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https://www.courtlistener.com/api/rest/v3/opinions/1345675/ | 330 S.E.2d 862 (1985)
BROWNING-FERRIS INDUSTRIES OF SOUTH ATLANTIC, INC.
v.
PUBLIC SERVICE COMMISSION and Lawco Disposal Co., Inc.
No. 16290.
Supreme Court of Appeals of West Virginia.
Submitted January 29, 1985.
Decided June 3, 1985.
*863 Homer W. Hanna, Jr., Hanna & Elliott, Charleston, for petitioner.
Mark G. Thessin, Staff Atty., PSC, Charleston, for PSC.
Christopher Chiles, Dodrill & Chiles, Huntington, for respondent.
PER CURIAM:
The appellant, Browning-Ferris Industries of South Atlantic, Inc. (BFI), appeals from a final order of the Public Service Commission (PSC), which affirmed an earlier decision of the Hearing Examiner to grant Lawco Disposal Co., Inc., a Ohio corporation, a certificate of convenience and necessity to operate as a common carrier in the transportation of waste materials in Cabell and Wayne County. BFI assigns several errors that it maintains warrant reversal of the PSC's issuance of a certificate of convenience and necessity. Primarily, it contends that the new service proposed by Lawco is neither convenient nor necessary. After careful examination of the evidence presented below, we agree, and therefore reverse the decision of the PSC.
On September 27, 1982, Lawco filed an application with the PSC for a certificate of convenience and necessity. At a hearing held on December 21, 1982, it presented a number of witnesses, including its president and secretary-treasurer, and several entrepreneurs from the Huntington area.
Lawco's president, Sara Odekirk, testified as to the general operations of the corporation and as to her business acumen. Lawco's secretary-treasurer, R.M. Odekirk, testified further on behalf of the corporation. Kevin Thompson, an employee of Abilene Corporation, testified generally concerning the cost versus quality of waste disposal service in the Huntington area. The testimony of William Rood, a former employee of Wendy's International, indicated his dissatisfaction with available service in the Huntington area during his former employment. Finally, Michael Whisman, owner of the Wright Christian Don Co., Inc., complained of high costs and indicated that his company was currently hauling away their refuse with their own equipment, and would continue to do so in the future.
BFI, on the other hand, presented a large number of witnesses, all of whom testified that the service furnished by existing transportation facilities was efficient and adequate; that all reasonable needs in the area were being met by the current service; and that Lawco's entry into the field would adversely affect the public. The final witness at the hearing was the Director of the Motor Carrier Division of the Public Service Commission, Franklin Crabtree. Crabtree stated that certain matters relating to Lawco should be made part of the record in the present case. Specifically, he submitted a memorandum from Vernon Ruby, Inspector, dated December 7, 1982, that had been directed to Crabtree, and a copy of a cease and desist order from the PSC to Lawco. Ruby's memorandum stated:
My investigation of Lawco Disposal Co., Inc., shows that they were directed by Motor Carrier Division employees to cease and desist illegal operations in Wayne, and Cabell, Counties in 1976, 1972, and 1978. All of these directives were ignored. In May of 1979 the commission issued M.C. Order No. 19688,[*]*864 ordering Lawco Disposal Company to cease and desist operating anywhere in the state without first obtaining a certificate or contract carrier permit. According to Mr. Hatfield, who was the officer in charge of this case, Lawco employees and officers attempted to avoid being served with this order, and after the order was served, the Company persisted in their operation.
Lawco Disposal Company, Inc., has shown a total disregard for the laws of the State of West Virginia and an utter contempt for the commission, its orders, its directives and its employees. I feel that granting of this authority would be detrimental to the well-being of the citizens of the State, and to the other companies that operate legally in this area.
Subsequently, on May 6, 1983, the Hearing Examiner held that Lawco had established the requisite convenience and necessity to the public and that the services rendered by existing companies was not reasonable, sufficient and adequate. The Hearing Examiner also determined that Lawco had the ability and experience, and was a fit and proper company to provide the service requested in the application. Therefore, a certificate was issued to Lawco, designated as P.S.C. M.C. Certificate No. F-6344. Exceptions to this decision were received from the various protestants and the decision was affirmed by the PSC, by order dated February 3, 1984. A petition for review was filed by BFI shortly thereafter, assigning several errors.
With respect to the appropriate standard of review in these types of proceedings, this Court has held that "In a proceeding for a certificate to operate as a common carrier an order of the Public Service Commission will not be disturbed on appeal unless its findings are contrary to the evidence, are without evidence to support them, are arbitrary, or result from a misapplication of legal principles." Weirton Ice & Coal Supply Co. v. Public Service Commission, 161 W.Va. 141, 240 S.E.2d 686 (1977). After a close examination of the evidence adduced at the hearing on this matter in December, 1982, we hold that the decision made by the PSC is patently contrary to the weight of the evidence presented. The overwhelming evidence presented indicated, contrary to the findings and conclusions of the Hearing Examiner, that the existing services were more than adequate and that Lawco had a chequered history of disregard and contempt for statutory and regulatory limitations upon their operations.
The applicant, Lawco, through its president, Mrs. Odekirk, failed to testify as to the necessity of additional service in the area of application, nor did she offer any evidence indicating an inadequacy in the existing service. The secretary-treasurer of Lawco, R.M. Odekirk, noted that he had conducted an informal survey of potential customers in the West Virginia area, and from the results concluded that there was a need for additional service. However scientific the survey may have been, we have neither received nor does the transcript contain, any information as to the specific number of persons contacted, or what their individual responses were. Also, Mrs. Odekirk testified under earlier cross-examination that a good percentage of the letters used in determining the results of this survey were over two years old, in spite of the fact that Mr. Odekirk indicated that the survey was the major reason the company was seeking a certificate. Mr. Thompson, who operates two McDonald's restaurants in Cabell County, stated that he would like to see more competition because BFI's prices were, in his opinion, too high. Another public witness who spoke on behalf of Lawco, Mr. Whisman, testified that after one contact with BFI to inquire about their service, he decided that his company would do their own hauling with their own equipment, and that it would continue to do so.
In stark contrast, the appellant presented a number of witnesses, both customers and competitors, all of whom testified as to the adequacy of existing service and the resultant absence of public need for additional service. In fact, a BFI employee, Charles McLaurin, testified that BFI had suffered a *865 decline in customers due to the exodus of business from the area. Moreover, we question the propriety of granting operational authority to a company which has so clearly demonstrated itself to be disrespectful of the rules and regulations of this State. It is our opinion that previous acts, attested to by several witnesses including the Director of the Motor Carrier Division of the PSC, indicates not only a lack of good faith, but also an unwillingness to obey the laws of West Virginia.
For the foregoing reasons, we hold that the certificate was improperly granted, and reverse the decision of the PSC.
Reversed.
NOTES
[*] M.C. Order No. 19688 pertained to an advertisement published by Lawco in the Huntington Herald Dispatch which solicited customers. Sara Odekirk, President of Lawco, testified that the advertisement was published only to reach prospective customers in the states of Ohio and Kentucky and was not intended to solicit customers in West Virginia. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346170/ | 288 P.2d 684 (1955)
60 N.M. 143
Harry B. DUNHAM and American Associated Insurance Companies, Plaintiffs-Appellants,
v.
Billy WALKER, an individual, d/b/a Billy Walker Trucking Company, Defendant-Appellee.
No. 5952.
Supreme Court of New Mexico.
October 4, 1955.
L. George Schubert, Hobbs, for appellants.
Neal & Girand, Hobbs, for appellee.
SADLER, Justice.
The plaintiff below and his co-plaintiff, the employer's carrier of workmen's compensation insurance, appellants here, seek a recovery of damages from defendant, *685 Billy Walker, doing business as Billy Walker Trucking Company, the former by way of compensation for injuries claimed to have been negligently inflicted on him in an accident arising out of and in the course of his employment; the latter by way of reimbursement to it for workmen's compensation paid plaintiff by reason of his said injuries. The trial court having directed the jury to return a verdict for defendant when the plaintiff rested, judgment pursuant to such verdict was rendered in his favor. This appeal has followed.
At the time of his injury, on March 1, 1953, the plaintiff was an employee of the Howard P. Holmes Drilling Company, operating in Lea County, New Mexico. While on the premises of his employer, an employee of defendant was also present, and at the moment using one of its trucks with a winch attachment in unloading heavy sills from a float. The front end of defendant's truck suddenly started to ascend from the ground while the sills, consisting of rig lumber, were being unloaded from the float. The plaintiff, thinking he could hold the truck down by the weight of his body, stepped on the truck's bumper. However, the front of the truck began such a rapid ascent that plaintiff, who might earlier have stepped from his perch without risk of injury, became fearful he might be injured by a jump and remained on the bumper, intending when it became stationary, to crawl down the side of the truck. Standing on the bumper in the position he was, the plaintiff was able to observe the driver of the truck through its windshield. He testified:
"Q. Relate to the jury the circumstances involving your injury; about the accident, how it happened. A. About the accident. We were unloading a float load of rig lumber at Howard Holmes Yard, and it was to gin trucks backed up to this float load of rig lumber, they picked it up off of the float and the float pulled out from under this load which was pulled up pretty high on the gin pole, pretty high up on the float, and this happened while these trucks were being readied to back up about 15, 20 feet to unload this load of lumber. The smaller of the two trucks was light on the front end, and I stepped onto the bumper. My eight there would let this truck come back down to where the driver would have a reasonable traction there to back up so he could handle his truck. And, after I stepped up on the truck, and was started to back up, it started to rear up due to this load on the gin pole. And, as it started to rear up, and I noticed it was rearing up, I was possibly eight to ten feet from the ground. I thought it would be better to hold onto the grilling or guard of it and stay where I was. And, when the truck came to a stop I'd say at approximately a 45-degree angle that's what I figured due to the load, the height of the load that they were picking up; and the gin poles, the slope they had, I figured it would stop at about that angle. I thought it would be better to stay there until the truck stopped and then climb down the side of the truck and get off, and the truck driver could then do whatever he saw fit and let the truck back down. And, as the truck got to the top, I was looking down through the windshield, of course, at the driver, and I could see him working at his power take-off lever, and the load, the truck, just as it got to the top, stopped for just an instant I would say. I could hear the motor labor and at that time the winch line broke and the next thing that I knew I was in the hospital."
Further details of the accident are to be found in the recitals of the plaintiff, testifying in his own behalf on cross-examination, as follows:
"By Mr. Neal:
"Q. Mr. Dunham, on the 1st of March of 1953, when you received this injury, you were engaged in pushing tools for Howard Holmes, weren't you? A. That's right.
*686 "Q. You were at the Howard Holmes' yard at Hobbs? A. Yes, sir.
"Q. Now, at that time, Mr. Ross Solomon was the assistant drilling superintendent for the Howard Holmes Drilling Company, was he not? A. Yes, sir.
"Q. Shortly before the incident which you related to the jury occurred, some Billy Walker trucks had been in the yard unloading, had they not? A. They had unloaded some loads, yes, sir.
"Q. In other words, there had been some Billy Walker trucks in the yard that had unloaded some loads off of those trucks, the Walker trucks? A. Yes, sir.
"Q. Now, at the time that this occurred, all of the Walker trucks except the one that was involved in this lifting you have described had left the yard, hadn't they? A. No, sir, I don't think so.
"Q. You are not sure about that, are you? A. I am not sure, no, sir.
"Q. The only Walker truck involved in this accident was the one being driven by a man by the name of Gray, was it not? A. I believe that is the boy's name. I'm not acquainted with him.
"Q. Now, these sills that were being unloaded were very heavy? A. That is right.
"Q. They were oil soaked and water soaked? A. They were oil soaked and water soaked.
"Q. Now, those sills were being unloaded from a Howard Holmes truck, were they not? A. I'm not sure.
"Q. Now, aren't you positive that those sills were on a Howard Holmes truck? A. I'm not positive.
"Q. And were being unloaded from a Howard Holmes truck? A. I'm not positive.
"Q. Because there was no Billy Walker truck, was there? A. I'm not positive it wasn't.
"Q. It was a Howard Holmes truck, wasn't it? A. I don't think so.
"Q. As a matter of fact, don't you know it was a Howard Holmes truck? A. I do not know it.
"Q. The only truck that was hooked onto this load, who owned it? A. I think Billy Walker because
"Q. You mean to tell this jury that both these winch trucks were Billy Walker trucks? A. I am not sure but I think that both of them were Billy Walker trucks. (Emphasis ours).
* * * * * *
"Q. Now, at the time that this incident occurred, there were two winch trucks hooked onto this load, weren't there? A. That's right.
"Q. Now, who had directed the trucks how to hook onto that load? A. I suppose, Ross Solomon.
"Q. Did you? A. No, sir.
"Q. You were there in a supervisory capacity, weren't you? A. I wouldn't say that.
"Q. Well, you were the tool pusher? A. I was the tool pusher, yes, sir.
"Q. And Ross Solomon was the Assistant Drilling Superintendent? A. That is right, and he was there too. He and Buster Florence both were drilling superintendents.
"Q. They were both there? A. Yes, sir.
"Q. Now, didn't Buster Florence come up after this accident occurred? A. No, sir.
"Q. Didn't Buster Florence come up just as the accident occurred? A. Buster Florence come up and said he knew when I stepped on the front of the truck."
The plaintiff further testified:
"Q. But you don't know whether the other truck was a Walker truck or a Howard Holmes Truck? A. I'm not positive. I'm not positive it was a Howard Holmes truck or I'm *687 not positive it was Billy Walker's truck.
"Q. Neither do you know about the load the truck that was on the other side? A. I think it was a Howard Holmes truck that was loaded with the lumber, the float load.
"Q. But you thought that Ross Solomon was the man in direction of the work, of the method of doing the work? A. I would say Ross Solomon was in charge of the work above me.
"Q. What happened to the other truck when the Walker line broke? A. I don't know.
"Q. You don't know because you had been thrown off? That's right." (Emphasis ours).
While the testimony is not clear and is more or less confusing throughout due to plaintiff's evasiveness and asserted ignorance of important details, indisputable facts emerge and appear controlling. We now recite them. The accident resulting in plaintiff's injuries occurred on the premises of his employer, the Howard P. Holmes Drilling Company. The immediate task in hand was unloading some rig lumber, to wit, oil and water soaked sills, the property of Holmes Drilling Company, from a float truck. In the work of unloading, a winch truck belonging to Billy Walker, the defendant, and another truck as to whose ownership plaintiff disclaims knowledge, were being used to hoist the heavy timbers off the float and lower them to the ground.
No employee of the defendant, other than the driver of the Billy Walker truck on which plaintiff was injured was on the premises. At least, none was identified as being present. Every person present, except driver of the Billy Walker winch truck, was an employee of Howard P. Holmes Drilling Company, for which company the sills were being delivered. These employees were Ross Solomon and Buster Florence, drilling superintendents for Holmes, as well as the plaintiff himself, a tool pusher. Asked if there was a Billy Walker pusher there, plaintiff replied, "Not that I know of."
At the time of plaintiff's injury the Billy Walker truck had already unloaded and having done so was ready to leave the Howard Holmes yard when the aid of its driver apparently was invoked to assist in unloading the float in question by the Howard Holmes employees, including its drilling superintendent. This fact appears by testimony so compelling as to be unanswerable. No tool pusher or person in supervisory capacity working for Billy Walker other than the driver of the winch truck involved, was then or at any other time identified as being present, or there-abouts. The only supervisors on the job were the three supervisors for Howard Holmes, Ross Solomon, Buster Florence and the plaintiff himself. They and they alone had any direction of the work in hand. Note these words from plaintiff:
"Q. Now, who had directed the trucks how to hook onto that load? A. I suppose, Ross Solomon.
* * * * * *
"A. Buster Florence come up and said he knew when I stepped on the front of the truck.
"Q. Now, he wasn't directing anything in the way of doing the work, was he, Buster Florence wasn't? A. I would think that he would be supervisor, yes, sir.
"Q. The only supervisors that were there then were you and Buster Florence and Solomon? A. Ross Solomon and Buster Florence were both my superiors.
"Q. You were there? A. Yes, sir.
"Q. Now, there was no Billy Walker pusher there, was there? A. Not that I know of.
"Q. Now, then, when you hooked these trucks onto this load, either you or Ross Solomon or Buster Florence told them how they wanted them hooked on, didn't they? A. I don't remember as anyone told them anything.
*688 "Q. Well, somebody was directing the manner of doing the work. A. Well, that would be Ross Solomon, I suppose.
* * * * * *
"A. I think it was a Howard Holmes truck that was loaded with the lumber, the float truck.
"Q. But you thought that Ross Solomon was the man in direction of the work, of the method of doing the work? A. I would say Ross Solomon was in charge of the work above me." (Emphasis ours).
It being so obvious from foregoing testimony that the Billy Walker winch truck was detained under the circumstances shown to assist in the work of unloading sills from a Howard Holmes truck, and all details and direction of the work being under the direct supervision of two drilling superintendents and a tool pusher of the Howard Holmes Company, it is easy to understand the contention of counsel for defendant, with which we are compelled to agree, that for purposes of the work underway, the driver of the Billy Walker truck became a special employee of Howard Holmes Drilling Company. If he was, then his acts became those of his special employer by reason whereof no liability in the premises can attach to Billy Walker for the negligence, if any, of the driver of the Billy Walker winch truck so engaged.
The case most strongly relied upon by counsel for the defendant is so nearly in point on its facts as to suffice in and of itself to support the action of the trial court in directing a verdict for defendant when the plaintiff rested his case in chief. We refer to the case of Jones v. George F. Getty Oil Company, 10 Cir., 92 F.2d 255, 258, which arose on facts occurring in New Mexico, resulting in the affirmance of a judgment of the District Court of New Mexico for the District of New Mexico.
It may be well to recite the controlling facts in the Getty Oil Company case. The latter company owned, controlled and operated a 40-acre tract of land upon which were located three water wells and numerous oil wells which it maintained. It made a contract with one E.C. Norwood to sell him specified quantities of water for the latter's drilling operations. On the date in question, April 8, 1934, the three water wells had become out of repair and ceased to pump water. This prevented Norwood from continuing the drilling of oil wells, no other source of water being available. In such circumstances Norwood along with his foreman, Bill Wood, instructed plaintiff, Jones, and other employees to accompany him (Bill Wood) upon the 40-acre tract of defendant to repair the wells mentioned.
The voluntary entry on defendant's premises by Bill Wood and his crew, including plaintiff, was with the consent of defendant, acting through its lease superintendent, Stewart, in charge of its premises. The suit in question was a common law action for damages. The court held there was no liability therefor, the plaintiff becoming a special employee of defendant whose sole liability was under the New Mexico Workmen's Compensation Law. The details of the accident which resulted in plaintiff's injuries for which damages were sought against defendant, owner of the wells in question, are disclosed by the following quotations from the opinion of the United States Circuit Court of Appeals for the 10th Circuit, of which New Mexico is a part, to wit:
"Immediately after Norwood's crew came on the work, Norwood's foreman directed plaintiff to climb the `gin pole,' attach a block to the top thereof and feed a pulley through the block. Plaintiff was standing near the top of the pole, pursuant to the aforesaid order, when a guy wire broke, allowing the pole to fall, injuring the plaintiff; it being alleged that the guy wire was broken through negligence of certain of defendant's employees.
"There is no allegation negativing defendant's power to control the work or allegation that Norwood's crew took charge of the work.
"If plaintiff was a temporary employee of defendant, then the latter's sole liability to him is under the New *689 Mexico Compensation Act; no common-law liability having application. The work being done was defendant's work. Norwood's act constituted a loan of his employees to defendant to assist, plaintiff being a temporary employee of defendant. If Norwood's men were mere volunteers, no common-law liability attached. The only duties under such circumstances owing by defendant to plaintiff was not to willfully or wantonly injure him or expose him to hidden peril. 45 C.J. p. 796; p. 788, § 194.
* * * * * *
"The controlling factor is: For whom is the work being performed, and who had the power to control the work and the employee? The authority to determine the work to be done, and the manner in which it is to be carried on, necessarily includes the right to suspend or terminate the work altogether or, possibly, to exclude the particular employee from the job, not including the right to discharge the employee from the service of his general employer (Norwood), nor need it include the actual giving of directions to the employee in connection with the work he is doing.
"Bill Wood, the foreman, and plaintiff, and the other members of Norwood's crew, had voluntarily entered upon said premises in said work with the consent of said defendant, who was the owner and in control, through his lease superintendent, Allen Stewart."
The application of controlling principles to the position of the parties is identical in the Getty case and in the case at bar. In the Getty case, if the plaintiff as a general employee of Norwood became a special employee of Getty Oil Company as to the work in hand, such company became subject to compensation under the New Mexico Workmen's Compensation law and by the same token absolved from common law liability to plaintiff for the injuries suffered by the latter. In like fashion, if the driver of defendant's winch truck in rendering the service he did in the unloading of the Holmes float truck became a special employee of Howard Holmes Drilling Company in performing the work he did, the relation of respondeat superior no longer and for purposes of that employment existed between such employee and Billy Walker and the latter could not be subjected to liability in damages for the negligence, if any, of the Billy Walker winch truck. The problem is that simple.
Every test set forth in the Getty case for determining whether the relation of special employee to the Howard Holmes Drilling Company existed is fully met in the case before us. The work being done was for the benefit of the Holmes Company. It had the power to control the work and the special employee through its supervisors on the ground. Admittedly, they directed the course of the work throughout. No other employee of Billy Walker, the general employer of the driver of the winch truck, was around or assisting in the work being done for benefit of the Holmes Company, except that driver himself.
One of the supporting cases cited and relied upon in the Getty Oil Company case is that of McLamb v. E.I. DuPont DeNemours & Co., 4 Cir., 79 F.2d 966, 967, the opinion in which contains such an illuminating discussion of the whole question that we quote therefrom at some length, as follows:
"It is of course true that `one may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person, with all the legal consequences of the new relation.' Standard Oil Company v. Anderson, 212 U.S. 215, 220, 29 S. Ct. 252, 253, 53 L. Ed. 480. This is what the plaintiff claims took place in his case. However, this is but one aspect of the situation. The alternatives are presented in the following passage from the same authority, 212 U.S. 215, at page 221, 29 S. Ct. 252, 254, 53 L. Ed. 480: `It sometimes happens *690 that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work, and places them under his exclusive control in the performance of it, those men become pro hac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another that that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work, and they are, for the time, his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still, in its doing, his own work. To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.'"
While an opinion by the United States Circuit Court of Appeals of which New Mexico forms a part, is not binding on this Court; nevertheless, where as well supported in reason and logic as this one, it is highly persuasive. We have not heretofore had occasion to notice the opinion in the Getty case on this exact point, though we did see fit to cite and accept it on another, in Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178. We now accept it with equal assurance on the decisive issue before us in the case at bar. The rationale of the Getty case is truly applicable here. It persuades us to hold with the defendant that the driver of the Billy Walker winch truck was a special employee of the Howard P. Holmes Drilling Company at the time of plaintiff's injury. Hence, we are unable to hold defendant liable in a common law action for damages. It is, therefore, not anomalous to note that Holmes Company's insurance carrier seeks, in this very action, to reimburse itself the amounts paid to plaintiff in a recognition by the latter of liability for compensation to him under the New Mexico Workmen's Compensation Law. While this fact alone would not foreclose plaintiff's right to maintain the present action, it is entirely consistent and in harmony with our conclusion of nonliability on defendant's part. Before closing we shall add a few additional cases dealing generally with the question we have been considering. State Compensation Ins. Fund v. Industrial Acc. Commission, 26 Cal. 2d 278, 158 P.2d 195; Moleton v. Union Pac. R.R. Co., 118 Utah 107, 219 P.2d 1080 and Carnes v. Industrial Commission, 73 Ariz. 264, 240 P.2d 536.
It follows from what has been said that the judgment of the district court is correct and should be affirmed.
It is so ordered.
COMPTON, C.J., and LUJAN and McGHEE, JJ., concur.
KIKER, J., concurring specially.
KIKER, Justice (concurring specially).
I concur in the result. My reason for so doing is that, after what I think is a very careful search of the record, I do not find sufficient evidence to support a prima facie case that defendant's negligence was the proximate cause of plaintiff's injuries. I think that the first ground of the motion made by defendant should have been sustained; I think it may well be that it was on that ground *691 that the trial judge sustained the motion for a directed verdict. I am in serious doubt that defendant's truck driver, if defendant had a truck at the place of injury, was a special employee of Howard P. Holmes Drilling Co. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264315/ | 14 Cal.App.4th 745 (1993)
17 Cal. Rptr.2d 734
ERNEST CARLETON, Plaintiff and Appellant,
v.
MARY TORTOSA, Defendant and Respondent.
Docket No. C013153.
Court of Appeals of California, Third District.
March 25, 1993.
*749 COUNSEL
DeRonde & DeRonde and John A. DeRonde, Jr., for Plaintiff and Appellant.
Murphy, Pearson, Bradley & Feeney and Mark E. Ellis for Defendant and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
SCOTLAND, J.
This case presents the question whether a real estate broker had a duty to advise her client that the client's real estate transactions could have adverse tax consequences.
Plaintiff Ernest Carleton, an experienced real estate investor, employed defendant Mary Tortosa, a real estate broker, in the sale of two residential rental properties and the purchase of two residential rental properties. Plaintiff executed listing agreements, real estate disclosure statements, and real estate purchase contracts which advised him that defendant's responsibilities as a broker did not include giving advice on tax consequences of the transactions. After the transactions were completed, plaintiff was informed *750 by his accountant that plaintiff incurred a tax liability of approximately $34,000 because the transactions were not structured to qualify as tax-deferred exchanges under Internal Revenue Code section 1031. (26 U.S.C. § 1031; hereafter section 1031.)
Plaintiff then brought this professional negligence action, alleging in substance that defendant "failed to exercise reasonable care and skill in undertaking her duties as a broker" by neglecting to warn plaintiff his transactions could have adverse tax consequences and by failing to structure the transactions as tax-deferred exchanges.
Defendant filed a motion for summary judgment on the ground "plaintiff cannot establish duty or breach of duty as a matter of law." The trial court granted the motion, ruling: "Defendant Tortosa was in a fiduciary relationship with plaintiff. This relationship was defined by the documents [executed by plaintiff].... [¶] These documents evidence the nature of the fiduciary relationship between defendant and plaintiff [which] did not include a separate responsibility on the part of defendant to advise plaintiff Earnest [sic] Carleton on tax matters, but rather, specifically excluded the provision of tax advice from the scope of defendant Tortosa's duty to plaintiff. Plaintiff Carleton was specifically instructed to look to other professionals for tax advice. Thus, defendant Tortosa had no affirmative duty to provide tax advice to plaintiff Carleton or to structure the escrows of the subject transactions in such a way as to reap the greatest tax benefits to him. Such advice is strictly outside the scope of a real estate agent's fiduciary duty to her client."
Plaintiff appeals from the order and judgment. He claims a real estate broker's duty to exercise reasonable skill and care for the benefit of the client extends to advising the client that a transaction could have adverse tax consequences and recognizing the need for a tax-deferred exchange. According to plaintiff, the use of "`boilerplate' disclaimers" in the listing agreements, disclosure forms and purchase contracts stating a real estate broker is not responsible for giving tax advice did not relieve defendant of the duty to warn plaintiff that his proposed transactions were in the nature of "an IRC 1031 Delayed Exchange and [to advise plaintiff] to secure the assistance of outside professionals in the event that [defendant] could not competently handle the transaction." (Italics omitted.) This is so, he argues, because any contractual provision relieving a real estate broker of the duty to recognize and alert a client to potential tax consequences of a transaction violates public policy.
As we shall explain in the published portion of this opinion, aside from obligations imposed by statute and implementing regulations, a real estate *751 broker's duty is derived from the agreement between the broker and client. In this case, the parties' agreement in effect specified that defendant had no duty to recognize and advise plaintiff regarding the potential tax consequences of his transactions. Contrary to plaintiff's claim, this contractual provision did not violate public policy because the Legislature has determined that sellers and buyers of real estate should obtain tax advice from professionals other than real estate brokers. (Civ. Code, § 2375.) In the unpublished part of this opinion, we reject plaintiff's contention that the trial court erred in ordering plaintiff to pay defendant's attorney fees. Accordingly, we shall affirm the judgment.
FACTS
Plaintiff is a teacher of high school English and foreign languages with 25 years' experience in real estate investing. With the professional assistance of defendant, plaintiff had invested in Winters, California, for five or six years prior to the present transactions.
On April 17, 1990, plaintiff executed an "Exclusive Authorization and Right to Sell" (listing agreement) to sell his property at 1028 Adams in Winters. The property was sold and escrow closed on May 29, 1990.
On April 25, 1990, plaintiff contracted to purchase property at 467 Edwards in Winters. Escrow closed on June 18, 1990.
On June 14, 1990, plaintiff executed a listing agreement to sell his property at 1001 Adams in Winters. The property was sold and escrow closed on August 15, 1990.
On July 5, 1990, plaintiff contracted to purchase property at 1103 Hoover in Winters. Escrow closed on August 28, 1990.
The listing agreements for the sales of the properties at 1028 Adams and 1001 Adams advised plaintiff: "A real estate broker is the person qualified to advise on real estate. If you desire legal or tax advice, consult an appropriate professional." For each of the four transactions defendant furnished plaintiff a written "Disclosure Regarding Real Estate Agency Relationships" which advised plaintiff: "The above duties of the agent in a real estate transaction do not relieve a Seller or a Buyer from the responsibility to protect their [sic] own interests. You should carefully read all agreements to assure that they adequately express your understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional." In addition, for each of the four *752 transactions plaintiff executed a "Real Estate Purchase Contract and Receipt for Deposit" which advised him: "Legal and Tax Advice: A real estate broker or agent is qualified to advise on real estate. If you require legal or tax advice, consult your attorney or accountant. No representation or recommendations are made by the broker, agents, or employees as to the legal sufficiency, effect, or tax consequences of this document or the transaction relating thereto. These questions are for your attorney and or your accountant."
During the course of the transactions, plaintiff asked defendant how many days he had to reinvest the proceeds of the two sales in order to avoid paying capital gains tax. Defendant answered: "I don't know.... Ask your tax person." Plaintiff called his accountant. "[T]he tax lady that does [his] taxes wasn't in, so [he] talked to her assistant, and she said [he had] forty-five days [to reinvest]."
After the transactions were completed, plaintiff's accountant prepared plaintiff's income tax returns and informed him he incurred a capital gains tax liability of approximately $34,000. The transactions failed to qualify as tax-deferred exchanges because they were not conducted through a third party intermediary.
DISCUSSION
I
(1) "Since a summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review them on appeal, applying the same three-step analysis required of the trial court.... (2a) First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.... [¶] Second[], we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor.... (3) The motion must stand self-sufficient and cannot succeed because the opposition is weak.... A party cannot succeed without disproving even those claims on which the opponent would have the burden of proof at trial.... [¶] (2b) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.... (4) Counteraffidavits and declarations need not prove the opposition's case; they suffice if they disclose the *753 existence of a triable issue." (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App.3d 1061, 1064-1065 [225 Cal. Rptr. 203], citations omitted; see FPI Development, Inc. v. Nakashima (1991) 231 Cal. App.3d 367, 381-382 [282 Cal. Rptr. 508].)
Plaintiff's complaint alleges defendant was negligent in two respects: in preparing the deposit receipts and structuring the escrows; and in failing to tell plaintiff of defendant's lack of expertise in structuring tax-deferred real estate exchanges and by further failing to advise plaintiff to seek other professional assistance in structuring the transactions.
The issue framed by each theory of liability relates to defendant's failure to inform plaintiff of the tax consequences of his transactions. Plaintiff contends defendant had a duty to "recogniz[e] a tax-free exchange setting" and to "direct[] the client to an exchange company if [defendant] did not possess the requisite expertise." (Italics omitted.) (5-9) (See fn. 1.) According to plaintiff, defendant "at least had an obligation to `issue-spot' or warn Plaintiff about the capital gains consequences of proceeding without adequate advice...." (Italics omitted.)[1]
*754 In her motion for summary judgment, defendant asserted she negated plaintiff's claims of negligence by showing she had no duty to prepare the escrows and structure the deposit receipts so as to minimize adverse tax consequences, she had no duty to advise plaintiff of her lack of experience with tax-deferred exchanges, and she fulfilled any duty to advise him to seek other professional assistance regarding the tax consequences of the transactions. In support of her motion for summary judgment, defendant submitted excerpts from plaintiff's deposition, his responses to interrogatories and requests for admissions, and documentation from numerous real estate transactions in which plaintiff participated as buyer or seller, including those here in issue.
(10a) We agree with the trial court that defendant's showing established facts which negated plaintiff's claims and justified a judgment in defendant's favor. (AARTS Productions, supra, 179 Cal. App.3d at pp. 1064-1065.)
(11) "The elements of a cause of action for negligence are commonly stated as (1) a legal duty to use due care; (2) a breach of that duty; (3) a reasonably close causal connection between that breach and the resulting injury; and (4) actual loss or damage." (Ahern v. Dillenback (1991) 1 Cal. App.4th 36, 42 [1 Cal. Rptr.2d 339]; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60.) Failure to prove any one of these elements is fatal to plaintiff's recovery. (Banerian v. O'Malley (1974) 42 Cal. App.3d 604, 612 [116 Cal. Rptr. 919].)
(12a) Whether a legal duty of care exists in a given factual situation is a question of law to be determined by the court, not the jury. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624]; Ahern, supra, 1 Cal. App.4th at p. 42; Clarke v. Hoek (1985) 174 Cal. App.3d 208, 213 [219 Cal. Rptr. 845].) (13a) Where a duty is found to exist, a real estate agent must fulfill it by exhibiting the degree of care and skill ordinarily exhibited by professionals in the industry. (2 Miller & Starr, op. cit. supra, § 3:17, pp. 94-95; Montoya v. McLeod (1985) 176 Cal. App.3d 57, 65 [221 Cal. Rptr. 353]; Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal. App.3d 860, 871 [86 Cal. Rptr. 359]; Brady v. Carman (1960) 179 Cal. App.2d 63, 68 [3 Cal. Rptr. 612].)
(14) The degree of care and skill required to fulfill a professional duty ordinarily is a question of fact and may require testimony by professionals in *755 the field if the matter is within the knowledge of experts only. (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702 [106 Cal. Rptr. 1, 505 P.2d 193]; see Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844-845 [206 Cal. Rptr. 136, 686 P.2d 656].) (12b) However, expert testimony is incompetent on the predicate question whether the duty exists because this is a question of law for the court alone. (Clarke, supra, 174 Cal. App.3d at p. 214.) (10b) Plaintiff's contention that the trial court erroneously disregarded "custom and practice testimony, i.e., the testimony of other professionals in the same field," fails because, for reasons which follow, the trial court properly concluded defendant had no duty to structure the transaction to minimize plaintiff's tax liability or to advise him of her lack of expertise with section 1031 exchanges.
(13b) Real estate brokers are subject to two sets of duties: those imposed by regulatory statutes, and those arising from the general law of agency. (2 Witkin, Summary of Cal. Law, op. cit. supra, Agency and Employment, § 253, pp. 245-246.) Plaintiff does not contend defendant failed to fulfill a duty imposed by statute or implementing regulation (e.g., Civ. Code, § 1102 et seq. [agent's duty to inspect property; disclosure requirements]). Thus, he must derive defendant's duty from the general law of agency, i.e., from the agreement between the principal and agent. (15) "The existence and extent of the duties of the agent to the principal are determined by the terms of the agreement between the parties, interpreted in light of the circumstances under which it is made, except to the extent that fraud, duress, illegality, or the incapacity of one or both of the parties to the agreement modifies it or deprives it of legal effect." (Rest.2d Agency, § 376; Anderson v. Badger (1948) 84 Cal. App.2d 736, 741 [191 P.2d 768]; 3 Cal.Jur.3d, Agency, § 87, pp. 119-120; cf. Ahern, supra, 1 Cal. App.4th at p. 43 [insurance agent owes duties normally found in agency relationship].)
(10c) Plaintiff's agreement with defendant is contained in the listing agreements, disclosure statements and purchase contracts described above. Plaintiff admitted each document was genuine, stated he read each document prior to signing, acknowledged he understood each document was legally significant, and admitted defendant did nothing to prevent him from reading each document in its entirety. Plaintiff claimed he only "glanced through" some of the documents because "[i]t is a bore to read through these kinds of real estate transactions." (16) However, his failure to read the documents does not permit him to avoid their legal effect, and plaintiff does not contend otherwise. (E.g., Bolanos v. Khalatian (1991) 231 Cal. App.3d 1586, 1590 [283 Cal. Rptr. 209].)
(10d) The listing agreements for sales of the properties at 1028 Adams and 1001 Adams told plaintiff that defendant, a real estate broker, was *756 "qualified to advise on real estate," but informed plaintiff he should "consult an appropriate professional" if he desired legal or tax advice. The real estate agency disclosure forms advised plaintiff to "carefully read all agreements to assure that they adequately express your understanding of the transaction," and reiterated that "[a] real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional."[2] The real estate purchase contracts informed plaintiff that "[a] real estate broker or agent is qualified to advise on real estate. If you require legal or tax advice, consult your attorney or accountant." Moreover, the contracts specifically advised plaintiff that "[n]o representation or recommendations are made by the broker, agents, or employees as to the legal sufficiency, effect, or tax consequences of this document or the transaction relating thereto. These questions are for your attorney and or your accountant."
These documents negate plaintiff's claim of duty. His allegation that defendant had a duty to prepare the deposit receipts and structure the escrows in a manner which would minimize plaintiff's tax liability is negated by the purchase contracts' provision stating the broker makes no representation or recommendation as to the tax consequences of the transaction. Were defendant subject to the alleged duty, she necessarily would "represent" she has structured the transaction to minimize any adverse tax consequences. This is precisely what the document states the broker does not do.
Plaintiff's claim that defendant had a duty to inform him of her lack of expertise with section 1031 exchanges and to advise him to seek other professional help in that regard is negated by the documents' provisions stating a broker is qualified to advise on real estate but legal or tax advice should be obtained from a "competent professional," an "attorney and or ... accountant." These documents also provide the very advisement which plaintiff claims defendant should have given: that plaintiff should "seek other professional assistance" regarding tax consequences of the transactions here at issue.
Likewise, plaintiff's allegation that defendant had a duty to "issue-spot" or warn him regarding tax consequences of the transactions is at odds with the documents' admonition that plaintiff should get his tax advice elsewhere. (Cf. Ahern, supra, 1 Cal. App.4th 36 [absent some conduct on the part of the *757 agent consistent with assuming broader duties, the agent's duties are limited to those arising out of the contract].)[3]
This case is similar to Santos v. Wing (1961) 197 Cal.App.2d 678 [17 Cal. Rptr. 457], where sellers of property were dissatisfied because, as structured, the sale had unfortunate tax consequences. In rejecting sellers' effort to hold the real estate agents responsible, the court explained: "We do not find in the evidence any suggestion that the [agents] had any knowledge of the appellants' tax situation, or what if any tax might result to the appellants from this sale. The [agents] did not attempt to give the appellants any tax advice. On the contrary, they urged appellants to seek counsel; the appellants did have an accountant and they had an attorney, and the appellant Santos held the seller's instructions in his possession for several days for the announced purpose of seeking legal advice." (Id., at p. 684.) Here, as in Santos, defendant real estate broker did not attempt to give tax advice. (17) (See fn. 4.), (10e) Rather, she repeatedly advised plaintiff in writing to seek tax advice from an attorney or accountant.[4]
Citing Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 98-101 and Akin v. Business Title Corp. (1968) 264 Cal. App.2d 153, 158-159 [70 Cal. Rptr. 287], plaintiff contends the disclaimer language in the listing agreements, disclosure statements and purchase contracts should be disregarded. Tunkl and Akin hold that contractual language exculpating a party from responsibility for its future negligence is invalid under Civil Code *758 section 1668 where the contract affects a public interest. (Tunkl, supra, 60 Cal.2d at pp. 96, 101-104 [a release from liability for future negligence imposed as a condition for admission to a charitable research hospital is invalid as contrary to the public interest]; Akin, supra, 264 Cal. App.2d at p. 159.)
Plaintiff's reliance on Tunkl and Akin is misplaced. In this case, the contractual language does not exculpate defendant from her negligence, i.e., from her breach of an extant duty of care. Rather, the contractual language in effect specifies that a real estate broker has no duty to provide legal or tax advice. Thus, the failure to provide such information is not negligence, and the rules governing exculpation from negligence do not apply.
Nevertheless, plaintiff suggests that any contractual provision relieving real estate brokers of a duty to recognize and alert a client to the potential tax consequences of a transaction violates public policy. (Cf. Easton v. Strassburger (1984) 152 Cal. App.3d 90 [199 Cal. Rptr. 383] [holding broker has duty to inspect premises; later codified in Civ. Code § 1102 et seq.]; see also Schoenberg v. Romike Properties (1967) 251 Cal. App.2d 154, 162 [59 Cal. Rptr. 359] [duty to investigate property to determine its value].) According to plaintiff, "current real estate practice" dictates that a real estate professional has a duty to recognize tax consequences of a transaction and to structure tax-deferred exchanges when appropriate. He points to evidence that defendant was familiar with tax-deferred exchanges, had taken a class entitled "Unmasking and Masking and Creatively Protecting Clients in Exchanges," and had attended a seminar on "Tax Aspects of Real Estate." Plaintiff claims that, because brokers hold themselves out to the public as possessing special knowledge in real estate transactions and "given the evolution of the real estate profession into new and emerging fields (including [tax-deferred exchanges])," public policy requires brokers to have a duty to recognize and advise clients of the tax consequences of their transactions and of the need for tax-deferred exchanges.
This contention fails because the Legislature has determined that public policy expects sellers and buyers to obtain tax advice from professionals other than real estate brokers. By enacting Civil Code section 2375, the Legislature has mandated that buyers and sellers be told: "A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional." We decline to conclude that public policy requires real estate brokers to provide tax advice when the Legislature has determined that such advice should be sought from other competent professionals.
Plaintiff also claims the "boilerplate" language in his contracts stating defendant was not responsible for giving tax advice is adhesive and, thus, *759 should be disregarded. (18) "A contract of adhesion has been defined as `a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.' [Citations.]" (Izzi v. Mesquite Country Club (1986) 186 Cal. App.3d 1309, 1317 [231 Cal. Rptr. 315].) (10f) The contention fails because, even if it is adhesive in nature, "the contract would remain fully enforceable unless (1) all or part of the contract fell outside the reasonable expectations of the weaker party or (2) it was unduly oppressive or unconscionable under applicable principles of equity." (Ibid.) Because the Legislature has determined that buyers and sellers of real estate should rely on professionals other than real estate brokers for tax advice, any expectation on the part of plaintiff that defendant would provide such information or "issue-spot" tax problems was not reasonable. Moreover, none of the contractual terms is either "unduly oppressive" or "unconscionable." (Ibid.)
Since defendant's showing in support of her motion for summary judgment established facts which negated plaintiff's claims of duty, the final step of our analysis is to determine whether plaintiff's opposition to defendant's motion for summary judgment demonstrated the existence of a triable, material issue of fact. (AARTS Productions, supra, 179 Cal. App.3d at pp. 1064-1065.) It does not. Plaintiff's opposition relied on excerpts from defendant's deposition which suggest defendant was knowledgeable about the requirements for section 1031 exchanges. While such knowledge may establish an ability to structure the transaction to minimize tax consequences or to warn plaintiff, it does not establish a duty to do so. Defendant cannot be negligent for failing to do what she had no duty to do. (Banerian, supra, 42 Cal. App.3d at p. 613.)[5]
The trial court properly granted summary judgment because defendant demonstrated her entitlement to judgment as a matter of law, and plaintiff failed to raise a material factual issue necessitating a trial. (AARTS Productions, supra, 179 Cal. App.3d at pp. 1064-1065.)
II[*]
.... .... .... .... .... .... .... .
*760 DISPOSITION
The judgment is affirmed.
Puglia, P.J., and Sims, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 1, 1993.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.
[1] To provide a factual context for the claimed duty, plaintiff asks us to take judicial notice of "the substantial `industry' that has grown-up [sic] under [section 1031]" as demonstrated by a series of documents contained in plaintiff's appendix to his opening brief. Defendant retorts the request for judicial notice should be denied because none of the documents was before the trial court and several documents are not proper subjects of judicial notice.
"Appendix A" contains an advertisement and a brochure by private corporations whose business includes conducting section 1031 exchanges. "Appendix B" is a private corporationss summary of changes in federal regulations relating to section 1031 exchanges; the regulations themselves are not included. (5), (6) "Appendix A" and "Appendix B" are not appropriate subjects of judicial notice because they do not contain matters of "common knowledge within the territorial jurisdiction of [this] court" (Evid. Code, § 452, subd. (g)) and there is no other statutory basis for judicial notice of this information.
"Appendix C" is an official publication of the California Department of Real Estate stating the general areas tested on the real estate brokers' examination, including "Tax Implications of Real Estate Ownership." However, section 1031 is not mentioned explicitly and no level of expected proficiency with section 1031 is indicated. "Appendix D" is a California Department of Real Estate bulletin containing a "Revised Code of Ethics for R.E. Licensees." No reference is made to section 1031 exchanges. "Appendix E" is an excerpt from 2 Miller and Starr, California Real Estate (2d ed. 1989) Agency, section 3:18.
(7a), (8a) "Appendix C" and "Appendix D" are "official acts" of the executive department of this state, and "Appendix E" is not reasonably subject to dispute and is capable of immediate and accurate determination by reference to the cited text. (Evid. Code, § 452, subds. (c), (h).) Thus, these documents are proper subjects of judicial notice. However, "courts have cautioned against judicially noticing matters that were not before the trial court. (9) `[A]s a general rule the [appellate] court should not take ... [judicial] notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance.' [Citations.] Such a rule prevents the unfairness that would flow from permitting one side to press an issue or theory on appeal that was not raised [in the trial court]. [Citation.]" (People v. Hardy (1992) 2 Cal.4th 86, 134 [5 Cal. Rptr.2d 796, 825 P.2d 781].) Hardy provides an exception where the request for judicial notice is unopposed and the matters to be judicially noticed are not reasonably open to dispute. (Id., at pp. 134-135.) (7b), (8b) Here, the request is opposed, and the general rule applies. Plaintiff's request for judicial notice is denied.
[2] This language is specified by Civil Code section 2375 (Disclosure Form Contents). Claiming the statute requires the language to appear on the disclosure form only if the agent is representing both the seller and the buyer, plaintiff argues: "Since [defendant] was [plaintiff's] (Seller's) agent, no such language was required." Plaintiff is wrong: the quoted language is required to appear whether the agent represents the seller, the buyer, or both. (Civ. Code, § 2375.)
[3] In Ahern, the purchasers of an automobile insurance policy sued their insurance agent claiming the agent negligently failed to procure certain insurance coverages or negligently failed to advise of the availability of such coverages. (1 Cal. App.4th at pp. 40-41, 42.) Summary judgment for the agent was affirmed because the agent had no duty, contractual or otherwise, to procure the additional coverage or advise the insureds of its availability. Plaintiff claims Ahern is "completely different from the instant case" because the insureds "could have purchased greater insurance coverage than that actually sold." The asserted distinction has no merit. Plaintiff could have consulted an attorney or an accountant, not "to look for properties to purchase in relation to an anticipated tax-free exchange," but to ensure that the exchange of properties he had located satisfies the legal requirements for section 1031 exchanges.
[4] Plaintiff contends Santos does not aid defendant based on an interpretation of the case by commentators. Miller and Starr suggest the Santos court "infers [sic] that [the broker] had a duty to disclose the tax problems if they knew [of the plaintiffs' tax situation], but the broker's duty in that regard was satisfied by urging the sellers to seek counsel from their attorney and accountant." (2 Miller & Starr, op. cit. supra, § 3:18, p. 111, italics in original.) However, Santos did not analyze whether there exists a duty to disclose tax consequences if the broker is aware of the seller's tax situation, and the court did not consider whether such a duty could be modified or negated by language in the agreements between the broker and the seller. "[C]ases are not authority for propositions not discussed or presented." (People v. Hill (1974) 12 Cal.3d 731, 766, fn. 34 [117 Cal. Rptr. 393, 528 P.2d 1], overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5 [135 Cal. Rptr. 786, 558 P.2d 872].)
[5] Plaintiff asks us to augment the record to include plaintiff's and defendant's depositions in their entirety because the latter "leaves the reader with a clear impression that Defendant, herself, recognized a duty in 1031 exchanges." Because such recognition would not be relevant to establish any duty on the part of defendant, plaintiff's request for augmentation is denied.
[*] See footnote, ante, page 745. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725718/ | 406 S.W.2d 515 (1966)
Herbert THRASHER et ux., Appellants,
v.
J. L. HENSARLING et ux., Appellees.
No. 4492.
Court of Civil Appeals of Texas, Waco.
July 7, 1966.
Moore & McVey, Bryan, for appellants.
A. H. Menefee, Madisonville, for appellees.
OPINION
McDONALD, Chief Justice.
This is an appeal from a judgment fixing the boundary line between lands of plaintiffs and defendants.
Plaintiffs Hensarling filed suit against defendants Thrasher in the nature of a trespass to try title action to a strip of land "30 feet wide and extending across the north side of the C. R. Hall Survey a distance of 1110 varas." Plaintiffs prayed "they be awarded title and possession to said strip of land and that the boundary line between them and * * * (defendants') tract of land be definitely established."
Defendants answered by plea of not guilty; and plead the 5 and 10 year Statutes of Limitations.
Trial was before the court without a jury which, after hearing, rendered judgment fixing the boundary line as contended by plaintiffs.
Defendants appeal, contending:
1) There is no evidence, or insufficient evidence, to support the judgment.
2) The case was never fully developed.
3) The court erred in overruling defendants' motion for judgment.
The record in this case contains a Transcript and a Statement of Facts. Such Statement of Facts affirmatively reflects that plaintiffs introduced an Abstract of Title, as well as a certified copy of a partition deed which have not been included in the Statement of Facts, or otherwise in the record on appeal.
*516 In the absence of a Statement of Facts, it must be presumed on appeal that the evidence supports the findings and judgment of the Trial Court. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; First Nat. Life Ins. Co. v. Herring, CCA (n. w. h.), 318 S.W.2d 119; Ehrhardt v. Ehrhardt, CCA, Er.Ref., 368 S.W.2d 37.
The same rule is applicable where only a partial Statement of Facts is submitted, or where the record on appeal is otherwise incomplete. Baker v. Rutherford, CCA, (n. r. e.) 293 S.W.2d 669.
In the absence of a complete record of the evidence before the Trial Court (which it is appellants' duty to bring forward), we cannot say that the judgment of the Trial Court is not correct.
Defendants' points and contentions are overruled.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264321/ | 879 F.Supp. 567 (1995)
William E. MINCEY, III, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, South Carolina Rural Letter Carriers' Association, and National Rural Letter Carriers' Association, Defendants.
No. 4:94-818-21.
United States District Court, D. South Carolina, Florence Division.
February 3, 1995.
*568 E.N. Zeigler, Florence, SC, for plaintiff.
Terri Hearn Bailey, Asst. U.S. Atty., Columbia, SC, William B. Peer, Washington, DC, for defendants.
ORDER
TRAXLER, District Judge.
On August 10, 1992, William E. Mincey, III ("Mincey") resigned from his position as a rural mail carrier with the United States *569 Postal Service ("Postal Service"). Over a year and half later, Mincey filed this wrongful discharge/fair representation action against the Postal Service and the South Carolina Rural Letter Carriers' Association ("SCRLCA"). See 39 U.S.C.A. § 1208(b) (West 1980). Mincey subsequently filed an Amended Complaint, naming the National Rural Letter Carriers' Association ("NRLCA") as an additional defendant. The Postal Service, the SCRLCA and the NRLCA (collectively "Defendants") have filed motions to dismiss or in the alternative for summary judgment. After a thorough review of the record, the court concludes that the Defendants are entitled to summary judgment.
I. FACTS
Viewed in the light most favorable to Mincey, the facts are as follows. From March 1976 through August 1992, Mincey was employed by the United States Postal Service at its facility in Nichols, South Carolina. During this period, Mincey was also a member of and a local steward for the SCRLCA and the NRLCA (collectively "the Union").
Mincey testified at his deposition that the events giving rise to his resignation began on August 8, 1992. That afternoon, Mincey rode with a friend to J.M. Stanley's Country Grocery Store to purchase gasoline. As they approached the store, Mincey noticed a van leave at a high rate of speed. When J.M. Stanley ("Stanley"), the store proprietor, did not come out of the store in response to their honk for service, Mincey and his friend climbed out of the car and walked into the store. As they entered the store, they discovered the body of Stanley; he had been shot and the store ransacked.
Mincey testified that in the days following Stanley's murder he became convinced that his life was in danger since he had seen the individuals who had shot Stanley fleeing the scene of the crime. As a result, he decide to sell his house, quit his job, and leave the state. Thus, on August 10, 1992, Mincey submitted a letter of resignation to Paula Cribb ("Cribb"), his supervisor at the Nichols Post Office. Because his resignation was unexpected, Cribb told Mincey that she would hold his letter for a day before sending it in.
Three days later, on August 13, 1992, Mincey sought to rescind his letter of resignation after learning that the individuals who had killed Stanley had been captured. Cribb told Mincey that she had submitted his letter of resignation to the Personnel Office two days earlier, but that she was willing to allow him to rescind it if his resignation had not already been processed and become effective. Using Cribb's phone, Mincey called the Personnel Office and asked whether he could withdraw his resignation. The Personnel Office informed Mincey that his resignation had already been entered into the computer and could not be revoked.
When Mincey relayed this information to Cribb, she suggested that he contact the State Steward for the SCRLCA, Brady Porth ("Porth"), and inquire about filing a grievance. Again using Cribb's phone, Mincey called Porth. When he could not immediately contact Porth, Mincey asked Cribb whether he could personally file a grievance with her. Cribb stated that she was not sure since he was no longer a postal employee, but that she would check and let him know what she found out. On August 20, 1992, Cribb contacted Mincey and informed him that because he was no longer a Postal Service employee he would have to proceed through the Union in order to file a grievance.
Meanwhile, Mincey had spoken with Porth who agreed to look into the matter. After obtaining additional information from Mincey and checking with other Union officials, Porth telephoned Mincey on September 4, 1992 and told him that it did not appear that the Postal Service had done anything wrong by refusing to allow him to rescind his resignation. Therefore, he told Mincey that the Union did not intend to file a grievance on his behalf.
Approximately one month later, Mincey was admitted to Mullins Hospital after attempting to commit suicide. He was treated there until October 15, 1992 when he was discharged. The following day Mincey was admitted to the Addiction Treatment Unit of the Dorn Veterans' Hospital in Columbia, *570 South Carolina ("Veterans' Hospital") where he underwent a twenty-eight day treatment program for drug and alcohol addiction. He also participated in a group therapy session for post-traumatic stress disorder. As he was preparing to be discharged on November 13, 1992, Mincey spoke with a guidance counselor who suggested that Mincey file for unemployment compensation. The counselor further suggested that Mincey had a right to rescind his resignation and that he should contact an attorney if the Union could do nothing further.
As a result of the counselor's urging, Mincey filed for unemployment benefits. Although his application was initially denied, Mincey appealed the decision and eventually obtained benefits. Mincey also contacted Porth again and inquired as to whether his psychological problems provided a basis for allowing him to withdraw his resignation. Porth stated that they might if Mincey could produce evidence that he was unable to think rationally at the time he tendered his resignation. Mincey did not contact an attorney.
In July 1993, Mincey wrote to Leo J. Root ("Root"), Director of Labor Relations for the NRLCA, requesting additional advice regarding the possibility of rescinding his resignation. Root responded in a letter dated July 27, 1993, stating that he was sympathetic to Mincey's plight and that he had instructed Porth to initiate a grievance on Mincey's behalf but "that the chances of success on this issue are not very good, especially since you resigned almost a year ago."
Porth subsequently inquired of the Veterans' Hospital whether Mincey was competent in August 1992 to make a rational decision regarding his resignation. In a letter dated September 10, 1993, the Hospital replied:
[I]t is the opinion of Dr. Praxedes Sebastian that a determination cannot be made as to whether or not Mr. Mincey was of a sound state of mind in August 1992 to make a rational decision with regards to resigning from his job. Dr. Sebastian treated Mr. Mincey only for poly-substance abuse while he was hospitalized from October 16, 1992 to November 13, 1992.
Porth relayed this information to Mincey and stated that based on the lack of evidence of psychological impairment he did not intend to file a grievance on Mincey's behalf. At Mincey's request, Porth memorialized his decision in a letter dated September 20, 1993.
Thereafter, Mincey hired an attorney. Mincey's attorney sent a letter to the Union dated March 14, 1994, demanding that the Union file a grievance. Attached to the letter was the opinion of Dr. Harold Morgan, a psychiatrist, stating that Mincey was unable to think rationally at the time he resigned from his position as a rural mail carrier. Three days later, on March 17, 1994, Mincey filed this action.
The Postal Service seeks dismissal of the action pursuant to Federal Rule Civil Procedure 12(b)(1) on the ground that Mincey has failed to allege an adequate jurisdictional basis for his claim. The Postal Service also seeks dismissal of Mincey's claim pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that it was not timely filed. Finally, the Postal Service argues that it is entitled to summary judgment because Mincey has failed to produce any evidence demonstrating that the Postal Services' refusal to reinstate him violated the National Agreement. The SCRLCA and NRLCA join in each of the arguments raised by the Postal Service, and the SCRLCA additionally asserts that it should be dismissed from the action because it was not a party to the collective bargaining agreement between the Postal Service and the NRLCA.
II. DISCUSSION
A. Motions to Dismiss.
Because the court has allowed Mincey to amend his complaint to set forth the correct statutory basis for his claim, the motion to dismiss for lack of subject matter jurisdiction is moot. The court also denies the SCRLCA's motion to dismiss based on its assertion that it was not a party to the collective bargaining agreement between the Postal Service and the NRLCA (hereinafter "National Agreement"). Mincey does not contend that the SCRLCA violated a provision of the National Agreement; rather, he maintains that the SCRLCA violated its duty of fair representation. Finally, because matters *571 outside the pleadings have been presented, the court concludes that the motion to dismiss for lack of timely filing is properly treated as a motion for summary judgment under Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(b).
B. Motion for Summary Judgment.
1) Summary Judgment Standard.
Federal Rule of Civil Procedure 56(c) states that upon a motion for summary judgment:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Accordingly, judgment for the movant is proper if he demonstrates that: (1) there is no genuine issue as to any material fact; and (2) he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257, 106 S.Ct. at 2514-15. In determining whether a genuine issue of material fact has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must produce evidence to establish the existence of every essential element of his action on which he will bear the burden of proof at trial demonstrating that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Summary judgment serves the useful purpose of disposing of meretricious, pretended claims before the court and the parties become entrenched in frivolous litigation. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987). Thus, courts should not be reluctant to grant summary judgment in appropriate cases; indeed, summary judgment is mandated where appropriate. Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989); Mieri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985); United States v. Porter, 581 F.2d 698, 703 (8th Cir.1978); Estate of Detwiler v. Offenbecher, 728 F.Supp. 103, 134 (S.D.N.Y.1989); Burleson v. Illinois Farmers Ins., 725 F.Supp. 1489, 1490 (S.D.Ind. 1989). In a recent trilogy of decisions Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) the Supreme Court reaffirmed its endorsement of the pretrial resolution and summary disposition of baseless actions, emphasizing the mandatory nature of the Rule 56(c). In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Court held:
The Federal Rules of Civil Procedure have for almost 50 years authorized motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact. Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." ... Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a *572 jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.
Id. at 327, 106 S.Ct. at 2555 (citations omitted).
2) Statute of Limitations.
Mincey relies on § 1208(b) of the Postal Reorganization Act as the basis for his wrongful discharge/fair representation claim. 39 U.S.C.A. § 1208(b). Because § 1208(b) is the statutory analogue to § 301(a) of the Labor Management Relations Act, the Fourth Circuit has concluded that the six-month statute of limitations applicable to claims brought under § 301(a) is also applicable to claims brought under § 1208(b). Trent v. Bolger, 837 F.2d 657, 659 (4th Cir. 1988). The Defendants argue that Mincey's claim, which was filed over a year and a half after his resignation, clearly was not filed within the six-month limitations period. Mincey asserts that his claim was timely filed because his cause of action did not accrue until September 20, 1993, when he received written notice that the Union would not file a grievance on his behalf. He further contends that if his cause of action did accrue prior to September 20, 1993, the six-month statute of limitations should be equitably tolled due to his mental incompetency during the limitations period.
"A cause of action ordinarily accrues when [a] plaintiff could first have successfully maintained a suit based on that cause of action." Santos v. District Council of New York City, 619 F.2d 963, 968-69 (2d Cir.1980) (internal quotes omitted). An action by an employee alleging both that his employer violated the terms of the collective bargaining agreement and that the union breached its duty of fair representation is a hybrid action, "amounting to a direct challenge to the private settlement of disputes under [the collective bargaining agreement]." DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983) (alteration in original, internal quotes omitted). Such a claim requires proof of two elements: (1) that the employer violated the terms of the collective bargaining agreement; and (2) that the union breached its duty of fair representation by acting in "discriminatory, dishonest, arbitrary, or perfunctory fashion." Id. at 164, 103 S.Ct. at 2290. Both elements must be established in order to prevail against either party. Id. at 165, 103 S.Ct. at 2291. Accordingly, courts have uniformly held that the limitations period on such a claim does not commence merely upon an employer's violation of a collective bargaining agreement, but only when the employee also obtains actual or imputed knowledge of the conduct alleged to constitute a breach of the union's duty of fair representation. See, e.g., Flanigan v. Truck Drivers Local 671, 942 F.2d 824, 827 (2d Cir.1991).
Mincey maintains that the Union breached its duty of fair representation by failing to file a grievance challenging the Postal Services' refusal to allow him to withdraw his resignation. By his own admission in his deposition testimony, Mincey considered Porth's September 4, 1992 decision not to file a grievance on his behalf to be "final." Thus, Mincey was on notice as of that date that the Union had breached any duty it had to file a grievance on his behalf.
Porth's reiteration of his decision not to file a grievance on Mincey's behalf, memorialized in the letter of September 20, 1993, was purely the result of Mincey's renewed effort to convince the Union to file a grievance. Courts addressing similar factual scenarios have concluded that the statute of limitations begins to run on the date when the aggrieved employee first obtains actual or imputed knowledge of a decision by union officials not to act on the employee's behalf. See, e.g., Pantoja v. Holland Motor Exp., Inc., 965 F.2d 323, 326-29 (7th Cir.1992); Santos, 619 F.2d at 969.[1] To conclude otherwise *573 would be to allow an employee to perpetually postpone the accrual of a cause of action by continuing to request that the union act on the same complaint. Because the Postal Service allegedly breached the National Agreement prior to September 4, 1992 and Mincey received actual notice of Porth's decision not to pursue a grievance on that date, Mincey's cause of action accrued on that date. Therefore, his claim was not timely filed and is barred by the six-month statute of limitations unless the limitations period should be equitably tolled due to Mincey's alleged mental incompetency.
When a claim would otherwise be barred by a statute of limitations, the plaintiff bears the burden of proving that the limitations period should be equitably tolled. Crawford v. United States, 796 F.2d 924, 929 (7th Cir.1986). Traditionally, the doctrine of equitable tolling has been applied sparingly, see Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990), and the Court of Appeals for the Fourth Circuit has previously stated that the doctrine should be limited to circumstances in which a defendant has wrongfully acted to prevent a plaintiff from discovering the existence a cause of action, English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.1987).
Arguably, the decision of the Supreme Court in Irwin requires courts to broaden the range of factors that will be considered in deciding whether to grant equitable relief. See Irwin, 498 U.S. at 95-96, 111 S.Ct. at 457-58. However, there is no Supreme Court or Fourth Circuit precedent specifically addressing whether the mental incompetency of a plaintiff, resulting from no fault of the defendant, provides a basis for equitably tolling a federal limitations period. Those courts which have addressed this issue appear to be divided. See Nunnally v. MacCausland, 996 F.2d 1, 5 (1st Cir.1993) (concluding that mental incompetency may serve as a basis to equitably toll a federal statute of limitations under appropriate circumstances); Llewellyn v. Celanese Corp., 693 F.Supp. 369, 379 (W.D.N.C.1988) (same); Moody v. Bayliner Marine Corp., 664 F.Supp. 232, 235 (E.D.N.C.1987) (same). But see Harris v. Ford Motor Co., 635 F.Supp. 1472, 1474 (E.D.Mo.1986) (holding that mental disability not caused by the defendant will not equitably toll a federal statute of limitations); Steward v. Holiday Inn, (sic) Inc., 609 F.Supp. 1468, 1469 (E.D.La.1985) (same). Moreover, those courts which have concluded that federal limitations periods may be equitably tolled on the ground of mental incompetency appear to disagree on the proper standard to be applied in determining whether a particular plaintiff's mental disability warrants tolling of a limitations period. See Nunnally, 996 F.2d at 5 (concluding that equitable relief should be "denied if the plaintiff was able to engage in rational thought and deliberate decision-making sufficient to pursue his claim alone or through counsel"); Bassett v. Sterling Drug, Inc., 578 F.Supp. 1244, 1246-48 (S.D.Ohio 1984) (requiring that a plaintiff be adjudicated mentally incompetent or be institutionalized as a result of a diagnosed mental disability).
This court need not resolve either of these difficult issues because, applying the most lenient standards, the evidence viewed in the light most favorable to Mincey does not warrant tolling the limitations period through September 17, 1993 the date six months prior to the filing of Mincey's claim. In support of his contention that his mental incapacity warrants tolling of the limitations period, Mincey relies almost exclusively on the report of Dr. Morgan, his psychiatric expert. Dr. Morgan states in his report that:
For a few days after seeing his friend die Mr. Mincey was in a state of emotional shock technically called acute anxiety or, in diagnostic terms, an Adjustment Disorder. This was manifested by an excessive but unshakable fear that his life was in danger. This fear caused him to think and behave erratically. His decisions to quit his job on August 10, 1992, sell his house and leave town were signs of impaired reasoning and impulsive judgment caused by the unreasonable fear. With the capture of the killers this fear subsided and Mr. Mincey was able to think more rationally.
Dr. Morgan also notes that Mincey continues to suffer from mild depression and a generalized *574 anxiety disorder but concludes that despite these continuing psychological problems Mincey "should be able to handle his responsibilities as a mail carrier as well as ever." In short, Dr. Morgan's report merely is evidence that for "a few days" Mincey was unable to think clearly.
Mincey did subsequently suffer acute depression which culminated in a suicide attempt on October 7, 1992. However, there is no evidence to suggest he had not recovered sufficiently to pursue his claim by the time of his discharge from the Veterans' Hospital on November 13, 1992. Indeed, the evidence is to the contrary. On November 23, 1992, Mincey filed for unemployment compensation. When his claim was initially denied, Mincey pursued the matter on appeal. At the same time, Mincey also reinitiated contact with Porth, attempting to convince him that the Union should file a grievance on his behalf. In a diary of events that Mincey prepared for Porth on August 6, 1993, Mincey even acknowledged that he believed the "case will eventually end up in litigation." Therefore, Mincey was clearly competent to pursue his wrongful discharge/fair representation claim well before September 17, 1993 the date six months prior to when he filed this cause of action. Mincey's failure to exercise due diligence in filing this cause of action within the limitations period renders his claim untimely. Accordingly, the Defendants are entitled to summary judgment.
3) Elements of a Wrongful Discharge/Fair Representation Claim.
As an alternative basis for summary judgment, the Defendants argue that Mincey has failed to present evidence sufficient to create a genuine issue of material fact on either of the two elements of his claim. Specifically, they assert that Mincey has failed to identify any provision of the National Agreement that the Postal Service violated when it refused to reinstate him, and consequently, how the Union acted in a discriminatory, dishonest, arbitrary, or perfunctory manner when it refused to file a grievance challenging the denial of Mincey's request for reinstatement. With regard to the first element of his claim, Mincey responds with the assertion that Cribb violated Article 15 of the National Agreement when she refused to accept a grievance directly from him. With regard to the second element, Mincey maintains that the Union had a duty to file a grievance on his behalf irrespective of whether the Union believed that the grievance lacked merit.
The Article 15 provisions governing the initiation of a Step 1 grievance provide in pertinent part:
a. Any employee who feels aggrieved must discuss the grievance with the employee's immediate supervisor within fourteen (14) days of the date on which the employee or Union has learned or reasonably may have been expected to have learned of its cause. The employee may be accompanied by the steward or a Union representative, if the employee so desires.
b. If no resolution is reached as a result of such discussion, the supervisor shall render a decision orally stating the reasons for the decision.... Within five (5) days following the discussion of an unresolved grievance, a statement initiated by the grievant shall be signed by the grievant and supervisor signifying that the discussion constitutes the first step of the grievance procedure.
c. For other than disciplinary actions the Union may also initiate a grievance at Step 1 in accordance with the above, and may initiate a class grievance at Step 1 when the grievance concerns the complaint of more than one employee in the office. If the Union initiates a grievance, the steward or Union representative is the only party to meet with the appropriate supervisor.
Mincey contends that Cribb violated these provisions by indicating that she would not accept or sign any statement that he personally submitted as required in Step 1(b). The Postal Service maintains that Cribb was correct in stating that Mincey had to proceed through the Union because the grievance procedures only apply to "employees" of the Postal Service and Mincey was no longer an employee at the time he attempted to file a grievance.
*575 Even if the court were to assume that Cribb violated the grievance procedures set forth in Article 15, it is questionable whether such a violation would suffice to establish the first element of Mincey's wrongful discharge/fair representation claim. Mincey does not allege that he requested the Union to file a grievance challenging the Postal Services' failure to accept a grievance from him, nor does he seek an order from this court requiring the Postal Service to process his grievance in accordance with the above quoted procedures. Rather, he prays for reinstatement with backpay. In essence, Mincey's complaint is that the Postal Service wrongfully refused to reinstate him and that the Union breached its duty of fair representation by failing to challenge that action. Proof that the Postal Service failed to comply with the grievance procedures set forth in the National Agreement, standing alone, would not appear to establish that Mincey was wrongfully discharged.
The court, however, need not resolve whether Cribb violated Article 15 or whether such a violation would establish the first element of Mincey's wrongful discharge/fair representation claim. Mincey has not presented any evidence supporting his contention that the Union had a duty to file a grievance it believed to be meritless, see Amburgey v. Consolidation Coal Co., 923 F.2d 27, 30 (4th Cir.1991) (concluding that the UMW was not required to file a grievance it believed to be unwarranted), nor has he presented evidence to challenge the Union's conclusion that the Postal Service was not required to allow him to revoke his resignation. Mincey has not cited and the court has been unable to locate a provision in the National Agreement that would require the Postal Service to allow Mincey to withdraw his resignation. Title 5, part 715, § 202(b) of the Code of Federal Regulations, which Mincey also failed to cite, does require federal agencies to permit employees to withdraw resignations prior to their effective date unless the agency has a valid reason and explains that reason to the employee. However, it is clear from the undisputed facts that Mincey's resignation had become effective prior to the date he attempted to withdraw it. Therefore, 5 C.F.R. § 715.202(b) not only would not require the Postal Service to allow Mincey to withdraw his resignation, but it also would not require the Postal Service to give any reason for its refusal to do so. Consequently, Mincey has failed to establish a genuine issue of material fact as to whether the Union's actions were "grossly deficient" or "in reckless disregard" of his rights. Id. at 30. As a result, both the Postal Service and the Union are additionally entitled to summary judgment on the merits of Mincey's hybrid wrongful discharge/fair representation claim.
THEREFORE, IT IS ORDERED that the Defendants' motion for summary judgment be granted.
IT IS SO ORDERED.
NOTES
[1] The Seventh Circuit has concluded that the limitations period for filing a hybrid § 301(a) claim should be tolled while an employee pursues specific internal union remedies. Frandsen v. Brotherhood of Ry., Airline & S.S. Clerks, 782 F.2d 674, 681 (7th Cir.1986). Mincey, however, does not allege that he pursued any internal union remedies. Rather, he states that he continued to present the same request to various officials within the Union. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264348/ | 879 F.Supp. 1028 (1994)
Robert H. GLAVOR, Plaintiff,
v.
SHEARSON LEHMAN HUTTON, INC., Lehman Brothers, a division of Shearson Lehman Hutton, Inc., Equicor, Equicor Equitable HCA Corporation, Equicor Equitable Service Corporation as Administrator, The Equitable Life Assurance Society of the United States, Equicor, Inc., Cigna Companies, Defendants.
No. C-93-1648 DLJ.
United States District Court, N.D. California,
December 6, 1994.
*1029 *1030 Thomas F. Doyle, San Francisco, CA, for plaintiff.
Ben R. Suter, Kelly J. Moynihan, with Keesal, Young & Logan, San Francisco, CA, for defendants, Smith Barney Shearson, Inc. and Lehman Bros.
Norman La Force of the law offices of F. Ross Adkins, San Francisco, CA, for Equicor defendants.
ORDER
JENSEN, District Judge.
This is an action by plaintiff alleging ERISA violations. By Order dated August 12, 1994, the Court denied plaintiff's motion for reconsideration of the Court's April 8, 1994 Order, rejecting plaintiff's argument that the ERISA plan recognized by the Court is invalid. The Court further dismissed plaintiff's action against defendant Equicor, Inc. and the Equitable Life Assurance Society of the United States. On the four remaining causes of action, the parties' motions for summary judgment were deferred pending submission of briefs exclusively directed at the following issues: statute of limitations and assessment of statutory penalties under 29 U.S.C. § 1132(c). The briefs by plaintiff and defendant Smith Barney Shearson, Inc. were timely filed. The parties' motions for summary judgment are properly before the Court. Plaintiff also filed a motion to reconsider the August 12, 1994 Order and the April 8, 1994 Order. Plaintiff's motion was heard on October 12, 1994. Upon consideration of the submissions, the Court DENIES plaintiff's motion for reconsideration and GRANTS summary judgment in favor of defendant Smith Barney Shearson, Inc.
I. BACKGROUND
Plaintiff Robert Glavor was employed from 1977 to April 1, 1988 by defendant Lehman Brothers, a division of Shearson Lehman Hutton, Inc., now Smith Barney Shearson, Inc. ("Shearson"). Prior to 1988, Shearson obtained long-term disability coverage for plaintiff with INA Life Insurance Company of New York. The INA plan provided payments for mental and nervous disabilities in the amount of $10,000 per month until plaintiff's 65th birthday if the disability occurred before age sixty.
*1031 The INA policy coverage expired March 31, 1988, and Shearson obtained long-term disability coverage through Equicor, Inc. and the Equitable Life Assurance Society of the United States ("Equicor"), effective April 1, 1988. Under the Equicor policy, long-term disability payments for mental and nervous disabilities are subject to a maximum four-year benefit period. In those four years, the Equicor plan provides payments of $15,000 per month.
Plaintiff contends that the only notification he received prior to April 1, 1988 regarding a change in coverage was a pamphlet titled "1988 Group Health and Insurance Program Enhancements," which informed him that the new plan would increase his maximum monthly disability benefits to $15,000, but did not mention the four-year limit on benefits for mental and nervous disabilities. However, defendant Shearson asserts that, prior to April 1, 1988, it distributed to its employees a booklet entitled "Shearson Lehman Brothers Inc. 1988 Employee Benefits Program Highlights" which clearly set forth the four-year limitation on mental and nervous disabilities.
Plaintiff claims that he became disabled on April 1, 1988. On April 29, 1988, he filed a claim for long-term disability benefits, indicating that his disability was caused by hypertension, stress, and depression. Plaintiff alleges that shortly thereafter he orally requested a copy of his policy from Shearson, and subsequently wrote Shearson two letters, dated October 15, 1988 and December 12, 1988, requesting a copy of his long-term disability policy. He did not receive a copy of the policy. However, on December 20, 1988, Shearson told plaintiff by phone that his claim had been approved by Equicor, and that his disability check was being processed. In late December, plaintiff began receiving disability payments in the amount of $15,000 per month, calculated retroactively to October 1, 1988.
In January 1989, Equicor sent plaintiff a worksheet indicating that his benefit limit date was his 65th birthday in February 1996. The worksheet, was inconsistent with the terms of the Equicor policy in effect as of April 1, 1988.
Plaintiff alleges that he sent a request for a copy of his policy to Equicor on April 17, 1989, but again received no response. Equicor and Shearson issued the policy underlying the Equicor plan on May 19, 1989.
On September 24, 1992, Equicor notified plaintiff that he would receive no further disability benefits after October 1, 1992. Plaintiff alleges that on October 12, 1992, he responded to Equicor's decision by renewing his request for a copy of his policy. A copy of the request was also sent to Shearson.
Plaintiff formally appealed Equicor's termination of his benefits, and Equicor denied his appeal on November 24, 1992. On December 23, 1992, plaintiff's attorney requested in writing a copy of plaintiff's policy from CIGNA (Equicor). Equicor's letter in response suggested that he contact Shearson. On February 1, 1993, plaintiff's attorney requested a copy of the policy from Shearson. Plaintiff finally received a copy of the policy on June 23, 1993.
Plaintiff filed suit on March 26, 1993 in state court and the federal court action was commenced on May 4, 1993. His first amended complaint alleged four causes of action. The first two causes of action alleged that defendants Shearson and Equicor violated 29 U.S.C. § 1132(c) of ERISA by failing to provide information requested by plaintiff, and that they failed to publish a summary plan description or modifications thereto as required by 29 U.S.C. § 1024(a)(1)(A). The third and fourth causes of action charged Equicor with estoppel and negligent misrepresentation based on the erroneous worksheet it mailed to plaintiff.
Both sides brought motions for summary judgment. During the Court's hearing of the summary judgment motions, plaintiff apparently realized that as of April 1, 1988, a policy and summary plan description of plaintiff's long-term disability benefits which became effective on that date did not yet exist. Plaintiff also realized that ERISA does not provide a remedy for failure to have such information available. At plaintiff's request, the Court deferred ruling on the summary judgment motions, dismissed plaintiff's first amended complaint, and ordered plaintiff to move for leave to file a second amended complaint.
*1032 Plaintiff's second amended complaint alleged that at the time of his disability, he was covered by a "de facto" or informal policy incorporating the coverage to age sixty-five provision of the INA policy that terminated on March 31, 1988 and the $15,000 per month provision of the "1988 Group Health and Insurance Program Enhancements" pamphlet. Plaintiff alleged that under the de facto policy, defendants violated 29 U.S.C. § 1132(a)(1)(B) of ERISA by failing to provide him benefits due. Plaintiff also added defendant Shearson to his claims of promissory and equitable estoppel.
In the April 8, 1994 Order, the Court found: (1) in light of the formal policy eventually adopted, no informal plan existed; (2) since neither Equicor nor Shearson made any promises, there were no claims of promissory estoppel; and (3) because the provisions of the plan eventually adopted were not ambiguous regarding the four-year limit, there were no claims of equitable estoppel. The Court therefore denied with prejudice plaintiff's motion to amend his claims regarding the de facto policy and the promissory and equitable estoppel claims, and granted plaintiff's motion to amend his claim under section 1132(c) regarding defendants' alleged failure to respond to requests for information. The Court also permitted defendants to respond to the amended complaint through supplemental briefs to their pending motions for summary judgment.
On April 22, 1994, plaintiff filed a third amended complaint alleging six causes of action under section 1132(c) corresponding to six written requests for information, dated October 15, 1988, December 12, 1988, April 17, 1989, October 12, 1992, December 23, 1992, and February 1, 1993. Plaintiff and defendant Shearson moved for summary judgment, defendant Equicor moved to dismiss or for summary judgment, and plaintiff made a motion to reconsider the Court's April 8, 1994 Order.
By Order dated August 12, 1994, the Court denied plaintiff's motion for reconsideration. The Court further granted defendant Equicor's motion to dismiss the third and fifth causes of action against Equicor. Plaintiff filed an appeal of that dismissal on September 12, 1994.
Because the issue of the appropriate statute of limitations on the remaining four causes of action against Shearson was not sufficiently addressed by the parties, the Court deferred defendant Shearson's motion and plaintiff's motion for summary judgment pending submission of briefs exclusively directed at the issues of statute of limitations and assessment of statutory penalties under section 1132(c).
The parties timely submitted their supplemental briefs to their pending motions for summary judgment. Plaintiff also filed a motion for reconsideration of the Court's August 12, 1994 Order and April 8, 1994 Order.
II. DISCUSSION
A. Legal Standards
1. Rule 60(b)
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders. That rule permits a district court to relieve a party from an order or judgment on grounds of:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);.... The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Fed.R.Civ.P. 60(b).
Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir.1987). District Courts are authorized to reconsider interlocutory orders at any time prior to final judgment. Mateo v. M/S Kiso, 805 F.Supp. 761, 786 (N.D.Cal. 1991). To succeed in a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the Court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), aff'd in part and rev'd in part on other *1033 grounds, 828 F.2d 514 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988).
One major ground used to justify reconsideration of an order is a clear error of law by the Court or the need to prevent a "manifest injustice" from occurring. In order for a party to demonstrate clear error, the moving party's arguments cannot be the same as those made earlier. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985). If a party simply inadvertently failed to raise the arguments earlier, the arguments are deemed waived. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir.1985).
2. Summary Judgment
Federal Rule of Civil Procedure 56 states that summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[i]f the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S.Ct. 435, 93 L.Ed.2d 384 (1986).
Rule 56(c) requires this Court to enter summary judgment, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient: "[T]here must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). This Court thus applies to a motion for summary judgment the same standard as for a motion for directed verdict: "[W]hether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law." Id.
B. Analysis of Plaintiff's Motion for Reconsideration
Plaintiff essentially makes the same arguments as before: (1) that no legitimate ERISA plan limiting plaintiff's disability benefits to four years exists; (2) that the Equicor disability policy cannot be enforced against plaintiff; and (3) that the Court ignored plaintiff's evidence and argument regarding the liability of Equicor.
Plaintiff has filed this Rule 60(b) motion to prevent what he considers to be "manifest injustice" from occurring. Plaintiff has presented no newly discovered evidence or any element either of fact or of law which was not before the Court at the time the Court issued its April 8, 1994 Order recognizing the Equicor plan as valid and its August 12, 1994 Order denying plaintiff's motion for reconsideration and dismissing the claims against Equicor. Plaintiff has merely re-argued his previous motion and expressed his dissatisfaction with the Court's application of ERISA in this case.
Having reviewed the record and considered the parties' arguments, the Court is not persuaded that its decisions will work a "manifest injustice." Plaintiff asks, "Is it not a `manifest injustice' for defendants to repeatedly ignore and breach their fiduciary duty to the plaintiff, and their statutory obligations under ERISA when those breaches directly cause financial catastrophe to the plaintiff?" Defendants, however, had no fiduciary duty toward plaintiff under sections *1034 1109(a) and 1104(a) of ERISA. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 141-43, 105 S.Ct. 3085, 3090-91, 87 L.Ed.2d 96 (1985) (holding that sections 1109(a) and 1104(a) are designed to govern the fiduciary relationship of the plan administrator and the plan, not the relationship between the plan administrator and plan participants or beneficiaries). Because plaintiff has not offered new evidence or shown legal error or manifest injustice, plaintiff's motion for reconsideration is denied.
C. Analysis of the Parties' Motions for Summary Judgment
Having denied plaintiff's motion for reconsideration, the Court now turns to the parties' motions for summary judgment on the remaining claims. The remaining causes of action under section 1132(c) correspond to written requests for information dated October 15, 1988, December 12, 1988, October 12, 1992, and February 1, 1993.
1. Statute of Limitations
Plaintiff argues that the six-year statute of limitations in 29 U.S.C. § 1113(a)(1) governs because his section 1132(c) claims involve a breach of a fiduciary duty under section 1109(a). Plaintiff cited Russell v. Massachusetts Mutual Life Insurance Co., 722 F.2d 482, 488 (9th Cir.1983) for his proposition. However, that case was reversed by the Supreme Court specifically on this point in Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). The Supreme Court concluded that sections 1109(a) and 1104(a) are designed to govern the fiduciary relationship of the plan administrator and the plan, not the relationship between the plan administrator and plan participants or beneficiaries. Id. at 141-43, 105 S.Ct. at 3090-91. Thus, sections 1109(a) and 1104(a) do not provide for recovery of damages to plan beneficiaries or participants. Accordingly, the statute of limitations in section 1113(a)(1) clearly is inapplicable.
Several Courts of Appeals, including the Ninth Circuit, have found that section 1132 contains no statute of limitations, and that the district court must select a period from a state statute governing analogous causes of action. See Hawaii Carpenters Trust Funds v. Waiola Carpenter Shop, Inc., 823 F.2d 289, 297 (9th Cir.1987); Trustees for Alaska Laborers-Construction Indus. Health & Security Fund v. Ferrel, 812 F.2d 512, 516 (9th Cir.1987); Miles v. New York State Teamsters Conference, Etc., 698 F.2d 593, 598-99 (2d Cir.), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983); Jenkins v. Local 705 Int'l Brotherhood of Teamsters Pension Plan, 713 F.2d 247, 251-54 (7th Cir.1983). In order to choose the most analogous state statute of limitations, the court must examine the underlying nature of the federal claims as well as the federal policies involved. Jenkins, 713 F.2d at 251.
Because plaintiff mischaracterizes the nature of his claims as that against fiduciaries, he erroneously relies on FDIC v. McSweeney, 976 F.2d 532 (9th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2440, 124 L.Ed.2d 658 (1993) in concluding that a four-year statute of limitations pursuant to California Civil Procedure Code § 343 is applicable. In contrast, defendant Shearson argues that relief under 29 U.S.C. 1132(c) is punitive, not compensatory, in nature and thus California Civil Procedure Code § 340(1) providing for a one-year statute of limitations should govern:
Statutory penalty or forfeiture. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the state, except when the statute imposing it prescribes a different limitation; ....
Defendant Shearson's argument is persuasive. Case law establishes that "the penalties provisions of § 1132(c) were intended to induce compliance by plan administrators." Paris v. F. Korbel & Brothers, Inc., 751 F.Supp. 834, 839 (N.D.Cal.1990) (citing Porcellini v. Strassheim Printing Co., 578 F.Supp. 605, 612 (E.D.Pa.1983)). As noted by the court in Porcellini, "The statutory award under section 1132(c) is clearly punitive in nature. It is not intended to compensate a plan participant for injuries suffered as a result of an administrator's wrongful *1035 refusal or failure to provide documents which a participant or beneficiary is entitled to under ERISA." Porcellini, 578 F.Supp. at 613-14. Therefore, the nature of plaintiff's § 1132(c) claims is punitive in nature and the one-year statute of limitations provided by the analogous California cause of action is applicable.
Plaintiff's federal court action was commenced on May 4, 1993, following removal from state court. Thus, any waiting time penalty claim asserted by plaintiff based on conduct before May 4, 1992 is time-barred by the one-year statute of limitations. Accordingly, plaintiff's first and second claims for relief are time-barred as they are predicated on alleged requests made on October 15, 1988 and December 12, 1988, more than four years before plaintiff's federal court action was filed.[1]
2. Fourth and Sixth Causes of Action
Plaintiff's fourth cause of action based on the October 12, 1992 request has no factual basis and is subject to summary judgment, since plaintiff did not ask for a copy of the policy, thereby failing to make an appropriate request for information. See Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F.2d 618, 624 (7th Cir.1987); Wesley v. Monsanto Co., 710 F.2d 490, 491 (8th Cir.1983).
Furthermore, when plaintiff requested for information on February 1, 1993, he was not a "participant" under section 1132(c) at the time of the request because he was not one "who is or may become eligible to receive a benefit of any type from an employee benefit plan." 29 U.S.C. § 1002(7); see Kuntz v. Reese, 785 F.2d 1410, 1411 (9th Cir.), cert. denied, 479 U.S. 916, 107 S.Ct. 318, 93 L.Ed.2d 291 (1986). Thus, his sixth cause of action has no merit.
3. Statutory Penalty
Even if plaintiff's remaining causes of action were not decided against him, assessment of statutory penalties would be inappropriate. Whether to award monetary damages under section 1132(c) is a matter of discretion. 29 U.S.C. § 1132(c); Gillis v. Hoechst Celanese Corp., 4 F.3d 1137, 1148 (3d Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1369, 128 L.Ed.2d 46 (1994). To impose a penalty, some courts have required a plaintiff to show that his rights were harmed or otherwise prejudiced by the delay. Chambers v. European Am. Bank & Trust Co., 601 F.Supp. 630, 638-39 (E.D.N.Y.1985); Shlomchik v. Retirement Plan of Amalgamated Ins. Fund, 502 F.Supp. 240, 245 (E.D.Pa.1980). Other courts have found that a showing of harm or prejudice is not necessary to impose a penalty because the primary objective of the penalty provisions of section 1132(c) is to induce administrators to comply promptly with requests for information. Porcellini, 578 F.Supp. at 614. Under this rationale, the court should focus on the conduct of the administrator, such as whether he acted negligently or intentionally, or in bad faith. Id. Even if the court finds that prejudice is not a necessary showing, however, prejudice is still an appropriate consideration in the court's discretion. See id.
a. Bad Faith
Plaintiff alleges that defendant Shearson acted in bad faith. However, these allegations are merely conclusory since plaintiff has not offered any evidence of bad faith. On the contrary, the facts of this case establish that (1) Shearson distributed a booklet to its employees prior to April 1, 1988 advising them of the four-year limitation on mental and nervous disabilities; (2) Shearson never told plaintiff he would receive coverage of mental and nervous disabilities until he was 65; (3) Shearson timely responded, albeit *1036 orally, to plaintiff December 12, 1988 request for information; (4) plaintiff received all of the long-term benefits payable under the Equicor policy; and (5) plaintiff testified that Shearson's Manager of Group Insurance, Jeanne Rogers, with whom plaintiff dealt primarily, always treated him in a fair, honest, and forthright manner.
b. Harm or Prejudice
Plaintiff has alleged financial loss from Shearson's failure to provide information. Specifically, plaintiff asserts that reliance on a continuing income caused him to refuse favorable offers to sell property in Hawaii in 1990. However, when his disability income payments ceased unexpectedly in 1992, property values had already declined sharply, and he was forced to file bankruptcy under Chapter 11 because he had no income to pay property expenses.
Although plaintiff has alleged financial harm, he has not supplied evidence that his rights were prejudiced or otherwise harmed. Plaintiff speculates that he would have entered into successful multi-million dollar transactions had he known he would only receive $720,000 in total long-term disability payments. However, plaintiff's deposition establishes that the primary reason that plaintiff did not sell his property for $9,000,000 in 1990 was that he thought the property was going to continue to increase in value. He also admitted that the 1990 offer for his restaurant fell apart in 1990.
Moreover, plaintiff first began falling behind on his lease payments on one of his restaurants in 1991, before his benefits ran out. Thereafter, he failed to keep current with payroll taxes for restaurant employees, and the Internal Revenue Service imposed tax liens against his property. In short, while plaintiff blames his bankruptcy on Shearson, factual evidence and bankruptcy documents establish that his business woes commenced well before plaintiff received his final disability payment in September 1992.
In sum, not only would assessment of statutory penalties against defendant Shearson be inappropriate due to plaintiff's failure to show bad faith on the part of Shearson or offer evidence of prejudice or harm, but plaintiff's four remaining causes of action are subject to summary judgment against him on other grounds. His first and second causes of action are time-barred. The fourth cause of action has no factual basis because he did not make an appropriate request for information. The sixth cause of action has no merit because he was no longer a participant of the plan at the time he made the request for information.
III. CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1. Plaintiff's motion to reconsider and set aside orders is DENIED.
2. Summary judgment in favor of defendant Shearson is GRANTED.
3. The Clerk of the Court shall close the file.
IT IS SO ORDERED.
JUDGMENT
Pursuant to an Order filed by the Court on August 12, 1994 dismissing plaintiff's action against defendants Equicor, Inc. and the Equitable Life Assurance Society of the United States, and an Order filed by the Court on December 6th, 1994 denying plaintiff's motion for reconsideration and granting summary judgment in favor of defendants Smith Barney Shearson, Inc. and Shearson Lehman Brothers', the Court hereby enters FINAL JUDGMENT in favor of all defendants, Smith Barney Shearson, Inc. and Shearson Lehman Brothers', and defendants Equicor, Inc. and the Equitable Life Assurance Society of the United States, and against plaintiff Robert H. Glavor.
IT IS SO ADJUDGED.
NOTES
[1] The filing date in state court is March 26, 1993. Plaintiff's original filing in state court did not toll the statute of limitations of the federal action because the commencement of an action in a clearly inappropriate forum a court that lacks jurisdiction does not toll the statute of limitations. Shofer v. Hack Co., 970 F.2d 1316, 1319 (4th Cir.1992). Nevertheless, the result is the same in this case under California Civil Procedure Code § 340(1) whether the state court filing date of March 26, 1993 or the federal court filing date of May 4, 1993 is used. The Court also notes that, even if it were to apply the four-year statute of limitation suggested by plaintiff pursuant to California Civil Procedure Code § 343, the first and second claims for relief would still be time-barred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750637/ | 861 S.W.2d 386 (1993)
The STATE of Texas, Appellant,
v.
Helen GARCIA, Appellee.
No. 1603-92.
Court of Criminal Appeals of Texas, En Banc.
September 15, 1993.
*387 Daniel E. Hollifield, Fort Worth, for appellant.
Tim Curry, Dist. Atty., and Betty Marshall, Charles M. Mallin and Steven W. Conder, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Presiding Judge.
Appellee was charged by information with criminal trespass. See V.T.C.A., Penal Code, Section 30.05(a)(1). Appellee filed a motion to quash the information on the ground that it failed to state an offense under the Penal Code. The trial court granted appellee's motion and ordered the information set aside. On direct appeal, the Fort Worth Court of Appeals affirmed the dismissal of the information. State v. Garcia, 838 S.W.2d 830 (Tex.App.-Fort Worth 1992). We granted the State's petition for review to determine whether the Court of Appeals correctly held that an allegation of a specific complainant and the term "owner thereof," rather than the precise statutory term of "another," does not sufficiently state the offense of criminal trespass.[1]
For the reasons stated in State v. Kinsey, 861 S.W.2d 383 (Tex.Cr.App., this day delivered), we reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with our opinion in Kinsey v. State, supra.
CLINTON, J., concurs for reasons stated in his concurrence in State v. Kinsey, 861 S.W.2d 383 (Tex.Cr.App., 1993).
MEYERS, J., not participating.
NOTES
[1] Since this ground is dispositive of the case, we need not reach the merits of the State's second and third grounds for review. The State's fourth ground for review, that the Court of Appeals erred by improperly placing precedential value upon the refusal of discretionary review in State v. Staley, 814 S.W.2d 534 (Tex.App.-Houston [1st] 1991, pet. ref.), is correct. It is well settled that refusal of a petition for discretionary review by this Court has no precedential value. Sheffield v. State, 650 S.W.2d 813, 814 (Tex.Cr.App. 1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/881853/ | 789 P.2d 221 (1990)
CITY OF BILLINGS, Plaintiff and Respondent,
v.
Thomas LAYZELL, Defendant and Appellant.
No. 89-328.
Supreme Court of Montana.
Submitted on Briefs October 13, 1989.
Decided March 13, 1990.
Rehearing Denied May 1, 1990.
*222 Thomas Layzell, Missoula, pro se.
Russell Fagg, City Atty., Billings, for plaintiff and respondent.
TURNAGE, Chief Justice.
Thomas Layzell appeals his conviction and sentence following a jury trial in the Billings City Court and a de novo bench trial in the Thirteenth Judicial District Court, Yellowstone County, for failure to obey a stop sign and failure to obey a red light. We affirm in part and reverse in part.
ISSUES
Though the appellant's pro se brief is less than pellucid as to the issues on appeal, the following is a fair representation of the questions presented by his arguments.
1. Does the record contain sufficient evidence to uphold the appellant's conviction for disobeying a traffic control signal and disobeying a stop sign?
2. Did the City Court violate the appellant's right to freedom from excessive bail under U.S. Const. amend. VIII and Art. II, Sec. 22, Mont. Const., by knowingly setting bail in excess of appellant's ability to pay?
3. Did the City Court punish the appellant in violation of his due process and equal protection rights under U.S. Const. amend. XIV, § 1, and Art. II, Secs. 4 and 17, Mont. Const., by setting bail which guaranteed pretrial detention and a trial date for sixty-five days after arrest?
4. Did the City Court and District Court violate the indigent appellant's right to counsel under U.S. Const. amend. VI, and Art. II, Sec. 24, Mont. Const., by refusing to appoint counsel even though the appellant spent thirty days in pretrial detention?
5. Did the District Court err in failing to credit thirty days of pretrial detention against the appellant's sentence as required by § 46-18-403(2), MCA (1987)?
FACTS
Billings police ticketed Thomas Layzell on February 11, 1987, for failure to observe a traffic light. He refused to appear before Billings City Court Judge Donald E. Bjertness and was arrested on November 27. The City Court released Layzell with an order to appear on December 4 but he again failed to comply. On January 5, 1988, Billings police issued Layzell a second ticket for rolling through a stop sign. Layzell again refused to present himself to the court, and, on March 28, 1988, city police arrested him on warrants for both tickets.
As a result of his arrest, Layzell faced two months of incarceration in the Yellowstone County Detention Facility without *223 having been convicted of any crime and without representation by an attorney. On Layzell's arrest, the City Court set bail at $300, knowing that Layzell had only $47. The court then calendared trial for May 31, 1988, sixty-five days after arrest. The court denied Layzell's request for court-appointed counsel reasoning that the traffic offenses would not result in a jail term. The court also denied Layzell's several requests for reduced bail.
Layzell contends that the pretrial incarceration had a disastrous effect on his life. He states that he lost the only job he had been offered for a long while. As a result, he faced eviction from his apartment and confiscation of his personal property. Out of desperation he went on a hunger strike.
After thirty days in jail, Layzell obtained the help of Montana Legal Services and filed a writ of habeas corpus in state district court. During the hearing on April 26, the city prosecutor informed Layzell that his trial had been advanced thirty days to May 3. The habeas corpus court heard the parties' testimony and ordered Layzell's immediate release on his own recognizance.
Trial on the traffic tickets was held before a six-person, city court jury. The jury found Layzell guilty on both counts, and the court imposed the maximum fine of $300 plus $256 in court costs. Layzell appealed to the District Court for a de novo bench trial. The District Court denied his request for a court-appointed attorney and found him guilty on both counts. The court fined Layzell $100 on each count plus a $10 surcharge.
THE TRAFFIC TICKETS
The appellant disputes the testimony on which he was convicted. In criminal cases,
[o]ur standard of review when presented with a challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. McDonald (1987), 226 Mont. 208, 210, 734 P.2d 1216, 1217 (citation and quotations deleted).
The police officers who issued the traffic tickets testified that they were present during the violations and ticketed Layzell after observing his failure to stop for the traffic signal and stop sign. While Layzell may disagree with the officers' testimony, a rational trier of fact could have relied on their statements in finding him guilty.
EXCESSIVE BAIL
That bail may not be excessive is a fundamental, constitutional principle. U.S. Const. amend. VIII; Art. II, Sec. 22, Mont. Const. To insure that bail is not excessive, the Montana courts are constrained in setting bail by the eleven factors listed in § 46-9-301, MCA. Within these restrictions, the amount of bail is left to the sound discretion of the trial court and will be upheld if reasonable. State v. Lance (1986), 222 Mont. 92, 105, 721 P.2d 1258, 1267.
A $300 bail for these two traffic offenses is not excessive in the present circumstances; it equals the maximum allowable fine. See § 61-8-711(2), MCA. The record indicates that the City Court had sufficient reason to believe that Layzell would not appear for trial. Three times Layzell failed to appear in City Court to answer these same charges. Layzell had no substantial ties to the community; he owned no property, was unemployed, and had few friends and no relatives in Montana. When arrested he told the City Court in forceful language that he believed the charges were spurious.
PRETRIAL PUNISHMENT
The appellant is correct in asserting that the City Court may not set bail which effectively guarantees pretrial detention as a means of punishing an indigent defendant. The purpose of bail is to honor the presumption of innocence while ensuring the defendant's presence at trial. Section 46-9-101, MCA; Bell v. Wolfish (1979), 441 U.S. 520, 536-37, 99 S.Ct. 1861, *224 1872-73, 60 L.Ed.2d 447, 467; State v. Seybert (1987), 229 Mont. 183, 185, 745 P.2d 687, 688. To punish a defendant prior to an adjudication of guilt is a violation of his right to due process. Bell, 441 U.S. at 535, 99 S.Ct. at 1872, 60 L.Ed.2d at 466. To incarcerate a defendant solely because of his indigence is a violation of the defendant's right to equal protection. See Tate v. Short (1971), 401 U.S. 395, 398-99, 91 S.Ct. 668, 671, 28 L.Ed.2d 130, 133.
The courts have long recognized the tension between the criminal defendant's right not to be punished prior to an adjudication of guilt and the state's interest in assuring a criminal defendant's presence at trial. The framers of our constitutions attempted to balance these conflicting interests by providing a right to reasonable bail. That balance, however, becomes difficult to maintain when the rights of indigent defendants are placed on the scales. Justice William O. Douglas has spoken eloquently on this dilemma when considering the right to bail pending appeal:
This traditional right to freedom during trial and pending judicial review has to be squared with the possibility that the defendant may flee or hide himself. Bail is the device which we have borrowed to reconcile these conflicting interests. The purpose of bail is to insure the defendant's appearance and submission to the judgment of the court. It is assumed that the threat of forfeiture of one's goods will be an effective deterrent to the temptation to break the conditions of one's release.
But this theory is based on the assumption that a defendant has property. To continue to demand a substantial bond which the defendant is unable to secure raises considerable problems for the equal administration of the law. We have held that an indigent defendant is denied equal protection of the law if he is denied an appeal on equal terms with other defendants, solely because of his indigence. Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to have enough property to pledge for his freedom?
It would be unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom. Yet, in the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release. The wrong done by denying release is not limited to the denial of freedom alone. That denial may have other consequences. In the case of reversal, he will have served all or part of a sentence under an erroneous judgment. Imprisoned, a man may have no opportunity to investigate his case, to cooperate with his counsel, to earn the money that is still necessary for the fullest use of his right to appeal.
Bandy v. United States (1960), 81 S.Ct. 197, 197-98, 5 L.Ed.2d 218.
In some cases, Justice Douglas's "other consequences" may precipitate a spiraling burden on both the defendant and the state. The defendant who is held in pretrial detention because he is indigent loses any opportunity for gainful employment. Because he cannot earn money, he cannot pay his fines or his bills. He may lose whatever property he owns in inadequate attempts to satisfy creditors. When he is in jail, the state must bear the cost of maintenance and detention. When he is released, he may become an even greater burden on the state's social services. It is difficult to see how the state's interest in prosecuting two traffic tickets outweighs the burden imposed on the state and on the defendant by pretrial detention.
Though not addressing the issue of pretrial detention on failure to make bail, the United States Supreme Court has held that a state's interest in collecting traffic fines does not outweigh the equal protection rights of indigents. In Williams v. Illinois, the Supreme Court struck down the application of an Illinois statute which required indigents to work off fines for petty theft at $5.00 per day when the resulting incarceration exceeded the maximum permissible jail sentence under the state's petty theft statutes. Williams (1970), 399 *225 U.S. 235, 242, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586, 593-94. In Tate v. Short, the Court relied on Williams to strike down a Texas statute which required indigents to work off traffic fines through incarceration at a municipal prison farm even though the substantive traffic statutes did not allow jail sentences. Tate (1971), 401 U.S. 395, 397, 91 S.Ct. 668, 670, 28 L.Ed.2d 130, 133. The principle in Williams and Tate is the same; incarceration solely on the basis of indigence is unconstitutional. If equal protection for indigents applies to defendants convicted of a crime, it should also apply to indigents who have not been found guilty of anything. See Allen v. Burke (E.D.Va. June 4, 1981), No. 81-0040 Civ. 28, 1981 WL 15186.
The rule of Williams and Tate will not prevent incarceration of indigents in every case. A court may have no reasonable alternative to detaining defendants who cannot make bail. Williams and Tate, however, place a heavy burden on the court to search for the least oppressive means.
The present record indicates that City Court Judge Bjertness not only failed to look for the least oppressive means, but instead used the opportunity in a wholly inappropriate exercise of judicial power to punish the appellant. Having determined that Layzell would not make bail, the court set an excessively late trial date, in effect sentencing the appellant to a sixty-five-day jail term prior to conviction for any crime. We are aware of the busy calendars faced by the municipal courts. However, we find it incredible that in over two months the court could find no time in which to try these simple traffic violations. We note the remarkable coincidence between Layzell filing habeas corpus proceedings on April 22 and three days later the City Court's sudden discovery of an opening in its calendar. Even the one month Layzell actually spent in jail is inexcusably excessive.
We are aware that Layzell made the City Court's task difficult. He refused to appear for trial, provoked the court with verbal abuse, and generally resisted reasonable and expeditious settlement of the charges. Obstinance, however, is not a waiver of constitutional rights. If anything, it is a warning that increased vigilance is required. It most definitely is not justification for the use of judicial power to incarcerate the appellant at the court's personal whim.
We would overturn Layzell's conviction but for one reason; during the entire duration of his incarceration, Layzell held the keys to his own cell. At the habeas corpus hearing, Layzell testified that he never inquired into the possibility of satisfying his bail through any friend, relative or surety company. Lt. Ross, commander of the detention facility, testified that Layzell could have obtained a sufficient surety bond for $50. When arrested, Layzell had $47 and change. By failing to even attempt to procure the difference, Layzell assured his continued incarceration. In technical terms, Layzell lacks standing to challenge the constitutionality of the City Court's acts because his own unwillingness to borrow three dollars caused his injury.
The recalcitrance of both the appellant and the City Court transformed these two routine traffic tickets into significant constitutional questions. Layzell acted with the apparent intention of provoking the City Court into violating his constitutional rights. The court played into Layzell's hands by using pretrial detention as punishment. While we soundly condemn the court's actions, we will not find a constitutional violation when the appellant intentionally created and prolonged the incident.
APPOINTMENT OF COUNSEL
Montana law gives the courts discretion to appoint counsel for indigent, misdemeanor defendants when appointment would serve the interests of justice. Section 46-8-101(3), MCA. That discretion is restricted to defendants who will not lose their physical liberty. See State v. City Court of Billings (1982), 203 Mont. 443, 453, 662 P.2d 276, 281. When the statute under which the defendant is convicted provides for incarceration, refusal to appoint counsel precludes imposition of a jail sentence. Scott v. Illinois (1979), 440 U.S. *226 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383, 389.
Here the City Court and District Court denied a court-appointed attorney on the grounds that Layzell would not be sentenced to jail. The courts complied with this restriction by imposing only fines. Nothing in their decisions violates the restrictions under which appointment of counsel may be refused.
Layzell argues that the time he spent in jail awaiting trial deprived him of his liberty, thereby requiring court-appointed counsel. This Court and the United States Supreme Court have not yet recognized a right to counsel solely on the basis of pretrial incarceration. Because the appellant could have ended that incarceration, we decline to establish a new constitutional rule in this case.
CREDIT FOR TIME SERVED
Layzell also argues that the District Court's failure to credit his thirty days of pretrial detention against his $200 fine was a violation of his constitutional rights. The United States Supreme Court has not yet addressed this issue. The federal courts are greatly divided over whether, and in what circumstances, Williams and Tate give indigents a constitutional right to credit for pretrial detention. See Johnson v. Riveland (10th Cir.1988), 855 F.2d 1477, 1483-84 n. 7 (collecting cases). We do not find it necessary to decide this difficult issue in the present case. The District Court's failure to comply with the Montana statutes is sufficient to reverse the appellant's sentence.
The Montana statute in effect at the time provided:
Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $10 for each day so incarcerated prior to conviction, except that in no case shall the amount so allowed or credited exceed the amount of the fine.
Section 46-18-403(2), MCA (1987) (emphasis added).
The statutory language is mandatory. It requires the District Court to give credit for pretrial detention accrued because the defendant did not make bail. Layzell's thirty-day pretrial detention is more than sufficient to discharge his fine.
We affirm the traffic convictions, reverse the sentence, and remand for resentencing in accordance with this opinion.
HUNT, SHEEHY, McDONOUGH and BARZ, JJ., concur. | 01-03-2023 | 06-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345831/ | 789 P.2d 677 (1990)
101 Or.App. 86
STATE of Oregon, Appellant,
v.
Lawrence William MOYLETT, Respondent.
D890539M; CA A60930.
Court of Appeals of Oregon.
Argued and Submitted January 29, 1990.
Decided March 28, 1990.
Reconsideration Denied June 6, 1990.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause, for appellant. With him on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
William Uhle, Portland, argued the cause and filed the brief, for respondent.
Before GRABER, P.J., and RIGGS and EDMONDS, JJ.
GRABER, Presiding Judge.
Defendant is charged with driving under the influence of intoxicants, ORS 813.010, assault in the fourth degree, ORS 163.160, and criminal mischief in the second degree, ORS 164.354, after an accident in which he was involved. At the investigating officer's request, hospital personnel drew three samples of defendant's blood, the first before the officer obtained a search warrant and the second and third after he had done so. The trial court suppressed evidence of defendant's blood alcohol content derived from all of the samples, and the state appeals. We affirm as to the first sample and reverse as to the second and third.
*678 On the evening of December 23, 1988, defendant drove his vehicle into the rear end of a pickup truck that had stopped to make a left turn. Officer Parks came to the collision scene at 8:18 p.m. and noted that defendant had a strong odor of alcohol on his breath, bloodshot and watery eyes, and slow and slurred speech. Defendant told Parks that he had had three gin and tonics, beginning about 3:30 that afternoon. Defendant was then driven to a hospital in Hillsboro for examination and treatment. Parks again interviewed defendant at the hospital, beginning at 9:15 p.m. The interview lasted about a half hour; during it, defendant refused to consent to giving a blood sample for a blood alcohol test. Parks, nevertheless, asked hospital personnel to draw a sample, which they did at 10:06 p.m.
After Parks obtained the first blood sample, his supervisor told him that the District Attorney's office recommended that he get a warrant for the samples. Parks then handwrote an affidavit, took it to a judge, and received a handwritten warrant at 11:03 p.m. At 11:10 p.m. and 12:08 a.m., hospital personnel drew two more samples pursuant to the warrant. Parks' affidavit reads:
"I, Bruce Parks at [sic] police officer with the City of Hillsboro, Washington County of [sic] Oregon.
"I have been a police officer for nine year [sic], during which time I have received traffic investigation classes and have investigation [sic] over 50 accident scenes.
"On Friday Dec. 23rd 1988 at about 2018 hrs, I came upon a traffic accident at the intersection of T.V. Hwy and Shute Park Plaza. At the scene I found that a passenger in one of the involved vehicles was in great pain and complained of back and neck injures [sic].
"During my investigation I learned that a vehicle driven by Jose Tavera was stopped in a turn lane and another vehicle driven by Lawrence Moylett ran into the rear of Tavera's vehicle injuring his wife Beverly Tavera.
"During my contact with Moylett at the scene, I noticed he had a strong odor of alcoholic beverage on his breath. Moylett later told me [he] had three Gin and tonics at the B.J.'s resturant [sic] before the accident.
"At this time, I believe Mr. Moylett is under the Influence and driving a motor vehicle involved in an injury accident. Mr. Moylett at this time is refusing to submitt [sic] to a blood alcohol draw.
"I hear by [sic] request permission to search Lawrence Moylett's blood for his blood alcohol content for D.U.I.I. and assault with a motor vehicle."
Defendant moved to suppress the evidence of the three blood samples. He argued that there was no probable cause, warrant, or exigent circumstances for the first sample and that the warrant for the second and third was invalid, because the affidavit did not establish probable cause to believe that defendant had committed any crime. The trial court granted the motions.
We first consider the admissibility of the sample taken before Parks obtained the warrant. At the time that he asked for the sample, Parks' knowledge of the circumstances of the accident and of defendant's appearance and demeanor gave him probable cause to believe that defendant had been driving while under the influence of intoxicants and that he had committed assault in the fourth degree. The question is whether there were exigent circumstances that excused the failure to obtain a warrant.
In State v. Milligan, 304 Or. 659, 748 P.2d 130 (1988), the Supreme Court held that the fact that alcohol dissipates from the blood at some significant rate may provide exigent circumstances that would justify drawing a sample without first obtaining a warrant. It held that the "evidence established that exigent circumstances existed justifying the warrantless extraction of at least the initial blood sample, so long as the extraction was made promptly after the suspect was taken to a place where it could be made." 304 Or. at 666, 748 P.2d 130. (Emphasis supplied.) That holding does not mean that exigent *679 circumstances exist in every case where blood alcohol dissipation might be important. The state argues that Milligan and State v. Langevin, 304 Or. 674, 748 P.2d 139 (1988), create a per se exigency rule for the extraction of blood samples from persons whom the police have probable cause to arrest for DUII. We do not read Milligan and Langevin to establish that rule.
Here, defendant arrived at the hospital by 9:15 p.m., when Parks began questioning him. However, Parks did not obtain the first sample until 10:06 p.m. When Parks decided to get a search warrant, it took him about 45 minutes. That was less than the time between the start of the interview with defendant and the drawing of the first sample. Parks testified that he had never before obtained a search warrant in less than two or three hours, and the court found that he did not know that he could obtain a warrant in the way that he did until his supervisor explained how. However, the fact that he did obtain the warrant in 45 minutes shows that it was possible to do so in a relatively short time. "Police officers cannot create their own exigencies by failing to familiarize themselves with constitutionally mandated procedures." State v. Roberts, 75 Or. App. 292, 296, 706 P.2d 564 (1985). The extraction of defendant's blood was not made promptly after he was taken to a place where it could be done, and Parks had an opportunity in the time that actually elapsed to obtain a warrant. On this record, there were no exigent circumstances that excused his failure. The trial court correctly suppressed evidence of the first test.
The second and third tests raise a different issue: whether Parks' affidavit supports a finding of probable cause to believe that defendant was driving under the influence. The affidavit does not show the precision that a trained lawyer with unlimited time could have given it. It did not need to. What it does show, when read in a common sense manner, is that Parks is an officer with experience in investigating traffic accidents, that defendant had driven into the rear end of a stationary vehicle with enough force to injure one of the people in it, and that defendant had a strong odor of alcohol on his breath and admitted that he had been drinking. The nature of the accident could lead the judge to infer that defendant had been driving carelessly, and the alcohol odor and the admission of drinking allowed the judge to infer that defendant's carelessness was the result of his being under the influence of the alcohol. Although Parks did not state how close in time defendant's drinking was to the accident, the judge could infer from the continuing strong odor of alcohol that it was recent enough to have affected defendant's driving. The warrant was valid, and the trial court erred in suppressing the second and third tests.
Suppression of first test affirmed; suppression of second and third tests reversed; remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345834/ | 57 Wn. App. 636 (1990)
789 P.2d 333
THE STATE OF WASHINGTON, Respondent,
v.
ANDRE FLOWERS, Appellant.
No. 23162-6-I.
The Court of Appeals of Washington, Division One.
April 23, 1990.
*637 Jeff Ellis of Seattle-King County Public Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and Peter Goldman, Deputy, for respondent.
SWANSON, J.
Andre Flowers appeals from the judgment and sentence entered following his conviction for first degree robbery. He contends that the trial court erred in failing to suppress the fruits of an allegedly illegal search and seizure.
The trial court's unchallenged findings of fact, entered following the suppression hearing, establish the following sequence of events. At about 5 p.m. on July 4, 1988, Grant Hensel, a restaurant employee, was robbed at gunpoint while making a deposit in the night depository of a bank at the Aurora Village mall near 205th and Aurora Avenue North in King County. After the robbery, Hensel returned to the restaurant and contacted the police.
At about 5:15 p.m. the same day, Seattle Police Officer Russell Weklych was on routine patrol and stopped to purchase yogurt at the Oaktree Village mall near 103rd Avenue and Aurora Avenue North in Seattle. Officer Weklych heard a radio report of an armed robbery that had just occurred at Aurora Village. The Oaktree Village mall is approximately 6 miles directly south of Aurora Village on Aurora Avenue. The suspects were described as:
a black male in his 30's and a black female driving a black Volkswagen Rabbit eastbound on 205th from Aurora Village. The male had a short barrelled handgun. Shots had been fired during the robbery.
Finding of fact 5.
Just before stopping at the mall, Officer Weklych had been driving north on Aurora past the Geisha Inn Motel, located at 9613 Aurora Avenue North when he saw a "black *638 Volkswagen-type car" pull into the motel. The car caught Officer Weklych's attention because it was moving "a little bit fast and a little bit erratically ...". Officer Weklych, who believed that the car had two black occupants, did not stop.
After hearing the robbery report, Officer Weklych returned to the Geisha Inn to determine if the car he had seen matched the suspect vehicle. Upon returning, Officer Weklych found that "the car generally fit the description," but he did not approach the vehicle to examine it closely. Weklych went into the motel office to talk with the clerk. The clerk told Weklych that:
the couple was acting nervous and excited. They looked around, out the door and window of the office several times. The black male who was approximately 5'9", 180 pounds with short curly hair per the clerk showed a large sum of money in mostly small bills. The black female who had been driving was wearing sun glasses. The couple checked into room 6 of the motel.
Finding of fact 9.
Based upon the information he had received so far, Officer Weklych believed that the persons in room 6 might be the robbery suspects and decided to investigate further. Officer Weklych's intention was to confirm or eliminate the occupants of room 6 as suspects. An updated radio report provided some additional information about the suspects:
the male, in his 30's was around 6 feet tall, weighed 180 lbs. and wore sunglasses. The car was a newer black Rabbit or BMW-type car with silver writing on the rear identifying the make of the car. The female was driving. She also wore sunglasses.
Finding of fact 8. At Officer Weklych's request, several backup units arrived at the scene.
Officer Weklych first briefed the other officers about the circumstances and then decided to use a ruse to call one of the suspects out of the room. No attempt was made to examine the black car further. At least three other officers took up positions around the entrance to room 6. Officer Weklych then called room 6 from the motel office and told the woman who answered that additional information was *639 needed for registration. Shortly thereafter, a woman, subsequently identified as Julieanna Leasure, exited room 6.
As she walked toward the office,
Ms. Leasure saw Officer Weklych (and perhaps other officers who had then arrived) and yelled "Police" towards her motel room. The officers explained to her that a robbery had recently occurred and that the suspects' description generally matched her car, her friend and her. The officers further explained that they were trying to eliminate her as a suspect or determine if they should investigate further. Ms. Leasure said "I just lent the car out."
Finding of fact 11. Officer Weklych described Ms. Leasure as nervous, agitated, and frightened.
Immediately after Ms. Leasure had called out "police," appellant Flowers opened up the curtains and observed Seattle Police Officer Dave Emerick. Officer Emerick, who had drawn his gun, ordered Flowers out of the room. Flowers was ordered down on his knees and told to interlace his fingers behind his head. Emerick and at least two other officers approached Flowers with guns drawn. Officer Jeffrey Lobb "held Mr. Flowers' fingers with his hand, placed a leg between Mr. Flowers' knees and placed a knee on Mr. Flowers' spine to restrain him." Finding of fact 12.
At this point, Officer Michael Thomas made a brief "sweep" through the room to ensure that no one else was inside. No evidence was obtained during the "sweep." Outside, Officer Emerick told Flowers about the robbery investigation and asked for permission to search the room and car. According to Officer Emerick, Flowers replied, "Sure, go ahead."
The resulting search turned up several weapons and other items of evidence associated with the robbery. Following the search, Flowers was formally arrested and read his Miranda rights. Grant Hensel, the robbery victim, was brought to the Geisha Inn within 20 to 60 minutes of the robbery for a showup and identified Flowers and the black car.
Following the suppression hearing, the trial court concluded that, although the officers did not have probable *640 cause to arrest Flowers initially, there was "reasonable suspicion" that Flowers was involved in the robbery. The trial court further concluded that it was reasonable, given the nature of the crime, the use of weapons, and the officers' concern for their safety, for officers to order Flowers out of the room and detain him. The trial court also found that Flowers' consent to search was freely and voluntarily given.
Flowers subsequently waived his right to a jury trial, and the case was submitted to the trial court on the basis of stipulated facts. Flowers was found guilty as charged, and this appeal ensued.
Flowers first contends that by ordering him out of his room at gunpoint, the officers escalated the encounter into a warrantless "entry" and arrest that were not supported by probable cause or exigent circumstances. The primary focus of this argument therefore is the point in time when Ms. Leasure exited room 6 of the Geisha Inn, observed a police officer, and yelled "police" back toward the room. Almost immediately, appellant Flowers looked out through the curtains and saw the police, who were pointing their guns toward the room. The officers then ordered Flowers out of the room and onto his knees. Virtually simultaneously with Flowers' emergence from the room, Officer Weklych called Ms. Leasure over to him and told her that he was investigating her and her companion as robbery suspects. In response, Ms. Leasure told the officer that "I just lent the car out." Up to this point in time, there is no contention that the officers' actions were illegal or inappropriate for the developing situation. Nor does Flowers seriously dispute that the officers had at least a "reasonable suspicion" sufficient to support a Terry investigatory detention.
[1] We note initially that we rest our decision on a different basis than did the trial court, which determined that the officers did not have probable cause to arrest Flowers when he was ordered out of the motel room but that the seizure was nonetheless supported by "reasonable suspicion." See, e.g., State v. Collins, 110 Wn.2d 253, 258 n. 2, *641 751 P.2d 837 (1988) (trial court decision may be affirmed on alternative theory, even if not relied upon below, when established by pleadings and supported by proof); State v. Davis, 29 Wn. App. 691, 697 n. 2, 630 P.2d 938, 17 A.L.R.4th 53, review denied, 96 Wn.2d 1013 (1981). We conclude that the unchallenged findings of fact, as well as the record, establish that the officers had probable cause to arrest Flowers. For purposes of this appeal we assume, without deciding, that ordering Flowers out of his motel room at gunpoint was constitutionally equivalent to a warrantless "entry" and arrest in Flowers' home.
[2, 3] Probable cause exists
where the facts and circumstances within the arresting officer's knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in a belief that an offense has been committed.
State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986). This determination rests
on the totality of facts and circumstances within the officer's knowledge at the time of the arrest. The standard of reasonableness to be applied takes into consideration the special experience and expertise of the arresting officer.
(Citations omitted.) State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979). While the findings of the trial court following a suppression hearing are of great significance, the constitutional rights at issue necessitate that we undertake an independent evaluation of the record. State v. Daugherty, 94 Wn.2d 263, 269, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958 (1981); State v. Dresker, 39 Wn. App. 136, 139-40, 692 P.2d 846 (1984).
The trial court's unchallenged findings permit consideration of the following circumstances on the question of probable cause: Shortly before hearing the robbery report, Officer Weklych noticed a "black Volkswagen-type" car drive somewhat erratically into the Geisha Inn parking lot. The initial robbery report indicated only that the suspects were a black male and black female and were last seen driving a "black Volkswagen Rabbit" eastbound on 205th. Although the Geisha Inn is located several miles south of *642 the robbery scene, Aurora Avenue is a "main thorough-fare."
A subsequent radio report indicated that the suspect car was "a newer black Rabbit or BMW-type car," that both occupants were wearing sunglasses, and that the female was driving. From the motel clerk, Officer Weklych learned that the occupants of the black car had been nervous and excited, looking out of the door and window several times. The female, who had been driving the car, was wearing sunglasses. The man, whose weight corresponded to the broadcast description, "showed a large sum of money in mostly small bills."
Finally, when Ms. Leasure emerged from room 6 and saw one of the officers, she immediately turned around and shouted "police," a highly suspicious circumstance. After listening to Officer Weklych's explanation of the investigation, Ms. Leasure stated, "I just lent the car out," a response that, at the very least, indicated the possible involvement of the car in the robbery.
We conclude that when all of these circumstances, including the proximity of the encounter in time and location to the robbery scene, the suspects' nervousness while checking in, and the correspondence of certain details, i.e., sex and race of the suspects, sunglasses, and wad of bills, are viewed in their entirety, there was substantially more here than a "bare suspicion" and enough to warrant "a person of reasonable caution" in believing that Flowers had committed the crime.
Our conclusion that there was probable cause, however, does not end the inquiry. The propriety of the warrantless "entry" and arrest is a separate question. See State v. Terrovona, supra at 644. Generally, the Fourth Amendment "prohibits police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest without exigent circumstances." (Italics ours.) Seattle v. Altschuler, 53 Wn. App. 317, 319, 766 P.2d 518 (1989) (hot pursuit or fleeing suspect did not constitute exigent circumstances justifying warrantless entry into *643 home to make an arrest for traffic violation); see also Payton v. New York, 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371 (1980); State v. Machado, 54 Wn. App. 771, 775 P.2d 997 (1989) (warrantless entry into apartment to arrest robbery suspect justified by exigent circumstances), review denied, 114 Wn.2d 1009 (1990); see generally Utter, Survey of Washington Search and Seizure Law: 1988 Update, 11 U. Puget Sound L. Rev. 411, 506 (1988).
[4] In determining whether exigent circumstances justify a warrantless entry and arrest of a felony suspect, the courts in this state have identified a number of relevant factors:
(1) a grave offense, particularly a crime of violence, is involved; (2) the suspect is reasonably believed to be armed; (3) there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) the suspect is likely to escape if not swiftly apprehended; and (6) the entry is made peaceably.
State v. Terrovona, supra at 644 (citing Dorman v. United States, 435 F.2d 385 (D.C. Cir.1970)). The Dorman factors are not exclusive and have been supplemented with additional factors:
(1) hot pursuit; (2) fleeing suspect; (3) danger to arresting officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the evidence.
Terrovona, at 644 (citing State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983)); see also Seattle v. Altschuler, supra at 320. Yet another "factor" is whether the arrest is planned or unplanned. See generally 2 W. LaFave, Search and Seizure § 6.1(f), at 599 (2d ed. 1987).
Here, the exigent circumstances justified the warrantless "entry." Robbery is a "grave offense" and the police officers reasonably believed the suspects to be armed and willing to use a gun. See State v. Machado, supra at 776. The rapidly unfolding situation presented a potential danger to the investigating officers, the suspects, and the public. Once Flowers had been alerted to the officers' presence, the possibility that some evidence might be destroyed was *644 increased. The "entry" here was peaceable and less intrusive than had the police physically entered the room to arrest the suspect. Finally, the officers did not intend to arrest the occupants of room 6 when the investigation began. See State v. Machado, supra. The fact that some of the factors are not present in an individual case is not controlling.
In summary, given the presence of numerous exigent circumstances, the police "properly chose to defuse the potentially dangerous situation by entering immediately." State v. Machado, supra at 777. While the police may not manufacture their own exigent circumstances in order to justify a warrantless entry and arrest, this was not the case here. Cf. State v. Hall, 53 Wn. App. 296, 302, 766 P.2d 512 (possibility that someone in jail and within police control might telephone the defendant did not constitute exigent circumstances justifying warrantless entry to secure home against destruction of evidence), review denied, 112 Wn.2d 1016 (1989). Because we conclude that probable cause and exigent circumstances justified the trial court's decision, we need not determine whether the officers' actions were also justified by reasonable suspicion and exigent circumstances.
Flowers next contends that even if the initial detention was valid, the trial court nonetheless erred in finding that he voluntarily and knowingly consented to the search of his room. The trial court found as follows on the consent issue:
Officer Emerick asked Mr. Flowers if the officers could look through the room and the car. Mr. Flowers said, "Sure, go ahead." At this time, Mr. Flowers had been told the reason for the stop. He was still on the ground, but Officer Lobb had removed his knee from Mr. Flowers' spine. He was still holding Mr. Flowers' fingers. Officer Emerick relayed the consent to the other officers who then searched the room. Mr. Flowers did not react to Officer Emerick's statement that they had consent to search.
Finding of fact B(2).
[5] A warrantless search is constitutional when based on valid consent. In order to be valid, consent must, among other things, be voluntary. State v. Shoemaker, 85 Wn.2d *645 207, 210, 533 P.2d 123 (1975). Whether consent is freely given is a factual question that depends on the totality of the circumstances; the State has the burden of showing by "clear and convincing evidence that the consent was informed and given freely and voluntarily." State v. Mak, 105 Wn.2d 692, 713, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). Factors generally recognized as bearing on the issue of consent include:
(1) whether Miranda warnings had been given prior to obtaining consent; (2) the degree of education and intelligence of the consenting person; and (3) whether the consenting person had been advised of his right not to consent.
State v. Shoemaker, supra at 212. "These factors should be judiciously balanced against each other with no particular factor necessarily being dispositive." Shoemaker, at 212. Additional factors that may affect the voluntariness of consent include express or implied claims of authority to search, prior illegal police action, prior cooperation or refusal to cooperate, and police deception as to identity or purpose. See Utter, Survey of Washington Search and Seizure Law: 1988 Update, supra at 551-56.
The circumstances surrounding the oral consent appear, at first blush, coercive. Appellant was ordered out of his room at gunpoint by several officers. He was then ordered to kneel with his hands behind his head; one officer "placed a leg between Mr. Flowers' knees and placed a knee on Mr. Flowers' spine to restrain him." Shortly after being "contained," Flowers was then asked for permission to search the room and car. He was not given his Miranda rights at this time, nor was he advised of his right to withhold consent. Individually, factors such as a failure to give Miranda warnings or to advise a suspect of the right to withhold consent, custodial restraint, and the display of weapons by several police officers, do not necessarily preclude a finding of voluntariness. The presence of all of these factors, however, is significant and indicative of coercion. See, e.g., State v. Werth, 18 Wn. App. 530, 571 P.2d 941 (1977) (defendant's verbal consent, given after she was ordered out *646 of house at gunpoint, not advised of right to withhold consent, and 2 days after police had illegally searched the house, was not voluntary), review denied, 90 Wn.2d 1010 (1978). But cf. State v. Rodriguez, 20 Wn. App. 876, 582 P.2d 904 (1978) (consent to search voluntary where given after defendant arrested and handcuffed, no Miranda warnings given, defendant not advised of right to refuse consent, and defendant denied giving oral consent).
The coercive factors present here must be viewed in light of the other circumstances. Flowers took the stand at the suppression hearing and acknowledged that he knew what "legal consent to search" meant and that no one had threatened to get a search warrant if he did not consent. It is evident from Flowers' testimony that he is neither of low intelligence nor totally naive in criminal matters.[1] Flowers made no contention that he felt coerced by the encounter with police officers or that he did not understand he could withhold consent. See State v. Rodriguez, supra at 880 (request for permission to search carries with it implication that person can withhold permission). Rather, he steadfastly maintained that no one had asked for his consent and that the officers who had so testified were lying. Consequently, the trial court's resolution of the consent issue rested heavily on an assessment of the parties' credibility, a factor resolved in favor of the police officers. See State v. Rodriguez, supra at 879.
After reviewing the entire record, including Flowers' testimony and the unchallenged finding that Flowers gave his oral consent after being informed of the nature of the investigation, we can find no indication that Flowers' consent was the product of coercion or duress or that his "will *647 was overborne." We agree with the trial court that the State has satisfied its burden of demonstrating the consent was free and voluntary.
State v. Werth, supra, relied upon by appellant, is distinguishable. In Werth, police officers illegally entered the defendant's home to search for a prison escapee. Two days later, the officers returned and ordered the defendant out of her home. The defendant saw at least one officer with a weapon and claimed that she was frightened. The testimony was disputed as to whether the defendant was asked and had given oral consent to search. The trial court ruled that the first search was illegal, but that the defendant had voluntarily consented to the second search.
We reversed, holding that even if the defendant had verbalized her consent, the State had failed to sustain its burden of demonstrating that the consent resulted from the defendant's free choice. Werth, at 535. In reaching this decision, we cited as coercive factors the custodial restraint, show of force or authority by several officers, a failure to inform the defendant of the right to refuse consent, and of particular significance the prior illegal search of the defendant's home.
Several of the coercive factors relied upon in Werth are also present here. Unlike Werth, however, there was no illegal search preceding the consent. Moreover, in the instant case, appellant has not challenged the trial court's findings that the officers explained to him the purpose of the investigation and that he was asked for and gave his oral consent to search.
In light of Flowers' testimony at the suppression hearing and the unchallenged findings, there is no basis in this record for concluding, as did the court in Werth, that there was "little question that, in [the defendant's] own mind, *648 police were going to search her home with or without her consent." Werth, at 535.
Judgment affirmed.
COLEMAN, C.J., and PEKELIS, J., concur.
Review denied at 115 Wn.2d 1009 (1990).
NOTES
[1] At one point, when questioning involved his reaction to the officers' explanation of the investigation, Flowers replied, "I plead the Fifth to that question." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264293/ | 14 Cal.App.4th 1186 (1993)
18 Cal. Rptr.2d 287
ROBERT J. REID et al., Plaintiffs, Cross-defendants and Appellants,
v.
HERBERT BALTER et al., Defendants, Cross-complainants and Appellants.
Docket No. B058279.
Court of Appeals of California, Second District, Division Three.
April 6, 1993.
*1188 COUNSEL
Joel F. Tamraz for Defendants, Cross-complainants and Appellants.
Maynard J. Klein for Plaintiffs, Cross-defendants and Appellants.
OPINION
CROSKEY, J.
Defendants Maureen and Herbert Balter (defendants) appeal from a judgment entered in favor of plaintiffs Lorene and Robert Reid (plaintiffs). Following a jury trial on the merits, defendants challenge an order which vacated a prior order of dismissal that had been entered after plaintiffs had failed to appear at a scheduled pretrial status conference. Defendants also challenge a subsequent order which denied their motion for discretionary dismissal for failure to timely prosecute. Plaintiffs have cross-appealed; they challenge the amount of prejudgment interest they were awarded.
In rejecting the defendants' contentions, we conclude that (1) the challenge to the order vacating the dismissal is without merit, (2) defendants *1189 have failed to show they were prejudiced at trial by the order which denied their motion for discretionary dismissal, (3) defendants should have challenged the denial of their motion for dismissal by immediately petitioning the Court of Appeal for a writ of mandate rather than waiting to challenge it on appeal after the case was tried and judgment entered, and (4) plaintiffs are entitled to prejudgment interest based on a different rate than the one used by the court. We therefore affirm the judgment in part and reverse it in part.
PROCEDURAL HISTORY
Plaintiffs filed this action on May 16, 1986, alleging that pursuant to a contract for sale of real property (consisting of certain rental units), defendants had given them a promissory note for $50,000 and thereafter refused to make payments on the note. Plaintiffs sought damages and enforcement of a vendor's lien.
Defendants answered the complaint and filed a cross-complaint against plaintiffs. In the cross-complaint, defendants alleged that when plaintiffs sold them their interest in the rental property, plaintiffs left defendants with unpaid bills which defendants had to pay. Defendants alleged that payment of such bills cost them $48,546.60 and they were entitled to have plaintiffs pay them one-half of that amount. An at-issue memorandum was filed by plaintiffs on April 22, 1987.
Plaintiffs gave defendants notice of a trial setting conference to be held May 15, 1989. Part of that notice included a copy of the superior court's form entitled "Trial Setting Conference and Intention to Dismiss on Courts [sic] Own Motion." That form includes a warning to a plaintiff that if the plaintiff's case is more than two years old and the plaintiff or plaintiff's attorney does not personally appear at the trial setting conference, the court will enter an order dismissing the action for lack of prosecution pursuant to Code of Civil Procedure, section 583.420, subdivision (a)(2)(B). A more general warning of sanctions informs the parties that the trial court will impose "sanctions" for failure to comply with the delay reduction rules and orders made by the court.
At the May 15, 1989, trial setting conference, the court ordered the matter to arbitration. The court's order stated in part: "Arbitration award to be submitted within 120 days. Status conference set for 10-27-89 at 10:30 AM in Dept. 3. Counsel are ordered to file status conference questionnaires at least 2 court days prior to hearing. Notice waived." The order also stated that if the court's orders were violated, "sanctions may be imposed by way of contempt, payment of money, including attorney's fees and costs incurred by other parties, and/or removal of the case from the civil active list."
*1190 After the arbitrator made his award, plaintiffs filed a request for a trial de novo. However, when plaintiffs failed to appear at the scheduled status conference on October 27, 1989, the trial court ordered the case removed from the civil active list, ordered the at-issue memorandum vacated and dismissed the case, citing Code of Civil Procedure section 583.410 for the dismissal.[1]
On January 23, 1991, 15 months after the case had been dismissed, plaintiffs filed a motion to set the case for a status conference and assign a trial date. Plaintiff's motion stated that it was being made "upon the grounds that the within action has been pending four years and eight months and must be set for trial to avoid the five year mandatory dismissal bar." Defendants filed opposition to the motion, contending the court had no jurisdiction to set the case for trial because it had already been dismissed. On the day set for hearing of the motion, defendants' attorney appeared in court to argue the matter but the clerk indicated to the court that plaintiffs' attorney had telephoned that very morning and taken the motion off calendar.
On February 13, 1991, sixteen months after the case had been dismissed and three months before the five-year anniversary of the case, plaintiffs filed a motion to vacate the prior dismissal and to set the case for status conference and trial. Defendants filed opposition. The court (1) vacated the dismissal, (2) reinstated the complaint and cross-complaint, (3) ordered plaintiffs' attorney to pay sanctions to defendants' attorney and to the County of Los Angeles, (4) denied the motion to specially set for trial, (5) granted the motion to set a status conference, (6) indicated that it was vacating the order of dismissal without prejudice to defendants' bringing a motion to dismiss for failure to prosecute, (7) shortened time for notice of such a motion, and (8) set a hearing date of March 29, 1991, for the motion to dismiss.
Thereafter, defendants filed their motion to dismiss. The motion was denied. The court's minute order states in part: "The court finds reasonable diligence by plaintiffs in prosecuting this action."
The case went to trial and, on May 28, 1991, plaintiffs obtained a judgment in the sum of $50,000. The court awarded interest at the parties' *1191 contract rate of 12 percent. However, the court ruled the contract rate of interest would only apply up through March 1, 1988 (which plaintiffs state in their brief was the date the last installment on the promissory note became due). The judgment stated that after March 1, 1988, the interest rate would be 10 percent to the date of judgment.
Defendants have appealed from the judgment, challenging the order which vacated the dismissal of the action and the order which denied their motion to dismiss. Plaintiffs have also appealed. They challenge the court's decision to award them 12 percent interest only up through March 1, 1988.
FACTUAL BACKGROUND
The factual background of this case is gleaned from declarations submitted by the parties in connection with the plaintiffs' motion to vacate and the defendants' subsequent motion to dismiss.
1. Attorney Klein's Declaration
In support of plaintiffs' motion to vacate the dismissal and set the case for trial, their attorney, Maynard J. Klein, submitted his declaration. In it, he stated that even though the case had been dismissed on October 27, 1989, he was not aware of the dismissal until 15 months after it occurred. According to Klein, the dismissal came about in the following manner.
Klein was due to appear at the trial setting conference on May 15, 1989, but due to a calendar conflict, he sent a substitute attorney to that conference. Shortly after May 15, 1989, that substitute attorney advised Klein that the case had been referred to arbitration but, "to the best of [Klein's] recollection," the substitute did not advise Klein that the trial court had also set a status conference for October 27, 1989. For that reason, Klein did not appear at the status conference. He never received any notice from the trial court to the effect that if plaintiff did not attend the October 27, 1989, status conference, the case would be dismissed. He has always been under the impression that after one files a request for a trial de novo, "in due course the Court would assign a date for another trial setting or status conference." That assumption on his part was based on his experience in handling one other case where a party had requested a trial de novo after an arbitration.
When, by April 4, 1990, he had not heard anything about a new conference date, Klein sent his attorney service to look at the court's file to make sure that the request for trial de novo had actually been filed and to see when the case would be set for trial. Klein "assumed from the response [of the *1192 attorney service] that nothing had occurred since the filing of the Request for Trial de Novo and therefore continued to assume that a trial setting conference would thereafter be scheduled by the Court."[2] According to Klein, his "experience in Department 1 of the Court, during the second half of 1990, was that, except for priority matters, only `five year cases' were being assigned for trial" and he had previously been so advised by the then-presiding judge of the superior court. Klein stated that necessary discovery had been completed before the arbitration hearing of September 20, 1989, and the case had been ready for trial since that time.
2. Declaration of Defendants' Attorney
Defendants' attorney submitted his declaration in support of defendants' motion to dismiss for lack of prosecution. In it he noted that prior to the 15-month period of inaction on plaintiffs' part after the case was dismissed, there had also been periods of inactivity while the case was actually pending, specifically two 10-month periods and one 8-month period during which nothing happened in this case. The attorney stated that because of the long passage of time since the case was filed, defendants would be prejudiced if the case proceeded to trial because "the memories of the witnesses have dimmed, the tenants who lived in the apartment building during the period in question have left for parts unknown and ... workman [sic] who did work on the building are no longer available to testify." Defendants' attorney also noted that plaintiffs took more than three years to answer defendants' cross-complaint and that plaintiff Robert Reid had refused to appear at a noticed deposition because the place designated for the deposition was more than 150 miles from plaintiff's residence.
3. Declaration of Robert Anderson
A person by the name of Robert Anderson submitted a declaration in support of plaintiffs' opposition to defendants' motion to dismiss, giving the following evidence. Anderson had known plaintiffs and defendant Herbert Balter for many years and acted as the real estate broker on the sale of the property over which this action was filed. During the pendency of this action he acted as a liaison between plaintiffs (who live in northern California) and their attorney regarding "the handling of this action." He had also been in contact with defendants for the purpose of facilitating a settlement. In May or June of 1990, he telephoned defendants and, in the course of their conversation, "Defendant stated ... he would be able to keep the litigation between him[self] and the plaintiffs in court for years. Defendant did not tell *1193 [Anderson] ... that the litigation had been dismissed seven or eight months earlier." Anderson reported this conversation to attorney Klein shortly thereafter.
DISCUSSION
1. Validity of the October 1989 Order of Dismissal
(1) Defendants argue that the October 1989 dismissal of this case was both (1) authorized by law[3] and (2) appropriate since plaintiffs failed to appear at the October 1989 status conference. Defendants, however, appear to be confused between the authority of a court to dismiss a case because of the actions (or inactions) of its litigants and the procedural requirements that precede any such dismissal. At a minimum, such requirements include notice to the plaintiff of a motion or intent to dismiss and an opportunity for plaintiff to be heard. (Cordova v. Vons Grocery Co. (1987) 196 Cal. App.3d 1526, 1531 [242 Cal. Rptr. 605].) Contrary to defendants' assertion (discussed below), plaintiffs were not given notice that their case would be dismissed if they failed to appear for the status conference set for October 27, 1989. Therefore, dismissal was a clear violation of plaintiffs' due process rights (ibid.) and the order of dismissal is void (Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal. App.3d 549, 553 [189 Cal. Rptr. 838]).
Defendants resist this conclusion. They assert (1) plaintiffs were given notice that their case might be dismissed if they failed to appear at the October 1989 status conference and (2) such notice was given when plaintiffs received, from the court, written notice of the May 15, 1989, trial setting conference. As indicated above, that written notice of the trial setting conference stated that if plaintiffs' case was more than two years old, it would be dismissed if they or their counsel failed to appear for the trial setting conference.
We do not agree that warning plaintiffs their case could be dismissed if they failed to appear on May 15, 1989, for a trial setting conference is sufficient notice to sustain dismissing the case for failure to appear on October 27, 1989, at a status conference. Further, the court order issued on May 15, 1989, after the trial setting conference was held, specifically stated *1194 which sanctions might be imposed for failure to appear at the October 1989 status conference, and dismissal of the action was not one of them. Thus, not only was the sanctions notice for the May 1989 hearing not sufficient for the subsequent October 1989 hearing, but the notice given for that later hearing implied that dismissal of the case was not a possible sanction for failure to attend it.[4]
2. Validity of the Order Vacating the Dismissal
(2) Section 473 provides in part: "The court ... may, on motion of either party after notice to the other party, set aside any void judgment or order." Courts also possess inherent power to set aside void judgments. (Rogers v. Silverman (1989) 216 Cal. App.3d 1114, 1121 [265 Cal. Rptr. 286].) Because the October 1989 order of dismissal in this case was void, plaintiffs were entitled to have it set aside. "It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]" (In re Dahnke (1923) 64 Cal. App. 555, 560 [222 P. 381]; accord, Hayashi v. Lorenz (1954) 42 Cal.2d 848, 851 [271 P. 18].) In this case, an inspection of the record shows that plaintiffs received no notice that their case might be dismissed if they did not attend the October 1989 status conference; indeed it shows that the warning regarding sanctions for failure to attend that conference mentioned specific sanctions, and dismissal of the case was not one of them. Thus, the order which vacated the order of dismissal is clearly valid.
3. Validity of the Order Denying Defendants' Own Motion to Dismiss
a. The Factual Basis for Defendants' Position on Appeal
In arguing that the trial court erred in not granting their motion to dismiss, defendants point to the several lengthy periods of plaintiffs' inactivity while the case was pending and to the 16-month period of inactivity while the case lay dismissed. Defendants argue these delays in prosecution were unjustified *1195 and were prejudicial to them because they lost track of witnesses (tenants and workmen) and because the memories of the witnesses they did secure had faded. Defendants also argue that after the case was dismissed, they were "lulled into the security of believing the case was over and gone, and that further contact was not necessary with any of those witnesses." Defendants assert that rather than becoming increasingly diligent about getting their case to trial as its five-year anniversary approached, as plaintiffs were required to do (Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal. App.3d 1280, 1287 [279 Cal. Rptr. 488]), plaintiffs became less diligent with the result that the dismissal went unnoticed for 16 months.
b. Defendants' Burden on Appeal
(3) When an appeal is taken from a judgment and the appellant alleges the trial court made an erroneous pretrial ruling, it is not enough to show that the ruling was indeed erroneous. In addition, the appellant must also "show resulting prejudice, and the probability of a more favorable outcome, at trial." (Waller v. TJD, Inc. (1993) 12 Cal. App.4th 830, 833 [16 Cal. Rptr.2d 38], [relying on both statutory law (§ 475) and constitutional law (Cal. Const., art. VI, § 13)].)
Assuming arguendo the trial court abused its discretion in not granting defendants' motion for discretionary dismissal (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346 [228 Cal. Rptr. 504, 721 P.2d 590]), defendants have not made a sufficient showing that they were prejudiced at trial by the denial of their motion and that it was probably this prejudice that caused the verdict to go against them. While the record does contain defendants' attorney's declaration wherein he stated that because of the passage of time in this case, defendants' tenant and workmen witnesses had moved away and were not available for trial, this declaratory evidence is too broad, too general. It would have been better to give specifics, such as who the missing tenants and workers were and what relevant facts their testimony would have established. From the general, conclusionary statements of the defendants we are unable to determine just how, if at all, they were actually prejudiced at trial by the court's denial of their motion to dismiss. On such a showing we cannot conclude that the trial court's allegedly erroneous ruling rendered the ultimate result in this case unjust. (Waller v. TJD, Inc., supra, 12 Cal. App.4th at p. 833.)
c. Public Policy Considerations
There is another reason for denying defendants appellate relief now, a strong public policy reason. After their motion for discretionary dismissal *1196 was denied, and prior to trial, defendants had the option of seeking pretrial review by petitioning for a writ of mandamus to compel the trial court to grant their motion to dismiss. Instead, defendants let this case proceed to trial, thereby expending the trial court's, the plaintiffs', and their own resources in both trial and posttrial proceedings, proceedings which defendants now contend should never have taken place.
While the discretionary dismissal statute was enacted for the benefit of defendants named in lawsuits, it was also enacted for the public's benefit, i.e., to expedite the administration of justice by declogging court calendars and putting an end to elderly cases. (Lopez v. Larson (1979) 91 Cal. App.3d 383, 400 [153 Cal. Rptr. 912].) By letting this case proceed to trial instead of petitioning for mandamus relief when their motion to dismiss was denied, defendants thwarted both purposes of the statute. It was counterproductive to wait until after the case had proceeded to trial and judgment to request review of the order denying dismissal. As defendants failed to seek a pretrial resolution of the dismissal issue, we are not inclined to now disturb plaintiffs' victory on the merits.
4. The Validity of the Trial Court's Award of Interest
(4) In their cross-appeal, plaintiffs challenge the decision of the trial court to only allow interest at the contract rate up through the date the last installment became due on the promissory note on which they sued. Plaintiffs assert the contractual rate should have applied up to the date of judgment. They rely on Civil Code section 3289 which states in part: "Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation." (Italics added.) Defendants have not addressed the cross-appeal in their briefs. We assume they have conceded the validity of plaintiffs' position and we hold the trial court erred in not applying the 12 percent contractual interest rate up to May 28, 1991, the date of judgment.
DISPOSITION
The judgment is reversed insofar as it awards interest at the contract rate only through March 1, 1988, rather than up to the date of judgment. The judgment is affirmed in all other respects. The cause is remanded to the trial *1197 court for further proceedings consistent with the views expressed herein. Costs on appeal to plaintiffs.
Klein, P.J., and Hinz, J., concurred.
NOTES
[1] Unless otherwise indicated, all statutory references herein are to the Code of Civil Procedure.
Section 583.410, together with section 583.420, permit a trial court to exercise its discretion and dismiss an action for delay in prosecution if the case is not brought to trial within three years after it is filed (or two years if the Judicial Council prescribes the shorter time for the court because of the condition of the court's calendar or because of other reasons affecting the conduct of litigation or the administration of justice). The dismissal may be pursuant to the court's own motion or that of the defendant.
[2] The response of the attorney service was to simply note when the at-issue was filed and when the request for trial de novo (which it called an "at-issue") was filed.
[3] The law to which defendants refer is California's Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.). Provisions of that act stress the importance of having trial courts move cases along swiftly and permit courts to sanction attorneys and litigants who do not cooperate in this state's efforts to reduce the backlog of our trial courts. Among the sanctions mentioned is dismissal of the case. (See Gov. Code, §§ 68607 & 68608 [§ 68608 became operative July 1, 1992].) Additionally, defendants note that section 583.410 permits trial courts to dismiss an action for delay in prosecution. (See fn. 1, ante.)
[4] Defendants try to find some support in the fact that plaintiffs waived notice of the order made at the May 15, 1989, hearing (the hearing at which their "stand-in" attorney appeared). By that May 15, 1989, order, the trial court set the October 1989 status conference hearing. Defendants argue that since plaintiffs waived notice of what transpired at the May 1989 hearing, they should not claim they were not aware that they had to appear in October. However, defendants' argument is irrelevant because the orders of which plaintiffs waived notice were not sufficient to apprise them they might suffer dismissal if they did not appear in October. In other words, plaintiffs did not waive notice of a warning that dismissal might occur if they did not appear in October 1989; they merely waived further notice that they were supposed to appear in October 1989. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264330/ | 14 Cal.App.4th 1179 (1993)
18 Cal. Rptr.2d 281
HOLLY ROACH, Plaintiff and Appellant,
v.
DONALD VAUGHN LEWIS, JR., et al., Defendants and Respondents.
Docket No. B067605.
Court of Appeals of California, Second District, Division One.
April 6, 1993.
*1181 COUNSEL
Glenn W. Hoiby and Ronald P. Kaplan for Plaintiff and Appellant.
Tharpe & Howell, Eric B. Lee and Sean D. Cowdrey for Defendants and Respondents.
OPINION
MASTERSON, J.
Plaintiff Holly Roach appeals from the order dismissing her action against defendants Donald Vaughn Lewis, Jr., Donald V. Lewis, Sr., and Ann H. Lewis for failure to prosecute. (Code Civ. Proc., § 583.420, subd. (a).) We affirm.
BACKGROUND
On July 13, 1988, with four days remaining under the applicable statute of limitations, Roach filed a complaint alleging that, as a result of having been struck by a vehicle driven by Donald Vaughn Lewis, Jr., on July 17, 1987, she sustained personal injuries. Although Lewis's insurance carrier was notified within a short time after the incident, the summons was not served on the Lewises until early July of 1991, almost three years after the complaint was filed.
On November 25, 1991, the trial court notified Roach of its intention to dismiss the action, on its own motion, for lack of prosecution. Opposition to the motion was not filed by Roach until the day of the hearing, January 30, 1992. An at-issue memorandum was filed by Roach on the same date. Among other things, Roach's opposition stated that an answer had been filed in the action on July 30, 1991, that a set of interrogatories had been served and responded to, that Roach's deposition was set for February 1992, and that "other discovery [was] underway."
The trial court continued the hearing from January 30, 1992, to March 4, 1992, with permission given to Roach to file declarations regarding service *1182 and efforts made to serve appropriate parties. The only declaration filed pursuant to that permission was that of Roach's trial counsel. He stated that the delay in service of the summons and complaint was deliberate. As he explained, Roach's husband, who had also been injured in the accident, had settled his claim against the Lewises; Roach had settled her property damage claim; and Roach was concerned about settling too soon, since she feared further physical complications from the incident. Roach's trial counsel then detailed the contacts which he had had with the Lewises' insurance carrier, commencing in the early part of 1988 and continuing on a sporadic basis through May of 1990. In those contacts, medical reports on Roach's condition were furnished to the carrier. The declaration further stated that one or more psychologists had been treating Roach for stress, anxiety, and depression, which presumably resulted from the incident. Roach's trial counsel summed up his reasons for delay in service as follows:
"Now and at all times herein I believed I was acting in the best interests of my client, and in accordance with her wishes and intent, and to reduce the additional stress and pressure of litigation and formal discovery that she otherwise would have suffered during the early period of her treatment and hoped for recovery. At no time did [the Lewises' insurance carrier] voice any complaint as to the manner in which the case was being handled or progressing, nor did I anticipate that the court might disapprove of the parties' handling of the case."
On March 4, 1992, in an unreported hearing, the trial court dismissed the action for failure to prosecute. A formal order of dismissal was entered on March 18, 1992. Roach sought reconsideration, which was heard by the court on April 3, 1992. The court rejected the motion for reconsideration, finding that it was neither credible nor reasonable not to serve the summons until just a few days short of the three-year period following the filing of an action.
STANDARD OF REVIEW
(1) "It has been aptly remarked that [Code of Civil Procedure] section 583.420 and the other dismissal-for-delay statutes serve a dual purpose: `[O]ne is effectually the same as that of statutes of limitations they are both statutes of repose, seeking to discourage stale claims "to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." [Citations.] Secondly, the dismissal section is designed to compel reasonable diligence in the prosecution of actions, thereby expediting the administration of justice. [Citations.]' [Citations.] Balanced against *1183 these considerations is, of course, the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds. [Citations.] Although that policy is generally viewed as more compelling than the one seeking to promote prompt prosecution [citations], it will not prevail unless the plaintiff meets his burden of establishing excusable delay. [Citation.]" (Schumpert v. Tishman Co. (1988) 198 Cal. App.3d 598, 602-603 [243 Cal. Rptr. 810].)
(2) "When the trial court has ruled on such a motion, `"unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power."' [Citations.] `"The burden is on the party complaining to establish an abuse of discretion...."' [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 331 [216 Cal. Rptr. 718, 703 P.2d 58].)
DISCUSSION
In claiming that the court below abused its discretion, Roach places primary reliance on a Fifth District case, Putnam v. Clague (1992) 3 Cal. App.4th 542 [5 Cal. Rptr. 25]. In that case, three separate medical malpractice complaints were filed against the defendant. The plaintiffs' attorney was handling numerous other pending cases against the defendant for malpractice. The Court of Appeal noted that there were at least nine such actions, and possibly twelve. (Id. at p. 546, fn. 2.)
The plaintiffs' attorney in Putnam decided to prosecute one of these actions as a "lead case." Evidence obtained through discovery in the lead case could then be used in other cases, including the three cases of the plaintiffs whose actions were later dismissed. Extensive discovery was taken, including six expert witness depositions. Further, it appeared that there had been numerous trial date continuances, some of which had been requested by the defendant. Under the circumstances, the Court of Appeal held that the trial court had in fact abused its discretion when it granted dismissal.
Apart from its importance to the parties thereto, Putnam is significant since it was an attempt by the Fifth District to bring some order to what that court thought was an uncertain area. The Putnam court proposed the following test:
"When the plaintiff offers some explanation or excuse reflecting a conscious decision not to serve or otherwise prosecute the action, we believe there are two essential questions the court must initially address. Is the *1184 explanation credible under all the circumstances? If the facts are disputed and the trial court finds on substantial evidence that the explanation is merely an afterthought or pretext designed to cover up neglect, dismissal may be warranted. If the explanation is credible, however, the court should consider whether the reasons given for the decision are clearly unreasonable. That is, could a reasonably competent attorney conclude that delay was justified under the circumstances?" (3 Cal. App.4th at pp. 557-558.)
On its facts, Putnam is a sound decision. The reasons set forth by the plaintiffs therein were sufficient to justify their inaction. By way of example, the existence of the other malpractice litigation against the defendant, that the defendant himself had requested extensions, et cetera, all fit well within the criteria set forth in California Rules of Court, rule 373(e). Given this, we question why the court in Putnam found it necessary to formulate an all-purpose test designed to reach cases not before it.
(3) Further, we have doubts about the test itself. Using the first "prong" of the test, the trial judge is supposed to determine whether the explanation is "credible under all the circumstances." (3 Cal. App.4th at p. 557.) This should not be part of a test at all. Attorneys are required to be truthful at all times, and the cause that an attorney espouses should not be advanced simply because the trial judge finds that the attorney is not lying. The second "prong" is equally inappropriate. If the explanation is found "credible," the trial court is supposed to then "consider whether the reasons given for the decision are clearly unreasonable. That is, could a reasonably competent attorney conclude that delay was justified under the circumstances?" (Id. at p. 558.) Presumably, if the trial court determines that a reasonably competent attorney would so conclude, that is the end of the inquiry, and dismissal must be denied. Such total deference to counsel's strategy is unwise, particularly when the result is to deprive trial courts of the ability to run their own calendars. California Rules of Court, rule 373(e), sets forth in detail the relevant matters to be considered by the court in ruling on dismissal motions. Attorneys' strategy calls are not set forth as a relevant matter. For these reasons, we decline to adopt Putnam as a "test" to be applied in cases of this type.[1]
If we are to maintain our traditional role as a reviewing court, we should not substitute our discretion for that of the trial judges who are daily on the firing line. The Supreme Court has so instructed us in Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 [243 Cal. Rptr. 902, 749 P.2d 339]:
*1185 "The trial court, with declarations and supporting affidavits, was able to assess credibility and resolve any conflicts in the evidence. Its findings relating to lack of notice are entitled to great weight. Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations. [Citation.]" (Italics and fn. omitted.)
(4) Turning to the case before us, the trial judge found that the conduct in question was neither "credible [n]or reasonable." As indicated above, Roach's proffered excuses for the delay in service were that her husband's case and certain aspects of her case had settled, she was afraid of a premature settlement since further physical complications from the accident might have developed, and she sought to avoid the stress of discovery. In light of the showing made by Roach, the trial court properly rejected Roach's excuses.[2]
Relying on comments made by the trial court at the hearing on the motion for reconsideration, Roach next asserts that even if we uphold the trial court's rejection of her excuses for the delay in service, the record reveals an abuse of discretion due to the following reasons: "(1) the court's overzealous [sic] desire to clear its docket; (2) the court's erroneous application of the 60-day `fast-track' service rule to this non-fast-track case; and (3) the court's erroneous belief that a failure to serve summons and complaint within three years can never be deemed reasonable." We need not discuss this assertion at length. It is sufficient to note that the text of the reporter's transcript clearly refutes Roach's argument.
We conclude that the trial court was well within its discretion in dismissing Roach's action.
DISPOSITION
The order of dismissal is affirmed. Respondents shall recover their costs on appeal.
Spencer, P.J., and Ortega, J., concurred.
Appellant's petition for review by the Supreme Court was denied June 24, 1993. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
NOTES
[1] Roach has called our attention to the Fourth District's apparent adoption of the Putnam test in Yao v. Anaheim Eye Medical Group, Inc. (1992) 10 Cal. App.4th 1024 [12 Cal. Rptr.2d 856]. We decline to follow that court's lead.
[2] Obviously, given the trial court's conclusion that Roach's proffered excuses were neither credible nor reasonable, an assessment in which we concur, Roach would find little solace even under the Putnam test. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345701/ | 330 S.E.2d 830 (1985)
J.A. ALFORD and wife, Mary V. Alford
v.
TUDOR HALL AND ASSOCIATES, INC.
No. 8430SC1117.
Court of Appeals of North Carolina.
June 18, 1985.
*832 Holt, Haire & Bridgers by R. Phillip Haire, Sylva, for plaintiffs-appellants.
Morris, Golding and Phillips by Thomas R. Bell, Jr. and James N. Golding, Asheville, for defendant-appellee.
ARNOLD, Judge.
The sole question presented is whether the trial court erred in granting the defendant's motion for judgment notwithstanding the verdict.
Judgment notwithstanding the verdict was properly granted if all the evidence supporting plaintiffs' claim, taken as true and considered in the light most favorable to plaintiffs, was not sufficient as a matter of law to support a verdict for the plaintiffs. Hargett v. Air Service and Lewis v. Air Service, 23 N.C.App. 636, 638, 209 S.E.2d 518, 519 (1974), cert. denied 286 N.C. 414, 211 S.E.2d 217 (1975); Musgrave v. Savings & Loan Assoc., 8 N.C.App. 385, 392, 174 S.E.2d 820, 824 (1970).
The plaintiffs claim that defendant negligently failed to procure fire insurance on plaintiffs' house. The law is well-settled that an insurance agent or broker is not obligated to assume the duty of procuring a policy of insurance for a customer, Musgrave v. Savings & Loan Assoc., 8 N.C.App. 385, 393, 174 S.E.2d 820, 825 (1970), but that an agent or broker "who, with a view to compensation for his services, undertakes to procure insurance on the property to another, and who fails to do so, will be held liable for any damage resulting therefrom." Boney, Insurance Comr. v. Insurance Co., 213 N.C. 563, 566, 197 S.E. 122, 125 (1938) quoting 18 A.L.R. at 1214. See also Elam v. Realty Co., 182 N.C. 599, 602, 109 S.E. 632, 633 (1921).
In determining whether an agent has undertaken to procure a policy of insurance, a court must look to the conduct of the parties and the communications between them, and more specifically to the extent to which they indicate that the agent has acknowledged an obligation to secure a policy. Where "an insurance agent or broker promises, or gives some affirmative assurance, that he will procure or renew a policy of insurance under circumstances which lull the insured into the belief that such insurance has been effected, the law will impose upon the broker or agent the obligation to perform the duty which he has thus assumed." 3 Couch on Insurance 2d (Rev. ed.) § 25:46 (1984). Further, if the parties have had prior dealings where the agent customarily has taken care of the customer's needs without consultation, then a legal duty to procure additional insurance may arise without express and detailed orders from the customer and acceptance by the agent. Id.; see McCall v. Marshall, 398 S.W.2d 106 (Tex.1965).
Evidence that an agent took an application from the customer is sufficient to support a duty to procure insurance. See Musgrave v. Savings & Loan Assoc., 8 N.C.App. 385, 392-93, 174 S.E.2d 820, 824-25 (1970). *833 A "bare acknowledgment" of a contract to protect the insured against casualty of a specified kind until a formal policy can be issued is enough, even if the parties' communications have not settled all the terms of the contemplated contract of insurance. Sloan v. Wells, 296 N.C. 570, 573, 251 S.E.2d 449, 451 (1979); see also Harrell v. Davenport, 60 N.C.App. 474, 477-78, 299 S.E.2d 308, 311 (1983) (parties' failure to agree on premium or policy period is not fatal to plaintiff's claim).
In the present case, the evidence considered in the light most favorable to the plaintiffs indicates that the defendant's employees at no time informed or assured plaintiffs that their new house was covered or that a policy of insurance would be sought from an insurer. The evidence shows that although plaintiff Julius Alford told defendant's employee John Hall that he needed insurance on his house, he also left open the question of the extent of coverage and the amount of the premium. Alford requested defendant to calculate premiums for several coverages and said that he would bring a check by later.
Alford testified that in previous dealings with insurance agents other than defendant it was his practice to decide how much coverage he wanted, then examine the premium quoted, and decide whether he was willing to pay the premium. Alford admitted that he had gone to defendant's office before November, 1981 and discussed with John Hall insurance on his barn. The record does not show, however, that Alford went ahead and insured the barn through defendant.
Further, Alford testified that his present house was insured by defendant, but he admitted that he merely assumed the policy, which had been originally purchased by his aunt, when he bought the house from her. Alford also stated that his company's liability policy was acquired through Tony Chambers when Chambers was with defendant's firm, but that Chambers left defendant a week or so later and formed his own firm and that defendant carried the policy through him afterwards and at the time of the fire.
The record indicates that defendant did not have sufficient information or authority to seek a formal policy of insurance for plaintiff, and we do not believe plaintiffs could have reasonably expected defendant to go forward on the basis of the conversation between Mr. Alford and John Hall on the Monday before Thanksgiving. Moreover, the evidence fails to show that the parties had a course of dealing whereby the defendant would obtain insurance for plaintiffs without their approval as to the amount of coverage.
From the record it appears that the defendant did not promise or undertake either impliedly or expressly to procure insurance for the Alfords. An agreement by the agent to calculate premiums at various levels of coverage, without more, is in the nature of preliminary discussion, and does not reflect an undertaking to secure insurance. Given this lack of an undertaking, the law does not impose on defendant a duty to attempt to contact plaintiff or to warn him of the lack of coverage on his house.
Our review of the record convinces us that the evidence is not sufficient to support an inference that defendant acknowledged an obligation to procure insurance, which is essential to plaintiffs' claim of negligence. The trial judge's grant of judgment notwithstanding the verdict was properly entered.
Affirmed.
MARTIN and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345732/ | 174 Ga. App. 478 (1985)
330 S.E.2d 414
FRONTIER CONTRACTING COMPANY, INC.
v.
L.S.R., INC.
69672.
Court of Appeals of Georgia.
Decided April 3, 1985.
James O. Wilson, Jr., for appellant.
John H. Watson, for appellee.
McMURRAY, Presiding Judge.
On or about April 20, 1981, plaintiff L.S.R., Inc. sold a laser surveying unit to defendant Frontier Contracting Company, Inc. Because the unit which defendant purchased was not in production at that time, plaintiff provided defendant with a prototype of the unit. The prototype was to be used by defendant until the unit which it purchased was delivered. In late May 1981 the manufacturer of the unit asked plaintiff to return the prototype. Accordingly, plaintiff's branch manager contacted defendant's vice-president and told him that plaintiff would bring a substitute unit to defendant's jobsite. When plaintiff's branch manager arrived at the jobsite he picked up the prototype and left a second unit with defendant. In so doing, plaintiff's representative informed defendant's job superintendent that the second unit was more expensive than the prototype. The superintendent signed a delivery ticket for the replacement unit. It contained the following language: "You are responsible for loss or damage to this equipment until it is returned to L.S.R., Inc. and checked in by us. Value of above equipment $7,200.00."
When plaintiff's branch manager left the replacement unit with defendant, defendant's superintendent informed him that defendant had been having trouble with security because of attempts to break into defendant's jobsite trailer. He added that there was no need to *479 worry about the replacement machine because he had been taking the prototype home in the evenings. The following morning defendant's job superintendent telephoned plaintiff's branch manager and told him that the replacement unit had been stolen from defendant's construction trailer.
Plaintiff brought this action against defendant seeking the value of the replacement unit. The case was tried by the court sitting without a jury. After hearing evidence, the trial court determined that plaintiff was entitled to judgment against defendant in the amount of $7,355. This appeal followed. Held:
1. Defendant contends that it was unaware the replacement unit was more expensive than the prototype and that, therefore, it did not knowingly assent to the bailment of the replacement unit. In this connection, defendant acknowledges that its job superintendent was informed of the value of the replacement unit. It argues, however, that its job superintendent had no authority to accept property more valuable than the prototype. Defendant's contention is without merit.
