bring high school students to participating college campuses for exposure to college life; financial aid workshops designed to communicate the sources of financial aid to communities throughout the state and to assist families in the financial aid application process.
[24] Appendix B4; US25.
[25] PX 299; PX 320-21; PX 323.
[26] Allen 4569-72.
[27] PX 299 (recipients of DSU's "Presidential scholarship" requires ACT minimum score of 26); PX 298 (MSU, MUW, UM, and USM scholarships based on minimum ACT scores as sole criterion for award).
[28] Allen 4467-68. The poverty rate for black Mississippians exceeds that of white Mississippians. As of the 1990 census, 46.4% of black persons residing in the state were below the poverty line. As of 1992, 77.1% of black undergraduates in the system received federal Pell grants as compared with 28.9% of the white undergraduates. Accordingly, in general, black applicants to Mississippi universities are more likely to need financial aid than white applicants. PX 388; Allen 4568-69.
[29] Appendix B5; B6; B7; US26.
[30] PX 62; PX 63.
[31] Allen 4577; (1987) Meredith 4565-66; (1987) Lucas 3467.
[32] PX 64.
[33] In reviewing the undisturbed findings of fact made by this court, the Supreme Court in connection with this issue found that: "[t]he present admission standards are not only traceable to the de jure system and were originally adopted for a discriminatory purpose, but they also have present discriminatory effects." Fordice, ___ U.S. at ___-___, 112 S.Ct. at 2738-39.
[34] Anderson 4866-69.
[35] Ayers, 674 F.Supp. at 1530-31.
[36] Nor may such an effect on student choice be presumed in light of institutional practices that set aside scholarship monies for blacks that likewise have high ACT cutoff requirements. See Rent 10541 (MUW Heritage Scholarships to black enrollees scoring ACTs of 18, 19 and 20); see also BDX 674 (ASU scholarship for minimum composite ACT score of 22).
[37] BDX 298.
[38] Cf. Wharton 8941-42; BDX 298 with Loewen XXXXX-XXX; PX 525.
[39] Wharton 8949-51; 9188; 10791.
[40] Wharton 9129-31.
[41] Wharton 10797.
[42] Appendix B10; US28.
[43] Anderson 4900; Dingerson 7882.
[44] Test validity refers to the extent to which a given assessment is actually measuring what it is designed to measure and the accuracy thereof. Haney 2903. The most common method of determining an assessment's validity is by studying how well the test or assessment actually predicted performance in the first year of the educational program for which the assessment is designed. Haney 2903-04.
[45] PX 86.
[46] Haney 2899; 2904-05; PX 86.
[47] Haney 2909-18; PX 86; PX 88.
[48] Appendix C12; US33; US45.
[49] Loewen 5073-74.
[50] Loewen 5075-76; 5082-89.
[51] For instance, in 1928-29 less than 1% of the eligible black population was enrolled in high school. By 1940, although approximately one-third of the white population had attended high school, less than 7% of the black population had achieved even this modest goal. Loewen 5086; Blake 4045-47.
[52] Loewen 5095-96.
[53] Anderson 4765; Blake 4045.
[54] This fact may be illuminated by examination of ASU's enrollment in 1907 compared with the enrollment figure for 1940. In 1907, ASU's student's body consisted of only 460 students. By 1940, ASU's enrollment was only 455 students, a net loss of five students at the end of the thirty-three year period despite the fact that only one university was available to the African-American race during this time period. PX 164(n); PX 164(r).
[55] Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
[56] Blake 4025; 4027; Loewen 5096.
[57] (1987) PX 200. (Percentage based on 1950 Census data.)
[58] Appendix C1; US32.
[59] Anderson 4771-72; 4791-92.
[60] See (1987) Meredith 4523-24 (The 1981 Mission Statement in effect "put boundaries around all institutions").
[61] Anderson 4793, 4838; (1987) Meredith 4525.
[62] Appendix C8-C11; D4; US41-US44.
[63] Anderson 4751-54; 4757; 4913.
[64] Anderson 4858-4860; (1987) Meredith 4516-17; Ayers, 674 F.Supp. at 1539.
[65] DSU increased the number of its masters level programs from 1 to 13; MUW from 5 to 14; MSU from 43 to 68; and USM from 30 to 73. (1987) USX 490; USX 1.
[66] Anderson 4762-64; 4956-57.
[67] Those divisions are: the Division of General College of Excellence; the Division of Arts and Sciences; the Division of Business, the Division of Education and Psychology; the Division of Agriculture and Applied Sciences; the Division of Nursing and the Division of Graduate Studies. USX 383; Robinson 788-92.
[68] USX 119; USX 127.
[69] A. Johnson 1043; USX 33AA; Robinson 777-80.
[70] Loewen 5085.
[71] Anderson 4775-76; 4957; Loewen 5091.
[72] Recitation of the programmatic expansion experienced by JSU in this time frame may be found at Ayers, 674 F.Supp. at 1538-39.
[73] USX 119.
[74] Anderson 4957.
[75] (1987) USX 492; USX 127; USX 119.
[76] Appendix B13; C7; US30.
[77] (1987) USX 501; USX 130. See also Conrad 5487.
[78] Anderson 4862; Robinson 743; 791; Whisenton 3352-53.
[79] Appendix C14; US47.
[80] Under Conrad's topology, "core" programs are those "essential to the provision of basic and specialized studies in the liberal arts and sciences. These [programs] have been at the hearts of the university not only since antiquity, but the founding of the Harvard College in 1636 in this country." Conrad 5277.
[81] USX 145; Conrad 5244-45.
[82] Conrad 5253-5260; USX 111; 112.
[83] Conrad 5272; Pickett 6094.
[84] Programs identified as "high demand" are those programs at any degree level in which at least .2% of the nation's graduates receive their degrees.
[85] Conrad 5273; 5297-99; USX 150.
[86] USX 122-126.
[87] Conrad 5290-92; USX 113; USX 119.
[88] Conrad 5292; USX 113; USX 119.
[89] USX 119.
[90] USX 113; USX 119.
[91] Any duplication at the graduate level is not essential or is "unnecessary" under Conrad's topology. Conrad 5282.
[92] Conrad 5282-87; 5304; USX 118.
[93] Pickett 5999-6000; BDX 390.
[94] Pickett 6002-05. See USX 114 for identification of various teacher education programs classified as unnecessarily duplicative by Conrad.
[95] Pickett 5953; 5988-89; BDX 391.
[96] Pickett 6002; 6078.
[97] Appendix C20; US53-US54.
[98] Cleere 8084-88. Commissioner Cleere has characterized all of these programs as "nonduplicative activities." Cleere 8084.
[99] Conrad 5461-63.
[100] Conrad 5459-60.
[101] Conrad 5455.
[102] Conrad 5460.
[103] The traceable antecedents of the mission assignments of the various universities were pointed out by the Fifth Circuit in Ayers, 914 F.2d at 692.
[104] "Plaintiffs recognize that the issue of the number of institutions of higher education (senior and community colleges) to be operated is before the Court." Pretrial Order at p. 34.
[105] Leslie 358 (merger inefficient from financial standpoint); Anderson 4971-72 (merger/closure of a HBI by the State of Mississippi analogous to their dependant status/uncertain future during de jure period); Allen 4554 (merger of HBI will have negative impact on access as well as stigmatic consequences); Loewen 10250 (negative impact on black student access); Conrad 10337 (negative impact on desegregation and equal opportunity).
[106] Garrett 9560; Conrad 10338.
[107] Appendix B3; C2; US34-US35.
[108] United States Contested Issues of Fact at p. 24.
[109] Appendix C3-C4; C6; US36-US37; US39.
[110] Lott 7023; 7030; BDX 274; BDX 275.
[111] Staffing ratios reflect the number of students per faculty member under the formula by discipline and level of study. Leslie 313. The staffing ratios that are currently in use today were approved by the Board in 1987 when the formula was developed. The staffing ratios were compiled from formulas then existing in five states, namely, Virginia, South Carolina, Georgia, Tennessee and Kentucky. Lott 7027; BDX 661.
[112] Lott 7032-34.
[113] Faculty salary levels for use in the formula are derived by consulting a salary survey published by the National Association of State Universities and Land Grant Colleges. The data contained in the survey reflects the current average faculty salaries prevailing in the region per discipline per type of institution, e.g., Doctoral I or Doctoral II institutions. Lott 7028; BDX 276.
[114] Lott 7034-35; BDX 276.
[115] Lott 7036-37.
[116] Lott 7037-38.
[117] Lott 7038-39; BDX 275; 277.
[118] Lott 7039-41; BDX 275.
[119] Intensity of use is adjusted by adding equivalent square footage to campuses with lesser square feet per student such as JSU and USM. Campuses with above average square feet per student, like MUW and MVSU, are compensated at a lesser rate per square foot. An allowance is made for storage square feet and for the presence of historical buildings. Lott 7042.
[120] Lott 7041-42; BDX 275.
[121] Lott 7043-45.
[122] Lott 7021; Cruthers 7375-76. For instance, under the old formula, each institution received a predetermined amount for physical plant based upon its mission grouping. Now, however, funding for physical plant is geared to the amount of a university's square footage. Likewise, student service monies are allocated according to the university's size of enrollment and faculty. Cruthers 7375-76.
[123] Lott 7048-49.
[124] Lott 7059-64.
[125] It is estimated that approximately 37% of the new enrollment in the state by black students are in the IHL system as compared to approximately 26% of first time white enrollment in the four-year system. Wharton 8949.
[126] Sullivan 1232; Cruthers 7448.
[127] Leslie 314-316.
[128] Leslie 318-22. For instance, in FY 1993, USM has the lowest percentage of their actual course work taught at the freshman/sophomore level at approximately 38%. Ranked below USM is MSU and UM with approximately 39% and 47% of their enrollment taught at these levels, respectively. DSU's enrollment more closely approximates that of the white comprehensives at about 46% of its enrollment at these levels. At JSU, 62% of its productivity is at the freshman/sophomore levels. At ASU, MUW and MVSU, approximately 66% of their enrollment is at the lower divisions. Lott 7063; BDX 283.
[129] Lott 7066-67; BDX 277; BDX 284; BDX 286.
[130] Leslie 323; USX 49.
[131] Leslie 324; 326.
[132] Leslie 325; see also BDX 289-93.
[133] Cruthers 7454-55.
[134] Lott 7031; 7053-56.
[135] Appendix C5; US38.
[136] Leslie 328-34; Lott 7167.
[137] Lott 7168; Leslie 301-03; 398.
[138] The General Education Board was established in 1902 for the purpose of furthering the development of education in the South. Southern states contractually obligated to the GEB by virtue of their receipt of funding from the foundation were required to maintain and submit periodic reports to the Board detailing, among other things, their educational budgets, enrollment, population and institutional development in order to justify funding requests and, in general, to keep the Board apprised of their educational efforts. Anderson 4737-38.
[139] Anderson 4901.
[140] Anderson 4908; 4751-52.
[141] Anderson 4752-4754; 4976.
[142] Anderson 4975; Leslie 281-85.
[143] Leslie 426; 287-290; USX 33dd.
[144] Sullivan 2300-01.
[145] United States Contested Issues of Fact No. 2(g).
[146] The Educational Building Corporation is a corporate financing mechanism that provides facilities monies not available otherwise. The corporate entity may borrow money directly or issue its own bonds. Bowman 6595.
[147] Bowman 6594; Kaiser 965.
[148] Bowman 6605-07; 6624; Lee 1517; Curry 6666.
[149] By way of illustration, in 1993 the Board received requests totaling approximately $300 Million. Bowman 6592.
[150] Bowman 6591-93; 6597-98.
[151] Bowman XXXX-XXXX.
[152] (1987) USX 835-36; 1987 BDX 326-330; 344.
[153] (1987) BDX 331-338.
[154] From 1981 through 1993, ASU received approximately $18.00 per square foot in total capital improvements and renovations dollars more than any other university in the system. The system average was approximately $11.00 per square foot for this time period. Curry 6673-74; 6681; BDX 174; USX 101.
[155] Bowman 6614; Curry 6676; BDX 162, 175, 175-A. "E & G" space is that involved in the basic academic program of the institution. It does not include space utilized for housing and student unions. Bowman 6613.
[156] (1987) Kaiser 597-98.
[157] USX 90 (Table 3); Kaiser 973-75.
[158] Kaiser 975-76; USX 90 (Table 4).
[159] Bowman 6619; Curry 6688-89.
[160] Bowman 6619 (no difference in the quality, type and nature of construction); Curry 6688 (same).
[161] Henderson 1409-10; Johnson 1282.
[162] Curry 6690; Kaiser 928; 987; Johnson 1357-59; Bowman 6619; USX 43(a).
[163] Appendix C15; US48.
[164] Kaiser 834-838.
[165] Kaiser 837.
[166] Dober ranked the universities in the system by condition of physical plant using an analysis that identified buildings ranging in conditions from numerous functional problems requiring major repair/renovation to "practically unusable" buildings. (1987) Dober 3890-92; (1987) BDX 304.
[167] Appendix C16; US49.
[168] Kaiser 841.
[169] Anderson 4951-52; Kaiser 840-46; Conrad 5383; USX 131; PX 266.
[170] Bowman 6599; 6624; Kaiser 1031.
[171] Appendix C17; US50.
[172] Anderson 5010-11; Kaiser 849-60; Dingerson 7859.
[173] Appendix C18; US51.
[174] Kaiser 872-73; 944; Bowman 6627-28; Lee 1515-16; Curry 6701; 6721-22.
[175] Appendix C19; US52.
[176] Kaiser 871-72.
[177] Johnson 1271; Curry 6663-64; 6690-91.
[178] Curry 6699 (relatively modest); Kaiser 925 (a significant role).
[179] Loewen 10207-09.
[180] Bowman 6618-19.
[181] See USX 90; Wharton 8984-91; Siskin 8730-32.
[182] See Kaiser 1017-18.
[183] Bowman 6624; 6627; Kaiser 1031.
[184] BDX 509.
[185] United States Contested Issues of Fact No. 7.
[186] Appendix D1; US55-US57.
[187] By institution, the percentage of the total black fulltime faculty was as follows: (1) DSU 3.70%; (2) MSU 3.59%; (3) MUW 1.79%; (4) UM 3.13%; and (5) USM 3.23%. Anderson 4953; Siskin 8680; BDX 134-139.
[188] Siskin 8680-81.
[189] Appendix D3; US59.
[190] Anderson 4954; Feisal 8550; Lott 7050.
[191] For instance, in 1991-92 there was approximately an $8,000.00 difference in the faculty salaries between the HWIs and HBIs or approximately 27%.
[192] For example, by institution, the percent of faculty holding these ranks in 1991-92 are as follows: ASU 62%; DSU 46%; JSU 51%; MSU 33%; MUW 57%; MVSU 62%; UM 42%; USM 39%. The average salary by rank prevailing in the system for this year was as follows: $45,445 Professor; $36,128 Associate Professor; $31,834 Assistant Professor; and $23,089 Instructor. Leslie 342; USX 33(aa).
[193] It is assumed that each institution within the category has 41% of their faculty at the full professor range; 31% at the associate professor rank; 23.2% at the assistant professor rank; and 4.4% at the instructor range.
[194] For instance, ASU, having a lower percentage of its faculty at the full professor rank than that prevailing in the region but a greater percentage of its faculty at the instructor level than that prevailing in the region, is actually funded at a higher average salary rate than it is presently paying. Lott 7119-26; BDX 664.
[195] Appendix D2; US58.
[196] By university for fiscal year 1992, the percentage of faculty holding full professor status was as follows: (a) USM 97% white and 1% black; (b) UM 96% white and .5% black; (c) MUW 100% white and 0% black; (d) DSU 97% white and 1% black. Finally, MSU has 94% of its full professors white as opposed to only 2% black. Clauge 4172-74; USX 76-80.
[197] Clauge 4170-76; USX 73; USX 75-80; Leslie 299; USX 33.
[198] Clauge 4181; 4184.
[199] Clauge 4208; Feisal 8550; see also Ayers, 674 F.Supp. at 1538.
[200] Feisal 8568-69; Allen 4490-91; 4498-99; PX 282; USX 24-30A.
[201] Siskin 8668-77; BDX 134-139; BDX 146-151. Proceeding under the assumption that the HWIs in Mississippi recruit nationally, Siskin's conclusion that the HWIs' minority hiring exceeded what would be expected based on the qualified labor pool, was arrived by comparison of all hirings by HWIs since 1986 by discipline and degree attainment with percentage of black degrees conferred in 1988-89 nationally. BDX 151.
[202] Clauge 4225-33; USX 82-85; USX 87-88.
[203] BDX 200 at p. 50.
[204] Clauge 4291-92. Factors that influence black faculty in their choice of universities include: (1) the working conditions or the perceived quality of the work place; (2) a preference that the career match the mission of the institution; (3) a commitment to work with black students; (4) the perceived sincerity in recruitment efforts at HBIs; (5) the length of the probationary period; (6) tenure prospects; and (7) salary. Feisal 8537-38; BDX 199.
[205] Clauge 4273-75; 4291-92; Siskin 8780-82; Feisal 8540-41.
[206] Feisal 8540-45.
[207] Feisal 8546-48.
[208] Institutional measures prevailing in 1987 are detailed at Ayers, 674 F.Supp. at 1537.
[209] Wyatt XXXXX-XXX; BDX 14.
[210] Currently, MSU now makes available $1,000,000 for promoting the employment of black faculty. Zacharias 8438-39.
[211] Feisal 8560-61; Zacharias 8438-39; BDX 30.
[212] Rent 10555.
[213] Turner 6383-85; Hoops 6742-43; BDX 55; BDX 68.
[214] ___ U.S. at ___, 112 S.Ct. at 2742. In this context, the presence of three public HBIs, one of which is a doctorate-granting institution, appears likely to contribute to the continued racial identifiability of Mississippi HWIs at the administrative/tenured faculty ranks.
[215] Appendix C13; US46(a-i).
[216] United States Contested Issues of Fact No. 8.
[217] (1987) Seals 717-19; Seals 2329; Foil 6924.
[218] (1987) Seals 717; Foil 6925.
[219] (1987) Seals 718.
[220] Foil 6925; (1987) Seals 718; Seals 2331; Anderson 4950-51.
[221] Alternatively, the Brewton Report went on to conclude, "[i]f the State chooses to operate two land grant institutions, this function should be transferred from Alcorn to Itta Bena (including staff and equipment) creating thereby an entirely new institution. The present Alcorn plant would then be transformed into a community college, operated similar to the one proposed for Itta Bena." (1987) PX 200.
[222] Foil 6856; 6910-20; Acker 6959-60; Seals 2342-2352; BDX 306.
[223] (1987) Seals 725-26; 737; Seals 2355; Foil 6872.
[224] Foil 6864-65; (1987) Foil 3065-66.
[225] (1987) Seals 729; Seals 2339-40; 2348.
[226] Foil 6872-76; Acker 6957-58.
[227] Acker 6955-57; Foil 6877-78.
[228] Foil 6880-81; 6899-6903; Seals 2341; (1987) Seals 733; BDX 308-09.
[229] Acker 6962-63; Foil 6889-90.
[230] Notwithstanding defendants' distinction that centrality of the administration of land grant funds is not traceable.
[231] Foil 6877; 6888-89; Acker 6955-63.
[232] Appendix B11-B12; C22; US29.
[233] Allen 4368-70; 4382; 4612-13.
[234] Allen 4378-82; 4418-21.
[235] Allen 4388; USX 372.
[236] Turner 6416.
[237] Turner 6414-16; Williams 2015; 2103-04.
[238] PX 444; Hanshaw 1773.
[239] Williams 2016-22; 2115-17; Hanshaw 1766-74; 1780; Turner 6502; PX 444.
[240] Williams 2101-05; Turner 6382-91; Dingerson 7847-48.
[241] Dingerson 7849-55; BDX 51; BDX 466.
[242] Allen 4388; USX 372.
[243] BDX 30; Person 9320-22.
[244] Person 9323; Zacharias 8435-37; BDX 366.
[245] Allen 4388; USX 372.
[246] Vanaller 9383-84.
[247] Vanaller 9384-85; Wesley 9396.
[248] Wyatt 10705.
[249] Cruthers 7431; Wyatt XXXXX-XXX.
[250] Wyatt 10704-07; BDX 14.
[251] Rent 10537-41; BDX 37.
[252] Allen 4388-89; 4398-99; USX 372. Enrollment figures for 1990 by institution reveal the following: ASU 94% black; JSU 92% black; MVSU 99.5% black. By comparison, for 1990 the HWIs' white enrollments were as follows: DSU 78%; MSU 82%; MUW 81%; UM 85%; USM 84%. Allen 4511; USX 22(a).
[253] Broken out by university for the entering 1985-86 cohort, the following percentages represent the retention rate by race over the five-year period: ASU 27.2% black/62.5% white; JSU 27.3% black/11.1% white; MVSU 24.1% black; MSU 37.3% black/52.4% white; UM 42.1% black/48.8% white; USM 39.7% black/40.3% white; DSU 34.7% black/47.3% white; MUW 40% black/41.5% white. Allen 4375-77; 4444-45; USX 014.
[254] Allen 4424-25.
[255] See Ayers, 674 F.Supp. at 1558.
[256] (1987) Siskin 4219; (1987) BDX 192-3; Siskin 8693-97; BDX 133.
[257] Loewen XXXXX-XXX.
[258] By way of illustration, only .1% of the white ACT test takers that indicated a Mississippi public institution of higher learning as a first preference for attendance indicated a predominantly black senior college in the state (15 out of 15,663 respondents). As to the total white test takers indicating any preference (other than first choice) for a predominately black senior college, only .43% so indicated a preference (69 out of 15,663). That percentage raises slightly when adding those whites which indicated some preference for any predominately black school, senior or junior college (204 out of 15,663). Siskin 8700-01; BDX 120.
[259] Loewen XXXXX-XXX.
[260] Siskin 8702-11; BDX 120-32.
[261] See Knight v. Alabama, 14 F.3d 1534, 1541 (11th Cir.1994).
[262] Dr. Ray Hoops, former Vice-Chancellor for Academic Affairs at UM and now the President of Southern Indiana University, testified that as a former administrator of the university which had the largest absolute number of minority students of any institution of higher learning in the United States (Wayne State), he had the opportunity to observe the racial relationships and the racial climate of that university as compared with the racial climate of UM. Dr. Hoops, who, as the record shows, has a personal and professional record which enhances his credibility in this area, testified that he saw a better interracial climate on the UM campus than he observed at Wayne State. Hoops 6736.
[263] Ignoring the percentage of the cohort enrolled under exceptions to the regular admission requirements.
[264] Compare ASU retention rates for blacks and whites. To conclude that the variance by race is consistent with a racially exclusionary environment would infer JSU has a racially hostile environment for whites; yet, no evidence exists to support that proposition.
[265] Appendix A1-A5; US17-US22.
[266] United States Contested Issues of Fact No. 2(c).
[267] Anderson 4768.
[268] Anderson 4769.
[269] Luvene 7906; Crawford 7579-80; Rushing 7739-40; PX 125.
[270] Appendix A5; US22.
[271] Appendix US15-US16.
[272] Pretrial Order at p. 25.
[273] Those studies are as follows: the O'Shea study (1927); the Campbell study (1933); the Mississippi Study of Higher Education (1945); the Brewton study (1954); and the 1965/66 Role and Scope study.
[274] For example, the Brewton study and the 1965-66 study served to project enrollments and make recommendations related to program expansion and institutional development. The Brewton report suggested closure of ASU or merger with JSU. USX 108-9; Anderson 4772; 5094; (1987) PX 200.
[275] Rushing 7767.
[276] See Appendix US15.
[277] See Appendix US16.
[278] Appendix US31.
[279] Paul 9996-98; USX 703.
[280] Paul 9999-10000; USX 704-05.
[281] See Ayers, 674 F.Supp. at 1536 ("Students may attend a public junior college, all of which have open admission policies"). When this action was first tried in 1987, evidence was presented that for admission to certain programs at various junior colleges, an ACT score was used for informational purposes only. (1987) Thrash 1134.
[282] USX 706; Paul XXXXX-XXX.
[283] Paul 10028; 10032.
[284] DSU has the highest percentage of black transfers at 25% of its student body. For the same time period, DSU's white transfer rate was lower (23%). USM has the second highest percentage of black transfers at 19% of its student body.
[285] Allen 4472-74; USX 18.
[286] In the late 1980s, the Board standardized curricula across universities so that every baccalaureate program that exists at an IHL has the same curriculum. Thus, any student attending a public junior college in the system can transfer to any senior college in the system without loss of college credit hours.
[287] Paul 10032-33; 10041-42; 10066-67; USX 713; USX 716; Pickett 5954-5956.
[288] Miller 5624-25; Luvene 7923.
[289] That is to say that the State may benefit from the observations made by the plaintiff parties' witnesses in this area, namely, Dr. Paul, but is not compelled to accept her recommendations in the context of this lawsuit. Educationally sound recommendations which the court finds has support in the record include: (1) elimination of ACT test scores as cutoffs for academic/technical program entry at all community colleges (Paul 10083); and (2) improvement of the facilitation of transfers to the public four-year universities. Some of the ways to do this include: (a) a three-way contract between the student, the community college he or she attends and the transferee college; (b) automatic dual admission to the transferee institution upon entrance to the community college. Dual admission would address issues such as financial aid, the possibility of reserved seating, the issuance of an identification card to the student by the four-year university and, finally, the clarification of maturation standards. Paul 10085.
[290] Appendix US61.
[291] Anderson 5015-17; Loewen 5104-09.
[292] Conrad 5385-86.
[293] Appendix A6.
[294] Anderson 5014; PX 196; PX 192.
[295] The "College Preparatory Curriculum" is a series of courses now consisting of four units of English, three units of science, three units of social studies, one-half unit of computer applications and, finally, two electives to include any two of the following: foreign language, world geography, a fourth-year lab-based science or fourth-year mathematics. BDX 202.
[296] BDX 202.
[297] Upon review by the United States Department of Education, the Board has substituted the term "full admission" for that of "regular" admission; Students falling into the category of "conditional" admittees will now have "full admission" status, and those students formerly falling under "provisional admission" will be granted the status of "full admission with academic deficiencies." BDX 713 (Supp.). These changes were necessary to insure students admitted under the previous designations would be eligible for federal financial aid. Defendants' Proposed Findings of Fact and Conclusions of Law. pp. 22-23.
[298] Boylan 6302. The accuplacer is a cognitive assessment instrument that measures intellective areas and student characteristics. Conversely, the study behavior inventory is an affective instrument that looks at the student's study skills and attitudes. An affective assessment instrument measures personal characteristics, attitudes, and values. Boylan 6303. Primarily now used by four-year institutions in America with open-door admission policies, the accuplacer is designed to identify deficiencies students possess in certain college curriculum areas. It is not designed as a screening instrument or as a component of an admission process per se but rather as a placement device. Doyle 6148; 6173; 6197.
[299] BDX 202.
[300] BDX 713 (Supp.) (full admission with academic deficiencies).
[301] Boylan 6305.
[302] Boylan 6306.
[303] Boylan 6305-07.
[304] Boylan 6307-10.
[305] Anzalone 5782-5790; BDX 249-254.
[306] BDX 252.
[307] PX 387.
[308] Anzalone 5780-83; Miller 5572-73; BDX 252. Of those now eligible at the HBIs (Enhanced ACT composite score of 15), students scoring a 14 on the English section of the ACT and those scoring a 16 on the math section are enrolled in a developmental program. PX 25; PX 15.
[309] Paul 10090; Conrad 10361-62; PX 385.
[310] Dr. Allen's recommendations, in general, approximate what the Board has proposed, e.g., GPA used with test scores, probationary admission, class rank, and letters of recommendation. Allen 4454. Prior to trial, the United States urged use of the HBIs' admissions standards of a 15 ACT score and high school graduation by all universities. "Practicable Alternatives to Remnants that State Contends Are Justified Submitted by the United States" p. 11.
[311] "Practicable Alternatives" p. 11. Statewide admissions criteria and standards "that increase educational opportunity for blacks" are also a part of the Conrad proposal. Conrad 10297-10302.
[312] See Allen 4464; Pickett 5950; Anzalone 5769-71; BDX 255.
[313] BDX 255.
[314] Pickett 6016-17.
[315] Pickett 6016-17; BDX 222.
[316] BDX 224. For example, Hinds A.H.S. School District is ranked second in the state in terms of its average per pupil expenditures, yet is ranked 148 (out of 153) in terms of ACT mean composite scores, as compared with other school districts. Claiborne County School District is ranked third in terms of average per pupil expenditures, but is ranked 140 in terms of ACT mean composite scores. Conversely, Ocean Springs School District is ranked 127 (out of 153) in terms of average per pupil expenditures, but is ranked first in the state in terms of ACT mean composite scores. Itawamba A.H.S. School District ranks at the bottom of the list (153) in terms of average per pupil expenditures, but is ranked near the top in terms of ACT mean composite scores (27).
[317] Pickett 5984.
[318] Young 9639; George 3423; Carter 2854-56. See also Allen 4544-47; Whisenton 3315-16.
[319] Dr. Boylan, currently the Director of the National Center for Developmental Education and professor of higher education at Appalachia State University, has extensive experience with developmental education programs, particularly those programs currently in existence at HBIs. Boylan 6268-73.
[320] Boylan 6313.
[321] Loewen 5156; 5206-07; Hillard 9882.
[322] Loewen 5162-5169.
[323] BDX 224.
[324] Anzalone 5791-94; Loewen 5162-65.
[325] Hoops 6826-28; Anzalone 5839; Blake 4130; Wyatt 10736.
[326] BDX 638.
[327] BDX 638.
[328] Conrad 10297-10302. Other components not considered here include: (a) state-wide admissions criteria and standards that increase educational opportunity for blacks; (b) the creation and fostering of institutional initiatives to improve recruitment, retention and academic success of other-race students at both the HBIs and the HWIs (illustrative of such initiatives are measures to enhance campus climate, strengthen other-race recruitment and broaden other-race financial aid such as other-race scholarships at both the HBIs and HWIs); (c) improving the facilities at the HBIs directed toward improving the attractiveness of these institutions and altering the public perceptions of these institutions (included under this rubric are measures directed toward enriching existing programs, strengthening faculty and securing accreditation where necessary); (d) measures designed to desegregate faculty and staff; (e) adequate resources set aside to fund the desegregation plan with these components; and, finally, (f) provisions for monitoring and evaluating the planned remedy.
[329] Conrad 10396-98.
[330] Although the plaintiffs' attorneys want the medical school transferred to JSU, the president of JSU advised the court that he does not want control of the medical school.
[331] While the plaintiffs' witnesses indicate that admissions requirements need not be the same as those currently in place, provided exit requirements remain rigid, Sullivan 9705, in either case, the court fails to see how participation in the medical profession would be increased beyond what exists now by affiliation with JSU.
[332] When drafting a proposal for a new program, it is necessary for the institution to identify possible duplication with other programs in the system, and yet, the other three comprehensive institutions already offer most programs. The Board defines "unnecessary duplication," in part, as the existence of two or more identical or very similar programs at two or more institutions at the same time. Cf. testimony of Meredith in 1987 (4515-4530) with testimony of Cleere in 1994 (8221-8297).
[333] Cleere 8221-56; BDX 638.
[334] BDX 638.
[335] Crawford 7598; Luvene 7912-14; Garrett 9561; Cruthers 7445.
[336] Hudson 584-86; Blake 3977-78; Anderson 4972-73.
[337] (1987) PX 200.
[338] MVSU ranks second in the system in terms of the amount of repair and renovation appropriations per FTE student.
[339] Cleere 8096; Curry 6675-76; Bowman 6628-29; BDX 175; BDX 175A.
[340] Lott 7147; Kaiser 1020-21.
[341] However, the percentage of black students on financial aid enrolled at DSU approximates the percentage at MVSU.
[342] BDX 672.
[343] USX 14.
[344] See Allen 4442-46.
[345] See Cruthers 7443-44.
[346] BDX 638.
[347] Crawford 7601; Luvene 7915-16; Garrett 9560-61.
[348] Crawford 7598-99; Cleere 8098-99.
[349] Anderson 4977.
[350] Rent 10563.
[351] Lott 7147-49.
[352] The dispute over the actual savings to be realized through consolidation of MSU and MUW centers around the costs to the State of maintaining MUW as a free-standing institution versus its absorption by MSU. Generally, the dispute revolves around what the Board includes as "overhead" or support functions expenditures versus instructional costs. What expenditures are considered to be overhead, to a large degree, dictates how expensive to the State MUW appears to be and, concomitantly, how much savings through merger (via elimination of overhead) might ultimately be realized. See BDX 668.
