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https://www.courtlistener.com/api/rest/v3/opinions/2758212/ | 13-4669
Zhen v. Holder
BIA
Morace, IJ
A087 541 277
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of December, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YING FENG ZHEN,
14 Petitioner,
15
16 v. 13-4669
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Stephen J. Flynn, Assistant
28 Director; Lynda A. Do, Attorney,
29 Office of Immigration Litigation,
1 United States Department of Justice,
2 Washington D.C.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Ying Feng Zhen, a native and citizen of China, seeks
8 review of a November 14, 2013, decision of the BIA affirming
9 the April 12, 2012, decision of an Immigration Judge (“IJ”),
10 denying his application for asylum, withholding of removal,
11 and relief pursuant to the Convention Against Torture
12 (“CAT”). In re Ying Feng Zhen, No. A087 541 277 (B.I.A.
13 Nov. 14, 2013), aff’g No. A087 541 277 (Immig. Ct. N.Y. City
14 Apr. 12, 2012). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We have reviewed the decision of the IJ as supplemented
17 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
18 Cir. 2005). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 I. Adverse Credibility Determination
22 We find no error in the agency’s determination that
23 Zhen was not credible as to his family planning claim.
2
1 Asylum applications like Zhen’s are governed by the REAL ID
2 Act of 2005.
3 The record supports the agency’s finding that Zhen was
4 often unresponsive while testifying with regard to his
5 family planning claim. See Majidi v. Gonzales, 430 F.3d 77,
6 81 n.1 (2d Cir. 2005); Jin Shui Qiu v. Ashcroft, 329 F.3d
7 140, 152 (2d Cir. 2003). The IJ and the Government’s
8 attorney repeatedly attempted to elicit more detail from
9 Zhen—either by rephrasing questions or by further probing
10 Zhen’s answers—often to no avail. See Shunfu Li v. Mukasey,
11 529 F.3d 141, 157 (2d Cir. 2008). The agency was not
12 required to credit Zhen’s explanation that unresponsiveness
13 is his normal disposition. See Majidi v. Gonzales, 430 F.3d
14 77, 80-81 (2d Cir. 2005). Having called Zhen’s credibility
15 into question, the agency reasonably relied further on his
16 failure to provide credible corroborating evidence. See
17 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
18 curiam).
19 Given Zhen’s unresponsive testimony and lack of
20 corroborating evidence regarding his family planning claim,
21 the totality of the circumstances supports the agency’s
22 adverse credibility determination. See Xiu Xia Lin v.
3
1 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). That
2 determination is dispositive of asylum, withholding of
3 removal, and CAT relief insofar as they were based on Zhen’s
4 family planning claim. Paul v. Gonzales, 444 F.3d 148, 156-
5 57 (2d Cir. 2006).
6 II. Burden of Proof
7 The agency also reasonably determined that Zhen failed
8 to establish a well-founded fear of persecution based on his
9 practice of Falun Gong. Absent past persecution, an
10 applicant may establish eligibility for asylum by
11 demonstrating a well-founded fear of future persecution,
12 8 C.F.R. § 1208.13(b)(2), which must be both subjectively
13 credible and objectively reasonable, Ramsameachire v.
14 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). To demonstrate
15 such a well-founded fear, an applicant must show either that
16 he would be singled out for persecution or that the country
17 of removal has a pattern or practice of persecuting those
18 similarly situated to him. 8 C.F.R. § 1208.13(b)(2)(iii).
19 Irrespective of the theory, the agency was not compelled to
20 find that Zhen demonstrated a well-founded fear of
21 persecution.
22
4
1 Although Zhen failed to submit any country conditions
2 in support of his application, the IJ took administrative
3 notice of the 2010 State Department Country Reports on Human
4 Rights Practices. That report discussed the mistreatment of
5 certain Falun Gong supporters. However, because Zhen’s
6 practice of Falun Gong is neither public nor high-profile,
7 the agency did not err in finding that he failed to
8 demonstrate a reasonable possibility of being singled out
9 for persecution, or that there is a pattern or practice of
10 persecution against similarly situated practitioners. See
11 Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008)
12 (providing that the agency is not compelled to resolve
13 conflicts in record evidence in the applicant’s favor so
14 long as substantial evidence raises doubts that authorities
15 will single out the applicant for persecution and the agency
16 does not overlook contrary evidence); Santoso v. Holder, 580
17 F.3d 110, 112 & n.1 (2d Cir. 2009) (denying petition where
18 agency considered background materials and rejected
19 pattern-or-practice claim).
20 Because the agency reasonably found that Zhen failed to
21 demonstrate a well-founded fear of persecution on account of
22 his practice of Falun Gong, it did not err in denying
5
1 asylum, withholding of removal, and CAT relief insofar as
2 those claims were based on that practice. See Paul, 444
3 F.3d at 156-57.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
6 | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2758213/ | 14-1235
United States v. Vale
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
8th day of December, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
ROBERT D. SACK,
Circuit Judges.
__________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 14-1235
CHRISTIAN BROS. CONTRACTING CORP., A
CORPORATION,
Defendant,
JASON VALE,
Defendant-Appellant.
__________________________________________
FOR DEFENDANT-APPELLANT: Jason Vale, pro se, Bellerose Manor, NY
FOR APPELLEE: Charles S. Kleinberg and Emily Berger, Assistant
United States Attorneys, for Loretta E. Lynch,
United States Attorney for the Eastern District of
New York, Brooklyn, NY
Appeal from an order of the United States District Court for the Eastern District of New
York (Gleeson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Appellant Jason Vale, proceeding pro se, appeals from a district court’s denial of his
motion under Rule 60(b) of the Federal Rules of Civil Procedure challenging his underlying
conviction and sentence. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We review the denial of a Rule 60(b) motion for abuse of discretion. Harris v. United
States, 367 F.3d 74, 79 (2d Cir. 2004). Here, the district court did not abuse its discretion in
denying Vale’s motion.
Contrary to Vale’s argument, Rule 60(b) is not available to directly challenge the
integrity of an underlying criminal conviction or sentence. When faced with a Rule 60(b) motion
making such a challenge, the district court may either treat it as a successive habeas petition or
deny it as beyond the scope of the rule. Harris, 367 F.3d at 82. The district court thus did not
abuse its discretion in denying Vale’s motion as beyond the scope of Rule 60(b). Furthermore,
any arguable error by the district court in failing to transfer the motion as a successive habeas
petition was harmless, since Vale was not in custody as required by 28 U.S.C. § 2255(a) and
Alleyne v. United States, 133 S. Ct. 2151 (2013), has not been made retroactive to cases on
collateral review. See United States v. Redd, 735 F.3d 88, 92 (2d Cir. 2013) (per curiam).
2
We have considered Vale’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3 | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2264770/ | 879 F.Supp. 7 (1995)
Laura BRADIGAN, Petitioner,
v.
OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 153, AFL-CIO, Respondent.
No. 93-CV-1182.
United States District Court, N.D. New York.
March 14, 1995.
*8 Law Offices of McGraw & Miles, Syracuse, NY (Gary W. Miles, of counsel), for petitioner.
Lilly & Bienstock, Garden City, NY (Thomas J. Lilly, of counsel), for respondent.
SCULLIN, District Judge.
DECISION AND ORDER
This matter is before the court on removal from the Supreme Court of the State of New York, County of Oneida, pursuant to 28 U.S.C. § 1441. The respondent seeks dismissal and sanctions. The petitioner requests that the matter be remanded to the state court.
BACKGROUND
The petitioner, Laura Bradigan, was appointed Director of the Greater Utica Displaced Homemaker Center on April 1, 1991. The Center was a state-funded program supervised and administered by the New York State AFL-CIO through a grant from the New York State Department of Labor. As a condition of the appointment, the petitioner was required to pay dues and become a member of the respondent, Office & Professional Employees International Union, Local 153, AFL-CIO ("the Union").
Problems developed between the petitioner and her employers, namely her direct supervisor, Colleen Gardner ("Gardner"), and the President of New York State AFL-CIO, Edward J. Cleary ("Cleary"). Attempts to get her union representative, Michael Thompson ("Thompson") to address the problem on her behalf were unsuccessful. The petitioner was subsequently informed (on October 7, 1992) that, as a professional employee, the collective bargaining unit and its grievance procedures were not available to her, contrary to earlier assurances by Gardner and Thompson. She was further informed of the Union's position she had been paying union dues voluntarily. On October 9, 1992, while on sick leave, the petitioner learned she had been terminated. The reason given for the termination was that the petitioner's job performance was unsatisfactory.
In December, 1992, the petitioner commenced an Article 78 special proceeding against the Union in the Supreme Court of the State of New York, Oneida County ("state court"), seeking to compel the Union to provide her with the protection and procedures of the collective bargaining unit, and, more specifically, to allow her to file a grievance for wrongful discharge against the New York State AFL-CIO. The special proceeding was removed to this court by the Union in March, 1993. The Union then moved for dismissal pursuant to Fed.R.Civ.P. 12 for insufficiency of process, insufficiency of service of process, and failure to state a cause of action. The petitioner did not challenge the removal, and apparently failed to respond to the Union's motion. The motion was granted and the proceeding dismissed in a brief order by Hon. Neal P. McCurn, District Judge, dated May 20, 1993.[1]
In August, 1993, the petitioner filed an order to show cause in the state court, seeking to have the special proceeding converted to an action at law pursuant to NY CPLR § 103(c), and to have the action proceed as an action in which issue has been joined.[2] The Union promptly removed the matter to this court again, on the ground that the petitioner's claim actually arises under Section 301 of the Labor Management Relations Act (29 U.S.C. § 185). The Union opposes petitioner's application for conversion of the proceeding, and moves for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, as well as dismissal. Petitioner argues that removal was improper because this court does not have original jurisdiction, and requests that the matter be remanded to state court.
DISCUSSION
The procedural context of this matter is, to say the least, unusual. The petitioner did *9 not make a motion for remand the first time this matter was removed to federal court.[3] Nor did she appeal Judge McCurn's decision to dismiss the proceeding, although it was a final order and therefore appealable to the Second Circuit. Allied Air Freight, Inc. v. Pan Am. World Airways, Inc., 393 F.2d 441, 444 (2d Cir.), cert. denied 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968). Instead, after allowing the time for appeal to pass, the petitioner filed this order to show cause in the state court.
Before the state court had an opportunity to hold a hearing on the matter, the Union filed with the federal court a petition for removal pursuant to 28 U.S.C. § 1441, resulting in automatic removal to this court. Perhaps the Union was concerned that a defensive response in state court to the petitioner's order to show cause would constitute a waiver of its right to remove the action in the future if the state court converts the action. It would not. See Hill v. Citicorp, 804 F.Supp. 514, 517 (S.D.N.Y.1992).
Whatever may have motivated the parties to employ these particular tactics, the matter, such as it is, does not belong before this court. "Fundamental to the right of removal is the requirement that there be a case to remove." MHM Sponsors Co. v. Permanent Mission of Pakistan, 672 F.Supp. 752, 753 (S.D.N.Y.1987). Unless the prior proceeding is somehow revived and converted into an action at law, there is no action pending in state court which is removable to federal court.[4]
Having determined that removal was improper, the court must now determine whether the proper course of action is to remand the matter to the state court, or, as the Union urges in its motion, to dismiss the matter because remand would be futile. The court finds that remand, not dismissal, would be the proper disposition of this matter.
Section 1447(c), 28 U.S.C., states, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded" (emphasis added). The Supreme Court in Primate Protection League v. Tulane Educ. Fund, 500 U.S. 72, 86-89, 111 S.Ct. 1700, 1709-10, 114 L.Ed.2d 134 (1991), left open the possibility of a futility exception to this directive where "anticipated barriers to suit in state court [are] sufficiently certain to render a remand futile". Id. at 88, 111 S.Ct. at 1710.
Following Primate Protection League, the Second Circuit pondered the possibility of applying the futility exception in Mignogna v. Sair Aviation, Inc., 937 F.2d 37 (2d Cir. 1991). The court considered that remand might be improper if the state court would be unable to exercise jurisdiction over the claim. The court avoided applying the exception, however, by concluding that it could not be determined with certainty that the federal statute upon which the plaintiff's claim was based would act as a bar to state court jurisdiction in case of a remand. Id. at 43.
In the present matter, the petitioner's attempt to convert the special proceeding is made pursuant to a New York procedural rule. While the Second Circuit has not addressed the particular procedure to be followed in such circumstances, the First Circuit has suggested that the proper course of action in such a situation is to remand the matter to the state court. M.A.I.N. v. Commissioner, Maine Dept. of Human Services, 876 F.2d 1051, 1055-56 (1st Cir.1989).
The plaintiff in M.A.I.N. challenged changes in the rules of a state administrative agency which were enacted to conform with changes in federal regulations implementing a federal statute. The defendant removed it to federal district court because the action arose under federal law. The district court determined, however, that the plaintiff did not have standing, either under federal or *10 state procedural law, and dismissed the action rather than remanding it. The First Circuit (Breyer, J.) vacated the judgment and directed the district court to remand the case to state court because of the possibility, however remote, that the state court would allow the plaintiff to go forward under Maine procedural law. "Maine procedural law is a matter for the Maine state courts to decide." Id.
The situation in the present matter is similar; determination of whether to convert the petitioner's special proceeding is an issue of state procedural law. Although it is unlikely that the state court will do so, this court finds the reasoning in M.A.I.N. to be persuasive, and therefore remands this matter to the Supreme Court of the State of New York, Oneida County.
The Union's Motion for Rule 11 Sanctions
The Union seeks sanctions pursuant to Fed.R.Civ.P. 11 because it was forced to remove this proceeding from state court a second time. Though petitioner's actions may be worthy of sanction, the Union's decision to remove the matter was not the only response available to it. The Union could have appeared at a hearing on the petitioner's order to show cause and made its arguments to the state court.
In any case, this court is not at liberty to impose sanctions upon the petitioner for filing the order to show cause in state court. Rule 11 has no retrospective application to initiatory papers filed in state court, even if the action is subsequently removed to federal court. Mareno v. Jet Aviation of Am., Inc., 970 F.2d 1126, 1128 (2d Cir.1992).
Mareno presents a situation similar to the one here. The plaintiff's wrongful discharge action had been dismissed by the federal court for lack of personal jurisdiction. Following the dismissal, the plaintiff commenced an identical action in New York state court, which the defendants removed to federal court. The district court imposed Rule 11 sanctions upon the plaintiff, which were vacated by the Second Circuit. Despite the obviously frivolous nature of the second action, the Second Circuit held that sanctions were inappropriate because the complaint in the that action was filed in state, not federal, court. Id. at 1128-29. Sanctions are clearly inappropriate here, as well.
For the above reasons, it is hereby
ORDERED, that respondent's motion for Rule 11 sanctions is DENIED, and it is further
ORDERED, that this matter is REMANDED to the Supreme Court of New York, Oneida County, and it is further
ORDERED, that the Clerk mail a certified copy of this order to the clerk of the Supreme Court of the State of New York, Oneida County, pursuant to 28 U.S.C. § 1447(c).
IT IS SO ORDERED.
NOTES
[1] Civil case no. 93-CV-0318.
[2] Index No. 92-03253-R, R.J.I. No. 32-92-1731.
[3] "At the time, petitioner did not realize that grounds for removal were improper, and that in fact there was no `original federal jurisdiction'." Second Memorandum of Law attached to Affidavit of Gary W. Miles, attorney for petitioner (Docket # 7).
[4] As the respondent itself states in its Memorandum of Law, "[t]his court has nothing properly pending before it which it might convert to an action at law, as requested by petitioner's application." (Respondent's Memorandum at 8). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264798/ | 879 F.Supp. 588 (1995)
Judith K. GRUBBS, Plaintiff,
v.
MEDICAL FACILITIES OF AMERICA, INC., Defendant.
Civ. A. No. 94-0029-D.
United States District Court, W.D. Virginia, Danville Division.
January 6, 1995.
Susan E. Perry, Virginia Legal Aid Soc., Inc., Danville, VA, for plaintiff.
Diane Marie Baun, Woods, Rogers & Hazlegrove, P.L.C., Roanoke, VA and Joseph *589 Walton Milam, Jr., Woods, Rogers & Hazelgrove, P.L.C., Danville, VA, for defendant.
MEMORANDUM OPINION
KISER, Chief Judge.
Plaintiff has brought this action under section 504 of the Rehabilitation Act of 1973. Presently, the case is before me on the defendant's motion for summary judgment. After considering the arguments of counsel on that motion, I am of the opinion that it should be granted.
Facts
Plaintiff is 48-years-old and weighs around 330 pounds. She has multiple sclerosis. Defendant Medical Facilities of America ("MFA") operates two nursing homes: Camelot Hall Nursing Home ("Camelot") and Riverside Health Care Center ("Riverside"). Plaintiff alleges MFA denied her admission to Camelot and Riverside because of her weight and medical condition.
The plaintiff's sister, Virl Campbell Guill, is plaintiff's attorney-in-fact. Guill assisted plaintiff in finding a nursing home. She testified Riverside offered a room in early 1993, but plaintiff was not ready to go at that time. Later, in July 1993, Camelot offered a room but because of delays in funding, the space filled with another individual. After plaintiff was admitted to Danville Regional Medical Center ("DRMC") in August 1993, she never completed an application to either facility.[1]
Plaintiff went to DRMC for treatment of the multiple sclerosis. Plaintiff's condition worsened after admission to the hospital. Upon her discharge from DRMC, the plaintiff suffered from numerous medical conditions. Her weight had reached 359 pounds, she had lost sight in one eye, and she was essentially immobile. She was on a number of different medications. As a result of her condition, plaintiff required specialized care, termed "subacute" care.[2] Camelot and Riverside are not equipped nor licensed to provide subacute care. Instead, DRMC called Avante at Lynchburg ("Avante"), which offered subacute care.
She, or someone on her behalf, applied for Medicaid reimbursement for subacute care. This application met the criteria of the Virginia Department of Medical Services ("DMAS") for subacute care, thus entitling plaintiff to Medicaid payment for her care. Plaintiff, or someone on her behalf, accepted the Medicaid reimbursement for subacute care provided at Avante. See Admissions 1-5.
Eventually, plaintiff left Avante and went to Roman Eagle Memorial Home in Danville ("REMH"). Plaintiff did not apply for admission at this time to either Camelot or Riverside. See Admissions 24 & 25.[3] As became clear at oral argument, admission to REMH was obtained via a settlement of threatened litigation after REMH initially denied admission to plaintiff.
The plaintiff submits an affidavit in an attempt to create a genuine issue of material fact. She claims her medical care needs have remained largely the same between the summer of 1993 and the present time. She also claims she did not get all of the extra care that Avante offered. She states that her stay at Avante did not improve her condition that much and that she did not request the physical therapy Avante offered. In summary, plaintiff argues that the best evidence that Camelot and Riverside could have provided care to the plaintiff is that REMH is doing so now.
*590 Summary Judgment Standard
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56(c). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In considering a motion for summary judgment, "the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. The plaintiff is entitled to have the credibility of all his evidence presumed." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.) (citations omitted), cert. denied, ___ U.S. ___, 115 S.Ct. 67, 130 L.Ed.2d 24, and cert. denied, ___ U.S. ___, 115 S.Ct. 68, 130 L.Ed.2d 24 (1994).
Rehabilitation Act Requirements
Section 504 of the Rehabilitation Act provides that:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....
29 U.S.C.A. § 794 (West Supp.1994).[4] In order to be an "otherwise qualified" individual a person must be able to meet all of the program's requirements in spite of the person's handicap. Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). The Davis approach has been tempered in its application, otherwise no reasonable requirement would ever violate section 504. See Pottgen v. Missouri State High School Activities Assoc., 40 F.3d 926, 929 (8th Cir.1994).
In the employment context, the Fourth Circuit has required courts to inquire first whether the person can perform the essential functions of the job in question, and second whether the requirements for the position actually measure the functions. Pandazides v. Virginia Board of Education, 946 F.2d 345, 349 (4th Cir.1991). The Fourth Circuit also requires an evaluation of whether modifications could be made to allow the person to perform the job. Id. In other contexts, courts have held that the plaintiff must show he meets a program's necessary or essential requirements. Pottgen, 40 F.3d at 929. Although an obligation to make a reasonable accommodation exists, an accommodation is not reasonable when it imposes an undue financial hardship on a grantee or requires a fundamental alteration in the nature of the program. School Board of Nassau County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987); Pottgen, 40 F.3d at 930.
Discussion
I agree with the defendant that the plaintiff was not "otherwise qualified" for admission to either the Camelot or Riverside facility.[5] Neither facility offered subacute care. By plaintiff's own admission, this is the type of care she required. The form of that admission is the application for and receipt of Medicaid reimbursement for subacute care. Plaintiff attempts to avoid this central fact by arguing that while she was eligible for Medicaid subacute care payments, she did not require that level of care.
Plaintiff's position is unpersuasive. "Plaintiff in the case sub judice cannot speak out of both sides of her mouth with equal vigor and credibility before this court." Reigel v. Kaiser Foundation Health Plan of N.C., 859 F.Supp. 963, 970 (E.D.N.C.1994). See also August v. Offices Unlimited, Inc., 981 F.2d 576, 581-82 (1st Cir.1992) (holding that statements plaintiff made to obtain disability insurance were binding admissions that he *591 could not perform the essential functions of his job). At the same time plaintiff maintains that any nursing facility could have cared for her, she applied for and accepted Medicaid reimbursement for a type of care that only Avante could offer. She cannot now seek to alter her position in an attempt to show that she was otherwise qualified to enter either of MFA's facilities in Danville.
An essential element in the admissions to Camelot and Riverside is the level of care the patient will require. Plaintiff could not meet this essential requirement and is, therefore, not otherwise qualified. In order for Camelot and Riverside to have admitted plaintiff, they would have had to become subacute care providers. Such an accommodation is clearly not required under Arline, nor would the regulations implementing Title III of the Americans with Disabilities Act require such an accommodation. Title III prohibits discrimination in the provision of, among other things, services. See 42 U.S.C.A. § 12182(a) (West Supp.1994). The comment to the regulation notes that "the rule does not require modifications to the legitimate areas of specialization of service providers." 56 Fed. Reg. 25565 (July 26, 1991).[6]
Plaintiff's attempt at saving her case by reference to REMH's actions is also unpersuasive. Just because REMH now cares for the plaintiff does not mean that in October 1993, Camelot or Riverside could have cared for her. This is especially so in light of the DMAS approval of Medicaid reimbursement, a fact that indicates the degree of care plaintiff required. Indeed, plaintiff's position with respect to REMH is undercut given that it initially denied her admission to its facility and then admitted her, pursuant to an agreement that terminated threatened litigation and resolved pending administrative complaints.
In any event, it is undisputed that the plaintiff did not apply to either of MFA's facilities after discharge from Avante. This is consistent with the plaintiff's view of REMH as her first choice in a nursing facility. Consequently, plaintiff's failure to apply to the facilities after discharge from Avante precludes any finding of discrimination. Cf. Robinson v. Montgomery Ward & Co., 823 F.2d 793, 796 (4th Cir.1987) (holding that because plaintiff did not apply for a job he could not be rejected in a Title VII case), cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 860 (1988).
Conclusion
For the reasons stated above, I find that there is no genuine issue of material fact. On this record, the defendant is entitled to judgment as a matter of law. Therefore, the defendant's motion for summary judgment will be granted.
An appropriate Order will be entered.
ORDER
For the reasons stated in the Memorandum Opinion issued contemporaneously herewith, it is hereby ADJUDGED and ORDERED that the defendant's motion for summary judgment be GRANTED. Any other pending motions are hereby DISMISSED as moot. The Clerk is directed strike this case from the docket of this Court.
The Clerk is further directed to send a certified copy of this order to all counsel of record.
NOTES
[1] See Admissions 17 & 18. The defendant properly served Requests for Admission. Plaintiff failed to respond to these requests. Thus, pursuant to F.R.Civ.P. Rule 36(a), and in view of the failure of plaintiff to seek amendment or withdrawal, the requests are deemed admitted.
[2] Subacute care defines a level of care approximately four times greater than that offered at a regular nursing facility. The best definition of subacute care is in monetary terms. While at the Avante subacute care facility, Medicaid paid over $400 per day for plaintiff's care. Regular nursing home care reimbursement rates run under $100 per day.
[3] The Requests for Admission refer to 1993 as the year plaintiff left Avante. This is incorrect. She left in 1994. This minor typographical error, however, does not alter the effect of the admission, which clearly requested an admission regarding what plaintiff did "after ... [leaving] Avante at Lynchburg" (emphasis added).
[4] There is no dispute in the record that Camelot and Riverside are subject to the requirements of the Rehabilitation Act.
[5] I also have doubts, based on the admissions, that plaintiff ever completed the necessary steps to be considered for admission. However, construing the record in the light most favorable to the plaintiff, I conclude that she did take the necessary steps.
[6] Also persuasive authority is Nichols v. St. Luke Center of Hyde Park, 800 F.Supp. 1564, 1570 (S.D.Ohio 1992) (holding that no Rehabilitation Act violation occurred when nursing home discharged patient with behavioral problems because no reasonable accommodation existed). "If an individual's handicap cannot be accommodated in a way that assures a safe environment when he participates in a program, the program provider is justified in excluding him from participation." Id. In this case, the administrators of MFA's facilities were concerned, among other things, with the staff demands plaintiff would place on the facility. Clearly, if more staff was required to assist plaintiff, less staff would be available to assist other patients, thus potentially threatening those other patients' safety. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264589/ | 744 A.2d 1 (2000)
357 Md. 258
Mark Davon WATKINS
v.
STATE of Maryland.
No. 42, Sept. Term, 1999.
Court of Appeals of Maryland.
January 11, 2000.
Mark Colvin, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Thomas K. Clancy, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.
WILNER, Judge.
The issue presented to us is one of accomplice liability under the felony-murder doctrine. The assumed factual predicate from which that issue arises is that three personsJenkins, Hilliard, and petitioner Watkinsconspired to rob a fourth person, Whittington, that Watkins's role was to serve as a lookout while Jenkins and Hilliard entered Whittington's motel room to commit the robbery, that a struggle ensued between Whittington and Jenkins, leading Jenkins to shoot Whittington, that Jenkins then shot Hilliard, an alleged co-felon, in order to leave no witnesses, and that Watkins and Jenkins then made their escape. Whittington and Hilliard instantly died of their wounds. As we shall see, the assertion that Hilliard was a co-conspirator, *2 and therefore a co-felon, has only the barest foundation.
Watkins was convicted in the Circuit Court for Prince George's County, among other things, of the felony-murder of both Whittington and Hilliard. He does not challenge his conviction for the murder of Whittington but complains that the trial court erred in failing to give a special foreseeability instruction with respect to the felony-murder charge concerning Hilliard. He urges that the deliberate killing of one co-felon by another is not foreseeable and therefore cannot be regarded as being in furtherance of the common scheme. Accordingly, he avers, as a third co-felon who had no direct part in that killing, he cannot be held liable for it under the traditional felony-murder doctrine. He was entitled, he maintains, to have the jury consider whether, from his perspective and as a matter of fact, Jenkins's killing of Hilliard was reasonably foreseeable. The Court of Special Appeals rejected his complaint, Watkins v. State, 125 Md.App. 555, 726 A.2d 795 (1999), and so shall we.
BACKGROUND
On Sunday morning, January 5, 1997, the naked bodies of Whittington and Hilliard were found dead in Room 160 of the Motel-6 motel in Camp Springs, Maryland. Each of them had been shot in the head at close range. Whittington was lying face-down on the floor, between the two beds in the room; Hilliard was face-down on one of the beds, partly covered by a sheet. Whittington was known to have a white Cadillac, which, along with the keys to the car, was missing. Also missing were some gold rings and a watch that Whittington was known to wear. Discovered under one of the beds, however, was $1,156 in cash. Jenkins's fingerprints were found on several items in the room.
Three weeks later, Whittington's car was found in the District of Columbia, about eight to ten blocks from Watkins's home. The car was apparently unlocked, and there was no sign of tampering. Watkins's fingerprints were found on the exterior of the left front door, and that, eventually, led to his arrest in June, 1997.
The evidence indicated that Whittington and Hilliard were homosexual lovers. Whittington had frequently stayed at the Motel-6, and testimony was produced that he and Hilliard had made plans to obtain an apartment together. On the evening of January 4Watkins said around 8:00 or 9:00Hilliard moved his belongings from his mother's home into Whittington's car. Jenkins and Watkins were observed helping Hilliard put his property into the car and getting into the back seat of Whittington's car as it left Hilliard's mother's home. That was the last public sighting of any of the men prior to the murders.
Upon his arrest, Watkins was interviewed by several Prince George's County detectives, and he gave a series of materially inconsistent and progressively incriminating statements, some oral and some written. In his initial, oral statement, Watkins admitted to Detective McCann that he knew both Hilliard and Whittington, but he denied knowing who killed them. He confirmed that Whittington often stayed at the Motel-6 and said that Whittington and Hilliard were planning to get an apartment together. He said that he had stayed with Whittington and Hilliard at that motel on Friday night, January 3, that Whittington had nice diamond rings, and that he was known to "flash money around." Watkins later added that he had helped Hilliard move his things into Whittington's car and that Jenkins, whom he knew, was present as well.
Upon further questioning by Detectives McCann and Canales, Watkins made the first of three written statements. In that statement, he denied any role in the robbery and murders. He said that Jenkins had told him on January 4 that he, Jenkins, intended to rob Whittington, that Jenkins later showed Watkins a watch and rings he had taken from Whittington, and *3 that Jenkins acknowledged killing both Whittington and Hilliard, stating that "him and [Whittington] got in a struggle and he didn't want to leave no witnesses to the murder, um, I mean the robbery." A short time later, Watkins confirmed orally to Detective Miller that Jenkins had committed the murders and had killed Hilliard in order not to leave any witnesses. In that statement, he added that Jenkins had asked him to be a lookout and that he had refused. Watkins said that he had been in Whittington's car about a week before the killings.
After further questioning by Detectives Canales and Miller, Watkins gave a second written statement in which, for the first time, he cast Hilliard as a accomplice to the robbery of Whittington, and not solely a witness. He said that Hilliard had told Jenkins that Whittington carried a lot of money and that Jenkins, Hilliard, and Watkins then conspired to rob Whittington. Jenkins and Hilliard, he said, drove to the motel with Whittington but, during the robbery, Whittington struggled and Jenkins shot him and then Hilliard. Following the shootings, Jenkins took Whittington's rings and watch and left the motel in Whittington's car. Watkins said that, although he served as a lookout, he was not at the motel, but waited at a nearby 7-Eleven store. In this version, he said that Jenkins called him from the motel on the evening of January 4, and stated that he was with Whittington and Hilliard. He asked Watkins to come to a 7-Eleven store near the motel. Watkins and another friend, Matt, obtained a stolen pick-up truck and went to the store to wait for Jenkins, apparently to provide him with transportation. At some point, Jenkins drove by the store in Whittington's Cadillac. Matt dropped Watkins at his (Watkins's) girlfriend's home. Jenkins came by later, showed Watkins the jewelry he had taken from Whittington, and told Watkins that "things got out of hand," that he had killed Whittington and then killed Hilliard to eliminate witnesses. Watkins acknowledged that he knew, when he went to the 7-Eleven, that he was to be the lookout and was to provide a means of escape for Jenkins. He did not anticipate that Jenkins would take Whittington's car. In this statement, Watkins said that he waited at the 7-Eleven store but that he heard gunshots coming from the motel.[1]
Watkins's final written statement was more incriminating, but somewhat ambiguous regarding Hilliard's role. He first said that Jenkins announced a day before the killings his intent to rob both Whittington and Hilliard. In the same statement, however, he said that he, Hilliard, and Jenkins "plotted to rob [Whittington]." Watkins said that Jenkins, Hilliard, Matt, and he went to the motel, that Watkins waited outside the room as a lookout while Jenkins and Hilliard went into the room to rob Whittington, that Watkins was standing right next to the door and could hear what occurred inside, that he heard Jenkins tell Whittington, "give me the money," that Whittington struggled with Jenkins, and that Jenkins "started shooting," that Jenkins came out with a gun, got into Whittington's car, and drove away, and that he then entered the room and saw the victims.
There were, of course, many discrepancies in these various statements, mostly bearing on the degree of Watkins's participation, and there were further discrepancies between the statements and otherwise unchallenged extrinsic evidence.[2] Watkins and Jenkins were seen by an independent witness, with Hilliard and Whittington, in the back of Whittington's Cadillac, heading toward the motel with Hilliard's property.
*4 As noted, Watkins put this trip at around 8:00 or 9:00 on the evening of January 4. Watkins's first statements indicate that he did not go to the motel but was called later by Jenkins to come to the 7-Eleven, although his last statement has the four of them proceeding together to the motel, with Matt following in a pick-up truck. Although he wavered as to whether HilliardWhittington's friend and apparent lover, with whom he was about to cohabitwas part of the conspiracy to rob Whittington, he was consistent throughout that Jenkins had informed him that Hilliard was killed in order to eliminate any witnesses to the robbery or murder of Whittington. The uncontradicted evidence, in other words, was that, whether or not Hilliard was part of the conspiracy to rob Whittington, he was killed because he was a witness.
Apart from that, Watkins's statement that Hilliard was part of the conspiracy, that Hilliard accompanied Jenkins to the motel, and that he entered the room with Jenkins for the purpose of robbing Whittington, is wholly inconsistent with the unchallenged testimony and photographic evidence that Hilliard was stark naked, lying face-down on the bed, when his body was discovered. In order to find that Hilliard was an accomplice in the manner described by Watkins in one of his several inconsistent statements, the jury would have to have found (1) that he accompanied Jenkins to the motel, on the evening of January 4, while naked, or (2) that he stripped and lay down on the bed after entering the room, while Jenkins was supposedly struggling with Whittington, or (3) that Jenkins stripped Hilliard before or after the killings. The suggestion that Hilliard was an accomplice, in other words, at least in the manner asserted by Watkins, borders on the preposterous and hinges solely on one of Watkins's several inconsistent statements that he contended were involuntary in any event.
The issue now presented to us by Watkins arose initially during the course of argument on Watkins's motion for judgment of acquittal. Relying to a large extent on Mumford v. State, 19 Md.App. 640, 313 A.2d 563 (1974), he contended that, as Hilliard was an accomplice in the robbery of Whittington, it was not foreseeable that Jenkins would kill Hilliard and that he could not, therefore, be an accomplice to that murder. Apparently accepting the State's argument that, with Watkins's conflicting statements on the matter, Hilliard's status as an accomplice was in dispute and for the jury to resolve, the court denied the motion. When dealing then with proposed jury instructions, Watkins requested a "Mumford type instruction." He did not present to the court any particular instruction but apparently had in mind the kind of instruction that the Court of Special Appeals held should have been given in Mumfordthat, if the jury were to find that Watkins could not have anticipated that Jenkins would kill Hilliard, it must acquit him of Hilliard's murder. The court refused to so instruct.
The court guided the jury both through instructions from the bench and in the form of a verdict sheet. In its instructions, the court told the jury that the State was proceeding against Watkins on a theory of accomplice liability, that "when two or more persons participate in a criminal offense, each is responsible for the commission of the offense and for any other criminal acts done in furtherance of the commission of the offense or the escape therefrom for each offense committed." (Emphasis added). It emphasized that, in order to establish liability for other crimes committed during the commission of the principal offense, the State must establish that Watkins was an aider and abettor in the principal offense and that "the charged offense was done in furtherance of the commission of the principal offense or the escape therefrom." These general instructions were given more particular focus on the verdict sheet. Question 2, directed at the robbery of Whittington, asked whether Watkins or another participating together *5 and in concert with him robbed Whittington by use of a deadly or dangerous weapon. Question 5, which dealt specifically with the murder of Hilliard and to which no objection was lodged, asked whether Watkins "or an accomplice commit[ted] robbery with a deadly or dangerous weapon (see Question 2) and, if so, did [Watkins] or an accomplice shoot and kill [Hilliard] incidental to or during the course of the robbery." As noted, the jury returned a verdict of guilty in response to that question.
DISCUSSION
As the focus of attention in the trial court (and, to a large extent, in Watkins's brief in this Court), was on Mumford v. State, supra, we shall begin there. Mumford, a 15-year old girl, and four male confederates broke into a farmhouse for the purpose of stealing what was there. While Mumford and one of the boys were rummaging through the unoccupied house, the other two boys went into a garage located about 30 yards away. The owner, a 66-year old woman, returned home and parked her car in the garage while the boys were there. They grabbed and raped her, and, during the rape, one or both of them strangled her to death. There was no evidence that Mumford had any knowledge of what occurred in the garage until informed by the police the next day, but she was nonetheless charged with and convicted of the felony-murder of the victim, the State's theory being that the murder arose from the burglary enterprise in which she was engaged. She asked for, and was denied, an instruction that, if the jury were to find that she could not have expected her companions to commit a rape and that the victim died as a result of a rape, it must find her not guilty of murder.
Relying on a statement from 1 WHARTON, CRIMINAL LAW AND PROCEDURE, § 252, at 547 (Anderson ed.1957) that "[t]here is no criminal liability on the part of the others when the homicide was a fresh and independent product of the mind of one of the confederates, outside of, or foreign to, the common design," the Court of Special Appeals held that, under the felony murder doctrine, there must be a direct causal connection between the homicide and the felony: "Something more than mere coincidence in time and place between the two must be shown; otherwise, the felony-murder rule will not be applicable." Mumford v. State, supra, 19 Md.App. at 644, 313 A.2d at 566. Noting, then, that there was medical evidence that the victim's death ensued from the rape, the court concluded that, had the instructions as to felony murder "included a requirement of causal nexus between the underlying felony and the resultant homicide, the jury could have chosen not to believe that death occurred pursuant to the burglary, but rather from rape, fresh and independent of the common design." Id. For that reason, it reversed the murder conviction against Ms. Mumford.
Mumford was a correct decision, on the facts presented in that case. When there is a legitimate dispute over whether the killing was sufficiently in furtherance of the common enterprise to be chargeable to each of the co-felons, an issue of fact is presented for the jury, under proper instructions, to resolve. The question of when such a legitimate dispute is presented, however, requires some further analysis.
Maryland Code (1996 Repl.Vol.) Article 27, § 410 declares that murder committed in the perpetration of, or attempt to perpetrate, robbery and certain other enumerated felonies constitutes murder in the first degree. Under Maryland common law, a homicide arising in the commission of such a felony is murder "whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice." Jackson v. State, 286 Md. 430, 435, 408 A.2d 711, 715 (1979). That substituted form of malice represents, in a way, a vertical extension *6 of the normal requirement that, for a homicide to constitute murder, the defendant must intend to kill the victim. It has also long been established that, under the felony-murder doctrine, a participating felon is guilty of murder when a homicide has been committed by a co-felon in furtherance of the underlying felony. See Campbell v. State, 293 Md. 438, 442, 444 A.2d 1034, 1037 (1982) and cases cited there. That extension, which invokes the rule of accomplice liability, is, in essence, a horizontal one, making culpable other persons, who did not actually commit the homicide and who may, in fact, have earnestly desired that it not have happened. The more difficult issue has been in defining any limits to these two extensions.
We dealt with that issue in Jackson and in Campbell, the broader discussion being in Campbell. In Jackson, the defendants, foiled in a robbery attempt, forced the two victims, as hostages, into a car and fled recklessly from a high-speed police chase. The tragedy occurred when a police officer, in an attempt to disarm one of the robbers, accidentally discharged his shotgun into the car, killing one of the hostages. The question was whether the defendants could properly be convicted of the felony-murder of that hostage, when neither of them fired the fatal shot. Quoting from 1 WHARTON'S CRIMINAL LAW, § 68 (Anderson ed.1957), we accepted the basic premise that a person is criminally liable only for what he or she has caused and that there must be a causal relationship between the person's act and the harm sustained, but we accepted as well the fact that it "is not essential to the existence of a causal relationship that the ultimate harm which has resulted was foreseen or intended by the actor," that the defendant "personally inflict harm upon the victim," or that the defendant's act "be the sole reason for the realization of the harm which has been sustained by the victim." Jackson, supra, 286 Md. at 441-42, 408 A.2d at 718. Essentially on that basis, we concluded that the victim's death from the lethal shot of the officer was legally attributable to the defendants, who put the victim in the position of grave danger, and that they therefore were properly convicted of felony-murder, although neither of them was the direct, immediate cause of his death. Id. at 443, 408 A.2d at 719.
Campbell also arose from an armed robbery attempt, but there it was one of the robbers who ended up dead, shot to death either by a police officer or the robbery victim. The question was whether the killing of the co-felon by a third party in the course of opposing the robbery or in an attempt to apprehend the perpetrators constitutes first degree murder on the part of the surviving co-felon. We held that, ordinarily, it does not.
We began our analysis by recalling, from Jackson v. State, supra, 286 Md. 430, 435, 408 A.2d 711, 715, the basic felony-murder doctrine: "at common law, homicide arising in the perpetration of, or attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice." Campbell, supra, 293 Md. at 442, 444 A.2d at 1037. We noted then the well-established rule that, under the felony-murder doctrine, "a participating felon is guilty of murder when a homicide has been committed by a co-felon." Id. (emphasis added). We observed, however, that, as to the issue then presented, a majority of the courts that had considered the question had held that, under the felony-murder doctrine, "a participating felon is not guilty of murder when the killing is done by a person other than the participating felon or his co-felons." Id. at 443, 444 A.2d at 1037.
The rationale for that approach was the "agency theory" of felony-murder, a "classic statement" of which appeared in Commonwealth v. Campbell, 89 Mass. 541 (1863). In that case, the Massachusetts court confirmed that "a person engaged in the commission of an unlawful act is legally responsible for all the consequences *7 which may naturally or necessarily flow from it, and that, if he combines and confederates with others to accomplish an illegal purpose, he is liable criminaliter for the acts of each and all who participate with him in the execution of the unlawful design. As they all act in concert for a common object, each is the agent of all the others, and the acts done are therefore the acts of each and all." Id. at 543. The Massachusetts court noted, however, that the agency theory carries with it a limitation, namely, that "the particular act of one of a party for which his associates and confederates are to be held liable must be shown to have been done for the furtherance or in prosecution of the common object and design for which they combined together." Id. Without that limitation, the court observed, "a person might be held responsible for acts which were not the natural or necessary consequences of the enterprise or undertaking in which he was engaged, and which he could not either in fact or in law be deemed to have contemplated or intended." Id.
That limitation was also noted in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), where, applying the agency theory, the Pennsylvania Supreme Court stated:
"The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine. `It is necessary ... to show that the conduct causing death was done in furtherance of the design to commit the felony.'
* * *
[I]n order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking."
Id. at 476 (emphasis in original) (internal citations omitted).
Under that approach, which spreads a broad net of accomplice liability for murder committed by co-felons as a natural or necessary consequence of the joint enterprise, but which limits that vicarious liability to only those kinds of murder, killings committed by other personslaw enforcement officers, victims, or bystandersin an attempt to thwart or oppose the enterprise do not impose criminal liability on the participating felons because they are not ordinarily regarded as being in furtherance of the common object, but rather are in opposition to it.
We observed in Campbell that some courts had used a different theorythe "proximate cause" theoryto impose liability for homicides committed during the enterprise by persons other than the co-felons, but, upon review of the decisions, we determined that the trend had been for the courts to apply the agency theory and limit culpability under the felony-murder doctrine "to lethal acts committed by the felons themselves or their accomplices...." Campbell, supra, 293 Md. at 449, 444 A.2d at 1040. That is the approach we too adopted. An extension of the doctrine in accordance with the "proximate cause" theory, we said, would not further the basic purpose of the doctrine, of "deterring felons from killing by holding them strictly responsible for killings they or their co-felons commit." Id. at 450, 444 A.2d at 1040. Moreover, we concluded that a proximate cause analysis, which was appropriate for purposes of tort liability, had no proper place in prosecutions for criminal homicide; it was too broad and comprehensive. We thus held that, under the felony-murder doctrine, criminal culpability would continue "for all lethal acts committed by a felon or an accomplice acting in furtherance of a common design," but would not be imposed for "lethal acts of nonfelons that are not committed in furtherance of a common design." Id. at 452, 444 A.2d at 1042 (emphasis added).
Accepting this agency theory and the accompanying requirement that, to impose liability on a co-felon under the felony-murder doctrine, the killing have been *8 done in furtherance of the common object, Watkins conjures up a variety of possible explanations for why Jenkins may have killed Hilliard other than as part of the common enterprise, none of which are supported in the least by any evidence in the case, and points then to two cases and a commentator's hypothesis as authority for his view that, if properly instructed, the jury might have found no liability on his part for Hilliard's murder. The cases he relies upon are Rex v. Plummer, Kel. 109, 84 Eng. Rep. 1103 (K.B.1700) and People v. Sobieskoda, 235 N.Y. 411, 139 N.E. 558 (1923), supplemented by a reference to 2 W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 7.5 at 212 (1986).
The principle established in the two cases and illustrated by LaFave and Scott is that, if several persons join together in a felonious enterprise and co-felon A, for a wholly independent purpose of his own, not part of, or in furtherance of, the common scheme and not reasonably anticipated by the remaining co-felons, kills co-felon B, the other co-felons are not liable, under the felony-murder doctrine, for that murder. In Rex v. Plummer, eight people joined together to smuggle wool from England to France. The King's agents, alerted to the scheme, attempted to seize the wool as it was being transported toward the sea. One of the co-felons fired a shot that hit and killed a co-felon, and the issue arose whether the other co-felons were chargeable with that murder. The appellate court considered a number of possibilities. If the shot was deliberately fired at the King's agents and accidentally hit a co-felon, all would be guilty of felony-murder, for shooting at those agents would have been in furtherance of the enterprise. If the shot was fired accidentally, the same result would ensue. Only if the shooter fired the shot at the co-felon out of particular malice directed toward that person would there be no liability, for in that circumstance the murder would not "be done in prosecution of that unlawful act, but it may be upon another account, and those who are in the unlawful act, not knowing of the design that killed the other his companion cannot be guilty of it." Id. at 1105. The killing, said the court, "must be in pursuance of that unlawful act, and not collateral to it." Id.
LaFave and Scott's example, cited by Watkins, is to the same effect. If A, B, and C undertake to rob X and, in the process, B accidentally kills either X or C, A is guilty of felony-murder. If, however, B, angry at C`s inept manner of assisting in the robbery of X, intentionally shoots C, "B`s intentional shooting of C is so far removed from the common plan as not to make A responsible for B`s intent-to-kill murder." LAFAVE & SCOTT, supra, § 7.5 at 212. The reason is that "B`s conduct had nothing to do with furthering the robbery, the only connection between the robbery and the shooting being a mere coincidence of time and place." Id.
People v. Sobieskoda, supra, 235 N.Y. 411, 139 N.E. 558, establishes the same proposition, although, on the particular facts of that case, we may not have arrived at the same result.[3] That case, and later New York cases, have made clear that "[e]ven when the homicide is committed by one of the persons engaged in the underlying felony, if that person acts for a private purpose unrelated to the felony, the remaining members of the group are not liable for the murder." People v. Lewis, 111 Misc.2d 682, 444 N.Y.S.2d 1003, 1005-06 (1981) (citing other cases, including Sobieskoda).
We concur in that view. It necessarily follows from the agency theory of liability adopted by us in Campbell and confirmed in State v. Stouffer, 352 Md. 97, 116, 721 A.2d 207, 216 (1998): there must be some nexus between the killing and the underlying felony. Mere coincidence between the underlying felony and the killing is not enough; the conduct causing death must be in furtherance of the design to commit *9 the felony. Decisions to the contrary, that impose liability under the felony-murder doctrine for any killing committed during the commission of the underlying felony as a felony-murder, arise from either a proximate cause analysis that we have rejected or from a strict liability notion that is equally inconsistent with an agency theory of culpability. See, for example, People v. Cabaltero, 31 Cal.App.2d 52, 87 P.2d 364 (1939), reviewed and criticized in Norval Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U. PA. L. REV. 50, 71-74 (1956).
Acceptance of the view that there must be some connection, beyond mere coincidence of time and place, between the joint undertaking and the killing does not assist Watkins in this case. As we have indicated, apart from the exceedingly tenuous evidence that Hillard was, indeed, a co-felon, the uncontradicted evidence, from Watkins's own lips, was that Hilliard, whether or not a co-felon, was killed because he was a witness. The killing of a witness, for the purpose of eliminating the person as a witness, is necessarily in furtherance of the common enterprise, whether the victim is the victim of the underlying felony, an innocent bystander, or a co-felon whom the actor desires to eliminate as a potential witness. Actual foreseeability is not the test; there is a range of conduct that the law regards as implicitly foreseeable, whether or not the prospect of that conduct was ever actually anticipated. An accidental killing may not be actually anticipated by all of the co-felons; resistance by the victim or by others and the killing of a person who resists may not be actually anticipated by all of the co-felons. Yet those are consequences that "naturally or necessarily flow" from the felonious enterprise, and vicarious liability has long existed in those situations, whether or not the particular co-felon actually anticipated what occurred. The same is true with respect to the killing of witnesses, as witnesses.
The instructions given in this case fairly and adequately focused the jury on what the State needed to provethat the killing of Hilliard was "in furtherance" of the robbery of Whittington. That is all that it needed to find in order to convict Watkins of the felony-murder of Hilliard.
JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
NOTES
[1] Detective Canales later testified that the 7-Eleven store was about a mile away from the motel and that no reports had been received of hearing any gunshots that night.
[2] Watkins presented no defense, other than to challenge some of the State's evidence. One of his principal arguments was that the statements he gave were involuntary and should not be credited. That issue is not before us.
[3] Sobieskoda was a split decision. Judge Cardozo and Judge Crane dissented. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264611/ | 744 A.2d 713 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Brian THOMAS, Appellant.
Supreme Court of Pennsylvania.
Submitted August 5, 1997.
Decided January 18, 2000.
Reargument Denied March 3, 2000.
Steven Morley, Robert Brett Dunham, Philadelphia, for Brian Thomas.
*714 Catherine Marshall, Philadelphia, Robert A. Graci, Harrisburg, for Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION OF THE COURT
CASTILLE, Justice.
Appellant appeals from the trial court's denial of his petition under the Post Conviction Relief Act ("PCRA") claiming that the PCRA court erred in denying the appellant's petition without a hearing.[1] Because we find that the PCRA court acted within its discretion by denying appellant's petition on the basis of the record before it, we affirm.
In February of 1986, a jury found appellant guilty of murder in the first degree, burglary, involuntary deviate sexual intercourse and rape. Following a sentencing hearing, the same jury sentenced appellant to death. On June 17, 1989, this Court affirmed the sentence of death on direct appeal.[2]
As a threshold issue, appellant argues that the PCRA court erred in denying his petition without first conducting an evidentiary hearing. Rule 1509 of the Rules of Criminal Procedure, governing PCRA petitions in capital cases, grants authority to the PCRA court, after a review of the petition, answer and other matters of record, to determine whether an evidentiary hearing is required. Here, appellant requested an evidentiary hearing on the issues raised in his PCRA petition, but the PCRA court determined that a decision could be made from the existing record and denied appellant's hearing request. Our review of the PCRA petition and the record before the PCRA court indicates that the PCRA court acted within its discretion in refusing appellant's request for an evidentiary hearing.
In order to be eligible for relief under the PCRA, appellant must show, inter alia, that his claims have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). A number of appellant's claims have previously been decided by this Court on direct appeal; therefore, those claims will not be reviewed.[3] The Commonwealth argues that the remainder of appellant's issues are waived because they were not raised on direct appeal. We agree with the Commonwealth that the majority of appellant's claims are waived.
The scope of the PCRA is set forth in 42 Pa.C.S. § 9542:
This subchapter is not intended to limit the availability of remedies in a trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases. (emphasis added)
The clear import of this section is that the legislature intended that the PCRA does *715 not resuscitate waived claims and that the PCRA's waiver provisions apply to capital cases.
The version of the PCRA in effect at the time appellant filed his petition provided, in pertinent part:
(a) General rule.To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
* * *
(3) That the allegation of error had not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.
42 Pa.C.S. § 9543(a)(3). Thus, appellant must demonstrate, by a preponderance of the evidence, that his claims of error have not been waived, or, if waived, that they meet the requirements of either subsection (ii) or (iii) of § 9543. Failing such a showing, his claims cannot be reviewed under the PCRA.
This Court has held that the "relaxed waiver" rule applicable to direct appeals of capital cases does not apply to appeals from post-conviction proceedings in capital cases. Commonwealth v. Pursell, 555 Pa. 233, 252-54, 724 A.2d 293, 303 (1999). For the purposes of the PCRA in effect at the time of appellant's petition, an issue is waived "if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter." 42 Pa.C.S. § 9544(b).
Here, appellant raises twenty-three separate issues in this post-conviction proceeding. Five of those issues were previously litigated on direct appeal. See footnote 3, supra. The remainder raise questions of trial court error, prosecutorial misconduct and ineffectiveness of counsel. The majority of the claims related to trial court error and prosecutorial misconduct are waived.[4] 42 Pa.C.S. § 9544(b).
*716 Thus, we will consider only the claims of ineffectiveness of counsel that were not previously litigated.
Appellant's first ineffectiveness claim is that his counsel was ineffective for failing to object to the trial court's penalty phase instructions that, appellant alleges, violated Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Specifically, appellant contends that the trial court's instructions failed to inform the jury that it is not required that mitigating circumstances be unanimously found and that the instructions created the misimpression that mitigating circumstances must be found unanimously. The trial court instructed the jury that "your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstance or if you unanimously find one or more aggravating circumstances which outweigh any mitigating circumstances." N.T. 2/5/86 at 66. First, Mills was not decided at the time of appellant's 1986 trial; thus, his trial counsel cannot be ineffective for failing to raise an objection to the jury charge based upon Mills, and his appellate counsel was not ineffective for failing to raise this meritless claim of ineffectiveness of trial counsel on direct appeal. Second, the trial court's instruction to the jury directly tracks the statutory language, and this Court has upheld an identical instruction in Commonwealth v. Banks, 540 Pa. 143, 150, 656 A.2d 467, 470 (1995). Therefore, this claim lacks merit.
Appellant's second claim of ineffectiveness that counsel was ineffective in trial preparation, in litigating pre-trial motions and in failing to conduct a crime-scene investigation is completely undeveloped. Appellant cites not one single action counsel should have taken that he failed to take, nor does appellant point to a single shred of evidence that his counsel might have turned up had he conducted an independent crime-scene investigation. Appellant also fails to demonstrate that a different result might have obtained had counsel conducted his trial preparation differently or that he was prejudiced thereby. This court has repeatedly held that we will not consider ineffectiveness claims in a vacuum. Commonwealth v. Morris, 546 Pa. 296, 312, 684 A.2d 1037, 1045 (1996). Thus, we will not find counsel ineffective here where appellant fails to allege with specificity sufficient facts in support of his claim.
Appellant next claims that his trial counsel was ineffective for failing to cross-examine certain prosecution witnesses adequately, for failing to call additional defense witnesses and for failing to object to the admission of a hatchet into evidence.[5] Appellant argues that his trial counsel did not adequately cross-examine two witnesses, St. Clair Holman and Janet Lomax, whose testimony, he contends, would have shown that the victim and her boyfriend argued shortly before the murder, thereby creating the possible inference *717 that the victim's boyfriend actually committed the murder.
The record belies this claim. Appellant's trial counsel cross-examined Holman, who stated that the victim and her boyfriend had never argued in his presence. N.T. 2/3/86 at 35-38, 46, 50. Trial counsel did not cross-examine Lomax for the simple reason that trial counsel had called Lomax as a witness on direct. Furthermore, Lomax's testimony does not support the theory that the victim's boyfriend is actually the murderer. N.T. 2/4/86 at 118-26. Trial counsel cannot be found ineffective where the testimony elicited from witnesses did not support the theory of the crime espoused by appellant.
Appellant argues that his counsel should have called a police sergeant who allegedly wrote in a report that Holman told the officer that he heard the victim and her boyfriend arguing and that the victim's boyfriend did not seem very upset by her death. Holman's testimony at trial was that the victim and her boyfriend had never argued in his presence. The level of emotion shown by the boyfriend on the night of the murder is not proof that he committed the crime. Appellant has failed to demonstrate how this officer's testimony might have affected the outcome of the trial given that both Holman and the boyfriend testified and were cross-examined on these very issues.
Next, appellant claims that his counsel failed to call certain witnesses who would have testified to seeing the victim in a bar prior to the murder with two men, one of whom the witnesses identified as appellant. The witnesses supposedly would have given contradictory descriptions of the two men who were with the victim, thereby diluting the identification of appellant. Trial counsel, instead of calling these witnesses, made the strategic decision to call only one witness who testified that he saw the victim in the bar with her boyfriend. This testimony was consistent with appellant's theory that the boyfriend actually murdered the victim. Therefore, it was a reasonable strategy by counsel not to call the witnesses and was therefore not ineffective assistance.
Finally, appellant claims that the record before this Court is inadequate to determine the prejudicial nature of crime scene photographs introduced into evidence at trial and seeks a remand to determine the location of the photographs so that the claim can be fairly evaluated.[6] Appellant's counsel, however, points out the frivolity of this claim by conceding that the photographs are, indeed, a part of the record before this Court and that the photographs were made available to appellant's counsel. Thus, this claim is totally disingenuous.
Accordingly, because the issues raised by appellant have been previously litigated, waived, or are meritless, the PCRA court acted within its discretion by denying appellant a hearing, and we affirm the order of the PCRA court denying relief to appellant.
NOTES
[1] 42 Pa.C.S. § 9541 et seq.
[2] The facts of this case are set forth in extensive detail in this Court's opinion on direct appeal and will not be repeated here. See Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699 (1989).
[3] On direct appeal, this Court rejected appellant's claims that his trial counsel was ineffective for failing to present mitigation evidence in the penalty phase of his trial (Thomas, 522 Pa. at 278-79, 561 A.2d at 710)(appellant raises this issue twice in this appeal, the second time claiming counsel was ineffective per se), that the trial court's instruction on the aggravating circumstance of torture was inappropriate (Id. at 277, 561 A.2d at 709), and that his 1984 conviction for criminal trespass did not involve the use or threat of violence (Id. at 276, 561 A.2d at 708-09). In addition, appellant revisits the claim that his trial counsel was ineffective for failing to present mitigating evidence under the guise of a claim that he was denied assistance of counsel in the penalty phase because his counsel did not present mitigating evidence. The issue of the presentation of mitigating evidence, in all its possible manifestations, was determined by this Court's previous decision.
[4] Steven Morley, appellant's present counsel, filed the amended PCRA petition that is the subject of this appeal. Attorneys with the Center for Legal Education, Advocacy and Defense Assistance (CLEADA) have joined Morley on the briefs to this Court; however, Morley, not CLEADA, remains counsel of record for appellant. The following claims of trial court error and prosecutorial misconduct are waived because they were not raised in appellant's amended PCRA petition filed by Morley:
(1) the trial court erred in failing to conduct, sua sponte, an investigation into appellant's competence to waive his right to present mitigating evidence;
(2) appellant's conviction must be reversed because his counsel may not have received a copy of the presentence report (which found appellant competent to be sentenced) prior to his sentence;
(3) the verdict and sentence are unreliable due to an allegedly hostile relationship between a juror and appellant's wife;
(4) the jury misunderstood the meaning of life in prison without the possibility of parole;
(5) the trial court's reasonable doubt instruction was defective;
(6) the trial court failed to instruct the jury on reasonable doubt at the penalty phase;
(7) the trial court's penalty phase instruction on the preponderance of the evidence was defective;
(8) the prosecutor engaged in misconduct when he stated that a second sentencing stage might follow the guilt phase and when he allegedly threatened appellant's wife in order to keep her from testifying; and
(9) the cumulative effect of these errors warrants a new trial.
In addition, the following claims were raised by appellant in his amended PCRA petition as claims of ineffectiveness of trial counsel but not appellate counsel and are therefore waived:
(1) appellant was not competent to waive his right to present mitigating evidence;
(2) the prosecution's "bite mark" testimony should have been precluded;
(3) the jury was not life qualified; and
(4) claims of prosecutorial misconduct that the prosecutor referred during his guilt-phase closing argument to his experience as a prosecutor; and during his penalty phase closing, referred again to his experience and to appellant's future dangerousness.
Finally, appellant's claim that the prosecutor committed misconduct when he referred to the pain and suffering of the victim is waived because it is not argued as an ineffectiveness of counsel claim.
[5] On direct appeal, we found that the hatchet in question was admissible as a possible weapon used during the murder. Commonwealth v. Thomas, 522 Pa. at 273-74, 561 A.2d at 707. Counsel cannot be ineffective for failing to object to the introduction of relevant and admissible evidence. Therefore, his claim of ineffectiveness fails.
[6] In his amended PCRA petition, this claim is raised as a claim of ineffectiveness of trial and appellate counsel, arguing that the photographs were unduly prejudicial. The PCRA court found that the photographs were admitted after appellant's trial counsel cross-examined a detective about the state of the victim's body and that they would have been admissible by the prosecution on direct because they were relevant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350051/ | 319 S.E.2d 304 (1984)
WAYNICK CONSTRUCTION, INC.
v.
Marion Franklin YORK and wife, Harris Wylie York.
No. 8319SC736.
Court of Appeals of North Carolina.
September 4, 1984.
*305 Wilson & Kastner by James L. Wilson, Liberty, for defendants-appellants.
Douglas, Ravenel, Hardy, Crihfield & Lung by John W. Hardy, Greensboro, for plaintiff-appellee.
JOHNSON, Judge.
I
Plaintiff contends that defendants have not excepted to the findings of fact of the court, but only to the entry of the order, and that therefore defendants' assignments of error are not properly before this Court. See App.R. 10(b); 1 Strong's N.C. Index 3d Appeal and Error § 28 (1976). It is well established that defendants' broadside exception presents on appeal the question of whether the findings, established by the failure to make specific exceptions, support the conclusions of law and in turn the judgment. Anderson Chevrolet/Olds v. Higgins, 57 N.C.App. 650, 292 S.E.2d 159 (1982). It also presents conclusions of law denominated as findings of fact. Clark v. Richardson, 24 N.C.App. 556, 211 S.E.2d 530 (1975) (reviewing unexcepted "findings").
II
In the present case the court sat as finder of fact and entered written judgment. Its duties as trier of fact were to "find the facts specially and state separately its conclusions of law thereon." G.S. 1A-1, Rule 52(a)(1). The requirements of *306 Rule 52 are not simply rules of "empty ritual." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). The purpose of detailed findings of specific facts is to allow a reviewing court to determine from the record whether the judgment and the underlying legal conclusions represent a correct application of the law. Id. The purpose for requiring conclusions of law to be stated separately is to enable the reviewing court to determine what law the court applied to the facts found. Hinson v. Jefferson, 287 N.C. 422, 429, 215 S.E.2d 102, 107 (1975).
The trial court failed to make any conclusions of law in the present case. Our ensuing difficulty in determining the theory of law applied is compounded by the paucity of relevant findings of fact. Other than detailing the procedural facts that plaintiff had filed a claim of lien and that the parties had stipulated that the judgment might be entered out of district and out of term, the court made only three findings of fact. Two of these simply recited the terms of the contract, the payments actually made thereunder and the outstanding balance which defendants refused to pay. None of these findings resolved any matters in dispute.
The third and critical finding was simply that plaintiff had "substantially complied" with the contract. This is the only finding in the judgment resolving any matter in dispute. Even when we accept this finding as established, it does not provide a basis for conclusively resolving all the issues of the case.
III
Under the law of construction contracts, a party is entitled to receive what he contracted for or its equivalent. Robbins v. Trading Post, 251 N.C. 663, 666, 111 S.E.2d 884, 887 (1960). "Substantial compliance" is not the same as full compliance. Moss v. Knitting Mills, 190 N.C. 644, 648, 130 S.E. 635, 637 (1925). Substantial compliance requires only ordinary care and skill, and damages for the repair of defects may still be recovered. Id. More recently, our Supreme Court has held that performance of a construction contract in substantial accordance with the specifications does not preclude an action for defects not readily apparent upon completion, such as those contested here. Realty Co. v. Batson, 256 N.C. 298, 123 S.E.2d 744 (1962); see Restatement (Second) of Contracts § 246 Comment d, illustration 6 (1981).
Defendants had counterclaimed for such damages but that counterclaim was involuntarily dismissed by the court. If that ruling was correct, no claim for damages lay before the court at the time it entered the final judgment and we might affirm. Here again, however, the court failed to make any findings of fact despite the clear mandate of the Rules of Civil Procedure. G.S. 1A-1, Rule 41(b); G.S. 1A-1, Rule 52; see Graphics, Inc. v. Hamby, 48 N.C.App. 82, 89, 268 S.E.2d 567, 571-72 (1980) (failure is reversible error). The only reason apparent on the record for the dismissal is that defendants failed to show any amount of damages. This Court has recently reiterated the applicable rules governing damages in cases such as this:
"The fundamental principle which underlies the decisions regarding the measure of damages for defects or omissions in the performance of a building or construction contract is that a party is entitled to have what he contracts for or its equivalent. What the equivalent is depends upon the circumstances of the case. In a majority of jurisdictions, where the defects are such that they may be remedied without the destruction of any substantial part of the benefit which the owner's property has received by reason of the contractor's work, the equivalent to which the owner is entitled is the cost of making the work conform to the contract. But where, in order to conform the work to the contract requirements, a substantial part of what has been done must be undone, and the contractor has acted in good faith, or the owner has taken possession, the latter is not permitted to recover the cost of making *307 the change, but may recover the difference in value." [Citations omitted.] The difference referred to is the difference between the value of the house contracted for and the value of the house builtthe values to be determined as of the date of tender or delivery of possession to owner.
LaGasse v. Gardner, 60 N.C.App. 165, 168-69, 298 S.E.2d 393, 396 (1982), quoting Robbins v. Trading Post, supra, 251 N.C. at 666, 111 S.E.2d at 887.
It is unclear which of these theories the court applied in dismissing the counterclaim. Plaintiff contends that all the evidence showed that the existing floors would first have to be destroyed to achieve compliance, and that defendants put on no evidence as to relative value, and that dismissal was accordingly proper. Defendants contend that their evidence concerned repairs to bring the work into conformity, and that no destruction was required; since their evidence as to the cost of repair was excluded, to which they also assign error, they could not show damages. If the evidence was improperly excluded, they argue, the dismissal was also improper. Nothing in the evidence affirmatively indicates that existing work need be destroyed or substantially undone to achieve conformity. We held in LaGasse that in cases such as this the court must specifically rule which theory applies. Again, the court erred failing to make such findings.
IV
The principal reason that defendants did not present evidence of damages supporting their theory is because the court excluded such evidence. Defendants attempted to put on "cost of repair" testimony through opinion testimony of an architect, but it was excluded by the court on hearsay grounds, i.e., that the architect did not have personal knowledge of the dimensions of the house and therefore could not estimate the cost of repair.
A
We note first that defendants failed to offer the architect to the court as an expert. Under the circumstances of the case, however, the lack of a formal offer does not prevent review. The architect's qualifications were presented at length and defendants' intent to offer him as an expert was clear. Defendants repeatedly asked for the architect's opinions on technical issues and asked him to describe his calculations. The adverse rulings of the court were expressly stated with the grounds therefor. On identical facts our Supreme Court has held that a formal tender is not an essential prerequisite to eliciting an opinion. Dickens v. Everhart, 284 N.C. 95, 103, 199 S.E.2d 440, 444 (1973) (to require formal offer "exalts form over substance").
B
The facts upon which the architect intended to rely in answering the question were already in evidence through defendants' other technical witness. As such, personal knowledge was not a prerequisite for him to give an opinion. State v. Grady, 38 N.C.App. 152, 247 S.E.2d 624 (1982); see 1 H. Brandis, N.C. Evidence § 137 at 546 (1982); G.S. § 8C-1, Rule 703 (Supp.1983). Accordingly, the court erred in excluding the architect's opinion as to cost of repair, especially in view of the fact that the trial took place before the court, not a jury. See 1 H. Brandis, N.C. Evidence § 4A (1982) (rules more relaxed).
C
Nevertheless, argues plaintiff, the error is not properly before this Court since defendants did not put an offer of proof into the record. Ordinarily, such an offer is necessary to appellate review of rulings excluding evidence; however, it is not absolutely essential if the record plainly discloses the significance of the evidence. Currence v. Hardin, 296 N.C. 95, 249 S.E.2d 387 (1978). Here it is clear that the significance of the excluded evidence was only the dollar amount of the architect's estimate. The architect did present testimony, although subsequently stricken, *308 that removal of some studs to effect the repair would cost $250. This appears to be as much a part of the whole record as excluded evidence offered outside the record of testimony. Furthermore, we can safely say that the remaining work which the architect testified was necessary would not be done for free. It is well established that once breach of a contract has been shown, the claimant is entitled to at least nominal damages. See 3 Strong's N.C. Index 3d Contracts § 29 (1976). The only significance of the excluded testimony would be to increase the dollar amount of alleged damages. It would not affect basic questions of liability. Compare Currence v. Hardin, supra (no offer of proof of medical diagnosis of plaintiff, not reviewable). Accordingly, we hold that the failure to make a formal offer does not preclude appellate review in this case, and we again find error in the exclusion of the evidence.
V
Having found numerous errors, the proper disposition of the case now must be determined. Ordinarily, where the court fails to make some findings necessary to support the judgment, we may remand for further proceedings to supply the few deficiencies. See Henderson v. Henderson, 307 N.C. 401, 409-10, 298 S.E.2d 345, 351 (1983) (remand for findings solely on willfulness). On the other hand, the appellate courts may also order a new trial where findings are clearly inadequate, as we believe they are here. Quick v. Quick, 305 N.C. 446, 458-59, 290 S.E.2d 653, 661-62 (1982). The failure of the court to make any findings in dismissing the counterclaim reinforces our conclusion, Graphics, Inc. v. Hamby, supra (new trial), as do the erroneous evidentiary rulings. Accordingly, the judgment is vacated and the cause remanded for a new trial.
New trial.
WELLS and BECTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2758214/ | 13‐4195
Guan v. Holder
BIA
Zagzoug, IJ
A087 434 525
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 8th day of December, two thousand
fourteen.
PRESENT:
JOSÉ A. CABRANES,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
XUE ZHUI GUAN,
Petitioner,
v. 13‐4195
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
1
Respondent.
_____________________________________
FOR PETITIONER: Ai Tong, Law Office of Ai Tong, Esq., New York,
NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General;
Anthony W. Norwood, Senior Litigation Counsel;
Wendy Benner‐Leόn, Trial Attorney, Office of
Immigration Litigation, United States Department
of Justice, Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Xue Zhui Guan, a native and citizen of China, seeks review of an October
23, 2013 decision of the BIA, affirming the January 24, 2012 decision of an
Immigration Judge (“IJ”), which denied his application for asylum, withholding
of removal, and relief pursuant to the Convention Against Torture (“CAT”). We
assume the parties’ familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have reviewed the IJ’s and BIA’s
decisions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec.,
448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well
2
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009).
For asylum applications like Guan’s, governed by the REAL ID Act of
2005, the agency may, “[c]onsidering the totality of the circumstances,” base a
credibility determination on an asylum applicant’s demeanor, the plausibility of
his account, and inconsistencies in his statements and other record evidence,
“without regard to whether” they go “to the heart of the applicant’s claim.” 8
U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain that no reasonable fact‐
finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
Here, substantial evidence supports the agency’s adverse credibility
determination. The agency reasonably relied in part on Guan’s demeanor,
noting that his testimony was delivered with a blank stare and was at times
unresponsive. See Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir. 2007) (per
curiam). The agency’s demeanor finding and the overall credibility
determination were supported by record inconsistencies related to the number
and identity of the students who attend church classes with Guan. See Li Hua Lin
3
v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006). Guan testified that he had
attended a weekly baptism class at his New York church for approximately two
years and that the class consisted of ten to twenty different students each week.
But his priest testified that the class consisted of the same forty to fifty students
each week. Guan also testified that the class instructor was female, while his
pastor stated that the instructor was male. While the IJ did not question Guan
about some of these inconsistencies, the inconsistencies were obvious, and Guan
could have explained them when he was recalled to the stand following his
priest’s testimony. See Ming Shi Xue v. BIA, 439 F.3d 111, 122 & n.13 (2d Cir.
2006).
The agency also reasonably found it implausible that Guan was unable to
identify a single member of his church other than his priest and his class
instructor, particularly given his priest’s testimony that Guan was friendly and
well‐known in the church community and that member names were called out at
the beginning of Guan’s weekly church classes. See Wensheng Yan v. Mukasey,
509 F.3d 63, 66‐67 (2d Cir. 2007). The IJ was not compelled to credit Guan’s
explanation that he rarely spoke to other members because it conflicted with his
priest’s testimony. See Majidi v. Gonzales, 430 F.3d 77, 80‐81 (2d Cir. 2005).
4
Having questioned Guan’s credibility, the agency reasonably relied further
on his failure to provide certain credible evidence corroborating his claim or
rehabilitating his testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
2007) (per curiam). Given the demeanor, inconsistency, implausibility, and
corroboration findings, the totality of the circumstances supports the agency’s
adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 167. That
determination is dispositive of asylum, withholding of removal, and CAT as
those claims are based on the same factual predicate. Paul v. Gonzales, 444 F.3d
148, 156‐57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. As we have
completed our review, any stay of removal that the Court previously granted in
this petition is VACATED, and any pending motion for a stay of removal in this
petition is DISMISSED as moot. Any pending request for oral argument in this
petition is DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5 | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2758215/ | 13-1676
Gertskis v. EEOC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
8th day of December, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
Circuit Judge,
VICTOR MARRERO,*
District Judge.
________________________________________________
POLINA GERTSKIS,
Plaintiff-Appellant,
v. No. 13-1676
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
(EEOC), KEVIN BERRY, JOHN DOUGLASS, STEPHANIE
GARNER, UNITED STATES DEPARTMENT OF JUSTICE
(DOJ), KAREN FERGUSON, NELSON HERMILLA, NEW
YORK CITY DEPARTMENT OF HEALTH & MENTAL
HYGIENE, PETER BACKMAN, ROSE TESSLER,
DOROTHY WRIGHT, THOMAS F. FARLEY, as
Commissioner, AMERICAN FEDERATION OF STATE,
*
Judge Victor Marrero, of the United States District Court for the Southern District of
New York, sitting by designation.
COUNTY & MUNICIPAL EMPLOYEES, AFL-CIO,
DISTRICT COUNCIL 37 (DC37) & LOCAL 375,
CIVIL SERVICE TECHNICAL GUILD (LOCAL 375),
Defendants-Appellees.**
________________________________________________
FOR PLAINTIFF-APPELLANT: POLINA GERTSKIS, pro se, Brooklyn, NY
FOR DEFENDANTS-APPELLEES
EEOC, BERRY, DOUGLASS,
GARNER, DOJ, FERGUSON,
HERMILLA: ANDREW E. KRAUSE (Benjamin H. Torrance, on the
brief), Assistant United States Attorneys, for Preet
Bharara, United States Attorney for the Southern
District of New York, New York, NY
FOR DEFENDANTS-APPELLEES
DOHMH, BACKMAN, TESSLER,
WRIGHT, FARLEY: DIANA LAWLESS (Larry A. Sonnenshein, on the
brief), for Michael Cardozo, Corporation Counsel
of the City of New York, New York, NY
FOR DEFENDANTS-APPELLEES
DC37, LOCAL 375: GREGORY GLICKMAN, Hinshaw & Culbertson LLP,
New York, NY
Appeal from a judgment of the United States District Court for the Southern District of
New York (Furman, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and orders of the district court be and hereby are AFFIRMED.
Plaintiff-Appellant Polina Gertskis appeals from the district court’s dismissal of her
employment discrimination complaint, grant of the EEOC’s motion for summary judgment on
her Freedom of Information Act (“FOIA”) claim, denial of her motion to compel discovery, and
**
The Clerk of Court is directed to amend the caption.
2
denial of several of her motions for reconsideration.*** We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo a district court decision dismissing a complaint pursuant to Rules
12(b)(1) or (6) of the Federal Rules of Civil Procedure. See Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (Rule 12(b)(1)); Litwin v. Blackstone Grp., L.P.,
634 F.3d 706, 715 (2d Cir. 2011) (Rule 12(b)(6)). In each instance, we “accept[] all factual
allegations as true, and draw[] all reasonable inferences in favor of the plaintiff.” Litwin, 634
F.3d at 715; see also Triestman, 470 F.3d at 474. Dismissal of a case under Rule 12(b)(1) is
appropriate “when the district court lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion,
the complaint must plead “enough facts to state a claim to relief that is plausible on its face,”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal,
***
Since 2007, Gertskis has filed three actions relating to her employment with and
termination from the New York City Department of Health and Mental Hygiene (“DOHMH”),
each raising similar claims. In the first case, filed while Gertskis was on a leave of absence from
her job as a chemist with the DOHMH, the district court granted summary judgment, ruling that
Gertskis’s discrimination claims were time-barred or lacked evidence. Gertskis v. N.Y. City
Dep’t of Health & Mental Hygiene, No. 07-cv-2235, 2009 WL 812263 (S.D.N.Y. Mar. 26,
2009), aff’d, 375 F. App’x 138 (2d Cir. 2010) (summary order) (“Gertskis I”). Gertskis filed the
second case, which is the subject of this appeal, after an administrative law judge determined
that her absence from her job was misconduct justifying termination, Gertskis v. EEOC, No. 11-
cv-5830 (S.D.N.Y.) (“Gertskis II”). Gertskis filed the third case, Gertskis v. N.Y. City Dep’t of
Health & Mental Hygiene, No. 13-cv-2024 (S.D.N.Y.) (“Gertskis III”), after the district court
dismissed Gertskis II and before the appeal of Gertksis I. In that case, she brought similar claims
against some of the same defendants from the prior cases along with several additional
defendants. Her complaint in Gertskis III was dismissed, and the district court barred her from
filing, without leave of court, future claims relating to her employment by the DOHMH, the
termination of her employment, and her failure to be rehired by the City.
3
556 U.S. 662, 678 (2009). We also review de novo orders granting summary judgment, affirming
the district court if it properly concluded that there was no genuine dispute about any material
fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff
& Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Fed. R. Civ. P. 56(a).
The district court dismissed Gertskis’s complaint as against the DOHMH and its
employees, the union, and the federal government defendants on the claims other than FOIA.
Gertskis argues on appeal that the district court’s dismissal ignored evidence or failed to
consider the facts in the light most favorable to her. But this argument has no bearing on the
district court’s finding that her claims were untimely, barred by res judicata, or that it lacked
jurisdiction to consider them. We decline to consider her argument, raised for the first time on
appeal, that her claims of wrongful dismissal based on age and race discrimination should have
been deemed exhausted because they were reasonably related to her exhausted gender
discrimination claims. See Greene v. United States, 13 F.3d 577, 585–86 (2d Cir. 1994).
The federal government defendants moved for summary judgment on Gertskis’s FOIA
claim and prevailed. Gertskis contends that these defendants failed to show that the relevant
FOIA exemptions applied. We disagree. The affidavit of Stephanie Garner, Assistant Legal
Counsel to the EEOC, clearly sets out its rationale for invoking the exemption, which the district
court noted. A thorough review of Gertskis’s submissions in opposition to summary judgment
reveals nothing to raise a material issue of fact as to the applicability of the exemptions, and
Gertskis does not specify how these defendants failed to carry their burden. Finally, the EEOC’s
failure to submit a statement of undisputed facts is irrelevant, because a motion for summary
judgment on a FOIA claim can rest on an agency’s affidavits alone. See Long v. Office of Pers.
Mgmt., 692 F.3d 185, 190–91 (2d Cir. 2012).
4
Finally, Gertskis argues that the district court erred in denying her motion to compel
discovery, a decision we review for abuse of discretion, bearing in mind that a “district court has
broad discretion to manage pre-trial discovery.” Wood v. Fed. Bureau of Investigation, 432 F.3d
78, 84 (2d Cir. 2005). The district court here denied Gertskis’s motion to compel discovery until
the motions to dismiss were resolved. Although courts may allow limited discovery to determine
Rule 12(b)(1) motions to dismiss for lack of jurisdiction, the lack of jurisdiction here was based
on the federal sovereign immunity of the EEOC and DOJ and its officers in their official
capacity. Gertskis sought in discovery access to her EEOC charge files, and there is no
indication that her discovery request sought information that may have allowed her to defeat the
federal government defendants’ sovereign-immunity defense. See Gualandi v. Adams, 385 F.3d
236, 245 (2d Cir. 2004).
We have considered Gertskis’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the district court’s orders and judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5 | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1351409/ | 116 Ga. App. 86 (1967)
156 S.E.2d 409
ATLANTIC COAST LINE RAILROAD COMPANY
v.
BLOUNT.
42727.
Court of Appeals of Georgia.
Argued April 5, 1967.
Decided June 7, 1967.
Rehearing Denied June 28, 1967.
Bennett, Pedrick & Bennett, Larry E. Pedrick, Wilson G. Pedrick, for appellant.
Benjamin Smith, Jr., Leon A. Wilson, II, for appellee.
PER CURIAM.
This is an action under the Federal Employers' Liability Act. The employee, while standing at the floor level on the framework of a caboose under construction and attempting to straighten a bent rivet above the level of his head, slipped and fell through the framework, injuring his back. The employer appeals from an adverse verdict and judgment, the trial court having overruled its motion for new trial. Held:
1. The first four enumerated errors are directed to the remarks of counsel for the employee in his opening statement and argument to the jury that assumption of risk was no defense to the action, instructions of the court to the jury to the same effect, and the failure of the trial judge to give requested instructions concerning assumption of risk. The instructions as given by the court are identical with the instructions previously approved by this court as permissible cautionary instructions, and to this extent the ruling in Atlantic C. L. R. Co. v. Smith, 107 Ga. App. 384 (2) (130 SE2d 355) is controlling in the present case. In addition to the cases there cited, see Koshorek v. Pennsylvania R. Co., 318 F2d 364, 367 (3d Cir.); Atlantic C. L. R. Co. v. Burkett, 192 F2d 941, 943 (5th Cir.). The remarks of counsel concerning assumption of risk were not incorrect or misleading, and counsel and the court made it clear that the jury was bound by the instructions of the court as to the law. These instructions appear *87 to be complete as to negligence and proximate cause, and except with respect to assumption of risk there is no contention of any error in the instructions as given. As counsel are entitled to a wide latitude in discussing the evidence of a case and wherein the law applies, and as cautionary instructions by the court on assumption of risk are permissible, the requested instructions were erroneous to the extent of requiring the court to inform the jury that assumption of risk "has no part in the argument of counsel, or in the instructions of the court, or in your deliberations," and the court properly refused to give the requested instructions. See De Pascale v. Pennsylvania R. Co., 180 F2d 825 (3d Cir.). These enumerated errors are without merit.
2. Eight of the remaining enumerated errors relate to opinions of the plaintiff and other employees concerning the need for a temporary floor covering for the caboose as a platform as a safety measure for employees such as the plaintiff, adverse comment on a portion of the defendant's answer to the effect that the plaintiff was not an employee required to work inside the caboose and that "it was perfectly safe for those whose duties required them to be inside of the caboose," and comment that it was unsafe to drive rivets where the employee was injured. The plaintiff and the other witnesses were not safety experts, but they displayed in varying degrees a vast knowledge of the working conditions and measures used to prevent injuries, based on observation and experience as rail-road employees, and the situation under which the injury occurred was such that testimony and pictures of the scene may have been inadequate to convey sufficient information for an intelligent determination by the jury as to safety requirements. Under such circumstances it was appropriate for the trial judge to allow the witnesses to state their conclusions as an aid to the jury in determining whether the employer was negligent in failing to provide the employee a reasonably safe place to work or a safe, sufficient, and proper platform, as alleged in the petition. The testimony in this case falls squarely within the rule in Atlantic C. L. R. Co. v. Smith, 107 Ga. App. 384 (5), supra. In addition to the authority therein cited, see Code § 38-1708; Cupp v. State, 111 Ga. App. 722 (2b) (143 SE2d 197); Ellerbee v. Atlantic C. L. R. Co., 258 Ala. 76 (61 S2d 89); 20 AmJur 690, Evidence, § 820.
Even though the opinions as stated by the witnesses may have *88 reached the ultimate fact which the jury was required to decide, the Supreme Court has expressed the realistic view that "The current of opinion in this State by this court is, that what sheds light on the truth of the transaction should go to the jury; that the doors should be open rather than shut to testimony; and that, in doubtful cases, the doors should always open, letting the jury pass upon the effect and weight to be given to such evidence." Gilmer v. City of Atlanta, 77 Ga. 688, 690. The trial judge did not err in admitting the conclusions of these witnesses under the circumstances shown by the record.
3. The only other enumerated error concerns the testimony of a witness who saw another man fall, the objection being that it was a different occasion and under different circumstances. The witness testified that before a plywood floor was used on the assembly line at the station following the station where the plaintiff was injured he saw a man fall through a caboose that had no floor in it, and that the man was not injured. Assuming that this evidence was inadmissible as unrelated to the occurrence involved in the present litigation, (see Hathcox v. Atlanta Coca-Cola Bottling Co., 50 Ga. App. 410 (1) (178 S.E. 404)), it is merely cumulative in relation to testimony of other falls, admitted without objection, and it serves only to illustrate the fact as repeatedly shown in the record that without a floor covering on the steel framework of a caboose it is possible for a workman to fall through the framework. As we are of the opinion that the testimony under these circumstances could not have affected the outcome of the trial the error, if any, in admitting it was harmless.
Judgment affirmed. Jordan, P. J., Deen and Quillian, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750666/ | 650 So. 2d 172 (1995)
Theodore JAWORSKI, a/k/a Theodore Williamson, Appellant,
v.
STATE of Florida, Appellee.
No. 93-3758.
District Court of Appeal of Florida, Fourth District.
February 8, 1995.
Richard L. Jorandby, Public Defender, Margaret Good-Earnest, Eric M. Cumfer and Steven Malone, Asst. Public Defenders, West Palm Beach, for appellant.
*173 Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.
PER CURIAM.
We affirm the conviction and sentence of appellant. We also affirm the condition of probation providing that appellant will not visit places where controlled substances are unlawfully sold, dispensed or used. This court recently held:
[C]ondition eight, prohibiting defendant from visiting places where controlled substances are unlawfully sold, dispensed or used, is a valid condition of probation. Such a condition is a more explicit clarification of conduct prohibited under subsection 948.03(1)(i), Florida Statutes (1991), which states as an approved condition of probation that an offender may "not associate with persons engaged in criminal activities." This is a general condition that is valid and need not have been pronounced in open court. Accordingly, we approve of this condition.
Zeigler v. State, 647 So. 2d 272 (Fla. 4th DCA 1994); See also Tomlinson v. State, 645 So. 2d 1 (Fla. 2d DCA 1994).
However, we strike the condition of probation stating that appellant will not use intoxicants to excess. Although included within the written order, this condition was not pronounced in open court and is not a statutory condition of probation. See Zeigler, 647 So.2d at 273 (citing Cumbie v. State, 597 So. 2d 946, 947 (Fla. 1st DCA 1992)).
AFFIRMED IN PART; REVERSED IN PART.
DELL, C.J., and HERSEY and FARMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264505/ | 239 P.3d 40 (2010)
STATE of Kansas, Appellant,
v.
Sean R. ERNESTI, Appellee.
No. 101,925.
Supreme Court of Kansas.
August 27, 2010.
*43 Nicole Romine, assistant district attorney, argued the cause, and Mark A. Simpson, assistant district attorney, Charles E. Branson, district attorney, and Steve Six, attorney general, were on the brief for appellant.
Jay Norton, of Norton Hare, L.L.C., of Overland Park, argued the cause and was on the brief for appellee.
J. Brian Cox, senior litigation attorney, Legal Services Bureau, Kansas Department of Revenue, was on the brief for amicus curiae Kansas Department of Revenue.
The opinion of the court was delivered by LUCKERT, J.:
In this driving under the influence of alcohol (DUI) criminal proceeding, the district court suppressed the results of a breath test for alcohol after concluding the testing device was not properly certified. The district court reasoned the device's certificate, which was dated as being effective from January 15, 2008, until December 31, 2008, was effectively revoked in March 2008 when the certifying agency substantively changed the certification requirements, adopted new regulations, and revoked the regulations that had governed the January certification. The district court further found that the testing device had not been recertified at the time of the breath test at issue in this case and the agency's prior application for certification did not comply with the new regulations.
On the State's appeal from the suppression order, we reverse and conclude the January certification remained valid because K.S.A. 77-425, a savings statute, preserves rights and remedies vesting under a revoked rule or regulation and because the new regulations do not have retroactive application.
FACTS
This case arose from the following facts. On July 26, 2008, a law enforcement officer stopped Sean R. Ernesti (Ernesti) for driving over the speed limit. After investigating Ernesti for DUI, the officer arrested Ernesti and transported him to jail for further testing. At the jail, Ernesti agreed to submit to a breath test on the Lawrence Police Department's (LPD) Intoxilyzer 8000. He failed the breath test when the result came back at.138 grams of alcohol per 210 liters of breath. After the breath test was completed, the arresting officer initialed paragraph 9 of the DC-27 form, specifically attesting that "[t]he testing equipment used was certified by the Kansas Department of Health and Environment [KDHE]."
Certification
The certification that the LPD possessed at the time of the breath test stated that the LPD "has met the requirements of K.A.R. 28-32-4 for testing of human breath for alcohol for law enforcement purposes with the Intoxilyer 8000, serial No.'s XX-XXXXXX and XX-XXXXXX (Mobile)." The certificate was *44 "[e]ffective this 15th day of January 2008" and had an expiration date of December 31, 2008. On the effective date of the certification, the certification process and the quality control of breath test devices were governed by K.A.R. 28-32-1 through K.A.R. 28-32-7. K.A.R. 28-32-4 provided in subsection (a) that each law enforcement agency meeting the standards for test equipment and procedures, as determined by the KDHE, shall receive an annual certificate, which under subsection (b) shall expire at 12 o'clock midnight on December 31 of the year it is issued.
Approximately 3 months after the LPD obtained the January 2008 certificate, KDHE revoked K.A.R. 28-32-1 through K.A.R. 28-32-7 and adopted new regulations that set different standards for certification. The new regulations, K.A.R. 28-32-8 through K.A.R. 28-32-14, became effective March 14, 2008. As of July 2008, when Ernesti was arrested and his breath was tested, the LPD had not recertified the Intoxilyzer 8000 under the new regulations.
In September 2008, approximately 6 months after the new regulations were adopted and approximately 2 months after Ernesti's breath test, the KDHE issued a new certificate for the LPD's Intoxilyzer 8000. The new certificate indicated that certification was obtained pursuant to K.A.R. 28-32-9. KDHE backdated the effective date, stating it was effective from March 14, 2008, through December 31, 2008. Thus, both certificates (the one issued in January 2008 under K.A.R. 28-32-4 and the one issued in September 2008 under K.A.R. 28-32-9) indicated that certification was good through the end of the year 2008.
After the State charged Ernesti with DUI, he filed a motion to suppress the breath test result based on the failure of the LPD and the KDHE to follow the new regulations, K.A.R. 28-32-8 et seq., and the KDHE's failure to properly certify the Intoxilyzer 8000 as of Ernesti's testing date.
District Court's Ruling
The district court agreed with Ernesti's rationale that there was no valid certification for the "agency or testing device" at the time of Ernesti's breath test because the breath testing device used to obtain Ernesti's breath alcohol content "has never been properly certified pursuant to the Kansas Administrative Regulations (K.A.R.) promulgated by the KDHE and could not have been properly certified." The court based these findings on the fact that the LPD's original certificate was issued under the old provisions of the regulations and on the conclusion that "substantive changes" were made to the regulations when the new provisions became effective on March 14, 2008.
The district court pointed out some differences between the old and new administrative regulations. The district court noted that these differences largely revolve around distinctions drawn between the roles and duties of the "agency," "agency custodian," and "device custodian." K.A.R. 28-32-8(a), (b), (h).
The first term, "agency," is defined in the new regulations to mean "any law enforcement agency under whose authority evidential breath alcohol tests are performed." K.A.R. 28-32-8(a). The regulations provide for "agency certification," and the procedure and requirements for the agency certification are set out in K.A.R. 28-32-9, the regulation cited in the LPD certificate that was backdated as being effective on March 14, 2008. The old regulations, as the district court noted, also required the "agency" to submit an application for agency certification, but the new regulations are much more detailed as to the requirements of the agency application.
In addition, the new regulations require the "agency head" to submit the agency application. K.A.R. 28-32-9; see K.S.A. 77-602(a) (defining "agency head"). In making an application for certification under the new regulations, the agency head must include "a roster of the certified operators" who perform breath tests for the agency. K.A.R. 28-32-9(b)(2). This roster requirement was not part of the old regulations, and, as Ernesti stated, "[N]o roster had ever been submitted [by the LPD] under either the old or new regulations."
The new regulations also impose duties on the "agency custodian," who is identified as *45 "the employee at a certified agency who is responsible for administering the certified agency's [evidential breath alcohol test] program." K.A.R. 28-32-8(b). The agency custodian is responsible for applying for device certification. K.A.R. 28-32-11. In contrast, under the old regulations, the "agency" applied for certification of the devices and approval of procedures, performance, and training. K.A.R. 28-32-1. The district court found that the State failed to show that there was a separate application for certification of the Intoxilyzer 8000 made by the agency custodian. Indeed, Christine Houston, the supervisor of the breath alcohol program for the KDHE, indicated that she did not know the identity of LPD's agency custodian, and Officer Richard Nichols, the intoxilyzer custodian for the LPD, testified that he was the device custodian, not the agency custodian.
A "device custodian" is defined as "the certified operator employed by a certified agency who is responsible for oversight of the certified agency's EBAT device." K.A.R. 28-32-8(h). The distinction between an agency and a device custodian is significant under the new regulations because the device custodian, while responsible for overseeing the breath testing devices, does not apply for device certification. As previously noted, this duty is now imposed on the agency custodian. K.A.R. 28-32-8(b), (h); K.A.R. 28-32-11(a). Sergeant Randy Roberts was the person in charge of the LPD's "alcohol program" (and would appear to be the agency custodian), and there was no evidence that Sergeant Roberts had ever submitted an application for the certification of the Intoxilyzer 8000, as required by the new regulations.
In summary, the district court concluded: "The Kansas Department of Health and Environment and the Lawrence Police Department failed to comply with the new regulations and requirements."
The State timely filed this interlocutory appeal pursuant to K.S.A. 22-3603, challenging the suppression ruling. This case was transferred to this court pursuant to K.S.A. 20-3018(c).
ISSUE 1: DID THE DISTRICT COURT HAVE JURISDICTION TO REVIEW KDHE'S CERTIFICATION OF THE LPD'S INTOXILYZER 8000?
For the first time on appeal, the State raises the preliminary question of whether the district court had jurisdiction to review the KDHE's certification of the LPD's Intoxilyzer 8000. The State contends that the district court's finding that the KDHE did not follow its own regulations in certifying the LPD and the Intoxilyzer 8000 amounted to "an unlawful judicial review of state agency action." In a related argument, the State contends that Ernesti did not have standing to challenge the certification of the device because the certification was directed to the LPD, not Ernesti, and that even if Ernesti had standing, he failed to first exhaust all administrative remedies.
Although the State raises these questions for the first time on appeal, jurisdictional matters may be raised at any time and even on an appellate court's own motion. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009); Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009). Further, standing is a component of subject matter jurisdiction and may be raised for the first time on appeal. Both the general issue of jurisdiction and the more specific issue of standing are issues of law. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
The jurisdiction argument presented by the State begins with the correct statement that the legislature has delegated to the KDHE the task of developing regulations establishing procedures, testing protocols, qualifications, and standards of performing testing of human breath for law enforcement purposes. K.S.A.2009 Supp. 65-1,107(b); see K.S.A. 65-1,109 (making it unlawful for any person to "make any test of the human breath for law enforcement purposes" unless person has complied with KDHE's rules and regulations and the equipment complies with KDHE's rules and regulations). In fulfilling these duties, the KDHE has developed a procedure for law enforcement and other agencies to obtain certification of breath testing devices. An appeal from such a proceeding, *46 as the State argues, would have to be taken under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. The KJRA requires the filing of a petition in order to begin an action for judicial review, and such a petition was not filed in this case. See K.S.A. 77-607; K.S.A. 77-610.
Although these initial steps on which the State's argument is based are correct, those steps do not necessarily lead to the conclusion that the KJRA applies to this appeal. The KJRA only applies to appeals of "agency actions" (K.S.A.2009 Supp. 77-603[a]), and none of the issues required to resolve this appeal involve an agency action. An "agency action" is defined to mean: "(1) The whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency's performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise." K.S.A. 77-602(b). Ernesti does not attack the validity of or the failure to issue a rule or regulation. While he focuses on an agency orderthe certificationhe does not attack the process of certifying the LPD and its Intoxilyzer 8000 in January 2008 or on the decision that resulted from that application process. (Ernesti does attack the issuance of the September 2008 backdated certificate but, as will be discussed further, we do not reach the validity of that action.)
Rather, the issues we resolve in this appeal were not the subject of any administrative proceeding. Hence, we conclude the State's jurisdiction argument fails. See State v. MacKenzie, 114 Wash.App. 687, 696, 60 P.3d 607 (2002) (holding that in DUI prosecutions trial courts did not reach beyond inherent powers into matters governed by state's Administrative Procedure Act when the courts interpreted administrative regulations on breath alcohol testing machines and addressed issues of regulations' validity and retroactivity).
The State's argument that Ernesti lacks standing also lacks merit. While we agree that Ernesti would lack standing in an action under the KJRA regarding the device's certification, as a person charged with DUI based on a breath test failure, he has prudential standing to argue that the State cannot lay the necessary foundation to admit the breath test results into evidence in a criminal DUI proceeding. See State v. Strand, 261 Kan. 895, 898, 933 P.2d 713 (1997) (considering contention that blood alcohol content test results were improperly admitted because device had not been recertified following repair); State v. Pollman, 41 Kan. App. 2d 20, 27-28, 204 P.3d 630 (2008) (considering challenge that device was not listed as an approved device in regulation and noting State's failure to show that device had been otherwise evaluated by the KDHE and met the regulations' criteria); State v. Shaw, 37 Kan. App. 2d 485, 491-92, 154 P.3d 524 (2007) (addressing DUI defendant's challenge to procedure requirements related to implied consent advisories under K.S.A. 8-1001); see generally State ex rel. Morrison v. Sebelius, 285 Kan. 875, 892, 179 P.3d 366 (2008) (discussing standing requirement).
In defining the evidentiary foundation for the admission of a test failure in a criminal DUI proceeding, this court has required the State, at a minimum, to present evidence that there was compliance with K.S.A.2009 Supp. 8-1002(a)(3). See State v. Bishop, 264 Kan. 717, 725, 957 P.2d 369 (1998). In various cases, this court and the Court of Appeals have paraphrased these requirements and the parties quibble over the significance of words used in some of those opinions. The important concept from the cases, however, is that K.S.A.2009 Supp. 8-1002(a)(3) establishes minimal foundation requirements. It requires the State to show:
"(A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment." K.S.A.2009 Supp. 8-1002(a)(3).
Of these three requirements, it is only the firstthe certification of equipment by KDHEthat is questioned by Ernesti. He does so by attacking the agency certification issued in January 2008. The Kansas Department *47 of Revenue (KDR), in its amicus curiae brief, notes that there is no explicit requirement of agency certification in K.S.A. 2009 Supp. 8-1002(a)(3). Nevertheless, K.A.R. 28-32-1(a)(1) (revoked March 14, 2008) established a process where a law enforcement agency applied to KDHE for the certification of the test equipment and through this mechanism the equipment was certified. Cf. K.A.R. 28-32-9(b) (effective March 14, 2008; providing: "[1] The agency head shall specify each certified [evidential breath alcohol test] device proposed for conducting evidential breath alcohol testing."). Further, KDHE worded the certificates (both the one effective January 15, 2008, and the one effective March 14, 2008) to reflect that the LPD "has met the requirements . . . for testing of human breath for alcohol for law enforcement purposes with the Intozilyzer 8000." Consequently, while K.S.A.2009 Supp. 8-1002(a)(3) does not require proof of agency certification, as a practical matter providing proof of device certification means that an agency applied for and received the certification. We do not, therefore, dismiss Ernesti's argument simply because it is phrased as a failure to obtain agency certification. Further, because our decision today is based on the old regulations, we do not address the foundation requirements under the new regulations.
Under the old regulations, as Ernesti argues, the State must establish that the specific testing device was certified in order for the test results to be admitted into evidence, and Ernesti has standing to challenge whether the State sustained its burden. We, therefore, consider the merits of his challenge.
ISSUE 2: DID THE DISTRICT COURT ERR BY SUPPRESSING THE BREATH TEST RESULT?
The focus of that challenge is the question of whether the district court erred in suppressing the breath test result because the State failed to establish that the device used to test Ernesti's breath was certified pursuant to the regulations that became effective on March 14, 2008.
Standard of Review
As we consider this issue, there are at least three possible contexts in which to determine the appropriate standard of review.
First, we are reviewing an order suppressing evidence. An appellate court reviews the factual underpinnings of a motion to suppress by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. State v. Marx, 289 Kan. 657, 660, 215 P.3d 601 (2009); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). In this case, the parties do not dispute the district court's findings of fact. There is no controversy regarding the nature of the certifications and the timeline of relevant eventsthe January certification, the adoption and repeal of regulations, the testing of Ernesti, and the subsequent reissuance of a certification. The dispute surrounds the legal conclusions; hence, under the motion to suppress standard, our review is de novo.
The second context for consideration of the standard of review is the nature of the legal conclusions at issue. Our analysis, like the district court's, depends on the interpretation and construction of statutes relating to DUI and the testing of blood alcohol content and on the interpretation of administrative regulations promulgated by the KDHE. Appellate review of a district court's interpretation of either statutes or regulations is unlimited. In re Tax Appeal of Lemons, 289 Kan. 761, 762, 217 P.3d 41 (2009) (statutes); State v. Strand, 261 Kan. 895, 897, 933 P.2d 713 (1997) (regulations).
Third, our focus is on the district court's determination that the State cannot meet the foundation requirements. The question of whether evidentiary foundation requirements have been met is left largely to the discretion of the district court. Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 90, 11 P.3d 1165 (2000). Under an abuse of discretion standard, an appellate court will not disturb a district court's decision unless no reasonable person would have taken the same view. See Vorhees v. Baltazar, 283 Kan. 389, 393, 153 P.3d 1227 (2007). Yet, even under the deferential abuse of discretion *48 standard of review, an appellate court has unlimited review of legal conclusions upon which a district court's discretionary decision is based. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000). Because "`[a] district court by definition abuses its discretion when it makes an error of law, . . . [t]he abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" Kuhn, 270 Kan. at 456, 14 P.3d 1170 (quoting Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 135 L. Ed. 2d 392 [1996]); see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (district judge's discretionary decision protected under abuse of discretion standard "if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards"). In this appeal, the focus is on the legal conclusion that led to the district court's foundation ruling.
Hence, in each context, our standard of review is unlimited.
Application of New Regulations
In considering the issue of law that is the focal point of this appeal, the State and amicus curiae KDR argue that the district court did not explain why the rights bestowed by the original certificate, issued under the old regulations for the year 2008, would not continue for the remainder of that calendar year. Nor, they argue, did the district court explain why the LPD would be required to meet substantive changes in the administrative regulations that were not effective until after the LPD had already received certification for 2008, thereby meeting all the requirements of the regulations in effect at the time of its application. In other words, why the retroactive application of substantive law? See Kelly v. VinZant, 287 Kan. 509, 521, 197 P.3d 803 (2008) (stating that a statutory amendment operates prospectively unless the language of the statute clearly shows that it is the intention of the legislature that it operate retroactively). Given the district court's analysis, both rationales(1) the certificate was effectively revoked and (2) the LPD failed to comply with the new regulations in making its 2008 applicationmust be considered.
Certificate Revoked or Saved?
The State and amicus curiae KDR argue that the January 2008 certificate remained in effect and the rights granted by the certification were not revoked simply because the regulations were revoked. To support the argument, amicus curiae KDR points to K.S.A. 77-425, which states in relevant part:
"The revocation of a rule and regulation by a state agency shall not be construed as reviving a rule and regulation previously revoked by such agency, nor shall such revocation by a state agency be construed as affecting any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the rule and regulation revoked." The KDR argues that under this provision the revocation of the regulations did not impact the certification that had been issued in January 2008, which on its face stated it was effective from January 15, 2008, until December 31, 2008.
Before discussing the substance of K.S.A. 77-425 and its impact on the issues, we must consider the fact the statute was first cited and discussed in the amicus brief filed by the KDR. In other words, it was not cited to the district court or in the appellant's or appellee's initial briefs. It was, however, argued in this appeal sufficiently early that Ernesti was able to submit a brief discussing the implications of the statute and both the State and Ernesti discussed K.S.A. 77-425 during oral arguments before this court. Hence, the parties had a full opportunity to argue the impact of the provision. Further, even though K.S.A. 77-425 was not considered by the district court, it can be considered for the first time on appeal because it presents a question of law that is potentially dispositive of the appeal. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
This court has not previously applied K.S.A. 77-425 but has applied a similar provision relating to legislation, K.S.A. 77-201 First. In doing so, we have construed K.S.A. 77-201 First as a general savings statute *49 that preserves all rights and remedies under a repealed statute when the repealing statute is silent as to whether such rights and remedies shall be abrogated. See, e.g., State v. Armstrong, 238 Kan. 559, 566, 712 P.2d 1258 (1986) (holding that defendant was not entitled to dismissal on basis that statutes under which he was charged had been amended after the offenses were committed); City of Kansas City v. Griffin, 233 Kan. 685, 689, 664 P.2d 865 (1983) ("Where a new statute or ordinance defining a crime is enacted which is still the same basic crime with the same basic elements and only the penalty is increased, it seems logical to us that, in the absence of some evidence of a contrary intention, the legislative intent is not to abate pending prosecutions.").
Cases applying K.S.A. 77-201 First are helpful in two respects. First, the cases recognize that the statute abrogates the common-law rule that the repeal of a statute terminates rights accruing or prosecutions commenced under the repealed statute. See Griffin, 233 Kan. at 686-87, 664 P.2d 865. In this case, the district court applied the common-law rule without regard to the effect of the general, statutory savings provision. Yet, K.S.A. 77-425, in the same manner as K.S.A. 77-201 First, is a general savings statute that preserves all rights and remedies under a repealed regulation when the repealing regulation is silent as to whether such rights and remedies shall be abrogated. As such, when a regulation is repealed, K.S.A. 77-425 abrogates the common-law rule that the repeal terminates rights accruing or proceedings commenced under the repealed provision.
Second, the cases applying K.S.A. 77-201 First address an argument made by Ernestii.e., that a savings statute has no application because the proceedings against him were not initiated until after the regulations were revoked. This narrow focus on the term "proceeding" in K.S.A. 77-425 and narrow view of what that term means is contrary to the case law under K.S.A. 77-201 First. In The State v. City of Topeka, 68 Kan. 177, 74 P. 647 (1903), this court explained that the term "proceeding" as used in the statute is not limited to judicial proceedings. Rather, in the context of that case, the term applied to "the organization, powers, and duties of cities of the first class, and particularly of issuing bonds and the erection of public improvements, and it was to protect proceedings of this character commenced under previously existing laws that the saving clause was enacted." Topeka, 68 Kan. at 187, 74 P. 647. Here, a different context applies to the "proceeding." As the State and the KDR note, and as we previously discussed in the context of the jurisdiction argument, the certification process requires an administrative proceeding that ends with the denial or issuance of a certificate. In this case, the LPD initiated a proceeding and received the administrative award of a certificatei.e., an administrative orderthat was valid until December 31, 2008. The subsequent adoption of regulations would not require that the LPD meet new requirements for the already-issued certificate to be valid.
Rather, the LPD was entitledindeed, it had the rightto rely on the authorized certificate without fear of penalty. This right arises primarily from the fact that if there was not a valid certification of the testing device both the LPD officer who administered the test and the LPD were potentially subject to penalties. As it would affect the officer, the legislature has declared it a crime to test human breath for law enforcement purposes unless the testing device was approved by the KDHE, stating:
"(a) It shall be unlawful for any person to make any test of the human breath for law enforcement purposes, unless:
. . . .
(2) the apparatus, equipment or device used by such person in the testing of human breath for law enforcement purposes is of a type approved by the secretary of health and environment and otherwise complies with the rules and regulations of the secretary of health and environment adopted pursuant to K.S.A. 65-1,107 and amendments thereto to govern the periodic inspection of such apparatus, equipment and devices.
"(b) Any person who violates any provision of subsection (a) shall be guilty of a class C misdemeanor.
*50 "(c) Nothing in this section shall be construed to prohibit the use of devices approved pursuant to K.S.A. 65-1,107 and amendments thereto for . . . law enforcement purposes." K.S.A. 65-1,109.
Further, there are potential consequences for any agency that allows testing without compliance with the regulations. See K.A.R. 28-32-9(f) ("[t]he failure to comply with this regulation may be grounds for suspension or revocation of the agency's certification"); K.A.R. 28-32-10(f) (relating to operator certification; "[t]he failure of an applicant or a certified operator to comply with this regulation may be grounds for denial of the application or renewal or for suspension or revocation of the operator's certificate").
The LPD sought and obtained a certification from the KDHE, and device operators relied on that certification as a license to legally perform breath tests for law enforcement purposes. Thus, the certificate protected important interests and vested an accrued right, and suspension of the issued certificate would involve state action that adjudicates important interests. As such, the certificate cannot be taken away without the procedural due process required by the Fourteenth Amendment to the United States Constitution. See Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); State v. Heironimus, 262 Kan. 796, 803, 941 P.2d 1356 (1997).
Because such an accrued right existed, K.S.A. 77-425 preserves the validity of both the administrative process of seeking a certificate and the resulting administrative order represented by a certificate issued pursuant to K.A.R. 28-32-4, even after the regulation was revoked. Consequently, a certificate issued pursuant to K.A.R. 28-32-4 remains valid until its original expiration date even though the regulation was revoked.
Retroactive Application
The second rationale that is at least implied by the district court's conclusions is that the State could have laid a sufficient foundation by presenting evidence that the LPD's 2008 application complied with the not-yet-adopted regulations. As previously noted, the district court observed that there was some evidence that the application was made even before the new regulations were promulgated. Yet, the court searched the record for evidence of compliance with the new regulations in areas where the regulations varied from the old. For example, the district court concluded there was no evidence that the agency custodian had submitted an application or that a roster of certified operators had been submitted.
As the State notes, requiring this type of prescient compliance essentially grants retroactive effect to the regulations. Yet, generally administrative regulations operate prospectively unless a contrary intent is clearly indicated. Jones v. The Grain Club, 227 Kan. 148, 150, 605 P.2d 142 (1980). There is no requirement in K.S.A.2009 Supp. 8-1002 that the testing device be certified under regulations in effect on the date of testing; rather, the device must simply be certified. Nor is there a provision in K.A.R. 28-32-8 et seq. requiring any previously certified agency to reapply for device certification for the year 2008 or any other indication of an intent to apply the regulations retroactively.
Further, as a general rule, additional requirements cannot be imposed on proceedings that are under way or have already been finalized when new provisions are enacted or adopted. See generally Jones, 227 Kan. at 150-51, 605 P.2d 142 (filing of complaint with Kansas Commission on Civil Rights in accord with requirements at time sufficient to vest jurisdiction; not necessary to comply with subsequently enacted jurisdictional requirements). In the present case, the requirements that specific agency personnel fill out separate applications for certification of the agency, breath testing devices, and operating personnel were not provided for in the procedures in place when the LPD's application was filed. Hence, even if the LPD had attempted to meet the substance of proposed regulations, no procedure was in place for doing so.
Under those circumstances, the district court's interpretation of the requirements would lead to a nonsensical resulta law *51 enforcement agency would have to have met requirements not yet in place without a procedural mechanism for doing so. Imposing this impossible task would result in an undermining of the purpose of establishing procedures, testing protocols, qualifications, and standards of performing testing of human breath for law enforcement purposes. Consequently, such an application of the regulations would not lead to "consistent, harmonious, and sensible" results. In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989); see Barbury v. Duckwall Alco Stores, Inc., 42 Kan. App. 2d 693, Syl. ¶ 1, 215 P.3d 643 (2009) (stating that to be valid, administrative regulations must be within agency's statutory authority, and they must be appropriate, reasonable, and consistent with the underlying statutes). The district court clearly believed that the State was responsible for the resulting void and the inability to conduct legal testing. While it was within the State's control to prevent such a void, the State did so when the legislature adopted the savings provision in K.S.A. 77-425.
Consequently, we conclude that K.A.R. 28-32-8 et seq. apply prospectively. The district court erred in its interpretation of the administrative regulations and thereby deciding to retroactively apply the certification requirements under the new regulations.
District Court's Requiring Possession of New Certificate at Time of Breath Test
Finally, the State argues that the district court placed too high an evidentiary burden on the State by requiring the LPD to possess the new, reissued certificate at the time the breath test was administered on Ernesti. Although the LPD had possession of the January 15, 2008, certificate (granting certification through December 31, 2008), the district court did not consider the certificate to be sufficient in light of the enactment of the new regulations on March 14, 2008. Likewise, the reissued certificate was deemed to be insufficient, in part because it was issued after Ernesti's July 2008 breath test and backdated to March 14, 2008 (granting certification through December 31, 2008).
Because of the savings clause and prospective application rationale we have applied, this issue is rendered moot. So, too, are the parties' arguments regarding the effectiveness of the backdated certificate.
In conclusion, we find that the district court erred in applying the new administrative regulations to this case and in failing to recognize the continued validity of the January 2008 certificate. Consequently, the LPD correctly possessed a valid certificate for the device used to administer the breath alcohol test to Ernesti, a certificate that was issued pursuant to the administrative regulations in effect at the time of certification. The district court erred in concluding otherwise. The breath test result should not have been suppressed on this basis.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3066275/ | Case: 14-7047 Document: 18 Page: 1 Filed: 09/16/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT MARTIN,
Claimant-Appellant,
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2014-7047
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2250, Judge Margaret C.
Bartley.
______________________
ON MOTION
______________________
Before PROST, Chief Judge, WALLACH and CHEN, Circuit
Judges.
PER CURIAM.
ORDER
Upon consideration of Robert Martin’s motion for re-
consideration of this court’s July 16, 2014 order granting
the Secretary’s motion for summary affirmance,
Case: 14-7047 Document: 18 Page: 2 Filed: 09/16/2014
2 MARTIN v. MCDONALD
IT IS ORDERED THAT:
The motion is denied.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s24 | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2632619/ | 103 P.3d 1230 (2005)
Lonnie BURTON; Gordon Lebar; James Bringham; and Michael Holmberg, individually and on behalf of a class of similarly situated individuals, Petitioners,
v.
Joseph LEHMAN and Jane Doe, Lehman, husband and wife; Doug Waddington and Jane Doe Waddington, husband and wife; Maggie Miller-Stout and John Doe Miller-Stout, husband and wife; Kathy Kaatz and John Doe Kaatz, husband and wife; Richard Morgan and Jane Doe Morgan, husband and wife; Patricia Gorman and John Doe Gorman, husband and wife; Carol Porter and John Doe Porter; and John Does and Jane Does 1 Through 20, Respondents.
No. 74731-8.
Supreme Court of Washington, En Banc.
Argued September 28, 2004.
Decided January 13, 2005.
*1232 Michael John Rasch, Thomas Juhl, Seattle, for Petitioners.
Douglas Wayne Carr, Olympia, for Respondents.
OWENS, J.
Petitioners Lonnie Burton and three other inmates (Burton) filed suit against the Department of Corrections (DOC), the DOC secretary, and several DOC superintendents claiming that DOC Policy 440.000 violates RCW 72.02.045. RCW 72.02.045(3) states that "[w]hen convicted persons are released from the confines of the institution either on parole, transfer, or discharge, all ... valuable personal property in the possession of the superintendent belonging to such convicted persons shall be delivered to them." In contrast, DOC Policy 440.000, section IX limits the amount of property that DOC will ship free of charge to two boxes along with state issued transport and clothing bags.[1] All excess property must be shipped at inmates' expense, donated, or destroyed. Id. Based on DOC's practices under Policy 440.000, Burton made additional claims for due process violations; fraud; conversion; violations of the Washington Criminal Profiteering Act (WCPA), chapter 9A.82 RCW; and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. The superior court found that the term "transfer" did not apply to intra-DOC inmate movement and dismissed all of Burton's claims pursuant to a CR 12(b)(6) motion. The Court of Appeals affirmed on other grounds, holding that "transfer" does include intra-DOC movement but that inmates effectively receive "constructive delivery" under Policy 440.000.
I. FACTS
DOC Policy 440.000, section IX states that DOC will ship a limited amount of property free of charge when an inmate is transferred to another DOC facility and that any excess property must be shipped at the offender's expense, donated, or destroyed.[2] Items such as typewriters, musical instruments, televisions, and stereo equipment are generally *1233 excluded from the two box limit. In contrast, RCW 72.02.045 states in relevant part as follows:
(3) The superintendent shall be the custodian of all funds and valuable personal property of convicted persons as may be in their possession upon admission to the institution, or which may be sent or brought in to such persons, or earned by them while in custody, or which shall be forwarded to the superintendent on behalf of convicted persons....When convicted persons are released from the confines of the institution either on parole, transfer, or discharge, all funds and valuable personal property in the possession of the superintendent belonging to such convicted persons shall be delivered to them.
(Emphasis added.)
Burton's complaint alleges several transfers between DOC institutions where DOC required the payment of shipping costs for property in excess of the Policy 440.000 limit. The complaint requested class certification, alleging that DOC Policy 440.000 and its implementation violates the RCW 72.02.045(3) requirement that superintendents "shall" deliver all personal property to the inmate upon "transfer." Burton further alleged due process violations, fraud, conversion, violations of the WCPA, and violations of RICO. Burton requested several types of relief, including compensatory damages, punitive damages, treble damages, costs and attorney fees, statutory penalties, declaratory relief, an injunction, and pre- and postjudgment interest. Judge Daniel J. Berschauer granted DOC's CR 12(b)(6) motion to dismiss before any discovery was conducted, concluding that RCW 72.02.045 did not require DOC to pay for the transport of property upon an inmate's transfer to another DOC institution. The court found the word "transfer" in RCW 72.02.045 to be ambiguous and adopted DOC's view that "transfer" means transfer to the street, rather than to another DOC institution. Because the court concluded that all of Burton's additional claims were dependent upon a violation of the statute, it did not address those claims individually, but rather dismissed the complaint entirely.
Burton appealed, and the Court of Appeals affirmed on other grounds. Burton v. Lehman, 118 Wash.App. 307, 309, 76 P.3d 271 (2003). The court held that "transfer" in RCW 72.02.045(3) was not ambiguous and "clearly suggests" transfers between DOC institutions. Id. at 312-13, 76 P.3d 271. However, the court went on to hold that the term "delivery" was ambiguous because it could refer to actual or constructive delivery. Id. at 314, 76 P.3d 271. The Court of Appeals reasoned that "constructive delivery" was the appropriate definition because RCW 72.02.045(3) states that the superintendent is the custodian of inmate property and WAC 137-36-030(3) allows the superintendent to determine the type and amount of inmate property. Id. Using the constructive delivery definition, the court held that DOC Policy 440.000 does not violate RCW 72.02.045(3) because constructive delivery occurs when inmates are given the option to (1) arrange for pickup by a nonincarcerated person, (2) pay to ship the property, or (3) leave the property to the transferring DOC institution for donation or destruction. Id. at 310, 314, 76 P.3d 271. Burton's motion for reconsideration was denied, and this court granted review on June 2, 2004.
II. ISSUES
1. Does DOC Policy 440.000, requiring inmates to either pay the shipping costs for some of their property or lose ownership of that property, violate the requirement in RCW 72.02.045(3) that DOC superintendents shall deliver inmate property upon transfer?
2. Were Burton's claims for constitutional rights violations, fraud, conversion, violations of the WCPA, and violations of RICO properly dismissed pursuant to CR 12(b)(6)?
III. STANDARD OF REVIEW
Whether a dismissal was appropriate under CR 12(b)(6) is a question of law that an appellate court reviews de novo. Tenore v. AT & T Wireless Servs., 136 Wash.2d 322, 329-30, 962 P.2d 104 (1998). Under CR 12(b)(6), dismissal is only appropriate if "it appears beyond doubt that the plaintiff cannot prove any set of facts which *1234 would justify recovery." Id. at 330, 962 P.2d 104. In undertaking such an analysis, "a plaintiff's allegations are presumed to be true and a court may consider hypothetical facts not included in the record." Id. Statutory interpretation is also a question of law that is reviewed de novo. W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wash.2d 599, 607, 998 P.2d 884 (2000).
IV. ANALYSIS
A. Statutory Violation of RCW 72.02.045(3)
Where statutory language is plain and unambiguous, a court will not construe the statute but will glean the legislative intent from the words of the statute itself, regardless of a contrary interpretation by an administrative agency. See Bravo v. Dolsen Cos., 125 Wash.2d 745, 752, 888 P.2d 147 (1995); Smith v. N. Pac. Ry. Co., 7 Wash.2d 652, 664, 110 P.2d 851 (1941). A statutory term that is left undefined should be given its "usual and ordinary meaning and courts may not read into a statute a meaning that is not there." State v. Hahn, 83 Wash.App. 825, 832, 924 P.2d 392 (1996). If the undefined statutory term is not technical, the court may refer to the dictionary to establish the meaning of the word. Heinsma v. City of Vancouver, 144 Wash.2d 556, 564, 29 P.3d 709 (2001). In undertaking this plain language analysis, the court must remain careful to avoid "unlikely, absurd or strained" results. State v. Stannard, 109 Wash.2d 29, 36, 742 P.2d 1244 (1987).
In contrast, an ambiguous statute requires judicial construction. A statute is ambiguous only if susceptible to two or more reasonable interpretations, but a statute is not ambiguous merely because different interpretations are conceivable. State v. Keller, 143 Wash.2d 267, 276, 19 P.3d 1030 (2001). If a statute is subject to more than one reasonable interpretation, the court should construe the statute to effectuate the legislature's intent. Davis v. Dep't of Licensing, 137 Wash.2d 957, 963, 977 P.2d 554 (1999). Only where the legislative intent is not clear from the words of a statute may the court "resort to extrinsic aids, such as legislative history." Biggs v. Vail, 119 Wash.2d 129, 134, 830 P.2d 350 (1992).
Throughout this litigation, the parties' dispute has focused on the meaning of two undefined terms in RCW 72.02.045(3): "transfer" and "deliver[y]." Although varying interpretations of these terms are conceivable in the metaphysical sense, we conclude that a plain language analysis of each is both necessary and sufficient to dispose of the question presented.
1. Transfer
The dictionary succinctly defines "transfer" as follows: "to carry or take from one person or place to another: ... to move or send to a different location." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 2426-27 (2002). Similarly, Black's Law Dictionary defines "transfer" as a verb meaning "[t]o convey or remove from one place or one person to another." BLACK'S LAW DICTIONARY 1536 (8th ed.2004). The application of these ordinary definitions to the phrase "released from the confines of the institution ... on ... transfer" requires us to give the terms "release" and "confine[ment]" their plain meaning as well. The term "release" is defined as "[t]he action of freeing or the fact of being freed from restraint or confinement." Id. at 1315-16. In turn, "confinement" is "[t]he act of imprisoning or restraining someone; the state of being imprisoned or restrained." Id. at 318. When, as here, the statutory terms are plain and unambiguous we assume the legislature meant exactly what it said and decline to construe the statute otherwise.[3]See Keller, 143 Wash.2d at 276, 19 P.3d 1030. Therefore, as the Court of Appeals correctly concluded, "transfer" must at least include an inmate's release from the confines of one DOC institution and conveyance to another. *1235 Burton, 118 Wash.App. at 312-13, 76 P.3d 271.
2. Delivery
The term "delivery" is defined as "[t]he formal act of transferring something ...; the giving or yielding possession or control of something to another." BLACK'S, supra, at 461. Although the law recognizes that delivery may be actual, constructive, or symbolic, the only reasonable definition, as applied to a transferred inmate, is "constructive" because DOC superintendents are custodians of inmate property and may limit an inmate's actual possession. See RCW 72.02.045(3); WAC 137-36-030. "Constructive delivery" requires "[a]n act that amounts to a transfer of title by operation of law when actual transfer is impractical or impossible." BLACK'S, supra, at 461.
The Court of Appeals correctly adopted the "constructive delivery" definition, though it need not have concluded that the statute was ambiguous to do so. Burton, 118 Wash.App. at 314, 76 P.3d 271. The parties themselves have not contested the use of "constructive delivery" as the correct definition, but rather they dispute its application. Burton is correct that the Court of Appeals incorrectly assumed that inmates have the option to arrange for a nonincarcerated person to retrieve excess property. See id. DOC Policy 440.000 makes no such allowance explicit, and there was no finding that Burton or any other inmate was allowed to make such arrangements. Moreover, an adoption of the Court of Appeals reasoning would fail to take into account instances where inmates are both indigent and have no available nonincarcerated persons to take possession. Such inmates would necessarily lose possession and control over the disposition of their property a result that is incongruent with the mandate in RCW 72.02.045(3) that a transferred inmate's property "shall be delivered to them." Rather, we conclude that constructive delivery requires significantly more.
For purposes of RCW 72.02.045(3), the phrase "all ... valuable personal property in the possession of the superintendent belonging to such convicted persons shall be delivered to them" cannot be artificially limited. Nothing in the statute indicates that only some of an inmates property shall be delivered, nor does it state that the property shall be delivered at such convicted persons expense. Yet this is clearly the effect of DOC Policy 440.000. Accordingly, we must conclude that the statute means exactly what it says; that is, whenever an inmate is moved between DOC institutions, DOC is responsible for ensuring that the property owned by convicted persons and held in the custody of DOC superintendents is physically relocated from the transferor institution to the transferee institution. This is the "act ... amount[ing] to a transfer of title" required to satisfy constructive delivery in this particular context. See BLACK'S, supra, at 461. We recognize that the question of whether the transferee superintendent ultimately gives an inmate actual possession of such property is a separate issue, dependant upon circumstances not addressed in RCW 72.02.045(3). However, DOC may not impose a requirement that inmates must choose between having to pay shipping costs or lose their ownership.[4]
B. Burton's Additional Claims
Burton's additional claims for due process violations, fraud, conversion, violations of the WCPA, and violations of RICO were initially dismissed by the superior court without discussion based on the incorrect conclusion that Policy 440.000 does not violate RCW 72.02.045(3). While many of these claims may continue to be without merit and subject to CR 12(b)(6) dismissal, remand is appropriate as Burton may wish to move to amend the complaint and conduct discovery, and *1236 DOC may wish to file a renewed motion based on the conclusion of this opinion.
V. CONCLUSION
We hold that the dismissal of Burton's claim that DOC Policy 440.000 violates RCW 72.02.045(3) was improper under CR 12(b)(6). The term "transfer" in RCW 72.02.045(3) includes transfers between DOC institutions. The phrase "delivered to them" refers to constructive delivery and requires DOC to convey inmate property to the receiving institution free of charge. Thus, under RCW 72.02.045(3), DOC is required to physically convey all the personal property of convicted persons, which is held in the custody of DOC superintendents, to the receiving superintendent when such convicted persons are transferred between DOC institutions. We further hold that the superior court's dismissal of Burton's additional claims under CR 12(b)(6) was inappropriate as it was based solely on an erroneous interpretation of RCW 72.02.045(3). Accordingly, we reverse the Court of Appeals and remand to the superior court for further proceedings consistent with this opinion.
We concur: ALEXANDER, C.J., JOHNSON, SANDERS and CHAMBERS, JJ.
FAIRHURST, J. (concurring).
I concur in the result reached by the majority. If we take all facts alleged by the petitioners in their pleadings as true, as CR 12(b)(6) requires, petitioners may have stated a claim for which relief could be granted. Therefore, the trial court's dismissal was improper. I write separately, however, because I do not believe, as the majority holds, that RCW 72.02.045 requires the Department of Corrections (DOC) to pay for the transport of all inmate personal property upon an inmate's transfer to a new institution.
RCW 72.02.045(3) requires the superintendent of each institution to "deliver[ ]" an inmate's personal property upon transfer to another institution. It does not require that superintendents pay for the shipment of such property. On its own accord, DOC transports up to two boxes when an inmate is transferred to a new institution. Petitioners assert that DOC's failure to pay to ship their property in excess of two boxes constitutes a failure to deliver personal property. The heart of the controversy, then, rests on the definition of "delivered" as it is used in RCW 72.02.045(3).
I agree with the majority that there can be actual and constructive delivery and that the sort of delivery at issue in this case is constructive because the correctional facility superintendents remain the custodians of inmate personal property. My disagreement with the majority, however, is when and how that delivery occurs. The majority construes delivery to mean that DOC physically transports an inmate's property at DOC's own expense from one institution to the next. I believe that delivery in the constructive sense is allowing the owners of the property to designate what happens to their property upon transfer from one facility to the next. Delivery does not require DOC to transport or pay for the shipment of all inmate personal property.
The majority appears to agree that it is the institution superintendents who continue to be the custodians of inmate property. The constructive delivery, then, is following the reasonable instructions of the owners in the potential relocation of their property. This happens at the point when inmates become aware that they will be transferred and continues for 6 or 12 months after the inmates arrive at their new institution. See WAC 137-36-040(3)(a). Inmates have several choices in determining how to manage the disposition of their property. Those choices include paying for the shipment of their property to the receiving institution, paying for shipment of their property to a nonincarcerated individual, deciding to leave their property at their former institution (while recognizing that it will be destroyed or donated within 6 or 12 months), or arranging for someone else to pick up their property within 6 months of transfer.[1]
*1237 DOC has adopted a regulation providing procedures it must follow when disposing of inmate property that is deemed to be abandoned. WAC 137-36-040. Sufficient process is built into those procedures. Id. Property left unclaimed is not presumed abandoned until 6 months have passed after an inmate has been transferred. WAC 137-36-040(3)(a). When inmates who have been transferred have no recorded next of kin or other individuals to which unclaimed property can be sent, property is not presumed abandoned for 12 months. Id. Inmates who are transferred have at least 6 months and in some cases 12 months to designate disposition of their property. Id. Once inmate property has been "abandoned" within the definitions set forth above, DOC may either destroy the property or donate it to a charitable nonprofit organization. WAC 137-36-040(3)(c). At least 30 days prior to such disposal, however, DOC must give written notice to the owner of its intent to dispose of the property. WAC 137-36-040(3)(e). Not only do inmates have 6 or 12 months to designate the disposition of their property upon transfer to a new institution, including raising money through wages, friends, or family to ship their property to their current location or elsewhere, they also get 30 days' notice prior to the donation or destruction of the abandoned property. This is sufficient for DOC to have constructively "delivered" inmate property as set forth in RCW 72.02.045(3).
Because petitioners allege that DOC forces the choice of payment for shipment or destruction of property and thereby does not allow the option of having friends or relatives pick up their personal property if they are transferred, I would remand the case to the trial court for a factual determination of the issue. If petitioners' allegations are found to be true, DOC may not have effectively delivered inmate property as required by statute. This is because, as the majority notes, there may be instances where inmates are indigent and unable to pay for the delivery of their property. Majority at 9-10. The majority also suggests there are instances where inmates would have "no available nonincarcerated persons to take possession." Id. Petitioners made no such allegation in their complaint. Regardless, WAC 137-36-040(3)(a) provides that individuals with no recorded next of kin or person to whom unclaimed property can be sent, have 12 months to come up with the funds to ship their property to their present institution. Presumably this would also allow inmates 12 months to designate or locate someone to pick up their property. This gives inmates enough control over the fate of their property to constitute constructive delivery.
The law does not require DOC to pay for the transport of inmate property; it merely allows inmates to designate the disposition of their property within reason. Accordingly, I concur in the result.
We concur: MADSEN, BRIDGE and IRELAND, JJ.
NOTES
[1] Effective May 24, 2004, DOC amended its previous policy regarding disposition and transfer of offender property. The notable difference between the old and new versions of the policy is the inclusion of a new section, DOC Policy 440.020, which adds the allowance for personal transport and clothing bags and exempts medically issued items from the two box limit. Since Burton is alleging a continuing harm, as well as past harms, all references to DOC Policy will be to the 2004 policy as the new version does not affect the requirement that inmates pay to ship the items at issue in this case.
[2] An offender is limited to two shipping boxes under 25 pounds in weight that must include legal documents, the inmate's religious sacred items box, and a valuables envelope. DOC Policy 440.000 § IX; DOC Policy 440.020. Medically issued items, a transport bag carrying toiletries, and a state issued clothing bag containing state issued clothing are also transported by DOC and not included in the two box limit. Id.
[3] DOC would have us look to the historical significance of the various statutes superseded by, and consolidated within, RCW 72.02.045(3). Undertaking an analysis of this vague and unpersuasive legislative history might have been an appropriate method of construction if "transfer" was ambiguous, but it cannot become the cause of such ambiguity where the meaning of the term is already clear. See Biggs, 119 Wash.2d at 134, 830 P.2d 350.
[4] DOC argues that its interpretation of RCW 72.02.045(3) should be given deference as the administering agency. While deference is appropriate if the interpretation reflects a plausible construction of the language of the statute, "the court is the final authority on statutory construction and it need not approve regulations or decisions inconsistent with a statute." Moses v. Dep't of Soc. & Health Servs., 90 Wash.2d 271, 274, 581 P.2d 152 (1978). DOC's interpretation is neither consistent with the plain language of RCW 72.02.045(3) nor an official interpretation of that statute. Thus, no deference is due.
[1] The Court of Appeals found that friends and relatives of inmates were allowed to pick up inmate property but did not cite support for that finding. At oral argument, petitioners argued that friends and relatives were not being allowed to pick up property. DOC responded that it believed such conduct was being allowed, but it was not certain. This is an unresolved question of fact.
The parties also discussed during oral argument how inmate property is acquired. DOC asserted that all or almost all inmate property is acquired by inmates through their own funds while incarcerated (and not allowed to be brought to the institution by friends or relatives). The implication, therefore, is that inmates who have funds to purchase property while confined should have the money to ship their property when transferred to another institution. Again, this fact is not reflected in the record and should be developed during a factual hearing. I would merely hold that constructive delivery occurs by giving inmates reasonable choices in the disposition of their property, which does not require DOC to pay for shipment. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1083815/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
WILLIAM HENRY PRESTON, )
)
Petitioner, ) C. C. A. NO. 02C01-9610-CC-00338
)
vs. ) LAKE COUNTY
STATE OF TENNESSEE,
)
) No. 96-7524
)
FILED
Respondent. ) Feb. 24, 1997
Cecil Crowson, Jr.
Appellate Court Clerk
ORDER
This matter is before the Court upon the state’s motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The
case before this Court represents an appeal from the trial court’s denial of the
petitioner’s petition for writ of habeas corpus. The record was filed on October 3, 1996,
and the petitioner filed his brief on October 22, 1996. The petitioner was originally
indicted on six counts of aggravated rape in January 1989, and the petitioner pled guilty
to the same in June 1989. In the present appeal, the petitioner, relying in part upon
State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996),
contends the judgment entered against him is void because the indictment failed to
allege the mens rea of the offense charged.
Having reviewed the state’s motion in light of the petitioner’s response
and the entire record on appeal, we conclude that the motion is well-taken and should
be granted. The trial judge dismissed the petitioner’s petition stating that “allegations
concerning the sufficiency of the indictment are not subject to habeas corpus relief.” It
is well established that challenges to the sufficiency of an indictment cannot be tested
in a habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn.
Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A
panel of this Court recently held the same in a capital case. Barber v. State, No.
01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 1995).
Nonetheless, we have considered the substance of the petitioner’s claim
and determine it to be without merit. Hill represents a direct appeal from a case
involving an indictment rendered subsequent to the 1989 revisions to the Criminal
Code. Conversely, the appeal in the present case stems from a denial of a petition for
writ of habeas corpus and involves an indictment issued prior to the 1989 changes in
the Code. The opinion in Hill was based upon this Court’s interpretation of T.C.A. § 39-
11-301(c), which was enacted in 1989. That statute provides, in pertinent part, that “[a]
culpable mental state is required within this title unless the definition of the offense
plainly dispenses with a mental element.” Prior to 1989, however, the Criminal Code
did not contain a comparable statute. Accordingly, the decision in Hill does not control
our review of the issue raised herein.
At the time of the offense in this case, aggravated rape was defined as
the “unlawful sexual penetration of another accompanied” by certain enumerated
aggravating circumstances, including that the victim is less than thirteen (13) years old.
T.C.A. § 39-2-603 (1982). The indictment at issue before us charged that the petitioner
“unlawfully, and feloniously, did commit the offense of Aggravated Rape by engaging in
the unlawful sexual penetration . . . of a child less than thirteen (13) years of age.” This
language was sufficient under the law as it existed at the time. As noted above, the
Criminal Code did not contain a provision similar to § 39-11-301(c) (1989). The
statutory requirements for an indictment were found in § 40-1802 (now § 40-13-202
(1990)), which provided simply that:
The indictment must state the facts constituting the offense in
ordinary and concise language, without prolixity or repetition, in such a
manner as to enable a person of common understanding to know what is
intended, and with that degree of certainty which will enable the court, on
conviction, to pronounce the proper judgment.
Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis
supplied), while addressing the sufficiency of an indictment charging the offense of
murder, our Supreme Court stated the following:
While it seems clear that the indictment in Witt was insufficient in
that it failed to charge an element, that the murder was committed
unlawfully, in either the language of the statute or common law or words
of equivalent import, the decision is confusing because of the language,
2
‘fatally defective in omitting the charge that the offense was committed
feloniously, or with malice aforethought; and containing no words of
equivalent import.’ It is clear, however, that had the indictment used the
words ‘feloniously’ or ‘unlawfully’, it would have been sufficient.
We agree with this proposition. By containing the words found in the language of the
statute, the indictment at issue here sufficiently apprised the appellant of the offense
charged under the law at the time, and is therefore valid. Thus, the petitioner’s attack
must fail.
For the reasons stated above, it is hereby ORDERED, pursuant to Rule
20, Rules of the Court of Criminal Appeals, that the judgment of the trial court
dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall
be assessed against the petitioner.
Enter, this the ___ day of January, 1997.
__________________________________
JOE B. JONES, PRESIDING JUDGE
__________________________________
PAUL G. SUMMERS, JUDGE
__________________________________
DAVID G. HAYES, JUDGE
3 | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350257/ | 265 Ga. 138 (1995)
JONES
v.
THE STATE.
S94A1161.
Supreme Court of Georgia.
Decided March 13, 1995.
John L. Tracy, for appellant.
Britt R. Priddy, District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Assistant Attorney General, for appellee.
CARLEY, Justice.
Based upon the fatal shooting of a single victim, appellant was indicted for the following six offenses: malice murder; felony murder with aggravated assault as the underlying offense; two counts of aggravated assault; possession of a firearm during the commission of a crime; and, possession of a firearm by a convicted felon. He filed a motion to bifurcate his trial on the latter count from his trial on the other five counts. The bifurcation motion was denied and he was brought to trial before a jury on all six counts. The jury found him guilty of felony murder and possession of a firearm by a convicted felon. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts.[1]
1. The evidence showed that appellant shot the victim three times while engaged in a dispute over a debt stemming from a drug deal. Appellant contended that the drug deal was the result of his work as a confidential informant. However, the county drug enforcement officers testified that they had not given appellant authority to make the deal and knew nothing about the transaction. Before he died, the victim identified appellant as the assailant. Appellant was also identified by the victim's girl friend. Appellant did not deny shooting the victim, but contended that he acted in self-defense. However, the victim was unarmed and appellant's claim of self-defense was contradicted by eyewitness testimony. Appellant has a prior felony conviction for possession of cocaine.
When construed most favorably for the State, the evidence was sufficient to authorize a rational trier of fact to find proof, beyond a reasonable doubt, of appellant's guilt of possession of a firearm by a convicted felon and felony murder while in the commission of an aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Several of appellant's enumerations of error relate to the denial of his bifurcation motion.
Pursuant to Head v. State, 253 Ga. 429, 431 (3) (a) (322 SE2d 228) (1984), a bifurcation motion should be granted where the count charging possession of a firearm by a convicted felon "is unrelated to" any other count in the indictment. However, Head, supra at 432 (3) (d), also provides that a motion to bifurcate should be denied where *139 the count charging the possession offense
might be material to a more serious charge as, for example, where the offense of murder and possession are charged in one indictment, and the possession charge might conceivably become the underlying felony to support a felony murder conviction on the malice murder count of the indictment. . . .
Here, both the malice murder and possession offenses were charged in one indictment and, because the homicide resulted from appellant's alleged use of the gun to commit an aggravated assault, the possession charge could support a felony murder conviction. See Ford v. State, 262 Ga. 602 (1) (423 SE2d 255) (1992). Accordingly, a verdict finding appellant guilty of committing felony murder with the possession offense as the predicate felony might be authorized if the malice murder and possession offenses were tried together. See Jolley v. State, 254 Ga. 624, 627 (2) (331 SE2d 516) (1985). Under the indictment and circumstances, such a felony murder could be considered "an included offense [of malice murder] as a matter of fact. [Cit.]" Burke v. State, 234 Ga. 512, 514 (2) (216 SE2d 812) (1975). It follows that, in ruling on appellant's motion to bifurcate, the trial court was authorized to find that the evidence might authorize a felony murder conviction on the malice murder count of the indictment, with the possession charge as the underlying felony. Head, supra at 432 (3) (d).
This principle established in Head is not limited to cases wherein the indictment charges malice murder as the only murder count. Nothing whatsoever in Head itself authorizes such a narrow construction of the applicability of its holding. By its express terms, Head refers generally to the case wherein malice murder and the possession offense are charged in the same indictment, without specifically excluding the case wherein additional alternative felony murder counts might also be contained in the indictment. In fact, this court has previously recognized the applicability of the principle to an indictment which, in addition to containing counts of malice murder and the possession offense, also alternatively charged the defendant with felony murder. See Williams v. State, 263 Ga. 135, 136 (1) (429 SE2d 512) (1993). In this case, felony murder with the possession offense as the predicate felony could be an included offense in the malice murder count as a matter of fact. Burke v. State, supra. Accordingly, the mere fact that appellant was alternatively indicted for felony murder with aggravated assault as the predicate felony would not prevent the possession charge from becoming the underlying felony supporting a felony murder conviction on the malice murder count. Head, supra at *140 432 (3) (d).
Here, the trial court did not give a charge on the possession offense as the predicate felony for a felony murder conviction and the jury found appellant guilty of felony murder with aggravated assault as the predicate felony. However, nothing in Head holds that a bifurcation motion must be granted unless the possession offense actually becomes the underlying felony which supports a felony murder conviction on the malice murder count of the indictment. All Head requires is that, at the outset of the trial when the motion is being considered, it is plausible that a felony murder conviction on the malice murder count could be supported by the possession offense. Head, supra at 432 (3) (d). It is immaterial that, at the conclusion of the trial, the possession offense ultimately did not serve that purpose. Since a charge on appellant's guilt of felony murder with the possession offense as the predicate felony would have been authorized as a possible verdict in the unbifurcated trial, the trial court's failure to have given such a charge is certainly not a basis for holding that appellant's bifurcation motion should have been granted. The failure to have given such a charge, coupled with the giving of a charge that the possession offense was not material to any other count of the indictment, was error which was beneficial to appellant, because the jury was thereby prevented from considering an additional count of felony murder as a viable alternative basis for convicting appellant.
Any suggestion that a finding of no error in the denial of appellant's motion to bifurcate will render Head meaningless is premised upon a misconstruction and misunderstanding of the holding in that case. Head was not a murder case. It was a case wherein an unbifurcated trial resulted in convictions for both armed robbery and the possession offense and, on appeal, the Court of Appeals affirmed. Head v. State, 170 Ga. App. 324 (316 SE2d 791) (1984). We granted certiorari and reversed, because the defendant's prior convictions had "nothing to do with any element of the robbery charge, except the forbidden (albeit perhaps the most illuminating) realm of character and propensity for violent crimes." Head, supra at 431 (2). In so holding, we specifically anticipated and found distinguishable a murder case, such as this, wherein the possession charge would be related to the other counts of the indictment, since it might plausibly become the underlying felony to support a felony murder conviction on the malice murder count. Accordingly, a holding that it was not error to deny appellant's bifurcation motion in this murder case is not only consistent with, but also is compelled by, the decision in Head. Head will continue to remain viable authority for the principle that a bifurcation motion should be granted in those cases wherein the possession charge is unrelated to another count in the indictment. A murder case, such as this, is not one of those cases. It follows that the trial *141 court correctly denied appellant's bifurcation motion.
3. On voir dire, the trial court did not abuse its discretion in refusing to allow appellant to ask whether the prospective jurors had previous personal experience in "collecting debts" which involved "hounding" and "threaten[ing] to kill" the debtor. Cobb v. State, 244 Ga. 344, 349 (5) (260 SE2d 60) (1979); Pinion v. State, 225 Ga. 36, 37 (4) (165 SE2d 708) (1969).
4. Appellant was not allowed to testify that, three hours before the fatal shooting, the victim claimed to have killed someone. The trial court's refusal to allow appellant to give this testimony is enumerated as error.
If the defendant in a murder case makes a prima facie case for justification, he is entitled to offer evidence of the victim's general reputation for violence. Bennett v. State, 254 Ga. 162, 164 (3) (a) (326 SE2d 438) (1985). However, such evidence must comport with the general rules of admissibility. Assuming without deciding that appellant's proposed testimony would relate to the victim's general reputation for violence, it nevertheless was clearly hearsay. Mallory v. State, 261 Ga. 625, 627 (2) (409 SE2d 839) (1991). Appellant urges that his proposed testimony would constitute admissible hearsay under OCGA § 24-3-3, since the previous claim attributed to the victim was a part of the res gestae of appellant's subsequent fatal shooting of the victim. However, the trial court found that the three-hour gap between the alleged claim by the victim and the fatal shooting by appellant rendered the former too attenuated to be considered a part of the res gestae of the latter. There was no abuse of discretion in this evidentiary ruling. Andrews v. State, 249 Ga. 223 (290 SE2d 71) (1982).
5. On direct examination, a witness for the State testified that he had seen appellant in possession of a gun prior to the fatal shooting, but did not believe that he saw appellant on "the day that [the victim] got shot." On cross-examination, appellant was not allowed to ask if the witness remembered giving a prior statement concerning what he "heard" on the day of the shooting. The trial court's refusal to allow appellant to pursue cross-examination on this topic of the witness's prior statement is enumerated as error.
Appellant urges that the cross-examination was a relevant attempt to lay the foundation for impeachment of the witness pursuant to OCGA § 24-9-83. However, the witness's testimony on direct that he did not believe that he had seen appellant on the day of the shooting is in no way inconsistent with any prior statement given by him concerning what he may have heard on that day.
Any testimony as to what the witness may have heard on the day of the shooting likewise would not be independently admissible as non-impeaching evidence. Such testimony would be hearsay and there was no attempt to show that it would come within the res gestae or *142 any other exception to the hearsay rule.
6. Appellant filed no pre-trial challenge to the admissibility of the inculpatory statement he had given to the investigating officer. At trial, the officer testified that appellant received the Miranda warnings and signed a written waiver before making the statement. There was no error in admitting appellant's statement into evidence over the objection that the officer's testimony was insufficient to lay the foundation therefor. Craver v. State, 246 Ga. 467 (1) (271 SE2d 862) (1980).
Judgments affirmed. All the Justices concur, except Benham, P. J., Fletcher and Thompson, JJ., who dissent.
FLETCHER, Justice, dissenting.
The majority opinion omits the critical fact in this case: the trial court ruled that the possession of a firearm by a convicted felon charge was not related to any murder charge. The effect of the majority opinion is to eliminate the bifurcation requirement in all murder cases in violation of a defendant's constitutional right to due process. See U. S. Const., amend. XIV; Ga. Const., Art. I, Sec. I, Par. I.
Marvin Kirk Jones moved to bifurcate the trial on Count 6 from the trial on the other five counts, arguing that the charge on possession of a firearm by a convicted felon was unrelated to any felony murder charge because the state had specified aggravated assault as the underlying felony. The trial court denied the motion, but in the jury charge instructed the jury to consider Count 6 separately from the other five counts because it was not related.[2]
1. In Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), this court recognized the prejudice to defendants when prior unrelated convictions are introduced at trial that have nothing to do with any element of the charge except the "forbidden . . . realm of character and propensity for violent crimes." Id. at 431. As a result, this court established procedures that would permit the admission of prior convictions yet protect the rights of the accused. Although three judges thought that the trial on the possession charge should be severed and held before a different jury, a majority concluded that bifurcation would satisfy due process. Under Head, if the charge of possession of a firearm by a convicted felon is unrelated to another count, the trial court should bifurcate the proceedings so that the jury should decide *143 the more serious charge first, then undertake to decide the possession of firearms charge.
The facts in this case meet the requirements for bifurcation under Head. Although Jones' prior conviction for possession of cocaine was material to the firearm possession charge, it was irrelevant to the murder charge, as the trial court ruled. The only purpose for trying the firearm possession count during the murder trial was to prejudice Jones by introducing evidence that he was a convicted felon. Moreover, the evidence was harmful given Jones' theory that he was working as a confidential drug informant and shot the victim in self-defense. Because evidence of Jones' prior criminal record was not material to the murder charges and was prejudicial, the felony murder conviction should be reversed.
2. The majority opinion eliminates the requirement of bifurcation in any murder trial through a broad reading of an example used in Head. The court in Head concluded that bifurcation was not needed in cases
where the offense of murder and possession are charged in one indictment, and the possession charge might conceivably become the underlying felony to support a felony murder conviction on the malice murder count of the indictment.
Id. at 432.
This example does not apply here. Jones was indicted for both malice murder and felony murder. The trial court instructed the jury that if it found Jones not guilty of malice murder, it was to consider the felony murder charge under Count 2. As part of the felony murder charge, the trial court defined the offense of aggravated assault, the underlying felony listed in the indictment. These facts alone indicate that the possession charge could not "conceivably become the underlying felony to support a felony murder conviction on the malice murder count of the indictment." No jury would spontaneously consider the possession charge as an underlying felony to felony murder when the indictment included a separate felony murder count with a different underlying felony. The facts in this case, however, are even stronger because the trial court directed the jury that it could not consider Count 6 along with any other count. Therefore, the trial court concluded as a matter of law that the possession charge was not material to the more serious charge of murder. Given this conclusion, it is irrelevant that it is "plausible" that a possession offense could support a felony murder conviction on the malice murder count. Due process requires more than plausibility, particularly when the record demonstrates that the "plausible" was impossible. Where the trial court has instructed the jury that the firearm possession charge could *144 not be considered as part of any other charge, it is inconceivable that a jury would ignore its instructions and consider the possession charge as the underlying felony for felony murder on any count of the indictment.
I would hold that bifurcation is required when the indictment lists malice murder and felony murder as alternative murder counts and the underlying felony on the felony murder count is a felony other than possession of a firearm by a convicted felon. A failure to bifurcate in this situation violates due process.
I am authorized to state that Presiding Justice Benham and Justice Thompson join this dissent.
NOTES
[1] The crimes occurred on November 7, 1992 and appellant was indicted on June 24, 1993. The guilty verdicts were returned on November 18, 1993 and, also on that date, the judgments of conviction were entered and the life and five-year sentences were imposed. Appellant filed a timely motion for new trial which was denied on March 24, 1994. His notice of appeal was filed on April 8, 1994. The case was docketed in this Court on April 22, 1994 and was orally argued on September 19, 1994.
[2] The trial court stated:
[N]ow, the fact here in Count Number Six, that mentions that he is a convicted felon. That has nothing to do with the other charges against him, the other five counts. You will not consider that as having anything to do with the other counts. In other words, that fact has nothing to do with the other counts. You consider the other counts separately from that count . . . but in this Count Number Six, that does not have anything to do with your other counts. That is considered separately. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350263/ | 454 S.E.2d 108 (1994)
193 W.Va. 63
Robert Carl CRAIN, et al., Petitioners Below, Appellees,
v.
Donald E. BORDENKIRCHER, Warden, et al., Respondents Below, Appellants.
No. 16646.
Supreme Court of Appeals of West Virginia.
Submitted September 14, 1994.
Decided December 15, 1994.
*109 James F. Companion, Schrader, Recht, Byrd, Companion & Gurley, Barbara L. Baxter, West Virginia Legal Services Plan, Inc., Wheeling, for appellees.
Rita A. Stuart, Sp. Asst. Atty. Gen., Charleston, for appellants.
WORKMAN, Justice:
This case is before the Court upon the appeal of Donald E. Bordenkircher, as Warden for the West Virginia Penitentiary ("Penitentiary"), et al.,[1] ("Appellants"), from the September 2, 1993, memorandum order of the Circuit Court of Marshall County[2] which granted a "credit on sentence" from the minimum term of indeterminate sentences or from the fixed term of determinate sentences of inmates who have or will have served time at the Penitentiary after July 1, 1992. After reviewing this matter, we conclude that the circuit court's ruling was in error, and accordingly, we reverse.
On February 2, 1993, the Appellees, Robert Crain and other Penitentiary inmates, filed a motion for time cuts with the circuit court, wherein they sought the following relief:
1. Reduced parole eligibility dates for all qualified inmates,
2. Reduced discharge dates for all qualified inmates, and
3. Setting parole eligibility dates for those inmates serving life without mercy sentences.
After considering the written memoranda of the parties on the issue, the circuit court issued the following order:
It is ADJUDGED and ORDERED that all inmates now in the custody of the Commissioner of Corrections, or hereafter committed to the custody of the Commissioner of Corrections shall be given commutation from their sentences for having served time at the West Virginia Penitentiary for Men at Moundsville. Such commutation of sentence shall be called `credit on sentence'. The `credit on sentence' shall be deducted from the minimum term of indeterminate sentences or from the fixed term of determinate sentences. Each inmate who serves time, or who served time, actually incarcerated at the West Virginia Penitentiary for Men at Moundsville after July *110 1, 1992, shall receive one day of credit on sentence for each day he is incarcerated. No inmate sentenced to a life sentence shall receive credit on sentence under this order. However, inmates serving life sentences with mercy and recidivists serving life sentences, are given a `credit on sentence' against the minimum sentence that they must serve to be eligible for consideration for parole. An inmate under two or more consecutive sentences shall be allowed credit on sentence as if the several sentences, when the maximum terms thereof are added together, were all one sentence.