"`"Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him." American Law Institute, Restatement, Agency 2d, p. 30, § 8, p. 103, § 27. Accord, Patterson v. Southern R. Co., 41 Ga. App. 94 (151 S.E. 818); Firemens Fund Ins. Co. v. Davis, 42 Ga. App. 49, 61 (155 S.E. 105); Mason v. Rice, 47 Ga. App. 502 (170 S.E. 829); Planters Rice Mill Co. v. Merchants Nat. Bank of Savannah, 78 Ga. 574, 585 (3 S.E. 327); Burch v. Americus Grocery Co., 125 Ga. 153 (53 S.E. 1008); 3 Am. Jur. 2d, 475, § 73.' Further, an estoppel arises as against the denial of agency when a principal places a purported agent in a position of apparent authority so that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has the authority to perform a particular act and deals with the agent upon that assumption. See Commercial Credit Corp. v. Noles, 85 Ga. App. 392, 396 (69 SE2d 309). See also Arrington & Blount Ford v. Jinks, 154 Ga. App. 785, 786-787 (1) (270 SE2d 27)." Jester v. Hill, 161 Ga. App. 778, 781 (1) (288 SE2d 870).
In view of the evidence presented at trial that defendant's superintendent frequently signed for items delivered to the jobsite and that defendant's vice-president knew plaintiff was going to take the replacement unit to the jobsite, we conclude that plaintiff was justified in assuming that the job superintendent had the authority to accept the replacement unit on behalf of defendant. Accordingly, defendant is estopped to deny the apparent authority of its job superintendent.
2. The trial court correctly determined that the bailment mutually *480 benefitted each of the parties and that, therefore, the defendant was under a duty to exercise ordinary care and diligence to protect the replacement unit. Electro-Medical Devices v. Urban Medical Services, 140 Ga. App. 776, 777 (1) (232 SE2d 106). The transaction benefited defendant because it was given possession of the replacement unit and an opportunity to use it. Plaintiff also benefitted from the transaction because it was able to comply with the manufacturer's request to return the prototype.
3. "In all cases of bailment, after proof of loss by the bailor, the burden of proof is on the bailee to show proper diligence." OCGA § 44-12-44. We cannot say the factfinder erred in determining that defendant failed to carry its burden of showing that it exercised the requisite degree of care. There was evidence that the defendant had been experiencing burglary problems; that its job superintendent had been taking the prototype home with him for safekeeping; and that plaintiff's representative advised the superintendent that he should similarly take the replacement unit home with him because it was more expensive than the prototype. Obviously, this was not done because the replacement unit was stolen from defendant's construction trailer the very first night it was in defendant's possession.
Judgment affirmed. Banke, C. J., and Benham, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345737/ | 174 Ga. App. 560 (1985)
330 S.E.2d 777
THOMAS
v.
THE STATE.
69902.
Court of Appeals of Georgia.
Decided April 12, 1985.
B. Andrew Prince, for appellant.
Bruce L. Udolf, District Attorney, Charles H. Frier, Assistant District Attorney, for appellee.
SOGNIER, Judge.
Thomas appeals his conviction of voluntary manslaughter and robbery.
1. Appellant contends the trial court erred by denying his motion for a mistrial based on an unauthorized excusal of a juror by a deputy clerk of court.
The record discloses that a jury list of 130 persons was drawn to serve on jury duty starting March 19, 1984, the date appellant's trial commenced. On that date 68 persons on the jury list appeared; this was the total number who had received summons to be present. After the first 48 persons arrived the remaining persons were excused for the day, as the clerk of court's office believed they had enough jurors to select a jury.
Appellant argues that it was improper for the deputy clerk to excuse at least one juror, and possibly more, as only Betty House and Linda Long were authorized to excuse jurors by an order of two superior court judges. It is not clear from the transcript who excused the jurors, other than the fact that "we" (apparently the clerk's office) excused them. Further, the record does not reflect the positions occupied by House and Long; that is, whether they worked in the clerk of court's office or elsewhere. However, the jury that tried appellant was struck after reaching the 48th name on the jury list. The juror who appellant claims was excused improperly was not one of the first 48 names on the list of jurors. Thus, no harm could result to appellant from excusing the juror, as his name was not reached before a jury was struck. See Dill v. State, 222 Ga. 793, 794 (1) (152 SE2d 741) (1966); Hall v. State, 166 Ga. App. 869, 871 (305 SE2d 666) (1983).
In the absence of any evidence in the record as to who actually excused the juror in question and whether the person who excused the juror was one of the two persons authorized to do so, it is presumed that the trial court and its officers performed their duties properly. OCGA § 24-4-24; Riggins v. State, 159 Ga. App. 791 (285 SE2d 579) (1981).
2. a. Appellant was charged with murder and contends it was error *561 to deny his request to charge on involuntary manslaughter committed by doing a lawful act in an unlawful manner.
Appellant testified he hit the victim on the back of the head with a vodka bottle after the victim made a homosexual advance to him. Appellant was afraid the victim would force him to perform an unnatural act, and hit the victim because he was afraid of him.
Appellant argues now that justifiable homicide was not his defense; however, he made two written requests to charge on justifiable homicide and the court, in fact, instructed the jury on this defense. In Saylors v. State, 251 Ga. 735, 737 (3) (309 SE2d 796) (1983), the court held that a defendant who seeks to justify homicide under the "self-defense" statute (OCGA § 16-3-21) is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, whatever the implement of death. Thus, there was no error in denying appellant's request to charge on involuntary manslaughter.
b. Appellant also contends the trial court erred by denying his request to charge on theft by taking as a lesser included offense of armed robbery, because theft by taking is a lesser included offense of armed robbery as a matter of law.
In his statement to police and his testimony at trial appellant admitted that after striking the victim and knocking him to the floor, appellant bound and gagged the victim (who was still conscious), then went through his pockets and took all of his money. Such evidence is sufficient to authorize a conviction of armed robbery as it was clearly a taking of property from the person of another by use of an offensive weapon. OCGA § 16-8-41; Grant v. State, 161 Ga. App. 403, 404 (3) (288 SE2d 118) (1982). Since the State's evidence clearly warranted a charge on armed robbery as defined in the Code, which was given, and there was no evidence of the lesser offense of theft by taking, there was no error in failing to give appellant's requested charge. Shepherd v. State, 234 Ga. 75, 78 (3) (214 SE2d 535) (1975); Grant. supra at 404 (4).
Judgment affirmed. Birdsong, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345731/ | 254 Ga. 473 (1985)
330 S.E.2d 364
WILSON
v.
THE STATE.
41615.
Supreme Court of Georgia.
Decided June 10, 1985.
Rehearing Denied June 27, 1985.
G. Terry Jackson & Assoc., Michael G. Schiavone, for appellant.
Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, Michael J. Bowers, Attorney General, Eddie Snelling, Jr., Senior Attorney, for appellee.
BELL, Justice.
Jesse Wilson was convicted of the murder of 85-year-old Claude Nichols and motor vehicle theft.[1] He appeals, and we reverse.
On July 7, 1983, Nichols' car, a red Ford Fairmont, was found abandoned in Savannah, Georgia. In an attempt to locate Nichols several officers went to his apartment, where they discovered him on his bed, bound with neckties around his legs, hands, and neck. He had been dead approximately three to four weeks. Strangulation was the cause of death.
Henry Taylor, the state's key witness, testified that he was with Wilson at the time of the murder, but that he neither killed nor assisted *474 in killing Nichols. Taylor said that sometime between the Monday and Thursday preceding Father's Day, June 19, 1983, he and Wilson went to Nichols' house to repair his roof. According to Taylor, when he and Wilson had finished with the roof, Nichols asked them to paint his refrigerator. Taylor said that while they were doing so, Wilson suggested they rob Nichols. Taylor testified that he told Wilson he did not want to, but that at about that time Nichols walked in the room and Wilson began choking him from behind with his forearm. Taylor said that when Wilson released Nichols, Nichols collapsed to the floor, and that Wilson carried him into the bedroom, laid him on the bed, and tied him up with neckties. Taylor and Wilson removed two television sets from the house and sold them. Taylor testified that Wilson also took a pair of tan gloves and other items from Nichols' bedroom. Taylor identified a pair of tan gloves recovered from Wilson's bedroom by the police as the gloves Wilson took from Nichols. According to Taylor, Wilson removed Nichols' keys from his pockets, and they drove away in Nichols' car. Taylor also testified that he and Wilson, with Wilson driving Nichols' car, returned to Nichols' house three or four days later, and that Wilson went inside and obtained Nichols' checkbook.
Two other witnesses for the state, Mattie Graham and Ethel Rozier, are sisters of Taylor. Graham testified that she saw Wilson driving a red car in June 1983, which she had never seen him using before. She said that Wilson told her he had borrowed it. She further testified that Wilson never told her who killed Nichols. Graham, however, was impeached by her prior inconsistent statement that Wilson had told her that Taylor killed Nichols. Graham was also impeached by prior convictions of forgery and aggravated assault.
Ethel Rozier testified that on Father's Day she saw Wilson driving a red car that she did not recognize. According to her, he said he got the car from an old man. She further testified that the following day she saw Wilson with a large checkbook bearing Nichols' name on the checks. She said that Wilson asked her to call Nichols' bank to find out if he had money in his account, and to write out a check for him. She testified that she called the bank and wrote out a check, but then threw it away and refused to write another one. Rozier also testified that Wilson had several of Nichols' credit cards.
An acquaintance of Wilson, Sylvia Ellison, testified that the day before Father's Day he came to her house and told her that he knew a man who had two television sets for sale for twenty-five dollars each. She told him that she wanted to buy one of them. Wilson and Taylor returned with one of the sets later that day.
At trial Wilson testified that he had never been to Nichols' house and had no part in his killing. He admitted that the day before Father's Day he and Taylor sold a television set to Sylvia Ellison. He *475 added, however, that he did so only because Taylor approached him that day, asking if he knew anyone who would like to buy some television sets. He said that he did not know how or where Taylor had obtained them. Wilson also testified that he, along with other people, had driven and ridden in Nichols' car, which Taylor had somehow acquired, and that he had seen Taylor and one of his sisters with a checkbook about the same time that Taylor had approached him concerning the television sets. On cross-examination, Wilson admitted that he also sold some sheets and shirts that had belonged to Nichols, and that he had thrown away Nichols' car keys and checkbook.
1. In his seventh enumeration of error Wilson contends that the evidence presented to the jury is insufficient to support his two convictions.[2] We disagree. Viewing the evidence in a light most favorable to the jury's verdict, we find that a rational trier of fact could have found Wilson guilty of murder and motor vehicle theft beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. In his third enumeration of error Wilson contends that the trial court erred in allowing the state to introduce evidence that Henry Taylor was given a lie detector test, following which the murder charge against him was dismissed. We agree and, because we cannot conclude the error was harmless, reverse.
In a pre-trial order the trial court ruled that the state could not elicit testimony that a polygraph examination had been administered to Taylor and that, based on it, the murder charge against Taylor had been dismissed. The court also ruled, however, that if the defense elicited testimony that the murder charge against Taylor had been dismissed, the state could then introduce evidence that Taylor took a polygraph examination, but not the results thereof, for the purpose of explaining its conduct in dismissing the murder charge.
During the cross-examination of Ethel Rozier, defense counsel attempted to impeach her credibility by questioning Ms. Rozier about her relationship with Henry Taylor and her involvement with the use of Nichols' checkbook. In particular, the following colloquy occurred: "Q. [Y]ou got your story right and that's when you went to the police because you want to help your sister and your brother. A. I don't have to help my sister or brother because my brother was not charged with any murder and he was . .. the charges was dropped against him, so I have no reason to help him, and if he was wrong, I wouldn't help *476 him anyway."
Based on the foregoing, the state contended that the defense had violated the pre-trial order by eliciting testimony that the state had dismissed the murder charge against Taylor, and that, to explain its conduct, it should therefore be allowed to present evidence that the charge was dismissed after Taylor took a polygraph examination. The trial court agreed, and the state presented evidence to that effect, without mentioning the results of the examination.
We find that that evidence was improperly admitted. "In general, it is impermissible for the state to bolster the credibility of a state's witness or impugn the credibility of the defendant by eliciting testimony to the effect that the witness or the defendant were administered polygraph examinations. See Stack v. State, 234 Ga. 19, 23-25 (214 SE2d 514) (1975); Williams v. State, 251 Ga. 749 (15) (312 SE2d 40) (1983)." Cromer v. State, 253 Ga. 352 (3) (320 SE2d 751) (1984). But see State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977) (upon an express stipulation of the parties, the results of a lie detector test are admissible for whatever purpose the jury chooses). However, pursuant to OCGA § 24-3-2 the jury may be apprised that a polygraph examination has been administered if necessary to explain an "actor's" conduct and motives, but only "`when . . . the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial),. . .'" Cromer v. State, supra, 253 Ga. at 356 (quoting Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982)). In this regard, "[i]t will be seen that only in rare instances will the `conduct' of an investigating officer [or, as here, the state] need to be `explained,' as in practically every case, the motive, intent, or state of mind of such an officer will not be `matters concerning which the truth must be found.' At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something." Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984). (Emphasis in original.)
Here, the question is whether the defense, in questioning Ms. Rozier, placed in issue the state's conduct in dismissing the murder charge against Taylor. If it did, then the evidence that the murder charge against Taylor was dismissed after he took a polygraph examination was admissible. We find that the defense did not place the state's conduct in issue.
In cross-examining Rozier, Wilson's attorney was pursuing the crucial defense of whether Rozier had conspired with her brother and sister to concoct a story framing Wilson. Rozier's answer, responsive to the question addressed to her, was that she did not need to concoct a story to help her brother, because the murder charge against him *477 was dropped. That answer was clearly silent as to the state's conduct in the dismissal of the murder charge, and in no way implied any wrongdoing by the state in failing to pursue the murder charge against Taylor. Thus, the evidence that the state dropped the murder charge against Taylor after he took a lie detector test was inadmissible.
The question then becomes whether its admission constitutes harmful error under the standards of Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). Here, the credibility of Taylor and his two sisters was critical. Wilson's guilt or innocence primarily depended on whether the jury believed Wilson's story or that of Taylor and his sisters. Although the jury was not told the results of the lie detector test, they might well have inferred that, since the murder charge was dismissed against Taylor while Wilson was being prosecuted, Taylor had passed the polygraph examination. Such an inference directly bolsters the credibility of Taylor and, indirectly, the credibility of his sisters. See Stack v. State, 234 Ga. 19, 23-25 (214 SE2d 514) (1975); Williams v. State, 251 Ga. 749 (15) (312 SE2d 40) (1983); Cromer v. State, supra, 253 Ga. at 356. Under these circumstances, we cannot conclude that the admission of the polygraph evidence was harmless, and Wilson's convictions must therefore be reversed.
3. For purposes of retrial we must address another of Wilson's contentions, contained in his first enumeration of error. In that enumeration Wilson argues that the trial court improperly denied his motion to suppress the pair of gloves that the state recovered from his grandmother's house. We agree.
Following the hearing on the motion to suppress, the trial court denied the motion on the ground that Wilson did not have a legitimate expectation of privacy in the room in which the gloves were found and thus had no standing to challenge the search. We find that the trial court should not have denied the motion on the ground stated. At the time of the search Wilson was living in his grandmother's home, with her permission. He occupied his own room there, and presumably had the right to exclude people other than his grandmother from the premises. Wilson, therefore, did have a reasonable expectation of privacy in the area searched. See Sims v. State, 251 Ga. 877 (6) (311 SE2d 161) (1984); Nealey v. State, 233 Ga. 326, 327 (211 SE2d 286) (1974); Rakas v. Illinois, 439 U.S. 128, 138-139 (99 SC 421, 58 LE2d 387) (1978); United States v. Haydel, 649 F2d 1152, 1154-1155 (5th Cir. 1981), modified 664 F2d 84, cert. denied, 455 U.S. 1022 (102 SC 1721, 72 LE2d 140) (1982).
The state urges that, even if Wilson did have a reasonable expectation of privacy, we should conclude that the motion to suppress was properly denied, on the ground that Wilson's grandmother gave a valid consent to search. We decline to do so, for the reason that the *478 trial court, which denied the motion on the more narrow ground of lack of expectation of privacy, did not reach the issues of whether Wilson's grandmother had the authority to give the consent to search and, most importantly, of whether the consent was freely and voluntarily given. See Mooney v. State, 243 Ga. 373, 377 (1) (254 SE2d 337) (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 222 (93 SC 2041, 36 LE2d 854) (1973); Bumper v. North Carolina, 391 U.S. 543, 548 (88 SC 1788, 20 LE2d 797) (1968); United States v. Block, 590 F2d 535, 539 (2, 3) (4th Cir. 1978). We note that if a retrial occurs and the motion to suppress is renewed, the trial court may consider the issues involving consent at that time.
Because we have decided that Wilson's conviction must be reversed on the basis of the state's use of polygraph evidence, we need not decide whether the denial of Wilson's motion to suppress on the ground of lack of expectation of privacy was harmful error.
4. We find that Wilson's remaining enumerations of error need not be addressed.
Judgment reversed. All the Justices concur, except Marshall, P. J., and Weltner, J., who dissent as to Division 2 and the judgment.
NOTES
[1] The crimes were committed between June 15 and June 18, 1983. Wilson was indicted on October 14, 1983, and the Chatham County jury returned its guilty verdicts on May 31, 1984. Wilson was sentenced to life imprisonment for murder and five years for motor vehicle theft, these sentences to be served concurrently. A motion for new trial was filed on June 20, 1984. The transcript of evidence was certified by the court reporter on July 5. Wilson's motion for new trial was amended on August 23, 1984, heard on August 24, and denied on August 27. The notice of appeal was filed on September 11, 1984. The record was docketed in this court on October 15, 1984. The appeal was submitted for decision without oral arguments on January 14, 1985.
[2] Although this case is being reversed on the grounds discussed in Division 2, infra, we must, nevertheless, address Wilson's enumeration that the evidence, including evidence improperly admitted, see Division 3, infra, was insufficient to support his convictions. See Lewis v. State, 248 Ga. 566 (1) (285 SE2d 179) (1981); Hall v. State, 244 Ga. 86 (5) (259 SE2d 41) (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345736/ | 174 Ga. App. 444 (1985)
330 S.E.2d 383
HAMBRICK
v.
THE STATE.
69698.
Court of Appeals of Georgia.
Decided April 2, 1985.
C. Michael Bozeman, A. J. Whitehurst, for appellant.
H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.
BEASLEY, Judge.
In this appeal from conviction and sentence for robbery, aggravated assault, and burglary, there was evidence as follows: appellant Hambrick went to the residence of his wife's elderly stepgrandfather, John Arrington, and identified himself to the nearly blind Arrington as another of Arrington's grandsons. Arrington knew the sound of Hambrick's voice, was not deceived, and knew all along that the visitor was Hambrick. Arrington permitted Hambrick to come and remain to chat with him.
Shortly before, Hambrick had come to the house and induced Arrington's wife to leave so that the old man would be alone. When Hambrick saw her leave, he returned.
Arrington customarily kept his money in snuff cans tied around his neck with stockings. Hambrick tried to pull the snuff cans off but *445 was unsuccessful so he took the pocketknife already in his hand and cut them loose. When Arrington put his hand up to his neck to try to stop Hambrick, the victim's finger was cut. Held:
1. Hambrick asserts that the evidence was insufficient for any rational trier of fact to find the essential elements of the offenses charged beyond a reasonable doubt, and that the trial court erred in failing to direct a verdict of acquittal. He specifically enumerates as error the court's refusal to direct a verdict of acquittal on the charge of armed robbery, for which he was indicted but not convicted.
Even if the refusal was error, it was harmless inasmuch as the grant of a directed verdict as to armed robbery would still have permitted appellant's prosecution for robbery, a lesser included offense of which he was ultimately convicted. See Dickerson v. State, 151 Ga. App. 429 (2) (260 SE2d 535) (1979). We find, however, that the trial court committed no error in refusing to direct a verdict on the original charge.
"A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon." OCGA § 16-8-41.
Appellant challenges the nature and role of the pocketknife as an offensive weapon. The term "offensive weapon" includes not only weapons which are offensive per se, such as firearms loaded with live ammunition. It also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use. Meminger v. State, 160 Ga. App. 509 (287 SE2d 296) (1981), rev'd on other grounds, 249 Ga. 561 (292 SE2d 681) (1982), vacated, 163 Ga. App. 338 (295 SE2d 235) (1982).
The knife in this case, though rather small and of a type suitable for carrying in the pocket, was arguably capable of inflicting the types of injuries which generally can be produced by knives, including death or great bodily injury. Whether or not the pocketknife in question constituted a deadly (or offensive) weapon was properly for the jury's determination. See Quarles v. State, 130 Ga. App. 756 (2), 757 (204 SE2d 467) (1974); Banks v. State, 169 Ga. App. 571, 572 (314 SE2d 235) (1984).
From the evidence, the jury could have found that the knife was used against the elderly victim in a manner likely to produce death or great bodily injury. Furthermore, there was evidence that Hambrick did use the knife directly, to take the money from the victim's person.
Appellant further contends that there was insufficient evidence of any intent to rob Arrington, and in support of this cites a statement *446 by the trial judge that Hambrick "did not intend, he did not intend to rob the man by force." This statement was made merely in colloquy among the court and counsel, and the judge went on to say, "He intended to take it away from him as a robbery by sudden snatching, it seems to me, or by cutting it away from his person." Snatching property while using an offensive weapon can constitute armed robbery rather than robbery by sudden snatching. See Geter v. State, 226 Ga. 236 (173 SE2d 680) (1970).
"`[I]t is not necessary for the state to show that appellant expressed an intent to rob in so many words, or declared a purpose to carry the intent into effect, for the jury to arrive at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved. In seeking the motives of human conduct, inferences and deductions may properly be considered where they flow naturally from the facts proved. [Cit.]' Fears v. State, 152 Ga. App. 817 (2) (264 SE2d 284)." Chitwood v. State, 170 Ga. App. 599, 600 (317 SE2d 589) (1984). The evidence was sufficient to withstand a motion for a directed verdict of acquittal regarding armed robbery.
After having reviewed the evidence in the light most favorable to the prosecution as to Hambrick's conviction for robbery, we conclude that any rational trier of fact could have found the essential elements of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979); Boyd v. State, 244 Ga. 130 (259 SE2d 71) (1979).
We next consider Hambrick's conviction for aggravated assault. A person commits such offense when he assaults with intent to rob or with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. OCGA § 16-5-21. A person assaults when he either attempts to commit a violent injury to the person of another or commits an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20. The court so charged.
Here again, appellant argues a lack of intent and the innocuous nature of the knife in question. For the reasons given above, we find this to be without merit. A directed verdict was not demanded, and an application of the test recited above, as set by Jackson and Boyd, affirm the verdict as legally authorized.
With regard to burglary, Hambrick argues that the evidence is undisputed that he had authority to enter. While that is true, it does not end the matter. The statute provides that "[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another . . . or any room or any part thereof." *447 OCGA § 16-7-1. (Emphasis supplied.) [1] "Without authority" means without legal right or privilege or without permission of a person legally entitled to withhold the right. OCGA § 16-1-3; Brown v. State, 143 Ga. App. 256 (238 SE2d 258) (1977). Although the disguised caller initially had Arrington's authority to enter and remain for a friendly visit, there was sufficient evidence, including testimony of the victim's struggle with Hambrick, to create a jury question regarding whether the authority to remain ceased at the time the offensive, aggressive behavior began. When Hambrick's ulterior purpose beyond the bounds of a friendly visit became known to Arrington, who was the source of the authority, and he reacted against it, a reasonable inference could be drawn that the authority to remain ended. Arrington did not have to shout "Get out!" for this to be so. Yet Hambrick remained until he got possession of the money, far beyond the time at which the scope of the permission ended.
There is also sufficient evidence that appellant had the requisite intent both when he entered the victim's home and when he remained there. In any event, whether a defendant entertained an intent to commit a felony is a matter for the jury to say, under the facts and circumstances proved. Kinney v. State, 155 Ga. App. 95 (270 SE2d 209) (1980).
A review of the evidence adduced at trial reveals there was ample evidence sufficient to enable any rational trier of facts to find the existence of the offense of burglary beyond a reasonable doubt. Jackson v. Virginia, supra; Maddox v. State, 170 Ga. App. 498 (317 SE2d 617) (1984).
2. Appellant also contends that the court erred in failing to charge the jury as requested, that theft by taking is a lesser included offense of armed robbery and burglary.
It is true that theft by taking (OCGA § 16-8-2) has been held to be a lesser included offense of armed robbery, Shepherd v. State, 234 Ga. 75, 78 (214 SE2d 535) (1975), and also may be a lesser included offense to burglary. Lockett v. State, 153 Ga. App. 569 (266 SE2d 236) (1980). However, where the evidence shows completion of the greater offenses, as here, it is not necessary for the court to charge on a lesser included offense. See Smith v. State, 228 Ga. 293, 294 (185 SE2d 381) (1971); Craighead v. State, 126 Ga. App. 300, 302 (190 SE2d 606) (1972); Jordan v. State, 239 Ga. 526 (238 SE2d 69) (1977); Mallory v. State, 166 Ga. App. 812, 814 (305 SE2d 656) (1983).
The evidence clearly warranted, as to these offenses, the given charges on armed robbery and burglary, as well as the charge on robbery, *448 that is, by the use of force, intimidation or sudden snatching (OCGA § 16-8-40). The trial court was required to go no further. This enumeration is without merit.
Judgment affirmed. Deen, P. J., and Pope, J., concur.
NOTES
[1] The Georgia statute on burglary departs significantly from the common law crime of breaking and entering. See 12A CJS, Burglary, § 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345746/ | 174 Ga. App. 607 (1985)
330 S.E.2d 808
RILEY
v.
THE STATE.
70182.
Court of Appeals of Georgia.
Decided April 18, 1985.
Howard T. Scott, for appellant.
Ken Stula, Solicitor, for appellee.
DEEN, Presiding Judge.
Douglas Morgan Riley was arrested and charged with driving under the influence of alcohol. The trooper who made the arrest testified as to outward indicia of intoxication, and a "breathalyzer" test administered immediately subsequent to the arrest showed a blood alcohol level of .14%. When the case was called for trial, appellant's attorney rose from his seat in the jury array and requested a continuance on the ground that he had been called for jury duty and had not had time to prepare the case. The court denied the motion, and the trial proceeded.
A Clarke County jury found appellant guilty as charged, and he received a sentence of twelve months' probation and a $600 fine, with eighty hours' community service as a condition of probation. On appeal Riley enumerates as error the denial of the motion for continuance and an allegedly burden-shifting jury instruction regarding the burden of proof as related to the effect of the statutory presumption of intoxication when the blood alcohol level exceeds .10%. Held:
1. To grant or deny a motion for continuance is a matter strictly *608 within the sound discretion of the trial court. Hufstetler v. State, 171 Ga. App. 106 (319 SE2d 869) (1984). In the case sub judice we do not agree with appellant's contention that his attorney's being called for jury duty would per se require the postponement of any and all trials in which the latter was scheduled to participate as counsel. This is true a fortiori when, as here, the attorney did not make his motion for continuance until after the case was actually called for trial. The record indicates that there was an interval of four months and one day between the arrest and the call of the case, thereby giving rise to an inference of lack of due diligence on the part of counsel. See Dorsey v. State, 236 Ga. 591 (225 SE2d 418) (1976).
We have here two conflicting legal duties, both of them of a very high order in our society and involving constitutionally mandated elements; i.e., the provision for jury trials and the provision for representation by counsel. 1983 Constitution of Georgia, Art. I, Sec. I, Pars. XI and XII. Normally they do not conflict. But a person can perform only one of these duties at a time; he cannot function as a juror and as the attorney for the accused, obviously. Here, counsel found himself in that dilemma.
The law designating the universe from which jurors are to be called has enlarged that universe by discarding the categories of exclusion and leaving exemption to be dealt with by the court on an almost case-by-case basis, or at least on a more refined and narrow basis than heretofore prevailed, so that the broadest cross-section of those in the community who are minimally qualified will serve. OCGA § 15-12-1. The law expressly provides the standard for exemption, the application of which is deposited with the court. Thus, being excused from jury duty, either entirely or partially or until some other term or time, is discretionary with the court. Benford v. State, 18 Ga. App. 14 (1) (88 S.E. 747) (1916).
Management of case proceedings is also deposited to a large degree with the court. "The judge has a discretion in regulating and controlling the business of the court, and the appellate court should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from its abuse." Bryan v. State, 148 Ga. App. 428 (1) (251 SE2d 338) (1978). Another example of court management responsibility appears in 1983 Constitution of Georgia, Art. VI, Sec. IX, Par. I.
Here, whether to excuse counsel from jury duty so as to serve the needs of his client, or to continue the defendant's case was in both instances clearly a matter upon which the court was to exercise its judgment. Counsel should have been prepared for either eventuality and could have avoided last-minute scurrying by the simple expedient of bringing the dual demand to the court's attention for its early resolution as soon as the second command was received. Not having done *609 so, counsel placed the court in the position of having to excuse a juror and thus render the array one short and depriving some litigants of counsel's services as a juror, or resetting a case for which witnesses had been called and trial preparation made.
The record demonstrates that the court weighed the competing interests fairly. We find no abuse of the trial court's discretion and therefore hold this enumeration to be without merit.
2. Scrutiny of the record, including the trial transcript, leads us to conclude that the jury instructions did not impermissibly shift the burden of proof, in contravention of appellant's constitutional rights. See OCGA § 40-6-392; County Court of Ulster v. Allen, 442 U.S. 140, 157 (99 SC 2213, 60 LE2d 777) (1979); Olsen v. State, 168 Ga. App. 296 (308 SE2d 703) (1983). This enumeration too, is without merit.
Judgment affirmed. Pope and Beasley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345747/ | 254 Ga. 481 (1985)
330 S.E.2d 869
ADAMS
v.
THE STATE.
41896.
Supreme Court of Georgia.
Decided June 27, 1985.
Westbrook & Vines, Carlton H. Vines, for appellant.
David L. Lomenick, Jr., District Attorney, David L. Whitman, Assistant District Attorney, Michael J. Bowers, Attorney General, Eddie Snelling, Jr., Senior Attorney, for appellee.
BELL, Justice.
Thomas Camillus Adams was indicted for the malice murder of Barbara Caldwell, a/k/a Barbara Hartline. He was found to be guilty but mentally ill, OCGA § 17-7-131, and was sentenced to life imprisonment.[1] Adams appeals, and we affirm.
Adams and his wife lived in a mobile home in Lyerly, Georgia, across the street from Barbara Caldwell and Howard Gene Hartline.[2] Gene and Adams had been friendly, but Barbara did not like Adams, and pressured Gene into avoiding him. On the evening of June 29, 1984, Adams visited the Hartlines. Gene asked him to leave, and Adams responded by threatening to turn loose his vicious dog and telling Gene that he was going to kill something. Adams returned to his *482 home, and the Hartlines went to bed. Later that night they awoke to find their house ablaze. Gene went outside and extinguished the fire. He smelled a strong odor of kerosene, and accused Adams, who was present, of starting the blaze. A melee ensued, during the course of which Mrs. Adams shot and wounded Gene Hartline with a .22 rifle, and the appellant killed Barbara Hartline with a single blast from a 20-gauge shotgun. There were no eyewitnesses to the slaying, but one observer, Jerry Donald Rutledge, testified that he heard a blast after he saw Adams go around the back of the Hartline house, then saw Adams return to the front of the house and yell at a police officer, "You better call the ambulance, I killed the old S.O.B., or she's dying," or, "You better call an ambulance . . . the old son of a bitch, she's dead or dying." Another witness, the police officer, testified that Adams, after emerging from the back of the house, frantically beat on the officer's car four or five times with the butt end of his shotgun and yelled, "Hey, son of a bitch, call the ambulance `cause I know I've shot that ole bitch twice." Barbara's body was later discovered in back of the Hartline house. Dr. Warren Tillman, a medical examiner with the State Crime Lab, testified that his autopsy revealed Barbara had died of a single shotgun blast to the back. Kelly Fite, a firearms examiner with the State Crime Lab, estimated that she had been shot from a distance of about 38 feet.
When Adams was arrested he asked an arresting officer, "How many of the sons-of-bitches did I kill?" At trial Adams did not deny having shot the deceased, but testified that he had no recollection of doing so he claimed that the last events he remembered before he was arrested were that Hartline had accused him of setting the fire and had spun or pulled him, and that at that moment he had been scared of Hartline. He said that he remembered nothing else of the events leading to his arrest.
Adam's defense was insanity at the time of commission of the offense. Psychiatrist Frank G. Pratt testified that he had treated the defendant on multiple occasions for the VA on an outpatient basis during the period 1980-84. According to his records, Adams had been discharged from the army in 1968, with psychiatric hospitalization for six months, and had subsequently been rehospitalized on multiple occasions. In 1978 he had suffered a gunshot wound to the head, and the wound had necessitated the removal of part of his left frontal lobe and the insertion of a metal plate to replace bone which had been removed from his forehead. The residual effects of the wound were a continuing seizure disorder, inability to smell or taste, double vision, and blackouts. Adams was on medication to control his seizures. According to Dr. Pratt, the missing portion of Adams' brain controlled emotion and thinking. Its absence, combined with post-traumatic stress stemming from his Vietnam service, caused him to be unstable *483 and "quite paranoid." He was prone to misinterpret daily events, became frightened easily, had low impulse control, and experienced rage episodes. In Dr. Pratt's opinion, Adams might black out in a situation where he felt frightened, and during the blackout period he would not be able to distinguish between right and wrong. Dr. Pratt further testified that based on the information he had, including what Adams had told him, he was of the opinion that Adams was unable to distinguish between right and wrong when he killed the deceased. In addition to Dr. Pratt's testimony, two lay witnesses acquainted with Adams testified that they had known him to have serious mental problems. One of them, Adams' former wife, said that in her experience he frequently did not know what he was doing, and at times was insane.
1. In his first enumeration Adams contends that the trial court erroneously denied his motion for new trial. This enumeration raises two related issues.
a. First, appellant raises the general grounds. However, we find that the evidence, viewed in the light most favorable to the state, was sufficient for a rational trier of fact to have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
b. Second, it is appellant's argument that the evidence showed he was insane when he committed the homicide. The evidence upon which he relies consists of the homicide itself, which he characterizes as having been "utterly senseless"; the evidence that he was repeatedly hospitalized for psychiatric treatment; and Dr. Pratt's testimony concerning his mental condition. Adams argues that the effect of this evidence was to establish that he was unable to distinguish right from wrong when he killed the victim, and asserts that therefore the only proper verdict would have been one of not guilty by reason of insanity, OCGA § 16-3-2.[3] We disagree.
"Georgia law presumes the sanity of an accused, but this presumption may be rebutted. OCGA § 16-2-3; Butler v. State, 252 Ga. 135 (311 SE2d 473) (1984); Durham v. State, 239 Ga. 697 (238 Ga. 334) (1977). Insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence. Brown v. State, 250 Ga. 66 (295 SE2d 727) (1982). `[B]ecause jurors are not bound by the opinions on sanity of either lay or expert witnesses, the jury may reject defense testimony on insanity even if uncontradicted; the presumption of sanity does not disappear upon the introduction of evidence *484 to the contrary and may be relied upon by the jury even after the introduction of evidence of insanity.' Id. at 71." Murray v. State, 253 Ga. 90, 91-92 (1) (317 SE2d 193) (1984).
In this case the jury was authorized by all the circumstances, including Adams' motive to kill the deceased (her interference in his friendship with Gene) and his utterances after the murder, to find that Adams was able to distinguish right from wrong when he killed Barbara Caldwell Hartline. We therefore conclude that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that Adams failed to prove by a preponderance of the evidence that he was insane at the time of the crime. Murray, supra. Accordingly, the superior court did not err by denying the motion for new trial.
2. In his second enumeration appellant contends that the court erred in instructing the jurors that the standard by which appellant's acts were to be judged was that of the conduct of a reasonable person. We find no error. Moses v. State, 245 Ga. 180 (2c) (263 SE2d 916) (1980).
3. Likewise, contrary to appellant's third enumeration, we find that the superior court correctly charged the jury that the defendant's inability to evaluate the quality and consequences of his acts to the same degree as a normal or average person would not excuse him if he was able to distinguish between right and wrong. Moses v. State, supra, 245 Ga. (2d).
4. In his fourth enumeration appellant argues that the court erred by giving the jury the following charge: "Now I charge you, Ladies and Gentlemen, under our law, every person is presumed to be of sound mind and discretion, but this presumption may be rebutted." We find no error. Brown v. State, supra, 250 Ga. (2).
Judgment affirmed. All the Justices concur.
NOTES
[1] The homicide occurred on June 29, 1984. Adams was indicted on August 8, 1984, by the grand jury of Chattooga County. On August 31, 1984, a trial jury returned a verdict of guilty but mentally ill, and the trial court sentenced Adams to life imprisonment. He moved for a new trial on October 1, 1984, which was denied November 26. Notice of appeal was filed December 11. On October 22, 1984, the court reporter certified the transcript, and it was filed with the clerk of the superior court November 20. The appeal was docketed in this court on January 7, 1985. On February 22, 1985, the appeal was submitted for decision without oral arguments.
[2] Barbara Caldwell and Gene Hartline had been legally married a short period of time. Apparently they had divorced, but were living together on June 29, 1984.
[3] OCGA § 16-3-2 provides that "a person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345772/ | 285 S.C. 449 (1985)
330 S.E.2d 319
Linda Joyce Tilley SANCHEZ, Respondent,
v.
Edward Douglas TILLEY, Appellant.
0466
Court of Appeals of South Carolina.
Heard March 28, 1985.
Decided May 14, 1985.
*450 Mary J. Wiesen-Kosinski, Aiken, for appellant.
Thomas P. Murphy, North Augusta, for respondent.
Heard March 28, 1985.
Decided May 14, 1985.
GARDNER, Judge:
Linda Joyce Tilley Sanchez (the ex-wife) brought this action against her ex-husband, Edward Douglas Tilley (the ex-husband) to obtain judgment for arrearages due under an oral separation contract. The case was tried by a trial judge without a jury; he awarded judgment in favor of the ex-wife. We affirm.
*451 FACTS
The parties had five children at the time of their separation (three of their own and two of the ex-husband's by a prior marriage). On July 28, 1980, they entered into a written separation contract. This comprehensive contract provided for a property division between the parties and provided that the wife would relinquish claim for alimony. It also provided that she would have custody of all five children and that the husband would pay the wife $750 per month child support. The contract also provided that all modifications had to be in writing.
Shortly after their first contract was executed, the ex-husband's two older children by a prior marriage moved into their father's home. As a result, the parties orally made a new contract that the ex-husband would pay only $450 per month support. He paid this amount from September 1980 through August 1981. From September 1981 to the time of the institution of this action, the ex-husband paid $250 per month as support for his three children by the ex-wife who had moved to Texas.
On appeal, the ex-husband argues (1) that the purpose of the child support, in the written contract, was frustrated when the two older children by a prior marriage returned to his home so that the doctrine of frustration excused further performance under the contract and (2) that the oral contract is invalid because the writing required modification to be made in writing and there was no consideration for the contract.
I.
The doctrine of frustration is defined in 17A C.J.S. Contracts Section 463(2) as follows:
Section 463(2). Doctrine of Frustration a. In General The doctrine of frustration, which is of relatively recent growth, excuses performance of a contract, in a proper case, where the purpose of the contract, or of the parties thereto, is frustrated by a supervening event, not readily foreseeable, without fault of the parties.
This doctrine, as applied to the separation contract before us, would apply only if the purpose of supporting the children *452 ended, as by the death or emancipation of the children; this is to be distinguished from obligation, viz., the husband's lack of ability or means to support his children. The purpose of the contract, i.e., the support his children. The of his children, still exists. We additionally hold that the return of the ex-husband's children by a prior marriage was foreseeable. This argument is rejected.
II.
The ex-husband next contends that because the original separation agreement contained a provision that any modification had to be in writing, the oral contract to reduce the support payments to $450 per month is unenforceable. This argument has no merit. A written contract may be orally modified by the parties even if the writing itself prohibited oral modification. Evatt v. Campbell, 234 S.C. 1, 106 S.E. (2d) 447 (1959). 17A C.J.S. Contracts Section 377(c).
III.
The ex-husband next contends there was no consideration for the oral contract. We reject this argument. A release from a legal contract is sufficient consideration for a promise to furnish support. 73 Am. Jur. (2d), Support of Persons, Section 5. A valuable consideration may consist either in some right interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss of responsibility given, suffered or undertaken by the other. Furman University v. Waller, et al., 124 S.C. 68, 117 S.E. 356 (1923). In the case before us, the ex-husband benefited by the oral contract and the ex-wife suffered a detriment. This argument is therefore rejected. The oral contract was an agreement between two competent persons to do a lawful act and it was based upon a lawful and recognized consideration. It is enforceable and we so hold.
For the foregoing reasons, the appealed order is affirmed.
Affirmed.
CURETON and GOOLSBY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345757/ | 330 S.E.2d 265 (1985)
Joe P. WOODLIEF, Sr. and Wife, Susan S. Woodlief, Joe P. Woodlief, Jr. and Wife, Mable Woodlief, Glenn Brayton Adams and Wife, Deborah Young Adams, Lillie Belle Jones, Everette C. Moore and Wife, Dorothy L. Moore, Emerson Disston Beecher, Jr., and Wife, Shirley Ann Beecher, James A. Stroud and Wife, Jo Ann Stroud, Donald Annas and Wife, Linda Annas, Wilma Pearce Underwood and Husband, Robert Rodney Underwood, C.B. Sorrell and Wife, Ruby Sorrell, Jimmy W. Watkins, Willie E. Averett, William V. Dodson, Gay Perry, Paul C. Jones and Wife, Peggy P. Jones, Joseph C. Bailey and Wife, Connie F. Bailey, Shirley L. Williams, Frances Q. Roberts, Leonard King, Clayton Ray Morton, Jimmy Jackson, David Grimes, Charles Leo Alford, Hubert Crabtree, and Victor E. Dillard
v.
Tony Lee JOHNSON, E.B. Flynt, Jack Firth, James Brown, Wade A. Harris, Lonnie Whitlow, Ottis S. Jackson, Milton Davis, Ronald Mercer, Oscar L. Huggins, James Averitte, Charles L. Anglin, III, Richard Girdwood, Belvin Strickland, Oscar Harris, Dr. Jay Howard, Robbie Caison, Hubert Davis, Milton Davis, Estate of Jack Brown, Howard Wilson, Donald W. Hoyle, James D. McPhail, Billy G. Strickland, Charles T. Weatherspoon, and Ann Cheatham.
No. 8413DC1002.
Court of Appeals of North Carolina.
June 4, 1985.
*267 Moore, Melvin & Wall by James R. Melvin and Alan I. Maynard, Elizabethtown, for plaintiffs-appellees.
Grady, Grady, & Greene by Gary A. Grady, Elizabethtown, for defendants-appellants.
EAGLES, Judge.
I
Defendants first assign as error the trial court's denial of their motion to dismiss pursuant to G.S. 1A-1, Rule 41 made at the close of plaintiffs' evidence and the trial court's findings of fact and conclusions of law that the 1956 deed recorded at Book 133, Page 502, Bladen County Registry, *268 creates an express grant of an easement to both plaintiffs and defendants over Godwin Street.
In a non-jury case, as here, after the plaintiff has rested his case, defendant may move pursuant to G.S. 1A-1, Rule 41(b) for a dismissal on the ground that upon the facts and the law plaintiff has shown no right to relief. Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973). The question presented is whether the plaintiff's evidence, taken as true, would support findings of fact upon which the trier of fact could properly base a judgment for the plaintiff. Our examination of the record in this case reveals sufficient evidence supporting the denial of the motion to dismiss and the trial court's findings of fact and conclusions of law that there was an express grant of an easement to both plaintiffs and defendants over Godwin Street. Where the trial judge sits as the trier of fact, his findings are conclusive upon appeal if supported by competent evidence, even though there may be evidence to the contrary. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E.2d 113 (1970), rev'd on other grounds, 279 N.C. 123, 181 S.E.2d 438 (1971).
The basis for defendants' first assignment of error is that the trial court lacked subject matter jurisdiction in this case and that the 1956 deed from the Godwins purporting to create a 30 foot easement from Highway 41 to the waters' edge did not constitute the grant of an express easement as a matter of law. We disagree.
It is well established that parties cannot by consent give a court subject matter jurisdiction which it does not have. State v. Fisher, 270 N.C. 315, 154 S.E.2d 333 (1967). Though the parties have consented to subject matter jurisdiction in the district court here, defendants contend that since the North Carolina Department of Natural Resources and Community Development has exclusive authority to develop rules and regulations for piers and boat ramps on State-owned White Lake, the plaintiffs should have first requested a declaratory ruling by the Department of Natural Resources and Community Development. While we agree with defendants' contentions as to the pier and boat ramp itself (an issue discussed infra), we do not agree that the district court lacked subject matter jurisdiction to determine the parties' rights in the easement in question over Godwin Street which is not State-owned. An action to obtain a judicial declaration of rights to an easement is authorized by our Declaratory Judgment Act and may be brought in the district court division, G.S. 1-262, G.S. 7A-242; see, Hubbard v. Josey, 267 N.C. 651, 148 S.E.2d 638 (1966); Carver v. Leatherwood, 230 N.C. 96, 52 S.E.2d 1 (1949). Accordingly, the district court had subject matter jurisdiction to determine the parties' rights in the easement in question from Highway 41 to the waters' edge of White Lake.
The trial court found as fact and concluded as law that the 1956 deed from the Godwins to certain named grantees and all present and future owners created an express grant of an easement. The express grant in a deed is an accepted method for creating easements in North Carolina. Hetrick, Webster's Real Estate Law in North Carolina, Section 311 (1981). The written instrument creating an easement by grant must describe with reasonable certainty the easement created and must also describe the dominant and servient tracts involved. Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973). The 1956 easement deed was stipulated into evidence and reveals that there is an express grant of
a perpetual right of easement of egress, ingress and regress over and upon that thirty foot strip of land to be used as a street running through the center of that certain tract of land heretofore conveyed... and recorded in Book 107 at page 605, and the said street to run in an eastwardly direction from Highway 41 to the western edge of White Lake; the northern edge of said street runs with the southern line of the Cecil R. Butler lot as recorded in Book 125 at page 331; the Southern edge of said stret runs with *269 the northern line of the W.H. Brown lot as recorded in Book 107 at page 362, and others.
This is a more detailed description of the location of an easement than that approved by our Supreme Court in Hensley v. Ramsey, supra, where the easement was described as "a right-of-way across the Duncan lot ... The location of the right-of-way is fixed as along the Langford (Lankford) line." 283 N.C. at 730, 199 S.E.2d at 10.
It is also clear from the face of the 1956 deed that the Godwins retained title to the thirty foot strip of land through the center of the tract later known as Godwin Street. It is that thirty foot tract that is the servient tract, the dominant tracts being all of those lots subdivided out of the original tract of land recorded in Book 107, page 17, Bladen County Registry. Additionally, we note that the trial court made a finding of fact that at the time of the conveyance of the easement on 25 October 1956, the Godwins held title to Godwin Street. That finding of fact is not contested on appeal. Accordingly, there was sufficient evidence from which the trial court could find and conclude that the easement deed adequately described the easement with reasonable certainty and described the dominant and servient tracts involved.
Defendants also argue that the deed from the Godwins creating the easement was never unconditionally accepted by plaintiff Woodliefs and is therefor invalid. We disagree. In North Carolina, acceptance is presumed if the conveyance is beneficial to the grantee even though he may have no knowledge of the transaction. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316 (1949). Here, all parties agreed that it was in their mutual interest to establish the easement for the common use of all present and future owners of the lots conveyed out of the original tract. This use is beneficial to the plaintiffs and acceptance must be presumed. Ballard v. Ballard, supra. We are aware that the presumption of delivery and acceptance does not apply if the deed is subject to a condition or otherwise imposes an obligation upon the grantee. Beaver v. Ledbetter, 269 N.C. 142, 152 S.E.2d 165 (1967). However, the deed in question is not subject to condition and does not, on its face, impose any obligation upon any grantee. We also cannot say that plaintiffs have breached the easement contract by the fact that a grocery store building sits squarely upon the easement on plaintiffs' land, nor can we say that the building's presence manifests an intent not to accept the benefits of the easement. We note that the building was in place in 1944, long before the easement deed of 1956. Under the facts of this case, it would be speculative to presume a non-acceptance of the easement by plaintiffs.
Based upon the record before us, we hold that there was sufficient evidence to withstand defendants' motion to dismiss pursuant to G.S. 1A-1, Rule 41 and sufficient evidence from which the trial court could find and conclude as a matter of law that the 1956 deed created "an express and perpetual easement of egress, ingress and regress over and upon that certain 30-foot strip of land known as Godwin Street."
II
Defendants next assign as error the trial court's findings of fact and conclusion of law that the pier at the end of Godwin Street was an extension of the Godwin Street easement. We agree that there was error.
While it is true that the pier was in existence at the time of the grant of the easement in 1956, the pier extends over State-owned White Lake. The North Carolina Department of Natural Resources and Community Development has the exclusive authority to develop rules and regulations and to issue permits for the construction and use of piers and boat ramps on White Lake. G.S. 113-8, G.S. 113-35, G.S. 146-13. As to the rights of the parties in the pier and boat ramp, original jurisdiction for a declaratory ruling rests in the North Carolina Department of Natural Resources and Community Development pursuant to the Administrative Procedure *270 Act, G.S. 150A-1, et seq. Plaintiffs did not pursue declaratory relief pursuant to G.S. 150A-17 and have failed to exhaust their administrative remedies prior to instituting this action. Wake County Hospital v. Industrial Commission, 8 N.C.App. 259, 174 S.E.2d 292 (1970). Accordingly, the trial court lacked subject matter jurisdiction to adjudicate the parties' rights and interests in the pier and boat ramp.
For the reasons herein stated, we affirm so much of the judgment of the district court which declares that the named parties both plaintiff and defendant and their successors in title are owners of a perpetual easement of egress, ingress and regress over and upon that certain 30-foot strip of land known as Godwin Street which extends from State Road 1515 to White Lake and that all parties are permanently restrained and enjoined from obstructing or interfering with the rights of any other party to Godwin Street. We reverse so much of the judgment of the district court which purports to adjudicate the parties' rights and interests in the pier located at the end of Godwin Street and extending over the waters of White Lake.
Defendants' remaining assignments of error are without merit.
Affirmed in part, reversed in part.
WHICHARD and JOHNSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345783/ | 330 S.E.2d 661 (1985)
STATE of North Carolina
v.
Deborah AUSTIN.
No. 845SC970.
Court of Appeals of North Carolina.
June 18, 1985.
*663 Atty. Gen. Rufus L. Edmisten by Charles H. Hobgood, Asst. Atty. Gen., Raleigh for the State.
Appellate Defender Adam Stein by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant-appellant.
PARKER, Judge.
I.
(Case No. 83CRS17818)
Although defendant was charged in a magistrate's order with misdemeanor larceny, the court instructed the jury in this case on concealment of merchandise. The jury found defendant "[g]uilty as charged," and the court entered judgment of conviction for misdemeanor larceny. This was clearly error as the court instructed the jury on the wrong offense. "Since a correct charge is a fundamental right of every accused ...," State v. Orr, 260 N.C. 177, 181, 132 S.E.2d 334, 337 (1963), the error was so prejudicial that defendant is entitled to a new trial on the charge of misdemeanor larceny.
II.
(Case No. 83CRS17819)
Defendant contends the court erred by proceeding to trial in her absence. The jury was selected in the defendant's presence, and the trial judge told defendant that her trial would proceed at 9:30 a.m. the next morning. At 9:37 a.m. the judge ordered the trial to proceed in her absence. Defendant did enter the courtroom later that morning, but offered no explanation for her absence. After a trial has commenced, the burden is on the defendant to explain his absence, State v. Stockton, 13 N.C.App. 287, 185 S.E.2d 459 (1971), and an unexplained absence is considered a voluntary waiver of the right to be present at trial. State v. Mulwee, 27 N.C.App. 366, 219 S.E.2d 304 (1975); State v. Stockton, supra. This assignment of error is overruled.
Next, defendant contends she was denied her right to effective assistance of counsel when her court-appointed attorney moved to withdraw in her absence, and because he was otherwise ineffective. Under the standards enunciated by the United States Supreme Court in Strickland v. Washington, ___ U.S. ___, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must show that counsel's performance was deficient, and that there is a reasonable probability that, but for counsel's inadequate representation, the result would have been different. Defendant herein has completely failed to carry her burden that a different outcome might have resulted, and, therefore, we need not address whether counsel's performance was deficient. ___ U.S. at ___, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. The assignment of error is overruled.
In her next assignment of error, defendant contends that the requirements of G.S. 14-72(a) were not met in two regards. First, that the State failed to establish that the value of the stolen property was "more than four hundred dollars," and second, that the jury should have been required to fix the value of the property stolen in their verdict form. We disagree.
Ms. Scearce offered a detailed account of the "approximate" number of different items she observed being stolen and *664 the retail value of each item, and she testified that the approximate total value of the goods taken was $596.00. In State v. Williams, 65 N.C.App. 373, 375, 309 S.E.2d 266, 267 (1983), pet.dis.rev. denied, 310 N.C. 480, 312 S.E.2d 890 (1984), this Court concluded: "We hold ... that where a merchant has determined a retail price of merchandise which he is willing to accept as the worth of the item offered for sale, such a price constitutes evidence of fair market value sufficient to survive a motion to dismiss." Therefore, Scearce's testimony, based on her observations as an employee of the store, was competent to establish the value of the goods stolen.
Defendant argues that because Scearce's testimony concerning the value of the items in 83CRS17818 appears to be mathematically incorrect (the correct total was $123.51, and not $161.00 as she testified), that her testimony is unreliable. This argument is without merit. This inconsistency goes to the witness' credibility but does not make her testimony unreliable. It was for the jury to resolve any lingering questions about the value of the stolen goods.
A jury should fix the value of the stolen property only in cases of doubt concerning value. State v. Jefferies, 41 N.C.App. 95, 254 S.E.2d 550, cert. denied, 297 N.C. 614, 257 S.E.2d 438 (1979). In the instant case, the jury was given a choice of not guilty, guilty of felonious larceny, or guilty of non-felonious larceny. If they were not satisfied beyond a reasonable doubt that the value of the stolen property exceeded $400.00, they could have found defendant guilty of non-felonious larceny. Finding defendant guilty of felonious larceny indicates their belief that the value of the property exceeded $400.00. This assignment of error is overruled.
Next, defendant contends the court erred in finding as a factor in aggravation that defendant had prior convictions punishable by more than sixty days confinement. This assignment of error was not set out in the record on appeal; it may not be considered on appeal. App.R. 10 (c).
In her final assignment of error, defendant asserts the court erred in imposing sentence of six years on the consolidated convictions of misdemeanor larceny and felony larceny in one judgment. We agree. Because there was error in the trial of the misdemeanor larceny charge and it is impossible to tell what portion of the judgment imposed is attributable to that charge, this case must be remanded for a resentencing hearing and entry of appropriate judgment on the felony conviction as well as for a new trial on the misdemeanor charge.
New Trial in 83CRS17818; Remanded for resentencing in 83CRS17819.
WEBB and BECTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2435891/ | 967 N.E.2d 501 (2008)
382 Ill. App. 3d 1219
359 Ill. Dec. 771
HAYNES
v.
AKZO NOBEL COATINGS, INC.
No. 3-07-0576.
Appellate Court of Illinois, Third District.
May 6, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750648/ | 952 So. 2d 1191 (2007)
ROBERTS
v.
STATE
No. SC06-2070
Supreme Court of Florida
February 23, 2007.
Decision without published opinion. All Writs dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345800/ | 789 P.2d 233 (1990)
In the Matter of R.J.W., a minor child.
K.L.W., Appellant,
v.
The STATE of Oklahoma and R.J.W., Appellees.
No. 73143.
Supreme Court of Oklahoma.
March 20, 1990.
Chris Economou, Tulsa, for appellant.
David L. Moss, Dist. Atty., William D. LaFortune, Asst. Dist. Atty., Tulsa, for appellee, State of Okl.
ALMA WILSON, Justice:
In the early morning hours of October 10, 1987, three-month-old J.K.W. died as a result of head injuries. Nine days later, the State of Oklahoma filed a petition alleging that his brother, fifteen-month-old R.J.W., was deprived. On the twentieth day of the month, the father of both boys was charged with first degree murder for the death of J.K.W. On January 6, 1988, R.J.W. was adjudicated as a deprived child as to the natural mother. The father was convicted of first degree manslaughter in a jury trial and a judgment and sentence was entered on April 19, 1988, sentencing him to fifty years' imprisonment.
A second amended petition was filed on March 31, 1989, requesting termination of the appellant's parental rights based upon his conviction in a criminal action for causing the death of a sibling of R.J.W., pursuant to the 1987 amendment of 10 O.S. § 1130(A)(6). See 1987 Okla. Sess. Laws ch. 95, § 1. During the hearing a radiologist interpreted x-rays of R.J.W. and testified that he had suffered skull fractures indicating either a car accident or child abuse. Without any prior adjudication of deprived in relation to the father, a jury found that his rights to R.J.W. should be terminated and the trial court entered an order based upon the verdict. The father now appeals to this Court based upon the single issue of the necessity of a prior or simultaneous adjudication of deprived in order to terminate a parent's rights to his child.
The appellant cites A.E. v. State, 743 P.2d 1041 (Okla. 1987) in support of his proposition that a prior or simultaneous adjudication of deprived is required by law before a parent's rights to his child may be terminated. The portion quoted is found on page 1043 of the opinion: "Any termination of parental rights pursuant to 10 O.S. 1981 § 1130 requires either a prior or a simultaneous adjudication of a child's deprived status; further, the prior adjudication must precede termination." In that case, a father's parental rights were extinguished for abandonment. The mother's parental rights were terminated for failure *234 to follow a contractual agreement drafted by a social worker for the Department of Institutions, Social & Rehabilitative Services. The Court of Appeals affirmed but this Court granted certiorari and reversed based partially upon the absence of a prior adjudication of the child's deprived status.
The quoted portion of A.E. cites the five following cases to support the holding. In Davis v. Davis, 708 P.2d 1102, 1109 (Okla. 1985), this Court reversed the termination of a father's parental rights, brought by the mother, for withholding child support for over one year. In Matter of Lyni P., 626 P.2d 864, 866 (Okla. 1981), this Court reversed the termination of parental rights of a mother who had physically abused her child (but see Matter of Jerry L., 662 P.2d 1372, 1374 [Okla. 1983] which overruled Lyni P.). In Matter of Christopher H., 577 P.2d 1292, 1293 (Okla. 1978), this Court reversed the termination of parental rights of a mother whose child had been previously adjudicated deprived/neglected due to her mental institutionalization and inability to care for him, but whose termination proceeding was based upon other grounds. In Matter of J.F.C., 577 P.2d 1300, 1302 (Okla. 1978), this Court reversed the termination of a mother's parental rights in six children because no standards of conduct had been set from the time of the prior adjudication which the mother could follow. Finally, in Price v. Price, 573 P.2d 251, 254-55 (Okla. 1977) two concurring specially opinions are cited where the Court reversed the termination of a father's parental rights in favor of the paternal grandparents because the evidence was insufficient to show that the children were either dependent or neglected.
Although these cases support prior or simultaneous adjudication of a child's deprived status, none have the same fact situation as the case at bar, and none construe the 1987 amendment to § 1130. The rationale behind the rule found in the cases cited above is to allow the parent an opportunity to correct the behavior which caused the state to intervene in the parent/child relationship. But as Matter of Jerry L. held:
[W]hen the trial court finds the act of physical abuse so serious and of such an extreme nature that it must remove the child from the custody of the parents, it may then entertain a petition to terminate parental rights. To hold that the trial court may remove a child from the home under a petition alleging the child is deprived, but may not terminate parental rights until a second act of abuse occurs, is an effort in futility: a second such act normally should not occur with the child in a foster home under custody of the Department of Human Services.
Matter of Jerry L., 662 P.2d at 1374. The parent is not given a second opportunity to seriously abuse the child.
Although some of the wording remained the same in the 1987 amendment, several significant changes were made in the statute. That amendment lists eight situations allowing for the termination of parental rights. The cases of A.E., Davis, Matter of Lyni P., and Matter of Jerry L. all construe the 1977 amendment to § 1130, which listed five situations allowing for termination of parental rights. 1977 Okla. Sess. Laws, ch. 259, § 17. Not only were new situations added, but three situations specifically list the necessity of a finding that a child is deprived before the rights can be terminated. Five situations do not mention the necessity of a deprived status before termination. One of those five situations is subsection (A)(6) which provides:
A. The finding that a child is delinquent, in need of supervision or deprived shall not deprive the parents of the child of their parental rights, but a court may terminate the rights of a parent to a child in the following situations:
* * * * * *
6. A conviction in a criminal action that the parent has caused the death of a sibling of the child as a result of the physical or sexual abuse or chronic neglect of such sibling... .
In contrast, subparagraph 3 of subsection A provides:
3. A finding that:
*235 a. the child is deprived, as defined in this chapter, and [Emphasis added.]
b. such condition is caused by or contributed to by acts or omissions of his parent, and
c. termination of parental rights is in the best interests of the child, and
d. the parent has failed to show that the condition which led to the making of said finding has not been corrected although the parent has been given three (3) months to correct the condition; provided, that the parent shall be given notice of any hearing to determine if the condition has been corrected. The court may extend the time in which such parent may show the condition has been corrected, if, in the judgment of the court, such extension of time would be in the best interest of the child. During the period that the parent has to correct the condition the court may return the child to the custody of its parent or guardian, subject to any conditions which it may wish to impose or the court may place the child with an individual or an agency... .
Three of the subparagraphs of § 1130(A) specifically require a prior finding of deprivation before the parental rights can be terminated. Under subparagraph 5, there must be either a conviction in a criminal action for child abuse "or a finding in a deprived child action" that the child has been abused by the parent before an abusive parent's rights may be terminated. If prior case law still applied, the insertion of the requirement of an adjudication of deprived prior to termination of parental rights would be redundant. Clearly, the legislature, as shown by the amended wording, intended to change the law and require a prior deprivation hearing in limited cases only.
One of the situations which does not require a prior adjudication of the child as deprived is where the parent is convicted in a criminal action for causing the death of a sibling as a result of physical abuse. That fact situation fits the case at bar. The appellant was convicted and sentenced for "Manslaughter I" and sentenced to fifty years as shown by State's Exhibit # 8, the certified copy of the judgment and sentence. Pursuant to the 1987 amendment of § 1130(A)(6), a jury in a juvenile action found that he had been convicted and that his parental rights should be terminated. A prior adjudication of a deprived status of R.J.W. is simply not contemplated in the statute.
Finally, the appellant makes a brief argument that his due process rights were violated by the procedure followed by the court in the case at bar, but other than the fact that he incorrectly believes that he was entitled to a prior adjudication of deprived for R.J.W., he does not cite how any of his other rights were violated and we do not find any due process violations. Accordingly, the judgment of the trial court is AFFIRMED.
HARGRAVE, C.J., and HODGES, LAVENDER, DOOLIN, KAUGER and SUMMERS, JJ., concur.
OPALA, V.C.J., concurs in result.
SIMMS, J., concurs in judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345809/ | 174 Ga. App. 460 (1985)
330 S.E.2d 397
MOORE
v.
THE STATE.
69785.
Court of Appeals of Georgia.
Decided April 2, 1985.
William T. Winder, for appellant.
Timothy G. Madison, District Attorney, T. David Motes, Assistant District Attorney, for appellee.
SOGNIER, Judge.
Appellant was convicted of armed robbery and enumerates 14 errors on appeal. Twelve of the 14 enumerations relate to matters raised in an oral motion to dismiss the charge made by appellant pro se. The record fails to support these several grounds and this court cannot consider factual representations in a brief which do not appear in the record. Gray v. State, 156 Ga. App. 117, 119 (3) (274 SE2d 115) (1980). Hence, we will consider only appellant's enumerations of error on the general grounds and his allegation relating to ineffective assistance of counsel.
1. Appellant and William Watson decided to rob a convenience store. Watson parked his car nearby, gave appellant a gun and waited in the car while appellant entered the store and robbed the cashier at gunpoint. The cashier called the police and appellant and Watson were apprehended about three hours later. Appellant was identified positively as the robber when he was taken back to the store, and was also identified in court. Appellant made a voluntary confession to the robbery after being advised fully of his rights. Watson also testified for the State and implicated appellant as a participant in the robbery. This evidence is more than sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).
2. Appellant contends he was denied effective assistance of counsel because of his counsel's trial tactics.
We have examined the entire record and transcript and find that appellant's counsel negotiated a favorable pretrial agreement which appellant rejected; conducted extensive and appropriate cross-examination of State witnesses; presented three witnesses on appellant's behalf, in addition to appellant's testimony; and made an opening statement and closing argument. Considering the overwhelming evidence against appellant, including positive identification and appellant's confession, his attorney did an excellent job in representing appellant. The effectiveness of counsel cannot be fairly measured by the result of a criminal trial or appeal, but upon the reasonable effectiveness of counsel at the time the services were rendered. Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974). Although appellant complains of the way his case was tried by his counsel, errors of judgment and tactical errors do not constitute denial of effective assistance of counsel. Bishop v. State, 155 Ga. App. 611, 615-616 (2d) (271 SE2d 743) *461 (1980). Hence, this enumeration of error is without merit.
Judgment affirmed. Birdsong, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264340/ | 14 Cal.App.4th 1047 (1993)
18 Cal. Rptr.2d 100
LONG BEACH COMMUNITY REDEVELOPMENT AGENCY, Plaintiff and Respondent,
v.
DAVID MORGAN et al., Defendants and Appellants.
Docket No. B061614.
Court of Appeals of California, Second District, Division Five.
March 31, 1993.
*1048 COUNSEL
James Morgan and David Morgan, in pro. per., for Defendants and Appellants.
John R. Calhoun, City Attorney, Hahn & Hahn, David K. Robinson and Charles J. Greaves for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
*1049 OPINION
GRIGNON, J.
Appellants David Morgan and James Morgan seek to reverse a judgment, following an eminent domain trial, in favor of respondent Long Beach Community Redevelopment Agency (the Agency). The judgment determined that the Agency had a right to lawfully take appellants' property by eminent domain and fixed the amount of compensation at $193,000. Appellants maintain that: the Agency's governing body did not adopt the requisite resolution of necessity and, therefore, the trial court failed to obtain jurisdiction in the matter; the Agency may not condemn for redevelopment purposes because such right was not reserved in a federal patent proceeding; and their constitutional and statutory rights were violated. In the published portion of this opinion, we conclude the resolution of necessity, which is a precondition to an eminent domain proceeding, was adopted by the governing body of the Agency within the meaning of Code of Civil Procedure sections 1245.210 and 1245.220. In the unpublished portion of this opinion, we resolve the remaining issues and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
The record reveals the following facts. The subject property is located in downtown Long Beach. The Agency was created in October 1961, by the Long Beach City Council (the City Council) pursuant to Health and Safety Code section 33100 et seq. (the Community Redevelopment Law). On June 17, 1975, the City Council enacted an ordinance by which the Agency's Long Beach Downtown Redevelopment Plan (the Plan) was adopted. The ordinance recited that the purpose of the Plan was to "eliminate the conditions of blight existing in the project area" and the "project area is a blighted area, the redevelopment of which is necessary to effectuate the public purposes declared in the Community Redevelopment Law of the State of California." The Plan anticipated that the central business district of the project area would be redeveloped to include, among other projects, a regional shopping center, city hall, county building and museum of art.
On February 27, 1989, the Agency's board of commissioners enacted a resolution of necessity authorizing the Agency to commence an eminent domain action to acquire certain property in the project area (including the subject property). The Agency filed its complaint in eminent domain on June 1, 1989. At the time the complaint was filed, the subject property was owned by numerous individuals and organizations. However, by the time of the trial which gives rise to this appeal, only appellants had not sold their 16.99387 percent interest in the subject property to the Agency.
*1050 The first pretrial conference was held on June 15, 1990. The trial court issued a pretrial conference order setting a trial date and establishing a discovery cutoff date of August 15, 1990. The pretrial conference order also required the parties to exchange valuation data, including appraisals of the subject property. Appellants unsuccessfully moved for a continuance of the trial. Appellants then failed to exchange valuation data as required by the pretrial order. As a result, the trial court issued an order prohibiting appellants from presenting valuation evidence at trial.
After considerable pretrial litigation,[1] the first phase of trial on the "right to take" issue was conducted over three days beginning on November 26, 1990. On February 15, 1991, the trial court entered its order on appellants' objection to right to take and found that the Agency "has the right to acquire [the subject property] by eminent domain." Appellants' motions for new trial and "dismissal" were denied. On June 10, 1991, the valuation phase of the trial was conducted. It appears from the record that appellant James Morgan failed to appear and appellant David Morgan left the proceedings prior to the presentation of evidence. Based solely upon valuation evidence provided by the Agency, the trial court valued appellants' interest in the subject real property at $193,000.
Prior to trial, the Agency had made an ex parte application for prejudgment possession of appellants' fractional interest in the subject property pursuant to section 1255.410 of the Code of Civil Procedure. That application was granted on the date of application and was served on appellants. Appellants were unsuccessful in their April 5, 1990, motion to vacate or stay the prejudgment possession order.
The judgment and final order of condemnation after trial was entered on July 9, 1991. Appellants' motion to vacate the judgment was denied on August 14, 1991. This appeal followed.
*1051 DISCUSSION
I. Timeliness of Appeal[*]
.... .... .... .... .... .... .... .
II. Resolution of Necessity
(1a) In what appears to be a case of first impression, we must determine whether the Agency's board of commissioners or the City Council is the "governing body" of the Agency for purposes of Code of Civil Procedure sections 1245.210 and 1245.220, which require the governing body of a public entity to adopt a resolution of necessity prior to the commencement of an eminent domain proceeding. In order to make this determination, we must first set forth the applicable provisions of the Community Redevelopment Law and the Eminent Domain Law.
A. Community Redevelopment Law
California's Community Redevelopment Law is found at section 33000 et seq. of the Health and Safety Code. The legislative findings which underpin the state's Community Redevelopment Law are recited at section 33250 of the Health and Safety Code: "The Legislature hereby finds ... that there exist in areas of this state residential, nonresidential, commercial, industrial or vacant areas, and combinations thereof, which are slum or blighted, ... which hamper or impede proper economic development of such areas and which impair or arrest the sound growth of the area...." The Legislature also found that there is a "serious need throughout the state for adequate educational, recreational, cultural and other community facilities ... and... [¶] a seriously inadequate supply of safe and sanitary dwelling[s]...." (Health & Saf. Code, § 33250; see also, id. at § 33030, "[T]here exist in many communities blighted areas which constitute either physical, social, or economic liabilities or both, requiring redevelopment in the interest of the health, safety, and general welfare of the people of such communities and of the state.")[2]
As a result of these findings, the Legislature declared that it is the policy of this state "to promote the sound growth and development of urban areas *1052 and new communities through the correction of substandard, insanitary, blighted, deteriorating conditions, by the clearance, replanning, reconstruction, redevelopment, rehabilitation, restoration, conservation or proper planning of such areas ... reasonably accessible thereto and by the undertaking of public and private improvement programs relating thereto." (Health & Saf. Code, § 33251.)
"There is in each community a public body, corporate and politic, known as the redevelopment agency." (Health & Saf. Code, § 33100.) The term "community" includes a city. (Id. at § 33002.) The need for a redevelopment agency in a city may be declared by the legislative body of the city. (Id. at § 33101.) The legislative body of a city is generally its city council. (Id. at § 33007.) When a city council adopts an ordinance declaring the need for a redevelopment agency in the city, the city council may establish itself as the redevelopment agency or it may establish a separate redevelopment agency. (Id. at §§ 33003, 33110, 33200.) If the city council declares itself to be the redevelopment agency, the city council is the governing board of the redevelopment agency. (Id. at § 33200.) If the city council establishes a separate redevelopment agency, it appoints five to seven members to act as the governing board of the redevelopment agency. (Id. at § 33110.)[3]
In order to engage in redevelopment activities, a city must comply with the requirements of the Community Redevelopment Law. The city council or the city planning commission adopts a general plan for the city. (Health & Saf. Code, § 33302.) The city council authorizes the designation of survey areas; this duty may be delegated to the planning commission or the redevelopment agency. (Id. at § 33310.) The planning commission, with the cooperation of the redevelopment agency, designates as project areas those survey areas which are blighted and whose redevelopment is necessary to eliminate that blight. (Id. at §§ 33320.1, 33322, 33323.) The planning commission, with the cooperation of the redevelopment agency, formulates a preliminary plan for the redevelopment of each project area. (Ibid.) The planning commission submits the preliminary plan to the redevelopment agency. (Id. at § 33325.)
The redevelopment agency prepares and approves, after public hearing, a redevelopment plan. (Health & Saf. Code, § 33330.) Redevelopment plans may provide for the redevelopment agency to acquire real property in the project area by condemnation. (Id. at § 33342.) Owners of property in the *1053 project area subject to condemnation under the redevelopment plan must be notified. (Id. at § 33350.) The redevelopment agency submits the redevelopment plan to the planning commission for its report and recommendation. (Id. at § 33346.) The redevelopment agency submits the redevelopment plan to the city council. (Id. at § 33351.) After a public hearing, the city council adopts the redevelopment plan. (Id. at § 33364.) The city council and the redevelopment agency may hold joint public hearings. (Id. at § 33355.) If the city council is the redevelopment agency, the city council may adopt the redevelopment plan without any further action by the redevelopment agency. (Id. at § 33359.)
After the redevelopment plan is adopted by the city council, the redevelopment agency is responsible for implementing the plan. (Health & Saf. Code, § 33372.) A redevelopment agency may sue and be sued, have a seal, make and execute contracts and other instruments necessary or convenient to the exercise of its powers, and make, amend and repeal bylaws and regulations not inconsistent with, and to carry into effect, the powers and purposes of the Community Redevelopment Law. (Id. at § 33125.) The redevelopment agency may acquire real property within the project area for purposes of redevelopment by eminent domain. (Id. at § 33391.) A redevelopment agency may adopt a resolution of necessity declaring the public necessity for the condemnation of a particular parcel of real property. (See id. at § 33398.) If the redevelopment agency acquires property from certain funds, the sale or lease of such property by the redevelopment agency must first be approved by the city council after public hearing. (Id. at § 33434; Nolan v. Redevelopment Agency (1981) 117 Cal. App.3d 494 [172 Cal. Rptr. 797].)
The redevelopment agency must comply with certain procedural requirements forth in the Code of Civil Procedure, before condemning real property. We next set forth those requirements.
B. Eminent Domain Law
California's Eminent Domain Law is found at section 1230.010 et seq. of the Code of Civil Procedure. (2) The power of eminent domain is inherent in sovereignty, and a state or subsidiary thereof may exercise that power pursuant to legislative authority. (People v. Superior Court (1937) 10 Cal.2d 288 [72 P.2d 1221].) The power of eminent domain may only be exercised for a public use. (Code Civ. Proc., § 1240.010.) However, where the Legislature provides by statute that a purpose is one for which eminent domain may be exercised, such action is deemed to constitute a declaration by the Legislature that such purpose is a public use. (Ibid.) "`A legislatively authorized taking will be upheld if the taking is for a use which concerns the whole community or promotes the general interest in its relation to any *1054 legitimate object of government.'" (Cal. Law Revision Com. com., 19 West's Ann. Code Civ. Proc. (1975 ed.) § 1240.010, p. 503, quoting Bauer v. County of Ventura (1955) 45 Cal.2d 276, 284 [289 P.2d 1].)
The power of eminent domain may be exercised to acquire property only by a person authorized by statute to exercise the power of eminent domain. (Code Civ. Proc., § 1240.020.) Such power may be exercised only if: (1) the public interest and necessity require the project; (2) the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (3) the property sought to be acquired is necessary for the project. (Id. at § 1240.030.) A "public entity" may exercise the power of eminent domain "only if it has adopted a resolution of necessity" which meets the requirements of section 1245.210 et seq. of the Code of Civil Procedure. (Id. at § 1240.040.) The resolution of necessity must be adopted by the "governing body" of the public entity attempting to exercise its eminent domain powers. (Id. at § 1245.220.) A resolution of necessity is "an administrative determination that the statutory prerequisites for taking particular property have been met." (Cal. Law Revision Com. com., 19 West's Ann. Code Civ. Proc. (1975 ed.) § 1245.230, p. 581.)
Section 1245.210 of the Code of Civil Procedure defines "governing body" as, "[i]n the case of a taking by a local public entity, the legislative body of the local public entity." A local public entity is any public entity other than the state. (Code Civ. Proc., § 1235.150.) A public entity includes "the state, a county, city, district, public authority, public agency, and any other political subdivision in the state." (Id. at § 1235.190.) "Legislative body" is not further defined in the Eminent Domain Law, but the legislative bodies of local public entities are specified in the statutes governing such entities. (Legis. committee com., 19 West's Ann. Code Civ. Proc. (1982 ed.) § 1245.210, p. 577.)
A resolution of necessity must be approved by a two-thirds vote of members of the governing body of the public entity (Code Civ. Proc., § 1245.240) and notice must be given of a public hearing on the resolution. (Id. at § 1245.235). A person having an interest in the property subject to a resolution of necessity may challenge that resolution by writ of mandate prior to commencement of an eminent domain proceeding or by objection to the right to take if the proceeding has been commenced. (Id. at § 1245.255.)
C. Who Must Adopt the Resolution of Necessity of a Redevelopment Agency?
(1b) Appellants contend the trial court erred in finding that the Agency could lawfully take the subject property by eminent domain, since no *1055 resolution of necessity had been adopted by the City Council. Appellants concede that such a resolution was passed by the Agency's Board of Commissioners. Appellants contend, however, that, pursuant to sections 1245.210 and 1245.220 of the Code of Civil Procedure, such a resolution must be enacted by the "governing body" of the "public entity" attempting to exercise eminent domain powers and that the "governing body" of the Agency is its legislative body, the City Council.
Appellants reach this conclusion by grafting the definition of "legislative body" found in the Community Redevelopment Law onto the procedural requirements found in the Eminent Domain Law. It is clear that the "legislative body" of a California city is its city council, both for purposes of the Community Redevelopment Law contained in the Health and Safety Code and for purposes of the Eminent Domain Law contained in the Code of Civil Procedure. It is also self-evident that where a city council acts as a redevelopment agency, the city council is the legislative body of the redevelopment agency. We conclude, however, that where a separate redevelopment agency has been established, the members of the redevelopment agency constitute its governing board and legislative body.
The Legislature did not intend the definition of "legislative body," found in the Community Redevelopment Law, to be used to define the term "governing body," as used in the Eminent Domain Law. In fact, the Legislature chose expressly to define the term "governing body" in the Eminent Domain Law itself. (Code Civ. Proc., § 1245.210.) Code of Civil Procedure section 1245.210 defines "governing body" as the "legislative body" of the "local public entity." The local public entity which is acting in eminent domain in this matter is the Agency, not the City of Long Beach itself. (Pacific States Enterprises, Inc. v. City of Coachella (1993) 13 Cal. App.4th 1414, 1422-1425 [17 Cal. Rptr.2d 68] [even where city council acts as redevelopment agency, the two are separate and distinct legal entities].)[4] Further, the legislative body described in the Health and Safety Code is the legislative body of the "community" (in this case the city) not the "local public entity" (in this case the redevelopment agency). A local public entity may be a community, i.e., a political subdivision of the state such as a county, city, or town, or it may be a local agency, department or commission, or other "entity" entitled to proceed in eminent domain. Thus, the cited provisions of the Eminent Domain Law apply to a much broader class of *1056 "entities" than the Community Redevelopment Law provisions, which apply only to "legislative bodies" or "agencies."
The Community Redevelopment Law envisions that redevelopment activities may be undertaken either by the "legislative body" of the community or by a separate "redevelopment agency" established by the legislative body. In the latter instance, the legislative body appoints members of the redevelopment agency and delegates to the redevelopment agency the eminent domain powers which have been delegated to the community by the Legislature. Other related powers are also delegated to the redevelopment agency. For example, the redevelopment agency may sue and be sued, make and execute contracts and "other instruments necessary or convenient to the exercise of its powers" and make, amend, or repeal bylaws and regulations. (Health & Saf. Code, § 33125.)
The Legislature, in using the terms "legislative body" and "agency," was distinguishing between the two broad species of redevelopment authorities. The Community Redevelopment Law is replete with distinctions between the two entities. For example, both the redevelopment agency and the legislative body must separately approve a redevelopment plan where a separate redevelopment agency has been established and the legislative body must approve certain sales or leases of property by the redevelopment agency. We therefore conclude that the definition of "legislative body" found in the Health and Safety Code was not intended to be used to define the term "governing body" used in the Code of Civil Procedure as applied to takings by a separate redevelopment agency. This conclusion is also compelled by the broad grant of redevelopment powers by a city council to its redevelopment agency, including the power of eminent domain, which has clearly been authorized by the Legislature. It would be incompatible with this broad scheme of delegated power to require that, at the time of exercise of eminent domain powers by a redevelopment agency, such agency must return to the city council to request that a resolution of necessity be enacted.[5]
Appellants' only authority is the case of Nolan v. Redevelopment Agency, supra, 117 Cal. App.3d 494, which involved the unauthorized sale of redevelopment agency-owned property and not the exercise of eminent domain powers. In Nolan, the city council was itself acting as the redevelopment agency. Despite the broad delegation of powers to a redevelopment agency authorized by the Community Redevelopment Law, the Legislature has *1057 provided in Health and Safety Code section 33434 that in the case of sales of redevelopment agency property, purchased in whole or in part from the redevelopment agency's revolving fund, such sales must first be approved by the legislative body of the community after public hearing. The Nolan decision involves the sole issue whether the redevelopment agency in that case complied with section 33434 of the Health and Safety Code, and does not speak to the issue before this court. The Nolan court stated, in dictum, that in the case of such a sale of property owned by a separate redevelopment agency the city council must pre-approve the sale. Since this case does not involve the sale of redevelopment agency property, even Nolan's dictum is inapplicable to the facts of this case. Furthermore, Nolan's observation that "no such distinction exists" (117 Cal. App.3d at p. 501) between the city council and the city council acting in the capacity of the redevelopment agency has been roundly criticized in Pacific States Enterprises, Inc. v. City of Coachella, supra, 13 Cal. App.4th at pages 1422-1425. (Italics added.)
Inasmuch as appellants concede that a resolution of necessity was enacted by the Agency, we conclude that the trial court did not err in finding that the Agency was lawfully empowered to take the subject property by eminent domain.
III., IV.[*]
.... .... .... .... .... .... .... .
DISPOSITION
The judgment is affirmed. Appellants shall bear respondent's costs on appeal.
Turner, P.J., and Armstrong, J., concurred.
A petition for a rehearing was denied April 27, 1993.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, III and IV.
[1] In anticipation of the eminent domain action, appellants filed, but did not serve, an action in the East District of the Superior Court on March 31, 1989. After the filing of the Agency's eminent domain action in the Central District, appellants filed a first amended complaint in the East District. The Agency's motion to dismiss this action was granted, and the matter was dismissed pursuant to Code of Civil Procedure section 1245.255, subdivision (a)(1) on February 27, 1990. That order of dismissal was affirmed on appeal by this District.
In the eminent domain action, appellants also cross-complained for declaratory relief contending, inter alia, that their constitutional rights had been violated. The Agency's demurrers to the cross-complaint were sustained, appellants filed an amended cross-complaint, and the Agency's demurrers to the amended pleading were sustained without leave to amend. An appeal from the dismissal of the cross-complaint was dismissed by this district on the ground there was no final judgment.
[2] Blighted areas are characterized by unsafe buildings (Health & Saf. Code, § 33031), faulty urban planning (id. at § 33032), depreciated values and inadequate tax receipts (id. at former § 33033), unproductive conditions of land and loss of population (id. at former § 33034), threats to the public health and safety of the residents (id. at § 33035), and injury to the private landowners (id. at § 33036).
[3] The establishment of a separate governing board is infrequent. In 1989, only 13 of 349 communities with redevelopment agencies had established separate governing boards. (David F. Beatty et al., Redevelopment in California (1991) p. 17.)
[4] "Well-established and well-recognized case law holds that the mere fact that the same body of officers acts as the legislative body of two different governmental entities does not mean that the two different governmental entities are, in actuality, one and the same." (Pacific States Enterprises, Inc. v. City of Coachella, supra, at p. 1424, italics in original.)
[5] This interpretation of the statutory scheme has been adopted by at least some commentators. See, e.g., David F. Beatty et al., Redevelopment in California, supra, at page 107 and Condemnation Practice in California (Cont.Ed.Bar 1992) page 127.
[*] See footnote, ante, page 1047. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345785/ | 174 Ga. App. 525 (1985)
330 S.E.2d 753
SPENCER et al.
v.
McCARLEY MOVING & STORAGE COMPANY, INC. et al.
69548.
Court of Appeals of Georgia.
Decided April 10, 1985.
John D. Allen, for appellants.
Forrest L. Champion, Jr., for appellees.
BEASLEY, Judge.
This is an appeal from the grants of summary judgment to defendants in a suit charging racial discrimination in employment practices.
On July 21, 1983, the plaintiffs, eight black males, filed suit for injunctive relief and damages against United Van Lines ("United"), McCarley Moving & Storage Co., Inc., ("McCarley, Inc.") and Price McCarley as its president and principal officer, alleging, inter alia, that white drivers employed with McCarley Moving & Storage Co., Inc. were placed in higher paying driving jobs, that the company paid overtime selectively to whites, and in other ways, gave more favorable work conditions to white drivers, in violation of the Constitutions of the United States and of our State and of 42 USC § 1981, which provides for equal rights under the law. In addition, appellant plaintiffs alleged that the appellee defendants deprived them of overtime pay and wilfully and maliciously converted these funds to their own use. During the course of proceedings in the trial court, appellants abandoned any initial effort to have the action certified as a class suit.
The defendants filed motions for summary judgment. After hearing and the filing of supplemental affidavits and briefs by the parties, the trial court granted summary judgment to each defendant. Plaintiffs appeal. Held:
1. Appellants' three enumerations of error collectively contend that the trial court erred in the grants of summary judgment as to all defendants.
The third enumeration alleges that the court erroneously granted summary judgment to McCarley, Inc. The question is whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Dunbar v. Green, 229 Ga. 829, 830 (194 SE2d 435) (1972), appeal after remand, 232 Ga. 188 (205 SE2d 854) (1974). No material issue of fact remains as to any actionable tortious conduct by the company by virtue of a violation of 42 USC § 1981; the pleadings have been pierced.
The gravamen of appellants' argument is that because of race they were denied employment as "Long-haul" or permanent lease commission drivers for the company and instead were hired as "short-haul" drivers, that they endured less favorable work conditions, including lower pay and salaried income rather than pay by commission. *526 Also, appellants claim they were never considered for the position of warehouse manager.
An individual invoking 42 USC § 1981 who claims he is the victim of a racially discriminatory hiring decision must show (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that despite his qualifications he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applicants from persons of complaint's qualifications. McDonnell Doughlas Corp. v. Green, 411 U.S. 792, 802 (93 SC 1817, 1824, 36 LE2d 668) (1973); Scarlett v. Seaboard Coast Line R. Co., 676 F2d 1043, 1052 (1982).
The company demonstrated through deposition and affidavits that no issue of material fact remained as to these elements.
In his deposition taken on September 30, 1983, Price McCarley was asked whether or not any blacks had applied to his company for the status of long-haul driver in the last five years. McCarley responded that Early Dunklin was the only black person who had so applied. [1] Of the eight named plaintiffs, only Rutledge, Spencer, Moultrie, Brown, and Hollis filed initial affidavits in opposition to the motions. Nowhere in these affidavits do the parties state that McCarley's company had been seeking applicants for the position of long-haul or commissioned drivers, that they had applied for such openings, that they were qualified for the vacancies, that their applications had been rejected, that the positions sought remained open, and that the company continued to seek applicants from persons with their qualifications.
In his supplementary affidavit of May 23, 1984, McCarley averred, among other things, that plaintiff Brown never applied to take the test to become a long-distance driver and that he lacked the necessary background to be a long-haul driver; that plaintiff Eddie Ford never applied to take the necessary test, had no experience in driving tractor trailers, and had indicated to McCarley on numerous occasions that he did not desire to be away from home for the extended time required of long-distance drivers; that plaintiff Hollis lacked the required experience to drive a tractor trailer and had never applied to take the necessary tests; that plaintiff Spencer likewise lacked required experience and never applied to take the test; that plaintiff Moultrie never applied to become a long-distance driver; that plaintiff Lewis had no driver's license and had never applied to become a driver; that plaintiff Rutledge had no driver's license and had *527 not applied for the position of driver; and that plaintiff Robert Lee Ford also was without a driver's license and had not applied for the subject position of driver. The affidavit continued that "the employment of one to become a long-distance tractor-trailer driver taking long-distance dispatch orders from United under contract is entirely different from a short-haul driver driving a 4-wheel van taking short-haul dispatch orders from McCarley, Inc. It is not a matter of promotion of employees similarly situated within a class; but, instead is a matter of advancement to a different class of employees."
In a later supplemental affidavit, McCarley reiterated the lack of qualifications of Spencer, Moultrie, and Hollis and discussed the requirements for long-distance drivers, stating: "After a person becomes a short-haul driver, in order to become a permanent lease driver, he must attend a van operator's workshop that is required by United, in order to become qualified to be recommended as a permanent lease long distance over the road driver." Only Moultrie, Hollis, and Spencer filed supplemental affidavits, which stated in effect that they had requested the position of long-distance driver, were qualified and had been denied the position. They never stated that they had applied for any actual vacancies or that they had attempted to qualify for the desired position by applying to take the "van operator's workshop" sworn by McCarley to be a mandatory qualification for the position.
Furthermore, none of the plaintiffs pled the elements necessary for a cause of action under 42 USC § 1981 in regard to the position of warehouse manager. See McDonnell Douglas Corp. v. Green and Scarlett v. Seaboard Coast Line R. Co., supra.
If a prima facie showing is made that the moving party in summary judgment is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence at that time or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177 (236 SE2d 357) (1977). The plaintiffs did not rebut the showing that as to McCarley Moving & Storage Co., Inc., there was no actionable tort based on a violation of 42 USC § 1981.
Appellants also argue that the company was guilty of tortious conduct by violating the equal protection provisions of the State and Federal Constitutions.
Whereas no state action is required to invoke the protections of 42 USC § 1981 (see, e.g., Gonzales v. Fairfax-Brewster School, 363 FSupp. 1200 (1973), aff'd in part and rev'd in part on other grounds 515 F2d 1082 (1975), aff'd 427 U.S. 160 (96 SC 2586, 49 LE2d 415) (1976), such is not the case in an equal protection claim under either the State or Federal Constitutions. In the past, our State Constitution's "equal protection" provisions, through employing different phraseology than than the fourteenth amendment of the United States Constitution, have been held to be substantially equivalent to the equal *528 protection of the laws under the Constitution of the United States. McDaniel v. Thomas, 248 Ga. 632 (285 SE2d 156) (1981). The fourteenth amendment applies only when there is state action (Graves v. Walton County Bd. of Education, 300 FSupp. 188 (1968), aff'd., 410 F2d 1152, 1153 (1969); Jewell v. City of Covington, 425 F2d 459 (1970), cert. denied, 400 U.S. 929 (91 SC 195, 27 LE2d 189) (1970), and protects individuals against state action, not against wrongs done by individuals. United States v. Sutherland, 37 FSupp. 344 (1940); United States v. Guest, 383 U.S. 745 (86 SC 1170, 16 LE2d 239) (1966). There can be instances when the private citizen's conduct may be attributable to the state where the government affirmatively facilitates, encourages, or authorizes the objectionable practice. The relevant inquiry is whether there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself. Jeffries v. Ga. Residential Fin. Auth., 678 F2d 919 (1982), cert. denied, 459 U.S. 971 (103 SC 302, 74 LE2d 283) (1982).
Here, appellants appear to be arguing that McCarley, Inc.'s governmental ties come by virtue of federal contracts through United. It will be unnecessary for this court to determine whether such federal contracts are sufficient governmental nexus so as to constitute state action and invoke the equal protection provisions of the State and Federal Constitutions, for, assuming arguendo the presence of state action in this case, the defendant company successfully hurdled appellants' pleadings as to equal protection claims.
An equal protection claim arises when an individual contends that he is receiving different treatment from that received by other individuals similarly situated; the essence of the claim is that certain action is taken against the plaintiff because of his membership in a particular class and that given the circumstances of the case or the nature of the clients, such action is arbitrary and illegal; the clause is not necessarily violated only upon a showing that similar action was taken against the entire class. Blackley v. Jekyll Island-State Park Auth., 536 FSupp. 236 (1982). A preliminary step in equal protection analysis is to determine whether persons who are similarly situated are subject to disparate treatment. Johnson v. Smith, 696 F2d 1334 (1983). Moreover, a successful equal protection claim requires showing of purposeful discrimination. Smith v. State of Ga., 684 F2d 729 (1982).
We have already noted in our analysis of appellants' claims under 42 USC § 1981, that the company successfully overcame appellants' claims of being qualified for the disputed positions. The appellee company demonstrated that appellants were not similarly situated to those occupying the positions of long-haul driver or warehouse manager. Appellants' response did not rebut the assertion that any disparate *529 treatment was a result of differing qualifications rather than because of race of any other suspect classification. In his first supplementary affidavit, McCarley went into some detail about distinctions in the positions, stating: "The long-haul drivers of McCarley, Inc. are independent contractors, and not employees of McCarley, Inc. Each of them execute a one year (1) written contract, a copy of which is attached hereto as Exhibit 2. They are on the road entirely, and under the contract, cannot be required to work anywhere else, in the warehouse or elsewhere. They are not employed to load or unload. The places of pickup and destination of shipments are given to them by United. Their respective vehicles are leased to United full time. Their work is done without direction of a supervisor. The contracts are terminable at will of either party. They are required to pass an ICC test as to skill and knowledge of operation, must possess tractor-trailer license to operate, and must meet approval of United. The independent contractor pays his own expenses, fuel, labor, and are generally paid by commission. The repairs to the tractor are as provided in the contract. The independent contractors are treated as independent contractors, and not as employees for purposes of withholding tax, social security tax, or otherwise. There is no attempt on the part of McCarley, Inc. to control the time, means and manner of doing the details of the work. The independent contractors, in effect, conduct an independent business, and neither McCarley, Inc. nor United reserves nor exercises any right to control the details of the time, means and manner of doing details of the work. No annual leave or vacation, nor retirement, nor any fringe benefits, insurance or hospitalization is paid to them. Consequently, they are not to be compared with ordinary employees of McCarley, Inc.; and they do not occupy the same or similar position as the short-haul employee drivers included among the Plaintiffs. Employees, on the other hand, are paid on an hourly basis, are required to work in the warehouse, load and unload trucks, and serve as drivers' helpers. One (1) week's vacation leave is allowed after one (1) year of employment; insurance and hospitalization is provided; they work under direction of a supervisor; no special driver's license is required; no approval by United is required except short-haul drivers hauling goods under United's authority. They are treated as employees for purposes [sic] of withholding and social security tax."
Also, McCarley states in the affidavit: "The employees of McCarley, Inc. who are drivers, loaders or unloaders, driver's helpers and packers are not entitled to overtime compensation under the Fair Labor Standards Act, since they are exempt under applicable law from the overtime provisions of the Labor Laws of the United States." Whether or not this is an accurate assessment of the law in this area is immaterial to the propriety of summary judgment as to these questions, *530 since such statements were unrebutted in appellants' responses. No material issues of fact remained as to appellants' claims of racial discrimination in violation of constitutional equal protection.
During oral argument of the instant appeal and in supplemental brief, appellants raise spectres of claims for violations of Title VII, 42 USC § 2000e-2, and of third party beneficiary status for the purpose of standing to claim violation of Executive Order 11246. Appellants' complaint did not allege any cause of action for violation of Title VII or of Executive Order 11246, nor did appellants amend their complaint to include these. Thus, such positions were not a part of the summary judgment of the trial court and cannot be considered on appeal. See Whitaker v. Trust Co. of Columbus, 167 Ga. App. 360, 363 (306 SE2d 329) (1983). See also, Lowe v. Royal Crown Cola Co., 132 Ga. App. 37, 40 (207 SE2d 620) (1974); Sowell v. Douglas County Elec. Membership Corp., 150 Ga. App. 520, 521 (258 SE2d 149) (1979).
Appellants' final contention in regard to McCarley, Inc. is that appellants were deprived of overtime pay and that these funds were wilfully and maliciously converted to the company's own use.
In order to present a cause of action for conversion, an act of dominion over the personal property of another inconsistent with his rights or by an unauthorized appropriation must be shown. Kornegay v. Thompson, 157 Ga. App. 558, 559, 560 (278 SE2d 140) (1981). McCarley stated that appellants were not entitled to overtime pay for several specific reasons. This lack of entitlement was not sufficiently addressed by appellants. Since McCarley, Inc. has pierced appellants' contention of right to overtime pay, and thus their very right or interest in the money, the company has effectively pierced any claim of conversion here.
We conclude that the trial court properly granted summary judgment to McCarley Moving & Storage Co., Inc.
2. Appellants' first enumeration of error contends that the trial court erred in granting summary judgment to United. We initially consider appellants' assertion that there was injustice or error in the trial court's grant of summary judgment to United "without the benefit of the Court's ruling on defendant's Motion to Quash Discovery . . . without plaintiff being afforded one iota of his discovery which was initiated so timely." The record does not indicate that the appellants made any motion to compel discovery, nor was there mention or request made to the trial court for leave for further discovery before seeking a ruling on the motions for summary judgment. Indeed, the record indicates that appellants themselves set the hearing date for the motions. This allegation of inequity is without substance.
Appellants base their claims against United under a theory of agency or respondent superior, i.e., under a theory of imputed rather *531 that direct liability for the alleged tortious acts by McCarley, Inc. We need make no determination as to the presence of material issues of fact regarding the existence, validity or extent of any agency relationship between United and McCarley, Inc. Even though a principal is responsible for the torts of his agent when the agent is acting on behalf of the principal (Davis v. U-Haul Co. of Southern Ga., 154 Ga. App. 124, 126 (267 SE2d 633) (1980)), we have already concluded that the alleged agent, McCarley, Inc., as a matter of law could not properly be kept in the present action under the theories of liability pled by appellants.
Consequently, the trial court properly granted summary judgment to United Van Lines, Inc.
3. Lastly, we consider the contention that the trial court erred in granting summary judgment to Price McCarley, the president and principal officer of McCarley, Inc.
Appellants attempt to impute liability to McCarley, maintaining that: "At a minimum, defendant Price McCarley is the alter ego of McCarley Moving and Storage, Inc., as relates to the discriminatory acts complained of by plaintiffs." Inasmuch as we have already determined that there remain no material issues of fact in regard to the corporate liability of McCarley, Inc., appellants' attempt to go behind the corporate veil and affix personal liability on McCarley is without merit. Assuming the propriety of any direct cause of action against McCarley under the theories of recovery pled, appellants' argument for questions of liability here would still be of no moment because of the surmounting evidence presented by appellees in support of their motions for summary judgment and the lack of adequate rebuttal on the part of appellants.
The trial court properly granted summary judgment to Price McCarley.
Judgment affirmed. Birdsong, P. J., and Carley, J., concur.
NOTES
[1] At the time of filing the instant suit, Dunklin was a long-haul driver for the company, and though an attempt to get him to join in the suit was made by plaintiffs, apparently this attempt was later abandoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827079/ | Order Michigan Supreme Court
Lansing, Michigan
September 6, 2011 Robert P. Young, Jr.,
Chief Justice
143090 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: 143090
COA: 302566
Kent CC: 09-000871-FC
ALICIA MARIE CAVASOS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the April 14, 2011 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the question presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 6, 2011 _________________________________________
p0829 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/846670/ | Order Michigan Supreme Court
Lansing, Michigan
March 27, 2006 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
129956 Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
PETER J. RHINES, LINDA M. HATTIER Justices
and MARY LOU RHINES,
Plaintiffs-Appellees,
v SC: 129956
COA: 258020
Keweenaw CC: 03-000486-CH
ROBERT JAMES SAUNDERS and JAY
ASHLEY SAUNDERS,
Defendants-Appellants,
and
CAROL A. CARLTON, as Trustee of
CAROL A. CARLTON TRUST,
Defendant.
_________________________________________/
On order of the Court, the application for leave to appeal the October 13, 2005
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should now be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 27, 2006 _________________________________________
d0320 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345804/ | 2006 WI 5
In the Matter of Disciplinary Proceedings Against Jeffrey A. Kingsley, Attorney at Law: Office of Lawyer Regulation, Complainant,
v.
Jeffrey A. Kingsley, Respondent.
No. 2005AP1298-D.
Supreme Court of Wisconsin.
Opinion Filed: January 13, 2006.
¶1 PER CURIAM.
We review the referee's report and recommendation that the license of Attorney Jeffrey A. Kingsley to practice law in the state of Wisconsin be suspended for 60 days, that Attorney Kingsley be ordered to pay restitution in the amount of $2000, and that he be ordered to pay the costs of this disciplinary proceeding. Having conducted our independent review of the matter, we adopt the referee's findings of fact and conclusions of law. Based on those conclusions, we believe that a 60-day suspension is appropriate discipline, and agree to the imposition of restitution and costs.
¶2 On May 18, 2005, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Kingsley regarding his representation of client D.H. The complaint alleged six violations of Wisconsin Supreme Court Rules of Professional Conduct. Count 1 alleged that by failing to prepare and file two lawsuits as promised, Attorney Kingsley failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.[1] Count 2 alleged that by failing to respond to the client's telephone calls and correspondence, Attorney Kingsley failed to keep the client reasonably informed as to the status of the matter and to comply promptly with reasonable requests for information, contrary to SCR 20:1.4(a).[2] Count 3 alleged that by failing to hold the client's retainer in a client trust account, separate from his own property, Attorney Kingsley violated former SCR 20:1.15(a).[3] Count 4 alleged that by failing to return the unearned portion of the client's retainer upon termination of the representation, Attorney Kingsley violated SCR 20:1.16(d).[4] Count 5 alleged that by failing to respond to multiple investigative letters from the OLR and to provide a written response to the client's grievance, Attorney Kingsley willfully failed to cooperate with the investigation of a grievance, in violation of SCR 21.15(4),[5] SCR 22.03(2) and (6),[6] thereby also violating a supreme court rule governing the conduct of lawyers, contrary to SCR 20:8.4(f).[7] Finally, Count 6 alleged that by failing to notify the client of the temporary suspension of his law license and by failing to advise the client to seek other counsel, Attorney Kingsley failed to comply with the requirements of SCR 22.26(1)(a) and (b),[8] thereby also violating SCR 20:8.4(f).
¶3 Ultimately, Attorney Kingsley entered into a stipulation and plea agreement whereby he pled no contest to each of the counts in the OLR's complaint. Attorney Kingsley stipulated that the allegations of the complaint could be used by the referee appointed in this case, Konrad T. Tuchscherer, as an adequate factual basis for concluding as a matter of law that Attorney Kingsley had engaged in misconduct as set forth in each of the six counts of the OLR's complaint. The parties further jointly requested that the referee recommend the imposition of a 60-day suspension of Attorney Kingsley's law license, restitution in the amount of $2000 to the Wisconsin Fund for Client Protection (the Fund) and an order that Attorney Kingsley be responsible for paying the costs of the present proceeding, which were $486.10 as of August 25, 2005.
¶4 Pursuant to the parties' stipulation and Attorney Kingsley's no contest plea, the referee found that the factual allegations of the complaint had been proven and concluded as a matter of law that Attorney Kingsley had violated the supreme court rules as set forth in the complaint. The referee also adopted the parties' recommendation as to the appropriate discipline. Neither party has filed an appeal from the referee's report and recommendation. Consequently, the matter is submitted to the court for its review pursuant to SCR 22.17(2).[9]
¶5 In reviewing a referee's report and recommendation, we affirm the referee's findings of fact unless they are clearly erroneous. See In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). The referee's conclusions of law, however, we review on a de novo basis. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶29, 248 Wis. 2d 662, 636 N.W.2d 718.
¶6 Attorney Kingsley was admitted to the practice of law in Wisconsin on July 20, 1993. He has been the subject of two recent disciplinary proceedings. On March 23, 2004, Attorney Kingsley's license was temporarily suspended due to his failure to cooperate with the OLR's grievance investigation in the present case. His license was also administratively suspended on June 7, 2004, for failing to comply with his reporting requirements for continuing legal education. Attorney Kingsley's license remains suspended.
¶7 According to the stipulated facts found by the referee, in January 2003 Attorney Kingsley's law firm was retained by D.H. regarding potential lawsuits against Kenosha County and several City of Kenosha police officers. The firm provided D.H. with the number of a bank account, into which D.H. deposited a $3000 retainer. The account, however, was not a client trust account, and D.H.'s retainer was never transferred to such a trust account.
¶8 On February 6, 2003, Attorney Kingsley filed a notice of claim on behalf of D.H. with the Kenosha County Clerk's Office. Attorney Kingsley also gave notice of D.H.'s potential claim to the Kenosha City Clerk.
¶9 D.H. subsequently requested and obtained a return of $1000 of her retainer. The remaining $2000 retainer balance continued to remain in the firm's business account.
¶10 On April 8, 2003, Attorney Kingsley met with D.H. Attorney Kingsley falsely indicated to her that he had already filed the federal lawsuit against Kenosha County, but had not yet filed suit against the individual police officers. Attorney Kingsley told D.H. that he would file the second lawsuit within one week after his receipt of the names and addresses of the police officers. D.H. immediately provided Attorney Kingsley with that information. At that same meeting, D.H. executed a written fee agreement with Attorney Kingsley's firm providing that Attorney Kingsley would receive $150 per hour for the legal services that he rendered.
¶11 Over the course of the next several months, D.H. left various messages at Attorney Kingsley's office regarding the status of her lawsuits, but Attorney Kingsley never responded. At one point, another attorney at the firm spoke with D.H. and informed her that Attorney Kingsley had "dropped the ball on all his clients" and left the state. The attorney attempted to check into the matter and subsequently informed D.H. that the complaints for her lawsuits had been prepared, but had not been filed.
¶12 Subsequently, on July 25, 2003, D.H. contacted the OLR concerning her situation. D.H. continued to leave numerous messages on Attorney Kingsley's answering machine inquiring as to the status of her cases, but Attorney Kingsley failed to return any of her calls.
¶13 Finally, on August 22, 2003, Attorney Kingsley informed D.H. that he would file the complaints the following Monday. The OLR attempted to contact Attorney Kingsley three times over the course of the next week to inquire whether Attorney Kingsley had in fact filed D.H.'s complaints. On September 4, 2003, Attorney Kingsley told the OLR's intake staff that he could not file the lawsuits against the individual police officers because they were without merit. That same day, the OLR sent a letter to Attorney Kingsley requesting that he respond to D.H.'s grievance within the next two weeks. Attorney Kingsley failed to respond.
¶14 On September 9, 2003, D.H. wrote to Attorney Kingsley inquiring whether he would continue with her cases and requesting that he file the lawsuits by September 26, 2004. If Attorney Kingsley did not wish to proceed with the lawsuits, D.H. requested that he return her remaining $2000 retainer. Attorney Kingsley again failed to respond.
¶15 OLR staff wrote letters to Attorney Kingsley on October 21, November 20 and December 28, 2003, requesting that Attorney Kingsley submit a written response to D.H.'s grievance. Attorney Kingsley failed to respond to each of the letters.
¶16 On January 10, 2004, D.H. wrote to the OLR indicating that she had been forced to let her claims lapse because Attorney Kingsley had failed to file her complaints or return her $2000 retainer so she could retain other counsel. D.H. continued her attempts to contact Attorney Kingsley, but he did not respond to her calls. Ultimately, D.H. submitted a claim to the Fund, which approved a payment of $2000 to reimburse D.H. for the money she had lost due to Attorney Kingsley's failure to return her retainer. Attorney Kingsley was notified of this payment.
¶17 Because of Attorney Kingsley's ongoing failure to respond or cooperate with the OLR's investigation of D.H.'s grievance, this court temporarily suspended Attorney Kingsley's license to practice law in an order dated March 23, 2004. On March 25, 2004, the OLR sent notice to Attorney Kingsley of his responsibilities relating to the suspension of his practice pursuant to SCR 22.26. Those responsibilities include sending a notice by certified mail to each client in a pending matter informing the client that the attorney's license has been suspended and that the attorney will be unable to continue with the representation. Attorney Kingsley failed to provide such notice to D.H. and to advise her that she needed to seek legal representation with another lawyer.
¶18 As noted above, Attorney Kingsley ultimately did communicate with the OLR and entered into a stipulation admitting misconduct as alleged in the six counts of the OLR's complaint. Consequently, there was a sufficient basis for the factual findings of the referee, which we adopt. Moreover, the factual allegations of the complaint, as found by the referee, adequately support the referee's conclusions of law that Attorney Kingsley's conduct in the representation of D.H. and in response to the OLR's investigation of D.H.'s grievance violated SCR 20:1.3, SCR 20:1.4(a), former SCR 20:1.15(a), SCR 20:1.16(d), SCR 21.15(4), SCR 22.03(2) and (6), SCR 22.26(1)(a) and (b), and SCR 20:8.4(f).
¶19 With respect to the level of discipline, we believe that a 60-day suspension is warranted. Although Attorney Kingsley has not been the subject of disciplinary proceedings prior to the present case, his abandonment of D.H. caused substantial prejudice to her and constituted serious misconduct. Moreover, his failure to comply with his obligations after the temporary suspension of his license to practice law indicates a disregard for the profession's regulations.
¶20 IT IS ORDERED that the license of Attorney Jeffrey A. Kingsley to practice law in Wisconsin is suspended for a period of 60 days, effective as of the date of this order.
¶21 IT IS FURTHER ORDERED that within 30 days of the date of this order, Attorney Kingsley shall pay restitution to the Wisconsin Fund for Client Protection in the amount of $2000, plus interest at the legal rate of five percent (5%) per annum for the period from the date of the Fund's payment to D.H. until the date of Attorney Kingsley's payment to the Fund.
¶22 IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Kingsley shall pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay those costs within that time, the license of Attorney Kingsley to practice law in Wisconsin shall remain suspended until further order of the court.
¶23 IT IS FURTHER ORDERED that if he has not already done so, Attorney Kingsley shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.
NOTES
[1] SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."
[2] SCR 20:1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
[3] Former SCR 20:1.15 applies to misconduct committed prior to July 1, 2004. Former SCR 20:1.15(a) provides in relevant part that "[a] lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity."
[4] SCR 20:1.16(d) provides: Declining or terminating representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
[5] SCR 21.15(4) provides that "[e]very attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys."
[6] SCR 22.03 provides in relevant part: Investigation.
(2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.
. . . .
(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.
[7] SCR 20:8.4(f) provides that it is professional misconduct for a lawyer to "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."
[8] SCR 22.26(1) provides: Activities following suspension or revocation.
(1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:
(a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.
(b) Advise the clients to seek legal advice of their choice elsewhere.
[9] SCR 22.17(2) provides: Review; appeal.
(2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345807/ | 330 S.E.2d 506 (1985)
Brenda Pruett COX
v.
James A. COX.
No. 8417DC942.
Court of Appeals of North Carolina.
June 18, 1985.
*507 Everett & Everett by James A. Everett, Elkin, for plaintiff-appellant.
Morrow & Reavis by John F. Morrow and Clifton R. Long, Jr., Winston-Salem, for defendant-appellee.
JOHNSON, Judge.
The sole issue is whether the court erred in granting summary judgment for defendant. For the following reasons we hold the trial court did err in granting summary judgment.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." G.S. 1A-1, Rule 56(c). An issue of material fact is one which may constitute a legal defense or is of such a nature as to affect the result of the action or is so essential that the party against whom it is resolved may not prevail; an issue is genuine if it can be supported by substantial evidence. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). A party moving for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). If the moving party meets its burden, the burden then shifts to the opposing party to set forth specific facts, through affidavits or otherwise, showing that there is a genuine issue for trial. G.S. 1A-1, Rule 56(e). The opposing party need not convince the trial court that he would prevail on the issue but only that a genuine issue exists. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982). In ruling upon the motion, the court must closely scrutinize the movant's papers while indulgently treating the non-movant's papers. Zimmerman v. Hogg & Allen, supra.
In the present case, defendant, as the party moving for summary judgment, carried his burden of proof through his affidavit accompanied by the divorce judgment and the separation agreement signed by plaintiff. The burden then shifted to plaintiff to show a genuine issue of material fact for trial. She produced an affidavit in which she averred that she had been coerced and forced into signing the separation agreement by defendant; that defendant had threatened her physically on several occasions prior to their separation, causing her to leave the marital home, once late at night, to avoid physical injury to herself; that defendant had a violent temper and had exhibited this violent temper on several *508 occasions; that defendant had threatened to physically harm her if she did not sign the separation agreement; that these threats were made on the date the separation agreement was executed and prior thereto; and that fearing for her life, knowing her husband's temper, she signed the separation agreement. If plaintiff executed the separation agreement under duress or fear induced by wrongful acts or threats, the separation agreement is invalid and not a bar to equitable distribution unless the separation agreement was ratified by plaintiff. See Link v. Link, 278 N.C. 181, 179 S.E.2d 697 (1971). Plaintiff's affidavit, therefore, raises triable issues of fact as to whether the separation agreement was signed by plaintiff under duress, and if so, whether it was ratified by plaintiff. Since plaintiff's affidavit raises a genuine issue of material fact as to the validity of the separation agreement asserted in bar of the action for equitable distribution, the court improvidently granted defendant's motion for summary judgment. The court's judgment must be vacated and the cause remanded for a resolution of the factual issue.
Vacated and remanded.
WHICHARD AND EAGLES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345830/ | 174 Ga. App. 426 (1985)
330 S.E.2d 167
VOWELL
v.
THE STATE.
69660.
Court of Appeals of Georgia.
Decided April 1, 1985.
B. Keith Rollins, Lisa A. Brown, for appellant.
Frank C. Winn, District Attorney, for appellee.
DEEN, Presiding Judge.
Appellant Vowell was convicted by a Douglas County jury of the offense of escape from lawful confinement. Evidence of an escape from Vowell's cell was discovered by jail personnel, and appellant and another escapee were apprehended in an Atlanta motel. Vowell contended at trial that he was coerced into escaping by the threats of a fellow escapee who had held a knife at his throat. On appeal Vowell enumerates as error the trial court's failure to instruct the jury on two points: (1) that the state had the burden of proving an absence of coercion, and (2) that the evidence of prior convictions introduced by the state should be considered only for the limited purpose of proving the element of lawful custody. Held:
1. Appellant contends that the court's failure to give a limiting instruction regarding the introduction of evidence of a prior conviction had the effect of impermissibly placing his character in issue. Scrutiny of the trial transcript reveals that after the jury had retired, when the court inquired if there were any exceptions to the jury instructions, defense counsel raised the enumeration listed as (1), supra, but that she neither objected to the court's failure to give a limiting instruction on the introduction of evidence of prior convictions, nor reserved the right to object. Appellant thus waived the right to raise this issue on appeal, and this court cannot address this enumeration. Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980); White v. State, 243 Ga. 250 (253 SE2d 694) (1979); Fields v. State, 167 Ga. App. 400, 402 (306 SE2d 695) (1983). See also Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976); Kingston v. State, 127 Ga. App. 660 (194 SE2d 675) (1972). Even had defense counsel properly preserved this as error for appeal, however, it was necessary for the state to introduce evidence of a prior conviction in order to prove the elements of the offense of escape. OCGA § 16-10-52; Ingram v. State, 237 Ga. 613 (229 SE2d 416) (1976). Even though such evidence may incidentally place the defendant's character in issue, it is well settled that competent evidence is admissible which only incidentally places character in issue. Wyatt v. State, 206 Ga. 613 (57 SE2d 914) (1950). See also Pope v. State, 170 Ga. App. 799 (318 SE2d 223) (1984).
2. The trial transcript indicates that although there was no specific jury instruction regarding the state's burden of proving absence of coercion, the court thoroughly instructed the jury as to presumption *427 of innocence and burden of proof in general. Appellant offered no evidence to corroborate his own testimony that he had been coerced into escaping. On the other hand, there was considerable evidence e.g., the fact that appellant had had no cellmate from the time that he was initially jailed until the time of the escape, and the further evidence of the discovery, by jail officials acting on information, of a sheet rope concealed amidst his bedding from which reasonable jurors might have concluded that he had not been subjected to coercion in either the planning or the execution of the escape.
Moreover, coercion is no defense where there is any reasonable way available for the escapee to avoid fruition of the threat of harm. Proctor v. State, 139 Ga. App. 794 (229 SE2d 675) (1976). Jail personnel testified that it was generally known among the inmate population that prisoners would be protected from fulfillment of such threats if protection were sought from jail officials. Whether any reasonable way of evading the effect of a threat of harm is available in a given situation is a matter for jury determination. Id. In the instant case the testimony of jail personnel was sufficient evidence to authorize the jury to conclude that a reasonable means of avoiding the consequences of the alleged threats was available to appellant.
We find that under the reasonable trier of fact standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient to authorize a jury finding that appellant was guilty as charged beyond a reasonable doubt. Rachel v. State, 247 Ga. 130 (274 SE2d 475) (1981); Drayton v. State, 157 Ga. App. 872 (278 SE2d 758) (1981).
Judgment affirmed. Pope and Beasley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264298/ | 879 F.Supp. 139 (1995)
Margaret DUPUIS, Plaintiff,
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendant.
Civ. No. 93-299-P-H.
United States District Court, D. Maine.
January 9, 1995.
*140 *141 Kurt E. Olafsen, Portland, ME, for plaintiff.
David J. Jones and Keith Jacques, Jensen, Baird, Gardner & Henry, Biddeford, ME, for defendant.
ORDER ON A STIPULATED RECORD
HORNBY, District Judge.
This case presents the always difficult question of which innocent party must bear the unavoidable consequences of a third party's wrongful acts. Fidelity Guarantee Mortgage Corporation ("Fidelity"), the original lender, caused much of the loss underlying this lawsuit. Fidelity, however, has been adjudged bankrupt and is judgment proof. The loss, therefore, must fall on one of the two innocent parties to this suit, the borrower Margaret Dupuis or the purchaser of her note and mortgage in the secondary market, Federal Home Loan Mortgage Corporation ("FHLMC").
The parties have stipulated the record for purposes of the liability issues in Dupuis's Complaint.
JURISDICTIONAL BASIS
The court has original jurisdiction of this matter. 12 U.S.C. § 1452(f) (creating original jurisdiction in federal district courts in all civil actions to which FHLMC is a party).
BACKGROUND
On July 30, 1990, Margaret Dupuis signed a promissory note to Fidelity for $156,000. She secured the note with a mortgage on her home. Dupuis intended to use the loan to repay creditors and finance a new addition to her home. At the closing or soon thereafter, Fidelity disbursed $115,152.44 of the loan to Dupuis or on her behalf. Fidelity and Dupuis agreed that Fidelity would hold $6,000 as a performance escrow and $1,601.88 for a tax and insurance escrow. Fidelity also held back $30,997.56, ostensibly for a home improvement escrow, only $6,000 of which was ever disbursed to Dupuis and $150 of which was disbursed to a private building inspector to inspect the Dupuis property. In fact, no written agreement ever established the escrow, and Fidelity's lawyer simply returned the money to Fidelity on October 10, 1990. Monthly payments were nevertheless calculated as if the entire loan had been paid to Dupuis. After intermittent periods of missed payments and makeups, Dupuis stopped making monthly payments in February, 1992.
On August 9, 1990, without notifying Dupuis, Fidelity assigned the note and mortgage to FHLMC as part of a bulk transfer of loans. FHLMC, in turn, contracted with Fidelity to service the note and mortgage pursuant to the terms of FHLMC's Sellers' and Servicers' Guide. Fidelity serviced the loan until the fall of 1992 when it filed for bankruptcy and ceased operations. Dupuis was unaware of the FHLMC assignment and servicing agreement until then.
Dupuis never received the remaining $24,847.56 home improvement "escrow" or the $6,000 performance escrow.
On occasion, Fidelity failed to pay Dupuis's homeowner's insurance premiums and real estate taxes from the tax and insurance escrow (sometimes but not always the escrow was insufficient) and consistently failed to pay Dupuis any interest on this escrow.
Fidelity persuaded Dupuis to pay a contractor $1,500 out of her own pocket to complete the roof on the addition and agreed to credit Dupuis's loan balance for that amount. Despite the agreement, Fidelity never credited Dupuis's account for the $1,500 she spent.
In July of 1991, vandals damaged Dupuis's swimming pool. In the fall of 1991, Dupuis received an insurance claim check of $5,458 for the damage. Dupuis signed the check over to Fidelity. Fidelity never credited Dupuis's loan for the amount of the check.
*142 Fidelity's actions that Dupuis challenges were all unauthorized and improper under the Sellers' and Servicers' Guide.
On April 21 and May 11, 1993, FHLMC, through its new loan servicer, First Commercial Mortgage Company, notified Dupuis that her note was in default. FHLMC maintains that Dupuis must pay the full amount of the $156,000 note with interest and late charges, even though she never received over $30,000 of the loan and despite Fidelity's failure in servicing the loan to credit her with various items. As of September 22, 1994, the amount due under the note and mortgage, not considering any set-offs, was $223,542.95, with additional interest and late charges continuing to accrue.
Dupuis brought this lawsuit against FHLMC, and FHLMC counterclaimed to collect on the note and foreclose the mortgage.
My earlier summary judgment order left unresolved three counts, and part of a fourth, of Dupuis's Complaint. It is to these matters that I now turn.
BREACH OF CONTRACT (COUNT I)
The stipulated record contains five items that are clear breaches of contract: (1) Fidelity's failure to disburse the entire loan proceeds to Dupuis, (2) Fidelity's failure to pay Dupuis's homeowner's insurance premiums and real estate taxes from the fund escrowed for that purpose, (3) Fidelity's failure to pay interest on the escrowed funds, (4) Fidelity's failure to credit Dupuis's loan $5,458, the amount of the insurance claim check for the vandalized pool, and (5) Fidelity's failure to credit Dupuis's loan the amount she paid to close in the roof. FHLMC does not contend that these are not breaches. Instead, FHLMC argues that it has no responsibility or liability for Fidelity's wrongdoing.
Although the parties have not addressed choice of law, federal common law governs because of the important federal interests involved. See Federal Home Loan Mortgage Corp. v. Nazar, 100 B.R. 555, 557-58 (D.Kan.1989). The only other possibility is Maine law. Whichever law I apply, I reach the same conclusion. Under both federal common law and Maine law, the Restatement (Second) of Agency provides the governing principles because both the federal courts and the Maine Law Court regularly rely on the Restatements where, as here, no applicable precedents exist. See United States v. Gil, 657 F.2d 712, 715 (5th Cir. 1981); Bonk v. McPherson, 605 A.2d 74, 78 (Me.1992).
(a) Agency Principles
The parties agree that Dupuis had no knowledge that FHLMC owned her note and mortgage until after Fidelity's bankruptcy. Thus, the typical arguments in agency cases about "apparent authority" are inapplicable. See Libby v. Concord Gen. Mut. Ins. Co., 452 A.2d 979, 983 (Me.1982). So far as Dupuis was concerned, Fidelity had no "apparent authority" to act on FHLMC's behalf; to Dupuis's knowledge, Fidelity was all there was. At first glance, that might seem to end the matter. If Dupuis had no knowledge that FHLMC held her note and mortgage, why should she now have any recourse against FHLMC? Why not limit her recourse to (bankrupt) Fidelity? The question cannot be answered as easily as it is asked because FHLMC, for its part, is striving to hold Dupuis liable for amounts far beyond what Fidelity could have collected. It is FHLMC that wants to avoid the defenses and claims Dupuis would have if Fidelity were trying to collect on the note and foreclose the mortgage.
The Restatement (Second) of Agency announces: "A general agent for an undisclosed principal authorized to conduct transactions subject his principal to liability for acts done on his account, if usual or necessary in such transactions, although forbidden by the principal to do them." Restatement (Second) of Agency § 194 (1957).[1] A general agent is *143 "an agent authorized to conduct a series of transactions involving a continuity of service." Id. § 3(1).
FHLMC was certainly undisclosed so far as Dupuis was concerned. It is pretty obvious, then, that, if Fidelity was a general agent for FHLMC, FHLMC is liable, as an undisclosed principal, for Dupuis's contract claims. All that Restatement section 194 requires in addition is that Fidelity have been authorized to conduct transactions and that Fidelity's actions done on FHLMC's account be "usual or necessary in such transactions." Section 194 makes clear that whether FHLMC authorized or prohibited the specific acts in question is irrelevant. FHLMC hired Fidelity to service loans and mortgages in accordance with the Sellers' and Servicers' Guide, including those of Dupuis. Thus, Fidelity was "authorized to conduct transactions" involved in such servicing. Although FHLMC points to provisions of its Guide which, it argues, prohibited Fidelity from treating the Dupuis loan the way it did, Fidelity's acts done on FHLMC's account were "usual or necessary" acts in a servicing relationship. That is true for the withholding of loan proceeds until the servicer is satisfied that the improvements have been suitably completed; the collection and payment of real estate tax and insurance obligations; the payment of interest on escrowed funds; dealing with a casualty loss on the secured premises and allocation of insurance proceeds for the loss; and negotiating with the borrower to improve the premises in exchange for a further disbursement or a credit against the loan due.
FHLMC argues that Fidelity was an independent contractor rather than an agent and has pointed to language in the Guide that servicers are only independent contractors. But that position misperceives the applicable law of agency. A principal/independent contractor relationship is to be distinguished from a master/servant relationship, but an independent contractor can still be an agent. Baker Bus Serv., Inc. v. Keith, 416 A.2d 727, 730 n. 2 (Me.1980); Restatement (Second) of Agency § 2(3). Lawyers appearing in court on behalf of a client are the classic example. See Nyer v. Carter, 367 A.2d 1375, 1378 (Me.1977). Plainly, Fidelity serviced this note and mortgage on behalf of FHLMC and in that respect acted as agent.[2] The real issue is whether Fidelity should be treated as a general agent. The Restatement gives two choices: "general agent," which I have already defined (and which produces liability for the undisclosed principal), and "special agent" "an agent authorized to conduct a single transaction or a series of transactions not involving continuity of service," Restatement § 3(2) (and which results in no liability for the undisclosed principal). The commentary states that the distinction between these two categories is "one of degree." Comment a:
[T]he number of acts to be performed in accomplishing an authorized result, the number of people to be dealt with, and the length of time needed to accomplish the result are the important considerations. Continuity of service rather than the extent of discretion or responsibility is the hall-mark of the general agent. The point at which one becomes a general agent can not be marked with exactitude. One who is an integral part of a business organization and does not require fresh authorization for each transaction is a general agent.
Applying these criteria, I conclude that Fidelity was a general agent for FHLMC with respect to servicing the loans it sold to *144 FHLMC. A huge number of acts must be performed in servicing a loan and mortgage of many years duration. Although only one debtor needs to be dealt with, there are taxing authorities and insurance companies and, in a case like this, potential lienholders who are performing improvements to the property. The length of time is substantial for most home mortgages here the mortgage term was thirty years. Although FHLMC has argued that its Sellers' and Servicers' Guide posed very severe limitations on what Fidelity could do, the Restatement commentary makes clear that "continuity of service" is the key, not the "extent of discretion or responsibility." As servicer, Fidelity became an integral part of FHLMC's administration of its secondary mortgage portfolio. Certainly, fresh authorization was not required for each element of the servicing relationship. Moreover, this was not a one-time event for Fidelity and FHLMC. Fidelity sold 221 loans to FHLMC from 1985 until its bankruptcy and was servicing some 109 loans for FHLMC when it was terminated on October 27, 1992.
I conclude, therefore, that under the Restatement (Second) of Agency, Fidelity must be considered a general agent and that FHLMC, as an undisclosed principal, is subject to liability on agency law principles for Fidelity's breaches of contract. I do not profess to understand all the policy reasons for why the Restatement drafters reached their liability conclusion for undisclosed principals from common law developments. The commentary unhelpfully states that the rule is an example of "inherent agency power." Restatement § 194 cmt. a. Restatement § 8 A defines "inherent agency power" as a term used to "indicate the power of an agent which is derived not from authority, apparent authority or estoppel, but solely from the agency relation and exists for the protection of persons harmed by or dealing with a servant or other agent." Comment a to section 8 A states:
A principle which will explain [the] cases can be found if it is assumed that a power can exist purely as a product of the agency relation. Because such a power is derived solely from the agency relation and is not based upon principles of contracts or torts, the term inherent agency power is used to distinguish it from other powers of an agent which are sustained upon contract or tort theories.
Moreover,
[t]he common law has properly been responsive to the needs of commerce, permitting what older systems of law denied, namely a direct relation between the principal and a third person with whom the agent deals, even when the principal is undisclosed.... It would be unfair for an enterprise to have the benefit of the work of its agents without making it responsible to some extent for their excesses and failures to act carefully.
It seems to be this last factor that justifies the result the Restatement principles produce in this case. As a matter of agency law, it would be unfair for FHLMC to have the benefit of Fidelity's servicing of the note and mortgage without also making FHLMC responsible for Fidelity's excesses and failures. Dupuis always had reason to believe that whatever defaults had been committed by Fidelity could be used by her in defense against any action Fidelity might bring against her. The surprise was FHLMC's appearance, arguing that it was free of the Fidelity albatross.
(b) Merrill Doctrine
Despite FHLMC's liability at common law (federal or Maine), I conclude that the Merrill doctrine ultimately provides a complete defense to FHLMC on all of Dupuis's contract claims.
In Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), the United States Supreme Court held that, regardless of the harsh effect on an innocent citizen, an agent representing the Federal Crop Insurance Corporation could not bind the corporation beyond his actual authority. Here, it is undisputed that Fidelity's wrongful acts as an agent were explicitly contrary to and prohibited by FHLMC's Sellers' and Servicers' Guide. Thus, if FHLMC is entitled to Merrill protection like the Federal Crop Insurance Corporation in Merrill, FHLMC cannot be liable to Dupuis.
*145 The Supreme Court has identified a very broad scope for the Merrill doctrine:
Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it. The Government may carry on its operations through conventional executive agencies or through corporate forms especially created for defined ends. Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.
332 U.S. at 383-84, 68 S.Ct. at 3 (citation omitted). FHLMC is one of the forms in which Congress has chosen to function. Congress established FHLMC in 1970 to implement an important government policy, creation of a secondary market for home mortgages. 1970 U.S.C.C.A.N. 3488, 3495. Congress made FHLMC exempt from federal, state and local taxes, 12 U.S.C. § 1452(d) (1970) (amended 1989), and FHLMC's Board of Directors consisted of three members of the Federal Home Loan Bank Board, all of whom were appointed by the President, 12 U.S.C. § 1452(a) (1970) (amended 1989). Although initially chartered with many governmental attributes, FHLMC was largely privatized in 1989. Financial Institutions Reform, Recovery and Enforcement Act of 1989, Pub.L. No. 101-73, s. 731, 103 Stat 430 (codified at 12 U.S.C. §§ 1811-1833e); see also Liberty Mortgage Banking, Ltd. v. Federal Home Loan Mortgage Corp., 822 F.Supp. 956, 958 (E.D.N.Y.1993). But the President still appoints five of its eighteen board members, 12 U.S.C. § 1452(a)(2)(A), the Department of Housing and Urban Development and the Treasury Department continue to have regulatory oversight, 12 U.S.C. §§ 1452(b), 1455(j), and FHLMC continues to serve the objectives of its original charter, 12 U.S.C. §§ 1451-55. Thus, it continues to be a "corporate form[]" "especially created" by Congress "for defined ends." Although Merrill rejected estoppel principles arising out of apparent authority whereas I have concluded that the issue here is one of inherent (not apparent) authority, the primary factor that drove the conclusion in Merrill is equally applicable: Congress's ability to impose limits on what its creations may do. 332 U.S. at 385, 68 S.Ct. at 3-4. Congress established the FHLMC with specific powers, and the FHLMC has within those powers explicitly limited the authority of its agents. Merrill directs that a court must observe these limitations. Id.; accord Mendrala v. Crown Mortgage Co., 955 F.2d 1132, 1140-41 (7th Cir.1992).[3] Although it is undoubtedly hard on Dupuis to subject her to this consequence especially where she was unaware of FHLMC's involvement that is the consequence of the Merrill principle. Accordingly, I conclude that Dupuis is unable to recover on any of her contract claims against FHLMC for Fidelity's actions.
BREACH OF THE DUTY OF GOOD FAITH AND/OR FAIR DEALING (COUNT II), VIOLATION OF 9-A M.R.S.A. § 9-305 (COUNT VII) AND NEGLIGENCE (COUNT VIII)
I find against Dupuis on her three remaining claims for recovery for the following reasons.
Merrill provides a defense to the alleged breach of the duty of good faith and/or fair dealing in Count II.
In Count VII, I find no civil recovery available under the Maine Consumer Credit Code for the failure to pay interest on the tax and insurance escrow. Although 9-A M.R.S.A. § 9-305 requires that the debtor receive the interest earned on such an escrow, the remedies and penalties part, sections 9-401 through 9-407, provides no remedies except the criminal penalty remedy of *146 section 9-407. The closest civil remedy is sections 9-405(2) and (3), which talk about a right to a refund when a debtor has paid an excess charge. Dupuis did not pay any excess charge here. Instead, Fidelity simply failed to pay interest on the escrow. I conclude that any remedy for that violation is to be pursued by the Attorney General under the criminal law or by enforcement activities through the appropriate state agency.
Finally, on Dupuis's claims of negligence against FHLMC in Count VIII for Fidelity's actions in administering the loan, selecting a contractor, supervising the renovation and failing to disburse loan proceeds, I find that Dupuis has failed to meet her burden of proof to persuade me as the factfinder that any such negligence occurred. On the stipulated record, I find insufficient evidence to persuade me of negligence.
Accordingly, judgment shall be entered for the defendant on all remaining counts of the Complaint.
COUNTERCLAIM
The parties have not stipulated the record for purposes of the counterclaim, but they have briefed and argued whether FHLMC can be a holder in due course of the note and mortgage. On Dupuis's direct claim for damages in her complaint against FHLMC the answer is immaterial; holder-in-due-course status permits the holder of an instrument to recover against the obligor free of defenses the obligor might otherwise have, but it does not speak to what claims the obligor may have against the holder. Thus, whether FHLMC is a holder in due course does not alter its potential liability, as an undisclosed principal, for Fidelity's various breaches under the agency principles I have discussed.
It does, however, have a conclusive effect on Dupuis's affirmative defenses to FHLMC's counterclaim to enforce the note and mortgage, and since the parties have addressed the issue, I will resolve it. I am satisfied from the stipulated record that FHLMC was a holder in due course, 11 M.R.S.A. §§ 3-302, 3-305,[4] on August 9, 1990, when it bought the note from Fidelity. At that time, FHLMC had no notice or information concerning the withholding of the $6,000 performance escrow or the $30,997.56 home improvement escrow. As of that date, therefore, FHLMC could have recovered the entire amount of the note from Dupuis. 11 M.R.S.A. § 3-305.
Dupuis argues that FHLMC nevertheless should not be considered a holder in due course because of its close connection to Fidelity. Typically, the so-called close connection cases eliminate the broad rights of a holder in due course in installment sales where the seller has set up a separate financing agency to hold the commercial paper produced through the sale and to avoid any defenses that might be available for a defective product or other failure to perform. See, e.g., Unico v. Owen, 50 N.J. 101, 232 A.2d 405 (1967). Those circumstances do not exist here. As I found in my order on summary judgment, Fidelity was not FHLMC's agent for purposes of obtaining and closing (as contrasted with servicing) the loan. FHLMC simply establishes standards pursuant to which it offers to purchase loans and mortgages from lenders throughout the country. It thereby creates a secondary market. There is no interrelationship of personnel, owners or otherwise between the lenders and FHLMC. Furthermore, this is not an instance where an entrepreneur is selling a product and seeks to unbundle the financing part of what is otherwise a unitary transaction.
Therefore, although Fidelity ultimately misbehaved in failing ever to pay out the $6,000 performance escrow or the remaining amount of the home improvement escrow or to transfer those funds to FHLMC and reduce the amount due from Dupuis, FHLMC as a holder in due course can collect the face amount of the note it purchased and accruing interest in accordance with the note's terms. Thus, Fidelity's failure to disburse the escrows is not a viable affirmative *147 defense for Dupuis on FHLMC's counterclaim to enforce the note and mortgage.
Accordingly, Dupuis shall show cause within ten (10) days why judgment should not be entered for FHLMC on the counterclaim.
SO ORDERED.
NOTES
[1] Dupuis asserted at oral argument that this section only applies to torts and that section 186 applies to contracts. It appears, however, that section 186 applies to the creation of liability on the part of an undisclosed principal for acts done by an agent acting within his authority. Section 194, on the other hand, deals with the creation of liability for unauthorized acts. The stipulated record reveals that the acts in question here were unauthorized.
[2] One bankruptcy court has found no agency relationship between FHLMC and a seller of notes like Fidelity. In re Ellis, 152 B.R. 211, 217-18 (Bankr.E.D.Tenn.1993). Ellis did not deal with the servicing relationship, however, but only with the purchase and sale of notes, a subject on which I am in agreement with the bankruptcy court, as reflected in my earlier summary judgment decision. A second court, the Seventh Circuit, observed in Mendrala v. Crown Mortgage Co., 955 F.2d 1132, 1141 (7th Cir.1992), that a seller of loans to FHLMC "was an `independent contractor' and `not [FHLMC's] agent or assignee.'" This statement was made in the context of considering the Merrill doctrine that estoppel may not be used against the government. The dictum is broad; it appears, however, that the court did not give close attention to agency law principles and simply accepted the self-serving assertions in the FHLMC Sellers' and Servicers' Guide.
[3] I observe that later decisions seem to characterize the Merrill doctrine as based primarily upon protection of the federal Treasury, see, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 420, 110 S.Ct. 2465, 2469, 110 L.Ed.2d 387 (1990), and that concern seems misplaced or at least highly attenuated here now that FHLMC is privately owned. Although focusing on that concern, none of the cases has suggested any limitation to the broad scope announced in Merrill. Consequently, if there is to be some narrowing, it must be left for an appellate court to pronounce.
[4] Although Article 3 of the Uniform Commercial Code was repealed by 1993 Me. Laws, c. 293 and replaced by Article 3-A of Title 11, this repeal did not take effect until after this case was filed, and therefore the former Article 3 governs this case. See 1 M.R.S.A. § 302. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264363/ | 879 F.Supp. 901 (1994)
Janet SASSAMAN, Plaintiff,
v.
HEART CITY TOYOTA, Defendant.
No. S93-CV-183RM.
United States District Court, N.D. Indiana, South Bend Division.
December 13, 1994.
*902 *903 *904 *905 *906 John C. Hamilton, Doran Blackmond Ready Hamilton and Williams, South Bend, IN, for plaintiff.
Bradley L. Varner, Christopher A. Nichols, May Oberfell and Lorber, South Bend, IN, for defendant.
MEMORANDUM AND ORDER
MILLER, District Judge.
This cause is before the court on the plaintiff Janet Sassaman's petition for attorney fees (filed September 8, 1994 (# 61)), and on *907 the defendant Heart City Toyota's motion for judgment as a matter of law or in alternative, for new trial or remittitur (filed September 16, 1994 (# 66)), Heart City Toyota's petition for attorney fees (filed September 16, 1994 (# 66)), and motion for oral argument and hearing on petition for attorney fees (filed September 23, 1994 (# 69)). For the reasons which follow, the court denies Heart City's motion for judgment as a matter of law or in the alternative for new trial or remittitur, denies Heart City's petition for attorney fees, and grants Ms. Sassaman's petition for attorney fees.
Logic dictates that the court first consider Heart City's motion for judgment as a matter of law, or in the alternative, for a new trial or remittitur.
I.
Janet Sassaman sued her former employer, Heart City, under the Civil Rights Act of 1991, 42 U.S.C. § 2000e-5(f)(1) and 42 U.S.C. § 1981a, alleging sexual harassment, sexual discrimination, and retaliation. On September 1, upon completion of a four-day jury trial, the jury returned a verdict for Ms. Sassaman on her sexual harassment claim. The jury awarded Ms. Sassaman $2,000 in compensatory damages and $20,000.00 in punitive damages. The following day, the clerk entered judgment on the verdict.
A.
Heart City has moved for judgment as a matter of law, or in the alternative, for a new trial or remittitur, pursuant to Rules 50, 54, and 59 of the Federal Rules of Civil Procedure. Heart City contends that it is entitled to judgment because Ms. Sassaman failed to prove all elements of her sexual harassment claim and because the evidence, when viewed in the light most favorable to Ms. Sassaman, was insufficient to support the jury's verdict. Heart City contends that Ms. Sassaman failed to prove that Heart City management knew of the alleged sexual misconduct, but failed to take corrective action, or that sex was a factor in her treatment at Heart City.
Heart City contends that Ms. Sassaman's testimony with respect to her sexual harassment and discrimination claims was inconsistent and thus, entitled to little or no weight. Heart City also contends that Ms. Sassaman's failure to adhere to pretrial deadlines entitles it to a new trial. Finally, Heart City contends that the punitive damages award is excessive and bears no rational relation to the evidence.
Ms. Sassaman contends that Heart City has not and cannot establish the absence of evidence or reasonable inferences based on the evidence in support of her sexual harassment claim. She contends that Heart City's argument amounts to nothing more than the proposition that the jury should have afforded greater weight to Heart City's evidence than to Ms. Sassaman's evidence. Finally, Ms. Sassaman contends that Heart City has not established that the jury's award of punitive damages was grossly excessive.
A motion for judgment as a matter of law may be granted only if the evidence overwhelmingly favors the moving party.[1]Scaggs v. Consolidated Rail Corp., 6 F.3d 1290, 1293 (7th Cir.1993) (citing Ross v. Black & Decker, Inc., 977 F.2d 1178, 1182 (7th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1274, 122 L.Ed.2d 669 (1993)). The court must view the evidence in the light most favorable to the prevailing party and draw all reasonable inferences in the prevailing party's favor. Scaggs v. Consolidated Rail Corp., 6 F.3d at 1293; Tire Sales Corp. v. Cities Serv. Oil Corp., 637 F.2d 467, 472 (7th Cir.1980), cert. denied, 451 U.S. 920, 101 *908 S.Ct. 1999, 68 L.Ed.2d 312 (1981); see also Thomas v. Stalter, 20 F.3d 298, 301 (7th Cir.1994).
The court may grant a motion for judgment as a matter of law only where there is no substantial evidence or reasonable inference to support an essential element of the non-moving party's claim, Crowder v. Lash, 687 F.2d 996, 1002 (7th Cir.1982); a mere scintilla of evidence is not sufficient to support the jury's verdict. Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985). The court should grant judgment as a matter of law when "without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict...." Freeman v. Franzen, 695 F.2d 485, 488 (7th Cir.1982) (citation omitted), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983); Johnson v. Baltimore & O.R. Co., 65 F.R.D. 661, 663 (N.D.Ind. 1974), aff'd, 528 F.2d 1313 (1976); see also Lippo v. Mobil Oil Corp., 776 F.2d 706, 716 (7th Cir.1985) (witness credibility is for the jury's determination). The jury's verdict cannot be set aside "so long as it has a reasonable basis in the record." Lippo v. Mobil Oil Corp., 776 F.2d at 716 (citations omitted).
For Ms. Sassaman to prevail on her sexual harassment claim the evidence must support a finding that: (1) Ms. Sassaman suffered sexual misconduct having the purpose or effect of unreasonably interfering with her performance or creating an intimidating, hostile or offensive environment; (2) the sexual misconduct was severe and pervasive; (3) Heart City knew or had reason to know of the conduct while it was occurring; and (4) Heart City failed to take reasonable corrective action. See Harris v. Forklift Systems, Inc., ___ U.S. ___, ___ _ ___, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993); Saxton v. AT & T Co., 10 F.3d 526, 533-36 (7th Cir.1993); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir.1992).
The evidence, viewed in the light most favorable to Ms. Sassaman, with all reasonable inferences drawn in her favor, supports the jury's verdict; the evidence does not overwhelmingly favor Heart City. Ms. Sassaman testified at trial about the conduct of Kevin Cunningham (Heart City's new car sales manager), Roger Ellis (assistant sales manager at Heart City), Claire McDonald (used car sales manager at Heart City), and Gerald Suszko (general manager of Heart City).[2]
According to Ms. Sassaman, Roger Ellis had a way of humiliating her every day: he would stand in the show room and flick his tongue at her; Mr. Ellis told her about his sexual exploits with his wife and asked her to join them; he bragged to her about sliding under a female sales-person in the showroom and seeing a "juicy pussy"; when she would pick up the clean-up man Louis, Mr. Ellis would ask her if they had fun and if she liked black dicks better than white ones.
Mr. McDonald had a way of getting too close to her putting his arm around her and rubbing against her elbow. Once, Mr. McDonald brushed across her breasts. Mr. McDonald asked her many questions about being single and about her male companionship. Mr. Cunningham would laugh when Mr. Ellis flicked his tongue at Ms. Sassaman. Charles Barrett, a former salesman at Heart City, testified that he worked with Ms. Sassaman and observed her with used cars management. Mr. Barrett testified that Mr. McDonald treated her with disrespect and did not treat her like he treated the males. Mr. Barrett testified that on numerous occasions the management failed to assist Ms. Sassaman.
Ms. Sassaman testified that Mr. Cunningham treated her differently than he treated the salesmen. She testified that: she had to clean the popcorn machine when the male salespersons did not[3]; Mr. Cunningham would not allow her to let customers go alone *909 on demonstration rides when male salespersons were so allowed; Mr. Cunningham would not let her smoke although smoking was allowed on the premises and men were allowed to smoke[4]; everything Mr. Cunningham gave her he either threw at her or mixed up; Mr. Cunningham insisted that she tell him when she was taking her lunch break, but that other salesmen would come and go as they pleased; Mr. Cunningham would not permit her to use the computer locator system,[5] but permitted other salespersons to use it; and Mr. Cunningham made it difficult for her to work deals with customers.[6]
According to Ms. Sassaman's testimony, Mr. Cunningham told Ms. Sassaman to tell one customer to "fuck [her]" because he did not want to deal with him. When Ms. Sassaman switched days off with another salesperson to have her birthday off and to spend the weekend in Chicago, Mr. Cunningham ordered her to take a test at Lochmandy Motors on the day she was to have off. He would not show her how to run the computerized test; rather, he told her, "You're a woman, you can figure it out". She later learned that she could have taken the test at any time and did not have to take the entire test at once. Mr. Cunningham sent Ms. Sassaman to a seminar in Indianapolis on less than a day's notice and insisted that she ride with a new salesman, Craig. After the trip, Mr. Ellis and Cunningham asked Craig if he "got any pussy" while in Indianapolis.
On the day that Ms. Sassaman was terminated, Heart City was participating in a dealer show. Mr. Cunningham told Ms. Sassaman to stay at the store, even though she was the first on the "up" list. Although Mr. Cunningham said he would soon send a salesman to relieve her, he did not do so until noon. Mr. Cunningham brought sandwiches for all the male sales representatives, but not for Ms. Sassaman. When Mr. Cunningham told Ms. Sassaman that she was fired, he offered as an explanation that women are not cut out to be car sales people and that they should be home with their kids.
Ms. Sassaman testified that Gerald Suszko, Heart City's general manager, would inquire of her as to her love life; he persisted in questioning her although she told him it was not his concern. Ms. Sassaman testified that Mr. Suszko was aware of the sexual treatment from Mr. Ellis and Mr. Cunningham since Mr. Suszko was present on many occasions.
Dennis Lochmandy, Heart City's president, testified that he would be at Heart City for several hours each day during the relevant time period.
Heart City had a policy against sexual harassment. Ms. Sassaman testified that she did not receive a copy of Heart City's harassment policy until two weeks before she was terminated. She did not complain of the sexual harassment to any Heart City management.
Ms. Sassaman testified that Mr. Ellis's conversations about his partying and sexual exploits were humiliating and degrading and that she did not invite the conversation. She testified that she was humiliated and embarrassed by Mr. McDonald's conduct and Mr. Cunningham's treatment of her as well. Dr. Elliott testified that Ms. Sassaman perceived that she was being mistreated and unappreciated at Heart City. He also testified that, assuming Ms. Sassaman's perceptions to be accurate, a person with Ms. Sassaman's psychological make-up was likely to experience daily pain in a working environment characterized by sexual hostility.
*910 Given this evidence, evidence which is greater than a mere scintilla, see Tice v. Lampert Yards, Inc., 761 F.2d at 1213, the court cannot find that there is no substantial evidence or reasonable inference to support the essential elements of Ms. Sassaman's sexual harassment claim. Crowder v. Lash, 687 F.2d at 1002. Without weighing the witnesses' credibility, the court cannot conclude that there is but one reasonable conclusion as to the verdict, see Freeman v. Franzen, 695 F.2d at 488; Lippo v. Mobil Oil Corp., 776 F.2d at 716, or that the jury's verdict has no reasonable basis in the record. See Lippo v. Mobil Oil Corp., 776 F.2d at 716. Ms. Sassaman's testimony, if believed, supports the jury's finding that Ms. Sassaman established all the elements of her sexual harassment claim.[7] The jury reasonably could find from the evidence that Ms. Sassaman suffered severe and pervasive sexual misconduct having the purpose or effect of unreasonably interfering with her performance or creating an intimidating, hostile or offensive environment. She was subjected on a daily basis to sexual humiliation and degradation by the actions and comments of Mr. Ellis and the different standards set by and treatment of Mr. Cunningham. Male employees got too close to her, touched her, brushed her breasts, and persisted in questioning her about her love life. As Dr. Elliott testified, such encounters would likely cause Ms. Sassaman daily psychological pain.
The jury could reasonably find from the evidence that Heart City knew or had reason to know of the sexual misconduct while it was occurring, but failed to take reasonable corrective action. Even though Ms. Sassaman did not complain of the sexual harassment to any Heart City management, the jury reasonably could find that Heart City management knew, or had reason to know, of the sexual harassment. The jury reasonably could find, based on Ms. Sassaman's testimony, that Mr. Suszko was aware of or had reason to be aware of the sexual treatment from Mr. Ellis and Mr. Cunningham since Mr. Suszko was present on many of the occasions when they harassed Ms. Sassaman. The jury reasonably could find that Mr. Lochmandy, who testified that he would be at Heart City for several hours each day, knew or had reason to know of the sexual harassment.
Thus, substantial evidence and reasonable inferences support each essential element of Ms. Sassaman's sexual harassment claim. Because the evidence supports the jury's verdict, see Reboy A.O. v. Cozzi Iron & Metal, Inc., 9 F.3d 1303 (7th Cir.1993), and because the court may not grant a motion for judgment as a matter of law unless the evidence overwhelmingly favors the moving party, see Scaggs v. Consolidated Rail Corp., 6 F.3d at 1293, Heart City's motion for judgment as a matter of law must be denied.
B.
A new trial may be granted only if (1) the clear weight of the evidence is against the jury verdict, (2) the damages are excessive, or (3) the trial was not fair to the moving party for some other reason.[8]McNabola v. Chicago Transit Authority, 10 F.3d 501, 516 (7th Cir.1993); Scaggs v. Consol. Rail Corp., 6 F.3d 1290, 1293 (7th Cir. 1993); Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1196 (7th Cir.1992). In analyzing a motion for a new trial, the court must view the evidence in the light most favorable to the prevailing party, and cannot set aside the jury verdict if a reasonable basis exists in the record to support the jury's verdict. Scaggs, 6 F.3d at 1293; Allison v. Ticor Title Ins. Co., 979 F.2d at 1196; M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1407 (7th *911 Cir.1991); see also Thomas v. Stalter, 20 F.3d 298, 301 (7th Cir.1994).
As discussed above, the jury verdict is supported by a reasonable basis in the record. Having found a reasonable basis in the record to support the jury verdict, the court cannot conclude that the clear weight of the evidence is against the jury verdict. Accordingly, the defendant's motion for a new trial, on the ground that the jury's verdict is against the clear weight of the evidence, must be denied.
C.
Even though Ms. Sassaman did not present evidence regarding the worth of Heart City, the court cannot conclude that the $20,000 punitive damages award is excessive. The district court may alter a jury award if it is "monstrously excessive, born of passion and prejudice, or not rationally connected to the evidence." Dresser Industries, Inc., Waukesha Engine Div. v. Gradall Co., 965 F.2d 1442, 1446 (7th Cir.1992) (quoting Pincus v. Pabst Brewing Co., 893 F.2d 1544, 1554 (7th Cir.1990)); see also Joan W. v. City of Chicago, 771 F.2d 1020, 1023 (7th Cir.1985) (jury's verdict should be set aside only if it is monstrously excessive, or flagrantly outrageous and extravagant); Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 971 (7th Cir.1983) (jury's verdict which is grossly excessive may be set aside). In determining whether an award is "monstrously excessive", the court can consider other jury awards in similar cases. Pincus v. Pabst Brewing Co., 893 F.2d at 1554; Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir.1989). In Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1425 (7th Cir.1986), the Seventh Circuit upheld a $25,000 punitive damages award to a victim of persistent acts of racial discrimination. In Reeder-Baker v. Lincoln Nat. Corp., 649 F.Supp. 647, 663 (N.D.Ind.1986), aff'd, 834 F.2d 1373 (7th Cir. 1987), the court awarded $25,000 in punitive damages to a plaintiff who suffered racial discrimination where the defendant callously disregarded the plaintiff's rights.
The court is unpersuaded by Heart City's argument that Ms. Sassaman failed to prove her damages. The jury reasonably could find that Ms. Sassaman suffered emotional damages as a result of the sexual harassment. The court instructed the jury on compensatory damages, in part:
You may award compensatory damages for any emotional pain, suffering, inconvenience, and metal anguish, as well as any future monetary or economic losses, if you find these were caused by Heart City's allegedly illegal act. No evidence of monetary value of such pain, suffering, or mental anguish has been, or need be, introduced into evidence. There is not exact standard for fixing the compensation to be awarded for these elements of damage. Any award you make should be fair in light of the evidence presented at trial.
* * *
In determining the amount of any damages that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the fact in evidence. You may not award damages based on sympathy, speculation, or guess work.
Jury Instruction No. 15. The jury is presumed to have followed the court's instructions. See United States v. L'Allier, 838 F.2d 234, 242 (7th Cir.1988) ("Our theory of trial relies upon the ability of a jury to follow instructions."), denial of habeas corpus aff'd, 37 F.3d 1501 (1994). Ms. Sassaman testified that the conduct and comments of Mr. Ellis, Mr. Cunningham, Mr. McDonald, and Mr. Suszko were humiliating, degrading, and embarrassing. Heart City's expert, Dr. Elliott, testified that Ms. Sassaman perceived that she was being mistreated and unappreciated at Heart City. Dr. Elliott further testified that, assuming Ms. Sassaman's perceptions to be accurate, a person with Ms. Sassaman's psychological make-up was likely to experience daily pain in a working environment characterized by sexual hostility. Ms. Sassaman established that she suffered damages from the sexual harassment.
As to punitive damages, the court instructed the jury in part:
If you determine that Heart City's conduct justifies an award of punitive damages, *912 you may award an amount of punitive damages which all jurors agree is proper. In fixing the amount, you should consider the following questions: How offensive was the conduct? What amount is needed, considering the defendant's financial condition, to prevent future repetition? Does the amount of punitive damages have a reasonable relationship to the actual damages awarded?
If you do award punitive damages, you should fix the amount using calm discretion and sound reason. You must not be influenced by sympathy for or dislike of any party in the case.
Jury Instruction No. 17. The jury is presumed to have followed the court's instructions. See L'Allier, 838 F.2d at 242. The court may determine that the jury failed to follow the instruction only if the jury's damage award is so high that it could have only been the product of passion or sympathy. See Haluschak v. Dodge City of Wauwatosa, Inc., 909 F.2d 254, 256 (7th Cir.1990).
Heart City's contention that the punitive damages award is against the weight of the evidence, bears no rational relationship to the evidence, and is excessive is not persuasive. A punitive damages award of $20,000 cannot be said to be so high that it could have been the product only of passion or sympathy; rather, such an award is rationally connected to the evidence. As the Seventh Circuit has stated, "[the value of victory] [of a civil rights plaintiff] cannot be gauged by the modest size of the damages awarded." Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir.1988).
D.
Finally, Heart City contends that it is entitled to a new trial due to Ms. Sassaman's failure to adhere to the court's pretrial deadlines, which Heart City contends caused it substantial expense and disruption of its trial preparation. Heart City contends that Ms. Sassaman was able to call Dr. Elliott on a topic undisclosed to Heart City, that defense counsel spent substantial time in preparing to refute the post-traumatic stress disorder claim which was not raised at trial, and that Heart City would not have retained Dr. Elliott had Ms. Sassaman not raised the post-traumatic stress disorder claim. Heart City also contends that it was unfairly prejudiced to the extent that the jury "may" have relied on plaintiff's indirect evidence of discrimination.
Ms. Sassaman has not addressed these contentions.
On August 15, 1994, Heart City moved the court for an enlargement of time within which to comply with various pretrial deadlines set forth in the court's October 28, 1993 Order on Conduct of Trial, due to the plaintiff's inability to meet those various deadlines.[9] On August 22, the court granted the motion, affording Heart City to and including August 29 within which to comply.
Heart City provides no authority to support the proposition that Ms. Sassaman was somehow bound to present, and could not abandon, her claim for post-traumatic stress disorder. Heart City provides no authority to support the proposition that the fact that Heart City would not have retained Dr. Elliott but for Ms. Sassaman's post-traumatic stress disorder claim entitles Heart City to a new trial. The latter proposition is essentially connected with and dependent on the former proposition.
The court does not find Heart City's contention that Ms. Sassaman was able to call the defense's expert, Dr. Elliott, on a topic undisclosed to Heart City, availing. Heart City does not identify the "undisclosed topic" upon which Ms. Sassaman called Dr. Elliott; indeed, Heart City listed Dr. Elliott as an expected witness on its expert witness list. Heart City stated that Dr. Elliott would be a rebuttal witness as to Ms. Sassaman's alleged psychological injury, and Ms. Sassaman listed Dr. Elliott as an expected expert witness in her "Notice of Experts", filed August 15 and served on Heart City on August 12. Ms. Sassaman stated that Dr. Elliott would testify regarding the psychological impact *913 on her as an employee of Heart City. Although Heart City may have been somewhat prejudiced to the extent that its trial preparation was disrupted by Ms. Sassaman's failure to meet pretrial deadlines, the court cannot find that any such prejudice is sufficient enough to entitle Heart City to a new trial.
Finally, the court must reject Heart City's contention that it was unfairly prejudiced to the extent that the jury "may" have relied on plaintiff's indirect evidence of discrimination. Heart City's contention is based on mere speculation, as noted by the use of the word "may." Further, as explained previously, the evidence supported the jury's verdict on her sexual harassment claim. As recently expressed by the Seventh Circuit, a plaintiff can elect to proceed under direct proof rather than indirect proof. Equal Employment Opportunity Comm'n v. G-K-G Inc., 39 F.3d 740, 747 (7th Cir.1994).
Accordingly, Heart City's alternative motion for new trial or remittitur must be denied.
II.
Heart City contends that it is entitled to an award of attorney fees as the prevailing party on Ms. Sassaman's sexual discrimination and retaliation claims. Counsel for Heart City states that it spent "well in excess of 50%" and "probably closer to 80-85%" of their time with respect to those claims.
As to Ms. Sassaman's petition for attorney fees, Heart City contends that any award of attorney fees should be limited to fees incurred for work relating to the claim on which Ms. Sassaman prevailed. Heart City contends that sexual harassment and sexual discrimination are separate claims for relief, and that Ms. Sassaman has not established that work done in support of the sexual harassment claim was done in support of the sexual discrimination claim as well. Heart City also challenges various fee petition entries: conversations with Ms. Sassaman's family, pre-litigation activity, time expended in preparing the petition for attorneys fees, unused witnesses and theories, witness and mileage fees, and the total hours billed for closing argument and verdict. Heart City also takes issue with the hourly rates of Mr. Hamilton and Mr. Don G. Blackmond II.
Ms. Sassaman contends that she is entitled to an award of attorney fees and costs as the prevailing party on her sexual harassment claim. Ms. Sassaman contends that all factual and legal issues in the cause were sufficiently linked such that success as to one was success as to all. Ms. Sassaman's attorney, John C. Hamilton, states that his hourly rate in this case was $150.00, but that he raised his hourly rate for all new employment discrimination cases to $175.00, effective August 1, 1994. Attorney Timothy W. Woods states that he is familiar with the prevailing hourly rates for trial attorneys in employment discrimination law in the area and that $175.00 is a reasonable hourly rate. Mr. Woods further states that a $175.00 hourly rate for Mr. Hamilton is reasonable. Ms. Sassaman seeks to recover fees for services provided by Mr. Blackmond, a 1994 cum laude graduate of Valparaiso Law School, but unlicensed to practice as an attorney, at an hourly rate of $80.00, and for Thomas H. Kingston, a law clerk with one year's law school experience, at an hourly rate of $40.00.
Ms. Sassaman contends that the initial amount of fees generated is $22,339.00 or $24,517.50 (if Mr. Hamilton's fees are calculated at the rate of $175.00 per hour), and that the initial amount of costs and expenses incurred are $2,956.46. Ms. Sassaman filed a supplemental petition for attorneys fees and costs incurred subsequent to the filing of her original fee petition, seeking an additional $5,401.00 in attorneys fees and $24.60 in costs. She also filed a second supplemental affidavit in support of her petition for award of attorneys fees and costs, seeking $100.00 for the video taping of the cut brake line. Ms. Sassaman contends that she has tried to minimize additional fees incurred; Mr. Blackmond rather than Mr. Hamilton provided most of the services with respect to the supplemental petition. Plaintiff's counsel has verified all costs and attorneys fees incurred.
In the weeks before trial, Ms. Sassaman offered to settle all claims with Heart City for the sum of $22,000, including attorneys fees and expenses. Hamilton Aff., ¶ 7. Ms. *914 Sassaman contends that the jury's verdict in the total amount of $22,000 establishes her complete success.
42 U.S.C. § 2000e-5(k) provides in pertinent part, "In any action or proceeding under this title [Title VII], the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, authorizes a district court to award a reasonable attorney fee to the prevailing party in civil rights litigation. 42 U.S.C. § 1988; see also Munson v. Milwaukee Bd. of School Directors, 969 F.2d 266, 269 (7th Cir.1992). In determining whether to award reasonable attorney fees, district courts should apply separate standards depending upon whether the plaintiff or the defendant is the prevailing party. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Unity Ventures v. County of Lake, 894 F.2d 250, 253 (7th Cir.1990). A plaintiff who succeeds on "any significant issue in litigation which achieves some of the benefit sought in bringing suit" may be deemed a prevailing party, see Unity Ventures v. Lake County, 894 F.2d at 253 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)), but stricter standards apply in the case of a prevailing defendant. The separate standards are necessary to ensure that plaintiffs with valid claims bring civil rights suits, while plaintiffs with frivolous claims are deterred. Coates v. Bechtel, 811 F.2d 1045, 1049-50 (7th Cir.1987).
A.
The Christiansburg standards for determining whether a prevailing defendant is entitled to an award of costs and attorney fees apply under 42 U.S.C. § 1988. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); LaSalle Nat'l Bank of Chicago v. County of DuPage, 10 F.3d 1333, 1340 (7th Cir.1993); Coates v. Bechtel, 811 F.2d 1045, 1049 n. 3 (7th Cir.1987); Munson v. Friske, 754 F.2d 683, 696 n. 9 (7th Cir. 1985). The district court may, in its discretion, award attorney fees to the prevailing defendant "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation," Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); see also Coates v. Bechtel, 811 F.2d at 1050; Tarkowski v. County of Lake, 775 F.2d 173, 176 (7th Cir. 1985); Munson v. Friske, 754 F.2d 683 (7th Cir.1985), where "the plaintiff continued to litigate after it clearly became so," Coates v. Bechtel, 811 F.2d at 1049 (quoting Christiansburg Garment Co., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)); Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1163-64 (7th Cir.1983), or where the plaintiff brought the action in subjective bad faith. Unity Ventures v. Lake County, 894 F.2d 250, 253 (7th Cir.1990). That the jury finds in favor of the defendant on a claim does not render that claim meritless or without foundation so as to justify an award of attorney fees and costs to a defendant. LaSalle Nat'l Bank of Chicago, 10 F.3d at 1340 (quoting Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980)).
The court must determine whether a plaintiff's claim was "`frivolous, unreasonable, or without foundation' as of the time of the filing of the suit, not with `hindsight logic' after judgment has been entered against him." Coates v. Bechtel, 811 F.2d at 1050 (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. at 422, 98 S.Ct. at 700). The plaintiff's version of the facts that form the basis of the suit is to be considered when determining whether an award of attorney fees is appropriate. Coates v. Bechtel, 811 F.2d at 1052 n. 5 (citing Christiansburg Garment Co., 434 U.S. at 422, 98 S.Ct. at 700; Hermes v. Hein, 742 F.2d 350, 357-58 (7th Cir.1984)). An action is more likely frivolous when brought solely to harass or oppress the defendant, see Munson v. Friske, 754 F.2d at 697 (fee award upheld where plaintiff brought the action to further a personal vendetta); Reichenberger v. Pritchard, 660 F.2d 280, 289 (7th Cir.1981), but a fee award is not contingent upon a finding of bad faith on behalf of the plaintiff. Coates v. Bechtel, 811 F.2d at 1049 (citing Tarkowski v. County of Lake, 775 F.2d at 176).
Given the strict standards applicable to the claims on which the defendant prevailed, *915 the court cannot conclude that Heart City is entitled to an award of attorney fees and costs. First, Ms. Sassaman did not press her claims in the face of a previous adverse ruling. Second, there is no indication that Ms. Sassaman commenced this action in subjective bad faith, merely to harass or oppress Heart City; recognizing that subjective bad faith is not a prerequisite to an award of fees, in the absence of bad faith, the court should exercise great caution to ensure that plaintiffs with valid claims bring civil rights actions. Third, there is no indication that Ms. Sassaman was aware with any degree of certainty of a factual or a legal infirmity with respect to her retaliation or sexual discrimination claims.
Viewing the facts relevant to the retaliation and sexual discrimination claims as set forth in the plaintiff's complaint, an award of attorney fees would not be appropriate. Such factual allegations, if believed, could support claims for sexual discrimination and retaliation. See Rush v. United States, 559 F.2d 455, 458 (7th Cir.1977). The court denies Heart City's petition for attorney fees.
B.
Ms. Sassaman is entitled to an award of attorney fees as the prevailing party in this cause, but the district court must determine what fee is "reasonable." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1982). The Supreme Court's holding in Hensley v. Eckerhart instructs the courts as to determining an attorneys fees award when the prevailing party did not prevail on all of its claims:
the extent of the plaintiff's success is a crucial factor in determining the proper amount of an award of attorneys fees under 42 U.S.C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorneys fees reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.
Hensley v. Eckerhart, 461 U.S. at 440, 103 S.Ct. at 1943; see also Texas State Teachers Ass'n v. Garland Ind. Schl. Dist., 489 U.S. 782, 791-93, 109 S.Ct. 1486, 1493-94, 103 L.Ed.2d 866 (1989); Nanetti v. University of Illinois at Chicago, 944 F.2d 1416, 1419 (7th Cir.1991) ("when time is spent jointly preparing two distinct claims, the fact that one claim produces no recovery will not deprive the plaintiff of every hour spent in joint preparation"); Zabkowicz v. West Bend Co., Div. of Dart Indus., 789 F.2d 540 (7th Cir. 1986). The court may consider the damages sought in relation to the damages award received when determining the extent of the prevailing plaintiff's success. E.g., Ralstin v. NIPSCO, 54 Fair Empl.Prac.Cas. 226, 229 (BNA), 1990 WL 258770 (N.D.Ind. Sept. 20, 1990); Stewart v. County of Sonoma, 634 F.Supp. 773, 777 (N.D.Cal.1986).