[353] Cleere 8098-99. Using the Board's definition, however, that duplication would not appear to fall under the rubric of "unnecessary" inasmuch as, beyond the core liberal arts curriculum, MUW offers few programs that are not high demand and/or supported by state needs. See WX 18 (MUW offers nursing, business administration and elementary education); Pickett 6002-6004.
[354] Rent XXXXX-XXX; Clauge 4172-74; Cruthers 7444-45; Zacharias 8478; WX3; WX5; BDX 269(a); USX 78.
[355] According to the defendants, since the "maintenance of eight universities ... is indeed the only present policy or practice traceable to de jure segregation which continues to have segregative effects ... [a]ll of the plaintiffs' claims of disparate treatment of certain universities in reality simply address aspects of the continued operation of such eight universities." Pretrial Order at 7(c).
[356] Crawford 7599-7600.
[357] BDX 308; Foil 6895.
[358] Wharton 8929-30.
[359] Lott 7135-36. By institution, the percentage of enrolled students that received Pell Grants for fiscal year 1992/93 is as follows: ASU 79.31%; JSU 69.57%; MVSU 95.20%; DSU 47.55%; MSU 30.48%; MUW 36.73; UM 25.37%, and USM 44.30%. BDX 293.
[360] Wharton 8928; BDX 296.
[361] Cruthers 7391. Mississippi has more four-year institutions per million persons (3.44) than the average number of institutions per million persons in the states of the Southeastern region (3.14) or in the nation (2.35). BDX 666.
[362] This court has made this point before. Ayers, 674 F.Supp. at 1564.
[363] Miss. Const. Art. 8, § 213-A (Supp.1994).
[364] See Hoops 10856-10931; Conrad 10317-10329.
[365] Even with access to the traditional tools employed at the primary/secondary level, altering the racial composition of institutions takes time. Meaningful desegregation of institutions of higher education is a complex endeavor that has not been achieved during a period of over thirty years of race-neutral admissions requirements.
[366] PX 232.
[367] PX 25; PX 29; Wyatt 10750-52.
[368] USX 014.
[369] PX 205; BDX 400a.
[370] Even prior to the Board's merger proposal to the court, the presidents of all universities registered their opposition to the closure or merger of any university. Rent 10580-81.
[371] Cruthers 7444. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725632/ | 721 So. 2d 424 (1998)
Ralph Lee FELTMAN, Appellant,
v.
Charlotte Harvey FELTMAN, Appellee.
No. 97-0045, 97-2116.
District Court of Appeal of Florida, Fourth District.
December 2, 1998.
*425 Paula Revene of Law Office of Paula Revene, P.A., Fort Lauderdale, for appellant.
Martin L. Haines, III, Chartered, Lake Park and H.T. Maloney of Law Office of Patterson, Maloney & Maisel, Fort Lauderdale, for appellee.
PER CURIAM.
The husband appeals from a final judgment of dissolution of marriage, an order liquidating and enforcing a charging lien and a judgment awarding attorney's fees to his former wife. We affirm the final judgment of dissolution of marriage in all respects, except the designation of the 9th Street warehouse property as a marital asset subject to equitable distribution. There was insufficient competent, substantial evidence to support the trial court's finding that the 9th Street warehouse property, which was inherited by the husband and his sister upon the death of their mother, constituted marital property.
We also find error in entry of the post-judgment order enforcing and liquidating a charging lien in favor of the husband's former trial counsel. The trial court lacked jurisdiction to enter the order imposing a charging lien after rendition of the final judgment, which did not reserve jurisdiction for that purpose. We, therefore, reverse the order, See Keister v. Polen, 471 So. 2d 656 (Fla. 4th DCA 1985); Patin v. Popino, 459 So. 2d 435 (Fla. 3d DCA 1984); Frumkes v. Frumkes, 328 So. 2d 34 (Fla. 3d DCA 1976); see also Vazquez v. Vazquez, 512 So. 2d 1045 (Fla. 3d DCA 1987).
With respect to the husband's claim that the trial court erred in awarding attorney's fees to the wife, we find no error and affirm.
AFFIRMED in part; REVERSED in part.
POLEN, FARMER and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750625/ | 650 So. 2d 242 (1995)
Kelly DEBONA
v.
Alexandria PAWN.
No. 94-C-2878.
Supreme Court of Louisiana.
January 27, 1995.
Denied.
*243 MARCUS, and KIMBALL, JJ., would grant the writ.
VICTORY, J., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725668/ | 675 So. 2d 44 (1994)
Paul HENRY
v.
STATE.
CR-92-1591.
Court of Criminal Appeals of Alabama.
March 25, 1994.
John C. Robbins, Birmingham, for appellant.
Paul Henry, pro se.
James H. Evans, Atty. Gen. and Frank Patterson, Deputy Atty. Gen., for appellee.
McMILLAN, Judge.
In 1988, the appellant, Paul Henry, pleaded guilty to three charges of theft of property in the second degree. He was sentenced in each case to 15 years' imprisonment; those sentences were split 2 years in prison and the remainder of the sentence was suspended and he was placed on 5 years' probation. All of the sentences were to run concurrently. *45 On March 10, 1993, his probation officer filed a delinquency report, based upon the appellant's alleged repeated failure to report as directed. On April 15, 1993, the appellant was arrested and placed in jail, and on May 21, 1993, his probation was revoked.
The appellant contends that he was denied due process because, he says, the trial court failed to comply with Rule 27.5(a)(1), (a)(4), and (b); and Rule 27.6(a), (e) and (f), A.R.Cr.P.
In Taylor v. State, 600 So. 2d 1080 (Ala.Cr.App.1992), this Court held that "the general rules regarding preservation should apply to rights granted to a probationer by Armstrong [v. State, 294 Ala. 100, 312 So. 2d 620 (1975)] and Rule 27.5 and 27.6." Here, the appellant failed to raise any of his claims at the trial court level; therefore, consideration of his claims based on Rule 27.5 and 27.6(a) and (e) is procedurally barred on appeal. However, with regard to his claim that the trial court erred in failing to make a written statement as to the reasons for revoking his probation and the evidence it relied upon, as required by Rule 27.6(f), this Court has said that "we may not rely upon procedural bar on this particular issue." 600 So.2d at 1082.
Therefore, this cause must be remanded to the circuit court of Jefferson County, in order for that court to file a written statement as to the specific reasons for revoking the appellant's probation and the evidence relied upon in reaching the decision to revoke. A return is to be filed with this Court within 90 days of the release of this opinion.
REMANDED WITH INSTRUCTIONS.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345600/ | 789 P.2d 377 (1990)
Joseph J. AMAROK, Jr., Appellant,
v.
STATE of Alaska, Appellee.
No. A-3079.
Court of Appeals of Alaska.
April 6, 1990.
*378 Barbara Brink, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant.
Brent Cole, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
BRYNER, Chief Judge.
Joseph J. Amarok, Jr., was convicted after pleading no contest to one count of sexual assault in the first degree and one count of burglary in the first degree. As a third felony offender, Amarok was subject to presumptive terms of twenty-five years for the sexual assault and six years for the burglary. Superior Court Judge Joan M. Katz found three aggravating factors: that Amarok was on parole at the time of the offense, that his victim was particularly vulnerable, and that his conduct was among the most serious in its class. After rejecting Amarok's request to refer the case to the three-judge panel, Judge Katz imposed an adjusted presumptive term of thirty years with three years suspended for sexual assault and a consecutive presumptive term of six years for burglary. Amarok appeals, contending that his sentence is excessive. We affirm.
On December 28, 1988, Amarok became intoxicated, cut the telephone line to a residence in his neighborhood, shattered the living room window with a shovel, and climbed into the house through the broken window. He then brutally assaulted the resident of the house, a fifty-eight year old partially disabled woman. Amarok subjected his victim to repeated acts of attempted genital and anal intercourse, cunnilingus, and digital penetration. When Amarok had completed sexually assaulting his victim, he told her that he was going to kill her. While Amarok rummaged through the kitchen drawers looking for a knife, his victim attempted to flee. Amarok caught *379 her and forced her back into the bedroom. He returned to the kitchen but apparently became distracted when he found some beer in the refrigerator. After drinking several cans of beer, Amarok passed out at the kitchen table. His victim managed to escape and summon help.
Amarok was thirty-one years old when he committed the offenses in this case. His criminal history consisted of several misdemeanor convictions and three prior felony convictions. Amarok was convicted of armed robbery in 1977 after he assaulted a female taxicab driver with a knife and stole money from her. For this offense, he was sentenced to serve three years with two years suspended. The suspended portion of the sentence was imposed in 1979 after Amarok violated the conditions of his probation by failing to comply with requirements for alcoholism treatment.
Amarok was convicted of two additional felonies in 1981. The convictions, which arose from a single incident, were for burglary in the first degree and robbery in the first degree. Although Amarok was not convicted of sexual assault as a result of the incident, his conduct was actually strikingly similar to the conduct that resulted in his current convictions. Amarok battered his way through the locked door of a neighboring apartment and attacked an elderly woman who resided there, breaking her jaw and attempting to sexually molest her. He fled when the woman attempted to summon help. Before leaving the apartment, Amarok took the contents of the woman's purse.
As a result of the 1981 convictions, Amarok received sentences totalling ten years' imprisonment. He was released on mandatory parole in August of 1988. Before his release, Amarok was enrolled for approximately nine months in the sexual offender treatment program at the Highland Mountain Correctional Facility but performed poorly. A pre-discharge evaluation, prepared by the supervising psychiatrist, depicted Amarok as a potentially dangerous offender:
Joe Amarok is a dangerously violent man with two known sex offenses. He is not to be considered "treated" in that no change is noted in his behavior patterns. He is an alcoholic who verbalized his "wellness" but a long-term commitment to stay sober is doubtful. He stopped using drugs in the institution approximately two years ago, which could be due to his losing so much good time and just wanting out of jail. He will most likely use again when he gets into a stressful environment and no one is "looking over his shoulder." Joe remains an angry man who has not learned how to deal with his feelings constructively... . Joe Amarok is a HIGH RISK for re-offending.
Amarok lived up to his potential less than five months after being released from prison. At the time, a warrant had already been issued for his arrest as a result of a petition to revoke parole, alleging that he had violated the conditions of his release by changing his residence without permission, failing to enroll in sexual offender treatment, failing to pursue alcohol rehabilitation, and failing to submit samples for alcohol testing.
At his sentencing hearing in this case, Amarok did not dispute the applicability of the three aggravating factors alleged by the state.[1] Judge Katz accepted the aggravating factors. Given the violence involved in the sexual assault, its protracted and apparently premeditated nature, and the threats of death to the victim, Judge Katz found Amarok's conduct to be among the most serious in its class. The judge also found the seriousness of the offense enhanced because Amarok either knew or should have known that his victim was *380 particularly vulnerable due to partial blindness and other disabilities resulting from brain surgery. In addition, Judge Katz found it significant that Amarok was on parole, particularly because he had only recently been released from confinement. Relying on these aggravating factors, Judge Katz concluded that Amarok deserved a sentence for his sexual assault charge that was somewhat greater than the applicable presumptive term of twenty-five years.
Judge Katz further concluded that a consecutive sentence should be imposed on the burglary charge because Amarok's commission of the sexual assault in his victim's home rendered his conduct particularly aggravated. Accordingly, Judge Katz elected to impose a consecutive presumptive term of six years for the burglary.
Before imposing sentence, Judge Katz expressly found Amarok to be a worst offender and a danger to the community. Judge Katz found little prospect for rehabilitation and concluded that the primary goal of sentencing should be to protect the community by isolating Amarok.
On appeal, Amarok first contends that the superior court erred in imposing his sentences consecutively. He argues that, because he was convicted of burglary for breaking and entering into a dwelling with intent to commit sexual assault, the burglary is essentially part of the same criminal episode as the ensuing sexual assault. Amarok argues that the burglary therefore does not warrant separate punishment.
We have previously held, however, that, when an offender commits burglary by breaking and entering a dwelling with the intent to commit a crime and then proceeds to commit the intended crime, the offense of burglary does not merge with the subsequently committed offense; rather, the crimes are subject to separate convictions and punishment. See Reynolds v. State, 706 P.2d 708, 711 (Alaska App. 1985).
Quite apart from the serious threat to personal safety and personal privacy that stemmed from Amarok's sexual assault, Amarok's burglary violated his victim's significant and distinctly different right to privacy in her own home, thereby resulting in incrementally greater harm. The overall seriousness of Amarok's conduct was measurably enhanced by his commission of the sexual assault within his victim's home. This consideration, appropriately recognized by the sentencing court, amounted to good cause for imposition of consecutive sentences. See Jones v. State, 744 P.2d 410, 411 (Alaska App. 1987).
In imposing an aggregate term exceeding the maximum term for the first-degree sexual assault, Judge Katz made the requisite express findings that Amarok was a worst offender and that his isolation was necessary for the protection of the community. See Mutschler v. State, 560 P.2d 377, 380 (Alaska 1977); State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Murray v. State, 770 P.2d 1131, 1140 (Alaska App. 1989). These findings are amply supported by the record.
Amarok nevertheless argues that his total sentence[2] is excessive, citing cases in which we have declined to approve sentences exceeding thirty years of unsuspended imprisonment. See, e.g., Patterson v. State, 689 P.2d 146, 151 (Alaska App. 1984); Tookak v. State, 648 P.2d 1018, 1020 (Alaska App. 1982). We find these cases distinguishable from Amarok's. Given the exceptional seriousness of Amarok's current offenses, his history of similar violent *381 felonies, his poor psychiatric prognosis, and his recalcitrance in the face of both repeated opportunities for treatment and prolonged periods of incarceration, we conclude that Amarok is more readily comparable to offenders for whom we have approved sentences in the range of forty years. See, e.g., Larson v. State, 688 P.2d 592, 600 (Alaska App. 1984); Nix v. State, 653 P.2d 1093, 1101 (Alaska App. 1982). See generally Murray, 770 P.2d at 1140-44.
Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.
NOTES
[1] Amarok nevertheless asked Judge Katz to refer his case to the three-judge sentencing panel, contending that his prospects for rehabilitation were sufficient to warrant imposition of a sentence that did not restrict his eligibility for discretionary parole. Judge Katz rejected Amarok's request for referral to the three-judge panel, concluding that the reasons advanced by Amarok in support of the request for referral could apply to virtually all offenders. On appeal, Amarok does not expressly challenge Judge Katz' refusal to refer his case to the three-judge panel.
[2] Amarok's parole was evidently revoked after his sentencing hearing in this case, and he was ordered to serve the remaining balance on his 1981 convictions a period of slightly less than three years. In his sentence appeal, Amarok includes this period in his argument that the sentence imposed by Judge Katz was excessive. Our sentence appeal jurisdiction does not extend to actions taken by the parole board, however. Moreover, in evaluating the sentence imposed by Judge Katz, we believe it inappropriate to consider a period of confinement that had not yet been imposed when Judge Katz made her sentencing decision. Upon completion of this sentence appeal Amarok may, of course, move for reduction of his sentences in the current case in light of the action taken by the parole board following his original sentencing hearing. See Alaska R.Crim.P. 35(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345604/ | 708 N.W.2d 151 (2005)
268 Mich. App. 731
Joann KUSMIERZ, Kerry Kusmierz, Kim L. Lindebaum, James B. Lindebaum, and M Supply Co., Plaintiffs-Appellees,
v.
Joyce SCHMITT and Diane Rankin, Defendants-Appellants, and
Ronald Schmitt, Defendant.
Docket No. 258021.
Court of Appeals of Michigan.
Submitted October 18, 2005, at Lansing.
Decided November 15, 2005, at 9:15 a.m.
Released for Publication January 23, 2006.
*152 Skinner Professional Law Corporation (by David R. Skinner and Staci M. Richards), Bay City, for JoAnn Kusmierz and others.
Fraser Trebilcock Davis & Dunlap, P.C. (by Graham K. Crabtree and Nicole L. Proulx), Lansing, for Joyce Schmitt and Diane Rankin.
Before: BANDSTRA, P.J., and NEFF and DONOFRIO, JJ.
BANDSTRA, P.J.
This appeal raises issues concerning the case evaluation process under MCR 2.403. We conclude that the trial court erred in augmenting the value of the jury verdict because of an order granting plaintiffs injunctive relief and, as a result, awarding plaintiffs "actual costs" (including attorney fees) as a case evaluation sanction against defendants. MCR 2.403(O)(5) only authorizes that approach if it is "fair ... under all of the circumstances." Here, we conclude *153 that it was not fair under all the circumstances because the case evaluators had not considered equitable relief in determining their award to plaintiffs and because the jury, at trial, had already made a determination of the attorney fees to which plaintiffs were entitled. Further, the trial court failed to compare the case evaluation award and jury verdict for each pair of plaintiffs and defendants as required by MCR 2.403(O)(4)(a). Accordingly, we vacate the orders of the trial court regarding actual costs and remand for further proceedings consistent with this opinion.
FACTS AND PROCEEDINGS BELOW
A brief summary of the family dispute underlying this case suffices for the purposes of the issues raised on appeal. In June 2001, plaintiffs JoAnn Kusmierz, Kerry Kusmierz, Kim Lindebaum, James Lindebaum, and M Supply Company filed suit against defendants Joyce Schmitt, Ronald Schmitt, and Diane Rankin, alleging claims of defamation, intentional infliction of emotional distress, and invasion of privacy/false light. Plaintiffs JoAnn Kusmierz and James Lindebaum are sister and brother, and their spouses are Kerry Kusmierz and Kim Lindebaum, respectively. Plaintiff M Supply Company is a family business associated with plaintiffs. Defendants Joyce Schmitt and Diane Rankin are sisters of plaintiffs JoAnn Kusmierz and James Lindebaum, and defendant Ronald Schmitt is defendant Joyce Schmitt's husband. Plaintiffs' complaint requested a money judgment in the amount of no less than $25,000 for each individual plaintiff. It sought recovery under the Revised Judicature Act's provision for libel and slander actions based on communications involving private individuals, which limits recovery to "economic damages including attorneys fees." MCL 600.2911(7). However, it did not contain a request for equitable relief.
In June 2002, the case was submitted for evaluation. The case evaluators rendered an evaluation of $25,000 in favor of all plaintiffs against defendants Joyce Schmitt ($17,500) and Diane Rankin ($7,500), and found no cause of action against defendant Ronald Schmitt. The case evaluation stated that "[b]y stipulation of the parties, all plaintiffs are treated as one."[1] The award was rejected by plaintiffs and defendants Joyce Schmitt and Diane Rankin, but was accepted by defendant Ronald Schmitt. Following the evaluation process, on stipulation of the parties, M Supply Company was dismissed as a plaintiff.
In April 2003, the case proceeded to trial. During trial, defense counsel took issue with the presentation of evidence concerning attorney fees because plaintiffs' complaint did not include a request for an award of attorney fees, and because their witness list had not identified anyone able to provide testimony about the reasonableness of the fees charged. Defense counsel argued that the statutory attorney fees that plaintiffs sought under MCL 600.2911(7) were "special damages" that must be "specifically stated" in the pleadings under MCR 2.112(I). In response, *154 plaintiffs moved to file an amended complaint under MCR 2.118(C)(2), arguing that statutory attorney fees were not "special damages" that were required to be specifically pleaded in the original complaint, and that, in any event, adding attorney fees as part of the damages would not prejudice defendants. The trial court granted plaintiffs' motion, and the amended complaint was filed during trial, claiming that economic loss to plaintiffs included attorney fees and costs. However, like the original complaint, the amended complaint requested only a money judgment, and did not contain a request for equitable relief. Plaintiffs' counsel, David Skinner, testified regarding attorney fees incurred by plaintiffs for his services.
During closing argument, defendants argued that if attorney fees were awarded, they should be limited to the actual amount paid, and that the award should be apportioned among plaintiffs according to the amount of damages recovered by each of them. The trial court instructed the jury that if it decided that the plaintiffs were entitled to damages, it should determine the amount of money that would reasonably, fairly, and adequately compensate plaintiffs, and that the elements of damages should include actual and future attorney fees and costs. M Civ JI 50.01. During deliberations, the jury asked for clarification regarding damages, and the trial court provided an instruction regarding noneconomic damages. M Civ JI 50.02.
The jury found defendants liable for damages totaling $22,000, allocated as follows: $11,000 against defendant Diane Rankin, $9,000 against defendant Joyce Schmitt, and $2,000 against defendant Ronald Schmitt. Out of the total award, $10,000 were awarded for attorney fees $5,000 to plaintiff James Lindebaum and $5,000 to plaintiff Kim Lindebaum. The remainder of the award for was for noneconomic damages$5,000 to plaintiff James Lindebaum, $5,000 to plaintiff Kim Lindebaum, $1,000 to plaintiff JoAnn Kusmierz, and $1,000 to plaintiff Kerry Kusmierz.
In May 2003, plaintiffs moved for additur or partial new trial and judgment notwithstanding the verdict under MCR 2.610, MCR 2.611(A)(1)(a), (d), and (e), and MCR 2.611(E), arguing that both the economic and noneconomic damages awarded were grossly inadequate and against the great weight of the evidence, and that the trial court's belated jury instruction regarding noneconomic damages constituted an irregularity in the proceedings. Plaintiffs also moved for costs and attorney fees under MCR 2.625(A)(2) and MCL 600.2591(1) on the basis that the defenses asserted by defendants were frivolous. Plaintiffs also moved for injunctive relief under MCR 3.310(H), requesting that defendants be permanently enjoined from engaging in harassing conduct.
In December 2003, the trial court denied plaintiffs' motion for additur or partial new trial and judgment notwithstanding the verdict, finding that the jury verdict was not grossly inadequate or against the great weight of the evidence. Specifically, the trial court found that the amount awarded by the jury for attorney fees was within the range supported by the evidence presented at trial and declined to disturb the jury's finding that plaintiffs did not suffer economic damages. The trial court also found that there was no error in the jury instruction regarding noneconomic damages, where plaintiffs failed to request the instruction before the jury began deliberating, failed to object to the instructions as given, and only requested the instruction after the jury asked a question pertaining to noneconomic damages. The trial court also denied plaintiffs' motion for costs and *155 attorney fees, finding that the defenses proffered by defendants were not frivolous. However, the trial court granted in part plaintiffs' motion for injunctive relief, notwithstanding the fact that no form of injunctive relief had been requested in the original or amended complaint. The trial court acknowledged that injunctive relief "was not specifically requested in either [c]omplaint," but found that it had the authority to enter such an order "in the interest of justice."
In February 2004, the trial court entered an order for injunctive relief, enjoining defendants from sending letters or packages to plaintiffs' residences or places of employment, coming within a quarter mile of plaintiffs' residences, and putting anything in plaintiffs' mailboxes or driveways for three years. A final written judgment was also entered in accordance with the jury verdict. No appeals were taken from either of these orders.
Plaintiffs then moved for a determination of case evaluation sanctions under MCR 2.403, arguing that the verdict was not more favorable to defendant Joyce Schmitt than to plaintiffs because plaintiffs received both a monetary award and an equitable award and it was fair to award costs under all the circumstances. Stated another way, plaintiffs maintained that, although the adjusted verdict in their favor was less than the total case evaluation award, the verdict was not more favorable to defendant Joyce Schmitt than to them, by virtue of the trial court's award of injunctive relief.[2] Plaintiffs requested that the trial court award case evaluation sanctions in the amount of $86,298.30, including costs and reasonable attorney fees, with interest assessed from the date the complaint was filed.
Defendant Joyce Schmitt also moved for case evaluation sanctions, arguing that, where the case evaluation resulted in an award of $17,500 against her and in favor of plaintiffs and the adjusted jury verdict was $10,254.59 against her and in favor of plaintiffs, the adjusted verdict was more favorable to her than the case evaluation. Defendant Joyce Schmitt argued that, therefore, she was entitled to taxable costs and attorney fees incurred after rejection of the case evaluation under MCR 2.403(O)(1) and MCR 2.403(O)(6), in the amount of $51,960.13.
Defendants further responded to plaintiffs' motion for a determination of case evaluation sanctions by arguing that it would be inappropriate for the trial court to consider its posttrial grant of injunctive relief as a basis for an award of case evaluation sanctions for the following reasons: (1) the order granting injunctive relief was not a part of the "verdict" for the purpose of determining liability for case evaluation sanctions; (2) plaintiffs never requested equitable relief in either their original or first amended complaint, and no such request was considered by the case evaluators; and (3) the motion for injunctive relief was not filed until after the jury returned a verdict that supported an award of case evaluation sanctions in favor of defendant Joyce Schmitt. Defendants also argued that it would be inappropriate for the trial court to award additional attorney fees as case evaluation sanctions because evidence supporting plaintiffs' claims for attorney fees was presented to the jury at trial over defendants' objections, *156 the jury rendered its award of attorney fees on the basis of the evidence presented, and the trial court denied plaintiffs' motion for additur relating to the allegedly insufficient award of attorney fees.
In July 2004, following hearings on the parties' motions for case evaluation sanctions, the trial court granted case evaluation sanctions, generally, in favor of plaintiffs and denied case evaluation sanctions in favor of defendant Joyce Schmitt. The trial court rejected defendants' argument that an additional award of attorney fees as case evaluation sanctions was inappropriate in light of the jury's consideration and award of attorney fees as an element of plaintiffs' damages. However, the trial court indicated that the amount of attorney fees awarded as case evaluation sanctions would be reduced by the amount previously awarded by the jury. The trial court also rejected defendants' argument that its posttrial award of injunctive relief could not be used as a basis for an award of case evaluation sanctions, stating, "I believe that the language in the complaint, which states that the plaintiff requests all other reliefs as necessary is sufficient for this Court to consider the equitable relief received." Therefore, the trial court's award of case evaluation sanctions to plaintiffs was based on the adjusted verdict enhanced by an unspecified value attributed to its posttrial award of injunctive relief.
The trial court awarded plaintiffs "actual costs" under MCR 2.403(O)(6) in the amount of $67,259.60. Defendants Joyce Schmitt and Diane Rankin appeal as of right the trial court's posttrial case evaluation sanctions decisions.
DISCUSSION OF THE ISSUES RAISED[3]
Defendants argue that the trial court erred in considering its posttrial award of injunctive relief as a basis for an award of case evaluation sanctions in this case under MCR 2.403(O)(5). We review de novo as a question of law a trial court's decision to grant or deny case evaluation sanctions. Campbell v. Sullins, 257 Mich. App. 179, 197, 667 N.W.2d 887 (2003). Likewise, we review de novo as a question of law the interpretation and application of court rules. Peters v. Gunnell, Inc., 253 Mich.App. 211, 225, 655 N.W.2d 582 (2002).
Defendants first contend that MCR 2.403(O)(5) did not allow the trial court to consider its award of injunctive relief in determining plaintiffs' entitlement to case evaluation sanctions. MCR 2.403(O)(5) provides:
If the verdict awards equitable relief, costs may be awarded if the court determines that
(a) taking into account both monetary relief (adjusted as provided in subrule [O][3]) and equitable relief, the verdict is not more favorable to the rejecting party than the evaluation, and
(b) it is fair to award costs under all of the circumstances.
*157 Defendants reason that MCR 2.403(O)(5) does not apply because it only refers to a determination that "the verdict is not more favorable to the rejecting party than the evaluation" and, in this case, the relevant question is whether the verdict is more favorable to plaintiffs under MCR 2.403(O)(1), both sides having rejected the case evaluation.
MCR 2.403(O)(1) provides:
If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party's actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the case evaluation.
Under the wording of the first sentence of this provision (payment must be made "unless the verdict is more favorable"), the relevant question is whether the verdict is not more favorable to the rejecting party. If it is not more favorable, the rejecting party must pay the opposing party's actual costs. That is apparently the genesis of, or counterpart to, the language of MCR 2.403(O)(5)(a), which allows the court to take into account both monetary relief and equitable relief in determining whether the verdict "is not more favorable" to the rejecting party than the evaluation.
A different question becomes relevant under the second sentence of MCR 2.403(O)(1) where both parties have rejected the evaluation. In that case, as was the situation here, a party is only entitled to costs if the verdict "is more favorable" to that party than the case evaluation. MCR 2.403(O)(5)(a) contains no language that specifically tracks the second sentence of MCR 2.403(O)(1).
Defendants are thus technically correct in arguing that MCR 2.403(O)(5) does not, by its terms, contemplate the situation presented here. To more completely address the alternatives of MCR 2.403(O)(1), MCR 2.403(O)(5)(a) should probably be amended with the addition of a clause something like "or, in situations where both parties have rejected the evaluation, the verdict in favor of the party seeking costs is more favorable than the case evaluation." Nonetheless, MCR 2.403(O)(5) certainly does not prohibit the trial court from placing a value on equitable relief granted and using it in comparing the verdict and the case evaluation in the situation presented in this case. To do so furthers the apparent purpose of the rule. We conclude that the trial court did not err in using MCR 2.403(O)(5) as a guide for this case, even though, by its terms, it does not technically apply.
Defendants next argue that the order for injunctive relief should not be considered part of the "verdict" for purposes of 2.403(O)(5). Thus, defendants argue that the trial court erred in enhancing the adjusted jury verdict by an unspecified value attributed to its posttrial award of injunctive relief. We disagree.
"Verdict" is defined by MCR 2.403(O)(2)(c) to include "a judgment entered as a result of a ruling on a motion after rejection of the case evaluation." The trial court's order for injunctive relief constituted part of the "verdict" because it falls under this definition. That is, it was entered as a result of a ruling on plaintiffs' motion for injunctive relief after rejection of the case evaluation. That remains the case, even though the order was entered after a trial and jury verdict. See Marketos v. American Employers Ins. Co., 465 Mich. 407, 414, 633 N.W.2d 371 (2001), (MCR 2.403[O][2] "now clarifies that decisions by the court, as well as by a jury, *158 may be considered a verdict in some instances.").
Defendants next argue that consideration of the value of equitable relief to award sanctions in this case is not "fair... under all of the circumstances." MCR 2.403(O)(5)(b). We agree, for a couple of reasons.
First, MCR 2.403(K)(3) allows case evaluators to consider claims for equitable relief ("The evaluation may not include a separate award on any claim for equitable relief, but the panel may consider such claims in determining the amount of an award."). Thus, evaluators presented with a case in which the plaintiffs seek "equitable relief" may place a value on that relief and augment the overall evaluation award accordingly. That approach makes legitimate a later comparison between the evaluation and a verdict that also includes a value for equitable relief. Defendants maintain that the case evaluation panel did not consider plaintiffs' request for injunctive relief when it issued its decision, and that certainly appears to be the case. Plaintiffs' complaint and amended complaint did not mention any request for injunctive relief, and the trial court was simply mistaken in suggesting that these pleadings were sufficiently vaguely or broadly worded to constitute such a request. Because the value of injunctive relief was not considered by the evaluators, the case evaluation in favor of plaintiffs may well have come in artificially low and, as a result, the difference between it and the verdict (which did include the value of injunctive relief) was greater than it should have been.
Further, as summarized above, the jury heard evidence and arguments regarding plaintiffs' claims for attorney fees under MCL 600.2911(7) and rendered an award of attorney fees after being properly instructed. The jury's decision in this regard was reviewed and found appropriate by the trial judge in denying plaintiffs' motion for additur. In light of that, it was not "fair ... under ... the circumstances" of this case for the trial court to later award additional attorney fees as actual costs under MCR 2.403(O)(5). Under the circumstances of this case, we conclude that the trial court erred by taking into account the value of the equitable relief it had ordered in awarding costs against defendants under MCR 2.403(O)(5).
The determination of costs in this case should have been based on the case evaluation award and adjusted jury verdict, without any consideration of the value of equitable relief. As the record is sufficient for us to determine which of the parties should be assessed costs, and which of the parties are entitled to them, we turn to that issue.[4]
We begin by noting that the trial court's imposition of costs was not based on a comparison of "the amount of the evaluation and verdict as to ... particular pair[s] of parties," as it should have been in this multiple parties case. MCR 2.403(O)(4)(a). It is necessary to determine the case evaluation award for each plaintiff and also to determine the amount of each plaintiff's award for which each defendant is liable. *159 Further, it is necessary to determine the adjusted verdict for each plaintiff and the amount of that adjusted verdict for which each defendant is liable. Then, a comparison of the evaluation award and verdict for each pair of parties can be made.