The circuit court expressly stayed the effective date of the order for sixty days to permit the filing of this appeal.
I.
The only issue before the Court is whether the September 2, 1993, order improperly granted certain Penitentiary inmates a "credit on sentence." The Appellants contend that the order is contrary to this Court's prior decisions and frustrates the efforts of the Division of Corrections in its continued efforts to comply with this Court's scheduled mandates. Further, the Appellants maintain that this Court has previously considered the possibility of early release of prisoners from the Penitentiary and determined such release to be inappropriate. In contrast, the Appellees argue that the ordered time cuts properly fell within the scope of the lower court's inherent equitable powers to fashion whatever remedy necessary to uphold the strictures of the Eighth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution. In addition, the Appellees contend that the remedy ordered by the trial court in no way conflicts with the law established by this Court in prior related proceedings and that compelling institutional and public policy considerations warrant an affirmance of the circuit court's order.
* * * * * *
Since 1988 we have repeatedly set forth the following holding as the basis for each Crain decision: "This Court has a duty to take such actions as are necessary to protect and guard the Constitution of the United States and the Constitution of the State of West Virginia." Syl.Pt. 2, Crain v. Bordenkircher, 180 W.Va. 246, 376 S.E.2d 140 (1988) (Crain III).[3] To fully appreciate the nature and extent of this Court's ongoing effort to monitor the situation at the Penitentiary in conjunction with the construction of the Mount Olive Correctional Complex ("MOCC") and the role we have undertaken in these proceedings, we review the history of Crain.
The first Crain proceeding originated in 1981 when Penitentiary prisoners sought a writ of prohibition, alleging that the conditions of their confinement constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution. This Court appointed the Honorable Arthur M. Recht to conduct a hearing on the issues raised by the Petitioners. Following a hearing, Judge Recht issued a Final Order which concluded that the conditions at the Penitentiary constituted cruel and unusual punishment. Judge Recht made certain recommendations to bring the Penitentiary conditions within constitutional standards and ordered the Department of Corrections to devise a compliance plan targeted at achieving constitutional standards.
Crain I began when the inmates appealed the successor special judge's[4] approval of the *111 Department of Corrections' compliance plan. The sole issue before us in that case was whether the compliance plan met the detailed provisions set forth in the Final Order prepared by Judge Recht. Finding that the compliance plan did not completely comport with Judge Recht's order, we directed that a revised compliance plan be submitted by the Department of Corrections within 120 days. 176 W.Va. 338, 365, 342 S.E.2d 422, 450 (1986). Rather than assigning the continuing duties of reviewing the revised compliance plan and furnishing this Court with reports and recommendations to a circuit judge, we deemed it necessary to appoint a special master to assume these duties.[5]
Crain II was instituted to resolve the issue of who was required to compensate the special master. We concluded in that case that the Department of Corrections, as the "party whose conduct necessitated the reference to the special master or monitor," was required to bear such expenses. Syllabus, 178 W.Va. 96, 357 S.E.2d 778 (1987).
The subject of Crain III was the declaration by the Department of Corrections that it could not comply with the revised compliance plan[6] due to lack of funding. Crain v. Bordenkircher, 180 W.Va. 246, 247, 376 S.E.2d 140, 141 (1988). Noting that "the conditions have not improved, nor has the situation become any less unconstitutional since we last directed the Department of Corrections to remedy the problems[,]" we "order[ed] that the State Penitentiary at Moundsville be closed by July 1, 1992." Id. at 247-48, 376 S.E.2d at 141-42. Under the Court's authority to enforce the Constitution, we issued a rule to show cause against various state officers as to why this Court should not place the Penitentiary in receivership, grant the receiver power to construct a new facility, and issue a writ of mandamus requiring the State Building Commission to provide for the financing of the construction of the new facility. Id. at 250, 376 S.E.2d at 144.
Crain IV again recognized the numerous delays in constructing a new facility and expressly directed the Department of Corrections to submit to the special master a plan containing specific proposals for the construction of a new penitentiary by November 14, 1989.[7] 181 W.Va. 231, 234, 382 S.E.2d 68, 71 (1989).
Crain V involved the appearance of the parties before this Court on April 3, 1990, for the purpose of providing a status report on the progress made towards implementing the plan for replacing the Penitentiary. 182 W.Va. 787, 789, 392 S.E.2d 227, 229 (1990). At the hearing, we indicated that "the State is progressing as it should to comply with the mandates of this Court." Id. at 790, 392 S.E.2d at 230. We also directed that the Directors of the Department of Safety and the West Virginia Regional Jail and Correctional Facility Authority be made parties to the case. Id.
Crain VI was yet another opportunity for this Court to be provided a status report concerning the prison construction project. We observed that the process of reviewing these status reports is a "continu[ation] [of] our on going [sic] general supervision of the project as a result of our obligation to remedy the constitutional deficiencies that we found in the penitentiary in our original Crain decision...." 185 W.Va. 603, 605, 408 S.E.2d 355, 357 (1991). We adopted the special master's recommendations that this Court approve the architectural plans, subject to modifications for budgetary purposes, and we agreed with his recommendation that any future modifications of the architectural plans be submitted to the special master for approval prior to implementation. Id.
A status report on February 4, 1992, resulted in Crain VII. The Court was apprised at this time that certain preliminary *112 site preparation and construction work on the new prison had been completed, but that bids received for the next construction phase were over budget by approximately $7,000,000. No. 16646, slip. op. at 2 (W. Va. filed February 27, 1992) (per curiam order). After hearing that the Appellants were considering several options for dealing with the over-budget bids, we concluded that the Appellants were taking all reasonable steps to comply with our orders and continued the matter until May 5, 1992.[8]Id.
On June 2, 1992, the parties appeared before this Court to present a status report and the Appellants requested that the Penitentiary's closure date scheduled for July 1, 1992, be extended for an additional twenty-seven months. 187 W.Va. 596, 420 S.E.2d 732 (1992) ("Crain VIII"). Based on the anticipated construction period, we concluded that an additional delay of closure for twenty-four months was justified and, accordingly, stayed the closure order for an additional two years. Id. at 598, 420 S.E.2d at 734.
The next three Crain decisions concerned status reports on the operational procedures plan and the proposed budget for funding the MOCC facility. In Crain IX, we directed the Appellants to submit a completed operational procedures plan for MOCC to the special master and continued the matter until May 4, 1993. 188 W.Va. 406, 408, 424 S.E.2d 751, 753 (1992). Crain X resulted from a hearing on June 1, 1993, wherein the parties reported that while an agreement dealing with most of the major administrative policy issues included in the operational procedures had been reached, the final plan was still incomplete due to disagreement over various policies.[9] 189 W.Va. 588, 433 S.E.2d 526 (1993). "In conformity with our continuing supervisory role," we ordered the parties to submit their completed operational procedures plan to the special master by November 15, 1993 for arbitration. Id. at 590, 433 S.E.2d at 528. We further directed the Appellants to advise the special master regarding the transition plan to the new facility. Id. In Crain XI, the parties submitted a joint status report to the Court on February 25, 1994, indicating that the parties were in agreement on all the operational procedures at the MOCC with the exception of the monitoring of the inmates' telephone calls and the proposal that the inmates' outgoing mail carry the MOCC name. 191 W.Va. 343, 345, 445 S.E.2d 730, 732 (1994). We agreed with the special master's recommendations that both of these proposals by the Appellants were reasonable correctional policies and scheduled the matter for further hearing on June 28, 1994.[10]Id.
At issue in Crain XII, the most recent Crain decision,[11] was the Appellants' request that we modify our June 25, 1992, decision requiring the closure of the WVP by July 1, 1994. 191 W.Va. 583, 447 S.E.2d 275 (1994). Responding to the request for a four-month extension to the closure of the Penitentiary, we stated:
with reluctance, we allow an additional four months to close the WVP and transfer inmates to the MOCC, which means that the period for completion of the facility will end on October 31, 1994. This matter will be set for a further hearing before this Court on Tuesday, November 1, 1994. At that hearing, we expect a report that all matters relevant to the transfer to the MOCC are completed and that the administrative rules are finished. Should any condition arise which would prevent the transfer to the new facility by October 31, *113 1994, or the failure to finish the administrative rules, the parties immediately should report the same to this Court. It is possible that the failure to comply with the mandates of this opinion may result in a rule to show cause for contempt.
Id. at 585-86, 447 S.E.2d at 277-78.
II.
We now address whether the circuit court improperly granted certain inmates at the Penitentiary a "credit on sentence." At the crux of this issue is the question of whether the circuit court had the authority to grant Penitentiary inmates a reduction in sentence.[12]
As grounds for its decision to issue the sentence credits, the trial court relied on this Court's holding in syllabus point two of Crain III which recognized that the West Virginia Supreme Court of Appeals "has a duty to take such actions as are necessary to protect and guard the Constitution of the United States and the Constitution of the State of West Virginia." 180 W.Va. at 246, 376 S.E.2d at 140. Based on a "literal interpretation" of this holding, the circuit court concluded that it was required to issue sentencing credits from the original date scheduled for the Penitentiary's closure.
As further support for its position, the circuit court relies on Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (1980), a case in which inmates at the Huttonsville Correctional Center ("HCC") sought unconditional release from confinement, alleging that they had been deprived of their federal and state constitutional rights to due process of law and freedom from cruel and unusual punishment following a riot at the prison. After determining that the inmates' rights had been violated,[13] we examined what remedy would be appropriate under the facts of that specific case. Id. at 679, 271 S.E.2d at 331. We initially dismissed the concept of an unconditional release of the affected inmates, noting that "[a]n exhaustive search of habeas corpus cases involving cruel and unusual punishment of prisoners failed to discover any case wherein an abused prisoner was unconditionally released." Id. at 680, 271 S.E.2d at 331.
We then ordered the Department of Corrections to
provide us a plan, tailored to each aggrieved individual's present status and the effronteries which he suffered as testified to in his deposition or proved by other evidence, which reduces the degree of restraint to which each such individual is presently subject. Such reductions in length and conditions of confinement might include, in appropriate cases, release from parole restrictions for persons already paroled; release on parole or on conditions comparable to parole for persons still incarcerated; reduction in length of sentences and transfer to less restrictive facilities or programs.[14]
Id. at 683, 271 S.E.2d at 332-33. (emphasis added, footnote omitted, and footnote added). We noted that
We do not, except with great reluctance, discharge prisoners whose constitutional right deprivations do not go to their guilt or innocence of the underlying charges for which they were incarcerated. But we will not subject persons to cruel and unusual punishment. Those activities must be permanently corrected or else the government may be enjoined from putting any convicted criminals in jail or prison.
Id. at 684, 271 S.E.2d at 333. Finally, we made it clear that we would review the plans "and if they are acceptable make such further *114 orders as may be appropriate to effectuate them." Id. at 683, 271 S.E.2d at 333.
While Harrah indicated that sentence reduction might be a remedy for cases in which cruel and unusual punishment conditions are found, the consideration of utilizing such remedy was expressly limited to those cases determined by this Court to be appropriate. The suggested reduction in the length of sentences for certain inmates in Harrah was never intended as a remedy to be methodically utilized in cases involving cruel and unusual punishment, without case by case consideration. Neither did we intend our comment regarding sentence reduction to be construed as a remedy available on a broad scale basis to the circuit courts of this state. An examination of Harrah reveals that the ultimate decision regarding any remedy, including the possibility of sentence reduction, was specifically retained by this Court. See 165 W.Va. at 683, 271 S.E.2d at 333.
The circuit court also relied on language, included in Crain III, which noted, "[w]e feel compelled to point out that the release sought by the petitioners may be the only remaining alternative to this Court after July 1, 1992, if the conditions of confinement are not remedied." 180 W.Va. at 248, 376 S.E.2d at 142. Although we referenced such a drastic remedy, despite numerous opportunities to do so (Crain IV to XII), we have never opted to impose such a severe solution, preferring instead to direct the completion of the MOCC's construction on as timely a basis as we had the ability to effect. Moreover, our response to the Petitioners' request in Crain III for unconditional release was made in the context that such action may become necessary if the legislative and executive branches failed to take action resulting in the construction of a new penal facility which would comply with constitutional standards. As is clear from the Crain history set forth in section I. of this opinion, the necessary actions were undertaken, upon our continual prodding, which enabled the financing of and completion of the MOCC.[15]
What is evident from the history of the Crain case, as set forth above, is that this Court has always maintained supervisory control and responsibility for overseeing the remedy necessary to alleviate the cruel and unusual conditions at the Penitentiary.[16] As is demonstrated by the history of the Crain case, we have continuously required the parties to apprise this Court as to the progress of the prison completion. Furthermore, we have served as the overseer, responsible for resolving numerous issues which arose during the course of the MOCC's construction. Notwithstanding the appointment of both special judges and a monitor to resolve seemingly unending issues related to such construction, we have never relinquished the ultimate and ongoing responsibility of seeing that the MOCC facility was constructed pursuant to constitutional requirements.
The remedy which this Court fashioned to correct the Penitentiary conditions which resulted in cruel and unusual punishment for the inmates was to close the prison following the construction of a new facility. While we are not unmindful that delays in the construction of the MOCC resulted twice in decisions by this Court to modify the closing date of the Penitentiary, both delays were found by this Court to be justified. Even the last modification of the closing date of the Penitentiary to November 1, 1994, which we reluctantly granted in Crain XII, did not cause us to reconsider our original remedy. 191 W.Va. at 585, 447 S.E.2d at 277.
Inherent in this Court's duty to take such actions as are necessary to protect and guard the Constitution of the United States and the Constitution of the State of West Virginia is the related duty to supervise all necessary actions through completion and the concomitant responsibility to revise and/or modify directives issued by lower courts pertaining to such actions. Since this Court retains the ultimate authority to effectuate the remedy which we created, we conclude *115 that the trial court improvidently granted a "credit on sentence" to certain inmates. As is clear from this Court's language in Harrah, it remains the duty of this Court to approve any remedies arising from a finding of cruel and unusual punishment. See 165 W.Va. at 683, 271 S.E.2d at 333. If the circuit court concluded that a sentence credit was warranted based on the finding of cruel and unusual punishment plus the delay in opening the MOCC facility, the wiser course of action, consistent with Harrah, would have been to submit such a plan for approval first to this Court prior to entering an order directing the same. It remains the duty of this Court to fashion the appropriate remedy arising from the Crain case.
Based on the foregoing, the decision of Circuit Court of Marshall County is hereby reversed and remanded for the entry of an order consistent with this opinion.
Reversed and remanded.
BROTHERTON, C.J., did not participate.
MILLER, Retired J., sitting by temporary assignment.
NOTES
[1] Mr. Bordenkircher is no longer the Penitentiary warden and the other originally named appellant, Joseph McCoy, is no longer the Commissioner of the Department of Corrections. See note 3, infra.
[2] As the circuit court notes in its order of September 2, 1993, "[s]pecific grievances concerning confinement were, and are, addressed under Crain on a case by case basis in the Circuit Court of Marshall County by the undersigned judge [Honorable John Madden]."
[3] As we noted in Crain X,
[t]he parties have agreed to continue styling the respondents in this case as Donald E. Bordenkircher, Warden, who was in charge of the Moundsville Penitentiary, and Joseph McCoy, who was the Commissioner of the Department of Corrections, when the original litigation arose in the Circuit Court of Marshall County in 1981. Likewise, Robert Carl Crain, one of the inmates in the penitentiary, is retained as the petitioner in the style.
189 W.Va. 588, 589, 433 S.E.2d 526, 527, n. 1 (1993). Because each of the cases are styled similarly, Crain v. Bordenkircher, we do not restate the style of each case in the body of this opinion.
[4] Following Judge Recht's resignation from the bench, we appointed Judge John F. Bronson to handle this matter.
[5] "By having the Special Master report directly to this Court, it is hoped that this matter may move more expeditiously than requiring it to be handled by a circuit judge." 176 W.Va. at 363, 342 S.E.2d at 448.
[6] The revised compliance plan was submitted in September 1986.
[7] That plan was approved by the special master and submitted before this Court on January 9, 1990. We accepted the plan and scheduled a hearing on April 3, 1990, "recognizing a need for continued review of its implementation." 182 W.Va. 787, 789, 392 S.E.2d 227, 229.
[8] By order of this Court, the case was continued until June 2, 1992.
[9] Some of the issues in dispute included: "(1) monitoring telephone calls; (2) identifying outgoing correspondence as being from a prison; (3) composition of the administrative segregation committee; (4) the nature and future use of administrative segregation; and (5) the need for a full-time dietician." 189 W.Va. at 590, 433 S.E.2d at 528.
[10] We stated further that we expected the parties to report at the June 28, 1994, hearing "that all matters are completed" and noted that "[t]he report also should include the completion date for the MOCC." 191 W.Va. at 346, 445 S.E.2d at 733 and n. 10.
[11] In actuality, yet another Crain decision was necessitated. In Crain XIII, this Court on November 29, 1994, again sought a progress report on the construction of the MOCC facility. See ___ W.Va. ___, 452 S.E.2d 732 (1994).
[12] The Appellants argue that the circuit court's order violates West Virginia Code § 28-5-27(k) (1992) which provides that there shall be no grants or accumulation of credit to any sentences of inmates, except as provided for in said statutory provision.
[13] We concluded that the inmates' due process rights were violated based on the way they were charged and brought before the disciplinary counsel. 165 W.Va. at 673, 271 S.E.2d at 328.
We also found that the inmates had been subjected to cruel and unusual punishment because of the continuous abuse and physical force exerted on inmates after the riot ceased. Id. at 679, 271 S.E.2d at 330.
[14] Only seventeen inmates were the subject of the remedy to be fashioned in Harrah. See 165 W.Va. at 688, 271 S.E.2d at 335, app. B.
[15] The MOCC was dedicated and opened on December 12, 1994.
[16] We note, as in Crain I, that the actual finding of the existence of cruel and unusual punishment arising from the conditions at the Penitentiary was never appealed to this Court. 176 W.Va. at 364, 342 S.E.2d at 449. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264530/ | 14 Cal.App.4th 1841 (1993)
18 Cal. Rptr.2d 597
THE PEOPLE, Plaintiff and Respondent,
v.
JOSE ELOY RODRIGUEZ ALANIZ, Defendant and Appellant.
Docket No. F017404.
Court of Appeals of California, Fifth District.
April 20, 1993.
*1842 COUNSEL
Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael *1843 J. Weinberger and Mary Jane Hamilton, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
THAXTER, J.
This case presents the question of when, and by which court, the two-year on-bail enhancement provided for in Penal Code[1] section 12022.1 should be imposed under the circumstances described in subdivision (d)[2] of that statute, i.e., when the defendant has reoffended (i.e., committed a "secondary" offense) while on bail or own-recognizance release on charges stemming from a previous (i.e., "primary") offense, and sentencing on the secondary offense precedes sentencing on the primary offense.
PROCEDURAL HISTORY
On October 15, 1990, a criminal complaint was filed in the Fresno County Justice Court, Firebaugh Judicial District, charging appellant Jose Eloy Rodriguez Alaniz with two felony and three misdemeanor counts. The two felony charges were driving with a blood-alcohol level of 0.08 percent or more with three or more similar prior convictions within the past seven years (Veh. Code, §§ 23152, subd. (b), 23175), and driving while under the influence with three or more similar prior convictions within the past seven years (Veh. Code, §§ 23152, subd. (a), 23175). The misdemeanors are not relevant to the instant appeal.
Apparently appellant was released on bail or his own recognizance on the Fresno County charges on October 22, 1990. Thereafter, on December 22, 1990, appellant was involved in a head-on collision during a high-speed pursuit in Merced County. Timothy Randolph, the driver of the other vehicle, died as a direct result of the collision. Appellant's blood-alcohol level was more than twice the legal limit.
Appellant was thereafter charged in Merced County with eight felony counts, including murder, gross vehicular manslaughter, driving under the *1844 influence, evading arrest and auto theft. A section 12022.1 enhancement was alleged as to each count. Appellant admitted the truth of these enhancements.
After a jury trial, appellant was found guilty of each of the eight charged Merced County offenses.[3]
At appellant's Merced County sentencing on November 13, 1991, the following discussion occurred as regards sentencing generally, and the section 12022.1 enhancements in particular:
"[PROSECUTOR]: The enhancement, Judge, I think you are just bound by case law which suggests that whenever there is a conviction for the secondary offense, which this is because an enhancement is proved, and the person is sentenced on the secondary offense prior to conviction of the primary offense, the imposition of the enhancement shall be stayed pending the imposition of sentence for the primary offense. The stay shall be lifted upon the court hearing the primary offense at the time of sentencing for that offense and shall be reported on the abstract of judgment.
"So we would just ask you to follow the law on that and stay that until the matter is resolved in the other county for the primary offense. With that I submit it.
"THE COURT: Thank you.
"[DEFENSE COUNSEL]: I would agree with that latter part, your Honor. That was included in my memo.
"THE COURT: Any cause why legal sentence should not be imposed at this time?
"[DEFENSE COUNSEL]: No cause, your Honor.
"THE COURT: Mr. Alaniz, will you please stand.
"On Count I it will be the sentence of the court that you be sentenced to fifteen years to life imprisonment[. On] Count VIII I'm going to sentence you to the mid term of two years to be served consecutively, on Count IX that will be six months, that will be served concurrently, that's the *1845 misdemeanor. Counts II, III, IV, V, VI and VII are stayed as is the enhancement pending the resulting finding down in the lower court."
Following his commitment to prison by the Merced court, appellant was returned to Fresno County on the charges pending there. On January 22, 1992, appellant admitted to the violation of Vehicle Code sections 23152, subdivision (a), and 23175 (driving under the influence with three or more similar prior convictions). The remaining counts were dismissed.
On February 19, 1992, appellant waived formal arraignment and was sentenced by the Fresno County Superior Court.
Initially, the court imposed a sentence of a two-year middle base term, run consecutive to the Merced determinate sentence as one-third the base term, or eight months. Appellant then informed the court that the section 12022.1 enhancement in the Merced case was "trailing."
The court examined the text of section 12022.1 and concluded that "[t]he defendant is probably right. The 12022.1 has been stayed pending sentencing on the primary offense. `The stay shall be lifted by the Court hearing the primary offense,' that's me, `at the time of the sentencing for that offense and shall be recorded in the abstract of judgment."
"THE COURT: So it's an eight months on this case, which is statutory one-third the mid term, and that's the primary offense, and that's because we can't change anything about it. The offense in Merced County is the principal term because it's an indeterminate 15-to-life. It is the principal term.
"[DEFENSE COUNSEL]: Yeah.
"THE COURT: So this case, as I see it, the only thing we can do without more clarity if anybody knows some case law on this statute, I'm not aware of any is to impose the eight months, lift the stay on the 12022.1 two-year, and the rest of the sentence from Merced has been imposed, so it gives him a two-year-eight-month determinate plus a 15-to-life indeterminate.
"[DEFENSE COUNSEL]: Okay. Now we can't lift the stay on Merced, they have to.
"THE COURT: That's exactly what the Penal Code says I have to do.
"[PROBATION OFFICER]: He has to.
*1846 "THE COURT: It's exactly what it says I have to.
"[DEFENSE COUNSEL]: Okay. In any event I'll be requesting that this sentence of two years be concurrent.
"THE COURT: All right. Submit it?
"[DEFENSE COUNSEL]: Submit it.
"THE COURT: It's imposed consecutive. I'll lift the stay on the 12022.1 or order that the case be remanded to Merced County for that purpose. It is it is the stated approval of this Court of the plea condition to result in a total sentence of two years eight months determinate to be followed by 15 years to life indeterminate for the second degree murder out of Merced county.
"If for any reason, legal or discretionary from another county this sentence is not imposed properly, I'll reserve jurisdiction to bring the case back and attempt to straighten it out. Okay?
"[DEFENSE COUNSEL]: Okay."
The court awarded appellant 666 days of presentence custody credits as calculated in the probation report, consisting of 444 actual local custody credits and 222 local conduct credits.
The Fresno abstract of judgment does not mention the lifting of the Merced County stay. In addition, it reflects that appellant was sentenced to a two-year term rather than only one-third (eight months) of the midterm for the conviction under Vehicle Code sections 23152, subdivision (a), and 23175.
On February 25, 1992, the Fresno court made a minute order vacating its previous order to transport appellant to Merced County for further proceedings. Instead, appellant was ordered transported to a state correctional institution.
DISCUSSION
I. Imposition of section 12022.1 enhancement.
(1) The issue presented here revolves around that portion of section 12022.1, subdivision (d) which directs that when the defendant is sentenced for the secondary offense, "imposition of the enhancement shall be stayed" and "[t]he stay shall be lifted by the court hearing the primary offense at the *1847 time of sentencing for that offense...." Appellant contends the enhancement has never been imposed and can only be imposed by the Merced court. Respondent argues that the Merced court imposed but stayed the enhancement, or at least made it "formally of-record" and that the Fresno court's lifting the stay completed the process.
If the record supported respondent's contention, we would agree with its argument. As we shall explain, we see no reason why the court sentencing for the secondary offense could not impose but stay execution of the enhancement pending sentencing for the primary offense. If the stay is then lifted by the court hearing the primary offense, nothing remains to be done.
There is, of course, a distinction between suspending imposition of sentence and suspending the execution of a sentence which has been imposed. This is best evidenced by the probation statutes. For example, section 1203.1 begins: "The court or judge thereof, in the order granting probation, may suspend the imposing, or the execution, of the sentence...." (See generally, 3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) §§ 1659-1661, pp. 1970-1972.) The same distinction apparently applies to enhancements. (See, e.g., People v. Bell (1984) 159 Cal. App.3d 323, 329 [205 Cal. Rptr. 568] [enhancements imposed, but execution partially stayed to comply with double-the-base-term limitation]; People v. Whigam (1984) 158 Cal. App.3d 1161, 1169 [205 Cal. Rptr. 227] [same].)
Thus, it is arguable that the Legislature intended to distinguish between a stay of imposition and a stay of execution for an "on-bail" enhancement attaching to a secondary offense conviction when the primary offense is still pending. A review of the statute's history, however, convinces us otherwise.
The procedural provisions of section 12022.1 dealing with cases in which sentencing on the secondary offense precedes sentencing on the primary offense were added by amendment in 1985. (Stats. 1985, ch. 533, § 1, p. 1905.) The amendment's legislative history shows that its purpose was to overrule certain appellate court decisions, specifically including Panos v. Superior Court (1984) 156 Cal. App.3d 626 [203 Cal. Rptr. 115]. (People v. Baries (1989) 209 Cal. App.3d 313, 321 [256 Cal. Rptr. 920].) In Panos, the issue was the propriety of imposing an on-bail enhancement under section 12022.1 when, at the time of sentencing on the second offense, there had been no conviction on the offense leading to the defendant's on-bail status. In other words, the setting in Panos was the same presented to the Merced court here. The difference was that when Panos was decided, section 12022.1 did not provide a mechanism for imposing the enhancement if sentencing on the secondary offense took place prior to conviction on the *1848 primary offense. The appellate court issued a writ of prohibition barring further proceedings on the enhancement. Notable in the opinion is the following language:
"The trial court determined and the People urge us to find that conviction on the earlier Los Angeles felony is a necessary predicate only for execution of the enhanced penalty and is not an essential element of the enhancement charge itself. Thus, the argument goes, if the court in Sacramento finds the section 12022.1 enhancement to be true as alleged even without proof the earlier felony resulted in a conviction, the enhanced penalty can be imposed but its execution must be stayed pending factual resolution of the Los Angeles charge.
"We decline to adopt the People's interpretation because it would add to the statute a dimension which is neither expressly included in nor suggested by its plain language. Penal Code section 12022.1 addresses various sentencing possibilities after a conviction on the earlier felony offense has been established, but it significantly fails to provide a mechanism for imposing and then staying service of the penalty enhancement pending a conviction on the earlier felony charge." (156 Cal. App.3d at pp. 629-630.)
As noted, the Legislature responded to Panos by amending section 12022.1 in 1985. The amendment was embodied in Senate Bill No. 343 which, in its final form, passed both houses of the Legislature without a dissenting vote. We have examined the legislative history of the bill. Nothing in that history indicates an intent to preclude the court sentencing for the secondary offense from imposing the enhancement and then staying its execution. On the contrary, several "Senate Floor Analyses" and committee analyses of the bill explicitly indicate the intent was to "allow the court to impose the two-year enhancement, once there was a conviction for the secondary offense, but the enhancement would be stayed pending conviction for the primary offense." (See Rep. of Sen. Com. on Judiciary, Sen. Bill No. 343 (1985-1986 Reg. Sess.) Apr. 16, 1985; Sen. Floor Analysis of Sen. Bill No. 343 (1985-1986 Reg. Sess.) May 1, 1985 and July 16, 1985.) These statements evidence an intent to provide what the Panos court noted was previously lacking ("a mechanism for imposing and then staying service of the penalty enhancement pending a conviction on the earlier felony charge"). (156 Cal. App.3d at p. 630.)
Moreover, several analyses of the bill indicate that there would be no "local" fiscal effect. However, if the court hearing the secondary offense may not stay execution of the enhancement but only its imposition, that court must, after the court hearing the primary offense has lifted the stay, hold another sentencing hearing to impose the enhancement. Under those circumstances there would obviously be some local fiscal impact.
*1849 The legislative history, in the light of Panos, clearly indicates that the intent of that portion of the 1985 amendment in question here was to preserve the enhancement until there had been convictions on both the primary and secondary offenses. That purpose is as well served by an order staying execution of the enhancement as it is by an order staying imposition at the first sentencing. And the failure of the Legislature to provide that the court hearing the primary offense should order transfer of the defendant to the other court after lifting the stay is some indication that the Legislature contemplated that the stay would be of the enhancement's execution so that further judicial action was unnecessary.
Even though the statute's language ("the imposition of the enhancement shall be stayed") appears unambiguous, "`"[t]he literal meaning of the words ... may be disregarded to give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole."' [Citations.]" (Leffel v. Municipal Court (1976) 54 Cal. App.3d 569, 572 [126 Cal. Rptr. 773].)
(2) We conclude that the Merced court could have imposed but stayed execution of the enhancement. Unfortunately, the record does not support respondent's contention that the Merced court did so. Before sentence was pronounced, the prosecutor advised the Merced court that "imposition of the enhancement shall be stayed pending the imposition of sentence for the primary offense." Defense counsel agreed with that statement. The court then imposed sentence on certain counts, but ordered that "Counts II, III, IV, V, VI and VII are stayed as is the enhancement ...." (Italics added.) The court never advised appellant his sentence was being enhanced, but that execution of the enhancement was stayed.
Respondent takes a fallback position, relying on language in a recent decision of our state's Supreme Court. In People v. McClanahan (1992) 3 Cal.4th 860 [12 Cal. Rptr.2d 719, 838 P.2d 241] the court held that an on-bail enhancement was subject to the double-the-base-term limitation of section 1170.1. In discussing the procedural provisions of section 12022.1, subdivision (d), the court said: "... Thus, a defendant can be convicted of the new (secondary) offense, the on-bail enhancement `proved,' and sentence on that offense pronounced-all before a conviction of the primary offense is obtained. Under those circumstances, imposition of the on-bail enhancement, already pleaded, proved, and formally of-record, is stayed pending conviction and imposition of sentence for the primary offense; ..." (McClanahan, supra, at p. 870.) Respondent suggests that in this case the Merced court "stayed the imposition of the on-bail enhancement while at the same time making it `formally of-record.'"
*1850 We are not persuaded. First, in McClanahan the primary and secondary offenses were consolidated for trial in the same court, so the stay provisions of section 12022.1, subdivision (d) were not in play, and the Supreme Court's comments about that subdivision do not constitute a holding. Additionally, the Supreme Court did not explain its "formally of-record" reference and gave no guidance on how an enhancement is made "formally of-record." The phrase seems to indicate some action in addition to merely staying the enhancement. Nothing in the Merced court's record, however, shows the court did anything other than stay the enhancement.
When the judgment in the instant action, including the order lifting stay, becomes final, the Merced court will be free to impose the enhancement, assuming the Merced judgment is affirmed on appeal. If the Merced judgment is affirmed, we believe the proper procedure would then be for this court to remand that case to the Merced Superior Court to deal with the enhancement.
The statute does not confer power on the Fresno court to do anything with respect to the enhancement other than lift the stay. We see no basis upon which the Fresno court can impose an enhancement to the Merced court's sentence when the enhancement was pleaded and proved in the Merced action.
The question remains whether the Fresno court, in the action under review, effectively lifted the stay ordered by the Merced court. As originally announced by the court below, the order was somewhat equivocal: "I'll lift the stay on the 12022.1 or order that the case be remanded to Merced County for that purpose." Subsequently, the court issued a minute order vacating its order of transfer to Merced County. As we read the record, the vacation order left standing that part of the court's announced order lifting the stay. Under section 12022.1, subdivision (d) the lower court was required to lift the stay and the record sufficiently manifests the court's intention to comply with the statutory mandate. Therefore, remand is unnecessary.
There are, though, two matters as to which the abstract of judgment is deficient. First, the abstract omits any reference to the order lifting the stay. Second, the abstract fails to reflect that the term imposed in Fresno County is subordinate to the Merced sentence, and that the two-year sentence imposed in Fresno is subject to the limitations of section 1170.1, subdivision (a); i.e., only one-third (eight months) of that term should be served consecutive to the determinate sentence imposed by the Merced court. We will direct the court below to amend the abstract accordingly.
*1851 II. Presentence credits.[*]
.... .... .... .... .... .... .... .
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to issue an amended abstract of judgment which (1) reflects the court's order lifting the stay previously ordered by the Merced County Superior Court; (2) reflects that the sentence imposed on the instant offense is subject to the limitations of section 1170.1, subdivision (a); and (3) reflects that the number of presentence custody credits awarded to appellant is 27 days, consisting of 19 days of actual local time and 8 days of local conduct credits. The clerk is further directed to transmit a certified copy of the amended abstract to the Department of Corrections.
Vartabedian, Acting P.J., and Buckley, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 976.1, this opinion is certified for publication with the exception of part II of Discussion.
[1] All statutory references are to the Penal Code unless otherwise indicated.
[2] Subdivision (d) of section 12022.1 provides:
"Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent."
[3] Appellant's appeal from the Merced convictions is pending in this court (F017003). After having given notice to the parties of our intention to do so, we take judicial notice of the record in that case.
[*] See footnote, ante, page 1841. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264548/ | 879 F.Supp. 47 (1995)
Elius REED, Plaintiff,
v.
CITY OF MERIDIAN POLICE DEPARTMENT, et al., Defendants.
Civ. A. No. 4:93-cv-162WN.
United States District Court, S.D. Mississippi, Eastern Division.
February 17, 1995.
Elius Reed, pro se.
Thomas Jones, Jr., Bourdeaux & Jones, Meridian, MS, for the Police Dept. of the City of Meridian, Miss., Meridian Police Officers.
Leonard McClellan, Mississippi Atty. General's Office, Jackson, MS, for Mike Moore.
Steven D. Orlansky, Watkins & Eager, Jackson, MS, for Thomas Goldman.
ORDER
WINGATE, District Judge.
Before the court are the separate motions of the defendants, the City of Meridian Police Department, Attorney Thomas Goldman, and The Mississippi Attorney General Mike Moore, all asking this court under Federal Rules of Civil Procedure 12(b)-(6)[1] to dismiss all of plaintiff's claims. Plaintiff Elius Reed, previously convicted of and sentenced for the criminal offense of armed robbery in state court, attacks that conviction and sentence and seeks recompense therefor under 42 U.S.C. §§ 1981,[2] 1983,[3] and 1985(3).[4] The *48 defendants' motions to dismiss are opposed by Reed. Having reviewed the motions and supporting memoranda, this court is persuaded to grant the defendants' motions to dismiss. The court's reasons are set out below.
Plaintiff Reed is proceeding pro se. The case of Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), commands this court to hold plaintiff's pro se complaint to less stringent standards than formal pleadings drafted by lawyers. This court has followed that command.
In 1976, Reed was arrested and charged with armed robbery. Reed was tried and convicted in Lauderdale County Circuit Court and on January 5, 1977, Circuit Judge Lester Williamson sentenced Reed to six years in the Mississippi State Penitentiary at Parchman, Mississippi. On January 14, 1977, attorney Thomas Goldman filed a notice of appeal on behalf of Reed. Reed, however, subsequently signed an affidavit relinquishing his right of appeal and indicated his willingness to be sent to Parchman to begin serving his sentence. Although Reed was sentenced to six years, he was placed in the state's "Shock Probation"[5] program and was required to serve only 90 days at Parchman. Afterwards, the Governor of Mississippi, then the Honorable Cliff Finch, issued an executive order suspending Reed's sentence. Reed's armed robbery conviction, however, was not expunged from his record.
More than a decade after his release from Parchman, Reed began a persistent effort to clear his record. First, Reed went to the state court system for help. There, Reed filed a motion for permission to file an out-of-time appeal. The Circuit Court Judge denied his request, and Reed appealed to the Mississippi Supreme Court. The Mississippi Supreme Court ordered Reed to seek relief under Miss.Code Ann. § 99-39-7.[6] Thereafter, Reed filed a motion for post-conviction relief. The trial court denied Reed's motion for post-conviction relief on the ground that he was not in custody when he filed the motion. Again Reed appealed. The Supreme Court affirmed the ruling of the trial court.
While awaiting the disposition of his appeal on his post-conviction relief motion, Reed filed this civil action seeking damages under 42 U.S.C. §§ 1981, 1983 and 1985 in this court. Reed alleged that two unknown white police officers, Goldman, and the Attorney General had played a role in his conviction and/or the subsequent denial of his request for post-conviction relief. The actions of these defendants, says Reed, violated his constitutional rights.
In Heck v. Humphrey, ___ U.S. ___, ___, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 *49 (1994), the United States Supreme Court spoke to situations where a plaintiff under the guise of § 1983 attacks the legal sufficiency of his criminal conviction. The Court declared, "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983."
In the instant case, Reed has failed to demonstrate that his conviction is invalid. Firstly, Reed waived his right of appeal, thereby depriving the Mississippi Supreme Court of an opportunity to reverse his conviction. Secondly, although then Governor Cliff Finch issued an executive order in 1977 suspending Reed's sentence, the governor did not order that the conviction be removed from Reed's records. Thirdly, Reed's conviction has not been declared invalid by any state tribunal. Fourthly, because Reed never sought habeas corpus relief in this court, this court has not had an opportunity to call his conviction into question by granting the writ of habeas corpus. Consequently, this court finds that because Reed's conviction has not been declared invalid, Reed is barred by the jurisprudence of Heck v. Humphrey from bringing this action under § 1983.
It follows then that since Reed cannot collaterally attack his conviction in a civil action under § 1983, he also cannot complain of the acts that gave rise to the alleged conspiracy to deprive him of his constitutional rights under § 1985. And, as to Reed's § 1981 claim, this court finds that Reed has not set forth sufficient facts to establish that any of the defendants in this action unlawfully interfered with his right to contract.
Even if this court were to find that Reed's conviction had been invalidated, or that Heck does not apply here, Reed still would not prevail against the motions to dismiss because the time for filing his current civil claims has lapsed. Reed attempts to skirt around the time bar by alleging that the defendants committed acts in furtherance of the alleged conspiracy as late as 1991, and as such his claims against them are not time-barred. Suffice it to say, this court is not so convinced. Here, Reed has merely launched another attack on his 1977 conviction under a different characterization.
The "usual rule is that federal cases should be decided in accordance with the law existing at the time of the decision." Goodman v. Lukens Steel Co., 482 U.S. 656, 662, 107 S.Ct. 2617, 2621, 96 L.Ed.2d 572 (1987). In 1977, under Miss.Code Ann. § 15-1-49, Mississippi's "catch-all" statute of limitations, the limitations period was six years. Reed filed this action in 1993, more than a decade after the statute of limitations had lapsed on his claim. As such, Reed's claims were untimely filed and cannot be heard by this court.
Accordingly, for all of the foregoing reasons, this court hereby grants the defendants' motions to dismiss.
SO ORDERED AND ADJUDGED.
NOTES
[1] (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(6) failure to state a claim upon which relief can be granted ...
[2] (a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
[3] Title 42 U.S.C. § 1983 provides in part:
Every person, who under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
[4] (3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protections of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
[5] "Shock Probation" was authorized by Miss. Code Ann. § 47-7-47.
[6] In general, § 99-39-7 sets forth the procedure a prisoner must follow in filing his motion for post-conviction relief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264549/ | 14 Cal.App.4th 1166 (1993)
18 Cal. Rptr.2d 496
THE PEOPLE, Plaintiff and Respondent,
v.
ALVIN THOMAS SNYDER, Defendant and Appellant. In re ALVIN THOMAS SNYDER on Habeas Corpus.
Docket Nos. A053181, A055888.
Court of Appeals of California, First District, Division Three.
April 6, 1993.
*1168 COUNSEL
Scott J. Drexel, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.
*1169 Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Ronald E. Niver and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MERRILL, Acting P.J.
Following a jury trial, appellant Alvin Thomas Snyder was convicted of two counts of inducing a child to engage in a lewd or lascivious act (counts 1 & 2/Pen. Code, § 266j);[1] two counts of forcible rape (counts 3 & 6/§ 261, subd. (2)); two counts of committing a forcible lewd act upon a child (counts 4 & 7/§ 288, subd. (b)); and one count of genital penetration with a foreign object (count 5/§ 289). Additionally, the jury found true the allegations that with respect to counts 4 and 7, appellant used the fear of immediate and unlawful bodily injury to perpetrate the crimes and caused bodily injury to the child victim in their commission (§§ 1203.066, subd. (a)(1) & (a)(2)). The trial court sentenced appellant to eighteen years in prison which included a middle term sentence of six years on count 3 (forcible rape) as the principal term plus two consecutive middle term sentences of six years each on counts 5 and 6 (penetration with a foreign object & forcible rape). The court imposed middle term six-year sentences on counts 1 and 2 (inducing a child to engage in a lewd or lascivious act) to run concurrently with each other and all other terms. Sentence on the remaining counts (4 & 7) as well as the attendant fear and bodily injury findings were ordered stayed pursuant to section 654. Appellant appeals from the judgment of conviction. On appeal, we affirm the judgment.[2]
APPEAL
I
On the Sunday of Memorial Day weekend 1990, 11-year-old Jackie M. had an argument with her mother and decided to spend the night with a friend. The friend, 12-year-old Heath P., was Jackie's boyfriend who resided in the same apartment complex along with his mother, Bobbi S.; his two brothers; and his stepfather, the appellant. Upon her arrival at Heath's apartment, Jackie noticed that appellant had been drinking heavily. It appeared that a birthday celebration was in progress in appellant's honor.
At some point in the evening, Jackie and Heath went into Heath's bedroom to play Nintendo. They began kissing. They were interrupted when *1170 appellant entered the room. Jackie went to the bathroom. Upon her return, appellant told her that Heath was "ready." Appellant then proceeded to direct the minors to get down on the floor and to remove their pants. They complied. He next told them to remove their underpants, which they did. Appellant then instructed Heath to get on top of Jackie and to "do it," whereupon Heath unsuccessfully tried to have sexual intercourse with Jackie. Because of his inability to have an erection, he was unable to penetrate Jackie's vagina. Heath began to get off of Jackie when appellant's wife, Bobbi, walked into the room. Bobbi demanded to know what was going on. As the minors dressed, appellant and Bobbi "had words."
Sometime later that evening, appellant, Jackie and Heath left the apartment and drove to a store in appellant's car. After returning home briefly, appellant drove the minors to a remote area and parked the car. He instructed Heath to get in the backseat of the car with Jackie and to "do it again." Once again, the minors tried unsuccessfully to have sexual intercourse. Appellant then ordered Heath to return to the front seat. He said, "Do you want me to do it for you?" and proceeded to climb into the backseat to take Heath's place. Appellant ignored Jackie's protests and unzipped his pants. He then forcibly penetrated Jackie's vagina, twice with his penis and once with his finger. He also kissed her on the breasts and tried to kiss her in the genital area. Throughout the assault, Jackie attempted to fight off appellant. At one point, appellant choked her, grabbing her neck hard and pushing her down.
The following morning, Jackie told Bobbi what had happened and Bobbi took her to the Vacaville Police Department. Medical examination and expert analysis disclosed bruising on Jackie's neck and sperm in her vagina. Additionally, police found "some suspected semen stains" in the crotch area of appellant's overalls.
II
On the first day of trial, appellant's trial attorney, Jane Burleson, placed on the record the contention that a plea bargain had been offered to appellant by the district attorney's office prior to the preliminary hearing, but that appellant's counsel at the time, Robert Bernstein, had failed to communicate that offer to appellant.[3] Burleson said that the offer included a promise of no commitment to state prison. According to Burleson, appellant denied being advised of the offer and said if he had been so advised, he would have accepted it. Burleson indicated that she was stating this for the record "potentially for future reference." Burleson took no further action in regard to the claim except to remind the court at sentencing of the missed plea bargain.
*1171 Now, in the instant appeal, appellant claims ineffective assistance of counsel based on the failure of his original counsel in the case, Bernstein, to communicate the offered plea bargain to him. Appellant additionally brings this issue before us by way of a petition for writ of habeas corpus which has been consolidated with this appeal.
(1) As a rule, when the appellate record does not, or cannot, reflect the grounds for a claim of ineffective assistance of counsel, the issue is appropriately raised by a petition for writ of habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal. Rptr. 732, 590 P.2d 859].) Here, other than the aforementioned statements by appellant's trial counsel, Burleson, there is nothing in the appellate record in relation to appellant's claim. Based on this, it is our determination that the issue of ineffective assistance of counsel cannot be properly ruled upon in the appeal. Accordingly, we address it solely in the context of the writ petition. And in this context, we have determined that there are factual issues which need to be resolved relative to appellant's claim. Accordingly, as we shall explain, we are issuing an order to show cause and are transferring the petition for writ of habeas corpus to the superior court for an evidentiary hearing.
III
At trial, Jackie testified that she first reported the rape to appellant's wife, Bobbi. According to the victim, following the assault, she and Heath dropped appellant off at a friend's house and then returned to Heath's apartment. Jackie said she fell asleep on a couch in the living room where she remained until the next morning when she was awakened by Bobbi. Jackie said she told Bobbi what had happened, whereupon Bobbi took her to the police station.
Jackie's testimony in this regard was corroborated by Bobbi. Over defense counsel's objection, Bobbi was permitted to give the following testimony relative to what Jackie told her on the morning following the crime:
"[Question:] What did Jackie say to you?
"[Answer:] She said that, `He made me do it.'
"[Question:] And was this in response to a question that you had asked her?
"[Answer:] No.... I think I might have asked her, I don't remember, but I asked her, `What did you all do?'
*1172 ".... .... .... .... .... .... ....
"... And she said, `Oh, nothing,' or something like that. And then I looked back at her and she said, `He made me do it.'
"I said, `Do what, Jackie?'
"She said, `You know.'
"I said, `No, I don't know. You tell me.'
"And she said, `He made me have sex.'"
(2a) Appellant claims that this testimony constitutes inadmissible hearsay and is grounds for reversal. We disagree.
(3) "In prosecutions for sex offenses, proof of the fact of recent complaints by a minor victim is admissible as original evidence and is not hearsay. [Citations.] `[I]f the statement was only admitted to show that a complaint was made by the victim rather than to show the truth thereof, then the evidence is not hearsay at all. [Citations.]' [Citation.] [¶] The `recent complaint' doctrine admits testimony by third persons that the victim complained of a sex act by the defendant on the ground that `[i]t is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.' [Citations.]" (People v. Meacham (1984) 152 Cal. App.3d 142, 158 [199 Cal. Rptr. 586].)
(2b) Here, the testimony was properly admitted for this purpose, the trial court explaining to the jury that Bobbi's testimony about Jackie's statements was admitted into evidence only to show that they were made, and not for the truth of their content. Additionally, the jury was instructed that evidence admitted for a limited purpose can only be considered for that purpose.
Appellant nevertheless claims error. He argues that Jackie's statements to Bobbi were not made soon enough following the assault to qualify as a "fresh complaint." He points out that while there were other people at the apartment when Jackie and Heath returned following the incident, Jackie waited all night, until Bobbi returned to the apartment the next morning, to tell someone about the incident.
We reject appellant's argument. We find the gap in time between Jackie's return to the apartment on the night in question and her statement to Bobbi *1173 the next morning compatible with the doctrine. The record indicates that on the day of the assault a serious argument had taken place between Jackie and her own mother. The record further establishes that Jackie and Bobbi were friends. Thus, it is entirely understandable that the minor would have chosen to confide in Bobbi and to have waited for her return. The only other people at the apartment on the night in question were two men who were sleeping and whom Jackie said she did not know. (4) As a rule, the "complaint doctrine" in sex cases is distinct from the spontaneous statement exception to the hearsay rule. "Thus, a short delay in making a complaint affects only the weight of the testimony and not its admissibility. [Citations.]" (People v. Meacham, supra, 152 Cal. App.3d at p. 158.)
(2c) Appellant additionally urges that Jackie's statements do not qualify as a fresh complaint because they were not made voluntarily but in response to questioning by Bobbi. We find appellant's argument unpersuasive.
The key inquiry is whether the statements were voluntary. (People v. Burton (1961) 55 Cal.2d 328, 351 [11 Cal. Rptr. 65, 359 P.2d 433]; People v. Meacham, supra, 152 Cal. App.3d at p. 160.) And here, it appears they were. When Bobbi asked Jackie about what she and the others had done the night before, Jackie initially responded, "Nothing." Then moments later, she apparently blurted out the truth. Her statements were not the product of lengthy, probing questioning (In re Cheryl H. (1984) 153 Cal. App.3d 1098, 1129 [200 Cal. Rptr. 789], disapproved on other grounds in People v. Raley (1992) 2 Cal.4th 870, 891-895 [8 Cal. Rptr. 2d 678, 830 P.2d 712]), or intimidation or fear (People v. Fair (1988) 203 Cal. App.3d 1303, 1313 [250 Cal. Rptr. 486]; and People v. Ewing (1925) 71 Cal. App. 138, 143 [234 P. 917]). Nor was she in an emotional or agitated state when she made them. (People v. O'Donnell (1938) 11 Cal.2d 666, 670 [81 P.2d 939], disapproved on other grounds in People v. Friend (1958) 50 Cal.2d 570, 577 [327 P.2d 97].)
On appeal, the judgment is affirmed.
PETITION FOR WRIT OF HABEAS CORPUS
In his declaration in support of the petition for writ of habeas corpus, appellant's present counsel, Scott Drexel, declares that in his initial review of the case, he discovered the statement at trial by appellant's trial counsel, Jane Burleson, regarding the missed plea bargain and decided to undertake further investigation. He telephoned the deputy district attorney who made the offer of a plea bargain, Nancy Thomas. According to Drexel, Thomas confirmed the fact that an offer had been made. The offer reportedly *1174 consisted of Thomas's promise to drop all remaining charges if appellant pled guilty to one count of section 288, subdivision (a) (i.e., lewd or lascivious act upon a child). Thomas denied that she had additionally promised no commitment to state prison, but said she offered to submit the matter to the probation department for its report and recommendation and may have speculated, based on appellant's clean record, that he would not receive a prison sentence.
According to Drexel, Thomas said she made the offer sometime between appellant's arrest on May 28, 1990, and the preliminary hearing on June 13, 1990. Thomas thought she talked to Bernstein, appellant's attorney at the preliminary hearing, about it on two occasions. The second time she talked to Bernstein, he sought a plea bargain whereby appellant would plead guilty to a violation of section 261.5 (i.e., unlawful sexual intercourse). Thomas stated she rejected the counteroffer because she wanted appellant to have to register as a sex offender pursuant to section 290. Thomas said that Bernstein indicated that the original offer was not acceptable. Accordingly, she believed that the offer was rejected.
In his declaration, Drexel says he also talked to Bernstein by telephone. According to Drexel, Bernstein told him that although he could not specifically recall receiving the offer, "if he had received such a plea offer, he believes that he would have communicated that offer to petitioner and would have recommended that the plea offer be accepted."
Also attached to the petition is a declaration by appellant stating that the offer was never communicated to him by counsel and that if it had been, he would have accepted it.
In the past, a claim of ineffective assistance of counsel in the plea bargaining process has received a mixed response by our appellate courts. Some courts have held that so long as the accused ultimately received a fair trial, his or her essential constitutional guarantees have been observed and a defendant can ask for no more. Others have taken the position that some form of relief is mandated. Recently in In re Alvernaz (1992) 2 Cal.4th 924 [8 Cal. Rptr.2d 713, 830 P.2d 747], our Supreme Court provided us with guidelines for resolving this issue.
In Alvernaz, defendant was convicted of multiple robbery charges plus kidnapping for the purpose of robbery. He received concurrent sentences which included life imprisonment with the possibility of parole for the kidnapping offense, plus two years for a firearm-use enhancement. Defendant calculated that his prison confinement would be 16 years and 7 1/2 months *1175 before he would be eligible for parole. The conviction was affirmed by the Court of Appeal and review was denied by the Supreme Court. (In re Alvernaz, supra, 2 Cal.4th at p. 929.)
Thereafter, defendant petitioned the superior court for a writ of habeas corpus asserting that in making his decision prior to trial to reject a plea bargain offered by the prosecution, involving a substantially lesser sentence, he had been denied his right to the effective assistance of counsel. In support of his petition, he declared that he would have accepted the offered plea bargain, had he been competently counseled. The superior court issued an order to show cause and, after considering the petition and return, denied relief. The court determined that although the defendant had been misadvised by his counsel regarding the maximum sentence he faced in the event he failed to accept the offered plea bargain, he had not met his burden of establishing that he would have accepted the offer had he been competently advised. (In re Alvernaz, supra, 2 Cal.4th at p. 930.)
The defendant in Alvernaz renewed his petition before the Court of Appeal. In support of his petition, he added a number of supporting declarations. In his own declaration, he related the following facts: at the conclusion of the preliminary hearing the magistrate had said that he had serious reservations about the prosecution's proof but that there was enough to hold defendant to answer. Following the hearing, the plea offer was made. Defendant was informed by counsel that the prosecution had offered to permit him to plead guilty to one count of robbery with a four- or five-year maximum sentence, which would amount to a net sentence of two or two and one-half years, after deduction of worktime credits. When defendant asked counsel his opinion as to whether he should accept the bargain, counsel in essence advised him to reject the bargain because he believed they would win at trial. When defendant asked counsel what the maximum sentence would be if he rejected the plea bargain and went to trial and lost, counsel told him the maximum would be approximately eight years with a net sentence of four years. (In re Alvernaz, supra, 2 Cal.4th at pp. 930-931.)
In another declaration, defendant's trial counsel indicated that he had advised defendant that he could receive a life top sentence which would translate into actual time of approximately seven years. Counsel could not recall informing defendant about the possibility of receiving a total sentence of 16 to 17 years. He did remember that defendant was adamant in his claim of innocence. (In re Alvernaz, supra, 2 Cal.4th at p. 931.)
The Court of Appeal issued an order to show cause and, thereafter, denied the petition. The court found that defendant had met his burden of establishing: (1) he was not competently counseled as to the consequences of *1176 rejecting the offered plea bargain; (2) the likelihood he would have accepted the offer, had he received competent advice; and (3) the likelihood that the trial court would have accepted the plea bargain. Nevertheless, the Court of Appeal held that since the defendant received a fair trial, he had not as a matter of law been prejudiced by his counsel's incompetence, and reversal therefore was not required. "The [Court of Appeal] reasoned that the purpose of the constitutional guarantee of effective assistance of counsel is to preserve basic trial rights; by electing to proceed to trial and receiving the benefit of a fair trial, petitioner was not denied any rights to which he was constitutionally entitled." (In re Alvernaz, supra, 2 Cal.4th at pp. 932-933.)
Defendant then petitioned the Supreme Court. Although the petition was ultimately denied, the Supreme Court held, in contrast to the Court of Appeal, that "the rendering of ineffective assistance by counsel, resulting in a defendant's decision to reject an offered plea bargain and proceed to trial, constitutes a constitutional violation which is not remedied by a fair trial." (In re Alvernaz, supra, 2 Cal.4th at p. 936.)
(5) (See fn. 4.), (6) The Alvernaz court said to demonstrate that a defendant has received constitutionally inadequate representation by counsel, he or she must show: (1) that counsel's representation was deficient;[4] and (2) that counsel's deficient performance subjected him or her to prejudice. To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel's deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court. In order to establish that a defendant would have accepted the bargain but for counsel's deficient performance, the court said the defendant must do more than simply declare this as a fact following his or her conviction. The Alvernaz court set forth the pertinent factors to be considered by a court in determining whether a defendant would have accepted the offer. It found that the showing by defendant in that case was insufficient in this regard. (In re Alvernaz, supra, 2 Cal.4th at pp. 936-937.)
(7) As part of its decision, the Alvernaz court outlined what the remedy should be in a case where ineffective assistance of counsel has resulted in a defendant's decision to reject an offered plea bargain and proceed to trial. The court said: "After the granting of relief by the trial court (on a motion for new trial or in a habeas corpus proceeding) or by an appellate court, the district attorney shall submit the previously offered plea bargain to the trial *1177 court for its approval, unless the district attorney within 30 days elects to retry the defendant and resume the plea negotiation process. If the plea bargain is submitted to and approved by the trial court, the judgment shall be modified consistent with the terms of the plea bargain." (In re Alvernaz, supra, 2 Cal.4th at p. 944.) The court acknowledged that this remedy does not necessarily give the defendant the benefit of the original bargain if the district attorney elects to retry the case and resume plea negotiations, but it does restore the bargaining process.
In the case at bench, unlike Alvernaz, there is a factual issue as to whether the plea bargain offer was ever communicated to appellant. Appellant says that he was not told of the offer, but his counsel seems to dispute this. Additionally, on the record before us, it cannot be determined whether appellant would have accepted the offer, if communicated to him. Under these circumstances, there are factual issues which must be resolved by the trial court at an evidentiary hearing.[5]
Accordingly, this matter is ordered transferred to the Superior Court of the State of California in and for Solano County. The Director of the Department of Corrections is ordered to show cause before that court, when ordered on its calendar, why the judgment should not be vacated. (See generally, In re Lawler (1979) 23 Cal.3d 190, 194 [151 Cal. Rptr. 833, 588 P.2d 1257]; In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4 [87 Cal. Rptr. 681, 471 P.2d 1].)
At the evidentiary hearing the trial court shall proceed as follows: If the trial court finds that (1) the plea bargain offer was communicated to appellant, or (2) there was a failure to inform appellant of the offer but he would not have accepted it even if it had been communicated to him, then the trial court shall deny the petition for writ of habeas corpus.
If, on the other hand, the trial court finds that (1) the plea bargain offer was not communicated to appellant, and (2) he would have accepted it had it been communicated to him, then relief should be granted, and consistent with the guidelines in Alvernaz, the district attorney shall be directed to submit the previously offered plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to retry appellant and resume the plea negotiation process. If the previously offered plea bargain is submitted to and approved by the trial court, the judgment shall be modified consistent with the terms of the plea bargain.
A certified copy of this order to show cause together with a copy of the petition for writ of habeas corpus filed herein, shall be served by this court *1178 on the Director of the Department of Corrections forthwith. The written return to this order to show cause and any traverse to the return shall be served and filed with the Solano County Superior Court on or before a date set by that court. The superior court is directed to appoint counsel to represent petitioner in this proceeding.
DISPOSITION
The judgment on appeal is affirmed. The petition for writ of habeas corpus is transferred to the Superior Court in and for Solano County for an evidentiary hearing consistent with this opinion.
Chin, J., and Werdegar, J., concurred.
NOTES
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] Consolidated with the appeal is a petition for writ of habeas corpus filed by appellant. By separate order in this opinion we have issued an order to show cause.
[3] The record indicates that Bernstein was appellant's counsel at the preliminary hearing.
[4] In a claim of ineffective assistance of counsel, the burden is on the defendant to prove, by a preponderance of the evidence, that he was ineffectively represented. (See Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, , 693, 104 S.Ct. 2052]; and People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)
[5] In most of the cases cited by the parties, the issues were initially placed before the trial court, either by way of a habeas petition or a motion for new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350374/ | 265 Ga. 100 (1995)
PEARSON
v.
PEARSON.
S94A1632.
Supreme Court of Georgia.
Decided March 6, 1995.
J. Stephen Schuster, for appellant.
Ellis, Funk, Goldberg & Labovitz, Eugene P. Chambers III, Stephen M. Worrall, for appellee.
BENHAM, Presiding Justice.
The parties were divorced in 1982 by a Texas judgment that required appellee/husband to pay $300 per month child support for the couple's minor son. Each party thereafter moved to Georgia, where appellant/wife filed a petition seeking modification of the child support award to an amount calculated pursuant to the child-support guidelines of OCGA § 19-6-15. In response to appellant's petition, appellee asserted the existence of an oral settlement agreement between the parties that required appellee to pay $600 per month child support, and sought enforcement thereof.[1] After domesticating the Texas judgment (see Pearson v. Pearson, 263 Ga. 400 (435 SE2d 40) (1993)), the trial court found that the parties had entered into an enforceable oral settlement agreement and granted appellee's motion to enforce the oral settlement agreement, thereby modifying the child support award to $600 per month. We granted appellant's application for discretionary review.
We begin our analysis of this case by repeating the admonition that a modification action is the exclusive remedy for obtaining a provision supplementing the child support award contained in a divorce judgment. Foster v. Foster, 260 Ga. 813 (2) (400 SE2d 629) (1991). While parties may enter into an agreement concerning modification of child support (OCGA § 19-6-15 (a)), the agreement becomes an enforceable agreement only when made the order of the court pursuant to OCGA § 19-6-19. See Foster v. Foster, supra; Conley v. Conley, 259 Ga. 68 (5) (377 SE2d 663) (1989). Cf. Hendrix v. Stone, 261 Ga. 874 (412 SE2d 536) (1992).[2] Before a private agreement which includes child support may be incorporated into a court order, the trial court has an obligation to consider whether the agreed-upon support is sufficient *101 based on the child's needs and the parents' ability to pay. OCGA § 19-6-19 (a). See Arrington v. Arrington, 261 Ga. 547 (407 SE2d 758) (1991). In addition, the child-support guidelines of OCGA § 19-6-15 are applicable to a modification action (Riggs v. Darsey, 260 Ga. 487 (396 SE2d 905) (1990)), and the trial court must review the agreement in light of the child support amounts contained in the child-support guidelines. OCGA § 19-6-15 (a). See also Pruitt v. Lindsey, 261 Ga. 540 (1) (407 SE2d 750) (1991), where the court held that the child-support guidelines "must be considered by any court setting child support" as they are "the expression of the legislative will regarding the calculation of child support."
In the case at bar, the trial court found the existence of an oral agreement and, without more, made it the order of modification of the court. Even assuming that the trial court was correct in its finding that the parties had made an oral settlement, the trial court did not make a determination that the private agreement incorporated into the court's modification order was "in accordance with the changed income and financial status of either former spouse or in the needs of the child . .." (OCGA § 19-6-19 (a)), and did not review the agreement in light of the child-support guidelines. Furthermore, inasmuch as the trial court was sitting as the trier of fact in the modification action (OCGA § 19-6-19 (a)), any variance from the child-support guidelines had to be accompanied by a written finding of special circumstances. OCGA § 19-6-15 (c). Because the record does not reflect that the trial court made any of the necessary findings and determinations before incorporating the parties' oral settlement into the court order modifying child support, we must reverse the judgment of the trial court and remand the case for further consideration.
Judgment reversed. All the Justices concur.
HUNT, Chief Justice, concurring.
I concur with the outcome reached by the majority, but I write because I believe that the resolution of this case turns, not on the type of action before the trial court, in this case modification, but rather on the subject matter of the case, child support. While it is true that parties may not modify child support without the approval of the court, it must be remembered that the amount of child support cannot be fixed in the first place without court approval. In other words, I would emphasize that cases such as these are resolved not on a determination that an agreement concerning modification of child support becomes enforceable only when made the order of the court pursuant to the relevant statutes governing child support, but rather on the basis that any agreement concerning child support, whether the original fixing of the amount or a change in the amount, must be subjected to the necessary and statutorily mandated judicial scrutiny. *102 Such an emphasis will serve as a reminder to the courts that the guidelines were instituted by the legislature because of its concern, not for procedural niceties, but for the needs of children.
NOTES
[1] The purported oral agreement was reached by the parties acting without legal counsel.
[2] Self-executing and future modification provisions in the judgment of divorce undergo the necessary judicial scrutiny at the time of entry. See Weaver v. Jones, 260 Ga. 493 (396 SE2d 890) (1990); Jarrett v. Jarrett, 259 Ga. 560 (385 SE2d 279) (1989); Cabaniss v. Cabaniss, 251 Ga. 177 (304 SE2d 65) (1983); Pearce v. Pearce, 244 Ga. 69 (257 SE2d 904) (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350356/ | 454 S.E.2d 385 (1994)
193 W.Va. 91
Misty HINES, Diane Cline, Eleanor McQuain, and Betty Boord, Plaintiffs Below, Appellees,
v.
HILLS DEPARTMENT STORES, INC., and Brian Park, Defendants Below, Appellants.
No. 22093.
Supreme Court of Appeals of West Virginia.
Submitted October 4, 1994.
Decided December 15, 1994.
Concurring Opinion of Justice Cleckley January 31, 1995.
*387 George R. Higinbotham, Higinbotham & Higinbotham, Roger D. Curry, McLaughlin & Curry, and Gary J. Martino, Fairmont, for appellees.
Charles M. Surber, Jr., Stephen M. LaCagnin, Julia M. Chico, Jackson & Kelly, Morgantown, for appellants.
*386 PER CURIAM:
The appellants, Hills Department Store, Inc., and Brian Park, defendants below, file this appeal from the April 1, 1993, order of the Circuit Court of Marion County, West Virginia, which denied the appellants' motion for summary judgment and motion for a directed verdict at trial, and from the June 22, 1993, order which denied the appellants' motion for judgment notwithstanding the verdict and, alternatively, a new trial. The appellants also appeal from the April 14, 1993, jury verdict and judgment order against Brian Park, individually, and Hills Department Store, Inc.
The appellees, Eleanor McQuain, Misty Hines, Diane Cline, and Betty Boord, were employees of Hills Department Store in Fairmont, West Virginia. They worked as part-time cashiers during the evening shift. Eleanor McQuain held the position of part-time head cashier and had the most seniority of all of the appellees.
In 1991, a new general manager, Timothy Eckhardt, was employed by the Fairmont Hills store. The record shows that there was a good deal of friction between Mr. Eckhardt and Ms. McQuain because under the previous general manager, Ms. McQuain basically did as she wished. Mr. Eckhardt, *388 on the other hand, spent a lot of time on the floor and was an active manager.
In November, 1991, Mr. Eckhardt introduced a new streamlined scanning technique to accelerate the checkout process, which required the cashiers to simply pass a scanning gun over an item's bar code and immediately place the item in a shopping bag. The checker was not required to compare the item's ticketed price to the price displayed on the register screen. Ms. McQuain objected to the new procedure, claiming it would cause scanning errors to be overlooked. Mr. Eckhardt instructed the cashiers to correct errors that the customers brought to their attention just as they had always done. However, no additional checking would be performed, with Mr. Eckhardt claiming that the computer pricing auditors and other safeguards would help prevent scanning errors before the merchandise reached the checkout counter.
During the evening shift on December 7, 1991, Ms. McQuain discovered that a Roadmaster tricycle with a ticket price of $19.97 was scanning at the incorrect price of $3.00 because of a computer error. Shortly thereafter, Ms. McQuain and the other appellees purchased five tricycles at the $3.00 price less their 10% employee discount. They claimed that they purchased the tricycles in order to prove to Mr. Eckhardt that the new system did not work. The appellees, however, did not advise Mr. Eckhardt of this error. Their actions were not discovered until the next day, when Brian Park, the officer in charge of loss prevention, received a tip from another employee. After investigation and interviews with the appellees, each appellee prepared and signed a statement summarizing her involvement with the tricycle purchase. Ms. Cline voluntarily resigned, and the other appellees were discharged.
Pursuant to Hills' policy to prosecute crime against the company, and at the request of Hills' management, Mr. Park brought the matter to magistrate court to determine if the facts were sufficient to initiate prosecution. The magistrate found probable cause and charged McQuain, Hines, Cline, and Boord with the misdemeanor of obtaining goods under false pretenses. At the hearing, the presiding magistrate granted the appellees' motion to dismiss without giving the State the opportunity to cross-examine the appellees. The appellees then filed a civil action against Hills and Brian Park, alleging malicious prosecution, intentional infliction of emotional distress, false arrest, defamation, wrongful discharge, breach of employment contract, and violation of W.Va.Code § 21-5-4 (1975), which requires prompt payment of wages to employees who quit or are fired. They also requested injunctive relief for reinstatement and, on behalf of the State of West Virginia, reimbursement for legal expenses expended by the State to prosecute the appellees in magistrate court. Judge Merrifield dismissed the majority of the allegations and instructed the jury only on the malicious prosecution and intentional infliction of emotional distress claims.[1]
The jury rejected the malicious prosecution claim, but returned a verdict against both Brian Park and Hills on the intentional infliction of emotional distress claims. It awarded each of the appellees $15,000.00 in compensatory and $15,000.00 in punitive damages, except Ms. McQuain, who was awarded $5,000.00 in compensatory and $15,000.00 in punitive damages. It is from this final ruling that Hills Department Store and Brian Park file this appeal.
The appellants' primary argument is that the trial court erred in denying their motions because the evidence was insufficient as a matter of law to prove the essential elements of extreme and outrageous conduct and severe emotional distress. The appellants also argue that since the jury rejected the malicious prosecution claim, then there could be no evidence of conduct sufficient to make a claim of outrageous conduct or severe emotional distress. Thus, the verdict must have been in error. We agree that the jury's *389 verdict in awarding damages for intentional infliction of emotional distress/outrageous conduct was improper, and, for the reasons stated below, reverse the April 14, 1993, jury verdict and judgment order from the Circuit Court of Marion County.
We have recognized that damages can be recovered for the "tort of outrageous conduct," or the intentional infliction of emotional distress, without a finding of physical injury.[2] In Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982), we defined the intentional infliction of emotional distress:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Id. at syl. pt. 6. This definition was reached by examining § 46 of the Restatement (Second) of Torts.
As comment (d) to Section 46 of the Restatement suggests, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community."
Id. 289 S.E.2d at 704-05.
In Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985), an employee of Triangle alleged that her employer's conduct was outrageous when it terminated her employment after she had been off work for over a year receiving workers' compensation benefits. We disagreed, holding that the trial court was correct in finding the claim groundless. Similarly, we did not find any outrageous conduct in Wayne County Bank v. Hodges, 175 W.Va. 723, 338 S.E.2d 202 (1985). Hodges involved a claim that the bank's conduct was outrageous when it obtained an attachment on Hodges' property based upon a false allegation. In Kanawha Valley Power Co. v. Justice, 181 W.Va. 509, 383 S.E.2d 313 (1989), we dismissed an employee's claim that the employer had committed the tort of outrageous conduct when it attempted to collect overpayments on his sick leave. The employee claimed that he was threatened with termination of his employment if he failed to make the repayments. In Justice, we quoted the Restatement (Second) of Torts, § 46, comment j, that "`[t]he law intervenes only where the distress is so severe that no reasonable [person] could be expected to endure it.'" 383 S.E.2d at 317.
We refused to find outrageous conduct in Keyes v. Keyes, 182 W.Va. 802, 392 S.E.2d 693 (1990), in which the decedent's mother and brother refused to allow the decedent's son to be mentioned in the obituary, ride with the family to the funeral, or to erect the gravestone he had chosen. We found that the conduct, while mean-spirited and petty, did not rise to the required level of outrageousness. The next case to discuss the tort of outrageous conduct was Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418 (1991), rev'd on other grounds, Courtney v. Courtney, 190 W.Va. 126, 437 S.E.2d 436 (1993), which involved an ex-wife filing against her ex-husband and former mother-in-law on behalf of her son, for, among other claims, the intentional infliction of emotional distress. The trial court dismissed her claims on the defendant's motion to dismiss. In reversing the lower court's dismissal, this Court found that a cause of action existed for the mother's claim and remanded the case for consideration of her allegations. In making this decision, the Court again emphasized the extreme nature of the tort. Id. 413 S.E.2d at 421-22.
Most recently, in Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994), this Court revisited the issue of the intentional infliction of emotional distress in a retaliatory discharge context. Mr. Dzinglski, a former management employee of Weirton Steel, brought an action against Weirton Steel alleging the tort of outrage and the intentional infliction of emotional distress because of his termination in January, 1984, following allegations of kickbacks and graft. The allegations were made by a supplier, and an investigation was commenced into those charges. After several months, Mr. Dzinglski *390 was confronted with the allegations and suspended with pay pending further investigation. Although some of the allegations were confirmed, the allegations were never fully substantiated. In October, 1984, Mr. Dzinglski was honorably discharged.
Mr. Dzinglski filed suit, alleging that he had been wrongfully discharged, and asserted a claim for the tort of outrage or the intentional infliction of emotional distress. The trial court granted Weirton Steel's motion for a directed verdict on most of Weirton Steel's motions. However, the court denied Weirton Steel's motion for a directed verdict on Mr. Dzinglski's claim of outrage and intentional infliction of emotional distress. The jury returned a verdict of $500,000.00 in compensatory damages and $150,000.00 in punitive damages. Weirton Steel appealed, contending that the trial court erred in failing to direct a verdict in its favor because there was insufficient evidence as a matter of law that the investigation into the alleged improprieties constituted outrageous conduct.
This Court agreed, stating that the trial court erred in finding that Weirton Steel's conduct rose to the level required for the tort of outrage. In reaching that conclusion, the Court noted that:
The prevailing rule in distinguishing a wrongful discharge claim from an outrage claim is this: when the employee's distress results from the fact of his dischargee.g., the embarrassment and financial loss stemming from the plaintiff's firingrather than from any improper conduct on the part of the employer in effecting the discharge, then no claim for intentional infliction of emotional distress can attach. When, however, the employee's distress results from the outrageous manner by which the employer effected the discharge, the employee may recover under the tort of outrage. In other words, the wrongful discharge action depends solely on the validity of the employer's motivation or reason for the discharge. Therefore, any other conduct that surrounds the dismissal must be weighed to determine whether the employer's manner of effecting the discharge was outrageous.
Id. at syl. pt. 2. The Court pointed out that in initiating the investigation, Weirton Steel did what was proper. Id. 445 S.E.2d at 227.
Our review of the case law discussing the tort of outrageous conduct illustrates that it is a difficult fact pattern to prove. A certain level of outrageousness is required, as explained in the Restatement (Second) of Torts, supra, but it is almost impossible for this Court to define what will make a case of outrageous conduct. Instead, we define what it is not on a case-by-case basis.
In weighing the conduct surrounding this case, we cannot find that Hills' conduct rose to the level of outrageous conduct required by Harless and Dzinglski. The most that might be said is that Hills acted rather harshly in prosecuting the employees instead of simply discharging them. However, as we stated in Courtney, supra, "conduct that is merely annoying, harmful of one's rights or expectations, uncivil, mean-spirited, or negligent does not constitute outrageous conduct." 413 S.E.2d at 423. To that list we might add that overzealous conduct is not necessarily outrageous either.
Moreover, as we have earlier noted, the jury failed to return a verdict on the malicious prosecution claim. This would seem to negate a claim for outrageous conduct as the elements to establish a malicious prosecution case are less severe than an action for outrageous conduct.
"In an action for malicious prosecution, plaintiff must show: (1) that the prosecution was set on foot and conducted to its termination, resulting in plaintiff's discharge; (2) that it was caused or procured by defendant; (3) that it was without probable cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not recover." Radochio v. Katzen, 92 W.Va. 340, Pt. 1 Syl. [114 S.E. 746].
Syl. pt. 3, Truman v. Fidelity & Casualty Co. of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961). See also Morton v. Chesapeake & Ohio Railway Co., 184 W.Va. 64, 399 S.E.2d 464 (1990); Preiser v. MacQueen, 177 W.Va. 273, 352 S.E.2d 22 (1985); Tritchler v. West *391 Virginia Newspaper Publishing Co., Inc., 156 W.Va. 335, 193 S.E.2d 146 (1972).
We cannot say that the jury was incorrect in determining that there was insufficient evidence to support a malicious prosecution claim. The facts of this case do not rise to the level of those in Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770 (1991), our most recent malicious prosecution action. There, a manager of a company which leased bulldozers sued the bulldozer lessors for malicious prosecution and abuse of process. The lessors had caused the manager to be prosecuted for willfully tampering with a motor vehicle after the manager made unauthorized use of a bulldozer. The Circuit Court of Lewis County entered judgment on a jury verdict for the manager and his company, and the lessors appealed. In holding that the evidence supported the jury verdict, we decided that:
"With respect to the issue of whether there was probable cause to instigate a criminal prosecution against Pote, there was no evidence presented to the jury indicating that Pote feloniously and willfully damaged the bulldozer. Furthermore, the jury heard testimony from the magistrate that the appellants were informed that this was a civil matter rather than a criminal matter. Moreover, the appellees introduced evidence to the jury attempting to show that the appellants misused the criminal process by initiating criminal proceedings against Pote for the sole purpose of obtaining payment for damages to the bulldozer. Thus, we find that Pote established the elements enumerated in Truman, supra, and in Wayne County Bank, supra, and presented sufficient evidence from which the jury could conclude that they proved those elements by a preponderance of the evidence."
412 S.E.2d at 775.
In this case, there was a finding of probable cause at the magistrate level sufficient for issuing the misdemeanor warrants of obtaining goods under false pretenses. Moreover, the evidence revealed that Hills had conducted a reasonable investigation of the incident, including interviewing each of the appellees before discharging them. With the jury's adverse verdict on the malicious prosecution claim, which we have indicated requires a lesser degree of proof than the tort of outrageous conduct, it is not possible to support a claim for outrageous conduct arising out of the same incident. Thus, we conclude that the appellees have failed to establish a claim for outrageous conduct. We, therefore, apply the law set out in syllabus point 3 of Williamson v. Sharvest Management Co., 187 W.Va. 30, 415 S.E.2d 271 (1992):
"`When the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right of recovery, the trial court should direct a verdict in favor of the defendant.' Point 3, Syllabus, Roberts v. Gail, 149 W.Va. 166[, 139 S.E.2d 272] (1964)." Syl. pt. 3, Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979).
Accordingly, for the reasons set forth above, we reverse the April 14, 1993, jury verdict and judgment order from the Circuit Court of Marion County and enter judgment in favor of Hills Department Stores, Inc., and Brian Park.
Reversed.
BROTHERTON, J., did not participate.
MILLER, Retired Justice, sitting by temporary assignment.
CLECKLEY, Justice, concurring:
(Filed Jan. 31, 1995)
Normally, I would dissent in cases where this Court, in its appellate role, overrules a jury verdict. One of the risks of trial is an unpleasant verdict. In this case, after scanning the record closely, I am forced to concur with the majority's decision because after reviewing the evidence in the light most favorable to the plaintiffs, I believe no "reasonable trier of fact [could] have reached the decision below." Syllabus Point 1, in part, Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994). However, there are two areas I would like to expand upon; and, for that reason, I write separately.
First, in light of the evidence that the plaintiffs admitted "conspiring" to purchase *392 several of the tricycles knowing the scanner was incorrectly charging only $3.00 for the merchandise instead of the correct price of $19.97, it is surprising the plaintiffs did not consider themselves fortunate when the criminal charges were dismissed in magistrate court. Instead, they chose to pursue this civil claim against their employer. Frustra legis auxilium quaerit qui in legem committit. (He vainly seeks the aid of the law who transgresses the law.)
Second, I emphatically disagree with the tendency of this Court in the past to take the issue of whether certain conduct is in fact outrageous from the jury. See Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994); Keyes v. Keyes, 182 W.Va. 802, 392 S.E.2d 693 (1990): Kanawha Valley Power Co. v. Justice, 181 W.Va. 509, 383 S.E.2d 313 (1989). The role of both the trial court and appellate court is limited to determining whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. See Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418 (1991), rev'd on other grounds, Courtney v. Courtney, 190 W.Va. 126, 437 S.E.2d 436 (1993). If reasonable persons could differ on the issue, the question is one for the jury. What, too often, is overlooked by many of this Court's opinions in this area is the distinct difference between determining whether conduct may reasonably be considered outrageous, a legal question, and whether conduct is in fact outrageous, a question for jury determination.
The trial court must first determine whether Hills Department Store's actions were so extreme and outrageous to allow recovery. I recognize that the plaintiffs have a difficult burden both as to the law and as to the facts. The majority correctly recognizes that the tort of intentional infliction of emotional distress, which is based on "outrageous conduct," requires a strong showing of behavior that goes "beyond all possible bounds of decency[.]" Restatement (Second) of Torts § 46 at 71-73 (1965). Thus, the claim of "outrage" is raised only by such "obnoxious conduct utterly intolerable in a civilized society." See Bell v. Dixie Furniture Co. Inc., 285 S.C. 263, 329 S.E.2d 431, 433 (1985).
The four elements of the tort can be summarized as: (1) conduct by the defendant which is atrocious, utterly intolerable in a civilized community, and so extreme and outrageous as to exceed all possible bounds of decency; (2) the defendant acted with intent to inflict emotional distress or acted recklessly when it was certain or substantially certain such distress would result from his conduct; (3) the actions of the defendant caused the plaintiff to suffer emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.[1]
Most courts have focused on three common factors that are generally present when the tort has been found: (1) a preexisting legal relationship between the parties, including an employer-employee relationship; (2) conduct by the defendant involving excessive self-help in asserting a legal right or avoiding a legal obligation flowing out of the relationship or coercive and oppressive abuse of an employee by the employer; and (3) when the defendant calculatedly inflicted suffering or heedlessly and contemporaneously disregarded the plaintiff's present emotional suffering either to force the plaintiff to accede to the defendant's wishes or to punish the plaintiff for prior failure to comply.
Under this standard, mere disappointment or wounded feelings do not meet the threshold. It is especially important in employment termination situations, such as we have here, that there be some evidence of hostile or abusive encounters or coercive or oppressive abuse with respect to the termination of an employment relationship. Clearly, not all conduct involving personal interaction and causing emotional distress in employment termination cases may serve as the basis for an action alleging intentional infliction of *393 emotional distress. See Barber v. Whirlpool Corporation, 34 F.3d 1268 (4th Cir.1994).
It was neither extreme nor outrageous that Hills Department Store terminated the plaintiffs' employment for "ripping off" their employer. The plaintiffs allege no violent acts, no yelling, no loud voices, and no public humiliation during the termination. In sum, the plaintiffs' allegations simply do not meet the initial threshold. Had there been conflicting evidence on this point below, I would not vote to disturb the jury's resolution of the issue. As the majority notes, however, there was no evidence the employer behaved any differently than most employers, given the actions of the plaintiffs. Thus, I concur.
NOTES
[1] Hills points out that none of the appellees sought or received counselling or therapy for mental or emotional problems arising from their discharge and prosecution. Nor was any expert testimony offered at trial to prove emotional distress. The only evidence used was the appellees' testimony.
[2] See generally Annot., 64 A.L.R. 2d 100 (1959).
[1] Section 46 of the Restatement (Second) Of Torts suggests limiting the scope of the tort based on the following factors: (1) an emphasis on extreme, outrageous, atrocious, and utterly intolerable conduct; (2) abusive conduct by a defendant in actual or apparent authority over a plaintiff or with power to affect the plaintiff's interest; and (3) conduct by a defendant with knowledge that a plaintiff is peculiarly susceptible to emotional distress. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350380/ | 454 S.E.2d 39 (1995)
Otis Jerome ALEXANDER
v.
COMMONWEALTH of Virginia.
Record No. 2398-93-2.
Court of Appeals of Virginia, Richmond.
February 21, 1995.
*40 Theodore Tondrowski, Richmond (Bowen & Bowen, on brief), for appellant.
Michael T. Judge, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., Ronald P. Geiersbach, Asst. Atty. Gen., on brief), for appellee.
Present: MOON, C.J., and COLEMAN and BRAY, JJ.
COLEMAN, Judge.
Otis Jerome Alexander was convicted of possession of cocaine and possession of a firearm while possessing cocaine. On appeal, he asserts that the trial court erred by denying his motion to suppress evidence which he contends was seized during an unlawful entry into his motel room by Richmond police officers. We hold that the police officers forcibly entered the appellant's motel room, where he had a right of privacy, without probable cause to believe that a crime was being committed. Thus, the officers' entry into the motel room and the seizure of the appellant, which led to the discovery of the illicit contraband and weapon, was illegal. Therefore, we reverse the convictions. Because the prosecution of both charges cannot proceed without the illegally seized cocaine or firearm evidence, we dismiss the indictments.
On December 9, 1992, Detective Ford of the Richmond City Police Department, responded to a radio dispatch that was based on an anonymous 911 call. The caller on the 911 line reported that a woman was being held against her will in Room 118 at the Budget Motel at 5904 Hull Street. Detective Ford had no information as to how the caller supposedly knew about the abduction. At least five Richmond City police officers responded to the call.
Upon arrival, Detective Ford and four other uniformed officers positioned themselves at the front door of Room 118. Officer Wiggins went to cover the outside rear window of the room. The officers at the front door could not see Wiggins from their positions. Believing that an abduction or "hostage situation" might involve a threat to human life or safety, some of the officers drew their handguns, while Detective Ford knocked on the door. At that moment, Detective Ford heard Officer Wiggins, who was out of Ford's sight, say, "Freeze, police." Almost simultaneous with Ford's hearing this, the knock on the door was answered by one of the occupants. Through the open door, Detective Ford could see four individuals, including a woman sitting in a chair. Detective Ford observed no activity or circumstances in the room at that time which suggested or confirmed that the woman was being held against her will.
After hearing Officer Wiggins say "freeze, police," the officers rushed into the motel room, some with their handguns drawn, and ordered the occupants to remain where they were. All occupants complied. The appellant, who offered no resistance, told the officers that he had a handgun in his pocket. The officers seized the handgun and arrested the appellant for carrying a concealed weapon. The officers then searched the appellant incident to the arrest.[1] During the search, the officers found cocaine in the appellant's pocket.
"The [F]ourth [A]mendment protects people against unreasonable searches and seizures." Servis v. Commonwealth, 6 Va.App. 507, 514, 371 S.E.2d 156, 159 (1988). The Fourth Amendment protects a person's home from unreasonable governmental intrusion. Only when probable cause exists for an *41 officer to believe that a person's home or abode harbors a criminal or the fruits of crime may it be subjected to a search. See Boyd v. Commonwealth, 12 Va.App. 179, 185, 402 S.E.2d 914, 918 (1991). Even then, barring exigent circumstances, the threshold to a person's home cannot be crossed without a warrant. Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639 (1980). "The [F]ourth [A]mendment rights of a guest in a motel room are equivalent to those of the rightful occupants of a house." Servis, 6 Va.App. at 514, 371 S.E.2d at 159. Thus, a warrantless entry into a person's house or motel room is per se unreasonable and violative of the Fourth Amendment. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S. Ct. 579, 66 L. Ed. 2d 477 (1980). Consequently, government law enforcement agents cannot enter a person's motel room, absent probable cause and exigent circumstances, without a search warrant.
The Commonwealth argues, however, that probable cause and exigent circumstances existed which justified the officers' warrantless entry into the appellant's motel room. The Commonwealth carries a "heavy burden" for proving justification for a warrantless search based upon exigent circumstances. Verez v. Commonwealth, 230 Va. 405, 410, 337 S.E.2d 749, 752-53 (1985), cert. denied, 479 U.S. 813, 107 S. Ct. 63, 93 L. Ed. 2d 21 (1986). Exigent circumstances justify a warrantless entry and search of a motel room only when the police have probable cause to obtain a search warrant. Servis, 6 Va.App. at 514-15, 371 S.E.2d at 159.
Viewing the facts in the light most favorable to the Commonwealth, as we must, based upon the trial court's probable cause ruling, we find that the 911 call and the officer's independent observations at the motel gave no reasonable basis for an officer to believe that a crime was being committed which justified a warrantless entry into the motel room. See Shannon v. Commonwealth, 18 Va.App. 31, 34-46, 441 S.E.2d 225, 226-27, reh'g en banc, 19 Va.App. 145, 449 S.E.2d 584 (1994). Probable cause for police officers to enter a person's motel room must be based on more than speculation, suspicion, or surmise that a crime might be in progress. Compare Shannon, 18 Va.App. 31, 441 S.E.2d 225, with Reynolds v. Commonwealth, 9 Va.App. 430, 388 S.E.2d 659 (1990).
When Officer Ford responded to the radio dispatch, he knew only that the dispatcher said a 911 caller reported that a woman was being "held hostage" in Room 118 of the Budget Motel. Officer Ford had no information concerning the identity of the caller or the basis for the caller's assertion that would provide some assurance to a reasonable person that the report was reliable. Upon arriving, the officers did not inquire at the front desk or make an independent investigation in an effort to verify the unsubstantiated report that a crime might be occurring. See Boyd, 12 Va.App. at 184, 402 S.E.2d at 918. When Detective Ford knocked on the door, at least five uniformed police officers had surrounded the motel room, some with guns drawn. Before Detective Ford could have inquired about the situation in an effort to verify the 911 call and to determine whether any reason existed to believe that a crime might be in progress, Officer Wiggins said, "Freeze, police." At the time, Detective Ford could see four people in the room, including a woman sitting in a chair. The mere presence of a woman in the room, without more, in no way corroborated or substantiated the 911 report that a woman was being "held hostage" or being held against her will.
No probable cause existed for the officers to believe that a crime was being committed. The officers' entry into the appellant's motel room violated his privacy right to be free from an unreasonable search and seizure. Thus, the firearm and cocaine, both of which were the fruits obtained as a result of the illegal entry into the motel room, should have been suppressed. We, therefore, reverse the convictions and dismiss the indictments against the appellant.
Reversed and dismissed.
NOTES
[1] The appellant argued on brief that even if the entry into the room was lawful, the search of him was not incidental to a lawful arrest. He contended that he did not violate Code § 18.2-308 by carrying a concealed weapon in a rented motel room, which he argues is "his own place of abode" within the statute. Because we hold that the initial entry was unlawful and that the unlawful entry led to the seizure of the concealed handgun and cocaine, we do not reach the issue of the legality of the arrest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350393/ | 454 S.E.2d 320 (1995)
Jarvis GRAYSON, Respondent,
v.
CARTER RHOAD FURNITURE, Employer, and South Carolina Merchants Association, Carrier, Petitioners.
No. 24193.
Supreme Court of South Carolina.
Heard January 3, 1995.
Decided February 13, 1995.
Rehearing Denied March 8, 1995.
*321 F. Earl Ellis, Jr. and Andrew F. Lindemann, Ellis, Lawhorne, Davidson & Sims, P.A., Columbia, for petitioner.
J. Marvin Mullis, Jr., and James B. Richardson, Jr., Svalina, Richardson and Smith, Columbia, for respondent.
WALLER, Justice:
We granted certiorari to review the Court of Appeals' decision reported at ___ S.C. ___, 439 S.E.2d 859 (Ct.App.1993). We affirm as modified.
FACTS
This is a worker's compensation case. Jarvis Grayson was employed as a furniture mover for Petitioner, Carter Rhoad Furniture. He injured his back on August 23, 1990 while moving a sofa with a co-worker. Grayson continued to work for several weeks but, by October 9, 1990, he was unable to work due to back pain. Grayson remained out of work for several weeks, for which Carter Rhoad paid him temporary total disability benefits. On December 11, 1990, an orthopaedic physician, Dr. Joel Graziano, advised Grayson he could return to work the following Monday but warned he "should be somewhat careful with lifting, etc."
Grayson returned to work on December 17, 1990. He worked in pain for three weeks and was terminated on January 7, 1991.[1]
Grayson instituted the present action to resume compensation benefits for temporary total disability. After a hearing, the Single Commissioner found Grayson had not proven entitlement to further temporary total disability benefits. The Full Commission affirmed. The Circuit Court reversed, finding that Dr. Graziano's release of Grayson to return to work did not constitute substantial evidence on which to terminate temporary total disability benefits. The Court of Appeals affirmed stating, "In this case, the administrative findings are clearly erroneous because they are based on a mistaken view of the evidence." The Court of Appeals later stated, "the commission's decision rested on a clearly erroneous view of the evidence before it." We granted certiorari.
ISSUE
Did the Court of Appeals misapply the substantial evidence test?
DISCUSSION
A Court may not substitute its judgment for that of an agency as to the weight of the evidence on questions of fact unless the agency's findings are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Lark v. Bi-lo, 276 S.C. 130, 276 S.E.2d 304 (1981); S.C.Code Ann. § 1-23-380(A)(6) (Supp.1993). Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached. Stokes v. First National Bank, 306 S.C. 46, 410 S.E.2d 248 (1991). Substantial evidence, however, is something less than the weight of the evidence. De Groot v. Employment Security Commission, 285 S.C. 209, 328 S.E.2d 668 (Ct.App.1985). Where there is conflicting medical evidence, the findings of fact of the *322 commission are conclusive. Hoxit v. Michelin Tire Corp., 304 S.C. 461, 405 S.E.2d 407 (1991).
Here, as proof that the Commission's findings are supported by substantial evidence, Carter Rhoad cites Dr. Graziano's report releasing Grayson to work to be "somewhat careful with lifting," and Grayson's own testimony that he actually returned to work for three weeks. We agree with the Court of Appeals that this does not constitute substantial evidence but for a different reason.
The quandary created by the evidence is that Grayson was never released by Dr. Graziano to return to work "without restriction." S.C.Code Ann. Vol.25-A, Worker's Compensation Regulation 67-504 provides, in pertinent part, as follows:
C. When the claimant reaches maximum medical improvement and the authorized health care provider reports the claimant is able to return to work without restriction to the same job or other suitable job, and such a job is provided by the employer, or the claimant agrees he or she is able to return to work without restriction,[2] the employer's representative may suspend compensation benefits by complying with section D below. (Emphasis supplied).
Dr. Graziano's release in fact contains the restriction Grayson be "somewhat careful with lifting." Grayson's sole function as a furniture mover for Carter Rhoad involved lifting and moving heavy objects. As such, there was no evidence Grayson had ever returned to work "without restriction," and, as such, his period of temporary total disability was never properly terminated in accordance with the Regulation.[3]
Contrary to the Court of Appeals' ruling that the Commission's findings were based upon a "mistaken view of the evidence," there is, in reality, no evidence that Grayson's period of temporary total disability ever ended. Accordingly, we modify the Court of Appeals' opinion to the extent it held the Commission's findings were based upon a "mistaken" or "clearly erroneous" view of the evidence.
The judgment is
AFFIRMED AS MODIFIED.
FINNEY, C.J., TOAL and MOORE, JJ., and A. LEE CHANDLER, Acting Associate Justice, concur.
NOTES
[1] The reason given by Carter Rhoad for Grayson's termination was his lack of a driver's license. Although Grayson disputes the reason for his termination, the matter is not before this Court.
[2] Although Grayson signed a Form 17 indicating he had returned to work for fifteen days, he testified he could not do so without pain and could not perform his job as well as before. Accordingly, there is no evidence Grayson agreed he was able to do work "without restriction."
[3] At oral argument, Carter Rhoad asserted the Regulation was inapplicable to this case. We disagree. Grayson was injured on August 23, 1990, and worked until October 9th before becoming temporarily totally disabled. The Regulation became effective on September 2, 1990. Carter Rhoad did not cease its payment of temporary total benefits until after the Regulations were in full force and effect.
In any event, the Regulation, being procedural in nature, may be applied retroactively. Jenkins v. Meares, 302 S.C. 142, 394 S.E.2d 317 (1990); Hercules, Inc. v. S.C. Tax Commission, 274 S.C. 137, 262 S.E.2d 45 (1980) (Changes in procedure applied retroactively, whereas changes creating liability where formerly none existed given prospective application.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264560/ | 14 Cal.App.4th 124 (1992)
18 Cal. Rptr.2d 142
BRUCE D. STUART, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CARMEN ROBLEDO ANDRADE, Real Party in Interest.
Docket No. B069938.
Court of Appeals of California, Second District, Division Five.
December 15, 1992.
*126 COUNSEL
Jeff Berke for Petitioner.
No appearance for Respondent.
Hartley & Hartley and Joseph M. Hartley for Real Party in Interest.
OPINION
TURNER, P.J.
Bruce D. Stuart, a defendant in a legal malpractice action, seeks a writ of mandate directing the respondent court to grant his summary judgment motion.
On August 8, 1986, plaintiff Carmen Robledo Andrade suffered an injury while on the premises of Ron Rose Arco Station (Arco). He hired Mr. Stuart to represent him in a personal injury lawsuit. On March 6, 1987, Mr. Stuart filed a Judicial Council form personal injury complaint. The summons and complaint in the municipal court action were served on Arco on May 6, 1987. After effecting service of the summons and complaint, Mr. Stuart commenced settlement negotiations with Arco's insurance carrier, Fireman's Fund. Mr. Stuart granted Arco an open extension of time to answer the complaint. The open extension was confirmed in a letter from Fireman's Fund to Mr. Stuart dated September 15, 1988.
In January, 1990, Mr. Stuart was advised that Mr. Andrade desired to be represented by a different attorney. Mr. Stuart signed a substitution of attorney form on January 26, 1990. Mr. Andrade's new attorney, Speros Maniates, signed the form on the same day. The substitution of attorney form was filed with the municipal court on February 26, 1990. Since the summons and complaint were filed on March 6, 1987, pursuant to Code of Civil Procedure section 583.210,[1] the complaint had to be served within 3 years and the proof of service had to be returned within 3 years and 60 days of that date, or May 5, 1990. Mr. Maniates did not return the summons prior to May 5, 1990. There is no evidence Arco moved to dismiss the personal injury action filed in municipal court by Mr. Stuart at any time after May 5, 1990.
*127 Mr. Andrade filed his legal malpractice complaint against Attorneys Stuart and Maniates in superior court on June 4, 1991. The purported acts of malpractice consisted of "failing to file a meritorious action in the Superior Court where the damages exceeded $25,000 and in failing to serve any of the defendants within the three years of the date of the filing of the complaint." On May 18, 1992, Mr. Stuart filed a motion for summary judgment. The motion was argued and taken under submission on July 23, 1992. In a minute order issued August 18, 1992, the respondent court denied the motion, finding there were "triable issues of fact regarding defendant's alleged malpractice." The minute order did not "specifically refer to the evidence proffered in support of and in opposition to the motion which indicate that a triable issue of controversy exists." (§ 437c, subd. (g); see Gonzales v. Superior Court (1987) 189 Cal. App.3d 1542, 1546 [235 Cal. Rptr. 106].)
(1a) After utilizing the applicable standard of review (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal. Rptr. 122, 762 P.2d 46]), we conclude Mr. Stuart was entitled to summary judgment because he was not the attorney of record for Mr. Andrade at the time his former client is alleged to have lost the right to pursue the personal injury action against Arco.[2] (2) "[O]n [a] motion for summary judgment, the moving party must generally negative the matters which the resisting party would have to prove at the trial." (Barnes v. Blue Haven Pools (1969) 1 Cal. App.3d 123, 127 [81 Cal. Rptr. 444].) (1b) In order to prevail in the summary judgment context, Mr. Stuart was required to disprove, as a matter of law (§ 437c, subd. (c)), that "at the critical times in question there existed the relationship of attorney and client with its accompanying responsibilities." (Shelly v. Hansen (1966) 244 Cal. App.2d 210, 214 [53 Cal. Rptr. 20], disapproved on other grounds in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190, fn. 29 [98 Cal. Rptr. 837, 491 P.2d 421].) In Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 57 [210 Cal. Rptr. 781, 694 P.2d 1153], the plaintiff sued a law firm and two of its members for legal malpractice, claiming the attorneys allowed the statute of limitations to expire in connection with a medical malpractice action. The Supreme Court found that the statute of limitations ran on the plaintiff's medical malpractice cause of action in September 1979. However, the plaintiff had discharged the defendant attorneys in January 1979. The Supreme Court, affirming a summary judgment in favor of the attorneys, held, "An attorney cannot be held liable for failing to file an action prior to the expiration of the statute of limitations if he ceased to represent the client and *128 was replaced by other counsel before the statute ran on the client's action." (Ibid.) Similarly, in this case, Mr. Stuart ceased to be attorney of record in the municipal court personal injury action nearly three months before the earliest date upon which Arco's right to a mandatory dismissal could have accrued. During that nearly three-month period, the responsibility for returning the summons lay solely with Mr. Andrade's new attorney, Mr. Maniates, and not Mr. Stuart. Here, the "critical time in question" (Shelly v. Hansen, supra, 244 Cal. App.2d at p. 214) was May 5, 1990, and the attorney-client relationship between Mr. Andrade and Mr. Stuart had previously ended, on February 26, 1990, when the substitution of attorney form was filed. (See Hock v. Superior Court (1990) 221 Cal. App.3d 670, 674 [270 Cal. Rptr. 579]; Sherman v. Panno (1954) 129 Cal. App.2d 375, 378-379 [277 P.2d 80].)
(3) Mr. Stuart cannot be held liable for failing to file the action initially in superior court. Even though in the personal injury complaint Mr. Andrade agreed to remit "any sum in excess of the jurisdiction of [the municipal] court," the pleading could nonetheless have been amended and the cause transferred to superior court if there was a likelihood Mr. Andrade's damages would be found to be in excess of the municipal court's jurisdiction. (See Williams v. Superior Court (1989) 216 Cal. App.3d 378, 386, fn. 6 [264 Cal. Rptr. 677]; Thomasian v. Superior Court (1953) 122 Cal. App.2d 322, 335-341 [265 P.2d 165].)
Let a peremptory writ of mandate issue directing the respondent court to vacate its order of August 18, 1992, denying the summary judgment motion of Bruce D. Stuart and enter a new and different order granting the motion. Defendant Bruce D. Stuart is to recover his costs from plaintiff Carmen Robledo Andrade incurred in connection with these proceedings.
Boren, J., and Grignon, J., concurred.
The petition of real party in interest for review by the Supreme Court was denied March 18, 1993.
NOTES
[1] All future statutory references are to the Code of Civil Procedure. Section 583.210 provides: "(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision an action is commenced at the time the complaint is filed. [¶] (b) Return of summons or other proof of service shall be made within 60 days after the time the summons and complaint must be served upon a defendant."
[2] Because Arco had an open extension of time to answer the complaint, it may have been estopped from seeking a dismissal under section 583.210. (See Knapp v. Superior Court (1978) 79 Cal. App.3d 799, 804 [145 Cal. Rptr. 154].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350277/ | 167 Wis. 2d 345 (1992)
481 N.W.2d 498
Bruce CARLSON, Plaintiff-Appellant,
v.
PEPIN COUNTY, Clarence Weissinger, Robert Patraw, Ron Fiedler, and State of Wisconsin, Defendants-Respondents.
No. 91-2374.
Court of Appeals of Wisconsin.
Submitted on briefs February 3, 1992.
Decided February 25, 1992.
*348 On behalf of the plaintiff-appellant, the cause was submitted on the brief of Roger M. Hillestad of Roger M. Hillestad & Associates, S.C. of Durand.
On behalf of the defendants-respondents, Pepin County, Clarence Weissinger and Robert Patraw, the cause was submitted on the brief of Steve A. Cotton of Straub & Schuch of Eau Claire.
*349 On behalf of the defendants-respondents, Ron Fiedler and State of Wisconsin, the cause was submitted on the brief of James E. Doyle, attorney general, and Joanne F. Kloppenburg, assistant attorney general.
Before Cane, P.J., LaRocque and Myse, JJ.
CANE, P.J.
Bruce Carlson appeals a judgment in favor of Pepin County, Clarence Weissinger, the Pepin County Highway Commissioner, and Robert Patraw, a Pepin County Highway Department road maintenance employee. The trial court dismissed Carlson's claim concluding that it was barred by the personal injury statute of limitation, sec. 893.54, Stats. We conclude that the discovery rule applies and that there is a material issue of fact regarding when Carlson, with reasonable diligence, should have discovered his injury, its nature, its cause and the defendants' identities. The judgment in favor of the county, Weissinger and Patraw is reversed and the cause remanded for further proceedings.
Carlson also appeals a judgment in favor of the state and Ron Fiedler, Wisconsin Department of Transportation secretary. The trial court dismissed Carlson's claim concluding that he failed to timely comply with the 120-day notice of claim requirement pursuant to sec. 893.82, Stats., and, thus, the trial court lacked subject matter jurisdiction. We conclude that the state cannot be sued on the basis of sovereign immunity. We also conclude, with respect to Carlson's action against Fiedler, that Carlson's notice was untimely under the 120-day notice of claim requirement in sec. 893.82 and, therefore, Carlson's action is barred. The judgment dismissing Carlson's claim against the state and Fiedler is affirmed.
On December 10, 1983, Carlson was severely injured when the snowmobile he was driving collided with brush and debris on a highway right-of-way. As a result of the *350 accident, Carlson was in a coma for five months, was hospitalized for approximately two years, sustained permanent brain damage and suffered permanent physical disabilities. On August 17, 1990, almost seven years after the accident, Carlson filed a notice of claim with the state and the county. Both the county and the state disallowed Carlson's claim. On April 26, 1991, Carlson filed an action against the state, Fiedler, the county, Weissinger and Patraw.
The county, Weissinger and Patraw filed a motion for judgment on the pleadings under sec. 802.06(3), Stats., claiming that the three-year personal injury statute of limitation barred Carlson's claim. The trial court granted the motion and dismissed Carlson's claim because: (1) it was barred by sec. 893.54, Stats., the three-year personal injury statute of limitation, (2) sec. 893.16, the disability statute, did not apply, and (3) even if sec. 893.16 did apply, Carlson's disability ceased when he came out of his five-month coma.
Additionally, the state and Fiedler filed a motion to dismiss under sec. 802.06(2), Stats., claiming that: (1) Carlson's complaint failed to state a claim against the state because such a claim was barred by sovereign immunity, (2) Carlson's claim against Fiedler was barred by sec. 893.54, Stats., the three-year personal injury statute of limitation, and (3) the trial court lacked subject matter jurisdiction because Carlson's claim against Fiedler did not timely comply with the 120-day notice of claim requirement pursuant to sec. 893.82. The trial court dismissed Carlson's claim because he did not comply with the 120-day notice of claim requirement under sec. 893.82.
*351 CLAIM AGAINST COUNTY AND COUNTY EMPLOYEES
[1]
We first address the judgment in favor of the county, Weissinger and Patraw dismissing Carlson's action because it was barred by the three-year personal injury statute of limitation, sec. 893.54, Stats. Although the county's motion was one for judgment on the pleadings, the trial court decided the motion as one for summary judgment under sec. 802.06(3), Stats., because it considered matters outside of the pleadings. Section 802.06(3) provides that a motion for judgment on the pleadings shall be treated as a motion for summary judgment where the trial court considers matters outside of the pleadings. We review summary judgments de novo. Grosskopf Oil v. Winter, 156 Wis. 2d 575, 581, 457 N.W.2d 514, 517 (Ct. App. 1990). The methodology for reviewing a summary judgment has been set forth many times, and it need not be repeated here. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476 (1980).
An action to recover damages for injuries to the person. shall be commenced within three years. Section 893.54, Stats. The period of limitation within which one must commence an action is computed from the time the cause of action accrues until the summons and complaint are filed with the court. Sections 893.02 and 893.04, Stats. Additionally, sec. 893.16 tolls the statute of limitation where a plaintiff is under a disability.
We first address Carlson's argument that sec. 893.16, Stats., tolls his three-year limitation period because he was disabled. He suggests that his comatose state and brain damage rendered him "insane" and, thus, disabled for purposes of sec. 893.16. Section 893.16 provides:
*352 (1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years . . . or insane, or imprisoned . . . the action may be commenced within 2 years after the disability ceases, except . . . the period of limitation prescribed in this chapter may not be extended for more than 5 years.
. . . .
(3) A disability does not exist . . . unless it existed when the cause of action accrues.
[2]
The disability statute applies only where a plaintiff was a minor, insane or imprisoned at the time his cause of action accrued. Section 893.16(3), Stats. Carlson contends that the disability statute applies where the disability resulted from his accident. We reject this reading of the statute. The statute's origin dates back to the 1800's, long before the adoption of the discovery rule in 1983. See Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578, 583 (1983). Prior to the discovery rule, a cause of action accrued on the date of the plaintiff injury. See Holifield v. Setco Ind., 42 Wis. 2d 750, 755, 168 N.W.2d 177, 180 (1969). Thus, we conclude that the legislature intended the disability statute to apply where the disability existed at the time of the plaintiffs injury, not at the time the injury was discovered and not where the disability resulted from the incident causing the plaintiffs injury. Consequently, we conclude that sec. 893.16 does not apply to Carlson because his disability resulted from his accident.
[3, 4]
Next, Carlson argues that, under the discovery rule, his cause of action did not accrue until he discovered his injury and the identity of the tortfeasors, allegedly some time after he came out of his coma. We agree. Under the *353 discovery rule, a cause of action accrues when the plaintiff discovered or, in the exercise of reasonable diligence, should have discovered his injury, its nature, its cause and the identity of the allegedly responsible defendant. Hennskens v. Hoerl, 160 Wis. 2d 144, 160, 465 N.W.2d 812, 819 (1991). In jurisdictions where the cause of action accrues upon discovery, other courts have held that the plaintiffs cause of action had not accrued when the plaintiff was in a coma because he could not have reasonably discovered his injury or its cause. See Washington v. United States, 769 F.2d 1436 (9th Cir. 1985); Clifford v. United States, 738 F.2d 977 (8th Cir. 1984); Pardy v. United States, 575 F. Supp. 1978 (S.D. Ill. 1983). We agree and conclude that Carlson's action had not accrued during the time he was in a coma because he reasonably could not have discovered his injury or its cause.
[5, 6]
Carlson also contends that his brain damage delayed the accrual of his cause of action. The test of the discovery rule, "in the exercise of reasonable diligence," is an objective test. See Borello v. U.S. Oil, 130 Wis. 2d 397, 414, 388 N.W.2d 140, 147 (1986). Stated in other words, the test is whether a reasonable person under the same or similar circumstances as the plaintiff should have discovered his injury and its cause. See Spitler v. Dean, 148 Wis. 2d 630, 638, 436 N.W.2d 308, 311 (1989). When deciding whether a reasonable person under the same or similar circumstances as the plaintiff should have discovered the injury and its cause, it is proper to consider the plaintiff's mental disabilities. See Greenberg v. McCabe, 453 F. Supp. 765, 768 (E.D. Penn. 1978). Thus, under the discovery rule, Carlson's action accrued when he discovered or when a reasonable person with the same degree of mental and physical handicap and under the *354 same or similar circumstances as Carlson should have discovered the injury, its cause, its nature and the defendants' identities. See Hennekens, 160 Wis. 2d at 160, 465 N.W.2d at 819.
[7]
It is undisputed that Carlson sustained brain damage as a result of the accident. However, the record does not indicate when Carlson discovered or with reasonable diligence should have discovered his injury, its cause and the defendants' identities. Thus, we conclude that there is a material issue of fact concerning when Carlson discovered or when a reasonable person with the same degree of mental and physical handicap and under the same or similar circumstances as Carlson should have discovered his injury, its cause, its nature and the defendants' identities. Because summary judgment is inappropriate where there is a disputed material issue of fact, see Grams, 97 Wis. 2d at 338-39, 294 N.W.2d at 477, we reverse the judgment dismissing Carlson's action against the county, Weissinger and Patraw, and remand the cause for further proceedings consistent with this opinion.
We also note that whether Carlson met the 120-day notice of claim provision under sec. 893.80, Stats., dealing with claims against governmental bodies and their employees, was not before us on appeal even though Carlson addressed the issue in his brief. Section 893.80 states in part:
(1) [N]o action may be brought or maintained against any . . . governmental subdivision or agency . . . or employe . . . unless:
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim . . . is served on the .. . governmental subdivision or agency and on the .. . *355 employe . . .. Failure to give the requisite notice shall not bar action on the claim if the . . . subdivision or agency had actual notice of the claim and the claimant shows . . . that the delay or failure to give the requisite notice has not been prejudicial to the defendant . . . subdivision or agency or to the defendant . . . employe . .
The county, Weissinger and Patraw's motion for judgment on the pleadings was based only on Carlson's alleged failure to meet the three-year statute of limitation in sec. 893.54. The motion was not based on Carlson's alleged failure to meet the 120-day notice of claim requirement in sec. 893.80. Furthermore, although Carlson argued that he met the actual notice and lack of prejudice exception to the 120-day notice requirement, he did not argue before the trial court or this court that the discovery rule applied to extend the 120-day notice requirement. However, upon a proper motion, the trial court may have to address whether Carlson met the actual notice and lack of prejudice exception to the 120day notice requirement so as not to bar his claim against the county, Weissinger and Patraw under sec. 893.80.
CLAIM AGAINST STATE AND STATE EMPLOYEE
We next address the judgment dismissing Carlson's claim against the state and Fiedler. The state and Fiedler brought a motion to dismiss under sec. 802.06(2), Stats., claiming that: (1) Carlson's complaint failed to state a claim against the state because such a claim was barred by sovereign immunity, (2) Carlson's claim against Fiedler was barred by sec. 893.54, Stats., the three-year personal injury statute of limitation, and (3) the trial court lacked subject matter jurisdiction because Carlson's *356 claim against Fiedler did not timely comply with the notice requirements of sec. 893.82. The trial court decided this motion as one for summary judgment under sec. 802.06(2) because it considered matters outside of the pleadings. Section 802.06(2) provides that a motion to dismiss asserting the defenses of failure to state a claim and the statute of limitation shall be treated as a motion for summary judgment where the trial court considers matters outside of the pleadings. We review summary judgments de novo. Grosskopf Oil, 156 Wis. 2d at 581, 457 N.W.2d at 517.
[8-10]
The state argues that Carlson failed to state a claim upon which relief could be granted because the doctrine of sovereign immunity prevents Carlson from suing the state. Under the doctrine of sovereign immunity, the state cannot be sued without its consent. Fiala v. Voight, 93 Wis. 2d 337, 342, 286 N.W.2d 824, 827 (1980). Sovereign immunity is a matter of personal jurisdiction that, when raised, deprives the trial court of jurisdiction over the state. Id. at 341, 286 N.W.2d at 827. The state has not given statutory consent to suit in tort. Boldt v. State, 101 Wis. 2d 566, 572-73, 305 N.W.2d 133, 138 (1981). Additionally, sec. 895.46, Stats., which provides indemnity by the state for judgments against public employees because of acts committed within the scope of their employment, does not permit a tort victim to sue the state directly. Yotvat v. Roth, 95 Wis. 2d 357, 366-67, 290 N.W.2d 524, 530 (Ct. App. 1980). Thus, we conclude that Carlson cannot sue the state.
Sovereign immunity, however, does not protect state employees from tort suits. Fiedler contends that the trial court lacked subject matter jurisdiction because Carlson did not meet the notice of claim requirement under sec. 893.82, Stats., dealing with actions against *357 state employees, and, therefore, Carlson's claim against him was properly dismissed. Section 893.82(3) provides in part:
No civil action . . . may be brought against any state . . . employe . . . for or on account of any act growing out of or committed in the course of the discharge of the . . . employe's . . . duties, unless within 120 days of the event causing the injury . . . the claimant . . . serves upon the attorney general written notice of a claim . . .. (Emphasis added.)
[11]
Carlson filed his notice of claim on August 17, 1990, more than 120 days after his accident on December 10, 1983. He argues that noncompliance with the 120-day notice provision does not bar his claim because (1) the state had actual notice of his claim because the accident was reported to the Department of Natural Resources, and (2) the state was not prejudiced by Carlson's late notice of claim. We disagree. Section 893.80, Stats., dealing with actions against governmental bodies and their employees, contains this actual notice and lack of prejudice exception to the 120-day notice of claim rule. See sec. 893.80(1)(a), Stats. However, sec. 893.80 does not apply to state employees. Thus, the actual notice and lack of prejudice exception may be applicable to Carlson's action against the county, Weissinger and Patraw, but it is not applicable to Carlson's action against Fiedler. Furthermore, sec. 893.82, dealing with action against state employees such as Fiedler, has no comparable exception. Therefore, because Carlson failed to comply with the 120-day notice of claim requirement in sec. 893.82, his claim against Fiedler was properly dismissed.
[12]
Fiedler also raises the three-year statute of limitation as a bar to Carlson's claim. Our analysis concerning *358 the discovery rule and our conclusion that it applies to Carlson's claim against the county, Weissinger and Patraw are equally applicable to Carlson's claim against Fiedler. Thus, the three-year statute of limitation does not necessarily bar Carlson's claim against Fiedler. We would have to remand the cause for a determination of when Carlson discovered or reasonably should have discovered his injury, its cause, its nature and the identity of the defendants. However, because the notice of claim requirement under sec. 893.82, Stats., is a condition precedent to Carlson's right to commence an action against Fiedler, see Ibrahim v. Samore, 118 Wis. 2d 720, 726, 348 N.W.2d 554, 558 (1984), Carlson's claim against Fiedler is barred by sec. 893.82 because he failed to meet the 120-day notice requirement. Carlson advances no argument other than the actual notice and lack of prejudice exception to the 120-day notice requirement, which we rejected. Additionally, because Carlson does not argue that the discovery rule applies to extend the 120-day notice of claim requirement in sec. 893.82, that issue must wait for another day.
By the Court.Judgment dated August 20, 1991, in favor of Pepin County, Weissinger and Patraw is reversed and the cause remanded for further proceedings. Judgment dated August 12, 1991, in favor of the state and Fiedler is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2892822/ | NO. 07-05-0028-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 1, 2005
______________________________
IN RE: MICHAEL ANTHONY TAYLOR,
Relator
____________________________________
Memorandum Opinion
___________________________________
Before QUINN, REAVIS and CAMPBELL, JJ.
Pending before this court is the application of Michael Anthony Taylor (Taylor) for
writ of mandamus. He requests that we enter “an order enjoining the judge of the 69th
District Court of Dallam County to hear and rule on [his] Motion for Order Nunc Pro Tunc.”
According to Taylor, the 69th District Court of Dallam County entered judgment sentencing
him to time in prison. Furthermore, the judgment purportedly reflects the incorrect “jail time
credit” to which he is entitled. So, Taylor allegedly filed the motion for an order nunc pro
tunc to correct the mistake. However, the trial court has yet to act upon it. For the reasons
which follow, we deny the petition pending before us.
First, to the extent that Taylor asks us to order the district court to grant the motion
for order nunc pro tunc pending before it, we cannot. When a trial court has yet to act on
a matter, authority entitles us only to order the court to act; it does not allow us to order it
to make a particular decision. O'Donniley v. Golden, 860 S.W.2d 267, 269 (Tex.
App.–Tyler 1993, orig. proceeding). Thus, we cannot direct the trial court to grant the
motion Taylor allegedly filed.
Second, the rules of appellate procedure obligate one seeking mandamus relief to
accompany his petition with an appendix. TEX . R. APP . P. 52.3(j). The latter must include,
among other things, a certified or sworn copy of the document showing the matter of which
the relator complains. In this case, the document showing the matter complained of would
be, at the very least, the motion for order nunc pro tunc Taylor allegedly filed. However,
we have neither the motion nor an appendix before us. Thus, Taylor not only failed to
comply with the rules of appellate procedure regulating mandamus, but also denied us a
record sufficient to enable us to assess his complaints.
Third, nothing of record indicates when the motion was filed and whether the trial
court was aware of it. Before mandamus relief may issue, the petitioner must establish that
the district court 1) had a legal duty to perform a non-discretionary act, 2) was asked to
perform the act, and 3) failed or refused to do so. O'Connor v. First Court of Appeals, 837
S.W.2d 94, 97 (Tex. 1992); In re Chavez, 62 S.W.3d 225, 228 ( Tex. App.–Amarillo 2001,
orig. proceeding). To the extent that Taylor complains of the district court's failure to rule
upon his motion, application of the foregoing rule would logically require him to illustrate
that the district court received and was aware of the document.1 This is so because a court
cannot be faulted for doing nothing when it was not aware of the need to act. Yet, in effort
1
Filing som ething with the d istrict clerk doe s not me an the trial court is aw are o f it. Nor is tha t clerk's
knowledge imputed to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig.
proceeding). Thus, it was incu mb ent upon Taylor to pro ve that the trial court received notice . Id. Me rely
allegin g that som ething was filed with o r ma iled to the district clerk is n ot enoug h. Id.
2
to satisfy this burden here, Taylor simply stated that he “filed a motion for order nunc pro
tunc in the 69th District Court.” However, he says nothing about whether the trial court has
knowledge of the motion or whether it was brought to its attention. Nor does he state
whether he actually filed the motion with the court clerk, the court administrator, the judge
himself, or someone else. Lacking that information, we cannot simply assume that the
district court knew of its duty to act and neglected to perform it.
Fourth, and assuming arguendo that the motion was brought to the attention of the
district court, the latter had and has a duty to consider and rule upon it. In re Bates, 65
S.W.3d 133, 134-35 (Tex. App.–Amarillo 2001, orig. proceeding); In re Ramirez, 994
S.W.2d 682, 683 (Tex. App.–San Antonio 1998, orig. proceeding). This is so because the
act of considering it is ministerial. In re Bates, 65 S.W.2d at 134-35; Safety-Kleen Corp.
v. Garcia, 945 S.W.2d 268, 269 (Tex. App.–San Antonio 1997, orig. proceeding), quoting
O'Donniley v. Golden, 860 S.W.2d at 269-70. However, it also has a reasonable time
within which to perform this duty. Id. And, whether that period lapsed depends upon the
circumstances of each case. In re Bates, 65 S.W.2d at 135. In other words, no bright line
demarcates the boundaries of a reasonable time period. Id. Many indicia are influential,
not the least of which are the date upon which the relief was sought, the length of time
which has since lapsed, the trial court's knowledge of the matter, its overt refusal to act on
same, the state of the court's docket, and the existence of other judicial and administrative
matters which must be addressed first. Id. So too must the trial court's inherent power to
control its own docket be included in the mix. In re Bates, 65 S.W.2d at 135; see Ho v.
University of Texas at Arlington, 984 S.W.2d 672, 694-695 (Tex. App.–Amarillo 1998, pet.
denied) (holding that a court has the inherent authority to control its own docket). Since
3
that power is discretionary, Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex. App.–Houston
[14th Dist.] 1997, no pet.), we must be wary of interfering with its exercise without legitimate
basis. And, since the party requesting mandamus relief has the burden to provide us with
a record sufficient to establish his right to same, In re Bates, 65 S.W.2d at 135; Walker v.
Packer, 827 S.W.2d 833 (Tex. 1992), Taylor had the obligation to provide us with a record
establishing that a properly filed motion has awaited disposition for an unreasonable length
of time. Yet, the record before us merely illustrates that Taylor may have filed some motion
on some unknown date. Nothing before us directly addresses the indicia discussed above.
Thus, Taylor failed to satisfy his burden of proof.
That Taylor may be acting pro se and be incarcerated matters not. He and those
in his position are obligated to abide by the rules of procedure. Holt v. F.F. Enterprises,
990 S.W.2d 756, 759 (Tex. App.–Amarillo 1998, pet. denied). Accordingly, the petition for
writ of mandamus is denied. Furthermore, it is ordered that a copy of this opinion, and
relator’s application for writ, be forwarded to the district court for the 69th Judicial District
for Dallam County by means which assure its receipt by the judge of said court.
Brian Quinn
Justice
4 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3066611/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsy Supply, Inc., :
Appellant :
:
v. : No. 334 C.D. 2015
: Argued: September 17, 2015
The Zoning Hearing Board :
of Silver Spring Township :
:
v. :
:
Township of Silver Spring :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 15, 2015
In this zoning appeal, Pennsy Supply, Inc. (Applicant) asks whether
the Court of Common Pleas of Cumberland County1 (trial court) erred in affirming
a decision of the Zoning Hearing Board of Silver Spring Township (ZHB) that
rejected Applicant’s substantive validity challenge to the Silver Spring Township
Zoning Ordinance of 2013 (zoning ordinance) and denied Applicant’s alternative
request for a validity variance. Applicant argues the ZHB erred in concluding
Applicant’s property was not reverse spot zoned and was not treated unjustifiably
different from similar surrounding land. Alternatively, Applicant asserts the ZHB
erred in concluding a validity variance should not be granted in order to avoid an
1
A panel consisting of President Judge Kevin A. Hess and Judges Albert H. Masland and
Christylee L. Peck heard and decided Applicant’s land use appeal. President Judge Hess
authored the opinion on behalf of the panel.
unconstitutional confiscation of its property. Discerning no merit in these
assertions, we affirm.
I. Background
Applicant owns and operates an existing quarry in Silver Spring
Township (Township), which lies in a Q Quarry zoning district. It also owns an
adjacent, vacant 18.5-acre parcel, referred to as the Hempt Tract, located at the
intersection of Millfording Road and Sample Bridge Road. The Hempt Tract lies
in an R-1 Residential district. Applicant seeks to expand its quarrying operation
onto the Hempt Tract.2
In November 2013, Applicant filed a substantive validity challenge to
the zoning ordinance with the ZHB in connection with the proposed expansion of
its quarrying activities on the Hempt Tract. Hearings ensued.
After hearings, the ZHB issued a decision in which it made the
following relevant findings. The Hempt Tract was zoned R-1 Residential at the
time Applicant purchased it. Applicant is the owner and operator of an existing
quarry that abuts the eastern and southern sides of the Hempt Tract. The existing
quarry, which began operations in 1959, has approximately 20 years of reserves to
mine. It has a mining area of approximately 167 acres.
2
An aerial image of the entire eastern portion of Silver Spring Township, including the
Hempt Tract, which includes a transparent overlay of the Township Zoning Map is found in the
Reproduced Record at 399a. A color copy of that document, which was admitted at the ZHB
hearing as Exhibit 20, is also appended to the Township’s brief.
2
The Hempt Tract is bordered to the west and north by land zoned R-1
Residential, including the Millfording Highlands residential development. Prior to
its purchase by Applicant, the Hempt Tract was part of the Millfording Highlands
residential development. Other than its geological suitability for quarrying, the
Hempt Tract does not have any extraordinary physical features, it is relatively flat,
and it is adjacent to the Millfording Highlands development. The geological
suitability of the Hempt Tract for quarrying does not impact its suitability for
development consistent with permitted uses in the R-1 district in which it lies. The
Hempt Tract is similar to the properties to the north of the tract. It is not
surrounded by land that is zoned other than or less restrictively than R-1
Residential.
Applicant’s existing quarry is virtually surrounded by residential and
commercial uses. There are no unique physical characteristics on the Hempt Tract
that would prevent Applicant from using it for a permitted use.
The Township presented the testimony of its engineer, Stephen
Fleming, P.E. Fleming is also a licensed real estate agent. Fleming noted that the
Hempt Tract is generally flat and slightly sloping, bounded to the east and the
south by the existing quarry and by an R-1 Residential district to the north and
west. Fleming also explained the Hempt Tract is bounded by two Township roads,
Sample Bridge Road to the west and Millfording Road, which accesses an existing
single-family residential development to the north. The Hempt Tract is served by
public water and public sewer. It does not appear the Hempt Tract is impacted by
floodplains, wetlands or other limiting features.
3
Fleming prepared two sketch plans for possible residential
development of the Hempt Tract using the cluster provision of the R-1 district.
The first sketch plan contains 56 lots with a minimum lot size of approximately
6,000 square feet, plus the required open space and two access points from
Millfording Road. The first sketch plan generally complies with the Township’s
zoning and subdivision and land development ordinances. The second sketch plan
contains 57 lots with a minimum lot size of approximately 6,000 square feet, plus
the required open space, and access from both Millfording Road and Sample
Bridge Road. The second sketch plan also generally complies with the Township’s
zoning and subdivision and land development ordinances. The overall cost for
development consistent with the second sketch plan is approximately $630,000,
which is generally consistent with a development of this size.
Fleming further testified the Hempt Tract has no extraordinary
features that would cause the development costs to significantly exceed that of
another property. Fleming also opined the Hempt Tract could be used for a use
permitted in the R-1 district without prohibitive expense. He based his opinion on
development and infrastructure costs of approximately $10,000 per lot which is in
line with other residential developments in the Township that are currently built
and sold.3
3
The Hempt Tract is subject to a landscape easement along the frontage of Sample
Bridge Road and Millfording Road, approximately 100 feet in width. The landscape easement
was created by agreement between the developers of Millfording Highlands and Applicant.
Applicant agreed to the imposition of the landscape easement on the Hempt Tract. The
landscape easement agreement states in paragraph 1 that: “[Applicant] hereby grants and
conveys unto Developers a perpetual, non-exclusive easement (hereinafter called the “Landscape
Easement”) …” ZHB Op., 5/12/14, Finding of Fact (F.F.) No. 47. Paragraph 6 of the agreement
states:
(Footnote continued on next page…)
4
The Township also presented the testimony of Larry Foote, a certified
general appraiser and licensed real estate broker. Foote testified regarding the
purchase price Applicant paid for the Hempt Tract and a reasonable sale price for
any lots created by a subdivision of the Hempt Tract. In preparation for his
testimony, Foote reviewed the date of the sale, the size of the property, the sale
price, the sale price per acre and the sales of other large tracts of residentially
zoned land that occurred over approximately a four-year time frame.
Foote explained that Applicant purchased the Hempt Tract for
$1,950,000 in March 2007. The Hempt Tract is 18.55 acres. The “per acre” price
for the Hempt Tract is $105,121. ZHB Op., 5/12/14, Finding of Fact (F.F.) No. 55.
Foote reviewed comparable sales prices for six large tracts of residentially zoned
land sold between 2004 and 2010. The “per acre” sales prices for these
comparable large residentially zoned tracts were: $28,743 per acre, $13,622 per
acre, $43,678 per acre, $34,841 per acre, $27,961 per acre, and $34,167 per acre.
The comparable sales prices ranged from a low of $13,622 per acre to a high of
$43,678 per acre. Foote did not find any raw residential land sales that approached
(continued…)
6. Restrictions. [Applicant] agrees that it shall not do any of the following
within the Landscape Easement: place any signs relating to its quarry
operation; perform any activities incidental to its quarry operations;
change the finished grading; disturb any of the Vegetation except as
otherwise permitted in this Agreement; or take any action inconsistent
with the purposes of the establishment of said Landscape Easement, that
being to maintain the appearance of a residential development.
F.F. No. 48.
5
the price that Applicant paid for the Hempt Tract. Foote opined that, based on the
comparable sales data, Applicant paid an excessive price for the Hempt Tract.
In preparation for his testimony, Foote also examined the sales prices
and lot sizes for sales of vacant, single-family building lots along Millfording
Road, which are across the street from the Hempt Tract and the existing quarry.
The sale prices of the five comparable, vacant single-family building lots were: 1
Millfording Road, $172,500; 3 Millfording Road, $136,750; 5 Millfording Road,
$136,750; 7 Millfording Road, $136,750; and, 129 Balfour Drive, $100,000.
Based on the comparable sales, Foote opined the lots depicted on the sketch plans
could reasonably sell in the range of $80,000 to $90,000 per lot.
Before the ZHB, Applicant asserted, among other things: (1) the
zoning ordinance was invalid because the Hempt Tract was unlawfully reverse spot
zoned; and, (2) in the alternative, Applicant was entitled to a validity variance.
The ZHB rejected both claims.4
As to Applicant’s reverse spot zoning challenge, the ZHB explained
that spot zoning is the unreasonable or arbitrary classification of a small parcel of
land, dissected or set apart from surrounding properties, with no reasonable basis
for the differential zoning. BPG Real Estate Investors-Straw Party II, L.P. v. Bd.
of Supervisors of Newtown Twp., 990 A.2d 140 (Pa. Cmwlth. 2010). The most
determinative factor in an analysis of a spot zoning question is whether the parcel
4
Applicant also asserted the Township Zoning Map was invalid because it failed to
provide for a “fair share” of quarries. The ZHB rejected this claim. Applicant does not
challenge the ZHB’s rejection of its “fair share” argument before this Court.
6
in question is being treated unjustifiably different from similar surrounding land,
thus creating an “island” having no relevant differences from its neighbors. Id.
Reverse spot zoning occurs when an “island” develops as a result of a
municipality’s failure to rezone a portion of land to bring it into conformance with
similar surrounding parcels that are indistinguishable. Atherton Dev. Co. v Twp.
of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011).
The ZHB determined the facts presented here bore a strikingly
similarity to the facts presented in Atherton, in which this Court rejected a reverse
spot zoning challenge. Specifically, like the property at issue in Atherton, here the
Hempt Tract is not completely surrounded by land zoned for less restrictive use;
rather, it is adjacent to land zoned and developed for R-1 residential use to the
north and west, and quarry use to the south and east. The ZHB explained there
was no evidence that the R-1 zoning of the Hempt Tract was unjustified. There are
no physical characteristics of the Hempt Tract that distinguish it from either the
land zoned R-1 residential or the land zoned for quarry use. There is also no
evidence that the Hempt Tract cannot, because of any physical or other
characteristics, be developed in accordance with the R-1 district regulations. All of
these facts, the ZHB stated, were strikingly similar to the facts in Atherton.
In addition, the ZHB distinguished this case from our Supreme
Court’s decision in In re Realen Valley Forge Greenes Associates, 838 A.2d 718
(Pa. 2003), which sustained an applicant’s reverse spot zoning challenge. Thus,
the ZHB rejected Applicant’s reverse spot zoning claim.
7
As to Applicant’s claim of entitlement to a validity variance, the ZHB
explained a validity variance is based on the theory that an otherwise valid
ordinance is confiscatory when applied to a particular parcel in that it deprives the
owner of any reasonable use of his property. Laurel Point Assocs. v. Susquehanna
Twp. Zoning Hearing Bd., 887 A.2d 796 (Pa. Cmwlth. 2005). In such a case, the
issuance of a variance is necessary to permit a reasonable use of the land and, thus,
prevent an unconstitutional taking of the property. Id.
To obtain a validity variance, an applicant must establish: (1) the
effect of the regulations complained of is unique to its property and not merely a
difficulty common to other properties in the neighborhood; and, (2) the regulation
is confiscatory in that it deprives the owner of the use of the property. Id. In
addition, the applicant must prove it satisfies the variance criteria set forth in
Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC).5
To establish the confiscatory nature or the zoning regulation, an
applicant must prove the land has no value or only distressed value. Laurel Point
Assocs. To meet this burden the applicant must show: (1) the physical features of
the property are such that it cannot be used for a permitted purpose; or (2) that the
property can be conformed for a permitted use only at a prohibitive expense; or, (3)
that the property has no value for any purpose permitted by the zoning ordinance.
Laurel Point Assocs.
5
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as
amended, 53 P.S. §10910.2.
8
Here, the ZHB determined Applicant did not present credible
evidence to prove, by any of the above stated means, that the zoning ordinance is
confiscatory as it relates to the Hempt Tract. To the contrary, the evidence
established, and the ZHB determined, the zoning ordinance is not confiscatory.
Specifically, the ZHB found there are no physical features of the Hempt Tract
which prevent Applicant from developing it as a 57-lot, single-family residential
development, which is a permitted use.
In addition, the ZHB found it would not be prohibitively expensive to
develop the Hempt Tract with such a development as the costs would be typical of
a development of its type and size. Lastly, the ZHB found the Hempt Tract has
value as zoned in that the lots in such a development could reasonably sell for
$80,000 to $90,000 per lot. The ZHB also explained the undisputed evidence
revealed the price Applicant paid for the Hempt Tract was more than two to seven
times the “per acre” price paid for comparable, large, residentially zoned parcels.
ZHB Op. at 16.6
6
The ZHB further stated Applicant also claimed the Hempt Tract could not be developed
as a single-family residential development because there can be no access from a public street as
a result of the landscape easement agreement. The ZHB rejected this argument. Specifically,
Applicant itself entered into the landscape easement agreement with the developer of Millfording
Highlands. Thus, Applicant agreed to imposition of the landscape easement on the Hempt Tract.
The ZHB stated the landscape easement was a non-exclusive easement established to reduce the
impact of any quarrying activities on the Hempt Tract from affecting the Millfording Highlands
development. Nowhere in the easement agreement does it state that an access road could not be
constructed across the landscape easement from the Hempt Tract onto Millfording Drive or
Sample Bridge Road. Further, even if the landscape easement did prevent access to the Hempt
Tract, it was not a “unique physical feature” that would prevent development of the Hempt Tract
in a manner consistent with the zoning ordinance. ZHB Op. at 17.
9
For all these reasons, the ZHB rejected Applicant’s requested relief.
Applicant appealed to the trial court.
Before the trial court, Applicant argued the ZHB erred in rejecting its
reverse spot zoning and validity variance claims. Without taking additional
evidence, the trial court rejected both of these assertions, and affirmed the ZHB.
More specifically, the trial court determined the ZHB’s rejection of
Applicant’s reverse spot zoning claim was proper given that the ZHB’s detailed
findings revealed the Hempt Tract is not an island nor is it surrounded by
properties that changed in character. After a discussion of this Court’s decision in
Atherton, and the Supreme Court’s decision in Realen, the trial court stated that,
while the Hempt Tract is contiguously bordered to the east and south by the
existing quarry, there are also contiguous residential zones to the north and west.
Thus, even though the existing quarry expanded in 2011, the Hempt Tract is not
the sole remaining residential property in the immediate area. The trial court also
noted the ZHB’s finding that the Hempt Tract could be used for residential
purposes in accordance with its current zoning classification. As such, unlike the
property at issue in Realen, the Hempt Tract is not a true island, nor has it been left
behind as the character of the surrounding properties changed.
As to Applicant’s claim that the ZHB erred in denying the requested
validity variance, the trial court explained that Applicant did not establish the
zoning ordinance was confiscatory and did not rebut evidence that the claimed
hardship claimed was self-inflicted. The trial court stated that, in its findings, the
10
ZHB established that the Hempt Tract was economically viable as currently zoned,
and the trial court saw no basis to substitute its judgment for that of the ZHB.
The trial court further explained that, prior to purchasing the Hempt
Tract, Applicant maintained a 200-foot setback area in the existing quarry within
which mining was not permitted. Upon acquiring the Hempt Tract, the setback
requirement no longer applied because Applicant owned both tracts, and, as a
result, Applicant began mining within the former setback area. In order to develop
the Hempt Tract for residential use, Applicant claimed, it would have to reestablish
the setback, which prevented it from using all of its existing quarry property in the
manner in which it wished to use it. However, the trial court explained, Applicant
purchased the Hempt Tract when it was zoned R-1 residential, and Applicant
created the situation in which it currently found itself by mining in the former
setback area. The fact remains, and the ZHB found, that the Hempt Tract can be
developed as zoned. The trial court explained that, the fact that the zoning of the
Hempt Tract would remain unchanged was a risk Applicant took when it acquired
the Hempt Tract and began mining within the setback area. By its own actions, the
trial court stated, Applicant prevented a determination that the denial of the
requested validity variance resulted in a confiscatory taking.
For these reasons, the trial court denied Applicant’s appeal and
affirmed the ZHB’s decision. This appeal by Applicant followed.
11
II. Issues
On appeal,7 Applicant argues the ZHB erred in concluding the Hempt
Tract was not reverse spot zoned and was not subjected to unjustifiably different
treatment from similar surrounding land. Alternatively, Applicant asserts the ZHB
erred in denying Applicant a validity variance in order to avoid an unconstitutional
confiscation of Applicant’s property.
III. Discussion
A. Reverse Spot Zoning
1. Contentions
Applicant first argues the Hempt Tract was subjected to reverse spot
zoning and is being treated differently from surrounding land that is
indistinguishable from it in character to Applicant’s detriment. Applicant contends
that most of the land adjoining the Hempt Tract was rezoned into a Q Quarry
district so that the Hempt Tract is a peninsula largely surrounded by an existing
quarry.
Applicant maintains neither the size of the Hempt Tract (18.5 acres)
nor its shape as a peninsula precludes it from being characterized as spot-zoned
according to established principles of jurisprudence. Applicant further asserts that
use of the Hempt Tract for quarrying will not adversely affect community health,
safety, morals, or welfare, nor would it impose any additional burden on municipal
infrastructure or services.
7
Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
of law. Penn Street, L.P. v. E. Lampeter Twp. Zoning Hearing Bd., 84 A.3d 1114 (Pa. Cmwlth.),
appeal denied, 99 A.3d 78 (Pa. 2014). The ZHB is the fact-finder here. Id.
12
Applicant points out that attached to its brief is an exhibit admitted
during the ZHB hearings that shows the location of the Hempt Tract and
surrounding properties. On the exhibit, the Hempt Tract is an imperfect,
triangular-shaped parcel marked “B.” To the east and south is the Q Quarry
district, which is now being mined, and is marked “A.” To the west, the Hempt
Tract is bordered by Sample Bridge and Millfording Roads. On the other side of
those roads is R-1 residentially zoned land marked “C.”
Applicant argues the Hempt Tract was zoned residential R-11 from
1975 to 1995, and R-1 from 1995 to the present. Reproduced Record (R.R.) at
120a. Prior to 1995, the land now occupied by the existing quarry was zoned
Residential R-6 at the southwest and the northwest part was R-11 until 1988. R.R.
at 119a-20a. Then, in 1988, the northwest part of the existing quarry was rezoned
to Mineral Recovery District. R.R. at 120a. In 1995, the entire 167-acre site of the
existing quarry was rezoned as a Q Quarry district. Id.
As a result of the creation of the Q Quarry district, Applicant
maintains, the Hempt Tract was reverse spot zoned. Applicant claims the Hempt
Tract is a wedge intruding like an arrowhead into the Q Quarry district. Applicant
contends that there is no reasonable basis for treating the Hempt Tract differently
from the land in the Q Quarry district, which borders it on much of its boundary.
The terrain is the same, the soil is the same, the dolomite beneath is the same and
the vegetation is the same. As the ZHB stated in Conclusion of Law No. 25, there
are no features distinguishing it from the land in the Q Quarry district.
13
Applicant asserts the ZHB and the trial court erred in concluding the
Hempt Tract could not be reverse spot zoned because it was not an “island” and
because it is too large. Applicant maintains the foremost treatise on zoning in
Pennsylvania, states:
While most ‘spot’ zoning cases involve a smaller use
‘island’ located in any area of inconsistent uses, it is not
necessary that the tract be an island or that it be small.
The test is whether an area has been treated without
justification in a manner inconsistent with the
surrounding area. The ‘island’ is simply the most
common form of inconsistency.
Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE §3.4.9 (revised July
31, 2005).
Applicant contends the assertion that spot zoning applies only to
“islands” is incorrect. In Atherton, the common pleas court observed, “case law
does not directly address whether or not reserve spot zoning may be claimed when
the tract in question forms a peninsula, rather than an island.” Id. at 1209. This
Court agreed, adding “there is no obvious policy reason why spot zoning
jurisprudence should not fully apply to reverse spot zoning cases.” Id. Applicant
notes that spot zoning jurisprudence includes cases that apply spot zoning
principles to peninsulas. Knight v. Lynn Twp. Zoning Hearing Bd., 568 A.2d 1372
(Pa. Cmwlth. 1990); C.L. Assocs. v. Bd. of Supervisors of Montgomery Twp., 415
A.2d 134 (Pa. Cmwlth. 1980).
Applicant argues the fact that one side of the Hempt Tract borders on
a road on the other side of which is a R-1 district does not preclude a finding that
14
spot zoning occurred here. It asserts that Baker v. Chartiers Township Zoning
Hearing Board, 677 A.2d 1274 (Pa. Cmwlth. 1996), involved a spot zoning
challenge that is analogous to Applicant’s challenge here. There, this Court held
the property at issue was illegally spot-zoned. In so doing, we stated: “A zone can
be a spot zone even if it is a peninsula surrounded on all but one side by
inconsistently zoned land, as appears to be the case here.” Id.
Here, Applicant contends, the fact that the Hempt Tract is contiguous
(although separated by a road) to a R-1 district does not bar a finding of spot
zoning. The Hempt Tract is a peninsula jutting into the Quarry district just like the
property at issue in Baker. Pursuant to Baker, the fact of contiguity to a
consistently zoned district on one side does not bar a finding of spot zoning. Thus,
in Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d
1114 (Pa. Cmwlth.), appeal denied, 99 A.3d 78 (Pa. 2014), this Court
acknowledged a peninsula (a parcel surrounded on three of four sides by properties
with less restrictive zoning classifications) could be unlawfully spot zoned.
Applicant contends the ZHB relied on Atherton for the proposition
that a finding of spot zoning cannot be made where the property is contiguous to
another parcel with the same zoning. It asserts such reliance is erroneous because,
even if Atherton can be read to include such a holding, it conflicts with Baker, a
binding precedent that Atherton neither overruled nor distinguished.
Applicant further maintains, contrary to the ZHB’s assertion that spot
zoning is limited to “a small parcel of land,” the 18.5 acre Hempt Tract is not too
15
large to be spot zoned. If a parcel is a “single integrated unit,” it makes no
difference if it is a .25-acre lot or a 50-acre industrial complex–it can be spot
zoned. Commercial Props., Inc. v. Peternel, 211 A.2d 514 (Pa. 1965). Thus, the
Supreme Court held the 135-acre tract in Realen was reverse spot- zoned. See also
Baker (221-acre farm was spot zoned); Pace Res., Inc. v. Shrewsbury Twp.
Planning Comm’n, 492 A.2d 818 (Pa. Cmwlth. 1985) (37-acre tract was spot-
zoned); Appeal of Benech, 368 A.2d 828 (Pa. Cmwlth. 1977) (80-acre tract was
spot zoned).
Applicant asserts the ZHB committed several fundamental errors of
law: (1) it ignored uncontradicted evidence that the Hempt Tract’s characteristics
are indistinguishable from the characteristics of the Q Quarry district, which is
contiguous on two of its three sides; (2) it concluded a parcel must be an “island”
to be spot-zoned; (3) it concluded the 18.5-acre Hempt Tract was too large to be
spot-zoned; and, (4) it ignored that there is no reasonable justification for treating
the Hempt Tract differently from the adjacent Q Quarry district because a 300-foot
setback requirement imposed by state regulations will apply to the border of the
Hempt Tract and the residences across the road, see 25 Pa. Code §§77.126
(A)(4)(ii), 77.504(A)(2), 77.564(G)(4). Because the Hempt Tract was spot zoned,
Applicant asserts, it is entitled to the definitive relief it seeks: use of the Hempt
Tract for quarrying.
16
The Township8 responds that reverse spot zoning occurs where an
“island” develops as a result of a municipality’s failure to rezone a portion of land
to bring it into conformance with similar surrounding parcels that are
indistinguishable. The Township argues the Hempt Tract is neither completely
surrounded nor surrounded on three sides by land zoned for quarry use; rather it is
adjacent to land zoned and developed for R-1 use to the north and west, and quarry
use to the south and east. The Hempt Tract has no physical characteristics that
distinguish it from either the land zoned residential or the land zoned for quarry
use. There is also no evidence that the Hempt Tract cannot, because of any
physical or other characteristics, be developed in accordance with the R-1 district
regulations. The Township relies on Penn Street and Atherton, in which this Court
rejected reverse spot zoning challenges in similar factual scenarios.
In its reply brief, Applicant counters that the ZHB and the Township
erroneously rely on the fact that the Hempt Tract is not an “island” in defending
the tract against reverse spot zoning. Applicant argues that, although courts may
consider whether a property is an “island” in reviewing a spot zoning claim, the
fact that a property is not an “island” does not bar a finding of spot zoning or
reverse spot zoning.
Further, Applicant contends, in refuting a finding of reverse spot
zoning, the Township relies on the fact that the Hempt Tract is adjacent to land
developed and zoned R-1 Residential. Applicant argues this ignores the reality of
8
The ZHB indicated it would not file a brief, stating its position is identical to that of the
Township.
17
the Hempt Tract’s location in the Township. While it is true a R-1 district adjoins
the Hempt Tract on the other side of a street, the majority of the Hempt Tract is a
“wedge” (i.e., a peninsula) that extends into the existing Quarry district. The
Hempt Tract is akin to a piece of pie that was engulfed by the quarry. As a result,
Applicant argues, while the Township slowly rezoned the existing quarry from
residential to the now Q Quarry district use over a period from 1988-1995, the
Hempt Tract, which extends into the existing quarry, remains zoned for residential
use. R.R. at 119a-120a. Such action results in the reverse spot zoning of the
Hempt Tract as it is now treated differently than the contiguous quarry without
justification.
2. Analysis
At the outset, we note, this Court may not substitute its interpretation
of the evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing
Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). It is the ZHB’s function to weigh the
evidence before it. Id. The ZHB is the sole judge of the credibility of witnesses
and the weight afforded their testimony. Id. Assuming the record contains
substantial evidence, we are bound by the ZHB’s findings that result from
resolutions of credibility and conflicting testimony. Id.
As to the standards employed in analyzing a substantive validity
challenge, in Realen, our Supreme Court explained:
[A] zoning ordinance must be presumed constitutionally
valid unless a challenging party shows that it is
unreasonable, arbitrary, or not substantially related to the
police power interest that the ordinance purports to
serve[;] nevertheless, [a]mong other reasons, an
ordinance will be found to be unreasonable and not
18
substantially related to a police power purpose if it is
shown to be unduly restrictive or exclusionary....
Similarly, an ordinance will be deemed to be arbitrary
where it is shown that it results in disparate treatment of
similar landowners without a reasonable basis for such
disparate treatment.... Moreover, in reviewing an
ordinance to determine its validity, courts must generally
employ a substantive due process inquiry, involving a
balancing of landowners’ rights against the public
interest sought to be protected by an exercise of the
police power.
Moreover, [t]he substantive due process inquiry,
involving a balancing of landowners’ rights against the
public interest sought to be protected by an exercise of
the police power, must accord substantial deference to
the preservation of rights of property owners, within
constraints of the ancient maxim of our common law, sic
utere tuo ut alienum non laedas. 9 Coke 59-So use your
own property as not to injure your neighbors. A property
owner is obliged to utilize his property in a manner that
will not harm others in the use of their property, and
zoning ordinances may validly protect the interests of
neighboring property owners from harm.
Hence, the function of judicial review, when the
validity of a zoning ordinance is challenged, is to engage
in a meaningful inquiry into the reasonableness of the
restriction on land use in light of the deprivation of
landowner’s freedom thereby incurred.
Id. at 728-29 (citations omitted).
Spot zoning is the “unreasonable or arbitrary classification of a small
parcel of land, dissected or set apart from surrounding properties, with no
reasonable basis for the differential zoning.” Penn Street, 84 A.3d at 1121
(quoting Atherton, 29 A.3d at 1204); BPG Real Estate Investors, 990 A.2d at 150;
Christman v. Zoning Hearing Bd. of Twp. of Windsor, 854 A.2d 629, 634-35 (Pa.
19
Cmwlth. 2004). “When faced with a spot zoning challenge, a reviewing court
must presume the zoning ordinance is valid and constitutional; the burden of
proving otherwise is on the challenging party, who must show that the provisions
are arbitrary and unreasonable, and have no relation to the public health, safety,
morals, and general welfare.” Id. (quoting Atherton, 29 A.3d at 1204); Christman,
854 A.2d at 635.
“Spot zoning must be clearly established; if the validity of the
rezoning ordinance is debatable, it must be permitted to stand.” Id. The most
determinative factor in an analysis of a spot zoning question is whether the parcel
at issue is being treated unjustifiably different from similar surrounding land, thus
creating an “island” having no relevant differences from its neighbors. Id.
“There is no precise formula for determining whether a classification
of property constitutes spot zoning and cases should be decided on the facts guided
by case law.” Id. (quoting Sharp v. Zoning Hearing Bd. of Twp. of Radnor, 628
A.2d 1223, 1228 (Pa. Cmwlth. 1975)).
Reverse spot zoning, the theory advanced by Applicant, occurs where
an “island” develops as a result of a municipality’s failure to rezone a portion of
land to bring it into conformance with similar surrounding parcels that are
indistinguishable. Realen; Penn Street; Atherton; Briar Meadows Dev., Inc. v. S.
Centre Twp. Bd. of Supervisors, 2 A.3d 1303 (Pa. Cmwlth. 2010); LHT Assocs. v.
Twp. of Hampton, 809 A.2d 1072, 1075 (Pa. Cmwlth. 2002); Guentter v.
Montgomery Cnty., Borough of Lansdale, 345 A.2d 306 (Pa. Cmwlth. 1975).
20
Here, in rejecting Applicant’s reverse spot zoning claim, the ZHB
made the following pertinent findings (with emphasis added):
2. [Applicant] is the owner of an approximately 18.5 acre
vacant tract of land located at the intersection of
Millfording Road and Sample Bridge Road … (N.T. pp.
46, 299, Township Exhibits 20 and 21)
3. The [Hempt Tract] is zoned R-1, Residential Zone.
(N.T. p[.] 302; Township Exhibits 19A and 19B).
4. The [Hempt Tract] was also zoned R-1 Residential
Zone when [Applicant] purchased it. (N.T. p. 46).
5. [Applicant] is the owner and operator of an existing
quarry that abuts the eastern and southern sides of the
[Hempt Tract] …. N.T. pp. 46, 302, Township Exhibits
20 and 21.
****
10. The [e]xisting [q]uarry is zoned Q, Quarry Zone.
(N.T. p. 28; Township Exhibits 19A and 19B).
11. The [Hempt Tract] is butted to the west and north by
land zoned R-1 Residential Zone, including the
Millfording Highlands development. (N.T. pp. 302-303;
Township Exhibits 20 and 21).
12. Prior to its purchase by [Applicant], the [Hempt
Tract] was part of the Millfording Highlands
development. (N.T. p. 305).
13. Other than its geological suitability for quarrying, the
[Hempt Tract] does not have any extraordinary physical
features, it is relatively flat in nature and it is adjacent to
the Millfording Highlands development. (N.T. pp. 229,
303, 341). The geological suitability of the [Hempt Tract]
for quarrying does not impact upon its suitability for
development consistent with the permitted uses in the
district.