In Nanetti, 944 F.2d at 1417, a university professor sued her employer under Title VII for discriminatory denial of tenure and for a higher salary. The university granted Nanetti tenure, the parties settled the salary dispute, and Nanetti sought an award of attorneys fees. Id. In holding that the district court's finding that certain legal work related to both the tenure and salary claims was not an abuse of discretion, the Seventh Circuit explained:
The legal theories in each of Nanetti's claims were the same. Nanetti based her claims on Title VII and its prohibitions against discrimination on the basis of gender. Title VII does not distinguish between discrimination in denial of tenure and discrimination in salary. Both can be unlawful employment practices.
....
The facts underlying each of Nanetti's claims too were similar. The University was a defendant for both claims. In both instances Nanetti would have had to prove at trial that she was a female and that the University intentionally treated her differently from similarly situated male professors. As a result, Nanetti would have had *916 to investigate who at the University made these decisions, how they were made and their historical results.... In short, legal work on the University's tenure decisions easily could have duplicated legal work on the University's salary decisions.
Nanetti, 944 F.2d at 1419 (citation omitted); see also Tidwell v. Fort Howard Corp., 989 F.2d 406, 412-13 (10th Cir.1993); Zabkowicz, 789 F.2d at 551 (prevailing plaintiffs may be entitled to award for time spent on claims arising from a common factual core or based on related legal theories). The court may determine whether claims are sufficiently related for purposes of an attorneys fees award by determining whether the claims seek relief from essentially the same course of conduct. Zabkowicz, 789 F.2d at 551. Claims that involve a common core of facts, though based on distinct legal theories, are sufficiently related. Id.
As in Nanetti, and Zabkowicz, the legal theories in Ms. Sassaman's claims for sexual harassment and sexual discrimination were the same. Both claims were based on Title VII and its prohibitions against discrimination on the basis of gender. Both sexual harassment and sexual discrimination can be unlawful employment practices. The facts underlying the sexual harassment and sexual discrimination claims were similar. Heart City was a defendant for both claims. Under both claims, Ms. Sassaman would have had to prove at trial that Heart City intentionally treated her differently from similarly situated male salespersons. The legal work on the sexual harassment claim easily could have duplicated legal work on the sexual discrimination claim. The sexual harassment and sexual discrimination claims sought relief from essentially the same course of conduct and therefore for all these reasons, the claims are sufficiently related. Further, the substantial extent of Ms. Sassaman's success is evidenced by the jury's verdict of $22,000 in comparison to the $22,000 in damages Ms. Sassaman sought in the weeks prior to trial. Ralstin v. NIPSCO, 54 Fair Empl.Prac.Cas. (BNA) at 229, 1990 WL 258770; Stewart v. County of Sonoma, 634 F.Supp. at 777.
Although a more difficult question, the court cannot find that the retaliation claim is distinct in all respects from the sexual harassment claim. The retaliation claim arose from a set of facts that included Ms. Sassaman's filing of an EEOC complaint relating to the sexual harassment and discrimination. Had Ms. Sassaman proved her retaliation claim at trial, the claim would have been premised in part upon the filing of a claim for underlying sexual harassment and discrimination. Furthermore, in light of Ms. Sassaman's settlement offer in the weeks prior to trial, and the jury's verdict in the same amount, the court finds that Ms. Sassaman's overall success in this cause was substantial.
Because Ms. Sassaman's cause of action consisted of related claims, and because she has won substantial relief, her attorneys fees should not be reduced because she did not prevail on all of her claims. Hensley v. Eckerhart, 461 U.S. at 440, 103 S.Ct. at 1943; see also Texas State Teachers Ass'n v. Garland Ind. Schl. Dist., 489 U.S. at 791-93, 109 S.Ct. at 1493-94; Nanetti v. University of Illinois at Chicago, 944 F.2d at 1419; Zabkowicz v. West Bend Co., Div. of Dart Indus., 789 F.2d 540 (7th Cir.1986). Therefore, the court overrules Heart City's objection to a fee recovery including fees for time spent on the sexual discrimination and retaliation claims.
Hensley v. Eckerhart provides further guidance to the court for determining the amount of a reasonable attorneys fee:
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.
461 U.S. at 433, 103 S.Ct. at 1939; see also Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129, 1137 (7th Cir.1987). The district court "should exclude *917 from this initial fee calculation" hours that were not "reasonably expended." Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1939 (citation omitted). Attorneys fees incurred in litigating fee issues and post-trial motions are recoverable. Matter of Burlington Northern, Inc. Employment Practices Litigation, 832 F.2d 430, 434 (holding that Hensley v. Eckerhart applies to a fee award for seeking fees); see also Nanetti v. University of Illinois at Chicago, 944 F.2d 1416, 1421 (7th Cir.1991) (awarding attorneys fees incurred in preparing and litigating fee petition). Costs incurred in trial preparation are compensable. Zabkowicz, 789 F.2d at 553-54; Ralstin v. NIPSCO, 54 Fair Empl.Prac. Cas. (BNA) 226, 229-30, 1990 WL 258770 (N.D.Ind. Sept. 20, 1990). The prevailing party may recover interest on attorneys fees and costs awarded from the date the award was entered. Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 776 F.2d 646, 662 (7th Cir. 1985).
Heart City raises specific arguments concerning the plaintiff's fee petition. Heart City contends that conversations between plaintiff's counsel and Ms. Sassaman's family are unrelated to Ms. Sassaman's success. The court agrees that the time represented in the entries of 03/17/93 and 07/19/94 relating to telephone conferences with Cullen Walton were not reasonably expended on the litigation. The entries do not allocate the amount of time expended for the individual activities represented. Although these entries encompass other activities for which time was reasonably expended, the court is not required to allocate the time spent on each activity within an entry, and so will disallow the entire entry. The court will deduct these entries and the amounts of $90.00 and $300.00 from the fee award.
As to the 08/25/94 and 08/28/94 entries, the court disagrees that the time was not reasonably expended. Those entries reflect that Ms. Sassaman was a party to the conferences that included Mr. Walton. A conference between attorney and client does not become unreasonable simply because another person is present. These latter two entries will be included in the fee award.
Heart City contends that pre-litigation activity does not bear a reasonable relation to Ms. Sassaman's success, yet provides no support for its contention. The court cannot agree with that contention. Initial factual and legal research regarding anticipated litigation is not only reasonable, but necessary under Rule 11. The court will allow recovery for time spent on pre-litigation activities.
Because it is well-established that a party may recover attorneys fees for time spent in preparing a fee petition, see Burlington Northern, Inc., 832 F.2d at 434, the court overrules Heart City's objection to preparation time for the fee petition.
Heart City also contends that fees incurred with respect to witnesses not called to testify at trial and with respect to the post-traumatic stress disorder theory are not recoverable. Heart City cites no authority for the proposition that the mere fact that a witness did not testify renders time spent with such a witness unreasonable. Ms. Sassaman represents that these witnesses provided information regarding her claims. An attorney may, and should, interview witnesses who have factual information regarding claims asserted. Ms. Sassaman represents that the services of her expert witness, Dr. Funk, were essential in evaluating the opinions rendered by Heart City's expert witness, Dr. Elliott, and in enabling her to call Dr. Elliott as her own witness. Therefore, the court will allow recovery for time spent with the witnesses Dr. Funk, Cecil Kelber, Floyd Husvar, Melissa Clark, and Cullen Walton.
Heart City implicitly objects to the entry for September 1, 1994, in which Mr. Hamilton billed 6.5 hours. Heart City contends that "[c]learly not all of this time related to the final day of trial as the jury recessed much before the lunch break. Defendant's lead counsel only charged 4 hours that day." The entry stands on its own. The entry provides in pertinent part:
Review court's proposed instructions in light of both sides' proposed instructions and prepare objections. Review verdict form carefully in light of new act. Organize *918 and prepare for final argument. Go to court. Settle instructions. Make final preparations for final argument and present same. Attend instructions to jury. Confs with Janet S. throughout. Return to court for verdict. Receive verdict and conf with Janet S. Return to office and begin preparing fee petition.
The court finds nothing unreasonable about a 6.5 hour expenditure for all of these activities, activities directly related to Ms. Sassaman's final day of trial. The court cannot understand Heart City's contention that Mr. Hamilton could not have completed most of these activities prior to the jury's recess "much before the lunch break." Nothing negates the possibility that much of these activities, including review of the proposed instructions and preparation of final argument by Mr. Hamilton, occurred in the early morning hours before the start of the trial day. Therefore, the court will allow recovery for the 6.5 hours reasonably spent on September 1, 1994.
Heart City objects to the entries for 08/25/94, 08/11/94, 08/25/94, and 09/07/94 on the grounds that the witness and mileage fees lack specificity and that some of the witnesses were not called to testify at trial. As in Ralstin v. NIPSCO, 54 Fair Empl. Prac.Cas. (BNA) 226, 229-30, 1990 WL 258770 (N.D.Ind. Sept. 20, 1990) (taxing costs for fees for two witnesses who did not testify at trial), the "proper showing of necessity" has been made: the bill of costs has been verified by Mr. Hamilton. Therefore, the court will allow recovery for these items.
Heart City objects to the $80.00 hourly rate charged for Mr. Blackmond as unreasonable and excessive. Heart City does not indicate what rate it would deem reasonable. Heart City contends that the hourly rate is particularly troubling because most of the time charged was spent performing messenger services. See Entries at 08/18/94, 08/23/94, 08/24/94, 08/26/94, 08/29/94, 08/30/94, 08/31/94, and 09/01/94. Heart City also objects for the time billed by Mr. Hamilton for filing Ms. Sassaman's trial brief. See Entry at 08/19/94. Ms. Sassaman has not responded to these objections.
This court has stated previously that "when an attorney performs a task that could be handled by clerical staff, the opponent should not be charged the attorney's hourly rate." Ralstin v. NIPSCO, 54 Fair Empl.Prac.Cas. (BNA) at 229, 1990 WL 258770. The filing of papers is a task which could be handled by clerical staff. Id. Therefore, the court finds that Heart City should not be charged for Mr. Hamilton's time spent filing Ms. Sassaman's trial brief. Following the reasoning of Ralstin, the court agrees with Heart City that the $80.00 hourly rate charged for messenger and delivery services provided by Mr. Blackmond is unreasonable and excessive. Therefore, the court will reduce the hourly rate charged for these services to $35.00 per hour (the rate sought by Heart City for such services). The court is aware that the time charged on September 1, included time spent on legal research, see 09/01/94, but the court cannot determine what percentage of the time charged in one entry was spent on any particular activity.
The court disagrees with Heart City's contention that the $80.00 for other (non-messenger type) services performed by Mr. Blackmond, a cum laude law school graduate, but unlicensed attorney, is unreasonable. Heart City has provided no authority to support its assertion that the $80.00 hourly rate is unreasonable. On the other hand, Mr. Hamilton has verified in his affidavit that the $80.00 hourly rate is a reasonable one. The court finds that a reasonable hourly rate for a cum laude law school graduate not yet licensed to practice is $80.00. Therefore, the court will use $80.00 as the hourly rate for services (other than messenger-type services) provided by Mr. Blackmond.
Finally, the court agrees that Mr. Hamilton should be compensated at the $150.00 hourly rate for which he and Ms. Sassaman contracted, rather than the $175.00 hourly rate which is reasonable in the community and which he now charges for new employment discrimination cases. Gusman v. Unisys Corp., 986 F.2d 1146, 1149-1150 (7th Cir.1993) ("A client who retains a lawyer with an hourly rate of $100, when the average in the community is $150, is entitled to *919 collect from his adversary only $100 for each hour reasonably expended.").
Accordingly, the court finds that Ms. Sassaman should be awarded the following in attorneys fees and costs:
____________________________________________________
Attorney John C. Hamilton (143.4 hours
at $150.00 per hour) $21,510.00
____________________________________________________
Law graduate Don G. Blackmond II
(59.5 hours at $80.00 per hour, and 7.25
hours at $35.00 per hour) $ 5,013.75
_____________________________________________________
Law clerk Thomas H. Kingston (2 hours
at $40.00 per hour) $ 80.00
_____________________________________________________
TOTAL ATTORNEYS' FEES $26,603.75
_____________________________________________________
TOTAL ITEMIZED COSTS $ 3,081.06
_____________________________________________________
TOTAL AWARD $29,684.81
_____________________________________________________
III. Conclusion
For the foregoing reasons, the court now:
(1) DENIES Heart City Toyota's motion for judgment as a matter of law or in alternative, for new trial or remittitur (filed September 16, 1994 (# 66-1) and (# 66-2));
(2) DENIES Heart City Toyota's petition for attorney fees (filed September 16, 1994 (# 66-3));
(3) DENIES Heart City Toyota's motion for oral argument and hearing on petition for attorney fees (filed September 23, 1994 (# 69)); and
(4) GRANTS Janet Sassaman's petition for attorney fees (filed September 8, 1994 (# 61)), AWARDING Ms. Sassaman $26,603.75 in attorneys fees and $3,081.06 in costs for a total award of $29,684.81, to be taxed against Heart City.
The clerk is directed to enter judgment accordingly.
SO ORDERED.
NOTES
[1] Rule 50 of the Federal Rules of Civil Procedure, which governs motions for judgment as a matter of law, provides in pertinent part:
Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed by service and filing not later than 10 days after entry of judgment. A motion for a new trial under Rule 59 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative. If a verdict was returned, the court may, in disposing of the renewed motion, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law.
[2] These individuals denied Ms. Sassaman's allegations.
[3] Before Mr. Cunningham arrived at Heart City, everyone took turns cleaning a popcorn machine on a daily basis, but after Mr. Cunningham arrived she found herself to be the only one cleaning the machine. Mr. Cunningham told Ms. Sassaman that cleaning the popcorn machine was a woman's job.
[4] Ms. Sassaman testified that Mr. Cunningham told her that women do not look good smoking.
[5] Mr. Cunningham told her that it was Mr. Ellis's job, but other salesman used the computer themselves. On one occasion Mr. Cunningham told her that she had no right to locate and contact a dealer to sell a vehicle which was not in stock; he told her never to use the computer again.
[6] Ms. Sassaman testified that Mr. Cunningham would not let her go to lunch if she was at the bottom of the "ups", but when she was "up next" he would send her to pick up Louis, the clean-up man. On every transaction, Mr. Cunningham wanted deposits or down payments up front before he would give her any figures. Other salesman were able to take used cars for appraisal, had access to the invoices and were not required to take money up front. They were allowed to "work" the deals, but she was not.
[7] There was no evidence that the male salespersons were subjected to the same or similar sexual comments, innuendo, touching, sexual invitations, or discussions of sexual exploits. Therefore, the instant cause is distinguishable from Vore v. Indiana Bell Telephone Co., 32 F.3d 1161 (7th Cir.1994), where none of the plaintiffs alleged that their employer treated them differently on account of their race.
[8] Rule 59 of the Federal Rules of Civil Procedure, which governs motions for a new trial, provides in pertinent part:
A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States....
[9] Ms. Sassaman had failed to provide Heart City with her trial brief, proposed jury instructions, proposed voir dire, and objections to the pretrial materials filed by Heart City. On August 15 Ms. Sassaman provided Heart City with her identification of certain rebuttal exhibits, designation of deposition excerpts to be used at trial, and expert witness list. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345837/ | 114 Wash. 2d 485 (1990)
789 P.2d 731
In the Matter of the Personal Restraint of PATRICK JAMES JEFFRIES, Petitioner.
No. 56153-2.
The Supreme Court of Washington, En Banc.
April 5, 1990.
Brian Reed Phillips and Stephanie Ross, for petitioner.
*487 David H. Bruneau, Prosecuting Attorney, and Christopher Melly, Chief Deputy, for respondent.
DORE, J.
This is Patrick James Jeffries' third personal restraint petition challenging his 1983 aggravated first degree murder convictions and death sentence. The court has now considered the petition, the parties' briefs, and the State's motion to dismiss the petition as repetitive. See RAP 16.4(d). We have also reviewed the trial transcript. For the reasons discussed below, we grant the State's motion in part and dismiss the petition in its entirety.
PROCEDURAL BACKGROUND
Petitioner was represented at trial by attorneys Mark Mestel and Walter Sowa. Attorney Brian Phillips, who practices in the same office as Mr. Mestel, represented petitioner on appeal[1] and in one of his two previous personal restraint petitions.[2] Mr. Sowa acted as counsel in the other personal restraint proceeding, which was filed while the direct appeal was still pending.[3] In the present petition, attorneys Phillips and Stephanie Ross raise some 29 issues, most of which were rejected on their merits in one or more of the prior proceedings. (See appendix for a list of all 29 issues with citations to the portions of our prior opinions addressing the renewed claims.)
[1, 2] A claim rejected on its merits on direct appeal will not be reconsidered in a subsequent personal restraint petition unless the petitioner shows that the ends of justice would be served thereby. In re Taylor, 105 Wash. 2d 683, 687, 717 P.2d 755 (1986). Nor may a prisoner bring "more than *488 one petition for similar relief" absent a showing of "good cause". RAP 16.4(d). A successive petition seeks "similar relief" if it raises matters which have been "previously heard and determined" on the merits or "if there has been an abuse of the writ or motion remedy". In re Haverty, 101 Wash. 2d 498, 503, 681 P.2d 835 (1984) (quoting Sanders v. United States, 373 U.S. 1, 15, 17, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963)). We will discuss these concepts in more detail in connection with petitioner's renewed claims and those he contends are new.
RENEWED CLAIMS
[3] Petitioner does not claim to have good cause for renewing the vast majority of the previously rejected issues. He contends only that approximately seven of these issues either have been "so substantially revised" as to constitute "new" claims or are supported by "new and persuasive authority". Brief of Petitioner, at 2.[4] A material intervening change in the law would constitute good cause to permit a successive petition under RAP 16.4(d). In re Taylor, supra at 688 (quoting Sanders v. United States, supra at 16-17). Simply "revising" a previously rejected legal argument, however, neither creates a "new" claim nor constitutes good cause to reconsider the original claim. As the Supreme Court observed in Sanders, "identical grounds may often be proved by different factual allegations. So also, identical grounds may be supported by different legal arguments, ... or be couched in different language, ... or vary in immaterial respects". (Citations omitted.) Sanders v. United States, supra at 16. Thus, for example, "a claim of involuntary confession predicated on alleged psychological coercion does not raise a different `ground' than does one predicated on physical coercion". Sanders, at 16.
*489 Petitioner's "revised" arguments in support of his previously rejected claims similarly do not constitute new or different grounds for relief. Additionally, the case law he cites as "new" is for the most part inapposite.
His renewed challenge to the proportionality of his death sentence, however, does involve intervening developments in our approach to proportionality review. Petitioner's direct appeal was only the second case in which we were required to conduct the proportionality review required by RCW 10.95.130. See State v. Campbell, 103 Wash. 2d 1, 25, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985); Jeffries I, at 430.[5] The several capital cases we have decided since that time have given us both a larger database of potentially "similar cases" and an opportunity to refine our proportionality analysis. See State v. Rupe, 108 Wash. 2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988); State v. Rice, 110 Wash. 2d 577, 627, 757 P.2d 889 (1988), cert. denied, 109 S. Ct. 3200 (1989); State v. Harris, 106 Wash. 2d 784, 799, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987); State v. Mak, 105 Wash. 2d 692, 755, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). Since application of that analysis in petitioner's case would serve the ends of justice, we will address the merits of this issue. See In re Taylor, supra at 688 (issue decided on direct appeal will be addressed in subsequent personal restraint petition if to do so would serve the ends of justice).[6]
[4, 5] Petitioner contends that his sentence is disproportionate to the prison terms imposed in numerous aggravated first degree murder cases in which the State did not seek the death penalty. The proportionality of a particular *490 defendant's death sentence does not depend upon the State's seeking the death penalty in every case, however, or even in some threshold proportion of cases. The charging decision must be based, in each case, on the prosecutor's assessment of the State's ability to prove there are insufficient mitigating circumstances to merit leniency. RCW 10.95.040(1); State v. Campbell, supra at 25; State v. Bartholomew, 104 Wash. 2d 844, 849, 710 P.2d 196 (1985). A jury's decision to impose a death sentence must similarly be based on the jurors' determination that the State has met its burden of proof. See RCW 10.95.060(4), .080(1); State v. Mak, supra.
The purpose of proportionality review is not to second-guess evidentiary determinations or value judgments inherent in prosecutors' charging decisions or juries' verdicts in other cases. The purpose is instead to ensure that a death sentence is not "affirmed where death sentences have not generally been imposed in similar cases, nor where it has been `wantonly and freakishly imposed.'" State v. Rupe, supra at 767 (quoting State v. Harris, supra at 798). A proper definition of the universe of "similar cases" is essential to a meaningful determination of these questions and requires a careful examination of the circumstances of the crimes and the defendants' personal characteristics. State v. Rupe, supra at 768-70; State v. Rice, supra at 625-28. Simply comparing numbers of victims or other aggravating factors may superficially make two cases appear similar, where in fact there are mitigating circumstances in one case to explain either a jury's verdict not to impose the death penalty or a prosecutor's decision not to seek it. See State v. Mak, supra at 724-25 (mitigating circumstances shown as to one of two codefendants convicted of the same murders).
One of the cases petitioner and the dissent cite as "similar" provides a good example of this point. State v. Kincaid, 103 Wash. 2d 304, 306-11, 692 P.2d 823 (1985). In Kincaid, the State did not seek the death penalty against a *491 defendant who killed his wife and sister-in-law. While the number of victims may suggest that Kincaid is a "similar case", there are several pertinent distinguishing features. The killings in Kincaid were committed following an emotional marital breakup rather than in the course of another crime. Additionally, the defendant attempted to kill himself after the murders, and he presented a diminished capacity defense at trial which led the jury to convict him only of second degree murder for one of the killings. Considering all of the pertinent facts, we do not find Kincaid to be "similar" to the present case for purposes of proportionality review. See State v. Rupe, supra at 769; State v. Rice, supra at 626 (Kincaid not included in the universe of "similar" multiple murder cases).
With respect to the proven aggravating factors multiple premeditated murders committed during another felony Rupe and Rice are both "similar" to the present case. State v. Rupe, supra at 769; State v. Rice, supra at 626. Indeed, the similarities between this case and Rupe make the universe of similar cases we defined there equally pertinent here. It is therefore unnecessary to reexamine reported murder cases or the reports filed pursuant to RCW 10.95.130 in order to define the appropriate universe. We also decline to reconsider petitioner's proportionality claims based on assertedly similar new murder cases. Engaging in that inquiry would result in a never ending sentence review.
Considering the universe of similar cases we considered in Rupe in upholding his death sentence, petitioner's sentence is also neither excessive nor disproportionate. His artistic talent does not distinguish him from Rupe, who was involved in community service projects prior to his crimes. Moreover, unlike petitioner, Rupe relied on a lack of prior criminal history as a mitigating factor. Rupe, at 770.
In sum, petitioner's death sentence is neither excessive nor disproportionate when compared to the death sentences this court has since upheld in similar cases.
*492 "NEW" ISSUES
As noted above, we will not consider even a "new" issue raised in a successive petition if the petitioner abuses the writ by raising that issue. In re Haverty, supra at 503 (following Sanders v. United States, supra).[7]
[6] Contrary to the suggestions on page 499 of Justice Brachtenbach's concurring/dissenting opinion, we are not creating "a per se rule that the advancing of new issues in successive petitions constitutes an abuse of the [writ]". We hold only that, if the petitioner was represented by counsel throughout postconviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was "available but not relied upon in a prior petition". Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). Not every "new" issue will meet this description. If the claim is based upon newly discovered evidence, for example, or upon intervening case law, it would not have been "available" in the prior petition. If, on the other hand, counsel was fully aware of the facts supporting the "new" claim when the prior petition was filed, and there are no pertinent intervening developments, raising the "new" claim for the first time in a successive petition constitutes needless piecemeal litigation and, therefore, an abuse of the writ. See Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir.1989).
We now apply this test to each of the claims petitioner describes as new. (We identify and number these issues as they appear in petitioner's brief.)
"5. Newly discovered evidence." Brief of Petitioner, at 88. This claim involves evidence that the manager of a travel agency in Sequim saw three "very sinister looking" men in a big Buick with California license plates on the morning of March 19, 1983 (the last day the victims were *493 seen alive.) Clerk's Papers, at 34. One of the men came inside the travel agency and asked for an address on Barr Road Extension and showed the manager a telephone number. She did not know where Barr Road Extension was and offered to call the number for the man. He grabbed the paper back and drove to a nearby gas station, presumably to get directions. Clerk's Papers, at 35.
Defense counsel presented this evidence to the trial court in 1983, in support of an unsuccessful motion for new trial. Report of Proceedings 15C, at 23. The issue was therefore available to petitioner and his attorneys when he filed his first and second personal restraint petitions. To raise the issue for the first time in his third petition is an abuse of the writ.
Additionally, "newly discovered evidence" is grounds for relief in a personal restraint proceeding only if "[m]aterial facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction [or] sentence ...". RAP 16.4(c)(3). The evidence petitioner relies upon was "presented and heard" by the trial court more than 6 years ago and does not "in the interests of justice require vacation" of his conviction or death sentence.
Such relief would be merited only if, among other things, the evidence would have been admissible at trial and would probably have changed the outcome. E.g., State v. Williams, 96 Wash. 2d 215, 223, 634 P.2d 868 (1981). In order to present the evidence of the three "sinister looking" men at trial, petitioner would first have had to lay a foundation tending to clearly point to those men as the guilty parties. State v. Mak, supra at 716. In its oral ruling denying the motion for new trial, the trial court noted that "Barr Road Extension is not the Barr Road, the place of these crimes" and that there was "absolutely no evidence at all that ... there was a Buick with California plates at or near the scene of the crime". Report of Proceedings 15C, at 23. As *494 we pointed out on appeal, there was a great deal of evidence placing petitioner at the scene of the crimes and in possession of the victims' money and property the day following their disappearances. Jeffries I, at 401-09.
"6. Prejudicial testimony: petitioner in jail." Brief of Petitioner, at 96. This issue involves a prosecution witness' statement that he first heard of petitioner when petitioner was in jail in Canada. Report of Proceedings 4C, at 113. Defense counsel immediately objected to this remark and moved for a mistrial. The trial court directed the jury to disregard the remark, using language suggested by defense counsel, but denied the motion for a mistrial. As with the newly discovered evidence issue, this claim, which was known to trial counsel, was available to petitioner in the prior personal restraint proceedings. He is abusing the writ by raising the issue only now.[8]
"9. Mitigating circumstances (plural)." and "10. Having in mind the crime." Brief of Petitioner, at 107, 121. These two claims involve the jury interrogatory required by RCW 10.95.060(4): "Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?" Petitioner contends that the use of the plural "circumstances" required the jury to find at least two mitigating circumstances in order to vote against the death penalty. He also argues that beginning the inquiry with the phrase "having in mind the crime" *495 invalidly limits the jury's consideration of mitigating factors to circumstances relating to the crime itself, thus eliminating consideration of factors relating to the defendant's personal characteristics.
Petitioner did not make these particular arguments at trial, on appeal, or in his previous personal restraint petitions, although he was aware of the wording of the jury interrogatory on appeal and challenged it on other grounds at that time. Jeffries I, at 420-23. The legal theories underlying his present challenges to the same interrogatory are not based on intervening case law, and could have been identified and argued when he filed the prior petitions. This also is an abuse of the writ.[9]
"14. Waiver of right to counsel." Brief of Petitioner, at 161. Petitioner next claims he invalidly waived his right to counsel in the penalty phase by requesting counsel not to present some available evidence in mitigation. Although this argument was not raised in either of the previous personal restraint petitions, petitioner relied on the same facts in his second petition to support a claim that his attorneys represented him ineffectively by acceding to his wish not to present evidence in mitigation. See Jeffries III, at 331-35 (rejecting that argument). Since the related theory of an invalid waiver of counsel was available when the prior petition was filed, petitioner's attempt to create a "new" ground for relief by reframing a previously rejected claim constitutes an abuse of the writ.[10]
"29. Adamson procedural bar." Brief of Petitioner, at 282. Petitioner's final "new" claim is premised on an amicus curiae brief the State of Washington and other western states filed in support of Arizona's petition for certiorari in *496 Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988). Amici apparently expressed concern that, if the Ninth Circuit's decision invalidating Arizona's death penalty statute is upheld, other statutes, including Washington's, would be vulnerable to similar attacks. Petitioner contends that the State is now procedurally barred from arguing in support of Washington's death penalty statute. Since this claim is based on circumstances which arose after petitioner's first two petitions were dismissed, it could not have been raised in those proceedings.
The claim is also frivolous. The asserted procedural bar can have no effect unless it is tied to petitioner's own renewed challenges to Washington's death penalty statute; there is no reason for the State to argue the validity of the statute unless it is challenged.[11] We rejected several challenges to the statute in one or more of petitioner's prior proceedings, and he has not shown "good cause" to reconsider those issues. RAP 16.4(d). To the extent he is now relying on Adamson as cause to reconsider those arguments, his reliance is misplaced. The Ninth Circuit acknowledged that the pertinent portions of the invalid Arizona statute are different from Washington's statute, which it had previously upheld. Adamson v. Ricketts, supra at 1043 n. 51 (distinguishing Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.1987).
CONCLUSION
With respect to all but one of petitioner's renewed claims,[12] we dismiss the petition for a failure to show good cause as required by RAP 16.4(d). Five additional issues[13]*497 are dismissed as an abuse of the writ. As to the proportionality issue,[14] the petition is dismissed on the merits. The "Adamson bar" issue[15] presents no additional substantive claim and does not constitute good cause to renew any other claims.
APPENDIX
Using petitioner's numbering, these are the claims he raises in the present proceeding. The issues he characterizes as new are designated with asterisks.
(1) "Failure to change venue/juror misconduct." Brief of Petitioner, at 3. Rejected in Jeffries I, at 409-10, Jeffries II, and Jeffries III, at 346 & n. 6.
(2) "Insufficient evidence: aggravating circumstance." Brief of Petitioner, at 26. Rejected in Jeffries I, at 407-08, and Jeffries III, at 345.
(3) "Failure to define aggravating circumstances." Brief of Petitioner, at 63. Rejected in Jeffries I, at 418-20, and Jeffries III, at 345.
(4) "Failure to require unanimous verdict, guilt phase." Brief of Petitioner, at 78. Rejected in Jeffries III, at 336-40.
[*](5) "Newly discovered evidence." Brief of Petitioner, at 88. Not previously raised in an appellate court.
[*](6) "Prejudicial testimony: petitioner in jail." Brief of Petitioner, at 96. Not previously raised in an appellate court.
(7) "Weapons unrelated to charged offense." Brief of Petitioner, at 99. Rejected in Jeffries I, at 412-13.
(8) "Failure to prosecute by indictment." Brief of Petitioner, at 106. Rejected in Jeffries I, at 423-24.
[*](9) "Mitigating circumstances (plural)." Brief of Petitioner, at 107. Not raised in this manner previously.
[*](10) "Having in mind the crime." Brief of Petitioner, at 121. Not raised in this manner previously.
(11) "Jury inappropriately allowed to consider any relevant factors." Brief of Petitioner, at 126. Rejected a very similar argument in Jeffries I, at 422.
(12) "Failure to require jury to articulate mitigating circumstances; jury's determination not rationally reviewable." Brief of Petitioner, at 135. Rejected in Jeffries I, at 426-27.
*498 (13) "Proportionality review: A. No methodology for conducting review; B. Sentence disproportionate." Found sentence proportionate in Jeffries I, at 430.
[*](14) "Waiver of right to counsel." Brief of Petitioner, at 161. Not previously raised.
(15) "Ineffective assistance of counsel." Brief of Petitioner, at 170. Rejected in Jeffries III, at 331-35.
(16) "Prosecutorial misconduct during penalty phase closing argument, comments on: failure to testify, appeals, system gives due process, opinion of guilt, eye for an eye." Brief of Petitioner, at 202. Rejected in part in Jeffries I, at 415-17, and in remaining part in Jeffries III, at 340.
(17) "Prosecution allowed to seek different punishment for same crime." Brief of Petitioner, at 224 (erroneously listed as a second issue 16). Rejected in Jeffries I, at 428.
(18) "Prosecutor's discretion to seek death not guided." Brief of Petitioner, at 237. Raised in Jeffries I, as part of prosecutorial discretion argument rejected at page 428 (see Brief of Appellant, cause 50062-2, at 183-93).
(19) "Unequal administration of the law." Brief of Petitioner, at 250. Same as issues 17 and 18.
(20) "Jury not asked if death appropriate sentence." Brief of Petitioner, at 253. Indistinguishable from claim, rejected in Jeffries I, at 425, that statute creates invalid mandatory death penalty. See issue 22 below.
(21) "Failure to require unanimous verdict, penalty phase." Brief of Petitioner, at 260. Rejected in Jeffries I, at 421.
(22) "Death penalty mandatory where no mitigating circumstances." Brief of Petitioner, at 264. Rejected in Jeffries I, at 425.
(23) "Burden of proof placed on petitioner in penalty phase." Brief of Petitioner, at 264. Rejected in Jeffries I, at 426.
(24) "Failure to instruct regarding petitioner not testifying." Brief of Petitioner, at 265. Rejected in Jeffries I, at 423.
(25) "Jury not instructed that it could consider sympathy." Brief of Petitioner, at 267. Rejected in Jeffries I, at 423.
(26) "Failure to instruct jury not to consider vengeance." Brief of Petitioner, at 271. Rejected in Jeffries I, at 423.
(27) "Failure to instruct on presumption of mitigating circumstances." Brief of Petitioner, at 279. Rejected in Jeffries I, at 422.
(28) "Report of trial judge." Brief of Petitioner, at 279. Rejected in Jeffries I, at 427-28.
[*](29) "Adamson procedural bar." Brief of Petitioner, at 282. Not previously raised.
CALLOW, C.J., and ANDERSEN, DURHAM, and SMITH, JJ., concur.
*499 BRACHTENBACH, J. (concurring in part; dissenting in part)
I concur in the majority opinion except with regards to the definition of the "abuse of the writ" concept adopted by the majority. I disagree with the rule adopted by the majority, at page 492, which creates a per se rule that the advancing of new issues in successive petitions constitutes an abuse of the personal restraint process.
The majority holds:
that, if the petitioner was represented by counsel throughout postconviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was "available but not relied upon in a prior petition". Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986).
Majority, at 492. The majority's definition of the abusive writ category supports its dismissal of five "new" issues raised by petitioner. Majority at 492-95.
The majority incorrectly and unnecessarily expands the concept of "abuse of the writ," and does so by relying on unclear and nonbinding[16] federal case law. The federal cases relied upon by the majority do not define "abuse of process" as expansively as does the majority. Nor have the federal courts clearly or consistently explained the abusive writ concept, making reliance on the federal approach premature.
To support its adoption of a "per se" rule, the majority cites Kuhlmann v. Wilson, 477 U.S. 436, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986), but fails to note that the section of the opinion upon which it relies was concurred in by only four Supreme Court Justices. The Eleventh Circuit recently noted that the Kuhlmann plurality was not binding and did not control preexisting law. Martin v. Dugger, 891 F.2d 807, 809 (11th Cir.1989). Explaining generally the effect of plurality opinions, the Supreme Court has said "[w]hen a *500 fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....'" Marks v. United States, 430 U.S. 188, 193, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977).
Closer examination of federal cases further exposes the majority's error. The federal courts distinguish between "successive" applications for postconviction relief, which are dismissed because they are based on grounds previously heard and determined,[17] and petitions raising new issues or issues not previously decided on their merits, which may be dismissed only upon a showing that the applicant for relief is abusing the writ. Sanders v. United States, 373 U.S. 1, 12, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963).
In Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir.1989), the Ninth Circuit, relying on Sanders to explain dismissal of a petition on the ground that it abused the writ, said:
A federal court need not consider habeas claims previously unlitigated in federal court if it determines that the petitioner (1) made a conscious decision deliberately to withhold them from a prior petition, (2) is pursuing needless piecemeal litigation, or (3) has raised the claims only to vex, harass, or delay.... Where there is no affirmative indication in the record that the petitioner made a conscious decision deliberately to withhold his claim, proceed by piecemeal litigation, to vex or harass or annoy the court or the state, a second petition raising a new claim is not an abuse of the writ.
(Citations omitted.) Hamilton, at 1473.
Sanders made clear an applicant's conduct may disentitle him to the relief he seeks because dismissal of a writ as abusive is based upon equitable principles. Sanders, at 17. Thus, an applicant's deliberate withholding of grounds when he files his first application for relief and his deliberate abandonment of a ground at an earlier hearing are examples of conduct disentitling an applicant to relief. *501 Sanders, at 18. This is because "[n]othing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders, at 18.
Unfortunately, a majority of the Supreme Court Justices have not agreed as to any further clarification of the abusive writ concept recognized in Sanders. On several occasions some of the Justices have inferred that dismissal on the basis of abuse of the writ does not require any showing of deliberate misconduct. See, e.g., Woodard v. Hutchins, 464 U.S. 377, 379 n. 3, 78 L. Ed. 2d 541, 104 S. Ct. 752 (1984) (Powell, J., concurring) (despite the fact that there was no affirmative evidence in the record showing deliberate withholding, when a petitioner did not offer any explanation for having failed to raise new claims in a prior petition and he had counsel throughout his case, the petition constituted an abuse of the writ). But see Rose v. Lundy, 455 U.S. 509, 521, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) (Powell, J., plurality) (Federal Habeas Corpus Rule 9(b)'s "abuse of the writ" standard supported dismissal of a second writ raising new issues when "a prisoner ... decides to proceed [in his first habeas corpus writ] only with his exhausted claims and deliberately sets aside his unexhausted claims").
Most recently, "abuse of the writ" was referenced, again by a plurality, in a footnote of Kuhlmann v. Wilson, 477 U.S. 436, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). There, Justice Powell, citing Sanders, said, "where a prisoner files a petition raising grounds that were available but not relied upon in a prior petition, ... the federal court may dismiss the subsequent petition on the ground that the prisoner has abused the writ." Kuhlmann v. Wilson, supra at 444 n. 6.
Other Justices maintain that continued adherence to Sanders requires a showing of deliberate misconduct for a petition to be dismissed as abusive. For example, in Rose v. Lundy, supra, after reviewing the legislative history of the *502 rule and focusing on Sanders, Justice Brennan, joined by Justice Marshall, said:
... Sanders made it crystal clear that dismissal for "abuse of the writ" is only appropriate when a prisoner was free to include all of his claims in his first petition, but knowingly and deliberately chose not to do so in order to get more than "one bite at the apple." The plurality's interpretation obviously would allow dismissal in a much broader class of cases than Sanders permits.
Rose, at 536 (Brennan, J., concurring in part, dissenting in part). Likewise, in Woodard v. Hutchins, supra at 383, Justices White and Stevens rejected any rule that would make a second habeas corpus petition a "per se" abuse of the writ.
Here, the majority concludes that the petitioner abuses the personal restraint process merely because he relies on issues that were available, but not raised, earlier. As noted this characterization of the concept of abuse of process is, at most, supported only by a plurality of the Justices of the United States Supreme Court. A reading of the Kuhlmann plurality as standing for the proposition that raising a new issue in a subsequent petition automatically abuses the writ is certainly not the narrowest reading of the Court's holding, and, as the Court has not overruled Sanders, it is more appropriate to follow the Sanders explanation of the abusive writ and require a showing of deliberate misconduct before determining that a petitioner is abusing the writ.
The ABA Standards Relating to Post-Conviction Remedies also support this approach. The Standards demand, at the very least, some evidence of deliberate misconduct before a petition is dismissed as an abuse of process.
The Advisory Committee recommends generally that no such claim should be denied for failure to present it at a prior time unless the withholding of the claim is so serious as to amount to abuse of process by the applicant.... Deliberate and wilful trifling with the courts by inexcusable fragmentation of litigation need not be tolerated. In finding any claim unmeritorious on the ground of abuse of process, a court should be confident that the previous omission was intentional and inexcusable.
*503 ABA Standards Relating to Post-Conviction Remedies, Std. 2.1, Commentary at 35-36 (Approved Draft, 1968).
Denial of relief to applicants on the basis of abuse of the remedy ought to be cautiously adjudicated. The recommended limitation is an affirmative defense, to be pleaded and proved by the state. Since the doctrine is equitable in nature, the courts ought to have discretion to determine, once the facts have been fully developed, whether the gravity of any abuse established is sufficient to justify deprivation of a remedy.
ABA Standards Relating to Post-Conviction Remedies, Std. 2.4, Commentary at 48 (Approved Draft, 1968).
Recently enacted RCW 10.73.140 provides a standard for consideration of subsequent personal restraint petitions. The statute requires a petitioner who files a subsequent petition raising a new issue to demonstrate good cause why the grounds were not raised previously. While not applicable here,[18] the Legislature has directed inquiry into the reason why a petitioner failed to raise an issue previously. Thus, the Legislature did not intend to bar subsequent petitions by way of an automatic per se rule such as the one adopted by the majority.
Missing from the majority's definition of an abuse of the postconviction process is any reference to deliberate or willful misconduct on the part of petitioner. The majority has eliminated any inquiry into the reason why petitioner did not earlier advance his five "new" issues. This completely disregards the underlying justification, recognized in Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963), Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir.1989), the ABA Standards, and recent Washington legislation, for dismissing the application for relief on the grounds of abuse of process, i.e., the principle that misconduct on the part of a petitioner disentitles him to equitable relief.
I would hold that when determining whether a personal restraint petition is an abusive petition, inquiry must be made as to the reasons why an issue was not raised earlier, *504 and dismissal requires a showing that the petitioner deliberately or intentionally proceeded by piecemeal litigation for the purpose of vexing, harassing, or annoying the court or the state.
UTTER and DOLLIVER, JJ., concur in that portion of Justice Brachtenbach's opinion which discusses the "abuse of writ" concept. UTTER, J. (concurring in part, dissenting in part)
I agree with the majority's interpretation of the universe of similar cases to be utilized in proportionality review under RCW 10.95.130(2)(b). Nevertheless, I disagree with the majority's conclusion that Jeffries' death sentence is proportionate to the punishment imposed in similar cases considering both the crime and the defendant. Accordingly, I dissent.
The majority recognizes that we must follow the terms of the statute. The statute defines similar cases as:
cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the supreme court under RCW 10.95.120....
RCW 10.95.130(2)(b). RCW 10.95.120 requires the trial judge to file a report with the Supreme Court for every aggravated murder conviction. Thus, the universe of similar cases to be examined includes cases in which the death penalty was considered as well as cases in which the death penalty was not sought by the State.
In State v. Jeffries, 105 Wash. 2d 398, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986) (Jeffries I), the majority concluded that similar cases did not include cases where the death penalty was not sought by the prosecutor. Thus, the proportionality review was based on only four cases in which the death penalty was imposed.
*505 In State v. Harris, 106 Wash. 2d 784, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987), the court, in doing proportionality review, noted three similar cases in which the death penalty had not been sought. In State v. Rupe, 108 Wash. 2d 734, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988), the court explicitly stated that similar cases include cases where the prosecutor had not sought the death penalty.
Accordingly, Jeffries is before this court again for a new proportionality review. However, the majority still fails in its comparison of this case to similar cases.
The majority's comparison is faulty because it relies on State v. Rupe, supra, and State v. Rice, 110 Wash. 2d 577, 757 P.2d 889 (1988), cert. denied, 109 S. Ct. 3200 (1989). These two cases relied on Jeffries I to demonstrate that the death sentences imposed were not disproportionate. Since the proportionality review of Jeffries I is invalid because the universe of similar cases was incorrectly defined, the proportionality reviews in Rupe and Rice are called into doubt. The majority relies on cases that in turn relied on an invalid analysis, which analysis this present case is supposed to correct. The majority engages in circular argument by doing so. It is illogical to use Jeffries to prove the validity of Rice and Rupe and then use Rice and Rupe to prove the validity of Jeffries. This makes Jeffries self-justifying.
Moreover, it is difficult to see how Rice is similar in any respect to Jeffries for purposes of proportionality review. In Rice, the defendant stabbed and bludgeoned a family of four, including two children, and the jury found three aggravating circumstances as to each count of aggravated first degree murder. Although two of the aggravating circumstances found in Rice are the same as found in Jeffries, the court must take into consideration the defendant and the nature of the crime as well as the aggravating factors. The majority finds Rice similar on the basis of aggravating factors alone. Majority, at 491.
*506 The majority again fails to consider the entire universe of similar cases. The majority mentions only Rupe and Rice as similar cases, and ignores all but one of the cases I outlined in my dissent in Jeffries I. Of the nine double-murder cases I described in that dissent, in seven, the death penalty was not sought, and in the other two, the jury found sufficient mitigating factors to merit leniency. See State v. Guloy, 104 Wash. 2d 412, 705 P.2d 1182 (1985) (execution slaying of two union reformers death penalty not sought), cert. denied, 475 U.S. 1020 (1986); State v. Kincaid, 103 Wash. 2d 304, 692 P.2d 823 (1985) (husband killed wife and sister-in-law after marital breakup death penalty not sought); State v. Dictado, 102 Wash. 2d 277, 687 P.2d 172 (1984) (execution slaying of two union reformers death penalty not sought); State v. Carothers, 84 Wash. 2d 256, 525 P.2d 731 (1974) (retired husband and wife shot unanimous jury declined to impose death penalty); State v. Carey, 42 Wash. App. 840, 714 P.2d 708 (1986) (defendant convicted of arson murder of wife and son death penalty not sought); State v. Martin, 41 Wash. App. 133, 703 P.2d 309 (defendant killed fiance's parents after she called off marriage jury declined to impose death penalty), review denied, 104 Wash. 2d 1016 (1985); State v. Harris, King County cause XX-X-XXXXX-X (sentenced Aug. 25, 1986) (defendant killed fiance and a nurse, and attempted murder of two others death penalty not sought); State v. Defrates, Mason County cause XX-X-XXXXX-X (sentenced Mar. 6, 1985) (defendant pleaded guilty to murder of sister-in-law and her brother death penalty not sought); State v. Brown, King County cause XX-X-XXXXX-X (sentenced Apr. 13, 1983) (defendant killed common law wife and her uncle death penalty not sought). The majority examines only State v. Kincaid, supra, and finds it not similar.
Since Jeffries I was decided, trial courts have filed with the Supreme Court seven reports of convictions by a jury of aggravated first degree murder where there were two victims. In four, the State did not seek the death penalty; in three, the jury could not agree on the death penalty. All *507 seven defendants received life without the possibility of parole. See State v. Rice (Herbert), Yakima County cause XX-X-XXXXX-X (sentenced Jan. 5, 1990); State v. Sullens, Okanogan County cause XX-X-XXXXX-X (sentenced Sept. 15, 1989); State v. Hutchinson, Island County cause XX-X-XXXXX-X (sentenced July 17, 1989); State v. Baja, King County cause XX-X-XXXXX-X (sentenced Feb. 7, 1989); State v. Thompson, Grays Harbor County cause XX-X-XXXXX-X (sentenced Oct. 3, 1988); State v. Petersen, Pierce County cause XX-X-XXXXX-X (sentenced June 17, 1986); State v. Strandy, Clark County cause XX-X-XXXXX-X (sentenced Oct. 4, 1985), aff'd, 49 Wash. App. 537, 745 P.2d 43 (1987).
Although these cases may or may not be in the appropriate universe of similar cases because of other factors, it is incumbent upon the court to review them to reach that initial determination of what universe is to be considered. This the majority fails to do.
The majority declines to look at what it calls "similar new murder cases." Majority, at 491. If by new murder cases, the majority means cases that were decided after Jeffries I, then Rice is also a new case that the majority should not consider. Rice's conviction and proportionality review occurred after Jeffries' conviction and first proportionality review. Although Rupe was convicted before Jeffries, his proportionality review occurred after Jeffries I. Thus, for purposes of proportionality review, Rupe is also a new case compared to Jeffries. Moreover, the statute does not differentiate between old and new murder cases. The statute requires the court to look at all cases reported since 1965 and all cases in which reports have been filed under RCW 10.95.120. RCW 10.95.130(2)(b). Presumably, this means all cases up to the point at which the proportionality review takes place. Thus, this court must look at all available cases, not just the ones that allow the court to reach the result it wants. The majority's comment that it need not go beyond Rupe and the cases used there to define the appropriate universe of similar cases is an abdication of the statutory duty.
*508 For the reasons stated in my dissent in Jeffries I, the imposition of the death penalty in Jeffries' case is disproportionate to other multiple victim aggravated murder convictions.
The majority indulges in an examination of questionable similar cases that fails to take into account the appropriate universe of similar cases, or to create a principled methodology for conducting proportionality review. Therefore, I concur only with the majority's enunciation of the definition of the term "similar cases". I dissent from the majority's application of that definition to this case.
NOTES
[1] State v. Jeffries, 105 Wash. 2d 398, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986) (Jeffries I).
[2] In re Jeffries, 110 Wash. 2d 326, 752 P.2d 1338, cert. denied, 109 S. Ct. 379 (1988) (Jeffries III).
[3] In re Jeffries, cause 53397-1 (Jeffries II).
[4] The list of issues petitioner sets forth in the introduction to his opening brief as new, revised, or supported by new authority does not correspond exactly with the manner in which he presents the issues in the argument portion of the brief. We have examined all of petitioner's issues in order to determine whether they were raised in any of the prior proceedings. See appendix.
[5] While proportionality review is required by RCW 10.95.130, it is not required by the Eighth Amendment. Pulley v. Harris, 465 U.S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984).
[6] This does not mean that any refinement in our analytical approach to a legal issue will justify reconsideration of a previously rejected claim. Whether the ends of justice would be served by reconsideration will depend upon the nature of the issue raised, the extent to which the refinement constitutes a change in the law, and the seriousness of the consequences of error.
[7] This rule applies only to successive personal restraint petitions. A constitutional issue that was available but not relied upon on appeal may be raised in the first personal restraint petition. In re Hews, 99 Wash. 2d 80, 660 P.2d 263 (1983).
[8] Petitioner suggests that Johnson v. Mississippi, 486 U.S. 578, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988) justifies his decision to raise this issue now and to renew a claim of juror misconduct involving the alleged discovery of his prior robbery conviction. We cannot agree. The defendant's prior conviction in Johnson was admitted at trial, with the attendant approval of the trial court, and was used as one of the statutory aggravating factors to support the death penalty. When the defendant thereafter prevailed in a postconviction proceeding challenging the prior conviction, the Supreme Court held that the death sentence must also be vacated. Here petitioner has not proven any constitutional infirmity in his prior conviction. Nor was the conviction admitted at trial to prove any statutory or nonstatutory aggravating factors.
[9] Additionally, to the extent petitioner is simply revising his previously rejected challenges to the interrogatory, he is not raising a new ground for relief within the meaning of RAP 16.4(d).
[10] Moreover, this court's holding that petitioner was adequately represented by counsel necessarily defeats the contention that he waived either his right to counsel or his right to effective assistance.
[11] Since admissions on legal points are not binding on this court, e.g., Folsom v. Spokane Cy., 111 Wash. 2d 256, 261-62, 759 P.2d 1196 (1988), the State's amicus brief creates no procedural bar in any event.
[12] Issues numbered 1 through 4, 7, 8, 11, 12, and 15 through 28 in petitioner's brief. See appendix.
[13] Issues numbered 5, 6, 9, 10, and 14 in petitioner's brief. See appendix.
[14] Petitioner's issue number 13.
[15] Petitioner's issue number 29.
[16] Although reliance on interpretations of similar federal postconviction relief rules is appropriate in certain instances, e.g., In re Haverty, 101 Wash. 2d 498, 503, 681 P.2d 835 (1984), those federal principles are certainly not binding on this court. See In re Mercer, 108 Wash. 2d 714, 719, 741 P.2d 559 (1987).
[17] RAP 16.4(d) regulates petitions raising grounds previously heard and determined. See In re Haverty, 101 Wn.2d at 501-03.
[18] This legislation was not effective when petitioner filed this petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345851/ | 330 S.E.2d 622 (1985)
RALEIGH-DURHAM AIRPORT AUTHORITY
v.
David William KING and wife, Emma J. King; Carolina Power & Light Company; Robert D. Holleman, Trustee; First Federal Savings and Loan Association of Durham, NC.; the Prop and Rudder, Inc.; and County of Wake.
No. 8410SC851.
Court of Appeals of North Carolina.
June 4, 1985.
*623 Nye, Mitchell & Jarvis by Charles B. Nye and Jerry L. Jarvis, Durham, for plaintiff appellant.
Thorp, Fuller & Slifkin by William L. Thorp and Anne R. Slifkin, Raleigh, for defendant-appellees.
COZORT, Judge.
In this condemnation action, the plaintiff deposited the sum of $116,550.00 as estimated just compensation for the appropriation of the defendants' property for airport expansion. The case was tried on the issue of just compensation and the jury returned a verdict in the amount of $260,000.00 for the defendants. The plaintiff appeals, seeking a new trial on this issue. Our review of the record and plaintiff's contentions reveal no commission of prejudicial error at trial. The facts follow.
The property at issue is a two-acre tract with 295.5 feet fronting the west side of State Road 1002 or Airport Road. Improvements included the defendants' home, a restaurant and country store combination with three gas pumps, and several small outbuildings. The defendants, David and Emma King, ran the grocery store/gas station and restaurant themselves until 1977. From that time until their land was taken by the Airport Authority, the Kings leased their commercial facility. During its last years of operation, the business grossed $325,000.00 to $350,000.00 per year.
At trial, the defendants presented three expert witnesses who testified to the property's fair market value. The experts' opinions differed with regard to the property's highest and best use, and their opinions as to the property's fair market value including improvements were: $281,000.00, $260,900.00, and $294,835.00.
The plaintiff's two witnesses placed the value of the property at $133,800.00 and $134,900.00.
On appeal, the plaintiff argues that the trial court committed prejudicial error by allowing certain evidence offered by the defendants to establish the fair market value of their property.
The plaintiff's first assignment of error specifically objects to the trial court's admission into evidence expert testimony that market values in the project area had been chilled as a result of the proposed airport expansion. We hold the trial judge did not commit prejudicial error by allowing the testimony.
The defendants called three expert witnesses. Each witness was asked to describe the general growth and development *624 of the area within the past ten to twenty years. The plaintiff at trial objected to expert witness Wallace Kaufman's testimony that "long-standing announcements" by the airport of its plans to expand had dampened the growth of the township containing the airport, differing from the high growth experienced by the surrounding townships in the Research Triangle Park. The plaintiff also objected to the question put to the third testifying expert, Jean Hunt, which asked how long the "cloud of condemnation" had affected the growth and development of this general area.
We overrule the plaintiff's assignment of error on two grounds. In the first place, it was perfectly relevant to allow the defendants' expert witnesses to describe the growth and market movement in the general area surrounding the condemned property. Their testimony was, in effect, that the proposed condemnation had chilled the growth in the area, not that the proposed condemnation had directly chilled market values.
However, we further note that the plaintiff's objections were untimely. We hold that the plaintiff has waived the benefit of its objections by failing to object during the first expert's testimony of the same import. The plaintiff's objections were first lodged during the testimony of Wallace Kaufman and later during the testimony of Jean Hunt. However, Thomas Anderson, the first defense expert to testify, described, without objection from the plaintiff, the general growth of the area surrounding the defendants' property during the last twenty years. In explaining why he believed there had been a decrease in the population of the area around the airport in comparison to the increase in the other areas surrounding it, Mr. Anderson opined:
[T]he decrease in this area was caused by the expansion plans announced by the airport, had a chilling effect on the market and that investors were uncertain as to what would be happening in this corridor, and built just on the perimeter and stayed out of the way of the possible condemnation by the airport.
The plaintiff did not object to Anderson's reference to the "chilling effect" the airport's proposed condemnation had had on the area's growth and in turn on the area's property values. "The admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character." Moore v. Reynolds, 63 N.C.App. 160, 162, 303 S.E.2d 839, 840 (1983). The plaintiff's failure to object to the first admission of "chilling effect" evidence and its failure to show prejudice by the admission of the later objected-to testimony leads us to the conclusion that this assignment of error is without merit, and it is, therefore, overruled.
Within this same assignment of error, the plaintiff further argues that the trial court erred in allowing Wallace Kaufman to testify to the value the defendants' property would have had at the time of its taking if it had not been subjected to the threat of condemnation. In other words, according to the plaintiff, Kaufman was improperly permitted to testify to the highest and best use of the condemned property based on "an open market" as if the property had not been under the "cloud of condemnation." We again fail to see how the admission of this evidence was prejudicial error.
G.S. 40A-65(a) states that the value of the property taken shall not reflect any increase or decrease in value before the date of valuation that is caused by
(i) the proposed improvement or project for which the property is taken; (ii) the reasonable likelihood that the property would be acquired for that improvement or project; or (iii) the condemnation proceeding in which the property is taken.
Under G.S. 40A-65(c), however, a decrease in the property's value before the date of valuation which is caused by physical deterioration of the property within the reasonable control of the property owner and by his unjustified neglect may be considered in determining the condemned property's value.
*625 In the present case, the "cloud" over the area of the defendants' property formed in the first place because of the airport's announcements of its plans to expand. Airport Director John Brantley testified that for twenty to twenty-two years the airport has been involved in an expansion project. He stated that because the 1968 bond referendum received a lot of publicity "landowners in the area have certainly known that the airport was contemplating expansion." This fact according to expert witnesses dampened the growth in the area and in turn its property values. However, G.S. 40A-65(a) prohibits the value of the property to reflect any decrease due to the "reasonable likelihood that the property would be acquired" in a condemnation proceeding. Thus, Kaufman's valuation of the defendants' property, considering its highest and best use, quite correctly did not take into account the decrease in the property's value due to the airport's long-range condemnation plans. Kaufman clearly explained: "I'm appraising the fair market value of the property without the consideration of any effect of the expansion of the airport ... discount[ing] any effect of the expansion of the airport on either decreasing or increasing the value of the property."
Since a property-owner cannot capitalize under the statute on any increase in the property's value due to the reasonable likelihood that it will be acquired, the condemnor likewise cannot take advantage of any resulting decrease in the property due to the threat of condemnation. Kaufman's testimony to the property's highest and best use as if it had not been under a cloud of condemnation was proper. We hold the trial court did not err in the admission of this evidence.
The plaintiff next argues that the trial court improperly admitted evidence of rent charged and income derived by the Airport Authority from non-comparable property. During the trial the defendants sought to elicit detailed information relating to rental income derived by the Airport Authority from airport service and commercial tenants through the testimony of expert witness, Wallace Kaufman, who had reviewed the deposition of Airport Director John Brantley which contained the desired financial data. Upon the plaintiff's objection, the trial court considered the proffered testimony in the absence of the jury. After conducting a preliminary inquiry as to the purpose for which the evidence was being offered and after ascertaining that the evidence was not offered as a type of comparable but for the stated purpose of demonstrating the comparative cost and availability of property in the general vicinity, the trial court overruled the plaintiff's objection and stated:
Well, I am not at this point receiving it into evidence as comparable.... I am receiving it into evidence solely for the purpose of showing the availability and/or cost of locations within the airport for the purpose of determining whether property outside the airport would be attractive for commercial purposes because of either the lack of space available in the airport for similar types of businesses or the relative cost within the airport of similar types of businesses.
The plaintiff argues that evidence of rental rates charged and income derived by the airport from non-comparable property both inside and outside the terminal buildings was inadmissible for any purpose. We disagree. Kaufman did not rely on these rents as "comparable sales." The plaintiff in its brief admits that there was "no contention or showing by the defendants that such properties were comparable."
Moreover, Kaufman did not base his opinion of the fair market value of the defendants' property primarily on this rental information. According to Kaufman, the airport was the "principle market maker" in the area, affecting property values and commercial viability of land in the vicinity of the airport. Airport rentals of space inside the terminal, because of the desirable location, established the maximum rent that could be charged in the area. Also, the availability of that space directly *626 affected the amount of rent that could be charged outside the terminal. Thus, Kaufman's use of airport rentals allowed him to appraise the defendants' property within the context of the commercial and economic realities of the area. We hold that the trial court did not commit prejudicial error in admitting evidence concerning the airport's rental income on the basis that it was a proper means for the expert witness to determine a fair market value of the condemned property. We also agree with the defendants that the argument in plaintiff's brief does not deal with the capitalization of these rentals and therefore this portion of their assignment of error should be abandoned under Rule 28 of our Rules of Appellate Procedure.
Finally, the plaintiff claims that the trial court committed reversible error in admitting expert opinion of the fair market value of the defendants' property based upon capitalization of hypothetical income from hypothetical improvements to the property. The plaintiff's objection was lodged during the following portion of Kaufman's testimony.
Q. You mentioned using the income from property to determine the value of the property itself. What rental would be required to capitalize the King property to the value that the fair market value you've placed on it?
A. Well, on the whole property?
Q. Yeah.
A. Well, it depends at what rate you're capitalizing, but if I'm using 10 percent rate, we're talking about twenty eight thousand dollars a year total rental to the owner of the land.
Q. That would be forall of the businesses on the two acres of land?
A. That would be for the whole piece of land, yes.
Q. And do you have an opinion satisfactory to yourself as to whether or not that is a realistic rental according to the highest and best use of the Kings' property if properly developed?
MR. JARVIS: Objection.
COURT: Overruled.
A. Yes. I think that would be a realistic rental for that kind of commercial property.
Initially, we note that plaintiff's objection comes too late. In any event, however, Kaufman testified that a rental value of $28,000.00 per year was a realistic rental value for the defendants' property with regard to its highest and best use. The concept of "highest and best use" requires an expert to determine what the subject property's fair market value would "realistically" be if the owner were "hypothetically" allowed to adapt his property to its most advantageous and valuable use. 27 Am.Jur.2d, Eminent Domain, Sec. 280 (1966). See also State v. Johnson, 282 N.C. 1, 191 S.E.2d 641 (1972), affirmed per curiam, 286 N.C. 331, 210 S.E.2d 260 (1974). Therefore, we hold it was not error for the trial court to allow Kaufman in explaining his opinion on how he arrived at his figure for the fair market value of the defendants' property to "suppose" what a realistic rental value of the property might be "if properly developed."
Furthermore, Kaufman stated that his opinion as to the fair market value of the condemned property was based upon actual improvements, market demand for commercial retail space in the area, and specific comparable sales. He further testified that in his opinion the fair market value of the property was $281,000.00. The plaintiff again did not object. Without expressing an opinion as to whether the capitalization of hypothetical income is a proper method of valuation, we hold that in the context of this case Kaufman's expert testimony was properly received.
For the foregoing reasons, we hold that the trial court committed no prejudicial error.
No error.
ARNOLD and PHILLIPS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345900/ | 330 S.E.2d 63 (1985)
Elizabeth Fox MAUSER
v.
Harold Glenn MAUSER.
No. 8425DC785.
Court of Appeals of North Carolina.
June 4, 1985.
*64 Sherwood J. Carter, Hickory, for plaintiff-appellant.
Rudisill & Brackett, P.A. by J. Steven Brackett, Hickory, for defendant-appellee.
BECTON, Judge.
I
This appeal concerns an equal equitable distribution of marital property. On 6 July 1983, plaintiff wife filed her Complaint seeking a divorce based on a year's separation, and an equitable distribution of the marital property. Defendant husband filed an Answer and Counterclaim, likewise seeking a divorce and an equitable distribution. The case was tried without a jury.
At trial, the court sustained numerous objections to a line of questioning by the wife's counsel to defendant husband concerning the disposition of some shares of stock he owned at the time the parties separated on 12 June 1982. The husband testified that at the time the parties separated, he owned 27,300 shares of stock, 25,000 of which were in Conover Plastics, Inc., a closely-held corporation in which the husband's father-in-law was the majority shareholder; the remaining 2,300 shares were held in various other corporations. The husband testified that before either party became eligible to sue for divorce, he sold 24,000 shares of stock in Conover Plastics, Inc. to his mother, taking as consideration her promissory note, on which payment was deferred for a year. He testified that although he sold the Conover Plastics stock to his mother for $1.00 per share, he estimated that as of the date of the parties' separation, the value of the remaining 1,000 shares of Conover Plastics stock was $5.00 per share. He also testified that he sold the balance of the 27,300 shares of assorted stock, and used the proceeds of over $21,000 to furnish the bulk of the approximately $24,000 purchase price of 2,000 shares of Detroit-Edison stock.
In its order, the trial court granted the parties an absolute divorce, and made an equal division of the marital property. The trial court listed, inter alia, the 1,000 shares of Conover Plastics, Inc. stock as marital property, and ordered the husband to transfer an ownership interest in 500 shares to his wife. The judgment does not *65 refer to the promissory note or the Detroit-Edison stock.
The wife appeals, presenting a single issue for our review, namely, whether the trial court's failure to consider evidence that her husband converted marital property during their separation but before the filing of the Complaint constituted reversible error. For the reasons stated below, we find error, and reverse.
II
This case is governed by North Carolina's Equitable Distribution Act (the Act). N.C.Gen.Stat. Secs. 50-20 and -21 (1984). The threshold requirement of the Act is identifying "marital property," which is done by classifying property as either marital or separate, in accordance with the statutory definitions. McLeod v. McLeod, 74 N.C.App. 144, 327 S.E.2d 910 (1985); Alexander v. Alexander, 68 N.C.App. 548, 315 S.E.2d 772 (1984).
In the instant case, the trial court refused to consider evidence relating to the sale of certain stock which was apparently acquired during the marriage and, at the time the parties separated, was titled in the husband's name alone. This refusal was presumably based upon the theory that since the original stock was converted after the date on which the parties separated, neither the promissory note nor the newlyacquired stock could fit the statutory definition of marital property, which speaks of property acquired "during the course of the marriage and before the date of the separation of the parties, and presently owned...." G.S. Sec. 50-20(b)(1) (1984). Put otherwise, the trial court seemed to reason that regardless of whether, before the sale, the stock constituted marital property, once the stock was converted, any property thereby obtained became the husband's sole and separate property, and any evidence relating to the conversion was irrelevant and hence inadmissible.
The trial court's evidentiary rulings were wrong and were apparently based on a faulty premise. Whether the promissory note and Detroit-Edison stock were separate property depended not on whether they were acquired after the date of separation, but whether the source of funds for their purchase was marital funds. In interpreting its Equitable Distribution Act, North Carolina has adopted the source of funds rule to determine whether and to what extent an asset is part of the marital estate, a rule recognizing the "dual nature of property that has been acquired with both marital and separate assets." Wade v. Wade, 72 N.C.App. 372, 325 S.E.2d 260, 269 (1985). Accord McLeod v. McLeod.
It has been further held that even when property is converted after the date of separation, as in the instant case, the source of funds rule continues to apply, and the dispositive question in determining if an asset is a marital asset remains whether the source of funds therefor were marital funds. Phillips v. Phillips, 73 N.C.App. 68, 326 S.E.2d 57 (1985). The Phillips Court concluded there was no error in allowing the wife to testify that after the separation, her husband gave her funds to purchase a condominium:
Simply because the transaction occurred after the parties' separation does not mean that the condominium is not marital property. If the funds [husband] gave [wife] were marital funds, then their exchange for other property after separation does not convert them into separate property.
Id. at ___, 326 S.E.2d at 61.
In short, conversion of property between the date of separation and the date of divorce simply has no effect on its character as either marital or separate. A contrary result would only create an incentive for a spouse to convert marital assets titled in his or her name as soon as the parties separated, thereby undermining the very raison d'etre of the Actto alleviate the inequities caused by the title theory approach to the distribution of marital property. See White v. White, 312 N.C. 770, 324 S.E.2d 829 (1985). Accord Loeb v. Loeb, 72 N.C.App. 205, 324 S.E.2d 33 (1985) (Act's equitable purpose reflects trend toward *66 recognition of marriage as equal partnership).
We observe that the availability of injunctive relief has no bearing on our result. The current version of G.S. Sec. 50-20(i) (1984), which allows a party to seek injunctive relief "to prevent the disappearance, waste or conversion of property alleged to be marital property" before the filing of an action for divorce, was not in effect at the time the parties separated. In the version in effect at that time, injunctive relief was not available until an action for divorce had been commenced, see G.S. Sec. 50-20(i) and (k) (Supp.1981), plainly too late to protect the wife. Furthermore, even the increased availability of injunctive relief does not guarantee that a party will be successful in procuring an injunction. See Duke Power Co. v. City of High Point, 69 N.C.App. 335, 317 S.E.2d 699 (1984) (to obtain injunction, injury must be actually threatened and practically certain, not anticipated and merely probable). Nor does it protect the spouse whose partner manages to convert marital assets before injunctive relief is applied for.
Applying the foregoing to the facts at hand, we find that the trial court never considered whether the original 27,300 shares of stock were financed from the marital estate or from the separate estate of either party. A resolution of this question was essential to ensure that a complete and accurate listing of the marital property was made. See Little v. Little, 74 N.C.App. 12, 327 S.E.2d 283 (1985) (order that fails to make complete listing of marital property fatally defective).
We cannot, however, conclusively determine from the record before us whether the original stock constituted marital property, although it appears that it did. The husband testified that at least some of the original stock was purchased with his wage earnings, and there is no indication that the separate assets of either party funded any of the original purchase price. Upon remand, the trial court is to determine from the complete record whether the original 27,300 shares of stock were marital property, and if so, value and distribute them pursuant to the Act. See Loeb v. Loeb (party claiming asset is separate property must prove same by clear, cogent and convincing evidence). Should the trial court determine that the stock was funded through both marital and separate property, we direct its attention to the recently decided cases of McLeod v. McLeod and Phillips v. Phillips, both of which discuss the classification of corporate stock as part marital and part separate property.
Finally, as the evidence indicates that the husband transferred the 24,000 shares of Conover Plastic, Inc. stock to his mother for substantially less than their fair market value, we point out that when a divorce is granted on the grounds of one year's separation, marital property is to be valued as of the date of separation. G.S. Sec. 50-21(b) (1984).
III
In conclusion, we hold that the trial court erred in refusing to consider evidence concerning the husband's conversion of property after the parties' separation. The ruling was error regardless of whether the property was originally obtained with marital or separate funds. It was error if the converted shares of stock were marital property, as the stock should have been included as part of the marital estate subject to distribution. The ruling was also error if the converted stock, or any portion thereof, was separate property, as the value of a spouse's separate estate is a factor properly considered by the trial court in determining what is an equitable division of the marital estate. See G.S. Sec. 50-20(c)(1) and (12). The judgment entered is therefore reversed, and the cause remanded for entry of a new order not inconsistent with this opinion.
Reversed and remanded.
WEBB and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345907/ | 708 N.W.2d 660 (2006)
270 Neb. 998
STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE of the Nebraska Supreme Court, relator,
v.
W. Randall PARAGAS, respondent.
No. S-05-772.
Supreme Court of Nebraska.
January 27, 2006.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
PER CURIAM.
INTRODUCTION
Respondent, W. Randall Paragas, was admitted to the practice of law in the State of Nebraska on September 17, 1986, and at all times relevant hereto was engaged in *661 the private practice of law in Omaha, Nebraska. On June 22, 2005, formal charges were filed against respondent. The formal charges set forth one count that included charges that respondent violated the following provisions of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1) (violating disciplinary rule); DR 1-102(A)(5) (engaging in conduct prejudicial to administration of justice); and Canon 7, DR 7-102(A)(3) (failing to disclose that which lawyer is required to reveal), as well as his oath of office as an attorney, Neb.Rev.Stat. § 7-104 (Reissue 1997).
A referee was appointed and heard evidence. On November 28, 2005, the referee filed his report. With respect to the single count in the formal charges, the referee found that respondent's conduct had breached DR 1-102(A)(1) and (5) and DR 7-102(A)(3), as well as his oath of office as an attorney. The referee recommended that respondent be suspended from the practice of law for 60 days.
On December 13, 2005, respondent filed a conditional admission under Neb. Ct. R. of Discipline 13 (rev.2002), in which he knowingly did not challenge or contest the findings of fact and recommended sanction set forth in the referee's report and waived all proceedings against him in connection herewith in exchange for a stated form of consent judgment of discipline outlined below. Upon due consideration, the court approves the conditional admission.
FACTS
In summary, the referee found that respondent had received over $10,000 in cash from a client and had failed to report the receipt of that cash to the Internal Revenue Service, as required by I.R.C. § 6050I (2000). The referee further found that in a case in which respondent had been hired to probate an estate, respondent had failed to timely comply with a court order directing him to deposit certain sums held by his office and relating to the estate into a money market account. The referee found that respondent's conduct had violated DR 1-102(A)(1) and (5) and DR 7-102(A)(3), as well as his oath of office as an attorney. The referee recommended that respondent be suspended from the practice of law for 60 days.
In the referee's report, he noted that respondent had "fully cooperated" with the Counsel for Discipline's office and was "embarrassed by his actions, and apologetic." The referee also noted that the record from the hearing contained more than 40 letters from members of the legal profession familiar with the quality of respondent's legal work and service to the bar. According to the referee's report, "[a]ll [of these letters] indicate that respondent enjoys a good reputation in the legal community, is well prepared and zealously represents his clients."
ANALYSIS
Rule 13 provides in pertinent part:
(B) At any time after the Clerk has entered a Formal Charge against a Respondent on the docket of the Court, the Respondent may file with the Clerk a conditional admission of the Formal Charge in exchange for a stated form of consent judgment of discipline as to all or part of the Formal Charge pending against him or her as determined to be appropriate by the Counsel for Discipline or any member appointed to prosecute on behalf of the Counsel for Discipline; such conditional admission is subject to approval by the Court. The conditional admission shall include a written statement that the Respondent knowingly admits or knowingly does not challenge or contest the truth of the matter or matters conditionally admitted and waives all proceedings *662 against him or her in connection therewith. If a tendered conditional admission is not finally approved as above provided, it may not be used as evidence against the Respondent in any way.
Pursuant to rule 13, and given the conditional admission, we find that respondent knowingly does not challenge or contest the findings of the referee, which we now deem to be established facts, and we further find that respondent violated DR 1-102(A)(1) and (5) and DR 7-102(A)(3), as well as his oath of office as an attorney. Respondent has waived all additional proceedings against him in connection herewith, and upon due consideration, the court approves the conditional admission and enters the orders as indicated below.
CONCLUSION
Based on the conditional admission of respondent, the recommendation of the Counsel for Discipline, and our independent review of the record, we find by clear and convincing evidence that respondent has violated DR 1-102(A)(1) and (5) and DR 7-102(A)(3), as well as his oath of office as an attorney, and that respondent should be and hereby is suspended from the practice of law for a period of 60 days, effective 30 days after the filing of this opinion. Respondent shall comply with Neb. Ct. R. of Discipline 16 (rev.2004), and upon failure to do so, he shall be subject to punishment for contempt of this court. At the end of respondent's 60-day suspension period, respondent shall be automatically reinstated to the practice of law, provided that respondent has demonstrated his compliance with rule 16, and further provided that the Counsel for Discipline has not notified this court that respondent has violated any disciplinary rule during his suspension. Respondent is also directed to pay costs and expenses in accordance with Neb.Rev.Stat. §§ 7-114 and 7-115 (Reissue 1997) and Neb. Ct. R. of Discipline 10(P) (rev.2005) and 23(B) (rev.2001) within 60 days after an order imposing costs and expenses, if any, is entered by the court.
JUDGMENT OF SUSPENSION. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265432/ | 185 Cal.App.4th 153 (2010)
110 Cal. Rptr. 3d 180
JOSE A. VALENCIA et al., Plaintiffs and Respondents,
v.
PETER MICHAEL SMYTH et al., Defendants and Appellants.
No. B216753.
Court of Appeals of California, Second District, Division One.
June 1, 2010.
*156 Michael J. Perry for Defendants and Appellants.
Gilbert & Nguyen and Jonathan T. Nguyen for Plaintiffs and Respondents.
OPINION
MALLANO, P. J.
The California Association of Realtors publishes and periodically revises a standard form residential purchase agreement commonly used in California. The agreement contains an arbitration provision. We previously interpreted the October 2000 version of the agreement, concluding that, under the California Arbitration Act (CAA) (Code Civ. Proc., §§ 1280-1294.2), the trial court had the authority to stay or deny arbitration where (1) some of the parties to the action were not parties to the agreement, *157 and (2) proceedings in different forumsarbitral and judicialcould result in conflicting rulings on a common issue of fact or law. (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 782-783 [49 Cal.Rptr.3d 531] (Gravillis), construing Code Civ. Proc., § 1281.2, subd. (c).)
The Federal Arbitration Act (FAA) (9 U.S.C. §§ 1-16) does not permit a trial court to stay or deny arbitration in those circumstances. Rather, the FAA requires the arbitration of all claims within the scope of an arbitration provision even if the action includes nonarbitrable claims by or against third parties. (See 9 U.S.C. §§ 3, 4.)
In accordance with choice-of-law principles, the parties may limit the trial court's authority to stay or deny arbitration under the CAA by adopting the more restrictive procedural provisions of the FAA. Here, the question is whether the October 2002 version of the residential purchase agreement (Agreement), unlike the earlier version we interpreted, incorporates the FAA's procedural provisions. The Agreement states, as did its predecessor, that disputes arising out of the Agreement shall be "decided by neutral arbitration as provided by California laW," AND THE ARBITRATOR'S DECISION "SHALL BE RENDERED IN ACCORDANCE WITH SUBSTANTIVE cALIFORNIA lAW." tHE ONLY MATERIAL DIFFERENCE IS THE ADDITION OF A SINGLE SENTENCE: "iNTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY THE [faa]." (iTALICS ADDED.)
We conclude that, by adopting the FAA for purposes of contract interpretation, the parties did not displace the procedural provisions of the CAA. Both the FAA and the CAA employ the same principles of contract interpretation. Thus, regardless of which act governs the interpretation of the Agreement, the result is the same: Under the "plain meaning" rule, the Agreement's choice-of-law provision requires the application of the CAA's procedural provisions. The trial court had the authority under the CAA, which it properly exercised, to deny arbitration and to join all parties in a single action to be adjudicated in court. We therefore affirm.
I
BACKGROUND
The facts and allegations in this case are taken from the pleadings and the parties' submissions on the motion to compel arbitration.
A. Complaint
On March 31, 2008, Jose A. Valencia and Maricela Mendoza (plaintiffs) filed this action. An amended complaint (complaint) was filed on June 11, 2008. It alleged as follows.
*158 In June 2006, plaintiffs decided to buy real property in Palmdale, California. They were represented by Blanca Rivera-Letrado (Letrado), a licensed real estate agent. Letrado was employed by Keller Williams Realty. Richard Velasco owned the property. Peter Michael Smyth, a licensed real estate broker, doing business as California Investments, was Velasco's broker and the listing agent on the property.
Letrado and Smyth convinced plaintiffs to offer $949,000 for the property. Velasco accepted the offer. Plaintiffs were unaware that Velasco was in default on his "mortgage" in the amount of $660,000 and that the property was in foreclosure. Plaintiffs made a downpayment of $175,000, which was wired to either Fidelity National Title Company or United Title Company (formerly known as New Century Title Company). Without informing plaintiffs, Velasco transferred ownership of the property to Smyth before the close of escrow. Smyth's wife, Pam, executed interspousal transfer deeds to assist in the transaction. Reliable Trust Deed Services, Inc., became "a Trustee of the Deed of Trust in favor of Smyth." At the time of closing, plaintiffs believed that Velasco was the property owner and that they were buying the property from him.
After escrow closed, plaintiffs regularly deposited funds into a designated bank account to cover the "mortgage", insurance, taxes, and utilities. At some point, plaintiffs learned they had purchased the property from Smyth, not Velasco; they had been depositing funds into the Smyths' personal checking account; and the Smyths, together with others, had misappropriated plaintiffs' funds and used the money to finance other real estate transactions of their own.
In late 2007, Peter Smyth demanded that plaintiffs make additional "mortgage" payments, more than doubling the size of their monthly payment. Plaintiffs refused to make the additional payments, and Smyth initiated foreclosure proceedings.
The complaint named as defendants Peter Smyth, Pam Smyth, Letrado, Keller Williams Realty, United Title Company, Fidelity National Title Company, and Reliable Trust Deed Services, Inc. (collectively defendants). Plaintiffs alleged seven causes of action: fraud, conversion, breach of fiduciary duty, negligence, declaratory and injunctive relief, unfair business practices (Bus. & Prof. Code, §§ 17200-17210), and negligent infliction of emotional distress. They sought damages of at least $1 million.
B. Default and Discovery
Plaintiffs had difficulty serving process on the Smyths. Eventually, service was made by publication. The deadline for a responsive pleading passed. *159 Defaults were entered. Shortly thereafter, the Smyths discovered they were in default. By stipulation dated December 2, 2008, the parties set aside the defaults, and the Smyths' answer was filed.
Defendants took plaintiffs' depositions over a four-day period. Plaintiffs produced more than 700 pages of documents in response to discovery requests.
C. Motion to Compel Arbitration
On March 17, 2009, the Smyths filed a motion to compel arbitration, relying on the arbitration provision in the Agreement, a standard form residential purchase agreement published by the California Association of Realtors. The Agreement, revised in October 2002, indicated that plaintiffs were the buyers, and Velasco was the seller. It identified the real estate agents and brokers by name. The arbitration provision stated:
"17. DISPUTE RESOLUTION:
"A. MEDIATION: Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action....
"B. ARBITRATION OF DISPUTES: (1) Buyer and Seller agree that any dispute or claim in Law or Equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration .... The arbitrator shall be a retired judge or justice, or an attorney with at least 5 years of residential real estate Law experience, unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive California Law. The parties shall have the right to discovery in accordance with California Code of Civil Procedure § 1283.05. In all other respects, the arbitration shall be conducted in accordance with Title 9 of Part III of the California Code of Civil Procedure. Judgment upon the award of the arbitrator(s) may be entered [in] any court having jurisdiction. Interpretation of this agreement to arbitrate shall be governed by the Federal Arbitration Act. [¶] ... [¶]
"`NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. *160 BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.'
"`WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.'" (Italics & boldface added.)
Plaintiffs initialed the spaces for the buyers. Velasco initialed as the seller.
In support of the motion to compel arbitration, Peter Smyth asserted that, as the owner and seller of the property, he was Velasco's assignee and could enforce the arbitration provision. Pam Smyth argued that, because she had been a joint owner of the property with her husband, she could enforce the arbitration provision as a third party beneficiary. Together, the Smyths argued they had not waived their right to arbitration by delaying the motion to compel or by engaging in discovery. They also contended the trial court had no authority to stay or deny arbitration under the CAA because the Agreement adopted the FAA's procedural provisions.
Plaintiffs opposed the motion to compel, arguing the Smyths had waived any right to arbitration by delay in seeking arbitration and by participating in discovery. Plaintiffs also argued the Smyths were not parties to the Agreement and thus could not invoke the arbitration provision, and, in any event, the trial court should stay or deny arbitration under the CAA and consolidate all of the claims, arbitrable and nonarbitrable, for determination in court. Plaintiffs requested a stay or denial of arbitration pursuant to Code of Civil Procedure section 1281.2, subdivision (c) (hereafter section 1281.2(c)), which provides: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy ..., the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] ... [¶] (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.... [¶] ... [¶] If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third *161 party . . ., the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding." (§ 1281.2(c); all undesignated section references are to the Code of Civil Procedure.)
D. Trial Court's Ruling
The motion was heard on April 14, 2009. After argument, the trial court continued the hearing to allow the parties an opportunity to discuss settlement. The case did not settle. On May 18, 2009, the trial court denied the motion and issued a final order. The order recited that Peter Smyth could enforce the arbitration provision as Velasco's assignee; Pam Smyth had no standing to seek arbitration; and Peter Smyth had waived any right to arbitration by delay in bringing the motion and by participating in discovery. The trial court also invoked its authority under section 1281.2(c), denying arbitration and joining all parties in a single action to be adjudicated in court.
The Smyths appealed.
II
DISCUSSION
The Smyths contend (1) the trial court erred by finding they had waived their right to arbitration, and (2) the trial court lacked the authority to deny arbitration under section 1281.2(c) because the parties had adopted the procedural provisions of the FAA. In addition, Pam Smyth argues she had standing to invoke the Agreement's arbitration provision.
Based on the plain meaning of the arbitration provision, we conclude the parties agreed that the CAA, not the FAA, would govern the arbitration. Further, the trial court did not abuse its discretion in denying arbitration given the possibility of conflicting rulings if the claims against the Smyths had been arbitrated and the claims against the remaining defendants had been adjudicated in court. Because we conclude the trial court properly denied the motion to compel arbitration under section 1281.2(c), we do not address the Smyths' other contentions.
A. Standard of Review
The question of whether the Agreement incorporated the FAA's procedural provisions, thereby eliminating the trial court's authority under section *162 1281.2(c), "is a question of law involving interpretation of statutes and the contract (with no extrinsic evidence). We therefore apply a de novo standard of review." (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1117 [39 Cal.Rptr.3d 437] (Rodriguez).) The question of whether the trial court properly denied arbitration under section 1281.2(c) is reviewed for an abuse of discretion. (See Rodriguez, at p. 1116; Best Interiors, Inc. v. Millie & Severson, Inc. (2008) 161 Cal.App.4th 1320, 1329 [75 Cal.Rptr.3d 1].)
(1) We interpret the Agreement and section 1281.2(c) in light of their plain meaning. (See Zakarian v. Bekov (2002) 98 Cal.App.4th 316, 325 [119 Cal.Rptr.2d 623]; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 29 [10 Cal.Rptr.2d 183, 832 P.2d 899].) Under the plain meaning rule, courts give the words of the contract or statute their usual and ordinary meaning. (See Lehman v. Superior Court (2006) 145 Cal.App.4th 109, 115 [51 Cal.Rptr.3d 411].) "[W]e interpret the words in their ordinary sense, according to the plain meaning a layperson would attach to them." (Gravillis, supra, 143 Cal.App.4th at pp. 774-775.)
B. Arbitration and Choice of Law
In a series of cases, the United States Supreme Court, the California Supreme Court, and the California Courts of Appeal have discussed whether and when the FAA's procedural provisions apply in state court.
1. Volt
In Volt Info. Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468 [103 L.Ed.2d 488, 109 S.Ct. 1248] (Volt), Stanford University filed suit against a construction contractor and two other companies in California superior court. The contractor responded with a motion to compel arbitration. The agreement between Stanford and the contractor involved interstate commerce, making it subject to the FAA. (See 9 U.S.C. § 2; Volt, at pp. 471-472, 476.) There was no arbitration agreement between Stanford and the other two companies.
The motion was brought pursuant to both the CAA and the FAA. (Volt, supra, 489 U.S. at p. 471, fn. 2; see Code Civ. Proc., § 1281.2; 9 U.S.C. § 4.) The contract required the arbitration of "`[a]ll claims, disputes and other matters in question between the parties to this contract, arising out of or relating to this contract or the breach thereof. . . .'" (Volt, at p. 470, fn. 1.) A choice-of-law provision stated, "`[T]he Contract shall be governed by the law of the place where the Project is located,'" namely, California. (Id. at pp. 470, 472, 474, 476.) Stanford moved to stay the arbitration under section 1281.2(c) on the ground that the claims against two of the defendants were not arbitrable.
*163 (2) The superior court denied the contractor's motion to compel and granted Stanford's motion to stay the arbitration pending the outcome of the litigation. The Court of Appeal affirmed, concluding the choice-of-law provision incorporated the CAA's procedural provisions into the contract. The United States Supreme Court agreed, stating: "[W]e do not think the Court of Appeal offended [federal law] by interpreting the choice-of-law provision to mean that the parties intended the California rules of arbitration, including the § 1281.2(c) stay provision, to apply to their arbitration agreement. There is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate. Interpreting a choice-of-law clause to make applicable state rules governing the conduct of arbitrationrules which are manifestly designed to encourage resort to the arbitral processsimply does not . . . offend any . . . policy embodied in the FAA." (Volt, supra, 489 U.S. at p. 476.) "[W]e think the California arbitration rules which the parties have incorporated into their contract generally foster the federal policy favoring arbitration. . . . [T]he FAA itself contains no provision designed to deal with the special practical problems that arise in multiparty contractual disputes when some or all of the contracts at issue include agreements to arbitrate. California has taken the lead in fashioning a legislative response to this problem, by giving courts authority to consolidate or stay arbitration proceedings in these situations in order to minimize the potential for contradictory judgments. See Calif. Civ. Proc. Code Ann. § 1281.2(c)." (Volt, at p. 476, fn. 5.)
Volt continued: "The question remains whether . . . application of Cal. Civ. Proc. Code Ann. § 1281.2(c) is nonetheless pre-empted by the FAA to the extent it is used to stay arbitration under this contract involving interstate commerce. It is undisputed that this contract falls within the coverage of the FAA, since it involves interstate commerce, and that the FAA contains no provision authorizing a stay of arbitration in this situation." (Volt, supra, 489 U.S. at p. 476.) "[W]e have held that the FAA pre-empts state laws which `require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.' . . . But it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself. . . . [S]uch a result would be quite inimical to the FAA's primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the [FAA] is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, . . . so too may they specify by contract the rules under which that arbitration will be conducted. Where, as here, the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is *164 fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the Act would otherwise permit it to go forward. By permitting the courts to `rigorously enforce' such agreements according to their terms, . . . we give effect to the contractual rights and expectations of the parties, without doing violence to the policies behind by the FAA." (Volt, supra, 489 U.S. at pp. 478-479, citations omitted.)
Volt declined to decide whether the procedural provisions of the FAA were intended to apply only in federal court, saying: "While the argument [favoring that limitation] is not without some merit, we need not resolve it to decide this case, for we conclude that even if [the procedural provisions] of the FAA are fully applicable in state-court proceedings, they do not prevent application of Cal. Civ. Proc. Code Ann. § 1281.2(c) to stay arbitration where, as here, the parties have agreed to arbitrate in accordance with California law." (Volt, supra, 489 U.S. at p. 477, fn. omitted.) Thus, Volt left open the question of whether, in a case involving interstate commerce, the FAA's procedural provisions would apply in state court absent a choice-of-law provision incorporating state law.
2. Rosenthal
That question was before our Supreme Court in Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394 [58 Cal.Rptr.2d 875, 926 P.2d 1061] (Rosenthal). There, several investors sued their broker and its representatives, alleging the defendants had falsely told them their investments were protected against a loss of principal. The defendants petitioned the trial court to compel arbitration pursuant to the client agreements. Those agreements did not have a choice-of-law clause but did involve interstate commerce. The plaintiffs contended the client agreements were not enforceable on grounds of fraud and sought a jury trial under section 4 of the FAA (9 U.S.C. § 4) to determine the agreements' validity.
Section 4 of the FAA (9 U.S.C. § 4) provides: "A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. . . . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. . . . If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, *165 the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, . . . demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. . . ." (Italics added.)
In Rosenthal, supra, 14 Cal.4th 394, the trial court concluded the FAA's jury trial provision did not apply in state court. The Court of Appeal reversed. The Supreme Court agreed with the trial court, stating: "[B]ecause the transactions here involved interstate commerce, questions concerning arbitrability of the parties' dispute are governed by the [FAA]. . . . The primary substantive provision of the [FAA] is section 2, which provides: `A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' (9 U.S.C. § 2.)
(3) "`Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the [FAA].' . . . The rule of enforceability established by section 2 of the [FAA] preempts any contrary state law and is binding on state courts as well as federal. . . .
"The policy of enforceability stated in section 2 of the [FAA] is implemented in the remaining sections of the [act], especially sections 3 and 4, which concern attempts to resist arbitration or to litigate an issue subject to arbitration. Section 3 requires any court `of the United States' to grant a party's request for a stay of litigation on an arbitrable issue, pending completion of the arbitration. (9 U.S.C. § 3.) Section 4 requires a `United States district court' to entertain an application to compel arbitration. (9 U.S.C. § 4.) . . . The court is to order arbitration if satisfied `that the making of the agreement for arbitration or the failure to comply therewith is not in issue.' If such an issue is presented, the court is to `proceed summarily to the trial thereof.' . . . Despite the summary nature of the proceeding [under section 4], the party resisting arbitration may demand a jury trial on issues of the existence of the arbitration agreement or the party's default thereunder. . . .
". . . Code of Civil Procedure section 1281.2 . . ., like the [FAA's] section 4, provides a procedure by which a party may petition the court to order *166 arbitration of a controversy. Under section 1281.2, as under section 4 of the [FAA], the court may deny the application if it finds the party resisting arbitration did not in fact agree to arbitrate. . . . In one important respect, however, section 1281.2 differs from section 4 of the [FAA]: The California statute does not provide for a jury trial of issues as to the making of the arbitration agreement or the resisting party's default thereunder. Instead, our statutory scheme requires petitions to compel arbitration to be determined `in the manner . . . provided by law for the making and hearing of motions.' (Code Civ. Proc., § 1290.2 . . . .)
"The question thus arises whether section 4 of the [FAA], or sections 1281.2 and 1290.2 [of the CAA], provide the procedure to be followed in a California court in a case where the [FAA] governs arbitrability of the controversy. . . . In light both of the specific language of the [FAA] and of general principles of federal preemption, we conclude the [FAA] does not require California courts to hold a jury trial on the existence of an arbitration agreement. . . .
"Section 4 of the [FAA] does not explicitly govern the procedures to be used in state courts. . . . [T]he statute contemplates a petition in `United States district court,' and provides that certain steps are to be taken `in the manner provided by the Federal Rules of Civil Procedure.' This language has led the United States Supreme Court to express its doubt that section 4 is applicable in state courts. . . . [¶] . . . [¶]
"The question whether a jury trial is called for . . . requires us to go beyond the language of section 4 of the [FAA] and apply broader principles of federal preemption. It is a `general and unassailable proposition . . . that States may establish the rules of procedure governing litigation in their own courts,' even when the controversy is governed by substantive federal law. . . . `By the same token, however, where state courts entertain a federally created cause of action, the "federal right cannot be defeated by the forms of local practice."' . . .
"Like other federal procedural rules, therefore, `the procedural provisions of the [FAA] are not binding on state courts . . . provided applicable state procedures do not defeat the rights granted by Congress.' . . . We think it plain the California procedures for a summary determination of the petition to compel arbitration serve to further, rather than defeat, the enforceability policy of the [FAA]. Sections 1281.2 and 1290.2 are neutral as between state and federal law claims for enforcement of arbitration agreements. They display no hostility to arbitration as an alternative to litigation; to the contrary, the summary procedure provided, in which the existence and validity of the arbitration agreement is decided by the court in the manner of *167 a motion, is designed to further the use of private arbitration as a means of resolving disputes more quickly and less expensively than through litigation.. . . Because the California procedure for deciding motions to compel serves to further, rather than defeat, full and uniform effectuation of the federal law's objectives, the California law, rather than section 4 of the [FAA], is to be followed in California courts." (Rosenthal, supra, 14 Cal.4th at pp. 405-410, citations & fns. omitted, italics added & omitted.)
"[P]laintiffs maintain the use of a motion procedure to decide the petition to compel arbitration violates the [FAA] because it constitutes a special rule for arbitration agreements, not applicable to contracts generally. . . . [S]ection 2 of the [FAA], where applicable, precludes states from `singling out arbitration provisions for suspect status, requiring instead that such provisions be placed "upon the same footing as other contracts."' . . . Thus, a substantive state law rule may be applied to agreements subject to the [FAA] only if the state law `arose to govern issues concerning the validity, revocability and enforceability of contracts generally.' . . . Contrary to plaintiffs' claim, however, nothing in the California procedures violates this principle. Sections 1281.2 and 1290.2 establish no special rule of nonenforceability applicable only to arbitration agreements. Nor do the California procedures place arbitration agreements at a disadvantage compared to other contracts, or single them out for suspect status. Our statutes do establish procedures for determining enforceability not applicable to contracts generally, but they do not thereby run afoul of the [FAA's] section 2, which states the principle of equal enforceability, but does not dictate the procedures for determining enforceability." (Rosenthal, supra, 14 Cal.4th at p. 410, citations omitted.)
3. Mount Diablo
In Mount Diablo Medical Center v. Health Net of California, Inc. (2002) 101 Cal.App.4th 711 [124 Cal.Rptr.2d 607] (Mount Diablo), the Court of Appeal held that a "generic" choice-of-law provision, requiring the application of California law, was sufficient to avoid the FAA's procedural provisions even though the parties' contract involved interstate commerce. (See 101 Cal.App.4th at pp. 716, 717, fn. 5, 722.) In Mount Diablo, the plaintiff sued three defendants, one of which, Health Net, had entered into a contract with the plaintiff containing an arbitration clause. The contract also contained a choice-of-law provision, stating: "`The validity, construction, interpretation and enforcement of this Agreement shall be governed by the laws of the State of California.'" (Id. at p. 716.) Health Net petitioned the trial court to compel arbitration. The plaintiff argued that, because the claims against the other two defendants were not subject to arbitration, the trial court should deny arbitration given the potential for conflicting rulings if the controversy were *168 adjudicated in two forums. The trial court denied the petition and exercised its authority under section 1281.2(c), refusing to enforce the arbitration clause.
On appeal, Health Net asserted the FAA's procedural provisions were applicable because (1) the contract involved interstate commerce, and (2) the choice-of-law provision made no reference to arbitration. The Court of Appeal rejected that assertion, saying: "The choice-of-law provision in the present case may be `generic' in the sense that it does not mention arbitration or any other specific issue that might become a subject of controversy, but it is nonetheless broad, unqualified and all-encompassing. It provides that `[t]he validity, construction, interpretation and enforcement of this Agreement' shall be governed by California law. The explicit reference to enforcement reasonably includes such matters as whether proceedings to enforce the agreement shall occur in court or before an arbitrator. Chapter 2 (in which § 1281.2 appears) of title 9 of part III of the California Code of Civil Procedure is captioned `Enforcement of Arbitration Agreements.' An interpretation of the choice-of-law provision to exclude reference to this chapter would be strained at best." (Mount Diablo, supra, 101 Cal.App.4th at p. 722.)
(4) The Mount Diablo court also discussed whether section 1281.2(c) was inconsistent with the FAA's primary goal of ensuring that arbitration agreements are enforced according to their terms: "Section 1281.2(c) is not a provision designed to limit the rights of parties who choose to arbitrate or otherwise to discourage the use of arbitration. Rather, it is part of California's statutory scheme designed to enforce the parties' arbitration agreements, as the FAA requires. Section 1281.2(c) addresses the peculiar situation that arises when a controversy also affects claims by or against other parties not bound by the arbitration agreement. The California provision giving the court discretion not to enforce the arbitration agreement under such circumstancesin order to avoid potential inconsistency in outcome as well as duplication of effortdoes not contravene the letter or the spirit of the FAA.. . . Thus, there is no reason why the broad language of the choice-of-law clause in this case, calling for the enforcement of the agreement under California law, should not be read to invoke the provisions of section 1281.2(c)." (Mount Diablo, supra, 101 Cal.App.4th at p. 726.)
4. Cronus
In Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376 [25 Cal.Rptr.3d 540, 107 P.3d 217] (Cronus), the parties' contract required the arbitration of any dispute "`arising out of, in connection with, or in relation to the interpretation, performance or breach of this Agreement.'" (Id. at p. 381, fn. 3.) A choice-of-law clause provided, "`[T]his agreement shall be *169 construed and enforced in accordance with and governed by the laws of the State of California . . .,'" thereby applying the CAA's procedural provisions, including section 1281.2(c). (Cronus, at pp. 381, 387.) Another choice-of-law clause stated that "`[t]he designation of a situs or specifically a governing law for this agreement or the arbitration shall not be deemed an election to preclude application of the [FAA], if it would be applicable.'" (Id. at p. 381, fn. 3, italics added.) The parties did not dispute that their contract involved interstate commerce, such that it fell within the coverage of the FAA. (35 Cal.4th at p. 384.) In response to a petition to compel arbitration, the trial court relied on section 1281.2(c), staying the arbitration and consolidating the arbitrable claims with the civil action "`for all purposes.'" (Cronus, at p. 382.) The question before the Supreme Court was whether the FAA preempted section 1281.2(c) in light of the choice-of-law language referencing the application of the FAA if it would be applicable.
For several reasons, the Supreme Court concluded the FAA did not preempt section 1281.2(c). First, the court examined the language and legislative history of the FAA's procedural provisions, observing: "The language used in sections 3 and 4 [(9 U.S.C. §§ 3, 4)] and the legislative history of the FAA suggest that the sections were intended to apply only in federal court proceedings." (Cronus, supra, 35 Cal.4th at p. 388.) Second, "the United States Supreme Court does not read the FAA's procedural provisions to apply to state court proceedings." (Id. at p. 389.) Third, after analyzing Dean Witter Reynolds Inc. v. Byrd (1985) 470 U.S. 213, 217-221 [84 L.Ed.2d 158, 105 S.Ct. 1238] and Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 19-21 [74 L.Ed.2d 765, 103 S.Ct. 927] both of which restricted the authority of federal courts to stay or deny arbitration under the FAAthe Cronus court noted, "Byrd and Moses H. Cone do not address the appropriate procedure in state courts." (Cronus, supra, at p. 391, italics added.) Fourth, the court in Cronus concluded section 1281.2(c) would not undermine the objectives of the FAA because "section 1281.2(c) is not a special rule limiting the authority of arbitrators. It is an evenhanded law that allows the trial court to stay arbitration proceedings while the concurrent lawsuit proceeds or stay the lawsuit while arbitration proceeds to avoid conflicting rulings on common issues of fact and law amongst interrelated parties." (Cronus, supra, at p. 393.)
In closing, Cronus commented: "Our opinion does not preclude parties to an arbitration agreement [from] expressly designat[ing] that any arbitration proceeding should move forward under the FAA's procedural provisions rather than under state procedural law. We simply hold that the language of the arbitration clause in this case, calling for the application of the FAA `if it would be applicable,' should not be read to preclude the application of 1281.2(c), because it does not conflict with the applicable provisions of the *170 FAA and does not undermine or frustrate the FAA's substantive policy favoring arbitration." (Cronus, supra, 35 Cal.4th at p. 394.)
5. Rodriguez
In Rodriguez, supra, 136 Cal.App.4th 1110, the parties' agreement contained an arbitration clause stating: "`Pursuant to the Federal Arbitration Act, any controversy or claim arising [out] of or related to this Agreement or the breach of any provision thereof shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association . . . .'" (Id. at p. 1116.) The defendant moved to compel arbitration of a claim within the scope of the arbitration clause. The plaintiff did not dispute that the contract involved interstate commerce. (Id. at p. 1117 & fn. 4.) The trial court denied the motion based on section 1281.2(c), rejecting the argument that the FAA's procedural provisions applied.
The Court of Appeal reversed, stating: "The contract specifies that claims shall be arbitrated `pursuant to the FAA.' In common understanding, the phrase `pursuant to' means `in conformance to or agreement with' and `according to.' . . . Plainly, the language of the contract requires the parties to arbitrate `in conformance to' and `agreement with' the FAA. There is no other contract provision suggesting the parties intended to incorporate California arbitration law, nor is there any language suggesting the parties intended to arbitrate `in conformance to' some provisions of the FAA but not others. The phrase `pursuant to the FAA' is broad and unconditional, unlike the Cronus clause, which deferred to the contract's California choice-of-law provision by invoking only `applicable' provisions of the FAA. . . .
". . . [T]here is no ambiguity regarding the parties' intent. They adopted the FAAall of itto govern their arbitration. The FAA controls, including section 3 which requires the court to stay the judicial proceeding and compel arbitration. Although section 3 may not generally apply to state courts, here the parties did as Cronus suggested they could: They expressly designated their arbitration proceeding `should move forward under the FAA's procedural provisions rather than under state procedural law.' . . .
"Thus, the [trial] court erred by denying [the defendant's] motion to compel arbitration and stay the court proceeding as to plaintiffs and [the defendant]. . . . While we may question the wisdom of the parties' choice, and decry the potential for inefficiency, delay, and conflicting rulings, the parties were free to choose their arbitration rules. The court will not rewrite their contract." (Rodriguez, supra, 136 Cal.App.4th at p. 1122, citations omitted.)
*171 6. Warren-Guthrie
In Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804 [101 Cal.Rptr.2d 260] (Warren-Guthrie), disapproved on another point in Cronus, supra, 35 Cal.4th at page 393, footnote 8, the parties' contract contained a choice-of-law provision stating: "`All Arbitration shall be conducted in accordance with the California Code of Civil Procedure, commencing with Section 1280.'" (Warren-Guthrie, at p. 815.) The contract also involved interstate commerce, making it subject to the FAA. (See Warren-Guthrie, at pp. 810-811.) The defendant moved to compel arbitration of all claims in the complaint. The trial court denied the motion, relying on section 1281.2(c). The Court of Appeal reversed, explaining: "[The choice-of-law] provision[]. . . require[s] California contractual arbitration law to apply to the manner in which the arbitration shall be conducted. There is no express language indicating that California law shall be determinative as to whether or not arbitration is required. Unlike in Volt, [supra, 489 U.S. 468,] the parties did not agree that California law shall apply for all purposes. Rather, the agreement limits application of California law to California contractual arbitration law, and further limits the scope of California law to that law pertaining to the manner in which the arbitration is to be conducted. The key [contract] provision states: `All Arbitration shall be conducted in accordance with the California Code of Civil Procedure, commencing with Section 1280.' The key term is `conducted,' which is defined . . . as, `To manage; direct; lead; have direction; carry on; regulate; do business.' . . .
"We conclude the [contract] is sufficiently clear in stating that arbitration is required. No other exception is specified. Agreement to apply California contractual arbitration law is expressly limited to that law which bears on how the arbitration shall be conducted, as distinguished from agreeing that the [contract] shall be governed by California law for all purposes, including the determination as whether or not arbitration is required. There being no such express language to the contrary, and in light of the overriding state and federal policy of enforcing privately negotiated agreements to arbitrate in accordance with their terms . . ., we conclude the [contract's] limited choice of law provision does not allow nonarbitration based on the section 1281.2(c) exception to arbitration. . . . Hence, under the FAA, the trial court erred in relying on section 1281.2(c) in denying [the] motion to compel arbitration." (Warren-Guthrie, supra, 84 Cal.App.4th at pp. 815-816, citations & fn. omitted.)
7. DIRECTV
More recently, in Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 [82 Cal.Rptr.3d 229, 190 P.3d 586] (DIRECTV), our Supreme *172 Court addressed whether, under the CAA, the parties may, by agreement, expand judicial review of an arbitration award to include legal error. The United States Supreme Court had decided that issue under the FAA in Hall Street Associates, L.L.C. v. Mattel, Inc. (2008) 552 U.S. 576 [170 L.Ed.2d 254, 128 S.Ct. 1396] (Hall Street), concluding that the sections of the FAA governing judicial review (9 U.S.C. §§ 10-11) did not permit the parties to expand the scope of review by agreement. (Hall Street, at pp. 586-587.)
In DIRECTV, the parties were required to arbitrate any "`claim arising out of the interpretation, performance, or breach of this Agreement.'" (DIRECTV, supra, 44 Cal.4th at p. 1341, fn. 3.) The arbitration provision also stated: "`The parties acknowledge that the transactions contemplated by this Agreement involve commerce, as defined in [the FAA].'" (Id. at p. 1342, fn. 3.) The agreement contained two choice-of-law provisions, one for substantive law and one for procedural law. The former stated: "`The arbitrators shall apply California substantive law to the proceeding, except to the extent Federal substantive law would apply to any claim.'" (Id. at p. 1341, fn. 3, italics added.)
The parties disagreed about the meaning of the procedural choice-of-law clause, which read: "`[A]ny arbitration conducted hereunder shall be governed by the [FAA].'" (DIRECTV, supra, 44 Cal.4th at p. 1342, fn. 3.) One side argued the clause required the application of the FAA's procedural provisions, including Hall Street's strict limitations on judicial review. The other side, namely DIRECTV, Inc., contended "the FAA provisions governing judicial review are specific to federal courts; . . . and . . . the [clause] calls only for the arbitration itself to be governed by the [FAA], not postarbitration proceedings in court." (DIRECTV, supra, 44 Cal.4th at pp. 1350-1351, fn. 12, italics added.) The Supreme Court concluded: "DIRECTV has the better argument. Sections 10 and 11 of the FAA refer to review by `the United States court in and for the district where the award was made.' (9 U.S.C. §§ 10(a), 11.) The parties' contract did not specify whether enforcement proceedings were to be brought in state or federal court . . . .'" (DIRECTV, at p. 1351, fn. 12.)
The enforcement proceedings in DIRECTV were brought in superior court, thus raising the question of whether the FAA's provisions governing judicial review (9 U.S.C. §§ 10-11) applied in state court. On that point, our Supreme Court explained: "Section 2 of the FAA, declaring the enforceability of arbitration agreements, `create[s] a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.' . . . The FAA governs agreements in contracts involving interstate commerce, like those in this case. . . . The United States Supreme Court has frequently held that state laws invalidating arbitration agreements on grounds *173 applicable only to arbitration provisions contravene the policy of enforceability established by section 2 of the FAA, and are therefore preempted. . . .
"However, `the United States Supreme Court does not read the FAA's procedural provisions to apply to state court proceedings.' . . . Sections 3 and 4 of the FAA, governing stays of litigation and petitions to enforce arbitration agreements, do not apply in state court. . . . As we have noted, the provisions for judicial review of arbitration awards in sections 10 and 11 of the FAA are directed to `the United States court in and for the district wherein the award was made.' . . . We have held that similar language in sections 3 and 4 of the FAA reflects Congress's intent to limit the application of those provisions to federal courts. [¶] . . . [¶]
". . . [A]s in Cronus and Rosenthal, the FAA's procedural provisions are not controlling, and the determinative question is whether CAA procedures conflict with the FAA policy favoring the enforcement of arbitration agreements." (DIRECTV, supra, 44 Cal.4th at pp. 1350-1352, citations omitted, italics added.)
DIRECTV found no conflict: "[T]he terms of the parties' agreement [prevail] over considerations of expediency in the dispute resolution process. `After all, the basic objective in this area is not to resolve disputes in the quickest manner possible, no matter what the parties' wishes . . ., but to ensure that commercial arbitration agreements, like other contracts, "`are enforced according to their terms,'" . . . and according to the intentions of the parties . . . .' . . . The court has viewed the federal policy served by the FAA as `at bottom a policy guaranteeing the enforcement of private contractual arrangements.' . . . [¶] . . . [¶]
"We conclude that the Hall Street holding is restricted to proceedings to review arbitration awards under the FAA, and does not require state law to conform with its limitations. Furthermore, a reading of the CAA that permits the enforcement of agreements for merits review is fully consistent with the FAA `policy guaranteeing the enforcement of private contractual arrangements.'" (DIRECTV, supra, 44 Cal.4th at pp. 1353-1354, citations omitted.)
DIRECTV went on to hold that, under the CAA, parties may expand the scope of review to include errors of law if the agreement explicitly and unambiguously provides for review on the merits. (DIRECTV, supra, 44 Cal.4th at pp. 1355, 1361.)
8. Rosenthal-Cronus-DIRECTV Trilogy
(5) A trilogy of cases, Rosenthal, Cronus, and DIRECTV, recognizes that if a contract involves interstate commerce, the FAA's substantive provision *174 (9 U.S.C. § 2) applies to the arbitration. But the FAA's procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the contract contains a choice-of-law clause expressly incorporating them. In Rosenthal, supra, 14 Cal.4th 394, the parties' contract involved interstate commerce, making the FAA's substantive provision (9 U.S.C. § 2) applicable, but the contract did not contain a choice-of-law clause. The court concluded the FAA's procedural provision requiring a jury trial (9 U.S.C. § 4) did not apply in state court and instead the CAA's procedural provisionsmandating the use of law-and-motion proceduresgoverned. (See Code Civ. Proc., §§ 1281.2, 1290.2.) As Rosenthal noted: "It is a `general and unassailable proposition. . . that States may establish the rules of procedure governing litigation in their own courts,' even when the controversy is governed by substantive federal law." (Rosenthal, supra, 14 Cal.4th at p. 409, italics added.)
In Cronus, supra, 35 Cal.4th 376, the FAA's substantive provision (9 U.S.C. § 2) applied because the contract involved interstate commerce. The contract contained a choice-of-law clause as to procedural matters, stating "`[t]he designation of . . . a governing law for this agreement or the arbitration shall not be deemed an election to preclude application of the [FAA], if it would be applicable.'" (Cronus, supra, at p. 381 & fn. 3, italics added.) The court concluded this language permitted the application of the CAA's procedural provisions, specifically, section 1281.2(c). In reaching that conclusion, the court observed the FAA's procedural provisions were intended to apply only in federal court proceedings. (Cronus, at pp. 388-389, 391.)
And in DIRECTV, supra, 44 Cal.4th 1334, the contract involved interstate commerce, so the FAA's substantive provision (9 U.S.C. § 2) applied. A choice-of-law clause concerning procedural matters stated: "`[A]ny arbitration conducted hereunder shall be governed by the [FAA].'" (DIRECTV, at p. 1342, fn. 3.) The court concluded this language did not make the FAA's sections on judicial review (9 U.S.C. §§ 10, 11) applicable in state court. (DIRECTV, at pp. 1350-1351, fn. 12.) Indeed, the court stated that the language of several of the FAA's procedural sections "reflects Congress's intent to limit the application of those provisions to federal courts." (DIRECTV, at p. 1351, citing 9 U.S.C. §§ 3, 4, 10, 11; see also id. at pp. 1351-1352.) Thus, the procedural provisions of the CAA apply in California courts by default. "There is no federal policy favoring arbitration under a certain set of procedural rules . . . ." (Volt, supra, 489 U.S. at p. 476, italics added.) But the parties may "expressly designate that any arbitration proceeding [may] move forward under the FAA's procedural provisions rather than under state procedural law." (Cronus, supra, 35 Cal.4th at p. 394, original italics.) Absent such an express designation, however, the FAA's procedural provisions do not apply in state court. (Cf. Security Inc. Co. of Hartford v. TIG Ins. Co. (2d Cir. 2004) 360 F.3d 322, 323, fn. 2, 327-329 [where arbitration agreement stated it was governed by California law, *175 CAA's procedural provisions applied, including § 1281.2(c), permitting a stay of arbitration in federal district court pending outcome of litigation involving third parties].)
C. The Present Agreement
In Gravillis, supra, 143 Cal.App.4th 761, the plaintiffs purchased a house using the standard form residential purchase agreement published and revised by the California Association of Realtors in October 2000. While the house was being remodeled, the plaintiffs first learned the house was structurally unsound at the time of purchase. They sued their brokers, the seller, the seller's brokers, the termite inspection company, and the company's owner, alleging the defendants had failed to disclose material facts about the condition of the property. The plaintiffs also alleged that the nondisclosure had caused them to suffer emotional distress. The brokers filed a motion to compel arbitration, relying on the arbitration provision in the purchase agreement. The plaintiffs opposed the motion, arguing that (1) their claims came within a "bodily injury" exclusion in the arbitration provision, and (2) arbitration should be stayed or denied under section 1281.2(c) because the termite inspection company and its owner were not parties to the agreement, thereby creating the possibility of conflicting rulings if some of the claims were arbitrated. The trial court denied the motion on the ground that the plaintiffs' claims fell within the bodily injury exclusion.
On appeal, we held that the bodily injury exclusion did not apply to claims alleging emotional distress and that, on remand, the motion to compel arbitration should be granted unless the trial court determined that a stay or denial of arbitration was appropriate under section 1281.2(c). (See Gravillis, supra, 143 Cal.App.4th at pp. 773-784.) We also concluded the parties had adopted the CAA's procedural provisions, explaining: "[T]he contracting parties agreed that California law would govern the arbitration provision. The Agreement states: `By initialing in the space below you are agreeing to have any dispute arising out of the matters included in the "Arbitration of Disputes" provision decided by neutral arbitration as provided by California law . . . . If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under the authority of the California Code of Civil Procedure.'. . . The CAA, which contains section 1281.2(c), is found in the Code of Civil Procedure. [¶] . . . [T]he Agreement [therefore] provides that a motion to compel arbitration is to be decided under California law . . . ." (Gravillis, supra, 143 Cal.App.4th at p. 784, original italics, fn. omitted.)
In the present case, the Agreement includes the language we cited in Gravillis for the proposition that the parties had adopted the CAA's procedural provisions. But the Agreement also contains additional language that *176 did not appear in the Gravillis agreement. The question on appeal therefore becomes whether this additional language warrants a different conclusion than the one we reached in Gravillis. The answer is no because the CAA and the FAA employ the same rules of contract interpretation.
The Agreement contains the following additional language, consisting of two sentences: "The parties shall have the right to discovery in accordance with California Code of Civil Procedure § 1283.05. . . . Interpretation of this agreement to arbitrate shall be governed by the Federal Arbitration Act."
The first sentence, which pertains to the right to discovery under the CAA, is simply a more specific reference to one of the CAA's procedural provisions. (See § 1283.1, subds. (a), (b) [if dispute does not involve injury or death of a person, § 1283.05, governing discovery, is not conclusively deemed part of arbitration agreement, and parties must incorporate § 1283.05 into agreement].) The second sentence, requiring the Agreement to be interpreted in accordance with the FAA, merits closer attention.
The rules of contract interpretation employed under the FAA are the same as those used under the CAA. For example, under the FAA, courts interpret arbitration agreements using the plain meaning rule. (See, e.g., Lambert v. Austin Ind. (11th Cir. 2008) 544 F.3d 1192, 1199; Intern. Broth. of Elec. Workers v. Illinois Bell Tele. (7th Cir. 2007) 491 F.3d 685, 688; O'Neil v. Hilton Head Hosp. (4th Cir. 1997) 115 F.3d 272, 275; Raytheon v. National Union Fire Ins. of Pittsburgh (S.D.N.Y. 2004) 306 F.Supp.2d 346, 356-358.) We have employed that rule here. To take another example, under the FAA, "`the strong federal policy favoring arbitration agreements . . . requires [courts] to resolve any doubts concerning arbitrability in favor of arbitration . . . .'" (Rivera-Domenech v. Calvesbert Law Offices PSC (1st Cir. 2005) 402 F.3d 246, 250; accord, Nestle Waters North America, Inc. v. Bollman (6th Cir. 2007) 505 F.3d 498, 503-504.) Similarly, under the CAA, "`[there is] a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.'" (Bono v. David (2007) 147 Cal.App.4th 1055, 1062 [54 Cal.Rptr.3d 837]; accord, California Correctional Peace Officers Assn. v. State of California (2006) 142 Cal.App.4th 198, 205 [47 Cal.Rptr.3d 717].)
"`In most important respects, the California statutory scheme on enforcement of private arbitration agreements is similar to the [FAA]; the similarity is not surprising, as the two share origins in the earlier statutes of New York and New Jersey.'" (DIRECTV, supra, 44 Cal.4th at p. 1343.)
"California courts often look to federal law when deciding arbitration issues under state law. . . . California law is consistent with federal law on the *177 question of who decides disputes over arbitrability. . . . `Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.'" (Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 553 [21 Cal.Rptr.3d 322], citation omitted.)
Generally, the FAA obligates federal courts to apply state law when interpreting an arbitration clause. (See, e.g., First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944 [131 L.Ed.2d 985, 115 S.Ct. 1920]; Paladino v. Avnet Computer Technologies, Inc. (11th Cir. 1998) 134 F.3d 1054, 1061-1062 (conc. opn. of Cox, J., joined by Tjoflat, J.); Scurtu v. International Student Exchange (S.D.Ala. 2007) 523 F.Supp.2d 1313, 1318-1325; Coffman v. Provost * Umphrey Law Firm (E.D.Tex. 2001) 161 F.Supp.2d 720, 724, affd. (5th Cir. 2002) 33 Fed.Appx. 705; cf. Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 60, fn. 4 [131 L.Ed.2d 76, 115 S.Ct. 1212] [explaining that in Volt, Supreme Court did not interpret choice-of-law provision de novo but deferred to state court's interpretation of provision].) Thus, a federal court would apply California law when determining the validity of an arbitration clause in a case involving California residents or employees. (See, e.g., Pokorny v. Quixtar, Inc. (9th Cir. 2010) 601 F.3d 987, 994-996; Davis v. O'Melveny & Myers (9th Cir. 2007) 485 F.3d 1066, 1070 & fn. 1, 1072.)
(6) In short, "even when the [FAA] applies, interpretation of the arbitration agreement is governed by state law principles. . . . Under California law, ordinary rules of contract interpretation apply to arbitration agreements. . . . `"The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. . . . If contractual language is clear and explicit, it governs."'" (Hotels Nevada, LLC v. Bridge Banc, LLC (2005) 130 Cal.App.4th 1431, 1435 [30 Cal.Rptr.3d 903], citations omitted; accord, Choice Hotels Internat. v. BSR Tropicana Resort (4th Cir. 2001) 252 F.3d 707, 710 [under FAA, agreements to arbitrate are construed according to ordinary rules of contract interpretation].)
(7) As noted, under the Rosenthal-Cronus-DIRECTV trilogy, the FAA's procedural provisions do not apply in state court unless the parties expressly adopt them. The trilogy makes clear that the question is not whether the parties adopted the CAA's procedural provisions: The state's procedural statutes (§§ 1281.2, 1290.2) apply by default because Congress intended the comparable FAA sections (9 U.S.C. §§ 3, 4, 10, 11) to apply in federal court. The question, therefore, is whether the parties expressly incorporated the FAA's procedural provisions into their agreements.
Here, the Agreement states, "`"By initialing in the space below you are agreeing to have any dispute arising out of the matters included in the *178 `Arbitration of Disputes' provision decided by neutral arbitration as provided by California law . . . . If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under the authority of the California Code of Civil Procedure."'" (Italics added, some capitalization omitted.) As revised in October 2002, the Agreement is to be interpreted in accordance with the FAA. Under the plain meaning rule, as employed under the FAA, the Agreement's references to California law and the Code of Civil Procedurewhich contains the CAAdo not expressly adopt the FAA's procedural provisions. Rather, the Agreement expressly incorporates the CAA's procedural provisions.
Our conclusion is at odds with the Smyths' contention that "[t]he reason [the] standard California Association of Realtors [Residential] Purchase Contract[] utilizes federal arbitration law is to obviate what has occurred in the present case. Usually in a dispute regarding a real estate sales transaction for the purchase of a house, not only are the buyers and sellers parties, but also the real estate agents and brokers and escrow become parties. Reliance on federal law prevents the arbitration agreement from being circumvented by the plaintiff (seller or buyer) naming as defendants the agents, brokers, and escrow."
(8) But the plain meaning of the Agreement does not support the Smyths' contention. The FAA and the CAA employ the same rules of contract interpretation. It follows that interpreting an arbitration agreement in accordance with the FAA does not accomplish the Smyths' goal of displacing section 1281.2(c). "[T]he federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate." (Volt, supra, 489 U.S. at p. 476, italics added.) The plain terms of the Agreement do not call for the application of the FAA's procedural provisions. (Cf. Christensen v. Smith (2009) 171 Cal.App.4th 931, 937-938 [90 Cal.Rptr.3d 57] [interpreting arbitration agreement according to FAA in deciding whether parties agreed to expanded scope of judicial review of arbitration awards].)
Further, Volt, Cronus, and Mount Diablo concluded section 1281.2(c) was consistent with the objectives of the FAA. (See Volt, supra, 489 U.S. at pp. 476-479; Cronus, supra, 35 Cal.4th at pp. 391-393; Mount Diablo, supra, 101 Cal.App.4th at p. 726.) Consequently, we need not "determin[e] . . . whether [section 1281.2(c)] conflict[s] with the FAA policy favoring the enforcement of arbitration agreements." (DIRECTV, supra, 44 Cal.4th at p. 1352.)
We also note that in Volt, Rosenthal, Mount Diablo, Cronus, Rodriguez, Warren-Guthrie, and DIRECTV, the parties' agreements involved interstate *179 commerce, making the FAA's substantive provision applicable to the arbitration proceedings. (See 9 U.S.C. § 2; see, e.g., Volt, supra, 489 U.S. at p. 476; Rosenthal, supra, 14 Cal.4th at p. 405.) Here, the Smyths do not contend the Agreement involves interstate commerce, nor have they offered any evidence to that effect. Thus, the language of the Agreement, not an analysis of interstate commerce, dictates the applicable law. (See Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 211-214 [25 Cal.Rptr.3d 426] [party asserting that state law is preempted by FAA has burden of proving transaction involved interstate commerce]; Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1099-1101 [56 Cal.Rptr.3d 326] [same].)
In Mount Diablo, supra, 101 Cal.App.4th 711, the choice-of-law provision stated, "`The validity, construction, interpretation and enforcement of this Agreement shall be governed by the laws of the State of California'" (id. at p. 716). Mount Diablo relied in large part on the provision's "explicit reference" to "enforcement" in concluding the CAA's procedural provisions applied. (See 101 Cal.App.4th at pp. 722, 724.) We do not read Mount Diablo to suggest that an explicit reference to "interpretation," by itself, would determine the applicable procedural law.
That brings us, finally, to Warren-Guthrie, supra, 84 Cal.App.4th 804. There, the contract involved interstate commerce, making it subject to the FAA's substantive provision (9 U.S.C. § 2). (See Warren-Guthrie, at pp. 810-811.) The choice-of-law clause stated, "`All Arbitration shall be conducted in accordance with the California Code of Civil Procedure, commencing with Section 1280.'" (Warren-Guthrie, at p. 815.) The Court of Appeal focused on the word "conducted," interpreted that word to mean "how the arbitration shall be conducted," and concluded the choice-of-law provision was too narrow to incorporate the CAA. (84 Cal.App.4th at pp. 815-816.) The court held that because the parties had failed to adopt the CAA, the FAA's procedural provisions governed, displacing section 1281.2(c).
But Warren-Guthrie asked and answered the wrong question. The complaint and the motion to compel arbitration were brought in superior court. The CAA's procedural provisions therefore applied unless the parties expressly adopted the FAA. (See Rodriguez, supra, 136 Cal.App.4th at p. 1122.) Assuming the parties failed to incorporate the CAA's procedural provisions, that failure was of no consequence: A state's procedural statutes automatically apply in state court unless the parties expressly agree otherwise. (See Volt, supra, 489 U.S. at p. 476, 479; Rosenthal, supra, 14 Cal.4th at p. 409; Cronus, supra, 35 Cal.4th at p. 394; DIRECTV, supra, 44 Cal.4th at *180 pp. 1350-1351, fn. 12, 1351-1352.) Because the parties in Warren-Guthrie did not affirmatively adopt the FAA's procedural provisions, section 1281.2(c) was fully applicable.
D. Trial Court's Discretion Under Section 1281.2(c)
All that remains is the question of whether the trial court properly exercised its discretion under section 1281.2(c). In its order denying arbitration and joining all parties in a single action to be adjudicated in court, the trial court stated: "[D]efendants are not entitled to arbitration as a matter of right. This is so because this action names third parties who are not parties to the arbitration agreement. The claims against these third parties arise out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. Based on the complaint, plaintiffs are alleging that defendants Letrado and Peter Smyth fraudulently concealed their use of plaintiffs' monies to acquire the subject property for themselves. Plaintiffs are alleging joint action against these defendants.
"Similarly, plaintiffs are alleging negligence against defendants Peter Smyth, Letrado, Keller Williams [Realty], United [Title Company] and Fidelity [National Title Company]. Plaintiffs allege that all these defendants breached their duties to plaintiffs by failing to disclose conflicts of interest, failing to disclose the true nature of the real estate purchase and failing to disclose all their financial relationships with each other.
"At the very least, all of these theories of liability hinge on findings regarding the conduct of defendants Smyth and Letrado. As such, there will be an overlap of issues of law and fact. Based on this finding, it is within the Court's discretion to deny the motion to compel arbitration and force the parties to join in a single action. See § 1281.2[(c)]. Although the parties may expressly agree that FAA procedural rules apply to an arbitration proceeding, there is nothing in the parties' arbitration clause indicating such an agreement." (Italics added.)
The trial court's analysis is persuasive. We find no abuse of discretion. (See Birl v. Heritage Care LLC (2009) 172 Cal.App.4th 1313, 1319-1321 [91 Cal.Rptr.3d 777]; Best Interiors, Inc. v. Millie & Severson, Inc., supra, 161 Cal.App.4th at pp. 1329-1330; Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 483-484, 488 [17 Cal.Rptr.3d 88].)
*181 III
DISPOSITION
The order is affirmed.
Rothschild, J., and Johnson, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644091/ | 4 So. 3d 588 (2007)
CHRISTOPHER BRIAN HAWTHORNE
v.
STATE.
No. CR-05-2015.
Court of Criminal Appeals of Alabama.
February 23, 2007.
Decision of the alabama court of criminal appeals without opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345887/ | 174 Ga. App. 448 (1985)
330 S.E.2d 386
WHITE
v.
CLINE et al.
69723.
Court of Appeals of Georgia.
Decided April 2, 1985.
R. Stephen Tingle, Frank M. Gleason, John W. Davis, Jr., for appellant.
Jon Bolling Wood, Robert J. Harriss, L. Hugh Kemp, Leslie *452 Waycaster, for appellees.
DEEN, Presiding Judge.
Appellee Melanie Cline was a guest passenger in the Oldsmobile Cutlass driven by Carla Middleton, defendant/appellee in the cross-claim filed by appellant White, who was named as defendant in the action originally filed by appellee Cline. Ms. Middleton was attempting to exit from a restaurant parking lot and pull into the center turn lane preparatory to turning left, or north, on the highway on which the restaurant faced. Her Cutlass was struck on the left rear fender by a Cadillac proceeding southward in the inside or "fast" southbound lane. The blow propelled the Cutlass into the northbound inside or "fast" lane, where it stalled and remained stationary, facing northward. Before the engine could be restarted, appellant White, accelerating from a traffic light two blocks to the south, struck the rear of the Cutlass straight on and knocked the latter forward to a position athwart the two northbound lanes. Ms. Cline sustained a dislocated hip; Ms. Middleton and a third occupant of the Cutlass suffered minor injuries, as did appellant White. The Oldsmobile was "totaled," and the White truck, which its owner estimated as having had a value of $2,500-$3,000 immediately prior to the collision, was sold for salvage value.
The accident occurred September 1, 1982, and the following January Ms. Cline brought an action against appellant and Mrs. Gentry, driver of the Cadillac, as joint and several tortfeasors. She sought $150,000 in damages for pain and suffering and $50,000 for diminished earning capacity. White answered, denying liability, and filed a cross-claim against Middleton, alleging that her negligence was the sole and proximate cause of the injuries and seeking $3,000 in property damage. He also moved to add Middleton as a party defendant, which motion was granted. In her answer Ms. Middleton denied liability and alleged that Ms. Cline's injuries resulted from the negligence *449 of White and Gentry. Ms. Cline subsequently asserted a claim against Ms. Middleton. Upon learning that an eyewitness had seen aluminum cans, including beer cans, in the back of White's pickup truck, Ms. Cline moved to amend the pretrial order so as to add a negligence count to the effect that White was operating a vehicle while under the influence of alcohol. This motion was subsequently abandoned, and counsel agreed that this count would not be pursued at trial.
A Walker County jury entered verdicts in favor of Ms. Cline, Ms. Middleton, and Mrs. Gentry and against Mr. White. White's counsel moved for judgment notwithstanding the verdict, and the court denied the motion. On appeal White enumerates six errors.
1. Appellant's enumeration regarding the court's permitting only one of his two attorneys (one retained by his insurer and the other his private attorney) to participate in the closing argument is patently without merit. OCGA § 9-10-182 expressly prohibits the procedure advocated by appellant: "Not more than two counsel for each side shall be permitted to argue any case, except by express leave of the court; and in no case shall more than one counsel be heard in conclusion." (Emphasis supplied.) Heard, Leverette & Adams v. Stone, 167 Ga. App. 113 (306 SE2d 72) (1983), on which appellant principally relies, is distinguishable on its facts from the case at bar and does not stand for the proposition for which it is cited. In that case two attorneys from the firm representing a single plaintiff were present at the trial. A junior member of the firm conducted the early phases of the trial, and a senior member had planned to present the closing argument. The court refused to permit the senior attorney to do this but required the junior attorney to present the closing argument. This court reversed. In Heard, had the senior attorney been allowed to present the closing argument, his participation would in any case have come within the permissible "[n]to more than two . . . for each side." Moreover, it was only one of the two attorneys in Heard not both of them, as in the instant case who wished to participate in the closing argument.
2, 3. Examination of the trial transcript reveals that, under the facts of the case sub judice, the trial court was correct both in giving a jury instruction to the effect that following too closely constituted negligence per se (OCGA § 40-6-49), and in refusing to instruct the jury on legal accident. Whether or not appellant was following too closely when he struck the Middleton vehicle was clearly a jury question. Lynch v. Broom, 158 Ga. App. 52 (279 SE2d 302) (1981); Malcom v. Malcolm, 112 Ga. App. 151 (144 SE2d 188) (1965). It is well settled that violation of a statute, including those regulating traffic, is negligence per se. See Wallace v. Yarbrough, 155 Ga. App. 184 (270 SE2d 357) (1980); Platt v. Southern Photo Material Co., 4 Ga. App. *450 159 (60 S.E. 1068) (1908). As to the propriety of a jury instruction on legal accident, this court's decision in Chadwick v. Miller, 169 Ga. App. 338 (312 SE2d 835) (1983), sets forth a definition of legal accident which clearly excludes fact situations such as that in the instant case. An instruction on legal accident would have been improper under the facts of the case at bar, and these two enumerations are without merit.
4. Appellant assigns as error the trial court's denial of his motion for mistrial on the basis that the issue of intoxication had improperly been presented to the jury. Portions of the deposition of a witness who was the first person to reach White's truck and also the first, or one of the first, to reach the Middleton automobile, were read to the jury. During the taking of the deposition prior to trial, the deponent had testified that there were beer cans and cola cans in the back of the truck, and that he had smelled alcohol in and around the truck. Also prior to trial, the attorneys had agreed that this matter would not be pursued, and a proposed amendment to the pretrial order alleging that White was driving under the influence was abandoned. After unrelated excerpts from the deposition were read at trial, the following question posed to the deponent was read: "Q. Now, when you went to the pickup truck after the collision, did you find any evidence that there had been any drinking going on in either vehicle?" One of appellant's attorneys immediately interposed, "Now, may it please the Court, I'd like to have a conference with the Court in view of the pre-trial order. I'd like to have counsel up here with the Court." A brief bench conference was held, after which the Court announced an overnight recess. When the jury had departed, a further conference was held at which it was agreed that the remainder of this section of the deposition would be omitted. When trial resumed the next morning, the court made no comment on the deposition but merely instructed counsel to resume the reading of the deposition; the latter did so at the point agreed upon during the previous afternoon's conference, and no allusion to alcohol consumption was made by anyone during the remainder of the trial. The trial transcript reveals that the motion for mistrial was not renewed.
Scrutiny of the record persuades us that the testimony cited, supra, could not likely have been prejudicial to appellant. No testimony regarding the presence of drink cans or the presence of an odor of alcohol was actually given in the jury's presence, and the circumspect manner in which appellant's counsel requested a bench conference gave no hint that any such testimony was in the offing. Nothing in the court's announcement of the overnight recess suggested that the reason for the recess was anything other than the lateness of the hour or the pendency of other court business. Under these circumstances, the bare allusion to evidence of "drinking" might have applied *451 equally to any of the other parties as well as to appellant White; or it might even have been a preliminary to a negative reply from the witness. Moreover, the fortuitous circumstances under which the jury was adjourned and the trial resumed the next morning would only have enhanced the non-prejudicial effect of the testimony on which the motion for mistrial was based. It is true that the trial court gave no curative instructions such as are ordinarily required in such a situation. In the particular circumstances of the instant case, however, none was needed. Indeed, to have given a "curative" instruction would likely have tended only to create exactly the prejudicial effect that appellant alleges unconvincingly, we believe was created here. We must therefore disagree with appellant's assessment of the effect of the challenged testimony and hold that, because the testimony, under the circumstances, could not likely have been prejudicial to the defendant, the trial court acted properly in overruling the motion for mistrial.
5. As to appellant's fifth enumeration, in which he claims the court erred in failing to grant him additional peremptory challenges, it is well settled that in civil cases, absent unusual procedural situations none of which obtains here, each side is entitled to only twelve peremptory strikes. OCGA § 15-12-122; New York Life Ins. Co. v. Hartford Accident &c. Co., 181 Ga. 55 (181 S.E. 755) (1935); Pool v. Gramling, Spalding & Co., 88 Ga. 653 (16 S.E. 52) (1891); Collins v. Cooper, 145 Ga. App. 559 (244 SE2d 95) (1978); see also Ellis v. Geer, 36 Ga. App. 519 (137 S.E. 290) (1927). State Hwy. Dept. v. Eagle Constr. Co., 125 Ga. App. 678 (188 SE2d 810) (1972), which is cited by appellant, is distinguishable on its facts from the case at bar.
6. Appellant is correct in his contention that the trial court erred in its computation of interest on the judgment. Under OCGA § 51-12-14, prejudgment interest on the amount of $20,000 should not have begun to run until thirty days after receipt of the demand for the $20,000. Post-judgment interest should not have begun to run until the date of filing of the judgment. This case should therefore be remanded for reformation of the judgment with respect to the dates on which interest should properly have begun to accrue.
Judgment affirmed in part and reversed in part and case remanded with direction. Pope and Beasley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345894/ | 174 Ga. App. 531 (1985)
330 S.E.2d 760
WHITE
v.
THE STATE.
69839.
Court of Appeals of Georgia.
Decided April 10, 1985.
*533 Ronald C. Crawford, for appellant.
Spencer Lawton, Jr., District Attorney, David T. Lock, John E. Morse, Jr., Assistant District Attorneys, for appellee.
SOGNIER, Judge.
Appellant was convicted in the State Court of Chatham County of operating a boat at night without proper lights, and of unlawful *532 shrimping in closed waters with a power drawn net.
1. Appellant contends the trial court erred by permitting Ranger D. E. Davis to remain in the courtroom during the testimony of all witnesses and then testify in rebuttal. No transcript was filed in the State Court of Chatham County and, thus, is not available to us on review. However, the parties stipulated in writing that at the beginning of the trial the rule of sequestration of witnesses was invoked. Pursuant to the district attorney's request, the court excepted Ranger D. E. Davis from the rule and allowed him to remain in the courtroom to assist the district attorney in the presentation of his case. Davis testified as the first State witness, remained in the courtroom during the presentation of evidence for the State and the defense, and was called as a rebuttal witness after the close of the evidence for appellant. Appellant's objection to Davis' testifying in rebuttal was overruled, and he contends this was error. This contention has been decided adversely to appellant in Wiseman v. State, 168 Ga. App. 749, 751 (5) (310 SE2d 295) (1983), where we held that enforcement of the rule of sequestration is vested in the discretion of the trial court, and absent an abuse of discretion the trial court's decision will not be reversed by this court. We find no abuse of discretion here. Further, in criminal cases, violation of the rule of sequestration by any witness, either for the defense or for the prosecution, goes to credibility rather than admissibility of the witness' testimony. Blanchard v. State, 247 Ga. 415, 417 (1) (276 SE2d 593) (1981).
2. Appellant contends the trial court erred by refusing to recharge the jury upon request that it was not unlawful per se to use a power drawn net in salt waters for commercial shrimping, but was only unlawful if such waters were closed to commercial shrimping by the Commissioner of Natural Resources. Since there was no transcript this court ordered the attorneys for the State and the appellant to seek to supplement the record, with the trial judge's approval, by including the trial judge's entire charge. By affidavit filed in this court on February 18, 1985 the attorneys and the trial judge stated they had insufficient recollection or records which would enable them to supplement the record, and neither the trial attorneys nor the trial judge could recollect the entire charge.
In the absence of a transcript, we cannot consider an enumeration of error based on this request to recharge the jury when we do not have the transcript containing the entire charge of the court before us. Brown v. State, 223 Ga. 540, 541 (2) (156 SE2d 454) (1967); Adams v. State, 142 Ga. App. 252, 255 (7) (235 SE2d 667) (1977): Tauber v. State, 168 Ga. App. 53 (308 SE2d 419) (1983). Thus, we affirm.
Judgment affirmed. Birdsong, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345897/ | 174 Ga. App. 521 (1985)
330 S.E.2d 447
THE STATE
v.
OSBORNE.
70192.
Court of Appeals of Georgia.
Decided April 9, 1985.
Bruce L. Udolf, District Attorney, Deborah S. Wilbanks, Assistant District Attorney, for appellant.
D. Thomas LeFevre, for appellee.
DEEN, Presiding Judge.
The appellee, Mitchell Lee Osborne, was arrested on August 3, 1984 and charged with child molestation. Upon his arrival at the Hall County Sheriff's Department, Osborne was interrogated by the sheriff and the Sheriff's wife for approximately 45 minutes, with only the last 3 minutes having been recorded. At the beginning of the interrogation, Osborne signed an "Acknowledgment of Waiver of Rights." The alleged incriminating statement made by Osborne during the recorded interrogation consisted of a series of questions propounded by the sheriff and the affirmative or negative responses of Osborne. Following a pretrial hearing, the trial court excluded this statement, on the basis that it was not given voluntarily and intelligently, and the state appeals.
At the hearing the sheriff's wife testified that she had read the waiver from to Osborne, and that Osborne had signed the waiver within 2 minutes. She admitted that she had not attempted to explain the Miranda rights to Osborne in simpler terms, but she had felt that he had understood everything.
A psychologist also testified at the hearing about the findings of her evaluation of Osborne. She had found Osborne to be mildly mentally retarded. He was alert, well-oriented, and possessed good common sense, but he was unable to comprehend complex language concepts. The psychologist diagnosed Osborne as a caretaker personality, i.e., one that responds quickly to disapproval and in a manner that will elicit approval. She doubted that Osborne had understood what took place during the interrogation.
Osborne also took the stand, and the trial court observed that he had difficulty answering all but the simplest of questions. Osborne acknowledged his signature on the waiver form, but he also stated that he cannot read, did not know what he had signed, and had signed the from only because the sheriff had wanted him to do so. When asked what it meant to waive one's rights, Osborne demonstrated by lifting his arm and waving at the trial court. At the hearing, Osborne claimed that he would not have talked with the sheriff or the sheriff's wife, had he known he could have had an attorney with him. Held:
The state has the burden of proving by a preponderance of the evidence that a confession or incriminating statement was given voluntarily. Jones v. State, 245 Ga. 592, 598 (266 SE2d 201) (1980). Unless clearly erroneous, the trial court's findings as to factual determinations and credibility relating to the admission of a confession will be accepted on appeal. Cofield v. State, 247 Ga. 98, 108 (274 SE2d 530) (1981); Gates v. State, 244 Ga. 587 (261 SE2d 349) (1979).
In this case, the trial court correctly noted that mental retardation, *522 lack of education, and illiteracy, standing alone, will not invalidate a waiver of a defendant's rights. Moses v. State, 245 Ga. 180, 186 (263 SE2d 916) (1980); Donaldson v. State, 249 Ga. 186, 189 (289 SE2d 242) (1982). However, considering the totality of the circumstances and the demeanor of the witnesses, the trial court concluded that the state had not shown by a preponderance of the evidence that Osborne's confused answers recorded at the end of the interrogation were voluntary and untainted by any suggestion during the unrecorded interrogation. Under the evidence adduced in this case, the trial court's finding was not clearly erroneous, and we are thus constrained to affirm the order suppressing Osborne's statement recorded during the interrogation on August 3, 1984.
Judgment affirmed. Pope and Beasley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1916110/ | 168 So. 2d 418 (1964)
Vermae SOIREZ et al., Plaintiffs and Appellants,
v.
GREAT AMERICAN INSURANCE COMPANY, Defendant and Appellee.
No. 1245.
Court of Appeal of Louisiana, Third Circuit.
October 27, 1964.
*419 Bush & Moresi, by Toxie L. Bush, Jr., Abbeville, for plaintiffs-appellants.
Davidson, Meaux, Onebane & Donohoe, by J. J., Davidson, Jr., Lafayette, for defendant-appellee.
Before CULPEPPER, SAVOY and HOOD, JJ.
HOOD, Judge.
This is an action instituted by Mrs. Vermae Soirez Duhon and by her husband, Joseph O. Duhon, Sr., arising out of a motor vehicle accident which occurred on January 1, 1962, involving an automobile owned and being driven by Mr. Duhon. The suit was instituted against Great American Insurance Company, the liability and medical payments insurer of Mr. Duhon. Mrs. Duhon was riding as a guest passenger in the automobile at the time the accident occurred, and she demands damages for personal injuries allegedly sustained by her as a result of that accident. Mr. Duhon, as head and master of the community, seeks to recover medical expenses alleged to have been incurred in connection with the treatment of his wife's injuries, and he also demands penalties and attorney's fees.
The suit was instituted on May 14, 1963, which was more than sixteen months after the date on which the accident occurred. Defendant filed an exception of prescription of one year to Mrs. Duhon's demands. After trial of this exception, judgment was rendered by the trial court on February 20, 1964, sustaining the exception of prescription and dismissing Mrs. Duhon's suit for damages, but reserving to Mr. Duhon the right to prosecute his claim for medical expenses. Mrs. Duhon has appealed from that portion of the judgment which dismisses her action for damages.
At the hearing which was held on the exception of prescription the defendant deposited the sum of $1,000.00 in the registry of the court, which deposit constituted a tender to Mr. Duhon as full settlement of his claim for medical payments. After trial on the merits of Mr. Duhon's demands for medical expenses and penalties, judgment was rendered by the trial court on April 20, 1964, directing the Clerk of Court to pay to Mr. Duhon the $1,000.00 which had been deposited in the registry of the court, but rejecting all of the other demands of Mr. Duhon and condemning him to pay all costs of the suit. Mr. Duhon has appealed from the portion of that judgment which rejects his demands for penalties and attorney's fees and which condemns him to pay the costs of this suit.
Plaintiffs contend primarily that the trial court erred in holding that Mrs. Duhon's claim for damages has been extinguished by prescription of one year. They correctly point out that a wife cannot maintain an action in tort against her husband as long as the marriage continues, and that prescription cannot run against a cause of action which has not accrued or while that cause of action cannot be exercised. See LSA-R.S. 9:291; and Saltalamacchia v. Strachan Shipping Corp., La.App. 4 Cir., 156 So. 2d 291. Plaintiffs argue that the defendant in this case, as the insurer, stands in the same position as does the insured, and that the defendant accordingly can urge no defense which is not available to Mr. Duhon. They contend that since the insured could not successfully urge a plea of prescription to his wife's claim for damages, then neither is such a plea or defense available to the defendant insurer.
Plaintiffs argue further that Mrs. Duhon's action against defendant is not one in tort, but that it is an action ex contractu, based on the contract of insurance entered into between the defendant and Mr. Duhon. They contend that there is no independent tort liability on the part of defendant toward Mrs. Duhon, that defendant's alleged liability arises solely from its contractual obligation to Mr. Duhon, that pursuant to the contract of insurance the defendant will continue to be obligated to pay the damages due Mrs. Duhon as long as she continues to have a cause of action against the insured under the policy, and that since her *420 cause of action against Mr. Duhon has not been extinguished by prescription she has a right to maintain a direct action against the insurer for the damages which she sustained.
Although there appears to be considerable logic in this argument, we think our jurisprudence has been settled to the effect that an action such as this is an action ex delicto, and that it is subject to prescription of one year as provided in LSA-R.C.C. Article 3536. In Reeves v. Globe Indemnity Company of New York, 185 La. 42, 168 So. 488, the plaintiff instituted a direct action for damages against the liability insurer of the driver of the automobile. The defendant insurer filed an exception of prescription of one year, which exception was maintained by the trial court. Our Supreme Court, although remanding the case for other reasons, held that the direct action filed by the injured third person against the liability insurer of the driver "is essentially and fundamentally a tort action," and that:
"This being an action ex delicto, it is clear under article 3536 of the Revised Civil Code that plaintiff's claim is prescribed in one year, unless it can be said that the prescription was interrupted by filing the original petition."
We agree with plaintiffs that although Mrs. Duhon may have a cause of action against her husband for the damages which she sustained, she does not have a right of action against him and thus she is prevented from maintaining a tort action against him. And, the well established general rule is that prescription cannot run against a cause of action which cannot be exercised.
In a case such as this, however, where the husband is covered by liability insurance, the wife may have a cause of action and a right of action against her husband's insurer for the damages which she sustained, although she cannot maintain an action against her husband for such damages. LSA-R.S. 22:655; Landrum v. United States Fidelity & Guaranty Company, La. App. 3 Cir., 151 So. 2d 701. In such a case, the wife is not prevented from exercising her cause of action against the insurer, and thus there is no reason why prescription should not accrue against such a claim.
Plaintiffs cite the case of Tucker v. Marquette Casualty Company, La.App. 1 Cir., 138 So. 2d 25 (cert. denied), as authority for the argument that the exception of prescription is not available to the defendant in the instant suit. In the Trucker case the plaintiff first obtained a judgment against the Louisiana Department of Highways for the damages which he sustained. He then instituted a separate action against the liability insurer of the Department of Highways to force that company to pay the claim under the policy which it had issued to the Department. The Department of Highways intervened, joining plaintiff and demanding that defendant pay the judgment. Thereafter, the Department of Highways paid the amount of the judgment to plaintiff and became subrogated under plaintiff's rights. Judgment then was rendered in favor of the Department of Highways (the insured) against Marquette Casualty Company (the insurer). Our Supreme Court, in concluding that the trial court had properly overruled the plea of prescription of one year filed by the defendant, held that this was not an action in tort, but was "an action on a contract of insurance which is prescribed by the prescription of ten years." The Tucker case, therefore, is readily distinguishable from the instant suit, in that here the plaintiff's tort claim has not been reduced to judgment and the action in the instant suit is not between the insured and the insurer.
We conclude that the trial court correctly held that Mrs. Duhon's claim for damages against the defendant insurer has been extinguished by the prescription of one year, as provided in LSA-R.C.C. Article 3536. The judgment of the trial court dismissing the suit as to Mrs. Duhon therefore must be affirmed.
The evidence shows that medical expenses in excess of $1,000.00 were incurred *421 by the community in connection with the treatment of the injuries which Mrs. Duhon sustained as a result of the accident. In the policy which was issued to Mr. Duhon, the defendant obligated itself to pay medical expenses, regardless of fault, in the maximum amount of $1,000.00 for each person who sustains bodily injury caused by the accident while occupying the insured automobile. Defendant concedes that it is indebted to Mr. Duhon for the sum of $1,000.00, and no question is raised as to that part of the trial court's judgment which ordered the clerk to pay that amount to Mr. Duhon from the deposit which was made in the registry of the court. The important issue presented here, however, is whether Mr. Duhon also is entitled to recover penalties and attorney's fees.
Plaintiff contends that the defendant has been arbitrary and capricious in failing to pay the maximum amount due under the policy as medical expenses, and that for that reason he is entitled to recover penalties and attorney's fees, as provided in LSA-R.S. 22:658. The defendant contends that it has always been ready and willing to pay the maximum amount due under the policy as medical expenses, but that it did not do so before suit was filed because Mr. Duhon refused to furnish defendant with a written proof of claim, as required by the policy, and that defendant had been informed by plaintiffs' counsel that plaintiffs would not accept payment of the medical expenses until the tort claim of Mrs. Duhon also was settled.
The trial judge concluded that the defendant had not been arbitrary, capricious or without probable cause in failing to pay the amount due under the policy for medical expenses, because the defendant insurer had been informed by plaintiffs' counsel that payment of the medical expenses would not be accepted by plaintiffs until there had been a settlement of the tort claim of Mrs. Duhon. The trial judge also found that the defendant had been willing from the outset to pay the obligation but had been prohibited from doing so by plaintiffs' counsel. In rejecting Mr. Duhon's demands for penalties and attorney's fees, the trial judge said:
"The evidence adduced shows that Counsel for plaintiff had advised the husband not to accept payment for medical expenses until the claim for personal injuries by the wife were settled.
* * * * * *
"The letters of November 29th and 30th of 1962 by plaintiff's counsel setting forth the medical bills and demanding payment must be considered in connection with settlement of the liability claim as it is admitted that plaintiff's counsel advised his client not to settle for the medical expenses until settlement could be made on the liability claim.
* * * * * *
"Furthermore, it is clear that the insurance company was willing from the outset to pay the obligation and in fact had tried to pay but was prohibited from doing so by plaintiffs' counsel.
* * * * * *
"Certainly under these circumstances the company cannot be held to have been `arbitrary, capricious or without probable cause' for not paying before this suit was filed and should not be assessed penalties."
We think the evidence supports the conclusions reached by the trial court that the insurer was advised by plaintiffs' counsel to the effect that payment of the medical expenses due by the defendant would not be accepted unless a settlement of the tort claim of Mrs. Duhon also was effected. Under those circumstances, and particularly since it appeared that the payment would not be accepted, we conclude that defendant was justified in failing to make that payment promptly. We conclude, as did the trial judge, that the defendant was not arbitrary, capricious or without probable cause in failing to pay the amount due as medical expenses prior to the institution of this suit. The trial court, therefore, correctly *422 rejected Mr. Duhon's demands for penalties and attorney's fees.
Finally, Mr. Duhon contends that the trial court erred in assessing all costs of the suit to him.
The law provides that an appellate court may tax the costs of the lower court against any party to the suit as in its judgment it may consider equitable. LSA-C.C.P. Article 2164.
The evidence shows that no formal tender of the amount which defendant admittedly owed as medical expenses was made before the suit was instituted. The tender which was made after the filing of this suit did not include the costs which had been incurred up to that time, and the record does not show that the defendant has ever tendered or offered to pay the court costs which plaintiff incurred prior to the time the tender was made. Although defendant was not arbitrary or capricious in failing to make a tender of the amount due, and thus it is not liable for penalties and attorney's fees, we think the defendant should be cast for the costs of court since the tender was not made before suit was filed and the tender which was made after the suit was instituted did not include the costs which had accrued up to that time.
We find no merit to defendant's argument it was under no obligation to pay the medical expenses until a written proof of claim on a form specified by the insurer had been furnished. The policy provides simply that "as soon as practicable the injured person or someone on his behalf shall give to the company written proof of claim, under oath if required, * * *." In this case the plaintiff did submit written statements of the medical and hospital bills which had been incurred in the treatment of Mrs. Duhon's injuries, and these statements were accepted by defendant as being the correct amount due for such expenses. There is nothing in the record to show that the company ever required that the written proof of claim be under oath. We think the statements which were furnished to the insurer constituted adequate written proof of claim.
For the reasons herein set out, the judgment of the trial court rendered on February 20, 1964, dismissing the demands of Mrs. Vermae Soirez Duhon is affirmed. The judgment of the trial court rendered on April 20, 1964, is amended to provide that the defendant, Great American Insurance Company, is condemned to pay all costs of this suit, and in all other respects the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellee.
Amended and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264328/ | 14 Cal.App.4th 1096 (1993)
18 Cal. Rptr.2d 487
COUNTY OF ALAMEDA et al., Plaintiffs and Respondents,
v.
STATE BOARD OF CONTROL et al., Defendants and Appellants.
Docket No. A055071.
Court of Appeals of California, First District, Division One.
April 1, 1993.
*1099 COUNSEL
Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Henry Ullerich, Acting Assistant Attorney General, Jose R. Guerrero and Thomas P. Reilly, Deputy Attorneys General, for Defendants and Appellants.
*1100 Kelvin H. Booty, Jr., County Counsel, and Lorenzo E. Chambliss, Deputy County Counsel, for Plaintiffs and Respondents.
OPINION
STEIN, J.
The State Board of Control and several of its members (hereinafter collectively referred to as the Board) appeal from a judgment compelling the Board to deem the cost of medical services provided to indigent crime victims at Highland General Hospital in the County of Alameda, a "pecuniary loss" as defined by Government Code section 13960, subdivision (d).
We will hold that neither the County of Alameda nor Don Perata, as a member of the board of supervisors and a county taxpayer, has standing to assert the claims of medically indigent crime victims for compensation from the Restitution Fund. We will further hold that the trial court erred in finding that medically indigent crime victims, who are provided medical services by the county hospital pursuant to Welfare and Institutions Code section 17000, have suffered a "pecuniary loss" within the meaning of Government Code sections 13959 and 13960.
FACTS
On June 1, 1989, the County of Alameda and Don Perata, chairman of the county board of supervisors (hereinafter collectively referred to as the County) filed this complaint seeking injunctive and declaratory relief against the Board. The Board initially demurred to the complaint on the ground that the County lacked standing to assert the indigent crime victims' claims for payment from the Restitution Fund.[1] The court overruled the demurrer, and on September 12, 1989, the Board filed its answer.
The underlying facts are not in dispute:
Highland General Hospital is a public hospital owned and operated by the County. Welfare and Institutions Code section 17000 imposes upon the County an obligation to provide medical care to the indigent. Highland General Hospital annually receives approximately $15 million from the State of California through the Medically Indigent Services Account to defray the cost of providing medical care to these indigent patients. (See Welf. & Inst. Code, §§ 16702 and 16703.)
*1101 When a patient is admitted to Highland General Hospital for treatment, the hospital staff typically makes a determination as to the patient's ability to pay. As the court explained in its statement of decision and order: "The first step in this process is to determine possible third-party payment sources, such as private health insurance, Medi-Cal, Medicare, Veterans' benefits, or some other `third-party recovery' source. If the patient has no such source of coverage, hospital staff proceed to assess the patient's ability to pay a share of cost according to County Medical Services Program (`CMSP') guidelines, focussing on the monthly income of the patient's household. For patients determined to be `indigent' under these guidelines, the Hospital's practice is to write off 100 percent of the hospital bill." Pursuant to Welfare and Institutions Code section 17403, the hospital has the right to assert future claims against these patients, if they subsequently acquire sufficient property to pay for the unpaid portion of the medical services they received and still meet their basic living expenses.
"If, however, the patient appears to be the victim of a crime, hospital staff do not attempt to assess the patient's monthly income or ability to pay. Instead, they view the [Restitution Fund] as a potential third-party recovery source and assist the patient in filing a claim for reimbursement...."
"The practice of [the Board] is to process these claims as `zero awards' under Title 2, California Code of Regulations, sections 649(e), 649.9(a)(5), 649.15 and 649.22." Pursuant to section 649.22 the Board processes a claim as a "zero award" "where the applicant fails to produce evidence of pecuniary loss." Processing a claim as a zero award does not constitute a denial of a claim. Instead, the Board makes an "initial determination of eligibility without reference to specific pecuniary loss." (Ibid.) "In the Board's view, the claims of indigent patients treated at county hospitals do not constitute `pecuniary losses' to the patients within the meaning of Government Code section 13959, since the County has an obligation under Welfare and Institutions code section 17000 et seq. to provide this medical care to indigent patients. Therefore, in the Board's view, these applications are `without verified pecuniary loss' within the meaning of California Code of Regulations, title 2, section 649.15. Alternatively, the Board views County CMSP funding as `collateral benefits' as defined in California Code of Regulations, title 2, section 649(j). Accordingly, the Board believes that, under the provisions of section 649.17, indigent patients' claims must be `zero awarded' until such time as the County makes a `share of cost' determination under its CMSP guidelines. The County has records of 185 *1102 claimants with claims totalling $903,941.21 whose claims have been zero awarded in this way."[2]
"In the case of private hospitals, the Board's policy is to pay the treating hospital directly on approved Victims of Crime Program applications," unless the county is employing the hospital as a means of meeting its Welfare and Institutions Code section 17000 obligation to provide medical services to indigent patients.
The trial court found, based on these undisputed facts, that "notwithstanding Welfare and Institutions Code section 17000, there is an obligation of the indigent patient to pay the County for medical services rendered which arises when the services are rendered. The obligation becomes due upon the subsequent acquisition of property by the patient. Welfare and Institutions Code section 17403 is clearly based on a preexisting debt which is the basis for the obligation to satisfy the debt from after-acquired property. For this reason, the court concludes that bills for medical treatment rendered to indigent patients at county hospitals constitute pecuniary losses to these patients within the meaning of Government Code section 13959."
Based on these findings, the court granted the County's motion for summary judgment and entered judgment for the County providing declaratory and injunctive relief.
I.
STANDING
By this action the County is seeking to compel the Board to pay the claims of indigent crime victims for restitution equal to the cost of medical services *1103 provided by the county hospital pursuant to Welfare and Institutions Code section 17000. It is undisputed that none of the crime victims whose claims have been "zero awarded" are parties to this action. (1a) The threshold question in this case, therefore, is whether the County of Alameda, or Don Perata in his capacity as a county taxpayer, has standing to assert the claims of these crime victims for compensation.
California Code of Civil Procedure section 367 provides that "[e]very action must be prosecuted in the name of the real party in interest." (2a) The real party in interest is one "having an actual and substantial interest in the subject matter of the action and who would be benefitted or injured by the judgment in the action." (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal. App.3d 220, 225 [107 Cal. Rptr. 123, 69 A.L.R.3d 1142].) "[A]n action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law ... will not be entertained; and the same is true of a suit the sole object of which is to settle rights of third persons who are not parties." (Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 316 [5 P.2d 585].) (1b) We shall conclude that neither the County of Alameda nor Don Perata has standing to assert the claims of crime victims for reimbursement from the Restitution Fund, because the substantive right to make a claim for restitution belongs only to a crime victim, not to a county hospital which has provided medical services pursuant to its independent obligation under Welfare and Institutions Code section 17000 to provide medical care for the indigent, nor to a county taxpayer, such as Don Perata.
(2b) "A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law." (Killian v. Millard (1991) 228 Cal. App.3d 1601, 1605 [279 Cal. Rptr. 877].) (1c) The Victims of Violent Crime Act (Gov. Code, § 13959 et seq.) establishes "the procedure by which crime victims may obtain restitution through compensation from the Restitution Fund." (Gov. Code, § 13959, italics added.) Government Code Section 13960 defines a "victim" as "[a] person who sustains injury or death as a direct result of a crime," their dependents and, in the event of death, those who legally assume the obligation or voluntarily pay the victim's medical and burial expenses. The term "victim" does not include those who provide medical services to crime victims. In fact, the regulations adopted by the Board specifically provide that third party health care providers may not file claims for indemnification with the Board. (Cal. Code Regs., tit. 2, § 649.2.) Moreover, payments from the Restitution Fund may not be made directly to a health care provider without notice to the victim of his or her right to object to such direct payment. (Cal. Code Regs., tit. 2, § 649.18.)
*1104 Consistent with this strict definition of "crime victim," the courts, in the slightly different context of determining the validity of restitution ordered pursuant to Government Code section 13967, subdivision (c), have held that third parties, such as insurance companies and county agencies, who have suffered only indirect losses are not crime victims. (See, e.g., People v. Blankenship (1989) 213 Cal. App.3d 992 [262 Cal. Rptr. 141]; People v. Miller (1989) 216 Cal. App.3d 758 [265 Cal. Rptr. 77].)[3] The applicable statutory and regulatory scheme simply does not recognize the County of Alameda, nor Don Perata as a county taxpayer, as "the person possessing the right sued upon," because neither falls within the definition of a victim of crime. (Killian v. Millard, supra, 228 Cal. App.3d at p. 1605.) Indeed, when enacting the Victims of Violent Crime Act, the Legislature established an administrative scheme which includes a full administrative hearing and judicial review by writ of a victim's claim for restitution, which has been entirely circumvented in this case. (See Gov. Code, §§ 13961-13965; Cal. Code Regs., tit. 2, §§ 649.20, 649.21.) Government Code section 13959 specifically provides that "[t]his article shall govern the procedure by which crime victims may obtain restitution through compensation from the Restitution Fund." (Italics added.) The Board does not contend that there has been a failure to exhaust administrative remedies, apparently because the County has no right to file an administrative claim. Nothing in this administrative scheme, however, suggests that anyone other than a victim of crime has the substantive right of action.
We therefore conclude that both the County of Alameda and Don Perata lack standing to assert the claims of victims of crime from the Restitution Fund.[4]
(2c) Plaintiffs who attempt to assert or enforce the substantive rights of others are denied standing because they may be poor advocates for those *1105 rights, or they may have a conflict of interest with the nonparties whose rights are being asserted. These same principles underlie the rules requiring that indispensable parties be joined. (See, e.g., 13 Wright et al., Federal Practice and Procedure (2d ed. 1984) § 3531.9 at pp. 552-553, 567.) (3a) The Board argues that the crime victims whose claims for restitution have been "zero awarded" are indispensable parties. We agree. (4) (See fn. 5.), (5) A person is an indispensable party if his or her rights must necessarily be affected by the judgment. (Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 262 [73 P.2d 1163]; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal. App.3d 495, 501 [157 Cal. Rptr. 190].)[5]
(3b) The County contends that because its interest is identical to that of the absent victims of crime, there is no risk of a collateral attack on the judgment by them. For the same reason the County contends the judgment does not damage any interest the absent crime victims may have that would not have been adequately litigated by the County. The County therefore concludes that it is possible to render an effective judgment in the absence of the indigent crime victims. To the contrary, a substantial conflict of interest does exist in this case: Government Code section 13965 limits the total amount of restitution available to each victim to $23,000 unless federal funding is available, in which case the limit rises to $46,000. If the County were to prevail in its efforts to have its cost of providing medical care to indigent victims reimbursed through the Restitution Fund, the limit of each victim's eligibility for restitution could be quickly exhausted.[6] Moreover, in order to prevail on the merits, the County must establish that the indigents whose claims for restitution have been zero awarded are currently indebted to the County for medical services they have received. Obviously, the indigent crime victims have no interest in establishing that they have incurred a debt to the County, and this issue should not be decided against them in their absence.
*1106 (1d) The stated purpose of the Restitution Fund is to assist victims of crime who suffer losses as a direct result of a crime, not to ameliorate the financial plight of the County in bearing the cost of providing medical care to the indigent. (Gov. Code, § 13959.) Neither the County of Alameda nor Don Perata has standing to seek injunctive or declaratory relief compelling the Board to process claims for restitution in any particular manner because they are not "crime victims" and have no substantive claim for restitution. (3c) Moreover, we hold that the indigent crime victims whose claims have been zero awarded are indispensable parties.
II.
MERITS[7]
(6a) The dispositive question in this case is whether an indigent victim of crime who is treated at the county hospital, or a victim who is eligible for assistance through the CMSP, has suffered a "pecuniary loss" within the meaning of Government Code section 13960. That section defines "pecuniary loss" as "any expenses for which the victim has not [been] and will not be reimbursed from any other source." (Italics added.) The Board interprets this section and the accompanying regulations to mean that an indigent crime victim treated at the County hospital has not suffered any "pecuniary loss" because the medical care received is a form of public assistance that the County has an independent duty to provide based on Welfare and Institutions Code section 17000, and because the CMSP is a collateral source of benefits.
(7) The Board's interpretation of statutes it is charged with enforcing and interpreting "is entitled to great weight and should be followed by a court unless clearly erroneous." (Webster v. State Bd. of Control (1987) 197 Cal. App.3d 29, 36 [242 Cal. Rptr. 685].) (6b) In order to assess the validity of the Board's interpretation of Government Code section 13960, subdivision (d), it is necessary briefly to: (1) explain the limited purpose of the restitution provided under the Victims of Violent Crime Act and (2) explain the nature and scope of the County's duty to provide medical care for the indigent pursuant to Welfare and Institutions Code section 17000.
*1107 (8) A review of the legislative scheme and the cases interpreting the term "pecuniary loss" as used in Government Code section 13960, subdivision (d), discloses that the legislative intent was not "to compensate all victims of crime, but only to compensate those who had actually incurred specific financial losses." (Fierro v. State Bd. of Control (1987) 191 Cal. App.3d 735, 740 [236 Cal. Rptr. 516].) Recovery from the fund is limited to those victims who can prove that they have suffered an actual out-of-pocket loss for which they will not be compensated from any other source. The fund is intended to be the source of last resort for victims of crime, and every other collateral source of compensation must be exhausted before a victim of crime can be said to have suffered a "pecuniary loss." (See, e.g., Burnsed v. State Bd. of Control (1987) 189 Cal. App.3d 213, 217 [234 Cal. Rptr. 316] [court held that the term "any other source" as used in Gov. Code, § 13960, subd. (d), means "every other source," and that the Legislature intended that every other source of reimbursement, including workers' compensation benefits, must be used before resort to the restitution fund]; Webster v. State Bd. of Control, supra, 197 Cal. App.3d at p. 38 [victim failed to prove "pecuniary loss" where losses already reimbursed by workers' compensation and Social Security benefits].) In effect, the fund operates as a kind of safety net for victims of crime who suffer losses for which there is no other public or private source of compensation.
