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https://www.courtlistener.com/api/rest/v3/opinions/1352850/ | 147 S.W.3d 875 (2004)
Brett D. KISKER, Respondent,
v.
DIRECTOR OF REVENUE, State of Missouri, Appellant.
No. WD 63712.
Missouri Court of Appeals, Western District.
November 2, 2004.
Jeremiah W. (Jay) Nixon, Atty. Gen., Karen Hess, Office of Attorney General, Jefferson City, for appellant.
Scott W. Ross, Maryville, for respondent.
RONALD R. HOLLIGER, Presiding Judge.
The Director of Revenue appeals the trial court's judgment in favor of Brett *876 Kisker setting aside the suspension of Kisker's driving privileges. The judgment also taxed costs against the Director. The Director presents three points on appeal. The Director first contends that the trial court erred by setting aside the suspension of Kisker's license on the basis of "metabolic curve" expert testimony. Specifically, the Director takes the position that the testimony in question was based upon facts and data that were not otherwise reasonably reliable. Second, the Director argues that the trial court erred in setting aside the suspension on the grounds that the court misapplied the law and its judgment was against the weight of the evidence and was not supported by substantial evidence, given that Kisker failed to rebut the Director's prima facie case. Third, the Director claims that the trial court's assessment of costs against the Director was improper and violated Section 536.085.1, RSMo 2000.
We reverse the judgment below, insofar as it assesses costs against the Director, but affirm the judgment below in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Around 1:00 A.M. on June 6, 2003, Brett Kisker was stopped by Sergeant David Todd of the Maryville Department of Public Safety, after Kisker was observed by Sergeant Todd making two turns without using a turn signal. Kisker admitted drinking that evening, though claiming that he had not consumed "very much" alcohol.
Field sobriety tests were begun, but were interrupted by rain. Sergeant Todd took Kisker into custody and transported him to the Maryville Police Department for additional field sobriety testing. That subsequent sobriety testing indicated signs of intoxication. Kisker agreed to undergo breath testing to determine his blood alcohol level. That test was administered at 1:33 A.M., and indicated a blood alcohol level of .080 percent.
At trial, Kisker offered testimony regarding his consumption of alcohol prior to his arrest. He also offered expert testimony by Dr. James Fleming, who rendered an opinion that, based upon the data previously provided by Kisker (which was consistent with Kisker's testimony at trial), that his blood alcohol level was below .080 percent at the time he was stopped by Sergeant Todd. The trial court found that Kisker had rebutted the Director's prima facie case and reinstated Kisker's driving privileges. The Director appeals.
DISCUSSION
The judgment of the trial court must be affirmed, unless the trial court's judgment is not supported by substantial evidence, is against the weight of the evidence, or it incorrectly declares or applies the law. See Hampton v. Dir. of Revenue, 22 S.W.3d 217, 220 (Mo.App.2000). We view the evidence and the reasonable inferences drawn therefrom in the light most favorable to the judgment. Terry v. Dir. of Revenue, 14 S.W.3d 722, 724 (Mo.App.2000). If the judgment is supported by substantial evidence, it will be upheld, regardless of whether this court would have reached a different result. Hampton, 22 S.W.3d at 220.
I. Admissibility of "Metabolic Curve" Expert Testimony
The Director's first point on appeal contends that the trial court erred by admitting "metabolic curve" testimony by Kisker's expert, Dr. Fleming, because that testimony was premised upon facts and data that were not otherwise reasonably reliable. As such, the Director claims that the evidence was inadmissible under Section 490.065.3, RSMo 2000.
*877 The Director relies primarily upon inconsistencies between the data utilized by Dr. Fleming in rendering an opinion that Kisker had a blood alcohol level under .080 percent at the time he was operating the vehicle and the information provided to the arresting officer by Kisker and noted on the officer's alcohol influence report. There were inconsistencies between the data relied upon by Dr. Fleming and the information contained within the alcohol influence report. However, the alcohol influence report is also inconsistent with Kisker's testimony at trial. That testimony was, in turn, consistent with the data relied upon by his expert. Essentially, the Director's point is little more than a claim that the trial court should have found the alcohol influence report more credible than Kisker's testimony and, therefore, found Dr. Fleming's data to be unreliable.
It is not the role of this court to reweigh the evidence or to substitute our judgment with regard to the credibility of witnesses. Instead, we must view the evidence in the light most favorable to the trial court's judgment. The determination of a witness' credibility is a factual issue. Hampton, 22 S.W.3d at 220. We defer to the trial court on such matters, given that it has a "superior ability to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript." Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App.2004).
By accepting the testimony of Dr. Fleming, we can infer that the trial court found Kisker's testimony, which reflected the data relied upon by his expert, to be more credible and accurate than the information transcribed by the arresting officer within the alcohol influence report. See generally, Schreibman v. Zanetti, 909 S.W.2d 692, 698 (Mo.App.1995).
The Director's first point on appeal is denied.
II. Sufficiency of the Evidence
The Director's second point on appeal argues that the trial court erred in granting judgment in Kisker's favor because he failed to rebut the Director's prima facie case. In order to make a successful rebuttal, here, Kisker was required to present evidence that raised a genuine question of fact as to whether his blood alcohol concentration was above the legal limit at the time he was stopped by the arresting officer. Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 546 (Mo. banc 2003). In her argument, the Director takes the position that there was not a successful rebuttal of the Director's prima facie case because Dr. Fleming's testimony was insufficient to show that Kisker's blood alcohol level was under .080 percent at the time he was stopped and no other evidence was presented to establish that his blood alcohol level was below the legal limit at the time he was stopped.
The essence of the Director's criticism of Dr. Fleming's testimony is that it was based solely upon information provided by Kisker and inserted into a calculation worksheet. The expert did not conduct any testing of Kisker and the particular rate at which he absorbs or metabolizes alcohol, to either confirm or refute certain assumptions made within that worksheet. The issues raised by the Director touch upon the weight and credibility of Dr. Fleming's expert testimony. Again, those were matters for the trial court to resolve and we must defer to those determinations.
Under the evidence presented at trial, Kisker's breathalyzer test, conducted some time after he was stopped by the arresting officer, registered a blood alcohol level right at the legal limit of .080 percent. Dr. *878 Fleming testified that Kisker, to a reasonable degree of medical certainty, had an actual blood alcohol level somewhat lower than .080 percent at the time he was stopped, placing it below the legal limit. This testimony was sufficient to raise a genuine issue of fact as to whether Kisker had a lower blood alcohol level than .080 percent at the time he was stopped by the arresting officer. Given such evidence, the trial court did not err in finding that Kisker had successfully rebutted the Director's prima facie case. Point denied.
III. Assessment of Costs Against the Director
In the third and final point on appeal, the Director contends that the trial court erred in its judgment by ordering the Director to pay the costs of the action. Section 536.087.1, RSMo 2000, permits the assessment of costs against the losing party in an agency proceeding or civil action. However, drivers' license proceedings are expressly excluded from such assessment pursuant to Section 536.085(1), RSMo 2000. Kisker concedes that the trial court was without authority to assess costs against the Director and that the assessment of costs must be reversed.
We, therefore, reverse the judgment below, insofar as it assessed costs against the Director. In all other respects, the judgment is affirmed.
PATRICIA BRECKENRIDGE, Judge, and JOSEPH M. ELLIS, Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352854/ | 147 S.W.3d 846 (2004)
Steve STACY, Petitioner-Appellant,
v.
DEPARTMENT OF SOCIAL SERVICES, DIVISION OF MEDICAL SERVICES, Respondent-Respondent.
No. 25876.
Missouri Court of Appeals, Southern District, Division Two.
October 29, 2004.
*848 Jeremiah W. (Jay) Nixon, Atty. Gen., David P. Hart, Office of Atty. Gen., Jefferson City, for appellant.
Daniel T. Moore, John M. Albright, Moore, Walsh & Albright LLP, Poplar Bluff, for respondent.
KENNETH W. SHRUM, Judge.
This appeal stems from an effort by Missouri's Department of Social Services ("DSS") to sanction Steve Stacy ("Stacy") for failing to timely supply DSS with professional counseling records relating to his Medicaid clients that he was obligated to keep and produce upon request. DSS sanctioned Stacy by ordering him to return $56,207. Stacy appealed DSS's order to Missouri's Administrative Hearing Commission ("Commission"). After Commission affirmed DSS's decision, Stacy petitioned the Butler County circuit court for review. Except for $3,946.86 (which the court found Stacy owed), the trial court ruled favorably to Stacy. This appeal by DSS followed.[1]
FACTUAL AND PROCEDURAL BACKGROUND
Stacy is a licensed professional counselor who provided counseling for Medicaid qualified individuals per a written Medicaid provider contract. His contract with DSS provided, inter alia:
"6. All providers are required to maintain fiscal and medical records to fully disclose services rendered to Title XIX Medicaid recipients. These records shall be ... made available on request by an authorized representative of the Department of Social Services.... Failure to submit or failure to retain documentation for all services billed to the Medicaid Program may result in the recovery of payments for Medicaid services...."
In the year 2001, DSS opted to audit Stacy's records to see if he had complied with applicable rules and regulations for Medicaid providers.[2] The audit was conducted by DSS employee, Scott Elwood ("Elwood"). It proceeded as follows.
Elwood contacted Stacy in person, handed him a letter, and told Stacy he was there to "audit his records." Stacy answered that his records "were not available" because they were in Kennett, Missouri. Elwood answered, "just send them to me."
Stacy responded by sending Elwood his "progress notes" for Medicaid clients seen during the audit period. He limited his response to progress notes only because these notes were the focus of an earlier audit.
*849 Upon receipt of the progress notes, Elwood could not "find any start stop times on the entries." Without "time spent with patient" information, Elwood could not resolve whether Stacy's billings for each client visit were correct. Accordingly, he contacted Stacy a second time.
At their second meeting, Elwood asked Stacy if "he had any calendar, appointment books or anything of when he's seeing these kids." Stacy answered, "No." Thereon, Elwood asked Stacy to sign a "Document Disclosure Statement," which he did, wherein the following is found:
"I have received a list of recipients which are requested for review. I have been requested to disclose all medical record documentation, in its entirety, for services billed."
"I hereby state that I have produced and disclosed all medical records, documents, calenders [sic], appointment books, logs which would reflect the amount of time I spent in delivery of services billed in their entirely [sic], to the above State agency as requested."
With only progress notes in hand, Elwood reviewed them and concluded Stacy had not complied with Medicaid regulations on record keeping and record production. Because of the noncompliance, DSS ruled Stacy should be sanctioned by ordering recoupment from Stacy of sums paid to him by DSS.
In so ruling, DSS found three deficiencies in the records produced. Category "A" deficiencies were those in which Stacy's records lacked a "start or stop time" for the services billed. For this, DSS demanded $44,367.18 reimbursement. Category "B" concerned records that did not reveal what type of therapy was provided. For this, DSS ordered a $3,946.86 reimbursement. Finally, Category "C" were instances where Elwood found "no documentation at all in [Stacy's] records for those particular dates of service." The Category "C" reimbursement demand totaled $7,893.86.
Once the audit was completed, DSS notified Stacy of its findings and demand for reimbursement. Thereon, Stacy tendered an additional record to Elwood for his consideration. This previously undisclosed document contained "start and stop" times for each disallowed service. Elwood refused to accept or consider the document, however, because it was submitted after the audit period. This was in accord with DSS's policy that it would not consider records tendered after the audit results were announced "because they [the records] could be reconstructed."
Stacy timely appealed to the Commission. Commission held an evidentiary hearing, where it found for DSS. In doing so, Commission found that Elwood "asked for all records pertaining to Stacy's clients, that Stacy did not provide the billing information at that time, and that he cannot supplement the record at a later time." The Commission ruled that Stacy's failure to produce mandated records during the audit period violated relevant regulations, including 13 CSR 70-3.030(2)(A)(4).[3] It then cited additional regulations to affirm DSS's decision ordering Stacy to repay $56,207.80.
After Stacy appealed Commission's decision to the Butler County circuit court, it reversed Commission's decision, except the Category "B" reimbursement ordered by Commission. This appeal by DSS followed.
STANDARD OF REVIEW
On appeal, this court reviews the Commission's decision not the judgment of *850 the trial courtto determine if the agency action is, inter alia, unsupported by competent and substantial evidence upon the whole record, or is "arbitrary, capricious or unreasonable." §§ 536.140.2 and 621.145 (RSMo 2000); State Bd. of Reg. Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo.banc 2003); Americare Sys., Inc. v. Mo. Dept. of Soc. Services, 808 S.W.2d 417, 419 (Mo.App.1991).
A party aggrieved by an administrative agency decision has the burden of persuasion upon appeal to this court. We presume that the Commission's decision is valid, and the burden is the attacking party's to overcome. Hernandez v. State Brd. of Reg. for Healing Arts, 936 S.W.2d 894, 900[5] (Mo.App.1997). That burden has been described as "heavy." State ex rel. Sure-Way Transp., Inc. v. Div. of Transp. Dept. of Econ. Dev., State of Mo., 836 S.W.2d 23, 25[2] (Mo.App.1992).
APPLICABLE LAW AND REGULATIONS
Medicaid service providers such as Stacy must make available and disclose to DSS all records "relating to Medicaid recipients" served by the provider. 13 CSR 70-3.030(2)(A)(4). "Failure to make these records available on a timely basis ..., or failure to provide copies as requested, or failure to keep and make available adequate records which adequately document the services and payments shall constitute a violation of this section and shall be a reason for sanction." Id.
The term "records" is defined by regulation to mean "books, papers, journals ... and any other recordings of data or information made by or caused to be made by a provider relating in any way to services provided to Medicaid recipients and payments charged or received." 13 CSR 70-3.030(1)(J) (emphasis supplied).
"Adequate documentation means documentation from which services rendered and the amount of reimbursement received by a provider can be readily discerned and verified with reasonable certainty." 13 CSR 70-3.030(1)(A) (emphasis supplied).
Monies paid a provider for services not verified by adequate records shall constitute an overpayment. 13 CSR 70-3.130(2)(C)(4). By definition, "overpayment" is "an amount of money paid to a provider by the Medicaid agency to which s/he was not entitled by reason of improper billing [or] lack of verification...." 13 CSR 70-3.130(1)(E).
DISCUSSION AND DECISION
Because we review Commission's decision (which was adverse to Stacy), it is Stacy's appellate brief that delineates the issues this court must resolve. See Rule 84.05(e).[4]
Stacy's first point maintains the Commission erred when it affirmed DSS's finding of entitlement to reimbursement for Category "A" billings. He structures his point as follows:
"[C]ommission erred in ordering ... recoupment of ... $44,316.18 because agency actions must be supported by competent and substantial evidence on the whole recorded [sic], based on lawful procedures avoiding arbitrary, capricious and unreasonable results and in this case [Stacy] kept an accurate record of the start and stop times of the session *851 and when [DSS] specifically requested the [start/stop] records [Stacy] produced the same thus, [Stacy] was in compliance."
As we understand it, Stacy is making a two-fold claim. First, he asserts that when Elwood first announced his intent to audit records, he (Stacy) had records of start/stop times of his consultations with Medicaid clients, and he could have produced those records had Elwood explicitly asked for them, but Elwood never told Stacy that start/stop time records were part of the audit. Stacy asserts he initially furnished Elwood with what was asked for, i.e., progress notes. Later, when Elwood asked Stacy for "a calendar, appointment books or anything of when he's seeing these kids," Stacy still did not understand that start/stop records were at issue; consequently, he answered the second inquiry in the "negative." Stacy claims that, as Elwood's second visit ended, he (Stacy) signed the document disclaimer statement because he did not keep calendars or appointment books; that he simply did not understand Elwood wanted to audit start/stop time records. Stacy maintains, therefore, that his act of furnishing progress notes plus his recordation of start/stop times (even though the latter records were not disclosed during the audit period) proved his compliance with regulations, and that Commission's decision to the contrary was not supported by competent and substantial evidence.
The initial phase of Stacy's argument is premised on his contention that Elwood asked only for progress notes at their first meeting. The Commission found otherwise, in that when Elwood initially met with Stacy, he (Elwood) requested Stacy's "records." Commission's findings on this issue are supported by substantial evidence.[5] Specifically, Elwood testified that when he and Stacy first met, he handed Stacy a letter and told Stacy he was there to conduct an audit and asked for "his records." Neither Elwood nor Stacy testified that "progress notes" were the only records mentioned during their first meeting. Reasonable minds could accept Elwood's testimony as adequate to support the finding that it was "records" that he requested. Consequently, Commission's rulings are supported by "substantial" evidence," Daly, 77 S.W.3d at 651, and Stacy's premise that only progress notes were requested is faulty.
Second, although Stacy has always insisted he never understood Elwood wanted start/stop records until after the audit was over, the Commission disposed of that argument by noting:
"Stacy knew ... he was being audited to check the accuracy of his Medicaid payments and his compliance with applicable laws and rules. This knowledge combined with the request for records should have alerted him that the time he spent with each client information he used in billing Medicaid would be an important part of that client's records."
Ample evidence exists to support that conclusion.
First, there is the provider contract by which Stacy agreed to "maintain fiscal and medical records to fully disclose services rendered to Title XIX Medicaid recipients[ ]" and produce those records when DSS requested them. Second, there was evidence that DSS furnished Stacy a provider manual and circulated medical bulletins that instructed him regarding documentation and recorded the meaning of *852 those terms. Third, after Stacy provided his progress notes (which had no time-expended recordation or start/stop times), Elwood alerted Stacy that his progress notes were insufficient by asking him for additional documentation of any "calendar, appointment books or anything" that documented dates and times he saw Medicaid recipients. Finally, there is the "Documentation Disclosure Statement" signed by Stacy, in which he represented he had produced and disclosed all "logs which would reflect the amount of time I spent in delivery of services billed." This evidence, plus the fact that Elwood's request was for "records" (without restriction as to scope) and testimony that Stacy's pay was based on time spent with each client, supports Commission's ruling that Elwood's request encompassed all records relating to Stacy's clients, including start/stop times for each consultation.
At the Commission hearing, Stacy admitted his progress notes had no "start and stop time" information. Moreover, review of his progress notes shows they are devoid of any information, however characterized, from which the amount of time Stacy spent with each client could be calculated. Without such time information, neither DSS, nor the Commission, nor this court could verify with reasonable certainty what reimbursement Stacy was entitled to receive. See 13 CSR 70-3.030(1)(A) (definition of adequate documentation). Accordingly, reasonable minds could accept this proof of nonproduction of essential documents as substantial evidence of Stacy's noncompliance with relevant regulations and, thus, warrant DSS's imposing the overpayment sanction. See 13 CSR 70-3.030(2)(A)(4). We reject Stacy's argument to the contrary.
The second part of Stacy's Point I argument reprises his claim that DSS never "plainly and concisely" told Stacy what records it wanted from him. Stacy charges that the record, when viewed as a whole, shows a "deliberate scheme" by DSS to "hoodwink" him. With that as his premise, Stacy characterizes Commission's "$44,000.00 sanction for not producing records never requested" as an "arbitrary, capricious, or unreasonable" action that should be corrected by judicial review per section 536.140.2(6) (RSMo 2000). He insists that, on this record, failure to give him "even one opportunity to supply the missing information, which was readily available had it been asked for" was fundamentally unfair; that reversal should occur because of Commission's and DSS's "arbitrary and capricious" rejection of the belated tender of start/stop records.
"The finding of an administrative body is arbitrary and unreasonable where it is not based on substantial evidence." Edmonds v. McNeal, 596 S.W.2d 403, 407[3] (Mo.banc 1980).
"Whether an action is arbitrary focuses on whether an agency had a rational basis for its decision. Capriciousness concerns whether the agency's action was whimsical, impulsive, or unpredictable. To meet basic standards of due process and to avoid being arbitrary, unreasonable, or capricious, an agency's decision must be made using some[thing other] than mere surmise, guesswork, or `gut feeling.' An agency must not act in a totally subjective manner without any guidelines or criteria."
Mo. Nat'l Educ. Ass'n v. Mo. State Bd. of Educ., 34 S.W.3d 266, 281 (Mo.App.2000) (citations omitted).
Measured by these principles, the second part of Stacy's argument also fails. Although complete candor by Elwood might have included an explicit request for "time spent with client" records, we have already found there was substantial evidence *853 to support Commission's conclusion that Stacy should have known the "time he spent with each client information he used in billing Medicaid would be an important part of the client's records[ ]" and, thus, "was part of what Elwood was looking for." Moreover, DSS (via Elwood's testimony) presented Commission with a rational basis for the decision not to accept Stacy's belated tender of records, namely the general concern that records furnished outside the audit period might "be reconstructed," or created after audit results were announced. Stacy produced no proof that DSS's refusal to consider records produced after the audit period was "whimsical, impulsive or unpredictable." Likewise, he presented nothing from which it could be found or inferred that DSS's refusal to consider his tender of documents stemmed from "surmise, guesswork or `gut feeling'" about belated creation of records or that it was part of a "deliberate scheme" to "hoodwink" him. To the contrary, the record supports a finding that an "objective standard" existed, as DSS consistently refused to consider records produced after audit completion.
In sum, Stacy has not carried his heavy burden of showing that Commission's decision was unsupported by substantial evidence or that DSS and Commission acted arbitrarily, unreasonably, or capriciously in refusing to consider records presented by Stacy after DSS's audit was complete. Commission's order affirming DSS's action in ordering repayment by Stacy of $44,316.18 because of his failure to timely provide adequate documentation of time spent with clients will be affirmed. Stacy's first point is denied.
Stacy's second point on appeal maintains that Commission erred when it ordered repayment of "$7,893.76 under the claim of a lack of documentation." Continuing, Point II asserts this was error "because there was no evidence to support the decision ... in that [DSS] offered no evidence from any witness that the progress notes did not, in fact, distinguish family counseling from individual counseling." The argument beneath Point II in Stacy's brief has only seven sentences of "argument" and is wholly conclusory in nature. More than that, the seven sentences of "argument" bear no relationship to the Commission error about which Stacy complains in his second point relied on.
To explain this, we revisit the Category "B" deficiency. Specifically, Category "B" listed those instances where Stacy's progress notes did not reveal the type of therapy provided, either family or individual counseling. This resulted in a $3,946.86 overpayment demand.
The Category "C" deficiencies were different. Specifically, the Category "C" deficiencies were those instances where Stacy's progress notes did not "provide any documentation for [certain described] services ... billed to Medicaid." For this problem, DSS ordered Stacy to repay $7,893.76. In describing Category C record deficiencies, Commission noted that "if there is no record of service, this is clearly inadequate documentation."
Stacy's second point charges the Commission erred when it ordered repayment for Category "C" deficiencies, i.e., no documentation whatsoever. However, in asserting why this was error in the context of the case a briefing requirement per Rule 84.04(d)(1)(C) Stacy's given reasons relate exclusively to the Category "B" part of Commission's order, i.e., records of the service exist but are not adequate to show whether the therapy provided was for an individual or family.
Rule 84.04(d) mandates that a point relied on "state why the ruling was erroneous and wherein the evidence, lack thereof, *854 or other matters, supports the position the party asserts the [Commission] should have taken." In re Marriage of Hayes, 12 S.W.3d 767, 769 (Mo.App.2000). Stacy has violated this fundamental precept of acceptable briefing by citing evidence that could only relate to a claim of Commission error in connection with Category "B" record deficiencies, when his point charges Commission with a different error, namely ordering recoupment for Category "C" record deficiencies ($7,893.76 under the claim of a lack of documentation). When, as here, a claim of error is made in a point relied on, but not developed in the argument part of the brief, it is deemed abandoned. City of Rolla v. Armaly, 985 S.W.2d 419, 426-27[13] (Mo.App.1999).
We also note that Rule 84.04(e) limits the argument under each point to those asserted in the point relied on. Accordingly, appellate courts decide only those questions set out in the point, Boatmen's Bank v. Foster, 878 S.W.2d 506, 509[5] n. 4 (Mo.App.1994), and decline to review arguments or decide issues put forth in the argument part of a brief that are not fairly encompassed within the point. Mullenix-St. Charles Prop. v. City of St. Charles, 983 S.W.2d 550, 559[17] (Mo.App.1998). An appellant must develop in the argument section of his or her brief the same claim of error made in the point relied, and the failure to support or develop claims of error in the argument portion of the brief amounts to an abandonment of that point of error. Luft v. Schoenhoff, 935 S.W.2d 685, 687 (Mo.App.1996).
These precepts track Rule 84.13(a) which provides, "[A]llegations of error not briefed or not properly briefed shall not be considered in any civil appeal." For the reasons stated, Stacy's second point is not properly briefed and we deem it abandoned. Point dismissed.
We reverse that part of the circuit court judgment which set aside the Administrative Hearing Commission's order that authorized the DSS to recoup from Stacy the sum of $44,367.18 for Category "A" record deficiencies and remand with directions to the trial court to reinstate the Administrative Hearing Commission's order with respect to the $44,367.18 recoupment amount. We also reverse that part of the circuit court's judgment which set aside the Administrative Hearing Commission's order that authorized DSS to recoup from Stacy the sum $7,893.76 for Category "C" record deficiencies and remand with directions to the trial court to reinstate the Administrative Hearing Commission's order with respect to the $7,893.76 recoupment amount. The judgment of the trial court is affirmed to the extent that it upheld the decision of the Administrative Hearing Commission with respect to the $3,946.86 recoupment amount.
PARRISH, P.J., and BATES, C.J., concur.
NOTES
[1] Stacy has not appealed that part of the judgment that found DSS was entitled to recoup $3,946.86 from Stacy.
[2] He was selected for auditing because he was on the "exception report," i.e., he ranked above his peers in the amount of time he billed for services allegedly rendered to Medicaid recipients.
[3] All references to regulations are to 13 CSR 70, Chapter 3 (2001).
[4] All rule references are to Supreme Court Rules (2004), unless otherwise indicated. Rule 84.05(e) provides that when, as here, a circuit court reverses an administrative agency decision and this court reviews the agency decision not the circuit court's judgment the party aggrieved by the agency decision must file the first, i.e., the appellant's brief.
[5] Substantial evidence in the administrative law context has been defined as any relevant evidence that reasonable minds might accept as adequate to support a conclusion. Daly v. P.D. George Co., 77 S.W.3d 645, 651[9] (Mo.App.2002). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353072/ | 224 Ga. 487 (1968)
162 S.E.2d 421
STRICKLAND et al.
v.
GEORGIA CASUALTY & SURETY COMPANY et al.
24636.
Supreme Court of Georgia.
Argued May 14, 1968.
Decided July 2, 1968.
Rehearing Denied July 16, 1968.
McDonald & Mills, J. C. McDonald, Ben Mills, George R. Jacob, Powell, Goldstein, Frazer & Murphy, C. B. Rogers, David Aufdenspring, for appellants.
William G. Scranton, Jr., James H. Blanchard, Swift, Pease, Davidson & Chapman, for appellees.
UNDERCOFLER, Justice.
This is an action by an insurer for declaratory judgment upon its automobile liability insurance policy. The appeal is from the striking of the defenses asserting that the petition fails to state a claim upon which relief can be granted and that it requests an advisory opinion, the granting of plaintiff's motion for summary judgment, and the issuance of a permanent injunction.
The petition alleges that the vehicle described in said policy was involved in a collision with another vehicle; that as a result thereof suits for damages have been filed against one Williams, the driver of the vehicle, one Carter, an occupant of the insured vehicle, both of whom are employees of the named insured, and the named insured; that at the time of the collision Williams did not have permission to drive the vehicle but had been specifically forbidden to drive it; that Carter knew of this prohibition and did not have permission to allow him to drive it; and that neither Williams nor Carter had permission to use said vehicle within the scope of his employment as alleged in said damage suit. The petitioner prayed for a judgment decreeing that *488 it was not required to defend the suits against Williams and Carter or to pay any judgment that might be rendered against them therein.
The controversy is concerned with the following provision of the policy commonly referred to as the "omnibus clause":
"Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word `insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either."
The evidence shows that the named insured used said vehicle in his business; that it was a practice to allow Carter, one of his employees, to use the insured vehicle to transport himself and other employees to and from their homes and place of work and to keep the vehicle overnight at his home; that the named insured had forbidden Williams, also an employee, to drive the vehicle and this fact was known to Carter; that prior to the collision Williams, Carter, and others, after leaving their work went "joyriding" in the vehicle, but at the time of the collision the vehicle was being driven by Williams with Carter accompanying him and was proceeding from Williams' home to Carter's home along the road normally traveled. The evidence is conflicting as to whether or not Carter had permission from the named insured to use the vehicle on this occasion. There is no evidence as to whether the named insured's spouse had or had not granted such permission.
1. In a declaratory judgment action, "Matters which may be fairly inferred from the facts alleged may be regarded as sufficiently pleaded as against a demurrer." Anderson on Declaratory Judgments (2d Ed.), 742, § 318. We find that the petition alleges that neither the named insured nor his spouse had granted any permission, either express or implied, to Williams or Carter, to use the vehicle. Accordingly, there is a justiciable controversy in the instant case and the petition states a claim upon *489 which relief can be granted. Mensinger v. Standard Acc. Ins. Co., 202 Ga. 258 (42 SE2d 628); St. Paul Fire &c. Ins. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459). See Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512 (1) (160 SE2d 844). Therefore, Enumerations of error numbers 7 and 8 are without merit.
2. The question is raised as to whether or not coverage under the omnibus provision of the policy is extended where the vehicle is being used for a permitted purpose by a driver expressly prohibited from operating it. In our view the answer must be determined by the meaning of the words "actual use" as contained in the omnibus clause.
"The cardinal rule of construction [of contracts] is to ascertain the intention of the parties." Code § 20-702. "Words which admit of a more extensive or more restrictive signification must be taken in that sense which will best effectuate what it is reasonable to suppose was the real intention of the parties." 17 AmJur2d 639, § 247.
Initially, we see no distinction between the words "actual use" and "use." "The omnibus clause requirement that the `actual use' of the automobile must be with the permission of the named insured has not been a matter of particular discussion in the great majority of the cases ... and it appears that the courts ordinarily have not regarded that term, as distinguished from the word `use' as being one of special signficance." 4 ALR3rd 29, § 3 (a).
The word "use" has two meanings which are pertinent to this inquiry. In one sense it relates to the operation of the vehicle. In the other sense it relates to the purpose served by the vehicle. Appellee contends that the policy requires permission of the named insured in both senses before its coverage is extended. The appellant contends that the policy only requires permission for the purpose to be served.
We hold that the contention of the appellant is correct. The policy, among other things, insures against obligations arising from the negligent or unlawful operation of the described vehicle. Under appellee's contention, if the named insured permitted the use of the vehicle and at the same time prohibited its negligent *490 or unlawful operation, it would defeat the very purpose of the policy. Therefore, the "actual use" of the vehicle within the meaning of the policy cannot reasonably relate to the particular manner of its operation. At most it could relate only to whether or not permission to operate the vehicle had been given. And even this would have no application to the first permittee who had been given permission to use the vehicle for a particular purpose since such authorization necessarily implies permission to operate the vehicle. Furthermore, the policy provides: "The purposes for which the automobile is to be used are `business and pleasure.'" This indicates to us that the policy is concerned with the purpose to be served by the vehicle and not its operation. If the policy intended that "actual use" included the operation of the vehicle, it could have stated so plainly.
As was said in Maryland Casualty Co. v. Marshbank, 226 F2d 637, 639, "As the basis for a contrary conclusion the plaintiff seeks to read the term `use of the automobile' as contained in the policy definition as the equivalent of `operation of the automobile' and on this premise it argues that Marshbank did not give permission to Charles to operate his automobile. We think, however, that the premise is unsound and that the plaintiff is attempting to create an ambiguity in the language of the policy definition in order by construction to resolve it in its favor. To us the language of the clause seems so clear as to require no construction. The fallacy in the plaintiff's position is that the words `use' and `operation,' which it seeks to equate as synonymous, are in this setting words of quite different meaning. For the `use' of an automobile by an individual involves its employment for some purpose or object of the user while its `operation' by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another."
In Persellin v. State Automobile Ins. Assn., 75 N. D. 716, 721 (32 NW2d 644), it was stated: "In addition to the named insured, it [the policy] makes both persons using the automobile and persons responsible for the use thereof insured persons, if *491 but one condition be met. That condition is that the actual use of the automobile be with permission of the named insured. There is no condition that the driving or operation of the car must be with the permission of the named insured, and no condition that a person, other than the user ... must have the permission of the named insured." This statement was approved in Loffler v. Boston Ins. Co. (Mun. Ct. App. D. C.) (120 A2d 691) where it was also said: "In the case before us it seems clear that the car was being used by the insured's son for the very purpose for which permission had been granted. He did not, by the mere act of turning the wheel over to his companion, convert the automobile to a different use... While it is true a car cannot be operated without being used, the converse is not true." Baesler v. Globe Indemnity Co., 33 N. J. 148 (162 A2d 854); Hardware Mutual Casualty Co. v. Mitnick, 180 Md. 604 (26 A2d 393).
"The `general rule' that a permittee may not allow a third party to `use' the named insured's car has generally been held not to preclude recovery under the omnibus clause where (1) the original permittee is riding in the car with the second permittee at the time of the accident, or (2) the second permittee, in using the vehicle, is serving some purpose of the original permittee. The courts generally reason that under such circumstances the second permittee is `operating' the car for the `use' of the first permittee and that such `use' is within the coverage of the omnibus clause. While some courts apparently would limit this qualification of the general rule to situations where the named insured has not specifically forbidden driving by a third person, it is more generally held that operation by a third person under such circumstances falls within the protection of the omnibus clause even where such operation is specifically forbidden by the named insured." 7 AmJur2d 435, § 117.
"The omnibus clause has been held to cover the liability of an original permittee arising from the operation of the insured automobile by another with his consent, even though the named insured prohibited him from allowing anyone else to drive, where the use to which the car was being put was within the scope of the initial permission and the first permittee was *492 riding in the car or its operation by the second permittee was for his benefit or advantage." 4 A.L.R. 3rd 41, § 6 (b), 4 ALR3d 72, § 12 (b).
We conclude that the "actual use" contemplated and intended by the policy refers only to the purpose to be served and not the operation of the vehicle.
3. The pleadings and the evidence raise genuine issues of material fact as to whether or not the named insured or his spouse expressly or impliedly had granted any permission to Williams or Carter to use the vehicle and if so whether it was being used within such permission at the time of the collision. Accordingly, the trial court erred in granting the motion for summary judgment and in issuing a permanent injunction.
Judgment affirmed in part; reversed in part. All the Justices concur, except Mobley and Frankum, JJ., who dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353090/ | 118 Ga. App. 235 (1968)
162 S.E.2d 911
ZAPPA et al.
v.
ALLSTATE INSURANCE COMPANY.
43332.
Court of Appeals of Georgia.
Argued January 8, 1968.
Decided July 11, 1968.
Rehearing Denied July 31, 1968.
Preston L. Holland, for appellants.
Gambrell, Russell, Moye & Killorin, Edward W. Killorin, David A. Handley, for appellee.
WHITMAN, Judge.
1. This case is a suit on a policy of insurance providing protection to plaintiffs' home against loss by fire and providing additional living expenses in such event.
This court must apply the new rules of the Civil Practice Act regardless of when the judgment was entered below. Hill v. Willis, 224 Ga. 263 (1) (161 SE2d 281). Accordingly, although the trial court below sustained both a general demurrer to the complaint and a motion to dismiss for failure to state a claim (which order plaintiffs enumerate as error), we must review the complaint having regard only to whether the motion to dismiss was properly sustained, i.e., whether the complaint states a claim for which relief may be granted. When the sufficiency of a complaint is questioned, the new rules require that it be construed in the light most favorable to plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260).
The complaint as amended alleges that plaintiffs' home was insured against fire by the defendant and that a fire loss occurred for which the defendant had denied liability. This is a claim on which some relief may be granted.
2. Defendant points out that the policy, which is attached as an exhibit, provides that no action can be brought unless commenced within twelve months next after inception of the loss. Parties may contract for and will be bound by such a provision. Underwriters' Agency v. Sutherlin, 55 Ga. 266. But there may be circumstances in which a party will be found to have waived or be estopped to assert such a provision. See General Ins. Co. of America v. Lee Chocolate Co., 97 Ga. App. 588 (103 SE2d 632), and cases cited.
If plaintiffs have no such grounds, then such could be made to appear by motion for summary judgment. "When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this section, must set *236 forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Code Ann. § 81A-156 (e) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238).
Judgment reversed. Felton, C. J., and Eberhardt, J., concur.
ON MOTION FOR REHEARING.
The motion for rehearing by Allstate Insurance Company, appellee, is predicated on two grounds; first, that this court erroneously "applied the liberal pleading rules of the new Civil Practice Act as the basis for its decision in this case," and second, that the action is barred by the provision of the policy that "no suit or action on this policy shall be sustainable . . . unless commenced within twelve months next after inception of the loss."
1. It is true that the plaintiffs instituted their suit on June 14, 1967 (prior to the effective date of the Civil Practice Act), and it is also true that the trial court in its order of September 29, 1967, on defendant's renewed demurrer and on defendant's motion to dismiss, stated that "the court exercising its legal discretion is of the opinion that the application of the Civil Practice Act to the demurrers now pending in the foregoing action would not be feasible or might work an injustice." (Emphasis supplied.) Appellee's demurrers to plaintiffs' original petition were filed on July 3, 1967, prior to September 1, 1967, the effective date of the Civil Practice Act. Plaintiffs filed amendments to their petition on September 14, 1967, and September 25, 1967. Appellee filed a renewed general demurrer on September 19, 1967, and on the same date, September 19, 1967, filed its motion to dismiss the action "because the complaint, as amended, failed to state a claim against defendant upon which relief can be granted." Similar renewed demurrer and motion *237 to dismiss were filed on September 29, 1967. The order of the trial court of date September 29, 1967, sustained both the motion to dismiss and the renewed general demurrer, but by said order leave was "granted to plaintiffs to amend within ten days to meet the requirements of the policy sued upon, and in particular the requirements as to commencement of suit within twelve months after inception of the loss." Thereafter on October 5, 1967, and within said ten-day period plaintiffs filed their amendment, consisting of paragraphs numbered 38 to 44, both inclusive, all dealing with the items sued for in relation to the requirement of the policy as to commencement of suit within twelve months after inception of loss. Thereafter plaintiffs filed an additional amendment on October 16, 1967, consisting of paragraphs numbered 45 to 56, both inclusive, also relating to the alleged inception date of the losses sued for. On October 20, 1967, appellee as defendant filed its renewed general demurrer, and also separate renewal of its motion to dismiss "because the complaint, as amended, fails to state a claim against defendant upon which relief can be granted."
The original general demurrer of the defendant was on the ground that plaintiffs' petition failed to set forth a cause of action against the defendant. Defendant's renewed general demurrer filed September 19, 1967, had relation to ground 1 of its demurrers heretofore filed and insisted on its general demurrer to plaintiffs' petition to the end that justice of the cause might be fully met. A similar renewal of the general demurrer was filed on September 29, 1967, and on the same day the original motion to dismiss filed September 19, 1967, was renewed "because the complaint, as amended, fails to state a claim against defendant upon which relief can be granted." A motion to dismiss in the same language was filed by the defendant on October 12, 1967, and this was also the language of the renewal of motion to dismiss filed on October 20, 1967, as hereinabove set forth. The order of the trial court of October 20, 1967, sustained the defendant's motion to dismiss and the renewed general demurrers to plaintiffs' petition as amended, and dismissed plaintiffs' petition, and this last mentioned order is the one from which the present appeal was taken.
*238 It is to be noted that each and all of the motions to dismiss were in the language of the prescribed form of the Civil Practice Act. See Code Ann. § 81A-319. And it is further to be noted that the trial court in its order of October 20, 1967, made no reference to the former procedure referred to in Code Ann. § 81A-186, and in this connection the fact that the Civil Practice Act abolished demurrers (see Code Ann. § 81A-107 (c)) must be considered. In other words, the renewed demurrers filed after September 1, 1967, are not to be regarded as effective, and this fact was recognized by the trial court in its order of September 29, 1967, wherein, as above set forth, the court, in stating its opinion in respect of the application of the Civil Practice Act, related it only to the demurrers then pending, that is, the demurrers filed on July 3, 1967. The case of Hill v. Willis, 224 Ga. 263 (161 SE2d 281) cites and quotes from Fulton County v. Spratlin, 210 Ga. 447 (2) (80 SE2d 780), and City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759), and the City of Valdosta case makes express reference in respect of the quoted portion therefrom to the rule therein set forth as relating to a question of practice.
2. In respect to the policy limitation of twelve months for commencement of action, it should be noted that the policy also provides that the company has the option to repair property destroyed or damaged, and it is alleged by plaintiffs that the fire took place on October 21, 1964, and that the defendant elected to make the repairs occasioned by the fire loss and contracted with a contractor for that purpose, and that the contractor proceeded with the repair work, but that the repairs made were poor, faulty and inferior, and plaintiffs' petition as amended, and particularly the amendments filed October 5, 1967, and October 16, 1967, clearly indicate that the items of loss sued for are predicated upon the failure of the defendant to comply with defendant's obligation to repair which defendant elected to perform as provided in the policy.
It is also alleged that prior to November 9, 1966, plaintiffs had no knowledge that defendant was denying that the contractor was its agent in making the repairs. And it thus appears from the amended petition, quite without regard to the denial *239 of agency in defendant's answer, that there is an issue of fact as to the question of agency.
The policy also contains provisions in respect to appraisal of loss, and while the case sub judice does not involve any question of appraisal, authorities dealing with the question of appraisal in relation to the twelve-months limitation as to commencement of an action are regarded as pertinent in principle and controlling in respect to the application of the limitation provision to the obligation to make repairs upon the election of the insurer to do so; and it is well settled that the policy period of limitation is tolled by the pendency of an appraisal proceeding. Yates v. Cotton States Mut. Ins. Co., 114 Ga. App. 360 (151 SE2d 523), and cases cited. See also Beavers v. Pacific Nat. Fire Ins. Co., 85 Ga. App. 240 (68 SE2d 717). Under the allegations of the petition as amended, the policy limitation was likewise tolled in the present case and the action in this case is not barred by the twelve-months limitation provision of the policy.
The original opinion in this case is adhered to and the motion for rehearing is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353316/ | 147 S.W.3d 132 (2004)
Paul BIRDSONG, Employee-Respondent,
v.
WASTE MANAGEMENT and Insurance Company of the State of Pennsylvania, Employer/Insurer-Appellants, and
Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Additional Party-Respondent.
No. 25996.
Missouri Court of Appeals, Southern District, Division Two.
October 26, 2004.
*134 Mark Cordes, Hugh S. O'Sullivan, St. Louis, for appellants Waste Management and Ins. Co. of the State of Pennsylvania.
B. Michael Korte, St. Louis, MO, for respondent Paul Birdsong.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Becky J.W. Dias, Asst. Atty. Gen., Springfield, MO, for respondent Second Injury Fund.
JEFFREY W. BATES, Chief Judge.
Paul Birdsong ("Birdsong") sustained a compensable injury while in the employ of Waste Management ("Employer"), whose liability for workers' compensation coverage was insured by Insurance Company of the State of Pennsylvania ("Insurer"). After the Labor and Industrial Relations Commission ("Commission") made a final award of workers' compensation benefits for permanent total disability and temporary total disability to Birdsong, Employer and Insurer appealed. We affirm.
I. Statement of Facts and Procedural History
On November 18, 1998, Birdsong sustained an injury to his left shoulder and cervical spine while working for Employer. Diagnostic studies revealed he had herniated discs at the levels of C6-C7 and C7-T1. On December 9, 1998, Birdsong ceased working and began receiving temporary total disability benefits. Five days later, he underwent an anteriocervical discectomy and C6 through T1 fusion. Following this surgery, Birdsong continued to have significant health problems. These problems included: (1) impotence; (2) a neurogenic bladder; (3) a significant left shoulder soft tissue contracture; (4) neurological deficits in his left hand; (5) weakness in his left leg; (6) a gait disturbance; (7) disabling pain; and (8) depression.
On June 25, 1999, Birdsong stopped receiving temporary total disability benefits, and he returned to work. His physical limitations, however, made it difficult for him to perform his duties. Birdsong was terminated in June 2000 because Employer claimed it did not have any work within the restrictions prescribed by Birdsong's doctors. Birdsong was not able to obtain employment at any other job after he was fired by Employer.
Prior to being injured in 1998, Birdsong had suffered two other injuries which resulted in preexisting disability. In October 1987, he sustained a lumbosacral sprain injury to his low back, for which he received conservative treatment. In May 1993, a pallet fell on him while he was at work, causing an injury to his low back and left shoulder. This latter injury resulted in a workers' compensation settlement in which Birdsong was rated as having a 10% permanent partial disability to his body as a whole.
*135 In August 1999, Birdsong filed a claim for workers' compensation benefits against Employer, Insurer and the Second Injury Fund ("the Fund"). A hearing on Birdsong's workers' compensation claim was held before an administrative law judge ("ALJ") on April 8, 2002. At the hearing, Birdsong's attorney offered the deposition of Dr. Raymond Cohen, who had evaluated Birdsong at the attorney's request. Dr. Cohen's deposition was admitted in evidence by agreement of all parties.
In Dr. Cohen's deposition, he testified that Birdsong's 1998 injury caused the following injuries: (1) a cervical myelopathy secondary to cord compression from disc herniation at C6-C7 and C7-T1; (2) weakness in the left arm and lower extremities, as well as a gait disorder, due to cervical myelopathy; and (3) a cervical fusion for disc herniation at C6-C7 and C7-T1. In addition, Dr. Cohen diagnosed Birdsong as having a preexisting chronic lumbosacral strain/sprain with myalgia due to the October 1987 injury. Dr. Cohen then gave the following testimony in response to questions asked by Birdsong's attorney:
Q. Are you able, do you attribute any disability to the four diagnoses you have told us about here today and/or any preexisting conditions and, specifically, the chronic lumbosacral strain/sprain with myalgia that you have also told us about, doctor?
A. Yes.
Q. And what is, how much disability do you attribute to the various conditions?
A. At the level of his neck a sixty-five percent permanent partial disability of the whole person. A whole person disability of twenty percent due to the depression. And twenty-five percent permanent partial disability of the whole person at the level of the lumbar spine from his preexisting condition[.]
....
Q. Do you have an opinion as to whether or not those conditions, the four work related diagnoses we have been talking about combined in anyway [sic] with his preexisting lumbar disability you have just told us about?
A. Yes.
Q. What is that opinion, doctor?
A. That his preexisting lumbar condition does combine with his primary work related injury to create a greater overall disability or a synergistic affect [sic].
Q. Do you have any opinion as to the extent of Mr. Birdsong's disability as a result of that combined disability you have just told us about?
A. In that question you mean a percentage?
Q. Whether it's a percentage or what is your opinion? Let me ask it this way. Do you have an opinion about the extent of Mr. Birdsong's overall disabilities at the time of his last visit to you?
A. Yes.
Q. And what is that opinion, doctor?
A. That he's permanently and totally disabled and not capable of gainful employment due to that combination of disabilities.
Later in the deposition, Dr. Cohen was questioned by the Fund's attorney and gave the following testimony:
Q. Okay, Doctor, it's your understanding that Mr. Birdsong fully performed his duties at work prior to this accident [on November 18, 1998]; is that correct?
A. Yes.
*136 ....
Q. Okay. Well, is there any notation that he had any kind of treatment that you would not qualify as conservative to his lumbar spine?
A. No.
Q. Okay. Given all of that, doctor, and given the quite high percentage of permanent partial disability that you rate at his cervical spine, what would be your opinion if Mr. Birdsong had not earlier suffered that lumbar spine, you think you would still qualify him as permanently totally disabled?
A. Assuming he didn't have the back condition?
Q. The lumbar condition, right.
A. Sure, lumbar.
Q. I'm just trying to be specific.
A. Assuming that condition didn't exist, my answer would be yes.
Q. That he would be permanently totally disabled?
A. Yes.
During recross-examination by the attorney for the Employer/Insurer, Dr. Cohen gave the following testimony:
Q. Doctor, Mr. Blum [the Fund's attorney] had asked you some questions to assume that Mr. Birdsong had no conditions involving the lumbar spine. Mr. Birdsong did have prior injuries and conditions involving the lumbar spine; is that correct?
A. Yes.
Q. And he did receive treatment and was diagnosed with various conditions; is that correct?
A. Yes.
Q. Okay. And those conditions were permanent conditions?
A. Yes.
Q. And, doctor, your opinion today as to whether Mr. Birdsong is permanently and totally disabled, that is based on the combination of all of his injuries and disabilities; is that correct?
A. Yes.
Another issue addressed at the hearing was Birdsong's entitlement to benefits for temporary total disability. There was conflicting evidence concerning the date on which Birdsong reached maximum medical improvement from his 1998 injuries. Dr. Cohen evaluated Birdsong on January 4, 2001 and prepared a supplemental medical rating report. By agreement of the parties, this report was admitted in evidence along with Dr. Cohen's deposition. In the report, Dr. Cohen concluded Birdsong had been totally temporarily disabled from June 2000 to January 4, 2001. A different view was held by Dr. Woodward, who was assigned to treat Birdsong by Insurer. Dr. Woodward issued his final rating report on February 5, 2002. In Dr. Woodward's report, he concluded Birdsong had reached maximum medical improvement for his spinal and urological conditions as of that date.
The ALJ concluded that: (1) the accident of November 18, 1998, caused Birdsong to sustain a permanent partial disability of 45% to the body as a whole; and (2) when this accident occurred, Birdsong was suffering from a preexisting 20% permanent partial disability due to his lumbar spine injury, which constituted a hindrance or obstacle to his employment. Therefore, he awarded Birdsong benefits for permanent partial disability from both the Employer/Insurer and the Fund. The ALJ also awarded Birdsong temporary total disability benefits for the period from July 1, 2000, to February 5, 2002.
The Fund filed an application for review with the Commission, which modified the *137 ALJ's decision only as to the issue of liability for permanent total disability. The Commission adopted all other aspects of the ALJ's findings, conclusions and decision. The Commission decided the Fund was not liable to pay permanent total disability benefits to Birdsong because his 1998 injury, in and of itself, rendered him permanently and totally disabled. The Commission based its conclusion on the testimony elicited from Dr. Cohen by the Fund's attorney:
Dr. Raymond Cohen, D.O., was the only expert to offer an opinion on the issue of whether it was the last injury alone or a combination of claimant's injuries that rendered claimant permanently and totally disabled. Dr. Cohen offered two opinions on this issue. We are persuaded by Dr. Cohen's opinion [given in response to the Fund attorney's questions] because it is the only opinion in accord with the analysis provided by the Supreme Court [in Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. banc 2003)].
Therefore, the Commission concluded Employer and Insurer were responsible for paying the entire amount of permanent total disability benefits due Birdsong. Employer and Insurer, whom we collectively refer to as "Appellants" in the remainder of this opinion, filed a timely notice of appeal from the Commission's decision.
II. Standard of Review
In this appeal from a final award by the Commission, we review the findings and award of the Commission rather than those of the ALJ. McDermott v. City of Northwoods Police Dept., 103 S.W.3d 134, 137 (Mo.App.2002). With one exception, the Commission affirmed and adopted the findings and conclusions of the ALJ. Therefore, we review the findings and conclusions of the ALJ as adopted by the Commission on all issues except as to the determination of liability for permanent total disability. See Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 807 (Mo.App.2000).
An appellate court "shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; (4) That there was not sufficient, competent evidence in the record to warrant the making of the award." § 287.495.1.[1] "Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).
On appeal, "no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding." § 287.495.1. Therefore, we defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App.2003); Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451, 455-56 (Mo.App.2001). In this case, all expert testimony on medical and vocational issues was presented via deposition. When witnesses are deposed and do not testify live before the ALJ, the Commission is just as able as the ALJ to determine credibility from the written record. *138 Thorsen v. Sachs Elec. Co., 52 S.W.3d 611, 619 (Mo.App.2001).
Commission decisions that are interpretations or applications of law, on the other hand, are reviewed for correctness without deference to the Commission's judgment. Orr v. City of Springfield, 118 S.W.3d 215, 217 (Mo.App.2003); Maxon v. Leggett & Platt, 9 S.W.3d 725, 729 (Mo.App.2000). We independently review questions of law. Johnson v. Denton Construction Co., 911 S.W.2d 286, 287 (Mo. banc 1995).
III. Discussion
Appellants present two issues for decision. First, they contend the Commission erred in not holding the Fund liable to pay part of Birdsong's permanent total disability benefits. Second, they contend the Commission erred in holding them liable to pay Birdsong temporary total disability benefits through February 5, 2002.
Point IFund Liability
Appellants contend the Commission's decision that the Fund was not liable to pay any part of Birdsong's permanent total disability benefits is against the overwhelming weight of the evidence because the testimony elicited from Dr. Cohen by the Fund's attorney was "hypothetical" in nature and conflicted with Dr. Cohen's other opinions concerning the cause and extent of Birdsong's disability. We find both arguments unpersuasive.
The Fund was created by statute and permits a permanently disabled employee, in certain defined and limited circumstances, to receive benefits from both his employer and the Fund if the employee had a prior, permanent disability serious enough to constitute a hindrance or obstacle to employment. See § 287.220.1; Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App.2000). In order to decide whether the Fund has any liability, "the first determination is the degree of disability from the last injury considered alone." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. banc 2003). For this reason, "pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined." Id. If the employee's last injury in and of itself rendered the employee permanently and totally disabled, the Fund has no liability; the employer is responsible for the entire amount of compensation. Id.
Dr. Cohen was the only physician who opined that Birdsong was permanently and totally disabled. The relevant portions of Dr. Cohen's deposition testimony have been set out earlier in our opinion. As these quotations demonstrate, Dr. Cohen testified in response to questions from Birdsong's attorney and Employer's attorney that Birdsong was permanently and totally disabled based on the combination of disabilities that resulted from his 1987 and 1998 injuries. Section 287.220.1 specifically requires that, "[i]f the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself...." Id. Therefore, the first determination the Commission had to make was the degree of disability resulting from Birdsong's last injury, considered alone. Landman, 107 S.W.3d at 248.
It was entirely appropriate for the Fund's attorney to conduct his cross-examination in a manner designed to elicit testimony satisfying the statutory mandate *139 contained in § 287.220.1 and the Supreme Court's holding in Landman. The Fund attorney's cross-examination questions required Dr. Cohen to consider Birdsong's last injury in isolation and state whether this injury, in and of itself, was totally disabling. See Lockman v. Citizen's Memorial Hosp., 140 S.W.3d 214, 218 (Mo. App.2004) (first step in the analysis is to consider employer's liability in isolation and determine what degree of disability would have resulted from the last injury had there been no preexisting disability); Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App.1999) (same holding). Thus, these questions properly sought Dr. Cohen's expert medical opinion on the issue determinative of the Fund's liability, viz.: whether Birdsong was still permanently and totally disabled without considering the preexisting injury to his lumbar spine. In response to this inquiry, Dr. Cohen opined that Birdsong was still permanently and totally disabled by his last injury alone. Asking Dr. Cohen to express his opinion based upon the correct legal standard, by framing the questions to exclude consideration of a legally-irrelevant prior disability, did not render the opinion "hypothetical" so as to prevent the Commission from relying upon his answers.[2]
Appellants also argue the Commission could not rely on Dr. Cohen's testimony because it was in conflict with his other opinions. This same issue was addressed by the Eastern District in Maas v. Treasurer of the State of Missouri, 964 S.W.2d 541 (Mo.App.1998). There, Dr. Cohen determined that the claimant was permanently and totally disabled when he fell and sustained a significant spinal cord injury. Four years later, Dr. Cohen reevaluated the claimant to address Second Injury Fund liability and determined he was permanently and totally disabled due to a combination of the spinal cord injury and preexisting disabilities. Id. at 545. The Commission found that Dr. Cohen's new opinion "amounts to nothing more than stating that claimant's permanent and total disability also results from a combination of the primary work injury and his preexisting conditions. It is clear from Dr. Cohen's testimony that Mr. Maas was permanently and totally disabled as a result of the disabilities caused by [the] fall." Id. On appeal, the claimant argued that the Commission's finding was not supported by the record. The Eastern District rejected this argument because the variance in Dr. Cohen's opinions presented a question of fact for the Commission to decide:
We defer to the Commission on issues concerning credibility and weight to be *140 given to conflicting evidence and testimony. The Commission is free to disregard testimony of a witness even if no contradictory or impeaching evidence is introduced. It is in the Commission's sole discretion to determine the weight to be given expert opinions. The Commission was free to believe Dr. Cohen's 1992 opinion that the September 5, 1991 fall was the sole cause of the permanent total disability and disregard Dr. Cohen's later opinion that claimant was permanently and totally disabled due to the combination of the primary work injury and his preexisting conditions.