21
14. The [Hempt Tract] is similar to the properties to the
north of the tract. (N.T. p. 303).
15. The [Hempt Tract] is not surrounded by land that is
zoned other than or less restrictively than R-1 Residential
Zone. (N.T. [pp.] 302-303; Township Exhibits 20 and
21).
16. [Applicant’s] [e]xisting [q]uarry is virtually
surrounded by residential and commercial uses. (N.T. p.
306; Township Exhibits 20 and 21).
17. There are no unique physical characteristics on the
[Hempt Tract] which would prevent it from being used
for something for which it is zoned. (N.T. pp. 48, 340-
346; Township Exhibits 25 and 26).
ZHB Op., 5/12/14, Findings of Fact (F.F.) Nos. 2-5, 10-17. Additionally, the ZHB
made the following pertinent conclusions of law (with emphasis added):
23. The [Hempt Tract] is not completely surrounded by
land zoned Quarry, rather it is adjacent to land zoned and
developed as R-1 Residential to the north and [west] and
Quarry to the south and east.
24. There is no evidence that the R-1 zoning the [Hempt
Tract] is unjustified.
25. There are no physical characteristics of the [Hempt
Tract] which distinguish it from either the land zoned R-1
Residential or the land zoned Quarry.
26. There is no evidence that the [Hempt Tract] cannot,
because of any physical or other characteristics[,] be
developed in accordance with the R-1 Residential
District.
27. Because the facts of Realen are vastly different from
those of the present case, the Realen decision is not
controlling.
22
28. [Applicant] has not met its burden of proof to show
that a reverse spot zone has been created with regard to
the [Hempt Tract].
ZHB Op., Concls. of Law Nos. 23-28. Upon review, we discern no error in the
ZHB’s rejection of Applicant’s reverse spot zoning claim.
Specifically, the irregularly-shaped Hempt Tract is neither an
“island,” nor as Applicant contends, a “peninsula,” which is completely
surrounded, or surrounded on all but one side by properties with less restrictive
zoning classifications. Indeed, our review of the record confirms the ZHB’s
determinations that, although the property to the south and east of the Hempt Tract
is zoned for Quarry use, the properties to the north and west are zoned R-1
Residential, like the Hempt Tract. See F.F. Nos. 5, 11, 33; R.R. at 325a, 399a.
Indeed, Millfording Highlands, a large residential development, is located to the
north of the Hempt Tract, and the Hempt Tract is bounded by Millfording Road,
which accesses the Millfording Highlands residential development. F.F. No. 34;
R.R. at 325a.
In addition, the R-1 Residential zoning classification of the Hempt
Tract, as compared to the Q Quarry zoning classification of the property to the
south and east, is justified. To that end, the ZHB, as fact-finder, found that prior to
Applicant’s purchase the Hempt Tract was part of the Millfording Highlands
residential development. F.F. No. 12; R.R. at 289a. Further, other than its
geological suitability for quarrying, the Hempt Tract has no extraordinary physical
features, it is relatively flat, and it is adjacent to the Millfording Highlands
development. F.F. No. 13; R.R. at 287a, 325a. The ZHB found the Hempt Tract is
23
similar to the residentially zoned properties to its north, F.F. No. 14; R.R. at 287a,
and it contains no unique physical features that would prevent Applicant from
using it for a permitted use in the R-1 district. F.F. No. 17; R.R. at 102a, 323a-
330a, 409a-410a. Thus the ZHB expressly determined there was no evidence that
the Hempt Tract’s R-1 zoning classification was unjustified. Concl. of Law No.
24.
Nevertheless, Applicant points to the fact that the existing quarry,
which lies to the south and east of the Hempt Tract, was zoned for residential use
until 1995, when it was rezoned for quarry use, while the Hempt Tract retained its
residential zoning classification. However, Applicant makes no assertion that the
properties to the north and west of the Hempt Tract, which are currently zoned for
residential use, were rezoned from more restrictive zoning classifications over
time. Thus, Applicant offers an incomplete picture of the rezoning of the
surrounding properties, which is insufficient to bolster its reverse spot zoning
claim.
Further, contrary to Applicant’s assertions, the ZHB did not reject
Applicant’s reverse spot zoning claim simply because the Hempt Tract is not an
“island” of residentially zoned land or because it is too large. Rather, the ZHB
employed the correct analysis in evaluating Applicant’s reverse spot zoning claim.
As stated above, the most determinative factor in an analysis of a spot zoning
question is whether the parcel at issue is being treated unjustifiably different from
similar surrounding land, thus creating an “island” having no relevant differences
24
from its neighbors. Here, the ZHB determined the Hempt Tract is not an “island”
that is being treated unjustifiably different from surrounding properties.
Moreover, while Applicant repeatedly refers to the Hempt Tract as a
peninsula, which is surrounded on two of its three sides by less restrictively zoned
properties, our review of the zoning map belies this assertion. See R.R. at 399a (a
color version of which is appended to the Township’s brief). Additionally, even if
Applicant were correct in its characterization of the Hempt Tract as a “peninsula,”
in our 2014 decision in Penn Street, we recognized that, “up to this point there has
been no successful claim of reverse spot zoning in a ‘peninsula’ [(as opposed to an
‘island’)] fact situation.” Id. at 1126 (quoting Atherton, 29 A.3d at 1209).
Moreover, in Penn Street and Atherton, we rejected claims of spot
zoning in cases that presented fairly similar factual scenarios to the facts presented
here. First, in Atherton, the applicant filed a validity challenge to the township
zoning map questioning the high density residential zoning classification of its
property. It sought to have the property rezoned for commercial use. The local
governing body rejected the applicant’s claim that its property was reverse spot
zoned. The common pleas court affirmed.
In upholding the rejection of the applicant’s reverse spot zoning
challenge, this Court explained that the property at issue was not entirely
surrounded by commercially zoned properties; rather, it was bounded on one side
by residential use and partially, on another side, by residential use. More
importantly, there was no indication that the property’s residential zoning
25
classification was unjustified. To the contrary, the fact-finder reasonably
explained why the property was treated differently than some of the surrounding
areas. The fact-finder also determined the property was more compatible with the
adjoining residential land than the adjoining commercial land, and it offered
record-based reasons for its determination. Additionally, while the applicant’s
witnesses expressed their preference to develop the property for commercial use,
the applicant conceded the subject property was indistinguishable in character from
the adjoining residential use.
Thereafter, in Penn Street, the applicant filed a substantive validity
challenge to a township zoning ordinance, claiming, among other things, the rural
zoning classification of its property constituted reverse spot zoning. There,
commercial properties bordered the applicant’s property to the north and east,
while the properties to the south and west were zoned rural like the applicant’s
property. The zoning board rejected the applicant’s reverse spot zoning claim, and
the common pleas court affirmed.
On further appeal, this Court affirmed, explaining the property was
neither an island nor a peninsula of land surrounded by properties with less
restrictive zoning classifications. Further, the rural zoning of the property was not
unjustified because the commercially zoned properties had frontage on the area’s
primary commercial artery, while the applicant’s property did not. This Court also
pointed to the zoning board’s finding that the applicant’s property had no physical
features that differed substantially from the rural zoned properties to the south and
west.
26
Further, in both Atherton and Penn Street, we explained that where
“an honest difference of opinion” exists as to how a property should be zoned, and
“sound policy” could support a decision that a property was properly zoned for
either of two competing zoning classifications, we could not disturb a local
governing body’s legislative decision. Penn Street, 84 A.3d at 1126 (quoting
Atherton, 29 A.3d at 1207). Thus, “[i]t is well established that, if the validity of
the legislation is fairly debatable, the legislative judgment must be allowed to
control.” Id.
Moreover, in both Atherton and Penn Street, we distinguished Realen,
discussed by Applicant here. We explained that Realen involved “the validity of
the agricultural zoning of a tract located in the heart of one of the most highly
developed areas in the region, entirely surrounded by an urban landscape, and
immediately adjacent to what is currently the world’s largest shopping complex at
one discrete location: the Court and the Plaza at King of Prussia.” Realen, 838
A.2d at 720. The 135-acre property at issue in Realen, which was zoned
agricultural, was used as a golf course and was located at the confluence of the
region’s primary arterial highways and immediately adjacent to one of the most
intensely developed commercial areas in the region. Although surrounding tracts
were originally zoned for agricultural use, between 1955 and 1985, the vast
majority of the properties in the agricultural district were rezoned to permit intense
commercial development, with the exception of the golf course tract. The
equitable owner of the golf course tract, who sought to develop it for a large multi-
use development, challenged the validity of the tract’s agricultural zoning. The
zoning board, court of common pleas and this Court rejected the challenge.
27
On further appeal, however, a majority of the Supreme Court
sustained the developer’s reverse spot zoning challenge. In so doing, the Court
employed a substantive due process analysis, balancing the landowner’s rights
against the public interest sought to be protected by an exercise of the police
power. The Court explained that in reviewing a spot zoning challenge, the critical
inquiry is whether the rezoned land was treated unjustifiably different from similar
surrounding land. It stated, “[t]he question is whether the lands at issue are a
single, integrated unit and whether any difference in their zoning from that of
adjoining properties can be justified with reference to the characteristics of the
tract and its environs.” Id. at 730. The Court concluded no difference in the
zoning could be justified. Specifically, the Court, speaking through former Justice
Lamb, stated:
We hold that th[e] agricultural zoning [of the property at
issue], designed to prevent development of the [property
at issue] and to ‘freeze’ its substantially undeveloped
state for over four decades in order to serve the public
interest as ‘green space’, constitutes unlawful ‘reverse
spot zoning’ beyond the municipality’s proper powers.
…
Of the land characteristics offered by the zoning
board in support of its rejection of the spot zoning
challenge, only the size of the tract and its location
entirely bounded by arterial highways, are the subject of
any discussion. There can be no question, as the zoning
board found, that arterial roadways are, in many
instances, an appropriate feature to be designated as the
boundary between incompatible zoning districts. But the
issue here is not whether any zoning district designation
could be appropriately applied to the [g]olf [c]lub’s lands
but whether the [agricultural zoning] [d]istrict
designation can be so justified. It turns reason and land
planning precepts on their head to assert, as the zoning
board’s decision implies, that this tract’s restricted,
28
agricultural zoning is justified by its ready access to the
region’s primary arterial roads on every hand. Apart from
a bare assertion that it is so, neither the zoning board nor
the courts below have offered either reason or authority
to support the proposition, essential to the propriety of
the decision here reviewed, that the location of [the]
highways [that entirely bound the golf course property]
makes agricultural zoning appropriate for this tract while
the properties on the opposite side of the same roadways
are appropriately zoned and developed for intense,
commercial use. Any relationship between agricultural
zoning and the other tract characteristics identified in the
decisions below, including the property’s topography and
shape, is similarly unexplored in the evidence of record,
the findings of the [b]oard, or the arguments of appellees.
…
On this record, no characteristic of the [g]olf
[c]lub’s property justifies the degree of its developmental
restriction by zoning as compared to the district
designation and use of all of the surrounding lands both
within the [t]ownship and in the adjoining municipality.
This is spot zoning.
We recognize that the circumstances here
presented differ factually from the spot zoning cases we
have previously decided in the chronology of the
municipal action creating the unjustified ‘island’ of
disparate zoning. In previous cases, the island was
created by a single municipal act directed toward the
property which became the disputed island; either to that
property owner’s benefit or detriment. Here, in contrast,
the [g]olf [c]lub’s status as an island of agricultural
zoning was the product of a series of rezonings of
surrounding properties beginning in the 1950’s and
ending in about 1985.
[The developer] contends that the origin of a
tract’s unjustified zoning treatment as compared to
adjoining properties is not decisive and we agree. It is
the difference in treatment that must be justified, not its
origin or chronology. Some courts have used the term
‘reverse spot zoning’ to describe the circumstances where
29
the unjustified difference in treatment arises from the
rezoning of lands surrounding the tract at issue and this
term appropriately underscores the distinction between
cases like that here presented where an island is created
by the rezoning of other land from the more common
situation where the challenged legislation is that creating
the island tract.
Id. at 721, 730-31 (emphasis in original). As a result, the Supreme Court sustained
the developer’s validity challenge.9
For the reasons set forth above, the case presently before this Court is
distinguishable from Realen. Specifically, the Hempt Tract is not completely
surrounded or surrounded on three sides by properties with less restrictive zoning
classifications. In fact, the properties to the north and west of the Hempt Tract are
zoned R-1 Residential, like the Hempt Tract. More importantly, the ZHB
determined there was no evidence that the R-1 residential zoning of the Hempt
Tract was unjustified. ZHB Op., Concl. of Law No. 24. The ZHB further
determined that the Hempt Tract is similar to the residentially zoned properties to
its north; in fact, it was previously part of the existing Millfording Highlights
residential development. F.F. Nos. 12, 14. Additionally, the Hempt Tract has no
unique physical characteristics that would prevent Applicant from using it for a
permitted use in the R-1 district. F.F. No. 17; Concl. of Law No. 26. Thus, the
present case is more akin to Penn Street and Atherton than Realen.
9
In a thoughtful dissenting opinion, Justice (now Chief Justice) Saylor opined that the
zoning board’s supported findings warranted rejection of the reverse spot zoning challenge.
30
We also reject Applicant’s reliance on Baker. There, the local
governing body amended the zoning ordinance resulting in the rezoning of a 221-
acre farm from agricultural to industrial. The rezoned land was adjacent to an
existing landfill, and the rezoning occurred at the request of the landfill’s owner.
An objector challenged the validity of the rezoning, and the zoning board rejected
the challenge. On appeal, however, the common pleas court reversed. It
determined the zoning board erred in concluding the parcel was not spot zoned,
based on several factors, including: (1) the local governing body’s failure to
provide a full and fair examination of the impact the rezoning would have on
adjacent properties; (2) the special relationship between the landfill owner and the
local governing body that led to an expedited deliberation process to the detriment
of the public interest; and, (3) the township’s knowing failure to comply with the
statutory mandate to submit the comprehensive plan to the planning commission
for comparison with the rezoning request.
On further appeal to this Court, the landfill operator asserted the
objector did not meet her burden of proving the rezoning constituted an illegal spot
zone. We disagreed. Preliminarily, we rejected the argument that the parcel’s
large size, by itself, precluded a determination that it was spot zoned. We also
determined that the fact that the parcel was not an “island” entirely surrounded by
inconsistently zoned properties was not dispositive as a “peninsula” surrounded on
all but one side by inconsistently zoned land could be considered spot zoned.
Of greater significance to our determination, we explained that one
factor that was indicative of spot zoning was that the township did not comply with
31
the MPC’s mandate regarding submission of a comprehensive plan to the planning
commission for comparison with a rezoning request. Failure to submit the
comprehensive plan to the planning commission to determine whether or not the
rezoning complied with the comprehensive plan indicated the deliberation process
was expedited to the detriment of the public interest. Although the common pleas
court refrained from labeling the rezoning “contract zoning,” we stated the
procedural irregularities revealed the zoning board did not make a full and fair
examination of the impact of the rezoning in its attempt to accommodate the
landfill operator. Thus, we held the zoning board erred in determining the
rezoning of the farm did not constitute spot zoning.
Here, Applicant argues, to the extent the ZHB relied on Atherton for
the proposition that when a parcel is bounded on one side by land subject to the
same zoning classification, a spot zoning claim must fail, such an interpretation
conflicts with Baker, which held that a parcel that is a “peninsula” (surrounded on
all but one side by inconsistently zoned land), can be considered spot zoned. This
argument lacks merit for two reasons.
First, in Atherton, we acknowledged the common pleas court’s
observation that, while our case law reveals that a peninsula may constitute spot
zoning in the appropriate case, see Knight; C.L. Assocs., the law was silent as to
whether a peninsula could form the basis for a reverse spot zoning claim. We
agreed with this observation, adding: “While there is no obvious policy reason why
spot zoning jurisprudence should not fully apply to reverse spot zoning cases, we
acknowledge that up to this point there has been no successful claim of reverse
32
spot zoning in a ‘peninsula’ fact situation.” Atherton, 29 A.3d at 1209. Thus,
there is no conflict between Atherton and Baker, and a careful review of the ZHB’s
decision reveals it did not interpret Atherton in a manner that conflicts with Baker.
More importantly, as discussed above, the Hempt Tract is not a peninsula that
adjoins similarly zoned land on only one side; rather, the ZHB’s supported findings
reveal the properties to both the north and west of the Hempt Tract are zoned R-1
Residential.
B. Validity Variance
1. Contentions
Alternatively, Applicant contends it also sought a validity variance in
order to avoid an unconstitutional confiscation of its land. It asserts a municipality
may utilize zoning only if it is substantially related to protection of public health,
safety, or welfare; neither zeal nor worthwhile objectives justify impinging on the
rights of private property owners. Applicant argues a validity variance is a method
of avoiding a needless confiscation of property. It further maintains the zoning
ordinance here violates these constitutional precepts as applied to Applicant’s
parcels, the Hempt Tract and the adjoining quarry. Applicant contends the ZHB
erred in denying Applicant’s validity variance request.
To that end, Applicant maintains the zoning ordinance confiscates its
land by needlessly placing next to a Q Quarry district, a R-1 district, which
deprives Applicant of the ability to use a significant part of the existing quarry for
its permitted use. Specifically, Applicant argues, if the requested variance is
denied, Applicant will be either unable to use 300-feet of the existing quarry (the
required setback for a quarry from a residential development), or it will be unable
33
to use the Hempt Tract for many years while it mines the quarry. If a variance
allowing quarrying on the Hempt Tract is granted, all of the existing quarry can be
mined, a substantial part of the Hempt Tract can be mined, and the 300-foot
setback can be provided. Applicant asserts that, if the variance is granted, the
public health, safety and general welfare will be protected, and it will be allowed
the economically viable use of both the Hempt Tract and the existing quarry. An
unnecessary confiscation of private property can be avoided through the grant of
the validity variance.
Applicant asserts that a validity variance may be granted where an
applicant establishes: (1) the effect of the regulations complained of is unique to
the applicant’s property and not merely a difficulty common to other lands in the
neighborhood; and (2) the regulation is confiscatory in that it deprives the owner of
the use of the property. Hersh v. Zoning Hearing Bd. of Marlborough Twp., 493
A.2d 807 (Pa. Cmwlth. 1985); E. Torresdale Civic Ass’n v. Zoning Bd. of
Adjustment, 481 A.2d 976 (Pa. Cmwlth. 1984), aff’d, 499 A.2d 1064 (Pa. 1985).
Applicant contends it satisfied these two criteria.
In particular, Applicant first argues the zoning ordinance denies it the
economically viable use of its land and, therefore, works a confiscation. While the
Hempt Tract can be used for residential purposes, the R-1 zoning of the Hempt
Tract needlessly prevents Applicant’s permitted use of a substantial part of its
adjoining property in the Q Quarry district. By legislating that the permitted use of
the Hempt Tract is residential, Applicant argues, the Township needlessly placed
an inconsistent use next to a Q Quarry district, which, as a matter of law, prevents
34
Applicant from the permitted use of a substantial part of its land in the Quarry
district. Applicant points out that state regulations require a 300-foot setback from
the nearest occupied dwelling, school, park, or institutional building not owned by
the quarry operator. 25 Pa. Code §§77.126(A)(4)(ii), 77.504(A)(2), 77.564(G)(4).
Applicant maintains there is no economically viable use of its land in
the Q Quarry district for anything other than extraction of dolomite. The
Township legislated that the Hempt Tract is to be used for residences. Under the
Township’s zoning scheme, if the Hempt Tract is put to its only viable permitted
use (residential), a substantial part of Applicant’s existing quarry cannot be used
for its permitted use (extraction of dolomite). Alternatively, if Applicant uses the
existing quarry for its permitted use, it cannot use the Hempt Tract for residences.
Applicant contends it owns both tracts, and it has a right as the owner to make
economically viable use of each. To deprive it of the ability to use a significant
portion of one of its tracts because of the permitted use of an adjoining tract that it
owns is a confiscation. The zoning scheme currently in place needlessly forces
Applicant to choose which of its properties it will use.
Applicant acknowledges that a party seeking a validity variance must
comply with the traditional variance requirements of Section 910.2(a) of the MPC.
Laurel Point Assocs. However, it asserts, not all of these requirements must be
met, only those that are “relevant.” Id. at 801, n.9. Importantly “unnecessary
hardship” is established by proof of needless confiscation. Id. at 801. Here,
Applicant contends, it did not create the hardship; rather, the zoning ordinance
creates the confiscation.
35
The Township counters that a validity variance is based on the theory
that an otherwise valid ordinance is confiscatory when applied to a particular
parcel, in that it deprives the owner of any reasonable use of his property. Laurel
Point Assocs. To establish the confiscatory nature of the zoning regulation, an
applicant must prove the land has no value or only distressed value. To meet this
burden the applicant must show: (1) the physical features of the property are such
that it cannot be used for a permitted purpose; or (2) that the property can be
conformed for a permitted use only at a prohibitive expense; or, (3) that the
property has no value for any purpose permitted by the zoning ordinance. Id.
The Township argues, in order to obtain a validity variance, the
applicant must establish: (1) the effect of the regulations complained of is unique
to the applicant’s property and not merely a difficulty common to other lands in the
neighborhood; and, (2) the regulation is confiscatory in that it deprives the owner
of the use of the property. Id. Additionally, the applicant must also comply with
the variance criteria in Section 910.2 of the MPC.
The Township maintains Applicant did not present credible evidence
to prove, by any of the above means, that the zoning ordinance is confiscatory as to
the Hempt Tract. In contrast, the Township proved the zoning ordinance is not
confiscatory. The Township showed there are no physical features of the Hempt
Tract that would prevent it from being used as a 57-lot, single-family residential
development, which is a permitted use. R.R. at 323a-29a, 409a, 410a.
36
In addition, the Township argues it showed it would not be
prohibitively expensive to develop the Hempt Tract as a residential development,
the costs of which would be typical of a development of its type and size. R.R. at
330a. The Township asserts it showed that the Hempt Tract has value as zoned in
that the lots in such a development could reasonably sell for $80,000 to $90,000
per lot. R.R. at 342a, 343a, 413a-18a. The Township also contends that it showed
the price Applicant paid for the Hempt Tract was more than two to over seven
times the “per acre” price paid for comparable, large, residentially zoned parcels.
R.R. at 339a-343a, 419a, 420a.
The Township notes that, in its brief, Applicant does not contest that
the Hempt Tract can be developed as a residential development in accordance with
its R-1 regulations, but rather it contends doing so would preclude it from
continuing to quarry within the required setback. See Section 223.8 of the zoning
ordinance (requiring a minimum setback of 200 feet for mining from any property
line of properties not owned or controlled by the operator of the principal use).
The Township argues that, prior to Applicant’s purchase of the Hempt
Tract in 2007, the mining operation of the existing quarry was set back 200 feet
from the property line that separates the Hempt Tract from the existing quarry.
After the purchase of the Hempt Tract, Applicant, under Section 223.8 of the
zoning ordinance, was no longer required to maintain the 200-foot setback because
Applicant, the operator of the existing quarry, also owned the Hempt Tract.
Applicant was then able to mine within the 200-foot setback up to 25 feet from the
property line. R.R. at 97a. In the event the Hempt Tract is sold for residential
37
development, Applicant would be required to reinstate the 200 foot mining setback
and stop mining within the setback. Id. The Township points out that Applicant
argues that, as a result, the existing quarry property within the 200 foot setback
would be “confiscated,” and it is entitled to a validity variance. The Township
maintains this argument fails for several reasons.
First, Applicant applied for a validity variance for the Hempt tract, not
the existing quarry. The fact that the Hempt Tract is zoned R-1 and can be
developed in accordance with R-1 regulations does not result in the confiscation of
any part of the Hempt Tract. Second, the test for a validity variance requires that
Applicant prove the Hempt Tract has no value or only distressed value to establish
a confiscation. To meet this burden, Applicant had to show: (1) the physical
features of the Hempt Tract are such that it cannot be used for a permitted purpose;
or (2) the Hempt Tract can be conformed for a permitted use only at a prohibitive
expense; or (3) the Hempt Tract has no value for any purpose permitted by the
zoning ordinance. Having a potentially adverse impact on an adjacent property
owned by the same entity is not grounds for a validity variance on the Hempt
Tract. The Township asserts Applicant did not prove or even offer any evidence to
meet the required burden for a validity variance.
Lastly, the Township argues, Applicant mined within the 200-foot
setback of the existing quarry since it purchased the Hempt Tract and may continue
to do so until it sells the Hempt Tract or depletes the minerals. If it had not
purchased the Hempt Tract, it would have never been able to mine within the
existing setback. Thus, the Township asserts Applicant used the Hempt Tract to
38
further its quarry use despite the fact that no quarrying takes place on the Hempt
Tract. Applicant chose to mine in the 200-foot setback despite the fact that the
Hempt Tract is zoned R-1, and if it were ever developed residentially and the lots
sold, Applicant would be required to stop mining in the setback. The Township
contends Applicant either knew or should have known at the time it began mining
in the setback that at some point it would have to choose between continuing to
mine in the setback or developing the Hempt Tract. By mining in the setback,
Applicant created its own hardship and an artificial confiscation.
In its reply brief, Applicant maintains it seeks a validity variance on
one of its tracts (the Hempt Tract) to avoid needless confiscation of land on
another of its tracts (the existing quarry). Because the Township created an
inconsistent use zone (residential) adjacent to a quarry zone, a significant part (300
feet) of the quarry is rendered unusable for the otherwise permitted quarrying use.
The zoning ordinance allows quarrying as the permitted use in the Quarry district,
but because of the residential zoning of the Hempt Tract, Applicant cannot extract
dolomite from a large part of its existing quarry unless it does not use the Hempt
Tract for decades. This fact is undisputed.
Applicant further notes that, in its brief, the Township contends the
Hempt Tract can be used for residences. However, it maintains, this position
ignores the fact that doing so needlessly deprives Applicant of its ability to mine a
large part of its land in the Q Quarry district as permitted by the zoning ordinance.
39
Applicant contends the Township also argues Applicant did not
request a variance for the existing quarry. Applicant responds that, because
quarrying is a permitted use in the zoning district in which the existing quarry lies,
no variance is needed for the existing quarry.
Applicant further argues that, although the Township contends
Applicant created its own hardship, Applicant did not create the confiscation of its
land by needlessly placing inconsistent zones contiguously and by failing to
provide relief from the resulting confiscation. Rather, by purchasing the Hempt
Tract, Applicant enabled the grant of a validity variance to avoid loss of use of its
land without harm to the community.
2. Analysis
A validity variance is granted when a zoning regulation is restrictive
to the point of confiscation, and the variance is necessary to permit a reasonable
use of the land. Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of Adams Twp.,
958 A.2d 602 (Pa. Cmwlth. 2008). The applicant can establish the confiscatory
nature of the zoning regulation by proving the land has no value or only distressed
value because of the regulation. Id.
A validity variance “differs from the ‘normal variance’ in that the
‘normal variance’ is granted to adjust the zoning regulation to the particular
property; a validity variance holds that the zoning regulation is restrictive to the
point of confiscation and requires the issuance of a variance permitting a
reasonable use of the land.” Hunt v. Zoning Hearing Bd. of Conewago Twp., 61
A.3d 380, 383-84 (Pa. Cmwlth. 2013) (quoting Hersh, 493 A.2d at 811)); see also
40
Nowicki v. Zoning Hearing Board of Monaca, 91 A.3d 287 (Pa. Cmwlth. 2014).
When a validity variance is warranted, its issuance prevents an unconstitutional
taking. Hunt; Laurel Point Assocs. In other words, a validity variance request is
asserted in circumstances that essentially merit a zoning amendment. Id.
An applicant for a validity variance must satisfy numerous criteria.
Hunt. Where applicable, an applicant must establish that: “(1) the effect of the
regulations complained of is unique to the applicant’s property and not merely a
difficulty common to other land in the neighborhood; and (2) the regulation is
confiscatory in that it deprives the owner of the use of the property.” Id. at 384
(quoting Laurel Point Assocs., 887 A.2d at 801)).
An applicant for a validity variance also must comply with the
requirements for a variance found in Section 910.2 of the MPC. Id. However, an
applicant need not meet each and every element necessary for the grant of a
traditional variance in order to establish grounds for a validity variance. Id. To
that end, Section 910.2(a) of the MPC requires a ZHB to make findings regarding
the variance criteria “where relevant,” meaning that “not all criteria must be
satisfied in every case and that the quantum of proof necessary to establish a
particular criterion may vary depending on the type of variance sought.” Id.
(quoting Laurel Point Assocs., 887 A.2d at 801 n.9).
Finally, in order to show a property has no value or only a distressed
value as a result of the regulation, an applicant for a validity variance must
establish: “(1) the physical features of the property are such that it cannot be used
41
for a permitted purpose; or (2) that the property can be conformed for a permitted
use only at a prohibitive expense; or (3) that the property has no value for any
purpose permitted by the zoning ordinance.” Id. at 385 (quoting Laurel Point
Assocs., 887 A.2d at 802). In a validity variance case, the key is the actuality of
confiscation. Laurel Point Assocs.
Here, after setting forth the applicable principles governing validity
variances and a discussion of this Court’s decision in Laurel Point Associates, the
ZHB explained:
Applicant failed to provide credible evidence to
prove, by any of the aforementioned means, that the
[z]oning [o]rdinance is confiscatory with regard in the
[Hempt Tract]. In contrast, the evidence established and
the [ZHB] finds that the [z]oning [o]rdinance is not
confiscatory. The [ZHB] finds that there are no physical
features of the [Hempt Tract] that would prevent it from
being used as a 57 lot single family residential
development, which is a permitted use on the [Hempt
Tract]. (N.T. pp. 339-345; Township Exhibits 25 and 26).
In addition the [ZHB] finds that it would not be
prohibitively expensive to develop the [Hempt Tract] into
such a development, the costs of which would be typical
of a development of its type and size. (N.T. p.346).
Lastly, the [ZHB] finds that the [Hempt Tract] has value
as zoned in that the lots in such a development could
reasonably sell for $80,000.00 to $90,000.00 per lot.
(N.T. pp. 359-360; Township Exhibit 28, pp. 1-6). In
addition the uncontradicted evidence finds that the price
[Applicant] paid for the [Hempt Tract] was more than
two (2) to over seven (7) times the per acre price paid for
comparable, large, residentially zoned parcels. (N.T. pp.
355-359; Township Exhibit 28, pp. 7-8). …
ZHB Op. at 16.
42
Upon review, we discern no error in the denial of Applicant’s validity
variance request in light of the ZHB’s supported findings that: (1) the Hempt Tract
has no unique physical features that prevent it from being developed for a 57-lot
residential development, a permitted use in the R-1 district, R.R. at 323a-330a,
409a-410a; (2) it would not be prohibitively expensive to develop the Hempt Tract
for this permitted use, R.R. at 329a-330a; and, (3) when divided into lots for
single-family homes in a 57-lot residential development, such lots could
reasonably sell for $80,000 to $90,000 per lot, R.R. at 345a. See Laurel Point
Assocs. (rejecting developer’s validity variance request seeking to use residentially
zoned property for commercial office buildings where zoning board’s supported
findings revealed developer could use property for permitted residential
development); Hersh (rejecting applicant’s request for a validity variance to use
residentially zoned property for mining and quarrying where zoning board found
that residential use of property was possible).
Further, that it may be more profitable for Applicant to use the Hempt
Tract for quarrying does not entitle Applicant to a validity variance. Laurel Point
Assocs. A landowner is not entitled to a validity variance simply because an
ordinance deprives it of the most lucrative and profitable uses. Id. Thus, in
Hoffman Mining, we explained, in a validity variance case, “an owner who was
claiming that the zoning deprived him of the use of the property had to show not
only that the coal could not be mined, but that the property could not be reasonably
used for any other purpose.” Id. at 612 (citing Machipongo Land & Coal Co., Inc.
v. Commonwealth, 799 A.2d 751 (Pa. 2002)).
43
In its brief, Applicant does not dispute that it can develop the Hempt
Tract for a residential development in accordance with the R-1 district regulations,
as found by the ZHB. Instead, it advances the rather convoluted argument that
development of the Hempt Tract for residential use will result in an inability to
mine a significant portion of its existing quarry on the adjacent tract, as a result of
state regulations that require a 300-foot setback from residential dwellings for
mining activities.10 This argument fails.
Applicant sought a validity variance for the Hempt Tract, not the
existing quarry. The ZHB’s supported findings reveal the Hempt Tract is zoned
for residential use and can be developed consistent with the R-1 regulations. These
findings make clear that those regulations are not confiscatory when applied to the
Hempt Tract. Applicant cites no authority for the proposition that an alleged
economic detriment to an adjacent property could justify grant of a validity
variance. In any event, the type of economic loss claimed by Applicant with
regard to its existing quarry property is not tantamount to confiscation as is
required to obtain a validity variance. Laurel Point Assocs.
In addition, the ZHB and the trial court alluded to the fact that any
hardship Applicant would suffer as a result of the denial of the requested validity
variance was self-inflicted. As to self-inflicted hardship, in Nowicki, this Court
recently explained:
10
For mining activities, the zoning ordinance requires a setback of 200 feet from any
property line of properties which are not owned, controlled or leased by the operator of the
principal use. Section 223.8 of the zoning ordinance.
44
In Wilson [v. Plumstead Township Zoning Hearing
Board, 936 A.2d 1061 (Pa. 2007)], our Supreme Court
addressed the question of whether an applicant has
created a self-inflicted hardship, in which case a variance
request should be denied. [936 A.2d at 1070]. The Court
held that it is not enough that an applicant knew or
should have known how the property was zoned to
demonstrate that a hardship was self-inflicted; such a
holding, the Court concluded, would mean that only the
owner of the property at the time the alleged hardship
was created could seek a variance and that the variance
could be denied simply because of the use an applicant
sought. Id.; Manayunk Neighborhood Council v. Zoning
Board of Adjustment of City of Philadelphia, 815 A.2d
652, 657 (Pa. Cmwlth. 2002) (pre-purchase knowledge of
zoning restrictions, without more, does not create a self-
inflicted hardship; where hardship arises from the
intensity of the restriction, the right to relief runs with the
land). Instead, the Court reiterated that a hardship is self-
inflicted where an applicant purchased the subject
property for too high a price. [Wilson, 936 A.2d at 1070];
Manayunk Neighborhood Council, 815 A.2d at 657 (to
be self-inflicted, a hardship must arise from the purchase
itself, as in instances where the price paid was too dear).
Id. at 296 (footnote omitted) (emphasis added).
Here, the record reveals Applicant knew of the Hempt Tract’s R-1
zoning when it purchased it, R.R. at 100a, and the uncontradicted evidence showed
Applicant paid an excessive price for the Hempt Tract. F.F. No. 60, ZHB Op. at
16; R.R. at 339a-43a. Based on these determinations, the ZHB could properly
conclude any hardship was self-inflicted. Nowicki. For these reasons, no error is
apparent in the ZHB’s denial of the requested validity variance.
45
Based on the foregoing, we affirm.
ROBERT SIMPSON, Judge
46
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsy Supply, Inc., :
Appellant :
:
v. : No. 334 C.D. 2015
:
The Zoning Hearing Board :
of Silver Spring Township :
:
v. :
:
Township of Silver Spring :
ORDER
AND NOW, this 15th day of October, 2015, the order of the Court of
Common Pleas of Cumberland County is AFFIRMED.
ROBERT SIMPSON, Judge | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1725894/ | 275 N.W.2d 347 (1979)
Larry G. FLUHARTY, Plaintiff and Appellant,
v.
MIDLAND NATIONAL LIFE INSURANCE COMPANY, Defendant and Respondent.
No. 12371.
Supreme Court of South Dakota.
Argued November 15, 1978.
Decided February 15, 1979.
Charles Rick Johnson of Johnson, Johnson & Eklund, Gregory, Ronald C. Aho, Brookings, for plaintiff and appellant.
Alan L. Austin of Austin, Hinderaker & Hackett, Watertown, for defendant and respondent.
ANDERST, Circuit Judge.
This is an appeal from the trial court's granting and entering a judgment notwithstanding the verdict for $27,936.00, the full amount of respondent's claim, after the jury had returned a verdict in the amount of $13,918.00. We affirm with directions.
*348 Appellant, Larry G. Fluharty (Fluharty), met one M. Ted Steinberg (Steinberg), a general agent for Midland National Life Insurance Company (Midland), in 1971 when Steinberg prepared a family estate plan for him. Thereafter in August, 1971, Fluharty went to work for the Steinberg Agency as an agent for Midland. Later in September, 1972, Midland, with Steinberg's consent, made Fluharty a district agent, which increased Fluharty's commissions over those he received as an agent. During this period of time, both Steinberg and Fluharty received cash loans from Midland in the form of checks at regular intervals. The checks bore an endorsement expressly stating that the amount of the check was a loan subject to repayment on demand. The amount of these loans was based on past production and future anticipated commissions with which Midland credited their accounts as they were earned. Also charged against their accounts were social security payments, group insurance premiums, and medical examination fees of persons not purchasing insurance, that were paid by Midland.
At the suggestion of Midland, it was determined that it would be in the best interests of all parties if the Steinberg Agency was reorganized to make Fluharty a principal. This was accomplished in February, 1973, when Steinberg and Fluharty formed Agri Estates, Inc., a de facto corporation. To effectuate this reorganization, the parties executed documents wherein Agri Estates, Inc. became a general agent; Steinberg and Fluharty became district agents; Steinberg and Fluharty assigned all past and future commissions to Agri Estates, Inc.; Agri Estates, Inc. assumed all the obligations and debts of Steinberg as general agent and Fluharty as agent; and Steinberg and Fluharty individually assumed personal liability for all the debts and obligations of any nature whatsoever of Agri Estates, Inc. Midland continued to make loans in the form of checks at regular intervals to Steinberg and Fluharty.
Agri Estates, Inc.'s production began to fall, and Fluharty received his last loan check November 27, 1973, with Steinberg receiving his last loan check March 26, 1974. Midland, by letter of November 13, 1974, advised Agri Estates, Inc., with copies to Steinberg and Fluharty, that its total indebtedness amounted to over $40,000. By letter dated January 24, 1975, Midland demanded payment of the then balance due of $39,901.85.
Steinberg and Fluharty, individually and d/b/a Agri Estates, Inc., initiated an action against Midland on July 25, 1975. The same date Midland commenced a three-count action against Steinberg and Fluharty: Count I against Steinberg individually; Count II against Fluharty individually; and Count III against Steinberg and Fluharty jointly. Upon motion, the court consolidated the actions, treating the complaint by Midland as a counterclaim in the action brought by Steinberg and Fluharty. In April, 1976, Steinberg and Fluharty retained different counsel. The matter was scheduled for trial on September 3, 1976. Neither Steinberg nor Fluharty or their counsel appeared on the date of trial. After attempts to reach counsel by telephone were unsuccessful, the court proceeded to hear the matter and entered a default judgment in favor of Midland and against Steinberg, Fluharty and Agri Estates, Inc. Notice of entry of judgment was served on counsel, and Midland proceeded to execute thereon.
Fluharty retained different counsel, who with Steinberg's attorney prevailed upon the court to re-open the matter for trial to a jury upon the merits. Present counsel was retained by Fluharty in July, 1977, and jury trial on the merits was scheduled for September 15, 1977.
The day trial was to commence, counsel for Steinberg moved for a continuance on the ground that Steinberg was afraid of Fluharty and feared for his life. This motion, opposed by both Fluharty and Midland, was denied by the court. Counsel for Steinberg then left the courthouse and there was no further participation by him or Steinberg in the proceedings.
*349 Counsel for Fluharty then moved to amend his pleadings, the effect of which dismissed any claim Fluharty may have had against Midland and denied Midland's claim against him. Midland then proceeded to prove up its designated counterclaim. Introduced into evidence were all the loan checks Midland had made to Steinberg and Fluharty. For accounting purposes, Midland kept a separate account for Fluharty, Steinberg and Agri Estates, Inc. Computer printouts showing the loan checks and other charges made by Midland to each separate account together with credits received for commissions earned were introduced into evidence. Just prior to trial, Midland moved its main office from Watertown to Sioux Falls. The printouts for the years 1971 and 1972 were misplaced. However, copies had been furnished to Steinberg's and Fluharty's original counsel by Midland. Evidence presented by Midland showed a total balance due and owing to it for the three accounts in the amount of $27,836. Midland's evidence further showed that copies of these printouts had been sent at regular intervals to Agri Estates, Inc.'s business address. At the close of all evidence, counsel for Midland moved the court to direct a verdict in its favor, which was denied. The jury returned a general verdict in favor of Midland against Steinberg and Fluharty individually and doing business as Agri Estates, Inc. in the sum of $13,918.
Upon motion of counsel for Midland, the court then entered a judgment notwithstanding the verdict in the sum of $27,836 against Steinberg and Fluharty individually and Steinberg and Fluharty d/b/a Agri Estates, Inc. The appeal is only from that part of the judgment against Fluharty individually.
A motion for judgment notwithstanding the verdict is retroactive in effect and relates back to and is based upon the previous motion for directed verdict. Barnhart v. Ahlers, 79 S.D. 186, 110 N.W.2d 125 (1961). On appeal, correct rules of law must be applied rather than the law set forth in the instructions to the jury. Frager v. Tomlinson, 74 S.D. 607, 57 N.W.2d 618 (1953). The standard in reviewing a judgment n. o. v. is that the appellate court views the evidence in a light most favorable to the party against whom the motion was directed, and without weighing the evidence, decides if there is evidence which would have supported or did support a verdict in his favor. Corey v. Kocer, 86 S.D. 221, 193 N.W.2d 589 (1972).
Appellant's main contention is that the checks sent to him and Steinberg were advances and not loans. The general rule is set out in 3 Am.Jur.2d, Agency, § 218, wherein it is stated:
Whether or not money given by a principal is given as an advance and is to be repaid by the agent in the event that his commission or other compensation does not amount to the sum advanced is dependent upon the interpretation of the contract between them. Generally, where the contract of employment provides for a drawing account or advances to the agent against future commissions, the employer cannot, in the absence of either an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover from the employee such excess. If, however, the contract contains in terms a promise by the agent to repay the sums advanced, the principal may recover the excess of the advances over the commissions . . ..
Appellant admitted he endorsed the checks he received with the printed endorsement stating the check constituted a loan subject to repayment on demand. He also admitted he executed all the documents creating Agri Estates, Inc. Further, he admitted executing the documents between himself individually and Midland, as well as in behalf of Agri Estates, Inc. and Midland. The trial court was correct in ruling, in view of this evidence, that the checks paid to Steinberg and Fluharty were loans and not advances. The trial court was also correct in its ruling that Steinberg and Fluharty had agreed that Midland could charge them for group insurance, *350 medical examinations of persons not purchasing insurance, and social security. Thus the trial was in effect an accounting.
Appellant did not dispute that he or Steinberg had received the loan checks. Neither did he present any evidence that Midland did not give them full credit for commissions earned. Appellant's premise was that Midland's failure to produce the computer printouts for 1971 and 1972 rendered its accounting suspect. As we stated in Jerke v. Delmont State Bank, 54 S.D. 446, 467, 223 N.W. 585, 594 (1929):
[T]he rule of reasonable judgment must be applied to each case upon its particular facts, and, if the testimony in behalf of the party having the burden of proof is clear and full, not extraordinary or incredible in the light of general experience, and not contradicted, either directly or indirectly, by other witnesses or by circumstances disclosed, and is so plain and complete that disbelief therein could not arise by rational processes applied to the evidence, but would be whimsical or arbitrary, then, and in such case, it is not only permissible, but highly proper, to direct a verdict. . ..
No evidence, documentary or otherwise, was introduced challenging the accuracy of the figures presented by Midland. Reasonable minds could not have differed over the amount owed Midland, for there was no basis upon which the jury could rationally have arrived at a verdict in an amount other than established by Midland's evidence.
When the facts and circumstances have warranted it in a particular case, this court has never hesitated to approve the direction of a verdict for a party having the burden of proof. We conclude that the trial court was correct in entering judgment notwithstanding the verdict.
It was brought to the attention of the court at oral argument that the clerk of courts had made an error in computation of the total judgment when taxing costs. Written consent to correct the error was made by Midland. We affirm the trial court in granting the judgment n. o. v., but remand with directions that the trial court correct the error in the total judgment by inserting the correct amount of $32,690.87 for the amount now appearing.
WOLLMAN, C. J., and MORGAN, J., concur.
HENDERSON, J., concurs specially.
FOSHEIM, J., deeming himself disqualified, did not participate in this opinion.
ANDERST, Circuit Judge, sitting for DUNN, J., disqualified.
HENDERSON, Justice (concurring specially).
I wish to specially concur but with some elaboration.
This entire case hinges on whether Fluharty's incoming checks from Midland were "loans" or "advances".
The checks bore endorsements of Fluharty that they were "loans" subject to repayment on demand.
The endorsements on the checks were as follows: "This endorsement constitutes my acknowledgement of receipt of the amount of this check from Midland National Life Insurance Company of Watertown, South Dakota, as a loan, subject to repayment on demand, said amount to be charged to my account as an acknowledged indebtedness to the Company."
These endorsements impaled Fluharty on the altar of debt.
The verdict of the jury in this case was exactly one-half, to the penny, of the amount sued for by Midland on its counterclaim. The amount sued for was $27,836. The verdict returned was for $13,918. This was obviously a compromise verdict.
It is always a mystery as to how a jury arrives at a verdict. However, it appears to me that this compromise verdict was arbitrarily rendered. My assumption is based on the record. It is a rare bird in a jury trial when a defendant and his lawyer are not in the courtroom during the course of the trial. The defendant, Steinberg, and *351 his lawyer never appeared in the courtroom. Fluharty and Steinberg were both sued. They were sued as follows: "M. Ted Steinberg, Larry G. Fluharty, individually, and M. Ted Steinberg and Larry G. Fluharty, d/b/a Agri Estates, Inc.". The jury was submitted two verdict forms, one stated VERDICT FOR PLAINTIFF and the other stated VERDICT FOR DEFENDANT. The foreman signed the VERDICT FOR DEFENDANT, which stated as follows: "We the Jury duly empanelled in the above-entitled action and sworn to try the issues find for the defendant and assess defendant's damages at the sum of $13,918." I am of the opinion that the jury awarded one-half of the damages upon the basis that Fluharty should only pay one-half and no more. This verdict was not supported by the evidence or instructions. The nonpresence of Steinberg, in my opinion, confused the jury. However, I hasten to point out in court instructions 9 and 11 the trial judge made it apparent to the jury that Steinberg and Fluharty were being sued as parties to the action both individually and doing business as Agri Estates, Inc.
After the loan checks had been proven up in this case establishing Steinberg's and Fluharty's joint and several liability, Fluharty had the burden of proving any offsets or payments and no evidence of any substance was offered on Fluharty's part to raise any issues with respect to these loan checks, or to controvert the evidence of Midland that the balance due was $27,836. Accordingly, I would hold that the lower court was right in granting the Judgment Notwithstanding the Verdict.
For an interesting and recent case on this subject, which I cite with approval, see United American Life Insurance Company v. Urman, Colorado, 495 P.2d 1158 (1972), which generally holds that an agent is personally bound to repay loans without regard to commissions or advances, depending upon the contract in existence between the agent and insurance company.
A good example of a situation where a directed verdict is called for or Judgment Notwithstanding the Verdict should be entered, is found in National Bank of Commerce v. Bottolfson, 55 S.D. 196, 225 N.W. 385, 69 A.L.R. 892 (1929). In that particular case, there was no affirmative testimony as to the amount unpaid on a note and there was no showing otherwise. In this particular case, Fluharty did not plead, nor prove, payment. The jury accepted the accounting of Midland to the penny, for the verdict was exactly one-half of what the accounting showed.
Fluharty by assignment of error and by way of brief, urges that the lower court's ruling was nothing more than an unconstitutional substitution of its opinion for the jury's opinion about a fact question. He cites Article VI, Section 6, of the South Dakota State Constitution and the Seventh Amendment to the United States Constitution.
This argument begs the issue of whether or not a court can make determinations of law during the course of the trial that takes away the ultimate determination of the jury and particularly where a jury has rendered a verdict.
Our state statute on motions for Judgment Notwithstanding the Verdict is found at SDCL 15-6-50(b). It is identical to 50(b) of the Federal Rules of Civil Procedure. Technically, Rule 50(b) allows a party to renew his motion for a directed verdict. Federal Rule 50 was amended in 1963 so that the caption of the rule now speaks of "Judgment Notwithstanding the Verdict". Prior to 1963, the federal rules had not used that term.
The constitutionality of Federal Rule 50 is thoroughly settled. Thus, the decisions with respect thereto are applicable to our rule, SDCL 15-6-50(b). According to the rules of common law, the right to a jury trial was preserved by the Seventh Amendment to the Constitution. The common law has the well-established principle that although questions of fact must be decided by the jury and may not be reexamined by the court, the question as to whether or not there is sufficient evidence to raise a question of fact to be presented to the jury is a question of law to be decided by the court. *352 Taylor v. Interior Enterprises, Inc., Alaska, 471 P.2d 405, 407 (1970).
As early as 1850 our United States Supreme Court approved the grant of a directed verdict, Parks v. Ross, 52 U.S. 362, 13 L. Ed. 730 (1850). Although there was considerable controversy about the propriety and practice of granting a directed verdict, it appears that this was resolved in 1943 in the case of Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943). The waters have not been so smooth with respect to Judgments Notwithstanding the Verdict throughout contemporary judicial times. In the case of Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S. Ct. 523, 57 L. Ed. 879 (1913), our United States Supreme Court held that the entry of judgment contrary to the verdict was a violation of the Seventh Amendment. However, this was largely qualified in 1935 in the case of Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S. Ct. 890, 79 L. Ed. 1636 (1935). In the latter case, the trial judge had expressly reserved his decision on motions for directed verdict and had submitted the case to the jury subject to the reservations. However, in the Slocum case, the judge had unconditionally submitted the case to the jury. This was the distinguishing factor. It is to be noted that in the instant case before us that a motion for a directed verdict had been made, the reasons set forth in particularity and that the judge submitted the case to the jury with the motion for directed verdict by Midland. Under Federal Rule 50(b) and our state statute, SDCL 15-6-50(b), the rule now provides:
Whenever a motion for a directed verdict 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. (Emphasis added.)
The United States Supreme Court has approved this practice under Rule 50(b). Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 87 S. Ct. 1072, 18 L. Ed. 2d 75 (1967); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147 (1940).
The power of the court to withdraw cases from the jury in a case such as this appears to be firmly rooted in history and tradition.
Therefore, I must conclude that the trial court's decision to grant a Judgment Notwithstanding the Verdict did not violate Fluharty's constitutional right to a jury trial as set forth in Article VI, Section 6, of the South Dakota State Constitution and the Seventh Amendment to the United States Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264668/ | 744 A.2d 791 (2000)
The BANCORP GROUP, INC., Appellee,
v.
PIRGOS, INC. d/b/a Cascade Diner a/k/a Cascade Family Restaurant and John G. Rigopoulos, jointly and severally, Appellants.
Superior Court of Pennsylvania.
Argued September 29, 1999.
Filed January 6, 2000.
*792 David L. Peratzian, Philadelphia, for appellants.
Daniel K. McCarthy, Allentown, for appellee.
Before POPOVICH, JOYCE and TAMILIA, JJ.
POPOVICH, J.:
¶ 1 This case involves an appeal from the order denying the defendants' petition to open a foreign default judgment on the basis: 1) the out-of-state court lacked jurisdiction; and 2) the judgment was obtained by fraud. We affirm.
¶ 2 We begin our analysis with the observation that a court must have personal jurisdiction over a party to enter a judgment against it. "[A]ction taken by a court without jurisdiction is a nullity." Dubrey v. Izaguirre, 454 Pa.Super. 504, 685 A.2d 1391, 1393 (1996). Moreover, this Court has held that a judgment may be attacked for lack of jurisdiction at any time, id.; or if the judgment had been obtained by fraud, duress or mutual mistake. Mac's Car City, Inc. v. DiLoreto, 238 Conn. 172, 679 A.2d 340, 345-46 n. 9 (1996). Lastly, the full faith and credit clause does not require recognition for a judgment of a sister state rendered without jurisdiction. Art. IV, Sec. 1 of the United States Constitution; Gersenson v. Life and Health Ins. Guar., 729 A.2d 1191, 1195 (1999).
¶ 3 The record discloses that on the 1st of August, 1996, the plaintiff/Bancorp Group, Inc. filed a complaint in the 46th Judicial District of the State of Michigan against the defendants on the basis that a default had occurred under a lease-purchase agreement guaranteed personally by the co-defendant/Rigopoulos. Bancorp's place of business was in Michigan while the latter two resided in Lehigh County, Pennsylvania. The equipment was purchased through a local salesperson employed by "Silent Partners", a Georgia-based company, and the financing was provided by the plaintiff.
¶ 4 The plaintiff averred that the lease-purchase agreement was governed by the laws of Michigan in accordance with the terms of the contract, the defendants consented to the jurisdiction and venue of the *793 Michigan courts pursuant to Paragraph 16 of the lease agreement, and the defendants had engaged in "such conduct in and connection with Michigan as to reasonably anticipate and foresee being haled into a Michigan court for breach of the lease." See Plaintiff's Complaint, Paragraphs 6-9.
¶ 5 The agreement was executed on June 24, 1995, and required the defendants to pay $189 per month for 36 months to lease electronic monitoring equipment. Default occurred on June 18, 1996, which resulted in a notice of acceleration and demand for payment of $9,657.26. Judgment was obtained on August 13, 1996. A certified copy of the record was transferred to the Court of Common Pleas of Lehigh County on July 14, 1997, after which a stay of execution was granted and bond posted until the defendants filed a Petition to Strike on the grounds that the judgment was obtained by fraud and collusion, which rendered it violative of due process and not entitled to full faith and credit. After the submission of an answer and briefs by both sides, the court below denied the Petition to Strike.
¶ 6 On August 17, 1998, the defendants' Petition to Open Foreign Default Judgment[1] claimed possession of "substantial and extensive facts through sworn testimony, depositions, affidavits, documents and records to support" opening the default judgment. Paragraph 8. Further, the defendants averred that the judgment was obtained by fraud and rendered by a court (in Michigan) with no jurisdiction, each of which could be raised to void or attack the judgment at any time. Id. at 13 & 14.
¶ 7 More particularly, the defendants asserted that at no time did it interact with the plaintiff prior to, during or after the execution of the agreement. Rather, the defendants always dealt with the sales representative ("John") of the Georgia-based ("Silent Partners") company regarding the agreement. Even when the defendants had decided to sell their business, the defendants were advised by Silent Partners that there "would not be a problem despite the fact that the equipment was leased. John said he would `take care of it.'" Id. at 24.
¶ 8 Nevertheless, the defendants were never advised of the status of negotiations between the new owner and the plaintiff concerning the surveillance equipment. In fact, Silent Partners, at the plaintiff's direction, removed the equipment and returned it to Michigan. Before the defendants could respond to the plaintiff's offer to settle, a default judgment was entered in Michigan, and Pennsylvania counsel was hired to collect the debt filed in Lehigh County on July 14, 1997.
¶ 9 Based on the preceding, the defendants contended that fraud and collusion, as well as the lack of jurisdiction in the Michigan court, existed warranting opening the default judgment. The court below disagreed holding that the forum selection clause was valid and binding under Michigan law and must be enforced. This appeal followed and challenges the order refusing to open judgment on the basis that the forum state lacked jurisdiction to enter the default judgment.
¶ 10 It is beyond cavil that a "choice of law" provision is not conclusive in deciding the issue of personal jurisdiction in a multi-state dispute. For example, in the leading case of Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the Supreme Court examined the effects of just such a provision; to-wit:
... [C]hoice of law analysiswhich focuses on all elements of a transaction, and not simply on the defendant's conductis distinct from minimum contacts jurisdictional analysiswhich focuses at the threshold solely on the defendant's purposeful connection to the forum. ... [S]uch a provision standing alone would be insufficient to confer jurisdiction. *794 Id. at 482, 105 S.Ct. at 2187 (citations omitted); Stuart v. Spademan, 772 F.2d 1185, 1189 (5th Cir.1985)(choice of law provision must be distinguished from choice of forum provision which designates specifically the forum wherein actions relating to agreement are to be brought).
¶ 11 We agree that a provision in an agreement that the laws of a particular forum are to govern disputes arising under the agreement is not the equivalent of a consent to personal jurisdiction. Tandy Computer Leasing v. DeMarco, 388 Pa.Super. 128, 564 A.2d 1299, 1303 (1989). Here, in contrast to Burger King and Tandy but similar to Potomac Leasing v. French Connection, 172 Mich.App. 108, 431 N.W.2d 214, 216 (1988), we have the parties agreeing in advance of litigation to submit to the personal jurisdiction of a particular forum. Burger King, supra, 471 U.S. at 472 n. 14, 105 S.Ct. 2174; National Equipment Rental Ltd. v. Miller, 73 Mich.App. 421, 251 N.W.2d 611 (1977).
¶ 12 At bar, the plaintiff proffers the defendants agreed to submit to Michigan's jurisdiction in Paragraph 16 of the lease agreement, which provides:
Consent to Michigan Jurisdiction and Venue in consideration for the Lease rate, and in order to induce Lessor to enter into the Lease, LESSEE CONSENTS TO THE PERSONAL JURISDICTION AND VENUE OF ANY COURT LOCATED IN THE COUNTY OF OAKLAND, STATE OF MICHIGAN, and LESSEE WAIVES ALL OBJECTIONS BASED UPON IMPROPER JURISDICTION, VENUE, OR FORUM NON-CONVENIENS.
Moreover, the defendants executed a lease agreement containing the following clause:
Lessee has reviewed and understands all of the terms and conditions of the entire Lease Agreement and that all pages are legally binding.... Lessee was not induced to sign this by any assurances of the Lessor or anyone else. Lessee acknowledges receipt of a copy of the entire Lease, consisting of 4 or more pages.
Therefore, in light of the preceding, for the defendants to argue now that it did not read the lease agreement with the choice of forum language is to no avail. Estate of Brant, 463 Pa. 230, 234-36, 344 A.2d 806, 809 (1975)(failure to read a contract does not serve as a basis to avoid the contract).
¶ 13 Given the unambiguous provision of the lease agreement quoted above at Paragraph 16, we discern a clear indication that the defendants consented to personal jurisdiction of the court's in Michigan. Stated otherwise, we hold that the court ruled correctly that the 46th Judicial District, State of Michigan court had personal jurisdiction over the defendants so as to enter a default judgment, an order enforceable in Pennsylvania under the full faith and credit clause of the United States Constitution. Burger King, supra.
¶ 14 Affirmed.[2]
NOTES
[1] The denial of the Petition to Strike does not preclude review of the Petition to Open. Fierst v. Commonwealth Land Title Ins. Co., 369 Pa.Super. 355, 535 A.2d 196, 198-99 (1987).
[2] Equally meritless is the defendants' contention that fraud and collusion was the predicate for entry of the default judgment, a claim which lacks specificity as to time, place, person and/or language required for fraud under our Pennsylvania Rules of Civil Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266991/ | 259 Md. 183 (1970)
269 A.2d 615
DIRECTOR, DEPARTMENT OF FORESTS AND PARKS, ACTING FOR AND ON BEHALF OF STATE OF MARYLAND
v.
OLIVER BEACH IMPROVEMENT ASSOCIATION, INC.
[No. 26, September Term, 1970.]
Court of Appeals of Maryland.
Decided October 13, 1970.
The cause was argued before HAMMOND, C.J., and McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.
Richard C. Rice, Special Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellant.
Eugene G. Ricks for appellee.
*184 SMITH, J., delivered the opinion of the Court.
In this case the trial court dismissed a petition for condemnation, saying:
"I think this is a perfect example of the capriciousness and unreasonableness and arbitrariness of our bureaucracy. And I find as a fact that it is not necessary for the Department of Forests and Parks to condemn this property."
We shall reverse this action.
The proceeding in question was brought pursuant to the grant of authority for eminent domain contained in Code (1957), Art. 66C, § 372 as amended by Chapter 36 of the Acts of 1962 and resolution of the Commission of Forests and Parks passed May 26, 1964.[1] Although the petition for condemnation was filed on March 17, 1965, it did not come on for hearing until November 20, 1969. It is obvious that there was substantial sparring between the parties in the interim.
The 5.79 acre tract sought to be condemned is owned by appellee Oliver Beach Improvement Association, Inc. It is located in Baltimore County near the end of Eastern Avenue extended, just off the Gunpowder River, abutting on what is intended to be a part of the eastern boundary of Gunpowder River Valley State Park (the Park), for which park it is desired. The General Assembly as far back as Chapter 804 of the Acts of 1959 appropriated $1,000,000.00 for land acquisition for the Park. Subject land is but a small part of the total acreage of the Park. It is described *185 as "largely wooded" and having "a small amount of marsh land on it". It is a part of what is designated as a bird sanctuary on the Park master plan.
Mr. William A. Parr, Deputy Director of the Department of Forests and Parks (the Department), testified in part as follows:
"Well, the area to be acquired is part of an area, part of an overall area being acquired by the department as part of the Gunpowder Park, and is an area in which several streams head up. It will be used by the Gunpowder Park primarily, or for two factors; a buffer strip, and as a general recreational area for hiking, similar purposes, trails.
* * *
"Well, this was part of an overall study of the entire area; and actually it was laid out through study on the ground through use of aerial photographs, through use of topographic maps of the area, and was laid out for acquisition. * * *"
Examination of the plat filed reveals that the deletion of the subject parcel from the Park would cause a break in an otherwise straight boundary. The northern line of the land sought to be condemned is an existing street or road and an extension of such street.
The plans of the Department for the Park collided with the desires of the local community which had plans for the development for recreational purposes of subject land and the 3.4 acres which will remain in the tract after the condemnation. It is apparent that after the condemnation proceeding was filed substantial pressure was brought to bear in an effort to influence the Department into withdrawing the condemnation proceeding. Certain correspondence to this effect was introduced into evidence over objection.
The Director of the Department (the Director) was questioned as to a meeting which he attended on March 6, 1966, and a letter to him from Senator James A. Pine *186 of Baltimore County, in which it was stated, "[Y]ou promised that this suit would not be necessary as long as the property in question was used for recreational facilities." The Director did not deny the statement but said he did not recall it. There was introduced into evidence a letter from the Director to Senator Pine dated August 22, 1966, which read as follows:
"DEPARTMENT OF FORESTS AND PARKS
August 22, 1966
Honorable James A. Pine
Senator, Senate of Maryland
24 West Pennsylvania Avenue
Towson, Maryland 21013
Dear Senator Pine:
Thank you for your letters of August 1 and August 18, 1966, concerning the condemnation suit now pending to acquire a portion of the property owned by the Oliver Beach Improvement Association, Inc.
Following our discussions during the last session of the General Assembly, no action has been taken to resolve this purchase or to drop the suit, pending the completion of other cases on adjacent property now before the courts. After the completion of these cases, hopefully by early fall, the Department of Forests and Parks can then determine the final disposition of this case. Until then, I believe the best course of action is to continue the present status of the case, and to leave the suit pending.
This position was pointed out to the Oliver Beach Association in my letter dated April 13, 1966. I thought my reasons for requesting a postponement of the suit, in lieu of requesting a dismissal, were clear and were understood by the Association. However, I will again advise the Association of this Department's position and *187 that the continuation is not only in the best interest of the State, but of the Association as well.
Sincerely,
SPENCER P. ELLIS,
Director.
SPE: jh"
Pursuant to the provisions of Code (1957), Art. 35, § 9, the Director was called as a witness by the property owner. At one point the record on cross-examination of him is as follows:
"Q. Did you at any time, after you obtained the authority by law to institute condemnation cases, revoke that resolution? A. I have no power to revoke a resolution of the Commission, so I did not.
"Q. By whom were you invited to attend this meeting? A. By Senator Pine, I believe, possibly by letter from the association; I don't recall exactly.
"Q. Did you have the authority at that time to terminate the condemnation proceeding? A. Yes.
"Q. Did you tell this group that you were? A. I don't recall exactly what I told them, I cannot swear to my words that day.
"Q. But, in any event, it is the position of the Department of Forests and Parks, at least today, to continue this condemnation case? A. It is, sir."
No other correspondence from the Director is before us nor did any other person testify relative to the meeting in question. Over objection the corresponding secretary of the property owner was asked:
"Since the meeting of March 6th, 1966, and relying on the understanding that you received from Mr. Ellis, his verbal statement, what, if *188 anything, has the Oliver Beach Improvement Association done in respect to the development of the property that is sought to be acquired by the State?"
She replied:
"We have affiliated with the Department of Recreation and Parks of Baltimore County; we at present have a fund [sic] center every Friday night in the building; we have a majorette group; we have an arts and crafts class, which was discontinued for the present; we had a summer playground; the [Baltimore County] Department of Recreation and Parks has put in a picnic area; * * *. We have surveyed the property in question, and have marked trees that we would like to cut down. We have talked to the Baltimore County Recreation and Parks, and they said if possibly we could clear some of this land they could help put in a ball diamond, that they don't have the funds to clear it and fill it. We have some fill dirt on the premises. And we have tried on several occasions to have someone knock these trees down, but we don't have a lot of money, and we're trying to get it done at a low cost, or gratis, and it's a pretty hard job."
She testified that there were approximately 680 school children in the Oliver Beach area in addition to "the preschool children".
It is not at all unusual for the exercise of the power of eminent domain to run counter to local desires. It is not every public improvement by way of building, park, road or otherwise which receives unanimous local approval. In Murphy v. State Roads Comm'n., 159 Md. 7, 149 A. 566 (1930), extensive litigation took place as to the location of what travelers to certain of the resorts know today as Maryland Route 404 in Caroline County on the east side of Denton. There were strong contentions that other *189 routes would be better routes. Judge Offutt said for the Court:
"Ordinarily the question of whether a proposed highway is required by public necessity is legislative rather than judicial (Elliott on Roads and Streets, sec. 213; Nichols on Eminent Domain, secs. 333, 334); and while the question as to whether the proposed use is public in its nature may ultimately become a judicial one (Ibid., sec. 52; Van Witsen v. Gutman, 79 Md. 405), when the Legislature has determined that a proposed improvement is public in its nature, the prima facie presumption is that the use thus declared to be public is public. Nichols, Eminent Domain, sec. 52. So too when the Legislature has determined that a proposed use is public in character, it may delegate, to a board, commission, or other agency, power to ascertain and determine what property is needed for that use, and the decision of such an agency as to the public necessity for taking particular property is not subject to judicial review unless its decision is so oppressive, arbitrary or unreasonable as to suggest bad faith. Nichols, Eminent Domain, secs. 333, 334." Id. at 15.
See also Sollins v. Baltimore County, 253 Md. 407, 252 A.2d 819 (1969); Kline v. City of Rockville, 245 Md. 625, 227 A.2d 217 (1967); and Wash. San. Comm. v. Santorios, 234 Md. 342, 345-6, 199 A.2d 206 (1964).
It is noteworthy that in this case the trial judge, although stating that he found as a fact that it was not necessary for the Department to condemn the property, gave no basis for that finding with his conclusion that this was "a perfect example of the capriciousness and unreasonableness and arbitrariness of our bureaucracy", other than his comment:
"I would think that the State Departments would encourage the people of communities to *190 acquire and develop, however slowly, but nonetheless to develop recreational facilities for those who live in those communities. If the Department of Forests and Parks is permitted to condemn this property, it means that the residents of this community will lose all control over that which is condemned. It has been pointed out their plans, in the future, it's true, but hopefully are to clear out part of it and put up a ball diamond for the use of the kids of the neighborhood. If this condemnation is permitted they can't do it. The reasons given behind the resolution to condemn are, in my opinion, completely frivolous.
"I trust that in the future this department and other departments of the State will encourage the type of activity of the people of the Oliver Beach Improvement Association, instead of discouraging such laudable activities. And I think it's disgraceful also that these people have been put in a position for four and a half years of not knowing what is going to happen to the recreational area which they purchased and are slowly developing for their own children and their own families, and that for four and a half years they haven't really known what to do with the portion which the Department of Forests and Parks seeks to condemn. So, I find as a fact from the testimony that the Defendant has amply met the burden of proof that the Department of Forests and Parks, in this particular instance, is acting in an arbitrary, unreasonable and capricious manner. The Defendant's motion for preliminary hearing on issue of law is granted, and the petition for condemnation is dismissed."
For authority for the procedure here followed in deciding the issue of the right to condemn as a preliminary matter see Lustine v. State Roads Comm., 217 Md. 274, 278, 142 A.2d 566 (1958).
The fact that the Director might at some point have *191 seemed to agree under pressure from the community to drop this condemnation proceeding, a point not proven by the evidence and yet not denied by the Director, in the absence of other evidence would not cause the decision to condemn here to amount to a decision "so oppressive, arbitrary or unreasonable as to suggest bad faith." There is not even the slightest intimation that the discretion here exercised was not honestly exercised. It is obvious that an overall plan was established. It is further obvious from an examination of the plat that the land sought to be condemned fits into the overall plan.
It is neither surprising nor unusual that a local community in a situation such as this might prefer that land be used for recreation for local children rather than as a bird sanctuary as a part of an overall State plan for park development calculated to benefit the State as a whole. Their attitude is but little different from that of the property owners in Johnson v. Gas & Electric Co., 187 Md. 454, 50 A.2d 918 (1947), who preferred an underground power line to an overhead line, or from that in State Roads Comm. v. Franklin, 201 Md. 549, 95 A.2d 99 (1953), where the property owners contended that the State Roads Commission should not be permitted to condemn for future expressway construction when only one lane was being built at the time. Furthermore, both of those situations and the current situation are but little, if any, different from that in Murphy where there were strong contentions by local interests as to what they regarded as better locations for the proposed highway. However valid and reasonable such contentions of local interests may appear in the realm of the political, they fall far short of legally establishing bad faith. If local residents were to be permitted to substitute their desires for the overall plan of the sovereign authority for any given tract of land sought to be condemned, however worthwhile their desires might be, the construction of public improvements would become most difficult.
We conclude that the land acquisition here sought is reasonable under the circumstances. We fail to find evidence *192 that the action of the condemning authority is so oppressive, arbitrary or unreasonable as to suggest bad faith.
Since the proceeding was dismissed on a preliminary motion relative to necessity and prior to the convening of a jury to value the property, it will be necessary upon the remand for a jury to be impaneled.
Order reversed and case remanded for further proceedings; appellee to pay the costs.
NOTES
[1] Prior to the passage of Chapter 75 of the Acts of 1964, the Commission of Forests and Parks was responsible for "supervising and directing the affairs of [the] Department of Forests and Parks". By that act, effective June 1, 1964, the Commission was designated to "serve as an advisory committee to the Director of the Department" with power to "make suggestions and give notice to the Director as to the operations and administration of the Department", and the Director was charged with "the operation and conduct of the Department" being "responsible solely to the Governor". Code (1969 Suppl.), Art. 66C, § 344 now provides, "The Director is in sole and active charge of the Department subject only to his responsibility to the Secretary of Natural Resources." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266999/ | 440 Pa. 195 (1970)
Commonwealth, Appellant,
v.
Harmon.
Supreme Court of Pennsylvania.
Argued November 17, 1969.
October 9, 1970.
Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
*196 James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Richard I. Torpey, with him Jeffry A. Mintz, for appellee.
OPINION BY MR. JUSTICE EAGEN, October 9, 1970:
This is an appeal by the Commonwealth from an order entered below sustaining a motion to suppress a recorded incriminating statement obtained from the defendant, Barry Harmon, during police custody.
After the motion to suppress was filed, an evidentiary hearing was conducted.
The Commonwealth's witnesses testified as follows as to Harmon's arrest and the circumstances under which the suppressed statement was obtained:
On the night of August 22, 1968, Walton Posey was fatally shot in a bar in Philadelphia. About 6:30 a.m. on August 23rd, police officers went to the residence of the defendant, Harmon, awakened the family, took Harmon into custody and transferred him to the Homicide Division in the Police Administration Building. From about 7:30 to 8:15 a.m. Harmon, eighteen years of age, was questioned by Detective Sergeant Funk of the Police Homicide Division concerning the Posey killing, but said nothing of an incriminating nature. *197 Before this questioning began, the Detective Sergeant read to Harmon from a printed card a warning of the constitutional rights required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), including his right to have counsel present during the questioning and his right to have such assistance supplied if he couldn't afford it. Harmon indicated that he understood these rights and didn't request the assistance of an attorney.
Beginning about 8:30 a.m. Harmon was questioned by Detectives McGill and Brown. At about 9 a.m. Harmon was given, with his consent, a polygraph test by Detective Cullen. At the conclusion of this test, the questioning by Detectives McGill and Brown resumed. About 12:30 p.m. Harmon was given a "coke", his first sustenance of the day, and then the questioning was taken up by a Detective Patterson with McGill and Brown watching the interrogation from an adjoining room through a one-way glass-covered aperture. Shortly thereafter, in answer to Patterson's questions, Harmon admitted that on the night of August 22, 1968, while armed with a shotgun, he entered the bar where Posey was killed and fired a shot. Following this, a second polygraph test was taken. About 3:15 p.m. Harmon was again given a warning of his "Miranda" rights, and the statement which the court below suppressed was taken. The statement, in question and answer form, was recorded on a typewriter and when completed was read and signed by Harmon at about 4:35 p.m.
However, testimony offered on behalf of Harmon at the hearing established the following, which the lower court found to be true and incorporated into its findings of fact:
When Harmon was taken into police custody at his home during the early morning of August 23rd, both he and his mother requested of the arresting officers *198 that she be permitted to accompany him to police headquarters, but these requests were refused. Harmon's mother then arranged for private transportation and arrived at the Homicide Division in the Police Administration Building about the same time as her son. She immediately asked to see him, but the request was refused. Similar requests were repeated many, many times during the day, but the most favorable response she received was that she could see her son soon. This "soon" finally turned out to be 6 p.m.
While being questioned by the police, Harmon himself made repeated inquiries as to whether his mother or anyone else was there to see him, but the detectives "acted like they didn't hear me . . . ."
About 11:30 a.m. on August 23, 1968, Robert Manley, a field representative for the Commission on Human Relations who had worked with Harmon during the preceding months, upon being informed of Harmon's arrest, visited the Homicide Division at police headquarters and requested permission to see him. He was told by Detective Sergeant Funk that he could see Harmon when the police "were finished with him." Manley then left police headquarters and attempted to obtain legal assistance for Harmon. About 3 p.m. he arrived back at police headquarters and his second request to see Harmon was refused.
About 4:15 p.m. on August 23, 1968, Jeffry A. Mintz, Esq., of the Public Defender's Office arrived at police headquarters, and after talking with Harmon's mother, he knocked at the door of the room where Harmon was being questioned and told a responding police officer that he represented Harmon, that he wanted to see his client and that he didn't want him to make any statement. He was told to have a seat and to wait until he was called. Mintz, Manley and Harmon's mother were finally granted permission to see Harmon at *199 6 p.m. At this time, Harmon appeared "washed out or drained" and was "shaking, crying and burying his head in his hands . . . ."
The Commonwealth's position is that, in view of Harmon's failure to request the assistance of legal counsel after having been fully informed of this right, there was no constitutional obligation on the part of the police to permit third persons (other than a lawyer Harmon personally requested) to "intrude" upon the interrogation. And decisions in other jurisdictions lend some support to this position. See People v. Eli, 66 Cal. 2d 63, 56 Cal. Rptr. 916, 424 P. 2d 356 (1967); People v. Pierre, 114 Ill. App. 2d 283, 252 N.E. 2d 706 (1969); and People v. Townsend, 4 Cr. L. 2068 (Kings County Supreme Court October 8, 1968). However, without reaching the issue of whether or not the challenged statement was secured under impermissible constitutional circumstances, we refuse to overrule the lower court's ruling suppressing the statement.
While the trial court's conclusions at a "Jackson" hearing are subject to review on appeal, its findings of fact if supported by the evidence are not. Commonwealth v. Tabb, 433 Pa. 204, 249 A. 2d 546 (1969). The facts found by the lower court, which are amply supported by the record, disclose the use of tactics in the securing of the challenged statement which we cannot condone. If for no more than fairness and policy, the suppression order should be affirmed.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2693278/ | [Cite as Internatl. Assn. of Firefighters, Local 136 v. Dayton, 2013-Ohio-2759.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
INTERNATIONAL ASSOCIATION OF :
FIREFIGHTERS, LOCAL 136 AND
DAVID P. STRAWN :
Plaintiffs-Appellees : C.A. CASE NO. 25423
v. : T.C. NO. 12CV2478
THE CITY OF DAYTON : (Civil appeal from
Common Pleas Court)
Defendant-Appellant :
..........
OPINION
Rendered on the 28th day of June , 2013.
..........
SUSAN D. JANSEN, Atty. Reg. No. 0039995, 111 W. First Street, Suite 1100, Dayton,
Ohio 45402
Attorney for Plaintiffs-Appellees
THOMAS M. GREEN, Atty. Reg. No. 0016361, 800 Performance Place, 109 N. Main
Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} The City of Dayton appeals from a judgment of the Montgomery
2
County Court of Common Pleas, which denied the City’s motion to vacate an arbitration
award in favor of David Strawn and granted the motion of the International Association of
Firefighters, Local 136, and Strawn to confirm the arbitration award. For the following
reasons, the trial court’s judgment will be affirmed.
I.
{¶ 2} After an evidentiary hearing, the arbitrator found the following facts:
{¶ 3} David Strawn was hired by the City of Dayton Fire Department as a
paramedic. While employed as a paramedic, Strawn received two commendations, one in
1996 and another in 1998. Strawn became a full-time firefighter with the Dayton Fire
Department in 1999.
{¶ 4} On March 14, 2008, Strawn fell while fighting a fire and sustained an injury
to his right knee. Pursuant to department policy, he completed an injury investigation report
and submitted it to his supervisor, Lt. Ty Grable, who recommended injury leave, if
necessary. The acting fire chief at the time, Herbert Redden II, also recommended leave
should it be needed in the future.
{¶ 5} Strawn did not miss work in the spring of 2008, but he continued to have
problems with his right knee. On July 14, 2008, he did not report to work and called off
because of problems with that knee. Strawn did not work between July 14 and September
12, 2008. The department requested, and he submitted, a medical certification form for his
absence from work; he was not asked to complete and submit an injury investigation report.
Strawn was considered to be on injury leave during this period. After Strawn returned to
work on September 18, he did not miss any work for the remainder of that year.
[Cite as Internatl. Assn. of Firefighters, Local 136 v. Dayton, 2013-Ohio-2759.]
{¶ 6} In January 2009, Strawn had surgery performed on his right knee. As a
result, he missed six weeks of work. Upon his return to work, he provided a medical
certification form; he was not asked to provide an injury investigation report. The City
granted injury leave for the six-week period he did not work.
{¶ 7} Strawn was again unable to report to work due to his knee on July 30 and
August 3, 2009. Strawn was seen by his treating physician on August 3, and he was
released to return to work the following day. He reported for his next scheduled work day
on August 6, 2009. Strawn again completed a medical certification form upon his return to
work, and he was granted injury leave for the two days of work that he missed. Again,
Strawn was not asked to complete an injury investigation report for these absences.
{¶ 8} After returning to work on August 6, 2009, Strawn regularly saw his treating
physician for examination and treatment of his right knee. Strawn repeatedly received a
series of Synvisc shots, including one on April 19, that helped lubricate his right knee.
{¶ 9} On April 23, 2010, Strawn woke at 5:30 a.m., intending to report to work.
As he attempted to get out of bed, he had severe pain in his right knee. The pain was so
severe that he was unable to put any weight on his right leg. Strawn concluded that he
would be unable to perform his duties as a firefighter, and he called the dispatcher and
reported that he would not be able to report to work. Strawn testified that he did not slip
and fall, bump his knee, or otherwise do anything to cause the pain in his knee.
{¶ 10} On April 26, 2010, Strawn was seen by his treating physician and informed
that he could return to work on April 27, without restrictions. Strawn missed two days of
work, and returned to his normal schedule on April 29, 2010. Strawn submitted a medical
certification form, as he had done in the past.
4
{¶ 11} The City asked Strawn to complete an injury investigation report for the
absences on April 23 and 26, 2010. Strawn completed the form and submitted it, along
with a copy of the injury investigation report for the March 2008 injury. The submission of
the March 2008 report “was in accordance with [the City’s] practice and policy for showing
that the previous claim for injury leave on April 23 and 26, 2010 was related to the March
14, 2008 injury.” (Arbitrator’s Opinion and Award, p. 6.)
{¶ 12} By letter dated May 27, 2010, Strawn was notified that his request for injury
leave for April 23 and 26, 2010 was denied. The reason for the denial was that his alleged
re-injury on April 23 did not arise out of the scope and during the course of his employment.
Strawn’s injury leave pay was converted to sick leave. “Prior to the notification that
[Strawn’s] request for injury leave was denied, [Strawn] was not informed that his Medical
Certification form lacked sufficient information, that more information was needed or that
he did not establish a basis for granting injury leave. According to the Grievant [Strawn] he
went through the same process that he had in the past.”
{¶ 13} Strawn filed a timely grievance of the denial of his injury leave request. In
accordance with the collective bargaining agreement (CBA) between the City of Dayton and the
International Association of Firefighters, Local 136 (“the Union”), the matter was first presented
to the assistant chief of fire, who denied the grievance, stating, “Given that the knee pain
occurred at home and while sleeping in bed his injury leave was denied for the cause did not
occur in the course of and arising out of employment with the City of Dayton.” The grievance
was then submitted to the director of fire services. After a “second step hearing,” the grievance
was denied by the director. The grievance then proceeded to binding arbitration with the Union
5
as Strawn’s representative. (See Article 21 of the Agreement.)
{¶ 14} After a hearing, the arbitrator sustained Strawn’s grievance, and ordered the City
to grant him two days of injury leave for April 23 and 26, 2010, and to credit him for the two
days of sick leave that he was required to use. The arbitrator (and the parties) considered the
principal issue to be whether the pain Strawn suffered on April 23, 2010 was the result of the
injury incurred on March 14, 2008 while performing his duties as a firefighter for the City. In a
lengthy opinion, the arbitrator found that it was. The arbitrator stated that “the history of
Grievant’s receiving injury leave and the continuing treatment of the Grievant for the knee injury
clearly establishes a causal nexus.” The arbitrator concluded that the Union had established, by
a preponderance of the evidence, that the City had violated the provisions of Article 12, Section 1
of the CBA by denying Strawn the right to use injury leave for his absence from work on April 23
and 26, 2010.
{¶ 15} The arbitrator rejected the City’s contention that injury leave was properly denied
because Strawn’s medical certification form failed to connect that April 2010 complaint to his
March 2008 injury. The arbitrator stated:
Contrary to the Employer’s claim that it has no obligation to take the initiative to
prove or disprove the cause of an employee’s claim, it is a party to the Collective
Bargaining Agreement, and as a party it is jointly responsible for its administration
in a fair and reasonable manner. If the employer in its discretion needed
additional medical information or the information received was incomplete, it
should have requested such either directly from the treating physician or have the
Grievant request such. At the very least it should have told the Grievant that the
6
Medical Certification form did not contain sufficient information, or that it needed
additional information. The Employer did not do this. However, the Employer
did require the Grievant to produce the Injury Investigation Report (Joint Exhibit
#4) which clearly tied his claim for injury pay on April 23 and 26, 2010 to the
March 14, 2008 on the job injury. In the opinion of the Arbitrator, the Employer
waived its right to complain about the inadequacy to the Grievant and/or to either
request additional information or have the Grievant do so. Based on the
testimony of the Deputy Director of Human Resources it certainly had the
authority and the capacity to obtain additional medical information from the
physician.
{¶ 16} The arbitrator considered the following evidence in reaching his conclusions: 1)
the history of Strawn’s injury; 2) the City’s granting of injury leave on three previous occasions;
3) the circumstances under which the injury leaves were granted; 4) Strawn’s continued medical
treatment for the knee injury; 5) Strawn’s compliance with the requirements for injury leave; 6)
the City’s failure to communicate any deficiency on the medical certification form to Strawn or
request additional information; and, 7) the lack of any evidence that Strawn was a malingerer.
{¶ 17} On April 3, 2012, the City filed a motion to vacate the arbitrator’s award in the
court of common pleas. The City claimed that the arbitrator had “acted outside the scope of his
authority by imposing an extra-contractual obligation on the City not contained in its collective
bargaining agreement,” specifically the duty to investigate whether an employee submitted
sufficient information before denying injury leave. The City further claimed that the arbitrator
exceeded his powers “in determining that the City was required to grant injury leave because all
7
conditions precedent were met under Article 12.” The City argued that Article 12 gave the City
discretion to grant or deny injury leave requests. The Union and Strawn opposed the City’s
motion and filed a cross-motion to confirm the arbitrator’s award.
{¶ 18} The trial court denied the City’s motion to vacate the arbitration award and
granted the Union’s and Strawn’s motion to confirm the award. The trial court reasoned:
Here, after reviewing the record, the Court concludes that the Arbitrator’s
decision and award was rationally related to the CBA. The Employer suggests
that the Arbitrator imposed a “draconian” duty on it to seek more information
when it was under no contractual or legal obligation to do so. However, the
Arbitrator found that the Employer is a party to the CBA and as a party it is jointly
responsible for its administration in a fair and reasonable manner. He further
explained that the Employer waived its right to complain about the inadequacy of
the Medical Certification by failing to communicate any perceived inadequacy to
Strawn. Moreover, the Arbitrator found that although the CBA may contain
discretionary language, it created a right to injury leave when all conditions
precedent were met and the practice has been to grant the leave. The Arbitrator’s
interpretation that the CBA may contain discretionary language, but created a right
to injury leave when all conditions precedent were met, is reasonable. This is
buttressed by the seven reasons the Arbitrator relied on in coming to his decision
and award.
As such, the Arbitrator’s decision and award is rationally related to the
CBA and draws its essence from the CBA. The Arbitrator’s decision is not
8
unlawful, arbitrary, or capricious. Thus, the Court must confirm the Arbitrator’s
award.
{¶ 19} The City appeals from the trial court’s judgment
II.
{¶ 20} The City’s sole assignment of error states that “[t]he trial court erred in
overruling the City’s motion to vacate the arbitration award and sustaining the Union’s motion to
confirm the arbitration award.”
{¶ 21} “Appellate review of an arbitration award is confined to an evaluation of the
judicial order confirming, modifying, or vacating the award; we do not review the merits of the
arbitrator’s award.” Sicor Secs., Inc. v. Albert, 2d Dist. Montgomery No. 22799,
2010-Ohio-217, citing, e.g., Warren Educ. Assn. v. Warren City Bd. of Educ., 18 Ohio St.3d 170,
174, 480 N.E.2d 456 (1985). Because arbitration is a creature of private contract, courts must
ignore errors of fact or law by the arbitrator. Piqua v. Fraternal Order of Police, Ohio Labor
Council, Inc., 185 Ohio App. 3d 496, 2009-Ohio-6591, 924 N.E. 2d 876, ¶ 18 (2d Dist.)
Judicial review of arbitration awards is limited in order to encourage parties to
resolve their disputes with arbitration. This has long been public policy in Ohio.
The state and courts encourage arbitration because it “provides parties with a
relatively speedy and inexpensive method of conflict resolution and has the
additional advantage of unburdening crowded court dockets.” Appellate courts
must ensure that trial courts, the front line of arbitral review, do not exceed the
scope of their review authority. Otherwise, “[a]rbitration, which is intended to
avoid litigation, would instead merely become a system of ‘junior varsity trial
9
courts’ offering the losing party complete and rigorous de novo review.” Thus,
judicial review of an arbitrator’s award is strictly limited, “and where a reviewing
court exceeds the permissible scope of review such judgment will be reversed.”
(Internal citations omitted.) FOP, Ohio Labor Council, Inc. at ¶ 16. We review the trial court’s
order de novo. Id. at ¶ 15; United Ohio Ins. Co. v. Central Mut. Ins. Co., 2d Dist. Darke No.
2010 CA 21, 2011-Ohio-2432, ¶ 15.
{¶ 22} “The grounds upon which a trial court may vacate an arbitrator’s award are few
and narrow.” FOP, Ohio Labor Council, Inc. at ¶ 19, citing Dayton v. Internatl. Assoc. of
Firefighters, 2d Dist. Montgomery No. 21681, 2007-Ohio-1337. R.C. 2711.10 identifies four
grounds upon which a common pleas court may vacate an arbitration award: fraud, corruption,
misconduct, and the arbitrator exceeded his or her powers. The City relies primarily upon R.C.
2711.10(D), which authorizes a common pleas court to vacate an arbitration award when “[t]he
arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not made.”
{¶ 23} The essential function of R.C. 2711.10(D) is “to ensure that the parties get
what they bargained for by keeping the arbitrator within the bounds of the authority they gave
him.” FOP, Ohio Labor Council, Inc. at ¶ 21. As we stated in Piqua v. Fraternal Order of
Police, Ohio Labor Council, Inc.,
* * * The arbitration agreement generally explains how the arbitrator may
resolve the parties’ disputes, which often concern how their agreement, in which
the arbitration provision is contained, should be understood. In this situation,
“the function of the arbitrator is to determine and carry out the mutual intent of the
10
parties by interpreting the agreement and applying its provisions to the issues
before him or her.”
Like arbitral review generally, a trial court’s inquiry into whether an
arbitrator exceeded his powers under the parties’ agreement is limited. Paragraph
(D) is not violated if “the arbitrator’s award draws its essence from the collective
bargaining agreement and is not unlawful, arbitrary or capricious.” Generally, if
the arbitrator’s award is based on the language and requirements of the agreement,
the arbitrator has not exceeded his powers.
***
An arbitrator’s award draws its essence from an agreement when (1) the
award does not conflict with the express terms of the agreement and (2) the award
has rational support or can be rationally derived from the terms of the agreement.
(Citations omitted.) Id. at ¶ 21-22, ¶ 24.
{¶ 24} It is undisputed that the parties have entered into a collective bargaining
agreement, which allows, as the third step of resolving a grievance, that the matter be submitted
to binding arbitration. (Joint Exhibit 1.) The arbitrator’s decision is “final and binding” on the
parties. (Article 21, Section 4 of the CBA.) However, the arbitrator “shall have no power to
add to or subtract from, change, modify, or amend any of the provisions” of the CBA. The
parties agreed at the arbitration hearing that Strawn’s grievance was properly before the
arbitrator.
{¶ 25} The issue before the arbitrator was whether the City properly denied Strawn’s
request for injury leave on April 23 and 26, 2010. Article 12, Section 1 of the CBA, which
11
concerns the granting of injury leave, provides, in relevant part:
Injury leave is leave of absence with pay for an employee to recover from a
job connected occupational illness or injury received in the course of and arising
out of his/her employment with Management. Leave is not deducted from sick
leave credits.
Injury leave may be granted provided the injury is reported to the
immediate supervisor or designee within seventy-two (72) hours after the
occurrence * * *.
{¶ 26} The City first claims that the documents submitted to the City by Strawn failed
to medically link his April 2010 knee pain to his 2008 job-related injury and that the arbitrator
impermissibly modified the CBA’s language by granting injury leave to Strawn without a
connection between the pain and a job-related injury. As stated above, the arbitrator found,
based on the evidence, that the Union had established that Strawn’s pain in April 2010 resulted
from the job-connected injury incurred on March 14, 2008, while Strawn was performing his
duties as a firefighter for the City. We cannot review the correctness of the arbitrator’s factual
finding.
{¶ 27} The trial court concluded that the Arbitrator’s opinion and award was rationally
related to the CBA and drew its essence from the CBA. Upon review of the record, we agree
that the arbitrator did not modify the CBA. Rather, he found, based on the evidence, that
Strawn’s pain was due to a job-connected injury that was received in the course of and arose out
of his employment with the City as a firefighter. The trial court correctly concluded that the
arbitrator’s opinion and award is not contrary to the terms of the CBA and is rationally derived
12
from the terms of that agreement.
{¶ 28} Second, the City contends that the arbitrator exceeded the scope of his authority
by imposing a requirement on the City to seek additional information from employees or their
physicians if the documentation in support of the injury leave request is deficient. As the City
previously argued to the trial court, the City asserts on appeal that the arbitrator “imposed a
draconian duty on the City to seek more information when it was under no contractual or legal
obligation to do so.”
{¶ 29} We do not read the arbitrator’s opinion as creating an ongoing obligation that the
City request supplemental information from an employee or the employee’s physician in order to
assist an employee in substantiating his or her claim for injury leave. Rather, the arbitrator
noted, based on the evidence presented at the arbitration hearing, that if the City believed it
needed additional information in this case to rebut Strawn’s claims and evidence, it could have
made an appropriate request for that information.
{¶ 30} As discussed by the arbitrator, the medical certification form submitted by
Strawn on April 26, 2010 provided a diagnosis of Rt. Knee 716.56 or 716.86; Brent McKenzie,
the acting director of human resources for the City, testified that he did not recall reviewing
anything in the file that would explain that code. McKenzie had further testified that the City
sometimes sends back the medical certification form to the employee or contacts the physician if
the City needs additional information. The arbitrator found that the City had not requested
additional information in this case, but only asked for an injury investigation report. The injury
investigation report submitted by Strawn in May 2010 attached the March 2008 injury
investigation report, thus relating his April 2010 pain with his original job-connected injury.
13
Strawn’s direct supervisor recommended allowing injury leave. The arbitrator found that
Strawn’s claim for injury leave in April 2010 was not for a new injury, but for the continuing
recovery from the injury of March 14, 2008. The arbitrator stated that the City was aware of
this, and that “supervisory staff had personal knowledge of [Strawn’s] injury and the difficulties
he had from time to time with his recovery that required time off from work.” The City had
previously granted injury leave based on Strawn’s submission of a medical certification form.
{¶ 31} Upon review of the administrative record, the arbitrator did not exceed his
authority by finding that the City had the authority and capacity to obtain additional medical
information and that, under the circumstances of this case, the City should have communicated
any perceived inadequacy in the medical certification form to Strawn or his physician.
{¶ 32} Finally, the City claims that the trial court erred in confirming the award, because
the arbitrator exceeded his powers in determining that the City was required to grant injury leave.
The City asserts that Article 12 “unambiguously granted the City discretion in granting or
denying injury leave requests.” The arbitrator concluded that the CBA “may contain
discretionary language, but it has created a right to injury leave when all conditions precedent are
met and the practice has been to grant the leave.” The trial court found that the arbitrator’s
interpretation of the CBA was reasonable, and we agree.
{¶ 33} Article 12 gives the City discretion to deny requests for injury leave, i.e., the
City need not grant every request for injury leave. However, Article 12 specifically creates
injury leave as a “leave of absence with pay for an employee to recover from a job connected * *
* injury received in the course of and arising out of his/her employment with Management.”
The arbitrator had further noted that, as a party to the CBA, the City is responsible for the CBA’s
14
administration in a fair and reasonable manner. The arbitrator thus reasonably concluded that
Strawn was entitled to injury leave when he established that his April 2010 pain was a recurrence
of his March 2008 injury, which was received in the course of and arising out of his employment
with the City, and the City’s practice has been to grant injury leave.
{¶ 34} The City’s assignment of error is overruled.
III.
{¶ 35} The trial court’s judgment will be affirmed.
..........
FAIN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Susan D. Jansen
Thomas M. Green
Hon. Michael W. Krumholtz | 01-03-2023 | 08-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1866038/ | 188 Mich. App. 270 (1991)
469 N.W.2d 441
IN RE MUSKEGON COUNTY BOARD OF COMMISSIONERS
Docket No. 128374.
Michigan Court of Appeals.
Decided April 1, 1991, at 10:10 A.M.
Vander Ploeg, Ruck, Luyendyk & Wells (by Stephen C. Corwin), for the plaintiff.
McCroskey, Feldman, Cochrane & Brock, P.C. (by Eric C. Lewis), for the Muskegon County Sheriff's Department.
Before: MAHER, P.J., and SAWYER and BRENNAN, JJ.
SAWYER, J.
This original action comes before us on plaintiff's complaint for an order of superintending control, which requests us to direct defendant, the Chief Judge of the Muskegon Circuit Court, to take certain actions, and to refrain from taking certain other actions, with respect to the ongoing overcrowding problems at the Muskegon County jail. We conclude that defendant has exceeded his authority in some respects and grant some of the relief requested by plaintiff.
This action arises out of a chronic overcrowding problem at the Muskegon County jail and ongoing disputes between the Muskegon County Sheriff and the Muskegon County Prosecuting Attorney on the one hand and the Muskegon County Board of Commissioners on the other hand. The sheriff *274 has been faced with a grossly overcrowded jail[1] and a board of commissioners which is apparently unwilling to implement any solutions to the problem beyond allowing the early release of inmates under the county jail overcrowding act (JOA). MCL 801.51 et seq.; MSA 28.1748(1) et seq.
The sheriff was faced with additional problems because the staffing at the jail failed to meet the minimum requirements established by the Department of Corrections, which had directed the sheriff to increase the number of deputies on duty at the jail. The sheriff sought additional funding from the county to increase the number of deputies. Plaintiff has apparently taken the position that the sheriff's budget is sufficient and that, if necessary, the sheriff should transfer deputies from the road patrol to jail duty.
The instant dispute began when the sheriff, on January 26, 1990, declared an overcrowding emergency under the JOA.[2] Under § 5 of the JOA,[3] during the first fourteen days of an overcrowding emergency, various local officials, including the sheriff, prosecutor, judges, the county commissioners, and the county executive, are directed to take whatever action, individually and collectively, which might be within their power to take in order to relieve the overcrowding problem. The statute, *275 while authorizing these officials to take such action, does not specifically command that specific steps be taken to alleviate the overcrowding situation. Thus, the success of § 5 in addressing the problem depends to a great extent on the willingness of the local officials to take action and the realistic availability of such remedies. In any event, such action in Muskegon County did not relieve the problem.
If the actions taken pursuant to § 5 do not, within fourteen days of the declaration of the emergency, reduce the jail population to the higher of ninety percent of the rated design capacity or ten empty beds,[4] then under § 6[5] the sheriff must notify the chief circuit judge and provide the judge with a list of all prisoners, including information such as the reason for incarceration and the length of the sentence. The chief circuit judge then classifies the prisoners either high risk or low risk and sets a minimum and maximum percentage by which the sentences of low-risk prisoners may be reduced to relieve the overcrowding. The sheriff then reduces the sentences of low-risk inmates by an equal percentage within the minimum and maximum. This step was apparently ineffectual in relieving the overcrowding emergency in Muskegon County.
Meanwhile, the Muskegon County Sheriff and Prosecuting Attorney joined in filing two lawsuits against the Muskegon County Board of Commissioners, demanding more funding for jail space and more staff to cope with the overcrowding. These cases were eventually assigned to defendant. However, the board sought to have defendant disqualified from these suits. Defendant initially *276 denied the motion, and the matter was assigned to a visiting judge appointed by the state court administrator. The visiting judge ruled that defendant be disqualified. It should be noted that defendant, after denying the disqualification motion, declared the JOA to be unconstitutional. Defendant took this action despite the Supreme Court's ruling in Kent Co Prosecutor v Kent Co Sheriff (On Rehearing), 428 Mich 314; 409 NW2d 202 (1987), wherein the Court ruled the JOA constitutional.
Pursuant to the visiting judge's determination that defendant should be disqualified, the matter was reassigned to another visiting judge, Judge Kolenda of the Kent Circuit Court. Judge Kolenda ultimately reversed the determination of unconstitutionality of the statute. To add to the complexity of the situation, the Muskegon County Sheriff and Prosecutor filed a third action against the board, seeking a transfer of inmates to other county jails in an effort to relieve the overcrowding situation in the Muskegon County jail. This action was ultimately consolidated with the first two and assigned to Judge Kolenda. Further, inmates of the Muskegon County jail eventually sought to intervene as plaintiffs in the three suits and sought certification as a class. Ultimately, the sheriff and prosecutor sought to dismiss these actions without prejudice. The actions were dismissed, except for a counterclaim raised by the board. The inmates were certified as a class and were allowed to intervene, limited to the questions relating to enforcement of the JOA. Judge Kolenda further ordered that the sentences of all inmates in the Muskegon County jail as of June 4, 1990, be reduced by thirty-five percent in order to alleviate the overcrowding. If that sentence reduction did not lower the inmate population to 177 inmates, then the sheriff was to defer acceptance of new *277 prisoners, with certain exceptions.[6] The propriety of Judge Kolenda's rulings are not before us.
These facts serve as background information and are not directly involved in the matter before us. Rather, it is the actions of defendant on April 27, 1990, and thereafter, which give rise to the instant action. Defendant had issued an order to the county board chairman, the sheriff, prosecuting attorney, and chief district judge to appear in his chambers the morning of April 27. A meeting was held off the record to discuss the overcrowding problem. Defendant then took the bench and issued an order directing the sheriff to transfer prisoners to other county jails in western Michigan and further directed the sheriff not to release inmates from incarceration. The sheriff was to transfer a sufficient number of inmates to reduce the inmate population to 225. The costs of the transfers were to be paid out of the sheriff's budget.
Pursuant to defendant's order, the sheriff transferred sixty inmates to the Newaygo County jail on April 29. On May 3, the sheriff notified defendant of this action and reported that the inmate population had been reduced to 203 inmates and that, as of the May 3 memorandum, the inmate population stood at 218. Defendant responded by issuing an order which found that the overcrowding emergency had ended and ordered all inmates returned to the Muskegon County jail.[7]
On May 31, 1990, defendant issued a memorandum to the sheriff classifying prisoners into low-and high-risk groups and establishing a minimum and maximum percentage by which the sentences *278 of low-risk prisoners would be reduced. Defendant further directed that
[n]o high risk offenders shall be released, since the Muskegon County Board of Commissioners has refused to make a good faith attempt to significantly reduce jail population per MCL 801.55 [MSA 28.1748(5).]
Having set this superintending control action in context, we may now turn to the issues raised by plaintiff. Plaintiff seeks to have us declare that defendant must comply with the mandatory release provisions of the JOA and to issue a directive to defendant addressing what he must do in discharging his duties under the JOA. In the alternative, plaintiff requests that we remove defendant from his responsibilities of administering the JOA. Next, plaintiff seeks to have us declare that defendant lacks the authority to order the transfer of prisoners to other county jails and, presumably, direct defendant to abstain from again ordering such transfers.
Plaintiff first complains that defendant has classified prisoners into high- and low-risk groups in such a way as to ensure that very few prisoners are classified low risk. Plaintiff cites defendant's May 31 memorandum to the sheriff in support of this argument. Plaintiff argues that the JOA requires that defendant make a meaningful classification of prisoners into the two groups, that defendant has failed to do so, and that we should direct him to do so.
MCL 801.56(3); MSA 28.1748(6)(3) provides:
After the chief circuit judge for the county in which the jail is located reviews the information presented by the sheriff pursuant to subsection (2), the chief circuit judge shall, for purposes of county *279 jail population reduction, classify the prisoners into 2 groups: those prisoners who, if released, would present a high risk to the public safety, and those who, if released, would not present a high risk to the public safety. The chief circuit judge shall also determine a minimum and a maximum percentage by which the sentences can be reduced. The sheriff shall reduce the sentences of all prisoners who, if released, would not present a high risk to the public safety by an equal percentage which is within the minimum and maximum percentages determined by the chief circuit judge.
The statute itself provides no specific guidance or criteria for a chief circuit judge to apply in classifying prisoners. In the case at bar, defendant has classified the prisoners, but apparently has done so utilizing criteria which result in relatively few prisoners being classified low risk.[8]
We decline plaintiff's request to grant relief on this issue. First, it appears that defendant is complying with the strict terms of the statute. That is, defendant is classifying prisoners into high- and low-risk groups. With regard to how defendant has been classifying the prisoners, we again decline to interfere at this point. Inasmuch as the statute sets forth no criteria for classifying prisoners, we may conclude that under the statute broad discretion is vested in the chief circuit judge in the classification of prisoners. We will not legislate criteria which the Legislature has chosen not to include in its statute. Furthermore, a broad grant of discretion to the chief circuit judge is essential. A chief circuit judge may well wish to classify *280 prisoners differently depending on the circumstances presented in a particular overcrowding emergency. The chief circuit judge should be afforded this discretion so that he may have the flexibility to address each overcrowding crisis in a manner which relieves the jail overcrowding with the least threat to the safety of the community. Accordingly, we will grant the broadest possible deference to a chief circuit judge's classification of prisoners.
Furthermore, the present superintending control action is not the appropriate vehicle to challenge defendant's classification of prisoners. We fail to see what standing plaintiff has to challenge defendant's classification of prisoners. Ultimately all prisoners will have sentence reductions if necessary to relieve the overcrowding. If those reductions are insufficient to address the problem, the sheriff must begin deferring acceptance of new prisoners, with certain exceptions. See MCL 801.58; MSA 28.1748(8). This does not directly affect the rights or obligations of plaintiff.
Rather, any such challenge should come in response to a particular classification of prisoners by the chief circuit judge during a specific jail overcrowding emergency. Such challenge must be brought by an interested party, such as an inmate classified as high risk,[9] a county sheriff who believes the chief circuit judge's classification of prisoners is inadequate to deal with the overcrowding problem faced by the sheriff, or, conceivably, the prosecuting attorney in his role as the chief law enforcement officer of the county.
Finally on this point, even if this is the appropriate manner to challenge the classification and plaintiff is the proper party to raise the challenge, *281 plaintiff has made no showing that defendant's classification of prisoners in his May 31 memorandum constitutes an abuse of discretion. That is, plaintiff has offered nothing to establish that prisoners classified high risk were, in fact, low risk.
We do, however, agree that defendant failed to exercise his obligations under the JOA when he directed the sheriff not to release any high-risk prisoners. More accurately, defendant impermissibly interfered with the sheriff's discharge of his obligations under § 7 of the JOA. MCL 801.57; MSA 28.1748(7) requires that if, after twenty-eight days from the declaration of a jail overcrowding emergency, the jail population has not been sufficiently reduced, the sheriff shall reduce the sentences of all prisoners by the least percentage possible, not to exceed thirty percent, necessary to reduce the inmate population to an acceptable level. No discretion is vested in the sheriff in this regard, nor does the chief circuit judge have any role to play in the operation of this section of the statute.
Accordingly, defendant exceeded his authority when he directed the sheriff in the May 31 memorandum not to release any high-risk prisoners because of plaintiff's lack of good faith in addressing the problem. The sheriff had no choice but to do so if the deadline under § 7 passed and the jail remained overcrowded. While defendant's characterization of plaintiff's conduct in dealing with the problem may be accurate, that conduct would not authorize defendant to direct the sheriff not to release high-risk prisoners. Defendant simply lacked the authority to do so. Accordingly, we direct defendant to cease and desist such interference with the sheriff's discharge of his nondiscretionary duties under § 7 of the JOA.
Plaintiff's brief also expresses concern with defendant's compliance with MCL 801.58; MSA *282 28.1748(8). That section of the JOA provides that, if the jail population is not reduced to the applicable level within forty-two days of the declaration of the overcrowding emergency, the sheriff must defer acceptance of any new prisoners, with certain exceptions. Furthermore, subsection 2 provides that either the sheriff or the sentencing judge may petition the chief circuit judge to approve the acceptance of a prisoner who would otherwise be deferred upon a showing of threat to the public safety if the prisoner is deferred. However, as plaintiff's brief admits, defendant has not interfered with the sheriff's obligations under this section, nor is there any showing that defendant has abused his discretion, either in an individual case or as an ongoing pattern, with respect to his authority to authorize the incarceration of a prisoner who would otherwise be deferred. Accordingly, superintending control on this point would be inappropriate.
We now turn to the events of April 27, 1990. Specifically, plaintiff complains that defendant acted improperly in ordering the transfer of prisoners to other county jails. Plaintiff first argues that defendant acted improperly when he took action without conducting a trial or hearing on the issue whether plaintiff was acting in good faith in addressing the jail overcrowding problem. We disagree with the proposition that defendant was obligated to hold an evidentiary hearing or trial. First, we should note that defendant did not, as plaintiff suggests in his brief, make the finding that plaintiff was not acting in good faith at the April 27 meeting. Rather, that finding came in the May 31 memorandum to the sheriff.
In any event, we view defendant's actions of April 27, including the order to transfer prisoners, as being taken in defendant's administrative capacity *283 as chief circuit judge. We are aware of no requirement that an evidentiary hearing or trial precede the exercise of administrative authority by a chief judge or court.[10] Since defendant's actions were administrative in nature, rather than judicial action in a litigation matter, the procedures employed were adequate.
Plaintiff alleges in its brief that had an evidentiary hearing been held it could have shown that, contrary to defendant's finding in the May 31 memorandum, plaintiff has taken action to address the jail overcrowding problem. However, even accepting plaintiff's conclusory statements to this effect as true, it does not change the fact that, in April and May of 1990, plaintiff had failed to discharge its clear legal duty to provide jail space for county prisoners. MCL 45.16; MSA 5.291 provides in pertinent part:
Each organized county shall, at its own cost and expense, provide ... a suitable and sufficient jail.
MCL 45.16a; MSA 5.291(1) allows counties to meet this obligation by arranging for the housing of prisoners in other facilities:
In lieu of providing a jail, as required in section 16 [MCL 45.16; MSA 5.291], each county may contract with other counties for the use of such counties' jails.
It is undisputed that there has been a continuing overcrowding problem at the Muskegon County jail. Indeed, plaintiff's brief in support of the complaint for superintending control begins by *284 stating that the jail has continuously exceeded its design capacity since January 1990. In fact, at least at one point, the jail population stood in excess of 300 inmates, more than 113 inmates in excess of the jail's rated design capacity. The sheriff was even apparently required to house inmates in the jail's gymnasium. There is no indication from the record, nor does plaintiff even allege, that this condition is due to unforeseen and unusual circumstances which caused a temporary increase in the inmate population, such as a civil insurrection in Muskegon. Rather, all indications from the record are that the overcrowding condition at the Muskegon County jail is chronic and will continue.
It may well be that plaintiff has acted in good faith to address this problem, though the record would not seem to support this conclusion. However, the fact remains that the overcrowded conditions at the jail in the first half of 1990 demonstrate that plaintiff has failed miserably to discharge its clear legal duty under the quoted statutes. Under those statutes, plaintiff has a legal obligation to provide for the housing of prisoners. It may do so either by building a jail which is "suitable and sufficient" under MCL 45.16; MSA 5.291 or by contracting with other counties to house prisoners under MCL 45.16a; MSA 5.291(1). It is clear that plaintiff has failed to discharge its duty by refusing to do either. The Muskegon County jail is insufficient to house Muskegon County's prisoners, and plaintiff has steadfastly refused to appropriate funds and contract with other counties to house its prisoners. The declaration of an overcrowding emergency and the necessity to reduce prisoners' sentences under the JOA is prima facie evidence of this.
However, the mere fact that plaintiff has failed *285 to discharge its statutory duties with respect to the jail does not compel the conclusion that defendant was authorized to administratively order the transfer of prisoners. Accordingly, we turn to plaintiff's remaining arguments with respect to this issue. Plaintiff argues that defendant was not authorized to take action because he had been disqualified from presiding over the litigation brought by the Muskegon County Sheriff and Muskegon County Prosecuting Attorney against plaintiff. We disagree.
Defendant was disqualified from presiding over the litigation then pending before him which arose out of the jail overcrowding problem. Defendant was not disqualified from acting as chief circuit judge. In fact, we are aware of no authority, nor does plaintiff cite any authority, for the proposition that a chief judge may be disqualified from acting as chief judge. MCR 2.003 deals with the disqualification of a judge from presiding over a "proceeding"; i.e., a lawsuit. Further, the chief judge rule, MCR 8.110, provides for no mechanism by which a chief judge may be disqualified from acting in his administrative capacity as chief judge. Presumably there are circumstances in which a chief judge may not wish to act in his administrative capacity because of ethical considerations.[11] This, however, involves the chief judge's own ethical considerations and the judge's personal decision to defer to the chief judge pro tempore.[12]
Although there are no provisions to compel the disqualification of a chief judge from acting in his *286 administrative capacity, the court rules do provide review mechanisms. First, and foremost, is an action for superintending control. Next, where the chief judge has acted unethically, review by the Judicial Tenure Commission is available. Also, where the chief judge has demonstrated an ongoing inability to discharge his administrative functions, his fellow judges could simply not reelect him to the chief judgeship at the end of his term. Finally, where circumstances warrant, the Chief Justice possesses the authority to remove a chief judge. MCR 8.110(D)(1). Thus, we must conclude that while the court rules contemplate controls over the chief judge's execution of administrative authority, they do not contemplate the disqualification of a chief judge from acting as chief judge.
Therefore, defendant retained his authority as chief circuit judge to execute his administrative functions under the JOA and related statutes. However, it is important to underscore the fact that this authority, in fact, is limited to the administrative responsibilities of the chief circuit judge and does not encompass the broad authority of a circuit judge to fix a remedy in an action at equity. Thus, while defendant continues to possess the authority to discharge his responsibilities under the JOA as chief circuit judge, his authority is limited to that which is administratively vested in the chief circuit judge.
Plaintiff next asks us to conclude that defendant lacks the inherent power to direct an expenditure of monies for the housing of prisoners. However, defendant did not directly order such expenditures of monies by plaintiff. Rather, defendant ordered the prisoners transferred. Upon inquiry by plaintiff's counsel, defendant clarified that the costs of these transfers would be borne by the sheriff, not plaintiff. This does not amount to a directive to *287 expend funds, and certainly not by plaintiff. Obviously, as defendant acknowledged, the sheriff would incur costs in order to comply with defendant's order, and that might even prompt the sheriff to seek a supplemental appropriation from plaintiff. However, it is often the case that compliance with a court order incurs a cost by those obligated to abide by the court's order.
This is not a case of a court ordering the appropriation of funds as was presented in Employees and Judge of the Second Judicial Dist Court v Hillsdale Co, 423 Mich 705; 378 NW2d 744 (1985). In Hillsdale, a consolidated case, two judges, a district judge and a circuit judge, entered administrative orders directing the counties involved to pay additional wages to court employees beyond the amounts which the counties had appropriated. The Supreme Court concluded that the trial courts involved could not order the appropriation of additional monies by administrative order. The Court did not conclude that local funding units could not be compelled to increase appropriations. Rather, the Court held that such action must be taken by way of litigation before a neutral judge:
We hold that MCR 8.112(B) does not provide authority to compel expenditures and conclude that when agreement cannot be reached between a court and a funding unit, the court may initiate suit and shall bear the burden of proof regarding expenditures in excess of appropriations. [Id. at 716.]
This, however, is not a case of a court seeking to increase its own funding by administrative order. Thus, Hillsdale is not directly on point. Further, Hillsdale recognizes that, when the appropriate procedures are followed, the courts do have the inherent authority to order local funding units to *288 meet their statutory obligations with respect to appropriations. Indeed, Hillsdale, supra at 721, provides a basis for the conclusion that plaintiff could be compelled to appropriate the funds either to build a "suitable and sufficient" jail or to provide for the housing of prisoners in other facilities:
Where the Legislature has by statute granted authority or created a duty, the local funding unit may not refuse to provide adequate funding to fulfill the function.
The real question before us is not whether defendant possesses the inherent authority to order plaintiff to expend the funds necessary to provide jail space for all of Muskegon County's prisoners. Hillsdale makes it rather clear that he does when acting in his "judicial," as opposed to "administrative," capacity. Further, as noted above, there was no direct order to plaintiff to appropriate money. Rather, defendant ordered the transfer of prisoners to other facilities. Thus, the question before us is whether defendant possesses the authority to order the transfer of prisoners by administrative action as chief circuit judge rather than in the exercise of his judicial function while presiding over an actual case pending before the court.
Defendant justified his order to transfer prisoners on two bases. First, defendant purported to order the transfer of prisoners under § 5 of the JOA.[13] Section 5, however, grants no such authority. By its own terms, § 5 grants no new authority to any official. Rather, it allows local officials to attempt to relieve an overcrowding problem "through any available means which are already within the scope of their individual and collective legal authority." The statute then provides a list of *289 possible actions for local authorities to take. It includes such things as judicial review of bail for reduction or release on recognizance, alternative sentencing, and acceleration of judicial proceedings. Section 5 also suggests the possibility of the sheriff making alternate housing arrangements for prisoners.
Section 5 does not, however, require the sheriff to make alternate housing arrangements. Indeed, § 5 does not mandate that any official actually do anything. It merely provides a fourteen-day period for local officials who are so inclined to take action, which is already within their power to take, to abate the overcrowding emergency before the sentence reductions begin under § 6. More importantly, there is no grant of power under § 5, or anywhere else in the JOA, authorizing the chief circuit judge to administratively order the transfer of prisoners.
Defendant also justified his order under MCL 801.107; MSA 28.1757, which provides:
If in any county there shall not be a jail, or the jail erected shall become unfit or unsafe for the confinement of prisoners, or shall be destroyed by fire or otherwise, the circuit judge of the circuit court ... shall ... designate the jail of some other county for the confinement of the prisoners of such county; which shall thereupon ... become the jail of the county for which it shall have been so designated.
Defendant found that the Muskegon County jail, because of overcrowding,[14] was unfit and unsafe for the population. Defendant then designated, under the above statute, "any other jail that the sheriff *290 can find in the State of Michigan for confinement as a county jail."
We agree with plaintiff that MCL 801.107; MSA 28.1757 does not authorize the actions taken by defendant. That statute was intended to address the situation where a county jail becomes completely unfit for the incarceration of inmates and must be closed, or for some other reason a county finds itself without a jail at all. It was not enacted as a mechanism to relieve jail overcrowding. This statute, which can be traced back to 1846 RS, ch 148, § 7, undoubtedly served to provide the sheriff with the authority to house prisoners outside the county when the county had no jail or the county jail was closed.[15] Furthermore, even by its terms, MCL 801.107; MSA 28.1757 does not authorize the chief circuit judge to order the transfer of prisoners. Rather, it merely directs the chief circuit judge, under certain circumstances, to designate the county jail of another county as the county jail of the circuit judge's county. Thus, even if it were appropriate under the statute for defendant to designate another county jail as Muskegon County's jail, there is no grant of authority under the statute permitting defendant to order the transfer of prisoners to such other jail.
For the above reasons, we conclude that defendant grossly exceeded his authority by administratively ordering the transfer of prisoners. A chief circuit judge is granted no such authority by either statute or court rule. While it is likely that a judge possesses the authority to order the transfer of prisoners, and the appropriation of funds accordingly, in a mandamus action against a county sheriff or the county board of commissioners to *291 compel them to comply with their duties as imposed by statute and the constitution with respect to the housing of county prisoners, no such mandamus action was pending before defendant. Accordingly, defendant is directed to cease and desist from ordering the transfer of prisoners from the Muskegon County jail by administrative action as chief judge of the Fourteenth Judicial Circuit.
For the above reasons, we conclude that plaintiff is entitled to some, though not all, of the relief requested. Accordingly, an order of superintending control shall issue and shall provide as follows:
The Court of Appeals having authorized the filing of a complaint for superintending control and having found that defendant, acting in his administrative capacity as chief circuit judge of the Fourteenth Judicial Circuit, has exceeded his lawful authority, IT IS ORDERED that defendant, Judge Ronald H. Pannucci, Chief Judge of the Fourteenth Judicial Circuit, shall cease and desist from interfering with the Sheriff of Muskegon County in exercising his nondiscretionary duties under MCL 801.57; MSA 28.1748(7) with respect to the release of high-risk prisoners;
IT IS FURTHER ORDERED that defendant, Judge Ronald H. Pannucci, Chief Judge of the Fourteenth Judicial Circuit, shall cease and desist from administratively ordering the transfer of prisoners from the Muskegon County jail to facilities in other counties.
NOTES
[1] The rated design capacity of the Muskegon County jail is 187 inmates. At times, the inmate population at the jail has exceeded 300. It should be noted that plaintiff has taken the position that the capacity of the jail is 225 inmates. Plaintiff takes this position despite the fact that the Department of Corrections, which has oversight authority over county jails and determines the design capacity of jails, has informed Muskegon County that the rated design capacity of its jail is only 187 inmates. In any event, the inmate population in the Muskegon County jail has exceeded even 225 inmates.
[2] MCL 801.52; MSA 28.1748(2). Under this provision, the sheriff must declare an overcrowding emergency if the inmate population exceeds one hundred percent of the rated design capacity of the jail for seven consecutive days.
[3] MCL 801.55; MSA 28.1748(5).
[4] Twenty-five empty beds for jails with a capacity of five hundred beds or more.
[5] MCL 801.56; MSA 28.1748(6).
[6] See MCL 801.58; MSA 28.1748(8).
[7] This apparently occurred and resulted in another overcrowding emergency.
[8] It should be noted that the classification of prisoners into the high-risk category does not ultimately preclude these prisoners from receiving sentence reductions. If the sentence reductions of low-risk prisoners are inadequate to address the problem, then the sentences of all prisoners are reduced, up to thirty percent, in an attempt to reduce the jail population to the applicable level below capacity. MCL 801.57; MSA 28.1748(7).
[9] Presumably no inmate would object to being classified low risk.
[10] Plaintiff's brief alludes to Administrative Order No. 1985-6, 424 Mich lxxxv; Mich Ct R, p A 1-31. That administrative order, however, is inapplicable because it deals solely with disputes between courts and the local funding authority.
[11] For example, the chief judge's spouse may be seeking a contract with the court to provide goods or services. Given the obvious financial conflict of interest, the chief judge might wish to decline to act on the matter and defer the decision to the chief judge pro tempore.
[12] The chief judge's decision in such an area would, of course, be subject to review by the Judicial Tenure Commission.
[13] MCL 801.55; MSA 28.1748(5).
[14] Defendant noted that the inmate population had exceeded three hundred the previous weekend.
[15] MCL 45.16a; MSA 5.291(1), which explicitly authorizes a county to contract with another county to house prisoners, was enacted much later, being added by 1968 PA 93. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1866057/ | 469 N.W.2d 676 (1991)
Shannon M. DAY, A Minor, by Her Mother and Next Friend, Beverly OSTBY; and Beverly Ostby, Appellants,
v.
Judith K. McILRATH and Virgil E. Hunemiller, Appellees.
No. 90-0674.
Supreme Court of Iowa.
May 15, 1991.
Richard R. Morris and John W. Rathert of Beecher, Rathert, Field, Fister, Walker & Morris, Waterloo, for appellants.
Gene Yagla and John A. Stitely of Lindeman & Yagla, Waterloo, for appellee McIlrath.
Timothy W. Hamann of Clark, Butler, Walsh & McGivern, Waterloo, for appellee Hunemiller.
Considered by HARRIS, P.J., and SCHULTZ, CARTER, LAVORATO, and ANDREASEN, JJ.
PER CURIAM.
A car driven by Judith McIlrath and one driven by Virgil Hunemiller collided. McIlrath's passenger Shannon Day, a minor, suffered injuries in the accident. Shannon Day and her mother Beverly Ostby later *677 filed the present lawsuit against both McIlrath and Hunemiller.
During the discovery portions of this litigation, the defendant McIlrath propounded an interrogatory under Iowa Rule of Civil Procedure 125, relating to discovery of experts. This interrogatory asked the plaintiffs to identify all expert witnesses to be called at trial and to state each expert's subject matter of testimony, qualifications, opinions and mental impressions. The plaintiffs objected to this interrogatory insofar as it applied to Shannon Day's treating physicians. The plaintiffs took the position that the testimony of a treating physician is not discoverable under rule 125 because the treating physician's mental impressions and opinions were not "acquired or developed in anticipation of litigation or for trial."
The district court rejected the plaintiffs' argument and entered an order directing the plaintiffs to answer the interrogatories with regard to treating physicians, as well as other experts. The district court provided, however, that the treating physicians would not be required to sign the answers to interrogatories; Iowa Rule of Civil Procedure 125 ordinarily imposes a signature requirement on a retained expert.
The plaintiffs sought and received permission for the present interlocutory appeal to challenge the district court's order.
Iowa Rule of Civil Procedure 125 provides in relevant part as follows:
[D]iscovery of facts known, mental impressions, and opinions held by an expert whom the other party expects to call as a witness at trial, otherwise discoverable under the provisions of R.C.P. 122"a" and acquired or developed in anticipation of litigation or for trial may be obtained [in a specified manner].
....
Nothing in this rule shall be construed to preclude a witness from testifying as to (1) knowledge of the facts obtained by the witness prior to being retained as an expert or (2) mental impressions or opinions formed by the witness which are based on such knowledge.
(Emphasis added.)
The question raised here is whether the factual knowledge, mental impressions and opinions of a treating physician were "acquired or developed in anticipation of litigation or for trial," thereby requiring rule 125 disclosure with regard to a treating physician. We answer this question in the negative. A treating physician ordinarily learns facts in a case, and forms mental impressions or opinions, substantially before he or she is retained as an expert witness, and often before the parties themselves anticipate litigation. We believe a treating physician ordinarily focuses, while treating a patient, on purely medical questions rather than on the sorts of partially legal questions (such as causation or percentage of disability) which may become paramount in the context of a lawsuit. In sum, we do not believe that a treating physician's factual knowledge, mental impressions and opinions stand on precisely the same footing, especially in the early stages of litigation, as those of the retained expert contemplated by rule 125. Therefore we believe it would be inappropriate to employ all the disclosure procedures of rule 125, including especially the requirement of the expert's signature, to the factual knowledge, mental impressions and opinions of a treating physician.
We are not unmindful of the concerns raised by the defendants in this case. The absence of interrogatory material could, in certain situations, make it more difficult to depose a treating physician. However, we note that a party remains under a duty to supplement discovery as to experts throughout the pretrial stages of litigation. Iowa R.Civ.P. 125(c). When a treating physician assumes a role in litigation analogous to the role of a retained expert, supplemental discovery under rule 125(c) could become obligatory.
The district court's order requiring discovery of the treating physician under Iowa Rule of Civil Procedure 125 is reversed. The case is remanded to the district *678 court for further proceedings consistent with this opinion.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264756/ | 744 A.2d 1037 (2000)
Allison Marie JUDAH, Appellant,
v.
Burton REINER and Morris Management, Inc., Appellees.
No. 98-CV-92.
District of Columbia Court of Appeals.
Argued January 14, 1999.
Decided February 3, 2000.
*1038 Jonathan Zucker, with whom Patricia Daus and Alan L. Balaran, Washington, DC, were on the brief, for appellant.
Jack D. Lapidus, Washington, DC, with whom John C. Lynch was on the brief, for appellees.
Before TERRY and STEADMAN, Associate Judges, and KING, Senior Judge.
TERRY, Associate Judge.
This personal injury case began with the harassment of two young girls, appellant Allison Judah and her friend Tiara Dews, by two men with pit bull terriers.[1] The two girls sought refuge in the lobby of an apartment building, but were ordered to leave by a man claiming to be the resident manager. When the girls left the building, the men continued their assault, and Allison Judah was bitten by one of the dogs.
Ms. Judah filed suit against the owner of the building (Burton Reiner), the management company (Morris Management, Inc.), and the man who claimed to be the resident manager (initially identified as "John Doe"), alleging two counts of assault, one count of battery, and one count of negligence. In the first count, Judah claimed that the purported resident manager intentionally placed her in fear that he would inflict imminent bodily harm upon her if she did not leave the building. Counts two and three were based on the theory that the resident manager intentionally caused Judah to leave the building when he knew with substantial certainty that making her leave would cause her to fear that the men and the dogs would inflict imminent bodily harm upon her. In count four, Judah alleged that the resident manager breached his duty to refrain from evicting her when he reasonably should have known that making her leave would expose her to a substantial risk of serious bodily injury. Ms. Judah also maintained that Reiner and Morris Management ("Morris") were vicariously liable for the actions of the man who claimed to be the resident manager.
The trial court dismissed the second and third counts of Judah's complaint for failure to state a claim upon which relief could be granted, on the ground that the purported resident manager could not be held liable for assault and battery based on Judah's exposure to harm from the two men and their dogs. Following discovery, the court granted appellees' motion for summary judgment on the remaining assault count and the negligence count. Judah challenges both of these rulings on appeal. We hold that summary judgment in appellees' favor was warranted on all four counts, because Judah failed to proffer sufficient facts to establish the existence of an agency relationship and because she never named the man who actually evicted her as a defendant.
I
A. Factual Background
On the evening of February 19, 1996, while walking home after working on a *1039 school project, Allison Judah and Tiara Dews encountered two men, each of whom had a pit bull terrier on a leash. The men began harassing the girls and pursued them for several blocks. Attempting to escape, the girls ran into the lobby of an apartment building at 1428 Euclid Street, N.W. One of the men followed the girls into the lobby, while the other remained outside. The resultant commotion drew the attention of a man living in the first apartment on the ground floor. This man, later identified as William Ragsdale, came out of his apartment and declared, "I am the manager. You are making too much noise. You have to get out." Judah and Dews informed him that they were being chased by two men with dogs and pleaded for his assistance. Ragsdale responded by raising his voice and stating, "You can leave from the front, you can leave from the back, but you have to get out."
After further protests were unavailing, Judah and Dews finally complied with his demand, leaving through a back door into an alley connected to the street. Almost immediately, they were intercepted by the two men, who used their pit bulls to corner the girls at the bottom of a stairwell. The men then ordered Judah and Dews to remove their clothing. When the girls refused, one of the men released his dog, ordering it to attack.[2] The dog bit Ms. Judah severely on the lower leg.[3] One of the two men then pried the animal's mouth open, and the girls managed to escape by climbing over a fence at the end of the alley. Judah was bitten again by one of the dogs, this time on the foot, as she was climbing the fence. Once over the fence, the girls ran to a nearby bus stop, where some Howard University students came to their aid and summoned an ambulance.
B. The Trial Court's Rulings
The trial court dismissed counts two and three of the complaint on the ground that Ms. Judah had failed to allege that William Ragsdale was the source of the apprehended harm. Later, after the completion of discovery, the court granted appellees' motion for summary judgment on the two remaining counts, ruling that Reiner and Morris could not be held vicariously liable for the acts of William Ragsdale. The court ruled that there was insufficient evidence of an employment relationship between Morris and William Ragsdale because there was "no evidence that Morris Management, Inc., recognized William as the resident manager, consented to William acting as the resident manager, or knew that he held himself out to be the resident manager." Additionally, the court held that even if an employment relationship existed, acting as a security guard or evicting trespassers was outside the scope of that employment.[4] Ms. Judah challenges all of these rulings on appeal.
II
A. Respondeat Superior
In order to hold Reiner and Morris liable for the acts of William Ragsdale, Judah must first establish the existence of an agency relationship,[5] and then demonstrate *1040 that William Ragsdale acted within the scope of that relationship when he ordered the girls to leave the lobby of the apartment building. See, e.g., Giles v. Shell Oil Corp., 487 A.2d 610, 611 (D.C. 1985). "Generally an agency relationship results when one person authorizes another to act on his behalf subject to his control, and the other consents to do so." Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982) (citations omitted); accord, e.g., Henderson v. Charles E. Smith Management, Inc., 567 A.2d 59, 62 (D.C.1989) (emphasizing consent and control).
Whether an agency relationship exists in a given situation depends on the particular facts of each case. District of Columbia v. Hampton, 666 A.2d 30, 38 (D.C.1995). The factors to be considered include "(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant's conduct, (5) and whether the work is part of the regular business of the employer." LeGrand v. Insurance Co. of North America, 241 A.2d 734, 735 (D.C.1968), cited in Hampton, 666 A.2d at 38; accord, Giles, 487 A.2d at 611; Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860 (D.C.1982). Of these factors, the determinative one is usually "whether the employer has the right to control and direct the servant in the performance of his work and the manner in which the work is to be done." LeGrand, 241 A.2d at 735 (citation omitted); accord, Hampton, 666 A.2d at 38-39; Levy v. Currier, 587 A.2d 205, 209 n. 10 (D.C.1991); Safeway, 448 A.2d at 860; 53 AM. JUR. 2D Master and Servant § 2 (1970). The cases emphasize that the right to control, rather than its actual exercise, is usually dispositive of whether there is an agency relationship. See, e.g., Safeway, 448 A.2d at 860.
In deciding this question, courts will look both to the terms of any contract that may exist and to the actual course of dealings between the parties. See Giles, 487 A.2d at 613 ("the parties' actual relationship, in spite of contractual language, may be the conclusive factor"). "Conduct or words by a person which cause the other reasonably to believe that that person desires him to act on his account and subject to his control are sufficient to establish such authority." Smith, 452 A.2d at 335 (citing RESTATEMENT (SECOND) OF AGENCY § 26 (1957)).
In this case, the burden of establishing the existence of an agency relationship fell upon appellant Judah. Henderson, 567 A.2d at 62; Smith, 452 A.2d at 335. To prevail on their summary judgment motion, however, appellees had the burden of demonstrating the absence of any material issues of fact regarding that relationship. See, e.g., Ferguson v. District of Columbia, 629 A.2d 15, 19 (D.C. 1993); Burch v. Amsterdam Corp., 366 A.2d 1079, 1084 (D.C.1976). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." Super. Ct. Civ. R. 56(c). That test is met here.
We agree with the trial court that the evidence was insufficient to support a finding that appellees Reiner and Morris even knew of, let alone consented to, William Ragsdale's acting as resident manager for the apartment building. At most, the evidence offered in support of the summary judgment motion showed that Morris regularly hired William Ragsdale as an independent contractor to perform various repair and cleaning jobs at five of the properties it managed. It was undisputed that Reiner entered into a contract with Morris Management to manage certain properties that he owned. Morris, in turn, hired Wallace Ragsdale, William's father, to be the resident manager for the building at 1428 Euclid Street.[6] The *1041 terms of the agreement between Morris Management and Wallace Ragsdale were as follows:
AGREEMENT
Effective today, October 17, 1986, Wallace Ragsdale agrees to be resident manager of 1428 Euclid Street, N.W., Washington, D.C.
For his services he will receive a "rent free" apartment (quarters).
As resident manager, Mr. Ragsdale agrees to the following duties:
Cleaning halls on a regular basis
General upkeep of building
Showing vacant apartments
Grounds (grass care, mowing, removal of leaves, snow removal, etc.)
Making sure trash is contained in proper receptacles
Cleaning of apartment when it becomes vacant
Maintaining laundry room (including notification to servicing company when machines break down)
In addition, Mr. Ragsdale will receive every two weeks $250 for cleaning as an independent cleaning contractor. He will be issued a "1099" each year for this service.
It was established by affidavits that at least two years before the incident in question, Wallace Ragsdale had ceased to reside in the apartment at 1428 Euclid; instead, the apartment was occupied by his two sons, William and José. There was some evidence that William and José represented to the tenants of the building that they were the resident managers. Pete Peterson, a resident of the building for more than thirty years, stated in a deposition that "the older gentleman who, at one time, acted as the resident manager has not lived on the premises" for at least two years, but William and José live on the first floor and "represent that they are the resident managers when their father is not there." David Tollar, another longtime resident, said that he had heard William and José tell people "numerous" times that they were the managers of the building. He stated that "on many occasions," when he contacted Jerry Morris, president of Morris Management, about repairs to his apartment, he was told to "go see the boys." Frances Beeks, also a resident, testified that she too had overheard the sons claim to be the managers of the building, that the sons performed repairs there, and that she understood that "Mr. Ragsdale and his two sons share responsibility for the building."
The fact that William and José may have held themselves out to tenants and others as resident managers, however, is not enough to impose respondeat superior liability on Reiner and Morris. In order to demonstrate the existence of an agency relationship, Judah must also show that Reiner and Morris knew of, and consented to, those representations. The evidence presented to the court provides no support for such a finding.
In his deposition testimony, Jerry Morris stated that William and José only did occasional work on a contractual basis, and that he would be "surprised" if they introduced themselves as resident managers. There was substantial evidence to support Mr. Morris' understanding of the relationship between his company and William Ragsdale. For example, the record contains six receipts for services such as cleaning, painting, and minor repair work that William provided to Morris Management. In a Form 1099 (independent contractor's tax return) filed in 1996, William Ragsdale reported $930.00 in non-employee compensation from Morris Management.
At most, this evidence established that Morris Management had an ongoing business relationship with William Ragsdale, whom it hired from time to time as an independent contractor to perform various *1042 jobs at 1428 Euclid Street and elsewhere. None of the evidence relied on by Judah could demonstrate that Morris had any knowledge that William and José held themselves out as managers of the apartment building. Even when the evidence is viewed in the light most favorable to Ms. Judah as the non-moving party, the only proof of Morris' alleged awareness of this fact was (1) evidence that Morris might have known that William resided at 1428 Euclid in the apartment which had been made available to Wallace Ragsdale as partial compensation for his services as resident manager,[7] and (2) evidence that Morris told tenants of 1428 Euclid to "go see the boys," meaning William and José, when their apartments were in need of repairs. It is not surprising that when the tenants contacted Mr. Morris on these occasions, he referred them to someone who lived in their building and thus would be able to provide the needed services expeditiously. But that fact falls far short of establishing that William was anything more than an independent contractor hired by Morris to perform occasional repair work.
Furthermore, the fact that William and José were living in the apartment provided for their father shows only that Wallace Ragsdale chose to give part of the compensation he received for his employment as resident manager to his two sons. Such an arrangement is hardly unusual. Thus, even if Morris knew that William and José lived in Wallace's apartment, it does not necessarily follow that Morris also knew they were holding themselves out as resident managers. There is no evidence that the apartment served as partial compensation for the repair work performed by William, or that Wallace received any additional compensation as a substitute for the apartment after he moved out.
In sum, the information available to Morris was simply not sufficient to put it on notice that William Ragsdale was holding himself out as the resident manager of the apartment building at 1428 Euclid. Without showing, at a minimum, that Morris was aware of this fact, Judah had no way of proving that Morris also consented to the arrangement, and thus no way of establishing the existence of an agency relationship between William Ragsdale and the appellees.
B. The Merits of Judah's Underlying Tort Claims
The theories of liability advanced by Judah, though novel, may not be entirely devoid of merit.[8] However, because William Ragsdale has never been made a party to this lawsuit, our disposition of the respondeat superior issue makes it unnecessary for us to address the trial court's alternative bases for its rulings.
In her original complaint, Judah identified the man who evicted her as "John Doe." During discovery it was learned that José and William Ragsdale lived in the apartment provided to Wallace Ragsdale as partial compensation for his services as resident manager. Given this new information, Judah amended her complaint to substitute José Ragsdale for John Doe as the third defendant. It soon became apparent, however, that William, rather than José, was responsible for evicting Judah *1043 and Dews from the lobby of the building; in fact, the undisputed evidence established that José was not even in the building on the date in question and played no role in the incident.[9] Although Judah was well aware of this fact, as shown by her repeated references to William Ragsdale as the man who evicted her in all of her subsequent pleadings and throughout this appeal, she failed to amend her complaint to substitute William for José.[10] William Ragsdale was never named as a defendant in the action, nor was he identified as a party to this appeal.
Thus the only theory upon which Judah can proceed here is that Reiner and Morris are vicariously liable for the acts of William Ragsdale. She has no outstanding claims against William Ragsdale in his individual capacity. Consequently, even if we were to find some or all of the trial court's alternative grounds for rejecting Judah's tort claims erroneous, our holding that Reiner and Morris are not liable for the acts of William Ragsdale would require us to affirm the trial court's decision.
III
There was no evidence before the trial court which would support a finding that William Ragsdale acted as the employee or agent of appellees Reiner and Morris. Without evidence of such a relationship, Judah cannot prevail on any of her claims. We therefore affirm the trial court's grant of summary judgment on counts one and four of the complaint. We further hold that our resolution of this question necessarily disposes of the assault and battery claims contained in counts two and three as well. Although the trial court dismissed those counts for failure to state a claim upon which the alleged resident manager could be found liable, we affirm on the alternative ground that summary judgment in favor of appellees Reiner and Morris was required because of the total lack of proof of an agency relationship.
Affirmed.
NOTES
[1] Allison Judah was twelve years old at the time of the incident; Tiara Dews was thirteen.
[2] Anthony Fuller, one of the men with the dogs, pleaded guilty to a charge of assault with a dangerous weapon in connection with this incident. United States v. Fuller, D.C.Super. Ct. No. 96-CF-1919.
[3] Ms. Judah was hospitalized for four days following the attack, missed several weeks of school, and had to get multiple rabies shots.
[4] The court gave several additional reasons for entering summary judgment in favor of appellees, but our holding on the respondeat superior issue makes it unnecessary for us to address any of these alternative grounds.
[5] Various labels have been used to describe this type of relationship, including principal-agent, master-servant, and employer-employee. For the purposes of this appeal, these terms are indistinguishable. The question is simply whether, under the doctrine of respondeat superior, the principal/master/employer should be held vicariously liable for the acts or omissions of the agent/servant/employee. Whichever label is used, our analysis remains the same. See, e.g., District of Columbia v. Hampton, 666 A.2d 30 (D.C.1995) (using the terms principal-agent and master-servant interchangeably).
[6] Reiner asserted that he was not involved in the selection of Wallace Ragsdale as resident manager, and that he provided no guidance or supervision with respect to the work performed by either Morris Management or the resident manager.
[7] In addition to the fact that Morris instructed tenants of 1428 Euclid to "go see the boys" when they needed repairs, William listed his address as 1428 Euclid Street, N.W., Apartment 106, on both the tax document and the work receipts.
[8] For example, the trial court's ruling that the men with dogs could not be the source of harm in a claim against the resident manager is contrary to the view of the Restatement, which takes the position that liability may be imposed in such circumstances so long as the actor is aware that harmful contact with a third person will result. See RESTATEMENT (SECOND) OF TORTS § 25 (1965). It is not essential that the plaintiff be put in apprehension of a contact inflicted by the actor. Rather, there may be liability if "the apprehension is aroused that a third person is about to inflict the contact, or even that it is about to be inflicted by some force of nature." Id., comment a.
[9] The trial court dismissed Judah's claims against José Ragsdale because there was no allegation that he was even present during the events at issue.
[10] In her brief, Judah admits that she mistakenly named José instead of William Ragsdale. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264762/ | 14 Cal.App.4th 837 (1993)
17 Cal. Rptr.2d 755
THE PEOPLE, Plaintiff and Respondent,
v.
VICTOR ANTHONY VALENZUELA, Defendant and Appellant.
Docket No. B065808.
Court of Appeals of California, Second District, Division Five.
March 26, 1993.
*838 COUNSEL
Kim James Kakadelas, 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, Linda C. Johnson and Arthur H. Auerbach, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
TURNER, P.J
Victor Anthony Valenzuela appeals from the judgment entered following his negotiated pleas of guilty to second degree robbery *839 (Pen. Code, § 211)[1] and grand theft of a motor vehicle (§ 487h, subd. (a)) and admissions that he used a knife in the commission of both crimes. (§ 12022, subd. (b).) He contends: "I. The trial court should have dismissed the Penal Code section 487h(a) count as a lesser included offense of the Penal Code section 211[.] [¶] II. Appellant maintains that a sufficient Penal Code section 654 challenge or claim was made at the time of the plea so as to vitiate the effects of rule 412 of the Rules of Court[.] [¶] III. The plea bargain, in part, was improper in that it resulted in no reciprocal benefit to appellant[.]"
The preliminary hearing transcript reflects that at approximately 5:55 p.m. on June 24, 1991, Arnold Osuna, the codefendant, entered a Domino's Pizza restaurant in Los Angeles and spoke with the manager about using the restroom. While they conversed, Sara Ayala, who worked at the restaurant, took four pizzas to her automobile for delivery. Ms. Ayala entered the car and put the pizzas and her purse on the passenger seat. The purse contained $200 and Ms. Ayala had also placed some money from tips in the ash tray of the automobile. Before she could close the door, defendant began pulling and pushing her around. He ordered her to give him the key and everything she had and poked her arm with a knife, scratching her and causing her arm to bleed. Ms. Ayala threw the keys at defendant and fled from the automobile. Defendant entered the car, opened the door on the passenger side for Mr. Osuna, then drove off. The purse was returned to Ms. Ayala the next day. It contained all her documents, but her money was missing. She was also taken to her automobile and found that the antenna and the right mirror had been broken.
Mr. Osuna and defendant pled guilty at the same hearing. The court indicated that, as to defendant, it would approve a plea agreement calling for a prison term of four years and, as to Mr. Osuna, a prison term of seven years. The court next asked whether the People wanted a plea to both counts. When the prosecutor answered in the affirmative, the court asked defendant and Mr. Osuna whether that was their understanding. Both replied, "Yes," and both defense counsel indicated that was their understanding, as well.
Mr. Osuna's counsel then stated, "The only thing I would ask, your Honor, if we can just take a plea to count I [the robbery count]." The court responded: "People want a plea to both counts. They are recommending something higher than I am going to give, so I cannot if they want a plea on both counts I have to take a plea on both counts." Mr. Osuna's counsel said, "All right." The court again questioned defendant and Mr. Osuna to ascertain that they understood they were pleading to both counts. The court *840 also verified that the two understood that they were giving up certain constitutional rights by pleading guilty.
At sentencing, the court indicated that it had read and considered the probation report, which reflected that defendant had a lengthy history of criminal offenses. The report listed six aggravating factors and no mitigating factors and recommended imposition of the upper term. The court imposed the bargained-for sentence of four years, consisting of the middle term of three years for robbery and a one-year enhancement for use of a knife. The court also imposed a three-year term for grand theft of a motor vehicle, with a one-year knife-use enhancement, to run concurrently. Defense counsel questioned the sentence, indicating he was not present at the taking of the plea but believed the robbery "was of the car so I was thinking maybe count II [grand theft of a motor vehicle] should be stayed under 654 as opposed to run concurrent, but I don't know what the factual basis of the plea was." The court responded that it could not remember either, but "it is a no harm, no foul, isn't it?" Defense counsel responded, "Basically true...." Defendant did not seek the issuance of a certificate of probable cause pursuant to section 1237.5, subdivision (b).
(1) The related contentions that, because grand theft of an automobile is a lesser included offense of robbery, the court should have dismissed the less serious count and the plea bargain was improper to the extent it resulted in no reciprocal benefit to defendant may not be raised on appeal because defendant pled guilty and failed to secure a certificate of probable cause pursuant to section 1237.5. (People v. Ribero (1971) 4 Cal.3d 55, 63-64 [92 Cal. Rptr. 692, 480 P.2d 308] [certificate of probable cause requirement applies when a defendant is challenging the validity of a plea and events occurring prior to the time of the admission]; People v. Guzman (1991) 226 Cal. App.3d 1060, 1065 [277 Cal. Rptr. 286] [cannot challenge defense counsel's effectiveness prior to a plea without compliance with section 1237.5]; People v. McNight (1985) 171 Cal. App.3d 620, 624 [217 Cal. Rptr. 393] [defendant's claims concerning the sentence really went to the heart of the plea agreement and it was essential to obtain a certificate of probable cause]; People v. Arwood (1985) 165 Cal. App.3d 167, 172 [211 Cal. Rptr. 307] [cannot challenge whether admitted felony was within the scope of section 667 without complying with section 1237.5]; People v. Sabados (1984) 160 Cal. App.3d 691, 695-696 [206 Cal. Rptr. 799] [failure to secure a certificate of probable cause precluded argument that sentence was disproportionate]; People v. LaJocies (1981) 119 Cal. App.3d 947, 957 [174 Cal. Rptr. 100] [a guilty plea bars attack on prior conviction]; People v. Pinon (1979) 96 Cal. App.3d 904, 910 [158 Cal. Rptr. 425] [guilty plea precludes raising issue of factual basis of plea on appeal].) Accordingly, questions concerning lesser *841 included offenses and the absence of any reciprocal benefit to defendant are not properly before this court.
(2) The contention that the concurrent terms and enhancements violated the section 654 likewise may not be raised on direct appeal. The Attorney General is correct that defendant is precluded from raising any issue concerning section 654 because that question was not raised at the time the trial court set forth the plea agreement. Rule 412(b) of the California Rules of Court states: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of a sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." In the present case, defense counsel never raised the double punishment issue when defendant entered his plea. Accordingly, any issue concerning section 654 has been waived.
The judgment is affirmed.
Grignon, J., and Armstrong, J., concurred.
NOTES
[1] All future statutory references are to the Penal Code. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264818/ | 879 F.Supp. 28 (1995)
Richard LOWE
v.
VOLKSWAGEN OF AMERICA, INC.
No. 94-4404.
United States District Court, E.D. Pennsylvania.
March 14, 1995.
*29 Craig Thor Kimmel, Kimmel & Silverman, P.C., Blue Bell, PA, for plaintiff.
Raymond T. Le Bon, White and Williams, Raymond A. Swan, Philadelphia, PA, for defendant.
ORDER
DITTER, District Judge.
AND NOW, this 14th day of March, 1995, defendant's motion for summary judgment is GRANTED with respect to count III but DENIED with respect to all other counts.
In connection with this order I make the following findings:
1. Plaintiff has filed a four-count complaint: count I alleges a violation of The Pennsylvania Automobile Lemon Law, 73 P.S. § 1951 et seq.; count II alleges a violation of The Magnuson-Moss Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq.; count III alleges a violation of The Pennsylvania Uniform Commercial Code, 13 P.C.S. § 1101 et seq. (the UCC); and, count IV alleges a violation of The Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. Jurisdiction is based on diversity of citizenship.
2. Defendant has moved for summary judgment on all counts. It argues that the claims are untimely.
3. On November 30, 1989, plaintiff purchased a 1990 Volkswagen Jetta from Potamkin Springfield. The car came with a limited warranty. As stated in his deposition, by December 27, 1989, plaintiff was aware that his VW was having some engine and starting problems, and the car had already undergone three attempted repairs for assorted problems.[1] He filed the instant lawsuit on July 20, 1994 over four years after purchasing the car and discovering that it had problems.
4. A claim for breach of an implied and an express warranty under the UCC must be brought within four years from the date that the cause of action accrues. 13 Pa.C.S.A. § 2725(a). In this case, the vehicle was covered by both the implied warranty of merchantability that is presumed in most sale-of-goods cases and by an express warranty the limited written warranty that came with the car. The cause of action for breach of the express warranty accrued when *30 the breach was, or should have been discovered. Nationwide Ins. v. General Motors, 533 Pa. 423, 625 A.2d 1172 (1993). The cause of action for breach of the implied warranty accrued at the time that the vehicle was delivered. Id.
5. In view of the fact that by December 27, 1989, plaintiff was aware of his car's problems and that it had already undergone three attempted repairs, the cause of action for breach of the express warranty accrued on that date. Additionally, the cause of action for breach of the implied warranty accrued at the time of tender November 30, 1989. From this, it is clear that the cause of action for breach of both the implied and the express warranties accrued more than four years before plaintiff commenced this action and, therefore, count III, the UCC count, is time barred.
6. The Lemon Law does not contain an express limitations period. In addition, there has been no reported Pennsylvania case directly addressing the issue. Defendant argues, however, that a four year period ought to apply because the UCC, which itself has a four year period, is the closest statutory authority. To support its argument, defendant cites a footnote from a decision by the Pennsylvania Superior Court in which Judge Cercone found that because the remedy in Lemon Law cases is "analogous to an action for revocation of acceptance under section 2608 of the Uniform Commercial Code, the four year limitations period of the uniform Commercial Code is applicable." Gabriel v. O'Hara, 368 Pa.Super. 383, 534 A.2d 488, n. 20 (1987).
7. Plaintiff, on the other hand, asserts: a Lemon Law violation is a per se Unfair Trade Law violation; Gabriel v. O'Hara stands for the proposition that all claims falling under the Unfair Trade Law are governed by a six year limitations period; therefore, all Lemon Law claims are governed by a six year limitations period.
8. I disagree with plaintiff and conclude that because the Lemon Law is essentially a statutory warranty, a four-year period applies. Nonetheless, summary judgment is inappropriate on count I because under Pennsylvania law, a cause of action does not accrue until a plaintiff could have first maintained his action. A Lemon Law claim cannot be maintained until after there have been a "reasonable number of repair attempts." A genuine issue of material fact exists as to when there had been a reasonable number of repair attempts.
9. Although the Lemon Law provides that "It shall be presumed that a reasonable number of attempts have been undertaken to repair or correct a nonconformity if ... the same nonconformity has been subject to repair three times", 73 P.S. § 1956, this is a rebuttable presumption not a legal conclusion. Moreover, in the instant case, the record is unclear about when plaintiff brought his car in for the third attempted repair of the engine and starting problems. This uncertainty raises a genuine issue of a material fact. Summary judgment is, therefore, not appropriate on count I.
10. Like the Pennsylvania Lemon Law, the Magnuson-Moss Act does not contain an express limitations period. However, where a federal statute does not contain an express limitations period, federal courts apply the most analogous state statute of limitation. The Magnuson-Moss Act establishes certain rules for warranties of consumer products. Thus, as with the Lemon Law, I find that the Magnuson-Moss Act is most closely analogous to the UCC and, therefore, a four year limitations period applies to it.
11. Although never explicitly stated by either party, it appears that plaintiff is proceeding under section 2304(a)(4) of the Magnuson-Moss Act. This provision echoes the Lemon Law in that a seller must replace or refund the purchase price of the good (in this case a car) after he makes a reasonable number of failed attempts to remedy the defects. As with the Lemon Law claim, a genuine issue as to the material fact of when there had been a "reasonable number of attempts" precludes summary judgment on count II.
12. Actions arising under the Unfair Trade Law may be brought within six years of when the cause of action accrues. Gabriel v. O'Hara, 534 A.2d at 493. Summary *31 judgment is precluded on the Unfair Trade Law claim because this action was started within six years from the date of its accrual.
NOTES
[1] Defendant argues that although the complaint alleges that the car suffered from a variety of ailments, plaintiff now only pursues the engine and starting problems. Plaintiff has not countered defendant's contention. Therefore, I only consider the engine and starting problems as potential bases for liability. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264565/ | 14 Cal.App.4th 1331 (1993)
18 Cal. Rptr.2d 478
CITY OF BERKELEY, Plaintiff, Cross-defendant, and Respondent,
v.
MOSHE E. CUKIERMAN, Defendant, Cross-complainant, and Appellant.
Docket No. A055203.
Court of Appeals of California, First District, Division Four.
March 29, 1993.