Consistent with this legislative intent, the Board concludes that a victim suffers a pecuniary loss when he or she (1) has an "out of pocket loss" because he or she has paid or is legally responsible for paying an expense incurred as a direct result of a crime; and (2) there are no other "collateral benefits" available to the victim. (Cal. Code Regs., tit. 2, §§ 649.9, subd. (a)(5), and 649, subd. (j).) The term "collateral benefits" is broadly defined as including, but not limited to: "(1) All forms of private and public insurance benefits paid to or on behalf of the insured victim or his or her survivors, including medical, disability, wage loss, liability and casualty insurance including vehicle, commercial, and residential insurance. [¶] (2) all forms of public and private assistance paid to, or on behalf of, the victim or his or her survivors, including Medi-Cal, social security, state disability insurance, Worker's Compensation and Medicare. [¶] (3) Any restitution paid by the criminal perpetrator directly to the victim or his or her survivors, whether collected by public agencies and paid over to the recipient or collected directly by the recipient." (Cal. Code Regs., tit. 2, § 649, subd. (j).)
(6c) In accordance with these regulations, the Board reasons that indigent crime victims treated at the county hospital have suffered no documented pecuniary loss because public assistance is available as a "collateral source" to these victims based either upon the duty of the County, pursuant *1108 to Welfare and Institutions Code section 17000, to provide medical care for the indigent, or the availability of the county medical services program through which the State of California assists the counties in meeting their obligations to provide medical services to the indigent. (See Cooke v. Superior Court (1989) 213 Cal. App.3d 401, 411 [261 Cal. Rptr. 706].)
Welfare and Institutions Code section 17000 imposes a mandatory duty upon all counties to provide "medically necessary care," not just emergency care. (Bay General Community Hospital v. County of San Diego (1984) 156 Cal. App.3d 944, 957 [203 Cal. Rptr. 184].) The County must fulfill this obligation without regard to its fiscal plight. (See, e.g., Robbins v. Superior Court (1985) 38 Cal.3d 199, 217 [211 Cal. Rptr. 398, 695 P.2d 695]; Mooney v. Pickett (1971) 4 Cal.3d 669, 680 [94 Cal. Rptr. 279, 483 P.2d 1231]; Nelson v. Board of Supervisors (1987) 190 Cal. App.3d 25, 29 [235 Cal. Rptr. 305]; City and County of San Francisco v. Superior Court (1976) 57 Cal. App.3d 44, 46-47 [128 Cal. Rptr. 712].) Moreover, pursuant to Welfare and Institutions Code section 16704.1, "[n]o fee or charge shall be required of any person before a county renders medically necessary services to persons entitled to services ... under section 17000."[8] Therefore, on its face, an indigent who receives medically necessary care at a county hospital is the recipient of "public assistance" pursuant to Welfare and Institutions Code section 17000 and, therefore, has not suffered a pecuniary loss within the meaning of Government Code section 13960.
The trial court, nonetheless, found, based on Welfare and Institutions Code section 17403, that the indigent patient does suffer a "pecuniary loss" because he or she becomes indebted to the County at the time the services are provided. Welfare and Institutions Code section 17403 provides: "If a person for the support of whom public moneys have been expended acquires property, the county shall have a claim against him to the amount of a reasonable charge for moneys so expended...." (Italics added.) The cases interpreting section 17403 have held that the right to reimbursement under this section does not arise unless and until the recipient has acquired sufficient property, after the receipt of assistance, such that he or she can support self and family, and still reimburse the county.
In County of San Diego v. Muniz (1978) 22 Cal.3d 29 [148 Cal. Rptr. 584, 583 P.2d 109], the court addressed the question whether the county, pursuant to Welfare and Institutions Code section 17403, had a claim for reimbursement against the wages of a former recipient of general assistance based *1109 solely on the allegation that he had been gainfully employed for one year. The primary issue before the court was whether wages were a type of "property" within the meaning of section 17403. However, in the course of its analysis the court also explained the limited scope of the county's potential reimbursement under that section: "At common law, in the absence of fraud in procuring relief, a recipient was under no obligation to repay the government agency disbursing the charity. The recovery provision in section 17403 for general assistance payments constitutes a statutory change to this long standing common law rule, and defines the extent of the County's authority to enforce payment. The legislative history of section 17403 itself, however, seems inconclusive as to the scope of the legislative change intended. The provision appears to relate originally to the Poor Law of 1901, providing that `... [i]n case such [poor, indigent, incompetent, or incapacitated] person shall be or shall thereafter become the owner of property real, person, or mixed, ... the district attorney ... [shall] cause the ... support ... of [the] person to be made out of such property....' This language emerges subsequently in section 17403 as the requirement that a later acquisition of property may form the basis for a county's claim for reimbursement." (22 Cal.3d at p. 33, citations omitted.) The court ultimately concluded that "`property' in section 17403 does not include wages per se, but only includes any surplus retained by the recipient after meeting the support needs of himself and his family. Until that level is reached, the County's claim does not arise." (Id. at p. 37, italics added, fns. omitted.) Following Muniz, the court in Reyes v. Board of Supervisors (1987) 196 Cal. App.3d 1263, 1273, footnote 8 [242 Cal. Rptr. 339], described San Diego County's attempt to characterize general relief benefits as debts to the county as "doubtful ... [S]ection 17403 provides the County with a claim against one [] whom the County supported with public funds only if the former recipient has later acquired property in excess of personal and familial support needs." (Italics added; see, also, Collins v. Woods (1984) 158 Cal. App.3d 439, 445 [204 Cal. Rptr. 650] [court described Muniz as imposing a condition precedent on a county's claim for reimbursement].)
Thus, an indigent who receives medical services at a county hospital simply has no present legal obligation to repay the county. Any obligation to reimburse does not arise unless and until the indigent subsequently acquires property within the meaning of Welfare and Institutions Code section 17403. No evidence has been offered by the County that any of the crime victims whose claims were zero awarded have acquired property within the meaning of section 17403, nor does the County assert any present intention to initiate *1110 any action against them.[9] These victims who have received medical care at the county hospital pursuant to Welfare and Institutions Code section 17000 suffer no "pecuniary loss" because they, like the victim who receives Medi-Cal, workers' compensation or Social Security benefits, have a "collateral source" for payment of the medical care, i.e., the provision of such care by the County pursuant to section 17000.
The County insists that this interpretation of its duty under Welfare and Institutions Code section 17000 discriminates unfairly against public hospitals because the Board considers the medical bills for services provided to an indigent treated at a private hospital that does not contract with the County to provide medical services pursuant to section 17000, as a "pecuniary loss," and pays them on behalf of the victim. The premise of the County's argument is that the duty of private hospitals to provide medical care to indigents imposed by Health and Safety Code section 1317[10] is identical to the County's duty. The critical difference, however, is that although a private hospital must render emergency services "without first questioning the patient or any other person as to his or her ability to pay therefor ... the patient or his or her legally responsible relative or guardian shall execute an agreement to pay therefor or otherwise supply insurance or credit information promptly after the services are rendered." (Health & Saf. Code, § 1317, subd. (d), italics added.) Thus, a private hospital has a more limited duty to provide only "emergency care" and is not restricted, except for the application of general laws applicable to all creditors protecting certain property of debtors from execution, in its legal right thereafter to collect the bill for services rendered.
We conclude that the trial court erred in finding, based on Welfare and Institutions Code section 17403, that indigent crime victims incur a debt to the County when they receive medical care as required by Welfare and *1111 Institutions Code section 17000. The Board correctly asserts that victims of crime who are also medically indigent and receive medical care at either a county hospital or a private hospital that has contracted with the county to provide medical care to the indigent, are the recipients of public assistance, which is in effect a collateral source of payment. Therefore, these victims of crime have not suffered an actual pecuniary loss.
This interpretation of Government Code section 13960 is consistent with legislative intent that the Restitution Fund be a source of last resort for compensation to a crime victim for actual pecuniary loss. Absent the existence of the Restitution Fund, the County would nonetheless have an independent duty pursuant to Welfare and Institutions Code section 17000 to provide medically necessary care to indigents. Welfare and Institutions Code section 17403 does not create a legal obligation for the indigent to reimburse the County for the cost of providing that care unless and until the indigent subsequently acquires sufficient property to provide support for self and family and still have a surplus from which the County could be reimbursed.
If the County were to prevail in this action, the Restitution Fund would be converted from its intended role as a safety net for victims of crime who have suffered an actual pecuniary loss into an alternate source of funding for the County to help defray the cost of caring for medically indigent adults. Although we sympathize with the fiscal plight of the County, we are satisfied that the Restitution Fund was established for the purpose of compensating victims of crime for their actual losses incurred as the result of a crime, not as a source of defraying the County's cost of performing its duty to care for the indigent pursuant to section 17000. Absent a legislative amendment to the Victims of Violent Crime Act expressing a contrary intent, we shall uphold the Board's procedure for processing the claim of indigent crime victims treated at the county hospital or by a private hospital contracting with the County to provide medical care pursuant to Welfare and Institutions Code section 17000 as consistent with the intent of the Legislature.
CONCLUSION
The judgment is reversed. Costs are awarded to appellant.
Strankman, P.J., and Dossee, J., concurred.
A petition for a rehearing was denied May 3, 1993, and the opinion was modified to read as printed above. Respondents' petition for review by the Supreme Court was denied June 24, 1993.
NOTES
[1] The victims and the court below referred to the Restitution Fund as the "Victims of Crime Reimbursement Fund." We prefer to use the shorter statutory name, which is simply the "Restitution Fund." (Gov. Code, § 13960.1.)
[2] The failure to assess the patient's ability to pay and to identify any other possible sources of payment is yet another reason why the Board "zero awards" these claims. Because the hospital staff does not follow its standard procedure in assessing a patient's ability to pay when the patient appears to be a victim of violent crime, it is not known how many of the victims whose claims have been "zero awarded" by the Board are in fact indigent, nor is it known whether any of these crime victims have any other source for payment of the claims. These applications therefore do not include essential information that the Board requires in determining whether the victim has a verified "pecuniary loss." The parties, however, assume, and so shall we, that the judgment is concerned only with the manner in which the claims of the medically indigent or those who are eligible for CMSP funding are processed by the Board. The parties do not dispute that any victim of crime who is not indigent or CMSP eligible is eligible for restitution for any medical bills that are not paid for by any other collateral source such as insurance, or Medi-Cal. A victim who is able to pay a "share of the cost" under the CMSP also may supplement his or her claim for restitution in an amount equal to the share of the cost, once the hospital makes a "share of the cost" determination under its CMSP guidelines.
[3] We cite Miller for the proposition that a person who suffers only an indirect loss is not a "crime victim." The separate issue of whether a public entity is a "person" entitled to restitution under Government Code section 13967 is pending before the Supreme Court in People v. Gregg (1992), reprinted at 9 Cal. App.4th 814 [4 Cal. Rptr.2d 720] to permit tracking pending review. Our decision that County lacks standing because it is not a crime victim is not based on its status as a public entity, but rather on the indirect nature of the loss it has incurred.
[4] The Board contends that our Supreme Court's recent decision in Kinlaw v. State of California (1991) 54 Cal.3d 326, 336 [285 Cal. Rptr. 66, 814 P.2d 1308], is dispositive on the issue of standing. To the extent that the Kinlaw court implicitly relied on the rule that third parties should not have standing to assert the rights of the person with the substantive right of action, and that taxpayer standing pursuant to Code of Civil Procedure section 526a did not exist, it is illustrative of the principles we have applied in finding that the County of Alameda and Don Perata lack standing. However, the decision in Kinlaw did not rely on general principles of standing. Rather, it relied primarily upon the ground that the Legislature had established an administrative scheme for enforcement of the rights of counties, which expressly stated that it was the "`sole and exclusive procedure by which a local agency or school district may claim reimbursement.'" (Kinlaw, supra, at p. 333, quoting Gov. Code, § 17552.)
[5] The contention that indispensable parties were not joined may be raised at any time. (See, e.g., Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal. App.3d 201, 214 [137 Cal. Rptr. 118].) Where, as here, the issue is raised for the first time on appeal, "the only justification for invoking the rule would be that the trial court was unable to render an effective judgment between the parties before it." (4 Witkin, Cal. Procedure (3d ed. 1985) § 168(c).)
[6] On a larger scale, a basic conflict exists between the claims of the County and all victims of crime who are eligible for restitution: If the County of Alameda were to prevail, then undoubtedly every county would make similar claims against the fund for reimbursement of the cost of providing medical care to the subclass of indigents who happen to have been crime victims, and the fund would be quickly depleted. The fund is currently operating with a deficit and the claims the County of Alameda is attempting to assert would consume approximately 8 percent of the total assets of the fund.
[7] Although our conclusion that neither the County of Alameda nor Don Perata has standing to compel the Board to stop the practice of "zero awarding" the claims of indigent crime victims, who were treated at the county hospital, is sufficient ground for reversal of the judgment, we shall nonetheless exercise our discretion to reach the merits of the lawsuit. The issue has been fully litigated and briefed and a determination of the legal issue raised will serve the interests of judicial economy in the event that, for any reason, our holding on the issue of standing is overturned. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 454 [279 Cal. Rptr. 834, 807 P.2d 1063]; see also Madera Community Hospital v. County of Madera (1984) 155 Cal. App.3d 136, 149 [201 Cal. Rptr. 768].)
[8] Welfare and Institutions Code section 14059.5 defines a service as "medically necessary" when it is "reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain."
[9] In opposition to the County's motion for summary judgment, the Board pointed out that the effect of "zero awarding" the claims of indigent crime victims does not preclude a later award upon submission of proof of an actual pecuniary loss. "If the Board subsequently receives `fully verified evidence of pecuniary loss by the victim' and determines that `no other source of benefits or assistance is available to the victim to compensate for this loss,' it can then authorize a monetary award ... Thus, in the unlikely event that one of Highland Hospital's indigent patients actually did acquire property sufficient to permit Alameda County to assert a claim against him under Welfare and Institutions Code section 17403, the patient could then seek reimbursement from the Restitution Fund to compensate for this expense."
[10] Health and Safety Code section 1317, subdivision (a) states: "Emergency services and care shall be provided to any person requesting the services or care ... for any condition in which the person is in danger of loss of life, or serious injury or illness, at any health facility licensed under this chapter that maintains and operates an emergency department to provide emergency services to the public when the health facility has appropriate facilities and qualified personnel available to provide the services or care." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345913/ | 330 S.E.2d 649 (1985)
Malcolm M. LOWDER, Mark T. Lowder and Dean A. Lowder, Plaintiffs,
v.
ALL STAR MILLS, INC., Lowder Farms, Inc., Carolina Feed Mills Inc., All Star Foods, Inc., All Star Hatcheries, Inc., All Star Industries, Inc., Tanglewood Farms, Inc., Consolidated Industries, Inc., Airglide, Inc., and W. Horace Lowder, Defendants, and
Cynthia E. Lowder Peck, Michael W. Lowder, Douglas E. Lowder, Lois L. Hudson, Individually and as Guardian Ad Litem for Steve H. Hudson, Bruce E. Hudson, Billy J. Hudson, Ellen H. Ballard, Jennell H. Ratterree, David P. Lowder, Judith R. Lowder Harrell, Emily P. Lowder, Cornelius and Myron P. Lowder, Intervening Defendants.
No. 8420SC993.
Court of Appeals of North Carolina.
June 18, 1985.
*651 Moore, Van Allen, Allen & Thigpen by Jeffrey J. Davis and Randel E. Phillips, Charlotte, for plaintiffs.
Boyce, Mitchell, Burns & Smith, P.A. by Lacy M. Presnell, III, Raleigh, for defendants.
Hopkins, Hopkins & Tucker by William C. Tucker, Albemarle, for intervening defendants.
JOHNSON, Judge.
I
All Star Mills, Inc. was formed in 1934 as Southern Flour Mills, Inc. by ancestors of the current individual parties. It engaged primarily in the business of flour and animal feed production and also operated a small egg packing facility. In 1955, the name of the corporation was changed to its current name, All Star Mills, Inc. The stock of All Star Mills, Inc. is owned by the parties as follows:
28.7% (505 shares) Plaintiffs Malcolm Lowder and his two sons, Mark and Dean
29.8% (523 shares) Defendant W. Horace Lowder, his wife and children
27.1% (477 shares) Intervening defendant Lois Hudson, her husband and children
11.9% (210 shares) Intervening defendant David P. Lowder
*652 On 9 November 1950, Lowder Farms was incorporated to engage in the production of eggs, which it sold to Mills for resale. Its stock is owned by the parties as follows:
31.8% (500 shares) All Star Mills, Inc.
12.1% (190 shares) Plaintiff Malcolm Lowder
12.1% (190 shares) Defendant Horace Lowder
12.1% (190 shares) Intervening defendant Lois Hudson
18.4% (290 shares) Intervening defendant David Lowder and his family
All Star Hatcheries, originally called All Star Mills, Hatchery Division, Inc., was incorporated 1 June 1959 at the impetus of defendant Horace Lowder to engage in the business of hatching eggs. Hatcheries' stock is owned 50% by defendant Horace Lowder and 50% by defendant Horace Lowder's wife.
In 1961, a decision was made to have Mills transfer its egg production business to All Star Foods, Inc. (Foods), which had been incorporated in 1959 to engage in the canning of chickens. At that time Horace Lowder owned all of Foods' stock. When egg production was transferred to Foods, additional stock was issued to Hatcheries and Mills, causing Hatcheries to own 49%, Mills to own 49% and Horace Lowder to own 2%, of Foods' stock. Because Horace Lowder and his wife owned Hatcheries, Horace Lowder effectively owned 51% of Foods' stock.
Shortly after the formation of Hatcheries, Horace Lowder became interested in purchasing approximately 15,000 acres of land in Hyde County, which he desired to purchase for Hatcheries. His father, who was instrumental in the formation of Mills, however, insisted that the land be purchased by Foods. All Star Industries, Inc. (Industries), which had been formed in 1961 to assist the other companies with financing, was called upon to refinance an existing debt secured by a deed of trust on the Hyde County land. Horace Lowder owns 100% of the stock of Industries.
Also, early in the 1960's, Horace Lowder became interested in purchasing a farm in Montgomery County to build poultry houses for breeders to produce eggs for hatching. Horace wanted to purchase the farm for Hatcheries, but his father, W.A. Lowder, wanted the farm to be purchased by his three children. For this purpose, W.A. Lowder formed Consolidated Industries (Consolidated) and sold thirds of stock in this corporation to each of his three children: plaintiff Malcolm Lowder, defendant Horace Lowder and intervening defendant Lois Hudson. Consolidated leased the farm to Hatcheries, which built poultry houses and placed cattle on the farm.
As noted above, Mills was founded by the fathers, brothers or grandfathers of the individual parties. From the mid-1930's to his death in 1970, W.A. Lowder primarily managed Mills. Horace Lowder began to work for Mills in 1951. By the late 1950's, Horace began to exert more influence over the management of the corporations. As early as 1953, Horace Lowder signed Lowder Farms income tax returns. Upon the death of his father in 1970, Horace Lowder assumed complete control over the management of the companies.
In the early 1960's, the Internal Revenue Service (IRS) began investigating the tax affairs of Mills and Farms. As a result of these investigations, Horace Lowder was ultimately convicted of income tax violations in 1973. Horace Lowder represented the companies without counsel at these hearings. After his appeals were exhausted, Horace Lowder was imprisoned in 1975 for one year. Just before his incarceration, Horace Lowder decided to discontinue the feed production business of Mills and transfer it to Foods, which leased Mills' facilities. He also decided to limit the feed production to certain customers, including Farms and Hatcheries. He informed Mr. David Lowder, Mrs. Lois Hudson, and Mr. Malcolm Lowder of these decisions, and they acquiesced in them.
Prior to his death, W.A. Lowder had told Malcolm that, upon his death, he wanted Malcolm to move his office from the egg production facilities back to the main office *653 at the mill and to assist Horace in the management of the companies. Malcolm attempted to move to the mill office after his father's death, but Horace turned him away, saying Malcolm was not needed there and that he should return to the egg plant at Foods. Malcolm returned to the egg plant.
Prior to the time Horace Lowder went to prison in 1975, Malcolm Lowder had made no inquiry as to the ownership of the several companies or their financial status or made no demand or request for dividends or financial statements. No dividends had been distributed in any of these companies since the late 1950's. No shareholders' meetings had been held at these companies since the late 1950's or early 1960's.
In 1975, while reviewing documents related with Horace's criminal appeal, Malcolm learned for the first time of the nature and extent of his brother's ownership of the various companies. He learned that Horace and his wife not only owned all of the stock of Hatcheries, but that Horace owned all of the stock of Industries. He also learned that Foods was not a wholly owned subsidiary of Mills, as he had thought, but was owned 49% by Mills, and 51% by Horace, directly or through Hatcheries.
In 1978, after Horace had been released from prison, the IRS renewed its efforts to collect taxes from the companies. Horace again appeared before the Tax Court and attempted to represent the companies without legal representation. Malcolm attended these hearings and learned new information. Malcolm thereafter in that same year made demand on Horace, pursuant to G.S. 55-38, to inspect the books and records of Mills, Farms, and Consolidated. In response to this demand, Horace gave Malcolm income statements and balance sheets for the previous ten years, but failed to furnish plaintiff complete access to the books and records of the companies.
Three days after Malcolm made demand to inspect the books and records, defendant Horace Lowder issued to himself 1,435 shares of Mills' treasury stock and 460 shares of Farms' treasury stock. By virtue of these transactions, Horace Lowder attempted to increase his share of All Star Mills from 29.8% to 61.3% and of Lowder Farms from 12.1% to 32%.
As a result of these actions, plaintiff filed this lawsuit in January 1979. Immediately upon the filing of this action, Horace fired Malcolm from his employment.
II
The first issue we address is the statute of limitations issue. The availability of the statute of limitations defense in shareholder derivative actions is dependent upon the nature of the claim being asserted. R. Robinson, North Carolina Corporation Law and Practice, sec. 14-11 (3d ed. 1983). The present action was tried as one to impose a constructive trust on corporate assets arising out of a breach of fiduciary duty. Despite defendants' arguments to the contrary, it has repeatedly been held that a ten year statute of limitations applies to such actions. See Cline v. Cline, 297 N.C. 336, 255 S.E.2d 399 (1979); Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708 (1965); Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223 (1949); Speck v. N.C. Dairy Foundation, Inc., 64 N.C.App. 419, 307 S.E.2d 785 (1983), reversed on other grounds, 311 N.C. 679, 319 S.E.2d 139 (1984). The trial court therefore properly instructed the jury that a ten year statute of limitations applied to this action. In such actions, the statute of limitations begins to run "from the time the trustee disavows the trust and knowledge of his disavowal is brought home to the cestui que trust." Cline v. Cline, supra at 348, 255 S.E.2d at 407. Judge McKinnon's instruction to the jury properly applied this principle. It is undisputed that Horace Lowder knew the true facts regarding the ownership of the various companies no later than 1975. There is some question as to whether plaintiffs knew, or should have known, the true facts before then. In any event, the question was for the jury, and defendants' motions for a directed verdict, for judgment not withstanding *654 the verdict, and for a new trial were properly denied.
Defendants' contend that the court erred in its instructions by failing to instruct the jury that the statute of limitations began to run when the fraud should have been discovered by any officer or director with adverse interests to Horace Lowder and by instructing the jury that the statute of limitations was tolled when Horace took complete control of the corporations. Defendants, however, did not object to these instructions at trial. They are therefore barred from raising them on appeal. Rule 10(b)(2), Rules of Appellate Procedure; Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984); Durham v. Quincy Mut. Fire Ins. Co., 311 N.C. 361, 317 S.E.2d 372 (1984).
For the same reasons, we reject defendants' contention that the trial court committed prejudicial error by instructing the jury that plaintiffs were "estopped" from bringing this action more than ten years after they knew, or should have known, the true facts. Not only did the defendants not object, they specifically requested the instruction given. They cannot now claim error. Overton v. Overton, 260 N.C. 139, 132 S.E.2d 349 (1963); Kim v. Professional Business Brokers, 74 N.C.App. 48, 328 S.E.2d 296 (1985).
III
The next issue is whether the evidence was sufficient to support a verdict that Horace Lowder, as an officer or director of Mills, usurped or misappropriated a corporate opportunity of Mills through the formation and operation of Foods, Hatcheries and Industries. The law in North Carolina regarding the usurpation of corporate opportunities is set forth in Meiselman v. Meiselman, 309 N.C. 279, 307 S.E.2d 551 (1983): A transaction engaged in by a corporate fiduciary on his behalf is not void or voidable if the corporate fiduciary can prove that the transaction was "just and reasonable" to the corporation because it was not an opportunity which the corporation would have wanted. In determining whether a corporate fiduciary has usurped a corporate opportunity, the facts of the particular case must be analyzed to determine whether the opportunity is functionally related to the corporation's business and whether the corporation has an interest or expectancy in the opportunity. In making this determination, several factors may be considered:
1) the ability, financial or otherwise, of the corporation to take advantage of the opportunity; 2) whether the corporation engaged in prior negotiations for the opportunity; 3) whether the corporate director or officer was made aware of the opportunity by virtue of his or her fiduciary position; 4) whether the existence of the opportunity was disclosed to the corporation; 5) whether the corporation rejected the opportunity; and 6) whether the corporate facilities were used to acquire the opportunity.
Id., at 310, 307 S.E.2d at 569.
Defendants concede Mills had the financial ability to take advantage of the opportunities. Mills, of course, was engaging in the businesses which were diverted to companies which Horace Lowder owned or controlled, and corporate facilities of Mills were used in the formation and operation of the various companies. For example, Mills built the building used by Hatcheries and Foods. Hatcheries and Foods also used Mills' employees and Mills paid their salaries. Mills' funds were also used in the formation and operation of Industries, which was formed to finance the purchase of land in Hyde County by Foods. Foods borrowed the money from Industries, which had borrowed the money from Horace Lowder, who had in turn borrowed from Mills, Foods, Hatcheries and Farms. The net result of these transactions was that Horace Lowder, personally and through his 100% ownership of Industries, earned one half of one per cent interest on the deal.
North Carolina recognizes that one may be a de facto officer or director of a corporation. See R. Robinson, supra, *655 secs. 11-8 and 13-2. The evidence tended to show that Horace Lowder signed the income tax returns of Farms as president as early as 1953 and signed the income tax returns of Mills as assistant treasurer as early as 1961; that Horace Lowder had major input into the formation and operation of these companies; and that Horace took over management of the companies in the late 1950's when his father had surgery removing one of his kidneys. The evidence thus supports a finding that Horace was an officer at the time these opportunities arose.
At one time, Mills engaged in the businesses of flour milling, cornmeal milling, feed production, raising broilers, and egg marketing. By 1975, it engaged in no business, except to lease its facilities to businesses owned or controlled by Horace Lowder.
Horace Lowder, at trial, offered explanations for various decisions to show that the transactions were "just and reasonable" to Mills. For example, he explained that Mills got out of the egg marketing business because egg marketing placed Mills in an awkward position with its feed customers. Yet, Foods went from no sales and no business to $2.5 million in sales and a gross profit of more than $380,000 in its first year of operation. Whether or not these explanations were reasonable were for the jury to determine.
We hold the foregoing evidence was sufficient for the jury to infer that Horace Lowder, as an officer or director of Mills, misappropriated corporate opportunities of Mills by the formation or operation of Foods, Hatcheries and Industries.
IV
Defendants next contend that the judgment entered upon the jury verdict was erroneous because a constructive trust in favor of Mills was placed upon all the assets of Foods, Hatcheries and Industries rather than upon their stock. This contention has no merit. The judgment provided that the balance of the assets of the companies, after the payment of liabilities and the return of shareholders' investment properly proven, belonged to Mills. The practical effect of the court's judgment is the same. Moreover, the jury found that the operation of the companies, and not just their formation, constituted the misappropriation of the corporate opportunities.
V
We next consider the court's judgment ordering a dissolution and liquidation of the corporations. A superior court has the power to liquidate the assets and business of a corporation in an action by a shareholder when it is established that "(l)iquidation is reasonably necessary for the protection of the rights or interests of the complaining shareholder." G.S. 55-125(a)(4). In Meiselman v. Meiselman, supra, the Court set out the analysis a superior court should employ in determining whether to order dissolution or other relief under G.S. 55-125(a)(4): The superior court must first identify the "rights and interests" a complaining shareholder has in the corporation. The Supreme Court defined these rights and interests as including the "reasonable expectations" a complaining shareholder has in the corporation. These reasonable expectations are to be determined by examining the entire history of the participants' relationship. That history includes the reasonable expectations created at the inception of the relationship, and those which evolved during the course of the parties' relationship. The interests and views of the other participants must be considered in determining these reasonable expectations. In order for a plaintiff's expectations to be reasonable, they must be known or assumed by the other shareholders and concurred in by them. In sum, plaintiff must show that: (1) he had one or more substantial reasonable expectations known or assumed by the other participants; (2) the expectation has been frustrated; (3) the frustration was not plaintiff's fault and was in large part beyond plaintiff's control; and (4) under all the circumstances of the case, plaintiff is entitled to some form of equitable relief.
*656 Once the plaintiff has made this showing the superior court must then determine whether some form of relief is reasonably necessary for the protection of the plaintiff's rights and interests. The court may order liquidation pursuant to G.S. 55-125(a)(4) or it may order the relief allowed by G.S. 55-125.1. The determination of relief is within the superior court's equitable discretion.
Among the rights and interest that the Court in Meiselman said that a shareholder has in a close corporation are secure employment, fringe benefits which flow from his association with the corporation, and meaningful participation in the management of the family business, in addition to the traditional shareholder rights, such as the right to notice of stockholders' meetings, the right to vote cumulatively, the right of access to the corporate offices and to corporate financial information, and the right to compel the payment of dividends. In the present case, the superior court found and concluded that plaintiffs, as shareholders of All Star Mills, had reasonable expectations that the companies would be managed by the controlling officer in accordance with his fiduciary obligations and according to law; that the plaintiffs' equity in the corporation would not be diluted by the usurpation of corporate opportunities or the diversion of corporate assets to other companies; and that plaintiffs would have a reasonable opportunity to realize on the value of their equity in the companies. The court further found and concluded that plaintiff Malcolm Lowder, as a shareholder of Mills, Farms and Consolidated, had a reasonable expectation that he would have "continued employment and a position and compensation reasonably proportionate to his ownership in the companies, and his training and experience"; and that plaintiffs' reasonable expectations were frustrated, through no fault of theirs, because as the jury determined, Horace Lowder misappropriated corporate opportunities of All Star Mills. As further support of its decision to liquidate the corporations, the superior court cited Horace Lowder's exercise of complete control and domination of the corporations since his father's death in 1970, his refusal to allow Malcolm Lowder a position of more authority or participation after their father's death, his handling of tax claims against the companies without counsel, his management of the companies without consulting other shareholders, his direction of operations toward companies in which he had larger interests, and his issuance of treasury stock to himself without consulting other shareholders. Noting that the other shareholders had exhibited animosity towards Malcolm Lowder during this litigation, had aligned themselves with Horace Lowder in this litigation, and had adopted a corporate resolution requiring the Board of Directors to return to Horace Lowder any assets lost by him as a result of the litigation, the Court found and concluded that the majority of the stockholders would align themselves in opposition to plaintiffs in any future operation of the corporations and that it would be difficult, if not impossible, for the affairs of the companies to be conducted in such a way that plaintiff might realize his reasonable expectations. The court concluded that the only way plaintiffs' reasonable expectations could be protected was through the liquidation and dissolution of Farms and Consolidated.
Defendants except to the superior court's finding of fact that Malcolm Lowder had a reasonable expectation of continuous employment as being unsupported by the evidence. The record, however, shows Malcolm Lowder began working for Mills in 1955 and worked continuously for either Mills, Farms, Hatcheries or Foods until he was abruptly fired by Horace in 1978. It was reasonable for the court to conclude that Malcolm Lowder, as a shareholder, had a reasonable expectation that his employment would continue. His working for all those years was sufficient notice to the other shareholders that he had a reasonable expectation of continued employment. Indeed they sought to punish Malcolm and frustrate his expectations of employment by passing a corporate resolution not to rehire Malcolm in any capacity.
*657 Defendants also except to other findings of fact as being unsupported by the evidence. Even if it is assumed, arguendo, that these findings were unsupported by the evidence, the remaining findings support the court's judgment. We hold the court's findings of fact and conclusions of law support its order of liquidation and dissolution. We can find no abuse of discretion by the court in ordering liquidation and dissolution of Mills, Farms and Consolidated.
VI
Plaintiffs have also brought forward cross-assignments of error, but because of our disposition of this case, we need not consider them.
In summary, we find no error in the trial and affirm the judgment of liquidation and dissolution.
No error.
ARNOLD and EAGLES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345934/ | 330 S.E.2d 59 (1985)
STATE of North Carolina
v.
Terry Lynn OAKLEY.
No. 8422SC856.
Court of Appeals of North Carolina.
June 4, 1985.
*60 Atty. Gen. Rufus Edmisten by Sp. Deputy Atty. Gen. John R.B. Mathis and Asst. Atty. Gen. John F. Maddrey, Raleigh, for the State.
Holton & Holton by Stephen C. Holton, Lexington, for defendant-appellant.
BECTON, Judge.
This case involves the authority of the trial court to strike a guilty plea and set a case for trial after entry of the guilty plea.
On 26 September 1983, the defendant, Terry Lynn Oakley, was charged with assault with a deadly weapon with intent to kill inflicting serious injury on the prosecuting witness, Jackie O'Neal Gathings, in violation of N.C.Gen.Stat.Sec. 14-32(a) (1981). On 16 April 1984 the defendant pleaded guilty to the lesser included offense of assault with a deadly weapon inflicting serious injury in violation of N.C. Gen.Stat.Sec. 14-32(b)(1981). As evidenced by a plea adjudication dated 16 April 1984, the trial court unconditionally accepted the plea and entered it in the record. Following a sentencing hearing, the trial court, in a 16 April 1984 judgment, imposed a sixyear suspended sentence on the defendant; placed him on supervised probation for a five-year period; ordered him to pay $10,380.06 restitution to Gathings for her medical bills; and ordered him not to assault Gathings during the probationary period.
Gathings was not present either at the entry of the plea or at the sentencing hearing. At the sentencing hearing, the State had presented evidence that during an argument on 24 September 1983, the defendant, while intoxicated and jealous, had knocked Gathings to the ground and kicked her in the back. As a result, Gathings suffered a fractured vertebra and other back injuries. Assistant District Attorney York stated: "[A]t this time it is unknown as to the extent of the damage; she has undergone an operation and total medical *61 bills you [the trial court] have before you is over $10,000. She is still receiving treatment now, to my understanding." From the defendant's evidence, it appears that the medical bills before the trial court were those Gathings had given to the District Attorney's office and totalled $10,380.06.
The following day, 17 April 1984, Gathings requested a hearing with the trial court to express her dissatisfaction with the proceedings. Assistant District Attorney Morris explained that Gathings had come to the District Attorney's office the previous day and asked how to get restitution for her medical bills. Mr. Morris told her to take the bills to the courtroom and tell the district attorneys there, Mr. Zimmerman and Mr. York. According to Mr. Morris, Gathings commented that her medical bills totalled more than $40,000. In unsworn testimony, Gathings herself then told the trial court that she had not followed Mr. Morris' directions. According to Gathings, a detective had told her not to go, saying that the defendant's case would not be coming up that day. Gathings brought no copies of the medical bills with her on 17 April. She then told the trial court that she was afraid for her life, because the defendant was threatening to kill her.
Immediately thereafter, the State made a motion pursuant to N.C.Gen.Stat.Sec. 15A-1420 (1983) to set aside the judgment. The trial court announced in open court that it would set aside the judgment saying: "Matters have been brought before the court of which the court was not aware of at the time of the plea. Let the plea be withdrawn and be tried by the Jury, based on evidence the Court was not aware of at the time of the hearing." The order for arrest issued on 17 April 1984 listed the original charge of assault with a deadly weapon with intent to kill inflicting serious injury. On 20 April 1984 defendant appealed from the 17 April 1984 order setting aside the 16 April 1984 judgment and striking the guilty plea.
I
The defendant contends that the immediate hearing of the State's motion for appropriate relief violated statutory procedural requirements and constitutional due process. Furthermore, the defendant argues that the State's motion was improperly granted (1) based on unsworn testimony, (2) without evidence of new matters which the trial court was not aware of 16 April 1984, and (3) because it put the defendant in double jeopardy in violation of the United States and North Carolina Constitutions.
We agree that the trial court erred in hearing the State's motion. The State has no statutory right to make a motion to set aside a judgment on the basis of newly discovered evidence. See N.C. Gen.Stat.Secs. 15A-1416 and -1445 (1983). Because the trial court could have set aside the judgment on its own authority, allowing the State's motion was harmless error. However, in striking the guilty plea and setting the case for trial, the trial court exceeded its authority. We therefore reverse the 17 April 1984 order in part, and remand to the trial court for reinstatement of the guilty plea, for the reasons discussed below.
II
Under N.C.Gen.Stat.Sec. 15A-1415 (1983), a defendant may seek appropriate relief by motion at any time after the entry of judgment based on newly discovered evidence. The grounds for relief are narrowly drawn:
Evidence is available which was unknown or unavailable to the defendant at the time of the trial, which could not with due diligence have been discovered or made available at that time, and which has a direct and material bearing upon the guilt or innocence of the defendant.
G.S.Sec. 15A-1415(b)(6) (1984). See Eagles, Disposition of Defendants Under Chapter 15A, 14 W.F.L.Rev. 971, 1008-10 (1978). The granting of relief remains within the discretion of the trial court. State v. Sprinkle, 46 N.C.App. 802, 266 S.E.2d 375, disc. rev. denied, 300 N.C. 561, 270 S.E.2d *62 115 (1980). By contrast the State is authorized under G.S.Sec. 15A-1416 (1983) to "seek appropriate relief for any error which it may assert upon appeal" within ten days after entry of judgment. G.S.Sec. 15A-1445 (1983), governing the State's right to appeal from superior court, provides:
(a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the superior court to the appellate division:
(1) When there has been a decision or judgment dismissing criminal charges as to one or more counts;
(2) Upon the granting of a motion for a new trial on the grounds of newly discovered or newly available evidence but only on questions of law.
(b) The State may appeal an order by the superior court granting a motion to suppress as provided in G.S. 15A-979.
In addition, under G.S. Sec. 15A-1416, the State may make a motion for appropriate relief to impose a sentence after prayer for judgment has been continued, G.S.Sec. 15A-1416(b)(1), and to modify a sentence pursuant to Article 82 on probation, Article 83 on imprisonment or Article 84 on fines, G.S.Sec. 15A-1416(b)(2). Although the State is authorized to seek appropriate relief upon the granting of a defendant's motion for a new trial based on newly discovered or newly available evidence, G.S.Secs. 15A-1416 and -1445(a)(2), there is no statutory provision authorizing the State to make a motion to set aside a judgment based on its own newly discovered evidence. Thus, the trial court erred in hearing the State's motion to set aside the judgment.
As noted, the trial court did more than merely grant the State's motion to set aside the judgment; the trial court struck the guilty plea, and set the case for trial on its own authority. During the session a judgment is in fieri; the trial court has the discretion to vacate or modify the sentence imposed. State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978); State v. Brown, 59 N.C. App. 411, 296 S.E.2d 839 (1982), cert. denied, 310 N.C. 155, 311 S.E.2d 294 (1984); In re Tuttle, 36 N.C.App. 222, 243 S.E.2d 434 (1978); 24 C.J.S. Criminal Law §§ 1587-90 (1961). See Jenkins v. United States, 555 F.2d 1188 (4th Cir.1977) ("[I]n a criminal case the sentence is the judgment."); United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980) (lesser expectation of finality in sentencing phaseno violation of double jeopardy principles). Therefore, in vacating the sentence during the session in which it had been rendered, the trial court acted within its discretion.
Significantly, neither the statutory nor the case law empowers the trial court with the absolute discretion to strike a guilty plea once it has been unconditionally accepted and entered. "Undeniably, a defendant is considered to be convicted by the entry of his plea of guilty just as if a jury had found a verdict of guilty against him...." United States v. Hecht, 638 F.2d 651, 657 (3d Cir.1981); State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976); State v. Shelly, 280 N.C. 300, 185 S.E.2d 702 (1972). Thus, a trial court's discretion to strike a guilty plea and set a case for trial derives, if at all, from its comparable authority to overturn a jury verdict and order a new trial.
We turn to the provisions of Article 89 of Chapter 15A of the North Carolina General Statutes, entitled Motion for Appropriate Relief and Other Post-Trial Relief. The introductory Official Commentary to Article 89 establishes that the motion for appropriate relief is intended to provide "a single, unified procedure for raising at the trial level errors which are asserted to have been made during the trial." N.C.Gen. Stat.Sec. 15A-1411 (1983) specifies:
(c) The relief formerly available by motion in arrest of judgment, motion to set aside the verdict, motion for new trial, post conviction proceedings, coram nobis and all other post-trial motions is available *63 by motion for appropriate relief. The availability of relief by motion for appropriate relief is not a bar to relief by writ of habeas corpus.
The relief offered when the trial court grants a motion for appropriate relief includes a new trial, dismissal of any or all charges or any other appropriate relief. N.C.Gen.Stat.Sec. 15A-1417 (1983).
Pursuant to G.S.Sec. 15A-1420(d) (1983), the trial court has the authority to grant appropriate relief on its own motion only if the defendant would be entitled to such relief by motion for appropriate relief. It follows that the trial court does not have the authority to grant appropriate relief which benefits the State. In this case, striking the guilty plea to the lesser included offense and setting the case for trial on the original charge benefited the State exclusively.
We conclude that the trial court thereby exceeded its authority. We therefore reverse the 17 April 1984 order in part and remand the case to the trial court for reinstatement of the 16 April 1984 guilty plea to assault with a deadly weapon inflicting serious injury. Reinstatement of a guilty plea following the correction of an error of law does not violate the principles of double jeopardy. United States v. Hecht. As discussed earlier, the trial court acted within its discretion in setting aside the judgment. From the record it is apparent that the defendant and the State had entered into a plea arrangement. On remand, the defendant may withdraw his guilty plea at the resentencing hearing, if the judge decides to impose a sentence other than the original plea arrangement, N.C.Gen.Stat.Sec. 15A-1024 (1983), or he may seek to negotiate new terms and conditions under his original plea to the lesser included offense.
Reversed in part and remanded for reinstatement of guilty plea and resentencing.
WEBB and PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345936/ | 330 S.E.2d 513 (1985)
In the Matter of Bianca Laprena CALDWELL, minor child,
Mecklenburg County Department of Social Services, Petitioner; and
Teresa Valay Caldwell, and Romero Clark, Respondents.
No. 8426DC1138.
Court of Appeals of North Carolina.
June 18, 1985.
*515 Ruff, Bond, Cobb, Wade & McNair by Robert S. Adden, Jr. and William H. McNair, joining on the brief Ronald L. Chapman, guardian ad litem, Charlotte, for petitioner Dept. of Social Services.
Harper, Connette & Stovall by Lois H. Grace Stovall, Charlotte, for respondent Caldwell.
WELLS, Judge.
Respondent attempted to appeal in forma pauperis pursuant to N.C.Gen.Stat. § 1-288 (1983). Notice of appeal was given 7 June 1984, and trial counsel moved to withdraw the same day. Present counsel was appointed 18 June 1984, and filed appeal entries 5 July 1984, followed by a motion for leave to appeal in forma pauperis and for an extension of time to file same on 11 July 1984. The motion was allowed the same day. Petitioner DSS filed a motion to dismiss the appeal on 31 July 1984, alleging lack of notice and lateness. Relying on In re Shields, 68 N.C.App. 561, 315 S.E.2d 797 (1984), the trial court ruled that respondent had failed to comply with G.S. § 1-288 and struck its order allowing appeal in forma pauperis. Respondent assigns error.
G.S. § 1-228 requires that motions to appeal in forma pauperis be made at the latest within ten days after the expiration of the session at which judgment is rendered. This requirement is mandatory. In re Shields, supra. Even assuming that the ten day limit began to run as of the time counsel was appointed for appeal, no motion was filed within ten days. The late filing of appeal entries has no bearing on the question; appeal entries are simply a convenient means of providing a record entry of the fact that an appeal has been taken, and do not constitute the taking of the appeal itself. See Commentary, Rule 3 of the Rules of Appellate Procedure. The court correctly denied respondent leave to proceed in forma pauperis. The docket of this court indicates that all fees and printing charges have nevertheless been paid; therefore this court has jurisdiction over the cause and we proceed to the merits.
The trial court found that respondent's parental rights should be terminated under N.C.Gen.Stat. § 7A-289.32(2) (Cum. Supp.1983). If this judgment is supported by the evidence and findings of fact, it must be affirmed. Respondent has failed to except to any of the findings of fact, they are therefore conclusive on appeal. In re Apa, 59 N.C.App. 322, 296 S.E.2d 811 (1982). We reject respondent's argument that because she has excepted to the court's conclusion of law that the findings are supported by clear, cogent and convincing evidence, the sufficiency of the evidence to support the entire body of the findings is thus presented for review. Such broadside exceptions have always been considered ineffective by our appellate courts. Once substantial evidence has been introduced, whether that evidence reaches the level necessary to support a *516 finding, whether beyond a reasonable doubt or clear, cogent and convincing, rests essentially with the finder of fact. See Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). The finder's decision will not ordinarily be reviewable. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh'g denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). The sufficiency of the evidence to support the findings is accordingly not before us. In re Apa, supra.
In cases such as this, to determine neglect the trial court may consider the original adjudication of neglect, and must also consider evidence of changed conditions to the time of hearing in light of the evidence of prior neglect and the probability of repetition of neglect. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984). It is not essential that there be evidence of culpable neglect following the initial adjudication. See In re Johnson, 70 N.C.App. 383, 320 S.E.2d 301 (1984). Here the court found that the child was in the bottom five percent of children in her age group in weight, that respondent failed to supervise her properly, that the child was allowed to remain in dirty diapers and drink out of discarded bottles, and that the child, while with respondent, lived in an environment injurious to her health and welfare. See N.C.Gen.Stat. § 7A-517(21) (1981). In addition, the court found that respondent suffered mental problems resulting in inability to care for herself and adversely affecting her ability to care for a child. The court found that the various social service workers that had seen respondent up to the time of hearing found her ability to deal with reality diminished and that the social workers still took care of her affairs for her; significantly, nothing in the order suggests any real improvement in respondent's condition. We conclude that these findings support the court's conclusion that respondent's parental rights should be terminated under G.S. § 7A-289.32(2); In re Ballard, supra. The evidence clearly showed that the problems which caused the injurious environment had continued and probably would recur.
Respondent argues that in its focus on her mental condition, the trial court attempted to in fact terminate her parental rights for mental illness, see N.C.Gen.Stat. § 7A-289.32(7) (1981), but erroneously ignored that section's requirement that the court find a reasonable probability that the incapability to provide proper care will continue throughout the child's minority. We disagree. The ground for termination was neglect. Facts evidencing physical neglect were properly found, sufficient to support a determination that the child was neglected. The review of respondent's own condition was necessary to determine that this neglect probably would recur. In re Ballard, supra; see In re Castillo, 73 N.C. App. 539, 327 S.E.2d 38 (1985) (court must consider all evidence of neglect and probability of repetition). Absent such evidence showing likelihood of repetition, it is doubtful that individual instances of neglect will support termination, except in exceptional cases. See, e.g., In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982) (violent, likely sexual, abuse), appeal dismissed sub nom. Moore v. Guilford County Dept. of Social Services, 459 U.S. 1139, 103 S. Ct. 776, 74 L. Ed. 2d 987 (1983).
Recent decisions support our result on this issue. In In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984) the supreme court affirmed termination on grounds of neglect where there was little evidence of deleterious physical conditions, although the parents did have a history of poverty and failure to get the children to school. The parents' mental retardation apparently swayed the court to conclude that erratic attention to education and basic material needs would continue, sufficient to support termination for neglect. Similarly, in In re McDonald, 72 N.C.App. 234, 324 S.E.2d 847 (1985), we affirmed termination where the only instance of active neglect involved smoking near gasoline. However, general inadequate care, and, more importantly, chronic alcoholism, supported termination of parental rights. The findings of neglect *517 were proper and supported the court's order in accord with the law.
Respondent assigns error because the tape device used to record the trial did not work (the record was subsequently reconstructed with the help of trial counsel). Tape recording of trials in district court is permitted by law. N.C.Gen. Stat. § 7A-198 (1981). Absent contemporaneous objection to the use of tape devices, to show prejudicial error an appellant must at least indicate the import of some specific testimony or other proceeding that has been lost. In re Peirce, 53 N.C.App. 373, 281 S.E.2d 198 (1981). Simply conjecturing, as respondent has done, that there may have been objections to critical testimony, without showing why any such testimony ought to have been excluded, will not support reversal, particularly when as here trial counsel assists in reconstructing the record.
Finally, respondent contends that the trial court erred in refusing to exercise its discretion not to terminate and in failing to find facts for this refusal. Irrespective of the existence of grounds for termination, the court retains discretionary authority to dismiss the petition in the best interests of the child. N.C.Gen.Stat. § 7A-289.31(b) (1981); In re Montgomery, supra. The statute only requires findings of fact when the court chooses to exercise this discretion. We are aware of no requirement that the court find facts in declining to do so. The order terminating rights must itself provide the legal basis, including requisite findings, for termination. The legislature has determined as a policy matter, in the interest of the child, that an order so supported will suffice to terminate parental rights. No further findings are required.
The order appealed from is therefore
Affirmed.
JOHNSON and COZORT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2334067/ | 274 P.3d 935 (2012)
2012 UT 16
Eric STERN, Michaela Stern, Loraine Sundquist Berolatti, Lloyd J. Cummings, Lorraine Cummings, Leland Richins, Linda A. Richins, Anthony A. Costanza, DeVonna Costanza, Roger Chase, Becky Chase, L. Craig Hamada, Susan Hamada, Jeff Darby, and Kim Darby, Plaintiffs and Appellants,
v.
METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY, Draper City, and Draper Irrigation Company, Defendants and Appellees.
No. 20100339.
Supreme Court of Utah.
March 20, 2012.
*938 Stephen K. Christiansen, Kelley M. Marsden, Salt Lake City, for appellants.
W. Cullen Battle, Rachel G. Terry, Rachel S. Anderson, Salt Lake City, for appellee Metropolitan Water District of Salt Lake & Sandy.
Douglas J. Ahlstrom, Benjamin C. Rasmussen, Draper, for appellee Draper City.
David B. Hartvigsen, Matthew E. Jensen, Salt Lake City, for appellee Draper Irrigation Company.
Justice LEE, opinion of the Court:
¶ 1 The Point of the Mountain Aqueduct is a sixty-inch diameter pipeline that runs along the historic Draper Canal and transports culinary water to Salt Lake City and other cities in the Salt Lake Valley. Plaintiffs in this case are homeowners who asserted claims challenging Metropolitan Water District's construction of the aqueduct as exceeding the scope of its real property rights along the canal route. The district court granted summary judgment for the Water District. We affirm that decision in most respects, but reverse and remand for further proceedings on one issue.
I
¶ 2 Appellants are four private property owners in Draper, Utah whose land abuts the Point of the Mountain Aqueduct. Metropolitan Water District of Salt Lake & Sandy is a water district organized under the Metropolitan Water District Act. See UTAH CODE §§ 17B-2a-601 to -608. The District constructed the aqueduct on real property it acquired through its codefendants, Draper City and Draper Irrigation Company.[1] The District placed the aqueduct along the Draper Canal, which was originally constructed sometime between 1915 and 1921 by the District's predecessor in interest, Utah Lake Irrigation Company (ULIC).
*939 ¶ 3 In the following paragraphs, we (a) first recount ULIC's original acquisition of property rights for its construction of the Draper Canal; (b) then explain the canal's usage from 1921 through the 2005 construction of the Point of the Mountain Aqueduct; and (c) conclude with a discussion of the procedural history of this case.
A
¶ 4 In 1914, ULIC sought to develop an irrigation canal on the southeast benches of the Salt Lake Valley and began obtaining the necessary property rights. At the time, appellants' predecessors in interest owned four parcels of land in the proposed path of the canal. ULIC used three different methods to obtain rights in these parcels: (1) voluntary transfers, (2) a stipulated condemnation judgment, and (3) a contested condemnation judgment. ULIC constructed the Draper Canal after successfully obtaining property rights in a fifty-foot strip of land traversing appellants' predecessors' parcels. The company identified the lengths of the canal corresponding to the boundaries of each parcel as "reaches." Reaches 16-19 are at issue in this case.
¶ 5 ULIC obtained Reaches 16 and 17 by warranty deed from Bayard and Matilda Crosgrove in 1914 (Crosgrove Deeds I and II, respectively). The relevant language in the Crosgrove Deeds is identical, stating that the grantors "hereby convey and warrant to Utah Lake Irrigation Company" a "described tract of land in Salt Lake County." Both Deeds further state that the "strip of land [is] to be used for canal purposes only." Appellants Anthony Costanza and DeVonna Costanza are the Crosgroves' successors in interest as current owners of the property abutting Reach 16. Appellants Eric Stern, Michaela Stern, Leland Richins, and Linda Richins are also the Crosgroves' successors in interest as current owners of the property abutting Reach 17.
¶ 6 ULIC obtained Reach 18 through a stipulated Judgment in Condemnation against the Susannah Crane family, entered August 22, 1914 (the Crane Judgment).[2] Prior to the Judgment, the Cranes had agreed that "a decree of condemnation may be entered herein, condemning in fee to plaintiff the property hereinafter described for the purpose of constructing and maintaining a canal." Pursuant to this stipulation, the Judgment stated that the "action was commenced to condemn the property ... for the purpose of constructing and maintaining a canal," and ordered "that plaintiff take and acquire and have [the property] for its use in fee." Appellant Loraine Berolatti is the Cranes' successor in interest as current owner of the property abutting Reach 18.
¶ 7 ULIC obtained Reach 19 through a condemnation decree (the Smith Decree), entered July 21, 1915, after a jury trial against Elida H. Smith. The Smith Decree granted ULIC a "right of way for its canal and for the construction, operation and perpetual maintenance" of the canal. Appellants Lloyd Cummings and Lorraine Cummings are Smith's successors in interest as owners of the property abutting Reach 19.
B
¶ 8 In 1921, after acquiring the necessary property rights and building the Canal, ULIC transferred ownership of the canal to Draper Irrigation Company. Draper Irrigation used the canal for the next seventy years to transport irrigation water from the Jordan River to farmland in southeastern Salt Lake County.
¶ 9 Over the years, the canal began to receive increased flows of urban and storm water runoff, and in 1975, Draper Irrigation granted Salt Lake County the right to use the canal as part of its storm drain and flood control system. Then in 1998, Salt Lake County transferred control over the storm drain and flood control uses of the south portion of the canal (including Reaches 16-19) to Draper City, which continued using the canal for storm drainage.
¶ 10 Meanwhile, in 1993-94, Draper Irrigation installed underground irrigation-water *940 pipelines across most of the canal, but not across Reaches 16-19, which remained open. Draper Irrigation ceased cleaning and maintaining the open portions of the Canal in 1993, and then ceased transporting open irrigation water sometime between 1993 and 1995.[3]
¶ 11 In 1998, Draper City began negotiating with Draper Irrigation to acquire the canal for use as a public trail and for storm drainage purposes. Draper Irrigation eventually conveyed its interest in the canal to Draper City in 2001.
¶ 12 Soon afterward, in 2002, Metropolitan Water District of Salt Lake & Sandy negotiated with Draper City to build the Point of the Mountain Aqueduct through the City. The proposed aqueduct would carry culinary water from the District's Point of the Mountain Water Treatment Plant to other treatment plants in the area. Following these negotiations, Draper City executed a "Non-Exclusive Pipeline Right of Way and Easement Agreement," granting the District use of the canal for its Aqueduct.
¶ 13 The Water District began construction in 2005, and during the course of this litigation it has completed the buried aqueduct and graded the surface of the old Draper Canal. In connection with laying the sixty-inch pipeline, the District constructed cement air-valve structures that rise a number of feet above ground,[4] and installed a fiber-optic control cable that operates the valves. According to appellants, "one of the concrete blocks is directly in front of the Sterns' front door." Draper City has also constructed a public bicycle path along the graded surface of the old Canal, traversing Reaches 16-18 abutting appellants' property.[5]
C
¶ 14 Appellants brought this action in the district court at the outset of the Water District's construction of the aqueduct. The court denied appellants' initial request for a preliminary injunction, and the parties cross-moved for summary judgment while the construction proceeded. In their summary judgment motion, appellants argued that:
(1) The Crosgrove Deeds, the Crane Judgment, and the Smith Decree conveyed easements solely for the purpose of an irrigation canal;
(2) The aqueduct exceeded the scope of these easements because it was for culinary use and because the air-valve structures burdened the servient estate beyond the contemplation of the original parties;[6]
(3) In the alternative, even if the Crosgrove Deeds and the Crane Judgment conveyed fee interests, the instruments contained restrictive covenants that run with the land, limiting use of the property to the original irrigation canal; and
(4) As an additional alternative, Draper Irrigation abandoned its easements when it ceased using Reaches 16-19 for open irrigation flows in 1995.
¶ 15 The District, joined by Draper City and Draper Irrigation, argued that the Crosgrove Deeds and the Crane Judgment conveyed fee interests and contained only personal covenants that did not run with the land. It conceded that the Smith Decree granted only an easement, but argued that *941 the scope of the easement was broad enough to include the buried, culinary-water pipeline and the air-valve structures. Finally, the District argued that it never intended to abandon the easement and continued using the easement for storm water purposes between 1993 and 2001.
¶ 16 The district court denied appellants' motion and granted summary judgment to the Water District. Concerning Reaches 16-17, the court concluded that the Crosgrove Grants "were standard warranty deeds that `conveyed and warranted'" fee interests to ULIC, and that the deeds' "canal purposes only" language was merely a personal covenant that "does not bind successive owners."
¶ 17 Concerning Reach 18, the court concluded that the Crane Judgment conveyed a fee interest to ULIC because the judgment "specifically refers" to a conveyance "in fee." In addition, the underlying stipulation expressly authorized a condemnation "in fee." The court also interpreted the other language in the judgment "as being personal covenants" that do not run with the land.
¶ 18 With regard to Reach 19, the court concluded that the District's use "does not exceed the scope of the easement" because of the "need for modernization" and because the aqueduct did not impose an "excessive burden" on appellants. The court stated that "there is no legal or factual support for the plaintiffs' position that the easement ... must be limited to irrigation purposes only."
¶ 19 Finally, the court concluded that appellants had not shown by clear and convincing evidence that the District had abandoned its Reach 19 easement. According to the court, "while irrigation flow may have ceased in 1995, the Canal has continuously been utilized for storm water drainage," refuting any claim of abandonment. Appellants appealed from the district court's summary judgment ruling. We elected to retain jurisdiction to resolve important issues concerning the interpretation of deeds and the relationship between private property rights and public water projects.
¶ 20 Whether the Water District was entitled to summary judgment is a question of law we review for correctness. Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 UT 33, ¶ 18, 258 P.3d 539. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. UTAH R. CIV. P. 56(c).
¶ 21 The interpretation of a deed is generally a question of law we review for correctness. See Hartman v. Potter, 596 P.2d 653, 656 (Utah 1979).[7] We also review the district court's interpretation of the Crane Judgment and the Smith decree for correctness. See Park City Utah Corp. v. Ensign Co., 586 P.2d 446, 450 (Utah 1978) ("[A] judgment is subject to construction according to the rules that apply to all written instruments.").
II
¶ 22 We affirm in part, reverse in part, and remand for further proceedings on one question that was not appropriately resolved on summary judgment. First, as to Reach 18, we affirm the district court's ruling that the Crane Judgment conveyed a fee simple interest to ULIC, free of any restrictive covenants.
¶ 23 Second, as to Reaches 16-17, we affirm the district court's ruling that the Crosgrove Deeds conveyed fee interests to ULIC. We reverse, however, the district court's conclusion that the Crosgrove Deeds contain personal covenants, and hold instead that the Deeds impose restrictive covenants that run with the land, limiting the use of Reaches 16-17 to "canal purposes only." We further hold that transporting culinary water in the canal does not violate these restrictive covenants because we cannot construe "canal" to be limited to irrigation purposes. But we remand for a determination of whether the Water District's construction of the canal and its associated air-valve structures was reasonable and did not materially exceed the *942 burden sought to be limited by the Crosgrove Deeds' restrictive covenants.
¶ 24 Finally, as to Reach 19, we affirm the district court's conclusion that transporting culinary water falls within the scope of "canal purposes" under the easement created by the Smith Decree. However, under the same standard we apply to Reaches 16-17, we reverse the district court's conclusion that, as a matter of law, the construction of the buried pipeline and its associated air-valve structures was reasonable and did not materially alter the burdens to the servient estate, and we remand for a factual determination of that issue. We also affirm the district court's ruling that the Water District was entitled to summary judgment regarding appellants' claim that Draper Irrigation abandoned its Reach 19 easement after 1993. Abandonment claims require clear and convincing evidence, and appellants produced insufficient evidence in the district court to allow any reasonable fact finder to conclude that Draper Irrigation intended to abandon its Reach 19 easement.
¶ 25 In Section A we address Reach 18, which presents the simplest interpretive issue. Section B then explains why ULIC obtained a fee rather than an easement in Reaches 16-17, and why its fee interest is restricted by covenants that run with the land. In Section C we address the meaning of "canal purposes," which defines the scope of both ULIC's Reach 19 easement and the restrictive covenants that burden Reaches 16-17. Finally, Section D concludes that Draper Irrigation never abandoned the Reach 19 easement.
A. Reach 18: Fee Simple Absolute
¶ 26 Entered in 1914, the Crane Judgment is a judgment and order of the Salt Lake County District Court. In that judgment, it is "ORDERED, ADJUDGED, and DECREED THAT PLAINTIFF take and acquire and have for its use in fee the said land hereinafter described." The judgment nowhere uses the words "easement" or "right of way," the terms typically used to convey a right to pass over another's land. See Richard v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah 1977) ("A right of way means a right to pass over another's land...." (quoting 1 THOMPSON ON REAL PROPERTY § 464 (1924))). And as the district court concluded, no other language in the Crane Judgment in any way limits the grant to an easement.
¶ 27 Appellants nonetheless insist that "the only estate that could legally be conveyed" by the Crane Judgment was an easement. They point to the eminent domain statute in force at the time of the judgment, which authorized the taking only of a right of way.[8] Appellants also point to Moon Lake Water Users Ass'n v. Hanson, in which we held that a judgment pursuant to an analogous eminent domain statute conveyed only an easement, even though the judgment purported to convey title "in fee simple." 535 P.2d 1262, 1264 (Utah 1975).
¶ 28 These arguments fail because unlike the judgment in Moon Lakethe Crane Judgment was not contested. Prior to the judgment, the Cranes stipulated that "a decree of condemnation may be entered herein, condemning in fee to plaintiff the property hereafter described." Appellants have pointed to no rule that would prevent the Cranes from agreeing to convey the entire fee interest to ULIC for an agreed-upon price.[9] This distinguishes Moon Lake, in which the condemnor won a contested judgment against the condemnee. See id. at 1263. Had the Cranes not agreed to convey a fee interest, ULIC would have been limited to whatever statutory powers of condemnation it possessed. But given the Cranes' stipulation and the explicit grant of a fee in the judgment, the only reasonable conclusion *943 is that ULIC acquired a fee simple interest in Reach 18.
¶ 29 Moreover, that fee simple interest is not subject to a restrictive covenant limiting the use of Reach 18 to canal purposes. Though the introduction to the Crane Judgment states that the "action was commenced to condemn the property ... for the purpose of constructing and maintaining a canal," this prefatory statement of purpose in no way limits the operative terms of the judgment. These terms constitute an unambiguous order and decree that the Cranes "take and acquire" an unqualified "fee" interest in the land in question. These operative terms of the judgment contain no restriction or limitation to "canal purposes," and we see no basis for inferring such a restriction from the prefatory purpose statement. An action commenced for one particular purpose could certainly be resolved in a manner that extends beyond that purpose, and the Crane Judgment unambiguously does just that. We decline to read a preliminary statement of purpose as a limit on the operative terms of a judgment, and hold that the Crane Judgment imposed no restrictive covenant that would limit the property's use to canal purposes.
B. Reaches 16-17: Fee Simple with Restrictive Covenants
¶ 30 The Water District's interest in Reaches 16-17 originates with the 1914 Crosgrove Deeds.[10] Under appellants' interpretation of the deeds, they either conveyed only an easement to ULIC or conveyed a fee interest subject to restrictive covenants that limit the property's use to "canal purposes only." The Water District asks us to affirm the lower court's interpretation that the deeds conveyed fee interests and the "canal purposes" covenants were personal and did not run with the land. Examining the text, structure, and context of the Crosgrove Deeds, we conclude that (1) the Deeds conveyed a fee simple interest to ULIC and (2) the Deeds impose restrictive covenants that run with the land.
1
¶ 31 The District argues that the Crosgrove Deeds conveyed a fee to ULIC because they use the phrase "conveys and warrants," which is presumed by statute and common law to convey a fee interest. It also claims that, to rebut this presumption, appellants must present clear and convincing evidence to the contrary. The lower court agreed, stating that the plaintiffs had failed to produce clear and convincing evidence to rebut the presumption of a fee. Appellants argue that the heightened burden of proof was inappropriate, and that Haynes v. Hunt, 96 Utah 348, 85 P.2d 861 (1939), dictates a different resultthat the "canal purposes" clause limits the estate conveyed to an easement.
*944 ¶ 32 We affirm the district court's conclusion that the Crosgrove Deeds conveyed fee interests to ULIC, but reject the clear and convincing evidence standard it applied. The district court invoked Jacobson v. Jacobson, 557 P.2d 156, 158 (Utah 1976), for the proposition that "conveyed and warranted" language in a deed creates a presumption that the deed transfers a fee simple interest, and that this presumption may be overcome only by "clear and convincing evidence." But Jacobson imposed that burden on plaintiffs who asked the court to reform a deed based on extrinsic evidence of the parties' alleged intent to execute a mortgage rather than transfer title. Id. at 157-58. The Jacobson court refused to ignore the deed's language and construe it as an equitable mortgage absent clear and convincing evidence that the deed did not mean what it said. Id.[11]
¶ 33 That is not the situation here. Appellants in this case do not ask us to ignore the Crosgrove Deeds' language and reform the Deeds based on extrinsic evidence of intent. Instead, they rely on the Deeds' language, arguing that the "canal purpose" clauses are meant to limit the conveyance to an easement. Thus, while we disagree with appellants' interpretation of the Deeds, the law does not require parties to show by clear and convincing evidence that their interpretation of a deed is correct, and the district court was wrong to require such a showing. Instead, courts interpreting a deed should employ all appropriate tools of construction to arrive at the best interpretation of its language.[12]
¶ 34 That said, the legislature has historically imposed a statutory presumption that "fee simple title is ... intended to pass by a conveyance of real estate, unless it appears from the conveyances that a lesser estate was intended." UTAH COMP. LAWS 1971 (1907); see UTAH CODE 57-1-3. This presumption is closely connected with the long-held rule that deeds are "construed most strongly against the grantor." Wood v. Ashby, 122 Utah 580, 253 P.2d 351, 353 (1952). With this in mind, we read the text and structure of the Crosgrove Deeds to convey fee interests.
¶ 35 The Deeds' granting clauses state that they "hereby convey and warrant" a described tract of land. "Convey and warrant" is prototypical language used for transferring a fee simple interest in real estate.[13] This is true at common law and under a Utah realestate statutein effect in 1914 and today which provides an example of a warranty deed using the language "hereby conveys and warrants" and further provides that a "warranty deed ... shall have the effect of a conveyance in fee simple to the grantee." UTAH COMP. LAWS 1981 (1907); see also UTAH CODE 57-1-12(1), (2).
¶ 36 The Deeds' use of prototypical language for conveying a fee simple, the statutory mandate to presume a fee conveyance, and the absence of any contrary "right of way" language strongly evince a conveyance of a fee simple interest. Nevertheless, appellants argue that the Deeds should be read as conveying mere easements because both contain a clause that states, "Said strip of land [is] to be used for canal purposes only." This argument fails, however, in light of the structure of the Deeds and the placement of the "canal purposes" clauses.
¶ 37 The granting language appears near the beginning of the Crosgrove Deeds, followed *945 by a description of the property, and then by a list of specific agreements governing the use of the property. The canal clause is not part of the granting language or the description of the property. Instead, it appears in the final section, where the Deeds contain additional covenants between the parties. Immediately above the purpose clause, for example, Deed I imposes an affirmative covenant, stating that the "grantee agrees to construct and maintain one concrete bridge and two 1 foot galvanized iron flumes, across its canal for the use of the grantor." Deed II contains a similar covenant. The purpose clause's placementin proximity to this covenant, and not in conjunction with the granting languageis significant. If the parties had meant to restrict the conveyance to an easement, they presumably would have placed the purpose provision in a separate habendum clause.[14] Instead, the parties placed the purpose clause next to and beneath an affirmative covenant. In light of this placement, we read the purpose clause to impose a covenant, not to limit the conveyance to an easement.
¶ 38 Appellants insist that Haynes v. Hunt, 96 Utah 348, 85 P.2d 861 (1939), requires a different result. It does not. Haynes construed a deed to convey only an easement because it contained a clause in the property description that limited the "property's use to propagation of fish." Id. at 862. That holding, however, hinged on the placement and evident function of the "propagation of fish" clause: "The description of the property for grant of a fee is complete without this clause, and unless the clause is used to limit or qualify the grant it can serve no purpose whatsoever." Id. at 864. Haynes does not help appellants here for two reasons. First, the purpose clauses in the Crosgrove Deeds are not in the property description; they are included with other covenants. Second, unlike the Haynes court, here it cannot be said that the purpose clauses "serve no purpose" unless they limit or qualify the grant. The Crosgrove Deeds purpose clauses impose covenants on the grantee. In our view, the purpose clauses are not superfluous and their placement makes perfect sense if interpreted as covenants rather than limits on the granting language. We therefore affirm that the Deeds conveyed a fee interest to ULIC.
2
¶ 39 Appellants further contend that even if the Crosgrove Deeds conveyed fee simple interests to ULIC, the Deeds contain covenants that run with the land, limiting the Water District's use of Reaches 16-17 to "canal purposes only." The district court concluded that the "canal" clauses "must be construed as a personal covenant between grantor and grantee, which would not affect or otherwise limit the title and which does not bind successive owners." The Water District asks us to uphold the lower court's conclusion, arguing that the deeds contain no express language indicating that they were intended to bind successive owners. We disagree with the Water District and with the district court, and hold that the Crosgrove Deeds' "canal purposes only" covenants run with the land.
a
¶ 40 A covenant that "runs with the land" binds successive owners of the burdened or benefited land. See Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 623 (Utah 1989). The rights and duties of a personal covenant, by contrast, terminate when a covenanting party conveys the property to a subsequent owner. Id. A successor-owner claiming the benefit of a predecessor-owner's covenant must demonstrate that the covenant meets three requirements: (1) the covenant must touch and concern the land affected by the covenant, (2) the original parties to the covenant must have expressly or impliedly intended the covenant to run with the land, (3) there must be privity of estate, and (4) the covenant "must be in writing." Id. at 622-23, 629; see also RICHARD R. POWELL, POWELL ON REAL PROPERTY § 60.04(2), at 60-40 (Michael Allan Wolf ed., 2011) (listing the elements as "touch and *946 concern," "inten[t]," and "some form of privity").[15]
¶ 41 There is no dispute that the covenant touches and concerns the land, that the covenant is in writing, or that the District and appellants are in privity with ULIC and the Crosgroves, respectively.[16] The Water District takes issue only with the intent requirement. It argues that appellants must prove by clear and convincing evidence that the original parties intended the covenant to run with the land, and that appellants have not met this burden because the Deeds contain no express language of intent.
¶ 42 The law unquestionably requires a party seeking to enforce a real covenant to show that the original parties to the covenant intended that the covenant run with the land. Flying Diamond, 776 P.2d at 623. Despite the Water District's argument to the contrary, however, our law does not require parties to prove such intent by clear and convincing evidence. See id. The Water District cites to New York law, which indeed has adopted the clear and convincing standard for demonstrating that covenants run with the land. See Smith v. Estate of LaTray, 161 A.D.2d 1178, 1179, 555 N.Y.S.2d 968 (N.Y.App.Div.1990). The rule in New York is ultimately based on the policy of favoring "the free and unobstructed use of realty." Huggins v. Castle Estates, Inc., 36 N.Y.2d 427, 369 N.Y.S.2d 80, 330 N.E.2d 48, 51 (1975). We acknowledge the place of this policy under Utah law,[17] but decline to depart from the standard we used in Flying Diamond, 776 P.2d at 622-23. A party seeking to enforce a real covenant in Utah thus bears the burden of establishing intent by a mere preponderance of the evidence.
¶ 43 To meet this burden, an express statement in a deed or testimony from the original covenantors that a covenant is intended to run (or not to run) with the land is normally sufficient. Id. at 627. But often, as in this case, the deed says nothing either way, and the original parties are long gone. The court is then left to infer the parties' intent in the face of silence. In these circumstances, the parties' intent that the covenant run with the land may be "implied by the nature of the covenant itself." Id.[18]
¶ 44 In many cases, courts assume that parties intend a covenant to run with the land if the covenant touches and concerns the land in a manner that inherently benefits present and future owners of the benefited land.[19] This approach reflects the interrelationship *947 between the touch and concern and the intent requirements. Id. at 623.[20] In essence, the touch and concern element is a proxy for the parties' intent when other evidence of intent is lacking.[21] This is because touch and concern is an objective test that courts are capable of analyzing without reference to the subjective mindset of original covenantors who are frequently not before the court.[22] The result is that "[i]n most cases, where the parties have not stated an express intent, covenants that touch and concern have been assumed to be intended to run."[23]
¶ 45 For a covenant to touch and concern the land, the burdens and benefits it creates must directly relate to the land itself. Flying Diamond, 776 P.2d at 624. Running covenants must "be of such character that [their] performance or nonperformance will so affect the use, value, or enjoyment of the land itself that it must be regarded as an integral part of the property." Id. (internal quotation marks omitted). And as we have explained, covenants that are an integral and permanent part of the propertythat is, those that touch and concern the landare presumed to be intended to bind successive owners because such covenants are more closely connected to the land than to any one owner.
¶ 46 This is typically the case with covenants involving structures such as ditches, sewer lines, and canals.[24] For example, in Moseley v. Bishop, the court construed a covenant that required a grantee to "permanently maintain" a drain that ran across the grantor's land. 470 N.E.2d 773, 776 (Ind.Ct. App.1984). The court held that the grantee's intent that the covenant run was implied from "the importance of the drain" to the land retained by the grantee:
Given the importance of this drain to Moseleys land, it is improbable that the parties intended their agreement to be purely personal and not binding on subsequent grantees of the land. Faced with similar agreements relating to ditches and drains, courts in other jurisdictions have generally found an intent that the covenant run with the land.
*948 Id. (also noting the covenant's use of the term "permanently").
¶ 47 Similarly, in Pedro v. Humboldt County, the court held that the parties impliedly intended that a covenant to keep and maintain a ditch ran with the land. 217 Cal. 493, 19 P.2d 776, 777 (1933). As the court explained:
The nature and subject-matter of the agreement are themselves conclusive that the fulfillment of the agreement was not intended to benefit the covenantee only, but that it was intended also to benefit the land retained by the covenantee at the time she deeded the forty-foot strip to the defendants, and therefore to benefit the person or persons who may succeed to the ownership of the land and to the agreement made for the benefit thereof.
Id.
¶ 48 Moseley and Pedro stand for the principle that covenants related to ditches, drains, and other water channels often so integrally touch and concern the land that they are likely intended to run with the land, at least where the grantor retains land adjacent to the granted property. And that principle directly applies to the facts of this case.
b
¶ 49 Because the limitation in the Crosgrove Deeds that the property be "used for canal purposes only" integrally touches and concerns the land, we can properly infer that it was intended to run with the land. The covenant is a physical use restriction on Reaches 16-17, which significantly affects the use and value of the adjacent parcels retained by the Crosgroves. That the covenant is a restriction on use alone suggests that the covenant touches and concerns the land; if the original covenantor had been allowed to build other structures on the land, it may well have significantly devalued the adjacent land reserved by the original covenantees, the Crosgroves. Such action also could have restricted the Crosgroves' access to their own land. Thus, the use restriction not only burdened the land conveyed to ULIC, but benefited the Crosgroves' land from possible encumbrances or unsightly developments.
¶ 50 The surrounding covenants in the deed also support the conclusion that the canal covenant was intended to run with the land. ULIC covenanted to construct bridges and iron flumes across the canal so that the Crosgroves could continue to access their adjoining parcel. The Crosgroves also reserved the right to construct fences across the canal to maintain a boundary to their land. These surrounding covenants, when read together with the canal restriction, show that the canal was thought to have a longterm effect on the boundary to the Crosgroves' land.
¶ 51 Because the "canal use only" restriction was integral to the burdened land and closely tied to the Crosgroves' use of their retained land, it is unlikely that the Crosgroves and ULIC would have intended the covenant to be merely personal. And because the Crosgroves continued to occupy their property abutting Reaches 16-17, we cannot conclude that they would have intended to allow ULIC to terminate these covenants unilaterally by merely transferring ownership. We therefore hold that the Crosgrove Deeds contained restrictive covenants that run with the land. These covenants limit the Water District's use of Reaches 16-17 to "canal purposes only."
C. Reaches 16, 17 & 19: "Canal Purposes Only"
¶ 52 The existence of restrictive covenants in the Crosgrove Deeds requires us to construe those covenantsto define the scope of the "canal purposes" to which Reaches 16 and 17 are limited. And because the District's Reach 19 easement extends only to its "canal," our construction of the scope of "canal purposes" also delineates the scope of the District's rights in Reach 19.[25]
¶ 53 In evaluating the scope of the Water District's "canal" rights, we are faced with *949 the questions (1) whether "canal" is broad enough to include culinary water, (2) whether "canal" is limited to an open water channel or could refer to an enclosed pipeline, and (3) if so, whether the District's enclosure of the canal is a reasonable technological improvement to its property. Appellants insist that "canals" are waterways intended for irrigation purposes, not culinary water purposes. Appellants also suggest that "canal" necessarily implies an open waterway. Alternatively, appellants argue that even if "canal" could be construed to include a culinary water pipeline, the District's above-ground airvalve structures, which are visible from appellants' homes, materially increase the burden on their land such that the aqueduct is not a reasonable technological improvement to the property. The Water District, on the other hand, insists that "canal" encompasses not just irrigation water, but also culinary water; and that "canal" might plausibly refer not just to an open waterway, but to an enclosed pipeline; and that its transformation of the open canal into an underground pipelinewith its associated air-valve structures and fiber-optic control cableis a reasonable technological improvement that does not exceed the scope of "canal" as used in the governing instruments.
¶ 54 The district court adopted the Water District's position. It concluded that "there is no legal or factual support for the plaintiffs' position that the easement ... must be limited to irrigation purposes only." And as for the pipeline enclosure, the court held that the District's use "is reasonable, given the need for modernization, and does not pose an excessive burden." In support of this conclusion, the district court cited Valcarce v. Fitzgerald, 961 P.2d 305, 313 (Utah 1998), and Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 161 (1946), which, the court concluded, permit "reasonable modification and improvement of canals, including enclosure."[26]
¶ 55 We first address whether a "canal," as the term is used in the Crosgrove Deeds (Reaches 16-17) and the Smith Decree (Reach 19), may be used to transport culinary water or must be limited to irrigation water. For reasons that follow, we affirm the district court's conclusion that "canal" in this context is not limited to irrigation purposes. We then address whether "canal" could encompass a buried pipeline or is instead limited to an open water channel. On this issue, we conclude that "canal" may encompass a closed pipeline. Finally, we reverse the district court's conclusion that the District's particular enclosure in this case was reasonable and not unduly burdensome and remand for further proceedings on that issue.
1
¶ 56 In determining the meaning of "canal purposes only," the interpretive question before us is what the Crosgroves and the court entering the Smith Decree meant when they used the word "canal." Neither the Deeds nor the Decree explicitly refer to irrigation purposes. Nor do they make explicit reference to culinary purposes. The question, then, is whether the word "canal" itself conveys a limitation to a particular purpose irrigation or culinaryor instead encompasses any or all water uses.
¶ 57 Although appellants cite a dictionary definition of "canal" that explicitly refers to irrigation purposes,[27] they do not seriously contend that "canal" necessarily excludes culinary purposes. Instead, they argue that the court "may look to the subsequent behavior of the parties to clarify" any uncertainty. According to appellants, the parties' use of "canal" must be limited to irrigation purposes because ULIC and Draper Irrigation used the canal from 1921 to 1993 solely for irrigation purposes.
*950 ¶ 58 For its part, the Water District points to other dictionary definitions that do not limit "canal" to irrigation purposes.[28] It further argues that the Deeds and Smith Decree "should be construed in light of the conditions in place at the time the [property interest] was created." We agree with the District. Looking to the uses of canals throughout Utah's early history, we interpret "canal" in this context to include transportation of culinary water.
¶ 59 Turning first to dictionaries, we note that most every dictionary definition of canal is broad enough to include culinary water.[29] That is a significant strike in the District's favor. Where the parties to a deed used broad language that admits of no qualification, courts should honor that choice and hold them to it.
¶ 60 In the absence of strong dictionary support for their position, appellants point to the parties' subsequent behavior for clarification. That behavior bears some relevance to our interpretation. The meaning of a word must be determined by looking to the context and circumstances in which it is used (whether in a contract, a deed, or in a court judgment[30]). However, while subsequent behavior is part of the context of a writing and can thus inform its meaning,[31] we do not know the specific reason that Draper Irrigation transported only irrigation water. It could have been because Draper Irrigation thought the term "canal" limited its property rights to irrigation water; but it could have been for some other reasonsay, because it was in the irrigation business, not the culinary-water business. Thus, more than subsequent behavior is necessary in this case to resolve the interpretive issue.
¶ 61 Aside from dictionary definitions and subsequent use by the parties, common uses of canals in the early 1900s (the period in which the Deeds and Decree were executed) informs the meaning that the Crosgroves and the Smith court would have given to "canal." And though irrigation was a major driving force behind Utah's extensive canal system, the state's water history leaves us with no doubt that the historical understanding of canal uses would have extended to culinary purposes. This is evident in city ordinances, in documents describing canal projects, and in judicial decisions discussing early twentieth-century canals in Utah.
¶ 62 In the latter half of the nineteenth century, many city ordinances referred to nonirrigation, domestic uses of canals. At that time, the practice of many Utah cities was to appoint a water-master to supervise *951 the cities' canals.[32] City ordinances in Salt Lake City, Logan, and Provo all defined the water-master's duties to include dividing canal waters "as shall best serve the public interest for irrigation, domestic and other purposes."[33]
¶ 63 Canal projects elsewhere in the state likewise extended to nonirrigation purposes. The Bear River Canal was constructed by the Bear Lake and River Water Works and Irrigation Company, whose purpose "was to supply water for domestic, municipal and manufacturing uses ... for irrigation of land and for all other useful and beneficial purposes."[34]
¶ 64 Judicial decisions from the early 1900s also make references to culinary uses of Utah canals. A 1901 decree entered in the Salt Lake County District Court, known as the Morse Decree, granted Salt Lake City and four canal companies "the right to the use of all of the balance of the waters of the Jordan [R]iver for municipal, irrigation, culinary, and domestic purposes, to the extent of the capacity of their several canals."[35] That these canal companies were using the Jordan River for domestic purposes after 1901 is telling, as the Draper Canal drew its water from the Jordan Riverthe same river at issue in the Morse Decree.[36]
¶ 65 Our decision in Big Cottonwood Tanner Ditch Co. v. Shurtliff, 49 Utah 569, 164 P. 856 (1916), provides further evidence of an early twentieth-century understanding of "canal" that encompassed culinary uses. At issue in Shurtliff were water rights for "culinary, domestic, and live stock purposes" in the south branch of the Big Cottonwood Tanner Ditch. Id. at 864. In describing the background facts, the court noted that "Mr. Hawker ... lived near the ditch in question and obtained his water for culinary and domestic purposes directly therefrom." Id. at 858. The Shurtliff opinion uses the term "ditch," but there is little doubt that it used that word as a synonym for canal, and no doubt that the opinion illustrates an understanding of those terms that goes beyond the narrow irrigation-only purpose identified by appellants.
¶ 66 The notion of drinking from a canal would doubtless trouble the modern Utahn's sense of hygiene, but our ancestors apparently would not have had the same reaction. Perhaps their stomachs were cast iron. Or maybe their canal water was less susceptible to contamination. But whatever the reason, it seems clear that our predecessors around 1914 would have seen canals as a source of culinary and domestic water and not just irrigation water.
¶ 67 This history, dating from the 1860s to 1916, confirms that the community living in the Salt Lake Valley in 1914including the Crosgroves and Judge Armstrong, who wrote the Smith Decreewould have understood that canals were a source of culinary water. Thus, we interpret "canal" as used in the Crosgrove Deeds and the Smith Decree to include water channels that transport water for domestic use. The Water District's aqueduct therefore does not exceed the scope of its rights in Reaches 16, 17, or 19 merely because it transports culinary water.
2
¶ 68 The next issue is whether "canal" is limited to an open water channel or could refer to a pipeline. That depends, again, on the meaning of "canal" as used in the Crosgrove Deeds and the Smith Decree. We conclude that the term "canal," in context, encompasses a closed pipeline.
¶ 69 To begin with, some definitions of "canal" refer specifically to pipes, while others do not.[37] Thus, the word could plausibly *952 have been used in the Crosgrove Deeds and the Smith Decree to refer either to open or closed water channels. That ambiguity requires us to look to the context in which the word was used to determine its scope. Here, the key contextual cue is the common law presumption that parties to an easement anticipate increased future use and reasonable technological improvements.[38] Thus, absent express evidence of contrary intent, there is a firmly established background rule that an easement holder may make technological upgrades to its property, so long as they are not unreasonably burdensome to the servient estate.[39] We have previously discussed this rule in the context of canals and ditches in Moyle, 174 P.2d 148, and Valcarce, 961 P.2d 305.
¶ 70 In Moyle, a prescriptive easement holder sought to cement and waterproof its ditches, and the servient estate owner argued that the scope of the easement was limited to an unimproved, dirt ditch. 174 P.2d at 150. The court held that cementing the ditch was within the scope of the easement, explaining as follows:
The common law of Utah presumes that... all parties concerned, knowing of the arid nature of this country, contemplated that at some future time the owner of the water would ... undertake to prevent[] wastage of water as the need arose for more efficient use of the limited water available.... If this was contemplated, and the common law of Utah presumes that it was, then ... it was contemplated that the ditch might be improved so as to save the water [and] that these further developments to conserve water could be made by the owner of the easement so long ... as the new developments were reasonably made and did not unnecessarily burden the land.
Id. at 152. Our Valcarce decision confirmed and applied this same principle. In Valcarce, we relied on Moyle and upheld a trial court's finding that enclosing an open canal was a reasonable improvement that "enhance[d] *953 both the conveyance and the conservation of the water without materially changing the burden or adding any additional burdens" to the subservient estate. 961 P.2d at 313.
¶ 71 Appellants point out that Valcarce and Moyle were both prescriptive easement cases that contained no language defining the scope of the property right. But we see no significant difference in this respect between prescriptive easement cases, in which there is no conveying document, and this one, in which the Crosgrove Deeds and the Smith Decree speak of canals but are silent as to whether the parties contemplated their future enclosure. Either way there is no express indication as to whether the parties contemplated a potentially enclosed canal or a permanently open one.
¶ 72 Under Valcarce and Moyle, then, there is a presumption that the parties to a Utah property conveyance for a canal understand and intend that an open canal could eventually be enclosed. Where a deed or decree creates a property right for a canal but is silent as to whether the canal must be open or may be enclosed, the property owner may therefore enclose the canal and install "necessary improved structures" without exceeding the scope of the property right, so long as (1) the improvements are performed reasonably, and (2) they do not materially alter the burden on the servient estate or on the land benefited by a restrictive covenant. See Valcarce, 961 P.2d at 312-13.
3
¶ 73 The district court applied the Valcarce rule and granted summary judgment, concluding as a matter of law that the enclosure of the canal "is reasonable, given the need for modernization, and does not pose an excessive burden." As we explained in Moyle, however, reasonableness and the materiality of a burden are questions for the fact finder. 174 P.2d at 159.[40] The conclusion of reasonableness in Valcarce thus cannot directly translate as a matter of law to all cases involving enclosure of a canal. For example, the impact of the PVC-pipe enclosure in Valcarce may differ from that of the sixty-inch pipe and cement air valves in this case. Because these are questions of fact, the district court erred in its summary judgment analysis.
¶ 74 Summary judgment is warranted only where there are no genuine issues of material fact. UTAH R. CIV. P. 56(c). And in this context, genuine issues of fact exist if a reasonable mind could conclude that the Water District's improvements were performed unreasonably or that they materially altered the burden on the servient estate.[41] The district court erred in failing to apply this standard. Instead of evaluating whether a reasonable factfinder could rule in plaintiffs' favor, the court stated its own judgment on the matters of reasonableness and materiality.
¶ 75 That error would not require reversal if we could conclude that the same result would obtain even under the correct summary *954 judgment standard. Unfortunately, the parties devote little attention to this issue on appeal. The briefs filed in our court focus on the question whether "canal use" encompasses a culinary pipeline, with only passing reference to the questions whether the cement air-valve structures and pipeline were reasonably constructed or whether they materially increase the burden on appellants' property.
¶ 76 Absent any thorough briefing on these questions, we are not in a position to consider affirming on the ground that summary judgment would have been appropriate under a correct legal standard. We therefore reverse and remand for further proceedings on this issue. Though the Water District's property rights in Reaches 16, 17, and 19 are broad enough to include a culinary pipeline, there remain fact-intensive questions that cannot be resolved as a matter of law on the record before us. We accordingly remand for further proceedings on the issues of whether the Water District's enclosure of the canal was reasonable and did not materially alter the burden on appellants' land.
¶ 77 On remand, the district court should evaluate whether a reasonable factfinder could find that the Water District's improvements were performed unreasonably or that they materially altered the burden on the servient estate. In evaluating those questions, the district court should consider (1) the increased impact on appellants' property resulting from the aqueduct's construction, (2) the "relative costs of the possible methods" of designing and locating the valve structures, and (3) "all other facts and circumstances bearing" on the issue. Moyle, 174 P.2d at 159.[42]
D. Reach 19: Abandonment
¶ 78 In support of the claim that the Draper Irrigation Company[43] abandoned its Reach 19 easement in 1993, appellants assert that Draper Irrigation: (1) ceased transporting irrigation water in the canal, (2) terminated its water rights at the diversion point correlating with that stretch of the canal, (3) discontinued using the pumping station that delivered water to Reach 19 of the canal, and (4) constructed a buried irrigation pipeline through other portions of the canal.[44] The district court granted summary judgment to the Water District on this issue because Draper Irrigation continuously used the canal for storm water drainage, even after the company discontinued using it for irrigation water. We affirm.
¶ 79 Although an easement may be abandoned, such claims are not easily won. A party asserting that an easement has been abandoned must show by clear and convincing evidence that the owner intended to abandon the property right.[45] Moreover, where an easement is created by express grant, mere non-use of the easement is insufficient to demonstrate intent to abandon.[46]*955 There must be additional clear and convincing evidence that the owner intended to make no further use of the property.[47]
¶ 80 As the district court concluded, appellants in this case fail even to show non-use. The canal was continuously used for storm water drainage during the period of alleged abandonment. The relevant time period for the alleged abandonment is between 1993, when irrigation flows ceased, and 1998, when Draper Irrigation recorded at the Salt Lake County Recorder's Office a notice of property interest covering its easement across Reach 19. But beginning in December 1975, Draper Irrigation entered into a series of agreements with Salt Lake County, authorizing the County to use the canal for storm drainage and flood control. These agreements continued in force with respect to Reach 19 until 1999.
¶ 81 Draper Irrigation's authorization to Salt Lake County refutes appellants' argument that Draper Irrigation intended to abandon the easement. Draper Irrigation can hardly be said to have intended to abandon its property interest while simultaneously permitting Salt Lake County's use. Entering into a carefully-crafted contractual agreement demonstrates intent to control access to the property and limit its use to authorized individuals, not to abandon the easement.
¶ 82 Appellants acknowledge that Salt Lake County used Reach 19with permission from Draper Irrigationfor storm water between 1993 and 1998. Yet they insist that "use of the property for storm drainage is not "use of the property for canal purposes," essentially arguing that Draper Irrigation abandoned the easement by using the canal for a purpose other than to transport irrigation water. This argument is flawed. First, the broad notion of "canal purposes" outlined above could easily include storm water drainage. See supra ¶¶ 61-67. And even if storm water drainage is ultimately outside the easement's scope, appellants' argument wrongly conflates intent to abandon with misuse of an easement. The claim for exceeding the scope of an easement is not abandonment, but trespass. Cf. Conatser v. Johnson, 2008 UT 48, 194 P.3d 897 (defendants charged with criminal trespass for exceeding scope of public easement). Abandonment claims require evidence not of misuse, but of non-use. Merely showing that the owner's use is possibly beyond the scope of an easement does not show intent to permanently discontinue using the property.
¶ 83 On this record, no reasonable fact finder could conclude that appellants have shown by clear and convincing evidence that Draper Irrigation discontinued using Reach 19 with the intent to permanently abandon its easement. We therefore affirm the district court's grant of summary judgment to Draper Irrigation's successor in interest, the Water District.
III
¶ 84 For the foregoing reasons, we affirm the district court's conclusions that the Crosgrove Deeds conveyed fee interests in Reaches 16-17 to ULIC, that the Crane Judgment conveyed a fee interest to ULIC in Reach 19, and that Draper Irrigation did not abandon its Reach 19 easement. However, we reverse the district court's conclusion that Reaches 16-17 are not limited by restrictive covenants. We hold instead that the Crosgrove Deeds imposed restrictive covenants that run with the land, limiting Reaches 16-17 to "canal purposes only." We also reverse the district court's conclusion that enclosing the Draper Canal within a buried pipeline was reasonable as a matter of law and so did not exceed the scope of the Water District's property rights in Reach 19. We remand for a factual determination of whether the canal enclosure was reasonable and did not materially alter the burden to appellants' land with respect to Reaches 16, 17, and 19.
Justice LEE authored the opinion of the Court, in which Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING joined.
NOTES
[1] Both the City and Draper Irrigation joined the District's motion for summary judgment in the district court and joined the District's brief on appeal. Unless otherwise noted, we refer to the defendants collectively as "the District" or "the Water District."
[2] At the time (and still today), a water-rights statute authorized any person or corporation to use eminent domain to obtain a right of way for "conveying water for irrigation or for any necessary public use." See UTAH COMP. LAWS § 3466 (1917).
[3] There is some dispute as to whether the irrigation flows ceased in 1993 or not until 1995. We consider the facts in the light most favorable to the appellant and assume that the irrigation flows ceased as early as 1993. See Mountain W. Surgical Ctr., L.L.C. v. Hosp. Corp. of Utah, 2007 UT 92, ¶ 10, 173 P.3d 1276 ("The court must view all facts and inferences in the light most favorable to the nonmoving party....").
[4] Appellants assert in their briefs on appeal that the concrete blocks are eight feet high, but in the district court they claimed only six feet. At oral argument, the Water District stated its belief that the blocks are a mere four feet.
[5] The path traverses only the east side of Reach 19, and the Cummings have an interest only in property abutting the west side of the Reach.
[6] They also asserted that the proposed bike bath is outside the scope of the original easements yet never squarely addressed this in any of their briefs before the district court. Moreover, the district court never mentioned the bike path in its memorandum decision. On appeal, Draper City has conceded that the bike path is outside the scope of its property interests that are limited to canal purposes only.
[7] Deed interpretation poses questions of fact only if extrinsic factual evidence is relevant and the deed remains ambiguous after applying all relevant tools of construction. See Hartman v. Potter, 596 P.2d 653, 656 (Utah 1979).
[8] See UTAH COMP. LAWS § 3466 (1917) ("Any person, corporation, or association shall have a right of way across and upon . . . private ... lands ... for the construction ... of all necessary canals....").
[9] On the contrary, property owners are generally able to convey whatever interest they wish. See Redd v. W. Sav. & Loan Co., 646 P.2d 761, 763 (Utah 1982) ("[A]mong the rights attendant upon ownership and enjoyment of property are the rights to exchange, pledge, sell or otherwise dispose of itrights which must be adequately protected." (internal quotation marks omitted)).
[10] The Crosgrove I Deed states:
Warranty Deed
Bayard M. Crosgrove and wife Matilda Crosgrove Grantors, of Draper, in the county of Salt Lake state of Utah, hereby convey and warrant to Utah Lake Irrigation Company, a corporation grantee, of Provo City, Utah County, Utah, for the sum of Three Hundred Fifty and no/100 Dollars, the following described tract of land in Salt Lake County, State of Utah, to-wit:
[property description consisting of five lines of text].
The grantee agrees to construct and maintain one concrete bridge and two 1 foot galvanized iron flumes, across its canal for the use of the grantor.
Said strip of land to be used for canal purposes only.
The Grantors reserve the right to fence across the canal at the boundaries of the grantors land,
Provided, such fence shall be provided with suitable gates and shall not interfere with the operation and maintenance of said canal.
The Crosgrove II Deed states:
Warranty Deed
Charles M. Crosgrove and his wife Elizabeth Crosgrove Grantors, of Draper, in the county of Salt Lake State of Utah, hereby convey and warrant to Utah Lake Irrigation Company, a corporation grantee, of Provo City, Utah County, Utah, for the sum of Three Hundred Fifty and no/100 Dollars, the following described tract of land in Salt Lake County, State of Utah, to-wit:
[property description consisting of eleven lines of text].
The grantee agrees to construct and maintain 2 concrete bridges and two, 1 foot galvanized iron flumes, across its canal for the use of the grantors.
Said strip of land to be used for canal purposes only.
[11] See also, e.g., Hatch v. Bastian, 567 P.2d 1100, 1102 (Utah 1977) ("[W]hen a Warranty Deed is duly executed, without any reservations therein, it conveys all of the rights and interests the grantor has in the property. In order to circumvent that result by reforming the deed [the plaintiff] ha[s] the burden of proving by clear and convincing evidence that there was a mutual mistake of fact." (footnote omitted)).
[12] See RHN Corp. v. Veibell, 2004 UT 60, ¶¶ 40-41, 96 P.3d 935 (explaining that rules of construction are used to interpret a deed's language, while deed reformation is based on extrinsic evidence); Williams v. Oldroyd, 581 P.2d 561, 563 (Utah 1978) (distinguishing between "[a]pplying rules of construction" and using extrinsic evidence for "reformation of a deed").
[13] See Haynes v. Hunt, 96 Utah 348, 85 P.2d 861, 864 (1939) ("The language ... `hereby convey and warrant' normally implies a grant of the fee. . . ."). In contrast, "the words right of way are generally held to denote an easement or servitude rather than an interest in fee simple." Chournos v. D'Agnillo, 642 P.2d 710, 712 (Utah 1982).
[14] A habendum clause is "[t]he part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any conditions affecting the grant. The introductory words to the clause are ordinarily to have and to hold." BLACK'S LAW DICTIONARY 778 (9th ed. 2009).
[15] To the extent this is an action for injunctive relief, the appellants seek to enforce an equitable servitude, not a restrictive covenant at law. See Flying Diamond, 776 P.2d at 623 nn. 5-6. Although the parties fail to acknowledge this distinction, it makes no difference in this case because the intent requirementthe sole disputed issueis the same under both equitable servitudes and real covenants. See id. ("For a covenant to run in equity, it must touch and concern the land, and there must be an intent that it run. Privity is not required, but the successor must have notice of the covenant."); see also 9 POWELL, supra note 15, § 60.04(2), at 60-40 ("Different requirements developed for running of real covenants at law and running of equitable servitudes.").
[16] Anthony and DeVonna Costanza are the current owners of the property abutting Reach 16. Eric and Michaela Stern and Leland and Linda Richins are the current owners of the property abutting Reach 17. The Costanza, Stern, and Richins deeds all originated from the Crosgrove family.
[17] See, e.g., Boyle v. Baggs, 10 Utah 2d 203, 350 P.2d 622, 625 (1960) ("[I]t is also the policy of the law, insofar as consistent with principles of justice and equity, to keep land titles clear and to encourage alienability of property rather than the contrary.").
[18] See also RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.2 (2000) ("The intent to create a servitude may be express or implied. No particular form of expression is required.").
[19] See, e.g., Pedro v. Humboldt Cnty., 217 Cal. 493, 19 P.2d 776, 777 (1933) (pointing to the "nature and subject-matter of the agreement"); Stinchcomb v. Clayton Cnty. Water Auth., 177 Ga.App. 558, 340 S.E.2d 217, 220 (1986) ("[B]y the very nature of the agreement the covenant is of necessity not merely personal or collateral, but is such as runs with the land."); Moseley v. Bishop, 470 N.E.2d 773, 777 (Ind.Ct.App.1984) (implying intent for a covenant that required grantee to "maintain a drain" because of the importance of this drain to the grantor's land); Rogers v. Watson, 156 Vt. 483, 594 A.2d 409, 412 (1991) (implying intent for a covenant that prohibited use of the land for a mobile home because the covenant was "intimately connected" with the land (internal quotation marks omitted)); Albright v. Fish, 136 Vt. 387, 394 A.2d 1117, 1120 (1978) ("Some promises are so intimately connected with the land as to require the conclusion that the necessary intention for the running of the benefit is present absent language clearly negating that intent.").
[20] See Lawrence Berger, A Policy Analysis of Promises Respecting the Use of Land, 55 MINN. L. REV. 167, 219-20 (1970) ("[I]ntention and touch and concern have a very close relationship to each other. The intention requirement relates to the actual state of mind of the original parties to the transaction.... The touch and concern requirement, on the other hand, pertains to what the normal expectations of society would be as to whether this particular benefit or burden so relates to the owner in his capacity as owner that the average person would assume that the law would decree that such benefit or burden would accompany the ownership.").
[21] See Margot Rau, Note, Covenants Running with the Land: Viable Doctrine or Common-Law Relic?, 7 HOFSTRA L.REV. 139, 155 (1978) ("[C]ourts have combined [the touch and concern and intent] requirements, usually when they have had difficulty ascertaining the intention of the parties."). While Rau asserts that this is a misuse of the rules, id., we think it is a rational method of ascertaining the likely intentions of the parties in the absence of any express statement regarding whether the covenant is meant to run.
[22] 9 POWELL, supra note 15, § 60.04(3)(a), at 60-42 ("The touch and concern requirement is the only ... requirement ... which focuses on an objective analysis of the contents of the covenant itself rather than the intentions of and relationships between the parties.").
[23] William B. Stoebuck, Running Covenants: An Analytical Primer, 52 WASH. L. REV. 861, 875 (1977); see also, e.g., Greenspan v. Rehberg, 56 Mich.App. 310, 224 N.W.2d 67, 73 (1974) (intent implied in a covenant to maintain a right-of-way, even though an adjoining covenant in the deed was deemed personal); Soundview Woods, Inc. v. Town of Mamaroneck, 14 Misc. 2d 866, 872-73, 178 N.Y.S.2d 800 (N.Y.Sup.Ct.1958) (intent implied for covenant to run a water line), aff'd, 9 A.D.2d 789, 193 N.Y.S.2d 1021 (N.Y.App.Div. 1959); Peto v. Korach, 17 Ohio App. 2d 20, 244 N.E.2d 502, 505-06 (969) (intent implied for a covenant to maintain a sewer line).
[24] See 20 AM.JUR.2D Covenants, Conditions, and Restrictions § 34 (2005) ("Covenants which pertain to waters and ditches generally run with the land."); see also, e.g., Murphy v. Kerr, 5 F.2d 908, 911 (8th Cir.1925) (intent implied in covenant to pump water); Pizzolato v. Cataldo, 202 La. 675, 12 So. 2d 677, 680 (1943) (intent implied not only because ditch was to benefit the owners, but because it benefited the land itself).
[25] Neither party suggests any difference between the "canal purposes" set forth in the covenant in Reaches 16-17 and the "canal" right described in the Smith Decree for Reach 19. Our construction of the scope of the Water District's "canal" rights thus applies not only to Reaches 16-17 but also to Reach 19.
[26] The district court applied this reasoning only to Reach 19 because it had concluded that the Crosgrove Deeds imposed merely personal covenants that did not run with the land. Because we hold that the Crosgrove Deeds' covenants run with the land, the meaning of "canal" must be determined for all three Reaches. We assume that "canal" has the same meaning in the Crosgrove Deeds and the Smith Decree because those instruments contain no contrary indication.
[27] See WEBSTER'S NEW INT'L DICTIONARY 388 (2d ed. 1937) ("An artificial channel filled with water, designed for navigation, for irrigating land, etc.; as, the Erie Canal.").
[28] See WEBSTER'S THIRD NEW INT'L DICTIONARY 324 (1961) ("channel, watercourse").
[29] See WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 30 (1st ed. 1828) ("A passage for water; a water course; properly, a long trench or excavation in the earth for conducting water, and confining it to narrow limits; but the term may be applied to other water courses."); ROBERT GORDON LATHAM, A DICTIONARY OF THE ENGLISH LANGUAGE 347 (1882) ("Conduit or narrow passage for the transit of any fluid; artificial channel filled with water for the purpose of inland navigation."); NOAH WEBSTER & CHARLES MORRIS, UNIVERSAL HOME AND SCHOOL DICTIONARY OF THE ENGLISH LANGUAGE 78 (1916) ("an artificial watercourse; a pipe"); 2 OXFORD ENGLISH DICTIONARY 59 (1933) ("A pipe used for conveying water or liquid; also a tube, or tubular cavity. Obs .... An artificial water course constructed to unite rivers, lakes, seas, and serve the purposes of inland navigation."); WEBSTER'S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 388 (2d ed. 1958) ("1. A pipe or tube, as for conveying liquids. Obs. 2. Any watercourse or channel; specif., a strait; also, a long and narrow ornamental pond. Obs. 3. An artificial channel filled with water, designed for navigation, for irrigating land, etc.; as, the Erie Canal.").
[30] See Park City Utah Corp. v. Ensign Co., 586 P.2d 446, 450 (Utah 1978) (explaining that a written "judgment is subject to construction according to the rules that apply to all written instruments"); see also Swenson v. Erickson, 2000 UT 16, ¶ 11, 998 P.2d 807 ("Restrictive covenants that run with the land and encumber subdivision lots form a contract between subdivision property owners as a whole and individual lot owners; therefore, interpretation of the covenants is governed by the same rules of construction as those used to interpret contracts."); Pugh v. Stockdale & Co., 570 P.2d 1027, 1029 (Utah 1977) (noting that courts interpret words in a contract according to their "ordinary and usual" meanings).
[31] See 4 POWELL, supra note 15, § 34.12, at 34-136 ("When a conveyance is unclear as to the scope of the intended easement, the subsequent behavior of the parties can constitute a practical construction furnishing the missing details.").
[32] GEORGE THOMAS, THE DEVELOPMENT OF INSTITUTIONS UNDER IRRIGATION 107 (1920).
[33] Id. at 108-09.
[34] Id. at 208.
[35] See Salt Lake City v. Salt Lake City Water & Elec. Power Co., 24 Utah 249, 67 P. 672, 680 (1902); LEROY W. HOOTON, JR., UTAH LAKE & JORDAN RIVER WATER RIGHTS & MANAGEMENT PLAN 10 (1989), available at http://www.slcclassic.com/utilities/ pdf%20Files/utah&jordan.pdf.
[36] HOOTON, supra note 35, at 14.
[37] Compare WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 30 (1st ed. 1828) ("A passage for water; a water course; properly, a long trench or excavation in the earth for conducting water, and confining it to narrow limits; but the term may be applied to other water courses."), and ROBERT GORDON LATHAM, A DICTIONARY OF THE ENGLISH LANGUAGE 347 (1882) ("Conduit or narrow passage for the transit of any fluid; artificial channel filled with water for the purpose of inland navigation."), with NOAH WEBSTER & CHARLES MORRIS, UNIVERSAL HOME AND SCHOOL DICTIONARY OF THE ENGLISH LANGUAGE 78 (1916) ("an artificial watercourse; a pipe"), and 2 OXFORD ENGLISH DICTIONARY 59 (1933) ("A pipe used for conveying water or liquid; also a tube, or tubular cavity. Obs .... An artificial water course constructed to unite rivers, lakes, seas, and serve the purposes of inland navigation."), and WEBSTER'S NEW INT'L DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 388 (2d ed. 1958) ("1. A pipe or tube, as for conveying liquids. Obs. 2. Any watercourse or channel; specif., a strait; also, a long and narrow ornamental pond. Obs. 3. An artificial channel filled with water, designed for navigation, for irrigating land, etc.; as, the Erie Canal.").
[38] We apply the same analysis to the Reach 19 easement and to the Reaches 16-17 restrictive covenant. We see no reason why, at least in this case, the scope of reasonable technological improvements would differ under the easement or the covenants.
[39] See Hubble v. Cache Cnty. Drainage Dist. No. 3, 123 Utah 405, 259 P.2d 893, 896 (1953) ("[T]he law favor[s] changes and improvements for the benefit of the dominant estate so long as the manifest intent of the parties does not disallow the changes and the burden to the servient tenement is not increased."); Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148, 160 (1946) ("Plaintiff would not be exceeding its easement in improving its ditches provided the improvements are, under all the circumstances, made in a reasonable manner and they do not cause unnecessary injury to the servient owners."); see also Parris Props., L.L.C. v. Nichols, 305 Ga.App. 734, 700 S.E.2d 848, 854 (2010) ("[A] change in the manner, frequency, and intensity of use of the easement within the physical boundaries of the existing easement is permitted without the consent of the other party, so long as the change is not so substantial as to cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment." (internal quotation marks and emphasis omitted)); RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 (2000) ("The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude."); 25 AM.JUR.2D Easements and Licenses 84 (2004) ("[I]f the change is not in the kind of use, but merely one of degree imposing no greater burden on the servient estate, the right to use the easement is not affected."); 4 POWELL, supra note 15, § 34.12, at 34-142, 34-144 (noting that courts presume that easements may be expanded to permit "technological innovations" so long as the use is "reasonably foreseeable at the time of establishment of the easement").
[40] See also Valcarce, 961 P.2d at 313 ("[T]he trial court found that Fitzgeralds piping of the canal was a reasonable improvement, and we defer to that finding of fact.... The trial court found, and we agree, that Fitzgeralds improvement to the ditch enhances both the conveyance and the conservation of the water without materially changing the burden or adding any additional burdens to the Valcarce estate."); Harvey v. Haights Bench Irrigation Co., 7 Utah 2d 58, 318 P.2d 343, 347 (1957) (Worthen, J., plurality opinion) ("What is a reasonable manner for the company to improve a particular ditch is a question of fact to be decided after considering location of the ditch, the type and use of the property through which it flows, the amount of water it carries, the relative cost of the possible methods of waterproofing and all other facts and circumstances bearing on the question." (internal quotation marks omitted)); RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 cmt. c (2000) ("These conflicts frequently present difficult factual issues as to... whether the proposed change is reasonably necessary, whether it is of the sort that should have been contemplated by the parties, how much damage or interference is likely to ensue, and whether it is reasonable. Resolution of the conflict often demands a detailed inquiry into the particular facts and circumstances of the case, and the issues as to ... reasonableness of use, and extent of damage and interference are usually intertwined.").
[41] See Jackson v. Dabney, 645 P.2d 613, 615 (Utah 1982) ("A genuine issue of fact exists where, on the basis of the facts in the record, reasonable minds could differ on whether defendants conduct measures up to the required standard.").
[42] See also, e.g., Bd. of Comm'rs v. Ill. Cent. Gulf R.R., 379 So. 2d 838, 841 (La.Ct.App.1980) (comparing the impact of an easement expansion project with the relative costs of "alternate [construction] method[s]" that would have been less burdensome to the servient estate); Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910, 913 (1974) (evaluating the "relative burden to the servient tenement caused by the easement before and after" the easement holder altered its use of the easement).
[43] Draper Irrigation Company is ULIC's successor in interest to the easement across Lloyd and Lorraine Cummings' property, created by the Smith Decree, constituting Reach 19 of the canal. In 2001, Draper Irrigation transferred its interest to Draper City, who subsequently granted the interest to Metropolitan Water District for its aqueduct.
[44] The appellants similarly argue that Draper Irrigation abandoned its interests in Reaches 16-17. This claim fails under our holding that the Crosgrove Deeds conveyed fee simple interests to ULIC, Draper Irrigation's predecessor in interest. Our abandonment jurisprudence applies to easements, but not to fee interests in property. See W. Gateway Storage Co. v. Treseder, 567 P.2d 181, 182 (Utah 1977) ("It is well recognized that an easement or right of way may be abandoned." (emphasis added)).
[45] Id.; Harmon v. Rasmussen, 13 Utah 2d 422, 375 P.2d 762, 766 (1962) ("Neither filling in around [a] headgate for the purpose of preventing unwanted water being turned into [a] ditch, nor the claim that [a] ditch was not used for several years in succession is clear and convincing proof of [intent to abandon].").
[46] W. Gateway, 567 P.2d at 182 (explaining that "a right gained by conveyance may not be lost by non-use alone").
[47] Harmon, 375 P.2d at 766. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005191/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1317
JANET W. JONES,
Plaintiff - Appellant,
versus
NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES,
Division of Mental Health, Developmental Dis-
abilities and Substance Abuse Services,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CA-99-833-5-BR)
Submitted: August 23, 2001 Decided: August 29, 2001
Before WILKINS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Janet W. Jones, Appellant Pro Se. Dorothy Powers, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Janet W. Jones appeals the district court’s order granting
Appellee’s motion for summary judgment in her employment discrim-
ination action. We have reviewed the record and the district
court’s opinion and find no reversible error. Accordingly, we
affirm on the reasoning of the district court. See Jones v. North
Carolina Dep’t of Human Resources, No. CA-99-833-5-BR (E.D.N.C.
Feb. 14, 2001). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264310/ | 14 Cal.App.4th 1633 (1993)
18 Cal. Rptr.2d 426
THE PEOPLE, Plaintiff and Respondent,
v.
TIMOTHY ARNOLD ELLIOTT, Defendant and Appellant.
Docket No. E009536.
Court of Appeals of California, Fourth District, Division Two.
April 16, 1993.
*1635 COUNSEL
David J. Macher, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James E. Atkins, Carl H. Horst and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
TIMLIN, J.
Defendant appeals from his conviction by jury of one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b)) attended by a true finding (the truth of which had been admitted by defendant) that he had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a).[1]
On appeal, defendant raises only one contention: The trial court erred prejudicially by refusing to instruct the jury, at defendant's request, as to the asserted lesser related offense of being an accessory (either to a robbery or to a "lesser included" grand theft). We shall conclude that the trial court did not err in refusing to give the instruction in question and, consequently, we shall affirm in full the judgment entered below.
*1636 FACTS
At approximately 8 p.m. in the evening of January 30, 1991, Lucy Villapondo (Villapondo) had completed her shopping at the Redlands K-Mart and was returning to her car in the K-Mart parking lot. As she returned to her car, she noticed defendant and a woman (later identified as, and hereinafter referred to as, Powels) sitting on a parking lot "island" curb next to her car.
Villapondo unloaded her shopping cart and placed her packages in the trunk of her car. She then pushed her shopping cart over to the island on which defendant and Powels were sitting. Powels approached Villapondo and asked her for the time immediately followed by defendant who also approached Villapondo and asked her for the time. Villapondo told Powels and defendant what the time was, and the two of them started to walk away. Powels then bent over and cried out as though she was in pain. Villapondo glanced over at the couple, and then turned back to unlock her car door. At this moment, Powels and defendant rushed toward Villapondo.
Upon reaching Villapondo's right side, defendant reached across her body and grabbed her purse. Defendant then demanded that Villapondo give up her car keys. Villapondo refused to give up her car keys and started to scream. Defendant reached out and took a key ring with one key on it out of Villapondo's left hand.[2]
As defendant's struggle with Villapondo was unfolding, Villapondo felt Powels (who was standing next to Villapondo's left side) push something against Villapondo's left side and then heard Powels order Villapondo into the car. Villapondo broke away from the couple and quickly walked away, back across the parking lot to the K-Mart store screaming all the while.
Powels and defendant entered Villapondo's car defendant through the driver-side door and Powels through the passenger-side door. However, upon discovering that the key they had taken was not the car key, Powels and defendant left the car and fled into a nearby orange grove.
In the meanwhile, the Redlands Police Department had received a report of the incident in the parking lot. Redlands police immediately responded to the report and arrived at the K-Mart within a few moments. Very shortly thereafter, the police officers found defendant and Powels crouching down together under a tree in the orange grove, trying to hide. When found, Powels was in possession of her own purse within which was a black plastic sheath for a long, thin-bladed knife and an open pack of "generic" *1637 cigarettes. When found, Powels had $31.82 on her person and defendant had $20.05 on his person. Somewhat later, the police found Villapondo's purse in the same orange grove, located approximately 50 to 75 yards away from where Powels and defendant had been hiding.
A search of Villapondo's car by the Redlands police revealed a knife on the dashboard of the car and a "generic" cigarette on the floorboard of the car. Once Villapondo had had a chance to "inventory" her purse after getting it back from the police, she was able to determine that approximately $27 was missing from it.
Defendant was thereafter charged by information with one count of second degree robbery, which charge was attended by the allegation that he had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a). Before the jury trial was commenced, defendant waived a jury trial on the issue of his "prior" and admitted the truth thereof.[3]
A jury trial was then commenced as to the robbery charge brought against defendant. The evidence adduced by the People during the prosecution's case-in-chief comports with the above description of events. In his defense, defendant called Powels as a witness. Powels testified to the following effect:
(1) She had pled guilty to a robbery of Villapondo and had admitted to personally using a deadly or dangerous weapon in the commission of that robbery.
(2) Villapondo approached Powels and defendant as they were sitting in the K-mart parking lot. Powels asked Villapondo for the time to which Villapondo responded that it was 8 o'clock. Defendant asked Powels what Villapondo had said, but did not ask Villapondo directly for the time.
(3) Powels bent over as if she were in great pain so as to mask her movement in bringing out a knife from her pants.
(4) Having secured the knife, she accosted Villapondo and held the end of the knife handle against Villapondo's side while she demanded the keys to Villapondo's car. Powels had discussed none of this with defendant.
(5) Powels grabbed a key from Villapondo's hand and took Villapondo's purse from her other hand. While this was happening, defendant was looking *1638 bewildered by Powels's behavior but he remained standing by the "island" curb where he had been sitting with Powels originally.
(6) Powels got into the driver's side of Villapondo's car and placed both her purse and Villapondo's purse on the floorboard of the car. Defendant came running up to the car, yelling at Powels to get out of the car and trying to reach her to pull her out of the car. When defendant reached the car, Powels moved over to the car's passenger side and urged defendant to get into the car so that they could leave.
(7) Defendant put one knee in on the driver's side of Villapondo's car in an attempt to reach Powels to pull her from the car, but he never completely entered the car.
(8) Powels discovered that the key she had taken would not operate the car and turned to flee from the car. As she turned to leave the car, she grabbed one purse (her own) and defendant grabbed the other purse (Villapondo's). Powels thought that defendant thought that the purse he grabbed was hers (Powels's).
(9) Defendant and Powels fled from the parking lot with defendant running "about three car lengths" ahead of Powels. Powels caught up with defendant and grabbed Villapondo's purse from him. When they reached the orange grove across a street from the parking lot, Powels "rifled" Villapondo's purse taking a $20 bill for herself and giving defendant the "loose stuff [change] that was in my hand." Defendant had some money of his own with him at the time.
(10) Defendant and Powels then tried to leave the orange grove, only to discover that the police had mounted a search for them in the area. The couple returned to the orange grove, where they tried to hide. This is where they were when they were found by the police.
(11) Powels, on cross-examination, identified the $20.00 bill found on defendant's person at the time of his arrest as the bill she had taken from Villapondo's purse.
Following the close of evidence, the jury was instructed by the trial court. Included among the instructions was the instruction that grand theft was a lesser included felony of the charged robbery. The trial court refused the defense request that the jury be instructed that defendant could be found guilty of the lesser related crime of being an accessory to Powels's crime(s). After deliberations, the jury returned a guilty verdict against defendant, *1639 finding him guilty of second degree robbery. Thereafter, at the sentencing hearing, defendant was sentenced to a midterm of three years of imprisonment in state prison, enhanced by a five-year enhancement in accord with defendant's previously admitted section 667, subdivision (a) "prior," for a total sentence of eight years of imprisonment in state prison.
Additional facts will be referred to, as needed, in the discussion which follows.
DISCUSSION
(1a) As noted previously, defendant's sole contention on appeal is that the trial court prejudicially erred by refusing to instruct the jury, at defendant's request, as to the asserted lesser related offense of being an accessory to the Villapondo robbery (or, should the jury so find, to the Villapondo grand theft). To determine the merits of this contention, it is necessary to understand and apply the legal requirements surrounding the giving of "lesser related instructions" as they were declared and articulated by our Supreme Court in People v. Geiger (1984) 35 Cal.3d 510 [199 Cal. Rptr. 45, 647 P.2d 1303] (hereinafter cited simply as Geiger).
In People v. Farrow (1993) 13 Cal. App.4th 1606 [16 Cal. Rptr.2d 844], this court had recent occasion to examine Geiger:
(2) "Geiger, in general terms, described `the circumstances in which a defendant is entitled to instructions on related, but not necessarily included, offenses' in the following manner: (1) `... the first prerequisite to receiving instructions on lesser related offenses must be the existence of some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged'; (2) `Second, the offense must be one closely related to that charged and shown by the evidence.... Although some evidence offered by the People or the defendant may indicate that the defendant has committed a crime other than that charged, instructions regarding that crime need not be given unless the evidence is also relevant to and admitted for the purpose of establishing whether the defendant is guilty of the charged offense'; and (3) `Finally, the instructions must be justified by the defendant's reliance on a theory of defense that would be consistent with a conviction for the related offense. Thus, the instruction need not be given if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi, or the only issue is identity, unless the defendant argues that the evidence at most *1640 shows guilt only of the related offense.' (35 Cal.3d at pp. 531-532.)" (Farrow, supra, 13 Cal. App.4th at p. 1619.)[4]
(1b) As we discuss below, a review of the record on appeal reveals that the "first Geiger prong" is not met in this case. (3) (See fn. 5.) That is, there is no evidentiary basis in this case upon which a rational juror could have reasonably concluded that defendant was guilty only of being an accessory to the crime(s) committed by Powels.[5]
(1c) The only possible evidence from which a juror could even conceivably draw the conclusion that defendant was only an accessory to Powels's crime(s) is that of Powels's testimony itself Villapondo's testimony was such that defendant was either (if Villapondo was believed) guilty of the charged robbery or (if Villapondo was not believed) guilty of nothing at all. Thus, the evidentiary focus during the remainder of our discussion is on Powels's testimony. Further, our focus on Powels's testimony must be undertaken in light of the statutory definition of "accessory."
The crime of being an accessory is defined in section 32 as follows:
"Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."
Powels's testimony, when analyzed with an eye to section 32, reveals the following:
(1) There simply is no evidence that defendant ever "harbored" Powels within the meaning of section 32.
*1641 (2) Similarly, there simply is no evidence that defendant ever "concealed" Powels within the meaning of section 32. According to Powels, the couple "Crawled in the dirt. Tried to hide.... I was I believe I was trying to hide under a tree." The most that can be gleaned from this evidence is that defendant was trying to hide with Powels there is no evidence that he tried to "conceal" her.[6]
(3) Finally, there is no evidence that defendant tried to "aid" Powels within the meaning of section 32. Our conclusion in this regard derives from our understanding of the meaning of the word "aids" as it is used in section 32. (4) (See fn. 7.) The word "aids" has not been specifically defined by either statute or case authority in the context of section 32; however, that word has been defined by case authority in the context of section 31 (in the context of defining the meaning of the phrase "aiding and abetting") and we take that same meaning to apply in the context of section 32.[7]
(5) The word "aids" means "to assist; to supplement the efforts of another," while the word "abet" means merely to incite or encourage. (People v. Bond (1910) 13 Cal. App. 175, 185 [109 P. 150], italics added.)[8] This understanding that being an accessory ("one who aids") requires something more than mere encouragement or incitement is reflected in the analysis in People v. Duty (1969) 269 Cal. App.2d 97, at page 104 [74 Cal. Rptr. 606]: "The gist of the offense described by section 32 of the California Penal Code is that the accused [render] [a]ny kind of overt or affirmative assistance to a known felon .... The test of an accessory after the fact is that, he renders his principal some personal help to elude punishment, *1642 the kind of help being unimportant. [Citation.]" (Italics added; internal quotation marks omitted.)[9]
(1d) The record in this case is bereft of any evidence that defendant actually "aided" (as we have herein defined and discussed the word) Powels within the meaning of section 32. The most that can be said of defendant is that he encouraged Powels to run away and that he, thereafter, hid with her. This does not render him an accessory to Powels's crime(s) within the meaning of section 32.
In summary: (1) There was no evidentiary basis in this case upon which a rational juror could have reasonably concluded that defendant was guilty, at most, of being an accessory to the crime(s) committed by Powels against Villapondo; (2) consequently, the "first Geiger prong" was not met in this case with respect to the trial court's obligation to give a "lesser related instruction" on guilt as an accessory; and (3) thus, the trial court did not err in refusing to instruct the jury as to the crime of being an accessory.
DISPOSITION
The judgment entered below is affirmed in full.
Ramirez, P.J., and Dabney, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 15, 1993.
NOTES
[1] Unless otherwise indicated, all statutory citations refer to the Penal Code.
[2] Villapondo was holding several key rings in her left hand at this moment.
[3] Powels was charged by the same information with one count of second degree robbery, which charge was attended by the allegation that she had personally used a deadly or dangerous weapon (a knife) in the commission of the robbery, within the meaning of section 12022, subdivision (b). Before the matter came to trial, Powels pled guilty to the robbery and admitted the "personal use enhancement."
[4] Geiger also established the rule of law that "there is no obligation to instruct on related offenses in the absence of a request by the defendant for such instructions." (35 Cal.3d at p. 530.) In this case, there is no question but that defendant did request that the jury be instructed as to defendant's guilt as an accessory to Powels's crime(s) as a lesser related offense.
[5] In assessing the sufficiency of the evidence to warrant the giving of an instruction on a "lesser," we are guided by the general principles set forth in People v. Glenn (1991) 229 Cal. App.3d 1461, 1465 [280 Cal. Rptr. 609]: "The trial court should not measure the substantiality of the evidence by undertaking to weigh the credibility of witnesses, a task exclusively relegated to the jury. The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. As an obvious collorary, if the evidence is minimal and insubstantial the court need not instruct on its effect. Any doubts about the sufficiency of the evidence to warrant a requested instruction should be resolved in favor of the defendant." (Internal quotation marks, elipses and citations omitted.)
[6] The testimony of the police officer who found the couple in the orange grove is not to the contrary: "The defendant was crouched underneath a tree with [a] female trying to hide."
[7] Section 31 and section 32 are interrelated in that they are both constituent elements of a single legislative scheme that portion of the Penal Code which defines the status of various parties to crime (tit. 2, pt. 1, of the Pen. Code, "Parties to Crime"). One of the fundamental rules of statutory construction is that interrelated stautory provisions should be harmonized and that, to that end, the same word or phrase should be given the same meaning within the interrelated provisions of the law. (See, e.g., Gruschka v. Unemployment Ins. Appeals Bd. (1985) 169 Cal. App.3d 789, 792 [215 Cal. Rptr. 484]; and In re Mark K. (1984) 159 Cal. App.3d 94, 106 [205 Cal. Rptr. 393].)
[8] Accord: People v. Carlson (1960) 177 Cal. App.2d 201, at page 205 [2 Cal. Rptr. 117]; People v. Ellhamer (1962) 199 Cal. App.2d 777, at page 781 [18 Cal. Rptr. 905], disapproved by People v. Beeman (1984) 35 Cal.3d 547, at page 557 [199 Cal. Rptr. 60], on another ground; In re Elisabeth H. (1971) 20 Cal. App.3d 323, at page 331 [97 Cal. Rptr. 565]. See also, People v. Beeman, supra, 35 Cal.3d at page 556, stating that "aider and abettor" liability requires that one aid and (not "or") abet thus highlighting the fact that the two words have a distinct and separate meaning.
[9] This emphasis on identifying "overt assistance" as the substance of the crime of being an accessory is not inconsistent with the discussion in People v. Gunn (1987) 197 Cal. App.3d 408, at pages 415-416 [242 Cal. Rptr. 834], to the effect that one can be liable as an accessory to a felony based on a continuous course of conduct as opposed to a single, identifiable and agreed-upon act. All we are saying is that the activities of the accused, whether a single act or an entire course of conduct, must amount to overt assistance as opposed to mere incitement or encouragement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264336/ | 14 Cal.App.4th 1507 (1993)
18 Cal. Rptr.2d 407
DAVID SHARP, Plaintiff and Appellant,
v.
CIVIL SERVICE COMMISSION OF LOS ANGELES COUNTY et al., Defendants and Respondents.
Docket No. B059289.
Court of Appeals of California, Second District, Division Four.
April 15, 1993.
*1508 COUNSEL
Wohlner, Kaplon, Phillips, Vogel & Young and Robert D. Vogel for Plaintiff and Appellant.
Leland C. Dolley, City Attorney, Burke, Williams & Sorenson, Virginia R. Pesola and M. Lois Bobak for Defendants and Respondents.
OPINION
HOFFMAN, J.[*]
Petitioner and appellant David Sharp (Sharp) appeals from the judgment of the court below denying his petition for writ of mandate in which he sought to set aside the action of respondent, the Los Angeles County Civil Service Commission (the Commission), in adopting the findings and conclusions of a hearing officer it appointed to hear Sharp's grievance or, alternatively, to compel respondent, the City of El Segundo (the City), to explain or substantiate its selection of another person to fill the vacant fire department battalion chief vacancy. We affirm the judgment.
STATEMENT OF THE CASE
In the fall of 1989, the City announced a vacancy in the City's fire department for the position of battalion chief. Fire department personnel are *1509 within the City's classified service and the recruitment, employment and promotion of such personnel is governed by the personnel merit system adopted by City Ordinance No. 586.
Pursuant to section 9(A) of ordinance No. 586, the City held a competitive promotional examination for the vacant battalion chief position. Three candidates, including Captain Eric Moore (Moore) and Sharp, applied for the examination. Moore and Sharp successfully completed the examination and were placed on an eligibility list certified by the City's personnel department. Sharp received a score of 88 on the competitive examination, and Moore received a score of 84. The City's fire chief interviewed both Sharp and Moore and recommended to the city manager that Moore be appointed to the vacant battalion chief position. The city manager accepted the fire chief's recommendation and appointed Moore to fill the vacancy.
On November 25, 1989, Sharp filed a grievance with the City, alleging that, since he was the highest ranked candidate, he should have been promoted to the vacant battalion chief position. Sharp also alleged in a separate letter that he was entitled to justification regarding the City's selection. The City denied Sharp's grievance, finding that all relevant personnel rules and regulations were followed during the process to fill the vacancy, and that there is no requirement that the City disclose the basis for selecting one candidate over another on the certified list of eligible candidates.
Thereafter, Sharp appealed the denial of his grievance to the Commission. On April 3, 1990, the parties were advised that Mr. Stephen B. Grant (Mr. Grant) was appointed by the Commission to act as the hearing officer for Sharp's appeal. The City and Sharp stipulated that the only issue to be determined by Mr. Grant was: "Whether the appointing authority of the City of El Segundo, has an obligation under Ordinance 586, section 9, as codified under section 2.28.120 of the City's Municipal Code, to explain or substantiate the selection of one eligible candidate over another, from a certified eligibility list, for a promotion to a vacant position in the classified service."
After considering the documentary evidence and legal authority presented, Mr. Grant found the City's regulations do not require, either expressly or by implication, an explanation or other substantiation concerning the reasons for selecting a candidate from an eligibility list.
Sharp appealed to the Commission. On August 1, 1990, the Commission reviewed and adopted Mr. Grant's findings and conclusions and denied Sharp's appeal.
*1510 On October 26, 1990, Sharp filed a petition for writ of mandate in the superior court seeking to set aside the Commission's action or, alternatively, to compel the City to explain or substantiate its selection of Moore to fill the battalion chief vacancy. Following a hearing on April 26, 1991, the writ was denied.
CONTENTIONS
I. The hearing officer erred in concluding that section 9(A) of the City's personnel regulations does not require an explanation to a candidate who scored the highest on a competitive examination when another is chosen instead for promotion.
II. Because the hearing officer improperly addressed and decided issues the City and Sharp reserved for later determination, his decision is null and void.
DISCUSSION
I. The City's Personnel Regulations Do Not Require an Explanation to an Unsuccessful Candidate for Promotion.
Sharp concedes in his appellant's opening brief that "although merit and fitness are to be ascertained insofar as practicable by competitive examination, the City is not obligated to select the individual who scores the highest on the competitive examination for the promotion." (1) Sharp argues, however, that when the highest scoring candidate is not chosen, the City must demonstrate it did not abuse its discretion in making the appointment by explaining or substantiating its decision. We disagree.
Public employment in California is held by statute, not contract. (Kemmerer v. County of Fresno (1988) 200 Cal. App.3d 1426, 1432 [246 Cal. Rptr. 609].) Thus, the question whether Sharp was entitled to an explanation from the City regarding its decision to appoint Moore, rather than Sharp, to the vacant battalion chief position, must be examined in light of the City's merit or civil service rules.
Section 9(A) of the City's personnel merit system provides that: "Appointments and promotions to vacant positions in the Classified Service shall be based on merit and fitness to be ascertained insofar as practicable by competitive examination. Appointments and promotions shall be made by the City Manager upon recommendation of the various Department Heads."
Section 9(B) provides that: "When appointments and promotions are to be made to vacancies in the Classified Service, the names of the highest eligible *1511 persons willing to accept appointment shall be transmitted by the Personnel Officer to the Department Head in the order in which they appear on the list as follows: For one vacancy the names of three (3), ... and appointment shall be limited to any of these eligible persons." (Italics added.)
These regulations establish the classic "rule of three" which permits the appointing authority to choose any one of the top three candidates from a certified eligibility list to fill a civil service vacancy. (See Wilson v. Ostly (1959) 173 Cal. App.2d 78, 84 [343 P.2d 349].) As long as individuals on an eligibility list are found by their superiors to be of equal ability, the appointing authority has a "clear right" to choose from among those on the list without respect to their ranking. (Cf. Dawn v. State Personnel Board (1979) 91 Cal. App.3d 588, 591-592 [154 Cal. Rptr. 186].)
In Dawn v. State Personnel Board, supra, 91 Cal. App.3d 588, a male candidate, who ranked third on an eligibility list created by a promotional examination, challenged the appointment of a female candidate ranked sixth on the eligibility list, alleging that the appointment was discriminatory. The court, in upholding the appointment, explained that choosing one candidate over another does not deny to those not chosen any right to advance on the basis of merit and ability. (Id. at p. 592.) The court did not state or imply that, in exercising its discretion to fill a vacancy from an eligibility list, the appointing authority is required to justify or explain its choice.
In arguing that, as a matter of law, the regulations require an explanation be given an unsuccessful candidate for promotion, Sharp cites Allen v. McKinley (1941) 18 Cal.2d 697 [117 P.2d 342]; Rhodehamel v. Civil Service Board (1941) 18 Cal.2d 709 [117 P.2d 349]; Berkeley Police Assn. v. City of Berkeley (1981) 117 Cal. App.3d 109 [172 Cal. Rptr. 466]; and Wilson v. Ostly, supra, 173 Cal. App.2d 78. In each of the cited cases, the issue was whether and under what circumstances an appointing authority could hold "open," rather than promotional, examinations to fill a vacancy in the civil service when the relevant civil service regulations provided that such vacancies should be filled by promotion "insofar as practicable." None of these cases supports Sharp's argument.
While in the instant case, section 9(A) of the City's personnel regulations provides that "[a]ppointments and promotions to vacant positions in the Classified Service shall be based on merit and fitness to be ascertained insofar as practicable by competitive examination" the regulations do not end there. (Italics added.) Section 9(B) provides that, when there is one vacancy, the names of the three highest eligible persons must be sent by the personnel officer to the department head and that the appointment must be *1512 limited to a selection from "any of these eligible persons." (Italics added.) When the "insofar as practicable" language of section 9(A) is read in conjunction with section 9(B), the regulation clearly gives discretion to the appointing authority to promote any one of the top three candidates to an existing vacancy.
As the hearing officer observed, if we were to accept Sharp's interpretation of section 9, the regulation would be the "rule of one," rather than the "rule of three," as it has come to be known in civil service parlance. (See Wilson v. Ostly, supra, 173 Cal. App.2d at p. 85.) Sharp has not cited this court to any authority, and we have found none, from which we can conclude that when, as here, an appointment is made in conformity with this "rule of three," it must be explained or substantiated.
Sharp proffered no evidence that the city manager acted corruptly or arbitrarily in selecting Moore instead of Sharp. Mr. Grant expressly stated there was no evidence of a conflict of interest or other improper "taints" on the selection process giving rise to an abuse of discretion. Absent such showing, the discretion exercised by the appointing authority must be upheld. (Cf. Berkeley Police Assn. v. City of Berkeley, supra, 117 Cal. App.3d at p. 112.)
II. The Hearing Officer Addressed and Decided Only Those Issues Presented to Him by the Parties.
Sharp contends that, because Mr. Grant addressed and decided issues which the parties expressly agreed to reserve for later adjudication, his decision is null and void. That contention is also lacking in merit.
Prior to submitting the matter to Mr. Grant for determination, Sharp and the City agreed that the following three issues were in dispute:
1. Whether the appointing authority of the City has an obligation under section 9 of ordinance No. 586, to explain or substantiate the selection of one eligible candidate over another from a certified eligibility list;
2. Whether the appointing authority abused its discretion in appointing Moore over Sharp; and
3. The reasons Moore was selected over Sharp.
The parties also agreed in a joint statement summarizing the issues in dispute that, if "the hearing officer assigned to this matter agreed," the first issue would be decided before the remaining two issues.
*1513 Sharp argues that despite the explicit and limited submission, in the hearing officer's summary of the evidence, proposed findings of fact, conclusions of law and proposed recommendation (the Recommendation), he stated a number of times that "Sharp had not contended and/or proven the City had abused its discretion in not choosing him to fill the promotional vacancy."
In reviewing the Recommendation by Mr. Grant, this court has found only one instance where the hearing officer stated he found no abuse of discretion ("In and of itself, selecting number two over number one is not an abuse of discretion"). (Italics added.) Otherwise, the Recommendation contains only an accurate description of Sharp's contention ("That the City's failure to provide that explanation, is an abuse of discretion and requires that the promotion of Moore be rescinded") and an allusion to such an abuse of discretion ("I would have no hesitation in finding an abuse of discretion if I found something wrong in the selection process"). These few remarks by the hearing officer in his 10-page Recommendation do not require its nullification.[1]
At page 2 of the Recommendation, Mr. Grant noted the parties had agreed on the scope of the issues to be decided and expressly stated that his review was limited to a determination of whether section 9, of ordinance No. 586, requires that the City offer an explanation when it exercises its discretion to appoint from an eligibility list.
The factual findings and conclusions of law set forth by Mr. Grant in the Recommendation are as follows:
"VI. PROPOSED FINDINGS OF FACT
"1. I find that the Appellant is not entitled to an explanation by the City of the reasons for his non-appointment to the position of Battalion Chief.
"2. I find that the Appellant is not entitled to any substantiation by the City for the reasons for his non-appointment to the position of Battalion Chief.
"3. I find that the Appellant has not sustained the burden of proof in this matter.
*1514 "VII. PROPOSED CONCLUSIONS OF LAW
"1. The City is not required to explain the reasons for Appellant's non-appointment to the position of Battalion Chief.
"2. The City is not required to substantiate the reasons for Appellant's non-appointment to the position of Battalion Chief.
"3. The City has fully complied with all requirements of its promotional rules and procedures in its non-appointment of Appellant to the position of Battalion Chief."
In light of the hearing officer's express statement in the Recommendation that his review was limited to a determination of whether section 9 of ordinance No. 586 requires the City to offer an explanation when it exercises its discretion to appoint from an eligibility list, this court interprets proposed conclusion of law No. 3 to address only that issue. As so interpreted, the Recommendation properly reflects the hearing officer's determination of the single question he was to decide.
DISPOSITION
The judgment denying petitioner Sharp's petition for writ of mandate is affirmed.
Woods (A.M.), P.J., and Vogel (C.S.), J., concurred.
NOTES
[*] Judge of the Municipal Court for the Los Angeles Judicial District sitting under assignment by the Chairperson of the Judicial Council.
[1] The cases Sharp submits, in support of his theory that the hearing officer's decision must be vacated because he decided unsubmitted issues, pertain to arbitration hearings and are not here relevant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264338/ | 14 Cal.App.4th 1137 (1993)
18 Cal. Rptr.2d 274
THE PEOPLE, Plaintiff and Respondent,
v.
JEFFERY BURNELL HEALY, Defendant and Appellant.
Docket No. B058569.
Court of Appeals of California, Second District, Division Six.
April 1, 1993.
*1138 COUNSEL
Jeffery Burnell Healy, in pro. per., and Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, William T. Harter and Sharon Wooden Richard, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
GILBERT, J.
Defendant Jeffery Burnell Healy was charged with numerous violations of Penal Code[1] section 273.5, subdivision (a), corporal injury to victims, Rhodona B., and Laura L. The charges pertaining to Rhodona B. *1139 took place over a period of nearly a year and involved frequent and brutal beatings causing severe injuries. Healy was also charged with torturing Laura L. in violation of section 206.
Over a period of approximately two weeks Healy battered Laura L. daily. He split her lips, broke her ribs, and stomped on her. He struck her in the jaw, back, arms, neck repeatedly. He flung her in the air so that she landed on the back of her head on the floor. She sustained a fractured jaw, ankle fractures, multiple rib fractures and bruises to her face and torso.
We hold, among other things, that acts of abuse against a cohabitant or a spouse occurring over time may be charged as separate offenses.
We also hold that acts of torture, committed for sadistic purposes do not require a finding of sexual abuse.
[[/]][*]
[[FACTS]][*]
DISCUSSION
I.
(1) Healy contends section 273.5 is a continuing course of conduct offense. Section 273.5, subdivision (a) provides in part: "Any person who wilfully inflicts upon any person of the opposite sex with whom he or she is cohabiting ... corporal injury resulting in a traumatic condition, is guilty of a felony...."
Healy therefore argues the prosecutor may charge only one count of spousal or cohabitant abuse for each victim. He relies upon People v. Thompson (1984) 160 Cal. App.3d 220, 224-225 [206 Cal. Rptr. 516], holding that spousal abuse, like child abuse, is a crime of continuous conduct for purposes of a jury unanimity instruction, CALJIC No. 17.01. Healy also relies upon decisions discussing the continuous conduct crimes of pandering or pimping. (People v. White (1979) 89 Cal. App.3d 143, 151 [152 Cal. Rptr. 312]; People v. Lewis (1978) 77 Cal. App.3d 455, 461 [143 Cal. Rptr. 587, 3 A.L.R.4th 1185].)
We disagree that People v. Thompson, supra, 160 Cal. App.3d 220, restricts the prosecutor to charging one count of spousal abuse where, as here, *1140 the defendant inflicted multiple batteries against a victim over time. Section 954 permits a prosecutor to charge "two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts...." Thompson did not concern the prosecutor's power to charge multiple offenses where the victim has suffered multiple criminal acts over time. Also, it did not directly concern a limitation upon the number of convictions a defendant could suffer.
As the parties agree, Thompson concerned the issue of a jury unanimity instruction, CALJIC No. 17.01, where the prosecutor charged only one count of section 273.5 but the victim testified to multiple acts of abuse. Thompson ruled that section 273.5 contemplated a continuous course of conduct over time where each act might not be criminal but the "cumulative outcome" was criminal. (People v. Thompson, supra, 160 Cal. App.3d at p. 225.) Thompson did not concern the prosecutor's power to charge multiple acts of abuse where, as here, each battery satisfied the elements of section 273.5 and constituted a crime. "`... There is a fundamental difference between a continuous crime spree and continuous conduct resulting in one specific offense....'" (People v. Melendez (1990) 224 Cal. App.3d 1420, 1429 [274 Cal. Rptr. 599].) The prosecutor could properly charge and Healy could be properly convicted of multiple violations of section 273.5, Thompson notwithstanding.
People v. White, supra, 89 Cal. App.3d 143, and People v. Lewis, supra, 77 Cal. App.3d 455, do not aid Healy. In White, the court reasoned that the offense of pandering was committed once a female became an inmate in a house of prostitution and committed a single act of prostitution. (White, supra, at p. 151.) Lewis ruled that pimping was committed once the defendant derived support from a prostitute's sexual acts, regardless of the number of her acts. (Lewis, supra, at p. 461.) These decisions are not helpful to the analysis here because the offenses are of a different nature.
II.
(2) Healy next contends his torture conviction must be reversed because the evidence is insufficient to show that he acted for persuasive or sadistic purposes.
Section 206 provides in part: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of ... persuasion, or for any sadistic purpose, inflicts great bodily injury ... upon the person of another, is guilty of torture." The trial court found that Healy acted for persuasive or sadistic purposes, "if not both."
*1141 Healy points to the prosecutor's argument that the infliction of injury was for the purpose of exercising control over Laura. He cites People v. Steger (1976) 16 Cal.3d 539, 548 [128 Cal. Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206], for the proposition that injury inflicted for the purpose of controlling another person's behavior does not constitute torture.
Healy misreads Steger. There, the defendant was convicted of the first degree murder of her stepdaughter by torture. (§ 189.) The court held that torture requires "... a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain." (People v. Steger, supra, 16 Cal.3d at p. 546.)
The evidence, however, showed that the defendant was a tormented woman, continually frustrated by her inability to control her stepchild's behavior. The beatings she gave to the child were an irrational and unjustifiable attempt at discipline, but they were not a willful, deliberate or premeditated attempt to inflict extreme and prolonged pain. (16 Cal.3d at p. 548.) Finding insufficient evidence of torture, the court modified the judgment to reduce the degree of the crime to murder in the second degree.
Steger stands only for the proposition that the infliction of pain must be willful, deliberate and premeditated. It does not rule out a conviction for torture where pain is inflicted to control another's behavior.
This is not the case of a frustrated parent overreaching in an attempt to control a child's behavior. This case involves two adults, neither one of whom needs to be disciplined or controlled by the other. Here, there is ample evidence Healy acted with the willful, deliberate and premeditated intent to inflict extreme and prolonged pain.
Healy told Laura she never had any real hardship in her life, she was wasting potential because of it, she needed someone to help her to realize her potential, he knew how she could "speed up the process," and that "he needed to create some hardship" to get her to listen to him. That Healy would warn Laura not to make any noise during the beatings for fear a neighbor would call the police also shows the willful, deliberate and premeditated nature of the assault.
Moreover, there was substantial evidence to support the trial court's finding that Healy inflicted pain for sadistic purposes. Healy contends that there must be some evidence of sexual abuse in order to find that the defendant acted with sadistic purposes. (Citing People v. Pensinger (1991) 52 Cal.3d 1210, 1239 [278 Cal. Rptr. 640, 805 P.2d 899]; People v. Bittaker (1989) 48 Cal.3d 1046, 1063-1066, 1101 [259 Cal. Rptr. 630, 774 P.2d 659].) *1142 Although the facts recited in the cases relied on by Healy do contain an element of sexual abuse, the cases do not require such facts to sustain a finding that the defendant acted with sadistic purpose. In fact, the court in Pensinger stated, "The jury could infer a sadistic intent to give pain to punish [the victim] for crying." (Pensinger, supra, at p. 1240.)
Sadism has been defined as "[a] form of satisfaction, commonly sexual, derived from inflicting harm on another." (Black's Law Dict. (5th ed. 1979) p. 1198.) Thus, although sadistic pleasure is commonly sexual, a sexual element is not required. Here, the trial court could reasonably have found that Healy derived a perverse pleasure from beating Laura. Laura did nothing to provoke the beatings, and testified Healy would "seem content" after he kicked or hit her.
[[III.-VIII.]][*]
With the exception of certain great bodily injury enhancements that are reversed, in all other respects the judgment is affirmed.
Stone (S.J.), P.J., and Yegan, J., concurred.
The petitions of both respondent and appellant for review by the Supreme Court were denied July 1, 1993.
NOTES
[*] Pursuant to rule 976.1 of the California Rules of Court, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].
[1] All further statutory references are to the Penal Code unless otherwise specified.
[*] See footnote, ante, page 1137. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264342/ | 14 Cal.App.4th 1083 (1993)
17 Cal. Rptr.2d 789
JOHN TENWOLDE, Plaintiff and Respondent,
v.
COUNTY OF SAN DIEGO, Defendant and Appellant.
Docket No. D014635.
Court of Appeals of California, Fourth District, Division One.
March 30, 1993.
*1085 COUNSEL
Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, Deborah L. Peterson-Lee and Morris G. Hill, Deputy County Counsel, for Defendant and Appellant.
Georgiou & Tosdal and Thomas Tosdal for Plaintiff and Respondent.
OPINION
FROEHLICH, J.
The County of San Diego (County) appeals a judgment requiring it to indemnify Sheriff Lieutenant John Tenwolde (Tenwolde) for attorney fees awarded against him in an underlying lawsuit, California Common Cause v. Duffy (1987) 200 Cal. App.3d 730 [246 Cal. Rptr. 285] (hereafter Common Cause). By special verdict, a jury found (1) Tenwolde was represented by the County in the Common Cause suit; (2) the County was requested in writing to defend him; and (3) Tenwolde's actions for which he was found liable were within the scope of his employment. The County contends no substantial evidence supports the three jury findings and the court abused its discretion by finding the indemnity suit ripe for adjudication. We reverse on the grounds the County did not represent Tenwolde and should not, as a matter of public policy, be required to indemnify him for damages arising from illegal political activity.
FACTUAL AND PROCEDURAL BACKGROUND
Tenwolde joined the sheriff's department in 1970. He worked his way through the ranks and was ultimately promoted to lieutenant in command of the sheriff's public affairs division in October 1984. In that position, Tenwolde's job was to inform the public of the department's crime-related and *1086 crime-prevention-related activities. Tenwolde reported to Sheriff John Duffy.
On February 8, 1985, Duffy told Tenwolde he planned to distribute strongly worded postcards encouraging Chief Justice Rose Bird to resign.[1] The postcards were produced by the Crime Victims for Court Reform, a private political committee, and were designed to be mailed by citizens seeking Bird's resignation or ultimate defeat on retention. The cards were to be available by request at public counters of sheriff's facilities and distributed through deputies. Duffy said the project would be "a controversial undertaking, an educational process ... that some may consider ... political, but ... was not political [because] the confirmation vote for the chief justice was ... nearly two years away." Tenwolde's job was to inform the public of the availability of the postcards.
Tenwolde distributed about 100 postcards, both on and off duty, and responded to media inquiries. When the supply of postcards was depleted, Tenwolde dispatched a deputy to Los Angeles for additional cards.
In response to media attention and a request by the American Civil Liberties Union that the distribution stop, Duffy and his special assistant, Attorney Janet Houts (Houts), met with County Counsel Lloyd Harmon (Harmon). Anticipating a suit, Harmon told Houts the Office of County Counsel would not represent Duffy. County counsel considered the postcard activities to be illegal political activity not within the scope of employment.
On February 19, California Common Cause and individual taxpayers (collectively Taxpayers) filed a complaint seeking declaratory and injunctive relief against Duffy and "Does" to halt the postcard distribution. Houts forwarded the complaint to county counsel on February 25 with a letter *1087 stating: "It is requested that you defend this action and represent the above named party [Duffy] and any Does which may enter into this complaint." Houts received a verbal refusal.
Tenwolde was served as a Doe defendant on February 28 and gave Houts a copy of the summons and complaint. After speaking with Undersheriff Richard Sandberg, Tenwolde called a peace officers' legal defense association for representation. Sandberg then told Tenwolde "Sheriff Duffy passed word to [Tenwolde] that [he] would be covered by the [C]ounty in terms of legal representation." Houts believed she telephoned county counsel requesting it represent Tenwolde and the request was denied.
On February 26 Duffy agreed not to distribute postcards, and the Taxpayers dropped their application for a temporary restraining order.
On March 14, 1986, the court granted summary judgment for the Taxpayers on their declaratory relief claim, finding most of the activity was an illegal expenditure of public funds and personnel on political campaigning. Following entry of judgment, the Taxpayers successfully moved for costs and attorney fees. The court found Duffy and Tenwolde jointly and severally liable in the amount of $14,127.09. Both sides appealed the award, which we affirmed as modified for a sum of $18,804, noting the Taxpayers were also entitled to attorney fees on appeal. (Common Cause, supra, 200 Cal. App.3d at p. 756.)
The court awarded the Taxpayers $11,500 for fees on appeal. On July 20, 1988, Tenwolde and Duffy jointly executed promissory notes to third party lenders totaling $36,000 and paid Taxpayers $33,675 of the proceeds in satisfaction of judgment. Tenwolde filed this action seeking indemnity under Government Code[2] sections 825 and 825.2[3] on April 7, 1989.
At trial, Tenwolde testified the goal of the public affairs division is to "maximize the flow of relevant department information to the public through *1088 as much of the appropriate news media as possible" without disrupting the sheriff's primary responsibilities or divulging confidential information. Tenwolde stated he did not believe making the postcards available to the media and public was prohibited political activity. He thought his actions were "conforming to the expectations of [his] employer" and the public affairs division customarily commented on many controversial topics.[4] According to department regulations, Tenwolde could not contact county counsel directly but was required to request legal representation from the County via the legal adviser or the undersheriff.
By special verdict, the jury found Tenwolde was represented by the County, a request was made in writing by or on behalf of Tenwolde to the County to defend him, and Tenwolde was acting within the scope of his employment as an employee of the County when engaging in the conduct for which an award of attorney fees was entered against him. The court entered judgment against the County, ordering it to pay the holders of the promissory notes and costs. The County appeals, complaining the judgment requires the taxpayers to indemnify Tenwolde for "having squandered taxpayer resources in the first place."
DISCUSSION
In order for an employee to be indemnified by the government entity employer, the employee must follow certain procedural steps and establish that the claim or judgment arises in the context of the employee's scope of employment. Specifically, section 995 requires a public entity, upon written request of an employee, to "provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of a public entity." The public entity may refuse to provide for the defense of the employee "if the public entity determines that ... [t]he act or omission was not within the scope of his employment; ..." (§ 995.2.)
If the public entity conducts the defense of the employee (thereby presumptively concluding the employee's actions were within the scope of his *1089 employment), the public entity "shall pay any judgment ... or any compromise or settlement of the claim...." (§ 825, fn. 3, ante.) The public entity may also conduct the defense "reserving the rights of the public entity not to pay the judgment, compromise or settlement until it is established that the injury arose out of an act or omission occurring within the scope of [the employee's] employment...." (§ 825.)
If the employee's defense is not conducted by the public entity, the employee may pay the claim or judgment and recover that amount from the public entity "only if he establishes that the act or omission upon which the claim or judgment is based occurred within the scope of his employment as an employee of the public entity...." (§ 825.2, subd. (b).)
Here, Tenwolde sought indemnity from the County for the fees paid in the Duffy suit, alleging he made a written request for representation, the County in fact represented him, and the judgment awarded against him arose from his acts occurring within the scope of his employment. The County claimed the written request pertained only to Duffy, Houts's "in house" defense of Tenwolde was not "an authorized County defense," and illegal political activity cannot be within the scope of employment.
County Representation
(1) The County attacks the jury's findings solely on the basis of substantial evidence. Preliminarily, we note the written request for representation of "Duffy and Does" is sufficient evidence to support the jury's first finding. The critical determination for indemnity purposes is the characterization of Houts's defense of Tenwolde because, if that representation equates with "defense by a public entity" without reservation of rights, Tenwolde is entitled to indemnity under section 825. Conversely, if Houts's representation is characterized as "outside" or other than by the public entity, Tenwolde would be entitled to indemnity only if his activities were within the scope of his employment, under section 825.2, subdivision (b).
Houts testified she is an attorney in the position of "special assistant to the sheriff." She is paid by the County and frequently represents the sheriff's department in civil and criminal matters. She cannot bind the County in a settlement agreement for money damages. In her view, she represents the interests of the sheriff's department and county counsel does not direct her. When a deputy sheriff is named in a complaint and wishes County representation, Houts's practice is to make a written request of county counsel. Houts said county counsel knew she represented Tenwolde along with Duffy. In her opinion the activities complained of were within the scope of employment. She thought she represented Tenwolde under a "mutual decision with *1090 ... Tenwolde[, herself] and the sheriff. And perhaps the undersheriff...."
Under section 25203, the board of supervisors directs and controls the conduct of litigation in which the County or one of its subordinate departments or agencies is a party. The County charter empowers county counsel to "act[] as legal advisor to the Board and represent[] the County and its officers, in their official capacity, in civil actions and proceedings in which they are involved, except when an officer is a defendant in an action prosecuted by the State or County." (San Diego County Charter, § 704.) The board may also employ "outside" counsel to assist County attorneys. (§ 25203.)
Although Houts is an attorney and works for an agency of the County, she is not part of County counsel and therefore lacks the authority to bind the County for indemnity purposes in a suit against a County employee. Had she the authority to do so, no purpose would be served by the procedure requesting County counsel to represent the employee. Under the indemnity provisions of section 825, the public entity must be able to assess the claim against its employee because that assessment is critical to indemnity. The entity must decide, at its peril, whether the activity is within the scope of employment because the entity's duty to indemnify attaches to that determination. If the entity is incorrect, it will be obligated to pay the judgment.
Here, County counsel assessed the complaint as being outside the scope of employment. Had "outside counsel" proved that assessment incorrect, the County would be obligated to pay. Houts, however, as the sheriff's legal adviser, did not have the authority to make a contrary assessment, and in her representation of Tenwolde acted independent of the County, and not as its agent or alter ego.
Scope of Employment
(2a) Since Tenwolde was not represented in the lawsuit by the County, his right to indemnification for his payment of the judgment rendered against him is dependent upon compliance with the conditions of section 825.2, subdivision (b). He may recover only if: (1) he establishes that his act giving rise to the judgment was "within the scope of his employment as an employee of the public entity," and (2) the County fails to establish that his act constituted "actual fraud, corruption or actual malice...." There is no contention that Tenwolde acted maliciously, fraudulently or in any other manner indicative of an intent to cheat the County. The issue, then, is whether his actions were within the scope of his employment.
*1091 The trial and appeal in Common Cause conclusively established that Tenwolde's acts were in violation of both state statute and the sheriff's own manual of policy and procedures. (Common Cause, supra, 200 Cal. App.3d at pp. 745, 746.) It might be thought that this determination would conclusively resolve the question of scope of employment, since common sense would suggest that it is never within the scope of employment of a sheriff's lieutenant to violate state statute and his own department's regulations.
(3) The difficulty in jumping to this conclusion, however, is that the authorities construing the meaning of "scope of employment" under section 825 et seq. accord an extremely broad interpretation to the phrase. This is perhaps understandable in light of the fact that a principal objective of the statutes is to provide third party claimants, who have been injured by tortious acts of governmental employees, with a source of compensation. (See Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 215-216 [285 Cal. Rptr. 99, 814 P.2d 1341].) Hence, acts which clearly are not authorized by the terms of employment, and are willfully and obviously wrongful, have been held to be within the scope of employment of the governmental servant. (See, e.g., Mary M. v. City of Los Angeles, supra [rape of an arrested female by on-duty police officer held within the scope of employment]; Scruggs v. Haynes (1967) 252 Cal. App.2d 256 [60 Cal. Rptr. 355] [assault and battery by police officer in the course of an arrest deemed within scope of employment]; Neal v. Gatlin (1973) 35 Cal. App.3d 871 [111 Cal. Rptr. 117] [libel by members of tenure committee of state college held within scope of employment].)
For purposes of the claims statute "a public employee is acting in the course and scope of his employment `when he is engaged in work he was employed to perform or when the act is an incident to his duty and was performed for the benefit of his employer and not to serve his own purposes or conveniences.' [Citations.] The phrase `scope of employment' has been equated with the express or implied power of the public employee to act in a particular instance, and in evaluating his conduct to determine whether it is within the ambit of his authority we are to look not to the nature of the act itself, but to the purpose or result intended. [Citations.] If the object or end to be accomplished is within the employee's express or implied authority his act is deemed to be within the scope of his employment irrespective of its wrongful nature." (Neal v. Gatlin, supra, 35 Cal. App.3d at p. 875, fn. omitted.) As stated in Mary M. v. City of Los Angeles, supra, 54 Cal.3d at page 214, "the test for determining whether an employee is acting outside the scope of employment is whether `"in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the *1092 employer's business."'" (Quoting from Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968 [227 Cal. Rptr. 106, 719 P.2d 676].)
In light of these authorities it is most difficult to hold as a matter of law that a fact finder could not determine Tenwolde's activities to be within the scope of his employment. What he did was not for his own gain, but for the perceived benefit of the sheriff's department and law enforcement in general. While he should perhaps have known better, he was nevertheless following the instructions of his superior, who had assured him that the activity was appropriate. The nature of the activity, disseminating information and promoting a letter-writing campaign, was germane to Tenwolde's role as lieutenant in command of the sheriff's public relations division. From the point of view of an outsider, Tenwolde's activities would probably appear to be part of his normal employment responsibilities. If the rape of an arrested female can be construed as within the scope of employment, surely Tenwolde's much more job-related efforts to induce Chief Justice Rose Bird's resignation could be construed (at least in terms of a question of fact for jury determination) to be potentially within the scope of his employment.
Public Policy Considerations
(2b) Does this analysis end our discussion? We think not. Determining that a third party, if injured by Tenwolde's lobbying activities, could have sought compensation from the County, does not provide the complete answer to Tenwolde's efforts to seek indemnity. This was not a case of injury to a third party. It was, instead, an action to block illegal activities by a public agency. The injury resulting from the illegal activity was an injury to the public itself. The title to the article here under discussion is "Indemnification of Public Employees." (Gov. Code, tit. I, div. 3.6, art. IV.) While the text of the statutes in question does not use the word "indemnification," it is clear that this is the principle with which we deal. Granted, these indemnification provisions are statutory, and hence common law concepts are not necessarily applicable. However, indemnification is typically a tripartite concept, resting upon equitable principles. Ordinarily, it is the right of one who has satisfied another's debt to a third party to recover from the principal obligor. (See 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 167, p. 847.) It makes no sense to talk about indemnification of a claim upon an indemnitee when the claim arises from damage by the indemnitee to the indemnitor. Here the wrong giving rise to the expenditure of fees and costs was an illegal expenditure of County funds a tort by the sheriff's lieutenant against his own employer. When the party committing the wrong is stopped, and then assessed costs and fees, it would not be logical, and certainly would not accord with equitable principles, to require the wronged party, the County, to reimburse the employee.
*1093 It may be helpful in this analysis to consider the nature of the plaintiff in the action. Section 3206, found breached in this case, forbids employee on-duty participation in political activities. This restriction was imposed by the Legislature with the preamble, contained in section 3201, that "The Legislature finds that political activities of public employees are of significant statewide concern," and that the provisions of the new chapter "shall supersede all provisions on this subject in the general law of this state or any ... county...."
Although no specific provision for enforcement is included in the chapter, it seems obvious that as a law of general statewide application its enforceability lies with appropriate governmental law enforcement entities. While the County counsel may in this case have been thought to have a conflict of interest (having been solicited to represent the sheriff and declined), the Attorney General did not. The Attorney General is the public entity generally authorized to enforce laws of the state. (People ex rel. Lynch v. San Diego Unified School Dist. (1971) 19 Cal. App.3d 252, 258 [96 Cal. Rptr. 658].) The Attorney General would have been a proper party plaintiff in this case, brought to restrain illegal activities by the sheriff's department. Indeed, as a precursor to their lawsuit the plaintiffs requested that the Attorney General take action, which he declined to do. However, had the action been brought by the Attorney General, with the resulting halt in the sheriff's political activities, and had thereafter costs been assessed against Tenwolde, would there have been any question about the denial of reimbursement of those costs from the very entity sought to be protected by the lawsuit? We think not.
It should make no difference that the plaintiffs in the lawsuit were "taxpayers." (4) Taxpayers are authorized under Code of Civil Procedure section 526a to bring an action against governmental officers to enjoin the waste or illegal expenditure of government funds. The taxpayer in such case acts as substitute for the otherwise responsible governmental law enforcement agency.[5] In harmony with this theory is the requirement that as a prerequisite to the suit a demand must be made upon the appropriate *1094 officials. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 134, p. 165; Hansen v. Carr (1925) 73 Cal. App. 511, 514 [238 P. 1048]; Schaefer v. Berinstein (1956) 140 Cal. App.2d 278, 293 [295 P.2d 113].) The remedy resulting from such suit is not an award or order in favor of the taxpayers. In fact, there is no requirement of any showing that the illegal governmental activities have damaged the plaintiff taxpayers to any greater extent than other citizens. (Blair v. Pitchess (1971) 5 Cal.3d 258, 268 [96 Cal. Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206].) The award or order is for the benefit of the governmental entity and its citizens. (2c) When, then, a cost award including fees based on the "private attorney general doctrine" is made, it would turn the objective of the suit on its head to require indemnification of the judgment by the very governmental agency the suit sought to benefit.
Of assistance in our deliberations is Stanson v. Mott (1976) 17 Cal.3d 206 [130 Cal. Rptr. 697, 551 P.2d 1]. At issue in that case was the propriety of expenditure of funds of the California Department of Parks and Recreation to promote the passage of a bond issue. After deciding that the expenditure was unauthorized, the court wrestled with the question of the personal liability of William Penn Mott, Jr., the director, for reimbursement of the improperly spent moneys. The court noted that under section 825 et seq. a public employee who imposes liability on his governmental agency through his torts is precluded indemnification "`... only in the rare instances of injuries arising from acts either outside the scope of employment or performed with actual fraud, corruption or malice.'" (Stanson v. Mott, supra, at p. 225, quoting Johnson v. State of California (1968) 69 Cal.2d 782, 792 [73 Cal. Rptr. 240, 447 P.2d 352].) Admitting that the indemnification statutes were not directly in point in the case, the court nonetheless considered that their "provisions do reflect a general state policy to limit a public employee's personal financial responsibility for errors committed in the course of his public employment." (Stanson v. Mott, supra, at p. 225.) The ultimate conclusion of the court, based not upon any specific statute but upon general equitable grounds, was that "public officials must use `due care,' i.e., reasonable diligence, in authorizing the expenditure of public funds, and may be subject to personal liability for improper expenditures made in the absence of such due care." (Id. at pp. 226-227, fn. omitted.)
We recognize that the question put to the court in Stanson v. Mott, supra, is not the same as the question we face. Mott was not seeking indemnification for a judgment he had to pay for misappropriation of funds, rather he was attempting to avoid the personal judgment altogether. Nevertheless, the *1095 case is instructive. It suggests that Tenwolde at some point in the prior proceedings should have interposed a defense of good faith expenditure of time and money, done with due care and lack of any negligence, and in the absence of knowledge of any illegality.