Id. (citations omitted).
We reach the same conclusion here. Dr. Cohen testified that: (1) Birdsong was permanently and totally disabled due to a combination of disabilities resulting from his 1987 and 1998 injuries; and (2) Birdsong was permanently and totally disabled by his last injury in 1998. The Commission believed the latter opinion, rather than the former. "The decision to accept one of two conflicting medical opinions is a question of fact for the Commission." Chatmon, 55 S.W.3d at 457. We defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony. Pavia, 118 S.W.3d at 234. Dr. Cohen's testimony constituted competent and substantial evidence upon which the Commission could rely in concluding that the Fund was not liable to pay any portion of Birdsong's permanent and total disability benefits. See Lockman, 140 S.W.3d at 218 (physician's testimony that employee's last injury, standing alone, rendered employee totally and permanently disabled constituted sufficient, substantial evidence to support the Commission's determination holding employer liable for 100% of employee's disability). Appellants' first point is denied.
Point IITemporary Total Disability Benefits
Appellants next contend the Commission's award of temporary total disability benefits to Birdsong through February 5, 2002, is against the overwhelming weight of the evidence. Appellants claim such benefits should have ended on January 4, 2001, which was the date when Dr. Cohen concluded Birdsong was permanently and totally disabled.
Temporary total disability benefits are intended to cover the claimant's healing period. Boyles v. USA Rebar Placement, Inc., 26 S.W.3d 418, 424 (Mo. App.2000). "Temporary total disability awards are owed until the claimant can find employment or the condition has reached the point of maximum medical progress." Cooper v. Medical Center of Independence, 955 S.W.2d 570, 575 (Mo.App.1997).
It is undisputed that Birdsong did not return to work after he was terminated by Employer in June 2000. There was conflicting evidence concerning the date on which Birdsong had reached the point of maximum medical progress from his 1998 injuries. In Dr. Cohen's supplemental rating report, he concluded Birdsong had been totally temporarily disabled from June 2000 to January 4, 2001. Dr. Woodward, the physician selected by Insurer to treat Birdsong, reached a different conclusion. In Dr. Woodward's final rating report, he stated Birdsong had reached maximum medical progress for his spinal and urological conditions as of February 5, 2002.
Once again, the credibility and weight of these competing expert opinions presented a question of fact for the Commission to decide. Since the Commission chose to rely upon Dr. Woodward's opinion concerning the date when Birdsong reached *141 the point of maximum medical progress, we defer to that determination. See Chatmon, 55 S.W.3d at 459. The Commission's award of temporary total disability benefits to Birdsong through February 5, 2002, is supported by competent and substantial evidence. Appellants' second point is denied.
IV. Decision
The Commission's factual findings that Birdsong was permanently and totally disabled by his 1998 injuries alone and that he is entitled to temporary total disability benefits through February 5, 2002, are supported by competent and substantial evidence. The Supreme Court was careful to point out in Hampton that it would be the "rare case when the award is contrary to the overwhelming weight of the evidence." Hampton, 121 S.W.3d at 223. After considering the whole record, we conclude this case does not fall within that category. Therefore, the Commission's award is affirmed.
PARRISH, P.J., and SHRUM, J., Concur.
NOTES
[1] All references to statutes are to RSMo (2000).
[2] A medical expert is routinely required to correctly meld medical and legal concepts in his testimony in order to translate "a medical definition into a purely legal standard capable of resolving particular cases." Bass v. Nooney Co., 646 S.W.2d 765, 781 n. 4 (Mo. banc 1983). For example, in a medical malpractice case, an expert must express his opinion with reference to the correct legal standard in order for his testimony to be relevant and admissible. See, e.g., Swope v. Printz, 468 S.W.2d 34, 40 (Mo.1971) (an expert must incorporate the legal standard of care into his testimony to show that it is based upon this objective legal test, rather than the expert's own undisclosed subjective conception of acceptable medical standards); Ladish v. Gordon, 879 S.W.2d 623, 634-35 (Mo.App.1994) (generally, it must appear somewhere in the context of the expert's testimony that the proper objective legal standard is the standard being employed); Dine v. Williams, 830 S.W.2d 453, 456 (Mo.App.1992) (same holding). We believe the same is true here. The Fund's liability could not be determined until the Commission assessed "the disability resulting from the last injury considered alone and of itself...." § 287.220.1. The only expert testimony satisfying this requirement was elicited from Dr. Cohen by the Fund's attorney. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352925/ | 162 S.E.2d 592 (1968)
2 N.C. App. 219
Barbara H. WILLIS
v.
Abram L. WILLIS.
No. 68DC192.
Court of Appeals of North Carolina.
August 14, 1968.
*593 Gus Davis, Jr., Morehead City, for defendant appellant.
Hofler, Mount & White, by Richard M. Hutson, II, Durham, for plaintiff appellee.
MORRIS, Judge.
The court found as facts that defendant is a single, thirty-two year old man experienced in and trained as a paint foreman; that he has proven his ability to earn in excess of $90.00 per week in his trade as established by his former employers; that he has no dependents other than his minor daughter, lives with his father who is in the retail seafood business at Salter Path, N. C.; that defendant is not seeking employment but is apparently assisting his father in his business for which he is paid an undisclosed amount; that defendant apparently has an interest in a 73 foot oil screw named "Delores", owned by his father, as evidence disclosed he is personally responsible for part of its financing; that defendant is the owner of and in possession of a 1966 Ford automobile upon which installment payments are $91.31 per month.
*594 Upon these facts the court further found that defendant had willfully failed to comply with the terms of the 23 December 1965 order and "is in contempt of this court". Defendant was ordered to pay the arrearage of $420.00 by 29 February 1968, and if he failed to so do, "the Sheriff of Carteret County is ordered to take the defendant, Abram L. Willis, into custody and deliver him to the Sheriff of Durham County to be placed in the common jail of Durham County until such time as defendant has purged himself of his contempt."
"The findings of fact by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence, Royal Cotton Mill Co. v. Textile Workers Union, 234 N.C. 545, 67 S.E.2d 755, and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment. In re Adams, 218 N.C. 379, 11 S.E.2d 163." Rose's Stores v. Tarrytown Center, 270 N.C. 206, 211, 154 S.E.2d 313, 317.
In order to hold defendant in contempt for failure to pay the sums required by the 23 December 1965 order, there must be particular findings that defendant possessed the means to comply with the order during the time of his alleged delinquency. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867. This is so because a failure to abide by the terms of a court order cannot be punished by contempt proceedings unless the failure is willful, which imports knowledge and a stubborn resistance. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391.
In Mauney v. Mauney, supra, the facts found were these:
"(T)he defendant `is a healthy, able bodied man, 55 years old, presently employed in the leasing of golf carts and has been so employed for many months; that he owns and is the operator of a Thunderbird automobile; that he has not been in ill health or incapacitated since the date of Judge Latham's order entered on the 5th day of October, 1964; that the defendant has the ability to earn good wages in that he is a trained and able salesman, and is experienced in the restaurant business; and has been continuously employed since the 5th day of October, 1964; that since October 5, 1964, the defendant has not made any motion to modify or reduce the support payments.'"
Our Supreme Court held that these findings were not sufficient to support the conclusion that defendant's conduct was willful and deliberate and in contempt and said "* * * the court must find not only failure to comply but that the defendant presently possesses the means to comply."
For the same reasons the judgment here is deficient and must be set aside and the case remanded for further hearing and findings of fact.
Error and remanded.
CAMPBELL and BRITT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352930/ | 224 Ga. 422 (1968)
162 S.E.2d 319
WOOD
v.
PIEDMONT FEDERAL SAVINGS & LOAN ASSOCIATION OF DEKALB COUNTY.
24688.
Supreme Court of Georgia.
Argued June 10, 1968.
Decided June 20, 1968.
E. T. Hendon, Jr., J. W. Moulton, G. Hughel Harrison, for appellant.
Ware, Sterne & Griffin, Robert F. Lyle, for appellee.
ALMAND, Presiding Justice.
This appeal is from an order granting a summary judgment in an action seeking equitable and legal relief.
Roy R. Wood, in his petition against Piedmont Federal Savings & Loan Association, made the following allegations. In November of 1965 Roy R. Wood, plaintiff, purchased a described tract of land in Gwinnett County, Georgia, subject to a deed to secure an indebtedness to the defendant, Piedmont Federal Savings & Loan Association. Subsequent to the purchase of the land a named insurance company issued to plaintiff a mortgage accident and health insurance policy to cover payments on the loan in the event of physical disability to the plaintiff. The defendant acted as agent for the insurance company in obtaining the application and in collecting the insurance premiums. Subsequently, plaintiff became disabled, and the defendant caused the security deed to be foreclosed and the land sold with the defendant purchasing the land at the sale. Further, plaintiff alleged that no payment on the loan was due at the time of foreclosure that was not covered by the insurance contract.
Plaintiff's prayers were that the foreclosure deed to the defendant be canceled and that the defendant obtain from the insurance company the monthly payments under the policy. In two other counts of the petition, plaintiff sought to recover damages and attorney's fees. By amendment plaintiff tendered into court the amount past due on the loan.
In its answer the defendant denied that it was an agent of the insurance company, but alleged that it held a master policy *423 issued by the company for the benefit of any borrowers from the defendant who wished to have such mortgage insurance. The defendant assisted the plaintiff in making his claim under the policy, but the insurance company in December of 1966 denied liability on his claim. The plaintiff became in arrears in the payment of his monthly notes, and after repeated demands for payment, the property was sold at public outcry on March 7, 1967, under the provisions of the security deed with the defendant purchasing said property.
On December 13, 1967, an order was entered dissolving the temporary restraining order and declaring the petition did not set forth a cause of action for temporary injunction.
On February 15, 1968, the defendant filed its motion for summary judgment. On the hearing of the motion for summary judgment, said motion was supported by the defendant's affidavits and the allegations of its answer. The plaintiff did not present any evidence by affidavit or otherwise on the hearing.
The court properly granted the motion for a summary judgment. Under the evidence on the hearing of the motion, no material issue of fact was left in the case. Even if the plaintiff assumed that the defendant in issuing the insurance policy was the agent of the insurer, the undisputed evidence is that in December of 1966 the plaintiff was advised by the insurance company that it would not make any payments under his policy because his disability was not covered by the policy. With this knowledge, plaintiff made no effort to pay the monthly notes for the next two months. Furthermore, there is no allegation in the plaintiff's petition as amended that he tendered to the defendant prior to the institution of this action the amount past due on the loan. The absence of such an allegation rendered the action seeking to set aside the foreclosure sale fatally defective. Harton v. Federal Land Bank of Columbia, 187 Ga. 700 (2 SE2d 62); Williams v. Fouche, 157 Ga. 227 (1) (121 S.E. 217).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352941/ | 162 S.E.2d 589 (1968)
2 N.C. App. 162
Paul J. MASSEY, Administrator of the Estate of Paul W. Massey, Deceased
v.
Onie Adam CATES.
No. 68SC148.
Court of Appeals of North Carolina.
August 14, 1968.
*591 Gwyn & Gwyn by Melzer A. Morgan, Jr., Reidsville, for plaintiff appellant.
W. T. Combs, Jr., Leaksville, for defendant appellee.
MORRIS, Judge.
Plaintiff is proceeding under G.S. § 1-363 which provides:
"The court or judge having jurisdiction over the appointment of receivers may also by order in like manner, and with like authority, appoint a receiver in proceedings under this article of the property of the judgment debtor, whether subject or not to be sold under execution, except the homestead and personal property exemptions. But before the appointment of the receiver, the court or judge shall ascertain if practicable, by the oath of the party or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if so, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to the receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The title of the receiver relates back to the service of the restraining order, herein provided for."
This statute is included in Article 31 of Chapter 1 of the General Statutes entitled "Supplemental Proceedings". Article 31 provides for supplemental proceedings, equitable in nature, after execution against a judgment debtor is returned unsatisfied to aid creditors to reach property of every kind subject to the payment of debts which cannot be reached by the ordinary process of execution. These proceedings are available only after execution is attempted.
Here, plaintiff had execution issued. It was returned unsatisfied. Plaintiff then proceeded under G.S. § 1-352 and obtained an order to examine the defendant with respect to his property. Based on information obtained from this examination of defendant under oath, plaintiff moved for the appointment of a receiver as provided by statute.
The only question presented here is whether plaintiff's motion is sufficient to withstand a demurrer.
The statute with which we are now concerned was before the Court in Coates v. Wilkes, 92 N.C. 376. There has been no amendment or change in phraseology since that time. There the plaintiff had caused execution to issue, it was returned unsatisfied, and plaintiff obtained an order to examine defendant. Thereafter plaintiff moved for the appointment of a receiver, the motion was denied, and plaintiff appealed. In discussing the evidence sufficient to warrant the appointment of a receiver, the Court said:
"Indeed, a receiver is appointed almost as of course, where it appears that the judgment debtor has, or probably has, property that ought to be so subjected to the satisfaction of the judgment, after the return of the execution unsatisfied. The receivership operates and reaches out in every direction as an equitable execution, and it is the business of the receiver, under the superintendence of the court, to make it effectual by all proper means."
In discussing plaintiff's allegation of defendant's disposition of property to prevent its application to the payment of the judgment, the Court noted:
"If there was evidence tending strongly to show such a disposition of it, or that he was refusing, covertly or otherwise, to apply his property to the judgment, this was sufficient to warrant the appointment of a receiver, to the end that he might take such steps and, if need be, bring such actions as would enable him to secure and recover any property of the defendant so conveyed or withheld *592 by him, to be applied to the judgment of the plaintiff. To warrant the appointment of a receiver, it need not appear, certainly or conclusively, that the defendant has property that he ought to apply to the judgmentif there is evidence tending in a reasonable degree to show that he probably has such property, this is sufficient; or if it appears probable that he has made a fraudulent conveyance of his property as to his creditors, this is sufficient."
Plaintiff has alleged that defendant had testified under oath that he had transferred Duke Power Company stock formerly registered in his name to his wife, had allowed automobiles owned by him to be repossessed so that any automobiles could be registered in his wife's name; that all funds on deposit to his name had been withdrawn and all bank accounts placed in his wife's name; that he was through payroll deductions accumulating Duke Power Company stock and cash value of life insurance; that he did not intend to pay the balance due on the judgment. The motion sufficiently alleges that defendant probably has property which cannot be reached by execution and that he has probably transferred property to defraud this judgment creditor. The demurrer should not have been sustained.
Plaintiff has chosen to proceed under G.S. § 1-363 in preference to G.S. § 1-353. This is his right. We find no authority to support defendant's contention that plaintiff must proceed under G.S. § 1-353 before he can apply for a receiver under G.S. § 1-363 nor has defendant cited any authority for this position. It may be that defendant has no property over and above his exemptions allowed by law which can be applied to the satisfaction of the judgment. If he does have such property, it should be applied to the payment of the judgment. If he does not, this fact ought to be made to appear, with reasonable certainty, to the satisfaction of the holder of the judgment. This the receiver, if appointed, will proceed to determine. "The purpose of the law in such proceedings is to afford the largest and most thorough means of scrutiny, legal and equitable in their character, in reaching such property as the debtor has, that ought justly to go to the discharge of the debt his creditor has against him." Coates v. Wilkes, supra, at 381.
For the reasons herein stated, the ruling of the trial court sustaining the demurrer is
Reversed.
CAMPBELL and BRITT, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352932/ | 117 Ga. App. 862 (1968)
162 S.E.2d 307
BOLDEN
v.
BARNES.
43305.
Court of Appeals of Georgia.
Argued January 8, 1968.
Decided May 28, 1968.
Rehearing Denied June 12, 1968.
Pittman & Kinney, John T. Avrett, for appellant.
Cook & Palmour, A. Cecil Palmour, Morgan & Garner, for appellee.
WHITMAN, Judge.
We are called upon here to decide whether the trial court erred in refusing to grant defendant's motion for summary judgment in an action brought against him by plaintiff for the wrongful death of her husband.
The plaintiff's petition alleged that her husband took his pick-up truck to defendant's place of business for repairs; that defendant permitted the truck to remain in close proximity to a red-hot stove after disconnecting the truck's fuel lines; that defendant's employee, while working on the left side of the truck, the same side where the stove was located, also had the air hose on that side blowing air through the gas line; that defendant's employee failed to warn plaintiff's husband that he was blowing air through that part of the gas line running into the gas tank and failed to warn him of the potential danger of doing so; and that defendant's employee, while watching plaintiff's husband proceed to and reach out to remove the cap from the truck's gas tank, did not warn him that he had built up pressure in the gas tank with the air hose.
The petition alleged that when plaintiff's husband removed the cap from the gas tank in which a tremendous pressure had been created by the air hose, the pressure caused the gasoline from the gas tank to gush out upon plaintiff's husband's face and body, causing him to involuntarily and instinctively step backward against the hot stove which ignited his clothing and body from which he suffered severe burns resulting in his death.
In his answer defendant admitted that his employee was blowing air into the line with an air hose as decedent walked toward the back of the truck, but denied that the employee saw plaintiff's husband as he removed the cap from the tank. Defendant further answered the petition averring that he and his employee were guilty of no negligence; that decedent knew that defendant's employee had squirted air into the gas lines and that the tank contained pressure; and that decedent died as a result of his own negligence and failure to exercise ordinary care for his own safety in removing the gas cap while the tank contained pressure; but that if decedent's death did not result from his own negligence or failure to exercise ordinary care for his own safety, then it was the result of an accident.
*863 The evidence presented for determination of the motion consisted of the depositions and affidavits of the defendant, Randall Bolden, and his employee, Amos Bolden. The deposition of the plaintiff was also before the court.
The evidence was that decedent could not keep the engine in his truck running and had defendant tow it to the station. It was then pushed inside the station and the doors closed behind it because the day was very cold. The truck was placed within 6 or 8 feet of a kerosene heater. The decedent indicated that he thought the trouble was in the fuel pump and he, with his own tools and working by himself, disconnected the fuel line at the fuel pump. He then came and told defendant's employee that no gas would come out. The employee told him that he would be there in a minute and blow out the gas line, whereupon he did come in and with the compressed air hose blew two short "blasts" of air into the fuel line back towards the tank. He did this, he testified, to see if he could free the line and get the gas to come out. He further testified that the decedent was standing there beside him when he started putting air through the fuel line; that while he, the employee, was "hunkered" down under the hood applying the air, the decedent was standing beside him, but before he could straighten up he heard somebody holler and looked around to see what had happened; that the first thing he saw was the decedent with his hands over his face, apparently blinded with gas in his eyes, and then decedent ran over toward the heater and actually hit the stove and rocked it and caught fire.
The defendant testified that he was in an adjacent room, the office, checking a battery being charged; that he noticed drops of gas come into the room and looked to see where it was coming from and could see it coming out of the filler neck to the truck's gas tank; that quite a bit came out and everything ignited almost instantly; but that he did not see what had happened to the decedent as he was obscured from his view by a corner.
Both the defendant and his employee testified that they did not see the decedent remove the cap. Held:
There is no issue of fact as to how the death of plaintiff's husband resulted. The crucial issue which still remains however is whether such facts constitute negligence on the part of the defendant by and through his employee.
*864 "Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for a jury, and a court should not take the place of a jury in solving them except in plain and indisputable cases." Peck v. Baker, 76 Ga. App. 588 (1a) (46 SE2d 751). "`Negligence is predicated on what should have been anticipated rather than on what happened.' Misenhamer v. Pharr, 99 Ga. App. 163 (2) (107 SE2d 875); Ely v. Barbizon Towers, Inc., 101 Ga. App. 872, 877 (115 SE2d 616). And one is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable. Whitaker v. Jones, McDougald &c. Co., 69 Ga. App. 711, 716 (26 SE2d 545)." Moses v. Chapman, 113 Ga. App. 845 (1) (149 SE2d 850).
The evidence shows that the cause of decedent's death was his removal of the gas cap simultaneously with the application of compressed air to the fuel line by the defendant's employee which caused gasoline to spew out at the cap onto the decedent and into his eyes, causing him to retreat backwards into the kerosene heater and ignite. Both the defedant and his employee testified they did not see decedent about to remove the cap. This being so, no duty arose to warn against it. Should they have anticipated or foreseen that decedent would go back and remove the cap at the time he did? We think clearly and indisputably that it was not reasonably foreseeable and, therefore, no negligence on the part of the defendant appears.
The defendant's motion for summary judgment should have been sustained.
Judgment reversed. Felton, C. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352946/ | 224 Ga. 417 (1968)
162 S.E.2d 385
DURDEN
v.
DURDEN.
24657.
Supreme Court of Georgia.
Submitted May 14, 1968.
Decided June 20, 1968.
*419 Adams, O'Neal, Steele, Thornton & Hemingway, Kice H. Stone, for appellant.
Abe Crosby, Jr., Gerald S. Mullis, for appellee.
FRANKUM, Justice.
1. The mother of a minor child brought a proceeding in the nature of a habeas corpus against the father seeking to have the custody of the child, whose custody had been awarded to the father in a divorce decree awarded to her. The alleged basis of the plaintiff's complaint was that since the rendition of the divorce decree there had been a change in conditions and circumstances relating to the defendant which materially and directly affect the general welfare of the child. The complaint was brought in the Superior Court of Bibb County and was by the judge of that court referred to the Juvenile Court of Bibb County for the determination of all issues as to the custody of said child. The judge of the juvenile court, upon hearing the matter, rendered a judgment remanding the child to the custody of the father. The appeal here is from that judgment.
2. The first ground of enumerated error contends that the trial judge erred in dismissing the petitioner's complaint. However the record shows that the written order appealed from did not dismiss the complaint and therefore this ground of enumerated error is without merit.
3. In the second ground of enumerated error complaint is made that the trial judge erred in ruling that a person having custody of a minor child under a court decree has the legal right to forfeit such custody to a stranger to the decree. The evidence in the case shows that the father is a practicing physician in Bibb County, Georgia. His parents reside in Twiggs County, Georgia, and he contended that he maintained his legal residence there. (There was a plea to the jurisdiction which was overruled. No exception to that judgment is before this court.) For the sake of convenience and in order to afford proper care for the child in question, the defendant arranged with his parents for the child to stay in their home under their immediate supervision. While the father does not contribute any definite amount of money to the support of the child, the trial court was authorized to find that he does in fact contribute to the child's support in various ways, and that he had not abandoned his parental responsibilities. While at the time of the divorce decree in March of 1967, he was spending some 3 or 4 nights a week with the child in his parents' home he was at the time of the trial in this case *418 spending only 3 or 4 nights a month in his parents' home with the child. Under these facts the trial court was authorized to find that the custody by the defendant's parents was in fact his custody under the principles enunciated in such cases as Miller v. Wallace, 76 Ga. 479 (2 ASR 48), and Watson v. Padgett, 202 Ga. 606 (44 SE2d 232). Nothing appearing in the cases of Hill v. Rivers, 200 Ga. 354 (37 SE2d 286) and in Sessions v. Oliver, 204 Ga. 425 (50 SE2d 54), requires a decision contrary to that which we here make.
4. Viewed as a whole, there was no real conflict in the evidence. While the trial judge was authorized to find, as he undoubtedly did find, that the defendant, subsequent to the award of custody of the child to him had been guilty of immoral conduct, the evidence showed that this took place in Bibb County, and not in the presence of, or with the knowledge of, the child, who was at the home of its grandparents in Twiggs County. There was no evidence that the environment and atmosphere in the home of the defendant's parents was not good or that the child was mistreated or not well cared for in that home. It is, of course, fundamental in cases such as this, that the award of custody of children in a divorce decree is binding upon the parties thereto upon the principles of res judicata, under the facts then existing, and that upon the hearing on an application in the nature of a habeas corpus seeking a change of the custody of the child based on a change in the conditions affecting the welfare of the child, that the trial judge is vested with a sound legal discretion which will not be disturbed by the appellate court unless he has clearly abused it. Code Ann. § 74-107; Gaughf v. Gaughf, 214 Ga. 483 (105 SE2d 314); Thompson v. Thompson, 214 Ga. 618 (106 SE2d 788); Mallette v. Mallette, 220 Ga. 401, 404 (3) (139 SE2d 322). It cannot be said that the trial judge abused his discretion in this case.
5. Since the portion of the judgment which undertook to define the visitation rights of the petitioner, if it amounted to a modification of the divorce decree as to her right to visit her child, was favorable to the appellant, she will not be heard to complain of it in this appeal. Jackson v. Davis, 203 Ga. 39 (45 SE2d 278).
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352955/ | 498 P.2d 813 (1972)
IN THE MATTER OF CAROL WIESE, a Child.
STATE of Oregon ex rel. Juvenile Department of Clackamas County, Respondent,
v.
David WIESE and Neva Wiese, Husband and Wife, Appellants.
Court of Appeals of Oregon, Department 2.
Submitted on Record and Briefs June 21, 1972.
Decided July 7, 1972.
Richard C. Helgeson, Oregon City, for appellants.
Roger Rook, Dist. Atty., and Donald D. Welch, Special Deputy Dist. Atty., Oregon City, for respondent.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
*814 FOLEY, Judge.
This is an appeal from an order which terminated parental rights under ORS 419.523(2) (a)[1] on the grounds that:
"* * * 1) Said child was made a ward of the above entitled Court on June 5, 1970, based upon the findings of the Court that the parents of said child have failed to provide her with the care, guidance and protection necessary for her physical and emotional well-being and have subjected her to cruelty; 2). The parents of said child are unfit by reason of their conduct or condition which is seriously detrimental to said child in that the parents are physically and mentally incapable of providing adequate care for said child because they function at a low intellectual level * * *.
"* * *."
The child has been in the custody of juvenile authorities since February 1970 and in foster care since June 5, 1970, when the juvenile court took jurisdiction after a hearing on a petition alleging cruelty by the parents. The petition was filed after the family doctor made a report of possible child abuse. Investigation disclosed that the child had a pinworm infection, diaper rash, and four large bruised areas. The bruises on the face were several days old and had been caused by a fall; bruises in the groin area were due to the infection; the father admitted he had inflicted the bruise on her arm; and the cause of the fourth bruise remained unexplained. A letter from the physician stated:
"* * *
"Although the evidence on examination indicated mistreatment, I do not believe these parents are malicious child beaters. They do have gross misconceptions of the type and amount of discipline necessary. If it is possible to observe the parents and check on them at very frequent intervals, I feel that Carol Wiese could be returned to her parents.
"* * *."
The child was described as well nourished on the date she was admitted to the hospital and had been receiving regular medical care. The physician testified at the hearing on the petition that he had seen her every two or three weeks, sometimes as a patient, and at other times when the mother brought the baby sister for treatment.
In contrast, the home environment appears to have been very poor. Welfare workers described the house as filthy and cluttered. In an effort to remedy the conditions in the home the court made the child a ward of the court and ordered her placed in foster care, took temporary wardship of the baby sister who remained in the home, and requested homemaker assistance for the family. During the time that the homemaker visited the home the mother was able to manage better, but when the homemaker stopped going, conditions reverted to what they had been.
Both parents received psychological evaluation. The father's intelligence was described as "dull normal" and the mother's as "* * * in the lower level of what is called the educable range." Experts testified that the parents are unable to provide consistent guidance to the child and were pessimistic that the situation would improve because the parents did not seem to have enough motivation to change their way of life.
We conclude that this case is governed by the Oregon Supreme Court's decision in State v. McMaster, 92 Adv.Sh. 1563, 259 Or. 291, 486 P.2d 567 (1971), which also involved a mentally retarded *815 parent, an erratic life style, and poverty. There the Supreme Court said:
"* * * The best interests of the child are paramount; however, the courts cannot sever the McMasters' parental rights when many thousands of children are being raised under basically the same circumstances as this child. The legislature had in mind conduct substantially departing from the norm and unfortunately for our children the McMaster's conduct is not such a departure." 92 Adv.Sh. at 1574-75, 486 P.2d at 573.
The law, however, does not allow the courts to sever parental rights where the parents are able to care for their children within what has been described as the societal norm, even though "transiency and incapacity, poverty and instability" pervade the relationship. State v. McMaster, supra. The trial period with the homemaker proved that the parents were able to care for the baby sister with outside assistance. The case worker predicted that if the child concerned here were to return to the home, the burden of caring for both children would be overwhelming to the mother; but we have no way of knowing whether this is true at this time.
The state distinguishes this case from McMaster on the theory that we are concerned here not with conduct but with an unalterable condition of the parties. Relying on this theory, it urges us to apply the reasoning in State v. Blum, 1 Or. App. 409, 463 P.2d 367 (1970). But Blum concerned a parent with severe and incurable mental illness who would never be able to provide even physical care for her child. The Wieses' situation results from a combination of conduct (failure to provide as healthful an environment as possible under the circumstances of inadequate housing) and conditions (inherent inability to take advantage of the resources that are available in order to stimulate their child to develop into a well-rounded person capable of fulfilling her utmost potential).[2]
The evidence presented here does not clearly satisfy the first criteria of Blum:
"* * * [T]hat the parent is presently unable to supply physical and emotional care for the child (if necessary, with the aid of social agencies available) * * *." 1 Or. App. at 417, 463 P.2d at 371.
On the basis of McMaster we conclude that the trial court erred in terminating the parental rights.
Reversed.
NOTES
[1] ORS 419.523(2) (a):
"(2) The rights of the parent or parents may be terminated as provided in subsection (1) of this section if the court finds that the parent or parents:
"(a) Are unfit by reason of conduct or condition seriously detrimental to the child * * *."
[2] The situation does not argue for the award of custody to the parents. To quote again from McMaster:
"However, a decision in favor of the natural parents in this termination proceeding does not result in the child being transferred to the custody of her natural parents. We are only deciding that the McMaster's parental rights cannot be terminated at this time. The juvenile court must determine whether custody should remain with the foster parents. If it does, we realize that the foster parents may be kept in a state of anxiety never knowing when the child might be taken from their custody. Nevertheless, we are of the opinion that the natural parents' rights cannot now be terminated." 92 Adv.Sh. at 1574, 486 P.2d at 572. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352958/ | 224 Ga. 358 (1968)
162 S.E.2d 395
HOGAN
v.
ATKINS.
24632.
Supreme Court of Georgia.
Argued May 14, 1968.
Decided May 23, 1968.
John H. Ruffin, Jr., for appellant.
George Hains, Solicitor General, E. Freeman Leverett, for appellee.
ALMAND, Presiding Justice.
The main question presented in this habeas corpus case is whether Code § 26-2701, under which the appellant was convicted, is unconstitutional for vagueness as violative of the due process of law clause of the Fourteenth Amendment to the United States Constitution.
Code § 26-2701 provides: "It shall be unlawful for any person to make or mend, or cause to be made or mended, or to have in his possession in the day or nighttime, any engine, machine, jimmy, tool, false key, pick-lock, bit, nippers, nitroglycerin, dynamite cap, dynamite, or other explosive, fuse, steel wedges, drills, tap-pins, or other implements or things adapted, designed, or commonly used for the commission of burglary, larceny, safecracking, or other crime, with the intent to use or employ or allow the same to be used or employed in the commission of a crime, or knowing that the same are intended to be so used. Any person guilty of a violation of this section shall be deemed guilty of a felony, and shall, upon conviction thereof, be punished *359 by imprisonment in the penitentiary for a term of not less than three years nor more than 10 years."
Appellant contends that Code § 26-2701 makes possession alone the exclusive source of one's guilt and does not avail an opportunity to explain possession. With these contentions, we cannot agree. Very clearly, Code § 26-2701 requires two elements for conviction, viz.: (1) possession of the tools and implements and (2) intent to use these tools and implements in the commission of a crime or knowing that the same are intended to be so used. With proof of both of these elements being essential to a conviction, the appellant's contentions are without merit.
"A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variation in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded." Boyce Motor Lines v. United States, 342 U.S. 337, 340 (72 SC 329, 96 LE 367).
"Statutory language in defining a criminal offense which conveys a definite meaning as to proscribed conduct when measured by common understanding and practice satisfies due process requirements." Jones v. State, 219 Ga. 848, 850 (136 SE2d 358). See also United States v. Petrillo, 332 U.S. 1 (67 SC 1538, 91 LE 1877) and Wilson v. State, 223 Ga. 531, 533 (156 SE2d 446). The language of Code § 26-2701 conveys sufficiently definite warning as to the conduct forbidden, measured by common understanding and practice. Thus, the statute here in question establishes a reasonably certain standard of conduct and is not unconstitutional for vagueness. See Lynch v. State, 159 Ga. 76 (125 S.E. 70) and Shafer v. State, 214 Tenn. 416 (381 S.W.2d 254), cert. denied, 379 U.S. 979.
In the absence of a transcript of the evidence from the appellant's trial, it cannot be held that the statute in question is void for vagueness as applied to the evidence.
*360 Furthermore, the fact that the appellee failed to file any defensive pleadings or to adduce any evidence at the habeas corpus hearing is no ground for complaint since the question involved here is one of law, and the burden of establishing his ground of attack is upon the petitioner-appellant.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352987/ | 498 P.2d 1183 (1972)
Dwain L. SCHUETTE, Plaintiff-Appellant,
Edwin J. Schomaker, Plaintiff,
v.
David R. WINTERNITZ, Defendant-Appellee,
Charles Homer Cranford, Defendant.
No. 71-274.
Colorado Court of Appeals, Div. I.
July 5, 1972.
*1184 Evans, Peterson & Torbet, Paul V. Evans, Colorado Springs, for plaintiff-appellant.
Kane, Donley & Wills, Lee R. Wills, Colorado Springs, for defendant-appellee.
Not Selected for Official Publication.
PIERCE, Judge.
Early in 1967, defendant Cranford discussed with defendant Winternitz the production and sale of a new type of weight-reducing machine. Cranford had several complete machines and some component parts with him at the time. He stated that he possessed trade secrets in connection with their production and was already in the business of producing and selling them elsewhere, and displayed a purported receipt issued by a warehouse in Texas for 155 of these machines. He further related to Winternitz that he had plans for a more sophisticated machine.
Winternitz, a physician, conducted an experiment with one of the machines and became convinced that the device was effective as a weight reducer of the human body.
After some negotiation, defendants entered into an agreement whereby Winternitz paid Cranford $5,000 for a one-half interest in the business and Cranford was to sell fractions of the business which would reduce each of their interests equally. Proceeds from the sale of these fractional interests were to be divided equally between them. Further, the agreement contemplated the ultimate formation of a corporation to sell the machines on hand and to manufacture and sell additional machines.
Cranford thereafter persuaded each plaintiff to invest $10,000 for a one-sixth interest in the existing machines and future business and promised them salaried positions in the production end of the business after the corporation was formed. Both plaintiffs were shown the warehouse receipt by Cranford and both knew, prior to purchase, that Winternitz owned a one-half interest in the machines and proposed business.
Schomaker paid his $10,000 by a $5,000 note payable to Cranford only and $5,000 in cash. $500 of the cash was eventually received by Winternitz. Schomaker subsequently defaulted on the note, and Winternitz paid a resulting judgment to the then holder. Winternitz never received any portion of the monies paid by Schuette.
The four parties met, hired an attorney, proceeded to have articles of incorporation prepared, and received a certificate of incorporation from the Secretary of State of Colorado, dated October 30, 1967. They all signed as incorporators and all four were named to the first board of directors. The evidence indicates that they were all participating in the decisions made at this point in time. Nothing further was done toward placing the corporation on an operational basis and it was allowed to become defunct.
In 1968, when they suspected that the warehouse receipt was fraudulent and that Cranford had no intention of carrying out the proposed business plan, Schomaker and Schuette filed suit against Cranford and Winternitz. Their claims against Cranford were based on fraud. The essence of their claim against Winternitz was in contract based on failure of consideration or unjust enrichment. No claim of fraud was made against Winternitz. Default judgment was entered against Cranford but, after a full hearing, the court dismissed the claims against Winternitz. Schuette alone appeals.
*1185 I.
Schuette first contends, and the trial court so found, that Cranford was Winternitz' agent for the sale of the machines. This finding is supported by the evidence to the extent that, in selling an interest to Schuette, Cranford acted on behalf of Winternitz and subject to Winternitz' approval. Schuette argues that Winternitz should therefore be held liable as a principal. We do not agree.
An agent who enters into a contract on behalf of a disclosed principal binds that principal to the terms of the contract. However, a principal is not bound by the false representations of his agent made without his knowledge, consent or authority and without ratification by him after receipt of a benefit. Erisman v. McCarty, 77 Colo. 289, 236 P. 777. Indeed, where the agent has perpetrated a fraud to induce the contract, the only remedy against the principal is rescission and restitution. Meredith v. Ramsdell, 152 Colo. 548, 384 P.2d 941. It was established by the evidence, and the trial court found, that Winternitz never received any monies or other consideration from Schuette. Thus, under this theory, Schuette's only remedy is an action for damages against Cranford.
II.
Schuette's other contention is that the trial court erred in failing to find that Winternitz and Cranford were partners, or at least co-promoters, with a fiduciary duty owed to plaintiffs. See 1 W. Fletcher, Cyclopedia of the Law of Corporations § 192. He contends that, if they were partners or co-promoters, Winternitz would be liable on the contract even though Cranford was the only one guilty of fraud.
The trial court found, however, that all the parties were co-promoters of this business and, as such, shared equally in the losses. Buchhalter v. Myers, 85 Colo. 419, 276 P. 972, defines promoters as "persons who bring about the incorporation and organization of a corporation." All the parties here come generally within this definition and we accept the trial court's characterization. Thus, the question presented is whether the court correctly assessed the rights and duties as among co-promoters.
The law varies greatly, from jurisdiction to jurisdiction, as to whether co-promoters stand in the relationship of principal and agent, joint adventurers, or in some trust relationship. See 1 H. Oleck Modern Corporation Law § 38; 1 W. Fletcher Cyclopedia of the Law of Corporations § 191. None of these characterizations adequately cover the multiplicity of problems that arise regarding the unique relationships between promoters. A clear rationale can be gleaned from the decided cases. Promoters are dealt with in whatever category seems most applicable to the particular facts presented.
The relationships among promoters are not such as can be readily classified or categorized, but their rights and duties as among themselves should be based on the particular contractual relationship entered into by them, their common goals, their specific function within the group of promoters, and their relative knowledge and contribution to the total scheme. See H. Oleck, supra. Their rights and duties should then be determined according to the equities presented, taking into account whether they are all on equal footing as co-promoters, whether some are partners and some are agents, or whether some other actual relationship exists among them. Such a determination becomes basically a question of fact. Where, as here, the trial court's conclusion that Schomaker, Schuette, and Winternitz were co-promoters in substantially equal positions is a finding of fact supported by the evidence, it will be affirmed. Daley v. Jackson, 226 Ore. 471, 360 P.2d 542.
Each party knew they were all responsible for getting the business started and that incorporation was a prerequisite to the beginning of the business. Therefore, it was not error to find that they were co-promoters. Further, we agree with the *1186 trial court's conclusion that "the plaintiffs and Winternitz were all three innocent victims of Cranford and that no facts have been shown by plaintiffs which could justify this court in imposing upon Winternitz all of the losses the three have suffered."
Judgment affirmed.
SILVERSTEIN, C. J., and SMITH, J, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352995/ | 498 P.2d 1372 (1972)
84 N.M. 29
STATE of New Mexico, Plaintiff-Appellee,
v.
Terry JOHNSON, Defendant-Appellant.
No. 830.
Court of Appeals of New Mexico.
June 23, 1972.
*1373 Jack Smith, Edwin E. Piper, Jr., Albuquerque, for defendant-appellant.
David L. Norvell, Atty. Gen., Prentis Reid Griffith, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
SUTIN, Judge.
Johnson was convicted and sentenced on two separate counts of burglary. Section 40A-16-3, N.M.S.A. 1953 (Repl.Vol. 6). He appeals.
We reverse and discharge Johnson as to Count I, and reverse and remand as to Count II.
Johnson claims error in seven respects. Two are dispositive of this appeal. The trial court, (1) failed to direct a verdict of acquittal; (2) failed to grant a severance of Count I and II.
1. Failure to Direct a Verdict of Acquittal
Johnson was charged by grand jury indictment with the offense of burglary of two different locations on February 3, 1970. Count I was Home Builders Supply, 133 San Pedro Drive, N.E., Albuquerque, New Mexico. Count II was Honeyman Jewelry Company, 6001-J Lomas, N.E., located in a shopping center called Fair Plaza. The two businesses are about one mile apart. The time of the Home Builders burglary *1374 is unknown. The time of the Honeyman burglary was around 3:00 a.m.
(a) Home Builders Supply Burglary
Johnson was arrested at Fair Plaza around 3:00 a.m., a mile from the Home Builders Supply business. We have carefully reviewed the record and we can find no evidence or facts or reasonable inferences to be drawn therefrom which place Johnson at, near, in, or about the Home Builders business the early morning of February 3rd. The circumstantial evidence upon which the state relies does not support the conviction.
The state points to Johnson's possession of a Camalous pocket knife, Model 77, an item held for sale by Home Builders. Its manager could not identify this knife as one taken from the store at the time of the burglary.
Tools were found in a box in Honeyman Jewelry with the name and address of Home Builders on it. The state contends it may be inferred the tools were taken by Johnson from Home Builders. Its manager could not identify any of these tools as taken from the business.
The state relies upon Johnson's clothes being covered with a dust consistent with dust taken from the cinder block wall of Home Builders. There is no evidence to support this contention.
The state finally contends that the method used in accomplishing entry in both burglaries was the same, namely, knocking a hole in the wall, which convicts Johnson of the Home Builders Supply burglary. This has no merit because it constitutes pure conjecture.
The dust and the hole in the wall may raise a suspicion of Johnson's connection with the Home Builders burglary, but we have held that a strong suspicion is not enough. State v. Malouff, 81 N.M. 619, 471 P.2d 189 (Ct.App. 1970).
We can find no evidence to support the verdict of the jury. The trial court erred in failing to direct a verdict of acquittal for failure of proof.
(b) Honeyman Jewelry Store Burglary
The Honeyman store was burglarized the early morning of February 3rd. An unauthorized entry was made through the door of an adjoining store of Laube & Freed Opticians which was found in shambles. There was a heavy film of dust on everything. The door had been "popped open." The bolt device was on the outside of the doorjamb with markings on the door frame. A window had chips and markings. You could not push on the door and close it.
Through a wall between the offices of Laube & Freed and Honeyman was a hole 18 x 24 inches. Inside Honeyman, a box of tools was found that had Home Builders address on it. The tools were secondhand hammers, chisels, and a crowbar, the extent of which use was unknown. Also found was wrapping paper and cutting pliers.
On the early morning of February 3rd, a witness who lived on Cardenas to the west side of Fair Plaza was awakened by the noise of a car which stopped across the street from her home. She arose quickly and saw a man run very fast through an archway in the Fair Plaza about 30 feet from Honeyman. Being suspicious she called the police. A police officer arrived at 1:20 a.m., examined the car, a 1962 Chevrolet 4-door sedan. By flashlight he saw cowboy boots and a white dish towel in the front seat. He saw no one and returned to service.
About 3:00 a.m., the witness heard a car again. She arose, but the car was not there. Five minutes later, she heard an alarm, and again called the police. The police officer and other police cars arrived and found the same car parked and unlocked. The cowboy boots and towel were gone. On the back seat was a jacket and hat.
The police also found a pair of gloves on the sidewalk in front of Laube & Freed and a pair in the car with pumice and mortar on them consistent with pumice in Honeyman's and white paint from Laube & Freed.
Honeyman had a burglar alarm to which was hooked the door of the safe, the front door and the rear of the back door. Its *1375 wires had been pulled. An alarm had been heard, but not by the police on arrival at the scene. Johnson did have some experience with burglar alarms.
At the northwest corner of Fair Plaza, two police officers saw Johnson and another man, and they all approached each other near Laube & Freed. The other man had a tire tool in his hand, 24 inches long, flat on one end and silver in color. Johnson said his car was out of gas and they were trying to find a service station open. The other man said he carried the tire tool for protection because they had been assaulted by four men. Their clothing was very dusty and covered with a white powdery material substance. Johnson agreed to allow the police to start the car. It had 1/8 tank of gasoline and it started.
This false explanation by Johnson during his presence near Laube & Freed is a circumstance indicative of guilt. Reid v. Brown, 56 N.M. 65, 240 P.2d 213 (1952); State v. Gonzales, 82 N.M. 388, 482 P.2d 252 (Ct.App. 1971).
Mere presence alone near Laube & Freed and Honeyman Jewelry is insufficient to sustain a conviction for burglary. State v. Sedillo, 82 N.M. 287, 480 P.2d 401 (Ct.App. 1971). However, the facts set forth above, and reasonable inferences drawn therefrom, show much more than mere presence. All point toward circumstances to be properly considered by the jury in arriving at a verdict. See State v. Sharp, 78 N.M. 220, 430 P.2d 378 (1967); State v. Roybal, 76 N.M. 337, 414 P.2d 850 (1966); State v. Serrano, 74 N.M. 412, 394 P.2d 262 (1964); State v. Ocanas, 61 N.M. 484, 303 P.2d 390 (1956).
We must recognize the fact that an offense, like this one, can rarely be proved by witnesses who saw and recognized Johnson in the act of making an unauthorized entry with intent to commit a theft. Ordinarily, it must be proved by circumstantial evidence sufficient to submit the issue to the jury. See dissenting opinion, State v. Grubaugh, 54 N.M. 272, 221 P.2d 1055 (1950).
There is sufficient evidence upon which to submit to the jury the guilt or innocence of Johnson. The trial court did not err in refusing to direct a verdict of acquittal.
2. Failure to Grant a Severance of Counts I and II
It becomes important to determine whether Johnson was entitled to a severance of the Honeyman burglary from the Home Builders burglary in order to have a fair trial.
Prior to trial, Johnson objected to consolidated trials of Counts I and II, and filed a motion for separate trials of the two burglaries because the alleged felonies occurred at different times and places, and related to property belonging to different owners. At the time trial began, the trial court denied the motion because it did not appear that Johnson would be prejudiced. At the close of the state's case, Johnson renewed the motion. After conviction but before judgment sentence, Johnson filed a motion for arrest of judgment on the same basis. No rulings were made.
The evidence is clear that the burglaries at Home Builders and Honeyman Jewelry occurred at different times and places, and related to property belonging to different owners.
Johnson relies on State v. Paschall, 74 N.M. 750, 398 P.2d 439 (1965).
In Paschall, defendant was charged in separate criminal informations of separate felonies alleged to have been committed at widely separated times and places, and involved the property of different owners. He was convicted of four felonies consolidated for trial over defendant's strenuous objection. The Supreme Court held the trial court abused its discretion in denying severance of offenses, and reversed. The rule on severance was stated as follows:
It is permissible to charge separate offenses in a single information if they relate to the same transaction or event, or to connected transactions and, under some circumstances not pertinent here, *1376 they may be tried together before the same jury. [Citing cases]. But, correlatively, two or more separate and distinct felonies occurring at different times and places, and relating to property belonging to different owners, may not be jointly tried over the defendant's objection. [Citing cases.]
* * * * * *
It is fundamental, however, that courts must not permit a defendant to be embarrassed in his defense by a multiplicity of charges to be tried before one jury.
* * * * * *
It would seem to us that in the very nature of things it cannot be said that the defendant in this case was not prejudiced in his defense by consolidation for trial of these separate charges.
We specifically note that Paschall did not require a hearing on a motion for severance. Neither did it mention that the defendant had the burden of specifically establishing prejudice upon failure to allow severance. The above language of Paschall, however, does not mean that we must hold as a matter of law that Johnson was prejudiced. It need only be shown that a denial of severance resulted in prejudice to Johnson. State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App. 1970).
In State v. Sero, supra, and State v. Silver, 83 N.M. 1, 487 P.2d 910 (Ct.App. 1971), we held that a denial of severance was not prejudicial because the defendant was acquitted on one or more charges. The jury was able to follow the evidence. This is a strong factor that a denial of severance was not prejudicial and did not constitute an abuse of discretion.
Here, Johnson was found guilty on both counts. Evidence of facts pertaining to the alleged Home Builders burglary was interspersed in the alleged Honeyman Jewelry burglary. This consisted of, (1) tools with price tags of Home Builders in a box which had the name and address of this business on it; (2) a hole in Home Builders being similar to the hole in Honeyman; (3) testimony of witnesses relative to the alleged Home Builders burglary. We cannot say that the jury did not consider the proof submitted regarding the Home Builders burglary with the Honeyman Jewelry burglary. "The very nature of things" does establish that Johnson was prejudiced in defending against both counts because the alleged Honeyman burglary was submitted on circumstantial evidence.
American Bar Association project on Minimum Standards for Criminal Justice relating to approved standards for Joinder and Severance are set out in part in the concurring opinion of State v. Silver, supra. On pages 31 and 32 of the Commentary on the standards, the authors stated:
Two of the most compelling reasons for granting the defendant this right of severance without any specific showing of prejudice in his case are:
(1) Undue limitations on the defendant's right to testify in his own behalf. Cross v. United States, [118 U.S.App. D.C. 324] 335 F.2d 987, 989 (D.C. Cir. 1964).
* * * * * *
(2) [P]rejudice through introduction of evidence which fails to meet the other crimes test. Drew v. United States, [118 U.S.App.D.C. 11] 331 F.2d 85, 90 (D.C. Cir.1964). In Drew the court concluded that the defendant had been prejudiced because he was required to stand trial on two separate robberies at the same time. Had the defendant been prosecuted on each robbery separately, the evidence of the other crime would not have been admissible under the other crimes rule. Thus by joining the unrelated offenses together for trial, the prosecution brought about the evil to be avoided by the general rule that evidence of other crimes is not admissible: "the likelihood that juries will make * * * an improper inference." See Note, 74 Yale L.J. 553, 556-57 (1965). [Emphasis added].
The above rules are compatible with Paschall, and applicable to this case. The *1377 trial court's denial of severance of Counts I and II was prejudicial to Johnson's defense and constituted an abuse of discretion.
Johnson's other claims of error are related to the Home Builders burglary or have no merit on a retrial of this case.
The conviction and sentence on Counts I and II are reversed. Since we reverse Count I for failure of proof, rather than error in the trial proceedings, this cause is remanded with instructions to discharge Johnson on Count I. State v. Malouff, supra.
Johnson is entitled to a new trial on Count II, the Honeyman burglary.
It is so ordered.
HENDLEY, J., concurs.
WOOD, C.J., dissenting.
WOOD, Chief Judge (dissenting).
The majority hold there was sufficient evidence to sustain the conviction of defendant for burglarizing the jewelry store. I agree. The majority hold there is insufficient evidence to sustain defendant's conviction for burglarizing Home Builders Supply. I disagree. The majority reverse defendant's conviction for the jewelry store burglary on the basis that trial of the two burglary charges should have been severed. I disagree.
Evidence connecting defendant with Home Builders Supply burglary.
When arrested, defendant had in his possession a pocketknife of the brand and model sold by Home Builders Supply. Within the jewelry store various tools were found that had Home Builders price tags on them. At trial, the manager of Home Builders Supply was unable to state that the pocketknife or the tools were taken in the burglary of Home Builders Supply. The majority seize on the inability of the manager to make positive identification to eliminate the pocketknife and tools as evidence connecting defendant with the Home Builders Supply burglary.
The following demonstrates that the majority failed to consider all of the evidence.
(a) The manager testified that an inventory was made of items missing after the burglary. He did not bring his copy of the inventory to the trial, but did testify that some of the items in evidence (the pocketknife and the tools) matched the description of items "* * * that showed up missing in * * * [the] inventory."
(b) With respect to the pocketknife, Officer Thompson testified that he was furnished a list of items taken in the burglary, that this list was included in his investigative report and that a pocketknife of the same brand and model found in defendant's possession was one of the items reported as missing. Defendant complains that Officer Thompson's testimony was erroneously admitted, but the objection raised on appeal was never presented to the trial court. It will not now be considered. State v. Williams, 83 N.M. 477, 493 P.2d 962 (Ct.App. 1972).
(c) A photograph in evidence shows the glass on the knife display case at Home Builders Supply had been broken and there is evidence this occurred in the burglary.
(d) The tools with Home Builders Supply price tags, found in the jewelry store, are characterized by the majority as "* * * secondhand * * *, the extent of which use was unknown. * * *" While this statement may be technically correct, it disregards the fact that the tools are in evidence and were viewed by the jury and that a view of the tools did not require the jury to characterize the tools as the majority does. The tools are little scratched, there are no sweat marks on the handles and their appearance would support an inference of being little used specifically, their appearance is that of new tools used only once.
The manager testified the wall of Home Builders Supply was of block and the FBI witness testified the dust on defendant's clothing was consistent with dust from block walls. The method of entry in both burglaries was the same; holes were *1378 knocked through walls. The majority characterize the dust and the method of entry as no more than suspicion. If these two items stood alone I would agree, but they do not stand alone.
Further, an item not discussed by the majority in connection with the Home Builders Supply burglary is that there is sufficient evidence to sustain defendant's conviction for burglary of the jewelry store.
On review, we are to view the evidence in the light most favorable to the verdict. State v. Sedillo, 82 N.M. 287, 480 P.2d 401 (Ct.App. 1971). Applying this rule, there is evidence that defendant burglarized the jewelry store. This connects defendant with the little used tools, bearing Home Builders Supply price tags, which were of the same description as some of the tools taken in the burglary of Home Builders Supply. In addition, defendant possessed a pocketknife of the same brand and model listed as taken in the burglary of Home Builders Supply. Further, defendant entered the jewelry store by knocking a hole in a block wall; Home Builders Supply was entered in the same way. Finally, the dust on defendant's clothes was consistent with dust from block walls.
In my opinion, the foregoing evidence is sufficient to sustain the conviction of defendant for the Home Builders Supply burglary.
Severance.
Prior to trial, defendant moved for separate trials on the two burglary charges on the basis that: "* * * two or more separate and distinct felonies occuring [sic] at different times and places and relating to property belonging to different owners may not be jointly tried over Defendant's objection." The hearing on this motion consisted of arguments of counsel. At that hearing, the State referred to items of evidence it intended to introduce and asserted it would rely on a "common scheme or plan." With this record, the trial court did not err in denying defendant's motion, even under State v. Paschall, 74 N.M. 750, 398 P.2d 439 (1965).
By motion subsequent to trial, defendant again raised the severance issue, asserting the trial court "* * * erred in trying the two separate and distinct charges together at the same trial." The majority opinion does not make it clear which of defendant's motions raised the severance issue for appellate review. In my opinion, the issue is before us on the basis of the post-trial motion.