*1335 COUNSEL
David A. Self and Andrew S. Cohn for Defendant, Cross-complainant, and Appellant.
Manuela Albuquerque, City Attorney, and Thomas B. Brown, Deputy City Attorney, for Plaintiff, Cross-defendant, and Respondent.
OPINION
ANDERSON, P.J.
Defendant and cross-complainant Moshe E. Cukierman (appellant) appeals from the trial court's judgment awarding relief to plaintiff and cross-defendant City of Berkeley (City or respondent) in an action brought to collect unpaid taxes under the Berkeley Business License Tax Ordinance.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Regulatory Scheme
In 1977 the City enacted a Business License Tax Ordinance (Ordinance) which requires that certain businesses (including hotels) pay annual business license taxes. The Ordinance, periodically amended since 1977 to reflect *1336 increases in the tax rates, is contained in the Berkeley Municipal Code,[1] section 9.04.005 et seq. Under the Ordinance, the business license tax is computed based upon the gross receipts of the business, multiplied by a tax factor which varies depending on the type, nature and projected profitability of the targeted business activity. A failure to pay the business license tax in a timely fashion gives rise to imposition of penalties and interest in addition to the tax itself. (§§ 9.04.110, 9.04.120.)
In addition to taxing numerous other business activities, the Ordinance imposes an annual license tax on rental of real estate. While section 9.04.195, subdivision A, levies a business license tax on landlords (i.e., lessors of buildings or other real property),[2] section 9.04.195, subdivision B, explicitly extends this tax burden to providers of lodgings for five or more persons. (See discussion, infra.)
When the Ordinance was enacted in 1977, under section 9.04.195 the taxpayers were taxed at a rate of $1.05 per $1,000 in gross receipts. (§ 9.04.240.) However, following the adoption of Proposition 13 which substantially reduced receipts from property taxes, the City was compelled to obtain the lost revenues from other sources. Several revenue-enhancing proposals were submitted to the City for consideration. The Council Revenue Committee (Revenue Committee) suggested a ninefold increase of tax rates applicable to rental business in general, focussing on the need to raise revenues to offset the loss resulting from the adoption of Proposition 13. Council member Denton, in turn, recommended a tenfold increase in the tax rates limited only to the landlords with the objective to recoup the "windfall" bestowed upon the landlords by Proposition 13. The city council rejected the proposal of both the Revenue Committee and Denton and adopted, instead, a sixfold increase for all rental businesses taxed under section 9.04.195. In so doing, the City emphasized that the revenue increase was necessary to overcome the detrimental effect of Proposition 13 on the city's finances.
The business license tax rates specified in section 9.04.240 have been periodically amended since 1977. The current rate on rental businesses under section 9.04.195 is $10.81/$1,000 in gross receipts.
*1337 B. Operative Facts
Appellant operates the Shattuck Hotel at 2086 Allston Way in downtown Berkeley. He was (and is) the operator of the hotel. For the tax year of 1989 appellant had gross receipts in the sum of $2,097,253 whereas the total sum of gross receipts for the tax year of 1990 was $2,762,062.20. In both these years the gross receipts derived from the following activities: providing sleeping rooms to guests on a short-term basis; providing sleeping rooms to guests under special contractual arrangements; receipts from room rental for meetings, seminars, training, conferences, etc.; receipts from operation of the Sedona Restaurant within the hotel; receipts from providing food and beverage for meetings, seminars conferences and hotel guests (i.e., continental breakfast, etc.); receipts from telephone charges to the hotel guests; and receipts from miscellaneous services such as laundry, crib rentals, dry cleaning, fax, shoeshine, etc., provided to overnight hotel guests. At the applicable rate of $10.81 per $1,000 in gross receipts, appellant's tax liability for the tax years of 1989-1990 (including penalties, interest and the amounts already paid) totalled $84,501.63.
C. Procedural History
The present action was initiated by the City by filing a complaint to collect unpaid business license taxes. Appellant filed a cross-complaint for declaratory relief alleging, inter alia, that the Shattuck Hotel was incorrectly classified under the Ordinance or, in the alternative, that the Ordinance violated the equal protection clause of the Constitution. The parties filed cross-pleadings. Appellant sought judgment on the pleadings on the City's complaint, while the City demurred to appellant's first amended cross-complaint. After taking judicial notice of the Ordinance and the legislative history thereof, the trial court sustained the City's demurrer and denied appellant's motion for judgment on the pleadings.
The case proceeded to trial on the remaining issue of whether all the receipts derived from the hotel's activity should be taxed at the same rate in view of section 9.04.195, subdivision D, which provides that the lessor may not combine income derived from real property rental with receipts coming from other business activities. Based upon the stipulated facts, the trial court concluded that all receipts of the Shattuck Hotel should be taxed at the rate set out in section 9.04.240 because the ancillary activities relied on by appellant (i.e., providing food and beverage service, telephone, meeting rooms, etc.) constituted an integral part of the hotel's business. In accordance therewith, the trial court entered judgment for the City in the sum of $84,501.63, plus costs.
*1338 II. DISCUSSION
On appeal appellant contends that the decision of the trial court is erroneous and should be reversed for three fundamental reasons: (1) the legislative history of the Ordinance suggests that the City intended to raise business license taxes only as to owners who rent real property, not as to mere lessees, such as appellant; (2) if the Ordinance is to be interpreted so as to sustain the higher taxation of nonowner tenants of hotels, it violates the equal protection clause of the Constitution because no rational basis exists to justify the discriminatory tax burden imposed on appellant; and (3) even if the Ordinance meets the constitutional standards, the judgment below still should be modified because certain income items received by appellant derived from activities other than hotel rental and, hence, should have been separated and taxed at a lower rate in accordance with section 9.04.195, subdivision D. We disagree with appellant on all three issues and affirm the judgment.
A. The Ordinance Is Applicable to Operators of Hotels Providing Lodging for Guests
Section 9.04.195, subdivision B, provides that "Every person engaged in the business of providing lodging for five or more persons, for direct or indirect compensation, shall pay an annual license fee as provided in Section 9.04.240 of this chapter for each thousand dollars of gross receipts." (Italics added.)
(1a) Despite the plain language of the Ordinance and the undisputed facts showing that appellant as hotel operator is in the business of providing lodging for guests for compensation, appellant argues that he does not fall within section 9.04.195, subdivision B. Appellant's argument rests on the following logic: (1) the Ordinance is ambiguous in several respects; (2) under settled law these ambiguities must be resolved so as to give effect to the intent of the Legislature (i.e., City) (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247 [104 Cal. Rptr. 761, 502 P.2d 1049]; Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal. App.3d 605) [200 Cal. Rptr. 575]); and (3) the legislative intent gathered from extrinsic evidence (especially the history of adoption of the Ordinance) demonstrates that the City intended to tax only the rental of real property by owners who profited from Proposition 13, not the lessees of such property. Appellant's argument is supported by neither the law nor the facts.
The rules of statutory construction are well established. (2) In interpreting a statute, the court should ascertain the intent of the Legislature so as *1339 to effect the purpose of the law. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal. Rptr. 144, 514 P.2d 1224].) In determining the legislative intent the court first turns to the language of the enactment. (Burnsed v. State Bd. of Control (1987) 189 Cal. App.3d 213, 217 [234 Cal. Rptr. 316].) Words in the statute must be given their ordinary meaning. (Johnston v. Department of Personnel Administration (1987) 191 Cal. App.3d 1218, 1223 [236 Cal. Rptr. 853].) If the statutory language is clear and unambiguous, there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (i.e., extrinsic evidence). (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d 299]; City of Los Angeles v. Wilshire Crest Medical Group (1980) 113 Cal. App.3d 887, 891 [170 Cal. Rptr. 325].) This is so because the statutory language expresses the intention of the Legislature and where it is free from doubt and ambiguity, it must be followed even if it may appear from other sources that the Legislature had a different object in mind. (Guelfi v. Marin County Employees' Retirement Assn. (1983) 145 Cal. App.3d 297, 307 [193 Cal. Rptr. 343].)
(1b) The case herein falls squarely within the above stated principles. The disputed language of the Ordinance sets out clearly and without equivocation that every person (without qualification) who, as a part of his business, provides lodging for the number of people defined in the Ordinance and receives direct or indirect compensation for such service must pay the business license tax as specified in section 9.04.240. (3) It is, of course, settled beyond dispute that if a statute announces a general rule and makes no exception thereto, the court can make none. It is equally recognized that the court may not insert into a statute qualifying provisions not intended by the Legislature, nor may it require the statute to conform to an assumed legislative intent which does not appear from the language of the statute itself. (Bruce v. Gregory (1967) 65 Cal.2d 666, 674 [56 Cal. Rptr. 265, 423 P.2d 193]; Johnston v. Department of Personnel Administration, supra, 191 Cal. App.3d at p. 1223; Burnsed v. State Bd. of Control, supra, 189 Cal. App.3d at p. 217.)
(1c) By stretching imagination, appellant nonetheless contends that the Ordinance is ambiguous in several respects and, hence, subject to interpretation. Thus, it is alleged that: (1) there is ambiguity between the title of section 9.04.195 and subdivision B thereof because while the title ("Rental of Real Property") implies that the section applies to the lessors (i.e., who rent real property), subdivision B purports to regulate the tax obligation of hotel operators (and the like) who are merely lessees (tenants); (2) the term "providing lodging" is also ambiguous because even though lodgers are mere licensees (not tenants) (Edwards v. City of Los Angeles (1941) 48 *1340 Cal. App.2d 62, 67 [119 P.2d 370]), section 9.04.195 deals with rental of real property which presupposes creation of tenancy; and (3) the phrase "providing lodging for direct and indirect compensation" adds to the ambiguity because it implies that subdivision B of the section imposes a tax burden upon both the lessor (landlord) and the lessee (tenant) for the same activity and, thus, results in double taxation. Appellant's contentions are meritless.
(4) First, the law is clear that the title of legislation may not be used to control or enlarge the positive provisions of the statute. (In re Bandmann (1958) 51 Cal.2d 388, 392 [333 P.2d 339]; People v. Nichols (1970) 3 Cal.3d 150, 159 [137 Cal. Rptr. 1, 560 P.2d 1180] [disapproved on other grounds in People v. Henderson (1977) 19 Cal.3d 86, 96 (137 Cal. Rptr. 1, 560 P.2d 1180)].) It has been likewise held that chapter and section headings cannot be resorted to for the purpose of creating ambiguity when none exists. (Sullivan v. Fox (1987) 189 Cal. App.3d 673, 679-680 [235 Cal. Rptr. 5].)
(1d) Appellant's second argument is equally unfounded. Under dictionary definitions "lodging" is "a temporary place to stay" (Webster's Ninth Collegiate Dict. (1987) p. 702); "a temporary place to stay or live" (Random House Dict. (Ballantine ed. 1980) p. 517); "sleeping accommodations; rented rooms" (American Heritage Dict. (2d college ed. 1982) p. 740); and "a place to sleep or live; rented living quarters (Webster's II New Riverside Dict. (Berkeley ed. 1984) p. 411). (5) The case law confirms that lodgers are similar to hotel guests who rent rooms for a temporary stay. (Edwards v. City of Los Angeles, supra, 48 Cal. App.2d at p. 68; see also Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 421 [282 P.2d 890]; Fox v. Windemere Hotel Apart. Co. (1916) 30 Cal. App. 162, 164-165 [157 P. 820].) (1e) Moreover, regardless of the title of the section, subdivision B of section 9.04.195 explicitly states that the provider of lodging is subject to a business license tax irrespective of the nature of the legal relationship between the provider and the guest. Undoubtedly, appellant provides a "temporary place to stay" and "sleeping accommodations" to his guests and, thus ipso facto, is subject to the business license tax provisions of the Ordinance.
Finally, a potential creation of double taxation does not render the Ordinance either ambiguous or illegal. (6) The case law holds only that there be no double taxation of property. The mere fact that the state (or local authority) imposes one excise tax upon one activity does not prevent the state or local authority from imposing another excise tax upon the same privilege for the same period. (Fox etc. Corp. v. City of Bakersfield (1950) 36 Cal.2d 136, 140 [222 P.2d 879].) To put it another way, the constitutional prohibition against double taxation applies only to ad valorem property *1341 taxes, and property tax and excise tax can be imposed simultaneously. (Pesola v. City of Los Angeles (1975) 54 Cal. App.3d 479, 485-486 [126 Cal. Rptr. 580].)
(1f) Appellant's additional contention that the legislative history of the Ordinance compels the conclusion that the City intended to tax only the lessor-owners of rented real property instead of the lessees thereof, is likewise unfounded and must be rejected for at least three elementary reasons.
(7) First, where, as here, the Ordinance is clear and unambiguous, the legislative intent must be determined from the language of the legislation, rather than extrinsic evidence. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735; Guelfi v. Marin County Employees Retirement Assn., supra, 145 Cal. App.3d at p. 307.) (1g) Second, contrary to appellant's contention, the legislative history of the Ordinance shows that the City intended to increase the business license taxes in general in order to obtain new sources of revenues necessitated by revenue losses caused by Proposition 13. (See legislative findings, discussed infra.) Third, while Councilman Denton (and to some extent the Revenue Committee) expressed the view that the revenue increase should be aimed at landlords of real property who profited from Proposition 13, the City rejected these views by adopting section 9.04.195 which raises the business license tax as to both the landlord owners (subd. A) and the providers of lodging such as appellant (subd. B). (8) It is, of course, axiomatic that in order to determine the statutory intent, the court relies on the expression of the intent of the entire legislative body rather than statements made by individual members of the Legislature. (Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d at p. 258; Ballard v. Anderson (1971) 4 Cal.3d 873, 881 [484 P.2d 1345, 42 A.L.R.3d 1392].)
B. The Ordinance Does Not Violate the Equal Protection Clause of the Constitution
(9a) Appellant next argues that even if the disputed section of the Ordinance applies to the hotel operation, it is invalid because it contravenes the equal protection clause of the Constitution inasmuch as the City did not (and could not) have a reasonable basis for taxing lessee hotels at a higher rate than other retail businesses. More accurately, appellant claims that the tax classification in the Ordinance is arbitrary and lacks the requisite rational basis because: (1) the reasons stated by the City for classification are inadequate to justify the imposition of a higher tax on appellant's business; (2) there is no reasonable or substantial difference between appellant's hotel operation and other businesses whose taxes were not raised; and (3) at any *1342 rate, there is no reasonable ground for imposing a sixfold tax raise on appellant's hotel business. The equal protection challenge against the Ordinance is devoid of any merit.
(1) Propriety of Tax Classification
In its demurrer to appellant's first amended cross-complaint, the City alleged that it "amended its business license tax ordinance in 1978 to create a new rate structure in response to Proposition 13. This amendment had two recognized purposes: (1) to offset revenue loss, and (2) to prevent some taxpayers from reaping a windfall under Proposition 13." In addition, the demurrer mentioned that in raising the tax rate, the City took into account similar tax raises by the City of Oakland.
Appellant contends that none of the foregoing reasons provide sufficient basis for the classification and as a consequence, the Ordinance should be held constitutionally infirm. This contention of appellant fails on two principal grounds: (1) regardless of the reasons stated therefor, the tax classification is presumed to be constitutional and must be upheld if any reasonable basis can be conceived in support thereof; and (2) the loss of revenues resulting from the adoption of Proposition 13 provides sufficient justification for raising the business tax rates.
(10) It is well settled that the power of a municipality to classify for the purpose of taxation is very broad. (Henry's Restaurants of Pomona, Inc. v. State Bd. of Equalization (1973) 30 Cal. App.3d 1009, 1016 [106 Cal. Rptr. 867].) Tax classifications carry a presumption of constitutionality which can be overcome only by the most explicit demonstration that the classification is a hostile and oppressive discrimination against particular persons or groups. (R.H. Macy & Co. v. Contra Costa County (1990) 226 Cal. App.3d 352, 362 [276 Cal. Rptr. 530].) The party who challenges the constitutionality of a classification in a tax statute bears a very heavy burden; it must negate any conceivable basis which might support the classification. (Lehnhausen v. Lake Shore Auto Parts Co. (1973) 410 U.S. 356, 364 [35 L.Ed.2d 351, 357-358, 93 S.Ct. 1001]; R.H. Macy & Co. v. Contra Costa County, supra, at p. 362.) The business license tax comports with the equal protection standards if the distinction (classification) rests upon a rational basis. (Park 'N Fly of San Francisco, Inc. v. City of South San Francisco (1987) 188 Cal. App.3d 1201, 1213 [234 Cal. Rptr. 23].) Business taxes are presumed to be rationally based if any conceivable state of facts exists to support them. (City of San Jose v. Donohue (1975) 51 Cal. App.3d 40, 45 [123 Cal. Rptr. 804]; City of Berkeley v. Oakland Raiders (1983) 143 Cal. App.3d 636, 639 [192 Cal. Rptr. 66].) Finally, tax statutes are generally not subjected to close *1343 scrutiny, and distinctions therein can be justified on the basis of administrative convenience and promotion of legitimate state interests. (Cohan v. Alvord (1984) 162 Cal. App.3d 176, 181-182 [208 Cal. Rptr. 421]; Park 'N Fly of San Francisco, Inc. v. City of South San Francisco, supra, 188 Cal. App.3d at p. 1213.)
(9b) In the case herein, the city council as a legislative body made findings that the municipal services provided by Berkeley (including health, police, fire protection, etc.) were injuriously affected by Proposition 13 and that the 1978 amendment of the Ordinance raising business license taxes was necessary to remedy the detrimental effect of Proposition 13.[3] Since the raise of business tax rates is constitutionally justified by the adoption of Proposition 13 alone (Kehrlein v. City of Oakland (1981) 116 Cal. App.3d 332, 335 [172 Cal. Rptr. 111]; Northgate Partnership v. City of Sacramento (1984) 155 Cal. App.3d 65, 71-73) [202 Cal. Rptr. 15], appellant's contention relative to the propriety of the tax classification in the Ordinance automatically fails.
(2) Distinction Between Hotel Operation and Other Businesses
Appellant's next argument that there is no reasonable distinction between hotel operation and other businesses and, therefore, the imposition of a higher business license tax on hotels is impermissibly discriminatory, also finds no support in law. Contrary to appellant's assertion, there are many conceivable states of fact that support the differing classification of hotels and other retail businesses. The distinction between the two is justifiable because the hotels: are in a different trade and conduct their business in a different manner (City of Los Angeles v. Crawshaw Mortgage & Inv. Co. (1975) 51 Cal. App.3d 696, 703 [124 Cal. Rptr. 363]); attract more people than other service oriented businesses (i.e., restaurants) and thereby create a greater municipal burden (Fox etc. Corp. v. City of Bakersfield, supra, 36 Cal.2d at p. 144); pose more significant police and fire protection risks (Associated Home Builders etc. Inc. v. City of Newark (1971) 18 Cal. App.3d 107, 110 [95 Cal. Rptr. 648]); produce greater profits; and are treated differently from other types of businesses under the California health and safety *1344 laws (Health & Saf. Code, §§ 17921, 13220-13223; Erwin v. City of San Diego (1952) 112 Cal. App.2d 213, 216 [246 P.2d 105]). These differing features amply justify a distinct classification of hotels and other types of businesses; as a consequence, the imposition of a higher business license tax on hotels must be upheld against an equal protection challenge. (Ex Parte Lemon (1904) 143 Cal. 558-559, 562 [77 P. 455]; City of Palm Springs v. Burt (1964) 224 Cal. App.2d 122, 125 [36 Cal. Rptr. 422].)
(3) Disparity in Tax Rates
Appellant finally complains that even if the Ordinance passes constitutional muster in other respects, it must fail for excessive disparity of rates (e.g., appellant's hotel operation has been taxed six times higher than other businesses). Appellant's point again misses the mark.
(11a) It is well settled that neither due process nor equal protection imposes a rigid rule of equality in tax legislation. (Henry's Restaurants of Pomona, Inc. v. State Bd. of Equalization, supra, 30 Cal. App.3d at p. 1016.) Consistent therewith, it has been held that "occupations and businesses may be classified and subdivided for purposes of taxation, and it is within the discretion of the Legislature to exact different license taxes from different classes or subclasses of businesses, subject only to the limitations of the state and federal Constitutions in regard to equal protection of the laws. No constitutional rights are violated if the burden of the license tax falls equally upon all members of a class, though other classes have lighter burdens or are wholly exempt, provided that the classification is reasonable, based on substantial differences between the pursuits separately grouped, and is not arbitrary." (Fox etc. Corp. v. City of Bakersfield, supra, 36 Cal.2d at p. 142; Associated Home Builders etc., Inc. v. City of Newark, supra, 18 Cal. App.3d at pp. 109-110; Gutknecht v. City of Sausalito (1974) 43 Cal. App.3d 269, 276 [117 Cal. Rptr. 782]; Times Mirror Co. v. City of Los Angeles (1987) 192 Cal. App.3d 170, 183 [237 Cal. Rptr. 346].)
(9c) It follows that where, as here, the classification itself is reasonable, an ordinance will not be declared unconstitutional simply by reason of disparate tax rates. Thus, the courts repeatedly upheld rate increases and disparities which were much larger than those involved here. For example, in Gutknecht v. City of Sausalito, supra, 43 Cal. App.3d 269 the court upheld a tax rate increase which was 420 times higher than that applicable to other taxpayers. Similarly, in Park 'N Fly of San Francisco, Inc. v. City of South San Francisco, supra, 188 Cal. App.3d 1201, the court approved a 4 percent business license tax (as distinguished from the 1 percent here) by reasoning: "Undebatably, the challenged ordinance resulted in a dramatic increase in its *1345 business license tax rates. But `[s]uch evidence alone of tax increases, even enormous increases, is not evidence of a lack of equal protection.' (National Independent Business Alliance v. City of Beverly Hills [1982] 128 Cal. App.3d [13,] 26-27 [180 Cal. Rptr. 59].) Nor can we find the ordinance discriminatory simply because appellant has thereby been subjected to a more onerous tax burden than other businesses. (Westfield-Palos Verdes Co. v. City of Rancho Palos Verdes (1977) 73 Cal. App.3d 486, 495 [].)" (Park 'N Fly of San Francisco, Inc. v. City of South San Francisco, supra, at pp. 1213-1214.) (11b) Finally, in City of Berkeley v. Oakland Raiders, supra, 143 Cal. App.3d at page 640, where a 10 percent tax on gross receipts was upheld, the appellate court emphasized again that "there is no requirement that the amount of the tax be reasonable merely that it not be confiscatory nor prohibitory."
(9d) Appellant does not contend here that the tax rate at issue was so excessive as to amount to confiscation of his property. Short of such claim, mere disparity in the tax rate does not provide a legitimate reason to overturn the Ordinance on equal protection grounds.
C. A Lower Tax Rate Is Not Justified for Incidental Hotel Activities Under Section 9.04.195, Subdivision D
Section 9.04.195, subdivision D, provides that "A lessor may not combine returns, or include income derived from real property rental with income from other business activities taxed under other provisions of this chapter. A separate license is required for each building or structure or lodging property subject to business license taxation as provided in this section." (Italics added.)
(12a) Based upon the above cited section, appellant argues that even if the Ordinance is held valid, the judgment awarding respondent the sum of $84,501.63 is excessive and ought to be modified because certain revenue items (i.e., providing meeting rooms for seminars, conferences, etc.; sale of food and beverage; telephone charges; and revenues from miscellaneous services such as crib rental, fax, dry cleaning, laundry, shoeshine, etc.) did not derive from hotel rental and, therefore, should have been separated and taxed at a lower rate.[4] Once again, we are compelled to disagree.
A literal reading of section 9.04.195, subdivision D, indicates that income obtained from real property rental cannot be combined with other income for *1346 taxation purposes only when such income derives from other business activities. (13) However, case law firmly holds that when the activities conducted by the taxpayer constitute an integral part of his business, the receipts from such business activities cannot be separated and taxed at a different rate. The cases especially on point are May Dept. Stores Co. v. City of Los Angeles (1988) 204 Cal. App.3d 1368 [251 Cal. Rptr. 873]; ITT Gilfillan, Inc. v. City of Los Angeles (1977) 72 Cal. App.3d 421 [140 Cal. Rptr. 193]; and National Schools v. City of Los Angeles (1955) 135 Cal. App.2d 311 [287 P.2d 151].
In May Dept. Stores the court ruled that the store's gross receipts attributable to its retail sales could not be separated for local business license tax purposes from receipts gained from its credit and finance charges because both types of income derived from one overall business activity. The court noted that even though the Los Angeles tax ordinance permitted taxpayers to be separately taxed for different businesses, the taxpayers were not allowed to so separate an activity which was an integral part of a business function. (May Dept. Stores Co. v. City of Los Angeles, supra, 204 Cal. App.3d at p. 1374.)
In ITT Gilfillan the court again considered the separability of various sources of business receipts for local taxation purposes. In concluding that receipts from one business cannot be taxed separately, the court stated as follows: "True, a taxpayer that engages in more than one business is required to be separately licensed and is separately taxed on each business. (Los Angeles Business Tax Ord., § 21.06; Universal Consolidated Oil Co. v. City of Los Angeles (1962) 202 Cal. App.2d 771, 778-780 [].) That proposition, however, does not answer the key issue here involved. The question is not whether the city can properly tax at different rates separate businesses conducted by a taxpayer, but whether the taxpayers here were conducting more than one business. An activity which is `an integral part' of a business function cannot be carved out for separate taxation by the ordinance. [Citation.] The ordinance taxes by classifications of business and not by classification of various activities which may form part of a business. [Citation.]" (ITT Gilfillan, Inc. v. City of Los Angeles, supra, 72 Cal. App.3d at p. 429, italics added.)
In National Schools the taxpayer was a correspondence trade school that operated a student store which, although open to the public, primarily served the students of the school. The taxpayer claimed that the receipts from its student store should be segregated and taxed not at the higher rate applicable to its tuition receipts, but rather at a lower rate applicable to other retail stores. The court rejected the school's argument and held that the store was *1347 an integral part of the school and, thus, all its gross receipts were subject to the higher tax rate because the store: (1) was only a department of the school business; (2) was physically located within the school's principal place of business; (3) was not advertised in any manner to inform the general public of its existence; and (4) was patronized principally by its students. (National Schools v. City of Los Angeles, supra, 135 Cal. App.2d at pp. 326-327.)
(12b) Appellant's hotel operation falls squarely within these cases. The evidence introduced in the lower court convincingly demonstrates that the sale of food and beverage and the other services in dispute were provided only for the hotel guests; were parts of a first class comprehensive hotel operation; and constituted an integral part of appellant's hotel business. Since "an activity which is an `integral part' of a business function cannot be carved out for separate taxation by the ordinance" (ITT Gilfillan, Inc. v. City of Los Angeles, supra, 72 Cal. App.3d at p. 429; National Schools v. City of Los Angeles, supra 132 Cal. App.2d at pp. 326-327), appellant's reliance on section 9.04.195, subdivision D, is misplaced and his request to tax certain gross receipts stemming from his hotel operation at a lower rate must be rejected.
The judgment is affirmed.
Perley, J., and Reardon, J., concurred.
NOTES
[1] Unless otherwise indicated, all section references are to the Berkeley Municipal Code.
[2] Entitled "Rental of Real Property," section 9.04.195 provides in pertinent part: "A Every person engaged in the business of renting or letting a building structure, or other property or a portion of such building, structure, or property within the city for any purpose, except property designated for and used exclusively for residential use which contains fewer than three dwelling units, shall pay an annual license fee as provided in Section 9.04.240 of this chapter for each thousand dollars of gross receipts." (Italics added.)
[3] The findings of the city council read in pertinent part as follows: "Section 3. This Council finds and determines the public peace, health and safety are endangered by the detrimental fiscal impact of Proposition 13 (also known as the Jarvis-Gann Initiative) and the associated inability of the City of Berkeley to provide adequate municipal public health, recreation, traffic control, police, fire suppression and prevention, sanitary sewer, refuse collection services, as well as other municipal services normally provided and expected by citizens of the City of Berkeley. [¶] This Council further finds and determines that the municipal services detrimentally affected by Proposition 13 must continue unabated and in order to continue such services it is necessary to provide for new sources of municipal revenue as well as careful scrutiny and expenditure of remaining discretionary municipal revenue and that such new sources of revenue can be obtained through the immediate enactment of measures which are designed to remedy in part the detrimental effect of Proposition 13...." (Italics added.)
[4] It is alleged that if the receipts from meeting rooms, sale of food and beverage, telephone charges and miscellaneous items are to be taxed at the lower rate set for retail businesses, appellants' total tax liability (including interest and penalties) cannot exceed $57,970.25. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264571/ | 879 F.Supp. 372 (1995)
The NATIONAL TITANIUM DIOXIDE CO., LTD., Plaintiff,
v.
VELCO ENTERPRISES, LTD., Defendant.
No. 94 Civ. 5857 (PKL).
United States District Court, S.D. New York.
March 17, 1995.
*373 Michael E. Schoeman, Schoeman, Marsh & Updike, New York City, for defendant.
Richard H. Webber, Hill Rivkins Loesberg O'Brien Mulroy & Hayden, New York City, for plaintiff.
MEMORANDUM ORDER
LEISURE, District Judge:
This is an action brought by National Titanium Dioxide Co., Ltd. ("Cristal") against Velco Enterprises, Ltd. ("Velco") seeking to recover the price of fifteen alleged sales of titanium dioxide by Cristal to Velco. Defendant now moves to compel arbitration and to stay the present action. Defendant argues that the underlying action brought by plaintiff is subject to mandatory arbitration, pursuant to a written agreement between Velco and Cristal. Plaintiff maintains that the dispute over payment for the fifteen sales of titanium dioxide does not fall within the scope of mandatory arbitration. For the reasons stated below, defendant's motion is granted in its entirety.
BACKGROUND
Velco is a Connecticut corporation with its principal place of business in New York. Cristal is a Saudi Arabian corporation with its principal place of business in Saudi Arabia. Cristal seeks to recover payment for fifteen separate sales of titanium dioxide, allegedly sold and delivered by Cristal to Velco between September 23, 1992 and October 19, 1993.
On or about December 1, 1992, Velco and Cristal executed an Agency Agreement ("the Agreement") which provided for the sale of titanium dioxide by Cristal to Velco. According to Michel Goldschneider ("Goldschneider"), president of Velco, all of the alleged sales were intended to be made pursuant to the Agreement. Memorandum of Law in Support of Motion For a Stay Pending Arbitration ("Def. Mem."), at 2; see also Reply Affidavit of Michel Goldschneider ("Goldschneider Aff."), ¶ 12. The terms of the Agreement included an arbitration clause which stated that:
*374 [a]ny disputes arising out of this Agreement ... shall be referred to arbitration under the rules of the International Chamber of Commerce (ICC), Paris or the rules of the Euro Arab arbitration system as elected solely by the party that is the claimant in the dispute. In either case, the place of arbitration shall be London, the language and the governing law, English.
Def. Mem. at Ex. A, ¶ 18.
The Agreement was later modified, by agreement of Velco and Cristal, to reflect a distributorship agreement rather than an agency agreement. The amendments, which were enumerated in a letter, dated December 30, 1992, stated that certain clauses, section 3, entitled "Sales of Products," section 5, entitled "Direct Sales" and section 7, entitled "Execution of Orders," would no longer "be of [] relevance." Def.Mem. at Ex. A.
In addition, the first two sales of titanium dioxide disputed herein, which were shipped on October 31, 1992 and December 2, 1992, respectively, appear to predate the Agreement. Goldschneider, however, states that these two sales were intended to be covered by the Agreement. Goldschneider Aff., ¶ 5. Finally, the Agreement contains a schedule limiting Velco's distribution territory to Hungary and the Ukraine. Section 4 of the Agreement, however, allows the distributor, Velco, to expand its territory by obtaining Cristal's prior written consent. In all fifteen of the disputed sales, Velco maintains that Cristal granted such prior written consent, which allowed Velco to distribute the titanium dioxide purchased from Cristal in areas outside Hungary and the Ukraine.
DISCUSSION
Defendant contends that plaintiff should be compelled to enter arbitration. Defendant bases its application on the language in the Agreement entered into between the parties, which states that if a dispute arises under the Agreement, "such dispute shall be referred to arbitration." Def.Mem. at Ex. A, ¶ 18. Plaintiff opposes defendant's motion on the grounds that the Agreement's arbitration clause does not encompass the disputed payments for the fifteen sales of titanium dioxide at issue.
The Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et. seq., "reflect[s] Congress' recognition that arbitration is to be encouraged as a means of reducing the costs and delays associated with litigation." Deloitte Noraudit A/S v. Deloitte Haskins & Sells, 9 F.3d 1060, 1063 (2d Cir.1993). The FAA is a statement of the "`liberal federal policy favoring arbitration agreements....'" Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983)). Section 3 of the FAA provides that courts "upon being satisfied that the issue involved in [a] suit or proceeding is referable to arbitration under [] an agreement, shall ... stay the trial of the action...." 9 U.S.C. § 3 (1988) (emphasis added).
Thus, once a court has determined that an arbitration agreement exists, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration...." Moses H. Cone Memorial Hosp., 460 U.S. at 24-25, 103 S.Ct. at 941; see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985). In fact, "`[t]he existence of an arbitration clause in [an agreement] raises a presumption of arbitrability that can be overcome only if "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute."'" Chiarella v. Vetta Sports, Inc., 1994 WL 557114, at *3 (S.D.N.Y. Oct. 7, 1994) (Leisure, J.) (quoting Associated Brick Mason Contractors, Inc. v. Harrington, 820 F.2d 31, 35 (2d Cir.1987) (citation omitted)); see also United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Furthermore, the federal policy favoring arbitration is even stronger in the context of international business transactions. See David L. Threlkeld & Co. v. Metallgesellschaft, Ltd., 923 F.2d 245, 248 (2d Cir.1991).
*375 However, courts will not force parties to arbitrate a dispute. See Chevron U.S.A., Inc. v. Consol. Edison Co., 872 F.2d 534, 537 (2d Cir.1989). It has been widely held that "arbitration is a matter of contract [law] and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." See, e.g., United Steelworkers, 363 U.S. at 582, 80 S.Ct. at 1353. "`In determining the arbitrability of a particular dispute, a court must decide "whether the parties agreed to arbitrate, and, if so, whether the scope of that agreement encompasses the asserted claims."'" Chiarella v. Vetta Sports, Inc., 1994 WL 557114, at *2 (quoting Progressive Casualty Ins. Co. v. C.A. Reaseguradora Nacional De Venez., 991 F.2d 42, 45 (2d Cir.1993) (citation omitted)).
With these tenets in mind, the Court now addresses plaintiffs objections to arbitration. Since it is undisputed that the arbitration clause in the Agreement was agreed to by both parties, the sole conflict in the instant motion is whether the arbitration clause encompasses the payment dispute at issue in this litigation. Cf. Chiarella, 1994 WL 557114, at *2.
In determining the scope of arbitration clauses, courts distinguish between "broad" and "narrow" provisions. "Broad clauses purport to refer to arbitration all disputes arising out of a contract, while narrow clauses limit arbitration to a specific type of dispute." Id. at *4 (citing McDonnell Douglas Fin. Corp. v. Pennsylvania Power and Light Co., 858 F.2d 825, 832 (2d Cir. 1988)). The Court finds that the arbitration clause agreed to by both parties in this case is a broad one because the arbitration clause purports to cover "any disputes arising out of th[e] Agreement."
Plaintiff, in opposing resolution of the underlying action through arbitration, first argues that the deletion of sections 3, 5 and 7, when the Agreement was modified, evidences the parties' intention that the Agreement not govern the sale of titanium dioxide between the parties. Plaintiff argues that the arbitration clause is inapplicable to the fifteen sales at issue here. The Court finds that this argument does not provide the positive assurance necessary to demonstrate that the arbitration clause is not susceptible of an interpretation that covers the instant dispute.
For example, the following interpretation is possible. Although the modified version of the Agreement deleted certain sections, these sections enforced restrictions applicable only in an agency relationship. Section 3 would have restricted Velco, as an agent, from making sales and setting prices, which, as a distributor, it is possible that Velco had the right to do. When the parties modified the Agreement to reflect a distributorship arrangement, Cristal appropriately deleted the sections which were no longer applicable. Thus, it is possible that instead of eliminating the Agreement's coverage of sales between the parties, the amended Agreement actually increased Velco's sales flexibility under the Agreement. Additionally, there is no language, either in the letter modifying the Agreement or in the Agreement itself, which supports plaintiff's argument that the modified Agreement does not govern sales. On the contrary, apparently the Agreement's sole purpose was to govern the sale of Cristal products to Velco. Def.Mem. at Ex. A, ¶¶ 1, 2.
Plaintiff's second argument is that the Agreement only permits Velco to distribute Cristal's titanium dioxide in Hungary and the Ukraine because they are the only territories specified in the schedule attached to the Agreement. In support of this argument, plaintiff points to the language in the Agreement which states that, "[t]he Principal [Cristal] hereby appoints the [Distributor, Velco] as its [distributor] for the sale in the territory specified in the schedule. ..." Def. Mem. at Ex. A, ¶ 1 (emphasis added). Since none of the fifteen sales disputed in this action were destined for Hungary or the Ukraine, plaintiff argues that the Agreement did not apply. The Court finds that this argument is also insufficient to preclude an interpretation of the Agreement in which the arbitration clause covers the instant dispute.
Section 4 of the Agreement allows Velco, after obtaining Cristal's written consent, to sell Cristal products in territories other than Hungary and the Ukraine. Velco maintains that Cristal gave its consent for each of the disputed sales. See Def.Reply at 3; see also *376 Goldschneider Aff., ¶¶ 14-16. Accordingly, the Court finds that it is possible that the Agreement encompasses sales made by Velco in the territory specified in the schedule as well as sales made in other territories.
Cristal, in its third argument, states that four of the fifteen sales of titanium dioxide were documented on Velco's own purchase order forms. The purchase order forms provide, in relevant part, that:
THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF THE PARTIES' AGREEMENT RELATING TO THE SUBJECT MATTER HEREOF. NO CHANGE IN, ADDITION TO OR WAIVER OF THE TERMS OR CONDITIONS OF THIS AGREEMENT SHALL BE BINDING UPON BUYER UNLESS APPROVED IN WRITING BY THE BUYER.
Cristal contends that this language renders the sale of goods made pursuant to these order forms separate contracts which are unrelated to either the Agreement or any arbitration contained in the Agreement. Velco, on the other hand, argues that these purchase order forms, which were entitled "Special Instructions," expressly incorporate Velco's "general terms and conditions," thereby incorporating the arbitration clause and all the other terms set forth in the Agreement. See Goldschneider Aff., ¶ 23.
The Court finds that it is possible that the sales documented on Velco's purchase order forms do encompass the arbitration clause. The purchase orders are inextricably tied to the Agreement because the orders stem directly from the parties' relationship under the Agreement and consist of the same subject matter as the Agreement. Cf. Threlkeld, 923 F.2d at 249. Therefore, in keeping with the federal policy favoring arbitration, especially in the context of international business transactions, see id. at 248, and the broad language of the arbitration clause in the Agreement, the Court concludes that it is quite possible that the arbitration clause encompasses the sales made under the purchase order forms.[1]
In sum, it may not be said with positive assurance that the impact of (1) the deletion of sections 3, 5 and 7 of the Agreement; (2) the use of Velco's purchase order forms, and (3) the territorial restrictions in the Agreement render the arbitration clause not susceptible of an interpretation in which the clause covers the asserted dispute. Cf. Assoc. Brick Mason Contractors, 820 F.2d at 35. Interpreting the arbitration clause in light of the "`liberal federal policy favoring arbitration agreements,'" Genesco, 815 F.2d at 844 (quoting Moses H. Cone Memorial Hosp., 460 U.S. at 24, 103 S.Ct. at 941), the Court finds that the payment dispute between Cristal and Velco, concerning the fifteen sales of titanium dioxide, should be submitted to arbitration.
CONCLUSION
For the reasons stated above, this Court grants defendant's motion to compel arbitration, and hereby orders plaintiff to properly submit to the arbitration of the parties' claims. This Court further orders that the current action is stayed and that, upon completion of arbitration, the parties shall return to this Court, if necessary, for the purpose of resolving any remaining unsettled claims.
SO ORDERED.
NOTES
[1] Defendant also argues that the parties' exchange of purchase orders and sales confirmations typifies a "battle of the forms" problem under Uniform Commercial Code § 2-207. This Court, having found that arbitration is not precluded by the use of Velco's purchase order forms, need not reach this issue.
Lastly, plaintiff contends that two of the disputed sales occurred prior to the time that the parties entered into the Agreement and are, therefore, necessarily not covered by the arbitration clause contained in the Agreement. Defendant argues that even though two of the sales occurred before the Agreement was memorialized, they are governed by the Agreement. See Goldschneider Aff., ¶ 5; Def.Reply at 4. The Court notes that the two sales were delivered on October 31, 1992 and December 2, 1992, and that Velco and Cristal executed the Agreement on December 1, 1992. This Court finds it almost as likely that the two sales were covered by the Agreement as it is that the other thirteen sales were conducted pursuant to the Agreement. The two sales at issue are as integrally related to the Agreement are as the other thirteen, and they all involve the same subject matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264583/ | 14 Cal.App.4th 1467 (1993)
18 Cal. Rptr.2d 362
THE PEOPLE, Plaintiff and Respondent,
v.
STEPHEN NELSON COOK, Defendant and Appellant.
Docket No. H009398.
Court of Appeals of California, Sixth District.
April 13, 1993.
*1468 COUNSEL
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan and Linda James, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
COTTLE, P.J.
In this case we hold that time spent at home in an electronic monitoring program as a condition of probation does not qualify for good conduct credits upon revocation of probation.
Defendant Stephen Nelson Cook appeals from a judgment of imprisonment for false imprisonment (Pen. Code, §§ 236-237 [case No. 112367]) and petty theft with a prior (Pen. Code, §§ 484, 666 [case No. 137753]). We affirm the judgment.
*1469 Defendant was originally granted probation in each felony case. One of the conditions of probation in case No. 112367 was that he spend time at home in the electronic monitoring program. After defendant admitted violating probation, his probation was revoked in both matters. In case No. 112367, defendant was sentenced to three years in state prison. In case No. 137753, he was sentenced to a two-year concurrent term. In case No. 112367, he received credit for 363 days of actual time served, which included 212 days for time spent in the electronic monitoring program. The court awarded defendant additional credit for good conduct pursuant to Penal Code section 4019 for the time he spent in the county jail. However, it concluded that defendant was "not entitled" to "good time/work time credits in the amount of 106 days as a result of 212 actual days in the electronic monitoring program."
The underlying facts in both cases are not relevant to the disposition of this appeal and need not be discussed herein.
(1a) Defendant contends that because he "was in a custodial setting when he participated in the E.M.P. program[,] ... he is entitled to good time/work time credit during his period of confinement."
Defendant concedes that "[e]ntitlement to good time/work time credit is statutorily authorized in Penal Code Section 4019," that section 4019 "provides that a person confined or committed to a `county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp' is entitled to an additional two (2) days credit toward any commitment for every (4) days actually served," and that "[a]t first blush it would appear that since an electronic monitoring program commitment is not one of the confinements listed in Section 4019, that no good time/work time credit is awarded."
Relying upon the holding in People v. Mobley (1983) 139 Cal. App.3d 320, 323 [188 Cal. Rptr. 583], that good conduct credit for time spent in a residential rehabilitation facility as a condition of presentence release on his own recognizance is "required by equal protection," defendant claims good conduct credits similarly are required by equal protection for time spent at home in an electronic monitoring program as a condition of probation, since denial of such credits would result in different treatment from that afforded defendants incarcerated as a condition of probation. Despite the plethora of cases since Mobley which have denied good conduct credit to persons committed to alcohol or drug treatment programs as a condition of probation (see, e.g., People v. Broad (1985) 165 Cal. App.3d 882, 883-884 [211 *1470 Cal. Rptr. 679]; People v. Palazuelos (1986) 180 Cal. App.3d 962, 965-966 [226 Cal. Rptr. 31]); People v. Moore (1991) 226 Cal. App.3d 783, 787 [277 Cal. Rptr. 82]), defendant argues that "[t]the real rationale underlying Mobley is that denying good time/work time credit to a person ordered into a non-Section 4019 custodial setting while granting such credit to a person housed in a Section 4019 facility denies the former group equal protection." In turn, he claims "[t]he real import of Mobley is that any person placed in any custodial setting should be granted good time/work credit."
Defendant's argument lacks merit. Just as "[t]here is a compelling state interest in denying conduct credits for time spent in a residential rehabilitation facility as a condition of probation" (People v. Broad, supra, 165 Cal. App.3d at p. 884), so there is a compelling state interest in denying such credits for time spent at home in an electronic monitoring program as a condition of probation. In both cases, "the rationale for affording such credits is absent: the threat of removal from the program is alone sufficient to deter misbehavior, without holding out the possibility of conduct credits for that purpose. [Citation.]" (Ibid.; see also People v. Moore, supra, 226 Cal. App.3d at p. 787.)
Here, in as in Broad, "Mobley is to be distinguished from the present case. The court in Mobley said that if such credits were not available to the defendant, he `may ultimately serve more custodial time than he would have served had he been able to post bail and thus avoid custodial restraint prior to commencing his term of commitment in CRC.' [Citation.] Thus equal protection required the granting of conduct credits to avoid discrimination based on financial status. No danger of discrimination based on financial status exists in the present case." (People v. Broad, supra, 165 Cal. App.3d 882, 884.)
(2), (1b) We also find it significant that effective September 18, 1991, Penal Code section 2900.5, which provides for the award of actual custody credit, was amended to permit actual credit when an individual is in a "home detention program" such as an electronic monitoring program, while Penal Code section 4019 was not similarly amended because "`[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed.'" (People v. Valentine (1946) 28 Cal.2d 121, 142 [169 P.2d 1]; see, generally, 2B Sutherland, Statutory Construction (5th ed. 1992) § 51.02, pp. 121-138.)
*1471 The judgment is affirmed.
Bamattre-Manoukian, J., and Wunderlich, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264592/ | 14 Cal.App.4th 393 (1993)
17 Cal. Rptr.2d 884
COMMERCIAL NATIONAL BANK IN SHREVEPORT et al., Petitioners,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JOHN GARAMENDI, as Insurance Commissioner, etc., et al., Real Parties in Interest.
Docket Nos. B069188, B069205, B069220, B069282.
Court of Appeals of California, Second District, Division Four.
March 22, 1993.
*396 COUNSEL
Pillsbury, Madison & Sutro, Philip S. Warden, Robert L. Wallan, Lillick & Charles, Stephen Oroza, John M. Rosenthal, Kristine E. Bailey, Pachulski, Stang, Ziehl & Young, Larry W. Gabriel, Fried, Frank, Harris, Shriver & Jacobson, Jed S. Rakoff, Howard W. Goldstein, Stephen D. Alexander, Manatt, Phelps, Phillips & Kantor, Philip Recht, Weinberg & Green, Charles O. Monk II, Arthur F. Fergenson, Thelen Marrin Johnson & Bridges, Christine Franklin, Gary L. Fontana, Adams Duque & Hazeltine and Catherine Ruddy for Petitioners.
*397 Squire, Sanders & Dempsey, R. Thomas Stanton, Joseph R. Cortese, Frances Floriano Goins and James W. Satola as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
Daniel E. Lungren, Attorney General, Edmund B. Mamer and Mark Richelson, Deputy Attorneys General, Rubinstein & Perry, Dana Carli Brooks, Matthew G. Ainley, Karl L. Rubinstein, McNitt, Edwards & Schraner, Kenneth A. Zak, Brobeck, Phleger & Harrison, Robert L. Hagle, Kent M. Roger, G. Larry Engel, David M. Higgins, Mahoney, Coppenrath, Williams & Jaffe, Walter Coppenrath, Jr., Marie E. Collins, Irell & Manella, Kenneth Robert Heitz, Kevin A. Frankel, Parker, Milliken, Clark, O'Hara & Samuelian, Michael S. Simon, Hopkins & Sutter, Carlisle Herbert, Van Bourg, Weinberg, Roger & Rosenfeld, Michael B. Roger, Dan Siegel and Peter N. Hagberg for Real Parties in Interest.
Buchalter, Nemer, Fields & Younger, Jonathan F. Bank and Iain A.W. Nasatir as Amici Curiae on behalf of Real Parties in Interest.
OPINION
EPSTEIN, J.
This is the second case to reach us as a result of the insolvency of Executive Life Insurance Company (ELIC). In the first, Texas Commerce Bank v. Garamendi (1992) 11 Cal. App.4th 460 [14 Cal. Rptr.2d 854], we held that municipal bond guarantee contracts (Muni-GIC's) issued by ELIC in 1986 were annuities and hence "life insurance" within the meaning of Insurance Code section 101.[1] Since these contracts qualify as annuities, we held that their owners are policyholders, entitled to class-5 priority status under section 1033.
We now consider the more basic question of the validity of the rehabilitation plan for the business of ELIC, as formulated by the Commissioner of Insurance (Commissioner) and approved by the respondent court.
The plan was developed in the course of insolvency proceedings instituted by the Commissioner on April 11, 1991. By that date ELIC had billions of dollars of insurance in force, but its financial condition had become so precarious as to require the Commissioner's intervention in the public interest. ELIC's insolvency was not due to problems with its considerable book of business, but to the condition of its investment portfolio.
(1) The seizure of its assets and institution of a conservatorship were actions taken by the Commissioner in accordance with law (§ 1010 et seq.) *398 in order to safeguard the assets and, if possible, to preserve the business of the company. When "an insurance company gets into financial difficulties, something must be done to remedy the situation. Either the company must be liquidated, and its assets distributed to its creditors, thus immeasurably injuring many of its policyholders who are thus deprived of insurance protection, or the business must, if possible, be rehabilitated. The public has a grave and important interest in preserving the business if that is possible. Liquidation is the last resort." (Carpenter v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 329 [74 P.2d 761].)
In accordance with this public policy, the Commissioner has undertaken to rehabilitate the business of ELIC. The statutory authority he exercises in that effort is an aspect of the police power of the state. It is substantial in its scope, but not boundless. Its basic parameters were described by our Supreme Court over 55 years ago in Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d at page 329: "The only restriction on the exercise of this power is that the state's action shall be reasonably related to the public interest and shall not be arbitrary or improperly discriminatory."
This standard and the requirements of the statutory provisions governing insurance insolvency proceedings furnish the test against which a court must judge any plan of rehabilitation. If they are satisfied, the court should defer to the executive judgment of the Commissioner and approve the plan. If they are not, the plan (or, at least, the offending provisions of the plan) must be referred back to the Commissioner for such modification as is required to formulate a plan that will satisfy the legal requirements.
We have thoroughly reviewed the challenged aspects of the plan submitted in this case. For reasons we shall discuss in detail, we are obliged to conclude that these provisions of the plan do not satisfy the Carpenter standard, or the statutory requirement (in §§ 1025 and 1033) that claims in a class share ratably with other claims in the same class. The plan is legally deficient in three respects: it sets up a unique "two-tier" valuing system for Muni-GIC's that is without any basis in law; it establishes a "dual valuation" system that improperly discriminates between substantially identical policies in the same class; and it selects a liquidation valuation date for those who choose not to accept restructured policies that has no relationship to the amount of assets that would be available for distribution were liquidation to occur.
Because of these deficiencies, we must direct that the order approving the rehabilitation plan be set aside. We do so with the hope and expectation that the deficiencies will be corrected and a new plan submitted that can be approved.
*399 FACTUAL AND PROCEDURAL SUMMARY
We begin with a review of the ELIC insolvency proceedings and the nature of the various ELIC insurance contracts involved in that litigation.
Immediately upon his appointment by the court as conservator of the ELIC estate on April 11, 1991, the Commissioner proceeded to sequester and conserve the assets of the insolvent company.[2] The size of the insolvency estate increased as payments to its general creditors ceased (except as necessary to preserve certain assets) and a moratorium was placed on payment of almost all benefits to ELIC policyholders.
The Commissioner embarked upon an effort to sell the noncash assets of ELIC, and to create a plan of rehabilitation whereby the insurance business of the company could be perpetuated for the benefit of policyholders.
Early in the insolvency proceedings, a dispute arose over the priority claim status of the eight Muni-GIC's which had been purchased for a total sum of $1.8 billion. In Texas Commerce Bank v. Garamendi, supra, 11 Cal. App.4th 460, we held these instruments to be annuities and their holders to be entitled to class-5-priority status. The nature and structure of the Muni-GIC's were described in the Texas Commerce Bank case (id. at p. 466), and we provide only a brief summary here.
The Muni-GIC's were issued to banks that acted as indenture trustees for eight municipal entities. Through these annuities, ELIC promised to make guaranteed, periodic accumulated interest payments to the trustee banks. The indenture agreements with the municipal entities required the banks to purchase Muni-GIC's from ELIC with the proceeds of funds raised by the entities through the sale of municipal bonds. The banks were required to transmit a part of the periodic annuity payments and special withdrawals from the Muni-GIC's to the municipal entities, and, on their behalf, to pay all debts on a pro rata basis.
The result was that ELIC was the issuer and the trustee banks the policyholders of the Muni-GIC's. The municipal entities were the sole intended third party beneficiaries of these instruments, and the municipal bond purchasers were creditors of the municipal entities.
During the pendency of the Muni-GIC claim priority dispute, the Commissioner entertained bids for assumption of portions of ELIC's assets and *400 liabilities through a rehabilitation plan. This included sale of substantial portions of ELIC's "junk bond" portfolio, and a negotiated rehabilitation plan. The successful bidder was New California Life Holdings, Inc. (Newco), a California insurance company.
The rehabilitation plan provides for transfer of essentially all liabilities and assets of insolvent ELIC to Aurora National Life Insurance Company (Aurora), a subsidiary that Newco acquired and recapitalized to effect the plan. The present value of ELIC assets to be transferred is estimated at $7.2 billion or more, but no adjudication of the precise value has been made. In addition to the transferred assets of ELIC, Aurora will have access to an additional $300 million capital infusion now held in trust by another Newco subsidiary, Altus.
The plan also incorporates benefits under an enhancement agreement negotiated through the National Organization of Life and Health Insurance Guaranty Associations. Under that agreement, the guarantee associations of 43 states will supplement the rehabilitation plan with substantial assets for the benefit of insurance contracts which these associations are otherwise obligated to cover under the laws of their respective states. The plan deems this contribution as fulfilling the statutory obligations of the associations to their respective covered policyholders.
Aurora will assume liability for all ELIC insurance contracts and will issue restructured insurance contracts to owners of ELIC contracts who agree to participate in the plan. Aurora will make lump-sum "liquidation" cash payments to contract holders who elect not to accept a restructured contract. The plan provides all policyholders the right to opt out, but it is designed to discourage that election.
The benefits due under the restructured insurance contracts and the liquidation payments to be made to policyholders who elect to opt out are determined by a series of complex formulae. (We provide a summary description and analysis of these methods, as required, in our discussion of the issues.)
The initial step in valuing ELIC policies is to calculate the "account value." The plan uses a dual valuation method (which we discuss, post) by which all policies are classified as "declared rate" or "implied rate" contracts. The account values of all contracts are then totaled and divided into the value of ELIC's distributable assets as of the effective date of the plan. The result is the cents-on-the-dollar "restructuring percentage." The "ELIC restructured value" of each contract for purposes of determining benefits is derived by multiplying its account value by the restructuring percentage.
*401 The value of each restructured contract for purposes of fixing its alternative liquidation cash-out payment is obtained by multiplying the account value by the "liquidation percentage." That percentage, in turn, is fixed by dividing the value of ELIC's distributable assets as of the April 11, 1991, insolvency date by the total account values of all contracts. The trial court has adjudicated the value of the distributable assets on April 11, 1991, to be $5.044 billion. Based on that, the liquidation value of a restructured contract will be about 72 percent of its value for purposes of benefits as a continuing Aurora restructured contract.
The plan assumes the Muni-GIC holders to be entitled to class 5 priority, contingent upon affirmance of the trial court's decision that they are entitled to that status. As we have discussed, we affirmed that determination in Texas Commerce Bank, a decision that has now become final.
While there was extensive expert opinion testimony about the valuation methods used in the plan, and about alternative methods, there were few significant disputes as to the material facts. The principal dispute is over a legal issue: whether the valuation methods used are arbitrary and improperly discriminatory.
The court issued its order approving the plan on July 31, 1992. This was immediately followed by petitions for extraordinary writ and notices of appeal. We have chosen to review the order by extraordinary writ because of the importance of a prompt appellate determination to numerous policyholders and to the California insurance industry.[3] We therefore do not determine whether the challenged ruling is immediately appealable as a final judgment.
DISCUSSION
I
The Statutory Scheme and Court Decisions
The California insurance insolvency law is codified in article 14, chapter 1, division 2, part 2 of the Insurance Code. It was enacted in 1935, based on the New York insurance law. (Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d at p. 328.) Article 14 includes more than 60 sections, but only a few are pertinent to our discussion.
*402 Section 1011 authorizes the Commissioner to initiate conservatorship proceedings by filing a verified application in the superior court. Nine grounds are specified, including the circumstance applicable in this case: that the insurer "is found, after an examination, to be in such condition that its further transaction of business will be hazardous to its policyholders, or creditors, or to the public." (§ 1011, subd. (d).) Upon appointment as conservator, the Commissioner is vested with title to all assets of the insurer, is commanded to take possession of its property, and is authorized to conduct so much of its business as he or she deems appropriate.
In the insolvency proceedings thus commenced, the Commissioner is deemed to be a trustee for the benefit of all creditors and others interested in the estate of the insolvent insurer. (§ 1057.)
Section 1023 provides for the form and content of claims in insolvency proceedings.
Section 1033 establishes a schedule of priority for claims against the estate of the insurer, placing policyholder claims in the fifth position (superior only to "all other claims").
The classification of claims into specific priority levels establishes the rights of the claimants to share ratably with other claimants in the same class. (See Jones & Son v. Independence Ind. Co. (1942) 52 Cal. App.2d 374, 379 [126 P.2d 463].) This policy also is reflected in section 1025, which controls the filing and resolution of unliquidated and undetermined claims. Once such claims have been "definitely determined, proved and allowed," they "share ratably with other claims of the same class in all subsequent determinations."
Section 1016 authorizes the superior court to issue an order of liquidation upon proper application of the Commissioner, and section 1019 provides that when a liquidation order is issued, the rights of policyholders and all others interested in the assets of the insolvent insurer "shall, unless otherwise directed by the court, be fixed as of the date of the entry of the order" by the county clerk.
Section 1037 confers broad powers on the Commissioner as conservator or liquidator to handle the insurer's affairs during the insolvency proceedings.
Finally, section 1043 authorizes the Commissioner, with court approval, to mutualize or reinsure the business of the insurer "or enter into rehabilitation agreements." The section does not elaborate on the Commissioner's *403 powers with respect to rehabilitation agreements, but we read it in pari materia with the other provisions of article 14. The entire statute imposes a fiduciary duty on the Commissioner, as a trustee, to all policyholders to ensure that each is treated fairly and shares ratably with other policyholders.
Since its enactment in 1935, the insolvency article has been construed and applied in a number of cases. Three of them Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d 307, Neblett v. Carpenter (1938) 305 U.S. 297 [83 L.Ed. 182, 59 S.Ct. 170], and Caminetti v. Pacific Mut. Life Ins. Co. (1943) 23 Cal.2d 94 [142 P.2d 741] are central to the issues before us in these proceedings. Each of this trilogy arose out of the 1936 insolvency of Pacific Mutual Life Insurance Company.[4] Of these, Carpenter is by far the most significant for our purposes.
The insolvency of Pacific Mutual was brought about by noncancelable accident and health policies for which insufficient premiums were charged. The losses caused by these policies threatened to overwhelm the profitable book of business the company conducted in the life insurance field and would, if unchecked, eventually have led to liquidation of the entire company. The Commissioner instituted conservancy proceedings and eventually succeeded in formulating a plan of rehabilitation that made it possible to avoid cancellation of the company's insurance. To do that, policies were restructured in such a way that the benefits provided to insureds by the accident and health plans were reduced, while the life insurance policies were not substantially changed. Persons holding accident and health policies were given the option of accepting the restructured and reduced policies, or opting-out of the plan and accepting a lump-sum payment based on what they would have received if the company simply had been liquidated. (Carpenter v. Pacific Mut. Life Ins Co., supra, 10 Cal.2d at pp. 321-322.)
The plan was approved. The court held that section 1043 allowed the Commissioner to rehabilitate as well as to liquidate, and that this power extended to reorganizations in which a new insurance company takes over the business of the insolvent through restructured policies. (10 Cal.2d at pp. 329, 332.)
The court addressed claims that imposing a new contract and a new insurance company effected an unlawful impairment of contract rights. The court also considered the argument that the Commissioner's authority did *404 not permit any discrimination between the life policyholders and the holders of noncancelable accident and health insurance. The court found these arguments to be without merit:
"It is no longer open to question that the business of insurance is affected with a public interest. The state has an important and vital interest in the liquidation or reorganization of such a business. [Citations.] Neither the company nor a policyholder has the inviolate rights that characterize private contracts. The contract of the policyholder is subject to the reasonable exercise of the state's police power." (Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d at p. 329.)
It was in this context that the court made its statement, quoted near the beginning of this opinion, that the only restriction on the exercise of the police power in insurance rehabilitation is that it be reasonably related to the public interest and "not be arbitrary or improperly discriminatory." (10 Cal.2d at p. 329.)
To the claim that the plan was unlawfully discriminatory because life policyholders were taken into the plan on more liberal terms than holders of noncancelable accident and health policies, the court pointed out that policyholders who consent to the new plan enter into a novation and, having done so, cannot complain of unfair treatment. Dissenters had no legal cause to complain "simply because the commissioner determined to rehabilitate rather than liquidate.... All that the law requires as to a dissenter is that he receive the liquidated value of his contract rights without unreasonable delay he has no vested right to immediate payment.... [¶] ... [¶] All the dissenter is entitled to is the equivalent of what he would receive on liquidation." (Carpenter v. Pacific Mut. Life. Ins. Co., supra, 10 Cal.2d at p. 335.)
Carpenter provided an alternative justification for the disparate treatment by which holders of one type of policy were given relatively more favorable benefits than another. That discrimination is justified if it is founded on a rational basis related to effecting a successful rehabilitation. Pacific Mutual's life insurance policies were a profitable book of business, but the noncancelable accident and health policies had brought about the insolvency of the company because they had been issued at insufficient premium rates and could not be cancelled. The court explained that the only feasible means of saving the insurance business of the company was to give the life policies competitive benefit levels so that they would continue to generate profit and eventually permit elevation of benefit levels for the initially disfavored noncancelable policies. Thus, the disparate treatment of the restructured *405 noncancelable policies was rationally based and recognized as necessary to avoid straight liquidation of the insolvent's business. (10 Cal.2d at pp. 336-337.)
In the case of the ELIC rehabilitation plan, there was no suggestion that any line of the company's insurance business was unprofitable, much less so unsound as to jeopardize the fiscal health of the company. The insolvency was brought about by other circumstances, having to do with the investment of premium income.
We view Carpenter as critically important in analyzing the ELIC rehabilitation plan. We realize, however, that it does not squarely resolve all of the issues presented by that plan. For example, it does not determine whether a rehabilitation plan that allows all policyholders to opt out and receive at least the equivalent of a true liquidation share must value all types of opting-out policies equally. Carpenter approved a plan that treated all types of policies equally as opt-outs, and the court was not called upon to decide the validity of a plan in which a minimum liquidation share is guaranteed but in which different types of policies receive different payment levels above that minimum.
Carpenter also does not decide the appropriate date for valuation of an insolvent insurer's distributable assets for purposes of calculating opt-out liquidation values.[5]
The Carpenter decision was affirmed by the United States Supreme Court in Neblett v. Carpenter, supra, 305 U.S. 297. The Neblett court addressed the claim that an impairment of contract arises "from the less favorable terms and conditions of the new noncancelable policies which are to be substituted for the old ones and, in the case of the life policies, by the substitution of a new company as contractor in place of the old, without the consent of the policy holder." The argument was based on the theory that policyholders were compelled to accept the new company as insurer on terms set out in the rehabilitation plan. The court found the premise of the argument to be unsupported because policyholders were not compelled to accept the new company or restructured policies; instead, they were given the option of liquidating their interests on terms that appeared to be as favorable as those *406 they would have received from a complete liquidation of the assets of the company. (305 U.S. at p. 305 [83 L.Ed. at p. 189].)
In Caminetti v. Pacific Mut. Life Ins. Co., supra, 23 Cal.2d 94, the last case in the series, our Supreme Court addressed the proper method for determining the value of the claims of those holders of noncancelable disability policies who dissented from the rehabilitation plan and chose to take a lump-sum cash payment. Caminetti approved a plan that was based on the policyholder's share of the "reserve." The court described a five-step method for calculating the policyholder's share: (1) calculation of the total projected benefits of all policies for the life expectancy of the insured (since the policies were noncancelable); (2) calculation of the total premiums that would be received during the policy terms; (3) commutation of each amount to its present value, using a 7 percent simple interest rate (the legal rate at that time); (4) subtraction of the commuted premium total from the commuted total of benefits; and (5) distribution of the difference to dissenting policyholders on a pro rata basis. (23 Cal.2d at p. 108.) The court was careful to limit its holding to the particular type of policies involved. (Id. at p. 110.)
With this background of the statutory scheme and the principal cases that have construed it in place, we proceed to review specific challenges to the ELIC rehabilitation plan.
II
The Two-tier System
The central issue in this litigation is how policyholder accounts are to be valued for purposes of calculating the terms of restructured policies and the amount of lump-sum payments to be made to those who choose not to accept those policies.
(2a) In the case of Muni-GIC's, and for them alone, the plan sets up a valuation system that disregards the actual policyholders and the amounts they paid to purchase their annuities. This is the "two-tier" system, and it is the basis of the first challenge to the plan that we discuss.
The assumption of the two-tier system is that the trustee banks that purchased and that hold the Muni-GIC's, and to which they were issued, are not policyholders. Instead, the system looks through the banks and the municipalities that furnished the funds to buy the policies, to the current owners of the municipal bonds issued to raise funds used to purchase the *407 annuities.[6] The valuation is not based on the amount raised from the sale of municipal bonds for purchase of the annuities or on what ELIC received for the annuities, but on what each bondholder of record actually paid for bonds on the primary or secondary market, if the acquisition was on or before the April 11, 1991, insolvency date. For purchases after that, the plan uses the market value of the bonds on April 11, 1991.
Stated in another way, the system disregards the $1.8 billion actually paid to ELIC for the Muni-GIC annuities, and looks instead to the out-of-pocket amounts paid by persons who were bondholders of record on April 11, 1991, and to the market price on that date for bondholders who purchased bonds thereafter.
The effect of disregarding the premiums actually realized by ELIC is significant. It is undisputed that a large number of the municipal bond owners purchased their positions on the secondary market at prices below, and in some cases substantially below, the par-value issuance price. Devaluing the Muni-GIC's reduces the amount to be paid or credited to their owners, either in benefits or in opt-out payments. The money realized by this devaluation increases the value of other policies relative to the Muni-GIC's.
The Commissioner argues that rehabilitation proceedings are equitable in nature and that the plan is fair because it prevents profit taking by those who purchased bonds for less than a par consideration. He also asserts that statutory requirements for recognition of consideration and ratable distribution are satisfied by focusing on the out-of-pocket amounts paid by the bondholders.
We cannot accept the two-tier approach as valid. It is based on an unjustified fiction, and it is not supported by law or reason.
Its most obvious infirmity is that it treats the municipal bondholders as "claimants" and "policyholders." They are neither. It also refers to the out-of-pocket payments for the bonds (or the market price on April 11, 1991, for bonds purchased after that date) as the "consideration" for the Muni-GIC's. They are not.
Section 1023 controls what must be shown for a creditor or policyholder claim to be allowed against the estate of the insolvent insurer. The statute *408 requires that a claim based on a contractual obligation declare that the amount claimed is "justly owing from such person [the insolvent insurer] to the claimant" and state "the particulars thereof, and the consideration paid therefor." It is evident that section 1023 means consideration paid by or on behalf of the insured for the insurance contract, not consideration paid in some other transaction by parties not in privity with the insurer.
There can be no serious dispute that the record owners of the municipal bonds issued in 1985 and 1986 to fund the 1986 ELIC Muni-GIC's have no privity of contract with the insolvent insurer and did not pay section 1023 "consideration" to ELIC for the Muni-GIC's.
In Texas Commerce Bank v. Garamendi, supra, 11 Cal. App.4th 460, we explained in substantial detail what constitutes an insurance annuity under section 101. We concluded that the 1986 ELIC Muni-GIC's are entitled to class 5 "policyholder" claim status against the ELIC estate because they qualify as insurance annuities under section 101. In arriving at this conclusion we examined the relationship between the Muni-GIC's and the underlying "indenture agreements" between the respective trustee banks and municipal entities.
Under the provisions of the Muni-GIC's, ELIC's only contractual obligations were to the trustee banks, as owners, and to the underlying municipal entities, which were designated in the GIC's as the only intended third party beneficiaries. The very terms of the Muni-GIC's state that the indenture trustees are the legal owners of those annuities. The Muni-GIC's expressly disclaim any intent to create any other third party beneficiary or contractual obligation on the part of ELIC. While the underlying bonds were offered to the public with the representation that the municipal entities' obligations would be backed by the security of Muni-GIC's, this did not create a policyholder status in the bondholders or a contractual relationship between bond purchasers and ELIC.
The circumstance that the indenture agreements between the municipal entities and the bank indenture trustees require the banks to pay a portion of the Muni-GIC periodic payments to bondholders for accruing interest on the bonds, and generally subject the agreements to insolvency and bankruptcy laws, does not abrogate the legal status of ELIC as insurer, the trustee banks as the sole Muni-GIC policyholders, or the municipal entities as the only third party beneficiaries under the indentures.
The requirements of section 1023 also are inconsistent with provisions in the plan that municipal bondholders are entitled to share ratably with class 5 *409 priority claimants. Even if bondholders somehow could qualify as claimants on the theory that ELIC owed a debt to the municipal entities that the bondholders could reach, they would be, at best, class 6 general creditors, not entitled to share ratably or at all with the class 5 claimants.[7]
Besides its inconsistency with section 1023, the legal fiction that bondholders are policyholders also is inconsistent with the rationale of equitable distribution required by the controlling statutes and by the Carpenter rationale.
(3) Sections 1025, 1033 and 1057, read together, manifest the principle that the insolvency trustee has a fiduciary duty to effect a pro rata distribution to all allowed policyholder claimants. Section 1025 controls the allowance of unliquidated claims, but requires that such claims, once proved and allowed, "... shall share ratably with other claims of the same class in all subsequent distributions." Section 1033 controls liquidation preferences of allowed claims. Its subdivision (a)(5) gives the same claim priority to "all claims of policyholders of an insolvent insurer that are not covered claims." Section 1057 provides that in insurance insolvency proceedings the Commissioner is deemed to be the trustee for the benefit of all creditors and other persons interested in the estate.
The principle embodied in sections 1023, 1033 and 1057 precludes the Commissioner from disregarding insurance contracts or the policyholders who filed claims based on those contracts. It also precludes him from reducing the value of those contracts in order to achieve objectives extraneous to the entitlements of the policy owners.
(2b) In fact and in law, the Muni-GIC's, not the municipal bonds, are the policies; the trustee banks, not the bondholders, are the claimants; and the $1.8 billion paid to ELIC by the banks, not the prices paid by bondholders for their bonds, is the "consideration paid" within the meaning of section 1023.
The discrimination against Muni-GIC policyholders by the two-tier system is manifest. They are the only group as to whom the actual purchase *410 price paid for an insurance product is disregarded. We have pointed out that the use of this system seriously disadvantages Muni-GIC policyholders relative to other policyholders.
There is not even a claim, much less proof, that the system is necessary to a successful rehabilitation plan. Indeed, the Aurora parties point out that the system "principally affects the rights of policyholders inter se," and that they are neutral on the issue. Understandably, they decline to address it.
And, unlike the unsound accident and health policies in Carpenter, there is no claim that the Muni-GIC annuities had anything to do with the insolvency of ELIC. Rather, they generated large immediate-premium funds for ELIC and were a relatively high profit product.
The Commissioner claims the two-tier assumption is validated by the broad discretionary powers conferred by section 1043 and the Carpenter case, to modify insurance contracts in a rehabilitation. This degree of discretionary authority is not conferred by statute or case law.
(4) Section 1043 is the statute expressly authorizing the Insurance Commissioner to "[enter] into rehabilitation agreements." Section 1043 gives no further delineation of the scope of that authority. In view of the related statutes setting forth express parameters for treatment of creditor claims in insolvency proceedings, we must presume that the Legislature intended section 1043's terse statement of rehabilitation authority in the Commissioner to be limited by the general principles explicitly set forth in the comprehensive statutory insurance insolvency scheme. (§§ 1010-1062.)
The Commissioner reads Carpenter (10 Cal.2d at p. 329), to permit him "reasonable exercise of the state's police power," provided "the state's action shall be reasonably related to the public interest and shall not be arbitrary or improperly discriminatory."
This reading is correct, but it is confined to the police power of the state as manifested in the insolvency statutes; it does not extend to independent discretionary powers which transcend the parameters set by those statutes.
(2c) What is left is the claim that the authority to impose a "two-tier" system may be implied from the equitable nature of insurance insolvency proceedings.
It is not disputed that insurance insolvency proceedings are special proceedings controlled by statutory provisions requiring fairness with respect to *411 allowed claims within the same claim priority class. But no authority has been cited and none has been found conferring discretion to the superior court to approve a valuation scheme that disregards the very insurance policies upon which claims were filed and approved, and disregards the legal owners of the policies who actually paid consideration for their contracts to the insolvent insurer and filed timely claims against the insolvent insurer. Neither is there any statute, other than section 1026.1 (which permits subrogated claims) allowing persons not in privity of contract with the insolvent insurer to share in the estate as class 5 "policyholders." Section 1026 permits a third party to file a section 1023 creditor claim against the insolvent insurer only if that party has a claim against the insolvent's insured and that claim is covered by a liability policy.
The "equity" argument is based in large part, if not entirely, on the notion that speculators who purchased municipal bonds at prices less than their par issuance value should not be allowed to profit. There is no showing or even an argument that any of the bond transactions are voidable or illegal in any way. The usual rule is that the buyer of a bond or similar instrument of debt is at least entitled to exercise the right of the seller, into whose shoes the buyer has stepped. There is nothing to suggest that this rule does not apply to bondholders who purchased bonds on the secondary market. Indeed, if it did not, there would scarcely be a secondary market.
The two-tier system vitiates the legal ownership rights of the trustee banks and diminishes by millions of dollars the account values of the Muni-GIC's. This indirectly diminishes the amount of ELIC funds that might ultimately be distributed to the legal owners of the Muni-GIC's and transmitted by them to the issuing municipal entities and their creditors, the current bondholders (including those who bought at par-value issuance prices or higher). Moreover, it does nothing to reimburse an original bond purchaser who sold at a distressed price.
We find nothing equitable in a system that disregards the very insurance policies upon which claims were filed and approved, disregards the legal owners of the policies who paid for them, and simply redirects a part of their entitlement for reasons unrelated to effectuation of the rehabilitation plan.
Neither law nor equity empowered the Commissioner to impose such a plan, or the court to approve it.[8]
*412 III
The Dual Valuation Method
(5a) The Muni-GIC and Pension GIC petitioners challenge the dual valuation method contained in the rehabilitation plan for determining individual account values. They argue that it is discriminatory and arbitrary in its disparate treatment of substantially similar contracts.
As we have seen, the initial account value for each ELIC contract is critically important because it serves as the basis for all further calculations of benefits due under restructured insurance contracts to consenting policyholders and for payments to opting-out policyholders. Because of this, any inequities in the valuation process result in inequities in the determination of the amount of the policy benefits or payments due for opt-outs.
The Carpenter standard that state action be reasonably related to the public interest and not be arbitrary or improperly discriminatory (Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d at p. 329) does not require precisely equal treatment in all cases. There are circumstances in which a different treatment may be justified on the basis of proven necessity to preserve the rights of all policyholders. (Id. at p. 337.) As we shall demonstrate, the dual valuation plan is not one of them. It is inequitable in its result, and neither the Commissioner nor Aurora has established adequate justification for its unequal treatment of the policyholders it affects.
Under the plan, ELIC contracts which explicitly state an initial accumulation value or an annual account value and a guaranteed interest rate are valued under the "declared rate" method. These include annual premium whole life contracts, single premium life annuity contracts, single premium whole life contracts, Pension GIC's and Muni-GIC's. Each of these contracts is valued by the initial account value (net premiums paid) plus accumulations accrued but unpaid as of the April 11, 1991, insolvency date. The resulting figure reflects the actual accrued value of the contract.
ELIC contracts which state the premuim paid and the benefits promised, but do not explicitly state an accumulation value or a guaranteed interest rate are valued in the plan under an "implied rate" method. Contracts in this category are single premium immediate annuities, allocated qualified retirement annuity contracts, and custom qualified retirement annuity contracts. The account value for these contracts is calculated by taking the total *413 projected future benefits to be paid under the contract for the term remaining, discounted to their value on the insolvency date by an "implied" discount (or commutation) rate of 8 percent (the prevailing market rate on the insolvency date) for 10 years (until April 11, 2001), and 6 percent thereafter.
The flaw in this approach is that neither the 8 percent nor the 6 percent discount rate bears any relationship to the contracts to which it is applied. Underlying the pricing of each of these contracts were certain pricing assumptions, including an assumption as to the interest rate which would be earned during the life of the contract. While the interest rate was not included as an express contract term, it was implicit in the contract price. For example, it was established at trial that the future benefits for single premium immediate annuities, one type of implied rate contract, were based on an interest rate which ranged between 9 and 13 percent. These rates are documented in the evidence, and there is no suggestion that any of them is actuarially unsound.
If the actual interest rates underlying the implied rate contracts had been used for the commutation to April 11, 1991, values, the resulting account values would have reflected the actual accumulated worth of the contracts as of the date of the insolvency. Such a valuation would mirror the declared rate valuation. Instead, each account was discounted for the unexpired portion of the contract at a rate lower than the rate at which it was to have accumulated during that period. In other words, it was not discounted enough to accurately establish present value as of the insolvency. The result was to inflate the account value of the implied rate contracts relative to other contracts.
The Muni-GIC purchased by Texas Commerce Bank is an example. It was purchased from ELIC in 1986 for $197,950,000. The contract specified a guaranteed interest rate of 9.11 percent, compounded semiannually, and is therefore classified as a declared rate contract. Valued as of April 11, 1991, under the declared rate method, the account value is $206,960,669. Valued under the implied rate method, the account value is $218,002,810, about 6 percent more than the declared rate value. As this illustration demonstrates, and as real parties in interest concede, the implied rate method yields substantially higher account values for Muni-GIC's and other ELIC contracts than the declared rate method. There is therefore no doubt that the plan results in disparate treatment. The question becomes whether the distinction is justified.
The Commissioner and Aurora argue that the dual valuation method is rationally based and does not improperly discriminate between substantially similar insurance contracts. They advance several justifications for its use.
*414 First, they assert that the method is based upon explicit provisions of the contracts and is as objective as possible. They argue that as to contracts which state accumulation values and guaranteed interest rates (the declared rate contracts), it makes sense to treat those terms as bargained-for provisions and apply them to account value determination. For those contracts without stated accumulation values or guaranteed interest rates (the implied rate contracts), they argue that imposition of contractual terms beyond those the owners bargained for would interfere with the contracts. Thus, they say, the only reasonable alternative is to value these contracts by projecting their total future benefits and commuting that total to present value as of the ELIC insolvency date.
There are several problems with this rationale.
It overlooks the fact that the preeminent, bargained-for feature of the ELIC policies or any insurance product is the promise to "indemnify another against loss, damage, or liability arising from a contingent or unknown event" (§ 22) or, in the case of an annuity, the promise to pay money for a certain period of time or a time measured upon the "lives of persons or appertaining thereto." (§ 101; Texas Commerce Bank v. Garamendi, supra, 11 Cal. App.4th at p. 469.) Dual valuation ignores the substantively similar benefits promised in all of the annuities and focuses instead upon the relatively insignificant formal difference that one group of contracts specifies a guaranteed interest rate and initial accumulation values while the other does not.
It was demonstrated at trial and conceded by the Commissioner's expert that it is possible to value declared rate contracts under the implied rate method, and vice versa. More specifically, it was established that Muni-GIC's may be valued by the implied rate method if the single actuarial assumption is made that the owners would request payment of all interest accrued as of each semiannual payment date.[9]
For example, the 1986 ELIC Muni-GIC's are substantively similar to ELIC single premium immediate annuities such as structured settlement *415 annuities and lottery annuities. Each is a single premium annuity. Each commences a stream of periodic payments generated by an internal rate of interest. And for each, the stream of promised future benefits is the preeminent feature of the contract. Whether an initial accumulation fund or the effective rate of interest is stated on the face of the contract is of relatively little importance to the policyholder or to the nature of the contract. The contract owners paid a single premium in order to receive a guaranteed future periodic payment of a guaranteed amount; that is the substance and primary function of the contracts. Yet the rehabilitation plan provides different valuation methods for these substantially similar contracts, based solely on whether the accumulation fund and effective rate of interest were stated or implicit in the contract.
Nor is there a computational obstacle to valuing both types of contracts in the same manner. Both Muni-GIC's and single premium immediate annuities promise a similar stream of periodic future benefits that can be computed and commuted to present value with equal accuracy and essentially equal simplicity. Once the initial accumulation fund of an implied rate contract is ascertained by reference to ELIC records and the total future benefits promised by that contract are extrapolated, the effective accumulation rate is easily calculated. This single additional arithmetic step permits contracts with substantially identical benefit streams to be valued by the same method. The Commissioner's actuarial expert conceded on cross-examination that the effective accumulation rate of implied rate contracts could easily be calculated by amortization tables.
(6) As to the concern with impairment of contract terms, policyholders of the insolvent company have no constitutional right to a particular form of remedy (Neblett v. Carpenter, supra, 305 U.S. at p. 305 [83 L.Ed. at p. 189]); and the contracts of the policyholders are subject to modification through reasonable exercise of the state's police power. (Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d at p. 329.)
(5b) The second proferred justification is that the dual valuation method accomplishes the purpose of making account value determinations simple and readily understandable to the policyholders. This is difficult to credit. The valuation scheme is complex under any approach, but only a single further arithmetic computation is needed to develop account values based on the interest rates actually used when the contracts were formulated. An approach that uses an interest rate unrelated to the actual cost of the contracts can hardly be said to aid the understanding of the laypersons who own them. As we have discussed, the primary focus of the policyholders is necessarily on the promised benefits they will receive. If it is considered that *416 the means of calculating the benefits should be manifest, even though the original contracts did not spell them out, that can be accomplished as readily by implying the actual interest rate used in formulating the original policy.
The third justification advanced is that, even though the method selected may not be the most accurate or the fairest, it does not have to be; it is enough if it does not arbitrarily or improperly discriminate as between substantially similar contracts and has a reasonable relationship to the public interest in rehabilitating the insurance business of the insolvent insurer.
We agree with this statement as far as it goes. But while the method selected does not have to be the "best" available, no justification is offered for the substantial discrimination produced in this case between substantially similar contracts. It has not been established that the disparate treatment bears any reasonable relationship to the public interest in rehabilitating the insovent insurer, or that it is necessary to preserve the rights of all the policyholders. (See Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d at p. 337.)
We do not mean to suggest that an implied actual interest rate is the only valuation method that can be used. There certainly are other ways in which to accomplish a fair and uniform means for valuing each account. For example, Caminetti upheld the use of a reserve method under its facts. (23 Cal.2d at p. 108.) We already have noted that, in doing so, the Caminetti court said nothing to preclude the possibility that other methods might be appropriate in other cases. (Id. at pp. 108-110.)
In the trial court and in this mandate proceeding, petitioners advocated use of the statutory reserve method or uniform application of either the implied rate method or the declared rate method for valuation of all insurance contract claims. Respondent's order approving the rehabilitation plan determines only that the plan is "within the sound discretion of the California Insurance Commissioner acting as Rehabilitator" and that "no provision of the Plan violates any requirement of law and all requirements of due process have been met." We need not and do not undertake to evaluate the various alternative valuation methods which the parties may present in any revised rehabilitation plan, beyond observing again that any plan that is reasonably related to the public interest and which is not arbitrary or improperly discriminatory should suffice. Unfortunately, the dual valuation method applied in this case does not meet these criteria.
IV
The Liquidation Valuation Date
(7a) The final issue we determine is whether the date ELIC conservatorship proceedings were commenced (April 11, 1991) is an appropriate date *417 for setting the value of the distributable assets of the insolvent that opting-out policyholders will share.
The selection of the April 11, 1991, conservatorship date, rather than a date closer to the effective date of the rehabilitation plan, relegates opting-out policyholders to share a fund acknowledged by all parties to be billions of dollars less than the value of the ELIC assets when the rehabilitation plan was approved, on July 31, 1992. The value of ELIC's assets as of April 11, 1991, was adjudicated by respondent to be $5.044 billion. The parties dispute the value of the assets at present, but it is agreed that the estate has substantially appreciated (partly due to cessation of payments to most general creditors and reduced interim benefit payments to policyholders) and may amount to $7.6 billion.
The liquidation valuation date is important because it determines the amount of ELIC assets available for pro rata distribution among opting-out policyholders. Consequently, it also determines the amount of ELIC assets available to Aurora for purposes of carrying on the business of ELIC through the restructured policies of the opting-in policyholders. A calculation based on the liquidation value of the insolvent estate as of the date of implementation of the rehabilitation plan would increase the portion of ELIC assets available to opt-out policyholders and decrease the portion transferred to Aurora.
The Commissioner and Aurora contend that the April 11, 1991, date set by the plan is authorized by section 1019 and supported by equitable considerations. They also contend that setting the valuation date is a matter within the broad discretion conferred upon the Commissioner, acting as rehabilitator, and upon the superior court by section 1043 and the police power of the state.
We conclude that the valuation date selected cannot be supported.
Section 1019 provides: "Upon the issuance of an order of liquidation under section 1016, the rights and liabilities of any such person [the insurer in liquidation] and of creditors, policyholders, shareholders and members, and all other persons interested in its assets ... shall, unless otherwise directed by the court, be fixed as of the date of the entry of the order...." (Italics added.)
The Commissioner and Aurora read the section 1019 reference to "rights and liabilities" as including the determination of the total value of the distributable assets of the insolvent insurer for purposes of liquidation *418 distribution. They urge that the statute's reference to a court order ("unless otherwise directed by court") confers discretion on the court to select either the date of the liquidation or any other date for the valuation. They conclude that section 1019 authorizes a rehabilitator under section 1043 to select any liquidation valuation date for purposes of determining how much is available for distribution to policyholders opting-out of the rehabilitation.
Real parties' construction of section 1019 rests upon an inappropriate melding of two separate subjects: (1) the existence and valuation of approved individual creditor claims and (2) valuation of the total assets of the insolvency estate available for purposes of distribution in straight liquidation or under a rehabilitation plan.
California cases arising under section 1019 are not helpful. They concern whether a particular claim is allowable against the insolvency trustee at the time the liquidation order or conservation order is filed, or the setoff rights of claimants based on the actual value of mutual obligations between the insolvent and the particular creditor. (See Prudential Reinsurance Co. v. Superior Court (1992) 3 Cal.4th 1118 [14 Cal. Rptr.2d 749, 842 P.2d 48]; (Carpenter v. Coast Surety Corp. (1938) 25 Cal. App.2d 209, 211-212 [77 P.2d 294]; Downey v. Humphreys (1951) 102 Cal. App.2d 323, 331, 337 [227 P.2d 484]; Mitchell v. Pacific Greyhound Lines (1939) 33 Cal. App.2d 53, 68-69 [91 P.2d 176]; Kinder v. Superior Court (1981) 125 Cal. App.3d 308, 315 [178 Cal. Rptr. 57].)
None of the other cases cited by real parties on this point addresses the construction of section 1019; they concern the status of allowable claimants, the amount of contract damages, or the amount of permissible setoff. (See Amer. Surety Co. v. Bethlehem Nat. Bank (1941) 314 U.S. 314, 318 [86 L.Ed. 241, 242-243, 62 S.Ct. 226, 138 A.L.R. 509]; American Nat. Bank v. Federal Dep. Ins. Comp. (11th Cir.1983) 710 F.2d 1528, 1540; Merrill v. Commonwealth Mut. Fire Ins. Co. (1898) 171 Mass. 81 [50 N.E. 519]; People v. Commercial Alliance Life Ins. Co. (1897) 154 N.Y. 95 [47 N.E. 968]; Davis v. Amma Grotto M.O.V.P.E.R. (1936) 169 Tenn. 564 [89 S.W.2d 754, 758, 106 A.L.R. 1506]; Langdeau v. Dick (Tex.Civ.App. 1962) 356 S.W.2d 945, 953, 958.)
Aurora seeks support in Caminetti v. Pacific Mut. Life Ins. Co., supra, 23 Cal.2d at page 98, for its argument that the insolvency date should be used as the date for valuing the assets to be distributed. Caminetti refers to July 22, 1936 (the insolvency date of Pacific Mutual) as "the date as of which their [the opting-out policyholders'] right to damages was fixed." But the Caminetti court did not consider the value of the insolvent estate subject to *419 liquidation distribution to the opting-out policyholders. Caminetti considered only "the proper measure of damages" resulting from the breach of the policies brought about by the insurer's insolvency. (23 Cal.2d at pp. 100-105, 108-110.) We find no discussion in Carpenter, either, of the issue of valuation date of the insolvent's assets for liquidation purposes. (See fn. 5, ante.)
Use of the insolvency date provides an unrealistic result because, in most situations, significant time will pass from the date of the conservation order to the actual liquidation or rehabilitation distribution. If the estate appreciates after the conservation order and straight liquidation is ultimately necessary (when a rehabilitation plan fails or when rehabilitation is not a viable alternative), valuing the estate as of the conservation date will not yield the total net value of the estate available for distribution to claimants. Conversely, if the estate value decreases after entry of the conservation order, valuation of the estate assets as of the date of the conservation order yields a value in excess of that actually available to claimants upon liquidation or rehabilitation distribution. In either case, a second valuation as of the distribution date would be required.
Calculation of the "liquidation" value of assets as of the distribution date of a rehabilitation plan is more functional. It pragmatically fixes total distributable asset value as of the very date the liquidation distribution is actually to occur. No second calculation is required to account for interim fluctuation in the value of the distributable assets.
Contemporaneous valuation of assets also is consistent with the method employed in the analogous area of bankruptcy. (8) Principles of bankruptcy law may be considered as instructive in the context of insurance insolvency where analogous procedures and issues are concerned. (Prudential Reinsurance v. Superior Court, supra, 3 Cal.4th 1118, 1131; Webster v. Superior Court (1988) 46 Cal.3d 338, 349, text and fn. 8 [250 Cal. Rptr. 268, 758 P.2d 596].)
In bankruptcy law, creditor claims are allowed in the amount owing "as of the date of the filing of the petition...." (11 U.S.C. § 502(b).) In chapter 11 proceedings, which are analogous to insurance rehabilitations, plans must provide each creditor with at least the amount he or she would receive if the *420 liquidation value of the estate assets were calculated on "the effective date of the plan...." (11 U.S.C. § 1129(a)(7).)[10]
(7b) The Commissioner's reliance upon section 1019 is also inconsistent with the other provisions controlling conservation and liquidation of an insolvent insurer.
The Commissioner is, pursuant to section 1057, the trustee of all the assets of the insolvent ELIC for the benefit of all ELIC "allowed" policyholder claimants. Pursuant to section 1025, the Commissioner, as rehabilitator, is under a duty to collect assets and distribute them ratably as between claimants within the same section 1033 claim priority. The plan breaches the Commissioner's fiduciary duty to distribute assets pro rata by relegating certain policyholders (opt-outs) to share a fund of lesser value than the fund to be shared by other policyholders (opt-ins) in the same creditor priority class.
The Commissioner and Aurora also contend that April 11, 1991, is the appropriate "liquidation" valuation date for the insolvent insurer's assets because, since that date, the efforts of the Commissioner have been directed toward effecting a rehabilitation plan providing continuation of policy benefits to ELIC policyholders and greater recovery than could have been realized in a straight liquidation pursuant to section 1016.
From this they argue that policyholders who elect not to participate in the section 1043 rehabilitation plan, which was formulated by the Commissioner and approved by respondent approximately 14 months after commencement of the conservation proceedings, are not entitled to share in the accumulated value of the insolvency estate during that period. Instead, the plan would treat policyholders who elect not to accept restructured insurance contracts as if no rehabilitation plan were ever effected. They are not permitted to share in either the benefits or the burdens of the rehabilitation.
In contrast, it is argued, policyholders who agree to accept restructured policies under the plan deserve to have their restructured policy benefits calculated on the basis of the total value of the estate as of the effective date of the rehabilitation plan (estimated to be approximately $2 to $3 billion greater than the April 11, 1991, value).
The problem with this rationale is that it assumes that policyholders had a choice at the time the assets of ELIC were taken over on April 11, 1991. The *421 fact is that, with very limited exceptions,[11] all ELIC policyholders were compelled to wait over 14 months while the rehabilitation plan was being formulated and offered for court approval. They are still waiting. It is only when the plan is known that policyholders can intelligently determine whether to opt in or opt out. In the meantime, all policyholders were subjected to the same risk that the ELIC estate would depreciate in value by the time a plan was formulated and approved. There is no rational basis to penalize policyholders who are dissatisfied with the eventual plan on the theory that they are ungrateful dissidents who bore no risk of depreciation of the estate and deserve no share of the accumulations.[12]
DISPOSITION
Let a peremptory writ of mandate issue directing respondent to vacate its order/judgment of July 31, 1992, and to proceed according to law.
The modified temporary stay order issued by this court on December 2, 1992, and modified on December 15, 1992, shall remain in effect until 10 days after the time for filing a petition for review has run.
Woods (A.M.), P.J., and Taylor, J.,[*] concurred.
A petition for a rehearing was denied April 16, 1993.
NOTES
[1] All statutory references are to the Insurance Code unless otherwise indicated.
[2] We refer to the April 11, 1991, date as the "insolvency date" (because the insolvency of ELIC was declared on that date) and as the "date of the conservancy order" or "conservancy date" (because the Commissioner was appointed conservator of the ELIC estate on that date).
[3] We refer to "petitioners" generally as including the eight banks that purchased the Muni-GIC's, the underwriters of those contracts, the holders of pension guaranteed investment contracts (Pension GIC's) and others who have petitioned for review based on the treatment of either type of GIC in the plan.
[4] There are many other reported decisions arising out of the insolvency of Pacific Mutual. (See cases collected in Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 736 [285 P.2d 636] (dis. opn. of Carter, J.).) The appellate plume flowing from the insolvency extended over two decades.
[5] Real parties argue that Carpenter recognizes the insolvency date as the date for valuation. But in Carpenter the conservancy order (under § 1011) and the rehabilitation order (under § 1046) were on the same date (10 Cal.2d at pp. 316, 317), and both were determined on appeal to have been voided by the subsequent disqualification of the judge who entered them. Months later, orders for conservation and insolvency were entered by the successor judge. (Id. at p. 319.) Carpenter does not discuss the date on which the assets of the estate should be valued.
[6] For that reason, this aspect of the plan is alternatively called the "look through" system. The plan uses the term "Nominated Account Value" to describe the aggregate account value established by the system, apparently on the theory that the amount paid for the municipal bonds, originally or on the secondary market, "nominates" (i.e., fixes) the amount to be used in the valuation formula.
[7] We note, also, that the Commissioner's position that bondholders are policyholders is inconsistent with the position taken by the Commissioner in Texas Commerce Bank v. Garamendi, supra, 11 Cal. App.4th at page 482. In that litigation, which was pending during the briefing in this case, the Commissioner put forward the rationale that Muni-GIC's did not qualify as annuities under section 101 because they were sold to banks and had no human annuitants. That position is inconsistent with the argument he now makes that the banks and the municipalities should be "looked through" to find the true annuitants the bondholders many of whom the Commissioner acknowledges to be individual persons.
[8] Because we hold that the municipal bondholders are not the Muni-GIC policyholders, we need not and do not address petitioner's additional contention that respondent had no jurisdiction to fix the value of underlying municipal bonds presently owned by bondholders who reside outside California and were not made parties to the underlying judicial proceedings.
[9] This is a proper assumption. The Commissioner's actuarial expert was of the opinion that the Muni-GIC's are not immediate annuities because they condition actual payment of guaranteed periodic payments upon a prior request by the owner. But the assumption that the benefits would be requested is manifest since the municipal entities will require these funds to service the bond interest debt and finance projects for which the bonds were issued in the first place.
The need to make basic actuarial assumptions is neither uncommon nor unreasonable. We note that under the implied rate method presented in the plan, it is necessary to make an actuarial assumption that the contract owner will not elect to surrender the contract prior to term.
[10] See Commissioner of Insurance v. Mass. Accident Co. (1943) 314 Mass. 558 [50 N.E.2d 801, 807, 811] (opt-outs in an insurance rehabilitation should have shares determined as of the approval date of the plan).
[11] The exceptions were for certain interim benefit payments and death benefits.
[12] Because of our conclusion that the insolvency date cannot be used in this case as the date to fix the value of the share of assets to be paid to opt-outs, we do not reach the further challenge that it is improper to base the value on the amount that could have been realized if the assets had to be sold on a "distress sale" basis within a 90-day period.
[*] Judge of Los Angeles Superior Court sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350908/ | 41 Cal. App. 2d 92 (1940)
ALHAMBRA TRANSFER & STORAGE COMPANY (a Corporation), Appellant,
v.
O. C. MUSE et al., Respondents.
Civ. No. 6390.
California Court of Appeals. Third Appellate District.
October 9, 1940.
H. S. Farrell and C. A. Lindeman for Appellant.
Chase, Barnes & Chase, Daniel P. Bryant and Thomas R. Suttner for Respondents.
Tuttle, J.
Plaintiff is a corporation organized under the name of the "Alhambra Transfer & Storage Company". It brought this suit in equity to enjoin the defendants, who are copartners, from using a like name in connection with the transfer and storage business carried on by them in the city of Alhambra, California. A general and special demurrer was interposed to the original complaint, and thereafter, plaintiff filed its amended complaint. Defendants demurred generally and specially to the amended complaint, and the court entered its order sustaining the demurrer without leave to amend. Judgment was thereafter rendered dismissing the action, and from that judgment plaintiff has prosecuted this appeal.
[1] Appellant urges as grounds for appeal that the trial court erred in two particulars, first: in sustaining its demurrer to the original complaint; and second: in sustaining its demurrer to the amended complaint. As to the first ground relied upon, we are of the opinion that it is without merit, for the reason that by amending his complaint after demurrer was sustained, plaintiff waived the error, if any, in the ruling of the court. This has been the settled law in California for many years, and the rule will be found laid down in the case of Ganceart v. Henry, 98 Cal. 281, 283 [33 P. 92]. In the later case of Pearson v. Parsons, 173 Cal. 336 [159 P. 1173], it was held that: "Having thus gone to trial on the complaint as amended, the plaintiff must be *94 deemed to have waived the objection that the demurrer was improperly sustained." In that case plaintiff attempted to predicate error on the part of the trial court in sustaining a demurrer to the original complaint. The same ruling is followed in Carter v. Canty, 28 Cal. App. 323 [152 P. 312].
Taking up the demurrer to the amended complaint, the allegations of the latter are substantially as follows: That plaintiff is a corporation organized under the laws of the state of California, and has its principal place of business in Alhambra, California. It appears from the second paragraph of the complaint that while plaintiff was at one time engaged in the warehouse and storage business, it was not, at the time the complaint was filed, engaged in such business. In its opening brief plaintiff admits that it is not engaged in the transfer and storage business, but that it is a real estate holding corporation, and does not compete in any manner with the business conducted by defendants. Continuing further with the allegations of the complaint, it is alleged that defendants are engaged in the transfer and storage business, and have their principal place of business directly across the street from the office and warehouse of plaintiff; that defendants are unlawfully using the corporate name of plaintiff, and have conducted their business under such name since 1933; that said defendants operate large vans and trucks, upon which the corporate name appears, and they display the corporate name upon their letterheads and billheads, in the city directory, in the telephone directory, and other advertising matter; that defendants are using said name for the sole purpose of deceiving the general public and leading them to believe and understand that they are dealing with this plaintiff; that by reason of the foregoing facts, claims of various kinds are liable to arise, and litigation is liable to follow as a result thereof, and thus, plaintiff's title to its various properties is liable to be clouded; that it is impossible to estimate the amount of damage that might arise and be suffered by plaintiff by reason of the acts of defendants set forth above; that plaintiff, in the defense of said action, must employ an attorney, and that the reasonable compensation for such attorney would be $3,000. Plaintiff prays that the defendants be permanently enjoined from using its corporate name; and it also asks judgment for $3,000 damages. *95
In cases of this character involving the use by one corporation or partnership, of the name of another corporation or partnership, there are two theories upon which a recovery may ordinarily be had. One of these is for the invasion of an exclusive trade-mark, and the other is based upon the common-law doctrine of unfair trade dealing or unfair competition. We are of the opinion that both of these questions are disposed of adversely to the contention of appellant in the case of R. H. Dunston v. Los Angeles Van & Storage Co., 165 Cal. 89 [131 P. 115]. There the plaintiff, in 1902, incorporated his business under the name of "Los Angeles Van, Truck & Storage Company". In 1910, defendants started up a business similar to that of plaintiff, under the name of "Los Angeles Van & Storage Company". Plaintiff brought the action to enjoin the defendants from using the name of "Los Angeles Van & Storage Company". The trial court granted the injunction sought by plaintiff, and on appeal, that judgment was reversed. It was held that the trade name used by plaintiff was not susceptible of exclusive use, and therefore could not be protected as an exclusive trade-mark or name. In deciding this question the court goes on to say:
"But, second, and more important, is the fact that the trade name used by plaintiff is not susceptible under our law of exclusive use, and, therefore, of protection as an exclusive trademark or name. This proposition is completely covered by section 991 of our Civil Code, which declares: 'One who ... conducts a particular business ... cannot exclusively appropriate any designation, or part of a designation, which relates only (a) to the name ... or (b) the description of the ... business, or (c) to the place where the ... business is carried on.' It is too apparent to need discussion that the name here employed by plaintiff has reference in its first words to the place of business; in the remaining words to a description of the business. Such names, titles or designations are not the subject of exclusive copyright or trademark. (Eggers v. Hink, 63 Cal. 445, [49 Am. Rep. 96]; Schmidt v. Brieg, 100 Cal. 672, [22 L.R.A. 790, 35 P. 623]; Castle v. Siegfried, 103 Cal. 71, [37 Pac. [210] 211]; Hainque v. Cyclops Iron Works, 136 Cal. 351, [68 P. 1014]; American Wine Co. v. Kohlman, 158 Fed. 830.)"
[2] In our opinion, the name of plaintiff corporation, "Alhambra Transfer & Storage Company", comes directly *96 within the provisions of section 991 of the Civil Code, in that it relates only to the name or the description of the business, or the place where the business is carried on. It therefore follows that the name is not entitled to protection as an exclusive trade name.
[3] With reference to the second theory mentioned, that of unfair trade dealing, it first should be pointed out that plaintiff and defendants are not engaged in competitive enterprises, or in competitive businesses. This is clearly indicated in the opening brief of appellant, where he states: "We assume that the judgment of dismissal herein might well be construed as one on the merits, barring a subsequent action on the same or a similar state of facts. But even were this not the case, it would doubtless be futile to file an action in the same trial court, where it would be viewed as one for unfair competition, which the facts do not justify." In another portion of the same brief, appellant states: "As to unfair competition, the foregoing paragraph II (of the complaint) is probably fatal, in that there is no direct allegation, and indeed, the facts do not justify such an allegation, that plaintiff is now engaged in the general transfer, storage and warehouse business." In appellant's reply brief it concedes that the question of unfair competition is not before the court.
[4] Summarizing the situation, we thus have before us for decision the question whether or not a partnership which appropriates the name of an existing corporation can be enjoined from using that name for the sole reason that confusion might arise with reference to actions which might be brought, or in connection with the title to real property.
The Dunston case above referred to may again be relied upon as authority to the effect that the use of an identical name will not be enjoined in the absence of fraud and deceit upon the public and the customers of plaintiff,--in other words, where there is no competition in business between the parties. It was held in that case that since plaintiff had no exclusive property right by way of trade-mark in the use of the name, it follows that the mere similarity of names does not establish fraud, and that there must be such a misuse of the name by advertising and soliciting as amounts to fraud, and which would tend to deceive prospective purchasers and customers of plaintiff. Continuing in its discussion of this question, the court goes on to say: "As the judgment cannot *97 thus be supported upon the theory of an invasion of an exclusive right to property in a trade-mark, the only ground for the support of the judgment is that which has come to be known as 'unfair trade dealing'. This is but a succinct statement of the principle that in the interest of fair commercial dealing courts of equity, where one has been first in the field doing business under a given name, will protect that person to the extent of making competitors use reasonable precautions to prevent deceit and fraud upon the public and upon the business first in the field. (Spieker v. Lash, 102 Cal. 38, [36 P. 362]; Waltham Watch Co. v. United States Watch Co., 173 Mass. 85, [73 Am. St. Rep. 265, 43 L.R.A. 826, 53 N.E. 141]; Shaver v. Shaver, 54 Iowa, 208, [37 Am. Rep. 194, 6 N.W. 188]; Newman v. Alvord, 51 N.Y. 189, [10 Am. Rep. 588].) But, as has been intimated, relief in such cases really rests upon the deceit or fraud which the later comer into the business field is practicing upon the earlier comer and upon the public. Like all other kinds of fraud and deceit this is not presumed but must be pleaded and shown. ... The fact that confusion to the business of plaintiff has resulted from acts not in themselves illegitimate, of itself affords no ground of relief."
Referring to unfair competition arising out of one concern adopting the trade name of another, the general rule is stated in 63 C.J., page 389, section 100, to be as follows: "The doctrine is usually invoked when there is an actual market competition between the analogous products of plaintiff and defendant." Here, plaintiff is engaged in the real estate business, while defendants are engaged in the transfer and storage business. Under such circumstances the customers of plaintiff cannot be deceived. The most that can be said is that some confusion will result by the use of the same name. This is an every-day occurrence with individuals, and as stated in the Dunston case, it affords no ground for relief.
Appellant places some faith in section 291 of the Civil Code, which provides in part as follows:
"The Secretary of State shall not file articles which set forth a name which is likely to mislead the public, or which is the same as, or resembles so closely as tends to deceive. ... The use by a corporation of a name in violation of this section may be enjoined notwithstanding the filing of its articles by the Secretary of State." *98
We are of the opinion that this section does not govern the situation here. In the first place it refers to a controversy between two corporations which have filed their articles with the secretary of state, while here, we have only one corporation, the plaintiff, the defendants being a partnership. If two corporations should be permitted to file articles of incorporation, each using the same corporate name, the remedy provided by the last-named section would be available to the corporation which had priority in the filing of its articles. We do not believe, however, that the remedy provided for in said section is available to the plaintiff under the circumstances of this case.
From what has been said, and from the authorities cited, it is quite clear that appellant's amended complaint failed to state a cause of action. It is therefore ordered that the judgment be, and it is hereby, affirmed.
Paulsen, J., pro tem., and Thompson, Acting P. J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350930/ | 208 Ga. App. 431 (1993)
430 S.E.2d 765
THE STATE
v.
RUSTIN.
A92A2124.
Court of Appeals of Georgia.
Decided April 2, 1993.
W. Fletcher Sams, District Attorney, Tarey B. Schell, Assistant District Attorney, for appellant.
James M. Kimbrough III, for appellee.
BLACKBURN, Judge.
Thomas Milton Rustin was charged with driving under the influence of alcohol. After his first conviction in the probate court was reversed in Rustin v. State, 192 Ga. App. 775 (386 SE2d 535) (1989), he requested a jury trial and the case was transferred to the superior court. Rustin then moved to dismiss on the ground that the prosecution *432 was barred by the statute of limitation. The court granted this plea in bar, and the state appeals.
On September 30, 1988, Rustin was issued a uniform traffic citation and complaint charging him with having committed on the same date the offense of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1). Rustin was convicted of DUI in the probate court in November 1988 and the conviction was affirmed in the superior court, but in Rustin, supra at 776-777 (2), this court reversed the conviction because the record contained no written waiver of Rustin's right to have a jury trial. (That holding in Rustin was later disapproved by the Supreme Court in Nicholson v. State, 261 Ga. 197, 200 (6) (403 SE2d 42) (1991), in which it was held that in the absence of a timely objection to proceeding in the probate court, the right to jury trial is waived.) Upon remand, Rustin requested a jury trial, and the case was transferred from the probate court to the superior court.
Pursuant to OCGA § 40-13-3, Rustin's case could not be tried in the superior court without a formal accusation, and for that reason, on November 19, 1991, the state filed an accusation against Rustin charging him with driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)). However, the accusation also charged Rustin with a new offense, i.e., driving with an unlawful blood alcohol level (OCGA § 40-6-391 (a) (4)). Both counts were based upon the same September 30, 1988, events that were the basis of the uniform traffic citation on which he had been prosecuted in the probate court. Rustin moved to have the case dismissed, contending that the accusation had been filed more than two years after commission of the crimes and therefore was barred by the two-year statute of limitation for misdemeanors contained in OCGA § 17-3-1 (d). The superior court orally granted the plea in bar at a hearing on May 12, 1992. The state filed a notice of appeal on May 28, 1992, and on July 24, 1992, the superior court entered a written order granting the plea and dismissing the prosecution. The appeal was docketed in this court on July 28, 1992.
1. Rustin contends that this appeal must be dismissed because the state filed its notice of appeal before the judgment was entered. We disagree, as even though the premature notice of appeal was "erroneous and not in accordance with statutory command," we "reluctantly" will "review the case on its merits rather than dismiss it." Sharp v. State, 183 Ga. App. 641 (1) (360 SE2d 50) (1987).
2. The state contends that the superior court erred in granting Rustin's plea in bar. We agree with the state's position with regard to the violation of OCGA § 40-6-391 (a) (1) which was originally charged on September 30, 1988, but not as to the violation of OCGA § 40-6-391 (a) (4) which was initially charged in the accusation filed on November 19, 1991.
OCGA § 17-3-1 (d) provides that prosecution for misdemeanors *433 must be commenced within two years after commission of the crime. A prosecution is "commenced" when an accusation or indictment is filed, and continues until final disposition of the case on appeal. OCGA § 16-1-3 (14); Smith v. State, 190 Ga. App. 246 (378 SE2d 493) (1989). A DUI charge may be prosecuted in a probate or state court on a uniform traffic citation, which constitutes the accusation. OCGA §§ 40-13-1; 40-13-3; Boss v. State, 152 Ga. App. 169 (262 SE2d 527) (1979). Thus, Rustin's prosecution in the probate court for the DUI charge alleging a violation of OCGA § 40-6-391 (a) (1) was commenced when he was issued the uniform traffic citation and complaint on September 30, 1988. The filing of a formal accusation in any court with jurisdiction over such offenses, other than a superior court, would have been a superfluity. See Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985).
The trial court's grant of Rustin's plea in bar resulted out of consideration of the passage of time from the date of the alleged offenses and the date of the formal accusation filed on November 19, 1991, following this court's remand of the case because of the absence of a written waiver of the right to a jury trial. In Duncan v. State, 193 Ga. App. 793 (389 SE2d 365) (1989), this court held that the limitation period was not tolled during the pendency of a prior appeal, and that prosecution of the defendant under a subsequent formal accusation (which added a charge of simple battery) filed after the expiration of the limitation period was barred. However, prosecution of the defendant under the uniform traffic citation was still allowed, although the prosecution was limited to the offenses originally charged in that traffic citation. The same principle is applicable in the instant case.
Upon remand of this case to the probate court, Rustin exercised his right to a jury trial, and the case was necessarily bound over to the superior court. Consequently, the state was then compelled to file a formal accusation because a uniform traffic citation and complaint cannot be made the basis for a trial in the superior court. OCGA § 40-13-3; Stone v. State, 151 Ga. App. 531 (260 SE2d 405) (1979). The prior appeal in this case did not result in a final disposition of the matter, and filing of the formal accusation in November 1991, as required by OCGA § 40-13-3 and as necessitated by Rustin's demand for a jury trial, in no way constituted commencement of a new prosecution with regard to the alleged violation of OCGA § 40-6-391 (a) (1). Under the circumstances presented by this case, although the filing of the accusation in the superior court could not be considered a superfluity because of the requirements of OCGA § 40-13-3, it must be regarded as a continuation of the prosecution previously commenced. For that reason, the trial court erred in granting Rustin's plea in bar with regard to the charged violation of OCGA § 40-6-391 (a) (1).
*434 However, the accusation filed in November 1991 also included a new offense, i.e., an alleged violation of OCGA § 40-6-391 (a) (4), driving with an unlawful blood alcohol level. Because that accusation was filed beyond the applicable limitation period, prosecution of this new offense was barred, notwithstanding the fact that it may have stemmed from the same conduct as the original DUI charge. Accordingly, the trial court properly granted Rustin's plea in bar with regard to the alleged violation of OCGA § 40-6-391 (a) (4). Duncan v. State, supra.
The state contends that inclusion of the alleged violation of OCGA § 40-6-391 (a) (4) in the November 1991 accusation was a permissible amendment, authorized by OCGA § 17-7-71 (f), of the original uniform traffic citation prepared pursuant to OCGA § 40-13-1 and the Rules of Department of Safety, Section 570-19-01. See generally Freeman v. State, 194 Ga. App. 905 (8) (392 SE2d 330) (1990), wherein a second formal accusation prepared pursuant to OCGA § 17-7-71 (a), alleging simple assault, amended the original accusation which also alleged simple assault. The issue of amendment of uniform traffic citations by formal accusation under OCGA § 17-7-71 (f) was not raised or addressed in Duncan v. State, supra.
OCGA § 17-7-71 (f) provides that "[p]rior to trial, the prosecuting attorney may amend the accusation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation." For the reasons that follow, we find that this statute applies to and authorizes amendment of formal accusations, and not uniform traffic citations which may only be used to prosecute traffic offenses.
Finding that OCGA § 17-7-71 (f) relates to the preparation and amendment of formal accusations, and not uniform traffic citations, is supported by reference to the statutory and regulatory basis for the creation and implementation of the uniform traffic citation. OCGA § 40-13-1 and Section 570-19-.01 of the Rules of Department of Public Safety specifically provide that the uniform traffic citation was devised for use by law enforcement officers to enforce the traffic laws and ordinances of this state. The form for the uniform traffic citation prescribes the use of a single citation per offense charged, which is inconsistent with amendment to add other related charges as allowed by OCGA § 17-7-71 (f). Further, the uniform traffic citation requires only the signature of the police officer where it is used as the prosecuting vehicle.
The formal accusation contemplated under OCGA § 17-7-71 (a), however, must be signed by the prosecuting attorney of the court; has no detailed, prescribed form; can include multiple counts; and can be used for any misdemeanor prosecution. While OCGA § 17-7-71 (a) *435 generally provides for trial of misdemeanor offenses upon an accusation, OCGA § 17-7-71 (b) makes specific provision for use of the uniform traffic citation to prosecute "all misdemeanor cases arising out of violations of the laws of this state, relating to ... the operation and licensing of motor vehicles and operators. ..."
The import of these statutory and regulatory provisions is that a uniform traffic citation and complaint may serve as an accusation only for traffic offenses, and may neither be used to prosecute non traffic offenses nor amended to add such pursuant to OCGA § 17-7-71 (f). In view of that limitation upon the use of uniform traffic citations, OCGA § 17-7-71 (f) must envision amendments to formal accusations, and not uniform traffic citations.
Judgment affirmed in part, reversed in part. McMurray, P. J., and Cooper, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350939/ | 208 Ga. App. 324 (1993)
430 S.E.2d 775
LAM
v.
THE STATE.
A92A1925.
Court of Appeals of Georgia.
Decided March 17, 1993.
Reconsideration Denied April 1, 1993.
Gammon & Anderson, W. Wright Gammon, Jr., John E. Sawhill III, for appellant.
Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.
POPE, Chief Judge.
Defendant Thomas H. Lam, Jr., was charged in a multi-count indictment with violation of the Georgia RICO (Racketeer Influenced & Corrupt Organizations) Act (Count 1), eleven counts of theft by taking (Counts 2-13) and three counts of forgery in the first degree (Counts 14-16). The trial court, sitting without a jury, granted defendant's motion for directed verdict on Counts 2 through 13 (the theft by taking charges) and on Count 15 (one of the forgery charges), and returned a verdict of guilty on Counts 1, 14 and 16. Defendant appeals.
1. Defendant first challenges the sufficiency of the evidence to support his conviction on Counts 14 and 16. The evidence adduced at trial concerning Count 14 shows that defendant, acting without authority, endorsed a check made payable to his then employer, Bill Fricks Furniture as follows: "Bill Fricks to Thomas H. Lam deposit," deposited the check into his personal account and appropriated the funds for his own use. As to Count 16, the evidence adduced at trial shows that defendant, acting without authority, endorsed a check made payable to Bill Fricks Furniture as follows: "Bill Fricks Furniture deposit T H Lam," deposited the check into his personal account and appropriated the funds for his own use. The evidence was sufficient to authorize defendant's conviction of the crimes charged. McBride v. State, 202 Ga. App. 556 (415 SE2d 13) (1992); Dyous v. State, 195 Ga. App. 99 (392 SE2d 730) (1990); Gaily v. State, 181 Ga. App. 906 (1) (354 SE2d 442) (1987); cf. Morgan v. State, 77 Ga. App. 164 (48 SE2d 115) (1948).
2. In his second and third enumerations of error, defendant posits that the trial court erred by admitting into evidence transcripts from certain bankruptcy and civil court proceedings without first determining whether defendant's testimony, including certain admissions made by the defendant as to the crimes for which he was on trial in the present case, was voluntarily given in those proceedings. The record shows that when the State sought to introduce the transcript of the civil court proceedings the defendant raised the following objections: the evidence could be used for impeachment only; the evidence was without probative value; at the time the testimony was given criminal charges had not been brought against the defendant; the earlier proceedings involved different parties; the State did not give the defendant notice of intent to use the statements at trial; and defendant was not given Miranda warnings prior to the testimony in the earlier proceedings. When the State sought to introduce the defendant's testimony from the bankruptcy proceedings, defendant reiterated his prior objections and raised as an additional objection the fact *325 that the State sought to introduce only a portion, instead of the entire transcript, of those proceedings. However, defendant did not request that the trial court conduct a hearing to determine the voluntariness of the prior testimony, or urge that the evidence should be excluded because no hearing was held. "[T]here is no constitutional requirement that the trial court conduct, sua sponte, a Jackson v. Denno hearing on voluntariness. ..." Hudson v. State, 250 Ga. 479, 485 (6) (299 SE2d 531) (1983). "The trial court was not required to conduct a ... hearing or enter findings as to whether defendant's statement was voluntarily made since such issues were not raised before the trial court, but were raised for the first time on appeal. [Cits.]" Yearby v. State, 195 Ga. App. 757, 758 (3) (395 SE2d 29) (1990). See also Nixon v. State, 255 Ga. 656, 658 (2) (a) (340 SE2d 7) (1986). See generally United States v. White, 589 F2d 1283 (5th Cir. 1979); United States v. Vecchiarello, 569 F2d 656 (D.C. Cir. 1977); United States v. Cecil, 457 F2d 1178 (8th Cir. 1972) (in which civil trial or deposition testimony was held to be admissible in a subsequent criminal proceeding).
3. Defendant also urges that OCGA § 17-7-210 should be extended to cover statements made by a defendant while testifying under subpoena. That section, however, clearly applies only to statements "made by [a] defendant while in police custody." Shelton v. State, 196 Ga. App. 163 (3) (395 SE2d 618) (1990); OCGA § 17-7-210 (a). It is not the function of this court to rewrite the laws enacted by our General Assembly. This enumeration is without merit.
4. Defendant challenges the sufficiency of the evidence as to his conviction for violating the RICO Act, contending that there was a complete failure of proof as to all 85 of the predicate acts charged in the indictment. A RICO conviction requires proof that a defendant has committed two or more offenses of the kind included in the RICO statute; it does not require the State to prove all of the alleged predicate offenses. Bethune v. State, 198 Ga. App. 490 (1) (402 SE2d 276) (1991). Our review of the transcript in this case shows that the evidence was sufficient to enable a rational trier of fact to find defendant guilty of two or more of the predicate offenses charged beyond a reasonable doubt. See id.; Dover v. State, 192 Ga. App. 429 (1) (385 SE2d 417) (1989). This enumeration is without merit.
5. Defendant asserts for the first time on appeal that his trial counsel was ineffective. The record shows that trial counsel filed the notice of appeal in this case and that appellate counsel was appointed or retained during the pendency of the appeal. Because that issue was raised at the first opportunity, it is appropriate that this case be remanded to the trial court for a hearing and entry of appropriate findings of fact of the issue of ineffective assistance of counsel. Hayes v. State, 261 Ga. 439 (5) (405 SE2d 660) (1991); Brown v. State, 199 Ga. *326 App. 856 (1) (406 SE2d 516) (1991), and cits.
6. Lastly, defendant contends he was denied his right to a fair trial because prior to the commencement of his bench trial the trial judge received correspondence from defendant's trial attorney notifying the court of defendant's willingness to enter a guilty plea. Although defendant attaches copies of these letters to his brief to this court, they do not appear in the record and thus are not properly before this court for consideration. See, e.g., Taylor v. State, 197 Ga. App. 678, 680 (399 SE2d 213) (1990). We note also that the correspondence apparently was sent to the court by defendant's own attorney and that no motion was made to recuse or disqualify the judge from hearing the case based on any alleged prejudice that may have resulted from his receipt of the correspondence. See Lynott v. State, 198 Ga. App. 688, 689 (3) (402 SE2d 747) (1991). This enumeration is without merit.
Judgment affirmed and case remanded with direction. Johnson, J., and Justice George H. Carley concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350933/ | 208 Ga. App. 185 (1993)
430 S.E.2d 360
LEGUM et al.
v.
CROUCH et al.
DESAI
v.
CROUCH et al.
GWINNETT COUNTY HOSPITAL AUTHORITY
v.
CROUCH et al.
PARIKH
v.
CROUCH et al.
A92A2057, A92A2058, A92A2059, A92A2060.
Court of Appeals of Georgia.
Decided March 8, 1993.
Reconsideration Denied March 25, 1993.
Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, J. Ralph Beaird, Milton F. Eisenberg II, for appellants (case no. A92A2057).
Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., A. Spencer McManes, Jr., for appellant (case no. A92A2058).
Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, David A. Sapp, Glenn E. Kushel, for appellant (case no. A92A2059).
Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Rolfe M. Martin, Robert J. Higdon, Jr., for appellant (case no. A92A2060).
David W. Boone, Leigh M. Smith, Margaret A. McDermott, Richard T. Alexander, Jr., Dover & Sexton, Jonathan P. Sexton, Davis, Gregory & Christy, Hardy Gregory, Jr., for appellees.
BIRDSONG, Presiding Judge.
This is an interlocutory review of the order of the trial court denying various motions of appellant/defendants to dismiss the complaint, and motions for summary judgment, based upon appellee/plaintiffs' failure to comply with the affidavit requirements of OCGA § 9-11-9.1 (a).
On July 22, 1991, appellee Marie Crouch filed a complaint averring a wrongful death claim as the widow of the deceased husband and averring a medical malpractice claim as the administratrix of the deceased's estate. It was averred, inter alia, that the various appellant doctors were negligent in failing to timely diagnose deceased's lung cancer. Mr. Crouch died on March 6, 1991; on June 3, 1991, appellee was appointed as administratrix of Mr. Crouch's estate; until that time the estate was without representation. The claims against appellant Gwinnett Medical Center (hospital authority) provided adequate CPA notice solely as to claims of liability based upon the doctrine of respondeat superior for the averred medical negligence (malpractice) of two radiologists. No expert affidavit was filed contemporaneously with this complaint; however, in the complaint, it was averred that the claims were within ten days of the applicable statute of limitation and, accordingly, appellees attempted to invoke therein the 45-day filing delay provisions of OCGA § 9-11-9.1 (b). Appellants filed motions to dismiss and/or motions for summary judgment asserting noncompliance with the affidavit requirements of OCGA § 9-11-9.1 (a). Appellees filed an amended complaint within the 45-day delay period by filing an expert's affidavit with attached medical records. The trial court denied appellants' motions to dismiss and motions for summary judgment. Held:
1. Appellant hospital authority asserts that because the claims averred against it are based solely on its liability under the doctrine of respondeat superior for acts of malpractice committed by two doctors performing duties as radiologists, therefore medical affidavits were required to be filed in support of these claims pursuant to OCGA § 9-11-9.1, notwithstanding the hospital authority is not a professional within the meaning of said statute. OCGA § 9-11-9.1 (a) *186 pertinently provides that "[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert." In Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720), it was held that where professional skill and judgment are not involved, an affidavit under OCGA § 9-11-9.1 is not necessary. In the case at bar it appears that all of the claims adequately averred against the hospital authority were grounded upon the authority's liability for the acts and omissions of its agents and employees under the doctrine of respondeat superior. Moreover, these acts or omissions, as averred in the complaint, required the exercise of some form of medical skill and judgment on the part of the two agents or employees concerned who were, at that time, medical doctors. (Additionally, no claim based on simple negligence, which per se would not require a supporting affidavit, has been averred in the complaint against any of the appellants.)
In Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197), it was concluded that "the legislature intended for the term `professional' as used in OCGA § 9-11-9.1 to be defined by OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24.... [T]herefore ... the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24." This holding was further clarified in Lamb, supra at 72 (2), which recognized that Gillis, supra, held that the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2); and 43-1-24.
Thereafter, the Supreme Court concluded in Lamb, supra at 72, "[i]nsofar as [appellant's] complaint alleges negligence against the hospital for supplying defective equipment for use in treating its patients, the case is not one against a `professional' or involving `professional malpractice.' Therefore, OCGA § 9-11-9.1 is inapplicable and no affidavit is required." (Emphasis supplied.) The essence of this holding appears to be that an appropriate affidavit is required not only when a particular claim is against a "professional" but also when a particular claim is grounded upon "professional malpractice," that is, an act or omission caused by a "professional" which constitutes malpractice. However, as the hospital authority is not classified as such a "professional," the affidavit requirement does not apply automatically as to any claim asserted against it. Greene County Hosp. Auth. v. Turner, 205 Ga. App. 213 (421 SE2d 715) and Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202 (421 SE2d 713). Rather, the affidavit requirement applies regarding tort claims filed against a hospital not only when averred liability is based upon the doctrine of respondeat superior but when it is further grounded upon the additional averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are *187 recognized as "professionals" under OCGA §§ 14-7-2 (2); 14-10-2 (2); or 43-1-24. Compare Thornton v. Ware County Hosp. Auth., supra, with Greene County Hosp. Auth. v. Turner, supra. See Lamb, supra at 72 (2).
Thus, to the extent that a complaint avers claims of hospital liability, based on the doctrine of respondent superior, arising from acts or omissions constituting malpractice by doctors, registered professional nurses, or other "professionals," as recognized by said statutes, an appropriate affidavit, as defined in Thornton, supra, at 203, is required under OCGA § 9-11-9.1. Greene County Hosp. Auth., supra. However, to the extent that a complaint avers claims based on the acts or omissions of agents or staff employees who are not "established" by the movant hospital as qualifying as professionals under Gillis, supra, no supporting affidavit would be required and those claims could not be dismissed or summary judgment granted for want of an affidavit. (Compare Greene County Hosp. Auth., supra at 214.) As, in this case, the authority's liability under respondeat superior is based solely on averments of acts or omissions of medical malpractice by agents or employees thereof who are shown to be "professionals," as above defined, an appropriate medical affidavit was required to be filed, in accordance with OCGA § 9-11-9.1, in support of the claims against the authority. Compare Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (424 SE2d 632). However, the question remains as to when the affidavit was required to be filed regarding the claims against appellants.
2. Pursuant to the provisions of OCGA § 9-3-71, the two-year statute of limitation for wrongful death cases emanating from medical malpractice, such as the wrongful death averments in this case, begins to run from the date of death, not from the negligent act or omission of the practitioner. See generally Hart v. Eldridge, 250 Ga. 526 (299 SE2d 560); Clark v. Singer, 250 Ga. 470 (298 SE2d 484). Thus, the statute of limitation as to all wrongful death claims averred in the complaint would not expire until March 6, 1993, and appellee could not invoke the 45-day grace period of OCGA § 9-11-9.1 (b) based on the averments of these claims on behalf of the deceased's widow. Accordingly, we must next examine whether the 45-day grace period nevertheless could be invoked as to this case based on the medical malpractice claims averred on behalf of the estate (see generally OCGA § 9-11-9.1 (b)).
3. Assuming without deciding that the statute of limitation applicable to every medical malpractice claim averred on behalf of the estate normally would have expired within ten days of the filing of the complaint, the question remains whether in the case at bar the statute of limitation was tolled by operation of law by OCGA § 9-3-92 for a period of 89 days, so that in legal effect the complaint was filed *188 more than ten days before the expiration of any applicable statute of limitation (OCGA § 9-3-73). If the statute of limitation was so tolled, appellees could not then avail themselves of the 45-day delay provision of OCGA § 9-11-9.1 (b).
OCGA § 9-3-92 pertinently provides that: "The time between the death of a person and the commencement of representation upon his estate ... shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years." "This court has generally held that, unless the context clearly indicates otherwise, the word `shall' is to be read as a word of command." Dept. of Medical Assistance v. Llewellyn, 197 Ga. App. 231 (1) (398 SE2d 256). The context of this statute is clear and unequivocal. By use of the word "shall," the legislature intended to provide and did provide that the tolling calculation therein provided was mandatory in every instance where the statute was applicable; that is, tolling occurs by operation of law to the extent provided by the statute. Any other conclusion would lead to the absurd result that estates could sporadically invoke the tolling provisions for their exclusive benefit and to the unnecessary detriment of opponents in litigation thereby resulting in different limitation periods applying under identical fact patterns. "In construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If[, as in this case,] the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry." Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227). The terms of this statute are plain and reasonable in consequences, the tolling provision is triggered by operation of law and not by the unilateral act of the legal representative of an estate. Furthermore, statutes should be construed in pair material with other statutes to which they relate and courts should strive to give meaningful effect to the purpose of these statutes. See Ga. Marble Co. v. Whitlock, 260 Ga. 350, 354 (1) (392 SE2d 881). It would thwart the legislative propose of OCGA § 9-11-9.1 (b) to construe OCGA § 9-3-92 in such a manner as to allow appellees a right to manipulate their entitlement to the otherwise strictly limited 45-day delay provisions of OCGA § 9-11-9.1 (b) by unilaterally declining to invoke the tolling benefits of OCGA § 9-3-92. Conversely, by interpreting OCGA § 9-3-92 in pair materia with OCGA § 9-11-9.1 (b), we find that it is both fundamentally fair and statutorily compatible to conclude that the tolling provisions of OCGA § 9-3-92 are triggered by operation of law.
Appellees, citing inter alia, the descriptive heading or catch line of OCGA § 9-3-92 and the case of Lazenby v. Ware, 178 Ga. 463 (173 S.E. 86), assert the tolling provision of OCGA § 9-3-92 is not triggered by operation of law, but can only be invoked on a case-by-case basis *189 and in benefit of the estate by its legal representative. The descriptive heading or catch line immediately preceding the text of a Code section does not constitute a part of such statute and is not controlling regarding the construction or interpretation thereof. OCGA § 1-1-7; compare Brown v. Earp, 261 Ga. 522 (407 SE2d 737); Walker v. State, 199 Ga. App. 701 (405 SE2d 887). Moreover, Lazenby, supra, and State Farm &c. Co. v. Pace, 176 Ga. App. 737 (337 SE2d 401) are distinguishable from this case and likewise are not controlling. Lazenby, supra at 463 (3), provides that the tolling provision of the statute does not apply in favor of heirs at law who elect to sue in their own right; the remaining language in Division 3 of Lazenby is dicta and merely establishes that such heirs at law cannot invoke the automatic tolling provisions of the statute in their own suits, albeit for purposes ostensibly beneficial to and in behalf of the estate, as it is only in suits legitimately prosecuted or defended in behalf of the estate by its legal representative that the estate can lay claim to a benefit flowing from this tolling provision. Likewise, Pace, supra at 738, merely holds that OCGA § 9-3-92 is inapplicable to appellees "as individuals suing as heirs at law" of an estate. Such is not the situation in this case. Neither Lazenby nor Pace prohibits appellants from gaining the benefit of the automatic tolling provision of OCGA § 9-3-92 in their defense of the suit brought against them by the estate. Statutes of limitation are not intended to operate solely for the benefit of the party in whose favor they have run, but are also for the public good (Bank of Jonesboro v. Carnes, 187 Ga. 795, 799 (2 SE2d 495)); this rationale is equally applicable to statute of limitation tolling provisions.
In view of the above, we conclude that appellants are correct in their claim that appellees were not entitled to invoke the 45-day delay provisions of OCGA § 9-11-9.1 (b), as the applicable statute of limitation would not expire as to any of appellees' averred claims, within ten days of the date of filing of the complaint. In view of this holding, we need not address appellants' remaining assertions in support of their enumerations of error.
4. Appellee Crouch refers in her brief to certain "constitutional issues" allegedly raised before the trial court, and asserts that "by this reference, these arguments and citations of authority are incorporated herein and hereby preserved." These matters currently are not before this court for adjudication; appellee elected not to file timely notice of cross-appeal, together with appropriate enumerations of error, as was necessary to raise these issues for appellate consideration during this interlocutory review. We express no advisory opinion (Board of Trustees &c. v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720)) whether these constitutional issues have been adequately raised and preserved before the trial court in the event of a future direct *190 appeal or cross-appeal thereto.
In view of the holdings in Divisions 1-3 above, we conclude the trial court erred in denying appellants' motions to dismiss (as converted by consideration of matters outside the pleadings to motions for summary judgment) and motions for summary judgment, as appellees were required to file the expert affidavit in accordance with OCGA § 9-11-9.1 (a) and could not utilize the 45-day delay provision of OCGA § 9-11-9.1 (b). Compare Kalustian v. McDonald, 194 Ga. App. 435 (390 SE2d 657); see Foskey v. Foster, 199 Ga. App. 205 (404 SE2d 303). Further, the authority cited by appellees, as to the various errors herein discussed, is not deemed to be controlling. Accordingly, judgments shall be reversed and the cases remanded to the trial court for appropriate disposition consistent with this opinion.
Judgments reversed and remanded with direction. Beasley and Andrews, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1350934/ | 41 Cal. App. 2d 275 (1940)
THE PEOPLE, Respondent,
v.
SAM ALEXANDER, Appellant.
Crim. No. 1730.
California Court of Appeals. Third Appellate District.
October 26, 1940.
A. M. Mull, Jr., and Lawrence G. Dorety for Appellant.
Earl Warren, Attorney-General, and J. Q. Brown, Deputy Attorney-General, for Respondent.
Pullen, P. J.
Defendant was convicted of an assault with intent to commit murder, and from the judgment of conviction and the order denying a new trial, this appeal is taken. For reversal it is urged that the evidence is insufficient to justify a conviction of an assault with intent to commit murder; that the court erred in excluding certain evidence; in giving and refusing to give certain instructions, and in denying a new trial. *278
Inasmuch as appellant devotes considerable attention to the claim of insufficiency of the evidence it is necessary to set forth the evidence in some detail.
Appellant and Mrs. Averil Alexander had been married for about ten years and were the parents of an eight-year-old daughter. Upon moving to Sacramento, Mr. and Mrs. Alexander established a telephone answering service, and by close attention they built up a business of some value. Mrs. Alexander obtained outside employment, but apparently put her earnings into the business. Except for the times that Mrs. Alexander could relieve him, appellant devoted his entire time to the business, which required a twenty-four hour attendance. By reason perhaps of this long confinement, appellant became morose and addicted to the excessive use of liquor, and the parties separated in November, 1939. December 15th, Mrs. Alexander obtained an interlocutory decree. On December 29th, the shooting hereinafter related took place.
After the separation the wife moved to an apartment in another part of the city taking the daughter with her, she having been awarded the temporary custody of the child.
About 8 o'clock in the evening of December 29th, appellant telephoned to his wife and asked if she would let the daughter go with him to see the outdoor Christmas trees. The wife objected, but finally agreed to ask the daughter if she cared to go. In this conversation, according to the testimony of the wife appellant said, "... Well, if you won't let me have her I am coming out there and murder you, and I am not fooling, I mean what I say." The daughter then came to the telephone and told her father she did not care to go with him. About a half hour later appellant appeared at the house where his wife and daughter were living. The front door opened into a hallway, to the left of which was a living room. A stairway enclosed by a balustrade led to an upper floor. A flight of three steps in the hallway and to the right of the front door, led up to a landing, then a turn left with nine steps to another landing, then another left turn and five steps brought one to the second floor. The door bell was answered by a Mr. Daniels who was in the living room, who invited appellant in, but he refused, saying he wished to speak to his wife. Mrs. Alexander came to the door but did not open the screen door. Appellant remained *279 standing on the porch near the railing about eight feet from the door. The discussion was resumed about the daughter accompanying appellant to see the Christmas trees and he asked that the daughter be called. Mrs. Alexander objected, saying she did not want the child to stand out in the cold, and asked appellant to come in. He then replied, "Averil, this is my last request to come out here and talk to me, or else,--" whereupon he put his hand in his overcoat pocket. He pulled out a revolver, and Mrs. Alexander turned and ran upstairs. She heard the screen door open, and after reaching the last five steps, she crouched on the stairs, and a shot rang out and a bullet passed near her head and imbedded itself in the wall on the other side of the stairway. Daniels, who was seated in the living room to the left of the hall, heard Mrs. Alexander running up the stairs and looked up and saw her on the stairs, and appellant standing in the doorway. He then heard the shot and saw appellant with the revolver in his hand. Daniels went toward the door and appellant told him to keep out of the trouble or he would be next. Daniels then kicked the door shut and jumped back into the living room. A Mrs. Kelsey, who was seated in the living room, heard Mrs. Alexander say, "Bud, you wouldn't," and heard her running up the stairs, and also heard Alexander say to Daniels, "Don't come any closer, or I'll get you too."
Appellant remained on the porch a minute or two and then left. The next evening Alexander was arrested in his room in a local hotel. At that time he gave the name of Adams to the officers. The gun was found in his possession. When asked about the shooting of the night before he said he had been having domestic troubles and had been drinking and asked if his wife was injured.
The foregoing constitutes a brief narrative of what occurred. It is the claim of appellant that he went to the home of Mrs. Alexander with the intention of committing suicide, and the shot intended for himself missed its mark and passed over Mrs. Alexander.
[1, 2] As pointed out by appellant the crime here charged requires the presence of two intents, first, the intent to commit a violent injury, which is a necessary part of the assault. (Sec. 240, Pen. Code.) To establish this intent criminal negligence may be shown, and there seems no doubt that that *280 element of the crime was established in the case. It is in establishing the specific intent to kill that appellant contends the People failed.
Appellant points to his testimony wherein he declared his intention in taking his gun from his pocket was suicide; that he did not intend to harm his wife, and he did not aim the gun at her. As to this line of testimony the jury could, and evidently did, entirely disbelieve him.
Furthermore, to show appellant did not intend to harm his wife, it is claimed appellant had the gun in his possession for over a month but had not attempted to use it, although his wife had left him and secured an interlocutory decree of divorce, and his daughter had apparently lost her affection for him. It is also claimed Mrs. Alexander was not particularly frightened by his speech or manner as he stood near the open door, and further it is pointed out only one shot was fired from a gun capable of firing six shots. Also, after firing the shot he made no immediate effort to escape, standing on the porch a minute or two before leaving. Even these facts, persuasive as they appear under the able presentation by counsel for appellant, are susceptible of interpretation, and the jury did not accept the view of appellant. The jury may have placed more emphasis upon the telephone message to Mrs. Alexander from appellant when he told her about a half hour before he arrived, "I am coming out there and murder you, and I am not fooling, I mean what I say." The jury may have recalled that appellant, before firing the shot, advanced about eight feet from the railing of the porch to a point near the door, and actually opened the screen door, and also, that as Mrs. Alexander crouched on the stairway near the second landing, the bullet came so close to her she felt the compression of the air. Appellant also said to his wife as he insisted she come out onto the porch to talk to him, "Averil, this is my last request to come out here and talk to me, or else,--" and then started to withdraw the revolver from his pocket. The remark to Daniels by appellant immediately after the shot was, "You keep out of this or you are next." Upon his arrest the next day he gave a fictitious name. When asked by the police why he did it, he did not then say he had tried to kill himself, but said he had been drinking or he wouldn't have done it, and that he had been having trouble with his wife, and then asked if she was injured. None of *281 these acts are conclusively those of an innocent man. The jury saw appellant upon the stand, they heard the witnesses, and were amply supported by the evidence, if they believed it, in finding defendant guilty as charged.
[3] As has often been said, an appellate court cannot substitute its judgment for the findings of the jury unless the evidence is so clearly false and unbelievable that reasonable minds may not differ upon its inherent improbability. We have no such situation here.
[4] Appellant complains of the exclusion of certain evidence in some five or six particulars. One is that the defense should have been allowed to have shown that defendant carried on his business practically alone, and thereby became fatigued and susceptible to a mental breakdown, which might induce thoughts of self-destruction. This is of course remote and speculative.
[5] Objection is made to the exclusion of two letters, one written to the wife which contained some memoranda in regard to the business, which had no bearing upon the question of suicide for which it was offered by appellant. [6] The second memorandum was written by defendant a few hours after the shooting. It was addressed to a local undertaker and advised him about appellant's funeral. Neither could this be said to have been a suicide note, and was subject to further objection that it was a self-serving declaration. (People v. Munro, 14 Cal. App. 2d 446 [58 PaCal.2d 955]; 8 Cal.Jur., p. 105, sec. 198.)
[7] Appellant also claims that the jury were not properly instructed in regard to the specific intent necessary to constitute the crime here charged. An examination of the instructions given, however, seems sufficiently clear upon that question. Among others, this was given:
"The material elements necessary to prove in the crime of assault with a deadly weapon with intent to commit murder are:"
"One. That the assault was in fact committed with a deadly weapon."
"Two. That the assault was committed with malice aforethought and for the purpose of accomplishing a wilful, deliberate and premeditated killing, or was committed with malice aforethought under circumstances indicating to you an abandoned and malignant heart. *282"
"Both elements must unite and if the prosecution fails to establish to a moral certainty and beyond a reasonable doubt any one of these elements, or if there remains in the minds of the jurors a reasonable doubt as to whether or not the prosecution has established both of said elements, then you must acquit the defendant Sam Alexander."
"If you believe from the evidence that the defendant Sam Alexander did not commit an assault upon the person of Averil Alexander with a deadly weapon with intent to commit murder or if you believe from the evidence that the defendant Sam Alexander did commit an assault upon Averil Alexander with a deadly weapon without the intent to commit murder, then it is your duty to find the defendant Sam Alexander not guilty of an assault with a deadly weapon with intent to commit murder."
"If you believe from the evidence that the defendant Sam Alexander intended to commit suicide and had no intent to assault Averil Alexander, and fired a gun with the sole intent to kill himself, then you must find the defendant not guilty."
"As to the intent or intention with which an act is committed, if you find that such act was committed, such intent or intention is a matter entirely within the province of the jury, who must, from a full and careful consideration of the testimony and from all of the circumstances connected with the commission of the act, arrive at a determination as to whether such act was committed with a criminal intent."
[8] Appellant also claims that the district attorney in his opening statement to the jury stated that the prosecution would prove by two persons that the defendant said that he would make a better job of the shooting next time. No witnesses were produced to establish this fact.
In the absence of a positive showing of a deliberate attempt to misstate the case, such remark cannot constitute prejudicial misconduct. (People v. Berryman, 6 Cal. 2d 331 [57 PaCal.2d 136]; People v. Emme, 120 Cal. App. 9 [7 PaCal.2d 183].) [9] Also no objection was made to this remark nor was the alleged misconduct called to the attention of the court or jury at the close of the prosecution's case. We cannot assume that a public official deliberately injected false accusations in his opening statement. In the absence of any showing we must assume it was that officer's honest *283 belief that he would introduce such evidence. It may have been that the witnesses were not available or that owing to the development of the trial such evidence might by him have been deemed unnecessary and immaterial.
[10] Some question also is raised as to the statement of the trial judge when, at the sentencing of the defendant, he stated that from a factual basis he did not know whether the defendant had the deliberate intent necessary to commit the crime, but nevertheless denied a new trial. In reviewing the evidence, however, the trial court had stated there was evidence of intent and therefore he would not set the verdict aside. [11] The granting of a new trial lies very largely in the sound discretion of the trial judge and this court will not disturb this finding in the absence of clear abuse of discretion. The trial judge in this case is a jurist of sound judgment and wide experience in the trial of both criminal and civil matters, and there was clearly no abuse of any discretion upon his part.
Counsel for appellant have very ably presented the points upon which they rely for reversal, but the facts are so strong, and the conclusions that the jury have reached are so amply supported, and the trial was so fairly conducted that we can find no error justifying a reversal.
For the foregoing reasons, therefore, the judgment and order are affirmed.
Thompson, J., and Tuttle, J., concurred.
A petition for a rehearing was denied on November 9, 1940, and the following opinion was then rendered:
THE COURT.
Appellant, in his petition for a rehearing, suggests that this court in its recital of the facts has failed to indicate the conflict in the evidence. [12] Upon appeal, as pointed out in People v. Dukes, 90 Cal. App. 657 [266 P. 558], all intendments favor upholding the judgment, and the evidence is to be viewed in the light most favorable to the prosecution, and the jury, having found appellant guilty, it must be assumed the jury believed such testimony as pointed toward his guilt.
In the case at bar the testimony of appellant was that he went to the home of his wife to shoot himself in her presence, *284 and in his attempt to get the revolver from his pocket or on account of his poor aim, the gun was discharged, missed appellant, and the bullet passed over the head of his wife. This theory was disbelieved by the jury. It should be kept in mind, therefore, that our narrative of what took place was gathered from what the jury must have believed the facts to have been, and not the construction placed thereon by appellant.
Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3066612/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
PPL Electric Utilities Corporation, :
Petitioner :
: No. 462 M.D. 2013
v. :
: Argued: June 17, 2015
City of Lancaster and Pennsylvania :
Public Utility Commission, :
Respondents :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY
JUDGE McCULLOUGH FILED: October 15, 2015
Presently before this Court is the application of PPL Electric Utilities
Corporation (PPL) for summary relief seeking a judgment in its favor with respect to
counts I, II, III, and V of its amended petition for review, specifically, a declaration
that several provisions of Administrative Ordinance No. 16-2013 (the Ordinance)
enacted by the City of Lancaster (City) are invalid and preempted by the Public
Utility Code (Code), 66 Pa.C.S. §§101-3316, and an order enjoining enforcement of
these provisions.
I. Facts and Procedural History
The underlying facts of this case are not in dispute. PPL is a public
utility, regulated by the Pennsylvania Public Utility Commission (PUC). PPL
provides electric service to the public pursuant to a PUC-approved tariff. Under its
tariff, PPL’s service territory covers 29 counties and 653 municipalities, including the
City. On May 28, 2013, the City enacted Administrative Ordinance No. 2-2013 for
the purpose of implementing a comprehensive program for management of the City’s
rights-of-way, including management of public utilities and public utility facilities
within these rights-of-way. The City also adopted, on this same day, a resolution
which set forth a fee schedule related to activities and uses in the public rights-of-
way.1 On September 17, 2013, PPL filed a petition for review in the nature of a
complaint in this Court’s original jurisdiction seeking declaratory and injunctive
relief. PPL joined the PUC as an additional defendant.
II. December 17, 2013 Ordinance
On December 17, 2013, the City enacted the Ordinance at issue, which
repealed the previously enacted Administrative Ordinance No. 2-20132 and
implemented another program for management of the City’s rights-of-way, again
including management of public utilities and public utility facilities within these
rights-of-way. The City relied on the powers granted to it under the Third Class City
Code (TCCC)3 and the Home Rule Charter and Optional Plans Law4 in enacting the
Ordinance.5
1
This fee schedule sets forth, inter alia, a five-year use permit fee, curb and sidewalk and
street opening permit and inspection fees, street opening degradation fees, pole
replacement/erection fees, a pole maintenance fee, and an annual assessment per linear foot of
underground and aerial facilities located in the City’s rights-of-way.
2
The fee resolution remained in effect.
3
Act of June 23, 1931, P.L. 932, as amended, 53 P.S. §§35101-39701.
4
53 Pa.C.S. §§2901-2984.
(Footnote continued on next page…)
2
The Ordinance described the City’s rights-of-way as a “valuable
resource and asset, not only for City purposes, but also for the benefit of third-party
users, who rely upon the Rights-of-Way of the City for the installation and
maintenance of various facilities owned and operated by such third-parties to their
economic benefit . . . .” (Ordinance at 2.) The Ordinance stated that the management
and maintenance of the public rights-of-way represented a “significant continuing
operational and capitol cost” for the City, which, by extension, is passed on to City
taxpayers, residents, and business owners. Id. The Ordinance also stated that it was
necessary to recoup these maintenance and management costs from “the actual users
of such facilities” in the City’s rights-of-way. (Ordinance at 3.)
Section 263B of the Ordinance addresses PUC-regulated utilities and
purports to grant various powers to the City. For example, section 263B-3 authorizes
the City to conduct inspections to ensure that utility facilities within the rights-of-way
do not constitute a public safety hazard and remain in compliance with PUC
standards. Section 263B-4(6) authorizes the City to direct a utility to “temporarily or
permanently remove, relocate, change, or alter the position of any Facilities within
the Right-of-Way” under certain circumstances, including “the construction, repair,
maintenance, or installation of any City or other public improvement,” “the
operations of the City,” the “vacation of a Street or the release of a utility easement,”
or during emergency situations. (Ordinance at 7.) Additionally, section 263B-5
permits the City to impose an annual maintenance fee “in connection with the
(continued…)
5
However, the City is actually organized under the Optional Third Class City Charter Law,
Act of July 15, 1957, P.L. 901, as amended, 53 P.S. §§41101-41625.
3
ongoing use and occupancy of City Rights-of-Way” and section 263D-1 allows the
City to impose a penalty for a violation of any provision of the Ordinance that is not
within the exclusive jurisdiction of the PUC.6 (Ordinance at 8, 16.)
6
The relevant provisions of the Ordinance state, in full, as follows:
§263B-3 Right to Inspect
The City may conduct inspections of the City Rights-of-Way in order
to ensure that Utility Facilities located within such Rights-of-Way do
not constitute a public safety hazard, and remain in compliance with
the standards set forth by the [PUC]. Such inspections shall be
limited to establishing whether such Facilities meet relevant [PUC]
standards, and comply with such City construction standards as relate
to the opening and closing of City streets, curbs, and sidewalks, as
provided under 15 Pa.C.S. §1511(e). In the event that the City
determines that any Facilities of a Utility are not in compliance with
such standards, then the City may bring a complaint against such
Utility before the [PUC], in accordance with established [PUC]
procedures. The City may also elect, in its discretion, to notify the
Utility of the existence of any non-compliant Facilities, in order to
abate such violations without the need for the filing of a formal
[PUC] complaint.
§263B-4 Construction in the Rights-of-Way
...
(6) Relocation or Removal of Facilities. Within sixty (60) days
following written notice from the City, or such longer period as the
City determines is reasonably necessary or such shorter period in the
case of an Emergency, a Utility shall temporarily or permanently
remove, relocate, change or alter the position of any Facilities within
the Right-of-Way, excluding those underground, whenever the City,
consistent with [PUC] regulations, shall have determined that such
removal, relocation, change or alteration is reasonably necessary
under the following circumstances: the construction, repair,
maintenance, or installation of any City or other public improvement
in the Right-of-Way; the operations of the City or other governmental
entity in the Right-of-Way; vacation of a Street or the release of a
utility easement; or an Emergency as determined by the City.
Utilities must relocate and remove Facilities consistent with the
regulations and standards of the [PUC].
(Footnote continued on next page…)
4
(continued…)
...
§263B-5 Right-of-Way Maintenance Fee
(1) Compensation for Right-of-Way Use. Occupancy of City Rights-
of-Way by any Utility is subject to the City’s right to fix annually a
fair and reasonable compensation, which shall be directly related to
the City’s actual Right-of-Way maintenance costs.
(2) Annual Right-of-Way Maintenance Fee. Each Utility with
Facilities in the City’s Rights-of-Way shall pay an annual fee to
compensate the City for its costs incurred in connection with the
ongoing use and occupancy of City Rights-of-Way. The Annual
Right-of-Way Maintenance Fee shall be determined by the City and
authorized by resolution of City Council and shall be based on the
City’s actual [right-of-way] maintenance costs. The Annual Right-of-
Way Maintenance fee shall be fixed on a per-linear foot bases for
Underground Facilities and on a per linear foot basis for Aerial
Facilities. . . .
§263D-1 Penalties
(a) PUC Regulated Utilities. In the event a public utility is found by
the City to have violated a PUC regulation, standard, or order, then
the City may bring a complaint against such public utility before the
[PUC] for violation of such regulation, standard, or order. The City
may also notify the Utility of the existence of any suspected violation
of PUC standards, regulations or order[s] in order to obtain
compliance by the Utility.
In the event a public utility is found to have violated any other
provision of this Chapter that is not within the exclusive jurisdiction
of the PUC, then such public utility shall be subject, upon conviction
thereof, to a fine not exceeding three hundred dollars ($300), for each
and every offense, together with attorneys’ fees and costs, and in
default of the payment thereof, imprisonment for not more than
ninety (90) days. A separate and distinct violation shall be deemed to
be committed each day on which a violation occurs or continues to
occur. In addition to an action to enforce any penalty imposed by this
Chapter and any other remedy at law or in equity under this Title, the
City may apply to a Court of Common Pleas for an injunction or
other appropriate relief at law or in equity to enforce compliance with
(Footnote continued on next page…)
5
III. Amended Petition for Review
PPL thereafter filed an amended petition for review seeking declaratory
and injunctive relief and joining the PUC as an additional defendant. PPL noted that
it is a regulated utility subject to the provisions of the Code and, in accordance with
certificates of public convenience issued by the PUC, was authorized to offer, render,
furnish, or supply utility service to nearly 1.4 million customers throughout its
certificated service territory, which encompasses approximately 10,000 square miles,
all or portions of 29 counties, and more than 630 cities, boroughs, and townships.