The difficulty with this potential defense is that it is now too late to raise. By imposing the cost and fee judgment against Tenwolde (and Duffy too, of course) the trial court impliedly made the finding required by the Stanson v. Mott court. To have imposed the judgment on Tenwolde without having found him either intentionally or negligently at fault would have been at odds with the rule of Stanson v. Mott. That judgment is now final. Any contention of lack of liability based on Stanson v. Mott should have been raised in the trial court, or at all events in the appeal that followed. Tenwolde's liability is established and now final. In that the decision affirming liability by law must have been based upon a finding of negligence, Stanson v. Mott stands for the proposition that Tenwolde is personally liable for the judgment. As we have indicated above, it would confound general principles of equity now to shift that burden back to the very entity the whole litigation sought to protect.
DISPOSITION
The judgment is reversed. In light of the tedious history of this case, in which escalating costs have cumulated to reach a substantial judgment, each side shall bear its own costs on appeal.
Benke, Acting P.J., and Nares, J., concurred.
Respondent's petition for review by the Supreme Court was denied June 10, 1993. Kennard, J., was of the opinion that the petition should be granted.
NOTES
[1] "The postcards stated: `Chief Justice Bird: [¶] I want a judiciary which is fair and impartial in all of its decisions, and which protects the victim as well as the accused in crimes. As Chief Justice, you have not upheld these basic precepts of justice. You have hurt our entire judicial system through the following:
"`You have repeatedly decided cases in favor of criminals over victims, which has made our entire judicial system a mockery.
"`You have embroiled the Court in partisan politics, creating a bias which has no place in the judicial system.
"`You have used the Supreme Court to stop the death penalty. This is an action which runs counter to the will and law of the people of California.
"`You have crippled law enforcement, thus endangering the safety of all Californians.
"`For these reasons, I respectfully request that you resign from your position as Chief Justice of California's Supreme Court!' (Italics omitted.)
"At the bottom of the postcards, in small print, was the name of the committee (Crime Victims for Court Reform) and their address in Los Angeles." (Common Cause, supra, 200 Cal. App.3d at p. 738, fn. 2.)
[2] All statutory references are to the Government Code unless otherwise specified.
[3] Section 825 provides in relevant part: "If an employee ... of a public entity requests the public entity to defend him against any claim or action against him for an injury arising out of an act or omission occurring within the scope of his employment as an employee of the public entity and such request is made in writing not less than 10 days before the day of trial, and the employee ... reasonably cooperates in good faith in the defense of the claim or action, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed."
Section 825.2 provides in relevant part: "(a) Subject to subdivision (b), if an employee ... of a public entity pays any claim or judgment against him, or any portion thereof, that the public entity is required to pay under Section 825, he is entitled to recover the amount of such payment from the public entity. [¶] (b) If the public entity did not conduct his defense against the action or claim, or if the public entity conducted such defense pursuant to an agreement with him reserving the rights of the public entity against him, an employee ... of a public entity may recover from the public entity under subdivision (a) only if he establishes that the act or omission upon which the claim or judgment is based occurred within the scope of his employment as an employee of the public entity and the public entity fails to establish that he acted or failed to act because of actual fraud, corruption or actual malice or that he willfully failed or refused to conduct the defense of the claim or action in good faith or to reasonably cooperate in good faith in the defense conducted by the public entity...."
[4] As examples of controversial topics, Tenwolde listed funding for the Astrea helicopter, sales tax for jail construction, the civilian review board, merger of crime labs, victims' rights, asset seizure, increased sentences for gun use, the death penalty, drunk driving, crime problems and the plight of illegal immigrants.
[5] The argument supporting this concept is set forth in Serrano v. Priest (1977) 20 Cal.3d 25, 44 [141 Cal. Rptr. 315, 569 P.2d 1303], as follows: "In the complex society in which we live it frequently occurs that citizens in great numbers and across a broad spectrum have interests in common. These, while of enormous significance to the society as a whole, do not involve the fortunes of a single individual to the extent necessary to encourage their private vindication in the courts. Although there are within the executive branch of the government offices and institutions (exemplified by the Attorney General) whose function it is to represent the general public in such matters and to ensure proper enforcement, for various reasons the burden of enforcement is not adequately carried by those offices and institutions, rendering some sort of private action imperative. Because the issues involved in such litigation are often extremely complex and their presentation time-consuming and costly, the availability of representation of such public interests by private attorneys acting pro bono publico is limited. Only through the appearance of `public interest' law firms funded by public and foundation monies ... has it been possible to secure representation on any large scale...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264346/ | 14 Cal.App.4th 1386 (1993)
18 Cal. Rptr.2d 530
EDWARD C. ALLRED, Plaintiff and Respondent,
v.
WILLIAM L. HARRIS et al., Defendants and Appellants.
Docket No. D014440.
Court of Appeals of California, Fourth District, Division One.
April 12, 1993.
*1387 COUNSEL
Boudreau, Trentacosta & Matuk, Boudreau & Trentacosta, Steven M. Boudreau, Gregory Jon Anthony and David L. Llewellyn, Jr., for Defendants and Appellants.
Ronald Talmo for Plaintiff and Respondent.
OPINION
KREMER, P.J.
William L. Harris and individuals associated with Concerned Citizens for Human Life and Shield of Roses (hereafter sometimes *1388 collectively referred to as Harris) appeal the issuance of a permanent injunction prohibiting anti-abortion picketing in the parking lot, interior walkways and grass areas of the Fletcher Parkway Medical Center (hereafter Medical Center). We conclude the injunction was properly issued and therefore affirm.
FACTS
The Medical Center has 19 tenants and 3 vacant suites. Among the tenants are a general surgery center, radiology, eye care, orthopedics, adolescent substance abuse counseling, hand and arm rehabilitation, obstetrics and gynecology, dermatology, dentistry and psychiatry. Family Planning Associates is located in a suite on the second floor of the Medical Center. Family Planning Associates perform abortions, sterilizations, birth control, pregnancy testing and sonograms.
The Medical Center has two parking lots. There are 56 parking spaces on the east side of the building and over 200 on the west side. There are six "Patient Parking Only" signs posted throughout the parking areas. There are also "No Trespassing" signs posted in the parking areas. The parking lots are used by the Medical Center tenants, patients and other users of the building. The parking lot is not open to the public generally. There are no public sidewalks or parks adjacent to the Medical Center.
The appellants protested in the parking areas on Saturdays. Some of the appellants first approached people as they were driving into the lot and then as they exited their cars, walked towards the entrance of the Medical Center and entered. The appellants attempted to distribute literature to the people entering and using the parking lot. Other of the appellants, particularly the Concerned Citizens for Human Life and the Shield of Roses, walked in a circle in the parking areas while saying the rosary. Sometimes, the person leading this group would use a voice amplifier.
In July 1989, the landlord gave Allred written permission to take "any and all actions necessary or advisable" to provide adequate security for the premises. In October 1989, Allred filed a complaint for injunctive relief against the appellants.
Allred proceeded on a property rights theory, arguing he was entitled to an injunction based on the private property nature of the Medical Center's parking lots and walkways. He argued Harris and the other defendants were trespassers on that private property and could be excluded by an injunction. Allred did not dispute the value of Harris's anti-abortion picketing activity to *1389 potential patients of the clinic or claim an injunction was proper based on the disruptive behavior of the protesters. Allred made a motion for a nonsuit on the basis an injunction was appropriate because Harris and the others were trespassing on private property.
The trial judge denied the motion for a nonsuit, explaining that while he had no doubt Allred had made a prima facie case in trespass, the judge also had "not a doubt in [his] mind that [the defendants had] an affirmative defense which is the constitutional defense raised by Pruneyard[[1]] and other ... cases."
The trial court issued a detailed statement of decision, concluding, among other things, that Harris and the other defendants provided important information and counseling to women seeking an abortion which Allred failed to provide, and that the "defendants do not have alternative effective other channels of communication to contact the users of the abortion facility, since there are no public sidewalks or parks adjacent to the [Medical Center]."[2] The court, however, ultimately found the Medical Center parking lot and interior walkways were not generally open to the public and, after reviewing numerous cases from other jurisdictions, concluded the defendants did not have a right to picket on the private property of the Medical Center.
The court granted the injunction and prohibited the appellants "and any other person acting in concert or participation with them, who have actual notice" of the judgment from, "entering onto any portion of the private property [of the Medical Center], specifically including, but not limited to, the private parking [lot] to the Building, and the interior walkways and grass areas on the property, in order to:
"1. Demonstrate, picket, or conduct any expressive activities regarding whether to continue or end a pregnancy.
*1390 "2. Physically approach, confront, walk nearby, or follow any patient, prospective patient, persons accompanying a patient or prospective patient, employee, or invitee of Plaintiff.
"3. Distribute, broadcast or communicate in any manner, any information, in written or oral form, specifically including, but not limited to, pamphlets and leaflets, regarding whether to continue or end pregnancy."
DISCUSSION
I
Picketing on Private Property
(1) As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership. (See Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 435 [73 L.Ed.2d 868, 882, 102 S.Ct. 3164].) An injunction is an appropriate remedy for a continuing trespass. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 605, pp. 704-705.)[3]
The right to exclude persons exercising First Amendment rights, however, is not absolute. Our Supreme Court held in Robins v. Pruneyard Shopping Center (Pruneyard), supra, 23 Cal.3d 899, that when private property is generally open to the public and functions as the equivalent of a traditional public forum, then the California Constitution protected speech, reasonably exercised, on the property, even though the property was privately owned. In Pruneyard, the property involved was a large regional shopping center. The plaintiffs were students who were denied access to the shopping center to solicit signatures on petitions opposing a United Nations resolution. The plaintiffs sought an injunction to injoin the shopping center from denying them access to collect signatures for their petition. The Supreme Court held the plaintiffs were entitled to access.
The Supreme Court reasoned large retail shopping centers were the suburbs' functional equivalent to the traditional town center business block *1391 where First Amendment activities have historically been exercised and "scrupulously" guarded. (Robins v. Pruneyard Shopping Center, supra, 23 Cal.3d 899, 908-910.) The court noted large regional shopping centers are open to the general public, drew large numbers of people and had a largely "public character." (Id. at pp. 910-911 and fn. 5.) The court emphasized it was not considering "`the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment.'" (Id. at p. 910.)
(2) The question then is whether the Medical Center parking lots and interior walkways function as a public forum like the large regional shopping center in Pruneyard or whether the Medical Center is functionally equivalent to a modest retail establishment which is not compelled to allow access to individuals for First Amendment purposes. We recently addressed this issue in Planned Parenthood v. Wilson (1991) 234 Cal. App.3d 1662, 1668 [286 Cal. Rptr. 427] (Wilson), and concluded the private parking areas of a medical facility were not the equivalent of a traditional public forum and therefore individuals did not have a constitutional right of access to the property for the purpose of First Amendment activity. Another court has also reached the same conclusion. (Allred v. Shawley (1991) 232 Cal. App.3d 1489 [284 Cal. Rptr. 140].)
In Wilson, we observed: "The Medical Center's ... tenants exclusively offer professional and personal services to specific clientele. It is for use only by individuals with specific business purposes, such as employees, clients and prospective clients of the tenants. The ... off-street parking lot is designed to provide a convenient place to park for those having direct business with Medical Center tenants. Each parking spot is labeled for use by `tenants' and `patients,' and there is no space for public parking in general. Unlike a large shopping mall or historically recognized public forums like parks, streets or public sidewalks, the Medical Center in no way has acquired the attributes of a public forum. Indeed, both architecturally and by usage, `[i]t presents no significant opportunity to disseminate ideas, and prohibiting such activity on its premises does not curtail the realistic opportunity of citizens to exercise their right of free speech. The center [is] not the functional equivalent of a public place....' [Citation.] Unlike the 21-acre shopping center containing 65 shops, 10 restaurants and a cinema in Robins, the Medical Center here with its parking lot resembles a `modest retail establishment' providing professional and personal services to specific clientele. Although members of the public are invited to avail themselves of the particular services performed by specific tenants providing medical services, they are not invited to congregate, relax, visit, seek out entertainment, browse and shop for personal, household or general business merchandise." (Planned Parenthood v. Wilson, supra, 234 Cal. App.3d 1662, 1671-1672; see also Allred v. Shawley, supra, 232 Cal. App.3d 1489, 1501-1502.)
*1392 Here, also the Medical Center's property is private in character and lacks the attributes of a public forum. The Medical Center does not provide a place for the general public to congregate but provides services to a specific clientele and is used for specific business purposes by employees, clients and the tenants' prospective clients. The parking lot is not generally open to the public but is intended for the use of people with direct business with the Medical Center as indicated by the "Patient Parking Only" and "No Trespassing" signs. The Medical Center has more in common with a small retail establishment than a large regional shopping center and thus is not constitutionally compelled to allow access to its private property for First Amendment purposes.
Harris argues the anti-abortion picketers here are entitled to access pursuant to the Supreme Court's holding in In re Lane (1969) 71 Cal.2d 872 [79 Cal. Rptr. 729, 457 P.2d 561]. In Lane, decided 10 years before the Supreme Court's decision in Pruneyard, supra, 23 Cal.3d 899, union picketers involved in a labor dispute were trying to distribute handbills urging customers not to patronize a large "super-market-type" grocery store which was fronted by a large parking lot extending 150 feet to the public street. Store customers entered and left the market along a private sidewalk adjacent to the building. The Supreme Court held the picketers were entitled to picket along the private sidewalk adjacent to the market, noting that a prohibition against picketing on the private sidewalk would create a "cordon sanitaire" around the business establishment in light of the parking lot buffer between the public street and store entrance which would effectively immunize the market from any on-the-spot criticism. (In re Lane, supra, 71 Cal.2d 872, 876-877.)
Division Three of this district has recently considered Lane in the context of private clinic picketing and found Lane inapplicable. In Allred v. Shawley, supra, 232 Cal. App.3d 1489 the court stated:
"Appellants rely heavily on In re Lane. However, ours is a different situation. Far from being a retail store, which holds out an invitation to the entire buying public in general, the professional center serviced mainly prearranged clientele. It was not fully open to the local community; nor did it provide services which were essential to all community members, such as in the mall of Schwartz-Torrance of the `large "super-market-type" grocery store' in Lane. [Fn. omitted.] Retail sales were specifically forbidden on the premises. [The medical clinic] and the professional center in general are at the opposite end of the continuum from Schwartz-Torrance and command a different result because `"[t]he [less] an owner, for his advantage, opens up his property for use by the public in general, the [less] do his rights become *1393 circumscribed by the statutory and constitutional rights of those who use it." [Citation.]' (Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union, supra, 61 Cal.2d 766, 771.)" (Allred v. Shawley, supra, 232 Cal. App.3d 1489, 1501-1502.)
Similarly, in Planned Parenthood v. Wilson, supra, 234 Cal. App.3d 1662, 1674, footnote 9, we found cases involving expressive activities at a shopping center and at Union Station in Los Angeles inapplicable to picketing of a private medical clinic. In this context, we consider Lane a preshadowing of the Pruneyard decision 10 years later and not a case holding that any private business locale even partially open to the public becomes a public forum for expressive activities related to the business conducted there. Under the facts of this case as framed by the parties, the issue resolves to whether the private medical clinic here is more closely akin to the regional shopping center of Pruneyard or the modest retail establishment excepted in that decision. We do not believe the trial court erred when it drew the line to favor the clinic.
We conclude neither the California Constitution nor the Pruneyard and Lane cases require the Medical Center to allow Harris and the others access to the private property of the Medical Center for expressive purposes. The court properly granted Allred an injunction.
II
Content Regulation of Speech
Harris contends the injunction violates the constitutional guarantee against content-based restrictions on freedom of expression since the injunction enjoins only expression on the topic of "whether to continue or end a pregnancy." This is not an impermissible content-based restriction; rather, it reflects the court's attempt to narrowly define the activity and persons affected by the injunction. Injunctions affecting First Amendment activity should be narrowly tailored. (Kaplan's Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 81 [160 Cal. Rptr. 745, 603 P.2d 1341].)
DISPOSITION
The judgment is affirmed.
Work, J., and Huffman, J., concurred.
Appellants' petition for review by the Supreme Court was denied July 1, 1993.
NOTES
[1] Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 [153 Cal. Rptr. 854, 592 P.2d 341].
[2] We note that many of the court's findings about the value of Harris's anti-abortion picketing, the lack of counseling provided by the clinic and that the clinic fell below the standard of care in the local community for failure to obtain "informed consent" from its patients because the clinic failed to provide counseling on whether or not a woman should obtain an abortion, were findings irrelevant to the issue before the court, i.e., whether Allred could exclude Harris and the others from trespassing on the private property of the Medical Center. Because Allred defended solely on a property rights basis, he did not, for example, present evidence on the standard of care and informed consent issues. We further note the court's finding Harris had no alternative means of communication because of the lack of public sidewalks or parks adjacent to the Medical Center is not supported by the evidence. Photographs of the Medical Center and nearby street show dirt sidewalk areas adjacent to the public street and to the Medical Center driveway and not far from the area where the individuals picketed in the parking lot.
[3] Harris argues Allred had no standing to seek an injunction because he was but one of many tenants in the building. This contention is without merit. Allred, as a tenant, had a possessory interest in the parking lot and walkways, had the landlord's specific authorization to take steps necessary for the security of the parking areas and was affected by the defendants' activities which were aimed at disrupting his normal business activities. (See Planned Parenthood Shasta-Diablo, Inc. v. Williams (1993) 12 Cal. App.4th 1817, 1823 [16 Cal. Rptr.2d 540].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264349/ | 14 Cal.App.4th 477 (1993)
18 Cal. Rptr.2d 198
JOSE MILLAN, as Deputy Labor Commissioner, etc., Petitioner,
v.
RESTAURANT ENTERPRISES GROUP, INC., Respondent.
Docket No. G012006.
Court of Appeals of California, Fourth District, Division Three.
March 24, 1993.
*480 COUNSEL
H. Tomas Cadell, Jr., and Miles E. Locker for Petitioner.
Musick, Peeler & Garrett and Dana D. Howells for Respondent.
OPINION
MOORE, J.
The Restaurant Enterprises Group, Inc. (appellant) appeals an order by the superior court compelling production of documents pursuant to an administrative subpoena duces tecum (subpoena) issued by the Division of Labor Standards Enforcement (DLSE). The DLSE seeks to determine whether appellant is subject to California Labor Code section 227.3[1], which prohibits the forfeiture of vested vacation time and requires the payment of accrued vacation time to employees upon separation from employment.
Appellant contends that because it maintained a Voluntary Employees' Beneficiary Association Trust (VEBA) under the Employee Retirement Income Security Act (29 U.S.C. § 1001 et seq., ERISA), the DLSE lacks authority to enforce California law on vacation pay. It also argues the subpoena fails to meet constitutional standards for enforcement because it is not for a lawful purpose, seeks irrelevant records, and is excessive for the purposes of its inquiry.
THE STATUTORY SCHEME AND PROCEDURAL BACKGROUND
(1a) An administrative subpoena may be enforced if it is issued "for `a lawfully authorized purpose, within the power of [the legislative body] to command.'" (Craib v. Bulmash (1989) 49 Cal.3d 475, 482 [261 Cal. Rptr. *481 686, 777 P.2d 1120], quoting Okla. Press Pub. Co. v. Walling (1946) 327 U.S. 186, 209 [90 L.Ed. 614, 629-630, 66 S.Ct. 494, 166 A.L.R. 531].) The documents demanded must be relevant and "`adequate, but not excessive, for the purposes of the relevant inquiry.'" (Ibid.)
Section 227.3 provides that employees must receive vested vacation pay upon separation from employment.[2] "The right to a paid vacation, when offered in an employer's policy or contract of employment, constitutes deferred wages for services rendered.... [A] proportionate right to a paid vacation `vests' as the labor is rendered. Once vested, the right is protected from forfeiture by section 227.3. On termination of employment, therefore, the statute requires that an employee be paid in wages for a pro rata share of his vacation pay. [Fn. omitted.]" (Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784 [183 Cal. Rptr. 846, 647 P.2d 122, 33 A.L.R.4th 254], hereafter Suastez.)
In Suastez, supra, 31 Cal.3d 774, the Supreme Court held that although employers have no obligation to provide vacation benefits, if such benefits are provided they are earned and vest on a daily basis. Thus, prorated vacation benefits must be paid on termination of employment even in cases where employees do not meet prerequisites of the employer's policy, such as attaining a full year of employment. (Id. at pp. 781-784.) After Suastez, certain types of vacation pay policies which were formerly permissible, such as policies allowing the forfeiture of vacation pay before one full year of service or which required employees to "use or lose" vacation pay by a specific date, were prohibited.
After Suastez was filed, a group of employer trade associations brought suit in federal court seeking a declaration that section 227.3, the DLSE's enforcement policy, and Suastez itself, were preempted by ERISA. The federal district court entered judgment in favor of the trade associations and issued an injunction prohibiting the DLSE from processing any vacation pay claims under section 227.3.
On appeal, the Ninth Circuit Court of Appeals considered whether ERISA preempted state regulation of unfunded vacation benefits policies, paid out of *482 general assets of the employer as part of regular payroll while an employee is on vacation, and concluded it did not. (California Hosp. Ass'n v. Henning (9th Cir.1985) 770 F.2d 856, 859-861, hereafter Henning.) Following the Ninth Circuit's reversal of the district court's order, and its holding that payment of vacation benefits from an employer's general assets is outside the scope of ERISA, the district court issued a new order ruling that the DLSE has jurisdiction over any unfunded vacation pay policy and that ERISA preemption applies only to funded vacation plans.
In Massachusetts v. Morash (1989) 490 U.S. 107 [104 L.Ed.2d 98, 109 S.Ct. 1668] (hereafter Morash), the United States Supreme Court adopted Henning's reasoning and holding. The court held that an employer's vacation program did not constitute an "employee welfare benefit plan" within the meaning of ERISA, where vacation benefits were paid out of the employer's general assets. As the court stated, "In enacting ERISA, Congress' primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees' benefits from accumulated funds. [Henning, supra, 770 F.2d at page 859.] To that end, it established extensive reporting, disclosure, and fiduciary duty requirements to insure against the possibility that the employee's expectation of the benefit would be defeated through poor management by the plan administrator. Because ordinary vacation payments are typically fixed, due at known times, and do not depend on contingencies outside the employee's control, they present none of the risks that ERISA is intended to address. If there is a danger of defeated expectations, it is no different from the danger of defeated expectations of wages for services performed a danger Congress chose not to regulate in ERISA." (Morash, supra, at p. 115 [104 L.Ed.2d at pp. 108-109].) Morash thus established that ERISA does not cover a program "whose vacation benefits come from the same fund from which [employees] receive their paychecks." (Id. at p. 120 [104 L.Ed.2d at p. 112].)
On September 30, 1986, the DLSE issued a bulletin known as interpretive bulletin No. 86-3. In that bulletin, the DLSE noted many employers were designing vacation plans to comply with Henning and offered guidance on questions frequently asked by employers. The bulletin detailed the DLSE's enforcement policy as follows: "DLSE will accept only those claims for vacation pay which would be paid out of the employer's general assets. Claims for vacation pay filed against a third party such as a `benefit association' or `trust' or `fund' have not heretofore been processed because such entities have customarily been part of a collective bargaining agreement. Papers filed in [Henning] suggest that there may be vacation pay arrangements which are paid neither from general assets nor pursuant to collective bargaining agreements. Any claim involving [a funded] plan ... *483 created in accordance with and subject to the provisions of ERISA must be pursued through state or federal courts. If an employer opposes a vacation pay claim by alleging ERISA coverage on any of the above grounds, enforcement as to that claim will be stayed for a reasonable period to allow the employer to submit evidence in substantiation of that defense."
The bulletin confirmed the DLSE's existing policy to exclude all funded vacation plans and assert jurisdiction over unfunded plans only. The DLSE never conceded it lacked jurisdiction over unfunded plans of any nature, including unfunded VEBA's.
In 1990, the United States District Court ruled that a vacation benefits trust created by an employer was not an ERISA employee welfare benefit plan where the trust maintained virtually no accumulated funds in its account. (Czechowski v. Tandy Corporation (N.D.Cal. 1990) 731 F. Supp. 406, hereafter Czechowski.) The court refused to allow the employer to use an "advance and recapture" method as a means of evading section 227.3, stating: "Tandy disburses payments of vacation benefits directly to ... employees from its own general funds; the VEBA trust then reimburses Tandy on a quarterly basis for the moneys Tandy has disbursed to employees, and Tandy simultaneously gives a check to the VEBA trust for the same amount it has received from the VEBA trust.... Though the VEBA trust, since its inception, has disbursed over $1 million in vacation pay in this manner, it has never held more than $1,000." The court concluded Morash's reasoning applied because that VEBA did not "implicate any concerns over mismanagement since no funds are accumulated in it. Further, the risk an employee bears is precisely the same as his employment risk: that he may be terminated and cease to receive wages and other compensation. The VEBA trust, therefore, is not a plan covered by ERISA." (Id. at p. 408.)
The DLSE contends that after the publication of Czechowski, it became aware that employers might use a VEBA trust as a subterfuge to deny separating employees payment of unpaid vacation wages. Then, in April 1991, two of appellant's former employees filed claims with the DLSE for payment of earned and unpaid wages. The DLSE issued subpoenas seeking records relating to the VEBA trust. The DLSE contended the documents were necessary to ascertain whether the VEBA was funded and whether it made direct payments of employees' vacation benefits, and to determine whether appellant was subject to the provisions of section 227.3. Appellant settled the claims filed by its two ex-employees, but the DLSE continued its investigation of appellant's vacation pay practices.
On July 11, the DLSE served appellant with a new subpoena seeking records showing whether the VEBA was funded and how it was operated. *484 When appellant did not comply, the DLSE filed a petition to compel production, seeking production of documents in 19 categories related to the VEBA. The matter was referred to a commissioner (Code Civ. Proc., § 259), who recommended the court grant the request for production of 17 categories of documents, with 2 categories to be produced thereafter if it was determined that appellant's vacation plan is such that California law is not preempted by ERISA.
The court adopted the commissioner's report, but thereafter ordered compliance with only nine categories of items.[3] The court stayed compliance to allow appellant to file the instant appeal.
DISCUSSION
I. Is the Order Appealable?
Following the briefing of this matter, the DLSE filed a motion to dismiss the appeal, or, in the alternative, to treat it as a petition for writ, contending the order compelling compliance with the subpoena is not appealable. Government Code sections 11187 and 11188 allow judicial enforcement of subpoenas issued by state executive departments.[4] There are cases which have held that orders compelling compliance with a subpoena must be reviewed by writ. (See Franchise Tax Bd. v. Barnhart (1980) 105 Cal. App.3d 274, 277 [164 Cal. Rptr. 331]; Barnes v. Molino (1980) 103 Cal. App.3d 46, 50-51 [162 Cal. Rptr. 786].) The DLSE relies heavily upon Pacific-Union *485 Club v. Superior Court (1991) 232 Cal. App.3d 60 [283 Cal. Rptr. 287]. However, that case does not solve the problem. There, a private club filed both an appeal and an extraordinary writ because of the confusion as to whether an order enforcing a subpoena is appealable or reviewable by extraordinary writ only. The Court of Appeal noted the confusion in the area, then concluded, "[e]ven if the order is directly appealable, we would review the order by writ in this case in the interests of judicial economy and expediency." (Id. at pp. 68-69, fn. 3.) Here, by contrast, the case has been fully briefed by the parties and is ripe for decision. Thus, the interests of judicial economy and expediency would not be served by treating the appeal as a petition for extraordinary writ.
(2) Moreover, the better view is that "orders requiring compliance with the subpoenas are appealable as final judgments in special proceedings...." (Wood v. Superior Court (1985) 166 Cal. App.3d 1138, 1140 [212 Cal. Rptr. 811]; see also Knoll v. Davidson (1974) 12 Cal.3d 335, 343 [116 Cal. Rptr. 97, 525 P.2d 1273]; In re De La O (1963) 59 Cal.2d 128, 156 [28 Cal. Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705].)
Numerous cases, including cases from our Supreme Court, have decided appeals taken from similar orders on the merits without discussion of the appealability issue. (See, e.g., Younger v. Jensen (1980) 26 Cal.3d 397 [161 Cal. Rptr. 905, 605 P.2d 813]; Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal. App.3d 669 [156 Cal. Rptr. 55]; Fielder v. Berkeley Properties Co. (1972) 23 Cal. App.3d 30 [99 Cal. Rptr. 791].) Inasmuch as the Supreme Court is among those courts which have assumed the appealability of such orders, we conclude such an order is appealable, decline the DLSE's request to treat the matter as a writ petition, and address the contentions raised on the merits. (See Kizer v. Sulnick (1988) 202 Cal. App.3d 431, 435, fn. 1 [248 Cal. Rptr. 712]; Tom v. Schoolhouse Coins, Inc. (1987) 191 Cal. App.3d 827, 828-829, fn. 1 [236 Cal. Rptr. 541].)
The issue on this appeal, whether the subpoena meets constitutional standards for enforcement, is a matter of law and is reviewed de novo. (Engs Motor Truck Co. v. State Bd. of Equalization (1987) 189 Cal. App.3d 1458, 1464 [235 Cal. Rptr. 117]; Simpson v. Unemployment Ins. Comp. Appeals Bd. (1986) 187 Cal. App.3d 342, 350 [231 Cal. Rptr. 690].) Of course, allegations by the parties which are not supported by appropriate reference to the record will be disregarded. (Cal. Rules of Court, rule 15(a); Pulver v. Avco Financial Services (1986) 182 Cal. App.3d 622, 632 [227 Cal. Rptr. 491].)[5]
*486 II. Is the Subpoena for a Lawful Purpose Within DSLE's Power to Command?
(3a) Appellant first argues the DLSE lacks investigative authority over the payment of vacation benefits. However, section 95, subdivision (a) provides the DSLE "may enforce the provisions of this code and all labor laws of the state the enforcement of which is not specifically vested in any other officer, board or commission." The DLSE is therefore empowered to enforce section 227.3, which prohibits the forfeiture of vested vacation time upon an employee's separation from employment and requires employers to pay wages to separating employees for all accrued vacation time. Pursuant to sections 201 and 202, all wages that are earned and unpaid at the time of separation from employment, including wages for unused vacation time, must be paid immediately upon discharge or within 72 hours of the employee's resignation.[6] Section 203 provides for the imposition of penalties against the employer for the willful failure to timely pay an employee's final wages.[7] Thus, under the statutory scheme, an employer's failure to pay wages for a separating employee's accrued vacation time violates section 227.3, as well as either section 201 or 202, and subjects the employer to penalties under section 203. The DLSE is entrusted with responsibility for enforcing these code sections.
Appellant also contends the subpoena exceeds the scope of the DLSE's authority because it seeks documents that are required to be filed with the *487 IRS, the FTB, and the United States Department of Labor. We disagree. The documents sought are necessary so the DLSE can enforce the labor laws which it is empowered to enforce. Neither the IRS, the FTB, nor the United States Department of Labor has authority to enforce the provisions of the Labor Code.
Appellant also claims there must be an assignment of a pending claim before the DLSE can take action with respect to vacation pay. However, neither section 95, subdivision (a), nor Government Code section 11180, which empowers the labor commissioner to investigate and prosecute actions concerning all matters under the department's jurisdiction, require the assignment of a pending claim before the DLSE can take action. In fact, section 96.7 provides that the labor commissioner may collect benefits without assignment: "The Labor Commissioner, after investigation and upon determination that wages or monetary benefits are due and unpaid to any worker ..., may collect such wages or benefits on behalf of the worker without assignment of such wages or benefits to the commissioner." Thus, the DLSE's power to conduct an investigation to determine whether wages are owed is not dependent upon the existence of currently pending individual wage claims. As the Supreme Court has stated, "There is no constitutional objection to a system under which the heads of departments of government may compel the production of evidence for purposes of investigation, without instituting formal proceedings against the one from whom the evidence is sought or filing any charges against him. As has been said by the United States Supreme Court, the power to make administrative inquiry is not derived from a judicial function but is more analogous to the power of a grand jury, which does not depend on a case or controversy in order to get evidence but can investigate `merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.'" (Brovelli v. Superior Court (1961) 56 Cal.2d 524, 529 [15 Cal. Rptr. 630, 364 P.2d 462], quoting United States v. Morton Salt Co. (1950) 338 U.S. 632, 642-643 [94 L.Ed. 401, 410-411, 70 S.Ct. 357].)
(1b) An administrative agency has the authority to conduct an investigation and to subpoena records to determine whether the entity under investigation is subject to the agency's jurisdiction and whether there have been violations of provisions over which the agency has jurisdiction. (See Okla. Press Pub. Co. v. Walling, supra, 327 U.S. at pp. 215-217 [90 L.Ed. at pp. 633-634]; Younger v. Jensen, supra, 26 Cal.3d at p. 405.) (3b) For that reason, the subpoena here is for a lawfully authorized purpose within the DLSE's enforcement power and is enforceable. (See Craib v. Bulmash, supra, 49 Cal.3d at p. 482.)
(4) Next, appellant argues the DLSE's investigation is prohibited by the declaratory judgment in Henning, supra, 770 F.2d 856. The argument is *488 based upon a misinterpretation of the case. Henning held that ERISA does not preempt state regulation of unfunded vacation plans where employees' vacation benefits are paid out of the employer's general assets. (Henning, supra, at pp. 859-861; accord Morash, supra, 490 U.S. at p. 120 [104 L.Ed.2d at p. 112].) ERISA itself defines an "employee welfare benefit plan" as a "plan, fund or program ... established or ... maintained for the purpose of providing for its participants or their beneficiaries ... vacation benefits...." (29 U.S.C. § 1002(1).) Obviously, a VEBA from which benefits are provided to employees out of the employer's general assets rather than out of the VEBA's funds is not maintained for the purpose of providing vacation benefits, and is not regulated by ERISA. Nothing in Henning prohibits the DLSE from conducting an investigation to determine whether appellant's VEBA is subject to the provisions of section 227.3.
It is appellant's burden to prove facts necessary to establish it is entitled to ERISA preemption. (Marshall v. Bankers Life & Casualty Co. (1992) 2 Cal.4th 1045, 1052 [10 Cal. Rptr.2d 72, 832 P.2d 573]; Kanne v. Connecticut General Life Ins. Co. (9th Cir.1988) 867 F.2d 489, 492, fn. 4.) That is apparently a burden appellant is unwilling to shoulder. Appellant stridently contends the VEBA is funded at the present time and is an ERISA plan. However, it is unwilling to permit the DSLE to examine the records to verify that fact.[8]
Appellant seeks to rely on Marshall v. Bankers Life & Casualty Co., supra, 2 Cal.4th 1045 (hereafter Marshall) in support of its assertion there is no requirement under ERISA that a vacation plan be funded. The suggestion is that state regulatory agencies no longer have jurisdiction even over unfunded plans. However, Marshall does not so hold. In Marshall, the Supreme Court, dealing with a group health insurance policy, held that an ERISA plan may be established despite the fact that an employer has minimal involvement in plan administration and no involvement in claims processing. (Id. at p. 1049.) The court stated that "an employer that in order to provide its employees with any of the benefits specified in ERISA purchases a group insurance policy, contributes towards premiums and remits them to the insurer, and retains authority to terminate the policy or change its terms has *489 `established or maintained' an ERISA plan regardless of whether it also processes claims or otherwise administers the policy." (Id. at p. 1057.) The case did not deal with vacation pay and does not alter the fact that ERISA does not preempt state regulation of unfunded vacation plans where employees' vacation benefits are paid out of the employer's general assets. (Morash, supra, 490 U.S. at p. 120 [104 L.Ed.2d at p. 112]; Henning, supra, 770 F.2d at pp. 859-861.)
As the United States Supreme Court stated in Morash, regulations promulgated by the Secretary of Labor "provide that numerous `payroll practices,' including the payment of vacation benefits `out of [an] employer's general assets' rather than from a trust fund, are not employee welfare benefit plans within the meaning of ERISA." (Morash, supra, 490 U.S. at pp. 117-118 [104 L.Ed.2d at pp. 110-111], fn. omitted; see also 29 C.F.R. § 2510.31(b)(1).) The DSLE is, therefore, entitled to the subpoenaed documents to determine whether appellant is subject to its jurisdiction and whether there have been violations of provisions over which the DSLE has jurisdiction.
Appellant notes that the district court in Czechowski concluded that the VEBA there was not a plan covered by ERISA because it never held more than $1,000. (Czechowski, supra, 731 F. Supp. at p. 408.) Appellant argues there is no minimum funding requirement for ERISA preemption. It makes this argument out of one side of its mouth, while arguing that the DSLE's concern should be with whether it is properly funded now. In any event, this is discovery, not enforcement. The issue at this stage of the discovery proceedings is not what amount of money is required to be in a fund. Rather, the issue is whether the employer in fact maintains a fund, in which case it is entitled to ERISA preemption, or whether employees' vacation benefits are paid out of general assets, in which case it is not.
If the DSLE determines from the records produced that it has jurisdiction, appellant will have an opportunity to meet its burden of proving that the VEBA is funded. As the Supreme Court noted in Marshall, "The existence of an ERISA plan is a question of fact, to be answered in light of all of the surrounding circumstances as viewed by a reasonable person." (Marshall, supra, 2 Cal.4th at p. 1052.) One of the factors in determining whether ERISA preemption applies is the source from which the employees' vacation benefits are paid. As the Supreme Court stated, "To hold that a plan exists, the court must be able to determine `whether from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits.'" (Id. at p. 1054, italics added, quoting Donovan v. Dillingham (11th Cir.1982) 688 F.2d 1367, 1373.)
*490 (5a) Appellant also asserts the DLSE is estopped from enforcing the subpoena. The argument is based upon the DLSE's interpretative bulletin No. 86-3, which dealt with enforcement of section 227.3, as interpreted in Suastez, supra, 31 Cal.3d 774. Appellant claims it relied on the DLSE's enforcement position as announced in that bulletin, and that the bulletin says nothing about a different enforcement policy for funded plans depending on any level of funding or on the use of an "advance and recapture" system for distributing benefits. We conclude there is no basis for estoppel.
(6) "Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." (Evid. Code, § 623.) "Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury." (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305 [61 Cal. Rptr. 661, 431 P.2d 245].) (7) Although estoppel may be asserted against the government in the interest of justice (City of Los Angeles v. Cohn (1894) 101 Cal. 373, 377 [35 P. 1002]), it will not be applied if to do so would effectively nullify "a strong rule of policy, adopted for the benefit of the public." (County of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817, 829-830 [186 P.2d 124, 175 A.L.R. 747]; see also Lentz v. McMahon (1989) 49 Cal.3d 393, 399 [261 Cal. Rptr. 310, 777 P.2d 83].)
(5b) In essence, appellant argues that the DLSE did not enforce regulations against VEBA's which were not sufficiently funded in the past, so it should be precluded from requiring appellant to provide documentation to establish whether its VEBA is funded and operated in a manner which would preempt enforcement of section 227.3 in light of ERISA. But the subpoena merely requires appellant to submit evidence to substantiate its claim that it is not subject to the provisions of section 227.3. It merely requires compliance with the exact provisions of paragraph 1 of interpretive bulletin No. 86-3, in effect since September 1986, which states: "DLSE will accept only those claims for vacation pay which would be paid out of the employer's general assets.... If an employer opposes a vacation pay claim by alleging ERISA coverage ..., enforcement as to that claim will be stayed for a reasonable period to allow the employer to submit evidence in substantiation of that defense." (Italics added.)
*491 None of the elements of estoppel has been met, and we decline to apply the doctrine to contravene section 227.3, which was adopted for the protection and benefit of state employees to prohibit the forfeiture of vested vacation benefits. (Suastez, supra, 31 Cal.3d at pp. 783-784.)
Finally, appellant contends the DLSE's investigation violates the California Administrative Procedure Act, because informal, secret regulations are prohibited by the act. The argument is based upon its contention that the DLSE has adopted a "new enforcement policy." Not so. The Office of Administrative Law's determination No. 18, issued on December 29, 1989, upheld paragraph 1 of interpretive bulletin No. 86-83 which simply restated existing policy and law. The DLSE is empowered to determine whether a VEBA is funded and whether it makes direct payments to employees' vacation benefits. Accordingly, there is no merit to appellant's contention that the DLSE cannot subpoena the VEBA records until it promulgates a new regulation.
III. Does the Subpoena Seek Irrelevant Records and Is It Excessive for the Purposes of Its Inquiry?
(8) Appellant argues the subpoena cannot be enforced because it seeks irrelevant records and is excessive for the purposes of its inquiry. It contends the DLSE failed to demonstrate the relevance of the documents it seeks, that the subpoena does not seek "required records," and that, even as limited by the trial court, the subpoena is unconstitutionally excessive.
Item number 1 of the subpoena requested all IRS-990 forms "return of organization exempt from income tax" filed by appellant's VEBA with the IRS from 1988, to the present. Those returns, required to be filed with the IRS and to be disclosed to anyone upon request under the Internal Revenue Code, would contain information concerning the VEBA's assets, liabilities, expenses and fund balances.
Number 2 sought all IRS-5500 forms "annual return/report of employee benefit plan" filed by the VEBA with the IRS from 1988 to the present. Again, all tax exempt employee benefit plans must file such annual reports and they are open to public inspection. (Int.Rev. Code, §§ 6033, 6104(b).) The annual reports would contain information concerning the number of VEBA participants, its assets, liabilities, income, expenses, and fund balances.
Number 3 sought all IRS-1024 forms "application for recognition of exemption" filed by the VEBA with the IRS from 1988 to the present. *492 Those applications would contain information concerning the VEBA's revenues, expenses, assets, liabilities, and fund balances. It would also indicate the nature of the benefits provided to participants, the manner in which these benefits are provided, and the number of employees covered by the plan. Again, these applications are a matter of public record. (Int.Rev. Code, § 6104(a)(1)(A).)
Number 7 requested FTB form 199 "exempt organization annual information statement or return" and number eight sought FTB form 3500 "exemption application." These are state tax forms equivalent to the IRS's forms 990 and 1024, and contain similar information concerning the VEBA's funding.
Number 9 requests production of the VEBA's plan description and summary plan description. These documents contain information concerning the plan's requirements respecting eligibility for participation and benefits, circumstances which may result in the denial or loss of benefits, and the source of financing of the plan. (29 U.S.C. § 1022(b).) These records will establish whether, and under what circumstances, covered employees can suffer forfeiture of accrued vacation pay. Once again, the VEBA is required to file these documents with the Secretary of Labor and they are open to public inspection. (29 U.S.C. §§ 1024(a)(1), 1026.)
Number 10 sought the VEBA's annual reports from 1988 to the present. These reports must contain financial statements reflecting the plan's assets, liabilities, receipts and disbursements. (29 U.S.C. § 1023(b).) Again, these documents must be filed with the Secretary of Labor and are open to public inspection. (29 U.S.C. §§ 1024(a)(1), 1026.)
Number 16 requested the VEBA's bank statements from 1988 to the present reflecting all receipts and disbursements. These records would enable the DLSE to determine whether the VEBA was funded and how it operated with respect to the payment of vacation benefits on a day-to-day basis.
Finally, number 17 requested production of all written guidelines issued or in effect from 1988 to the present, including employee handbooks, policy memos or manuals, provided by the employer or the VEBA to employees concerning the establishment, funding or operation of the VEBA or the condition or payments of benefits. From these documents, the DLSE could determine exactly how and from what source vacation benefits were paid.
Unquestionably, the documents sought in the subpoena are relevant and material to the DLSE's investigation. However, appellant contends the *493 subpoena does not seek "required records," and is therefore excessive. It argues the documents sought are "required to be filed, not kept. There is no requirement that these records be kept on hand...." In Craib v. Bulmash, supra, 49 Cal.3d 475, the Supreme Court noted that the subpoenas there "sought only those records which the commissioner could minimally expect would be available in light of pertinent record keeping requirements." (Id. at p. 483.) However, nothing in Craib can be read to limit the enforcement powers of the administrative agency's subpoena to documents which are not required to be maintained under the Labor Code, although they are required to be filed. No other case has so held.
The DLSE is subpoening documents to ascertain whether it has jurisdiction to enforce the provisions of section 227.3. The permissible scope of this kind of administrative investigation is well established: "Insofar as the prohibition against unreasonable searches and seizures can be said to apply at all it requires only that the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant." (Brovelli v. Superior Court, supra, 56 Cal.2d at p. 529.) That standard is met here.
Appellant asserts that Czechowski, supra, 731 F. Supp. 406 is the only authority for the DLSE to investigate the VEBA's funding and system for distributing benefits. (1c) But case law is clear that an administrative agency is empowered to conduct an investigation and subpoena records to determine whether the entity under investigation is subject to the agency's jurisdiction and whether there has been a violation of provisions which the agency is empowered to regulate. (Okla. Press Pub. Co. v. Walling, supra, 327 U.S. at pp. 215-217 [90 L.Ed. at pp. 633-635]; Younger v. Jensen, supra, 26 Cal.3d at p. 405.)
DISPOSITION
The order compelling compliance with the subpoena is affirmed. The DSLE shall recover its costs on appeal.
Crosby, Acting P.J., and Wallin, J., concurred.
A petition for a rehearing was denied March 24, 1993, and respondent's petition for review by the Supreme Court was denied May 19, 1993.
NOTES
[1] All statutory references are to the Labor Code unless otherwise specified.
[2] That section states in part: "[W]henever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness."
[3] Appellant was not compelled to produce documents in 10 categories, including other forms filed by the VEBA with the Internal Revenue Service (IRS); blank forms used by the VEBA for transmitting information about the funding of the trust and the payment of benefits; memos, reports and correspondence between the VEBA and participating employers concerning the VEBA's establishment, funding or operation; memos, reports and correspondence between the VEBA and the United States Department of Labor, the IRS, and the Franchise Tax Board (FTB); documents issued by appellant to its employees in all job classifications, concerning the provision of paid vacations, the rate of accrual of vacation time, rules regarding the accrual and use of vacation time, and the payment or forfeiture of accrued and unused vacation time; and employment records for all employees who voluntarily or involuntarily separated from employment from January 1, 1988, to the present.
[4] Section 11187 provides in pertinent part: "If any witness refuses to ... produce any papers required by ... subpena ... the head of the department may petition the superior court ... for an order compelling the person to ... produce the papers required by the subpena before the officer named in the subpena."
Section 11188 provides in part: "Upon the filing of the petition the court shall enter an order directing the person to appear before the court ... and then and there show cause why he has not ... produced the papers as required.... If it appears to the court that the subpoena was regularly issued by the head of the department, the court shall enter an order that the person appear before the officer named in the subpoena at the time and place fixed in the order ... and produce the required papers. Upon failure to obey the order, the person shall be dealt with as for contempt of court."
[5] For example, appellant contends the VEBA has assets of over one-half million dollars and that the DLSE has records showing the VEBA has substantial assets. Neither of those assertions is supported by references to the record and, accordingly, we disregard them. (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal. App.3d 218, 228 [220 Cal. Rptr. 712]; Sprague v. Equifax, Inc. (1985) 166 Cal. App.3d 1012, 1050 [213 Cal. Rptr. 69].
Appellant claims the reason the evidence is not before this court is because of the "happenstance of [appellant] having to file an early notice of appeal to keep a stay in effect...." Appellant also argues the evidence would be a part of the record, but we denied its request to augment. However, appellant's motion to augment was not arbitrarily denied. In its motion, appellant relied upon self-serving letters from counsel asserting that the VEBA was funded, that the DLSE never disputed that contention, and that, therefore, appellant was entitled to ERISA preemption. Because the motion was devoid of admissible evidence on the points of contention, it was denied.
[6] Section 201 provides in part: "If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately."
Under section 202: "If an employee not having a written contract for a definite period quits his or her employment, his wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting."
[7] That section provides in part: "If an employer willfully fails to pay, without abatement or reduction, ... any wages of an employee who is discharged or who quits, the wages ... shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but such wages shall not continue for more than 30 days.... [¶] Suit may be filed for such penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise."
[8] At oral argument, appellant's counsel bemoaned the fact that the subpoena was burdensome and excessive because it seeks a voluminous amount of documents. However, counsel flatly rejected the suggestion that appellant simply provide authorizations and permit the DSLE to examine the records at its own time and expense. When pressed to state precisely which documents it is willing to make available to the DSLE to prove the VEBA is funded, counsel stated appellant is willing to select the records from one month of its current operations. Counsel contended the issue before us is a "federal question" and expressed confidence that the federal court will find the VEBA is an ERISA plan. However, she conceded appellant has yet to initiate proceedings to obtain that finding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264354/ | 14 Cal.App.4th 601 (1993)
17 Cal. Rptr.2d 583
THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL TYRONE WILLIAMS, Defendant and Appellant.
Docket No. B054590.
Court of Appeals of California, Second District, Division Two.
March 24, 1993.
*602 COUNSEL
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
*603 Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, William T. Harter and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
BOREN, P.J.
INTRODUCTION
Michael Tyrone Williams appeals following his conviction by a jury of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)), with findings that he had inflicted great bodily injury on the victim as a result of discharging a firearm from a motor vehicle (Pen. Code, § 12022.55). The attempted murders occurred during a gang-related drive-by shooting. Appellant was sentenced to a total prison term of 18 years. On appeal, he raises numerous contentions regarding trial and sentencing errors which we find to be without merit, but for the erroneous calculation of presentence custody credit.
FACTS, DISCUSSION I-V.[*]
.... .... .... .... .... .... .... .
VII. Imposition of Penal Code Section 12022.55 Enhancements
(1a) Appellant contends that the trial court erred in sentencing him with a gun use enhancement pursuant to Penal Code section 12022.55 on each of the two counts for which he was convicted, in violation of the single occasion rule set forth in In re Culbreth (1976) 17 Cal.3d 330, 334 [130 Cal. Rptr. 719, 551 P.2d 23]. However, Culbreth precludes multiple enhancements imposed pursuant to Penal Code section 12022.5, not section 12022.55, where a defendant uses a firearm in the commission of a number of offenses as a part of an indivisible transaction in which the victims are *604 shot incident to one objective. No such limitation has ever been placed on the application of an enhancement imposed pursuant to Penal Code section 12022.55.[9] (People v. Alvarez (1992) 9 Cal. App.4th 121, 127 [11 Cal. Rptr.2d 463].)
As the court observed in Alvarez, Penal Code section 12022.5 and section 12022.55 are at first glance somewhat similar, but yet focus upon fundamentally different conduct. (9 Cal. App.4th at p. 128.) Section 12022.5 provides a sentence enhancement (of three, four or five years) for a person who, in the terms of the statute, "personally uses a firearm in the commission or attempted commission of a felony." Section 12022.55 provides a sentence enhancement (of five years) when a person, with the intent to cause great bodily injury or death, causes "great bodily injury" by shooting a firearm from a motor vehicle in the commission of a felony or attempted felony.
Although appellant seeks to apply to Penal Code section 12022.55 enhancements the Culbreth restriction applicable to section 12022.5 gun use enhancements, the purpose of the two enhancements is quite different. (2a) On the one hand, Culbreth noted, "The legislative purpose of section 12022.5 [is] to deter the use of firearms on subsequent occasions." (In re Culbreth, supra, 17 Cal.3d at p. 333.) The number of enhancements permissible thus depends on the number of occasions of gun use, not on the number of victims of such gun use. "[T]he multiplicity of sentences because of the multiplicity of victims does not engender multiplicity of weapon use." (People v. Rodriguez (1984) 160 Cal. App.3d 207, 214 [206 Cal. Rptr. 563].) Therefore, where the evil to be prevented, an occasion involving the use of a gun, occurs only once, although there are several victims, only one enhancement is warranted.
(1b) On the other hand, Penal Code section 12022.55 focuses on a different evil, i.e., the intentional infliction of great bodily injury by someone discharging a firearm from within a car. The evil addressed is thus not related to the number of occasions of gun use, but rather to the number of victims who suffer great bodily injury from such a so-called "drive-by." As the court held in People v. Alvarez, supra, 9 Cal. App.4th 121, the enhancement provided by section 12022.55 is not a firearm use enhancement subject to Culbreth's single occasion rule, since the enhancement expressly applies *605 to the actual infliction of great bodily injury rather than to the mere use of a firearm. (9 Cal. App.4th at p. 128.) Accordingly, more than one seriously injured victim does indeed create more than one violation of the law, permitting multiple enhancements under section 12022.55.
(2b) Moreover, the rationale for the indivisible transaction concept addressed in Culbreth is the restriction on double punishment derived from Penal Code section 654.[10] (3) However, it is well established that Penal Code section 654 does not apply to a defendant who "`commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons.'" (People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal. Rptr. 654, 558 P.2d 552], quoting Neal v. State of California (1960) 55 Cal.2d 11, 20-21 [9 Cal. Rptr. 607, 357 P.2d 839].) Preventing "`violence with the intent to harm'" (ibid.) is the specific function of Penal Code section 12022.55, but not necessarily of section 12022.5. "[T]he purpose of the protection against multiple punishment [in Penal Code section 654] is to insure that punishment is commensurate with criminal liability. `A defendant who commits an act of violence with the intent to harm more than one person ... is more culpable than a defendant who harms only one person.'" (People v. Cook (1984) 151 Cal. App.3d 1142, 1147 [199 Cal. Rptr. 269], quoting Neal v. State of California, supra, 55 Cal.2d at p. 20.) (1c) It is therefore apparent that the number of enhancements pursuant to Penal Code section 12022.55 is limited only by the number of victims intentionally harmed.
Finally, if the Legislature had intended to limit multiple enhancements imposed pursuant to Penal Code section 12022.55 by the Culbreth single occasion rule, it could have specifically done so when enacting the statute. In other contexts, the Legislature has expressed its intent to restrict multiple enhancements (see, e.g., Pen. Code, § 1170.1, subd. (e)), and could have done so in the present context, as well. In the absence of legislation requiring such a result, we decline the invitation to extend Culbreth's limitation on the imposition of enhancements to the Penal Code section 12022.55 great bodily injury enhancement. Accordingly, the five-year enhancements to appellant's sentence were properly imposed on both counts of attempted murder.
VIII. Presentence Custody Credit[*]
.... .... .... .... .... .... .... .
*606 DISPOSITION
The judgment is modified to reflect a total of 451 days of presentence custody credit. In all other respects, the judgment is affirmed.
Gates, J., and Nott, J., concurred.
NOTES
[*] Only the Introduction, part VII of the Discussion, and the Disposition are certified for publication. The Facts, parts I through VI, and part VIII do not meet the standards for publication contained in rule 976(b) of the California Rules of Court.
[9] Penal Code section 12022.55 provides as follows: "Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall, upon conviction of the felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for five years."
[10] Penal Code section 654 provides as follows: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."
[*] See footnote, ante, page 601. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264368/ | 744 A.2d 1076 (2000)
130 Md. App. 101
Jaime RIVAS
v.
OXON HILL JOINT VENTURE, et al.
No. 6264, Sept. Term, 1998.
Court of Special Appeals of Maryland.
February 1, 2000.
*1078 James A. Sullivan, Jr. (Sullivan & Talbott, on the brief), Rockville, for appellant.
John F. Costello (Michael J. Winkelman and McCarthy & Costello, L.L.P., on the brief), Lanham, for appellees.
Argued before MOYLAN, WENNER and BYRNES, JJ.
*1077 BYRNES, Judge.
The Circuit Court for Prince George's County granted summary judgment in favor of Oxon Hill Joint Venture ("Oxon Hill") and Southern Management Corporation ("Southern"), appellees, in a slip and fall tort action brought against them by Jaime Rivas, appellant. On review, Rivas poses the following question, which we have rephrased:
Did the circuit court err as a matter of law in ruling that the duty of care owed to him was that owed to a licensee, not that owed to an invitee?
FACTS AND PROCEEDINGS
On the evening of February 15, 1995, Jaime Rivas, a deputy sheriff for Prince George's County, was going to an apartment in the Oxon Hill Village Apartments to serve a witness in a district court landlord-tenant case with a subpoena. Rivas parked his car on the apartment complex parking lot, near the unit in which the witness lived. He got out of his car and started to walk across a stretch of asphalt ten to fifteen feet from the sidewalk of the apartment complex. As he did so, he slipped and fell on a patch of ice, sustaining serious personal injuries.
Rivas filed a negligence action in the Circuit Court for Prince George's County against Oxon Hill, the owner of the apartment complex, and Southern, Oxon Hill's managing agent. He alleged that he had been an invitee on the premises, that Oxon Hill and Southern had breached their duty to keep the premises reasonably safe, and that their breach of duty had been the proximate cause of his injuries. After Oxon Hill and Southern filed a joint answer denying liability and raising certain affirmative defenses, discovery ensued.
Upon the completion of discovery, Oxon Hill and Southern filed a joint motion for summary judgment. They argued that, as a law enforcement officer, Rivas had assumed the risk of his injury as a matter of law, under the common law Fireman's Rule, and that his claim thus was barred as a matter of public policy. They also argued that Rivas had been a bare licensee on the premises, that he therefore had been owed the limited duty to refrain from willful injury or entrapment, and that the undisputed facts could not support a finding that they had breached such a duty. Rivas responded that the Fireman's Rule was inapplicable, that his status on the property was that of an invitee, and that the evidence adduced during discovery was sufficient to create a jury question with respect to negligence.
The lower court held a hearing on the motion for summary judgment and, at the conclusion of argument of counsel, granted it. The court explained:
In this case, we have a plaintiff, Jaime Rivas, a deputy sheriff, who while attempting to serve a civil court summons slipped and fell on ice that accumulated on the driveway of the parking lot of the defendant' (sic) property, Oxon Hill Village Apartments....
The issue before the court is whether the sheriff is entitled to bring this action as either a licensee or an invitee. If the sheriff is considered an invitee the standards for the landlord are stricter than if the sheriff was a mere licensee.
*1079 The Court has reviewed the case of Flood v. Attsgood Realty Company, [92 Md.App. 520, 608 A.2d 1297], a 1992 case, and indeed it has been cited several times this morning in oral argument. In that case a police officer fell through a floor of a premises while investigating a crime. The [C]ourt said he was a licensee and the owner was not liable for failing to warn him of any hidden dangers in his house that he didn't know about.
And in that case the police officer was, in the words of the Court of Special Appeals, clearly within the performance of his duties when he was injured. The only reason the appellant, the police officer in that case, was on the premises was to investigate possible drug activity there and to search for a suspect. And the Court said because of that there was no legally cognizable factual disputes for any jury to determine the liability of the owner of the premises.
Similarly, in this case we have a sheriff who was performing his duties. Namely, serving civil summonses. While in the performance of that duty he was injured. The Court finds that he was a licensee, that the apartment owner is not responsible for his injury and cannot be held responsible for his injury because he was a licensee and owed him no other duty other than to willfully refrain from harming him or not correcting a danger that he knew would have harmed him. There being no evidence of that, the Court will grant summary judgment ...
Rivas then filed a timely appeal to this Court.
STANDARD OF REVIEW
In ruling on a motion for summary judgment under Rule 2-501, the trial court first must determine whether there is a genuine dispute of material fact. If no such dispute exists, it next must determine whether the moving party is entitled to judgment as a matter of law. Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737-38, 625 A.2d 1005 (1993); Bagwell v. Peninsula Regional Med. Ctr., 106 Md. App. 470, 488, 665 A.2d 297 (1995), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996). In reviewing a trial court's grant of a motion for summary judgment, we engage in much the same analysis. We first determine whether the trial court correctly determined that there was no dispute of material fact. If the trial court properly did so, we then determine whether its legal ruling was correct. Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8, 327 A.2d 502 (1974).
In this case, the parties agreed that there was no genuine dispute with respect to some material facts; they assumed, for the sake of argument, that other disputes of material facts would be resolved in favor of Rivas (i.e., that he would be able to present evidence of ordinary negligence on the part of Oxon Hill and Southern). Rivas did not contend below that there were facts from which a reasonable jury could find that Oxon Hill and Southern had engaged in conduct amounting to a breach of the duty of care owed to a bare licensee (nor has he taken that position before this Court.) Thus, the parties agreed (as they do now), and the trial court implicitly found, that there was no genuine dispute of material fact, and that the outcome of the summary judgment motion depended only upon the resolution of a question of law.
DISCUSSION
The legal question presented by this case can be broken down into two sub-issues: 1) Whether the "Fireman's Rule" precluded Rivas from recovering in tort; and if not, 2) whether Rivas was owed a duty of ordinary care or a duty only to refrain from willful and wanton misconduct or entrapment.
Maryland has long recognized the common law "Fireman's Rule," which in some circumstances operates to preclude firefighters and police officers from tort *1080 recovery for injuries sustained in the course of their employment.[1] Until 1987, when the Court of Appeals decided Flowers v. Rock Creek Terrace, 308 Md. 432, 520 A.2d 361 (1987), the Fireman's Rule had been explained in terms of the firefighter or policeman being a bare licensee on the premises to whom was owed the limited duty to "abstain from willful or wanton misconduct or entrapment ... [which] encompasses a duty to warn of hidden dangers, where there was knowledge of such danger and an opportunity to warn." Flowers, 308 Md. at 443, 520 A.2d 361. In Flowers, the Court of Appeals held that the Fireman's Rule is best explained by public policy, and not by application of the law of premises liability. The Court took a causation oriented approach to the Fireman's Rule, focusing upon the roles of fire fighters and police officers in society. It explained:
[I]t is the nature of the firefighting occupation that limits a fireman's ability to recover in tort for work-related injuries. Instead of continuing to use a rationale based on the law of premises liability, we hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance. This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public. A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence.
308 Md. at 447-48, 520 A.2d 361.
More recently, in Tucker v. Shoemake, 354 Md. 413, 731 A.2d 884 (1999), the Court of Appeals applied the public policy analysis adopted in Flowers to hold that the Fireman's Rule did not preclude tort recovery by a police officer who was injured when he fell into a manhole as he was walking through the common area of a trailer park on the way to responding to a domestic dispute call from one of the trailer park residents. The Court explained that because the police officer's injuries had not been caused by the risk that had occasioned his presence at the trailer park, the Fireman's Rule was inapplicable. Tucker, 354 Md. at 419-20, 731 A.2d 884.
In the case sub judice, as in Tucker, the Fireman's Rule did not apply. To be sure, as a deputy sheriff for Prince George's County, Rivas was a law enforcement officer, see Md.Code (1957, 1996 Repl.Vol., 1998 Cum.Supp.), Art. 27 § 594B, and his duties as such required him to confront certain risks on behalf of the public. Under the Fireman's Rule, he was deemed to have accepted the risks inherent in those duties by accepting the position of deputy sheriff and the compensation of his office. The purpose for Rivas's visit to the Oxon Hill Apartments was to perform the duty of serving a subpoena. The negligence that allegedly caused his injury, however, was unrelated to the situation that required his services. Rivas was injured on account of an allegedly defective condition of the common area parking lot of the apartment complex, across which he walked on his approach to the apartment unit in which he intended to serve the subpoena. He was not in the process of serving the subpoena when he was injured and his injuries were not brought about by the activity of subpoena serving. Because Rivas's injuries did not arise out of the very occasion for his employment, i.e., the serving of the subpoena, the Fireman's Rule was inapplicable.
*1081 The second sub-issue in this case, which was not discussed by the Court in Tucker, concerns the standard of care that was owed by Oxon Hill and Southern to Rivas, given the inapplicability of the Fireman's Rule. In Maryland, it is well-established premises liability law that the duty of care that is owed by the owner of property to one who enters on the property depends upon the entrant's legal status. Baltimore Gas & Elec. v. Lane, 338 Md. 34, 44, 656 A.2d 307 (1995)("[A] possessor of property owes a certain duty to a person who comes into contact with the property. The extent of this duty depends upon the person's status while on the property."). Ordinarily, one entering onto the property of another will occupy the status of invitee, licensee by invitation, bare licensee, or trespasser. Baltimore Gas & Elec. v. Flippo, 348 Md. 680, 688, 705 A.2d 1144 (1998). "An invitee is a person `on the property for a purpose related to the possessor's business.'" Id. (quoting Lane, 338 Md. at 44, 656 A.2d 307). He is owed a duty of ordinary care to keep the property safe. A licensee by invitation is a social guest to whom is owed the "duty to exercise reasonable care to warn ... of dangerous conditions that are known to the possessor but not easily discoverable." Id. at 689 (quoting Lane, 338 Md. at 44, 656 A.2d 307). A bare licensee is one who enters the property of another with the possessor's knowledge and consent, but for the licensee's own purpose or interest. Wells v. Polland, 120 Md.App. 699, 710, 708 A.2d 34 (1998). He is owed a duty to refrain from willfully or wantonly injuring him "and from creating `new and undisclosed sources of danger without warning'" him. Flippo, 348 Md. at 689, 705 A.2d 1144 (quoting Wagner v. Doehring, 315 Md. 97, 102, 553 A.2d 684 (1989)). Finally, "a trespasser is one who intentionally and without consent or privilege enters another's property." Flippo, 348 Md. at 689, 705 A.2d 1144. He is owed the most limited duty: to refrain from willfully or wantonly injuring or entrapping. Id.
As the Court observed in Flowers, however, public officials and employees who enter upon land pursuant to a privilege do not fit easily into this matrix of classifications. Because they are privileged to enter the property, they are not trespassers. Yet, because they generally do not receive an invitation from the possessor to enter onto the property, they are "not literally either an invitee or licensee." Flowers v. Sting Security, Inc., 62 Md. App. 116, 126, 488 A.2d 523 (1985), aff'd sub nom. Flowers v. Rock Creek Terrace, supra. Usually, public employees such as postal workers, sanitary and building inspectors, garbage men, and tax collectors are considered invitees who are owed a duty of due care. Flowers, 308 Md. at 444, 520 A.2d 361; see also W. Prosser, The Law of Torts, § 61 (5th ed.1984). Their invitee status is explained on the ground that they enter onto private property for reasons related to the possessor's business, either to confer a direct benefit on the possessor (e.g., trash removal or mail delivery) or to enable the possessor to legally conduct business (e.g., the various types of inspectors and revenue officers). Flowers, 308 Md. at 444, 520 A.2d 361.
In this case, Rivas did not enter upon Oxon Hill's and Southern's property to provide a direct benefit to them or to any of the residents of their apartment complex; nor did he do so to advance a particular business purpose they might have had. Oxon Hill and Southern maintain that, for these reasons, the trial court correctly categorized Rivas as a bare licensee on the premises, to whom no duty of ordinary care was owed. We disagree.
Although the specific task that Rivas entered upon the grounds of the apartment complex to perform on the evening in question may not have been for the direct benefit of Oxon Hill and Southern, as business entities, or any of the apartment dwellers; as individuals, the overall public safety benefit conferred by law enforcement officers upon business owners and individuals enured to the benefit of Oxon *1082 Hill and Southern, their tenants, and their tenant's visitors. Indeed, it is because they confer a public safety benefit that law enforcement officers and firefighters are privileged to enter upon private property to begin with.
Even before the Court of Appeals in Flowers rejected premises liability law as a proper vehicle for analyzing the Fireman's Rule, it had recognized that that rule did not apply to a firefighter or police officer who had sustained injuries "after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that risk." Aravanis v. Eisenberg, 237 Md. 242, 252, 206 A.2d 148 (1965). In Flowers, the Court reiterated that observation, adding: "In these situations a fireman or policeman is owed a duty of care." 308 Md. at 448, 520 A.2d 361. Logic would dictate, therefore, that a police officer or firefighter who is injured while entering upon property, but before the period of anticipated risk and not from a peril reasonably foreseeable as part of that risk, also would be owed a duty of ordinary care. That was precisely the situation in which Rivas sustained his injuries. He had not yet arrived at the location at which he would serve the subpoena and he was not injured in the performance of that job. Nevertheless, he was privileged to enter onto the common area of the premises to obtain access to the apartment at which he expected to serve the subpoena. Under the circumstances, it would seem that if Oxon Hill and Southern owed a duty of ordinary care to others lawfully entering onto the common area of the apartment complex, they would owe an equivalent duty of care to Rivas, absent evidence to distinguish the two.
It is well-settled in Maryland that a landlord who leases a portion of his property to tenants and reserves another portion of the property for the common use of the tenants must exercise ordinary care to keep the common area reasonably safe. Shields v. Wagman, 350 Md. 666, 673-74, 714 A.2d 881 (1998); Macke Laundry Serv. Co. v. Weber, 267 Md. 426, 435, 298 A.2d 27 (1972); Windsor v. Goldscheider, 248 Md. 220, 222, 236 A.2d 16 (1967); Langley Park Apartments, Sec. H., Inc. v. Lund Adm'r, 234 Md. 402, 407, 199 A.2d 620 (1964). "[L]andlord liability in common areas is generally premised on the control a landlord maintains over the common areas. This duty stems in part `from the responsibility engendered in the Landlord by his having extended an invitation, express or implied, to use the portion of the property retained by him.'" Shields, 350 Md. at 674, 714 A.2d 881 (quoting Landay v. Cohn, 220 Md. 24, 27, 150 A.2d 739 (1959)). The landlord's duty to exercise reasonable care to keep common areas safe extends not only to his tenants but also to his tenants' guests. Sezzin v. Stark, 187 Md. 241, 250, 49 A.2d 742 (1946); Murray v. Lane, 51 Md.App. 597, 601, 444 A.2d 1069 (1982).
In the case sub judice, the parking lot over which Rivas was walking when he slipped and fell was a common area of the apartment complex retained by Oxon Hill and Southern for the use of tenants and their guests and over which Oxon Hill and Southern maintained control. Thus, Oxon Hill and Southern already owed to their tenants and their tenants' guests a duty of ordinary care to keep the parking lot reasonably safe. It was undisputed that the parking lot was accessible to and used by tenants and their guests at all hours of the day and night. There was no evidence that the law enforcement purpose for Rivas's entry upon the parking lot caused him to come upon it at a time or in a manner implicating risks above and beyond those the tenants and guests of tenants entering upon the property might encounter. As we see it, therefore, neither public policy nor premises liability law justifies drawing a distinction between the duty owed by Oxon Hill and Southern to tenants and their guests entering upon the common area parking lot by express or implied invitation and the duty owed by *1083 them to Rivas, who entered upon the same property by privilege.
Because Rivas was owed a duty of ordinary care, liability in this case was a jury question.
JUDGMENT REVERSED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEES.
NOTES
[1] Although called the "Fireman's Rule," the doctrine applies to firefighters and police officers. Flowers v. Sting Security, Inc., 62 Md. App. 116, 124, n. 1, 488 A.2d 523 (1985), aff'd sub nom. Flowers v. Rock Creek Terrace, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264387/ | 744 A.2d 529 (1999)
Edwin N. McKAMEY, Jr. and Helen G. McKamey, his wife, Plaintiffs,
v.
Robert J. VANDER HOUTEN, Rhonda Matteson and Rhonda Matteson d/b/a A.R. Gamez Transport, Defendants.
Civil Action No. 99C-02-133-JOH.
Superior Court of Delaware, New Castle County.
Submitted: September 7, 1999.
Argued: September 8, 1999.
Decided: October 19, 1999.
Frederick T. Haase, Jr., of Haase & Eveland, Wilmington, DE, for plaintiffs.
Gilbert F. Shelsby, Jr., of Mason, Ketterman, Morgan & Shelsby, Newark, DE, for defendants.
*530 OPINION
HERLIHY, Judge.
Claiming that this Court lacks personal jurisdiction over them, the defendants have moved to dismiss plaintiffs' complaint. The basis of their argument is that the alleged underlying tort action occurred in Maryland, that they are Florida residents and that they have no real connection to Delaware.
Plaintiff Edwin N. McKamey, Jr.,[1] a Delaware resident, was injured while driving his truck in Maryland when it was struck by another truck operated by defendant Robert J. Vander Houten, a Florida resident. He was driving for defendant Rhonda Matteson d/b/a A.R. Gamez Transport, an unincorporated Florida entity. A.R. Gamez hauls cars between either New England or New York/New Jersey and Florida. Its only connection to Delaware is passing through it on U.S. 13 or Interstate 95 on these interstate trips.
Despite this slight connection to Delaware, federal law requires A.R. Gamez to designate a registered agent in this state, as well as any other state its trucks pass through. Vander Houten does not have any similar obligation. Plaintiffs served both defendants by serving the Delaware registered agent of A.R. Gamez.
As to A.R. Gamez, its motion raises an issue of first impression in Delaware: whether its federally mandated designation of a registered agent here gives this Court personal jurisdiction over it for a tort action occurring in another state, when it otherwise has no substantive contacts in or with this state. This Court holds that it does. Since that requirement does not apply to Vander Houten, this Court does not have personal jurisdiction over him.
*531 APPLICABLE STANDARD
When a motion to dismiss challenges personal jurisdiction, the plaintiff has the burden to show the basis for the Court's jurisdiction over a nonresident defendant.[2] The plaintiff satisfies this burden by making a prima facie showing that jurisdiction is conferred by statute.[3] The essential facts necessary to resolve the jurisdictional issues presented here are not in dispute.
DISCUSSION
Plaintiffs rely upon two statutes in an attempt to meet their burden. The first is the Delaware long-arm statute[4] and the second is the federal Motor Carrier Act.[5] This Court will address the applicability of these statutes first as to A.R. Gamez.
When determining whether jurisdiction is conferred by the long-arm statute, this Court is required to follow a two-part analysis.[6] First, the Court looks to see if the actions of A.R. Gamez fall under either the general or specific jurisdictional criteria of the statute. Second, the Court must then determine whether exercising personal jurisdiction over A.R. Gamez is constitutionally permissible.[7] Among the provisions of the long-arm statute, only three have any possible application to this case. They are:
(c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent:
(1) Transacts any business or performs any character of work or service in the State;
(2) Contracts to supply services or things in this State;
* * * * * *
(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.[8]
The plaintiffs cannot show A.R. Gamez's actions satisfy any of these provisions. A.R. Gamez conducts no business here and there is no indication that it performs any work or service in this State. Nor have plaintiffs shown that A.R. Gamez has contracted to supply services or things in Delaware. In short, plaintiffs cannot satisfy subsections (1) or (2). They can satisfy, however, one part of subsection (4) which is that there was a tortious act outside Delaware. But, that alone is not enough since they cannot also show A.R. Gamez, the alleged tortfeasor, had any substantive contacts in this state. In short, the plaintiffs cannot utilize the long-arm statute to gain personal jurisdiction over A.R. Gamez.[9] The unavailability of the long-arm statute means this Court need not engage in the analysis of the *532 constitutional implications of applying the statute.
The plaintiffs, however, do not rely alone upon the long-arm statute to gain personal jurisdiction over A.R. Gamez. They also invoke the federal Motor Carrier Act, which requires A.R. Gamez, as an interstate carrier, to "designate an agent in each State in which it operates ... on whom service of process issued by a court with subject matter jurisdiction may be brought...."[10] Designation of such an agent operates as an express consent to personal jurisdiction.[11] One of the purposes behind this designation provision was to protect United States citizens from injury resulting from the negligent actions of interstate carriers.[12]
Some time ago this Court held, however, that the Act could not be used to obtain personal jurisdiction over a nonresident interstate carrier when the event occurred during intrastate commerce.[13] In this case, on the other hand, the event at issue occurred when A.R. Gamez' truck was engaged in interstate commerce.
In that situation, nearly all federal and State courts which have considered the effect of the Act have held that it enables plaintiffs to obtain personal jurisdiction over an interstate carrier in states where they do not do business, but in which they are registered, for incidents occurring in a third state.[14] Though written over fifty years ago, the words used by the Court in Sansbury still accurately describe a purpose of the Motor Carrier Act in allowing actions in circumstances such as this case:
It would appear from the terms of the [Motor Carrier] Act ... that such motor carriers are treated as if physically present in each of the States through which they are licensed to operate, and, although they may not have physical property and station agents at all times within each jurisdiction, they are, for the purpose of answering process of the *533 courts of such jurisdiction, legally to be found therein and inhabitants thereof.[15]
Following the theme of the Sansbury court, it has also been held that the express consent of the Motor Carrier Act eliminates the need to engage in the minimum contacts constitutional analysis when state long-arm statutes are invoked. The Court in Ocepek explained the reason why such analysis is unnecessary:
Our reliance on the federal statute as sufficient to confer jurisdiction over the person of the defendant makes it unnecessary for us to address ... minimum contacts under the state long-arm statute.. . . In most cases, service on out-of-state businesses is made under state long-arm statutes, with no other basis for valid service of process asserted by the plaintiff. In that situation, of course, jurisdiction depends on the plaintiff's being able to fit the case within the state statute, which, then, must also be tested for fundamental fairness under the minimum-contacts doctrine. Nothing in any of the cases cited establishes, nor could there be any reason for believing, that Congress could not provide another method of service by legislation under the Commerce Clause.[16]
This statement is important for two reasons. First, as noted earlier, when jurisdiction is sought under a long-arm statute, i.e., considered to be implied consent to jurisdiction, the courts must engage in a two-part analysis. Based on the reasoning of Ocepek, such two-part analysis is eliminated. Second, the Ocepek court's reasoning is important in the context of Delaware precedent. Delaware has a statute requiring any foreign corporation seeking to qualify to do business here to designate a registered agent.[17] In Sternberg v. O'Neil,[18] the Delaware Supreme Court held this statute was an express consent statute.[19] Even so, the Sternberg court felt constrained to engage in a minimum contacts analysis. An examination of that analysis, however, indicates it was undertaken because, out of caution, the Court was concerned with the implied consent undertones present in the factual context of Sternberg (a double derivative action against an Ohio corporation and a Delaware corporation which was a wholly-owned subsidiary of that Ohio corporation which had also qualified to do business here by designating a registered agent).
There is a key and obvious difference between a state statute such as a long-arm statute or one like the statute considered in Sternberg and the registration provision of the federal Motor Carrier Act. The latter was and is a legitimate exercise by Congress of its powers to regulate interstate commerce. "Minimum contacts" analysis is a due process analysis of a state statute, in part made necessary to determine if a state's attempted exercise of jurisdiction infringes on interstate commerce. Consequently, when Congress exercises its constitutional authority over interstate commerce, that aspect of the due process analysis is irrelevant. While, therefore, the Sternberg court found it necessary to conduct a minimum contacts analysis, such an analysis need not be made in this instance. In sum, A.R. Gamez' designation of a registered agent in Delaware in compliance with the Motor Carrier Act operates as express consent to the jurisdiction of this Court to hear and try this case.
On the other hand, such designation and consent of A.R. Gamez applies only to that entity (and/or Rhonda Matteson) but not to Vander Houten. The Act does not require him, as an interstate driver, to designate a registered agent here. The same courts which have held that a *534 carrier's designation of an agent confers personal jurisdiction have also held that the Motor Carrier Act does not apply to the driver.[20] Without express consent of the Motor Carrier Act, plaintiffs' only other means to obtain jurisdiction over Vander Houten is provided by Delaware's long-arm statute. There is no activity delineated by the long-arm statute applicable to the facts of this case. The accident was in Maryland. Vander Houten does not conduct and has not conducted any activity in this state which would trigger the long-arm statute. He may have driven through Delaware while going between New York and Florida, but such activity does not itself satisfy any of the jurisdictional thresholds of Delaware's long-arm statute. As to plaintiffs' action against Vander Houten, therefore, it must be dismissed.
CONCLUSION
For the reasons stated herein, the motion to dismiss of defendants Rhonda Matteson, Rhonda Matteson d/b/a A.R. Gamez Transport is DENIED. The motion to dismiss of defendant Robert J. Vander Houten is GRANTED.
NOTES
[1] Plaintiff Helen G. McKamey's claim is for loss of consortium.
[2] Plummer & Co. Realtors v. Crisafi, Del.Super., 533 A.2d 1242, 1244 (1987).
[3] Mid-Atlantic Machine & Fabric, Inc. v. Chesapeake Shipbuilding, Inc., Del.Super., 492 A.2d 250, 253 (1985).
[4] 10 Del.C. § 3104.
[5] 49 U.S.C. § 13304(a) formerly 49 U.S.C.A. § 10330 which was recodified, effective January 1, 1996, to its current designation. (Pub. L.No. 104-88). Prior to being § 10330, it was 49 U.S.C. § 321(c).
[6] Outokumpu Engineering Enterprises, Inc. v. Kvaerner Enviropower, Inc., Del.Super., 685 A.2d 724, 727 (1996).
[7] See Waters v. Deutz Corp., Del.Supr., 479 A.2d 273 (1984).
[8] 10 Del.C. § 3104.
[9] Accord Mathews v. Rail Express, Inc., D.C.N.D.Ga., 836 F.Supp. 873 (1993); Maroshek v. East Penn Trucking Co., D.C.D.C., 1992 WL 101621 (1992).
[10] 49 U.S.C.A. § 13304(a).
[11] Knowlton v. Allied Van Lines, 8th Cir., 900 F.2d 1196, 1200 (1989).
[12] Ocepek v. Corporate Transport, Inc., 8th Cir., 950 F.2d 556, 559 (1991) (For a more extensive discussion of the Congressional purpose behind the Motor Carrier act, see the court's discussion on page 559.)
[13] Goode v. Sisk, Del.Super., 107 A.2d 891 (1954); accord Davies v. Mahanes, 4th.Cir., 183 F.2d 671 (1950).
[14] Ocepek, 950 F.2d 556 (plaintiff, a Missouri resident, brought suit in that state against a New York-based carrier for an accident in Ohio); Rounds v. Rea, D.C.W.D.N.Y., 947 F.Supp. 78 (1996) (New York plaintiff brought suit in that state against a Michigan trucking company for an accident in Pennsylvania); Mittlestadt v. Rouzer, 213 Neb. 178, 328 N.W.2d 467 (1982) (Nebraska resident can sue an Arkansas trucking company for injuries received in an automobile accident in Arizona); Sansbury v. Schwartz, D.C.D.C., 41 F.Supp. 302 (1941) (a Maryland resident can sue a Delaware trucking company in the District of Columbia for an accident in Delaware); see also Domingo v. Paul, D.C.Md., 1992 WL 333842 (1992) (Maryland resident permitted to sue in that state a Massachusetts trucking company for an automobile accident in New Jersey; the trucking company, however, had some Maryland contacts); Knowlton, 900 F.2d 1196 (Minnesota resident was able to sue Delaware trucking company in Minnesota for an accident in Iowa; trucking company did business in Minnesota and registered there under state law but in dicta court said Motor Carrier Act would provide sufficient express consent); Mullinax v. McNabb-Wadsworth Truck Co., D.C.N.D.Ga., 117 F.R.D. 694 (1987) (in dicta, court stated Act could be used by Georgia residents to get jurisdiction over Tennessee corporation for an accident in a third state the Tennessee corporation was also registered to do business in Georgia); accord in property damages cases, Hirsch v. National Van Lines, Inc., 136 Ariz. 304, 666 P.2d 49 (1983); Electronic Race Patrol, Inc. v. National Trailer Convoy, Inc., D.C.S.D.N.Y., 191 F.Supp. 364 (1961); compare Clark v. Babbitt Brothers, Inc., 260 S.C. 378, 196 S.E.2d 120 (1973) (court held South Carolina resident could use Act to sue in South Carolina a Wisconsin interstate carrier for an accident in Kentucky the accident, however, occurred after the Wisconsin carrier had ceased doing any business or having any connection to South Carolina).
[15] Sansbury, 41 F.Supp. at 303.
[16] Ocepek, 950 F.2d at 557, n.1.
[17] 8 Del.C. § 371.
[18] 550 A.2d 1105 (1988).
[19] Id. at 1110, 1107.
[20] Domingo, D.C.Md., 1992 WL 333842; Rounds, D.C.W.D.N.Y. 947 F.Supp. 78. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346122/ | 169 Ga. App. 51 (1983)
311 S.E.2d 491
CLOUD
v.
THE STATE.
66705.
Court of Appeals of Georgia.
Decided November 28, 1983.
Lawrence Lee Washburn III, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Michael *54 Whaley, Margaret V. Lines, Assistant District Attorneys, for appellee.
CARLEY, Judge.
Appellant was convicted of two counts of shoplifting. He appeals the judgments of conviction.
1. Appellant first enumerates as error the general grounds. The evidence showed that appellant and a woman were at a shopping mall at which special temporary booths had been erected for an antiques show. Appellant and the woman stopped at one of the booths. While the vendor, Mr. Dunn, was talking with some other customers, appellant reached into an unlocked display case and removed a certain unique antique straight razor. Another vendor observed appellant's actions and alerted Mr. Dunn. A third vendor, Mr. Longan, notified mall security personnel while Mr. Dunn followed appellant. Mr. Longan then assumed the task of following appellant. Outside of the mall Mr. Longan observed appellant sit down on a bench and retrieve a gold chain necklace from the sleeve of a jacket he was carrying. Appellant removed and discarded the chain's price tag, then slipped the necklace over the head of his woman companion. The woman concealed it inside her turtleneck sweater.
*52 After sitting on the bench for a few minutes, appellant and the woman attempted to reenter the mall. At that time, appellant was apprehended by mall security personnel, and the stolen straight razor was found in his pocket. The necklace, recovered from the woman, was discovered to have been stolen from the display of another mall vendor.
Appellant, testifying in his own behalf at trial, admitted that he had taken the razor from the display case and then had exited the mall. Although the bench where he and the woman had sat was a distance of two city blocks from Mr. Dunn's display, appellant testified that he had intended to return to Mr. Dunn's booth to purchase the razor, or to discuss its price with the vendor. Appellant denied any knowledge of the necklace, stating that he had not given it to the woman and that he did not know how she got it.
The evidence, although conflicting, was sufficient to support appellant's convictions. "It is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury's verdict. [Cit.] Based on the evidence presented at trial, we are satisfied that any rational trier of fact could have found the appellant guilty beyond a reasonable doubt. [Cits.]" King v. State, 157 Ga. App. 733, 734 (278 SE2d 491) (1981).
Appellant asserts that, as to the necklace, the evidence that appellant committed the theft was entirely circumstantial. "The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence exclude[d] every reasonable hypothesis except that of guilt, not that it removed every possibility of the innocence of the defendant. [Cits.] Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is a question for the jury where the jury is properly instructed. [Cit.] The conflicting evidence in this case was presented to the jury and the jury resolved that conflict adversely to the appellant." Barfield v. State, 160 Ga. App. 228, 230 (286 SE2d 516) (1981). "After a careful review of the trial transcript and record we find, and so hold, that a rational trier of fact (the jury in the case sub judice) could easily have found the defendant guilty beyond a reasonable doubt of the offense of shoplifting. [Cits.]" Grizzle v. State, 155 Ga. App. 91, 92 (270 SE2d 311) (1980).
2. Appellant's second enumeration of error is that the trial court failed to exclude from the evidence a statement made by appellant when he was apprehended by a mall security guard. Appellant maintains that the statement should have been excluded because it *53 was not supplied to him prior to trial in response to his discovery motion filed pursuant to OCGA § 17-7-210 (Code Ann. § 27-1302).
Appellant's statement was admitted into evidence through the testimony of Mr. Longan. Mr. Longan was present when appellant was approached by the security guard, and he heard the guard ask whether appellant had a razor with him. According to Mr. Longan, appellant replied that he did have a razor, and that he had brought the razor with him to the mall. No objection was made to this testimony. Mr. Longan was cross-examined, and he was subsequently excused as a witness with the consent of appellant's counsel.
The following day, counsel for appellant moved that the testimony as to appellant's statement be stricken, and that appropriate curative instructions be given. Appellant's counsel stated that, prior to Mr. Longan's testimony at trial, he was unaware that such a statement had been made, and that the state had not supplied him with a copy of the statement as required by OCGA § 17-7-210 (Code Ann. § 27-1302). The trial court denied the motion.
Even assuming without deciding, for purposes of the instant appeal, that the provisions of OCGA § 17-7-210 (Code Ann. § 27-1302) apply to a statement made while a person is in the custody of private security personnel, we find that appellant waived this ground of appeal by his failure to make a timely objection to Mr. Longan's testimony.
The procedural posture of the instant matter is quite similar to that which we addressed in Henderson v. State, 162 Ga. App. 320 (292 SE2d 77) (1982). In that case, the defendant sought to exclude certain witnesses' testimony on the basis of the state's failure to comply with the requirements of OCGA § 17-7-210 (Code Ann. § 27-1302). However, the motion was not made until after the witnesses' entire testimony, including cross-examination, had been completed. We held there, and we hold here, that such objection was untimely. "[W]hen this evidence was offered by the state, [appellant] made no objection to its admission. `By this action (he) waived any objection which might have been urged . .. It is well settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection.' [Cits.]" Henderson, supra at 323.
Judgment affirmed. Deen, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346004/ | 556 N.W.2d 23 (1996)
251 Neb. 189
Tarsha HULETT, Appellant,
v.
RANCH BOWL OF OMAHA, INC., a Nebraska Corporation, Appellee.
No. S-95-014.
Supreme Court of Nebraska.
December 6, 1996.
*25 Richard J. Rensch, of Raynor, Rensch & Pfeiffer, P.C., for appellant.
Brian D. Nolan and Michael T. Findley, of Hansen, Engles & Locher, P.C., for appellee.
WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, CONNOLLY, and GERRARD, JJ.
CONNOLLY, Justice.
The appellant, Tarsha Hulett, was attacked with a glass beer mug by another patron in the women's restroom at the Ranch Bowl in Omaha, Nebraska, while attending an after-hours dance. Hulett commenced this action against the Ranch Bowl, asserting that its negligence was the proximate cause of injuries she sustained in the attack. A jury entered a verdict in favor of Hulett for $25,000. In setting aside this verdict, the district court held that the attack of Hulett was sudden and unexpected and was therefore unforeseeable. We reverse, because we conclude that the evidence and proper inferences adduced therefrom were sufficient to allow a jury to conclude that the attack of Hulett was foreseeable and could have been prevented by the Ranch Bowl.
BACKGROUND
On May 17, 1992, at approximately 1 a.m., Hulett went to the Ranch Bowl for an after-hours dance party for persons over the age of 18. While in the women's restroom, Hulett was assaulted by Trina Wells with a glass beer mug. As a result, Hulett suffered multiple lacerations to nerves in her face and a tendon in her hand, requiring surgical repair.
In her amended petition, Hulett alleged that the Ranch Bowl's negligence was the proximate cause of these injuries. In particular, Hulett claimed the Ranch Bowl negligently failed to provide adequate security personnel and safety procedures and failed to clean up all glassware in the women's restrooms. It was also alleged that the Ranch Bowl knew, or should have known, that Hulett could be assaulted by another patron.
At trial, Hulett offered the testimony of Damien Turner, a former employee of the Ranch Bowl. Although not employed at the Ranch Bowl on May 17, 1992, Turner had worked the after-hours dance parties on several occasions. Turner was hired to work these dances because of his past work with gang members in the Omaha area, as well as his familiarity with violent criminal cases gained while employed by the county attorney's office. These experiences allowed him to act as a peacemaker or go-between for any potential fights between patrons. According to Turner, approximately three fights would occur each night he worked at the Ranch Bowl.
The usual security routine for after-hours dances consisted of a check of identification at the door as well as a pat down for any weapons or contraband. Approximately 15 security personnel, including police officers, private security, or civilian officers, would then patrol around inside the establishment during the actual dance. Turner testified that Ranch Bowl policy required him to check the men's restrooms for fights, drugs, alcohol, and gambling. While making these checks, Turner would routinely find alcohol bottles and glassware in the restrooms that had not been removed prior to the beginning of the dance. Turner stated that he specifically requested his supervisors *26 to hire more female security personnel to check the women's restrooms for the same problems. In Turner's opinion, the Ranch Bowl simply did not employ enough female security personnel to adequately pat down incoming female patrons while simultaneously checking the women's restrooms.
Hulett testified that there was a "whole bunch" of glassware on the counter and on the floor in the women's restroom. According to Hulett, she received no warning of the ensuing attack against her with a glass beer mug because it "came out of the blue." When asked, Hulett said she could not pinpoint anything specific that would have alerted the Ranch Bowl that she was about to be attacked.
Ed George, a retired police officer and present security officer at the Ranch Bowl, testified that adequate security personnel were "scattered" all over the establishment on May 17. George also stated that he was unaware of any glassware in the restrooms that evening and that in his 6 years of working at the Ranch Bowl, he has never been aware of an attack in the women's restrooms. Based upon this experience, George did not consider glassware to pose a security hazard.
Similar testimony was offered by George DeWitt, an Omaha police officer who was the security manager at the Ranch Bowl on May 17. DeWitt stated that prior to Hulett's attack, glassware was not considered a safety issue. Although arguments had taken place in the restrooms on prior occasions, DeWitt testified that no fights or injuries had occurred. DeWitt further acknowledged that it was the policy of the Ranch Bowl to have security personnel check the restrooms for problems but not to specifically pick up glassware, although common sense would tell one to pick up glasses sitting on the counters. In DeWitt's opinion, a glass could constitute a dangerous weapon or instrument.
Ranch Bowl's final witness was its general manager, Ross Olsbo. According to Olsbo, some glassware was in the women's restrooms that night. Olsbo also asserted that there had never been a fight or altercation in a Ranch Bowl restroom prior to the attack of Hulett. Ranch Bowl moved for a directed verdict at the end of Hulett's case and once again at the close of the evidence. These motions were denied, and the case was submitted to the jury. A $25,000 verdict in favor of Hulett was returned. Subsequent to this verdict, the Ranch Bowl timely moved for a judgment notwithstanding the verdict. In granting this motion, the district court wrote:
Upon a thorough review of this case, it is apparent from the evidence that both the altercation and resulting injury to the plaintiff all happened suddenly and unexpectedly, without any warning, and by the exercise of reasonable care could not have been foreseeable, anticipated, discovered, or prevented by the defendant.... Further, the defendant had no chance to intervene.
Hulett appeals.
ASSIGNMENT OF ERROR
Hulett's sole assignment of error is that the district court incorrectly sustained Ranch Bowl's motion for judgment notwithstanding the verdict.
STANDARD OF REVIEW
On a motion for judgment non obstante veredicto, or notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the evidence. McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996); Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 (1996). In order to sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion. Id.
ANALYSIS
Hulett argues that a judgment notwithstanding the verdict should not have been entered in this case because a jury could reasonably have concluded, in light of the *27 evidence produced at trial, that the attack in the restroom was foreseeable and could have been prevented by the Ranch Bowl.
We begin by noting that an owner of property is not an insurer of the land or the visitor's safety while on it. However, a business does owe a duty of reasonable care to a patron. This duty was first enunciated by this court in Hughes v. Coniglio, 147 Neb. 829, 25 N.W.2d 405 (1946). In adopting the business invitee duty rule set forth in the Restatement of Torts § 348 (1934), now Restatement (Second) of Torts § 344 (1965), the Hughes court stated:
The modern general rule, summarized in its simplest terms, is that the proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to members of the public while upon the premises for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons, if the proprietor by the exercise of reasonable care could have discovered that such acts were being done or were about to be done, and could have protected the members of the public by controlling the conduct of the third persons or by giving a warning adequate to enable them to avoid harm.
147 Neb. at 833, 25 N.W.2d at 408.
Whether a business proprietor is liable for the adverse actions of a third party against an invitee depends primarily upon whether those actions were reasonably foreseeable to the proprietor. In the Hughes case, the facts established that a minor was injured in a restaurant as a result of two patrons' fighting. This court upheld the dismissal of the claim after noting that the restaurant was not a place known for fights or disorderly conduct. As such, the injury to the patron was sudden and unexpected and could not, by the exercise of reasonable care, have been predicted or prevented by the restaurant owner. In reaching this conclusion, the court stated that "the standard of care required [by a business proprietor] is graduated according to the danger attendant upon the activities of the business pursued and depends upon the facts and circumstances surrounding each particular case." 147 Neb. at 832-33, 25 N.W.2d at 408.
A similar analysis was employed in Erichsen v. No-Frills Supermarkets, 246 Neb. 238, 518 N.W.2d 116 (1994), wherein we held that a supermarket could be liable for injuries a customer received in the parking lot after being attacked, beaten, and robbed by a purse snatcher. The plaintiff in that case pled facts alleging 10 incidents of similar criminal activity in the parking lot and surrounding premises during the 16-month period prior to the assault. In reversing the sustaining of No-Frills' demurrer, we held such previous criminal activity constituted sufficient notice to No-Frills that criminal acts upon its customers were reasonably foreseeable.
Foreseeability was also an issue in S.I. v. Cutler, 246 Neb. 739, 523 N.W.2d 242 (1994), where this court held the Cutlers, owners of a building, were liable to a person assaulted in the elevator. After recognizing that prior acts or events may establish whether the acts of third parties are foreseeable, we noted that other business invitees had been assaulted on previous occasions. Furthermore, complaints about the assailant had been made to the Cutlers prior to the assault of the plaintiff. We held these facts imposed a duty on the Cutlers to take reasonable precautions to protect business invitees on their premises. See, also, K.S.R. v. Novak & Sons, Inc., 225 Neb. 498, 406 N.W.2d 636 (1987) (whether history of criminal activity at leased premises makes assault on tenant foreseeable is question for trier of fact).
Unlike at the restaurant in Hughes v. Coniglio, supra, the evidence in the instant case establishes that altercations occur on a regular basis at the Ranch Bowl during the after-hours dances. Turner testified that an average of three fights occurred every night he worked. In fact, Turner was specifically hired to work at the Ranch Bowl because of his expertise in acting as a peacemaker in preventing fights among patrons. The Ranch Bowl acknowledged the potential for fights, as reflected by its policy of having security personnel periodically check the restrooms for fights. Indeed, the abundance of security personnel and pat-down checks *28 for weapons at the door were indicative of what could be described as a war zone.
The district court entered a judgment notwithstanding the verdict, apparently focusing on the fact that the attack on Hulett was sudden and came without warning. The specific attack in question may have occurred suddenly and unexpectedly as to Hulett. However, whether the Ranch Bowl is liable depends upon whether the attack was reasonably foreseeable by the Ranch Bowl. As made apparent by the cases cited above, the previous acts of third parties are to be examined in determining whether an injury to a patron was foreseeable. This point was made clear in Erichsen v. No-Frills Supermarkets, 246 Neb. 238, 241, 518 N.W.2d 116, 119 (1994), which states that a possessor of land may
"know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford reasonable protection."
(Emphasis omitted.) (Quoting Restatement (Second) of Torts § 344, comment f. (1965).)
The fact that Hulett and the Ranch Bowl were not expecting Wells to attack Hulett makes little difference, for the existence of "many occasions of `similar' criminal activity in one fairly contiguous area in a limited timespan may make further such acts sufficiently foreseeable to create a duty to a business invitee." Erichsen v. No-Frills Supermarkets, 246 Neb. at 243, 518 N.W.2d at 120.
Whether a history of criminal activity makes an assault foreseeable is a question of fact. K.S.R. v. Novak & Sons, Inc., supra. Giving Hulett the benefit of all proper inferences adduced from the evidence, we cannot say that the attack on Hulett was unforeseeable as a matter of law. The evidence adduced at trial clearly supports a jury verdict against the Ranch Bowl for failure to use reasonable care to protect Hulett. The Ranch Bowl recognized the importance of checking the restrooms for altercations or fights. Furthermore, DeWitt, Ranch Bowl's security manager, acknowledged that glassware can be used as a dangerous weapon. This, coupled with the evidence establishing the routine existence of fights during the after-hours dances, was sufficient to allow a jury to conclude that the attack on Hulett was, in fact, foreseeable and that the Ranch Bowl failed to effectively prevent it by either removing the glassware from the restrooms or providing adequate security personnel to patrol the restrooms for fights or altercations between patrons.
CONCLUSION
Under the facts of this case, whether the assault of Hulett was foreseeable and could have been prevented by the Ranch Bowl was a question of fact for the jury. Because the evidence and the proper inferences adduced therefrom clearly support the jury verdict against the Ranch Bowl, the district court erred in entering a judgment notwithstanding the verdict. Accordingly, the judgment of the district court is reversed, and this cause is remanded with directions to reinstate the jury verdict.
REVERSED AND REMANDED WITH DIRECTIONS.
WRIGHT, J., not participating.
FAHRNBRUCH, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264380/ | 14 Cal.App.4th 1615 (1993)
18 Cal. Rptr.2d 431
THE PEOPLE, Plaintiff and Respondent,
v.
KEVIN DEWAYNE WALKER, Defendant and Appellant. In re KEVIN DEWAYNE WALKER on Habeas Corpus.
Docket Nos. B062817, B072094.
Court of Appeals of California, Second District, Division Four.
April 16, 1993.
*1618 COUNSEL
John Paul Shaby, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner..
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, Pamela C. Hamanaka and Arthur H. Auerbach, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
HOFFMAN, J.[*]
A.
DEFENDANT'S APPEAL
INTRODUCTION
Following trial by jury, defendant was convicted of attempted murder in the second degree (Pen. Code, § 664/187, subd. (a), count 1)[1] and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 2). The allegations in both counts that defendant personally used a dangerous weapon, a knife (Pen. Code, § 12022, subd. (b)), and personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7) were found to be true. Defendant thereafter admitted two of the alleged prior convictions. He was sentenced to state prison for a total of 14 years. Defendant timely appealed.
*1619 CONTENTIONS
1. The trial court erred in refusing defense counsel's request to instruct the jury with CALJIC Nos. 4.30 and 4.31.
2. The trial court erred in failing to instruct the jury sua sponte on the lesser offense of attempted voluntary manslaughter.
3. If the court had no sua sponte duty to instruct on voluntary manslaughter, defendant was denied effective assistance of counsel by his counsel's failure to request such instructions.
FACTUAL STATEMENT
Prosecution Case.
On April 14, 1991, at approximately 6:30 p.m., Michael Reilly went to a coworker's house for a barbecue. While at her home he met her son, Kevin White. After a few hours they decided to leave the house and go bowling or play video games. On the way they stopped at the apartment of White's sister, Sylvia. In the hallway of her apartment, they met defendant, Sylvia's neighbor. Reilly did not know defendant. The three men spent one-half hour in Sylvia's apartment and then decided to go to Santa Monica Pier to play video games.
After playing video games at the pier, they went to Venice Beach, parked near the boardwalk and walked toward rocks which entered the ocean, like a jetty. White walked ahead while defendant and Reilly followed, walking side by side. When they arrived at the rocky area, defendant told Reilly to look to his left, and when he did so, defendant grabbed him from behind and started to stab him.
Reilly screamed, "Help. He's got a knife. He's trying to kill me." White, who was then 10 to 15 feet ahead, turned around. Defendant stabbed Reilly in the chest, under his arm and on his cheek. Reilly fell to the ground and defendant stabbed him in the back of his head. White ran to defendant, grabbed him, and talked him out of continuing his attack on Reilly. He noticed that defendant looked "weird" and "spaced-out."
White heard defendant say, "He's looking bad. He's looking bad. I might as well ice him now." White responded, "Man, this is a friend. This is my mom's friend. I can't let you do this to him." When White asked defendant why he attacked Reilly, defendant said Reilly reminded him of someone who *1620 raped his sister a long time ago. Defendant disappeared behind a wall and reemerged wearing different clothing. White took Reilly back to his car and drove him to UCLA Medical Center where he remained for seven days. White called the police from the hospital and told them where they could find defendant.
Defendant was arrested the following day. He was with Stephanie Hunter. When defendant was informed that he was under arrest for assault with a deadly weapon the night before, Hunter overheard and said that was impossible because defendant had been with her at that time.
Defense Case.
Hunter testified that she lived with defendant. The day before his arrest, defendant used drugs during the afternoon and evening hours. Later that evening, White and Reilly came to her apartment and then left with defendant. When defendant left he was "mumbling" and acting "weird." Defendant came home at midnight; he was crying and acting "weird."
Dr. Kaushal Sharma, a forensic psychiatrist, testified that he had spoken with defendant about his use of drugs. He testified about the effects of cocaine and a drug called "ice." He said those drugs can make a person behave aggressively and do things he might not do if not under the influence of the drug.
DISCUSSION
I
The trial court did not err in refusing to give CALJIC Nos. 4.30 and 4.31
(1) Defendant contends the court erred in refusing his request to instruct the jury with CALJIC Nos. 4.30[2] and 4.31.[3] We disagree.
CALJIC No. 4.30 serves to instruct a jury that a defendant who is "unconscious" at the time of the commission of the crime cannot be found *1621 guilty of the crime. CALJIC No. 4.31 sets forth a presumption of consciousness. These instructions state the fundamental principle expressed in Penal Code[4] section 26, subdivision Four (formerly subd. Five),[5] that a defendant cannot be adjudged guilty of any crime with which he is charged if he committed the act while unconscious. (People v. Wilson (1967) 66 Cal.2d 749, 761 [427 P.2d 820]; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, §§ 214, 215, pp. 246-249.)
Unconsciousness caused by voluntary intoxication is, however, governed by section 22,[6] not section 26. (People v. Conley (1966) 64 Cal.2d 310, 323-324 [49 Cal. Rptr. 815, 411 P.2d 911].) Although voluntary intoxication may at times amount to unconsciousness, it cannot give a complete defense under section 26, subdivision Four; it can only negate specific intent under section 22. (People v. Baker (1954) 42 Cal.2d 550, 575 [268 P.2d 705]; People v. Alexander (1960) 182 Cal. App.2d 281, 289-290 [6 Cal. Rptr. 153]; 1 Witkin & Epstein, supra, § 217, pp. 250-251, and see §§ 212, 213, pp. 243-246.) Section 22 has been incorporated into CALJIC Nos. 4.20, 4.21, and 4.22.[7] These instructions were properly read to the jury in light of the evidence that defendant was voluntarily intoxicated with narcotics at the *1622 time of the incident. Therefore, the trial court did not err in refusing to instruct the jury with CALJIC Nos. 4.30 and 4.31.
II
The trial court had no sua sponte duty to instruct the jury on attempted voluntary manslaughter.
(2) Defendant's contention the trial court had a sua sponte duty to instruct the jury on attempted voluntary manslaughter is likewise unmeritorious.
Defendant maintains that since the "entire defense" hinged on defendant's lack of the requisite intent to kill for attempted murder, "the trial court [had] a duty under [People v.] Saille [(1991) 54 Cal.3d 1103 (2 Cal. Rptr.2d 364, 820 P.2d 588)] to instruct as to the possibility that [defendant's] voluntary intoxication negated the intent to kill which would reduce the matter to a voluntary manslaughter, if the jury so found." (Italics added.)
Defendant acknowledges that People v. Saille (1991) 54 Cal.3d 1103 [2 Cal. Rptr.2d 364, 820 P.2d 588] holds the trial court does not have a sua sponte duty to instruct on attempted voluntary manslaughter when there is evidence of a defendant's voluntary intoxication, but asserts that Saille "does not apply to this case" because it does not specifically address the question how voluntary intoxication relates to the mental state "intent to kill."
We disagree with defendant's analysis of Saille and find, contrary to defendant's assertions, the Supreme Court's holding in that case is directly relevant to the issues defendant raises on this appeal. In Saille, the court held that abolition of the diminished capacity defense eliminated the concept of "`diminished capacity voluntary manslaughter' (nonstatutory manslaughter)" as a defense, explaining that now, when an intentional killing is shown, malice aforethought is established. (54 Cal.3d at p. 1114.)[8] However, the court held a defendant is still free to show that, because of voluntary intoxication, the intent to kill was not in fact formed. (54 Cal.3d at pp. 1116-1117.)
The Saille court explained: "[U]nder the law relating to mental capacity as it exists today, it makes more sense to place on the defendant the duty to request an instruction which relates the evidence of his intoxication to an *1623 element of a crime, such as premeditation and deliberation. This is so because the defendant's evidence of intoxication can no longer be proffered as a defense to a crime but rather is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt. In such a case the defendant is attempting to relate his evidence of intoxication to an element of the crime. Accordingly, he may seek a `pinpoint' instruction that must be requested by him [citation], but such a pinpoint instruction does not involve a `general principle of law' as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court. The court did not err, therefore, in failing to instruct sua sponte." (54 Cal.3d at p. 1120, italics added.)
Most of the foregoing passage from Saille is quoted with approval in an attempted murder case, People v. Morales (1992) 5 Cal. App.4th 917, 927 [7 Cal. Rptr.2d 358]. In Morales, the court specifically held the trial court had no sua sponte duty to instruct on attempted voluntary manslaughter and that, if there was sufficient evidence of intoxication to support an instruction on the absence of intent to kill due to voluntary intoxication, the obligation was on the defendant to request it. (Ibid.)
Here, defendant's counsel did request "pinpoint" instructions relating defendant's voluntary intoxication to the intent to kill element of attempted murder and, as we discussed above, those instructions, CALJIC Nos. 4.21 and 4.22 (see fn. 7, ante), were read to the jury. Thereafter, defendant's counsel argued to the jury his theory of the case, that defendant did not have the intent to kill for attempted murder, as charged in count 1, because his voluntary intoxication negated that specific intent and, therefore, he could only be guilty of the general intent crime of assault, as charged in count 2.
Under both Saille and Morales, the trial court had no sua sponte duty to instruct the jury on the lesser crime of attempted voluntary manslaughter. Accordingly, the trial court did not err in failing to do so.
III
Defendant was not denied effective assistance of counsel.
(3a) Defendant asserts that if the court had no sua sponte duty to instruct the jury on attempted voluntary manslaughter, then defendant's counsel should have requested those instructions and his failure to do so demonstrates defendant was denied effective assistance of counsel. We disagree.
(4) A convicted defendant's claim that counsel's assistance was so defective as to require reversal of his conviction has two components. *1624 (People v. Ledesma (1987) 43 Cal.3d 171, 216 [233 Cal. Rptr. 404, 729 P.2d 839].) First, the criminal defendant must show his counsel's performance was deficient. (Ibid.; People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) In addition, the defendant must establish prejudice before he can obtain relief on an ineffective-assistance claim. (People v. Ledesma, supra, 43 Cal.3d at p. 217.)
In determining whether defense counsel's performance was deficient, a court must exercise deferential scrutiny. (People v. Ledesma, supra, 43 Cal.3d at p. 216.) The first and fundamental reason for such deference involves the danger of second-guessing trial counsel. (Ibid.) That is so, because the means of providing effective assistance are many and, as a consequence, counsel has wide discretion in choosing which means to use. (Ibid.) Further, systematic "second guessing" by appellate courts might have adverse consequences on the quality of legal representation provided to criminal defendants and on the functioning of the criminal justice system itself. (Ibid.)
Therefore, if the record shows trial counsel's challenged acts or omissions resulted from an informed tactical choice within a range of reasonable competence, the conviction must be affirmed. (People v. Pope, supra, 23 Cal.3d at p. 425.) In contrast, where the record reveals that counsel has failed to research the law or investigate the facts in the manner of a reasonably diligent and conscientious advocate, and that defendant was prejudiced as a result, the conviction should be reversed on the ground of deprivation of adequate assistance of counsel. (Id. at pp. 425-426.) Of course, the burden of proving a claim of inadequate assistance at trial is on the appellant. (Id. at p. 425.)
(3b) On this record, it appears counsel's decision, to attempt to negate the specific intent to kill element of attempted murder and argue defendant could then only be guilty of assault, was an informed one among his tactical alternatives. He did not have the option to argue before the jury for a reduction of the offense to attempted voluntary manslaughter because of defendant's voluntary ingestion of drugs, which is the premise on which defendant bases his arguments on appeal. That is true because had counsel been successful in negating the intent to kill element necessary for the jury to find attempted murder, the jury likewise could not have found the elements of attempted voluntary manslaughter, which also requires an intent to kill.
As we discussed, ante, in Saille, the court explained that, when the diminished capacity defense was abolished, the concept of "`diminished *1625 capacity voluntary manslaughter' (nonstatutory manslaughter)" as a defense was eliminated (54 Cal.3d at p. 1114) and, now, when the intent to kill is shown, malice is also established (ibid.). Thus, the traditional distinction between murder and voluntary manslaughter the absence of malice is no longer viable when the issue is whether the voluntary ingestion of drugs negated the defendant's intent to kill and, therefore, malice. Thus, in the instant case, evidence of defendant's voluntary intoxication did not support a request for instructions to the jury on attempted voluntary manslaughter.[9]
(5) Manslaughter is the unlawful killing of a human being without malice; it is voluntary manslaughter when the killing is "upon a sudden quarrel or heat of passion." (§ 192, subd. (a); CALJIC No. 8.40 (1989 rev.); People v. Saille, supra, 54 Cal.3d at p. 1114.) Thus, "[s]ection 192 ... negates malice when the intentional killing results from a sudden quarrel or heat of passion induced by adequate provocation." (People v. Saille, supra, 54 Cal.3d at p. 1114.) If there is no adequate provocation, or the passion has had time to subside, the killing will not be reduced from murder to manslaughter. (1 Witkin & Epstein, supra, § 491, pp. 555-556; CALJIC Nos. 8.42, 8.43.)
(3c) In this case, as in People v. Daniels (1991) 52 Cal.3d 815, 868 [277 Cal. Rptr. 122, 802 P.2d 906], there was no evidence of provocation by Reilly and no evidence that defendant was "in the `heat of passion'" when he attacked Reilly. That defendant was bent on revenge for his sister's long-ago rape was insufficient to warrant manslaughter instructions. (Id. at p. 868.) The rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter. (Ibid.) Moreover, the record is barren of evidence that defendant's acts were excusable or justifiable or that defendant honestly but unreasonably believed he was acting in self-defense.
Here, defense counsel's theory of the case was that there was an absence of the intent to kill and thus the only crime of which defendant could be convicted was assault. Based on the record before this court, we cannot say that counsel's choice of that theory was a tactical decision which would not be made by a diligent, ordinarily prudent lawyer. (People v. Pope, supra, 23 Cal.3d at p. 424.)
To the contrary, trial counsel conducted himself in a manner to be expected of a reasonably competent attorney acting as a diligent advocate and his challenged acts or omissions did not result in the withdrawal from *1626 defendant of a potentially meritorious defense. (23 Cal.3d at p. 425.) Therefore, since counsel's performance was not deficient, defendant has failed to meet his burden to establish his claim of inadequate trial counsel. (Ibid.)
B.
DEFENDANT'S PETITION FOR WRIT OF HABEAS CORPUS[*]
.... .... .... .... .... .... .... .
DISPOSITION
The judgment on appeal is affirmed in its entirety.
.... .... .... .... .... .... .... .[*]
Woods (A.M.), P.J., and Epstein, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part B, the petition for writ of habeas corpus, and the last sentence of the Disposition pertaining to the habeas corpus petition.
[*] Judge of the Municipal Court for the Los Angeles Judicial District, sitting under assignment by the Chairperson of the Judicial Council.
[1] The court, not having instructed the jury regarding first and second degree murder, by nunc pro tunc order of August 19, 1991, found the crime of which defendant was convicted in count 1 to be attempted murder in the second degree.
[2] CALJIC No. 4.30 states, in pertinent part: "A person who commits what would otherwise be a criminal act, while unconscious, is not guilty of a crime. [¶] This rule of law applies to persons who are not conscious of acting but who perform acts while ... [under] the involuntary taking of drugs."
[3] CALJIC No. 4.31 states: "If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged crime the defendant acted as if he were conscious, you should find that he was conscious, unless from all the evidence you have reasonable doubt that the defendant was in fact conscious at the time the alleged crime. [¶] If the evidence raises a reasonable doubt that the defendant was in fact conscious, you must find that he was then unconscious."
[4] All further references are to the Penal Code unless otherwise specified.
[5] Section 26, subdivision Four provides in part: "All persons are capable of committing crimes except those belonging to the following classes: [¶].... Four Persons who committed the act charged without being conscious thereof."
[6] Section 22 provides: "(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged. [¶] (c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance."
[7] CALJIC No. 4.20 was read as follows: "The law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. [¶] In the crime charged in Count 2, Assault with a Deadly Weapon, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve him of responsibility for the crime."
CALJIC No. 4.21 was read as follows: "In the crime of attempted murder of which the defendant is accused in Count I of the information, a necessary element is the existence in the mind of the defendant of the specific intent to kill. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether defendant had such specific intent. [¶] If from all the evidence you have reasonable doubt whether the defendant formed such specific intent, you must find that he did not have such specific intent."
CALJIC No. 4.22 was read as follows: "Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect or when he willingly assumes the risk of that effect. [¶] Voluntary intoxication includes the voluntary ingestion, injection or taking by any other means of any intoxicating liquor, drug or other substance."
[8] Section 192 defines voluntary manslaughter as the "unlawful killing of a human being without malice. ... [¶] ... upon a sudden quarrel or heat of passion." (Italics added.)
[9] Had Reilly been killed, involuntary manslaughter instructions would have been proper. (People v. Saille, supra, 54 Cal.3d at p. 1117.)
[*] See footnote, ante, page 1615. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2568720/ | 346 F.Supp.2d 741 (2004)
REGIONAL EMPLOYERS' ASSURANCE LEAGUES VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION TRUST
v.
Robert G. TRUAX, et al.
No. Civ.A. 04-4360.
United States District Court, E.D. Pennsylvania.
November 19, 2004.
*742 Jeanne D. Bonney, Koresko & Associates, P.C., Bridgeport, PA, for Plaintiff.
William L. Ryan, Archer & Greiner, Philadelphia, PA, for Defendants.
MEMORANDUM
BARTLE, District Judge.
Before the court is the motion of plaintiff to remand this action to the Court of Common Pleas of Montgomery County, Pennsylvania on the ground that removal was untimely.
Plaintiff, Regional Employers' Assurance Leagues Voluntary Employees' Beneficiary Association Trust, a multiple employer welfare benefit plan, has brought a declaratory judgment action through PennMont Benefit Services, Inc., its plan administrator, pursuant to the Employees Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq., against RPS & V Corporation and Roberto Truax, individually and in his capacity as CEO and Vice President of RPS & V Corporation. Plaintiff contends that Mr. Truax, on behalf of himself and RPS & V, took actions that were against the interest of the plan and potentially jeopardized plan assets.
On June 9, 2004, plaintiff commenced this action in the state court by filing a praecipe for a writ of summons. See Pa. R. Civ. P. 1007(1), 1351. On June 14, 2004, service of the writ on both defendants took place. The complaint was served on August 20, 2004, and defendants filed a notice of removal on September 14. On October 6, 2004, plaintiff followed with the instant motion to remand.
The removal statute requires that "the notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceediniff. *743 based." 28 U.S.C. § 1446(b). Plaintiff argues that the writ of summons was the initial pleading which put defendants on notice that a federal question was involved. Since defendants removed the action more than 30 days after the writ was served, plaintiff contends that removal was out of time. Defendants maintain that they did not become aware of a federal question until the service of the complaint and that they acted in a timely fashion thereafter.
The key question we must decide is whether plaintiffs writ of summons provided adequate notice to defendants of federal jurisdiction and thereby triggered the thirty-day period for removal. Our Court of Appeals addressed this issue in Foster v. Mutual Fire, Marine and Inland Ins. Co., 986 F.2d 48 (3d Cir.1993). In that case, the Court held that " § 1446(b) requires defendants to file their Notices of Removal within thirty days after receiving a writ of summons, praecipe, or complaint which in themselves provide adequate notice of federal jurisdiction." Foster, 986 F.2d at 54. The Court explained that the notice of federal jurisdiction must be found on the face of the filing, regardless of what information may be known or supplied to the defendants from other sources. Thus, in determining whether a defendant has adequate notice of federal jurisdiction, our inquiry "begins and ends within the four corners of the pleading." Id. at 53, 54. In short, we must decide "whether the document informs the reader, to a substantial degree of specificity, whether all the elements of federal jurisdiction are present." Id. at 53 (quoting Rowe v. Marder, 750 F.Supp. 718, 721 (W.D.Pa.1990)).
In the instant case, the writ of summons identified the names of the parties and contained the sentence, "You are hereby notified that the REGIONAL EPLOYERS' ASSURANCE LEAGUES VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION TRUST by Penn-Mont Benefit Services, Inc., Plan Administrator, has commenced an action against you." The caption of the writ also stated, "ERISA and other relief." Unlike the subsequent complaint, no other allegations or facts were set forth. Plaintiff submits that the inclusion of "ERISA and other relief in the writ of summons was sufficient to put defendants on notice that a federal claim for relief was being alleged. We agree. ERISA is a long-standing and widely known acronym for the Employees Retirement Income Security Act, a statute enacted by Congress, which establishes claims for relief over which the federal courts have subject matter jurisdiction. See 29 U.S.C. § 1132(e)(1). Defendants were aware or should have been aware from reading the writ of summons that plaintiff was asserting a cause of action cognizable in the federal courts. Defendants were served with the writ on June 14, 2004. Because they did not file their removal notice within thirty days thereafter, removal of the action to this court was untimely.
Plaintiff also contends that it is entitled to attorneys' fees in connection with the removal petition. It submits that this court "may require the payment of fees and costs by a party which removed a case which the court then remanded, even though the party removing the case did not act in bad faith." Mints v. Educational Testing Service, 99 F.3d 1253, 1259 (3d Cir.1996) (citations omitted). We agree with plaintiff that removal was improper in this case and that defendants could have been more diligent in examining the writ of summons. However, we do not find defendants' assertions of jurisdiction in their notice of removal were either frivolous or so "insubstantial" so as to justify an award of counsel fees to plaintiff. See Thomas v. Hanley, CIV.A. No. 97-2443, *744 1997 WL 563402, at *7 (E.D.Pa.1997) (citing Mints, 99 F.3d at 1261).
Accordingly, we will grant the motion of plaintiff to remand this action to the Court of Common Pleas of Montgomery County, Pennsylvania. Plaintiffs request for attorneys' fees and costs will be denied.
ORDER
AND NOW, this 19th day of November, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of plaintiff to remand this action to the Court of Common Pleas of Montgomery County, Pennsylvania is GRANTED; and
(2) plaintiffs request for attorneys' fees and costs is DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346014/ | 789 P.2d 624 (1990)
109 N.M. 676
Robert PENNINGTON, Claimant-Appellee,
v.
CHINO MINES, Kennecott and Mitsubishi Partnership, Keenan & Associates, Respondents-Appellants.
No. 11533.
Court of Appeals of New Mexico.
March 1, 1990.
*625 Beverly J. Singleman, Hubert & Hernandez, P.A., Las Cruces, Frederick H. Sherman, Sherman & Sherman, P.C., Deming, for claimant-appellee.
Charles E. Stuckey, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for respondents-appellants.
OPINION
ALARID, Judge.
Appellant Chino Mines (employer) appeals the hearing officer's award of attorney's fees to appellee Pennington (claimant) under the interim provisions of the Workers' Compensation Act. NMSA 1978, § 52-1-54(C)(2) (Cum.Supp. 1986). Employer challenges the hearing officer's judgment on the grounds that the evidence does not support the findings that employer acted in reckless disregard of the rights of claimant and that claimant suffered an economic loss. Claimant argues, in part, that employer's failure to submit findings and conclusions prior to entry of the judgment and order precludes evidentiary review by this court. We agree with claimant and affirm the hearing officer's decision. In addition, claimant requests we remand for determination of the issue of prejudgment interest. We find the hearing officer decided the issue and that remand is unnecessary.
This matter came before the hearing officer on March 3, 1989. The hearing officer indicated the proceedings would be bifurcated, and the issues of bad faith and economic loss were argued on that date. Arguments as to the total dollar amount of attorney's fees and a motion to supplement *626 the record, together with closing arguments, were left for a later date. Claimant filed his petition for attorney's fees on March 17, 1989, filed a motion to supplement the record on March 27, 1989, and filed requested findings of fact and conclusions of law on April 14, 1989.
Claimant's petition for attorney's fees and motion to supplement were argued at a hearing which occurred on April 18, 1989. At that time, the hearing officer indicated the parties could anticipate receiving a decision within approximately a week. The hearing officer entered findings and conclusions on April 25, 1989, and rendered a judgment and order on May 10, 1989. Employer then filed requested findings and conclusions on May 12, 1989.
We first note that under the Interim Act a hearing officer's decision is reviewable by this court "in the manner provided for other cases." NMSA 1978, § 52-5-8(B) (Cum.Supp. 1986). In cases tried to the district court, a party must tender requested findings of fact and conclusions of law prior to the entry of judgment. University of Albuquerque v. Barrett, 86 N.M. 794, 528 P.2d 207 (1974); Gilmore v. Baldwin, 59 N.M. 51, 278 P.2d 790 (1955). We apply a similar rule to administrative proceedings tried by hearing officers of the workers' compensation division. Under Section 52-5-7(B), following an evidentiary hearing, a workers' compensation hearing officer is required to file a decision with the director within thirty days, unless the time for filing the decision is extended by the director. The decision also is required to contain findings of fact and conclusions of law. The failure of a party to file a timely request for findings of fact and conclusions of law, precludes evidentiary review by this court. See Macnair v. Stueber, 84 N.M. 93, 500 P.2d 178 (1972); see also SCRA 1986, 1-052(B)(1)(f).
Employer submits, and we agree, that Rule 1-052(B)(1)(h) requires that counsel be allowed a reasonable opportunity to submit requested findings and conclusions. However, we disagree with employer's contention that since the hearing officer did not specify a date for the submission of requested findings and conclusions, employer's failure to timely make such requests should not preclude review of the evidence in this case. Employer was aware that claimant's requested findings and conclusions were filed on April 14, 1989, and that a decision from the hearing officer was forthcoming within approximately a week of the April 18, 1989 hearing. Moreover, as noted above, Section 52-2-7(B) requires the hearing officer to file a written decision, including findings of fact and conclusions of law, within thirty days. Employer had ample opportunity to submit requests. Nothing in the record before us indicates employer was deprived of the right to submit requests to the hearing officer and have them considered prior to entry of judgment. See Gillit v. Theatre Enter., Inc., 71 N.M. 31, 375 P.2d 580 (1962).
Employer also argues that requested findings were submitted in sufficient time to allow the hearing officer to amend his findings or make additional findings pursuant to Rule 1-052(B)(2). We find this argument without merit. Employer made no motion pursuant to Rule 1-052(B)(2) or any applicable statutory provisions. See Kipp v. McBee, 78 N.M. 411, 432 P.2d 255 (1967). Further, nothing in the record indicates employer's requests were in any way brought to the attention of the hearing officer or that the hearing officer took any action concerning the issues now on appeal subsequent to the entry of judgment on May 10, 1989. See Gillit v. Theatre Enter., Inc. Accordingly, we decline to review the evidence in this case due to employer's failure to timely submit requested findings and conclusions for the hearing officer's consideration prior to entry of judgment.
In his answer brief, claimant argues the hearing officer erred by failing to decide the issue of prejudgment interest and requests we remand for determination of that issue. Claimant submitted proposed findings and conclusions on the issue of prejudgment interest and argues the hearing officer failed to rule on the issue in his decision since there are no specific references to prejudgment interest in the hearing officer's adopted findings and conclusions.
*627 The hearing officer's final adopted conclusion of law states that any findings and conclusions "not expressly adopted are hereby expressly rejected." Further, failure to make a specific finding of fact is regarded as a finding against the party with the burden of establishing that fact. Gibbons & Reed Co. v. Bureau of Revenue, 80 N.M. 462, 457 P.2d 710 (1969); Brundage v. K.L. House Constr. Co., 74 N.M. 613, 396 P.2d 731 (1964). The hearing officer's express rejection of findings not adopted and his failure to include findings regarding prejudgment interest indicate rejection of the factual basis for claimant's argument. We do not address the correctness of the hearing officer's decision because the only question claimant properly brings before us is whether the issue was decided. Thus, the issue of prejudgment interest was decided by the hearing officer, and claimant's request for remand is denied.
For the above reasons, the judgment of the hearing officer is affirmed. Claimant is awarded $1,000 in attorney's fees, to be paid by employer, for defending this appeal.
IT IS SO ORDERED.
DONNELLY and APODACA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827088/ | Order Michigan Supreme Court
Lansing, Michigan
September 6, 2011 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
143048 Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
EVANGELINE HALL, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 143048
COA: 290147
Calhoun CC: 06-002001-NH
NEYSA BARTLETT, D.O., MANSION
STREET OBSTETRICS & GYNECOLOGY,
P.C., MARTHA WALSH, M.D., MARK
WALKER, M.D., CARON WARNSBY,
M.D., CARON WARNSBY M.D., P.C.,
GENERAL SURGICAL ASSOCIATES,
P.C., and GENERAL SURGICAL
ASSOCIATES-WMB,
Defendants,
and
OAKLAWN HOSPITAL,
Defendant-Appellant.
________________________________________/
On order of the Court, the application for leave to appeal the March 29, 2011
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 6, 2011 _________________________________________
d0829 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1728127/ | 473 S.W.2d 275 (1971)
SUCCESS MOTIVATION INSTITUTE, INC., Appellant,
v.
JAMIESON FILM COMPANY, Appellee.
No. 5061.
Court of Civil Appeals of Texas, Waco.
November 11, 1971.
Rehearing Denied December 2, 1971.
*277 Vernon L. Smith, Waco, for appellant.
Charles P. Storey, Dallas, for appellee.
OPINION
JAMES, Justice.
Appellee Jamieson Film Company sued Appellant Success Motivation Institute, Inc. (hereinafter called SMI) for a $94,746.10 balance of debt alleged due and interest from October 1, 1969, plus attorney's fees under Article 2226, Vernon's Ann.Tex.St., plus exemplary damages in amount of $50,000.00 and costs. Appellee-Plaintiff pitched his suit (Second Amended Original Petition) on the following alternative theories:
(1.) Upon a written agreement as evidenced by a letter dated June 18, 1969 (attached as Exhibit A to Plaintiff's pleadings) whereby Plaintiffs agreed to provide professional services in the production of a motion picture training film for Defendant, and to sell and deliver color prints thereof mounted on reels and packaged for a specified price, depending on the length of the film. Plaintiff alleged that it produced the film for Defendant and produced 350 color film prints thereof and delivered them to Defendant, together with protection internegatives, sound tract negatives, and related items.
(2.) That the film prints sold and delivered to defendant and were each a part or component of a kit or package put together by Defendant and sold by Defendant to its distributors, called a Distributorship Training Program; which also included manuals and tapes and that such film prints were "materials furnished" by Plaintiff to Defendant within the meaning of Article 2226, V.A.T.S.;
(3.) Upon "sworn account" within the meaning of Article 2226, V.A.T.S.; (Plaintiff's Pleadings were sworn to and supported by Exhibit B) and
(4.) Upon quantum meruit theory which theory was not thereafter urged.
Exhibit A, the letter which Plaintiff-Appellee alleges to be the written contract between the parties, is in the following language.
*278
"JAMIESON FILM COMPANY
MOTION PICTURE PRODUCERS
SINCE 1916
3825 Bryan Street
Dallas, Texas 75204
AREA CODE 214Taylor 3-8158
JUNE 18, 1969
Mr. Robert A. Green,
Director of Public Relations
Success Motivation Institute, Inc.
P. O. Box 7614
Waco, Texas 76710
Dear Bob:
This letter is to confirm our verbal agreement for your 45-50 minute 16MM color sales training film. The price of $16,350.00 includes two versions of the basic film (#1-DPM, #2-DPL) with variations in main title and four internal scenes. This price includes our providing the office set, the speaker to camera set, complete camera and sound crew with all necessary production equipment, titling, editing and laboratory services, etc., through first answer prints.
It is understood that you will direct the film and supply the acting talent. You will also provide special props required in the speakers set.
The above price is based on four days stage shooting and a maximum of 8,000 feet of camera film exposed, processed and printed. In the event that actual production time and film use differs from these amounts, we will charge extra or credit a balance at the rates of $500.00 per shooting day and .25 per foot of film. We also will provide the release prints of these films but exact price will depend on the final length when the films are completed.
Based on a printing length of 1,600 feet, 200 or more color release prints of each version will be priced at $157.00 mounted on reel in can with double shipping case and take-up reel. Any variation under 1,600 feet will be credited @ .05 per foot; any variation over 1,600 feet will be charged @ .10 per foot. (NOTE: Footage price over 1,600 feet is adjusted to include larger reel, can and case if required).
Further, we understand that delivery of up to 300 prints of Version #1 may be required for your August 11 meeting in Houston.
Invoicing and payment will be as follows:
PRODUCTION:
(1). One-half due at start of production.
(2). One-half due on approval of #1-DPM Answer Print.
RELEASE PRINTS:
(1). One-half due on placement of print order.
(2). One-half due on delivery of print order.
Sincerely,
/s/ Lloyd B. Abernathy
Lloyd B. Abernathy,
Vice-President
ACCEPTED FOR SUCCESS MOTIVATION
INSTITUTE, INC.
BY: /s/ Robert Arch Green
DATE: 6/18/69 ".
Exhibit B, the letter which Plaintiff uses to support his sworn account theory, is in the following language:
"October 17, 1969
Mr. Charles G. Williams
Success Motivation Institute, Inc.
P. O. Box 7614
Waco, Texas 76710
Dear Mr. Williams:
I attempted to reach you on the telephone today but without success. Hopefully this letter will be on your desk Monday and serve the same purpose.
In the past few weeks, Mr. Lloyd Abernathy of our Company has devoted considerable *279 time in discussing with you the cost figures on your recent film productions. I believe he has fully covered the pricing basis for these charges which are in full accordance with the agreement established prior to beginning production.
Although the agreement specified advance payments on placement of print orders, we extended the courtesy of credit to your company anticipating prompt payment after delivery was complete on each order. However, no payment has been received to date on prints, or in the extra charges incurred in the production phase. Below is a recapitulation of the outstanding balance with State Sales Tax omitted since you have furnished a Tax Exemption Statement.
Production, Basic Charge $16,350.00
Production extras per Invoice 2,493.10
Previously Paid (16,677.00)
____________
Production Balance $ 2,166.10
Prints & Extra Internegs. (DPM) 53,830.00
Prints (DPL) 38,750.00
___________
BALANCE DUE $94,746.10
Since the agreement specified the balance due and payable on completion of each order, I request that you forward payment of the above total at this time.
Bruce Jamieson, President".
Yours very truly,
Trial was to a jury which found in accordance with the following numbered special issues that:
(1.) In signing the letter of June 18, 1969, Robert Arch Green had authority to act for defendant, SMI;
(2.) The sum of money owed by Defendant SMI to Jamieson for film prints, extra internegatives and production extras is $94,746.10;
(3.) The sum of money found to be a reasonable attorneys fee for Plaintiffs in this case is $13,275.00;
(4.) No answer and none necessary;
(5.) (A.) The Defendant SMI acted with malice in failing to pay any money to Plaintiff for the film prints furnished and delivered by Plaintiff;
(B.) Plaintiff should be awarded $6580.00 as exemplary damages;
(6.) Jamieson failed to make timely delivery of film prints to SMI; (but)
(7.) SMI suffered no damage as result of such failure;
(8.) (A.) SMI waived any complaint of late delivery by Jamieson; (and)
(B.) SMI is estopped to deny that Jamieson made timely delivery of the film prints.
The trial court entered judgment in accordance with the verdict in favor of Jamieson against SMI for $123,601.18, same being the debt of $94,746.10, interest of $9000.88 from October 1, 1969 to date of judgment, attorneys fees of $13,275.00, exemplary damages of $6580.00 and costs.
Appellant assails the trial court's judgment on four points, the first being that Appellee's pleadings, proof and special issues (submitted by appellee) are insufficient, incomplete and inadequate for the court to grant a judgment for any relief. We do not agree. Appellee-plaintiff Jamieson in its pleadings upon which it went to trial properly and sufficiently set up the letter of June 18, 1969 as a special written contract between the parties which was signed by representatives of both parties. The evidence supports this theory with the only fact issue raised (insofar as the existence of a contract is concerned) being whether or not Mr. Green had authority to act for SMI when he signed this agreement. The jury having found that Mr. Green did have such authority, (amply supported by the evidence) and no ultimate fact issue having been raised insofar as the other elements of the contract being concerned, the trial court's judgment was proper insofar as enforcing the contract is concerned.
The contract basically called for Jamieson to produce two versions of a sales training *280 film, with Jamieson to provide the office set, the speaker to camera set, complete camera and sound crew with all necessary production equipment, titling, editing and laboratory services through the first print; whereas, SMI agreed to furnish direction for the film, supply the acting talent, and special props required in the speaker's set. The contract went on to provide that Jamieson would furnish release prints thereof to SMI, setting out the conditions and basis for the pricing thereof and providing for timing and manner of invoicing and payment.
The evidence shows that the basic trouble between the parties began because Mr. Norfleet, a vice-president of SMI who was the principal actor in the film, either failed or refused to stay with the script proposed for him, and thereby substantially prolonged the length of the film, increased the cost of production, as well as the unit cost of the release prints, and brought about the necessity of having two reels of film and reel cans for each release print instead of one as contemplated by the contract.
The jury's finding that SMI owed Jamieson the sum of $94,746.10 was within the scope of Jamieson's pleadings, and supported by the evidence.
Appellant in his first point in effect contends that the trial court should have submitted an issue to the jury inquiring whether or not the letter of June 18, 1969 constituted a contract, between the parties, and that in refusing to do so, the trial court committed error. We do not agree, because it is a well-settled rule of law that construction of written instruments is a question of law for the court to decide, and not a question of fact for the jury. Sun Oil Co. v. Bennett (Comm.App. 1935) 125 Tex. 540, 84 S.W.2d 447, opinion adopted by the Supreme Court; Brown v. Payne (Sup.Ct.1943) 142 Tex. 102, 176 S.W.2d 306. By that same token, determination of whether a written instrument constitutes a contract or not requires a construction of the instrument, and is therefore addressed to the court and not the jury.
We have carefully considered the entire record, and in our opinion the verdict covers all the disputed ultimate fact issues raised by the evidence, concerning SMI's liability under the contract, and appellant's First Point is overruled.
Appellant's Second Point is in the following language: "The trial court refused to submit issues upon appellant's theory of the case". However, appellant does not set out in his brief any issues which he says he submitted to the court, and which the court refused. Rule 418 subsection (c), Texas Rules of Civil Procedure contains inter alia, the following language: "If complaint is made of any charge given or refused, such charge shall be set out in full." Enlow v. Brown (Dallas Tex.Civ. App.1962) 357 S.W.2d 608, no writ history, dealt with a point almost identical to our appellant's second point, and the Dallas Court of Civil Appeals in overruling this point, had this to say: "In the first place the point is multifarious and too general to be entitled to our consideration. It attempts to lump together in one package all defensive special issues which appellant may have wanted the court to submit without particularizing or designating each issue separately. Thus the point as worded overlooks the possibility that one or more of the issues should have been submitted while possibly others should not have been submitted. (citing cases.)"
A point or assignment of error is multifarious when it embraces more than one specific ground of error or when it attempts in the one point to attack several distinct and separate rulings of the trial court. Johnson-Sampson Construction Co. v. W. & W. Waterproofing Co. (Amarillo Tex. Civ.App.1953) 274 S.W.2d 926, error refused, NRE.
Appellant's Third Point attacks that portion of the trial court's judgment awarding judgment against appellant for $13,275.00 *281 attorneys fees pursuant to the jury finding in connection therewith. We sustain this contention.
Appellee contends that attorneys fees are authorized under Article 2226 V.A.T.S. on two theories: (1) That appellee's cause of action was on a "sworn account"; and (2) that the film prints sold and delivered by appellee to appellant constituted "materials furnished."
At the outset, let us recognize that Article 2226 is penal in character, and must be strictly construed. Van Zandt v. Fort Worth Press (Sup.Ct.1962), 359 S.W.2d 893. Van Zandt also recognizes and restates the general common law rule that in the absence of contract to the contrary, every litigant will compensate his or its own counsel.
Our contract in the instant case makes no provisions for attorneys fees. Judge Calvert, speaking for the Supreme Court in his comprehensive and learned discussion of Article 2226 in Tenneco Oil Co. v. Padre Drilling Co. (Sup.Ct.1970) 453 S.W.2d 814, wherein attorneys fees were denied in a suit on a contract (to drill an oil well) points out (at p. 820) that "a suit based primarily (italics ours) upon a contract for a product or for a general service will not authorize an award of an attorney's fee merely because performance of the contract may require employment of others to render personal services or to perform labor." We think it is reasonable to assume from this reasoning that if a contract is primarily for a product or general service that attorneys fees are not authorized merely because performance of the contract may require some "materials furnished."
Meaders v. Biskamp (1958), 159 Tex. 79, 316 S.W.2d 75 involved a contract between the parties for sale and purchase of certain oil and gas leases. Plaintiff sued for balance of the purchase price and contended his suit was for a "sworn account" and was thereby entitled to attorneys fees. The Supreme Court, in reforming the judgment so as to deny attorneys fees, held that "sworn account" does not mean transactions between the parties resting on special contract. In this connection the Supreme Court says at page 78: "It has been held that a sworn account is defined according to its popular sense and applies only to transactions between persons, in which there is a sale on one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties). It does not mean transactions between parties resting upon special contract." (citing cases.)
"Special Contract" is defined in Eisenbeck v. Buttgen (Dallas Tex.Civ.App. 1970), 450 S.W.2d 696, no writ history, at page 702 as follows: "* * * a `special contract' is one with peculiar provisions or stipulations not found in the ordinary contract relating to the same subject matter and such provisions are such as, if omitted from the ordinary contract, the law will never supply." Also, see Pines California, Inc. v. Miller (Eastland Tex.Civ.App.1969) 446 S.W.2d 91, no writ history, at page 95, quoting 17 C.J.S. Contracts § 10, page 584, the latter also pointing out that a special contract is always an express contract.
The contract in the instant case clearly meets the test of a "special contract" in our opinion, and why so? Because it calls first for the production of a film which in turn calls for the rendition of professional services. Production of this film was a joint endeavor in which both Jamieson and SMI took active parts, with Jamieson providing certain personnel and equipment, and SMI providing other personnel and equipment more particularly hereinabove pointed out. It called for a high degree of professional services and technical Personnel and equipment, partly provided by Jamieson and partly provided by SMI. When production of the film was completed, SMI showed it to its convention *282 in Houston before 400 to 500 people, including 139 distributors represented, together with management people and others. It is true that Jamieson prepared and furnished 350 prints of this film to SMI pursuant to this contract; however, it would be putting a strained construction on Article 2226 to call these prints "materials furnished". These release prints are rather a manufactured product provided pursuant to this special contract between the parties, which prints were used by SMI in their Distributorship Training Programs, but also were used to show at their convention.
However, be that as it may, the instant contract was primarily for professional services as well as a product, and not primarily for the furnishing of "materials" within the meaning of Article 2226.
Where the recovery is based on express contract, it may not at the same time be based on "sworn account" or on "materials furnished," the latter two being implied contract situations. This rule is stated by the Supreme Court in Woodard v. Southwest States, Inc. (Sup.Ct.1964), 384 S.W.2d 674 at p. 675 as follows: "Recovery on an express contract and on quantum meruit are inconsistent. Where there exists a valid express contract covering the subject matter, there can be no implied contract." (citing several authorities.)
Appellee cites George Linskie Co. v. Miller-Picking Corporation (Sup.Ct.1971), 463 S.W.2d 170, wherein attorneys fees were allowed on theory of "materials furnished"; however, the Supreme Court clearly points out that there was no agreement shown for a "turn-key" job on repair of the air conditioners. In our instant case there was such a contract. For this reason our case is analogous to Tenneco and distinguishable from Linskie.
For the above reasons, appellants' third point is sustained.
Appellant's fourth and last point attacks that portion of the trial court's judgment against appellant for $6580.00 exemplary damages. We sustain this contention, and say the trial court should have disregarded the jury's answers to Special Issues Nos. 5A and 5B. This case falls into the category of a suit for breach of contract, for which the proper redress is money judgment for actual damages, but for which exemplary damages are not authorized. In A. L. Carter Lumber Co. v. Saide (1943), 140 Tex. 523, 168 S.W.2d 629, Judge Alexander speaking for the Supreme Court says: "The jury found that the seller was harsh and unreasonable in its dealings with the purchaser, and that its acts in cancelling the contract were willful and oppressive and were accompanied with malice. Based upon these findings, the trial court allowed a recovery for exemplary damages, and the Court of Civil Appeals affirmed the judgment. We are not in accord with this holding. The rule in this State is that exemplary damages cannot be recovered for a simple breach of contract, where the breach is not accompanied by a tort, even though the breach is brought about capriciously and with malice." (citing several authorities in support thereof).
Appellant's fourth point is therefore sustained.
We accordingly affirm the trial court's judgment with the exception of the following changes in which respects the judgment is reformed:
The $13,275.00 attorneys fees and the $6580.00 exemplary damages are hereby deleted from the judgment. Jamieson is awarded judgment against SMI for the debt of $94,746.10 plus interest at the legal rate of 6% per annum from October 1, 1969 and costs of suit.
The costs of appeal are taxed one-half against appellant SMI and one-half against appellee Jamieson.
Reformed and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1345974/ | 708 N.W.2d 778 (2005)
269 Mich. App. 6
ADELL BROADCASTING Corporation, d/b/a WADL TV 38, Plaintiff/Counter-Defendant-Appellant, and
World Religious Relief, Inc., d/b/a Word Network, Plaintiff/Counter-Defendant,
v.
APEX MEDIA SALES, Inc., d/b/a Apex & Apex Media, and Dennis Hart, Defendants/Counter-Plaintiffs-Appellees.
Docket Nos. 256285, 257050.
Court of Appeals of Michigan.
Submitted November 9, 2005, at Detroit.
Decided November 17, 2005, at 9:05 a.m.
Released for Publication February 3, 2006.
*780 Hyman Lippitt, P.C. (by Norman L. Lippitt, Julie Lyons Kosovec, and Daniel J. McCarthy), Birmingham, for Adell Broadcasting Corporation.
Honigman Miller Schwartz & Cohn LLP (by Norman C. Ankers, Ruth E. Zimmerman, and Eric J. Eggan), Lansing, for Apex Media Sales, Inc.; and Dennis Hart.
Before: DAVIS, P.J., and FITZGERALD and COOPER, JJ.
PER CURIAM.
In these consolidated appeals, plaintiff Adell Broadcasting Corporation, doing business as WADL TV 38, appeals by leave granted the trial court's opinions and orders granting partial summary disposition for defendants on their counterclaim for rescission and denying plaintiff's motion for reconsideration. We reverse.
Between 1993 and 2002, defendant Apex Media Sales, Inc. (AMS), was plaintiff's exclusive media representative for national religious and secular broadcast spot and program sales. Several months before the parties ended their relationship, Kevin Adell, plaintiff's president, expressed dissatisfaction with the representation by AMS. He believed that the AMS sales staff was not selling available air time for full value and that AMS personnel, including its president, defendant Dennis Hart, were not available and responsive to plaintiff's needs. AMS and Hart were also dissatisfied with the relationship because plaintiff owed them outstanding commission payments. On February 26, 2002, the parties amended their agreement in an attempt to save the relationship. The parties agreed that plaintiff owed $568,461 in commissions, but AMS would consider an immediate payment of $370,000 as full satisfaction of all commissions owed through December 2001. The parties also agreed that the commission rate for AMS would decrease from 15 percent to 10 percent, that there would be a 30-day termination provision to end the business relationship, and that plaintiff would pay commissions to AMS on 30-day terms. The parties thereafter continued dealing with each other, but their problems did not abate. In April 2002, they severed the relationship.
Plaintiff, and a related company[1] that also dealt with AMS, filed suit against AMS and Hart, alleging several causes of action. Defendants filed a countercomplaint seeking, among other things, rescission of the amended agreement. Plaintiffs sought partial summary disposition on that claim, arguing that defendants were barred from seeking rescission because they did not tender back the $370,000. The trial court found that the $370,000 constituted partial satisfaction of an undisputed debt, so defendant was not obligated to tender it back. Defendants later moved for partial summary disposition on the same claim. The trial court granted the motion, finding that there was no consideration for the amended agreement, and it ordered defendants to amend their countercomplaint to include a claim that the amended agreement was void for lack of *781 consideration. The trial court later denied plaintiffs' motion for reconsideration of its order granting partial summary disposition.
Adell Broadcasting Corporation (hereafter plaintiff) first argues that the trial court erred by refusing to apply MCL 566.1 to the amended agreement. We agree. MCL 566.1 provides:
An agreement hereafter made to change or modify, or to discharge in whole or in part, any contract, obligation, or lease, or any mortgage or other security interest in personal or real property, shall not be invalid because of the absence of consideration: Provided, That the agreement changing, modifying, or discharging such contract, obligation, lease, mortgage or security interest shall not be valid or binding unless it shall be in writing and signed by the party against whom it is sought to enforce the change, modification, or discharge.
The goal of statutory interpretation is to determine and give effect to the intent of the Legislature, and the courts must enforce unambiguous statutory language as it is written. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003).
Defendants argue that MCL 566.1 only applies to contracts involving real or personal property. We disagree. It is a common grammatical rule of construction that a modifying clause will be construed to modify only the last antecedent unless some language in the statute requires a different interpretation. Stanton v. Battle Creek, 466 Mich. 611, 616, 647 N.W.2d 508 (2002). MCL 566.1 addresses the amendment, modification, or discharge of several different legal documents, the last of which is "any mortgage or other security interest in personal or real property." The phrase "in personal or real property" grammatically modifies "mortgage or other security interest." It would be contrary to the plain meaning of the statute and rules of statutory construction to read the modifying phrase "in personal or real property" to modify "any contract, obligation or lease."[2]
We disagree with defendants that In re Certified Question (Bankey v. Storer Broadcasting Co.), 432 Mich. 438, 448 n. 11, 443 N.W.2d 112 (1989), supports their position that MCL 566.1 applies only to cases involving real or personal property, because in that case our Supreme Court specifically declined to address the applicability of MCL 566.1. Nor does Yerkovich v. AAA, 461 Mich. 732, 610 N.W.2d 542 (2000), compel a different conclusion. In Yerkovich, the plaintiff was required to sign a second agreement imposing additional obligations in order to receive what she was owed under the first agreement. The defendant had a preexisting duty to the plaintiff under the first contract, so the plaintiff was not required to assume additional obligations to receive what she was *782 already owed. We are not presented with an issue of preexisting duty here.
In this case, there was a bargained modification to the parties' agreement. It is axiomatic that parties to a contract may contract to modify the contract by a later agreement. Quality Products & Concepts Co. v. Nagel Precision, Inc., 469 Mich. 362, 372-373, 666 N.W.2d 251 (2003). There must be mutual assent for the modification, and a modification will be considered mutual if it is established through clear and convincing evidence of a written agreement establishing a mutual agreement to waive the terms of the original contract. Id. In this case, the parties waived certain terms of their original agreement in a signed writing. In doing so, the parties considered the changes to their advantage. The fact that parties consider it to their advantage to modify their agreement is sufficient consideration. Buck v. Northern Dairy Co., 364 Mich. 45, 49, 110 N.W.2d 756 (1961); MCL 566.1. No other consideration for the amended agreement was necessary.
We nevertheless find additional bargained consideration in this case. The trial court relied on Cochran v. Nat'l Cas. Co., 261 Mich. 273, 246 N.W. 87 (1933), and Leeson v. Anderson, 99 Mich. 247, 248, 58 N.W. 72 (1894), holding that an agreement to discharge the whole debt on payment of only part is inoperative for a lack of consideration. However, partial payment on an undisputed debt may constitute satisfaction of the entire debt on valid consideration. See Tanner v. Merrill, 108 Mich. 58, 60, 65 N.W. 664 (1895); Monroe v. Bixby, 330 Mich. 353, 357, 47 N.W.2d 643 (1951). If consideration exists, the rule that partial payment on an undisputed debt cannot satisfy the whole debt does not apply. Our review of all the pleadings, arguments, and submitted deposition testimony shows that the parties' continuation of their business relationship was consideration for the amended agreement. Because there was consideration, it is possible that the partial payment discharged the entire debt. The trial court has not yet decided this issue. Its ruling that the amended agreement failed for want of consideration requires reversal.
Defendants argue in the alternative that plaintiff's failure to pay for services constituted a complete failure of consideration, which would independently warrant rescission of the amended agreement. Vowels v. Arthur Murray Studios of Michigan, Inc., 12 Mich.App. 359, 363, 163 N.W.2d 35 (1968). There is no enforceable contract where there is a failure of consideration. Freeurger v. Dep't of Mental Health, 161 Mich.App. 316, 320, 409 N.W.2d 821 (1987). Although not decided by the trial court, the issue was presented and we may affirm on an alternative ground for summary disposition. Pro-Staffers, Inc. v. Premier Mfg. Support Services, Inc., 252 Mich.App. 318, 322, 651 N.W.2d 811 (2002). The burden of proving failure of consideration is on the party asserting it. Turner v. Peoples State Bank, 299 Mich. 438, 450, 300 N.W. 353 (1941) (Boyle, J., concurring). We do not find that defendants have met this burden.
Black's Law Dictionary (5th ed.) defines "failure of consideration" as follows:
As applied to notes, contracts, conveyances, etc., this term does not necessarily mean a want of consideration, but implies that a consideration, originally existing and good, has since become worthless or has ceased to exist or been extinguished, partially or entirely. It means that sufficient consideration was contemplated by the parties at time contract was entered into, but either on account of some innate defect in the thing to be given or nonperformance in *783 whole or in part of that which the promisee agreed to do or forbear nothing of value can be or is received by the promisee. It occurs where the thing expected to be received by one party and given by the other party cannot be or has not been given without fault of the party contracting to give it. [Citation deleted.]
Black's Law Dictionary (8th ed.) defines "total failure of consideration" as "[a] situation in which the contract is indivisible so that a complete lack of consideration voids the contract" and notes that the term is misleading in that it really refers to a failure of performance.
In Vowels, we rescinded the parties' contract for failure of consideration because the expected consideration could not be provided, and the defendant was excused from performance by the facts of the case. Id., at 363, 163 N.W.2d 35. The plaintiff and the defendant's agent entered into an agreement for dance lessons for which the plaintiff paid money, but the agent closed the dance studio before the lessons were provided. The closing of the dance studio made performance of the parties' contract impossible. Id. The impossibility of performance of the consideration required the remedy of rescission rather than an action for breach of contract. Similarly, our Supreme Court impliedly equated a complete failure of consideration with impossibility, or at least ineffectuality, of performance. Baith v. Knapp-Stiles, Inc., 380 Mich. 119, 126, 156 N.W.2d 575 (1968). Failure of consideration warranting rescission is different from, and greater than, a mere breach of contract warranting an action for damages. See Abbate v. Shelden Land Co., 303 Mich. 657, 666, 7 N.W.2d 97 (1942). "Rather rescission is permissible when there is failure to perform a substantial part of the contract or one of its essential items, or where `the contract would not have been made if default in that particular had been expected or contemplated.'" Rosenthal v. Triangle Dev. Co., 261 Mich. 462, 463, 246 N.W. 182 (1933), quoting 1 Black, Rescission and Cancellation (2d ed.), p. 553.
Here, the consideration for the amended agreement was the continuation of the parties' business relationship. After the amendment was made, plaintiff actively contacted potential clients and asked them to deal with Hart, and AMS continued to represent WADL TV 38. Nothing in the record reveals that plaintiff hired another marketing firm to handle the business of WADL TV 38, rejected business obtained by AMS, or interfered with the ability of AMS to obtain business for WADL TV 38. The parties continued their business relationship, so there is no question of material fact that there was no failure of consideration. Defendants' breach of contract claim is the appropriate vehicle for resolving plaintiff's failure to pay defendants' claimed outstanding commissions since the amended agreement.
Reversed and remanded. We do not retain jurisdiction.
NOTES
[1] World Religious Relief, Inc., doing business as Word Network, is not a party to this appeal.
[2] This Court and our Supreme Court have reached consistent decisions. See Buck v. Northern Dairy Co., 364 Mich. 45, 49, 110 N.W.2d 756 (1961), Scholz v. Montgomery Ward & Co., Inc., 437 Mich. 83, 89-90, 468 N.W.2d 845 (1991), and Hayes-Albion Corp v. Kuberski, 108 Mich.App. 642, 650, 311 N.W.2d 122 (1981), rev'd in part on other grounds 421 Mich. 170, 364 N.W.2d 609 (1985). See also Thal v. Detroit Bd. of Ed., 316 Mich. 351, 25 N.W.2d 215 (1946) (indicating that when the amount of a claim was liquidated, a release for a lesser amount had been without consideration and void before, but not after, enactment of MCL 566.1), and Industrial Steel Stamping, Inc. v. Erie State Bank, 167 Mich.App. 687, 695, 423 N.W.2d 317 (1988) (agreeing with the trial court that MCL 566.1 obviated the need for consideration in a case involving an agreement unrelated to real or personal property). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346129/ | 205 Wis.2d 620 (1996)
556 N.W.2d 140
STATE of Wisconsin, Plaintiff-Respondent,
v.
Gilbert RODRIGUEZ, Defendant-Appellant.
No. 95-2135-CR.
Court of Appeals of Wisconsin.
Submitted on briefs September 3, 1996.
Decided October 23, 1996.
*623 On behalf of the defendant-appellant, the cause was submitted on the brief of Patrick K. Cafferty of Hanson, Gasiorkiewicz & Weber, S.C. of Racine.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sharon Ruhly, assistant attorney general.
Before Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON, P.J.
Gilbert Rodriguez was convicted on his no contest plea of hit and run in an accident causing death in violation of § 346.67, STATS. The trial court sentenced him to prison and ordered him to pay restitution with the "determination on payment to be determined by Agent." Although the appeal on its face was taken from a judgment of conviction and had the look of a final order, the issue before us proves to be nonfinal. We therefore construe Rodriguez's notice of appeal as a petition for leave to *624 appeal, and we grant the petition as to the issue of causation only.
On appeal, Rodriguez contends that he is not liable for restitution because his only "criminal act," fleeing the scene of a fatal accident, was not a cause of the death of the victim. We affirm the court's decision to order restitution. Section 973.20(1), STATS.,[1] permits the sentencing court to order restitution upon a defendant's conviction of a crime without regard to whether there is a casual link between a specific element of the crime and the victim's damages. There are other issues regarding the restitution order which were not raised in this appeal. Accordingly, we remand to the trial court to allow for their resolution.
On June 17, 1993, at approximately 8:30 p.m., the victim, Casey B., and his companion, were going to another friend's home on their bicycles. The two were riding eastbound on Kinzie Avenue, with the companion riding on the sidewalk and Casey B. riding in the middle of the road. At the intersection of West Boulevard, Casey B. rode his bicycle into the westbound lane of traffic and was swerving from side to side, playing "chicken" with traffic.
According to witnesses, a Cadillac struck Casey B., at which point Casey B. began to slide toward the westbound traffic and was struck a second time by a Lincoln Continental which was following the Cadillac. The Lincoln swerved and rear ended the Cadillac. The Lincoln then fled from the accident scene at a high rate of speed. Casey B. was later pronounced dead from massive head injuries as a result of the accident.
*625 The next day Rodriguez turned himself in, admitted to driving the Lincoln and to being involved in the accident. Rodriguez left the scene because he did not have a valid driver's license, he had pending citations for operating after revocation and he was on probation for drug dealing. He denied striking Casey B., but stated that "if [he had hit the bicyclist], it was a fraction of a second before he hit the Cadillac." However, both paint and clothing fibers taken from Casey B. matched paint samples removed from the headlight and fibers removed from the lower left license plate of the Lincoln driven by Rodriguez. As a result, a complaint was filed to which Rodriguez pled no contest to hit and run causing death in violation of §§ 346.67(1) and 346.74(5)(d), STATS.
At sentencing, Rodriguez argued that restitution was inappropriate because there was no causal link between the offense committed, the death of Casey B. and the resulting damages. The trial court disagreed and sentenced him to eighteen months in the Wisconsin prison system. The trial court also found that "there is no doubt that [Rodriguez] hit [Casey B.], that his car came in contact. That he was a cause, not maybe the primary cause, but he certainly could be considered to be a cause of what's happened," and ordered restitution to the family. Rodriguez appeals the order for restitution.
On appeal, Rodriguez argues that his criminal actsfleeing the scene of a fatal accidentwere not the cause of Casey B.'s death or the cause of the expenses incurred by the family. He asserts that before restitution may be ordered, there must be a "showing that the defendant's criminal acts caused the victim's injuries for which he is seeking restitution" and no such showing was made here. Finally, even if the *626 restitution order stands, he claims there is no statutory basis for requiring him to pay for items awarded to Casey B.'s family.
[1, 2]
Rodriguez's arguments require us to construe § 973.20, STATS., and apply the statute to the facts of this case. The construction of a statute or statutes, or the application of the same to a particular set of facts, is a question of law which appellate courts decide without deference to the trial court's determination. See State v. Sostre, 198 Wis. 2d 409, 414, 542 N.W.2d 774, 776 (1996). In construing the statute, we first look to the language of the statute. If it is not ambiguous, then we are not permitted to use interpretation and construction techniques because the words of the statute must be given their obvious and ordinary meaning. See Town of Seymour v. City of Eau Claire, 112 Wis. 2d 313, 319, 332 N.W.2d 821, 823-24 (Ct. App. 1983).
We first consider Rodriguez's argument that his criminal acts were not the cause of the victim's death, and likewise were not the cause of the expenses incurred by the family. He maintains that the restitution award was unjustified because the State never established that the cause of the injuries for which restitution was awarded was specific to his criminal conduct, more precisely, fleeing the scene. We are unconvinced. Rodriguez bases his argument on a faulty premise that if the elements of the crime of which he was convicted were scrutinized, his only prohibited act was his actual flight from the scene of the fatal accident.
[3]
At sentencing, restitution may be ordered once a defendant has been convicted of any crime. Section *627 973.20, STATS. A crime is defined as "conduct which is prohibited by state law and punishable by fine or imprisonment or both." Section 939.12, STATS. (emphasis added). Under the restitution statute, the sentencing court takes a defendant's entire course of conduct into consideration. The restitution statute does not empower the court to break down the defendant's conduct into its constituent parts and ascertain whether one or more parts were a cause of the victim's damages.[2]
The crime Rodriguez was convicted of, upon his plea of no contest, has six elements:
(1) defendant operated a motor vehicle involved in an accident;
(2) the accident resulted in injury to any person or other vehicle;
(3) defendant knew that the vehicle he was operating was involved in an accident;
(4) defendant did not remain at the scene of the accident until he had
(a) given his name, address, and the registration number of the vehicle he was driving to the person struck or operator of or person attending any vehicle collided with; and
(b) rendered to any person injured in such accident reasonable assistance including the carrying of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is *628 apparent that such treatment is necessary or is requested by the injured person;
(5) defendant was physically capable of complying with the requirements;
(6) the accident involved the death of a person.
See WIS J ICRIMINAL 2670 (1994);[3]see also State v. Lloyd, 104 Wis. 2d 49, 59, 310 N.W.2d 617, 623 (Ct. App. 1981).
[4, 5]
Rodriguez pled no contest to the crime charged. A no contest plea constitutes an admission by the defendant of his or her past criminal conduct and consents to entry of a criminal judgment conviction without a trial. See County of Racine v. Smith, 122 Wis. 2d 431, 437, 362 N.W.2d 439, 442 (Ct. App. 1984). Thus, Rodriguez's plea is an admission that the totality of his criminal conduct, including fleeing the scene, resulted in Casey B's death and relieves the State of its burden to prove all of the elements of Rodriguez's criminal conduct beyond a reasonable doubt. See State v. Sartin, 200 Wis. 2d 47, 53, 546 N.W.2d 449, 451-52 (1996).
[6]
The crime of which Rodriguez stands convicted is not "leaving the scene of an accident," but hit and run in an accident resulting in death. Rodriguez pled no contest and in doing so admitted to all of the elements of the crime, not just to "leaving the scene of an accident." It is undisputed that this is but one element of the "crime" for which Rodriguez was convicted. Leaving the scene of an accident is just as much an *629 element of the offense as operating a vehicle involved in an accident, failing to give a name and address, or failing to render assistance. The fact that leaving the scene of the accident, in itself, may not "result" in death is really not relevant to whether restitution is permissible. The prohibited conduct consisted of operating a vehicle which was involved in an accident and then leaving the scene of the accident before performing specific statutory duties. Although one element on its own may not constitute a crime, when all of these elements are proven or admitted, then a crime has been committed and restitution may be ordered.
Turning to Rodriguez's final argument regarding the items awarded as restitution to the family, the State contends that he failed to contest these items before the trial court and he must therefore "raise his alternative argument by a motion in the trial court seeking modification of the restitution order." We disagree.
At sentencing, Casey B.'s father spoke and requested "roughly $10,000" for the expenses incurred due to the hit and run death of his son. The court replied, "Okay. Becausewhat you're asking for is certainly appropriate. What we need is an itemization." Casey B.'s father explained that they had "given receipts and everything" to the Victim Witness agency. The State offered to obtain that information for the court. Rodriguez then made his causation argument to the court. The court rejected this argument and ordered restitution to the family "in whatever sum is presented to the Court, and I will order that the determination and how it be paid be made by [Rodriguez's] parole officer." (Emphasis added.) The State fails to explain and we fail to understand, how *630 Rodriguez could appropriately contest a restitution order which has not yet been determined or argued.
[7]
Based upon our review of the record, we find only one substantive ruling by the trial court so far in this casethat a defendant is responsible for restitution when his or her criminal acts cause harm to the victim, even when the acts of others contributed to the victim's harm as well. We affirm this ruling.
However, the remaining issues raised on appeal have not been addressed by the trial court because the restitution process is not yet completed. While the trial court may have ordered restitution, it did not fix the amount or indicate which items were allowable and which were not. Why not? The answer is simple: these arguments were not made by either party, the court requested more information, the State promised to provide that information and the Department of Corrections had not determined restitution as of the sentencing hearing.
[8]
The restitution statutes direct the proper course in such a situation. Section 973.20(13)(c), STATS., requires the court to include an amount of restitution in the sentencing order if restitution is determined before sentencing and is stipulated to by the defendant or can be fairly heard at the sentencing proceeding. That, however, did not occur in this case. Rather, the question of restitution was deferred until the court received the additional information it needed.
[9]
This course of action is also permitted by the restitution statute. However, § 973.20(13)(c), STATS., requires a postsentence restitution hearing unless the defendant stipulates to the restitution. At that *631 hearing, the burden is on the person claiming restitution. Section 973.20(14)(a).[4] Accordingly, Casey B.'s family must prove they have standing to claim restitution and they must show that the items they claim are recognized by law. Rodriguez need only offer evidence concerning his ability to pay restitution. Section 973.20(14)(b). If restitution is ordered, then the restitution must be incorporated into the sentence or probation order. Section 973.20(13)(c).
[10]
We conclude that the issue of the actual amount of restitution was not before the trial court at sentencing. According to the record before this court, the details of the restitution order were reserved for another day. It is evident from the sentencing transcript that Rodriguez did not, nor could he, contest or stipulate to a restitution order which was still to be determined. The record contains nothing pertaining to the trial court's ultimate decision regarding restitution. When the court of appeals is not provided with the trial court's decision, it limits the scope of its appellate review to the record before it. Nielsen v. Waukesha County Bd. of Supervisors, 178 Wis. 2d 498, 523, 504 N.W.2d 621, 631 (Ct. App. 1993). Accordingly, we remand to the trial court and leave resolution of the issue of an award of restitution to another day.
By the Court.Judgment affirmed and cause remanded.
NOTES
[1] Section 973.20(1), STATS., has been amended and renumbered § 973.20(1r) by 1995-96 Wis. Act 141 § 2. The changes do not affect our analysis. All statutory references are to the 1993-94 statutes.
[2] "Elements of a crime" are defined by BLACK'S LAW DICTIONARY 520 (6th ed. 1990), as "[t]hose constituent parts of a crime which must be proved by the prosecution to sustain a conviction."
[3] WISCONSIN J I CRIMINAL 2670 was subsequently revised effective January 1996. We, however, refer to the elements as set forth in the 1994 instruction.
[4] Section 973.20(14)(a), STATS., has been amended by 1995-96 Wis. Act 142 § 11. The change does not affect our analysis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/738749/ | 110 F.3d 64
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Raymond JACKSON, Plaintiff-Appellant,v.KANTOLA, C/O; Ruo Isaacson; James Ruotsala, Defendants-Appellees.
No. 96-1317.
United States Court of Appeals, Sixth Circuit.
March 27, 1997.
Before: BROWN, BOGGS, and BATCHELDER, Circuit Judges.