In holding there should have been a severance, the majority rely, in part, on commentaries from the American Bar Association Standards of Criminal Justice. Their authority for doing so is a specially concurring opinion in State v. Silver, 83 N.M. 1, 487 P.2d 910 (Ct.App. 1971). The specially concurring opinion considered the American Bar Association Standards as authoritative because the Standards had been approved in Colorado "* * * and may be approved by the Supreme Court of New Mexico. * * *" (Our emphasis). This bootstrap attempt at giving authority to the Standards in New Mexico is erroneous. The New Mexico Supreme Court has not adopted the American Bar Association Standards. Instead, it adopted its own Rules of Criminal Procedure to become effective July 1, 1972. Rule 10 of these rules, entitled "Joinder of Offenses" would be applicable if the New Mexico rules applied to this case. New Mexico commentaries are not yet available to this Court. But the New Mexico rules do not apply because they are not yet in effect. In my opinion, the majority proceed improperly when it discusses the severance issue in relation to American Bar Association Standards, but ignore New Mexico Rules of Criminal Procedure.
The severance issue in this case is controlled by New Mexico decisions. The New Mexico decision on which the majority rely, as did the defendant in the trial court and in this appeal, is State v. Paschall, supra. This reliance is misplaced. In Paschall, supra, defendant was charged *1379 in four informations with six separate crimes. Two of the charges pertained to property of Fair Oil Company. Of these two charges, one was a charge of larceny of the property, the other was a charge of receiving and concealing that property. The joinder of these two charges was not held to be error. The error in joinder was in connection with the remaining four charges. These four charges were of separate and distinct felonies occurring at different times and places, and related to property belonging to different owners. The majority apply this decisional ground of Paschall in this case.
In doing so, they ignore the statements in Paschall, supra, indicating connected transactions can be tried together. Such a connection occurs when the charges as to the distinct offenses are provable by the same evidence. State v. Paschall, supra; State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App. 1970). In this case, evidence that defendant committed the jewelry store burglary was admissible to prove defendant's connection with the burglary of Home Builders Supply. Because of this connection, the majority, in my opinion, apply Paschall, supra, erroneously.
The majority, properly, address the question of prejudice to the defendant and abuse of discretion by the trial court. "* * * The denial of the request for severance is not a basis for reversal unless abuse of discretion and prejudice is shown. * * *" State v. Silver, supra. The majority hold there is prejudice and abuse of discretion because evidence as to the burglary of Home Builders Supply "was interspersed" with evidence as to the jewelry store burglary. "* * * The fact alone that evidence of two separate crimes is before the jury does not afford proof of legal prejudice. * * *" State v. Brewer, 56 N.M. 226, 242 P.2d 996 (1952); State v. Gunthorpe, 81 N.M. 515, 469 P.2d 160 (Ct. App. 1970), cert. denied, 401 U.S. 941, 91 S. Ct. 943, 28 L. Ed. 2d 221 (1971). Nor can the evidence of two separate crimes, without more, amount to an abuse of discretion. Here, the claim is based on the evidence of two separate crimes being combined in one trial. Since that is insufficient, in my opinion, the majority err in holding there was prejudice and abuse of discretion.
For the foregoing reasons, I dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725940/ | 675 So. 2d 1008 (1996)
Mario Raphael STEPPS, Appellant,
v.
STATE of Florida, Appellee.
No. 95-3404.
District Court of Appeal of Florida, First District.
June 18, 1996.
Nancy A. Daniels, Public Defender, and Alisa Smith, Assistant Public Defender, Tallahassee, for Appellant.
*1009 Robert A. Butterworth, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The appellant challenges the revocation of his community control, and the imposition of a sentence of imprisonment. Because there was sufficient evidence to support the determination that the appellant willfully and substantially violated the conditions of community control, the revocation is affirmed. However, on remand the court should amend the revocation order to reflect the specific violations as orally pronounced. Gregg v. State, 643 So. 2d 106 (Fla. 1st DCA 1994).
A Florida Rule of Criminal Procedure 3.990 guidelines scoresheet was improperly used in this case, as this scoresheet does not apply to offenses committed before 1994. See Fla. R.Crim. P. 3.702(a); § 921.001(4)(b)2, Fla. Stat. (Supp.1994). The use of this scoresheet altered the applicable guidelines range for a nondeparture sentence, and requires resentencing with a proper guidelines scoresheet. E.g., Gregory v. State, 666 So. 2d 222 (Fla. 2d DCA 1995); Johnson v. State, 583 So. 2d 386 (Fla. 1st DCA 1991). The sentence is therefore vacated, and the case is remanded.
MINER, ALLEN and MICKLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2205055/ | 688 N.W.2d 84 (2004)
PEOPLE
v.
GEORGEES.
125470.
Supreme Court of Michigan.
October 25, 2004.
SC: 125470. COA: 250890.
On order of the Court, the application for leave to appeal the December 19, 2003 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264613/ | 879 F.Supp. 106 (1994)
ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC., et al., Plaintiffs,
v.
Hillary Rodham CLINTON, et al., Defendants.
Civ.A. No. 93-0399 (RCL).
United States District Court, District of Columbia.
December 21, 1994.
*107 Thomas R. Spencer, Spencer & Klein, Miami, FL, and Frank M. Northam, Webster Chamberlain & Bean, Washington, DC, for plaintiffs.
Robert S. Whitman, Nussbaum & Wald, and Thomas W. Millet IV, Dept. of Justice, Washington, DC, for defendants.
MEMORANDUM AND ORDER
LAMBERTH, District Judge.
At long last, this case is, in fact, moot. Defendants' motion to dismiss is GRANTED, and this case is hereby DISMISSED WITH PREJUDICE.
After this court's Memorandum and Order of December 1, 1994, a hearing was held on December 2, 1994. Defendants there indicated that rather than continuing to withhold documents in the 13 boxes they had submitted for in camera, ex parte review, all of the documents would be made public. At a hearing on December 16, 1994, defendants confirmed (without objection by plaintiffs) that the documents are all now available for public inspection at the National Archives, along with the computer disks that had not previously been made public.
The only remaining question raised in this court's Memorandum and Order of December 1, 1994, was whether any further search for additional documents should be required. Upon further consideration, the court has determined that defendants have met their burden of establishing that no further search is required. All working group participants were advised, before the working group's termination, that any documents they created or reviewed were White House records, and that they should be provided to the White House. Extensive follow-up efforts produced yet more documents, but plaintiffs have not cited a single instance to the court where any participant still has any White House records that have not now been made public. Plaintiffs were given an opportunity to take discovery before the court ruled on defendants' motion to dismiss, and the court is now satisfied that defendants are legally entitled to dismissal based on the record before the court.
Both sides agree that dismissal of this case moots the question of possible civil contempt of court raised by plaintiffs against Ira Magaziner, Senior Advisor to the President for Policy Development. There is a remaining question, however: Did Mr. Magaziner commit the criminal offense of contempt of court as well as possibly perjury and/or making a false statement when he signed a sworn declaration filed on March 3, 1993, that led this court to initially dismiss the claim for records of the interdepartmental working group.
On March 3, 1993, Mr. Magaziner signed a declaration, under penalty of perjury, in which he stated that "[o]nly federal government employees serve as members of the interdepartmental working group." He stated that these employees were either full-time permanent federal employees of which there were approximately 300 or "special government employees" serving for less than 130 days, with or without compensation of which there were approximately 40. Mr. Magaziner did not, however, specify in the declaration how he defined "members" of the interdepartmental working group.
Further concerns are raised in the next portion of Mr. Magaziner's sworn declaration. Mr. Magaziner stated that the working group had "also retained a wide range of consultants who attend working group meetings on an intermittent basis, either with or without compensation." Mr. Magaziner also stated that "[t]hese consultants have not had any supervisory role or decision-making authority in connection with the consulting services they have provided to the working group, but instead provide information and opinion to the working group members." Mr. Magaziner further stated that he had "arranged for these consultants to be informed that in connection with their services to the working group, they too are subject to a limited version of the conflict of interest provisions set forth in 18 U.S.C. §§ 201-208; the Standards of Ethical Conduct for Employees *108 of the Executive Branch; and all related ethics laws and regulations."
We now know, from the records produced in this litigation, that numerous individuals who were never federal employees did much more than just attend working group meetings on an intermittent basis, and we now know that some of these individuals even had supervisory or decision-making roles. The extent to which these individuals were subjected to conflict-of-interest scrutiny is also questionable.
The question for criminal contempt purposes, however, is what Mr. Magaziner knew at the time he signed his sworn declaration on March 3, 1993. He must be proven to have been intentionally untruthful at the time he signed the document before he can be found guilty of a criminal offense. The defendants, and/or their counsel, may have engaged in sanctionable conduct later when they did not promptly correct the court filing, but the court must decide criminal contempt based on Mr. Magaziner's knowledge on March 3, 1993.
At the oral argument on July 25, 1994, on the cross-motions for summary judgment and on plaintiffs' motion to require Mr. Magaziner to show cause why he should not be held in contempt of court, the court denied summary judgment and reserved ruling on the contempt question. The court noted at that time that "serious" and "troubling" issues were raised by plaintiffs but that further development of the facts was needed before the court could determine the contempt question. Now that this case is moot, however, there will be no trial, and there will be no further development of the facts in this action about what Mr. Magaziner knew and when he knew it. Accordingly, the court has determined that the question must be referred to the United States Attorney for the District of Columbia, for further development of the facts in order to determine whether a criminal offense has been committed.[1]
The record herein does not reflect whether Mr. Magaziner is a "covered person" within the statute authorizing appointment of an Independent Counsel, 28 U.S.C. § 591, et seq., but in any event the initial inquiry whether to seek appointment of an Independent Counsel would be the responsibility of the Attorney General.
Plaintiffs allege that an examination of the Secret Service records of entries into the Old Executive Office Building entries of people who were cleared in by Mr. Magaziner or his immediate staff demonstrates that many of these individuals (who were not federal employees and who were active working group participants) were entering the White House complex well before Mr. Magaziner signed his March 3 declaration. Moreover, plaintiffs allege that members of Mr. Magaziner's own private consulting firm and its successor company were participants in the working groups whom he certainly should have known about, and that those individuals never became either full-time government employees or special government employees. Plaintiffs allege that numerous representatives of special interests were active participants in the working group process, and that Mr. Magaziner concealed this information in his March 3 declaration. The interdepartmental working group reported to Mr. Magaziner, not to the President or the First Lady. Mr. Magaziner wrote the Work Plan, and the number of participants grew from a list of 215 in early February to a list of 340 by the time of Mr. Magaziner's sworn declaration on March 3. Although the defendants now make much of the "fluidity" of this process, none of that "fluidity" is included in Mr. Magaziner's March 3 declaration. The defendants' later position, that "membership" on the interdepartmental working group is impossible to determine, simply demonstrates how misleading, at best, Mr. Magaziner's March 3 declaration actually was.
The court agrees with defendants that criminal contempt is a grave matter. The court also agrees that it must be based, here, *109 on evidence of deliberate and willful misrepresentations. Defendants urge the court to find that Mr. Magaziner had no such intent. The court cannot do so at this time; the record is simply insufficient as to what Mr. Magaziner knew and when he knew it.
Accordingly, because this action is now moot and a further record cannot be developed herein, this matter is referred to the United States Attorney for appropriate consideration. The Clerk of Court shall send a copy of this Memorandum and Order to the United States Attorney for the District of Columbia and to the Attorney General of the United States.
A status conference shall be held on January 9, 1995, at 9:30 a.m. to schedule consideration of plaintiffs' collateral requests for other sanctions and attorneys' fees and costs.
SO ORDERED.
NOTES
[1] Mr. Magaziner has been represented herein, as a named federal government defendant in this civil action, by the Assistant Attorney General for the Civil Division of the Department of Justice and his staff. Neither the United States Attorney, nor his staff, has participated in this litigation, insofar as the court is aware, although the name of the United States Attorney has been typed on various pleadings because of his statutory position. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264623/ | 744 A.2d 348 (2000)
ABF FREIGHT SYSTEMS, INC., Petitioner,
v.
WORKERS' COMPENSATION APPEAL BOARD (ITEN), Respondent.
Commonwealth Court of Pennsylvania.
Argued September 16, 1999.
Decided January 11, 2000.
Michael A. Farrell, Harrisburg, for petitioner.
James L. McAneny, Harrisburg, for respondent.
Before DOYLE, President Judge, PELLEGRINI, J., and NARICK, Senior Judge.
NARICK, Senior Judge.
ABF Freight Systems, Inc., (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) order denying its suspension and modification petitions. Employer presents two issues for our review: First, whether the record contains substantial evidence supporting the Board's affirmance of the WCJ's decision and order; and second, whether the non-union office clerk position offered by Employer is unavailable to an injured union member as a matter of law under the Pennsylvania Supreme Court's decision in St. Joe Container Co. v. Workmen's Compensation Appeal Board (Staroschuck), 534 Pa. 347, 633 A.2d 128 (1993). For the reasons set forth herein, we affirm.
Robert Iten (Claimant) served as a union dock worker for Employer. On October 17, 1989, Claimant sustained injuries to his right arm, left ankle and right rotator cuff when he fell on the dock. Employer subsequently issued a notice of compensation payable for these injuries and began paying Claimant benefits. On *349 February 17, 1994, Employer filed a modification petition asserting that its medical expert released Claimant to return to work as an office clerk.[1] Claimant filed an answer declining to accept the position on the basis that the office clerk position also was not within his physical capabilities, and further, that the nonunion status of the position made it unavailable given the resultant loss of his union benefits.
The WCJ conducted several hearings at which Claimant presented his own testimony and that of Barry Moore, M.D., and Dale Crum, a representative of Teamsters Local 776. Claimant testified regarding his work-related injuries, his union membership and the relevant terms and conditions of the Master Freight Agreement (union contract). Dr. Moore testified that he referred Claimant to Richard Boal, M.D., who performed arthroscopic surgery on Claimant's right knee and a nonsurgical procedure on Claimant's right shoulder. Dr. Moore testified that Claimant's injuries were related to his work injury and that the office clerk position was not within Claimant's physical capabilities. Mr. Crum testified that if Claimant accepted the non-union office clerk position he would forfeit his union seniority, pension, insurance, leave benefits and rights under the grievance process.
Employer presented the testimony of J. Joseph Danyo, M.D., Mark Holencik, M.D., John Eppley, a vocational expert, and Steve Walters, Employer's terminal manager. Both Dr. Danyo and Dr. Holencik testified that Claimant was physically capable of performing the office clerk position and that any of Claimant's remaining maladies were not related to his work injury. Mr. Eppley testified that Claimant was vocationally suited for the office clerk position and Mr. Walters testified that the benefits package offered to Claimant exceeded the benefits available through his union membership.
By decision and order dated January 31, 1997, the WCJ denied Employer's modification petition upon concluding that Employer failed to show job availability pursuant to the standard set forth by the Pennsylvania Supreme Court in Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987).[2] The WCJ credited Claimant's testimony and found Dr. Moore's testimony more credible than the medical testimony presented by Employer. The WCJ relied on St. Joe Container, 534 Pa. at 354-356, 633 A.2d at 131-132, in determining that Employer did not carry its burden of showing job availability since non-union positions are unavailable to union *350 members as a matter of law. Employer appealed the WCJ's decision and order to the Board, which affirmed by order dated February 9, 1999. The instant appeal followed.[3]
On appeal, Employer first argues that it presented sufficient evidence to carry its burden of showing that it made a valid job offer to Claimant. In rejecting this argument we need only note that our scope of review does not permit such an inquiry. We have repeatedly held that appellate review of evidence presented in workers' compensation proceedings is limited to an examination of whether the record contains substantial competent evidence that a reasonable mind could find adequate to support the WCJ's findings and conclusions. Schneider National Carriers v. Workers' Compensation Appeal Board, 738 A.2d 53 (Pa.Cmwlth.1999); NGK Metals v. Workers' Compensation Appeal Board (Anastasio), 713 A.2d 123 (Pa. Cmwlth.1998); Sellari v. Workers' Compensation Appeal Board (NGK Metals Corp.), 698 A.2d 1372 (Pa.Cmwlth.1997). Accordingly, we may not consider whether the record contains sufficient evidence that could support an alternate result favoring Employer's position. Our review of the record reveals that substantial competent evidence exists which supports the WCJ's determinations.
Employer next argues that the Board erred in affirming the WCJ's determination that it failed to carry its burden of showing job availability in accordance with the standard set forth in Kachinski, 516 Pa. 240, 532 A.2d 374. Kachinski established the procedure governing the modification of benefits when a claimant is allegedly capable of returning to work and provides as follows:
1. The employer bears the burden of producing medical evidence showing recovery of some or all of the claimant's abilities as demonstrated by evidence of a change in condition;
2. The employer must then produce evidence of a referral to an available job which the claimant is medically cleared to perform;
3. The burden then shifts to the claimant who must follow through on the job offer in good faith;
4. If the offer fails to result in a job, the claimant's benefits should continue.
Id. at 251-52, 532 A.2d at 379-80. Employer argues that the WCJ erroneously applied the Supreme Court's decision in St. Joe Container, 534 Pa. 347, 633 A.2d 128, when it determined that the non-union office clerk position was unavailable as a matter of law given Claimant's union status. Employer maintains that St. Joe Container does not control the instant case since the office clerk position offered to Claimant does not affect his union status. Id. We disagree.
St. Joe Container involved a factual scenario similar to the instant case where Andrew Staroschuck (Staroschuck), a unionized machine operator, sustained a back injury while in the employ of the St. Joe Container Co. (St. Joe). Id. St. Joe offered Staroschuck a non-union shipping clerk position upon determining that the duties of this job were within his physical limitations. Staroschuck declined to accept the shipping clerk position on the basis that he would have to forfeit his union benefits. St. Joe filed a modification *351 petition asserting that Staroschuck had refused a valid job offer since it included an equivalent benefits package. The Supreme Court determined that the offer of a comparable traditional benefit package relating to vacation, insurance and pension was not commensurate with the complete union benefits package.[4] In affirming the denial of St. Joe's modification petition the Supreme Court stated:
[St. Joe's] argument fails to dispute the existence of the harsh effect worked upon [Staroschuck] by the threatened forfeiture of seniority, security and other benefits associated with his lengthy union service. Moreover, it essentially asks this Court to recognize "degrees of harshness" with respect to the forfeiture of union status, with the hope that we will determine that the benefits of the non-union shipping clerk position comport with those acquired after lengthy unionized service in a manufacturing position. In this instance, such would be inappropriate, since under the facts of this case, the penalties associated with accepting the shipping clerk position are clearly not tantamount to the benefits and attributes provided by that position.[5]
The result in St. Joe Container recognizes the distinction between easily duplicated traditional employment benefits, e.g., compensation, vacation, insurance and pension, and the intangible benefits that are historically only available through union membership, e.g., job security, access to a grievance process and the right to strike. Id.
In the case sub judice, Employer contends that it met its Kachinski burden of offering Claimant an available position since the benefits package that accompanied the offer of the non-union office clerk position was comparable to Claimant's union benefit package. Kachinski, 516 Pa. 240, 532 A.2d 374. Employer maintains that St. Joe Container should not be applied as a bright-line rule, but rather, urges this Court to apply a "totality of the circumstances" test when assessing the equivalence of a claimant's union benefits with the benefits package accompanying a non-union job offer. However, the Supreme Court foreclosed such an approach when it declined to engage in a "degrees of harshness" analysis when evaluating the availability of a non-union job offer to a unionized claimant. St. Joe Container, at 534 Pa. at 354, 633 A.2d at 131. In rejecting such a benefit by benefit comparison approach, the Supreme Court wisely recognized the pitfalls inherent in attempting to compare "apples and oranges" when evaluating the equivalence of a traditional benefits package and the qualitatively different benefits derived through union membership. Moreover, Employer tacitly recognizes in its appellate brief that there is no substitute for certain union benefits. Employer's brief extensively compares its traditional benefits package offered to Claimant with the corollary benefits available through the union contract, while never *352 discussing how it would compensate Claimant for the loss of his union guaranteed job security, access to a grievance process and the right to strike.
Accordingly, since the Supreme Court has determined that there is not a suitable substitute for certain union benefits, a non-union position is unavailable to a unionized claimant as a matter of law even where the employer presents an arguably comparable traditional benefits package.[6] The decision and order of the Board upholding the determination of the WCJ is hereby affirmed.
ORDER
AND NOW, this 11th day of January, 2000, the order of the Workers' Compensation Appeal Board dated February 9, 1999, is hereby affirmed.
Judge PELLEGRINI concurs in the result only.
NOTES
[1] Prior to filing its modification petition, Employer had filed a suspension petition on August 13, 1993 asserting that Claimant improperly declined to accept its offer of an available line-haul transport operator position. The WCJ consolidated the suspension and modification petitions and received evidence regarding both petitions at hearings conducted during 1993 and 1994. In a decision and order dated January 31, 1997, the WCJ determined that the line-haul operator position was not within Claimant's physical capabilities. Employer did not preserve any issue on appeal regarding the WCJ's disposition of the suspension petition. Accordingly, we shall limit all further discussion in this opinion to the modification petition and the issues that Employer preserved pertaining to the non-union office clerk position.
[2] We note that the WCJ's conclusion of law number three makes a single reference indicating that both positions Employer offered to Claimant were not within his physical capabilities. (WCJ Decision, Jan. 31, 1997, Conclusion of Law No. 3, at 6). However, all further discussion of the non-union clerk position indicated that the WCJ's actual basis for denying Employer's modification petition was its offer of a position that was not available to Claimant under Kachinski, 516 Pa. 240, 532 A.2d 374, and St. Joe Container, 534 Pa. 347, 633 A.2d 128. Additionally, the Board's decision and order pertaining to the modification petition focused exclusively on Employer's failure to offer an available job. (Board Decision, Feb. 9, 1999 at 1-6). Finally, the posture of the parties throughout the appeal process reflects an understanding that the basis for the WCJ's denial of the modification petition was the job availability issue, and we shall proceed accordingly.
[3] Our scope of review in a workers' compensation appeal is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial competent evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. Substantial evidence has been defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Jordan v. Workers' Compensation Appeal Board (Consolidated Electrical Distributors), 550 Pa. 232, 704 A.2d 1063 (1997). The WCJ is sole arbiter of fact, evidentiary weight and credibility, and may accept or reject any testimony in whole or in part. Hills Department Store #59 v. Workmen's Compensation Appeal Board (McMullen), 166 Pa.Cmwlth. 354, 646 A.2d 1272 (1994).
[4] Staroschuck's union contract contained a provision permitting union members to work in a non-union capacity for up to six months without affecting their union status. The St. Joe Container Court modified Staroschuck's benefits for the six-month period during which he could have worked without a detriment to his union benefits, and thereafter declared the non-union shipping clerk position unavailable for modification petition purposes. St. Joe Container, 534 Pa. 347, 633 A.2d 128. Since the record does not indicate that the union contract at issue here contains an equivalent six-month window provision, this aspect of the St. Joe Container decision has no relevance to the case sub judice. Id.
[5] St. Joe Container, 534 Pa. at 354, 633 A.2d at 131. The Supreme Court seemingly placed some significance on Staroschuck's lengthy 36-year union membership in demonstrating the inequitable result derived from forfeiture of his union status. In Interstate Container Corp. v. Workers' Compensation Appeal Board (Keim), 710 A.2d 1249 (Pa.Cmwlth.1998), this Court determined that length of union service is not a valid consideration when evaluating whether to grant a modification petition where a unionized claimant declines an offer of a non-union position.
[6] In rejecting Employer's totality of the circumstances approach, we do not embrace its characterization of St. Joe Container as a bright line rule rendering all non-union positions unavailable to union members. St. Joe Container, 534 Pa. 347, 633 A.2d 128. Rather, we adopt the Supreme Court's preference for a subjective analysis of the entire array of benefits available through union membership when assessing the availability of a non-union position to a unionized claimant under Kachinski, 516 Pa. 240, 532 A.2d 374. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264631/ | 744 A.2d 255 (2000)
327 N.J. Super. 595
Raymond McGROGAN and Pauline McGrogan, Plaintiffs-Appellants,
v.
Peter W. TILL, An Attorney at Law of the State of New Jersey, Andrew J. Goldstein, An Attorney at Law of the State of New Jersey, Allyn Z. Lite, An Attorney at Law of the State of New Jersey, Samuel N. Reiken, An Attorney at Law of the State of New Jersey, and the Firm of Goldstein, Till, Lite And Reiken, Defendants-Respondents.
Superior Court of New Jersey, Appellate Division.
Argued December 7, 1999.
Decided February 1, 2000.
*256 Kenneth S. Javerbaum, Springfield, for plaintiffs-appellants (Javerbaum, Wurgaft, Hicks & Zarin, attorneys; Mr. Javerbaum, of counsel; David L. Wikstrom, on the briefs).
Thomas G. Roth, Newark, for defendants-respondent Peter W. Till (Roth & Fettweis, attorneys; Mr. Roth, of counsel; Robin A. Newman and Louise Arkel, on the joint brief).
Bruce D. Greenberg, Newark, for defendants-respondents Andrew J. Goldstein, Allyn Z. Lite and Goldstein Lite & DePalma (Lite, DePalma, Greenberg & Rivas, attorneys; Andrew J. Goldstein and Mr. Greenberg, of counsel; Mary Jean Pizza, on the joint brief).
Before Judges SKILLMAN, D'ANNUNZIO and FALL.
The opinion of the court was delivered by D'ANNUNZIO, J.A.D.
This is a unique case involving a claim of legal malpractice allegedly committed by defense counsel in the context of a criminal prosecution. Plaintiff Raymond McGrogan pled guilty to a federal indictment on December 18, 1989. He was sentenced on January 27, 1992 and filed his malpractice complaint on September 27, 1997. The trial court applied the six-year statute of limitations, N.J.S.A. 2A:14-1, and ruled that the limitations period began to run when McGrogan pled guilty rather than on the sentencing date. McGrogan appeals from the judgment dismissing his complaint.
This appeal initially was calendared in June 1999. In an unpublished opinion we raised sua sponte the following issues: (1) whether N.J.S.A. 2A:14-2, establishing a two-year limitations period for injuries to the person, is applicable rather than the six-year period specified in N.J.S.A. 2A:14-1; and (2) whether an action for *257 legal malpractice can be sustained when the subject conviction has not been reversed or vacated. We ordered the parties to file supplemental briefs on these issues, and the appeal was re-argued. We now affirm.
The material facts are not in dispute. McGrogan was a plumbing contractor and a member of the Wayne Township Planning Board. In 1988 he was charged with conspiring with other Wayne officials to extort money from developers who had projects in Wayne Township. It appears that defendant Till began representing McGrogan at that time.
On February 2, 1989, McGrogan was indicted. The indictment was in four counts. A superseding indictment was filed on April 6, 1989. On April 26, 1989, Till terminated his representation of McGrogan and the court appointed Lawrence Lustberg, a federal public defender, as McGrogan's new lawyer. McGrogan entered into a written plea agreement with the Justice Department dated December 4, 1989. Pursuant to that agreement, he pled guilty to count three of the superseding indictment on December 18, 1989. Count three charged that McGrogan conspired with Louis Messercola, the Mayor of Wayne Township, and with Thomas Acquaviva, also a member of the planning board, to extort money from a joint venture "engaged in a project to construct residential apartment buildings" in Wayne. McGrogan admitted that he received a $10,000 bribe from the joint venture. He retained $5,000, Messercoca received $4,500, and Acquaviva kept $500.
The plea agreement did not include a sentencing recommendation, but the government agreed to dismiss other charges. McGrogan agreed to cooperate with the government and provide evidence against others. On January 27, 1992, the court sentenced McGrogan to an eighteen-month prison term "on condition that the defendant be confined in a community treatment center (Halfway House) for a period of Four (4) months, the execution of the remainder of the sentence of imprisonment is hereby suspended and the defendant is placed on Probation for a period of five years." McGrogan was required to perform 200 hours of community service per year of probation and to pay a fine of $5,000.
On September 2, 1997, McGrogan commenced this action against Till and his law firm. McGrogan's core contentions are contained in paragraphs three and four of the first count of his complaint and in paragraphs two and three of the second count. We reproduce them here:
3. During the course of his representation of the plaintiff, Raymond McGrogan, the defendant, Peter Till failed to properly and adequately communicate with the prosecuting authorities and investigating authorities of the Office of the United States Attorney and did fail to properly and adequately advise and counsel the plaintiff, Raymond McGrogan, with respect to offers of immunity and other offers involving cooperation of Raymond McGrogan with the United States Government and did otherwise in his representation of Raymond McGrogan fail to conform to that standard of competence and reasonable skill in the legal profession involving the representation of defendants as Till represented himself as possessing and otherwise failed to provide adequate competent, diligent and timely representation to the plaintiff and did otherwise deviate from accepted standards of legal practice which resulted in the plaintiff, Raymond McGrogan, being indicted on Four Criminal Counts and ultimately being compelled to plead Guilty to one such count, being stigmatized with a criminal conviction, suffer a loss of liberty, all of which would have been avoided had the defendant, Peter Till, provided proper, adequate and competent representation to the plaintiff Raymond McGrogan.
4. As a direct and proximate result of the actions and inactions of the defendant, Peter Till, as aforesaid, the plaintiff, *258 Raymond McGrogan, was caused to be Indicted, incur a criminal record, lose his liberty, expend time in public service and otherwise sustained economic and emotional loss resulting from the negligent professional representations and course of conduct by the defendant, Peter Till.
2. The defendant, Peter Till did negligently represent and mismanage the representation of the plaintiff by failure to adequately and properly advise the plaintiff of the available opportunities to cooperate with the government and to avoid a criminal conviction and did otherwise fail to properly advise the defendant of offers and invitations provided by the Federal Government and is responsible to the plaintiff pursuant to N.J.S.A. 2A:13-4.
3. As a direct and proximate result of the actions and inactions of the defendant, Peter Till, as aforesaid, the plaintiff, Raymond McGrogan, was caused to be Indicted, incur a criminal record, lose his liberty, expend time in public service and otherwise sustained economic and emotional loss resulting from the negligent professional representations and course of conduct by the defendant, Peter Till.
I
The primary issue is when did the statute of limitations begin to run on plaintiffs' legal malpractice action. That was also the issue in Grunwald v. Bronkesh, 131 N.J. 483, 621 A.2d 459 (1993). Grunwald involved a claim arising out of a proposed sale of realty by Grunwald to Resorts International Hotel and Casino, Inc. Resorts signed an option agreement but also inadvertently signed the contract attached to the option agreement. Grunwald alleged that his lawyer, defendant Bronkesh, advised him that Resorts was bound by the contract it had signed. When Resorts declined to acquire the property, Grunwald sued Resorts, but lost. Plaintiff appealed the judgment, and the Appellate Division affirmed. The issue was whether plaintiff's cause of action against Bronkesh accrued when the trial court ruled against plaintiff or when the Appellate Division affirmed the trial court judgment.
In Grunwald, our Supreme Court noted that "a legal-malpractice action accrues when an attorney's breach of professional duty proximately causes a plaintiff's damages." Id. at 492, 621 A.2d 459. The discovery rule, however, "postpone[s] the accrual of a cause of action when a plaintiff does not and cannot know the facts that constitute an actionable claim." Ibid. The Court observed that knowledge in the context of the discovery rule "involves two key elements, injury and fault." Id. at 492-93, 621 A.2d 459.
Thus, the discovery rule encompasses two types of plaintiffs: those who do not become aware of their injury until the statute of limitations has expired, and those who are aware of their injury but do not know that it may be attributable to the fault of another.
[Grunwald, supra, 131 N.J. at 493, 621A.2d 459.]
The Grunwald Court held that the discovery rule applied to legal-malpractice actions and the limitations period "begins to run only when the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim." Id. at 494, 621 A.2d 459.
Regarding the element of injury, the Court observed that an adverse judgment may constitute actual damage, but "a client may suffer damages, in the form of attorney's fees, before a court has announced its decision in the underlying action." Id. at 495, 621 A.2d 459. "Therefore, although an adverse judgment may increase a plaintiff's damages, it does not constitute an indispensable element to the accrual of a cause of action." Id. at 495-96, 621 A.2d 459.
*259 The Court concluded:
Applying the foregoing principles we conclude that damage occurred when Resorts refused to close on the property after Grunwald had bypassed another offer. Grunwald then suffered further damages in the form of litigation costs in the underlying action. The element of knowledge of fault was satisfied when the Chancery Division delivered its opinion in the underlying action in Grunwald's presence. When that court declared that "Grunwald should not have reasonably relied on the delivery of the option and the agreement as he did," Grunwald knew or should have known that his damages were attributable to Bronkesh's negligent advice. In addition, we find that the Chancery Division's opinion notified Grunwald of the facts underlying a legal-malpractice cause of action. A plaintiff's cause of action is not deferred until he or she learns the legal effect of those facts. Burd [v. New Jersey Tel. Co.], supra, 76 N.J. [284] at 291-92, 386 A.2d 1310 [1978].
[Id. at 500, 621 A.2d 459.]
Grunwald is a fitting template for the present case. We conclude that injury occurred when McGrogan was indicted in February 1989. McGrogan's civil complaint alleged that "Peter Till failed to properly and adequately communicate with the prosecuting authorities ... and did fail to properly and adequately advise and counsel the plaintiff, Raymond McGrogan with respect to offers of immunity and other offers involving cooperation of Raymond McGrogan with the United States Government...." Plaintiff repeated this theme in the second count which alleged that Till failed to advise McGrogan "of the available opportunities to cooperate with the government and to avoid a criminal conviction."
The sentencing memorandum filed by Lustberg on McGrogan's behalf stressed McGrogan's cooperation with the government and criticized Till. It stated:
In fact, Mr. McGrogan's cooperation with the government would have begun much earlier had prior retained counsel not steadfastly advised him against it, urging him to fight the charges, failing to disclose the advantages of cooperating, and precluding him from following his instincts to voluntarily testify in the grand jury. That advice, apparently given pursuant to the attorney's stated policy of not cooperating with the government, cost Mr. McGrogan over $20,000 and not only resulted in his indictment, but also precluded him from receiving a more favorable plea agreement, possibly even immunity. And, while Mr. McGrogan cannot escape responsibility for the strategy pursued, it would be most unfair to visit the errors of his lawyer upon him. Yet, that might well be the result of imposing a custodial sentence in this case.
The complaint and the sentencing memorandum specifically mention the indictment as one of the adverse consequences of Till's alleged negligence. The memorandum also refers to the $20,000 in legal fees paid to Till before Lustberg was appointed. As previously indicated, McGrogan was indicted in February 1989, and it is a fair inference that Till's legal fees accrued before April 1989 when Lustberg was appointed. Therefore, McGrogan's "injury" occurred more than six years before he filed the malpractice complaint.
McGrogan's knowledge of Till's alleged fault as a contributing cause of his injury was established no later than March 22, 1991. On that date, McGrogan sent a letter to United States District Court Judge Alfred J. Lechner, Jr. regarding a civil complaint filed by Wayne Township against McGrogan and others. In the letter McGrogan savaged Till.[1] McGrogan stated:
*260 I paid more than $24,000 in attorney's fees to Peter W. Till, Esq., who did little or nothing for me. In fact, Mr. Till refused to permit me to cooperate with the government. If I had cooperated, as I have since done to the best of my ability, I believe that I would not have been indicted.
McGrogan's complaint was filed more than six years after this letter. Consequently, it was not timely filed, even if the six-year limitations period were applicable.
II
We also conclude, as an alternative ground for our affirmance of the judgment, that the two-year limitations period applies. Thus, even if the cause of action accrued when McGrogan was sentenced, the complaint was filed more than two years later.
N.J.S.A. 2A:14-2 provides:
Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.
In contrast, the six-year statute applies to actions "for trespass to real property, for any tortious injury to real or personal property ... for any tortious injury to the rights of another not stated in section[ ] 2A:14-2... or for recovery upon a contractual claim or liability...." N.J.S.A. 2A:14-1.
The six-year statute has been applied to legal-malpractice actions in which the primary injury is economic. Thus, the six-year statute was applied in Grunwald, supra, involving a real estate transaction. See also Mant v. Gillespie, 189 N.J.Super. 368, 460 A.2d 172 (App.Div.1983) (real estate transaction); Carney v. Finn, 145 N.J.Super. 234, 367 A.2d 458 (App.Div. 1976) (workers' compensation claim); Fuschetti v. Bierman, 128 N.J.Super. 290, 319 A.2d 781 (Law Div.1974) (failure to commence personal injury action). In Carney, supra, we held that the six-year statute applied to an attorney's alleged mishandling of a workers' compensation claim because the attorney's negligence caused "pecuniary loss," not personal injury. 145 N.J.Super. at 236, 367 A.2d 458.
A medical-malpractice action, however, is governed by the two-year period. Lynch v. Rubacky, 85 N.J. 65, 424 A.2d 1169 (1981); Knutsen v. Brown, 93 N.J.Super. 522, 226 A.2d 460 (Law Div. 1966), aff'd, 96 N.J.Super. 229, 232 A.2d 833 (App.Div.1967). The critical difference between legal and medical malpractice, for purposes of applying different limitations periods, is the difference between economic injury and personal injury.
In Montells v. Haynes, 133 N.J. 282, 627 A.2d 654 (1993), the Court expressly recognized that in determining the applicable limitations period "[o]ur focus is on the nature of the injury, not the underlying legal theory of the claim." Id. at 291, 627 A.2d 654. At issue was whether the six-year or two-year statute applied to a claim under New Jersey's Law Against Discrimination (LAD). There, plaintiff relied specifically on language in the six-year statute covering "tortious injury to the rights of another not stated in section 2A:14-2." The Court defined the difference between the two statutes:
The question becomes whether injuries under LAD are more like an "injury to the person" under N.J.S.A. 2A:14-2 or like injuries under N.J.S.A. 2A:14-1, specifically those arising from breach of contract or from "any tortious injury to the rights of another not stated in sections 2A:14-2...." In separating "injury to the person" from "tortious injury to the rights of another," the Legislature essentially distinguished personal injuries involving physical or emotional harm from those involving economic harm. Accordingly, courts have viewed *261 "tortious injury to the rights of another" as applying primarily to actions for economic loss.
[Id. at 291, 627 A.2d 654 (citation omitted).]
In the present case, McGrogan contends that Till's negligence was the proximate cause of McGrogan's indictment and eventual conviction and sentence. We are persuaded that the consequences of Till's alleged malpractice qualify as personal injuries. They include elements of emotional harm, stress, anxiety, embarrassment, and impairment of personal relationships. These consequences are analogous to the injuries suffered by a victim of libel or slander, causes of action governed by a one-year limitations period. N.J.S.A. 2A:14-3. Moreover, incarceration is a personal injury. See Earl v. Winne, 14 N.J. 119, 132, 101 A.2d 535 (1953) (holding that an action for false imprisonment is governed by the two-year limitations period). We find additional support for application of the two-year statute in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) which held that the limitations period for personal injuries is applicable to all civil rights claims under 42 U.S.C.A. § 1983, though "the § 1983 remedy encompasses a broad range of potential tort analogies, from injuries to property to infringements of individual liberty." Id. at 276-77, 105 S.Ct. at 1947, 85 L.Ed.2d at 266-67. See Cito v. Bridgewater Tp. Police Dep't, 892 F.2d 23, 25 (3rd Cir.1989) (applying two-year statute to civil rights claim under § 1983 and § 1985); cf. Rumbauskas v. Cantor, 138 N.J. 173, 182, 649 A.2d 853 (1994) (applying the two-year limitations statute to an invasion of privacy claim, characterized as "intrusion on seclusion" based on stalkings, surveillance and threats of violence, and explaining that defendant's actions "struck directly at the personhood of plaintiff").
Concededly, a criminal indictment and conviction may generate economic injury. Nevertheless, those consequences are incidental to and flow from the personal injury caused by a criminal prosecution, including disrepute in the community. Most personal injuries, whether from an act of medical malpractice or an automobile collision, also cause economic loss, but that fact does not preclude application of the two-year statute.
Finally, we note that application of the two-year statute is consistent with the rationale underpinning statutes of limitations. They are enacted "to protect against the litigation of stale claims." Grunwald, supra, 131 N.J. at 497, 621 A.2d 459. A claim for legal malpractice in a case more typical than McGrogan's may not accrue until a conviction is overturned on direct appeal or on an application for post-conviction relief. See R. 3:22-1 et seq. A PCR application may be made anytime within five years of a conviction. R. 3:22-12. Applying a six-year limitations period to the malpractice claim could result in a timely filing ten or more years after the act of alleged attorney negligence. As Justice Clifford observed in Grunwald, "[a] system that would permit a plaintiff to commence a malpractice claim fifteen years after an attorney renders allegedly negligent advice is simply unacceptable." Id. at 497, 621 A.2d 459. Application of the two-year statute will mitigate undue delay in the litigation of these claims.
III
As previously indicated, one of the issues we raised sua sponte was whether a convicted person may maintain an action for legal malpractice before the conviction has been reversed or otherwise vacated. In Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993), the Oregon Supreme Court required exoneration as a prerequisite to a malpractice action.
In Stevens, the issue was "at what point does the statute of limitations for legal malpractice begin to run with respect to a lawyer's defense of a client who has been *262 convicted in a criminal case?" Id. at 557. The Supreme Court of Oregon held:
[I]n order for one convicted of a criminal offense to bring an action for professional negligence against that person's criminal defense counsel, the person must, in addition to alleging a duty, its breach, and causation, allege "harm" in that the person has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.
[Id. at 566.]
The policy reasons underlying the court's holding were thoughtfully articulated. The analysis began with the observation that while the state legislature had given no express directives on the issue, the collective body of Oregon substantive and procedural criminal law established that it is the public policy of this state to treat any person who has been convicted of any criminal offense as validly convicted unless and until the person's conviction has been reversed, whether on appeal or through post-conviction relief, or the person otherwise has been exonerated. Any policy choice that this court might make concerning when a person ... should be deemed to have been harmed by legal malpractice on the part of the person's criminal defense counsel should respect, and not hinder, the valid policy choices already made by the legislature.
[Id. at 561.]
The court explained why it adopted this rule. First, it acknowledged the existence of an expansive body of federal and state constitutional law in the area of ineffective assistance of counsel, which the court determined must be applied before any tort-based theory is explored. Id. at 561-562. Second, the Court acknowledged the special status of a criminal conviction. It remarked:
In our society, no other legal outcome of the trial process is so difficult to obtain. Yet, to allow a person convicted of a criminal offense to sue that person's lawyer without having first overturned the conviction would mean that the courts would be permitting relitigation of a matter that is supposed to be settled: The complaining party is deemed by the law to be guilty. The panoply of protections accorded to the criminally accused (including direct appeal and post-conviction relief) is so inclusive, and the significance of a conviction so important to vindication of the rule of law, that it would appear most unusual to permit a person to prosecute a legal malpractice action premised on some flaw in the process that led to that person's conviction at the same time that the person's conviction remained valid for all other purposes.
[Id. at 562.]
Third, and perhaps most relevant to the present case, the Court observed:
At least one other consideration is pertinent. However a person comes to be convictedwhether by a plea to the charge, through a plea agreement, or after a trial to judge or juryfor the purposes of a case like this one, the person convicted is deemed equally guilty. Many prisoner complaints in this area will relate to the failure of counsel to get a "better deal" for the accused. But many "better deals" will relate to terms of a sentence or of probation. Such complaints would not result in a reversal of a conviction, either outright or for a new trial. It is only in these latter circumstances, however, that a legal malpractice action will be available. Although a plaintiff may wish that he or she had gotten a better deal, we do not consider it appropriate, outside of circumstances where the kind of relief that we have described is available under the post-conviction relief law, to treat a convicted offender as having been caused "harm" in a legally cognizable way by any disposition of that person's case that was legally permissible.
[Id.]
*263 As the survey of law in Stevens, supra, indicates, some jurisdictions have adopted similar requirements, while others have expressly rejected them. Id. at 562-566 (comparing Shaw v. State, Dep't of Admin., PDA, 816 P.2d 1358 (Alaska 1991), appeal after remand, 861 P.2d 566 (Alaska 1993); and Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, 511 N.E.2d 1126 (1987) and Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783 (1991) (favoring similar requirements) with Jepson v. Stubbs, 555 S.W.2d 307 (Mo.1977) and Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989) (rejecting such requirements)).
Recently, the Indiana Court of Appeals also rejected the rationale of Stevens. In Silvers v. Brodeur, 682 N.E.2d 811 (Ind. App.), transfer denied, 690 N.E.2d 1189 (Ind.1997), the Indiana intermediate appellate court likewise surveyed the range of holdings among the states.
In partially summarizing the concerns of some jurisdictions and in concluding that Indiana would not adopt the "majority" rule requiring exoneration as a prerequisite to bringing a legal malpractice action, the Silvers court explained:
Although supported by compelling policy concerns, the approach taken by many other jurisdictions regarding the statute of limitations for legal malpractice actions does nothing to further the goals of prompt presentation of claims or seasonable notice to defendants. Instead, the majority's approach, which tolls the statute of limitations until the defendant has been exonerated of his underlying conviction, essentially permits lawsuits on the basis of an attorney's negligence for an indefinite period of time. As Justice Unis of the Supreme Court of Oregon noted in his concurring opinion in Stevens:
Under the majority's "no-exoneration/no-harm" rule, claims by convicted persons for legal malpractice may never be stale, because exoneration of the criminal offense through reversal or vacation after one month or after three decades may suddenly cause the claim to accrue. [citation omitted]
Additionally, the approach of tolling the statute of limitations until exoneration imposes a considerable hardship upon criminal defendants.
We also note that an attempt to establish an easy, bright-line test for determining the accrual of the statute of limitations by requiring exoneration fails in its application. In particular, those states which require exoneration do not specify at what point a criminal defendant is exonerated: when he achieves successful post-conviction relief, when he is retried and a different result is achieved, or when he can no longer be retried for the same crime....
In light of these problems, we decline [the] invitation to adopt the approach taken by many other states in Indiana. Instead, we believe that the well-settled discovery rule should govern the timeliness of legal malpractice actions by criminal defendants. Thus, a criminal defendant is required to file his malpractice action within two years of discovering the malpractice.
[Id. at 817-18.]
In the present case, McGrogan emphasizes that while the policy reasons behind Stevens, supra, and its counterparts are generally laudable, his is a case in which defendant allegedly failed to communicate an offer of immunity, which he would have accepted if he was made aware of it and which would have obviated his perceived need to plead guilty. Accordingly, plaintiff contends that application of the Stevens rule would be unfair.
These circumstances were presented in Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex.1995). There, Peeler pleaded guilty to tax fraud but subsequently sued her defense counsel; one of her allegations was that her attorney failed to tell her that the prosecution had offered her transactional immunity. Id. at 496. Plaintiff's *264 cause of action was dismissed by a lower court, which found that her own conduct was the sole cause of her damages, and that she had not previously sought to withdraw her plea or set aside her conviction. Id. at 496.
The Supreme Court of Texas affirmed the lower court's decision. While it was not altogether unsympathetic to plaintiff's circumstances, the Court stressed the public policy principle "that convicts may not shift the consequences of their crime to a third party" and that plaintiff at no time "even assert[ed] that she did not commit the acts which formed the basis of the matters charged." Id. at 498. The Court also affirmed the lower court's determination that since plaintiff was not exonerated, her illegal activities alone were the "sole proximate and producing causes of her indictment and conviction as a matter of law." Id.
Whether exoneration is a prerequisite to assertion of a claim of legal malpractice is an interesting issue. If it is a prerequisite, then, arguably, the cause of action would not accrue until exoneration. McGrogan, however, does not contend that he did not commit the crime. Therefore, exoneration would not occur in his case and accrual of the cause of action would not be postponed until then. Thus, our determination, for the reasons expressed in sections I and II of this opinion, that his complaint was not timely filed disposes of the case, and we need not decide the exoneration issue.
Affirmed.
NOTES
[1] We note that our opinion repeats one-sided allegations against Till. Because the complaint was dismissed as untimely, the credibility of plaintiff's allegations has not been tested. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264647/ | 744 A.2d 1233 (1998)
328 N.J. Super. 141
Yehuda AMIR, Plaintiff,
v.
Philip D'AGOSTINO, Violet D'Agostino and Brenda Goldstein, Defendants.
Superior Court of New Jersey, Chancery Division, Atlantic County.
Decided August 12, 1998.
*1234 Carl Valore, Linwood, for plaintiff Amir (Valore Law Offices Chartered).
Norman Zlotnick, Atlantic City, for deft. Brenda Goldstein (Mairone, Biel, Zlotnick & Feinberg).
John Palladino, Atlantic City, for defts. D'Agostinos (Hankin, Sandson & Sandman).
Frederic Shenkman, Atlantic City, for defts. MLM and the Gardners (Goldenberg Mackler & Sayegh).
Marianne Brown, Camden, for deft. Ocean Club Condominium Association (Dilworth Paxson Kalish & Kauffman, Cherry Hill).
L. ANTHONY GIBSON, J.S.C.
I. Nature of Action
By this action, plaintiff seeks to enforce individual deed restrictions relating to *1235 what uses are permissible and what products may be sold in the commercial units of a high-rise condominium. Because none of these restrictions are contained in the master deed, all of the answering defendants, other than the developer, resistplaintiff's efforts and seek a declaration that the covenants are unenforceable. The same defendants contend that the restrictions are unreasonably vague and that plaintiff lacks standing. These issues are before the court on cross-motions for summary judgment and raise questions of first impression relating to the requirements of the New Jersey Condominium Act.[1]
II. Factual Findings
Plaintiff, Yahuda Amir (Amir) is the owner of units R-20 and R-21 in the Ocean Club Condominiums. In both instances, his seller was G & A Associates. The defendants, Philip and Violet D'Agostino (D'Agostinos), are the owners of units R-25 and R-26. They purchased unit R-25 directly from the original developer, MLM Associates (MLM) and unit R-26 from Silvo and Jean Fernicola (Fernicolas). The Fernicolas had previously purchased the same unit from MLM. The D'Agostinos leased unit R-26 to defendant, Brenda Goldstein (Goldstein) in May of 1994 where she has been selling woman's clothing and other items ever since. It is her conduct which plaintiff seeks to restrict.
The Ocean Club is comprised of two high-rise towers and is located adjacent to the boardwalk in Atlantic City; it contains 726 residential units plus twenty-nine commercial units. Originally there was only one large commercial unit but in 1986, MLM subdivided that space into the current twenty-nine units and amended the master deed accordingly. Neither that amendment, the initial Public Offering Statement nor the Master Deed (filed in 1984) contained any of the restrictions on use or product sales that are the subject of the current action. However, as the commercial units were sold, MLM elected to utilize individual unit deeds to create what was intended to be a common scheme of covenants, purportedly designed to coordinate and divide the uses among the commercial space. Instead, what resulted was a complex, confusing and internally inconsistent set of restrictions which created significant disagreement as to their meaning and ultimately generated this and other litigation.
Each of the deeds presented to the court contains what is referred to as "Positive and Negative Restrictions and Covenants." These covenants not only restrict the type of commercial activity permitted in the units but they also limit the products that can be sold. In a separate portion of the deeds, entitled "Covenants and Restrictions," there is an enumeration of sixteen separate categories of restricted conduct presumably common to all units. Examples of the latter include a prohibition on activities that would increase the fire insurance on the premises; restrictions on advertising and promotional media and prohibitions against the sale of pornography.
Each set of covenants has a different group of beneficiaries. For example, the "Covenants and Restrictions" portion of the deed, by its terms, runs with the land and binds and inures to the benefit of the covenantor, its successors and assigns, as well as the Ocean Club Condominium Association. The beneficiaries of the "Positive and Negative Restrictions," are more limited and vary from deed to deed. In R-26, for example, the unit occupied by Brenda Goldstein, the occupants are given the exclusive right to operate a retail store engaged in the business of selling Christmas-related gifts and souvenirs. That restriction may not be changed without the approval of the seller, its successors or assigns and only then if the new use requested has not been acquired as an "exclusive" use by some other unit. Also, any *1236 change in the use cannot include any of twenty-four additionally enumerated prohibitions, including a prohibition on the sale of women's clothing. These restrictions, however, inure only to the benefit of the sellers (Fernicolas), their successors and assigns. Parenthetically, certain of these restrictions have never been followed.
The deed to R-25, the second unit owned by the D'Agostinos, contains sixteen separate negative restrictions. None of these restrictions prohibit the sale of women's clothing. These covenants specifically "run with the land" and inure to the benefit of the seller (MLM), the unit owner, their successors and the Condominium Association. The R-25 deed also contains "positive restrictions" which include uses that are both "exclusive" (except for unit R-23) and "non-exclusive." One of the non-exclusive items is women's wear (non-Italian) which is also subject to rights of Unit R-24 and R-20. Like the negative restrictions, these covenants "run with the land" and inure to the benefit of MLM, the unit owner, their successors and the Condominium Associations. This deed does not contain the "Covenant and Restriction" items contained in the Amir deed.
Although I have been presented with the deeds for only four out of the twenty-nine units, plaintiff has suggested and I have assumed that all the commercial deeds contain positive and negative covenants. Also, although plaintiff has not supplied a certification by the developer, I have likewise assumed that MLM intended to create a common scheme of positive and negative covenants so that the uses among the commercial units would be coordinated. Finally, I have accepted plaintiff's factual claim that when he purchased his unit he reviewed all of the other commercial deeds and proceeded on the assumption that he would have the exclusive right to sell certain items. Those items included shoes, bags, flags & banners, self-defense items, appliances, auto supplies, army and navy, prescription eye glasses, "and as such uses do not conflict with primary business operations of other Commercial Units." His exclusive rights bind his seller, G & A Associates and the respective successors of both the buyer and the seller. In a separate part of Amir's deed to R-20, he was also given the "non-exclusive" right to sell other products including T-shirts, sporting goods, jewelry, beach items and women's clothing. For the most part, however, Amir has not sold women's clothing unless one assumes that T-shirts and sweatpants fall into that category.
III. Legal Conclusions
As often noted, summary judgment will be granted only where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. R. 4:46-2, Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954). In this case, there are cross motions for partial summary judgment and neither side contends that the material facts are in dispute. Nevertheless, sharp disagreements exist as to the legal consequences of what occurred and a number of defenses have been raised regarding the enforceability of these covenants.
To resolve these disagreements, the following issues need to be addressed: (1) whether the developer's failure to include any of the restrictions in either the Public Offering Statement or the Master Deed precludes their enforceability; (2) whether plaintiff has standing to enforce these covenants; and (3) whether these provisions satisfy the specialized requirements relating to enforceability of restrictive covenants, such as the need for uniformity and clarity. Also to be addressed are the issues of laches, waiver and estoppel.
(1) Applicability of N.J.S.A. 46:8B-9(m)
From the outset, the primary focus of these cross-motions has been the defendants' contention that the covenants are not enforceable because of the developer's *1237 failure to include them in either the Master Deed or the Public Offering Statement. The essence of this contention is that the Condominium Act is explicit with respect to what is required regarding restrictions on use and occupancy and has mandated that all such limitations be placed in the master deed. N.J.S.A. 46:8B-9(m). This issue appears to be one of first impression.