Case Evaluation Award
The case evaluators rendered a lump sum award in favor of the plaintiffs as a group in the amount of $25,000. Because there is nothing in the record to indicate otherwise, we assume that this amount was equally for the benefit of each of the five individual plaintiffs in the case at the time of the evaluation.[5] Accordingly, the evaluation award in favor of each individual plaintiff was $5,000. Further, the case evaluators determined that two of the defendants, Joyce Schmitt and Diane Rankin were liable to plaintiffs in the amounts of $17,500 and $7,500 respectively. Again, there being nothing in the record to indicate otherwise, we assume that each of these amounts was equally for the benefit of each of the five individual plaintiffs.
Thus, the case evaluation award, with respect to particular pairs of parties, was as follows:
Joyce Schmitt is liable to Kim Lindebaum in the amount of $3,500;
Joyce Schmitt is liable to James Lindebaum in the amount of $3,500;
Joyce Schmitt is liable to JoAnn Kusmierz in the amount of $3,500;
Joyce Schmitt is liable to Kerry Kusmierz in the amount of $3,500;
Joyce Schmitt is liable to M Supply Company in the amount of $3,500;
Diane Rankin is liable to Kim Lindebaum in the amount of $1,500;
Diane Rankin is liable to James Lindebaum in the amount of $1,500;
Diane Rankin is liable to JoAnn Kusmierz in the amount of $1,500;
Diane Rankin is liable to Kerry Kusmierz in the amount of $1,500; and
Diane Rankin is liable to M Supply Company in the amount of $1,500.
The case evaluators found no cause of action against defendant Ronald Schmitt and he accepted that determination.
Adjusted Jury Verdict
The jury verdict against defendants Joyce Schmitt and Diane Rankin totaled $20,000,[6] which, when adjusted to include costs and interest, MCR 2.403(O)(3), is approximately $21,196.[7] The jury also concluded that defendant Joyce Schmitt was liable for $9,000 of the $20,000 in damages (i.e., 9/20, or 45 percent, of the damages) and defendant Diane Rankin was liable for $11,000 of the $20,000 in damages (i.e., 11/20, or 55 percent, of the damages). In other words, the jury determined that, between those two defendants, Joyce Schmitt was liable for $9,538 of the adjusted verdict amount (45 percent of $21,196 is $9,538) and Diane Rankin was liable for *160 $11,658 of the adjusted verdict amount (55 percent of $21,196 is $11,658).
The jury further determined that plaintiffs James Lindebaum and Kim Lindebaum were each entitled to $10,000 of the $22,000 jury verdict and that JoAnn Kusmierz and Kerry Kusmierz were each entitled to $1,000.[8] In other words, James Lindebaum and Kim Lindebaum were each entitled to 10/22, or 45.5 percent, of the amounts for which the defendants were liable; and JoAnn Kusmierz and Kerry Kusmierz were each entitled to 1/22, or 4.5 percent, of the amounts for which defendants were liable.
Combining these determinations relative to defendants and plaintiffs, the adjusted jury verdict, with respect to particular pairs of parties, was as follows:
Joyce Schmitt is liable to Kim Lindebaum in the amount of $4,340 (45.5% of $9,538);
Joyce Schmitt is liable to James Lindebaum in the amount of $4,340 (45.5% of $9,538);
Joyce Schmitt is liable to JoAnn Kusmierz in the amount of $429 (4.5% of $9,538);
Joyce Schmitt is liable to Kerry Kusmierz in the amount of $429 (4.5% of $9,538);
Diane Rankin is liable to Kim Lindebaum in the amount of $5,304 (45.5% of $11,658);
Diane Rankin is liable to James Lindebaum in the amount of $5,304 (45.5% of $11,658).
Diane Rankin is liable to JoAnn Kusmierz in the amount of $525 (4.5% of $11,658); and
Diane Rankin is liable to Kerry Kusmierz in the amount of $525 (4.5% of $11,658).
Parties' Liability or Entitlement to Costs
Comparing the case evaluation awards and adjusted jury verdicts relative to each particular pair of parties listed above, the verdicts for Kim Lindebaum and James Lindebaum were "more favorable" to them than were the case evaluations, because the verdicts were "more than 10 percent above" the evaluations. MCR 2.403(O)(3). However, the verdicts for plaintiffs JoAnn Kusmierz and Kerry Kusmierz were more favorable to defendants Joyce Schmitt and Diane Rankin than were the case evaluations, because those verdicts were "more than 10 percent below" the evaluations. Id.
Accordingly, defendants Joyce Schmitt and Diane Rankin are liable to Kim Lindebaum and James Lindebaum for "actual costs" including reasonable attorney fees for services necessitated by the those defendants' rejection of the case evaluation. MCR 2.403(O)(6). However, JoAnn Kusmierz and Kerry Kusmierz are liable to Joyce Schmitt and Diane Rankin for the "actual costs" they incurred as the result of the Kusmierzes' rejection of the case evaluation. Id.[9]
CONCLUSION
The trial court erred when it augmented the value of the verdicts by considering the *161 injunctive relief granted to plaintiffs. Also, its comparison of the case evaluations and verdicts was not specific to the pairs of parties as required by the rules. We vacate the trial court's orders regarding actual costs. We remand this matter for further consideration and entry of orders regarding actual costs consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] We note that MCR 2.403(H)(4) specifically allows such an approach, but only where the plaintiffs are "members of a single family." Here, two of the individual plaintiffs are brother and sister, but the other two are in-laws, unrelated to each other by blood or marriage. This raises a question about the foursome's status as a "single family." Further, one of the plaintiffs, M Supply Company, a business entity, is certainly not a family member. Nonetheless, the parties stipulated plaintiffs' receiving a "lump sum" case evaluation award and no one contests that approach on appeal. Accordingly, we accept this approach for the purpose of our analysis of the issues presented, but without making further comment on its propriety.
[2] Plaintiffs' argument in this regard was based on a misconstruction of the case evaluation rules. In situations like this, where both parties have rejected the case evaluation, "a party is entitled to costs only if the verdict is more favorable to that party than the case evaluation," without any consideration of whether the verdict was "not more favorable" to the other party. MCR 2.403(O)(1).
[3] We initially note that the jurisdictional challenge raised by plaintiffs in their brief on appeal was already rejected in response to their motion to dismiss under MCR 7.211(C)(2)(c) ("the appeal is moot"), which motion was denied by our Court in November 2004. Plaintiffs argued that defendants' satisfaction of the judgment before filing their claim of appeal operated as a waiver of the right to appeal and that the appeal was moot because our Court would be unable to provide relief to the successful parties on appeal. However, because the judgment was involuntarily satisfied through a variety of garnishments, defendants did not waive their right to appeal, and therefore the appeal is not moot. See Horowitz v. Rott, 235 Mich. 369, 372, 209 N.W. 131 (1926); Becker v. Halliday, 218 Mich.App. 576, 578-580, 554 N.W.2d 67 (1996).
[4] We consider this matter on appeal because we think it provides a good illustration of how the case evaluation rules operate. Our analysis should provide some instruction to the bench and bar for later cases. However, we caution that the approach we use today is somewhat fact-specific, depending on the way the evaluation and verdict in this case were structured. Thus, while we anticipate that our analysis will provide some general principles that might be applicable in other cases, we also anticipate that other cases will require adjustments to the approach we use depending on the facts and circumstances presented.
[5] As noted earlier, the parties here stipulated a lump sum award and the court rules specifically provide for that approach in certain instances. See n 1. Nonetheless, to allow a comparison of the evaluation and verdict between "particular pair[s] of parties" as required by MCR 2.403(O)(4)(a), the lump sum award must be divided and allocated to each of the individual plaintiffs.
[6] The $2,000 liability verdict against Ronald Schmitt is not included in our analysis because he accepted the case evaluation and he cannot be liable for, or entitled to, an "actual costs" sanction.
[7] We have applied the same proportional adjustment that was used by the trial court to adjust the total $22,000 jury verdict to approximately $23,315.
[8] Because plaintiff M Supply Company was dismissed before trial, the jury returned no verdict with respect to it and it cannot be liable for, or entitled to, any "actual costs" sanction. Accordingly, we do not include it in our analysis.
[9] The record before us is not sufficient for us to determine the amounts of these "actual costs." On remand, the trial court shall determine those amounts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1976919/ | 375 N.W.2d 610 (1985)
221 Neb. 114
STATE of Nebraska, Appellee,
v.
Robert J. TAYLOR, Appellant.
No. 85-166.
Supreme Court of Nebraska.
October 25, 1985.
*612 Charles W. Balsiger of Jewell, Gatz & Collins, Norfolk for appellant.
Robert M. Spire, Atty. Gen., and Charles E. Lowe, Lincoln, for appellee.
KRIVOSHA, C.J., and WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
PER CURIAM.
Upon trial to a jury the defendant, Robert J. Taylor, was found guilty of delivering marijuana, sentenced to imprisonment for 3 to 5 years, and fined $2,000. He has appealed and contends the trial court erred in (1) the admission into evidence of certain incriminating statements; (2) the admission into evidence of a tape recording of the alleged drug transaction; (3) the failure to direct a verdict for the defendant on grounds that the evidence was insufficient to support a guilty verdict; (4) the allowance of expert opinion testimony that the substance sold was marijuana; and (5) the instruction to the jury defining marijuana and the failure to instruct that the State had the burden to prove that Taylor's acts were not statutorily excepted acts.
The evidence was such that the jury could find that the defendant sold an ounce of marijuana to an undercover agent for $70 on February 24, 1984. At the time the transaction took place, the undercover agent was equipped with a radio transmitter. The conversations between the defendant and the agent were recorded by a policeman stationed near the scene.
The defendant was arrested on June 2, 1984. While being "booked" at the police station, the defendant asked a detective, Timothy Schmitz, who had "narked him off." Schmitz testified as follows concerning that conversation:
A. Robert Taylor asked me who narked him off.
Q. And what did you respond to that question?
A. I said, "Robert, you know I can't tell you that."
Q. Then what did he say?
A. He said, "Maybe I'll find out and just waste somebody."
Q. What did you say in response to that?
A. I said, "That kind of talk will just get you in more trouble than you're already in."
Q. What did he say?
A. He said, "It can't get much worse than this."
The defendant contends that it was error to receive this testimony over objection, in the absence of proof that the defendant had been advised as to his constitutional rights. Although the defendant was in custody at the time the statements were made, he was not being questioned in regard to the crime. The booking procedure involved questioning Taylor about statistical information and physical characteristics from a form sheet but did not involve questions about the facts or circumstances of the case. It was the defendant who volunteered a question about the case.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), sets the constitutional requisites for the admissibility of in-custody statements:
[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
Miranda does not require that volunteered statements be suppressed in the absence of the warnings: "Any statement given freely and voluntarily without any compelling influences is, of course, admissible *613 in evidence." 384 U.S. at 478, 86 S.Ct. at 1630. The admissibility of an accused's statement depends upon a showing that the statement was freely and voluntarily made. State v. Robertson, 219 Neb. 782, 366 N.W.2d 429 (1985); State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985).
The trial court's findings on a motion to suppress will not be disturbed on appeal unless, given the totality of the circumstances, they are clearly wrong. State v. McCarthy, 218 Neb. 246, 353 N.W.2d 14 (1984).
Taylor was not induced or coerced into making the statements. He was not interrogated about the crime as he was being booked into jail. An in-custody statement voluntarily made without the benefit of Miranda warnings is admissible if it is not the product of interrogation. State v. Parsons, 213 Neb. 349, 328 N.W.2d 795 (1983). Detective Schmitz did not question Taylor about the crime either directly or indirectly in a manner reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). "[I]nterrogation occurs when the subject is placed under a compulsion to speak," and does not occur when a statement is made in response to a " `neutral,' `spontaneous' question, not designed to elicit a confession." State v. Lamb, 213 Neb. 498, 502, 330 N.W.2d 462, 466 (1983). The trial court did not err in admitting the statements into evidence.
Taylor's second assignment of error involves the admission of the recording of the conversation during the drug delivery. Taylor complains that the tape recording should have been excluded due to insufficient foundation and the fact that substantial portions of the tape were inaudible.
We have held that "tape recordings of relevant and material conversations are admissible as evidence of such conversations and in corroboration of oral testimony of the conversations, provided proper foundation is laid." State v. Loveless, 209 Neb. 583, 589, 308 N.W.2d 842, 846 (1981).
At trial defense counsel objected on grounds that the tape was not shown to be valid or authentic and that the speakers on the tape were not properly identified. The undercover agent testified that the defendant was the person from whom he had purchased the marijuana and that the defendant was the only male spoken to during the course of the transaction. The jury heard the agent testify and also make the introduction to the tape. This would enable the jury to discern between the two male voices on the tape. The defendant's mother's voice was identifiable because of the conversation about hair dyeing. Other voices on the tape were merely incidental and did not relate to the drug transaction.
The trial court properly admitted the tape despite its less than perfect quality. Partial inaudibility or indistinctness does not require exclusion of a sound recording unless those portions are " `so inaudible and indistinct that the jury must speculate as to what was said....' " State v. Loveless, supra at 589, 308 N.W.2d at 846. Even then, exclusion is discretionary " `unless the unintelligible portions of a tape recording are so substantial as to render the recording as a whole untrustworthy....' " Id.
In Loveless, supra at 589, 308 N.W.2d at 846-47, the admission of a partially inaudible tape was upheld where "certain material parts were audible and were recorded by the court reporter on the playback of the tapes in the courtroom...." In the present case the court reporter was able to record a substantial portion of the tape as it was played in court. Several of the statements recorded were material and corroborative in light of testimony by the cooperating individual. For example, there were statements corroborative of testimony that the defendant had only a half ounce of marijuana for sale but that he would attempt to get the other half at a place called "Papa Red's." It also contained statements corroborative of testimony that the cooperating individual purchased the first half ounce for $35, by giving Taylor $40 with $5 change back, and *614 that Taylor was given $35 prior to leaving the house to pick up another half ounce of marijuana. Similarly, the tape corroborates testimony that the two half ounces purchased from Taylor were combined upon his arrival back at the house. In view of the support which the recording gave to the agent's testimony, it cannot be said that the tape was so untrustworthy as to require exclusion. See United States v. Jones, 540 F.2d 465 (10th Cir.1976), cert. denied 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977). The trial court did not abuse its discretion in admitting the tape.
The defendant challenges the sufficiency of the evidence, claiming that, without the tape recording, there is only the uncorroborated testimony of the cooperating individual to prove the delivery of a controlled substance. Neb.Rev.Stat. § 28-1439.01 (Cum.Supp.1984) provides that "[n]o conviction for an offense punishable under sections 28-401 to 28-438 shall be based solely upon the uncorroborated testimony of a cooperating individual."
Taylor was convicted under Neb.Rev. Stat. § 28-416(1)(a) (Reissue 1979) for knowingly or intentionally delivering the controlled substance of marijuana. In addition to the undercover agent's testimony, a State Patrol investigator testified that before the agent approached Taylor he had no marijuana in his possession and that upon his return he possessed an ounce of the substance. While the investigators monitoring and surveying the scene did not visually observe the deliveries which took place inside Taylor's home, they were able to corroborate the agent's testimony about Taylor's and his own movements. There was additional support for his testimony in photographs taken by one of the investigators and in the defendant's statements to Detective Schmitz.
We have previously held that the statutory precursor identical to § 28-1439.01 "only requires that a conviction be based on something more than only a cooperating individual's testimony." State v. Beckner, 211 Neb. 442, 446, 318 N.W.2d 889, 892 (1982). In Beckner we expressly rejected an argument that then Neb.Rev. Stat. § 28-439 (Reissue 1979) required that a cooperating individual be corroborated on every element of the crime. Instead, we held that "corroboration is sufficient if the witness is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue." Beckner, supra at 447, 318 N.W.2d at 893. The testimony and pictorial evidence supplied by the investigators, as well as the defendant's admissions, provided the necessary corroboration, with or without the admission of the sound recording.
A guilty verdict will not be reversed by this court on appeal unless the evidence is so lacking in probative force that it is insufficient as a matter of law. State v. Ruzicka, 218 Neb. 594, 357 N.W.2d 457 (1985). Considering the undercover agent's testimony, the corroborating testimony of the three law enforcement officers who monitored and maintained surveillance of the agent and Taylor at the time of the transaction, the 26 photographs taken at or near the time of the transaction, the tape recording of the transaction, and the defendant's admissions, it cannot be said that the trial court erred in refusing to direct a verdict for the defendant.
Similary, there is no merit to the defendant's contention that expert opinion testimony identifying the substance obtained from Taylor as marijuana was improperly admitted. A general foundational objection does not reach the qualifications of an expert witness. State v. Bideaux, 219 Neb. 718, 365 N.W.2d 830 (1985). In the present case, as in Bideaux, defense counsel made a general foundational objection at trial, and on appeal attempts to challenge the expert's qualifications as a witness. This court will not consider issues for the first time on appeal if not properly raised in the pleadings or litigated at trial. Armstrong v. Hartford Life Ins. Co., 219 Neb. 128, 361 N.W.2d 511 (1985). As we stated in Bideaux, supra, 219 Neb. at 721, 365 N.W.2d at 832, the logic behind requiring a specific qualification objection *615 at trial is that "both the court and opposing counsel are entitled to know that the objection goes to the qualifications of the witness as an expert rather than to the factual foundation for the opinion."
Even if the qualification issue had been properly preserved at trial, we would find no merit in the defendant's argument. The expert who testified at trial was a forensic drug chemist. His training and background included: a bachelor of science degree in chemistry and microbiology; 8 years of experience as a forensic drug chemist, analyzing substances to determine the presence of controlled substances; 3 to 4 months of intensive training by other chemists in the State Patrol laboratory; the performance of 9,000 to 10,000 different substance analyses to test for controlled substances content; and the performance of 5,000 to 6,000 substance analyses to test for marijuana content. After presenting this background and detailed descriptions of the tests run on the substances, the witness was permitted to testify that the substance obtained from the defendant was marijuana. There was adequate foundation for the testimony.
The defendant's final assignment of error pertains to the trial court's jury instructions on the material elements of the crime and on the definition of marijuana. These claims are also without merit.
Section 28-416(1)(a) provides in part that "[e]xcept as authorized by this article, it shall be unlawful for any person knowingly or intentionally: (a) To ... deliver... a controlled substance." The defendant argues that because the State has the burden to prove each essential element of the crime beyond a reasonable doubt, the jury should have been instructed that the State had to prove that his acts were not specifically excepted by the statute. The trial court correctly refused to so instruct the jury.
Neb.Rev.Stat. § 28-432(1) (Reissue 1979) of the Uniform Controlled Substances Act, Neb.Rev.Stat. § 28-401 et seq. (Reissue 1979 & Cum.Supp.1984), provides:
It shall not be necessary for the state to negate any exemption or exception set forth in this article in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under the provisions of this article, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.
In a similar situation we held that the State did not bear the burden of proof on the issue of exemptions to a charge of unlawful sales of unregistered securities. State v. Fries, 214 Neb. 874, 337 N.W.2d 398 (1983). The statutes applicable in Fries included a provision like § 28-432 which placed the burden of proving an exemption upon the person claiming it. Because there was no evidence in the record to suggest that the securities involved fell within the applicable exemptions, the trial court had properly refused to give the requested instruction.
Taylor argues that the record is devoid of evidence showing that he was not within a statutory exception. It is also devoid of any evidence to suggest that his acts were within an exception. The trial court correctly refused to instruct on the exceptions.
The defendant also requested that the jury be instructed as to the technical definition of marijuana found in § 28-401(14) (Cum.Supp.1984). The court declined to do so and instead instructed that "[m]arijuana is a controlled substance under the laws of Nebraska at the time alleged in the Information." We addressed a comparable question in State v. Ambrose, 192 Neb. 285, 220 N.W.2d 18 (1974). In that case the defendant, convicted on controlled substances counts, complained that the court had failed to instruct that "cocaine does not include de-cocainized coca leaves or extractions which do not contain cocaine or ecogine [sic]." Id. at 289, 220 N.W.2d at 21. In affirming the trial court's refusal to give this instruction, we noted that the evidence at trial presented no factual issue as to whether the substances involved were anything but cocaine. We concluded that if the requested *616 instruction had been given, the jury would have had to engage in speculation and conjecture in the absence of relevant evidence. A tendered instruction, otherwise appropriate, which either misstates the law or tends to confuse or mislead the jury should not be given by the trial court. State v. Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980).
In the present case there was expert opinion testimony that the substance obtained was marijuana. Cross-examination of the expert did not refute the opinion, nor did the defendant present independent evidence tending to do so.
Reading the instructions as a whole, we conclude that the law was fairly presented and the jury was not misled. State v. Perkins, 219 Neb. 491, 364 N.W.2d 20 (1985). There was no prejudicial error.
The judgment is affirmed.
AFFIRMED.
BOSLAUGH, J., participating on briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345598/ | 789 P.2d 656 (1990)
309 Or. 510
Don AUGHENBAUGH, Petitioner,
v.
Barbara ROBERTS, Secretary of State, Respondent.
SC S36843.
Supreme Court of Oregon, In Banc.
Argued and Submitted February 13, 1990.
Decided March 27, 1990.
Reconsideration Denied April 18, 1990.
*657 Paul R. Romain, of Preston, Thorgrimson, Shidler, Gates & Ellis, Portland, argued the cause and filed the petition for petitioner.
John T. Bagg, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the Answering Memorandum were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.
UNIS, Justice.
In this original proceeding, petitioner challenges a revised ballot title certified by the Attorney General to the Secretary of State. We review the ballot title for "substantial compliance" with the requirements of ORS 250.035[1] and 250.039.[2] ORS 250.085(4). Pursuant to ORS 250.067(1), petitioner filed with the Secretary of State timely written comments concerning the Attorney General's original certified ballot title. Petitioner is, therefore, entitled to bring this proceeding. ORS 250.085(2) and (5). We modify the challenged ballot title.
The Attorney General certified the following ballot title to the Secretary of State:
"INCREASES BEER, LIQUOR TAXES TO FUND ALCOHOLISM AND DRUG PROGRAMS
"QUESTION: Shall beer and liquor taxes be increased and dedicated to fund *658 state and county alcoholism and drug services programs?
"[SUMMARY]: Increases beer tax from $2.60 to $6.60 per barrel, alcoholic beverages tax from 65¢ to 90¢ per gallon. Annual increases for inflation. Retail liquor price must be at least 115% of wholesale cost. Alcohol taxes dedicated to chemical dependency programs. $25 million of taxes go biennially to build $250 million Alcoholism and Drug Services Trust Fund. Remainder plus trust fund interest goes to Alcoholism and Drug Services Fund. Fund distributes 60% to state, 40% to counties."
This court's role in reviewing a ballot title and the standards that we apply in doing so have been stated numerous times by this court. See, e.g., Nelson v. Roberts, 309 Or. 499, 789 P.2d 650 (1990). We will not, therefore, restate them in this opinion, except as may be necessary in our discussion of the issues raised by petitioner.
Petitioner claims that the ballot title is deficient in three respects. He contends that (1) the tax increases listed are neither accurate nor complete; (2) the statement that "[r]etail liquor price must be at least 115% of wholesale cost" is inaccurate, incomplete and misleading; and (3) the ballot title fails to mention the initiative measure's major effect, which petitioner asserts is "to take alcoholic beverage tax money outside of the state's general fund and dedicate those funds to particular listed purposes."
Petitioner proposes the following ballot title:
"INCREASES ALCOHOL TAXES, FUNDS CHEMICAL DEPENDENCY PROGRAMS OUTSIDE GENERAL FUND
"QUESTION: Shall alcohol taxes be increased to fund state and county chemical dependency programs outside of the state's general fund?
"[SUMMARY]: Increases beer barrelage tax from $2.60 to $6.60, wine gallonage tax from 67¢ to 92¢, fortified wine gallonage tax from 77¢ to $1.02. Increases taxes yearly for inflation. Distilled spirits retail price mark-up at least 115% over wholesale, plus state administration expenses. Removes alcohol taxes from the state's general fund. Creates $250 million Alcoholism and Drug Services Trust Fund. Interest on Fund plus most alcohol tax money goes to state and counties for chemical dependency programs. Some money goes unrestricted to cities and counties."
The parties agree that the proposed initiative measure would increase the tax on "alcoholic beverages" and "malt beverages," as those terms are defined in ORS 473.010(1) and (3). The parties agree that "beer" is an appropriate shorthand description of "malt beverages."[3] They also agree that "alcoholic beverages," under ORS 473.010(1),[4]generally has reference to "wine," which contains more than one-half of one percent of alcohol by volume and not more than 14 percent of alcohol, and "fortified wine," which contains more than 14 percent of alcohol by volume and not more than 21 percent of alcohol by volume. See ORS 473.010(1); ORS 473.030(2), (3) and (4).[5] Moreover, petitioner *659 and respondent agree that the proposed measure, if approved by Oregon voters, would increase the tax on beer from $2.60 to $6.60 per barrel, as the Summary states. See ORS 473.030(1) and Section 2(1) of the measure.
Petitioner's first disagreement with the Attorney General's ballot title is with the language in its Summary that states that the measure "[i]ncreases * * * alcoholic beverages tax from 65¢ to 90¢ per gallon." Petitioner also disagrees with respondent's suggestion that that language be amended to read "[i]ncreases * * * base wine tax from 65¢ to 90¢ per gallon." Neither the language in the Summary nor that suggested by respondent is accurate, petitioner argues, because no "alcoholic beverage" is presently taxed at 65¢ per gallon, and under the proposed measure no "alcoholic beverage" would be taxed at 90¢ per gallon. We agree.
As noted previously, under ORS 473.010(1), "alcoholic beverages" includes both "wine" and "fortified wine." Currently, both wine and fortified wine are taxed at a rate of 65¢ per gallon, ORS 473.030(2), with an additional 2¢ per gallon tax, ORS 473.030(4). An additional tax of 10¢ per gallon is imposed on fortified wine. ORS 473.030(3). Presently, the total tax imposed on wine, therefore, is 67¢ per gallon, and the total tax imposed on fortified wine is 77¢ per gallon. Respondent does not dispute the accuracy of these figures.
Although the proposed initiative measure would amend only that portion of the tax authorized by ORS 473.030(2) on "alcoholic beverages" (wine and fortified wine), the additional 2¢ per gallon tax on wine and fortified wine authorized by ORS 473.030(4) will continue to be imposed, as will the additional 10¢ per gallon tax on fortified wine. The effect of the measure, if approved by the electorate, is, as petitioner states, to increase the tax on wine from 67¢ to 92¢ per gallon and the tax on fortified wine from 77¢ to $1.02 per gallon.
The tax increases listed in the Attorney General's ballot title's Summary or in respondent's suggested amendment thereto are neither accurate nor complete. We conclude, therefore, that the Attorney General's ballot title should be modified to state the actual taxes, as described above, that would be imposed on wine and fortified wine if the measure becomes law.
The Attorney General's ballot title's Summary states that "[r]etail liquor price must be at least 115% of wholesale cost." Petitioner claims that this sentence is inaccurate, incomplete, and misleading.
Section 6 of the proposed initiative measure reads:
"On January 1, 1991, the Oregon Liquor Control Commission shall cause the sale price of alcoholic liquors sold at retail by the commission to be not less than 115 percent over the wholesale cost, including commission costs." (Emphasis added.)
Both parties acknowledge in supplemental information furnished to this court that Section 6 of the measure would result in an increase in the retail sale price of liquor. Petitioner argues that under Section 6 of the measure, "the state would have to take the wholesale cost for the product, add in the approximately 20% state costs for handling the product, and then set the retail price at 115% over that combined cost. The actual retail mark-up would be closer to 135% or greater." Respondent, on the other hand, claims that Section 6 of the measure does not provide that the wholesale cost is to be increased by 115% and then increased again by commission costs. The phrase "including commission costs," respondent asserts, modifies the words "wholesale cost," and the wholesale cost includes commission costs, and it is this total wholesale cost which is to be increased by at least 115% before retail sale.
*660 If the measure is enacted into law, this court ultimately may be required to decide the meaning and significance of the language "including commission costs." It would be inappropriate for this court to do so in the ballot title's Summary. See Sampson et al. v. Roberts, 309 Or. 335, 340, 788 P.2d 421 (1990). Whatever the words "including commission costs" mean in the context of Section 6 of the measure, the measure's actual language should be used in the Summary, absent a compelling reason to the contrary. Id. at 340, 788 P.2d 421. We conclude, therefore, that the Summary should be modified to refer to the inclusion of commission costs, as well as to reflect increases in liquor retail sale prices.
Petitioner next contends that the ballot title's Summary fails to mention the major effect of the proposed initiative measure, which he asserts is "to take alcoholic beverage tax money outside of the state [G]eneral [F]und and dedicate those funds to particular listed purposes." We disagree.
The major effect of the proposed measure is an increase in beer and "alcoholic beverages" (wine and fortified wine) taxes, an increase in the retail sale price of liquor, and a dedication of most of those revenues to fund state and county chemical dependency programs. It is true that under the measure revenues derived from beer, wine and fortified wine taxes and from the sale of liquor, which are now deposited in the state General Fund, would no longer be deposited there, but that is not the measure's major effect. Rather, the deposit of such revenues in a fund other than the state General Fund is a fiscal consequence of bringing about the measure's major effect. Nevertheless, the reduction of state General Fund revenues is an important fiscal consequence of the measure, of which Oregon voters should be informed in the Summary's summary of the measure. See Nelson v. Roberts, supra, 309 Or. at 503, 789 P.2d at 653, wherein this court made a similar ruling concerning a ballot title's Summary for an initiative measure proposing an increase in cigarette and tobacco taxes and a dedication of those tax revenues to a particular fund.
Substantial compliance with ORS 250.035(1)(c) requires a modification of the Summary to inform the voters that a reduction in state General Fund revenues would result from the measure's passage.
Although each of petitioner's challenges to the Attorney General's ballot title appear to be principally directed at the Summary, his arguments have consequences for all components, viz, the Caption, the Question, and the Summary. We will, therefore, examine the Caption and the Question in the Attorney General's ballot title in the context of petitioner's arguments, which we discussed above.
The Caption in the Attorney General's ballot title reads: "INCREASES BEER, LIQUOR TAXES TO FUND ALCOHOLISM AND DRUG PROGRAMS." Petitioner's proposed Caption reads: "INCREASES ALCOHOL TAXES, FUNDS CHEMICAL DEPENDENCY PROGRAMS OUTSIDE GENERAL FUND." Neither Caption substantially complies with the requirement that the Caption "reasonably identifies the subject of the measure." ORS 250.035(1)(a); ORS 250.085(4).
The proposed measure, if enacted into law, would not result in a tax increase on liquor, as suggested by each of the parties' Caption. Rather, as the parties acknowledge, it would result in an increase in the retail sale price of liquor. Moreover, the Attorney General's Caption makes no mention of the measure's tax increase on wine.[6] The reference in petitioner's Caption to the state General Fund suggests that the fiscal effect the measure will have on that particular fund is the subject of the measure. It is not. The reduction of state General Fund revenues that will result from the measure's passage is, as stated previously, a fiscal consequence of bringing *661 about the measure's major effect. We modify the Attorney General's ballot title's Caption to read:
"INCREASES BEER, WINE TAXES, LIQUOR PRICES; FUNDS CHEMICAL DEPENDENCY PROGRAMS"[7]
Neither the Question in the Attorney General's ballot title nor the Question in petitioner's proposed ballot title are in substantial compliance with the requirement that the Question "plainly phrase[] the chief purpose of the measure * * *." ORS 250.035(1)(b); ORS 250.085(4). As we observed in our discussion of the Caption, liquor taxes will not be increased if the measure becomes law; rather, an increase in the retail price of liquor will result. Additionally, the ballot title's Question is silent on the measure's tax increase on wine.[8] The reference in petitioner's Question to the state General Fund is improper. The reduction in state General Fund revenues would be a fiscal consequence of the measure's passage, not its chief purpose.
Based on the foregoing discussion, we modify the Caption, the Question, and the Summary in the Attorney General's ballot title and certify the following ballot title to the Secretary of State:
INCREASES BEER, WINE TAXES, LIQUOR PRICES; FUNDS CHEMICAL DEPENDENCY PROGRAMS
QUESTION: Shall beer and wine taxes and liquor prices be increased and dedicated to fund state and county chemical dependency programs?
[SUMMARY]: Increases beer tax from $2.60 to $6.60 per barrel, wine tax from 67¢ to 92¢ per gallon, fortified wine from 77¢ to $1.02 per gallon. Annual inflation tax increases. Increases retail liquor prices, must be at least 115% over wholesale costs, including commission costs. Taxes, sale revenues dedicated to chemical dependency programs. $25 million biennially to build $250 million Alcoholism and Drug Service Trust Fund. Remainder plus trust fund interest goes to alcoholism, drug fund. Fund distributes: 60% state, 40% counties. Reduces General Fund revenues.