ORDER
1
Raymond Jackson, a pro se Michigan prisoner, appeals a district court judgment dismissing his civil rights suit filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Seeking monetary relief, Jackson sued three state prison officials (Kantola, Isaacson and Ruotsala) in their individual and official capacities. Relying on the First, Eighth and Fourteenth Amendments, Jackson asserted that: 1) the defendants used excessive force against him; 2) he is incarcerated in violation of the Interstate Agreement on Detainers Act and Uniform Criminal Extradition Act; 3) he has been consistently and improperly reclassified to administrative segregation; 4) he has been subjected to assaults by the staff; 5) he has been exposed to chemical agents; 6) he has been served food tainted with urine, feces and saliva; 7) he has been singled out for mental harassment to enhance dysfunctional behavior; 8) he has been denied access to the courts; 9) the defendants retaliated against him for filing grievances by imposing a shower restriction, confiscating certain personal property, denying him access to the exercise yard, and denying him appropriate clothing for the exercise yard; and 10) he was not able to present witnesses at a misconduct hearing.
3
The magistrate judge recommended denying the defendants' motion for summary judgment as to the first claim and granting the motion as to the remaining claims. Both Jackson and the defendants filed timely objections. Upon de novo review, the district court granted summary judgment to the defendants on all claims. Jackson subsequently filed an unsuccessful motion to alter or amend the judgment.
4
In his timely appeal, Jackson reasserts his first claim, his ninth claim as it pertains to the denial of exercise and exercise clothing, and his tenth claim.
5
Initially, we note that while Jackson appeals the denial of his motion to alter or amend the judgment, this appeal is properly construed as brought from the underlying judgment. See Peabody Coal Co. v. Local Union Nos. 1734, 1508 and 1548, UMW, 484 F.2d 78, 81 (6th Cir.1973), cert. denied after subsequent appeal, 430 U.S. 940 (1977).
6
We also note that although the district court did not address all allegations in Jackson's ninth claim, the omission does not warrant vacating the district court's judgment and remanding for further consideration because relief was implicitly denied. See Ford Motor Co. v. Transport Indem. Co., 795 F.2d 538, 543 (6th Cir.1986). Furthermore, Jackson has not repeated the overlooked allegations, nor raised claims two through eight in his brief on appeal. Issues raised in the district court, but not on appeal, are considered abandoned and are not reviewable on appeal. Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991), cert. denied, 503 U.S. 939 (1992). Thus, we will only address Jackson's first claim, the allegations in his ninth claim concerning the denial of exercise and exercise clothing, and his tenth claim.
7
Upon review, we conclude that the district court's grant of summary judgment should be affirmed in part and vacated in part. Fed.R.Civ.P. 56(c); accord Harrow Prods., Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1019 (6th Cir.1995). The district court improperly granted summary judgment to the defendants on the first claim (excessive force) as there are genuine issues of material fact. Jackson and Kantola present markedly different accounts of an altercation that occurred when Kantola came to escort Jackson to the prison barbershop. The parties also disagree as to whether Kantola reentered Jackson's cell and attacked him following the initial altercation. Additionally, the defendants neither admit nor deny whether Jackson ever pleaded for help. Furthermore, there are differences as to the extent of Jackson's injuries.
8
Although the district court acknowledged that the parties presented different accounts of the altercation, the district court then erred by determining that Jackson's version of events was not plausible, particularly in light of Jackson's lack of serious injuries. In Adams v. Metiva, 31 F.3d 375, 379 (6th Cir.1994), a panel of this court stated that a "judge may not make credibility determinations or weigh the evidence." Thus, when a plaintiff presents direct evidence to support his case, his version must be accepted as true and the district court errs by granting summary judgment for the defendant where issues of credibility are determinative of the case. Id. More specifically, summary judgment is not proper where a prisoner's affidavit supports an Eighth Amendment claim and explicitly contradicts the defendant's version of the facts. Moore v. Holbrook, 2 F.3d 697, 701 (6th Cir.1993). In this case, Jackson presented direct evidence in the form of affidavits from himself and other prisoners, and thus, summary judgment was improper. Jackson's account, if proven true, would establish an Eighth Amendment violation for excessive force applied maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 7 (1992).
9
The district court properly granted summary judgment as to the remaining claims on appeal. Jackson's constitutional rights were not violated by the alleged denial of access to the exercise yard or by the alleged lack of exercise clothing as neither deprivation is "the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Sandin v. Conner, 115 S.Ct. 2293, 2301 (1995).
10
Likewise, Jackson's constitutional rights were not violated by any alleged violation of state policy concerning witnesses at his misconduct hearing following the altercation. "A state cannot be said to have a federal due process obligation to follow all of its procedures; such a system would result in the constitutionalizing of every state rule, and would not be administrable." Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.), cert. denied, 509 U.S. 907 (1993). Additionally, Jackson's allegations are too vague and conclusory to withstand a motion for summary judgment. See Cincinnati Bell Tel. Co. v. Allnet Comm. Servs., Inc., 17 F.3d 921, 923 (6th Cir.1994).
11
Accordingly, the district court's judgment is affirmed in part, vacated in part, and remanded to the district court for further proceedings in accordance with this order. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/899973/ | 556 N.W.2d 311 (1996)
1996 SD 127
STATE of South Dakota, Plaintiff and Appellee,
v.
Anthony John DARBY, Defendant and Appellant.
No. 19317.
Supreme Court of South Dakota.
Considered on Briefs September 12, 1996.
Decided October 30, 1996.
*313 Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, for plaintiff and appellee.
Jeff Larson, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.
GILBERTSON, Justice.
[¶ 1] Anthony John Darby was found guilty of three counts of first degree rape and sentenced on each count to 100 years imprisonment with forty years suspended. The sentences are to run concurrently. Darby appeals the judgment and sentences. We affirm.
FACTS AND PROCEDURE
[¶ 2] Following a "good touch/bad touch" presentation by a Sioux Falls police officer at her school, eight-year old A.W. told her teacher she had been sexually abused by her step-father, Darby. It was also learned that A.W.'s ten-year old sister, A.L., had been sexually abused by him. The matter was referred to law enforcement wherein Detective Bailey and Lieutenant Folkerts of the Sioux Falls Police Department contacted Darby at his residence. Darby had undergone knee surgery the previous day and was using a crutch when he opened the door to the two officers. Although the officers were in plain clothes, they identified themselves to him and showed him their badges. Detective Bailey informed Darby his stepdaughters had made allegations of a sexual nature against him. The detective further informed Darby that he was not under arrest nor would he be placed under arrest that day. Darby admitted that sexual activity between himself and the two girls had occurred over the past year with the last incident occurring three days earlier. Mrs. Darby arrived home about that time and the officers asked him if he would be willing to go to the Public Safety Building and speak with them further. Darby indicated he had no vehicle available to him and, because of his knee surgery, didn't feel he was capable of driving anyway. He agreed to accept a ride from the officers and accompanied them to the police station for further questioning.
[¶ 3] At the police station, Darby was told that he was not under arrest, would not be arrested that day and that he was free to leave. He and officer Bailey entered an interrogation room where, in the next hour and a half, he confessed in a videotaped interview to between eight to ten incidents of sexual activity with his stepdaughters over *314 the past year. These incidents all took place in the residence and involved each girl alone with Darby or both girls together with him, and included sexual touching, masturbation, cunnilingus, and fellatio. He related he encouraged the girls to touch one another on several occasions, and on one occasion, masturbated while watching them. These incidents also included penile, digital, and battery-powered vibrator penetration of the girls. During the course of this interview, the police learned that Mrs. Darby, mother of A.W. and A.L., had prior knowledge of the sexual acts being perpetrated against her daughters by her husband. Following this interview, the police drove Darby home.
[¶ 4] The next day, Darby was arrested for sexual abuse of his step-daughters. A grand jury indicted him with three counts of first degree rape, one count of third degree rape, and three counts of sexual contact with a child. Darby pled not guilty to all counts. At a January 8, 1995 motions hearing, he withdrew his not guilty plea and entered a plea of guilty on Counts 4, 5, and 7. The trial judge granted Darby's motion to dismiss Count 6 on the grounds that his plea of guilty to Count 7 barred prosecution on Count 6 due to protection against double jeopardy. Darby was ordered to stand trial on the remaining three counts of first degree rape of A.W. Following a three-day jury trial, he was found guilty on all three counts. The trial judge sentenced him to serve 100 years with 40 years suspended on each count, sentences to be served concurrently. Darby was also sentenced to serve 15 years each on Counts 4, 5, and 7, to be served consecutively to one another but concurrently with the 60-year sentences.
[¶ 5] Darby appeals the final judgment and sentencing in this case, raising the following issues:
1. Whether the trial court erred in denying Darby's motion to make definite and certain or to dismiss?
2. Whether Darby's guilty plea to Count 4 (sexual contact) barred the State from prosecuting the first-degree rape counts?
3. Whether Darby's confession should have been suppressed as involuntarily given and given while in custody?
4. Whether the trial court erred in denying Darby's requests for excusing certain jurors for cause and/or additional peremptory challenges?
ANALYSIS AND DECISION
[¶ 6] 1. Whether the trial court erred in denying Darby's motion to make definite and certain or to dismiss?
[¶ 7] Darby motioned the trial court to order the State to make the allegations against him more specific as to the dates of the alleged violations, or to dismiss the charges on grounds of his right to protection against double jeopardy. As noted above, following acceptance by the trial court of Darby's plea of guilty to Counts 4, 5, and 7, the trial court dismissed Count 6 on the basis of double jeopardy. The trial court denied the motion as to Counts 1 through 3 and ordered him to stand trial. Darby appeals the trial court's ruling on Counts 1 through 3. Because an examination of the counts under which he was indicted is necessary to this appeal, they are set forth in pertinent part below:
COUNT 1
That on or between December 1, 1993 to December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY then and there did commit the crime of Rape in the First Degree by accomplishing an act of sexual penetration with [A.W.], when said victim was less than ten years of age, namely, of the age of 8, which conduct on the part of the Defendant was in violation of SDCL 22-22-1(1), contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
The language in Counts 2 and 3 is identical to that of Count 1.
*315 COUNT 4
That on or between December 1, 1993 to December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY then and there did while being over the age of sixteen years and more than three years older than the victim, knowingly engage in sexual contact with another person, to wit: [A.W.], who was not the Defendant's spouse and who was under the age of sixteen years, in violation of SDCL 22-22-7, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
COUNT 5
That on or between February 12, 1994 to December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY then and there did commit the crime of Rape in the Third Degree by accomplishing an act of sexual penetration with [A.L.], where the victim was more than ten years of age but less than sixteen years of age, and where the Defendant was at least three years older than the victim, which conduct on the part of the Defendant was in violation of SDCL 22-22-1(5), contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
COUNT 6
That on or between December 1, 1993 and December 4, 1994 in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY did while being over the age of sixteen years and more than three years older than the victim, knowingly engage in sexual contact with another person, to-wit: [A.L.], who was not the Defendant's spouse and who was under the age of sixteen years, in violation of SDCL 22-22-7, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
COUNT 7
That on or about December 4, 1994, in the County of Minnehaha, State of South Dakota, ANTHONY JOHN DARBY did while being over the age of sixteen years and more than three years older than the victim, knowingly engage in sexual contact with another person, to wit: [A.L.], who was not the Defendant's spouse and who was under the age of sixteen years, in violation of SDCL 22-22-7, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.
[¶ 8] "An indictment is sufficient if it `contains the elements of the offense charged such that it apprises the defendant with reasonable certainty of the accusations against him, and it must enable him to plead an acquittal of conviction as a bar to future prosecutions for the same offense.'" State v. Floody, 481 N.W.2d 242, 246 (S.D.1992); State v. Basker, 468 N.W.2d 413, 416 (S.D.1991); Accord State v. Wurtz, 436 N.W.2d 839, 843 (S.D.1989); State v. Logue, 372 N.W.2d 151, 155 (S.D.1985); State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984).[1]
[¶ 9] At the outset, we note that the allegations in this case came to light because the victim under these three counts, A.W., told her teacher on December 7, 1994 that she had been sexually abused by Darby. He was interviewed by police officers that same *316 afternoon. At that time, he admitted the abuse to the officers indicating it had occurred over the past year, with at least eight to ten incidents, including two with A.W.'s sister, A.L. He further stated the last incident had occurred three days earlier. Thus, the dates set forth in Counts 1 through 3 of the indictment, December 1, 1993 to December 4, 1994, were provided to the State by Darby himself.
[¶ 10] SDCL 23A-6-9 supports the sufficiency of the information provided in Darby's indictment. This statute provides: "The precise time at which an offense was committed need not be stated in an indictment or information, but it may be alleged to have been committed at any time before the filing thereof, except when the time is a material element of the offense." The offenses in the present case are three counts of first-degree rape of a minor. We have previously held in cases of sexual abuse of minors that time is not a material element of the offense. Floody, 481 N.W.2d at 247; Basker, 468 N.W.2d at 416; Wurtz, 436 N.W.2d at 842; Swallow, 350 N.W.2d at 608. Our rationale for this holding was adopted from the Minnesota Supreme Court:
[A]lthough an information should be as specific as possible with respect to time, it is not always possible to know with certainty when the offenses occurred; this is especially true in cases where there is a minor victim who does not immediately complain to the authorities; thus, specificity of time is not always required in the information.
Id. (citing State v. Bird, 292 N.W.2d 3 (Minn.1980); State v. Waukazo, 269 N.W.2d 373 (Minn.1978)). In Wurtz, we held "lack of specificity as to time is no grounds for reversal." 436 N.W.2d at 842 (citing Swallow, 350 N.W.2d at 608).
[¶ 11] Secondly, we note Darby at no time requested a bill of particulars. This Court has recently stated, when addressing a claim of insufficiency of an indictment, that a defendant who feels he needs a more detailed notice in the indictment to enter an informed plea and effectively defend against the charges should ask for a bill of particulars. State v. Anderson, 1996 SD 46, ¶ 16, n. 8, 546 N.W.2d 395, 400, n. 8. See also Wurtz, 436 N.W.2d at 842; State v. Miller, 429 N.W.2d 26, 40 (S.D.1988). In a case Darby cites in support of his argument, the defendant therein filed for a bill of particulars to which the State responded with additional details of the alleged incidents of rape. Floody, 481 N.W.2d at 246.
[¶ 12] Finally, we note that at the motions hearing, more than two months before trial, the State provided Darby with further detail as to the separate incidents when it advised him of the three means in which he committed the crimespenile penetration, digital penetration, and penetration by an object. All of this information was presented to the grand jury as well as to the trial jury.
[¶ 13] We reject Darby's argument that the counts should have been more clearly identified in the indictment as three separate incidents.[2] All that is required is that he be apprised with reasonable certainty of the accusations against him, such that he is able "to plead an acquittal of conviction as a bar to future prosecutions for the same offense." Floody, 481 N.W.2d at 246. As to Darby's double jeopardy concerns, he is reminded that he need not rely on the indictment alone to protect him from future prosecutions, but "may allege and prove facts outside of the record in support of his plea of former adjudication." Wurtz, 436 N.W.2d at 843 (citing State v. McGee, 221 Neb. 557, 378 N.W.2d 674, 677 (1985)). We conclude the indictment sufficiently apprised him as to the period of time in which the rapes took place and that he was totally aware of the nature of the charges against him. It was information provided by Darby upon which the indictment was based; he cannot now claim he was not "apprise[d] ... with reasonable certainty of the accusations against him."
*317 [¶ 14] 2. Whether Darby's guilty plea to Count 4 (sexual contact) barred the State from prosecuting the first-degree rape counts?
[¶ 15] The Fifth Amendment to the United States Constitution, as made applicable to the States by the Fourteenth Amendment, and Article VI, § 9 of the South Dakota Constitution, provide that no person shall be put into jeopardy twice for the same offense. Darby argues that the sexual contact to which he pled guilty in Count 4 provides the factual basis for the first degree rapes for which he was convicted in Counts 1 through 3. He claims that when the trial court accepted his plea of guilty to Count 4, he was put into double jeopardy in violation of his constitutional rights.
[¶ 16] We have adopted the Blockburger test in examining a claim of double jeopardy:
The `same offense' test as enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) is the test adopted in South Dakota in determining whether the threat of double jeopardy exists. State v. Pickering, 88 S.D. 548, 225 N.W.2d 98 (1975).... Blockburger reasoned that while a single act may be an offense against two statutes, two offenses may be said to have occurred only if each statute requires proof of an additional fact which the other does not.
State v. Hoffman, 430 N.W.2d 910, 911 (S.D.1988) (citing Blockburger, 284 U.S. at 304, 52 S.Ct. at 183, 76 L.Ed. at 309). The Blockburger test was recently examined and reaffirmed by the United States Supreme Court in United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556, 572-73 (1993).
[¶ 17] In Counts 1 through 3, Darby was charged with first-degree rape under SDCL 22-22-1(1). That statute provides: "Rape is an act of sexual penetration accomplished with any person under any of the following circumstances: (1) If the victim is less than ten years of age; ..." "Sexual penetration" is defined in SDCL 22-22-2 as provided, in pertinent part:
Sexual penetration means an act, however slight, of sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the body or of any object into the genital and anal openings of another person's body. All of the foregoing acts of sexual penetration, except sexual intercourse, are also defined as sodomy....
In Count 4, he was charged with sexual contact with a child under sixteen under SDCL 22-22-7.[3] That statute provides:
Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person's spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony. If the actor is less than three years older than the other person, the actor is guilty of a Class 1 misdemeanor. Notwithstanding § 23A-42-2, a charge brought pursuant to this section may be commenced at any time before the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.
SDCL 22-22-7.1 defines "sexual contact," within the context of these statutes, as provided, in pertinent part:
As used in this chapter, the term, `sexual contact,' means any touching, not amounting to rape, of the breasts of a female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party....
[¶ 18] Darby argues that one cannot commit an act of sexual penetration, i.e. rape, without also committing an act of sexual contact, stating that "one cannot penetrate something without touching it." On its face, this argument seems logically sound. However, this argument ignores the definition of "sexual contact" as set forth by the legislature in SDCL 22-22-7.1. Further, this Court held in Brammer that "the legislature did not intend the sexual contact statute to apply to touching incidental to rape; the two crimes are mutually exclusive, therefore, sexual contact is not a lesser included offense of rape." King v. Solem, 383 N.W.2d 852, 853 (S.D.1986) (discussing and citing State v. Brammer, 304 N.W.2d 111, 114 (S.D.1981)). In Brammer, this Court reversed a conviction *318 of sexual contact while upholding a conviction of rape, demonstrating that, as those two offenses are defined by our statutes, there can be factual situations in which the offense of rape is committed without the offense of sexual contact having been committed. 304 N.W.2d at 114.
[¶ 19] Plainly put, "sexual contact" requires proof of a specific intent to "arouse or gratify the sexual desire of either party." "Sexual penetration" requires proof of vaginal or anal intercourse, cunnilingus, fellatio, "or any intrusion, however slight, of any part of the body or of any object into the genital and anal openings of another person's body." Each statute requires proof of an additional fact the other does not.
[¶ 20] We find the Blockburger test to be met and no violation of Darby's constitutional rights against double jeopardy to have occurred in this case. He committed acts of rape and acts of sexual contact against the person of A.W. He pled guilty to the act of sexual contact with which he was charged. The trial court found a factual basis for his having committed the sexual contact and accepted the plea. That he admitted an element of penetration occurred during this same time period, thereby admitting more facts than were necessary to establish sexual contact had occurred, does not negate the plea to Count 4 nor does it bar prosecution on Counts 1 through 3. He argued at the motions hearing that "there is nothing in Count 4 that excludes a rape." This statement is incorrect. The statutory definition of "sexual contact" specifically excludes rape. SDCL 22-22-7 is cited in Count 4; SDCL 22-22-7.1 defines "sexual contact" as used in SDCL Ch. 22-22. At trial, the jury found a factual basis existed for Darby's having committed three separate acts of rape in the first degree and rendered a guilty verdict on each of the three counts.
[¶ 21] 3. Whether Darby's confession should have been suppressed as involuntarily given and given while in custody?
[¶ 22] A. Whether the interrogations were custodial?
[¶ 23] Darby was not given Miranda warnings when Officers Bailey and Folkerts spoke with him at his residence on the afternoon of December 7, 1994, nor when the interview was continued some minutes later at the police station. The two officers arrived at his residence in an unmarked car and wearing plain clothes. They immediately identified themselves to Darby and showed him their badges. They informed him that his step-daughters had alleged he had sexually abused them. He admitted to the officers the allegations were true. Although he had undergone knee surgery one day earlier, the officers indicated he did not appear to be in pain or stress, did not take any medications while the officers were present, and did not appear to be under the influence of alcohol or drugs. The conversation between Darby and the officers at his residence lasted approximately ten minutes at which time Mrs. Darby arrived home. The officers asked him if he would like to continue the conversation at the police station and he agreed to do so, accepting a ride from the officers.
[¶ 24] Darby was informed prior to the interview that it would be videotaped, that the door to the room would be closed for privacy, but would remain unlocked and that he was free to leave at any time. He was advised that he was not under arrest and would not be arrested that evening. The interview at the police station lasted approximately one and one-half hours, during which he was permitted to smoke, and was provided with coffee and a chair on which to rest his leg. Only Darby and Officer Bailey were present in the room. Officer Bailey's tone was conversational and he did not raise his voice at any time during the interview. In the one and one-half hours, there were three breaks, each lasting approximately ten minutes, during which Officer Bailey left the room. During the interview, he did not request an attorney, medication, food, or drink, or to use the restroom. Following the interview, the officers provided him with a ride back to his home.
[¶ 25] The United States Supreme Court has held that:
Any interview of one suspected of a crime by a police officer will have coercive aspects *319 to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warning to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him `in custody.'
Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977). This Court has cited the Mathiason standard with approval. See State v. Jenner, 451 N.W.2d 710, 719 (S.D.1990); State v. Perkins, 444 N.W.2d 34, 38 (S.D.1989); State v. McQuillen, 345 N.W.2d 867, 869 (S.D.1984); State v. Branch, 298 N.W.2d 173 (S.D.1980). The Supreme Court reaffirmed the Mathiason standard in California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). Thus, "[t]he proper test in determining whether a person need be given the Miranda warning is not whether the investigation has focused on any particular suspect, but rather, whether the person being questioned is in custody or deprived of his or her freedom to leave." State v. Bruske, 288 N.W.2d 319, 322 (S.D.1980) (citing Mathiason).
[¶ 26] Here, the investigation was certainly focused on a particular suspect based on A.W.'s allegations and identification of Darby as her suspected abuser. However, during both the questioning at his home and the videotaped interview at the police station, he was informed by Officer Bailey that he was not under arrest and would not be arrested that day, and that he was free to leave. When asked to continue the questioning at the police station, he voluntarily agreed to do so. At that time he was offered the option of driving his own vehicle, taking a taxicab or riding with the police officers. See McQuillen, 345 N.W.2d at 870. Darby chose to accept a ride from the police officers. The door to the room in which Officer Bailey interviewed him was unlocked, of which he was aware, but was closed for privacy. We have previously held that a closed, or even a locked, door does not, in and of itself, create a custodial interrogation. Id. No restraints were placed on Darby, and he was free to move about the room and free to leave. We reject the claim that because he was on crutches he was not free to leave. We do not find error in the trial court's conclusion that Darby was not in custody at the time of the interviews at his home and at the police station. His assertion that the trial court did not make this conclusion according to the "reasonable doubt standard" is without merit.
[¶ 27] B. Whether the statements were voluntarily made?
[¶ 28] Darby also challenges the trial court's finding of voluntariness of his confession. In State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990) we stated that in making a determination regarding the voluntariness of a confession, the trial court must consider the effect the totality of the circumstances had upon the will of the defendant and that the question in each case is whether the defendant's will was overborne. Therein, we cited the factors to be considered as including: 1) the defendant's youth; 2) the defendant's lack of education or low intelligence; 3) the absence of any advice to the defendant of his constitutional rights; 4) the length of detention; 5) the repeated and prolonged nature of questioning; and 6) the use of physical punishment such as the deprivation of food or sleep. Id. In reviewing the trial court's findings on voluntariness, we consider the evidence in the light most favorable to the finding. State v. Oltmanns, 519 N.W.2d 602, 605 (S.D.1994).
[¶ 29] Applying the above factors to the present case, we note that Darby was 32 years of age at the time of the questioning and did not demonstrate a lack of education or low intelligence. No custodial interrogation took place so there was no advice regarding Darby's constitutional rights. The length of detention was one and one-half hours at the police station and approximately ten minutes prior to that time at his home. *320 There is no evidence of repeated or prolonged questioning and no evidence that he was deprived of food or sleep. Both interviews took place in the early evening and, as noted above, he drank coffee and smoked during the interview. He did not appear to be under the influence of medication, alcohol or drugs and his knee injury did not appear to exert any influence on his statements.
[¶ 30] A defendant's prior experience with law enforcement officers and the courts may also be a factor for the court's consideration. State v. Caffrey, 332 N.W.2d 269, 272 (S.D.1983). In the present case, the totality of the circumstances the trial court examined in making its determination included Darby's having had recent experience with law enforcement and the court system as the defendant in a jury trial on a felony D.U.I. charge in June 1994. This is a scant six months before the officers knocked on his door to question him about the sexual abuse of his step-daughters.
[¶ 31] Deception or misrepresentation by the officer receiving the statement may also be factors for the trial court to consider, however, the police may use some psychological tactics in interrogating a suspect. Jenner, 451 N.W.2d at 719. Though police ploys may be invoked to obtain a confession, the confession must be voluntary, that is, "a product of the suspect's own balancing of competing considerations." Dickey, 459 N.W.2d at 447. In the present case, as was the case in Dickey, the interrogating officer made statements to Darby about his needing counseling and that counseling was important to building a healthy father-daughter relationship. We have reviewed the videotaped interview and find these comments to be minimal, especially when viewed in the totality of the circumstances. We further find they did not have such an effect on Darby's own free will as to be coercive or manipulative such that he was not able "to make an unconstrained, autonomous decision to confess." Id. at 448. Darby's claim on appeal that Officer Bailey's comments led him to understand he would receive counseling in lieu of imprisonment, if believed, requires an extreme exaggeration of what was actually stated and the context therein, and belies a knowledge of the law which every citizen is presumed to have. Porter v. Porter, 1996 SD 6, ¶ 14, 542 N.W.2d 448, 450; Sioux Falls School Dist. v. S.D. Subsequent Injury Fund, 504 N.W.2d 107, 109 (S.D.1993). We do not find the trial court's determination that Darby's confession was voluntary to be clearly erroneous.
[¶ 32] 4. Whether the trial court erred in denying Darby's requests for excusing certain jurors for cause and/or additional peremptory challenges?
[¶ 33] Darby used all twenty of his peremptory challenges at trial and requested additional peremptory challenges pursuant to SDCL 23A-20-21, which the trial court denied. He appeals the trial court's denial of additional challenges as well as the trial court's denial of his challenges for cause of four jurors on grounds of actual bias under SDCL 23A-20-10(3). These four jurors were Jurors Richert, Oyen, Meirose, and Whitney. Because the trial court denied the challenges for cause of these four jurors, they were removed from the jury panel through use of Darby's peremptory challenges.
[¶ 34] One of the primary responsibilities of a trial court is to make certain that a fair and impartial jury has been selected for the defendant's trial. State v. Etzkorn, 1996 SD 99, ¶ 8, 552 N.W.2d 824, 828; State v. Muetze, 368 N.W.2d 575, 585 (S.D.1985). The mere expression of a predetermined opinion regarding guilt during voir dire does not disqualify a juror per se. State v. Hansen, 407 N.W.2d 217, 220 (S.D.1987); Muetze, 368 N.W.2d at 585. A potential juror should be excused for cause if that juror is unable to set aside preconceptions and render an impartial verdict. Hansen, 407 N.W.2d at 220; Muetze, 368 N.W.2d at 585. Determination of a juror's qualifications must be based upon the whole voir dire examination; "single isolated responses are not determinative." Hansen, 407 N.W.2d at 220; State v. Flack, 77 S.D. 176, 180, 89 N.W.2d 30, 32 (1958).
[¶ 35] SDCL 23A-20-12(2) provides the statutory basis for challenging a juror for *321 actual bias. The statute provides, in pertinent part:
A specific challenge for cause is that a juror is disqualified from serving in the case of trial because of:
....
(2) Actual bias.
Actual bias is the existence of a state of mind on the part of a juror, in reference to the case or to either party, which satisfies the court, in the exercise of sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.
In a challenge for actual bias, cause must be alleged....
[¶ 36] A trial judge is vested with broad discretion in determining juror qualifications. Hansen, 407 N.W.2d at 220. Before we will reverse a trial court's refusal to disallow for cause potential jurors, the movant must show actual prejudice resulting from the trial court's decision. State v. Blue Thunder, 466 N.W.2d 613, 620 (S.D.1991). "Reversible error exists only where defendant can demonstrate material prejudice." Id.
[¶ 37] An examination of the voir dire of the four jurors and Darby's objections is necessary to our review of this issue:
[¶ 38] Richert explained at voir dire that she had three daughters and because of this fact, this would be one of the tougher cases for her to sit on. However, in response to the next question from Darby's attorney, Ms. Richert admitted she would have no trouble in presuming his innocence and informed the trial court that she could decide the case based on the facts as she heard them and the law as she was instructed.
[¶ 39] Oyen explained that at a prior time a man who lived with Oyen's brother, in another part of the state, had sexually molested Oyen's niece and that the man was convicted and had served time in the state penitentiary for this crime. Oyen stated he had very strong opinions on child molestation and that he has worked with children the same age as the victim in the present case for almost twenty years. He also stated he believed if convicted, child molesters should be jailed and the key thrown away. When questioned more closely as to his feelings about his niece's experience and the trial in that case, Oyen admitted he "stayed very neutral," did not attend the trial and did not know the particulars of the case. He assured the trial court herein that he could put aside his personal feelings and judge this case on the facts and the law presented to him. Further, the trial court instructed Oyen that punishment of convicted persons was the court's responsibility. When asked by the trial court if Oyen had a problem with that, Oyen responded he did not. He also offered that he had seen something in the news media about Darby, but could not remember it, nor could he remember if the report involved this case or some unrelated event.
[¶ 40] Meirose had family members and friends who worked at the state penitentiary and she worked at a juvenile detention center. She also related that about ten years ago, a female adult neighbor was raped and that a neighbor child was the victim of an indecent exposure. Darby's attorney asked that Meirose be removed for cause due to her educational background in sociology and psychology and her employment at the juvenile center. The trial court denied the request, stating that jurors are permitted to bring their common knowledge into the jury room. Meirose had earlier been informed by Darby's attorney she could not bring her expertise into the jury room.
[¶ 41] Whitney, a sports editor for a Sioux Falls newspaper, the Argus Leader, recalled reading a story in the paper about Darby and the accusations against him. When asked, he stated it would not be difficult for him to isolate himself in the newsroom from the reporter the newspaper would assign to cover the trial. Darby's attorney asked that Whitney be excused because he recalled more from reading the newspaper story than the other potential jurors did, including some information that had been excluded from the trial. Whitney had earlier stated that he could block out of his mind any information not obtained during the trial and *322 decide the case on the evidence presented at trial.
[¶ 42] Apart from the statements outlined above, all four jurors indicated that they could presume the defendant innocent until proven guilty and that they could put their personal beliefs aside and judge the case solely on the facts presented to them at trial and the instructions from the trial court on the law of the case. As indicated above, Darby used peremptory challenges to remove these jurors from the jury panel.
[¶ 43] Though no specific test exists to determine if a potential juror is impartial, the voir dire must show the jurors understand that: 1) the State must prove guilt beyond a reasonable doubt; 2) the defendant is presumed innocent until proven guilty; and 3) a determination of the defendant's guilt must be based solely on the evidence and testimony introduced at trial. Etzkorn, 1996 SD 99, ¶¶ 8-9, 552 N.W.2d at 828 (quoting Hansen, 407 N.W.2d at 220). Our review of the voir dire of the four challenged jurors shows no abuse of discretion in the trial court's refusing to excuse them for cause. Moreover, while this Court found in Etzkorn, 1996 SD 99, ¶¶ 14-17, 552 N.W.2d at 829, that the defendant established prejudice, Darby has failed to show the twelve jurors who actually heard the evidence and convicted him based upon that evidence were not impartial.
[¶ 44] We affirm. We further note that although Darby states in his brief that he is appealing from both the judgment and sentences, he had not briefed an argument based on his sentences. Failure to argue an issue after it has been raised on appeal waives the issue. SDCL 23A-32-14; SDCL 15-26A-60(6); Corbly v. Matheson, 335 N.W.2d 347, 348 (S.D.1983).
[¶ 45] MILLER, C.J., and AMUNDSON and KONENKAMP, JJ., concur.
[¶ 46] SABERS, J., dissents.
SABERS, Justice, dissenting.
Darby's confession should have been suppressed as involuntarily given in custody and without Miranda warnings.
[¶ 47] This case is strong evidence that history repeats itself. Law enforcement officers throughout this state continue to interrogate suspects in accusatorial, rather than investigative settings, without giving the suspect Miranda warnings. As I stated in State v. Dickey, 459 N.W.2d 445, 451 (S.D.1990) (Sabers, J., concurring specially):
I write specially to point out that almost all of the time, trouble, and effort expended in this appeal could have been avoided if law enforcement officers followed the simple admonition of Justice Morgan in Satter v. Solem, 434 N.W.2d 725, 727 (S.D.1989), (Satter II):
After all, it requires no great effort to take out the Miranda card, read the subject his rights, and ask the simple questions: Do you understand your rights and do you waive them?
[¶ 48] The majority beats itself about the head with rationalizations of investigatory or accusatory custody or noncustodial conversational or nonconversational deception or misrepresentation coercive or manipulative voluntary or involuntary.
[¶ 49] The fact of the matter is that there was only one suspect, and that was Darby. If he did not do it, no one did. If Darby did not sexually abuse these children, no one did and no crime would even have been committed. Therefore, there was only one suspect and he was in custody for interrogation without Miranda warnings. See State v. Kaiser, 504 N.W.2d 96, 103 (S.D.1993) (Sabers, J., concurring in part and concurring specially in part) (arguing Miranda warnings should have been administered when sole suspect was transported to station for questioning).
[¶ 50] Law enforcement officers know better. They and the justice system were burned in State v. Oltmanns, 519 N.W.2d 602 (S.D.1994), and if they maintain their present practice, they will be burned again.
[¶ 51] In Oltmanns, the law enforcement officers did almost everything necessary to obtain a conviction except step one. They got Oltmanns in the police station for interviews, fingerprinting, and a polygraph examination. They omitted one step, they failed to give Oltmanns his Miranda warnings. For *323 that and other reasons, the trial court necessarily suppressed Oltmanns' statements as involuntary. We affirmed on appeal and law enforcement, through its own doing, dropped the case and were appropriately publicly embarrassed.
[¶ 52] Maybe law enforcement feels more good than bad comes from failing to give Miranda warnings. Maybe they will persist in their present practice. If so, it won't be long before the results necessarily required in Oltmanns will revisit them.
[¶ 53] I would reverse and remand for the trial court to instruct the officers to provide solo suspects the Miranda warnings required by the United States and South Dakota Constitutions.
NOTES
[1] SDCL 23A-6-7 provides the requirements for sufficiency of an indictment or information. The statute provides:
An indictment or information is sufficient if it can be understood therefrom:
(1) That it is entitled in a court having authority to receive it, although the name of the court is not stated;
(2) That the indictment was found by a grand jury of the county in which the public offense was committed;
(3) That the defendant is named or, if his name is unknown, that he is described by a fictitious name with a statement that his true name is unknown to the grand jury or prosecuting attorney;
(4) That the offense charged was committed within the jurisdiction of the county; and
(5) That the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.
[2] Although he is not claiming insufficiency of the evidence, we note that part of his complaint under this issue appears to be that nothing in the language of these three counts identifies them as three separate incidents and, as such, the jury could have convicted him of all three counts upon the evidence of only one rape. We have reviewed the evidence in this case and find it sufficient to support the jury's conviction on each of the three counts.
[3] This charge was the result of an incident separate and independent from the three charges of first-degree rape described in Counts 1 through 3. | 01-03-2023 | 06-12-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264464/ | 14 Cal.App.4th 1379 (1993)
18 Cal. Rptr.2d 676
THE PEOPLE, Plaintiff and Respondent,
v.
TROY EARL SEALS, Defendant and Appellant.
Docket No. B065035.
Court of Appeals of California, Second District, Division Five.
April 12, 1993.
*1380 COUNSEL
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, Pat Zaharopoulos, Garrett Beaumont, John R. Gorey and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
GRIGNON, Acting P.J.
Defendant and appellant Troy Earl Seals appeals from a judgment after a jury trial in which he was convicted of robbery with the use of a firearm and evading an officer, and a court trial in which it was found he had suffered a prior serious felony conviction and two prior prison terms for felony convictions. He contends the trial court erred in sentencing him to the upper terms for the robbery and the firearm use enhancement. He contends further the evidence is insufficient to support a true finding as to one of the prior prison term allegations. In the unpublished portion of this opinion, we conclude the trial court did not err prejudicially in selecting the upper terms. In the published portion of this opinion, we reverse the true finding as to one of the prior prison term allegations, because we conclude that a direct commitment of a youthful offender to the California Youth Authority (CYA) pursuant to Welfare and Institutions Code section 1731.5, subdivision (a) does not constitute a prior prison term within the meaning of *1381 Penal Code section 667.5, subdivision (b). We affirm in part and reverse in part.
PROCEDURAL BACKGROUND
Defendant was charged by information with robbery in violation of Penal Code section 211. It was further alleged that defendant personally used a firearm in the commission of the robbery within the meaning of Penal Code section 12022.5. Defendant was also charged with evading an officer in violation of Vehicle Code section 2800.2. It was further alleged that defendant had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a) and two prior prison terms for felony convictions within the meaning of Penal Code section 667.5, subdivision (b).
The jury convicted defendant of robbery and evading an officer and found the firearm use allegation to be true. The trial court found the prior felony conviction allegations to be true. Defendant was sentenced to 17 years and 8 months in state prison. The trial court imposed the upper term for the robbery (5 years), a consecutive upper term for the firearm use enhancement (5 years), a consecutive one-third the middle term for evading an officer (8 months), a consecutive 5 years for the prior serious felony conviction enhancement, and two consecutive one-year terms for the prior prison term enhancements. Defendant appeals.
FACTS[*]
.... .... .... .... .... .... .... .
DISCUSSION
I.-II.[*]
.... .... .... .... .... .... .... .
III. Prior Prison Term
In November 1984, defendant was charged in case number A759293[1] with robbery and burglary. On November 30, 1984, defendant pled guilty to grand theft person as a lesser included offense of robbery; the burglary *1382 charge was dismissed. On December 28, 1984, defendant was placed on probation. On March 29, 1985, defendant was found to be in violation of probation. On June 21, 1985, probation was revoked and, pursuant to Welfare and Institutions Code section 1731.5, subdivision (a), defendant was committed to the CYA for the low term of 16 months.
In the instant case, it was alleged defendant had suffered in 1984 a prior felony conviction of grand theft person in case number A759293, for which he had served in 1985 a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court found this prior prison term allegation to be true and sentenced defendant to a consecutive one-year term for this enhancement.
Pursuant to Penal Code section 667.5, subdivision (b), when a defendant is convicted of a felony and sentenced to state prison, the defendant is subject to an additional consecutive one-year enhancement "for each prior separate prison term served for any felony." In People v. Redman (1981) 125 Cal. App.3d 317 [178 Cal. Rptr. 49], this district concluded that a commitment to the CYA did not constitute a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). "We therefore hold that a commitment to the CYA and the completion of a period of commitment in a CYA facility do not constitute the serving of a prison term within the meaning of Penal Code section 667.5." (125 Cal. App.3d at p. 323.)
Two years later, in 1983, the Legislature amended Penal Code section 667.5 by adding subdivision (j) to provide: "For the purposes of this section, when a person subject to the custody, control, and discipline of the Director of Corrections is incarcerated at a facility operated by the [CYA], that incarceration shall be deemed to be a term served in state prison." (Stats. 1983, ch. 229, § 1, p. 707.)
Welfare and Institutions Code section 1731.5, subdivision (a) provides that a trial court may order a youthful adult offender to be directly committed to the CYA in lieu of a state prison sentence. Welfare and Institutions Code section 1731.5, subdivision (c) provides alternatively that a trial court may sentence a youthful adult offender to state prison, but order the offender to be transferred by the Department of Corrections to the CYA to serve his state prison sentence.[2]
(1) In this case, we must determine whether a direct commitment to the CYA pursuant to Welfare and Institutions Code section 1731.5, subdivision *1383 (a) constitutes a prior prison term within the meaning of Penal Code section 667.5, subdivisions (a) and (j). Citing People v. Redman, supra, 125 Cal. App.3d at page 322 overruled on other grounds in People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 760, footnote 5, defendant contends the record does not support a finding that he served a prior prison term for his 1984 conviction of grand theft person. Initially, the prosecution contended Redman had been overruled by the Legislature when it amended Penal Code section 667.5 in 1983 by adding subdivision (j). However, after a review of the superior court file and the legislative history of the 1983 amendment to Penal Code section 667.5, the prosecution has conceded defendant was committed directly to the CYA pursuant to Welfare and Institutions Code section 1731.5, subdivision (a), and that such a direct commitment to the CYA does not constitute a prior prison term within the meaning of Penal Code section 667.5, subdivisions (b) and (j). We agree with defendant and accept the prosecution's concession.
*1384 The language of subdivision (j) of Penal Code section 667.5 appears on its face to apply only to transfers of youthful offenders to the CYA pursuant to subdivision (c) of Welfare and Institutions Code section 1731.5 and not to direct commitments to the CYA pursuant to subdivision (a) of that section. Penal Code section 667.5, subdivision (j) refers to "a person subject to the custody, control, and discipline of the Director of Corrections." A youthful offender who is directly committed to the CYA is not a person subject to the custody, control or discipline of the Department of Corrections. On the other hand, a youthful offender who is transferred to the CYA pursuant to subdivision (c) of Welfare and Institutions Code section 1731.5 is "deemed to be committed to the Department of Corrections" and remains "subject to the jurisdiction of the Department of Corrections and the Board of Prison Terms."
The clear import of the statutory language is supported by a review of the legislative history surrounding the enactment of the 1983 amendment to Penal Code section 667.5.[3] The purpose of the amendment which added subdivision (j) was to ensure that youthful offenders committed to the Department of Corrections following a felony conviction, but transferred to the CYA for housing and program participation, would be subject to the prior felony conviction enhancements of Penal Code section 667.5. (Legis. Counsel's Dig., Sen. Bill No. 1046, § 1 (1983-1984 Reg. Sess.).) The legislative history makes frequent reference to youthful offenders who have been sentenced to state prison but who are housed at CYA facilities. (Ibid.; Sen. Com. on Judiciary Rep. on Sen. Bill No. 1046, § 1 (1983-1984 Reg. Sess.); Sen. Off. of Research Mem. (April 5, 1983).) The legislative history indicates these youthful offenders were, for purposes of Penal Code section 667.5, to be treated as serving a state prison sentence even though they were actually confined in a CYA facility. (Ibid.; Assem. Com., Crim. Law and Public Safety Rep. prepared for June 1, 1983 hgs.) There is nothing in the legislative history which indicates a legislative intent to apply subdivision (j) of Penal Code section 667.5 to a direct commitment to the CYA under subdivision (a) of Welfare and Institutions Code section 1731.5.
Indeed, prior to the 1983 amendment, attempts had been made to include a direct commitment to the CYA in the definition of prior prison term for purposes of Penal Code section 667.5. These attempts were not successful. (Sen. Bill No. 332, § 1 (1981-1982 Reg. Sess.); Assem. Bill No. 3387, § 1 (1981-1982 Reg. Sess.).)
Thus, we hold that a direct commitment of a youthful offender to the CYA pursuant to Welfare and Institutions Code section 1731.5, subdivision (a) *1385 does not constitute a prior prison term within the meaning of Penal Code section 667.5, subdivisions (b) and (j). Subdivision (j) of Penal Code section 667.5 was intended to include transfers to the CYA of youthful offenders who had been sentenced to state prison pursuant to subdivision (c) of Welfare and Institutions Code section 1731.5 as prior prison terms, but was not intended to include direct commitments to the CYA under subdivision (a) of Welfare and Institutions Code section 1731.5. Accordingly, the evidence that defendant suffered a prior conviction for grand theft person for which he was directly committed to the CYA under subdivision (a) of Welfare and Institutions Code section 1731.5 is insufficient to support a true finding that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Thus, that finding of the trial court must be reversed and the additional sentence vacated.
DISPOSITION
The true finding as to the 1984 grand theft person prior prison term allegation in case number A759293 is reversed. The one-year enhancement for this prior prison term allegation is stricken. The judgment is modified to reflect a total sentence of 16 years and 8 months. As modified, the judgment is affirmed.
Armstrong, J., anc Godoy Perez, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 14, 1993.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Facts and parts I and II of Discussion.
[*] See footnote, ante, page 1379.
[1] Pursuant to Evidence Code section 452, subdivision (d), we have taken judicial notice of the superior court file in case number A759293.
[2] Welfare and Institutions Code section 1731.5 provides:
"(a) After certification to the Governor as provided in this article, a court may commit to the authority any person convicted of a public offense who comes within paragraphs (1), (2), and (3), or paragraphs (1), (2), and (4), below:
"(1) Is found to be less than 21 years of age at the time of apprehension.
"(2) Is not convicted of first degree murder, committed when that person was 18 years of age or older, or sentenced to death, imprisonment for life, imprisonment for 90 days or less, or the payment of a fine, or after having been directed to pay a fine, defaults in the payment thereof, and is subject to imprisonment for more than 90 days under the judgment.
"(3) Is not granted probation.
"(4) Was granted probation and probation is revoked and terminated.
"(b) The Youth Authority shall accept a person committed to it pursuant to this article if it believes that the person can be materially benefited by its reformatory and educational discipline, and if it has adequate facilities to provide that care.
"(c) Any person under the age of 21 years who is not committed to the authority pursuant to this section may be transferred to the authority by the Director of Corrections with the approval of the Director of the Youth Authority. In sentencing a person under the age of 21 years, the court may order that the person shall be transferred to the custody of the Youth Authority pursuant to this subdivision. When the court makes such an order and the Youth Authority fails to accept custody of the person, the person shall be returned to court for resentencing. The transfer shall be solely for the purposes of housing the inmate, allowing participation in the programs available at the institution by the inmate, and allowing Youth Authority parole supervision of the inmate, who, in all other aspects shall be deemed to be committed to the Department of Corrections and shall remain subject to the jurisdiction of the Director of Corrections and the Board of Prison Terms. Notwithstanding subdivision (b) of Section 2900 of the Penal Code, the Director of the Department of Corrections, with the concurrence of the Director of the Youth Authority may designate a facility under the jurisdiction of the Director of the Youth Authority as a place of reception for any person described in this subdivision.
"The Director of the Youth Authority shall have the same powers with respect to an inmate transferred pursuant to this subdivision as if the inmate had been committed or transferred to the Youth Authority either under the Arnold-Kennick Juvenile Court Law or subdivision (a).
"The duration of the transfer shall extend until the Director of the Youth Authority orders the inmate returned to the Department of Corrections, the inmate is ordered discharged by the Board of Prison Terms, or the inmate reaches the age of 25 years, whichever first occurs."
[3] We have taken judicial notice of the legislative history of Penal Code section 667.5, subdivision (j). (In re Lance W. (1985) 37 Cal.3d 873, 889.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264351/ | 886 A.2d 1112 (2005)
381 N.J. Super. 503
STATE of New Jersey, Plaintiff-Respondent,
v.
Charles OWENS, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted September 21, 2005.
Decided December 8, 2005.
*1113 Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Nichols, Designated Counsel, of counsel and on the brief).
*1114 Peter C. Harvey, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).
Before Judges STERN, FALL and GRALL.
The opinion of the court was delivered by
GRALL, J.A.D.
On November 21, 2003, defendant Charles Owens plead guilty to charges included in two indictments returned by the grand jurors for Mercer County: Number XX-XX-XXXX, a five count indictment returned on December 27, 2001, and Number XX-XX-XXXX, an eleven count indictment returned on August 20, 2002. Defendant's pleas were entered pursuant to an agreement with the State. Defendant appeals from the final judgments of conviction and sentence.
On the 2001 indictment, defendant plead guilty to count five, second-degree employing a juvenile in a drug distribution scheme, contrary to N.J.S.A. 2C:35-6, and was sentenced to a seven-year term, five without possibility of parole, which is the presumptive term and mandatory minimum period of parole ineligibility. N.J.S.A. 2C:35-6; N.J.S.A. 2C:44-1f(1)(c). He also plead guilty to count three, third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-5 and 2C:35-7, and was sentenced to a concurrent five-year term, with three years of parole ineligibility.
On the 2002 indictment, defendant plead guilty to count three, third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-5 and 2C:35-7. Pursuant to N.J.S.A. 2C:43-6f and based upon his simultaneous conviction on count three of the 2001 indictment, he was sentenced to the presumptive extended term of seven years, with three years of parole ineligibility. That sentence is concurrent with the sentence imposed on the 2001 indictment.
The judge also imposed a $4000 DEDR penalty, a $150 lab fee, a $150 VCCB assessment, a $225 SNSF assessment and a $90 LEOTEF penalty. She required defendant to provide a DNA sample, revoked his driving privileges for twenty-four months and directed him to complete his GED and participate in drug counseling when released on parole.
We conclude that the extended term based upon convictions and sentences entered in the same proceeding is an illegal sentence not authorized by N.J.S.A. 2C:43-6f. We affirm defendant's convictions but remand for resentencing on the 2002 indictment, reduction of the illegal LEOTEF penalty and elimination of the illegal parole conditions.
The procedural history is complex. Prior to entry of the guilty pleas, defendant was tried to a jury on the five counts included in the 2001 indictment. On September 26, 2003, the jury acquitted defendant of count four and convicted him of the remaining four counts.
Sentencing was scheduled for November 21, 2003. On that date, defendant entered into an agreement with the State that addressed all charges on which defendant had been convicted under the 2001 indictment and the charges included in the pending 2002 indictment. Under the agreement the State promised to dismiss the remaining charges in both indictments. The State agreed to recommend the following sentences: on count five of the 2001 indictment, seven years, five to be served without possibility of parole; on count *1115 three of the 2001 indictment, a concurrent five year sentence, three years without possibility of parole; and on count three of the 2002 indictment, a concurrent sentence of seven years, three without possibility of parole. Defendant agreed to waive his right to appeal.
Defendant provided the following factual basis. He admitted that on July 24, 2001, he provided a bundle of heroin to W.W., knowing that he was under the age of eighteen. He then watched while W.W. sold the drugs and subsequently collected the proceeds of that sale from W.W. The transaction took place across the street from and within fifty feet of a school. Defendant also admitted that on May 2, 2002, he gave drugs to Daniel English and received the proceeds after English sold the drugs. That transaction took place in the same location, across the street from the school.
The trial judge accepted the factual basis and sentenced defendant in accordance with the agreement immediately following the plea. The sentence imposed is set forth above.
On December 5, 2003, for reasons not reflected on the record, defendant and the State again appeared before the trial judge. The State asked the court to resentence defendant on the 2001 indictment to reflect the verdict returned by the jury. Defendant's attorney did not object, and the judge reinstated counts one and two, merging those counts with counts three and five, and imposing the same sentence.
Defendant raises the following arguments on appeal:
I. EMPLOYING A JUVENILE IN A DRUG DISTRIBUTION SCHEME WAS IMPROPERLY CHARGED IN THE INDICTMENT THUS NOT PROPERLY CHARGED TO THE JURY OR PROVEN TO THE JURY BEYOND A REASONABLE DOUBT, IT WAS NOT PROPERLY REPORTED AS A VERDICT BY THE JURY. (Not Raised Below)
II. THE STATE PRESENTED EVIDENCE TO THE JURY THAT WAS IRRELEVANT, PREJUDICIAL, AND MISLEADING; THE ADMISSION OF OTHER CRIMES EVIDENCE, ALONE AND WITHOUT LIMITING INSTRUCTION, WAS ERROR.
III. THE TRIAL JUDGE ABDICATED HER ROLE TO THE PROSECUTOR, VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
IV. THE TRIAL COURT ERRED IN FAILING TO DISCLOSE THE SURVEILLANCE LOCATION.
V. THE PLEA PROCESS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS.
A. THE PLEA PROCESS.
B. BRIMAGE GUIDELINES.
C. THE PLEA OFFER.
D. THE SENTENCES IMPOSED.
E. N.J.S.A. 2C:43-6F.
F. DEFENDANT WAS NOT ELIGIBLE FOR AN EXTENDED TERM SENTENCE.
G. BLAKELY v. WASHINGTON.
We will not consider the arguments raised in Points I through IV. "Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Knight, 183 N.J. 449, 470, 874 A.2d 546 (2005) (quoting State v. Crawley, 149 N.J. 310, 316, 693 A.2d 859 (1997)). This is *1116 because a guilty plea waives all issues, including constitutional claims, that were or could have been raised in prior proceedings. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973). In Tollett, the United States Supreme Court held:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
[411 U.S. at 267, 93 S.Ct. at 1608, 36 L.Ed.2d at 243.]
"Included within those constitutional rights that are deemed waived after entering an unconditional guilty plea are `the privilege against compulsory self-incrimination, the right to trial by jury, the right to confront one's accusers, and the right to a speedy trial.'" Knight, supra, 183 N.J. at 470, 874 A.2d 546 (quoting Crawley, supra, 149 N.J. at 316, 693 A.2d 859).
There are three recognized exceptions to the waiver principle, but none permit a challenge to trial errors. See Knight, supra, 183 N.J. at 471, 874 A.2d 546; State v. Robinson, 224 N.J.Super. 495, 500-01, 540 A.2d 1313 (App.Div.1988). R. 3:5-7(d) and R. 7:5-2(c)(2) permit appeal from denial of a motion to suppress physical evidence after a guilty plea; R. 3:28(g) permits appeal from denial of admission into a pretrial intervention program; and, R. 3:9-3(f) permits appeal of an issue preserved by entry of a conditional plea. Defendant presents no argument as to why he should be permitted to challenge the indictment or raise trial error on this appeal. See R. 3:10-2(c) (defects in the indictment must be raised prior to trial); State v. Del Fino, 100 N.J. 154, 160, 495 A.2d 60 (1985).
The conclusion that defendant waived pretrial claims and trial errors is not dependent upon defendant's agreement to forego appeal. Rather, it is based upon defendant's solemn admission of guilt which broke the chain of events. See Tollett, supra, 411 U.S. at 267, 93 S.Ct. at 1608, 36 L.Ed.2d at 243.
Defendant's admission of guilt distinguishes this case from State v. Gibson, 68 N.J. 499, 348 A.2d 769 (1975). In Gibson, following defendant's conviction by a jury of armed robbery, the State and the defendant negotiated a sentencing agreement based upon that verdict and defendant's plea of guilty to a second indictment. Id. at 502, 348 A.2d 769. In return for favorable sentences on the verdict, the second indictment and the dismissal of a third indictment, Gibson agreed to waive his right to appeal any trial error. Ibid. He did not plead guilty to armed robbery. Thus, Gibson's armed robbery conviction was based on the jury verdict not on his admission of guilt and voluntary plea.
On those facts, the Supreme Court considered whether a defendant who entered a post-trial sentencing agreement that included a promise to forego appeal, "irrevocably waived his right of direct appeal" from the jury verdict upon which the sentence was premised. Id. at 512, 348 A.2d 769. The Court concluded that a timely appeal should be permitted, subject to the State's right to withdraw from the agreement. Id. at 512-13, 348 A.2d 769.[1] In so holding, the Court distinguished the position of a defendant who waived the right to appeal but "never admitted [] guilt" from one who has "pleaded guilty." Id. at 512, 348 A.2d 769.
*1117 In this case, defendant acknowledged his guilt and provided an adequate factual basis to support a finding on the charges that were tried to the jury. Thus, he is in a different position than the defendant in Gibson, and the principles enunciated in Tollett, Knight and Crawley apply to bar his claims based upon errors or defects in the proceedings that preceded his plea.
While not common, post-verdict guilty pleas are not against public policy. Without questioning the validity of post-verdict agreements about sentencing, the Supreme Court and this court have recognized that such agreements are contemplated by the drug laws. See State v. Gerns, 145 N.J. 216, 221, 678 A.2d 634 (1996) (an agreement pursuant to N.J.S.A. 2C:35-12 "may take the form of a negotiated plea agreement or a post-verdict agreement"); State v. Gonzalez, 254 N.J.Super. 300, 305, 603 A.2d 516 (App. Div.1992) (N.J.S.A. 2C:35-12 permits a judge to relax mandatory sentences where there is a post-verdict agreement).
The mutual interests furthered by a guilty plea prior to trial remain after verdict and pending an appeal that may result in a new trial. State v. Shaw, 131 N.J. 1, 13, 618 A.2d 294 (1993) ("early disposition maximize[s] efficiency [and] furthers ... rehabilitation"); State v. Jimenez, 266 N.J.Super. 560, 570-71, 630 A.2d 348 (App. Div.1993) (citing role of pleas in conservation of available prosecutorial and judicial resources and promotion of rehabilitation through acknowledgement of "truth" and "acceptance of personal responsibility"). Indeed, in rejecting defendant's claim that a post-verdict agreement to waive appeal is illegal, the Supreme Court equated the benefits and burdens of pretrial and post-trial agreements. See Gibson, supra, 68 N.J. at 510, 348 A.2d 769; cf. State v. Williams, 277 N.J.Super. 40, 50-51, 648 A.2d 1148 (App.Div.1994) (holding that where defendant had rejected the State's plea offer and the case had been tried, the judge's "order vacating a valid jury verdict to allow the defendant to enter into an expired plea offer is contrary to public policy and the sound administration of justice" (emphasis added)); Commonwealth v. Stagner, 3 S.W.3d 738, 740 (1999) (noting that there is an element of wager on the outcome of trial regardless whether a plea agreement is reached prior to trial or while the jury is deliberating). There is no inherent unfairness in permitting an agreement that avoids appellate litigation and a subsequent trial through a knowing and voluntary acknowledgment of guilt and waiver of trial rights. See Gibson, supra, 68 N.J. at 506-13, 348 A.2d 769.
Defendant's objections to the plea process are wholly without merit. R. 2:11-3(e)(2). There was no undue time-pressure or improper cutoff of the time to enter a plea on the second indictment. The prosecutor objected to a postponement of sentencing on the jury verdict and extended a limited offer to resolve both indictments simultaneously. He did not foreclose future negotiations on the second indictment. Rather, he stated:
If he wants to think about a plea on the... matter that is still pending, ... I can recommend it concurrent to what he is about to be sentenced for, ... I'll hold that open.... [I]f he wants to plead to it later and run it concurrent to the sentence he is going to get on the trial matter, fine, but that package offer of seven over five on everything, that is off the table today.
The record also belies the claim that defendant did not have sufficient opportunity to consider the offer. On defendant's request to discuss the State's plea offer with his attorney, the trial judge suspended the proceeding to accommodate *1118 consultation. Upon returning to court, defense counsel advised, "I've had an opportunity to speak to Mr. Owens, and after giving this matter some considerable thought, and with some input from his family, he has indicated to me that he is willing to accept the plea offer and will give a factual basis." Defendant had completed and signed a plea form. The judge outlined the charges, the rights defendant was waiving and the terms of the agreement. The trial judge's finding that defendant's plea was "made voluntarily and intelligently with an understanding of the charges and consequences of the plea" is supported by the record. State v. Taylor, 80 N.J. 353, 362, 403 A.2d 889 (1979).
Defendant's sentence to an extended term for distribution of heroin in a school zone is an illegal sentence. The term was imposed pursuant to N.J.S.A. 2C:43-6f. In pertinent part the statute provides:
A person convicted of ... distributing [any dangerous substance] on or near school property or buses [under N.J.S.A. 2C:35-7] who has been previously convicted of ... distributing ... shall upon application of the prosecuting attorney be sentenced by the court to an extended term....
[N.J.S.A. 2C:43-6f (emphasis added).]
In State v. Hill, 327 N.J.Super. 33, 36, 742 A.2d 605 (App.Div.1999), certif. denied, 164 N.J. 188, 752 A.2d 1290 (2000), we held that the extended term provided in N.J.S.A. 2C:43-6f applies "[s]o long as a defendant `has been previously convicted' of a predicate offense at the time of sentencing..." (citation omitted). But in this case, defendant did not have a qualifying predicate conviction until he entered simultaneous guilty pleas to the charges in the 2001 and 2002 indictments. We cannot construe the terms of N.J.S.A. 2C:43-6f to apply to convictions entered in one proceeding.
As we stated in Hill, "In construing a statute, courts must seek to fulfill the statutory objective `so far as the terms of the legislation and proper consideration of the interests of those subject to it will fairly permit.'" Hill, supra, 327 N.J.Super. at 40, 742 A.2d 605 (quoting State v. Haliski, 140 N.J. 1, 17-18, 656 A.2d 1246 (1995)). "What the law as enacted says provides its meaning, and no further search is necessary or appropriate in absence of clear ambiguity." State ex rel. M.G., 307 N.J.Super. 348, 354, 704 A.2d 1025 (App.Div.), certif. denied, 154 N.J. 607, 713 A.2d 498 (1998). "Clear language precludes affording a statute any meaning other than as expressed." Ibid. There is no ambiguity that would bring a person who pleads guilty to two charges on the same day, in the same proceeding and pursuant to one agreement, within the terms of a provision that applies to one who "has been previously convicted."
In State v. Hawks, 114 N.J. 359, 554 A.2d 1330 (1989), the Supreme Court construed the extended term provision of the Graves Act which, like the statute at issue here, applies to a person "who has been previously convicted." N.J.S.A. 2C:43-6c. Both extended term provisions are focused on deterrence. Haliski, supra, 140 N.J. at 10, 656 A.2d 1246; Hill, supra, 327 N.J.Super. at 41, 742 A.2d 605. In light of that deterrent purpose, the Court held "that the extended term provisions of the Graves Act must be imposed on entry of a second firearms conviction, regardless of the order in which the offenses occurred." Hawks, supra, 114 N.J. at 367, 554 A.2d 1330; see id. at 363-64, 554 A.2d 1330 (discussing State v. Gillespie, 203 N.J.Super. 417, 423, 497 A.2d 232 (Law Div.1984) and State v. Windsor, 205 N.J.Super. 450, 455, 501 A.2d 194 (Law Div.1985)).
In Haliski, again relying on the deterrent purposes of the Graves Act, the Court eschewed a literal reading of N.J.S.A. *1119 2C:44-4b, which defines "prior conviction" as "an adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction,... provided that the time to appeal has expired ..." and held that the Legislature did not intend to prevent the imposition of an extended term while a prior Graves Act conviction was subject to appeal. Haliski, supra, 140 N.J. at 8, 17, 656 A.2d 1246. Instead, the Court directed trial judges sentencing an offender, whose qualifying predicate conviction is subject to appeal, to impose the extended term and permit the defendant to move pursuant to R. 3:21-10(b)(4) or R. 3:22-2 in the event of subsequent reversal of the predicate conviction. Id. at 20, 656 A.2d 1246.
Thus, the sequence of the crimes and convictions is irrelevant, and neither the first sentencing nor appeal must be complete. Haliski, supra, 140 N.J. at 17-20, 656 A.2d 1246; Hill, supra, 327 N.J.Super. at 43, 742 A.2d 605; see State v. Mangrella, 214 N.J.Super. 437, 445-46, 519 A.2d 926 (App.Div.1986), certif. denied, 107 N.J. 127, 526 A.2d 194 (1987). Nonetheless, there must be a prior adjudication at the time the extended sentence is imposed. Cf. State v. Livingston, 172 N.J. 209, 217-20, 797 A.2d 153 (2002) (precluding application of N.J.S.A. 2C:43-7.1a, which then applied to a person convicted "on two or more prior and separate occasions," to a person who plead guilty to separate indictments in a single continuous proceeding and noting that even under the Graves Act as construed in Hawks there must be a prior conviction). In this case, there was no prior adjudication, and the extended term is illegal.[2]
While the deterrent policy of the drug law might be furthered by allowing an extended term in this case, no decision of a court of this State has suggested that a person who has multiple convictions based on a single proceeding is a person who "has previously been convicted." N.J.S.A. 2C:43-6f. To reach that result, we would be required to redraft the statute to mandate an extended term for any person who "has more than one conviction" for a qualifying offense. This we will not do.
We reject the State's suggestion that the extended term can be upheld because a jury found defendant guilty of the predicate crime prior to the plea proceeding. The State and defendant negotiated an agreement independent of that verdict, and pursuant to that agreement defendant acknowledged his guilt of the crimes. His conviction is based upon that guilty plea. Like a defendant whose conviction is reversed on appeal, defendant, whose conviction is based on a post-verdict guilty plea, did not have a qualifying prior conviction before the plea proceeding. See Haliski, supra, 140 N.J. at 20, 656 A.2d 1246.
Accordingly, we affirm the convictions based upon the guilty pleas, vacate the extended term imposed under the 2002 indictment and remand for sentencing to an ordinary term on that indictment. The judgment of conviction on the 2001 indictment must be amended to reflect defendant's acquittal on count four, the dismissal of counts one and two pursuant to the plea, and defendant's plea of guilty on counts three and five. The LEOTEF penalty of $90 is also illegal. N.J.S.A. 2C:43-3.3 provides for a $30 penalty per disposition. Finally, the judge had no authority to impose conditions of parole, and that aspect of the sentence is vacated. See N.J.S.A. 2C:43-9.
NOTES
[1] The State did not exercise its right to annul the appeal. R. 3:9-3(d).
[2] These are defendant's first Superior Court convictions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264372/ | 744 A.2d 310 (1999)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Wanda VINING, Appellant.
Commonwealth of Pennsylvania, Appellee,
v.
Lee E. Jones, Appellant.
Superior Court of Pennsylvania.
Argued April 30, 1999.
Filed December 31, 1999.
Revised January 4, 2000.
*313 David Regoli, New Kensington, for Vining, appellant.
Christopher Huffman, Asst. Public Defender, Greensburg, for Jones, appellant.
Christian Scherer, Asst. Dist. Atty., Greensburg, for Com., appellee.
Before McEWEN, President Judge, and CAVANAUGH, DEL SOLE, JOHNSON, HUDOCK, EAKIN, JOYCE, MUSMANNO and ORIE MELVIN, JJ.
PER CURIAM.
¶ 1 The present appeals are from the judgments of sentence imposed upon Appellants, Wanda Vining and Lee Jones, following their convictions for numerous offenses stemming from the abuse of a two-and-a-half year old child who sustained injuries while in their care. Given the identical factual background and presence of common issues, resolution of both appeals can best be accomplished in a single opinion.[1]
¶ 2 The record regarding the factual background of this case reveals that on the morning of May 23, 1994, Ms. Laura Wright asked Wanda Vining and her live-in companion, Lee Jones, to baby-sit her two-and-a-half year old daughter Marlayna so that she could attend an appointment. This was not an unusual occurrence as Mr. Jones and Ms. Vining were the Wrights' neighbors and had often looked after their daughter in the past. However, what occurred that day was unusual. The day ended with Marlayna at Children's Hospital in Pittsburgh suffering from first and second degree burns on her chest, back, and legs and also with some bruises about her body and elevated enzyme counts, possibly indicative of some internal injuries. The nature of the injuries to Marlayna aroused suspicions in the health care workers prompting a notification of Children and Youth Services and the local police. For the next twelve days, Marlayna remained at Children's Hospital for treatment of her injuries. Following her release, she was placed into the custody of her maternal grandparents to permit her parents to receive counseling to assist them in dealing with Marlayna's injuries. During the hospitalization and afterward, an investigation was conducted which ultimately led to the arrests of Ms. Vining and Mr. Jones. Each were charged by separate informations of four counts of aggravated assault (Counts 1, 6, 12, and 13), a count of simple assault (Count 8), two counts of reckless endangerment (Counts 2 and 7), four counts of endangering the welfare of a child (Counts 3, 4, 9, and 10), and two counts of criminal conspiracy (Counts 5 and 11). The multiple counts reflect the separate allegations pertaining to the different injuries inflicted upon the child.
¶ 3 Ms. Vining, who lived in an apartment next to the Wrights, claimed that Marlayna was burned when she pulled a 48-ounce container of hot water down from the kitchen table onto herself after *314 Ms. Vining had left the kitchen.[2] Ms. Vining recounted she was in the process of making tea and had boiled water and placed tea bags in the large thermal mug. After hearing the child cry out she ran into the kitchen and found Marlayna on the floor with her shirt soaked by the hot water. Ms. Vining picked Marlayna up and held her until Marlayna calmed down. She then removed her shirt and applied milk compresses and some ointment to the reddened skin. When Ms. Vining was finished taking care of the burns, she dressed Marlayna in a blue jumper that belonged to one of her children. Marlayna soon asked to take a nap, and Ms. Vining put her to bed.
¶ 4 At approximately 11:00 a.m. Laura Wright returned home and went to pick up Marlayna. Ms. Vining told Ms. Wright that Marlayna was still asleep. She made no mention of the fact that Marlayna had been burned because she feared Ms. Wright would "freak out." Ms. Wright decided to let Marlayna finish her nap rather than wake her up. Shortly thereafter Ms. Vining went to the Wrights' apartment and informed Kevin Wright that Marlayna had been burned but it was nothing serious. Mr. Wright decided to allow Marlayna to continue napping. Ms. Wright was never informed about the burn and at about 2:00 p.m. returned to get her daughter. Ms. Vining indicated Marlayna was still sleeping and again failed to mention the burn.
¶ 5 Ms. Vining further asserted that when Marlayna woke up she stated that she needed to go to the bathroom. Mr. Jones took her into the bathroom and helped her out of the jumper and then discovered that the burned skin had begun peeling. Mr. Jones called Ms. Vining in and upon seeing the condition of the burns Ms. Vining decided to take Marlayna immediately to the emergency room. Just outside of the apartment Ms. Vining ran into Ms. Wright. She explained Marlayna had been burned, and the three of them proceeded to Citizens General Hospital. Sometime after they arrived at Citizens General Ms. Vining left. Marlayna was seen by an emergency room doctor and then taken to Children's Hospital in Pittsburgh when it was decided her condition was serious enough to warrant the specialized treatment that was available at Children's. In addition to the burns, Marlayna had some bruising around the genital/anal region as well as her back and thigh which Ms. Vining could not explain.
¶ 6 At trial Mary Carrasco, M.D. testified the burn pattern on Marlayna's body was unusual in that it took the shape of the clothing Marlayna had been wearing, specifically, a tank top, which indicated to Dr. Carrasco the burn was of a non-accidental origin. A similar opinion was rendered with regard to the bruises on Marlayna's back. Additionally, Marlayna presented with a distended and tender abdomen as well as with elevated enzyme counts. These symptoms were consistent with internal injury to the pancreas and liver and suggested some internal bruising of these organs. Dr. Carrasco testified that such an injury was consistent with a significant blow to the abdomen, either through an accidental trauma or being punched or kicked in the abdomen. Dr. Carrasco also opined Marlayna would have been in a great deal of discomfort and pain after experiencing the burns such that the need for immediate medical attention would be apparent, and further it was unlikely that Marlayna would have been able to sleep after sustaining such burns. Lastly, Dr. Carrasco testified the injuries were serious and, had there been significant internal injury, potentially life threatening as well. Additionally, Dr. Steven Myers, a pediatric surgeon, testified that upon asking the child who hurt or burned her Marlayna responded by uttering a name that sounded like "Rhonda."
*315 ¶ 7 Ms. Vining and Mr. Jones were tried jointly and convicted by a jury on all counts. Ms. Vining and Mr. Jones were each sentenced to a period of incarceration of four (4) to eight (8) years. Post-trial motions were filed and denied. The present appeals followed.
Commonwealth v. Wanda Vining
¶ 8 Appellant Vining raises four issues for our consideration: whether the evidence was sufficient to sustain the convictions for endangering the welfare of a child and conspiracy to commit that offense; whether the court erred in failing to grant a mistrial because of the prosecutor's remarks; whether the court erred in admitting the hearsay statements of the victim; and whether the court erred in denying a request to strike the jury panel after one of the jurors commented that she was afraid of the defendants.
¶ 9 Ms. Vining first challenges the sufficiency of the evidence to sustain her convictions on two counts of endangering the welfare of a child and conspiracy to endanger the welfare of a child.[3] We conclude that the evidence presented by the Commonwealth at trial was sufficient to sustain these convictions.
¶ 10 Initially, we note the well-known principle that upon a review of the sufficiency of the evidence we must view the evidence in favor of the Commonwealth as verdict winner allowing the Commonwealth the benefit of all reasonable inferences therefrom. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). Further we recognize that when addressing the sufficiency of the evidence, all testimony weighed by the fact-finder must be considered regardless of the admissibility of that evidence. Commonwealth v. Savage, 695 A.2d 820 (Pa.Super.1997).
¶ 11 Ms. Vining initially challenges her conviction under 18 Pa.C.S.A. § 4304, which provides that one endangers the welfare of a child if he or she knowingly violates a duty of care, protection or support. In order to sustain a conviction of this offense the Commonwealth must establish each of the following elements:
1) the accused is aware of his/her duty to protect the child;
2) the accused is aware that the child is in circumstances that could threaten the child's physical or psychological welfare; and
3) the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare.
Commonwealth v. Pahel, 456 Pa.Super. 159, 689 A.2d 963, 964 (1997).
¶ 12 Curiously, Ms. Vining does not challenge the sufficiency of the evidence to sustain the convictions for simple and aggravated assault. Although this is not the equivalent of a concession that the evidence was sufficient to uphold those convictions, the failure to challenge the evidence in that regard speaks volumes and begs the rhetorical question: if the evidence was sufficient to prove aggravated assault how could it fail to sustain a conviction for endangering the welfare of a child? The answer, we believe, is it cannot.
¶ 13 Dr. Carrasco indicated Marlayna had an elevation of her enzymes that was consistent with the internal bruising of the liver and pancreas. She further opined the most likely cause for this elevation in enzymes would be a major trauma to the abdomen such as might be seen if Marlayna had been in a severe accident or had been punched or kicked in the stomach in a very hard manner. N.T., Volume I, 2/7-19/97, at 586-87. Since there was an absence of evidence that Marlayna had suffered any kind of significant accident which was consistent with a major abdominal trauma, the jury was entitled to conclude *316 that Marlayna had been intentionally punched or kicked in the stomach in a hard manner. Dr. Carrasco also testified that the pattern of the burns Marlayna sustained were not consistent with an accidental spilling. The above, in combination with Marlayna's response of "Rhonda" to Dr. Myers' question "who hurt you?" and "who burned you?", would allow the jury to conclude Ms. Vining had punched or kicked Marlayna in the stomach and somehow purposely burned her. The doctor further opined both the abdominal injury and the burning were rather severe. The combination of these factors certainly satisfies the elements recited above. Ms. Vining had a duty to protect Marlayna as she accepted the role of babysitter. As the person who had burned and beaten Marlayna, she would be aware the child was in circumstances that threatened her physical well-being and those injuries were severe in nature. And yet, despite this knowledge, she failed to seek immediate medical attention.
¶ 14 Ms. Vining asserts the evidence was insufficient because the Commonwealth did not establish she was aware of the seriousness of Marlayna's injuries until Marlayna awakened from her nap and it was discovered that the burns had begun peeling. Ms. Vining continues it was at this point that she did seek prompt medical attention for Marlayna. However, Ms. Vining's argument presupposes the finding of a more benign version of the facts than the Commonwealth is entitled to as verdict winner. As summarized above, the Commonwealth is entitled to a review based upon the assumption that Ms. Vining intentionally inflicted the severe injuries and that a reasonable person would have understood that they required immediate medical attention. As such, the evidence was sufficient to sustain the convictions for endangering the welfare of a child.
¶ 15 As to her challenge to the sufficiency of the evidence of a conspiracy to endanger the welfare of a child, Ms. Vining's entire argument in this regard was tied to the challenge to the sufficiency of the evidence of the underlying endangering the welfare of a child charge. She simply argues since the evidence was insufficient to support the conviction for endangering the welfare of a child, it must fail as to conspiracy as well. Without commenting on whether the evidence was sufficient to sustain this charge, we note this argument must fail for two reasons. First, as stated above the evidence was certainly sufficient to support the endangering charge. Second, her statement of law is patently incorrect.
¶ 16 Two individuals can conspire to commit a crimeto rob a bank for instancebut abandon the cause or be thwarted prior to completion and still be guilty of conspiracy. All that is required for a conspiracy is an agreement to commit a crime and an overt act in furtherance of the agreement or plan. Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025 (1996). Indeed, in Commonwealth v. Timer, 415 Pa.Super. 376, 609 A.2d 572 (1992), we upheld a conviction for conspiracy to purchase and/or possess methamphetamine even though a sale never took place and was never going to take place because the undercover officers posing as suppliers had no intention of actually providing the drug. We reiterated that the evil which conspiracy seeks to punish is the agreement of two or more persons to act in concert for a criminal purpose. Thus, it is irrelevant to a conspiracy conviction that the crime supporting the conspiracy actually be proven. Rather, all that is necessary for the Commonwealth to prove is an agreement was reached to commit a crime and an overt act was taken in furtherance of it. Consequently, the argument advanced by Appellant can afford her no relief from the conspiracy conviction.
¶ 17 Ms. Vining next asserts a new trial is required because the trial court allowed inadmissible hearsay to her prejudice. She argues the testimony of Dr. Myers, to the effect that Marlayna responded "Rhonda" to his question "who burnt *317 you?" and "who hurt/hit you?", did not fall within any of the exceptions to hearsay and thus was improperly admitted over her objection. The trial court ruled after an in camera examination of Dr. Myers and full argument on the matter that the child's response was admissible as an excited utterance. The Commonwealth argues in support of the trial court ruling and as an alternative it claims that the response was properly admitted under the medical treatment/diagnosis exception to the hearsay rule. We disagree with both conclusions.
¶ 18 We recognize the admissibility of evidence is a matter addressed to the sound discretion of the trial court, and we may only reverse rulings on admissibility upon a showing that the trial court clearly abused its discretion. Commonwealth v. Weber, 549 Pa. 430, 701 A.2d 531 (1997).
¶ 19 As most recently noted by our Supreme Court:
The hearsay rule provides that evidence of a declarant's out-of-court statements is generally inadmissible because such evidence lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Hearsay evidence is presumed to be unreliable because the original declarant is not before the trier of fact and, therefore, cannot be challenged as to the accuracy of the information conveyed. Exceptions to the hearsay rule are premised on circumstances surrounding the utterance which enhance the reliability of the contents of the utterance, and render unnecessary the normal judicial assurances of cross-examination and oath.
Commonwealth v. Chamberlain, 557 Pa. 34, 731 A.2d 593, 595 (1999) (citations omitted.)
¶ 20 In order for a statement to come within the excited utterance exception it must be:
a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his [or her] reflective faculties.
Commonwealth v. Carpenter, 555 Pa. 434, 457, 725 A.2d 154, 165 (1999) (quoting Commonwealth v. Washington, 547 Pa. 550, 559, 692 A.2d 1018, 1022 (1997). The underlying rationale for this exception is that "the startling event speaks through the verbal acts of the declarant and vests reliability in an out-of-court statement whose accuracy would otherwise be suspect.... The spontaneity of such an excited declaration is the source of reliability and the touchstone of admissibility." Chamberlain, supra, at 596. Thus, an exited utterance is "the event speaking and not the speaker." Commonwealth v. Zukauskas, 501 Pa. 500, 462 A.2d 236 (1983). It is considered reliable and therefore admissible because it is made under the impact of an unexpected emotion and by such a traumatic event that the speaker, in effect is transformed into a "medium" for the message, and is no longer the messenger. Id.
¶ 21 When considering the factual circumstances surrounding Marlayna's statements, we conclude they do not meet the criteria for an excited utterance. The statements were made in direct response to repeated questioning. A review of Dr. Myers' testimony demonstrates the lack of spontaneity in the child's statements. He stated:
I asked the child if someone had hurt her. And she said yes. And I asked her who that was. And she madeshe stated a word that sounded very much to me like Rhonda, but I had to ask her several times to make sure that the first part of the word I understood. I still had some difficulty, but my best recollection *318 of what she told me on repeated questioning and repeated answering was Rhonda.
She stated that she was burnt. I asked her did Rhonda burn you? She said yes. Were you hurt by Rhonda? And the answer was yes. And hit by Rhonda. I don't remember in what sequence we asked those types of questions.
N.T. Vol. II 2/7 - 19/97, at 936-37.
¶ 22 The responses given to the questions posed by Dr. Myers were not proximate to the occurrence of the events in question and were not part of the same continuous transaction. The statements were made approximately ten to twelve hours after the incidents in question and after Marlayna had been in the company of numerous individuals. Indeed, despite the fact that Marlayna was in the presence of her parents, doctors, police officers and other health care workers for numerous hours after the alleged assault took place Marlayna never felt compelled enough by the unexpected, shocking and overwhelming nature of the experience to exclaim that "Rhonda" had beaten or burned her. Only upon being quizzed did she reply "Rhonda." Although the mere passage of time has not been found to negate an utterance as being induced by the overwhelming excitement of a shocking or traumatic event, generally speaking the passage of time will tend to diminish the spontaneity of the utterance and increase the likelihood that the utterance will be influenced by reflective thought processes or by contact with others.
¶ 23 Another factor greatly compromising the reliability of the statements is the fact that the utterance itself was in direct response to questions which presupposed an incriminating aspect. Dr. Myers did not ask Marlayna how she was burned or how she became bruised. He asked "who burned you" and "who hit you?" As such, the statements which were introduced into evidence were not Marlayna's statements as much as they were the statements of Dr. Myers. In so questioning Marlayna the responses did not transform Marlayna into a medium for the message of what she witnessed, but rather, she became the medium by which she could confirm the doctor's predetermined conclusions. Particularly in the case of a young child who may not be able to make or understand distinctions and nuances of language use, it is dangerous to be asking question that presuppose facts.
¶ 24 The general skepticism and concern underlying hearsay statements is grounded upon the fact that the declarant is not available for cross-examination to explain precisely what was meant by the statements, or explain the context in which they were made, nor is the declarant's veracity open for exploration and impeachment. As a result of these concerns the exceptions to the hearsay rules are always founded upon the reasoning that something about the exception makes the statement more reliable than the general class of hearsay statements. See Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996). The doctor's testimony in this case details the circumstances in which the child's statements were made. It demonstrates that the child's responses were made to pointed questions many hours after she was injured, thereby reducing the statements' reliability and setting it outside of the hearsay exception for an excited utterance.
¶ 25 We are aware of the case of Commonwealth v. Watson, 426 Pa.Super. 496, 627 A.2d 785 (1993), which allowed the admission of a child's statement "my daddy did it," given in response to a question inquiring how he had burned his hand. However, there are factors which distinguish the present case from Watson. First and foremost is the fact that the response in Watson was more proximate in time to the incident. The child made the statement in the ambulance, which was called to the scene after he had been burned. In the present case the statement was not made until approximately twelve *319 hours after the incidents occurred. Secondly, the child in Watson was described as "crying and scared and nervous" when he made the statement, thus prompting the court to conclude that it was clear that the child was still "suffering from the emotional shock and trauma of that incident when he made that statement." Id. at 788. In contrast, Marlayna was described as lethargic and subdued and uncomfortable at the time she made her statements.
¶ 26 Also quite important is the fact that the child in Watson made the statement prior to having much contact with others and in response to a general question, as opposed to a leading question. The victim here made the statements after she had already been seen in the local emergency room, transported by ambulance to Children's Hospital in Pittsburgh, in the presence of her mother and EMTs, and after being seen by one or two doctors and various nurses at Children's Hospital. Marlayna was also asked specifically if "Rhonda" burned her, and if she was hurt by "Rhonda." Simply put, the factors presented in Watson are more in keeping with the spirit of the hearsay exception than those presented here. Those factors tended to reduce the possibility that the child's perception was influenced by the comments, questioning and conversations of others in his company after the incident but prior to the declaration, or by the form of the question put to him. The same indicia of reliability is not presented here and it would be inconsistent with the spirit of the excited utterance exception to allow the introduction of Marlayna's statements made to the doctor.
¶ 27 The Commonwealth argues that if the statement was improperly admitted as an excited utterance it was nonetheless properly admitted as a statement given for purposes of securing medical treatment. We cannot agree. In Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996) our Supreme Court refused to expand the scope of the medical treatment exception beyond its relatively limited nature to include the identity of a perpetrator. In Smith a nurse treating a young child suffering from severe burns asked the child what happened to her and the child responded: "[d]addy turned on the hot water and daddy put me in the water." Id. at 1290. The Court set forth the prevailing view that the identity of the assailant or perpetrator who may have caused the injury for which medical treatment is being sought, is not within the medical treatment exception because the identity of the abuser is not pertinent to medical treatment. While disclosing the events surrounding an injury may be important for medical treatment or diagnosis, identifying the person responsible for the injury is not medically necessary. It can be argued that the physical characteristics of a perpetrator may be relevant for diagnosis. Although it is conceivable that it may be important to learn that the perpetrator was an male adult, there is no reason consistent with the medical treatment exception to admit the identity of the perpetrator.
¶ 28 Thus, we conclude the statements of Marlayna were inadmissible hearsay. Inasmuch as these statements are the only evidence directly linking Appellant to the infliction of injuries to the child, we further conclude their admission was highly prejudicial. The nature of the statements made in response to particular questions, suggested the injuries were intentionally inflicted, not the result of an accident, as Appellant claimed at the time. As such, the admission of these statements was crucial evidence against Appellant. Consequently, we must conclude that the admission of the hearsay statements was prejudicial to a degree requiring the grant of a new trial.
¶ 29 Given our decision to grant Appellant a new trial, we find it unnecessary to address the other contentions of error she raises.
*320 Commonwealth v. Lee Jones
¶ 30 Mr. Jones sets forth the following nine issues for our review:
1.) Whether the Commonwealth has failed to establish that Lee [J]ones acted as the principal or an accomplice in the crimes charge[d] in Counts 1 through 13 of the Information filed at 3180 Criminal 1994?
2.) Whether the Commonwealth has offered evidence consistent with the opposing propositions and thus has proven neither?
3.) Whether the statements made by Marlayna Wright to Dr. Myers were admissible as an excited utterance?
4.) Whether the comments made by one juror, that she was afraid of the defendants, which all selected jurors became aware of, required the court to dismiss the jury?
5.) Whether comments made in closing arguments by the assistant district attorney,..., which were completely unsupported by facts, constitutes prosecutorial misconduct?
6.) Whether testimony elicited by the assistant district attorney, ..., which she knew would be different than what was given in her offer of proof, was prosecutorial misconduct?
7.) Whether the assistant district attorney,..., committed prosecutorial misconduct when she asked Laura Wright if she had ever observed the effects of physical violence between the defendants?
8.) Whether the assistant district attorney,..., committed prosecutorial misconduct when she argued a law to the jury which does not exist?
9.) Whether the Commonwealth failed to present testimony which established that Lee Jones knew that the injuries sustained by Marlayna Wright were of a serious nature that required immediate medical attention?
Mr. Jones' brief at 3.
¶ 31 We begin by addressing Appellant Jones' challenges to the sufficiency of evidence as to all charges. He argues the Commonwealth presented no evidence he acted as a principal in any of the charges, and also the Commonwealth failed to establish that he acted as an accomplice.[4] With respect to most of the charges for which Appellant was convicted, we must agree.
¶ 32 Our well-established standard in reviewing a sufficiency of the evidence claim is that viewing the evidence in a light most favorable to the Commonwealth, we must determine whether the evidence presented at trial, including all reasonable inferences that may be drawn therefrom, was sufficient to prove all the elements of the crime for which the appellant challenges beyond a reasonable doubt. Commonwealth v. Uderra, 550 Pa. 389, 396, 706 A.2d 334, 337 (1998). Moreover, we must keep in mind that "[t]he credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact, who is free to believe all, some or none of the evidence." Commonwealth v. Perez, 698 A.2d 640, 645 (Pa.Super.1997).
¶ 33 We are cognizant of the difficulties often facing the prosecution in cases of child abuse. Typically in such cases one finds, as here, the only witnesses to the events that transpired are a young victim and the alleged perpetrators. Nonetheless, the law still requires the Commonwealth prove the elements of each crime beyond a reasonable doubt as to each co-defendant individually. The trial court candidly concedes no direct evidence was presented that Mr. Jones personally committed *321 the assaults supporting the numerous offenses charged. While the Commonwealth presented sufficient evidence to permit the jury to legally conclude that an intentional assault had taken place, the problematic nature of this finding is identifying who inflicted the assaults. The only evidence tending to identify the assailant was the hearsay statements of Marlayna. However, that identification was of "Rhonda" which the jury could reasonably interpret to mean Wanda Vining. There was no evidence presented which pointed to Mr. Jones as the perpetrator of the assaults in question.
¶ 34 Apparently aware of the lack of evidence directly tying Mr. Jones to the commission of the assaults as well as a lack of circumstantial evidence showing direct participation in the assault, the Commonwealth relies heavily upon an accomplice theory. However, the Commonwealth has similarly failed to present any evidence Mr. Jones acted as an accomplice and essentially relies upon a basic assumption that since he was present during or after the injuries were sustained, and given his close relationship with Wanda Vining, he must have been an accomplice. Of course, this is the quintessential "guilt by association" theory which has been soundly rejected in our jurisprudence.
¶ 35 The very nature of accomplice liability is that one who actively and purposefully engages in criminal activity is criminally responsible for the criminal actions of his/her co-conspirators which are committed in furtherance of the criminal endeavor. However, in order to impose this form of criminal liability the individual "must be an active partner in the intent to commit [a crime]." Commonwealth v. Fields, 460 Pa. 316, 319-20, 333 A.2d 745, 747 (1975). Further, an accomplice "must have done something to participate in the venture." Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978). Lastly, "mere presence at the scene is insufficient to support a conviction: evidence indicating participation in the crime is required." Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983). Most importantly, the law requires some proof that a party was an active participant in a criminal enterprise in order to impose accomplice liability. Such a finding cannot be based upon mere assumption or speculation. In Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966), our Supreme Court stated:
Appellant's presence on the scene, both immediately prior and subsequent to the commission of the crime, was established. This fact, however, in the absence of other evidence indicative of appellant's participation in the robbery, did not warrant submission of the case to the jury.
Although the Commonwealth proved Mr. Jones' was present in the apartment before and after the assault(s), it presented no additional evidence Mr. Jones participated in them or otherwise helped to facilitate them. As such, the Commonwealth has not proven Mr. Jones acted as an accomplice in the commission of the offenses in question.
¶ 36 The Commonwealth also argues Mr. Jones is "liable by omission," that his mere presence in a small apartment is sufficient to impose liability as if he had personally assaulted the victim because he did not prevent the assault. This is an interesting and novel argument but one which is virtually unsupported in law. Under this theory Mr. Jones had an obligation to protect and care for Marlayna and his dereliction of that duty made him an accomplice to the assault and, essentially, just as culpable as if he personally beat and burned the child. Under the circumstances of this case we cannot agree.
¶ 37 We have found only one case in which an individual was found culpable by omission for the intentional assault of another. In Commonwealth v. Howard, 265 Pa.Super. 535, 402 A.2d 674 (1979), a child's mother, Darcel Howard, was found *322 guilty of involuntary manslaughter for failing to intervene and/or prevent beatings and abuse of her daughter at the hands of Howard's live-in boyfriend. In affirming the conviction we acknowledged the terms of 18 Pa.C.S.A. § 301(b)(2), the very same section the Commonwealth suggests provides a basis for imposing criminal liability in the present case. This section allows imposition of criminal liability based upon an omission, as opposed to an act, where a duty to perform the omitted act is otherwise imposed by law. A panel of this Court determined that Howard's "failure to protect the child was a direct cause of her death, and that such failure was reckless or grossly negligent under the circumstances." Id. at 676.
¶ 38 Although criminal liability was imposed upon Ms. Howard for the direct assaults committed by her boyfriend, Edward Watts, the circumstances of the Howard case are considerably different than those presented here. Howard involved a case of a "continuing pattern of severe beatings, abuse, and sadistic torture inflicted on her child by Watts over a period of at least several weeks." Id. at 678. Although Ms. Howard was found criminally liable for failing to prevent her child's death, liability was not imposed because she failed to step in when the fatal blows were being administered but rather because "[Ms. Howard] did nothing to protect her child. She never evicted or even discouraged Watts. She never reported anything to the public authorities." Id. Thus, her liability was founded upon her failure to take steps during the periods between the beatings and assaults.
¶ 39 It is one matter to impose criminal liability when a parent or caretaker fails to alert authorities when there is knowledge of an ongoing and regular abuse of a child at the hands of another. It is quite another matter altogether to impose liability when an individual fails to prevent an unexpected and sudden assault on a child. We must be mindful that the premise of this form of liability is that the person who did nothing is just as culpable as the one who inflicted the assault.[5] At first blush this theory of liability may appear to fly in the face of the fundamental concepts of personal responsibility and personal liability. However, when considering liability for a failure to intervene during weeks of abuse this theory has a certain visceral appeal. Such inactivity in the face of a known danger should certainly not be condoned, and it would not seem fundamentally unfair to attach some, if not equal, criminal liability to such an omission. But to impose the same degree of culpability upon one whom witnesses, but fails to prevent, a brutal attack of another is less convincing. The person who witnesses a brutal attack has less time to reflect upon the matter, less time and opportunity to intervene and may place him/herself in harm's way if he/she attempts to intervene.
¶ 40 The above concerns notwithstanding, and assuming such a theory is legally viable, the Commonwealth's argument still fails because imposing liability under the above theory presupposes that an attempt to intervene would have been successful.[6] In this regard the Commonwealth has failed to establish that Mr. Jones had an opportunity to prevent the abuse which occurred here. The only evidence presented by the Commonwealth that established his whereabouts during the period in question was the testimony of Laura Wright, who testified Mr. Jones was present when *323 she dropped Marlayna off in the morning, and the testimony of Mr. Jones and Ms. Vining from a prior hearing. Mr. Jones and Ms. Vining both indicated he was on the couch in the living room when Marlayna got burned. Although the jury was not required to believe their testimony, the Commonwealth presented no other evidence that Mr. Jones was close enough to Marlayna when she was assaulted, or that the assaults were prolonged enough, to allow him an opportunity to intervene. As such, it was not proven that Mr. Jones had a reasonable opportunity to intervene and prevent the assaults from occurring and, therefore, the convictions cannot be sustained under this theory.
¶ 41 As a result of the above analysis we must conclude the evidence was insufficient to sustain the convictions on counts 1 (aggravated assault), 2 (reckless endangerment by burning), 3 (endangering welfare of child by burning), 6 (aggravated assault), 7 (reckless endangerment regarding by beating), 8 (simple assault), 9 (endangering welfare of child by beating), 12 (aggravated assault) and 13 (aggravated assault). These charges were all related to, and dependent upon, a finding that Mr. Jones either beat and burned Marlayna himself, or acted as an accomplice in the beating and burning of Marlayna. The Commonwealth did not present sufficient evidence from which a jury could reasonably make these findings.
¶ 42 However, as to the sufficiency of the evidence of the charges at counts 4 and 10, for endangering the welfare of a child by failure to seek prompt medical attention, and at counts 5 and 11, for conspiracy by failure to seek prompt medical treatment with the intent of facilitating the crime of endangering the welfare of children, we conclude that sufficient evidence was presented to sustain the convictions on those charges.
¶ 43 As to the crimes of endangering the welfare of a child, these two charges relate to Mr. Jones' breach of his obligation, as temporary caregiver of Marlayna, to seek prompt medical treatment. As we concluded above, the evidence may have been insufficient to establish his liability as to the assaults on Marlayna, either as having inflicted them personally or being an accomplice to them. Nevertheless, there was evidence he was present in the apartment sometime after Marlayna was burned and, as the jury found, beaten, and that the nature of the injuries to Marlayna would have been apparent. Despite this fact, medical attention was not sought for several hours after the sustaining of these injuries. The jury was entitled to find from this evidence that Mr. Jones knew Marlayna had been injured and was in need of medical attention, yet failed to immediately seek medical attention for Marlayna.
¶ 44 With respect to the conspiracy convictions there is no developed argument which attacks these convictions. Mr. Jones' general thesis attacks the evidence that he personally inflicted the injuries or was an accomplice. Conspiracy is a crime involving the agreement to commit a crime. As such, his attacks on direct or accomplice liability do not relate to the separate crime of conspiracy for failing to seek prompt medical attention, and no other challenge has been presented. Consequently, there being no challenge to the conspiracy convictions those convictions must stand. As such, we conclude that the evidence was sufficient to support the convictions on counts 4, 5, 10 and 11.
¶ 45 With respect to these convictions Appellant, like his co-defendant Ms. Vining, challenges the admission of the hearsay response of Marlayna as testified to by Dr. Myers. We have already determined that this testimony was inadmissible and have ruled that it was prejudicial to Vining, requiring her to receive a new trial. This evidence, however, pointed to the culpability of Vining in an intentional assault on the child. This testimony had no relevance to the charges against Appellant Jones for endangering the welfare of a *324 child. These charges related to Appellant's failure to seek medical attention for the injured child, regardless who injured the child or if the injury was intentionally inflicted. Thus we find, as to these charges, the admission of this hearsay testimony was not so prejudicial as to warrant an award of a new trial.
¶ 46 We have examined the remainder of Appellant's arguments and given them full consideration. Having done so we have concluded that these claims have either been rendered moot by our reversal of Appellant's convictions on the above-named counts, or alternatively, have been adequately responded to by the trial court it its opinion. We see no need to disturb the court's ruling or expand on its discussion.
¶ 47 To summarize, the judgment of sentence imposed upon Appellant Wanda Vining is vacated and the case is remanded for a new trial. The convictions imposed upon Appellant Lee Jones for counts 1, 2, 3, 6, 7, 8, 9, 12 and 13 of the information, comprising multiple charges of aggravated assault, simple assault and endangering the welfare of a child, are reversed and the related sentences vacated. The convictions and related sentences imposed upon Appellant Lee Jones for counts 4, 5, 10 and 11 of the information, comprising two counts each of endangering the welfare of a child and conspiracy, are affirmed.
¶ 48 Judgment of sentence imposed upon Wanda Vining vacated and the matter remanded for a new trial. Judgment of sentence imposed upon Lee Jones affirmed in part, and vacated in part. Jurisdiction relinquished.
¶ 49 CAVANAUGH, J., files a concurring opinion.
¶ 50 ORIE MELVIN, J., files a concurring and dissenting opinion in which HUDOCK, EAKIN and HOYCE, JJ., join.
CAVANAUGH, J., concurring:
¶ 1 I join the Opinion Per Curiam with respect to the award of a new trial for Wanda Vining. I also join in the reversal and vacation of the convictions of appellant, Lee Jones, for counts 1, 2, 3, 6, 7, 8, 9, 12 and 13. As to the convictions of appellant, Lee Jones, for counts 4, 5, 10 and 11, I would grant a new trial as I feel it is inappropriate to affirm a conviction on a properly diminished record.
ORIE MELVIN, J., dissenting and concurring.
¶ 1 I respectfully dissent from the majority's resolution of the hearsay issue as I find the instant facts to be sufficiently similar to those in Commonwealth v. Watson, 426 Pa.Super. 496, 627 A.2d 785 (1993) as to be indistinguishable. I would therefore affirm the judgment of sentence imposed upon Wanda Vining. I also concur and dissent in the result reached by the Majority in the appeal by Lee Jones.
¶ 2 In the Vining appeal the majority, in exploring the factors that allegedly distinguish this case from Watson, incorrectly assumes that "the response in Watson was more proximate in time to the incident." Majority Opinion at 318. My reading of Watson indicates there was no evidence of the time frame between when the child was burned and when the ambulance was called. The defense in Watson, as in the present case, argued the statement was influenced by the lapse of an undisclosed period of time after the child had been injured and therefore lacked the spontaneity of an excited utterance. In finding the statement admissible as an excited utterance the Watson Court noted that "[l]ength of time is an element that must be weighed along with other considerations. It varies with the circumstances and from case to case. It does not alone decide admissibility." Id. at 788. In Watson, the only evidence of when the child was burned was the doctor's opinion that it would have been within the last twenty-four *325 hours. Hence, proximity cannot be a distinguishing factor.
¶ 3 Next, the majority relies upon the fact that the child in Watson was described as `crying and scared and nervous' contrasted with the description of the instant victim being "lethargic and subdued and uncomfortable." Majority Opinion at 319. The actual complete description of the doctor's observation of the victim reads as follows:
Q. And could you tell me, please, Doctor, what you observed when you examined the child?
A. I examinedI observed that the child was in discomfort, was somewhat lethargic, was very irritable and appeared to be in pain.
N.T. Volume II, 2/7-19/97, at 975. The majority's paraphrasing of this testimony does not do justice to the victim's condition. Moreover, the Doctor further testified that he prescribed morphine for the pain. Surely this child was still suffering from a traumatic event and the severe physical pain which accompanied it.
¶ 4 The majority next finds a distinction based upon the number of people the respective victims came in contact with prior to making the statement. In this regard the only contacts the child had were with her mother, while being transported to the hospital, and with the medical personnel. The mother testified that she merely held her child on the way to the hospital and did not ask her any questions, believing what she had been told that it was an accidental burning. The mother's testimony was not contradicted and her credibility was a matter for the trial judge to resolve. I am not persuaded that contact with various medical personnel could have in any way caused the statement to emanate from the child's reflective faculties. I am satisfied that there is ample evidence here to support the trial court's conclusion that insofar as the child was concerned, the startling event was on-going and she was still under its influence. It is doubtful that a 2½-year-old child, who only had limited contact with her parents during the time she was being treated, would have engaged in independent thought sufficient to fabricate a statement to be made to others.
¶ 5 The excited utterance exception properly understood relates to a lack of capacity to fabricate rather than the lack of time to fabricate. Therefore, the question is not whether it is likely that the child's statements were falsely made but rather whether the totality of the circumstances surrounding the making of the statements suggest reliability and lack of opportunity for the deliberation and preparation attendant to giving a false statement. Generally, there are three essential components to this exception. First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made while the person is under the stress of excitement caused by the event. Third, the statement must have been made before there had been time to contrive or misrepresent.
¶ 6 There is no bright line test by which to measure the length of a permissible time gap for the number of hours or days that the excitement can be said to continue from the stress of a crime. All that is required is a showing that the time was sufficiently short under the facts to fall within the limits of the exception. I believe under the compelling circumstances of child abuse a liberal evaluation of this exception should be employed. Moreover, I note that the special circumstance attendant to child abuse victims and witnesses has also been recognized by our legislature's enactment of the Child Victims and Witnesses Act. 42 Pa.C.S.A. §§ 5981-5988.[7]
*326 ¶ 7 The final distinction raised is that the instant victim responded to a leading question as opposed to a general question. The question "who burnt you" does not suggest the answer, thus I fail to see how it is leading. In any event the form of the question does not bear upon whether or not a statement is an "excited utterance." As noted in Commonwealth v. Pronkoskie, 477 Pa. 132, 141, 383 A.2d 858, 862 (1978), our Supreme Court has repeatedly held "that the mere fact that a statement is made in response to a question does not prevent its admission as a res gestae statement." (citing Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973) and Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968)).
¶ 8 I would also point out that the trial court conducted an in camera hearing where all of these factors were examined and weighed by the trial court. In reaching its decision the court stated:
This has been a question that I have been grappling with for several days and trying to resolve in my own mind. And I needed to hear everything that there was to hear before making the decision. The only condition that's really dispositive, the only factor really dispositive, the declarant must have been subjected to some shocking event. After that point all other surrounding circumstances are to be considered. And all those other factors that are listed in the case law are not in an [sic] of themselves dispositive but are factors to consider along with everything else. Obviously in this case the victim's mind was made subject to the overpowering emotion that was caused by the unexpected and shocking event of being burned. The statement to Doctor Meyers in my estimation was made in response obviously to the questions of the doctor. But in my mind there's no indication that the statements that were made by this child were the result of some premeditation and consideration by the child or by some design on her part. I do believe that the spontaneity of the statement was maintained even though they were in response to the questions of the doctor. As I indicated previously, there is no clear-cut rule as to the time period that must pass before such statement should or must be excluded. And as I said to Mr. Huffman ..., this statement was made during a continuing course of treatment of the child for her injuries. This continuous course of treatment at the various hospitals was in my determination actually really a continuation or closely related to the shocking event that took place earlier in the day. In addition, I have not heard any evidence to establish that the child, in fact, was subjected to any influence or coaching. Nor do I believe the circumstances indicate that this statement was the result of some confabulation on the part of the child. For all those reasons I'm going to determine and find that the statement is admissible and will hear the doctor,....
N.T. Volume II, 2/7-19/97, at 968-970.
¶ 9 It is important to remember that the admissibility of evidence is a matter addressed to the sound discretion of the trial court, and that we may only reverse rulings on admissibility upon a showing that the trial court clearly abused its discretion. Commonwealth v. Weber, 549 Pa. 430, 701 *327 A.2d 531 (1997). Keeping this standard in mind, I fully agree with the trial court's analysis of this issue and can find no abuse of discretion.
¶ 10 Therefore, I would affirm the judgment of sentence as to Wanda Vining.
¶ 11 As to Lee Jones, I join the majority's determination to reverse as to counts 1, 3, 6, 8, 9, 12 and 13 of the information. However, as to the reversal on counts 2 and 7, I would merely vacate the convictions and remand for a new trial for the following reason. Applying the Majority's analysis with respect to the endangering the welfare of a child charges at counts 4 and 10, I likewise would find that there was sufficient evidence to sustain the convictions at counts 2 and 7, relating to reckless endangerment 18 Pa.C.S.A. § 2705, based upon the failure to seek prompt medical attention. In Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988 (1992), this Court held that criminal liability for the offense of reckless endangering another person can be based upon an omission if an omission, where a duty to act was recognized, created a substantial risk of death or great bodily harm. However, since this theory was not charged and a jury is not permitted to base its verdict on a theory not charged, see Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984), I would merely vacate these convictions and remand for a new trial.
¶ 12 HUDOCK, EAKIN and JOYCE, JJ., join in this dissenting and concurring opinion.
NOTES
[1] The bulk of this Opinion is taken from the panel opinion in this case authored by the Honorable John G. Brosky, with his consent. That opinion was withdrawn upon the grant of this court's en banc review.
[2] Neither Ms. Vining nor Mr. Jones testified at trial, but both testified under oath and represented by counsel at a hearing regarding the investigation of the incident.
[3] After the close of the Commonwealth's case, the Commonwealth conceded the conspiracy charge applied only to the charge of endangering the welfare of a child.
[4] All the counts except 4, 5, 10 and 11 are based upon allegations that appellant was either a perpetrator of the assaults or an accomplice in the perpetration of the assaults. Counts 4 and 10 set forth charges of endangering the welfare of a child based upon an omission, the failure to seek prompt medical treatment, and counts 5 and 11 allege a conspiracy to commit endangering the welfare of a child.
[5] Essentially, this is additional liability above that provided for in Endangering the Welfare of a Child in which the failure to act is an element of the offense. See Commonwealth v. Pahel, 456 Pa.Super. 159, 689 A.2d 963 (1997).
[6] Imposition of criminal liability in Howard was predicated, in part, upon a causation analysis where Ms. Howard's inactivity was concluded to be a legal cause of the child's death. Thus, to prevail upon this theory the Commonwealth would need to establish not only an opportunity to intervene but that the failure to intervene resulted in the assault or injury supporting the criminal charges.
[7] The tender years exception to the hearsay rule provides:
§ 5985.1. Admissibility of certain statements
(a) General rule. An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in 18 Pa.C.S. Ch. 31 (relating to sexual offenses) performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
(Emphasis added). This provision was amended in 1996 to make it applicable to cases of physical as well as sexual abuse. However, at the time of the start of the instant trial it had not yet become effective. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264377/ | 744 A.2d 338 (1999)
COUNTY OF BUTLER
v.
LOCAL 585, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, and Local 2640, American Federation of State, County, and Municipal Employees
v.
Buckingham Security, Ltd. and Adcare Corporation and County of Butler
v.
Buckingham Security, Ltd. and Adcare Corporation
Buckingham Security, Ltd. and Adcare Corporation, Appellants.
County of Butler
v.
Local 585, Service Employees International Union, AFL-CIO, and Local 2640, American Federation of State, County, and Municipal Employees
v.
Buckingham Security, Ltd. and Adcare Corporation and County of Butler
v.
Buckingham Security, Ltd. and Adcare Corporation.
County of Butler, Appellant.
Commonwealth Court of Pennsylvania.
Argued February 10, 1999.
Decided October 7, 1999.
Reargument Denied December 8, 1999.
*339 Allen E. Ertel, Williamsport, for appellants.
Richard DiSalle, Pittsburgh, for appellee, County of Butler.
Before COLINS, President Judge, and McGINLEY, J., PELLEGRINI, J., FRIEDMAN, J., KELLEY, J., FLAHERTY, J. and LEADBETTER, J.
*340 FLAHERTY, Judge.
Buckingham Security Ltd. and Adcare Corporation (collectively, Buckingham) appeal from the denial of the Motion for Judgment and the County of Butler (County) cross-appeals from an order of the Court of Common Pleas of Butler County (trial court) which granted the summary judgment motion of the County. We affirm.
In 1985, the Butler County Board of Commissioners purchased a building located in Butler, Pennsylvania, to use as a minimum security facility for the rehabilitation of County inmates to be known as the "Washington Center". The Commissioners decided to offer its operation to private companies by accepting bids for the contract. Buckingham was the successful bidder and on July 30, 1987 the County and Buckingham entered into a three-year contract giving Buckingham a lease to manage and operate the facility for the County.[1]
After a newly elected Board of Commissioners took office in January of 1988, the Board instructed the County's solicitor to seek a declaratory judgment of the contract. The contract had an arbitration clause and pursuant to this clause, on January 28, 1988, Buckingham filed a demand for arbitration with the American Arbitration Association.[2] Subsequently, on February 8, 1988, the County filed a complaint for declaratory judgment to determine the validity of the contract and it also filed an action in equity to enjoin the arbitration of the dispute on the grounds that the arbitration clause was part of a null, void and illegal contract. The County also requested a preliminary injunction against the arbitration pending the outcome of the declaratory judgment action. On March 24, 1988, the trial court entered an order in the equity action granting the preliminary injunction request and enjoining any arbitration of the matter until the declaratory action was resolved.
On July 11, 1991, Buckingham sought to have the preliminary injunction dissolved. In addition, on August 15, 1991, the County made a motion for judgment on the pleadings. In the motion for judgment on the pleadings, the County argued that the act of entering into the contract for three years by the earlier Board of Commissioners was a governmental act as opposed to a proprietary act and, therefore, could not bind any successor Boards of Commissioners for any time beyond the term of the Board which entered into the contract.
On November 27, 1991, the trial court denied Buckingham's motion to dissolve the preliminary injunction and it also denied the County's motion for judgment on the pleadings. In addressing Buckingham's motion, the trial court maintained that the declaratory judgment action concerning the validity of the contract must be resolved prior to arbitration. In addition, in addressing the County's motion the trial court concluded that the Board of Commissioners' act of entering into the contract was a proprietary act, not a governmental act and, therefore, the contract was binding upon successor Boards.
Buckingham appealed and the County cross-appealed the trial court's decisions to this Court which, in an opinion dated October 19, 1992, affirmed the trial court's order and denied dissolution of the preliminary injunction. In addition, this Court quashed the County's appeal as being interlocutory given that it was an appeal *341 from a motion for judgment on the pleadings. However, the Court then went on to conclude that the trial court was correct in deciding that the act of the Board of Commissioners in entering into the contract was a proprietary act binding on successor boards and not a governmental act. The matter was then remanded to the trial court for further proceedings. See County of Butler v. Local 585, Service Employees International Union, AFL-CIO, (County of Butler I), 158 Pa.Cmwlth. 519, 631 A.2d 1389 (1992).
Thereafter, discovery ensued in the trial court. The County then moved for summary judgment in both the declaratory judgment action and the equity action based upon Buckingham's failure to provide a performance bond or other guarantee of performance as required by Section 1802 of the County Code.[3] Buckingham argued that summary judgment was not appropriate because Section 1802 of the County Code was not applicable to the matter because the contract was for a lease and not for materials or labor; that the County Commissioners had waived the bond requirements which should be a question of fact for the jury to determine; and that the issue of whether the contract was valid must be sent to arbitration under the contract.
The trial court granted the County's motions for summary judgment in both actions because Buckingham did not post the performance bond as required by the contract and because there was no evidence that the County had waived the requirement, the Court decided there was no issue of material fact to be decided by a jury. The trial court held that because Buckingham did not post the required bond, the agreement was never activated because the bond was an express condition which must occur before the activation of the duties of the contract and the arbitration clause and, therefore, could not be enforced. It is from this order of the trial court that the parties appeal and cross-appeal.[4]
In its cross-appeal the County raises the issues of whether the agreement is null and void as ultra vires and whether the subject matter of the County's agreement, i.e., the operation of a county prison, involves a governmental function or a proprietary function? Buckingham asks whether the summary judgment action should be precluded by the demand for arbitration on the basis that there was a valid contract because the bond requirement was a condition subsequent effective only after the contract requirement for arbitration became operative; whether the County ever raised the issue of Buckingham's noncompliance with the contractual requirement that it post a bond; whether there existed a genuine issue of material fact regarding the posting of the bond which should be decided by an arbitrator or the court before summary judgment is rendered.[5]
*342 The threshold question is whether Washington Center was a prison. While Buckingham characterizes Washington Center as a rehabilitation center, it is, in reality, a minimum-security prison providing drug rehabilitation services. The contract requires the operator to adopt rules and regulations in order to operate. Among those rules and regulations are those found at 37 Pa.Code § 95.221 - 95.248 entitled County Jails. Those accepted into Washington Center are limited to individuals from inside or outside of the County who must have been convicted of crimes but who, nevertheless, may be eligible for drug and alcohol treatment. They are referred to in the contract as inmates or detainees (awaiting prosecution). Their time served in Washington Center is counted as part of their sentence. There is no provision that inmates may come and go as they please. There are provisions in the "Operators Bid Proposal" for a twenty-four hour watch by the institution's personnel (page 14) that all policies of the Butler County Prison will apply to Washington Center (page 14), that work is part of every inmate's rehabilitation and that the existing programs on release and pre-release would "be expanded and developed and new programs formulated by mutual agreements between Buckingham Security, LTD., and the Board of Commissioners." (Page 28.) While its purpose is to provide drug and alcohol treatment, it was, nonetheless, a prison. There was apparently no provision for the admission of non-convicted persons with a drug habit that were not in the prison system. Four (or more) walls confining inmates under such conditions do, in this case, a prison make for convicted criminals sentenced there, even if they receive special treatment to deal with their other problem with substance abuse.
Having determined that the facility is a prison, the next issue raised is whether the County's entering into the contract was an ultra vires act of the County Commissioners.[6]
This Court takes judicial notice that Butler County is a fourth class county. As such, the County is governed by the County Code[7] which provides for the establishment of a board of county commissioners who have the responsibility for, among many other things, the acquisition, construction, leasing of lands and buildings, including prisons[8] as well as for budgeting and levying taxes to provide funds for the operation of the County.[9] There is also established by statute a board of prison inspectors, commonly called the Prison Board, which is vested exclusively with "the safekeeping, discipline, and employment of prisoners and government and management" of any County prison or jail.[10] The first consideration is to determine *343 if the County Commissioners had any authority to unilaterally assume responsibility for the safekeeping, discipline and employment of inmates sentenced to the care of the County. If the County Commissioners acted without authority to do so, the contract would be ultra vires and it would not be necessary to decide whether or not the contract is for a governmental or a proprietary function or if the posting of a performance bond was a condition precedent or subsequent affecting the validity of the arbitration clause. Neither Buckingham nor the trial court address the statutory separation of responsibilities for the County prison. The operation of the prison is clearly in the exclusive hands of the Prison Board which has specific statutory direction on how to conduct itself including holding its meetings at the prison, appointing the warden, etc.[11] Nowhere is any authority cited, nor have we been able to find any statute, regulation or official action of the Prison Board in the record authorizing the County Commissioners to enter into a contract for the safekeeping, discipline, employment, maintenance and governance of prisoners sentenced to the County facilities, as well as "any expense connected with the prison" without the express approval and recommendation of the Prison Board.[12]
But, here, the bid specifications promulgated by the County Commissioners clearly stated a contrary intent for the governance and operation of the prison under the contract:
[I]t is the intention of the County of Butler to provide the necessary capital improvements for the operation of a minimum-security facility and to thereafter offer the operation of the facility to private enterprise through a bid process. The responsibility for the operation would remain with the Court and the County Commissioners, but the day-to-day operation would be under the control *344 of the successful bidder/operator.... (Emphasis added.)
(R.35.) In addition, although the contract incorporates by reference the policies of the existing Butler County Prison, there is nothing in the record showing that approval was ever obtained from the Prison Board by the County Commissioners to have the existing policies of the Prison Board for the existing maximum-security prison remain the same as for the minimum-security Washington Center. Further, there is no authority for the Prison Board to abdicate, or for the County Commissioners to usurp, any function statutorily delegated to the Prison Board, such as the release and pre-release programs for prisoners at Washington Center, which decisions would be made only by the County Commissioners and a private company rather than the Prison Board.
It is clear from the record that the Board of Commissioners never met with the majority members of the Prison Board in an official meeting and obtained the required approval to enter into the contract with Buckingham and to expend County funds for the safekeeping and other statutory duties entrusted to the Prison Board. (R.R. 13a, 247a.)
The Legislature, representing every class of county, left it to the discretion to the County Commissioners to establish, or not establish, local jails and prisons since every county may not desire, or be able, to afford a separate facility. It is clear, however, that while there is no statutory authority requiring that a County establish a prison, once county commissioners undertake to establish and fund its own, or a joint, facility for the safekeeping, discipline and employment of prisoners, they must establish a board of prison inspectors to govern and manage said institution and to approve the operation, maintenance and other expenses approved by the Prison Board in a fourth class county such as Butler. Although the three county commissioners are members of the Prison Board, they do not even comprise a majority, since the sheriff, the controller, the district attorney and the president judge are also members thereof. Sections 408 and 409 of the Prison Board Act, 61 P.S. §§ 408, 409. It is obvious that the Legislature never intended that the County Commissioners should operate the prison since they relegated them to a minority, albeit substantial, role.
The statutory authority to provide for the safekeeping, discipline and employment of prisoners is, therefore, clearly vested in the Butler County Board of Prison Inspectors (Prison Board) who were never given an opportunity to carry out their statutory function. Even though the bid specifications show that the contracted operation would be under the sole control of the county commissioners and the Court (which could be a majority at a meeting of the Prison Board), they still have no authority outside of an official meeting to enter into such a contract without a prior affirmative recommendation by a majority vote of the Prison Board, including the other members of the Board in accordance with Section 409 of the Prison Board Act, 61 P.S. § 409. Otherwise, the statutory scheme for the case of prisoners sentenced to the County's care could be circumvented by the Commissioners who could operate the prison without the individual input and oversight needed from the president judge (or his designee), sheriff, controller and district attorney.
The contract is the result of an ultra vires act because it was not entered into under the authority of and with the approval of the Prison Board. The remaining issues do not, therefore, need to be addressed.[13]
*345 Accordingly, the order of the trial court granting the County's motion for summary judgment is affirmed, albeit for different reasons.[14]
ORDER
AND NOW, this 7th day of October, 1999, the order of the Court of Common Pleas of Butler County at Nos. 88-088 and 88-012, dated December 30, 1997, granting the summary judgment motion of the County of Butler is affirmed.
Judge KELLEY concurs in the result only.
NOTES
[1] There is no indication in the reproduced record whether Buckingham actually began performance of the contract by receiving admissions of clients into the Washington Center.
[2] The arbitration clause provides in relevant part:
[a]ll claims, disputes and other matters in question rising out of, or relating to, this bid, offer, acceptance or resulting contract or performance under the terms of this contract, express or implied, shall be conducted in accordance with the Rules of the American Arbitration Association currently in effect for a contract dispute unless the parties mutually agree otherwise in writing.
[3] Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1802.
[4] The County filed a cross-appeal in this case of the November 27, 1991 order of the trial court to preserve the issues determined against it that the County's action was proprietary, rather than governmental, and was also ultra vires. We note that the County prevailed before the trial court in that they were successful in their motion for summary judgment. See Kriner v. Barbour, 145 Pa. Cmwlth. 64, 602 A.2d 450 (1991)(cross appellants were successful before the trial court; therefore, cross appeal was quashed because of cross appellants' lack of standing to appeal). However, Buckingham has not raised the issue of a non-aggrieved party's appeal in its brief to this Court. Because standing is not jurisdictional under Pennsylvania law, if there was any such issue, it has been waived and this Court will not raise it sua sponte. See Statewide Building Maintenance, Inc. v. Pennsylvania Convention Center Authority, 160 Pa.Cmwlth. 544, 635 A.2d 691 (1993)(question of standing is not an issue of subject matter jurisdiction and court will not raise it sua sponte).
[5] Our review in a summary judgment case is based upon Pa. R.C.P. No. 1035.2. Summary judgment is only proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. A grant of summary judgment will be reversed only where there has been an error of law or a manifest abuse of discretion. When reviewing an order granting summary judgment, we are obliged to read the record in the light most favorable to the non-moving party and resolve all doubt against the movant. Moscatiello Construction Co. v. Pittsburgh Water and Sewer Authority, 167 Pa. Cmwlth. 508, 648 A.2d 1249 (1994).
[6] An ultra vires action is one which is performed without authority to act, beyond the scope or in excess of the legal powers authorized. Black's Law Dictionary, Sixth Edition.
[7] Act of August 9, 1955, P.L. 323, §§ 101-3100, as amended; 16 P.S. §§ 101-3100.
[8] Sections 2305, 2306, 2307 and 2315 of the County Code, 16 P.S. §§ 2305, 2306, 2307 and 2315.
[9] Section 1783 of the County Code, 16 P.S. § 1783.
[10] Section 408 of the Prison Board Act, Act of January 25, 1966, P.L. (1965) 1577, as amended, 61 P.S. § 408, provides:
§ 408. Board of inspectors, counties of third to eighth classes; composition; powers and duties; sheriff's responsibility
(a)(1) The persons now holding the following offices, and their successors, in all counties of this Commonwealth of the third, fourth, and fifth classes, shall compose a board, to be known by the name and style of inspectors of the jail or county prisons, to wit: The president judge of the court of common pleas or a judge designated by him, the district attorney, the sheriff, the controller, and the commissioners of each of said counties; in which board, and the officers appointed by it, the safe-keeping, discipline and employment of prisoners, and the government and management of said institution, shall be exclusively vested; and that the present responsibility of the sheriff of each of said counties in regard to the safe-keeping of the prisoners shall cease and determine on their committal to said prison.... (Emphasis added.)
[11] Section 409 of the Prison Board Act, 61 P.S. § 409 provides:
§ 409. Quorum; meetings; minutes, rules and regulations, warden, deputies, assistants, keepers; appointment and salaries
That, within thirty days after this act shall become effective in any county, the above-named board shall meet and organize by the election of a president and secretary. A majority of the members of said board shall constitute a quorum for the transaction of business, and all actions of said board must be by the approval of a majority of all the members of said board. The board shall meet monthly, or oftener if required, and keep regular minutes of their proceedings in a book, to be filed with the financial records of each of said counties, and shall make such rules and regulations for the government and management of the prison, and the safe-keeping, discipline, and employment of the prisoners, as may be deemed necessary. Such meetings shall be held at the prison no less than quarterly. The board shall appoint a warden of the prison. The warden, subject to the approval of the board, may appoint such deputy or deputies, assistant or assistants, keeper or keepers, as may be required in the taking care of the prison. The number and compensation of such deputies, assistants, or keepers shall be fixed by the salary board. (Emphasis added.)
[12] Section 410 of the Prison Board Act, 61 P.S. § 410 states:
§ 410. Expenditures for prisons and prisoners; contracts
That all the expenditures required for the support and maintenance of prisoners, the repairs and improvement of said prison, shall be paid from the county treasury by warrants drawn, in the mode now prescribed by law, on the regular appropriation for the purpose, but no warrant shall be certified by the controller for any expense connected with the prison unless on vouchers approved by a majority of said board and endorsed by the president and secretary thereof.... (Emphasis added.)
[13] We also note that in Delaware County, et al. v. Delaware County Prison Employees Independent Union, 552 Pa. 184, 713 A.2d 1135 (1998), the Pennsylvania Supreme Court found that based on the collective bargaining agreement the county's contracting with an outside private entity, Wackenhut Corrections Corporation, to provide corrections officers services to the Delaware County Prison, was not an unfair labor practice according to the collective bargaining agreement. The issue of whether or not this contracting out was agreed to by the Prison Board, was ultra vires or a governmental or proprietary function of county government was not raised or addressed anywhere in the case.
[14] An appellate court may affirm the trial court which reached the proper result even if the reasoning is different. Mulberry Market v. City of Philadelphia, 735 A.2d 761 (Pa. Cmwlth.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312899/ | SHARON JOHNSON COLEMAN, United States District Court Judge
Plaintiff Jacqueline Spratt filed a five-count Amended Complaint against defendant Bellwood Public Library, alleging unlawful retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, et seq. , and the Illinois Whistleblower Act ("IWA"), 740 Ill. Comp. Stat. § 174/1, et seq. Bellwood moves to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons outlined below, Bellwood's motion [17] is denied.
Background
Defendant Bellwood Public Library employed plaintiff Jacqueline Spratt from September 23, 1993 until April 2, 2018. Spratt served as the Library Director from 2014 until her employment ended. She reported to Bellwood's Board of Trustees and attended their meetings.
*786At the March 2016 Board meeting, the Board approved Spratt's request to remodel two public restrooms and expanded the scope of the remodeling project. The Board sought to hire Myron Adams of DK Environmental Services as a project consultant without soliciting bids, despite the Illinois Local Library Act requirement to advertise for bids for remodeling in excess of $ 25,000. 75 ILCS § 5/5-5. In June 2016, the Board hired Stuttley Group, LLC to represent the Board in response to a complaint that the Board had been operating in violation of the Illinois Open Meetings Act without seeking or allowing other bids. Spratt sought to raise this issue, and Board member Mary Clements directed Spratt to remove reference to attorneys' fees from the public Board meeting agenda and warned Spratt that she would be insubordinate if she discussed them at the meeting. Throughout 2016, Spratt alleges that the Board repeatedly attempted to shift all blame for public complaints to her.
The March 2017 Board meeting was not posted publicly for the required 48 hours, so Spratt opposed the Board's selection of Gwendolyn Reese as a new Board member during the meeting. Spratt further opposed the appointment because Board member Sharon Tharpe was ineligible to hold elected municipal office because she had been convicted on felony arson with intent to defraud an insurance company. Following the meeting, Spratt sent an email indicating that Tharpe could not serve as a Board member because of her conviction. The following year, Bellwood retained the Del Galdo Law Group, despite having multiple Board members who had not been appointed pursuant to the Illinois Municipal Code. Spratt refused to issue payment on invoices from the Stuttley Group or the Del Galdo Law Group, which both had been retained without lawful votes from the Board. Spratt alleges that in the spring and early summer of 2017, Board member Clements continued to harass Spratt and undermine her ability to perform her duties.
Spratt filed a Charge of Discrimination with the EEOC alleging discrimination in violation of the ADEA, which she emailed a copy of to the Board on June 15, 2017. Several members of the Board convened a "special meeting" on June 29, 2017 to decide if they would discipline or terminate Spratt. On June 30, 2017, Spratt was informed that she had been placed on indefinite administrative leave, pending investigation to determine if disciplinary action against her was warranted.
Spratt alleges that she experienced further and continuous harassment by Bellwood and its Board members from July 2017 through April 2018, including through the following conduct:
- Attempting to replace the locks on Spratt's office;
- Revoking Spratt's authority to fill positions at Bellwood, even though personnel changes were within Spratt's discretion pursuant to the Illinois Local Library Act;
- Filing a temporary restraining order against Spratt to prohibit her from going to work at Bellwood, which the court struck on July 7, 2017 because the Board's decision had been made without a quorum and lacked authority;
- Requiring that Spratt obtain a Master of Library Science degree within the year and stating that Spratt's job remained contingent on this;
- Ordering Spratt to remove a write-up for subordination from the Bellwood Business Manager's employee file that Spratt had issued;
- Falsely accusing Spratt of stealing;
- Initially denying Spratt a raise and then granting her a 1% raise beyond the standard 3% increase; and *787- Issuing Spratt's first ever performance evaluation, which was negative and included many unsubstantiated and false criticisms.
Spratt resumed taking classes toward her Master of Library Science degree, but it was impossible for her to achieve the degree within the year. On March 29, 2018, Spratt announced her resignation, to be effective on April 6, 2018, which she alleges amounted to constructive discharge. On April 2, 2018, Bellwood terminated her employment, effective immediately, and the police escorted Spratt from the premises and changed the locks on her office.
Spratt then filed suit on September 26, 2018, alleging that Bellwood retaliated against her for filing an age discrimination charge with the EEOC in violation of the ADEA and retaliated against her based on court and government agency disclosures, refusals, and public corruption in violation of the IWA. Spratt seeks reinstatement of employment, back pay, benefits, prejudgment interest, compensatory damages, equitable damages, and attorneys' fees and costs for the alleged violations. Bellwood has moved to dismiss the Amended Complaint for failure to state a cause of action upon which relief can be granted.
Legal Standard
In ruling on a Rule 12(b)(6) motion to dismiss, the Court accepts all of the plaintiff's allegations as true and views them in the light most favorable to the plaintiff. Lavalais v. Vill. of Melrose Park , 734 F.3d 629, 632 (7th Cir. 2013). To survive a motion to dismiss, a complaint must contain allegations that "state a claim to relief that is plausible on its face." Id. at 632 (internal quotations omitted). The plaintiff does not need to plead particularized facts, but the allegations in the complaint must be sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Threadbare recitals of the elements of a cause of action and allegations that are merely legal conclusions are not sufficient to survive a motion to dismiss. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Discussion
Spratt alleges that Bellwood retaliated against her for filing an EEOC complaint. Bellwood contends that Spratt cannot establish a claim for retaliation under the ADEA because Spratt cannot establish a materially adverse action taken against her or the requisite causal connection. The ADEA prohibits an employer from retaliating against an employee for complaining about age discrimination, which includes filing a complaint based on age discrimination with the EEOC. 29 U.S.C. § 623(d) ; see also Tyburski v. City of Chicago , No. 16 C 09228, 2018 WL 3970150, at *9 (N.D. Ill. Aug. 20, 2018) (Lee, J.). To state a claim for retaliation under the ADEA, Spratt must allege that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between her protected activity and the adverse action. Lauth v. Covance, Inc. , 863 F.3d 708, 716 (7th Cir. 2017).
Spratt's Amended Complaint sufficiently alleges each element of a retaliation claim under the ADEA. Spratt alleges that she engaged in protected activity, as she filed an EEOC charge that alleged age discrimination that she sent to the Board. Next, she alleges that she suffered a series of adverse employment actions, including putting her on administrative leave, taking legal action against her, changing the educational requirements for her position, constructively discharging her, and terminating her. "An action is materially adverse if it might have 'dissuaded a reasonable *788worker from making or supporting a charge of discrimination.' " Kuhn v. United Airlines, Inc. , 640 F. App'x 534, 538 (7th Cir. 2016) (quoting Burlington N. & Santa Fe Ry. v. White , 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ). Spratt's allegations that she was constructively discharged and then Bellwood terminated before the effective date of her resignation are not inconsistent, as Bellwood contends because Spratt resigned with an effective date later than the date Bellwood terminated her employment. Moreover, Spratt's allegations that she was placed on administrative leave and endured months of adverse workplace conduct following her EEOC charge is sufficient to deter a reasonable employee from engaging in future protected activity. See id. at 538.
Spratt further alleges a causal link between her protected activity and the adverse actions. She alleges that within two weeks of receiving her EEOC charge, Bellwood began engaging in a pattern of retaliatory conduct over nine months intended to harass her and cause her emotional distress that culminated in Spratt's constructive discharge. Bellwood has pointed to no case law suggesting that this course of conduct is not sufficient to state a claim at the motion to dismiss junction. The Court finds that these allegations sufficiently allege a causal link. See Tamayo v. Blagojevich , 526 F.3d 1074, 1085 (7th Cir. 2008) (finding plaintiff stated a plausible claim where she alleged since she began to complain of sex discrimination and filed two EEOC charges, she was subjected to adverse employment actions by the defendants in retaliation); Kirley v. Bd. of Educ. of Maine Twp. High Sch. Dist. 207 , No. 13 C 1706, 2013 WL 6730885, at *8 (N.D. Ill. Dec. 20, 2013) (Holderman, J.) (denying motion to dismiss retaliation under ADEA where plaintiff alleged her employer was aware she intended to file a charge of discrimination with the EEOC and then plaintiff was removed from a coaching position and subject to investigative meetings). Bellwood's motion to dismiss Count V is denied.
Next, Bellwood contends that because Spratt failed to adequately plead constructive discharge, she did not suffer any adverse action and her four Illinois Whistleblower Act claims fail. Spratt responds that she properly alleged she was constructively discharged and that she pleaded multiple other forms of adverse actions that amount to actionable retaliation. Further, Spratt contends that she has stated claims under the IWA, not for the common law tort of retaliatory discharge, and as such is entitled to greater protections than the common law tort claim. Under the IWA, an employer may not retaliate against an employee: who discloses certain information to a court, government agency, or law enforcement agency; for refusing to participate in certain illegal activities; or with an act materially adverse to a reasonable employee because the employee disclosed public corruption. 740 ILCS 174/15(a) -15(b); 740 ILCS 174/20 ; 740 ILCS 174/20.1. An employee can sue for "all relief necessary to make the employee whole," including reinstatement, back pay, and damages. 740 ILCS 174/30. Spratt asserts a claim under the IWA on each of these grounds.
Bellwood submits that all of Spratt's alleged violations of the IWA are time barred by the Illinois Tort Immunity Act ("TIA") because they are based on events that occurred prior to the one-year statute of limitations. Spratt responds that TIA does not apply because the Act does not immunize local government employees from liability for retaliatory discharge. Spratt contends that even if TIA applies here, Bellwood's argument fails. Spratt filed suit six months after her constructive *789discharge and termination, so all of her IWA claims were filed within the one-year window.
The Court finds that Spratt's claims are not time barred by TIA because the Illinois Supreme Court has held that TIA immunizes government entities from liability for torts committed by employees, but retaliatory discharge claims are the result of wrongdoing by an employer. See Smith v. Waukegan Park District , 231 Ill.2d 111, 117, 324 Ill.Dec. 446, 896 N.E.2d 232 (2008) ; see also Zelman v. Hinsdale Twp. High Sch. Dist. 86 , No. 10 C 00154, 2010 WL 4684039, at *2 (N.D. Ill. Nov. 12, 2010) (Coleman, J.). However, even if TIA did apply to Spratt's claims, TIA would not require dismissal of Spratt's IWA claims because Spratt resigned on March 29, 2018, which is the date that the limitations period begins to run for a claim based on her constructive discharge. Green v. Brennan , --- U.S. ----, 136 S.Ct. 1769, 1777, 195 L.Ed.2d 44 (2016) ; Stringer v. City of Lake Forest , No. 16 C 8991, 2017 WL 75741, at *1 (N.D. Ill. Jan. 7, 2017) (Kennelly, J.). Moreover, Spratt alleges a series of retaliatory actions that took place in the months leading up to her constructive discharge. At this stage, those allegations are sufficient to state a timely claim for retaliation.
Bellwood further asserts that Spratt's IWA claims fail because she has not alleged acts that could reasonably be considered to be violations of law. Spratt responds that she alleged her reasonable beliefs regarding violations of the law, actual refusals to participate in unlawful behavior, and disclosure of public corruption. Counts I and II arise under section 15 of the IWA, so Spratt must show that she had reasonable cause to believe that she reported a violation of a State or federal law, rule, or regulation. 740 ILCS § 174/15(a) - (b).
For Count I, Spratt alleges that she repeatedly disclosed to government or law enforcement agencies, including: the Board of Trustees of the Library what she reasonably believed were violations of the Illinois Open Meetings Act, the Illinois Municipal Code, the Illinois Local Library Act, and the misuse of public funds; to the Reaching Across Illinois Library Systems violations of the Local Library Act and misuse of public funds; to the Illinois Attorney General's Office violations of the Open Meetings Act; and to the police violations of the Open Meetings Act and Illinois Municipal Code. For example, in April 2017 members of the Illinois Attorney General's Office contacted Spratt regarding a complaint filed concerning Bellwood's attempt to unlawfully appoint Reese to the Board. Spratt answered their questions and reported her concerns regarding Bellwood's violations of the Open Meetings Act by appointing Reese without a quorum of the Board. Likewise, on July 1, 2017, Spratt informed the police that the June 29, 2017 Board meeting was held in violation of the Open Meetings Act because notice of the meeting was not posted for 48 hours prior to the meeting. The police refused to change the locks to Spratt's office without a court order. Accordingly, Spratt alleges reasonable cause to believe that she reported various violation of State laws and codes to government and law enforcement agencies.
Related to Count II, Spratt alleges that on July 7-8, 2017 she reported to the Circuit Court of Cook County what she believed to be violations of the Illinois Open Meetings Act and the Illinois Municipal Code. She alleges that in response the court found that a seat on the Board was invalid and decisions made at the June 29, 2017 Board meeting lacked authority. Consequently, her alleged disclosures to the court do, in fact, implicate violations of *790Illinois law for this stage. Count II states a claim.
Next, Bellwood contends that Spratt's allegations that she participated in an activity regarding the misuse of public funds cannot support a claim because a plaintiff must actively refuse not to participate in an illegal activity. Bellwood further argues that Spratt's claim fails because she did not allege that she reported the alleged excessive fees to anyone. Spratt responds that Count III alleges a claim because she refused to issue payment not approved by the Board in compliance with the Illinois Municipal Code.
Section 20 of the IWA requires that an employee refuse to participate in an activity that would result in a violation of State or federal law. 740 ILCS § 174/20. Contrary to Bellwood's argument, Section 20 does not require that the employee report the alleged violation to a specific entity. Spratt alleges that she was ordered to, but refused on multiple occasions to issue payment on invoices from Stuttley Group and Del Galdo Law Group because they were retained without a lawful vote from the Board. Spratt further alleges that Stuttley Group was retained without seeking bids from other attorneys and Del Galdo Law Group was retained at a Board meeting without a quorum of lawful members of the Board. Because Spratt alleges that she refused to issue payment, she did not participate in an activity that would have violated the Illinois Municipal Code. See Sardiga v. N. Tr. Co. , 409 Ill. App. 3d 56, 62, 350 Ill.Dec. 372, 948 N.E.2d 652 (1st Dist. 2011) (explaining that refusal requires the denial or rejection of something that is demanded); U.S. ex rel. Kennedy v. Aventis Pharm., Inc. , No. 03 C 2750, 2008 WL 4371323, at *5 (N.D. Ill. Feb. 11, 2008) (Kennelly, J.) ("[T]here is no requirement that a plaintiff in an IWA retaliation case plead with particularity exactly what illegal conduct she refused to participate in."); contra Collins v. Bartlett Park Dist. , 2013 IL App (2d) 130006, ¶ 29, 375 Ill.Dec. 510, 997 N.E.2d 821 (2d Dist. 2013) (dismissing IWA claim where plaintiff failed to allege that he actually refused to participate in an illegal activity). Bellwood's motion to deny Count III is denied.
Finally, Bellwood makes no arguments specific to Spratt's Count IV concerning reporting of public corruption. Still, Spratt properly alleges a claim under Section 20.1 of the IWA for the same reasons as Counts I and II. Bellwood's motion to deny Count IV is denied.
Conclusion
Based on the foregoing, Bellwood's Motion to Dismiss [17] is denied.
IT IS SO ORDERED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2590290/ | 212 P.3d 1039 (2009)
STATE
v.
CARNALL.
No. 99659.
Court of Appeals of Kansas.
August 7, 2009.
Decision without published opinion Reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/895736/ | 556 N.W.2d 56 (1996)
Stephen J. LUCIER, Claimant and Appellant,
v.
NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and
Housing Industry Training, Inc., Respondent.
Civil No. 960082.
Supreme Court of North Dakota.
November 13, 1996.
Opinion Denying Rehearing December 4, 1996.
*57 Arnold V. Fleck (argued), of Wheeler Wolf, Bismarck, for claimant and appellant. Appearance by Stephen J. Lucier.
Lawrence A. Dopson (argued), Special Assistant Attorney General, Bismarck, for appellee.
MESCHKE, Justice.
Stephen J. Lucier appeals from a judgment affirming a Workers Compensation Bureau order denying him further disability and rehabilitation benefits because a vocational assessment showed he had a reasonable opportunity for substantial gainful employment at an alternate occupation. We affirm.
While employed as a personal care attendant with Housing Industry Training, Inc. (HIT) in Mandan, Lucier had a compensable back injury in August 1992 and got disability and rehabilitation benefits from the Bureau. Although he remained employed at the same wage by HIT at a modified position, HIT did not offer Lucier enough hours to meet the earning requirements of NDCC Chapter 65-05.1. The Bureau hired Professional Rehabilitation Management, Inc. (PRM) to evaluate other employment options for him. PRM prepared a Vocational Consultant's Report Assessment/Plan dated October 15, 1993, showing that, under NDCC 65-05.1-04(d), Lucier had the capability of returning to a modified or alternative occupation with any employer.
The plan detailed PRM's endeavors to return Lucier to work. Lucier's physical therapist reported *58 lifting will be tolerated occasionally to 50 pounds but should be limited to eye level only, with frequent lifts to 35 pounds from floor level to overhead height. Carrying tolerance was demonstrated to a maximum of 35 pounds. Forward bending and stooping should be avoided. It was noted that pushing could be tolerated up to 30 pounds and pulling could be tolerated up to 25 pounds.
Applying the United States Department of Labor Physical Demands Characteristics, this functional capacity assessment placed Lucier in the medium category of work. PRM determined that Lucier could tolerate a full eight-hour day of work if allowed to change posture on a frequent basis. After reviewing Lucier's prior employment as a warehouse worker and security guard, and after completing an analysis of his transferable skills, PRM concluded Lucier had the functional capacity and transferable skills for employment as a warehouse worker, security guard, or a sales route or light truck driver. Each of these positions is classified in the Dictionary of Occupational Titles as requiring light to medium physical demands. Lucier's treating physician certified that Lucier was capable of performing the work in these positions.
Through the use of the North Dakota B-96 Report of the North Dakota Job Order Index, PRM was satisfied that there were a substantial number of openings for each position in North Dakota, as well as in the Bismarck-Mandan region. PRM reviewed the North Dakota Wage and Benefit Survey to assess anticipated wages for those vocations. The rehabilitation coordinator also called employers in the selected job areas to learn the salaries offered for those positions. PRM concluded a warehouse worker could earn $6.40 per hour, a security guard $6.25 per hour, and a light truck driver $6.91 per hour. Lucier had been earning $5.75 per hour at HIT. The parties stipulated that, from January 15, 1992 until Lucier was injured in August 1992, his average weekly wage was $238. This was less than the $279 that represented 75 percent of the average weekly wage in the state on the date of the rehabilitation consultant's report. For a 40-hour work week at any of the proposed vocations, PRM calculated Lucier could earn between $250 and $276 per week.
The Bureau adopted PRM's plan and, on December 3, 1993, notified Lucier of its intention to discontinue his disability benefits effective December 16 because he had the transferable skills to obtain employment. On March 7, 1994, the Bureau issued its order denying disability and rehabilitation benefits after December 16, 1993, finding that Lucier was able to pursue employment as a light truck driver, sales route driver, security guard, or warehouse worker at a wage comparable to his pre-injury earnings and that he thus was no longer entitled to disability benefits.
Lucier requested a rehearing, alleging his rehabilitation plan was inadequate. The administrative hearing was rescheduled several times, and finally held June 8, 1995. The hearing officer found the rehabilitation plan "adequate" under NDCC Chapter 65-05.1, determining the "greater weight of the evidence indicates that considering Lucier's education, experience, skills, and medical limitations, he is able to pursue the three vocational goals identified in the October 15, 1993, rehabilitation planlight truck driver, security guard, and warehouse worker." The hearing officer found Lucier's pre-injury earnings were properly calculated at $238 per week and that "[a]s a result of his transferable skills, he is able to perform competitive gainful employment and retains an earnings capacity equivalent to his preinjury earnings capacity." The hearing officer found that "a return to work in a related occupation within the statewide labor market suited to Lucier's education, experience, and marketable skills is feasible and appropriate because his preinjury wage can be met" and that "there is employment available in the statewide job market suited to Lucier's education, experience, and marketable skills, and within his medical limitations."
The Bureau adopted the hearing officer's findings and conclusions, and it adhered to its earlier order denying Lucier further disability and rehabilitation benefits. On appeal, the district court affirmed the Bureau's *59 denial of further benefits. Lucier appealed again.
I
Our standard of review on appeal from a district court judgment on the decision of the Bureau is well settled. We review the Bureau's decision, not the decision of the district court, and we affirm the Bureau's decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Otto v. N.D. Workers Comp. Bureau, 533 N.W.2d 703, 706 (N.D.1995); NDCC 28-32-19. As we said in Ollom v. North Dakota Workers Compensation Bureau, 529 N.W.2d 876, 878 (N.D.1995), in evaluating the Bureau's findings of fact, we do not make independent findings or substitute our judgment for that of the Bureau, but we determine only whether the Bureau reasonably reached its factual conclusions from the weight of the evidence on the entire record.
II
The primary question is whether the vocational consultant's report gave Lucier a reasonable opportunity for substantial gainful employment in the state under NDCC 65-05.1-01(3). Part of that statute, at the time of Lucier's injury and on the date of the plan, directed:
It is the goal of vocational rehabilitation to return the disabled employee to substantial gainful employment with a minimum of retraining, as soon as possible after an injury occurs. "Substantial gainful employment" means bona fide work, for remuneration, which is reasonably attainable in light of the individual's injury, medical limitations, age, education, previous occupation, experience, and transferable skills, and which offers an opportunity to restore the employee as soon as practical and as nearly as possible to the employee's average weekly earnings at the time of injury, or to seventy-five percent of the average weekly wage in this state on the date the rehabilitation consultant's report is issued under section 65-05.1-02.1, whichever is less. The purpose of defining substantial gainful employment in terms of earnings is to determine the first appropriate priority option under subsection 4 of section 65-05.1-04 which meets this income test.
This vocational rehabilitation legislation was designed to return an injured employee to substantial gainful employment as quickly and with as little retraining as possible. Baldock v. N.D. Workers Comp. Bureau, 554 N.W.2d 441, 443 (N.D.1996). In enacting this statutory scheme, the legislature did not require the complete rehabilitation of a worker to his pre-injury earning capacity before getting him back to work. See Thompson v. N.D. Workers' Comp. Bureau, 490 N.W.2d 248, 254-255 (N.D.1992); Smith v. N.D. Workers Comp. Bureau, 447 N.W.2d 250, 254 (N.D.1989). We recognized in Held v. North Dakota Workers Compensation Bureau, 540 N.W.2d 166, 170 (N.D. 1995), "[j]ust as a rehabilitation plan cannot guarantee a job, neither can it guarantee a predetermined weekly wage." See also Maginn v. N.D. Workers Comp. Bureau, 550 N.W.2d 412, 416 (N.D.1996). Because "substantial gainful employment" might not be reached immediately in a rehabilitation program, the legislature has authorized payment of partial disability benefits for a certain period of time, rather than allowing the first lower earnings to invalidate the plan from the start. See Held; NDCC 65-05.1-06.1(2)(i). We review Lucier's challenges to his rehabilitation plan accordingly.
A
Lucier argues the Bureau's findings that he is capable of performing the jobs identified in the rehabilitation plan and that those jobs are available in the state in sufficient numbers to give him a reasonable opportunity for employment are not supported by the greater weight of the evidence. We conclude the evidence reasonably supported the findings.
The vocational consultant testified she relied on the North Dakota B-96 Report, the Job Order Index, and telephone calls to employers in the region before deciding that the proposed jobs offered a reasonable opportunity *60 for employment. The B-96 report showed 439 job openings for warehouse workers in the state, with 120 openings in the Bismarck-Mandan region; 128 job openings for light truck drivers in the state, with 47 openings in the Bismarck-Mandan region; and 645 job openings for security guards in the state, with 28 openings in the Bismarck-Mandan region. Lucier does not quarrel with his placement in the light to medium work category or with the selected vocations within that category.
Rather, Lucier argues his experience in unsuccessfully applying for jobs in those planned vocations proves area employers actually require physical demands exceeding his limitations. Lucier insists his treating physician's approval of those vocations is irrelevant because it is based on the inaccuracy of the classifications in the Dictionary of Occupational Titles when applied to those positions in this locale. He claims the vocational consultant had a duty to personally survey the physical demand characteristics of potential employers in the region to determine if they actually require physical demands in excess of his limitations.
The question for the hearing officer, and for this court, is not whether the vocational consultant's plan would be eventually successful. Rather, the question is whether the plan, at the time, gave Lucier a reasonable opportunity to obtain substantial gainful employment in the state. Because some of those jobs Lucier sought or applied for may have required occasional lifting beyond the medium classification did not make the plan unfeasible from the beginning. Although the vocational consultant admitted that a job classified as medium level work in the Dictionary of Occupational Titles does not mean all work for all of the employers in that category is within that classified level, its medium level classification is strong evidence that most employers in the category do not require more than medium level work. Lucier, through his documentation at the hearing of approximately 50 unsuccessful job contacts, has not proved that most of the hundreds of job openings available in the selected vocations would require physical demands beyond his limitations.
If we accepted Lucier's argument, a vocational consultant's role under the law would become substantially equivalent to that of a private employment agent. But neither a rehabilitation plan nor a vocational consultant can guarantee a claimant a job or a particular wage. See Maginn; Held. We conclude that the Bureau reasonably found from the weight of the evidence that the rehabilitation plan, when it was prepared, gave Lucier a reasonable opportunity to obtain substantial gainful employment in the state.
B
Lucier argues the Bureau erred in failing to include the $180 monthly premium HIT was paying for his health insurance in calculating his "average weekly earnings at the time of injury" under NDCC 65-05.1-01(3). According to Lucier, including his employer's payment for his health insurance would increase his average weekly earnings to at least $281, more than the average weekly wage of $279 in the state when his rehabilitation plan was set. Because the vocational consultant's plan showed Lucier's employment opportunities would pay less than the $279 average weekly wage required, Lucier argues the rehabilitation plan failed at the outset. We disagree.
Generally, as Wills v. Schroeder Aviation, Inc., 390 N.W.2d 544, 546 (N.D. 1986), explained, we construe statutory language "so that an ordinary person reading it would get from it the usual, accepted meaning." And, as City of Fargo v. Stutlien, 505 N.W.2d 738, 742 (N.D.1993), explained, we harmonize statutes on the same subject, if possible to give full force and effect to the legislative intent.
The phrase, "average weekly earnings," is not statutorily defined in the workers compensation law. Lucier is correct that, generally, the word, "earnings," is more comprehensive than the word "wages," and that "earnings" include not only money paid an employee but any other pecuniary benefit to the employee from the contract of employment. See, e.g., First Nat'l Bank of Wilkes-Barre v. Barnum, 160 F. 245, 247 (M.D.Pa. *61 1908); B.F. Goodrich Rubber Co. v. Yellow Taxi Corporation, 154 Misc. 440, 277 N.Y.S. 468, 470 (1935). However, the word "earnings" will be interpreted synonymously to the word "wages" in a statute if that meaning was intended by the legislature. See Berlin Iron Bridge Co. v. Connecticut River Banking Co., 76 Conn. 477, 57 A. 275, 276 (1904). For NDCC 65-05.1-01(3), we believe the legislature unambiguously intended "earnings" and "wages" to be interpreted synonymously.
The problem with Lucier's argument is that, at the time of his injury, the legislature had generally defined "wages" as expansively as he would have us interpret "earnings" in this case: "`Wages' means all remuneration payable in money or a substitute for money for services rendered by an employee. "NDCC 65-01-02(29) (1991) (Emphasis added).[1] Yet, the legislature specifically directed that this broad definition of "wages" does not include "[t]he cash value of health, medical, life, or other insurance benefits or retirement benefits." NDCC 65-01-02(29)(b)(2) (1991). Statutorily defining "wages" expansively to include the broader concept of "earnings" indicates that the legislature saw no significant difference in the meaning of the terms. See also Testimony of Dean J. Haas before the Senate Industry, Business, and Labor Committee on House Bill 1191, March 8, 1989, at p. 2 (describing substantial gainful employment under the statute as meaning "the employment must return the worker to his pre-injury wage, or to the average weekly wage in this State, whichever is less") (Emphasis added). Because the legislature defined "wages" to mean "earnings," while excluding health insurance benefits from his wages, it would be incongruous to include Lucier's health insurance benefits in his "average weekly earnings at the time of injury."
While Lucier's argument for including employer contributions to health or medical insurance merits legislative consideration, see 2 A. Larson, The Law of Workmen's Compensation § 60.12 (1996), the legislature has clearly elected to exclude health insurance benefits under NDCC 65-05.1-01(3) in calculating "average weekly earnings." We conclude the Bureau did not err in refusing to include Lucier's $180 in employer-paid health insurance premiums in its calculations.
C
Lucier argues the Bureau erred in failing to limit its calculation of his "average weekly earnings at the time of injury" to the hours he worked in the month before his work injury. We disagree.
The Bureau determined that "Lucier's average weekly wage or earnings at the time of the injury ... was properly calculated" at $238 under part of NDCC 65-01-02(4) (1993):
"Average weekly wage" means the weekly wages the employee was receiving from all employments at the time of injury. The average weekly wage as determined under this section must be rounded to the nearest dollar. In cases where the employee's wages are not fixed by the week, they must be determined by using the first applicable formula from the schedule below:
* * * * * *
f. If there are special circumstances under which the average weekly wages cannot be reasonably and fairly determined by applying subdivisions a through e, an average weekly wage may be computed by dividing the aggregate wages during the twelve months prior to the injury by fifty-two weeks, or the number of weeks actually worked, whichever is less.
Under this subdivision (f), Lucier asserts that the Bureau improperly and unfairly computed his average weekly wage.
The Bureau computed Lucier's wage, not by averaging the full 52 weeks before his injury, but by averaging the 30 weeks from January 15, 1992 (when he had received his *62 last raise) to August 15, 1992 (just before his injury). This computation increased Lucier's average weekly wage to more than an average for the entire 52-week period. Lucier proposed that the Bureau average only the wages he earned during the four weeks before the injury because his hours had increased during those weeks, and because he testified his supervisor told him he would continue to work increased hours.
Whether Lucier would have continued to work hours equivalent to those worked during the four weeks before his injury is simply speculation. Lucier testified his increased hours during those last four weeks came from his working with two HIT clients whom other employees would not assist. Whether those clients would have remained with HIT or whether other HIT employees eventually would have assisted in their care was unpredictable. Lucier had no contractual commitment from HIT that he would work any set number of hours in the future, nor did HIT furnish any information on the subject at the hearing. Indeed, Lucier's work history with HIT showed fluctuations in wages earned, ranging from $211.84 per week to $312.90 per week during the 30 weeks used for the calculation by the Bureau.
The formula in subsection (f) of NDCC 65-01-02(4) was apparently intended to smooth out fluctuations in wages caused by changing circumstances in a claimant's employment. Beyond doubt, the Bureau's use of the 30-week period, rather than the 52-week period designated by the statute, benefited Lucier. We conclude that the Bureau did not err in refusing to base Lucier's average weekly wage on what he earned only during the four-week period just before his injury.
III
We conclude the Bureau's findings are reasonably supported by a preponderance of the evidence, its conclusions are supported by the findings, its decision is supported by the conclusions, and its decision is in accordance with the law. We affirm the judgment of the district court affirming the Bureau order.
VANDE WALLE, C.J., and SANDSTROM, NEUMANN and MARING, JJ., concur.
On Petitions for Rehearing
In our main opinion, we did not suggest that Lucier's unsuccessful actual experience in applying for jobs selected in the vocational consultant's plan is totally irrelevant to any claim for further disability and rehabilitation benefits. Rather, we sought to clarify that later evidence of unsuccessful job searching is not relevant to the threshold question of whether the plan, at the outset, reasonably gave Lucier an opportunity for substantial gainful employment in the state. At oral argument, Lucier conceded that was the only issue considered at the administrative hearing.
Obviously, evidence of Lucier's unsuccessful job search will be crucial for further relief under NDCC 65-05.1-04(2) to prove that he "is unable to obtain substantial employment as a direct result of injury...." See also Maginn v. N.D. Workers Comp. Bureau, 550 N.W.2d 412, 415 (N.D.1996) (injured worker is required to make good faith work trial in a modified position option under NDCC 65-05.1-01(4)); NDCC 65-05-10(1) (for purposes of compensation for temporary partial disability resulting in decreased earning capacity, employee has burden "to show that the inability to obtain employment or to earn as much as the employee earned at the time of injury, is due to physical limitation related to the injury, and that any wage loss claimed is the result of the compensable injury"). Lucier's attorney informed us during oral arguments that an application for relief under NDCC 65-05.1-04 was still pending before the Bureau.
The petitions for rehearing are denied.
NOTES
[1] This definition of "wages" has since been changed:
"Wages" means an employee's remuneration from all employment reportable by employers to the internal revenue service as earned income for federal income tax purposes and lost as the result of a compensable work injury.
NDCC 65-01-02(31) (1993); 1993 N.D. Laws Ch. 617 § 1. | 01-03-2023 | 06-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346060/ | 285 S.C. 508 (1985)
330 S.E.2d 529
Gussie L. LIGHTY, Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES, Respondent.
22332
Supreme Court of South Carolina.
Heard October 3, 1984.
Decided May 22, 1985.
Malcolm K. Johnson, Hartsville, for appellant.
Atty. Gen. T. Travis Medlock, Retired Atty. Gen. Daniel R. McLeod, Sr. Asst. Atty. Gen. Nan L. Black, Asst. Atty. Gen. P. *509 Brooks Shealy, Columbia and Asst. Atty. Gen. G. Conrad Derrick, Florence, for respondent.
Heard Oct. 3, 1984.
Decided May 22, 1985.
MOORE, Acting Associate Justice:
Respondent, South Carolina Department of Social Services, instituted this action against appellant, Gussie L. Lighty, for past child support furnished to Lighty's alleged child while in the care of her great aunt. Appellant's demurrer to the Petition on the ground the family court lacked subject matter jurisdiction was overruled by the family court judge. We reverse.
Respondent's Petition alleges the appellant is the natural mother of the minor child, Latrina Lighty, who was born on February 23, 1974. It also asserts the appellant failed to support her child and that therefore, the Department of Social Services paid $3,140.46 in Aid to Families with Dependent Children benefits to the child's great aunt, Novella Lighty, who had custody of the child. The Petition prays for an order requiring appellant to make periodic payments in a reasonable amount to reimburse the Department of Social Services for the public assistance it provided for the child. The Petition is based upon an assignment which Novella Lighty executed in favor of the South Carolina Department of Social Services prior to receiving any benefits for the minor.
The issue presented for this Court's review is whether the family courts have subject matter jurisdiction to determine a parent's liability for past support paid by the South Carolina Department of Social Services. We hold this action is one based upon a contract for the payment of a debt; therefore, jurisdiction is vested in the circuit court.
In the past, the issue of family court jurisdiction in the area of separation agreements has caused this Court great consternation. Until recently, words of art such as "incorporated" and "merged" controlled jurisdiction. In Moseley v. Mosier, 279 S.C. 348, 306 S.E. (2d) 624 (1983), the Court recognized that the parties' intent is rarely revealed from the words of art employed in an agreement, and ruled that any agreement approved by the family court remains subject to the court's *510 supervisory and enforcement powers absent an unambiguous provision denying the family court jurisdiction.
Our decision in this case, however, does not turn upon words of art; rather, it is predicated upon the very nature of the action instituted by the respondent. Although the Department argues persuasively that this is an action for child support, it is clearly an action for a debt, not unlike an action against one spouse for necessaries provided to the other spouse. See Richland Memorial Hospital v. Burton, 282 S.C. 159, 318 S.E. (2d) 12 (1984). As such, it is purely contractual in nature and is outside the jurisdiction of the family court. See Zwerling v. Zwerling, 273 S.C. 292, 255 S.E. (2d) 850 (1979); Fielden v. Fielden, 274 S.C. 219, 262 S.E. (2d) 43 (1980). Family courts generally do not have jurisdiction to enforce contractual agreements not incorporated or merged into court orders. Bryant v. Varat, 278 S.C. 77, 292, S.E. (2d) 298 (1982); Kane v. Kane, 280 S.C. 479, 313 S.E. (2d) 327 (S.C. App. 1984).
There is no question that family courts have continuing jurisdiction to modify child support. Moseley v. Mosier, supra. Here, however, there was no prior order of the family court either granting Novella Lighty custody of the minor child or requiring the appellant to provide support. Significantly, no request for present child support was included in respondent's Petition.
The propriety of granting or overruling a demurrer is limited to a consideration of the four corners of the complaint or petition. Preston H. Haskell Company v. Morgan, 274 S.C. 261, 262 S.E. (2d) 737 (1980). We have carefully reviewed the face of the Petition filed by the Department in this case and have discerned no allegations which would vest jurisdiction of this matter in the family court. Therefore, the order overruling the demurrer is reversed and this matter is remanded to the family court with directions to enter judgment in favor of the appellant.
Reversed and remanded.
GREGORY, HARWELL and CHANDLER, JJ., concur.
GREGORY, J., concurs in separate opinion.
NESS, J., dissents in separate opinion.
*511 GREGORY, Justice (Concurring):
I agree with the majority opinion; however, I feel compelled to discuss this case as it relates to our recent opinion in D.S.S. v. Fingerlin, 328 S.E. (2d) 71 (S.C. 1985).
The dissenting opinion cites Fingerlin for the proposition that S.C. Code Ann. § 20-7-420 (1976) deprived the Circuit Court of jurisdiction in domestic matters, and contends this is a domestic matter.
While Fingerlin does hold Section 20-7-420 confers exclusive jurisdiction in domestic matters, it has no effect in the instant case. As the majority notes, the action instituted by Respondent is for a debt, and is purely contractual in nature. Only the Circuit Court has jurisdiction in such matters.
The instant action is not a pure domestic case; therefore, Fingerlin has no application to these facts.
NESS, Justice, dissenting:
I respectfully dissent. In this action by respondent Department of Social Services to recover $3,140.46 expended by it for the support of appellant's child, the family court overruled appellant's demurrer. I would affirm.
For a period of approximately four years, appellant's aunt received public assistance from DSS for the support of appellant's child, who was being cared for by the aunt. In order to receive these benefits, the aunt assigned to DSS her rights to be reimbursed by appellant for the cost of the child's care. DSS brought this action in family court against appellant to recover the funds paid to the aunt for the child's support. Appellant demurred, arguing that the family court had no jurisdiction to adjudicate a parent's liability for past support paid by DSS.
The family court has exclusive jurisdiction "to hear and determine proceedings ... to compel the support of ... a child" and "to order support of a ... child." S.C. Code Ann. § 20-7-420 (11) and (14) (1983 Supp.). Appellant argues that these provisions do not confer jurisdiction upon the family court to order reimbursement of funds expended for past support unless the obligation was previously conferred by agreement or court order. I disagree.
A parent has a continuing obligation to support her child. S.C. Department of Social Services v. Lowman, 269 S.C. 41, *512 236 S.E. (2d) 194 (1977). It is a common law duty, embodied by statute, which exists even in the absence of an agreement or court order. The family court clearly has the authority to determine the amount of present and future child support payments. The family court also has the authority to compel the payment of the parent's past support obligation even though the amount has not been previously established. I would hold that the family court has jurisdiction to determine an action seeking reimbursement from the parent for funds provided for past support of the parent's child. S.C. Code Ann. § 20-7-840 (1983 Supp.).
I am aware of S.C. Code Ann. § 20-7-90(b) (1983 Supp.) which grants jurisdiction to the circuit court to require a parent to pay support for her child. When read in conjunction with § 20-7-420 (1983 Supp.), this statute must be read as a grant of jurisdiction to the circuit court which is concurrent to the family court's jurisdiction. Accordingly, even though respondent's action may arguably have been brought in circuit court, the family court also had jurisdiction to hear the matter. The trial judge properly overruled the demurrer.
The majority holds since this is a contract action for payment of a debt, jurisdiction is vested in the circuit court. I disagree.
In the recent case of DSS v. Fingerlin, 328 S.E. (2d) 71 (S.C. 1985), we held the enactment of § 20-7-420 deprived the circuit court of jurisdiction in domestic matters.
I would hold the above section and Fingerlin is dispositive on the issue of jurisdiction and would affirm the family court's overruling the demurrer.
I would affirm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346070/ | 135 Cal. App. 2d 776 (1955)
288 P.2d 101
ELIZABETH H. OGIER, Respondent,
v.
PACIFIC OIL AND GAS DEVELOPMENT CORPORATION (a Corporation) et al., Appellants.
Docket No. 16616.
Court of Appeals of California, First District, Division One.
September 30, 1955.
*777 Joseph A. Brown for Appellants.
Melbert B. Adams and Arthur Matin for Respondent.
WOOD (Fred B.), J.
Plaintiff brought this action against Pacific Oil and Gas Development Corporation, James P. George and A.F. Hilding for the recovery of $5,000 which she had paid the corporation for a security allegedly sold to her without the requisite Corporation Commissioner's permit therefor.
The trial court found: Defendant Hilding was agent and defendant George was president of Pacific Oil and Gas Development Corporation. On February 18, 1952, plaintiff was a single woman, aged 84, partially blind and reposed trust and confidence in Hilding. On said date, Hilding at the instance of George procured plaintiff's signature to a "letter-agreement" addressed to Pacific whereby she agreed to purchase one-quarter of 1 per cent overriding royalty in various leases enumerated in an attached list, George as president of Pacific affixed his signature thereto under a statement "confirmed *778 and agreed to," and plaintiff delivered to Hilding two checks, each payable to Pacific in the sum of $2,500. The foregoing was a sale within the meaning of the Corporate Securities Act and a permit of the Corporation Commissioner was required therefor but no permit had been issued or applied for. On February 19, 1952, Pacific filed an application for permission to sell and issue to plaintiff an oil royalty "provided the well to be drilled ... is completed as a commercial producer," attaching a copy of the letter-agreement to the application but omitting the signatures appended to the letter-agreement. On February 21, 1952, the application was granted, a permit to sell and issue said royalty to plaintiff "for the consideration, in the manner, and on the basis set forth therein"; the permit would expire by its terms if the security were not sold by August 20, 1952. The security was not issued by that date and never has been issued, and the well to be drilled was not completed as a commercial producer and drilling was abandoned by Pacific on or about March 25, 1952. Plaintiff received nothing for the $5,000 paid by her and a total failure of consideration occurred.
The court concluded that the sale to plaintiff on February 18, 1952, and the payment of a commission to Hilding were violations of the Corporate Securities Act; that the entire transaction was illegal and void and that plaintiff is entitled to recover from Pacific, from George, and from Hilding $5,000 with interest from February 18, 1952.
Defendants claim that the things done on February 18, 1952, did not constitute the "sale of a security" proscribed by the Corporate Securities Act.
They suggest that the evidence is insufficient to support the finding that plaintiff delivered the checks prior to the issuance of the permit but address themselves to what is really a mere conflict of testimony which the trial court decided in the plaintiff's favor.