N.J.S.A. 46:8B-9 outlines the requirements for what must be placed in a master deed and includes the following:
(m) such other provisions, not inconsistent with this act, as may be desired but not limited to restrictions or limitations upon the use, occupancy, transfer, leasing or other disposition of any unit (provided that any such restriction or limitation shall be otherwise permitted by law) and limitations upon the use of common elements.[2]
Although the plain meaning of this language would cover the types of restrictions in issue here, plaintiff resists such a reading by contending that the language is permissive and that, even if mandatory, would not prevent a developer from placing use restrictions in individual unit deeds. I disagree. It is true, as plaintiff argues, that condominium developers are not required to impose restrictions on use and occupancy and thus there is no obligation to include them in the master deed or otherwise. The relevant portion of the Condominium Act refers only to such provisions as "may be desired." On the other hand, if the developer or a condominium association does choose to impose such restrictions, the requirement that they be included in the master deed is mandatory. N.J.S.A. 46:8B-9 refers to what the master deed "shall set forth, ..." and as stated in Application of Howard Savings, 32 N.J. 29, 159 A.2d 113 (1960), where a statutory requirement is precise and all inclusive in its application, "there is no leeway for statutory interpretation." Id. at 48, 159 A.2d 113.
Such a reading nevertheless raises legitimate questions of legislative intent. The statute is not explicit as to the policy behind this requirement but presumably it serves the goal of ensuring that potential purchasers of condominium units are fully informed as to any conditions that may impact on their ownership. If so, it is understandable that the legislature would want potential purchasers to be on notice of any restrictions on use, occupancy, transfer and leasing. On the other hand, the Master Deed and the Public Offering Statement are not the only vehicles for achieving that. Notice can be accomplished through purchase agreements and grantor deeds. Also, since condominiums are intended to be dealt with by their owners in the same manner as any other parcel of real property, N.J.S.A. 46:8B-4, and since the uses to which real estate may be put can be legally controlled through deed restrictions, assuming the restrictions are reasonable, Davidson Bros. v. D. Katz & Sons, 121 N.J. 196, 207-211, 579 A.2d 288 (1990), one may question why condominium developers should be treated any differently.
To assume a legislative intent that would insist on the use of the Master Deed as the exclusive means by which to fulfill the public policy that presumably underlies this statute, seems particularly questionable when one seeks to apply it to non-developer owned units. Stated differently, should N.J.S.A. 46:8B-9(m) be read to preclude an individual unit owner's attempt to restrict the future use of his or her unit absent specific authorization in the master deed? Since individually created restrictions usually have little or no impact on unit owners outside of the originator's chain of title, it is difficult to discern what legitimate legislative goal would be served by such a requirement. Moreover, individual *1238 unit owners do not create master deeds, developers do. On the other hand, even if one assumes that N.J.S.A . 46:8B-9(m) was not intended to preclude private efforts to restrict the use or occupancy of a single condominium unit, such a distinction would not help the plaintiff here.
Regardless of how one seeks to define the scheme of restrictions that is before the court, clearly it represents something more than a simple agreement between an individual unit owner and his or her successors. These restrictions were the creation of the developer while the developer was in control of the governing process for this building. The fact that these restrictions have also been passed along to others, such as through the Fernicola/D'Agostino deed, does not alter that fact. If enforceable, they impact on all of the commercial units. Indeed, they may impact on all of the residential units as well. Significantly, one of the rationales advanced by plaintiff to support the enforceability of these covenants is that they represent a so-called neighborhood scheme. Regardless of the label, however, restrictions on the use of all of the commercial units in a high-rise condominium have the potential to impact the character of the entire building. As such, they would affect all unit owners, including the residential owners, none of whom would have notice absent a reference in the Master Deed or the Public Offering Statement.
It is the judgment of this court, therefore, that the restrictions in question must be included in the Master Deed and the Public Offering Statement. See N.J.S.A. 46:8B-9(m); N.J.S.A. 45:22A-28(4). Although the Condominium Act is not explicit in defining the consequences of a failure to comply with the mandates of N.J.S.A. 46:8B-9, it is clear that the Master Deed is intended to act as the defining document with respect to the rights and obligations of unit owners. Thanasoulis v. Winston Towers 200 Ass'n, Inc., 110 N.J. 650, 542 A.2d 900 (1988); Courts at Beachgate v. Bird, 226 N.J.Super. 631, 639, 545 A.2d 243 (Ch.Div.1988). Equally significant is the fact that all agreements that violate the provisions of the Act are deemed void. N.J.S.A. 46:8B-7. Thus, to have created the kind of pervasive and integrated scheme attempted here, MLM was obligated to include it either in the original master deed or as part of a subsequent amendment. Since in this case it did neither, the covenants are unenforceable. See generally, 560 Ocean Club v. Ocean Club Condominium Ass'n, 133 B.R. 310, 316 (D.N.J. 1991).
(2) Does Plaintiff have standing?
Although the above ruling effectively resolves these motions in defendants' favor, given the uniqueness of the statutory issue just discussed and the importance of the challenges that remain, all of the issues previously identified will also be addressed. The first of these is the question of plaintiff's standing. The essence of this challenge is that there is no legal relationship between Amir and the parties he seeks to restrain which would give him the right to enforce deed restrictions outside of his chain of title. As already noted, the negative restrictions that Amir seeks to enforce involve prohibitions on sales that are contained in the D'Agostino deed to Unit R-26. However, those restrictions inure only to the "benefit of the Sellers, its successors and assigns." Amir was not the seller, the Fernicolas were. Nor is Amir a successor or assignee of the Fernicolas. Although Amir has contended that he would be getting an assignment of MLM rights, he has not done so to date. However, even if he did, it would not help. MLM is not a successor to the Fernicolas; it is a predecessor. Although there are other restrictions in the D'Agostino deed that "run with the land" and that would presumably be enforceable by parties other than the Fernicolas, the restrictions in question are not among them. See generally, Olson v. Jantausch, 44 N.J.Super. 380, 387, 130 A.2d 650 (App.Div.1957); Annotation, "Who may enforce restrictive covenants or *1239 agreements as to use of property," 51 A.L.R.3d 556, 561-566 (1973).
Amir contends that he has standing even without the purported assignment. It is his position that he is the intended beneficiary of the restrictive covenants in the Fernicola/D'Agostino deed. It is true that persons not a party to a transaction may nevertheless be the intended beneficiary of a covenant and thereby gain standing to enforce it. 20 AmJur2d Covenants, Conditions, etc. Sec. 293 (1965). To succeed in such a setting, however, plaintiff must, among other things, show that he is the intended beneficiary of the covenant and it is his burden to demonstrate that status. See generally, Roehrs v. Lees, 178 N.J.Super. 399, 429 A.2d 388 (App.Div.1981). In this case, since there is some evidence to support such an intent, I will assume it to be true. It is also necessary, however, that the owners of the burdened property be on notice of the restriction. In this case, the D'Agostinos, as the purchasers of the two commercial units, had reason to know that they were part of a pattern of rights and obligations relating to commercial units beyond their own. Since they were given the exclusive right to sell Christmas related gifts and souvenirs when they acquired Unit R-26, the D'Agostinos would have had to understand that their exclusivity would have precluded others from such uses. Conversely, to the extent that they were prohibited from selling certain items, they had reason to know that those restrictions would benefit some other unit owner or owners.
On the other hand, the intended beneficiary could have simply been the sellers, the Fernicolas. Indeed, that is what the deed said.[3] However, since I am considering the within motions from the perspective of the D'Agostinos application, I am required to view the facts most favorably to the plaintiff. Such a perspective would normally require that I assume that the D'Agostinos knew that their use restrictions were intended to benefit unit owners other than merely the Fernicolas. To so conclude here, however, requires the court to ignore the plain language of the deed. This deed indicates that these covenants are to benefit only the seller and the seller's successors and assigns. Where the unrebutted language of a document memorializing the intent of the parties is contrary to the inference suggested by a party, the inference need not be adopted, even in a summary judgment setting. See generally Maihack v. Mehl, 141 N.J.Eq. 281, 282-83, 57 A.2d 44 (Ch.Div.1948).
There are two other "standing" issues that merit attention; one relates to the rights plaintiff could arguably acquire through MLM; the second involves plaintiff's contention that he is the beneficiary of a so-called neighborhood scheme. Although not argued in quite this way, it would appear that although Amir cannot show that he was the intended beneficiary of the restrictive covenants vis a vis the Fernicola/D'Agostino deed, there is an open question as to whether he can do so through the original MLM/Fernicola deed. That deed, dated April 21, 1989, contains the same covenants that were later placed into the Fernicola/D'Agostino deed. Since the covenants running in favor of the seller on the MLM/Fernicola deed inure to MLM's benefit, the question arises as to whether MLM could effectively assign those rights to Amir, as MLM has contended it would (but never has). If so, then Amir would have standing to assert a contractual claim against the Fernicolas.
The problem with this theory is that the Fernicolas are no longer the owners of Unit R-26; nor are they parties to this action. More importantly, the MLM/Fernicola deed does not create a cause of action against Fernicola's assigns or successors, at least not with respect to the restrictions in question. Unlike the "Covenants *1240 and Restrictions" (dealing with fire insurance, advertising, pornography, etc.) which bind the successors and assigns of both the seller and the buyers, the portion of the deed containing the positive and negative restrictions, (the restrictions plaintiff seeks to enforce here) "inure only" to the benefit of the Seller, its "successors and assigns." Predecessors to the seller and assigns of buyer are not mentioned.[4]
As for the "neighborhood scheme" theory, assuming such a scheme has been validly created and is not against public policy, restrictions on use that are part of that scheme may be enforced by all of the owners within the area intended to be benefitted. See Olson v. Jantausch, supra at 386, 130 A.2d 650. This is true despite the fact that there is no direct contractual link between the property owner seeking the enforcement and the owner against whom the enforcement is sought. Id. at 387, 130 A.2d 650. Of course, the burden of establishing such a scheme is on the party seeking to rely on it. Frisch v. Rutgers Village, 8 N.J.Super. 392, 402-03, 73 A.2d 83 (Ch.Div.1950). In this case, that is the plaintiff. In addition, the proof of the common grantor's intent to create a neighborhood scheme must be clear. Olson v. Jantausch, supra at 386, 130 A.2d 650. Finally, the proponent must demonstrate that the purported scheme is (a) universal; i.e., the restrictions must apply to all properties of a like character; (b) it must be reciprocal so that the restrictions constitute a benefit to all lots involved which are subject to the burden imposed; and (c) it must be reasonably uniform as to the restrictions imposed. The restrictions need not be identical but if there are any variations, they must be such so as not to create an inequitable burden or benefit. Ibid.
In assessing the facts of this case against these standards, it is my view that a neighborhood scheme was never validly established. To begin with, the purported scheme lacks uniformity and clarity. Although the "clarity" issue will be developed further in a separate part of this opinion, it should be initially noted that plaintiff has not cited any authority which would support a scheme as convoluted as this one. Here, there are negative covenants, positive covenants, exclusive rights, non-exclusive rights, covenants that run with the land, covenants that do not, covenants subject to change and others that are not. Attempts to determine the exact nature of what is and what is not permitted requires a painstaking effort and even at that, inconsistencies remain. Secondly, the court cannot tell, based on the present proofs, whether these restrictions are universal. Only four of the twenty-nine unit deeds have been supplied. As for reciprocity, although as already noted, this court is willing to assume that the original grantor, MLM, intended to create a scheme of integrated uses, the language of the deeds narrowly limits the beneficiaries of the covenants and thus fails to achieve true reciprocity. See generally, Blaine v. Ritger, 211 N.J.Super. 644, 512 A.2d 553, cert. denied, 105 N.J. 546, 523 A.2d 183 (1986).
It is therefore the conclusion of this court that plaintiff does not have standing to enforce the covenants in question. Clearly, there is no contractual relationship between Amir and the D'Agostinos. Nor do the deeds themselves indicate that the owners of the Amir units are the intended beneficiaries. Indeed, the express language of the D'Agostino deeds precludes such an inference. In addition, plaintiff has not acquired any contractual rights from the developer which would solve the problem and has failed to prove an effective neighborhood scheme based on the lack of universality and clarity. Having so concluded, this court has nevertheless *1241 assumed standing for purposes of addressing the issue already discussed (the Condominium Act) and the one to follow (the specialized requirements for restrictive covenants).
(3) Do the restrictions satisfy the specialized requirements for restrictive covenants?
As already noted, lack of clarity has relevance beyond the issue of standing. Because the law has historically frowned on the placement of restrictions on the alienation of land, New Jersey courts have refused to enforce covenants that fail to fulfill several prerequisites. Davidson Bros. Inc. v. D. Katz & Sons, 121 N.J. 196, 211, 579 A.2d 288 (1990). In Davidson, our Supreme Court outlined eight different considerations which relate to the reasonableness and therefore the enforceability of such covenants. Although it is not necessary that this court treat all of them, at least three of the mandated inquires are relevant here:
(1) What was the intention of the parties when the covenant was executed and did the parties have a viable purpose which did not at the time interfere with existing commercial laws, such as antitrust laws, or public policy.
(2) Is the covenant reasonable concerning area, time or duration?.
(3) Does the covenant clearly and expressly set forth the restrictions? [Id. at 211, 579 A.2d 288.]
With respect to item one, this court has assumed the intent and the valid business purpose that plaintiff has argued. However, given the court's conclusion that the Condominium Act requires such restrictions to be placed within the master deed, at least when created by the developer, one cannot reasonably conclude that MLM's attempt to fulfill that purpose outside of the master deed did not conflict with existing public policy. See N.J.S.A. 46:8B-9(m).
The second factor relates to "reasonableness" as that term relates to area, time and duration. Here, area and time are not a problem but duration is. On their face, these covenants are perpetual. To tie up commercial units on the Boardwalk of Atlantic City with positive and negative covenants relating to restrictions on use and sales that can never be varied would seem to be at least questionable, if not presumptively unreasonable. Who is to say, for example, that there will always be a market for a store which can sell nothing but Christmas related gifts and souvenirs. If not, at some point this unit will become unuseable. However, such an assumption may not be appropriate in a summary judgment setting and accordingly, the court will not rely on this factor.
The third and the most critical defect relates to clarity. There is no question that one of the primary requirements for enforcement of restrictive covenants is that they make clear exactly what is intended. Ibid.; Berger v. State, 71 N.J. 206, 215, 364 A.2d 993 (1976). The restrictions in question fail that test. Certain aspects of these covenants that undermine the lack of clarity have already been discussed. See discussion at pp. 155-56, 744 A.2d at 1240-41. Not only are the deeds inconsistent, internally and otherwise, but the fact that the covenants are as detailed and as complex as they are, makes comprehension difficult even for the sophisticated reader. Although some of the prohibitions are clear, many are not. For example, does Amir's exclusive night to sell tote bags conflict with D'Agostinos sale of pocket books? Also, does a prohibition on the sale of women's clothing preclude the sale of sweatpants and bathing suits?
There are also problems with what is exclusive and what is non-exclusive. As the owner of Unit R-20, Amir has the "non-exclusive" right to sell women's clothing. On the other hand, as the owner of Unit R-21, he is given the "exclusive" right to sell sweat pants, T-shirts, athletic shoes and athletic wear. All of these items, at least arguably, may fall within *1242 the category of women's clothing. If so, how can one unit have an exclusive right to sell certain items and another unit have a non-exclusive right to sell some of the same items? Another example is R-21 which is given the exclusive right to sell "gift items." Gift items include jewelry. However, this right is subject to various prohibited items listed in Exhibit C of that deed. The prohibited list specifically references jewelry and art objects in excess of $50.00. Thus by a somewhat convoluted path, the R-21 deed gives Amir the "exclusive" right to sell "gift items" and gift items include jewelry but not jewelry and art objects in excess of $50.00. Moreover, R-21 also has a "non-exclusive" right to several other items, including, interestingly enough, jewelry and watches under $50.00. Thus, R-21 has both the exclusive and non-exclusive right to sell jewelry under $50.00. Again, plaintiff has not sought to explain how these two rights can co-exist.
The conflicts continue. Although Amir's deed gives him the non-exclusive right to sell gift items, cigarettes, salt water taffy, panty hose and related products and sun protection, each of these items has qualifiers. For example, the sale of cigarettes may not exceed 5% of the total display area. Such sales are also subject to the consent of the owner of R-22. Finally, such uses may "not conflict with primary business operations of other Commercial Units as set forth in Exhibit C." Exhibit C lists twenty different categories of prohibited uses and at least forty different prohibited items. Presumably one has to check to see what the other commercial units are selling and what their "primary business operation" is in order to determine what the rights given here include.
As already noted, the parts of these deeds that identify the beneficiary of the various covenants are similarly inconsistent. For example, in the deed to R-20, the "exclusive" rights benefit not only the seller and the purchaser but also the respective successors of either party. The same is true of the "non-exclusive" rights. In contrast, the covenants relating to the prohibited uses "run with the land" and inure to the benefit of the grantor, its successors and the Condominium Association. Thus, each set of covenants has a different set of named beneficiaries. The same pattern exists in the R-21 deed.
Further variations exist in the D'Agostino deeds. In the R-25 deed, for example, the "exclusive" rights granted to the D'Agostinos, "run with the land" and inure to the benefit of MLM Associates, the Unit owners, their successors and the Condominium Association. The same is true with regard to the non-exclusive rights. In the deed for Unit R-26, however, the exclusive rights inure only to the benefit of the sellers, its successors and assigns. Nor does this covenant run with the land or inure to the purchaser's assigns or successor. The same is true of the covenant relating to prohibited uses. Most importantly, and as already noted, the covenant prohibiting the sale of women's clothing runs only to the sellers, the Fernicolas, their successors and assigns, none of whom are parties to this action.
(4) Laches
The final defense raised by the cross-movants is laches. In support of this defense, defendants point to the fact that the D'Agostinos acquired Unit R-26 in May of 1994 and immediately leased it to Brenda Goldstein. Once in possession, Goldstein began the sale of the items that plaintiff now seeks to restrain, whereas plaintiff's suit and his subsequent effort to obtain a preliminary injunction did not occur until fifteen months later. The question then is whether that delay should bar the present suit. It is my judgment that it should not. In its most fundamental sense the doctrine of laches is a specialized form of estoppel. Crandol v. Garrison, 115 N.J.Eq. 11, 20, 169 A. 507 (Chancery 1934). It has been described as inexcusable delay in asserting a night. Atlantic City v. Civil Service Com., 3 N.J.Super. 57, 60, 65 A.2d *1243 535 (App.Div.1949). To successfully assert a laches defense, however, the proponent must demonstrate not just delay but also significant prejudice resulting from that delay. Gladden v. Pub. Emp. Retirem. Sys. Trustee Bd., 171 N.J.Super. 363, 370-71, 409 A.2d 294 (App.Div.1979). No such showing has been made here and accordingly the laches defense fails.
(5) Waiver and Estoppel
Left to be addressed are the issues of waiver and estoppel. Although neither issue was raised by counsel, during oral argument the court questioned whether the D'Agostinos' presumed enjoyment of the benefits extended by the deeds would constitute either a waiver of any statutory protection or otherwise estop them from resisting the current effort to enforce these covenants. All sides were invited to address these issues, which they did. Having reviewed that input, however, I have concluded that neither concept applies. For example, for waiver to apply, plaintiff would have to have shown that the D'Agostinos knew that there was a statutory protection available and then elected to waive it. Also, conduct that purports to constitute a waiver must be clear and unmistakable. See West Jersey Title & Guaranty Co. v. Industrial Trust Co., 27 N.J. 144, 152, 141 A.2d 782 (1958); In re: Ziyambe, 200 B.R. 790 (Bkrtcy.D.N.J. 1996). No such showing has been made. As for estoppel, that doctrine is triggered when one party changes its position in reliance on another party's conduct and where the repudiation of that conduct would violate the demands of justice and work a prejudice on the relying party. Columbia Savings & Loan v. Easterlin, 191 N.J.Super. 327, 342, 466 A.2d 968 (Ch. Div.1983), aff'd. 198 N.J.Super. 174, 486 A.2d 911 (App.Div.1985). Once again, no showing of these elements has been made here.
IV. Conclusion
There are several levels upon which I have examined the viability of these covenants and in each instance, my conclusion has been that they are unenforceable. Initially, they fail because the developer never included them in either the master deed or its subsequent amendments. See N.J.S.A. 46:8B-9(m). It may be that an otherwise valid deed restriction, reasonable in scope and imposed by individual unit owners, may not violate the Condominium Act. However, in a setting where the developer attempts to impose a complex scheme of use and sale restrictions that purports to bind an entire class of units, the statute applies. Statutory requirements aside, I am also convinced that the covenants lack the requisite clarity; that is, these covenants are too confusing and inconsistent to warrant either the support of this court or to satisfy the standards imposed by our case law. Finally, in view of the explicit and limiting language of the deeds, and the absence of a valid contractual link, it is my judgment that the plaintiff lacks standing. I have nevertheless chosen to assume standing for purposes of the previous analysis.
Accordingly, plaintiff's motion will be denied; defendants' cross motions will be granted and the within action will be dismissed. No costs will be awarded.
NOTES
[1] This opinion represents the formalization of a bench ruling rendered on May 20, 1998.
[2] Similar requirements apply to the Public Offering Statement. For example, see N.J.A.C. 5:26-4.2(15) mandating that the POS contain significant terms and restrictions affecting each unit.
[3] No certifications have been supplied from the representatives of MLM, the Fernicolas or the D'Agostinos as to what the D'Agostinos were told about any of this.
[4] Although there is a comparable concept called "equitable servitude" that allows a prior grantor to enforce restrictive covenants against subsequent grantees with notice, given the lack of an assignment, that issue is also academic. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353005/ | 108 Ariz. 342 (1972)
498 P.2d 209
The STATE of Arizona, Appellee,
v.
Roger B. LIPPI, Appellant.
No. 2024.
Supreme Court of Arizona, In Banc.
June 16, 1972.
Rehearing Denied July 11, 1972.
*343 Gary K. Nelson, Atty. Gen., by William P. Dixon and Frank Sagarino, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by Anne Kappes, Deputy Public Defender and Warren R. Brown, Phoenix, for appellant.
CAMERON, Vice Chief Justice.
This is an appeal from a judgment of conviction for the crimes of assault with a deadly weapon, § 13-249, subsec. B A.R.S.; *344 robbery, § 13-641, § 13-643, subsec. B A.R.S.; and kidnapping, § 13-491, subsecs. A and D A.R.S., for which the defendant received 20-25 years as to each charge, and theft of a motorcycle, § 13-672 A.R.S., for which the defendant received 9-10 years, all sentences to run concurrently.
We are called upon to answer the following questions:
1. Do the facts of the case support separate convictions as to all four charges?
2. Did the trial court erroneously admit the transcript of the testimony of the victim taken at the preliminary hearing when the victim did not appear for trial?
3. Did the court improperly instruct the jury on the definition of theft of a motor vehicle?
4. Did the trial court err in admitting into evidence a photograph of defendant?
The facts necessary for a determination of this matter are as follows. On 15 July 1968 Kerry David Burr drove a friend, John Howard King, from Casa Grande, Arizona, to Phoenix, Arizona, on his motorcycle so that King could see a friend in a Phoenix hospital. At the hospital Burr and King met with several members of the "Undertakers", a motorcycle gang, who invited them to a party at a house where several of the "Undertakers" lived. At the party later that night, as Burr was standing near his motorcycle which he had pushed over to a corner of the house, several members of the "Undertakers" came from inside the house with guns and crowded around Burr. The defendant pointed a pistol at Burr's head and asked for his wallet. Then, with guns still pointed at Burr, they escorted him inside the house where they forced him to sign over to them the bill of sale for the motorcycle.
It appears from the record that, once this had been accomplished, Burr came outside with the others and started to walk down an alley. His friend, John King, approached him and told him they had a ride back to Casa Grande. So John King and Kerry Burr got into a car and were taken back to Casa Grande by one of the friends of the "Undertakers." The defendant was not in the car, nor does it appear that he was involved beyond this point. Kerry Burr reported the theft of the motorcycle to the Phoenix Police Department, and a Phoenix police officer testified that an investigation was conducted by the Phoenix Police Department but the motorcycle has not been found.
The defendant Lippi was charged along with five codefendants with assault with a deadly weapon, robbery, kidnapping, and theft of a motor vehicle.
A preliminary hearing at which Kerry Burr testified was held for the defendant Lippi and two of his codefendants who were represented by the Public Defender's Office. At his arraignment on 30 August 1968 defendant pled not guilty to all four charges and denied having been previously convicted of burglary which was alleged in the information. On 4 October 1968 the Public Defender was granted permission to withdraw as counsel because of a possible conflict of interest. Trial was held before a jury at which defendant was represented by new and separate counsel. After the State had been granted two continuances because of Kerry Burr's failure to appear as a witness for the State, Kerry Burr's father, who was at that time Sheriff of Pima County, testified that he had personally served the subpoena upon his son and that he had not seen him for two days. The court then allowed, over objection of defense counsel, the preliminary hearing testimony of Kerry Burr to be read into evidence. The State was also allowed, over defense objections, to admit into evidence a photograph of defendant as he looked at the time of the crime.
The jury returned a verdict of guilty against the defendant on all four counts, and the court found the defendant guilty as to the prior conviction. The court denied defendant's motion for new trial and sentenced him to serve 20-25 years for the crimes of assault with a deadly weapon, *345 robbery and kidnapping, and 9-10 years for the crime of theft of a motor vehicle, all sentences to run concurrently.
DO THE FACTS SUPPORT FOUR SEPARATE CONVICTIONS?
Defendant contends that his convictions for both robbery and theft of a motor vehicle violate § 13-1641 A.R.S. which provides as follows:
"An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. * * *"
This same question was raised and answered in State v. Seelen, 107 Ariz. 256, 485 P.2d 826 (1971) which concerned one of the codefendants. In that case we stated:
"It is clear from the testimony in the record that defendant Seelen had a rifle in his possession when the group surrounded Burr, the victim, and when St. Johns held a rifle in his hand and told Burr they wanted his bike, as well as when Burr's billfold was removed from his pocket. Later, in the house, defendant Seelen held a rifle pointed at the victim's chest at the time he was compelled to sign the purported Bill of Sale to his motorcycle.
"It is evident there were separate acts which amounted to separate crimes in this case. The defendant was present with the other members of the gang and was aiding and abetting in the robbery of the victim's billfold from his person. Later, defendant Seelen pointed a rifle at Burr at the time Burr was compelled to sign the alleged Bill of Sale to his motorcycle; hence, Seelen was aiding and abetting in the theft of the motorcycle.
"Inasmuch as there were separate acts by the defendant which amounted to separate crimes of robbery and grand theft, defendant Seelen was not subjected to double punishment when he was sentenced on both convictions." State v. Seelen, supra, at p. 259, 485 P.2d, at p. 829.
Defendant further contends that the evidence does not support convictions for both kidnapping and assault with a deadly weapon. That the evidence presented was sufficient to support a conviction for assault with a deadly weapon there can be no doubt. State v. Seelen, supra, at page 261, 485 P.2d 826.
We faced a similar problem in State v. Mitchell, 106 Ariz. 492, 478 P.2d 517 (1970). There the defendant was convicted of attempted kidnapping and assault with a deadly weapon. He challenged the convictions under the double punishment statute § 13-1641 A.R.S. In interpreting this statute we said:
"The practical test is to eliminate the elements in one charge and determine whether the facts left would support the other charge." State v. Mitchell, supra, at 495, 478 P.2d, at 520. See also, State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971).
In the instant case, while the crime of assault with a deadly weapon can stand alone, once the elements of the assault with a deadly weapon are removed, the kidnapping charge cannot stand alone. We have held that "punishment" in this statute, § 13-1641 A.R.S., includes both the conviction and the sentence imposed thereon. State v. Ballez, 102 Ariz. 174, 427 P.2d 125 (1967). We have also stated:
"Our court has stated that where a person is convicted and sentenced on two counts based upon one act, that the trial judge should then set aside the lesser conviction. (citations omitted) In view of the fact that the sentences imposed herein are the same and are concurrent, it will not be necessary to remand for resentencing." State v. Mendoza, 107 Ariz. 51, 56, 481 P.2d 844, 849 (1971).
In the instant case, the punishments for assault with a deadly weapon, a gun, § 13-249, subsec. B A.R.S., and kidnapping with a gun, § 13-491, subsec. D A.R.S., are the same. Inasmuch as the kidnapping charge appears to be, factually, the weaker of the two, we therefore hold that the kidnapping *346 conviction must be set aside and the sentence thereunder vacated. State v. Mitchell, supra; State v. Ballez, supra.
WAS THE TRANSCRIPT OF THE VICTIM'S TESTIMONY TAKEN AT THE PRELIMINARY HEARING PROPERLY ADMITTED AT TRIAL?
A defendant's rights to cross-examine and confront the witnesses against him are not abridged by the introduction at trial of preliminary hearing testimony where the accused had the opportunity at the preliminary hearing to confront and cross-examine the witnesses against him. State v. Head, 91 Ariz. 246, 371 P.2d 599 (1962); State v. Stuard, 104 Ariz. 305, 452 P.2d 98 (1969); State v. Reynolds, 7 Ariz. App. 48, 436 P.2d 142 (1968).
Defendant contends, however, that the State did not make a good faith effort to obtain the presence of the witness.
Rule 30, Rules of Criminal Procedure, 17 A.R.S., states:
"B. When a witness has been examined as provided in Rule 23 and his testimony taken as provided in Rule 28, such testimony may be admitted in evidence upon the trial of the defendant for the offense for which he is held, either on behalf of the state or the defendant, if for any reason the testimony of the witness cannot be obtained at the trial and the court is satisfied that the inability to procure such testimony is not due to the fault of the party offering it."
The record discloses that the victim was personally subpoenaed to appear at trial by his father who was at that time Sheriff of Pima County. His father testified that he was unable to locate his son and that he had eight Deputy Sheriffs looking for him who were also unable to locate him. Furthermore, the Deputy County Attorney assigned to this case testified that he had been in contact with Sheriff Burr regarding the whereabouts of Burr's son, was unaware of Kerry Burr's whereabouts, and had done nothing to cause his unavailability. We are of the opinion that Rule 30, subd. B was complied with in the instant case. See State v. Stuard, supra; State v. Reynolds, supra.
Defendant further contends, that at the preliminary hearing, defendant Lippi and two of his codefendants were represented by the same attorney who, after the preliminary hearing, was allowed to withdraw because he felt he could not effectively represent all three codefendants. Defendant contends that a conflict of interest existed at the preliminary hearing which precluded his attorney from effectively cross-examining the victim, and that therefore the victim's testimony should not have been admitted. We find nothing in the transcript of the preliminary hearing to show that the rights of the defendant were prejudiced by the alleged lack of adequate representation by counsel. The fact that the attorney anticipated a possible conflict in representing all three codefendants jointly at trial does not necessitate a finding of a conflict at the preliminary hearing. We have previously stated:
"The Sixth Amendment of the United States Constitution provides that `In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.' Under the Fourteenth Amendment, the right of defendants to counsel in criminal cases is, of course, imperative in state as well as federal trials. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The essence of this right is the right to effective, competent and adequate representation. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Where one attorney represents two codefendants, a conflict of interest which denies one or both defendants the effective assistance of counsel is a distinct possibility. When such a conflict does in fact exist, the conviction cannot stand. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). However, the mere fact that a single attorney represents two defendants in a joint *347 criminal trial is not ipso facto evidence of lack of effective counsel. Rather it is necessary that a conflict of interest must have actually existed or have been inherent in the facts of the case from which the possibility of prejudice flowed. Baker v. Wainwright 422 F.2d 145 (5th Cir.1970); State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966), cert. denied, 385 U.S. 1043, 87 S. Ct. 784, 17 L. Ed. 2d 687 (1967)." State v. Arce, 107 Ariz. 156, 162, 483 P.2d 1395, 1401 (1971).
There is no evidence in the record that defense counsel did not adequately protect the defendant's interests at the preliminary hearing.
DID THE COURT IMPROPERLY INSTRUCT THE JURY ON THE DEFINITION OF THEFT OF A MOTOR VEHICLE?
The statute under which defendant was convicted reads as follows:
"§ 13-672. Theft of a motor vehicle or motorcycle; penalty
"A. It shall be unlawful for any person to take from another a motor vehicle or motorcycle with the intent to either temporarily or permanently deprive such other person of such motor vehicle or motorcycle.
"B. A person found guilty of intent to permanently deprive another of his motor vehicle or motorcycle is guilty of a felony.
"C. A person found guilty of intent to temporarily deprive another of his motor vehicle or motorcycle is guilty of a misdemeanor."
The court instructed the jury on theft of a motor vehicle as follows:
"You are instructed that theft of a motor vehicle is the taking from another of a motor vehicle or motorcycle with intent to either temporarily or permanently deprive such other person of such motor vehicle or motorcycle."
And:
"I will explain to you that the last two verdicts deal with theft of a motor vehicle, and if you determine that the defendant is guilty of Count 4, theft of a motor vehicle, then you must sign one or the other of these two, and I will now read them. We the Jury, duly impaneled and sworn in the above entitled action, upon our oaths, do find the Defendant guilty of Count 4, theft of a motor vehicle, and find intent to temporarily deprive another thereof. And the last one, We the Jury, duly impaneled and sworn in the above entitled action, upon our oaths do find the Defendant guilty of Count 4, theft of a motor vehicle, and find intent to permanently deprive another thereof."
We believe under the facts that the jury was properly instructed.
DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE DEFENDANT'S PHOTOGRAPH?
At the trial of defendant, counsel for the State introduced and had admitted into evidence, over objection by defense counsel, a photograph of defendant as he appeared at the time of the crime. The State contends that, since the defendant's hair was cut short for the trial, the photograph was relevant for identity purposes. The defendant, on the other hand, contends that the introduction of the photograph showing defendant with long hair inflamed the passions of the jury against him. At the trial, the following transpired:
"Q Now, you are absolutely sure that you saw Mr. Lippi that night?
"A Oh yes.
"Q Isn't it true that some of the boys that were over there were around the same height as Mr. Lippi?
"A Oh yes. Little John is, but I know both the boys pretty well.
"Q And you distinguish them by their faces; is that correct?
"A Yes. They were in the yard, which was well lighted.
*348 "Q So you could you say that there's no possibility that you mistook their faces as to who was doing what that particular night?
"A No. It isn't as if it was the first time I saw them, you know, I knew them.
"Q Would you say that Mr. Lippi's face today appears the same as it appeared then when you saw what he was doing?
"A Oh yes.
"Q I hand you Exhibit 2 for identification and ask you if you can identify the person portrayed in that photograph?
"A Yes. That's Roger.
"Q Is that the way that Roger looked on the 15th and 16th of July?
"A His hair is longer. Yes.
"Q And that's the way he looked at that time?
"A Yes.
"Q So he did look different then than he did today?
"A Well, when you say his face, I mean to recognize someone, you know, to me he looks the same. But his hair was long then, and it's shorn now.
"Q In other words, the person depicted in Exhibit 2 for identification, to you, looks the same as Mr. Lippi looks today?
"A Yes. His features are the same.
"MR. HERTZBERG: I will offer Exhibit 2 into evidence.
"MR. TAYLOR: I will object, Your Honor. There's no relevancy in this, no materiality.
"THE COURT: Counsel, what relevancy does the picture have?
"MR. HERTZBERG: Possible mistaken identification as to who she observed during prior testimony as to the number of people being present and the picture showing a substantial difference in appearance between Mr. Lippi then and Mr. Lippi now.
"MR. TAYLOR: May we approach the bench, Your Honor?
"THE COURT: Counsel may approach the bench.
(The following proceedings were had at the bench out of the hearing of the Jury.)
"MR. TAYLOR: If it please the Court, we would object to the admission of this picture on the grounds that the only thing it can do is inflame the passions of the Jury. That's the only reason it's being admitted. We will object to it.
"THE COURT: May I see it?
"MR. TAYLOR: It's extremely prejudicial, has no bearing on the issues.
"MR. HERTZBERG: Your Honor, I believe the only prejudicial fact of the photograph is a photograph that would bear on a mug shot. If this is the way Mr. Lippi looked at the time and she bases identification on it, I think the Jury is entitled to see the difference in appearance as to readily observe or not whether or not it was him on that particular night.
"THE COURT: Very well. Exhibit 2 will be received in evidence."
Exhibit 2 is before this court and shows the defendant with a sparse beard and some long hair at the back of his head. It is not a typical "mug shot," and does not suggest a prior record. See State v. Cumbo, 9 Ariz. App. 253, 451 P.2d 333 (1969).
In the area of admissibility of exhibits, the trial court's discretion will not be disturbed even though the effect of the exhibits may be arguably prejudicial, unless such discretion has been abused. State v. Beers, 8 Ariz. App. 534, 448 P.2d 104 (1969). While we may feel that the exhibit should not have been admitted, it having little or no probative value, we are unable *349 to say that it was so prejudicial as to amount to an abuse of the trial court's discretion in admitting it into evidence.
The judgments and sentences as to the crimes of assault with a deadly weapon, robbery, and theft of a motor vehicle are affirmed. The judgment and sentence as to the crime of kidnapping is set aside.
HAYS, C.J., and STRUCKMEYER, LOCKWOOD and HOLOHAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353780/ | 89 S.W.3d 732 (2002)
John NEWSOM, Appellant,
v.
Cyndi BROD, Appellee.
No. 01-02-00365-CV.
Court of Appeals of Texas, Houston (1st Dist.).
October 17, 2002.
*733 Glendon Bryan Adams, Stafford, for Appellant.
Mark J. Oberti, Houston, for Appellee.
Panel consists of Justices NUCHIA, JENNINGS, and RADACK.
OPINION
SHERRY J. RADACK, Justice.
Appellant, John Newsom, brought suit for wrongful termination of his employment against Fluor Daniel, Inc. (Fluor). Subsequently, he amended his petition to add Florence Hughes and appellee, Cyndi Brod. The trial court granted appellee's motion for summary judgment. Appellant appeals from the rendition of summary judgment against him. Appellant's claims are barred by the statute of limitations. Accordingly, we affirm.
*734 Background Facts
On May 25, 1999, Fluor terminated Newsom for making violent and misogynistic statements at work. On April 12, 2000, appellant sued Fluor for slander and libel, as well as other torts. Appellant based his slander and libel claims against Fluor on Florence Hughes's and appellee's allegedly false complaints against him. In the original suit, appellant stated that Hughes and appellee were "somehow involved" in the complaints that led to his termination, and he named Hughes and appellee in the lawsuit as agents of Fluor. Fluor then removed the suit to federal court.
On August 21, 2000, appellant sought to amend his lawsuit to add Hughes and appellee as additional defendants. In his amended petition, appellant stated that he "has learned the complaining parties against him were [Hughes] and appellee." The trial court denied appellant's motion for leave to amend. On May 24, 2001, appellant sued appellee, Hughes, and Janet Newsom in state court. He alleged slander and libel causes of action. On November 15, 2001, appellant voluntarily dismissed the federal lawsuit, and appellee moved for summary judgment in the state court. On February 19, 2002, the trial court granted appellee's motion for summary judgment. Appellee's case was subsequently severed from the other defendants, and the trial court entered a final judgment.
Standard of Review
When reviewing a traditional motion for summary judgment, we follow these well-established rules: (1) The movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Summary judgment for a defendant is proper if the defendant negates at least one element of each of the plaintiff's claims. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex.1995). A defendant may also obtain summary judgment by establishing all elements of an affirmative defense to each claim. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).
Statute of Limitations
In his first point of error, appellant contends that the trial court erred by not applying the two-year statute of limitations to his claims. See Tex. Civ. Prac. & Rem Code Ann. § 16.003 (Vernon Supp.2002). Appellant claims the appropriate statute of limitations in this case is the two-year statute because the tort is the gravaman of his claim is business slander. Appellee claims that appellant seeks to avoid the one-year limitations period for slander by alleging a business disparagement, which has a two-year statute of limitations.
To determine the nature of appellant's complaints, we must review the factual allegations contained within the pleadings, the evidence adduced in support of those allegations, and the type of damages alleged. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 767 (Tex.1987). If the damages alleged are primarily personal and general-e.g. injury to personal reputation, humiliation, or mental anguish-then the cause of action is one for libel or slander, even though incidental or consequential professional losses are also pleaded and proved. Id.
A claim for business slander or disparagement is appropriate when a plaintiff *735 alleges interference with commercial or economic relations. Id. at 766. The general elements of a claim for business disparagement are publication by the defendant of the disparaging words, falsity, malice, lack of privilege, and special damages. Id. (citations omitted). The tort is part of the body of law concerned with the subject of interference with commercial or economic relations. The Restatement identifies the tort by the name "injurious falsehood" and notes its application "in cases of the disparagement of property in land, chattels, or intangible things or of their quality." Id. (quoting Restatement (Second) of Torts § 623A, cmt. a (1977)).
An action for injurious falsehood or business disparagement is similar in many respects to an action for defamation. Gulf Atl. Life Ins. Co., 749 S.W.2d at 767. Both involve the imposition of liability for injury sustained through publication to a third party of a false statement affecting the plaintiff. Id. The two torts, however, protect different interests. The purpose of an action for defamation is to protect the personal reputation of the injured party, whereas the purpose of an action for injurious falsehood or business disparagement is to protect the economic interests of the injured party against pecuniary loss. Id. More stringent requirements have always been imposed on the "plaintiff seeking to recover for injurious falsehood in three important respectsfalsity of the statement, fault of the defendant and proof of damage." Id. (quoting Restatement (Second) of Torts § 623A, cmt. g (1977)).
Pecuniary loss refers to loss that has been realized or liquidated, as in the case of specific loss of sales. Gulf Atl. Life Ins. Co., at 766-67; (citing W. Keeton, Prosser and Keeton on the Law of Torts, § 128 at 971 (5th Ed.1984)). Further, the communication must play a substantial part in inducing others not to deal with a plaintiff, with the result that special damage, in the form of the loss of trade or other dealings, is established. Id. (citations omitted).
Our review of the record reveals no evidence of the direct, pecuniary loss necessary to satisfy the special damage element of a claim for business disparagement. Appellant's claim is clearly one for defamation, as it focuses on his damages to his reputation. Appellant does not claim he lost business or suffered any disparagement of property in land, chattels, or intangible things or of their quality. The only facts and damages alleged in appellant's pleadings are for the personal harm, if any, he suffered as a result of the alleged libelous and slanderous publications. Thus, because appellant failed to plead or prove that he suffered harm to a business or property interest separate and apart from the personal harm he allegedly suffered, we conclude that he is not entitled to pursue his claim for business disparagement under the two-year statute of limitations. Id. Thus, we hold that the trial court did not err in applying the one-year limitations period to appellant's claims.
We overrule appellant's first point of error.
Application of the Discovery Rule
In his second point of error, appellant contends the trial court erred by misapplying the discovery rule. Appellant claims that November 3, 2000, was the first day he actually knew the identity of the complainants and the contents of their written libels. He claims that the issue of when the statute of limitations commenced is a fact issue for the jury to decide because Fluor allegedly concealed from appellant the names of the complainants and the substance of their complaints.
As noted, the statute of limitations applicable to this slander and libel *736 claim is one year. TEX. CIV. PRAC. & REM.CODE ANN. § 16.002(a) (Vernon 2001). The passing of the statute of limitations depends on when appellant's cause of action accrued. Generally, a defamation claim accrues when the matter is published or circulated. Roe v. Walls Reg'l Hosp., Inc., 21 S.W.3d 647, 651 (Tex.App.-Waco 2000, no pet.). The discovery rule applies to a defamation claim if the matter is not public knowledge. See Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976). When the discovery rule applies, it defers the accrual of a cause of action until a plaintiff discovers or, through the exercise of reasonable care and diligence, should discover the nature of the injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.1998); Wilson v. John Daugherty Realtors, Inc., 981 S.W.2d 723, 726-27 (Tex.App.-Houston [1st Dist.] 1998, no writ).
In its recent KPMG Peat Marwick v. Harrison County Housing Finance Corp. decision, the Texas Supreme Court held that, in applying the discovery rule, the claim accrues "when the plaintiff knew or should have known of the wrongfully caused injury." 988 S.W.2d 746, 749 (Tex.1999). The plaintiff need not know the specific nature of each wrongful act that may have caused the injury. Id.
In KPMG, the plaintiff sued the trustee of the plaintiff's capital reserve fund on February 1, 1993. Id. at 747. The reserve fund was to be used to redeem bonds that the plaintiff had issued. Id. The plaintiff sued the trustee after learning that the trustee had sold capital reserve fund assets at a loss. Id. The plaintiff later sued KPMG Peat Marwick ("KPMG"), alleging that KPMG had negligently or intentionally failed to disclose the trustee's mismanagement of the trust. Id. at 748. The plaintiff claimed that its cause of action against KPMG did not accrue until October 1, 1993, when it first learned that KPGM had failed to report irregularities to the plaintiff. Id. at 749. The court concluded that the injury to the plaintiff was the premature sale of trust assets and that on the date that the plaintiff sued the trustee, the plaintiff was "aware ... of its injury and that its injury was caused by the wrongful conduct of another." Id. As for the plaintiff's failure to discover KPMG's involvement until later, the court stated that the plaintiff should have investigated the possibility that KPGM may not have reported the mismanagement. Id. The court found that the latest date that the cause of action against KPGM could have accrued was the date that the plaintiff sued the trustee. Id.
Appellant filed suit against appellee on May 24, 2001. The one-year statute of limitations period bars his claim if he learned of, or in the exercise of reasonable diligence should have learned of, appellee's alleged slander/libel statements before May 23, 2000. See Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 340-41(Tex. App.-San Antonio 2000, pet. denied). Appellant contends his defamation claim accrued on November 3, 2000, when he first actually knew who his complainants were and the substance of their false statements. He also claims that Fluor concealed the names of the complainants and the substance of their complaints from appellant.
When appellant was terminated on May 25, 1999, appellant knew that appellee had made complaints against him and knew the general nature of those complaints. Appellant also knew that the investigation of those complaints resulted in his termination. In his deposition, appellant admitted he was warned by a co-worker on May 20, 1999 that appellee was involved in the complaints against himthis occurring just days before he was terminated. Appellant testified:
*737 Q: Okay. So Gutierrez did tell you that he thought Cindy Brod was involved [in the complaints against appellant], correct?
A: He did say that, I believe. I think he did. It's been a long time, like I say.
Q: So, as of the afternoon of May 20th, you had one possible name for who was involved, correct?
A: Yes. I guess. I suppose so.
Secondly, on February 6, 2000, appellant gave his lawyer a signed statement about the facts that surrounded his termination. In his statement, appellant stated he believed appellee gave allegedly false complaints against him, and gave him a "hard stare." Finally, when appellant filed his suit against Fluor on April 12, 2000, he specifically identified appellee as being "somehow involved." In fact, appellant founded his original lawsuit against Fluor on the defamation complaints appellee allegedly made against appellant. He specifically named appellee in the lawsuit as an agent of Fluor.
Even if appellant did not discover the detailed substance of appellee's complaints against him until November 3, 2000, appellant became aware of his injury, at the latest, upon his termination. In KPMG, the court found that the cause of action against KPMG accrued when the plaintiff discovered the loss, not when the plaintiff became aware of KPGM's involvement. 988 S.W.2d at 749. Just as the plaintiff in KPMG should have used more diligence in finding the potential contributors to its loss, appellant, likewise, should have used more diligence in pursuing his claims against those parties who may have contributed to his injury.
The summary judgment evidence shows that appellant learned of, or in the exercise of reasonable diligence should have learned of, appellee's alleged slander and libel before May 23, 2000. Thus, his claim is barred. We overrule appellant's second point of error.
Conclusion
We affirm the trial court's judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353777/ | 89 S.W.3d 216 (2002)
Christine Ann SIVERAND, a/k/a Christine Ann James, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-01-608-CR.
Court of Appeals of Texas, Corpus Christi-Edinburg.
October 10, 2002.
*218 Cindy L. Buckner, Rockport, for Appellant.
Mark W. Eggert, Assistant County Attorney, for Appellee.
Before Chief Justice VALDEZ and Justices DORSEY and BAIRD.[1]
OPINION
Opinion by Justice BAIRD.
Appellant was charged by information with the misdemeanor offense of criminal mischief. A jury convicted appellant of the charged offense and assessed punishment at 365 days confinement, probated for two years. We reverse.
I. Factual Summary.
The record reveals a four year feud between the complainant and appellant, two young women who at separate times had a relationship with the same man who later married appellant. In the early morning hours of November 3, 2000, the complainant entered the Millennium nightclub in Aransas Pass. Appellant was inside the club but later exited to the parking lot. The complainant asked her friend, Sabina Rodriguez, to follow appellant. Shortly after returning to the club, appellant and the complainant got into a physical confrontation. When the fight ended, the complainant and Sabina left in the complainant's vehicle. As they drove away, Rodriguez said appellant "keyed" the complainant's vehicle. Rodriguez testified she followed appellant into the parking lot and saw her "keying" the complainant's vehicle and heard metal scraping. *219 Photographs of the damage to the complainant's vehicle were entered into evidence.
Norma Dixon, appellant's sister-in-law, testified appellant left the club to make a telephone call to check on her children. Dixon further testified the complainant's reputation for peacefulness and truthfulness was bad. Dixon also testified there were people other than appellant would want to damage the complainant's vehicle.
Officer Fernando Lopez of the Aransas Pass Police Department testified he saw the complainant and Rodriguez following this altercation. The two women were at the police station "happy ... that they had got [appellant]."
Appellant's husband testified he was the former boyfriend of the complainant. He stated the complainant's vehicle had been keyed three years before the alleged incident.
Finally, appellant testified she left the nightclub to retrieve her cell phone and call the babysitter to check on her daughter. Appellant testified she had several encounters with the complainant in the past and had reported each incident to the police. She related a conversation in the parking lot with Rodriguez where she (appellant) denied damaging or even knowing which vehicle belonged to the complainant.
II. The State's Failure to File Appellate Brief.
Appellant's brief was filed on December 3, 2001. The State's brief was due on or before January 2, 2002. Tex.R.App. P. 38.6(b). On March 25, 2002, after not receiving a brief from the State, we ordered the State to file a brief. On April 25, 2002, the State filed a motion for extension of time to file its brief. That motion was granted and the State was given until May 27, 2002, to file its brief. However no brief has been filed, and the State has not requested additional time to file a brief. The Texas Rules of Appellate Procedure require appellant to either file a brief or state that he no longer desires to prosecute the appeal. Tex.R.App. P. 38.8(b). However, there is no corresponding rule requiring the State to file a brief in response to appellant's brief.[2]
The State's failure to file a brief leaves this court with several options. We could accept appellant's argument at face value and summarily reverse. This, we believe, would be unfair to the trial judge who, through no fault of his own, is left with no one to defend his ruling. On the other hand, we could abandon our roles as impartial jurists and become advocates for the State advancing arguments in order to affirm. Of course, such behavior is completely unacceptable for any number of reasons. First, our Code of Judicial Conduct requires that we act impartially. Second, the rules of appellate procedure require the parties to advance their own arguments. Tex.R.App. P. 38.1(h) and 38.2(a)(1). Finally, decisional authority prevents us from advancing arguments on behalf of either party. Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.1995) ("Appellant leaves us to find error and argue his case for him; this is inadequate briefing, and as such, it presents nothing for our review." citing Garcia v. State, 887 S.W.2d 862, 871 (Tex.Crim.App.1994)); *220 Anson v. State, 959 S.W.2d 203, 208 n. 2 (Tex.Crim.App.1997) (Baird and Overstreet, JJ., dissenting) (Appellate judges who resolve issues not raised by the parties are partisan advocates, not impartial jurists.). We believe the better option is to treat the State's failure to file a brief as a confession of error. While the confession of error by the prosecutor in a criminal case is an important factor, it is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App.2002). The appellate court must make an independent examination of the merits of the claim of error. Id. However, this examination must necessarily be limited to the arguments advanced in the trial court, otherwise, we run afoul of the prohibition of advancing argument on behalf of the parties.
III. Character Evidence.
Appellant's sole point of error contends the trial judge erred in excluding the testimony of Aisha Anderson, the third witness called to testify for appellant. Anderson testified she lived in Nueces County. The alleged offense occurred in San Patricio County. Anderson testified she did not know the complainant personally, but was familiar with her reputation in the community where the complainant resided or was well known. The State objected to Anderson's testimony on two bases: (a) she was not established in or connected to the community because she was a resident of Nueces County; and, (b) because her testimony was based upon hearsay. Regarding the State's "community" argument, defense counsel stated:
Your Honor, I'm trying to show that this witness and the complaining witness and other young people her age are all members of a subculture ... of people who attend the same nightclubs ... in Aransas Pass and in Corpus Christi and that this witness, through her friendships with other people in ... the nightclub attending young people community, had heard of and knew of the reputation of the complaining witness.
Counsel further argued that even though the complainant did not reside or work in Nueces County, the complainant did "engage in recreational activities in that community." The trial judge sustained the State's objection and Anderson was not permitted to testify. The trial judge explained his ruling as follows:
I'm going to sustain the State's objection and basically instruct you at this time that unless you can show that [Anderson] has knowledge of the reputation either in the community where [the complainant] lives or works, not where she quote, unquote, goes over some place to do partying or whatever like that, that you cannot use that as character evidence in this case.
For the reasons stated in part II of this opinion, our review of this point of error is limited to three narrow issues. The threshold question is whether character evidence related to a complainant is admissible. That question must be answered in the affirmative because Rules 404(a)(2) and 608(a) of the Texas Rules of Evidence authorize this type of evidence.[3]
The second question is whether Anderson's testimony was properly excluded by the hearsay rule. The answer is clearly no. Rule 803(21) of the Texas Rules of Evidence specifically provides that reputation testimony of a person's character among associates or in the community *221 is not excluded by the hearsay rule. This is true because "[r]eputation testimony is necessarily based on hearsay, but is admitted as an exception to the hearsay rule." Moore v. State, 663 S.W.2d 497, 500 (Tex.App.-Dallas 1983, no pet.).[4]
Finally, we turn to the question of whether a character witness is required to reside or work in the same "community" as the one about whom the testimony is related. This question must also be answered in the negative. Jordan v. State, 163 Tex. Crim. 287, 290 S.W.2d 666, 667 (1956) (testimony of person who knew defendant's reputation in Dallas was admissible even though they did not know reputation in Richardson where defendant lived). The Court of Criminal Appeals has adopted a liberal definition of "community" for reputation purposes. Moore, 663 S.W.2d at 501. In Arocha v. State, the Court held: "A person's community is not limited to the locale where the case is tried nor his residence at the date the offense was committed." 495 S.W.2d 957, 958 (Tex.Crim.App.1973) (permissible to question character witness about offense committed in Houston although defendant was resident of Austin) (emphasis added); Ayers v. State, 162 Tex. Crim. 586, 288 S.W.2d 511 (Tex.Crim.App.1956) (permissible to question Texas witness about offense in New York).
For these reasons, we hold the trial judge abused his discretion in excluding the testimony of Anderson.
IV. Harm Analysis.
Our holding that the trial judge erred does not end our inquiry. We must now determine whether the error requires reversal. Rule 44.2(b) of the Texas Rules of Appellate Procedure prescribes the harm analysis for the erroneous exclusion of evidence. Tex.R.App. P. 44.2(b). Under that rule, error not affecting a substantial right must be disregarded. A substantial right is violated when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). However, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Webb, 36 S.W.3d at 182. In this context, neither party has the burden of proof under rule 44.2(b). Id. Rather, the appellate court will examine the record for purposes of determining harm. Id. Therefore, the fact that the State failed to file a brief does not affect our consideration of the issue of harm.
In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla *222 v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). This alleged offense represents the culmination of a four year feud between the complainant and appellant. These two young women had been involved in numerous altercations, both physical and verbal. The State's theory of prosecution was that appellant was still angry over the complainant's past relationship with appellant's husband. The only witness to the alleged offense was Rodriguez, a close friend and ally of the complainant. We do not find this to be overwhelming evidence of guilt. Motilla, supra. Appellant's defensive theories were that she was either being framed by the complainant, or that someone else had damaged the complainant's vehicle. Officer Lopez supported the first theory by testifying the complainant and Rodriguez were "happy ... that they had got [appellant]." Appellant's husband supported the second theory by testifying the complainant's vehicle had been keyed three years before. Both defensive theories were supported by the character testimony of Dixon that the complainant's reputation for being peaceful and truthful was bad. Similarly, the testimony of Anderson would have advanced both defensive theories.