PPL also noted that it rendered service to the public in accordance with a PUC-
approved tariff, which includes a list of services, rules for service, and rates for
service.7 PPL stated that it owns, operates, and maintains approximately 43,000
miles of distribution lines, 5,000 miles of transmission lines, and 375 substations
within its certificated territory.
PPL argued, generally, that the Ordinance violated the policy of the
Commonwealth for a uniform, state-wide regulation of public utilities and public
utility facilities; was preempted by the Commission’s exclusive authority over the
(continued…)
or restrain violation of any provision of this Chapter which is not
subject to the exclusive jurisdiction of the PUC.
Nothing in this Section shall be construed to permit the City to
commence or attempt to commence prosecution of any PUC
Regulated Utility for a violation of any regulation, standard or order
of the PUC. . . .
(Ordinance at 6-8, 16.)
7
A tariff has the force of law and is binding on the utility and its customers. Pennsylvania
Electric Company v. Pennsylvania Public Utility Commission, 663 A.2d 281, 284 (Pa. Cmwlth.
1995).
6
location, construction and maintenance of all public utility facilities; exceeded the
City’s authority under the Pennsylvania Municipalities Planning Code (MPC);8
violated PPL’s statutory right under section 1511(e) of the Business Corporation Law
of 1988, 15 Pa.C.S. §1511(e), to use public rights-of-way without charge;9 and
imposed a fee schedule and penalties that amount to an unlawful tax.
More specifically, PPL’s amended petition for review included five
counts. In Count I, PPL alleged that the City’s assessment of an annual maintenance
fee under section 263B-5 and the fee resolution interfered with the PUC’s exclusive
jurisdiction and violated PPL’s rights under the MPC. Count II alleged that the
inspection requirements of section 263B-3 were preempted by the Code and violated
PPL’s rights under the MPC. Count III alleged that the Code preempted section
263D-1. Count IV alleged that the maintenance fee was an illegal tax. Count V
averred that the Ordinance’s relocation and removal provisions interfered with the
PUC’s exclusive jurisdiction and violated PPL’s rights under the MPC.10
The City filed preliminary objections alleging that this Court lacked
jurisdiction because the PUC was not an indispensable party to this action. The City
further alleged a demurrer as to all counts stating that it acted entirely within its
police powers in adopting the Ordinance, PPL failed to plead how the specific
Ordinance provisions interfere with the PUC’s exclusive jurisdiction or are
8
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
9
Section 1511(e) provides a public utility corporation with the “right to enter upon and
occupy streets, highways, waters and other public ways and places for one or more of the principal
purposes specified in subsection (a) (related to general rule that public utilities have the power of
eminent domain) and ancillary purposes reasonably necessary or appropriate for the
accomplishment of the principal purposes. . . .”
10
The amended petition for review contains two counts designated as Count IV. We
therefore refer to the second Count IV as Count V.
7
preempted by the Code, and the MPC is irrelevant to the present action. PPL filed a
response denying these allegations. By order dated April 28, 2014, this Court
overruled the City’s preliminary objections and directed the City to file an answer to
PPL’s amended petition for review.
The City later filed an answer denying the material allegations of PPL’s
amended petition for review and reiterating in new matter its previous assertions that
it acted entirely within its police powers in adopting the Ordinance and that PPL
failed to demonstrate how the specific Ordinance provisions interfere with the PUC’s
exclusive jurisdiction or are preempted by the Code. The City also asserted that the
PUC has no jurisdiction to regulate rights-of-way fees, including maintenance fees,
and that such fees are a method of cost recovery, not taxes. Both PPL and the PUC
filed answers to this matter, denying these assertions.
IV. Application for Summary Relief
PPL thereafter filed its application for summary relief which is presently
before this Court.11 PPL seeks a judgment in its favor with respect to counts I, II, III,
and V of its amended petition for review, a declaration that sections 263B, 263B-4(6),
263B-5, and 263D-1 of the City’s Ordinance are invalid and preempted by the Code,
11
Pa.R.A.P. 1532(b) states that “[a]t any time after the filing of a petition for review in an
appellate or original jurisdiction matter the court may on application enter judgment if the right of
the applicant thereto is clear.” Moreover, in ruling on a request for summary relief, this Court
“views the evidence in the light most favorable to the non-moving party, and enters judgment only
if there is no genuine issue as to any material fact and the right to relief is clear as a matter of law.”
Hospital & Healthsystem Association of Pennsylvania v. Commonwealth, 77 A.3d 587, 602 (Pa.
2013). “A fact is considered material if its resolution could affect the outcome of the case under the
governing law.” Id.
8
and an order enjoining the City from enforcing these provisions.12 We agree with
PPL that the Code preempts sections 263B, 263B-4(6), and 263D-1 of the City’s
Ordinance. However, we do not agree with PPL that the Code preempts the
imposition of an annual maintenance fee pursuant to section 263B-5 of the City’s
Ordinance.
V. Discussion
A. Preemption
“Municipalities are creatures of the state and have no inherent powers of
their own. Rather, they possess only such powers of government as are expressly
granted to them and as are necessary to carry the same into effect.” Huntley &
Huntley, Inc. v. Borough Council of Oakmont, 964 A.2d 855, 862 (Pa. 2009).
Additionally, under the law of preemption, “even in areas over which municipalities
have been granted power to act, the state may bar local governing bodies from
legislating in a particular field.” Hoffman Mining Company v. Zoning Hearing Board
of Adams Township, 32 A.3d 587, 593 (Pa. 2011).
In Hoffman Mining Company, our Supreme Court noted that there are
three generally recognized types of preemption:
(1) express or explicit preemption, where the statute
includes a preemption clause, the language of which
specifically bars local authorities from acting on a particular
subject matter; (2) conflict preemption, where the local
enactment irreconcilably conflicts with or stands as an
obstacle to the execution of the full purposes of the statute;
and (3) field preemption, where analysis of the entire statute
12
Alternatively, PPL alleges that, as a matter of statutory construction, the City’s authority
over rights-of-way must be limited so as to give effect to the Code, and the challenged provisions of
the Ordinance violate its statutory right to occupy a right-of-way.
9
reveals the General Assembly’s implicit intent to occupy
the field completely and to permit no local enactments.
Id. at 593-94 (citations omitted).
B. Exclusive Authority of the PUC
The courts of this Commonwealth have long recognized the intent of our
General Assembly that public utilities be regulated on a uniform basis by a statewide
regulator and not be subject to the varied regulation of the many cities, townships,
and boroughs throughout the Commonwealth. Over 100 years ago, our Pennsylvania
Supreme Court addressed several ordinances passed by the city of York “for the
purpose of regulating the measuring of water supplied to consumers,” requiring York
Water Company to install meters, at its own expense, when requested by a consumer,
and prescribing penalties for failure to comply with the provisions of said ordinances.
York Water Company v. York, 95 A. 396, 396 (Pa. 1915). York Water Company filed
a bill in equity seeking to enjoin the city from enforcing these ordinances. The Court
of Common Pleas of York County issued a decree granting York Water Company a
perpetual injunction restraining the city from enforcement.
Referring to the predecessors of the current Code and PUC, the Supreme
Court held as follows:
There can be no reasonable doubt that the legislative
intention was to make the Public Service Act the supreme
law of the State in the regulation and supervision of public
service corporations, and this being so, it follows as a
necessary sequence that all laws inconsistent with the
powers thus conferred must be held to be repealed or
supplied thereby. . . The Public Service Company Law was
intended to establish a complete and uniform system
throughout the State for the enforcement of such powers as
were conferred upon the Public Service Commission by that
statute. . . .
10
We do not mean to be understood as saying that cities of the
third class, or of any other class for that matter, may not
under their police powers prescribe reasonable regulations
as a protection to the health, lives, property and safety of
their inhabitants, even as applied to public service
corporations. But such regulations are incidents of the
police power and must be so restricted. Under the guise of
a police regulation cities cannot undertake to determine the
reasonableness of rates charged by public service
corporations, nor can they prescribe regulations relating to
the facilities, service and business of such corporations.
These are the functions of the Public Service Commission
and must be so regarded. The legislature has so declared
and what the law making body does within the limit of its
powers becomes a rule of action binding upon all branches
of government, state or municipal, and upon the people as
well.
Id. at 396-97.
Nearly four decades later, our Supreme Court reaffirmed this policy in
Duquesne Light Company v. Upper St. Clair Township, 105 A.2d 287 (Pa. 1954). In
that case, Duquesne Light Company, an electric utility company, sought approval
from the PUC to build a transmission line through a residential area of Upper St.
Clair Township. The construction of this new transmission line required Duquesne
Light Company to obtain, by purchase or condemnation, various rights-of-way and
easements. The PUC issued the necessary certificates of public convenience to
Duquesne Light Company, which proceeded with the purchases and condemnation of
lands and later commenced construction of the new line. The township sought to
block the construction of the utility line towers on the grounds that their presence
would violate the township’s zoning ordinance. The township issued a notice of
work stoppage to Duquesne Light Company, advising that a building permit must be
secured and threatening the imposition of daily fines and the arrest of contractors if
construction continued without a permit.
11
Duquesne Light Company filed an action in equity with the Court of
Common Pleas of Allegheny County seeking to enjoin the township from enforcing
its zoning ordinance. The common pleas court issued a decree, which granted the
requested injunctive relief. The Supreme Court affirmed, citing the PUC’s authority
under section 901 of the then-existing Public Utility Code13 to “supervise and
regulate all public utilities doing business within the Commonwealth,” and holding
that “the policy of the Commonwealth in entrusting to the Commission the regulation
and supervision of public utilities has excluded townships from the same field.”
Duquesne Light Company, 105 A.2d at 292. The court explained that:
The Public Utility Code demonstrates without question that
the Legislature of the Commonwealth of Pennsylvania has
therein expressed its policy to commit the regulation of
utilities to the Public Utility Commission and to impose a
duty upon utilities to render efficient service. It is clear that
the proposed transmission line is necessary for the rendition
of efficient service to the public and that that necessity
transcends the legitimate objectives of any one of the
political subdivisions of the Commonwealth. We believe
that this is the reason why the General Assembly entrusted
the regulation of public utilities to a commission of state-
wide jurisdiction. Local authorities not only are ill-
equipped to comprehend the needs of the public beyond
their jurisdiction, but, and equally important, those
authorities, if they had the power to regulate, necessarily
would exercise that power with an eye toward the local
situation and not with the best interests of the public at
large as the point of reference.
Id. at 293.
Twelve years later, in County of Chester v. Philadelphia Electric
Company, 218 A.2d 331 (Pa. 1966), the Supreme Court affirmed a common pleas
13
Act of May 28, 1937, P. L. 1053, formerly 66 P.S. §1341.
12
court decision declaring as unconstitutional a Chester County ordinance prohibiting
persons or corporations from constructing pipelines without submitting plans related
to the routes and use of such lines to the Chester County Planning Commission and
once again reaffirming the exclusive jurisdiction of the PUC with respect to
regulation of public utilities. The court held that:
The necessity for conformity in the regulation and control
of public utilities is as apparent as the electric lines which
one views traversing the Commonwealth. If each county
were to pronounce its own regulation and control over
electric wires, pipelines and oil lines, the conveyors of
power and fuel could become so twisted and knotted as to
affect adversely the welfare of the entire state. It is for that
reason that the Legislature has vested in the Public Utility
Commission exclusive authority over the complex and
technical service and engineering questions arising in the
location, construction and maintenance of all public utilities
facilities. . . .
Id. at 333.
More recently, this Court reaffirmed this reasoning in PECO Energy
Company v. Township of Upper Dublin, 922 A.2d 996 (Pa. Cmwlth. 2007), and
Pennsylvania Power Company v. Township of Pine, 926 A.2d 1241 (Pa. Cmwlth.
2007), both of which invalidated a township’s attempt to regulate a public utility. In
Township of Upper Dublin, the township enacted an ordinance to regulate the manner
in which a public utility trims shade trees within the township’s rights-of-way. The
Court of Common Pleas of Montgomery County granted the motion of PECO Energy
Company for judgment in mandamus, holding that the township “possesses no
authority to regulate PECO’s vegetation management practices, which fall within the
Public Utility Code’s definition of ‘utility service’ and are solely regulated by the
[PUC].” Id. at 999.
13
This Court affirmed, noting that PECO’s tariff specifically authorizes it
“to trim, remove, or separate trees, vegetation or any structures therein, which, in the
opinion of [PECO], interfere with its aerial conductors” and that “[p]ublic utility
tariffs have the force and effect of law, and are binding on the customer as well as the
utility.” Id. at 1004 (citations omitted). We also noted that, consistent with a public
utility’s duties under section 1501 of the Code, 66 Pa.C.S. §1501,14 and the Code’s
definition of service in section 102, 66 Pa.C.S. §102,15 “[u]tility service is not
confined to the distribution of electrical energy, but includes ‘any and all acts’ related
to that function,” such as vegetation management activities. Id. at 1005 (citing West
14
Section 1501 states as follows:
Every public utility shall furnish and maintain adequate, efficient,
safe, and reasonable service and facilities, and shall make all such
repairs, changes, alterations, substitutions, extensions, and
improvements in or to such service and facilities as shall be necessary
or proper for the accommodation, convenience, and safety of its
patrons, employees, and the public. Such service also shall be
reasonably continuous and without unreasonable interruptions or
delay. Such service and facilities shall be in conformity with the
regulations and orders of the commission. Subject to the provisions
of this part and the regulations or orders of the commission, every
public utility may have reasonable rules and regulations governing
the conditions under which it shall be required to render service. Any
public utility service being furnished or rendered by a municipal
corporation beyond its corporate limits shall be subject to regulation
and control by the commission as to service and extensions, with the
same force and in like manner as if such service were rendered by a
public utility. The commission shall have sole and exclusive
jurisdiction to promulgate rules and regulations for the allocation of
natural or artificial gas supply by a public utility.
15
Section 102 defines “Service,” in pertinent part, as “[u]sed in its broadest and most
inclusive sense, includes any and all acts done, rendered, or performed, and any and all things
furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities, or
contract carriers by motor vehicle, in the performance of their duties under this part to their patrons,
employees, other public utilities, and the public . . . .”
14
Penn Power Company v. Pennsylvania Public Utility Commission, 578 A.2d 75, 77
(Pa. Cmwlth. 1990), appeal denied, 593 A.2d 429 (Pa. 1991)).
Most importantly, we concluded that “the legislature intended the Public
Utility Code to preempt the field of public utility regulation.” Township of Upper
Dublin, 922 A.2d at 1005 (emphasis added). Further, citing Duquesne Light
Company, County of Chester, and West Penn Power Company, as well as the PUC’s
electric safety and reliability regulations and its then-proposed inspection and
maintenance regulations, which directly conflicted with the township’s shade tree
ordinance, we held that the township was preempted by the Code and PUC
regulations “from applying its shade tree ordinance pruning standards to PECO’s
vegetation management practices.” Id.
In Township of Pine, the township denied the application of
Pennsylvania Power Company for a permit to install poles and utility lines along a
public right-of-way in the township. The township demanded that such service be
underground, consistent with an agreement entered into by the township and a private
developer with respect to a residential subdivision. Pennsylvania Power Company
appealed the denial of a permit to the common pleas court, which affirmed the
township’s denial based upon section 57.84 of the PUC regulations, 52 Pa. Code
§57.84, which requires that new distribution lines located within 100 feet of a
development be placed underground, “if practicable.” The common pleas court also
relied on Duquesne Light Company as support for its decision that the township may
define by ordinance a reasonable underground wiring district. On further appeal, this
Court vacated the decision of the common pleas court and directed that the matter be
transferred to the PUC.
We began our analysis by noting that the common pleas court
misinterpreted the holding in Duquesne Light Company, as that case “neither
15
expanded the authority of local government bodies over public utilities, nor
diminished the authority of the PUC. It simply reconciled two conflicting statutes
and reaffirmed the long line of decisions in this Commonwealth establishing that a
municipality may not, through ordinance or otherwise, compel the underground
installation of electric utilities.” Township of Pine, 926 A.2d at 1249 (emphasis in
original). Additionally, we noted that the township had never passed an ordinance or
regulation pursuant to its home rule powers that would require a utility to place its
lines underground, but instead relied upon its authority to issue permits under section
18 of the Act of May 11, 1911, P.L. 244, as amended, 53 P.S. §1991 (section 1991).16
However, we stated that the permit powers in section 1991 were not
unlimited, and that section 1991 had been repealed insofar as it was inconsistent with
section 1511(a)(2) of the Business Corporation Law of 1988 (BCL), which grants a
public utility “the right to take, occupy and condemn property” for the “transportation
of artificial or natural gas, electricity, petroleum or petroleum products or water or
any combination of such substances for the public.” 15 Pa.C.S. §1511(a)(2). In
addition, we cited section 1511(e) of the BCL, which specifically addresses a public
utility’s right to occupy streets and other public rights-of-way for the “placement,
16
This section addresses the use of streets by public utilities, providing as follows:
The proper corporate authorities of such municipality shall have the
right to issue permits determining the manner in which public service
corporations or individuals shall place, on or under or over such
municipal streets or alleys, railway tracks, pipes, conduits, telegraph
lines, or other devices used in the furtherance of business; and
nothing herein contained should be construed to in any way affect or
impair the rights, powers, and privileges of the municipality in, on,
under, over, or through the public streets or alleys of such
municipalities, except as herein provided.
16
maintenance and removal of aerial, surface and subsurface public utility facilities
thereon or therein.” 15 Pa.C.S. §1511(e).17
Construing section 1991, section 1511 of the BCL, and the Code
together, we held that the “the scope and breadth of [the township’s] permit authority
ha[d] been limited by Section 1511 of the BCL to matters of local concern,” i.e., the
time and manner of opening a street, and “[b]ecause the underground installation of a
distribution line within the Township's right-of-way is not, by statutory definition, a
matter of local concern, the Township has no authority to require Penn Power to
proceed in that fashion.” Township of Pine, 926 A.2d at 1251. Further, we
emphasized “the ‘initial and exclusive authority’ of the PUC to first determine public
utility regulatory matters. . . .” Id. at 1252. Because a question remained in that case
regarding whether, consistent with PUC regulations, the placement of underground
17
Section 1511(e) provides, in full, as follows:
A public utility corporation shall have the right to enter upon and
occupy streets, highways, waters and other public ways and places for
one or more of the principal purposes specified in subsection (a) and
ancillary purposes reasonably necessary or appropriate for the
accomplishment of the principal purposes, including the placement,
maintenance and removal of aerial, surface and subsurface public
utility facilities thereon or therein. Before entering upon any street,
highway or other public way, the public utility corporation shall
obtain such permits as may be required by law and shall comply with
the lawful and reasonable regulations of the governmental authority
having responsibility for the maintenance thereof.
We further noted in Township of Pine that the Amended Committee Comment-1990 to section 1511
of the BCL explains that “reference in the last sentence of subsection (e) to ‘permits’ is a
codification of the prior law relating to the time and manner of opening a street, etc., and is not
intended to imply a power to decide whether or not, and by whom, a type of utility service may be
offered by means of the contemplated facilities.” Id. at 1251 (citation omitted) (emphasis in
original).
17
utility lines was practicable, we vacated the common pleas court’s decision and
transferred the matter to the PUC.
C. City of Lancaster Ordinance
In the present case, the City similarly relies on section 1991 and section
1511(e) of the BCL as support for its authority to regulate utilities within its rights-
of-way. However, we reject these arguments based upon our decision in Township of
Pine. The City also relies on section 701 of the Code, 66 Pa.C.S. §701, and its police
powers under the TCCC. However, such reliance is misplaced. Section 701 of the
Code merely authorizes the City to file a written complaint with the Commission
whenever a public utility acts or fails to act in violation of “any law which the [PUC]
has jurisdiction to administer” or “any regulation or order of the [PUC].” 18 This
section does not convey any authority to municipal organizations, let alone empower
the City to enact ordinances regulating public utilities.
18
Section 701 provides in full as follows:
The commission, or any person, corporation, or municipal
corporation having an interest in the subject matter, or any public
utility concerned, may complain in writing, setting forth any act or
thing done or omitted to be done by any public utility in violation, or
claimed violation, of any law which the commission has jurisdiction
to administer, or of any regulation or order of the commission. Any
public utility, or other person, or corporation likewise may complain
of any regulation or order of the commission, which the complainant
is or has been required by the commission to observe or carry into
effect. The Commonwealth through the Attorney General may be a
complainant before the commission in any matter solely as an
advocate for the Commonwealth as a consumer of public utility
services. The commission may prescribe the form of complaints filed
under this section.
66 Pa.C.S. §701.
18
The City cites its general police powers under former section 2403(60)
of the TCCC, which empowered it to “make and adopt all such ordinances, by-laws,
rules and regulations, not inconsistent with or restrained by the Constitution and
laws of this Commonwealth, as may be expedient or necessary for the proper
management, care and control of the city and its finances, and the maintenance of the
peace, good government, safety and welfare of the city. . . .” 53 P.S. §37403(60)
(emphasis added).19 The City also cites its general power under section 2915(3) of
the TCCC to keep its rights-of-way “in order and repair and in safe passable
condition.” 53 P.S. §37915(3). Again, however, neither of these provisions
authorizes the City to enact ordinances regulating public utilities. Moreover, similar
to Township of Upper Dublin, where the First Class Township Code (FCTC),20 the
authority upon which the township relied in enacting its shade tree ordinance,
contained a general repeal provision stating that nothing in that act shall “repeal or
modify any of the provisions of the [Code],”21 the TCCC includes a general repeal
provision at section 4701 stating that “[n]othing contained in this act shall be
construed to repeal any local or special laws; or to repeal the provisions of 66 Pa.C.S.
Pt. I, known as the Public Utility Code. . . .” 53 P.S. §39701.
Furthermore, the relevant provisions of the Ordinance implicate subjects,
including the inspection and location of utility facilities and the imposition of fees
and penalties, that are committed to the PUC’s exclusive jurisdiction by the Code.
We will discuss each of these provisions separately below.
19
This section was repealed by the Act of March 19, 2014, P.L. 52, and an analogous
provision was enacted at section 2435 of the TCCC, 53 P.S. §37435.
20
Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§55101-58502.
21
See Section 3502 of FCTC, 53 P.S. §58502.
19
Section 263B-3 of the Ordinance
Section 263B-3 of the Ordinance purports to authorize the City to
inspect public utility facilities to ensure that such facilities do not constitute a public
safety hazard and remain in compliance with PUC standards. As PPL states, this
provision essentially makes the City a regulator itself.
However, the General Assembly has declared, as the policy of this
Commonwealth, that because “continuing and ensuring the reliability of electric
service depends on adequate generation and on conscientious inspection and
maintenance of transmission and distribution systems, the independent system
operator or its functional equivalent should set, and the commission shall set through
regulations, inspection, maintenance, repair and replacement standards and enforce
those standards.” Section 2802(20) of the Code, 66 Pa.C.S. §2802(20). In this
regard, the Code specifically empowers the PUC to: appoint inspectors to ensure “the
proper conduct of the work of the [PUC],” and “for the purpose of enforcing the
[Code’s] provisions, sections 305(c) and 307 of the Code, 66 Pa.C.S. §§305(c), 307;
“investigate and examine the condition and management of any public utility,”
section 331 of the Code, 66 Pa.C.S. §331; and “enter upon the premises, buildings,
machinery, system, plant, and equipment, and make any inspection, valuation,
physical examination, inquiry, or investigation of any and all plant and equipment,
facilities, property. . . of any public utility,” section 506 of the Code, 66 Pa.C.S. §506.
In addition, the PUC has enacted regulations setting forth specific inspection and
maintenance standards relating to utility poles, overhead lines, transformers,
20
switching and protective devices, regulators, capacitors, and substations. See 52 Pa.
Code §57.198.22
Section 263B-4(6) of the Ordinance
Section 263B-4(6) of the Ordinance purports to grant the City the power
to order a public utility to remove, relocate, change, or alter the position of any
facilities within the right-of-way whenever the City determines that it is “reasonably
necessary” to do so “or such shorter period in the case of an Emergency.” However,
as our Supreme Court stated in County of Chester, “the Legislature has vested in the
[PUC] exclusive authority over the complex and technical service and engineering
questions arising in the location, construction and maintenance of all public
utilities facilities. . . .” 218 A.2d at 333 (emphasis added). In this regard, section
1505(a) of the Code directs the PUC as follows:
Whenever the commission, after reasonable notice and
hearing, upon its own motion or upon complaint, finds that
the service or facilities of any public utility are
unreasonable, unsafe, inadequate, insufficient, or
unreasonably discriminatory, or otherwise in violation of
this part, the commission shall determine and prescribe, by
regulation or order, the reasonable, safe, adequate,
sufficient, service or facilities to be observed, furnished,
enforced, or employed, including all such repairs, changes,
alterations, extensions, substitutions, or improvements in
facilities as shall be reasonably necessary and proper for the
safety, accommodation, and convenience of the public.
22
The City asserts that the PUC “has absolutely no infrastructure or staff to implement [its]
regulations or to conduct any inspections.” (Brief of City at 44) (Emphasis in original). However,
even if the City is correct, the lack of such staff does not empower the City to undertake the duties
specifically reserved to the PUC by statute and by the aforementioned case law declaring the PUC
to be the sole regulator of public utilities.
21
66 Pa.C.S. §1505(a). Further, the PUC has promulgated extensive regulations
relating to the location of line extensions, transmission lines, and underground
electric service. See 52 Pa. Code §§57.19, 57.71-57.77, 57.81-57.88, 69.3101-
69.3107.
The City contends that section 263B-4(6) does not conflict with the
Code. The City acknowledges the existence of the above-mentioned regulations,
which the City asserts specifically limit application of this section of the Ordinance.
The City cites that portion of section 263B-4(6) which states that “Utilities must
relocate and remove Facilities consistent with the regulations and standards of the
[PUC].” However, such limitation does not overcome the fact that section 263B-
4(6), like section 263B-3 above, essentially makes the City a regulator itself with the
authority to direct the relocation or removal of public utility facilities. Again, our
General Assembly and the courts of this Commonwealth have recognized that such
authority rests solely with the PUC.
Section 263B-5 of the Ordinance
Section 263B-5 seeks to impose an annual maintenance fee on any
public utility with facilities in the City’s rights-of-way. PPL argues that such a fee is
redundant to the annual assessment fee that it pays to the PUC for regulatory
expenses under section 510 of the Code, 66 Pa.C.S. §510. Section 510 of the Code,
66 Pa.C.S. §510, imposes an annual assessment on public utilities for its regulatory
expenses. The PUC calculates this assessment in accordance with a formula set forth
in section 510(b), which includes consideration of the amount of PUC expenditures
“directly attributable to the regulation of each group of utilities furnishing the same
kind of service” and the “gross intrastate operating revenues” and “sum of the debits”
22
of a particular utility group as compared to all utility groups. 66 Pa.C.S. §510(b)(1)-
(4).
However, as the City correctly notes, the proposed annual maintenance
fee represents the costs it expends to maintain the rights-of-way occupied by public
utilities and no section of the Code provides for an annual assessment of these costs.
Our Supreme Court has held that maintenance of rights-of-way is within the ambit of
the traditional exercise of municipal police powers and the assessment of a reasonable
fee for the recovery of costs incurred by the City expended in maintaining such
rights-of-way does not constitute local regulation of public utilities. See Adams v.
New Kensington, 55 A.2d 392, 394-95 (Pa. 1947); Kittanning Borough v. American
Natural Gas Company, 86 A. 717, 717-18 (Pa. 1913).
Moreover, we note that the City is a home rule municipality. As such, it
has the legal ability to assess fees for recovery of costs under its home rule powers,
which are not constrained by Dillon’s Rule, and generally enable it to undertake
government action unless preempted by a law of statewide applicability. Since the
Code does not preempt the imposition of an annual fee relative to the maintenance of
the City’s rights-of-way, it may do so provided the fee is reasonable in relation to the
costs incurred by the City for such purpose and not a tax.
Furthermore, we are not persuaded by PPL’s contention that the City’s
imposition of an annual maintenance fee will be ultimately passed back on to
consumers through the PUC’s ratemaking process. This contention is speculative and
presumes the PUC will merely rubberstamp a PPL rate increase and pass it along to
consumers, which in turn insinuates that the PUC will not exercise proper oversight
should PPL seek a rate increase. We are likewise not persuaded by PPL’s fears that
the impact on consumer rates could be magnified exponentially if each of the 652
municipalities in PPL’s service territory imposed their own annual maintenance fees.
23
This argument is not only speculative but specious as the same could be said of any
kind of local government assessment for taxes or fees. Such an argument is also best
directed to the legislative branch of government which can revise the Code to
preempt the imposition of local maintenance fees for public rights-of-way.
In light of the above, the issue as to the imposition of an annual right-of-
way fee is not whether it is preempted by the Code, but whether the fee is reasonable
and not a tax. This issue cannot be determined at this summary stage of the
proceedings and may require further factual development; hence, we must deny
PPL’s application for summary relief as to Count I of its amended petition for review.
Section 263D-1 of the Ordinance
Section 263D-1 addresses both PUC-regulated utilities (263D-1(a)) and
non-PUC-regulated entities (263D-1(b)). Regarding the former, this section seeks to
permit the City to bring a complaint against a public utility “[i]n the event a public
utility is found by the City to have violated a PUC regulation, standard, or order . . . .”
This section also permits the City to “notify the Utility of the existence of any
suspected violation of PUC standards, regulations or order [sic] in order to obtain
compliance by the Utility.” Additionally, this section states that if a public utility is
found to have violated any provision of the Ordinance that is not within the PUC’s
exclusive jurisdiction, then the public utility “shall be subject, upon conviction
thereof, to a fine not exceeding three hundred dollars ($300), for each and every
offense, together with attorneys’ fees and costs, and in default of the payment thereof,
imprisonment for not more than ninety (90) days.” Further, this section deems each
day a violation continues to occur as a separate and distinct violation.
We agree with PPL that section 263D-1(a) attempts to impose an
overlapping enforcement regime for public utilities that is preempted by the Code.
24
As noted above, section 1505 of the Code specifically authorizes the PUC, by its own
motion or upon the filing of a complaint by a third party, to: convene a hearing; make
findings regarding the reasonableness, safety, adequacy, and sufficiency of a public
utility’s service and/or facilities; and to prescribe, by regulation or order, any
necessary repairs, changes, alterations, extensions, substitutions, or improvements in
this service or facilities. Additionally, section 3301(a) of the Code, 66 Pa.C.S.
§3301(a), provides for the imposition of civil penalties against a public utility for any
violation of the Code, PUC regulation, or PUC final determination or order. Section
3301(b) addresses continuing offenses and states that “[e]ach and every day’s
continuance in the violation of any regulation or final direction, requirement,
determination, or order of the commission . . . shall be a separate and distinct
offense.” 66 Pa.C.S. §3301(b).
Moreover, section 3314(a) of the Code sets forth a three-year statute of
limitations for the recovery of any penalties or forfeitures incurred under the Code,
commencing from the “date at which the liability therefor arose. . . .” 66 Pa.C.S.
§3314(a). Furthermore, the PUC has promulgated its own investigation and
enforcement regulation, 52 Pa. Code §57.197, as well as a regulation setting forth the
factors and standards that the PUC will consider in imposing penalties or approving
settlements for a violation, 52 Pa. Code §69.1201.
The City contends that the Ordinance does not create an overlapping
enforcement regime, but instead recognizes the jurisdiction of the PUC. In support of
this contention, the City cites that portion of section 263D-1(a) limiting imposition of
fines to violations of Ordinance provisions “not within the exclusive jurisdiction of
the PUC” and recognizing that “[n]othing in this Section shall be construed to permit
the City to commence or attempt to commence prosecution of any PUC Regulated
Utility for a violation of any regulation, standard or order of the PUC.” The City
25
notes that, in such situations, its only recourse is to file a complaint with the PUC
under section 701 of the Code.
However, the City ignores that portion of section 263D-1(a) that permits
the City to independently contact a public utility and advise the public utility of the
City’s perceived violations of the Code or the PUC’s regulations or orders. Similar to
the aforementioned sections of the Code, section 263D-1(a) essentially makes the
City a regulator itself. Indeed, in its answer and new matter to PPL’s amended
petition for review, the City conceded that the Ordinance was an attempt to exercise
“concurrent” authority with the PUC over management of its rights-of-way. (City’s
Answer and New Matter, May 27, 2014, ¶111.)
Conclusion
Summary relief is appropriate where there are no genuine issues of
material fact and the right to relief is clear as a matter of law. Pa.R.A.P. 1532(b);
Hospital & Healthsystem Association of Pennsylvania. A century of case law has
firmly established that the General Assembly’s intent in enacting the Code and its
predecessor statute was to provide for the uniform, statewide regulation of public
utilities and public utility facilities. Indeed, this Court has expressly held that “the
legislature intended the Public Utility Code to preempt the field of public utility
regulation.” Township of Upper Dublin, 922 A.2d at 1005. For the reasons stated
above, we conclude that sections 263B-3, 263B-4(6), and 263D-1 of the City’s
Ordinance are preempted by the Code, and, hence, are invalid. However, we
conclude that section 263B-5 of the City’s Ordinance, by which the City imposes an
annual right-of-way maintenance fee based only on its costs to maintain the same, is
not a public utility regulation and, hence, is neither preempted by the Code nor
invalid.
26
Because no genuine issues of material fact remain to be decided as to
counts II, III, and IV of PPL’s amended petition for review and PPL has established a
clear right to relief as a matter of law, we grant PPL’s application for summary relief
and enter judgment in its favor with respect to these counts. The City is specifically
enjoined from enforcing sections 263B-3, 263B-4(6), and 263D-1 of its Ordinance.23
However, because we disagree with PPL that section 263B-5 of the City’s Ordinance
is preempted by the Code, we deny PPL’s application for summary relief as to Count
I of its amended petition for review.24 As noted above, the issues regarding the
reasonableness of the annual maintenance fee imposed under section 263B-5 of the
City’s Ordinance, and whether said fee is a tax, may require further factual
development before this Court.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge McGinley dissents.
Judge Leadbetter joins in part but dissents to maintenance fee (Section 263B-5) only.
23
Based upon this determination, we need not address PPL’s alternative arguments relating
to statutory construction and its right to occupy a right-of-way.
24
The dissent would deny PPL’s application for summary relief and hold that none of the
relevant sections of the City Ordinance are preempted by the Code because section 1511(e) of the
BCL requires public utilities to comply with a municipality’s “reasonable regulations.” 15 Pa.C.S.
§1511(e). The Majority does not deny that a municipality owns a right-of-way, that it has a duty to
maintain the right-of-way, or that it may enact “reasonable regulations” with respect to a right-of-
way. Indeed, we have denied PPL’s application for summary relief relating to the City’s imposition
of an annual maintenance fee. However, the dissent ignores that these “reasonable regulations” are
subject to the restrictions imposed by the General Assembly under the Code, as well as over 100
years of case law which recognized the Code as “the supreme law of the State,” York Water
Company, 95 A. at 397, and preempting “the field of public utility regulation,” Township of Upper
Dublin, 922 A.2d at 1005. As the Majority notes above, the relevant provisions of the City’s
Ordinance implicate subjects that are committed to the PUC’s exclusive jurisdiction under the
Code.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
PPL Electric Utilities Corporation, :
Petitioner :
: No. 462 M.D. 2013
v. :
:
City of Lancaster and Pennsylvania :
Public Utility Commission, :
Respondents :
ORDER
AND NOW, this 15th day of October, 2015, the application for
summary relief filed by PPL Electric Utilities Corporation (PPL) is granted as to
counts II, III, and V of its amended petition for review. We hereby declare
sections 263B-3, 263B-4(6), and 263D-1 of the December 17, 2013 Ordinance
enacted by the City of Lancaster (City) to be preempted by the Public Utility Code,
and enjoin the City from enforcing these sections. PPL’s application for summary
relief as to Count I is denied. Section 263B-5 of the City’s Ordinance is not
preempted by the Code.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
PPL Electric Utilities Corporation, :
Petitioner :
:
v. : No. 462 M.D. 2013
: Argued: June 17, 2015
City of Lancaster and Pennsylvania :
Public Utility Commission, :
Respondents :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HNORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: October 15, 2015
The City of Lancaster (City), a home rule municipality,1 enacted Chapter
263 of the City Code entitled “Right of Way Management” imposing certain
requirements on entities whose facilities occupy the City’s right-of-way, including
public utilities. The issue in this case is whether the Public Utility Code2 preempts
1
Lancaster adopted a home rule form of government under the former Third Class City
Optional Charter Law (Optional Charter Law), Act of July 15, 1957, P.L. 901, as amended, 53 P.S.
§§41101-41625. That Act has been supplanted by the Home Rule Charter and Optional Plans Law,
53 Pa. C.S. §§2901-3171. For a full discussion, see Harrisburg School Dist. v. Hickok, 781 A.2d
221, 239 (Pa. Cmwlth. 2001).
2
66 Pa. C.S. §§101-3316.
local municipalities from including public utilities in a comprehensive management
plan that seeks to regulate the occupation of the public right-of-way between the
varying public and private interests whose facilities occupy the public streets. With
the exception of a provision that imposes an annual maintenance fee, the majority
finds that the comprehensive plan provisions are preempted by the Public Utility
Code. Because I would find that the right-of-way comprehensive management plan
embodied in Chapter 263 of the City Code is specifically recognized rather than be
preempted,3 I respectfully dissent.
I.
Before examining whether municipalities have been preempted from
regulating public utilities, we must first look at the nature of the right-of-way.4 When
3
While it is often said that municipalities are creatures of the General Assembly and possess
only such powers that are expressly granted to them, those formulations have not been accurate
since our Constitution was amended in 1968 to provide that “[t]he General Assembly shall provide
by general law for local government within the Commonwealth.” Pa. Const. art. IX, §1. Since
then, local government is an absolute right and the state cannot take it away. The Pennsylvania
Constitution also provides that “[m]unicipalities shall have the right and power to frame and adopt
home rule charters….” Pa. Const. art. IX, §2. Home rule means that it is not the state’s prerogative
to run and operate the machinery of local government, but to provide for it and to put it in operation
and that a home rule municipality “may exercise any power or perform any function not denied by
this Constitution, by its home rule charter or by the General Assembly at any time.” Id. Precisely
speaking, municipalities are not creatures of the General Assembly, but creatures of the Constitution
so that local matters are addressed by local citizens and the officials that they elect.
4
The public right-of-way is composed of the street which encompasses two distinct
portions: the roadway used for vehicles and the sidewalk for pedestrians. Mercantile Library Co. v.
Fidelity Trust Co., 83 A. 592 (Pa. 1912). It can include the pavement, shoulders, gutters and curbs
within the street lines. Granchi v. Borough of North Braddock, 810 A.2d 747 (Pa. Cmwlth. 2002).
The roadway is generally accepted as the paved and traveled portion. Babcock v. Department of
Transportation, 626 A.2d 672 (Pa. Cmwlth. 1993), appeal denied, 639 A.2d 53 (Pa. 1994). While
the sidewalk is a place set apart at the side of a street for use by that portion of the public who
travels on foot, it need not be improved to be a sidewalk. Callahan v. A. Wishart & Sons Co., 76
(Footnote continued on next page…)
DRP - 2
a municipality, by dedication or otherwise, obtains a public right-of-way, it is held in
trust for the public. A municipality is not restricted to using the street only for the
public’s right of passage and may allow additional use of the right-of-way as long as
it is for a use that serves the public generally, is consistent with its use as a public
street, and does not burden the abutting property owner’s property. In re City of
Altoona, 388 A.2d 313 (Pa. 1978). However, the fee owner does not surrender his
entire title to the land so dedicated, but reserves the fee in the residue and may
exercise full rights of ownership to that residue, above and below the surface.
Breinig v. County of Allegheny, 32 A.2d 842 (Pa. 1938); Gramlich v. Lower
Southampton Township 838 A.2d 843 (Pa. Cmwlth. 2003); Miller v. Nichols, 526
A.2d 794 (Pa. Super. 1987).
Initially, whether the occupation of the street by public utilities and
street railroads was for a public purpose was problematic because the nature of the
company was partly public and partly private, that is, although for-profit, it had
public privileges and public duties. Delos F. Wilcox, Municipal Franchises, Vol. II,
§277 (1910). See also Shuster v. Central District & Printing Telephone Co., 34 Pa.
Super. 513 (1907) (property owner entitled to compensation for telephone wires
placed along street); Berlew v. Electric Illuminating Company, 1 Pa. C.C. 651
(Northumb. 1886) (requiring utility to pay the owner of abutting property
compensation for putting poles and wires along the street). However, later, public
(continued…)
A.2d 386 (Pa. 1950). The remainder of the public right-of-way is that area not used for either
streets or sidewalks occupied by public utilities, cable and water and sewer lines and such.
DRP - 3
utilities, cable, sewer, water, street railways, subways and steam heat were held for
public purposes and could occupy the right-of-way without compensating the
abutting property owner.5
As a result, beneath the streets of a municipality exists a network of
walls, columns, cable pipes and tunnels that go over and around each other that are
required to service the needs of the municipality’s inhabitants. Some of those
facilities are those of public utilities that are subject to regulation by the Public Utility
Commission (PUC); cable providers are regulated, in part by the federal government,
while others by the municipality itself or municipal authorities and some by the
adjoining properties who have lateral lines in the right-of-way to service their
properties as well as vaults in the right-of-way.
5
Prior to 1966, the extent of a public use easement varied according to whether the street or
road was located in an urban or rural area. Rural roads were held to be for public passage only,
whereas city streets were for “any public service.” 46 South 52nd Street Corp. v. Manlin, 157 A.2d
381, 386 (Pa. 1960). See also William Laubach & Sons v. City of Easton, 32 A.2d 881 (Pa. 1943).
In 1966, the Supreme Court discarded the distinction between city streets and rural roads and held
that the rule applicable to city streets was equally applicable to rural roads. Pittsburgh National
Bank v. Equitable Gas Co., 220 A.2d 12 (Pa. 1966). The court held that a subsurface pipeline
which had been laid in the bed of a township road did not constitute an additional burden upon the
abutting land. “[A]n existing street or public road,” the Court said, “may be used for any public
service without additional compensation due the abutting landowner.” Id. at 14. “[W]hen any
public road is established, it is clearly for the purpose of public travel and commerce.” Id. at 16.
The Court reasoned: “As the means and modes of public commerce increase, what at one time
would have been considered a burden on the abutting landowner is no longer so.... Evolutionary
changes must be considered in determining whether a burden is imposed on the servient tenement.”
Id. See also Smith v. Adams, 523 A.2d 788 (Pa. Super. 1987). Of course, “[i]f a use obstructs the
abutting land or is of a new nature not in accord with the mainstream of today’s commerce, it will
still be held a violation of the landowner’s rights.” Pittsburgh National Bank, 220 A.2d at 16 n.2.
DRP - 4
The question then is who is going to facilitate and arbitrate all of those
competing interests in the right-of-way, which are owned, operated and regulated by
different entities, so that the public interest in all of them can be served. The answer
to that question is simple: the municipality that owns and maintains the right-of- way
in trust for the public, i.e., their citizens.
II.
In general, a municipality has the right to regulate the public right-of-way.
Shuck v. Borough of Ligonier, 22 A.2d 735 (Pa. 1941). Also, in general, a municipality
can decide what entity is authorized in the right-of-way and under what conditions.
That is only true “in general” because a municipality cannot prevent a public utility
from using its right-of-way. However, it is also clear that a municipality can subject the
public utility to “reasonable regulations.” Section 1511(e) of the Business Corporation
Law of 1988 (BCL), 15 Pa. C.S. §1511(e), gives the power to a public utility to place
its public utility facilities in the right-of-way and also specifically subjects them to
reasonable municipal regulation. It provides:
A public utility corporation shall have the right to enter upon
and occupy streets, highways, waters and other public ways
and places for one or more of the principal purposes specified
in subsection (a) and ancillary purposes reasonably necessary
or appropriate for the accomplishment of the principal
purposes, including the placement, maintenance and removal
of aerial, surface and subsurface public utility facilities
thereon or therein. Before entering upon any street,
highway or other public way, the public utility
corporation shall obtain such permits as may be required
by law and shall comply with the lawful and reasonable
regulations of the governmental authority having
responsibility for the maintenance thereof.
DRP - 5
15 Pa. C.S. §1511(e) (emphasis added),
Note that this provision gives public utilities the right to occupy the right-
of-way; it does not give them the right to place facilities anywhere that they want. That
is subject to reasonable regulation by the municipality.
Chapter 263 of the City Code regulates any entity that occupies the right-
of-way. Recognizing that some facilities also have obligations to other regulators, it
makes distinctions between public utilities, non-public utilities, and cable companies
that occupy the right-of-way under franchises awarded by the City. Section 263B of the
City Code addresses PUC-regulated utilities and authorizes the City to:
• conduct inspections to ensure that utility facilities in
the rights-of-way do not constitute a public safety hazard and
are in compliance. If they are not in compliance with such
standards, it authorizes the City to bring a complaint before
the PUC to seek compliance. It also allows the City to notify
the Utility of the existence of any non-compliant facilities to
voluntarily abate such violations. (Section 263B-3; Section
263D-1).
• direct a utility to “temporarily or permanently remove,
relocate, change, or alter the position of any facilities within
the Right-of-Way” under certain circumstances, including
“the construction, repair, maintenance, or installation of any
City or other public improvement,” “the operations of the
City,” the “vacation of a Street or the release of a utility
easement,” or during emergency situations. Section 263B-
4(6).
• imposition of an annual maintenance fee “in
connection with the ongoing use and occupancy of City
Rights-of-Way.” (Section 263B-5).
DRP - 6
• allows for the imposition of a penalty for a violation of
any provision of the Ordinance that is not within the
exclusive jurisdiction of the PUC. (Section 263D-1). (The
majority does not discuss this provision because it is not
preempted by its very terms.)
I see nothing at this stage of the proceeding in these provisions that is preempted by the
Public Utility Code and nothing that constitutes an “unreasonable regulation” within the
meaning of Section 1511(e) of the BCL.
Section 263B-3 of the City Code, which authorizes the City to inspect
public utility facilities to ensure that such facilities do not constitute a public safety
hazard and remain in compliance with PUC standards, does not make the City a
regulator, but is more like an instruction to the charged employees to make sure that
the right-of-way is safe for the public, the abutting owner and other users of the right-
of-way. If a public utility facility is in such a condition as to pose a public safety
hazard, Section 263D-1 only authorizes the City to file a complaint before the PUC to
see that the public safety hazard is abated or to seek voluntary compliance from the
public utility. Moreover, it follows the procedure specifically outlined in Section
1505(a) of the Public Utility Code, 66 Pa. C.S. §1505(a), set forth below.
The majority finds that Section 263B-4(6)’s provision allowing it to
grant to the City the power to order a public utility to remove, relocate, change or
alter the position of any facilities within the right-of-way whenever the City
determines that it is “reasonably necessary” to do so “or such shorter period in the
case of an emergency” is preempted. It cites to Section 1505(a) of the Public Utility
Code, which provides:
DRP - 7
Whenever the commission, after reasonable notice and
hearing, upon its own motion or upon complaint, finds
that the service or facilities of any public utility are
unreasonable, unsafe, inadequate, insufficient, or
unreasonably discriminatory, or otherwise in violation of
this part, the commission shall determine and prescribe, by
regulation or order, the reasonable, safe, adequate,
sufficient, service or facilities to be observed, furnished,
enforced, or employed, including all such repairs, changes,
alterations, extensions, substitutions, or improvements in
facilities as shall be reasonably necessary and proper for the
safety, accommodation, and convenience of the public.
66 Pa. C.S. §1505(a) (emphasis added). In essence, the majority reasons that the
power to determine where facilities are located in the right-of-way does not fall
within Section 1511(e) of the BCL giving municipalities the power to enact “lawful
and reasonable regulations” regarding the right-of-way because it is not a matter of
“local concern” and must be handled by the PUC as matter of statewide concern.
What that ignores is that what goes on in the right-of-way is a matter of
local concern because municipalities are the ones that own and maintain them. If, for
example, there is a gas line break 12 feet under a municipal water line, an order
directing that the water line be temporarily relocated is eminently reasonable. Squarely
put, the PUC could not issue such an order because it has no jurisdiction to order a
municipal entity to move the line. That is why the General Assembly authorized
municipalities to enact “reasonable regulations” concerning the public utilities’ use of
the right-of-way.
Moreover, we must remember that the right-of-way is a finite resource and
all of the public users have to be accommodated, not just the public utilities. The PUC
DRP - 8
only regulates public utility services and does not have any power over non-public
utility users of the right-of-way. If it is determined that a cable or a water line has to be
moved to accommodate a needed public utility service, it cannot order that those
facilities have to be moved; only the local municipality which owns the right-of-way in
trust for the public has the power to do so and to balance the interests of those involved.
Because Section 1511(e) of the BCL gives the power to municipalities to
enact reasonable regulations, the municipality owns the right-of-way and I would deny
PPL Electric Utilities Corporation’s application for summary relief for the foregoing
reasons. Accordingly, I respectfully dissent.
___________________________________
DAN PELLEGRINI, President Judge
Judge McGinley joins in this dissenting opinion.
DRP - 9 | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3066613/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Kolega, :
Petitioner :
:
v. : No. 2056 C.D. 2014
: Argued: September 17, 2015
State Civil Service Commission :
(Department of Education), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: October 15, 2015
Pamela Kolega petitions for review of the order of the State Civil
Service Commission (Commission) dismissing her appeal and affirming her
furlough by the Department of Education (Department) from her position of
English Language Education Advisor 2 (ELEA 2) under the Civil Service Act
(Act).1 We affirm.
1
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§741.1-741.1005. Section 3(s)
of the Act defines “furlough” as “the termination of employment because of lack of funds or of
work.” 71 P.S. §741.3(s). See also Section 101.1(a) of the Commission’s regulations, 4
Pa. Code §101.1(a) (“Furloughs shall occur only because of lack of funds or lack of work.”).
I.
Kolega is an older female, aged 65, and is disabled by chronic
rheumatioid arthritis. In May 1995, the Department hired her in the position of
Basic Education Associate 1 (BEA 1) in the Department’s Bureau of Teaching and
Learning (Bureau), Migrant Education Division. In June 2000, Kolega was
promoted to the position of World Language Education Advisor 2 in the Bureau’s
Curriculum Division. In June 2011, she was furloughed and was reassigned as the
only employee in the ELEA 2 position in the Bureau’s Curriculum Division.
Positions in the Curriculum Division are funded through the Commonwealth’s
general government operations (GGO) fund.
In February 2013, the Governor’s Budget Office issued the proposed
budget for the 2013-2014 fiscal year, which indicated that the Department would
be required to eliminate 21 GGO-funded positions. The Department chose to
abolish 18 vacant positions, and three Deputy Secretaries were directed to
eliminate one GGO-funded position each. The Department concluded that
Kolega’s duties could be performed by other employees based on a reorganization
plan and her GGO-funded ELEA 2 position was eliminated.
Kolega’s ELEA 2 position was covered by the collective bargaining
agreement (CBA) between the Commonwealth and the Federation of State Cultural
and Educational Professionals (Union), and the furlough procedures under the
CBA permit bumping to positions in classifications previously held in a seniority
unit.2 In August 2013, Kolega was advised of her furlough from the ELEA 2
2
Section 802(a), (c) of the Act provides, in relevant part:
(Footnote continued on next page…)
2
position and she accepted a bump to a vacant BEA 1 position in the Bureau’s
Student Services Division, a position that she had previously held.
II.
In August 2013, Kolega filed an appeal of the furlough and the bump
demotion.3 She alleged that the demotion was improper because: her ELEA 2
(continued…)
An employe shall be furloughed only if at the time of furlough, the
employe is within the lowest quarter among all employes of the
employer in the same class on the basis of their last regular service
ratings, and within this quarter the employe shall be furloughed in
the order of seniority unless there is in existence a labor agreement
covering the employes to be furloughed, in which case the terms of
such labor agreement relative to a furlough procedure shall be
controlling: Provided, That the appointing authority may limit the
application of this provision in any particular instance to employes
in the same class, classification series or other grouping of
employes as referred to in any applicable labor agreement, and
which are in the same department or agency within the same
bureau or division…. Under the rules a regular employe
furloughed shall for a period of one year be given preference for
reemployment in the same class of position from which furloughed
and shall be eligible for appointment to a position of a similar class
in other agencies under this act unless the terms of an existing
labor agreement preclude the employe from receiving the
preferential treatment contained in this section in which event the
terms of the labor agreement shall be controlling.
71 P.S. §741.802(a), (c). See also Section 101.1(l) of the Commission’s regulations, 4 Pa. Code
§101.1(l) (“If there is a labor agreement covering the employees to be furloughed, the terms of
the agreement as to furlough and reemployment procedures shall be controlling.”).
3
Section 3(r) of the Act defines “demotion” as the “voluntary or involuntary movement
of an employee to a class assigned to a pay range with a lower maximum salary.” 71 P.S.
§741.3(r).
3
position was federally funded and should not have been affected by the state
budget; the Department never implemented the proposed reorganization supporting
her furlough; the Department lacked the authority to eliminate the ELEA 2 position
because it was “critical;” and the position was never really eliminated because it
appeared as “Vacant” on the Department’s website as of November 2013.
Kolega also alleged traditional discrimination due to her age and
disability, as well as that her furlough was taken in retaliation for prior actions she
brought before the Pennsylvania Human Relations Commission (PHRC). Kolega
also alleged technical discrimination because: the Department failed to
demonstrate lack of funds or lack of work as required by the Act; the Department
failed to comply with the requirements of Section 101.1(c) and (d) of the
Department’s regulations regarding furloughs;4 and the Department targeted her as
4
4 Pa. Code §101.1(c), (d). Section 101.1(c) and (d) state:
(c) Furlough units. Furloughs will be conducted within approved
furlough units. For purposes of this section, a furlough unit shall
be defined as all employees in the classification within an affected
institution, division, bureau or a combination of the institutions,
divisions or bureaus within an agency. Each appointing authority
will submit recommended furlough units to the Director. Once
approved by the Director, these furlough units will be used for
subsequent furloughs. Changes to the approved furlough units
shall be submitted to and approved by the Director prior to their
use in subsequent furloughs.
(d) Order of furlough. When a furlough is necessary, the last
annual or probationary performance evaluations, as applicable, of
regular employees in the same furlough unit and class shall be
converted to categories or relative ranks. The employees will be
placed into quarters, and those in the lowest quarter will be
furloughed or returned under subsection (e), in the inverse order of
(Footnote continued on next page…)
4
a unit of one because there were 50 or more other GGO-funded employees in the
Office of Elementary and Secondary Education that could have been furloughed.
At hearing, Rita Perez (Perez), the Bureau’s Director at the time of the
furlough, testified that she managed the Curriculum, Federal Programs, Student
Services and Planning Division, including each division’s program and personnel.
She stated that there were a total of 21 positions that were abolished in August
2013, 18 of which were vacancies and three actual positions that were furloughed
which included Kolega’s position. Perez testified that Kolega was furloughed as
part of an overall Department deputate reorganization plan that included collapsing
the Bureau of Assessment into the Bureau of Teaching and Learning to repurpose
two divisions in each bureau. Perez stated that following review, they determined
that they had the staffing necessary in both bureaus in English Language Arts and
did not need the third Language Arts position, Kolega’s position, to accomplish
necessary tasks because there were already two federally-funded Education
Assessment Specialists in the Assessment Bureau. She explained the
appropriateness of Kolega’s furlough as follows:
It was appropriate because we already had two
folks in the Bureau of Assessment who focused on
English Language Arts type of assessments. Moving
forward in that position, the Department is to focus more
on the assessment part of curriculum and assessment.
(continued…)
classified service seniority. Seniority for this purpose shall be the
length of continuous service in the classified service if there has
been no break in service.
5
We had two people filling that position, and we did not
need a third person.
(Reproduced Record (RR) at 88a-89a).
Perez testified that she first became aware of the furloughs during
budget discussions with the Department’s Deputy Secretary at that time, Carolyn
Dumaresq (Dumaresq), and the Chief of Staff at that time, David Folkman. She
stated that she made the decision to furlough Kolega in collaboration with
Dumaresq. She testified that she did not discriminate against Kolega on the basis
of age, disability or any other non-merit factor and did not retaliate against Kolega.
Diane Hershey (Hershey), the Director of the Bureau of Human
Resources, testified that the Governor’s Budget Office issued a proposed budget in
February 2013 requiring the elimination of 21 GGO positions. She stated that she
found 18 vacant GGO positions that were eliminated and that three program
deputies recommended the remaining three GGO positions that would be
eliminated: an Education Executive 1 position in the Office of Child Development
and Early Learning; a clerk typist from the Office of Post-Secondary Education;
and Kolega’s ELEA 2 position in the Office of Elementary and Secondary
Education. She testified that Kolega’s position “[w]as not federally funded. It was
GGO funded from July 1st, 2006. I can’t remember exactly when [Kolega’s
predecessor] started. But the federal money was dried up, was eliminated. So we
moved the job to general government operations, GGO money July 1 st, 2006.”
(RR at 158a). Hershey acknowledged that Kolega’s Exhibit 16 showed that the
Department’s website listed Kolega’s ELEA 2 position as “Vacant,” but that the
6
Department’s press office prepares the website and that that position had been
abolished. (Id. at 159a, 160a).
Hershey stated that the reason that Kolega’s position was chosen for
elimination was because “there’s two employees [in the Assessment Bureau] doing
assessment work relative to English Language” and “[w]e would have duplicative
… work because there are two positions in assessment, Bureau of Assessment and
Accountability that are performing the assessment work.” (RR at 156a, 544a).
She testified that the clerk typist was able to bump into a federally-funded position
and that Kolega was able to bump into the BEA 1 position under the CBA. She
stated that she prepared a letter for the acting Department Secretary requesting
approval of the furlough by the Secretary of Administration; the furlough was
approved; Kolega was notified that she was to be furloughed and that she could
bump into the BEA 1 position that she previously held, one pay scale group lower,
because there were no other ELEA 2 or ELEA 1 positions; and that Kolega elected
to accept the offered position. Hershey stated that she was involved in various
efforts to accommodate Kolega’s disability and that she never denied any of the
requests for accommodation. Hershey denied that she discriminated against
Kolega based on age, disability or any other non-merit factor and did not retaliate
against Kolega.
The Union’s President, William Betrand, testified for Kolega that he
was notified by e-mail of the Department’s decision to furlough Kolega. He stated
that he met with representatives of the Department and the Office of
7
Administration to inquire into the reasoning for Kolega’s furlough. He testified
that he is not aware of any violation of the CBA’s process in Kolega’s furlough.
Kolega testified that at an August 2013 meeting, she was given a copy
of the written notice of furlough which stated that she “was being furloughed for
economic reasons,” and that she “would be demoted to an EL[E]A 1 in another
division.” (RR at 344a). She stated that she was not told that her ELEA 2 position
was being eliminated at that meeting, but she was told that only the GGO
complement had been reduced as opposed to federally-funded positions. She
explained that in her prior position, she was responsible for overseeing the English
language standards contained in the “Pennsylvania Core Standards,” as provided in
the Department’s regulations.5 She testified that the mathematics advisor and a
number of younger individuals designated as contacts on other areas of study were
not furloughed, and that contractors and consultants are currently overseeing the
English language standards. She stated that she was told that the ELEA 2 position
was going to be federally-funded when she was placed in that position in July
2011, and that her predecessor in the position, Jo Beth McKee, had been federally-
funded, but that her travel expenses were state-funded. (RR at 372a-375a).
5
See Section 4.3 of the Department’s regulations, 22 Pa. Code §4.3 (“Pennsylvania Core
Standards—Academic standards for English language arts and mathematics based upon a
Nationwide, state-led process coordinated by the National Governors Association and the
Council of Chief State School Officers and in collaboration with teachers, content experts and
other education stakeholders. The standards define the knowledge and skills students should
have within their K-12 education careers so that they will graduate high school able to succeed in
entry-level, credit-bearing academic college courses and in work-force training programs.”).
8
Kolega also testified regarding her 2008 and 2013 requests for
accommodations under the Americans with Disabilities Act6 (ADA) and noted that
some had been accepted based upon her 2008 request. She stated that the 2013
request reiterated the 2008 request because she had a supervisor who had
complained about her needing assistance, and that in July 2013, the Department
approved the same accommodations as previously granted. She testified that the
ADA accommodations were part of her complaint to the PHRC. Kolega
acknowledged that she is currently the Department’s Refugee Program Officer
with bi-weekly pay of $2,715.00.
Sarah Flaherty, the Acting Chief of the Curriculum Division, testified
for Kolega that she was not aware of the planned reorganization and that she was
not consulted regarding the Department’s furlough decisions. She stated that Perez
told her over the telephone about Kolega’s furlough and where Kolega was moving
in the Department. She testified that while she has worked with contractors with
respect to English Language Arts, the contractor that she has been working with,
Jean Dyszel, has not been performing English Language Arts duties and she does
not know who, if anyone, is performing Kolega’s former duties.
Barbara Dychala, the Department’s Labor Relations Coordinator,
testified that she did not participate in any furloughs, but she coordinated and
participated in the August 2013 meet and discuss meeting that the Union had
requested. She stated that the matters discussed at that meeting related to Kolega’s
6
42 U.S.C. §§12101-12213.
9
furlough and that she summarized the meeting and responded to the concerns
expressed there in a September 2013 letter.
John Gasdaska, the Office of Administration’s Director of Labor
Relations, testified that his primary role in furlough actions is to implement the
contractual seniority provisions and to provide notification to the relevant union.
He acknowledged that “the agency has broad discretion in that area to show lack of
money and how they are going to address it [through furloughs],” (RR at 488a),
and that he did not discuss with Hershey whether the English Language Arts
position was critical. He stated that he participated in the August 2013 meet and
discuss meeting, but that the Department researched the issues that were discussed
and prepared and sent the response.
Debra Jenkins (Jenkins), a budget analyst in the Department’s Bureau
of Budget and Fiscal Management, testified that she deals with cost codes which
are used to charge accounts for payment. She stated that she prepared statements
recording the cost codes used by the Department for the ELEA 2 position in 2010
and 2011. She testified that the ELEA 2 position was paid with federal funds when
it was held by McKee in 2010, and that the ELEA 2 position was paid with GGO
funds when it was held by Kolega in 2011. (RR at 515a-517a). She stated that
“[in] 2008, Jo Beth McKe[e] had applied for and received a Striving Reader Grant
and a Reading Recovery Grant so she was managing federal funding. So it was
deemed her position could be federally funded and not be in federal audit.” (Id. at
525a). Nevertheless, she testified that when Kolega went into the ELEA 2
position, it was state-funded. (Id. at 519a).
10
III.
The Commission dismissed Kolega’s appeal. Regarding Kolega’s
claim that the ELEA 2 position was federally-funded, the Commission noted that
the only evidence that she offered in support was her own testimony. However, it
noted, though, that Kolega’s own witness, Jenkins, testified that even though
Kolega’s predecessor in the position applied for and received federal funding, her
position was state-funded through GGO funds as of October 2011. As a result, the
Commission “conclude[d] that [Kolega] has failed to refute the [Department]’s
inclusion of her position as subject to the GGO-based reduction.” (RR at 891a).
The Commission also rejected Kolega’s claims that the Department
relied upon the staffing proposals in a never-fully-implemented reorganization
plan, and that her ELEA 2 position was “critical” and had not actually been
eliminated. The Commission determined that the fact that the reorganization plan
was never fully implemented was irrelevant, because credible evidence was
proffered that the reason that the Department eliminated her position was because
there were other personnel who could perform her duties. The Commission also
rejected Kolega’s assertion that the ELEA 2 position was “critical,” noting that
“[w]hile the Code clearly emphasizes the importance of the English Language
Arts, we have found no language dictating that the [Department]’s responsibilities
be performed by the ELEA 2 or any other designated position.” (RR at 892a n.
10). The Commission likewise rejected Kolega’s claim that the ELEA 2 position
was not eliminated, noting her evidence in support and stating that “[t]he
[Department] has, through Hershey, introduced credible testimony establishing that
the position has, in fact, been abolished.” (Id. at 892a).
11
The Commission explained that because Kolega brought her age and
disability traditional discrimination claims under Section 951(b) of the Act, she
had the initial burden “to present evidence that, if believed and otherwise left
unexplained, indicates that more likely than not discrimination has occurred”
thereby establishing a presumption of discrimination requiring the Department to
“introduce evidence of a ‘non-discriminatory explanation’ for the challenged
personnel action.” (RR at 892a-893a) (citations omitted). The Commission
concluded that “[w]hile her presentation may be deemed adequate to meet the
standard for a prima facie claim, the [Department]’s non-discriminatory
explanation—i.e., credible testimony that the English Language Arts duties could
be performed by others ([RR at 156a-157a])—was sufficient to persuade this
Commission that [Kolega]’s age and disability were not the reasons for the
[Department]’s decision. (Id. at 893a). As a result, the Commission dismissed
Kolega’s age-based and disability-based discrimination claims because they were
not “supported by credible evidence of an intent to discriminate.” (Id.).
Regarding Kolega’s technical discrimination claim under the Act that
its provisions were not followed, the Commission determined that sufficient
credible evidence establishing a prima facie lack of funds was submitted “through
the presentation of the Budget proposal withdrawing funding for twenty-one
positions,” and a prima facie lack of work “through testimony establishing that
[Kolega]’s position was, in good faith, eliminated in compliance with the proposed
funding reduction.” (RR at 894a). As a result, the Commission dismissed
Kolega’s argument in this regard “having found both a lack of funds and a lack of
work.” (Id.).
12
In regards to Kolega’s technical discrimination claims that the Code
provisions were not followed, the Commission found that they “have not been
explained either at hearing or in her post-hearing Brief.” (RR at 894a).
Nevertheless, the Commission noted that both the Act and the Code “give[]
precedence to the terms of labor agreements relative to furlough procedure” and
that the Department presented credible evidence that Kolega’s ELEA 2 position
was subject to the terms of the CBA with the Union and that the CBA included a
statement on the furlough procedures. (Id. at 894a-895a). As the Commission
explained:
As has been noted the procedure used to determine the
effect of the decision to abolish [Kolega]’s position and
[Kolega]’s furlough rights was based upon the [CBA]
covering that position. The Commonwealth Court of
Pennsylvania, in Scuoteguazza et al. v. Commonwealth,
Department of Transportation et al., [368 A.2d 869 (Pa.
Cmwlth. 1977)], advised the Commission that while the
Commission retained jurisdiction to determine the
sufficiency of the agency’s justification for furlough—
i.e., whether the agency has proven the existence of a
lack of funds or a lack of work sufficient to necessitate a
furlough—the Commission is not empowered to interpret
the [CBA] to determine whether the agency adhered to a
furlough procedure established thereunder.
(Id. at 895a n. 13). As a result, the Commission denied Kolega’s technical
discrimination claims.
Finally, regarding Kolega’s retaliation claim, the Commission noted
that she alleged that she had filed three separate age, disability and retaliation
discrimination complaints with the PHRC, and that her furlough and demotion
13
were causally related thereto. However, because the Act does not provide a
standard for reviewing retaliation claims, the Commission applied the standard for
reviewing traditional discrimination claims and found that Kolega “failed to
present evidence sufficient to show any causal connection between her PHRC
complaints and her furlough; without such evidence, [her] allegation of retaliation
has been deemed unproven.” (RR at 895a-896a). The Commission also applied
the standard used to establish a prima facie case of retaliation before the PHRC,
and found that “[b]ased upon our ruling, it is apparent that, even using a specific
retaliation standard, [Kolega]’s claim would have been dismissed.” (Id. at 896a n.
14).
IV.
A.
In this appeal,7 Kolega first argues that the Commission’s
determination that she was properly furloughed under Section 802 of the Act due
to lack of funds or lack of work is not supported by substantial evidence.
7
This Court’s scope of review of a Commission adjudication is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
has been committed or whether constitutional rights have been violated. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. §704; Pennsylvania Game Commission v. State Civil
Service Commission, 747 A.2d 887, 891 (Pa. 2000). Substantial evidence is such relevant
evidence as a reasonable mind might accept to support a conclusion. Shade v. Civil Service
Commission, 749 A.2d 1054, 1056 n.5 (Pa. Cmwlth.), appeal denied, 764 A.2d 52 (Pa. 2000).
The Commission is the sole fact finder in civil service cases, and it has the exclusive authority to
assess witness credibility and evidentiary weight. Bosnjak v. State Civil Service Commission,
781 A.2d 1280, 1286 (Pa. Cmwlth. 2001). As a result, this Court will not disturb the
Commission’s determinations regarding credibility or the weight of the evidence. Id. In
reviewing a Commission decision, this Court views the evidence and all reasonable inferences
arising therefrom in a light most favorable to the prevailing party. Id.
14
Specifically, Kolega asserts that there is no credible evidence demonstrating a lack
of funds because she presented credible evidence that her ELEA 2 position was
federally-funded. She contends that there is no credible evidence demonstrating a
lack of work because her ELEA 2 position was not eliminated, the proposed
Department reorganization never took place, and no reason for the furlough was
provided at the time that it was implemented.
The Department bears the burden of proof and the burden of going
forward to make a prima facie showing that there was a lack of funds or lack of
work. See Dougherty v. Department of Health, 538 A.2d 91, 93 (Pa. Cmwlth.
1988) (stating that the burden of proof is on the employer to establish a lack of
funds or a lack of work in civil service appeals). In order for a furlough to be
based upon a lack of funds, there must be insufficient revenue to meet all financial
demands unless modifications are made in the Department. Bumba v.
Pennsylvania State System of Higher Education, 734 A.2d 36, 38 (Pa. Cmwlth.
1999), appeal denied, 757 A.2d 935 (Pa. 2000); County of Beaver v. Funk, 492
A.2d 118, 121 n.6 (Pa. Cmwlth. 1985); Forbes v. Department of Transportation,
434 A.2d 892, 894 n.4 (Pa. Cmwlth. 1981). However, a furlough based on a lack
of funds does not require a showing of bankruptcy; “[a] ‘lack of funds’ exists when
insufficient revenue is available to meet all financial demands unless modifications
are made in the system.” Id.
A furlough based on a lack of work is proper when “the amount of
work the employee is performing does not warrant [her] retention in view of the
fact that the employee’s work can more efficiently, from a cost or operational
15
standpoint, be performed through reassignment to others.” Department of State v.
Stecher, 484 A.2d 755, 758 (Pa. 1984). To show that a furlough was properly
based upon a lack of work, the employer must show that: (1) a position was
eliminated; (2) a reorganizational streamlining occurred; and (3) management
believed in good faith that the employee’s work could be conducted more
efficiently in the absence of the eliminated position. Id. at 759; Haskins v.
Department of Environmental Resources, 636 A.2d 1228, 1229 (Pa. Cmwlth.
1994). However, whether the employer could or should have cut other positions
instead of the appellant’s is not an issue before us; management, rather than the
courts, is entrusted with the discretion to determine what actions will best promote
the efficiency of the agency’s service to the public. Stecher, 484 A.2d at 758;
Stover v. Department of Environmental Resources, 636 A.2d 1275, 1277 (Pa.
Cmwlth. 1994); Vovakes v. Department of Transportation, 453 A.2d 1072, 1074
(Pa. Cmwlth. 1982). “[W]hen an agency determines that necessary work can be
performed adequately with fewer employees, thus saving Commonwealth funds,
that agency is obliged to ‘tighten up’ its work force by eliminating excess
positions.” Haskins, 636 A.2d at 1229.
Contrary to Kolega’s assertion as outlined above, there is ample
substantial evidence supporting the Commission’s determinations that her furlough
was due to both lack of funds and lack of work. Perez testified that Kolega was
furloughed as part of an overall Department reorganization that included collapsing
the Bureau of Assessment into the Bureau of Teaching and Learning to repurpose
two divisions in each, and that it was determined that they had the necessary
staffing in both bureaus in English Language Arts and did not need Kolega’s
16
position because of the two federally-funded Education Assessment Specialists in
the Assessment Bureau. (RR at 88a-89a). Jenkins, Kolega’s witness, testified that
the ELEA 2 position was paid with federal funds when it was held by McKee in
2010, and that the ELEA 2 position was paid with GGO funds when it was held by
Kolega in 2011. (Id. at 515a-517a). Hershey also testified that Kolega’s position
was paid with GGO funds. She also acknowledged that while Kolega’s Exhibit 16
showed that the Department’s website listed Kolega’s ELEA 2 position as
“Vacant,” the Department’s press office prepares the website and that that position
had, in fact, been abolished. (Id. at 159a, 160a). She stated that the reason that
Kolega’s position was chosen for elimination was because there were already two
employees in the Assessment Bureau doing assessment work in English Language
Arts and that there was duplicative work based on those two federally-funded
positions. (Id. at 156a, 544a).
Additionally, Kolega’s furlough letter stated that she was being
furloughed “due to a lack of funds.” (RR at 309a). Moreover, it is immaterial
even if no reason for the furlough had been provided Kolega at the time that it was
implemented. A furlough, unlike other actions such as a termination for cause, is
not predicated upon specific acts by the employee but, rather, external economic
pressures and workplace reorganizations that are not easily distilled; for this
reason, neither the Act nor the Commission’s regulations require that the notice of
furlough include a discussion of the justifications which the employer would later
use if the furlough is challenged. Martin v. State Civil Service Commission
(Department of Community and Economic Development), 741 A.2d 226, 230-31
(Pa. Cmwlth. 1999) (stating that a furlough is not an adverse employment
17
determination requiring notice of the basis for the action); Section 105.3 of the
Commission’s regulations, 4 Pa. Code §105.3 (providing that only “[n]otices of
removal, involuntary demotion or suspension issued to regular employees shall
include a clear statement of the reasons therefore, sufficient to apprise the
employee of the grounds upon which the charges are based….”). As a result, the
purported absence of reasons for Kolega’s furlough at the time of its
implementation does not preclude the Department from raising those issues in her
Commission appeal.
B.
Kolega next argues that the Commission erred in determining that the
Department did not engage in either technical discrimination or discrimination
based on her age or disability or in retaliation for her complaints to PHRC. We do
not agree.
There are two categories of discrimination that may be appealed to the
Commission under Section 951(b) of the Act: “traditional discrimination” and
“technical discrimination.” Pronko v. Department of Revenue, 539 A.2d 456 (Pa.
Cmwlth. 1988). Traditional discrimination claims under Section 905.1 of the Act 8
are based on factors such as race, sex, age, disability and national origin. Id. at
462. Technical discrimination claims are based on technical and procedural
violations of the Act and related regulations. Reck v. State Civil Service
Commission, 992 A.2d 977, 980 n.3 (Pa. Cmwlth. 2010). In order to obtain relief
8
Added by Act of August 27, 1963, P.L. 1257, 71 P.S. §741.905a.
18
for technical discrimination, an employee must show that she was, in fact, harmed
because of the technical non-compliance with the Act or evidence that because of
the peculiar nature of the procedural impropriety, she could have been harmed but
there is no way to prove that for certain. Price v. Luzerne/Wyoming Counties Area
Agency on Aging, 672 A.2d 409, 413 (Pa. Cmwlth. 1996), appeal denied, 688 A.2d
174 (Pa. 1997).
1.
In traditional discrimination claims arising under Section 905.1 of the
Act, the employee claiming discrimination in personnel actions has the burden of
presenting evidence to support such a charge. Cola v. State Civil Service
Commission (Department of Conservation & Natural Resources), 861 A.2d 434,
436 (Pa. Cmwlth. 2004). In Moore v. State Civil Service Commission (Department
of Corrections), 922 A.2d 80, 85 (Pa. Cmwlth. 2007), this Court addressed the
standard of proof for traditional discrimination claims enunciated by the Supreme
Court in Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human
Relations Commission, 532 A.2d 315, 319 (Pa. 1987).
First, the plaintiff must produce sufficient evidence to establish a
prima facie case. Moore, 922 A.2d at 85. To do so, the plaintiff must present
sufficient evidence that, if believed and otherwise unexplained, indicates more
likely than not that discrimination occurred. Id. Given the critical role of
circumstantial evidence in discrimination cases, the prima facie burden of proof is
not an onerous one. Id. Absent a credible response from the defendant, a
presumption of discrimination arises and the plaintiff’s prima facie case stands
19
determinative of the factual issue of the case. Id. If, however, the defendant offers
a non-discriminatory explanation for the personnel action, the presumption drops
from the case. Id. As in other civil litigation, the tribunal must then evaluate the
entire body of evidence under the preponderance standard and determine which
party’s explanation of the employer’s motivation it believes. Id.
Regarding Kolega’s traditional discrimination claim, the Commission
found that “the [Department]’s non-discriminatory explanation—i.e., credible
testimony that the English Language Arts duties could be performed by others
([RR at 156a-157a])—was sufficient to persuade this Commission that [Kolega]’s
age and disability were not the reasons for the [Department]’s decision.” (Id. at
893a). As outlined above, there is ample substantial evidence to support this
determination that the furlough was purely based on non-discriminatory factors.
2.
Kolega alleges that the Commission erred in failing to find technical
discrimination because the Department failed to furlough her in accordance with
the seniority provisions of the Act9 and Article 24, Section 7 of the CBA.10
9
As noted above, Section 802(a) of the Act states, in relevant part, “That the appointing
authority may limit the application of this provision in any particular instance to employes in the
same class, classification series or other grouping of employes as referred to in any applicable
labor agreement, and which are in the same department or agency within the same bureau or
division….” 71 P.S. §741.802(a).
10
Article 24, Section 7 of the CBA states, “In any class within the unit affected by
layoffs or furloughs, all emergency, temporary and provisional employees shall be laid off or
furloughed before any other employee.” (RR at 630a).
20
Specifically, she argues that provisional or temporary employees are to be removed
or furloughed before regular employees and that a consultant was hired to perform
the duties of her position. However, the Commission found credible Hershey’s
testimony that “there’s two employees [in the Assessment Bureau] doing
assessment work relative to English Language” and that “[w]e would have
duplicative … work because there are two positions in assessment, Bureau of
Assessment and Accountability that are performing the assessment work.” (RR at
156a, 544a). There was no Commission finding that the employees that were
retained were provisional or temporary employees in violation of either the Act or
the CBA.
3.
With respect to her retaliation claim, the Commission found that she
“failed to present evidence sufficient to show any causal connection between her
PHRC complaints and her furlough; without such evidence, [her] allegation of
retaliation has been deemed unproven,” and that under the standard used by the
PHRC to establish a prima facie case of retaliation, “[b]ased upon our ruling, it is
apparent that, even using a specific retaliation standard, [Kolega]’s claim would
have been dismissed.” (RR at 895a-896a n. 14). While Kolega cites evidence
demonstrating, perhaps, that her furlough was temporally related to the retirement
of her former supervisor against whom she had filed the PHRC complaints, she
does not cite to any evidence found credible by the Commission which
demonstrates the causal relation between the reports and her furlough. Simply, the
Commission accepted as credible the Department’s non-discriminatory motivation
21
for her furlough and bump into the vacant BEA 1 position in the Bureau’s Student
Services Division and we will not disturb that determination on appeal.
C.
Finally, Kolega argues that the Commission erred in failing to take
judicial notice11 that the Department’s website stated that her ELEA 2 position is
vacant. However, in disregard of Pa. R.A.P. 2117(c) and 2119(e), Kolega has
failed to include in her brief any statement advising us of the manner in which the
issue was raised before the Commission and the place in the record where the
preservation of this issue may be found. Therefore, we deem this argument
waived.12 Moreover, even if it is assumed that the Commission was required to
11
As this Court has explained:
“Official notice” is the administrative counterpart of judicial notice
and is the most significant exception to the exclusiveness of the
record principle. The doctrine allows an agency to take official
notice of facts which are obvious and notorious to an expert in the
agency’s field and those facts contained in reports and records in
the agency’s files, in addition to those facts which are obvious and
notorious to the average person. Thus, official notice is a broader
doctrine than is judicial notice and recognizes the special
competence of the administrative agency in its particular field and
also recognizes that the agency is a storehouse of information on
that field consisting of reports, case files, statistics and other data
relevant to its work.
Falasco v. Pennsylvania Board of Probation and Parole, 521 A.2d 991, 995 n.6 (Pa. Cmwlth.
1987) (citations omitted).
12
See, e.g., In re Condemnation of Land for South East Central Business District
Redevelopment Area No.1, 946 A.2d 1154, 1156 (Pa. Cmwlth), appeal denied, 968 A.2d 233
(Pa. 2008), cert. denied, 556 U.S. 1208 (2009) (“[T]he statement of the case and/or argument
portion of a brief must contain a ‘specific reference to the places in the record’ where the ruling,
(Footnote continued on next page…)
22
take notice that the Department’s website stated that the ELEA 2 position was
vacant, as noted above, Hershey acknowledged that while Kolega’s Exhibit 16
showed that the Department’s website listed Kolega’s ELEA 2 position as
“Vacant,” the Department’s press office prepares the website and that that position
had, in fact, been abolished. (RR at 159a, 160a). As a result, any purported error
in this regard was harmless as the credible evidence rebutted the information on the
website.
Accordingly, the Commission’s order is affirmed.
________________________________
DAN PELLEGRINI, President Judge
(continued…)
or exception thereto, appears in order to show that the question before the court was timely and
properly raised below so as to preserve the question on appeal. Pa. R.A.P. 2117(c); Pa. R.A.P.
2119(e).”).
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Kolega, :
Petitioner :
:
v. : No. 2056 C.D. 2014
:
State Civil Service Commission :
(Department of Education), :
Respondent :
ORDER
AND NOW, this 15th day of October, 2015, the order of the State
Civil Service Commission dated October 15, 2014, at No. 27958, is affirmed.
________________________________
DAN PELLEGRINI, President Judge | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1351408/ | 802 P.2d 1156 (1990)
Gunther HOMMEL, Helen Hommel, Roger Anderson, Joanne Anderson, Robert Lennon, Joan Lennon, Fredda Fisher, Paul Timm, Joel Collier, Barbara Allred, Dennis Kenny, Richard Kuehster, Jack Christenson, Bruce Shawcraft, David Archer, Loreen Archer, James Fiedler, James Daily, and Juanita Daily, Plaintiffs-Appellants,
v.
Allen L. GEORGE, Defendant, and Concerning:
American Family Mutual Insurance Company and Travelers Insurance Company, Garnishees-Appellees.
No. 89CA1085.
Colorado Court of Appeals, Div. I.
August 16, 1990.
Rehearing Denied September 6, 1990.
Certiorari Denied December 17, 1990.
*1157 Long & Jaudon, P.C., Robert M. Baldwin, Denver, for plaintiffs-appellants.
Burg & Eldredge, P.C., Peter W. Burg, Tom Van Buskirk, Denver, for garnishee-appellee American Family Mut. Ins. Co.
Norman & Mirabella, Michael J. Mirabella, Lakewood, for garnishee-appellee Travelers Ins. Co.
Opinion by Judge DAVIDSON.
Plaintiffs, individual investors in the Sellers Landing Limited Partnership, appeal the summary judgment entered in favor of garnishees, American Family Mutual Insurance Company and Travelers Insurance Company. We affirm.
Defendant in the underlying case, as a general partner, and investors, as limited partners, formed the Sellers Landing Limited Partnership for the purpose of developing the Sellers Landing Condominium Project. Investors contributed capital, and defendant's company, as general contractor, built the condominiums for ultimate sale.
As part of his agreement with the Partnership, defendant obtained a standard builder's general liability policy for personal injury and negligence claims, first with American Family and then with Travelers. Both policies, in identical language, provided coverage for property damage, defining it, in pertinent part, to include "the loss of use of tangible property which has not been physically injured or destroyed."
Defendant did not sell or complete construction of the units and eventually the project was foreclosed upon. Investors sued defendant for damages consisting of compensation for the unpaid amount of capital contribution to the Partnership and for lost profits. Defendant subsequently confessed judgment, and, in an effort to collect on their judgment, investors served writs of garnishment on the insurers, claiming coverage for their investment losses.
All parties filed motions for summary judgment. The trial court determined that the investors' loss was not included within the coverage provisions of either insurer, granted summary judgment in favor of the insurers, and released the writs of garnishment.
The dispositive issue in this appeal is whether investors' damages are included in coverage for loss of use of tangible property. We hold that such damages are not and, therefore, affirm.
Tangible property is that which is capable of being handled, touched, or physically possessed. Lamar Truck Plaza, Inc. v. Sentry Insurance, 757 P.2d 1143 (Colo. App.1988). The condominiums foreclosed upon in this case undisputedly can be so characterized.
*1158 However, purely economic losses are intangible. Travelers Indemnity Co. v. State, 140 Ariz. 194, 680 P.2d 1255 (App. 1984). Thus, while the loss of use of tangible property includes such property which has diminished in value or been made useless irrespective of any physical injury to the property, the phrase does not include mere economic damages in the nature of loss of investments, anticipated profits, and financial interests. L. Ray Packing Co. v. Commercial Union Insurance Co., 469 A.2d 832 (Me.1983).
In accordance with these principles, the trial court concluded that "the loss sustained by these plaintiffs was the loss of their investment and possible profits which [are] not tangible property." Investors argue, however, that they are not claiming economic injury, but consequential damages of injury to tangible property. Specifically, they argue that the condominiums were to be used to generate funds to return their investments and, solely because of defendant's negligence, they lost the "use" of the condominiums. Thus, the lost investments and profits which they suffered resulted from the loss of the use of tangible property. We disagree.
First, we do not agree with investors that, by the foreclosure, they lost "use" of the condominiums. Investors neither owned nor occupied the condominium units. In fact, the undisputed evidence in the record is that investors' sole interest in the Sellers Landing Condominium Project is their interest as limited partners in the Partnership.
No partnership agreement to the contrary was included in the record; therefore, each investor's interest consists only of his or her contributions, which ultimately are distributable on the basis of the value of the contribution made by each partner. Section 7-62-504, C.R.S. (1986 Repl.Vol. 3A). Similarly, any profits or losses are allocated on the same basis. Section 7-62-502, C.R.S. (1986 Repl.Vol. 3A). Although the nature of a limited partner's contribution is not necessarily restricted, unless otherwise agreed, any distribution of contributions or profits must be in cash. Section 7-62-605, C.R.S. (1986 Repl.Vol. 3A). Furthermore, the trial court found, and each investor admits, that he or she does not individually hold any fee title interest in any of the condominium units or in the Sellers Landing Project itself.
The cases cited by investors in support of their argument that they have sufficiently alleged a loss of use of tangible property are inapposite. In contrast to the circumstances at issue, the plaintiff in each of those cases owned the injured property and used it directly in its business. See First Newton National Bank v. General Casualty Co., 426 N.W.2d 618 (Iowa 1988) (farm); Federated Mutual Insurance Co. v. Concrete Units, 363 N.W.2d 751 (Minn. 1985) (grain silos); Western Casualty & Surety Co. v. Burdrus, 112 Wis. 2d 348, 332 N.W.2d 837 (Wis.App.1983) (seed); Guerin Contractors, Inc. v. Bituminous Casualty Corp., 636 S.W.2d 638 (Ark.App. 1982) (store).
Because investors here were neither owners nor occupants of the condominiums, they did not lose their property. Moreover, we do not consider that any loss of any ostensible right to have the condominiums sold and the proceeds applied to repay their investments is a loss of use of the condominiums "in any ordinary sense of the word." See Bank of Montana v. Travelers Insurance Co., 870 F.2d 1504 (9th Cir. 1989) (construing policy provisions identical to those here, court rejected plaintiffs' argument that their economic losses which resulted from the loss of their right to claim a security interest in certain property constituted a loss of use of tangible property).
Second, an examination of the investors' underlying complaint belies their contention that they are claiming more than mere economic injury; nowhere in the complaint is there an allegation of damages or injury to the condominiums. Instead, through theories of implied contract, misrepresentation, breach of fiduciary duty, and promissory estoppel, their complaint shows that investors are seeking relief for the loss of use, not of the condominiums, but of their investments and profits, specifically, repayment *1159 of their respective capital contributions and lost profits. Also, we note in each investor's responses to discovery, the only damage claimed is "the portion of the investment not returned," and each investor defines the alleged "loss of use" of the Sellers Landing Condominium Project as the "[expectation that] an investment [be] returned from the sale of the project."
Thus, the trial court correctly characterized the injury alleged as injury to the investments, not to the condominiums. See Lamar Truck Plaza v. Sentry Insurance Co., supra.
Accordingly, the judgment is affirmed.
PIERCE and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353315/ | 614 S.E.2d 101 (2005)
273 Ga. App. 103
BARDO et al.
v.
LISS et al.
No. A05A0778.
Court of Appeals of Georgia.
April 6, 2005.
Reconsideration Denied April 27, 2005.
*102 Neal H. Howard, Columbus, William D. James, Atlanta, for appellants.
Robert C. Martin, Jr., Gregory Ellington, Hatcher, Stubbs, Land, Hollis & Rothschild, Columbus, for appellees.
ANDREWS, Presiding Judge.
Cynthia Bardo sued Jonathan L. Liss, M.D. in a complaint which alleged that, as a result of Dr. Liss's professional and ordinary negligence, she suffered injuries when she *103 fell from an examination table in Dr. Liss's medical office. The suit also named Dr. Liss's professional corporation, Jonathan L. Liss, M.D., P.C. (Liss P.C.), as a defendant, and included a loss of consortium claim against the defendants by Bardo's husband. Dr. Liss and Liss P.C. filed a motion to dismiss the complaint on the basis that the Bardos failed to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1. The trial court granted the motion and dismissed the complaint and the Bardos appeal. For the following reasons, we affirm the trial court's dismissal of the complaint.
It is undisputed that, when the Bardos filed their complaint against Dr. Liss and Liss P.C., they failed to file the expert affidavit required by OCGA § 9-11-9.1 in actions seeking damages for professional negligence. Contemporaneously with their initial responsive pleading, Dr. Liss and Liss P.C. filed a motion to dismiss the complaint on the basis that the Bardos failed to file the required affidavit with the complaint. The brief in support of the motion noted that the complaint characterized the alleged negligence as both professional and ordinary negligence and sought dismissal of the entire complaint on the basis that the complaint stated a claim for professional negligence; that the required expert affidavit was not filed with the complaint; and that the failure to file the affidavit cannot be cured by amendment. In response, the Bardos argued only that they had the required expert affidavit in their possession when the original complaint was filed; that they mistakenly failed to file it with the original complaint; and that they cured the failure by filing the required expert affidavit with an amendment to the complaint. The trial court entered an order granting the motion which reads in its entirety: "Defendants's Motion to Dismiss is hereby Granted."
1. The Bardos contend their complaint stated claims based on ordinary negligence and that the trial court erred by dismissing the ordinary negligence claims.
The Bardos' complaint alleged that Ms. Bardo, who was 37 weeks pregnant with a history of epilepsy, fell and injured her ankle while she attempted to step down from an examination table after being examined by Dr. Liss. The complaint alleged that, given these conditions, Dr. Liss's failure to provide assistance to Ms. Bardo as she attempted to step down from the examination table was both professional negligence and ordinary negligence. The trial court dismissed the entire complaint based on the contention in the motion to dismiss that the complaint stated a claim for professional negligence that was not accompanied by the expert affidavit required by OCGA § 9-11-9.1. Because the complaint characterized the same alleged negligence as both professional and ordinary negligence, the court necessarily found that the complaint stated claims based on professional negligence rather than ordinary negligence when it granted the motion and dismissed the entire complaint.
Although complaints against professionals may state claims based on ordinary as well as professional negligence, the complaint's characterization of claims as stating professional or ordinary negligence does not control. Shirley v. Hosp. Auth. of Valdosta/Lowndes County, 263 Ga.App. 408, 409-410, 587 S.E.2d 873 (2003). Where the professional's alleged negligence requires the exercise of professional skill and judgment to comply with a standard of conduct within the professional's area of expertise, the action states professional negligence. Holloway v. Northside Hosp., 230 Ga.App. 371, 371-372, 496 S.E.2d 510 (1998). But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence. MCG Health v. Casey, 269 Ga.App. 125, 128, 603 S.E.2d 438 (2004). Whether a complaint alleges ordinary or professional negligence is a question of law for the court. Crisp Regional Nursing & Rehabilitation Center v. Johnson, 258 Ga.App. 540, 542, 574 S.E.2d 650 (2002).
Applying these standards, we find no error in the trial court's conclusion that the complaint stated claims based on professional negligence rather than ordinary negligence. We have found that similar allegations of medical negligence constituted professional rather than ordinary negligence because the degree of physical assistance needed by a patient to prevent a fall in light of the patient's *104 medical condition required the exercise of expert medical judgment. Sparks v. Southwest Community Hosp., etc., 195 Ga.App. 858, 395 S.E.2d 68 (1990); Holloway, 230 Ga.App. at 372, 496 S.E.2d 510; Gen. Hosp. of Humana v. Bentley, 184 Ga.App. 489, 490-491, 361 S.E.2d 718 (1987).
2. The Bardos concede that, when they filed the complaint alleging professional negligence against Dr. Liss and Liss P.C., they failed to file the expert affidavit required by OCGA § 9-11-9.1 with the original complaint. When a complaint is filed for damages alleging professional negligence against a licensed medical doctor, OCGA § 9-11-9.1 requires that, contemporaneously with the complaint, an expert affidavit be filed setting forth at least one negligent act or omission claimed to exist and the factual basis for the claims. OCGA § 9-11-9.1(a), (f).[1] Moreover, the Bardos no longer contend, as they did in the trial court, that they cured this failure by filing the expert affidavit with an amended complaint. Where a party fails to file the required affidavit with the original complaint, the provisions of OCGA § 9-11-9.1 do not permit the party to add the affidavit by amendment. Fales v. Jacobs, 263 Ga.App. 461, 588 S.E.2d 294 (2003); Fisher v. Coffee Regional Medical Center, 268 Ga.App. 657, 658-659, 602 S.E.2d 135 (2004).
It follows that, to the extent the Bardos' complaint alleged professional negligence against Dr. Liss, a licensed medical doctor, an expert affidavit was required to be filed with that portion of the complaint. OCGA § 9-11-9.1(a), (f). As to the complaint's allegations of professional negligence against Liss P.C., the professional corporation for which Dr. Liss worked, we do not address whether OCGA § 9-11-9.1 required an expert affidavit with that portion of the complaint because that issue was not raised or ruled upon in the trial court and was not raised on appeal. Lowery v. Atlanta Heart Assoc., 266 Ga.App. 402, 404-405, 597 S.E.2d 494 (2004); Minnix v. Dept. of Transp., 272 Ga. 566, 533 S.E.2d 75 (2000). The record shows that the parties simply assumed that the affidavit requirements of OCGA § 9-11-9.1 applied to allegations of professional negligence against Liss P.C., and the trial court's order dismissing the professional negligence claims in the complaint apparently assumed the same. Accordingly, for purposes of addressing the issues presented in this appeal, we assume without deciding that the Bardos were required to file an expert affidavit pursuant to OCGA § 9-11-9.1 with the portion of their complaint alleging professional negligence against Liss P.C. Lowery, 266 Ga.App. at 404, 597 S.E.2d 494.
Having failed to contemporaneously file the required OCGA § 9-11-9.1 expert affidavit with the original complaint, the Bardos do not contend that the trial court erred by dismissing their professional negligence claims. Rather, they contend the trial court should have dismissed their professional negligence claims without prejudice rather than with prejudice. Although the trial court's order granting the motion to dismiss does not specifically say so, the dismissal of the professional negligence claims against Dr. Liss and Liss P.C. for failure to file the OCGA § 9-11-9.1 affidavit with the complaint was with prejudice.
If the required [OCGA § 9-11-9.1] affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice.
(Citations omitted.) Jordan, Jones & Goulding v. Balfour Beatty Const., 246 Ga.App. 93, 539 S.E.2d 828 (2000); Knutsen v. Atlanta Women's Specialists, etc., 264 Ga.App. 87, 89, 589 S.E.2d 588 (2003). Nevertheless, the Bardos contend that, because they had the required affidavit in their possession when they filed the original complaint and they mistakenly failed to file it with the complaint, we should remand this case and order the trial court to dismiss their professional negligence claims without prejudice to enable *105 them to invoke the provisions of OCGA § 9-11-9.1(e) allowing renewal of claims under OCGA § 9-2-61. Subsection (e) of OCGA § 9-11-9.1 provides that:
If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.
If the Bardos had voluntarily dismissed their complaint before the trial court granted the motion to dismiss, they could have avoided the trial court's decision on the merits of their complaint and sought to invoke the provisions of OCGA § 9-11-9.1(e) providing for renewal under OCGA § 9-2-61. Rector v. O'Day, 268 Ga.App. 864, 603 S.E.2d 337 (2004). However, the Bardos did not dismiss the complaint when they had the opportunity. When the trial court granted the motion to dismiss the complaint, this constituted a dismissal on the merits with prejudice and rendered the renewal provisions of OCGA § 9-2-61 unavailable. "The privilege of dismissal and renewal [under OCGA § 9-2-61] does not apply to cases decided on their merits. . . ." (Punctuation omitted.) Hobbs v. Arthur, 264 Ga. 359, 360, 444 S.E.2d 322 (1994); Black v. Knight, 231 Ga.App. 820, 499 S.E.2d 69 (1998); Swartzel v. Garner, 193 Ga.App. 267, 268, 387 S.E.2d 359 (1989) (OCGA § 9-2-61 applies to involuntary dismissals as well as voluntary dismissals where the merits of the case are not adjudicated). Accordingly, the Bardos are not entitled to the relief they request.
Judgment affirmed.
RUFFIN, C.J., and MIKELL, J., concur.
PHIPPS, J., disqualified.
NOTES
[1] The exception in OCGA § 9-11-9.1(b) to the requirement of a contemporaneously filed expert affidavit does not apply in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750678/ | 952 So. 2d 1195 (2007)
HEIDEMANN
v.
HEIDEMANN
No. 1D03-5019.
District Court of Appeal of Florida, First District.
March 21, 2007.
Decision wihtout published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1865333/ | 49 B.R. 269 (1985)
In the Matter of Kenneth Dwain IRELAND, and Mary Etta Ireland, Debtors.
The AMERICAN BANK OF SPICKARD-TRENTON, Plaintiff,
v.
Kenneth Dwain IRELAND, and Mary Etta Ireland, Defendants.
Bankruptcy No. 84-02410-SJ, Adv. No. 84-0523-SJ.
United States Bankruptcy Court, W.D. Missouri, St. Joseph Division.
May 14, 1985.
James T. Holcomb, Trenton, Mo., for plaintiff.
Hugh A. Miner, Hugh A. Miner, P.C., St. Joseph, Mo., for defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECREE AND JUDGMENT DENYING COMPLAINT TO DENY DISCHARGE
DENNIS J. STEWART, Bankruptcy Judge.
This is an action in which the plaintiff objects to the discharge in bankruptcy of *270 the debtors for their alleged failure to pay the plaintiffs the proceeds of sale of certain of the plaintiff's collateral. The issues joined by the pleadings came on before the court for hearing on March 12, 1985, in St. Joseph, Missouri, whereupon the plaintiff appeared by counsel James T. Holcomb, Esquire, and the defendants appeared personally and by counsel, Hugh A. Miner, Esquire. The evidence then adduced warrants the following findings of fact.
The debtors requested a loan of $4,500 from the plaintiff in July 1983. In connection with their application, the debtors represented that they owned certain chattels, including 58 cows, 52 calves and 2 Simmental bulls. Thereafter, sometime in October 1983, Ray Dockery, vice president of the plaintiff bank, went to the debtors' farm to check on the presence of this collateral. Because the collateral was then represented by the debtors to be in three or four different places, he was then unable to ascertain the presence of all the collateral. He was able to count only those which were on Chuck Patterson's land27 cows, 2 calves and 1 bull. A second attempt to find the cattle on the following evening met with even less success in terms of fewer cattle counted. The debtors were then, according to Mr. Dockery's testimony, unable to explain the absence of the remaining cattle.
It was then decided between the bank and the debtors that a liquidation should be carried out. In connection therewith, on December 2, 1983, the debtors submitted to the bank a second financial statement in which they admitted that they had only 47 cows, 47 calves, and 2 Simmental bulls. Mr. Dockery saw at least some of these cattle and reported that they seemed very normal and healthy. In the liquidation sale some 83 cattle were sold and a check for their sale was given to the bank by the debtors. According to Mr. Dockery, Mr. Ireland then reported that the few remaining cattle were still in his possession.
There were thereafter no further conversations as to when other cattle would be sold. In September of 1984, after the debtors had filed the within bankruptcy case, the debtor Kenneth Dwain Ireland stated that two or three of the remaining cattle had died, and that two or three were sold and the proceeds of sale were "put back in the operation." There was apparently a horse with respect to which no testimony was given in the course of the meeting of creditors.
Under cross-examination, Mr. Dockery admitted that frequently cattle are sold to pay bills, but stated that "we expect to be paid and advance the money back for feed bills." The sale of the cattle and other chattels subject to the bank's security interests left a balance due of some $14,580.90 due and owing to the bank.
For the most part, the testimony of the debtor Kenneth Dwain Ireland was in congruence with that of Mr. Dockery. He denied, however, that any cattle were sold until January 7, 1984, when the agreed-upon "liquidation sale" was held and the proceeds turned over to the bank. He admitted that some cattle were still then left in his possession. He stated that he sold two of them which were afflicted with foot disease and received $400-$450 for them. Additionally, he sold two cows and three calves and received "around $400 apiece" for the two cows and $250 apiece for the three calves. He put the proceeds of these sales "back into the [farming] operation." He admitted that he had entered into no separate understanding with the bank by which this was permitted. Later, in July or August of 1984, he lost the remaining two or three cows by death. He denied selling any other cattle or converting any to his own use. As to the initial difference between the number of cattle reported in the July 1983 financial statement and that of December 1983 was that he had, in the intervening six months, lost some of the cattle by death and also sold some and devoted the proceeds to the farming operation.
Conclusions of Law
It is essential to denying discharge or granting a decree of nondischargeability on the grounds of conversion *271 of collateral that the plaintiff demonstrate the existence of an actual wilful and malicious intention.[1] In this district, the decisions have gone to the extreme of requiring of proof of such an intention by means of a rigid subjective standard, under which the debtor's conversions are excused if he has a good faith, albeit unreasonable, belief that he has a right to deal with the property as his own.[2] If the debtor could have, *272 by seizing upon the slightest ambiguity in the security instrument, by almost any form of reasoning, justified converting the collateral to his own use, the decisional precedents in this district excuse it.[3] In this case, the course of conduct between the parties, according to the testimony of Mr. Dockery himself, was that the proceeds of the sale could be advanced for feed, even though they sould ordinarily be reported to the bank.[4] From this, the debtor might have formed the good faith belief, which he professes to have, that he could simply sell some of the cattle and reinvest *273 the proceeds in the operation. It is therefore
ORDERED, ADJUDGED AND DECREED that the within complaint be, and it is hereby, denied.
NOTES
[1] See section 727(a)(2) of the Bankruptcy Code, providing that discharge may be denied if "the debtor, with intent to hinder, delay, or defraud a creditor . . . has transferred, removed, destroyed, mutilated, or concealed . . . property of the debtor, within one year before the date of the filing of the petition." Cf. section 523(a)(6) of the Bankruptcy Code to the effect that "(a) discharge under section 727 . . . of this title does not discharge an individual debtor from any debt . . . for willful and malicious injury by the debtor to another entity or to the property of another entity." "(I)t must be considered that the denial of a discharge in bankruptcy is a harsh and drastic penalty. Consequently, our district court has consistently held that, when intention is required to be shown as a prerequisite to the denial of a discharge or a decree of nondischargeability, it must be a subjective, actual intent. See, e.g., Matter of Bellmer, Civil Action No. 79-6042-CV-SJ (W.D.Mo.1980) (`In reviewing the cases on this issue, the Court is convinced that the "willful and malicious" requirement of the statute is meant to impose the necessity of finding a subjective, conscious intent whether through recklessness, malice, or dishonesty, to convert the property.'). This rule has been held particularly to apply in cases in which the debtor has disposed of property in a good faith, albeit mistaken, belief that he had a right to do so. `A good faith belief, even though unreasonable, precludes a wilful and malicious intent.' Matter of Roberts, 8 B.R. 291, 293 (W.D. Mo.1981)." Matter of Alan Louis Roberts, Adversary Action No. 82-0785-3 (Bkrtcy.W.D.Mo. Nov. 9, 1982). "(I)t must be observed that, under the applicable authorities, the `intent to hinder, delay, or defraud' which section 727(a)(2), Title 11, United States Code, makes prerequisite to the denial of discharge is an actual intent which is equally subjective as that defined by the decisions rendered under section 523(a)(6). . . . `In order to justify a refusal of discharge . . ., it must be shown that the acts complained of were done with an intent to hinder, delay, or defraud his creditors. This intent, moreover, must be an actual fraudulent intent as distinguished from constructive intent.' 1A Collier on Bankruptcy para. 14.47(1), pp. 1410, 1411 (1978) (Emphasis added). Cf. In re Adlman, 541 F.2d 999 (2d Cir.1976)." Matter of Alan Louis Roberts, Adversary Action No. 82-0785-3 (Bkrtcy.W.D.Mo. Dec. 13, 1982).
[2] See note 1, supra. The Bellmer case there cited offers a good study in how difficult it can be to gain a denial of discharge or a dischargeability decree under the rules fixed by the district court. In that case, the defendant admittedly sold accounts receivable which were subject to the plain letter of a security instrument to a third party. He stated in the trial of the action that he believed that the accounts receivable were not subject to the security interest because they were acquired after the date of the security interest. The security agreement itself contained a provision "(t)hat the security interest herein granted shall extend to all future advances made by the secured party and to any after acquired property of the same, type, kind or nature purchased by the debtor, whether as replacement or otherwise." The bankruptcy court accordingly held the conversion to be nondischargeable, stating that the debtor could not defeat the rights "of others by simply closing his eyes to those rights. When the defendant knew of the existence of a contract respecting some accounts receivable, he was surely put on inquiry to acquaint himself with its terms. Refusal to read the pertinent provisions of the contract under these circumstances constitutes a form of intentional conduct in itself. And this principle is recognized in the many decisions which equate reckless disregard of another's rights . . . with intentional disregard." On review, the district court descried an ambiguity in the promissory note's stating that it was "secured by the deposit herewith of accounts receivable," thus seeming to ignore the fact that such a statement did not rule out the existence of other security. It was further noted that the bank officer had explained to the debtor that the security included "the accounts receivable of the previous loan plus the ones that were given to us afresh on this new loan." This could have created no ambiguity, when the "ones . . . given . . . afresh" included, as a matter of law, those which were after-acquired. The defendant's knowledge of this was evidenced by his bringing the acquiring of such later accounts receivable to the attention of the creditor. The bankruptcy court, therefore, as noted above, accordingly found that the debtor, in disposing of the collateral on his own account (particularly when the particular type of collateral involved was not usually sold) intentionally violated a known right of the secured creditor. This seemed to adhere to the correct standard of law which was then, under the former Bankruptcy Act, being employed. "An injury to person or property may be a malicious injury within this provision if it was wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill will. . . . Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury. . . . Thus, the conversion of another's property without his knowledge or consent, done intentionally and without justification and excuse, to the other's injury, is a willful and malicious injury within the meaning of the exception." 1A Collier on Bankruptcy para. 17.17, pp. 1650.4, 1652, 1653, 1654 (14th ed. 1976). Under this well-established old rubric, it was generally held that "(i)t is a willful and malicious injury to property within the meaning of this section for a chattel mortgagee in possession of the property and the payee of notes which had been put up as collateral security, to sell the mortgaged property and appropriate the proceeds thereof without the knowledge of the person holding the collateral." Id., p. 1655, n. 9. It would appear that the rule could not have been otherwise if the contents of the security instrument were anything close to unambiguous. In Bellmer, however, the district court seized upon whatever could be teased into ambiguity and found that the "willful and malicious" standard was not met. It further seized upon certain statements of the law made in cases in which the secured creditor had consented to or acquiesced in conversion of chattels in order to contradict the rule asseverated above. Thus, In re McGinnis, 586 F.2d 162, 165 (10th Cir.1978), is quoted for the principle that "(w)e have already observed that a sale of collateral without the creditor's consent can constitute an `innocent' or `technical' conversion not cognizable under the Bankruptcy Act's willful and malicious conversion provision." But the only exception to the rule which is previously mentioned in this decision is that of a "conversion accomplished with the knowing acquiescence of the creditor" where "the creditor `acquired knowledge of the transaction at a time when it could have asserted its security interest in the property and failed to take reasonable steps to protect its security . . .'" These facts did not fit the Bellmer case. The other decisions specifically relied upon in the Bellmer decision similarly developed the theme that conversion with consent or acquiescence could not be "willful and malicious" within the meaning of the non-dischargeability statute, Bennett v. W.T. Grant Co., 481 F.2d 664 (4th Cir.1973), and that a specific finding of "willful and malicious" must be made by the trial court. Robertson v. Interstate Securities Company, 435 F.2d 784 (8th Cir. 1971). It appears to be obvious from this decision of the district court that even the slightest reason for doubt as to the debtor's duty directly to pay over the proceeds of secured collateral to the secured creditor, caused either by the agreement itself or the conduct of the parties under it, will result in a decree of nondischargeability being set aside. In the action at bar, the plaintiff's own witness admitted that some of the proceeds are expected to be reinvested in the operation. Although he further stated that the bank expected that the parties observe the formality of their being first paid to the bank and then released by the bank, the net result is the same. And the bankruptcy courts, it is constantly held, are courts of equity, which must "look . . . through form to substance, (and) treat the transaction according to its real nature." Katz v. First Nat. Bank of Glen Head, 568 F.2d 964, 970 (2d Cir.1977).
[3] See note 2, supra. A decision which is perhaps more bewildering than the Bellmer decision is In re Roberts, 8 B.R. 291 (W.D.Mo.1981), in which the debtor falsely represented to the lending bank that he was purchasing the automobile on his own account, when he really intended to purchase it on behalf of his sister. The bank approved and extended the loan and the sister promptly absconded with the automobile. There was evidence that the automobile dealer knew of this arrangement, but none that the bank did. The defendant professed to believe that he was only a co-signer, a contention not supported by the documents signed by him. The district court, nevertheless, held the debt to be dischargeable, stating that "(a) good faith belief, even though unreasonable, precludes a wilful and malicious intent." 8 B.R. at 293 This court has declared its allegiance to this standard in Matter of Lewis, 17 B.R. 46, 48, 49 (Bkrtcy.W.D.Ark.1981), and other cases. Other courts have dissented from the view. See, e.g., United Bank of Southgate v. Nelson, 35 B.R. 766, 772, 776, 777 (N.D.Ill.1983); In re DeRosa, 20 B.R. 307, 313 (Bkrtcy.S.D.N.Y.1982) ("This court is persuaded by . . . the looser . . . common-law definition of implied or constructive malice, rather than the rigid standard of actual, subjective, conscious intent to harm as enunciated in Lewis.")
[4] Cf. note 2, supra. By reason of the findings of fact and conclusions of law herein made, the other grounds for denial of discharge, as based on the evidence adduced in the hearing of this action, and based on the asserted ground that the debtors concealed or removed property or failed to explain its disappearance, must also be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3066614/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas J. Pugliese, :
Appellant :
:
v. : No. 2297 C.D. 2014
: Submitted: September 17, 2015
Zoning Hearing Board of :
Bethlehem Township :
:
v. :
:
Hariton Parashos :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 15, 2015
In this zoning appeal, Nicholas J. Pugliese (Applicant), a real estate
developer, asks whether the Court of Common Pleas of Northampton County (trial
court) erred in affirming a decision of the Zoning Hearing Board of Bethlehem
Township (ZHB) that denied his request for a dimensional variance from the
minimum lot width requirement in the Bethlehem Township Zoning Ordinance
(zoning ordinance). Applicant argues the ZHB erred in denying his dimensional
variance request where he satisfied all the applicable requirements. Alternatively,
he asserts the ZHB erred in denying his request for a de minimis variance. Upon
review, we affirm.
I. Background
Applicant owns a 42,000-square foot undeveloped parcel (property)
that lies in Bethlehem Township’s (Township) rural residential (RR) zoning
district. The property is located on Country Club Road near the intersection of
Knollcroft Avenue. Applicant obtained title to the property in 1998. The property
is 240 feet in width and 175 feet in depth.
Applicant seeks to “re-subdivide” the property to create two
contiguous substandard lots that are each 120 feet in width and 175 feet in depth.
ZHB Op., 3/26/14, at 1. Applicant proposes to construct a home on each of the
newly created lots. If re-subdivision were permitted, each lot would consist of a
substandard configuration because the zoning ordinance requires a minimum lot
width of 125 feet rather than the proposed 120 foot width.
In January 2014, Applicant filed an application with the ZHB seeking
a variance from the zoning ordinance’s 125-foot minimum lot width requirement to
permit the creation of two lots, each with a width of 120 feet. Applicant indicated
that if he received the requested variance relief, he would seek the necessary
approval to subdivide the property into two lots.
The ZHB held a hearing on Applicant’s request. Applicant testified
on his own behalf and presented the testimony of Eugene Weber, P.E. (Applicant’s
Engineer). Several neighboring objectors appeared in opposition to Applicant’s
request. After the hearing, the ZHB issued a decision in which it made the
following relevant findings.
2
In support of his application, Applicant asserted the grant of a five-
foot width variance for each lot represented a de minimis deviation from the zoning
ordinance’s minimum lot width requirement. As such, the variance would not
substantially or permanently injure the appropriate use of adjacent, conforming
properties. Applicant further testified he would suffer a hardship that he did not
create if the ZHB denied relief. Specifically, the property is adjacent to State
Route 33, which generates significant noise, and it also lies next to a Township
septic system pumping station, which creates odors. Applicant asserted no one
would purchase an expensive residence on such a lot; therefore, from an economic
standpoint, Applicant believed it necessary to construct two less expensive homes
on the property.
Notably, Applicant confirmed that the 42,000 square foot property can
be developed in compliance with all of the requirements of the zoning ordinance.
He could not offer any reason why creation of two substandard lots was necessary
other than for purely economic reasons.
At the ZHB’s request, its solicitor performed a title search for the
property, which revealed the existence of several impediments to re-subdivision.
In particular: (1) a prior subdivision plan states the property may not be further
subdivided without the approval of the property’s prior owners, and no such
approval was presented to the ZHB; (2) Pennsylvania Power and Light maintains
an easement over the property and Applicant’s plan does not reflect the existence
of this easement; and, (3) a 50-foot gas line easement for underground
3
transportation of petroleum products exists in favor of Interstate Energy Company,
which was never released.
For their part, several neighboring objectors maintained that creation
of two substandard lots would decrease the value and use of their properties, and
the construction of inexpensive homes would alter the essential character of the
neighborhood.
Based on the evidence presented, the ZHB determined Applicant did
not explain why he could not construct a single-family home on the property that
complied with the zoning ordinance. In actuality, the ZHB stated, there were no
unique physical conditions or circumstances that precluded compliance with the
zoning ordinance. Thus, the ZHB determined the property could be developed in
conformity with the zoning ordinance, and no variance was necessary to enable
reasonable use of the property because a residence similar to other residences in
the neighborhood could be built on the property without any zoning relief.
The ZHB further determined Applicant himself created any hardship
as he knew of the lot configuration and the property’s location next to a highway
and septic system pumping station. The ZHB also found the grant of a variance
would alter the essential character of the neighborhood, which is comprised of
single-family homes on compliant lots. Additionally, the ZHB determined the
variance sought was not the minimum variance that would afford relief.
4
As to Applicant’s assertion that a de minimis variance was
appropriate, the ZHB stated, among other things, that the 10-foot deviation
Applicant sought, in the form of two separate, five-foot dimensional variances was
significant when compared to those de minimis deviations permitted by
Pennsylvania appellate courts. The ZHB further stated Applicant could build a
single-family home on the property without the need for any zoning relief. Thus,
the ZHB denied Applicant’s request for a dimensional variance from the zoning
ordinance’s lot width requirements, and, in the alternative, Applicant’s request for
a de minimis variance. Applicant appealed to the trial court.
Without taking additional evidence, the trial court affirmed. The trial
court determined Applicant did not establish any of the criteria necessary to obtain
a variance. Specifically, the trial court stated, Applicant’s claim of hardship lacked
merit because there were no unique physical circumstances of the property that
would prevent Applicant from developing it in conformity with the zoning
ordinance. Further, Applicant could not prevail even under the relaxed standard
set forth in Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721
A.2d 43 (Pa. 1998), for the grant of a dimensional variance because mere evidence
that Applicant would obtain a greater profit if the variance were granted was
insufficient to prove hardship.
In addition, the trial court determined substantial evidence supported
the ZHB’s findings that any hardship was self-created, and that the grant of the
variance would alter the essential character of the neighborhood. Finally, the trial
court determined, despite the apparent de minimis nature of the requested variance,
5
the ZHB was not required to grant the requested variance on the ground that the
deviation sought was minor. Rather, such a decision was a matter within the
ZHB’s discretion, and, as a result, the trial court would not substitute its judgment
for the ZHB on this issue.
Applicant appealed to this Court, and the trial court directed him to
file a concise statement of the errors complained of on appeal, which he did. The
trial court then issued a brief opinion pursuant to Pa. R.A.P. 1925(a) in which it
explained that it addressed the issues raised in Applicant’s statement in its prior
opinion, with the exception of one issue. Specifically, the trial court stated, to the
extent Applicant asserted the ZHB improperly relied on a title search for the
property performed by its solicitor, the results of that search had no bearing on the
ZHB’s supported determination that Applicant did not prove it was entitled to
variance relief. This matter is now before us for disposition.1
II. Issues
On appeal,2 Applicant argues the ZHB erred in denying his
dimensional variance request where he satisfied all the requirements necessary to
obtain a dimensional variance. Alternatively, he contends the ZHB erred in
1
Objector Hariton Parashos was precluded from filing a brief or participating in oral
argument. No other neighboring objectors filed briefs. Applicant and the ZHB filed briefs with
this Court.
2
Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).
6
denying his request for a de minimis variance where he seeks only a minor
deviation from the zoning ordinance.
A. Dimensional Variance
1. Contentions
Applicant first argues the ZHB erred in denying his dimensional
variance request. Section 275-34 of the zoning ordinance governs the lot and
setback requirements in the RR district. Section 275-34(C) states, as pertinent:
“Minimum lot width: 125 feet at the minimum front yard setback line ….” Id.;
Reproduced Record (R.R.) at 28. Applicant contends he sought a dimensional
variance to allow the division of the property into two separate plots. He asserts he
sought a five-foot variance from the 125-foot lot frontage requirement for each of
the two proposed, newly created lots.
Applicant maintains the burden of proving hardship is relaxed under
Hertzberg where, as here, an applicant seeks only to deviate from a zoning
ordinance’s dimensional requirements. Under Hertzberg, courts may consider
multiple factors in determining whether an applicant established unnecessary
hardship for a dimensional variance, including: “the economic detriment to the
applicant if the variance was denied, the financial hardship created by any work
necessary to bring the building into strict compliance with the zoning requirements
and the characteristics of the surrounding neighborhood.” Id. at 50. Applicant
maintains that, although a variance applicant must show unnecessary hardship will
result if the variance is denied and the proposed use is not contrary to the public
interest, he need not show the property cannot be used for any other permitted use
7
in order to show unnecessary hardship where only a dimensional variance is
sought.
a. Hardship
Applicant argues that before the ZHB he presented the testimony of
his Engineer in support of the requested variance. Applicant’s Engineer explained
the property abuts the right-of-way of State Route 33 and is surrounded by homes
on half-acre lots. The property is vacant and has remained vacant for an extended
period. A sewer authority pump station abuts the property to the north.
Applicant’s Engineer explained the property has a unique physical
circumstance in that, while the proposed, newly created lot widths are just shy of
that required by the zoning ordinance, the property is exactly 42,000 square feet,
which indicated to him that the intent was to create two lots each with an area of
exactly 21,000 square feet, the minimum lot size required in the RR district.
Applicant’s Engineer further testified it was his understanding that
Applicant purchased the property with the intent of developing two parcels.
Applicant’s Engineer testified that if two lots were placed on the property, the
property could not be developed in strict conformity with the zoning ordinance.
He further explained the hardship was not self-created, and the deviation sought,
five feet for each proposed lot, represents the minimum relief available in order to
build the two homes. Further, although Applicant’s Engineer testified the subject
property could be developed in compliance with the zoning ordinance as it
currently exists, with a single home on a single lot, he noted the relief requested
8
was so de minimis that Applicant would suffer unnecessary hardship if the ZHB
denied the variance.
Applicant argues his testimony explained that the property lies near
State Route 33 and, as a result, noise generated by the highway greatly reduces its
value. The property is also located next to a disposal plant and pumping station,
which is an eyesore and emanates foul odors. Applicant also testified that when he
purchased the property, State Route 33 was not completed, and he was unaware it
could be extended or of the noise it would create. Applicant could not recall if the
pumping station existed when he purchased the property. Applicant further
testified the requested variance would alleviate a financial hardship, explaining
that, with the proximity of the highway and the pumping station, it would be
impossible to sell a more expensive single home; however, selling two less
expensive homes was possible.
Applicant points out that he purchased the property for $50,000, and
he invested approximately $85,000 to $90,000 into it. He explained that, as it
stands, the property is one acre and he could not “get $500,000 or anything for it.”
R.R. at 86.
Applicant contends his testimony and the testimony of his Engineer
establish that he is seeking a dimensional variance, which is a mere five feet for
each proposed lot, or 10 feet of total frontage on Country Club Road. Given that
this request involves a dimensional variance, the relaxed hardship standard applies.
Applicant argues his testimony, coupled with the testimony of his Engineer,
9
reveals the property contains unique physical conditions and the unnecessary
hardship is caused by those conditions.
b. Adverse Community Impact
Applicant next argues, despite the testimony of the neighboring
objectors, the record reveals the requested variance would not alter the essential
character of the neighborhood, nor would it substantially impair the appropriate
use or development of adjacent property or be detrimental to the public welfare.
Applicant asserts that, although one of the objectors testified the value of his
property would decrease if Applicant’s proposal were approved, the objector
presented no evidence to substantiate that claim. Further, while the same objector
explained that it would be a totally different neighborhood if two homes were
placed next to each other on the property, he presented no evidence to support this
claim.
As to the proposed construction, Applicant’s Engineer testified that if
the variance were granted, Applicant would have to proceed before the planning
commission and any construction would be required to meet any and all
requirements, including setback requirements in the zoning district. Applicant’s
Engineer also testified the homes Applicant proposes to build would not alter the
essential character of the neighborhood. The homes would not “stick out,” would
not cause any problems, would meet the setback and other requirements, would be
of good quality and would be a good fit for the neighborhood. R.R. at 59.
Thus, Applicant argues the ZHB erred in finding that the grant of the
variance would be contrary to the public interest or that the essential character of
10
the neighborhood would be altered if the variance was granted. Applicant asserts
the record lacks substantial evidence to support this finding. Rather, all of the
evidence shows the character of the neighborhood would remain unchanged, and
there would be no negative impact on the objectors’ properties or the public
interest.
c. Substantial Evidence
Applicant further maintains the ZHB’s findings are not supported by
substantial evidence. He argues the ZHB’s findings regarding the objectors’
concerns are not supported by evidence, but rather the objectors’ mere opinions
and general assertions as to the impact on the neighborhood that would occur as a
result of the proposed construction. Applicant, on the other hand, presented
evidence as to its proposal, which was sufficient to establish its right to the
requested variance. Applicant further contends a review of the transcript of the
ZHB hearing reveals the ZHB believed it was somehow precluded from granting
the requested variance under any circumstances, despite the fact that Applicant
presented sufficient evidence to justify the grant of a dimensional variance.
2. Analysis
Initially, we note, this Court may not substitute its interpretation of the
evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873
A.2d 807 (Pa. Cmwlth. 2005). It is the function of a ZHB to weigh the evidence
before it. Id. The ZHB is the sole judge of the credibility of witnesses and the
weight afforded their testimony. Id. Assuming the record contains substantial
evidence, we are bound by the ZHB’s findings that result from resolutions of
credibility and conflicting testimony. Id.
11
A ZHB may grant a variance when the following criteria are met:
(1) an unnecessary hardship will result if the variance is
denied, due to the unique physical circumstances or
conditions of the property; (2) because of such physical
circumstances or conditions the property cannot be
developed in strict conformity with the provisions of the
zoning ordinance and a variance is necessary to enable
the reasonable use of the property; (3) the hardship is not
self-inflicted; (4) granting the variance will not alter the
essential character of the neighborhood nor be
detrimental to the public welfare; and (5) the variance
sought is the minimum variance that will afford relief.
Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520 (Pa.
Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014) (citation omitted); see also
Section 275-11(F)(4)(a)(1)-(5) of the zoning ordinance.
A dimensional variance involves a request to adjust zoning
regulations to use the property in a manner consistent with regulations, whereas a
use variance involves a request to use property in a manner that is wholly outside
zoning regulations. Hertzberg. The same criteria apply to use and dimensional
variances. Id. However, in Hertzberg, our Supreme Court set forth a more relaxed
standard for establishing unnecessary hardship for a dimensional variance, as
opposed to a use variance.
Under Hertzberg, courts may consider multiple factors in determining
whether an applicant established unnecessary hardship for a dimensional variance.
These factors include: “the economic detriment to the applicant if the variance was
denied, the financial hardship created by any work necessary to bring the building
12
into strict compliance with the zoning requirements and the characteristics of the
surrounding neighborhood.” Id. at 50 (emphasis added).
Although Hertzberg eased the requirements, it did not remove them.
Tri-County. An applicant must still present evidence as to each of the conditions
listed in the zoning ordinance, including unnecessary hardship. Id. Where no
hardship is shown, or where the asserted hardship amounts to a landowner’s desire
to increase profitability or maximize development potential, the unnecessary
hardship criterion required to obtain a variance is not satisfied even under the
relaxed standard set forth in Hertzberg. See Soc’y Hill Civic Ass’n v. Phila.
Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012).
Nevertheless, “Hertzberg articulated the principle that unreasonable
economic burden may be considered in determining the presence of unnecessary
hardship.” Soc’y Hill Civic Ass’n, 42 A.3d at 1188 (quoting Yeager v. Zoning
Hearing Bd. of City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001)).
Further, in Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014), the Supreme
Court stated: “This Court has repeatedly made clear that in establishing hardship,
an applicant for a variance is not required to show that the property at issue is
valueless without the variance or that the property cannot be used for any permitted
purpose.” Id. at 330 (emphasis in original).
Here, the ZHB determined Applicant did not prove the requisite
unnecessary hardship. In so doing, the ZHB determined Applicant “failed to
submit evidence reflecting why construction of a single-family private residence
13
may not take place in compliance with the zoning ordinance. In actuality, there are
no unique physical circumstances or conditions that preclude compliance with the
zoning ordinance.” ZHB Op. at 6. The ZHB further determined the property can
be developed in strict conformity with the zoning ordinance. Id. at 7. “No
variance is necessary to enable the reasonable use of the property since a residence
similar to the other residences in the neighborhood could be built on the
[property].” Id. We discern no error in the ZHB’s determination that Applicant
did not prove the requisite unnecessary hardship even under the relaxed standard
set forth in Hertzberg.
Applicant testified denial of the variance would result in hardship
because the property’s proximity to the pump station and State Route 33 make it
less valuable as a single lot rather than two lots. R.R. at 86-92. Applicant did not
testify that there are unique circumstances or conditions of the property that
preclude or hinder development of the property in conformity with the zoning
ordinance. In fact, both Applicant and his Engineer admitted the property could be
developed in compliance with the zoning ordinance by constructing one single-
family home. R.R. at 63, 91. Essentially, Applicant testified that, because of the
property’s proximity to State Route 33 and the pump station, he would realize a
greater profit if he could develop the property with two homes rather than one.
R.R. at 89-91. Thus, as the ZHB determined, the need for the variance stems from
Applicant’s desire to realize a greater profit by constructing two homes on the
property rather than one home. This is insufficient to constitute unnecessary
hardship.
14
This Court consistently rejects requests for dimensional variances
where proof of hardship is lacking. Where no hardship is shown, or where the
asserted hardship amounts to a landowner’s mere desire to increase profitability,
the unnecessary hardship criterion required to obtain a variance is not satisfied
even under the relaxed standard set forth by the Supreme Court in Hertzberg. See,
e.g., Soc’y Hill Civic Ass’n (rejecting applicants’ request for dimensional variance
from zoning code’s loading space requirement where need for variance was
triggered by applicants’ desire to expand use of property to maximize
profitability); Singer v. Zoning Bd. of Adjustment of City of Phila., 29 A.3d 144
(Pa. Cmwlth. 2011) (rejecting applicant’s request for dimensional variances from
zoning code’s parking, floor area ratio and loading dock requirements where
asserted hardship amounted to applicant’s desire to maximize development
potential of property); Lamar Advantage GP Co. v. Zoning Hearing Bd. of
Adjustment of City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010) (rejecting
applicant’s request for dimensional variance for proposed sign where only asserted
hardship involved alleged benefit to community and increase in income); Twp. of
Northampton v. Zoning Hearing Bd. of Northampton Twp., 969 A.2d 24 (Pa.
Cmwlth. 2009) (rejecting applicant’s request for variance from ordinance’s off-
street parking requirements where no evidence of hardship presented even under
relaxed Hertzberg standard and evidence revealed applicant could use property in a
manner consistent with ordinance requirements); In re Boyer, 960 A.2d 179 (Pa.
Cmwlth. 2008) (rejecting applicant’s requests for dimensional variances from
ordinance’s steep slope and setback requirements in order to construct in-ground
pool where no evidence of hardship presented even under relaxed Hertzberg
standard); Se. Chester County Refuse Auth. v. Zoning Hearing Bd. of London
15
Grove Twp., 898 A.2d 680 (Pa. Cmwlth. 2006). (rejecting request for dimensional
variance where evidence indicated applicant could continue to operate at a profit
without variance relief; no hardship shown); One Meridian Partners, LLP v.
Zoning Board of Adjustment of City of Phila., 867 A.2d 706 (Pa. Cmwlth. 2005)
(rejecting request for dimensional variance from floor area ratio and height
requirements where asserted hardship was essentially financial in nature); Yeager
v. Zoning Hearing Board of City of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001)
(rejecting applicant’s request for dimensional variances from ordinance’s setback
and clear sight triangle requirements where only hardship amounted to applicant’s
desire to construct a building for its new car dealership that complied with
specifications required by vehicle manufacturer).
Because we discern no error in the ZHB’s determination that
Applicant did not prove the requisite unnecessary hardship to justify the grant of
the requested dimensional variance, we need not address at length whether
Applicant met its burden of proving it satisfied the remaining variance criteria. It
is sufficient for current purposes to state that no error is apparent in the ZHB’s
determinations that any alleged hardship was self-created,3 and that the variance
3
The ZHB determined any alleged hardship was self-created because Applicant was
aware of the lot configuration and its location next to the planned extension of State Route 33
and the pump station when he purchased the property in 1998. This analysis is faulty. Applicant
did not create the current lot configuration, and he did not construct State Route 33 or the
pumping station. Stated otherwise, mere knowledge of these pre-existing conditions does not
create a new hardship for the property. However, Applicant will need the variances because he
intends to create two new undersized lots where none currently exist. To that extent, he will be
creating the undersized lot hardship he seeks to remedy. Thus, while we disagree with the ZHB’s
rationale, we discern no error in the ultimate determination it reached on the self-created
hardship issue.
16
sought is not the minimum that would afford relief.4 Similarly, we do not discern
reversible error in the ZHB’s determination that the grant of a variance would alter
the essential character of the neighborhood.5
B. De Minimis Doctrine
1. Contentions
Alternatively, Applicant contends the ZHB erred in failing to grant the
requested variance under the de minimis doctrine. He asserts the de minimis
doctrine applies where an applicant seeks only a minor deviation from a zoning
ordinance and rigid compliance with the ordinance is not necessary to preserve the
public interests the ordinance seeks to protect.
Here, Applicant argues the record reveals he satisfied these two
factors. Applicant maintains that, as his Engineer explained, the variance sought
4
The ZHB determined the variance sought is not the minimum variance that would
afford relief given that Applicant could construct a home on the property without the need for
any zoning relief. In light of Applicant’s testimony that the property could be developed for one
single-family home without the need for zoning relief, no error is apparent in the ZHB’s
determination in this regard.
5
Although Applicant takes issue with this ZHB determination, which he asserts is
premised on the mere opinions of the objectors, Applicant, not the objectors, bore the burden of
proving that the grant of the variance would not alter the essential character of the neighborhood.
Applicant did not persuade the ZHB on this point. To that end, although Applicant maintains his
Engineer testified that the grant of the requested variance would create no adverse community
impact, the ZHB did not credit that testimony. Further, our review of the record reveals the
objectors testified that, if the ZHB granted the variance, the essential character of the
neighborhood would be altered because Applicant would construct two homes on smaller lots,
while other homes in the neighborhood are situated on larger lots. R.R. at 116, 134, 139. Thus,
the grant of the variance would increase density and would have a negative impact on property
values. Id. In addition to their testimony, the objectors submitted documentary evidence in the
form of photographs and tax maps in order to illustrate the character of the area surrounding the
property. Certified Record, Objector Exs. 1-9. Because the record supports the ZHB’s
determination on this point, we reject Applicant’s argument.
17
was for lot width. The zoning ordinance requires a lot width of 125 feet. The total
frontage of the property is 240 feet, and Applicant seeks to create two lots, each
with a width of 120 feet. Thus, Applicant seeks a variance to deviate from the
required lot width by five feet for each lot. This five-foot deviation is a mere 4%
deviation from the zoning ordinance requirement, which is clearly minor.
Applicant further contends the record reveals rigid compliance with the zoning
ordinance is unnecessary to preserve the public interests the zoning ordinance
seeks to protect. Thus, although he satisfied the requirements to obtain a
dimensional variance, in the alternative, the ZHB should have granted the variance
as de minimis.
2. Analysis
“The de minimis doctrine is an extremely narrow exception to the
heavy burden of proof which a party seeking a variance must normally bear.”
Swemley v. Zoning Hearing Bd. of Windsor Twp., 698 A.2d 160, 162 (Pa.
Cmwlth. 1997) (quoting King v. Zoning Hearing Bd. of Borough of Nazareth, 463
A.2d 505, 505 (Pa. Cmwlth. 1983)). “The de minimis zoning doctrine authorizes a
variance in the absence of a showing of the unnecessary hardship traditionally
required to support such relief where the violation is insignificant and the public
interest is protected by alternate means.” Nettleton v. Zoning Board of Adjustment
of City of Pittsburgh, 828 A.2d 1033, 1038 (Pa. 2003). Thus, “it is not necessary
to apply the normal standards for a variance … where the variance requested is de
minimis.” Lench v. Zoning Bd. of Adjustment of City of Pittsburgh, 13 A.3d 576,
581 (Pa. Cmwlth. 2011) (quoting Nettleton, 828 A.2d at 1038).
18
This Court consistently holds that “[t]he grant of a de minimis
variance is a matter of discretion with the local zoning board.” Id. at 581-82
(citing Segal v. Zoning Hearing Bd. of Buckingham Twp., 771 A.2d 90 (Pa.
Cmwlth. 2001)) (emphasis added). Thus, “there is no general right to a de minimis
variance in Pennsylvania ….” 200 W. Montgomery Ave. Ardmore, LLC v. Zoning
Hearing Bd. of L. Merion Twp., 985 A.2d 996, 1001 (Pa. Cmwlth. 2009) (citation
omitted). As with a traditional variance, it is essential that the grant of a de
minimis variance be decided on a case-by-case basis. Swemley.
Here, the ZHB did not deem Applicant’s variance request
insignificant because Applicant seeks a 10-foot deviation from the minimum lot
width requirement. The ZHB deemed Applicant’s request “significant” in
comparison to de minimis variances previously approved by Pennsylvania courts.
ZHB Op. at 7. The ZHB also declined to grant the requested variances as de
minimis on the ground that Applicant could construct a home similar to those that
presently exist in the neighborhood without the need for any zoning relief. Id.
Although the ZHB incorrectly stated that the grant of a de minimis variance
requires proof of unnecessary hardship, we discern no abuse of discretion in the
ZHB’s ultimate denial of Applicant’s de minimis variance request.
Specifically, Applicant did not prove the requested deviation was
insignificant. Rather, Applicant seeks two variances from the zoning ordinance’s
minimum lot width requirement in order to enable subdivision of the property so
that he can construct two homes. As such, grant of the requested variance would
effectively double the density of the use and create two substandard lots that lack
19
the required lot width, despite the fact that Applicant can make reasonable use of
the property by building a single-family home without the need for any zoning
relief. Under these circumstances, no abuse of discretion is apparent in the ZHB’s
determination that Applicant did not prove the requested deviation was
insignificant.
In addition, in order for the ZHB to grant a de minimis variance it
must be shown that “the public interest is protected by alternate means.” Nettleton,
828 A.2d at 1038. Thus, to obtain a de minimis variance, an applicant must prove
that “strict compliance is not necessary to protect the public interest.” Id. at n.6.
Here, the ZHB found the grant of the requested variance would be contrary to the
public interest because it would alter the essential character of the neighborhood,
which is comprised of single-family homes on compliant lots. ZHB Op. at 7. The
ZHB also found that neighboring objectors raised concerns that the creation of two
substandard lots would decrease the value and use of their residential properties,
and the construction of inexpensive residences would alter the essential character
of the neighborhood. ZHB Op., Finding of Fact No. 9. As a result, Applicant did
not prove strict compliance with the zoning ordinance’s minimum lot width
requirement for each of its two proposed non-compliant lots was not necessary to
protect the public interest.
Moreover, as the trial court recognized, this Court repeatedly holds
that the grant of a de minimis variance is a matter of discretion for the ZHB.
McCarry v. Haverford Twp. Zoning Hearing Bd., 113 A.3d 381 (Pa. Cmwlth.
2015); Hawk v. City of Pittsburgh Zoning Bd. of Adjustment, 38 A.3d 1061 (Pa.
20
Cmwlth. 2012); Lench; 200 W. Montgomery Ave.; Segal; Swemley; Alpine, Inc.
v. Abington Twp. Zoning Hearing Bd., 654 A.2d 186 (Pa. Cmwlth. 1995). Thus,
we decline to substitute our judgment for that of the ZHB on the issue of whether
Applicant proved entitlement to the de minimis variances sought here.
Based on the foregoing, we affirm.6
ROBERT SIMPSON, Judge
6
As a final issue, Applicant argues the ZHB erred when it relied on evidence not
properly before it. To that end, he asserts, at the ZHB hearing, evidence was offered regarding a
title search performed by the ZHB’s Solicitor. While the solicitor discussed the title search, it
was never formally admitted as evidence. Further, at the hearing, Applicant stated he never saw
the title search, and he was unprepared to answer questions regarding it. He argues the ZHB’s
Solicitor’s decision to independently conduct a title search was improper. Further, the ZHB
made a finding concerning the results of the title search, which it deemed “noteworthy.” F.F. No.
6. Applicant argues the ZHB erred in relying on the results of the title search where it was not
properly part of the record.
This issue is irrelevant to a determination of the merits of Applicant’s variance request.
Thus, even if the ZHB’s Solicitor somehow acted improperly in examining public records of
which Applicant was unaware before the ZHB hearing, this fact had no bearing on the ZHB’s
ultimate determination that Applicant did not meet its burden of proving entitlement to the
requested dimensional variance or, in the alternative, a de minimis variance. As such, although
the ZHB made a finding based on the results of the title search, see F.F. No. 6, this finding was
unnecessary to the ZHB’s ultimate decision that Applicant did not meet his burden of proving
entitlement to the requested variance. Therefore, Applicant’s argument is unavailing.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas J. Pugliese, :
Appellant :
:
v. : No. 2297 C.D. 2014
:
Zoning Hearing Board of :
Bethlehem Township :
:
v. :
:
Hariton Parashos :
ORDER
AND NOW, this 15th day of October, 2015, the order of the Court of
Common Pleas of Northampton County is AFFIRMED.
ROBERT SIMPSON, Judge | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1351241/ | 156 S.E.2d 733 (1967)
271 N.C. 364
STATE of North Carolina
v.
Otto WITHERS, Jr.
No. 249.
Supreme Court of North Carolina.
September 20, 1967.
*735 W. B. Nivens, Charlotte, Attorney for defendant appellant.
T. W. Bruton, Atty. Gen., and James F. Bullock, Deputy Atty. Gen., for the State.
*736 PLESS, Justice.
The defendant complains that the judge did not inform the jury "who, what jury, and under what circumstances these charges were made." The judge began his charge with the statement, "(T)he State of North Carolina charges in this bill of indictment," etc. The defendant contends that the jury was left in a state of doubt as to who made or brought these charges against this defendant. Having been indicted by a grand jury, this was irrelevant, and the contention is without merit.
The defendant further claims that the court committed prejudicial error in the following statements:
"Now, a reasonable doubt is not an imaginary or fanciful doubt, members of the jury, but a sane, rational doubt that arises out of the evidence or lack of evidence, or some deficiency in it." DEFENDANT'S EXCEPTION NO. 7 (R. p. 78) (Addendum, p. 4)
"A reasonable doubt is a termas that term is employed in the administration of the criminal law is an honest substantial misgiving generated by some insufficiency of the proof, an insufficiency which fails to convince your mind and judgment, and satisfy your reasoning of the defendant's guilt." DEFENDANT'S EXCEPTION NO. 8 (R. p. 78) (Addendum, p. 5)
These statements are in substantial accord with the definitions approved by the court. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133; State v. Steele, 190 N.C. 506, 130 S.E. 308. In Hammonds, supra, the court said, "The law does not require any set formula in defining reasonable doubt"; and we can see no prejudice to the defendant in the above definitions.
Another exception is to the following excerpts from the charge:
"It will be obvious to you that the distinction between murder in the first degree and murder in the second degree is the presence of premeditation and deliberation in murder in the first degree and the absence of premeditation and deliberation in murder in the second degree * * * in the second degree, members of the jury. In other words, to convict of murder in the first degree, it will be essential that the State should satisfy you beyond a reasonable doubt that the defendant killed the deceased with malice, and with premeditation and deliberation." DEFENDANT'S EXCEPTION NO. 14 (R. p. 81) (Addendum, p. 7)
"So you will observe that the distinction between murder in the second degree and manslaughter is the presence of malice in murder in the second degree, and its absence in manslaughter." DEFENDANT'S EXCEPTION NO. 15 (R. p. 81) (Addendum, p. 7)
There the court was explaining the differences between murder in the first degree and murder in the second degree, and manslaughter and murder in the second degree. The instructions are entirely correct as supported by our decisions in many cases. In State v. Downey, 253 N.C. 348, 117 S.E.2d 39, Winborne, C. J., succinctly summarized the degrees of murder:
"(1) Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. (2) Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. And (3) manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation."
The given instructions are in accord.
The final group of exceptions relate to the part of the charge in which the judge was defining a misadventure. He said:
"It is an intentionaluhit is an unintentional killing in which the perpetrator *737 had no wrong purpose in doing the act which caused the death; done accidentally and not negligently; while he was engaged in no unlawful act. In other words, misadventure, when applied to homicide, is the act of a man who, in the performance of a lawful act without any intention to do harm, and using proper precaution to avoid danger unfortunately kills another." DEFENDANT'S EXCEPTION NO. 17 (R. p. 85) (Addendum, p. 10)
While it appears that the judge used the word "intentional" at the beginning of the statement, it is quite clear that he immediately corrected himself by saying "it is an unintentional killing."
The above quotation is a correct statement of the law of killing by misadventure. In 26 Am.Jur., Homicide, § 220, p. 305, it is said: "Where it appears that a killing was unintentional, that the perpetrator acted with no wrongful purpose in doing the homicidal act, that it was done while he was engaged in a lawful enterprise, and that it was not the result of negligence, the homicide will be excused on the score of the accident." This is quoted by Sharp, J., speaking for the Court in State v. Phillips, 264 N.C. 508, 142 S.E.2d 337. See also 40 C.J.S. Homicide § 112b, p. 980.
The instruction given was more than the defendant was entitled to receive. It could not be seriously contended that the defendant was "in the performance of a lawful act without any intention to do harm." Four witnesses testified that he had gone to his mother-in-law's home with his pistol and that he had threatened to kill everybody in the house. And while he denied the threats, he did admit that he had gone there with a pistol, with bullets for it, and had remained there awaiting the return of his wife for at least six or seven hours.
The defendant had other exceptions, but they were not brought forward in the brief, and no reason or argument is stated and no authority cited in support of them. They are thus deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 810, and 1 Strong, N.C. Index, Appeal and Error § 38.
It appears that the defendant has had a fair trial.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351260/ | 59 Wash. App. 808 (1990)
802 P.2d 133
HILDEGARD SMITH, ET AL, Respondents,
v.
THE STATE OF WASHINGTON, Petitioner.
No. 12646-0-II.
The Court of Appeals of Washington, Division Two.
December 12, 1990.
As amended by order March 13, 1991.
Kenneth O. Eikenberry, Attorney General, and Michael P. Lynch, Assistant, for petitioner.
Merrifield B. Rees and McCormick, Hoffman, Rees, Faubion, Quinn & Van Buskirk, P.S., for respondents.
[As amended by order of the Court of Appeals March 13, 1991.]
*810 PETRICH, J.
The claimants, Hildegard Smith and others (Smith), purchased unregistered securities from William Bruntz that later proved worthless. When Bruntz absconded, they turned to the State for relief. They claim that the State, through the Securities Division of the Department of Licensing, negligently supervised Bruntz's activities after having issued an earlier cease and desist order against Bruntz for his illegal investment practices. Thus, they claim that this mishandling of the earlier charge against Bruntz and their loss because of Bruntz's misdeeds makes the State liable for their losses.
This court accepted discretionary review of the trial court's denial of the State's summary judgment motion for dismissal. We reverse.
I
[1, 2] "A motion for summary judgment is properly granted if there is no genuine issue of fact as to any material element necessary to support a claimed cause of action." Peoples Nat'l Bank v. Ostrander, 6 Wash. App. 28, 32, 491 P.2d 1058 (1971). This court must engage in de novo review; it must make the same inquiry as the trial court, looking to the pleadings, depositions, admissions, and affidavits to determine if there are any genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). Once the moving party has submitted adequate affidavits, the nonmoving party has the burden of setting forth specific facts that rebut the moving party's contentions and that disclose genuine issues of material fact. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash. 2d 1, 13, 721 P.2d 1 (1986). The nonmoving party "may not rely on speculation, argumentative assertions that unresolved factual issues remain". Seven Gables, at 13.
II
In 1984, the Securities Division of the Washington State Department of Licensing investigated a complaint about *811 William R. Bruntz, a securities dealer. The Securities Division found that Bruntz did not hold a valid license and was selling unregistered securities. The Division then issued a cease and desist order to Bruntz on April 17, 1984. Bruntz agreed to comply with that order. Receiving no further complaints, and without monitoring Bruntz's activities, the State closed its file on April 15, 1985.
Between April 1984 and February 1986, Smith purchased securities from Bruntz. These sales were in violation of the cease and desist order and without the knowledge of the Securities Division. During this time, Bruntz continued to advertise in the newspaper and on a reader board in front of his business.
In 1986, Bruntz stopped paying interest to Smith on her investments. Smith then brought suit against the Securities Division alleging that the Division had a duty to protect her from the losses she suffered.
Both Smith and the State moved for summary judgment. The trial court denied both motions, ruling that an issue of fact existed as to whether the Securities Division should have known of a violation of The Securities Act of Washington.
III
The trial court ruled that while the State did not know of Bruntz's activities concerning Smith's investments, perhaps it should have known, and, therefore, the State was not immune from suit as a matter of law.
The State, relying on Baerlein v. State, 92 Wash. 2d 229, 595 P.2d 930 (1979) and McKasson v. State, 55 Wash. App. 18, 776 P.2d 971, review denied, 113 Wash. 2d 1026 (1989), contends that it, while acting through the Securities Division of the Department of Licensing, had no duty to Smith as a matter of law and was entitled to a summary judgment of dismissal. In Baerlein, the court rejected claims against the State by investors who had purchased securities of little or no value. The investors claimed that the State breached its duty to them when it failed to issue stop orders against *812 false and misleading material contained in the licensee's registration statement and advertising material. The court then ruled that the State had no duty to the investors because the State's statutory authorization specifically disclaimed any responsibility as to the truth, competence, or nonmisleading nature of documents filed under the securities act. The court explained that the statutory scheme was designed to provide some protection to the investing public, but not to indemnify an individual injured by a licensee under the act. Likewise, in McKasson, the court rejected claims against the State by investors who had purchased real property securities in a fraudulent "Ponzi" scheme. The court rejected the notion that the individual investors were in a class of persons intended to be protected by the securities act and held that the State had no duty to them.
Smith does not dispute that the State's waiver of sovereign immunity by virtue of RCW 4.92.090[1] is qualified by the public duty doctrine.[2] Smith, however, contends here that the State's liability is premised on one or more of the exceptions to the doctrine. We disagree.
The public duty doctrine, which immunizes the State from claims based on the State's negligent or improper exercise of its regulatory authority, is subject to four recognized exceptions. None of these exceptions applies here.
*813 A. LEGISLATIVE INTENT
[3] This exception[3] applies when there is a regulatory statute that "evidences a clear legislative intent to identify and protect a particular circumscribed class of persons." Honcoop v. State, 111 Wash. 2d 182, 188, 759 P.2d 1188 (1988). In Baerlein v. State, supra, the court examined specific securities statutes, the declaration of purpose for the act, and the preamble to the predecessor of the current securities laws and determined that no such specific legislative intent exists. Baerlein, 92 Wn.2d at 233-34. We agree that the Legislature has shown no intent to protect this particular class of investors.
B. SPECIAL RELATIONSHIP EXCEPTION
[4] This exception is used to determine when the State's general duty focuses on a claimant. Taylor v. Stevens Cy., 111 Wash. 2d 159, 166, 759 P.2d 447 (1988). Three prerequisites are required, none of which exist in the present case:
(1) There must be privity or direct contact between the public official and the injured plaintiff.
(2) The public official must give express assurances.[4]
(3) The plaintiff must justifiably rely on those assurances.
See Taylor, at 166.
Smith stipulated that she had no contact with any person in the Securities Division prior to this complaint. Therefore, as there was no privity or direct contact between the State and Smith, this exception cannot apply.
*814 C. VOLUNTEER RESCUE EXCEPTION
[5] This exception is based on the tort theory that if one undertakes to render aid to another or to warn a person in danger, one must exercise reasonable care. If a rescuer fails to exercise care and increases the risk of harm to those he is trying to rescue, he is liable for any damages he causes. Brown v. MacPherson's, Inc., 86 Wash. 2d 293, 299, 545 P.2d 13 (1975). This exception has two elements, neither of which is satisfied in the present case.
(1) The State agents must gratuitously assume the duty to warn the plaintiffs of the danger; and
(2) They must breach their duty by failing to warn the endangered parties.
D. FAILURE TO ENFORCE EXCEPTION
Under the failure to enforce exception a general duty of care owed to the public can be owed to an individual where:
(1) Governmental agents responsible for enforcing statutory requirements possess actual knowledge of a statutory violation.
(2) They fail to take corrective action.
(3) There is a statutory duty to do so.
(4) And the plaintiff is within the class the statute intended to protect.
See Honcoop v. State, 111 Wash. 2d 182, 190, 759 P.2d 1188 (1988).
[6] The trial court ruled that a material issue of fact existed as to whether the State should have known about Bruntz's violations and, therefore, it denied the State's motion for summary judgment. This was error. In Zimbelman v. Chaussee Corp., 55 Wash. App. 278, 282, 777 P.2d 32 (1989), review denied, 114 Wash. 2d 1007 (1990), the court specifically said that "what the official should have known", though "a familiar and well-recognized rule in general tort law, ... does not apply in this context." The Zimbelman court looked to the history of cases supporting the Taylor *815 v. Stevens Cy., supra, decision and found that "[k]nowledge does not include what an official might have known if he had performed his duties more effectively or vigilantly." Zimbelman, 55 Wn. App. at 282.
Here, it is undisputed that the State did not have knowledge of the transactions. As Smith fails to meet this first element of the test, the failure to enforce exception does not apply.
The State had no duty to protect these claimants and the trial court should have granted the State's motion for summary judgment.
Judgment reversed.
ALEXANDER, C.J., and WORSWICK, J., concur.
Review denied at 116 Wash. 2d 1012 (1991).
NOTES
[1] "Tortious conduct of state Liability for damages. The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. [1963 c 159 § 2; 1961 c 136 § 1.]"
[2] This doctrine provides that the government's regulatory duty which runs to the public in general does not run to members of the public individually (i.e., "a duty to all is a duty to no one"). Bailey v. Forks, 108 Wash. 2d 262, 265, 737 P.2d 1257, 753 P.2d 523 (1987).
[3] Though often referred to as an exception, "it is simply a statutory duty imposed upon the governmental entity" and not an exception. Baerlein, 92 Wn.2d at 232.
[4] Taylor specifically overruled J&B Dev. Co. v. King Cy., 100 Wash. 2d 299, 669 P.2d 468, 41 A.L.R. 4th 86 (1983), which had held that "inherent assurances" were sufficient. Taylor, 111 Wn.2d at 167-68. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351400/ | 802 P.2d 656 (1990)
104 Or.App. 389
STATE of Oregon, Respondent,
v.
Theodore J. INGRAM, Appellant.
State of Oregon, Appellant,
v.
JAMES RICHARD DEVEREAUX, Jr., Respondent.
State of Oregon, Respondent,
v.
LINDA MARIE GARDNER, Appellant.
88C-21014; CA A50427, 10-88-03617; CA A51174, 88P-3379; CA A61024.
Court of Appeals of Oregon, In Banc.