Next, they direct attention to evidence that Hilding did not deliver these checks to the corporation until February 23d and that these checks were not paid or cashed until February 25th. They would conclude therefrom that the consideration for the security was not paid until after issuance of the permit; hence, no violation of the statute. There are two fallacies in this argument. [1] First, we think the delivery of the checks to Hilding as Pacific's agent was delivery to the corporation and that when in ordinary course the checks were honored and paid upon presentation to the *779 drawee bank, such payment related back to February 18th, the date the checks were delivered. (See Hooker v. Burr, 137 Cal. 663, 668 [70 P. 778, 99 Am. St. Rep. 17]; California Stearns Co. v. Treadwell, 82 Cal. App. 553, 558-563 [256 P. 242].) Defendants rely upon cases (such as Towey v. Esser, 133 Cal. App. 669, 674-675 [24 P.2d 853], and South San Francisco Packing etc. Co. v. Jacobsen, 183 Cal. 131 [190 P. 628]) which hold that a debt is not paid upon the mere receipt of a check which is dishonored when presented for payment. Plaintiff's checks were honored and paid upon presentment. [2] Second, payment of the consideration for the issuance of a security is not an essential element of a "sale" under the statute, which includes, for example, an "offer" to sell, an "attempt" to sell or the "solicitation" of a sale, "whether done directly or by agent, circular letter, advertisement or otherwise." (Corp. Code, § 25009, subd. (a).) In Los Angeles Transfer Co. v. Ritz Carlton Hotel Co., 7 Cal. App. 2d 154, 158 [46 P.2d 186], the fact that the money was not paid until after permit issued did not avoid the taint of illegality which attached to a subscription made prior to permit. The fact that here pre-incorporation as well as post-incorporation subscriptions were involved makes no significant difference in respect to the applicable principles.
[3] Defendants contend further that because the letter-agreement contained a clause which made its performance contingent upon the procurement by Pacific of a permit from the State Division of Corporations "permitting the consummation of said agreement to pay you five thousand dollars ... on demand which will be payment in full for my one-quarter of one percent ... overriding royalty in and to the Leases described ..." there was no violation of the statute. We overrule this contention upon the authority of Los Angeles Transfer Co. v. Ritz Carlton Hotel Co., supra, 7 Cal. App. 2d 154, 158. (See also Sampson v. Sapoznik, 124 Cal. App. 2d 704, 707 [269 P.2d 205].)
Defendants claim also that the "letter-agreement" was held in abeyance and not given effect until after permit issued; i.e., that a copy thereof signed by defendant George on behalf of Pacific was not delivered to plaintiff until after the permit had been received by Pacific. Defendants' theory seems to be that until the delivery of such a copy no "security" was issued by Pacific or received by plaintiff. [4] But it is not alone the unauthorized issuance of a security with which the statute is concerned. It is also the sale and the attempt *780 to sell, the offer to sell, the solicitation of a sale, and the taking of a subscription in the absence of an appropriate permit which the statute with equal concern proscribes. It is the act of selling that is primarily placed under the examination of the Corporation Commissioner. (People v. Sidwell, 27 Cal. 2d 121, 126-128 [162 P.2d 913].) [5] The solicitation and execution of the letter-agreement[*] were illegal and infected the entire transaction with illegality. That illegality was not cured by the subsequent issuance of a permit, there being no "intervening circumstance such as the making of a new agreement between the parties after issuance of the permit and in accordance with its terms." (Randall v. Beber, 107 Cal. App. 2d 692, 700 [237 P.2d 994].) Illegality attaches "because the Corporate Securities Act prohibits the making of such a sale or the acceptance of any of the purchase price and imposes penalties upon the corporation, its officers, agents, and other persons aiding in the sale. The statute does not expressly impose penalties upon the buyer. [6] Unless he participates in such a fashion, with such a degree of culpability as to put him in pari delicto with the corporation and its representatives, he is not without remedy. Under appropriate circumstances he may rescind, tendering the return of whatever of value he has received; if he has received nothing of value, he may without such a tender sue in damages for money or the property, or its value, which he paid or delivered or he may sue for money had and received. [Citations.]" (Tevis v. Blanchard, 122 Cal. App. 2d 731, 738 [266 P.2d 85].) [7] The law accords such a person "relief against the corporation [Pacific, in this case] and against any person [defendants Hilding and George] who aided the corporation in making the sale.... When the purchaser's action is for damages (as in this case),[] such a participant need not have received any of the consideration paid for the stock." (Randall v. Beber, supra, 107 Cal. App. 2d 692, 701.) There are no facts in the instant case tending to indicate that plaintiff was in pari delicto nor does it appear that the defendants claim the existence of any such facts.
The conduct of the defendants in soliciting plaintiff's subscription, in negotiating its terms, in obtaining its execution *781 and in taking her check for the $5,000, far transcends the mere business conversation preliminary to any fixed plan which this court held required no permit in B.C. Turf & Country Club, Ltd. v. Daugherty, 94 Cal. App. 2d 320, 329-333 [210 P.2d 760], and markedly differentiates this case from that. In Robbins v. Pacific Eastern Corp., 8 Cal. 2d 241 [65 P.2d 42], the essential parts of the transaction there involved occurred outside and beyond the jurisdiction of this state whereas here we have an intrastate transaction.
[8] Defendants also claim that the issuance of the permit constituted a conclusive adjudication in their favor as to the validity of the transaction. A complete answer is that "the doctrine of res judicata may not be availed of in connection with the exercise of administrative powers.... For the defense of res judicata to operate as an estoppel there must be a judgment by a court of competent jurisdiction." (Empire Star Mines Co. v. California Emp. Com., 28 Cal. 2d 33, 48 [168 P.2d 686].) Moreover, the record does not show that the Corporation Commissioner knew that the parties had executed the letter-agreement, indeed, there is some evidence tending to show he well may not have been aware of that fact. [9] Finally, this is a defense which was not presented to the trial court by way of a pleading or in any other manner. It is too late to urge it for the first time upon appeal.
In view of this conclusion, it is unnecessary to consider the correctness of the finding that Pacific, without a permit therefor, paid defendant Hilding a commission for making the sale to plaintiff.
The judgment is affirmed.
Peters, P.J., and Bray, J., concurred.
A petition for a rehearing was denied October 28, 1955, and appellants' petition for a hearing by the Supreme Court was denied November 23, 1955.
NOTES
[*] Defendants, appropriately, do not claim that an instrument which evidences a fractional or percentage interest in oil or gas production cannot be a "security" within the meaning of the statute. (See People v. Sidwell, supra, 27 Cal. 2d 121, 126.)
[] In the instant case, the second cause of action is for damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264301/ | 886 A.2d 876 (2005)
389 Md. 570
Joseph LAWSON
v.
STATE of Maryland.
No. 12, September Term, 2005.
Court of Appeals of Maryland.
November 28, 2005.
*879 Eve L. Brensike, Assigned Pro Bono Counsel, University of Michigan Law School, Ann Arbor, Nancy S. Forster, Public Defender, Michael R. Braudes, Asst. Public Defender, all on brief, for petitioner.
Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.
Russell P. Butler, Tracy Delaney, Upper Marlboro, Thomas P. Steindler, Mark H. Churchill, Eric S. Johnson, McDermott, Will & Emery, LLP, Washington, DC, Amicus Curiae.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
CATHELL, J.
On July 8, 2003, Joseph Lawson, petitioner, was convicted by a jury in the Circuit Court for Prince George's County on two counts of second-degree rape, two counts of attempted second-degree rape, and two counts of second-degree assault. He was thereafter sentenced by the trial court to fourteen years in prison. Petitioner appealed the convictions to the Court of Special Appeals challenging, among other things, the admissibility of a social worker's testimony at trial and the propriety of the prosecutor's closing arguments. On January 10, 2005, the intermediate appellate court reversed one count of second-degree rape and attempted second-degree rape, and affirmed the remaining convictions. Lawson v. State, 160 Md.App. 602, 632, 865 A.2d 617, 635 (2005).
Petitioner filed a petition for writ of certiorari on February 22, 2005 and we granted certiorari on May 12, 2005. Lawson v. State, 387 Md. 122, 874 A.2d 917 (2005). Petitioner presents the following questions for our review:
"1. Did the Court of Special Appeals err when it held that a county-employed social worker who was a stranger to the child complainant and who interviewed the child as part of a police investigation was acting `in the course of [her] profession' under Maryland Criminal Procedure § 11-304 rather than as a law enforcement agent?
"2. Did the Court of Special Appeals err when it deemed harmless the State's impermissible and inflammatory closing arguments to the jury, even though that court recognized that the State's arguments unconstitutionally shifted the burden of proof to Petitioner, violated the prohibition on `Golden Rule' arguments, and impermissibly suggested that Petitioner would commit similar crimes on another specific victim if he was acquitted?
"3. In a case in which Petitioner was convicted of two sexual assaults, did the Court of Special Appeals impermissibly dilute the legal definition of harmless error when it held that the erroneous admission of testimony from the complainant's mother about the second alleged incident only infected Petitioner's convictions for that incident, even though the mother's testimony also had the `carryover effect' of bolstering the credibility of the complainant's social worker, who testified about the first alleged incident?[[1]]
"4. Did the Court of Special Appeals err when it held that an out-of-court accusation of rape by a child complainant *880 who later testifies at trial and repudiates that out-of-court accusation is sufficient, without any independent corroboration, to convict the defendant?" [Footnote added.]
We hold that the testimony of the social worker was admissible under Md.Code (2001, 2005 Supp.) § 11-304 of the Criminal Procedure Article ("C.P."). We further hold that the cumulative effect of the prosecutor's improper remarks during closing argument and rebuttal was prejudicial, that the evidence presented did not overcome the prejudice created, and absent any attempts by the trial court to cure such prejudice the admission of the remarks constituted plain error. Finally, we hold that there was no error by the Court of Special Appeals in its corroboration ruling.
I. Facts
Sometime in July 2002, Nigha P., a seven-year-old girl, told her mother that petitioner, a twenty-seven-year-old man, had sexually molested her. On July 15, 2002, the mother reported to the police what Nigha had told her. Two days later, Nigha was examined by a physician at the Prince George's Hospital Center. On July 18, 2002, Jennifer Cann interviewed Nigha. Ms. Cann was a social worker employed by the Prince George's County Department of Social Services. Nigha, her mother, and Ms. Cann testified for the State at trial.
Nigha's testimony at trial described two separate instances in which the petitioner molested her. The first incident occurred sometime in October or November 2001. Nigha testified that petitioner, her mother, her grandparents and her brother lived with her during that period. Nigha and her brother shared a room and slept in bunk beds. Her brother slept on the top bunk and she slept on the bottom. According to Nigha, petitioner came into her room one night while she was watching television and her brother was sleeping. He then showed her his "private part," which she described as a "big long stick." He asked her if she knew what it was and she said "I don't know." He then climbed onto the bed with her, pulled down her pants and "tried to `stick his private part' into hers, penetrating her `a little bit.'" Lawson, 160 Md.App. at 610, 865 A.2d at 622. Nigha stated that petitioner did not put her on top of him and that he did not get on top of her. Nigha saw some "white stuff" come out of petitioner's private part. Petitioner went to the bathroom "got a rag," had Nigha clean up the "white stuff" from the floor and told her not to say anything. Nigha went to sleep after petitioner left the room. She did not tell anyone until July 2002.
The second incident took place one afternoon in June 2002. Nigha came home from school while petitioner and her brother were eating. At that time, petitioner no longer lived with them. Nigha testified that petitioner took her to her mother's room and asked her brother to look out for their grandmother. Nigha stated that petitioner told her that she could have some of his soft drink if she let him touch her in her "private part." She refused and he tried to pull down her pants. She then told him to stop and walked out of the room. Nigha testified that she did not see his "private part" that day.
Nigha's mother, Ms. Thomas, testified next. Her testimony was consistent with Nigha's account of the first incident of sexual abuse. Ms. Thomas's testimony regarding the second incident, however, was inconsistent with Nigha's account. According to Ms. Thomas, Nigha had told her that she did see petitioner's "private part" during the second incident and that he had a "plastic thing" on it.
*881 The final witness for the State was Ms. Cann. On a pretrial motion, petitioner's counsel had argued that Ms. Cann should not be allowed to testify as to Nigha's statements to her during the interview. The pre-trial judge denied petitioner's motion. At trial, petitioner was granted a continuing objection with regards to Ms. Cann's testimony about Nigha's out-of-court statements, preserving the issue for appeal. Ms. Cann's testimony was consistent with Nigha's account of the November 2001 incident. She also testified that Nigha had told her that there were two other occasions in which petitioner had abused Nigha. According to Ms. Cann, Nigha said that the day after the first incident, petitioner again placed his "private part" inside of hers. As to the June 2002 incident, Ms. Cann testified that Nigha had told her petitioner had pulled her pants down and, again, placed his "private part" inside hers.
After Ms. Cann's testimony the State rested. The petitioner took the stand on his own behalf and denied all the accusations against him. The defense then rested its case and both sides prepared for closing arguments. During the State's closing, the prosecutor made the following statements to the jury:
"[State:] When I was thinking over what I was going to say to you to try to convince you that justice should be served here, I started thinking about my eight-year-old niece, and if my eight-year-old niece came to me and told me
[Defense:] Objection.
The Court: Sustained.
[State]: I want you to put yourself in the shoes if you have an eight-year-old niece, seven-year-old niece, or you have an eight-year-old daughter, seven-year-old daughter, a cousin, a close family friend, and this child comes to you and says that someone that you know sexually molested them. What would go through your minds?
Well, I would urge you to think about certain things. One, motive. What is the motive here? Have you heard any motive? Did the defense give you a motive as to why Nigha would be lying?" [Emphasis added.]
The defense made a general objection which was summarily overruled. The State then implored the jurors again to place themselves in the shoes of Nigha's mother: "I urge you, while you are putting yourself in the shoes of someone who has had a child come to them and tell them this, what else do you look at? Well, again, you would look at details." [Emphasis added.]
The defense presented its closing argument. It was followed by the State's rebuttal, which included the following statement:
"What does a monster look like? Looks like different things to different people. What does a sexual molester look like? He looks like someone you know. He looks like your uncle, your brother, your sister, your cousin. It's possible. But there is no certain way that someone who molests children looks. But they do ingratiate themselves. They make themselves indispensable. They are friendly, always there to watch.
"Not everyone is like that, but please don't misunderstand me because the important point here is that a child molester looks like anybody else. That's why they are able to do what they do, because they look like all of us, and we trust.
"When I said that they ingratiate themselves, they make themselves indispensable. They make themselves helpful. The defendant told you, himself, he is paying for an apartment and he is not living there. He is letting an adult female *882 cousin, who just happens to have a little 11-year-old child, live there." [Emphasis added.]
After closing arguments, the petitioner moved for a mistrial based only upon the admission of Nigha's mother's testimony at trial. The court did not re-instruct the jury but merely sent a written version of its instructions back to the deliberation room.
II. Standard of Review
We have often stated that "this Court will not reverse for an error by the lower court unless that error is `both manifestly wrong and substantially injurious.'" I.W. Berman Props. v. Porter Bros., 276 Md. 1, 11-12, 344 A.2d 65, 72 (1975) (quoting Rotwein v. Bogart, 227 Md. 434, 437, 177 A.2d 258, 260 (1962)); see also Fish Mkt. Nominee Corp. v. G.A.A., Inc., 337 Md. 1, 15, 650 A.2d 705, 711 (1994); Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). The reviewing court will not reverse upon rulings on evidence that do not result in prejudice to the complaining party. Fish Mkt. Nominee, 337 Md. at 15, 650 A.2d at 711; Collins v. State, 318 Md. 269, 282, 568 A.2d 1, 7 (1990), cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 805 (1990); Johnson v. State, 303 Md. 487, 528, 495 A.2d 1, 22 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986); Tully v. Dasher, 250 Md. 424, 436, 244 A.2d 207, 214 (1968). See also Beahm v. Shortall, 279 Md. 321, 332, 368 A.2d 1005, 1011 (1977) ("[W]hat constitutes prejudice warranting reversal in the erroneous admission or rejection of evidence is to be determined on the circumstances of each case."); Rotwein, 227 Md. at 437, 177 A.2d at 260. Finally, we said in Dorsey, 276 Md. at 659, 350 A.2d at 678, that with respect to criminal matters, an error is not harmless unless, upon an appellate court's independent review of the record, it can say beyond a reasonable doubt that the error did not in any way influence the verdict.
III. Discussion
We must determine whether the out-of-court statements of a child to a social worker are admissible under C.P. § 11-304(c), whether the court's error in allowing the prosecution's improper closing remarks should result in reversible error, and whether a child victim's testimony of sexual abuse must be corroborated. We hold that the Court of Special Appeals was correct in affirming the trial court's admission into evidence of the social worker's testimony and finding that corroboration was not necessary but erred in determining that the closing remarks constituted harmless error.
A. Social Worker's Testimony
The State argues, and the Court of Special Appeals agreed, that the social worker's testimony is admissible under C.P. § 11-304. That statute provides in pertinent part:
"§ 11-304. Out of court statements of certain child victims.
. . .
(b) Admissibility. Subject to subsections (c), (d), and (e) of this section, the court may admit into evidence in a juvenile court proceeding or in a criminal proceeding an out of court statement to prove the truth of the matter asserted in the statement made by a child victim who:
(1) is under the age of 12 years; and
(2) is the alleged victim or the child alleged to need assistance in the case before the court concerning:
(i) child abuse . . .;
(ii) rape or sexual offense . . .; [or]
*883 (iii) attempted rape or attempted sexual offense in the first degree or in the second degree. . . .
(c) Recipients and offerors of statement. An out of court statement may be admissible under this section only if the statement was made to and is offered by a person acting lawfully in the course of the person's profession when the statement was made who is:
(1) a physician;
(2) a psychologist;
(3) a nurse;
(4) a social worker; or
(5) a principal, vice principal, teacher, or school counselor at a public or private preschool, elementary school, or secondary school."[2]
There is no dispute as to the fact that Nigha was under the age of 12, that her out-of-court statements were being offered for their truth and that they related to an alleged rape or sexual offense. The point at issue is whether the social worker interviewing Nigha as a result of a police notification qualifies as an offeror of the statements in court under C.P. § 11-304(c)(4).
We have said that "`[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.'" Rockwood Cas. Ins. Co. v. Uninsured Employers' Fund, 385 Md. 99, 108, 867 A.2d 1026, 1031 (2005) (quoting Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995)). Legislative intent must be sought in the first instance in the actual language of the statute. Empire Props., LLC v. Hardy, 386 Md. 628, 636, 873 A.2d 1187, 1192 (2005); State v. Bell, 351 Md. 709, 717, 720 A.2d 311, 315 (1998); Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-45, 697 A.2d 455, 458 (1997); Stanford v. Md. Police Training & Corr. Comm'n, 346 Md. 374, 380, 697 A.2d 424, 427 (1997) (quoting Tidewater/Havre de Grace, Inc. v. Mayor & City Council of Havre de Grace, 337 Md. 338, 344, 653 A.2d 468, 472 (1995)); Coburn v. Coburn, 342 Md. 244, 256, 674 A.2d 951, 957 (1996); Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995); Oaks, 339 Md. at 35, 660 A.2d at 429; Mauzy v. Hornbeck, 285 Md. 84, 92, 400 A.2d 1091, 1096 (1979); Bd. of Supervisors v. Weiss, 217 Md. 133, 136, 141 A.2d 734, 736 (1958). Furthermore, where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent. Empire Props., 386 Md. at 636, 873 A.2d at 1192; Williams v. State, 385 Md. 50, 58, 867 A.2d 305, 310 (2005); Gallegos v. Allstate Ins. Co., 372 Md. 748, 756, 816 A.2d 102, 107 (2003); Resper v. State, 354 Md. 611, 618-19, 732 A.2d 863, 867 (1999), cert. denied, 528 U.S. 1027, 120 S.Ct. 544, 145 L.Ed.2d 423 (1999); Marriott Employees, 346 Md. at 445, 697 A.2d at 458; State v. Thompson, 332 Md. 1, 6-7, 629 A.2d 731, 734 (1993); Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 515, 525 A.2d 628, 633 (1987). We also "construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory." Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1115 (2005). In the present case, the statute is clear and unambiguous. Under the statute at issue here, testimony offered by a social worker regarding a victim's statements obtained while the social worker was "acting lawfully in the course of [her] *884 profession" is admissible. C.P. § 11-304(c). We must determine, however, whether social workers acting upon police reports are acting in the course of their profession.
1. Social Work as a Profession
The State legislature, finding that "the profession of social work profoundly affects the lives, health, safety, and welfare of the people" of Maryland, enacted Md.Code (1981, 2005 Repl.Vol.), §§ 19-101 to 19-502 of the Health Occupations Article ("H.O.").[3] H.O. § 19-102. As a result, social workers must be licensed in order to act lawfully in the course of their profession in this State. H.O. § 19-301. It is undisputed that Ms. Cann is a licensed social worker employed by Prince George's County Department of Social Services. That a social worker is acting within the course of his or her profession when investigating alleged child abuse incidents is evident from the statutory scheme enacted for the protection of children as described below.
Title 5 of the Md.Code (1984, 2004 Repl.Vol.), §§ 5-701 to 1104 of the Family Law Article ("F.L.") was enacted "to protect children who have been the subject of abuse or neglect. . . ." F.L. § 5-702. The legislature intended to achieve this goal in a number of ways, two of which are relevant in this case: child abuse must be (1) reported and (2) promptly investigated by the department or law enforcement agency. Any person who has reason to believe that a child has been subjected to abuse must notify the local department or law enforcement agency. F.L. § 5-705.[4] Furthermore, health practitioners, police officers, educators, and human service workers[5]acting in a professional capacity are specifically required to notify the local department or law enforcement agency. F.L. § 5-704(a).
The Legislature also intended that there be a prompt investigation after the local department or law enforcement agency is notified of suspected abuse. F.L. § 5-706(a). Subsection (b) sets specific time requirements and actions to be taken:
(b) Time for initiation; actions to be taken. Within 24 hours after receiving a report of suspected physical or sexual abuse of a child who lives in this State that is alleged to have occurred in this State, and within 5 days after receiving a report of suspected neglect or suspected mental injury of a child who lives in this State that is alleged to have occurred in this State, the local department or the appropriate law enforcement agency shall:
(1) see the child;
(2) attempt to have an on-site interview with the child's caretaker;
(3) decide on the safety of the child, wherever the child is, and of other children in the household; and
(4) decide on the safety of other children in the care or custody of the alleged abuser.
The Legislature again makes it clear that such steps are necessary to protect the health, safety, and welfare of children in this State. F.L. §§ 5-706(a)(1), (2). The *885 recurring theme throughout Title 5 is the protection of the child. Social workers are acting in their professional capacity throughout the process even when they are informed of the abuse by police officers or themselves report the abuse to the police.
2. Admissibility of social workers' testimony in child abuse cases
We addressed the constitutionality of § 11-304 in State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005). We found that the legislation was "enacted in response to concerns that child abuse and sexual offenses were not being prosecuted adequately due to many child victims' inability to testify as a result of their young age or fragile emotional state." Id. at 76, 867 A.2d at 321. We then summarized the statutory requirements for the admissibility of such statements:
"the Maryland Legislature imposed safeguards in the tender years statute intended to insure that any admitted statement possessed `particularized guarantees of trustworthiness.' Md.Code (2001), § 11-304(d)-(f) of the Criminal Procedure Article. First, the statute requires that, if the child does not testify at trial, the State must produce corroborative evidence demonstrating that the defendant had the opportunity to commit the alleged abuse. Id. § 11-304(d)(2). The statute also requires that the trial court conduct a hearing to determine whether the proposed statements possess `particularized guarantees of trustworthiness.' Id. § 11-304(e)-(g). The statute contains a list of non-exclusive factors that the judge must consider in making this determination.[[6]] Id. § 11-304(e)(2). The judge must examine the child victim in chambers, closed to all except the judge, the victim, the victim's attorney, and one attorney each for the defendant and the prosecution. Id. § 11-304(g). The judge must then make a finding, on the record, as to `the specific guarantees of trustworthiness that are in the statement.' Id. § 11-304(f)(1). The defendant also has an opportunity to depose the health or social work professional whose testimony the State intends to offer. Id. § 11-304(d)(4)."
Snowden, 385 Md. at 76-77, 867 A.2d at 321 (emphasis added) (footnotes omitted). In order to satisfy the Confrontation *886 Clause of the United States Constitution,[7] we interpreted these requirements in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We determined that if the out-of-court statements were testimonial in nature they would be inadmissible unless the declarants were unavailable or subject to prior cross-examination. Snowden, 385 Md. at 92, 867 A.2d at 330. Petitioner argues that Nigha's out-of-court statements to the social worker were testimonial.[8] When the declarant testifies at trial, however, a different analysis is required.[9] In Snowden, we held that the testimony of the social worker violated the Confrontation Clause because
"[i]n a criminal trial, the State is required to place the defendant's accusers on the stand so that the defendant both may hear the accusations against him or her stated in open court and have the opportunity to cross-examine those witnesses. In Snowden's case, the State circumvented this right, through use of the tender years statutory framework, by having the social worker testify in place of the children. The burden, however, is on the State, not Snowden, to prove its case through production of witnesses and evidence that conform to the U.S. Constitution and Maryland Declaration of Rights."
Snowden, 385 Md. at 95-96, 867 A.2d at 332 (emphasis added) (internal citations omitted). However, as Justice Scalia pointed out in Crawford: "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a testimonial *887 statement so long as the declarant is present at trial to defend or explain it." Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9, 158 L.Ed.2d 177. In petitioner's case, the social worker did not "testify in place of the children." The declarant, Nigha, testified.[10] Lawson had the opportunity to, and did, cross-examine Nigha specifically with regards to her out-of-court statements to the social worker. We find that the social worker was acting lawfully in the course of her profession when she interviewed Nigha. Furthermore, even if the out-of-court statements were testimonial in nature (and we do not so hold), they were admissible because the declarant testified at trial. As a result, the Court of Special Appeals correctly affirmed the trial court's admission of the social worker's testimony.
B. Prosecutor's Closing Arguments
The Supreme Court of the United States has said, and this Court has acknowledged:
"There is no doubt that, in the heat of argument, counsel do occasionally make remarks that are not justified by the testimony, and which are, or may be, prejudicial to the accused. In such cases, however, if the court interfere[s], and counsel promptly withdraw[s] the remark, the error will generally be deemed to be cured. If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since, in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation."
Dunlop v. United States, 165 U.S. 486, 498, 17 S.Ct. 375, 379, 41 L.Ed. 799 (1897); Esterline v. State, 105 Md. 629, 66 A. 269 (1907); see also Spain v. State, 386 Md. 145, 159, 872 A.2d 25, 33 (2005); Degren v. State, 352 Md. 400, 722 A.2d 887 (1999); Leach v. Metzger, 241 Md. 533, 537, 217 A.2d 302, 304 (1966); Glickman v. State, 190 Md. 516, 521, 60 A.2d 216, 218 (1948). Petitioner argues, however, that although great latitude is given during opening and closing arguments, counsel is not allowed to "appeal to passion or prejudice [] which `may so poison the minds of jurors that an accused may be deprived of a fair trial.'" Eley v. State, 288 Md. 548, 552, 419 A.2d 384, 386 (1980) (quoting Wood v. State, 192 Md. 643, 652, 65 A.2d 316 (1949)); see Wilhelm v. State, 272 Md. 404, 414, 326 A.2d 707, 715 (1974); Contee v. State, 223 Md. 575, 583, 165 A.2d 889, 894 (1960).
We recently addressed the impropriety of a prosecutor's closing statements in Spain v. State, 386 Md. 145, 872 A.2d 25 (2005), where the defendant was charged with and convicted of distribution of a controlled dangerous substance (CDS), using a minor for the distribution of a CDS, possession of a CDS with intent to distribute, possession of a CDS, and conspiracy. The prosecution's case was supported by the testimony of the officer who arrested Spain, the drugs confiscated at the time of the arrest from another person involved, and the state's documentary exhibits. During closing, the prosecutor stated that the police officer did not have a motive to lie because
"`The Officer in [Spain's] case would have to engage in a lot of lying, in a lot *888 of deception and a conspiracy of his own to come in here and tell you that what happened was not true. He would have to risk everything he has worked for. He would have to perjure himself on the stand.'"
Id. at 151, 872 A.2d at 28. Defense counsel objected and the court overruled stating that "the jury understand[s] that this of course is closing argument, and that they will [consider the statements to be] lawyer's arguments." Id. In Spain, we were asked whether "the trial court properly exercised discretion in regulating the scope of closing argument when it allowed the State's Attorney to argue that the police officer in [that] case had no motive to lie and would risk his career by testifying falsely." Id. at 152, 872 A.2d at 29. We held that the court properly exercised its discretion in allowing the prosecutor to make those statements. Id.
In answering the question we acknowledged the "great leeway" given to attorneys during closing arguments by quoting Degren v. State, 352 Md. 400, 722 A.2d 887 (1999):
"`The prosecutor is allowed liberal freedom of speech and may make any comment that is warranted by the evidence or inferences reasonably drawn therefrom. In this regard, [g]enerally, . . . the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments, as is accused's counsel to comment on the nature of the evidence and the character of witnesses which the [prosecution] produces.
* * *
"While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair and reasonable deductions therefrom, and to arguments of opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined no well-defined bounds beyond which the eloquence of an advocate shall not soar. He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses. He may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions.'"
Id. at 152-53, 872 A.2d at 29; see also Glickman, 190 Md. at 521, 60 A.2d at 218. We then recognized that although there are no "hard-and-fast" limitations during closing arguments, we disapproved of certain techniques such as vouching for a witness's credibility because they infringe on a defendant's right to a fair trial. But we held that "[a]lthough we agree that [some] of the prosecutor's comments transcended the boundaries of proper argument, we conclude ultimately that those statements did not mislead or influence the jury unduly to the prejudice of Spain, and therefore constituted harmless error." Spain, 386 Md. at 154, 872 A.2d at 30 (emphasis added); see also Degren, 352 Md. at 437, 722 A.2d at 905 (holding that the improper remarks did not prejudice the defendant); Leach, 241 Md. at 537, 217 A.2d at 304 (holding that the trial judge did not abuse his discretion in denying a motion for a mistrial after the plaintiff used an improper argument at closing).
We discussed the appropriateness of assessing a witness's credibility during opening and closing arguments, why the statements vouching for the credibility of the police officer were improper, and most importantly why, under the circumstances of that case, they were not prejudicial to the defendant. We again relied on Degren for *889 the standard to be used in reviewing remarks made during closing argument:
"Not every improper remark [made by a prosecutor during closing argument], however, necessarily mandates reversal, and `[w]hat exceeds the limits of permissible comment depends on the facts in each case.' We have said that `[r]eversal is only required where it appears that the remarks of the prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused.' This determination of whether the prosecutor's comments were prejudicial or simply rhetorical flourish lies within the sound discretion of the trial court. On review, an appellate court should not reverse the trial court unless that court clearly abused the exercise of its discretion and prejudiced the accused."
Id. at 158-59, 872 A.2d at 33 (emphasis added); Henry v. State, 324 Md. 204, 596 A.2d 1024 (1991), cert. denied, 503 U.S. 972, 112 S.Ct. 1590, 118 L.Ed.2d 307 (1992). We then considered the factors to be used during appellate review of the trial judge's decision: "the severity of the remarks, the measures taken to cure any potential prejudice, and the weight of the evidence against the accused." Spain, 386 Md. at 158-59, 872 A.2d at 33; see Henry, 324 Md. at 232, 596 A.2d at 1038 (stating that "[i]n determining whether reversible error occurred, an appellate court must take into account `1) the closeness of the case, 2) the centrality of the issue affected by the error, and 3) the steps taken to mitigate the effects of the error.' Collins, 318 Md. at 280, 568 A.2d at 6"). We applied these factors and under the circumstances there present, found that, with respect to the severity of the remarks, the prosecutor's statement was an isolated event that did not permeate the trial. In determining whether the harm was cured, we paid particular attention to the actions of the trial court. We recognized that the trial judge did not acknowledge that the comments were improper but he emphasized, to the jury, that they were only arguments and not evidence. We determined that his comments to the jury ameliorated the prejudicial effect of the remarks. Finally, we addressed the weight of the evidence supporting the conviction. We recognized that "`[a]nother important and significant factor where prejudicial remarks might have been made is whether or not the judgment of conviction was "substantially swayed by the error," or where the evidence of the defendant's guilt was overwhelming.'" Spain, 386 Md. at 161, 872 A.2d at 34 (quoting Wilhelm, 272 Md. at 427, 326 A.2d at 722). We found that this factor, in Spain, did not play a significant role because the evidence against him was not so overwhelming as to cure the effect of the statements. Additionally, we found that the statements were not so severe that their admission would deny him a fair trial. We then concluded that the lack of severity of the comments, the lack of potential impact and the court's curative steps were sufficient to uphold the conviction. We now turn to the present case.
1. Impropriety of the prosecutor's statements
First, we must determine what statements, if any, were improper. The petitioner argues that the prosecutor improperly addressed the jury on four different occasions. The prosecutor used a "golden rule" argument,[11] she then insinuated *890 that the burden was upon the petitioner to prove that the child was lying, she also appealed to the jury's prejudices and fears, and finally, she alluded to the fact that petitioner's conviction might prevent harm to another specific child in the future.
a. Golden Rule argument
Petitioner points out that "[b]y asking the jurors to put themselves in the shoes of Nigha's mother . . . the State improperly appealed to the passions of the jury in order to persuade them to believe Nigha's version of events." When a jury is asked to place themselves in the shoes of the victim, the attorney improperly appeals to their prejudices and asks them to abandon their neutral fact finding role. The Court of Special Appeals recognized petitioner's argument that "such `arguments are impermissible because they encourage the jurors to abdicate their position of neutrality and decide cases on the basis of personal interest rather than the evidence.'" Lawson, 160 Md.App. at 627, 865 A.2d at 632. The intermediate court found that the remark was improper, but that the general instructions to the jury before oral argument were sufficient to cure any prejudice engendered by it. Id.
Albeit in a civil case, the Court has addressed this specific issue in Leach v. Metzger, 241 Md. 533, 217 A.2d 302 (1966), a personal injury case where a husband and wife sued the driver who had collided with them. The wife was injured as a result of the crash. During closing arguments the plaintiff's attorney asked the jury to put themselves in the place of the husband. The defense attorney promptly objected to the statement and moved for a mistrial. The judge denied the motion, but instructed the jury about the impropriety of the remarks and of their duty to be "fair and reasonable." Id. at 536, 217 A.2d at 303. The Court recognized the problem arising from such statements and said:
"The vice inherent in such argument is that it invites the jurors to disregard their oaths and to become non-objective viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations, and resultingly courts in many other jurisdictions have deemed such `golden rule' arguments to be improper."
Id. at 536-37, 217 A.2d at 304. See also Hill v. State, 355 Md. 206, 214, 734 A.2d 199, 204 (1999) (recognizing that "golden rule" arguments appealing to the jury's own interests are inappropriate). The Court nevertheless upheld the judgment stating that the judge had promptly and properly corrected the error by instructing the jury. Leach, 241 Md. at 536-37, 217 A.2d at 304. That case, however, involved only one improper statement by the plaintiff. In the case sub judice, the improper comments continued unabated. Moreover, there was no contemporaneous or specific curative instruction given in the present case; the trial court relied on a general instruction.
b. Burden shifting statements
Petitioner argues that the State improperly attempted to place a burden upon him to present evidence that Nigha had a motive to lie. The Court of Special Appeals determined that the prosecutor's statements clearly asserted that petitioner had failed to present evidence rebutting the State's case. Lawson, 160 Md.App. at 628, 865 A.2d at 633. That court, however, found that the statements did not deny petitioner a fair trial, even if improper, because the jury instructions clearly stated that the burden was upon the State.
We stated in Eley, 288 Md. at 555 n. 2, 419 A.2d at 388 n. 2, that the prosecution *891 was not free to "comment upon the defendant's failure to produce evidence to refute the State's evidence" because it could amount to an impermissible shift of the burden of proof. Later, in Degren, 352 Md. at 429, 722 A.2d at 901, a prosecutor during rebuttal stated: "`nobody in this country has more reason to lie than a defendant in a criminal trial.'" We determined that such a remark was improper, unprofessional and injudicious. We found, however, that the trial court did not abuse its discretion in allowing the comments and denying the defendant's motions for curative instructions. We reasoned that, although improper, the comment did not bear directly on the defendant's guilt or innocence. Furthermore, the comments were made in response to the defendants closing arguments stating that the State's witnesses had various reasons to lie.
In Shoemaker v. State, 228 Md. 462, 468, 180 A.2d 682, 685 (1962), the prosecutor alluded to the fact that the defendant would be eligible for parole if convicted. The Court concluded that such statements tend to shift the responsibility for finding guilt or innocence onto another body after conviction. It found that it was "clear that the argument . . . was improper, and that the jurors `were likely to have been [improperly] influenced to the prejudice of the accused'. . . ." Id. at 473, 180 A.2d at 688 (citations omitted); see also Brown v. State, 339 Md. 385, 663 A.2d 583 (1995) (holding that a prosecutor's statement insinuating that the jury could take mercy into account during deliberations was improper, that the effect of injecting such a proposition into the deliberations created the possibility that it would influence the verdict and was not harmless error).
The primary evidence in this case was provided directly or indirectly by the victim's statements. Thus, her credibility was a major issue. The prosecutor's statements tended to shift the State's burden to prove all the elements of the crime beyond a reasonable doubt by requiring the defendant to prove that Nigha was lying. The State's statements were, therefore, inappropriate and under all of the circumstances of this case, as hereafter explained, the "jurors `were likely to have been [improperly] influenced to the prejudice of the accused'. . . ." Shoemaker, 228 Md. at 473, 180 A.2d at 688.
c. Appealing to the Jury's fears and prejudices.
Petitioner points to the prosecutor's appeal to the juror's prejudices and fears when she made the following remarks:
"What does a monster look like? Looks like different things to different people. What does a sexual molester look like? He looks like someone you know. He looks like your uncle, your brother, your sister, your cousin. It's possible. But there is no certain way that someone who molests children looks. But they do ingratiate themselves. They make themselves indispensable. They are friendly, always there to watch.
"Not everyone is like that, but please don't misunderstand me because the important point here is that a child molester looks like anybody else. That's why they are able to do what they do, because they look like all of us, and we trust."
Petitioner declares that such statements are designed to inflame the jurors' prejudices against a hated class of individuals and are therefore improper. The Court of Special Appeals disagreed stating that "[t]he State never directly characterized appellant as a `monster' or `sexual molester.'" Lawson, 160 Md.App. at 630, 865 A.2d at 634. The intermediate court found that the comments were isolated and that *892 they did not affect the petitioner's right to a fair and impartial trial. In the context of this case, we disagree.
Prosecutors should not appeal to the prejudices of the jury. Contee, 223 Md. at 584, 165 A.2d at 894; Hill, 355 Md. at 211, 734 A.2d at 202. In Hill, the prosecution's improper remarks extended throughout the duration of the trial. The prosecutor, during opening arguments, told the jury that they were "chosen to send a message to protect [the] community" and to "keep[ the] community safe." Hill, 355 Md. at 211, 734 A.2d at 202. The defense's prompt objection to that remark was sustained. Id. Later, during closing arguments the prosecution again asked the jury to send a message to the community and to the defendant's cronies. The objection to that statement was overruled. After the jury commenced deliberations, a motion for a new trial based on the improper remarks was denied. The Court of Special Appeals upheld the trial court's decision based primarily upon the fact that the defense attorney failed to raise the objection before the jury was sent out for deliberations. Id. at 215, 734 A.2d at 204.
This Court reversed stating that the objection was not overruled due to its untimeliness but on the merits. As a result, the motion did preserve the issue for review even though it was raised after the jury retired for deliberation. The Court also found that the prosecutors statements were "wholly improper and presumptively prejudicial. . . ." Id. at 216, 734 A.2d at 205. We recognized that the defense's motion for a new trial asked for "more than just another curative instruction. . . . The point made was that the jury had been contaminated [] by the prosecutor's improper [remarks, including] . . . references to the need for the jurors to convict petitioner in order to preserve the quality of their own communities." Id. at 219-20, 734 A.2d at 206. As a result, the prosecutor's statements prejudiced the defendant.
The Court of Special Appeals in Walker v. State, 121 Md.App. 364, 709 A.2d 177 (1998), addressed the impropriety of a prosecutor's closing argument calling the defendant an "animal" and a "pervert." The court, in addressing these statements stated:
"Indeed, the nature of the evidence presented certainly gives rise to the conclusion that the actions of appellant assuming them to be true as we must were perverse, to say the least. When viewed, however, in the context of the totality of the prosecutor's closing argument, given such odious offenses, it is ironic that resort to excessive appeals to passion are needed to secure a conviction when the nature of the charges and the evidence adduced, without embellishment, is inherently inflammatory, albeit properly so. The right to a fair trial and the search for the truth, however, should not be hampered or obfuscated by extreme appeals to passion calculated to inflame the jury.
"When the reference to the silent screams and `pervert' are considered in conjunction with the characterization of appellant as `an animal,' we believe the prosecutor, in her zeal, exceeded the bounds of proper comment. Not only is it inappropriate to refer to a defendant in a criminal case as `an animal,' it may be argued that such strategy, in some instances, could be counterproductive should the jury view the State as engaging in a personal contest with the defendant. It is incumbent upon the People's representative to maintain an air of dignity and stay above the frey."
Id. at 380-81, 709 A.2d at 185 (emphasis added). In the present case, although the prosecutor did not say "this defendant" is a monster and a child molester, it is clear *893 that she intended to imply to the jury that he was that monster and child molester. Under circumstances such as those present here, it is not necessary for the prosecutor to specifically name the defendant, in order for the jury to understand that a defendant is the person the prosecutor is describing. Such statements are therefore inappropriate.
d. Future criminality
Petitioner contends that the State improperly argued that petitioner would, if allowed to roam free, sexually abuse his cousin's eleven-year-old child implying that he was already setting the child up by allowing the mother and child to live in his apartment. The Court of Special Appeals recognized that we have not addressed the issue of the allegation of future criminality in a prosecutor's closing argument. Lawson, 160 Md.App. at 631, 865 A.2d at 634. That court then looked at other state court opinions to guide them in their analysis. State v. Brown, 131 Idaho 61, 951 P.2d 1288, 1297 (1998); State v. Williams, 145 S.W.3d 874 (Mo.Ct.App.2004); Williams v. State, 261 Ga.App. 511, 583 S.E.2d 172, 177 (2003); People v. McNeal, 175 Ill.2d 335, 222 Ill.Dec. 307, 677 N.E.2d 841, 855 (1997). The court found that such arguments are improper because they are based upon facts not in evidence at trial. Lawson, 160 Md.App. at 631, 865 A.2d at 634. We agree with the Court of Special Appeals that such statements are improper, furthermore we find that such statements, under the circumstances here present, were highly prejudicial to the defendant.
e. Summary of the effect of the improper statements
The Court of Special Appeals evaluated each of the statements standing alone and determined that each statement, independent of the others, did not merit reversal of all of the convictions, stating that "[t]he remarks at issue were unquestionably improper but, in each instance, they were short, isolated, and vague comments and thus did not vitally affect appellant's right to a fair and impartial trial." Lawson, 160 Md.App. at 632, 865 A.2d at 635. Because the Court of Special Appeals did not consider the separate statements in the context of the prejudice that each of the statements, and all of them together, created in the minds of the jurors, we disagree. As petitioner argues, taken alone the statements may not affect the appellant's right to a fair and impartial trial, but their cumulative effect leads to a different conclusion. This becomes clearer as one applies the two remaining factors under Spain: the strength of the case and the trial court's actions.
2. Weight of the evidence
The evidence supporting the jury's verdict plays an important role in determining the influence of a prosecutor's improper remarks during trial. In Spain, there was physical evidence of the crime along with the testimony of the police officer who witnessed the event. We decided that in light of the fact that there remained sufficient evidence to convict, in spite of the effect of the improper statement that Spain nonetheless received a fair trial. We also found that the prosecutor's remarks were not severe and that the court cured any potential prejudice. The convictions were affirmed. Spain, 386 Md. at 161, 872 A.2d at 34. In the present case there was less evidence than in Spain and the prosecutor's remarks were severe and considered cumulatively were much more prejudicial. The State's case was based primarily on Nigha's testimony and the statements she gave to her mother and the social worker. Although Nigha's mother and the social worker testified, they did so *894 mainly as to the information that Nigha had provided to them. Their testimony contradicted Nigha's testimony as to the second incident. As a result, this was a close case where the evidence against the petitioner was less than overwhelming. There was some corroborative evidence. But, in respect to the central issue of the case, it was basically a "she said, he said" case. In our balancing analysis, this fact weighs more heavily on the side of prejudice because there is a higher probability, in the case sub judice than in Spain, that the prosecutor's statements had an improper impact in respect to the jury's decision.
When the trial court errs in admitting such statements we have said that "`the determinative factor . . . has been whether or not the erroneous ruling, in relation to the totality of the evidence, played a significant role in influencing the rendition of the verdict, to the prejudice of the [defendant].'" Degren, 352 Md. at 432, 722 A.2d at 887 (quoting Dorsey, 276 Md. at 653, 350 A.2d at 674).
3. Trial court's remedial measures
The final factor under Spain requires us to evaluate the trial court's actions addressing the prosecutor's remarks. The first time the court had an opportunity to address these remarks was upon the objection by petitioner to the prosecutor's reference to her own niece and the insinuation to the jury that they should put themselves in the shoes of the victim. The court properly sustained that objection. The court, however, overruled the next objection to the prosecutor's comment implying that petitioner had to prove that Nigha had a motive to lie. The only other action taken by the trial court with regard to the prosecutor's remarks was one paragraph in the jury instructions based upon the Maryland Criminal Pattern Jury Instructions (MPJI-CR § 3:00) stating:
"Opening statements and closing arguments of lawyers are not evidence in this case. They are intended only to help you to understand the evidence and to apply the law. Therefore, if your memory of the evidence differs from anything the lawyers or I may say, you must rely on your own memory of the evidence."
This instruction was given only generally and then before oral argument when it could not address specifically the objectional remarks because they had not yet been made. After closing arguments the same general written instruction was sent back with the jury without elaboration or without being identified as having any specific relationship with the prosecutor's improper remarks. The trial judge in Spain did use the same instruction and we recognized the presumption that jurors are able to follow the instructions given to them by the trial court. Spain, 386 Md. at 160, 872 A.2d at 34. However, at the specific time the objectionable remarks were made in Spain, the trial court immediately responded in the presence of the jury: "Okay, well the jury understand[s] that this of course is closing argument, and that they will [consider the statements to be] lawyers' arguments." Id. at 151, 872 A.2d at 29. Judge Harrell responded for us in Spain:
"We note also the likely diminution of prejudice from the prosecutor's comments as a result of the trial judge's contemporaneous reminder that they were only an attorney's argument, not evidence,. . . . By emphasizing the argumentative nature of closing arguments contemporaneously with the improper comments, the judge took some effort to eliminate the jury's potential confusion about what it just heard and therefore ameliorated any prejudice to the accused."
*895 Spain, 386 Md. at 159-60, 872 A.2d at 33-34 (emphasis added). In the case sub judice there were no contemporaneous efforts by the trial judge to ameliorate the prejudice or any specific effort to cure the effects. Instead, he relied only on the general instructions he had previously given and the fact that written general instructions would go in the jury deliberation room.
We look at the trial judge's actions as a whole in reference to the statements. In Spain, for example, upon objection by the defense attorney to the prosecutor's comments, the trial court contemporaneously and specifically addressed the issue that the jury understood the remarks to be only lawyers' arguments and not evidence. See Miller v. State, 380 Md. 1, 35-37, 843 A.2d 803, 823-24 (2004) (holding that the trial court properly denied a motion for a mistrial based upon a prosecutor's comments because it properly sustained the defense's objections, granted the defense motions to strike and immediately instructed the jury to disregard the specific comments); Dunn v. State, 140 Md. 163, 117 A. 329 (1922) (holding that since the trial court promptly admonished the prosecutor and told him to refrain from making improper statements, the trial court did not err when it overruled an objection and denied a motion for a mistrial). In petitioner's case the only time the judge addressed the weight or appropriateness of the prosecutor's remarks was in the general jury instructions, which at no point directly addressed the improper remarks. Thus there was no immediacy or specificity as to any efforts to cure.
Recognizing the role of the trial court in ruling upon remarks made during closing arguments this Court has stated:
"When in the first instance the remarks of the State's Attorney do appear to have been prejudicial, a significant factor in determining whether the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused is whether or not the trial court took any appropriate action, as the exigencies of the situation may have appeared to require, to overcome the likelihood of prejudice, such as informing the jury that the remark was improper, striking the remark and admonishing the jury to disregard it."
Wilhelm, 272 Md. at 423-24, 326 A.2d at 720. And then in Hill:
"The Court of Special Appeals will also need to take account of the persistency of the prosecutor's conduct continuing to make these remarks time and again despite the court's rulings that the remarks were improper. A court obviously commits no error when it sustains objections to impermissible comments or gives a proper curative instruction, if that is all that is requested. There is a risk, however, when the prosecutor persistently ignores those rulings and continues in an improper course of conduct, that the jury may come to regard the court's rulings as rote window dressing and thus pay less attention to them. The number of such rulings may actually assume an inverse significance the more of them, the less weight each or all of them will have in which event only a mistrial may serve to remedy the error."
Hill, 355 Md. at 226, 734 A.2d at 210. In this case, the prosecutor's inappropriate remarks continued and when taken as a whole were highly prejudicial to the petitioner.
We hold that the cumulative effect of the prosecutor's remarks was likely to have improperly influenced the jury under the circumstances in the case at bar. The weight of the evidence was not overwhelming. The State's case relied heavily upon the credibility of the victim. The trial *896 judge did not take sufficient steps and took no specific steps to ensure that the jury give the appropriate consideration to the statements as only being the prosecutor's arguments and not evidence. As a result, we cannot find beyond a reasonable doubt that the prosecutor's remarks were harmless. See Dorsey, 276 Md. at 659, 350 A.2d at 678.
The Court of Special Appeals determined that petitioner failed to preserve some of the issues for review because he only objected to two of the statements and did not move for a mistrial as to those issues at the end of closing arguments. Lawson, 160 Md.App. at 629-30, 865 A.2d at 633. The intermediate court then found that when an issue is not preserved, it must find that there was plain error in order to reverse the conviction. The court noted that plain error is invoked "only in instances which are compelling, extraordinary, exceptional, or fundamental to a fair trial." Id. (citations omitted) (internal quotations omitted); see Miller, 380 Md. at 29, 843 A.2d at 820; Conyers v. State, 354 Md. 132, 171, 729 A.2d 910, 930-31 (1999), cert. denied, 528 U.S. 910, 528 U.S. 910, 120 S.Ct. 258, 145 L.Ed.2d 216 (1999); Clermont v. State, 348 Md. 419, 455, 704 A.2d 880, 898 (1998); Rubin v. State, 325 Md. 552, 588, 602 A.2d 677, 694 (1992); State v. Hutchinson, 287 Md. 198, 202, 411 A.2d 1035, 1037 (1980). In the intermediate court's opinion, each statement when considered in isolation, was not so harmful to the petitioner as to amount to plain error.
That court erred in limiting a plain error issue to each inappropriate statement separately. Once error is determined during a "plain error" review, prejudice can only be determined by a consideration of the error in the context of the entire case including the cumulative effect of all errors on the ability of a jury to render a fair and impartial verdict in the context of the case.
The Court of Special Appeals points to Clermont and Rubin for the proposition that this Court is reluctant to find plain error in closing arguments. Lawson, 160 Md.App. at 631, 865 A.2d at 635. These cases, however, are very different when compared to the case sub judice. They were both cases where there was ample evidence against the defendants and the arguments did not vitally affect their right to a fair trial. Clermont, 348 Md. at 456, 704 A.2d at 898 ("There is no basis for reversal because none of the alleged errors vitally affected Clermont's right to a fair and impartial trial."); Rubin, 325 Md. at 589, 602 A.2d at 695 (noting that "the improper argument is not a basis for reversal in view of the overwhelming proof of guilt"). In the present case, the primary evidence against the petitioner that the offenses occurred was the testimony of Nigha. Although her testimony alone was legally sufficient for a conviction, it might not have convinced the jury. The prosecutor's comments when taken as a whole, could have prejudiced the jury in such a way as to deny the defendant a fair and impartial trial. See Meno v. State, 117 Md. 435, 441, 83 A. 759, 761 (1912).
C. Corroborating Evidence
The last question in petitioner's brief states: "Did the Court of Special Appeals err when it held that an out-of-court accusation of rape by a child complainant who later testifies at trial and repudiates that out-of-court accusation is sufficient, without any independent corroboration, to convict the defendant?" This question is moot, however, because the repudiating statement only related to the second alleged incident, and the Court of Special Appeals reversed the petitioner's conviction arising from that incident specifically *897 because there was "[n]o medical evidence or other corroborative evidence [] presented that [petitioner] raped Nigha in June 2002, except, that is, for the testimony of the social worker, whose sole source of information was the same as Nigha's mother: Nigha's post-incident statement which was repudiated by Nigha at trial." Lawson, 160 Md.App. at 620, 865 A.2d at 628. The intermediate court affirmed only the convictions relating to the first incident in October or November 2001 which was not repudiated by Nigha at trial.
Petitioner further argues that the child's in-court testimony without independent corroboration was not sufficient to support either rape conviction.[12] In support of his position, petitioner contends that although the Maryland cases recognize that corroboration is not necessary in rape cases, this Court has not explained the rationale behind that rule. Be that as it may, our cases clearly establish that corroboration evidence is not necessary when the victim testifies. See Green v. State, 243 Md. 75, 80, 220 A.2d 131, 135 (1966); Johnson v. State, 238 Md. 528, 536, 209 A.2d 765, 768 (1965); Leek v. State, 229 Md. 526, 528, 184 A.2d 808, 809 (1962) (per curiam), cert. denied, 372 U.S. 946, 83 S.Ct. 940, 9 L.Ed.2d 971 (1963); Domneys v. State, 229 Md. 388, 391, 182 A.2d 880, 881 (1962); Doyal v. State, 226 Md. 31, 34, 171 A.2d 470, 471 (1961); Smith v. State, 224 Md. 509, 511, 168 A.2d 356, 358 (1961); Robert v. State, 220 Md. 159, 164, 151 A.2d 737, 739 (1959); Saldiveri v. State, 217 Md. 412, 420, 143 A.2d 70, 74 (1958) (stating that the state did not need to corroborate the testimony of an eight-year-old girl rape victim); Lusby v. State, 217 Md. 191, 199, 141 A.2d 893, 897 (1958) (holding that the testimony of an incestuous relationship by a seventeen-year-old victim did not need corroboration). The Court of Special Appeals has recognized this rule in multiple occasions. Moore v. State, 23 Md.App. 540, 551, 329 A.2d 48, 55-56 (1974), cert. denied, 274 Md. 730 (1975) ("the victim's testimony, standing alone, if believed, is sufficient to sustain the conviction."); Estep v. State, 14 Md.App. 53, 70, 286 A.2d 187, 196 (1972), cert. denied, 265 Md. 737 (1972); Crenshaw v. State, 13 Md.App. 361, 371, 283 A.2d 423, 429 (1971), cert. denied, 264 Md. 746 (1972); Williams v. State, 11 Md.App. 350, 354, 274 A.2d 403, 405 (1971); Charles v. State, 4 Md.App. 110, 112, 241 A.2d 435, 436 (1968); Johnson v. State, 3 Md.App. 219, 222, 238 A.2d 295, 296 (1968); Reed v. State, 1 Md.App. 662, 664, 232 A.2d 550, 550 (1967) (per curiam), cert. denied, 248 Md. 735 (1967).
In this case, even if we were to hold that corroboration was required (and we do not so hold), there is enough corroborating evidence to support a conviction. Section 11-304(d) of the Criminal Proceedings Article provides:
"(2) If the child victim does not testify, the child victim's out of court statement will be admissible only if there is corroborative evidence that:
(i) the defendant had the opportunity to commit the alleged crime. . . ." (Emphasis added.)
If required, testimony showing that the defendant had the opportunity to commit the crime would be sufficient to show corroboration. In this case, the Court of Special Appeals found that Nigha's testimony was fully corroborated:
"We do note, however, that, despite the absence of a corroboration requirement in Maryland law, Nigha's testimony *898 was, in fact, fully corroborated by the social worker's testimony as to the November 2001 incident. And Nigha's testimony, in turn, partially corroborated her social worker's testimony as to what occurred in June 2002."
Lawson, 160 Md.App. at 623, 865 A.2d at 630. Furthermore, petitioner admits that he knew Nigha and her family and, although he denies living with them after August of 2001, he admits that he stopped by their house and that sometimes only the children would be there. As a result, the jury could reasonably conclude that the petitioner had an opportunity to commit the alleged crime.
IV. Conclusion
Section 11-304 of the Criminal Procedure Article allows social workers acting in their professional capacity to testify as to out-of-court statements given to them by children under twelve regarding child abuse. The Court of Special Appeals correctly upheld the Circuit Court's decision to allow the social worker to testify as to the out-of-court statements in the present case.
Prosecutors are given "great leeway" during opening and closing arguments. They must, however, remain within the bounds of the evidence presented at trial and refrain from appealing to the jury's passions or prejudices. When improper comments are made during opening and closing arguments, we give much deference to the trial court in exercising its discretion. When, however, there are multiple inappropriate statements and the trial court fails to cure the prejudice created by the cumulative effect of those statements, the admissibility of such statements may amount to more than harmless error. In this case, the trial court failed to correct the multiple inappropriate statements made by the prosecution and as a result the petitioner was denied his right to a fair and impartial trial.
In Maryland, there is no requirement to provide corroborating evidence of the abuse in respect to a child victim of sexual abuse that testifies. Should we impose such requirement, it is clear from § 11-304(d)(2) that the only corroboration necessary is that the defendant had the opportunity to commit the crime. In this case there was sufficient evidence for the jury to make such a finding.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMING CONVICTIONS OF RAPE, ATTEMPTED RAPE AND ASSAULT IS REVERSED AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGE'S COUNTY.
Concurring Opinion by HARRELL, J., which RAKER, J., Joins.
I write separately because I am leery of the Majority opinion's approach to factoring into its closing argument "cumulative effect" analysis (Maj. op. at 589-606, 886 A.2d at 887-97) the unpreserved (and therefore waived) arguments as to the improprieties in the prosecutor's rebuttal arguments.
I have no doubt that Lawson properly preserved, by timely general objection in the trial court, his appellate ability to argue that, during the State's initial closing argument, the prosecutor improperly made "golden rule" and burden-shifting arguments. With regard to the trial court not sustaining the objection, I agree with the *899 Majority's conclusion that that constituted error.
With equal lack of doubt, the record reveals (and the Majority opinion does not dispute) that Lawson wholly failed to object during the prosecutor's rebuttal closing arguments when she utilized the "monster" characterization and alluded to the potential for Lawson's future dangerousness with regard to his 11 year old female cousin. Moreover, when he moved for a mistrial following the State's rebuttal argument, Lawson failed to suggest that anything said in the rebuttal argument was of concern to him.[1] While these omissions may have implications in a post-conviction proceeding, the lack of objection on these points limit their consideration on direct appellate review.
There are sound, non-technical reasons for requiring, as a precursor to appellate preservation, defendants to object. See Md. Rule 4-323 generally. Objections alert the trial judge and permit him or her to consider the legal propriety of the particular question, piece of documentary evidence, or argument and, if appropriate, whether a curative measure may be fashioned to overcome or substantially ameliorate the possible prejudice of a legal misstep. See, e.g., Hall v. State, 119 Md.App. 377, 389-90, 705 A.2d 50, 56 (1998). If that gauntlet is run successfully, there is no need for appellate relief, just as there should be no need in the vast majority of cases for appellate review of unpreserved issues.
The plain error invocation by Lawson is twofold (1) he wants the unobjected rebuttal arguments as to the "monster" reference and his future dangerousness considered and weighed-in on their merits, and (2) he desires that his "cumulative effects" contention, which finds no roots in a trial objection or his motion for mistrial, also be reviewed on the merits. The Majority opinion, after acknowledging the same appellate criteria used by the Court of Special Appeals in evaluating whether plain error review should be undertaken and whether relief is merited ("only in instances which are compelling, extraordinary, exceptions, or fundamental to a fair trial," Maj. op. at 604-05, 886 A.2d at 895-96 (citations omitted)), dispenses with any meaningful analysis under those criteria and instead sweepingly proclaims:
That court [Court of Special Appeals] erred in limiting a plain error issue to each inappropriate statement separately. Once error is determined during a "plain error" review, prejudice can only be determined by a consideration of the error in the context of the entire case including the cumulative effect of all errors on the ability of a jury to render a fair and impartial verdict in the context of the case.
Maj. op. at 604-05, 886 A.2d at 896.
I have two problems with this reply. First, it is uncritically dismissive of the compound non-preservation in this record. No meaningful effort is made to justify why the errors so found fit the applicable criteria. Second, although I agree with both the Majority and the Court of Special Appeals that the pertinent rebuttal arguments were improper, the failure to complain about their utterance should not be excused on direct appeal. Although the impropriety of the pertinent rebuttal arguments seems obvious, these errors, that "flew below the radar" of trial counsel, do not strike me as worthy of characterization, *900 in and of themselves, as compelling, extraordinary, exceptional, or fundamental to a fair trial. Accordingly, I would not factor the rebuttal arguments into an analysis of whether reversal in this case should result.
Yet, I would reverse based on the preserved errors from the State's initial closing arguments, for much of the same reasons marshalled by the Majority opinion in its cumulative effects analysis. This should have been a close case at trial. Basically, it came down to Nigha's credibility versus that of Lawson. The mother and the social worker merely repeated what Nigha told them. Even then, Nigha's trial version of the second encounter was inconsistent with what the mother and social worker informed the jury that Nigha told them. There was also the matter of the additional accostings the social worker said Nigha told her about, but which did not figure in Nigha's trial testimony or what her mother testified Nigha told her. On such a record, I am unable to state, beyond a reasonable doubt, that the improprieties in the State's initial closing influenced the verdict in no way.
I have no quarrel with the balance of the Majority opinion or the judgment.
Judge RAKER authorized me to state that she joins this concurrence.
NOTES
[1] Due to the resolution of the other questions presented for our review, we need not address this issue at this time.
[2] This statute, known as Maryland's tender years statute, was enacted in 1988 and codified at Md.Code (1973, 1989 Repl.Vol.), § 9-103.1 of the Courts and Judicial Proceedings Article. In 1996, it was moved to Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 775. It is now codified as Md.Code (2001, 2005 Supp.), § 11-304 of the Criminal Procedure Article.
[3] This section was originally enacted as Md.Code (1957, 1980 Repl.Vol.), Article 43, §§ 859-870A, pursuant to Chapter 852 of the Acts of 1975.
[4] The statute does exclude certain individuals who have a recognized legal privilege against disclosing information. § 5-705(2), (3).
[5] The definition of "Human service worker" under Title 5 includes any social worker. Md.Code (1984, 2004 Repl.Vol.), § 5-701 (g)(2)(iii) of the Family Law Article.
[6] Footnote 14 in Snowden states
"These factors are:
(i) the child victim's personal knowledge of the event;
(ii) the certainty that the statement was made;
(iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion;
(iv) whether the statement was spontaneous or directly responsive to questions;
(v) the timing of the statement;
(vi) whether the child victim's young age makes it unlikely that the child victim fabricated the statement that represents a graphic, detailed account beyond the child victim's expected knowledge and experience;
(vii) the appropriateness of the terminology of the statement to the child victim's age;
(viii) the nature and duration of the abuse and neglect;
(ix) the inner consistency and coherence of the statement;
(x) whether the child victim was suffering pain or distress when making the statement;
(xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportunity to commit the act complained of in the child victim's statement;
(xii) whether the statement was suggested by the use of leading questions; and
(xiii) the credibility of the person testifying about the statement."
Md.Code (2001, 2005 Supp.), § 11-304(e)(2) of the Criminal Procedure Article. In the present case, the trial court applied these factors and found the testimony to be reliable.
[7] The Confrontation Clause states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. It has been made applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Snowden, 385 Md. at 75 n. 9, 867 A.2d at 320 n. 9. Maryland's Constitution contains a similar clause in Article 21 of the Maryland Declaration of Rights, which has been construed as being in pari materia with the federal Constitution's Confrontation Clause. Snowden, 385 Md. at 75 n. 9, 867 A.2d at 320 n. 9.
[8] Although petitioner does not use the term "testimonial" in his argument, he emphasizes the fact that the statements were made to an agent of the police (based on petitioner's assertion that the social worker was an agent of the police) and in preparation for litigation. In support of this argument, petitioner points to Low v. State, 119 Md.App. 413, 705 A.2d 67 (1998), where the Court of Special appeals held that statements by a 12-year-old child sexual abuse victim, to a physician examining her at the request of a social worker during the investigation, were inadmissible because they did not meet the requirements of Maryland Rule 5-803(b)(4). Section 11-304 did not apply because the child was 12 years of age. Low, 119 Md.App. at 427 n. 7, 705 A.2d at 74 (Alpert, J. dissenting). We need not determine the nature of the out-of-court statement because the declarant in the present case testified at trial, was subject to cross-examination and was cross-examined by the petitioner.
[9] The mere fact that the interview was conducted after the police investigation and that the social worker was gathering information that, while primarily related to the social worker's responsibilities, could also be used as evidence in court is not determinative regarding the testimonial nature of the encounter. In Snowden, we determined that the statements made to the social worker were testimonial. We did so, however, after reviewing all the circumstances of that case, including the stated purpose of the interviews, the fact that the police had initiated the investigation, and more importantly the presence of the police officer during the social worker's interview. The children's awareness of such presence, we said, "overwhelms any argument that the statements were not testimonial because they were not in response to police questioning." Snowden, 385 Md. at 87, 867 A.2d at 327.
[10] In Low, the Court of Special Appeals found that the child's testimony at trial was not sufficient because she was a reluctant witness and her testimony was vague, disjointed, and unreliable. Low, 119 Md.App. at 426, 705 A.2d at 73-74. In contrast, Nigha's testimony at trial was clear and coherent. Furthermore, based in part, on that testimony, the Court of Special Appeals reversed Lawson's conviction for the second incident. Lawson, 160 Md.App. at 620, 865 A.2d at 628.
[11] A "golden rule" argument is one in which an arguing attorney asks the jury to place themselves in the shoes of the victim. Leach v. Metzger, 241 Md. 533, 535 n. 1, 217 A.2d 302, 303 n. 1 (1966); Lawson, 160 Md.App. at 627, 865 A.2d at 632.
[12] Petitioner entered a motion for a judgment of acquittal based upon lack of corroboration at the end of the prosecutor's case in chief and at the end of all the evidence, preserving the issue for appeal.
[1] The impropriety vel non of the pertinent rebuttal arguments, as determined by the Majority opinion in the abstract (bereft as they are of timely objection), is not here disputed; it is their employment in the cumulative effects analysis by the Majority (Maj. op. at 599-601; 604-06, 886 A.2d at 893-94, 895-97) that draws my fire. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204051/ | 888 N.E.2d 1185 (2008)
227 Ill. 2d 585
PEOPLE
v.
BEOH.
No. 106023.
Supreme Court of Illinois.
March Term, 2008.
Disposition of petition for leave to appeal.[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264329/ | 886 A.2d 706 (2005)
DEPARTMENT OF TRANSPORTATION, Petitioner
v.
PENNSYLVANIA INDUSTRIES FOR the BLIND AND HANDICAPPED, Respondent.
Commonwealth Court of Pennsylvania.
Argued September 15, 2005.
Decided October 26, 2005.
*708 Audrey R. Miner, Asst. Counsel, Harrisburg, for petitioner.
Bradley A. Schutjer, Harrisburg, for respondent.
BEFORE: SMITH-RIBNER, Judge, and PELLEGRINI, Judge (P.), and LEAVITT, Judge.
OPINION BY Judge LEAVITT.
The Pennsylvania Department of Transportation (Department) petitions for review of an adjudication of the Board of Claims (Board) finding the Department in breach of its contract with the Pennsylvania Industries for the Blind and Handicapped (PIBH). By this contract, PIBH agreed to operate the Department's photo licensing centers under a "cost-plus" system of compensation. The Board held that the Department was obligated to reimburse PIBH for bonus and severance payments made to employees because they were valid "costs" within the meaning of the contract.
BACKGROUND
The facts are not in dispute. Since 1984, PIBH has operated the Department's photo licensing centers under a series of contracts whereby the Department has compensated PIBH on a per license basis. Effective December 31, 1996, the parties departed from their prior practice to adopt a "cost plus system" of compensation. Under this new system, the Department agreed to reimburse PIBH for its costs for operating the centers, with the proviso that reimbursement would not exceed $10,806,058 in any one year and that aggregate maximum reimbursement for the five-year term of the contract would not exceed $55 million.
The contractual relationship between the Department and PIBH was set forth in several writings. Agreement No. 72099, "Photographic Driver's License/Identification Card Service and Location Agreement," is the basic contract document. It incorporates two other essential documents. "Exhibit A," "Photo License Service Specifications," contains the details of PIBH's performance on matters that range from facility layout (1.3.1), furnishings (1.6.1) and employee job description (3.3) and training (4.2) to metal reflective signs (6.1) and type of electrical outlets (1.4.1). "Exhibit B," "Contract Specification Budget Proposal," is a four-page document prepared by PIBH that identifies fourteen categories of expenses and PIBH's projected costs for each category. In terms of dollar amounts, rent and labor costs are the largest expense categories in the Budget. "Direct Labor," i.e., labor provided by the photo license technicians, is projected to cost $4,213,684 each year, and "Indirect labor," i.e., labor provided by the program managers, is projected to cost $831,673. "Occupancy" is expected to cost $4,247,010 each year. In addition to estimating an annual amount for each of the fourteen expense categories, the Budget specifies a "burden" consisting of 15% to be added to each expense category to cover PIBH's overhead costs for such items as personnel administration and central computer maintenance.[1]
*709 PIBH compensates its employees in salary and benefits, including vacation time, pension, health insurance, life and disability insurance. Reproduced Record at 178a (R.R. ____). In addition, PIBH pays employees who retire, or resign, their accrued but not used vacation time. Finally, PIBH pays employees performance bonuses if certain targets are met. These compensation practices antedate the inception of the relationship instituted by Agreement No. 720999, the Specifications and the Budget (collectively Agreement).
On August 21, 1998, PIBH submitted Invoice No. 10011872 to the Department that requested reimbursement for costs incurred in July 1998, including, inter alia, $77,294.61 for the category "indirect labor." Of that amount invoiced, the Department approved $72,726.65. The Department's discrepancy report noted a deduction of $4,567.96 for severance pay, which it refused to pay as outside the terms of the Agreement.
On December 16, 1998, PIBH submitted Invoice No. 10014358 requesting reimbursement for costs incurred in November 1998. Of the $69,027.01 invoiced for "direct labor," the Department approved $56,596.58. The Department's discrepancy report explained the reason for the reduction as "no provision ... in the contract for employee-bonus payments." Reproduced Record at 29a. R.R. 29a.
In January 1999, PIBH initiated an attempt to resolve the matter, but when it was unsuccessful, PIBH filed a complaint with the Board. The complaint specified that the Department was in breach of contract with respect to four invoices submitted between July 1998 and February 1999, including Invoice Nos. 10011872 and 10014358, described above. Additionally, the complaint alleged that as "of the date of this Claim, [Department] has continued to refuse to pay PIBH's invoices and it is believed and therefore averred that [Department] will continue to refuse to pay such invoices as well as the invoice[s] set forth in the preceding paragraph." Complaint, ¶ 11; R.R. 7a. As anticipated, the Department continued to refuse to reimburse PIBH for the disputed labor costs for the next four years while the matter was litigated before the Board.
The record before the Board was developed by a joint stipulation of facts, agreed-upon exhibits and the deposition testimony of Joy Gross, the Department's former manager of the Driver License Division of the Bureau of Driver Licensing. Ms. Gross's deposition was placed into the record to explain the Department's position with respect to its obligation to reimburse PIBH for labor costs.
With respect to such labor costs, Ms. Gross delved into the specific matter of bonus and severance payments. She testified that:
A: We believe that the contract does not cover severance pay as severance pay, and, therefore we would not be required to pay for severance. And as far as bonuses are concerned, there are no allowances for bonuses, and so we do not believe that we would be liable to pay for bonuses.
Q: And we've looked at three documents, all of which sort of make up the majority of the contract between the parties. Am I correct that there's no provision that directly *710 defines what is reimbursable salary and benefits.
A: That's correct.
Q: So to put it simplest, [the Department's] position is since it's not in there, we don't have to pay it?
A: Yes.
R.R. 176a (emphasis added). However, when confronted with the fact that the Department had reimbursed PIBH for other expenses that were "not in there," such as pension and health insurance payments, Ms. Gross opined:
A: Bonuses are above and beyond salary expectations in my view. Bonuses are not something that you expect to get routinely. These [reimbursed] expenditures, I believe, are things you would expect to get routinely if that's in your contract, you individually. Bonuses are above and beyond this.
Q: So [the Department's] position on what is reimbursable relates to what an employee would expect as a normal part of their salary and benefits?
A: I believe so, yes.
Q: But that expectation was not written out in any fashion, was it?
A: Specifically, no.
R.R. 178a (emphasis added).
In its pre-trial statement, PIBH explained that it sought damages equal to all bonus and severance payments that the Department had rejected over the life of the contract. The Department objected, asserting that each invoice rejection gave rise to a new cause of action, requiring a separate complaint to be filed. In response, PIBH filed a petition to amend complaint to conform the pleading to the evidence of damages; the Board granted PIBH's petition.
Upon consideration of the evidence, the Board concluded that PIBH's expenses for bonuses and severance pay were reimbursable under the Agreement. It reasoned that the Agreement used very general terms, i.e., "direct labor" and "indirect labor," without any limit on or exclusion for "bonus" and "severance" payments.[2] Further, because it was PIBH's policy to pay performance bonuses and severance for unused vacation time, the Board noted that such payments were appropriate even under the Department's argument that "direct and indirect labor" meant "routine" compensation. Permitting PIBH to amend its complaint, the Board held, did not violate the statute of limitations because the original complaint, which was timely filed, alleged a continuing harm. It rejected the notion that each invoice constituted a separate cause of action and required the filing of a new complaint.
Accordingly, the Board ordered the Department to pay PIBH $319,016.34, plus interest, for unpaid amounts on invoices submitted from August 21, 1998, to June 8, 2002. In addition, the Board ordered the payment of pre-judgment interest in the amount of $81,458.59. The Department then petitioned for this Court's review.
On appeal,[3] Department presents two issues for our consideration. First, it *711 contends that the Board erred in its construction of the term "actual work completed" as used in the Agreement. Second, it contends that the Board erred in granting PIBH's petition to amend its complaint to include additional unpaid invoices.
CONTRACT TERMS ON BONUS AND SEVERANCE
The Department contends that PIBH's payments for bonus and unused vacation time were not "for actual work completed" but, rather, were payments "in addition" to compensation received for the work completed, and, therefore, not reimbursable. In response, PIBH argues that in the absence of specific language on what items make up "labor costs," payments for unused vacation time and for performance bonuses constitute payments for "actual work completed."
Contract interpretation is a question of law that requires the court to ascertain and give effect to the intent of the contracting parties as embodied in the written agreement. Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973). Courts assume that a contract's language is chosen carefully and that the parties are mindful of the meaning of the language used. Steuart v. McChesney, 498 Pa. 45, 51, 444 A.2d 659, 662. "`When a writing is clear and unequivocal, its meaning must be determined by its contents alone.'" Murphy v. Duquesne University Of The Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (quoting East Crossroads Center Inc. v. Mellon-Stuart Co., 416 Pa. 229, 231, 205 A.2d 865, 866 (1965)).
With these principles in mind, we turn to the operative terms of the Agreement. The basic document, Agreement No. 720999, recites the fundamental terms of the contractual agreement:
1. PIBH agrees to provide ... operations of all locations as shown in the specifications provided by the COMMONWEALTH, and in accordance with all of the conditions set forth in the specifications which are attached as Exhibit "A" and made part of this Agreement ...
* * *
4. The COMMONWEALTH will pay PIBH during the existence of this Agreement, the actual costs for work completed in accordance with the terms and conditions of the Agreement at the rates set forth in the budget proposal accepted by the COMMONWEALTH and attached as Exhibit "B."
5. PIBH will submit monthly to the COMMONWEALTH a certified detailed statement of actual expenditures, including but not limited to allowable overhead and indirect charges. ... failure to submit invoices in a timely manner may result in nonpayment by the COMMONWEALTH....
Agreement No. 720999 (emphasis added); R.R. 11a-12a. Exhibit "B," the Budget provides, relevant part, as follows:
A. Direct Labor $4,213,684
There are approximately 350 Photo License Technicians employed through PIBH and its member agencies. These technicians issue the State's 2,200,000 Driver Licenses at 93 locations across the Commonwealth. They are supervised by PIBH's Regional and District Managers.
B/[sic] Indirect Labor $ 831,673
PIBH manages the 93 Driver License Centers with a total staff of 18[:] a State Manager, a Facilities Manager, three Regional Managers, 9 District Managers, a Personnel Coordinator, an Invoice *712 Administrator, and two Communications/Clerk personnel.
* * *
O. Burden
Burden of 15% is included in each category. This rate is consistent with that currently approved by the Department.... Burden includes normal operating costs: loan/financing expenses, personnel administration, payroll, central computer operations, clerical support, accounts payable and receivable, insurance, professional services, rent, phones, electric, heat, water, sewage, trash removal, maintenance, taxes and other occupancy costs.
Agreement, Exhibit "B," Budget Proposal at ¶¶ A, B and O; R.R. 69a, 72a. Thus, under the Agreement, PIBH agreed to submit detailed monthly statements of "actual expenditures including but not limited to allowable overhead and indirect charges," and Department agreed to pay PIBH for the "actual costs for work completed."[4] The controversy focuses on "actual costs for work completed."[5]
The Department first argues that the term "actual costs for work completed" is synonymous with "compensation." This is important, according to the Department, because case law has established that a bonus is not compensation. In support, it directs our attention to Beardsley v. State Employes' Retirement Board, 691 A.2d 1016 (Pa.Cmwlth.1997).[6]Beardsley is a statutory construction, not a contract case. Notwithstanding this difference, the Beardsley test might be instructive had the word "compensation" been used in the Agreement and been the word or phrase at issue in this case. However, "compensation" is not a word used in the Agreement to describe the Department's duty to reimburse PIBH.[7]
Next, the Department contends that because the Agreement does not use the words "bonus" or "severance," they are *713 not reimbursable. The Department reasons that because PIBH failed to specify a category for bonus and severance payments in the Budget, the Department cannot reimburse PIBH for these payments. We disagree for several reasons.
First, the Department's argument is founded on the premise that PIBH was required to inform the Department of the specifics of its compensation practices. However, no such obligation is stated in any of the operative documents that make up the Agreement of the parties. PIBH's Budget did not identify any of the components that made up the total annual projections for the cost of direct and indirect labor. Once PIBH presented its Budget, the duty was on the Department to demand more detail if it lacked the specificity expected by the Department. Instead, the Department accepted the Budget in the form submitted and made it part of the Agreement.
Second, the Department's argument is flawed by inconsistency. The words as "health insurance" do not appear in the Agreement, and yet the Department agreed to pay health insurance. It has singled out the bonus and severance components of labor "costs" for non-payment. The Department contends that there is a crucial difference between bonuses and pension, which the Department refused, and medical, life and disability insurance payments, which the Department paid. The difference is that PIBH itemized these insurance and benefits in its invoices, and PIBH did not itemize bonus and severance from the "payroll."[8] This is not a compelling justification.
The Agreement requires PIBH to submit an itemized statement of its actual expenditures, but there is no basis for believing that the invoice was intended as the device to refine the meaning of "actual costs for work completed." Further, the objection is easily overcome: PIBH could simply revise its invoice form to specify bonus and severance payments.[9] PIBH was required only to invoice by Budget category, and that is exactly what it did.
The Department's alternate theory is that since bonus and severance payments were not addressed in the Agreement, there was no meeting of the minds on their payment.[10] A meeting of the minds requires the concurrence of both parties to an agreement, or they have failed to operate a enforceable contract. Mountain Properties Inc. v. Tyler Hill Realty Corp., 767 A.2d 1096, 1101 (Pa.Super.2001). Further, there must be a meeting of the minds on all terms in a contract. Onyx Oils Resins Inc. v. Moss, 367 Pa. 416, 420, 80 A.2d 815, 817 (1951).
The Department's meeting of the minds argument is not persuasive.[11] The *714 Department agreed to pay PIBH for its "actual costs for work completed" up to the maximum budget cap of $4,213,684 for Direct Labor and $831,673 for Indirect Labor. There was a meeting of the minds on the Department's obligation to reimburse PIBH for its labor costs, and the Department does not contend that PIBH did not incur costs invoiced for bonus and severance payments.
As pointed out by PIBH, labor costs must be understood as a broad term. In support, it points out that Section 2.1 of the Pennsylvania Wage and Payment and Collection Law (WPCL), Act of July 14, 1961, P.L. 637, as added by the Act of July 14, 1977, P.L. 82, defines "wages" as follows:
"Wages." Includes all earnings of an employee, regardless of whether determined on time, task, piece, commission or other method of calculation. The term "wages" also includes fringe benefits or wage supplements whether payable by the employer from his funds or from amounts withheld from the employees' pay by employer.
43 P.S. § 260.2a (emphasis added). Both bonuses[12] and the payment of accrued but unused vacation pay fall within this definition of "wages." See Gautney v. Amerigas Propane, Inc., 107 F.Supp.2d 634 (E.D.Pa. 2000) (bonuses owed under employment contracts are "wages" within the meaning of Pennsylvania WPCL); Harding v. Duquesne Light Co., 882 F.Supp. 422 (W.D.Pa.1995) (accrued but unpaid vacation time and stock appreciation rights constitute "wages" under WPCL). This precedent supports the proposition that bonuses and payment for accrued but unused vacation pay are nothing unusual and are, in fact, valid labor costs.
The Department may regret that it did not contractually retain the right to supervise PIBH's compensation practices, but this does not support the conclusion that the parties failed to effect an enforceable contract or contract term. The Department could have demanded a more detailed Budget that would show each component of "direct labor" and "indirect labor" costs, but it did not. We are constrained to give meaning to the words used, and so we affirm the Board's construction of the Agreement.
*715 THE AMENDED COMPLAINT
The Department next challenges the Board's decision to allow PIBH to amend its complaint to include all invoices rejected by the Department because they included bonus and severance payments in the category of direct and indirect labor costs. The Department argues that the statute of limitations in a contract claim begins to run when the cause of action accrues, and the applicable statute of limitations here was six months after the claim accrued. PIBH did not seek to amend its complaint until August 6, 2004, long after the six-month statute of limitations for initiating a contract claim against the Department had run on most of the invoices.
The premise to the Department's argument here is that each invoice denial constituted a separate cause of action. In support, it directs the Court to American Motorists Insurance Co. v. Farmers Bank and Trust Company of Hanover, 435 Pa.Super. 54, 644 A.2d 1232 (1994), where an insurer was permitted to amend its complaint to recover four years of alleged overpayments to a nursing home. It was limited to four years because that was the applicable statute of limitations for contract claims. In explaining its decision to impose a time limit to the amendment, the Superior Court observed that the plaintiff introduced a brand new legal theory, thereby changing its original cause of action. By contrast, PIBH has pursued the same legal theory since inception of this litigation.
The determination of whether to grant leave to amend a complaint lies within the sound discretion of the trial court; such leave should not be granted if it results in surprise or prejudice to the other party or where the amendment is against a positive rule of law. Bogert v. Allentown Housing Authority, 426 Pa. 151, 157-58, 231 A.2d 147, 150 (1967). While amendments to pleadings are liberally granted in general,[13] an amendment which introduces a new cause of action, i.e., new theory, will not be permitted after the statute of limitations of that cause of action has expired.[14]Laursen v. General Hospital of Monroe County, 494 Pa. 238, 243, 431 A.2d 237, 239 (1981). Where, however, the proposed amendment does not change the cause of action, but merely amplifies that which has already been averred, the amendment should be allowed. Id. An amendment states a new cause of action where the amendment rests on a different legal theory, basis for recovery or relationship between the parties. American Motorists, 644 A.2d at 1235.
PIBH's amendment did not introduce a new legal theory, as was the case in American Motorists. As found by the Board, the parties were the same; the legal theory was the same; the relationship was the same; the actions complained of were the same; and the contract sued upon was the same. There was no surprise or prejudice to the Department because there was no new cause of action presented. The Complaint, at paragraph 11, specifically *716 averred a continuing harm from the Department's refusal to reimburse its bonus and severance payments. The legal question was always the same: whether bonus and severance payments were valid costs for work completed.
PIBH sued for breach of contract. When it filed its complaint, its total damages were unknown because the Agreement was still in force and would be for the next four years. The invoices included in the amended complaint were simply additional items of damages.[15] The Pennsylvania Superior Court has explained that an amendment of the ad damnum clause is permitted at any point in litigation. R.P. Clarke Personnel, Inc. v. Commonwealth National Bank, 384 Pa.Super. 524, 559 A.2d 560, 566 (1989). We agree with this principle and uphold the Board's grant of amendment.
CONCLUSION
We are bound by the written words of the Agreement. The Department was painstakingly exacting on some aspects of the Agreement. Exhibit "B," the Specifications, set forth over 30 pages of detail on how the license centers would be operated. However, it left to PIBH discretion to determine its compensation practices. As a consequence, the Budget is not a detailed document. It identified fourteen categories of expense, plus burden, and each PIBH invoice tracked each category in the Budget. Ordinary contract principles require that where a party is granted discretion under the terms of the contract, the discretion must be exercised reasonably, subject to the implied duty of good faith and fair dealing. RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981). By following its long-standing compensation practices, PIBH did exercise its discretion reasonably.
Accordingly, the decision of the Board is affirmed.
ORDER
AND NOW, this 26th day of October, 2005, the order of the Pennsylvania Board of Claims dated April 15, 2005, in the above-captioned case is hereby affirmed.
NOTES
[1] PIBH was also required to abide by the standard Commonwealth contractor integrity, non-discrimination and contractor responsibility rules that were attached to Agreement No. 720999 as Exhibits "C," "D" and "E."
[2] The Board used the terms "direct salary" and "indirect salary" but the actual terms contained in PIBH's Budget are "indirect labor" and "direct labor." R.R. 69a. (emphasis added).
[3] This court's scope of review of a decision of the Board is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or the necessary findings of fact are supported by substantial evidence. Tri-State Asphalt Corp. v. Department of Transportation, 875 A.2d 1199, 1201 (Pa.Cmwlth.2005).
[4] This was subject to the annual maximum of $10,806,058, set forth in Agreement No. 720999. It is not claimed by the Department that PIBH exceeded the budget caps.
[5] The Department asserts that "actual costs for work completed" is clear and unambiguous, and it means that an invoice that does not show that it relates to costs for work completed, it may be rejected. To concede the term is ambiguous would allow this court to construe the contract against the draftor. Sabad v. Fessenden, 825 A.2d 682 (Pa.Super.2003). The Department does not explain why, then, it offered Ms. Gross's testimony as parol evidence at the hearing before the Board to support its position that "actual costs for work completed" was limited to costs the Department deemed "normal."
[6] In Beardsley, this Court had to determine a bonus payment was compensation under the Pennsylvania State Employees Retirement Code for purposes of calculating retirement benefits. Although the Department concedes that Beardsley is a statutory construction case, it urges this Court to use the four part test adopted in Beardsley to determine whether a bonus is compensation. In relevant part, this Court stated:
[A] one time payment was a bonus, and thus not included in the computation of compensation where: (1) the employer had no contractual obligation to pay the bonus; (2) the employer did not term the amount "wages"; (3) the employer retained unfettered discretion in deciding whether it would be paid; (4) there was no objective method of calculating how large the bonus would be; and (5) the bonus represented a relatively small fraction of the claimant's total income from his employment.
Beardsley, 691 A.2d 1016, 1020. The Department contends that because there is no evidence in the record to support the first four prongs, the bonuses cannot possibly be considered compensation.
[7] Even so, PIBH offers compelling authority to support the proposition that compensation, or "wages," is a concept broad enough to encompass bonus and severance. See infra. p. 714.
[8] At oral argument before the Court, the Department explained that it did not contend this was a failure of proof but a failure to attribute the costs to "work completed" during the contract. Upon further questioning, however, it could not explain why it reimbursed costs for employees' paid vacations as an "actual costs for work completed" but distinguished and disallowed costs attributed to accrued but unused vacation time.
[9] Indeed, the invoice form could be the device for PIBH to abuse its rights under the Agreement. For example, PIBH could purchase a home for a manager simply by itemizing that expense in the "indirect labor" invoice.
[10] This is somewhat contradictory to the Department's claim that "actual costs for work completed" is clear and unambiguous.
[11] Although Department frames its argument as a lack of meeting of the minds, it appears, instead, to argue mistake. In any case, a party's failure to anticipate all possible repercussions of a bargained for contract is insufficient to render a contract invalid. Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990) (contracting parties are normally bound by their agreements, without regard to whether terms thereof were read and fully understood and irrespective of whether agreements embodied reasonable or good bargains). See generally, 12 P.L.E.2d Contracts §§ 82, 83, 84 (2001) (discussing Mistake, Signing in Ignorance of the Contents, and Mutual Mistake). Further, "[a] party bears the risk of a mistake when ... (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient." RESTATEMENT (SECOND) CONTRACTS § 154 (1981). The Department tries to place the onus on PIBH for not informing Department of its intent to pay its employees bonus and severance payments. However, the Department failed to communicate to PIBH about its expectations for the components of "direct labor" and "indirect labor" costs. This is a unilateral mistake, and because it was not caused by the opposing party, i.e., PIBH, no relief is appropriate. Welsh v. State Employees' Retirement Board, 808 A.2d 261 (Pa.Cmwlth.2002) (unilateral mistake which is not caused by the fault of the opposing party affords no basis for relief).
The Department asserts no authority for its position that in the absence of a meeting of the minds, its construction of "actual costs for work completed" prevails. A meeting of minds is required in order for an enforceable contract to exist. It is not a principle of law that is invoked when the question is one of contract construction.
[12] Notably, in the Specifications, PIBH was obligated to establish an "employee recognition and progressive discipline plan." R.R. 174a. A bonus is a time-honored means of recognizing service.
[13] The purpose of this liberal policy is to give parties the full opportunity to plead their cause of action and not turn them out of court for technical errors, for it is always desirable to dispose of litigation on the merits when possible. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 244, 431 A.2d 237, 240 (1981) (quoting Arner v. Sokol, 373 Pa. 587, 592, 96 A.2d 854, 856 (1953)).
[14] Amendments adding new causes of action after the statutes of limitations have run are prejudicial to defendants because they subject them to claims without permitting them to raise the statute of limitations defense, which would otherwise be available to them. Hodgen v. Summers, 382 Pa.Super. 348, 555 A.2d 214, 216 (1989).
[15] The Department's position would clog the Board's filing office for no good reason. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264332/ | 886 A.2d 256 (2005)
COMMONWEALTH of Pennsylvania, Appellee,
v.
David BROWN, Appellant.
Superior Court of Pennsylvania.
Argued April 26, 2005.
Filed October 24, 2005.
*257 Jennifer Horvath, Marissa B. Bluestine, Philadelphia, for appellant.
Hugh J. Burns, Jr., Asst. Dist. Atty. and Anne Palmer, Asst. Dist. Atty., Philadelphia, for Com., appellee.
BEFORE: LALLY-GREEN, PANELLA, JJ., and McEWEN, P.J.E.
OPINION BY LALLY-GREEN, J.:
¶ 1 Appellant, David Brown, appeals from the judgment of sentence entered on April 15, 2004. We reverse.
¶ 2 The trial court stated the factual and procedural history as follows:
On June 21, 2003, the defendant, David Brown, was arrested and charged with Attempted Burglary, Attempted Theft by Unlawful Taking and Criminal Trespass. On February 2, 2004, the defendant waived his right to a jury trial and this court heard his trial. The defendant was found guilty of Attempted Burglary and was sentenced on April 15, 2004 to 40 to 80 months incarceration, followed by three years reporting probation.
On April 28, 2004, the defendant filed this appeal and on May 13, 2004, the defendant filed a Preliminary Statement of Matters Complained of on Appeal.
Trial Court Opinion, 11/30/04, at 1 (citation omitted).
¶ 3 Further facts reflect that, in its Information, the Commonwealth charged Appellant with Attempted Burglary. The Information specifically states that the Commonwealth charged that Appellant "attempted to enter a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, the premises not being open to the public at the time and the actor not being licensed or privileged to enter." The Information then stated the specific intended crime was "theft."
¶ 4 The trial court acquitted Appellant of the attempted theft charge. N.T., 2/2/2004, at 43. The trial judge found insufficient evidence that Appellant intended to commit a "theft" inside the residence(s). Id. The trial court, thus, found insufficient evidence that Appellant had the intent to steal.
¶ 5 As reflected above, the trial court found Appellant guilty of one count of attempted burglary. The court reasoned that there was sufficient evidence that Appellant attempted to enter a home with the intent to commit some crime therein, even if the particular crime was unclear. N.T., 2/2/2004, at 44-45. On April 15, 2004, the *258 court sentenced Appellant on the attempted burglary charge. This appeal followed.[1]
¶ 6 Appellant raises the following issues on appeal:
1) Was not the evidence insufficient as a matter of law to convict appellant of attempted burglary after the trial court found appellant did not have the specific intent to commit a theft, the specifically charged predicate crime of the burglary?
2) Was not the evidence insufficient to support the verdict of guilty of attempted burglary where appellant was convicted of attempted burglary at 2912 Ogden Street while all of the evidence presented concerned an apparent attempt to enter a different house?
Appellant's Brief at 3.
¶ 7 The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, sufficient evidence exists to enable the fact finder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Vetrini, 734 A.2d 404, 406-407 (Pa.Super.1999). Additionally, it is not our role to weigh the evidence or to substitute our judgment for that of the fact finder. Id. When the court is sitting as the finder of fact, it is presumed that inadmissible evidence is disregarded and that only relevant and competent evidence is considered. Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368, 1371 (1992).
¶ 8 Appellant first claims that the evidence was insufficient to sustain his conviction of attempted burglary. The Crimes Code defines burglary in pertinent part as follows:
§ 3502. Burglary
(a) Offense defined. A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
18 Pa.C.S.A. § 3502. A person commits an attempt when he does any act which constitutes a substantial step toward the commission of that crime with the intent to commit the specific crime. 18 Pa.C.S.A. § 901(a).
¶ 9 Appellant challenges that the evidence was insufficient only with respect to the intent element of burglary. Appellant reasons that since the trial court found him not guilty of attempted theft, the trial court concluded that Appellant did not have the requisite intent to steal. Thus, Appellant argues, if the intent element was missing for attempted theft, it was also missing for attempted burglary. Therefore, the evidence was insufficient to support the attempted burglary conviction.
¶ 10 Appellant has a refined argument. He does not argue that he cannot be found guilty of attempted burglary if he is acquitted of attempted theft. Rather, Appellant argues that if the Commonwealth charged him in the information with attempted burglary, and further specified what crime he intended to commit inside the residence, here "theft," then the Commonwealth must prove beyond a reasonable doubt that Appellant intended to commit that specific crime, or the burglary charge must fail.
¶ 11 Appellant cites Commonwealth v. Jacobs, 247 Pa.Super. 373, 372 A.2d 873 *259 (1977), in support of his position. In Jacobs, a police officer was stationed inside a vacant apartment during a stake-out of those premises. The defendant entered the locked apartment late one evening, carrying a screwdriver. He was immediately arrested by the officer and was charged with entry without permission with the intent to commit the crime of theft. Following his conviction of burglary, this Court reversed the burglary conviction because the Commonwealth had failed to prove defendant's intent to commit a theft at the time of entry and that his mere entrance into an occupied premise was not sufficient. Id., 372 A.2d at 876. The Jacobs Court specifically stated:
Appellant's indictment charged him with entry without permission into an apartment with the intent to commit the crime of theft therein. It is axiomatic that in criminal trials the proof offered up by the Commonwealth must measure up to the charge made in the indictment. Therefore, Appellant could insist that the Commonwealth prove he entered the apartment with the intent to commit a theft.
Id., 372 A.2d at 875 (emphasis in original).
¶ 12 In a subsequent case the same year, Jacobs was distinguished in an en banc decision, Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979) (en banc). In Morgan, we stated:
Appellant's best case is probably Commonwealth v. Jacobs, 247 Pa.Super. 373, 372 A.2d 873 (1977), where the facts were as follows. The police were conducting a stakeout in a recently vacated apartment, which contained only a refrigerator, stove, and sink. The arresting officer, hiding inside a closet of the apartment, heard metal scraping metal, outside the apartment door. A few minutes later, the defendant entered with a screwdriver in his pocket, and was arrested. This court reversed on the ground that the evidence was insufficient to prove intent to commit theft. Jacobs, however, cannot be extended beyond its facts. The apartment there had been recently vacated by its tenant, and this presented the Commonwealth with an insoluble dilemma. On the one hand, if the Commonwealth argued that the defendant had no knowledge that the apartment was vacant, but thought it occupied, it would be hard pressed to explain the defendant's lack of caution in effecting entry. The defendant was unarmed, and it was 10:40 P.M., when he might reasonably expect the tenants to be awake and at home, and yet he made no attempt to see if the apartment was occupied. On the other hand, if in order to explain the defendant's lack of caution the Commonwealth argued that the defendant knew the apartment had been vacated, it would be hard pressed to explain what the defendant intended to steal, inasmuch as there was nothing in the apartment that a single individual, without special tools, could have stolen. See Commonwealth v. Madison, supra [, 263 Pa.Super. 206, 397 A.2d 818 (1979)]. Here, the evidence involved no such dilemma. The evidence did not show that appellant entered incautiously, but instead that before attempting entry he took pains to ensure that no one was at home. In addition, there was evidence supporting the inference that appellant believed the house contained items of value that he could steal.
Id., We observe also that, although the Morgan Court distinguished Jacobs on its facts, the Morgan Court echoed the legal conclusion of the Jacobs Court:
[T]he Bill of Indictment in this case charges Appellant with attempted burglary with intent to commit theft. Accordingly, the Commonwealth was *260 required to prove that Appellant attempted entry with the intent to commit theft.
Id., 401 A.2d at 1186.
¶ 13 Here, as in both Jacobs and Morgan, the Commonwealth specifically charged, in its Indictment or Information, the defendant with intent to commit theft inside a residence. The trial court found insufficient evidence that Appellant intended to commit a "theft" inside the residence(s), stating:
That's why I didn't find him guilty of attempted theft because if I felt that he was going in there ... to steal, I would have found him guilty of the attempted theft.
N.T., 2/2/2004, at 43. The trial court, thus, found insufficient evidence that Appellant had the specific intent to steal. We will not disturb this determination as it is not our role to weigh the evidence or to substitute our judgment. Vetrini. Because the Commonwealth had the burden of proving specific intent to commit theft, and because the trial court found insufficient evidence that Appellant intended to commit a "theft," Appellant cannot be convicted of attempted burglary. Jacobs. We are constrained to conclude that Appellant's claim has merit.[2]
¶ 14 We do note that the Commonwealth is not required to specify what crime a defendant, who is charged with burglary (or attempted burglary), was intending to commit. Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981). Further, the Commonwealth need not prove the underlying crime to sustain a burglary conviction. Commonwealth v. Lease, 703 A.2d 506 (Pa.Super.1997) (burglary conviction affirmed where defendant was acquitted of the underlying crimes of theft and receiving stolen property because the factfinder could have determined that the defendant entered the residence with the intent to steal but did not consummate the theft after entry.) See also, Commonwealth v. Alston, 539 Pa. 202, 651 A.2d 1092, 1095 (1994) (Commonwealth is not required to allege or prove what particular crime the defendant intended to commit after entry into a residence.)
¶ 15 When the Commonwealth does specify, in the information or indictment, the crime defendant intended to commit, the Commonwealth must prove the requisite intent for that particular crime in order to prove a burglary or attempted burglary. Von Aczel; Jacobs; Morgan. In a footnote in his dissent in Jacobs, Judge Price noted that the Commonwealth could have avoided the problem simply by declining to specify what crime the defendant intended to commit in the house. Id. at 877 n. 1. We are constrained to agree. See also, Commonwealth v. Magliocco, 806 A.2d 1280 (Pa.Super.2002) (where Ethnic Intimidation statute makes clear that conviction of the underlying offense is an essential element of grading the substantive offense, if the defendant has been acquitted of the underlying or "other" offense, the crime of Ethnic Intimidation logically can not be graded and his conviction must be reversed), affirmed, ___ Pa. ___, 883 A.2d 479, 491 n. 10 (2005).
¶ 16 Judgment of sentence reversed. Jurisdiction relinquished.
NOTES
[1] On November 10, 2004, Appellant filed a Supplemental Statement of Matters Complained of on Appeal. The trial court filed an opinion on November 30, 2004.
[2] Because of the nature of our disposition, we do not address Appellant's second issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264341/ | 886 A.2d 240 (2005)
Frederick S. and Lynn SUMMERS, h/w, Appellants
v.
CERTAINTEED CORPORATION and Union Carbide Corporation, Appellees.
Richard Nybeck, Appellant
v.
Union Carbide Corporation, Appellee.
Superior Court of Pennsylvania.
Argued March 9, 2005.
Filed August 25, 2005.
*241 Before: HUDOCK, FORD ELLIOTT, JOYCE,[*] ORIE MELVIN, KLEIN, BENDER, BOWES, GANTMAN and PANELLA, JJ.
PER CURIAM ORDER
The Court, being evenly divided, the Order of the Court of Common Pleas is affirmed.
Opinion in Support of Affirmance by KLEIN, J. Judges HUDOCK and GANTMAN join; Judge ORIE MELVIN concurs in the result.
Opinion in Support of Reversal by PANELLA, J. Judges FORD ELLIOTT, BENDER and BOWES join.
Judge JOYCE recused from participation.
OPINION IN SUPPORT OF AFFIRMANCE BY KLEIN, J.
¶ 1 Plaintiffs Frederick Summers[1] and Richard Nybeck appeal from the orders *242 of the Honorable Norman Ackerman[2] granting summary judgment in favor of the asbestos defendants and against them in their claims for asbestos-related injuries. Judge Ackerman held that because the plaintiffs both had significant lung diseases from smoking and other causes, it was impossible to find that asbestos exposure caused any functional impairment or disability, and granted summary judgment. We agree and affirm.[3]
¶ 2 The present rules for recovery in asbestos cases were established first by this Court in Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), and affirmed by the Pennsylvania Supreme Court in Simmons v. Pacor, 543 Pa. 664, 674 A.2d 232 (1996). The Giffear principle is that because a plaintiff can return to court if a physical impairment later develops from an asbestos condition, the mere showing that there have been changes due to asbestos exposure absent functional impairment or disability does not trigger recovery. The impact of Giffear is that when faced with a flood of claims of injury from asbestos exposure, the trial courts can concentrate on the people who are presently sick from asbestos and defer the cases of those persons who so far have no illness or impairment from their asbestos exposure.
¶ 3 Although the technical result is that summary judgment has been granted, the determination is that there is no presently compensable asbestos related disease. However, if asbestos exposure later develops into a diagnosable asbestos-related injury, plaintiffs such as Mr. Nybeck and Mr. Summers can return to court.
¶ 4 This somewhat unique procedure has evolved in the relatively unique body of cases involving asbestos-related injury claims. Asbestos-related disease has a long latency period and often first manifests itself in diagnosable but asymptomatic x-ray findings. Given the peculiarities of asbestos-related disease and the volume of asbestos-related cases filed this procedural solution, while unorthodox, is highly practical. Therefore, this decision is applicable only to asbestos-related cases and not to summary judgment cases in general.
¶ 5 Essentially, plaintiffs ask this Court en banc to overrule the panel decision in Quate v. American Standard, Inc., 818 A.2d 510 (Pa.Super.2003). In Quate, this Court affirmed the trial court's grant of summary judgment in favor of defendants when a plaintiff's "multiple medical conditions made it impossible to causally relate his shortness of breath to any particular asbestos-related medical condition." We find that the Quate Court thoroughly analyzed the "Giffear" line of cases and reached the proper decision consistent with the Pennsylvania Supreme Court's reasoning in Simmons.
¶ 6 Like the present plaintiffs, Mr. Quate "suffered from several medical conditions that could account for his breathlessness." As Judge Johnson said:
In light of Quate's testimony and medical history, we are constrained to conclude that the record does not substantiate the existence of any discernible physical symptoms or functional impairment as a result of Quate's asbestos-related conditions such as to raise a *243 question of material fact. [Emphasis supplied.]
Quate, 818 A.2d at 514.
¶ 7 As this Court said in Giffear, "It would hardly be fair to compensate [Mr. Giffear] for something that has yet to manifest itself into a functional impairment. If and when such impairment does occur, Mr. Giffear may then bring an action for damages. Until that time, however, he is without a legally cognizable claim; there is, at this point, no legal injury." 632 A.2d at 888.
¶ 8 In Taylor v. Owens-Corning Fiberglas Corp., 446 Pa.Super. 174, 666 A.2d 681, 687 n. 2 (1995), this Court, noting that all of the plaintiffs were smokers, pointed out:
Shortness of breath alone is not a compensable injury under Giffear v. Johns-Manville Corp., supra., because it is not a discernible physical symptom, a functional impairment, or a disability. It is common knowledge that breathlessness is also associated with any number of non-asbestos-related ailments including lung cancer, excessive smoking, heart disease, obesity, asthma, emphysema and allergic reactions.
¶ 9 In ascertaining whether Judge Ackerman abused his discretion, it is not enough to blindly follow the language of the experts hired by plaintiffs. It is not the expert who makes the ultimate decision but the judge by reviewing the entire record. In this case, the experienced judge reviewing the record is not a judge that needs an explanation on the record of each element of the asbestos litigation jargon. A judge experienced in the asbestos litigation will know that a "PFT" is a pulmonary function test, and will know the difference between an obstructive (cigarette caused) disease and a restrictive (asbestos caused) disease without having it spelled out in each expert report. It is true that those unfamiliar with asbestos cases might have difficulty determining whether a standard phrase a doctor retained in innumerable asbestos cases is supported by the record or not. However, a judge supervising the asbestos litigation will develop expertise in understanding the language so that he or she will be able to understand the record without the need to define the terms in every individual case.
¶ 10 In all kinds of litigation, lawyers and judges develop expertise and knowledge of the vernacular used in the field and the effect of that language. For example, a judge in personal injury litigation evaluating an expert report will know that when a doctor finds "spasm," that is an objective symptom and not dependent on believing what a patient says. In family law, "marital property" has a special meaning not fully understood by many lawyers, but known to family court judges and lawyers. Criminal lawyers in Pennsylvania all know what is meant by "PCRA" or "ARD," although others not familiar with criminal law might need it explained. The same thing is true in asbestos litigation. Lawyers and judges dealing with the medical terms every day soon come to know them and their effect and meaning. In evaluating whether a trial judge abused his or her discretion, we must recognize that the judge will have specialized knowledge of the terms involved in the case in general and expert reports in particular.
¶ 11 With respect to these plaintiffs, we do not believe that Judge Ackerman has abused his discretion but instead believe he made a reasoned judgment based on his evaluation of the entire record.
I. Frederick S. Summers
¶ 12 With respect to Mr. Summers, the plaintiff's expert witness, Jonathan L. Gelfand, M.D., only says that Mr. Summers *244 has "asbestos pleural disease" which has been stable for a number of years. However, although Dr. Gelfand uses the term "pleural disease," in asbestos litigation that term is synonymous with "pleural thickening," and normally causes no symptoms. As noted in Simmons, "asymptomatic pleural thickening is not a compensable injury which gives rise to a cause of action." 674 A.2d at 232.
¶ 13 At the same time, Mr. Summers has significant obstructive disease from his long history of cigarette smoking. Just as in Quate, Judge Ackerman found that because pleural thickening is asymptomatic and due to Mr. Summers' litany of other problems, it was impossible to say that any discernable symptoms were attributable to asbestos.
¶ 14 In his report, Dr. Gelfand lists the medical problems from which Mr. Summers suffers other than from asbestos in light of his significant smoking history and other problems:
(a) he was 64 years old at the time;
(b) he was 5'8" tall and weighted 235 pounds;
(c) he had a 40-pack year cigarette smoking history;[4]
(d) he had moderately severe, chronic obstructive lung disease [which all in asbestos litigation know is a disease that results from smoking, not asbestos exposure]; and
(e) he had asthma.
Gelfand Report, 6/25/03 at 2.
¶ 15 Dr. Gelfand's report in this case uses legal terminology to attempt to reach the ultimate issue to be decided by a jury at trial and, on summary judgment, by the court. He uses the "magic words" as follows:
In my opinion, to a reasonable degree of medical certainty, exposure to asbestos in the workplace is the cause of the asbestos pleural disease and is a substantial contributing factor to his diffusion abnormality and to his dyspnea on exertion. Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted.
Id. at 3.
¶ 16 Just because a hired expert makes a legal conclusion does not mean that a trial judge has to adopt it if it is not supported by the record and is devoid of common sense. For example, Dr. Gelfand used the phrase, "Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted." However, suppose an expert said that if one took a bucket of water and dumped it in the ocean, that was a "substantial contributing factor" to the size of the ocean. Dr. Gelfand's statement saying every breath is a "substantial contributing factor" is not accurate. If someone walks past a mechanic changing brakes, he or she is exposed to asbestos. If that person worked for thirty years at an asbestos factory making lagging, it can hardly be said that the one whiff of the asbestos from the brakes is a "substantial" factor in causing disease.
¶ 17 For a plaintiff to survive summary judgment, the conclusion of the expert has to be supported by the record. Those familiar with the terms used in the asbestos litigation can review the report and the record and ascertain whether there is anything to support an expert's conclusion.
¶ 18 First, pleural thickening or "pleural disease" does not cause symptoms except in rare cases of entrapment of the lung, *245 clearly not present here. That is what was said by the Pennsylvania Supreme Court in Simmons and by this Court repeatedly. Mr. Summers' x-ray report attached to Dr. Gelfand's report shows no sign of any asbestosis, or disease inside the body of the lung. The pulmonary function tests attached, as described by Dr. Gelfand, reveal "moderately severe airflow obstruction, moderate air trapping and severe reduction in diffusion." While some may need a translation of these terms, a judge experienced in asbestos litigation such as Judge Ackerman understands them. He knows that a diffusion reduction is a general problem with breathing, not specific to either smoking or asbestos exposure. He, as everyone else with experience in the litigation, knows that "moderately severe airflow obstruction," together with air trapping, is a sure sign of the kind of "obstructive" disease that results from smoking, not asbestos exposure. Asbestos disease is a "restrictive," not "obstructive," disease.
¶ 19 Those familiar with asbestos litigation know that a 43% of predicted figure for FEV1 (a measure of an obstructive disease) supports Dr. Gelfand's finding of moderately severe obstructive disease. Likewise, when the TLC (total lung capacity) is 81% of predicted it is known that that is within the normal range. Further, when the RV (residual volume) is 140% of predicted, this shows the lungs are larger than expected, which indicates a smoking disease, rather than being smaller than expected, which is what happens in a restrictive disease such as asbestosis.
¶ 20 However, even without the knowledge of the pulmonary function tests, the Supreme Court and this Court have repeatedly said that absent a showing of anything more than pleural thickening, a plaintiff cannot show any discernible physical symptoms or functional impairment that would justify recovery.
¶ 21 Mr. Summer's circumstances are almost identical to those in Quate, supra. In that case, this Court rejected similar testimony from Dr. Gelfand's partner, Dr. Stanley Altschuler. 818 A.2d at 514. The Quate Court cited Taylor v. Owens-Corning Fiberglas Corp., 446 Pa.Super. 174, 666 A.2d 681, 687 (1995), for the proposition that shortness of breath is not compensable in light of the facts that breathlessness is also associated with numerous non-asbestos related ailments, including lung cancer, excessive cigarette smoking, heart disease, asthma, emphysema and allergic reactions. Mr. Summers has three of those conditions excessive cigarette smoking, asthma, emphysema (a cause of chronic obstructive lung disease).
¶ 22 The Quate Court went on to hold that the trial judge, Judge Alan Tereshko, who preceded Judge Ackerman in supervising the asbestos litigation, was correct when he said that Mr. Quate's long list of medical ailments made it impossible to causally relate Mr. Quate's shortness of breath to any particular medical condition. The same is true in this case. Even were there any discernable symptoms from asbestos, they could not be distinguished from other causes of shortness of breath. If Mr. Summers develops a discernable asbestos-related disease in the future, such as mesothelioma, lung cancer, or symptomatic asbestosis, he can return to court. Presently, however, he cannot show that he has a compensable asbestos condition.
II. Richard Nybeck
¶ 23 The situation with Mr. Nybeck is somewhat different, but essentially the same principles apply. While Mr. Nybeck has some x-ray findings of mild fibrosis in the parenchyma [body] of the lung as well as pleural thickening, his non-asbestos *246 lung problem is considerably worse than Mr. Summers'.
¶ 24 Upon examination, Dr. Gelfand, rather than diagnosing "moderately severe" obstruction, diagnosed Mr. Nybeck with severe obstruction. While Dr. Gelfand found interstitial lung disease, he did not quantify it.[5] Once again, he usurped the role of the fact finder by defining "substantial" his way and saying "Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted."
¶ 25 Moreover, the only functional impairment reported by Dr. Gelfand is dyspnea (shortness of breath), which, on its own, is not a compensable injury due to the fact that it is not disabling and is associated with so many other non-asbestos related ailments. See Taylor, supra; Lonasco v. A-Best, 757 A.2d 367 (Pa.Super.2000).
¶ 26 Again, while unnecessary to the finding, the spirometry of the pulmonary function tests which show obstruction are generally one-third of what would be predicted or lower, justifying the diagnosis of severe obstructive disease. This is not unexpected, since Mr. Nybeck has an 80 pack year[6] smoking history. The lung volumes are greater than predicted, which indicate that there is no significant restrictive element to Mr. Nybeck's problems.
¶ 27 Here, the problems from a long smoking history are very great compared with the problems from asbestos exposure. Dr. Gelfand's report does not say that there are any discernable symptoms from asbestos exposure to distinguish them from the major breathing problems that result from Mr. Nybeck's severe obstructive disease. Judge Ackerman did not abuse his discretion, after viewing all the evidence in a light most favorable to the plaintiff, by finding the plaintiff could not meet his burden of proof. We agree with Judge Ackerman when he said:
Dr. Gelfand's reports chronicle other medical conditions maintained by the plaintiffs, including severe chronic obstructive lung disease, asthma, and a history of cigarette smoking all of which have been associated with breathlessness. It is impossible for this Court to causally relate plaintiffs' shortness of breath to any particular medical condition that plaintiffs have or any physical restriction that they may have. Therefore, pursuant to the line of cases evolving in the field of asbestos litigation, specifically, Giffear and Quate, the Pennsylvania Superior Court has consistently held that asymptomatic asbestos-related diseases do not give rise to a compensable injury where the claimant does not suffer from a discernable physical symptom, a functional impairment or disability causally related to asbestos exposure.
Trial Court opinion, 12/29/03 at 4.
* * * * * *
¶ 28 Neither of the plaintiffs can currently meet his burden of demonstrating *247 that asbestos exposure created impairment or disability beyond the severe breathing problems he has from smoking and other ailments. At this time, summary judgment was properly granted.
¶ 29 Orders affirmed.
¶ 30 The Court, being equally divided, affirms the Orders of the Court below.
¶ 31 HUDOCK and GANTMAN, JJ., join; ORIE MELVIN, J., concurs in the result.
¶ 32 PANELLA, J., files an Opinion in Support of Reversal, in which FORD ELLIOTT, BENDER and BOWES, JJ., join.
¶ 33 JOYCE, J., did not participate in this decision.
OPINION IN SUPPORT OF REVERSAL BY PANELLA, J.:
¶ 1 After a thorough review of the record and all applicable case law, I conclude that Cauthorn v. Owens Corning Fiberglas Corp., 840 A.2d 1028 (Pa.Super.2004) is the most comprehensive discussion of the law regarding the compensability of allegedly asbestos related injuries. As I conclude that summary judgment was inappropriate under Cauthorn, I respectfully dissent.
¶ 2 In Cauthorn, this Court recognized the existence of two poorly integrated lines of precedent on the issue of compensability in asbestos litigation. Cauthorn, 840 A.2d at 1035-1036. Cauthorn recognized that pursuant to one line of cases, all that had been required for compensability was a showing of the following: (1) an asbestos related condition; (2) shortness of breath; (3) a causal connection linking the asbestos related condition to the shortness of breath. Id. at 1036. However, Cauthorn also acknowledged that a separate line of cases had required more than mere shortness of breath. Id. at 1035. These cases required that there be "discernible physical symptoms or functional impairment" in order for an allegedly asbestos related injury to be compensable. Id.
¶ 3 Finally, Cauthorn addressed the applicability of Quate v. American Standard, Inc., 818 A.2d 510 (Pa.Super.2003). The Court noted that Quate, if read expansively, could constitute yet a third test for compensability. The Court in Quate affirmed the grant of summary judgment against an asbestos plaintiff. Some of the prefatory language utilized in Quate could be read to indicate that the presence of any other possible cause of a plaintiff's shortness of breath would act to completely preclude such a plaintiff from recovery in asbestos litigation. However, when the Court turned to applying the law to the facts of the case, it stated that
[t]his court has consistently concluded that asymptomatic asbestos-related diseases do not give rise to a compensable injury where the claimant does not suffer from a discernible physical symptom, a functional impairment, or a disability.
Quate, 818 A.2d at 513 (emphasis added). The Court proceeded to note that the plaintiff's own testimony was that his medical conditions "do not limit his ability to attend to his daily activities." Id. at 514. As a result, the Court was "constrained to conclude that the record does not substantiate the existence of any discernible physical symptoms or functional impairment as a result of [plaintiff's] asbestos-related conditions such as to raise a question of material fact." Id.
¶ 4 By focusing on the actual analysis performed in Quate; Cauthorn wisely eschewed introducing further confusion into the issue of compensability in asbestos litigation. Cauthorn, 840 A.2d at 1037. Accordingly, Cauthorn correctly categorized Quate as falling in the line of cases that had required evidence of discernible symptoms or functional impairment. Id.
¶ 5 I conclude that this Court's exceedingly well-written opinion in Cauthorn represents *248 the true state of the law in this complex area. Dictum in Quate cannot be expanded beyond the scope of the facts before that Court, especially when to do so would represent an enormous re-working of the fundamental law at issue. Rather, as in Cauthorn, I read Quate as merely an extension of the line of cases that required discernible symptoms or functional impairment. Therefore, the most exacting standard required by this Court has been the requirement that a plaintiff establish discernible symptoms or functional impairment in order to present a prima facie case. I express no opinion on whether this standard or the less stringent standard requiring only shortness of breath is the proper standard, as I conclude that the plaintiffs in the present cases have satisfied both.
¶ 6 Applying the more stringent standard to the cases sub judice, it is clear that summary judgment was not appropriate. The trial court granted summary judgment to asbestos defendants after concluding that plaintiffs had failed to present evidence of record sufficient to establish the existence of compensable asbestos-related injury. Trial Court Opinion, 12/29/2003, at 1. In reviewing the grant of summary judgment on such grounds, we must view the record in the light most favorable to the non-moving party. Rudy v. A-Best Products Co., 870 A.2d 330, 333 (Pa.Super.2005). Furthermore, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.
Plaintiff Summers
¶ 7 Plaintiff Summers presented the expert opinion of Dr. Jonathan Gelfand, M.D., a board-certified pulmonary physician. Dr. Gelfand diagnosed Summers with asbestos-related pleural disease which was a cause of Summers's shortness of breath. Importantly, Summers also presented evidence of record capable of establishing that he suffers from functional impairment. In his deposition testimony, Summers testified that he no longer could load or unload his truck, nor could he complete his service calls. Summers was forced to abandon his business because of this impairment. Furthermore, Summers also testified that he could no longer walk, jog, or fish for recreation as he had previously. Viewing this evidence in a light most favorable to Summers, as the non-moving party, it is clear that he has adduced sufficient evidence to survive a motion for summary judgment. I would therefore reverse the trial court's order and remand for further proceedings.
Plaintiff Nybeck
¶ 8 Dr. Gelfand diagnosed Nybeck as suffering from asbestosis and asbestos-related bilateral pleural thickening. Dr. Gelfand opined that these two conditions were factual causes of Nybeck's shortness of breath. Nybeck also presented evidence capable of establishing a functional impairment. At his deposition, Nybeck testified that he could only walk approximately one block before becoming winded. Further, he could only ascend halfway up the steps leading to the elevated railway station. This shortness of breath caused Nybeck to retire, and also curtailed his ability to engage in recreational fishing. Viewing this evidence in a light most favorable to Nybeck, as the non-moving party, it is clear that he also has adduced sufficient evidence to survive a motion for summary judgment.
¶ 9 Therefore in both cases, I would reverse the trial court's order and remand for further proceedings.
¶ 10 FORD ELLIOTT, BENDER and BOWES, JJ., join.
NOTES
[*] Judge Joyce recused from participation.
[1] Frederick Summers' wife, Lynn Summers, is also a plaintiff in a loss of consortium claim. For convenience, Frederick S. Summers and Richard Nybeck will be referred to collectively as "plaintiffs."
[2] Judge Ackerman is the supervising judge of the Philadelphia County complex litigation program, which includes asbestos cases.
[3] This Court will only overturn an order granting summary judgment where the trial court has "committed an error of law or abused its discretion." Wilson v. A.P. Green Industries, Inc., 807 A.2d 922, 924 (Pa.Super.2002).
[4] A "pack year" history is the number of packs a day of cigarettes smoked times the number of years smoked. For example, a 40 pack year history could result from one pack a day for 40 years, or from 2 packs a day for 20 years.
[5] His partner, Dr. Altshuler, read the x-rays for the body of the lung as "1/1." The first number is the final diagnosis, and the second a diagnosis considered and then rejected. A "1" is the lowest positive x-ray finding for asbestos. While a "1/1" is more severe than a "1/0," it is less severe than a "1/2." Therefore, the 1/1 means the doctor was certain, but still found only the lowest grade of asbestosis in the lung parenchyma.
[6] A "pack year" history is the number of packs a day of cigarettes smoked times the number of years smoked. An 80 pack year history could result from two packs a day for 40 years, or from 3 packs a day for 26-2/3rds years, or some other combination of packs per year and years. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264345/ | 886 A.2d 461 (2005)
92 Conn.App. 481
Sebastiano FILECCIA
v.
NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY.
Nos. 25974, 26228.
Appellate Court of Connecticut.
Argued September 15, 2005.
Decided December 6, 2005.
*462 Sebastiano Fileccia, pro se, the appellant-appellee (plaintiff).
Jon Berk, Hartford, with whom, on the brief, was Patty G. Swan, for the appellee-appellant (defendant).
LAVERY, C.J., and BISHOP and McLACHLAN, Js.
Opinion
LAVERY, C.J.
The plaintiff, Sebastiano Fileccia, appeals from the judgment awarding him $6148.48 in damages, rendered by the trial court following a jury trial. The defendant, Nationwide Property and Casualty Insurance Company, also has appealed from the court's judgment. In the first appeal, the plaintiff claims that the court improperly denied his motions to set aside the verdict and for additur because the damages award, which consisted of economic damages but no noneconomic damages, *463 was inconsistent with the evidence. In the second appeal, the defendant claims that the court improperly denied its motion for judgment notwithstanding the verdict because the plaintiff failed to prove his claim for underinsured motorists benefits.[1] We agree with both of the parties' claims and reverse the judgment of the trial court.
The following facts and procedural history are relevant to the appeals. On December 17, 1999, the plaintiff was involved in a motor vehicle accident. The plaintiff was driving northbound on Franklin Avenue in Hartford when another vehicle, traveling westbound on Standish Street, cut out in front of him and the two vehicles collided. The plaintiff sustained injuries and, thereafter, sought and received medical treatment, including physical therapy, from various providers. After receiving a settlement payment of $20,000 from the operator of the other vehicle, which, apparently, exhausted the limits of that operator's insurance coverage,[2] the plaintiff brought this action against the defendant, who is his insurer, seeking underinsured motorists benefits.
In his complaint, the plaintiff alleged that he had suffered multiple injuries in the accident, specifically, a sprain or strain of the lumbar spine, a pinched sciatic nerve causing pain in his left leg, multiple bodily trauma and a herniated L4-L5 disc. He alleged further that those injuries had caused him physical pain and discomfort and had negatively impacted his ability to enjoy life's activities.[3]
In early September, 2004, a jury trial was held at which the plaintiff and the defendant each introduced expert physician testimony regarding the plaintiff's injuries. *464 Extensive medical records of the plaintiff also were introduced, including the results of two computerized axial tomography scans, also known as CT scans. The jury returned a verdict of $6148.48 in economic damages, an amount that represented the exact amount of the medical bills incurred by the plaintiff as a result of the 1999 accident. The jury, however, did not award any noneconomic damages for the plaintiff's alleged pain and suffering and loss of functioning.[4]
On September 9, 2004, the defendant filed a motion for judgment in its favor notwithstanding the jury's verdict. The defendant argued, in essence, that because the damages award did not exceed the amount already received by the plaintiff from the operator of the other vehicle, the plaintiff had failed to prove his claim for underinsured motorists benefits. On October 5, 2004, the plaintiff filed motions to set aside the verdict and for additur, arguing that the damages award was insufficient. The court denied both parties' motions and rendered judgment in favor of the plaintiff, awarding him the damages found by the jury. These appeals followed. Additional facts will be provided as necessary.
I
In the first appeal, the plaintiff claims that the court improperly denied his motions for additur and to set aside the jury's verdict. According to the plaintiff, the jury's award of damages, which awarded all of the economic damages he sought but no noneconomic damages, was inconsistent and contrary to the evidence. He argues additionally that crucial evidence, which the defendant claims provides an adequate basis for the jury's award, was presented to the jury in an incomplete fashion. We agree with the plaintiff and conclude that, under the circumstances of this case, the court's denial of the motions was an abuse of discretion.
We first note our standard of review. "The trial court's refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.... In reviewing the action of the trial court in denying [a motion for additur and] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did." (Internal quotation marks omitted.) Mazzacane v. Elliott, 73 Conn.App. 696, 699, 812 A.2d 37 (2002).
In passing on a motion to set aside a jury verdict, a trial court, like a juror considering the evidence, must draw upon its experience and knowledge of human nature, events and motives and evaluate the verdict in that context. Schroeder v. Triangulum Associates, 259 Conn. 325, 329-30, 789 A.2d 459 (2002). If the court "finds the verdict to be so clearly against the weight of the evidence in the case as to indicate that the jury did not correctly apply the law to the facts in evidence in the case, or [was] governed by ignorance, prejudice, corruption or partiality, then it is his duty to set aside that verdict and to grant a new trial.... The trial judge has a *465 broad legal discretion and his action will not be disturbed unless there is a clear abuse." (Internal quotation marks omitted.) Id., at 330, 789 A.2d 459.
Our Supreme Court has articulated a special standard for the review of verdicts like the one at issue here to determine whether inconsistency renders them legally inadequate. Id. "In Wichers v. Hatch, 252 Conn. 174, 188, 745 A.2d 789 (2000), [the Supreme Court] held that trial courts, when confronted with jury verdicts awarding economic damages and zero noneconomic damages, must determine on a case-by-case basis whether a verdict is adequate as a matter of law." Schroeder v. Triangulum Associates, supra, 259 Conn. at 330, 789 A.2d 459. "Under Wichers, the jury's decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue." (Internal quotation marks omitted.) Id. "The evidential underpinnings of the verdict itself must be examined," albeit with deference to the jury's findings. Wichers v. Hatch, supra, at 189, 745 A.2d 789. "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work [its] will." (Internal quotation marks omitted.) Id.
Applying the foregoing standards, our Supreme Court has held that an award of "virtually all" of a plaintiff's claimed economic damages, with no accompanying noneconomic damages, demonstrated an inconsistency in the verdict; see Schroeder v. Triangulum Associates, supra, 259 Conn. at 332, 789 A.2d 459; although it allowed that in a different case, such an award might be proper. Id., at 334 n. 5, 789 A.2d 459. In Schroeder, the jury found the defendant liable for the costs of the plaintiff's intrusive spinal fusion surgery, but awarded nothing for the pain and permanent disability that necessarily would accompany such a procedure. Id., at 333, 789 A.2d 459. The Supreme Court concluded that the award was incongruous and held that the trial court abused its discretion in failing to set aside the verdict. Id., at 332, 789 A.2d 459.
Additionally, in several cases where jury awards of substantial economic damages with no or little accompanying noneconomic damages were sustained on appeal, evidence had been presented to show that the plaintiff had some preexisting condition. See, e.g., Wichers v. Hatch, supra, 252 Conn. at 177, 745 A.2d 789; Turner v. Pascarelli, 88 Conn.App. 720, 729-30, 871 A.2d 1044 (2005); Schettino v. Labarba, 82 Conn.App. 445, 447, 844 A.2d 923 (2004); Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn.App. 465, 478-79, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). In those cases, it was held that the jury reasonably could have concluded that the prior condition was the cause of the pain alleged, rather than the tortious actions of the defendant. See Wichers v. Hatch, supra, at 189-90, 745 A.2d 789; Turner v. Pascarelli, supra, at 730, 871 A.2d 1044; Schettino v. Labarba, supra, at 449-50, 844 A.2d 923; Daigle v. Metropolitan Property & Casualty Ins. Co., supra, at 479, 760 A.2d 117. Compare Elliott v. Larson, 81 Conn.App. 468, 840 A.2d 59 (2004) (court properly granted additur when jury awarded plaintiff economic damages of all medical expenses and lost wages claimed but no noneconomic damages, and no evidence presented that preexisting condition caused plaintiff's pain).
*466 In the present case, the jury awarded the plaintiff $6148.48, an amount representing all of his medical expenses and the entire amount of economic damages sought. An itemized list of the charges comprising that total was submitted as an exhibit at trial along with corresponding invoices. The list includes, in addition to charges for the plaintiff's initial hospital visit, radiology services and doctors' visits, separate charges for physical therapy and pain medications.
The physical therapy records, which cover eighteen appointments in March through May, 2000, consistently report both the plaintiff's subjective complaints of pain and the objective manifestations thereof as noted by the therapists. Treatments to reduce pain and muscle spasms, and to improve strength and mobility, also are indicated. Little to no improvement is noted throughout the plaintiff's treatment, with the exception of his final appointment when moderate improvement is indicated. At trial, although evidence of subsequent injuries sustained by the plaintiff in 2001 and 2002 was introduced, there was no evidence that he suffered from any preexisting conditions prior to the 1999 accident at issue in this case.
We conclude that under the circumstances, the jury's award of economic damages and no noneconomic damages is internally inconsistent and ought to have been set aside. In finding that the plaintiff, by virtue of the accident, had suffered an injury requiring treatments and medication, the purpose of which was to alleviate pain and to improve functioning, the jury necessarily found that he had experienced pain and decreased functioning. Accordingly, it should have awarded noneconomic damages to compensate him for that pain and decreased functioning. Moreover, insofar as there was no evidence suggesting that the plaintiff had any preexisting conditions, the jury could not have reasonably attributed these problems to a cause other than the accident.
The defendant argues that the jury properly could have credited evidence that undermined the plaintiff's claims of pain and dysfunction, mainly, the testimony of Edward Fredericks, a neurologist who conducted an independent medical evaluation of the plaintiff and testified for the defense.[5] Contrary to the opinions of four physicians who had treated or examined the plaintiff following the 1999 accident and who, relying on the results of a March 8, 2000 CT scan, diagnosed him with a herniated L4-L5 disc,[6] Fredericks opined that the plaintiff in fact had not suffered that injury and, in short, was malingering. In support of his opinion, Fredericks cited a second CT scan performed on July 3, 2002, that reportedly showed no evidence of disc herniation. The defendant notes also that the plaintiff's orthopedist, Michael P. Kruger, when questioned about the apparent discrepancy between the March 8, 2000 and July 3, 2002 CT scan results, was unable to explain it. According to the plaintiff, however, the results of the later CT scan were presented to the jury in an incomplete and misleading way. After a review of the *467 July 3, 2002 CT scan and the testimony at issue, we conclude that the plaintiff is correct and that it is likely that the manner in which this evidence was presented was confusing to the jury.
The July 3, 2002 CT scan report includes three paragraphs describing the results of the scan as to three different regions of the plaintiff's spine. Technical medical terminology is utilized, necessitating explanation from an expert. The first paragraph concerns L2-L3 and L3-L4; the second paragraph concerns L4-L5; and the third paragraph concerns L5-S1. The first and third paragraphs, but not the second, include the observation, "There is no evidence of disc herniation."[7] It is clear from the transcripts of the testimony of Kruger and Fredericks that the defendant's counsel, when questioning the physicians about the report, directed them to the paragraph discussing L2-L3 and L3-L4 rather than the one discussing L4-L5, the region at issue in this case. That the jurors were influenced by this evidence, and likely confused, is apparent from the fact that while they were deliberating they sent notes to the court requesting to see Kruger's testimony, as well as the results of the July 3, 2002 CT scan.
We recognize that "[t]he existence of conflicting evidence limits the court's authority to overturn a jury verdict [and that] [t]he jury is entrusted with the choice of which evidence is more credible and what effect it is to be given." (Internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 116, 663 A.2d 398 (1995). In this case, however, the plaintiff offered substantial evidence that he had suffered a pain producing injury, and the only significant countervailing evidence presented by the defendant to refute it was the testimony of Fredericks, which was tainted by the misleading portrayal of the July 3, 2002 CT scan, and the inability of the plaintiff's physician to explain the supposed discrepancy between the two CT scans. Given that circumstance and the inconsistency in the verdict previously described, we conclude that the court's denial of the plaintiff's motions for additur and to set aside the verdict was an abuse of discretion.[8]
II
In the second appeal, the defendant claims that the court improperly denied its motion for judgment notwithstanding the verdict. It argues that because the jury awarded the plaintiff only $6148.48 in damages, an amount that is less than the $20,000 he already had received in settlement from the tortfeasor, he failed to prove his claim for underinsured motorists benefits. We agree.
As previously mentioned, the plaintiff, before bringing this action against the defendant, received $20,000 in settlement from the operator of the other vehicle in *468 the 1999 accident, apparently exhausting the limits of that operator's insurance coverage. Prior to trial, the parties stipulated to the fact of this payment and agreed further that any amount awarded to the plaintiff in the present action would be offset by the $20,000 payment.[9] The court's judgment, however, does not reflect this offset and states in conclusion that "it is adjudged that the plaintiff recover of the defendant $6148.48 in damages." The court denied the defendant's motion for judgment notwithstanding the verdict, wherein the defendant recounted the parties' stipulation and requested that the verdict be reduced to zero damages and that judgment be rendered in its favor.[10]
Typically, "[a]ppellate review of a trial court's refusal to render judgment notwithstanding the verdict occurs within carefully defined parameters. We must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial.... This standard of review extends deference to the judgment of the judge and the jury who were present to evaluate witnesses and testimony.... Judgment notwithstanding the verdict should be granted only if we find that the jurors could not reasonably and legally have reached the conclusion that they did reach." (Internal quotation marks omitted.) Parker v. Slosberg, 73 Conn.App. 254, 263, 808 A.2d 351 (2002). In some contexts, however, the court may render judgment notwithstanding the verdict "when the decisive question is one of law or when the claim is that there is insufficient evidence to sustain a favorable verdict." This is the case here, where there is no indication that the jury was aware of the $20,000 payment or was asked to take it into consideration when awarding damages.[11] "When there is a question of law, our review of the court's decision is plenary." Florian v. Lenge, 91 Conn.App. 268, 281, 880 A.2d 985 (2005).
The issue of offset in a case brought to secure underinsured motorists benefits, where the damages ultimately awarded by a jury do not exceed payments already *469 received by the plaintiff from the tortfeasor, has been addressed by this court on at least two occasions. See Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 792 A.2d 132 (2002); Fahey v. Safeco Ins. Co. of America, 49 Conn.App. 306, 714 A.2d 686 (1998). In Fahey, an injured plaintiff received $100,000 from the tortfeasor and then brought an action seeking underinsured motorists benefits. Fahey v. Safeco Ins. Co. of America, supra, at 307, 714 A.2d 686. The jury returned a verdict on the issue of damages in the amount of $90,064.77. Id., at 308, 714 A.2d 686. The trial court concluded that due to the $100,000 recovery, the plaintiff already had received compensation in excess of his actual damages. Id. The plaintiff thus had failed to prove his claim for underinsured motorists benefits and, therefore, the court rendered judgment in the defendant insurer's favor. Id.
Similarly, in Hunte, an injured plaintiff received a total of $27,822.60, consisting of $20,000 from the tortfeasor and $7822.60 in basic reparations payments from her insurer. Hunte v. Amica Mutual Ins. Co., supra, 68 Conn.App. at 536, 792 A.2d 132. After the insurer denied her claim for additional compensation under the underinsured motorists provision of the policy, she brought an action for, inter alia, breach of contract. Id. After a trial on that claim, the jury returned a verdict in favor of the plaintiff and awarded damages of $19,405. Id. Thereafter, the trial court granted the defendant's motion for judgment notwithstanding the verdict, wherein it had been argued that the jury award was less than the amount the plaintiff already had received and, therefore, the defendant was entitled to judgment in its favor pursuant to Fahey. Id., at 536-37, 792 A.2d 132.
In both cases, we upheld the trial court's ruling on appeal; id., at 539, 792 A.2d 132; Fahey v. Safeco Ins. Co. of America, supra, 49 Conn.App. at 312, 714 A.2d 686; reasoning that the effect of the court's decision was to prevent the plaintiff from receiving a double recovery. We explained that "[t]he purpose of underinsured motorist coverage is to protect the named insured ... from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile. [Fahey v. Safeco Ins. Co. of America, supra, at 309, 714 A.2d 686]. See also General Statutes § 38a-336. Its purpose ... is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured.... [U]nderinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor...." (Internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., supra, at 538, 792 A.2d 132.
The same result is warranted here. Insofar as the plaintiff already had received $20,000 for injuries that later were determined to be compensable in the amount of only $6148.48, the effect of a judgment for $6148.48 is to provide for additional, duplicate recovery to the plaintiff. Although we acknowledge the court's reliance on the parties' understanding, by virtue of their stipulation, that the plaintiff would not actually receive an additional payment from the defendant; see footnote 10; we think the better practice is that a judgment accurately reflect any offset due as the result of payments already received from the tortfeasor or elsewhere. This is especially important in cases such as this one, where the parties' stipulation was not reduced to writing and the record does not otherwise include its precise terms. See footnote 9. Moreover, without an explicit offset reducing the verdict to zero, a judgment in the plaintiff's favor remains. Regardless of whether that judgment is to be satisfied, it indicates that the plaintiff is *470 the prevailing party for purposes of costs; see Russell v. Russell, 91 Conn.App. 619, 630-31, 882 A.2d 98 (2005); although he in fact did not succeed in proving his claim for underinsured motorists benefits. See Fahey v. Safeco Ins. Co. of America, supra, 49 Conn.App. at 312, 714 A.2d 686.
In sum, the court's denial of the plaintiff's motions for additur and to set aside the verdict was improper because the verdict was internally inconsistent and likely based on misleading expert testimony, and the court's denial of the defendant's motion for judgment notwithstanding the verdict was improper because the plaintiff, having been awarded damages in an amount less than what he already had received from the tortfeasor, failed to prove his claim for underinsured motorists benefits. Upon remand, therefore, the court should determine a reasonable additur for noneconomic damages and give the parties an opportunity to accept the additur. If the parties do not accept the additur, a new trial as to damages should be held. If the amount of damages accepted by the parties after an additur or awarded by a jury after a new trial exceeds $20,000, the court should apply a $20,000 offset to the damages award and render judgment for the plaintiff in the amount of the difference. If the amount of damages accepted by the parties after an additur or awarded by a jury after a new trial does not exceed $20,000, the court should reduce the damages award to zero and render judgment in favor of the defendant.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
NOTES
[1] The jury verdict was returned on September 3, 2004. The defendant filed its motion for judgment notwithstanding the verdict on September 9, 2004, and the plaintiff filed his motions to set aside the verdict and for additur on October 5, 2004. At a hearing held on October 12, 2004, the court heard argument on the plaintiff's motions, but deferred argument on the defendant's motion. The court indicated that it considered the defendant's motion unnecessary, given the parties' stipulation that a verdict such as the one returned by the jury would result in no payment from the defendant to the plaintiff. See part II. On November 2, 2004, the court denied the plaintiff's motions and rendered judgment on the jury's verdict. The plaintiff filed his appeal on November 12, 2004.
On December 21, 2004, the defendant filed a motion to open the judgment, claiming that the court had not ruled on its motion for judgment notwithstanding the verdict. At a January 13, 2005 hearing, the court reiterated its view that the defendant's motion for judgment notwithstanding the verdict was superfluous. Nevertheless, it granted the motion to open and explicitly denied the motion for judgment notwithstanding the verdict. The defendant then filed a separate appeal on January 28, 2005.
Normally, an appeal filed prior to a ruling on a motion for judgment notwithstanding the verdict would be premature, as the judgment is not yet final. See Tough v. Ives, 159 Conn. 605, 268 A.2d 371 (1970). Here, however, given the court's rendering of judgment in favor of the plaintiff on November 2, 2004, and its comments indicating that it considered a ruling on the defendant's motion for judgment notwithstanding the verdict unnecessary, we conclude that the court effectively denied the motion prior to the plaintiff's filing his appeal. See Ahneman v. Ahneman, 243 Conn. 471, 480, 706 A.2d 960 (1998) (court's explicit refusal to consider post judgment motions effectively was denial of those motions). Furthermore, although the court thereafter opened its judgment, because the judgment was not altered, the plaintiff's appeal was not rendered moot. See id., at 483, 706 A.2d 960.
[2] Prior to trial, the parties stipulated to the fact of that payment.
[3] The plaintiff also alleged that he had suffered lost wages but ultimately did not pursue his claim. The record indicates that the plaintiff continued to work following the accident, although in a different position.
[4] General Statutes § 52-572h (a)(1) defines economic damages as "compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages," and General Statutes § 52-572h (a)(2) defines noneconomic damages as "compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering...."
[5] Fredericks was retained by another insurance carrier to conduct an independent medical examination focusing on injuries sustained by the plaintiff in a later accident. He examined the plaintiff once, on January 13, 2003, and at that time did not have any of the medical records concerning the plaintiff's 1999 accident.
[6] The results of the March 8, 2000 CT scan, as well as reports from orthopedic specialist Michael P. Kruger, neurosurgeon Arnold J. Rossi, internist Murray I. Wellner and orthopedic surgeon Gerald J. Becker, opining that the plaintiff suffers from pain from a ruptured or herniated L4-L5 disc from the 1999 accident, were submitted into evidence.
[7] The second paragraph reads as follows: "There is a prominent bulge of the annulus at L4-L5. There is no evidence of lateralization. There are moderate degenerative changes of the facet joints and the ligamenta flava are thickened. There is a borderline to slight acquired central spinal stenosis at L4-L5. There is no evidence of foraminal stenosis." Although this court, like a lay jury, is not qualified to interpret the foregoing language, we note that a follow-up report from orthopedic surgeon Gerald J. Becker, which is among more than 200 pages of medical evidence submitted into the record, states, inter alia, that "[a] CT scan of 03/08/2000 demonstrates a moderately large left L4-5 disk herniation. A repeat scan of 07/03/2002 demonstrates a more broad-based central herniation at L4-5." (Emphasis added.)
[8] We are aware of this court's recent decision in the case of Smith v. Lefebre, 92 Conn.App. 417, 885 A.2d 1232 (2005), but maintain that under the case-by-case analysis mandated by Wichers v. Hatch, supra, 252 Conn. at 188, 745 A.2d 789, that case and the present one are distinguishable factually such that the correct result is reached in each.
[9] Although the parties do not dispute the details of the stipulation and the transcript of the January 13, 2005 hearing on the defendant's motion for judgment notwithstanding the verdict indicates that it occurred, we note that there is no written stipulation in the court file, nor does the record on appeal include a transcript memorializing an oral stipulation.
[10] The court apparently did not find it necessary that the judgment be altered, opining that because "[t]he jury verdict did not exceed $20,000 ... it is clear by way of the stipulation and understanding [between the parties] that there is no recovery to this plaintiff." The court further characterized the jury verdict as "technical" and reiterated that given the stipulation, "it is clearly understood that this plaintiff cannot recover that amount...."
[11] Leaving the matter of an offset to the court is consistent with Practice Book § 10-79, which provides that "[a]n insurer should raise issues of monetary policy limits, or credits for payments by or on behalf of third party tortfeasors, by special defense. When a jury determination of the facts raised by special defense is not necessary, the special defense shall not be submitted to the jury but, rather, shall be resolved by the trial court prior to the rendering of judgment." See also Fahey v. Safeco Ins. Co. of America, 49 Conn.App. 306, 310, 714 A.2d 686 (1998) ("in an underinsured motorist case [t]he jury's only task [is] to assign the appropriate level of damages arising from the [underinsured] motorist's tort" [internal quotation marks omitted] ).
Here, in its fifth special defense, the defendant claimed that the policy it issued to the plaintiff "provided for uninsured/under insured motorist coverage in the amount of $100,000.00 per person [with a] total [of] $300,000.00 per occurrence ... and therefore the Plaintiff's recovery under said policy will be limited to said amount less any applicable set offs and reductions authorized by law." (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264384/ | 744 A.2d 679 (2000)
328 N.J. Super. 41
Joyce A. POLISENO, Individually, and as Administratrix Ad Prosequendum of the Estate of Michael Kuhlbars, Deceased, and as General Administratrix of the Estate of Michael Kuhlbars, Deceased, Plaintiff-Appellant/Cross-Respondent,
v.
GENERAL MOTORS CORPORATION, Chevrolet Corvette, a Division of General Motors Corporation, Defendant-Respondent/Cross-Appellant, and
A. Better Deal, Inc., Defendant.[1]
Superior Court of New Jersey, Appellate Division.
Argued October 4, 1999.
Decided February 8, 2000.
*681 Robert A. Vort, Tanafly, for plaintiff-appellant/cross-respondent (James F. Carney, of counsel and on the brief, Roseland; Mr. Vort, on the brief).
James N. Tracy, Point Pleasant, for defendant-respondent/cross-appellant (Tansey, Fanning, Haggerty, Kelly, Convery & Tracy, attorneys; Thomas F. Tansey, of counsel, Woodbridge; Mr. Tracy, of counsel and on the brief).
Before Judges HAVEY, KEEFE and LINTNER.
*680 The opinion of the court was delivered by KEEFE, J.A.D.
Plaintiff, Joyce A. Poliseno, individually and as administratrix ad prosequendum of the estate of her deceased husband, Michael Kuhlbars, brought this wrongful death action against defendant General Motors Corporation, claiming that the driver's side door of the 1985 Corvette driven by Kuhlbars was defectively manufactured and that such defect resulted in the vehicle not being "crashworthy."[2] She claimed that defects in the door welds caused enhanced injuries to her husband, which resulted in his death. Plaintiff also brought suit for emotional distress injuries *682 to herself resulting from her observation of Kuhlbars' injuries and death.
The jury found that the car contained defective driver's-side door beam welds and caused enhanced injuries. It found, however, that 80 percent of Kuhlbars' injuries were caused by the accident and only 20 percent were caused by the defective welds. The jury awarded $2.2 million in damages for Kuhlbars' wrongful death and $100,000 for plaintiff's claim of emotional distress. The trial judge molded the verdicts in accord with the jury's finding as to causation. Plaintiff appeals from the denial of her motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial. Defendant cross-appeals from the denial of its motions for a judgment notwithstanding the verdict or for a new trial.
The appeal and cross-appeal require that we determine whether: (1) the plaintiff or defendant has the burden of proof with respect to the apportionment of crashworthy damages; (2) death is an indivisible injury incapable of apportionment; and (3) if so, whether the instructions to the jury on the issue of concurrent causation were adequate. We conclude that the judge erred by placing the burden of apportionment on the plaintiff; death is capable of apportionment as to causation; there was sufficient evidence in the record from which a jury could apportion causation; the jury was not instructed properly on concurrent causation; and the insufficiency of the instructions, coupled with the erroneous allocation of burden of proof, require a new trial on the issues of causation and apportionment of damages.
The accident occurred on May 15, 1993, in Berlin, Germany. At the time, Kuhlbars was employed as a civilian accountant with the United States Armed Forces and plaintiff was employed as an attorney with the Department of Defense. Kuhlbars and plaintiff had been dining with two friends, Jean and Evelyn Boyd, that evening. After dinner, Kuhlbars, who was driving a 1985 Corvette purchased only a few months before the accident, was following a car driven by Jean Boyd through a residential area. At some point, Kuhlbars accelerated and passed the Boyd vehicle. The Corvette hydroplaned on the wet roadway, slid sideways off the road, jumped a curb on the right side of the roadway, and became wedged between a retaining wall on the right and a tree on the left.
As a result of the collision with the tree, the car was damaged along the left side, beginning at the left front wheel well and continuing to approximately the center of the driver's door, where the door had pocketed and the tree had protruded twenty inches into the driver's-side compartment. The windshield had also displaced from the left to the right, the steering wheel had been moved toward the center of the car, and the glass in the windshield and driver's-side window had shattered.
Plaintiff received only a minor laceration. Kuhlbars, however, was unconscious and was staring blankly ahead with his eyes wide open and blood coming out of his ears. Kuhlbars was removed from the car and taken to the hospital where he remained unconscious until he died on June 3, 1993. Kuhlbars had suffered multiple skull fractures, an epidural hemorrhage, a diffuse anoxal brain injury, a contused left lung, a tearing laceration of the left ear lobe, damage to the left optic nerve, and a broken right wrist.[3] At trial, the parties stipulated that Kuhlbars had died of the sequelae of the head injury he had received in the accident.
It was undisputed that the welds which had connected the driver's-side door beam to the internal structural components of the door had separated during the accident, *683 and that this separation was not the cause of the accident.
James Pugh, plaintiff's expert in the fields of accident reconstruction, metallurgy, welding, and biomedical engineering, testified that the Corvette's door beam had separated during the accident because it was defectively welded and thus was not strong enough to bear the load of this low-speed accident. He explained that the driver's-side door contained a high strength, low alloy steel beam whose purpose was to strengthen or stiffen the door of the car, thereby resisting penetration and protecting the driver. The beam was joined at its forward end to the hinge on the door frame by seven spot welds. A "spot weld" is a weld made by passing an electric current through two pieces of compressed metal, causing the metals to melt and fuse. According to Pugh, the welds deviated from several of defendant's internal standards. While defendant offered evidence to rebut that contention, defendant does not challenge the jury's finding of defect on appeal. Therefore, we need not discuss the evidence concerning the manufacturing defect in more detail.
The focus of this appeal is, rather, on the experts' divergent views concerning the force of impact, the sequence of events after impact, including the damage to the vehicle, and Kuhlbars' movement within the vehicle.
With regard to the accident dynamics, Pugh determined that the Corvette had been proceeding at approximately seventeen miles per hour with a principal direction of force of twenty degrees when the left front wheel struck a glancing blow to the tree. During the collision, the car experienced a change in velocity or "delta-V" of between ten and fifteen miles per hour. The car continued forward scraping the tree, until the tree reached the left door where the beam failed because of the defective welds, causing the tree to pocket or protrude into the driver's-side space, hitting Kuhlbars. Pugh admitted that there was a tendency for a driver to "move forward" when pocketing occurs, but explained that in this particular incident "most of the motion," and therefore the cause of Kuhlbars' injuries, occurred as a result of the tree moving into Kuhlbars.
Pugh described the accident as "moderate" and not severe, given Kuhlbars' speed and the fact that the car had impacted the tree with a glancing blow, rather than a direct hit. Thus, he maintained that if the weld had been properly joined, the beam would have remained intact during the accident and would have been able to bear the load of the glancing blow. Moreover, had the beam stayed intact, the tree would only have intruded into the driver's-side compartment approximately five inches, instead of twenty, and as a result, Kuhlbars would have sustained only a minor laceration as opposed to a fatal head injury.
On the same subject, Douglas Lane, defendant's senior staff analysis engineer and accident reconstruction expert, testified that the Corvette's left front wheel had hit the tree at a fifteen to twenty-five degree "side slip" angle, while traveling at a speed of between twenty-five and twenty-nine miles per hour. Lane concluded that the car collided with the tree at approximately ten miles per hour, experienced a "delta-V" of between twenty and twenty-three miles per hour and a principal direction of force of between forty and fifty-five degrees. He described the impact as "very significant," and concluded that the door beam had separated late in the accident sequence near the time of maximum engagement with the tree, as evidenced by the U-shaped deformation pattern of the door beam. In his opinion, if the welds had separated during the early part of the impact with the tree, as suggested by Pugh, the door beam would have been straight, not U-shaped.
George Mackay, defendant's expert in biomechanics and damage analysis, analyzed the damage to the Corvette and determined that there was "progressive[ ] damage of the left front wheel, the side *684 panel, the base of the A-post and then the door." He concluded that prior to the separation of the welds, the driver's-side window shattered, Kuhlbars's head then moved out of the shattered driver's-side window at a forty-five-degree angle, and hit the tree at approximately twenty-five miles per hour. He explained that generally an occupant of a vehicle moves along the angle of the principal direction of force. Thus, as a result of the force caused by sliding contact with the tree, Kuhlbars' head had begun to move toward the left and forward "relatively early during the crash sequence." He explained that
because of the sequential loading along the side of the car from the left front wheel, the side panel into the base of the A-pillar, those forces are of sufficient duration and magnitude that the driver is beginning to move laterally and forward relative to the inside of the vehicle and thus his head progresses forward and at an angle through the side window which will be fractured when you get some significant displacement of the base of the A-pillar.... So, that his head will pass through an empty space and contact the tree well before the full development of the deformation of the door.
He concluded that Kuhlbars' head injury was caused by the direct contact with the tree and not by the tree's intrusion into the driver's compartment. He explained that
the nature of his injuries is consistent with [sic] significant blow on the left frontal aspect of the head, something of an oblique blow with the soft tissue injury to the ear. The fact that he's got this defuse injury is an indicator of a rotation of the head as a result of the impact and that's implying that the load is not directed right through the center of gravity of the head, it's causing a rotation as a result of the impact. This [ ] has been demonstrated as one of the mechanisms for this defuse brain injury. So, in terms of the specific mechanisms of the head injuries, I think he's having a blow from the tree directly along the side of his head on the left side.
He concluded that Kuhlbars' head injuries occurred before the welds separated and "well before the full development of the intrusion" or the "crush of the door," and thus the separation of the welds was not the cause of the injuries. According to Mackay, the difference between the damage that would have occurred had the welds remained intact as opposed to separating "would be negligible." Therefore, Mackay maintained that Kuhlbars would have sustained fatal head injuries in the accident even if the beam had remained intact.
The jury returned a verdict in response to special interrogatories as follows:
1. Did the Corvette at the time it left the control of General Motors contain defective driver's side door beam welds that made the car not reasonably safe for its intended use?
Yes7 No2
2. Were the defective door beam welds a proximate cause of enhanced injuries to Michael Kuhlbars, in other words, injuries that are greater than he would have sustained from the accident alone?
Yes7 No2
3. In terms of percentages, what percent of Michael Kuhlbars' injuries were proximately caused by the accident alone and what percent of the injuries were proximately caused by the defective welds?
Accident alone80%
Defective welds20%
I.
"Crashworthiness" is defined as the ability of a motor vehicle to protect its passengers from enhanced injuries after a collision. Barris v. Bob's Drag Chutes & Safety Equip., Inc., 685 F.2d 94, 100 (3d Cir.1982). The crashworthiness doctrine *685 was first recognized in Larsen v. General Motors Corp., 391 F.2d 495, 504-05 (8th Cir.1968). It is premised upon the manufacturer's legal duty to design and manufacture a reasonably crashworthy product. Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1070-71 (4th Cir.1974). Thus, "a manufacturer has to include accidents among the `intended' uses of its product." Barris, supra, 685 F.2d at 100 (citation omitted). Strict liability is imposed on a manufacturer for injuries sustained in an accident involving a design or manufacturing defect that enhanced the injuries, but did not cause the accident. Seese v. Volkswagenwerk, A.G., 648 F.2d 833, 839 (3d Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981).
The manufacturer is liable only for enhanced injuries, that is, injuries that would not have occurred absent the alleged defect. Larsen, supra, 391 F.2d at 503. "Enhanced injury refers to the degree by which a defect aggravates collision injuries beyond those which would have been sustained as a result of the impact or collision absent the defect." Barris, supra, 685 F.2d at 100. The crashworthiness doctrine is also referred to as the "second collision" doctrine, the accident itself being the "first collision," or "enhanced injury" doctrine. Mazda Motor Corp. v. Lindahl, 706 A.2d 526, 530 (Del.1998).
It is generally agreed that the plaintiff in a crashworthy case has the burden of establishing that the alleged defect was a substantial factor in increasing the harm beyond that which would have resulted from the first collision. Restatement (Third) of Torts: Products Liability § 16 comment a (1997). Beyond that agreement, however, there is a split of authority concerning any additional burden a plaintiff may have in apportioning damages between the first and second collision. Apportionment is generally a problem that occurs in crashworthy cases involving an indivisible injury, such as death, where it is often difficult to prove with any precision whether the alleged defect was the sole cause of the injury, or whether the second collision contributed to the injury in a substantial degree. Which party has the burden of proof on that issue can be determinative of whether a plaintiff recovers damages in such cases.
In an effort to predict what New Jersey would do on the subject, the Third Circuit, in Huddell v. Levin, 537 F.2d 726, 737-38 (3d Cir.1976), held that the plaintiff must prove not only that the alleged defect was a substantial factor in causing some increased harm, but must also prove the extent of the increased harm. If a plaintiff is unable to quantify the increased harm, the plaintiff is unable to recover. Ibid. Huddell, however, has come to represent the minority view. The majority view, referred to as the Fox-Mitchell[4] approach, shifts the burden of proving apportionment to the defendant manufacturer after the plaintiff offers some evidence that the injuries were in fact enhanced because of the defective product. See Restatement (Third) of Torts: Products Liability, supra, § 16, Reporters' Note, comment d.
The accuracy of Huddell's prediction of New Jersey law was first questioned in Crispin v. Volkswagenwerk A.G., 248 N.J.Super. 540, 569 n. 1, 591 A.2d 966 (App.Div.) (predicting that a rule placing the burden of proof of apportionment on the defendant would be more in line with recent New Jersey Supreme Court medical malpractice apportionment cases), certif. denied, 126 N.J. 385, 599 A.2d 162 (1991). Despite the caution flag raised by Crispin, the Law Division in 1993 applied Huddell to the case before it. See McLaughlin v. Nissan Motor Corp., 267 N.J.Super. 130, 134, 630 A.2d 857 (Law Div.1993). A year later, Judge Lintner, *686 recognizing that the Fox-Mitchell line of cases expressed the majority view and that the majority view was in accord with our Supreme Court's approach to apportionment in the medical malpractice context, held that the burden of apportionment should be on the defendant. Thornton v. General Motors Corp., 280 N.J.Super. 295, 303, 655 A.2d 107 (Law Div.1994). At the time of trial, the conflict in the Law Division cases had not been resolved.
Here, the judge rejected the Crispin dicta and the Thornton decision, and opted for the Huddell approach. The judge charged the jury that plaintiff had
the burden of proving by a preponderance of the credible evidence that the alleged defect enhanced the injuries sustained by Mr. Kuhlbars in the accident. There is no claim in this case ... that any defect in Michael Kuhlbars's Corvette caused the car to hydroplane, to jump the curb and to hit the tree and the brick wall. For that reason you cannot find General Motors liable for injuries that would have been sustained by him as a proximate result of those events alone. The claim against GM is instead for damages for the enhanced injuries that [plaintiff] claims occurred as the result of the alleged defect in the door beam welds. In order to prove enhanced injury, [plaintiff] must establish, again, by a preponderance of the credible evidence, first of all, what injury, if any, Mr. Kuhlbars would have sustained if the welds had not been defective as alleged and, number two, what injury, if any, was approximately caused [sic] by the defect as alleged in the welds. Recovery can be obtained from GM only for the damages flowing from the enhanced injury. If you conclude that the injuries sustained by Mr. Kuhlbars would have been the same regardless of the defect, if you find a defect to exist, then you cannot find that there has been an enhancement of the injury.
Subsequent to the trial in this case, the issue of who had the burden of proof of apportioning an indivisible injury between the first collision and the second collision was addressed in Green v. General Motors Corp., 310 N.J.Super. 507, 525-29, 709 A.2d 205 (App.Div.), certif. denied, 156 N.J. 381, 718 A.2d 1210 (1998). Judge Dreier, writing for this court, held that the trial judge in that case erred in following Huddell and in placing the burden of apportionment on the plaintiff. Id. at 528, 709 A.2d 205. The court adopted the Fox-Mitchell approach, allocating the burden of apportionment to the defendant manufacturer. Id. at 528-29, 709 A.2d 205.
Defendant argues here that the Green court's holding on this issue was dicta, because the jury in that case found plaintiff's paralysis solely attributable to the design defect, and, thus, apportionment was not an issue. We agree with defendant. Nonetheless, we find Judge Dreier's analysis of the doctrine compelling and adopt it as our own.
Therefore, we hold that in a crashworthy case, the plaintiff must prove only that a defect in the vehicle increased or enhanced the injury beyond that which would have resulted had there not been a defect. Thus, contrary to the judge's instruction in this case, plaintiff was not obliged to prove "what injury, if any, Mr. Kuhlbars would have sustained if the welds had not been defective." That is, plaintiff is not required to prove a negative. Plaintiff need only prove that the presence of the alleged defect was a substantial factor in producing an injury that would not have occurred, or would have been substantially diminished, in the absence of the defect. Restatement (Third) of Torts: Products Liability, supra, § 16 comment a; Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 360 N.W.2d 2, 11 (1984). When a plaintiff has sustained that burden, the plaintiff need not quantify to what extent the second collision enhanced the injury. Rather, if the defendant seeks credit against the verdict for an injury that it claims resulted, in part, from the first collision, defendant *687 shall have the burden of proof on that issue.
In this case, the plaintiff satisfied her initial burden of proving that the welding defect caused injuries to Kuhlbars resulting in his death that would not have occurred had there been no defect in the door beam welds. To the extent that defendant contends that the injury (death) is divisible and resulted from both the first collision, for which it is not responsible, and the second collision, it was defendant's burden to quantify the extent to which each collision caused Kuhlbars' death.
Accordingly, the trial judge erred in placing on the plaintiff the burden of quantifying the extent to which second collision damages were enhanced by first collision damages.
II.
The trial judge, in her written opinion denying post-trial motions, held that while "death is indivisible [ ] as [to] result," it is capable of apportionment in terms of causation. We agree. As the judge noted, general tort law endorses the principle that "[d]amages for harm are to be apportioned among two or more causes where... there is a reasonable basis for determining the contribution of each cause to a single harm." Restatement (Second) of Torts § 433A(1)(b)(1964). Apportionment of damages based on causation has been favored in our case law. Campione v. Soden, 150 N.J. 163, 184, 695 A.2d 1364 (1997); Feldman v. Lederle Laboratories, 132 N.J. 339, 350-52, 625 A.2d 1066 (1993); Dafler v. Raymark Indus., Inc., 259 N.J.Super. 17, 35, 611 A.2d 136 (App. Div.1992), aff'd o.b., 132 N.J. 96, 622 A.2d 1305 (1993); Bendar v. Rosen, 247 N.J.Super. 219, 588 A.2d 1264 (App.Div.1991); Thornton, supra, 280 N.J.Super. at 302, 655 A.2d 107. The same principle applies to crashworthy cases. Section 16 of the Restatement (Third) of Torts: Products Liability, supra, provides:
(b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller's liability is limited to the increased harm attributable solely to the product defect.
(c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiff's harm attributable to the defect and other causes.
The Green court adopted these principles for use in New Jersey crashworthy cases, as do we. Green, supra, 310 N.J.Super. at 528, 709 A.2d 205.
There is no impediment to apportioning damages in this case as to causation simply because the alleged "other cause" results from Kuhlbars' conduct. While the Restatement Reporters observed that use of plaintiff's conduct in this setting is a "difficult issue" in terms of comparative fault, it is clear that a majority of jurisdictions allow plaintiff's conduct to be considered in the context of causation. Restatement (Third) of Torts: Products Liability, supra, § 16, Reporters' Note, comment f; see also Dafler, supra, 259 N.J.Super. at 28, 611 A.2d 136 (noting that apportionment rules apply "where one of the causes in question is the conduct of the plaintiff himself, whether it be negligent or innocent") (quoting Restatement (Second) of Torts § 433A comment (a) (1964)).
We recognize that in the typical product setting, New Jersey case law indicates that plaintiff's conduct is irrelevant in terms of comparative fault where it amounts to little more than negligent failure to observe the very danger that a properly manufactured or designed product would have rendered safe. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 158-59, 406 A.2d 140 (1979).[5] The rule is *688 grounded in policy reasons that undergird strict products liability law. Ibid. Those same policy reasons do not exist, however, where the plaintiff's conduct was a factor in the happening of the accident but not because of his or her use of the product in the traditional product liability context. In such cases, plaintiff's conduct is at least relevant on the issue of proximate cause. See Johansen v. Makita USA, Inc., 128 N.J. 86, 103, 607 A.2d 637 (1992)(holding that where comparative fault is not available as a defense, plaintiff's conduct may be relevant on proximate cause). This concept was recognized in Green. Judge Dreier wrote: "If the speed [of plaintiff's vehicle] was beyond the design limits [for making a crashworthy vehicle], speed would have been a proper factor to determine proximate cause and a later apportionment of liability." Green, supra, 310 N.J.Super. at 521, 709 A.2d 205. Thus, in this case, Kuhlbars' conduct in losing control of his vehicle and leaving the roadway, irrespective of fault, was relevant on the issue of the cause of the death producing injuries because, under the defense theory, it was that conduct which caused Kuhlbars' death producing head injuries. As will be discussed more fully later, the evidence was sufficient for a jury to conclude that the first and second collisions were concurrent causes of Kuhlbars' death.
Our discussion here of causation and apportionment should not be confused with the question of whether plaintiff's fault in causing the first collision is admissible to diminish plaintiff's recovery on comparative fault grounds where the first collision results in a defect-related enhanced injury solely caused by the second collision. The Restatement (Third) of Torts: Products Liability, supra, § 16 comment f states that such "fault is relevant in apportioning responsibility between or among the parties[.]" The Restatement's justification for the rule is that requiring a manufacturer to design a product "reasonably to prevent increased harm aims to protect persons in circumstances in which they are unable to protect themselves." Ibid. The Restatement comment, however, is at odds with this court's holding in Green. In Green, the court held that driver error in causing the first collision is irrelevant in crashworthy cases on comparative fault grounds. Green, supra, 310 N.J.Super. at 521, 709 A.2d 205. We need not engage ourselves in that debate, because the defendant here does not contend that it is entitled to a credit based on Kuhlbars' general fault in causing the first collision.
Rather, in this case, defendant addressed driver conduct, irrespective of fault, that a jury could find to be a concurrent cause of a single injury. The focus was on driver conduct as it related to apportionment of damages based on causation, not comparative fault. Plaintiff confuses the two interrelated but distinct concepts in her appellate brief.
III.
Having decided that death is capable of apportionment as to cause, we now decide whether there was sufficient evidence to permit such apportionment. As can clearly be seen from the earlier recitation of the facts, plaintiff's expert attributed Kuhlbars' death solely to the intrusion of the tree into the vehicle because of the defective welds, while the defendant's expert opined that Kuhlbars' head struck the tree and received the death-producing *689 blow before the welds on the door gave way. Neither expert suggested that trauma from the first collision combined with trauma from the second collision produced Kuhlbars' death. Thus, if the jury accepted either expert's opinion fully, there would be no basis for apportionment.
It appears from the verdict that the jury found some basis to apportion damages. Plaintiff argues that the jury's conclusion was against the weight of the evidence and that plaintiff is entitled to 100 percent of the verdict. Defendant, on the other hand, argues that there was a sufficient basis in the evidence to permit the jury to consider the question irrespective of each expert's opinion. We agree with defendant.