Ballot title certified as modified.
Pursuant to ORAP 11.30(10) and notwithstanding ORAP 9.25(1), this certified ballot title will become effective when the appellate judgment issues. The State Court Administrator shall issue the appellate judgment 10 days from the date of this decision, unless a petition for reconsideration is both filed with and physically received by the Office of the State Court Administrator within seven days of the date of this decision. A timely petition for reconsideration will stay issuance of the appellate judgment until the court acts on all timely petitions for reconsideration. If the court denies the petition, the Administrator shall issue the appellate judgment the next judicial day after denial of the petition(s) for reconsideration.
FADELEY, Justice, specially concurring.
I concur that the ballot title should be modified. However, I do not agree that the court's proposed modification goes far enough to accurately or adequately advise the voters of the chief purpose, true subject or major effect of this measure. The inaccurate information which the modified ballot title will provide results from the title's failure to expressly notice that all existing liquor revenues, derived from the existing level of liquor prices and beverage excises as well as the proposed increase, will be lost to the general fund under the provisions of the measure.
Because these lost revenues exceed the amount to be raised by the proposed revenue increases from higher prices and gallonage rates, I do not concur with leaving the voters in the dark. I am not content to describe only the tail on the dog when the voters are being asked to approve both dog and tail in a single vote.
Presently, 56 percent of net revenues from liquor and alcoholic beverages go into *662 the state general fund, 34 percent go to cities and 10 percent go to counties. ORS 471.810. In determining the net revenues, the cost of operation of the Oregon Liquor Control Commission are deducted and paid to the tune of about $47 million dollars for the biennial budget period. The proposed measure continues this deduction by confirming the provisions of ORS 471.805.
The measure removes all 56 percent of the liquor-related net revenues from the state general fund and may also shift more of the impact of the deduction for liquor-control administrative costs onto the general fund than it now bears. The former loss would equal $56.5 million if the measure were in full effect for the current budget period. See 1989-91 Adopted Budget 9 (Schedule C General Fund Revenues).
The combined effect of this measure and its companion involving cigarette and tobacco taxes is discussed in the specially concurring opinion in Nelson v. Roberts, 309 Or. 499, 789 P.2d 650 (1990). That opinion also more fully discusses the problem with the majority analysis in these companion measures.
VAN HOOMISSEN, J., joins this specially concurring opinion.
NOTES
[1] ORS 250.035(1) provides:
"The ballot title of any measure to be initiated or referred shall consist of:
"(a) A caption of not more than 10 words which reasonably identifies the subject of the measure;
"(b) A question of not more than 20 words which plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on the measure; and
"(c) A concise and impartial statement of not more than 85 words summarizing the measure and its major effect."
[2] Under ORS 250.039, a ballot title must comply with a readability standard set by the Secretary of State "to the fullest extent practicable consistent with the requirements of impartiality, conciseness and accuracy." Reed v. Roberts, 304 Or. 649, 652, 748 P.2d 542 (1988). Petitioner does not challenge the ballot title's compliance with ORS 250.039.
[3] We agree with the parties that the word "beer" is more meaningful to the voters than the statutory phrase "malt beverages." We have, therefore, employed the word "beer" in lieu of "malt beverages" throughout the ballot title we certify as modified.
[4] ORS 473.010(1) provides:
"`Alcoholic beverages' means and includes any fortified wine or similar fermented vinous liquor and fruit juice, or other fermented beverage fit for beverage purposes, containing more than one-half of one percent of alcohol by volume and not more than 21 percent of alcohol by volume."
[5] ORS 473.030 provides in part:
"* * * *
"(2) A tax hereby is imposed upon the privilege of engaging in business as a manufacturer or as an importing distributor of alcoholic beverages at the rate of 65 cents per gallon on all such beverages.
"(3) In addition to the tax imposed by subsection (2) of this section, alcoholic beverages containing more than 14 percent of alcohol by volume and not more than 21 percent of alcohol by volume shall be taxed at 10 cents per gallon.
"(4) In addition to the taxes imposed by subsections (2) and (3) of this section, alcoholic beverages containing not more than 21 percent of alcohol by volume shall be taxed an additional two cents per gallon. Notwithstanding any other provision of law, all moneys collected by the commission pursuant to this subsection shall be paid into the Wine Advisory Board Account established under ORS 576.765.
"* * * *."
[6] Although we concluded that the Summary should use the terms "wine" and "fortified wine" in lieu of the statutory language "alcoholic beverages," we find that because of word limitations, only the term "wine" should be used in the Caption and Question components of the ballot title.
[7] See, supra, note 3.
[8] See, supra, note 6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345609/ | 487 S.E.2d 827 (1997)
Yvette P. TUCKER and Larry Tucker, Plaintiffs-Appellants,
v.
Dr. Paul J. MEIS, and North Carolina Baptist Hospitals, Defendants-Appellees.
No. COA96-1293.
Court of Appeals of North Carolina.
August 5, 1997.
*828 Marsha C. Hughes Grayson, Salisbury, for plaintiffs-appellants.
Wilson & Iseman, L.L.P. by G. Gray Wilson and Tamura D. Coffey, Winston Salem, for defendants-appellees.
WYNN, Judge.
Plaintiffs, Yvette P. Tucker and her husband, Larry Tucker, brought this medical malpractice action to recover for an allegedly negligently repaired episiotomy performed on Mrs. Tucker following child birth in Winston-Salem, North Carolina.
At trial, plaintiffs presented two expert witnesses: An OB-GYN specialist licensed in Virginia and Tennessee who had been practicing in Tennessee and Mrs. Tucker's treating psychologist. After finding that plaintiffs failed to present competent medical testimony establishing the standard of care or defendants' breach thereof, the trial court granted directed verdict in defendants' favor. Plaintiffs appeal.
Although plaintiffs raise several issues on appeal, only one need be addressed by us: Whether the trial court erred by excluding the testimony of their medical expert as to the standard of care. We answer: No, and therefore affirm the trial court's order granting directed verdict to defendants.
Plaintiffs contend that although their medical expert, Dr. Tasker, testified that he was familiar with the standard of care in North Carolina, the trial court improperly sustained objections when counsel asked him to testify as to what that standard was and whether it was breached by defendants. They argue that since the trial court based its directed verdict on plaintiffs' failure to establish the standard of care and defendants' breach, this *829 error was prejudicial and warrants a new trial. We disagree.
N.C. Gen.Stat. § 90-21.12 prescribes the relevant standard of care in a medical malpractice action"the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action." (emphasis added). In Page v. Wilson Memorial Hospital, 49 N.C.App. 533, 535, 272 S.E.2d 8, 10 (1980), we said: "By adopting the `similar community' rule in G.S. 90-21.12 it was the intent of the General Assembly to avoid the adoption of a national or regional standard of care for health providers...."
After reviewing Dr. Tasker's testimony in its entirety, we find that the record indicates he failed to testify in any instance that he was familiar with the standard of care in Winston-Salem or similar communities. Although Dr. Tasker testified that he was familiar with the standard of care in North Carolina, he failed to make the statutorily required connection to the community in which the alleged malpractice took place or to a similarly situated community. Notably, we agree with plaintiffs that the phrasing of the questions used to elicit the standard of care need not follow § 90-21.12 verbatim; to so require would improperly place form over substance. However, the questions asked must elicit the relevant standard of care as set out in that statute. Moreover, while we recognize that "changes in the rural-urban population pattern of the country and changes in medical education, training, and communication have led to greater standardization of medical practices," Wiggins v. Piver, 276 N.C. 134, 140, 171 S.E.2d 393, 397 (1970), N.C.G.S. § 90-21.12 mandates that the relevant standard of care is that of the community where the injury occurred (or similar communities) and not that of the state as a whole. See Dailey v. North Carolina State Bd. of Dental Exmrs., 60 N.C.App. 441, 299 S.E.2d 473, rev'd on other grounds, 309 N.C. 710, 721, 309 S.E.2d 219, 225 (1983) (noting that "[i]t is clear from the wording of this statute that the test is not that of a statewide standard of health care."). This community standard allows for consideration of the effect that variations in facilities, equipment, funding, etc., throughout the state might have on the standard of care.
In sum, the problem with Dr. Tasker's testimony was not that he had not practiced in North Carolina; rather, it was his failure to testify that he was familiar with the standard of care in Winston-Salem or similar communities. Without such testimony, Dr. Tasker's opinion as to a standard of care for the State of North Carolina and whether defendants met that standard was irrelevant. The plain language of N.C.G.S. § 90-21.12 requires this result; therefore, we must hold that the trial court correctly sustained defendants' objections to Dr. Tasker's testimony.
Our holding makes it unnecessary to address plaintiffs' remaining issues. Accordingly, we affirm the trial court's order granting directed verdict for defendants.
Affirmed.
LEWIS and JOHN C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345615/ | 789 P.2d 370 (1990)
Jackie F. CHRISMAN, Appellant,
v.
STATE of Alaska, Appellee.
No. A-2998.
Court of Appeals of Alaska.
March 23, 1990.
Craig S. Howard, Asst. Public Defender and John B. Salemi, Public Defender, Anchorage, for appellant.
Maurice McClure, Assistant District Attorney, Dwayne W. McConnell, Dist. Atty., Anchorage and Douglas B. Baily, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
BRYNER, Chief Judge.
Jackie F. Chrisman appeals as excessive a sentence imposed by Superior Court Judge Karl S. Johnstone upon revocation of Chrisman's probation. We affirm.
Chrisman was convicted in 1987 after pleading no contest to two counts of misconduct involving a controlled substance in *371 the fourth degree (obtaining dilaudid, a schedule 1A controlled substance, by use of a forged prescription). The offenses are class C felonies. Two additional charges against Chrisman were dismissed in return for her plea.
Superior Court Judge S.J. Buckalew, Jr., sentenced Chrisman, a first felony offender, to a total term of four years with all but 180 days suspended. As a condition of probation, Judge Buckalew ordered Chrisman to complete the Akeela House substance abuse treatment program.
Upon release from jail, Chrisman entered Akeela House. She left the program without authorization several days later. As a result, the state petitioned to revoke Chrisman's probation. Despite finding that Chrisman had violated the conditions of her probation, Judge Buckalew allowed her to continue on probation on condition that she enter and complete the Clitheroe Center's Transitional Care Unit. Chrisman was terminated from that program, however, after admitting continued use of opiates.
The state again petitioned to revoke Chrisman's probation. While released on bond pending disposition of the petition, Chrisman was convicted of shoplifting. She appeared before Superior Court Judge Karl S. Johnstone on the petition. Judge Johnstone imposed 90 days of the original suspended sentence and ordered Chrisman to continue on probation.
Shortly after completing her 90-day term and being reinstated to probation, Chrisman failed to submit urine samples for testing and again committed shoplifting. The state petitioned to revoke her probation for a third time.
A disposition hearing was held on the new petition on April 14, 1989, before Judge Johnstone. At the time of the hearing, Chrisman had served slightly less than one year on her original charges. Judge Johnstone revoked Chrisman's probation and sentenced her to serve two additional years of incarceration. Chrisman's total sentence thus amounted to slightly less than three years' imprisonment.
On appeal, Chrisman contends that the sentence is excessive for a first felony offender convicted of class C felonies. She notes that under Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), a sentence more favorable than the two-year presumptive term for a second felony offender would normally be required in the absence of substantial aggravating factors or extraordinary circumstances.
In Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986), however, this court recognized that, when a history of probation violations establishes a person's poor prospects for rehabilitation, that fact may be deemed an extraordinary circumstance justifying the imposition of a sentence in excess of the Austin limits. Nevertheless, the fundamental concern of Austin that first felony offenders not receive harsher treatment than similarly situated second felony offenders continues to apply when a first offender is sentenced following revocation of probation. See, e.g., Luepke v. State, 765 P.2d 988 (Alaska App. 1988).
The relevant question in such cases is whether the totality of the circumstances upon revocation of probation would have justified a sentence in excess of the Austin limits if known when the original sentence was imposed. Luepke, 765 P.2d at 990-91. Before finding that an offender's probation violations justify a total sentence exceeding the applicable presumptive term for a second felony offender, the sentencing court must conclude that the offender's poor conduct on probation, when viewed in conjunction with all of the originally available sentencing information, renders the case even more serious and therefore deserving of even greater punishment than the case of a typical second felony offender committing a typical offense of the same class. The sentence ultimately imposed must be justified under the sentencing criteria articulated in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). Luepke, 765 P.2d at 991.
In the present case, before imposing sentence, Judge Johnstone considered not only Chrisman's poor record on probation but also the seriousness of her original *372 offenses and the lengthy history of drug-related difficulties that led to her original offenses. Based on the totality of the circumstances, Judge Johnstone found that Chrisman posed an ongoing danger to the community: "Not a high-grade menace but a low-grade menace. You're a danger to the public because you commit a lot of violations and commit crimes and you continue taking drugs which leads to this."
Judge Johnstone carefully reviewed the Chaney sentencing criteria and concluded that a substantial sentence of imprisonment was necessary to allow Chrisman an opportunity for rehabilitation in a confined setting, to protect the community, to deter Chrisman, and to express community condemnation. While implicitly recognizing that the Austin limit would call for a total sentence of less than two years to serve, Judge Johnstone specifically found that Chrisman's poor performance on probation and her continued drug use would have amounted to an exceptional circumstance had they been known at the time of the original sentencing. The judge nevertheless concluded that Chrisman's original offenses were not sufficiently serious to justify imposition of the full remaining period of suspended imprisonment. Accordingly, Judge Johnstone decided to sentence Chrisman to a term of two years in addition to the time that she had previously served.
The procedures followed by Judge Johnstone in imposing Chrisman's sentence comply with the requirements established in Witt and Luepke. There appears to be nothing particularly mitigated about Chrisman's original offenses. Chrisman was convicted of two offenses involving separate incidents. Moreover, two additional similar counts were dismissed in return for Chrisman's plea. The offenses themselves involved the obtaining of class 1A controlled substances, opiates, by use of forged prescriptions.
At the time of the convictions, Chrisman had a substantial history of misdemeanor convictions. Moreover, as a child, she had been adjudicated a delinquent and had spent substantial periods of time in various institutions. Chrisman also had a long-term problem with drug abuse and had failed in at least one prior attempt to complete the Akeela House program.
In the time since Chrisman's conviction, she has repeatedly violated the conditions of her probation. Chrisman has persisted in using opiates and has continued to violate the law. Despite repeated opportunities for treatment, Chrisman has failed to demonstrate any serious interest in rehabilitation. And despite jail sentences of 90 and 180 days, Chrisman has apparently not been deterred. Even so, Judge Johnstone did not impose the full period of suspended incarceration.
Under the totality of the circumstances, there is ample evidence to support the sentencing court's conclusion that a substantial additional period of incarceration was warranted upon revocation of Chrisman's probation. Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345596/ | 789 P.2d 663 (1990)
309 Or. 633
In re Complaint As to the Conduct of Barbara A. RECKER, Accused.
OSB 87-116, 88-45; SC S36670.
Supreme Court of Oregon.
Submitted on Record and Brief February 8, 1990.
Decided April 3, 1990.
Susan K. Roedl, Asst. Disciplinary Counsel, Oregon State Bar, Lake Oswego, filed the petition on behalf of the Oregon State Bar.
No appearance contra.
PER CURIAM.
In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) filed a complaint against lawyer Barbara Ann Recker (the accused) on May 4, 1988, and an amended complaint on April 26, 1989, alleging neglect of legal matters entrusted to her by two clients, intentional failure to carry out a contract of employment entered into with a client for professional services, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and failure to cooperate with disciplinary investigations. Although the amended complaint was personally served on the accused, the accused did not file an answer, appear before the Trial Panel or otherwise offer a defense. A hearing was held on August *664 25, 1989. The Trial Panel found the accused in default and proceeded to the determination of the charges. State Bar Rules of Procedure, Rule 5.8.
The Trial Panel found the accused guilty of all of the charges and ordered that the accused be suspended from the practice of law for a period of six months and one day. We review this decision as required by ORS 9.536(2).[1] The accused filed no brief and made no other appearance in this court. The Bar filed a brief urging this court to adopt the Trial Panel's findings of fact and conclusions of law, with one exception,[2] but to enhance the sanction by disbarring the accused. We review de novo upon the record presented to the Trial Panel. ORS 9.536(3).[3]
DISCIPLINARY RULE VIOLATIONS
A. The Johnson Matter
On June 3, 1987, the accused was retained by an elderly woman, Alberta M. Johnson (Johnson), to prepare a will. Johnson gave the accused several documents concerning funeral arrangements, including her existing will, and paid the accused $100 in advance for preparation of the new will. The accused never prepared Johnson's will or contacted Johnson again. Johnson repeatedly telephoned the accused's office. Although Johnson was assured by the person answering the telephone that the accused was receiving her messages, the accused failed to return the calls. In October 1987, Johnson retained new counsel to represent her and sent a letter of complaint to the Oregon State Bar. Johnson never recovered her original will, her documents, or her $100.
The uncontroverted evidence is clear and convincing that the accused violated Oregon State Bar Code of Professional Responsibility Disciplinary Rules DR 6-101(B) and DR 7-101(A)(2). DR 6-101(B) commands that "[a] lawyer shall not neglect a legal matter entrusted to the lawyer." DR 7-101(A)(2) forbids a lawyer to intentionally "[f]ail to carry out a contract of employment entered into with a client for professional services * * *." The accused's failure to respond to Johnson's efforts to contact her, her unexplained failure to take action on an apparently simple legal matter, and her ignoring Johnson's request for return of documents are violations of these disciplinary rules. We affirm the Trial Panel's finding that the accused violated DR 6-101(B) and DR 7-101(A)(2) in the Johnson matter.
B. The Stricker Matter
On February 11, 1988, the accused was appointed by the Multnomah County District Court to represent an indigent defendant, Philip Stricker (Stricker) on a criminal charge. While Stricker's criminal trial was pending, he was released to the Burnside Projects Correction Case Management Program (Burnside Projects). In cooperation with the Multnomah County corrections office, Burnside Projects provides third-party supervision of accused persons released into the community in order to assure that defendants return to court for all necessary proceedings. The accused was notified in writing that Burnside Projects was monitoring Stricker. The program's director testified that Burnside Projects normally learns of a defendant's court date from the defendant's lawyer. Although Stricker did not have a home where he could be contacted, Burnside Projects' staff monitored his whereabouts by requiring that Stricker check in with them several *665 times a week. On 12 occasions from February 17, 1988, through April 18, 1988, Burnside Projects' case management staff attempted to reach the accused by telephone and left messages indicating that they were calling on behalf of Stricker. The accused did not return any of these calls. The accused did not advise Burnside Projects that Stricker was required to appear in court on April 18, 1988. Neither the accused nor Stricker appeared at the April 18 hearing. Stricker's failure to appear resulted in a bench warrant for his arrest. After the Burnside Projects director appeared in court with Stricker on April 21, 1988, and explained to the court that the accused had failed to make any contact with Stricker, the judge withdrew the bench warrant.
We affirm the Trial Panel's finding that the accused violated DR 6-101(B). The accused neglected Stricker's defense entrusted to her by the Multnomah County District Court through appointment as counsel. She failed to respond to numerous telephone messages from the Burnside Projects staff. The messages to the accused that she could contact Stricker through Burnside Projects were adequate to give the accused a means of contacting her client.
The Trial Panel also found the accused guilty of violating DR 1-102(A)(3) and DR 7-102(A)(5). DR 1-102(A)(3) states: "It is professional misconduct for a lawyer to * * * [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation." The Trial Panel found that the accused falsely informed the trial court that Stricker had failed to maintain contact with her when she herself had failed to maintain contact with Stricker. The evidence of this falsehood was the testimony of Katherine Kadderly, a social worker at Burnside Projects who was involved in monitoring Stricker. Kadderly testified that she was present at the Multnomah County District Court on April 18, 1988, when the court issued a bench warrant for Stricker's arrest based on his failure to make a court appearance scheduled for that day. Kadderly told the Trial Panel that she heard the clerk of the court advise the judge that the accused "had telephoned in, that her client had not been in contact with her. * * * And [the] Judge * * * issued a bench warrant."
We affirm the Trial Panel's finding that the Bar has proven, by clear and convincing evidence, that the accused violated DR 1-102(A)(3).
As previously noted, the Trial Panel found the accused guilty of violating DR 7-102(A)(5) based upon her false statement to the court that Stricker had not maintained contact with her. The Bar, in its brief to this court, now questions the correctness of that finding because the accused's false statement to the court was designed to advance her own interests, rather than those of her client, Stricker. Whether the accused's false statement to the court is a violation of DR 7-102(A)(5) need not be resolved in this proceeding. Such misconduct by the accused, as discussed previously, constituted a violation of DR 1-102(A)(3). The sanction which we impose would not be enhanced if such misconduct were also a violation of DR 7-102(A)(5).[4]
THE BAR INVESTIGATIONS
After receiving a letter of complaint from Johnson, disciplinary counsel for the *666 Bar sent the accused a copy of the letter and requested that the accused respond by November 23, 1987. The accused failed to respond. Upon referring Johnson's complaint to the Local Professional Responsibility Committee (LPRC) on December 3, 1987, disciplinary counsel sent a certified letter to the accused urging her to cooperate with the investigation. A return receipt for this letter was signed "B.A. Recker" and returned to disciplinary counsel. The LPRC attempted to contact the accused by mail and by telephone messages, but the accused did not answer these attempts.
Shortly after the LPRC's unsuccessful attempts to contact the accused regarding the Johnson matter, the accused was appointed to represent Stricker. On April 22, 1988, the Bar's disciplinary counsel received a complaint from Burnside Projects regarding the conduct of the accused with respect to Stricker's defense. Once again, disciplinary counsel and the LPRC attempted repeatedly to contact the accused by mail and by telephone messages, but she did not respond. Finally, a member of the LPRC issued a civil subpoena duces tecum requiring the accused to appear and provide documents relating to the Stricker matter. The subpoena was personally served on the accused on July 23, 1988, but she failed to appear in response to it. The Bar initiated these formal disciplinary proceedings against the accused by personally serving her with the amended formal complaint on May 15, 1989. The accused did not file an answer or otherwise respond in these proceedings.
The Bar alleges that the accused violated DR 1-103(C), which provides:
"A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers, subject only to the exercise of any applicable right or privilege."
The evidence is clear and convincing that the accused has violated DR 1-103(C) in both the Johnson and Stricker complaints. She did not respond to the inquiries of disciplinary counsel and the LPRC, and ignored the LPRC's subpoena. The accused has not attempted to describe her omissions as the exercise of any applicable right or privilege.
THE SANCTION
The Trial Panel decided to suspend the accused from the practice of law for six months and one day. In the Bar's brief before this court, the Bar argued that a more severe sanction would be appropriate given the accused's apparent disinterest in these disciplinary proceedings.
We evaluate the proper sanction in light of the Standards for Imposing Lawyer Sanctions, approved by the American Bar Association in 1986 (ABA Standards). See, e.g., In re Arbuckle, 308 Or. 135, 139, 775 P.2d 832 (1989). In determining the appropriate sanction for lawyer misconduct, we examine four factors: (a) the nature of the duty violated; (b) the lawyer's mental state; (c) the actual or potential injury resulting from the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. ABA Standards at 25.
By neglecting two client matters and making a false statement to the court, the accused breached ethical duties owed to her clients and to the legal system. This court finds that the accused acted with conscious awareness of the nature of her conduct when she neglected the Johnson and Stricker matters. In similar cases where client matters were severely neglected, we have found that the lawyer at fault "could not have been unaware" that he was creating difficulties for his clients. In re Arbuckle, supra, 308 Or. at 140, 775 P.2d 832; In re Chandler, 306 Or. 422, 426, 760 P.2d 243 (1988). The accused also acted with conscious awareness of the nature of her conduct when she advised the court that Stricker had failed to maintain contact with her. The accused intentionally failed to carry out the contract of employment she entered into with Johnson for professional services. Accordingly, we conclude *667 that the accused acted knowingly when she engaged in conduct violating DR 6-101(B) in the Johnson case and DR 1-102(A)(3) and DR 6-101(B) in the Stricker matter. The accused's violation of DR 7-101(A)(2) in the Johnson matter involved intentional misconduct. Additionally, the accused's failure to respond to the inquiries of disciplinary counsel and the LPRC, and ignoring the LPRC's subpoena, demonstrate intentional misconduct in violation of DR 1-103(C).
The accused's conduct caused injuries to both of her clients. Johnson lost her original will, her documents, and her $100. By her actions, the accused put her client, Stricker, at risk of being arrested for failure to appear at court. Although he was not arrested, Stricker was saved only by the coincidental good fortune of having an alert Burnside Project staff member present in the courtroom on a different matter when the accused's false communication to the court was announced to the judge.
Aggravating factors existing in this disciplinary proceeding are multiple offenses, ABA Standard 9.22(d); vulnerable victims, ABA Standard 9.22(h); and indifference to making restitution, ABA Standard 9.22(j). The only mitigating factor present is the absence of a prior disciplinary record for the accused. ABA Standard 9.32(a).
The accused clearly violated several rules of professional conduct involving neglect, dishonesty and failure to cooperate with disciplinary investigations. In In re Arbuckle, supra, 308 Or. 135, 775 P.2d 832, we imposed a two-year suspension upon a lawyer who engaged in conduct that was similar to the accused's conduct in the Johnson matter. Mr. Arbuckle undertook a client matter and subsequently refused to respond to the client's telephone calls and letters for a period of two years. He failed to return several important documents the client had provided for his use in the case, which resulted in this court finding a violation of DR 9-101(B)(4). Id. at 137-138, 775 P.2d 832. Mr. Arbuckle, as the accused in this proceeding, failed to acknowledge or respond to any requests or inquiries by the Bar in connection with its investigation of the client's complaint. Id. at 138, 775 P.2d 832. Consequently, we found him guilty of DR 1-103(C). 308 Or. at 139, 775 P.2d 832.
In In re Chandler, supra, we imposed a two-year suspension upon a lawyer as a result of that lawyer's inaction on a client matter, including his failure to return the client's telephone calls over a three-year period, his delay in forwarding the client's file to the replacement lawyer, and his failure to cooperate with the Bar investigation or inquiries from the State Lawyers Assistance Committee. In Chandler, aggravating factors were two prior disciplinary proceedings and a pattern of neglect.
We conclude that the accused's professional misconduct calls for a suspension from the practice of law for a period of two years. The accused is, therefore, suspended from the practice of law for a period of two years commencing on the effective date of this decision.[5] The Oregon State Bar is awarded its actual and necessary costs and disbursements. ORS 9.536(4).
NOTES
[1] ORS 9.536(2) provides:
"If the decision of the disciplinary board is to suspend the accused attorney from the practice of law for a period of longer than 60 days or to disbar the accused attorney, the matter shall be reviewed by the Supreme Court. The procedure on review shall be as provided in the rules of procedure."
[2] The Bar did not agree with the Trial Panel's finding that the accused violated DR 7-102(A)(5) in the Stricker matter. See discussion, infra, at 665.
[3] ORS 9.536(3) provides:
"When a matter is before the Supreme Court for review, the court shall consider the matter de novo and may adopt, modify or reject the decision of the disciplinary board in whole or in part and thereupon enter an appropriate order."
[4] DR 7-102(A)(5) provides: "In the lawyer's representation of a client, a lawyer shall not * * * knowingly make a false statement or fact." (Emphasis added.) The decisions of this court appear to be in conflict on the question whether the prohibition in DR 7-102(A)(5) includes a lawyer representing the lawyer's own interests. In In re Willer, 303 Or. 241, 244, 735 P.2d 594 (1987), and In re Coe, 302 Or. 553, 567-568, 731 P.2d 1028 (1988), we held that DR 7-102(A)(5) concerns conduct a lawyer might use to advance the interests of a client and that it does not apply to conduct of a lawyer that is designed to advance the lawyer's own interests to the detriment of the client. In In re Dixson, 305 Or. 83, 750 P.2d 157 (1988), and In re Kissling, 303 Or. 638, 740 P.2d 179 (1987), however, this court, without reference to Willer or Coe and without discussion of the issue, found lawyers guilty of violating DR 7-102(A)(5) by knowingly making false statements, although those false statements were made to the detriment of their respective clients. See also In re Glass, 308 Or. 297, 779 P.2d 612 (1989), recon. den. 309 Or. 218, 784 P.2d 1094 (1990).
[5] Reinstatement is subject to the provisions of BR 8.1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345590/ | 789 P.2d 717 (1990)
Lauralee CURTIS, Plaintiff and Appellant,
v.
William Gregory CURTIS, Defendant and Respondent.
No. 890210-CA.
Court of Appeals of Utah.
March 27, 1990.
*718 Susan White Griffith, Provo, for plaintiff and appellant.
Marlin J. Grant, Logan, for defendant and respondent.
Before DAVIDSON, BILLINGS and ORME, JJ.
OPINION
ORME, Judge:
Appellant Lauralee Curtis appeals from an order of the Fourth District Court dismissing her order to show cause and enforcing an order from a Mississippi court modifying a custody arrangement previously decreed in a Utah divorce action. We conclude that the decision of the Utah court is not consistent with the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1989). We accordingly reverse.
FACTS
The parties to this dispute were granted a decree of divorce on December 4, 1987, by Utah's Fourth District Court. At the time of divorce, the parties had seven minor children. The divorce decree granted appellant, Lauralee Curtis, the children's mother, custody of the four youngest children. The older three children were allowed to choose with which parent they wanted to live. They chose their father, respondent William Gregory Curtis.
In February 1988, Lauralee consented to William's taking the children for visitation over the Presidents' Day weekend. Without Lauralee's knowledge, he took the children to Mississippi, where he claimed he first learned that the children had been allegedly abused while in Lauralee's custody. Instead of returning the children following Presidents' Day, William retained custody of the younger children in Mississippi, in violation of the Utah divorce decree.
*719 On February 16, William filed a complaint with a Mississippi court requesting: (1) a protective order against Lauralee pursuant to the Mississippi Protection From Domestic Abuse Law, Miss. Code Ann. §§ 93-21-1 to -29 (1989) and (2) modification of the Utah divorce decree to grant him custody of the younger children. The Mississippi court, in an ex parte order, granted temporary custody to William. Lauralee Curtis did not know what had become of the children until she received notice of the ex parte order and of the petition to modify the custody decree.
Lauralee obtained counsel in Mississippi and, on February 26, a motion to dismiss for lack of jurisdiction was filed on her behalf. The Mississippi court held a three-day hearing on William's complaint and Lauralee's motion to dismiss. Both parties appeared and were represented by counsel. At the close of the hearing, the Mississippi court continued the protective order against Lauralee, denied her motion to dismiss for lack of jurisdiction under the Mississippi abuse statute, and took under advisement her motion to dismiss for lack of jurisdiction to modify the Utah decree as well as the modification request.
The Mississippi court did not rule on the petition to modify the Utah divorce decree until August 1988, some five months after the hearing.[1] On August 8, the Mississippi court ruled, pursuant to the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1989) ("the PKPA"), that it did not have jurisdiction to modify the Utah divorce decree. However, the court did not dissolve the protective order against Lauralee.
On September 12, Lauralee sought and obtained from the Fourth Judicial District Court of Utah an order requiring William to show cause why he should not be held in contempt for failing to return the children to Utah. On September 23, her counsel in Mississippi filed a motion to dissolve the Mississippi protective order. The Mississippi court found Lauralee's motion to be frivolous and assessed fees against her.
On October 24, William filed a second motion with the Mississippi court to modify the Utah divorce decree. At that time the children had been living in Mississippi for just over eight months. It had been less than a year since the Utah divorce decree was issued. That same day William obtained an interlocutory order from the Mississippi court granting physical custody to him pending the final judgment, with an order requiring pick-up of the children.[2]
On November 10, the Fourth District's domestic relations commissioner, Howard Maetani, held a hearing on Lauralee's order to show cause and concluded that Mississippi did not have jurisdiction to modify the divorce decree because Utah had never relinquished jurisdiction. He therefore recommended against enforcement of the Mississippi order and in favor of issuing a restraining order against William. William moved to dismiss Commissioner Maetani's order and objected to his ruling.
On December 5, the Mississippi court issued a final judgment on William's second motion to modify the Utah decree. The Mississippi court found that the children had been present in the state for at least six months,[3] that the parties had significant connections with the state, and that modification by the Mississippi court was in the best interests of the children.[4] These findings were likely based on the jurisdictional prerequisites found in the *720 Uniform Child Custody Jurisdiction Act adopted in Mississippi, Miss. Code Ann. §§ 93-23-1 to -47 (1989) ("the UCCJA").[5] The Mississippi court determined that it had jurisdiction to modify the Utah divorce decree and issued an order granting permanent custody of all seven children to William.