In light of particular facts of this case and the long-standing animosity between the parties, we cannot say the error had no influence or only a slight influence on the verdict. Therefore, we must treat the error as harmful. Accordingly, we sustain appellant's sole point of error.
The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
NOTES
[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
[2] When the State prosecutes an appeal pursuant to article 44.01 of the Code of Criminal Procedure but does not file a brief, appellate courts hold the State's failure to file a brief constitutes abandonment of the appeal. State v. Palacios, 968 S.W.2d 467, 468 (Tex.App.-Fort Worth 1998, no pet.); State v. Crawford, 807 S.W.2d 892, 893 (Tex.App.-Houston [1st Dist.] 1991, no pet.); State v. Sanchez, 764 S.W.2d 920, 921 (Tex.App.-Austin 1989, no pet.).
[3] As noted in part I, supra, Dixon testified the complainant's reputation for peacefulness and truthfulness was bad.
[4] On several occasions, the State argued Anderson's testimony must be based upon personal knowledge. The trial judge seemed to accept this argument. But personal knowledge is not required for reputation testimony. Jackson v. State, 628 S.W.2d 446, 450 (Tex.Crim.App.1982). Instead, such testimony may be based either on (1) discussions between the witness and others about the defendant; or (2) information overheard by the witness during conversations by others who discussed the defendant's reputation. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353784/ | 462 S.E.2d 622 (1995)
265 Ga. 763
BURNS
v.
The STATE.
No. S95A1237.
Supreme Court of Georgia.
October 16, 1995.
Edward D. Tolley, Ronald E. Houser, Cook, Noell, Tolley & Wiggins, Athens, for Burns.
Harry N. Gordon, Dist. Atty., Athens, Richard Lee Dickson, Asst. Dist. Atty., Athens, Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, for State.
SEARS, Justice.
The appellant, Frankie Burns, was arrested for murder and armed robbery in January 1993. In May 1994 Burns filed a demand for a speedy trial pursuant to OCGA § 17-7-171. On January 20, 1995, Burns, who has been incarcerated since his arrest, filed a motion contending that he was entitled to be acquitted on the charges filed against him because the state had failed to comply with his demand for a speedy trial within the time required by § 17-7-171(b) and because the state's delay in bringing him to trial violated the speedy trial protections of the United States and Georgia constitutions. The trial *623 court denied the motion, and Burns filed this appeal.[1] We affirm.
We find no merit to Burns's demand for acquittal under § 17-7-171(b), as Burns did not satisfy the statutory requirement that, at some point during the first two regular terms of court following the filing of his demand, he be "present in court announcing ready for trial and requesting a trial on the indictment."[2] Although Burns's case did not appear on a trial calendar during the first two regular terms following the term in which the demand was filed, Burns was nevertheless required to comply with the foregoing statutory requirement either through his own actions or those of his attorney.[3] Moreover, having considered the appropriate factors, we hold that the trial court did not abuse its discretion in ruling that Burns's constitutional right to a speedy trial has not been violated.[4] Finally, as for Burns's contention that his pre-trial incarceration amounts to an unconstitutional punishment under the rationale of Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), we note that this issue was not raised below and may not be raised for the first time on appeal.[5]
Judgment affirmed.
All the Justices concur.
NOTES
[1] Although the order denying Burns's motion for acquittal was interlocutory, the order is directly appealable. Boseman v. State, 263 Ga. 730, n. 1, 438 S.E.2d 626 (1994).
[2] OCGA § 17-7-171(b). See Rice v. State, 264 Ga. 846, 452 S.E.2d 492 (1995); Smith v. State, 261 Ga. 298, 299, n. 3, 404 S.E.2d 115 (1991); Dennis v. Grimes, 216 Ga. 671, 672-73(3), 118 S.E.2d 923 (1961).
[3] Smith, 261 Ga. at 299, n. 3, 404 S.E.2d 115; Dennis, 216 Ga. at 672-673, 118 S.E.2d 923.
[4] Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191, 33 L. Ed. 2d 101 (1972); Boseman v. State, 263 Ga. at 731-32(1), 438 S.E.2d 626 (1994); Brown v. State, 264 Ga. 803, 805(2), 450 S.E.2d 821 (1994).
[5] Tanthongsack v. State, 265 Ga. 88(1), 453 S.E.2d 468 (1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353787/ | 462 S.E.2d 638 (1995)
218 Ga. App. 552
ALLSTATE INSURANCE COMPANY
v.
DUNCAN.
DUNCAN
v.
ALLSTATE INSURANCE COMPANY.
Nos. A95A1286, A95A1287.
Court of Appeals of Georgia.
September 19, 1995.
Certiorari Denied January 5, 1996.
*639 Long, Weinberg, Ansley & Wheeler, Johnathan T. Krawcheck, Earl W. Gunn, Charles K. Reed, Atlanta, for appellant.
James A. Goldstein, Atlanta, for appellee.
POPE, Presiding Judge.
Plaintiff Douglas Duncan, a Georgia resident, was injured in an automobile accident caused by "John Doe," an unknown uninsured motorist. The accident occurred in Missouri, and at the time of the accident Duncan was a passenger in a car insured by defendant Allstate Insurance Company under a policy (including uninsured motorist coverage) issued and delivered in Missouri. Duncan sued John Doe in Georgia and served Allstate as the uninsured motorist carrier. See OCGA § 33-7-11(d). Allstate moved to dismiss, arguing that the court was without jurisdiction over John Doe, and that a judgment against John Doe was a prerequisite to an action against an uninsured motorist carrier under Georgia law. See Boles v. Hamrick, 194 Ga.App. 595, 391 S.E.2d 418 (1990). The trial court agreed that it had no jurisdiction over John Doe. It nonetheless ruled that the action could proceed against Allstate because Missouri law, which does not require a judgment against John Doe before a judgment against an uninsured motorist carrier is possible, would apply. We granted Allstate's application for interlocutory appeal to review this choice-of-law ruling, and in Case No. A95A1286 we reverse. *640 But in Duncan's cross-appeal, Case No. A95A1287, we also reverse, concluding that the court does in fact have jurisdiction over John Doe under OCGA § 33-7-11(d)(1). Thus, while we reverse the judgment in both cases, the bottom linethat Duncan's action against Allstate may proceedremains the same.
Case No. A95A1286
1. When a choice-of-law question arises in a contract action brought in Georgia, substantive matters such as the validity and construction of the contract are governed by the substantive law of the state where the contract was made (or is to be performed, if that is a different state); but procedural and remedial matters are governed by the law of Georgia, the forum state. Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga.App. 763, 765-766, 417 S.E.2d 671 (1992). The question presented herewhat a party injured by an unknown driver must do to recover from his own uninsured motorist carrieris a procedural and remedial matter, and thus is governed by Georgia law. See Houston v. Doe, 136 Ga.App. 583(1), 222 S.E.2d 131 (1975). Duncan's reliance on Amica Mut. Ins. v. Bourgault, 263 Ga. 157, 429 S.E.2d 908 (1993) is misplaced, as Amica involved the substantive question of the validity of a policy exclusion. Accordingly, the trial court erred in looking to Missouri rather than Georgia law.
Case No. A95A1287
2. Under Georgia law, a judgment against the uninsured motorist, whether known or unknown, is a condition precedent to recovery from the uninsured motorist carrier. See Boles v. Hamrick, supra. Thus, if the trial court were correct in its conclusion that it did not have jurisdiction over John Doe, Duncan's action against Allstate would have to be dismissed, or we would have to create an exception to the general rule. See, e.g., Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 224 S.E.2d 167 (1976); Tinsley v. Worldwide Ins. Co., 212 Ga.App. 809, 442 S.E.2d 877 (1994). Fortunately, however, the legislature foresaw this problem and addressed it in OCGA § 33-7-11(d)(1): "In cases where the owner or operator of a vehicle causing injury or damages is unknown and an action is instituted against the unknown defendant as `John Doe,' the residence of such `John Doe' defendant shall be presumed to be in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff, at the election of the plaintiff in the action."
Allstate asserts that this statutory presumption addresses residency for purposes of venue but not for purposes of personal jurisdiction. It cites no support for this assertion, however, and the language of the statute makes no such distinction. Moreover, we have stated that where a trial court was unable to exercise in personam jurisdiction over a known nonresident uninsured motorist, the uninsured motorist should be considered unknown, and the action should proceed as if it were a John Doe action. See State Farm Mut. Auto. Ins. Co. v. Noble, 208 Ga.App. 518, 430 S.E.2d 804 (1993); Smith v. Phillips, 172 Ga.App. 459, 462-463(1), 323 S.E.2d 669 (1984). This would not make sense, of course, if plaintiff had to show that the court had jurisdiction over an unknown John Doe.
Allstate further suggests that an exercise of jurisdiction under OCGA § 33-7-11(d)(1) would be unconstitutional if the John Doe does not have sufficient minimum contacts with Georgia. But even if we assume Allstate has standing to raise the issue of John Doe's due process rights, see South Ga. Nat. Gas Co. v. Ga. Pub. Svc. Comm., 214 Ga. 174(1), 104 S.E.2d 97 (1958), those rights would not be violated because any judgment against John Doe would not be an in personam judgment. See Noble, 208 Ga.App. at 519-520 & n. 1, 430 S.E.2d 804 (John Doe action is simply a procedural device designed to allow the insured to fulfill the condition precedent; the judgment against John Doe is only nominal).
Allstate cites State Farm Mut. Ins. Co. v. Kuharik, 179 Ga.App. 568(1), 347 S.E.2d 281 (1986) for the proposition that the due process rights of even a John Doe defendant cannot be ignored. Kuharik actually supports our conclusion, however, as it states that the unknown driver's rights are not violated by allowing the John Doe action to *641 proceed since, if the identity of the unknown driver is later discovered, he will not be bound by the John Doe judgment. "The purpose of a John Doe action is merely to fix the liability of the uninsured motorist carrier to its policyholder for loss caused by an unknown tortfeasor. [Cit.] Such a proceeding obviously does not operate to defeat the unknown tortfeasor's due process rights. `If the insurer, even after judgment and payment, should discover the identity of the tortfeasor, it is of course subrogated to the plaintiff's rights, but the plaintiff has in no meaningful sense either served or obtained a judgment against the tortfeasor by his John Doe action.' [Cit.]" Kuharik, 179 Ga.App. at 568-569, 347 S.E.2d 281.[1]
In summary, we hold that Georgia law controls the procedural question of whether a judgment against the unknown tortfeasor is a prerequisite to recovery from the uninsured motorist carrier; and since Georgia law does require such a judgment, we reverse the judgment in Case No. A95A1286. We also hold that the court has jurisdiction over the John Doe defendant because the suit was brought in the county of plaintiff's residence, and thus reverse the judgment in Case No. A95A1287. As a result of the two reversals, John Doe is reinstated as a defendant and Duncan's action against Allstate may proceed.
Judgments reversed.
BEASLEY, C.J., and RUFFIN, J., concur.
NOTES
[1] Watts v. Allstate Ins. Co., 214 Ga.App. 462, 448 S.E.2d 55 (1994) is distinguishable, as it involved a known uninsured tortfeasor rather than a John Doe. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353466/ | 614 S.E.2d 337 (2005)
STATE of North Carolina
v.
Celestio Lefranz HARRINGTON, and Chris Rattis.
No. COA04-500.
Court of Appeals of North Carolina.
June 21, 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood and Assistant Attorney General Steven Armstrong, for the State.
Jeffrey Evan Noecker, Wilmington, for defendant Celestio Lefranz Harrington.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, New Bern, for defendant Chris Rattis.
*341 McGEE, Judge.
Celestio Lefranz Harrington (Harrington) and Chris Rattis (Rattis) (collectively defendants) were convicted of trafficking in marijuana by possession, trafficking in marijuana by manufacture, trafficking in marijuana by transportation, conspiracy to traffic marijuana, and maintaining a place to keep a controlled *342 substance. Defendants were each sentenced to four consecutive terms of thirty-five to forty-two months.
The State's evidence at trial showed that on 10 April 2002, S.B.I. Special Agent Errol Jarman (Agent Jarman) intercepted a United Parcel Service package that he believed contained marijuana. Based on a canine inspection, Agent Jarman obtained a search warrant for the package and discovered marijuana therein. The package was addressed to a woman at 405-B Monza Court (the apartment). Agent Jarman and the Fayetteville Police Department conducted a controlled delivery of the package to the apartment. The apartment was leased to Charles Veal (Veal). Rattis was the only person at the apartment when Agent Jarman, working undercover, delivered the package.
After the package was delivered, the police entered the apartment to conduct a search pursuant to a warrant. They found scales, packages of sandwich bags, a .38 caliber revolver, bullets, and a block of marijuana. Rattis was detained by the police, after trying to exit the rear of the apartment.
The police also searched a vehicle located outside of the apartment that Rattis said belonged to a friend. Police found a rental agreement in the vehicle in the name of Joi Norfleet (Norfleet), for a house located at 6313 Rhemish Drive (the house). Police officers went to the house, which was five miles from the apartment. Norfleet answered the door and permitted the police to search the house, except for Harrington's bedroom. Defendants were both residents of the house, along with Norfleet.
In the garage of the house, police found a locked cardboard container, a large plastic outdoor trash bag filled with one to two thousand "dime bags" generally used for storing small amounts of marijuana, and a trash can with marijuana residue and seeds in it. Inside the house, police found a small bag of marijuana in one of Norfleet's dressers. In the kitchen, the police found a bag of marijuana, a digital scale, and a vacuum sealer, which is often used to package marijuana. In the bedroom shared by Rattis and Norfleet, the police found guns, a book on drug enforcement, large amounts of money, and multiple identification documents with Rattis's picture but with different names. The police also found a key to the locked cardboard container they had seen in the garage. When they opened the locked container, they found more than fifty-eight pounds of marijuana bricks, along with a note from Norfleet dated 7 April 2002, which indicated Norfleet had opened one of the bricks of marijuana, had sold a couple of ounces, and had kept some for herself.
Since Harrington was not present at the house, the police obtained a warrant to search his bedroom. In the bedroom, police found a set of scales, plastic bags containing marijuana residue, a bullet-proof vest, approximately $2,000 in cash, some credit cards bearing various names, and a large amount of marijuana.
Defendants, Norfleet, and Veal were arrested. Norfleet was offered a lesser sentence to testify against Veal and defendants. She testified that Veal and defendants had previously lived together in a house located at 6121 Conoway Drive, and that she thought Veal and defendants had engaged in distributing drugs. Norfleet further testified that she and defendants later lived together at the house located at 6313 Rhemish Drive, and that Veal lived at the apartment, but occasionally came to the house. Norfleet testified that defendants were selling marijuana, that the house was used for storing marijuana, and that the apartment was used for distribution.
During the trial, Veal changed his plea of not guilty to guilty. Defendants were given the same opportunity to change their pleas but chose to continue their jury trial. Harrington did not present any evidence, but Rattis testified on his own behalf.
Rattis testified that he was involved in many moneymaking enterprises, including buying and selling vehicles at auctions, working in the restaurant business, and working as a music promoter. He also testified that he had been unable to open a bank account in the United States because he was a Jamaican citizen, so he had to keep his money in his bedroom. Rattis further testified that he had been thinking about moving out of the *343 house, and that he had gone to talk with a rental agent on 10 April 2002. When the agent was unavailable, Rattis went to the apartment to watch television while he waited for the rental agent to return. He also testified that he met women at the apartment because he did not want to tell people where he lived, and he did not want to bring other women to the house where he lived with Norfleet. Rattis testified that he was watching the news when a man arrived with a package. He stated that he refused to accept the package because it was not addressed to Veal or Veal's girlfriend, but that nevertheless, the delivery person left the package on the floor. Rattis testified that soon after the delivery, people banged on the door, entered the apartment, and pointed a firearm at his chest, which is why he went to the rear sliding door. He also testified that he did not know about the marijuana in the garage of the house because he had been out of town for several weeks.
I.
Defendants first argue that the trial court erred in joining defendants' cases for trial, over their objections. Defendants filed a motion for severance, which was argued at a pre-trial hearing. Harrington renewed his motion to sever at the close of the State's evidence, and at the close of all of the evidence. The trial court allowed joinder and denied all motions to sever. Defendants argue that by joining their cases, the trial court denied defendants a fair trial.
Upon written motion of the State, a trial court may join the trials for two or more defendants "[w]hen each of the defendants is charged with accountability for each offense," or when the several offenses charged were "part of a common scheme or plan; ... part of the same act or transaction; or ... so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others." N.C. Gen.Stat. § 15A-926(b)(2) (2003). The State, in the present case, moved to join defendants' trials because each defendant was charged with the accountability of each offense, and because the evidence tended to show that defendants were engaged in a common scheme or plan to distribute marijuana.
Defendants each assert that the State's public policy interests "cannot stand in the way of a fair determination of guilt or innocence." See State v. Hucks, 323 N.C. 574, 582, 374 S.E.2d 240, 245 (1988). The trial court must, upon motion, "deny a joinder for trial or grant a severance of defendants" when necessary to fairly determine "the guilt or innocence of one or more of the defendants." N.C. Gen.Stat. § 15A-927(c)(2) (2003). However, "[t]he trial court's decision as to whether to grant a motion for severance under the statute is an exercise of discretion, and its ruling will not be disturbed on appeal unless the defendant demonstrates an abuse of discretion which effectively deprived him of a fair trial." Hucks, 323 N.C. at 582, 374 S.E.2d at 245. "An appellate court should affirm a discretionary decision by the trial court that is supported by the record, and reverse only where the decision is manifestly unsupported by reason and so arbitrary that it could not have been the result of a reasoned decision." State v. Morgan, 359 N.C. 131, 148-49, 604 S.E.2d 886, 897 (2004) (internal quotations and citations omitted).
Defendants argue that by joining their cases, the trial court forced defendants to defend themselves against each other, rather than against the charges. They argue that while examining witnesses, each of their defense counsel had to deflect the blame from his respective client by casting blame on the other. Defendants further argue that their defenses were inherently antagonistic and that evidence was admitted at trial that would have been excluded had defendants been tried separately. See State v. Foster, 33 N.C.App. 145, 149, 234 S.E.2d 443, 446 (1977) (stating "the existence of antagonistic defenses, or the admission of evidence[,] which would be excluded on a separate trial," was evidence that "a joint trial would be prejudicial and unfair"). Specifically, Rattis argues that the evidence of other crimes or wrongful acts committed by Harrington had no probative value for Rattis, and therefore prejudiced Rattis. Harrington similarly argues that there was no evidence linking him *344 to the apartment, and that in a separate trial this evidence would not have been admitted against him. We note, however, that Norfleet's testimony that defendants would sometimes go to the apartment and that defendants used the apartment to distribute marijuana, linked Harrington to the apartment.
The admission of evidence that would not be admitted in separate trials or the presence of antagonistic defenses does not necessarily require severance. See State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979), cert. denied, Jolly v. North Carolina, 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980). Rather, "[t]he test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial." Id. In the present case, defendants fail to show that they were deprived of a fair trial. Evidence presented by the State, including marijuana, large amounts of money, and drug paraphernalia, found at both the apartment and the house was ample evidence to convict both defendants of the marijuana charges, individually or jointly. Furthermore, Norfleet's testimony was relevant to the conspiracy charge, and would have been admissible against defendants individually in separate trials. Therefore, defendants' arguments of possible prejudice are insufficient to show that the trial court abused its discretion in joining the cases for trial. The State sought to hold defendants accountable for the same crimes that arose at the same time, and the State's evidence was sufficient to show that defendants were involved in a common scheme to distribute marijuana. The trial court did not err in joining defendants' cases for trial.
II.
Defendants next argue that the trial court erred in denying their motions to dismiss the charges against them. Defendants moved to dismiss all charges against each of them at the close of the State's evidence, and at the close of all of the evidence. These motions were denied. A defendant's motion to dismiss is properly denied when "there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 861 (1981). In ruling on a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference that can be drawn from the evidence. Powell, 299 N.C. at 99, 261 S.E.2d at 117. "Any contradictions or discrepancies in the evidence are for resolution by the jury." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
A.
Defendants were each charged with three counts of trafficking in marijuana: by possession, by manufacture, and by transportation. The State had to prove that defendants respectively possessed, manufactured, and transported more than fifty pounds but less than 2,000 pounds of marijuana. N.C. Gen. Stat. § 90-95(h)(1)(b) (2003). Neither Harrington nor Rattis disputes the amount or weight of the marijuana found in the garage of the house. Rather, they argue that there was insufficient evidence on the issues of possession, manufacturing and transportation.
Possession of a controlled substance may be actual or constructive. State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). "An accused has possession of contraband material within the meaning of the law when he has both the power and the intent to control its disposition or use." State v. Davis, 25 N.C.App. 181, 183, 212 S.E.2d 516, 517 (1975). When narcotics "are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession." Harvey, 281 N.C. at 12, 187 S.E.2d at 714. "[W]here possession of the premises is *345 nonexclusive, constructive possession of the contraband materials may not be inferred without other incriminating circumstances." Brown, 310 N.C. at 569, 313 S.E.2d at 589.
In the present case, neither Harrington nor Rattis had exclusive possession of the marijuana found in the garage of the house. For this reason, each argues that there was insufficient evidence that he had dominion or control over the marijuana. However, the State presented other incriminating evidence that was sufficient to allow the charge of possession for each defendant to go to the jury. In particular, the evidence of drug paraphernalia found in various areas of the house where both defendants resided, and the testimony of Norfleet that both defendants were engaged in the sale of marijuana and both had access to the garage, was sufficient for the issue of possession to survive a motion to dismiss.
Similarly, defendants each assert that the trial court erred when it denied their motions to dismiss on the charge of trafficking in marijuana by manufacture. Under the Controlled Substances Act, "manufacture ... includes any packaging or repackaging of the substance or labeling or relabeling of its container[.]" N.C. Gen.Stat. § 90-87(15) (2003). Defendants concede that the police found a large plastic trash bag containing one to two thousand plastic "dime bags" near the marijuana in the garage, and found a scale and a vacuum sealer in the kitchen. Rattis argues, however, that the above definition of "manufacture" requires the active manufacturing of a controlled substance, i.e., that a defendant be actively engaged in packaging, repackaging, or labeling, rather than merely prepared to manufacture. Rattis contends that the trial court erred because no evidence was offered to show that defendants were engaged in manufacturing, only that defendants were equipped to manufacture marijuana, but had not begun to do so. However, our Court has held that evidence of scales and plastic bags found with marijuana is sufficient evidence for the issue of manufacturing to be submitted to a jury. State v. Roseboro, 55 N.C.App. 205, 210, 284 S.E.2d 725, 728 (1981), disc. review denied, 305 N.C. 155, 289 S.E.2d 566 (1982). Moreover, in the present case, Norfleet testified that Rattis used the scale and vacuum sealer found in the kitchen to weigh and package marijuana for distribution. We overrule Rattis's assignment of error on this issue.
Harrington argues that there was insufficient evidence that he ever manufactured the marijuana found in the garage. Harrington argues that while Norfleet testified that Rattis used a vacuum sealer to package the marijuana, no evidence suggested that Harrington was ever present while the marijuana was being packaged or that he ever engaged in the packaging. However, Norfleet testified that both defendants had access to the garage where one to two thousand "dime bags" were found, and certainly both defendants had access to the kitchen where the scale and vacuum sealer were found. Norfleet also identified the bags found in the garage as bags that were used by defendants to distribute marijuana. Additionally, police found, among other things, a set of scales and plastic bags containing marijuana residue in Harrington's bedroom. There was substantial evidence of manufacture, and the trial court properly denied Harrington's motion to dismiss this charge.
Defendants also assign as error the trial court's denial of their motions to dismiss the charge of trafficking in marijuana by transportation. "Transportation" is the "real carrying about or movement from one place to another." State v. Outlaw, 96 N.C.App. 192, 197, 385 S.E.2d 165, 168 (1989) (citation omitted), disc. review denied, 326 N.C. 266, 389 S.E.2d 118 (1990). We agree with defendants that the trial court erred in submitting this issue to the jury when there was insufficient evidence that defendants had carried or moved the marijuana from one place to another.
The State argues that according to Norfleet's testimony, defendants stored the marijuana at the house and used the apartment for distribution, thus implying that defendants had to move the marijuana from the house to the apartment. However, absent other evidence of transportation, this implication is insufficient to overcome a motion to dismiss. See State v. Lorenzo, 147 N.C.App. *346 728, 732-33, 556 S.E.2d 625, 627 (2001) ("[W]e have found no case in North Carolina that recognizes the doctrine of constructive transportation."). Our Courts have previously found sufficient evidence of transportation of a controlled substance only when a defendant can be shown to have actively moved or carried the controlled substance.
For example, we have held that there was sufficient evidence of transportation when a defendant was observed moving a controlled substance from one place to another in a vehicle, even for a minimal distance. See Outlaw, 96 N.C.App. at 197, 385 S.E.2d at 168-69 (holding that there was sufficient evidence of transporting cocaine when the defendant carried cocaine from his home to his truck, got into the truck, and had begun backing down his driveway when the police stopped him); see also State v. McRae, 110 N.C.App. 643, 646, 430 S.E.2d 434, 437 (holding that evidence that the "defendant removed the drugs from a dwelling house and carried them to a car by which he left the premises" was "sufficient to sustain the charge of trafficking by transporting in violation of G.S. § 90-95(h)(3)"), disc. review denied, 334 N.C. 625, 435 S.E.2d 347 (1993). Additionally, our Court has held that a defendant personally tossing a bag or package containing a controlled substance may constitute real movement to support a charge of trafficking by transportation. See State v. Wilder, 124 N.C.App. 136, 140, 476 S.E.2d 394, 397 (1996); State v. Greenidge, 102 N.C.App. 447, 450-51, 402 S.E.2d 639, 641 (1991).
In the present case, however, no one testified to observing Harrington or Rattis personally or actively moving or carrying any controlled substance. There was therefore insufficient evidence to support the charge of trafficking by transportation, and the trial court erred in submitting this issue to the jury. Since defendants were convicted of this charge and were sentenced to an additional thirty-five to forty-two months for the charge, the error was not harmless. We therefore vacate defendants' convictions of trafficking in marijuana by transportation.
B.
Defendants next assign as error the trial court's denial of their motions to dismiss the conspiracy charges against them. "`A criminal conspiracy is an agreement, express or implied, between two or more persons to do an unlawful act or to do a lawful act by unlawful means.'" State v. Clark, 137 N.C.App. 90, 95, 527 S.E.2d 319, 322 (2000) (citations omitted). In the present case, there is no direct evidence of an agreement to traffic in marijuana, but "`[d]irect proof of conspiracy is rarely available, so the crime must generally be proved by circumstantial evidence.'" Id. (citation omitted). "A conspiracy `may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.'" Id. (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)).
The State presented a number of different acts, which, when taken together, amount to substantial evidence that defendants had agreed to distribute marijuana. Norfleet testified that defendants and Veal were engaged in distributing marijuana as early as 2000, and that Harrington and Rattis each had access to the fifty-eight pounds of marijuana in the garage. Norfleet further testified that the house where both defendants lived, was used to store marijuana and that the apartment, where Veal lived, was used to distribute marijuana. Rattis was at the apartment when Agent Jarman made a controlled delivery of a package containing marijuana. Marijuana, scales, packaging materials, and weapons were found at both the apartment and the house. This incriminating evidence was found in each of defendants' bedrooms, as well as in public areas of the house. Based on this evidence, the trial court did not err in denying defendants' motions to dismiss the conspiracy charge.
C.
Rattis also assigns as error the trial court's denial of his motion to dismiss the charge of maintaining a place to keep and sell marijuana. N.C. Gen.Stat. § 90-108(a)(7) (2003) states that it is unlawful for a person "[t]o *347 knowingly keep or maintain any ... dwelling house, . . . or any place ... for the purpose of using [controlled] substances, or which is used for the keeping or selling of the same[.]" A person who violates N.C.G.S. § 90-108(a) "shall be guilty of a Class 1 misdemeanor[,]" unless "the criminal pleading alleges that the violation was committed intentionally, and upon trial it is specifically found that the violation was committed intentionally," then the violation "shall be a Class 1 felony." N.C. Gen.Stat. § 90-108(b) (2003).
Rattis does not argue that the State failed to present substantial evidence of all of the elements of this charge. Rather, he contends that neither the jury nor the trial court specifically found that Rattis intentionally violated N.C.G.S. § 90-108(a), and thus the violation of N.C.G.S. § 90-108(a) should have only been a Class 1 misdemeanor, not a Class 1 felony. Because Rattis does not present an argument in support of this assignment of error, the assignment of error is deemed abandoned pursuant to N.C.R.App. P. 28(b)(6).
Furthermore, though Rattis did not object to the jury instructions at trial and did not assign them as error, we note that the trial court's instruction to the jury on maintaining a place to keep controlled substances included intent as one of the elements of the crime. Specifically, the trial court stated:
[Rattis] has also been charged with intentionally keeping or maintaining a building, which is used for the purpose of unlawfully keeping or selling controlled substances. For you to find [Rattis] guilty of this offense, the State must prove two things beyond a reasonable doubt. First, that [Rattis] kept or maintained a building, which was for the purpose of unlawfully keeping or selling marijuana. Marijuana is a controlled substance, the keeping or selling of which is unlawful. And, second, that [Rattis] did this intentionally.
Since intent was an element of the crime, the jury had to find this element beyond a reasonable doubt to convict Rattis of maintaining a place for keeping a controlled substance. Thus, by finding Rattis guilty of maintaining a place for keeping controlled substances, the jury inherently found that Rattis did so intentionally. The trial court did not err in treating Rattis's violation of N.C.G.S. § 90-108(a) as a felony.
III.
Rattis presents no additional assignments of error, but Harrington argues that the trial court erred in admitting evidence of Harrington's other crimes or wrongs pursuant to Rules 403 and 404 of the North Carolina Rules of Evidence. Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. Admissible evidence may include evidence of an offense committed by a juvenile if it would have been a Class A, B1, B2, C, D, or E felony if committed by an adult.
N.C. Gen.Stat. § 8C-1, Rule 404(b) (2003). "The list of permissible purposes for admission of `other crimes' evidence is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime." State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53, cert. denied, 516 U.S. 994, 116 S. Ct. 530, 133 L. Ed. 2d 436 (1995). "Once the trial court determines evidence is properly admissible under Rule 404(b), it must still determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." State v. Bidgood, 144 N.C.App. 267, 272, 550 S.E.2d 198, 202 (citing N.C. Gen.Stat. § 8C-1, Rule 403), cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001). "That determination is within the sound discretion of the trial court, whose ruling will be reversed on appeal only when it is shown that the ruling was so arbitrary that it could not have resulted from a reasoned decision." Bidgood, 144 N.C.App. at 272, 550 S.E.2d at 202.
The State presented evidence of two prior wrongs or acts committed by Harrington. The first occurred a year and a half prior to the present charges. Harrington *348 was a passenger in a vehicle that had been stopped for a traffic violation and the officer testified at the present trial that he had smelled marijuana coming from the vehicle. Harrington was not charged with any marijuana offense and all other charges against him were dismissed. The second prior act that was admitted into evidence occurred more than a year before the present charges. An officer had found Harrington asleep at the wheel of a vehicle, and a bag of marijuana and a set of scales had been plainly visible inside the vehicle.
Though neither of these prior incidents involved Rattis or Veal, the State offered these prior acts as evidence of conspiracy. In each incident, the officers had asked Harrington where he was living, and Harrington had responded that he lived at 6121 Conoway Drive. In the present case, the State argued that this evidence should be admissible as evidence of conspiracy because it corroborated Norfleet's testimony that defendants and Veal had previously lived together at 6121 Conoway Drive. Moreover, the State argued that the evidence was relevant to the conspiracy charge because the scales seized during the second prior act were the same type of scales found at the apartment. Since this evidence of prior acts by Harrington was relevant to an issue other than his propensity to commit the crime, the trial court did not err in determining that this evidence was admissible under Rule 404(b) of the North Carolina Rules of Evidence. N.C. Gen.Stat. § 8C-1, Rule 404(b) (2003). The question before us is whether the trial court abused its discretion in determining that the probative value of this evidence of prior bad acts outweighed the possible prejudicial effect. See N.C. Gen.Stat. § 8C-1, Rule 403 (2003).
In engaging in a Rule 403 analysis, "`the ultimate test of admissibility is whether [the prior acts] are sufficiently similar and not so remote'" to the charges or acts presently at issue. State v. Ferguson, 145 N.C.App. 302, 305, 549 S.E.2d 889, 892 (quoting State v. West, 103 N.C.App. 1, 9, 404 S.E.2d 191, 197 (1991)), disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001). Harrington argues that the prejudicial effect of this evidence outweighed the probative value because neither of the prior acts was sufficiently similar to the current charges. He argues that both of these prior incidents occurred in vehicles in which he was either a passenger or driver. He further argues that the prior acts involved only the odor of marijuana, or a small bag of marijuana, while the current charges involve a trafficking amount of marijuana found in a residence. Harrington also argues that as these prior acts occurred at least a year before the current charges, they were too remote in time to be probative.
Our Court has held that "[t]he similarities between the other crime, wrong or act and the crime charged need not, however, `rise to the level of the unique and bizarre in order for the evidence to be admitted under Rule 404(b).'" Ferguson, 145 N.C.App. at 306, 549 S.E.2d at 892 (quoting State v. Thomas, 350 N.C. 315, 356, 514 S.E.2d 486, 511 (1999)). Furthermore, "remoteness in time generally goes to the weight of the evidence not its admissibility." Ferguson, 145 N.C.App. at 306, 549 S.E.2d at 892. The trial court admitted evidence of the prior acts as being relevant to the issue of conspiracy because the testimony offered included facts that were sufficiently similar to facts involved in the present charges. Those similar facts were that Harrington had lived at 6121 Conoway Drive and had scales similar to those found at the apartment. Thus, the trial court's Rule 403 determination was not "so arbitrary that it could not have resulted from a reasoned decision." See Bidgood, 144 N.C.App. at 272, 550 S.E.2d at 202.
Moreover, Harrington does not show that a different result would have been reached by the jury if this evidence had been excluded. "The party who asserts that evidence was improperly admitted usually has the burden to show the error and that he was prejudiced by its admission." State v. Anthony, 133 N.C.App. 573, 579, 516 S.E.2d 195, 199 (1999), aff'd, 351 N.C. 611, 528 S.E.2d 321 (2000). Furthermore, "evidentiary errors are harmless unless defendant proves that absent the error, a different result would have been reached." State v. Campbell, 133 N.C.App. 531, 540, 515 S.E.2d 732, 738, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 *349 (1999). Even assuming arguendo that the trial court erred, given the physical evidence found at the house showing that Harrington was trafficking in marijuana, and Norfleet's testimony linking Harrington to Rattis, Veal, and to the apartment, Harrington has failed to show that he was prejudiced by the admission of his prior acts. We overrule this assignment of error.
IV.
Harrington next argues that the trial court erred in considering Harrington's decision to have a jury trial when imposing Harrington's sentence. A trial court, at sentencing, may not punish a defendant for exercising his constitutional right to a jury trial. State v. Cannon, 326 N.C. 37, 39, 387 S.E.2d 450, 451 (1990). However, for us to properly review this assignment of error, Harrington must have presented this argument to the trial court. The record shows that Harrington did not object at trial to what he now deems to be improper statements by the trial court. He therefore failed to preserve this issue for appeal. See N.C.R.App. P. 10(b)(1). Though an issue not properly preserved at trial may be reviewed as plain error, N.C.R.App. P. 10(c)(4), Harrington does not argue plain error, and therefore waives his right to plain error review.
We note that in our review of the record, we see no error or plain error in the trial court's statements to Harrington. To the contrary, the trial court ensured that defendants were informed of the implications of their pleas in light of the substantial evidence against them. During the trial, when Veal changed his plea, the trial court offered defendants the opportunity to receive less than the minimum sentences they would receive if convicted if they chose to change their pleas. The trial court further explained to defendants:
If you are convicted, there are minimum sentences that you'll have to serve. And I'm not saying that you'll get more than this. You certainly won't get any less because of the minimum sentences. If you are found guilty, I'll make a judgment at that time.
When Harrington was convicted, the trial court sentenced him to the statutory minimum amount of time in prison for each conviction, being thirty-five to forty-two months. See N.C. Gen.Stat. § 90-95(h)(1)(b) (2003). The trial court also consolidated the charges against Harrington of maintaining a place for keeping a controlled substance and conspiracy to traffic in marijuana for sentencing. The trial court did not err.
V.
Finally, Harrington argues that he received ineffective assistance of counsel and was thereby denied his Sixth Amendment right to a jury trial when his counsel conceded Harrington's guilt in the closing argument without having Harrington's consent. Generally, assistance of counsel is deemed ineffective when a defendant shows that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, 693 (1984). However, in certain circumstances, the deficiency of the counsel's performance is so great that prejudice need not be argued. United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657, 667 (1984). Following Strickland and Cronic, our Supreme Court determined that a defendant receives per se ineffective assistance of counsel when "the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent." State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 106 S. Ct. 1992, 90 L. Ed. 2d 672 (1986). However, our Supreme Court also held in State v. Gainey that an
argument that "the defendant is innocent of all charges, but if he is found guilty of any of the charges it should be of a lesser crime because the evidence came closer to proving that crime than any of the greater crimes charged, is not an admission that the defendant is guilty of anything, and the rule of Harbison does not apply."
Gainey, 355 N.C. 73, 92-93, 558 S.E.2d 463, 476 (quoting State v. Harvell, 334 N.C. 356, 361, 432 S.E.2d 125, 128 (1993)), cert. denied, 537 U.S. 896, 123 S. Ct. 182, 154 L. Ed. 2d 165 (2002).
*350 Harrington argues that his counsel conceded Harrington's guilt in front of the jury during the closing argument without Harrington's permission, when his counsel said: "I'd submit to you that [Harrington] is a small time player in this operation. He hadn't fully moved [into] the league that [Rattis] was in." However, when viewed in context, we do not find that this statement conceded any crime. Harrington's counsel was recalling Norfleet's testimony to the jury when he made the above statement. Harrington's counsel was using Norfleet's testimony that she and Harrington had smoked marijuana together to demonstrate that Harrington was not in the business of selling or trafficking marijuana by contrasting it with Norfleet's testimony that Rattis did not smoke marijuana because he did not want to reduce his profits. Specifically, counsel said: "If you're a dealer, you're not going to be using your own product and wasting it. You're going to be trying to turn a profit, make as much money off of it. That's not what [Harrington] was doing." Counsel's next statement was the challenged statement:
I'd submit to you that [Harrington] is a small player in this operation. He hadn't fully moved [into] the league that [Rattis] was in. Just like [Harrington] hadn't fully moved [into the house]. He was still on the outside looking in. And I don't think he knewor I submit to you, based on the evidence, that he knew what was in those barrels andall the weapons in this house.
The trial court interrupted counsel's closing argument at this point and asked the jury to leave the courtroom.
Rather than being a concession of Harrington's guilt, counsel's statement to the jury suggested that Harrington may have been guilty of lesser offenses involving marijuana in the past, such as smoking marijuana, but was not guilty of trafficking in marijuana. Taken in context, counsel's statement was consistent with the overall theory of his closing argument that Harrington was not guilty of trafficking in marijuana. See Gainey, 355 N.C. at 93, 558 S.E.2d at 476 (finding no error when the defense counsel stated that the defendant was guilty of a lesser crime if guilty of anything, and when the consistent theory presented to the jury was that the defendant was not guilty).
Furthermore, Harrington was not prejudiced, because both the trial court and Harrington's counsel took adequate measures to correct any prejudicial effect of counsel's statement. See State v. Mason, 159 N.C.App. 691, 693-94, 583 S.E.2d 410, 411-12 (2003) (stating that any prejudice to the defendant when the defense counsel mistakenly said that his client should not be found innocent "was cured by additional argument made by defense counsel emphasizing defendant's innocence"). As mentioned above, the trial court stopped counsel's closing argument as soon as the challenged statement was made, and excused the jury. The trial court then gave Harrington an opportunity to object to his counsel's statement, gave a correcting instruction to the jury when it returned, and allowed Harrington's counsel the opportunity to explain his statement to the jury. Counsel explained:
The lawyer is supposed to be very careful with the words he chooses and uses in the courtroom. And when I said that [Harrington] was a small player in this, I was referring to the testimony of Ms. Norfleet. That's basically what she said. I'm not saying he's guilty of what he's charged with in any way. I'm saying that he wasn't living at that place on a permanent basis. He didn't know that the marijuana was out in the garage. He didn't know all the paraphernalia, the guns and everything else that's been introduced into evidence was in that house.
What I was trying to imply and a bit clumsily, I guess, was that [Harrington] he may have smoked marijuana in the past. And he may have hung out with with friends who you wouldn't want your son or daughter to hang out with. But he hadn't fully moved in with them to the point that he was guilty of what he's charged with, that he was in conspiracy with [Rattis].
Thus, Harrington has failed to show he received ineffective assistance of counsel, and we overrule this assignment of error.
*351 Harrington's remaining assignments of error are deemed abandoned pursuant to N.C.R.App. P. 28(b)(6) for lack of argument.
We vacate defendants' convictions of trafficking in marijuana by transportation. We find no error in defendants' additional convictions.
Vacated in part, no error in part.
Judges WYNN and TYSON concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353572/ | 62 S.W.3d 922 (2001)
In re Clarence Randmond KNOTTS.
No. 06-01-00162-CV.
Court of Appeals of Texas, Texarkana.
Submitted December 18, 2001.
Decided December 18, 2001.
Hon. H. G. Andrews, Jr., Judge.
Donald W. Dowd, Lovelace & Dowd, Inc., Linden, for relator.
Mary C. Strand, Ric Freeman, Tyler, for real party in interest.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
CORNELIUS, Chief Justice.
Clarence Knotts has filed a petition for writ of mandamus asking us to direct the *923 trial court to vacate an order that granted a motion to transfer a child custody proceeding from Titus County to Rusk County. The underlying proceeding is a motion to modify the parent-child relationship.
The mother lives in Rusk County and has lived there since 1997. The father lives in Titus County. The mother and father were divorced by a judgment rendered by the District Court of Titus County, and that court retained continuing jurisdiction over the parties. The child, Bradley Knotts, is fourteen years old and has lived with his mother in Rusk County since 1997, except for a brief time before the motion to modify was filed.
The father, the relator, argues that because the child has lived in Titus County for over six months, the court erred in transferring the case to Rusk County, where the child had previously resided with his mother.
The applicable statute, Tex. Fam.Code Ann. § 155.201(b) (Vernon Supp.2002), provides that if a proceeding is filed in the county of continuing jurisdiction, and if the child has resided in another county for over six months, the court must transfer the proceeding to the other county. The facts here are that the proceeding was filed in Titus County, the county of continuing jurisdiction, and the child resided for several years in Rusk County, but had been with his father in Titus County less than two months before the motion to modify was filed.
As a mandamus proceeding, the question before us is whether the trial court had no authority to take any action other than to retain the case in Titus County.[1]
There are two statutes that apply to this situation. The mandatory transfer provision is found in Tex. Fam.Code Ann. § 155.201(b):
If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.
The method of determining the county of residence is set out in Tex. Fam.Code Ann. § 155.203 (Vernon 1996):
In computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child's principal residence during the six-month period preceding the commencement of the suit.
Knotts argues that during the six months before the filing of the motion to modify, the child principally lived with him in Titus County, so the transfer was improper. He further argues that he has an agreement with the child's mother that shows an intention to leave the child with him in Titus County for an extended period of time.
The evidence shows that the child stayed in his father's home in Titus County for *924 five months before the hearing on the motion to modify. But the child lived with his mother in Rusk County for four years and had only been with his father for less than two months before he filed the motion to modify on July 27, 2001. And for a substantial portion of the time the child was in Titus County, it was pursuant to a visitation order issued by the trial court in the divorce. Under these facts, we cannot conclude that the court abused its discretion by ordering the case transferred to Rusk County.
Knotts also argues that his agreement with the mother about the custody arrangement required the court to find that the residence of the child was now with him in Titus County. The "agreement" is a letter from the mother's new husband to Knotts in response to some other communication. In the letter the new spouse, apparently in response to some question about the child, wrote:
It is not likely that Bradley has thought this out very well. Therefore a temporary change to equal one school year with a definite end at that time and an option to revisit custody at that time makes more sense to us.
This is not an agreement; furthermore, the mother's new spouse would not have authority to make an agreement without the approval of the mother. Even if there was an agreement, it would not bind the court as to a finding of residence. We cannot conclude that the trial court abused its discretion by finding that the child had not resided in Titus County for six months before the commencement of the action to modify.
Because we find that the Relator has not shown himself entitled to the relief sought, we deny the petition for writ of mandamus.
NOTES
[1] If the movant complies with the provisions of Tex. Fam.Code Ann. § 155.201(b) (Vernon Supp.2002), transfer of a case to a county where the child has resided for more than six months is a mandatory ministerial duty. Further, an interlocutory appeal is not available to contest the court's decision. Tex. Fam.Code Ann. § 155.204(e) (Vernon Supp.2002). Relief by mandamus is appropriate in those cases where the facts and the law permit only one decision and the trial court refused to make it. See Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987); Martinez v. Flores, 820 S.W.2d 937, 938 (Tex.App.-Corpus Christi 1991, orig. proceeding). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3066619/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edwin Plotts, :
Petitioner :
:
v. : No. 2277 C.D. 2014
: Submitted: August 14, 2015
Workers’ Compensation Appeal :
Board (TriTech Systems, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: October 15, 2015
Petitioner Edwin Plotts (Claimant) petitions for review of an order of
the Workers’ Compensation Appeal Board (Board). Following remand from the
Board, a Workers’ Compensation Judge (WCJ) rendered factual findings regarding
Claimant’s earning power based on a labor market survey submitted into evidence
during the WCJ’s hearings. The Board affirmed the WCJ’s findings. The only
question on appeal to this Court is whether the WCJ erred in crediting the labor
market survey where the survey failed to consider Claimant’s adjudicated mental
health injury in identifying available and suitable jobs. We affirm the Board’s
order.
On November 30, 2006, Claimant sustained a cervical strain while
working for TriTech Systems, Inc. (Employer), from which he became totally
disabled. Claimant received benefits pursuant to a Notice of Compensation
Payable (NCP). On March 2, 2007, Claimant returned to work with no loss of
wages, and, pursuant to a supplemental agreement, Employer suspended
Claimant’s disability benefits. On March 18, 2008, Employer reinstated
Claimant’s benefits because of a recurrence of his disability.
On August 10, 2009, Claimant filed a claim petition alleging that he
sustained a new work injury on March 18, 2008, involving his neck, upper
extremities, and lower back. On September 9, 2009, Employer filed a modification
petition seeking a reduction in Claimant’s benefits based upon its assertion that,
based upon a labor market survey, Claimant was able to return to work in some
capacity. On September 27, 2010, Claimant filed a review petition, seeking to add
a lower back injury to the injuries identified in the NCP. On December 27, 2010,
Claimant filed another review petition, seeking to add a mental health injury to the
injuries identified in the NCP. On January 24, 2011, Claimant filed a claim
petition, asserting that he sustained a work-related injury to his right shoulder on
January 8, 2008.
The WCJ, after consolidating the modification, review, and claim
petitions, conducted several hearings. The WCJ concluded that (1) Employer
failed to sustain its burden of proof with regard to its modification petition;
(2) Claimant failed to sustain his burden of proof that he sustained a work-related
low back injury; (3) Claimant sustained his burden of proof that he sustained a
mental health injury as a consequence of his identified work-related injury, but
Claimant did not suffer any disability as a result of that injury; (4) Claimant failed
to sustain his burden of proof as to his alleged January 8, 2008 right shoulder
injury; and (5) the injury that Claimant alleged occurred on March 18, 2008,
constituted a recurrence of his initial work-related injury.
2
Both Employer and Claimant filed appeals from the WCJ’s decision
with the Board. Employer contended that the WCJ erred in denying its
modification petition. Claimant contended only that (1) the WCJ erred in finding
that Claimant did not sustain a work-related lower back injury and (2) the WCJ
erred in concluding that (a) Claimant did not sustain his burden of proof regarding
his alleged lower back injury, and (b) the incident on March 18, 2008, resulted in
the recurrence of Claimant’s original work injury. Claimant did not dispute the
WCJ’s finding and conclusion that Claimant’s mental health injury was not
disabling.
The Board, addressing only the issues raised by the parties, concluded
that the WCJ erred in its evaluation of Employer’s modification petition. The
Board remanded the matter to the WCJ for the sole purpose of rendering new
findings of fact, based upon the existing record, which included Employer’s labor
market survey, regarding the appropriate measure of Claimant’s earning power.
After the WCJ issued new findings and conclusions on that discrete issue,
Claimant again appealed to the Board. In that second appeal, Claimant asserted
that the WCJ did not render a reasoned decision, contending that “the WCJ failed
to consider Claimant’s psychological injuries related to the work incident.”
(Reproduced Record (R.R.) at 465.) Claimant, pointing to the WCJ’s finding that
Claimant will need medication and therapy to treat his mental health injury,
asserted that the WCJ failed to render findings regarding the suitability of the jobs
in the labor market survey in light of Claimant’s mental health injury.
The Board rejected Claimant’s arguments, reasoning that its remand
order called only for the WCJ to render findings regarding Claimant’s earning
power based upon the labor market survey and to order a corresponding
3
modification of benefits. The Board concluded that the WCJ “appropriately
confined his decision and order on remand to that specified issue.” (Board
Opinion at 4.) The Board also noted that the WCJ had determined that Claimant’s
mental health injury was not disabling. (Id. n.5.)
Claimant petitioned this Court for review of that order,1 raising the
single question of “[w]hether the Board erred in finding that the jobs contained in
the labor market survey were suitable for the Claimant.” In his brief, Claimant
argues generally that Employer failed to meet part of its burden of proof with
regard to the suitability of jobs reflected in the labor market survey in light of
Claimant’s mental health injury. Although an employer bears the burden of proof
in seeking to obtain a modification of benefits,2 in this case, the WCJ
contemporaneously considered Claimant’s review petition seeking to add the
mental health injury as one of Claimant’s identified injuries and Employer’s
modification petition. In that regard, Claimant bore the burden of proof to
demonstrate that he sustained a work-related injury that was not identified in the
initial notice of compensation payable or that a new injury had arisen as a
consequence of the original injury. Aldridge v. Workers’ Comp. Appeal Bd.
(Kmart Corp.), 113 A.3d 861, 867 n.7 (Pa. Cmwlth.), appeal denied, 117 A.3d 298
(Pa. 2015). In order to obtain benefits for a work-related injury, a claimant also
1
Our review is limited to considering whether substantial evidence supports necessary
factual finding, and whether an error of law or violation of constitutional rights was committed
below. 2 Pa. C.S. § 704.
2
“An employer may obtain a modification . . . of [a] claimant’s benefits based on
evidence of [a claimant’s] earning power alone.” Anderson v. Workers’ Comp. Appeal Bd. (F.O.
Transport), 111 A.3d 238, 246 (Pa. Cmwlth. 2015).
4
must demonstrate that he or she has suffered a loss of earning power because of the
injury. See Zuchelli v. Workers’ Comp. Appeal Bd. (Indiana Univ. of Pa.), 35 A.3d
801, 804 (Pa. Cmwlth. 2011) (citing Potere v. Workers’ Comp. Appeal Bd.
(Kemcorp), 21 A.3d 684, 689-90 (Pa. Cmwlth. 2011) (claimant bears burden to
establish connection between work and injury and that disability arose as
consequence of injury) and Coyne v. Workers’ Comp. Appeal Bd. (Villanova
Univ.), 942 A.2d 939, 945 (Pa. Cmwlth.), appeal denied, 960 A.2d 457 (Pa. 2008)
(burden of proof never shifts to employer to prove disability)).
Here, the WCJ found that Claimant did sustain a mental health injury
but that the injury did not cause any disability. Claimant did not challenge that
determination in his first appeal to the Board. On remand, then there was no need
for the WCJ to “take into account” the mental health injury that Claimant proved to
be work-related, because the WCJ had already determined that the mental health
injury did not cause any disability. Consequently, Employer, in its modification
petition, was not required to prove that the jobs in the labor market survey were
suitable to accommodate Claimant’s non-disabling mental health injury. The
WCJ, therefore, could rely on Employer’s labor market survey on remand, and the
Board did not err in affirming the WCJ’s decision following remand.
P. KEVIN BROBSON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edwin Plotts, :
Petitioner :
:
v. : No. 2277 C.D. 2014
:
Workers’ Compensation Appeal :
Board (TriTech Systems, Inc.), :
Respondent :
ORDER
AND NOW, this 15th day of October, 2015, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
P. KEVIN BROBSON, Judge | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3066621/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
:
v. : No. 915 C.D. 2015
: Submitted: July 24, 2015
Theodore Cash :
Appellant :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 15, 2015
In this case involving the act commonly known as the Controlled
Substances Forfeiture Act (Forfeiture Act),1 Theodore Cash, representing himself,
asks whether the Court of Common Pleas of the 39th Judicial District (Franklin
County Branch) (trial court) erred in ordering the forfeiture of $1,030 in U.S.
Currency and three cellular phones. Cash argues the trial court erred in: denying
his request for counsel; failing to respond to two of his motions; denying his
motion to vacate the judgment of forfeiture; excluding evidence in the form of
bank statements and student loan documents; and, finding a nexus between the
U.S. Currency and three cellular phones and any unlawful activity. Upon review,
we affirm in most respects.
1
42 Pa. C.S. §§6801-6802.
I. Background
In July 2012, Cash was charged with delivery of cocaine and criminal
use of a communication facility. Several months later, Cash pled guilty to delivery
of cocaine. On that same date, he was sentenced to 24 months to 60 months in a
state correctional institution. As a result of the plea agreement, the criminal use of
a communication facility charge was dismissed.
In May 2014, Cash, representing himself, filed a motion for return of
property through which he sought the return of items seized by the Pennsylvania
State Police (PSP). The specific items are: $1,030 in U.S. Currency; one HTC 4G
cellular phone; one Apple iPhone; one white HTC cellular phone; one eMachines
notebook computer; a notebook computer carrying pouch, clothes, and a backpack.
The trial court directed the Commonwealth to file a response and scheduled a
hearing on the motion.
Shortly thereafter, the Commonwealth filed an answer to the motion
for return of property and a petition for forfeiture. The Commonwealth averred the
items sought by Cash were seized during a traffic stop after Cash engaged in the
sale of a controlled substance. The Commonwealth argued that seizure of the
items was authorized under the Forfeiture Act.
The trial court subsequently held a hearing, at which the
Commonwealth presented the testimony of PSP Troopers Rodney Fink and Joseph
Lauricia and William G. Confer. The Commonwealth also presented several
2
documentary exhibits. Cash testified by way of video conference from a state
correctional institution.