The jury was correctly instructed that it was free to accept that part of each expert's testimony that it found logical and credible, while rejecting such testimony that it found to be illogical or incredible. As our Supreme Court has noted:
"A jury has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary. `The jury may adopt so much of it as appears sound, reject all of it, or adopt all of it.'"
[Waterson v. General Motors Corp., 111 N.J. 238, 248, 544 A.2d 357 (1988)(quoting Amaru v. Stratton, 209 N.J.Super. 1, 20, 506 A.2d 1225 (App. Div.1985)).]
When viewed from that perspective, it is clear that there was sufficient evidence in the record from which the jury could have accepted part of Mackay's testimony concerning the dynamics of the first collision and the movement of Kuhlbars' body within the vehicle. From that testimony, the jury could have found that Kuhlbars received substantial head trauma from contact with the tree before the defective welds in the door permitted incursion of the tree into the passenger compartment. The jury, however, did not have to accept Mackay's testimony that the trauma from the first collision was sufficient alone to have produced Kuhlbars' death. It could have found that the defective welds permitted the door beam to separate from the door frame and permitted incursion of the tree into the passenger compartment producing additional head trauma that would not have occurred had there been no manufacturing defect. That is, the jury could have found concurrent causation of the death-producing injuries.
Though the trial judge did not make the same analysis of the evidence as we have made, she found that there was sufficient evidence in the record for the jury to have made an apportionment as to the cause of Kuhlbars' death. We agree with the trial judge. Irrespective of what party had the burden of producing the evidence to enable apportionment, sufficient evidence was produced in this case to permit it. The defendant was not required to produce evidence amounting to scientific or mathematical precision as to how much each collision contributed in percentage points to Kuhlbars' ultimate death. As this court noted in Dafler, supra:
"Where a factual basis can be found for some rough practical apportionment, which limits a defendant's liability to that part of the harm of which that defendant's conduct has been a cause in fact, it is likely that the apportionment will be made."
[259 N.J.Super. at 28, 611 A.2d 136 (quoting Prosser and Keeton on Torts § 52 at 345 (5th ed.1984)).]
While "outright guesswork" should not be permitted, when expert testimony provides "a rational explanation derived from a causal analysis, the testimony should, subject to the normal discretion of the trial court, be admitted for consideration by the trier of fact." Restatement (Third) of Torts: Products Liability, supra, § 16 comment c. "[I]t is preferable in the interest of fairness to permit some rough apportionment of damages, rather than to hold the defendant entirely liable for a harm that was inflicted by separate *690 causes." Dafler, supra, 259 N.J.Super. at 31, 611 A.2d 136. Applying these principles to this case, we conclude that the evidence was sufficient to have the jury determine the issue. Therefore, the trial judge did not err in doing so.
IV.
The next question is whether the verdict relative to apportionment can stand. Defendant contends that it can, but its argument is premised on the validity of Huddell. As we have previously discussed, Huddell is no longer viable in this jurisdiction on the issue of which party has the burden of proving apportionment. To say that there was sufficient evidence in the record to allow the apportionment issue to go to the jury is one thing, but to say that it does not matter who had the burden of persuasion on that issue is yet another.
As indicated earlier, once the jury found that a manufacturing defect proximately caused enhanced injuries to Kuhlbars, the plaintiff had satisfied her burden of proof. If the defendant wanted to argue, in the alternative, that the jury could find from the evidence that the first collision, referred to in the charge as "the accident," was a concurrent cause of the death-producing head injuries, it was the defendant's burden to prove it and give the jury a basis for apportioning between the first and second collision injuries. We cannot say that the defendant carried its burden of proof on the issue as a matter of law. While we have given a reasonable interpretation of the evidence that would permit a finding of concurrent causation for Kuhlbars' death, we cannot say that no reasonable jury could disagree with us. The point is that it was a jury question, and the jury needed guidance to answer the question properly. It did not have that guidance.
Aside from failing to assign the burden of proof on apportionment to the defendant, the judge failed to explain the doctrine of concurrent causation to the jury. The first mention of the concept of apportionment was in the judge's explanation of the questions on the jury verdict sheet. As to question three, the judge said "what percent of Michael Kuhlbars' injuries were proximately caused by the accident alone and what percent of the injuries were proximately caused by the defective welds?"
The jury was left to its own devices to discern what evidence it could and could not consider in making that decision. The judge did not instruct the jury that it was focusing only on those injuries that the parties stipulated caused his deaththe head injuries. Nor did the judge instruct the jury that it was limited to causative evidence in deciding whether the first collision was a substantial contributing factor in Kuhlbars' death. Without that type of limiting instruction, the jury may have thought that his conduct in leaving the road in the first instance was relevant on that issue. See Johansen, supra, 128 N.J. at 99-100, 607 A.2d 637 (explaining why limiting instructions are necessary on such issues). Thus, the jury, in violation of Green, could have discounted the verdict by some perception of Kuhlbars' fault as a proximate cause of the first accident.
The judge also failed to instruct the jury that it could not apportion between the first and second collision unless it found that both the first collision and the welding defect (second collision) were concurrent, substantial contributing factors in producing Kuhlbars' death. Once having made that determination, the jury could then analyze and assign relative weight to the factors pertaining to causation that linked the first and second collision in order to arrive at a percentage attributable to each: essentially evidence relating to the magnitude of the forces, the direction of the forces, the reaction of the vehicle to those forces, and the movement of Kuhlbars in the vehicle in response to those forces.
Simply stated, in complex cases of this nature, the jury should be instructed on *691 legal principles in the context of the particular facts of the case and the parties' contentions, rather than on abstract principles of law. See Suter, supra, 81 N.J. at 176, 406 A.2d 140 (holding that "[t]he instruction should be tailored to the factual situation to assist the jury in performing its fact finding responsibility"). As we see it, this problem affected the second interrogatory as well as the third interrogatory. With respect to the second jury question, it must be remembered that plaintiff sued only for Kuhlbars' wrongful death. Her theory was that the welding defect permitted the tree to intrude into the passenger compartment and cause head trauma that would otherwise not have been sustained had there been no defect. Thus, the trial judge should have specifically focused the jury's attention on plaintiff's burden in that factual context, rather than simply using the generic instruction that plaintiff had the burden of proving that "the defective welds were a proximate cause of enhanced injuries to Mr. Kuhlbars." (Emphasis added.) There was evidence in this case that a jury could have relied upon to find that Kuhlbars received injuries other than head injuries as a result of the defective welds. While those injuries would qualify as enhanced injuries, they had nothing to do with Kuhlbars' death. Indeed, plaintiff sought no compensation for those injuries. While sophisticated lawyers and judges may have understood this nuance in plaintiff's case, we are not at all sure that the jury did. It is conceivable that the vagueness in this interrogatory was the basis for the 20 percent allocation to the defendant in the third interrogatory. We have no confidence that the jury's response to the second interrogatory related to the enhanced injuries that plaintiff sought to link with Kuhlbars' wrongful death.
In summary, we conclude that the error in failing to assign the proper burden of proof to the defendant on the issue of apportionment, and the failure to give the jury adequate guidance on the issues of apportionment and causation, had the capacity to affect the verdict. Thus, a new trial is required.
A new trial on all issues is not required, however, in instances where the "error is entirely distinct and separable from the other issues." Ahn v. Kim, 145 N.J. 423, 434, 678 A.2d 1073 (1996); see also Ladner v. Mercedes-Benz of N. Am., Inc., 266 N.J.Super. 481, 494, 497, 630 A.2d 308 (App.Div.1993), certif. denied, 135 N.J. 302, 639 A.2d 301 (1994). In this case, the errors we have identified did not have the capacity to affect the jury's finding as to the existence of a manufacturing defect. Accordingly, that issue need not be retried. The remaining issues, however, are affected by the errors and are so intertwined that a re-trial as to those issues is necessary.
Reversed and remanded for a new trial in accord with this opinion.
NOTES
[1] A. Better Deal, Inc. was the seller of the used Corvette. It was dismissed from the litigation before trial.
[2] "Crashworthiness" is defined in the Motor Vehicle Information and Cost Savings Act, 49 U.S.C.A. § 32301(1), as "the protection a passenger motor vehicle gives its passengers against personal injury or death from a motor vehicle accident."
[3] Defendant's expert theorized that Kuhlbars had broken his wrist as a result of his "interaction with the steering wheel."
[4] Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199, 1206-08 (8th Cir.1982) (the burden of proof of apportionment is on the defendant under Minnesota law); Fox v. Ford Motor Co., 575 F.2d 774, 787-88 (10th Cir.1978)(the burden of proof of apportionment is on the defendant manufacturer under Wyoming law).
[5] In a non-workplace setting, plaintiff's conduct can be used to reduce damages where the product user has proceeded in the face of a known danger. Suter, supra. However, plaintiff's conduct may be relevant on comparative fault in other circumstances as well. As for example, "the plaintiff may have been speeding in a vehicle and that speed might have been a cause of an accident which was also caused by a defect in the vehicle." Dreier, Goldman & Katz, Current N.J. Products Liability & Toxic Torts Law § 16:5 (1999). Recently, this court held that evidence of plaintiff-decedent's intoxication was admissible on the issue of comparative fault because that conduct had nothing to do with the plaintiff's lack of awareness of the alleged defect in the axle of the vehicle, which plaintiff alleged was the cause of the accident. Wallace v. Ford Motor Co., 318 N.J.Super. 427, 723 A.2d 1226 (App.Div.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2768484/ | CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, 1 and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 PERRY V. WARREN, JR.
United States Army, Appellant
ARMY 20110790
U.S. Army Medical Department Center and School
Patricia H. Lewis, Military Judge
Lieutenant Colonel Randolph Swansiger, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Ian M. Guy, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief).
14 August 2013*
----------------------------------
MEMORANDUM OPINION
----------------------------------
This opinion is issued as an unpublished opinion and , as such, does not serve as precedent.
GALLAGHER, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave terminated by
apprehension, two specifications of diso beying a noncommissioned officer, three
specifications of wrongful use of a controlled substance, two specifications of
wrongful distribution of a controlled substance, and three specifications of wrongful
appropriation, in violation of Articles 86, 91, 112a, and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 891, 912a, 921 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a dishonorable discharge, confinement for four
1
Judge GALLAGHER took final action on this case prior to her permanent change
of station.
*Corrected
WARREN—ARMY 20110790
years, forfeiture of all pay and allowances, and reduction to the grade of Private E1.
The convening authority approved only so much of the sentence as provided for a
bad-conduct discharge, confinement for four years, forfeiture of all pay and
allowances, and reduction to the grade of Private E1.
This case is before us for review under Article 66, UCMJ . Appellate counsel
assigned two errors to this court and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Both assigned errors merit
discussion and relief. Those matters raised by appellant pursuant to Grostefon are
without merit. We also find two additional issues not raised by the parties merit
discussion and relief.
LAW AND DISCUSSION
We review a military judge’s acceptance of an accused’ s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “[I]n reviewing a
military judge’s acceptance of a plea for an abuse of discretion [ we] apply a
substantial basis test: Does the record as a whole show a substantial basis in law
and fact for questioning the guilty plea.” Id. at 322 (quoting United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)) (internal quotation marks omitted). There exists a
substantial basis in fact to question a plea of guilty where a military judge “fails to
obtain from the accused an adequate factual basis to support the plea.” Id. (citing
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)).
In order to establish an adequate factual predicate for a guilty plea, the
military judge must elicit “factual circumstances as revealed by the accused himself
[that] objectively support that plea[.]” United States v. Davenport, 9 M.J. 364, 367
(C.M.A. 1980). It is not enough to elicit legal conclusions. The military judge must
elicit facts to support the plea of guilty. United States v. Outhier, 45 M.J. 326, 331
(C.A.A.F. 1996). The record of trial must reflect not only that the elem ents of each
offense charged have been explained to the accused, but also “make clear the basis
for a determination by the military trial judge . . . whether the acts or the omissions
of the accused constitute the offense or offenses to which he is pleadin g guilty.”
United States v. Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969).
“For this Court to find a plea of guilty to be knowing and voluntary, the
record of trial ‘must reflect’ that the elements of ‘each offense charged have been
explained to the accused’ by the military judge.” United States v. Redlinski, 58 M.J.
117, 119 (C.A.A.F. 2003) (quoting Care, 18 C.M.A. at 541, 40 C.M.R. at 247). “If
the military judge fails to explain the elements to an accused, it is reversible error
unless it is clear from the entire record that the accused knew the elements, admitted
them freely, and pleaded guilty because he was guilty.” United States v. Jones, 34
M.J. 270, 272 (C.M.A.1992). “Rather than focusing on a technical listing of the
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WARREN—ARMY 20110790
elements of an offense, this Court looks at the context of the entire record to
determine whether an accused is aware of the elements, either explicitly or
inferentially.” Redlinksi, 58 M.J. at 119.
Absence Without Leave Terminated By Apprehension
At trial, consistent with the pretrial agreement, appellant pleaded not guilty to
desertion under Article 85, UCMJ, but guilty to the lesser -included offense of
absence without leave terminated by apprehension in violation of Article 86, UCMJ.
At the outset of the plea inquiry, the military judge listed the elements for absence
without leave terminated by apprehension. The military judge neither provided a
definition of “apprehension” nor explained that the mere fact an accused is
apprehended by civilian authorities is insufficient to establish that an accused’s
return to military control was involuntary. 2
2
The relevant definition provides:
“Apprehension” means that the accused’s return to
military control was involuntary. It must be shown that
neither the accused nor persons acting at his request
initiated the accused’s return.
That the accused was apprehended by civilian authorities,
for a civilian violation, and was thereafter turned over to
military control by the civilian authorities, does not
necessarily indicate that the accused’s return was
involuntary. Such return may be deemed involuntary if,
after the accused was apprehended, such civilian
authorities learned of the accused’s military status from
someone other than the accused or persons acting at his
request.
In addition, the return may be involuntary if, after being
apprehended by civilian authorities, the accused disclosed
his identity as a result of a desire to avoid trial,
prosecution, punishment, or other criminal action at the
hands of such civilian authorities. However, if the
accused disclosed his identity to the civilian authorities
because of the accused’s desire to return to military
control, the accused’s return should not be deemed
involuntary or by apprehension.
(. . . continued)
3
WARREN—ARMY 20110790
Appellant acknowledged he understood the elements of the offense and then
proceeded to explain why he was guilty of absence without leave terminated by
apprehension. The following colloquy is the extent to which the military judge
questioned appellant on his plea:
MJ: Additional Charge III . . .
ACC: Yes.
MJ: Okay
ACC: Ma’am, I had a lot of stuff going on between 24 – around
24 May 2011, and just ended up losing my head, ma’am, and
running from my problems. Once a day or so went by and I
realized what I had done, and then I didn’t really know what to do.
I remained absent for a while . . . . And later on I had a
conversation with my First Sergeant – First Sergeant Young. I
explained to First Sergeant Young that I was coming back to Fort
Sam Houston. On my way back from Dallas, ma’am, it was a
weekend and I was going to come out on Monday, and I got
apprehended by [the San Antonio Police Department] and that’s
when I told them I was in the military, ma’am. My apprehension
was around 8 July.
MJ: Apprehended by the civilian authorities?
ACC: Yes, ma’am.
(. . . continued)
The arrest of an accused by civilian authorities does not,
in the absence of special circumstances, terminate his
unauthorized absence by apprehension where the record
does not show such apprehension to have been conducted
with or done on behalf of the military authorities. Thus,
in the absence of special circumstances, mere
apprehension by civilian authorities does not sustain the
government’s burden of showing the return to military
control was involuntary.
Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook], para. 3-10-2 (1 Jan. 2010).
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WARREN—ARMY 20110790
MJ: And why were you apprehended?
ACC: I was apprehended for possession
MJ: Okay. And when were you released?
ACC: I was released from civilian [confinement] on 11 June – 8
July, ma’am. I am sorry.
MJ: So the same day that you were –
ACC: In my civilian apprehension, I was apprehended 11 June
2011, and I was released from the civilian [authorities] to the
military on 8 July.
In regards to The Additional Charge and its Specification, the stipulation
merely provided:
On 25 May 2011, PV2 Warren absented himself from his
unit, C Co., WTB, BAMC located at Fort Sam Houston,
Texas. At the time PV2 Warren absented himself, he did
not have the authority to leave his unit as he had a court -
martial scheduled to take place on 6 June 2011. PV2
Warren remained absent, without authority, until he was
apprehended by the San Antonio Police Department and
released to military control on 8 July 2011. PV2 Warren’s
return to military control was involuntary.
We find a substantial basis in law and fact to question the providence of
appellant’s plea with regards to the absence being terminated by apprehension. To
establish that an absence was terminated by apprehension, “the facts on the record
must establish [the] return to military control was involuntary.” United States v.
Gaston, 62 M.J. 404, 405 (C.A.A.F. 2006). Mere proof of apprehension by civilian
authorities is insufficient to establish that a return to military control is involuntary.
Id. Rather, in order to establish the absence was terminated by apprehensi on, the
record must indicate the apprehension was “connected with or done on behalf of the
military authorities.” Id. at 197.
During the providence inquiry, appellant informed the military judge that he
was on his way back to Fort Sam Houston when he “got apprehended by SAPD and
that’s when [he] told them [he] was in the military.” The stipulation of fact merely
sets out the conclusion that the return was involuntary. In the absence of any
definitions or explanations of the element “terminated by appr ehension” and an
absence of sufficient facts from appellant establishing his return to military control
5
WARREN—ARMY 20110790
was involuntary, we are not confident appellant’s absence was terminated by
apprehension. See Jones, 34 M.J. at 342. As such, we find the military judge
abused her discretion in accepting appellant’s pleas of guilty to the language
“terminated by apprehension.”
Wrongful Use of a Controlled Substance
Specification 2 of Charge I alleged appellant wrongfully used codeine, a
Schedule II controlled substance. The specification alleged:
In that [appellant], U.S. Army, did, at or near Fort Sam
Houston, Texas, between on or about 22 December 2010
and on or about 29 December 2010, wrongfully use
codeine, a Schedule II controlled substance.
During the plea colloquy, the military judge listed the elements of the offense but
failed to inform appellant that codeine’s classification as a Schedule II controlled
substance was an element of the offense. Additionally, the military judge did not
take judicial notice that codeine was a Schedule II controlled substance and inform
appellant she had done so.
In explaining why he was guilty of wrongfully using codeine, appellant
admitted to using codeine; that he knew the substance was codeine; that he did not
have a legal justification for his use; and that he knew his actions were wrongful
because he did not have a prescription for the drug. Appellant did not discuss
codeine’s classification as a Schedule II controlled substance or that he knew
codeine was illegal because of that classification.
Similarly, the stipulation of fact provided:
PV2 Warren wrongfully used codeine between 22
December 2010 and 29 December 2010. He used this
codeine in his barracks room at Fort Sam Houston, Texas.
PV2 Warren obtained this codeine from a prescription, not
his own. He knew that the substance he was using was
codeine. PV2 Warren had no legal justification or excuse,
and he knew that he had no legal justification or excuse.
He used the codeine in pill form by swallowing it.
The stipulation of fact, like appellant’s providence inquiry, did not address
codeine’s classification as a Schedule II controlled substance at all, let alone as a
required element of the offense.
6
WARREN—ARMY 20110790
Codeine’s classification as a Schedule II controlled substance is “an essential
element of the offense” and appellant must admit or be advised that codeine is a
controlled substance “within the meaning of Article 112a(b)(3), UCMJ.” United
States v. Bradley, 68 M.J. 556, 559 (Army Ct. Crim. App. 20 09). This court cannot
presume codeine is a Schedule II controlled substance. Id.
Here, the military judge failed to inform appellant of an ess ential element of
the offense. See Redlinski, 58 M.J. at 119 (holding the record of trial must reflect
that the elements of ‘each offense charged have been explained to the accused’ by
the military judge). As stated earlier, such an omission will constitute reversible
error unless we can look to the record of trial to determine appellant was aware of
the element and admitted his guilt. See Jones, 34 M.J. at 270. We are unable to do
so in this case. Both appellant’s providence inquiry and the stipulation of fact are
silent as to whether appellant knew codeine was a Schedule II controlled substance
and that such a finding was necessary to determine his guilt. There is a significant
difference between use that is wrongful solely due to a lack of prescription and the
wrongfulness of using a scheduled and controlled substance for which you have no
prescription. As such, we find the military judge abused her discretion in accepting
appellant’s plea of guilty to wrongful use of codeine, a Schedule II controlled
substance.
Wrongful Appropriation of Government Property
In Specification 2 of Charge II, appellant was charged with the wrongful
appropriation of a television, property of the U.S. Army, in violation of Article 121,
UCMJ. At trial, the military judge listed the elements of the offense but, again,
failed to include any definitions in explanation of the elements. The military judge
advised appellant that the elements of this offense were: appellant wrongfully
appropriated a television, the property of the United States government; the property
belonged to the United States government; the property was of some value; and that
the taking was with the intent to temporarily deprive the United States government
of the television. After acknowledging the elements provided by the military judge,
appellant proceeded to explain why he was guilty of the charg ed offense:
Ma’am, I am going to Spec 2, Charge II. On 29 November
2010, and 6 December 2010, I wrongfully took a TV from
my barracks room on Fort Sam Houston and pawned it for
$100.00. The next day I went and got it back. I intended
only to deprive the government for the day. I am not sure
how much the TV was worth; the pawn shop only gave me
$100.00 for it. But later I found out it was actually worth
$800.00.
7
WARREN—ARMY 20110790
The stipulation of fact adds that the appellant signed for the television set and that
the taking of the television set was “wrongful because PV2 Warren was authorized
to use the TV in his barracks room only . . . he was not authorized to remove the TV
from his barracks room or sell the TV.”
While appellant’s actions may well have constitute d the crime of wrongful
appropriation, the failure of the military judge to correctly and fully explain the
elements with regards to ownership, control, and possession, under the unique facts
of this case, were fatal to a provident plea of guilt. Article 121, UCMJ, requires that
the taking, obtaining, or withholding be from the possession of the owner or of any
other person. Manual for Courts-Martial, United States (2008 ed.) [hereinafter
MCM], pt. IV, ¶ 46.c.(c)(1). “Owner” refers to any person who, at the time of the
taking, obtaining, or withholding, had the superior right to possession of the
property in light of all conflicting interests. MCM, pt. IV, ¶ 46.c.(c)(ii).
“Possession” means care, custody, management, or control.” MCM, pt. IV, ¶
46.c.(c)(i). Appellant, who was signed and accountable for the television owned by
the United States government, pawned it one day and redeemed it the next. Absent
adequate explanation of the elements to appellant, w e are unconvinced that appellant
providently understood and admitted he had, at the time of the offense, the specific
intent to temporarily deprive the government of the use and benefit of a television
for which he was signed. As such, we find the military judge abused her discretion
when she accepted appellant’s plea of guilty to wrongful appropriation.
Violation of Lawful Order
In Specification 2 of Charge III, appellant was charged with violating a lawful
order given to him by a superior noncommissioned officer. The specification
alleged:
In that [appellant], U.S. Army, having received a lawful
order from SSG J.M., a noncommissioned officer, then
known by the said [appellant] to be a noncommissioned
officer, to “Go directly to see your case manager,” or
words to that effect, an order which it was his duty to
obey, did, at or near Fort Sam Houston, Texas, on or about
22 Dec 10, willfully disobey the same.
Consistent with his pretrial agreement, appellant entered a plea of guilty to
the charged offense. In explaining his guilt to the offense, appellant provided:
ACC: On Spec 2, ma’am, I was told to go see my case
manager. And I had every intention on [sic] going to go
see my case manager, SSG [JM], which was my squad
leader at the time, who told me to go see him.
8
WARREN—ARMY 20110790
....
MJ: Okay.
ACC: I didn’t go see him whenever he told me to, ma’am.
Here, again, there is a substantial basis in law and fact to question the plea.
During his providence inquiry, appellant never swayed from his statement that he
“had every intention on [sic] going to go see his case manager.” The military judge
never provided any definition or further explanation of the element of willfulness to
appellant. 3 Additionally, the military judge did not elicit additional facts to
establish why appellant’s timeline for seeing his case manager constituted an
intentional violation of the order. As such, we find the military judge abused her
discretion in accepting appellant’s plea of guilty to the charged offense.
CONCLUSION
Accordingly, upon consideration of the entire record, including those matters
personally raised by appellant pursuant to Grostefon, we set aside the findings of
guilt to Specification 2 of Charge I; Specification 2 of Charge II; and Specification 2
of Charge III.
We affirm only so much of the findings of guilty to Additional Charge III and
its Specification as provides for findings of Guilty of a violation of Article 86,
absent without leave not terminated by apprehension. The remaining findings of
guilty are AFFIRMED. Reassessing the sentence on the basis of the error noted, the
entire record, and in accordance with the principles of United States v. Sales, 22
M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006),
to include the factors identified by Judge Ba ker in his concurring opinion in Moffeit,
we affirm only so much of the sentence as provides for a bad -conduct discharge,
confinement for three years, forfeiture of all pay and allowances, and reduction to
the grade of Private E1. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the findings and sentence set aside by this
decision, are ordered restored. See UCMJ art. 75(a).
3
“Willful disobedience means an intentional defiance of authority.” Benchbook,
para. 3-15-2.
9
WARREN—ARMY 20110790
Senior Judge COOK and Judge HAIGHT concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
10 | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1346119/ | 252 Ga. 82 (1984)
311 S.E.2d 433
PRINCE
v.
THE STATE.
40319.
Supreme Court of Georgia.
Decided January 19, 1984.
Rehearing Denied February 10, 1984.
Thomas F. Jarriel, for appellant.
Willis B. Sparks III, District Attorney, Thomas J. Matthews, Charles H. Weston, Assistant District Attorneys, Michael J. Bowers, Attorney General, Paula K. Smith, Staff Assistant Attorney General, for appellee.
HILL, Chief Justice.
Russell A. Prince was convicted on February 24, 1983, of the rape and murder of Odessa Paige Hadden and was sentenced to two consecutive life terms.[1] The victim was found dead in her home around 7:45 on the morning of August 26, 1982. At approximately 8:15 a. m., the Bibb County police arrived at the scene. The victim was found lying on the floor beside the bed, nude, legs spread apart with the right leg propped up against the bed frame. Rigor mortis was setting in.
The autopsy revealed multiple bruises and contusions on the victim's neck and a collapsed larynx. There were also bruises and contusions on the external genitalia. Sperm was found in the genital tract and what appeared to be dried semen was observed on the abdomen. Based upon the position and condition of the body, the medical examiner concluded that the victim died as a result of manual strangulation during an act of forcible intercourse. *83 The defendant turned himself in to the police at approximately 4:40 p. m. on August 26, 1982. The defendant admitted that he caused the victim's death but claimed that he and the victim had had consensual sexual relations and that her death was an accident. He testified that after the two of them smoked marijuana, the victim became violent during intercourse. He admitted grabbing her by the throat and hearing something pop and that thereafter the victim could not catch her breath. He stated that he poured shampoo on the victim's vagina before leaving.
1. The defendant urges that the court erred in overruling his motion for directed verdict on both counts. As for the rape, he urges that it was consensual. As for the murder, he urges that there was no evidence of malice. The jury was authorized to find, from the intense pattern of hemorrhages on the victim's face, that a great deal of force had been exerted to the neck of the victim over a period of time. Thus, there was evidence from which the jury was authorized to find malice. From this and other evidence the jury was authorized to find that the intercourse was forcible and against the victim's will. The court did not err in overruling the motions for directed verdict, and the evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to enable a rational trier of fact to find the defendant guilty of murder and rape beyond a reasonable doubt.
2. The court did not err in overruling defendant's objection to the following testimony by the medical examiner, Dr. Erbele.
"Q Why do you conclude, based on what you say as a medical person or as a doctor, as a Medical Examiner why did you conclude that this intercourse was forcible?
"A In the first place, she was fixed in rigor with her legs spread. She had been killed and left with her legs spread. Intercourse had been forcible in view of the bruises to the vulva. There was sperm in the vagina. There was a track on her abdomen that looked like sperm dried sperm....
"Q Is that, in your opinion, inconsistent with consensual sex?
"A Yes."
Defense counsel objected that the witness had not been qualified as an expert in the field of consensual sex; i.e., in the field of human sexual relations. The objection was overruled. On appeal the defendant points out that consent was an ultimate issue for the jury. The medical examiner also testified that in his opinion the victim was strangled during intercourse "because women just don't die with their legs spread...." We find no error under the facts of this case.
3. The defendant urges that the court erred in allowing the medical examiner to testify as to the defendant's intent, in not making any ruling on his objection and in allowing the witness to *84 make harmful and unsolicited comments during argument upon the objection. The witness testified that a great deal of force would have to be applied to collapse and break the larynx. When asked whether such injuries could occur unintentionally, defense counsel objected. During an attempt to rephrase the question and further objections, the witness said: "In this one it was obvious, if that gives you an idea of the force." There was no motion to strike the witness' statement.
4. The defendant contends the trial court erred in overruling his motion for mistrial based on the medical examiner's testimony that in his opinion the victim was "manually strangled during an act of forcible rape." The defendant urges that the word "rape" is a legal conclusion which must be determined by the jury. The court sustained the defendant's objection but overruled the motion for mistrial. No curative instructions were requested. Thereafter the prosecutor and medical examiner used the word "intercourse." It is within the discretion of the court to grant or deny a motion for mistrial. There was no abuse of discretion here.
5. The defendant claims the trial court erred in overruling his objection to the opinion testimony of another expert witness which was based on photographs of the victim. The witness had testified that in his opinion the victim had been strangled. When asked what factors led him to that conclusion, the witness specified, over objection, the multiple contusions and abrasions on the neck and the intense pattern of hemorrhages scattered about the face. The defendant claims that the expert witness should have been examined by hypothetical questions since his opinion testimony was not based on personal knowledge. After an expert testifies as to his opinion, he may be examined as to the factors which he considered in formulating that opinion. We find no error here.
6. The trial court did not err in refusing to grant the defendant's motion for mistrial which was based on the fact that the coroner, who was listed as a state's witness but who did not testify, had been seen associating with some jurors before voir dire and jury selection. Defense counsel had questioned the potential jurors as to state's witnesses. In addition, when the coroner's conduct was learned, the court gave counsel for the defendant the opportunity to expose any misconduct by questioning the empaneled jury about any conversation with the coroner. Counsel for the defendant refused this opportunity. We find no error here.
7. The defendant claims the trial court erred in refusing to give the charge he requested that the fact that he did not conceal himself could be considered as some evidence of his innocence. The defendant also claims the trial court erred in charging the jury on flight. The defendant did not call for assistance for the victim. *85 Instead, the evidence showed that the defendant left the scene of the crime and went to a nearby cemetery and sat on a gravesite for about 20 minutes. He then went to his mother's house, climbed in the window and went to sleep. We find no error here.
8. The defendant claims the trial court erred in refusing his request to charge the jury on tampering with evidence at the scene of the crime, citing Mason v. State, 236 Ga. 46 (6) (222 SE2d 339) (1976). In Mason we found no error in the trial court's refusal to give such instruction and the evidence supporting such a charge was stronger there than here.
9. The defendant contends that the trial court erred in charging that if the jury found that the defendant unlawfully and intentionally strangled and killed the victim, as charged in the indictment, with his "hands," the jury would be authorized to, and should, find the defendant guilty of murder. He urges that the evidence showed that he used only one hand and that the court's use of the plural created the impression of a deliberate and wilful act not supported by the evidence. We find no error.
Judgment affirmed. All the Justices concur.
NOTES
[1] The defendant's motion for new trial was overruled by the trial court on July 13, 1983, a notice of appeal was filed, the record was transmitted to this court on August 29, 1983, and the case was submitted on briefs on October 14, 1983. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346321/ | 311 S.E.2d 50 (1984)
STATE of North Carolina
v.
James Leon JOHNSON.
No. 824SC1218.
Court of Appeals of North Carolina.
February 7, 1984.
*51 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Francis W. Crawley, Raleigh, for the State.
Appellate Defender Adam Stein by Asst. Appellate Defender Ann B. Petersen, Raleigh, for defendant-appellant.
JOHNSON, Judge.
Defendant raises one question in his appeal: Whether the trial court improperly excluded evidence that the prosecuting witness suffered a sexual assault about two years previously. For the reasons set forth below, we answer the question in the affirmative. The court ruled that "evidence of and mention of an alleged prior sexual assault" was irrelevant and inadmissible since it did not fall within the purview of any specific exception in the rape victim shield statute, G.S. 8-58.6(b). Defendant proposed to introduce statements concerning the prosecuting witness' prior rape, which statements were allegedly made by the prosecuting witness both to defendant and to the examining physician, and statements concerning the fact that at the preliminary hearing she denied making any such statements.
We believe that the decision of the Supreme Court in State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982), directly controls our decision. In Younger, as here, the witness' testimony at the preliminary *52 hearing and her previous statement to the examining physician regarding prior sexual activity differed markedly. There, as here, credibility was the critical issue. In holding that the trial court erred in excluding the evidence, the Supreme Court stated:
Impeachment by prior inconsistent statements is a practice invoked in all types of trials against all types of witnesses. This was not an attempt by the defendant to impeach the credibility of the witness by revealing acts of prior sexual conduct, rather it challenges her credibility through her own prior inconsistent statements. The fact that this question includes a reference to previous sexual behavior does not prevent its admission into evidence, instead the sexual conduct reference goes to the degree of prejudice which must be balanced against the question's probative value.
Id. at 698, 295 S.E.2d at 456-57. The court must still weigh the prejudicial effect of such evidence against its probative value. Id. at 697, 295 S.E.2d at 456. Here, however, the court failed to do so, and therefore it could not have exercised its discretion in deciding the matter. The witness' testimony in question formed the case both for and against defendant. The only real contest concerned credibility. Under Younger, supra, exclusion of the evidence of one witness' inconsistent statements was clearly prejudicial and requires a new trial.
In any event, the exclusionary rule of the rape victim shield statute does not appear to reach the particular evidence in question here. The statute primarily addresses evidence of a "general reputation for unchastity." See State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980). One might strain to construe the phrase "sexual behavior" in G.S. 8-58.6(a) to include submission to forcible rape, but we find nothing in the statute or the prior law to show that such a construction is warranted. Traditional rules barring prejudicial evidence of little probative value should serve to ensure that this sort of evidence is routinely excluded except where, as here, it has some other relevant purpose.
As to the charge of rape, the excluded testimony was relevant to both the issue of Mrs. Nichols' credibility and to the defense of consent. Defendant testified that once he was inside the trailer, he used the bathroom and then returned to the living room; that he and Mrs. Nichols had a conversation and then embraced and kissed; that he suggested the bedroom and she agreed; and that they engaged in consensual sexual activity. Further, that the two had a lengthy conversation about Mrs. Nichols' background and wedding; that they looked through a photo album and that Mrs. Nichols gave defendant a picture of herself. Defendant testified that after their talk, he and Mrs. Nichols again engaged in sexual intercourse and afterwards conversed about the possibility of her becoming pregnant.
Mrs. Nichols testified that she changed her clothes and when she came out of the bathroom, the defendant grabbed her from behind, put his hand over her mouth, told her not to scream and pushed her face down on the bed. Then defendant pulled her off the bed and, standing behind her with his hand over her mouth, ultimately removed her clothes. Defendant then alternately performed cunnilingus and intercourse with her; throughout the time that defendant undressed her and partially undressed himself, he held his hand over her mouth. She did not struggle, bite, scratch or scream. Mrs. Nichols testified further that afterwards, defendant washed himself off, pushed her back into the living room, took a picture of her out of the photo album and told her to write something on the back. She did so and then defendant ran out the back door.
It is defendant's contention that the only way he could have learned about an event as personal and intimate as Mrs. Nichols' prior rape was by her statements to him while they were sitting around, looking through her photo album and discussing her background. Further, that disclosure of such personal information is only likely to be made to a person with whom the alleged victim has shared some sort of physical or emotional intimacy and that circumstantial *53 evidence of this nature gives rise to the inference of a consensual sexual encounter. We agree and hold that the exclusion of testimony regarding Mrs. Nichols' prior rape prejudiced the defendant in his attempt to establish a defense on the basis of consent.
Because of the erroneous application of the rape victim shield statute, defendant is entitled to a new trial on the rape and sexual offense charges. He was also convicted of the crime against nature, which the shield statute does not address. G.S. 8-58.6(c). His defense focused on the issue of consent; however, consent is not a defense to the crime against nature. State v. Adams, 299 N.C. 699, 264 S.E.2d 46 (1980); State v. Poe, 40 N.C.App. 385, 252 S.E.2d 843 (1979).
Nevertheless, the State must prove every element of the crime against nature, including the element of penetration. See State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978). The prosecuting witness testified that defendant penetrated her with his tongue; defendant denied penetration. The examining physician's report indicated that cunnilingus was "attempted," but no other evidence of penetration appears in the record. Thus, the credibility of the prosecuting witness' testimony again constituted the only real issue for the jury to resolve. The rationale of Younger compels the conclusion that exclusion of the prior inconsistent statements was equally prejudicial to defendant on the crime against nature charge. The prosecuting witness' testimony supplied the essential elements of the State's case and therefore the exclusion of the proffered evidence prejudiced defendant, requiring a new trial. State v. Younger, supra; State v. Hackett, 22 N.C.App. 619, 207 S.E.2d 362 (1974).
We hold that there must be a new trial as to all three charges.
New trial.
BECTON and BRASWELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346164/ | 252 Ga. 76 (1984)
311 S.E.2d 174
BRYANT
v.
MAYOR & CITY COUNCIL OF AMERICUS et al.
40253.
Supreme Court of Georgia.
Decided January 19, 1984.
Rehearing Denied February 9, 1984.
William Jonathan Murray, for appellant.
C. Oliver Oxford, for appellees.
SMITH, Justice.
In February 1983 appellant Eddie L. Bryant, Jr., was arrested and in March 1983 he was indicted on one count of possession of marijuana with intent to distribute. Disposition of his criminal case remains pending. At the time of his arrest Bryant held a license issued by the City of Americus to sell alcoholic beverages. In April 1983 the chief of police petitioned the city council to revoke Bryant's liquor license on grounds that his possession of marijuana violated a city ordinance. The ordinance states, in pertinent part, certain grounds for revocation of such a license, including: "(A) The violation by the license holder or his employee of any federal, state, or local law or ordinance relating to the use and sale of drugs or alcoholic beverages ... (C) Any conduct on the part of the license holder or his employee contrary to the public health, safety, health or morals of the citizens of Americus." Code of City of Americus § 3-38 (A) & (C).
Bryant was not notified that this petition would be presented and neither he nor his representative appeared in order to controvert any evidence offered by the police chief. The city council heard testimony concerning the petition and voted to revoke Bryant's license, subject to his right to a hearing, and he was notified of this action on April 15. He requested a hearing (which automatically stayed the revocation) which was scheduled for and conducted on May 11, 1983.
At the May hearing Bryant was represented by counsel who sought to voir dire the aldermen as in the manner of a judicial trial. He was not allowed to do so, but in response to his request the mayor read a statement to the council members as a group, asking any alderman who could not base his decision solely on the evidence about to be heard to disqualify himself from voting. No member responded and after Bryant presented evidence and witnesses in his behalf, a majority of the council voted to uphold the revocation.
Bryant also sought injunctive relief against the council's revocation action and in July 1983 the Superior Court of Sumter County dismissed his complaint, denying his request for a temporary restraining order on the principal ground that the decision was largely committed to the discretion of the city council as an administrative matter. It is from this order granting dismissal that Bryant appeals.
1. In his first enumeration Bryant contends that the ordinance sections cited above are unconstitutionally overbroad, citing Atlanta Attractions, Inc. v. Massell, 463 F2d 449 (5th Cir. 1972). The trial *77 court in Atlanta Attractions ruled that so much of the ordinance in question there as authorized revocation "for the violation of any state or federal law, or for the violation of any city ordinances other than traffic ordinances," was overbroad. 330 FSupp. 865 (N.D. Ga. 1971). The Court of Appeals affirmed on other grounds and, as we observed in Loyal Order of Moose, Inc. v. Mayor &c. of the City of Dalton, 246 Ga. 298 (271 SE2d 354) (1980), the only portion held overbroad was that portion allowing "revo[cation] for the violation of any state law." Id. at 300. The ordinance here is not nearly as broad as the ones examined in these foregoing cases. The Americus ordinance sets out as grounds the violation of any federal, state or local law or ordinance relating to the use and sale of drugs or alcoholic beverages. This additional phrase narrows the scope of the ordinance to within boundaries set by the 14th Amendment to the Constitution of the United States, and cures the infirmities recognized to inhabit the more loosely drafted ordinances in Atlanta Attractions and Loyal Order of Moose, supra. Therefore we find no merit in this enumeration.
2. In his second enumeration appellant contends that it was error to fail to find that the ordinance did not set forth ascertainable standards for revocation of licenses consistent with due process, as required by OCGA § 3-3-2 (Code Ann. § 5A-502). As we said in section (1) of this opinion, supra, the ordinance sets out clear grounds for revocation. These grounds, as stated, plainly meet the "ascertainable standards" requirement of OCGA § 3-3-2 (Code Ann. § 5A-502). The ordinance commits to the sole discretion of the mayor and city council the determination of whether or not these grounds to revoke exist in a given case. The authority of the mayor and city council granted by the ordinance does not per se derogate from or conflict with due process principles. There is no merit in this enumeration.
3. Appellant was arrested on February 25, 1983. On February 28, 1983, the mayor and city council adopted an amendment to the then existing ordinance § 3-38, deleting any requirement that a license holder be given prior notice of revocation proceedings. The new ordinance stated that after revocation the licensee was to be sent a written notification of the reasons for the action. An aggrieved party has the right to an automatic appeal hearing to be held within 20 days where the party can appear with counsel, have witnesses appear in his behalf, and have the opportunity to cross-examine opposing witnesses. Appellant contends that the pre-amendment ordinance applied to his case because he was arrested prior to enactment of the amendment and that he is entitled to an adversary hearing prior to any action on the part of the mayor and city council to revoke. He contends that the trial court's ruling violates the due process and *78 equal protection provisions of the constitutions of the United States and Georgia.
We disagree. Appellant's license was revoked subject to his right to an automatic appeal and pursuant to an objective procedure incorporating standards and grounds set out in the ordinance. Appellant has not met the prescribed standard for maintaining his license, that is, he was found to have violated a law relating to the use and sale of drugs. He exercised his right to request and receive a hearing on the matter, at which time he was allowed to attempt to controvert the evidence presented against him. Due process requires no more.
As to the ex post facto problem posited by appellant, the amendment merely effected a procedural change, not one involving a substantive right. See Todd v. State, 228 Ga. 746 (187 SE2d 831) (1972). It merely allowed the city council to revoke licenses without a hearing should the licensee not desire to be heard. The amended procedure is consistent with due process and OCGA § 3-3-2(b)(3) (Code Ann. § 5A-502). See Sokolic v. Ryan, 304 FSupp. 213 (S.D.Ga. 1969).
4. Appellant next contends that no violation of the ordinance providing grounds for support of revocation was proved. There is nothing in the record to indicate that this issue was raised or decided in the superior court, therefore there is nothing for this court to review on appeal.
5. In his fifth enumeration appellant contends that it was error to deny injunctive relief where he had been forced by the revocation hearing procedure to choose between his right to remain silent as to a pending criminal indictment and the desire to testify as to the same issues and events before the city council in order to retain his license.
We disagree. The city council was not required to delay its hearing pending judicial disposition of criminal charges against the appellant. Although the revocation hearing was not a criminal proceeding as contemplated by the 5th Amendment, appellant could have, but did not, assert his right to remain silent, and it was not a violation of his right not to be compelled in a criminal case to be a witness against himself to hold the revocation hearing. See, e.g., McCabe v. Dept. of Registration, 90 Ill. App. 3d, 1123 (413 NE2d 1353) (1980), cert. denied, 454 U.S. 838 (102 SC 143, 70 LE2d 119); Herberg v. Commw. St. Bd. of Medical Ed. and Licensure, 442 A2d 411 (Pa. 1982). There is no merit in this enumeration.
6. In his final enumeration appellant contends that the lower court erred in refusing to rule that appellant was entitled to engage in voir dire of the mayor and the aldermen, and also in not allowing him to submit evidence of the bias of the same body. He does not intimate *79 that any or all of the hearing body members were acting with a particular bias and prejudice, nor does he suggest the nature of that supposed bias or point to any proposed submission of evidence that would demonstrate it.
In response to appellant's request at the hearing, the mayor addressed the aldermen as a group and asked any alderman who would not be able to base his decision solely on the evidence to be presented at the hearing to disqualify himself. No alderman asked to be disqualified and the hearing proceeded. Appellant cites no authority (and we know of none) for the proposition that an administrative body functioning as both judge and trier of fact may be questioned as in voir dire of a jury in a court of law.
In regard to the issue of bias, appellant neither shows what evidence he intended to submit to the court below nor does he set out in substance the evidence he contends was improperly excluded. As a result his enumeration presents no instance of prejudice or bias on the part of the city council and thus no error in any related ruling by the superior court. There is no merit in this enumeration.
Judgment affirmed. All the Justices concur, except Weltner, J., who dissents as to Division 3. Marshall, P. J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346181/ | 311 S.E.2d 43 (1984)
Rheta M. ROGERS
v.
Richard KELLY and wife, Mrs. Richard Kelly.
No. 8330DC103.
Court of Appeals of North Carolina.
February 7, 1984.
*44 Jones, Key, Melvin & Patton by R.S. Jones, Jr., Franklin, for plaintiff-appellant.
McKeever, Edwards, Davis & Hays by George P. Davis, Jr., Murphy, for defendant-appellee.
BRASWELL, Judge.
A tenant in common sues for rents and for possession of the common premises, a drugstore, leased by only one of the two tenants in common to a third party, the defendants. The plaintiff, as non-lease signing cotenant, appeals from the trial court's granting of defendant-lessee's motion for summary judgment and from the denial of her own motion for summary judgment. The standard for our review is to determine from the record, the pleadings, affidavits and evidence presented at the hearing, whether the facts show that there is a genuine issue as to any material fact that would show a party was entitled to a judgment as a matter of law. Johnson v. Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980).
Rheta Rogers, the plaintiff, and William R. Rogers, her former husband, purchased the subject drugstore property in the Town of Hayesville in 1966 as tenants by the entirety. In 1980 Mr. and Mrs. Rogers were divorced. According to the terms of a "Custody, Support, and Property Settlement" agreement of 26 August 1980 which was incorporated into a consent judgment of the same date, Mr. and Mrs. Rogers agreed to a division of their property. Mrs. Rogers received, among other things, the dwelling house and approximately twelve acres. Mr. Rogers' part is described thusly:
All remaining assets accumulated by the parties during their marriage shall be appraised, and equally divided by value between the parties.... Husband shall receive all the remainder of the assets and shall pay Wife in cash or by conveyance *45 of an accumulated asset of his choice for the balance of her share, at their appraised value, in lieu of cash. (Emphasis added).
From the date of divorce to the date of trial there has been no completed appraisal or actual division of the accumulated and remaining assets of the marriage. For purposes of the summary judgment hearing Mr. Rogers gave an affidavit for the defendants which shows that he intended at all times for the drugstore property to be his alone after the divorce. Mr. Rogers has not implemented the possibility of divestment of this property from Mrs. Rogers.
The deed recorded at the courthouse shows ownership as tenants by the entirety in Mr. and Mrs. Rogers. Upon absolute divorce in 1980 this legal title was converted to a tenancy in common. Smith v. Smith, 249 N.C. 669, 107 S.E.2d 530 (1959). When this action was filed on 5 May 1981 we hold that the plaintiff Rheta Rogers and her former husband each owned a one-half undivided interest in the property. Nothing in the property settlement agreement has yet changed this legal conclusion. As between this plaintiff and these third-person defendants, the property settlement between Mr. and Mrs. Rogers is of no effect. Title and ownership has never been changed at the courthouse. Mr. Rogers is not a party to this lawsuit.
After the final divorce Mr. Rogers alone leased the drugstore to the defendants. About December 1st or 2nd, 1980, the defendants took possession under a verbal agreement, which was converted to a written agreement in June of 1981. According to defendant Richard Kelly, "Mr. Rogers let us move in without paying rent until we could afford it. Mr. Rogers helped us, because I guess it's to his best interest that it be rented, because he's getting rent money." Mr. Kelly's deposition also stated that he and his wife, the defendant Linda Kelly, agreed to pay to Mr. Rogers only the sum of $840 monthly rent. Only two rent payments were made in 1981 "due to the fact that William Ray Rogers is helping us in the business as a friend," and from 1982 rent was paid for January through June. Kelly's Pharmacy is operated by defendants in the leased property. Mr. Kelly admits that no rent has been paid to Mrs. Rogers. Mrs. Kelly, by her deposition, substantially adopted the deposition of her husband, and there are no facts different from the above.
In her complaint the plaintiff sues for "possession of the subject premises" and for "[h]er proportionate share of the rental value of the premises from January 1, 1981 until possession is returned to Plaintiff, in the amount of $500 per month." She alleges "the fair rental value" to be $1,000 per month.
On 29 December 1980 plaintiff's attorney wrote a letter to the defendants, now of record as Exhibit C. After indicating some information had come to Mrs. Rogers' attention about an arrangement for defendants to occupy the building, the letter informs the defendants that Mrs. Rogers is owner of a one-half undivided interest, and that
Mrs. Rogers does not wish to interfere with your taking possession of and entering into a lease in connection with the building. She is simply desirous of being sure that she is fully aware of the business transaction involved, and that she is going to receive her just portion of all rental payments due.
Upon this background we now inquire into the rights of one tenant in common against the third-person lessee of the other cotenant. In essence, we interpret the complaint as an action in ejectment with a claim for money damages of one-half fair rental value of the premises during the time of occupancy. See Baldwin v. Hinton, 243 N.C. 113, 117, 90 S.E.2d 316, 319 (1955). The Baldwin case also states that "[i]n an action for trespass, a tenant in common may recover judgment only for his proportionate part of the damages; but in an action in ejectment, one tenant in common may recover the entire tract against a third party." Id. at 118, 90 S.E.2d at 319. In Baldwin, unlike here, the third parties (the defendants) were not lessees of a cotenant *46 but claimed the property "under deed pursuant to foreclosure of [a certain] deed of trust." Id.
Discovering no North Carolina case directly on point, we now look to the general rule, and interpret it to be:
[A] lease by one tenant in common ... is valid and effectual to the extent of the lessor's interest, and entitles the lessee to occupy, use, and enjoy the premises as fully as the lessor himself might do but for the lease.
The lease does not bind the interests of nonjoining owners, absent ratification or authorization by them, and in so far as it purports to bind those interests it is invalid; but, at least in most jurisdictions, it is an inaccuracy to state broadly that the lease is "invalid" as to, or is "voidable" by, the nonjoining owners, since under the doctrine of most jurisdictions they clearly are required to respect the rights vested in the lessee, and cannot exclude him from the premises during the term of the lease.
Annot., 49 A.L.R. 2d 797, 798 (1956).
In this case because of the actual exclusion of the plaintiff-cotenant from the premises of the drugstore building, the lessee has a liability to the nonjoining plaintiff-owner for use and occupation which here can be satisfied by the paying of a proportional fair rental value. As stated in 49 A.L.R.2d at 805, "It is very plain in all jurisdictions that one tenant in common ... is not by reason of his character as such able or authorized to bind by lease the interests of any other owner." Here, in effect, for the term of the lease the defendants become substantially a cotenant of the nonjoining plaintiff-owner, and the plaintiff "can claim no other or greater rights against the lessee than he could assert against the lessor himself." 49 A.L.R.2d at 810.
The forecast of the evidence shows that the plaintiff, as a cotenant, does have some rights against the defendants. On this record we hold that there is no genuine issue of fact on the issue that defendants owe the plaintiff one-half the fair rental value of the premises, and thus plaintiff was entitled to summary judgment on the issue of liability. However, because the question of what is fair rental value does not lend itself to be decided as a matter of law it was error for the trial court to grant summary judgment for the defendants. The case must be remanded to decide the factual issue: What is the fair rental value for Rheta M. Rogers' one-half undivided interest in the leased drugstore premises from 1 January 1981 through the end of the lease [or such period as she owns a one-half undivided interest]?
We hold that plaintiff is not entitled to "possession" of the premises as alleged in her complaint. Just as one cotenant cannot eject another cotenant from rightful occupancy, and with Mr. Rogers' lessee standing in his shoes as that of a cotenant in possession, the defendants may remain in possession for the duration of the lease, subject to the duty to pay plaintiff as owner her proportional fair rental value.
While the letter of 29 December 1980 from plaintiff's counsel to defendants shows that plaintiff does not object to the premises being leased, and asks for rents, other evidence shows no lease existed on that date. The plaintiff has not been shown to have ratified the subsequent oral or written lease as to rental terms. Also, a nonjoining cotenant cannot be bound by one tenant's leasing of more than his own interest for free rent. While the monthly rental of $840 used in Mr. Rogers' lease to the defendants would furnish some evidence of fair rental value, the plaintiff, not having ratified any of the terms of the lease, is not to be bound from offering evidence to the contrary, if there be any.
The results are: summary judgment for defendants is reversed. The trial court erred in not entering summary judgment for the plaintiff on the issue of liability. The cause is remanded to the trial court to determine the one issue of damages as to fair rental value.
Reversed in part and remanded.
HEDRICK and EAGLES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346198/ | 47 Wash. 2d 570 (1955)
288 P.2d 841
RICHARD V. BURWELL, Individually and as Guardian ad Litem for Richard H. Burwell, a Minor, Respondent,
v.
RUTH L. MOORE, Appellant.[1]
No. 33237.
The Supreme Court of Washington, Department One.
October 13, 1955.
Metzler & Ruff, for appellant.
Goodwin & Hicks, for respondent.
SCHWELLENBACH, J.
This is an appeal from a judgment, entered after a jury verdict, in a personal injury case.
The accident occurred at the intersection of north Alder and north 21st streets, in Tacoma. North Alder runs in a northerly and southerly direction, and north 21st street runs easterly and westerly. At the northeast corner of the intersection, on 21st street, is a bus stop. At the northwest corner is Larsen's Grocery. That corner is known as Larsen's Corner. In the center of the intersection there is an overhead traffic light, called a four-way traffic light, which flashes off and on red. There is a traffic stop sign on each corner. Well-defined crosswalks are on each side of the intersection.
On the morning of September 24, 1953, at about eight o'clock, Miss Moore, a schoolteacher, was driving north on Alder on her way to school. With her were four other teachers. The weather was clear, the roadway dry, and the visibility good. She stopped at the south crosswalk, looked to the right and to the left, and did not see any cars. She noticed two cars a block or two distant headed south on Alder. She saw the bus across the street. It was stopped and headed west. She noticed many children on both corners. A large number of them were getting on the bus. She had driven this route for years and was acquainted with the fact that the bus hauled school children at that hour of the morning.
She started across the street in low gear and shifted to second while under the stop light. At that time, there were no children in the crosswalk ahead.
Just as she got to the crosswalk, she heard someone exclaim and saw Richard Burwell, an eight year old boy, *572 darting toward the car. She put on her brakes, but the boy was struck and thrown under the front of the car. The impact occurred between the left front light and the radiator ornament of the car. The boy was not too seriously injured. The plaintiff sued for judgment in the sum of $2,245 and was awarded $2,094.25 by the jury.
According to the testimony, the boy was running across the street with his head down, and was not looking to the right or to the left. One witness testified that he drove south on Alder; that when he stopped at the crosswalk at Larsen's Corner, Richard was standing on the corner; that he then ran in front of the witness' car and proceeded along the crosswalk in the direction of the bus with his head down.
Richard and his sister were on their way to school that morning, intending to catch the bus. They had taken this route for a couple of years. As they approached Larsen's Corner, they saw the bus coming. When they arrived at the corner, it had stopped across the street and was taking on passengers. The sister had recently hurt her hip while ice skating, and she told Richard to go ahead and to tell the bus driver that she was coming.
The boy's mother was called to the scene, and she told spectators that she had warned him many times to be careful about crossing the street. Richard testified that his mother had told him "most all the time" to look both ways before he crossed the street.
Error is assigned to the trial court's failure to order a directed verdict at the close of the testimony; in giving an instruction; in denying motion for judgment n.o.v. or in the alternative for a new trial; and in entering judgment in the plaintiff's favor.
Appellant contends, first, that there was no substantial proof of any negligent act on her part which proximately caused respondent's injuries, and, second, that respondent child was guilty of contributory negligence as a matter of law.
Appellant relies on Rettig v. Coca-Cola Bottling Co., 22 Wn. (2d) 572, 156 P. (2d) 914, wherein we said:
*573 "The statute gives the right of way to a pedestrian crossing a roadway at an intersection, and requires the operator of a vehicle to yield the right of way to him and, if necessary to do so, such operator must slow down or stop the vehicle. Before this duty arises, the operator must be in a situation whereby he is either aware of the presence of a pedestrian within a crosswalk, or, if he had been exercising reasonable care in looking out for and anticipating the presence of a pedestrian within such crosswalk, he should have become aware of his presence there.
"In the case before us, a small boy stepped from a bus, ran around in front of it, and pursued a diagonal course directly in front of the truck traveling in the same direction as the bus had traveled."
In that case, a bus stopped, and a lady and her two children got off. The defendant's truck was following the bus. When the lady stopped, the truck driver slowed down and then swerved to the left to pass the bus. In the meantime, the boy alighted from the bus ahead of his mother and sister and started around the front of the bus and was hit by the truck. The case was submitted to a jury, and it found for the defendant. Upon appeal, we affirmed. The jury was instructed, as appears from the opinion:
"That it was the duty of the driver of the truck to exercise such care as a reasonably careful and prudent driver would exercise under the circumstances to avoid a collision with or striking the boy, and if he could have avoided the collision by keeping a careful lookout ahead for other users of the highway, then it was his duty to exercise such reasonable care. The jurors were told that if they found, from a preponderance of the evidence, that a reasonably careful and prudent truck driver in the exercise of reasonable care could have avoided a collision with or striking the boy by keeping a reasonably careful lookout ahead for other users of the highway, and that the driver of the truck failed to exercise such care, then the defendant would be guilty of negligence; and if they found such negligence was a proximate cause of the accident, they should find a verdict for the plaintiff. The court further told the jurors that, if they found from the evidence that, under the circumstances and conditions, a reasonably careful and prudent truck driver exercising reasonable care would have stopped his truck before passing or attempting to pass the front of the bus, *574 then it was the duty of such driver to exercise such reasonable care and to stop the truck, and failure to do so would be negligence on the part of the defendant and the plaintiff would be entitled to a verdict."
Another case relied upon by appellant is Haydon v. Bay City Fuel Co., 167 Wash. 212, 9 P. (2d) 98. There, a small boy darted out from behind a large mailbox and ran across the street directly in front of a truck. The driver had only a fraction of a second to avoid hitting the boy after he saw him. We reversed a judgment in the boy's favor because there was no evidence of negligence on the driver's part.
In the case at bar, appellant contends that the evidence shows that she was free from negligence because she did everything that a reasonably careful and prudent driver could do under the circumstances; that she stopped at the south crosswalk and looked in both directions; that she then proceeded into the intersection in low gear and shifted into second while under the traffic light; and that she did not see the boy or have reason to suspect that he was there until she had no opportunity to avoid hitting him.
[1] However, the evidence before the jury was not limited to those facts. Appellant was a schoolteacher. She had driven this route many times. She saw the bus taking on children. She saw children on both corners. She was acquainted with the fact that the bus hauled school children at that hour of the morning. It was a question of fact for the jury to determine whether or not, under those circumstances, she should have been on the lookout for those children whom she saw on Larsen's Corner and who would perhaps be going across the street to catch the bus.
[2] Furthermore, the court gave instruction No. 14, to which no exception was taken; and which became the law of the case:
"You are instructed that under the provisions of the traffic ordinance of the City of Tacoma, a pedestrian within the boundaries of a marked crosswalk, at the intersection of North 21st Street and North Alder Street, has the right-of-way over vehicles traveling through said intersection.
"In connection herewith, if you find that Richard H. Burwell was crossing North Alder Street, within the boundaries *575 of the marked crosswalk, at the same time that defendant, Ruth L. Moore, was operating her automobile through the intersection of North Alder Street and North 21st Street, then you are instructed that the defendant, Ruth L. Moore, had a duty to yield the right-of-way to Richard H. Burwell."
[3] We are satisfied that there was sufficient evidence to submit the question of appellant's negligence to the jury.
[4] The trial court properly and adequately instructed the jury concerning contributory negligence. Had the jury found, as a fact, that the plaintiff was guilty of contributory negligence under the evidence, we would not disturb its verdict. But the jury did not so find. The boy did not start across the street until an automobile at his immediate left had come to a complete stop at the crosswalk. As he ran across the street, he stayed within the marked boundaries of the crosswalk. He had the right of way. The jury could have concluded that this boy was not reckless, but that he believed that users of the street would yield the right of way to him. We cannot say, from all of the evidence, that reasonable minds could not differ as to whether or not the boy was guilty of contributory negligence. That issue was a jury question. Ashley v. Ensley, 44 Wn. (2d) 74, 265 P. (2d) 829.
[5] Error is also assigned to an instruction given by the court defining the duties of a driver on public streets. A specific exception was made to the instruction in the trial court. However, on appeal appellant urges that the court erred in giving the instruction for an entirely different reason than that contained in the exception given in the trial court. The rule is that an exception to an instruction based upon a specific ground is insufficient to permit the party to predicate error in the instruction based upon entirely different grounds. Gile v. Nielsen, 20 Wn. (2d) 1, 145 P. (2d) 288.
The judgment is affirmed.
HAMLEY, C.J., DONWORTH, FINLEY, and OTT, JJ., concur.
NOTES
[1] Reported in 288 P. (2d) 841. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346220/ | 47 Wash. 2d 461 (1955)
288 P.2d 242
CLARA MARCELLA GROVE, Respondent,
v.
CLAYTON EDWIN PAYNE et al., Appellants.[1]
No. 33052.
The Supreme Court of Washington, Department One.
September 22, 1955.
W.C. Losey, for appellants.
Joseph P. Delay, for respondent.
FINLEY, J.
This is an action to quiet title to real property situate in Pend Oreille county. On November 22, 1916, defendant Clayton E. Payne executed a will which provided that, upon his death, the real property in question should be sold and the proceeds divided equally among his five brothers and sisters. Mr. Payne's sister, the plaintiff Clara Grove, was appointed executrix of this will.
On or about December 27, 1919, Mr. Payne executed a deed which purported to convey the property in question to his sister, the plaintiff. The pertinent provisions of this instrument are as follows:
"THIS INDENTURE WITNESSETH, That Clayton E. Payne (a bachelor) party of the first part, for and in consideration of the sum of One Dollar ($1.00) in lawful money of the United States of America, to him in hand paid by Clara Marcella Grove, party of the Second part, has GRANTED, BARGAINED and SOLD, and by these presents does Grant, Bargain, Sell and Convey unto the said party of the second part, and to her heirs and assigns, subject to will made prior *463 to this date, with such codicils as may be added the following described real property situate, lying and being in the County of Pend Oreille, State of Washington, to-wit: ... [description of the real property follows],
Together with all and singular the tenements, hereditaments, appurtenances thereunto belonging, or in anywise appertaining, and the rents, issues and profits thereof, this indenture being subject to the terms of a certain will and testament made by Clayton E. Payne prior to this date, together with such codicils as may be added subject to this date by the Clayton E. Payne TO HAVE AND TO HOLD, the said premises, with all their appurtenances, unto the said party of the second part, and to her heirs and assigns forever; and the said Clayton E. Payne party of the first part, for himself and for his heirs, executors and administrators, does hereby covenant to and with the said party of the second part, her heirs and assigns, that he is the owner in fee simple of said premises, and that they are free from all encumbrances whatsoever and that he will WARRANT and DEFEND the title thereto against all lawful claims whatsoever...." (Italics ours.)
On the same day that he executed the foregoing deed, Mr. Payne prepared an instrument which purported to be a lease from Mrs. Grove to him for the period of his life. The rent reserved was the payment of the taxes on the property, and Mr. Payne covenanted not to sublet or assign the lease, or any part, without the consent of Mrs. Grove. This instrument further provided that, upon failure to pay the rent, or upon breach of any of the covenants of the lease, Mrs. Grove could re-enter the premises. Mr. Payne sent this instrument to Mrs. Grove, who signed and returned it. Thereafter, both the deed and the lease were recorded by Mr. Payne.
Subsequently, Mr. Payne failed to pay the taxes on this property for the years of 1932, 1933, 1934, 1937, 1952, 1953, and 1954.
On September 24, 1951, Mr. Payne prepared and executed two instruments. One of these was a deed, quitclaiming all of Payne's interest in and to the real property involved herein to Finley F. Taylor. The other instrument was a codicil to his will (executed on November 22, 1916, *464 as mentioned heretofore), whereby Mr. Payne purported to revoke that clause of his will in which he had made a provision for the disposition of the property here involved. The codicil further provided that the property be devised to Finley F. Taylor. Mr. Taylor was in possession of the property at the time Mrs. Grove commenced this action to establish her title to the property as against the defendants.
Judgment was entered in the trial court, declaring: (1) that Mrs. Grove is the owner and entitled to possession of the real property in question; (2) that the defendants have no interest whatsoever in the property, and are forever barred from asserting any claim thereto against Mrs. Grove; and (3) that possession of the premises be returned to Mrs. Grove.
[1] The defendants have assigned error to all of the trial court's findings of fact, but have not set forth verbatim in their brief the challenged portions of these findings, as required by Rule on Appeal 43, as amended, effective January 2, 1953, 34 A Wn. (2d) 47. Mrs. Grove contends that these findings must, therefore, be accepted as verities. We believe that, in all the particulars necessary to a consideration of defendants' arguments, the challenged findings are truly conclusions of law; and, therefore, the scope of review available to defendants has not been limited or restricted by their failure to comply with the rule.
It is clear that this action is one which is governed by the provisions of RCW 7.28.010:
"Any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein, and may have judgment in such action quieting or removing a cloud from plaintiff's title."
In disposing of this appeal, we must first determine whether Mrs. Grove has such a "valid subsisting interest" in the real property as would entitle her to maintain this action by virtue of RCW 7.28.010. The deed from Mr. Payne *465 to Mrs. Grove recites, in the premises thereof, that the property was conveyed to Mrs. Grove "and her heirs and assigns." The habendum clause of this deed provides that the property was conveyed to Mrs. Grove "and to her heirs and assigns forever." Such language clearly indicates that the estate conveyed was to have a duration potentially infinite. It must, therefore, be one of the fee simple estates. I Restatement of Property 39, § 14. However, elsewhere in the deed, the grantor has stated, (1) that the grant is "subject to will made prior to this date, with such codicils as may be added"; and (2) "this indenture being subject to the terms of a certain will and testament made by Clayton E. Payne prior to this date, together with such codicils as may be added subject ... [sic, subsequent] to this date ..."
[2, 3] It is the general rule that, in order to place a limitation upon an estate or to make it conditional, the language used in the deed must clearly indicate such an intent, either by express terms or by necessary implication from the language used. King County v. Hanson Inv. Co., 34 Wn. (2d) 112, 208 P. (2d) 113; 4 Thompson, Real Property (Perm. ed) 563, § 2037; 1 Tiffany, Real Property (3d ed.) 309, § 192. However, when the intent to attach an element of defeasibility to the estate granted is expressed in the deed in plain and unambiguous language, there is no hesitation in enforcing the contract made by the parties. Mills v. Seattle & Montana R. Co., 10 Wash. 520, 39 P. 246. We think it is quite clear that Mr. Payne intended to convey a defeasible estate.
[4] Since the deed provides that the estate created has a duration potentially infinite, but that all interest of grantee in the property may be divested, the estate created must be one of the fee simple estates. IV Restatement of Property 43 (1936), § 16. Any defeasance which may occur must occur by virtue of some will of the grantor, or codicil thereto, becoming operative upon the death of the grantor. Inasmuch as Mr. Payne is now living, it is evident that Mrs. Grove presently has a valid subsisting interest in the real property, sufficient to enable her to maintain this action *466 under the provisions of RCW 7.28.010. Therefore, we do not find it necessary on this appeal to determine the exact nature of the estate granted by Mr. Payne to Mrs. Grove.
[5] Having concluded that Mrs. Grove is entitled to bring this action, we must next determine whether any of the interests asserted by the defendants are superior to the interest established by Mrs. Grove. The gravamen of this type of action is a determination of all the interests claimed by defendants in the property. Symington v. Hudson, 40 Wn. (2d) 331, 243 P. (2d) 484.
[6] The life lease to Mr. Payne would entitled him to a present possessory interest in the real property involved; however, there is a provision in the lease that, upon failure to pay the rent or upon breach of any of the covenants of the lease, the lessor (Mrs. Grove) may re-enter the premises. The failure of Mr. Payne to pay the rent reserved that is, the taxes for the years indicated heretofore constitutes a breach of the lease entitling Mrs. Grove to reenter the premises. She is asserting this right in the instant action. In addition, the quitclaim deed from Mr. Payne to Mr. Taylor was an attempted assignment by Mr. Payne of any leasehold interest he might have, and this, also, would constitute a breach of the covenant against assignment of the lease without the consent of the lessor. Thus, not only by his failure to pay the rent reserved, but by his attempted assignment of the lease, Mr. Payne created in Mrs. Grove a right of re-entry, which she is now exercising by virtue of this action. RCW 7.28.250. In other words, whatever possessory interest Mr. Payne may have had under the terms of the life lease was terminable, and has come to an end.
[7] The quitclaim deed of September 24, 1951, from Mr. Payne to Mr. Taylor, while it may have been sufficient to convey Mr. Payne's potentially voidable leasehold estate, is invalid as a muniment of title, because the leasehold estate of Mr. Payne is terminated. Furthermore, the quitclaim deed is not valid as a conveyance of Mr. Payne's power of revocation by testamentary disposition. The power of revocation reserved by Mr. Payne (in the deed to Mrs. Grove) is not an interest in the property which can be *467 transferred to another. "A power to revoke is not transferable or descendable, nor may it be alienated or passed by will. It is personal to the holder." 3 Tiffany, Real Property (3d ed.) 14, § 681.
[8] The codicil to Mr. Payne's will, executed on September 24, 1951, which provides that the property in question shall be devised to Mr. Taylor, is ambulatory and inoperative until the death of Mr. Payne; therefore, it does not presently vest Mr. Taylor with any interest in the real property involved.
[9, 10] As pointed out above, Mr. Payne's power to revoke by testamentary disposition is a personal, nontransferable one. Furthermore, it is still a valid and subsisting power personal to and in Mr. Payne, although he may have intended to convey or transfer his power of revocation to Mr. Taylor by the quitclaim deed. In other words, an attempt to transfer or alienate a personal power to revoke does not cancel or destroy the power. Mrs. Grove is presently entitled to possession of the land in question. Her interest in the property may or may not be modified or revoked absolutely at some time in the future through a testamentary disposition by Mr. Payne.
The judgment is reversed, and the cause is remanded with instructions to modify the judgment to conform with the views expressed in this opinion. Neither party shall be allowed costs in this court.
HAMLEY, C.J., and OTT, J., concur.
SCHWELLENBACH and DONWORTH, JJ., concur in the result.
November 16, 1955. Petition for rehearing denied.
NOTES
[1] Reported in 288 P. (2d) 242. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346217/ | 169 Ga. App. 80 (1983)
311 S.E.2d 243
WALLS
v.
THE STATE.
66319.
Court of Appeals of Georgia.
Decided November 29, 1983.
Franklin H. Thornton, for appellant.
Arthur E. Mallory III, District Attorney, James M. Garcia, Assistant District Attorney, for appellee.
CARLEY, Judge.
Appellant appeals his conviction of possession of cocaine in violation of the Georgia Controlled Substances Act. The appeal of appellant's co-defendant appears in Stevens v. State, 165 Ga. App. 814 (302 SE2d 724) (1983). The relevant facts of the instant case are set forth fully therein and will not be repeated here.
1. Appellant's first enumeration of error is predicated upon the state's failure to comply with OCGA § 17-7-210 (Code Ann. § 27-1302), which requires that a defendant who requests a copy of his in-custody statement be furnished one "at least 10 days prior to the trial of the case . . ." Appellant was tried on February 22, 1982, and his written request for a copy of his in-custody statement had been filed some seventeen days earlier, on February 5, 1982. Accordingly, it is clear that appellant's request was "timely" in that compliance by the state could have been made "at least 10 days prior to the trial of the case . . ." Compare Law v. State, 251 Ga. 525, (307 SE2d 904) (1983) (construing OCGA § 17-7-211 (Code Ann. § 27-1303)). "If the request is timely made, defendant is then given at least ten days access to the report before trial, in order to prepare. That is, a copy of the report must be furnished by the prosecuting attorney at least ten days prior to trial." Law v. State, supra at 527. On February 15, 1982, defense *81 counsel was shown a copy of appellant's statement but was not provided with a copy. It was not until February 22, 1982, the day of appellant's trial, that a copy was given to defense counsel. On these facts, appellant made a motion in limine to exclude all evidence concerning his in-custody statements from the trial. The motion was denied, and at trial, the state introduced testimony which attributed an inculpatory in-custody statement to appellant. Appellant asserts that the trial court erred in denying his motion in limine and in allowing the testimony concerning his statement into evidence.
The grounds upon which the trial court denied appellant's motion in limine were that his statement had been "available" since November 4, 1981, the day of appellant's preliminary hearing, and that it was incumbent upon defense counsel to avail himself of the "open file" policy of the prosecution and secure his own copy of appellant's in-custody statement. However, at the time of the preliminary hearing, appellant had not been represented by the same counsel who was defending him at trial and who filed the request on February 5, 1982, for a copy of appellant's in-custody statements. There is nothing in the record to indicate that before February 5, 1982, appellant or counsel who had represented him at the preliminary hearing had requested or been provided written copies of appellant's in-custody statement. Compare McCannon v. State, 161 Ga. App. 685 (2) (288 SE2d 663) (1982); Chester v. State, 164 Ga. App. 697 (296 SE2d 237) (1982). The applicability of OCGA § 17-7-210 (Code Ann. § 27-1302) is triggered by a defendant's written request for a copy of his in-custody statement. The first such request in the instant case was timely made on February 5, 1982, by counsel who was representing appellant in the upcoming trial. Thereafter, the burden shifted to the state to comply with the requirements of OCGA § 17-7-210 (Code Ann. § 27-1302). Garner v. State, 159 Ga. App. 244, 245 (282 SE2d 909) (1981). That burden required the state to furnish appellant with a written copy of his in-custody statement at least 10 days before trial. Garner v. State, supra. That burden was not met in the instant case. "The General Assembly has seen fit to provide certain discovery rights to criminal defendants, and it is the duty of this court to give full force and effect to all provisions of that statute. [Cits.]" Tanner v. State, 160 Ga. App. 266, 268 (287 SE2d 268) (1981). "[I]t is always error to fail to give [a defendant] on proper demand a written summary of all relevant and material statements made by him while in custody." Reed v. State, 163 Ga. App. 364, 365 (295 SE2d 108) (1982).
The state asserts that there was substantial compliance with appellant's motion. See Tyson v. State, 165 Ga. App. 22 (299 SE2d 69) (1983). Unlike Tyson, however, there is no showing that appellant or *82 his counsel had ever been provided some form of a written copy of his in-custody statement. "The statute is quite clear as to what the state is required to furnish in writing and that the material cannot be used against the defendant if the state has not furnished it." (Emphasis supplied.) McCarty v. State, 161 Ga. App. 444, 445 (288 SE2d 249) (1982), aff'd 249 Ga. 618 (292 SE2d 700) (1982). This court has already rejected the argument that the oral communication of scientific test results evinced by a writing "substantially" complies with the requirements of OCGA § 17-7-211 (Code Ann. § 27-1303). Luck v. State, 163 Ga. App. 657 (295 SE2d 584) (1982). We know of no reason why this court should sanction a different analysis with regard to OCGA § 17-7-210 (Code Ann. § 27-1302).
Moreover, the trial court's ruling that the burden was on defense counsel to obtain a copy of appellant's statements from the prosecution's "open files" is likewise erroneous. As noted above, the statute requires that the state furnish a written copy of a defendant's in-custody statement upon request. McCarty v. State, supra. See also State v. Madigan, 249 Ga. 571, 573 (292 SE2d 406) (1982), overruled on other grounds, Law v. State, supra. "Upon proper application by a defendant, the burden of compliance with the requirements of [OCGA § 17-7-210 (Code Ann. § 27-1302)] is on the state." Garner v. State, supra at 245. Luck v. State, supra, clearly supports the proposition that when the discovery statute is invoked pursuant to a defendant's timely motion, it is incumbent upon the state to furnish defendant with a written copy of his in-custody statement in a timely fashion without regard to defense counsel's knowledge of the existence and content of his client's in-custody statement and his lack of effort to secure a copy thereof. "[U]nder the code section it was up to the district attorney to furnish the report to [appellant] within 10 days and . . ., not having done so, the state was precluded from using testimony founded on the report." Luck v. State, supra at 658.
The evidence in the instant case establishes that, although appellant had made a timely motion, the state did not comply with the requirements of OCGA § 17-7-210 (Code Ann. § 27-1302). "Therefore, the judgment of the trial court is reversed and remanded with direction that testimony [concerning appellant's in-custody statement] be excluded and suppressed from any retrial of this case unless and until the district attorney has fully complied with the provisions of [OCGA § 17-7-210 (Code Ann. § 27-1302)]." Tanner v. State, supra at 268-269.
2. Appellant also asserts that the state's failure to comply with OCGA § 17-7-211 (Code Ann. § 27-1303), relating to the discovery of scientific tests, rendered the admission at trial of evidence concerning those tests erroneous. Our review of the record demonstrates *83 that the evidence complained of consisted of crime lab reports of blood and urine samples obtained from appellant's co-defendant. This evidence was introduced against the co-defendant, not appellant. OCGA § 17-7-211 (a) (Code Ann. § 27-1303) entitles a criminal defendant to "a complete copy of any written scientific reports in the possession of the prosecution which will be introduced . . . against the defendant by the prosecution . .." (Emphasis supplied.) "Not every described report is discoverable, but only those (1) in the possession of or available to the prosecution (2) which will be introduced against the defendant." (Emphasis supplied.) Law v. State, supra at 527. No such evidence encompassed by the statute was introduced against appellant. There was no error in this regard.
Judgment reversed. Deen, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346197/ | 136 Cal. App. 2d 543 (1955)
PATRICIA K. OLSON et al., Appellants,
v.
BASIN OIL COMPANY OF CALIFORNIA (a Corporation) et al., Respondents.
Civ. Nos. 20919, 20933.
California Court of Appeals.
Oct. 26, 1955.
Richard Richards; Richards, Watson, Smith & Van Petten, and Kenny & Morris for Appellants.
Thomas A. Wood, Larwill & Wolfe, Chandler, Wright, Tyler & Ward and Hartke & Brant for Respondents.
FOX, J.
This is a stockholders' derivative suit against Basin Oil Company of California, hereinafter referred to as Basin, and C. G. Willis, its president. Defendants filed separate motions to require plaintiffs to furnish security to *545 cover reasonable expenses, including attorney's fees, that are likely to be incurred in connection with the action. These motions were pursuant to the provisions of the Corporations Code, section 834. After a hearing, based on voluminous affidavits, the trial court found "that there is no reasonable probability that the prosecution of the cause of action alleged in the complaint against the moving parties ... will benefit the defendant Basin Oil Company or its security holders." The court thereupon ordered plaintiffs to deposit security for such probable reasonable expenses within 30 days. Plaintiffs failed to deposit the required security. The action was thereupon dismissed. Plaintiffs' main appeal (No. 20919) is from the judgment of dismissal. (Plaintiffs also appeal--No. 20933--from certain orders made after the judgment of dismissal. The issues on this appeal will be discussed later.)
Statement of Case
Plaintiffs seek to impress a trust in favor of Basin on the interest of Willis in certain oil leases in the East Los Angeles area, and demand an accounting of the moneys received by him in his operations therefrom. Their theory is that Willis individually seized a corporate opportunity which rightfully belonged to Basin.
Questions
There are two basic questions on the main appeal: (1) did the trial court, on the record, abuse its discretion in determining that there was no reasonable probability that the prosecution of this action would benefit Basin or its security holders; and (2) was the amount of security required to be posted unreasonable?
Background
Defendant Willis is a trained and experienced geologist and petroleum engineer, having had postgraduate work in those fields. From 1921 to 1928 he was employed as a geologist by various major oil companies, spending considerable time working on the geology and the oil potential of the Los Angeles area, and, among other things, prepared a complete geological report of the area covered by the leases which are involved in this action. During this period he had an opportunity to review the reports of numerous geologists working for these companies and thus gained a great amount of geological information as to the oil production areas in the Los Angeles basin as well as elsewhere. *546
In 1928 he started out on his own, doing independent geological research in the Los Angeles territory and soon became an independent oil operator. As such, he leased certain land in the vicinity of Signal Hill and organized the Hildon Oil Company, of which he was president, for the development thereof, with the understanding, however, that he would have the right to retain his status as an individual oil operator and to continue his search for other oil fields on an individual, independent basis.
Organization of Basin
In 1938, Willis reviewed the geological work he had directed some years before in the Manchester Avenue area in East Inglewood. He concluded that oil could be developed there and, individually, took leases in that area. For the purpose of developing these leases, Willis organized Basin. He assigned these leases to Basin, reserving, however, certain overriding royalties. He purchased 3,000 shares of Basin's stock for cash and became a director and president of the corporation. Oil was discovered in paying quantities on these leases.
During the first six months Willis received no salary for his services as president of Basin. Effective, however, on January 1, 1939, the board of directors voted Willis a salary of $500 a month. The minutes of that board meeting disclose that Willis stated "that while he would devote the necessary attention to Basin's affairs, he still wanted to retain his status as an independent operator, especially since he [had] other oil interests such as Hildon Oil Company and Desert Oil Company." He advised the board that his business had always been that of a petroleum engineer and oil operator and that it was his intention to continue in this business independently, and that he expected to procure other properties for oil development purposes and desired to feel free to deal with and develop the same as he might see fit.
When the development of the Manchester Avenue area was completed, Willis' salary was reduced to $200 a month. Later, however, it was restored to $500 and has been kept at that figure since 1945. The minutes of the meeting at which this increase was voted show that it was "with the understanding that he was still to have the right to continue his status as an independent operator."
Authorization of Contract of February 13, 1945
Prior to September 13, 1944, Willis had acquired, at his individual expense, certain oil leases in the industrial section *547 of Inglewood. At a meeting of the board on October 5th Willis advised the members that he had personally acquired these leases in the Inglewood area; that the company had spent no money in connection therewith, and had no interest therein. He indicated, however, his willingness to make a deal with Basin for financing the development of these leases. As a consequence, a deal was made by which Willis agreed to assign the leases to Basin with the understanding, however, that he would maintain his status as an independent oil operator and that an agreement would be drawn which would recognize his status as such and would not limit his activities outside the Inglewood area. To effectuate this purpose, Basin employed John C. MacFarland, of the law firm of Gibson, Dunn and Crutcher, as special counsel, to prepare the necessary corporate resolution and agreement between it and Willis. Such resolution was offered at the board's meeting on October 11, 1944, by Director Asa Call, and unanimously adopted, Willis, however, not voting. This resolution contained, inter alia, the following recitals:
"Whereas, Cornelius G. Willis, the president of this corporation has, in his individual capacity as a petroleum engineer and oil operator, investigated certain territory in the industrial section of the City of Inglewood ... and, in such individual capacity as an independent petroleum engineer and oil operator, has acquired certain leases and is in the process of acquiring other leases covering said area."
"* * *"
"Whereas, all of the directors of this corporation are cognizant of the financial interests of Mr. Willis in his individual capacity in said transaction and the directors have come to the conclusion that said proposal of Mr. Willis is fair and that the proposed contract or transaction is just and reasonable as to this corporation; and"
"Whereas, the directors of this corporation and Mr. Willis desire to agree upon an area in the general neighborhood of the territory in which it now operates and the territory in which it will operate under the leases so to be assigned by Mr. Willis to it, in which area Mr. Willis will not carry on any operations, transactions or negotiations whatsoever except for the benefit of, and on behalf of, this corporation, and to agree that in all territory outside of said area Mr. Willis shall be permitted to carry on operations, transactions and negotiations in his individual capacity as a petroleum engineer and oil operator, without obligation to account to this corporation *548 for any such operations, transactions or negotiations; ..."
It was then resolved that "said agreement contain a paragraph or clause satisfactory to said officers in which Mr. Willis will agree that in the area described ... he will not carry on any operations, acquire any leases, make any geological explorations, or otherwise deal in or with said properties or with the owners thereof, except for the benefit of and on behalf of this corporation, but that in all other territory, outside of the above described property ... Mr. Willis shall be free to operate in his individual capacity as a petroleum engineer and as an oil operator without any obligation to account to this corporation for any advantage, benefit or profit, financial or otherwise, which he may obtain as the result of his operations therein."
At the time this contract was authorized, Basin had 270,000 shares outstanding. Five of its six directors were present and they, together with their immediate families, owned 194,895 shares of Basin's stock. Pursuant to the foregoing resolution, an agreement was prepared by Mr. MacFarland which was executed by both Willis and Basin under date of February 13, 1945. Paragraph 10 of that agreement reads as follows:
"10. Willis agrees that in the area described as Section 28, except the southwest quarter thereof, Section 29, the south half of Section 21, and the south half of Section 22, all in Township 2 South, Range 14 West, S.B.B.&M., he will not carry on any operations, acquire any leases, make any geological explorations, or otherwise deal in or with said properties or with the owners thereof, except for the benefit of and on behalf of Basin. Basin agrees that in all other territory outside of the above described area and of the property covered by the leases described in Exhibit 'A' and assigned by Willis to Basin and of the property covered by leases which this corporation is now operating, Willis shall be free to operate in his individual capacity as a petroleum engineer and as an oil operator and not as an officer or director of Basin, without any obligation to account to Basin for any advantage, benefit or profit, financial or otherwise, which he may obtain as a result of his operations in said territory."
Pursuant to the provisions of that agreement, the Inglewood leases were then assigned by Willis to Basin, reserving, however, certain overriding royalties to Willis individually. A well was drilled on the properties covered by these leases and oil was discovered. Thereafter, additional wells were *549 drilled with the result that in excess of five million dollars has been realized by Basin after payment of royalties from this discovery.
Independent Operations of Willis
During the time of Basin's existence, and while he was president and a director thereof, Willis engaged in various outside activities as an independent operator. Basin actually participated in some of these operations but did not participate in others. One of Willis' independent ventures was in the Lost Hills area of Kern County. He formed a corporation, of which he was president, for the purpose of drilling in that territory. Basin, as well as most of its stockholders, was interested as a stockholder in this corporation. The venture, however, did not prove successful.
In 1939 or 1940 Willis organized a corporation known as California Exploration Company for the purpose of drilling a test well in the Buttonwillow area of Kern County. Basin was not offered an opportunity to participate in this venture, which also proved unsuccessful.
In 1940, Willis formed a limited partnership, of which he was the general partner, for the purpose of taking over a one-half interest in a lease which he had acquired in the Newhall area. This limited partnership was called the Valley Company, and Hildon Oil Company participated in it as a limited partner. A well was drilled on this lease which produced oil in paying quantities. Subsequently, the Valley Company transferred its interests in this lease to General Exploration Company of California, hereinafter referred to as General Exploration. Later, Willis sold the one-half interest which he had retained in this lease to another oil company. The property is now being operated by General Exploration for its account and that of the other company.
In 1944 Willis acquired a lease on the O. T. Johnson property at Imperial Boulevard and Western Avenue, in Los Angeles. On January 3, 1945, Willis offered Basin an interest in this lease subject to an operating agreement with General Exploration. This offer was accepted by a resolution which was unanimously carried, Willis and Director Campbell, however, not voting since they each had an interest in the property and in General Exploration. These disclosures were recorded in Basin's minutes of that date. A well drilled on this property did not prove to be productive.
Also in 1944, Willis secured leases in the East Los Angeles *550 area not far from the leases which are involved in this action. He organized a limited partnership known as Rio Hondo Company; he was general partner and others were limited partners. Three nonproductive wells were drilled in this territory. Basin did not participate in this venture but knew of the operations and leased lands in its own name in the general area with the hope that the exploration by Willis and his partners would be productive and would prove up the Basin leases.
In 1948 Willis secured leases in the Yorba Linda area. Interests therein were assigned by him to Basin, General Exploration, and to another company. Willis, however, retained a personal interest in these leases. A well was drilled which turned out to be a dry hole.
In 1950 Willis secured a lease of some 720 acres in the Newhall district. He sublet a portion to General Exploration, retaining an overriding royalty. A test well proved unproductive. In January, 1953, he obtained additional acreage adjoining the 720 acres above mentioned and organized a group to drill this acreage in exchange for a one-half interest in both properties. This group included Basin, and Willis individually. A test well failed to produce oil.
The East Los Angeles Area Leases
In February, 1953, Rouse Simmons, president of Bolsa Chica Oil Corporation, learned that a broker representing Bankline Oil Company and others was offering a one-half interest in certain, as yet unproductive, oil leases in the East Los Angeles area for a commitment to deepen a test well on these leases to a depth of 8,000 feet. Simmons knew of Willis' specialized knowledge of the general area resulting from his previous extensive operations in that vicinity, and referred the broker to Willis. In a telephone conversation with Willis, Simmons advised him that if, in his opinion, "the play looked attractive and could be acquired, he would wish to take a part of it for his company," Bolsa Chica Oil Corporation. The broker called on Willis and submitted the matter to him. It appeared that the cost of deepening the well would be between $30,000 and $60,000 and that it was necessary to act promptly or the deal might be lost. Willis thereupon personally accepted the one half interest in the leases and in exchange therefor personally assumed the obligation of deepening the well, known as Fluor No. 1. Thereafter Bolsa Chica Oil Corporation assumed 25 per cent of the Willis commitment for a like interest, Christopher Oil *551 Company assumed 20 per cent, and General Exploration assumed 15 per cent, leaving 40 per cent for Willis. It was agreed that General Exploration would be the operator for the group. By the end of February preliminary documents were completed between General Exploration and Bankline.
At a regular meeting of the board of directors of Basin on March 4, 1953, at which four of its five directors were present (Director Howard W. Wright being absent), a 20 per cent interest in the venture was offered Basin by Willis in consideration of Basin's assuming 20 per cent of the costs of deepening the well. A resolution to accept this offer resulted in a tie vote. A resolution was then offered that Basin accept, if it could be obtained, a 40 per cent participation in this project, or, if a full 40 per cent participation and interest could not be obtained, that Basin should not acquire any interest therein. This resolution also failed of adoption by reason of a tie vote, Willis voting in the negative. Willis thereupon withdrew his offer for Basin's participation.
At that time Willis was not only a stockholder, director and president of Basin but held like relationships in General Exploration. Both companies and Willis maintained their offices in the same suite. Mr. Beament was a director and officer of Basin and also a vice president of General Exploration and was on the payroll of both companies. Mr. Wright was a director of both Basin and General Exploration and counsel for both companies and Willis. Mr. Quinn and Mr. Purcell were the other directors of Basin, and neither of them appears to have been identified in any other official capacity with Basin nor with any of the other companies.
At a special meeting of the board on March 19th a resolution was adopted to retain the law firm of Gibson, Dunn and Crutcher as special counsel to advise Basin with respect to its rights in connection with the East Los Angeles leases. In the meantime the deepening of Fluor No. 1 well proceeded under the arrangement hereinabove recited, Willis having a 40 per cent interest therein. The well turned out to be a dry hole and was abandoned.
At a board meeting of Basin's directors on May 6, 1953, William L. Murphey replaced Wright as a director. At that meeting Willis advised the board that he felt there was a possibility of oil in the East Los Angeles area. He stated that further development operations were being considered, and there was a possibility he would again offer Basin participation in the operation. A committee, consisting of Directors Purcell, *552 Murphey and Beament, was appointed to obtain independent advice as to the geology, land values, and the oil potential of the area so that recommendations could be made to the board in the event any offer of participation in the development of these leases was again presented to the board for its consideration.
At a meeting on July 1, 1953, the opinion of Gibson, Dunn and Crutcher, dated June 12th, was presented to the board, in which doubt was expressed as to the right of Willis to acquire for his personal account any interest in the leases here in question. The basis for their doubt was that, apart from the contract of February 13, 1945, the acquisition of such interest was a corporate opportunity which belonged either to Basin or, perhaps, both to Basin and General Exploration. The opinion noted: (1) Willis' conflicting positions; (2) the interlocking directorate between Basin and General Exploration; and (3) absence of an independent majority of the board of directors of Basin. Counsel advised that lacking an independent majority of the board, or independent oil advice, they were unable to conclude that the contract of February 13, 1945, would permit Willis to accept business opportunities at will without regard to the position of Basin.
At the same meeting of the board, there was presented an opinion from the law firm of Hartke & Brant, dated June 30th, which advised that the contract of February 13, 1945, was valid and binding upon the parties thereto; that the Fluor well proposition was not a business opportunity seized by Willis or diverted from Basin but was a proposition referred to him as a result of his previous operations in and familiarity with the East Los Angeles area, and that he was under no obligation to account to Basin with respect to any interest he had acquired in that field. At this same meeting of the board, Willis advised that plans were under consideration for the drilling of another well on the East Los Angeles leases and if Basin wished to participate therein he recommended that it make its decision at once and he would endeavor to obtain at cost such interest as Basin desired.
At a special meeting of Basin's board on July 21, 1953, Director Murphey, as chairman of the committee previously appointed for the purpose of obtaining advice as to the geology and possibility of oil in the East Los Angeles area, presented the following report: "That a geological report on a portion of the East Los Angeles area had been submitted by Roy C. *553 Mead, Petroleum Engineer and Geologist under date of July 14, 1953, and said report indicated Mr. Mead's opinion that there was no closure to the north of this area, and included his recommendation that the company not participate in any development in the area." The committee then recommended to the board that Basin not participate in any development in the area, which is the same area covered by the leases involved in this action. Willis, however, stated, as shown by the minutes of the meeting, that he did not agree with the conclusions reached in Mead's report and that he and his associates would, in all probability, proceed wtih the drilling of another well on this property. Thereafter the following resolution, proposed by Director Murphey and seconded by Director Purcell, was adopted by the vote of four of Basin's five directors, Willis abstaining from voting:
"Resolved that this corporation not acquire any interest in the block of leases in the East Los Angeles area hereinbefore referred to as the East Los Angeles Area Leases, and that it not participate to any extent whatsoever in the drilling of a well thereon." Thereafter Willis and his associates determined that a new test well should be drilled and a new lease arrangement was effected on this East Los Angeles area. The well was to be drilled by General Exploration, as operator, for a group with the following interests in the leases:
Tabular Material Omitted
On August 24th, Willis reported the foregoing to the board of directors of Basin and stated that the cost of deepening the previous well (Fluor No. 1), which had been abandoned, was approximately $51,000 and that it was estimated the cost of the new well would be less than $75,000. Willis also stated that he had given considerable study to the Mead report and had substantial differences of opinion with respect thereto, all of which had been discussed in detail with Mr. Mead.
Willis thereupon offered Basin a 10 per cent working interest on the basis that Basin assume approximately $5,100 of the cost of deepening Fluor No. 1 well and assume 10 per cent of the cost of drilling a new well estimated not to exceed $7,500, thus making a total proposed commitment on the part of Basin of a little more than $12,000. Willis reported that all arrangements for financing the new well had been completed, *554 that the development would go ahead in any event, and that he had confidence in the area and hoped Basin would participate. There was considerable discussion of the proposition by the board, including consideration of a supplemental report by Mead dated August 24, 1953, in which he recommended participation by Basin to the extent of 10 per cent, at a total cost not to exceed $12,500. A resolution was thereupon adopted providing for Basin's acceptance of a 10 per cent interest on the proposed basis. The resolution was adopted by the affirmative vote of three directors, Willis abstaining and Director Purcell voting in the negative.
Thereafter a well was drilled on these leases, successfully completed and placed on production about September 26, 1953. It has continued to produce oil and gas in paying quantities.
At the annual stockholders' meeting on October 14, 1953, the number of directors was increased from five to seven. Directors Willis, Beament, Murphey, Purcell and Schmid (who had been elected during the summer to fill the vacancy created by Director Quinn's resignation) were reelected. Ross McCollum and Charles H. Quinn (who earlier had been replaced by Schmid) were also elected directors.
On December 8, 1953, a letter was addressed to Basin by Robert W. Kenny, as attorney for plaintiffs in this suit, requesting Basin to institute an action on its own behalf against Willis, and enclosing a copy of the complaint herein.
Thereafter, the board of directors employed Thomas A. Wood and Larwill and Wolfe, attorneys, to investigate the facts and law applicable to the proposed complaint. Such an investigation was made and a written opinion by said attorneys was submitted to Basin under date of December 29, 1953. Counsel took the view that the agreement of February, 1945, was valid and binding on both parties, that the parties performed under it and accepted its benefits for many years, that there had been no impropriety on Willis' part in his dealings with Basin, and that Basin not only had no right of action against Willis, but that an attempt on its part to disaffirm the contract might result in a termination of its rights in the Inglewood leases and their reacquisition by Willis. [fn. *] It *555 was suggested, however, that it was possible for Basin to file an action for declaratory relief to determine Willis' right under the contract to act as an independent oil operator while serving as a director and officer of Basin. In accordance with the advice contained in said opinion, the board of directors, on January 6, 1954, adopted a resolution stating that the institution of the action proposed by plaintiffs against Willis "is not for the best interests of this corporation" and resolving that the corporation decline to institute the requested action against him.
Plaintiffs thereupon filed the complaint herein on January 11th.
On February 3d the directors adopted a resolution, Willis abstaining, directing the attorneys for Basin, generally, to maintain neutrality between the plaintiffs in this action and Basin.
Limitations of Decision
[1] In a proceeding under section 834, Corporations Code, "A determination as to the furnishing of security is not a determination of the merits of any issue in the action." (Beyerbach v. Juno Oil Co., 42 Cal. 2d 11, 16 [265 P.2d 1].) Also, "It is for the trial court to weigh the evidence and its finding, based upon substantial conflicting evidence, is in this as in every civil case binding upon the appellate court." (Wood v. Gordon, 112 Cal. App. 2d 374, 376 [246 P.2d 84]; Beyerbach v. Juno Oil Co., supra, p. 24.) It therefore follows that our inquiry must be directed to whether there is substantial evidentiary support for the court's determination that there is no reasonable probability that the prosecution of this suit will benefit Basin or its security holders.
No Abuse of Discretion in Requiring Security
[2a] An examination of the evidence recited herein discloses that there are five significant facts with their respective *556 attendant circumstances that furnish strong and substantial support of the court's ruling. The first of these is the contract of February 13, 1945, between Basin and Willis, and particularly paragraph ten thereof. The provisions of this contract are clear and specific. It expressly provides that outside of the Inglewood area "Willis shall be free to operate in his individual capacity as a petroleum engineer and an oil operator and not as an officer or director of Basin, without any obligation to account to Basin for any advantage, benefit or profit, financial or otherwise, which he may obtain as a result of his operations in said territory." (Emphasis added.) The resolution authorizing the execution of this contract was offered by Director Asa Call and unanimously adopted by the board, Willis not voting. There is no suggestion that the members of this board were not independent and completely free to exercise, individually and collectively, their best business judgments. The directors who approved this contract then owned 194,895 of the 270,000 shares of Basin's issued and outstanding capital stock.
This contract was supported by a valuable consideration for it resulted in Willis' assigning to Basin oil leases in the Inglewood area from which Basin has realized between $5,000,000 and $6,000,000.
When this contract was authorized the board was well aware of the fact that Willis had other oil interests and had been operating on his own account. He advised the board, as disclosed by the minutes in January, 1939, when he was placed on salary as president of Basin, of his other oil interests and that he expected to retain his status as an independent oil operator. It was then made clear that he would not devote his full time and energies to Basin and that fact was undoubtedly taken into account in fixing his salary at a modest figure. Furthermore, the contract here in question grew out of Willis' independent activities in obtaining for his personal account leases in the Inglewood area which he assigned to Basin subject to an overriding royalty. In fact, Basin was organized to develop leases that Willis had procured as an independent operator. This fact was undoubtedly known to the board.
Of considerable significance is the conduct of the parties after the authorization and execution of the contract. This serves to give a practical construction to the contract by the parties themselves. For a period of more than eight years both Willis and Basin acted in strict conformance with its provisions. Willis continued to carry on his independent operations *557 and to enter into new ventures from time to time, as the contract permitted, outside of the Inglewood area. Basin joined with him in some of these ventures, e. g., in the Yorba Linda and Newhall districts and in the lease on the O. T. Johnson property in Los Angeles.
Plaintiffs suggest this contract is void as against public policy. Such a result does not appear to be likely or probable in view of the circumstances under which it was authorized and executed. (See Industrial Indem. Co. v. Golden State Co., 117 Cal. App. 2d 519 [256 P.2d 677]; Lowe v. Copeland, 125 Cal. App. 315 [13 P.2d 522]; Anderson v. Dunnegan, 217 Iowa 672 [250 N.W. 115]; Corp. Code, 820.)
The second significant fact is the way in which these leases in the East Los Angeles area and the opportunity to acquire an interest therein came to Willis' attention. The circumstances under which this deal came to Willis justify an inference that it came to him personally rather than to Basin. When Rouse Simmons, president of Bolsa Chica, learned that there was a potential deal in this as yet unproductive area he referred the broker to Willis. Simmons was aware of Willis' knowledge of the area resulting from his earlier geological studies thereof and his later personal operations therein. In a telephone conversation with Willis, Simmons indicated that if Willis considered the prospects favorable he wanted a portion of the deal for his company. It is therefore reasonable to infer that Simmons was seeking the personal and professional opinion of Willis--and not that of Basin--as to the oil potential in this territory because of the former's special knowledge thereof. On that opinion he was willing to commit, and later did commit, his company to participation in the development of these leases. In these circumstances and in view of the provisions of the contract of February, 1945, the conclusion is justified that this was a Willis and not a Basin opportunity.
The plaintiffs, too, appear to have recognized the logic of what transpired for they allege in their complaint (possibly inadvertently) that the opportunity to acquire an interest in the East Los Angeles leases was "offered to defendant Willis;" that he accepted the offer, and "assumed the financial responsibility for the cost of deepening" Fluor No. 1 well.
In view of the provisions of the contract of February, 1945, and the practical construction that had been placed on it by the conduct of the parties since then, Willis naturally felt free to accept this proposition which he did immediately. Then, *558 as he had done on certain previous occasions, Willis offered a portion of the deal to Basin--the amount he felt the company could afford to risk in testing an unproven area.
The third significant fact is that after receiving independent professional geological advice on the area, the board voted that Basin "not acquire any interest" in the East Los Angeles area leases and that it "not participate to any extent whatsoever in the drilling of a well thereon." It will be recalled that after Fluor No. 1 turned out to be a dry hole, Willis advised Basin's board that plans were under consideration for drilling another well and that there was a possibility he would again offer Basin an opportunity to participate in the venture. He thereupon appointed a committee, consisting of Directors Murphey, Beament and Purcell, to obtain independent geological advice on the area so that the committee would be in a position to make recommendations to the board in the event Basin was later offered participation. They employed Mr. Mead. He reported there was no closure on the north and recommended that Basin "not participate in any development in this area." Although Willis stated he did not agree with Mead's report, the board voted unanimously, Willis abstaining, in accordance with the Mead recommendation. Since by this unanimous board action Basin had eliminated itself from any participation in this venture, it would seem reasonable to conclude that Willis was free to take personally whatever interest he cared to in the further exploration for oil on these leases.
The fourth significant fact is that Basin participated in the venture to the extent recommended by its independent expert. Although Mead had made an unfavorable report on the area and Basin's board had resolved against acquiring any interest in the leases or participating in drilling another well, Willis and his associates decided to make another test. Although the financing therefor had been fully provided, Willis offered Basin a 10 per cent interest in the project. Mead, in the meantime, filed a supplemental report recommending that Basin take a 10 per cent interest in the venture at a cost not to exceed $12,500. The board decided to follow this recommendation and voted to take a 10 per cent interest in the deal. In view of the speculative character of the venture, and the presumption in favor of the good faith of the directors, it is a reasonable inference that the decision of the board to follow Mead's later recommendation of a 10 per cent participation was the exercise of sound business judgment on the *559 part of the board, and represented the maximum risk they thought Basin should take under the circumstances.
The fifth significant fact relates to the rejection of plaintiffs' demand that suit be brought against Willis by Basin. Upon receipt of this demand the board, which had been increased to seven members, sought legal advice. Thomas A. Wood and Larwill and Wolfe were employed to prepare an opinion for the board's consideration. After reviewing the entire picture, the attorneys advised that in their opinion Willis had a legal right to acquire a personal interest in the East Los Angeles leases and personally to participate in the development thereof, and that he was not accountable to Basin for any profits made from this venture. They advised that there were insufficient grounds upon which to base an action against Willis. The board, on January 6, 1954, passed a resolution not to institute a suit against him. The board was, of course, familiar with the contract of February, 1945, and the practical interpretation that had been placed upon it by the conduct of both parties, the rejection of any participation in this venture in July, and their later decision to take a 10 per cent interest therein. It is a reasonable inference that the board had a comprehensive picture of the many facets of this matter since it had frequently been before the board over a period of months. [3] Furthermore, "Every presumption is in favor of the good faith of the directors." (Fornaseri v. Cosmosart Realty etc. Corp., 96 Cal. App. 549, 557 [274 P. 597].)
[2b] These facts and the other circumstances disclosed by the record reasonably justify an inference that in deciding not to institute an action against Willis the board acted in good faith and exercised its best business judgment in the interest of Basin. Such a finding would be fatal to plaintiffs' case. (Findley v. Garrett, 109 Cal. App. 2d 166, 174, 178 [240 P.2d 421].) Plaintiffs, however, argue that the last cited case is not here applicable because in the instant matter Basin's directors, on February 3, 1954, passed a so-called "neutrality resolution." This resolution, however, did no more than declare it to be Basin's policy to be neutral "to the greatest extent consistent with the appearance of this corporation in said action and the prevention of detriment to this corporation as a result of said action." Such a resolution cannot, however, obviate the wholesome rule of the Garrett case that minority stockholders may not wrest control of the management of a corporation where its board has acted *560 in good faith and used its best business judgment in behalf of the corporation.
Plaintiffs place great emphasis on the opinion of Gibson, Dunn and Crutcher, dated June 12, 1953. That opinion is, however, subject to two limitations: (1) it is apparent from reading the opinion that the author was not supplied with full information (a) leading up to and concerning the organization of Basin, (b) relative to the practices preceding and the circumstances surrounding the authorization and execution of the contract of February 13, 1945, and (c) as to the practical construction the parties had placed on it over a period of years by their conduct; and (2) it naturally could cover only events up to June 12th. Significant actions were thereafter taken by the board which had to be taken into consideration in January, 1954, in deciding whether to authorize suit against Willis and by the court in passing on the motions for security.
As previously noted, we are not called upon to decide, and we do not decide, any of the issues in this action. Rather, it is our responsibility to ascertain whether there is substantial support for the trial court's determination that there is no reasonable probability that the prosecution of this suit will benefit Basin or its security holders. From what has been said, it is apparent that plaintiffs have a number of very difficult hurdles to surmount before they could possibly prevail. Their chances of success appear to be slight. There is substantial support for the trial court's decision.
Basin Entitled to Security Notwithstanding Neutrality Resolution
The court found the probable reasonable expenses and attorney's fees of the moving parties to be as follows: Basin $15,000 and Willis $50,000. This latter amount was also for the benefit of Basin, insofar as it might become liable to Willis for expenses pursuant to section 830 of the Corporations Code. It therefore ordered plaintiffs to deposit security in these amounts. Plaintiffs contend: (1) no bond should have been imposed in favor of Basin since it had assumed a neutral position; and (2) there was no factual justification for the imposition of a $50,000 bond in favor of Willis. Neither of these contentions is tenable.
As a defendant in this action, Basin is entitled to have and should have counsel at all stages of the proceedings. To fail to do so would be imprudent. [4] The board obviously contemplated representation of Basin, for the so-called *561 neutrality resolution declared it to be Basin's policy to be neutral "to the greatest extent consistent with the appearance of this corporation in said action and the prevention of detriment to this corporation as a result of said action." It is obviously necessary for Basin to employ counsel to protect its interests in accordance with this resolution and as a practical matter. The point is specifically covered in an affidavit filed in this proceeding on behalf of Basin by its vice president, T. H. Beament. He states: "That by reason of this action, it will be necessary for this corporation to appear as defendant in said action. It will have to file pleadings and to participate in every way in said action, and by reason thereof the corporation will incur expenses including those for attorneys' fees. That in addition the corporation may become liable for expenses, including attorneys' fees incurred by the defendant, C. G. Willis, who has been sued in said action, as a director and president of this corporation. That the defendant, Basin Oil Co. of California believes that the reasonable expense which it may incur in this action, including attorneys' fees, and the additional expenses for which said corporation may become liable, pursuant to Sec. 830 may amount to $15,000.00."
The trial court could also take judicial notice of the necessity of Basin's being represented by counsel and the expense incident thereto.
There Is Adequate Support for Amount of Security on Behalf of Willis
[5] Contrary to plaintiffs' argument, there is substantial factual support for the amount of security the court ordered on behalf of Willis. C. H. Hartke, one of the attorneys for Willis, filed an affidavit in which he outlined the legal and accounting services that would be required in behalf of his client. He expressed the opinion that the "reasonable expense" that it would be necessary for Willis to incur would be "at least $50,000.00." Our resume of the record herein demonstrates that this action presents a factual picture where the proof covers a considerable period of time. Many witnesses would have to be interviewed; depositions would have to be taken. A great amount of accounting work would likely be necessary. Preparation on both the facts and the law ought to be thorough. Briefs might be required. An appeal could be anticipated. The suit, potentially, involves a large amount of money. From the record before the trial judge *562 he could see the issues, both factual and legal; the extent and character of preparation that would be necessary; the probable duration of the trial, and the likelihood of appeal. He was at liberty to apply his own professional experience in estimating the probable reasonable expenses, including attorneys' fees, which Willis was likely to incur. There was also an affidavit before the court by Charles W. Wolfe, one of the attorneys for Basin, in which he expressed the opinion that the "reasonable expenses" that may be incurred in the defense of this action by both Basin and Willis is $65,000. It is true the total security required in the case is quite a considerable sum. It is not, however, an unprecedented amount for in Melancon v. Superior Court, 42 Cal. 2d 698, 701 [268 P.2d 1050], plaintiff was required to furnish a total of $65,500 as security in a derivative stockholders' suit. Taking into consideration intricacies and ramifications of the action, we cannot say that the trial court abused its discretion in requiring plaintiffs to post $50,000 security to protect Willis in his reasonable expenses in this litigation.
[6] There is no merit in plaintiffs' argument that the trial court abused its discretion in providing that the Willis security should also be for the benefit of Basin for the purpose of indemnifying it under section 830 of the Corporations Code. Section 834 literally provides for just this form of indemnification when it states that the security shall cover expenses and attorneys' fees "including expenses for which said corporation may become liable pursuant to section 830."
Appeal in Case No. 20933 We turn now to a consideration of plaintiffs' appeal from two orders made on November 9, 1954, following the judgment dismissing their derivative action. By way of prelude, certain additional facts need be recited. As has been stated, plaintiff stockholders filed their complaint on January 11, 1954, for the purpose of impressing a trust on Willis' interest in certain oil leases by virtue of the acts and transactions previously described and for an accounting. On January 22, 1954, defendant Basin filed its answer and in conjunction therewith also filed a cross-complaint against plaintiffs and Willis for declaratory relief. In its answer, by way of a "First Defense" to plaintiffs' action (three other affirmative defenses are urged), Basin alleges the existence of the contract of February 13, 1945, between Willis and the corporation defining the reciprocal and correlative rights and obligations of the parties, and sets *563 forth its terms in haec verba by way of an exhibit; alleges that the contract entitled Willis to engage in independent oil operations without obligation to Basin outside the Inglewood area and that the contract provided that Willis had the right to terminate the contract and obtain a reassignment of the Inglewood leases in the event of Basin's failure to discharge its obligations thereunder; alleges the execution of this contract was duly authorized by a resolution of its board of directors; and further alleges that subsequent to the execution of this contract, a resolution was duly adopted at a meeting of the Basin stockholders on September 5, 1945, approving and confirming all acts of Basin officers and directors from the time of the last annual meeting to date. It is admitted that plaintiffs served upon the directors a draft of the within complaint and with the request that Basin initiate an action against Willis; but it is alleged that having caused an investigation to be made, the directors declined to proceed against Willis and adopted a resolution embodying their belief that the institution of the proposed action would not be for the best interests of Basin.
In its cross-complaint for declaratory relief, Basin realleges the execution of the contract of February 13, 1945, between itself and Willis and the performance of its terms by both parties. It further alleges the existence of a controversy between Willis and plaintiffs into which it has been drawn when plaintiffs delivered to it a draft of their complaint herein, coupled with the notification that if the corporation did not proceed against Willis along the lines therein proposed, said plaintiffs would file said complaint. The cross-complaint then alleges that after investigating the facts, Basin notified plaintiffs that it did not feel that the proposed suit would be for the best interests of the corporation; that it believed Willis had the right to participate independently in the oil ventures described in plaintiffs' complaint under terms of the contract of February 13, 1945; that said contract also contained a provision with reference to forfeiture of the oil leases therein assigned to Basin in the event of its failure to perform the agreement; that by reason of the existing controversy, Basin desired a declaration of its rights and duties, including the questions of the construction and validity of the contract. It prayed for a judgment decreeing that said contract was valid in all respects and binding on the parties thereto. *564
On January 26, 1954, plaintiff stockholders filed a demurrer to the above cross-complaint. Hearing of the demurrer was successively continued during the time the court considered the motions filed by Willis and Basin under section 834 of the Corporations Code. Plaintiffs having failed to comply with the order to deposit security within the designated time, Willis and Basin moved for entry of a judgment of dismissal. These motions were granted and a judgment of dismissal of the action as to Basin and Willis was signed on July 14, 1954.
[7] On the day following the dismissal of their action, plaintiffs filed and served their answer to Basin's cross-complaint for declaratory relief. An analysis of this answer discloses that it is substantially a reiteration, with greater emphasis on evidentiary detail, of plaintiffs' original action to hold Willis as a constructive trustee of the East Los Angeles leases and the moneys derived therefrom. Paragraph VI of the answer alleges that plaintiffs "desire a declaration on behalf of the cross- complainant corporation that the cross-defendant Willis is an involuntary or constructive trustee of such money, property, assets and rights of which the cross-which has been wrongfully taken by cross-defendant Willis complainant corporation has been wrongfully deprived and from the cross-complainant corporation." The prayer is that the "Court declare the rights and interests of the cross-complainant corporation and the cross-defendant Willis in accordance with the allegations of this answer ..."
On July 16, 1954, plaintiffs' demurrer to the cross-complaint was ordered off calendar. On July 20, Basin filed with the county clerk a request for dismissal of its cross-complaint without prejudice. On July 23, the clerk entered the dismissal of the cross-complaint. On August 5, Willis filed a motion to quash service of, and to strike, plaintiffs' answer to the cross- complaint. On August 10, plaintiffs filed a notice of motion to vacate the entry of the dismissal of the cross-complaint. On November 9, the court granted Willis' motion and denied plaintiffs' motion. Plaintiffs have appealed each of these orders.
Question
The fundamental question to be determined is whether Basin was precluded from obtaining a dismissal of its cross-action for declaratory relief by virtue of any purported request for affirmative relief in plaintiffs' answer thereto. *565
Analysis of the Pleadings
From an analysis of the pleadings whose substance we have previously described, it is very clear that the issue raised by Basin's first affirmative defense in its answer and its cross-action for declaratory relief are essentially the same. In each the contract of February 13, 1945, is set forth and relied upon to nullify plaintiffs' purported right of action. In the answer, Basin sets out the contract as a defense to the derivative action. In the cross-complaint, it requests a declaration that the contract be declared valid and binding on the parties. It is thus manifest that the cross-action merely restated the affirmative allegations of the answer; it raised no issues not embraced within the issues already joined. An adjudication upon the issues formed in the original action would adequately and fully determine all matters relative to the rights and obligations of the parties under the contract pleaded in the declaratory relief action. (Schessler v. Keck, 125 Cal. App. 2d 827, 837 [271 P.2d 588]; Simpson v. Security First Nat. Bank, 71 Cal. App. 2d 154, 157 [162 P.2d 494]; Citizens' etc. Pensions v. Board of Supervisors, 91 Cal. App. 2d 658, 660 [205 P.2d 761].) Technically, the cross-complaint was actually no more than a repetition of the first special defense comprehended in Basin's answer and required no pleading thereto by plaintiffs. (Johnston v. Wheeler, 118 Cal. App. 439, 441-442 [5 P.2d 431].) Plaintiffs' so-called answer to Basin's declaratory relief cross-complaint was simply a recasting of its original shareholders' complaint praying that judgment be rendered "declaring ... Willis an involuntary or constructive trustee of those monies, property, assets and rights of which the corporation has been wrongfully deprived. ..."
Bearing in mind the posture of the case as presented to the trial court--the dismissal of the original action having already been effected and the denominated cross-complaint and purported answer thereto being little more than surplus pleadings (the former being in substance only a repetition of the answer and the latter a repetition of the substance of the complaint)--it was clearly correct in its orders of November 9, 1954, striking plaintiffs' answer to the cross-complaint and denying their motion to vacate Basin's dismissal of its cross-complaint. Plaintiffs' answer was an oblique attempt to perpetuate their stockholders' derivative action, despite their failure to comply with the order requiring them to deposit security as a precondition of maintaining *566 such action, in the guise of a pleading requesting a declaration of "the rights and interests of the cross-complainant corporation and the cross-defendant Willis in accordance with the allegations of this answer. ..." These allegations, as we have observed, constituted their alleged cause of action as minority stockholders instituting the derivative suit embodied in their original complaint. Had plaintiffs complied with the order of the trial court made under the provisions of section 834, an adjudication of the rights asserted and the issues raised in that action would have obviated any necessity for other declarations of rights. (Schessler v. Keck, supra; Simpson v. Security First Nat. Bank, supra; Citizens' etc. Pensions v. Board of Supervisors, supra; Roberts v. Wachter, 104 Cal. App. 2d 281, 290 [231 P.2d 540].)
No Abuse of Discretion
In the situation here present, the court was fully justified in refusing to entertain the action for a declaration of rights as prayed for either in Basin's cross-complaint or plaintiffs' answer thereto. The trial judge may, under section 1061, Code of Civil Procedure, refuse to declare the rights and liabilities of the parties if such declaration "is not necessary or proper at the time under all the circumstances." (Emphasis added.) Since the Legislature has provided, under section 834 of the Corporations Code, a special statutory procedure governing the prosecution of derivative actions by shareholders, since plaintiffs had filed such an action but had failed to comply with the court's order to furnish security pursuant to that statute, and since the controversy between the parties could have been fully adjudicated in that action, the cross-action for declaratory relief and the answer constitute simply a reiteration of the issues joined therein. To have entertained the cross-complaint would have enabled plaintiffs to render nugatory the judgment dismissing their complaint. It would have permitted them to circumvent the processes of the court by accomplishing through indirection what they were prevented from achieving directly upon their failure to deposit the security which the court had ruled was required. It therefore being not "proper at the time under all the circumstances" to entertain the declaratory relief action, since it would be conducive to a frustration of the judgment dismissing the original action encompassing the same controversy, the court exercised its discretion to deny declaratory relief by the appropriate procedure of making the orders of November 9, 1954. Whether a declaration or determination is *567 proper in an action for declaratory relief is a matter within the trial court's discretion and its decision to deny relief will not be disturbed on appeal unless it be clearly shown, and this is not such a case, that the discretion was abused. (California Physicians' Service v. Garrison, 28 Cal. 2d 790, 801 [172 P.2d 4, 167 A.L.R. 306]; City of Alturas v. Gloster, 16 Cal. 2d 46, 49 [104 P.2d 810]; Schessler v. Keck, 125 Cal. App. 2d 827, 837 [271 P.2d 588].)
The judgment of dismissal in appeal No. 20919 and the orders in appeal No. 20933 are affirmed.
Moore, P. J., and McComb, J., concurred.
"11. Time is hereby declared to be of the essence of this agreement. In the event of the failure by Basin to perform any of its agreements or covenants herein contained, and the continuance of such failure for a period of thirty (30) days from and after the date of service of written notice given to Basin by Willis at the office of Basin at Los Angeles, California, specifying the agreement or covenant as to which Basin is in default, Willis shall have the right at his option to terminate this agreement and Basin's rights hereunder and shall be entitled to the reassignment to Willis of all of Basin's rights under said lease."
"Upon any reassignment of Basin's rights to Willis as provided in this paragraph '11' hereof, all obligations of Basin under this agreement shall cease and determine as to the lands embraced in such reassignment and the production therefrom, except Basin's obligation to pay to the lessor under said lease any royalty theretofore accrued thereunder and unpaid on account of substances produced by Basin from such lands, and to pay to Willis any overriding royalty theretofore accrued and unpaid on account of substances produced by Basin from such lands. ..."
NOTES
[fn. *] *. This possibility of forfeiture is based on section 11 of the agreement reading, in part, as follows: | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346253/ | 311 S.E.2d 707 (1984)
STATE of North Carolina
v.
Grady Melvin HOLLOWAY.
No. 8323SC116.
Court of Appeals of North Carolina.
February 21, 1984.
*708 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Steven F. Bryant and Sp. Deputy Atty. Gen. Jo Anne Sanford, Raleigh, for the State.
Moore & Willardson by Larry S. Moore, John S. Willardson, and William F. Lipscomb, North Wilkesboro, for defendant-appellant.
BECTON, Judge.
After the trial court denied defendant's motion to suppress evidence seized during the execution of a search warrant, defendant, pursuant to the provisions of N.C.Gen. Stat. § 15A-979(b) (1983), entered a plea of guilty to trafficking in methaqualone in violation of N.C.Gen.Stat. § 90-95(h)(2)(b) (1981 & Supp.1983) and trafficking in marijuana in violation of N.C.Gen.Stat. § 90-95(h)(1)(b) (1981 & Supp.1983). Defendant was sentenced to a term of fourteen years. From the court's ruling on his motion to suppress, the defendant appeals.
I
Defendant first assigns error to the trial court's denial of his motion to suppress evidence seized pursuant to a search warrant. Defendant contends, first, that the warrant was not issued by a "neutral and detached magistrate" as required by law; and, second, that the trial court erroneously prevented preservation of evidence to this effect for the record on appeal.
The Fourth Amendment requirement that warrants be issued only upon the determination by a "neutral and detached magistrate" that probable cause exists has long been recognized by the courts of the country. Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948). Our examination of the law as it has developed since Johnson reveals that the broad requirement of a "neutral and detached magistrate" involves two distinct concepts. First, the office held by the person issuing the warrant must be independent of "connection with any law enforcement activity or authority which would distort the independent judgment the Fourth Amendment requires." Shadwick v. City of Tampa, 407 U.S. 345, 350-51, 92 S. Ct. 2119, 2123, 32 L. Ed. 2d 783, 789 (1972). For example, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the Supreme Court held that a state attorney general was not a neutral and detached magistrate by virtue of his office, saying: "[T]here could hardly be a more appropriate setting than this for a per se rule of disqualification rather than a case-by-case evaluation of all the circumstances." Id. at 450, 91 S.Ct. at 2029, 29 L.Ed.2d at 573. Similarly, in Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977), the Supreme Court held that an official who was compensated on a per warrant basis could not be considered neutral and detached.
We turn now to the second concept. It is not enough, say our courts, that the office be neutral and detached. The person holding office must perform his duties in a neutral and detached manner. In Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 *709 S.Ct. 2319, 60 L. Ed. 2d 920 (1979), the Supreme Court held that a judicial officer lost "whatever neutral and detached posture [that] existed at the outset" when he "allowed himself to become a member, if not the leader, of the search party which was essentially a police operation." Id. at 327, 99 S.Ct. at 2324, 60 L.Ed.2d at 928-29. In State v. Miller, 16 N.C.App. 1, 190 S.E.2d 888 (1972), modified and aff'd 282 N.C. 633, 194 S.E.2d 353 (1973), this Court held that a warrant was not issued by a neutral and detached magistrate where the official failed to read the affidavit offered in support of the warrant application. Under those circumstances, said this Court, the magistrate "utterly failed to perform the important judicial function which it was his duty to perform...." Miller, 16 N.C.App. at 10, 190 S.E.2d at 894.
In the case before us, the motion to suppress on grounds that the warrant was not issued by a neutral and detached official necessitated inquiry by the trial judge into whether the warrant was issued by a person holding proper independent office. Because defendant had produced no evidence to the contrary, this initial inquiry required only that the judge determine from the face of the warrant that it was in fact issued by an official authorized to do so in this State. The issuing official, Janet Handy, as a deputy Clerk of Superior Court in Wilkes County, was clearly authorized to issue search warrants. See N.C.Gen.Stat. § 15A-243(b)(2) (1983) and N.C.Gen.Stat. §§ 7A-180 to 181 (1981).
With regard to the second requirement, the trial judge had to consider the manner in which Ms. Handy performed her judicial function of determining, from the evidence before her, the existence of probable cause. Although the record discloses that Ms. Handy read the supporting affidavit supplied by the officers who requested the warrant and questioned one of the officers as to the contents of the affidavit, these facts do not conclusively demonstrate that Ms. Handy performed her duties in a neutral and detached fashion. Defendant specifically asserted that Ms. Handy's decision to issue the warrant was based on personal reasons and personal relationships. We hold that the trial court erred in denying, on relevancy grounds, defendant an opportunity to develop, even for purposes of the record, matters that could show that Deputy Clerk Handy did not perform her function in a neutral and detached way.[1]
The "neutrality" and "detachment" of the issuing official can be challenged on the basis of personal, political, or economic conditions or relationships. See generally 2 W. LaFave, Search and Seizure § 4.2 (1978). It begs the question to suggest that defendant's inquiry is irrelevant and goes to a "person's personal life" when defendant's inquiry is specifically designed to show that Ms. Handy issued the warrants because of her personal convictions and social relationships with other parties vitally concerned with the judicial function involved.
If the circumstances under which the neutrality and detachment of the issuing official can be challenged are not here presented, will they ever be? Consider the following factors, in the light most favorable to the defendant, known by the trial judge at the suppression hearing:
a. On 17 March 1982, Wilkes County Magistrate Barry Wood, on the basis of information submitted to him by *710 three law enforcement officers, concluded that there was no probable cause to justify the issuance of a search warrant for Staley's Restaurant in Wilkes County;
b. Michael Ashburn, the District Attorney for the Twenty-Third Judicial District, in a telephone conversation with Magistrate Wood and the three law enforcement officers, confirmed that there was no probable cause to justify the issuance of the search warrant;
c. On the following day, the three law enforcement officers received from Janet Handy, a Deputy Clerk of the Superior Court of Wilkes County, a warrant to search Staley's Restaurant without advising her that Magistrate Wood had turned down a search warrant for the same premises the night before. (The affidavit presented to Ms. Handy presumably included an allegation that an informant had observed methaqualone in Staley's Restaurant within the past 48-hour period.)
d. At the time Ms. Handy issued the search warrant she was allegedly dating one or two of the law enforcement officers who applied to her for the search warrant. (Indeed, the trial court, not being concerned with hearsay at the suppression hearing, allowed Magistrate Wood to testify that he had heard that one or both of the S.B.I. agents were dating Janet Handy at the time the search warrant was issued.);
e. Ms. Handy, at the suppression hearing, stated, among other things, that "I am interested in how much time he [the defendant] is going to get." She further testified that she would like to see Mr. Holloway get some time out of this; and
f. The search warrant was procured on the basis of statements allegedly made to the law enforcement officers by a confidential source of information, later identified as Michael Walter Jarvis. Michael Walter Jarvis, however, testified at defendant's suppression hearing and disavowed every allegation of fact attributed to him by the law enforcement officers in their application for the search warrant.
Now, we do not suggest that the law enforcement officers were forever bound by Magistrate Wood's determination on 17 March 1982 that no probable cause then existed. Nor do we suggest that the trial court could not consider the personal interest or "stake" Michael Walter Jarvis had in disavowing that he was a confidential informant. Rather, we suggest that the factors listed above show that defense counsel was not on a fishing expedition. Defense counsel had a good faith basis for trying to develop a record that Ms. Handy's bias or interest (just like Michael Walter Jarvis' bias or interest) affected the manner in which she purported to perform her duties.
This is not a case in which a defendant merely alleges that the magistrate or other issuing official and the law enforcement officer who seeks the search warrant are neighbors, hunting partners, or lifelong friends. On those facts, the trial court's decision might gain our concurrence. The facts and circumstances in this case are substantially more compelling, however, and defendant is entitled to a plenary hearing to develop an adequate record, at least for appellate purposes, to support his contentions. On the basis of the information available to it, the trial court erred in restricting defendant's examination of Ms. Handy and in concluding that Ms. Handy's personal life should not be called into court.
After all, the search warrant process interposes an orderly procedure in which an impartial magistrate can make an informed decision on the issue of probable cause. 2 W. LaFave, supra p. 4, § 4.2, at 29. Were it otherwise, there would be no need to inquire into a magistrate's attributes, motives, or particular conduct in issuing a search warrant. Fortunately, the law recognizes that a magistrate may have such a personal interest in a case that the magistrate cannot be deemed to be impartial. It *711 is the quid pro quothe issuing of a warrant in exchange for some benefitthat is important. Simply put, defendant's reliance on Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977) is not misplaced since his
situation, again, is one which offers a `possible temptation to the average [woman] as a judge ... or [it] might lead [her] not to hold the balance nice, clear and true between the State and the accused.' It is, in other words, another situation where the defendant is subjected to what surely is judicial action by an officer of a court who has `a direct, personal, substantial, pecuniary interest' in [her] conclusion to issue or deny the warrant.
Id. at 250, 97 S.Ct. at 548, 50 L.Ed.2d at 448.
II
Defendant next contends the trial court erred in denying his motion to suppress since there was no probable cause for issuance of the search warrant. Defendant attacks the affidavit used to secure the warrant alleging "that the confidential informant described therein was a complete and total fabrication on the part of the law enforcement officers." At the hearing on his motion, defendant presented evidence from one Michael Jarvis who denied each allegation of fact attributed to the confidential informant and stated that he never gave any information to the law enforcement officers as a confidential informant. The law enforcement officers who procured and executed the search warrant then testified that Michael Jarvis was their confidential source and that he gave the information attributed to a confidential source in the search warrant.
Defendant has the burden of establishing by a preponderance of the evidence that false statements were knowingly and intentionally included in the warrant and affidavit by the affiant. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The trial court found the following pertinent facts:
[T]he court further finds that Officer Sam Winters testified that the confidential informant, on whom he relied, was Michael Jarvis; and that Officer Winters further testified that the information set forth in the affidavit furnished to the magistrate had indeed been furnished to him by said Michael Jarvis. The court further finds that Michael Jarvis had earlier testified that he was not the confidential informant relied upon by Agent Stubbs or Deputy Sheriff Winters; and that Michael Jarvis, in his testimony, denied furnishing any information to the officers concerning the affidavit used to secure the issuance of this search warrant. The court further finds that prior to taking the stand and testifying, Michael Jarvis took an oath on the Bible to tell the truth and that Detective Winters took an oath on the Bible to tell the truth. The court further finds the court has absolutely no reason to doubt the veracity of Officer Sam Winters; and therefore, the court relies upon the testimony of Detective Winters in reaching its conclusion as to the reliability of the information furnished in the affidavit used to secure the issuance of this search warrant.
N.C.Gen.Stat. § 15A-977(f) (1983) requires the trial court to make findings of fact after a hearing on a motion to suppress. The weight given the testimony is properly for the finder of fact. The facts found by the trial court are binding if supported by competent evidence. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980). The record reveals sufficient competent evidence to support the court's findings of fact. Therefore, defendant having failed to carry his burden of showing by a preponderance of the evidence that there were false statements knowingly included in the affidavit, the assignment of error is overruled.
III
Defendant finally contends that the trial court erred in denying his motion to suppress evidence seized from the basement portion of the searched premises. After *712 executing the search warrant in the upstairs portion of the premises, which was used as a restaurant, the law enforcement officers proceeded to the basement, which could only be entered from outside the premises. Upon finding the basement locked the officers attempted to obtain a key. When they were told that defendant had just left for Winston-Salem, with the only key, they cut the lock from the door and proceeded to search the basement. A search of the basement revealed 792 pounds of marijuana and 8,450.9 dosage units of methaqualone.
Defendant contends the officers' forced entry into the basement violated the restrictions set forth in N.C.Gen.Stat. § 15A-251 (1983) which provides:
An officer may break and enter any premises or vehicle when necessary to the execution of the warrant if:
(1) The officer has previously announced his identity and purpose as required by G.S. 15A-249 and reasonably believes either that admittance is being denied or unreasonably delayed or that the premises or vehicle is unoccupied; or
(2) The officer has probable cause to believe that the giving of notice would endanger the life or safety of any person.
Defendant argues that since the upstairs portion of the premises was occupied, N.C. Gen.Stat. § 15A-251 required that the officers place the premises under guard and await the return of Mr. Holloway, and that their forced entry was thus unauthorized. The suggested procedure would cause an unreasonable delay and is clearly not mandated by the statute.
Defendant further argues that the marijuana should be suppressed because marijuana was not listed as an item to be seized and because it was not in plain view. The marijuana was discovered while the officers were searching the premises for methaqualone pursuant to a search warrant. "When officers are conducting a valid search for one type of contraband, and find other types ..., the law is not so unreasonable as to require them to turn their heads." State v. Oldfield, 29 N.C.App. 131, 135, 223 S.E.2d 569, 571, cert. denied, 290 N.C. 96, 225 S.E.2d 325 (1976). The marijuana was properly seized when it was found during the search for methaqualone. The assignment of error is overruled.
IV
For the reasons set forth in part I of this opinion we hold that the trial court's decision to deny defendant an opportunity to develop, even for purposes of the record on appeal, matters that could show that the person who issued the search warrant did not perform her function in a neutral and detached way was error. Defendant is entitled to a plenary hearing in an effort to support his contention, and this case is accordingly
Reversed and remanded.
HEDRICK, J., dissents.
EAGLES, J., concurs.
HEDRICK, Judge, dissenting.
I agree with that part of the majority opinion which concludes that the Deputy Clerk had probable cause to issue the search warrant, and that the trial judge did not err in denying defendant's motion to suppress the evidence seized pursuant to a search of the basement of the building described in the warrant. I strenuously disagree, however, with the majority's holding that the trial judge erred in not requiring the issuing magistrate to answer, "even for purposes of the record on appeal," whether she had "any type of social relationship with any of the officers." Further, I question the clarity of the majority's order that reverses "this case," and remands for "a plenary hearing," at which defendant is to be given an opportunity "to develop an adequate record, at least for appellate purposes, to support his contentions."
N.C.Gen.Stat. Sec. 15A-977(a), in pertinent part, provides:
A motion to suppress evidence in superior court made before trial must be in *713 writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made. The motion must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated. The State may file an answer denying or admitting any of the allegations.
(emphasis added). The Official Commentary immediately following this statute states:
This section is structured to produce in as many cases as possible a summary granting or denial of the motion to suppress. The defendant must file an affidavit as to the facts with his motion, and the State may file an answer denying or admitting facts alleged in the affidavit. If the motion cannot be otherwise disposed of, subsection (d) provides for a hearing at which testimony under oath will be given....
In the instant case, the unverified motion to suppress, signed by defendant's counsel, states:
4. Defendant is informed and believes and alleges on information and belief that the aforesaid Deputy Clerk of Superior Court of Wilkes County was not a "neutral and detached magistrate" as required to justify the issuance of the search warrant....
The motion did not identify the "source of the information and the basis for the belief," nor was it accompanied by a supporting affidavit. Contrary to the majority's statement that "[d]efendant specifically asserted that Ms. Handy's decision to issue the warrant was based on personal reasons and personal relationships," defendant failed to set out in his motion a single fact or contention even hinting at such an assertion. Because defendant failed to identify any factual basis for his challenge to the Deputy Clerk's issuance of the warrant, I believe the trial judge could have confined his inquiry to an examination of the warrant and affidavit filed in support thereof.
Our conclusion in this regard finds support in a decision by the California Court of Appeal, reached on similar facts. In People v. Kashani, 143 Cal. App. 3d 77, 191 Cal. Rptr. 562 (1983), the defendant sought to suppress evidence seized pursuant to a search warrant based on her specific allegation that the issuing magistrate had failed to read all the supporting material prior to issuing the warrant. The trial court quashed service of a subpoena on the issuing official, ruling that defendant had alleged insufficient facts to overcome the "presumption of regularity attending issuance of the warrant." Id. at 79, 191 Cal.Rptr. at 563. On appeal, defendant contended she was "prejudicially denied the opportunity to establish fatal irregularity by the magistrate in the issuance of the search warrant." Id. The response of the California court is instructive:
Absent some palpable indication to the contrary, it is assumed the magistrate considered all the material presented him in support of an application for search warrant.... This assumption is not indulged where substantial irregularity appears on the face of the record.... If the assumption arises, however, the burden of dispelling it rests on defendant.... That burden is not satisfied by a sweeping pro forma assertion that the magistrate did not read all material offered in support of the search warrant application.... Such an assertion could and, if deemed legally adequate to place in issue the conduct of the magistrate, most assuredly would be made in virtually every instance where a search warrant has been issued.
Id. at 79-80, 191 Cal.Rptr. at 564.
In the present case, examination of the warrant and supporting affidavit discloses no irregularity such as was present in State v. Miller, 282 N.C. 633, 194 S.E.2d 353 (1973). And in North Carolina, as in California, "[a] search warrant is presumed to be valid unless irregularity appears on its face." State v. Dorsey, 60 N.C.App. 595, *714 597, 299 S.E.2d 282, 283, disc. rev. denied, 308 N.C. 192, 302 S.E.2d 245 (1983). I would hold on these facts that the trial judge was not obliged to permit defense counsel to conduct a sweeping inquiry into Ms. Handy's social relationships or personal convictions.
While I believe the trial judge could have summarily disposed of defendant's contention that the search warrant was not issued by a neutral and detached magistrate, I feel compelled to address as well the majority discussion of the substantive law in this area. It is not surprising that the majority cites no authority for the ill-founded notion that the social relationships of a magistrate have possible relevance to her status as a neutral and detached official. My research has failed to disclose a single case in which the issuance of a search warrant was successfully challenged on these grounds. Indeed, the most impressive aspect of research on the matter is the infrequency with which courts and commentators have even recognized the possibility of such a claim.
In a recent Georgia case, Tabb v. State, 250 Ga. 317, 297 S.E.2d 227 (1982), the defendant challenged issuance of a search warrant on the grounds that the issuing magistrate was not neutral and detached "because of his personal association with police officers." Id. at 321, 297 S.E.2d at 231. The defendant presented evidence that the issuing magistrate served as county coroner, that he had formerly been employed as a deputy sheriff and that he "regularly visited the sheriff's office and county jail." Id. The Georgia Supreme Court upheld the lower court's ruling that these facts did not destroy the magistrate's status as a neutral and detached official. The court said, "[m]ere personal associations with police officers, without more, do not disqualify a magistrate from issuing a search warrant." Id. The court distinguished an earlier case, Thomason v. State, 148 Ga.App. 513, 251 S.E.2d 598 (1978), "where the officer who issued the warrant took part in the actual search and seizure of evidence," saying, "[t]here is no evidence of such misconduct ... in this case." Tabb v. State, 250 Ga. at 321, 297 S.E.2d at 232.
The focus of the Georgia court on the manner in which the officer performed his judicial function is typical of courts confronted with challenges to the neutrality and detachment of issuing magistrates. See, e.g., Clodfelter v. Commonwealth, 218 Va. 98, 235 S.E.2d 340 (1977) (warrant issued two minutes after supporting affidavit filed not per se invalid); State v. Miller, 282 N.C. 633, 194 S.E.2d 353 (1973) (warrant and supporting affidavit disclosed on face failure to properly perform judicial function); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27, 99 S. Ct. 2319, 2324, 60 L. Ed. 2d 920, 928-29 (1979) ("We need not question the subjective belief of the Town Justice in the propriety of his actions, but the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset. He allowed himself to become a member, if not the leader of the search party...."). This focus on the facts relating to the official's performance of his judicial function has been echoed by the commentators:
Sometimes the claim is that the magistrate, while not having a financial interest in the case, had a sufficient personal interest that he cannot be deemed to have been impartial. When based upon nothing more than the fact that the magistrate was previously acquainted with the defendant and was aware of his criminal ways, this contention has rightly been rejected. Somewhat more difficult are those instances in which the magistrate is involved or interested in some way in the criminal activity with which the warrant is concerned. It has been held that a search warrant may be issued by a judge who knew he would probably be a witness in the forthcoming prosecution because the affidavit alleged the use of fraudulent court orders in the criminal scheme. Some limited "encouragement" to the police by the magistrate, influencing the obtaining of the warrant, has likewise been deemed not fatal, but the magistrate can go too far.... Another way in which the constitutional requirement *715 that a search warrant be issued by a neutral and detached person may come into play is because of the conduct of the magistrate issuing the warrant. It is sometimes alleged that, while the magistrate was not disqualified from issuing warrants, his actions in a particular case demonstrate that he was neither neutral nor detached. But these contentions have seldom prevailed.
2 W. LaFave, Search and Seizure Sec. 4.2 (1978). See also 8B James Wm. Moore, Moore's Federal Practice Sec. 41.03 (2d ed. 1983): "Because of the comparative accessibility to review, this ... question [of who can be neutral and detached] tends to focus on situational neutrality and detachment rather than emotional or intellectual absence of bias," (emphasis original) (citing Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977); Lo-Ji Sales, Inc. v. New York, supra).
Bearing in mind this emphasis on the objective circumstances surrounding the magistrate's performance of her judicial function, we note the following facts. The Deputy Clerk in this case testified that she read the supporting affidavit supplied by the officers requesting the warrant. She testified that she placed one of the officers under oath and interrogated him as to the contents of the affidavit. The majority has upheld the trial court's conclusion that the affidavit established probable cause for issuance of the search warrant. I think these facts establish that Ms. Handy properly performed her judicial function.
Despite the uncontradicted facts set out above, the majority concludes that the court committed prejudicial error when it refused to order Ms. Handy to answer a question about whether she has "any type of social relationship with any of the officers." The majority attempts to bolster its conclusion by listing facts that are clearly irrelevant to whether the Deputy Clerk was a neutral and detached magistrate. This reliance on extraneous circumstances, such as the testimony of the alleged confidential informant, for example, is in my opinion confusing and misplaced. It makes even more difficult that task I now turn todetermination of "the rule," set forth in the majority decision, by which lower courts are to be guided in the future.
Under the majority opinion, the test to be used in determining the relevance of proffered evidence in a challenge to the neutrality and detachment of a judicial officer is so unclear as to be no test at all. At one point, the majority states: "It is the quid pro quothe issuing of a warrant in exchange for some benefitthat is important," citing Connally, with its language about "a direct, personal, substantial, pecuniary interest." (emphasis added). While I have no quarrel with this "warrant for benefit" test, I am baffled by any suggestion of its relevance to these facts. There is contained nowhere in the record or briefs any slight hint that Ms. Handy issued the warrant in exchange for some benefit. If this is indeed the test, the question concerning Ms. Handy's "social relationships" was clearly irrelevant.
Other portions of the majority opinion suggest that it is not "benefit" that is crucial in determining the neutrality and detachment of the issuing official, but rather the "personal convictions and social relationships" of the magistrate whose performance is called into question. I do not doubt that deputy clerks, like the rest of us, are influenced in their perceptions and behavior by a myriad of factors, not the least of which are their personal convictions and social relationships. Indeed, an entire scientific field is devoted to identifying and understanding the extremely varied and complex causes of human behavior. I think it sheer folly, however, to attempt, as the majority does here, to categorize "personal convictions and social relationships" based on nothing more than one's own personal experiences and unvalidated assumptions. That folly is illustrated, I believe, by the majority's bare assertion that relationships such as those between "neighbors, hunting partners, or life-long friends" pose less threat to the neutrality and detachment of the issuing official than do the "social relationships" here inquired about. However *716 desirable it may be to understand fully the subjective process underlying every judicial decision, the reality is that this is a goal impossible of attainment. The law must content itself with assuring that an official charged with performance of a judicial function performs that function in an objectively proper manner. The evidence clearly establishes that Ms. Handy acted properly in issuing the search warrant. To say that a showing of proper performance of duty may be overcome by a showing of possible subjective bias is, to my mind, to create virtually unlimited opportunity for confusion, inconsistency, and "frivolous attacks upon [the] dignity and integrity [of the judiciary]." United States v. Dowdy, 440 F. Supp. 894, 896 (W.D.Va.1977).
Finally, I wish to address this Court's disposition of the case, in light of its resolution of the issues. When an appellate court remands a case for further proceedings, it is the duty of that court to give a clear mandate to the trial court as to how it shall proceed. Consider the confusion occasioned by the decision here that "reverses and remands" "this case" for "a plenary hearing" at which defendant is entitled to be given an opportunity "to support his contention." What is reversed? What is affirmed? Since defendant's "contentions" are nowhere specified, where is the "plenary hearing" to end? To what extent is counsel to be permitted to delve into the "personal convictions and social relationships" of the judicial official, and to what end?
In conclusion, I feel that today's decision represents a radical and ill-advised extension of the law as it relates to the constitutional right to have the determination of probable cause made by a neutral and detached magistrate. More alarming still is the majority's failure to anticipate and respond to the short-term and long-term effects of its unprecedented holding. For these reasons, I dissent and vote to affirm the judgment.
NOTES
[1] The basis for the trial court's decision is shown in the following excerpt from the Record:
Q. Now, did you have any type of social relationship with any of the officers?
MR. ASHBURN: Objection.
COURT: Sustained.
MR. WILLARDSON: I think at this point this could be important to our motion. We think this goes to the heart of the matter.
COURT: It is going to be a sad thing if a person's personal life is going to be called into court. If that happened to me, I would quit, if I worked in the Clerk's officeif I were called into court and had to be questioned about my personal life. That objection is sustained.
MR. WILLARDSON: I ask that it be answered for the record.
COURT: I sustained the objection.
MR. WILLARDSON: Can she whisper the answer for the record?
COURT: I sustained the objection. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1347854/ | 582 F.3d 617 (2009)
Judy WILLIAMS, Plaintiff-Appellant,
v.
REDFLEX TRAFFIC SYSTEMS, INC., City Of Knoxville, Tennessee, Bill Haslam as Mayor of the City of Knoxville, Tennessee, Knoxville City Council, Redflex Traffic Systems, Inc., d/b/a www.Photonotice.Com, Michael L. Sullivan, Gordon Catlett, Joseph Bernard, and Unknown Persons, Defendants-Appellees.
No. 08-5545.
United States Court of Appeals, Sixth Circuit.
Argued: June 10, 2009.
Decided and Filed: October 2, 2009.
*618 ARGUED: Gerald L. Gulley, Jr., Gulley Oldham, PLLC, Knoxville, Tennessee, for Appellant. Michael S. Kelley, Kennerly, Montgomery & Finley, P.C., Knoxville, Tennessee, Ronald Eugene mills, City Of knoxville Law Department, Knoxville, Tennessee, Charles W. Swanson, Sheppeard, Swanson & Mynatt, PLC, Knoxville, Tennessee, for Appellees. ON BRIEF: Gerald L. Gulley, Jr., Gulley Oldham, PLLC, Knoxville, Tennessee, David B. Hamilton, Norwood Law Office, Knoxville, Tennessee, for Appellant. Michael S. Kelley, Kennerly, Montgomery & Finley, P.C., Knoxville, Tennessee, Ronald E. Mills, City of Knoxville Law Department, Knoxville, Tennessee, Charles W. Swanson, Sheppeard, Swanson & Mynatt, PLC, Knoxville, Tennessee, for Appellees.
Before: MARTIN, RYAN, and SUTTON, Circuit Judges.
MARTIN, J., delivered the opinion of the court, in which SUTTON, J., joined. RYAN, J. (pp. 621-22), delivered a separate concurring opinion.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
In 2005, the City of Knoxville entered into a contract with Redflex Traffic Systems, Inc. for cameras to take photographs of cars that run red lights. An ordinance provides that the owner be sent notice of the violation and assessed a $50 "civil penalty." Redflex handles the legwork for issuing tickets. It installs and manages the cameras and its employees review photos to determine if someone ran a red light. If they did, and their license plate is visible, the incriminating photos are sent to the Knoxville Police Department where an officer is to view them and send a citation to the car's registered owner. Williams v. Redflex Traffic Inc., No. 3:06-cv-400, 2008 WL 782540, *2-3, 2008 U.S. Dist. LEXIS 22723, *7 (E.D.Tenn. Mar. 20, 2008).
Plaintiff Judy Williams's car went through an intersection, was photographed by Redflex, and, shortly thereafter, she received a citation. This citation, as prima facie evidence of a violation, gave her three options: pay the $50 fine, complete an affidavit of non-responsibility that she was not the driver (and name the actual driver), or schedule a hearing at Knoxville City Court. The citation stated that if she scheduled a hearing she would be assessed a $67.50 "court processing fee." Williams instead took no action, and later filed this federal suit contending that the procedures Knoxville uses to hear challenges to the imposition of the fines violate the federal and Tennessee Constitutions, as well as Tennessee state-law. The district court dismissed for lack of standing. On appeal, *619 she contends that she has standing in view of the apparent "processing fee," and reasserts her challenges to Knoxville's procedures, along with her supplemental state-law claims.
At oral argument, the parties made a key agreement: that Knoxville would provide Williams with a hearing. Thus, although Williams has standing to challenge the ticket itself because of the improper "fee," the city's agreement to give her a hearing renders her challenges to the hearing's procedures unripe, we AFFIRM the district court's dismissal.
I.
Knoxville, Tennessee enacted the "Automated Enforcement" ordinance, Knoxville Code § 17-210, to permit a traffic control system premised on photographs of cars that run red lights. To make it a reality, in December 2005 Knoxville signed a contract with codefendant Redflex, which specializes in such photo enforcement programs. The contract designates Redflex an "independent contractor," and the company's employees install and monitor the cameras, identify potential violators, and send photos to the Knoxville Police Department. An officer is supposed to view the snapshot and send a signed citation to the car's registered owner. Redflex keeps more than 50% of the tickets' proceeds.
Williams's car went through an intersection in August 2006, Redflex identified it as having run a red light, and she received a citationthough directly from Redflex, containing only a facsimile of an officer's signature. It stated that she violated the local ordinance, and its instructions gave her three rather unattractive options. First, she could pay a $50 fine by mail or in person. If she chose that option, the citation provided that no record of the violation would be kept or sent to her insurance company or the department of motor vehicles. Second, Williams was given the option of completing an "Affidavit of Non-Responsibility" stating that she was not driving her car when it went through the red light (while naming who was driving). This option also provided boxes for the owner to indicate if they had sold their car or if their car or license plate had been stolen. Third, Williams was given the option of scheduling a hearing at Knoxville City Court. This option further stated that "[t]o schedule a hearing you will be assessed a court processing fee of $67.50." This was apparently some kind of misprint: defendants vigorously contend that no such "processing fee" is in fact imposed for requesting a hearing. But there is no debate that this was printed clearly on the citation.
Williams did not respond to the ticket, and later filed this suit in federal court against, among others, Redflex and the City of Knoxville. Her complaint alleged a variety of state and federal claims, including (but not limited to) violations of her procedural due process rights under the Fourteenth Amendment to the federal constitution, and violations of state constitutional and statutory law.[1] The defendants moved for summary judgment. The district courtthough stating its view that the program was "Orwellian" and "may violate U.S. or Tennessee constitutional" lawgranted defendants' motion to dismiss on the ground that Williams lacked standing. Redflex, No. 3:06-cv-400, 2008 *620 WL 782540, 2008 U.S. Dist. LEXIS 22723. Williams appeals to this Court, focusing her appeal on the standing question and, assuming this Court has jurisdiction, whether the ordinance and red light program violates federal or state law. Finally, at oral argument, the parties made a key agreement: Knoxville would give her a hearing. This is important to our disposition.
II.
This Court reviews a grant of summary judgment de novo, and must draw all reasonable inferences in Williams's favor. Crawford v. TRW Auto., 560 F.3d 607, 611 (6th Cir.2009). The district court dismissed Williams's claims for want of standing. To satisfy "the irreducible constitutional minimum of standing" under Article III, a plaintiff must make three showings: (1) an injury in factmeaning the invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged actionsmeaning that the injury is fairly traceable to the defendants' conduct; and (3) a likelihood that the injury will be redressed by a favorable decisionmeaning that the prospect of obtaining relief from a favorable ruling is not speculative. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). "[T]he party invoking federal jurisdiction bears the burden of establishing these elements." Id. at 561, 112 S. Ct. 2130. Each standing element "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id.
Williams contends that the procedures Tennessee provides for citation hearings are constitutionally inadequate. Yet she has not yet experienced the procedures she challenges, and so, at first blush, it appears difficult to question the district court's conclusion that Williams lacked standing; without having been injured by these procedures, she resembles a mere outsider with a non-justiciable "general grievance." See United States v. Hays, 515 U.S. 737, 743, 115 S. Ct. 2431, 132 L. Ed. 2d 635 (1995) ("[W]e have repeatedly refused to recognize a generalized grievance against allegedly illegal government conduct as sufficient for standing to invoke the federal judicial power."); Herrada v. City of Detroit, 275 F.3d 553, 558 (6th Cir.2001) ("Herrada lacks standing to argue that hearings are not held despite requests by vehicle owners, because she elected to pay the fine rather than request a hearing."). But this case is more complicated than that.
Williams is unlike the plaintiffs who simply failed to invoke the procedures they challenged. Cf. Shavitz v. City of High Point, 270 F. Supp. 2d 702, 710 (M.D.N.C. 2003); Van Harken v. City of Chicago, 906 F. Supp. 1182, 1187 n. 5 (N.D.Ill.1995) (dismissing claims by litigants who "cannot claim the inadequacy of the process that they made no effort to bring into play"). Instead the citation Williams received not only told her that she owed a $50 fine and that she was entitled to a hearing, it appeared to, erroneously, condition her right to a hearing on her up front payment of a $67.50 "court processing fee." In defending this apparent requirement, defendants make much of the fact that it was a mistake and that if Williams had actually requested a hearing, she would not have been charged any fee (at least up front). Appellees' Br. at 26-27. Yet, that alone cannot allay concerns because there is no question that the citation quite clearly stated the fee requirementwhich was higher than the fine itselfthus making requesting a hearing apparently a terrible *621 bargain for those who receive tickets. That the citation was inaccurate must be irrelevant: plaintiffs cannot be required to be clairvoyant and may, justifiably, rely on what their notice in fact says.
Indeed, a notice that offers the ticketed the choice between paying a $50 fine and having to pay $67.50 to challenge it offers no choice at all. Standing requires plaintiffs who bring such claims to have suffered an injury that is fairly traceable to the violation for which they seek redress. Lujan, 504 U.S. at 561, 112 S. Ct. 2130. Here, we can fairly say that few rational persons would pay their parking ticket if challenging it was conditioned on paying a non-refundable fee over and above the cost of the ticket, and this is what the ticket she received appeared to require. The fact that she did not pay at all does not change what the ticket offered her; it remained an irrevocably bad bargain. Imagine, for example, if the ticket was for $50 but the fee was $100,000we would not say there that it was improper not to pay the fee to challenge the procedures. That Williams received an improper processing fee over and above the price of the ticket itself gives her standing enough to get in the courthouse door.
But she gets her no further than that. Because Knoxville has now promised to give her a hearing, her claim, which challenges the specifics of the procedures Knoxville offers for a ticket hearing, is unripe. The ripeness inquiry requires this Court to consider two questions: "(1) [I]s the claim fit for judicial decision in the sense that it arises in a concrete factual context and concerns a dispute that is likely to come to pass? [A]nd, (2) what is the hardship to the parties of withholding court consideration?" Warshak v. United States, 532 F.3d 521, 525-26 (6th Cir.2008) (en banc) (internal citations and quotations omitted). Here, Williams admits that she challenges procedures she has not experienced. As a result, until she gets this first-hand experiencewhich Knoxville has now promisedher challenge would amount to non-justiciable "litigation by hypothetical." Warshak, 532 F.3d at 529. Thus, because Williams did not invoke Tennessee's procedure, any claim regarding their inadequacy is purely speculative and was properly dismissed.
III.
In sum, although the improper processing fee gave Williams standing to get her foot into the door, her claim is nevertheless unripe because Knoxville has now promised to give her a hearing, and until then she cannot point to any procedures that she experienced and wishes to challenges. Thus, we AFFIRM the dismissal of plaintiff's claims.
RYAN, Circuit Judge, concurring.
While I agree with my colleagues that the district court's judgment should be affirmed, I do not agree that the plaintiff had standing to bring this federal lawsuit.
In my judgment, the Honorable Thomas W. Phillips of the district court got it precisely right: Judy Williams had no standing to sue because she failed to show that she personally suffered "an actual or imminent" injury that is both "concrete and particularized" and "not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (internal quotation marks and citations omitted). She suffered no injury at all, not even the cost of a telephone call to the Knoxville City Court to request a hearing. Had she made such a call, she would have been given a hearing date and learned that no processing fee would be assessed.
*622 I would affirm the district court's judgment on Judge Phillips's well written opinion.
NOTES
[1] In full, her Complaint alleged: (1) constitutional and statutory violations under 42 U.S.C. §§ 1983 and 1988; (2) violation of the Tennessee Open Records Act; (3) outrageous conduct or intentional infliction of emotional distress; (4) negligence or gross negligence under the Governmental Tort Liability Act; (5) civil conspiracy; (6) vicarious liability; and (7) violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a(5). Most of these are not pressed on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346210/ | 252 Ga. 123 (1984)
311 S.E.2d 832
GRAHAM
v.
CAVENDER et al.
40769.
Supreme Court of Georgia.
Decided February 10, 1984.
Joe D. Graham, Jr., prose.
Michael J. Bowers, Attorney General, for appellees.
MARSHALL, Presiding Justice.
Joe D. Graham, Jr., an inmate of the Georgia State Prison at Reidsville, filed with this court a prose petition for a writ of mandamus, seeking to invoke the original jurisdiction of this court to require respondents David L. Cavender and James E. Findley, Judges of the Superior Court of Tattnall County, Atlantic Judicial Circuit, and respondent Billie K. Rewis, the clerk of said court, to take certain actions in connection with the petitioner's civil case pending in Tattnall Superior Court.
Specifically, he alleges that the respondents had refused to compel the defendants in his action to answer his complaint, as ordered by respondent Judge Cavender; that the respondents had allowed the defendants to appear in open court in regard to the said case without informing the petitioner prior thereto of the dates and times at which the defendants were to be there; that the respondent judges have not ruled or replied in regard to the petitioner's motion to compel discovery and affidavit for entry of default in his case, nor held a hearing or ruled on the "overall complaint"; and that the respondent clerk had not allowed the petitioner free access to the court, and had denied the petitioner important information concerning his case.
The procedure to be followed before seeking to invoke this court's original jurisdiction (the need for which is extremely rare) is to file such petition in the appropriate court. Being the respondents, the superior-court judges will disqualify, another superior-court judge will be appointed to hear and determine the matter, and the final decision may be appealed to the Supreme Court for review. See Brown v. Johnson, 251 Ga. 436 (306 SE2d 655) (1983); Chancey v. Ellis, 251 Ga. 437 (306 SE2d 656) (1983).
The above is true because of the provisions of the Constitution of 1983. Prior to the effective date of that Constitution, the only sanction provided by law for the failure or refusal of a judge to obey the provisions of Code Ann. § 24-2620 (now OCGA § 15-6-21 (a)) requiring prompt judicial action, was found in Code Ann. § 24-2621 (now OCGA § 15-6-21 (d)), i.e., impeachment and removal from office. Haynes v. State, 159 Ga. App. 34 (4) (283 SE2d 25) (1981), *124 affirmed in Haynes v. State, 249 Ga. 119 (3) (288 SE2d 185) (1982), although reversed on another ground. We recognize the inefficiency of impeachment and mandamus as it previously existed as remedies for judicial inaction. See 5 Ga. State Bar Journal 467 (1969). Historically, our law has been that mandamus could issue only from a superior tribunal to an inferior tribunal, hence a superior-court judge could not mandamus another superior-court judge to compel the taking of judicial action. Shreve v. Pendleton, 129 Ga. 374 (58 S.E. 880) (1907). In an apparent attempt by the legislature and the voters to provide a more efficient remedy, the Constitution of 1983 provides that "only the superior and appellate courts shall have the power to issue process in the nature of mandamus ..." Art. VI, Sec. I, Par. IV (Code Ann. § 2-2704). This provision is merely enabling, not mandatory. This court, in Brown and Chancey, supra, has chosen to maintain its general status as an appellate court by designating the procedure outlined hereinabove to be followed in all but those extremely rare situations in which there is a need for the exercise of this court's original jurisdiction. In our opinion, the present petition does not show such a need.
Accordingly, the petition for the writ of mandamus must be, and is hereby, dismissed.
Petition dismissed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1346218/ | 169 Ga. App. 97 (1983)
311 S.E.2d 523
HAMMOND
v.
THE STATE.
66622.
Court of Appeals of Georgia.
Decided November 29, 1983.
*99 Carl P. Fredericks, for appellant.
Herbert A. Rivers, Solicitor, J. Lynn Rainey, Assistant Solicitor, for appellee.
BANKE, Judge.
The defendant appeals the denial of his motion for new trial following his convictions for reckless driving, speeding, attempting to elude a police officer, and driving under the influence. All of the offenses arose from an early morning chase which culminated in the collision of the defendant's motorcycle with a police car. Held:
1. The defendant's initial contention is that the trial court erred in allowing the jury to hear, over objection, a tape recording of police radio transmissions which took place during the chase. However, the basis for the objection which the defendant asserts on appeal, i.e., that a proper foundation for the tapes was not presented, was not asserted in the trial court. "It is well settled that an objection to the admission of evidence may not be raised for the first time on appeal." McAllister v. State, 231 Ga. 368 (1) (202 SE2d 54) (1973). In any event, as conceded by the defendant, the evidence was cumulative, having been previously presented through the testimony of the officers.
2. After the defendant had testified that he did not ride his motorcycle when he had been drinking, the state was allowed to introduce evidence of a prior alcohol-related motorcycle accident involving the defendant. This evidence was properly admitted for the purpose of impeachment. See OCGA § 24-9-82 (Code Ann. § 38-1802); Lumpkin v. State, 151 Ga. App. 896 (1) (262 SE2d 208) (1979).
3. Before the introduction of any evidence, the trial court charged the jury on the elements of the offenses, as well as presumption of innocence, reasonable doubt, credibility of witnesses, the meaning of intent, and the role and responsibilities of the various parties to the trial. After the close of evidence, but before argument of counsel, the court instructed the jury as to the applicable laws of evidence, redefined the offenses, and charged on the presumptions arising from evidence of a person's blood-alcohol content. Counsel for the parties then made their arguments to the jury, after which the trial court instructed the jury on the form of their verdict, the requirement for unanimity, and their duty to weigh and judge the *98 evidence.
The defendant contends on appeal that the sequence of various instructions was erroneous but, with one exception, does not complain of their content. The defendant did specifically object to the content of the charge on attempting to elude, based on his contention that the evidence failed to show that the offense was committed; however, we find that this charge was authorized by the evidence.
The basis for the contention regarding the sequence of the charges is the following language from OCGA § 5-5-24 (b) (Code Ann. § 70-207): "In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. Copies of requests shall be given to opposing counsel for their consideration prior to the charge of the court. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury but shall instruct the jury after the arguments are completed." (Emphasis supplied.)
Although we do not encourage the procedure followed here, we find no violation of this statute. It is not uncommon for certain charges to be given prior to and during the receipt of evidence. It is also an acceptable practice to instruct the jury concerning their duties before any evidence is received. It is neither error for this to take place, nor error for the trial court, absent a timely request to fail to repeat such instructions. McDaniel v. State, 225 Ga. 695 (171 SE2d 358) (1969); Whitt v. State, 203 Ga. 538 (3) (47 SE2d 580) (1948).
In this case, the instructions given were legally adequate and complete, and there is no contention to the contrary. Since a portion of the charge, at least, was given after argument of counsel, we find sufficient compliance with the statute.
4. The defendant contends that the trial court erred in refusing to receive in evidence a certain hospital record. We do not reach this assigned error because defendant's counsel acquiesced in the court's ruling and withdrew the record, leaving us nothing to review.
5. Finally, the defendant enumerates as error the denial of his motions for directed verdict of acquittal on all four counts. "The trial court's refusal to direct a verdict of acquittal is error only where there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law." Sims v. State, 242 Ga. 256, 257 (248 SE2d 651) (1978). In this case, there was ample evidence to enable a rational trier of fact to find guilt of the offenses beyond a reasonable doubt. Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).
Judgment affirmed. Deen, P. J., and Carley, J., concur specially.
DEEN, Presiding Judge, concurring specially.
Generally I concur with most of what is said in the majority opinion, and specifically agree with Divisions 1, 2, 4 and 5 and in the judgment of conviction. It appears that two different views have been expressed regarding when the trial judge should instruct the jury with respect to Division 3. It might be appropriate to articulate and advance a slightly differing third viewpoint in this important area.
OCGA § 5-5-24 (b) (Code Ann. § 70-207) requires that the main or comprehensive charge to the jury be given after the arguments are completed. The cases cited in the majority opinion and in the other concurring opinion, do not prohibit the trial judge from informing, instructing, or giving helpful explanations to the jury at other times as the case progresses as long as they are in addition to and not in lieu of the comprehensive charge required by statute.
An informative article, "Why the Jury Doesn't Understand the Judge's Instructions," by Charles L. Weltner, now Justice Weltner of the Supreme Court of Georgia, The Judges' Journal, Vol. 17, p. 19, Fall 1978, advances some scholarly suggestions based on an actual juror's convocation input as to how a trial judge may aid and assist the jury. Part of that article based on the juror convocation states: "I hold a dream of having charges on all basic principles of law in a computer, with instantaneous printout. Hence, I can tell the jury that I am going to read the charge to them, but they will have a written copy of it and may refer to it as often as they like during their deliberations." With word processors and computers now available and more in use by courts, this dream may possibly in the future become a reality. As long as the statutory mandate as to the giving of the comprehensive charge is complied with, a trial judge, in my opinion, has implied if not inherent power to provide additional, meaningful explanations as to the duty of the jury relating to applicable legal principles.
CARLEY, Judge, concurring specially.
I agree with the majority that the judgment of conviction should be affirmed. However, I cannot agree with the majority's finding no error in the trial court's charging the jury only on procedural matters after completion of arguments. Although based upon an extensive review of the entire record, I believe that the error in this case is not reversible, it is my opinion that the mandate of OCGA § 5-5-24 (b) *100 (Code Ann. § 70-207) that the court "shall instruct the jury after the arguments are completed" is obligatory upon the trial court, and is not subject to substantial variation, no matter how innovative or well-meaning the trial court may be. McDaniel v. State, 225 Ga. 695 (171 SE2d 358) (1969), cited by the majority, is no analogous to this case. In McDaniel, it appears that, after argument, the trial court did give substantive instructions and that the challenge of the appellant in McDaniel was related only to one specific issue on which the jury had been given previous instructions which the Supreme Court held to be sufficient. In the case sub judice, the trial court gave only procedural instructions following completion of the argument. While I cannot disagree with the trial court's desire to inform the jury as the case progresses on relevant legal principles applicable to the ultimate decision, I think such instructions given at the discretion of the trial judge should be in addition to, and not in lieu of, the comprehensive charge required by the statute. See Evans v. Moore, 131 Ga. App. 169, 171 (4) (205 SE2d 507) (1974). | 01-03-2023 | 10-30-2013 |
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