On January 12, 1989, William's objection to Commissioner Maetani's ruling came before Utah's Fourth District Court. Prior to his decision, the judge, who had entered the initial Utah decree, conferred by phone with the Mississippi judge.[6] In its opinion, the Fourth District Court stated:
Both courts ... recognized that only one state the state of continuing jurisdiction has power to modify a divorce decree. Both courts further adhered to the principle that only the state with continuing jurisdiction decides whether to decline the exercise of its jurisdiction over the Decree of Divorce. Both Courts concluded there can be no concurrent jurisdiction between the State of Utah and the State of Mississippi and that under normal circumstances Utah has continuing jurisdiction to make subsequent changes or new orders concerning the custody of children when such matters have been previously decided in a Utah Decree of Divorce.[7]
Despite these findings, the Utah court concluded that Lauralee had made a "general appearance" in Mississippi during the hearing in late February and early March of 1988, and thereby submitted herself to the jurisdiction of the Mississippi court. The Utah court thereupon dismissed the order to show cause and granted William's motion to enforce the order of the Mississippi court giving him custody of the children. Lauralee appeals from these rulings of the Utah court.
In this appeal, we address two important issues. First, we analyze the issue of subject matter jurisdiction in custody modification proceedings. Second, we address Lauralee's "general appearance" and what effect that appearance had on Mississippi's subject matter jurisdiction. Initially we note that, on appeal, both parties based their arguments primarily upon interpretations of the UCCJA, a uniform statute enacted in both states. Because we find that the PKPA directly addresses the issues before this court, creates a very manageable two-prong test for determining modification jurisdiction, and would govern in the event of any conflict with the UCCJA or other state law,[8] we focus our analysis on *721 the federal statute.[9]
SUBJECT MATTER JURISDICTION AND THE PARENTAL KIDNAPPING PREVENTION ACT
1. Generally
It is particularly appropriate to apply the PKPA in this dispute because the federal act was specifically created to deal with this kind of case. We need not turn to general legislative history to ascertain this fact. Congress formulated specific "findings and purposes" which were thereafter enacted as part of the PKPA, though not codified. See generally Parental Kidnapping Prevention Act of 1980, Pub.L. No. 96-611, § 7, 94 Stat. 3568, 3568-69 (1980). In these "findings and purposes," Congress recognized the lack of a national standard to guide states in resolving their jurisdictional disputes in the area of child custody.[10]Id. Without a national standard, states were reaching inconsistent and conflicting results. Id. Thus, disgruntled noncustodial parents, like William in this case, were tempted to snatch children away from the custodial parent and to seek a more favorable decree from another state. Id.
In response to these problems, Congress enacted the PKPA. Its expressed purpose was "to establish national standards under which the courts of [each state] will determine their jurisdiction to decide such disputes and the effect to be given by each such [state] to such decisions by the courts of other such [states]." Id. at Pub.L. No. 96-611, § 7(b). These standards guide and instruct courts to "ascertain the one state with jurisdiction to modify an existing child custody order." Murphy v. Woerner, 748 P.2d 749, 750 (Alaska 1988) (emphasis added). In most cases, the appropriate state will be the one that issued the original decree, fulfilling the "strong Congressional intent to channel custody litigation into a court having continuing jurisdiction." Mark L. v. Jennifer S., 133 Misc. 2d 454, 506 N.Y.S.2d 1020, 1023 (Fam.Ct. 1986) (emphasis *722 in original). By limiting the discretion of individual state courts, Congress has removed the success of forum shopping and thus the incentive for child snatching. See E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871, 876 (1982), cert. denied, 459 U.S. 1210, 103 S. Ct. 1203, 75 L. Ed. 2d 445 (1983); Tufares v. Wright, 98 N.M. 8, 644 P.2d 522, 525 (1982).
Having examined the purposes of the PKPA, we now apply its particular statutory provisions and policies to the facts before us. For ease of discussion, we will refer to the state that originally enters a custody decree as the "first state" and another state asked to modify that decree as the "second state."
The PKPA provides in pertinent part:
(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.
... .
(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if
(1) such court has jurisdiction under the law of such State... .
... .
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
... .
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
28 U.S.C. § 1738A (1989) (emphasis added).
These provisions of the PKPA are dispositive of this case. They provide that a second state may only modify the custody decree of the first state in very limited circumstances, even though both states may have an interest in the matter. In re B.B.R., 566 A.2d 1032, 1036 (D.C.Ct.App. 1989). Subsection (f) is the key modification provision of the PKPA and creates a two-prong test for courts to apply. Before a second state may modify the decree of the first state, (1) the second state must have such jurisdiction as would permit it to make an initial custody determination and (2) the first state must have lost or given up its continuing jurisdiction. We analyze each of these prongs separately.
2. FIRST PRONG: Mississippi's Jurisdiction To Make Initial Custody Determination
William asserted that the Mississippi court initially had jurisdiction under the emergency provision of Mississippi's UCCJA and the Mississippi Protection From Domestic Abuse Law, Miss. Code Ann. §§ 93-21-1 to -29 (1989). Moreover, when the Mississippi court modified the custody order, it relied upon the children's eight-month stay in Mississippi prior to its modification decree and upon a "best interests" analysis.
a. Emergency Jurisdiction
Assuming no prior custody decree, the emergency provision of the Mississippi UCCJA might have provided jurisdiction to the Mississippi courts. That provision, which is identical to Utah Code Ann. § 78-45c-3(1)(c)(ii) (1987), grants jurisdiction if "[t]he child is physically present in this state and ... it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent." Miss. Code Ann. § 93-23-5(1)(c)(ii) (1989). The PKPA has a similar provision providing jurisdiction if *723 "the child is physically present in such State and ... it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse." 28 U.S.C. § 1738A(c)(2)(C)(ii).
After removing the children from Utah, William went to Mississippi and sought a protective order from a Mississippi court. The court granted a protective order under its Protection From Domestic Abuse Law. We need not determine in this appeal whether the abuse alleged by William would have been sufficient to confer jurisdiction upon a Mississippi court in the context of an initial custody determination.[11] We need only acknowledge that the alleged abuse might have entitled the Mississippi court to exercise jurisdiction in an initial custody suit and for purposes of this appeal, we consider the first prong satisfied on this basis.
Before we leave emergency jurisdiction, we need to address the protective order issued by the Mississippi court. It may well be that the Mississippi court had limited jurisdiction to issue a temporary restraining order or other interim relief to assure the immediate protection of the children. However, without satisfying the second prong of the modification jurisdiction analysis, the "emergency" did not entitle the court to continue the emergency order indefinitely or to adjudicate the modification issue.[12]See Mitchell v. Mitchell, 437 So. 2d 122, 127 (Ala. Civ. App. 1982). See also Rawlings v. Weiner, 752 P.2d 1327, 1330 n. 4 (Utah Ct.App. 1988) (construing UCCJA). Rather, the protective order should have continued only as long as necessary to contact the Utah court and determine which court was the correct forum to handle the emergency abuse claim and, as a separate matter, to litigate the modification issue. See Donigan, Child Custody Jurisdiction: New Legislation Reflects Public Policy Against Parental Abduction, 19 Gonz.L.Rev. 1, 13 (1983/84). See also Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, XIV Fam. L.Q. 203, 225-26 (1981) (addressing "emergency" provision in UCCJA).
b. Jurisdiction under "Home State" Provision
When the Mississippi court modified the custody decree, it relied upon a provision of the UCCJA, Miss. Code Ann. § 93-23-5(1)(a)(i) (1989), which provides for jurisdiction if "[t]his state ... is the home state of the child at the time of commencement of the proceeding." Id. Miss. Code Ann. § 93-23-3(f) (1989) defines "home state" to mean "the state in which the child immediately preceding the time involved lived with ... a parent ... for at least six (6) consecutive months." Id. The PKPA contains a very similar provision.
Under these provisions, Mississippi could argue that it had jurisdiction to make an initial custody decree. The children lived with William in Mississippi for eight months pursuant to the court's protective order. If this case were about an initial custody decree, we would nonetheless have to address the fact that the children were only in Mississippi because of William's *724 wrongful conduct.[13] The children would not have had any connections with Mississippi were it not for William's retention of the children in Mississippi in violation of the Utah divorce decree. For purposes of this appeal, however, it is enough to note that the "home state" provision might have given Mississippi jurisdiction in an initial custody decree and we assume that the first prong was also satisfied on this basis.
c. Jurisdiction Under "Best Interests" Provision
The Mississippi court also relied upon another provision of the UCCJA, which provides for jurisdiction if
[i]t is in the best interest of the child that a court of this state assume jurisdiction because (i) .. . the child and at least one (1) contestant, have a significant connection with the state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships.
Miss. Code Ann. § 93-23-5(1)(b) (1989). There is a similar provision in the PKPA except that the PKPA only recognizes initial custody jurisdiction under a "best interests" analysis if "it appears that no other State would have jurisdiction under [the `home state' provision]." 28 U.S.C. § 1738A(c)(2)(B)(i).
Again, the "best interests" provision of the UCCJA might have given Mississippi jurisdiction for an initial custody decree. The children and William were living in Mississippi and the Mississippi court found significant connections with the state as well as substantial evidence in Mississippi. Moreover, the Mississippi court found that, at the time of the modification, Mississippi had become the children's home state. Still, we would be concerned about the reason for the children's presence in Mississippi and the reasons for many of the connections with Mississippi.[14] It is sufficient to note for purposes of the instant inquiry, however, that this provision might have given Mississippi initial custody jurisdiction.
To summarize, at the time that Mississippi modified the custody decree, it is arguable that the "emergency" provision, the "home state" provision, or the "best interests" provision might have given Mississippi jurisdiction for an initial custody decree, thereby satisfying the first prong of the PKPA's test for modification jurisdiction. It is quite clear from the record, however, that the second prong of the jurisdiction analysis was not met in this case.
3. SECOND PRONG: Utah's Jurisdiction
The second prong of modification analysis under the PKPA prohibits a state from modifying another state's decree unless the first state either (a) lost its jurisdiction or (b) declined to exercise its modification jurisdiction.
a. Utah Did Not Lose Its Jurisdiction
To determine whether Utah has lost its jurisdiction we must look to subsection (d) of the PKPA which provides:
*725 The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
28 U.S.C. § 1738A(d). This section imposes three requirements for continuing jurisdiction: (1) That Utah had jurisdiction for the initial custody decree; (2) that Utah had current jurisdiction under its own state laws;[15] and (3) that the children or a parent reside in Utah. See Meade v. Meade, 650 F. Supp. 205, 210 (M.D.N.C. 1986), aff'd, 812 F.2d 1473 (4th Cir.1987).
Applying these three requirements, the Utah courts clearly had continuing jurisdiction. First, William has not challenged Utah's jurisdiction to enter the initial custody decree and it seems clear that Utah in fact had such jurisdiction. See Utah Code Ann. §§ 30-3-1(2), -10 (1989) (jurisdictional requirements for divorce and custody).[16] Second, Utah clearly had continuing jurisdiction under Utah law: "The court has continuing jurisdiction to make subsequent changes or new orders for ... the custody of the children and their support... ." Utah Code Ann. § 30-3-5(3) (1989). Finally, Lauralee continued to reside in Utah throughout the controversy, thus satisfying the third requirement. We hold, therefore, that Utah had continuing jurisdiction to modify the custody decree.
b. Utah Did Not Decline To Exercise Jurisdiction
A second state with jurisdiction may modify a first state's custody decree if the first state has declined to exercise jurisdiction. See, e.g., E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871, 877 (1982). However, William never requested Utah courts to exercise their modification jurisdiction. Rather, he chose to try his luck in another forum. Therefore, not having had the opportunity to exercise its jurisdiction, we hold that the Utah court had not declined to exercise it as of the time the Mississippi orders were entered.
We conclude that Utah neither lost nor declined to exercise its jurisdiction over the custody dispute in this case. It follows that, as a matter of federal law, Mississippi had no subject matter jurisdiction to modify the decree. This is so even though Mississippi might have had jurisdiction to enter an initial custody decree under the facts as they otherwise existed except for Utah's already having done so.
THE "GENERAL APPEARANCE"
In its findings and conclusions, the Utah trial court essentially conceded that only Utah had subject matter jurisdiction to modify the child custody decree. However, after noting this fact, the court went on to find that because Lauralee had litigated the issues in Mississippi she had placed "herself within the jurisdiction of the Mississippi Court." The findings suggest the Mississippi court shared these views. Consequently, the Utah court granted William's motion to enforce the Mississippi decree. The trial court's decision was incorrect.
The Utah and Mississippi trial courts apparently confused the rules concerning subject matter jurisdiction with those of personal jurisdiction. Although the Utah court agreed that Mississippi did not have subject matter jurisdiction, it used the personal jurisdiction doctrine of "general appearance" to get around that problem.[17]
*726 The crux of William's argument was that Lauralee waived her jurisdictional challenge by appearing and litigating the custody question in Mississippi. Though this might be a legitimate argument against a personal jurisdiction challenge, it is not against a subject matter jurisdiction challenge, and to entertain a dispute, a court must have jurisdiction over both the subject matter of the dispute and the individuals involved. If the court lacks either type of jurisdiction, it has no power to entertain the suit. See generally 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350 (1969). Moreover, while defects in personal jurisdiction can be waived, subject matter jurisdiction goes to the very power of a court to entertain an action. Id. A lack of subject matter jurisdiction cannot be stipulated around nor cured by a waiver. Id. A lack of subject matter jurisdiction can be raised at any time and when subject matter jurisdiction does not exist, neither the parties nor the court can do anything to fill that void. Id.
We have determined that Mississippi did not have subject matter jurisdiction to enter its modification orders. Thus, even if Lauralee's appearance in the Mississippi court waived a personal jurisdiction challenge, but see note 17, supra, it in no way waived the subject matter jurisdiction challenge at issue in this case.
CONCLUSION
The Utah trial court should have determined under the PKPA that continuing modification jurisdiction resided in the Utah court to the exclusion of Mississippi and that the orders of the Mississippi court were accordingly invalid. Moreover, its conclusion that Lauralee's general appearance in Mississippi placed her within the subject matter jurisdiction of the Mississippi court was erroneous. We reverse and remand for proceedings consistent with this opinion.[18]
BILLINGS and DAVIDSON, JJ., concur.
NOTES
[1] During this time, Lauralee took no action in Utah, apparently waiting for the decision in Mississippi.
[2] Some time earlier during October, Lauralee went to Mississippi and took the children back with her to Utah. After the unfavorable ruling by the Fourth District Court, the children were apparently returned to Mississippi where we assume they remain.
[3] The court seems not to have focused on the fact that the only reason the younger children had been present in the state for over six months was because the Mississippi court continued a "temporary" protective order for that length of time.
[4] Although the court did not rely on this point in its final modification order, the Mississippi court also noted that Lauralee had invoked the jurisdiction of the Mississippi court by moving the court to dissolve the protective order.
[5] The court claimed to have incorporated into the December 5 decision its earlier opinion of August 9. However, unlike in the August 9 opinion, the court now determined that it had jurisdiction to modify the Utah custody decree. Apparently, the court determined that Utah no longer had continuing jurisdiction because the children had remained in Mississippi for eight months prior to William's second motion for modification.
In the December 5 decision, the Mississippi court did not discuss the PKPA as it related to its jurisdiction or to William's conduct. However, it concluded that Lauralee had violated the PKPA by taking the children from Mississippi in October in violation of the protective order premised on Mississippi state law. This conclusion is most ironic since, as is hereafter shown, the court's protective order of indefinite duration was itself entered in violation of the PKPA.
[6] The trial court relied on Coppedge v. Harding, 714 P.2d 1121 (Utah 1985) (per curiam), as the basis for its prudent decision to confer by telephone with the Mississippi court. The record does not disclose why the Mississippi judge had not seen fit to confer with his Utah counterpart at the outset. Such a timely conference may well have avoided, or at least greatly minimized, the subsequent difficulties.
[7] The conclusions reached between the Utah and Mississippi courts as a result of the telephone conversation would seem to be inconsistent with the Mississippi court's conclusions reached in its decision to modify. It may be that the Mississippi court was persuaded that, although Utah had not lost its jurisdiction, Lauralee's "general appearance" circumvented the jurisdictional problem.
[8] "As a federal jurisdictional statute, the PKPA establishes a policy of federal pre-emption in the area of custody jurisdiction. Consequently, under the Supremacy Clause of the United States Constitution, the PKPA takes precedence over [state law]." Voninski v. Voninski, 661 S.W.2d 872, 876 (Tenn. Ct. App. 1982), modified on other grounds, State ex rel. Cooper v. Hamilton, 688 S.W.2d 821, 824 (Tenn. 1985). Accord Applegate v. Gant, 460 So. 2d 1293, 1294 (Ala. Civ. App. 1984) (if UCCJA and PKPA conflict, PKPA prevails); Murphy v. Woerner, 748 P.2d 749, 750 (Alaska 1988) ("PKPA preempts state law"); Enslein v. Enslein, 112 A.D.2d 973, 492 N.Y.S.2d 785, 787 (1985) (PKPA preempts UCCJA).
[9] Though we base our decision on the PKPA, we do not mean to suggest that the result would be different under the UCCJA. See generally Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, XIV Fam.L.Q. 203 (1981) (article draws many of the same conclusions under the UCCJA that we draw under the PKPA). See also Rawlings v. Weiner, 752 P.2d 1327 (Utah Ct.App. 1988) (custody modification question resolved without reference to PKPA). Without belaboring the point, we recognize the complementary interplay between the UCCJA and the PKPA. See generally Donigan, Child Custody Jurisdiction: New Legislation Reflects Public Policy Against Parental Abduction, 19 Gonz.L.Rev. 1 (1983/84).
Like the PKPA, the UCCJA was created "to remedy th[e] intolerable state of affairs where self-help and the rule of `seize and run' prevail... ." Lansing & Sherman, The Legal Response to Child Snatching, 7 J.Juv.L. 16, 19 (1983) [hereafter "Lansing & Sherman"] (quoting UCCJA, Commissioners' Prefatory Note, 9 U.L.A. 112 (1979)). Its focus is upon both initial custody decrees and modification decrees. See, e.g., Miss.Code. Ann. § 93-23-5(1) (1989). It was designed to establish rules and policies which would limit a state's discretion to exercise jurisdiction over custody cases and to encourage states to cooperate and exchange information toward the end of finding the most appropriate forum. See Lansing & Sherman at 20. In the context of initial custody decrees, the UCCJA is still an important source for determining which state, among several having an interest in the case, should exercise jurisdiction in a particular dispute.
The PKPA is also important in the context of initial custody decrees. Though not designed to deal with initial custody decree determinations per se, see 28 U.S.C. § 1738A(a), it provides criteria which must be followed in the initial custody decree if that state wishes to retain jurisdiction in the event that a second state is asked to modify that decree. See 28 U.S.C. 1738A(c)(2) (1989). These criteria differ somewhat from those provided by the UCCJA.
In the context of modification jurisdiction, the PKPA is the final word. It is "not a radical departure from the [UCCJA]; in fact, the two acts are similar if not identical on a number of points." Note, The Parental Kidnapping Prevention Act: Application and Interpretation, 23 J.Fam.L. 419, 426 (1984-85). However, whereas the UCCJA created the possibility for concurrent jurisdiction in modification proceedings, the PKPA provides a rigid formula for determining the single state with modification jurisdiction. Because of the PKPA's specificity, we choose to apply it rather than the UCCJA in this case.
[10] It is most enlightening to note that Congress found this lack of a national standard even though 44 states had adopted some form of the UCCJA at the time the PKPA was enacted. See Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, XIV Fam.L.Q. 203, 203 (1981).
[11] Courts have held that for emergency jurisdiction to exist, there must be "evidence to indicate physical or emotional mistreatment or abuse of the children," Jones v. Jones, 456 So. 2d 1109, 1112 (Ala. Civ. App. 1984), or a "showing of a present danger to the children," Schoeberlein v. Rohlfing, 383 N.W.2d 386, 389 (Minn. Ct. App. 1986), or the children must be "in serious danger of immediate harm if [they remained with the other parent]." Marks v. Marks, 281 S.C. 316, 315 S.E.2d 158, 162 (Ct.App. 1984).
[12] William suggested that State ex rel. W.D. v. Drake, 770 P.2d 1011 (Utah Ct.App. 1989), prevents us from applying the PKPA to this fact situation. He relies upon a footnote in that opinion which states: "The PKPA does not apply to child neglect and dependency proceedings." Id. at 1013 n. 1. William's argument has no merit for several reasons. First, his protective order was based upon the Mississippi Protection From Domestic Abuse Law which covers abuse and not neglect. See Miss.Code. Ann. § 93-21-3(a) (1989). Second, this language from Drake is purely dicta in the context of a modification dispute as Drake only involved an initial custody determination. Finally, we reject the accuracy of this dicta as a general proposition.
[13] A good argument can be made in opposition to Mississippi's jurisdiction based upon Miss. Code Ann. § 93-23-15 (1989). That provision states:
If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
Id. At least one court has supported this position stating:
[W]e cannot believe that the [PKPA] contemplates an approach that would enable a contesting party, particularly where wrongdoing is involved, to build up connection time in his or her state, thereby frustrating one of Congress' purposes in enacting the PKPA to "deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards."
In re B.B.R., 566 A.2d 1032, 1040 (D.C.Ct.App. 1989) (quoting Parental Kidnapping Prevention Act of 1980, Pub.L. No. 96-611, § 7(c)(6), 94 Stat. 3568, 3569 (1980)). We recognize that Mississippi concluded in its March 8 findings that William's conduct in taking the children to Mississippi without Lauralee's knowledge or permission was not wrongful. This conclusion is surely questionable.
[14] See note 13, supra.
[15] Section 1738A(c)(1), in the context of § 1738A(d), requires that the first state continue to have jurisdiction under its own laws.
[16] The jurisdictional validity of the original Utah decree has never been disputed in this case. At the time of the original decree, both parents and all of the minor children had been living in Utah for several years. There had been homestudies and psychological evaluations performed in order to assist the Utah court in making its original determination. All of the pertinent evidence about the parties was located in Utah at the time of the original divorce decree.
[17] The doctrines of "general" and "special" appearance, relied on by the court, are associated with personal jurisdiction only. Prior to the adoption of Rule 12(b) of the Rules of Civil Procedure, a party was required to allege lack of personal jurisdiction and other jurisdictional defects separately from other nonjurisdictional defenses. "[I]f a challenge of this type was joined with any nonjurisdictional defenses, the appearance became `general' and the party's right to object to jurisdiction was deemed waived." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1362 (1969). Today the distinction between general and special appearances has been effectively abolished by Rule 12(b), which permits jurisdictional and nonjurisdictional defenses to be joined. See generally id. at § 1344. See also Ted R. Brown & Assocs., Inc. v. Carnes Corp., 547 P.2d 206, 207 (Utah 1976) (defendant has not made a general appearance by making a motion to release attachment).
Because of our conclusion that the Mississippi court did not have subject matter jurisdiction over the dispute, we do not decide the separate issue of the court's personal jurisdiction over the person of Lauralee. However, it appears that Lauralee was in Mississippi for the principal purpose of challenging that court's subject matter jurisdiction and only litigated the other issues because the court refused to rule on the jurisdictional question. We would be hard pressed to view her behavior as a waiver. We would likewise be loathe to embrace a rule that would effectively require a parent in Lauralee's position not to participate in a hearing on the custodial fate of his or her children lest an unruled-upon jurisdictional objection be considered waived.
[18] Nothing in this opinion should be read to favor a custody determination for either William or Lauralee. We merely conclude that Utah was the only proper forum in which to bring a modification proceeding. William is in no way precluded from seeking a custody modification in Utah. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827068/ | Order Michigan Supreme Court
Lansing, Michigan
September 6, 2011 Robert P. Young, Jr.,
Chief Justice
143073 & (16)(17) 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: 143073
COA: 302051
Ingham CC: 09-000660-FC
DANIEL ADAM BURWELL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 23, 2011 order
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. The motion to remand and
motion for appointment of counsel are DENIED.
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 _________________________________________
t0829 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345687/ | 708 N.W.2d 377 (2006)
474 Mich. 1017
Joseph STAMPLIS and Theodora Stamplis, Plaintiffs-Appellees,
v.
ST. JOHN HEALTH SYSTEM, d/b/a River District Hospital, Defendant-Appellant, and
G. Phillip Douglass, Defendant-Appellee, and
Henry Ford Health System, d/b/a Henry Ford Hospital, et al Defendants.
Joseph Stamplis and Theodora Stamplis, Plaintiffs-Appellees,
v.
St. John Health System, d/b/a River District Hospital, Defendant-Appellee, and
G. Phillip Douglass, Defendant-Appellant, and
Henry Ford Health System, d/b/a Henry Ford Hospital, et al Defendants.
Docket Nos. 126980 & (80), 127032, COA No. 241801.
Supreme Court of Michigan.
January 27, 2006.
On December 15, 2005, the Court heard oral argument on the applications for leave to appeal the June 1, 2004 judgment of the Court of Appeals. On order of the Court, the motion to disqualify is DENIED. The applications for leave to appeal are again considered, and they are GRANTED. MCR 7.302(G)(1). The parties are directed to include among the issues briefed the impact, if any, of the 1995 amendment of MCL 600.2925d on the current viability of Theophelis v. Lansing General Hospital, 430 Mich. 473, 424 N.W.2d 478 (1988).
The Michigan Trial Lawyers Association and Michigan Defense Trial Counsel are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the questions presented in this case may move the Court for permission to file briefs amicus curiae.
MARILYN J. KELLY, J., concurs in part and dissents in part and states as follows:
While I agree to grant leave to appeal, I do not participate in the decision to deny the motion to disqualify. I agree with Justice Weaver in urging the Court to establish a particularized procedure to handle motions to disqualify a Supreme Court Justice from participation in a case.
WEAVER, J., not participating in the decision regarding the motion to disqualify Chief Justice Taylor and Justices Corrigan, Young, and Markman, dissents and states as follows:
I am opposed to the entry of any order in this case at this time and would hold this case in abeyance until this Court publishes proposals for public comment, places the issue on a public hearing for administrative matters, resolves, and makes clear for all to know the proper procedures for handling motions for the disqualification of Supreme Court Justices from participation in a case. This Court opened an administrative file on the question on May 20, 2003, but has yet to address the matter further. See ADM 2003-26.
*378 The question regarding the participation or nonparticipation of Justices frequently recurs and is a matter of public significance because even one Justice's decision to participate or not participate can affect the decision and outcome in a case. See Advocacy Org. for Patients & Providers v. Auto. Club Ins. Ass'n., 472 Mich. 91, 693 N.W.2d 358 (2005) (Weaver, J., concurring). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1202128/ | 127 Ga. App. 5 (1972)
192 S.E.2d 394
SOUTHEASTERN BUILDERS, INC.
v.
STARRETT et al.
47080.
Court of Appeals of Georgia.
Argued April 7, 1972.
Decided September 5, 1972.
Hull, Towill, Norman, Barrett & Johnson, Wyckliffe A. Knox, Jr., F. Frederick Kennedy, Jr., for appellant.
Sanders, Hester, Holley, Askin & Dye, Glenn B. Hester, Otis F. Askin, Jr., Carlisle Overstreet, for appellees.
PANNELL, Judge.
This is an appeal from the denial of a motion by a landlord for summary judgment in an action brought by a husband and wife, tenants, resulting from the wife's injuries when a door mat slipped as she stepped upon it in the entrance to the leased premises. This is not a case concerning the mere slipping of a door mat on the floor of an entrance and exit to an apartment (Wilkinson v. Rich's, Inc., 77 Ga. App. 238 (48 SE2d 552)), but here the mat was resting partly on the door or the door facing and partly on the floor creating a situation entirely different from that when a door mat is where it is supposed to be. While the defendant denied any knowledge of the door mat's presence, there was evidence that the door mat had been in the entrance for a period of four months. While there was no evidence as to how long the door mat had been in this particular position, and in the absence of actual notice, the plaintiff, upon the trial of the case could not recover on this evidence, as the burden of proof would be upon her to show the mat had been so placed a sufficient length of time to constitute constructive notice thereof to the landlord, this does not require the grant of a summary judgment to the defendant on its motion as the burden would be on the defendant to prove the mat had not been so located a *6 sufficient length of time to constitute constructive notice to the defendant-landlord. Werbin & Tenenbaum v. Heard, 121 Ga. App. 147 (3) (173 SE2d 114); Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (170 SE2d 737).
The defendant here, upon whom the burden lay, must produce evidence which conclusively negates any question of constructive notice on its part. Werbin & Tenenbaum v. Heard, 121 Ga. App. 147 (2), supra. The defendant having failed to carry this burden, the trial court did not err in refusing to grant its motion for summary judgment.
Judgment affirmed. Hall, P. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2502694/ | 721 S.E.2d 410 (2012)
IN RE F.T.
No. COA11-851.
Court of Appeals of North Carolina.
Filed January 17, 2012.
Case Reported Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345635/ | 270 Neb. 685
IN RE INTEREST OF B.R. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
v.
BILLY B., APPELLANT, AND CRYSTAL B., APPELLEE.
No. S-05-063.
Supreme Court of Nebraska.
Filed December 2, 2005.
David A. Fournier, of Fournier Law Office, for appellant.
Stuart J. Dornan, Douglas County Attorney, Nicole Brundo Goaley, and Carrie Ferguson, Senior Certified Law Student, for appellee State of Nebraska.
HENDRY, C.J., WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
McCORMACK, J.
NATURE OF CASE
Billy B. appeals the December 23, 2004, order of the separate juvenile court of Douglas County, adjudicating B.R., E.B., and N.B. to be juveniles within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2004) in that they lacked proper parental care by reason of the fault and habits of Billy. Billy argues that certain testimonial evidence presented at the adjudication hearing was inadmissible hearsay. He also argues that the evidence did not support the adjudication of the children based on the supplemental petition and that the court erred by denying his motion for summary judgment.
BACKGROUND
Billy is the stepfather of B.R., born September 3, 1999, and the natural father of E.B., born August 17, 2001, and N.B., born June 27, 2003. On March 19, 2004, the State of Nebraska filed a petition in the juvenile court alleging that the children are within the meaning of § 43-247(3)(a) by reason of the faults and habits of Billy and his wife, Crystal B.
Thereafter, the State filed a two-count supplemental petition. The supplemental petition alleged that the children were within the meaning of § 43-247(3)(a) by reason of the fault and habits of Billy, in that Billy had subjected B.R. to inappropriate sexual contact, placing the children at risk of harm. Billy entered a denial as to the supplemental petition. The State then filed a second supplemental petition. This petition alleged that the minor children were within the meaning of § 43-247(3)(a) by reason of Billy's use of alcohol and/or controlled substances. Billy entered an admission to the second supplemental petition.
In December 2004, the adjudication of the supplemental petition and second supplemental petition came before the juvenile court. Also before the court were the disposition and permanency planning on the original petition regarding Billy and Crystal, as well as the immediate disposition on the second supplemental petition with regard to Billy. At the hearing, the State presented testimonial evidence regarding the alleged sexual abuse of B.R.
Alleged Sexual Abuse Testimony
Ellen Rupp, a pediatrician at Boys Town National Research Hospital, testified that she conducted an examination of B.R. and E.B. in response to issues that the girls' foster family had expressed concerning sexualized behavior by B.R. at the foster home. Rupp testified that according to the foster family, B.R. would "hump" other children, refer to sex acts, and touch her private parts frequently in public and in private. Rupp testified that E.B. also demonstrated some of these behaviors, but she more often complained of pain, particularly at night, and would sometimes awaken complaining of pain. No objection was made regarding this testimony. Rupp testified that during her examination of B.R., she noticed that B.R.'s hymen was thickened. She explained that the thickening of the hymen can be the result of trauma, such as scratches from fingers or something being inserted into the vagina. However, it can also result from getting estrogens in the diet, such as hormonally treated meat, certain kinds of plastic, and eating birth control pills. Although the latter causes are unusual, Rupp testified that recently, they are not that uncommon. Rupp further testified that based on observations made during the physical examination, she could not say with a reasonable degree of medical certainty whether B.R. had been sexually abused. She did, however, request that B.R. and E.B. be seen at "Project Harmony," a facility which provides services to suspected victims of child abuse.