Argued and Submitted June 30, 1989.
Argued and Submitted November 20, 1989.
Argued and Submitted February 14, 1990.
Resubmitted July 21, 1990.
Decided November 21, 1990.
Reconsideration Denied February 13, 1991.
*658 Dale L. Crandall, Salem, argued the cause and filed the brief, for appellant, Theodore J. Ingram.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, in CA A50427.
Janet Klapstein, Asst. Atty. Gen., Salem, argued the cause, for appellant. With her on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, in CA A51174.
Kenneth Morrow, Eugene, argued the cause, for respondent, James Richard Devereaux, Jr. With him on the brief, was Morrow, Monks & Sharp, P.C., Eugene.
Joseph E. Penna, Monmouth, argued the cause and filed the brief, for appellant, Linda Marie Gardner.
Wendy J. Paris, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the brief, were Dave Frohnmayer, *659 Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, in CA A61024.
CA A50427: Argued and Submitted June 30, 1989.
CA A51174: Argued and Submitted November 20, 1989.
CA A61024: Argued and Submitted February 14, 1990.
Resubmitted In Banc July 21, 1990.
EDMONDS, Judge.
The common issue in each of these cases is whether the search warrant complies with ORS 133.565(2)(b) and Article I, section 9, of the Oregon Constitution, which require that a person to be searched be described with particularity. For this opinion, we consolidate State v. Ingram, CA A50427; State v. Devereaux, CA A51174; and State v. Gardner, CA A61024.
In State v. Ingram, defendant appeals his conviction for possession of a controlled substance. ORS 475.992(4). He argues that the trial court erred in denying his motion to suppress evidence seized from his pickup during the execution of a search warrant. The warrant authorized the search of a residence and "[a]ll individuals and occupants found to be frequenting said premises and all vehicles determined to be associated with the occupants of said premises."
The warrant was issued on the basis of an affidavit by Officer Nelson in which he said that Elaine Sink's residence was being used as a place to sell controlled substances. He also described different transactions that had occurred there:
"Elaine Joyce Sink went on to say that she always had a supply of cocaine and that your affiant could phone her at her residence in order to receive cocaine.
"Elaine Joyce Sink advised she handles a minimum of five to seven thousand dollars in drug business through her residence each week.
"* * * * *
"Your affiant approached the residence of Elaine Joyce Sink, located at 4155 Lancaster Drive NE, Salem, space #57 at 1037 hours. * * * Elaine Joyce Sink came to the door and allowed your affiant to enter. Your affiant immediately became aware of a very strong odor of marijuana smoke in the trailer. * * * Sink invited your affiant to the rear portion of the trailer. We entered what appeared to be the middle bedroom of the trailer off the hallway. When entering this room, your affiant noted there were two scales set up on a desk, one was an Ohaus scale and the other was a RCBS scale. * * * Elaine Joyce Sink pulled two separate bags of marijuana from a box in the room.
"* * * * *
"Your affiant arranged to go to Elaine Joyce Sink's residence to purchase some more marijuana. * * * [S]he directed your affiant back into her business room for the drug sale. She weighed the substance which was provided to her by Stephen Thomas Drynan and it weighed just shy of 1/2 ounce of thai [sic] marijuana.
"* * * * *
"Your affiant arrived at Elaine Joyce Sink's residence located at 4155 Lancaster Drive NE Salem, space #57 at 1150 hours and entered. She directed your affiant back to the middle bedroom area of her trailer house where your affiant again observed the two separate scales for weighing cocaine and marijuana. Elaine Joyce Sink opened up her portable safe and removed (1/8th) one-eighth ounce of cocaine which was already weighed and packaged in a plastic baggie. * * * Elaine Joyce Sink pulled out a plastic baggie containing approximately (1/2) one-half ounce of cocaine and showed it to your affiant. She advised your affiant she also had two other plastic baggies containing quantities of marijuana and the aforementioned thai [sic] and `green' bud marijuana.
"* * * * *
"On April 8, 1988 at approximately 1100 hours your affiant called Elaine Joyce Sink and arranged to conduct a marijuana transaction. Your affiant arrived at her residence at 1120 hours and knocked on the door. Elaine Joyce Sink yelled from within the trailer house to come in. Your affiant entered the trailer and she directed the affiant back to the middle bedroom where your affiant again observed the two sets of scales which Elaine Joyce Sink uses to weigh out quantities of cocaine and marijuana for distribution. She opened the portable *660 safe with her keys and your affiant observed various quantities of packed cocaine and marijuana. Your affiant was purchasing (1) one ounce of marijuana from Elaine Joyce Sink and she removed approximately (1) one ounce from a half pound bag." (Emphasis in original.)
In addition, the affiant describes multiple transactions at Sink's residence and other places involving numerous individuals over the next several weeks.
When the officers arrived at Sink's residence to execute the warrant, a pickup was the only vehicle parked in the vicinity. Nelson knocked on the door, identified himself as "Ron" and was admitted by defendant. There was no one else in the residence. Defendant was holding a piece of paper that indicated that he had been taking telephone messages. The trial court found that
"defendant was the only person present in the [residence], and the defendant reasonably appeared to be, and in fact was, exercising lawful and exclusive dominion and control over the premises. However, the executing officers did not then believe, and no reasonable basis then existed for the officers to believe, that the defendant was a person who frequented the premises."
Despite the fact that nearly all of the individuals and vehicles described in Nelson's affidavit were identified by name, neither defendant nor his vehicle were described or mentioned. Nelson searched defendant.
The trial court's written findings describe what occurred next:
"Among the items found in the search of the defendant were a quantity of marijuana and the key to a vehicle. After finding the key, Officer Nelson read defendant's Miranda Rights to the defendant and then asked the defendant if the key was to the defendant's vehicle. The defendant understood his rights and knowingly, intelligently and voluntarily waived them by responding to the officer's question and acknowledging that the key was to the defendant's vehicle. Officer Nelson then informed defendant that he had a search warrant to search vehicles associated with the described premises and stated his desire to search the defendant's vehicle. The defendant indicated that he did not object. Defendant's response to Officer Nelson's assertion of authority to search vehicles associated with the premises was equivocal and was not a knowing, voluntary and intelligent consent to the search of defendant's vehicle by police officers."
The officers searched the pickup parked in front of the residence and found the contraband that is the basis of the charge.
The trial court concluded that the search of defendant's person and pickup were authorized by the warrant, but were not otherwise authorized by any exception to the warrant requirement. The defendant then stipulated to the fact that controlled substances were found in his pickup, and the court found him guilty. No evidence seized from the residence or defendant's person was offered.
On appeal, defendant argues that he was not a member of the class of persons authorized to be searched by the warrant and that the warrant was not sufficiently particular under ORS 133.565(2)(b) and Article 1, section 9. He asserts that suppression of the evidence found in his pickup is necessary, because the unlawful search of his person resulted in the officer finding the key that led to the search of his vehicle. The state argues that there is no statutory or constitutional requirement that persons be specifically named when a warrant for the search of premises also authorizes the search of persons found on the premises.
In State v. Devereaux, defendant was indicted for unlawful possession and delivery of a controlled substance. ORS 475.992. The state appeals from an order granting defendant's motion to suppress evidence seized from his residence and person pursuant to a search warrant. ORS 138.060(3). The trial court granted the motion on the basis of its apparent conclusions that the affidavit supporting the warrant failed to establish probable cause to search the residence, that the information contained in the affidavit was stale and that the warrant was defective, because it did *661 not specifically name defendant. The affiant stated in his affidavit:
"Since early February, 1988, I have become involved in an undercover investigation targeted at identifying and prosecuting individuals who are selling controlled substances in the Oakridge community. In the course of this investigation, I have come to know Arlene Harris, an Oakridge resident. Harris has advised me that she is involved in the use of drugs and has identified numerous other people in the Oakridge area involved with controlled substances. Harris is not aware of this investigation or of my true identity as an Oakridge police officer.
"On April 2, 1988, I went with Arlene Harris to the [Oakridge] residence of Gerry and Tami Lundbom * * *. Harris previously advised me that Gerry Lundbom was a supplier of cocaine. Upon arriving at the residence, I met with Gerry Lundbom and arranged to purchase 1/16th ounce of cocaine. I gave Gerry Lundbom $130.00. Later that same date, I returned to Lundbom's residence to pickup [sic] the cocaine.
"During the course of this transaction, Harris advised me that [defendant] Jim Devereaux was a supplier of cocaine to number [sic] of Oakridge area residents. While at Lundbom's residence during the initial arrangement for the purchase, Lundbom stated he would get the cocaine from `Jim, up on the hill.' He then got his telephone and placed it on the coffee table in front of me. I observed him dial 782-3284. Apparently someone answered and I heard Lundbom say, `Jim, do you have a sixteenth I can get from you.' After a reply, I heard Lundbom say, `Okay, I'll see you in a little bit.' Lundbom hung up the phone and told me he could get the cocaine.
"Subsequent to the April 2, 1988 cocaine transaction with Gerry Lundbom, I looked up Devereaux's phone number in the Oakridge phone directory. I noted that 782-3284 is listed to J.R. Devereaux, Jr., 49671 Huckleberry Rd. I also noted this residence address is located up a hill from Oakridge. Arlene Harris told me that Jim Devereaux is the `guy up on the hill.'
"On April 7, 1988, I again purchased cocaine from Gerry Lundbom at his residence. * * * On this occasion, Lundbom indicated that he needed to obtain the cocaine from his local supplier.
"On April 15, 1988, I contacted Gerry Lundbom at his residence for the purpose of buying 1/2 gram of cocaine. I asked him if he got in touch with Jim. He said he hadn't yet but that it would only take a phone call. He then made a phone call. I heard Lundbom state, `Jim, I'm coming up, bye.' He then hung up. I told Lundbom that he could take his cut out and I'd be back to pick the cocaine up later. He said that `... Jim would probably give him a couple of lines while he was up there.'
"Prior to leaving, I asked Lundbom to ask Jim if he would have an ounce of cocaine for me this Friday. I had more conversation with Lundbom about Jim and he indicated he would ask Jim how much the cocaine would cost. When I returned to the Lundbom's residence about one hour later, he gave me the cocaine and told me that Jim said one ounce of coke would cost $1800."
Defendant argues that, although he was identified by name in the affidavit, the warrant was defective, because it directed the officers to search defendant's residence and "its occupants" without identifying defendant by name in the warrant. The state argues that, because the affidavit named defendant and showed that he was an occupant of the residence to be searched, the warrant complied with ORS 133.565(2)(b).
In State v. Gardner, defendant appeals from a conviction for unlawful possession of a controlled substance. ORS 475.992(4)(b). She assigns as error the failure of the trial court to grant her motion to suppress evidence seized pursuant to a search warrant. The warrant directed the officers to search defendant's residence and "all persons found on the premises." The affidavit on which the issuing court relied named only defendant and one other person. Defendant argues that the quoted *662 language does not comply with either ORS 133.565(2)(b) or Article I, section 9, which require that a person to be searched be described with particularity. The state responds that the warrant was sufficiently particular to inform the officers serving the warrant as to what persons the issuing court had authorized them to search.
ORS 133.565(2)(b) provides:
"(2) The warrant shall state, or describe with particularity:
"* * * * *
"(b) The name of the person to be searched, or the location and designation of the premises or places to be searched."
Moreover, Article I, section 9, of the Oregon Constitution provides, in relevant part:
"[N]o warrant shall issue but upon probable cause * * * and particularly describing the place to be searched, and the person or thing to be seized."
In the absence of legislative history to the contrary, we hold that ORS 133.565(2)(b) and Article I, section 9, provide an identical standard of "particularity," based on a policy of prohibiting general warrants.[1]
In State v. Blackburn/Barber, 266 Or. 28, 511 P.2d 381 (1973), the Supreme Court noted:
"Both the Fourth Amendment to the United States Constitution and Article I, § 9, of the Oregon Constitution require a search warrant `particularly describing the place to be searched.' It has been explained that `the historical motivation for this constitutional mandate was a fear of "general warrants," giving the bearer an unlimited authority to search and seize.' More specifically, the aim of the requirement of particularity is to protect the citizen's interest in freedom from governmental intrusion through the invasion of his privacy. If the search warrant describes premises in such a way that it makes possible the invasion of this interest in privacy without the foundation of probable cause for the search, the warrant is too broad and therefore constitutionally defective.
"In testing a warrant for definiteness `it is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain the identity of the place intended.' The description must be sufficiently clear so that the property to be searched is recognizable from other neighboring properties. If, however, a warrant purporting to authorize a search is sufficiently ambiguous that it is impossible to identify with a reasonable degree of certainty the particular premises authorized to be searched, the warrant may not be executed and any search pursuant to it is illegal, whether of the premises actually intended or not, because of the danger that the privacy of unauthorized premises will be invaded." 266 Or. at 34-35, 511 P.2d 381. (Footnotes omitted.)
We see no difference in application between the search of places and persons.
The purported defect in these warrants is not that the executing officer cannot tell from the face of the warrant whom he is to search; rather, the question is whether the description on the face of each warrant is so general that it authorizes the search of individuals for whom no probable cause to search exists. Professor LaFave states:
"[T]he individual to be searched must be described with such particularity that he may be identified with reasonable certainty. The person's name, if known, should be set forth, but a name is not essential in all cases. Description of the individual by an alias, family relationship to another named person or even as `John Doe' will suffice when other facts, such as physical description and location are also included.
"* * * * *
*663 "One form of warrant which has been challenged with some frequency directs a search for particularly described items within a particularly described home, apartment, store, or vehicle, including `any and all persons found therein.' While some courts have condemned this form of warrant as a `general or blanket' search warrant which would authorize the `indiscriminate search of a large number of people without naming or describing any of them,' this characterization is not justified in all cases[.]
"* * * * *
"A search warrant authorization to search all persons found within a specifically described place is not lacking in particularity in the sense that the executing officer will be unable readily to determine to whom the warrant applies. Rather, the question is whether there is sufficient particularity in the probable cause sense, that is, whether the information supplied the magistrate supports the conclusion that it is probable anyone in the described place when the warrant is executed is involved in the criminal activity in such a way as to have evidence thereof on his person. If the evidence tendered to the magistrate supports such a conclusion, then the search-all-persons-present warrant is unobjectionable. If the evidence does not support such a conclusion, then the searches of those present find no justification in the search warrant." 2 LaFave, Search and Seizure § 4.5(e), 228-31 (2nd ed 1987). (Citations omitted.)
Contrary to the dissenting opinions, we think it is legally sufficient that a warrant describe a general category of persons, if there is probable cause. We do not believe that the legislature or the framers of the Constitution intended to prohibit searches of individuals for whom probable cause to search exists, but who, because of the circumstances, could not be described by name or personalized descriptions. For instance, probable cause would exist where an affiant reported that a party was in progress and all the participants were using controlled substances, even though he was unable to name or give personal descriptions of those present. However, if the person to be searched is named or described with particularity in the supporting affidavit, the warrant must contain a similar description to comply with ORS 133.565(2)(b) and Article I, section 9. Moreover, because the risk is great that an innocent person may be swept up in a search under a warrant that authorizes a search of all persons on the premises, the issuing magistrate should review the supporting affidavit for probable cause with strict scrutiny. The affidavit must indicate with particularity why probable cause exists for the search of those generally described. See People v. Nieves, 36 N.Y.2d 396, 369 N.Y.S.2d 50, 330 N.E.2d 26 (1975).
We apply those principles to each of the consolidated cases to illustrate their operation.
State v. Ingram: The warrant authorized a search of Sink's mobile home and
"[a]ll individuals and occupants found to be frequenting said premises and all vehicles determined to be associated with the occupants of said premises."
Defendant argues that the warrant directs the police to search only those persons who "frequent" Sink's residence, i.e., those who are present there more than once. Warrants should be read in a realistic and common sense manner. State v. Villagran, 294 Or. 404, 415, 657 P.2d 1223 (1983). We do not understand how the magistrate could have intended that the officers search only those whom they know to have been present on the premises more than once, given the statement in the affidavit that five to seven thousand dollars a week in drug transactions involving many persons occurred on the premises. We interpret the face of the warrant to authorize the search of those persons who could be charged with a violation of ORS 167.222(1).[2]
*664 Although Nelson's affidavit does not specifically describe defendant, it does describe a mobile home where controlled substances are stored and in which several individuals had been involved in continuous drug selling activity over the course of several months. Defendant was found alone inside the mobile home holding a piece of paper that indicated that he had been taking telephone messages. In the light of those facts, we hold that he fits the description of the class of people that were authorized to be searched by the warrant. See Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, cert. den. 429 U.S. 944, 97 S. Ct. 364, 50 L. Ed. 2d 314 (1976). The language in the warrant meets the requirements of ORS 133.565(2)(b) and Article I, section 9, and the trial court properly denied defendant's motion to exclude the evidence.
State v. Devereaux: The warrant directed the officers to search defendant's residence and "its occupants." Whether the affidavit established probable cause to search all "occupants" of defendant's residence is immaterial. "Occupants" is not a particular description of defendant, in the light of the fact that he was named in the affidavit. As a result, the warrant violates ORS 133.565(2)(b) and Article I, section 9. The trial court correctly granted defendant's motion to suppress items seized from defendant's person.[3]
The state also challenges the part of the order granting defendant's motion to suppress evidence seized from his residence. An affidavit can establish probable cause to search if it would "lead a reasonable person to believe that seizable things will probably be found in the location to be searched." State v. Anspach, 298 Or. 375, 380-81, 692 P.2d 602 (1984); State v. McBride, 96 Or. App. 268, 276, 773 P.2d 379, rev. den. 308 Or. 184, 776 P.2d 1291 (1989). Sufficiency of an affidavit depends, not only on the facts expressly asserted, but also on the reasonable inferences that can be drawn from those facts. State v. Anspach, supra, 298 Or. at 381, 692 P.2d 602; State v. Howell, 93 Or. App. 551, 557, 763 P.2d 179 (1988), rev. den. 307 Or. 405, 769 P.2d 779 (1989).
The affidavit established probable cause to search defendant's residence. The issuing magistrate could have properly inferred that evidence of unlawful possession and delivery of a controlled substance would be found at the residence from the fact that the supplier could be contacted at that residence by prospective purchasers. See State v. Anspach, supra, 298 Or. at 381, 692 P.2d 602; State v. Villagran, supra, 294 Or. at 408, 657 P.2d 1223; State v. Howell, supra, 93 Or. App. at 557, 763 P.2d 179. Further, the affidavit showed a continuing course of conduct from April 2 to April 15, and its information was not stale on April 22. See State v. Wilson/Helms, 83 Or. App. 616, 623, 733 P.2d 54, rev. den. 303 Or. 172, 734 P.2d 1365 (1987). The trial court erred in granting defendant's motion to suppress items seized from the residence.[4]
State v. Gardner: The warrant directed the officer to search defendant's residence and "all persons found on the premises," even though defendant was named in the affidavit. The warrant violates ORS 133.565(2)(b) and Article I, section 9, because "all persons found on the premises" is not a particular description of defendant.
However, the record is not clear as to whether the seized evidence was found on defendant's person, within the residence or both. If evidence that led to defendant's arrest was seized from the residence, and if *665 the subsequent search of defendant was incident to her arrest, the search was lawful. We vacate defendant's conviction and remand for further findings. If the trial court finds that the state introduced no evidence seized as a result of the search of defendant, or that the introduction of that evidence was harmless, the court shall reenter the judgment of conviction; otherwise it shall grant a new trial.
State v. Ingram: affirmed; State v. Devereaux: order reversed with respect to suppression of evidence seized from defendant's residence; otherwise affirmed; State v. Gardner: judgment vacated and remanded for further proceedings not inconsistent with this opinion.
RICHARDSON, Judge, concurring in part; dissenting in part.
The issue common to the three cases consolidated on appeal is whether each search warrant satisfies statutory or constitutional particularity requirements in its designation of the persons to be searched. There are essentially two questions in this inquiry: first, whether the warrant description is sufficient for the executing police officer to identify the persons whom the magistrate intended to be searched; and, second, whether there is probable cause to search the persons whom the magistrate described in the warrants.
In testing whether a warrant is sufficiently particular, the first issue is whether it is adequate from the standpoint of the officer executing it. In essence, the question is whether the warrant is a sufficient "road map" to direct the officer to the place or person that the magistrate intended to be searched. The road map is sufficient, at least in a constitutional sense, if the description is such that the officer can with reasonable effort ascertain the person or place to be searched. If the warrant is so ambiguous that the person to be searched cannot be identified with reasonable certainty, it may not be executed, and any evidence obtained will not be lawfully seized. State v. Blackburn/Barber, 266 Or. 28, 511 P.2d 381 (1973). That is so, even if the issuing magistrate found probable cause to search the person or place that was actually searched. The vice of a warrant that is not a good road map is the risk that the officer, in resolving the ambiguous directions, may invade privacy interests not intended by the magistrate to be invaded or not dictated by probable cause to be invaded.
The constitutional requirement of definiteness in a warrant's description is the product of the historical fear of general warrants. See State v. Blackburn/Barber, supra. However, an adequate road map is only one method of quelling the fear of general warrants; the principal method is the requirement for an affidavit showing probable cause to believe that evidence will be found in the places described. The definiteness of the directions to the executing officer is only tangentially related to the magistrate's job of issuing a constitutional warrant and the analysis is different.
For example, if a warrant commanded the search of all students present at South Salem High School on a certain day, the warrant is sufficiently particular. The officer would have directions to be able to locate the persons to be searched. The status of being a student and the presence at a designated place on a particular day become the descriptive facts that satisfy the requirements of particularity. The officer is not left to his own devices in finding the persons to be searched. There is probably no inherent defect in the warrant just because it describes a large class of persons.
If the warrant is a sufficient directive to the officer, it may nevertheless be defective because the magistrate has not followed statutory or constitutional directives. In the context of my example, the issue is whether there was probable cause to believe that a search of any student selected would disclose evidence of a crime described in the warrant application. In all probability, it would not be possible to establish that all students would be involved in the criminal activity being investigated and that every student searched would probably have evidence on his person. We could then say that, as a matter of law, the *666 warrant is too broad or, in constitutional parlance, is not or cannot be made sufficiently particular.
Beyond the obvious cases, whether the warrant is too broad from the magistrate's perspective depends on the facts presented in the application for the warrant. As the location and the population to be searched becomes more limited, the likelihood that every person present is a party to the offense and probably is secreting evidence becomes more plausible. It then becomes a matter of determining if the submission establishes probable cause to believe that the police will find evidence on the persons designated.
In short, a warrant commanding the search of all persons in a specific place is not lacking in particularity in the sense that the executing officer will be unable readily to determine to whom the warrant applies. Rather, the question is whether there is particularity in the probable cause sense; that is, whether the facts support a conclusion that it is probable that everyone in the described location at a particular time is involved in the criminal activity in such a way as to have evidence on his person.
Applying this analysis to a challenge of a warrant depends, in large measure, on the particulars of the challenge. If a defendant does not challenge the sufficiency of the affidavit to support the warrant, but only the facial particularity, we will be limited to deciding if the warrant is sufficient road map on its face, unless no factual predicate could be laid for the warrant, as a matter of law.
In each of the cases on review, the defendant, in addition to the constitutional challenge, has argued that the warrant does not comply with ORS 133.565:
"(2) The warrant shall state, or describe with particularity:
"* * * * *
"(b) The name of the person to be searched, or the location and designation of the premises or places to be searched."
I agree with the majority that the statute defines the authority of an officer to search and implements a constitutional right and, thus, that a statutory violation requires suppression of the evidence. I also agree with the constitutional analysis that a warrant directing the search of an unnamed person or a class of persons is not defective on its face. However, I do not agree that the state and federal constitutional requirements of particularity are identical to those expressed in ORS 133.565.
However flexible the state and federal constitutions may be in terms of probable cause and particularity, the statute need not be, and is not, as flexible. We cannot, on the one hand, hold that the statute guarantees a constitutional right and, on the other hand, ignore the statute's words. Although there is some room for doubt as to what the legislature meant, there is scant room for creative construction of the requirement that the warrant "shall state, or describe with particularity: * * * the name of the person to be searched." Those words are more precise and limiting than the comparable phrases of Article I, section 9, and the Fourth Amendment. I interpret the statute to require that the name of the individual be included or that the individual be described with sufficient particularity that the executing officer can locate that individual. Unlike the constitution, the statute requires that the warrant relate to a particular individual. It does not allow a description, however precise, that is of a class of individuals only determinable by facts which exist at the time the warrant is executed. For example, a warrant ordering the search of all persons present in the described residence would be constitutionally sufficient but would not meet the statutory requirement, because no particular person is named or described.
It could be that there is implicit in ORS 133.565(2) a limitation that a warrant to search persons cannot be issued unless the magistrate can describe a particular individual that there is probable cause to believe will have evidence on his person. That effectively prevents issuance of warrants to search unknown persons. I can agree with the implicit conclusion of the *667 majority that reading the statute as I do would unnecessarily limit otherwise constitutional searches. In many instances, there is probable cause to believe that a group or class of persons are secreting evidence on their persons, but whose identity is unknown when the warrant is issued. The legislature is free to limit warrants more narrowly than the state or federal constitutions do.
I will now apply the above principles to each of the consolidated cases to illustrate their operation.
In State v. Ingram, the warrant commanded a search of a described residence and
"[a]ll individuals and occupants found to be frequenting said premises and all vehicles determined to be associated with the occupants of said premises."
Defendant argues that the search of his person exceeded the scope of the warrant, because he was not a person or occupant who was frequenting the premises. The trial court found that there was no basis for the officer to believe that defendant was a person frequenting the place, but that the officer reasonably believed that defendant was an occupant of the premises. The majority concludes that defendant was properly searched, because he could have been charged with frequenting a place where drugs are used in violation of ORS 167.222(1). Consequently, he fitted the description in the warrant. Both interpretations of the warrant's descriptions are reasonable, and the facts known to the officer at the time of the search supported a search of defendant as a person described.
Defendant's next challenge to the warrant appears to be twofold: first, because he was not named in the warrant it violated ORS 133.565(2)(b); and, second, aside from the statute, there was not specificity sufficient to satisfy the particularity requirement of the state or federal constitutions. The warrant was sufficient to satisfy the constitutions. It was a specific road map for the officer, and the affidavit established probable cause to believe that all occupants or persons frequenting the premises would be involved in the extensive narcotics trade being conducted there. However, the warrant does not comply with the statute. It does not name defendant or even purport to describe a particular individual person to be searched. In that light, the warrant was invalid, insofar as it commanded the search of persons or occupants.
The narcotics that were the basis of the charge were seized from defendant's pickup that was parked near the residence. The drugs found on his person were not offered as evidence. The trial court found:
"The executing officers could not reasonably have concluded that defendant's vehicle was associated with the defendant if they had not first conducted the search of the defendant and discovered the key to the vehicle, which led to their inquiry whether the key was to defendant's vehicle and their assertion of authority to search vehicles."
Defendant does not make any argument about the search of his vehicle and does not explicitly contend that an unlawful search of his person makes the search of his pickup unlawful. In the light of the trial court's analysis, and viewing defendant's brief charitably, a possible argument is that the police exploited the illegally obtained information defendant's vehicle keys and his statement to search the pickup, and so the drugs found should be suppressed. The warrant gave authority for the officer to search the vehicle independently of the authority to search persons. However, in order to determine if the vehicle was described in the warrant, the officer had to determine that it was associated with an occupant of the premises. As the trial court found, that information was obtained from the search of defendant. The trial court concluded that that search of defendant was lawful and, consequently, that the evidence from the pickup was legally seized.
We are not assisted by the state's brief because it does not mention the search of the vehicle or discuss a basis for upholding that search if the search of defendant is deemed unlawful. For example, the state *668 does not argue that the search of defendant was authorized as incident to his arrest or on some basis apart from the warrant. I would conclude that the search of defendant's vehicle was unlawful and that the court erred by denying the motion to suppress.
In State v. Devereaux, the warrant commanded the officers to search a particularly described residence and "its occupants." The trial court allowed defendant's motion to suppress, on the ground, inter alia, that defendant, who was searched, was not named in the warrant as required by ORS 133.565(2)(b). The majority concludes that the warrant is deficient, because "`[o]ccupants' is not a particular description of defendant, in the light of the fact that he was named in the affidavit and, as a result, the warrant violates ORS 133.565(2)(b) and Article I, section 9." 104 Or. App. at 401, 802 P.2d at 664. The essence of that conclusion is that the warrant must be as descriptive as is made possible by the information available to the magistrate. If the name of the person is known, it must be included. Conversely, if the name is not known or if a particular individual is not contemplated, then the statute allows a less particular description or a description of unknown persons. As I have indicated, I do not agree with that interpretation. The search of defendant's person pursuant to the warrant was unlawful, because the warrant did not purport to describe a particular person. I agree, for that reason, that the evidence seized from his person was properly suppressed. I also agree that the trial court erred by suppressing evidence seized from the residence. The parts of the warrant are separable, and the fact that the command to search the person is defective does not invalidate the other commands of the warrant.
In State v. Gardner, the warrant directed the officers to search defendant's residence and "all persons found on the premises." It suffers from the same statutory vice as the warrants in Ingram and Devereaux: It does not relate to a particular person, as ORS 133.565(2)(b) requires. The majority is correct that, if the evidence that the state offered was obtained from the residence and not from defendant's person, then the conviction should be affirmed. On the other hand, any evidence obtained by a search of defendant's person pursuant to the warrant would have to be suppressed, because the warrant is unlawful under ORS 133.565(2)(b).
JOSEPH, C.J., and BUTTLER and NEWMAN, JJ., join in this opinion.
NEWMAN, Judge, concurring in part; dissenting in part.
I concur in the concurring and dissenting opinion of Richardson, J., and the results he reaches, but I would hold that the particularity requirements of both ORS 133.565(2)(b) and of Article I, section 9, were violated. Accordingly, in State v. Ingram, although I agree with Richardson, J., that the warrant does not comply with ORS 133.565(2)(b), I would also hold that it does not comply with Article I, section 9. In State v. Devereaux, I agree with Richardson, J., that the search of defendant's person pursuant to the warrant was unlawful, because the warrant did not purport to describe a particular person, but I would also hold that, for the same reason, it violates the particularity requirements of Article I, section 9. In State v. Gardner, I agree with Richardson, J., that the warrant suffers from the same statutory vice as the warrants in Ingram and Devereaux, but I would also hold that it violates the particularity requirements of Article I, section 9.
NOTES
[1] ORS 133.565 was enacted as part of the 1973 Oregon Criminal Procedure Code, which was the legislature's attempt to update and codify existing criminal procedure law. Commentary, Proposed Oregon Criminal Procedure Code XXXII (1972); see also Minutes, Senate Committee on Judiciary (Feb. 5, 1973 written statement of Chapin Milbank). ORS 133.565 is in part based on former ORS 141.080, which set forth the required form of a search warrant. Commentary, supra, at 75. Nothing in the legislative history suggests that the word "particularity" used in ORS 133.565(2)(b) has a different meaning than in Article I, section 9.
[2] ORS 167.222(1) provides:
"A person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place or to keep or sell them in violation of ORS 475.005 to 475.285, 475.295 and 475.940 to 475.995."
[3] Because we hold that ORS 133.565(2)(b) and Article I, section 9, impose identical standards, we do not reach the state's argument that a violation of ORS 133.565(2)(b) is not of constitutional proportions. See State v. Davis, 295 Or. 227, 236, 666 P.2d 802 (1983).
[4] The fact that the search of defendant was unauthorized does not invalidate the authorized search of the residence. See State v. Blackburn/Barber, supra, 266 Or. at 36-37, 511 P.2d 381. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351182/ | 116 Ga. App. 211 (1967)
156 S.E.2d 370
HOWELL
v.
AMERSON.
42926.
Court of Appeals of Georgia.
Argued July 5, 1967.
Decided July 11, 1967.
Rehearing Denied July 21, 1967.
Jay M. Sawilowsky, for appellant.
George B. Rushing, Hull, Towill & Norman, Julian B. Willingham, for appellee.
EBERHARDT, Judge.
1. Where plaintiff's husband sought to borrow a used electric drill from the defendant, which he had purchased approximately two months before, on which defendant installed a new plug for connecting to the electric current and informed the husband that he might have it, warning "It will shock you," but thereafter in the husband's presence tested it himself on a steel table or drum, receiving no shock from its operation, and then handed it to the husband saying "It didn't shock me; it's O.K.," no actionable negligence appears on the basis of a "failure to warn" of the danger of using the drill. A different result is not required because it appears that defendant knew that the drill had shocked three other people prior to the occasion of the lending, none of whom was injured.
2. We have found no case in the courts of this State, nor has any been called to our attention, dealing with the duty and responsibility of a bailor to the bailee in a gratuitous bailment situation relative to defects which may exist in the subject matter of the bailment.
*212 But we think the rule is well stated in 8 AmJur2d 1043, Bailments, § 148: "Where a bailment is purely gratuitous, and created for the exclusive benefit of the bailee, as where articles are loaned to another simply for his own use, without any reward or compensation being received from him by the lender, the bailor's only duty in respect of defects is to inform the bailee of any of which he is aware and which might make the use of the subject of the loan perilous to the bailee or to his servants. The ground of this obligation is that when a person lends he ought to confer a benefit, and not do a mischief. But the obligation of a mere lender goes no further than this, and he cannot therefore be made liable for not communicating anything which he did not in fact know, whether he ought to have known it or not."
The same principle is found in the rule that the owner or host is under no duty to inspect or to warn a guest who is about to ride in his automobile except as to those defects about which he knows and which expose the guest to an unreasonable risk of harm. Lee v. Lott, 50 Ga. App. 39, 48 (177 S.E. 92); Sheffield v. Studor, 50 Ga. App. 429 (178 S.E. 409). It seems obvious that in this respect the duty and responsibility of the bailor in a gratuitous bailment to the bailee and that of the host to the guest are the same. This defendant, having warned of the only defect about which he knew, fulfilled his duty.
3. That the husband may have suffered a fatal shock from his use of the drill a short while after borrowing it from defendant was not a foreseeable event in the light of defendant's action in changing the connection plug and making a personal test of the drill before lending it. Daneker v. Megrue, 114 Ga. App. 312 (151 SE2d 157); Moses v. Chapman, 113 Ga. App. 845 (1) (149 SE2d 850).
4. It was error to deny defendant's motion for summary judgment.
Judgment reversed. Felton, C. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351185/ | 250 S.C. 178 (1967)
156 S.E.2d 865
C. P. WREN, Respondent,
v.
KIRKLAND DISTRIBUTING COMPANY, Inc., Appellant.
18700
Supreme Court of South Carolina.
September 7, 1967.
J. Donald Scott, Esq., for Columbia, for Appellant.
*179 Messrs. Smith & Rawls, of Lexington, and Robinson, McFadden & Moore, of Columbia, for Respondent.
*180 September 7, 1967.
LITTLEJOHN, Justice.
On or about January 24, 1964, as a result of an advertisement placed in "The Georgia Market Bulletin" by the respondent, a farmer who lived in Georgia, the appellant agreed to purchase and the respondent agreed to sell 1200 one-hundred-pound bags of millet for an agreed price of $6.00 per bag, or a total of $7,200.00. It was agreed that the appellant was to pick up the sacks of millet in Wren, Georgia, within thirty days.
The appellant paid $1,000.00 to the respondent, to be held and applied to the final delivery. The appellant sent a truck to Georgia and obtained 120 sacks early in March, 1964, and paid $720.00 by check therefor. On March 19, 1964, appellant picked up 250 sacks and left a check for $1,500.00 in payment for the same.
Later appellant stopped payment on the check, made certain deductions, took credit for the $1,000.00 deposit and sent the respondent a check representing what the appellant conceived to be the difference, and thereby abandoned the contract and sent for no more seed. A total of $2,136.00 was paid.
Respondent brings this action to collect $5,000.00 alleged to be due by reason of a breach of contract to purchase the millet seed. Kirkland, answering the complaint, admits the contract and interposes a general denial of liability, alleging that the respondent breached the contract by failing to properly sack and properly tag the bags in which the seed was sold. Appellant further answers by setting forth a counterclaim, praying for $3,000.00 and alleging damages as a result of respondent's refusing to ship the balance of the seed due as contracted for.
*181 The trial judge directed a verdict against the appellant on the counterclaim and submitted the issues raised by the complaint and the general denial in the answer to the jury, which awarded a five-thousand-dollar verdict.
Counsel for appellant moved before the presiding judge for a new trial on the grounds that the trial judge refused to charge Section 1571 of Title 7 of the United States Code, and Section 3 of the Rules and Regulations of the Georgia Department of Agriculture; the motion was denied.
The case is now before this court on four exceptions. The first exception alleges error "in not ordering a new trial on the grounds that the trial Judge directed a verdict for the Respondent on Appellant's counterclaim, striking said counterclaim from consideration by the jury, when there was introduced sufficient unimpeached testimony to warrant consideration of the counterclaim to the jury."
Counsel for respondent attacked this exception on the ground that the same is "too general, vague and indefinite to be considered by this Court, because the exception contains no issue of fact upon which the counterclaim should have been submitted to the jury," as required by Supreme Court Rule 4, Section 6. We are of the opinion that the position of respondent's counsel on this point should be sustained. The numerous cases cited in the annotation of the Supreme Court rules under this Rule and Section sustain this position. See Solley v. Weaver, 247 S.C. 129, 146 S.E. (2d) 164.
Exceptions 2 and 3 allege error on the part of the trial judge in refusing to charge Section 1571 of Title 7 of the United States Code, and in refusing to charge Section 3 of the Rules and Regulations of the Georgia Department of Agriculture.
The transcript of record shows that counsel handed up to the judge some requests to charge, which were refused, but the contents of the requests to charge do not appear in the record and, accordingly, the same cannot *182 be reviewed by this court. Romanus v. Biggs, 214 S.C. 145, 51 S.E. (2d) 503. At no time was the court asked to take judicial notice of either the United States statute or the Georgia rule, and reference to the secton and rule first appeared, and then by number only, in the motion for a new trial and in the exceptions.
The fourth exception alleges error on the part of the trial judge in "not ordering a new trial on the ground that the trial judge erred in charging to the jury that it was not necessary under Georgia law for a farmer to affix to containers of seed the results of germination and purity tests, after the trial judge had refused to charge the jury the applicable law as requested by the Appellant."
Reference to the record will show that the motion for a new trial did not include this ground; and since this issue was not made before the trial judge, we cannot say that he erred by failing to grant the motion.
Let the judgment of the lower court be
Affirmed.
MOSS, C.J., and LEWIS, J., concur.
BUSSEY and BRAILSFORD, JJ., concur in result.
BRAILSFORD, Justice (concurring).
I agree that the judgment appealed from should be affirmed. However, the opinion of Justice Littlejohn seems to overrule Exceptions 2 and 3 upon the ground that the record fails to show that either Section 1571, Title 7, U.S.C.A. or Section 3 of the Rules and Regulations of the Georgia Department of Agriculture was invoked by the defendant at the trial. In my judgment, the statement of the case sufficiently identifies this statute and regulation as the subject matter of the requests to charge which were refused by the court.
I would overrule Exception 2 on the ground that the statute, which the court refused to charge, imposed no duty upon Wren. The statute applies only to one who transports *183 or delivers for transportation in interstate commerce any agricultural seed. Wren's delivery of seed to Kirkland in Georgia was not for transportation to South Carolina. Instead, the delivery was in partial execution of the Georgia contract of sale between the parties. After delivery, Wren had no interest in what disposition should be made of the seed by Kirkland.
I would overrule Exception 3 upon the ground that the defendant failed to either plead or prove the regulation which the court refused to charge. Hence, it was not entitled to the requested instruction.
While I do not dissent from the proposition that Exception 1 is so vague and indefinite that defendant is not entitled to have it considered by this court, I would prefer to overrule the exception on the merits. This can soundly be done by pointing out that the record is barren of evidence tending to establish that defendant sustained any damage as alleged in the counterclaim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2502726/ | 721 S.E.2d 409 (2012)
STATE
v.
GOLDSTON.
No. COA11-636.
Court of Appeals of North Carolina.
Filed January 17, 2012.
Case Reported Without Published Opinion
No Error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632609/ | 103 P.3d 1169 (2004)
196 Or. App. 640
PREMIER WEST BANK, Respondent,
v.
GSA WHOLESALE, LLC; Gary A. Speaks, individually; Claudette Speaks, individually; and Industrial Finance Company, Defendants below, and
Christopher Speaks, individually, and dba CSA, Appellant.
02-1038-E3; A122917.
Court of Appeals of Oregon.
Argued and Submitted September 8, 2004.
Decided December 29, 2004.
*1170 G. Jefferson Campbell, Jr., Medford, argued the cause and filed the briefs for appellant.
Ryan J. Vanderhoof, Medford, argued the cause for respondent. With him on the brief was Hornecker, Cowling, Hassen & Heysell, L.L.P.
*1171 Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARNOLD, Judge pro tempore.
BREWER, C.J.
In this appeal from an order for sheriff's sale of a residence, we are called on to determine whether ORS 18.536 authorizes a judgment creditor to execute against residential property that the judgment debtor conveyed to a third party after the judgment was entered in the judgment register.[1] Defendant, the grantee of the judgment debtor's residence, assigns error to the trial court's order for the sale of the property. Alternatively, he assigns error to the court's failure to include in the order findings as to whether the property is subject to the homestead exemption provided in ORS 18.395.[2] We review for errors of law, Lincoln Loan Co. v. City of Portland, 317 Or. 192, 199, 855 P.2d 151 (1993), and conclude that the trial court had authority to order the sale. However, because the order did not include the required findings regarding the homestead exemption, we vacate the order and remand for further proceedings.
In the underlying proceeding, plaintiff obtained a judgment against defendant's father for almost $500,000 in December 2002.[3] By operation of former ORS 18.350 (2001), repealed by Oregon Laws 2003, chapter 576, section 580,[4] that judgment became a lien in plaintiff's favor against all real property that defendant's father owned in Jackson County, where the judgment was entered in the court register. In February 2003, defendant's father conveyed his residence to defendant. Defendant paid his father no consideration for the conveyance, but he assumed the mortgage on the property. In May 2003, plaintiff filed a petition under ORS 18.536[5] for an order authorizing the Jackson *1172 County sheriff to sell the residence to satisfy the judgment. Pursuant to ORS 18.536(3), the petition included the following allegations:
"D. It is believed that the property is not the homestead of the debtor as it was conveyed to [defendant] post-judgment for no consideration. A title report showing priority of [the] judgment over [defendant's] interest is attached hereto;
"E. Even though the property is a homestead, the property may nevertheless be sold on execution since the judgment sought to be satisfied is in excess of $3,000. It is contended that [defendant] has no homestead exemption since the judgment lien attached to the realty prior to his receipt of any interest in the property and because the judgment debtor is not the purported record owner of the realty."
The trial court notified defendant that it would hold a hearing before deciding whether to issue an order authorizing the sale. The notice stated, in part:
"This is to notify you that [plaintiff's attorney] has asked the court to order the Sheriff to sell your property * * * to satisfy a court judgment that attached as a lien against your property prior to you obtaining any interest therein.
"* * * * *
"The law provides that your property is your homestead if you, or your spouse, dependent parent or dependent child, actually live in it as your home. If you are temporarily absent from the property but intend to move back in, it is still your homestead.
"The law provides that if the property is your homestead, then $33,000 of its value may not be taken to satisfy a judgment against you. In addition, a homestead usually may not be sold to satisfy a judgment for $3,000 or less. However, since you are not the judgment debtor, the moving party, [plaintiff], contends that you have no homestead rights in the realty."
At the hearing, defendant argued that, because his father, the judgment debtor, no longer owned the property, the court could not order the sale under ORS 18.536. He contended that a judgment creditor must file a separate fraudulent transfer action or initiate a creditor's bill proceeding to reach real property that the judgment debtor has sold to a third party after a judgment lien has attached to the property. The court rejected defendant's argument and granted plaintiff's petition.[6] The order that the court entered does not state whether the homestead exemption applies or whether the court made any findings with respect to the exemption.
On appeal, defendant asserts that, when the lien created by the judgment against his father became effective, the property was subject to the homestead exemption and that the lien attached only to the portion of the property not subject to the exemption. Therefore, in defendant's view, he took the exempt portion of the property free of the lien. He contends, thus, that the court could not order a sale on execution of the judgment lien without determining whether the exemption applied and, ultimately, whether there is any "leviable interest" in the property that plaintiff can reach by execution.[7] The crux *1173 of defendant's argument is that there is no statutory procedure by which a court can make that determination in the action in which the judgment was entered if a third party owns the property at the time of execution.
In support of that argument, defendant relies on Clawson v. Anderson, 248 Or. 347, 434 P.2d 462 (1967). In that case, a judgment was entered against Hendricks, a property owner, in 1956. Hendricks filed notice that he claimed a homestead exemption in his residence.[8] The following year, he conveyed the residence to a third party, who in turn sold it to the defendants. Id. at 349, 434 P.2d 462. In 1964, the judgment creditor obtained a writ of execution,[9] and the sheriff sold the property to the plaintiff. The defendants claimed that they retained ownership of the property to the extent of the amount of the homestead exemption. The plaintiff claimed ownership of the entire property, arguing that, before conveying it in 1957, Hendricks had abandoned the homestead, thereby waiving the exemption. Id. at 349-50, 434 P.2d 462.
The Supreme Court rejected the plaintiff's abandonment argument, holding that the homestead exemption remained in effect and that the defendants retained ownership of the portion of the property covered by the exemption. The court stated that a judgment lien attaches only to the quantity and value of property that exceeds the homestead allowance.[10] It stated further:
"A question is presented as to the methods which are available to the creditor for reaching the excess. When the homestead property is held by the homestead claimant, ORS 23.270 provides the procedure for determining and separating the excess in value or quantity from the maximum exemption allowed under ORS 23.250. However, there is no statutory provision establishing the procedure for a determination and separation of the excess when the land is in the hands of the grantee of the homestead claimant."
Id. at 350-51, 434 P.2d 462 (footnotes omitted). The court held that, although the legislature had failed to provide the necessary procedure, it had not intended "to deny the lien creditor the right to reach the excess over the homestead claim once the property had been conveyed to the homestead claimant's grantee." Id. at 351, 434 P.2d 462. The court stated, however, that
"[t]he creditor has no right whatsoever in the land unless there is an excess over and above the homestead exemption, and if there is no excess, there is nothing upon which to levy execution and nothing which can pass to a purchaser at the execution sale. It follows, therefore, that before there is an effective levy of execution, the question of whether an excess is available for levy must be resolved by some kind of a proceeding in which that issue can be raised.
"A proceeding initiated by way of a creditor's bill would seem to be the most appropriate. It would be necessary for the plaintiff to allege in the creditor's bill that an excess existed and the defendant could join issue in his answer. Evidence could then be introduced to establish the value of the property and if it were shown that there was an excess, plaintiff could levy upon it."
Id. at 351-52, 434 P.2d 462 (footnotes omitted). Because there had been no judicial *1174 determination that an excess existed, the court held that the execution sale was void and that title had not passed to the plaintiff. Id. at 352-53, 434 P.2d 462.
Defendant relies on Clawson for the proposition that there is no statutory means by which a judgment creditor can execute against a homestead sold by the judgment debtor after the judgment was entered. He argues that plaintiff must file either a fraudulent conveyance action or a creditor's bill so that he "can be provided due process and an opportunity to defend against [plaintiff's] contention that there is a `leviable interest' in the property." Plaintiff responds that, when the legislature enacted ORS 18.536 in 1981, it corrected the omission noted in Clawson by providing such a means for determining the extent of the leviable interest: ORS 18.536(9) provides, "If the court authorizes the sheriff to sell the property, the order of the court shall state whether the homestead exemption applies to the property, and if so, the amount of the exemption."
We reject at the outset defendant's contention that plaintiff must file a fraudulent conveyance action or a creditor's bill because there is no statutory means by which to determine in the underlying action whether a leviable interest exists in property that the judgment debtor conveyed to a third party after the judgment was entered. After Clawson was decided, the legislature took several steps to correct the problem that the court had noted. First, in 1977, the legislature amended what is now ORS 18.322. Before that amendment, the statute provided that "[t]he judgment debtor's claim of exemption under ORS [18.345 or ORS 18.428] shall, upon application of either plaintiff or judgment debtor, be adjudicated in a summary manner in the court out of which the execution issued * * *." ORS 18.345 and ORS 18.428 provide exemptions for certain items of personal property and for residential mobile homes. Thus, before 1977, ORS 18.322 did not provide for adjudication of exemption claims for real property and therefore was inapposite in Clawson. In 1977, the legislature deleted the references to ORS 18.345 and ORS 18.428, thereby making ORS 18.322 applicable to all exemption claims. Or. Laws 1977, ch. 623, § 5.
Furthermore, in 1981, the legislature enacted House Bill 2677, which significantly changed the execution procedures applicable to residential real property. Or. Laws 1981, ch. 840. Section 13 of the bill repealed ORS 23.270, the statute providing for determination of homestead exemption claims and requiring that judgment debtors affirmatively claim the exemption in order for it to be effective. In its place, the legislature enacted what is now ORS 18.536. Or. Laws 1981, ch. 840, § 2. The bill also amended what is now ORS 18.395(1) by adding the following sentence: "The [homestead] exemption shall be effective without the necessity of a claim thereof by the judgment debtor." Or. Laws 1981, ch. 840, § 5. Section 4 of the bill amended ORS 18.322 to state, "Except as provided in ORS [18.536], the judgment debtor's claim of exemption shall, upon application of either plaintiff or judgment debtor, be adjudicated in a summary manner at a hearing in the court out of which the execution issued." (Emphasis added.)
Thus, ORS 18.322 provides that, except for those claims governed by ORS 18.536, all claims of exemption are to be adjudicated at a hearing under ORS 18.322, which can be instituted "upon application of [the] plaintiff." Although each of the pertinent statutes has been amended a number of times since 1981, for present purposes they remain materially identical. Accordingly, there can be no doubt that the legislature has provided a statutory method for determining, in the action in which the underlying judgment was entered, whether a leviable interest exists in real property that the judgment debtor conveyed to a third party after the judgment was entered. The only question is whether ORS 18.536 applies here. We turn to the parties' arguments addressing that issue.
As noted, defendant contends that ORS 18.536 applies only to property that is still owned by the judgment debtor at the time of execution. Plaintiff asserts that the statute is not so limited, citing ORS 18.536(3), which provides, in part, that "[t]he holder of a judgment desiring to have the residential real property * * * of a natural person sold *1175 on execution may petition the court for an order authorizing the sheriff to sell." The parties' arguments center on the meaning of the term "natural person." Plaintiff contends that the term means any human being, whether the judgment debtor or not. In reply, defendant notes that other subsections of ORS 18.536 refer to "the judgment debtor," which, he contends, indicates that the statute applies only to judgment debtors and their property; defendant argues that the legislature used the term "natural person" within that context to distinguish between human and corporate judgment debtors.
The parties' arguments present an issue of statutory construction. To determine the legislature's intent in enacting ORS 18.536, we look to the text of the statute in context and, if necessary, to legislative history and other interpretive aids. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). The best evidence of the legislature's intent is the text itself. Id. at 610, 859 P.2d 1143. A statute's context includes prior enacted versions of the statute, City of Salem v. Salisbury, 168 Or.App. 14, 25, 5 P.3d 1131 (2000), rev. den., 331 Or. 633, 19 P.3d 357 (2001), and the preexisting common law and statutory framework within which the law was enacted, Tyree Oil, Inc. v. BOLI, 168 Or.App. 278, 282, 7 P.3d 571 (2000).
Although neither ORS chapter 18 nor former ORS chapter 23 defines "natural person," the term has a well-defined meaning, and the parties agree that defendant is a natural person. See Webster's Third New Int'l Dictionary 1507 (unabridged ed. 2002) (defining "natural person" as "a human being as distinguished in law from an artificial or juristic person"). In view of that meaning, the use of the term in ORS 18.536(2) and (3) indicates that the legislature intended to authorize the sale of residential real property belonging to any natural person, not merely that owned by a judgment debtor. See PGE, 317 Or. at 611, 859 P.2d 1143 ("[W]ords of common usage typically should be given their plain, natural, and ordinary meaning."). Defendant's proposed construction would require that the term be read as "natural person who is a judgment debtor." See ORS 174.010 (admonishing courts "not to insert what has been omitted" when construing legislative enactments). Thus, the text of the statute supports plaintiff's proposed construction.
However, where the context in which a statutory term appears indicates qualifications or limitations on its ordinary meaning, to construe the term more broadly would be to insert what has been omitted from the substance of the statute. See Confederated Tribes (Siletz) v. Employment Dept., 165 Or.App. 65, 74, 995 P.2d 580 (2000) ("[W]e may not simply rely on the dictionary definition of a statutory term as conclusive proof of the legislature's intent."); id. at 74-77, 995 P.2d 580 (holding that context made it possible to read the term "elected public official" more narrowly than its plain meaning indicates, rendering the term ambiguous); see also State ex rel OHSU v. Haas, 325 Or. 492, 503, 942 P.2d 261 (1997) (concluding that context rendered the word "employee" ambiguous in spite of its ordinary meaning). With that caveat in mind, we turn to the context in which the term "natural person" appears to determine whether, as defendant urges, the legislature used the term to limit the class of judgment debtors to which ORS 18.536 applies.
ORS 18.536(5) provides that, upon the filing of a petition for the sale on execution of a residence, the court shall schedule a hearing, "allowing adequate time for notice to the judgment debtor * * *." Subsection (6) provides that "the petitioner shall cause [notice] to be served upon the judgment debtor * * *." Subsection (7) provides that the court shall try the issues and inquire as to the alleged facts, "[w]hether the judgment debtor appears at the hearing on the petition or not * * *." Subsection (8) prohibits the court from authorizing the sale if the court finds, among other things, that "the property is the homestead of the judgment debtor[.]" Defendant argues that those provisions indicate that the statute applies only to judgment debtors and their property and, thus, the term "natural person" merely distinguishes between corporate and human judgment debtors.
*1176 Defendant also relies on ORS 18.552, which was enacted as part of the same bill as ORS 18.536. Or. Laws 1981, ch. 840, §§ 2, 12. Like ORS 18.536, ORS 18.552 refers to "the sale on execution of the residential real property * * * of a natural person * * *." It provides that, after selling property on execution, the sheriff must give notice of the right to redeem. Subsection (2) requires that the notice "shall be in substantially the following form" and provides a sample notice, which states, in part, "Your property located at _______ has been sold. The property was sold on ______, 2____, to satisfy a court judgment against you." (Emphasis added.) Defendant argues that the word "you" in the sample notice demonstrates that the recipient of the notice the "natural person" who owned the residence is the judgment debtor.
Defendant's argument misses the point of the legislature's directive that the notice given "shall be in substantially the * * * form" of the sample notice. (Emphasis added.) Substituting the name of the judgment debtor for the word "you" when the judgment debtor no longer owns the property at the time of the execution sale would not substantially affect the form of the notice. Cf. ORS 18.536(6) (providing sample presale notice that informs the property owner that, among other things, the requested sale is "to satisfy a judgment against _______").
Moreover, another provision in ORS 18.552 actually undercuts defendant's argument. ORS 18.552(1)(b) provides that the sheriff shall send the notice "to the presale owner of the property * * *." Defendant argues that the legislature used the term "presale owner" to distinguish such persons from post-sale owners, that is, purchasers at an execution sale. He does not explain, however, why the legislature did not simply use the term "judgment debtor," which would have made the same distinction, if the legislature did not contemplate that the recipient might be someone other than the judgment debtor. Ordinarily, when the legislature has used different terms in related statutes, we infer that it intended different meanings. Due-Donohue v. Beal, 191 Or.App. 98, 100, 80 P.3d 529 (2003). Thus, the legislature's choice of terms indicates that the "presale owner" that is, the "natural person" who owned the property could be someone other than the judgment debtor.
ORS 18.536(6) also supports that conclusion. That statute requires the petitioner to serve notice of the presale hearing on the judgment debtor, but the prescribed notice is to convey, among other things, the following in "substantially the following form": "If you do not own this property, please give this notice and the papers served with it to the owner." ORS 18.536(6). Thus, ORS 18.536(6) indicates that the legislature contemplated that the judgment debtor the initial recipient of the notice might no longer own the property at the time of execution sale.
Other contextual provisions also support plaintiff's proposed construction. Former ORS 23.425(1) (1981), repealed by Or. Laws 2003, chapter 576, section 580, which also was enacted the same year as ORS 18.536, applied to property other than residential real property. It provided, "Following levy by the sheriff pursuant to [ORS 18.478], the sheriff shall promptly mail or deliver [notice] to each judgment debtor who is not a corporation at the last-known address of each such judgment debtor." (Emphasis added.) In addition, before the legislature enacted ORS 18.536, the presale notice provision was part of former ORS 23.450(2) (1979), renumbered as ORS 18.532 (2003).[11] That statute provided that "a noncorporate judgment debtor" was entitled to notice of the sale and of the right to claim the homestead exemption. Plainly, if the legislature intended to limit the procedure provided for in ORS 18.536 to judgment debtors, it knew how to do so explicitly. Because it did not, we infer that the legislature intended the term "natural person" in ORS 18.536 and ORS 18.552 to mean something other than "noncorporate judgment debtor." Due-Donohue, 191 Or.App. at 100, 80 P.3d 529.
*1177 In sum, the text and context of ORS 18.536 show that the statute applies when a judgment creditor seeks to execute against the residential real property or mobile home of any natural person, whether that person is the judgment debtor or not.[12] It follows that the trial court did not err in proceeding under that statute.
In his second assignment of error, defendant argues that the trial court erred by failing to state in its order whether the homestead exemption applied to the property and, if so, the amount of the exemption. Plaintiff does not dispute the merits of defendant's argument but contends that defendant failed to preserve the asserted error. In reply, defendant acknowledges that he did not raise the argument before the trial court issued the order authorizing the sale. He argues, however, that, because the wording of ORS 18.536(9) is mandatory, the court was required to apply the exemption whether he raised the issue or not. He also argues that, if he was required to preserve the issue, the asserted error is apparent on the face of the record.
We agree with defendant that, regardless whether he raised the issue, the trial court was required to include in its order findings regarding the homestead exemption. ORS 18.395(1) provides, "The [homestead] exemption shall be effective without the necessity of a claim thereof by the judgment debtor." ORS 18.536(9) provides, "If the court authorizes the sheriff to sell the property, the order of the court shall state whether the homestead exemption applies to the property, and if so, the amount of the exemption." (Emphasis added.) Given that those statutes require the trial court to determine whether the exemption applies to the property and to state its findings in the order whether the judgment debtor claims the exemption or not, it would be incongruous to require a homestead owner to raise the issue before the trial court to preserve it for appeal.
Moreover, plaintiff alleged in its petition that the exemption did not apply. Thus, the issue plainly was before the court. ORS 18.536(7) provides, in part, "Whether the judgment debtor appears at the hearing on the petition or not, the court shall try the issues * * * alleged in the petition." The record does not reflect that the court tried the issue, and the order authorizing the sale of defendant's residence does not include the required findings. It follows that the order is invalid. On remand, the trial court shall enter a new order stating whether the homestead exemption applies to the subject property and, if so, the amount of the exemption.
Order on plaintiff's petition for sheriff's sale vacated and remanded; otherwise affirmed.
NOTES
[1] The 2001 version of the Oregon Revised Statutes applies in this case. In 2003, many of the statutes governing execution of judgments were renumbered. Unless otherwise noted, we refer to the current numbering.
[2] ORS 18.395(1) provides, in part, that a homestead a residence occupied by the owner or the owner's spouse, parent, or child is exempt from sale on execution and from the lien of every judgment "to the amount in value of $25,000" and that the exemption is effective "without the necessity of a claim thereof by the judgment debtor."
[3] Christopher Speaks and his father, Gary Speaks, were both defendants in the underlying action. The judgment resulting in the lien against the property that is the subject of this appeal was entered against Gary only. See ORCP 67 B. However, Christopher is the sole appellant in this proceeding. In this opinion, we refer to Christopher Speaks as "defendant."
[4] Former ORS 18.350 provided, in part, that "from the time of docketing an original or renewed circuit court judgment * * *, such judgment shall be a lien upon all the real property of the judgment debtor within the county where the same is docketed * * *."
[5] ORS 18.536 provides the procedures by which judgment execution sales of residential real property are ordered. It provides, in part:
"(2) The sheriff may not sell the residential real property or the mobile home of a natural person on execution without an order of the court authorizing the sale.
"(3) The holder of a judgment desiring to have the residential real property or the mobile home of a natural person sold on execution may petition the court for an order authorizing the sheriff to sell. The petition must: " * * * * *
"(d) Allege whether the property is a homestead or not; and
"(e) If the property is a homestead, allege facts showing that it may nevertheless be sold on execution.
"* * * * *
"(5) Promptly upon the filing of a petition and affidavit as provided in subsections (3) and (4) of this section, the court shall schedule a hearing on the petition, allowing adequate time for notice to the judgment debtor at least 10 days prior to the hearing.
"(6) At least 10 days prior to the hearing on the petition, the petitioner shall cause to be served upon the judgment debtor, in the manner provided by ORCP 7 for service of summons, a true copy of the petition and affidavit and of a notice of the time and place of the hearing in substantially the following form: [There follows a sample notice, the pertinent portions of which are set out below.]
"(7) Whether the judgment debtor appears at the hearing on the petition or not, the court shall try the issues without formal pleadings and shall inquire as to the facts alleged in the petition. The judgment creditor shall have the burden of proof on all issues.
"(8) Except as provided in ORS 18.395(7) and 18.428(9), the court may not authorize the sheriff to sell the property if the court finds:
"(a) That the property is the homestead of the judgment debtor;
"(b) That the judgment is subject to the homestead exemption; and
"(c) That the amount of the judgment was $3,000 or less at the time of entry of the judgment.
"(9) If the court authorizes the sheriff to sell the property, the order of the court shall state whether the homestead exemption applies to the property, and if so, the amount of the exemption."
[6] We granted defendant's motion to stay enforcement of the order pending the outcome of this appeal.
[7] Defendant ultimately seeks to avoid the sale of the property. After filing this appeal, defendant filed notice of intent to discharge the judgment lien under ORS 18.412, subject to the outcome of this appeal. That statute provides that, if a judgment debtor conveys a homestead, the judgment debtor or the grantee can discharge the judgment lien by proving that no leviable interest exists in the property or by paying the value of any such interest. In his notice, defendant asserted that there is no leviable interest in the property because, together with the amount of the homestead exemption, the amount of the mortgage and other encumbrances that have priority over plaintiff's judgment lien exceed the fair market value of the property.
[8] Before 1981, the homestead exemption was not effective unless the judgment debtor filed a declaration that he or she claimed the exemption after the sheriff levied on the property pursuant to a writ of execution. Former ORS 23.270 (1979), repealed by Or. Laws 1981, ch. 840, § 13.
[9] Before the legislature enacted what is now ORS 18.536 in 1981, a judgment creditor was not required to obtain a court order before executing against residential property. A writ of execution, which is issued by the clerk of the court in which the judgment is docketed and by which a judgment creditor can reach all other manner of property, was sufficient. ORS 18.465(1); former ORS 23.050 (1979), repealed by Or. Laws 2003, ch. 576, § 580.
[10] Former ORS 23.240 (1963), renumbered as ORS 18.395 (2003), provided that a homestead was exempt both from sale on execution and from "the lien of every judgment" to the amount in value of the exemption, then $7,500. The statute was amended a number of times before the renumbering in 2003. Except for increases in the amount of the exemption, those amendments are not material here.
[11] In 1981, the notice provisions applying to sales of residential property were removed from former ORS 23.450 (1979) and made part of what is now ORS 18.536. Or. Laws 1981, ch. 840, §§ 2, 9.
[12] We recognize that the construction that we now adopt could lead to certain seemingly unreasonable results. For example, ORS 18.548(5) provides that, whenever real property has been sold on execution, "[i]f, after the satisfaction of the judgment, there are any proceeds of the sale remaining, the court administrator shall pay such proceeds to the judgment debtor * * *." See also ORS 18.478(6) (providing that the sheriff shall deliver to the judgment debtor any other remaining property or proceeds after the judgment is satisfied). It seems odd, to say the least, to prescribe payment to the judgment debtor of any property or proceeds remaining after the execution sale if the judgment debtor had previously conveyed his or her interest in the property to someone else. Furthermore, as defendant notes, ORS 18.536(5) and (6) provide that notice of the presale hearing is to be given to the judgment debtor, not to his or her grantee. Although those provisions could lead to unreasonable results, they do not render ORS 18.536 ambiguous. "[W]here a term has an unambiguous meaning, the fact that it could lead to an absurd result does not justify interpreting it to mean something else." Brundridge v. Board of Parole, 192 Or.App. 648, 656, 87 P.3d 703, rev. den., 337 Or. 327, 99 P.3d 290 (2004); see also State v. Vasquez-Rubio, 323 Or. 275, 283, 917 P.2d 494 (1996) ("When the legislative intent is clear from an inquiry into text and context * * *, it would be inappropriate to apply the absurd-result maxim."). Such apparent inconsistencies are best addressed by the legislature. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725915/ | 785 S.W.2d 157 (1990)
Elvis KELLEY, Appellant,
v.
The STATE of Texas, Appellee.
No. 009-90.
Court of Criminal Appeals of Texas, En Banc.
February 28, 1990.
Hal R. Ridley, Jerry B. Register, Huntsville, for appellant.
Frank Blazek, Dist. Atty., and Mary Klapperich, Asst. Dist. Atty., Huntsville, Robert Huttash, State's Atty., Austin, for State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
This case involves a purported appeal to the Court of Appeals by appellant after the trial court entered an order denying him bail under the provisions of Article I, Section 11a of the Texas Constitution. The Fourteenth Court of Appeals reversed the trial court and ordered the trial court's order of August 23, 1989, denying appellant bail set aside. Kelley v. State, 782 S.W.2d 537 (Tex.App.Houston [14th], 1989). From this the State's Prosecuting Attorney brings a petition for discretionary review. We will grant the petition and remand the cause to the Court of Appeals with instructions.
In Clapp v. State, 639 S.W.2d 949 (Tex. Cr.App.1982), we held that this Court is vested with exclusive jurisdiction of appeals from orders denying bail entered pursuant to Article I, Section 11a of the Texas Constitution. See and compare Primrose v. State, 725 S.W.2d 254 (Tex.Cr.App.1987).
It is obvious that the Court of Appeals acted in this case without jurisdiction. In fact, it had no option when faced with this situation other than to order the appeal dismissed due to that lack of jurisdiction.
Therefore, pursuant to Tex.R.App.Pro. Rule 202(k), the judgment of the Court of Appeals is vacated and the cause remanded to that court with instructions to dismiss the appeal for want of jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/897115/ | 653 N.W.2d 62 (2002)
2002 ND 174
Gary MELJIE, Claimant and Appellant,
v.
NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
No. 20020158.
Supreme Court of North Dakota.
November 5, 2002.
*64 Steven L. Latham, Wheeler Wolf, N.D., for claimant and appellant.
Shawnda Renee Reid, Special Assistant Attorney General, Bismarck, N.D., for appellee.
VANDE WALLE, Chief Justice.
[¶ 1] Gary Meljie appealed from a district court judgment upholding an order of the North Dakota Workers Compensation Bureau establishing Meljie's average weekly wage and awarding disability benefits. We hold the Bureau's computation of Meljie's disability benefits is in accordance with the law, and we affirm.
I
[¶ 2] Meljie injured his back and left foot on April 19, 1996 while employed with Gowan Rain Gutter, performing roof and siding applications. Meljie filed a claim for worker's compensation benefits. The Bureau ultimately accepted the claim and established Meljie's average weekly wage as $138 for calculating his disability benefits. Meljie appealed to the district court, claiming the Bureau did not calculate his benefits in accordance with the law. The district court entered an order upholding the Bureau's benefit determination and this appeal followed.
II
[¶ 3] On appeal, we review the Bureau's decision. Shiek v. N.D. Workers Comp. Bureau, 2002 ND 85, ¶ 10, 643 N.W.2d 721. We are required to 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, its decision is not in accordance with the law, or its decision violates the claimant's constitutional rights or deprives the claimant of a fair hearing. Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884; N.D.C.C. §§ 28-32-46 and 28-32-49. In determining whether the agency's findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Bruns v. N.D. Workers Comp. Bureau, 1999 ND 116, ¶ 7, 595 N.W.2d 298.
A. Wage Computation
[¶ 4] Meljie asserts the Bureau improperly established his average weekly wage, for purposes of determining his benefits, under N.D.C.C. § 65-01-02(5)[1], which provides:
5. "Average weekly wage" means the weekly wages the employee was receiving from all employments at the *65 date of first disability. 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:
a. For seasonal employment, one-fiftieth of the total wages from all occupations during the twelve months preceding the injury or during the tax year preceding the injury, or during the three tax years preceding the injury, whichever is highest and for which accurate, reliable, and complete records are readily available.
b. The "average weekly wage" of a self-employed employee is determined by the following formula: net profits based on preceding tax year or preceding fifty-two weeks whichever is higher if accurate, reliable, and complete records for those fifty-two weeks are readily available, plus depreciation, meal and travel expenses, and any expenses chargeable to use of personal residence as allowed under the federal tax laws.
c. Hourly or daily rate multiplied by number of hours or days worked per seven-day week.
d. Monthly rate multiplied by twelve months and divided by fifty-two weeks.
e. Biweekly rate divided by two.
f. The usual wage paid other employees engaged in similar occupations.
g. A wage reasonably and fairly approximating the weekly wage lost by the claimant during the period of disability.
[¶ 5] To calculate Meljie's benefits under this statute, the Bureau applied subsection 5(a) for seasonal employment and, using Meljie's total wages in 1997 of $6,875.75, divided those wages by one-fiftieth, resulting in an average weekly wage (rounded to the nearest dollar) of $138.
[¶ 6] The claimant has the burden to prove the right to receive benefits from the worker's compensation fund. Blanchard v. N.D. Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485. Meljie provided the Bureau with very poor financial records of his earnings history, and he does not specifically object to the Bureau's use of his 1997 wages for computing his benefits, rather than using another year or combination of years of earnings history. However, Meljie claims the record does not support a finding that he is a seasonal worker, and he claims the Bureau, instead of computing his average weekly wage under subsection 5(a), should have used subsection 5(f), which is the usual wage paid other employees engaged in similar occupations or, alternatively, 5(g), which is a wage reasonably and fairly approximating the weekly wage lost by the claimant during the period of disability.
[¶ 7] Under the statute, seasonal employment "includes an occupation that has periods of forty-five consecutive days of not receiving wages." N.D.C.C. § 65-01-02(29). At the January 15, 1998 hearing, Meljie testified that for a living he does "[j]ust whatever I can. Mostly siding and roofing and carpentry." He testified he has worked for numerous companies and "[i]t's seasonal work, usually." He also testified that he usually did "spring to winter type of work." When asked if he was "off in the wintertime," Meljie responded, "[m]ostly." The hearing officer found that Meljie's work history "is that of a temporary, piecemeal, worker more akin to a seasonal employee." Consequently, the Bureau concluded it was appropriate to determine Meljie's average weekly wage *66 under subsection 5(a) for seasonal employment.
[¶ 8] We conclude it was proper for the Bureau, based upon Meljie's testimony, to infer that Meljie was engaged in seasonal employment, as defined under the statute. From Meljie's testimony, the Bureau could have inferred Meljie worked in occupations having "periods of forty-five consecutive days" wherein Meljie did not receive wages. That inference can be gleaned from Meljie's own testimony that he engaged in "seasonal work," that he was "mostly" off in the wintertime, and that his work for Gowan Rain Gutter was "more or less part time ... it was just piece work and we would agree on a price." Consequently, we conclude the Bureau's implicit finding that Meljie was a seasonal worker is supported by a preponderance of the evidence. We, therefore, further conclude it was appropriate for the Bureau to use subsection 5(a) in calculating Meljie's benefit entitlement.
[¶ 9] We also, however, agree with the district court that, assuming Meljie was not engaged in seasonal employment, the Bureau's computation of Meljie's average weekly wage was appropriate under the statute. Meljie claims the Bureau should have used subsection 5(f) to determine his average weekly wage by using the wage paid other employees engaged in similar occupations. However, the evidence shows that Meljie's work history was sporadic and involved individual piecework jobs in siding, roofing, carpentry, and repair work, making it difficult, if not impossible, for the Bureau to ascertain a "usual wage" paid by other employees engaged in "similar occupations." Meljie asserts, as an alternative, the Bureau should have computed his average weekly wage under subsection 5(g), using a wage reasonably and fairly approximating the weekly wage lost by Meljie due to his disability. The district court concluded that the Bureau's computation of Meljie's weekly wage, using one-fiftieth of Meljie's actual total wages in 1997, the year of Meljie's highest wages of the earnings history Meljie provided to the Bureau, constituted a wage "reasonably and fairly approximating" Meljie's lost wages from his disability.
[¶ 10] Under the circumstances, and with the sparse earnings data provided to the Bureau by Meljie, we conclude the Bureau's calculation of Meljie's average weekly wage under 5(a) resulted in a wage under 5(g) reasonably and fairly approximately Meljie's weekly lost wages from his disability. Having reviewed the evidence, we further conclude the Bureau's findings are supported by a preponderance of the evidence and the Bureau's calculation of Meljie's average weekly wage under N.D.C.C. § 65-01-02(5) is supported by its findings and is in accordance with the statute.
B. Minimum Benefit
[¶ 11] Alternatively, Meljie asserts the Bureau erred in refusing to pay him a minimum disability benefit under N.D.C.C. § 65-05-09 equal to sixty percent of the average weekly wage in the state. The statute[2] provides, in relevant part:
If an injury causes temporary total or permanent total disability, the fund shall pay to the disabled employee during that disability a weekly benefit equal to sixty-six and two-thirds percent of the gross weekly wage of the employee, subject to a minimum of sixty percent and *67 a maximum of one hundred percent of the average weekly wage in the state. If an employee is disabled due to an injury, that employee's benefits will be based upon the employee's wage and the bureau benefit rates in effect on the date of first disability.
....
2. The disability benefit or the combined disability benefit and dependency award may not exceed the weekly wage of the employee after deductions for social security and federal income tax.
[Emphasis added.]
[¶ 12] Meljie asserts that under this statute he is entitled to a benefit of at least sixty percent of the average weekly wage in the state, irrespective of the weekly wage he was receiving prior to his injury. He asserts the maximum benefit limitation under subsection 2, of one-hundred percent of the employee's net weekly wage, only applies when a claimant receives both a disability benefit and a dependency award. We disagree.
[¶ 13] The interpretation of a statute is a question of law fully reviewable by this Court. Svedberg v. N.D. Workers Comp. Bureau, 1999 ND 181, ¶ 8, 599 N.W.2d 323. The primary objective of statutory construction is to ascertain the intent of the legislature. Ash v. Traynor, 2000 ND 75, ¶ 6, 609 N.W.2d 96. In ascertaining legislative intent, we look first to the words used in the statute, giving them their ordinary, plain-language meaning. Id.
[¶ 14] Relevant to the issue in this case, we believe the statute is unambiguous. Under the clear language of the statute, the limitation under subsection 2 applies to a claimant receiving only a disability benefit and also applies to a claimant receiving both a disability benefit and a dependency award. The statute makes the benefit limitation under subsection 2 applicable to the disability benefit "or" to the combined disability benefit and dependency award, if the claimant receives both. The word "or" is defined as a function word "to indicate an alternative" and means "either" of alternative choices. Merriam-Webster Collegiate On Line Dictionary, www.m-w.com. We conclude, therefore, the maximum benefit limitation under subsection 2 applies to a claimant receiving only a disability benefit.
[¶ 15] We construe statutes as a whole to give each provision meaning and effect. Little v. Traynor, 1997 ND 128, ¶ 37, 565 N.W.2d 766. Statutes must be harmonized to give meaning to related provisions and are interpreted in context to give meaning and effect to every word, phrase, and sentence. Doyle ex rel. Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 10, 621 N.W.2d 353. Harmonizing all parts of the statute together, it provides that the fund shall pay a disabled employee a weekly benefit equal to two-thirds of the employee's gross weekly wage, subject to a minimum of sixty-percent of the state's average weekly wage, but not to exceed one-hundred percent of the employee's preinjury net weekly wage, after deducting social security and federal income tax.
[¶ 16] The treatise, 5 Larson's Workers' Compensation Law § 93.04[5], at 93-75 (2002), notes that in applying a minimum benefit "there is also a proviso, something like `employee's actual average wage if less.' If this proviso has been omitted, as it has in some states, the danger of benefits exceeding actual wage is obvious, particularly as to part-time employment and as to partial disability." Our legislature has enacted a proviso to avoid the danger of benefits exceeding actual wages. Thus, under the clear wording of the statute, Meljie is entitled to receive from the *68 fund a weekly benefit equal to two-thirds of his gross weekly wage. However, if that amount is less than sixty percent of the average weekly wage in the state, then Meljie is entitled to a larger benefit, but his benefit cannot exceed, under subsection 2, one-hundred percent of his preinjury net weekly wage, after deducting social security and federal income tax. The Bureau has completed the calculation. As determined under N.D.C.C. § 65-01-02(5), Meljie's average weekly wage is $138. Two-thirds of that wage is a gross weekly wage of $92. For the period used in the calculation, one-hundred percent of the average weekly wage in the state was $417 and sixty percent of the average weekly wage in the state was, therefore, $250. According to the Bureau, and apparently not disputed by Meljie, Meljie's net weekly wage, after deducting social security and federal income tax, is $122. Applying the statute to these figures, Meljie is entitled to a maximum benefit equal to one-hundred percent of his net weekly wage of $122 per week.
[¶ 17] When, as in this case, two-thirds of the claimant's weekly wage is less than sixty percent of the state weekly wage, the benefit is increased up to sixty percent of the state weekly wage, but not to exceed one-hundred percent of the claimant's preinjury average net weekly wage. This interpretation harmonizes the benefit provisions of the statute with the limitation provided under subsection 2 so that all parts of the statute are given meaning and effect. The objective accomplished by the clear and unambiguous wording of the statute is to provide the worker with a fair benefit, but not a windfall benefit. If two-thirds of the claimants' average weekly wage is less than sixty percent of the state's average weekly wage, the claimant will receive an increased benefit, but the claimant cannot receive more than one-hundred percent of his preinjury net weekly wage.
III
[¶ 18] In accordance with this opinion, we conclude the Bureau's findings are supported by a preponderance of the evidence, the Bureau's conclusions are supported by its findings, and the Bureau's calculation of Meljie's benefit is in accordance with the law. We, therefore, affirm the judgment of the district court, upholding the Bureau's decision.
[¶ 19] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.
NOTES
[1] Meljie does not dispute the Bureau's use of the 1997 version of the worker's compensation statutes in this case.
[2] Here too, the Bureau has applied, without objection by Meljie, the 1997 version of the statute. | 01-03-2023 | 06-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351335/ | 116 Ga. App. 15 (1967)
156 S.E.2d 100
STEPHENS
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY et al.
42684.
Court of Appeals of Georgia.
Argued April 4, 1967.
Decided May 30, 1967.
Rehearing Denied June 14, 1967.
*17 Mitchell & Mitchell, Warren N. Coppedge, Jr., for appellant.
Woodruff, Savell, Lane & Williams, John M. Williams, for appellees.
PANNELL, Judge.
1. The evidence was uncontradicted that the claimant, who worked regular hours during week days and was off at night and Sundays, was on call during his off hours, and was therefore in the course of his employment while driving to work to repair a truck in answer to a request of the manager of one of two truck stops operated by the employer. See Lewis Wood Preserving Co. v. Jones, 110 Ga. App. 689 (140 SE2d 113); Hartford Acc. &c. Co. v. Souther, 110 Ga. App. 84 (137 SE2d 705); Hardware Mut. Cas. Co. v. Mullis, 75 Ga. App. 233 (43 SE2d 122); Aetna Cas. &c. *16 Co. v. Jones, 82 Ga. App. 422 (61 SE2d 293); New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (118 SE 786); Globe Indem. Co. v. MacKendree, 39 Ga. App. 58 (146 SE 46). That the claimant was using an automobile belonging to the employer without the express permission of the employer, would therefore be immaterial, it not appearing that in so doing he was violating any rules or instructions of his employment. The evidence therefore demanded a finding that the claimant, injured in a wreck of the automobile being so used on the way to work, was in the course of his employment; and the finding of the director approved by the full board that the claimant "was not in the course of employment for employer because he was in no condition to work because of claimant's inebriation" was not authorized.
2. The finding of fact by the director, adopted by the full board, that at the time of the accident claimant "was traveling about 60 or 65 miles per hour after dark [the speed limit was 50 miles per hour] when the lights ceased to function and the wreck of employer's car occurred, causing his injury, when he was answering a call to work on a truck" prevents the application of the rule that where the accident resulting in the injury is proximately caused by claimant's intoxication the accidental injury does not arise out of the employment, although occurring during the course of the employment (see Code § 114-105; Parks v. Maryland Cas. Co., 69 Ga. App. 720 (26 SE2d 562); General Acc. Fire &c. Assur. Corp. v. Prescott, 80 Ga. App. 421 (56 SE2d 137); Shiplett v. Moran, 58 Ga. App. 854 (200 SE 449)), and especially where there is no finding that the accident and resulting injury was in any way attributable to the claimant's alleged intoxication.
3. It follows that the ruling of the director, approved by the full board, and by the superior court on appeal "that the claimant failed to carry the burden of showing with competent, creditable evidence that he sustained a disabling injury to himself arising out of and in the course of his employment" was unauthorized and the judge of the superior court erred in affirming the same.
Judgment reversed. Bell, P. J., and Jordan, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351417/ | 116 Ga. App. 37 (1967)
156 S.E.2d 659
SHELTON
v.
ROSE, by Next Friend.
42776.
Court of Appeals of Georgia.
Argued May 4, 1967.
Decided June 20, 1967.
*38 Pittman & Kinney, H. E. Kinney, for appellant.
Kelly, Champion & Henson, Kenneth M. Henson, John W. Denney, J. Norman Pease, Ray L. Allison, for appellee.
DEEN, Judge.
1. The "equal rights clause" of the law of the road is of old standing and has frequently been expressed as follows: "A pedestrian and a person operating an automobile have each equal rights to use a public highway or street, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other." Jackson v. Crimer, 69 Ga. App. 18, 23 (24 SE2d 603). For similar statements see O'Dowd v. Newnham, 13 Ga. App. 220 (80 SE 36); Flowers v. Faughnan, 31 Ga. App. 364 (1) (120 SE 670); Claxton v. Hooks, 68 Ga. App. 383, 385 (23 SE2d 101); Eubanks v. Mullis, 51 Ga. App. 728, 730 (181 SE 604); Christian v. Smith, 78 Ga. App. 603, 607 (51 SE2d 857); Roseberry v. Freeman, 97 Ga. App. 545, 553 (103 SE2d 745). The proposition, as applied in Southland Butane Gas Co. v. Blackwell, 91 Ga. App. 277 (85 SE2d 542), to one lying on the roadway in an intoxicated condition, was reversed on certiorari, 211 Ga. 665 (88 SE2d 6) because of the Supreme Court's application of the assumption of risk doctrine to the facts of that case. That the assumption of risk doctrine may be applied to an adult unconscious because of intoxication but not to an infant legally incapable of negligence causes courts and juries *39 to reach opposite conclusions on what seem to be otherwise identical sets of facts when viewed from the defendant's standpoint. The instruction objected to in the enumeration of errors before us reads: "A pedestrian such as the child in this case has equal rights at the place complained of in this suit to be upon the street or highway with the operator of a motor vehicle." Should this statement be taken to mean that a child has a right to run into the street in front of a moving motor vehicle it would of course be incorrect; the equal rights referred to are rights as dictated by applicable traffic regulations, including those pertaining to right of way. However, immediately after the instruction excepted to, the court charged the doctrine of emergency in favor of the defendant, and immediately prior thereto was this preface: "I charge you that the law does not impose any duty on a person to guard against sudden, unforeseen acts of another which are not reasonably to be anticipated. The driver of an automobile is bound to use reasonable care to anticipate that persons along public streets or highways and other persons having equal rights with him may be there." Taken as a whole, the jury could not reasonably have been misled into believing that the court was telling them as a matter of fact that this particular child had an absolutely equal right to the intersection, or that the operator of a passing automobile would be the insurer of her safety. The instruction, while not well phrased, does not require reversal of the case.
2. "The violation of a penal statute is actionable negligence when the violation is the proximate cause of the injuries complained of, or where there is a proximate causal connection between the violation and the injury." Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 438 (99 SE2d 209). An instruction that the defendant would be liable if the jury found that his violation of a city ordinance was or in any way contributed to the proximate cause of the injury was not error under the facts of this case. In view of this and other instructions it was not error to fail explicitly to state the converse proposition: that if the defendant's negligence was not the proximate cause of injury, he would not be liable. As to the request set out in Ground 4 of the amended motion for new trial, the court covered the principle of law involved *40 by instructing the jury that, regardless of the age or capacity of the plaintiff, if they found no breach of legal duty on the part of the defendant there could be no recovery.
3. "Where the court gives in charge an entire Code section, a part of which is inapplicable to the issues, this is not a ground for reversal unless it appears that the inapplicable portion was calculated to mislead or erroneously affect the jury in its rendition of the verdict." Atlanta Metallic Casket Co. v. Hollingsworth, 104 Ga. App. 154 (2) (121 SE2d 388). The court read Code Ann. § 68-1658 to the jury, thus instructing them that every driver "shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child . . . upon a roadway." The objection is that the part relating to blowing a horn was error as there was no evidence as to whether the defendant did or did not blow his horn. A part of the Code section at least was applicable to the facts and the reading of the entire section is not reversible error.
4. The court's instructions included principles of law relating to the doctrine of emergency, pure accident, and avoidance of the negligence of another. Error is urged on the ground that these were not charged as requested. The third request was inapplicable to the facts; the others were charged in substance. Since the repeal of the provision of Code § 70-207 which required instructions to be given in the language requested (Ga. L. 1965, pp. 18, 39), it is sufficient if they are given in substance.
5. A State Patrolman, Connell, testified that he had been trained in accident investigations and has participated in tests made as to stopping distances and reaction times in another city, under normal conditions and fairly straight, level road surfaces, and he then stated the result of these tests and his opinion based thereon as to the relationship between speed and stopping distances. There were motions to rule out the testimony on the grounds that the witness had not qualified as an expert and that the collision involved was not on level ground but on a downhill grade. This witness and another one were asked their opinions as to the amount of variance which would be caused by grade *41 conditions. Rarely do standard tests exactly coincide with conditions developed on trial and the use of such testimony is largely within the discretion of the trial court. Rouse v. Fussell, 106 Ga. App. 259, 262 (126 SE2d 830). Proof that the opinion is founded on inadequate knowledge ordinarily goes to the credibility rather than the admissibility of the evidence. Central Container Corp. v. Westbrook, 105 Ga. App. 855 (4) (126 SE2d 264). This would be particularly true where the question at issue, such as the behavior of automobiles under stated conditions, is one as to which any person with knowledge of the subject matter may testify. It is here contended that the plaintiff failed to show how long the patrolman had been employed as such or how he participated in the tests, but this information could have been elicited on cross examination if it was felt desirable to do so. The testimony in the form given might well have been helpful to the jury in forming its own estimate of the speed of the car based on somewhat dissimilar facts, which had been called to its attention, and there was no error in its admission.
Judgment affirmed. Jordan, P. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351425/ | 116 Ga. App. 111 (1967)
156 S.E.2d 507
GLEAN, by Next Friend
v.
SMITH.
42640.
Court of Appeals of Georgia.
Argued March 8, 1967.
Decided April 5, 1967.
Rehearing Denied June 30, 1967.
*112 Long & Glean, M. A. Glean, Sr., William F. Braziel, for appellant.
Brannen, Clark & Hester, Perry Brannen, for appellee.
DEEN, Judge.
1. Where liability of a parent for the tort of a child is based on the parental relationship, the imputation of negligence must stem from an agency or master-and-servant relationship. Bell v. Adams, 111 Ga. App. 819 (1) (143 SE2d 413), holding that a parent was not liable where the 17-year-old son intentionally shot another with the father's rifle, which had been left in a place accessible to him, in the absence of allegations showing the parent should have foreseen that the son, if in possession of the weapon, would commit a criminal act.
2. Insofar as the petition alleges negligence on the part of the defendant in failing to supervise the play activities of an infant son too young to be capax doli, it is subject to the same defect that existed in Assurance Co. of America v. Bell, 108 Ga. App. 766, 775 (134 SE2d 540) where it was held: "The mere fact that the child escapes the supervision of a parent, and that the parent knows harm could result if he or she is not present, is not a sufficient allegation of actionable negligence. The true test is not the fact of escape. It is whether (a) a duty was raised against the parent by the facts of the case of anticipating that in the absence of his supervision a particular type of injury to another will result, and (b) whether he then exercised reasonable care to control and supervise the infant to prevent such result." See also Barlow v. Lord, 112 Ga. App. 352 (145 SE2d 272). The petition fails to include these essential allegations.
3. There can be no doubt but that a loaded pistol in the hands of a minor child too young to understand its nature is a dangerous instrumentality. Although the petition is loosely drawn and perhaps subject to special demurrer, as against a general demurrer the allegation that the defendant was negligent in placing an intrinsically dangerous instrumentality in the immediate vicinity of children of tender years is supported by allegations of fact that the pistol was in the drawer of a "child size bureau" in a "play room" in the defendant's home where he had infant children. The duty of the owner of land is to exercise *113 ordinary care in keeping the premises safe. "As to an infant . .. the owner of premises on which a dangerous thing exists may in legal duty be bound to use a greater quantum or precaution in behalf of such infant licensee than he would in behalf of an adult invited guest." Cook v. Southern R. Co., 53 Ga. App. 723, 727 (187 SE 274). The same situation as alleged here was held actionable in Kuhns v. Brugger, 390 Pa. 331, 346 (135 A2d 395): "The gist of the liability sought to be imposed is that Bach was negligent in permitting a highly dangerous instrumentality to be in a place where the incautious hands of a child might come in contact with it and the handling and discharge of this instrumentality by the child was the natural and probable consequence of Bach's negligence and such a consequence as might and ought to have been foreseen by Bach as likely to flow from his act. Bach's act in permitting this weapon, with its deadly potentialities, to remain in a place frequented by young children constituted negligence on his part; the intervention of his young grandchild did not break the chain of causation between his negligence and the injury which occurred and was a natural and probable result to be anticipated from the original negligence." See also Restatement, Law of Torts, § 308; also cases cited in 68 ALR2d 797, Ann. § 7, Negligence in Leaving Gun Accessible. The petition alleges that it was the custom for many months for the defendant's children and the infant plaintiff to visit in one another's homes; therefore, the defendant is assumed (in the absence of special demurrer calling for more particularity of pleading) to have been aware of their presence. This being so, he would have a duty to anticipate their presence in the play room, and to use ordinary care to avoid injuring them after their presence was known or reasonably should have been anticipated. Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643, 647 (49 SE2d 143). In Lee v. Georgia Forest Products Co., 44 Ga. App. 850, 852 (163 SE 267) a cause of action was held to have been set out against a landowner who left dynamite caps unguarded near a private way where they were found by a child who took them home where another child, playing with them, was injured. The opinion held: "The possible negligence consists in leaving such a dangerous instrumentality at *114 all exposed and unguarded for any length of time during which the defendant might have anticipated that persons such as the child who came upon them might be so attracted to them as to expose themselves or others to danger. It seems to be generally recognized, as a general principle of law, that one using or handling any instrumentality of an unusual or dangerous character is bound to take exceptional precautions to prevent injury thereby, and that children of tender years and youthful persons generally are entitled to a degree of care proportioned to their ability to foresee and avoid the perils that may be thus encountered." A like situation was presented in Mills v. Central of Ga. R. Co., 140 Ga. 181 (78 SE 816). In neither case was there any express conclusory allegation that the defendant, in leaving the dynamite caps in a place accessible to infant licensees, should have anticipated that they would injure themselves thereby but this is treated as a natural inference from the pleadings. Here, as there, the facts pleaded are sufficient to present a jury question. It is for the jury and not the court to determine whether these facts, if proved as alleged, amount to negligence under all the circumstances of the case.
The trial court erred in sustaining the general demurrer to the petition.
Judgment reversed. Frankum, P. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351427/ | 223 Ga. 523 (1967)
156 S.E.2d 345
DAVIS et al.
v.
CITY OF VALDOSTA.
24197.
Supreme Court of Georgia.
Submitted July 10, 1967.
Decided July 14, 1967.
Bennett, Moon & Davis, Alex Davis, for appellants.
Tillman, Brice, McTier & Coleman, Henry T. Brice, for appellee.
DUCKWORTH, Chief Justice.
This amended petition shows that the owner of a tract of land recorded a plat thereof in which it was subdivided into lots and streets and alleys. He conveyed the lots by deeds which referred to the plat. Thus is shown a common right of all the purchasers of the lots therein of user of the streets and alleys therein shown.
Two of such purchasers of lots seek to prevent the City of Valdosta from improving the alley on which their lots abut or passing over same and removing obstructions placed therein by them. The petition is completely silent as to the owners of other lots therein whether they have used the alley in question, *524 objected to the obstructions placed therein by these petitioners or requested the city to remove the obstructions for them. Undoubtedly other lot owners had an absolute right to remove obstructions in the alley by their own efforts or by others including the city. They also had the right to use or have used by their agents or servants the alley without obstruction. And the petition fails to show that all they complain of as against the city was not done at the direction, with the permission of, or for the convenience and use of other lot owners who had an undeniable title and interest in the alley for such purposes.
In this factual situation the decision in Tietjen v. Meldrim, 169 Ga. 678 (151 SE 349), becomes controlling. At page 697 that opinion reads: "When a grantor sells lots of land, and in his deeds describes them as bounded by streets, not expressly mentioned in the deeds, but shown upon a plat therein referred to as laid out in a subdivision of the grantor's land, he is estopped to deny the grantees' right to use the streets delineated in such plat. Ford v. Harris [95 Ga. 97, 22 SE 144]; Schreck v. Blun, 131 Ga. 489 (62 SE 705); Wimpey v. Smart, 137 Ga. 325 (73 SE 586); Gibson v. Gross, 143 Ga. 104 (84 SE 373). By parity of reasoning those claiming under such conveyances are estopped from denying the existence of the streets so delineated upon the plat of the subdivision and given as boundaries of lots acquired by these and others from the grantor or those claiming under him. All persons claiming under such grantor are forever estopped to deny their existence. 19 CJ 928 ( § 127)b." The petition is silent as to uses of the alley by other lot owners or their agents; also as to whether the city was acting as agent or at the request of the other lot owners. No grounds for relief are alleged, and it was not error to sustain the general demurrer and dismiss the petition.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351433/ | 250 S.C. 47 (1967)
156 S.E.2d 331
Dalton COUSAR, Daniel McBride and James Spears, Appellants,
v.
STATE of South Carolina et al., Respondents.
18686
Supreme Court of South Carolina.
August 2, 1967.
*48 Emmet H. Clair, Esq., of Columbia, for Appellants.
Messrs. Daniel R. McLeod, Attorney General, and Edward B. Latimer, and Carl R. Reasonover, Assistant Attorneys General, of Columbia, for Respondents.
*49 August 2, 1967.
BRAILSFORD, Justice.
On March 11, 1963, the appellants, Dalton Cousar, Daniel McBride and James Spears, and one Ralph Evans, were indicted for murder in Dillon County. Upon the return of the indictment by the grand jury, W.B. Hawkins and Norwood Gasque, Esquires, two able trial attorneys, experienced in both criminal and civil courts, were appointed to represent the defendants, and they entered pleas of not guilty. On the afternoon of the next day, the defendants changed their pleas to guilty and, pursuant to Act No. 864 of 1962, 52 Stat. 2155, Section 17-553.4, Code of 1962, (Cum. Supp.), were sentenced to imprisonment for life in the penitentiary. During 1965 petitions for writs of habeas corpus were filed by the appellants. The writs were duly issued and were dismissed after full hearings. Serving by appointment, Emmet H. Clair, Esquire, a member of the Richland County Bar, represented the petitioners in the habeas corpus proceedings and prosecutes this appeal in their behalf.
The first two grounds of appeal are so related that they may be considered together. It is contended that the court erred in failing to hold that the appellants were denied the effective assistance of counsel, and in failing to hold that their pleas were involuntary. Unquestionably, *50 the testimony of the three appellants at the habeas corpus hearing, if credited, would support the exceptions which pose these questions. However, their testimony is refuted by the transcript of the full and deliberate proceedings in open court which attended the acceptance of the guilty pleas. Mr. Hawkins and Mr. Gasque made full disclosures as to the discharge of their duties as appointed counsel, and they were carefully and explicitly interrogated by the court. The solicitor, Mr. Kilgore, stated what the evidence showed about the participation of each of the appellants, and of Evans, in the crime involved, i.e., the murder of an elderly Negro man in the course of a robbery. Each of the defendants was carefully questioned by the court and solemnly declared his guilt, expressed his desire to so plead, and attested that his decision was not the product of any improper influence.
The testimony of the appellants also stands discredited by the estimony at the habeas corpus hearing of Mr. Hawkins, Mr. Gasque and Mr. Kilgore, which dovetails with the trial transcript. On the entire record the court had no choice but to resolve the conflicts in the testimony against appellants.
Appellants further contend that the time between the appointment of counsel and the entry of the pleas was, per se, insufficient for adequate consideration and preparation of the case. We find no merit in this contention. The State's evidence was fully disclosed to experienced counsel, who carefully interviewed the four defendants, collectively and individually, over a period of two hours on two different days. The legal aspects of the case and the alternatives involved were carefully explained to the defendants. Further investigations were conducted by counsel. However, no defense became apparent to them, and the defendants did not request that the investigation be continued or that any other witness be interviewed. Instead, they admitted their guilt and sought counsel's assistance in obtaining the State's consent to a plea saving them from the jeopardy of *51 electrocution. When advised that the prosecution had assented to such a plea, they were ready, willing and anxious to so plead. They were not hurried into court. It was at their request that counsel arranged with the solicitor to dispose of the case on the second day of the term.
Finally, we are not even now advised that evidence favorable to the defendants existed which might have been discovered if counsel had pursued a different course. The appellants brought to the habeas corpus hearings only their own protestations of innocence and the discredited testimony of their co-defendant, Ralph Evans, that no scheme to rob existed, and that the elderly victim was killed by him in self-defense.
We find no merit in the last ground of appeal, which complains of error in accepting pleas of guilty in a capital case without having empaneled a jury. This procedure is authorized by Section 17-508, Code of 1962, and by Section 17-553.4 id. (Cum. Supp.), supra.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1228235/ | 571 P.2d 1266 (1977)
Emory J. CROFOOT, Appellant-Cross-Respondent,
v.
COLUMBIA-WILLAMETTE AIR POLLUTION AUTHORITY, Respondent-Cross-Appellant, and
City of Portland, County of Clackamas, County of Washington, County of Multnomah and County of Columbia, Respondents.
Court of Appeals of Oregon.
Argued and Submitted September 26, 1977.
Decided December 5, 1977.
*1267 Morton A. Winkel, Portland, argued the cause and filed the briefs for appellant-cross-respondent.
Thomas R. Williams, Deputy City Atty., Portland, argued the cause for respondent-cross-appellant Columbia-Willamette Air Pollution Authority and respondent City of Portland. With him on the briefs was Robert L. Hurtig, Acting City Atty., Portland.
Martin B. Vidgoff, Portland, argued the cause for County of Multnomah. On the brief were George M. Joseph, County Counsel, and Charles S. Evans, Chief Deputy County Counsel, Portland.
Keith J. Kinsman, Asst. County Counsel, Oregon City, filed the brief for respondent County of Clackamas.
No appearance for respondent County of Washington.
No appearance for respondent County of Columbia.
Before SCHWAB, C.J., and THORNTON and BUTTLER, JJ.
THORNTON, Judge.
This appeal involves an action by a former public employe for 14 weeks' severance pay, 30 days' penalty wages, and attorney fees. The defendants are the former employer, Columbia-Willamette Air Pollution Authority (CWAPA) and the five political subdivisions participating in CWAPA, namely, the City of Portland, Clackamas County, Columbia County, Multnomah County and Washington County.
The trial court held that plaintiff was entitled to four weeks' severance pay, 30 days' penalty wages, and attorney fees. Only CWAPA was held liable for the judgment.
*1268 Plaintiff assigns as error the trial court's determination that plaintiff was entitled only to four weeks' severance pay, and that CWAPA was solely liable for the judgment.
CWAPA has cross-appealed claiming that the trial court erred in finding that CWAPA was liable for penalty wages because it wilfully failed to pay plaintiff's severance pay when due.
Since this matter was tried to the court without a jury as an action at law we review the record to determine if the trial court's decision on severance pay is supported by substantial evidence. White v. Bello, 276 Or. 931, 933, 556 P.2d 1362 (1976).
CWAPA was formed on December 6, 1967, pursuant to ORS 468.500 to 468.580 (formerly ORS 449.850 to 449.923).[1] When active its function was to carry out air pollution control programs within the territories of its participating members. It is a corporate body separate from its participating members, although the members control the CWAPA board of directors. ORS 468.520. It has the right to sue and be sued, perpetual succession, and the right to acquire, hold and dispose of property. ORS 468.515.
Plaintiff, an attorney, was employed by the City of Portland (City) from October 1958 to June 30, 1969, when he became general counsel for CWAPA. He worked for CWAPA until June 30, 1973, at which time CWAPA's functions were assumed by the Department of Environmental Quality (DEQ) and plaintiff's employment was terminated.
Under the personnel policy of CWAPA an employe who is terminated is entitled to payment of accrued vacation and sick pay, and severance pay at the rate of one week of severance pay for each year of employment with the employer.
Plaintiff contends that his employment agreement with CWAPA stipulated that his tenure with the City would be combined with his tenure with CWAPA in calculating his employment benefits. Plaintiff did receive vacation and sick pay calculated on his combined years with the City and CWAPA, but CWAPA contends that it did not agree to calculate severance pay on the same basis.
Plaintiff's testimony as to his agreement with CWAPA was to the effect that the fringe benefits he was to receive from CWAPA would be equal to the benefits he had received from the City. He testified as follows:
"Mr. Crofoot: One of the conditions of employment was that I would be treated as a late transfer and that all the employment benefits that had accrued to me as a Deputy City Attorney would be carried at Columbia-Willamette Air Pollution Authority as if I had been employed there for all those same number of years. Those benefits were all transferred."
Plaintiff did receive vacation and sick pay benefits commensurate with his combined years with the City and CWAPA.
Plaintiff also testified that when the oral employment agreement with CWAPA was entered into with M. James Gleason, a Multnomah County Commissioner who was chairman of the CWAPA board of directors, severance pay was not mentioned. The discussion focused on salary and vacation and sick pay. There was also evidence that the City did not provide severance pay, and that CWAPA's personnel policy specified that severance pay would be calculated on the basis of an employe's years of service "with the employer."
We conclude that there was substantial evidence to support the trial court's decision that plaintiff was entitled to four weeks' severance pay for his four years of service with CWAPA.[2]
Plaintiff's second assignment of error challenges the trial court's finding that the *1269 participating public bodies were not liable for plaintiff's severance pay.
In support of his position plaintiff points to ORS 468.560(2) which permits dissolution of an air pollution authority and disposition of its assets after payment of all debts. While admitting that CWAPA has not been formally dissolved, plaintiff argues that the participating public bodies should be liable for the debt to the plaintiff since they permitted the acquisition of CWAPA's assets by the DEQ when the debt to plaintiff was still outstanding.[3] Plaintiff also contends that the defendants, upon the takeover of CWAPA, held the assets in trust for the authority's creditors.
Multnomah County contends that since CWAPA has not been dissolved, the plaintiff's remedy is to follow the assets and sue the DEQ. The county analogizes this case to the situation where one public body merges with another, and the merging agency assumes the liabilities of the merged agency.
Clackamas County argues that CWAPA properly disposed of its assets pursuant to ORS 468.515, and that if plaintiff has a remedy it is against the DEQ.
The defendants contend that the question of the participating members' liability for severance pay, penalty wages and attorney fees is a question of fact which would require us to merely ascertain whether the trial court's conclusion was supported by substantial evidence. We disagree. The facts relating to the disposition of assets are undisputed. The sole question for this court is whether as a matter of law liability will be imposed in this fact situation.
The record disclosed that the Environmental Quality Commission (EQC) ordered the DEQ to assume the functions of CWAPA on July 1, 1973. The EQC's action was taken pursuant to ORS 468.565 which permits EQC's takeover of the functions of a regional air pollution authority that has failed to establish an adequate air pollution program. The EQC directed the DEQ to implement the takeover and arrange for the transfer of CWAPA assets to DEQ. All of the defendants permitted the DEQ to assume control over CWAPA assets, and Multnomah, Washington and Clackamas Counties formally assigned their interest in the fixed assets of CWAPA to the DEQ.
The statutes governing air pollution authorities do not provide for the compulsory takeover of assets by the EQC when it assumes the functions of an active authority under the provisions of ORS 468.565. Any such disposition of assets would have to come from the voluntary acts of the authority or its participating members. The question in this case is whether upon cessation of authority functions the participating members may permit the acquisition of all authority assets prior to the payment of authority debts.
Where an air pollution authority formally dissolves, the legislature has provided that creditors are to be paid prior to distribution of the assets. ORS 468.560(2). The obvious intent is to protect the authority's creditors.
The policy of protecting creditors is no less compelling in the present situation where no formal dissolution has occurred, but CWAPA has ceased functioning entirely, and its assets have been disposed of to the detriment of its creditors, including the plaintiff. The defendants seem to argue that since the legislature did not require the payment of debts in this situation, it did not intend that they be paid by CWAPA's participating members. Defendants claim that the EQC should pay instead. We disagree. Since the EQC cannot compel the transfer of assets by CWAPA or its members, those members should be responsible for seeing that CWAPA's debts are paid before it is rendered insolvent.
*1270 The situation is comparable to the case where a corporation, while not actually dissolving, ceases functioning and disposes of its assets without paying its debts. Under the corporate trust doctrine, the assets are held in trust for creditors, and the directors who permit divestiture of the assets may be sued. Ballantyne on Corporations 732-33, § 318 (rev. ed. 1946).
In the instant case the defendants permitted the disposition of all CWAPA assets when the authority was no longer a functioning entity. They were under a duty to see that all debts were paid prior to such distribution, and are liable to plaintiff for their failure to do so.
Washington County contends that it terminated its involvement with CWAPA prior to the EQC takeover and should not be held liable for the claim of plaintiff.
Plaintiff argues that since the statutes do not provide for unilateral withdrawal of a participating public body Washington County's termination should be void and not bar recovery against it by plaintiff.
The statutes governing air pollution authorities do not specify how an agency may withdraw from CWAPA. ORS 468.560(2) is the only provision dealing with voluntary termination of an authority, and it only covers total dissolution.
Forming and joining an air pollution authority is voluntary, ORS 468.505, and we can perceive no reason to conclude that unilateral withdrawal may not be voluntary. However, we hold that voluntary withdrawal by a participating member does not preclude that member from being held at least partially liable for debts incurred while it was an active member of an authority.
On cross-appeal CWAPA contends that the trial court erred in finding that CWAPA wilfully failed to pay plaintiff's severance pay when due. The plaintiff was terminated on June 30, 1973. Shortly thereafter he wrote to the CWAPA board of directors and informed them that his severance pay could be delayed since he was still hoping to find employment in government whereby he could transfer his benefits to another agency. CWAPA did not make payment. On February 6, 1974, plaintiff wrote to the most recent chairman of CWAPA requesting that four weeks' severance pay be paid to him. When payment had not been received by July 5, 1974, plaintiff wrote again to the chairman requesting that the severance pay be paid within 14 days. The money was never paid.
The trial court found that the money was due on June 30, 1973, and that CWAPA's wilful failure to pay rendered it liable for 30 days' penalty wages under ORS 652.150.[4]
CWAPA contends that it should not be liable for the penalty because its action was not wilful for two reasons: (1) plaintiff waived immediate payment of the severance pay; and (2) CWAPA was financially unable to pay.
As to CWAPA's first contention, we see no reason why plaintiff's initial waiver of immediate payment in July 1973 should also be a waiver of CWAPA's duty to make immediate payment when plaintiff made his February 1974 demand for severance pay.
CWAPA's second argument has already been dealt with in part by our previous discussion as to the other defendants' liability. We have held that the City, Multnomah County, Washington County, Clackamas County and Columbia County are liable for plaintiff's severance pay claim because they permitted total disposition of the assets when a debt was still outstanding. Thus, CWAPA's financial situation in February *1271 was the result of the codefendants' actions.
CWAPA argues that even without the total distribution of its assets to DEQ, the assets were inadequate to satisfy plaintiff's claim for severance pay. The trial court apparently found the contrary to be true when it concluded that CWAPA had wilfully failed to pay. We have reviewed the audit of CWAPA's accounts and records prepared for the DEQ and other exhibits in the record, and conclude that there was substantial evidence to support the trial court's finding that CWAPA's failure to pay was wilful, thus entitling plaintiff to penalty wages.
The codefendants are liable for the penalty wages because, absent their consent to the distribution of assets, CWAPA would have had sufficient assets to meet plaintiff's claim.
Affirmed in part; reversed in part.
NOTES
[1] Washington County joined CWAPA on January 22, 1970, and withdrew on September 14, 1971.
[2] Plaintiff's contention that he was "transferred" to CWAPA is not dispositive of the case. The question before the trial court was concerned with the terms of plaintiff's agreement with CWAPA rather than how the City of Portland treated his departure.
[3] All parties agree that CWAPA, although not functioning, has not been dissolved as provided for by ORS 468.560(2), which states:
"Any regional authority may be dissolved by written consent of the governing bodies of all participating counties and cities. Upon dissolution, any assets remaining after payment of all debts shall be divided among the participating counties and cities in direct proportion to the total amount contributed by each. However, all rules, standards and orders of the regional authority shall continue in effect until superseded by action of the commission."
[4] ORS 652.150 provides:
"If an employer wilfully fails to pay any wages or compensation of any employe who is discharged or who quits his employment, as provided in ORS 652.140, then, as a penalty for such nonpayment, the wages or compensation of such employe shall continue from the due date thereof at the same rate until paid or until action therefor is commenced; provided, that in no case shall such wages or compensation continue for more than 30 days; and provided further, the employer may avoid liability for the penalty by showing his financial inability to pay the wages or compensation at the time they accrued." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351369/ | 802 P.2d 1189 (1990)
In re the MARRIAGE OF Vickie A. THOMASON, Appellee, and
Robert E. Thomason, Appellant.
No. 89CA1205.
Colorado Court of Appeals, Div. I.
November 23, 1990.
William J. Walsh, Lakewood, for appellee.
Wedgle & Shpall, P.C., Richard J. Wedgle, Murray Wilkening, Denver, for appellant.
Opinion by Judge PIERCE.
Robert E. Thomason, husband, appeals the order of the trial court amending the language of a Qualified Domestic Relations Order (QDRO). We reverse.
A separation agreement reached by the parties was approved by the court and incorporated in a decree of dissolution on April 28, 1989. Later, the district court approved a QDRO submitted by husband. Vickie A. Thomason, wife, filed an objection to that order and argued that certain *1190 additional language should have been included in the QDRO in order to prevent a significant tax liability to her. She asserted that the amendment was necessary to conform the QDRO to the intent of the parties that she felt was expressed in the separation agreement.
The trial court, without further comment, sustained wife's objection based on the language in paragraphs 15(a) and 16(a) of the separation agreement. As proposed by wife, it therefore added language to the QDRO that husband would reimburse or otherwise hold wife harmless from any income tax that she becomes liable for as a result of the transfer of the $87,500.
Husband contends that the result of this amendment was impermissibly to modify the agreement of the parties, contrary to the plain language of the separation agreement, and in the absence of the existence of conditions justifying the reopening of a judgment. We agree.
Paragraph 16(a) of the separation agreement, located in the section of the agreement dividing the marital property, provided that wife:
"shall be entitled to the sum of $87,500 which will be conveyed from the [husband's] Occidental savings plan. Said monies will be transferred through a [Q]ualified Domestic Relations Order ... said monies will be transferred to [wife] within ninety days ... wife shall be entitled to said funds and all other property listed in this paragraph as and for her own property absent any claim from the husband."
Paragraph 15(a), located within the section labeled "income tax matters," provided that all transfers of property set forth in the agreement were transfers of marital property in exchange for marital rights and considerations and that, therefore, the transfers were not a taxable event and resulted in no capital gains.
Interpretation of a written contract is a question of law for the court. Pepcol Manufacturing Co. v. Denver Union Corp., 687 P.2d 1310 (Colo.1984).
The intent of the parties to a contract is to be determined from the contract language itself, and extrinsic evidence of intent is relevant only if, after examination of the entire agreement, the terms are ambiguous. In re Marriage of Anderson, 711 P.2d 699 (Colo.App.1985). The sole fact that the parties disagree as to the meaning of the terms of a contract does not itself create an ambiguity. If a contract is unambiguous, it must be enforced in accordance with the expressed intention of the parties. Radiology Professional Corp. v. Trinidad Area Health Ass'n, 195 Colo. 253, 577 P.2d 748 (1978).
To determine if an ambiguity exists, the language of the agreement must be construed by application of the accepted meaning of the words with reference to all its provisions. The nature of the transaction which forms the contract subject matter must also be considered. In re Marriage of Norton, 757 P.2d 1127 (Colo.App. 1988).
Applying these principles here, we conclude that paragraph 16(a) of the separation agreement, while it could have been more explicit, was not ambiguous. Therefore, the trial court erred in adding language to the QDRO as it was contrary to the expressed intent of the parties.
Any issue as to the parties' intent is minimized when we consider the purpose of a QDRO. A QDRO is a device created by the IRS by which a participant's retirement funds can be transferred from a participant to a spouse, former spouse, child, or other dependent as a non-taxable event provided that the sum received is rolled over into an eligible retirement plan within the time limitations set by the regulations. I.R.C. §§ 1041 and 414(p). Here, the separation agreement provides that wife's share of husband's savings plan is to be transferred to her through a QDRO and also provides, in conformity with the provisions of I.R.C. § 1041, that the transfer is not a taxable event.
While the agreement expressly provides for the anticipated tax consequences surrounding *1191 the payment and receipt of maintenance, the tax deduction for the minor child, the parties' respective liability for the 1988 tax return, and the liability for marital debts, it is conspicuously lacking in any language that would obligate husband to pay the tax liability that would be incurred by wife should she request that her share of the savings plan be distributed to her prior to husband's earliest retirement date. Rather, by law, the transfer of wife's share of the savings plan through a QDRO is a non-taxable event. In addition, the separation agreement contains language stating that the parties both understand its terms, with each acknowledging that it contains the entire understanding of the agreement between them.
Wife concedes that the parties both knew and agreed that her $87,500 would be transferred from husband's savings plan through a QDRO, and that there was a meeting of the minds on this issue. Hence, the transfer of the $87,500 to wife pursuant to a QDRO was the non-taxable event that had been bargained for, and the trial court's amendment of the language of the QDRO constituted an impermissible and unjustified modification of the parties' separation agreement. See In re Marriage of Hall, 681 P.2d 543 (Colo.App.1984).
Accordingly, the order is reversed, and the cause is remanded to the trial court with instructions that it reinstate the QDRO in the form originally submitted by husband.
TURSI and PLANK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351356/ | 156 S.E.2d 606 (1967)
208 Va. 151
TRAVELERS INDEMNITY COMPANY
v.
M. G. FORD.
Supreme Court of Appeals of Virginia.
September 8, 1967.
Harry E. McCoy, Norfolk (Peter W. Rowe, Philip E. McCarthy, Seawell, McCoy, Winston & Dalton, on brief), for appellant.
John F. Rixey, Norfolk (Rixey & Rixey, Norfolk, on brief), for appellee.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
SNEAD, Justice.
On August 6, 1963, M. G. Ford filed a bill of complaint against The Travelers Indemnity Company, defendant, praying that a liability insurance policy issued by defendant on a certain tractor trailer owned by him be reformed to include fire and theft coverage, and that he be awarded judgment in the sum of $6,515.14 under the reformed policy for damages sustained to the units "while being operated by unauthorized persons". Ford alleged, among other things, that because of "the inequitable conduct, inadvertence, accident or mistake" on the part of defendant's agent, fire and theft coverage had been omitted. In its answer, defendant denied this allegation *607 and asserted that the loss was not one which would have been insured against even if fire and theft coverage were included in the insurance contract.
Initially, Ford had filed a motion for judgment against defendant and its agent, J. E. Heslep, Jr., seeking damages as a result of the alleged negligent issuance of the policy in question. Defendant filed a plea of the statute of limitations, but it was not brought to the court's attention until after the jury was impaneled. The court then overruled the plea and stated that should the verdict be for plaintiff, the plea would be reconsidered. The jury returned a verdict for plaintiff; and before any judgment was entered on the verdict, Ford instituted the present chancery suit seeking reformation and recovery.
It was agreed that the transcript of the testimony in the law action was to be considered as the record in the chancery suit and the case was submitted to the court upon memoranda by counsel.
The court in a letter opinion sustained defendant's plea of the statute of limitations in the action at law. It also held that Ford's policy should be reformed to include theft coverage because there was "no reasonable doubt that there was an innocent omission of theft coverage contrary to the intention of both parties and under a mutual mistake". The court further ruled "that an unauthorized use of the motor vehicle is proven by the evidence and constitutes a `theft' under the language of the policy as reformed". On March 17, 1966, the court entered a decree granting Ford substantially the relief prayed for and we awarded defendant an appeal.
Defendant poses these questions for our consideration: (1) "Was there a showing of a mutual mistake of fact and an innocent omission of a material stipulation, such as to give rise to a proper case for reformation?"; and (2) "Did the plaintiff prove a taking of the vehicle which would support a recovery under the `theft' provision of the policy, as reformed?"
The evidence may be summarized as follows:
Ford, the complainant, was an independent dealer who bought farm produce and sold it to retailers in the Norfolk area. In June 1959, defendant issued Ford a liability insurance policy on his 1950 Mack tractor and his 1954 Great Dane refrigerator trailer. The policy did not provide fire and theft coverage. In February 1960 Ford replaced the Mack tractor with a 1954 Autocar tractor because the "Mack was worn out."
Ford testified that he telephoned J. E. Heslep, Jr., a personal friend and an agent of defendant in Richmond, from the office of Mutual Savings & Loan Company in Norfolk, which had agreed to finance the Autocar tractor. He requested Heslep to substitute his newly acquired tractor for the old one and to add fire and theft insurance coverage to the policy because such insurance was necessary in order to secure the loan. The substitution was accordingly made, but fire and theft coverage was not added to the policy. In July 1960 the policy was renewed without fire and theft coverage. Ford did not read the policy.
Wyle N. Dillon was employed as a driver and helper on Ford's tractor-trailer. On November 3, 1960, Ford and Faris Gimball purchased about 700 bushels of apples in the Valley of Virginia which were loaded on the trailer and brought to Norfolk for sale. Dillon, who had accompanied Ford and Gimball on the trip, drove the loaded unit to his home in Norfolk with Ford's permission and parked it. The next afternoon Dillon drove it to Elizabeth City, North Carolina (a distance of about 42 miles) for the purpose of selling some of the apples to his father who was a "huckster". He took with him a neighbor, Charles L. Cassidy, to assist in the driving and unloading of the apples. Dillon sold 40 bushels of the apples to his father. He requested Cassidy to drive back to Norfolk because he (Dillon) had drunk "a couple of bottles of beer." On the way back to *608 Norfolk that evening, the tractor-trailer, while being operated by Cassidy, ran off the shoulder of Route 17, hit several trees, turned over and was damaged extensively.
Dillon testified that he frequently took the truck home at night; that on this occasion he told Ford that he was going to drive the truck to North Carolina and sell some of the apples to his father; that the trip was made with Ford's permission, and that he informed Ford that he "was going to pick up somebody to go with me."
On the other hand, Ford said that Dillon did not tell him that he planned to drive the tractor-trailer to North Carolina, and that he did not give him permission to make the trip "at any time." Ford testified that he permitted Dillon to drive the loaded truck home, because he had no other way to get there; that he instructed Dillon to park the truck in front of his house and lock it; that he "would pick it up", and that he had allowed Dillon to drive the truck home several times during his employment.
Trooper R. L. Eley arrived at the scene of the accident shortly after it occurred and neither Dillon nor Cassidy was present. A motorist informed Eley that the two occupants had gone to call a wrecker and the police. Ford was notified through the police of the mishap and he immediately went to investigate it. Cassidy, whom Ford said he had never seen before, returned to the scene after Ford had arrived. According to Eley, Cassidy said that a car forced him off the road. Eley charged Cassidy with reckless driving, but the charge was dismissed in court. Ford procurred warrants against both Dillon and Cassidy charging them with unauthorized use of his vehicle. The grand jury failed to indict them.
On the day following the accident Ford telephoned Heslep, defendant's agent in Richmond, and reported his loss. "I asked him was it covered, and he said yes, it was. He said, `get estimates on the truck and bring them to Richmond'" Ford secured estimates of the damages to his tractor-trailer and exhibited them to Heslep who was then in a hospital recovering from an operation. Ford stated that Heslep told him to take the estimates to his office and they "would be taken care of", and that he delivered the estimates to Heslep's secretary. Ford was subsequently contacted by defendant's adjuster who advised that the company would not pay the claim. Ford then called Heslep who said that the matter was "out of his hands" and advised him to "get a good lawyer."
Heslep stated that he was requested by Ford to add fire and theft coverage on the tractor-trailer, and that he told Ford "that I was going to cover him". He said that in order to write the coverage he needed "[t]he identification number, and also the price of the vehicle and the age, and a full description of the type * * *", so he wrote Mutual Savings & Loan Company in Norfolk, which financed the tractor, for that information. Failing to receive a reply to his letter, he talked on the telephone to an employee of Mutual and asked that the requested information be forwarded him because he was leaving "for three weeks on my honeymoon". He was told that the information would be sent "as soon as possible".
Heslep then left on his honeymoon. Upon his return he did nothing more on Ford's policy because "I was under the impression that it [the requested information] did come in. I do not do clerical work there. When the mail is opened I don't look at all the mail that is handled by my secretary. I thought it had been issued. I was under the assumption the whole time that it was." Heslep further stated that it was on this assumption that he advised Ford that he was covered when the loss was reported. According to Heslep, the information was never received by either him or his company. However, Ford testified that Heslep went to a truck stop outside of Richmond and secured the serial number of the tractor.
*609 The crucial issue presented is whether the court erred in holding that the loss due to "unauthorized use" was compensable under the terms of theft coverage of the reformed policy.
Under the reformed policy, theft coverage reads:
"Coverage GTheft (Broad Form)
"To pay for loss of or damage to the automobile, hereinafter called loss, caused by theft, larceny, robbery or pilferage."
Code, § 38.1-9 provides in part:
"Burglary and theft insurance means and includes:
"(1) Insurance against loss of or damage to any property resulting from burglary, theft, larceny, robbery, forgery, fraud, vandalism, malicious mischief, confiscation or wrongful conversion, disposal or concealment by any person or persons, or from any attempt at any of the foregoing * * *."
It will be observed that neither the policy nor the statute includes "unauthorized use" of a motor vehicle as a risk insured against under theft coverage.
We agree, as Ford contends, that ambiguities in an insurance policy are to be construed against the carrier, and that "the law makes every rational intendment to the end that the purpose of insurance, which is that of indemnity, should be effectuated * * *." Dressler, Adm'x v. Insurance Co., 200 Va. 689, 692, 107 S.E.2d 406, 408. However, we find no ambiguity in the language employed in describing the risks insured against under "Coverage G" of the policy. "Contracts of insurance are to be considered according to the sense and meaning of the terms used, and if clear and unambiguous the terms are to be taken in their plain, ordinary and popular sense." 10 Mich. Jur., Insurance, § 24, p. 314.
Virginia has enacted a statute making the unauthorized use of a vehicle a specific crime. Code, § 18.1-164 provides in part:
"Any person who shall take, drive or use any * * * vehicle * * * not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be confined in the penitentiary * * *."
In Slater v. Commonwealth, 179 Va. 264, 267, 18 S.E.2d 909, 910, we said:
"The main difference between common law larceny and the statutory offense of unauthorized use is that in the former there must be an intent to deprive the owner of his property permanently, while in the latter the intent is to deprive the owner of possession of his automobile temporarily and without any intent to steal the same. The intent with which property is taken determines the offense." See also Robinson v. Commonwealth, 190 Va. 134, 143, 56 S.E.2d 367, 371; Blanks v. Gordon, 202 Va. 295, 298, 117 S.E.2d 82, 84.
The rule applied in a majority of the jurisdictions which have had occasion to consider theft coverage under the terms of an automobile insurance policy, such as here involved, is that in order to constitute a theft there must be present an intent to permanently deprive the owner of the vehicle. If it is shown that the alleged thief intended to return the vehicle after using it temporarily, there is no theft. See 48 A.L.R. 2d 8, 29 and cases there cited.
In 7 Am.Jur.2d, Automobile Insurance, § 49, p. 357, it is stated:
"In a number of jurisdictions, the taking of a car, unaccompanied by an intent permanently to deprive the owner of the car, is made a crime separate from the crime of larceny. Under such statutes, a taking without the requisite intent has *610 generally been held not to be within the coverage of a theft policy."
Under the evidence adduced, Dillon and Cassidy were at most guilty of the unauthorized use of Ford's tractor-trailer. There was no showing that either of them had an intent to permanently deprive Ford of his vehicle. In fact, it was not disputed that the tractor-trailer was being returned to Norfolk when it was damaged in the accident.
We hold that loss due to unauthorized use of the vehicle was not one of the risks insured against under the theft coverage of Ford's reformed policy. In view of this conclusion, we do not deem it necessary to decide whether the evidence was sufficient to support a reformation of the policy.
Accordingly, the judgment appealed from is reversed and final judgment is here entered for the defendant.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351392/ | 116 Ga. App. 34 (1967)
156 S.E.2d 828
BROGDON
v.
McMILLAN.
42745.
Court of Appeals of Georgia.
Argued May 4, 1967.
Decided June 20, 1967.
*36 W. D. Knight, for appellant.
Fred F. Allen, Tyron Elliott, Reinhardt, Ireland, Whitley & Sims, Bob Reinhardt, for appellee.
DEEN, Judge.
1. Where under a will one is granted a life estate in land with a remainder over the tenant for life is entitled to its full use and enjoyment but must in such use exercise ordinary care for its preservation and must commit no act tending to the permanent injury of the remaindermen. Code § 85-604. Thus, a life tenant may not sell all the timber on the land. Willie v. Hines-Yelton Lumber Co., 163 Ga. 64 (2) (135 S.E. 505). As to partial cutting of timber, the fact situation must control. Old stringent rules against waste in England as applied to timber cutting by a life tenant were not adopted in Georgia because of the changed situation, the one country having too few and the other too many trees at the time; the rule in this State is that "in determining what amounts to waste, regard must be had to the condition of the premises, and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed?" Woodward v. Gates, 38 Ga. 205, 214. The question to be decided in each case is whether the value of the freehold will be injured. Smith v. Smith, 105 Ga. 106 (2) (31 S.E. 135); Lee & Bradshaw v. Roger, 151 Ga. 838 (2) (108 S.E. 371). "The clearing of land was waste in England, but such is not waste in Georgia, provided the land cleared still leaves the proportion of cleared land to uncleared land such as an ordinarily prudent person would maintain upon his own property." Roby v. Newton, 121 Ga. 679, 684 (49 S.E. 694, 68 LRA 601).
2. The history of the Declaratory Judgments Act in Georgia indicates how narrow a path lies between the Scylla of a mere advisory opinion and the Charybdis of accrued rights where the court feels the rights, whatever they are, are already in existence and no adjudication is necessary to protect the plaintiff from risk of future action. Salomon v. Central of Ga. R. Co., 220 Ga. 671 (1) (141 SE2d 424). "The object of the declaratory judgment is to permit determination of a controversy before *35 obligations are repudiated or rights are violated." Rowan v. Herring, 214 Ga. 370, 374 (105 SE2d 29); Pinkard v. Mendel, 216 Ga. 487 (2) (117 SE2d 336). This plaintiff holds a tenancy for life in two tracts of land of 175 acres each, the larger portion of each being covered with pine forest and fit for little else than the growth and sale of marketable pine timber. She alleges that the tracts contain many "old mature, over-mature, diseased, rough and deformed trees" which should be cut and removed in the interest of good husbandry, since the rate of deterioration of such trees exceeds their yearly growth and substantially reduces the new crop so that failure to remove them will cause a diminution in value of the timber land. Of the two remaindermen, one takes no position as to whether the timber should be cut or not, but the other contends that its removal by the plaintiff would be an act of waste. It cannot presently be determined which tract of land will go to which remainderman, since under the will they are to draw lots after the death of the life tenant. These circumstances fit squarely within the framework of the declaratory judgment. The plaintiff alleges that the trees should be cut now, but that if she does so she may be laying herself open to an action for waste which might result in damages or even in her removal as executrix of the will; her own position is that if the trees are not cut this would constitute a waste of the timberland resources. A decision by her represents action in the future with attendant risk, but is under her allegations one which must be made presently. The element of contingency relating to the vesting of the remainder interest in the two tracts is not determinative of the issue since the plaintiff intends to cut timber from both. Provision is made by Code Ann. § 110-1103 for the determination of factual issues, and the extent of timber cutting which accords with good husbandry in a given locality under ascertained circumstances is a question of fact. The petition seeking a declaratory judgment was not subject to general demurrer.
3. A special demurrer on the ground that the allegations of stated paragraphs of the petition are conclusions of the pleader, without setting out how or wherein such allegations are thus deficient, is too incomplete to invoke a ruling of the court. Brown v. Douglas, 104 Ga. App. 769 (3) (122 SE2d 747).
Judgment affirmed. Jordan, P. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351394/ | 208 Va. 141 (1967)
RUTH GORT WIMBROW
v.
VERNON A. WIMBROW.
Record No. 6464.
Supreme Court of Virginia.
September 8, 1967.
Henry M. Schwan for appellant.
Daniel Hartnett; R. Norris Bloxom (C. Lester Drummond, on brief), for appellee.
Present, Eggleston, C.J., and Spratley, Buchanan, Snead, Carrico and Gordon,
1. Leaving not justified unless conduct would ground divorce. Brutal beating amounting to cruelty justifies leaving.
2. New incident of beating revives right to complain of previous beating which had been condoned.
3. Jealousy and accusations did not amount to cruelty by wife where she had reason to suspect improper relations with other women.
4. Financial statement given to bank not privileged. Should be admitted and counsel permitted to ask disposition of assets shown to refute testimony of substantially smaller current net worth.
Appeal from a decree of the Circuit Court of Accomack County. Hon. Charles M. Lankford, Jr., judge presiding.
GORDON
GORDON, J., delivered the opinion of the court.
Ruth Gort Wimbrow brought this suit against her husband asking for divorce from bed and board because of his cruelty and because of his constructive desertion on July 7, 1965. The husband, Vernon A. Wimbrow, filed a cross-bill asking for a divorce from bed and *142 board because of her desertion on that day. After hearing the evidence in open court, the trial judge awarded the husband a divorce. The wife appeals.
The parties were married in 1939. Mr. Wimbrow said they "got along all right" until 1942, when Mrs. Wimbrow accused him on two occasions of improper relations with his brother's widow. After those incidents, the domestic situation grew progressively worse. Mr. Wimbrow said that thereafter he had "never loved . . . [his] wife", in fact "had no respect for her".
Mr. Wimbrow complains of Mrs. Wimbrow's jealousy and her accusations about his improper relations with other women. He admitted that "except when she would make these accusations [about other women], I have no complaint of her as a wife and mother. She kept the house properly, but she is insanely jealous, and it was always something. If I got blood on my handkerchief from blowing my nose, she would insist it was lipstick".
Mrs. Wimbrow's daughter by a previous marriage (Audrey Wiston) said that during her visit in the home from mid-June to July 4, 1965, Mr. Wimbrow rarely spoke to Mrs. Wimbrow, did not have meals with her, and habitually left home alone around 10:00 o'clock at night, returning around 5:00 the next morning. Mr. and Mrs. Wimbrow's daughter (Orchid Wimbrow) and Mrs. Wimbrow's granddaughter (Blossom Thompson) said that they had observed similar conduct when they were visiting in the home during the last several years before the separation. Mr. Wimbrow did not contradict the testimony of these witnesses about his conduct.
The events of the early morning of July 7, 1965 are crucial to our decision because they prompted Mrs. Wimbrow to leave home. Before describing those events, however, we will relate a previously unmentioned subject to controversy that Mr. Wimbrow pointed to as justifying his actions on July 7.
Mr. Wimbrow complained that his wife took his money. He said: "If you put money down, she would pick it up. If you had two fifty dollar bills, she took one of them. You couldn't hide a pocketbook from her. I have left it in the safe at the office, and not carried it home. I would count the money in my wallet, and tell her, you took a hundred dollars out of my pocket." He said further "I had told her a few years ago that if she ever took money from me again, she would remember it for a long time".
Mr. Wimbrow returned home in the early morning of July 7, *143 1965 and went to bed. Later he got up and went to the bathroom. Mrs. Wimbrow, who was in another bed in the same room, then got up and removed his wallet from its hiding-place under the mattress of his bed. She said "[while] I was looking at his wallet, he came in, crashed his fist in my face, threw me on the bed, and picked up a dressing table bench, and beat me unmercifully".
Mr. Wimbrow testified that he slapped Mrs. Wimbrow. "[She] had money in her hands, and the pocketbook, and I told her to leave it alone, and I slapped her, and told her to leave the room, and she wouldn't do it, and I slapped her several times. She dropped what money she had taken, and told me to leave." He refused and "went back to bed".
Mr. Wimbrow's testimony that he only slapped his wife is incredible in view of the other uncontradicted evidence. A doctor saw Mrs. Wimbrow on July 9, 1965. He found "hematomas and abrasions of the left upper arm * * * and the upper portion of the left thigh". The hematomas were "of susbtantial size". When the doctor was asked "would it require a hard blow on the areas of the arm and leg [to cause the injuries] you have described" he answered "It would have to be a pretty good blow".
A picture of Mrs. Wimbrow taken in mid-July 1965 shows severe bruises of the left arm and thigh. At the time of the trial, about five months after the beating, there was still "a discolored mark on her [left] arm", about two inches wide and two inches long, and a discolored mark on her left thigh of undisclosed dimensions.
Both parties alleged that Mrs. Wimbrow left home on July 7, 1965. She said she left on July 7 because she was afraid, and would have left earlier in the day except for car trouble that required her to rent a car. Mr. Wimbrow said she left home the "following morning", the "8th [of July]". He was probably mistaken about the date, but in any event he is bound by his allegation that she left on July 7. Their testimony that they had been continuously separated through the trial of this case in December 1965 was corroborated.
The question raised by the events of July 7 is whether Mrs. Wimbrow was justified in leaving home on that day. Counsel for Mr. Wimbrow contends that she was not justified in leaving, even though she was beaten, because she provoked the beating.
"[One] spouse is not justified in leaving the other, unless the conduct of the other is sufficient to establish the foundation of judicial proceeding for a divorce." Lawyer Lawyer, 207 Va. 260, 264, *144 148 S.E.2d 816, 819 (1966). We find that the actions of Mr. Wimbrow described above, culminating in the beating of Mrs. Wimbrow on July 7, 1965, constituted cruelty, a ground for divorce in Virginia. See Green Green, 199 Va. 927, 103 S.E.2d 202 (1958). Mrs. Wimbrow was therefore justified in leaving home and is entitled to a divorce unless Mr. Wimbrow can successfully defend on the ground that she provoked the beating on July 7, 1965 or that her actions before that day should bar the granting of a divorce to her.
"The general rule is that a divorce will not be granted on the ground of physical cruelty when the acts of cruelty complained of were provoked by the misconduct of the complaining spouse. However, that there was some provocation will not disentitle a spouse to relief if the retaliatory cruelty complained of was out of proportion to the provoking conduct." Godwin Godwin, 245 S.C. 370, 376, 140 S.E.2d 593, 596 (1965).
Mr. Wimbrow testified that Mrs. Wimbrow had taken his money on occasions before July 7, 1965, and that he had warned her "she would remember it for a long time" if she took money from him again. So we recognize that Mrs. Wimbrow knew or should have known that she would provoke action by Mr. Wimbrow if he should surprise her taking money from his wallet.
While admitting that Mrs. Wimbrow's taking money from her husband's wallet on July 7 was an act of provocation, we find that his retaliatory conduct, in beating her brutally, was out of proportion to her provoking act. We hold therefore that Mrs. Wimbrow's provoking act did not disentitle her to a divorce.
Counsel for Mr. Wimbrow relies upon Toler Toler, 168 Va. 302, 191 S.E. 638 (1937) and Butler Butler, 145 Va. 85, 133 S.E. 756 (1926), to support his contentions that Mrs. Wimbrow's provoking act on July 7, 1965 disentitled her to relief. Those cases, however, do not control the decision of this case. Not only were the wives' provoking acts in those cases more aggravated, but the husbands' retaliatory acts were much less severe than Mr. Wimbrow's actions.
We conclude also that the brutal beating on July 7, 1965 gave Mrs. Wimbrow reason to fear further bodily harm if she continued to live in the home. This was not the first time Mr. Wimbrow had beaten or threatened Mrs. Wimbrow. Their daughter Orchid, who was twenty-five when she testified, said that when she was thirteen or fourteen: ". . . I saw him [Mr. Wimbrow] strike her *145 [Mrs. Wimbrow]. He pushed her on the bed and hit her with his left hand. He hit her several times with his right. I was screaming at him to stop." Orchid said "And also I have seen bruises from other beating that [sic] I wasn't there." She did witness this incident: "[They] [Mr. and Mrs. Wimbrow] had an argument, and he grabbed a shotgun. * * * Threatened to kill her and himself. She begged him to stop." Mr. Wimbrow did not contradict this testimony given by Orchid. Moreover, the beating on July 7, 1965 revived Mrs. Wimbrow's right to complain of previous beatings, which she had condoned by continuing to live with her husband. See McKee McKee, 206 Va. 527, 145 S.E.2d 163 (1965).
We hold that Mrs. Wimbrow was justified in leaving home on July 7 and is entitled to a divorce unless her actions before that day constituted sufficient grounds for awarding a divorce to Mr. Wimbrow. If her actions constituted sufficient grounds, the rule of recrimination would bar the granting of a divorce to her.
As grounds for granting a divorce to him, Mr. Wimbrow relies upon Mrs. Wimbrow's jealously and her accusations about his improper relations with other women. Twice in 1942 Mrs. Wimbrow accused Mr. Wimbrow, in the presence of his brother's widow and other persons, of improper relations with his brother's widow. Mr. Wimbrow admitted that he slapped Mrs. Wimbrow on the second occasion.
In 1954 Mrs. Wimbrow accused him, in his secretary's presence, "of having an affair" with his secretary. Mr. Wimbrow said he ordered Mrs. Wimbrow out of the office and, when she did not leave, he slapped her. At Mr. Wimbrow's insistence, Mrs. Wimbrow apologized to his secretary. (The secretary testified that Mrs. Wimbrow apologized, but the secretary's aunt, who was present, said that Mrs. Wimbrow also repeated the accusation.) The secretary testified that shortly thereafter Mrs. Wimbrow "came to the office, and ran me [the secretary] out again". Mr. Wimbrow testified "[she] [Mrs. Wimbrow] still continues to this day to accuse me of having an affair with . . . [my secretary]", and that Mrs. Wimbrow has accused him "of going with any woman whose home I played bridge in . . . [identifying three women], and any number of other women". He denied the truth of her accusations.
However, Mr. Wimbrow did not deny the testimony, which we have recited, that he habitually left home alone around 10:00 o'clock at night, returning around 5:00 the next morning, during the last *146 several years before the separation. Nor did he contradict other damaging testimony, some of which will be outlined in the next two paragraphs.
Mrs. Wimbrow testified that she found other women's lipstick on Mr. Wimbrow's clothing. Their daughter Orchid and Mrs. Wimbrow's daughter Audrey Wiston corroborated Mrs. Wimbrow's evidence. Orchid said "I have seen lipstick on his clothes, but I didn't see how it got there. * * * It had a bluish cast that none of us [the family] wear".
Audrey Wiston testified about Mr. Wimbrow's remarks to her in 1962: "He told me that he went out with other women, and if they wouldn't go to bed with him by the fourth time he took them out -- went out with them -- he never went to see them again, and I was very very shocked".
We cannot sustain a finding that Mrs. Wimbrow's jealousy and accusations amounted to cruelty. In view of Mr. Wimbrow's conduct, as shown by the uncontradicted evidence, Mrs. Wimbrow had reason to suspect her husband of improper relations with other women.
As we have pointed out Mr. Wimbrow testified that he had no complaint of Mrs. Wimbrow as a wife and mother except for her jealousy and accusations of infidelity. Nevertheless we will deal with other incidents referred to in the statement of facts contained in the brief filed by his counsel.
The brief recites that Mrs. Wimbrow "reported her husband to the Internal Revenue Service for tax matters which resulted in her husband suffering audits for prior years". But Mr. Wimbrow testified only that Mrs. Wimbrow had said she would report him to the Internal Revenue Service for "cheating" on his income tax and that he heard her call the Internal Revenue Office in Norfolk at 6:00 o'clock one morning. He admitted that he did not hear what she said, and that he did not know whether a subsequent audit by the Service was prompted by her call.
The brief recites that Mrs. Wimbrow "spitefully refused to sign deeds of trust . . . [the signing of which was necessary] in order to facilitate the performance of her husband's business". But the evidence shows that she signed certain deeds of trust, and she gave reasons for refusing to sign others. Furthermore, when Mr. Wimbrow was questioned about her failure to sign a deed of trust to enable him to purchase certain property, he said "[neither] the purchase *147 of that or no [sic] other land was an absolute necessity".
Finally, the brief recites that "using outrageous language, the complainant [Mrs. Wimbrow] on learning that her husband's father might marry a relative of a certain Nan Byrd informed the latter that her husband would not be responsible for the support of either party to this marriage".
The incidents outlined in the preceding three paragraphs, singularly and in the aggregate, do not prove cruelty on Mrs. Wimbrow's part. Counsel failed to prove what Mrs. Wimbrow said when she called the Internal Revenue Service or that Mr. Wimbrow suffered an audit because of Mrs. Wimbrow's call. He failed to prove that she "spitefully" refused to sign deeds of trust. Mrs. Wimbrow's conversation with Nan Byrd, even if improper, does not prove cruelty to her husband.
Although we are reluctant to set aside findings made by a trial judge upon evidence heard in open court, we must do so on the record before us. The decree is therefore reversed and the cause remanded with direction to grant Ruth Gort Wimbrow a divorce from bed and board from her husband, Vernon A. Wimbrow, on the ground of cruelty.
In connection with Mrs. Wimbrow's request for alimony, the court should admit in evidence a financial statement dated August 26, 1964, which Mr. Wimbrow gave to a bank, reflecting a net worth of approximately $277,000. Mrs. Wimbrow's counsel proffered this statement, but upon objection that the statement was privileged the trial judge refused to admit it as evidence. Mr. Wimbrow's counsel now concedes that the statement was not privileged, but says it was not pertinent evidence of Mr. Wimbrow's current financial condition. The admission of the statement will not imply that it reflects Mr. Wimbrow's present net worth. But since he testified in this suit that his current net worth was approximately $20,000, Mrs. Wimbrow's counsel should be permitted to ask him what disposition he has made of the assets listed in the financial statement.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2629613/ | 219 P.3d 592 (2009)
347 Or. 290
STATE
v.
GREENE.
(S057824).
Supreme Court of Oregon.
October 21, 2009.
Petition for review denied. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351522/ | 247 Kan. 609 (1990)
802 P.2d 568
CITY OF LIBERAL, KANSAS, Appellant,
v.
SEWARD COUNTY, KANSAS, Appellee.
No. 64,358
Supreme Court of Kansas.
Opinion filed December 7, 1990.
Rex A. Sharp, of Neubauer, Sharp, McQueen, Dreiling & Morain, P.A., of Liberal, argued the cause and was on the brief for appellant.
Tom R. Smith, of Smith & Miles, Chartered, of Liberal, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an appeal by the City of Liberal (City) from a judgment of the Shawnee County District Court affirming an order of the Board of Tax Appeals (BOTA), which denied exemption of royalty interest owned by the City from ad valorem taxation. We granted the appellant's petition for review.
The facts are undisputed. After World War II, the United States conveyed a large tract of land to the City, which is now used as the municipal airport for the City. The enabling deed to the City required all income from the land be used for airport maintenance. Part of this land surrounding the airport has been *610 developed into an industrial park. A portion of the undeveloped real estate not used for airport hangars, runways, etc., was leased in 1983 for oil and gas development purposes. The land has been leased to an oil and gas producer, and presently wells are operating on the property. At the time of the execution of the lease, the City reserved a royalty interest in the leased property and receives royalty income for the gas being produced from the land. It is this royalty interest that the City seeks to exempt from taxation.
The royalty income is used by the City exclusively for the maintenance, operation, and improvement of the airport. At the hearing before BOTA, the Board was informed that the income from the property was being used for airport maintenance, which by law could be supported by taxes or by bonds. The funds were deposited in the airport fund, which was also supported by a city-wide 2.5 mill tax levy for airport maintenance.
BOTA found the facts in City of Arkansas City v. Board of County Commissioners, 197 Kan. 728, 420 P.2d 1016 (1966), nearly identical to the present case and concluded that the leases were not a governmental function but were taxable as in a trade or business. BOTA concluded that the lease existed purely for the production of revenue, and the only participation of the City was to receive payments. BOTA concluded that disposition of the proceeds from the leases was not material to the exemption question. Because the operation of the lease was not essential to the operation of the airport, BOTA concluded that it was not used for a governmental or proprietary function but, instead, was used solely to generate income, and its absence would not affect airport operations.
Here, the decision by the district court upheld the conclusion by BOTA. The district court, however, did not discuss City of Arkansas City but, instead, relied upon Salina Airport Authority v. Board of Tax Appeals, 13 Kan. App.2d 80, 761 P.2d 1261, rev. denied 244 Kan. 738 (1988), in concluding that the leased properties were not in any way used for a proprietary function of the government. The fact that the airport authority received rental income from the properties did not constitute use within the meaning of the statute. The district court found the royalty payments received by the City similar to the rent received by *611 the airport's leased properties and concluded that the City was not entitled to an exemption from ad valorem taxation.
The Court of Appeals reluctantly affirmed the district court because it found the facts here indistinguishable from those in City of Arkansas City. The court also found K.S.A. 79-201a Second to be indistinguishable from the 1963 amendment to G.S. 1949, 79-201, which was the basis for the decision in City of Arkansas City. The Court of Appeals noted: "While we might not agree with the decision announced in City of Arkansas City, we are bound to follow it. It is controlling in this case; therefore, we have no choice but to affirm."
The sole issue before us is whether the City of Liberal's royalty interest from oil and gas leases is exempt from ad valorem taxation. BOTA concluded the royalty interest was not; the district court and the Court of Appeals agreed.
We first note that, on appeal, orders of BOTA are subject to judicial review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See K.S.A. 1989 Supp. 74-2426(c). Under that Act, the court's scope of review is controlled by K.S.A. 77-621, which this court recognizes as somewhat broader than the traditional three-pronged scope of review set forth in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 (1968). The applicable provision of the scope of review relevant here is set forth at K.S.A. 77-621(c)(4), which states that the court shall grant review only if BOTA "has erroneously interpreted or applied the law." The burden of proving the invalidity of the agency action is on the party asserting invalidity, which here would be the City. K.S.A. 77-621(a)(1). In determining whether the invalidity of the agency action has been established, "due account shall be taken by the court of the rule of harmless error." K.S.A. 77-621(d).
The City asserts that it is exempt from paying ad valorem taxes on the royalty interest in the oil and gas leases on the real estate connected with the airport based upon the statutory exemption of K.S.A. 79-201a, which provides, in relevant part:
"The following described property, to the extent herein specified, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
*612 ....
"Second. All property used exclusively by the state or any municipality or political subdivision of the state. All property owned ... by the state or any municipality or political subdivision of the state which is used or is to be used for any governmental or proprietary function and for which bonds may be issued or taxes levied to finance the same, shall be considered to be `used exclusively' by the state, municipality or political subdivision for the purposes of this section."
The City also contends that the royalty interest in the oil and gas leases is exempt under Kan. Const. art. 11, § 1(b)(2), which provides that "[a]ll property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes ... shall be exempted from property taxation."
The interest in question here is a royalty interest, which is "the compensation paid to the owner of the mineral interest in land where gas, oil, or other inorganic substance is produced and usually consists of one-eighth or other agreed share of the financial proceeds thereof." Rathbun v. Williams, 154 Kan. 601, 603, 121 P.2d 243 (1942). An owner of a mineral interest may sell and assign a royalty interest. An assignee of a royalty interest may, in turn, sell it to another assignee. Thus, royalty interests are considered personal property and are taxed as personal property. 154 Kan. at 604.
Basic rules and legal principles concerning the exemption of property from ad valorem taxes were summarized by this court in Tri-County Public Airport Auth. v. Board of Morris County Comm'rs, 245 Kan. 301, 304-05, 777 P.2d 843 (1989), as follows:
"Whether particular property is exempt from ad valorem taxation is a question of law if the facts are agreed upon. T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645, 693 P.2d 1187 (1985); [citation omitted]. Taxation is the rule, and exemption from taxation the exception under the Kansas Constitution and statutes. T-Bone Feeders, Inc. v. Martin, 236 Kan. at 645; City of Arkansas City v. Board of County Commissioners, 197 Kan. 728, Syl. ¶ 1, 420 P.2d 1016 (1966); [citations omitted]. Constitutional and statutory provisions exempting property from taxation are to be strictly construed against the one claiming exemption, and all doubts are to be resolved against exemption. In re Application of Int'l Bhd. of Boilermakers, 242 Kan. 302, 305, 747 P.2d 781 (1987); [citations omitted]. Where the language of a statute, in particular, is relied upon as creating an exemption from taxation, it must be strictly construed against the party claiming the exemption, and he must bring himself clearly within the exemption. Meadowlark Hill, Inc. *613 v. Kearns, 211 Kan. 35, 41, 505 P.2d 1127 (1973); [citation omitted]. Strict construction, however, does not warrant unreasonable construction. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, Syl. ¶ 2 [, 473 P.2d 1 (1970)]."
As previously indicated, the decision of the district court upholding BOTA's denial of the exemption in this case relied upon Salina Airport Authority v. Board of Tax Appeals, 13 Kan. App.2d 80. The district court found the royalty payments made to the City of Liberal similar to the rental income received by the Salina Airport Authority. The district court concluded that, in both cases, the fact that income was being generated for the operation and maintenance of the airport did not constitute use within the meaning of the tax exemption statute, and therefore an exemption from ad valorem taxation was not appropriate.
In reaching its decision, the Court of Appeals discussed Salina Airport Authority merely to support its statement that the exclusive use of property sought to be exempted from taxation is the relevant issue, not the source of the property or the character of the owner. The decision by the Court of Appeals is not based upon Salina Airport Authority but, instead, relies upon this court's decision in City of Arkansas City, 197 Kan. 728. The Court of Appeals correctly points out that the facts of City of Arkansas City are almost identical to the facts in this case. In City of Arkansas City, the United States conveyed land located in Sumner County to Arkansas City and the City of Winfield as tenants in common after World War II. 197 Kan. 728. In 1952, the cities executed oil and gas leases concerning the land and received a one-eighth royalty interest. The money received was commingled with other municipal revenues and used for numerous purposes with the consent of the United States. 197 Kan. at 729. At the time the leases were executed, the current statutes exempted all property belonging exclusively to any city or town. At the time, the test of whether real estate was exempt from taxation was ownership, not use. 197 Kan. at 729 (citing City of Harper v. Fink, 148 Kan. 278, 80 P.2d 1080 [1938]). The statutes were amended in 1963, however, to require that the property belong to and be used exclusively by the state or municipality. 197 Kan. at 729. Pursuant to this change in statute, Sumner *614 County placed the one-eighth landowner's royalty interest on the tax rolls. 197 Kan. at 729-30.
The sole question addressed in City of Arkansas City was whether the act of the cities in leasing the land for oil and gas purposes and receiving royalty payments attributable to their one-eighth landowner's royalty interest constituted leasing, loaning, or otherwise making such property available to any person, firm, or corporation for use in any trade, business, or commercial enterprise. The court concluded that the change in the statutes made use, not ownership, the important factor in determining whether an exemption existed. The court concluded: "By virtue of the oil and gas leases executed by plaintiff cities, their interest in the land was made available to the lessee for use in a trade, business or commercial enterprise and, under the statute, it thereby lost its exemption from taxation." 197 Kan. at 730.
In reaching its decision in this case, the Court of Appeals concluded that G.S. 1949, 79-201, as amended in 1963, is indistinguishable from the statute which must be interpreted in this case. The 1963 amendment to G.S. 1949, 79-201 provided as follows:
"That the property described in this section, ... shall be exempt from taxation: ...
....
"Sixth. All property belonging to and used exclusively by the state or any municipality or political subdivision of the state, except lands bid off for counties or cities at tax sales: Provided, That if any of such property is leased, loaned or otherwise made available to any person, firm or corporation for use in any trade, business or commercial enterprise, such property so leased, loaned or otherwise made available shall not be exempt from taxation...." L. 1963, ch. 456, § 1."
As previously indicated, the Court of Appeals concluded that it had no choice but to follow the decision in City of Arkansas City.
Neither the parties nor the Court of Appeals discussed the recent decision by this court in Tri-County Public Airport Auth. v. Board of Morris County Comm'rs, 245 Kan. 301. The Court of Appeals does mention the case for the principle that whether specific property is exempt from ad valorem taxation pursuant to K.S.A. 79-201a is a question of law if the facts are undisputed. Although the facts in Tri-County are not identical to those of the *615 present case, the issues are very similar. As in Salina Airport Authority, the issue in Tri-County involved a question of whether the leasing of parcels of real estate to private entities for nonaviation, commercial purposes constituted a "governmental or proprietary function" for purposes of K.S.A. 79-201a Second.