After the hearing, the trial court issued a decision in which it
explained that at the hearing, the Commonwealth presented the testimony of
Trooper Fink, a member of the PSP’s Vice Narcotics Unit. Trooper Fink testified
that on June 26, 2012, he arranged a controlled buy of crack cocaine through the
use of a confidential informant (CI). The CI was to purchase the cocaine from
Cash. The drug buy was arranged using a cellular phone. Trooper Fink stated that
he searched the CI prior to the buy, provided the CI with $300 in prerecorded bills,
and watched the CI meet with Cash for the transaction. Upon his return to Trooper
Fink’s vehicle, the CI provided Trooper Fink with an off-white substance (that
Trooper Fink believed to be crack cocaine) which he obtained in exchange for the
$300. Subsequent laboratory testing confirmed that the substance was, in fact,
crack cocaine. Trooper Fink stated that after the controlled drug buy, he and the
other officers maintained surveillance of Cash and learned that Cash had an
outstanding parole warrant.
The Commonwealth also presented the testimony of Trooper Lauricia,
who testified he performed a traffic stop of Cash’s vehicle and searched him
incident to the arrest on the outstanding parole warrant. The search yielded $1,330
from Cash’s person, which included the $300 in prerecorded buy money used in
the drug transaction. Trooper Lauricia learned that the vehicle Cash drove was a
rental vehicle. A search of the vehicle uncovered three cellular phones in the
3
center console and a notebook computer. Trooper Lauricia seized the items and
the $1,330.
Trooper Fink testified it was common for individuals involved in
illegal drug activities to have several “burner phones,” which are used to facilitate
those activities. Certified Record (C.R.), Item No. 26, Tr. Ct. Hr’g, Notes of
Testimony (N.T.), 7/31/14, at 29. The cellular phones were provided to the
Franklin County Drug Task Force for analysis, and the other items were
maintained at the Chambersburg Police Department.
The Commonwealth also presented evidence from Trooper Confer,
PSP’s evidence custodian at the PSP barracks in Chambersburg. Trooper Confer
testified that generally, upon the conclusion of a case, police arrange for seized
property to be destroyed. Trooper Confer testified there are specific rules that
govern the destruction of seized property. He stated that pursuant to PSP’s policies
and procedures, once a destruction order is submitted, the property is destroyed.
Trooper Confer testified that the notebook computer, backpack and clothing seized
during the traffic stop as well as the crack cocaine were destroyed pursuant to PSP
regulations and procedures.
For his part, Cash testified he purchased the items seized with
financial aid he received for his enrollment at Reading Area Community College.
He also testified he made monthly payments for the cellular phones seized. Cash
attempted to present a document regarding his financial aid and a few pages of a
bank statement; however, the trial court sustained the Commonwealth’s objections
4
to the admission of these documents. On cross-examination, Cash admitted that,
on the date of the traffic stop during which the items were seized, he was arrested
on an outstanding parole warrant that was issued after he absconded from a
halfway house after he was ordered to return to a state correctional institution for a
parole violation. He further testified that, after he absconded, which was three
months before the traffic stop, he was not employed. Cash also testified he pled
guilty to selling crack cocaine to the CI.
Based on the evidence presented, the trial court first determined the
$1,030 was subject to forfeiture. The trial court stated that, pursuant to Section
6801(a)(6) of the Forfeiture Act, when currency is found “in close proximity” to
controlled substances that are unlawfully possessed, such currency is rebuttably
presumed to be proceeds derived from the sale of a controlled substance in
violation of the Forfeiture Act. The trial court explained the Commonwealth bore
the initial burden of proving forfeiture was appropriate under Section 6801(a)(6).
In order to meet that burden, the Commonwealth was required to establish, by a
preponderance of the evidence, that a nexus existed between the money seized and
a violation of the Controlled Substance, Drug, Device and Cosmetic Act2 (Drug
Act). See Commonwealth v. $6,425.00 Seized from Esquilin, 880 A.2d 523 (Pa.
2005).
Once the Commonwealth meets its initial burden of showing a nexus
exists between the seized property and the illegal drugs by a preponderance of the
evidence, the burden shifts to the forfeiture claimant to rebut the presumption that
2
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780–101–780–144.
5
the money is forfeitable. Id. Pursuant to 42 Pa. C.S. §6802(j), in order to rebut the
presumption, a forfeiture claimant must establish: (1) he owned the money; (2) he
lawfully acquired it; and, (3) it was not unlawfully used or possessed by him. Id.
Here, the trial court stated that, in his written submissions, Cash
alleged that he withdrew $1,300 from his bank account in order to buy a car
outside of Chambersburg. In support, he attached to his filing a bank statement
showing a June 12, 2012 withdrawal of $1,300. Further, Cash claimed the money
deposited into his bank account was financial aid in the amount of $4,500. He
maintained there was an insufficient nexus between the money seized and any
alleged criminal activity, and the money was not income from illegal activity.
Rejecting Cash’s assertions, the trial court explained the
Commonwealth presented evidence that, upon Cash’s arrest, he was searched and
police recovered the $300 in prerecorded buy money that was previously given to
the CI. An additional $1,030 was found on Cash’s person. The Commonwealth’s
evidence indicated all the money was bound together in the same pocket, except
for thirteen one-dollar bills. The trial court stated the Commonwealth met its
initial burden of showing the forfeiture of the $1,030 was appropriate as the money
was in close proximity to a drug transaction and was on Cash’s person with $300
of prerecorded buy money.
The trial court further stated Cash did not adequately rebut the
presumption that forfeiture was appropriate. The trial court rejected Cash’s
explanation that he withdrew the money seized two weeks earlier in order to
6
purchase a car. Moreover, the trial court explained, the fact that police did not
observe enough sales to account for the total amount of money in Cash’s pocket
did not mean the money could not be related to other drug transactions. Esquilin.
As a result, the trial court found the $1,030 was in close proximity to the
unlawfully possessed crack cocaine, and Cash did not rebut the presumption that
the money was forfeitable.
As to the three cellular phones, the trial court explained that, similar to
the forfeiture of money, in order to forfeit property, the Commonwealth must
prove a nexus exists between the unlawful activity and the property subject to
forfeiture. Commonwealth v. 1999 Lexus ES300 (Pa. Cmwlth., No. 1984 C.D.
2008, filed May 14, 2009), 2009 WL 9099777 (unreported) (citing Commonwealth
v. Mitchell, 833 A.2d 1220 (Pa. Cmwlth. 2003)). The Commonwealth must show,
by a preponderance of the evidence, that a nexus exists between the property and a
violation of the Drug Act. Id. The Commonwealth may meet its burden through
circumstantial evidence; it need not produce evidence directly linking the seized
property to the illegal activity in order to show the requisite nexus. Id.
Again, similar to forfeiture proceedings involving money, once the
Commonwealth meets its initial burden of showing, by a preponderance of the
evidence, a nexus between the property at issue and the illegal activity the burden
shifts to the forfeiture claimant to show the property is not forfeitable. 42 Pa. C.S.
§6802(j); Commonwealth v. One (1) 1974 Chevrolet Box-Type Truck, 559 A.2d
76 (Pa. Cmwlth. 1989).
7
The trial court found the Commonwealth met its burden of proving a
nexus between the cellular phones and the unlawful activity. At the hearing, PSP
Trooper Fink testified that it is common for individuals involved in illegal drug
transactions to use multiple phones. The use of multiple phones, also known as the
use of “burner phones,” allows perpetrators to better hide their illegal activities
from authorities. In addition, Trooper Fink stated police observed Cash use a
cellular phone to arrange a cocaine delivery. Thus, the trial court stated, the
Commonwealth met its burden of proving a nexus between the three cellular
phones and the unlawful drug activity.
Moreover, the trial court rejected Cash’s assertions that the
Commonwealth failed to prove a nexus between the cellular phones and the
unlawful drug activity. As a result, the trial court determined the Commonwealth
proved, by a preponderance of the evidence, a nexus between the unlawful activity
and the three cellular phones found in the rental car; thus, forfeiture was proper.
However, as to the notebook computer, the notebook computer
carrying pouch, the backpack and the clothing seized, the trial court determined the
Commonwealth did not prove the requisite nexus.
Consequently, the trial court granted in part and denied in part Cash’s
motion for return of property and granted in part and denied in part the
Commonwealth’s forfeiture petition. Cash appealed to the Superior Court, which
transferred his appeal to this Court. After his appeal, the trial court directed Cash
to file a concise statement of the errors complained of on appeal, which he did. In
8
response, the trial court issued a supplemental opinion pursuant to Pa. R.A.P.
1925(a).
Thereafter, Cash filed a motion for appointment of counsel. The trial
court denied the motion based on the Pennsylvania Supreme Court’s holding that
an indigent forfeiture claimant did not have a constitutional right to counsel in a
civil forfeiture case under the Forfeiture Act. See Commonwealth v. $9,847.00
U.S. Currency, 704 A.2d 612 (Pa. 1997). However, the trial court granted Cash’s
motion requesting a copy of the transcript of the forfeiture hearing, and his motion
seeking leave to proceed in forma pauperis.
Also, after filing his appeal, Cash filed a motion requesting a hearing
to determine the equitable amount he should receive based on the destruction of the
items the trial court ordered returned to Cash. The trial court denied the motion on
the ground that Cash’s prior appeal of the trial court’s order divested it of
jurisdiction. This matter is now before us for disposition.
II. Issues
On appeal,3 Cash argues the trial court erred in: (1) denying his
request for counsel; (2) failing to respond to two of his motions; (3) denying his
motion to vacate the judgment of forfeiture; (4) excluding evidence in the form of
bank statements and student loan documents; and, (5) finding a nexus between the
$1,030 and the three cellular telephones and any unlawful activity.
3
Our review in an appeal from a forfeiture proceeding is limited to examining whether
findings of fact made by the trial court were supported by substantial evidence, and whether the
trial court abused its discretion or committed an error of law. Commonwealth v. 605 University
Drive, 104 A.3d 411 (Pa. 2014).
9
III. Discussion
A. Appointment of Counsel
Cash first asserts the trial court erred in denying his motion for
appointment of counsel. Citing $9,847.00 U.S. Currency, the trial court stated that,
under the Due Process Clause of the Fourteenth Amendment, an indigent forfeiture
claimant does not have a right to appointment of counsel in a civil matter under the
Forfeiture Act. Cash disagrees. He contends if an indigent person who is
incarcerated and at a severe disadvantage is not afforded counsel, there is nothing
to prevent prosecutors from taking advantage of the situation and essentially
“bullying” an individual who lacks an understanding of the law. Br. for Appellant
at 1. Cash argues the Equal Protection Clause, applicable in both civil and
criminal cases, should apply here. He asserts the Constitution protects life, liberty
and property. Merely because an individual lacks the finances to afford an
attorney, he should not be placed at a severe disadvantage based on his ignorance
of the law. See Lee v. Habib, 424 F.2d 891, 901 (D.C. Cir. 1970). We reject this
argument for several reasons.
First and foremost, as Cash points out, he did not seek appointment of
counsel until after the trial court’s July 2014 hearing and after the trial court issued
its forfeiture order in September 2014. Further, at the outset of the hearing, the
trial court confirmed that Cash intended to proceed on his own accord, and Cash
raised no objection to proceeding without counsel and representing himself at that
time. N.T. at 2. Indeed, in his concise statement of errors complained of on
appeal, Cash admitted he did not request counsel. C.R., Item No. 27 at 2. Thus,
Cash waived the issue that he was entitled to appointment of counsel. See Pa.
10
R.A.P. 302(a) (issues not raised in lower court are waived and cannot be raised for
the first time on appeal).
In any event, even if not waived, as the trial court correctly
recognized, our Supreme Court recently reiterated that “although in rem forfeiture
proceedings must comport with due process of law, property interests are generally
afforded less due process protections than liberty interests. Consequently, there is
no constitutional right to the appointment of counsel in a forfeiture proceeding.”
Commonwealth v. 605 University Drive, 104 A.3d 411, 426 (Pa. 2014) (citing
$9,847.00 U.S. Currency) (emphasis added).
Further, while Cash briefly mentions the Equal Protection Clause, he
does not clearly develop an argument as to how the denial of his motion for
appointment of counsel violates his equal protection rights. To that end, Lee, the
case cited by Cash, addresses the issue of whether indigent litigants are entitled to
free transcripts. Further, although the D.C. Circuit Court discussed equal
protection principles in Lee, it declined to decide the case on constitutional
grounds, turning instead to an analysis of statutory law to resolve the question of
an indigent litigant’s entitlement to a transcript. As a result, Lee would not compel
the result Cash seeks. Thus, even if Cash properly preserved this issue, his
argument fails.
B. Alleged Failure to Answer Motions
In his second issue, Cash states:
IN the matters complained of on appeal appellant
claimed the the [sic] courts errored [sic] by not answering
11
his request for transcripts and his request fro [sic]
appointment of counsel[.] The appellant waves [sic] this
issue due to the fact the courts did respond to both
request [sic] Therefor [sic] the alleged failure to answer
motions claim is waived.
Appellant’s Br. at 2.
In its Pa. R.A.P. 1925(a) Opinion, the trial court explained it did not
fail to respond to Cash’s motion for appointment of counsel and his transcript
request. Rather, the trial court denied Cash’s motion for appointment of counsel
based on the Supreme Court’s decision in $9,847.00 U.S. Currency, and it granted
Cash’s request for the forfeiture hearing transcript based on Lee. In the absence of
any clear explanation from Cash as to how the trial court’s orders were insufficient
to resolve these motions, we discern no error in this regard.
C. Motion to Vacate
Cash next contends that he raised certain due process violations in his
motion to vacate judgment of forfeiture. First, he argued the district attorney’s
office waited almost two years to file a forfeiture petition and advanced no reason
for the untimely delay. See United States v. Eight Thousand Eight Hundred &
Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555 (1983) (due process clause
protects individuals from prejudicial delays in forfeiture cases). Additionally,
Cash argues the district attorney’s office had already commenced forfeiture
proceedings, without proper authorization, by destroying certain items that were
ordered returned to him.
12
First, as to Cash’s claim regarding the timing of the Commonwealth’s
forfeiture petition, while Cash raised this issue in his answer to the
Commonwealth’s forfeiture petition, C.R., Item No. 17 at 3-4, he made no mention
of this issue at the forfeiture hearing. C.R., Item No. 26. Thus, he did not clearly
alert the trial court that this was an issue he wished to pursue. As a result, it is not
surprising that the trial court did not address this issue.
In any event, assuming Cash’s issue regarding the timing of the
Commonwealth’s forfeiture petition was properly preserved, Cash’s argument
fails. To that end, the Commonwealth was required to file its petition for forfeiture
within two years of when police confiscated the items from Cash. See
Commonwealth v. Allen, 107 A.3d 709, 721-22 (Pa. 2014) (Todd, J., dissenting)
(pursuant to 42 Pa. C.S. §5524(5), an action upon a statute for a forfeiture must be
commenced within two years). Here, police arrested Cash and seized the items at
issue on June 26, 2012. See N.T. at 14-18, 32-34. The Commonwealth filed its
forfeiture petition on June 4, 2014. C.R., Item No. 15. This filing was within the
required two-year period. As such, the Commonwealth’s forfeiture petition was
timely. Cash’s argument to the contrary fails.
Further, as to Cash’s claim regarding the destruction of items the trial
court ordered returned to Cash, three weeks after Cash filed his notice of appeal, he
filed a motion, titled “In the Matter of Property.” C.R., Item No. 28. Through that
motion, Cash noted that, after the forfeiture hearing, the district attorney’s office
indicated the seized items that the trial court ordered returned were destroyed
13
pursuant to PSP procedure. As a result, Cash sought a hearing to determine the
amount he should be reimbursed for these items.
In response, the trial court issued an order denying Cash’s motion,
explaining that, because Cash had already filed his notice of appeal, the trial court
lacked jurisdiction to proceed until after the final disposition of Cash’s appeal. We
discern no error in the trial court’s determination.
To that end, subject to certain exceptions not applicable here, Pa.
R.A.P. 1701(a) states: “After an appeal is taken … the trial court … may no longer
proceed further in the matter.” Id. Based on Pa. R.A.P. 1701(a), we agree with the
trial court that Cash’s filing of a notice of appeal divested the trial court of
jurisdiction to act on Cash’s subsequent motion seeking a hearing regarding the
destruction of the items the trial court ordered returned to Cash. Thus, the trial
court correctly determined it could not act on Cash’s motion. See 20A G. RONALD
DARLINGTON ET AL. PENNSYLVANIA APPELLATE PRACTICE §1701:3 (2014-2015
ed.) (citing Richland Twp. v. Prodex, Inc., 646 A.2d 652 (Pa. Cmwlth. 1994)
(where appellant appealed judgment of contempt and also filed motion to open or
strike judgment, which trial court did not rule on, this Court noted trial court could
not act on appellant’s motion to open or strike judgment because, once appeal was
filed, trial court no longer had jurisdiction)). As a result, we vacate the trial court’s
order denying Cash’s “In the Matter of Property” motion, without prejudice to
Cash’s ability to reapply for the same relief.
14
D. Evidentiary Rulings
Cash also takes issue with the trial court’s exclusion of his proffered
bank statement and student loan document, asserting, in the entirety:
[Cash] avers that the bank statement and student loan papers
that he submitted should have been allowed to be submitted
into evidence. [Cash] again returns to the issue of not having
an attorney appointed to repersent [sic] him[.] And the district
attorneys [sic] office taking advantage of the situation. [Cash]
did not go to law school nore [sic] does he have a degree in law
so how could he know that in order to submite [sic] documnets
[sic] to the court they had to be authenticated[.] [Cash] was
proceeding pro ,se [sic] so some levele [sic] of leinency [sic]
should have been afforded to him. SEE. exhibits A. B. C.
[Cash] argues [sic] that the documents that he submitted [sic]
where [sic] in fact revelant [sic] to the proceedings in question
because they demonstrated where he recived [sic] the money to
purchase the phones in question and to when he withdrew the
money in question from the bank. Also sence [sic] the district
attorney states that [Cash] had no means of financial support.
They demonstright [sic] how he was supporting him self [sic].
Appellant’s Br. at 3.
“The admission or exclusion of evidence is within the sound
discretion of the trial court ... [and][t]o constitute reversible error, an evidentiary
ruling must not only be erroneous, but also harmful or prejudicial to the
complaining party.” Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 927 A.2d
717 (Pa. Cmwlth. 2007), aff’d, 956 A.2d 967 (Pa. 2008).
Here, our review of the hearing transcript reveals the trial court
excluded two proffered exhibits: a past due notice for Cash’s student loan and a
few pages of a bank statement. However, after declining to admit the proffered
15
documents, the trial court proceeded to elicit testimony from Cash regarding each
document. Specifically, the trial court questioned Cash concerning the amount of
financial aid he received and the date he received it. N.T. at 8. The trial court also
elicited testimony regarding payments Cash made to a cellular phone carrier as
reflected in his bank statement. N.T. at 9-10.
In addition, in its opinion, the trial court expressly stated that Cash
showed he did, in fact, withdraw $1,300 from his bank account on June 12, 2012,
two weeks prior to the seizure of the money. Tr. Ct., Slip Op., 9/18/14, at 8. The
trial court, however, expressly rejected Cash’s claim that the purpose for the
withdrawal was to purchase a car. Id. Further, as set forth more fully below, the
trial court also specifically considered and rejected Cash’s claim that he paid for
the cellular phones from his financial aid funds. Id. at 9. Cash offers no
explanation as to what additional information he sought to present through the
admission of the two documents at issue. He also fails to assert any prejudice
resulting from the exclusion of the two documents. Under these circumstances, we
discern no reversible error in the challenged evidentiary rulings.
E. Nexus
As a final issue, Cash argues the trial court erred in finding a nexus
between the $1,030 and three cellular phones and a violation of the Drug Act. As
to the $1,030, Cash takes issue with the trial court’s statement that the $1,030 was,
in fact, in close proximity to the unlawfully possessed crack cocaine. In attempting
to justify its decision, Cash contends, the trial court mistakenly assumed the money
was present on Cash when the drug transaction occurred. Cash argues, however,
16
that the time between the transaction and the arrest was approximately five to six
hours, and there was no testimony that could support the trial court’s assumption.
Cash also asserts, because there were no drugs found on him during the stop or the
search, the “rebuttable presumption” found in Section 6801(B)(ii) of the Forfeiture
Act does not apply.
As to the three cellular phones, Cash contends there is no connection
directly or indirectly to any illegal transaction. See N.T. 28-29. To that end, at the
hearing, Cash asked Trooper Fink if there were any records of the phone numbers
used to facilitate the drug sale at issue, to which Trooper Fink replied “Yes.” N.T.
at 28. However, when Cash asked Trooper Fink if he had any personal knowledge
as to whether any of the cellular phones Cash possessed were used to conduct the
drug sale, Trooper Fink replied, “I don’t know.” N.T. at 29.
Cash further asserts the PSP had the phones in its possession for over
two years and did not confirm whether any of the phones were in fact used to
facilitate the drug transaction. Trooper Fink also indicated drug dealers normally
keep their business phones separate from their personal phones, and they also use
“burner” phones, which are “no contract” phones. N.T. at 29-30. Cash claims he
was not obligated to a “contract phone,” but he submitted a bank statement
showing he made a cellular phone payment using his debit card. He asserts if the
phones were “burner phones,” he would not have submitted a bank statement used
to pay a bill that could be traced to him.
17
Initially, we note, a trial court has discretion to grant or deny a
forfeiture petition. Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207 (Pa.
Cmwlth. 2006). We will not disturb the trial court’s decision absent an abuse of
that discretion. Id.
Moreover, a trial court’s factual findings are entitled to the same
deference as those of a jury. Commonwealth v. $23,320.00 U.S. Currency, 733
A.2d 693 (Pa. Cmwlth. 1999). As fact-finder, it is the trial court’s function to
decide what evidence is credible and to draw any reasonable inferences from the
evidence. Id.
Section 6801 of the Forfeiture Act states, in relevant part:
(a) Forfeitures generally.—The following shall be
subject to forfeiture to the Commonwealth and no
property right shall exist in them:
****
(6) (i) All of the following:
(A) Money, negotiable instruments, securities or other
things of value furnished or intended to be furnished by
any person in exchange for a controlled substance in
violation of [the Drug Act], and all proceeds traceable to
such an exchange.
(B) Money, negotiable instruments, securities or other
things of value used or intended to be used to facilitate
any violation of [the Drug Act]. …
42 Pa. C.S. §6801(a)(6)(i)(A), (B).
18
In a forfeiture proceeding, the Commonwealth bears the burden of
proving forfeiture is appropriate. Esquilin. The Commonwealth must show, by a
preponderance of the evidence, a nexus exists between the money and a violation
of the Drug Act. Id. A preponderance of the evidence standard is tantamount to a
“more likely than not” standard. Id. at 529. The Commonwealth need not produce
evidence directly linking the seized property to illegal activity in order to show the
requisite nexus. Id. Also, there is no requirement that illegal drugs be present at
the time of seizure; circumstantial evidence may show a party’s involvement in
illegal drug activity. Id.
Further, under Section 6801(a)(6)(ii) of the Forfeiture Act, “money
and negotiable instruments found in close proximity to controlled substances
possessed in violation of [the Drug Act] shall be rebuttably presumed to be
proceeds derived from the selling of a controlled substance in violation of [the
Drug Act].” 42 Pa. C.S. § 6801(a)(6)(ii) (emphasis added). When the rebuttable
presumption is triggered, “the Commonwealth satisfie[s] its evidentiary burden by
using the presumption.” Commonwealth v. $259.00 Cash U.S. Currency, 860
A.2d 228, 231 (Pa. Cmwlth. 2004).
Once the Commonwealth sustains its initial burden of proving a drug
nexus by a preponderance of the evidence, the Forfeiture Act directs that the
burden shifts to the claimant to rebut the presumption that the money is forfeitable:
(j) Owner’s burden of proof.—At the time of the
hearing, if the Commonwealth produces evidence that the
property in question was unlawfully used, possessed or
otherwise subject to forfeiture under section 6801(a), the
burden shall be upon the claimant to show:
19
(1) That the claimant is the owner of the property or the
holder of a chattel mortgage or contract of conditional
sale thereon.
(2) That the claimant lawfully acquired the property.
(3) That it was not unlawfully used or possessed by him.
In the event that it shall appear that the property was
unlawfully used or possessed by a person other than the
claimant, then the claimant shall show that the unlawful
use or possession was without his knowledge or consent.
Such absence of knowledge or consent must be
reasonable under the circumstances presented.
42 Pa. C.S. §6802(j). Thus, to discharge this burden, the claimant must establish
that: (1) he owned the money; (2) he lawfully acquired it; and (3) it was not
unlawfully used or possessed by him. Esquilin.
With regard to the required nexus and the shifting burden of proof,
our Supreme Court’s decision in Esquilin is instructive. There, police observed
Richard Esquilin (Esquilin) standing on the sidewalk with a cohort, who made
three crack cocaine sales. After the sales, Esquilin’s cohort handed the buy money
from two of the sales to Esquilin. Both Esquilin and his cohort were later arrested
and searched. A search of Esquilin uncovered $6,425 in cash, and a search of his
cohort uncovered three zip-lock packets of cocaine and $7.00 in cash. Esquilin
was initially charged with criminal conspiracy and possession with intent to
deliver, but the charges were dismissed. The Commonwealth filed a petition for
forfeiture of the $6,425 seized from Esquilin. The trial court ordered the $6,425
forfeited, finding the Commonwealth proved a nexus between the money seized
and the illegal drug transactions the police observed. It also rejected Esquilin’s
claim that the money was lawfully acquired.
20
On appeal, this Court affirmed in part and reversed in part. To that
end, this Court reversed the finding that all of the $6,425 was used to facilitate
violations, or represented the proceeds of violations, of the Drug Act. We believed
it was reasonable for the trial court to conclude that, as witnessed by the officers,
Esquilin was handed the money from the three drug sales, each transaction having
an estimated value of $20. Thus, this Court found sufficient support for the
forfeiture of $60 of the money found on Esquilin. As for the remainder, however,
this Court believed there was no evidence to support the conclusion that it was
connected to illegal drug dealing. Thus, we affirmed the trial court’s grant of the
forfeiture petition with respect to $60, but reversed as to the remaining $6,365.
On further appeal, however, our Supreme Court reversed this Court’s
order and reinstated the trial court’s forfeiture order, explaining:
[T]he Commonwealth’s documentary evidence proved
that … officers saw three typical street drug transactions,
in each of which money was handed to [Esquilin’s
cohort] in exchange for drugs. After two of those
transactions, [Esquilin’s cohort] handed the buy money
to [Esquilin]. Police officers subsequently apprehended
two of the three drug purchasers and confiscated zip-lock
packets of cocaine from each, thus proving that what had
looked like drug deals in fact were. Police then arrested
both [Esquilin’s cohort] and [Esquilin], finding three
additional zip-lock packets of cocaine and $7.00 cash on
[Esquilin’s cohort], and $6,425.00 in cash on [Esquilin].
All of the confiscated zip-lock packets were laboratory
tested, and each was found to contain cocaine. The trial
court found that this evidence sufficiently discharged the
Commonwealth’s initial burden of demonstrating a nexus
between the money seized from appellee and illegal
narcotics dealing …
21
We see no error in the trial court’s finding.
Although the nexus in this case may not have been
sufficient to connect all of the cash directly to the drug
trade (as proceeds or as facilitation) beyond a reasonable
doubt, we believe it clearly was sufficient under the
Forfeiture Act’s preponderance standard. …
The fact that [Esquilin] and [his cohort] were
observed in the actual act of dealing drugs supports the
trial court’s reasonable conclusion that it was more likely
than not that the entirety of the money [Esquilin] held
was ‘furnished or intended to be furnished ... in exchange
for a controlled substance … [or represents the] proceeds
traceable to such an exchange,’ or was ‘used or intended
to be used to facilitate [a] violation of [the Drug Act].’ 42
Pa. C.S. §6801(a)(6)(i)(A), (B). The trial judge was not
obliged to be so naïve as to assume that these three sales
were the only ones [Esquilin] and [his cohort] had
conducted, or intended to conduct. … The fact that the
police did not personally observe enough sales to account
for the total amount of money in [Esquilin’s] pocket does
not mean that the money cannot have been related to the
drug dealing enterprise. …
Moreover, in light of the fact that [Esquilin] and
[his cohort] were observed as they acted in concert, the
trial court did not err in invoking the ‘close proximity’
rebuttable presumption which is set forth in the
Forfeiture Act. … [T]he controlled substances
distributed and possessed by [Esquilin’s cohort] were in
sufficiently close proximity to the money [Esquilin]
retained—indeed, [Esquilin’s cohort] was ‘close enough’
to [Esquilin] that he could simply hand the cash over
from the sales—as to trigger the Forfeiture Act’s
rebuttable presumption that the money represented
‘proceeds derived from the selling of a controlled
substance in violation’ of the [Drug] Act. See 42 Pa.
C.S. § 6801(6)(ii). …
The [Commonwealth Court] panel deemed the
presumption inoperable because no drugs were found on
[Esquilin], and there was no specific finding that, at the
22
moment [Esquilin] and [his cohort] were arrested, they
were in close proximity. …
However distant from each other [Esquilin] and
[his cohort] may have been when arrested, the evidence
clearly established that they were close enough during
the conduct of the actual drug deals that [Esquilin’s
cohort]—who was in personal possession of the drugs—
could simply hand the cash proceeds of the sales over to
[Esquilin]—who was in personal possession of the cash.
Moreover, the cash from the three sales police observed
was in such intimate proximity with the rest of the cash
found upon [Esquilin] that it was commingled. …
The common, overriding difficulty in the
Commonwealth Court panel’s approach here consists in
its erroneous erection of artificial and absolutist
evidentiary requirements before individual facts and
circumstances may even be deemed relevant to the
question of whether a nexus exists between the money
and violations, or facilitations of violations, of the [Drug]
Act. In adopting this absolutist approach to its reviewing
function, the panel committed an error of law. For the
reasons we have stated above, the trial court, properly
considering the totality of the evidence and properly
drawing logical inferences from the evidence presented,
did not err in finding a nexus between the entire sum of
cash seized from appellee and violations of the [Drug]
Act.
Id. at 530-32, 533-34 (emphasis added). The Supreme Court further determined
the trial court did not err in rejecting Esquilin’s innocent owner defense. To that
end, Esquilin presented documentary evidence in an attempt to show he obtained
the money lawfully, and he withdrew the large sum of cash that he possessed two
weeks before his arrest in order to pay for the restructuring of a home he
purchased. The Court held the trial court did not err in rejecting these claims as
not credible.
23
Here, as to the $1,030 seized from Cash, the record reveals police
used a CI, who placed a call to Cash’s cellular phone and arranged to meet Cash at
a specified location. N.T. at 14. Police provided the CI with $300 in prerecorded
buy money and kept him under constant surveillance. N.T. at 15. The CI met with
Cash, entered the rented vehicle, drove around the block and returned to the same
previously specified location where the CI exited the vehicle. Id. The CI returned
to police where he turned over what police believed was “a sum of crack cocaine.”
Id. The CI provided police seven zip-lock bags containing an off-white substance.
Subsequent laboratory testing confirmed the substance was, in fact, crack cocaine,
which weighed two grams. N.T. at 23; Commonwealth’s Exs. 2, 5.
Further, after the controlled purchase, police maintained surveillance
of Cash as he travelled throughout Franklin County. N.T. at 17. After several
hours of surveillance, police learned Cash had an outstanding parole warrant. Id.
Police stopped Cash’s vehicle, placed him in custody until the outstanding warrant
was confirmed and then arrested him. N.T. at 17-18, 32. A search incident to the
arrest uncovered sums of money from Cash’s front pockets. N.T. at 32-33. Cash’s
left pocket contained thirteen one-dollar bills, and his right pocket contained a total
of $1,317, comprised of two fifty-dollar bills, fifty-two twenty-dollar bills, thirteen
ten-dollar bills, eight five-dollar bills, and seven one-dollar bills. N.T. at 18-19;
Commonwealth’s Ex. 2. Included in the $1,317 found in Cash’s right pocket was
the $300 in prerecorded buy money the CI gave to Cash. N.T. at 18. Cash
ultimately pled guilty to delivery of cocaine and received a sentence of 24 to 60
months in prison. C.R., Item No. 7.
24
Based on our Supreme Court’s decision in Esquilin, we discern no
error in the trial court’s determination that the Commonwealth proved the requisite
nexus between the $1,030 cash seized and the unlawful drug sales. Specifically,
similar to Esquilin, police observed Cash conduct a controlled drug sale of seven
zip-lock bags of crack cocaine, weighing two grams. Further, although a
subsequent search yielded no additional drugs, it did uncover $1,330 in cash in
various denominations, which included the commingled $300 in prerecorded buy
money Cash received from the CI. As in Esquilin, the fact that Cash was observed
in the actual act of dealing drugs supports the trial court’s reasonable conclusion
that it was more likely than not that the entirety of the money Cash held was
“furnished or intended to be furnished ... in exchange for a controlled substance …
[or represents the] proceeds traceable to such an exchange,” or was “used or
intended to be used to facilitate [a] violation of [the Drug Act].” 42 Pa. C.S.
§6801(a)(6)(i)(A), (B).
In addition, as in Esquilin, the trial court did not err in invoking the
“close proximity” rebuttable presumption based on the facts presented. Indeed, the
controlled substances Cash possessed and distributed were in sufficiently close
proximity to the money he retained so as to trigger the Forfeiture Act’s rebuttable
presumption that the money represented “proceeds derived from the selling of a
controlled substance in violation of the [Drug Act].” 42 Pa. C.S. § 6801(6)(ii).
While Cash asserts several hours lapsed between the controlled drug sale and the
subsequent search, he makes no assertion that he lawfully acquired the money
during that time frame. See Appellant’s Br. at 5. In fact, before the trial court he
asserted he withdrew $1,300 from his bank account two weeks prior to the seizure
25
of the money. See Tr. Ct., Slip Op. at 8. In short, based on the facts presented, the
trial court could reasonably infer that Cash had the money on him at the time he
sold the crack cocaine to the CI. See Esquilin.4
In his brief to this Court, Cash offers no direct response to the trial
court’s determination that he failed to rebut the presumption that the money
represented proceeds derived from the selling of a controlled substance in violation
of the Drug Act. In any event, as in Esquilin, no error is apparent in the trial
court’s rejection of Cash’s claim that he withdrew the money two weeks prior to
the arrest and seizure in order to purchase a vehicle. To that end, the trial court
explained:
Here, [in his written submission,] [Cash] … asserts
that he withdr[ew] $1,300 from his bank with intention of
buying a car outside of Chambersburg. In support,
[Cash] attached [to his filing], as his Exhibit C, a bank
4
Cash also relies on Commonwealth v. Fidelity Bank Accounts, 631 A.2d 710 (Pa.
Cmwlth. 1993), for the proposition that, where the Commonwealth seizes money or property and
claims it is forfeitable because it constitutes proceeds traceable to drug sales under Section
6801(a)(6)(i)(A) of the Forfeiture Act, “as a matter of law, the Commonwealth cannot prove that
property acquired prior to the time that it proves that illegal activity occurred is forfeitable ….”
Id. at 719 (emphasis in original).
However, the language Cash quotes from that case related to life insurance policies and a
bank account that the forfeiture claimants purchased or opened prior to the date the
Commonwealth was able to show the illegal drug trafficking operation at issue in that case
existed. This Court held premiums paid on the life insurance policies and funds deposited into
the bank account prior to the time the Commonwealth could prove the illegal drug trafficking
operation existed, had to be returned to the forfeiture claimants. Ultimately, we remanded for a
determination of whether the Commonwealth proved the existence of any payments made after
the illegal drug trafficking operation began.
Here, unlike in Fidelity Bank Accounts, we are not confronted with the seizure of
property such as life insurance policies or bank accounts that were acquired prior to when the
Commonwealth could prove illegal drug activity occurred. Rather, in this case the
Commonwealth proved the cash seized was in close proximity to the unlawful drug activity.
Thus, Cash’s reliance on Fidelity Bank Accounts fails.
26
statement showing a June 12, 2012 withdraw[al] of
$1,300. …
[Cash] has not adequately rebutted the
Commonwealth’s presumption that the forfeiture was
appropriate. [Cash’s] assertion that the forfeited money
was withdrawn on June 12, 2012 in order to purchase a
car is problematic for two reasons. First, while [Cash]
has shown that he did, in fact, withdraw $1,300 in cash
from his bank account, this transaction occurred
approximately 2 weeks before his June 26, 2012
encounter with police. [Cash] has not explained to this
Court’s satisfaction why he would withdraw a large
amount of cash with the intent to purchase a car but then
keep the large sum of money on his person while
committing an illegal act after failing to purchase a car.
Second, [Cash’s] claims surrounding the $1,300 are even
more questionable in light of the Commonwealth’s
evidence surrounding the $300 prerecorded money that
the CI used to purchase crack cocaine. See
[Commonwealth v. $16,208.38 U.S. Currency Seized
from Holt, 635 A.2d 233 (Pa. Cmwlth. 1993)] (finding
that trial court is not required to find property claimant’s
explanations for large sums of cash are believable). …
Tr. Ct., Slip Op. at 8-9. Thus, even if properly preserved, we discern no error in
the trial court’s rejection of Cash’s claim.
Finally, as to the three cellular phones seized, we also agree with the
trial court’s determination that the Commonwealth proved the requisite nexus
between those items and the unlawful drug activity. To that end, at the hearing, the
Commonwealth presented evidence that, following Cash’s arrest, a search of the
vehicle yielded three cellular phones in the center console of the rented vehicle
Cash was driving when he made the sale of crack cocaine to the CI. N.T. at 20, 33.
Further, the Commonwealth presented evidence that the controlled drug buy was
27
arranged by way of a phone call from the CI to one of the cellular phones in Cash’s
possession. N.T. at 28. Moreover, PSP Trooper Fink offered testimony that drug
dealers commonly use “burner phones,” which are “no-contract phones [that are
used] in order to hide their identity.” N.T. at 29-30. Here, Cash admitted he had
no contracts on any of the three cellular phones seized. N.T. at 10.
Of further note, Cash was initially charged with criminal use of a
communication facility, although that charge was ultimately dismissed as a result
of his guilty plea to possession with intent to deliver cocaine. See C.R., Item No.
7. Based on all of these circumstances, the trial court could reasonably conclude
the Commonwealth met its burden of proving a nexus existed between the three
cellular phones and the unlawful drug activity.
Moreover, in rejecting Cash’s assertion that the three cellular phones
did not have a nexus to illegal drug activity, the trial court explained:
[Cash] argues that the cell phones do not have a nexus to
illegal activity but does not state why he had three active
cell phones. Even in today’s technology-driven age, it is
unusual for a single person to have three cell phones on
their person, let alone in a rental car that a person is
driving in by themselves. [Cash] has not given this court
a legitimate reason why he would have three cell phones
in his rental vehicle. Even assuming arguendo that
[Cash’s] cell phones were not purchased with proceeds
from selling drugs and were purchased with his student
loans, given his employment situation and criminal
actions, [Cash’s] possession of three cell phones is very
suspicious. Although individuals may have a work cell
phone and a personal cell phone, [Cash] didn’t offer a
reasonable explanation along those lines. As a result, this
Court finds that the Commonwealth has, by a
preponderance of the evidence, shown a nexus between
28
the unlawful criminal activity and all three cellular
phones found in the rental car and the forfeiture of said
cell phones was proper.
Tr. Ct., Slip Op. at 10-11. We discern no error in the trial court’s rejection of
Cash’s attempt to rebut the Commonwealth’s proof that a nexus existed between
the three cellular phones and the unlawful drug activity. Indeed, the trial court was
not required to accept Cash’s explanation as credible. Esquilin.
For all the foregoing reasons, we affirm the trial court in all respects
except the denial of Cash’s late-filed “In the Matter of Property” motion. That
latter order is vacated.
ROBERT SIMPSON, Judge
29
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 915 C.D. 2015
:
Theodore Cash, :
Appellant :
ORDER
AND NOW, this 15th day of October, 2015, the order of the Court of
Common Pleas of the 39th Judicial District (Franklin County Branch) is
AFFIRMED in all respects except as to the denial of Appellant’s late-filed “In the
Matter of Property” motion. The order denying that motion is VACATED.
ROBERT SIMPSON, Judge | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3066622/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 88 C.D. 2014
: Submitted: June 26, 2015
Ralph Jannini, :
Appellant :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY JUDGE BROBSON FILED: October 15, 2015
Appellant Ralph Jannini (Jannini), pro se, appeals from an order of
the Court of Common Pleas of Greene County (trial court). The trial court found
that the Commonwealth proved that Jannini violated an ordinance of Greensboro
Borough (Borough) by covering a sidewalk on his property with rocks, stones, and
dirt, and planting a flower garden upon it. The trial court determined that this
action constituted the failure to maintain a public sidewalk and assessed a fine of
$100.00 plus costs against Jannini. We reverse the trial court’s order.
Jannini owns property located on the east side of Second Street in the
Borough. The property consists of a lot upon which is sited two buildings—a
former church and the former church’s parsonage, the latter of which appears to be
a two or three-story house located on the northeast corner of Second Street and
Clear Street. On May 5, 2014, Arnold Bowser, who was the Mayor of the Borough
at that time and until the time of his death, issued a “code violation” citation to
Jannini, which identified the alleged violation as “failure to comply with ordinance
Article 5, Section 1 of the Boro[ugh] Ordinance from 1885.” (Reproduced Record
(R.R.) at 151a.) According to the citation, Article 5, Section 1 prohibits property
owners from permitting accumulations of filth, manure, dirt, ashes, coal, boxes,
barrels, stone, brush, or lumber on streets, sidewalks, or alleys in the Borough. A
magisterial district justice found Jannini guilty of the violation, and Jannini filed a
statutory appeal with the trial court.
The trial court conducted a de novo hearing on December 9, 2013.
The Commonwealth provided the testimony of Jane A. Descutner, who holds the
position of secretary/treasurer for the Borough. Ms. Descutner testified regarding
her search of the Borough’s record books for pertinent ordinances. Ms. Descutner
testified that Commonwealth Exhibit number 1 consists of an ordinance adopted in
1924. Part of Exhibit 1 is the hand-copied (by Ms. Descutner) ordinance and the
other part of Exhibit 1 appears to be the notice by publication of the Borough’s
adoption of the ordinance. Section 2 of the 1924 ordinance provides that “[t]he
sidewalks of all streets shall be six (6) feet wide including grass plots and curb
widths and no sidewalk shall be less than four (4) feet wide.” (R.R. at 91a.)
Commonwealth Exhibit number 2, about which Ms. Descutner also
testified, is an ordinance the Borough adopted in 1879, which also relates to
grading, curbs, and sidewalks, and prohibits the accumulation of filth, manure,
dust, ashes, coal, shavings boxes, barrels, stone, brick, lumber or other obstructions
on any street, alley, or sidewalk. (Article V, Section 1 of the ordinance of
May 6, 1879; R.R. at 86a.)
The Commonwealth also offered the testimony of Darlene Garrett, the
Borough manager. Ms. Garrett testified regarding several photographs, which the
Commonwealth entered as exhibits, depicting the sidewalk area before Jannini
began to place material on the sidewalk, during the process of Jannini placing
2
material on the sidewalk, and after he completed the process and plants began to
grow and mature upon the area where the sidewalk had been. (Commonwealth
(Cmwlth.) Ex. nos. 3-9.) Although Ms. Garrett could not provide a specific date
upon which the photograph depicting Jannini’s initial placements of material on
the sidewalk was taken, she testified that she first observed Jannini engaging in
that conduct on the day when the Borough began a sidewalk project on Clear
Street, possibly in 2012. (R.R. at 15a.)
Ms. Garrett testified regarding photographs of the front of the former
church and Jannini’s yard. (Cmwlth. Ex. nos. 3, 5.) Together, these photographs
depict a portion of a sidewalk near steps leading to the former parsonage, material
that looks like hay over an area that appears to be a continuation of the sidewalk
(Cmwlth. Ex. no. 5), and an area of sidewalk in front of the former church and
parsonage. (Cmwlth. Ex. 3.) Ms. Garrett also testified that Commonwealth
Exhibit number 7 illustrates the condition of the sidewalk when Jannini first began
to move “stuff on to the sidewalk.” (R.R. at 16a.) Ms. Garrett, in response to a
question from counsel, indicated that Commonwealth Exhibit number 5 illustrates
the appearance of the sidewalk when Jannini first “planted” the sidewalk.
Ms. Garrett testified that Commonwealth Exhibit number 6, which consists of two
photographs taken in September 2013, shows the subject sidewalk as appearing to
be completely covered and obscured by maturing plant growth. (R.R. at 15a.)
As testified to by Mary Shine, the president of the Greensboro
Borough Counsel, Commonwealth Exhibit number 9 in the certified record depicts
a view of the front of the yard of the former parsonage, taken sometime in the
1980s from the perspective of the area of the street in front of the parsonage,
depicting the now-covered sidewalk in the condition at the time the sidewalk was
3
clear. (R.R. at 27a-28a.) In the photograph, it appears that the area that is now
covered by plants had contained a stone retaining wall abutting a sidewalk.
Jannini submitted his own testimony and argument in response to the
evidence the Commonwealth introduced. While Jannini did provide some factual
information, much of his comments during the hearing constituted legal argument.
Jannini offered his view that the Mayor of the Borough lacked the power to issue a
citation for an alleged violation of an ordinance. Jannini also asserted that
the 1924 ordinance, which set forth grading standards for Second Street and
sidewalk width, does not specifically provide for and did not order the construction
of public sidewalks on Second Street. Jannini contended that the sidewalk was
actually a private walkway that was originally used “for off street parking and for
getting in and out of locations that do not have driveways.” (R.R. at 51a.) Jannini
asserted that the sidewalk “was a private walkway that is unique to [that] side of
the street,” and that the public sidewalk was located on the opposite side of the
street. (R.R. at 51a.) Jannini indicated that he investigated all of the deeds relating
to the property that were recorded beginning in 1920, and none of the deeds
identified a sidewalk on the property. (R.R. at 52a.) Jannini testified that he did
not locate any records indicating that any owner of the property had dedicated any
portion of it for the purpose of a sidewalk or that the Borough had obtained an
easement. (R.R. at 51a.) Jannini testified that he installed his own driveway and
“had no further desire or use of having off-street parking, and chose to convert that
part of my walkway to a flower bed.” (R.R. at 51a.) Under these circumstances,
he believes that he cannot be cited for converting his sidewalk to a flower bed.
Jannini also contended that some type of public dedication is required
in order to transform a walkway into a public sidewalk. (R.R. at 68a.) Jannini
4
contended that the property is the only property on the east side of the street that
has a sidewalk. Jannini suggested that the previous owner had installed the
sidewalk as a private improvement of the property. (R.R. at 69a-70a.) Jannini also
referred to Defense Exhibits F and F-1, which set forth “assets and opportunities”
and reflect existing and proposed improvements to the area (referred to during the
hearing as the Greensboro Elm Street Plan). (R.R. at 127a-28a.) Those exhibits
appear to show sidewalks only on the side of Second Street opposite to the
property.
At the end of the hearing, the trial court opined that
the 1924 ordinance provided the standards for streets and sidewalks, and that
although the law indicates that the owner of a lot of land owns property up to the
edge of the street, a sidewalk constitutes an easement over which the public has a
right to walk. The trial court rejected Jannini’s factual and legal arguments. The
trial court concluded that the Mayor had the authority to issue the citation and that
Jannini had violated “Section 1, Article 5 of the ordinance of—it’s either 1885 or
1879, by failing to maintain the public sidewalk in front of his property.” (Trial
Court op. at 3.)
Jannini appealed the trial court’s order, and upon the direction of the
trial court, filed a statement of errors complained of on appeal. In its Pa. R.A.P.
1925(a) opinion, the trial court opined:
Although the [B]orough could not point to an ordinance
specifically establishing a sidewalk on the western side
of Second Street between Clear and Walnut Streets (See
Ex. 11), it did ordain, in 1924, that all streets in the
[B]orough would measure 28 feet [between] the curbs,
with six additional feet for sidewalks and that such
sidewalks would be at least four feet wide. The
photographs introduced as exhibits clearly show a
concrete sidewalk approximately four feet wide in front
5
of the former church and parsonage. The 1980’s
photograph of the church shows a sidewalk in excellent
condition. The [B]orough has the right to open sidewalks
and once open, the duty to keep them passable. 53 P.S.
§ 46801 et seq.[1]
(Trial court op. at 2-3.) Thus, the trial court reasoned that because
the 1924 ordinance declared that sidewalks should be at least four feet wide and
the photograph of the condition of the sidewalk in the 1980s suggests that the
sidewalk complied with that requirement, the original sidewalk constituted a public
sidewalk that the Borough had, at some point in the past, “opened” under the
provisions of the Borough Code, 8 Pa. C.S. §§ 101-3501. The trial court also
rejected Jannini’s claim that the Mayor lacked the power to issue a citation.
In this appeal,2 Jannini raises the following primary issues:
(1) whether a reference in the citation to an erroneous year of the enactment of an
ordinance renders the citation invalid; (2) whether the Mayor had the power to
issue the citation; and (3) whether the Commonwealth proved beyond a reasonable
doubt that Jannini violated a Borough ordinance.
In Spontarelli, we noted that “[i]n summary offense cases, the
Commonwealth is required to establish” guilt beyond a reasonable doubt.
Spontarelli, 791 A.2d at 1258. This court views “all of the evidence admitted at
1
This citation refers to the formerly unconsolidated Chapter 91, Article XVIII of
Borough Code, Act of February 1, 1966, P.L. (1965) 1656, 53 P.S. §§ 46801-46806, relating to
sidewalks, which was repealed by the Act of April 18, 2014, P.L. 432. The former Chapter 91 is
now codified in identical, if not substantially identical, form in Chapter 18 of the recently
reenacted Borough Code, 8 Pa. C.S. §§ 1800-1806.
2
In reviewing a summary conviction matter, where the trial court has taken additional
evidence in de novo review, our standard of review is limited to considering whether the trial
court abused its discretion or committed an error of law. Commonwealth v. Spontarelli,
791 A.2d 1254, 1255 n.2 (Pa. Cmwlth. 2002).
6
trial, together with all reasonable inferences therefrom, in the light most favorable
to the Commonwealth.” Id. “The test of sufficiency of evidence is whether the
trial court, as trier of fact, could have found that each element of the offenses
charged was supported by evidence and inferences sufficient in law to prove guilt
beyond a reasonable doubt.” Id.
The content of a citation may determine whether the Commonwealth
has satisfied the necessary procedural requirements in seeking to obtain a
conviction for an alleged ordinance violation. Pa. R.Crim. P. 403 provides:
Contents of Citation
(A) Every citation shall contain:
...
(6) a citation of the specific section and
subsection of the statute or ordinance allegedly
violated, together with a summary of the facts
sufficient to advise the defendant of the nature of
the offense charged.
This Court has held that “it is well established that the essential elements of a
summary offense must be set forth in the citation so that the defendant has fair
notice of the nature of the unlawful act for which he is charged.” Commonwealth
v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997), affirmed, 723 A.2d 1021
(Pa. 1999). Under Pa. R.Crim. P. 109, however, courts should not dismiss a case
“because of a defect in the form or content of a . . . citation . . . unless the
defendant raises the defect before the conclusion of the trial in a summary case . . .
and the defect is prejudicial to the rights of the defendant.”3 In Borriello, we
concluded that “[s]uch prejudice will not be found where the content of the
3
Pa. R.Crim. P. 109 is derived in part from former Pa. R.Crim. P. 90.
7
citation, taken as a whole, prevented surprise as to the nature of summary offenses
of which [the] defendant was found guilty at trial, . . . or the omission does not
involve a basic element of the offense charged.” Borriello, 696 A.2d at 1217
(altered language added).
In this matter, it appears that Jannini is correct in asserting that the
citation erroneously refers to an ordinance enacted in 1885. Rather, as revealed in
Commonwealth Exhibit number 2, the ordinance the Borough adopted in 1879 is
the one that contains the language included in the citation. Article V, Section 1 of
that ordinance prohibits the accumulation of material such as filth and debris on
sidewalks in the Borough. The citation clearly indicates that the Commonwealth
was asserting that Jannini had violated Article V, Section 1 of an ordinance that
prohibits such conduct. In other words, the citation arose from an alleged violation
of Article V, Section 1 of the 1879 ordinance. The sole question then is whether
the misstatement regarding the year may be excused under Pa. R.Crim. P. 109. In
accordance with our holding in Borriello, we conclude that the erroneous reference
to the year 1885 did not prejudice Jannini, because the content of the citation
apprised Jannini of the alleged violation and the omission of the correct year did
“not involve a basic element of the offense charged.” Borriello, 696 A.2d at 1217.
Jannini also contends that The Borough Code does not vest borough
mayors with the authority to issue summary citations for alleged ordinance
violations. Section 10A07(1) of the Borough Code, 8 Pa. C.S. § 10A07,4 provides:
4
This provision codifies an identical provision of the formerly unconsolidated Borough
Code—Section 1029 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, 53 P.S.
§ 46029.
8
The mayor shall have the following duties: (1) To
preserve order in the borough, to enforce the ordinances
and regulations, . . . and to perform any other duties as
shall be vested in the mayor’s office by law or ordinance.
Pa. R.Crim. P. 402 provides that “[l]aw enforcement officers shall ordinarily
institute summary proceedings by citation.” As the Commonwealth notes, Pa.
R.Crim. P. 103 defines a “law enforcement officer” as “any person who is by law
given the power to enforce the law when acting within the scope of that person’s
employment.” We believe these provisions settle the question. The rules of
criminal procedure provide that a law enforcement officer shall institute summary
proceedings by issuing a citation and the rules also define a law enforcement
officer as someone who by law is given the powers to enforce the law. Because
The Borough Code charges mayors with the duty to enforce ordinances, a type of
law, the Mayor had the authority in this matter to issue a citation to Jannini for an
alleged violation of a Borough ordinance.
The final key issue is whether the Commonwealth satisfied its burden
of proof. Jannini contends that the sidewalk that was in front of the former
parsonage was not a public sidewalk, but rather it was a private walkway that the
former church paid for in order to benefit its congregation. Jannini asserts that
evidence in the record supports his assertion that although a sidewalk runs fully
along the opposite side of Second Street, the fact that the sidewalk on his side of
Second Street only runs along the front of the property supports his claim that the
sidewalk was intended only for the benefit of former church congregants and,
therefore, was not intended to be for the walking public. Jannini asserts that such
evidence supports his claim that the sidewalk that was in front of his property has
always been a private, rather than public, sidewalk, and, therefore, he had the right
as a property owner to do with the sidewalk as he wished.
9
Part I, Chapter 18 of the Borough Code, 8 Pa. C.S. §§ 1800-1806, sets
forth the provisions relating to sidewalks. Section 1801(a) of the Borough Code,
8 Pa. C.S. § 1801(a), provides:
(1) Any borough may, by ordinance, lay out and establish
sidewalks, curbs, gutters and surface water drains along
any street . . . .
(2) The borough may also require owners of property
abutting on any street . . . to grade, construct, drain, pave
and repave the sidewalk, curb or gutter and keep them in
repair and in safe and usable condition along the property
at the grades and under the regulations and specifications
as council may prescribe.
(Emphasis added.) This provision authorizes a borough to require, via ordinance, a
property owner to construct a sidewalk. This provision does not impose upon a
borough a duty to construct or to order a property owner to construct a sidewalk.
Koerth v. Borough of Turtle Creek, 49 A.2d 398, 400 (Pa. 1946). It does, however,
authorize a borough to require that a sidewalk be maintained in a reasonably safe
condition. Id at 399-400. We note that pursuant to the Borough Code, a “borough
may pay all or any part of the cost and expenses of grading and curbing any
sidewalk.” Section 1804 of the Borough Code, 8 Pa. C.S. § 1804. Furthermore, if
a property owner fails to comply with the requirements of Sections 1801 or 1804
of the Borough Code, a borough “may, after notice, cause the grading, paving,
repairing, [or] curbing . . . to be done at the cost of the owner,” and it “may collect
the cost of the work and an additional 10% of the cost, together with all charges
and expenses, from the owner.” Section 1805(a) of the Borough Code, 8 Pa. C.S. §
1805(a). A borough may even make emergency repairs to a sidewalk. Section
1806 of the Borough Code, 8 Pa. C.S. § 1806.