LaJean Henry, a licensed foster parent who fostered the children in her home on or about March 19, 2004, for about 30 days as an emergency placement, also testified. Henry testified that she had observed B.R. "humping" E.B. and that the girls would kiss each other on the mouth. Henry testified that she had discussed with B.R. good touching and bad touching and that B.R. had indicated that she had experienced bad touching. Specifically, Henry testified that B.R. told her that "somebody put their pinkie in her." Henry believed that the "somebody" B.R. was referring to was Billy.
Testimony was also received from Sheryl Overby, a therapist with Lutheran Family Services. Overby began seeing B.R. in May 2004, and at the time of the adjudication hearing, she had conducted approximately 23 therapy sessions with B.R. Overby testified that during the course of their sessions, B.R. made several references to her "daddy" touching her genitalia and had stated that she touched her "daddy's pee-pee."
On cross-examination, Overby testified that she had four sessions with B.R. before B.R. made any reference to any kind of touching and that during 18 or 19 of their sessions, B.R. did not mention any type of sexual abuse. She also testified that B.R. had made no reference to sexual abuse prior to Overby's introducing a book about sexual abuse and that questions about sexual abuse had been introduced into therapy for the purpose of eliciting information.
In addition, Billy and Crystal were each called to testify. When Crystal was asked if Billy had inappropriately touched B.R. or E.B., she invoked her Fifth Amendment constitutional right against self-incrimination. When Billy was asked if he had ever inappropriately touched the girls, he testified that he had not.
Hearsay Testimony
Overby also testified regarding conduct that had been relayed to her by the children's foster mother. Specifically, Overby testified the foster mother reported that either B.R. or E.B. had put her mouth on the other's genital area when the children were not dressed and that the girls had been kissing each other with their tongues. Counsel for Billy twice objected to the testimony of Overby regarding observations relayed to her by the foster mother as hearsay. The court overruled Billy's objections under the medical diagnosis exception to hearsay. Overby then went on to testify, without objection, the foster mother had reported that B.R. did not want her foster father to read her a story in bed and that E.B. and N.B. became very tense with their legs when the foster mother attempted to clean their genital areas. Overby opined that this behavior is consistent with sexual abuse. However, she stated that the behavior was also consistent with trauma and that being placed in foster care is enough of a trauma for some children to exhibit such behaviors.
On December 23, 2004, the juvenile court entered an order adjudicating the children on the second supplemental petition. With regard to the disposition on the original petition and second supplemental petition, the court ordered that the children remain in the custody of the Nebraska Department of Health and Human Services and the court set forth a rehabilitative plan to correct, eliminate, or ameliorate the situation or condition on which adjudication was obtained. The juvenile court also adjudicated the children based on the supplemental petition. The court found that the State's evidence was probative, that the witnesses were credible and reliable, and that the counts contained in the supplemental petition were true based on a preponderance of the evidence. Disposition on the supplemental petition was not determined at that time. Rather, disposition on the supplemental petition was scheduled for hearing on a later date. Billy timely appealed the juvenile court's December 23 order.
ASSIGNMENTS OF ERROR
Billy assigns, restated, that the juvenile court erred in (1) allowing the testimony of Overby over his objections, (2) denying his motion for summary judgment, and (3) finding that the allegations set forth in the supplemental petition were true by a preponderance of the evidence.
STANDARD OF REVIEW
[1] Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004).
[2] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004).
ANALYSIS
Medical Diagnosis and Treatment Exception to Hearsay Testimony
Pursuant to Neb. Rev. Stat. § 27-803(3) (Cum. Supp. 2004), the juvenile court admitted the testimony of Overby regarding observations relayed by B.R.'s foster mother to Overby, who was B.R.'s therapist, that one of the girls put her mouth on the other girl's private parts or genitalia. Billy objected to this testimony on the basis of hearsay, which objection was overruled. Billy claims that this testimony does not fall within the § 27-803(3) exception because the exception applies only to statements made by a declarant patient, not to statements made by a third party. We disagree.
Section 27-803(3) provides an exception to the hearsay rule, regardless of the availability of the declarant, for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." This exception is identical to Fed. R. Evid. 803(4).
[3] Although the heart of this exception lies in statements made by a patient to a treating physician, the exception casts its net wider than the patient-physician relationship. Under the federal and Nebraska rules of evidence, statements admissible under the medical diagnosis and treatment exception are not restricted to statements made by the patient and the statements need not be made to a physician. Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994); 2 McCormick on Evidence § 277 (John W. Strong et al., 5th ed. 1999). As a general rule, the exception applies to persons seeking medical assistance from persons who are expected to provide some form of health care. Vacanti v. Master Electronics Corp., supra. Thus, "[t]he declarant need not be the patientneed not be the person who is experiencing the symptoms to be diagnosed or treated. In other words, the statement need not refer to the declarant's own symptoms." G. Michael Fenner, The Hearsay Rule 202 (2003).
We conclude that the statements made by B.R.'s foster mother were admissible under § 27-803(3). B.R.'s foster mother observed first hand the conduct she subsequently described to Overby. The fact that the statements in question came from the patient's foster mother, not the patient herself, does not preclude their admissibility under § 27-803(3), as long as the evidence satisfactorily demonstrates that the circumstances under which the statements were made were such that the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment, that the declarant's statements were reasonably pertinent to such diagnosis or treatment, and further, that a doctor would reasonably rely on such statements. See State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004).
The record reflects that B.R. began seeing Overby in May 2004 for foster care adjustment purposes. Based on B.R.'s behavior in her foster home, concerns arose that B.R. had been sexually abused. Clearly, evidence that B.R. had been sexually abused was important to her medical diagnosis and psychological treatment, and therefore, information relating to that possibility was properly admitted under § 27-803(3). Hence, we conclude that Overby's testimony was admissible under § 27-803(3).
Motion for Summary Judgment
[4] Billy argues that the juvenile court erred in denying what he terms his motion for summary judgment made at the close of the State's case. We need not address whether the standard for summary judgment had been met because a juvenile court does not have the power to grant summary judgment. In re Interest of Jaden H., 263 Neb. 129, 638 N.W.2d 867 (2002). Based upon its substance, we treat Billy's motion as a motion to dismiss at the close of the State's evidence. The juvenile court overruled the motion, and Billy proceeded to present his case. A defendant who, after the overruling of a motion for dismissal made at the close of the plaintiff's evidence, adduces evidence on its own behalf waives any error on the motion for dismissal. Home Pride Foods v. Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001).
Supplemental Petition
Finally, Billy argues that the court erred in finding that the allegations contained in the supplemental petition were true by a preponderance of the evidence.
[5] In order for a juvenile court to assume jurisdiction of minor children under § 43-247(3)(a), the State must prove the allegations of the petition by a preponderance of the evidence. See In re Interest of Heather R. et al., 269 Neb. 653, 694 N.W.2d 659 (2005). The court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of § 43-247. In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647 (2005).
The supplemental petition alleged that Billy is the stepfather of B.R. and the natural father of E.B. and N.B. The parties stipulated to this allegation. The supplemental petition alleged that the children came within the meaning of § 43-247(3)(a), lacking proper parental care by reason of the fault or habits of Billy in that Billy subjected B.R. to inappropriate sexual contact, placing the children at risk of harm.
At the adjudication hearing, the State presented evidence regarding B.R.'s sexualized behavior in her foster home. B.R.'s therapist opined that this behavior indicated prior sexual abuse. Evidence was also presented regarding allegations made by B.R. that her "daddy" had inappropriately touched her.
Billy testified that he had never inappropriately touched B.R. or E.B. However, we give deference to the juvenile court's decision to reject Billy's testimony on this matter. SeeIn re Interest of Corey P. et al., supra. When the evidence is in conflict in a juvenile case, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over another. Id.
Reviewing the evidence in its totality, we conclude that the record supports the finding that the allegations contained in the supplemental petition are true and that the children come within the meaning of § 43-247(3)(a).
CONCLUSION
We conclude that Overby's testimony describing B.R.'s conduct, which was relayed to her by B.R.'s foster mother, was admissible under § 27-803(3). We further conclude that the juvenile court did not err in overruling Billy's motion to dismiss at the close of the State's evidence and that the court properly found that the allegations contained in the supplemental petition were true by a preponderance of the evidence.
AFFIRMED.
Connolly, J., participating on briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345633/ | 270 Neb. 972
STATE OF NEBRASKA, APPELLEE,
v.
JaRON DEAN, APPELLANT.
No. S-05-626.
Supreme Court of Nebraska.
Filed January 20, 2006.
JaRon Dean, pro se.
Jon Bruning, Attorney General, and James D. Smith for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
STEPHAN, J.
JaRon Dean appeals from the denial of his motion for postconviction DNA testing pursuant to the DNA Testing Act, Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Cum. Supp. 2004). We affirm the judgment of the district court for Lancaster County.
BACKGROUND
Dean was charged with first degree murder and the use of a firearm to commit a felony in connection with the 1992 shooting death of Deron Haynes. Following a bench trial in 1993, Dean was found guilty of second degree murder and use of a firearm to commit a felony and was sentenced to life imprisonment. Dean's convictions and sentences were affirmed in State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). His motion for postconviction relief was denied by the district court, and that judgment was affirmed by this court in State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
Appearing pro se, Dean initiated this proceeding in March 2004. In his operative motion for postconviction DNA testing filed on December 29, 2004, Dean requested that DNA testing be conducted on numerous exhibits received in evidence at his trial, including bullet fragments, bullet casings, ammunition, and the AK-47 rifle Dean was alleged to have used in the shooting. Dean alleged that such testing was not available at the time of his trial and that if conducted, it would "not produce any biological material associated with him" and thus would prove that he was "not the shooter and had nothing whatsoever to do with the charge [sic] crime." Attached to Dean's motion were his affidavit and those of two persons who had testified at his trial as witnesses for the State. Dean also filed a motion for discovery and a request for appointment of counsel pursuant to § 29-4122.
The State filed a motion and brief to deny Dean's requests. Attached to the State's motion were two affidavits: an affidavit of a medical doctor who was an assistant professor at the University of Nebraska Medical Center and director of the human DNA identity laboratory located there and an affidavit of the chief deputy county attorney in Lancaster County who was one of the prosecutors in the three trials associated with the murder of Haynes. At a hearing held on March 14, 2005, in which Dean participated by telephone, the State reoffered portions of the trial record which were received over Dean's objection. None of the affidavits filed by Dean in support of his motion or by the State in support of its resistance were offered or received into evidence. In an order entered on April 26, the district court denied Dean's motion for DNA testing and his request for appointment of counsel. The court concluded that because many persons had handled the evidence in question after the commission of the crime, Dean had not established that "the evidence has been retained under circumstances likely to safeguard the integrity of its original condition." The court also found that because there was no question as to whether Dean handled the AK-47 rifle involved in the shooting, DNA testing of the items would not produce noncumulative, exculpatory evidence relevant to Dean's claim of wrongful conviction. The record does not include any ruling on Dean's discovery motion.
ASSIGNMENTS OF ERROR
Dean asserts nine assignments of error which can be grouped and restated as three. Dean contends that the district court erred (1) by denying his motion for DNA testing, (2) by denying his request for appointment of counsel, and (3) by ruling on those motions without first ruling on his motion for discovery.
STANDARD OF REVIEW
[1,2] A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. McDonald, 269 Neb. 604, 694 N.W.2d 204 (2005); State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003). In an appeal from a proceeding under the DNA Testing Act, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. State v. Lotter, supra; State v. Poe, 266 Neb. 437, 665 N.W.2d 654 (2003).
ANALYSIS
The DNA Testing Act provides in relevant part:
(1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgment requesting forensic DNA testing of any biological material that:
(a) Is related to the investigation or prosecution that resulted in such judgment;
(b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the biological material's original physical composition; and
(c) Was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.
. . . .
(5) Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that such testing was effectively not available at the time of trial, that the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and that such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced.
§ 29-4120.
[3] We note that both parties rely on information included in affidavits which they filed in the district court. The affidavits are included in the transcript, but they do not appear in the bill of exceptions because they were never offered or received in evidence. An affidavit used as evidence with respect to a motion before a district court cannot be considered on appeal unless it has been offered and received in evidence and preserved in and made a part of the bill of exceptions. See, Altaffer v. Majestic Roofing, 263 Neb. 518, 641 N.W.2d 34 (2002); Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368 (2000). Because none of the affidavits filed in this case were received in evidence or included in the bill of exceptions, we do not consider them in resolving this appeal.
Thus, the only evidentiary materials before us are those portions of the trial record which were marked and received in evidence at the hearing on Dean's motion for DNA testing. Summarized, this evidence reflects that while Dean initially denied participation in the shooting, he subsequently requested a meeting with a Lincoln police sergeant and, after being advised of his Miranda rights, admitted that he had fired the AK-47 assault rifle to which the fatal shot was traced. In his confession, Dean specifically stated that he thought the weapon was semiautomatic because he had to "pull the trigger." A witness testified at Dean's trial that Dean was in possession of the AK-47 rifle when the shooting began. At trial, Dean's counsel did not dispute that Dean had fired the rifle, but, rather, argued that Dean had little knowledge of firearms and intended no harm, but only sought to scare the victim. Defense counsel did not challenge either the testimony of witnesses who stated that they saw Dean handling the AK-47 rifle or the testimony concerning Dean's confession to the police.
We turn to the dispositive question of whether the district court abused its discretion in concluding that DNA testing would not produce noncumulative, exculpatory evidence relevant to Dean's claim that he was wrongfully convicted. See § 29-4120. The DNA Testing Act defines exculpatory evidence as evidence "which is favorable to the person in custody and material to the issue of the guilt of the person in custody." § 29-4119. Dean asserts in his motion that the requested testing "will not produce any biological material associated with him" and thus "will stand as sufficient evidence" that he "was not the shooter." However, even if Dean is correct and DNA testing would not detect the presence of his DNA on the objects in question, the result would be at best inconclusive, and certainly not exculpatory.
As an initial matter, DNA testing presupposes at least two samples of biological material. See State v. Lotter, 266 Neb. 758, 770, 669 N.W.2d 438, 447 (2003) (stating that "function of testing DNA evidence is to determine whether the sample being examined contains genetic characteristics similar to a sample from a known individual"). Dean has not identified or made any showing regarding the circumstances, if any, under which the handling or discharge of a firearm or ammunition would yield a comparative sample of any residual biological material containing DNA years after the crime was committed. The presence of such a sample is an essential premise of Dean's claim regarding the import of the absence of his own DNA.
Furthermore, even assuming a biological sample did exist and that Dean's DNA was absent from that sample, on the record before us, it would be mere speculation to conclude that the absence of Dean's DNA on the firearm and ammunition would exclude him as being the person who fired the fatal shot. This is particularly so in view of the persuasive and undisputed trial evidence to the contrary. See State v. Lotter, 266 Neb. at 770, 669 N.W.2d at 448 (holding that "mere speculation" to conclude that absence of murder victim's blood on defendant's clothing and presence on accomplice's clothing would establish that accomplice and not defendant had fired fatal shots). We conclude that the trial court did not abuse its discretion in refusing DNA testing because even if such tests produced the result that Dean predicts, the result would not be exculpatory.
Dean also assigns error in the district court's denial of his request for appointment of counsel. Under the DNA Testing Act, upon a showing that that DNA testing may be relevant to a claim of wrongful conviction, the court shall appoint counsel for an indigent person. § 29-4122. For the reasons discussed above, Dean did not make the requisite showing that DNA testing may be relevant to his claim of wrongful conviction, and the district court therefore did not abuse its discretion in denying his request for appointment of counsel.
[4,5] Finally, Dean assigns that the district court erred by ruling on the previous motions without first ruling on his motion for discovery. The record reflects that the district court took Dean's discovery motion under advisement but never ruled on it. In appellate proceedings, the examination by the appellate court is confined to questions which have been determined by the trial court. State v. Poe, 266 Neb. 437, 665 N.W.2d 654 (2003). We have long held that a party who fails to insist upon a ruling to a proffered objection waives that objection. See Toombs v. Driver Mgmt., Inc., 248 Neb. 1016, 540 N.W.2d 592 (1995) (party in civil action failed to insist on ruling on motion to compel production); State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992) (defendant in criminal action failed to insist on ruling on challenge of juror for cause). See, also, State v. Rodriguez, 6 Neb. Ct. App. 67, 569 N.W.2d 686 (1997) (defendant in criminal action failed to insist on ruling on motion for directed verdict). Because there was no ruling on Dean's motion, and because Dean did not insist upon a ruling, any questions regarding his motion are not properly before us.
CONCLUSION
For the reasons discussed, we conclude that Dean's assignments of error are without merit, and we affirm the judgment of the district court.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345630/ | TIA L. KANEFF, Appellant,
v.
DELAWARE TITLE LOANS, INC.
No. 08-1007.
United States Court of Appeals, Third Circuit.
Argued: January 15, 2009.
Filed: November 24, 2009.
Robert F. Salvin (Argued) Community Impact Legal Services, Inc. Chester, PA 19013, Attorney for Appellant.
Mark J. Levin (Argued) Ballard, Spahr, Andrews & Ingersoll LLP Philadelphia, PA 19103, Attorney for Appellee.
Before: SLOVITER, BARRY, and SILER,[*] Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant asks us to confront what has become a vexing issue in our current economy here and elsewhere the extent to which low income borrowers may have access to legal remedies that they waived in a desperate attempt to borrow needed cash. Because many of the lending contracts contain an arbitration provision, there are often issues relating to the permissible scope of the arbitration and the role of the arbitrator. These are the principal issues in the appeal before us. In deciding this appeal, we must balance the rights and legitimate expectations of the parties, but only in terms of deciding whether the arbitration provision should be enforced.
I.
The Operative Facts[1]
The Appellant, Tia Kaneff, is representative of a low income borrower. She separated from her husband in September 2005, and moved into an apartment in Plymouth Meeting, Pennsylvania, with her two children. Plymouth Meeting is approximately 30 miles from the border between Pennsylvania and Delaware. According to the complaint, Kaneff drives a 1994 Buick Park Avenue with 90,000 miles on it that is valued at about $3,000. She works as a Frozen Food Manager at a Giant Supermarket in Plymouth Meeting, Pennsylvania. Her car is her sole means of transportation to her job.
In November 2005, Kaneff realized she would not have enough money to pay rent for December. She tried to get a loan from a bank but was turned down. She then sought a car title loan from appellee Delaware Title Loans, Inc. ("DTL"), which is located in Claymont, Delaware, less than a mile from the border with Pennsylvania.
After driving a short distance to DTL's office, Kaneff sought a loan for $500. To get this amount, Kaneff was first ordered to pay a $5 fee to the Department of Motor Vehicles for recording the lien on her car and a $45 fee to Continental Car Club for an unknown purpose (the contract provides that DTL can retain a portion of these fees, and Kaneff noted in her affidavit that she believed the car club fee was for "the purchase of some sort of insurance"). App. at 50. These fees brought the total amount financed to $550. DTL charged an annual interest rate of 300.01%. The finance charge for the $550 borrowed by Kaneff was $135.62 for the month-long term of the loan, resulting in a total expected payment at the end of the month of $685.62.
Kaneff claims that she did not understand that her loan was only for a month, and instead believed that she would have six months of $136 monthly payments (for a total payoff amount of $816). In fact, that $136 ($135.62) was merely what she owed in interest for one month. Her single payment of $685.62 was due on December 23, 2005. Believing that her total monthly payment was $136, Kaneff paid as follows:
$136 on December 30, 2005 (this first payment was made after the loan was already scheduled to be paid in full)
$136 on January 20, 2006
$145 on February 25, 2006 (made late)
$125.50 on March 31, 2006 (also made late, and for below the payment amount, possibly because she believed it was offset by the prior month)[2]
$150 on April 23, 2006
$150 on May 22, 2006
In June 2006, the month after Kaneff made the sixth payment, she called DTL to learn what her balance was, and was told she now owed $783. Thus, Kaneff had paid DTL a total of $842.50 within six months of borrowing $550 and was far from finished. Kaneff refused to pay any more, and DTL began calling Kaneff "incessantly, one or more times a day, demanding payment." App. at 53. The company also called Kaneff on her cell phone and at work, despite Kaneff telling them not to do so. Finally, on September 21, 2006, DTL repossessed Kaneff's car. Kaneff received a letter on September 29, 2006, stating that she would need to pay $1415.60 to get her car back, as otherwise it would be sold sometime after October 8, 2006.
Kaneff filed a putative class action against DTL in Pennsylvania state court, which included a request for a temporary restraining order and a preliminary injunction seeking the return of her car, which she needed to continue working.
The state court granted Kaneff's motion for a preliminary injunction and directed DTL to return Kaneff's car. DTL then removed the action to the United States District Court for the Eastern District of Pennsylvania under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2). The District Court granted DTL's motion to compel arbitration, and later dismissed the case with prejudice. Kaneff appeals these decisions.
II.
The Contract
The contract Kaneff signed with DTL states, "[t]his agreement shall be construed, applied and governed by the laws of the State of Delaware. The unenforceability or invalidity of any portion of this Agreement shall not render unenforceable or invalid the remaining portions hereof." App. at 38. The contract's arbitration clause requires both parties to arbitrate any disputes, but there is a significant exception to the parties' requirement to arbitrate. DTL, the lender, is not required to enter arbitration before seeking repossession of the vehicle through judicial process or self-help.[3]
If the borrower seeks arbitration the borrower must pay the first $125 of the filing fee, after which the lender agrees to pay the remaining arbitration costs. Additionally, "[t]he parties agree to be responsible for their own expenses, including fees for attorneys, experts and witnesses." App. at 38. There are block letters at the bottom of the agreement that reiterate that the borrower has waived all rights to litigate any claim in court and that the borrower also waives the right to participate in any class action or class-wide arbitration unless the claim has already been certified by the date of the agreement.[4]
III.
Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. § 1332(d)(2). DTL met the $5 million threshold for jurisdiction under the Class Action Fairness Act by claiming that, under Kaneff's theory of liability, it had received $3,846,481 in interest from Pennsylvania residents over the four years prior to the suit, and faced potential treble damage liability. This court has jurisdiction under 28 U.S.C. § 1291.
A district court decides a motion to compel arbitration under the same standard it applies to a motion for summary judgment. Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir. 1980). The party opposing arbitration is given "the benefit of all reasonable doubts and inferences that may arise." Id. On appeal, a "question concerning the applicability and scope of an arbitration agreement" is subject to de novo review. Harris v. Green Tree Fin. Corp., 183 F.3d 173, 176 (3d Cir. 1999).
IV.
Discussion
In the case before us, Kaneff challenges both the arbitration provision and the contract as a whole. Her challenge to the contract is not one of alleged procedural unconscionability, such as whether the type was too small to be legible. Instead, her claim is one of substantive unconscionability, similar to the one raised in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), where the borrowers claimed that the contract violated state lending and consumer-protection laws and was therefore unenforceable.
In Buckeye, the borrowers brought a putative class action against their lender in Florida state court, alleging that the lender charged usurious interest rates. Id. at 443. The lender moved to compel arbitration based on an arbitration clause in the contracts. Id. at 442-43. The Court noted that there are two types of challenges to an arbitration agreement:
One type challenges specifically the validity of the agreement to arbitrate. The other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract's provisions renders the whole contract invalid. Respondents' claim is of this second type.
Id. at 444 (citation and footnote omitted). In considering the case before it, the Court stated, that "[t]he crux of the complaint is that the contract as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge." Id. The Court explained that plaintiffs' allegations that the lender charged usurious interest rates and that the agreement violated various Florida lending and consumer-protection laws related to the entire contract, rather than specifically to the arbitration provision. Id. at 446. As a result, the Court held that the challenge was one that must go to the arbitrator. Id. at 446, 449.
It reiterated, referring to its prior opinions in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), and Southland Corp. v. Keating, 465 U.S. 1 (1984), "unless the challenge is to the arbitration clause itself, the issue of the contract's validity is considered by the arbitrator in the first instance." Buckeye, 546 U.S. at 447. It also reiterated, referring to Howsam v. Dean Witter Reynolds, 537 U.S. 79, 84 (2002), "a gateway dispute about whether the parties are bound by a given arbitration clause raises a `question of arbitrability' for a court to decide."
In making the determination of arbitrability, we must first consider whether to apply Pennsylvania law or Delaware law. Kaneff argues that the contract is unconscionable under Pennsylvania law, a challenge that requires us to conduct a choice of law analysis inasmuch as Delaware law is specified in the contract.
We exercise plenary review over the question of which state's substantive law governs. Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006). It is now black letter law that "in an action based on diversity of citizenship jurisdiction, we must apply the substantive law of the state in which the District Court sat, including its choice of law rules." Id. (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Here, that state is Pennsylvania.
Applying Pennsylvania's choice of law rules, we must determine whether there is a true conflict between the application of Delaware law and Pennsylvania law. As discussed below, a true conflict exists here. Because this is a contract case, the law of the state specified in the contract will be applied unless:
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188 [of the Restatement (Second) of Conflicts of Law], would be the state of the applicable law in the absence of an effective choice of law by the parties.
Berg, 435 F.3d at 463-64 (quoting Restatement (Second) of Conflicts of Law § 187(2) (1971)). See also Gay v. CreditInform, 511 F.3d 369, 389 (3d Cir. 2007) ("it seems reasonable to use Pennsylvania law in evaluating the choice-of-law question"). Inasmuch as Delaware is where the contract was signed, we conclude that part (a) above is satisfied because there is a substantial relationship between the state of choice and the transaction. Therefore, our focus is on part (b) above.
Kaneff argues that applying Delaware law rather than Pennsylvania law to the arbitration clause would violate a fundamental policy of Pennsylvania because the arbitration agreement would be considered unconscionable under Pennsylvania law. She focuses primarily on the different treatment accorded the issue of usury in Pennsylvania and in Delaware. The annual interest provided in the DTL contract is over 300%. Delaware has no usury law. In contrast, Pennsylvania has a general usury statute, Act 6, 41 Pa. Cons. Stat. Ann. §§ 101 et seq., prohibiting interest charges of over 6% a year, id. § 201, and authorizing those charged higher rates to sue in an action in which they may also collect attorney's fees and costs, id. § 503. There can be no question that there is a true conflict between Delaware and Pennsylvania in their approach to and treatment of usurious interest. Although we do not consider the unconscionability of the agreement as a whole, an issue that Buckeye teaches is for the arbitrator, we do consider the usury issue as part and parcel of whether the arbitration clause should be enforced. The choice of law analysis cannot be divorced from that issue.
Kaneff contends that the usury statute embodies a fundamental policy of Pennsylvania because:
[T]he statute does not allow for waiver, 41 [Pa. Cons. Stat. Ann.] § 408, violations are punished under Pennsylvania's criminal law, [i]d. § 505, and plaintiffs are granted an automatic right to collect punitive damages without any showing of outrageous, wanton or malicious conduct. Id. §§ 502 & 504. See Olwine v. Torrens, 236 Pa. Super. 51, 56 (1975) ("[t]he statute against usury forms a part of the public policy of the state and cannot be evaded by any circumvention or waived by the debtor") (citation omitted). The usury statute also gives a prevailing plaintiff the right to collect attorney's fees and costs from the defendant. [41 Pa. Cons. Stat. Ann.] § 503. This last point is important in connection with DTL's arbitration clause because one of the restrictive covenants DTL is trying to enforce makes each party responsible for their own fees and costs.
Appellant's Br. at 17-18.
Kaneff argues that "[s]ection 408 of Act 6, 41 [Pa. Cons. Stat. Ann.] § 408, governs choice of law with respect to the interest rate and liability. This is the section of the act that invalidates waivers and states expressly that Act 6 applies, `[n]ot withstanding any other law,' which certainly includes Delaware law." Appellant's Br. at 18. DTL responds that the Pennsylvania statute is inapplicable to a loan originating in Delaware and made by a Delaware corporation. It argues that unconscionability should not be equated with a fundamental policy of the state, citing a 1985 Pennsylvania Superior Court decision for the proposition that unconscionability "was still a novel and undefined concept in Pennsylvania's jurisprudence." Appellee's Br. at 14 (citing Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138 (Pa. Super. Ct. 1985)). Of course, in the more than two decades since the Superior Court's decision in Rawlinson, there have been numerous cases that have focused on unconscionability as a defense which is no longer a novel concept.
The parties marshal the factors often considered in choice-of-law determinations. Kaneff argues that Pennsylvania has the greater interest in the transaction because it is where she lives and, therefore, Pennsylvania has a strong interest in applying its consumer protection laws for the benefit of its residents. Pennsylvania is also the location of the collateral, Kaneff's car, and DTL was required to enter Pennsylvania in order to repossess the car. Finally, Kaneff argues that Pennsylvania's interest is superior to that of Delaware "because Pennsylvania will have to live with the aftermath of the transaction." Appellant's Br. at 20 (emphasis omitted). Kaneff posits that if her automobile were repossessed and she lost her employment as a result, it is Pennsylvania that would be obliged to pay unemployment and medical benefits, while deprived of the taxes generated from her former wages.
DTL, in contrast, argues that Delaware has the greater interest in the transaction because:
(1) the loan agreement (a) w as entered into and signed in Delaware by a Delaware corporation and a Pennsylvania resident who drove 30 miles to Delaware to obtain the loan, (b) requires repayment in Delaware and (c) provides that the agreement shall be "construed, applied and governed" by Delaware law, (2) the lender (a) is incorporated in Delaware, (b) is licensed and regulated in Delaware by the Delaware State Bank Commissioner and (c) has its only offices in Delaware.
Appellee's Br. at 18. DTL also argues that "Pennsylvania's Business Corporations Law provides that a foreign business corporation is not doing business in the Commonwealth by carrying on in the Commonwealth the acts of, inter alia, creating or acquiring security interests in personal property or `[s]ecuring or collecting debts or enforcing any rights in property securing them.'" Appellee's Br. at 23 (quoting 15 Pa. Cons. Stat. Ann. § 4122(a)(8)).
A recent decision of the Pennsylvania Commonwealth Court, Cash America Net of Nevada, LLC v. Pennsylvania Department of Banking, 978 A.2d 1028, 1030 (Pa. Commw . Ct. 2009), could shed some light on this issue. In the course of that court's decision, which dealt with the policy of the Pennsylvania Department of Banking "that engaging in nonmortgage consumer lending to Pennsylvania residents by any means . . . constitutes engaging in such business `in this Commonwealth' as contemplated by section 3.A of the Consumer Discount Company Act (CDCA)," id. at 1031, the court commented on the Department's "special knowledge of how such loans can affect the social life of the community," id. at 1037. It referred to a prior opinion of the Pennsylvania Supreme Court, Pennsylvania Department of Banking v. NCAS of Delaware, LLC, 948 A.2d 752, 754 (2008), as stating:
[T]he methods used by usurious lenders, often involv[e] subterfuge, to attempt to circumvent fundamental public policy. The Supreme Court noted the well-established principle articulated over 100 years ago in Earnest v. Hoskins, 100 Pa. 551 (1882), that the Commonwealth's public policy prohibits usurious lending, and it cited a decision entered almost 70 years ago in [Equitable Credit & Discount Co. v. Geier, 342 Pa. 445 (1941)], holding that it is well settled in constitutional law that the regulation of interest rates is a subject within the police power of the state particularly when it comes to cases involving small loans, which profoundly affect the social life of the community.
Id. at 1038.
Under all of the circumstances set forth above, Pennsylvania has a materially greater interest than Delaware in the determination of whether the arbitration clause is unconscionable. Although the issue is not free from doubt, we conclude that Pennsylvania's interest in the dispute, particularly its antipathy to high interest rates such as the 300.01 percent interest charged in the contract at issue, represents such a fundamental policy that we must apply Pennsylvania law.
In doing so, we note that Pennsylvania law, like federal law, favors the enforcement of arbitration agreements. Salley v. Option One Mortgage Corp., 925 A.2d 115, 119 n.2 (Pa. 2007). Both require that arbitration agreements be enforced as written and allow an arbitration provision to be set aside only for generally recognized contract defenses, such as unconscionability. Thibodeau v. Comcast Corp., 912 A.2d 874, 880 (Pa. Super. C t. 2006), appeal denied sub nom. Afroilan v. AT&T Wireless & Panosonic Telecomm. Sys. Co., 937 A.2d 442 (Pa. 2007)). We have little difficulty concluding that Kaneff's agreement to arbitrate would not be considered unconscionable under Pennsylvania law.
Our choice of law determination may not necessarily apply to each challenged provision. The Buckeye Court held, "as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." Buckeye, 546 U.S. at 445. As this court stated in Berg, an opinion authored by then-judge (now Justice) Alito, "[b]ecause choice of law analysis is issue-specific, different states' laws may apply to different issues in a single case." Berg, 435 F.3d at 462.