In Tri-County, the City of Herington acquired a former Army air base from the United States government in 1948. The city paid ad valorem taxes on the property while it was under city ownership. The city operated the property as an airport and entered into several leases with private entities for the use of various parcels of property on the old air base for a variety of purposes. In 1978, the city created the Tri-County Public Airport Authority, which sought an ad valorem tax exemption pursuant to K.S.A. 1988 Supp. 79-201a because the primary function of the property was to operate as a municipal airport with several businesses operating in the industrial park. This court stated that the issue in the case was "whether the ownership and use of property solely for the production of revenue is a `governmental or proprietary function' within the meaning of the statute." 245 Kan. at 308. We noted that Tri-County did not contend that it performed a governmental function when it leased the property to private entities for commercial purposes totally unrelated to any airport activity but argued that leasing of the property to generate revenue for airport operations constituted a proprietary function with a public purpose. Morris County countered that no public function of government was being carried out on land leased to private entities, and therefore the property did not meet the statutory definition of "used exclusively." Instead, the county argued that only a use that was directly necessary to the operation of the airport constituted a governmental or proprietary use with a public purpose as contemplated by 79-201a Second. 245 Kan. at 308.
This court noted that the same question had been addressed by the Kansas Court of Appeals in Salina Airport Authority. We rejected Tri-County's attempt to distinguish Salina Airport Authority on the facts. We also recognized that the decision in Salina Airport Authority was consistent with the majority rule of other jurisdictions where ownership of property by an exempt body is not the sole test of exemption. 245 Kan. at 309. We found the *616 decision in Salina Airport Authority to be consistent with the longstanding case law requiring strict construction of statutory tax exemptions and concluded:
"Exclusive use as defined by the statute requires actual use of the property for a public purpose. The leasing of portions of the Tri-County property solely for the purpose of generating revenue, while authorized by the Surplus Property and Public Airport Authority Act, does not constitute exclusive use for a `governmental or proprietary function' of the airport authority even though the particular use of the leased property may be proprietary in nature. The use contemplated by the statute and our prior cases is one directly connected with an appropriate function of government. As stated by the BOTA, `The use must be in the nature of a public use even though proprietary in nature.' Ownership of property solely for the purpose of producing revenue which may ultimately be used to finance a governmental function, in this case the airport facility, is not exclusive use as defined by K.S.A. 1988 Supp. 79-201a Second." 245 Kan. at 310.
The court noted that the 1989 session of the legislature, presumably in response to Salina Airport Authority, amended K.S.A. 27-319 to exempt the Salina Airport Authority from payment of ad valorem taxes. The court pointed out that if the legislature had intended this amendment to apply to other airport authorities, then the statute could easily have been amended to indicate this intent.
Finally, in Tri-County this court emphasized that its decision was based upon the facts of the case where the property not exempt from taxation "was being leased to private enterprise for businesses which have no direct or necessary relationship to the operation of a public airport." 245 Kan. at 311. We made no determination about the taxability of airport property that is "leased to airport-related businesses necessary or advisable in the proper operation of an airport facility." 245 Kan. at 311.
Here, the City argues that this court should not be bound by or, if necessary, should overrule City of Arkansas City because the court there did not focus on the difference between real estate and royalty interest.
The City also argues that the royalty interest here is exempt under the constitution because the constitutional provision refers to "all property," which would include the royalty interest at issue in this case, and because the income from the royalty interest is "used exclusively for municipal purposes." The City notes *617 that under the constitutional provision, the ownership of the royalty interest does not matter but, instead, the use must be for a municipal purpose. Because the City uses the money received under the royalty interest exclusively for the maintenance of the municipal airport, it argues that its use for a municipal purpose is established.
The City further argues that it is exempt under the first sentence of K.S.A. 79-201a Second because the property is used exclusively by the municipality since the funds are invested in the airport account and used exclusively for maintenance and operation of the airport. The City also argues that it qualifies for exemption under the second sentence of K.S.A. 79-201a Second because it meets the three tests set forth in that sentence: First, the royalty interest here is property that is owned by the municipality. Second, the property is used for a governmental or proprietary function because the proceeds fund maintenance of the municipal airport. Third, the maintenance fund, where the royalty interest proceeds are deposited, can be, and in fact is, supported by a tax levy and bonds. Therefore, the City argues that it qualifies for the exemption under both the constitution and the statute.
The County asserts that the existence of the oil and gas lease takes away the City's exemption because the property is no longer used exclusively for a governmental or proprietary purpose. The County argues that the lease is not in any way used for a proprietary function of the government and is used solely for oil and gas exploration to generate a profit to the leaseholder. Although a portion of that profit does go to the City as a royalty payment, the lease itself carries out no public function of government.
The arguments in Tri-County are similar, if not identical, to those being presented by the parties here. The only different argument is the attempt to distinguish income acquired by rental of real estate from royalty income from an oil and gas lease. The problem with the distinction is that the statute refers to "all property," both in exempting that exclusively used by the municipality as well as in excluding that which is owned by the State or municipality and used for a governmental or proprietary function, and that for which bonds may be issued or taxes levied to finance the same. No distinction is made between income *618 received from the rental of real estate as opposed to royalties received from an oil and gas lease. Although the City's arguments are based upon this distinction, prior decisions, and particularly the analysis of this court in Tri-County, indicate that this distinction is insignificant and income should not be treated differently based upon whether it is from rental of real estate or royalties from an oil and gas lease.
The question here, as in Tri-County, is whether the ownership and use of property solely for the production of revenue is a "governmental or proprietary function" within the meaning of the statute. 245 Kan. at 308. The analysis by this court in Tri-County is applicable here. The court concluded that exclusive use as defined by the statute requires actual use of the property for a public purpose. Even though the use of the leased property here was proprietary in nature, the use was not one directly connected with an appropriate function of the government.
We agree with the Court of Appeals that the facts in City of Arkansas City are indistinguishable from the facts in the present case. We find the decision in City of Arkansas City and our analysis of Tri-County to be controlling here. We therefore conclude that the City of Liberal is not entitled to an exemption under K.S.A. 79-201a Second or Article 11, § 1(b)(2) of the Kansas Constitution.
The judgments of the Court of Appeals and the district court are affirmed.
ABBOTT, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351523/ | 223 Ga. 385 (1967)
156 S.E.2d 86
CITIZENS & SOUTHERN NATIONAL BANK et al., Trustees
v.
ORKIN, by Next Friend, et al.
24073.
Supreme Court of Georgia.
Argued May 9, 1967.
Decided May 18, 1967.
Rehearing Denied June 8, 1967.
*387 George G. Finch, Ben Kohler, Jr., I. T. Cohen, Powell, Goldstein, Frazer & Murphy, Robert R. Hardin, James N. Frazer, B. D. Murphy, for appellants.
Adair, Goldthwaite, Stanford, Daniel & Horn, T. Emory Daniel, Albert M. Horn, for appellees.
NICHOLS, Justice.
1. The first contention of the trustees is that since the trust agreement granted to the trustees a discretion as to the amount of the money to be used for the support of Otto Orkin, the trial court was without authority to interfere with such discretion. In support of this contention they cite Turner v. Trust Co. of Ga., 214 Ga. 339, 346 (105 SE2d 22), where it was held: "It is well settled that where, as here, the instruments creating the trust confer upon the trustee discretionary power to be exercised according to its judgment, a court of equity will not interfere to control the trustee, acting bona fide, in the reasonable exercise of its discretion. Papot v. Gibson, 7 Ga. 530; Semmes v. Mayor &c. of Columbus, 19 Ga. 471." Incidentally the Turner case was heard by the same trial judge who decided the case sub judice and he properly distinguished cases where trustees are bona fide exercising a discretion and cases where the trustees' discretion is not being exercised bona fide as *388 was shown in Cates v. Cates, 217 Ga. 626, 632 (124 SE2d 375), where it was held: "`... A discretionary power in a trustee is [not] beyond the reach of judicial inquiry. A court will interfere whenever the exercise of discretion by the trustee is infected with fraud or bad faith, misbehavior, or misconduct, arbitrariness, abuse of authority or perversion of the trust, oppression of the beneficiary, or want of ordinary skill or judgment.' 54 AmJur 228, Trusts, § 287. `The courts will not ordinarily interpose to restrain the execution of a power, except where abuse of discretion, bad faith, or fraud is shown, or where the power is attempted to be exercised in a manner different from that authorized by the donor.' 72 CJS 430, § 34."
The evidence, presented by verified petition and answer as well as affidavits submitted on the hearing and stipulated as the evidence, amply supported the findings of the trial court quoted in part as follows: "Under the evidence in this case it appears that there has been some arbitrariness on both sides in this case. The previous expenditures and obligations incurred by Mrs. Orkin indicate some degree of irresponsibility in the handling of the funds set apart for use for the beneficiary, Mr. Orkin. On the other hand, the total cessation by the trustees of providing funds, even for a few days or a few weeks was not only arbitrariness on the part of the trustees but also a failure to perform their duties under the trust agreement. There may be some mitigating circumstances but on the other hand it is an indication of the apparent vindictiveness between some of the trustees and Mrs. Orkin. It is easily perceivable that there is at least an aura of ill feeling and bitterness between some of the parties involved in this case.
"Under the law Mr. Orkin is obligated by law for the reasonable support and maintenance of his wife, including legal necessities. See Code § 53-510. The case of Thigpen v. Maddox, 56 Ga. App. 464 (192 SE 925), is a basis for holding that support of the wife includes the cost of attorneys' fees incurred in defense of her against criminal charges as well as attorneys' fees in protecting her rights and determining her liabilities.
"The chaotic course of supporting Mr. Orkin, including proper maintenance and support for Mrs. Orkin makes it very difficult *389 for the court to discern a pattern of conduct which results in a stable program of compliance with the duties imposed upon the trustees.
"It appears that Mr. Orkin is in the area of 80 years of age, that while he has been adjudicated to be incompetent to manage his affairs, he still has the capacity and desire to enjoy some of the pleasures and comforts of life to which a man who, by his own efforts, has acquired substantial wealth is justly entitled. He also requires medical and professional care. In addition he has the legal obligation to support his present wife adequately and commensurately with his means and standard of living. Financial provisions for the uninterrupted continuity of these matters is the clear duty of the trustees under the trust agreement.
"Item 3 of that document provides that `in the event of donor's (Mr. Orkin's) incapacity for any reason, the trustees shall be authorized to pay and/or use so much of the net income as they deem necessary for his care, support, comfort and welfare.'
"In Item 4 (b) of the trust instrument it is specified that `In the event of the donor's incapacity for any reason the trustees shall have the right to encroach upon the corpus of the trust estate in such amounts and at such times as they deem proper for donor's care, support, comfort and welfare.'
"Thus it appears clear that Mr. Orkin is entitled to financial provision for his care, support, comfort and welfare whether it be from income or corpus... The trust should be so administered that there should be neither penurious policies on the one hand nor unbridled extravagance on the other... It appears from the trustees' answer and the evidence that for some time the trustees paid $4,000 per month plus some additional sums for Mr. Orkin and his wife. At another time the monthly amount was $4,500 per month and then $2,000. At other times $3,000 per month were supplied and shortly prior to the filing of this suit no sums were actually paid for a period of approximately ten days and since that time, according to the affidavit of William B. Stark, dated November 23, 1966 (page 4) `Provision has also been made by the trustees for the payment of household needs for Mrs. Orkin, such as groceries, laundry expenses, transportation *390 by continuance of the rental of the automobile, utilities, medical expenses, domestic help and a weekly cash payment of $80 per week.' No detail of the `provision' referred to was given and it is therefore impossible for the court to determine therefrom that the trustees have carried out their duties under the trust instrument and under the law... It is undisputed also that the attorneys for Mrs. Orkin who defended her in the criminal cases have not been paid. It also appears that no provision has been made for dental expenses of Mr. and Mrs. Orkin. The weekly cash payment of $80 per week to Mrs. Orkin would seem prima facie to be somewhat parsimonious under all the circumstances disclosed by the evidence in this case...
"Another feature of the case is the fact that the prosecution of the present Mrs. Orkin was apparently instigated by one of the trustees who says he was acting in his individual capacity and not as a trustee in his actions against the present Mrs. Orkin, the wife of Mr. Orkin. It also appears from the evidence before me that one of the attorneys for the trustees was active in the prosecution of the actions against Mrs. Orkin in Cobb County. The decisions here made have to take into account not only the background as referred to above but also the pattern of conduct engaged in by the trustees in connection with their disbursement of funds to or for the benefit of Mr. Orkin. Regardless of the obligations owned to the residual beneficiaries it is clear that the primary and major purpose of the trust instrument was to provide a secure and adequate support, maintenance and upkeep of Mr. Orkin for the balance of his life. Mr. Orkin should not be supported in a meager manner in order to preserve some corpus for distribution to the residual beneficiaries. On the other hand he deserves that support which would enable him to live comfortably in accordance with his standard of living and his station in life and the amount of money there is to carry out the primary purposes of the trust. The preservation of the corpus of the trust for the residual beneficiaries (related to one of the trustees) should not be given priority over the adequate support of Mr. Orkin... Some of the evidence as to the actions of the trustees about Mrs. Orkin indicate that they have been prompted in some measure by an attitude of *391 vindictiveness. The employment of attorneys for her originally stemmed from the action of one of the trustees and one of the attorneys for the trustees in instigating criminal prosecution against her. True they say such action was taken by them in their individual capacity. The subtle shifting of hats from trustee to individual is a little too artful for the court to be convinced of absolute purity in such Dr. Jekyll and Mr. Hyde roles. We might as well face realities as they are and concede that the individual trustees dislike the situation of Mrs. Orkin being the present wife of Mr. Orkin. But we must also be realistic in facing the fact that she is the wife of Mr. Orkin and see that such relationship does not impair the proper and responsible compliance by the trustees of their duties as trustees."
The facts found by the trial court being supported by the evidence, the contention that the trial court was without jurisdiction to interfere with the administration of the trust is without merit and the remaining questions to be decided are whether the individual expenditures directed to be made would have been proper under the evidence if made without direction of the court.
When the size of the trust as well as the funds furnished for the support of Otto Orkin prior to his being declared incompetent to manage his own affairs are considered it cannot be said the payments directed in the first three paragraphs of the judgment (for the support of Otto Orkin, medical expenses and allowance for his wife) are not authorized. In fact at times after Otto Orkin was declared incompetent the trustees furnished approximately the same amount decreed by the court to be furnished, while at other times they refused to furnish any money for his and his wife's support.
2. The next question for determination is whether the judgment directing the payment of attorneys' fees for services rendered the wife was proper. Pretermitting the question that no amount was set in the judge's order, it is without question that a husband is bound to provide necessaries for his wife. Code § 53-510. In Thigpen v. Maddox & Griffin, 56 Ga. App. 464, supra, the Court of Appeals held that a husband was liable for attorneys' fees incurred to defend the wife in a lunacy proceeding *392 instituted against her by her husband. The need for an attorney in such circumstances is certainly a necessity. No less is the need for an attorney when one is indicated for a criminal offense by the grand jury as was the situation in the case sub judice. The indictments did not arise out of her affairs outside the marriage but were the direct result of her guardianship of her husband. The responsibility of a solvent husband to furnish counsel for his wife in such circumstances cannot be seriously doubted, nor can it be seriously contended that the trust agreement requiring the trustees to provide for the "care, support, comfort and welfare" of Otto Orkin did not include the responsibilities placed upon him by law to "support" his wife and provide her with necessaries. As to the payment of necessaries to the wife from such a trust, see Bailie & Brother v. McWhorter, 56 Ga. 183 (1). The trial court did not err in directing that attorneys' fees be paid for representing Mrs. Orkin in the criminal cases.
Attorneys' fees were also directed to be paid for representing the Orkins in obtaining relief in the case sub judice. While the plaintiff sought in her own behalf and as next friend of her husband Otto Orkin to obtain support, it is an action in equity to require the proper administration of a trust, and under the decision in Ewing v. First Nat. Bank of Atlanta, 209 Ga. 932 (76 SE2d 791), and the cases there cited, the trial court could properly consider the request for attorneys' fees. The evidence showed that the action was necessary to obtain a proper administration of the trust and it was necessary to hold the trustees to their line of duty under the trust in properly providing support for Otto Orkin and his wife, the beneficiaries of the trust during the lifetime of Otto Orkin. Accordingly, the trial court did not err in ordering the payment of attorneys' fees to the plaintiff.
The remaining enumeration of error, which in effect held the matter of past expenses in abeyance until it could be determined from additional evidence which past due expenses were the responsibility of the trust and which were not, shows no error.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., Almand, P. J., and Grice, J., who dissent.
*393 ALMAND, Presiding Justice, dissenting. With due deference to the opinion of the majority under the record as I view it, I am compelled to dissent. Under the trust agreement set up inter vivos by Mr. Orkin, the designated trustees were authorized in the event of Mr. Orkin's incapacity for any reason "to pay and/or use so much of the net income as they deem necessary for his care, support, comfort and welfare" with the right to encroach upon the corpus of the trust "in such amounts and at such times as they deem proper for donor's care, support, comfort and welfare." It is well settled that where the instrument creating the trust confers upon the trustees a broad discretionary power to be exercised according to their judgment, a court of equity will not interfere to control the trustees acting bona fide in the reasonable exercise of their discretion. Semmes v. Mayor &c. of Columbus, 19 Ga. 471, 489; Turner v. Trust Co. of Ga., 214 Ga. 339 (105 SE2d 22). The evidence in the record does not authorize a finding that the trustees' acts in administering the trust were in bad faith.
I am of the further opinion that the trust fund can not be used to pay counsel for Mrs. Orkin in representing her in criminal cases growing out of her acts as guardian for her husband, nor is the trust fund liable for the expenses of bringing the present action. Neither of these acts of her counsel sought for its purpose to preserve or conserve the trust estate. The case of Ewing v. First Nat. Bank of Atlanta, 209 Ga. 932 (76 SE2d 791) does not support the appellees' claim. In that case the beneficiary of the trust estate was contesting an effort on the part of the trustees and others to violate the terms of the testator's will. It was held that the beneficiary's efforts being to protect, conserve and preserve the trust estate, she was entitled to be heard on her claim for counsel fees.
Chief Justice Duckworth and Justice Grice concur in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351524/ | 653 N.W.2d 804 (2002)
In re Alan Robert WEBER, Petitioner, Respondent,
Beth Marie Dalbec, Respondent,
v.
W.P.W., Appellant, and
In re Alan Robert Weber, Petitioner, Appellant,
v.
Beth Marie Dalbec, Respondent.
Nos. CX-02-791, C2-02-820.
Court of Appeals of Minnesota.
December 10, 2002.
*806 S. Warren Gale, S. Warren Gale Law Office, P.A., Bloomington, MN, for respondent Alan Weber.
Jeffrey P. Hicken, Hicken, Scott & Howard, P.A., Anoka, MN, for respondent Beth Dalbec.
Stuart E. Gale, Stuart E. Gale Law Offices, Bloomington, MN, for appellant W.P.W.
Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
*807 OPINION
HALBROOKS, Judge.
In this consolidated appeal, appellant W.P.W. disputes the district court's denial of his motion to appoint a guardian ad litem under Minn.Stat. § 525.6175 (2000), the statute governing the appointment of guardians in probate matters, and appellant Alan Weber challenges the district court's refusal to conduct an evidentiary hearing on his motion to modify custody. Because (1) Minn.Stat. § 525.6175 applies to the appointment of guardians in probate matters only, (2) Weber failed to establish a prima facie case for modification under the Nice-Petersen factors and Minn.Stat. § 518.18(d) (Supp.2001), (3) the district court's order did not violate W.P.W.'s right to counsel, and (4) the remaining issues raised do not provide a basis for relief, we affirm.
FACTS
This matter arises out of a very acrimonious custody battle. The marriage of appellant Alan Robert Weber and respondent Beth Marie Dalbec was dissolved on February 2, 1998. Following the parties' stipulation, the court awarded Dalbec sole legal and physical custody of the couple's children, appellant W.P.W. (now age 15) and C.W.W. (now age ten). Weber was granted reasonable and liberal visitation.
On December 21, 2001, W.P.W. brought a motion pursuant to Minn.Stat. § 525.6175 (2000) to appoint his maternal uncle, Bradley Dalbec, as his guardian ad litem (GAL). W.P.W.'s objective in making the motion was so that Bradley Dalbec could assist him with a motion for a change of custody to live with his father.
On January 22, 2002, Beth Marie Dalbec filed a motion, inter alia, to dismiss W.P.W.'s motion and to obtain supervised visitation between W.P.W. and Weber. In her responsive affidavit, Dalbec alleged that Weber manipulated and emotionally harmed W.P.W.
On February 14, 2002, W.P.W. filed a second motion that sought a change of permanent and temporary physical custody to his father subject to reasonable visitation with his mother. Weber simultaneously filed a motion, seeking, inter alia, to obtain permanent and temporary physical custody of both minor children and to appoint Bradley Dalbec as GAL for both minor children. Dalbec opposed both motions.
On March 8, 2002, the court issued an order denying, with prejudice, W.P.W.'s motion for the appointment of Bradley Dalbec as GAL and his motion for a change in custody. The court found that W.P.W. lacked standing to bring a motion for change of custody and that the procedure for appointment of a GAL in family law cases is properly set forth in Minn. R. Gen. Pract. 904.01 and not Minn.Stat. § 525.6175.
The court dismissed, without prejudice, Weber's motions for modification of custody and a finding that the property settlement was fully paid on the basis that the motions were untimely. The court ordered the appointment of a GAL and scheduled an evidentiary hearing for April 26, 2002, on the issues of whether or not Weber's visitation should be restricted and whether his child support obligation was commensurate with the child support guidelines. The court also ordered the GAL to issue a report on the visitation issue and ordered Weber to produce pertinent wage information before the hearing. Additionally, the court ordered that the attorney for W.P.W. and Weber's attorney should not meet with or discuss issues relating to the litigation with the children without first bringing a motion before the court.
*808 In a report dated April 10, 2002, the GAL expressed concern that, "Mr. Weber and [W.P.W.] use the exact same words and phrases [in reference to Dalbec and the court proceedings]," and that "[t]he parroting was incredible." The GAL also reported that W.P.W. said that Weber helped him to "set my mom up" and "encouraged" misbehavior to cause his mother to "throw" him out. The GAL noted that, "[n]either child indicated being in any type [of] emotional or physical danger or being neglected [by Dalbec]." The GAL concluded that, although Weber had endangered W.P.W.'s emotional health and impaired his emotional development by putting him in the middle of a bitter custody dispute, supervised or restricted parenting time would not benefit W.P.W. because of his age and his bond to his father. She recommended a 30-day break from visitation with Weber so that Dalbec could "regain control of her home" and that the parents communicate through the visitation expeditor and not through the children.
The court held the scheduled hearing on April 26, 2002. After reviewing the GAL's report and listening to counsel's arguments on the custody issue, the court determined that (1) there had been a significant change of circumstances based on W.P.W.'s change in preference to live with Weber, but that the change resulted from Weber's manipulation of W.P.W.; (2) Weber's insistence on involving W.P.W. in the custody dispute, despite a court order prohibiting such conduct; failure to hold W.P.W. accountable for bad behavior; and lack of support for W.P.W.'s ongoing involvement with Dalbec resulted in endangerment of W.P.W.'s emotional health and impairment of his emotional development; (3) there was no showing of endangerment of W.P.W. while in Dalbec's home; and (4) W.P.W. would be harmed by living with his father because of Weber's efforts to manipulate W.P.W. and alienate him from Dalbec. Weber's motion for an evidentiary hearing on the change-of-custody motion was denied on the ground that Weber had failed to establish a prima facie case.
ISSUES
1. Did the district court err in denying W.P.W.'s motion for the appointment of a guardian ad litem of his choice under Minn.Stat. § 525.6175 (2000), a probate statute?
2. Did the district court abuse its discretion by denying Weber an evidentiary hearing on his change-of-custody motion?
3. Did the district court improperly preclude the attorney for W.P.W. and the attorney for Weber to discuss any issue relating to the litigation, child custody, or visitation with W.P.W. without first obtaining the court's permission?
ANALYSIS
I. Guardian Ad Litem
Relying on Minn.Stat. § 525.6175 (2000), a probate statute, W.P.W. argues that the district court erred by failing to appoint the GAL of his choosing. Minn. Stat. § 525.6175 provides that the court shall appoint a guardian nominated by a minor in a probate proceeding, "if the minor is 14 years of age or older, unless the court finds the appointment contrary to the best interests of the minor."
W.P.W. cites Ross v. Ross, 477 N.W.2d 753, 756-57 (Minn.App.1991), in support of his argument that Minn.Stat. § 525.6175 applies in a custody proceeding. The issue before us in Ross was whether the father, the noncustodial parent, was entitled to an evidentiary hearing on his motion for modification of custody. Id. at 755. We concluded *809 that the father's affidavit created a prima facie case of endangerment to the child's health or emotional well being that necessitated a hearing. Id. at 756. In reaching that conclusion, we relied, in part, on the age of that child (17) and noted that Minnesota law does sometimes give deference to the choice of an older teenager, citing Minn.Stat. § 525.6175. Id. But Ross does not stand for the proposition that Minn.Stat. § 525.6175 is applicable to a custody-modification proceeding in a family law context.
Indeed, Minn.Stat. § 525.6175 should not apply to the appointment of a GAL in a custody-modification proceeding because a guardian in a probate matter possesses significantly different powers and duties than a guardian in a family law matter. See Minn.Stat. § 525.619 (2000). The district court did not err in concluding that, "[t]he goal in [family law] cases is `the prompt appointment of an independent guardian ad litem to advocate for the best interests of the child.'" Minn. R. Gen. Pract. 904.03.
II. Custody Modification
Weber disputes the district court's denial of his motion to modify custody without conducting an evidentiary hearing. This court applies an abuse-of-discretion standard in reviewing a district court's decision to dismiss a custody-modification petition without an evidentiary hearing. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App. 1997). We defer to the opportunity of the trial court to assess the credibility of the witnesses. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (citing Minn. R. Civ. P. 52.01).
The party seeking a custody modification must submit an affidavit asserting sufficient justification for the modification. Minn.Stat. § 518.185 (2000). To obtain an evidentiary hearing on a custody-modification petition, the moving party must establish the following four elements of a prima facie case: (1) a change in the circumstances of the child or custodian, (2) that a modification would serve the best interests of the child, (3) that the child's present environment endangers his physical or emotional health or emotional development, and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change. Geibe, 571 N.W.2d at 777-78.
In determining whether the moving party has established a prima facie case, the district court must accept the facts in the moving party's affidavit as true. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). If the moving party's affidavit does not allege facts that, if true, would provide sufficient grounds for modification, the court need not grant an evidentiary hearing. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn.App.1989), review denied (Minn. June 21, 1989). But if some dispute exists as to whether the present environment endangers the child's emotional development, an evidentiary hearing would be helpful and is justified. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.App. 1991). Here, appellant's affidavits do not allege facts that warrant a separate evidentiary hearing.
A. Change in Circumstance
To warrant modification of custody, the change in circumstances must be significant and must have occurred since the original custody order. Roehrdanz, 438 N.W.2d at 690. Moreover, the change in circumstances must endanger the child's physical or emotional health or development. Nice-Petersen, 310 N.W.2d at 472 (citing Minn.Stat. § 518.18(d)(iii) (1980)). A child's preference to live with a different parent may constitute a change in circumstances *810 sufficient to warrant an evidentiary hearing. Geibe, 571 N.W.2d at 778. But a stated preference does not, by itself, mandate that the court hold an evidentiary hearing. Id. Most importantly, a district court may deny an evidentiary hearing "where it is obvious from the record that a child's stated preference results from manipulation by the moving party." Id. Although the district court must disregard any directly contradictory statements in the nonmoving party's submissions, it "may take note of statements in [the nonmoving party's submissions] that explain the circumstances surrounding the [moving party's] accusations." Id. at 779.
Here, the district court determined that W.P.W.'s "expressed preference" to live with his father "[was] significant and [had] occurred since the last custody order," but that W.P.W.'s "expressed preference for a change in custody resulted from manipulation by his father." The record supports the district court's finding of manipulation.
The district court relied in part on the GAL's conclusion that the change of circumstances resulted from Weber's manipulation of W.P.W. The district court also properly took note of statements in Dalbec's affidavit that explained the circumstances. Taken together, the record supported the conclusions that
the signs of alienation could not be more cleara campaign of hatred, a failure of guilt on the minor child for treating the parent with malice, the parroting of adult language, and a declaration of independence.
The record reflects that the district court determinations were not clearly erroneous, so we will not disturb the conclusion that manipulation was a factor in this case.
B. Best Interests of the Child
A child's best interests are determined according to the factors listed in Minn.Stat. § 518.17 (2000). Geibe, 571 N.W.2d at 778. The district court noted that Weber failed to directly address W.P.W.'s best interests in either of his affidavits. Because of the absence of the best-interests factors discussed by Weber, the court again relied on findings by the GAL. The GAL did not believe that a change in custody would be in W.P.W.'s best interests. For example, the GAL's discomfort with the fact that Weber continued to involve W.P.W. in the details of the custody and dissolution, contrary to the court's order, weighs against the best-interests factor considering "the interaction and interrelationship of the child with a parent or parents [and] siblings." Minn. Stat. § 518.17, subd. 1(5). The GAL's belief that Weber would not support W.P.W.'s continued relationship with his current primary caregiver, his mother, who would also retain custody of his brother, weighs against the above factor and the "intimacy of the relationship between each parent and the child." Id., subd. 1(4), (5). The GAL also evidenced concern that Weber did not hold W.P.W. accountable for his own bad behaviors, which could result in problems in school and in the community. Id., subd. 1(6). Moreover, although the best-interests-of-the-child factors include a consideration of the child's preference, as discussed above, the record supports the district court's finding that the preference stems from manipulation by Weber. Even after reviewing the facts alleged by Weber and taking the facts to be true, the district court determined that those facts did not support a finding that modification would be in the best interests of W.P.W. In this regard, the court did not abuse its discretion.
*811 C. Endangerment
Weber makes two primary endangerment arguments: (1) that Dalbec abused W.P.W., and (2) that the denial of a teenager's custodial preference demonstrates endangerment.
Allegations of physical and emotional abuse are indicators of endangerment, but only when the degree of danger is significant. Ross, 477 N.W.2d at 756. A district court may properly deny an evidentiary hearing where the affidavit submitted in support of a modification of custody "was devoid of allegations supported by any specific, credible evidence." Axford v. Axford, 402 N.W.2d 143, 145 (Minn.App.1987). Importantly, in order to establish danger to a child's welfare, a parent's conduct must be shown to result in an actual adverse effect on the child. Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn.App.1994). For example, behavioral problems and poor school performance by the child have served as indications of endangerment to a child's physical and emotional health. Kimmel v. Kimmel, 392 N.W.2d 904, 908 (Minn.App.1986), review denied (Minn. Oct. 29,1986).
Weber alleges that Dalbec pulled C.W.W. downstairs by a leg, that Dalbec often yelled obscenities, heaped physical and emotional abuse on the boys, and that one Easter, she pulled W.P.W. off the couch by his hair while screaming at him because he had dirt on his pants. The record shows that Weber petitioned for, and was denied an order for protection for the minor children when Dalbec allegedly "stomped" on W.P.W. But in order to establish danger to a child's welfare, Weber must show that Dalbec's conduct resulted in an actual adverse effect on the child. Weber presented no evidence demonstrating any such adverse effect. In this case, the district court rejected Weber's allegations because he failed to allege specific facts and because the allegations presented in Weber's affidavits were not supported by first-hand knowledge. The court also relied on the GAL's report, which found no evidence of physical or emotional endangerment of W.P.W. in the mother's environment. We conclude that the district court did not abuse its discretion.
Weber next argues that, "[t]he choice of an older teenage child is an overwhelming consideration in * * * deciding whether he is endangered by preserving the custodial placement he opposes." Ross, 477 N.W.2d at 756. But while a child's preference may justify an evidentiary hearing, a child's preference does not alone provide sufficient evidence of endangerment. Geibe, 571 N.W.2d at 778-79.
In Ross, the appellant established a prima facie case because the teenage child held a strong preference to live with his father, the child physically relocated to the father's home, and the child suffered emotional distress that led to poor school performance. Ross, 477 N.W.2d at 754. Here, by contrast, the record demonstrates only that the child wishes to change custody. Because none of the other endangerment elements are present and a change in preference alone does not prove emotional endangerment, Geibe, 571 N.W.2d at 779, the district court did not abuse its discretion in determining that evidence did not establish endangerment.
D. Balance of Harm
Appellant must next show that the advantage of modifying custody outweighs the harm likely to be caused by the change. Roehrdanz, 438 N.W.2d at 690. Minnesota law presumes that stability in custody is in a child's best interests. Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn.App.1990). While Minnesota courts *812 have sometimes endorsed an older child's custody preference, those cases have predominantly involved the preference to remain in the present arrangement or to return to a previous long-term custodial arrangement. Geibe, 571 N.W.2d at 780. Here, by contrast, the district court found that Weber's affidavits failed to establish that W.P.W.'s desire to change living arrangements, and to live with a parent with whom he had never lived before, would benefit the child. Because W.P.W. was not endangered living with Dalbec, and because Weber's permissive parenting and manipulation would harm W.P.W., the district court did not abuse its discretion in concluding that the benefit of custody modification would not outweigh the harm likely to be caused by the change.
III. Attorney Contact
W.P.W. claims that paragraph 21 of the district court's March 3, 2002 order prohibits W.P.W.'s attorney from meeting with him under any circumstances. W.P.W. contends that because he was on probation to the Wright County Court Services, and could face further penalties, Minn. R. Juv. P. 15.07 requires that he have access to counsel.
The express language in the order belies W.P.W.'s reading of the order. The order states that:
The attorney for the minor child and the attorney for Petitioner shall not meet with the minor children or discuss any issues relating to this litigation, child custody or visitation with the minor children. * * * If the attorney representing Petitioner wishes to meet with either minor child, he shall bring a motion before the Court requesting permission to do so.
The order does not preclude W.P.W. from discussing any issues relating to probation or other juvenile protection with his attorney. The court merely precludes the attorney from discussing custody issues. In the context of this acrimonious proceeding, where the father was found to be alienating his son from his mother, this limitation was not an abuse of the court's discretion.
Weber and W.P.W. raise several other issues on appeal. They argue that the court erred in (1) appointing a GAL to conduct parenting-time studies and other investigations, (2) ignoring the untimeliness of Dalbec's motion and not granting a continuance, (3) denying W.P.W.'s standing to seek relief in his parents' dissolution proceeding, and (4) denying a continuance for an allegedly untimely motion, and that on remand, the court should be directed to recuse itself in light of the "personal opinions" expressed in the order. After fully examining these additional issues, we conclude that they lack merit.
DECISION
The district court did not err in concluding that W.P.W. may not rely on Minn. Stat. § 525.6175 (2000), a probate statute, for the appointment of a guardian ad litem in a custody-modification proceeding. Further, the district court did not violate W.P.W.'s right to counsel or abuse its discretion by denying Weber's motion for modification of custody without an evidentiary hearing.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351526/ | 223 Ga. 419 (1967)
156 S.E.2d 55
TALLEY
v.
SUN FINANCE COMPANY.
24104.
Supreme Court of Georgia.
Argued June 12, 1967.
Decided June 22, 1967.
Harbin M. King, for appellant.
McDonald, Longley, McDonald & McDonald, E. Crawford McDonald, Hansell, Post, Brandon & Dorsey, Allen Post, J. William Gibson, for appellee.
DUCKWORTH, Chief Justice.
1. The judgment complained of shows that it was determined after consideration of stipulations as to the existing indebtedness and payments made thereon together with the defense of usury in that the Georgia Industrial Loan Act of 1955 (Ga. L. 1955, p. 431) is a special law in violation of the Constitution, Art. I, Sec. IV, Par. I (Const. of 1945; Code Ann. § 2-401) by allowing greater rates of interest than the general law thereon (Code § 57-101). *420 Since the stipulations as made are not a part of the record no review can be made to determine whether a jury question was involved as to the amount of the judgment found to be due on the indebtedness. We find no merit in the errors enumerated claiming it was a jury questions as to the amount due.
2. The Industrial Loan Act of 1955 (Ga. L. 1955, p. 431) operates generally upon the entire class of subjects with which it deals uniformly throughout the State and in the same manner generally as the usury statute (Code § 57-101) which counsel insists is the controlling general legislation on the subject matter. While the usury statute is a general law, the Industrial Loan Act is likewise a general law, and the legislature had the right to classify these small loans, provided the law operates uniformly throughout the State and affects all persons coming within its terms. See Sasser v. Martin, 101 Ga. 447 (29 SE 278); Cook v. Equitable Bldg. &c. Assn., 104 Ga. 814 (30 SE 911); Union Savings Bank v. Dottenheim, 107 Ga. 606 (34 SE 217); South Ga. Mercantile Co. v. Lance, 143 Ga. 530 (85 SE 749); Badger v. State, 154 Ga. 443 (114 SE 635); Family Finance Co. v. Allman, 174 Ga. 467 (163 SE 143); National Finance Co. v. Citizens Loan &c. Co., 184 Ga. 619 (192 SE 717). There is no merit in the constitutional attack made.
3. No argument was made as to the validity of the other constitutional attack by counsel, and it is deemed to be abandoned.
4. We find nothing in the record to show that the motion to produce certain documents was insisted on by counsel at the time of trial and no ruling was obtained on this failure to produce. The enumeration of error complaining of the failure to produce is without merit. Code Ch. 38-8.
5. Having considered all of the errors enumerated and finding none with merit, we find no error in the judgment.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351541/ | 115 Wn.2d 794 (1990)
802 P.2d 116
THE STATE OF WASHINGTON, Respondent,
v.
DIANE ELAINE BOWERMAN, Petitioner.
No. 57047-7.
The Supreme Court of Washington, En Banc.
December 13, 1990.
*796 Julie A. Kesler, Jesse Wm. Barton, and Suzanne Lee Elliott of Washington Appellate Defender Association, for petitioner.
Norm Maleng, Prosecuting Attorney, and Theresa L. Fricke, Deputy, for respondent.
UTTER, J.
A jury found Diane Bowerman guilty of aggravated first degree murder. In an unpublished opinion, the Court of Appeals affirmed the conviction. We granted her petition for review to consider the following questions:
(1) Since Bowerman was charged in the alternative with felony murder, to which if she pleaded guilty she would have received a maximum penalty of life with the possibility of parole, and aggravated first degree murder, does her sentence of life in prison without the possibility of parole unconstitutionally penalize her for exercising her right to trial?
(2) Did the trial court's refusal to grant instructions on the lesser included offenses of second degree murder and first and second degree manslaughter require reversal?
(3) Was she denied effective assistance of counsel?
After considering all of these issues, we affirm the conviction and sentence.
On August 4, 1987, James Hutcheson killed Matthew Nickel by striking him several times in the head with a tire *797 iron. The next day the King County prosecutor filed an information accusing Diane Bowerman (Nickel's co-worker and former girl friend), Diane Peterson, and Hutcheson of premeditated first degree murder. The State later amended the information to charge Hutcheson with killing Nickel pursuant to an agreement that he receive money for the murder.[1]
On October 22, the State filed a third amended information accusing Bowerman of committing aggravated murder in the first degree by paying Hutcheson to kill Nickel. On that same day, defense counsel informed the State that Bowerman would present a diminished capacity defense at trial.
On the first day of the trial, in contemplation that the jury might accept Bowerman's diminished capacity claim, the State moved to amend the information to add a count of first degree felony murder. The prosecutor characterized her amendment as merely adding a lesser included offense to the information. The trial court ruled that the defense had adequate notice of the facts supporting the felony murder charge and allowed the amendment. Bowerman did not request a continuance.
During the trial Bowerman presented expert testimony that she was incapable of forming either the intent or the premeditation to kill Nickel. The defense theory of the case was that Bowerman contracted with Hutcheson merely to injure Nickel, and that she neither wanted nor contemplated Nickel's death.
At the close of the trial, defense counsel requested jury instructions for the lesser included offenses of second degree murder and first and second degree manslaughter. The trial court refused the offered instructions, and defense counsel timely objected. Over defense counsel's objection, the trial court did instruct the jury that felony first degree *798 murder was a lesser included offense of aggravated first degree murder.
The jury found Bowerman guilty of aggravated first degree murder. The court sentenced her to life without possibility of parole. In an unpublished opinion, the Court of Appeals affirmed the conviction and sentence.
I
Bowerman argues that her sentence unconstitutionally penalizes her for exercising her right to a jury trial. She bases her argument on the holding in United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968). In Jackson, the Supreme Court held the Federal Kidnapping Act unconstitutional, since the act imposed a greater penalty on those who were convicted by a jury than it did on those who pleaded guilty. Bowerman asserts that the sentence she received is greater than the one she would have received if she pleaded guilty. Therefore, she argues, her sentence is unconstitutional. In order to invoke the Jackson doctrine, Bowerman first raises several issues related to the amendment of the information, the trial court's failure to rearraign her on the fourth amended information, and her right to plead guilty.
Bowerman argues that the trial court erred in not rearraigning her on the fourth amended information containing the felony murder charge. If the trial court had rearraigned her, Bowerman asserts, she had a right to plead guilty to just the felony murder charge, thereby foreclosing any trial on the aggravated murder charge. She does not argue that any of these alleged errors by themselves require reversal of her sentence. Instead, she raises these issues because she believes she needs to assert her right to plead guilty in order to raise the Jackson issue. The Jackson analysis does not, however, hinge on whether the defendant has a right to plead guilty. Instead, the focus is on whether the statutory scheme unconstitutionally infringes defendant's right to trial. Nonetheless, we will briefly discuss Bowerman's claim that she had a right to plead guilty to *799 the felony murder portion of the amended information, and that she would have thereby avoided the greater penalty associated with a trial on the aggravated murder charge.
A
[1, 2] There is no constitutional right to plead guilty. Jackson, 390 U.S. at 584; State v. Martin, 94 Wn.2d 1, 4, 614 P.2d 164 (1980). However, the State may confer a statutory right to plead guilty. North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 27 L.Ed.2d 162, 91 S.Ct. 160 (1970); Martin, 94 Wn.2d at 4. In State v. Martin, supra, this court held that CrR 4.2(a)[2] grants a criminal defendant the right to plead guilty "unhampered by a prosecuting attorney's opinions or desires." Martin, at 5. However, that right is not, as Bowerman asserts, a right to plead guilty to just one alternative means of committing a crime when more than one means is charged. The statutory right to plead guilty is a right to plead guilty to the information as charged.
In State v. Duhaime, 29 Wn. App. 842, 631 P.2d 964 (1981), review denied, 97 Wn.2d 1009 (1982), the defendant went to trial on several charges. Count 3 of the information charged the defendant with having committed premeditated murder in the first degree and felony murder. Midtrial the defendant attempted to enter a plea of guilty to just the felony murder portion of count 3. The judge refused to accept the guilty plea, and the jury found the defendant guilty of premeditated murder. The Court of Appeals upheld the conviction, noting that nothing in Martin or the court rules requires that a defendant be allowed to plead guilty to a lesser offense solely to avoid the harsher punishment of the greater offense. Duhaime, 29 Wn. App. at 854. In essence, the Duhaime court held that the right to plead guilty is only a right to plead as charged.
[3, 4] Bowerman's situation is similar to that of the defendant in Duhaime. Count 1 of the fourth amended *800 information charged Bowerman with the single crime of first degree murder. The count alleged two alternative ways of committing that single crime: (1) aggravated, premeditated murder, and (2) felony murder. Premeditated murder and felony murder are not separate crimes. They are alternate ways of committing the single crime of first degree murder. State v. Ellison, 36 Wn. App. 564, 574-75, 676 P.2d 531, review denied, 101 Wn.2d 1010 (1984). Where there are alternate ways to commit a crime it is permissible to charge both alternatives in the same count. State v. Scott, 64 Wn.2d 992, 993, 395 P.2d 377 (1964). Had Bowerman been rearraigned on the amended information, she would have been rearraigned on both alternate ways of committing the one crime of first degree murder charged in count 1. At that time she would have had a statutory right to plead guilty to first degree murder. She would not have had the right to choose one portion (felony murder) of the charges against her and plead guilty to just that portion of the charge.
This is consistent with our holding in State v. James, 108 Wn.2d 483, 739 P.2d 699 (1987). In James, the defendant entered a not guilty plea to a charge of second degree murder. After further investigation the State amended the information to charge premeditated first degree murder. The defendant opposed the amendment, and sought to plead guilty to the original charge of second degree murder. The trial court refused defendant's guilty plea, and a jury found James guilty of first degree murder. In upholding the conviction, this court reasoned that allowing James to enter a plea of not guilty and then later demand the right to plead to the original charge would give him the right to enforce a mandatory plea bargain against the prosecutor's wishes. 108 Wn.2d at 489.
Accepting Bowerman's argument would have similar effects. It would allow defendants to force a plea bargain on a prosecutor anytime that prosecutor charges more than one means of committing a crime. It would also undercut the prosecutor's well-recognized discretion to determine *801 which charges to file.[3] The statutory right to plead guilty recognized in Martin cannot be stretched so far as to include a right to plead guilty to only one alternative means out of several that are charged. Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged.[4]
B
This brings us to petitioner's Jackson argument. In its third amended information, the State charged Bowerman with aggravated first degree murder in violation of RCW 10.95.020(4) (murder for hire) and RCW 9A.32.030(1)(a). The minimum penalty for aggravated first degree murder is life without possibility of parole. RCW 10.95.030(1).
On the first day of Bowerman's trial, the prosecutor amended the information to add an alternative allegation of felony murder.[5] The maximum penalty for felony murder is life in prison with a possibility of parole. RCW 9A.32.040. Bowerman argues that the statutory scheme under which she was charged forced her to make an unconstitutional choice. This claimed choice was between exercising her right to trial, and thereby facing a possible sentence of life without the possibility of parole, or pleading guilty to assure herself of the lesser sentence of life with a possibility of parole. She then concludes that such a statutory scheme unconstitutionally infringes her right to have a jury trial. Bowerman rests her argument on the holdings in three cases: United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968); State v. Frampton, 95 Wn.2d *802 469, 627 P.2d 922 (1981); Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir.1989), cert. denied, ___ U.S. ___, 108 L.Ed.2d 619, 110 S.Ct. 1483 (1990).
In United States v. Jackson, supra, the Supreme Court invalidated the death penalty portion of the Federal Kidnapping Act. The Court interpreted the act as imposing the death penalty only on people who were convicted by a jury. Therefore, a person could always avoid the death penalty by pleading guilty. The Court held that by confronting a defendant with the choice of pleading guilty, and thereby avoiding the death penalty, or going to trial and risking the death penalty, the act imposed an "impermissible burden" on the constitutional right to have a jury trial. 390 U.S. at 572.
In State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980), this court interpreted former RCW 10.94 as imposing the death penalty only on those people whom a jury found guilty of first degree murder. Following the Jackson reasoning, this court then struck down the state death penalty statute as imposing an unconstitutional burden on the right to trial. State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981). The Frampton court held, however, that it was not impermissible for a statutory scheme to set a maximum penalty of life with the possibility of parole for those who plead, while subjecting those who go to trial with a minimum sentence of life without the possibility of parole. 95 Wn.2d at 528-30 (Dimmick, J., concurring in part, dissenting in part (majority opinion on this issue)).
The Ninth Circuit Court of Appeals disagreed. It held that, due to the qualitative difference between the penalties, imposing a sentence of life without possibility of parole only on those who are found guilty by a jury also violates the defendant's right to a jury trial. Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir.1989), cert. denied, ___ U.S. ___, 108 L.Ed.2d 619, 110 S.Ct. 1483 (1990).
Bowerman argues that her sentence unconstitutionally infringes her Fifth Amendment right not to plead guilty and her Sixth Amendment right to a jury trial. Under *803 Bowerman's theory, she had two options. She could avoid life without possibility of parole by pleading guilty to the felony murder charge, or she could go to trial on the aggravated murder charge and risk a sentence of life without possibility of parole. Bowerman then asserts that the disparate sentences for those who plead guilty and those who go to trial unconstitutionally infringes her right to plead not guilty and her right to a jury trial. She then concludes that Jackson and Robtoy mandate reversal of her sentence.
[5, 6] Bowerman's reliance on Jackson is misplaced. Jackson addresses a statutory scheme where someone who pleads guilty to kidnapping faces a lesser maximum sentence than someone who has a jury trial on a kidnapping charge. Frampton and Robtoy each address a statutory scheme where someone who pleads guilty to first degree murder faces a lesser maximum sentence than someone who has a jury trial on a first degree murder charge. Those cases stand for the principle that a statutory scheme that punishes people charged with the same offense differently, depending upon whether they plead guilty or have a jury trial, is unconstitutional.
Washington's statutory scheme does not punish people differently based on how guilt is determined. A person who pleads guilty to felony murder faces the same maximum penalty as a person a jury convicts of felony murder. Similarly, a person who pleads guilty to aggravated murder faces the same maximum penalty as a person the jury convicts of aggravated murder. The statutes in Jackson, Frampton, and Robtoy treated people charged with the same crime differently depending upon whether they pleaded guilty or were found guilty by a jury. Under the current Washington statutes, however, people charged with the same crime face the same maximum penalty regardless of how their guilt is determined. The different maximum sentences that Bowerman faced were based upon which charge she was convicted of, not upon how her guilt was determined. Therefore, there is no unconstitutional infringement on her right to trial.
*804 It is true that a defendant faced with the possibility of pleading to felony murder or going to trial on a charge of aggravated murder may choose the former in order to assure receiving the lesser penalty. Therefore, the possibility of getting a more lenient sentence may cause some people to forgo their right to trial. The Supreme Court has made clear, however, that not every burden on the right to trial is unconstitutional. Corbitt v. New Jersey, 439 U.S. 212, 218, 58 L.Ed.2d 466, 99 S.Ct. 492 (1978).
In Corbitt, the Court upheld a New Jersey statute that prescribed a mandatory life sentence when a jury convicted a defendant of first degree murder. That same statute allowed a judge sentencing a defendant who pleaded nolo contendere to impose a lesser sentence than life in prison. The Court upheld the New Jersey statute because the potential maximum penalty was the same, regardless of whether the defendant pleaded or was convicted by a jury. 439 U.S. at 217. The fact that someone who pleads faces a potentially lesser penalty does not invalidate the statute. As the Corbitt Court noted:
[N]ot every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid. Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea....
....
... There is no doubt that [defendants willing to plead guilty] may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed....
(Footnotes omitted.) 439 U.S. at 218-19, 223-24.
The prosecutor in Bowerman's case added the alternative charge of felony murder in case the jury believed Bowerman's diminished capacity defense. That amendment was proper and did not violate Bowerman's rights. Bowerman was faced with the choice of pleading guilty to a charge of first degree murder or going to trial on a charge of first degree murder. The penalty is the same regardless of how *805 her guilt is determined. Therefore, her right to trial was not violated.
II
Bowerman next asserts the trial court erred in not granting her requested instructions on second degree murder, first degree manslaughter, and second degree manslaughter as lesser included offenses of aggravated murder.
[7] The right to present a lesser included offense to the jury is a statutory right.[6] A defendant is entitled to an instruction on a lesser included offense if two conditions are met.
First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.
(Citations omitted.) State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Under the facts of Bowerman's case the elements of aggravated first degree murder are: (1) causing the death of another; (2) premeditation; (3) intent to cause death; and (4) paying another to commit the crime. RCW 9A.32.030(1)(a); RCW 10.95.020(4). The elements of second degree murder are: (1) causing the death of another; and (2) intent to cause death. RCW 9A.32.050. It is clear that proving aggravated first degree murder necessarily includes proving all of the elements of second degree murder. Therefore, the elements prong of the Workman test is met. The question then becomes whether the facts support an inference that only second degree murder was committed.
Petitioner's theory of the case is that she hired Hutcheson to "rough up" the victim. She asserts that she did not intend to have the victim killed. The State argues that Bowerman's testimony that she contracted with Hutcheson to hurt Nickel shows premeditation. Premeditation is an *806 element of first degree murder, but it is not an element of second degree murder. Therefore, the State concludes, a second degree murder instruction is not appropriate, since Bowerman admits to premeditation.
The State's argument is incorrect. The premeditation Bowerman admits, if any, is the premeditated intent to injure Nickel. She did not admit a premeditated intent to kill him, and it is premeditated intent to kill that is an element of first degree murder. State v. Davis, 6 Wn.2d 696, 718, 108 P.2d 641 (1940); State v. Bingham, 40 Wn. App. 553, 555, 699 P.2d 262 (1985), aff'd, 105 Wn.2d 820, 719 P.2d 109 (1986).
[8] Nonetheless, the facts of this case do not support giving a second degree murder instruction. Second degree murder is intentional murder without premeditation. RCW 9A.32.050. The defendant asserted that, due to her diminished capacity, she did not have the intent to kill Nickel. If the jury believed Bowerman's defense then it could not have found her guilty of second degree murder. Therefore, the only choices the jury would have had were to find Bowerman guilty of aggravated first degree murder, or to find her not guilty of any crime. Under those circumstances, a lesser included instruction is not warranted. State v. Much, 156 Wash. 403, 410, 287 P. 57 (1930); State v. Snook, 18 Wn. App. 339, 346, 567 P.2d 687 (1977).
Defense counsel also requested lesser included jury instructions on first and second degree manslaughter. The elements of first degree manslaughter are causing the death of another and recklessness. RCW 9A.32.060(1)(a). The elements of second degree manslaughter are causing the death of another and criminal negligence. RCW 9A.32.070. The mental elements of recklessness and criminal negligence are lesser included mental states of intent. RCW 9A.08.010(2); State v. Jones, 95 Wn.2d 616, 621, 628 P.2d 472 (1981). Therefore, both degrees of manslaughter are necessarily proved whenever aggravated first degree murder is proved. First and second degree manslaughter meet the first prong *807 of the Workman test for lesser included offenses of aggravated first degree murder. The question then becomes whether the facts of the case support giving the lesser included instructions. We conclude that they do not.
Bowerman's diminished capacity defense only goes to negate her capacity to premeditate on, and form the intent to bring about, the death of Nickel. If the jurors believed Bowerman's defense,[7] they would have found her not guilty of aggravated first degree murder. That defense did nothing, however, to negate Bowerman's alternative charge of first degree felony murder. Intent and premeditation are not elements of first degree felony murder. See RCW 9A.32.030(1)(c). The only state of mind the prosecution need prove to establish felony murder is the state of mind necessary to commit the underlying felony. State v. Osborne, 102 Wn.2d 87, 93, 684 P.2d 683 (1984). There was no testimony that Bowerman could not form the intent to injure Nickel or to plan the illegal entry into his home. In fact, Bowerman's testimony establishes that she helped Hutcheson commit first degree burglary. Bowerman showed Hutcheson where Nickel lived, told Hutcheson about the broken lock on Nickel's door, and told Hutcheson when he could expect to find Nickel home alone. She admitted paying Hutcheson to attack Nickel, and she knew Hutcheson planned to hide in Nickel's apartment and attack him there. Therefore, Bowerman admitted knowing of and aiding Hutcheson's commission of first degree burglary.[8] Since she admitted being an accomplice in the first degree burglary, there was no evidence from which the jury could do anything other than find her guilty of first degree felony *808 murder. As such, there was no error in denying the first and second degree manslaughter instructions.
III
Bowerman also alleges she was denied the effective assistance of counsel. She specifically alleges that trial counsel inadequately cross-examined Darrell Seaver, a key state witness, and that trial counsel was "ill prepared" to deal with jury instructions.
[9] The standard for determining whether there was ineffective assistance is:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable....
Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). This court adopted the Strickland test in State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). When reviewing counsel's performance under the Strickland test there is a strong presumption that the performance was reasonable. Bowerman bears the burden of showing that, but for the ineffective assistance, there is a reasonable probability that the outcome would have been different. Thomas, 109 Wn.2d at 226 (quoting Strickland v. Washington, 446 U.S. at 694).
Bowerman asserts that trial counsel inadequately cross-examined Darrell Seaver. Yet the record shows counsel's cross sought to corroborate his theory of the case by eliciting responses that supported the defense of diminished capacity and that established Seaver as the person who gave Bowerman ideas on how to harm Nickel. Counsel also asked questions that cast doubt on the accuracy of Seaver's recollections of his discussions with Bowerman. Counsel's cross of Seaver takes up 27 pages of the trial transcript. There is nothing in that cross examination that indicates *809 counsel's performance fell below the objective standard of reasonableness mandated by Strickland.
[10] As to the alleged deficiencies in jury instructions, there is no showing that the instructions were insufficient or incorrect. Jury instructions are sufficient if they permit each party to argue his theory of the case and properly inform the jury of the applicable law. State v. Rice, 110 Wn.2d 577, 603, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 105 L.Ed.2d 707, 109 S.Ct. 3200 (1989). Other than the instructions that defense counsel excepted to, the instructions given allowed him to argue his theory of the case and accurately stated the law. Bowerman has made no showing that counsel's performance denied her a fair trial.
We affirm the conviction and the sentence.
CALLOW, C.J., and BRACHTENBACH, DOLLIVER, DORE, ANDERSEN, DURHAM, SMITH, and GUY, JJ., concur.
Reconsideration denied February 21, 1991.
NOTES
[1] A jury found Hutcheson guilty of first degree aggravated murder. Peterson pleaded guilty to rendering criminal assistance in the first degree.
[2] "A defendant may plead not guilty, not guilty by reason of insanity or guilty." CrR 4.2(a).
[3] See, e.g., State v. Judge, 100 Wn.2d 706, 713, 675 P.2d 219 (1984).
[4] Contrary to Bowerman's argument, even if she had been able to plead guilty to felony murder, that would not necessarily have prevented trial on the aggravated murder charge. See Ohio v. Johnson, 467 U.S. 493, 81 L.Ed.2d 425, 104 S.Ct. 2536 (1984) and State v. Netling, 46 Wn. App. 461, 731 P.2d 11, review denied, 108 Wn.2d 1011 (1987).
[5] She was charged specifically with a violation of RCW 9A.32.030(1)(c)(3).
[6] "In all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information." RCW 10.61.006.
[7] The fact that the jury found Bowerman guilty of aggravated first degree murder instead of the lesser alternative of felony murder shows that the jury rejected Bowerman's diminished capacity defense.
[8] "A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a dwelling and ... assaults any person therein." RCW 9A.52.020(1)(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351547/ | 653 N.W.2d 184 (2002)
In re Petition for DISCIPLINARY ACTION AGAINST David T. ERICKSON, an Attorney at Law of the State of Minnesota.
No. C1-87-1357.
Supreme Court of Minnesota.
November 14, 2002.
*185 David T. Erickson, Attorney Pro Se, Excelsior, MN, for Appellant's.
Martin A. Cole Acting Director, Timothy M. Burke, Senior Assistant Director, St. Paul, MN, for Respondent's.
Heard, considered and decided by the court en banc.
OPINION
PER CURIAM.
In this case we review the sufficiency of the evidence supporting the referee's finding that Respondent David T. Erickson failed to cooperate with the Director of the Office of Lawyers Professional Responsibility in the investigation of a complaint which was ultimately dismissed. We hold *186 that the Director proved noncooperation by clear and convincing evidence, and that the referee's finding of fact that Erickson "repeatedly and intentionally failed to cooperate with the Director's investigation into alleged misconduct by Respondent" is supported by the evidence. We also review the referee's recommendation that Erickson be publicly reprimanded and placed on unsupervised probation for four years for failing to cooperate with the Director in investigating a complaint which was ultimately dismissed, and we conclude that a stayed suspension from the practice of law for 30 days and unsupervised probation for four years is the appropriate discipline. We impose certain conditions on the stayed suspension and probation period.
Erickson was admitted to the practice of law in Minnesota on October 17, 1969. Erickson's disciplinary history indicates he has been disciplined on five previous occasions. In 1982, Erickson received a warning for failing to appear at an appellate pre-hearing conference, failing to inform the court that he would not appear, and failing to file a notice of withdrawal. Erickson was suspended from the practice of law for 30 days followed by four years of probation in 1987 for failing to timely file state and federal tax returns. In re Erickson, 415 N.W.2d 670 (Minn.1987). In 1993, he was suspended for 60 days for neglecting client matters, failing to maintain proper trust account books and records, using his trust account as a personal business account, and failing to cooperate with the disciplinary investigation. In re Erickson, 506 N.W.2d 628 (Minn.1993). He was subsequently reinstated and placed on probation for two years. During the probationary period, in 1994, Erickson received an admonition for bringing a motion in bad faith, failing to respond to multiple requests for payment of a sanction, and failing to timely pay the sanction. Finally, in 1996, Erickson received an admonition for improperly depositing nonrefundable flat fees in his business account, failing to cooperate with the conditions of his probation, and failing to respond to the Director's requests for information.
The current disciplinary matter arises out of a complaint filed with the Office of Lawyers Professional Responsibility by Erickson's daughter, Shelli Koehnen, on October 20, 1999. Koehnen alleged that Erickson had used her maiden name to apply for a credit card and had failed to pay the charges incurred. On October 27, 1999, the Director mailed notice of an investigation to Erickson at his home via regular mail, requesting that Erickson provide his complete written response within 14 days. The letter was not returned, and Erickson did not respond.
On November 18, 1999, the Director sent a second request for a response by certified mail, return receipt requested, to Erickson's home address. This mailing was unclaimed and returned to sender. On December 7, 1999, the Director sent a copy of the complaint to Erickson's business address, a post office box, at Erickson's request. On December 17, 1999, the same day Koehnen called the Director and asked to have her complaint withdrawn, Erickson wrote to the Director that "[t]his is a family matter" that "has been resolved and there is no need for further attention." As Erickson failed to address the allegations of the complaint in his letter, the Director sent a letter to Erickson's business address on December 29, 1999, explaining that the file would remain open and requesting a response within 10 days. Erickson did not respond to this letter, which was sent by regular mail and not returned. The Director sent a follow-up letter by regular mail to Erickson's business address on January 14, 2000. It was not returned to sender; Erickson did not respond.
*187 On February 17, 2000, the Director served Erickson by mail, sent to his business address, with charges of unprofessional conduct and notice of a March 7, 2000 pre-hearing meeting. The accompanying letter notified Erickson that his attendance was required at the prehearing meeting, but Erickson did not attend. A notice and petition for disciplinary action was issued on March 20, 2000. Attempts to personally serve Erickson at his home address were made on March 20, 21, 23, 28, and 30 and on May 18 and 19, 2000. Because the attempts at personal service were unsuccessful, the Director sent copies of the notice and petition by regular mail to Erickson's home address on July 5, 2000. This mailing was unclaimed and returned to sender. The Director sent by regular mail another copy of the notice and petition for disciplinary action and an application and proposed order for suspension under Rules on Lawyers Professional Responsibility (RLPR) Rule 12(c)(1) to Erickson at his home address on July 25, 2000. This mailing was unclaimed and returned to sender.
By order dated August 21, 2000, this court suspended Erickson from the practice of law under RLPR Rule 12(c)(1).[1] A copy of the order was sent to Erickson's home address by regular mail on August 28, 2000. It was unclaimed and returned to sender. On November 13, 2000, upon Erickson's motion to vacate the suspension, we ordered Erickson to "file with the Clerk of Appellate Courts within ten days * * * a valid address for personal service and a signed acknowledgement of service of the petition for disciplinary action." We stated that "[u]pon the filing of these documents, the August 21, 2000, suspension order * * * shall be vacated without further order from [the] court." Erickson served and filed his answer to the petition on December 6, 2000 and was reinstated.[2] The Director served Erickson by mail at his business address with a notice of deposition, and Erickson was deposed on December 20, 2000.
On January 4, 2001, the Director wrote to Erickson, requesting, by January 18, certain information and documents mentioned at the deposition. This letter was sent by regular mail to Erickson's home address, to his business address, to a Prior Lake address where Erickson sometimes stays, and to a Richfield address. Only the letter to the Richfield address was returned as an invalid address, but Erickson did not respond. The Director sent a follow-up letter on January 29, 2001. The letter was sent to Erickson's home, business, and Prior Lake addresses by certified mail, return receipt requested. The copy sent to Prior Lake was received on February 6, 2001, but Erickson did not respond. The Director made a third request for information and documents on March 1, 2001. This letter was sent by *188 certified mail, return receipt requested, and was received at Erickson's business address on March 16, 2001.
On March 15, 2001, the Director received a letter from Erickson dated February 13, 2001. Because this communication contained only some of the requested information and documents, the Director mailed a fourth request for information and documents on April 18, 2001 to all three valid addresses, via regular and certified mail, return receipt requested. The certified letters were unclaimed, but the letters sent by regular mail were not returned. The Director mailed a letter on April 25, 2001 to all three addresses, by both regular and certified mail, return receipt requested, requesting Erickson's signature authorizing the release of information to the Director regarding the credit card account at issue. Again, the certified letters were unclaimed; the letters sent by regular mail were not returned. A fifth request for information and documents was sent to all three addresses by regular and certified mail, return receipt requested, on May 3, 2001. The certified letters were unclaimed, and the letter sent by regular mail to the Prior Lake address was returned to sender, but the letters sent to Erickson's home and business addresses were not returned. The Director sent a second request for a signature on May 8, 2001. The certified letters, sent to all three addresses, were unclaimed, but the letters sent by regular mail were not returned.
On September 6, 2001, the Director served Erickson by mail with an amended and supplementary petition for disciplinary action which alleged that Erickson failed to cooperate with the Director's investigation through May 2001. This document was sent by regular mail to Erickson's three addresses. Only the mail addressed to the Prior Lake address was returned. Erickson did not respond. The Director served Erickson with interrogatories, requests for production of documents, and requests for admissions by regular mail sent to Erickson's three addresses on October 4, 2001. No mail was returned. On November 14, 2001, Erickson, the Director's attorney, and the referee had a telephonic scheduling conference. Erickson agreed to comply with all outstanding discovery requests within a short time, and a week later, Erickson faxed the Director his discovery answers. By letter dated November 26, 2001, the Director requested Erickson to provide full and complete responses to all discovery requests as Erickson had not responded to some requests and some responses were insufficient. This letter was faxed to Erickson and mailed, unreturned, to his business address. Erickson did not respond.
On November 30, 2001, the Director served and filed a motion to compel discovery. The motion was scheduled for a telephone hearing on December 17, 2001. Erickson's response to the motion was due December 10, 2001, seven days before the hearing, but Erickson failed to serve or file any responsive papers. By fax and mail dated December 3, 2001, the Director invited Erickson to contact the Director's Office to discuss Erickson's discovery responses. Erickson did not respond until December 14, 2001, the Friday before the scheduled Monday hearing. By order filed December 17, 2001, the referee ordered Erickson to provide interrogatory answers signed under oath, a waiver for credit card records, and all documents regarding the credit card company's lawsuit against Erickson by noon on December 19, 2001. Erickson complied with this order.
The referee granted a continuance at the initial scheduled referee hearing on January 3, 2002, for the Director to arrange for Koehnen's attendance. Koehnen *189 was not present at the second hearing on February 1, 2002, and, at the end of the hearing, the Director dismissed the allegation against Erickson that he had engaged in unprofessional conduct by obtaining a credit card under false pretenses. During the hearing, the Director offered into evidence documents sent by the Director to Erickson, Erickson's responses, and documentation of Erickson's receipt of the mailings and lack of response. They were admitted into evidence over Erickson's objections.[3] The Director also called Gary Hoese as a witness. Hoese, an employee of the Hopkins Post Office who works at the Minnetonka Carrier's Annex, testified that Erickson's home address is a valid address and that properly addressed mail is returned to the sender when unclaimed. Erickson testified that the addresses used by the Director were correct, and that he believed he had fully cooperated.
Based on the evidence presented, the referee concluded that "[t]he Director [had] proven by clear and convincing evidence that [Erickson] repeatedly and intentionally failed to cooperate with the Director's investigation * * *." Noting that Erickson has been disciplined five times in the past 20 years, two times for failing to cooperate with the investigation of a complaint, the referee recommended that Erickson be publicly reprimanded and placed on unsupervised probation for four years for failing to cooperate.
I.
Allegations of professional misconduct must be proven by "`full, clear and convincing evidence.'" In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989) (citation omitted). The clear and convincing standard of proof is met "where the truth of the facts asserted is highly probable." In re Moeller, 582 N.W.2d 554, 557 (Minn. 1998) (citations and internal quotations omitted). A referee's findings are not conclusive, but are subject to review on the record, however, where, as here, the hearing transcript is ordered. In re Jensen, 468 N.W.2d 541, 543-44 (Minn.1991); RLPR 14(e). On review, this court will uphold a referee's findings and conclusions unless they are clearly erroneous. In re Westby, 639 N.W.2d at 367. In other words, findings of fact will be reversed "`only if, upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made.'" In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998) (citation omitted). If the referee's findings are supported by the evidence, they will be upheld. In re Copeland, 505 N.W.2d 606, 608 (Minn.1993). Furthermore, a referee's findings are given great deference, especially where the findings rest on disputed testimony or on the respondent's credibility or sincerity. In re Jensen, 468 N.W.2d at 543.
Erickson argues that the Director has not met his burden of proof because the Director offered no testimony or documents to prove "specific allegations of non-cooperation." Therefore, he contends, as the Director did not prove noncooperation *190 by clear and convincing evidence, the referee's finding of noncooperation is based on speculation and the recommended discipline should not be imposed. He also argues that the exhibits admitted into evidence were excluded by the court as to content and only prove that the Director sent the documents. The Director contends that the record fully supports the referee's finding of fact and conclusion of law that Erickson "repeatedly and intentionally failed to cooperate," violating Minnesota Rules of Professional Conduct (MRPC) Rules 8.1(a)(3) and 8.4(d) and RLPR Rule 25.
On this record, we agree with the Director and the referee. Erickson failed to respond to mailings requesting a response delivered to him by mail or received by him via certified mail, dated: December 29, 1999; January 14, 2000; February 17, 2000; July 5, 2000; January 4, 2001; January 29, 2001; April 18, 2001; April 25, 2001; May 3, 2001; May 8, 2001; November 26, 2001; and November 30, 2001. Erickson also failed to respond in the manner requested by the Director. Erickson's response to the notice of investigation did not address the allegations of the complaint and was received about seven weeks after the Director mailed the initial notice of investigation, not within 14 days from receipt of the notice. Erickson provided, on March 15, 2001, some of the discovery documents requested by the Director on January 4, 2001 to be received by January 18, 2001. Additionally, Erickson, who had 30 days from October 4, 2001 to respond to discovery requests, did not respond for approximately 47 days. Furthermore, Erickson failed to answer some interrogatories and failed to produce the requested documents.[4] Erickson also failed to timely serve or file any responsive papers, due December 10, 2001, to the Director's November 30, 2001 motion to compel discovery. Finally, Erickson failed to appear at the March 7, 2000 prehearing meeting and failed to comply with the conditions in this court's order for vacating his suspension.
Additionally, the exhibits offered at the hearing, which set forth the Director's requests and memorialized Erickson's failure to respond, constitute proof of noncooperation. Except for the first two pages of exhibit 38, a letter written by a postal employee for which the referee sustained a hearsay objection, the referee admitted 44 exhibits for all purposes and cited to them as support for his findings. Only exhibit 16, documents regarding the underlying allegations of credit card fraud, was admitted for the limited purpose that the Director received the documents and that they referred to Erickson.
Furthermore, neither direct evidence of Erickson's uncooperative state of mind nor "mechanistic corroboration" of evidence is necessary to meet the clear and convincing standard. See, e.g., In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992) ("[I]n attorney discipline cases, often the only direct evidence available is that known by the attorney."); In re McDonough, 296 N.W.2d 648, 692 (Minn.1979) (concluding in judicial disciplinary case that "uncorroborated evidence may be clear and convincing if the trier of fact can impose discipline with clarity and conviction of its factual justification."); see also In re Gillard, 271 N.W.2d 785, 805 n. 3 (Minn.1978) (adopting the attorney disciplinary proceeding "full, clear and convincing" *191 standard of proof for judicial disciplinary decisions).
We conclude there is ample evidence in the record to prove by clear and convincing evidence that Erickson consistently failed to respond to the Director or supply him with requested information. We agree with the referee's statement that "[i]t is impossible to view [Erickson's] behavior in this case as anything other than an attempt to ignore the Director's investigation * * *" and decline to set the referee's finding of fact aside. We hold that the referee's finding that Erickson "repeatedly and intentionally failed to cooperate with the Director's investigation into alleged misconduct by Respondent" is supported by the evidence.
II.
In determining the appropriate discipline to impose, we look to similar cases for guidance and consider the nature of the misconduct, the cumulative weight of the rule violations, the potential harm to the public, and the harm to the legal profession. In re Sigler, 512 N.W.2d 899, 901 (Minn.1994); In re Getty, 452 N.W.2d 694, 698 (Minn.1990); In re Jones, 383 N.W.2d 303, 306 (Minn.1986) (considering "the nature of the ethical violations, the specific acts committed, any risk the public may be harmed if counsel is permitted to continue in the profession, and the preservation of the integrity of the bar as well as the system for the administration of justice."). Additionally, when an attorney is before this court on a subsequent disciplinary charge, "the discipline to be imposed must be reviewed in light of the earlier misconduct." In re Getty, 452 N.W.2d at 698. This court gives great weight to a referee's recommendation but makes the final determination of discipline. In re Terrazas, 581 N.W.2d 841, 845 (Minn.1998); In re Getty, 452 N.W.2d at 698.
We reiterate that because attorneys have an ethical duty to cooperate with the Director in investigating and resolving any complaints of unprofessional conduct, noncooperation with a disciplinary investigation is a serious offense which may warrant suspension. In re Olson, 545 N.W.2d 35, 38 (Minn.1996) (quoting In re Walker, 461 N.W.2d 219, 223 (Minn.1990)). In the past, we have suspended attorneys for failure to cooperate. For example, in In re Flatten, an attorney who was previously admonished for noncooperation in a disciplinary investigation failed to respond to repeated inquiries from the Director regarding a trust account overdraft over several months, failed to attend a prehearing meeting, and failed to cooperate in any manner in the disciplinary proceedings. 611 N.W.2d 340, 341 (Minn.2000). We held that indefinite suspension from the practice of law was the appropriate sanction. Id. at 342-43. Similarly, in In re Engel, the attorney had previously received an admonishment for neglect of a probate matter, failing to communicate adequately with clients, and failing to timely respond to investigators' inquiries. 538 N.W.2d 906, 906 (Minn.1995). This court held that the attorney's instant failure to respond to complaints of unprofessional conduct and failure to cooperate with any of the Director's efforts to investigate those complaints warranted an indefinite suspension from the practice of law. Id. at 907. Finally, in In re Cartwright, the attorney, over about two years' time, repeatedly refused to cooperate with disciplinary authorities concerning ethical complaints filed against him. 282 N.W.2d 548, 551-52 (Minn.1979). He committed additional ethics violations by borrowing $10,800 from his cousin but failing to secure it as promised and failing to repay it in full. Id. at 550-51. We suspended *192 Cartwright's license to practice law for six months. Id. at 552.
Depending on the extent of the failure to cooperate and on the particulars of the case, noncooperation may not justify suspension from the practice of law, however. In In re Stanbury, an attorney with a substantial disciplinary history failed to cooperate with the Director in a disciplinary investigation for ten months but cooperated thereafter. 614 N.W.2d 209, 210-12 (Minn.2000). This court publicly reprimanded Stanbury and placed him on unsupervised probation for two years. Id. at 214. In In re Terrazas, the Director initiated an investigation of Terrazas when he received notice of an overdraft in Terrazas' trust account. 581 N.W.2d at 842-43. The referee found that Terrazas made false statements to the investigator regarding annotations on checks, did not respond or did not comply fully to repeated requests for information, did not comply with discovery requests until the court entered an order compelling discovery, and left a panel hearing. Id. at 843. We noted mitigating factors, ordered anger management counseling, and publicly reprimanded Terrazas and placed him on two years' probation. Id. at 845-46.
Based on the discipline imposed in the above cases and the unique circumstances of Erickson's case, and considering the referee's recommended discipline, we conclude that the appropriate discipline for Erickson's misconduct substantial and lengthy, but not complete, noncooperation is 30 days' suspension, stayed, and four years of unsupervised probation. We impose the following conditions on the stayed suspension and probation period:
1. Respondent David T. Erickson shall file and serve on the Director a valid address within the state for personal service[5] within ten days. Respondent shall file and serve on the Director any future change in address;
2. Respondent shall abide by the Minnesota Rules of Professional Conduct;
3. Respondent shall cooperate fully with the Director's Office in its efforts to monitor compliance with this probation and shall respond promptly to the Director's correspondence by the due date. Respondent shall cooperate with the Director's investigation of any allegations of unprofessional conduct which may come to the Director's attention. Upon the Director's request, Respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation;
4. If Respondent violates any of the conditions of this order before the expiration of the four-year probation period, he will be subject to immediate and automatic revocation of the stay of the suspension, and the 30-day period of suspension shall be imposed. If Respondent, after serving the suspension period, seeks reinstatement, reinstatement shall be pursuant to RLPR Rule 18;
5. Respondent shall pay to the Director the sum of $900 in costs and disbursements pursuant to RLPR Rule 24.
So ordered.
NOTES
[1] Rule 12(c)(1) states:
If the respondent cannot be found in the state, the Director shall mail a copy of the petition to the respondent's last known address and file an affidavit of mailing with this Court. Thereafter the Director may apply to this Court for an order suspending the respondent from the practice of law. A copy of the order, when made and filed, shall be mailed to each district court judge of this state. Within one year after the order is filed, the respondent may move this Court for a vacation of the order of suspension and for leave to answer the petition for disciplinary action.
Rule 12(c)(1), Rules on Lawyers Professional Responsibility (RLPR).
[2] His cover letter to the clerk of court stated that his answer was served "in accordance with your order received this day." Erickson did not include either an acknowledgement of service of the petition nor an address for personal service, but there is no record that the Director objected.
[3] At the referee hearing, Erickson made hearsay and relevance objections to many of the exhibits. On appeal, he does not allege that the referee abused his discretion in admitting the exhibits or in concluding that foundation was sufficient; instead, he contends, infra, that the Director did not meet the clear and convincing standard of proof in showing noncooperation. See In re Westby, 639 N.W.2d 358, 366 (Minn.2002) (stating that evidentiary rulings will not be reversed absent an abuse of discretion). We conclude that the referee did not abuse his discretion in allowing the exhibits into evidence. See Minn. R. Evid. 803(6), (7), (8), (10); Minn. R. Evid. 901(a); Minn. R. Evid. 902(4), (8); Minn. R. Evid. 903; Minn. R. Evid. 1002, 1003, 1005, 1006.
[4] Erickson ultimately provided interrogatory answers and produced the requested documents in compliance with the referee's December 17, 2001 order to comply with discovery requests.
[5] To satisfy this condition, we require an address where Respondent can be found. See Minn. R. Civil P. 4.03 ("Service of summons within the state shall be as follows: (a) Upon an individual. Upon an individual by delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351549/ | 155 Va. 687 (1931)
BOARD OF SUPERVISORS OF KING AND QUEEN COUNTY
v.
W. S. COX, ET ALS.
Supreme Court of Virginia.
January 26, 1931.
Edwin H. Gibson, Assistant Attorney-General, J. D. Mitchell and W. D. Evans, for the plaintiff in error.
Chas. S. Smith, Jr., and Leon M. Bazile, for the defendant in error.
Present, Prentis, C.J., and Campbell, Holt, Epes, Hudgins, Gregory and
1. APPEAL AND ERROR -- Parties -- Appeal by Supervisors from Decision of Circuit Court that an Additional Levy in a School District was Unauthorized -- Whether Commonwealth's Attorney should be made a Party -- Case at Bar. -- The instant case was an appeal to the Supreme Court of Appeals from a decision of the circuit court have a levy of an additional tax in a school district to repay a loan from the literary fund was unauthorized without an election. Twenty-six freeholders requested the Commonwealth's attorney to appeal to the circuit court of the county from that part of the order of the board of supervisors which provided for the additional levy to repay the loan. The real interested parties to the litigation in the Supreme Court of Appeals were the board of supervisors on the one side and the twenty-six freeholders, on the other. The statute required the Commonwealth's attorney to appeal from the order of the board of supervisors to the circuit court, if requested to do so by more than six freeholders. The request was made and he appealed on their behalf. The appeal was properly perfected and the interests of the freeholders safeguarded and preserved.
Held: That the Commonwealth's attorney had performed all the statute required of him, and that he had no further interest in the matter as a party.
2. SCHOOLS -- Increase in Budget -- Section 2039(40) of the Code of 1930 -- County Budget and School Budget Distinguished -- Chapter 85-a of the Code of 1930 has no Application to School Budget -- Case at Bar. -- The instant case was an appeal by freeholders from an order of the board of supervisors providing for an additional very in a school district to repay a loan to the school district by the literary fund. It was contended that the order of the board of supervisors was void because it did not have the unanimous approval of the board, and that section 2039(40) of the Code of 1930 prohibited the increasing of the budget of the county except by the unanimous approval or vote of the members of the board. The section in question appears in chapter 85-a of the Code of 1930, and the levies and the increase in the budget therein referred to concern the levies and the budget regarding county roads. The chapter does not apply to school levies and is not applicable to the levy in the instant case. The school budget is a separate and distinct budget.
3. SCHOOLS -- Loan from Literary Fund for Purpose of Building, Remodeling, etc., of Schoolhouse -- Necessity of Vote of Qualified Voters in Favor of Securing Loan -- Case at Bar. -- The principal question in this case was whether the school board of a county may borrow from the literary fund for the purpose of building, remodeling, or making additions to a schoolhouse in the county without first holding an election and procuring a majority vote of the qualified voters in favor of securing the loan.
Held: That the school board had authority to borrow money from the literary fund for building purposes without first procuring a majority vote of the qualified voters in favor of securing a loan.
4. SCHOOLS -- School Code, Sections 611-718 of the Code of 1930 -- Intention of General Assembly. -- The General Assembly through the enactment of the school code, sections 611-718 of the Code of 1930, clearly intended to establish the policy and laws of the State respecting the free school system of the State.
5. SCHOOLS -- Loans for Purpose of Building Schoolhouses -- Loans from the Literary Fund -- Sale of Bonds -- Vote of the People. -- The school code, sections 611-718 of the Code of 1930, makes provision for two separate and distinct kinds of loans for building schoolhouses. First: Loans from the literary fund, which do not require a vote of the people, and second, loans from other sources realized from the sale of bonds, which do require a vote of the people.
6. SCHOOLS -- Loan from Literary Fund. -- The propriety of a loan from the literary fund to a school district for a building purpose is left entirely to the judgment and discretion of the State Board of Education and the local school board.
7. SCHOOLS -- Loan from Literary Fund -- Section 115-a of the Constitution has no Application. -- Section 115-a of the Constitution of 1902, as amended in 1928, provides that: "No debt shall be contracted by any county, or by or on behalf of any school board of any county, or by or on behalf of any school district in any county," unless a majority vote of the qualified voters approving the debt be first obtained. This amendment to the Constitution, section 115-a, has no application whatever to literary fund loans to local school boards. The amendment applies to debts contracted by a county for building schoolhouses, which are to be incurred by or through a bond issue for the purpose.
8. SCHOOLS -- Loans from Literary Fund -- Obligation to Repay an Involuntary One. -- The obligation on a county to repay a literary fund loan for schoolhouses is in the nature of an involuntary one, imposed by the General Assembly in carrying out the mandatory directions of the Constitution, while its obligation to repay a bond issue loan for schoolhouses, the proceeds of which have been used in lieu of, or to supplement, the funds provided by the General Assembly, is a voluntary obligation brought about by the approval of the voters. It is only to the debts or loans of the voluntary class that section 115-a of the Constitution is directed. To hold otherwise would in effect be to construe section 129 of the Constitution as imposing on the General Assembly the duty to provide schools, and section 115-a, as denying it the power to perform that duty.
9. CONSTITUTIONAL LAW -- Construction of Constitution -- Instrument Construed as a Whole. -- No single section of the Constitution should be construed alone, but consideration given to the instrument as a whole, and, so far as possible, all provisions harmonized.
10. STATUTES -- Contemporaneous Legislature Construction -- School Code and Section 115-a of the Constitution. -- In construing the school code, section 611-718 of the Code of 1930, and section 115-a of the Constitution, weight should be given to the legislative construction of these provisions. Section 115-a of the Constitution, having been submitted to the people by the General Assembly of 1928, and it having enacted the school code, sections 611-718 of the Code of 1930, at the same session, it is obvious that the General Assembly did not contemplate that there was any conflict between the provisions of section 115-a and the school code; and the people, in voting on the amendment, are presumed to have had knowledge of the simultaneous enactment of the school code and to have likewise construed section 115-a as not in conflict therewith.
11. SCHOOLS -- Loans from Literary Fund -- Vote of the People -- Section 115-a of the Constitution. -- It would seem obvious that if the General Assembly, in submitting section 115-a of the Constitution to the people, had intended its adoption as a repeal of those provisions of the school code, which permit loans from the literary fund to local school boards without a vote of the people in the counties, or if it had intended it to limit such loans in any way, other than they are limited in the school code, a clear express provision to that effect would have been embraced in the constitutional amendment.
12. STATUTES -- Contemporaneous Legislative Construction. -- Contemporaneous legislative construction of a doubtful constitutional provision is entitled to great weight in its construction, even though it is not always decisive.
13. STATUTES -- Construction -- Loan from Literary Fund -- Related Provisions Construed Together. -- An elementary rule of construction is that all related provisions of a constitution or statute must be considered and read together in construing one provision. When the related sections of the Constitution and the pertinent acts of the General Assembly in regard to loans from the literary fund are read and construed together, it is not difficult to arrive at the meaning of the constitutional provisions and the intent of the General Assembly. A fair and reasonable construction is that they are in harmony with each other; that no conflict exists, and that local boards can borrow from the literary fund without first procuring a majority vote of the people.
14. COUNTIES -- Definition. -- A county is one of the instruments or agencies through which the State performs its functions of government. It is the arm of the State.
15. SCHOOLS -- County School Board -- Agency of the State. -- A county school board borrowing from the State Board of Education the State's money (literary fund), which has been set apart and devoted to schools, is but a transaction between two agencies of the State concerning the application and use of the State's funds.
16. SCHOOLS -- Borrowing from Literary Fund -- Necessity of Vote of the People -- Levy of Tax to Repay Loan -- Case at Bar. -- A county school board is entitled to borrow money from the literary fund for building purposes without first procuring a majority vote of the qualified voters, provided it has otherwise complied with the law; and the board of supervisors of the county acts within its rights and performs its duty when it, by an order, levies an additional tax in the school district to repay the loan and interest.
Error to a judgment of the Circuit Court of King and Queen county, in an appeal by freeholders from an order of the board of supervisors making an additional levy for the purpose of repaying a loan to the literary fund. Judgment for the freeholders. The board of supervisors assigns error. The opinion states the case.
GREGORY
GREGORY, J., delivered the opinion of the court. *691
The school board of King and Queen county presented to the board of supervisors of that county an application, addressed to the State Board of Education, for the purpose of borrowing $5,000.00 from the literary fund of the State. The application disclosed that the $5,000.00 was needed by the county school board in order to build a new school building, or to remodel, or to make additions to, the present school building at Shanghai, in the Buena Vista district of the county. It was proposed to repay the loan in fifteen equal annual installments with interest payable semi-annually, in accordance with the regulations of the State Board of Education. The board of supervisors, on February 5, 1930, approved the application to borrow the amount applied for from the literary fund of the State. At the same meeting of the board of supervisors, an order was entered which provided that in each year during the life of the loan, at the time it made its regular levies, it would make a levy in Buena Vista district, in the county, for the purpose of repaying the loan and the semi-annual interest.
At a later meeting of the board of supervisors held on April 23, 1930, the citizens of the county were given an opportunity to be heard regarding the annual budget for the county, and also to be heard regarding the additional levy, contemplated to be made, of ten cents on the $100.00, which increased the local levies to that extent. The additional increase of ten cents was to be used in repaying the contemplated loan from the literary fund. A majority of the citizens present expressed themselves as being opposed to the increased levy, but the board decided to make the additional levy for the purpose of repaying the loan and entered an order to that effect. Twenty-six freeholders, under the statute, requested the Commonwealth's attorney of the county to appeal to the circuit court of the county from that part of the order of the board which provided that an additional levy of ten cents would be made to repay the loan. *692
On June 10, 1930, the appeal was heard and decided by the Circuit Court of King and Queen county. The court held by its order: "* * * that under section 115-a of the Constitution said levy of an additional ten cents on $100.00 is unauthorized without an election, it is considered by the court that said levy of an additional ten cents cannot be laid in Buena Vista district of said county * * *." It is from this order of the Circuit Court of King and Queen county that the board of supervisors applied for and obtained a writ of error.
There are two preliminary questions raised by counsel for the freeholders, which should be disposed of before we undertake to decide the vital issue in the case.
Counsel for the freeholders make the point that the style of the case should be "board of supervisors of King and Queen county, appellants, and Honorable J. Douglas Mitchell, Commonwealth's attorney of King and Queen county, appellee."
Without entering into any lengthy discussion of this point, we are of opinion that the real interested parties to this litigation in this court are the board of supervisors on the one side, and the twenty-six freeholders on the other. The statute required the Commonwealth's attorney to appeal from the order of the board of supervisors to the circuit court, if requested so to do by more than six freeholders. The request was made and he did appeal on their behalf. The appeal was properly perfected and the interests of the freeholders safeguarded and preserved. The Commonwealth's attorney has performed all that the statute required of him, and he has no further interest in the matter as a party.
Counsel for the freeholders contend that the order of the board of supervisors is void because it did not have the unanimous approval of the board. It appears that two members approved and one disapproved the additional *693 levy. They claim that section 2039(40) of the Code (Michie, 1930) prohibited the board, after April 1, from increasing the budget of the county except by the unanimous approval or vote of the members. The section referred to is one of many sections appearing in chapter 85-a of the Code. (Michie, 1930.) The title of this chapter is "General County Road Law" and the levies, and the increase in the budget therein referred to, concern the levies and the budget regarding county roads. This chapter does not apply to school levies and is not applicable to the levy in this case. The school budget is a separate and distinct budget (section 658, Code 1930).
The principal question in this case is whether the school board of King and Queen county is permitted, under the Constitution and the Acts of the General Assembly, to borrow $5,000.00 from the literary fund, which is under the custody and supervision of the State Board of Education, for the purpose of building, remodeling, or making additions to a schoolhouse in that county without first holding an election and procuring a majority vote of the qualified voters in favor of securing the loan.
It is conceded, for the purpose of deciding this question, that unless section 115-a of the Constitution applies in this case, an election and a majority vote of the qualified voters is not necessary in order for the county school board to borrow from the literary fund.
The constitutional provisions, which are pertinent to the main question to be decided, are embraced in article 9, and are as follows: Section 129 provides that "the General Assembly shall establish and maintain an efficient system of public free schools throughout the State."
Section 130 provides that the supervision of the school system shall be vested in a State Board of Education.
Section 132 defines the powers and duties of the State Board of Education. Among other things it provides that *694 "it shall have the management and investment of the school fund under regulations prescribed by law * * *."
Section 133 provides for school districts and school trustees. "The supervision of schools in each county and city shall be vested in a school board, * * *."
Section 134 creates the literary fund. "The General Assembly shall set apart as a permanent and perpetual literary fund, the present literary fund of the State; the proceeds of all public lands donated by Congress for public free school purposes; of all escheated property; of all waste and unappropriated lands; of all property accruing to the State by forfeiture, and all fines collected for offenses committed against the State, and such other sums as the General Assembly may appropriate."
Section 135 is as follows: "The General Assembly shall apply the annual interest on the literary fund; that portion of the capitation tax provided for in the Constitution to be paid into the State treasury, and not returnable to the counties and cities; and an amount equal to the total that would be received from an annual tax on the property of not less than one nor more than five mills on the dollar to the schools of the primary and grammar grades, for the equal benefit of all the people of the State, to be apportioned on a basis of school population, the number of children between the ages of seven and twenty years in each school district to be the basis of such appropriation. And the General Assembly shall make such other appropriations for school purposes as it may deem best, to be apportioned on a basis to be provided by law."
Section 136, provides that "each county * * * is authorized to raise additional sums by a tax on property, subject to local taxation, not to exceed in the aggregate in any one year a rate of levy to be fixed by law, to be apportioned and expended by the local school authorities of said counties * * * in establishing and maintaining *695 such schools as in their judgment the public welfare may require * * *. The board of supervisors of the several counties * * * shall provide for the levy and collection of such local school taxes."
The General Assembly in 1928 revised, consolidated, amended and codified the school laws and certain laws relating to the State Board of Education. Acts 1928, chapter 471. The new school code thus arrived at is codified as sections 611 to 718, inclusive, in Michie's Code of 1930. The act was approved on March 26, 1928. The effect of the act is to entirely supersede the school law as embodied in these sections existing at the time of the passage of the 1928 act.
The General Assembly, through the enactment of the school code, clearly intended to establish the policy and laws of the State respecting the free school system of the State.
The sections of the school code which have any relation to the subject under discussion will be briefly referred to. It will be observed by reference to them that the act makes provision for two separate and distinct kinds of loans for building schoolhouses. First: loans from the literary fund, which do not require a vote of the people, and second, loans from other sources realized from the sale of bonds, which do require a vote of the people. It is quite significant that these two general plans for financing the building of schools are outlined in the school code in detail. Sections 636 to 645, inclusive, are the statutes which provide for literary fund loans and there is no requirement in those sections that an election and vote shall be had in order for a local school board to borrow from the literary fund.
On the other hand, with reference to debts to be contracted by counties for building schoolhouses, in the form of bond issues, by which it is contemplated that the money *696 will be derived from sources other than the literary fund, there appears the express provision that an election shall be held and a majority vote obtained in favor of such a bond issue, as a condition precedent to the issuance of bonds. This second plan for financing the building of schoolhouses is embodied in sections 673, 674, 674-a, 674-b, 674-c, 674-d, 674-e and 674-f.
In considering this case and in construing the school code and the Constitution we must keep in mind the two separate and distinct plans outlined in the school code.
The General Assembly of 1928, by its enactment, provided in sections 611 and 612 for the establishment and management of the public school system and placed the management in a State Board of Education, a Superintendent of Public Instruction, division superintendents of schools, county school boards and city school boards. The general supervision of the school system was, by the act, vested in a State Board of Education.
Following the relevant constitutional provision, the General Assembly enacted section 632, which provides that there shall be set apart as a permanent and perpetual literary fund, the present literary fund, the proceeds of all public lands donated by Congress for public school purposes, of all escheated property, of all waste and unappropriated lands, or all property accruing to the State by forfeiture and all fines collected for offenses committed against the State, donations made for the purpose, and such other sums as the General Assembly may appropriate. The same shall be known as the literary fund, and shall be invested and managed by the State Board of Education. The principal of the said fund shall always remain unimpaired and entire, and the annual income arising therefrom shall be dedicated exclusively to the support and maintenance of public schools. The fines collected are directed to be paid into the treasury and on warrant of the comptroller they shall *697 be transferred to the credit of the literary fund and shall be used for no other purposes whatsoever. And then it was provided, in section 633, for the investment of the capital and unappropriated income of the literary fund.
Under the first plan for financing school buildings with money borrowed from the literary fund, the following sections of the school code apply.
By section 636, the State Board of Education is expressly granted the power to loan to the school board of the several counties and cities money belonging to the literary fund and in hand for investment for the purpose of erecting or enlarging schoolhouses in such counties or cities, and under section 637, it is provided that the State Board of Education shall provide for an equitable distribution of the funds loaned from the literary fund among the several counties and cities.
The county and city school boards, under section 638, are expressly granted the authority to borrow from the literary fund, provided they make a formal application setting forth certain information. The approval of the voters in an election is not required by this section. Under section 640, this application is submitted to the Attorney-General for his approval and then it is passed along to the State Board of Education for its approval. Under section 642, after the approval of the application by the Attorney-General and State Board of Education the State Board is granted express authority to make the loan provided it does not exceed $25,000.00, and provided it shall not exceed two-thirds of the cost of the schoolhouse. It is further provided that no loan shall be made to aid in the erection of any schoolhouse or any addition thereto to cost less than $500.00, and further that no loan shall be made in any case in which the payment of the same with interest would, in the judgment of the State Board of Education, entail too heavy a charge upon the revenues of the county or city. *698
It is quite significant, that in making a loan of this kind the propriety of making it is left entirely to the judgment and discretion of the State Board of Education, and the local school board.
The rate of interest under section 643, on such loan, is fixed at four per cent and is payable semi-annually and the principal is payable in fifteen annual installments and shall be evidenced by bonds or notes payable to the Commonwealth of Virginia, for the benefit of the literary fund.
Section 644 provides that the board of supervisors in counties and the councils in cities, in which school boards have borrowed funds from the literary fund, shall include in the county or city levies, or appropriate sufficient funds, as the case may be, to meet its liabilities on such contracts.
Section 645 provides that the loan made under this chapter shall constitute a specific lien on the schoolhouse and addition thereto, for the erection of which such loan has been made, as well as the lot where the buildings are situated. All such buildings shall be kept fully insured for the benefit of the literary fund and the policies deposited with the State Treasurer.
The annual interest on the literary fund is expressly made a part of the school fund, under section 646.
Under the second plan for financing school buildings, by which a vote of the people is required, detailed provision is made for these general loans from sources other than the literary fund. In section 673 authority is granted to the counties to make these general loans for this purpose and to issue bonds therefor, provided the proposal has been approved by the board of supervisors, the judge of the circuit court and a majority of the qualified voters of said county in an election held for the purpose. These bonds are issued on the credit of the county and the State Board of Education has nothing to do with the transaction. It has no supervision whatever over such a loan. The succeeding *699 sections, 674, 674-a, 674-b, 674-c, 674-d, 674-e and 674-f, deal entirely with bonds issued for the purpose of erecting schoolhouses and which have been approved by the majority of the qualified voters of a county. These sections have no bearing on loans from the literary fund.
Under article 7 of the Constitution is found section 115-a, the constitutional provision which is invoked in this case as a prohibition against the loan proposed to be made by the State Board of Education to the school board of King and Queen county.
It will be observed that article 7, which embraces section 115-a of the Constitution, relates solely to the "Organization and Government of Counties," while article 9, under which the constitutional provisions for public schools appear, relates solely to "Education and Public Instruction." These two general divisions appear in the Constitution.
Section 115-a, is as follows:
"No debt shall be contracted by any county, or by or on behalf of any school board of any county, or by or on behalf of any school district in any county, except in pursuance of authority conferred by the General Assembly by general law; and the General Assembly shall not authorize any county, or any district of any county, or any school board of any county, or any school district in any county, to contract any debt except to meet casual deficits in the revenue, a debt created in anticipation of the collection of the revenue of the said county, board or district for the then current years, or to redeem a previous liability, unless in the general law authorizing the same provision be made for the submission to the qualified voters of the proper county or district, for approval or rejection, by a majority vote of the qualified voters voting in an election on the question of contracting such debt; and such approval shall be a prerequisite to contracting such debt. No script, certificate or other evidence of county or district indebtedness *700 shall be issued except for such debts as are expressly authorized in this Constitution or by the laws made in pursuance thereof."
It is contended by counsel for the freeholders that the loan proposed to be made in this case from the literary fund to the county school board of King and Queen county, can only be made after it has been submitted to the voters and has been approved by a majority vote; that the amendment to the Constitution, section 115-a, applies to loans from the literary fund and that the loan in question not having first been approved by a majority vote in an election held for the purpose, in accordance with section 115-a, is prohibited by the express terms of the amendment.
We cannot concur in this view of the case. We are of opinion that the amendment, section 115-a, has no application whatever to literary fund loans to local school boards.
We do think, however, that the amendment applies to debts contracted by a county for building schoolhouses, which are to be incurred by or through a bond issue for the purpose, and which are embraced in the "second plan," outlined in the school code, for financing the building of schoolhouses, and provision for which is expressly made in sections 673 to 674-f of the school code.
Section 115-a of the Constitution confers the power on county school boards to borrow money or contract a debt, only after the question has had the approval of the qualified voters in an election for the purpose. In view of this section of the Constitution, the General Assembly passed the necessary legislation providing the means for carrying into effect this section of the Constitution so far as public schools are concerned. Those legislative acts, section 673 to 674-f, inclusive, provide in detail for general loans to local school boards, but as a prerequisite to making such loans they must have the approval of a majority of the *701 voters. The nature of the debt which may be contracted by a school board with the approval of the voters and embraced in section 115-a of the Constitution, and in the Acts of the General Assembly, sections 673 to 674-f, inclusive, is entirely different from the loans made from the literary fund. In the former case, an election and bond issue are contemplated. The money derived from a sale of the bonds is placed in the exclusive control of the local school board. The State Board of Education has nothing to do with it. In the latter case the State Board is given wide authority. It has the discretion to make the loan or to refuse to make it and the plans for the school building must have its approval. No election or bond issue is contemplated in making loans from the literary fund.
Section 632 of the school code, in accordance with Constitution, section 134, defines the sources from which the literary fund is derived, and section 633, in accordance with Constitution, section 132, places this fund under the control and supervision of the State Board of Education. The mandatory duty is imposed upon the State Board to invest the capital and unappropriated income of the literary fund. The thought running through the several constitutional provisions and the school code is that the literary fund shall always remain intact and that it is devoted and dedicated exclusively to school purposes.
The major portion of this fund arises from forfeitures and fines collected through the various courts in the counties and cities of the State. The counties and cities are acting, in the collection of this portion of the fund, as agencies of the State and the theory of the system is that the money so derived should go back to those counties and cities in the form of loans, equally distributed among them, for educational purposes. The school boards of the counties and cities in procuring loans from the literary fund for building schoolhouses are likewise acting as agencies *702 of the State in assisting in carrying out the mandatory duty imposed by the Constitution that an efficient free school system shall be established and maintained.
The Constitution and the General Assembly place the control and supervision of the literary fund in the hands of the State Board of Education with the direction that the board shall preserve and perpetuate it and invest it. The Constitution and the General Assembly have likewise placed the school system under the supervision of the State Board of Education and the local school boards of counties and cities. If the building of schoolhouses in a county depends in all cases upon a vote of the people, then to that extent certainly they are supplanting the State Board of Education.
Education is primarily a State function, and the State possesses the power by requiring the levy of a school tax in a county or city, to perform this function. In causing a school tax to be levied in a county, the assent of the people is not required. All school requirements, so far as the State is concerned, are worked out by the State Board of Education. This board is answerable only to the General Assembly. However, the General Assembly has made provision for counties and cities to supplement the funds provided by the State for school purposes, if a county or city deems the State funds insufficient. If a county or city desires a better schoolhouse than the State provides, it may raise money, under the statute, for a more elaborate building provided the voters assent.
The Constitution imposed the mandatory duty on the General Assembly to establish and maintain the public school system, and school buildings are essential to that system. The principal, if not the only, method available to the General Assembly, by which it can provide for the construction of school buildings, is through the loans from the literary fund for that purpose. The State Board of *703 Education and the local school boards are the agencies through which it can and does provide these schoolhouses. If section 115-a is to be construed as requiring the approval of the voters before such buildings can be constructed with these funds, the practical effect will be to deny to the General Assembly, the principal, if not the only, means it has of carrying out or performing the mandatory duty imposed on it. Current revenues of the State have never been used for such purpose.
Under the school code, the General Assembly, through its agencies, the State Board of Education and the local school boards, has the power to and does provide for schoolhouses from the literary fund, when it is considered necessary, and it can compel the levy of a tax to reimburse the literary fund. This, of course, is the case, only in the event the county fails to provide such buildings by general bond issues or otherwise, and is in the nature of an involuntary obligation imposed on the county by the General Assembly. Such action is in discharge of the mandatory duty imposed by the Constitution on the General Assembly to establish and maintain an efficient system of free schools. On the other hand, if the county school board prefers, or if it proposes additional or more elaborate school buildings than may be provided from the literary fund, the qualified voters may approve a general bond issue and provide the funds for additional expenditures. In other words, the obligation on the county to repay a literary fund loan for schoolhouses is in the nature of an involuntary one, imposed by the General Assembly in carrying out the mandatory directions of the Constitution, while its obligation to repay a bond issue loan for schoolhouses, the proceeds of which have been used in lieu of, or to supplement, the funds provided by the General Assembly, is a voluntary obligation brought about by the approval of the voters. It is only to the debts or loans of the voluntary *704 class that section 115-a of the Constitution is directed. To hold otherwise, would in effect be to construe section 129 of the Constitution as imposing on the General Assembly the duty to provide schools, and section 115-a as denying it the power to perform that duty.
No single section of the Constitution should be construed alone, but consideration given to the instrument as a whole, and, so far as possible, all provisions harmonized.
In construing the school code and section 115-a of the Constitution, weight should be given to the legislative construction of these provisions. Section 115-a was not included in the report of the commission which recommended the proposed changes in the Constitution. It originated in the General Assembly and, after approval in the session of 1928, it was submitted along with the other amendments for ratification by the people of the State. At the same session of the General Assembly sections 611 to 718, inclusive (known as the school code), were enacted into our law. In several sections of the school code provision was made for the contingency of the amendments being ratified or rejected. Section 612 (Acts 1928, chapter 471, section 1) begins with this statement: "If and when section 130 of the Constitution is amended * * *;" section 630 (Acts 1928, chapter 471, section 1): "* * * In the event that section 131 of the Constitution should be amended * * *;" and section 649 (Acts 1928, chapter 471, section 1) begins thus: "Unless sections 132 and 133 of the Constitution of Virginia are amended." It will be observed in referring to the original act that sections 632 to 645 (Acts 1928, chapter 471, section 1), inclusive, the sections of the school code which authorize the lending of money from the literary fund to school boards and conferring power upon the school boards to borrow it, that there is no reference in those sections to the contingency that section 115-a may or may not be ratified. From *705 this it is clear that the General Assembly did not intend that a vote of the people should be necessary in order for a county school board to borrow from the literary fund, else the contingency would have been provided for in those sections which provide for loans from the literary fund to school boards, just as the contingency was taken care of in sections 612, 630 and 649.
It was not the purpose or intention of the General Assembly in submitting section 115-a of the Constitution to the people, nor was it the intention of the people in ratifying the amendment, to hamper and disrupt the educational activities of the State by requiring a vote of the people on loans from the literary fund. Many of these loans, no doubt, are small and it would seriously embarrass the school system if it were necessary to incur the expense and delay of an election in order for one agency of the State, a local school board, to borrow from another agency, the State Board of Education. For instance, an election would not be justified in order to borrow from the literary fund through the State Board such a small sum as $600.00, for repairing a school which possibly might have been damaged by fire. On the other hand, suppose the election should be unfavorable to the loan, and there be no general funds available, is the county to be left without a schoolhouse?
Section 115-a, having been submitted to the people by the General Assembly of 1928, and it having enacted the school code at the same session, it is obvious that the General Assembly did not contemplate that there was any conflict between the provisions of 115-a and the school code; and the people, in voting on the amendment, are presumed to have had knowledge of the simultaneous enactment of the school code and to have likewise construed 115-a as not in conflict therewith.
It would seem obvious that if the General Assembly, *706 in submitting section 115-a of the Constitution to the people, had intended its adoption as a repeal of those provisions of the school code which permit loans from the literary fund to local school boards without a vote of the people in the counties, or if it had intended it to limit such loans in any way, other than they are limited in the school code, a clear express provision to that effect would have been embraced in the constitutional amendment.
Numerous authorities could be cited in support of the rule that contemporaneous legislative construction of a doubtful provision is entitled to great weight in its construction. In 6 R.C.L., section 59, we find this statement of the rule: "In determining the constitutionality of statutes great weight has always been attached to contemporaneous exposition of the meaning of fundamental law * * *." And again in 6 R.C.L., section 60, this is stated: "The principle of contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing with legislative powers and procedure. Though not conclusive, such interpretation is generally conceded as being entitled to great weight and should not be departed from unless manifestly erroneous. * * *."
In the case of Blake Marshall, 152 Va. 616, 148 S.E. 789, 791, this is announced: "It is of course fundamental that the General Assembly has the authority to enact any statute which is not prohibited by the Constitution; that the presumption is in favor of the validity of the statute; and that the burden of showing that it contravenes the Constitution is upon those who aver that it does. Even where there seems to be a conflict, this should be reconciled, if it is possible to uphold the statute in whole or in part. Reaves Warehouse Corp. Commonwealth, 141 Va. 199, 126 S.E. 87; Tobacco, etc., Association Warehouse Co., 144 Va. 459, 132 S.E. 482. *707 "
"The contemporaneous construction placed upon constitutional limitations is significant, even though not always decisive. We find that at the time of the adoption of section 175 the framers of the Constitution used no language indicative of any purpose either to nullify the existing valid statute * * * it is certainly improbable that had such purpose existed it would not have been expressed, or at least indicated by some appropriate language in the Constitution."
"The General Assembly was oblivious of any such conflict, because in the general revision immediately following the adoption of the Constitution this statute was left unchanged. Those then interested failed to perceive any conflict, irreconcilable or otherwise."
An elementary rule of construction is that all related provisions of a constitution or statutes must be considered and read together in construing one provision. Several related provisions of our Constitution are mandatory. For example, section 129 of the Constitution requires that the General Assembly shall establish and maintain the school system. Again, section 130 requires that the school system shall be vested in a State Board of Education. In section 132, it is provided that: "The duties and powers of the State Board of Education shall be as follows:"
Section 134 requires that the General Assembly shall set apart as a permanent and perpetual fund, the literary fund.
Section 135 requires that the General Assembly shall apply the annual interest on the literary fund to the primary and grammar grades of schools, and section 136 requires that primary schools shall be maintained.
It appears that the General Assembly, in obedience to the mandatory provisions of the Constitution, has established a State wide, efficient, free school system. It enacted a comprehensive school code and created a State Board of Education to carry through the plans for the establishment *708 and maintenance of the school system. The literary fund, which is the property of the Commonwealth under the control of the General Assembly, was placed at the board's disposal for that purpose, and it was directed to use the fund in carrying out the directions of the Constitution and the General Assembly, in a certain definite and specific way. The only limitation on the use of that fund by the board was that it should not be depleted, but should remain permanent and perpetual and that the income derived therefrom should be dedicated exclusively to public schools. The board was further directed to lend the fund, under certain conditions, to the local school boards for educational purposes, provided that the fund was to be always kept intact.
When the related sections of the Constitution and the pertinent acts of the General Assembly are read and construed together it is not difficult to arrive at the meaning of the constitutional provisions and the intent of the General Assembly. A fair and reasonable construction is the construction which the General Assembly has already placed upon the provisions; that is, that they are in harmony, each with the other; that no conflict exists, and that the local boards can borrow from the fund without first procuring a majority vote of the people.
The public school system has been created and developed by virtue of the several constitutional and statutory provisions. The system is embodied in no single provision. In order to arrive at an understanding of the school system as created and developed, we must read and consider all of the related provisions of the law together and analyze them in a comprehensive manner. In no other way can they be properly construed and applied. When those provisions are considered and construed together, the inevitable result is that section 115-a of the Constitution does not apply to literary fund loans. *709
On the other hand, if we adopt the construction of section 115-a as contended for by the freeholders without referring to and considering the school code, such construction would result in giving to that amendment such a limited and restrictive meaning that under it alone a school board could not pledge the county's credit and issue bonds for school purposes, even though a majority of the people would be willing to approve the plan, because the means and machinery for obtaining the vote of the people and holding an election are not found in 115-a. Those means are found only in the school code (sections 673 to 674-f, inclusive). In other words, while 115-a provides that an election shall be held, it does not provide how, when, where and at whose expense it shall be held. Complete provision for such an election is found in the school code and in those sections therein where it is contemplated that a school board desires to contract such a debt as is provided for in section 115-a. Every step necessary to be taken is fully provided for.
Again if we construe section 115-a as applying to literary fund loans, it might be ineffectual because the State Board of Education, having supervision of the fund and being vested with a discretion as to whether the loan should be made, could refuse to make the loan, even though it had been approved by the voters. Such a loan might, in the discretion of the State Board, be a too heavy charge on the revenues of the county, or it might result in an unequal distribution of such loans to the several counties and cities throughout the State. In either event, the State Board could withhold the loan.
It is obvious that if section 115-a is construed as applying to literary fund loans, then the relevant sections of the school code would be nullified.
[14, 15] Under article 1, section 14, of the Constitution, no government, separate and independent of the State government, *710 is permitted. County government has been provided for and it is made one of the instruments or agencies through which the State performs its functions of government. It is an arm of the State. A county school board borrowing from the State Board of Education the State's money (literary fund), which has been set apart and devoted to schools, is but a transaction between two agencies of the State concerning the application and use of the State's funds.
On the other hand, debts contracted by a county for building schools, in the form of bond issues, which is the most common form, are not supervised in any manner by the State Board of Education. Such board has no authority to prevent a county contracting such a debt, nor can it prescribe the plan of school buildings which may be constructed with the money so derived. In such a case, the interest paid and the principal repaid are both lost to the county and State forever. It is clear that it was with respect to debts of this nature that the restrictions of section 115-a of the Constitution were intended to be applied.
We have considered the North Carolina cases in which similar provisions of the Constitution and statutes of that State have been construed, and while we have great respect for the authority of the courts of North Carolina and we think those cases support the conclusions reached in this opinion, yet, we believe that the controlling principles which underlie a correct decision of this case may be reached by applying the elementary rules of construction as herein stated.
Through the school code, the General Assembly has made detailed and specific provision, outlining the necessary steps to be taken, for a local school board to borrow from the literary fund without first obtaining the approval of the voters. The General Assembly in enacting the school code *711 and thereby arranging for local school boards, without the approval of the voters, to borrow from the literary fund, which the Constitution devoted to the commendable purpose of free schools, was but performing its mandatory duty and carrying out a wise and sound public policy.
One consequence of the dissenting view would be that while the counties may not, the cities and towns certainly may, under the statute, have such appropriations from the literary fund for the construction of school houses. We may be perfectly confident that such a discrimination against the counties in the use of the public funds was never contemplated, and that a construction of section 115-a which leads to such a result is unsound.
This opinion is not to be construed as affecting, in any way, the power of the State Board of Education to invest the literary funds in bonds issued by local school boards of counties and cities for the purpose of building schoolhouses, in pursuance of the authority granted in section 633 of the school code.
Our conclusion is that the school board of King and Queen county is entitled to borrow the money applied for from the literary fund, provided it has otherwise complied with the law, and that the board of supervisors of that county, under the law, acted within its rights and performed its duty when it, by an order, levied an additional tax of ten cents on one hundred dollars, to repay the loan and interest.
The judgment of the lower court is reversed and final judgment is here rendered in favor of the board of supervisors.
Reversed.
EPES
EPES, J., dissenting:
I am unable to concur in either the conclusion or the reasoning of the opinion of the court, but shall not enter upon any extended discussion thereof. It seems to me sufficient to say: *712
Sections 636-645, Va. Code, as enacted by Acts 1928, chapter 471, page 1197, et seq., authorizing and providing for loans to counties and cities from the literary fund, impress upon the obligation assumed by a county or city procuring such a loan every incident of a debt in the ordinary acceptation of the term.
Under section 134 of the Constitution an act of the General Assembly relieving a county or city of the payment of such obligation once it has been contracted by the county or city is null and void.
Section 115-a of the Constitution provides:
"No debt shall be contracted by any county, or by or on behalf of any school board of any county, or by or on behalf of any school district in any county, except in pursuance of authority conferred by the General Assembly by general law; and the General Assembly shall not authorize any county, or any district of any county, or any school board of any county, or any school district in any county, to contract any debt except to meet casual deficits in the revenue, a debt created in anticipation of the collection of the revenue of the said county, board or district for the then current year, or to redeem a previous liability, unless in the general law authorizing the same provision be made for the submission to the qualified voters of the proper county or district for approval or rejection, by a majority vote of the qualified voters voting in an election, of the question of contracting such debt; and such approval shall be a prerequisite to contracting such debt. No script, certificate or other evidence of county or district indebtedness shall be issued except for such debts as are expressly authorized in this Constitution or by the laws made in pursuance thereof."
The fact that a loan from the literary fund is a debt seems to me to be beyond question; and the language of section 115-a of the Constitution, I think, is too plain and *713 comprehensive to admit of circumvention by astute legal refinements.
I am of opinion that such loans from the literary fund are debts within the plain meaning of section 115-a of the Constitution; and cannot be contracted without submission to a vote of the people.
HUDGINS, J., concurs in the dissent of EPES, J. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351561/ | 116 Ga. App. 140 (1967)
156 S.E.2d 498
HUTTO
v.
THE STATE.
42848.
Court of Appeals of Georgia.
Submitted June 12, 1967.
Decided June 30, 1967.
*141 M. O. Strickland, for appellant.
W. T. Whatley, Solicitor, for appellee.
BELL, Presiding Judge.
1. The defendant objects to the refusal of the trial judge to grant his motion for mistrial because of improper remarks of the solicitor in argument before the jury. The transcript reveals that the judge admonished the jury to disregard the objectionable remarks and in considered detail directed them not to consider any comments of counsel on matters not in evidence. "The trial judge in passing on a motion for mistrial because of an alleged improper remark by the solicitor general in the presence of the jury is vested with a discretion, and his action will not be controlled by this court unless his discretion is manifestly abused. . . Assuming that the remark was an improper one, in view of the judge's instruction to the jury to give it no consideration, we cannot say that the judge's refusal to declare a mistrial was an abuse of his discretion." James v. State, 215 Ga. 213, 214 (4) (109 SE2d 735). Under the circumstances of this case, the corrective action taken by the trial judge formed a basis sufficient to support his discretionary judgment in denying the motion for mistrial. It is of no *142 substantial consequence that the judge did not specifically rebuke the solicitor in the presence of the jury as the court's statements and directions to the jury were tantamount to a rebuke and sufficient under the circumstances. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 710 (5) (181 SE 315); Newton v. Cohen-Walker-Bailie, Inc., 111 Ga. App. 753 (143 SE2d 14).
2. Enumeration 3 urges that: "The court erred in failing to quash the accusation upon motion of defendant on the grounds that the person making the affidavit upon which said accusation is based, P. H. Brown, did not of his personal and own knowledge know of the facts sworn to in the affidavit, which admission was made by said Brown during the trial of the case." Brown, a G. B. I. agent, on cross examination testified that he had signed the affidavit on which the accusation was based, that he "wasn't out there," that he knew "where the stuff came from," that there were "five other men out there." In Herring v. State, 119 Ga. 709, 717 (46 SE 876) it is stated that, "Oftentimes affiant's knowledge of matters stated in his affidavit must, of necessity, rest upon information derived from others; and where this is the case, it is generally sufficient if he aver that such matters are true to the best of his knowledge and belief. Belief is to be considered an absolute term, in this connection; hence to swear that one believes a thing to be true is equivalent to swearing that it is true, and perjury may be assigned on such affidavit." The law authorizes certain judicial officers to issue arrest warrants based on the officer's "own knowledge or the information of others given to him under oath." Code § 27-102. The form of affidavit for arrest as prescribed by the Code includes the words "to the best of his knowledge and belief." Code Ann. § 27-104.
The court did not err in denying the motion to quash the accusation.
3. Enumeration 4 urges error in the court's refusal to exclude and strike the testimony of the witness Brown regarding the liquor and slot machines on the ground that it was hearsay. It is unnecessary here to consider whether the testimony was hearsay, as other witnesses without objection (as well as the defendant in his unsworn statement), referred to the liquor and *143 slot machines as matters within their personal knowledge. Thus, even if the court erred in denying the motion to strike (which we do not decide), the error was harmless and does not require reversal. Smith v. State, 24 Ga. App. 654 (1) (101 SE 764); Usher v. State, 27 Ga. App. 776 (1) (110 SE 414); Patterson v. State, 17 Ga. App. 341 (2) (86 SE 782); Long v. Dye, 42 Ga. App. 726 (4) (157 SE 359).
4. Error is enumerated on the admission of evidence regarding slot machines since the search warrant did not contain specific authority to search for them. The transcript shows that the slot machines were found in the building described in the warrant. "When the peace officer is in the process of effecting a lawful search, nothing in this section shall be construed as precluding him from discovering or seizing . . . any item, substance, object, thing or matter the possession of which is unlawful, or any item, substance, object, thing or matter other than the private papers of any person which is tangible evidence of the commission of a crime against the laws of the State of Georgia." Code Ann. § 27-303 (e). The mere keeping of a device for the hazarding of money such as a slot machine constitutes a misdemeanor. Miller v. State, 94 Ga. App. 259 (2) (94 SE2d 120).
5. It is contended that the search warrant was improperly and illegally served on the defendant. The search warrant did not specifically name the defendant but described The Terrace Club. In executing the warrant, the officer, on entering the described premises, called for the defendant by name. The officer testified that at that time the defendant was in the building and behind the bar. The officer identified himself to the defendant, stated that he had a search warrant and intended to serve it, and handed the warrant to the defendant, who accepted it without protest. By this and other evidence, the State amply carried its burden of proving that the search and seizure were lawful. The transcript shows that the warrant was sufficient on its face, that there was probable cause for its issuance, and that it was legally executed. The defendant offered no testimony refuting the circumstantial evidence offered by the State that the illegal property was in the defendant's possession. *144 Neither did the defendant in his unsworn statement deny possession of the property. There is no merit in this ground.
6. It is urged that the court erred in admitting evidence obtained during the execution of the search warrant without the officer's first having informed the defendant of his right to have an attorney present and of his right to remain silent. The ground has no merit. An examination of the entire transcript discloses no interrogation of the defendant, no confession, and no incriminatory statement. Although we doubt that proper objections raising the issue were presented at the trial, it is unnecessary to decide that point, as under the facts of this case the principles enumerated in Escobedo v. Illinois, 378 U. S. 478 (84 SC 1758, 12 LE2d 977) and Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694, 10 ALR3d 974), and similar cases are not applicable.
7. There is no merit in enumerations numbered 1 and 7 as the evidence was sufficient to support the verdict.
Judgment affirmed. Pannell and Joslin, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351662/ | 257 Wis.2d 928 (2002)
2002 WI App 254
653 N.W.2d 529
Joseph MULLEN and Estate of Renee K. Petit, by Joseph Mullen, Special Administrator, Plaintiffs-Appellants,[]
v.
Douglas J. WALCZAK, ABC Insurance Company, Daniel Wheeler, DEF Insurance Company and Primax Recoveries Company, Defendants,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
No. 02-0129.
Court of Appeals of Wisconsin.
Submitted on briefs August 27, 2002.
Decided September 10, 2002.
*929 On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of D. James Weis of Habush, Habush & Rottier, S.C. of Rhinelander.
On behalf of the defendant-respondent, the cause was submitted on the brief of John A. Kramer and Michael J. Roman of Zalewski, Klinner & Kramer, LLP of Wausau.
On behalf of the The Wisconsin Academy of Trial Lawyers, the cause was submitted on the amicus curiae brief of William C. Gleisner, III of Milwaukee, and Nancy M. Rottier of Madison.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
*930 ¶ 1. CANE, C.J.
Joseph Mullen and the estate of Renee Petit appeal a summary judgment in favor of American Family Mutual Insurance Company. The circuit court granted American Family's motion for summary judgment after it determined Mullen's emotional injuries arising from witnessing his wife Petit's death were covered by Petit's, rather than Mullen's, "each person" limit under Mullen's uninsured motorist policy. On appeal, Mullen argues his emotional injuries from witnessing Petit's death are covered by his "each person" limit under American Family's policy because these injuries arise from his own bodily injuries. Because Mullen's emotional injuries arise from Petit's injuries, we determine the policy limits Mullen's recovery for these damages to Petit's "each person" limit. We therefore affirm the circuit court's judgment.
BACKGROUND
¶ 2. On May 31, 1996, Mullen and Petit were involved in an automobile accident caused by Douglas Walczak, who was uninsured. Petit died in the accident and Mullen suffered severe injuries. In 1999, Mullen, personally and as the administrator of his wife's estate, brought suit to recover under their uninsured motorist policy, issued by American Family. The policy provides coverage of $100,000 for "each person." The policy limits American Family's liability by establishing the "each person" limit as the maximum it will pay "for all damages sustained by all persons as the result of bodily injury to one person in any one accident."
¶ 3. Mullen brought a wrongful death claim on behalf of the estate, and he and American Family settled the claim for $100,000, exhausting the coverage under Petit's "each person" limit. Mullen also sought to recover for his own physical and emotional injuries, as *931 well as the emotional injuries he suffered from witnessing his wife's death. He and American Family stipulated his physical injuries and the emotional injuries arising from them totaled $50,000.[1] American Family refused to cover Mullen's emotional injuries stemming from his wife's death. On its motion for summary judgment, American Family argued because those damages arose from Petit's injuries, under the policy they had to be paid from Petit's "per person" limit, which was exhausted by the wrongful death settlement. Mullen argued these injuries arose from his own bodily injuries and were payable under his own "per person" limit. The circuit court granted American Family's motion for summary judgment and denied Mullen's motion to reconsider. Mullen appeals.
STANDARD OF REVIEW
[1-3]
¶ 4. Insurance coverage issues can be resolved on summary judgment. Meyer v. City of Amery, 185 Wis. 2d 537, 542, 518 N.W.2d 296 (Ct. App. 1994). Interpretation of an insurance contract is a question of law that *932 we review independently, although benefiting from the trial court's analysis. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 636, 586 N.W.2d 863 (1998). When the terms of an insurance policy are unambiguous, we will not rewrite the policy by construction. Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 10, 245 Wis. 2d 134, 628 N.W.2d 916.
DISCUSSION
¶ 5. The facts are not in dispute, and neither party suggests summary judgment was procedurally inappropriate to resolve this matter. The only issue is the interpretation of Mullen's uninsured motorist policy. As noted, the policy provides $100,000 coverage for bodily injury to "each person." In addition, the policy limits American Family's liability under the "each person" limit by stating the limit is the maximum it will pay "for all damages sustained by all persons as the result of bodily injury to one person in any one accident."
¶ 6. The circuit court, relying on Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997), determined the emotional injuries Mullen suffered as a result of witnessing his wife's death resulted from her bodily injuries and were therefore subject to her "each person" limit. On appeal, Mullen argues Gocha is not applicable to his situation. He contends the emotional injuries arose from his own bodily injuries and should be compensated from his own "each person" limit.
¶ 7. In Gocha, we addressed whether "each person" or "each accident" limits applied to family members' emotional distress claims resulting from witnessing an accident involving Kyle Gocha. Id. at 588. There, *933 the policy contained a limit on liability similar to the one here. It made the "each person" limit the maximum amount of coverage for bodily injuries to one person. Id. at 589. It then defined "bodily injury to one person" to include "all injury and damages to others resulting from this bodily injury." Id. We determined the family members' claims were subject to Kyle's "each person" limit because their injuries resulted from his bodily injury. Id.
¶ 8. Mullen argues Gocha is inapplicable because there, the other family members did not suffer bodily injury, while here, Mullen was injured in the accident. He admits the Gocha policy language has the same meaning as American Family's, but argues this factual distinction results in coverage. Mullen argues the Gocha claims were "bystander" claims for negligent infliction of emotional distress, recognized by Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994). Because he was involved in the accident, Mullen argues he is not a bystander and the emotional damages arise from his own injuries.
¶ 9. We disagree. The focus of our decision in Gocha was that, but for Kyle's bodily injuries, the family members would not have suffered emotional distress and, under the terms of the policy, that distress was compensable only from the "each person" limit. Id. at 593. Similarly, but for the death of his wife, Mullen would not have an emotional distress claim based on witnessing her death. That he suffered his own injuries is irrelevant to the issue of how the policy covers claims that result from bodily injury to another person.
¶ 10. Mullen suggests the emotional distress from witnessing his wife's death does result from his own injuries. In support he relies on Redepenning v. Dore, 56 Wis. 2d 129, 201 N.W.2d 580 (1972); Vinicky v. Midland *934 Mut. Cas. Ins. Co., 35 Wis. 2d 246, 151 N.W.2d 77 (1967); and Rennick v. Fruehauf Corp., 82 Wis. 2d 793, 264 N.W.2d 264 (1978). These cases, however, do not support Mullen's proposition.
¶ 11. In Redepenning, a mother sought recovery for injuries she sustained in an automobile accident. Redepenning, 56 Wis. 2d at 132. Her daughter died in the accident, and the mother's claims included one for emotional distress. In upholding the jury's damage award, the supreme court noted the mother's emotional distress was caused both by her own physical injuries as well as witnessing her daughter's death. Id. at 143. The court said it was impossible to adequately separate these two causes of the damage. Id.
¶ 12. We cannot say Redepenning requires us to determine Mullen's emotional damage from witnessing his wife's death arose from his own personal injuries. While the Redepenning court did note it could not separate the causes of the mother's emotional distress, Mullen and American Family were able to do it in this case. The parties settled Mullen's claim for his physical injuries and any emotional distress that arose from them for $50,000. The only claim at issue is Mullen's distress from witnessing his wife's death. Under the policy, that damage is subject to her "each person" limit.
¶ 13. Nor do we find Vinicky persuasive. In Vinicky, a boy and his father were in an automobile accident. Vinicky, 35 Wis. 2d at 248. While the boy only suffered minor injuries, he experienced extreme emotional distress as a result of seeing his father severely injured and believing him to have died in the accident. Id. at 253. In upholding an award of damages to the boy for his emotional distress, the supreme court noted there was no doubt "that mental distress caused by the accident is properly compensable." Id. Mullen also *935 points to a later discussion of Vinicky in Rennick where the supreme court said "where the plaintiff can demonstrate physical injury at the time of the accident, plaintiff may also prove and collect damages for emotional injury arising from the accident. Such emotional injury need not arise from the plaintiff's distress over his own physical injuries." Rennick, 82 Wis. 2d at 805.
[4]
¶ 14. Mullen argues these cases state he is entitled to recover his damages for emotional distress from witnessing his wife's death. We agree. The issue before us, however, is how Mullen's uninsured motorist policy treats these claims. It unambiguously limits American Family's liability for all damages arising from one person's bodily injuries to the "each person" limit. Here, the emotional distress Mullen suffered by witnessing his wife's death arose from her bodily injury. Undoubtedly, this distress was severe. Nonetheless, American Family has already exhausted Petit's "each person" limit and is not required to provide coverage for any other damages that arose from her death.
By the Court.Judgment affirmed.
NOTES
[] Petition to review granted 12-10-02.
[1] Our review of the record does not reveal that Mullen ever claimed he suffered emotional injuries as a result of his own physical injuries. In his brief, however, he asserts he made this claim, but admits the $50,000 stipulation included both his physical injuries and the emotional injuries arising from them. Because of his admissions in his brief, in addition to our review of the record, we determine the only emotional injuries we must address are those Mullen suffered as a result of witnessing his wife's death. Although it is then irrelevant whether Mullen claimed he experienced emotional injuries as a result of his own physical injuries, we will continue to refer to them because we believe the distinction between the two types of emotional injuries is helpful to our resolution of this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352265/ | 463 S.E.2d 259 (1995)
120 N.C. App. 538
Timothy S. PHILLIPS, Employee, Plaintiff-Appellant,
v.
U.S. AIR, INCORPORATED, Employer,
The Kemper Group, Carrier, Defendant-Appellees.
No. COA94-1240.
Court of Appeals of North Carolina.
November 7, 1995.
*260 C. Murphy Archibald, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P. by Samuel H. Poole, Jr. and Nicholas P. Valaoras, for defendant-appellees.
GREENE, Judge.
Pursuant to N.C.Gen.Stat. § 97-86, Timothy S. Phillips (plaintiff) appeals from the Opinion and Award of the Industrial Commission (Commission) which denied plaintiff's claim for worker's compensation.
Plaintiff worked for U.S. Air from April 1986 until 30 June 1990. On 30 June, plaintiff left work for "a contemplated vacation," and on 3 July 1990 "developed the symptomatic onset of [a] ... salmonella infection," which required his hospitalization. Plaintiff was later diagnosed with the chronic fatigue syndrome, which "continues to totally incapacitate him." Plaintiff gave notice of a claim for worker's compensation, pursuant to N.C.Gen.Stat. § 97-22, to U.S. Air, who in turn gave notice to its insurance carrier, The Kemper Group (Kemper) (collectively U.S. Air and Kemper are defendants), claiming that his salmonella infection was a result of plaintiff's drinking from a "thermos type" water cooler provided by U.S. Air on the work site and that his chronic fatigue syndrome was a result of the salmonella infection. Because defendants contested the compensability of plaintiff's claim, plaintiff requested a hearing pursuant to N.C.Gen.Stat. § 97-83.
The relevant evidence before the Commission consisted of testimony by Dr. Robert William Reindollar (Reindollar), plaintiff's treating physician, that plaintiff did not test positive for salmonella until 6 August 1990. Reindollar further testified a period of forty-eight hours would be an unusual incubation period for salmonella, which generally manifests itself within twenty-four hours, and he also stated that there are many causes of salmonella. Although Reindollar testified that he "would expect to have more than one person infected," there was no evidence that any other U.S. Air employees contracted salmonella. Indeed, Reindollar stated that he could not identify the cause of plaintiff's salmonella "with any reasonable degree of medical certainty." There were also two memos, issued to U.S. Air employees on 24 July 1990 and 6 August 1990, which directed the employees to stop putting their hands and other objects inside the coolers.
The Commission adopted the following pertinent findings of fact:
4. ... Approximately 150 employees on each of the two shifts drank from the water coolers at the 10 locations in the premises' five zones.
In obtaining water or ice from those coolers, these same employees would occasionally stick their hands or cups or even handkerchiefs down in the coolers themselves. As a result of these practices, the coolers did provide a possible source point for the salmonella infection giving rise to the instant claim.
....
6. Salmonella is a bacterial infection that is most commonly seen in fowl and most commonly transmitted by ingestion of uncooked poultry, including eggs. However, it can also be transmitted the fecal-oral *261 route through contaminated food or water. Ordinarily, in a case where there is a potential single point source of salmonella infection [as is, or are alleged to be the Gott cooler(s) from which plaintiff drank] plaintiff's case of salmonella infection should not have been the only one in view of the fact that there were some 150 employees each shift in the airport's five zones drinking from these same Gott water coolers. However, there is no convincing evidence that anyone else on the premises also developed a salmonella infection from drinking from the same cooler(s).
7. Although, as indicated by [U.S. Air's] aforementioned answers to plaintiff's interrogatories, two other employees, ... had stomach problems from apparent stomach viruses (resulting in the first being out of work for three days and the second for four) not only is there no convincing evidence that their involved stomach problems were due to a salmonella infectionmuch less any medical evidence as to the exact nature and cause of either's stomach problems; but there is no convincing evidence that either drank from the same Gott cooler(s) that plaintiff did much less that they worked in the same zone as plaintiff or even when and where either worked at the airport.
8. There is no sufficient convincing medical evidence to any reasonable degree of medical certainty that plaintiff developed his salmonella infection from drinking contaminated water at work as opposed to the same being from eating uncooked chicken or some other contaminated food or water source. Further there is no convincing evidence that the Gott cooler(s) from which he drank contained water contaminated with salmonella bacteria, and that causational factor cannot be reasonably inferred in view of the lack of convincing evidence that anyone else drinking from the same cooler(s) developed a salmonella infection. Thus, plaintiff has failed in his burden of establishing that he developed a salmonella infection from drinking contaminated water at work.
9. ... The exact cause of ... [chronic fatigue syndrome] remains unknown as does its manner of transmission.
Even assuming arguendo that plaintiff developed the involved salmonella infection from drinking contaminated water at work under the circumstances alleged; there is no convincing medical evidence to any reasonable degree of medical certainty that his salmonella infection triggered or otherwise caused him to develop disabling chronic fatigue syndrome....
The issues are (I) whether the Commission held the plaintiff to a higher degree of proof than required by the law, and if not, (II) whether there is sufficient competent evidence in the record to support the findings of the Commission.
The defendants first contend that the plaintiff's chronic fatigue syndrome is not a compensable "injury" or "occupational disease," within the meaning of the Workers' Compensation Act (the Act) and that the Commission's Opinion and Award must be affirmed on this basis. Without deciding this issue, we assume for the purpose of this opinion that plaintiff's condition is compensable within the meaning of the Act.
I
The plaintiff argues that the Commission, in assessing the evidence offered, held him to a "higher standard of proof" than required by the Act. More specifically, the plaintiff contends the Commission held him "to a standard of beyond a reasonable doubt or at least clear and convincing evidence." We disagree.
The degree of proof required of a party plaintiff under the Act is the "greater weight" of the evidence or "preponderance" of the evidence. See 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 41 (4th ed.1993) (hereinafter Brandis and Broun). In this record there is nothing to suggest that the Commission applied an improper test to assess the plaintiff's evidence. Although the Commission did on several occasions reject certain evidence as not "convincing," we do not read this as suggesting that the Commission applied a *262 clear and convincing evidence standard. Indeed the Commission is required to evaluate the credibility of the evidence and reject any evidence it finds as not convincing. Fowler v. B.E. & K. Constr., Inc., 92 N.C.App. 237, 239, 373 S.E.2d 878, 879 (1988).
Furthermore, the Commission's rejection of the medical evidence as being insufficient "to any reasonable degree of medical certainty" does not suggest the use of an improper standard. Indeed, in order to be sufficient to support a finding that a stated cause produced a stated result, evidence on causation "must indicate a reasonable scientific probability that the stated cause produced the stated result." Hinson v. National Starch & Chem. Corp., 99 N.C.App. 198, 202, 392 S.E.2d 657, 659 (1990). Evidence is insufficient on causation if it "raises a mere conjecture, surmise, and speculation." Id. Thus the Commission merely found as a fact that the medical evidence was insufficient to support a finding that plaintiff "developed a salmonella infection from drinking contaminated water at work." It was insufficient, in the words of the Commission, because it was not based on a "reasonable degree of medical certainty." In other words, the Commission simply determined that the evidence raised no more than a possibility that the infection came from the drinking water and it had every right, and indeed the obligation, to refuse to consider that evidence as sufficient to support an award.
II
The plaintiff argues that even if the Commission used the proper degree of proof, the evidence supports a finding that plaintiff's salmonella infection was caused by contaminated water in the work place. We disagree.
Although there may be evidence in this record which supports the findings urged by the plaintiff, this Court is bound to affirm if there is sufficient competent evidence that supports the finding entered by the Commission. Russell v. Lowes Prod. Distrib., 108 N.C.App. 762, 765-66, 425 S.E.2d 454, 457 (1993). The evidence is sufficient if it is such that a reasonable mind might accept it as adequate to support the finding. 3 Arthur Larson & Lex K. Larson, The Law of Workmen's Compensation § 80.10(c) (1995); Garrett v. Overman, 103 N.C. App 259, 262, 404 S.E.2d 882, 884, disc. rev. denied, 329 N.C. 787, 408 S.E.2d 519 (1991); Brandis and Brown § 39.
The evidence in this record reveals that plaintiff was last at work on 30 June 1990 and became ill on 3 July, more than forty-eight hours, which is longer than the usual incubation period for salmonella, after he would have last been exposed to any contaminated water. There was no evidence that the water was contaminated. There was evidence that two other employees became ill, but there was not evidence that their illness was salmonella or resulted from the same water from which plaintiff would have been drinking. This evidence supports the Commission's findings at issue.
Affirmed.
JOHN C. MARTIN, J., concurs.
WYNN, J., dissents.
WYNN, Judge, dissenting.
In this appeal, plaintiff contends that the Commission erred by requiring him to prove causation to a "reasonable degree of medical certainty", rather than the applicable preponderance of the evidence standard. I agree with the plaintiff's contention and therefore, dissent from the contrary holding of the majority.
In denying the plaintiff's claim, the Deputy Commissioner made and the full Commission adopted the following pertinent findings of fact and conclusions of law:
4. In obtaining water or ice from those coolers, these same employees would occasionally stick their hands or cups or even handkerchiefs down in the coolers themselves. As a result of these practices, the coolers did provide a possible source point for the salmonella infection giving rise to the instant claim.
....
8. There is no sufficient convincing medical evidence to any reasonable degree of medical certainty that plaintiff developed *263 his salmonella infection from drinking contaminated water at work as opposed to the same being from eating uncooked chicken or some other contaminated food or water source (emphasis supplied).... Thus, plaintiff has failed in his burden of establishing that he developed a salmonella infection from drinking contaminated water at work.
9. Plaintiff further contends that as a result of his salmonella infection he developed the chronic fatigue syndrome that continues to totally incapacitate him.... The exact cause of the same disease remains unknown as does its manner of transmission.
Even assuming arguendo that plaintiff developed the involved salmonella infection from drinking contaminated water at work under the circumstances alleged; there is no convincing medical evidence to any reasonable degree of medical certainty that his salmonella infection triggered or otherwise caused him to develop disabling chronic fatigue syndrome, whose exact cause and manner of transmission has not yet been scientifically established (emphasis supplied). The point is moot, however, in the case at hand due to the initial lack of causation for the salmonella infection.
The above emphasized findings are more aptly characterized as conclusions of law. This Court is not bound by a conclusion of law by the Commission simply because it is labeled a finding of fact. Rather, if a conclusion of law, or a mixed finding of fact and law is erroneously labeled a finding of fact, that finding is not binding upon this Court. Cody v. Snider Lumber Co., 96 N.C.App. 293, 295, 385 S.E.2d 515, 517 (1989), rev'd on other grounds, 328 N.C. 67, 399 S.E.2d 104 (1991). Thus, this Court may examine on appeal a legal standard which is applied by the Commission to determine whether it was applied correctly, even though the legal standard is included in the section of the Commission's order labeled Findings of Fact. When the Commission applies an incorrect standard of law, the award must be set aside and the case remanded for a new determination using the correct legal standard. Ballenger v. ITT Grinnell Industrial Piping, Inc., 320 N.C. 155, 357 S.E.2d 683 (1987); Cauble v. Macke Co., 78 N.C.App. 793, 338 S.E.2d 320 (1986).
The Commission's finding of fact number 8 states: "There is no sufficient convincing medical evidence to any reasonable degree of medical certainty that plaintiff developed his salmonella infection from drinking contaminated water at work." (emphasis supplied). Finding of fact number 9 states: "[T]here is no convincing medical evidence to any reasonable degree of medical certainty that his salmonella infection triggered or otherwise caused him to develop disabling chronic fatigue syndrome." (emphasis supplied). These statements indicate that the Commission held the plaintiff to a standard of medical certainty for determining causation rather than the correct standard, which is a preponderance of the evidence. This was error. Ballenger, 320 N.C. at 158-159, 357 S.E.2d at 685. (The full Commission must make a complete redetermination as to whether the plaintiff has shown by a preponderance of the evidence that there was a causal link between the workplace accident and the disability/disease for which the plaintiff seeks compensation).
I find language from Keel v. H & V Inc., 107 N.C.App. 536, 421 S.E.2d 362 (1992) instructive:
Circumstantial evidence of the causal connection between the occupation and the disease is sufficient.... Medical opinions given may be based either on personal knowledge or observation or on information supplied [to the expert] by others, including the patient.... (citations omitted). Absolute medical certainty is not required.
Id. at 540, 421 S.E.2d at 366. Thus, causation need not be proven to a medical certainty in order for a plaintiff to recover in a worker's compensation case. Instead, the determination by the Commission is a preponderance of the evidence, i.e., whether it is more likely than not that the plaintiff did in fact contract the disease at work.
Accordingly, I would remand to the Commission for a determination as to whether plaintiff has met his burden of proving, by a preponderance of the evidence, a causal link between the water coolers and his contraction *264 of salmonella, and if so whether plaintiff has met his burden of proving, by a preponderance of the evidence, a causal link between the salmonella infection and plaintiff's current chronic fatigue syndrome. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352304/ | 463 S.E.2d 119 (1995)
266 Ga. 73
MINTER
v.
The STATE.
No. S95A0672.
Supreme Court of Georgia.
November 6, 1995.
Reconsideration Denied December 15, 1995.
*120 Corinne M. Mull, DeKalb County Public Defender's Office, Decatur, for Minter.
Barbara B. Conroy, Senior Asst. Dist. Atty., Decatur, J. Tom Morgan, Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Marla-Deen Brooks, Asst. Atty. Gen., Department of Law, Atlanta, Sheila A. Connors, Asst. Dist. Atty., Decatur, for State.
SEARS, Justice.
Appellant Joseph Minter appeals from a jury verdict finding him guilty of malice murder, but mentally ill. We find that the trial court erred by preventing Minter during closing arguments from discussing certain law to be included in the court's charge to the jury, but that this error was harmless. Because we reject all of Minter's other enumerations, we affirm.
The facts proved at trial show that Minter, a minister at a DeKalb County church, participated in services one Sunday morning, and then proceeded to the parking lot where his truck was parked. Minter's estranged wife followed him to the parking lot. When his wife approached him, Minter reached into his truck, retrieved a pistol, and shot and killed her. Minter then got into his truck and drove away from the church. Later that same day, Minter surrendered to police, stating that he had shot someone. At trial, Minter interposed an insanity defense.[1]
1. Having reviewed the evidence in the light most favorable to the jury's verdict, we find that a rational trier of fact could have found beyond a reasonable doubt that Minter was guilty, but mentally ill.[2]
2. The Criminal Code provides that:
[i]n all cases in which the defense of insanity is interposed, the trial judge shall charge the jury ... (A) ... that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to the law[, and] (B) ... that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.[3]
The trial court granted the State's motion to prevent Minter from discussing during closing arguments the law regarding the different *121 ramifications of verdicts of not guilty by reason of insanity, and guilty but mentally ill. The court ruled that during closing arguments, Minter could only emphasize to the jury that it should pay close attention to the court's instructions regarding those two possible verdicts. Minter claims that this ruling undermined his insanity defense, and improperly emphasized to the jury the option of finding Minter guilty but mentally ill. Subsequently, the trial court properly charged the jury regarding the different ramifications of the two verdicts, as required by the above-quoted language from OCGA § 17-7-131.
The practice of counsel "reading the law" to a jury was abolished in Georgia over twenty years ago.[4] However, counsel still may discuss, or even argue, during closing arguments the law that will be included in the court's charge. "Counsel [has] every right to refer to [the] applicable law during closing argument (i.e., [the] law that the court is going to give in the charge)."[5] Accordingly, the trial court erred by prohibiting Minter during closing arguments from discussing the law regarding the different ramifications and dispositions associated with verdicts of guilty but mentally ill, and not guilty by reason of insanity.
However, we find it highly probable that this error did not contribute to the guilty but mentally ill verdict in this case, and thus was harmless.[6] When charging the jury, the trial court properly instructed on the different ramifications of and dispositions under the two different verdicts, as required by the Code. Thus, the jury was adequately informed at the time it reached its verdict of the ramifications of its decision. Moreover, we fail to see how the court's refusal to allow Minter to discuss this law during closing arguments encouraged the jury to find Minter guilty but mentally ill, rather than legally insane, as Minter claims.[7] Accordingly, we reject Minter's first enumeration.
3. Minter claims that the trial court erred in instructing the jury that it could consider the possible verdicts in any sequence it desired. The trial court instructed the jury that (1) if it found Minter not guilty by reason of insanity, then it must cease deliberating, and (2) "if, and only if," the jury did not find Minter not guilty by reason of insanity, could it consider whether he was guilty but mentally ill. The trial court even repeated the latter instruction in order to ensure that the jury understood it. The trial court later instructed the jury to consider the possible verdicts independently, and in whatever sequence it desired.
The trial court's instruction complied with our ruling in Keener v. State that the trial court must make clear to the jury in its charge that if it finds a defendant not guilty by reason of insanity, deliberations must cease, and the jury may not go on to consider a possible guilty but mentally ill verdict.[8] It is true that the trial court's sequential instruction, standing alone, conceivably could be viewed as inconsistent with its Keener instructions. However, we find that any such inconsistency would be slight. Considering the court's charge as a whole, as we must,[9] we find no reasonable likelihood that the jury disregarded the court's Keener instruction.
4. Minter also argues that the trial court abused its discretion by allowing the State's expert witness, a pathologist, to render an opinion regarding the medical basis asserted in support of Minter's insanity defense. Minter relied upon the testimony of an expert endocrinologist and an expert psychiatrist, in support of his argument that he suffered from severe hyperparathyroidism and hypertension, which was characterized at *122 the time of the murder by psychotic, delusional, and schizoid symptoms, rendering him legally insane.
The State's witness, a county medical examiner, was qualified as an expert in forensic pathology. In addition to testifying about the gunshot wounds that killed Minter's wife, the State's expert opined that hyperparathyroidism and hypertension do not normally result in psychotic or delusional symptoms. It was established that the expert pathologist was a trained and licensed physician who had limited practical experience treating patients who suffered from hyperparathyroidism. As such, he was qualified to render an opinion regarding the medical basis asserted by Minter in support of his insanity defense.[10]
5. We have examined Minter's other enumerations of error, and find them to be without merit.[11]
Judgment affirmed.
All of the Justices concur.
CARLEY, Justice, concurring.
I fully join the majority's opinion in this case and the affirmance of the judgment of conviction entered on the verdict. I write separately to emphasize that, in Division 2 of the opinion, this Court has decided an issue of first impression in determining that counsel in an appropriate criminal case may argue "the different ramifications and dispositions associated with verdicts of guilty but mentally ill, and not guilty by reason of insanity." (Majority opinion, page 121.) This holding is mandated because OCGA § 17-7-131 now requires that the trial court instruct the jury with regard to the disposition which will result from each of those verdicts. Although under the facts and circumstances of this case we found the error of the trial court in prohibiting such argument to be harmless, it nevertheless was error. Our holding in this regard is consistent with the sanctity the courts of Georgia have always accorded to the right of argument of counsel. As he usually did, Justice Logan E. Bleckley said it most eloquently:
Argument is not only a right, but a material one. It is not a mere ornamental fringe, hung upon the border of a trial. Trial, under our system, is a co-operation of mindsa grave and serious consultation over what should be done and how the end should be accomplished. The attorneys in the cause are not mere carriers to bring in materials for constructing the edifice; they have a right, as representing the parties, to suggest where every important stone should be laid, and to assign reasons, drawn from legitimate sources, in support of their suggestions. Their reasons may be good or bad, but such as they are, they should be heard and considered.
VanDyke v. Martin, 55 Ga. 466, 469-470 (1875). Thus trial courts in this state are encouraged to carefully safeguard the right of counsel for both sides to argue within the limits of the law. An error of a trial court may be harmless, as we have found it to be in this case, but the error becomes harmless only when an appellate court determines that it is. As Justice Bleckley also said,
[a]mple opportunity for full argument is certainly an important right to the parties, and if denied on the main trial of a case, civil or criminal, the denial would furnish *123 sufficient reason, generally, for a new trial. [Cits.]
(Emphasis supplied.) Early & Lane v. Oliver & Norton, 63 Ga. 11, 18(2) (1879).
NOTES
[1] The murder was committed on June 6, 1993. Minter was indicted on July 9, 1993, and the trial was held on November 15-22, 1993. Minter filed a motion for new trial on November 22, 1993, and was sentenced to life imprisonment on November 23, 1993. The transcript was certified by the court reporter on February 17, 1994, and the motion for new trial was denied on December 9, 1994. Minter timely filed a notice of appeal with this Court on January 3, 1995. The appeal was docketed in this Court on January 19, 1995, and submitted for decision without oral argument on March 13, 1995.
[2] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] OCGA § 17-7-131.
[4] See Conklin v. State, 254 Ga. 558, 570-71, 331 S.E.2d 532 (1985); Central of Ga. R. Co. v. Sellers, 129 Ga.App. 811, 814-15, 201 S.E.2d 485 (1973).
[5] Conklin, 254 Ga. at 570-71, 331 S.E.2d 532.
[6] See Howard v. State, 261 Ga. 251, 252, 403 S.E.2d 204 (1991); Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976).
[7] See OCGA §§ 16-3-2; 17-7-131(a)(2) (1992 and 1995 Supp.); Lawrence v. State, 265 Ga. 310, 312-13, 454 S.E.2d 446 (1995).
[8] Keener v. State, 254 Ga. 699, 702-03, 334 S.E.2d 175 (1985).
[9] See Jackson v. State, 214 Ga.App. 683, 684, 448 S.E.2d 763 (1994).
[10] See Avret v. McCormick, 246 Ga. 401, 271 S.E.2d 832 (1980); Glover v. State, 129 Ga. 717, 726, 59 S.E. 816 (1907); Beatty v. Morgan, 170 Ga.App. 661, 662, 317 S.E.2d 662 (1984); Brisendine v. Hunt, 43 Ga.App. 115, 119, 158 S.E. 469 (1931); Agnor, Georgia Evidence, § 9-5 (1993).
[11] These include claims that the trial court erred (1) when recharging the jury on the offenses charged against Minter without including as part of that recharge a recitation of the possible verdicts; (2) when recharging on reasonable doubt without reciting an inaccurate statement that the State had the burden of proving Minter's sanity beyond a reasonable doubt; (3) when it failed to replace a juror who was incorrectly alleged to have had contact with a member of the victim's family; (4) in refusing to charge the jury on involuntary manslaughter and accident, and in refusing to comply with the defense's request that the jury be charged regarding the strict construction of criminal laws; (5) in giving an incomplete charge on circumstantial evidence; (6) in allowing the State to call a witness, Minter's former roommate, whose first name and address was not part of the State's witness list; (7) in admitting into evidence an inculpatory statement Minter made to the victim's uncle while incarcerated; and (8) in not charging the jury on insanity due to delusional compulsion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352307/ | 463 S.E.2d 902 (1995)
218 Ga. App. 850
NELSON et al.
v.
C.M. CITY, INC. et al.
No. A95A1429.
Court of Appeals of Georgia.
October 11, 1995.
Reconsideration Denied October 27, 1995.
Certiorari Granted January 26, 1996.
Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., Vidalia, for appellants.
Howard & Racz, Wayne S. Racz, Savannah, Dillard, Bower & East, Bryant H. Bower, Jr., Waycross, Hunter, MacLean, Exley & Dunn, Glen M. Darbyshire, Savannah, *903 Jones & Smith, Julian B. Smith, Jr., Robert B. Sullivan, Metter, for appellees.