10
Nothing in Chapter 18, however, may be interpreted as prohibiting a
property owner from constructing a sidewalk when the borough did not, through an
ordinance, direct that it be constructed. Similarly, nothing in the ordinance
prohibits a property owner from removing a sidewalk that it was not required to
construct or otherwise have. Thus, at the heart of this matter is whether the
Borough required, through an ordinance or otherwise, Jannini’s property to have a
sidewalk. If not, then the Borough could not cite Jannini for removing his
sidewalk by converting it into a flower bed. If, however, Jannini was required by
the Borough to have a sidewalk on his property (or if he opted to continue to have
a sidewalk by choice), then the Borough would have the authority to cite him for
failing to maintain the sidewalk in conformity with the Borough’s ordinance.
The trial court inferred that, based on the sidewalk’s dimensions, the
sidewalk (which dated at least back to the 1980s before Jannini purchased the
property), was installed in compliance with the provisions of the 1924 ordinance
applicable to sidewalks. This finding, however, does not establish that the
Borough required, via ordinance, Jannini’s property to have a sidewalk. In
addition, no evidence was offered to show that the sidewalk had been dedicated to
and accepted by the Borough in such a manner that it became part of the Borough’s
comprehensive plan for sidewalks. To the contrary, the only exhibits that were
entered into evidence that depicted sidewalks of the Borough did not appear to
even recognize that a sidewalk existed on Jannini’s property.
Under these circumstances, there is no evidence to support a finding
that Jannini was required by the Borough, via ordinance or otherwise, to have a
sidewalk. Thus, because Jannini is not required to have a sidewalk, the Borough
cannot prohibit him from removing his sidewalk. Here, Jannini essentially
11
removed the sidewalk from his property by converting it into a portion of his yard
covered by a flower bed.
We note that the ordinance in question prohibits a property owner
from allowing accumulations of dirt and other debris on sidewalks and that Jannini,
due to the method he used to remove his sidewalk (i.e., covering over his sidewalk
with dirt as opposed to digging up the sidewalk), purposefully accumulated dirt
and other material on his sidewalk. It is apparent to the Court, however, that the
ordinance in question was adopted to ensure that sidewalks in the Borough were
free of debris and other material so that they would be safe for use by persons,
including the public; the ordinance was not adopted to prohibit a specific manner
of removing a sidewalk. Requiring a property owner to keep his sidewalk in a safe
condition is different from requiring a property owner to continue to have forever
and ever a sidewalk installed by choice. For that reason, we do not believe that the
method Jannini used to remove his sidewalk constitutes a violation of the
ordinance. For these reasons, the trial court erred in concluding that Jannini
violated the Borough’s ordinance when he converted his sidewalk to a flower bed.5
5
In his dissenting opinion, President Judge Pellegrini writes that “[t]here is no question
that the sidewalk is in a dedicated public right-of-way.” Commonwealth of Pa. v. Jannini, ___
A.3d ___ (Pa. Cmwlth., No. 88 C.D. 2014, filed October 15, 2015) (Jannini), dissenting slip op.
at 1. While the basis for such a statement is not explained, we surmise that it is based upon the
Borough’s 1924 Ordinance, which provides, in part, that
all streets of this Borough shall be improved in the centers thereof a width of
twenty-eight (28) feet between the curb lines and shall have on each side thereof
six (6) feet including the curb width. The sidewalks of all streets shall be six (6)
feet wide including the grass plots and curb widths and no sidewalk shall be less
than four (4) feet wide.
(Footnote continued on next page…)
12
Accordingly, we reverse the order of the trial court.6
P. KEVIN BROBSON, Judge
(continued…)
(R.R. at 91a (emphasis added).) The parties, however, do not argue that a public-right-of-way
exists. Neither the deed for the property nor maps of the Borough indicate that a public
right-of-way exists on the property. (R.R. at 109a-119a; 127a-128a). In fact, the term
“right-of-way” is not found within the briefs of the parties or the trial court’s order or Pa. R.A.P.
1925(a) opinion. Moreover, even if the six feet of Jannini’s property abutting the street
constituted a public right-of-way, we would still conclude that there is no evidence to support a
finding that Jannini was required to have a sidewalk, as many properties within the Borough do
not have sidewalks. The dissent concludes otherwise, however, based upon its misapprehension
of the trial court opinion as having held that “once a sidewalk is laid out in the public-right-of
way, it becomes part of the public right-of-way and the property owner can make no changes
without permission from the municipality.” Jannini, ___ A.3d at ___, dissenting slip op. at 3.
The trial court made absolutely no such pronouncement of the law, and we note that no legal
authority is cited for that proposition in the dissenting opinion. To the contrary, the trial court
merely observed that a sidewalk constructed by a prior owner of the property appeared to have
complied with the Borough’s sidewalk requirements and that the “[B]orough has a right to open
sidewalks and once open, the duty to keep them passable.” (Trial Court op. at 3.) The trial court
never analyzed the matter in terms of whether a public right-of-way existed or whether Jannini
was required to have a sidewalk on his property. The trial court never found that the Borough
opened the sidewalk in question. Thus, the dissenting opinion’s position that the Court should
affirm this matter on the basis of the trial court opinion is perplexing.
6
Jannini also contends that his presentation of his defense was hampered by the fact that
he could not call as a witness the former Mayor who issued the citation, because he passed away
before the hearing. Because the other Commonwealth witnesses appear to have sufficient
personal knowledge regarding the facts underlying the Mayor’s issuance of the citation, and
because, as the trial court noted, the Commonwealth was able to offer sufficient evidence
notwithstanding the inability to call the Mayor as a witness, we conclude that Jannini has not
established any harm from his inability to call the former Mayor as a witness. Additionally,
Jannini has not presented any legal argument to support his claim that the Mayor’s testimony
was necessary for him to defend against the citation.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 88 C.D. 2014
:
Ralph Jannini, :
Appellant :
ORDER
AND NOW, this 15th day of October, 2015, the order of the Court of
Common Pleas of Greene County is REVERSED.
P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 88 C.D. 2014
: Submitted: June 26, 2015
Ralph Jannini, :
Appellant :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: October 15, 2015
Greensboro (Borough) is a borough in Greene County on the west bank
of the Monongahela River with a population under the 2010 census of 254 people.
Moving from Pittsburgh, Ralph Jannini purchased property located on the east side of
Second Street in the Borough which was a former church and church parsonage. At
the time he purchased the property, there was a “sidewalk” in front of the property.
There is no question that the sidewalk is in a dedicated public right-of-way. On the
front part of the “sidewalk” there is a fire hydrant.
After he purchased the property, he planted vegetation on both sides of
the “sidewalk” so that it was unpassable. As a result, the Borough charged him with
permitting accumulations of filth, manure, dirt, ashes, coal, boxes, barrels, stone,
brush or lumber on streets, sidewalks or alleys in the Borough which is a violation of
Article 5, Section 1 of the Borough Ordinance from 1885. This Ordinance is
handwritten. After Jannini was found guilty before the magistrate, he appealed to the
trial court which, after a lengthy hearing, imposed a $100 fine.
The majority reverses because it finds that the Borough did not establish
that it had an ordinance that required Jannini to construct a sidewalk under Section
1801(a) of the Borough Code, 8 Pa. C.S. §1801(a), and that he was under no burden
to maintain or keep it unobstructed and reversed the trial court.
I am reluctant to even dissent because the simple solution to all of this is
for the Borough to order Jannini to build the sidewalk to standard to allow pedestrian
passage, even if that solution was to cost him potentially thousands of dollars. I also
am reluctant to dissent because, in general, ordinance citations for serious violations
do not solve the problem because of their purported criminal nature,1 and cause
1
The majority applies the “beyond a reasonable doubt” standard applicable to the criminal
cases. How to characterize prosecutions for violations of municipal ordinances has been equally
troublesome. Generally, most municipalities were only authorized to impose fines and, if the fines
were not paid, then an imprisonment could be imposed. At common law, an action brought by the
municipality for the violation of a municipal ordinance was considered a civil suit for penalty and
the normal civil burdens applied. Commonwealth v. Carter, 377 A.2d 831, 832 (Pa. Cmwlth. 1977).
With the promulgation of the then-new Pennsylvania Rules of Criminal Procedure, through
definitional changes, what we previously considered civil suits for penalty became penal in nature.
Those Rules define “criminal proceedings” as including “all actions for the enforcement of the
Penal Laws.” Pa. R.Crim.P. 3(g). The penal laws include “any ordinances which may provide for
imprisonment upon conviction or upon failure to pay a fine or penalty.” Pa. R.Crim.P. 3(1). An
ordinance is a “legislative enactment of a political subdivision.” Pa. R.Crim.P. 3(g). These
definitions (which were in effect in 1976) remove any doubt as to the nature of the instant
proceedings; they are criminal proceedings. This was so even though Pa. R.Crim.P. 456(C)
provides that imprisonment may only be ordered if the defendant is able to pay the fine and refuses,
making the “in default thereof” akin to civil contempt.
(Footnote continued on next page…)
DRP - 2
charging and proof hurdles to overcome, especially when the fine imposed is only
$100, which is disproportionate to the effort extended by the Borough in attempting
to abate the violation. In these situations, it would be better for the municipality to
file equity actions to enjoin the violation and seek fines under the normal civil
burden. If these methods were employed, at least the “problem” would be solved.
Nonetheless, I disagree with the majority because, as the trial court held,
once a sidewalk is laid out in the public right-of-way, it becomes part of the public
right-of-way and the property owner can make no changes without permission from
the municipality. Accordingly, I would affirm on the well-reasoned opinion of the
trial court.2
___________________________________
DAN PELLEGRINI, President Judge
(continued…)
However, a municipal ordinance where imprisonment is not a remedy for a conviction or
failure to pay a fine is a civil case and the criminal burdens do not apply. Town of McCandless v.
Bellisario, 709 A.2d 379, 381 (Pa. 1998). From a review of the record, I am unable to determine
whether the ordinance at issue here provides for imprisonment in default of payment of the fine but
for the purposes here will assume that it does.
2
The public’s right in the use of the sidewalk has been characterized as an “easement of
passage” but it also includes “the powers incident to such a right.” Duquesne Light Co. v. Duff, 97
A. 82 (Pa. 1916). It need not be improved to be a considered a sidewalk. Callahan v. A. Wishart &
Sons Co., 365 Pa. 498, 501, 76 A.2d 386, 388 (1950).
DRP - 3 | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3066623/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 26, 2015 Session
DUFF BRUMLEY v. THE CITY OF CLEVELAND
Appeal from the Circuit Court for Bradley County
No. V11616 Hon. W. Neil Thomas, Judge1
No. E2014-02213-COA-R3-CV-FILED-OCTOBER 15, 2015
A former police officer with the City of Cleveland brought this retaliatory discharge
action, alleging that he was fired for reporting his superior for the crime of official
misconduct and official oppression. During the pendency of the retaliatory discharge
action, the officer’s termination was upheld in the administrative appeal process. A panel
of this court affirmed the administrative decision. Thereafter, the City of Cleveland
moved for summary judgment in this action, arguing, in pertinent part, that the claim was
barred by res judicata and collateral estoppel because the issues raised were addressed in
the administrative appeal of the termination. The trial court agreed and dismissed the
action. We reverse the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY and THOMAS R. FRIERSON, II, JJ., joined.
W. Gerald Tidwell, Jr., W. Adam Izell, and Todd A. Davis, Chattanooga, Tennessee, for
the appellant, Gregory Herbert Helton.
Emily C. Taylor and Benjamin K. Lauderback, Knoxville, Tennessee, for the appellee,
the City of Cleveland.
1
Sitting by interchange.
OPINION
I. BACKGROUND
Duff Brumley (“Plaintiff”) was employed by the City of Cleveland (“the City”) as
a police officer until his termination on August 24, 2010. In a prior appeal, this court
recounted the circumstances surrounding the termination as follows:
In 2010, while working as a detective in the narcotics unit, [Plaintiff] was
approached by two members of the 10th Judicial District Drug Task Force
(“DTF”), who informed him of their suspicions that the DTF Director,
Mike Hall, might be abusing prescription medications. Later, according to
[Plaintiff], a Criminal Court judge told him that Director Hall appeared to
be under the influence while obtaining the judge’s signature in chambers.
[Plaintiff] decided to investigate the matter and obtained personal
information, including the social security number and date of birth, for
Director Hall and two other DTF agents through the Criminal Justice Portal
database.
[Plaintiff] gave Director Hall’s personal information to pharmacist Mike
Birdwell, his friend and neighbor, and asked Mr. Birdwell to check the
Prescription Monitoring Program (“PMP”) database to determine if
Director Hall’s prescription drug purchases were suspicious. Mr. Birdwell
passed the information to two other pharmacists because he did not have
access to a computer to check the PMP database. The pharmacists checked
Director Hall’s prescription drug purchase history and determined that it
did not raise any suspicion of illegal activity. Mr. Birdwell supplied
[Plaintiff] this information and according to [Plaintiff], he then ended his
investigation of Director Hall.
On June 22, 2010, District Attorney General R. Steven Bebb sent Cleveland
Police Chief Wes Snyder a letter stating, inter alia, the following:
Please be advised that we have become aware of an incident
involving [Plaintiff]. It appears that [Plaintiff] illegally
instigated a search of the Patient Monitoring Database for
information on Mike Hall, the Director of the 10th Judicial
Drug Task Force. [Plaintiff’s] actions have been confirmed
through an investigation by the Tennessee Bureau of
Investigation.
-2-
....
Please accept this letter as notice that from this date forward
the District Attorney General’s Office will not accept any
case files for prosecution from [Plaintiff].... Please also
accept this letter as a request that an internal investigation be
commenced by the Cleveland Police Department into these
matters as soon as possible.
On June 23, 2010, Chief Snyder assigned Detective Brian Pritchard to
conduct an Internal Affairs (“IA”) investigation of [Plaintiff]. Following
the IA investigation, Det. Pritchard concluded that [Plaintiff’s] actions
violated Cleveland Police Department policies and state law. On August
17, 2010, Chief Snyder notified [Plaintiff] that his employment was
terminated effective August 24, 2010. The City of Cleveland provided the
following grounds for its termination decision: (1) [Plaintiff’s] “failure to
notify CID Lieutenant of [his] investigation of Mike Hall and failure to
generate a departmental case number”; (2) misuse of the Criminal Justice
portal to obtain the personal information of Mike Hall and three other
persons, and in disclosing Mike Hall’s personal information to Mike
Birdwell; (3) violation of Tenn. Code Ann. § 39-16-404; (4) violation of
Tenn. Code Ann. § 53-10-306; (5) his investigation of the DTF director was
“outside [the] scope of his job” and “should have been forwarded to a
higher authority, such as the TBI, DEA, FBI, or DA’s office”; (6) failure to
follow Cleveland Police Department policies; and (7) two letters from
District Attorney General Bebb stating, among other things, that “Detective
Brumley will not be called as a witness by the State of Tennessee in any
criminal proceeding in this District” such that he “has no credibility with
this Office.”
Brumley v. City of Cleveland, No. E2012-00002-COA-R3-CV, 2013 WL 1737860, at *1-
3 (Tenn. Ct. App. Apr. 23, 2013) (“Brumley II”)2 (internal footnotes omitted).
Janice Casteel, the City Manager, affirmed the termination. Plaintiff filed an
application for writ of certiorari with the circuit court and submitted new evidence for the
court’s consideration. The new evidence was summarized by this court as follows:
2
Plaintiff also appealed a denial of an application for writ of certiorari resulting from an unrelated
employment decision in 2010. See Brumley v. City of Cleveland, No. E2010-00840-COA-R3-CV, 2011
WL 1326239 (Tenn. Ct. App. Apr. 7, 2011) (“Brumley I”).
-3-
[Plaintiff’s] offer of proof consisted of the following: (1) his own live
testimony, including his recollection of the events surrounding his
investigation of Director Hall; (2) the live testimony of six other witnesses,
including pharmacist Birdwell, four former or current law enforcement
officers, and the City Attorney; (3) the deposition testimony of Kim
Harmon, a Tennessee Bureau of Investigation (“TBI”) agent; (4)
documentation from two earlier and generally unrelated criminal cases in
which [Plaintiff] was involved as a witness; and (5) documentation from an
earlier TBI investigation of Chief Snyder.
Our review of the administrative record and the testimony in the offer of
proof establishes that very few, if any, of the facts of [Plaintiff’s]
investigation that led to his termination are disputed. [Plaintiff’s] argument
is that his investigation was properly conducted and that he did nothing
wrong or inappropriate. He therefore contends that the City should not
have terminated his employment. For instance, in an effort to discredit the
allegation that he should have informed his superior officer of his self-
initiated investigation of Director Hall and should have opened a case file,
[Plaintiff] presented the testimony of Matt Jenkins, a Cleveland police
officer, and Abe Hayes, a retired Cleveland police officer, who each
testified that it was not common practice for officers to open a case file and
inform their superior officers of criminal investigations that are in the early
preliminary stage.
[Plaintiff] also offered the deposition testimony of Kim Harmon, a TBI
agent who trained other law enforcement agents to investigate prescription
abuse cases. Agent Harmon testified that at the time [Plaintiff] conducted
the investigation of Director Hall, the TBI was training agents that it was
proper and legal to ask a pharmacist to check the PMP database to see if a
person’s prescription drug history raised any suspicion of criminal activity.
Agent Harmon further testified that shortly after [Plaintiff’s] investigation,
however, it was determined that such an informal inquiry without a court
order would be improper and unlawful. At the administrative appeal
hearing before City Manager Casteel, Chief Snyder stated that neither
Agent Harmon nor anyone else from the TBI had ever provided the
Cleveland Police Department with any training regarding the PMP
database. Agent Harmon’s proffered testimony thus bears limited
relevance to the issue of whether the City Manager acted arbitrarily. Det.
Pritchard testified at the administrative appeal hearing that “according to
the Board of Pharmacy’s attorney, you cannot ask a pharmacist or initiate
-4-
conversation with a pharmacist to indulge or look into that database. It
must be done by a court order signed by the DA and the judge.”
Brumley II, 2013 WL 1737860, at *5-6. Following a hearing on November 17, 2011, the
trial court excluded the new evidence. The trial court denied the petition and upheld the
City Manager’s decision, finding that the grounds for termination were supported by
material evidence, with the exception of the allegation that Plaintiff violated Tennessee
Code Annotated section 39-16-404. Plaintiff appealed the denial of the writ to this court,
which held that the trial court properly excluded the new evidence because the evidence
was “irrelevant to the pertinent question before the court,” namely whether the City
Manager acted arbitrarily or capriciously in upholding the termination. Id. at *6. This
court further held that the City Manager’s decision was supported by material evidence in
the record and that the City Manager had not acted arbitrarily or capriciously in
upholding the termination. Id. at *7.
Before the trial court denied the petition for a writ of certiorari and well before this
court issued its opinion in Brumley II, Plaintiff filed this action against the City on
August 23, 2011. He asserted causes of action for common law retaliatory discharge;
retaliatory discharge under the Tennessee Public Protection Act (“the TPPA”), codified at
Tennessee Code Annotated section 50-1-304 and commonly referred to as “the
Whistleblower Act”; and violation of his rights pursuant to the First Amendment of the
United States Constitution.3 He alleged that he was fired for reporting Police Chief Wes
Snyder for the crime of official misconduct and official oppression. Meanwhile, this
court issued its opinion in Brumley II on April 23, 2013.
On January 30, 2014, the City sought summary judgment dismissal, alleging that it
was immune from suit for common law retaliatory discharge and that res judicata and
collateral estoppel barred the TPPA claim because the legality of his termination had
been litigated in Brumley II. The City also asserted that dismissal of the TPPA claim was
appropriate because Plaintiff could not establish the exclusive causal relationship
between the protected activity and his termination or that the activity complained of was
illegal. Plaintiff conceded that the City was immune from suit for common law
retaliatory discharge. However, he asserted that res judicata and collateral estoppel did
not operate to bar his TPPA claim. He argued that the legality of his termination in light
of the TPPA was never fully addressed or litigated because review of the hearing was
limited to the parameters of the common law writ of certiorari.
3
The case was initially removed to federal court in light of the federal claim. The case was remanded
following Plaintiff’s voluntary dismissal of the federal claim.
-5-
The court granted the motion for summary judgment, finding that the TPPA claim
was barred by the doctrine of res judicata in light of this court’s decision in Brumley II.
In so holding, the court stated,
Plaintiff complains that in the prior proceeding, he was not afforded
fairness and due process. No such assertion, however, was made in those
proceedings, nor was a simultaneous retaliatory discharge action filed
which could have been consolidated with that proceeding.
This timely appeal followed the denial of post-trial motions.
II. ISSUES
We consolidate and restate the issues raised on appeal as follows:
A. Whether the trial court erred in granting summary judgment based
upon the related doctrines of res judicata and collateral estoppel.
B. Whether the City is entitled to summary judgment because Plaintiff
cannot establish the essential elements of his claim.
III. STANDARD OF REVIEW
The summary judgment standard as applied to retaliatory discharge actions was
amended on June 10, 2011. See 2011 Tenn. Pub. Acts 461. The amendment, now
codified at Tennessee Code Annotated section 50-1-304(f), functionally overruled the
retaliatory discharge summary judgment analysis in Kinsler v. Berkline, LLC, 320 S.W.3d
796 (Tenn. 2010) and Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010) and
provided an elaborate framework concerning the allocation of the burden of proof and the
order of presentation of proof for cases that accrued prior to June 10, 2011. Bige v. City
of Etowah, No. M2013-01771-COA-R3-CV, 2014 WL 6888857, at *4 (Tenn. Ct. App.
Dec. 4, 2014) (discussing the applicability of the amendment); see also 2011 Tenn. Pub.
Acts 461 (“This act shall take effect upon becoming a law, the public welfare requiring it
and shall apply to all causes of action accruing on or after such effective date”).
Plaintiff’s cause of action in this case accrued no later than August 24, 2010, the date his
employment was terminated; therefore, section 50-1-304(f) is inapplicable.
This action was initiated on August 23, 2011; accordingly, the dispositive
summary judgment motion is governed by Tennessee Code Annotated section 20-16-101,
which provides,
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In motions for summary judgment in any civil action in Tennessee, the
moving party who does not bear the burden of proof at trial shall prevail on
its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential
element of the nonmoving party’s claim; or
(2) Demonstrates to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the
nonmoving party’s claim.
Tenn. Code Ann. § 20-16-101.
A trial court’s decision to grant a motion for summary judgment presents a
question of law, which we review de novo with no presumption of correctness. See City
of Tullahoma v. Bedford Cnty., 938 S.W.2d 408, 417 (Tenn. 1997). We must view all of
the evidence in the light most favorable to the nonmoving party and resolve all factual
inferences in the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76,
84 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox
Cnty. Bd of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only
one conclusion, then the court’s summary judgment will be upheld because the moving
party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d
525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).
IV. DISCUSSION
A.
Plaintiff argues that the trial court erred in summarily dismissing his claim when
he was never afforded an opportunity to establish that the City terminated his
employment solely for his refusal to remain silent about an illegal activity. He claims
review in Brumley II was limited to whether the City Manager exceeded her jurisdiction
or acted illegally, arbitrarily, or capriciously in upholding his termination. The City
responds that Plaintiff should be precluded from challenging the legality of his
termination and contesting the validity of the reasons proffered by the City in justification
for his termination because the issue was raised, litigated, and decided in Brumley II.
Res judicata bars a second suit between the same parties or their privies on the
same cause of action with respect to all issues that were or could have been litigated in
the former suit. State v. Thompson, 285 S.W.3d 840, 848 (Tenn. 2009) (citing Massengill
v. Scott, 738 S.W.2d 629 (Tenn. 1987)). “[C]ollateral estoppel (also known as issue
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preclusion) has been described as an extension of the doctrine of res judicata (also known
as claim preclusion).” Id. (citing Massengill, 738 S.W.2d at 631-32). Collateral estoppel
operates to bar a second suit between the same parties and their privies on a different
cause of action as to issues which were actually litigated and determined in the former
suit. Id. The party invoking the doctrine of collateral estoppel must demonstrate that
1. [T]he issue sought to be precluded is identical to the issue decided in
the earlier suit;
2. [T]he issue sought to be precluded was actually litigated and decided
on the merits in the earlier suit;
3. [T]he judgment in the earlier suit has become final;
4. [T]he party against whom collateral estoppel is asserted was a party
or is in privity with a party to the earlier suit; and
5. [T]he party against whom collateral estoppel is asserted had a full
and fair opportunity in the earlier suit to litigate the new issue now sought
to be precluded.
Beaty v. McGraw, 15 S.W.3d 819, 824-25 (Tenn. Ct. App. 1998) (internal citations
omitted).
Plaintiff’s administrative appeal of his termination was limited by the procedures
applicable in a certiorari review action. “[T]he primary consequence of a determination
that a party must seek judicial review through the common law writ of certiorari
procedure is that the trial court must apply a limited standard of review to decisions
already made by administrative officials, rather than address the issue de novo as the
initial decision maker.” State ex rel. Moore & Assocs., Inc. v. West, 246 S.W.3d 569, 574
(Tenn. Ct. App. 2005). Furthermore,
Reviewing courts may grant relief only when the board or agency whose
decision is being reviewed has exceeded its jurisdiction or has acted
illegally, arbitrarily, or fraudulently.
Review under a common-law writ of certiorari does not extend to a
redetermination of the facts found by the board or agency whose decision is
being reviewed. The courts may not (1) inquire into the intrinsic
correctness of the decision, (2) reweigh the evidence, or (3) substitute their
judgment for that of the board or agency. However, they may review the
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record solely to determine whether it contains any material evidence to
support the decision because a decision without evidentiary support is an
arbitrary one.
Leonard Plating Co. v. Metro. Gov’t of Nashville and Davidson Cnty., 213 S.W.3d 898,
903-04 (Tenn. Ct. App. 2006) (internal citations and footnotes omitted).
Brumley II involved the administrative appeal of Plaintiff’s termination. Certiorari
review was limited to whether the City Manager exceeded her jurisdiction or acted
illegally, arbitrarily, or fraudulently in upholding the termination. Notably, Plaintiff
never argued that the City Manager exceeded her jurisdiction or acted illegally or
fraudulently. Brumley II, 2013 WL 1737860, at *4 (“[Plaintiff] does not argue that the
City Manager’s action exceeded her jurisdiction or that it was illegal.”) He argued that
her decision was arbitrary because he was unfairly denied the opportunity to present
evidence to rebut the purported reasons for his termination. This court held that Plaintiff
never attempted to present the proffered evidence and that such evidence was irrelevant
to the issue of whether the City Manager’s decision was supported by material evidence.
Citing Brumley I, this court defined material evidence as “relevant evidence that a
reasonable person would accept as adequate to support a rational conclusion.” Brumley
II, 2013 WL 1737860, at *7. In holding that the decision was supported by material
evidence, this court noted that it was not to question the “wisdom” of the decision or to
substitute its judgment for that of the City Manager. Id. This court never considered
whether the purported reasons for Plaintiff’s termination may have been pretextual and
specifically rejected evidence in support of that assertion as irrelevant.
The cause of action at issue in this case is a retaliatory discharge claim. The crux
of the issue in this action is whether viewing the evidence in the light most favorable to
Plaintiff and resolving all factual inferences in his favor, the City successfully
demonstrated that Plaintiff cannot establish that his employment was terminated solely
for his refusal to remain silent about an illegal activity. Tenn. Code Ann. § 50-1-304(b);
Bige, 2014 WL 6888857, at *8. The issue before the court in Brumley II and in this
action is similar but not identical. Accordingly, the trial court erred in refusing to
consider the retaliatory discharge claim when the cases involved a different cause of
action and a different issue. This conclusion does not end our inquiry because the City
argued, alternatively, that summary judgment was appropriate because Plaintiff cannot
establish the essential elements of his claim. This court “may affirm a judgment on
different grounds than those relied on by the trial court when the trial court reached the
correct result.” City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 60 n.
18 (Tenn. Ct. App. 2004); see also Bige, 2014 WL 6888857, at *8 (quoting Brentwood
for the same proposition under similar circumstances).
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B.
Tennessee follows the “at-will” employment doctrine. At-will employment means
that employment contracts of indefinite duration are terminable at the will of the
employer or employee for any or no cause. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d
528, 534-35 (Tenn. 2002). Nonetheless, there are important restrictions on an employer’s
right to terminate an employee. Id. at 535. One such restriction is the Tennessee General
Assembly’s statutory cause of action pursuant to the TPPA. Under the TPPA, an
employee cannot “be discharged or terminated solely for refusing to participate in, or for
refusing to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b).
Within the meaning of the statute, “illegal activities” are: “activities that are in violation
of the criminal or civil code of this state or the United States or any regulation intended to
protect the public health, safety or welfare.” Tenn. Code Ann. § 50-1-304(a)(3).
To prevail on a whistleblower claim under the TPPA, a plaintiff must establish by
a preponderance of the evidence that:
(1) the plaintiff was an employee of the defendant;
(2) the plaintiff refused to participate in or remain silent about illegal
activity;
(3) the defendant employer discharged or terminated the plaintiff’s
employment; and
(4) the defendant terminated the plaintiff’s employment solely for the
plaintiff’s refusal to participate in or remain silent about the illegal activity.
Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 437 (Tenn. 2011)
(citing Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 27 (Tenn. 2011); Voss v.
Shelter Mut. Ins. Co., 958 S.W.2d 342, 344 (Tenn. Ct. App. 1997)).
As courts have previously observed regarding the causation element of a
retaliatory discharge claim, “direct evidence of [the employer’s] motivation is rarely
within the plaintiff’s possession.” Newcomb v. Kohler Co., 222 S.W.3d 368, 391 (Tenn.
Ct. App. 2006) (quoting Guy, 79 S.W.3d at 534). Causation, or the employer’s
motivation in discharging the employee, must be gleaned from careful consideration of
the entirety of the evidence of the circumstances surrounding the employer’s action in
light of the employee’s refusal to participate in or remain silent about alleged illegal
activities. Id. Because we recognize that plaintiffs in retaliatory discharge cases will
primarily rely on circumstantial evidence to establish liability, see Austin v. Shelby
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County Gov’t, 3 S.W.3d 474, 480-81 (Tenn. Ct. App. 1999), that evidence must be more
than the plaintiff’s speculation on why the termination ultimately occurred. Newcomb,
222 S.W.3d at 391 (“A plaintiff’s subjective beliefs, mere speculation, or testimony that
the employee can think of no other reason for the discharge cannot, in and of themselves,
create the requisite causal relationship.”) (supporting citations omitted).
“[C]ircumstantial evidence must be compelling on the issue that retaliation was a
substantial factor in the decision to terminate the Plaintiffs.” Foster v. Colonial Dev.,
Inc., No. E2000-02917-COA-R3-CV, 2002 WL 185477, at *5 (Tenn. Ct. App. Feb. 6,
2002) (citing Thomason v. Better-Bilt Aluminum Products, 831 S.W.2d 291 (Tenn. Ct.
App. 1992)).
The City argues that summary judgment is appropriate because Plaintiff cannot
identify an illegal activity within the meaning of the TPPA and because he cannot
establish that his refusal to participate in or remain silent about said activity was the sole
reason for his termination. The City notes that it provided six non-retaliatory reasons for
the termination that were upheld by this court in Brumley II. Plaintiff responds that his
attempts to establish the elements of his claim were thwarted by the denial of discovery.
He claims that he presented circumstantial evidence to establish that the only reason for
his firing was to retaliate against him for reporting illegal activity, namely Chief Snyder’s
official misconduct and official oppression. The crime of official misconduct, codified at
Tennessee Code Annotated section 39-16-402, is described, in pertinent part, as follows:
(a) A public servant commits an offense who, with intent to obtain a
benefit or to harm another, intentionally or knowingly:
(1) Commits an act relating to the public servant’s office
or employment that constitutes an unauthorized exercise of
official power;
(2) Commits an act under color of office or employment
that exceeds the public servant’s official power;
(3) Refrains from performing a duty that is imposed by
law or that is clearly inherent in the nature of the public
servant’s office or employment;
(4) Violates a law relating to the public servant’s office or
employment; or
(5) Receives any benefit not otherwise authorized by law.
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(b) For purposes of subdivision (a)(2), a public servant commits an act
under color of office or employment who acts or purports to act in an
official capacity or takes advantage of the actual or purported capacity.
Likewise, the crime of official oppression, codified at Tennessee Code Annotated section
39-16-403, is described as follows:
(a) A public servant acting under color of office or employment
commits an offense who:
(1) Intentionally subjects another to mistreatment or to
arrest, detention, stop, frisk, halt, search, seizure,
dispossession, assessment or lien when the public servant
knows the conduct is unlawful; or
(2) Intentionally denies or impedes another in the exercise
or enjoyment of any right, privilege, power or immunity,
when the public servant knows the conduct is unlawful.
(b) For purposes of this section, a public servant acts under color of office
or employment if the public servant acts, or purports to act, in an
official capacity or takes advantage of the actual or purported capacity.
In support of his claim of official misconduct and official oppression, Plaintiff alleged
that he was issued a citation at the direction of Chief Snyder for making harassing
telephone calls. He claimed that the citation was improper and in violation of the law
because the City did not have jurisdiction over the incident when the incident occurred in
the county. He asserted that Chief Snyder was aware of the illegality of the citation due
to the lack of jurisdiction. Following the incident, Plaintiff reported the incident to the
Tennessee Bureau of Investigation (“the TBI”). Plaintiff claims that Chief Snyder’s
behavior toward him changed after the incident and that he was eventually terminated as
a result of the incident.
Additionally, Plaintiff presented a plethora of evidence in response to the City’s
claim that one or more legitimate, nondiscriminatory reasons supported his termination.
See Brumley II, 2013 WL 1737860, at *5-6. This evidence was relevant in this case and
compelling on the issue of whether retaliation was a substantial factor in the decision to
terminate Plaintiff. Considering the evidence in the light most favorable to Plaintiff, as
we are constrained to do, we conclude that there was material evidence from which the
trier of fact could conclude that Plaintiff’s employment was terminated solely for his
refusal to remain silent about Chief Snyder’s alleged illegal actions. Accordingly, we
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further conclude that the trial court erred in dismissing the complaint at this point in the
proceedings because material questions of fact remained. In so concluding, we express
no opinion as to whether Plaintiff’s employment was actually terminated solely for his
refusal to remain silent about Chief Snyder’s alleged illegal actions.
V. CONCLUSION
The judgment of the trial court is reversed. The case is remanded for proceedings
consistent with this opinion. Costs of the appeal are taxed to the appellee, the City of
Cleveland.
_________________________________
JOHN W. McCLARTY, JUDGE
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https://www.courtlistener.com/api/rest/v3/opinions/1353951/ | 462 S.E.2d 750 (1995)
265 Ga. 779
QUILLEN
v.
QUILLEN.
No. S95A1172.
Supreme Court of Georgia.
October 23, 1995.
Richard G. Milam, Garland & Milam, P.C., Jackson, for Elaine Quillen.
J. Mark Brittain, Smith, Welch & Studdard, Stockbridge, for Ralph Quillen.
CARLEY, Justice.
Appellant and appellee were divorced pursuant to a decree which incorporated their settlement agreement. One provision of the incorporated settlement agreement obligated appellee to pay monthly alimony until appellant "cohabits as same is defined by Georgia law." When appellee subsequently failed to pay the alimony, appellant filed this contempt *751 action against him. After conducting a hearing, the trial court found that, as of January 1, 1994, appellant cohabited with a third party. Based upon this finding, the trial court concluded that appellee's obligation to pay alimony ended on that date and that he was not in contempt for failing to make payments thereafter. We granted appellant's application for a discretionary appeal from the trial court's order.
1. Appellant urges that the modification of a final divorce decree can "only be accomplished by proceedings under OCGA § 19-6-19" and that the trial court erroneously exceeded its jurisdiction by modifying the final divorce decree in this contempt action.
To obtain the modification of a final divorce decree, proceedings must be instituted pursuant to OCGA § 19-6-19. However, unless prohibited by statute or public policy, all persons are free to contract on any terms regarding a subject matter in which they have an interest. Porubiansky v. Emory University, 156 Ga.App. 602, 603, 275 S.E.2d 163 (1980), aff'd, 248 Ga. 391, 282 S.E.2d 903 (1981). Thus, we have recognized that divorcing parties are free to contract for self-executing changes in an alimony obligation upon the occurrence of certain events. Perry v. Perry, 265 Ga. 186, 187(2), 454 S.E.2d 122 (1995); Weaver v. Jones, 260 Ga. 493, 494(3), 396 S.E.2d 890 (1990). OCGA § 19-6-19 provides that cohabitation is a ground for seeking a judicial modification of an alimony obligation. However, nothing in that statute provides that the divorcing parties themselves cannot contract for the automatic termination of the alimony obligation of one party upon the cohabitation of the other. Thus, in Kent v. Kent, 265 Ga. 211, 213(2), fn. 4, 452 S.E.2d 764 (1995), we held that, if
the parties agree that alimony will terminate on the former spouse's cohabitation with a third party, [and] that situation occurs, the obligated spouse, under the terms of the agreement, is authorized to stop making alimony payments. (Emphasis in original.)
This holding in Kent recognizes the contractual freedom of divorcing parties to agree to a self-executing termination of an alimony obligation upon the occurrence of cohabitation.
Under Kent, the former spouse who brings a contempt action will not be faced with what, in essence, is the obligated spouse's impermissible counterclaim for modification of alimony. The holding in Kent is premised upon the divorcing parties' mutual agreement to an automatic termination of alimony in the event of cohabitation, which agreement has been incorporated into the divorce decree. Thus, when cohabitation is relied upon as the ground for ceasing to pay and a contempt action is filed, the trial court is called upon to determine whether the pre-existing incorporated agreement authorizing the obligated spouse's automatic termination of the obligation has been triggered by the former spouse's subsequent cohabitation. Therefore, the question for resolution by the trial court is whether the obligated spouse is in contempt of the existing terms of the divorce decree, not whether the obligated spouse is entitled to a subsequent modification of the existing terms of that decree. The obligated spouse's determination that the former spouse has cohabited may be a subjective one, but the trial court must make an objective determination in that regard. If the former spouse did cohabit, then the alimony obligation has been terminated in accordance with the pre-existing incorporated agreement and the obligated spouse cannot be found to be in contempt of the divorce decree. If, on the other hand, there was no such cohabitation, the obligated spouse "risks being found in contempt, or, at any rate, liable for all payments...." Kent v. Kent, supra at 213(2), 452 S.E.2d 764.
It may be true that, under Kent, the former spouse who brings a contempt action will not be afforded the same venue and jury trial options as would be available in a modification proceeding instituted by the obligated spouse pursuant to OCGA § 19-6-19. However, that is entirely a consequence of the former spouse's own agreement to an automatic *752 termination of alimony upon his or her cohabitation. If a former spouse does not wish to have the alimony obligation subject to an automatic termination upon his or her cohabitation, then he or she should not agree to it. If, on the other hand, the former spouse has made such an agreement, then he or she is bound thereby and must abide by the procedural, as well as the substantive, consequences thereof.
The premise of appellant's argument is that a modification proceeding pursuant to OCGA § 19-6-19 is the exclusive method by which divorcing parties can accomplish a termination of alimony based upon cohabitation. However, this premise is contrary to Kent, which is based upon established legal principles and to which we adhere. Therefore, appellant's contention that the trial court exceeded its jurisdiction in this contempt action is without merit.
2. The trial court's order contains the finding that, "based on the evidence presented, including that of [appellant] herself, [she] has cohabited with a third party." Although appellant urges that this finding is not supported by the evidence, she has not provided a transcript of the contempt hearing. In the absence of a transcript, we must assume that the evidence presented at the hearing was sufficient to support the finding of the trial court. Everett v. Everett, 256 Ga. 632(1), 352 S.E.2d 370 (1987).
Judgment affirmed.
All the Justices concur, except HUNSTEIN, J., who dissents.
HUNSTEIN, Justice, dissenting.
This case marks a pivotal point in the direction this Court will follow in regard to divorce settlement agreements. Over my dissent, this Court has already allowed parties to circumvent the judicial process altogether by executing judicially-unsupervised contracts that resolve issues arising out of the dissolution of the marriage contract. Eickhoff v. Eickhoff, 263 Ga. 498, 435 S.E.2d 914 (1993). With the instant case this Court is now permitting parties, whose settlement agreement was incorporated into a divorce decree, to divest the trial court of all supervision over its decree by upholding a provision that places unfettered discretion over the unilateral termination of a judicially-sanctioned obligation, i.e., alimony, into the hands of one party to the decree. If this State wants to move in the direction of self-help divorces with the judiciary acting as a mere rubber-stamp license-fee collector, I believe it should be the Legislature that makes that decision, not this Court.
I find that the termination-upon-cohabitation provision in this case violates the public policy of this State, as expressed in our Constitution and our statutes. As the majority recognizes, the provision results in an implied waiver both of venue rights, see Art. 6, Sec. 2, Par. 1 of the Georgia Constitution (1983), and jury trial rights, see Art. 1, Sec. 1, Par. 11(a), even though the contract fails to reflect that such waiver was "clearly intended and expressed by the person so waiving." Garcia v. Garcia, 232 Ga. 869, 871, 209 S.E.2d 201 (1974).[1] The provision directly contradicts the Legislature's mandate set forth in OCGA § 19-6-19(b).[2] Last, but not least, the provision violates public policy by depriving the courts of their duty to oversee modification of their judgments.
While this Court has a long history of authorizing and, indeed, strongly encouraging *753 the private settlement of family affairs, see, e.g., Trammell v. West, 224 Ga. 365(1), 162 S.E.2d 353 (1968), we have not heretofore approved a divorce settlement agreement provision which divests the judiciary of its discretion, implicates constitutional rights, and conflicts with express statutory provisions. None of the case law cited by the majority justifies or supports its approval of this provision.[3]
Accordingly, while I concur in the affirmance of the one issue properly before the trial court, namely, the finding that Ralph Quillen was not in wilful contempt of court, I would reverse the trial court's ruling retroactively terminating Ralph Quillen's alimony obligation and would require him to file a modification action in the proper venue pursuant to OCGA § 19-6-19, with Elaine Quillen entitled, upon proper request, to a jury trial on the cohabitation issue.
NOTES
[1] Ironically, the majority allows an implied pre-litigation waiver of the right to a jury trial in this divorce settlement agreement, although rejecting in purely commercial contracts those provisions which explicitly waive that right. See Ekereke v. Obong, 265 Ga. 728, 462 S.E.2d 372 (1995); American Southern Financial v. Yang, 264 Ga. 513, 448 S.E.2d 450 (1994); Bank South, N.A. v. Howard, 264 Ga. 339, 444 S.E.2d 799 (1994).
[2] The termination-upon-cohabitation provision conflicts with OCGA § 19-6-19 inasmuch as that statute requires the alimony-paying spouse to file a modification action "under the same rules of procedure applicable to divorce proceedings," id. at (a); authorizes jury trials in modification actions, upon proper demand, see McElroy v. McElroy, 252 Ga. 553(1), 314 S.E.2d 893 (1984); recognizes that cohabitation is merely a ground to modify alimony and disallows automatic termination or reduction of the alimony obligation, see Allen v. Allen, 265 Ga. 53(2), 452 S.E.2d 767 (1995); and prohibits unilateral termination of alimony upon a claim of cohabitation. Hendrix v. Stone, 261 Ga. 874, 412 S.E.2d 536 (1992).
[3] The majority relies upon footnoted dicta in Kent v. Kent, 265 Ga. 211, 452 S.E.2d 764 (1995), a case in which the alimony-paying spouse did file, properly, a modification action to terminate his support payments to his ex-wife on the basis of her alleged cohabitation with a third party. Although the majority cites other cases in which this Court has approved some self-executing future modification provisions, the provisions in those cases are clearly distinguishable, in that those provisions were set forth so explicitly that subjective application was eliminated and the consequences thereof could be reviewed by the trial court before the provision was incorporated into the divorce decree. See, e.g., Weaver v. Jones, 260 Ga. 493(3), 396 S.E.2d 890 (1990) and Pearce v. Pearce, 244 Ga. 69, 257 S.E.2d 904 (1979) (inversion clause cases where change was not as to amount of support but only as to person responsible for making the payment); Perry v. Perry, 265 Ga. 186, 454 S.E.2d 122 (1995) and Cabaniss v. Cabaniss, 251 Ga. 177(1), 304 S.E.2d 65 (1983) (escalation clause cases where fixed base amount of support was awarded and variable future award was made contingent upon objective, specified changes). See also Fender v. Fender, 249 Ga. 765, 294 S.E.2d 472 (1982) (defining scope of modification actions). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353971/ | 462 S.E.2d 388 (1995)
218 Ga. App. 481
CROMWELL
v.
The STATE.
No. A95A1388.
Court of Appeals of Georgia.
August 23, 1995.
Reconsideration Denied September 12, 1995.
Certiorari Denied December 1, 1995.
*389 Ray B. Gary, Jr., J. Michael Treadaway, Marietta, for appellant.
David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.
SMITH, Judge.
Leroy Cromwell, Jr. and three other persons were charged with the offense of arson in the first degree in connection with the burning of Cromwell's car. Cromwell's co-defendants pled guilty; a jury found Cromwell guilty as charged. He appeals from his conviction and sentence following the denial of his motion for new trial.
1. Cromwell contends the trial court erred in allowing the prosecutor to question him regarding his silence after arrest. We agree and reverse.
Cromwell testified in his own defense, insisting he knew nothing about the plot to burn his car. To further this defense, his attorney questioned him regarding his cooperation during the initial investigation. Cromwell testified that during an interview with Douglas County investigators at his workplace he "answered every question they wanted to know" and did not refuse to answer any questions. He further testified that on the day after that interview, he gave investigators permission to search a storage area he rented and fully cooperated with them during the search.
Following Cromwell's direct testimony and outside the presence of the jury, the prosecutor argued that Cromwell's testimony on direct examination had "opened the door" to questioning Cromwell about the fact that after his arrest he had refused to answer questions and had invoked his right to remain silent. The trial court agreed, ruling that this line of questioning was permissible because Cromwell had testified on direct examination that his cooperation was complete. Pursuant to that ruling, Cromwell was asked during cross-examination whether he considered it "cooperation" when, after he was arrested, he had invoked his right to counsel and refused to answer questions.
The trial court's ruling was error. First, the court's characterization of Cromwell's testimony on direct examination was incorrect. Defense counsel confined his questions to specific incidents of cooperation that took place during the investigation and prior to the arrest. The limited focus of the questioning on direct examination is demonstrated by the following colloquy: "Q: Didwere you cooperative up until the point where you got arrested? A: Yes, sir. Completely. Q: Upthat was up until the arrest. Is that correct? A: Exactly." (Emphasis supplied.) Consequently, evidence that Cromwell chose to remain silent after he was arrested did not contradict or impeach his testimony on direct examination that he had been completely cooperative before the arrest.
Second, and more importantly, even if the direct examination were not limited in scope, the questioning was improper. Although the United States Supreme Court has found no federal constitutional prohibition against cross-examining defendants for impeachment purposes regarding their silence after arrest absent Miranda warnings, the possibility was left open for state courts to prohibit such questioning. Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982). In Mallory v. State, 261 Ga. 625, 629-630(5), 409 S.E.2d 839 (1991), the Georgia Supreme Court held unequivocally that Georgia law prohibits such questioning: "[I]n criminal cases, a comment upon a defendant's silence or failure to come forward is far more prejudicial than probative ... [and] will not *390 be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense."
The trial court erred in permitting the questioning on this subject. Given the evidence in this case, we cannot say beyond a reasonable doubt that this error did not contribute to the jury's verdict; it was therefore not harmless error. Vaughn v. State, 248 Ga. 127, 281 S.E.2d 594 (1981). A new trial is required.
2. Because they involve issues of admissibility of evidence that may recur upon retrial, we address Cromwell's remaining enumerations of error.
Cromwell argues that the trial court erroneously admitted into evidence the tape recording of a conversation between two of his co-defendants. One co-defendant had been arrested when the tape was made. He admitted his complicity in the crime and agreed, at the instance of the authorities, to call another of the co-defendants from the sheriff's office and discuss the scheme. Their conversation was recorded. It was admitted into evidence over Cromwell's objection that it was hearsay and that it improperly bolstered a witness with an out-of-court declaration not under oath.
No improper bolstering took place. The participants in the conversation were present in court and subject to cross-examination. The concerns of the rule against hearsay were satisfied, and the recording was therefore admissible as a prior consistent statement under Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985). See Carroll v. State, 261 Ga. 553, 554(1), 408 S.E.2d 412 (1991).
OCGA § 24-3-5 also provides an exception to the rule against hearsay: "After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." A prima facie case of the conspiracy to burn Cromwell's car had been made at the time the tape recording was introduced. Jones v. State, 265 Ga. 84, 85(2), 453 S.E.2d 716 (1995). Cromwell argues, citing Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976), that the conspiracy ended when the first co-conspirator was arrested.
"The rule is that a conspiracy does not necessarily end simply because one or more of the conspirators have been arrested. So long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues, the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other." (Citations and punctuation omitted.) Chews v. State, 187 Ga.App. 600, 603-604(2), 371 S.E.2d 124 (1988). See also Jones, supra. In this case, it is evident from the substance of the recorded conversation that at least one of the co-conspirators was intent on concealing the crime, the identity of the co-conspirators, and their involvement; the concealment phase of the conspiracy was ongoing. The recording was properly admitted into evidence.
3. Cromwell also argues that a tape recorded interview with the minor daughter of one of the co-defendants was improperly admitted into evidence and played for the jury. Cromwell maintains that the prejudicial nature of comments by the interviewing investigator outweighed any probative value of the tape.
Defense counsel had not heard the tape until it was played for the jury, and he objected to its introduction. In cross-examining the witness, defense counsel sought to undermine her veracity by eliciting the information that she had given the recorded statement and could be prosecuted for arson if she lied on the witness stand. The tape had not previously been played during the trial; it was admitted into evidence over objection after this cross-examination, under the authority of Cuzzort, supra, to show that the witness's prior statement was consistent with her trial testimony. One brief portion of the tape contains comments by the investigator to the witness, pointing out the serious nature of the crime of arson and indicating that firefighters risked their lives when the car burned and could have been hurt. In addition, the investigator blamed crimes such as this for the general public's rising insurance rates. At the close of the redirect examination of the witness, defense counsel moved for a mistrial based on the inflammatory and *391 prejudicial nature of the comments on the tape. The motion was denied. No curative or limiting instruction was requested.
Citing Ailstock v. State, 159 Ga.App. 482, 486-488, 283 S.E.2d 698 (1981), Cromwell argues that the comments were irrelevant, and because all the jurors were car owners, were so prejudicial as to unduly influence the jury's consideration of his guilt or innocence. Ailstock is distinguished factually from this case, however, because it dealt with evidence that impermissibly placed a defendant's character in issue and not with irrelevant and prejudicial comments.
The decision whether to admit evidence challenged on the basis that its prejudicial nature outweighs its probative value is within the discretion of the trial court. Carroll, supra at 554(2), 408 S.E.2d 412. The trial court's decision in this case was made after the fact, in the context of a motion for mistrial after the tape was previously, and properly, ruled admissible. Given that context, and the fact that the defense cross-examination of the witness mentioned the tape and legitimated its admission into evidence, we find no abuse of discretion in the trial court's denying the motion for mistrial. It is well established that a party may not complain of matters caused by his own conduct. See State v. Griffin, 204 Ga.App. 459, 460(1), 419 S.E.2d 528 (1992).
Judgment reversed.
BIRDSONG, P.J., and JOHNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353980/ | 549 F.3d 605 (2008)
Elly GROSS; Roman Neuberger; John Brand, in their individual capacities as thirdparty beneficiaries of the agreements leading to the establishment of the German Foundation "Remembrance, Responsibility and the Future", as representatives of all German Foundation beneficiaries; Sylvia Greenbaum, Appellants in 07-3726
v.
THE GERMAN FOUNDATION INDUSTRIAL INITIATIVE, and its constituent managing companies; Allianz AG; BASF AG; Bayer AG; BMW AG; Commerzbank AG; Daimlerchrysler AG; Deutsche Bank AG; Degussa-Huells AG; Deutz AG; Dresdner Bank AG; Friedr Krupp AG Hoesch Krupp; Hoechst AG; Rag AG; Robert Bosch GMBH, Siemens AG; Veba AG; Volkswagen AG, sued individually; and as members of the German Foundation Industrial Initiative Barbara Schwartz Lee; Bernard Lee, Appellants in 07-3727. *606
v.
Deutsche Bank, AG; Dresdner Bank, AG.
Nos. 07-3726, 07-3727.
United States Court of Appeals, Third Circuit.
Argued October 29, 2008.
Opinion Filed December 10, 2008.
*607 Burt Neuborne, Esquire (Argued), New York University Law School, New York, NY, Agnieszka M. Fryszman, Esquire (Argued), Michael D. Hausfeld, Esquire, Kathleen M. Konopka, Esquire, Hilary K. Ratway, Esquire, Cohen, Milstein, Hausfeld & Toll P.L.L.C., Washington, DC, Lisa J. Rodriguez, Esquire, Trujillo Rodriguez & Richards, LLC, Haddonfield, NJ, Allyn Z. Lite, Esquire, Lite, Depalma, Greenberg & Rivas, Newark, NY, Attorneys for Appellants, Elly Gross, Barbara Schwartz Lee, and Bernard Lee.
Jeffrey Barist, Esquire (Argued), Sander Bak, Esquire, Felix Weinacht, Esquire, Milbank, Tweed, Hadley & McCloy, New York, NY, Attorney for Appellees, Deutsche Bank and Dresdner Bank.
Roger M. Witten, Esquire (Argued), Louis R. Cohen, Esquire, John A. Trenor, Esquire, Matthew E. Draper, Esquire, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, Attorney for Appellees, Allianz AG, Bayer AG, Commerzbank AG, Degussa-Huells AG, Deutz AG, and Rag Ag.
Konrad L. Cailteux, Esquire, Weil, Gotshal & Manges LLP, New York, NY, Attorney for Appellee, BMW AG.
Bud G. Holman, Esquire, Paul Doyle, Esquire, Kelley, Drye & Warren, New York, NY, Attorney for Appellee, DaimlerChrysler AG.
John J. Gibbons, Esquire, Terry Myers, Esquire, Thomas R. Valen, Esquire, Gibbons P.C., Newark, NJ, Attorneys for Appellee, ThyssenKrupp AG.
Brant W. Bishop, Esquire, Oreste P. McClung, Esquire, Kirkland & Ellis LLP, Street, N.W. Washington, DC, Attorney for Appellee, Siemens AG.
Thomas M. Mueller, Esquire, Mark D. McPherson, Esquire, Morrison & Foerster LLP, New York, NY, Attorney for Appellee, BASF AG.
*608 Neil McDonell, Esquire, Brian E. McGunigle, Esquire, Deirdre Sheridan, Esquire, Dorsey & Whitney LLP, New York, NY, Attorney for Appellee, Robert Bosch GmbH.
Daniel V. Gsovski, Esquire, Ian Ceresney, Esquire, Herzfeld & Rubin P.C., New York, NY, Attorney for Appellee, Volkswagen AG.