In addition to her challenge to the usurious interest rate, Kaneff argues that the arbitration clause is unconscionable because:
(a). DTL's one-way arbitration clause is unconscionable because it prevents borrowers from defending against repossessions.
(b). The class action waiver in DTL's arbitration agreement is unconscionable because it shields DTL from prospective injunctive relief so that an arbitrator is powerless to order DTL to cease engaging in on-going illegal conduct.
(c). The cost sharing clause in DTL's arbitration clause is unconscionable because it denies a plaintiff statutory attorney's fees, making arbitration too expensive for a plaintiff to pursue.
(d). The mandatory $125 filing fee is unconscionable because it is an additional impediment to bringing a small claim against DTL and does not allow for waiver for a low income litigant.
(e). The provisions are not susceptible to severance because they are included in the arbitration clause as part of a scheme to protect potentially illegal conduct from legal scrutiny.
We, of course, are only deciding the validity of the arbitration clause and consider Kaneff's claims in that context only, just as the arbitrator will consider those claims when s/he decides the validity of the agreement as a whole. Suffice it to say that, with one exception, we find for our purposes that those challenges are wanting. The exception is the provision that "[t]he parties agree to be responsible for their own expenses, including fees for attorneys, experts and witnesses." App. at 38. That provision is likely unconscionable. See Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 278-79 (3d Cir. 2004); cf. Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000) (noting that prohibitively expensive arbitration may render a clause unenforceable). The provision, how ever, is severable pursuant to the severability clause of the agreement. See App. 38. For the reasons set forth above, we will affirm the District Court's order compelling arbitration and reject Kaneff's arguments without further discussion.
NOTES
[*] Hon. Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.
[1] We take the facts from the complaint, the contract attached thereto, and Kaneff's affidavit.
[2] Kaneff does not explain the different payment amounts or how DTL reacted to the late payments.
[3] The text of the Arbitration provision, as relevant here, reads:
Any and all disputes, controversies or claims (collectively, "claims" or "claim"), whether preexisting, present or future, between the BORROWER and LENDER, or between BORROWER and any of LENDER's officers, directors, employees, agents, affiliates, or shareholders, arising out of or related to this Agreement (including LENDER'S right to seek a money judgment against BORROWER in the event of default, but excluding LENDER's right to seek possession of the Collateral in the event of default by judicial or other process including self-help repossession.) shall be decided by binding arbitration under the [Federal Arbitration Act]. Any and all claims subject to arbitration hereunder, asserted by any party, will be resolved by an arbitration proceeding which shall be administered by the American Arbitration Association.
App. at 38 (emphasis in original).
[4] The relevant provision reads as follows:
BY AGREEING TO ARBITRATE DISPUTES, BORROWER WAIVES ANY RIGHT BORROWER MAY OTHERWISE HAVE HAD TO LITIGATE CLAIMS THROUGH A COURT OR TO HAVE A JURY TRIAL. FURTHER, UNLESS A CLAIM IS ALREADY CERTIFIED BEFORE THE DATE OF THIS AGREEMENT, BORROWER HEREBY AGREES BORROWER MAY NOT PARTICIPATE IN A CLASS ACTION OR A CLASS-WIDE ARBITRATION, EITHER AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OR CLAIMANTS PERTAINING TO SUCH CLAIM AND BORROWER HEREBY EXPRESSLY WAIVES BORROWER'S RIGHT TO JOIN OR REPRESENT SUCH A CLASS.
App. at 38. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345636/ | 708 N.W.2d 251 (2006)
270 Neb. 891
In re Application of David Matthew Zaritzky BROWN for Admission to the Nebraska State Bar.
No. S-34-050002.
Supreme Court of Nebraska.
January 13, 2006.
*254 David Zaritzky Brown, pro se.
Mark A. Fahleson and Glen Th. Parks, of Rembolt Ludtke, L.L.P., for Nebraska State Bar Commission.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
PER CURIAM.
I. INTRODUCTION
David Matthew Zaritzky Brown is a Canadian attorney seeking admission to the Nebraska bar. He filed an application with the Nebraska State Bar Commission (Commission) seeking admission without examination as a Class I-A applicant. See Neb. Ct. R. for Adm. of Attys. 5A(1) (rev. 2005). The Commission denied Brown's application on the basis that he did not possess a first professional degree from a law school approved by the American Bar Association (ABA) as required by rule 5C. Thereafter, at Brown's request, a hearing was held before the Commission, and Brown presented evidence regarding his educational qualifications. The Commission again denied Brown's request, and he appeals.
II. FACTS
Brown is a citizen of Canada and has been granted permanent resident status to work in the United States. He received a bachelor of arts degree from the University of Toronto in 1993 and a bachelor of laws degree (LL.B.) from the University of Windsor in 1996.
Brown earned his LL.B. after successfully completing 3 years of legal studies at the University of Windsor Faculty of Law (Windsor) in Ontario, Canada. Windsor is 1 of 16 English-speaking, common-law Canadian law schools. Its LL.B. program is approved by the Ontario Ministry of Education, and an LL.B. from Windsor is recognized by all the provincial law societies, as well as the Federation of Law Societies of Canada, as providing the prerequisite degree for admission to the bar in all the provinces and territories except Quebec, where the law is based on civil code.
Mary Gold, an associate dean and associate professor at Windsor who holds both an ABA-approved juris doctor degree (J.D.) and a Canadian LL.B., opined that based on her studies at an ABA-accredited law school and her experience at Windsor, the legal education at Windsor is equivalent to that available at an ABA-accredited institution. She stated that many Windsor graduates apply for admission into various state bars in the United States and are successful on their bar examinations.
Brown successfully completed the required core courses at Windsor, including administrative law, contracts, civil procedure, constitutional law, criminal law and procedure, legal process (introduction to common-law legal system), legal writing and research, property, and torts. Brown's course of study also involved classes in business associations, corporate law/secured transactions, debtor-creditor relations, environmental law, evidence, family law, legal history, municipal law, public international law, and remedies. Additionally, Brown participated in the clinical law and advocacy program at Windsor, where he gained practical experience in interviewing clients, negotiating, handling appeals on an administrative level, and representing clients.
Windsor is ineligible for ABA accreditation because it is a Canadian law school; however, its education has been ABA-approved for inclusion in a joint American-Canadian law degree program with the *255 University of Detroit Mercy School of Law (Detroit Mercy), an ABA-approved school located 15 minutes from Windsor. At the end of 3 years of concurrent study at Windsor and Detroit Mercy, successful students earn both a J.D. from Detroit Mercy and an LL.B. from Windsor. Associate Dean Gold stated she believes the educational experiences at Windsor and the ABA-accredited Detroit Mercy are similar enough to permit students to study seamlessly at both. Brown did not participate in the joint program because he could not afford the additional cost of the program.
To gain admission to the Law Society of Upper Canada (Ontario's bar association), Brown completed three required phases of the bar admissions process. Phase One was a 1-month skills program in which Brown learned to draft motions, affidavits, and memoranda; interview clients; and negotiate contracts. Phase Two (known as the period of articles) was a 1-year apprenticeship in the practice of law with a law society-approved law firm. During Brown's period of articles, he rotated through several of the firm's practice groups, including civil litigation, corporate and commercial, labor and employment, real estate, and tax and estate planning. Phase Three was a 3 ½-month period composed of nine modules. Eight modules consisted of instruction and examinations in core legal areas, including business law, family law, civil litigation, professional responsibility and practice management, real estate, estate planning, criminal law, and public law. The ninth module involved instruction and an examination in accounting.
Brown was admitted to the Ontario bar in February 1998. Thereafter, he was hired as an associate by the Canadian law firm where he had completed his articling requirement. He worked there for about a year practicing labor and employment law. He then joined another Canadian firm, where he practiced business immigration law for about 2 years. In particular, he assisted business clients with U.S. green card and H-1B (specialty occupation visa) applications.
Brown passed the California bar examination and was admitted to the California bar in December 2000. Brown joined a California law firm in January 2001. He practiced there for about 4 years in the areas of U.S. and Canadian business immigration law, facilitating the international movement of corporate professionals.
Brown decided to move to Nebraska because, among other reasons, his in-laws live here and a Nebraska law firm has hired him. Brown is currently in good standing with both the Law Society of Upper Canada and the California bar. No complaints have been filed against him in either jurisdiction.
In October 2004, Brown applied to be admitted to the Nebraska bar without examination. On December 16, the Commission denied Brown's application because he did not receive his law degree from an ABA-approved law school. Brown appealed the Commission's denial, and a hearing was held on January 21, 2005. Brown testified and presented evidence at the hearing. The Commission again denied Brown's application on the basis that he lacked a first professional degree from an ABA-approved law school. Brown now appeals to this court.
III. ASSIGNMENTS OF ERROR
Brown argues that the Commission erred in (1) determining that a Class I-A applicant is required to possess a first professional degree from an ABA-approved law school; (2) determining that it lacked discretion to examine whether Brown's Canadian educational credentials *256 were "at least equal to" those required for admission by examination under rule 5A(1)(b); (3) determining that the only available option for Brown to gain admission was through a Nebraska Supreme Court waiver of the educational requirement; and (4) not applying the functional-equivalent test set forth in In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (1998).
IV. STANDARD OF REVIEW
The Nebraska Supreme Court will consider the appeal of an applicant from a final adverse ruling of the Commission de novo on the record made at the hearing before the Commission. In re Application of Gluckselig, 269 Neb. 995, 697 N.W.2d 686 (2005); Neb. Ct. R. for Adm. of Attys. 15 (rev.2000).
V. ANALYSIS
The Nebraska Supreme Court is vested with the sole power to admit persons to the practice of law in this state and to fix qualifications for admission to the Nebraska bar. In re Application of Gluckselig, supra; In re Application of Collins-Bazant, supra. See Neb. Const. art. II, § 1, and art. V, §§ 1 and 25.
For purposes of bar admission, Class I-A applicants are those who (1) have been admitted to the bar of another state, (2) possess educational qualifications at least equal to those required at the time of application for admission by examination to the Nebraska bar, and (3) have passed an examination equivalent to the Nebraska bar examination and have passed the Multistate Professional Responsibility Examination with a score of at least 85. See, rule 5A(1); Neb. Ct. R. for Adm. of Attys. 16 (rev.2004).
The primary issues in this appeal are (1) whether a Class I-A applicant must possess a first professional degree from an ABA-approved law school and (2) if so, whether a waiver of that requirement is appropriate in this case.
1. EDUCATIONAL QUALIFICATIONS FOR CLASS I-A APPLICANTS
The Commission denied Brown's application because he lacked a first professional degree from an ABA-approved law school. Rule 5A(1)(b) requires a Class I-A applicant to have attained "educational qualifications at least equal to those required" of Class II applicants (i.e., those required to take the written examination). At the time of examination, Class II applicants must possess a J.D. from an ABA-approved law school. See, In re Appeal of Dundee, 249 Neb. 807, 545 N.W.2d 756 (1996); rule 5C. The issue is whether a Class I-A applicant must also possess a J.D. from an ABA-approved law school. In other words, Does the phrase "at least equal to" in rule 5A(1)(b) mean "at least the same as" for purposes of determining educational qualifications for bar admission?
Brown denies that the educational requirement of rule 5C (i.e., an ABA-approved J.D.) must directly govern Commission decisions regarding the educational qualifications of Class I-A applicants under rule 5A. Instead, applying dictionary definitions, Brown argues that the phrase "at least equal to" should be interpreted as requiring a Class I-A applicant's educational qualifications to be at a minimum "`like in quality, nature, or status'" to the qualifications required of Class II applicants. See brief for appellant at 12. Under this rendering, Brown contends that the Commission should have conducted a formal review of his LL.B. to determine if it is "`at least like in quality/nature/status'" to a J.D. from an ABA-approved law school. Id.
*257 The Commission asserts that educational qualifications "at least equal to" the rule 5C educational requirement mean that a Class I-A applicant must at least possess an ABA-approved J.D. The Commission argues that a straightforward reading of rule 5A indicates that any education that does not meet the minimum requirement of rule 5C is not "at least equal to" an education that does so qualify. The Commission also argues that our precedents imply that Class I applicants must possess a J.D. from an ABA-approved law school.
The Commission encourages us to impose a strict ABA-approved J.D. requirement because the Commission lacks sufficient standards by which to judge the equivalence of programs not approved by the ABA on a case-by-case basis. There is little case law and no regulatory basis upon which the Commission might assess whether another academic degree qualifies as "at least equal to" an ABA-approved J.D. Finally, the Commission points out that a denied applicant may petition this court to waive the educational requirement; thus, the Commission believes no harm would follow if we were to set forth a clear standard by interpreting rule 5A as requiring exactly the same educational qualifications as required by rule 5C. The Commission asks this court either to hold that the educational standards for Class I applicants are identical to those for Class II applicants or to give the Commission sufficient standards to apply when making equivalence determinations regarding educational qualifications.
Although none of our previous cases are exactly on point, they do provide helpful guidance. In In re Appeal of Dundee, 249 Neb. 807, 545 N.W.2d 756 (1996), an out-of-state attorney applied for admission to the bar without examination as a Class I-B applicant under rule 5A(2). Class I-B applicants must have been licensed to practice law in another state for 5 of the 7 years immediately preceding application, and they must possess "educational qualifications at least equal to those required" of applicants required to take the bar examination. See rule 5A(2). The applicant in In re Appeal of Dundee held a J.D. from a law school not approved by the ABA and a master of laws degree from a law school approved by the ABA.
In In re Appeal of Dundee, we held that the term "professional degree" in rule 5C contemplates only a J.D. We reasoned that by requiring applicants to possess a J.D. from an ABA-approved law school, we "ensure that all Nebraska lawyers receive their basic, `core' legal education according to the minimum standards promulgated by the ABA." 249 Neb. at 810, 545 N.W.2d at 759. Although we did not precisely address the issue of whether Class I applicants under rule 5A must have the same educational qualifications as Class II applicants under rule 5C, we did apply the rule 5C requirement to a Class I-B applicant and stated that the "[e]ducational qualifications are contained in rule 5C...." 249 Neb. at 809, 545 N.W.2d at 758. Moreover, as a result of our holding, we denied admission to a Class I-B applicant because he had not received a J.D. from an ABA-approved law school. Therefore, under the "at least equal to" language of rule 5A(2)(b), we have required a Class I-B applicant to have the same educational qualifications as a Class II applicant.
In In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (1998), the Commission denied a Canadian attorney's request to sit for the bar examination because she had not received a J.D. from an ABA-approved law school. Based on the clear language of rule 5C, this court concluded that "rule 5 cannot be interpreted in a way that would allow [the applicant], a *258 graduate of a law school not approved by the ABA, to be admitted to the bar upon examination." 254 Neb. at 619, 578 N.W.2d at 42.
In summary, our precedents show that we have interpreted rule 5C strictly to mean that those applying for admission by examination must possess a J.D. from an ABA-approved law school. See, In re Application of Gluckselig, 269 Neb. 995, 697 N.W.2d 686 (2005); In re Application of Collins-Bazant, supra; In re Appeal of Dundee, supra. We have also applied the rule 5C educational requirement for Class II applicants to a Class I-B applicant. See In re Appeal of Dundee, supra.
We hold that the educational qualifications required of a Class I-A applicant are the same as the requirement found in rule 5C (i.e., a first professional degree from an ABA-approved law school). We conclude that Brown's LL.B. attained at a Canadian law school does not satisfy the requirements of rule 5A. We therefore turn to the issue of whether a waiver is appropriate in this case.
2. WAIVER
Brown contends that if rule 5A(1) cannot be interpreted in a manner that would allow him to be admitted to the Nebraska bar, then this court should waive the educational qualifications requirement in his case.
(a) Commission's Role in Waiver Cases
The Commission found that Brown's Canadian LL.B. did not satisfy the educational qualifications requirement for Class I-A applicants. The Commission lacks the authority to waive this requirement. See In re Application of Gluckselig, supra. In In re Application of Gluckselig, we asked the Commission to submit a recommendation concerning waiver in cases where the Commission has denied an application. The Commission did not take a position on the question of waiver in this case, however, because it denied Brown's application prior to our decision in In re Application of Gluckselig.
Rule 5C requires that Class II applicants possess at the time of the examination a first professional degree (i.e., J.D.) from a law school approved by the ABA. See In re Appeal of Dundee, 249 Neb. 807, 545 N.W.2d 756 (1996). Class I applicants (those requesting admission without examination) are required to possess "educational qualifications at least equal to those required at the time of application for admission by examination to the bar of Nebraska." See rules 5A(1)(b) and (2)(b).
Before we discuss whether waiver is appropriate in this case, we shall review circumstances we have considered when determining whether to grant a waiver of the educational qualifications requirement. These considerations have been gathered from our three principal waiver cases: In re Application of Gluckselig, 269 Neb. 995, 697 N.W.2d 686 (2005); In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (1998); and In re Appeal of Dundee, supra. These considerations "should not be read as a `bright line' determination" of what educational qualifications an applicant must possess to obtain a waiver. See In re Application of Gluckselig, 269 Neb. at 1003, 697 N.W.2d at 693. Furthermore, we have made a distinction between graduates of U.S. law schools not approved by the ABA and graduates of foreign law schools, because the ABA does not accredit foreign law schools. See In re Application of Collins-Bazant, supra. Thus, these considerations apply only to cases in which the Commission has denied admission to applicants educated at foreign law schools.
(i) Educational Background
A threshold requirement for this court's waiving of rule 5C has been that the applicant *259 must possess a professional legal degree from a foreign law school. In In re Application of Collins-Bazant, the applicant held a Canadian LL.B., a graduate degree earned after 3 years of legal studies. In In re Application of Gluckselig, the applicant held a master's degree in law and legal science, which he had earned at a law school in the Czech Republic. We have held that a master of laws degree from a U.S. law school is not a viable substitute for an ABA-approved J.D. required under rule 5C. See In re Appeal of Dundee, supra.
When requesting a waiver, the applicant must "show that the education received at any particular school was functionally equivalent to the education provided at ABA-approved schools." In re Application of Collins-Bazant, 254 Neb. at 622, 578 N.W.2d at 43. Our waiver cases indicate that foreign-educated applicants provided extensive information regarding their academic background, including, among other aspects, the accreditation status of their law school, transcripts, official course descriptions, letters of recommendation from professors, and affidavits from law school officials describing the education offered at their schools.
This court has found significant whether the applicant has received education based on the English common law. In In re Application of Collins-Bazant, we waived rule 5C for an applicant who graduated from a foreign law school based on English common law. In In re Application of Gluckselig, we waived rule 5C for an applicant who graduated from a foreign law school based not on English common law, but on Roman civil law; however, we took into account that the applicant's extensive legal education included significant studies based on the common law. He spent a year of study at the University of Nebraska College of Law and the University of Michigan Law School, earning a total of 44 credit hours.
Although we have refused to make a bright-line determination regarding the legal courses required as prerequisites to a waiver, see In re Application of Gluckselig, supra, we have recognized certain legal courses as examples of basic, core courses deemed "`minimally necessary to be a properly-trained attorney,'" In re Appeal of Dundee, 249 Neb. 807, 811, 545 N.W.2d 756, 759 (1996). These courses include civil procedure, contracts, constitutional law, criminal law, evidence, family law, torts, professional responsibility, property, and trusts and estates. The Commission should not construe this listing of courses as a "checklist," but it should consider whether an applicant's education includes exposure to a range of foundational substantive areas of law.
(ii) Exposure to U.S. Law
We have also considered the extent to which an applicant had been exposed to U.S. law. In granting a waiver to a Canadian-educated attorney in In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (1998), we noted the applicant's efforts to become acquainted with U.S. and Nebraska law. The Commission may consider similar aspects of a foreign-educated applicant's background when making a waiver recommendation to this court.
The applicant in In re Application of Gluckselig, 269 Neb. 995, 697 N.W.2d 686 (2005), while enrolled in a law school in the Czech Republic, took several international law classes focusing in part on U.S. law, and he also completed a 112-page thesis which involved a comprehensive comparison of the European Union and U.S. laws on the topic of choice-of-law and forum clauses in Internet-based transactions. Further, while still enrolled in the foreign law school, the applicant studied at the *260 University of Nebraska College of Law, earning 19 credit hours. In addition to his academic credentials, the applicant had spent several months as a clerk for two law firms in Lincoln. He had also sat for and passed the New York bar examination, and he had taken and passed the Multi-state Professional Responsibility Examination. Thus, our de novo review of the record indicated that the applicant had received "significant exposure to U.S. law." Id. at 1002, 697 N.W.2d at 692.
(b) Waiver in Present Case
Following the denial of an application and a hearing before the Commission, this court will consider a waiver of rule 5C to allow a graduate of a foreign law school based on the English common law to take the Nebraska bar examination upon proof that the education he or she received was equivalent to that for a J.D. available at an ABA-approved law school. In re Application of Collins-Bazant, supra. Although this pronouncement was made in a case involving an applicant seeking admission by examination, the principle remains the same for a foreign-educated applicant seeking admission without examination, because the issue is whether to waive the educational qualifications requirement not the bar examination requirement.
We are guided by certain principles when considering whether waiver of the educational qualifications requirement is appropriate. The "admission rules [are] intended to `weed' out unqualified applicants, not to prevent qualified applicants from taking the bar." In re Application of Gluckselig, 269 Neb. at 1001, 697 N.W.2d at 691. See In re Application of Collins-Bazant, supra. Also,
while the use of ABA approval as a criterion allows courts to evaluate an applicant's legal education effectively and expeditiously without imposing a burden on the court's resources, a court must also ensure that applicants are treated fairly, because any qualification for admission to the bar "`must have a rational connection with the applicant's fitness or capacity to practice law.'"
254 Neb. at 621, 578 N.W.2d at 43, quoting Bennett v. State Bar, 103 Nev. 519, 746 P.2d 143 (1987).
This court will not apply a strict application of rule 5C if in doing so, it would operate in such a manner as to deny admission to a qualified graduate of a foreign law school arbitrarily and for a reason unrelated to the essential purpose of the rule. In re Application of Gluckselig, 269 Neb. 995, 697 N.W.2d 686 (2005); In re Application of Collins-Bazant, 254 Neb. 614, 578 N.W.2d 38 (1998).
When a foreign-educated attorney seeks a waiver of the educational qualifications requirement, the burden is on the applicant to affirmatively show that his or her education, considered as a whole, was functionally equivalent to that of an ABA-approved law school, and the applicant will be responsible for the costs of providing such information. See, In re Application of Gluckselig, supra; In re Application of Collins-Bazant, supra. We now consider whether Brown has met this burden.
Our de novo review of the record before us indicates that Brown obtained a well-rounded legal education from Windsor, where he earned an LL.B. based on common-law principles. Windsor is not ABA-approved because it is a Canadian school, but its courses have been approved as part of a joint J.D.-LL.B. program with Detroit Mercy, which is an ABA-approved school.
In In re Appeal of Dundee, 249 Neb. 807, 811, 545 N.W.2d 756, 759 (1996), we recognized that by requiring a J.D. of bar applicants, we ensure that Nebraska lawyers *261 have taken basic, core legal courses deemed "`minimally necessary to be a properly-trained attorney.'" We listed as examples of such core legal courses the following: civil procedure, contracts, constitutional law, criminal law, evidence, family law, torts, professional responsibility, property, and trusts and estates. The record reveals that Brown successfully completed courses in all but two of those subjects: professional responsibility and trusts and estates. Brown's background is not completely devoid of those areas, however. The third phase of the bar admissions process in Ontario included instruction and an examination on professional responsibility and practice management, and Brown has taken and passed the Multistate Professional Responsibility Examination. Furthermore, Brown spent time in an estate planning practice group during his period of articles.
In addition to the core courses listed above, Brown successfully completed other law school staples such as administrative law, business associations, corporate law/secured transactions, debtor-creditor relations, international law, and legal writing and research. The education at Windsor also provided Brown with practical legal experience through his participation in the clinical law and advocacy program, community legal aid, and moot court. Furthermore, to gain admission to the Law Society of Upper Canada (i.e., Ontario's bar), Brown completed a mandatory 16 ½-month admissions process consisting of a 1-month skills program, a 12-month apprenticeship, and a 3 ½-month period of instruction and examinations in core legal subjects.
Brown has educated himself on U.S. law and has demonstrated his ability as an attorney. He familiarized himself with U.S. immigration law and practiced in that field for about 2 years in Canada. He then passed the California bar examination and was admitted to the California bar in 2000. He practiced law in California for 4 years, specializing in business immigration law. Brown has practiced law as a licensed attorney for a total of approximately 7 years (3 years in Canada and 4 years in California). He is in good standing with the Ontario and California bars.
In our de novo review, we determine that Brown's education as a whole is functionally equivalent to an education received at an ABA-approved law school. When Brown's education is combined with his work experience, efforts to become acquainted with U.S. law, passing of the California bar examination, and admission to the California bar, a waiver is appropriate.
VI. CONCLUSION
Based on a de novo review of the record, we conclude that Brown has met his burden of proving that his law school education was functionally equivalent to the education received at an ABA-approved law school. As a result, a waiver of the educational qualifications requirement is appropriate. Accordingly, we waive this requirement as it applies to Brown and will allow him to be admitted to the Nebraska State Bar Association. Having determined that a waiver is appropriate, we need not address Brown's remaining assignments of error.
APPLICATION GRANTED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264312/ | 879 F.Supp. 420 (1995)
UNITED STATES of America
v.
David FRIEDLAND, Defendant.
David FRIEDLAND, Petitioner,
v.
Douglas LANSING, Warden, United States Federal Correctional Institution Fort Dix, and United States Parole Commission, Respondents.
David FRIEDLAND, Petitioner,
v.
UNITED STATES of America, Respondent.
Crim. No. 85-332. Civ. Nos. 94-4463 (JEI), 94-4464 (JEI).
United States District Court, D. New Jersey.
March 2, 1995.
*421 *422 *423 Brian W. Shaughnessy, Shaugnessy, Borowski & Gagner, Washington, DC, Robert H. Jaffe, Jaffe & Associates, Springfield, NJ, for petitioner.
Jeremy D. Frey, Office of the U.S. Atty., Camden, NJ, Sharon Gervasoni, U.S. Parole Com'n, Chevy Chase, MD, for respondents.
IRENAS, District Judge:
David Friedland has moved for reconsideration of his sentence pursuant to Fed. R.Crim.P. Rule 35(b) and has also petitioned the court for a writ of Habeas Corpus pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 2241. Friedland argues that (i) the government failed to honor a commitment to move for a reduced sentence based on his substantial cooperation in pursuing other criminal investigations and (ii) the United States Parole Commission ("Commission") extended his incarceration beyond the date allowed by the parole guidelines contained in 28 C.F.R. § 2.20. Because the decision of the government not to move for a sentence reduction and the decision of the Commission to exceed the parole, guidelines were proper exercises of discretionary power the motion and petitions will be denied.
I. BACKGROUND
A. Friedland I
In 1980 David Friedland ("Friedland"), a New Jersey State Senator and an attorney for Teamsters Local 701 Pension Fund ("Pension Fund"), was convicted in the New Jersey District Court of receiving over $300,000 in "Kickbacks" related to the Pension Fund, filing false income tax statements, and obstruction of justice. He was sentenced to seven years in federal prison ("Friedland I").
Friedland never began service of his sentence. Instead, he entered into a cooperation agreement with the United States Attorney's Office for the District of New Jersey.
B. The Omni scheme
Between 1982 and 1985, while cooperating with the government, Friedland entered into another scheme to siphon off Pension Fund assets. According to, the presentence report Friedland conspired to defraud the Pension Fund by (i) investing twenty million of its money with Omni Funding Group, Inc., ("Omni") a Florida mortgage broker firm and (ii) arranging for kickbacks of profits made on that investment. Omni made non-insurable, high risk investments, notwithstanding that the contract between Omni and the Pension Fund prohibited such activity. In 1984 Friedland began liquidating Omni and moving his money into offshore accounts in the Bahamas held by the Corniche and Scorpio Corporations, both of which he controlled. Approximately $1,200,000 of Omni's profits were wired to these accounts on Friedland's behalf. Friedland also split approximately $400,000 in cash and $600,000 in gold coins with Joseph J. Higgins, a co-conspirator in the Omni scheme.
In September of 1985, when Friedland learned that he was going to be indicted for the Omni scheme, he travelled to the Bahamas where he faked his own death. He was thereafter indicted again and became a fugitive. For two and one-half years Friedland lived in Europe, Africa, and Asia. He was *424 captured in 1988 in the Maldive Islands, off the coast of India, and was returned to the United States.
C. Friedland II
Friedland's trial on the Omni related indictment started on September 28, 1988, and on the next day he pled guilty to conspiring to solicit and receive kickbacks under RICO, travelling with the intent to promote and facilitate bribery, endeavoring to influence a grand jury, and falsifying income tax returns (Friedland II). On December 2, 1988, Friedland was sentenced by Judge John F. Gerry, as a pre-Sentencing Guidelines offender, to serve an aggregate sentence of fifteen years, eleven months and six days to run concurrently with the sentence imposed in Friedland I. Judge Gerry also imposed a $25,000 fine. Friedland was incarcerated in the Federal Correctional Institute ("FCI") at Raybrook, New York. Subsequently, he was transferred to FCI Petersburg, Virginia and then to FCI Fort Dix, New Jersey, where he is presently an inmate.
On March 30, 1989, Friedland filed a timely motion for reduction of sentence under Fed.R.Crim.P. 35(b), claiming that the court had imposed an excessive sentence and offering additional evidence in mitigation of that sentence. Judge Gerry denied this motion on May 24, 1989.
D. The Program
While in prison Friedland developed a "program" to persuade other prisoners to supply him with information relating to illegal drug activities information which he hoped to exchange for a government motion to reduce his sentence. However, Michael Chertoff, then the United States Attorney for the District of New Jersey, did not consider Friedland's "brokering" of information to be an appropriate basis for reducing his sentence. Having been frustrated in his attempt to procure a reduction of sentence for this information, Friedland looked for other outlets.
In the summer of 1990, Friedland contacted Special Agent Longarzo of the Drug Enforcement Administration, told him about the program, and indicated he had information relating to the importation of narcotics. According to Friedland, Longarzo promised that the sentencing court and the Commission would be apprised of the nature and scope of any assistance provided and that he would recommend that Friedland be granted a reduction in sentence.
Thereafter, Friedland relayed information to Longarzo from a confidential informant referred to as "Hajib," which resulted in the interception of five kilograms of heroin at Kennedy Airport and the prosecution of one individual. Hajib later directly provided additional information which resulted in additional seizures and the arrest of six more people. Friedland also provided the name of a second individual, referred to as "Hajib II," whose information resulted in the arrest of three other people in 1991. At this point, according to Friedland, Longarzo again promised that the sentencing court and the Commission would be apprised of the nature and scope of any assistance provided and that he would recommend that Friedland be granted a reduction in sentence despite any opposition from the United States Attorney in New Jersey.
Longarzo then approached the office of the United States Attorney for the Eastern District of New York, and the matter was assigned to Assistant United States Attorney ("AUSA") Patricia Notopoulos. Friedland's attorney, Brian Shaughnessy, met with Notopoulos and told her that Friedland wanted to cooperate with the government. In return Friedland wanted the United States Attorney's Office to advise the sentencing court of his cooperation, but he was concerned that Chertoff would frustrate this effort. According to Shaughnessy, Notopoulos told him that, if Friedland continued to cooperate, her office would inform the court of Friedland's cooperation regardless of Chertoff's intervention. However, Friedland declined at this point to render further assistance to the authorities.
Notopoulos advised Chertoff in a letter dated March 7, 1993, that she personally had informed Friedland that (i) no promises were being made to him but (ii) she would relay the information he provided to the District of *425 New Jersey, where it would be decided whether he would receive any benefit from the program. On March 9, 1993, Chertoff wrote to Friedland's attorney advising him that the he would not recommend that Friedland's sentence be reduced. He considered the information brokered and did not wish to create a secondary market in the benefits of cooperation.
E. The Parole Hearing
On March 10, 1993, Friedland attended an initial parole hearing before a Hearing Examiner Panel of the Commission at FCI Petersburg. Friedland was represented by his attorney, Brian Shaughnessy, and Paul Kurtz, Executive Director of the National Correctional Counselling Center. The Deputy Chief of the Special Prosecution Division of the United States Attorney for the District of New Jersey, and a Special Agent from the Department of Labor also attended the meeting and opposed Friedland's request for parole. The members of the Hearing Examiner Panel referred Friedland's case to the Regional Commissioner for an original jurisdiction decision and provided an alternate recommendation that he serve 84 months with a special financial disclosure provision.