BIRDSONG, Presiding Judge.
A fire caused extensive damage to the home of Arthur and Kathy Nelson. They contend the fire was caused by a defect in the Curtis Mathes television which they had bought 15 months before, and they filed suit against C.M. City, Inc. d/b/a Curtis Mathes Home Entertainment Center; Curtis Mathes Corporation; and NEC Technologies, Inc.
The trial court assumed for the purpose of summary judgment that the fire was caused by the television and granted summary judgment to the defendants, as follows: "[When the general public] sees a product label on a piece of merchandise they think the manufacturer has with pride placed the label on its product. This isn't so in Georgia any more because the General Assembly has created what it calls a `product seller' which has taken the place of what previously was known as a `manufacturer.' ... At first blush one would conclude that CM [Curtis Mathes] manufactured the TV; however, it seeks exemption from this products liability claim as a `products seller.' [See OCGA §§ 51-1-11(b)(1) and 51-1-11.1(a) and (b).]... CM did not provide any design information to the other entities for the TV. It did not have an `active role in the production, design or assembly' of the television set, its chassis or any of its component parts. It did not inspect the product during or after its assembly. It was not aware of any problems or defects in it. Harvey Industries, Inc. (Harvey) received the imported chassis and component parts from importer NEC Technologies, Inc. (NEC). CM paid Harvey to put a cabinet on the chassis which had been assembled by NEC Home Electronics (USA), Ltd. [`NEC Ltd.'] Harvey shipped the finished product directly to C.M. City, in a closed cardboard carton. C.M. City sold the TV to the plaintiffs.... Therefore, CM was a product seller of the TV under Georgia law [and] was not a manufacturer of the TV for purposes of strict liability as contemplated by OCGA § 51-1-11.... [CM] was not a manufacturer which functioned also as a product seller [OCGA § 51-1-11.1(a)] because it played no active role in the production, design or assembly of the TV.... Alltrade, Inc. v. McDonald, 213 Ga.App. 758 [(445 SE2d 856)]."
The trial court also found plaintiffs had shown no negligence of Curtis Mathes or C.M. City and that Curtis Mathes and C.M. City are not liable beyond the express provisions of this six-year warranty given to the plaintiffs, which limited any warranty to damages to the television set itself: "This warranty excludes all incidental and consequential damages." Citing Apex Supply Co. v. Benbow Indus., 189 Ga.App. 598, 600(1), 376 S.E.2d 694 and other cases, the trial court found this warranty exclusion was not unconscionable per se and not unconscionable in fact. The trial court also found Curtis Mathes and C.M. City were not liable for negligence of Harvey or NEC as they were independent contractors.
The trial court found that NEC "may not be considered the ostensible manufacturer of the TV chassis ... simply because of its exclusive importation, marketing and distribution of the product. It is not the alter ego of NEC Home Electronics (USA), Ltd. which manufactured the component chassis. NEC did not design, assemble or manufacture the chassis or any component part of it.... NEC as a distributor or a product seller is not liable to the plaintiffs as a matter of law [and is not a party to the warranty between Curtis Mathes and plaintiffs]."
This ruling left only Curtis Mathes and C.M. City in the suit to the extent of the warranty on the television itself. The Nelsons enumerate seven errors. Held:
1. Appellants Nelson contend, and there is evidence, that Curtis Mathes had an active role in the assembling and manufacture of the television because it designed the television: that is, it conceived the idea to have a 46-inch screen projection television built and to have it then assembled in a cabinet, and it made those specifications to others and formulated a plan to have it assembled according to its certain specifications. Further, although Harvey physically assembled the television, the Nelsons contend it did so only at Curtis Mathes's direction and according to *904 Curtis Mathes's intention, design, specifications, and formulation.
It is true, as stated regretfully by the trial judge, that Georgia lawspecifically Alltrade, supraseems to say that one who merely labels a product and sells it under his name does not stand by that name, even though the public may be led to purchase that product only because of the quality implied and represented by the name so used; and that an entity is not, merely because it labeled a product as its own and sells it, strictly liable for damages caused by that product. But the trial judge, bowing so respectfully to Alltrade, leaned too far.
What we actually said in Alltrade is "one who merely labels a product as its own prior to its sale but has no input into its making, either by design or manufacture or assembly, is a product seller and not a manufacturer." (Emphasis supplied.) Id. at 759-760, 445 S.E.2d 856. There is a big difference between the "input" and "role" which Alltrade had in merely having its name stamped on ladders, and which Home Depot had in selling them, and the role Curtis Mathes and C.M. City had in conceiving, specifying, ordering, labelling and warranting this television as having been made by Curtis Mathes. Alltrade's name was stamped on the ladder as the "ostensible manufacturer" (id. at 758, 445 S.E.2d 856), but "Alltrade did not provide any design information.... Nor did it make or assemble the ladders or any of the component parts.... Alltrade received the ladders from [the importer] in closed cardboard cartons and in turn sold the ladders in the unopened cartons to [the retailer].... Alltrade did not affix any warnings, warranties or instructions to any of the ladders or the cartons in which the ladders were received, nor did it participate in the preparation or drafting of any such instructions, warranties or warnings which were or might have been affixed to the ladders or cartons which were received and subsequently shipped by Alltrade." (Emphasis supplied.) Id. The ladder sold by Home Depot in Alltrade could have been sold by any retailer and could have been stamped with the name of any "ostensible manufacturer" and was not purchased because of a strong public perception of quality evidenced by the name of "Alltrade" stamped on the ladder.
2. OCGA § 51-1-11.1 provides that a "product seller" is one who "leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer's plan, intention, design, specifications; or formulation." (Emphasis supplied.) In other words, one is not a manufacturer if it merely sells (or assembles) a product made according to "[another] manufacturer's plan, intention, design, specifications, or formulation." Id. In this case, the television was manufactured, prepared, assembled, and packaged according to Curtis Mathes`s own "plan, intention, design, specifications, [and] formulation." Id. Curtis Mathes was not a "mere" product seller (see Ream Tool Co. v. Newton, 209 Ga.App. 226, 227(3)(a), 433 S.E.2d 67) merely because the product it sold through its agent, C.M. City, was assembled by others according to Curtis Mathes's plan, intention, design, specifications, and formulation.
One who merely sells a product is a "product seller" (id.) but one who sells a product and has "input" or is actively involved in the conception, design, or specification of the product is a manufacturer. OCGA § 51-1-11.1(a). Curtis Mathes "[had] input into [the] making, either by design or manufacture or assembly" of this television. Alltrade, supra at 759-760, 445 S.E.2d 856. Moreover, Curtis Mathes did not merely stamp its name on this television. It had this television made and assembled pursuant to its own plans, intentions, and specifications and not "pursuant to [another] manufacturer's plan, intention, design, specifications, or formulation." OCGA § 51-1-11.1(a). These statutes are strictly construed to encourage commerce, but the General Assembly did not intend to ignore the commercial reality that products of certain names are advertised for quality and are purchased for that reason, nor did it intend to make every "quality" trade name worthless to the public while retaining its vast benefit to the trade name owner. The legislature did not intend to immunize a "seller" who conceives and formulates a certain product, represents to the public that this product is of high quality *905 because it manufactured it, puts its name on the product, and as evidence and confirmation thereof, affixes to its warranties, warnings, or instructions. Cf. Alltrade at 758, 445 S.E.2d 856.
Chief Judge Pope, in his special concurrence to Alltrade said that an erroneous reading of OCGA § 51-1-11.1 is unfair, "where a company has put its own trade name on a product, thus leading the public to believe it manufactured the product even though it did not. Other states which statutorily immunize or limit the liability of nonmanufacturers... nonetheless provide in their statutes that nonmanufacturers have the liability of manufacturers if they market the product under their label, trade name or brand name. See Ohio Rev.Code Ann., § 2307.78(B)(7) (Anderson 1991); Wash.Rev. Code Ann., § 7.72.040(2)(e) (1992)." Id. at 761. Chief Judge Pope recommended that our legislature "fine tune" our law to eradicate such unfairness. The fair result advocated by Chief Judge Pope is reached in this case, however, by focusing more precisely on the exact language of OCGA § 51-1-11.1, so that it is "`strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.'" Daniel v. American Optical Corp., 251 Ga. 166, 168(1), 304 S.E.2d 383, quoted in Alltrade. As noted above, a product seller is one who sells, installs, etc. or assembles "pursuant to a manufacturer's plan, intention, design, specifications, or formulation" (emphasis supplied) (OCGA § 51-1-11.1); that is, pursuant to some other's plan, intention, design, specifications, or formulation. Curtis Mathes sold a product made and assembled pursuant to its own "plan, intention, design, specifications, or formulation."
It may not be insignificant in the jury's inquiry to consider whether Curtis Mathes must comply with federal or state regulatory standards or must report such compliance for that product, or did report such compliance or affixed a label indicating such compliance. These may be deemed by the jury to be "active roles" in the manufacture of the product.
The trial court erred in granting partial summary judgment to Curtis Mathes and C.M. City on the issue of strict liability. C.M. City may be liable as the exclusive special agent of Curtis Mathes for sale of this television, unlike the mass retailer Home Depot, Inc. in Alltrade.
3. Even if C.M. City did not offer an express warranty on the purchase of this television, it may be liable for breach of an implied warranty of fitness. See OCGA § 11-2-315; Fiat Auto USA v. Hollums, 185 Ga.App. 113, 114(1), 363 S.E.2d 312.
4. The trial court erred in concluding as a matter of law that Curtis Mathes's warranty, which excluded consequential damages, was not unconscionable in fact. The test of unconscionability is whether in the light of the commercial background and needs of the trade or case, the warranty clauses are so one-sided as to be unconscionable under the circumstances extant at the making of the contract. Zepp v. Mayor, etc., of Athens, 180 Ga.App. 72, 348 S.E.2d 673. The evidence judged in favor of the plaintiffs as respondents in summary judgment (Smith v. Ga. Kaolin Co., 264 Ga. 755, 756-757, 449 S.E.2d 85) fairly and by reasonable inference shows the Nelsons bought this television because of Curtis Mathes's name and reputation for manufacturing quality, non-defective products "backed" by Curtis Mathes. The warranty exclusion in this case was imposed by Curtis Mathes as the only condition by which appellants could acquire the reputedly high-quality Curtis Mathes product, and it resembled a law more than a meeting of the minds. See Laswell v. Chrysler Corp., 181 Ga.App. 219, 223, 351 S.E.2d 675 (special concurrence). It may have been deemed by the buyers that because Curtis Mathes manufactured the television, a provision for consequential damages such as fire damage to their home was superfluous. Thus, in the jury's view it may be unconscionable for Curtis Mathes to take advantage of its name to conceive, to have assembled, and to sell through its agent C.M. City a product as a high-quality product while failing to disclose that it did not actually manufacture that product, and then, by using a one-sided warranty, immunize itself from liability for damages *906 arising out of such defective product sold in that manner.
In Sharpe v. General Motors Corp., 198 Ga.App. 313, 315(5), 401 S.E.2d 328 and in Fiat Auto USA, supra at (2), we held the warranty exclusions to be not unconscionable; no reason was given for that conclusion in either case, but we implicitly found the clause to be "not unreasonable" in the facts of those cases. See A-larms, Inc. v. Alarms Device Mfg. Co., 165 Ga.App. 382, 385(2), 300 S.E.2d 311. We have specifically found in the facts of the case, however, that the exclusion of consequential damages is unreasonable, given the manufacturer's (Curtis Mathes's) use of its name and reputation as the manufacturer of superior quality products, while failing to disclose that it did not actually manufacture the product and yet seeking to shield itself from liability for damages consequential to a defective product; by drafting a one-sided warranty rendering the actual value of the name worthless to the buyers; and by rendering the "quality" they purchased non-existent and even dangerous. To uphold this exclusion as "not unconscionable" would ultimately make the Curtis Mathes name worthless; it is not reasonable to suppose that even Curtis Mathes intended this effect. It is reasonable to presume that Curtis Mathes intends to stand behind the products which it purports to manufacture, and it is reasonable to presume these buyers were induced to buy this high-quality product upon the belief that Curtis Mathes stood behind it. To say otherwise by ruling this exclusion to be reasonable and not unconscionable would do damage to both parties.
5. Curtis Mathes may be liable for negligence even though the chassis was built by another, if such negligence is a violation of Curtis Mathes's express warranty that the television would be free of defects for six years. OCGA § 51-2-5(3).
6. It is a question of fact whether NEC is an alter ego of NEC Ltd. According to appellants Nelson, NEC Ltd. performed its business in the United States through NEC, and there is evidence that the two entities are so intertwined that Curtis Mathes's agent could not distinguish them. The evidence is to be construed most favorably to the party opposing summary judgment (Smith v. Ga. Kaolin Co., supra), and the benefit of all reasonable inferences and doubts is awarded to them. In that light, the summary judgments of the trial court are incorrect.
Judgment reversed.
JOHNSON and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1351921/ | 593 S.E.2d 758 (2004)
265 Ga. App. 316
CASWYCK JSB, LLC
v.
CROWE.
No. A03A1662.
Court of Appeals of Georgia.
January 27, 2004.
*759 Hicks, Casey & Barber, P.C., Richard C. Foster, Marietta, Lauren E. Abbate, for appellant.
Bach, Carver, Dewberry & McNaull, John C. Bach, Stephany L. Zaic, Alpharetta, for appellee.
RUFFIN, Presiding Judge.
Carmela Crowe sued Caswyck JSB, LLC ("Caswyck") for damages she sustained when she slipped and fell at the Caswyck Apartments, an apartment community owned by Caswyck. The trial court denied Caswyck's motion for summary judgment, and we granted Caswyck's application for interlocutory *760 appeal. For reasons that follow, we affirm.
Summary judgment is appropriate when the evidence, construed most favorably to the nonmoving party, demonstrates that no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law.[1] Viewed in this manner, the record shows that, on March 7, 2000, Crowe was a tenant at the Caswyck Apartments. That evening, she and her ex-husband, Michael, took their two Rottweiler dogs for a walk in the complex. They picked up Crowe's mail at the community mailboxes, then planned to continue walking around the parking lot that circled the complex. But Crowe, who was six months pregnant at the time, was tired and hungry. Rather than completing the circle, she decided to walk back to her apartment through a breezeway in a nearby building with one of the dogs.
To access the breezeway, Crowe stepped onto a grassy area between the parking lot and the sidewalk leading through the breezeway. Although Crowe testified that the grass and sidewalk appeared to be on the same level, the grassy area actually was raised at that point, and a curb separated the two surfaces. As she stepped from the grass to the sidewalk, Crowe fell from the curb, fracturing her foot.
Crowe sued Caswyck, alleging that the curb between the grassy area and the sidewalk was deceptive, defectively designed, and dangerous. Caswyck subsequently moved for summary judgment. It argued that it lacked superior knowledge of the hazard and that Crowe failed to exercise reasonable care for her own safety. The trial court denied Caswyck's motion. We find no error.
To recover following a trip and fall, "the plaintiff must prove that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner's control."[2] Before the plaintiff bears the evidentiary burden on the second prong, the property owner must demonstrate "that the plaintiff ... intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of ordinary care, should have known existed."[3] The routine issues in a premises liability case, such as whether the plaintiff exercised ordinary care, are not subject to summary adjudication unless the evidence is plain and undisputed.[4]
1. Caswyck argues that the evidence shows, as a matter of law, that it lacked superior knowledge of the alleged hazard. We disagree.
Timothy Minton, the Caswyck employee responsible for "making sure that ... the property is running as safely as possible," admitted that he noticed the allegedly hazardous drop-off between the grassy median and sidewalk during construction of the complex, prior to Crowe's fall.[5] At that point, he was concerned that skateboarders might use the curb for tricks, "then fly into traffic." In contrast, Crowe testified that she had never before walked through the breezeway where she tripped, and she did not see the drop-off before the fall. Moreover, Crowe's expert asserted that, because of the curb's design, a person approaching the breezeway across the grass from the parking lot might "mistakenly believe that the entire grass median and adjacent concrete sidewalk are at the same level." Finally, the evidence shows that no other breezeway in the apartment complex has a similar design in terms of elevation and grading. Under these circumstances, a question of fact remains as to the parties' relative knowledge.[6]*761 2. Caswyck also argues that Crowe failed to exercise reasonable care for her own safety by leaving the paved area and crossing the grassy median. Crowe does not dispute that, if she had walked to the end of the apartment building, she could have accessed the sidewalk leading through the breezeway directly from the parking lot. Despite this direct access, she chose to cut across the grass.
Under Georgia law, a claimant who voluntarily departs from designated walkways provided by a premises owner "`assume[s] the risk of those hazards existent in [her] selected route.'"[7] And any increased risk associated with the alternate route imposes upon the claimant "a duty to exercise a heightened degree of ordinary care for her own safety."[8] As we recently explained in Williams v. Park Walk Apts., in which a tenant stepped into a hole while crossing the grass at her apartment complex:
[a]bsent evidence that the route prepared and designated by the landlord for ingress and egress was prohibitively unsafe or inaccessible, allowing liability when the plaintiff takes a shortcut over the grass would require a landlord to ensure that every possible route across his property was safe. This is not required under Georgia law.[9]
Crowe recognizes this case law, but argues that it does not control here. She points to the community rules and regulations attached to her lease, which provide that "[e]ntrances, hallways, walks, lawns and other public areas shall not be obstructed or used for any purpose other than ingress or egress."[10] According to Crowe, Caswyck specifically authorized her to enter the breezeway by walking on the grassy median. She contends, therefore, that she did not depart from an authorized walkway and, consequently, did not assume the risk of any hazards on her route. Caswyck counters that Williams and similar authority demand judgment in its favor.
Undoubtedly, Crowe cut across the grass. One of the primary cases cited by Williams, however, explains that the claimant only assumes the risk of hazards in the alternate route "where the conditions do not constitute a hazard when the traversed property is used for its intended purpose, unless... the owner has notice that the unauthorized route is being regularly used improperly."[11] Thus, we must consider the intended purpose and use of the grassy median.
The community rule cited by Crowe at least raises a question of fact as to whether ingress was a purpose of the grassy median. The rule specifically states that "lawns" should not be used for any purpose other than "ingress or egress." Furthermore, Crowe presented evidence, through expert testimony, that the design of the curb was deceptive and hazardous. Construed favorably to Crowe, this evidence arguably shows that the grassy median where Crowe fell was hazardous when used for its intended purposeingress and egress.[12]
Furthermore, even if Crowe did not use the median as intended, the evidence raises a factual question regarding Caswyck's knowledge that an "unauthorized route [was] being regularly used improperly."[13] Minton testified that, based on the condition of the grass, he knew that tenants accessed various breezeways by crossing the grassy medians bordering the complex parking lot. Because *762 the grass was not worn where Crowe tripped, Minton did not believe that tenants often crossed the median there. Nevertheless, Minton's testimony creates a factual question as to whether Caswyck knew that tenants generally used the grassy medians in front of breezeways in this manner.
Given these circumstances, we agree with the trial court that questions of fact remain regarding the reasonableness of Crowe's actions.[14] Accordingly, the trial court properly denied Caswyck's motion for summary judgment.
Judgment affirmed.
SMITH, C.J., and MILLER, J., concur.
NOTES
[1] See Williams v. Park Walk Apts., 253 Ga.App. 429, 559 S.E.2d 169 (2002).
[2] Id.
[3] Id.
[4] See id.
[5] Minton testified that he is actually employed by Cannon Company, which apparently forms part of Caswyck JSB, LLC. On appeal, Caswyck characterizes Minton as its "service director."
[6] See Christensen v. Overseas Partners Capital, 249 Ga.App. 827, 829-830(1), (2), 549 S.E.2d 784 (2001) (questions of fact remained regarding the parties' knowledge of static defect); see also Moore v. WVL Restaurant, 255 Ga.App. 762, 764, 566 S.E.2d 465 (2002) (questions of fact remained regarding property owner's superior knowledge of ice that caused plaintiff's fall, given fact that plaintiff denied seeing the ice, which "may have been difficult to see"); Anderson v. Turton Dev., 225 Ga.App. 270, 272(1), 483 S.E.2d 597 (1997) (question of fact raised as to whether property owner negligently designed and constructed a handicap ramp "in such a fashion as to make it appear to be even with the sidewalk").
[7] Williams, supra at 430, 559 S.E.2d 169. See also Gaydos v. Grupe Real Estate Investors, 211 Ga.App. 811, 813, 440 S.E.2d 545 (1994).
[8] Williams, supra.
[9] Id. at 431, 559 S.E.2d 169.
[10] (Emphasis supplied.)
[11] Gaydos, supra at 813, 440 S.E.2d 545; see also Williams, supra at 430, 559 S.E.2d 169 (citing Gaydos).
[12] See id.
[13] Gaydos, supra.
[14] See id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352082/ | 238 N.W.2d 777 (1976)
STATE of Iowa, Appellee,
v.
James Allan SPARKS, Appellant.
No. 58490.
Supreme Court of Iowa.
February 18, 1976.
*778 Robert M. Benton, of Rex Darrah Law Office, Des Moines, for appellant.
Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.
Submitted to MOORE, C. J., and RAWLINGS, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.
McCORMICK, Justice.
Defendant appeals his conviction and sentence for delivery of amphetamines in violation of § 204.401(1), The Code. The sole question presented is whether he was denied a fair trial by trial court rulings which permitted the prosecutor to ask him on cross-examination about the source of the drugs he admitted he delivered. We affirm the trial court because we do not find he was denied a fair trial.
Defendant's theory of defense was entrapment. He testified at length on direct examination about his close relationship with the government's agent. He emphasized the agent's blandishments, ingratiating conduct, and persistence in asking him to obtain drugs. He added color to this portrait of the agent's aggressiveness by claiming unfamiliarity with drug trafficking and uncertainty about his ability to carry out the requested transaction. This is illustrated by part of his testimony on direct examination:
Q. Could you tell me what it was that happened between you and Mr. Porter that got you into that car that night? A. He called me up and wanted something.
Q. He called you up and wanted some what? A. Tablets. He just said he wanted some tablets.
Q. And he had done this many times before? A. Yes.
Q. Is that correct? A. Yes.
Q. What was your answer to him that night? A. Told him I could look into it, but, "I am not sure," because, I don't know, I didn't know.
Q. Go ahead and speak up, Jim. You didn't know A. Where nothing was at, because I don'tYou know, I don't even
Q. So you told him that you would give him a call back and look around; is that correct? A. Yes.
Q. And you did so? A. Yes.
Later in his testimony on direct examination this exchange occurred:
Q. What happened then? A. He started talking, and I told him to go over to Center Street, that there might be somebody over there that might have something, some pills. I didn't know.
Q. And did they askWhat happened after that? A. We went over to Center Street.
Q. And you were with him? A. Yes.
Q. Is that correct? A. Yes, and he gave me the money and I went inside and *779 I got one baggie and took him out and he opened it and tasted one, and said he would like the other bag.
Q. Yes? A. So I went in and got the other baggie for him.
On cross-examination the assistant county attorney asked defendant whom he got the pills from. Defense counsel objected on the ground of relevancy, and the objection was overruled. Defendant said the man's name was John but he could not remember his last name. He asserted this was the first time he had ever been to that place. When asked whom he had called to find out who might have pills, he first said he did not recall, then over unsuccessful defense objection on the grounds of relevancy and scope of cross-examination identified the man he called as "Frank". He said he was not sure but thought his last name was Aldrich. Later he testified the purchase had to be made before 2:00 p. m. because he guessed that is when John went to work. When asked where John worked he was required to answer over another objection based upon relevancy. He identified a bar where he believed John worked.
Defendant contends the trial court erred in overruling his objections to these questions. All objections raised an issue of relevancy and one was addressed to the scope of cross-examination.
The basic test of relevancy is whether the evidence offered would render the desired inference more probable than it would be without the evidence. State v. Mathias, 216 N.W.2d 319, 322 (Iowa 1974). In this case, assuming without deciding the evidence was not necessary to prove the fact of delivery, State v. Ostrand, 219 N.W.2d 509, 513 (Iowa 1974), it was nevertheless probative in refuting defendant's entrapment defense. Although we are committed to the objective test of entrapment, State v. Mullen, 216 N.W.2d 375 (Iowa 1974), this does not render the circumstances surrounding the defendant's participation in the drug transaction irrelevant. As pointed out in Mullen:
"In adopting an objective test we do not intimate the transactional negotiations and conduct of the government official (or his agent) and the defendant should be ignored. What was said, and the defendant's response to the inducements, should all be considered in judging what the effect of the government conduct would be on normally law-abiding persons." 216 N.W.2d at 382-383.
The conduct of the government official or agent must be evaluated in its context, not in a vacuum. Under this principle the State had a right to test defendant's claim of unfamiliarity and uncertainty concerning the transaction by cross-examination of the kind involved here. The jury was not bound to accept his version of the transaction.
Defendant alleges any probative value of the evidence was outweighed by its undue prejudicial effect so that it should also have been excluded on that basis. His trial court objections were insufficient to preserve error on this contention. State v. Harmon, 238 N.W.2d 139 (Iowa 1976). We find no merit in his claim he was denied a fair trial by the trial court's rulings on his relevancy objections.
Nor do we find merit in his objection that the trial court abused its discretion in overruling his objection that the question relating to the identity of the person he called to obtain information about a source of pills exceeded the scope of proper cross-examination. Under the standard discussed in State v. Jensen, 189 N.W.2d 919 (Iowa 1971), we believe this matter was sufficiently introduced on direct examination to permit the challenged inquiry on cross-examination.
No reversible error appears.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352083/ | 238 N.W.2d 673 (1976)
LeFEVRE SALES, INC., a corporation, Plaintiff and Appellee,
v.
BILL RIPPLEY CONSTRUCTION, INC., a corporation, Defendant and Appellant.
Civ. No. 9188.
Supreme Court of North Dakota.
February 12, 1976.
*674 Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for plaintiff and appellee; argued by R. G. Nerison, Jamestown.
Lundberg, Nodland & Schulz, Bismarck, for defendant and appellant; argued by Robert H. Lundberg, Bismarck.
ERICKSTAD, Chief Justice.
In this case LeFevre Sales, Inc., a corporation, has filed a motion in our court asking for the dismissal of the appeal taken by Bill Rippley Construction, Inc., a corporation, from a judgment rendered against the construction company in the District Court of Stutsman County.
The basis of the motion is that the construction company failed to cause timely transmission of the record in accordance with Rule 12(c) of the North Dakota Rules of Appellate Procedure.
The pertinent part of Rule 12(c) reads:
"(c) Dismissal for failure of appellant to cause timely transmission or to docket appeal. If the appellant shall fail to cause timely transmission of the record or to pay the docket fee if a docket fee is required, any appellee may file a motion in the supreme court to dismiss the appeal. The motion shall be supported by a certificate of the clerk of the trial court showing the date and substance of the judgment or order from which the appeal was taken, the date on which the notice of appeal was filed, the expiration date of any order extending the time for transmitting the record, and by proof of service. The appellant may respond within 14 days of such service. * * *" Rule 12(c), N.D.R.App.P.
In the return to the motion, counsel for Rippley Construction asserts that counsel's law firm was asked by the bonding company for Rippley Construction to take an appeal from the judgment and that counsel was informed that pending the appeal the bonding company would attempt to negotiate a settlement of the case through its counsel in South Dakota. An affidavit filed by counsel for LeFevre Sales in response to the return to the motion asserts that no negotiations were ever entered into by anyone on behalf of Rippley Construction with counsel for LeFevre Sales.
Counsel for Rippley Construction seems to concede that negotiations may never have been entered into but nevertheless asserts that in light of the confusion which resulted from multiple counsel that this court should consider the matter as excusable neglect and permit an extension of time for the transmission of the record under such limitations and upon the assessment of such costs as this court may determine appropriate.
The pertinent part of Rule 11(d) reads:
"(d) * * * The trial court for cause shown may extend the time for transmitting the record. A request for extension must be made within the time originally prescribed or within an extension previously granted, and the trial court shall not extend the time to a day more than 90 days from the date of filing of the first notice of appeal. If the trial court is without authority to grant the relief sought or has denied a request therefor, the supreme court may on motion for cause shown extend the time for transmitting the record or may permit the record to be transmitted and filed after the expiration of the time allowed or fixed. * * *" Rule 11(d), N.D.R. App.P.
*675 Notice of appeal was filed in this case on August 11, 1975, and upon application of counsel for Rippley Construction Company, an extension of time for transmitting the record to the Supreme Court was executed by the trial court on September 18, 1975, which provided "such extension to be fifteen (15) days following the filing of the transcript by the Court Reporter herein."
That order was apparently contrary to the intent of Rule 11(d) which seems to permit the trial court to extend the time for transmitting the record no more than 90 days from the date of the filing of the first notice of appeal.
In any event, the court reporter apparently delivered the transcript to the attorney for Rippley Construction on October 23, 1975, but failed to file a certificate evidencing the date of delivery of said transcript with the clerk of the trial court and the clerk of the Supreme Court as required by Rule 10(b) of the North Dakota Rules of Appellate Procedure.
Incidentally, according to the court reporter's certificate acknowledging receipt of the order for the transcript, the order was not received until August 29, 1975. In failing to order the transcript within 10 days after filing the notice of appeal, counsel for Rippley Construction violated Rule 10(b), N.D.R.App.P. Unless the time within which the transcript is to be furnished is to be reduced because of counsel's delay, the court reporter had 60 days from the receipt of the order within which to furnish the transcript and furnished it well within that time.
Counsel for Rippley Construction asserts that it will deliver a copy of the transcript to counsel for LeFevre Sales as soon as permitted to do so by this court and that it will thereafter prepare and serve upon LeFevre Sales or its counsel an appellate brief within a reasonable time if permitted to do so by this court.
What we have in effect is about a two-month delay in the appellate process which has been precipitated by Rippley Construction, its bonding company, and its counsel. Under Rules 11(d) and 3(a) we have the discretion to permit the record to be transmitted and filed after the expiration of the time allowed or fixed by the Rules of Appellate Procedure.
The pertinent part of Rule 3(a) reads:
"(a) * * * Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal." Rule 3(a), N.D.R.App.P.
In Nodak Mutual Ins. Co. v. Loeffler, 225 N.W.2d 286 (N.D.1974), rendered approximately a year and a half after the new Rules of Appellate Procedure went into effect on March 1, 1973, our court declined to grant a motion for a dismissal of an appeal which was based upon the noncompliance of the appellant with Rules 11, 12, and 31 of the North Dakota Rules of Appellate Procedure. In that case the record and brief were filed 136 days late.
Although Loeffler is not completely comparable because the record and the brief had been filed by the date of the hearing to dismiss, what we said therein is pertinent to this case inasmuch as both cases involve error on the part of counsel. In that case counsel was confused as to when time began to run for filing the record and the brief.
In Loeffler we said:
"Recently we warned the bar that non-compliance by an appellant with our rules could result in a dismissal of an appeal. Naaden v. Hagen, 213 N.W.2d 702 (N.D. 1973); Johanson v. Nash Finch Co., 212 N.W.2d 372 (N.D.1973). An appeal has been dismissed for failure to comply with Rules 10(b) and 12(a). Beckert v. Wallace, 219 N.W.2d 160 (N.D.1974).
"The question in this case seems to be whether the violations of the rules in this case merit such severe action as a dismissal.
*676 "In Naaden, we refused to dismiss an appeal even though provisions of Rules 11 and 12 were not met. Although one reason for the denial of dismissal was the newness of the appellate rules, we also said that because of the `readiness of this appeal for calendaring at the next term, there being no showing of prejudice caused by delay, and a substantial question being involved, we deny the motion to dismiss, * * *' Naaden v. Hagen, supra, 213 N.W.2d 702 at 704.
"It should also be noted that in Beckert, where we dismissed the appeal, the case was not made ready for hearing in our court prior to the date set for hearing in our court of the motion to dismiss.
"In the instant case, the matter has been made ready for hearing, the record is here, and the appellant's brief has been filed. Furthermore, Nodak has made no showing whatsoever that it was prejudiced by the delay.
"Absent such a showing of prejudice on the part of the respondent, we are reluctant to dismiss the appeal. Although stated prior to the enactment of our new appellate rules, what we said in Hogan, infra, remains pertinent:
"`[B]ecause determination of an appeal upon the merits is favoredand because this court has the complete discretion under its rules to determine motions for dismissal of appeals based upon undue delay, and since the delay has not resulted in inconvenience, detriment or prejudice to the respondents, and since the record is now before us and the briefs have been served and filedwe shall deny the motion for dismissal.' Hogan v. Knoop, 191 N.W.2d 263 at 266 (N.D.1971)." Nodak Mutual Ins. Co. v. Loeffler, 225 N.W.2d 286 at 289-290 (N.D.1974).
Because we believe it is important to reach the merits whenever reasonably possible, we deny the motion for dismissal which was based upon Rippley Construction's failure to comply with Rule 11, N.D.R.App.P. It does not appear that LeFevre Sales will be prejudiced if Rippley is permitted to file the record with this court and serve its brief on appeal at this late date. We are also cognizant of the confusion of Rippley Construction's counsel over the need for proceeding with the appeal and of his assertion that he is prepared to move expeditiously in filing and serving the transcript and in preparing, filing, and serving the brief on appeal.
Because of the necessity of preparing the motion to dismiss and appearing in this court in connection therewith, we assess costs against Rippley Construction in favor of LeFevre Sales in the amount of $300. We expect the Rules of Appellate Procedure to be strictly adhered to hereafter in this case by Rippley Construction and we ask that Rippley Construction serve and file with the clerk of our court written proof of the payment of these costs within 20 days of the filing of this opinion.
SAND, PAULSON, PEDERSON and VOGEL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352085/ | 238 N.W.2d 590 (1976)
Catherine HART, Individually, and Catherine Hart, Trustee for the Heirs of Lee Hart, Decedent, Appellant,
v.
Thomas M. VOGT, et al., Respondents.
No. 45268.
Supreme Court of Minnesota.
January 9, 1976.
*591 Cousineau, McGuire, Shaughnessy & Anderson and Stephen W. Shaughnessy, Coulter Nelson & Sullivan and Mark Sullivan, Minneapolis, for appellant.
Jardine, Logan & O'Brien and Jerre F. Logan, St. Paul, for respondents.
Heard before KELLY, TODD and MacLAUGHLIN, JJ., and considered and decided by the court en banc.
TODD, Justice.
Catherine Hart (Hart), individually and as trustee for the heirs of Lee Hart, decedent, appeals from a judgment and from an order denying her motion for a new trial. Lee Hart was killed in the crash of a light plane piloted by Thomas M. Vogt (Vogt). The jury found Vogt was not negligent. We affirm.
On November 8, 1972, the plane, owned and piloted by Vogt, crashed while he was attempting to land in Duluth. The crash was fatal to two passengers, Lee Hart and another person not a party to this litigation. The crash apparently resulted from the accumulation of over 3 inches of ice on the wings, causing the plane to lose lift. The plane did not have de-icing equipment and was not required by Federal air regulations to have such equipment. There is disputed testimony as to whether Vogt should have anticipated icing conditions over Duluth as a result of weather briefings he had received, but it is clear that Vogt himself observed a buildup of one-half to three-quarters of an inch of ice before attempting the fatal landing approach. Vogt had in the past made a controlled landing with over an inch of ice. It was Vogt's position at trial that he could not reasonably have foreseen that the ice would build up as rapidly as it did during the fatal landing approach and that his decision to attempt the landing was not negligent.
The case was submitted to the jury by special verdict. The jury found that Vogt was not negligent; never reached the question of proximate causation and the implicit issue of superseding cause; and found that plaintiff's total pecuniary loss was $175,000.
Hart contends: (1) That Vogt was negligent as a matter of law; (2) that the trial court erred in instructing on superseding cause and the emergency doctrine; (3) that the court erred in refusing to instruct on (a) res ipsa loquitur, (b) certain Federal air regulations, and (c) the effect of the jurors' answers to the special interrogatories; (4) that the amount of damages is so insufficient as to indicate passion or prejudice of the jury; and (5) that denial of a request to bifurcate the final argument was prejudicial.
We have carefully reviewed the record and proceedings herein and conclude that none of the issues raised by Hart would justify overturning the verdict of the jury. The legal premises involved are adequately disposed of in other opinions of this court and there is no need to restate them again. Essentially, the question of Vogt's negligence was a factual question which was submitted to the jury with proper instructions and it is not our function to substitute our judgment for that of the jury even though we might affirm a contrary result. Wallace v. Nelson, 287 Minn. 438, 442, 178 N.W.2d 698, 702 (1970).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2580069/ | 390 F. Supp. 2d 604 (2005)
Bernard WHITE, Plaintiff,
v.
OMEGA PROTEIN CORP. and Omega Protein, Inc., Defendants.
No. Civ.A. H-03-3632.
United States District Court, S.D. Texas, Houston Division.
June 29, 2005.
*605 Joseph Y. Ahmad, Ahmad Zavitsanos et al, Houston, TX, for Plaintiff.
Richard R. Brann, Baker Botts, Houston, TX, for Defendants.
MEMORANDUM AND ORDER
ELLISON, District Judge.
Defendants have filed a Motion for Summary Judgment and a Motion in Limine. Having considered the parties' filings and arguments at the motion hearing, as well as the relevant case law, the Court GRANTS Defendants' Motion for Summary Judgment (Doc. # 27). Defendants' Motion in Limine (Doc. # 37) is therefore DENIED AS MOOT.
I. BACKGROUND
In 1998, Joe von Rosenberg, President and CEO of Defendant Omega, hired Plaintiff as a Corporate Vice President in charge of government affairs, investor relations, and public affairs; Plaintiff was then 50 years old. Omega is in the business of catching fish, processing those fish, and selling the end-product (either fish meal or oil).[1] Because all Omega products are derived from menhaden, a small fish which is abundant in the Gulf of Mexico and the Atlantic, any political or regulatory actions that jeopardize the company's fishing activities are of critical importance. Plaintiff's primary responsibilities were to oversee the lobbying efforts to monitor and respond to these political and regulatory threats.
For the first few years of his employment at Omega, Plaintiff worked with little supervision from other executives. After an incident that occurred in December 2001, however, von Rosenberg began to question Plaintiff's ability. In particular, New Jersey passed a law that banned Omega from fishing in New Jersey state waters (the "New Jersey Incident"). Because Plaintiff was responsible for defeating this legislation, von Rosenberg believed Plaintiff was responsible for the setback.
In September 2002, a second troubling incident in government affairs occurred; Omega was surprised by a public hearing held by the Mississippi Marine Resources Commission concerning whether to restrict Omega's Mississippi fishing grounds (the "Mississippi Incident"). Von Rosenberg concluded that Plaintiff had failed adequately to monitor the Mississippi coastal counties. The regulation was ultimately defeated, but at considerable expense to Omega, which had hired an outside law firm and experts to handle the public hearing. Omega felt this matter was very serious and reported it as a possible adverse outcome in an SEC Form 10-Q.
Von Rosenberg considered terminating Plaintiff at this point because he had lost confidence in Plaintiff's ability to run government affairs; however, he was persuaded by other Omega employees to give Plaintiff another chance. At this time, Plaintiff did experience a change in his job duties. Von Rosenberg shifted some of Plaintiff's responsibilities to other executives so that Plaintiff could focus on government affairs; Plaintiff's travel budget was significantly reduced and he was instructed *606 to travel less and delegate more tasks; and Plaintiff lost some of his autonomy.[2]
In January 2003, Omega was surprised again when Alabama passed a regulation that restricted a portion of Omega's fishing grounds (the "Alabama Incident"). Von Rosenberg again concluded that Plaintiff had failed to monitor appropriately the activities of the Alabama Department of Conservation and Natural Resources. After another costly effort to repair the damage, Omega was able to recoup a large portion, but not 100%, of the total fishing waters originally targeted by the Alabama regulation.
This final incident caused von Rosenberg to lose all confidence in Plaintiff's ability to run government affairs, so he terminated Plaintiff in March 2003. Von Rosenberg believed that Plaintiff was not effective as an executive and overseer of government affairs, but acknowledged that Plaintiff had developed valuable institutional knowledge while working at Omega; therefore, von Rosenberg hired Plaintiff as a consultant.
After his termination, Plaintiff filed a claim of discrimination with the Equal Employment Opportunity Commission ("EEOC"). He then brought this suit stating claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Defendants moved for summary judgment on all claims. Plaintiff has agreed to dismiss with prejudice his claim under the ADA.
II. SUMMARY JUDGMENT STANDARD
A motion for summary judgment under Federal Rule of Civil Procedure 56 requires the Court to determine whether the moving party is entitled to judgment as a matter of law, based on the evidence thus far presented. See Fed.R.Civ.P. 56(c). "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 the moving party is entitled to judgment as a matter of law." Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001) (citations and quotations omitted). A genuine issue of material facts exists if a reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). The Court views all evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Id.
"[A] complete failure of proof concerning an essential element of [Plaintiff's] case necessarily renders all other facts immaterial" and "mandates the entry of summary judgment" for Defendants. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If Defendants show that there is a lack of evidence to support Plaintiff's case, Plaintiff "must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Kee, 247 F.3d at 210 (citation and quotation omitted).
III. AGE DISCRIMINATION
Under the ADEA, it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate *607 against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Plaintiff's claim is governed by the burden-shifting test established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Plaintiff must first establish a prima facie case of employment discrimination. If Plaintiff meets this burden, then Defendants must articulate a legitimate, non-discriminatory reason for terminating Plaintiff; this serves to rebut the presumption of age discrimination that is created by Plaintiff's prima facie case. If Defendants present this evidence, then Plaintiff bears the burden of presenting probative evidence that Defendants' stated reason was a pretext for discrimination. Davis v. CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir.1996).
A. Defendants' Legitimate, Non-Discriminatory Reasons for Termination
The Court need not determine whether Plaintiff can make a prima facie case of discrimination, because even if he could, he cannot prove that Defendants' legitimate, non-discriminatory reasons for firing him are pretext. Normally, a court will decide if a plaintiff has made a prima facie case of age discrimination before determining whether the defendant has offered a legitimate, non-discriminatory reason for terminating the plaintiff. The facts of this case, however, make it starkly obvious that Plaintiff cannot carry his ultimate burden of showing that Defendants' legitimate, non-discriminatory reasons for terminating him are pretext. Therefore, rather than belaboring the prima facie analysis, the Court focuses on Plaintiff's ultimate burden, which he clearly has not carried.
Defendants offer legitimate, non-discriminatory reasons for firing Plaintiff. Most importantly, Plaintiff made three significant mistakes that demonstrated his inability effectively to oversee government affairs a key aspect of his position. Furthermore, Plaintiff had a fundamental disagreement with the CEO regarding the future of the company. Finally, Plaintiff was hired and fired by the same person, which produces an inference that age discrimination was not the motive behind Plaintiff's termination. These reasons strongly rebut any presumption of age discrimination, and Plaintiff simply cannot show that they are pretext.
Defendants hold Plaintiff responsible for what they perceive to have been three major errors in the area of government affairs: the New Jersey, Mississippi, and Alabama Incidents. These Incidents reveal that Plaintiff was unsuccessful at defeating adverse legislation, and twice failed adequately to monitor activity targeting Omega's fishing grounds, which is a vital component of Omega's business.
After each of the Incidents, von Rosenberg's confidence in Plaintiff diminished. Throughout Plaintiff's employment with Omega, von Rosenberg continually took more and more responsibilities away from Plaintiff and parceled them out to other employees. Plaintiff also made it clear that he disagreed with von Rosenberg's future vision for Omega and was reluctant to embrace the new move to the high-margin nutraceutical areas typified by the company's Omega-3 good fat products. Von Rosenberg was ready to terminate Plaintiff after the Mississippi Incident, but decided to give him one more chance. He finally terminated Plaintiff a couple of months after the Alabama Incident.
These legitimate reasons for terminating Plaintiff are further buttressed by the "same actor" inference that Defendants *608 are entitled to in this case. Plaintiff was hired at the age of 50 by von Rosenberg Plaintiff was fired five years later, also by von Rosenberg. The fact that Plaintiff was hired and fired by the same person produces an inference that age discrimination was not the motive behind Plaintiff's termination. This "same actor" inference was adopted by the Fifth Circuit in Davis v. CSC Logic, Inc., stating:
[C]laims that employer animus exists in termination but not in hiring seem irrational. From the standpoint of the putative discriminator, it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them), only to fire them once they are on the job.
82 F.3d at 658 (citations and quotations omitted). Because Plaintiff was hired and fired by von Rosenberg, it is illogical to conclude that Plaintiff was fired due to age discrimination.
B. Plaintiff Cannot Show Pretext
The ultimate determination in this case is whether a reasonable fact finder could infer discrimination. Crawford, 234 F.3d at 902. Plaintiff bears the burden of demonstrating that Defendants' proffered reasons are pretext. "A mere scintilla of evidence of pretext does not create an issue of material fact in all cases." Id. Plaintiff "must present `sufficient evidence to find that [Defendants'] asserted justification is false.'" Id. at 903 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).
Plaintiff's attempts to show pretext are unsuccessful. Plaintiff does not dispute that he made the three mistakes alleged by Defendants, he simply challenges their significance and contends they are not the reasons for his termination. Plaintiff trivializes the Incidents and concludes that because Omega was eventually successful in battling some of the adverse regulations, his poor performance is not a proper reason to fire him. Plaintiff misses the point of Defendants' argument. Regardless of the eventual outcome, the fact that these Incidents even occurred caused von Rosenberg to doubt Plaintiff's ability to run government affairs.
Plaintiff also alleges that because he was never reprimanded or criticized for any of the Incidents, they could not have been the reasons for his termination. Yet Plaintiff admits that several of his duties were transferred to other employees so that he could focus his time on government affairs, that he lost autonomy in his position, that his travel budget was reduced significantly, and that he was instructed to travel less and delegate more tasks. Plaintiff's iteration of the facts supports Defendants' explanation that he was fired because von Rosenberg lacked confidence in Plaintiff and felt that he was not adequately performing his job.[3]
Plaintiff explains that he received a bonus each year that the executives were eligible to receive a bonus, and when he rated his performance an "A" in his year-end self-evaluation, von Rosenberg never responded to the evaluation. Plaintiff believes these facts show that he was an adequate employee, and therefore, Defendants' reasons for firing him are pretext. First, Omega only gave its executives one *609 bonus after 2001, which is when the problems started occurring in government affairs, and Plaintiff's receipt of a bonus is not adequate evidence to rebut Defendants' explanation that by March 2003, von Rosenberg had lost all confidence in Plaintiff's abilities as an executive. Second, Plaintiff's self-evaluation memorandum was written in October 2001, and therefore predates any of the Incidents. In any event, Plaintiff's opinion of his own performance is not relevant. See Swanson v. GSA, 110 F.3d 1180, 1186 (5th Cir.1997) (explaining that the pretext question does not concern what the employee thought of his own behavior, it concerns what the employer thought of the employee's behavior).
Next, Plaintiff argues that because Omega hired him as an independent contractor after terminating him, that it could not really have believed he was an inadequate employee. Plaintiff's argument is based on a faulty premise. Plaintiff states that he performed the exact same duties as an independent contractor as he had been performing before he was terminated. This is simply not true. As an independent contractor, Plaintiff was a supervised consultant, rather than a high-level, autonomous executive; lobbyists who had previously reported to him ceased to do so; he was no longer involved in making strategic decisions affecting government affairs; he continued to handle "day-to-day" issues, but was not to handle matters of importance; and Plaintiff no longer participated in executive meetings. That Defendants wanted to use Plaintiff as an independent contractor to take advantage of the institutional knowledge he had acquired in his five years at Omega does not call into question Defendants' belief that he was not an adequate executive.
Finally, Plaintiff argues that he does not need to demonstrate pretext because he has evidence of direct discrimination. Plaintiff alleges that when he was fired, von Rosenberg told him that he was "tired and old."[4] Plaintiff first made this belated accusation during his deposition, eighteen months after he was fired. Plaintiff never mentioned this comment in a memorandum he wrote five days after his termination that documented the conversation he had with von Rosenberg nor did he state it in the sworn statement attached to his EEOC charge filed on May 23, 2003, in his Original Complaint filed on September 10, 2003, in his First Amended Complaint filed on December 3, 2003, or in his Second Amended Complaint filed on April 26, 2004. As Defendants point out, Plaintiff's first mention of the "too old and tired" comment occurred only three weeks after one of the cases he relies on in his briefing was issued, containing these exact same words.[5] Although the Court must construe all facts in favor of Plaintiff, it is not required to accept as true a statement that no reasonable person would believe. See Seshadri v. Kasraian, 130 F.3d 798, 802 (7th Cir.1997) (stating that in determining summary judgment, "testimony can and should be rejected without a trial if, in the circumstances, no reasonable person would believe it."). Plaintiff has not adequately shown direct evidence of age discrimination.
Because Plaintiff has not shown that Defendants' reasons for terminating him are pretext, Defendants are entitled to *610 summary judgment on Plaintiff's claim of age discrimination.
IV. ERISA
Plaintiff also claims that Defendants wrongfully interfered with his employment benefits in violation of ERISA. Under ERISA, it is unlawful for an employer "to discharge ... or discriminate against a participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140. To prove a violation of ERISA, Plaintiff must establish a prima facie case that Defendants fired him with a specific discriminatory intent to violate the Act. Unida v. Levi Strauss & Co., 986 F.2d 970, 979-80 (5th Cir.1993). Specific intent must be proven with positive evidence, speculation and conclusory allegations will not suffice. See Stafford v. True Temper Sports, 123 F.3d 291, 295-96 (5th Cir.1997). To dispel the inference of discrimination, Defendants must articulate a legitimate, non-discriminatory reason for its actions. If this occurs, then the burden shifts back to Plaintiff to demonstrate pretext. Id.
Plaintiff contends that Defendants had the specific intent to terminate his employment benefits when they fired him because he was immediately re-hired as an independent contractor, performing the identical duties he had been performing prior to his termination; thus, the only effective change was that he would no longer be entitled to any employee benefits, including retirement benefits, disability benefits, health insurance, and life insurance. As previously discussed, Plaintiff's argument is without merit. He did not perform the same functions or have the same responsibilities as an independent contractor as he had possessed as a vice president. Firing Plaintiff from his vice president position, then rehiring him as a supervised independent contractor with greatly reduced responsibilities, does not evince a specific intent to violate ERISA. Furthermore, Defendants have adequately provided legitimate reasons for terminating Plaintiff, which Plaintiff has not shown to be pretext. Defendants are therefore entitled to summary judgment on Plaintiff's ERISA claim as well.
V. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment (Doc. # 27) is GRANTED. All of Plaintiff's claims are DISMISSED WITH PREJUDICE. Defendants' Motion in Limine (Doc. # 37) is DENIED AS MOOT.
IT IS SO ORDERED.
NOTES
[1] Omega produces protein-rich fish meals and oils, which are generally sold as animal and aquaculture feeds and fertilizers. In recent years, Omega has also begun to produce refined, taste-free, colorless oils high in long-chain Omega-3 fatty acids (commonly known as "good fats") for use in human foods.
[2] This reduction in Plaintiff's tasks occurred after the Mississippi Incident, which coincided with Plaintiff's return to full-time work after having worked part-time so that he could receive cancer treatment.
[3] Plaintiff also does not dispute that he disagreed with von Rosenberg's vision for the future of the company, but argues that it could not have been a reason for his termination because von Rosenberg did not mention it when he terminated Plaintiff. In light of the overwhelming evidence supporting Defendants' non-discriminatory reasons for firing Plaintiff, Plaintiff's case does not turn on this issue, and it warrants no further discussion.
[4] Defs.' Mot. for Summ. J. Ex. 2 at p. 115. Later, in his affidavit, Plaintiff states that von Rosenberg told him he was "too old and tired." Pl.'s Resp. to Defs.' Mot. for Summ. J. Ex. 1 at p. 3.
[5] Hofmann v. District Council 37, 2004 WL 1936242 (S.D.N.Y. Aug.31, 2004) ("he was too tired and old to pay attention"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352284/ | 71 Wis.2d 524 (1976)
238 N.W.2d 725
INTERNATIONAL CHIROPRACTORS INSURANCE COMPANY, Respondent,
v.
GONSTEAD, D.C., and another, Appellants:
GONSTEAD CHIROPRACTIC CLINIC, and others, Defendants.
No. 618 (1974).
Supreme Court of Wisconsin.
Submitted on briefs February 4, 1976.
Decided March 2, 1976.
For the appellant, Douglas B. Cox. D.C., the cause was submitted on the brief of Robert R. Studt and Jenswold, Studt, Hanson, Clark & Kaufmann of Madison.
For the respondent the cause was submitted on the brief of Axley, Brynelson, Herrick & Gehl of Madison.
WILKIE, C. J.
This is an insurance coverage case. The general issue on appeal is whether the plaintiff-respondent, International Chiropractors Insurance Company, *525 insured Douglas Cox, a Mount Horeb chiropractor, against chiropractic malpractice in its insurance policy issued to Clarence Gonstead, a chiropractor with whom Cox was associated in chiropractor practice. It did not. We therefore affirm the trial court ruling against coverage in a declaratory judgment action commenced by the plaintiff-respondent insurance company against the defendant-appellants Douglas Cox and Clarence Gonstead, and the defendants Gonstead Chiropractic Clinic, Karakahl, Inc., and Tamara and John Tatarchuk. The dispute arises from alleged chiropractic malpractice in connection with treatment of Tamara Tatarchuk by Douglas Cox during July of 1972. The Tatarchuks had commenced a lawsuit for alleged chiropractic malpractice against Douglas Cox (at a later date Clarence Gonstead was added as a party defendant in the Tatarchuk litigation and was subsequently dismissed). Defense of this action was tendered to the plaintiff-respondent company, and after denying coverage that company commenced the declaratory judgment action seeking a ruling to the effect that its policy did not cover the activities of Cox as a chiropractor.
The primary question on this appeal is whether the malpractice insurance policy issued in 1968 and insuring Gonstead provided coverage for the alleged malpractice of Cox. In his 1968 application for a malpractice insurance policy issued by the plaintiff-respondent company, Gonstead, who was a practicing chiropractor in Mount Horeb, Wisconsin, and a major figure at the Gonstead Clinic, listed under the designation "additional assistants to be covered under this policy," the name of Cox and other chiropractors practicing at the clinic. He left blank that part of the application which requested a "short statement as to partnership or other chiropractic business relationship."
The policy relevant to this appeal was issued on October 1, 1971, and provided coverage until October 1, 1972. *526 It listed only Gonstead as the insured. Under item 2, "names of nurses, technicians or receptionists," Cox was listed, along with other chiropractors and technicians at the Gonstead Clinic. The policy provided that the coverage was being provided "in consideration of the representations made in the application of the insured herein," and in consideration of the premium payment. The extent of coverage was defined as follows:
"... against all sums which the insured shall become obligated to pay by reason of the liability imposed by law from any claim against the insured for damages on account of any malpractice in connection with professional services rendered or agreed to be rendered to a patient by the insured as a chiropractor, including the acts of any technician or nurse employed by insured while acting under his direction...."
The policy also included the following exclusion:
"No liability shall be accepted by the company on account of liability to the insured arising out of agency, partnership or employment."
Cox was neither a chiropractor's assistant nor a chiropractic technician. He was a licensed chiropractor, and practiced his profession along with the other chiropractors at the clinic.
The plain and simple provisions of the policy make it abundantly clear that Cox's personal liability for alleged malpractice as a chiropractor is not covered by the policy. The policy clearly and unambiguously lists Gonstead as the one named insured, as did the application. Gonstead is covered for sums which he may be obligated to pay for "any malpractice in connection with professional services rendered or agreed to be rendered to a patient by the insured as a chiropractor, including the acts of any technician or nurse employed by insured while acting under his direction." He is thus covered for any personal liability and for any vicarious liability which *527 may be imposed upon him for the negligence of his assistants while acting under his direction. In other words, this is an individual malpractice insurance policy. Neither the Gonstead Clinic as a separate entity nor Cox as a chiropractor are directly covered.
When the terms of an insurance policy are plain on their face the policy should not be rewritten by courts to bind the insurer to a risk it was unwilling to assume and for which it was not paid.[1] When the provisions of the policy itself are not in any way ambiguous, there is no need to resort to technical rules of construction or to consider extrinsic evidence. The proper procedure is for the court to interpret the words of the policy from the point of view of a reasonable person in the position of the insured.[2]
It is true that Cox is listed as a nurse, technician, or receptionist in the policy, and as an assistant in the application. He is in fact neither a chiropractic technician nor a chiropractic assistant, as those terms would be understood by Gonstead, Cox, or any chiropractor. Even if the assumption is made that Cox could under certain circumstances function as Gonstead's employee-assistant, it is clear that the policy would not cover him directly, but would indemnify Gonstead, and only in situations where the assistant or technician is "acting under his direction."
It is evident that Cox was not "acting under [the] direction" of Gonstead in his treatment of Tamara Tatarchuk. Tamara Tatarchuk came to the clinic and asked for Cox personally. He regarded her as his patient and took full responsibility for her treatment. He diagnosed and treated her as a chiropractor, and not as a chiropractor's assistant or technician. The only connection of *528 Gonstead to this treatment came in an X-ray consultation initiated by Cox, and this fact alone did not reduce Cox to an employee-assistant acting under the direction of Gonstead. Cox's treatment of Tamara Tatarchuk is not covered by the terms of Gonstead's malpractice policy.
The appellants raise the further propositions for the first time on this appeal that (a) the insurance company is equitably estopped from denying that Cox is directly and personally covered by the policy, and (b) the insurance contract should be reformed to provide for such protection.
In addition to the fact that estoppel was not pleaded nor claimed at trial, and that ordinarily estoppel cannot be raised for the first time on appeal,[3] it is also clear on the merits that estoppel does not lie here. The coverage of this policy is limited to Gonstead, and Cox cannot avail himself of the doctrine of estoppel to impose a far greater risk upon the insurance company than it was prepared to assume. The Wisconsin rule is, as stated many times, that the doctrine of estoppel cannot be used to enlarge the coverage of an insurance policy.[4]
Although it does not appear from the record that reformation of the insurance contract was sought in the trial to the court below, it is clear that in any event Cox has not established the basis for reforming the contract to provide coverage for him. To win the reformation of an insurance contract, the insured must prove that there was a prior oral agreement between the parties which, through mistake or negligence, the written *529 policy does not express, although it was intended to so state.[5] Here there was no such oral agreement or understanding to which the reformed contract could conform.
All the mistakes on the application were made by Gonstead and not by anyone associated with the insurance company. Gonstead listed Cox as a chiropractic assistant when he clearly was not. A chiropractic assistant is a well-defined term in the chiropractic field, for which there exist specialized educational programs and separate degrees. A chiropractic assistant is strictly a medical aide who assists a chiropractor with certain details of treatment, but does not make diagnoses or administer chiropractic manipulations or adjustments.[6] It was also Gonstead's mistake when he left the space blank where the application requested information about the applicant's chiropractic partnership and business relationship.
It must also be concluded that the ability to remedy this mistake and the opportunity to do so were within the power of Gonstead, and not the company. A generalized knowledge by certain individuals in the International Chiropractors Association and the insurance company as to Cox's identity did not shift the burden in this regard to the company. All the company did was to take the "assistants" listed on the application, and quite understandably place them in the similar classification of nurses, technicians, and receptionists in the policy. When the policy was issued it listed Cox as a nurse, technician or receptionist. In spite of its manifest falsity, this designation was never corrected by Gonstead or anyone at the clinic during the four years the policy *530 was in effect. In fact, the clinic's accountant on two occasions corresponded with the company regarding personnel changes in this item. On both occasions he referred specifically to the classification "nurses, technicians, or receptionists," and on both occasions left Cox listed there.
Appellants argue that this court decided in Jeske v. General Accident Fire & Life Assur. Corp.[7] that the insured's failure to read the policy and discover the mistake is no bar to reformation. This is certainly true, but only in the situation where the company or its agent made the original error, not the insured. Also, this holding was based upon the fact that most insurance policies are "`couched in technical terms and often complicated and involved.'" In Martinson v. North Central Life Ins. Co.[8] this court stated that, when a policy is not a multi-page, esoteric document, a failure to read and understand the simple terms of the policy does not relieve the insured of the effect of the policy provisions. The policy in this case is a one-page document, in fairly simple language. The mistakes are on the front of the page, and in a very prominent position. In item 1, Gonstead is listed as the only insured, and in item 2, Cox is listed as a nurse, technician or receptionist. Given the source of the mistake, and its prominence in the policy over a four-year period, it must be concluded that Gonstead had a duty to read the policy and rectify this glaring error.
Irrespective of Gonstead's duty to read, it is clear that there was never an oral agreement or understanding between the parties to which the written contract can be reformed. There was only Gonstead's subjective belief that Cox was fully covered which, under all the circumstances, was an unjustifiable view. Gonstead never had *531 any direct personal contact with anyone associated with the company, and it is obvious that the company at all times understood that it was insuring only Gonstead for his personal liability and his vicarious liability for the malpractice of his nonchiropractor assistants.
By the Court.Judgment affirmed.
NOTES
[1] Garriguenc v. Love (1975), 67 Wis. 2d 130, 135, 226 N. W. 2d 414, and cases there cited.
[2] Id., at pages 134, 135, and cases there cited.
[3] Joplin v. John Hancock Mut. Life Ins. Co. (1972), 55 Wis. 2d 650, 200 N. W. 2d 607; Estate of Voss (1963), 20 Wis. 2d 238, 121 N. W. 2d 744.
[4] Madgett v. Monroe County Mut. Tornado Ins. Co. (1970), 46 Wis. 2d 708, 710, 711, 176 N. W. 2d 314; Ahnapee & Western Ry. v. Challoner (1967), 34 Wis. 2d 134, 142, 148 N. W. 2d 646; Artmar, Inc. v. United Fire & Casualty Co. (1967), 34 Wis. 2d 181, 186, 148 N. W. 2d 641, 151 N. W. 2d 289.
[5] Schuster v. Germantown Mut. Ins. Co. (1968), 40 Wis. 2d 447, 162 N. W. 2d 129; Ahnapee & Western Ry. v. Challoner, supra, footnote 4.
[6] The Dictionary of Occupational Titles, Vol. 1, Definitions of Titles, pp. 126, 127.
[7] (1957), 1 Wis. 2d 70, 92, 83 N. W. 2d 167.
[8] (1974), 65 Wis. 2d 268, 277, 278, 222 N. W. 2d 611, 225 N. W. 2d 604. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352647/ | 804 P.2d 166 (1991)
ASPEN SKIING COMPANY, Petitioner,
v.
Leslie PEER, Respondent.
No. 89SC548.
Supreme Court of Colorado, En Banc.
January 14, 1991.
Rehearing Denied February 4, 1991.
*167 Arnold & Porter, James E. Scarboro, Tim Atkeson, Barry K. Arrington, Alfred T. McDonnell, Denver, for petitioner.
Goss & Waltz, Douglas K. Goss, Sherman & Howard, Lee Dale, Denver, for respondent.
Justice QUINN delivered the Opinion of the Court.
We granted certiorari to review the unpublished decision of the court of appeals in Peer v. Aspen Skiing Co., No. 88CA0190 (August 10, 1989), which affirmed the trial court's denial of a motion for a new trial filed by the defendant, Aspen Skiing Co. (Aspen Skiing), based on newly discovered evidence in the form of allegedly perjured testimony offered by the plaintiff, Leslie Peer, in the trial of his personal injury claim. The court of appeals did not consider the allegedly perjurious nature of Peer's testimony, but instead held that Aspen Skiing *168 had failed to establish reasonable diligence in discovering the evidence. We agree with the court of appeals' conclusion that Aspen Skiing failed to satisfy the reasonable diligence requirement, and we also hold that Aspen Skiing failed to demonstrate that Peer gave perjured testimony during the trial. We accordingly affirm the judgment of the court of appeals.
I.
A summary of the factual and procedural history of this case will place the issue before us in proper focus. In August 1984 Peer sued Aspen Skiing for serious and totally disabling injuries as a result of a skiing accident on Thanksgiving Day, November 25, 1982, which was the first day of the ski season, on a slope known as "Ruthie's Run" located on Aspen Mountain in the City of Aspen and operated by Aspen Skiing. The accident occurred when Peer skied over a steep depression caused by a service road that traversed Ruthie's Run. As a result of the accident, Peer suffered a broken neck and was rendered a quadriplegic. He alleged in his complaint that Aspen Skiing was negligent in creating and maintaining a sudden and steep transition or depression on the slope and in failing to adequately warn skiers of its presence. Aspen Skiing denied any negligence and alleged that Peer assumed the risk of a known danger and that his injuries were caused by his own negligence.
One week after the accident, on December 2, 1982, Richard LaVigne, who was a close friend of Peer and was skiing with him on the day of the accident, made a statement to an investigator about the manner in which the accident occurred. LaVigne told the investigator that he and Peer had been skiing together and were testing a giant slalom ski, which was designed to be skied at very fast speeds, and then stated:
I think the problem was that it was a little after 2, the sun is very low this time of the year here and the light, the sun had just gone behind a cloud and it was very flat light and he had smoke-colored goggles on, dark-colored goggles I would have to, I'd have to guess that he just didn't see it.
LaVigne acknowledged in his statement that he knew of the presence of the transition in the slope where the accident occurred and told the investigator that Peer "had skied through it two or three times and I'm sure, you know, at one time knew it was there." LaVigne also told the investigator that immediately before the accident he had reduced his speed, then saw that Peer was not slowing down at all but looking beyond the transition, and at that point LaVigne knew that Peer had not seen the transition and was going to have an accident.
After the complaint was filed, Aspen Skiing served Peer with 183 interrogatories. Peer answered these on September 4, 1985. In his answers Peer acknowledged that he was an expert skier and had skied "most if not all of the ski trails on Aspen Mountain" over a period of several years prior to the accident. In another answer Peer stated that he did not know if he had skied Ruthie's Run prior to the accident but he thought he had "skied this trail once each time I skied." Peer acknowledged in his answers that Ruthie's Run was a "more difficult" trail and described the accident as follows:
I was skiing down a slight pitch after the flat of upper Ruthie's Run making turns when I encountered an unexpected irregularity in the slope where there was a sharp drop-off and transition from the slope to the service road. I found myself airborne and weightless. I landed on my head, heard a sharp crack in my neck and became unconscious.
I was traveling downhill in full line preparation to a turn to the left and my speed was comfortable for the conditions and the terrain. I estimate that my speed was approximately 15 to 20 miles per hour at the transition where the accident occurred. In the upper flats I estimate my speed to have been 25 miles per hour. I was generally traveling in a northerly direction.
*169 When asked in the interrogatories to describe any objects or conditions that contributed to the accident, Peer responded:
Failure to post a sign warning of the dangerous condition encountered and permitting this dangerous condition to exist on the slope.
Peer was also asked to identify any witnesses to the accident or witnesses to the events immediately preceding or following the accident. He responded as follows: Richard LaVigne, Post Office Box 7845, Aspen, Colorado, who was skiing with him at the time of the accident; Penny Gage, 3120 Kittrell Court, Boulder, Colorado, and John B. and Jackie Wogan, 1133 Race Street, Denver, Colorado, all of whom were riding the lift and saw the accident; and Michael Teschner, Post Office Box 4638, Aspen, Colorado, who had seen him skiing prior to the accident. Peer also disclosed to Aspen Skiing the following names and addresses of the persons with whom, in addition to LaVigne, he had skied on the date of the accident prior to its occurrence: Carlos Gendron, 512 E. 79th Street, New York City, New York; Jeanie Renchard, Post Office Box 9296, Aspen, Colorado; David Foster, 437 West Smuggler, Post Office Box 8117, Aspen, Colorado; Janet M. Lightfoot, Post Office Box 9456, Aspen, Colorado; and Lefty Brinklman, Aspen, Colorado; and a person by the name of Marty.
In 1985, approximately three years after the accident and two years prior to trial, Aspen Skiing deposed LaVigne and Peer. During LaVigne's deposition, Aspen Skiing asked him to review his statement of December 2, 1982, and to correct or explain any inaccuracies in the statement. LaVigne responded as follows:
There are a couple of things that do not seem accurate. And I know I said these things. I indicated in a couple of different paragraphs that Les [Peer] had skied that run two or three times previous. As I think about it now, I don't think that he had skied that run previously. I had skied it two or three times previously, but I don't believeI am not positive. He may have skied it on his own. You would have to ask him.
In the course of deposing Peer, Aspen Skiing also confronted him with LaVigne's statement to the investigator. Peer stated that he had not skied Ruthie's Run earlier that day but indicated that he would need a map of Aspen Mountain "to be able to say for sure" what trails he had skied prior to the accident. Peer also testified in his deposition as follows:
Q: Have you by any chance reviewed a statement given by Dick LaVigne?
A: I think I have. Yes.
Q: Do you recall in that statement ... he [LaVigne] at one point in his statement indicated that you and he had skied Ruthie's [Run] two or three times earlier that day[?]
A: I think he's in error in that. I think that was a bit of a traumatized day for [LaVigne] and I think it's possible that
Q: Do you recall that statement he made, because I'll show it to you[?]
A: No. I've been shown the statement.
Q: So you know the statement to which I'm referring?
A: Yes, I do.
Q: And you think he's in error about that particular aspect of the statement?
A: Yes.
Trial to a jury commenced on September 24, 1987. In opening statement Peer's counsel told the jury that the evidence would show that Peer was skiing Ruthie's Run with LaVigne and was approaching the area where the service road traversed the slope, that LaVigne tried to yell a warning to Peer about the steep transition but was unsuccessful, that Peer hit the transition and fell, and that Aspen Skiing was negligent in permitting an extremely dangerous condition to exist on the slope and in failing to warn skiers of its presence. Aspen Skiing, in its opening statement, told the jury that it would establish that the cause of the accident was the high rate of speed at which Peer was skiing "for this first run of the trail on the first day of the season."
The evidence at trial established that on the day of the accident there were numerous ski trails on Aspen Mountain, each with *170 a different name and some of them intersecting one or more other trails at various points from the top of the mountain to the bottom. There were several chairlifts which carried skiers to various locations on the mountain. One of the chairlifts was located at the bottom of Ruthie's Run and carried skiers directly over Ruthie's Run. A skier could also reach Ruthie's Run by skiing trails commencing at the end of other chairlifts. There were numerous ski trails that angled off of the main trail serviced by the chairlift located at the bottom of Ruthie's Run.
Ruthie's Run was about 300 feet wide at the area where the service road traversed the run. There was a sudden and severe drop at varying degrees at different points along the intersection of the slope and the service road. The transition encountered by Peer consisted of a drop of four or five feet at an angle of approximately 90 degrees.
LaVigne testified at trial and stated that he had not previously skied Ruthie's Run with Peer on the day of the accident, but that he had skied the run by himself two or three times. According to LaVigne's trial testimony, at the time of the accident he and Peer were skiing Ruthie's Run when suddenly LaVigne realized that they were coming to the transition and that Peer had not yet skied that area. LaVigne testified that he spun his own skis sideways to slow down and yelled at Peer to get his attention because he was skiing toward the transition. Peer, however, did not hear La-Vigne's warning and hit the transition. According to LaVigne, Peer was skiing at about 35 to 40 miles per hour and "was in absolutely perfect control, in a very neutral, relaxed stance, just skiing down the mountain."
Aspen Skiing did not attempt to impeach LaVigne on the basis of his statement of December 2, 1982, in which he told the investigator that Peer had previously skied Ruthie's Run two or three times on the day of the accident. Instead, Aspen Skiing extensively cross-examined LaVigne in an effort to establish that Peer was skiing much too fast at the time of the accident. Aspen Skiing, for example, questioned LaVigne about a statement he made to a patrolman immediately after the accident, when he was at the hospital with Peer, in which he stated that Peer was skiing "very fast." LaVigne acknowledged that he had been given the opportunity to review this statement a few days later, after it was typed, and upon reviewing it he crossed out the words "very fast." He did so because he was "very emotional" at the time he made the statement and had no recall of anything that he might have said to the patrolman. LaVigne testified that "if I changed something on the statement it's because that's what I thought was accurate." Aspen Skiing also cross-examined LaVigne about that part of his December 2, 1982, statement to the investigator in which La-Vigne stated that the sun had just gone behind a cloud at the time of the accident, resulting in very flat light on the slope, that Peer was wearing "dark-colored goggles" and that "I'd have to guess that he just didn't see [the transition]." LaVigne on cross-examination admitted making the statement to the investigator and acknowledged that it was correct.
Peer testified at trial that the accident occurred on his first ski run down Ruthie's run on that day. He acknowledged that he had skied Ruthie's Run on several occasions during years prior to the accident, and that he was aware of a slight transition in the area but not to the same extent as the transition that existed on the day of the accident. On direct examination, he testified as follows:
Q: Okay, on the day that this accident occurred, had you skied elsewhere on Aspen Mountain before you skied Ruthie's Run?
A: Yeah. I'm not really good at remembering the names of trails, but I know I went up the mountain and I skied I think Sunset, I'm not sure; and then up the upper part of the mountain. I couldn't tell you exactly what I skied orif I had a map I could probably point to the general areas. We could do that *171 later if you like. And then I sat for lunch with my friend.
* * * * * *
Q: Did you ski any other slopes with Dick LaVigne before getting to Ruthie's Run?
A: Yeah, we would have had to. We skiedagain, I don't know any names [of trails] sothe front of the mountain there.
Q: Was this your first time down Ruthie's Run, when the accident happened?
A: Yeah, it was.
Q: And that is the first time down on the day of the accident?
A: Yeahwait. Yeah, I think that is. Sorry, I hope I'm not confusing. Go ahead.
Q: I'll get back to this later. On prior times out to Colorado, had you skied Ruthie's Run?
A: Yes, I had.
Peer also acknowledged that, although he was "skiing in control" and "was comfortable" skiing Ruthie's Run at the time of the accident, the accident probably would not have occurred if he had been skiing significantly slower. On cross-examination, he testified as follows:
Q: Now, this accident occurred on your first run on Ruthie's Run on opening day?
A: Yes, it was.
Q: You hadn't skied Ruthie's [Run] earlier that day?
A: No, I hadn't.
Aspen Skiing, in its case, presented the deposition testimony of two witnesses, John and Jacqueline Wogan, who were riding a chairlift over Ruthie's Run when the accident occurred. John Wogan stated that he observed two skiers skiing down Ruthie's Run at a speed considerably faster than other skiers. He saw the lead skier, who was Peer, make a sweeping turn. This skier, according to Wogan, then "hit the road ... and exploded out of his ski togs, lost his hat, skis and poles, did a half somersault and landed on the back of his neck." Shortly before the accident, Wogan heard the other skier, who was LaVigne, warn Peer to "watch out for the road or words to that effect." Jacqueline Wogan, who gave a similar account of the accident, stated that she particularly noticed the extremely high rate of speed at which Peer was skiing down Ruthie's Run.
During summation, Peer argued to the jury that Aspen Skiing was negligent in creating and maintaining a sudden and sharp transition or depression on Ruthie's Run without providing any advance notice or warning to skiers. Aspen Skiing, in contrast, argued that the sole cause of the accident was Peer's negligence in skiing much too fast, especially in light of the fact that it was his first run down Ruthie's Run on the day of the accident. At the conclusion of a three-week trial, the jury returned a verdict finding Aspen Skiing one-hundred percent negligent in causing Peer's injuries and assessed Peer's damages at $5,000,000.00.
Less than a month after the trial Aspen Skiing moved for a new trial pursuant to C.R.C.P. 59(d)(4) and C.R.C.P. 60 on the basis of newly discovered evidence which, according to Aspen Skiing, established that Peer had apparently lied when he testified that the accident occurred on his first run down Ruthie's Run. In support of its motion, Aspen Skiing filed the affidavits of two Aspen residents and one frequent Aspen visitor who claimed that they saw Peer skiing on Ruthie's Run prior to the accident. One of the affiants stated that he knew Peer on the day of the accident and that he had seen him skiing Ruthie's Run at least two times in the early afternoon prior to the accident. The second affiant stated that he had observed Peer "skiing Ruthie's Run at least two times" on the day of the accident. The third affiant stated that he observed a man "skiing Ruthie's Run at high speed who appeared to be skiing with another man, also skiing at high speed," that he "took note of these individuals because they were skiing so much faster than the conditions warranted," and that he later observed a man who he believed was one of these individuals lying "motionless on the snow on the upper section of Ruthie's Run." The three affiants *172 concluded their affidavits by stating that they learned about the result of Peer's lawsuit through newspaper accounts of the litigation.
In opposing the motion for a new trial, Peer argued that Aspen Skiing should have discovered this additional evidence prior to trial and that it should be bound by its tactical decision to defend the case on the basis that Peer was negligent in skiing at such a high rate of speed on his first run down Ruthie's Run. The trial court adopted these arguments in denying the motion for a new trial. It then assessed interest and costs on the jury verdict of $5,000,000.00 and entered judgment for $7,596,935.75.
Aspen Skiing appealed to the court of appeals, which affirmed the judgment in an unpublished opinion. The court of appeals did not specifically address whether Aspen Skiing had established that Peer committed perjury during the trial, but instead concluded that Aspen Skiing had failed to establish reasonable diligence in obtaining the additional evidence. We granted Aspen Skiing's petition for certiorari to consider whether the court of appeals erred in affirming the trial court's denial of the motion for a new trial.
Aspen Skiing basically claims that its motion for a new trial, along with the supporting affidavits, satisfied all the requirements for a new trial based on Peer's perjurious testimony during the first trial. We will first consider whether Aspen Skiing satisfied the three-part test for a new trial predicated on newly discovered evidence and then we will consider whether Aspen Skiing's evidence demonstrated that Peer committed perjury in testifying during the trial.
II.
C.R.C.P. 59(d)(4) states that a new trial may be granted on the ground of "[n]ewly discovered evidence, material for the party making the application which that party could not, with reasonable diligence, have discovered and produced at the trial." Our case law, consistent with the text of this rule, has adopted a three-part test for resolving a motion for a new trial based on newly discovered evidence: first, the applicant must establish that the evidence could not have been discovered by the exercise of reasonable diligence and produced at the first trial; second, it must be shown that the evidence was material to an issue in the first trial; and third, the applicant must establish that the evidence, if admitted, would probably change the result of the first trial. E.g., People v. Distel, 759 P.2d 654, 660 (Colo.1988); People in the Interest of P.N., 663 P.2d 253, 256 (Colo.1983); Kennedy v. Bailey, 169 Colo. 43, 47, 453 P.2d 808, 810 (1969). These three factors are not discrete items that lend themselves to a mechanistic application, but rather are closely interrelated and require the exercise of a prudential judgment informed primarily by considerations of fundamental fairness to the litigants. Considerable discretion is vested in the trial court in ruling on a motion for a new trial, and its ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. E.g., People in the Interest of P.N., 663 P.2d at 256; Bushner v. Bushner, 141 Colo. 283, 286-87, 348 P.2d 153, 154 (1959); Schlessman v. Brainard, 104 Colo. 514, 520, 92 P.2d 749, 752 (1939); Morgan v. Gore, 96 Colo. 508, 512-13, 44 P.2d 918, 920 (1935). To say that a court has discretion in resolving a motion for a new trial based on newly discovered evidence simply means that it has the power to choose between two courses of action "and is therefore not bound in all cases to select one over the other." People v. Milton, 732 P.2d 1199, 1207 (Colo.1987); Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1115 (Colo.1986).
The requirement of reasonable diligence is grounded in the principle of finality. A party is expected to gather all available evidence prior to trial and evaluate and submit such evidence as is consistent with the party's theory of litigation. See People In the Interest of P.N., 663 P.2d at 256-258. Reasonable diligence is established when the proponent of the motion demonstrates that the new evidence was not only unknown prior to the first *173 trial but also could not have been timely discovered through reasonable efforts. Buchanan v. Burgess, 99 Colo. 307, 310-311, 62 P.2d 465, 466-467 (1936). The record in this case establishes that the "reasonable diligence" requirement was not met.
Aspen Skiing had actual notice prior to trial of the inconsistency between Peer's pretrial deposition testimony that the accident occurred on his first run down Ruthie's Run and LaVigne's pretrial statement of December 2, 1982, that Peer had skied the run two or three times prior to the accident. Approximately two years prior to trial, Aspen Skiing deposed both LaVigne and Peer and confronted them with LaVigne's statement. LaVigne testified at his deposition that his prior statement was inaccurate and that he did not think Peer had previously skied Ruthie's Run on the day of the accident. Peer stated during his deposition testimony that LaVigne was apparently confused in his statement to the investigator about the sequence of events preceding the accident. During the two-year interval between LaVigne's and Peer's depositions and the trial, Aspen Skiing had substantial resources at its disposal to locate witnesses who might possibly have been able to confirm whether or not Peer had previously skied Ruthie's Run on the day of the accident. The fact that within a month following the trial Aspen Skiing was able to offer the affidavits of two local residents and a frequent Aspen visitor in support of its new trial motion plainly refutes any claim that reasonable diligence would not likely have led to the discovery of such evidence prior to trial. People v. Distel, 759 P.2d at 660. Aspen Skiing made the tactical decision to construct a defense not based on the theory that Peer had previously skied Ruthie's Run on the day of the accident but rather based on the theory that Peer, an expert skier, had negligently caused his injuries by skiing much too fast on his first run down Ruthie's Run. Under these circumstances, we cannot say that either the trial court or the court of appeals erred in concluding that Aspen Skiing failed to exercise reasonable diligence in discovering the new evidence.
Although the failure of Aspen Skiing to satisfy the "reasonable diligence" requirement renders it unnecessary to consider the other two requirements of the three-part test, we address them briefly here. These two requirements involve the element of materiality and the likelihood of the new evidence changing the result of the first trial. If the requirement of reasonable diligence had been satisfied in this case, the testimony of witnesses establishing that Peer previously had skied Ruthie's Run on the day of the accident could be viewed as directly supportive of a theory of contributory negligence predicated on the fact that Peer at the time of the accident was not confronted with a sudden and unknown danger but rather had previously skied that area and hence was under a legal duty to negotiate the slope within the limits of his ability. See § 33-44-109(1), 14 C.R.S. (Supp.1990). Aspen Skiing, however, knew of this theory of defense by virtue of the statement made by LaVigne to the investigator approximately one week after the accident, but nonetheless chose to defend the case on what Aspen Skiing believed was a more persuasive theory of contributory negligencenamely, that Peer had been skiing much too fast for his first run on the slope where the accident occurred. Aspen Skiing's decision to forego, as a matter of trial strategy, a theory of defense based on evidence showing that Peer had previously skied Ruthie's Run on the day of the accident vitiated its claim that the other two requirements of the three-part test were satisfied. See In the Interest of P.N., 663 P.2d at 256-58.
III.
We turn to Aspen Skiing's claim that the jury verdict was obtained as a result of Peer's perjured testimony. C.R. C.P. 60(b)(2) states that a court may relieve a party from a final judgment because of "fraud," "misrepresentation," or "other misconduct." This rule is a recognition of the fact that while "it is important to have an end to litigation, ... it is even more important that the end should be right." Bushner, 141 Colo. at 285, 348 P.2d at 154 *174 (quoting Townley v. A.C. Miller Co., 139 Ohio St. 153, 164, 38 N.E.2d 578, 583 (1941)). A litigant's use of perjured testimony to secure a jury verdict so corrupts the integrity of the factfinding process that a court may dispense with the requirement of reasonable diligence and set aside the verdict when the newly discovered evidence, even though in the nature of impeachment evidence, establishes that perjured testimony impaired a party's ability to fairly and fully litigate a material issue in the case. TAS International Travel Service, Inc. v. Pan American World Airways, Inc., 96 F.R.D. 205, 207-208 (S.D.N. Y.1982); see generally Denver City Tramway Co. v. Brier, 60 Colo. 235, 239-40, 152 P. 901, 902-903 (1915).
We must be mindful that there is a critical difference between perjury and the mere presence of factual conflicts or deficiencies in the evidence. A trial involves an effort to reconstruct the historical facts of a legally significant incident on the basis of testimonial and other evidence from persons claiming to have some knowledge of the incident. More often than not, any hotly contested trial of any duration involving testimony from several witnesses will generate inconsistencies, contradictions, lapses of memory, and oftentimes unexplained voids in the evidence. These conflicts or deficiencies, however, are not necessarily indicative of perjury.
Perjury is committed when a witness testifies under oath to a materially false statement in an official proceeding, such as a trial, under circumstances where the witness does not believe the statement to be true. § 18-8-502(1), 8B C.R.S. (1986); see People v. District Court, 192 Colo. 480, 482, 560 P.2d 463, 464 (1977); Marrs v. People, 135 Colo. 458, 463, 312 P.2d 505, 508 (1957). The proponent of a motion for a new trial based on newly discovered evidence of perjured testimony at the first trial must show that the discrepancies or inaccuracies in the prior testimony were not the result of the usual shortcomings inherent in human perception and memory but rather were the result of a willful fabrication of evidence bearing on a material issue. E.g., Schlessman v. Brainard, 104 Colo. at 519-20, 92 P.2d at 752; Buchanan v. Burgess, 99 Colo. at 310, 62 P.2d at 466.
Aspen Skiing bases its claim of perjury on the affidavits of two Aspen residents and a frequent visitor to the area, all of whom claimed that they saw Peer skiing down Ruthie's Run earlier on the day of the accident. These affidavits, however, do not establish that Peer perjured himself at his deposition or at trial when he stated that the accident occurred on his first run down Ruthie's Run. LaVigne made clear in his pretrial deposition that he believed, but was not absolutely certain, that he was in error in telling the investigator on December 2, 1982, that Peer had previously skied Ruthie's Run on the day of the accident. When Aspen Skiing deposed Peer and confronted him with LaVigne's statement that he (Peer) had skied Ruthie's Run two or three times earlier on the day of the accident, Peer stated that he also thought LaVigne's prior statement to the investigator was inaccurate.
Moreover, there was considerable evidence corroborating Peer's version of the accident. LaVigne, for example, testified that he and Peer were skiing Ruthie's Run when suddenly LaVigne realized that they were coming upon the transition and that Peer had not skied that area previously. LaVigne went on to describe how at that point in time he spun his own skis sideways to slow down and shouted at Peer to warn him of the transition. Peer, according to LaVigne, did not hear the warning and hit the transition. LaVigne's testimony about his shouting a warning to Peer was corroborated by the deposition testimony of one of the defendant's witnesses, John Wogan. It seems unlikely that LaVigne, who had skied Ruthie's Run earlier, would shout a warning to Peer if LaVigne had believed that Peer also had skied that area of the transition earlier on the same day.
Furthermore, the record shows that on the day of the accident there were many ski trails on Aspen Mountain in addition to Ruthie's Run, that Peer and LaVigne had skied several of those trails earlier on that *175 day, and that Peer generally did not remember the names of the trails on which he had skied. Peer could have skied from some other ski trail higher on the mountain to the trail under the Ruthie's Run chairlift, skied that trail for a very brief distance, and then switched over to another trail without ever realizing that he had skied on Ruthie's Run. The record also shows that Ruthie's Run is approximately 300 feet wide at the point where the service road traverses the ski run, and on the day of the accident the degree of transition varied greatly at various points along the intersection of the road and the run. If earlier on the day of the accident Peer had skied over the service road traversing Ruthie's Run but had skied at a point considerably distant from the site of the accident, his unfamiliarity with the names of the various ski trails could easily account for his unawareness of what particular trail he was on at that time, especially since he would have had no reason to identify the trail by name.
The number of intersecting trails on Aspen Mountain, each with a different name, and the varied combination of trails that a skier could follow from the top of a particular chairlift to the bottom, can adequately account for any discrepancy between Peer's deposition and trial testimony that he had not previously skied Ruthie's Run on the day of the accident and the post-trial affidavits of those persons who claimed that they had seen Peer skiing on Ruthie's Run earlier on the day of the accident. If Aspen Skiing had presented evidence that Peer had admitted to some other person that he had fabricated his version of the accident or had persuaded or had attempted to persuade LaVigne or other witnesses to do so, we would have no hesitation in reversing the judgment of the court of appeals. What we have here, however, is a case of varied observations and recollections, some inconsistency and contradiction, and an understandable degree of uncertainty and inaccuracy in reconstructing an event that occurred five years prior to the trial on a mountain with a complex configuration of ski trails. Rather than imputing perjured testimony to Peer, we believe the normal fallacies of human observation and memory can reasonably explain the divergent recollections of various witnesses concerning the events surrounding the accident in question.
We find this court's observations in Whiting v. Williams, 95 Colo. 252, 35 P.2d 493 (1934), particularly appropriate to the controversy before us. In affirming the trial court's denial of a motion for new trial based on allegedly perjured testimony, this court stated that "the evidence presented by the record may well be interpreted without imputing dishonest motives to anyone; it does not indicate more than the usual amount of inaccuracy, nor was any of the errors necessarily intentional or corrupt." 95 Colo. at 254, 35 P.2d at 494. Although in the instant case the trial court, in ruling on the motion for a new trial, did not specifically refer to Aspen Skiing's claim of perjury, it obviously was aware that such claim was central to Aspen Skiing's request for a new trial. The trial court, as the trial court in Whiting, "observed all the witnesses on the witness stand" and "approved of the verdict and refused to set it aside." 95 Colo. at 254-55, 35 P.2d at 494. Under the state of the record, we decline to second-guess the trial court's exercise of discretion in denying the motion for a new trial.
The judgment of the court of appeals is accordingly affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352693/ | 804 P.2d 250 (1990)
HLJ MANAGEMENT GROUP, INC., and Colorado Compensation Insurance Authority, Petitioners,
v.
Won Il KIM, the Industrial Claim Appeals Office of the State of Colorado and Director of the Division of Labor, Respondents.
No. 89CA1893.
Colorado Court of Appeals, Div. I.
July 26, 1990.
Rehearing Denied August 23, 1990.
Certiorari Denied February 4, 1991.
*251 John Berry, Denver, for petitioners.
Steven U. Mullens, P.C., Steven U. Mullens, Colorado Springs, for respondent Won Il Kim.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Tony Arguello, Asst. Atty. Gen., Denver, for respondents Industrial Claim Appeals Office and Director of the Div. of Labor.
Opinion by Judge HUME.
Petitioners, HLJ Management Group, Inc. (employer) and the Colorado Compensation Insurance Authority, seek review of the final order of the Industrial Claim Appeals Office (Panel) awarding Won Il Kim (claimant) temporary total disability benefits based upon the average weekly wage as set forth in petitioners' admission of liability. We set the order aside and remand to the Panel with directions.
Claimant was injured in a compensable industrial accident on September 1, 1987. Petitioners timely filed an admission of liability pursuant to § 8-53-102, C.R.S. (1986 Repl.Vol. 3B) in which claimant's average weekly wage was represented to be $191.07 and his temporary disability entitlement was computed at $127.38 per week. Subsequently, claimant filed an application for hearing to determine, among other things, the amount of his average weekly wage. Petitioners responded, joining in claimant's request for a determination of his average weekly wage and the resulting disability entitlement.
At the hearing conducted on October 20, 1988, pursuant to claimant's request, the Administrative Law Judge (ALJ), relying on evidence submitted by claimant as derived from the employer's payroll records, determined claimant's average weekly wage to be $175.25 rather than $191.17 as previously admitted by petitioners. Based upon that evidentiary finding, the ALJ awarded temporary disability compensation benefits in favor of claimant at the rate of $116.83 per week for the period of prehearing disability. Benefits were ordered to continue at that weekly rate pending further order.
*252 Petitioners sought review of the ALJ's order by the Panel, asserting that the ALJ had erred by including contributions to employee pension funds, vacation benefit allowances, and uniform maintenance allowances in computing claimant's average weekly wage.
On review, the Panel concluded that the ALJ had erred in recomputing claimant's average weekly wage based upon evidence presented at the hearing. Relying upon our decisions in Williams v. Industrial Commission, 723 P.2d 749 (Colo.App.1986) and Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App.1981), the Panel determined that petitioners' admission of liability was conclusively determinative of the amount of claimant's average weekly wage. Thus, the Panel modified the ALJ's order so as to reinstate claimant's entitlement to benefits in accordance with petitioners' admission of liability and declined to address petitioners' contentions on review.
Petitioners contend that the Panel erred in concluding that they were bound by their admission of liability and in rejecting the ALJ's findings based upon evidence presented at the October 20 hearing. We agree in part with petitioners' contentions.
Section 8-53-102(1), C.R.S. (1986 Repl. Vol. 3B) requires the employer of a person who suffers a disabling industrial injury to give notice of the injury to his insurance carrier and to the division of labor, together with the employer's or insurance carrier's admission or denial of liability.
Section 8-53-102(2), C.R.S. (1989 Cum.Supp.), effective July 1, 1988, provides, in pertinent part:
"If the employer or ... his insurance carrier admits liability for final payment of compensation to be paid ... payment thereon shall be made forthwith. An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workmen's compensation insurance carrier in the case, that the claimant may contest this admission if he feels he is entitled to more compensation ... and notice that if he does not contest the final admission in writing within sixty days of the date of final admission the case will be automatically closed as to the issues admitted in the final admission.... Hearings may be set to determine any matter, but, if any liability is admitted, payments shall continue according to admitted liability."
Section 8-53-102 is part of a statutory scheme designed to promote, encourage, and ensure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination of the employer's duty to provide benefits in cases that do not present a legitimate controversy. The statute's purpose is to provide a mechanism for the employer's early payment of appropriate benefits to injured employees and to insure the employer's voluntary cooperation by imposition of penalties for non-compliance and allowance of interest for nonpayment. See §§ 8-52-109, 8-53-102, and 8-53-116, C.R.S. (1986 Repl.Vol. 3B). See also Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo.1984).
In Vargo v. Industrial Commission, supra, we held that § 8-53-102 generally requires an employer to continue payment pursuant to admission of liability until ordered to stop by the division of employment, and that that requirement cannot be unilaterally abrogated by the employer. However, we also held that the portion of the statute that provides for hearings to determine any matter permits the employer to obtain relief from improvident or erroneous admissions. Indeed, in Vargo, the employer's admission was found to have been fraudulently induced by the employee's false representations, and, under those peculiar circumstances, we held that the admission was void ab initio.
In Williams v. Industrial Commission, supra, we held that, since an employer had admitted liability for medical benefits and had entered a stipulation with the employee that only issues of disability were to be determined at the scheduled administrative hearing, it was error for the commission to enter an order limiting the employer's liability for medical benefits.
*253 Here, unlike the circumstances in Williams, supra, the claimant placed in issue the subject of his average weekly wage, and he requested that that issue be determined upon evidence adduced at the hearing. However, when the evidence that claimant introduced convinced the ALJ that the employer's admission of disability liability was erroneously high, claimant sought to enforce liability under the very admission he had elected to contest.
While we recognize that the provisions of the Workers' Compensation Act should be interpreted to favor the beneficent purpose of providing speedy and just compensation to injured workers, the Act should not be interpreted to preclude fair consideration of an employer's right to just and equitable treatment.
Accordingly, we hold that if an admission of liability is contested by either party, the determination of the matter thus placed in issue is subject to determination by the ALJ at the adversary hearing. The admission is binding only until the controverted issue is determined after the hearing.
However, applying the Vargo analysis to the facts of this case, we conclude that the ALJ's order was incorrect insofar as it retroactively modified the employer's liability pursuant to the erroneous admission. Here, unlike the circumstances in Vargo, supra, the erroneous admission was not shown to have been induced by claimant's fraudulent representations. Rather, the employer's mistake resulted from its own erroneous calculation of claimant's average weekly wage. Under the circumstances, the employer's admission cannot be deemed void ab initio.
Hence, we conclude that the Panel erred in modifying the ALJ's order as to disability payments payable after its entry, but that the Panel correctly determined that the employer was bound by its admission of liability as to payments required prior to entry of the ALJ's order.
We further conclude that the Panel also must consider the merits of petitioners' contentions that the ALJ erred in including various fringe benefits in determining claimant's average weekly wage. Since those contentions may affect the employer's liability for compensation accruing after the effective date of the ALJ's order, they cannot be considered moot.
The order of the Panel is set aside, and the cause is remanded for reconsideration and further modification in accord with the views expressed in this opinion.
PIERCE and MARQUEZ, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352692/ | 167 Ariz. 133 (1991)
804 P.2d 1321
SOUTHERN LEASING CORPORATION, a Delaware corporation, Plaintiff/Appellee,
v.
William C. TUFTS, a single man, Defendant/Appellant.
No. 2 CA-CV 90-0167.
Court of Appeals of Arizona, Division 2, Department B.
January 22, 1991.
*134 Gerard Anderson, Tucson, for plaintiff/appellee.
Mohr, Hackett, Pederson, Blakley, Randolph & Haga, P.C. by Thomas K. Chenal and Daniel P. Beeks, Phoenix, for defendant/appellant.
OPINION
HOWARD, Judge.
This is an appeal from the denial of a motion to reconsider and set aside a default judgment.[1]
Appellee Southern Leasing Corporation (Southern Leasing), filed a breach of contract action against appellant in the Pima County Superior Court. The affidavit of service of process stated that process was served upon appellant Tufts by serving his roommate, Jerry Brown, at Tufts's usual place of abode.
Tufts failed to answer the complaint and a default judgment was entered against him in the sum of $163,337 plus interest, costs and attorney's fees in the sum of $3,000. On November 22, 1989, more than 30 days after the alleged service of process, Tufts filed a notice of removal of the state case to the United States District Court for the District of Arizona. On December 6, 1989, Tufts filed a motion to dismiss or alternatively, a motion to vacate the default judgment in the federal court, alleging that he had not been properly served with process. On December 22, 1989, Southern Leasing filed its opposition to the motion and its own motion to remand.
After a hearing on the motions, the federal district court judge remanded the case back to the state court on the ground that Tufts had not removed the case within 30 days of receiving process as is required by 28 U.S.C. § 1446(b). In coming to this conclusion, the district court judge found that Tufts had been properly served with process.
After remand, Tufts filed a motion asking the state court to reconsider the findings and conclusions made by the district court judge and to set aside the default judgment. Southern Leasing opposed the motion, contending that the state court had no authority to review the findings made by a federal district court judge because of res judicata or issue preclusion.
The determinative issue in this case is whether issue preclusion prevents the state trial court from making its own findings on the issue of the service of process. We conclude that there is no issue preclusion in this case and set aside the order entered by the trial court on May 3, 1990.
The Restatement (Second) of Judgments § 28 (1982), which we follow in the absence *135 of a different rule laid down by prior decisions of the state supreme court, Waddell v. White, 56 Ariz. 525, 109 P.2d 843 (1941), states:
§ 28. Exceptions to the General Rule of Issue Preclusion
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action; ...
The federal district court's remand order, based on its finding that Tufts was properly served and that the petition for removal was therefore not timely filed, cannot be reviewed by a federal court of appeals, either by direct appeal or by mandamus. See Schmitt v. Insurance Co. of North America, 845 F.2d 1546 (9th Cir.1988); and see 28 U.S.C.A. §§ 1447(c), (d). Since Tufts could not have the federal district court's remand order reviewed in the federal system, there is no issue preclusion and he is free to litigate the issue in state court. Furthermore, the district court, having remanded for lack of federal jurisdiction, lacked jurisdiction for any substantive ruling and no rulings of the federal court have any preclusive effect on the substantive matters before the state court. Whitman v. Raley's, Inc., 886 F.2d 1177 (9th Cir.1989).
Appellant has requested attorney's fees which will be awarded upon compliance with Rule 21(c), Ariz.R.Civ.App.Proc., 17B A.R.S.
The order of May 3, 1990, is vacated and set aside and the case is remanded for further proceedings consistent with this opinion.
FERNANDEZ, C.J., and ROLL, P.J., concur.
NOTES
[1] Appellant also has appealed from a remand order entered in the federal district court. Of course, we have no jurisdiction to review this order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352678/ | 52 Cal. 3d 1085 (1991)
804 P.2d 711
278 Cal. Rptr. 86
JOSEPH L. DROCIAK, Petitioner,
v.
THE STATE BAR OF CALIFORNIA, Respondent.
Docket No. S014385.
Supreme Court of California.
February 21, 1991.
*1086 COUNSEL
David A. Clare for Petitioner.
Diane C. Yu and Starr Babcock for Respondent.
*1087 OPINION
THE COURT.
The Review Department of the State Bar Court recommends petitioner Joseph L. Drociak be suspended from the practice of law for one year, stayed, and that he be placed on probation for two years under certain conditions, including thirty days' actual suspension. Petitioner concedes he violated Business and Professions Code, section 6106 (commission of an act involving moral turpitude), section 6068, subdivision (d) (failing to employ "such means only as are consistent with truth"), and Rules of Professional Conduct, former rule 7-105(1) (same) (presently rule 5-200(B) under new Rules of Professional Conduct that became effective May 27, 1989) (all future section and rule references are to these respective sources unless otherwise indicated). The sole issue in the present proceeding is whether the recommended discipline is excessive. We adopt the recommendation of the review department.
I. Facts and procedure
The hearing panel found the following facts: Petitioner was admitted to practice law in 1964 and has no record of discipline. He has a solo practice of criminal and personal injury cases and employs support staff of six secretaries, paralegals and investigators.
In March 1985, petitioner was retained by Jane House to represent her in a personal injury action against Greyhound Bus Lines, Inc. (Greyhound). As was his custom with many of his clients, petitioner had House sign a number of undated, blank verification forms. In March 1986, petitioner filed a complaint on House's behalf. When Greyhound sought discovery through interrogatories and a request for documents, petitioner wrote to House, requesting she visit his office to prepare answers to the discovery requests. Between May and August 1986, he wrote four such letters to House but received no reply. He told counsel for Greyhound, Temple Harvey, that he had "temporarily lost contact" with House.
After receiving a number of extensions for discovery and still failing to contact House, petitioner consulted House's file and answered the interrogatories himself, attaching one of House's presigned verifications. Later he served responses to the request for documents, again attaching one of House's presigned verifications.
Trial in House v. Greyhound was set for November 1986. When petitioner failed to appear, the matter was dismissed.
In late 1986 or early 1987 Curtis B. Oliver, House's husband, appeared at petitioner's office to discuss his wife's suit. When petitioner told him the suit *1088 had been dismissed because of his wife's failure to cooperate, Oliver informed petitioner that House had been dead since October 1985. The hearing panel found petitioner did not know of House's death until approximately the time of his conversation with Oliver. The hearing panel also found that opposing counsel Harvey became aware of the fact that House was dead in July 1986, but inexplicably declined to mention this to petitioner or the court.
The hearing panel concluded petitioner violated sections 6106 and 6068, subdivision (d), and former rule 7-105(1). Section 6106 provides, "The commission of any act involving moral turpitude, dishonesty or corruption ... constitutes a cause for disbarment or suspension." Section 6068, subdivision (d), requires an attorney "To employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." Former rule 7-105(1) tracks section 6068, subdivision (d), and likewise requires an attorney to "employ, for the purpose of maintaining the causes confided to him such means only as are consistent with truth...."
The panel found the following facts in aggravation: Petitioner's admission that he had other clients sign blank verifications demonstrated a "pattern of misconduct"; his acts disclosed dishonesty and concealment; his use of presigned verifications posed a threat to the administration of justice (in that unverified information in discovery responses might be inaccurate, and the opposing party might rely on that information in agreeing to an "undeserved" settlement); and petitioner "demonstrated no remorse for his actions."
The hearing panel found these facts in mitigation: In 25 years of practice, petitioner has no record of prior discipline; he believed his acts were in the best interests of his clients, many of whom move without leaving a forwarding address and are thus difficult to locate; there was no financial harm to House because, after her death, her estate was entitled to recover only her medical expenses, and those expenses had been paid by the county; and petitioner was cooperative with the State Bar, and was "candid and open in his acknowledgment of his wrongful acts." (The last finding appears inconsistent with the final finding in aggravation.)
The hearing panel recommended the above-described discipline. The review department adopted the panel's findings and recommendation on a nine-to-four vote (three of the dissenters felt the discipline excessive; the fourth believed it too lenient and would have imposed ninety days' actual suspension).
*1089 II. Challenge to various findings
As noted above, petitioner does not contest his violation of sections 6106 and 6068, subdivision (d), and former rule 7-105(1). As a predicate to his attack on the discipline imposed, however, he challenges a number of ancillary "findings" made by the hearing panel and adopted by the review department. He asserts these findings are unsupported by the record and are otherwise improper and that their presence in the record cast him in a "false light" and led the review department to affirm the hearing panel's "excessive" recommendation of 30 days' actual suspension.
We agree with petitioner that some of the hearing panel's "findings" are inappropriate and unsupported by the record, and we fail to understand why the review department adopted the findings in toto, without making appropriate modifications. For example, the hearing panel (a single referee who identified himself in the panel decision as "an insurance defense attorney") twice characterized petitioner's law practice as a "mill operation" and four times alluded to "findings" unsupported in the record, and certainly inflammatory that petitioner allowed members of his staff to "forge" clients' names to verifications. The State Bar concedes the latter references are unsupported by the record. The State Bar also concedes that at least one other "finding" is not supported by the record. In determining the appropriate discipline, we will consider only the facts as set out above in part I of this opinion.
III. Discipline
(1) It is well established that we exercise our independent judgment in determining whether the recommended discipline is appropriate, excessive, or inadequate. In exercising our authority we traditionally accord great weight to the review department's determination. (In re Prantil (1989) 48 Cal. 3d 227, 234 [255 Cal. Rptr. 890, 768 P.2d 109].)
Petitioner insists this deference is inappropriate here in light of the unsupported "findings" described above (pt. II, ante) that may have improperly "colored" the review department's recommendation in this case. Even granting less than usual deference, however, we still conclude the review department's recommendation is appropriate.
As noted above, petitioner does not contest his violation of sections 6106 and 6068, subdivision (d), and former rule 7-105(1). Also as noted above, as relevant here section 6068, subdivision (d), and former rule 7-105(1) are identical; accordingly, these violations are treated as one violation.
*1090 (2) The findings set out above are supported by the record and amply establish petitioner's misconduct. At the time of the events in this case Code of Civil Procedure section 2030, subdivision (a), provided, "interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them...." (See present Code Civ. Proc., § 2030, subd. (g) ["The party to whom the interrogatories are directed shall sign the response under oath...."]; see also former Code Civ. Proc., § 2030, subd. (b).) As explained in Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 779-783 [149 Cal. Rptr. 499], such verified responses enable opposing counsel to properly assess the merits of a claim or defense, and serve an important role in the efficient resolution of disputes. The use of a presigned verification in discovery proceedings, without first consulting with the client to assure that any assertions of fact are true, is a clear and serious violation of the statutes and rules.
(3a) The Standards for Attorney Sanctions for Professional Misconduct (Rules Proc. of State Bar, div. V; hereafter standards) make violation of section 6106 punishable by disbarment or actual suspension. (Std. 2.3.) The same provision applies to a violation of former rule 7-105(1). Likewise, standard 2.6(a) makes a violation of section 6068, subdivision (d), punishable by disbarment or suspension. We employ the standards as guidelines to determine the discipline necessary and appropriate to protect the public. (See In re Young (1989) 49 Cal. 3d 257, 268 [261 Cal. Rptr. 59, 776 P.2d 1021]; Baker v. State Bar (1989) 49 Cal. 3d 804, 822, fn. 7 [263 Cal. Rptr. 798, 781 P.2d 1344].)
Petitioner insists that various factors in mitigation his lengthy record without discipline, the asserted hardship on his office staff if he is compelled to cease practice even for a short period, his recent changes in office practices, the absence of harm to his client, and most important, his avowed intent to assist his client by his misconduct make a 30-day actual suspension inappropriate.
We disagree. (4) Discipline is imposed in order to protect the public by deterring future misconduct by attorneys. (Bach v. State Bar (1987) 43 Cal. 3d 848, 856-857 [239 Cal. Rptr. 302, 740 P.2d 414].) The impact of otherwise appropriate discipline on an attorney or the attorney's office staff is irrelevant to this purpose, and should not be considered by this court. (3b) Moreover, we have repeatedly rejected petitioner's assertion that his conduct is less culpable because he was motivated primarily by a desire to protect a client. (Codiga v. State Bar (1978) 20 Cal. 3d 788, 793 [144 Cal. Rptr. 404, 575 P.2d 1186] ["deceit by an attorney is reprehensible misconduct whether or not harm results and without regard to any motive *1091 or personal gain"].) Petitioner's prior "clean" record is commendable, but it does not render the recommended 30-day actual suspension inappropriate.
Petitioner concedes there is no case involving the "particular misconduct" at issue here, but cites a number of cases in which attorneys received either less discipline than that recommended here for assertedly similar misrepresentations, or the same discipline in the face of more egregious violations. (E.g., Schneider v. State Bar (1987) 43 Cal. 3d 784 [239 Cal. Rptr. 111, 739 P.2d 1279]; In re Chira (1986) 42 Cal. 3d 904 [231 Cal. Rptr. 560, 727 P.2d 753]; Chefsky v. State Bar (1984) 36 Cal. 3d 116 [202 Cal. Rptr. 349, 680 P.2d 82].) The State Bar also cites a number of assertedly similar cases, many with distinguishable aggravating facts, in which attorneys received the same (or greater) discipline recommended here. (E.g., Bach v. State Bar, supra, 43 Cal. 3d 848; Codiga v. State Bar, supra, 20 Cal. 3d 788; Lee v. State Bar (1970) 2 Cal. 3d 927 [88 Cal. Rptr. 361, 472 P.2d 449].) Exercising our independent judgment, on the facts of this case we are satisfied that the recommended discipline, including a 30-day actual suspension, is necessary and appropriate to protect the public and to deter future misconduct.
IV. Disposition
Petitioner is suspended from law practice for one year, which term will be stayed during two years of supervised probation. Conditions of this probationary period include: (i) 30 days' actual suspension and (ii) compliance with the terms set out in the review department's decision, including the requirements that he complete a course on law office management, and that he develop a law office management plan. In addition, petitioner shall take and pass the Professional Responsibility Examination within one year of the effective date of this order. This order is effective on finality of this decision in this court (see Cal. Rules of Court, rule 953(a)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352690/ | 804 P.2d 928 (1990)
119 Idaho 199
STATE of Idaho, Plaintiff-Respondent,
v.
Todd Allen BRUNO, Defendant-Appellant.
No. 18184.
Court of Appeals of Idaho.
December 4, 1990.
Petition for Review Denied February 20, 1991.
*929 Frederick G. Loats, Coeur d'Alene, for defendant-appellant.
Jim Jones, Atty. Gen., Michael J. Kane, Deputy Atty. Gen., for plaintiff-respondent. Michael Kane argued.
SWANSTROM, Judge.
Following a jury trial, Todd Bruno was convicted of delivery of cocaine. He appeals, contending that the district court erred: (1) in denying his motion to dismiss based on evidence lost by the state and (2) in the giving or withholding of jury instructions.
The essential facts are as follows. In August, 1988, the Coeur d'Alene Police Department, *930 in conjunction with the Bureau of Narcotics of the Idaho Department of Law Enforcement, conducted an undercover drug operation as a result of information Stephanie Mille gave to a police officer about the activities of certain acquaintances, including Staci Herting. An officer recruited Stephanie Mille to make a cocaine buy. For this purpose, it was planned that Mille would contact Staci Herting while wearing a hidden microphone and carrying "buy money" furnished by the police. Conversations with Mille were to be recorded on equipment operated by the police in their automobile, and the police would monitor the conversations as the tape was being made.
On August 25, 1988, Mille met with Herting to arrange a purchase of cocaine. Herting made a telephone call to Todd Bruno and was given directions as to where to meet him to complete the drug deal. Mille then drove Herting to a bar in Coeur d'Alene where Herting had said they would meet the person who would sell them cocaine. When a green automobile drove up and stopped, Herting got out of Mille's automobile and went to talk with the driver and with a passenger, Todd Bruno. Mille stayed in her automobile. According to Herting's trial testimony, it was at this time that she gave $400 to Bruno for a half ounce of cocaine. After the transaction occurred, Herting stayed in the automobile with the two men and motioned for Mille to follow them in her automobile. They then stopped at a Circle K store where Bruno left the automobile for a few minutes. Mille arrived and went to the green automobile where Herting and the driver were "visiting." As Bruno returned to the automobile, Herting rejoined Mille in her automobile, and they went on their way.
Herting was later charged with possession of cocaine. Bruno was charged with delivery of a controlled substance, cocaine, in violation of I.C. § 37-2732. A second count of possession of a controlled substance was subsequently dismissed.
In the course of the undercover operation, the police recorded a total of three tapes containing the conversations picked up by Mille's body mike. The police maintained custody of the tapes and locked them into an officer's desk drawer at the station for use at trial. At the trial, however, it was disclosed that one of the tapes was missing. Because the defense had not had the opportunity to hear the missing tape and did not know what was contained on it, Bruno moved for dismissal of the delivery charge on the grounds that his due process rights were violated. The district court denied the motion. The jury found Bruno guilty of the charge. Bruno appeals, contending that the trial court should have dismissed the charge. The other issues raised in Bruno's appeal focus on the instructions given to the jury. We will address each issue in turn.
I. LOST EVIDENCE
Bruno first contends that the district court committed error in denying his motion to dismiss when the state lost or destroyed one of the three tapes recorded from the body mike transmissions. Bruno submits that the loss of the evidence by the state constitutes a deprivation of his due process rights under the 5th and 14th Amendments to the United States Constitution and Article I, § 13 of the Idaho State Constitution and that this violation warrants dismissal.
The impact of the missing evidence on Bruno's case is the pivotal question which we must consider in reviewing the denial of the motion to dismiss. Quoting from our discussion in State v. Leatherwood, 104 Idaho 100, 656 P.2d 760 (Ct.App.1982), "[from] an appellate perspective, we cannot say that the unavailability of certain evidence `might have affected the outcome of the trial' in which a defendant was found guilty unless it would `[create] a reasonable doubt that did not otherwise exist.'" Id. at 104, 656 P.2d at 764. We also held therein that "evidence is `material' under this standard if, viewed in relation to all competent evidence admitted at trial, it appears to raise a reasonable doubt concerning the defendant's guilt." Id. at 105, 656 P.2d at 765. The standard of materiality as applied to the due process issue *931 raised is thus a question of law upon which we exercise free review.
Underlying due process is a fundamental interest in assuring that a defendant has a fair trial. To insure that a defendant is afforded a meaningful opportunity to present a complete defense, "the Court has developed `what might loosely be called the area of constitutionally guaranteed access to evidence.'" California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446, 73 L. Ed. 2d 1193 (1982). The duty of the state not only to disclose evidence in the possession of the prosecutor or the police, but also to preserve that evidence for use by the defendant in the preparation of his case, has been the subject of numerous decisions. From these cases a standard of fairness has evolved defining the right of a defendant to evidence in the hands of the prosecution.
The United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963), held that, when evidence favorable to an accused is not disclosed by the prosecution after a request by the accused, there is a violation of due process where the undisclosed evidence is material either to guilt or punishment. The due process provisions in the federal constitution and in Art. 1, § 13 of the Idaho Constitution, guarantee the right of a defendant in a criminal action to disclosure of exculpatory evidence by the prosecution. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982). Due process is also implicated when the state fails to preserve material evidence. See State v. Ward, 98 Idaho 571, 569 P.2d 916 (1977).
With respect to the destruction or loss of exculpatory evidence, we are guided by a balancing test to detect due process violations. Paradis v. State, 110 Idaho 534, 716 P.2d 1306 (1986). The three factors, derived from cases following Brady, that are to be considered in this analysis are:
(1) whether the evidence was material to the question of guilt or the degree of punishment;
(2) whether the defendant was prejudiced by the loss or destruction of the evidence; and
(3) whether the government was acting in good faith when it destroyed or lost the evidence.
Id. at 539, 716 P.2d at 1311.
In the present case, Bruno argues that we can only speculate as to the contents of the missing tape and its materiality. He also argues essentially that because the evidence is unknown, the court is unable to evaluate its materiality and must focus on whether the conduct of the police exhibited a disregard for the rights of the defendant. We cannot agree that the evidence contained in the lost tape was unknown and beyond evaluation.
When the nature of evidence lost or destroyed is unknown, and cannot be established indirectly by other testimony or evidence, then the materiality tests are not meaningful, and it would appear necessary to focus on the reasonableness of the state's conduct. State v. Trumble, 113 Idaho 835, 748 P.2d 826 (Ct.App.1987). The record in the case before us reveals that Mille and Herting testified as witnesses for the state about their conversations which were purportedly recorded on tape by the police. Additionally, the two officers who heard the conversation as it was being recorded testified and were available for cross-examination by the defense for the purpose of impeachment. From the trial transcript, it is apparent that defense counsel did not ask the officers what they heard, so no evidence contrary to the testimony of Mille and Herting was admitted. Clearly, the nature and materiality of the lost evidence was established through trial testimony, and we cannot agree that the evidence contained in the lost tape is unknown and beyond evaluation.
We can say that Bruno was not prejudiced by the loss of the tape in spite of the inadequate procedures followed by the police. As previously stated, evidence that has not been preserved by the prosecution, but which can be indirectly determined by other means, will be deemed material in a *932 constitutional sense "if, viewed in relation to all competent evidence admitted at trial, it appears to raise a reasonable doubt concerning the defendant's guilt." State v. Leatherwood, supra at 105, 656 P.2d at 765 (Ct.App.1982). The tape recordings of importance to Bruno, as in Leatherwood, were merely a secondary source, and the jury had the direct testimony adduced at trial on which to base their verdict of guilty. Bruno contends that it was Herting's testimony that convicted him and that the tape may have contained evidence sufficient to impeach Herting. We cannot say from the record before us, however, that Bruno's counsel showed any prejudice by the loss of the tape.
Finally, we consider whether the police acted in good faith when they lost the tape. The officer testified that he locked the three tapes into his desk drawer to which only he and his captain had a key. The tapes were released to the prosecutor by the officer and inexplicably one of the tapes was lost. The officer's handling of the evidence tapes comported with normal procedures at the department. Although those procedures seemed amateurish, there has been no showing of bad faith, or any disregard of the defendant's rights, on the part of the police.
Upon the record, we conclude that the district court did not abuse its discretion in denying Bruno's motion to dismiss.
II. INSTRUCTIONS
We now turn to Bruno's claims of error in the instructions given to the jury prior to their deliberations. Bruno contends that the district court erred with regard to the instructions, specifically, by (1) failing to properly instruct as to the materiality of the lost evidence; (2) by refusing to properly instruct as to the accomplice status of the state's witness, Staci Herting; (3) by refusing Bruno's proposed instruction advising the jury that Herting's testimony should be viewed with distrust and (4) by including an improper definition of "delivery" in the instruction on the elements of the charge. The question whether the jury was properly instructed is a question of law over which we exercise free review. Nettleton v. Thompson, 117 Idaho 308, 310, 787 P.2d 294, 296 (Ct.App.1990); see, e.g. State v. Lankford, 116 Idaho 860, 867, 781 P.2d 197, 204 (1989).
First, Bruno challenges the instruction given by the district court concerning lost evidence. The proposed instruction which was refused would have advised the jury that they could infer from the loss of evidence that it contained evidence adverse to the state. The instruction which was given regarding the lost evidence advised the jury that the fact that the state lost the evidence could be considered only as one factor, and did not dictate acquittal. The instruction that was given mirrored the instruction on lost evidence approved by the majority in State v. Fain, 116 Idaho 82, 96, 774 P.2d 252, 266 (1989), and is in all respects appropriate.
Second, Bruno insists that the court erred in failing to instruct the jury that Herting was an accomplice, whose testimony required corroboration under I.C. § 19-2117. The court also rejected one of Bruno's requested instructions which would have advised the jury that "the testimony of an accomplice ought to be viewed with distrust." While Herting did make contact with Bruno and did buy cocaine from him, her actions in purchasing the cocaine do not automatically make Herting an accomplice to Bruno's crime. There was no evidence that Herting and Bruno had a common plan, nor was there a factual dispute compelling the district court to submit the accomplice question to the jury. A "buyer may be convicted for directly committing the act constituting the offense; and he is not, in such a case, any more `a party to the offense of the seller' than he is where buying is not made illegal." State v. Murphy, 94 Idaho 849, 851, 499 P.2d 548, 551 (1972). Accordingly, we hold that the court did not err in refusing Bruno's requested instructions on accomplices.
Bruno requested one other instruction that dealt specifically with the testimony of Staci Herting. The instruction stated:
*933 You have heard testimony that Staci Herting, a witness, has received compensation from the state in connection with this case. You should examine Herting's testimony with greater caution than that of ordinary witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of compensation and benefits from the state.
The jury did hear testimony that Herting was testifying as a state witness in exchange for a favorable plea agreement in her case. Although the court did not give the above instruction requested by Bruno, the court gave a modified instruction as follows:
You have testimony and evidence that Darlene "Staci" Herting, a witness, has entered into a plea agreement as a defendant in another case. In evaluating her testimony, you should consider the extent to which it may have been influenced by the receipt of benefits from the State in that plea agreement.
We are not persuaded that the court erred in giving this instruction in preference to the one requested by Bruno. The court's instruction omitted the awkward phrase: "You should examine Herting's testimony with greater caution than that of ordinary witnesses." The court's instruction adequately heightened the jury's awareness of facts which might have influenced Herting's testimony. They were told they "should" consider these facts in evaluating Herting's testimony. We hold the instruction was proper.
The last claim of error raised by Bruno relates to the instruction reciting the elements of the crime with which he was charged. Specifically, Bruno argues that he was charged with delivery of cocaine but that the instruction erroneously advised the jury that they could convict Bruno if they found he had "attempted to deliver" cocaine. Bruno's contention is without merit. The instruction followed the statutory language. Idaho Code § 37-2701(f), as amended by 1983 Idaho Sess.Laws, ch. 218 § 2 at 599, defines "deliver" or "delivery" to mean "the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance, whether or not there is an agency relationship." Moreover, the state's evidence showed an actual or constructive delivery of cocaine from Bruno to Herting. We are given no reason to believe that the jury found that Bruno only "attempted to deliver" cocaine.
We affirm the judgment of conviction.
WALTERS, C.J., and WINMILL, J., Pro Tem., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352707/ | 59 S.W.3d 789 (2001)
The STATE of Texas, State,
v.
Timothy Paul DUKE, Appellee.
No. 2-99-167-CR.
Court of Appeals of Texas, Fort Worth.
October 11, 2001.
Bruce Isaacks, Criminal District Attorney; Kathleen Walsh, Paul Johnson, and Rick Daniel, Assistant District Attorneys, Denton, for Appellant.
Morris & Morris, L.L.P. and S. Rafe Foreman, Flower Mound, for Appellee.
EN BANC and H. TOD WEAVER, J. (Retired, Sitting by Assignment) and DAVID L. RICHARDS, J. (Sitting by Assignment).
DAVID L. RICHARDS, Justice.
OPINION ON REHEARING
We withdraw our opinion and judgment dated July 13, 2000, and substitute the following. The State appeals the trial court's order setting aside a felony indictment *790 against appellee Timothy Paul Duke. We will reverse the trial court's order.
The procedural history of the issue presented in this appeal is somewhat complex. Appellee was charged by indictment with the offense of driving while intoxicated (DWI). Two prior felony DWI convictions were alleged: Denton County case numbers F-91-118-E and F-95-410-E (the Denton cases). In addition, the indictment contained an enhancement paragraph alleging a prior final felony conviction in McLennan County (the McLennan case) for the offense of possession of a controlled substance. Appellee filed a motion to set aside the indictment on grounds that these three prior convictions were infirm because they had been improperly enhanced by two prior Dallas County DWI convictions: case numbers MB8541064-A and MB8529090-A (the Dallas cases). Appellee's position was that the convictions in the Dallas cases were nonfinal and should not have been used to enhance the subsequent Denton and McLennan cases. From that premise, appellee argued that the enhancement paragraphs in the instant case should be set aside as void because the Denton and McLennan cases relied on the void Dallas cases. Put another way, appellee contended, under a domino-like theory of "voidness," that proof that the Dallas cases were nonfinal rendered those cases unavailable for enhancement, making the subsequent Denton and McLennan cases that relied on them void, and, in turn, rendering the enhancement allegations in the instant indictment void and subject to collateral attack. The trial court granted appellee's motion to set aside the indictment. This appeal followed.
We begin by addressing appellee's argument that the State has no right to appeal the district court's order setting aside the felony charge because the State could still proceed on a misdemeanor charge. The critical factor in determining the State's right to appeal in this case is whether the trial court's order effectively dismissed a portion of the indictment. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp.2001). Prior convictions are essential elements of a felony DWI under penal code section 49.09(b), and must be pleaded and proven at the guilt-innocence phase to support a felony conviction. Tex. Penal Code Ann. § 49.09(b) (Vernon Supp. 2001). The prior convictions define the offense and are jurisdictional allegations under penal code section 49.09(b) and code of criminal procedure article 36.01(a)(1). Id.; Tex.Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon Supp.2001). Based on the foregoing, the trial court's order effectively dismissed the felony portion of the indictment and reduced the State's case to a misdemeanor prosecution under penal code section 49.04(b). Tex. Penal Code Ann. § 49.04(b) (Vernon Supp.2001). We therefore hold that the trial court's order dismissed a portion of the indictment and is appealable by the State pursuant to article 44.01(a)(1). Tex.Code Crim. Proc. Ann. art. 44.01(a)(1); see also State v. Mewbourn, 993 S.W.2d 771, 772 (Tex. App.Tyler 1999, no pet.) (rejecting defendant's contention under similar facts that the State had no right to appeal).
Next, we address the State's contention that the trial court erred in considering appellee's motion to dismiss where the motion was not timely filed. Article 1.14(b) requires a defendant to object to any defects of substance or form in the charging instrument prior to the date of trial. Tex.Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp.2001). The State urges on appeal that appellee's motion was not timely because it was heard on the date of trial. Appellee responds that because there never was a trial, the motion *791 and hearing were in compliance with the statute. We need not decide the merits of this issue because the State has failed to properly preserve it for appellate review. To preserve a complaint for review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling. Tex.R.App. P. 33.1(a)(1). If the party fails to do so, error is not preserved. Taylor v. State, 939 S.W.2d 148, 155 (Tex.Crim.App. 1996) (Johnson, J. dissenting). In addition, the complaining party must pursue the objection to an adverse ruling. See McFarland v. State, 989 S.W.2d 749, 754 (Tex.Crim.App.1999). While the State did voice a concern near the end of the hearing that article 1.14 required appellee to present his motion prior to the day of trial, there was no objection made on that ground, nor did the State pursue an objection to an adverse ruling. Any complaint about trial court error in holding the hearing on the date set for trial is therefore waived.
We now turn to the merits of the issue. The State contends the trial court erred in granting appellee's motion to set aside the indictment. As noted above, appellee successfully convinced the trial court that the Denton and McLennan cases alleged as enhancements in the indictment were void because they were based on earlier Dallas cases that were not final. For purposes of our analysis, we will assume appellee's characterization of the Dallas cases as "nonfinal" is correct.[1] The critical question we must address is whether the nonfinal Dallas cases rendered the subsequent Denton and McLennan cases void, such that the Denton and McLennan cases could not be used to enhance the DWI charge in the instant case. This precise issue presents a question of first impression.
Appellee forcefully argues that our previous decision in Mosqueda v. State is controlling. 936 S.W.2d 714 (Tex.App.-Fort Worth 1996, no pet.). Mosqueda involved a sufficiency challenge to a felony DWI conviction where the evidence established that one of the prior DWI convictions alleged by the State to have been a final conviction was, in fact, not a final conviction. Id. at 715-16. We held that the lack of finality in the prior conviction required us to rule the evidence was legally insufficient to prove the prior conviction was final. Id. at 717. For that reason, we reversed the judgment of the trial court.
The issue in the instant case is quite different. Unlike the defendant in Mosqueda, appellee is attacking convictions twice removed from the instant case.[2] That is, he attacks the prior Dallas cases *792 which were used to enhance the prior Denton and McLennan cases alleged by the State in the instant indictment. The infirm Dallas cases are not mentioned in this indictment. This distinction is critical because even assuming the Dallas cases are void, there is no reason to believe that the felony DWI convictions in the Denton cases could not be reformed to reflect misdemeanor DWI offenses,[3] and it is clear the possession conviction in the McLennan case would survive as reformed, since one of the prior Dallas cases was used only as a punishment enhancement in that case. The indictment in the instant case does not allege that the Denton cases were final felony convictions. It merely alleges that each was a final conviction. That is all that is required to enhance the instant charged offense to a felony DWI because it is immaterial under penal code section 49.09(b) whether the prior DWI offenses were felonies or misdemeanors. Tex. Penal Code Ann. § 49.09(b). Because there was no showing by appellee that the Denton cases could not be reformed to reflect misdemeanor convictions, and because there is no showing the McLennan drug possession case could not be reformed so as to delete the enhancement paragraph reflected in that judgment, we do not agree that the Denton and McLennan County judgments and convictions are void. We therefore hold that the trial court erred in setting aside the indictment.
Our decision in this regard squares with the United States Supreme Court's recent decision in Daniels v. United States, 532 U.S. 374, 121 S. Ct. 1578, 149 L. Ed. 2d 590 (2001). There the court formulated a corollary rule for federal cases involving nonhabeas collateral attacks on prior convictions. The petitioner in Daniels was convicted of the federal offense of felon in possession of a firearm enhanced under the Armed Career Criminal Act of 1984. Id. at ___, 121 S.Ct. at 1580. 18 U.S.C.A. § 924(e) imposes a mandatory minimum sentence on anyone who violates 18 U.S.C.A. § 922(g)(1) and has three previous convictions for, among other things, a violent felony. 18 U.S.C.A. §§ 922(g)(1), 924(3) (2000); Daniels, 532 U.S. at ___, 121 S.Ct. at 1580. The defendant there had four such prior state convictions. At sentencing, he asserted that his federal sentence violated the United States Constitution because it was based in part on two prior convictions that were themselves unconstitutional. Daniels, 532 U.S. at ___, 121 S.Ct. at 1580-81. Both prior convictions, he claimed, were based on inadequate guilty pleas, and one was the product of ineffective assistance of counsel. Id. The Supreme Court held that a defendant pursuing such a remedy presents a cognizable claim for relief only if the collateral attack involves an allegation that the defendant was deprived of counsel. Id. at ___, 121 S.Ct. at 1581 (citing Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994)). All other complaints, including claimed instances of ineffective assistance of counsel, are barred. Id. at ___, 121 S.Ct. at 1583.
The court cited several policy reasons for its decision: (1) permitting such collateral attacks would inevitably delay and impair the orderly administration of justice *793 and deprive the state-court judgment of its normal force and effect; (2) often decades-old state court records and transcripts are difficult to locate; and (3) there is a concern for finality given the wide range of disabilities on those who have been convicted of crimes, even after their release. Id. at ___, 121 S.Ct. at 1581-82. The court also noted that a defendant convicted in state court has numerous opportunities to challenge such alleged infirmities, including direct appeals and habeas challenges. Id. If the defendant chooses not to pursue those remedies he does so with the knowledge that the conviction will remain on his record. Id.
Although the issue presented in Daniels concerned federal law, we believe the Supreme Court's analysis is equally applicable to Texas law. If appellee had attacked the finality of the Dallas cases when those cases were alleged directly as enhancement allegations of a felony DWI offense, he may have been successful in quashing the felony indictments. See State v. Kindred, 773 S.W.2d 766, 768 (Tex.App.-Corpus Christi 1989, no pet.) (affirming trial court's order quashing indictment that alleged nonfinal convictions as enhancing elements of felony DWI offense). The indictment in this case does not allege the Dallas cases as enhancing elements of the charged offense, and it is undisputed that appellee did not object to any of the felony indictments that relied directly on the Dallas cases before trial on those felonies. Accordingly, appellee has waived the right to object here to the felony judgments in those cases.
The trial court's order setting aside the indictment is reversed, and the case is remanded for proceedings consistent with this opinion.
NOTES
[1] The State argues the convictions in the Dallas cases were final, notwithstanding written language in a probation order in each case indicating that they were not. The order in each Dallas case stated, "It is therefore considered, ordered and adjudged that the verdict and finding of guilty herein shall not be final." (Emphasis added.) The State concedes that this language renders the orders ambiguous and that the trial court's interpretation of the language must be reviewed under an abuse of discretion standard. During oral argument the State suggested that this language resulted from a simple clerical error in each case in which the wrong form (a form stating the conviction was not final) was presented to a Dallas trial judge for signature. We do not believe the trial court in our case abused its discretion in implicitly ruling that the probation orders show the Dallas cases to be nonfinal. If the trial judge in the Dallas cases did not intend the order in each case to reflect that the convictions were not final, the State could have corrected the error through a nunc pro tunc order. See Ex parte Dopps, 723 S.W.2d 669, 670 (Tex.Crim.App.1986). The record does not reflect any correction was ever attempted or made.
[2] Mosqueda is a legal sufficiency case, not a defective indictment case.
[3] See Smola v. State, 736 S.W.2d 265, 267 (Tex.App.-Austin 1987, no pet.) (holding that because the invalidity of the prior misdemeanor DWI conviction used to enhance appellant's subsequent DWI conviction related only to punishment, the district court had the authority to convict appellant of the lesser included offense of misdemeanor DWI). This remedy was not available in Mosqueda because of the particular circumstances present there, i.e., a jury trial where the instructions did not permit the jury to convict the appellant of a lesser included DWI offense. Mosqueda, 936 S.W.2d at 717-18. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352706/ | 59 S.W.3d 110 (2000)
CAROLYN B. BEASLEY COTTON COMPANY
v.
Kem RALPH, Individually and d/b/a Ralph Brothers.
Court of Appeals of Tennessee, at Jackson.
October 25, 2000.
Application for Permission to Appeal Denied May 21, 2001.
*111 David M Livingston, Brownsville, Tennessee, for the appellant, Kem Ralph.
*112 Russell W. Savory, Memphis, Tennessee, for the appellee, Carolyn B. Beasley Cotton Company.
Application for Permission to Appeal Denied by Supreme Court May 21, 2001.
OPINION
DAVID R. FARMER, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY K. LILLARD, J., joined.
This appeal arises from a breach of contract between Farmer and Broker. After signing a contract to deliver cotton to Broker, Farmer failed to do so. Broker was then forced to purchase the cotton elsewhere for a substantial loss and brought suit to recover the losses. At the start of the trial, Farmer requested that the trial court dismiss the case and order the parties to proceed to arbitration. Finding that Farmer had waived his rights under the contract to arbitration, the trial court refused. Proceeding with the case, court found that Farmer had breached the contract and awarded damages to Broker. We affirm.
On May 25 and again on June 8, 1995, Kem Ralph entered into written contracts with the Carolyn B. Beasley Cotton Company (Beasley).[1] Each contract stated that Mr. Ralph would sell Beasley 100 bales of cotton during the 1995-96 crop year. The dispute in this case arose sometime between December of 1995 and February of 1996, with each party arguing a different set of facts. Mr. Ralph claims that he informed Beasley in December of 1995 that he would be unable to fulfill his contracts. Beasley claims that it had no notice that Mr. Ralph intended to breach these contracts until it sent demands for delivery in late January and early February of 1996 that went unanswered. It is undisputed, however, that Beasley received no cotton from Mr. Ralph and had to purchase cotton on the open market to fulfill its obligations, resulting in a loss to Beasley of $13,050. Beasley demanded reimbursement from Mr. Ralph for this loss, and upon receiving no reply, filed suit for breach of contract.
Both sides conducted pre-trial discovery before the trial date set in August, 1997. However, at the beginning of this trial, Mr. Ralph moved the court that the case be sent to binding arbitration as provided in the contract. The trial court then delayed the start of the trial and took this request under consideration. Thereafter, the court found that Mr. Ralph, by his failure to request arbitration before the scheduled start of the trial, had waived his right to arbitration and denied the motion. The trial was conducted in March 1999. The court rejected Mr. Ralph's arguments that the contracts had no set price and were thus unenforceable. It also found that Beasley had acted properly to mitigate its damages. As such, Mr. Ralph was ordered to pay $13,050 in damages, plus pre-judgment interest, attorney's fees and court costs. This appeal followed.
The issues presented by the appellant on appeal, as we perceive them, are as follows:
1. Did the trial court err in denying the motion to transfer this matter to arbitration as provided under the contract?
2. Did the trial court err in failing to find the contract void due to contradicting terms regarding price?
3. Did the trial court err in failing to reduce the damages through a finding *113 that Beasley did not act to mitigate its damages?
To the extent that these issues involve questions of fact, our review of the trial court's ruling is de novo with a presumption of correctness. See Tenn. R.App. P. 13(d). Accordingly, we may not reverse the court's factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.1996); Tenn.R.App. P. 13(d). With respect to the court's legal conclusions, however, our review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.1999); Tenn. R.App. P. 13(d). The interpretation of a written contract is a matter of law, and thus, no presumption of correctness in its interpretation exists. See NSA DBA Benefit Plan, Inc. v. Connecticut Gen. Life Ins. Co., 968 S.W.2d 791 (Tenn.Ct.App.1997).
Arbitration
This court recently addressed the question of the waiver of arbitration in Rebound Care Corp. v. Universal Constructors, Inc., No. M1999-00868-COA-R3-CV, 2000 WL 758610, at *1 (Tenn.Ct.App. June 13, 2000) (no perm. app. filed). We stated in that case that
[i]n general, even in those jurisdictions where a contract for arbitration is irrevocable, the right to arbitration under the contract may be waived either by express words or by necessary implication, for example, where the conduct of a party clearly indicates an intent to waive the right to arbitrate. In those cases involving the issue of whether the defendant's participation in an action constitutes a waiver of the right to arbitrate the dispute involved therein, no general rules are readily apparent for determining waiver other than the general adherence by the courts to the principle that waiver is to be determined from the particular facts and circumstances of each case. . . .
Id. at *7 (citation omitted). Examining further, we noted that "[w]aiver is a matter of fact to be shown by the evidence." Id. at *6 (quoting Koontz v. Fleming, 17 Tenn.App. 1, 65 S.W.2d 821, 824 (1933)).
The determination of whether Mr. Ralph waived his right to arbitration is a factual determination for the trial court. Thus, we may not reverse the court's findings in this matter unless it is contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.1996); Tenn. R.App. P. 13(d). Upon our examination of the record, we note several actions by Mr. Ralph that suggest he waived his right to arbitration. As stated in the trial court's opinion denying the motion to proceed to arbitration, Mr. Ralph filed an answer to Beasley's original Complaint For Damages, as well as an answer to Beasley's Request for Production of Documents. In addition, Mr. Ralph took pretrial depositions, filed pretrial motions and attended pretrial settlement conferences. Indeed, Mr. Ralph made no mention of the arbitration clause until the original trial court date when he filed a motion to refer the matter to arbitration. With this evidence, we cannot state that the trial court's ruling is contrary to the preponderance of the evidence. As such, we hereby affirm the trial court's decision that Mr. Ralph, through his actions surrounding this dispute, waived his right to arbitration under the contract.
Validity of the Contracts
In determining the validity of a contract, the court should "ascertain the intention of the parties from the contract *114 as a whole and . . . give effect to that intention consistent with legal principles." Winfree v. Educators Credit Union, 900 S.W.2d 285, 289 (Tenn.Ct.App.1995), perm. app. denied (Tenn. May 01, 1995) (citations omitted). The words expressing the intentions of the parties should be given their usual and ordinary meanings. See Taylor v. White Stores, Inc., 707 S.W.2d 514, 516 (Tenn.Ct.App.1985). Thus, it is necessary for this court to examine the disputed portion of the contract to ascertain the intentions of the parties. This examination will allow us to determine if the parties formed the meeting of the minds required for a valid contract.
Mr. Ralph argues that the contract he entered into with Beasley did not represent a meeting of the minds between the two parties as to the price to be paid. The price portion of the disputed contract states:
PRICE AND OTHER TERMS: THE PRICES TO BE PAID FOR ACCEPTABLE COTTON SHALL BE AS FOLLOWS:
* *___73.00 NET___* *, 41 COLOR 4 & BETTER LEAF, 34 AND LONGER STAPLE, 3.5-4.9 MICRONAIRE 1994-95 C.C.C. LOANDISCOUNTS TO APPLY EXCEPT: 1-NO PREMIUM FOR STAPLE LONGER THAN 1-1/16". 2-50 POINTS PREMIUM PAID FOR 31 & BETTER COLOR 3 & BETTER LEAF AND 1-1/16" & LONGER. 3-THERE WILL BE NO PREMIUM PAID FOR LEAF GRADES HIGHER THAN THE CORRESPONDING COLOR GRADES (I.E. A 51 COLOR WITH 3 LEAF WILL BE PAID AR THE 51-5 VALUE.) 4-NO MICRONAIRE OR STRENGTH PREMIUMS. 5-NO PREMIUM FOR COLOR GRADE 31 LEAF 4. 6-REMARKS AND/OR EXTRANEOUS MATTER DISCOUNTED AN ADDITIONAL 250 PTS. RULE 5 OF THE MEMPHIS COTTON EXCHANGE TO GOVERN. MODULE AVERAGING FOR CLASSIFICATION ACCEPTED OR REJECTED AT BUYERS OPTION. COTTON WITH WAREHOUSE RECEIPTS DATED AFTER DECEMBER 25, 1995, SHALL BE DISCOUNTED 200 POINTS ON THIS CONTRACT. (73.00 LESS RESEARCH AND PROMOTION FEES, IF COMPRESS CHARGES REMAIN THE SAME.)
Mr. Ralph argues that "73.00 NET" was the price he believed he would be paid upon the delivery of his cotton. In his testimony, he describes the net price as the money he would be paid after "[a]ll the deductions." Beasley believed that the contract provided for a price of "73.00 less research and promotion fees." Thus, Mr. Ralph argues that as he believed that the price was to be "73.00 NET" and Beasley believed the price to be paid was "73.00 less research and promotion fees" and, as such, there was no meeting of the minds.
We believe that Mr. Ralph's argument ignores the clear language of the contract. It is apparent from the contract that the parties intended the price to be paid as "73.00 less research and promotion fees." While the term "73.00 NET" may have been confusing, the section of the contract referring to price clearly states what the final price would be for Mr. Ralph's cotton. Indeed, Mr. Ralph's own expert, Mr. Jim Nunn, testified on this matter. He stated that "the net price was the price unless the contract specified certain deductions." Mr. Ralph's expert went on to examine the contracts in this case and noted the contracts provided "the seller pays the research and promotion." From this testimony, it is evident that the contract clearly presented that the final price to be paid for Mr. Ralph's cotton was "73.00 less research and promotion fees." The contract *115 between them was valid and we affirm the trial court's finding that a valid contract existed between the parties.
Mitigation of Damages
"It is a well established rule in Tennessee that the party injured by the wrongful act of another has a legal duty to exercise reasonable and ordinary care under these circumstances to prevent and diminish the damages." North Carolina Mut. Life Ins. Co. v. Evans, Shelby Law No. 66, 1990 WL 212854, at *3 (Tenn.Ct.App. Dec.31, 1990) (citing Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29, 58 S.W. 278 (1900)). However, an injured party is not required to make extraordinary efforts. See id. "[T]he burden of showing that losses could have been avoided by the plaintiff by a reasonable effort to mitigate damages after defendant's breach of contract is on the defendant who breached the contract." Id. (citations omitted).
We note that a plaintiff is only required to mitigate damages after the defendant's breach of a contract. Thus, the essential question that must be answered in this case is exactly when the contract was breached by Mr. Ralph. Only after we determine the exact moment of the breach of the contract can we determine if Beasley properly acted to mitigate its damages. If, as Mr. Ralph argues, he breached the contract in December of 1995, then Beasley was under a duty to act promptly to mitigate its damages. If the breach occurred in late January or early February of 1996, then Beasley properly acted to mitigate its damages.
In this case, the exact moment of the breach is a question of fact for the trial court to decide. From the court's ruling that Beasley was entitled to $13,050 in actual damages, it is clear that the court found that the contract between the parties had been breached in late January or early February of 1996. As such, the trial court necessarily found that Beasley properly acted to mitigate its damages. As already stated in this opinion, we may not reverse the court's factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.1996); Tenn. R.App. P. 13(d). Upon our examination of the record, we cannot say that this finding is contrary to the preponderance of the evidence. Thus, we hereby affirm the trial court's decision on the date of the breach of the contract and its finding that Beasley acted properly to mitigate its damages.
Conclusion
Based on the foregoing conclusions, we hereby affirm the judgment of the trial court. Costs on appeal are assessed against the appellant, Kem Ralph, and his surety, for which execution may issue if necessary.
NOTES
[1] While Beasley and Mr. Ralph entered into several additional contracts during this period, in this case we are only concerned with the two cotton delivery contracts on May 25, and June 8, 1995. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352835/ | 209 Kan. 559 (1972)
498 P.2d 60
JUNE LUTZ, Appellant,
v.
VELMA L. PEINE, Appellee.
No. 46,351
Supreme Court of Kansas.
Opinion filed June 10, 1972.
Jerry W. Hannah, of Topeka, argued the cause, and William S. Bowers, of Ottawa, was with him on the brief for the appellant.
R. Michael Latimer, of Ottawa, argued the cause, and Richard O. Skoog, also of Ottawa, was with him on the brief for the appellee.
The opinion of the court was delivered by
OWSLEY, J.:
This is a personal injury action. Judgment was entered in favor of defendant on a special verdict of the jury. Plaintiff appeals.
Plaintiff Lutz was lying down across the seat of a parked 1950 Chevrolet pickup truck, asleep, when defendant Peine drove into the rear of the pickup in which the plaintiff was sleeping.
Thurman Carter and the plaintiff owned sheep which were *560 located at a farm near the scene. They drove the pickup from Ottawa, Kansas, to the scene where the collision occurred. Carter parked the pickup headed west "off the roadway between the fence and the grader ridge" on the east-west road. Carter was employed regularly by plaintiff and was paid every two weeks. He was also at the time of the collision under the direction and control of plaintiff.
The collision occurred shortly after 1:00 p.m., on October 19, 1967. The roadway was a smooth, gravel surface, twenty-five or thirty feet wide. The weather was clear; it was daylight; the sun was shining.
The pickup involved was owned by the plaintiff, but it was driven and parked by Carter. Carter, after parking the truck, proceeded to do some weed mowing while the plaintiff pulled weeds at the farm for about fifteen or twenty minutes. Because she was not feeling well, she returned to the pickup, lay down and fell asleep on the seat of the pickup, and was sleeping at the time of the collision.
The defendant testified at the trial that she and her husband ate lunch at their farm home southeast of Ottawa on the day in question at about noon. Thereafter, she left for Ottawa at about 1:00 p.m. Her home was about two and one-half miles from the accident scene.
The undersheriff of Franklin county who investigated the accident found the pickup occupied by plaintiff headed westerly, off the right side of the road. He testified that the right two-thirds of the front of defendant's car was damaged and that the left two-thirds of the rear of the pickup was damaged. At the trial the undersheriff said the pickup was about twenty feet east of a driveway and sitting "partly on the road and partly off the road."
The defendant saw Carter helping the plaintiff after the accident. She observed Carter going to the telephone, and after returning to the scene she again observed Carter helping plaintiff.
Plaintiff's injuries were established by the testimony of herself, Carter, her employer Phillip Everett, and Drs. M.E. Pusitz and Richard Tozer of Topeka. Plaintiff said the impact caused her breast to strike the steering wheel three times and that she was rendered unconscious. She was taken to the Ottawa hospital by ambulance where she remained twenty-four hours. She had pain in her neck and her head. She remained home over the weekend *561 with pain in the cheek and in the head and neck areas. On November 5, 1967, she was hospitalized for three weeks for chest pains that may have been complicated with pneumonia. She was later treated by Drs. Pusitz and Tozer. She made 121 trips from Ottawa to Topeka for therapy with Dr. Pusitz and none of these treatments helped her. Dr. Tozer testified the pneumonia that required her to go to the hospital several weeks after the accident was not related to the accident.
The record shows that plaintiff Lutz was precluded from showing that defendant Peine had testified in her discovery deposition that she had been watching Carter on the mowing machine prior to the impact.
At the conclusion of the trial, the plaintiff moved for a directed verdict on the issue of liability. In considering the motion, the court ruled that the defendant was negligent and that her negligence was a proximate cause of the collision, and also ruled that the question of contributory negligence should be submitted to the jury. The case was submitted to the jury on the two following special questions:
"1. Do you find the defendant has met the burden of proof that plaintiff was contributorially [sic] negligent in the manner the vehicle was parked and that this contributed as a proximate and direct cause of the collision?
"2. What amount of money would compensate plaintiff for the injuries and damages she received from the collision?"
The jury returned their verdict answering question No. 1, "Yes," and answering question No. 2, "$5,000.00." The plaintiff filed a motion for a new trial, which was overruled by the trial court and judgment was entered for the defendant on the special question. The plaintiff appeals from this ruling.
We first refer to the propriety of submitting question No. 1 to the jury. The form of the question requires three answers. Did defendant meet the burden of proof? Was plaintiff contributorially negligent in the manner the vehicle was parked? Was the manner the vehicle was parked a proximate cause of the collision? The main object of special questions is to ferret out the various facts separately in order to enable the court to apply the law and to guard against any misapplication of the law by the jury. (Allen v. Ellis, 191 Kan. 311, 380 P.2d 408.) A special question should be clear and understandable, requiring a single answer on one issue of fact. This question requires one answer to three questions. It *562 also asks the jury to answer questions which are basically issues of law. (Ziegelasch v. Durr, 183 Kan. 233, 326 P.2d 295.) We have approved verdicts based on like questions, but such questions were supplemented by questions requiring specific findings of fact. (Applegate v. Home Oil Co., 182 Kan. 655, 324 P.2d 203.)
The only act of negligence charged against the plaintiff was the manner in which the truck was parked. The jury was instructed on this issue as follows:
"The laws of Kansas provide that upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of the highway, but in every event a clear and unobstructed width of at least twenty feet of the highway opposite the standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway." (In accord with PIK 8.47a, page 212.)
The court instructed that the defendant had the burden of proving contributory negligence. (Instruction No. 9.) The jury was also instructed that violation of a duty or a law is negligence, but that to permit recovery such negligence had to be a direct cause of the injury and damage. (Instruction No. 13.) Although not covered in the instructions, it follows that a violation of a duty or a law is contributory negligence, but to deny recovery such contributory negligence had to be a direct cause of the injury or damage.
Carter testified he parked the truck on the right side of the roadway headed in a westerly direction; that he parked the truck off the roadway between the fence and the grader ridge. (Exhibits 1 and 2 disclose the grader ridge was off the traveled portion of the highway.) Carter also testified the roadway was twenty-five or thirty feet in width at that point.
Plaintiff Lutz testified they parked off the road and into the ditch between the grader ridge and the fence line.
Undersheriff Richardson testified that the right two-thirds of the front of defendant's vehicle was damaged, and the left two-thirds of the pickup was damaged. He also testified:
"Q. And can you tell the Court and jury approximately where at the scene the truck was positioned at the time you arrived?
"A. At the time I arrived the truck was about, around 20 feet from the driveway sitting partly in the road and partly off the road.
"Q. All right, about 20 feet which direction from the driveway?
*563 "A. This is approximately, it is east of the driveway.
"Q. And you say it was part in the ditch and part in the road?
"A. Yes."
Since the testimony of the undersheriff as to the location of the plaintiff's truck was about an hour after the collision, we do not believe the testimony has any probative value as to the location of the truck at the time of the collision. The record discloses no evidence on which the jury could find the plaintiff violated any duty or law as to the manner in which the truck was parked; thus, defendant failed to sustain the burden of proof on this issue. In the absence of evidence to support an answer, the court erred in submitting question No. 1 to the jury.
It follows that the court should have submitted the cause on the question of damages only. Since the issue of damages was submitted and the jury made a determination of the amount, should this amount be binding on the parties on appeal? We cannot speculate on the effect of submitting question No. 1 on the answer to question No. 2. The jury was properly instructed on the elements of damage. In the absence of any contrary showing, we must assume the jury correctly and consciously followed the court's instructions.
Notwithstanding this reasoning, plaintiff claims she is entitled to a new trial on the issue of damages because of the inadequacy of the judgment. She points out that the evidence disclosed special damages of $6,690.85 and the jury's verdict was $5,000.00. The items of special damages were medical bills, $2,385.85; income loss to date of trial, $2,453.00; travel expense for therapy (121 trips), $1,452.00; and physical damage to truck, $400.00. The record does not disclose that the defendant questioned any of these items of damage. Defendant argues on appeal that $1,245.35 of these damages resulted from a pneumonia episode unrelated to the accident. Defendant also argues that a portion of the doctor bill and travel expense related to therapy treatments could have been disallowed, based on plaintiff's statement that they did not help her.
In Timmerman v. Schroeder, 203 Kan. 397, 454 P.2d 522, a statement listing medical expenses of $357.95 was admitted into evidence by agreement of the parties. In this case the jury returned a verdict of $357.95, notwithstanding evidence of pain and suffering and disfigurement. We said:
*564 "A verdict in a personal injury action limited to the exact amount of uncontradicted medical expenses incurred as a result of an accident, and which verdict includes nothing for the pain and suffering or permanent injury, shown by uncontradicted evidence is in part contrary to the evidence and should be set aside on motion for new trial...." (p. 399.)
The uncontradicted medical expense and loss of wages of the plaintiff was $5,445.50 after eliminating the expense of the pneumonia episode. The statement of plaintiff that the therapy treatments did not help her does not justify a disallowance of the cost of the treatments. We do not believe there is any distinction between the medical expense dealt with in Timmerman and the medical expense and loss of wages involved here. The result is that the jury failed to make any award for pain and suffering or temporary and permanent injuries incurred by the plaintiff in this action.
We also stated in Timmerman:
"A new trial on the issue of damages only should not be granted when there appears a strong suspicion that inadequate damages were awarded as a compromise on the issues of liability and damages...." (p. 401.)
The jury in this case found that plaintiff was guilty of contributory negligence. In view of this no compromise could have been made. A compromise could exist only under circumstances where the jury found the plaintiff was not guilty of contributory negligence.
The trial court found the defendant was guilty of negligence as a matter of law and that her negligence was a proximate cause of the collision. On appeal we find the plaintiff free of contributory negligence as a matter of law. We can see no legal reason why the issue of liability should be tried again. We conclude this action should be remanded to the trial court with instructions to try the issue of damages only. We are satisfied that justice demands this result.
Reversed and remanded with instructions. | 01-03-2023 | 10-30-2013 |
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