On April 19, 1993, the Commission issued a notice of action in which it ordered that Friedland continue his sentence to expiration with the special financial disclosure condition. The Commission stated in its decision:
Your offense behavior has been rated as category six severity because it involved fraud in excess of $1 million. Your salient factor score (SFS-81) is 8. You have been in federal confinement as a result of your behavior for a total of 63 months.... The Guidelines indicate a range of 40-52 months to be served before release for cases with good institutional adjustment and program achievement. After review of all relevant factors and information presented a decision above the guidelines appears warranted because: your behavior involved the following aggravating factors: The fraudulent behavior to have $20 million transferred from funds which you than [sic] used to make speculative high risk investments (ultimately causing a loss of $4.5 million), took place over an extended period of time (2 years) 1982-84. The offense was also committed while you pretended to cooperate with officials and while you were on appeal bond from another federal offense. In addition you attempted to evade taxes on money received unrelated to your criminal behavior and also attempted to influence testimony before a Grand Jury. You are a poorer risk than indicated by your salient factor score because you attempted to conceal your profits and escape from punishment by faking your death.
As required by law, you have also been scheduled for a statutory interim hearing during March, 1995.
Friedland appealed the Commission's action. On July 27, 1993, the Commission issued a Notice of Action on Appeal in which it affirmed the previous decision by stating that:
All relevant factors have been considered and no new or significant information is presented which would justify a more lenient decision.
F. Friedland's Subsequent Efforts
After the parole hearing Friedland went back to the United States Attorney's Office for the Eastern District of New York to solicit their assistance in reducing his sentence, and on July 18, 1994, Friedland met with Eastern District AUSAs Notopoulos and Valerie Caproni. At that meeting Firedland's attorneys were advised that: (a) they should be discussing the matter with the United States Attorney for the District of New Jersey, (b) the Eastern District of New York had no jurisdiction to file a motion for reduction in New Jersey, (c) they would not change the substance of Notopoulos's March 7, 1993 letter, but (d) they would, if requested, make available to New Jersey authorities the complete details (names of those arrested and convicted, sentences imposed and quantities of drugs seized) of all prosecutions that flowed from Friedland's assistance. However, the United States Attorney's Office in New Jersey indicated that it had no desire to even discuss the matter.
*426 On September 9, 1994, Friedland submitted three applications to the court. He moved to have his sentence reduced pursuant to Fed.R.Crim.P. 35(b) and filed two petitions for relief from his sentence, one brought pursuant to 28 U.S.C. § 2255 and the other pursuant to 28 U.S.C. § 2241. On December 22, 1994, Friedland also moved for an evidentiary hearing.
II. ANALYSIS
A. Fed.R.Crim.P. 35
The Sentencing Act of 1987 states that Rule 35(b) as it existed prior to November 1, 1987, ("old Rule 35") applies to all crimes committed before that date. Pub.L. 100-182, § 22, 101 Stat. 1266, 1271. However, courts have held that Rule 35 as it exists today ("new Rule 35") is also applicable to offenses committed prior to November 1, 1987. United States v. Hernandez, 34 F.3d 998, 999 n. 1 (11th Cir.1994); United States v. Weaver, 884 F.2d 549, 550 (11th Cir.1989).[1] Therefore, the court will discuss Friedland's motion under both old and new Rules 35.
1. New Rule 35(b)
Fed.R.Crim.P. 35(b) as it stands today reads, in pertinent part:
The court, on motion of the Government made within one year after the imposition of sentence, may reduce a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense.... The court may consider a Government motion to reduce a sentence made one year or more after imposition of the sentence where the defendant's substantial assistance involves information or evidence not known to the defendant until one year or more after the imposition of sentence.
New Rule 35(b) does not allow a court to reduce a defendant's sentence except on motion of the government. United States v. Francois, 889 F.2d 1341, 1345 (4th Cir.1989). In this case the government has made no such motion.[2]
Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), held that, even when a defendant has provided assistance to prosecutors, the government may refuse to move for a downward departure under 18 U.S.C. § 3553(e) or USSG § 5K1.1 unless the refusal is based on constitutionally suspect grounds such as race or religion. Id., 504 U.S. at 186, 112 S.Ct. at 1844.
It follows that a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would additional but generalized allegations of improper motive.
Id. Wade did suggest that if the plea agreement contained a promise to file a § 5K1.1 *427 motion, such promise might supersede the requirement that the government file a motion. Id., 504 U.S. at 184-85, 112 S.Ct. at 1843. Friedland alleges both that the government obligated itself to file a new Rule 35(b) motion and that the government had an unconstitutional motive for its refusal to file.
a. Contractual Obligation
Friedland argues that Agent Longarzo's promises contractually obligated the government to file a Rule 35(b) motion. The analogy between Friedland's alleged agreement and a plea agreement is inapposite. Promises made by prosecutors in the course of plea agreements are strictly scrutinized because a defendant's plea of guilty to a criminal charge involves the waiver of many constitutional rights. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The agreement alleged by Friedland involved no waiver of constitutional rights.
A defendant's waiver of constitutional rights is not the only factor which sets a plea apart from the agreement alleged by Friedland. Fed.R.Crim.P. 11 sets forth several very specific requirements for a valid plea. The court must address the defendant personally in open court. The court must inform the defendant of the rights that the defendant is waiving in making a guilty plea. The court must also inquire as to whether the plea is voluntary and whether the plea agreement is accurate.
Perhaps the most important distinction is that a plea agreement must be disclosed on the record. This record then becomes the embodiment of the deal reached between the defendant and the prosecution. See, e.g., United States v. Baylin, 696 F.2d 1030, 1037 n. 16 (3d Cir.1982); Martinez v. United States, 411 F.Supp. 1352 (D.N.J. 1976), aff'd mem, 547 F.2d 1162 (3d Cir. 1977). The purpose of Rule 11 is not only to detect and reject involuntary and unknowing guilty pleas but also to produce a suitable record of the plea and plea agreement. Martinez, 411 F.Supp. at 1357. This suitable record is notably absent in the case now before this court.
The Court in Wade referred only to contractual obligations which arose from a plea bargain. Wade, 504 U.S. at 184-85, 112 S.Ct. at 1843. Friedland has not been able to provide the court a single case which supports his contention that the principle in Wade is equally applicable to agreements outside the context of a plea bargain. Wade only refers to plea agreements, and the interaction between Friedland and the government was neither a plea agreement nor sufficiently analogous to a plea agreement to invoke Wade. Cf. United States v. Carter, 454 F.2d 426 (4th Cir.1972) (promises made by the United States Attorney for the District of Columbia in the course of plea bargaining binding on the United States Attorney for the Eastern District of Virginia); Palermo v. Warden, 545 F.2d 286 (2d Cir. 1976) (promises during plea negotiations that defendant will receive early parole on previous sentence may be enforceable); Hernandez, 34 F.3d at 1000 (appeal of the denial of Rule 35 motion allowed "when the district court's ruling implicates the plea agreement" and is necessary to "make the terms of the plea agreement fully enforceable").
Even if Agent Longarzo made the statements alleged and even if those statements were specific enough to consider as promises upon which Friedland could have reasonably relied, there is no evidence that Longarzo had authorization to make those promises. A DEA Agent is not part of the prosecution team, and any promise made by Longarzo would not bind the United States Attorney. LaPorta v. United States, 651 F.Supp. 884, 890 (E.D.Pa.1986).
Unauthorized plea bargain promises to a criminal defendant are not binding on the government absent exceptional circumstances. LaPorta, 651 F.Supp. at 890; see also United States v. Hudson, 609 F.2d 1326, 1328-28 (9th Cir.1979) (government was not bound by Secret Service Agent's unauthorized promise to defendant); United States v. Lombardozzi, 467 F.2d 160, 162 (2d Cir.1972) (government not bound by FBI agent's assurances). There is little indication that Longarzo's alleged promise was authorized by the government, and, in fact, Friedland *428 clearly knew that the United States Attorney for the District of New Jersey did not and would not approve such a deal.
b. Constitutionality
Friedland argues, based upon his reading of Wade, that the United States Attorney was acting selectively invidious in refusing to file a Rule 35(b) motion. Federal district courts do have the authority "to grant a remedy if they find that the refusal was based on an unconstitutional motive" such as race or religion. Wade, 504 U.S. at 185-86, 112 S.Ct. at 1844. However, a generalized allegation of improper motive is insufficient to raise a cognizable claim of a constitutional violation. Id. Even where there is an appropriate claim of improper motive, there are no grounds for an evidentiary hearing unless the defendant makes a substantial threshold showing of invidious intent. Id. Finally, an appropriate claim of improper motive can be rebutted if a prosecutor's refusal to move for a reduction is rationally related to a legitimate government objective. Id.
Here Friedland has not clearly stated how the prosecutor's failure to file a Rule 35(b) motion was unconstitutionally motivated. He has made no claim that he has been discriminated against because of his membership in a protected class or for his exercise of a constitutionally protected freedom. His claim appears to be that he was discriminated against "not because of his race or religion, but because he is in the class of individuals who have offended the United States Attorney." This is a generalized allegation of improper motive and not the constitutional violation required to allow relief under the principles enunciated in Wade.
Friedland might be entitled to relief if he could establish that the prosecutor's refusal to file a Rule 35(b) motion was not rationally related to a legitimate government objective. Wade, 504 U.S. at 186, 112 S.Ct. at 1844. Although the government has proffered various motives for failing to file a Rule 35(b) motion on Friedland's behalf,[3] it is defendant's burden, not the government's, to produce evidence of an illicit government motive which would "rise to the level warranting judicial enquiry." Id. Given Friedland's prior conduct in dealing with the government and the understandable government reluctance to assist in the creation of a marketplace in which prisoners seek to barter information for sentence reductions, the "Government's decision not to move may be based not on a failure to acknowledge or appreciate [Friedland's] help, but simply on its rational assessment of the cost and benefit that would flow from moving." Id.
c. Is 5K1.1 Invalid?
In discussing relief under new Rule 35, Friedland spends considerable time arguing that USSG § 5K1.1 is invalid because the Sentencing Commission was authorized to promulgate Guidelines, and no Guideline relates to § 5K1.1. Friedland then reasons that because § 5K1.1 is invalid, the government motion requirement of new Rule 35 is not binding and the court may reduce his sentence without such a motion.
However, the requirement of a government motion under new Rule 35 does not arise from § 5K1.1, but from its own terms which condition relief "on motion of the Government." Thus, even if Friedland is correct in asserting that § 5K1.1 is invalid, a palpably silly argument, that determination would not effect the requirement of a government motion under new Rule 35.
2. Old Rule 35
Friedland has asked the court to consider his motion under old Rule 35 which provided, in pertinent part:
A motion to reduce sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the *429 judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review or having the effect of upholding a judgment of conviction or probation revocation....
Under old Rule 35 the court had jurisdiction to reduce a sentence only if the defendant filed a motion for reduction of sentence within 120 days of the court's imposition of a judgment of conviction. The 120 day limit is a jurisdictional and may not be extended. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979); United States v. Dansker, 581 F.2d 69 (3d Cir.1978). Friedland attempts to overcome this jurisdictional problem by styling his present motion as one for reconsideration of his earlier, timely Rule 35 motion which he filed on March 30, 1989.
A court cannot extend the 120 day window in old Rule 35 with a motion for reconsideration if that motion raises new grounds for relief. See United States v. Inendino, 655 F.2d 108 (7th Cir.1981) (District court does not have jurisdiction to consider new evidence presented in defendant's untimely motion to reconsider district court's denial of his 35(b) motion); United States v. Hetrick, 644 F.2d 752 (9th Cir.1980) (Timely filing of motion to reduce sentence did not give district court jurisdiction to entertain subsequent, untimely motion to reduce sentence, and this defect was not cured by styling the second motion as a "motion for reconsideration"); United States v. Coonan, 750 F.Supp. 652, 657 (S.D.N.Y.1990) (A district court only has jurisdiction where the defendant is not seeking to evade a jurisdictional defect by styling a subsequent Rule 35(b) motion for reduction of sentence as a motion for reconsideration).
Friedland's first motion for reduction of sentence under old Rule 35(b), filed on March 30, 1989, was based primarily on claims that the court had imposed an excessive sentence. Although Friedland offered additional mitigation evidence, the court denied the motion on May 24, 1989. His program, the basis of his present "reconsideration" motion, did not exist at the time his initial motion was filed, and the court does not have jurisdiction to revisit Judge Gerry's 1989 decision denying relief.
B. 28 U.S.C. § 2255
28 U.S.C. § 2255 allows a prisoner to file a habeas corpus petition with the sentencing court alleging that his sentence was imposed in violation of the Constitution. If the court finds for the prisoner, it may, inter alia, resentence the prisoner in accordance with the Constitution or it may set the conviction aside. 28 U.S.C. § 2255.
Friedland argues that (i) the United States Attorney has been "selectively invidious" in failing to file a Rule 35(b) motion on his behalf and (ii) the government's failure to file a Rule 35(b) motion breached his contract with the government. As relief for these "injustices" Friedland asks the court to vacate his sentence and release him from prison. These claims are substantively identical to Friedland's motion pursuant to new Rule 35(b), discussed supra, and are therefore dismissed for the reasons stated above.
C. 28 U.S.C. § 2241
Friedland has also brought a habeas petition against the Commission pursuant to 28 U.S.C. § 2241 which is a proper vehicle for a prisoner in federal custody to challenge a parole decision. United States v. Ferri, 686 F.2d 147, 158 (3d Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983). Commission decisions will be upheld if there is a rational basis in the record to support the Commission's findings. Bridge v. United States Parole Comm'n, 981 F.2d 97, 100 (3d Cir.1992); Campbell v. United States Parole Comm'n, 704 F.2d 106, 110 (3d Cir.1983). The district court must be satisfied that the Commission has followed criteria that are appropriate, rational, and consistent with its statute and that its decision is neither arbitrary nor capricious nor based on impermissible considerations. Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.1976).
1. Offense severity as level six
Friedland argues that the Commission improperly applied the Parole Guidelines when *430 it rated his offense severity as level six rather than five. First, he claims that because he returned all assets wrongfully diverted from the Pension Fund the victim of his crime did not suffer a loss in excess of $1,000,000, the threshold for level six. Second, he asserts that the Commission improperly considered unadjudicated conduct in making its determination.
The Commission regulation in effect on March 10, 1993, the date of Friedland's hearing, provided:
The "value of the property" is determined by estimating the actual or potential replacement cost to the victim. The "actual replacement cost" is the value or money permanently lost to the victim through theft/forgery/fraud. The "potential replacement cost" refers to the total loss the offender specifically intended to cause by theft/forgery/fraud notwithstanding subsequent recovery by the victim. The highest of these three values is to be used in rating the offense on the guidelines.
28 C.F.R. § 2.20, Ch. 13, Sub. B(20) (1993). This regulation sets forth the common sense notion that the size of a theft, forgery or fraud is not diminished because the felon thereafter satisfies his legal obligation to restore the purloined property to its rightful owner.
The Commission properly considered the total which Friedland fraudulently siphoned from the Pension Fund. Not only did Friedland admit at his initial hearing that he had arranged for an improper transfer of $20,000,000 to Omni, but the presentence report also indicates that approximately $1,200,000 of Omni's profits were wired to the Bahamas on Friedland's behalf and another $1,000,000 in cash and gold coins were split by Friedland and another conspirator. There is a rational, if not overwhelming, basis in the record to support the Commission's rating of his offense as a fraud involving more than $1,000,000.
Friedland also contends that it was inappropriate for the Commission to consider information in the presentence report which referred to unadjudicated conduct. The Commission may rely on the presentence report in making its parole determination, including information with respect to related counts in an indictment on which the defendant has not been found guilty. United States ex. rel. Goldberg v. Warden, 622 F.2d 60, 64 (3d Cir.1980); Campbell, 704 F.2d at 110. Friedland does not make clear in his briefs or affidavits what uncharged conduct was relied upon by the Commission. He was never separately indicted for his faked death and flight to the Maldive Islands, but this is precisely the type of conduct the Commission might and should consider in reaching a determination.
Relying on the Eighth Circuit's dictum in Wixom v. United States, 585 F.2d 920 (8th Cir.1978), Friedland argues that the Commission may not consider information in the presentence report to which defense counsel has objected. However, the Eighth Circuit has declined to follow its own dictum and has held that the Commission may rely on disputed portions of the presentence report, even if the sentencing judge chose to disregard that disputed information. Blue v. Lacy, 857 F.2d 479, 481 (8th Cir.1988). See also Ochoa v. United States, 819 F.2d 366, 372 (2d Cir.1987); Kramer v. Jenkins, 803 F.2d 896, 900, clarified on reh'g, 806 F.2d 140 (7th Cir.1986).
Friedland can point to very little in the presentence report which is factually inaccurate. He challenges the inclusion of a claim from the United States Attorney that "he will say anything to minimize his punishment and speed the day when he emerges from prison so he can rejoin his money overseas." Presentence Report p. 5 (December 2, 1988). He likewise objects to the United States attorney including a raft of newspaper clippings in its submission to the Commission. Suffice it to say that the record does not support the notion that either of these items influenced a decision based on a wealth of uncontested factual information.
2. Exceeding the guidelines
Friedland contends that the Commission improperly denied him parole because it exceeded the parole guidelines without good cause. The statute provides that, "[t]he Commission may grant or deny release on parole notwithstanding the guideline ... if it *431 determines there is good cause for so doing...." 18 U.S.C. 4206(c).
The Commission's listed five factors to support its decision to exceed the guidelines: (1) the fraudulent activity occurred over an extended period of time; (2) the offense was committed while Friedland was pretending to cooperate with government officials; (3) Friedland was released on bail from another federal offense at the time he committed the RICO offenses; (4) Friedland was involved in additional criminal behavior in attempting to evade taxes and attempting to influence testimony before a grand jury proceeding; and (5) Friedland attempted to conceal his profits and faked his own death to escape punishment. The Commission concluded that these factors render him a poorer risk then his "very good" salient factor score indicates.
Friedland contends that the Commission may not consider that his offenses took place over an extended period of time because a RICO offense necessarily includes a pattern of racketeering activity occurring over time and is an inherent part of the offense itself. See Harris v. Martin, 792 F.2d 52, 55 (3d Cir.1986) (improper to use the same factor in scoring prisoner pursuant to parole guidelines and as aggravating factor justifying decision above guidelines).
This argument is not persuasive. The level six severity rating was based on the size of the fraud, not its duration. Although RICO does require a pattern of illegal activity, the extensiveness of the conspiracy and the period over which it extends can vary widely from case to case. Both the scope and duration of a conspiracy in particular instances are proper considerations for the Commission in deciding whether to exceed the guidelines. See, e.g., Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir.1987); Pilotto v. United States Parole Comm'n, 857 F.2d 474, 476 (8th Cir.1988).
Friedland takes umbrage at the Commission's finding that he was only "pretending to cooperate" when he committed the offenses which were the subject of Friedland II. Friedland asserts that his cooperation was genuine and lists examples of his help to the government during this period. However, given his felonious behavior while rendering this assistance, there is more than a rational basis for the Commission's determination that his cooperation was only a pretense.
Friedland argues that the Commission improperly considered that he was out on bail when he committed the crimes underlying Friedland II. The defendant has not been deterred from criminal conduct by contact with the criminal justice system, and the Commission is not double counting when it relies on the defendant's poor behavior while on bail in fixing a release date beyond the guidelines. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987); Wiggins v. Nelson, 510 F.Supp. 666, 668 (D.Conn.1981).
Friedland argues that the Commission erred in considering his convictions for tax evasion and attempting to influence testimony before the grand jury in their decision to exceed the guidelines, because these offenses were used to determine his offense severity level. Friedland simply ignores that the level six severity rating was based on his fraudulent diversions from the Pension Fund in excess of $1,000,000. There was no double counting when the Commission also weighed his other offenses.
Friedland questions whether there is a rational basis in the record for the Commission's conclusion that he attempted to conceal the profits from his illegal activities. However, the presentence report discloses that gold coins and cash, as well as a $1.2 million wire transfer to accounts controlled by Friedland in the Bahamas, were utilized to conceal the loot.
Finally, Friedland contends that it was impermissible for the Commission to consider his attempt to escape punishment by faking his death because that factor was used to lower his offender characteristic from "very good" to "good" and thus increase his guideline range from 40-52 months to 52-64 months. 28 C.F.R. § 2.20 (table captioned "Guidelines for Decision Making") and *432 § 2.36. However, the Commission never in fact made that adjustment.[4]
3. Use of Sentencing Guidelines
Friedland argues that the Commission improperly failed to calculate the applicable Sentencing Guidelines in this case and then apply the lesser of the Sentencing Guidelines or the Parole Guidelines.[5] The only support which Friedland cites as authority for this proposition is a footnote in the legislative history of the Sentencing Reform Act. Footnote 430 of the Senate Reports states, "[t]he Committee intends that in the final setting of release dates under this provision, the Parole Commissioner gives the prisoner the benefit of the applicable new sentencing guideline if it is lower than the minimum parole guideline." S.Rep. No. 98-225 98th Cong., 189 n. 430, reprinted in 1984 U.S.C.C.A.N. 3182, 3372. However, this footnote was not included in the final version of the Sentencing Reform Act.
The footnote refers to § 235(b)(3) of the Sentencing Reform Act of 1984 which contains no language with regard to the Sentencing Guidelines.[6] The statute, as it was enacted, cannot reasonably be interpreted as Friedland suggests. Legislative history is meant to be instructive as to the interpretation of enacted legislation and not to create extra statutory law. Church of Scientology v. Internal Revenue Service, 792 F.2d 153, 164 n. 4 (D.C.Cir.1986). A particular iteration of a complex piece of legislation, which iteration is superseded by later versions, is not somehow incorporated in the legislation which is ultimately enacted.
4. Credit for superior program achievement
Friedland asserts that the Commission abused its discretion by failing to award him credit for superior program achievement. The relevant regulations provide, in pertinent parts:
Prisoners who demonstrate superior program achievement (in addition to a good conduct record) may be considered for a limited advancement of the presumptive date previously set according to the schedule below.... Upon a finding of superior program achievement, a previously set presumptive date may be advanced.
28 C.F.R. § 2.60.
The Commission may consider as a factor in the parole release decisionmaking a prisoner's assistance to law enforcement authorities in the prosecution of other offenders.... If the assistance meets the above criteria, the commission may consider providing a reduction of up to one year from the presumptive parole date that the Commission would have been warranted had such assistance not occurred.
28 C.F.R. § 2.63.
Because § 2.60 uses permissive rather than mandatory language, courts have held that the Commission need not award any advancement even if the criteria of the regulation are met. Otsuki v. United States Parole Comm'n, 777 F.2d 585 (10th Cir.1985); Kele v. Carlson, 877 F.2d 775 (9th Cir.1989); Briggs v. United States Parole Comm'n, 611 F.Supp. 306 (N.D.Ill.1984) aff'd sub. nom., Briggs v. Luther, 753 F.2d 1077 (7th Cir. 1985). The language of § 2.63, like that of § 2.60, is permissive rather the mandatory, and therefore, we believe the same reasoning applies. The Commission did consider Friedland's superior program achievement as *433 well as his cooperation.[7] However, the Commission concluded that these factors were outweighed by the other factors present in this case.
5. Commission's original jurisdiction
Friedland's parole hearing was determined to be within the original jurisdiction of the Regional Parole Commissioners. Friedland argues that this determination was in error and has prejudiced his parole application and that, in any event, he deserved notice of this designation and an opportunity to challenge it.
The criteria for designating a case as original jurisdiction is set out in 28 C.F.R. § 2.17. The Commission in this case determined that Friedland was appropriate for original jurisdiction because of "the publicity generated in the New York/New Jersey area." This is an appropriate basis for original jurisdiction under 28 C.F.R. § 2.17(b)(3) which covers prisoners who have received national or unusual attention. Further, as the U.S. Attorney points out, original jurisdiction would also have been proper because 28 C.F.R. § 2.17(b)(2) covers "[p]risoners whose offense behavior: (i) involved an unusual degree of sophistication or planning, or (ii) was part of a large scale criminal conspiracy or a continuing criminal enterprise." Therefore, the Commission was properly following its own regulations in designating this case for original jurisdiction.
Friedland has not established that he was prejudiced by the determination of original jurisdiction. In the absence of a showing of prejudice he is not entitled to habeas corpus relief even had there been an error. D'Amato v. United States Parole Comm'n, 837 F.2d 72, 77 (2d Cir.1988); Hanahan v. Luther, 693 F.2d 629 (7th Cir.1982); White v. United States Parole Comm'n, 856 F.2d 59, 61 (8th Cir.1988); Sacasas v. Rison, 755 F.2d 1533, 1535 (11th Cir.1985).
6. Parole Commission extension
When Friedland was sentenced on December 2, 1988, Judge Gerry completed the "Report on Committed Offender" which asked "Referring to the probation officer's estimate of the parole guidelines given above [40-52 months], [what] do you believe the time served by this defendant should be?" Judge Gerry checked the box which indicated "Within the Guidelines." In response to another query concerning the relative culpability of the offender in a multi-defendant case, the court noted "most culpable."
Friedland argues that both the court and the parties believed that the Commission was to be abolished in 1992, giving him an enforceable expectation that he would be released after the statutorily mandated service of one-third of his fifteen year sentence,[8] a term in excess of Judge Gerry's recommendation that he serve only 40-52 months. This argument flies in the face of binding precedent.
In United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) the sentencing judge had "anticipated assuming an appropriate institutional adjustment and good behavior while confined that [Addonizio] would be confined for a period of approximately three and one half to four years of the ten year sentence." Id. at 183, 99 S.Ct. at 2239. Although this sentencing expectation was frustrated by the Commission's adoption of new policies and procedures, the Court held that "subsequent actions taken by the parole commission whether or not such actions accord with a trial judge's expectations at the time of sentencing do not retroactively affect the validity of the judgment itself." Id. at 190, 99 S.Ct. at 2243. Therefore, even Judge Gerry's recommendation that Friedland be paroled after service of his minimum sentence is not enough to support Friedland's habeas petition, unless, as Friedland argues, Addonizio is not applicable.
*434 Under the Crime Control Act of 1984 the Commission was to be abolished in 1992, five years after the Act's effective date. Pub.L. 98-473, §§ 218(a)(5), 235(b)(1), 98 Stat. 2027, 2032.[9] The life of the Commission was thereafter extended for an additional five years to 1997. Pub.L. 101-650, Title III, § 316, 104 Stat. 5115. Before its demise the Commission was to set release dates for all prisoners under its jurisdiction. Pub.L. 98-473, § 235(b)(3), 98 Stat. 2032. The conditions of confinement set by the Commission were to remain in force unless changed by a district court. Id. § 235(b)(4). Therefore, Friedland argues, Judge Gerry's recommendation as to the period of incarceration is significant because under the law then in effect it was anticipated that the district court would become the de facto parole commission when the Commission was abolished.
While this argument is creative, it is not persuasive. Under the Crime Control Act of 1984 the terms and conditions of confinement were to be set by the Commission, not the district court. Id. Although the district court was to be given authority over prisoners after the Commission's abolition, that authority was supplemental to the terms and conditions set by the Commission. It is possible that, if the life of the Commission had not been extended, Judge Gerry might have changed the release date set by the Commission.[10] However, this is far too tenuous a hypothetical to distinguish Addonizio.
D. Evidentiary Hearing
On December 22, 1994, Friedland moved for an evidentiary hearing on these motions because there are several disputed issues of material fact. When a prisoner files a motion pursuant to 28 U.S.C. § 2255, the district court must hold an evidentiary hearing unless the "motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief." Id. See also United States v. Nahodil, 36 F.3d 323, 325 (3d Cir.1994); United States v. Day, 969 F.2d 39, 41-42 (3d Cir.1992); Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989).
Whether to order a hearing is within the sound discretion of the trial court. Day, 969 F.2d at 41-42; Forte, 865 F.2d at 62. In exercising that discretion the court must accept the truth of the movant's factual allegations unless the record shows them to be clearly frivolous. Day, 969 F.2d at 41-42; Forte, 865 F.2d at 62.[11] Is not necessary to hold an evidentiary hearing on this matter because it is clear from the record that Friedland is not entitled to relief under Rule 35, § 2255 or § 2241, even if we accept Friedland's version of the facts.
III. CONCLUSION
For the reasons set forth above, Friedland's motion for reconsideration of sentence pursuant to Fed.R.Crim.P. 35(b) and his petitions for Habeas Corpus relief pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 2241 are denied. Finally, Friedland's motion for an evidentiary hearing is also denied. An appropriate order will issue on even date herewith.
NOTES
[1] Although the court in Weaver referred to an interim version of rule 35 there is nothing in new Rule 35 which would suggest that it does not apply to prisoners who were incarcerated before the effective date of the rule.
[2] USSG § 5K1.1, 18 U.S.C. § 3553(e), and new Rule 35(b) all refer to substantial assistance given by a defendant, which raises the issue of whether third party information or brokered information meets this requirement. Judge T.S. Ellis, III recently discussed this issue and held that
[W]hen (1) the defendant plays some role in instigating, requesting, providing, or directing the assistance; (2) the government would not have received the assistance but for the defendant's participation; (3) the assistance is rendered gratuitously; and (4) the court finds that no other circumstances weigh against rewarding the assistance
surrogate assistance would justify the court in granting a government motion under Rule 35(b) or USSG § 5K1.1. United States v. Doe, 870 F.Supp. 702, 708 (E.D.Va.1994). However, Judge Ellis made it clear that in his view such surrogate assistance would only infrequently be the basis of a Rule 35(b) or § 5K1.1 motion and would be confined to cases "where a close friend or relative works with and on behalf of the defendant in providing the assistance." Id. He was also concerned that a wealthy defendant would purchase information with the result that "a wealthy person [could] purchase a lighter sentence than of an indigent." Id. at 708. Thus, he held "that another boundary confining the use of surrogate substantial assistance is that the assistance must be provided gratuitously and from a non-remunerative desire to help the defendant." Id. at 708. For purposes of this opinion we assume, but do not hold, that the type of information provided by Friedland was sufficient to support a motion under new Rule 35(b) and was not purchased by Friedland from other sources, a practice about which we share the view of Judge Ellis.
[3] The government also contends that it did not make a Rule 35(b) motion because (i) it believed that the law did not permit such a motion; (ii) Friedland had previously abused a cooperating relationship with the government; and (iii) Friedland's assistance was provided with the advance knowledge that the government believed that it was not sufficiently "substantial" to justify a Rule 35(b) motion.
[4] Friedland relied on documents not adopted by the Commission in making this assertion.
[5] In this case the Sentencing Guidelines lead to a greater sentence than the Parole Guidelines. It was only because of the Commissions departure from the Parole Guidelines that the Sentencing Guidelines lead to a shorter sentence.
[6] That section states:
The United States Parole Commission shall set a release date, for an individual who will be in its jurisdiction on the day before the expiration of ten years after the effective date of this act, pursuant to section 4206 of title 18 United States Code. A release set pursuant to this paragraph shall be set early enough to permit consideration of an appeal of the release date, in accordance with parole commission procedures, before the expiration of ten years following the effective date of this act.
Sentencing Reform Act of 1984 § 235(b)(3), Pub L. 98-473, 98 Stat.1987, as amended by the Sentencing Act of 1987, § 2(b)(2) Pub.L. 100-182 and the Judicial Improvements Act of 1990, § 316 Pub.L. 101-650, 104 Stat. 5089, 5115 (December 1, 1990)).
[7] It is noteworthy that the regulations state that the Commission "may consider" prisoner's superior program achievement, therefore, the act of consideration itself is optional.
[8] 18 U.S.C. § 4205(a) (repealed Pub.L. 98-473, Title II, § 218(a)(5), Oct. 12, 1984, 98 Stat. 2027).
[9] This date was subsequently extended to 1997. Pub.L. 101-650, Title III, § 316, Dec. 1, 1990, 104 Stat. 5115.
[10] Thankfully we need not determine whether the district court's authority to change a release date fixed by the Commission before its demise was limited to changes based on events occurring thereafter, such as an institutional infraction.
[11] The standard for section 2241 claims is essentially the same. See, Tijerina v. Thornburgh, 884 F.2d 861 (5th Cir.1989) (where prisoner raises only issues of law or questions regarding legal implications of undisputed facts in section 2241 proceeding, a hearing is unnecessary); Wright v. Dickson, 336 F.2d 878 (9th Cir.1964), cert. denied 386 U.S. 1012, 87 S.Ct. 1360, 18 L.Ed.2d 444 (1967) (There is no need for a hearing where it appears from undisputed facts that petitioner is not entitled to discharge). | 01-03-2023 | 10-30-2013 |
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