Before McKEE, NYGAARD, and MICHEL,[*] Circuit Judges.
OPINION OF THE COURT
MICHEL, Chief Circuit Judge.
At issue in this World War II reparations case is whether the Joint Statement of the Berlin Accords constitutes a privately enforceable contract between some of the participants to the Joint Statement. Appellants contend that the defendant German companies owe "interest" on their payments to a reparations fund created by the Berlin Accords. In a prior appeal to our court, we held that the claim presented a justiciable issue not foreclosed by the political question doctrine. Having again considered the allegations of the complaints, we hold that the disputed interest provision of the Joint Statement does not constitute or confer a privately enforceable cause of action on the Appellants, who assert standing as third-party beneficiaries. In so holding, we note the thoroughness of the district court's analysis and reasoning. Because we agree with Judge Debevoise's rationale, we adopt it as ours, with some minor points as described herein.
I. Background
Because the history and facts of this case are set forth in ample detail in our previous opinion, Gross v. German Foundation Industrial Initiative, 456 F.3d 363 (3d Cir.2006) ("Gross II"), and the two district court opinions, Gross v. German Foundation Industrial Initiative, 499 F.Supp.2d 606 (D.N.J.2007) ("Gross III"), and In re Nazi Era Cases Against German Defendants Litigation, 320 F.Supp.2d 235(D.N.J.2004) ("Gross I"), we do not repeat them here.[1] Rather, we briefly summarize the history and facts, insofar as they aid the present discussion.
The claims here involve reparations for Nazi-era slave labor, forced labor, appropriation of personal property, and dishonored insurance policies. As early as 1998, the United States and German governments, aware of the significance of the claims and the seriousness of the risk posed to the German economy, encouraged negotiations between the plaintiffs and the defendant German corporations. The negotiations involved senior diplomatic executives from both the U.S. and German governments, specifically and respectively former Deputy Secretary of the Treasury Stuart Eizenstat and Count Otto Lambsdorff, chief negotiator for former German Chancellor Gerhard Schroeder. Several German companies came together as the German Foundation Industrial Initiative ("the Initiative"), which acted as the negotiating arm of the German industry. Representing the claimants were plaintiffs' attorneys who had filed the U.S. civil actions.
After many months of intense negotiations and significant lucubration, on July *609 17, 2000, a diplomatic agreement, commonly referred to as the Berlin Accords or the Berlin Agreements, was reached as a means of resolving these long-standing claims. Under the agreement, the German Foundation "Remembrance, Responsibility and the Future" ("the Foundation") was established as the intended, exclusive forum for receiving, processing, and paying reparation claims at issue here. Germany and the German companies each agreed to contribute DM 5 billion to fund the Foundation. The plaintiffs' lawyers agreed to dismiss with prejudice the numerous pending litigations, so that the victims would receive payment through the Foundation rather than civil actions and that the German companies would achieve "all-embracing and enduring legal peace."
The Berlin Accords consist of (1) the Joint Statement, (2) the Executive Agreement between the United States and Germany, and (3) the Foundation Law. The Joint Statementformally titled "The Joint Statement on occasion of the final plenary meeting concluding international talks on the preparation of the Foundation `Remembrance, Responsibility and the Future'"sets forth a goal of the Foundation, which is to "provide dignified payments to hundreds of thousands of survivors and to others who suffered from wrongs during the National Socialist era and World War II." Joint Statement, pmbl. ¶ 12. The Joint Statement commits the German government and German industry to provide DM 10 billion in capitalization. As structured, the Initiative would collect DM 5 billion from individual German companies and then transfer the money to the Foundation. Particularly significant for this case, the last sentence of Paragraph 4(d) of the Joint Statement states:
German company funds will continue to be collected on a schedule and in a manner that will ensure that the interest earned thereon before and after their delivery to the Foundation will reach at least 100 million DM.
The second document, the Executive Agreement, outlines the U.S. and German governments' commitments to the Foundation and obligates the United States Executive, in all cases for which it is notified of a claim against a German company arising out of the WWII era, to file a statement of its foreign policy interests with the court in which the claim is pending, stating that United States' foreign policy interests favor resolution through the Foundation. The third document, the Foundation Law, is codified under German law and establishes the Foundation as the legal entity for processing claims and distributing the DM 10 billion fund.
On May 30, 2001, the German legislature declared "legal peace," triggering the obligations of the German government and the German companies to each pay DM 5 billion to the Foundation. The German government made timely payment, but the Initiative did not complete payment until December 2001, at which point it had transferred DM 5.1 billion, which included DM 100 million as the "interest" designated in Paragraph 4(d) of the Joint Statement.
Due to the delay in the Initiative's payment and the differing assertions of what the "interest" provision mandated, several claimants filed suit, attempting to enforce the "interest" provision of the Joint Statement. In June 2002, Elly Gross and others filed their complaint as third-party beneficiaries seeking recovery for breach of contract against the Initiative and against its founding companies. They alleged that the German corporations owed interest in excess of the DM 100 million already paid, based on the Initiative's financial obligation from and after July 17, *610 2000, the date the Joint Statement was signed. In July 2003, Bernard and Barbara Schwartz Lee brought a similar breach of contract action against Deutsch Bank AG and Dresdner Bank AG. They allege that the two banks agreed to pay interest earned on their payment from December 14, 1999.
These complaints were assigned to Judge Bassler. The Initiative and the defendant corporations moved to dismiss the complaints pursuant to Federal Rule of Civil Procedure 12(b)(6) and argued, in the alternative, that the claims were nonjusticiable. In a single opinion, the district court held that the claims were not justiciable. Gross I, 320 F.Supp.2d at 254. On appeal, we reversed, holding that, while the claims implicated foreign policy issues within the realm of the Executive Branch, the case was nevertheless justiciable. Gross II, 456 F.3d at 377-91. We also noted that "[a] court would face at least two questions on the merits of this dispute: (1) is the Joint Statement, or part of the Joint Statement, enforceable as a private contract, and (2) if so, what `interest' obligation, if any, did the parties intend for the German Foundation Industrial Initiative?" Id. at 387.
On remand, the cases were reassigned to Judge Debevoise. Among other motions, defendants in the Gross case moved to dismiss under Rule 12(b)(6) on the basis that the claims were not privately enforceable. Defendants in the Schwartz Lee case moved to dismiss on the basis of a lack an enforceable December 1999 contract. In a single opinion, Judge Debevoise dismissed both complaints, holding that the Joint Statement is not a contract but a political document and thus does not confer a private cause of action on the plaintiffs. Gross III, 499 F.Supp.2d at 610. Plaintiffs in both cases timely appealed on September 11, 2007.
II. Standard of Review and Jurisdiction
The district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(2).[2] We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's dismissal of the action under Federal Rule of Civil Procedure 12(b)(6). Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008); see also In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 461 (3d Cir.2000) ("De novo means [that] ... the court's inquiry is not limited to or constricted by the ... record, nor is any deference due the ... conclusion [under review]." (quotation omitted)). In our plenary review, we apply the same legal standard of determining whether a plaintiff has stated a valid claim, viz. "`a complaint with enough factual matter (taken as true) to suggest' the required element." Phillips, 515 F.3d at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). We must accept the complaint's allegations as true and draw all reasonable inferences in favor of the non-movant. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003).
Appellants ask us to determine whether the Joint Statement confers a private cause of action for their breach of contract claim. If it does, then Appellants' complaints are "a proper exercise of [their] `right ... to seek judicial relief from injuries caused by another's violation of a legal requirement.'" See McKesson Corp. v. *611 Islamic Republic of Iran, 539 F.3d 485, 488 (D.C.Cir.2008) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 730 n. 1, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (Powell, J., dissenting)). We review the interpretation of an international agreement de novo. United States ex rel. Saroop v. Garcia, 109 F.3d 165, 167 (3d Cir.1997); see also McKesson, 539 F.3d at 488; United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir. 2004) ("Interpretation of an international treaty is an issue of law subject to de novo review.").
III. Application of the Law of International Agreements
In setting forth our analysis, we reiterate that we do so only to the extent necessary to supplement the well-reasoned analysis of the district court. Below, we first confirm the district court's turn to the law of international agreements as providing the legal framework for examining the Joint Statement. Next, applying those principles, we expand on some additional points which warrant further discussion here.
A.
At the outset, Appellants contend that Judge Debevoise erred by applying treaty law as opposed to federal common law. But we do not see merit in this argument. The events leading to the Berlin Accords evince an unprecedented diplomatic effort to create an international agreement establishing a forum for the resolution of certain reparation claims and also to dispose of the pending legal actions.
As Judge Debevoise noted, "July 17, 2000, was the occasion of one of the most remarkable diplomatic achievements since the end of World War II." Gross III, 499 F.Supp.2d at 608. It was on that day that eight sovereign nations, a consortium representing numerous German companies, an international organization devoted to Nazi-era claims, and U.S. plaintiffs' attorneys together signed the Joint Statement of the Berlin Accords. Appellants cannot reasonably dispute the significant political nature of the talks leading to the Accords. Granted, one objective was to settle then-pending U.S. litigation between the plaintiffs and the defendant German companies, but we weigh that private aspect of the resolution against the Berlin Accords' political, diplomatic, and historical significance. The creation of the Berlin Accords was more than a mere settlement; it was a profound expiation by the Federal Republic of Germany and German companies. Indeed, from the start of the negotiations, Deputy Secretary Eizenstat, the lead U.S. negotiator, "was determined that the responsible foreign government [i.e., Germany], not just private companies, would have to be directly involved and directly engaged through a senior official who would be [Eizenstat's] counterpart." Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II 215 (2003).
We recognize that the Joint Statement is not a formal treaty; nevertheless, it constitutes part of the understanding reached among sovereign nations and private parties. Negotiations occurred during plenary sessions comprising high-level executives of foreign nations. The signatories of the Joint Statement itself includes the representatives of eight different nations. Further, the Joint Statement has meaning only in the context of the entire Berlin Accords. Indeed, the Joint Statement by itself is incomplete, as it talks of the Foundation, but understanding what the Foundation is requires resort to the Foundation Law. In sum, the Joint Statement appears to be a unique document, the objectives of which are to memorialize the efforts of the diplomatic talks resolving *612 both political and legal issues. Thus, for at least these reasons, we agree with the district court that the law of international agreements provides the appropriate jurisprudential guidance in the analysis of whether the Joint Statement creates a private cause of action.
B.
To ascertain whether an international agreement creates a private cause of action, we first look to the text of the agreement. See United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) ("In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning."). At the same time, however, a court has greater leeway to look beyond the words of an international agreement. See, e.g., Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) ("`[T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.'" (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 87 L.Ed. 877 (1943))). Moreover, "the public acts and proclamations of [foreign] governments, and those of their publicly recognized agents, in carrying into effect th[e] treaties, though not made its in th[e] cause, are historical and notorious facts, of which the court can take regular judicial notice." United States v. Reynes, 50 U.S. (9 How.) 127, 147-48, 13 L.Ed. 74 (1850); see also El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 167, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999).
In general, a court's "role is limited to giving effect to the intent of the [t]reaty parties." Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982). Thus, clear language controls unless it "`effects a result inconsistent with the intent or expectations of its signatories.'" Id. at 180 (quoting Maximov v. United States, 373 U.S. 49, 54, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963)). In line with this precedent, and regardless of whether we apply any presumption for or against private enforceability, our duty is to ascertain whether the signatories of the Joint Statement intended to permit a private cause of action against the German companies.
Our examination of the text of the Joint Statement and the entire Berlin Accords supports the district court's rationale and conclusion. We discern a strong intent on the part of the participants to enter into an agreement that is not enforceable through a private cause of action. First, the Joint Statement, along with the Berlin Accords as a whole, aspires to something other than simply the creation of a private, bargained-for exchange. One specific objective was to send "a conclusive, humanitarian signal, out of a sense of moral responsibility, solidarity and self-respect." Joint Statement, pmbl. ¶ 5. Another clear purpose was for the German companies to receive "all-embracing and enduring legal peace." See Executive Agreement, pmbl. ¶ 10, and arts. 2(1), 2(2), 3(1); Joint Statement, pmbl. ¶ 13, and ¶ 4(b); Foundation Law, pmbl. ¶ 6. Even without any presumptive approach, this language strongly connotes an intent not to create a right of private action for only some of the Joint Statement's participants.
Second, as the district court noted, the Joint Statement uses language that is generally consistent with a non-binding political document. The signatories of the Joint Statement refer to themselves as "participants," not as "parties." Joint Statement ¶¶ 1-4. The participants "declare" rather than "agree" or "undertake." Id. ¶ 1. The *613 title of the document itself suggests a non-binding arrangement. See Staff of S. Comm. on Foreign Relations, 106th Cong., Print No. 106-71, Treaties and Other International Agreements: The Role of the United States Senate 60 (Comm. Print 2001) ("Joint statements of intent are not binding agreements unless they meet the requirements of legally binding agreements, that is, that the parties intend to be legally bound."). Each of these textual clues points towards a document without privately enforceable rights.
It is true, as Appellants point out, that some language of the Joint Statement can be read as suggesting binding obligations. For instance, Paragraph 4(d) does use the terms "will" and "shall" when describing the steps that the German companies intend to take. Appellants argue that such language should be read as imposing legally enforceable obligations on the German companies. But these few examples cannot overcome the contrary language indicating a non-binding nature. The Joint Statement contains insufficient rights-granting language to confer on Appellants a private cause of action.
Appellants also rely too much on textual hairsplitting between "shall" and "will," as used in the Joint Statement. Specifically, Gross argues that "shall" is used with judicially enforceable acts and "will" with unenforceable acts. Thus, their argument goes, things that "will" be done are not privately enforceable, but things that "shall" be done are enforceable. We disagree with the alleged subtlety. For example, Paragraph 4(d) uses both "shall" and "will" in referring to the intended actions of the German companies: "the DM 5 billion contribution of the German companies shall be due"; "[t]he German companies will make available reasonable advanced funding"; "German company funds will continue to be collected." Joint Statement ¶ 4(d) (emphases added). The Joint Statement also uses "shall" and "will" interchangeably with the German government and the German companies. Id. ¶¶ 4(a), 4(d). Even if a clear difference in meaning exists between "shall" and "will"and we are not convinced there always is, see Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (characterizing "shall," "will," and "must" as "language of an unmistakably mandatory character")the distinction is not borne out in the Joint Statement's text.[3]
Appellants also propose that the district court erred by not severing the last sentence of Paragraph 4(d) from the rest of the Joint Statement. According to their argument, severability permits that sentence to be the grant of private enforceability. Without doubt, treaties and international agreements can include sections that are privately enforceable amidst sections not privately enforceable. See Lidas, Inc. v. United States, 238 F.3d 1076, 1080 (9th Cir.2001) (holding that the United States-France Income Tax Treaty's "exchange of information provisions ... are severable from the double taxation provisions"); United States v. Postal, 589 F.2d 862, 884 n. 35 (5th Cir.1979) ("A treaty need not be wholly self-executing or wholly executory."); see also Restatement (Third) Foreign Relations Law of the United States § 111 cmt. h (1986) ("Some provisions of an international agreement may be self-executing and others non-self-executing."). And we do not ignore these precedents. The test here is not, however, an overly formalistic application of any *614 particular doctrinal rule. Rather, our charge is to remain true to what the participants envisioned as their intended outcome, as shown through interpretative methods discussed above. In this case, the Joint Statement's language does not lend itself to the dichotomous approach urged by Appellants. Excision of a single sentence from the body of the Joint Statement, and from the entire Berlin Accords, invites departure from the participants' intentions.
At oral argument, Appellants' counsel repeated their contention that it would "have been an act of temporary insanity for experienced counsel to have agreed to dismiss sixty cases with prejudice prior to payment, without the existence of a judicially enforceable means of insuring compliance." But we think this assertion is tenuous and overstates the situation. As the district court recognized, Appellants' counsel were not dismissing the actions with only the slim hope or gamble that the German companies might proceed with their payments. Counsel dismissed the complaints, in part, because the Joint Statement had the support and backing of the governments of both the United States and the Federal Republic of Germany. Indeed, but for the actions of President Clinton and Chancellor Schroeder, it is questionable whether the negotiations would have been fruitful. See Imperfect Justice 243-58 (describing the critical involvement of President Clinton and Chancellor Schroeder during the negotiations in December 1999). Had the German companies opted to not complete their payments to the Initiative, serious political consequences and executive discomfiture would have resulted.
Moreover, despite Gross's argument to the contrary, the district court did not find that Appellants' only recourse rests exclusively with the German Ministry of Finance. The assertion runs counter to the undisputed fact that Appellants always retained the option to reopen litigation through Federal Rule of Civil Procedure 60(b). Indeed, Appellants could have utilized that procedure, but, to avoid jeopardizing the entire, politically sensitive resolution and the payment of the DM 10 billion to the victims, claimants declined to move to reopen litigation under Rule 60(b). See In re Nazi Era Cases Against German Defendants Litig., 213 F.Supp.2d 439, 442 (D.N.J.2002). Instead, they asked the court to define and enforce the defendants' "interest" obligation. On July 23, 2002, the district court declined to do so, holding that jurisdiction to enforce the Joint Statement was absent. Id. at 450-51. Appellants chose not to appeal that decision. What the district court in the present case concluded was that, given the Foundation's procedure and the option under Rule 60(b), the participants to the Joint Statement exhibited, through the text and structure of the Berlin Accords, an intent not to legally bind other participants by a contractual right enforceable through U.S. litigation. In our view, the district court correctly construed the terms of the Joint Statement and the arduous negotiations leading to the Joint Statement as manifestations of all participants' intentions to implement a non-judicial procedure for resolving further disputes.
C.
Appellants urge us to consider the litigious context in which the Joint Statement was drafted. In this context of settling class action lawsuits, Gross argues, the Joint Statement must be viewed as a quasi-settlement fashioned after a settlement agreement pursuant to Federal Rule of Civil Procedure 23. We are cognizant of the drafting environment, but we remain convinced that the manifested intentions of *615 the participants were to create a document that set forth the objectives of the negotiations without granting privately enforceable contractual rights, other than any provided by the Foundation Law. If the contextual evidence does anything, it strengthens our belief that the participants to the Joint Statement did not contemplate an agreement which would require further legal wrangling in courts.
To the extent that the district court considered the history of the Berlin Accords, we agree with the court's reliance on the general approach set forth in Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir.1985). Although Frolova concerns a formal treaty, the factors listed are just as applicable here in analyzing whether the historical context surrounding the Joint Statement evinces an intent to confer privately enforceable rights.
D.
We also briefly address Gross's position that the Supreme Court has implicitly rejected the district court's approach in assessing the private enforceability of the Joint Statement. Gross relies upon Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008), and its analysis of whether the Vienna Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes, the United Nations Charter, and the International Court of Justice Statute were self-executing treaties. In Appellants' view, Medellin does away with any presumption against self-execution of treaties.
An overly strict reliance on the concept of "self-executing" versus "non-self-executing" treaties may be misleading in this case. A self-executing treaty is one which "do[es] not require domestic legislation to give [it] the full force of law." Renkel v. United States, 456 F.3d 640, 643 (6th Cir. 2006) (citing Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984)). By itself, the status of "self-executing" does not answer the question of whether a document creates a private right of enforcement. See Restatement (Third) of Foreign Relations Law of the United States § 111 cmt. h (1986) ("Whether a treaty is self-executing is a question distinct from whether the treaty creates private rights or remedies."); see also United States v. Li, 206 F.3d 56, 68 (1st Cir.2000) (en banc) ("[T]he self-executing character of a treaty does not by itself establish that the treaty creates private rights."). Thus, even if we were faced with a treaty, Medellin's self-execution discussion does not complete the picture.
As we see it, Medellin does not undermine the district court's analysis. The Supreme Court recognized that, "[e]ven when treaties are self-executing in the sense that they create federal law, the background presumption is that `[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.'" Medellín, 128 S.Ct. at 1357 n. 3 (quoting Restatement (Third) of Foreign Relations Law of the United States § 907, cmt. a (1986)). We have agreed with this approach, see Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir.1979), as have several of our sister courts. See, e.g., United States v. Emuegbunam, 268 F.3d 377, 389-90 (6th Cir. 2001); Garza v. Lappin, 253 F.3d 918, 924 (7th Cir.2001) ("[A]s a general rule, international agreements, even those benefiting private parties, do not create private rights enforceable in domestic courts."); United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir.2001); United States v. Li, 206 F.3d 56, 60-61 (1st Cir.2000) (en *616 banc); Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.1992); Canadian Transport Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980). Thus, when determining the intent of the Joint Statement's participants, we keep in mind the accepted approach that, "[w]hen no [privately enforceable] right is explicitly stated, courts look to the treaty as a whole to determine whether it evidences an intent to provide a private right of action." Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring).
Again, we emphasize that we do not apply a strict presumption in this case. Rather, we draw from the state of international agreement law to understand better what the text of the Joint Statement teaches about the intentions of the signing participants. Being sophisticated negotiators and litigants, the participants worked not in a vacuum but in the international negotiating arena. International agreement law therefore acts as a useful judicial prism through which to view the textual evidence of the participants' intentions.
E.
Finally, we note that the issue of whether the "interest" provision is a privately enforceable contractual right can be seen from another vantage point, which we believe confirms that the dispute here is not based on a privately enforceable right. Appellants have characterized the present "interest" claim as being completely distinct from a claimant's application for restitutionary funds. Framed as such, the pending lawsuit does not appear to be asking for a larger restitutionary payment for Elly Gross or the other plaintiffs. This seems the right strategy because, if the claim were for an explicit request for a larger restitution-based payment, the case would surely fail. Such a claim would be covered exclusively by the process set forth in the Foundation Law.
When we look closer, however, and consider the potential result had Appellants been successful, the requested relief reveals itself as a request for increased restitutionary funds for Ms. Gross and the other plaintiffs. As we see it, Appellants' contention is that each plaintiff has not received the appropriate amount of money under plaintiffs' interpretation of the Joint Statement because the German companies have not paid enough "interest." We recognized as much in our prior opinion. See Gross II, 456 F.3d at 380 ("It is true that a judgment for the claimants would require payment to the Foundation, translating to increased payments to victims."). Viewing the pending suit from this perspective further confirms the district court's analysis and conclusion that the signing participants of the Joint Statement did not intend for the "interest" provision to confer a privately enforceable contractual right on only some of the signatories.
To the extent Appellants read Gross II as effectively deciding the issue before us today, that is error. The issue in Gross II was only whether the case was justiciable. Justiciability involves, for the most part, concerns of separation of powers. Nixon v. United States, 506 U.S. 224, 252-53, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (Souter, J., concurring) ("[T]he political question doctrine is `essentially a function of the separation of powers,' existing to restrain courts `from inappropriate interference in the business of the other branches of Government....'" (citation omitted) (quoting United States v. Munoz-Flores, 495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990))). The question we decide today, on the other hand, is one grounded in the intentions of the signatories to the Joint Statement. See Sumitomo, 457 U.S. at 185, 102 S.Ct. 2374 ("Our role is limited to *617 giving effect to the intent of the [t]reaty parties."). Thus, a particular claim may be justiciable, in that it is not best reserved for the Executive Branch, but may nevertheless lack a foundational cause of action because that is what the participants contemplated.
IV. Application to Schwartz Lee Plaintiffs
The Schwartz Lee Appellants dispute the propriety of applying the judgment to dismiss the Gross complaint to the Schwartz Lee complaint. They contend that the district court could not dismiss their complaint because the defendant banks in the Schwartz Lee case (i.e., Deutsche Bank AG and Dresdner Bank AG) never moved to dismiss based on the lack of a private cause of action. Rather, the Banks' motion to dismiss asserted that no enforceable contract existed between plaintiffs and defendants.
First, we note that the two Schwartz Lee plaintiffs are members of the putative class in the Gross action. Barbara Schwartz Lee and Bernard Lee both averred that they are beneficiaries of the Foundation. Schwartz Lee Compl. 4-5. The putative class in the Gross case comprises all beneficiaries of the Foundation. Gross Compl. 3. Also, the two defendant banks in Schwartz Lee are individually named as defendants in the Gross case.
Second, although docketed as separate cases, the two have proceeded as if one. In Gross I, Judge Bassler issued a single opinion that temporarily disposed of both actions. On appeal in Gross II, we reviewed that dismissal as if the two cases were a single action. Likewise, when remanded to the district court, the litigants continued on a single course with but minor differences in their "interest" calculations. Arguments for the dispositive motions were heard during a single session before Judge Debevoise on April 17, 2007.
The situation before us does not raise fairness concerns sought to be addressed by the doctrines of issue and claim preclusion. See Nat'l R.R. Passenger Corp. v. Pa. Pub. Util. Comm'n, 288 F.3d 519, 525 (3d Cir.2002) ("Th[e] general rule [of collateral estoppel] is subject to a number of equitable exceptions designed to assure that the doctrine is applied in a manner that will serve the twin goals of fairness and efficient use of private and public litigation resources."). Schwartz Lee's attorneys had notice that the Initiative moved to dismiss the complaint as privately unenforceable. Furthermore, in a letter to the district court dated November 22, 2006, counsel for plaintiffs in both Gross and Schwartz Lee presented arguments countering the Initiative's position that the Joint Statement was not privately enforceable. Counsel presented their arguments on the letterhead of Lite DePalma Greenberg & Rivas, LLC, local counsel for both sets of plaintiffs. The letter was signed by 1) Burt Neuborn, counsel for Gross plaintiffs; 2) Michael Hausfeld and Agnieszka Fryszman, counsel for Schwartz Lee plaintiffs; and 3) Allyn Z. Lite, "Plaintiffs' Liaison Counsel." The letter set forth a cogent summary of the plaintiffs' position without distinguishing between the two cases. From the district court's perspective, plaintiffs in both cases were aware of and addressed a common basis for dismissal.
Moreover, Schwartz Lee has not presented any argument or position overlooked by the district court. Thus, even if we were to vacate the district court's dismissal of the Schwartz Lee complaint, the only logical outcome after remanding would be dismissal. Accordingly, we find no error in the district court's dismissal of Schwartz Lee's complaint.
*618 V. Conclusion
For the foregoing reasons, we affirm the district court's dismissal of the complaints.
NOTES
[*] The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation.
[1] Several other cases have also detailed the history of the Berlin Accords and the reparation claims at issue here. See generally Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003); Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424 (D.N.J. 1999); Burger-Fischer v. Degussa AG, 65 F.Supp.2d 248 (D.N.J. 1999).
[2] Gross Appellants also contend that the district court had federal question jurisdiction under 28 U.S.C. § 1331, but they have not briefed the issue. Judge Bassler, held that the court had diversity jurisdiction only, see Gross I, 320 F.Supp.2d at 238-39, and we need not address the issue here.
[3] We note in passing that Schwartz Lee does not see any distinction between "shall" and "will" and considers both to be mandatory. Schwartz Lee Appeal Br. 34 ("The words `shall' and `will' indicate the binding nature of the agreement."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353982/ | 462 S.E.2d 531 (1995)
Shirley A. MORICLE, Plaintiff-Appellant,
v.
Raymond C. PILKINGTON, Charles B. Brooks, and Johnny R. Brooks, d/b/a Johnny's Plumbing Repair Service, Defendants-Appellees.
No. COA94-1291.
Court of Appeals of North Carolina.
October 3, 1995.
James F. Walker, P.A. by Daniel S. Bullard, Gibsonville, for plaintiff-appellant.
Latham, Wood, Hawkins, Whited & Dorrestein by Ronald Dorrestein, Graham, for defendant-appellee *532 Johnny R. Brooks, d/b/a Johnny's Plumbing Repair Service.
JOHNSON, Judge.
In January of 1992, plaintiff Shirley A. Moricle and her husband William F. Moricle contracted with defendant Johnny's Plumbing Repair Service for the performance of maintenance work at their residence in Gibsonville, North Carolina. Raymond C. Pilkington and Charles B. Brooks were employed by defendant Johnny's Plumbing Repair Service. On the 15th and 16th of January 1992, Raymond C. Pilkington and Charles B. Brooks were granted access to plaintiff's residence to perform maintenance work. Plaintiff informed defendant that she would not be in her residence at the time the work was to be performed. While at the premises of plaintiff, Raymond C. Pilkington and Charles B. Brooks stole a fourteen carat gold diamond tennis bracelet belonging to plaintiff and converted the bracelet to their own use.
On 28 January 1992, defendant Raymond Pilkington was interviewed by Officer Gary L. Felts and Chief Morris D. McPherson, Chief of Police of Gibsonville, North Carolina. During the course of the interview, defendant Raymond Pilkington stated that on numerous occasions, he would stand watch while defendant Charles Brooks stole items from the residence in which they were working. Defendant Raymond Pilkington further stated that defendant Charles Brooks "got some stuff off the truck from Johnny's."
On 29 January 1992, defendant Charles Brooks was interviewed by Officer G.L. Felts, at which time Charles Brooks stated that defendant Raymond Pilkington used crack cocaine and had a drug problem. He stated that one could look at Raymond Pilkington's appearance and tell that he had "gone down hill." Defendant Charles Brooks further stated that defendant Raymond Pilkington owed Gordan Oliver a large amount of money for rent and that defendant Raymond Pilkington also owed Johnny Brooks for a truck payment. Defendant Charles Brooks further stated that, "I would think he [defendant Pilkington] has probably got (sic) a crack bill somewhere."
On 12 February 1992, defendant Raymond C. Pilkington was interviewed by Officer Gary L. Felts of the Gibsonville Police Department and Chief Dan Ingle of the Elon College Police Department. Raymond Pilkington admitted that he, along with Charles Brooks, had stolen a gold bracelet from the home of plaintiff. Raymond Pilkington further stated that during the six (6) months in which defendant Pilkington worked for Johnny's Plumbing Repair Service, Charles Brooks had been stealing items from the homes in which he worked for the entirety of the six (6) months in which they worked.
Defendant Raymond Pilkington subsequently pled guilty to the crime of misdemeanor larceny and received a two year sentence, suspended for five years. The charges against defendant Charles Brooks were subsequently dismissed. The Assistant District Attorney stated that the charges were dismissed because the only evidence against defendant Charles Brooks was "testimony of [a] co-defendant who pled guilty to larceny from [the] same victim" and she further stated that co-defendant Raymond Pilkington, was in jail in another state at that time. Defendant Charles Brooks was subsequently charged with first degree burglary in an unrelated offense and pled guilty to the lesser included offense of misdemeanor breaking and entering.
Defendant Johnny R. Brooks, the owner and operator of Johnny's Plumbing Repair Service, stated in an affidavit that he employed Charles B. Brooks from 25 July 1989 until 9 October 1992. Defendant Johnny Brooks stated that Charles B. Brooks is his nephew and defendant Johnny Brooks did not check his criminal record prior to the larceny from plaintiff on 15 January 1992. He stated that he had lived in the same general area as Charles Brooks and he had known him "since his birth." Defendant Johnny Brooks also did not conduct a criminal record check for Raymond Pilkington. He did, however, submit an affidavit showing that he had called a former employer of Raymond Pilkington to inquire about his work record. Charles Brooks did, in fact, have a criminal record and had been convicted of assault and battery in 1989. Defendant *533 Raymond Pilkington had prior convictions for harassing telephone calls, possession of an unsealed container of alcohol and traffic offenses. Johnny Brooks further stated in the affidavit that he had no knowledge "of any wrong-doing on the part of Charles Brooks and Raymond Pilkington during the time they were employed by [his] firm until after January 15, 1992."
Plaintiff filed this action alleging that defendant Raymond C. Pilkington and defendant Charles B. Brooks had removed a fourteen carat gold diamond tennis bracelet from her home. Additional claims of negligent retention and supervision and negligent hiring were alleged against the employer, defendant Johnny R. Brooks d/b/a Johnny's Plumbing Repair Service. On 26 August 1994, defendant Johnny's Plumbing Repair Service filed a motion for summary judgment which was granted. Plaintiff appeals.
Plaintiff submits one assignment of error. She alleges that the trial court committed reversible error in granting defendant's motion for summary judgment, on the ground that there was no genuine issue of material fact, and defendant was entitled to judgment as a matter of law.
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Rule 56(c). "[I]ts purpose is to eliminate formal trials where only questions of law are involved." Medlin v. Bass, 327 N.C. 587, 590, 398 S.E.2d 460, 462 (1990) (quoting Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)).
Plaintiff argues that a genuine issue of material fact exists with respect to the negligent hiring, supervision and retention in the instant case. A claim for negligent hiring, supervision and retention is recognized in North Carolina when plaintiff proves:
(1) the specific negligent act on which the action is founded ... (2) incompetency, by inherent unfitness or previous specific acts of negligence, from which incompetency may be inferred; and (3) either actual notice to the master of such unfitness or bad habits, or constructive notice, by showing that the master could have known the facts had he used ordinary care in "oversight and supervision," ...; and (4) that the injury complained of resulted from the incompetency proved.
Medlin, 327 N.C. at 591, 398 S.E.2d at 462 (quoting Walters v. Lumber Co., 163 N.C. 536, 541, 80 S.E. 49, 51 (1913) (quoting Shearman & Redfield on Negligence § 190 (6th ed. 1913)).
The evidence presented before the trial court showed: that defendant followed hiring practices that are customary among other plumbing companies; that Brooks is defendant's nephew and defendant has known Brooks since Brooks was a child, and defendant had no reason to believe Brooks was unfit or incompetent to work for defendant; that defendant conducted a personal interview with Pilkington during which he inquired into Pilkington's criminal record; that Pilkington assured defendant that he did not have a record; that defendant did a reference check on Pilkington with W.P. Rose of W.P. Rose Plumbing, a licensed plumber whom defendant personally had known for years and knows to be a reputable plumber; and that W.P. Rose informed defendant that during the two years Pilkington worked for him that he did not receive any complaints concerning Pilkington's work or conduct.
This forecast of evidence does not show that defendant knew or reasonably could have known that Brooks or Pilkington was dishonest. Thus, an essential element of the claim for negligent hiring or retention is absent. See Medlin, 327 N.C. 587, 398 S.E.2d 460. Therefore, summary judgment was proper.
There is nothing in the background of either man which should have put defendant on notice that either of them were unfit for the job. Further, even though Brooks and Pilkington had criminal records, neither record is indicative that Brooks and Pilkington would engage in larceny.
*534 Defendant was under no duty to do a criminal background check when hiring his employees. Stanley v. Brooks, 112 N.C.App. 609, 436 S.E.2d 272 (1993), disc. review denied, 335 N.C. 772, 442 S.E.2d 521 (1994). Further, there is a presumption which exists that an employer uses due care in hiring its employees. Id.; Pleasants v. Barnes, 221 N.C. 173, 19 S.E.2d 627 (1942). In addition, plaintiff has the burden of showing that the employer did not use due care or that the employer had actual or constructive knowledge of the employee's unfitness for the job. Id. Plaintiff argues that defendant should have been able to tell from defendant Pilkington's appearance that Pilkington was in debt and in need of money, in that Pilkington owed defendant for a truck payment and rent. This argument is without merit and does not involve a genuine issue of material fact which would warrant disturbing the trial court's grant of summary judgment for defendant.
For all of the foregoing reasons, the decision of the trial court granting summary judgment for defendant is affirmed.
Affirmed.
ARNOLD, C.J., and MARTIN, MARK M., J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354422/ | 267 S.C. 107 (1976)
226 S.E.2d 253
Charlie M. HATCHER et al., Respondents,
v.
SOUTH CAROLINA DISTRICT COUNCIL OF the ASSEMBLIES OF GOD, INC., et al., Appellants.
20250
Supreme Court of South Carolina.
June 24, 1976.
*108 Messrs. Hyman, Morgan & Brown, of Florence, for Appellants.
*109 E.N. Zeigler, of Florence, for Respondents.
June 24, 1976.
RHODES, Justice:
This class action was instituted by plaintiffs-respondents seeking declaratory and injunctive relief against defendant-appellant, the South Carolina District Council of the Assemblies of God, Inc., and others. Plaintiffs sought, for themselves and those similarly situated, to be declared members *110 of the Dillon Assembly of God Church and either the legal or the equitable owners of the Church property. The lower court declared the congregation of the Dillon Church to be the equitable owners of the property and certain plaintiffs to be members of the congregation and granted to them other related relief. We affirm.
The South Carolina District Council of the Assemblies of God, Inc., is an integral part of the General Council of the Assemblies of God, Inc. located in Springfield, Missouri, and is the highest ecclesiastical authority for individual Assembly of God churches in South Carolina. Immediately below the District Council level is the District Presbytery which has general, statewide oversight of church affairs during the interim between the annual sessions of the Council. South Carolina is divided into eight geographical sections and each section is headed by a Sectional Presbyter.
The Council's chief executive officer is the District Superintendent who is also a member and the presiding officer of the District Presbytery. Sectional Presbyters are also members of the District Presbytery. At the time of this action, the Rev. W.G. Dixon was the District Superintendent and the Rev. A.L. Dutton was the Sectional Presbyter for the section in which the Dillon Church is located.
According to the Constitution of the District Council, individual churches are classified into two categories, dependent and sovereign. Generally, dependent churches are congregations which are newly organized and still in the formative state, and have very little autonomy. They are under the general supervision of the District Presbytery until they have "matured sufficiently to accept their full share of responsibility for the maintenance of Scriptural order." Article XI of the Council's Constitution. Sovereign churches have the right to choose their own pastors, elect officers, own property, discipline members, and transact other business pertaining to its life as a local church.
*111 The Dillon Church was organized in March of 1970 as a dependent church and held its initial service in a rented store building. Two years later, the Church held its first service in its present, permanent place of worship, title to which was taken in the name of the District Council as required by its Constitution.
In the course of construction of the present Church properties, certain of the named plaintiffs donated considerable amounts of cash, time, and labor. It is clear that the initiative for the acquisition of the land on which the Church buildings were built and the construction of these buildings is attributable to the then local congregation of the Church and principally by persons who are plaintiffs herein. The only contribution made by the District Council was a donation of $1,000.
The lower court imposed a trust on all the Church property in favor of the congregation of the Dillon Church. No appeal was taken from this portion of the lower court's order.
A year after the Dillon Church was organized, it employed, with the District Presbytery's approval, the Rev. Steven Allen to be its pastor. On February 3, 1972, the congregation voted to give Rev. Allen a two year term as minister. However, during the next few months the members of the Church became dissatisfied with Allen and requested his resignation. He refused to resign and on January 15, 1973, the congregation voted to reduce his term as pastor to one year.
The following day Rev. Dixon and Rev. Dutton met with the leaders of the Dillon Church and were informed of the action taken by the members. Rev. Dixon then announced that he was taking over the supervision of the Church until the District Presbytery could review the matter. The next day the locks on the doors of the Church buildings were changed by action of the District Council.
*112 On January 29, 1973, the members of the Dillon Church were given a copy of a resolution, adopted by the District Presbytery, which vacated all offices of the Church and dissolved its membership. There were twelve or thirteen members of the Church at the time. The resolution specified the following reasons for the action taken: (1) inability to maintain Scriptural order; (2) improper conduction of business affairs; and (3) bringing reproach upon the Assemblies of God by being in a state of confusion.
The expelled members presented a petition to Rev. Dixon on February 7, 1973, requesting a review and rescission of the action of the Presbytery. The petition contained detailed reasons for the requested relief and asked that the expelled members be allowed to appear and be heard at the consideration of the petition. On March 20, 1973, the petitioners were notified that the Presbytery would grant them a hearing on their petition only if they agreed to pay $200 in advance and send only three persons to the hearing. The expelled members refused to agree to these conditions and began conducting religious services elsewhere.
The present action was instituted in July of 1973 by eleven of the expelled members and several others who had joined them in their services. Plaintiffs alleged in their complaint that the District Council wrongfully and in violation of its Constitution and By-Laws dissolved the membership roll of the Dillon Church and declared all offices vacant. They asked the lower court to declare them members of the congregation of the Dillon Church and to restrain the District Council from interfering with their use and occupancy of the Church property.
The joint answer of the defendants denied the material allegations of the complaint and alleged that the actions of the District Council were authorized by its Constitution and By-Laws. The matter was referred to a special master who heard voluminous testimony and filed a lengthy report containing his findings and recommendations. His report was confirmed in all particulars by the lower court.
*113 The lower court and the master found the action of the District Council in dissolving the membership roll of the Dillon Church and vacating its officers to be arbitrary.[1] The Council was ordered by the lower court to reinstate the expelled members as members of the congregation of the Dillon Church, and to allow the congregation to conduct the business affairs of the Church in the same manner as was permitted by the Council before January 16, 1973. The lower court refused to issue an injunction but retained jurisdiction of the action reserving authority to issue supplemental orders if necessary.
The first issue raised is whether the lower court had the authority to review the action of the District Presbytery. One of the leading South Carolina cases on the subject of the proper scope of review by civil courts of ecclesiastical decisions is Turbeville v. Morris, 203 S.C. 287, 26 S.E. (2d) 821 (1943). In Turbeville, one of the principal cases relied upon for determining the authority of civil courts in this area was Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131 (1929).
In Gonzalez Gonzalez claimed the right of appointment to a chaplaincy in the Roman Catholic Church under a will which provided that a member of his family receive the appointment and provided funds for the chaplaincy. The Roman Catholic Archbishop of Manila refused to appoint Gonzalez on the ground that he did not satisfy the qualifications established by Canon Law for that office. Gonzalez brought suit in the Court of First Instance of Manila for a judgment directing the Archbishop to appoint him chaplain. The trial court entered such an order but the Supreme Court of the Philippine Islands reversed and "absolved the archbishop from the complaint." Mr. Justice Brandeis defined the civil court role in the following words:
*114 "In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise." Gonzalez v. Roman Catholic Archbishop of Manila, supra.
The scope of review was delineated in Turbeville as follows:
"While not inquiring into the wisdom or correctness of ecclesiastical decisions, the Court will make sure that the civil right is in fact dependent upon an acclesiastical matter; it will determine whether the ecclesiastical body had jurisdiction; it will look to see if the steps required by the religious society have been taken; and will inquire into any charges of fraud, collusion, or arbitrariness. It will go no further."
In Presbyterian Ch. v. Mary Elizabeth Blue Hull Mem. Pres. Ch., 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed. (2d) 658 (1969), the United States Supreme Court commented on the decision in Gonzalez as follows:
"It was the archbishopric, not the civil courts, which had the task of analyzing and interpreting church law in order to determine the validity of Gonzalez' claim to a chaplaincy. Thus, the civil courts could adjudicate the rights under the will without interpreting or weighing church doctrine but simply by engaging in the narrowest kind of review of a specific church decision i. e., whether that decision resulted from fraud, collusion, or arbitrariness. Such review does not inject the civil courts into substantive ecclesiastical matters."
It appears from these decisions that a purely ecclesiastical matter is to be determined by church tribunals alone; that matters purely of property rights by the civil courts alone; that the civil courts, in considering a property right which is dependent upon an ecclesiastical matter, will accept as conclusive the decision of a legally constituted ecclesiastical tribunal having jurisdiction *115 of the matter absent fraud, collusion, or arbitrariness; that in reviewing a specific church decision for proof of fraud, collusion, or arbitrariness, the civil court will not inject itself into substantive ecclesiastical matters.
Our first inquiry, therefore, is whether there is a property right of plaintiffs which was affected by the action of the District Presbytery in dissolving the entire membership of the Dillon Church. The lower court held that title to the local Church property was in the District Council subject to a trust in favor of the local congregation, and that legal title to the property was to be conveyed to the congregation upon the Church attaining the status of a sovereign church. The expelled members were, thus, foreclosed of any right as beneficiaries of the trust by the action of the Presbytery when it ousted them as members of the Congregation of the Dillon Church.
As stated in Adickes v. Adkins, 264 S.C. 394, 215 S.E. (2d) 442 (1975): "By a determination of this case, this Court exercises no role in determining ecclesiastical questions. We merely settle a dispute on the question of identity, which in turn necessarily settles a dispute involving the control of property." Likewise, it becomes necessary in this case to determine the identity of the Dillon Church membership in that this Class has been decreed the beneficiaries of the Church property. Thus, the lower court had the authority to review the action of the District Presbytery to determine whether it resulted from fraud, collusion, or arbitrariness. Turbeville v. Morris, supra.
The finding by the special master that the action of the District Presbytery was arbitrary was concurred in by the lower court. The nature of this action is equitable and the concurrent finding of arbitrariness "will not be disturbed on appeal unless found to be without evidentiary support or against the clear preponderance of the evidence." Townes Assoc., Ltd. v. City of Greenville, S.C., 221 S.E. (2d) 773 (1976).
*116 After members of the Dillon Church had initially expressed their dissatisfaction with Rev. Allen to Rev. Dixon and Rev. Dutton, Dutton purported to make an investigation of the matter which was at best cursory and superficial. After being requested to resign, Allen telephoned Dutton who told him that he could not be forced to resign by the Church because it was not a sovereign church and recommended that he not resign.
Furthermore, during the lengthy January 16th meeting, Rev. Dixon did not look at the minutes of the meeting of the previous night when the members of the Church had unanimously voted to reduce Rev. Allen's term of office. He had not looked at them at the time of the hearing before the master. Although the January 16th meeting was recorded, neither the transcript of it nor the minutes of the January 15th meeting was introduced into evidence.
With respect to the specific grounds given for the District Presbytery's action, Rev. Dixon and Rev. Dutton were unable to give more than vague explanations for any of them. There was no proof of the failure of the expelled members to maintain the biblical scriptures, the tenets of faith of the organization, or any other aspect of scriptural matters. When asked if there was any departure from the tenets of faith by the members, Dixon responded: "I do not know any I could point to right at this minute."
The testimony of Rev. Dixon and Rev. Dutton reveals that the charge of "inability to maintain Scriptural order" was predicated solely on the expelled members' reluctance to agree with the desire of District officials that Rev. Allen be retained as minister of the Dillon Church. No substantive ecclesiastical matter was involved in this charge.
The charge of "improper conduction of business affairs" was predicated on the contention that the expelled members' meeting on January 15th was held without adequate notice. The meeting was announced the previous day during the Church service and was attended by all the members except *117 for one person. Moreover, the Dillon Church had not adopted a Constitution or By-Laws prescribing the type of notice required to call a meeting. The Council's Constitution and By-Laws do not contain a specific provision providing for the method of calling meetings in a dependent church.
The charge of "bringing reproach upon the Assemblies of God by being in a state of confusion" is nebulous in nature and is not supported by any evidence other than that relating to the other two charges.
The authority for the action of the District Council in dissolving the Church membership is not specifically granted in either the Constitution or By-Laws of the Council. Moreover, there was no prior written authority for the $200 charge imposed as a condition for a hearing before the District Presbytery.
In Turbeville v. Morris, supra, this Court stated that:
"`Arbitrary' means based alone upon one's will, and not upon any course of reasoning and exercise of judgment; bound by no law; done capriciously or at pleasure, without adequate determining principle, nonrational; not governed by any fixed rules or standard."
We are of the opinion that the concurrent finding of arbitrariness by the master and lower court is supported by the record. The lower court, therefore, properly ordered the District Council to restore to membership the expelled members of the Dillon Church. The additional relief ordered by the lower court was necessary and proper to restore all the rights and privileges exercised by the expelled members as members of the congregation prior to the arbitrary action of the District Council.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.
NOTES
[1] While the master and lower court also characterized the Council's action as being collusive and contrary to law, the finding of arbitrariness is sufficient to support the conclusion reached and our consideration will be confined to this single finding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353119/ | 498 P.2d 1119 (1972)
Edwin W. HAYES et al., Plaintiffs in Error,
v.
STATE of Colorado et al., Defendants in Error.
No. 24570.
Supreme Court of Colorado, En Banc.
June 12, 1972.
Rehearing Denied July 24, 1972.
*1120 Saunders, Dickson, Snyder & Ross, P. C., Glen G. Saunders, John M. Dickson, Denver, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Asst. Atty. Gen., Ben L. Wright, Jr., James D. Geissinger, Special Asst. Attys. Gen., Denver, for defendants in error State of Colo., Ground Water Comm. of the State of Colo., and Clarence J. Kuiper, individually and as the State Engineer of the State of Colo.
George W. Woodard, Alamosa, for defendants in error Squirrel Creek-Ellicott Water Asst., T. R. Schubert, Everett Handle, and Frances Guthrie.
DAY, Justice.
On May 1, 1968, the Colorado Ground Water Commission entered an order designating a 350 square mile area in east central El Paso County as a ground water basin pursuant to 1965 Perm.Supp., C.R.S. 1963, 148-18-5. Appellants own wells and decreed water rights within the area and protested its designation as a ground water basin as defined in 1965 Perm.Supp., C.R.S.1963, 148-18-2(3).
Being unsuccessful before the Water Commission, the protestants appealed to the district court, and a de novo hearing was held pursuant to 1965 Perm.Supp., C.R.S.1963, XXX-XX-XX. The lower court upheld the designation by the Commission. We affirm.
At oral argument of this case, counsel for appellants admitted that, in reality, there was only one issue to be resolved by this court, namely, whether there was evidence to support the finding made by the lower court in pertinent part as follows:
"The Court finds and determines from the evidence adduced before the Ground Water Commission and the testimony and exhibits at the trial in this court clearly [sic] establish [1] that the ground water herein involved in its natural course would not be available to and required for the fulfillment of decreed surface rights; [2] that such ground water is not adjacent to a continuously flowing natural stream wherein ground water withdrawals have constituted the principal water useage [sic] for at least fifteen years preceding January 1, 1965, * * *."
The general rule is that the evidence will be viewed by this court in the light most favorable to upholding the judgment. Considerations of credibility of witnesses and the weight to be accorded their testimony are for the trial court. With *1121 these principles in mind, if there is any evidence to support a lower court finding, it will be upheld. See Bennett v. Accounts, Inc., 155 Colo. 461, 395 P.2d 225. In the instant case, there is such evidence.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353118/ | 117 Ga. App. 829 (1968)
162 S.E.2d 240
SHERMAN STUBBS REALTY & INSURANCE, INC.
v.
AMERICAN INSTITUTE OF MARKETING SYSTEMS, INC.
43548.
Court of Appeals of Georgia.
Submitted April 3, 1968.
Decided May 15, 1968.
Rehearing Denied June 5, 1968.
Payne, Barlow & Green, William O. Green, Jr., for appellant.
Lipshutz, Macey, Zusmann & Sikes, John M. Sikes, Jr., for appellee.
PANNELL, Judge.
The American Institute of Marketing Systems, Inc., brought an action against Sherman Stubbs Realty *830 & Insurance Company, Inc., in two counts. The first count sought recovery on a promissory note in the amount of $350 plus interest and attorney's fees. Count 2 sought recovery of $636 plus interest based upon breach of contract for failure to purchase certain items which the defendant allegedly had agreed to purchase under the contract. A copy of the note sued upon, a contract, and a notice of attorney's fees was attached to the petition. The petition as amended alleged that the plaintiff corporation was not doing business in the State of Georgia and was not qualified to do business in the State of Georgia. The defendant filed certain general demurrers and special demurrers to the petition as a whole and to the first and second counts separately. The trial judge overruled the general demurrers to the petition as a whole and to Count 1 of the petition and refused to pass upon the other demurrers on the ground that under the Civil Practice Act it was not necessary that the court pass upon the same. The defendant appeals this ruling and enumerates as error the overruling of the general demurrers to the petition as a whole and to Count 1, and also enumerates as error refusal to pass upon the other demurrers, among which was a general demurrer to Count 2 of the petition. The general demurrers argued raised the question of whether or not a foreign corporation which enters into a contract and does business in this state is precluded from recovery upon such contract because of a failure to comply with Section 1 of the Act approved January 31, 1946 (Ga. L. 1946, p. 687; Code Ann. § 22-1506). Held:
1. Whether we pass on the general demurrers as such, or treat them as motions to dismiss for failure to state a claim upon which relief can be granted (see Section 81A-112 (b) (6) of the Civil Practice Act (Ga. L. 1966, pp. 609, 622)), the result is the same.
The title to the Act approved January 31, 1946 (Ga. L. 1946, p. 687) states that it is "An Act to prescribe certain terms and conditions upon which foreign corporations may do business in this State; to provide for filing of copy of charter thereof with the Secretary of State and the designation of an agent for service of notice and process by such corporation with provisions for service in cases where no agent upon whom service can be made [is] designated; to provide penalties and for other purposes." Section 1 of that Act (Code Ann. § 22-1506) provides: "Any foreign corporation, not domesticated *831 in this State, before commencing to do business in this State, shall file in the office of the Secretary of State a copy of its charter and all amendments thereto, duly exemplified by the proper officer of the State in which such corporation is incorporated; and any foreign corporation, not domesticated as aforesaid, now doing business in this State, which shall continue to do business in this State on or before July 1, 1946, shall likewise file, in said Secretary's office an exemplified copy of its charter and all amendments thereto. Upon filing such copy of its charter the corporation shall pay to the Secretary of State a fee of $10 in addition to all other taxes now or hereafter provided for by law. Any such corporation failing to comply with the provisions of this section of this Act shall be penalized by the Secretary of State in the amount of $100; and the Secretary of State shall be authorized to sue, in the name of the State, by any appropriate action, including attachment or garnishment, or both, in any court of this State, to recover said penalty; but upon its being made to appear to the Secretary of State that the failure to comply with these requirements was not wilful or with intent to avoid these requirements, the Secretary of State, upon the corporation complying with the requirements, may remit the penalty in whole or in part." The Act provides for an express penalty to be imposed upon the foreign corporation coming within the terms of the Act which does not comply therewith. The question is, does a failure to comply prevent the foreign corporations from suing upon the contract resulting from business done in this state. In our opinion it does not. While similar Acts in other states have received varying interpretations, and different results have been reached because of other underlying rules of law in the particular state as applied to the statute (see 20 CJS 70, Corporations § 1847; 26 Ga. B. J. 157, 164), we do not think those reaching a different result are controlling here. Acts involving restrictions on trade or common operations, etc., are to be strictly construed. Mayor &c. of Savannah v. Hartridge, 8 Ga. 23 (5); Felton v. City of Atlanta, 4 Ga. App. 183 (1) (61 S.E. 27). This rule, coupled with the rule that in construing statutes expressio unius est exclusio alterius (Bailey v. Lumpkin, 1 Ga. 392, 403), leads us to the conclusion that there was no legislative intent to impose any additional penalties, and, in the absence of general law providing such penalties, that the plaintiff in this *832 case had a right to sue upon the contract here involved, as well as the note given incident thereto. The trial court did not err in overruling the demurrers passed upon.
2. Demurrers, as such, including special demurrers, were abolished by the Civil Practice Act, effective September 1, 1967, and the trial court did not err in so holding. Willis v. Hill, 116 Ga. App. 848 (159 SE2d 145).
Assuming that the failure to rule upon the general demurrer to Count 2, treating it as a motion to dismiss, may have been error, it is a harmless error, as the second count was not subject to the demurrer as ruled in Division 1.
None of the special demurrers could be construed as a motion for a more definite statement under Section 81A-112 (e) of the Civil Practice Act (Ga. L. 1966, pp. 609, 622), or if they could be, they were not sufficiently definite themselves, or, if sufficient, they were without merit.
3. Accordingly, the judgment must be affirmed.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.
ON MOTION FOR REHEARING.
On motion for rehearing, sought as to the ruling in Division 1 of the opinion, the appellant called our attention for the first time to Code § 22-1501, which reads as follows: "Corporations created by other states or foreign governments shall be recognized in the courts of this state only by comity, and so long as the same comity is extended in the courts of such other states or foreign governments to corporations created by this state." Appellant contends that this Code section requires a different result because the petition shows the plaintiff is a Missouri corporation and that a similar statute in Missouri provides that: "no foreign corporation, failing to comply with this chapter, (requiring registration of foreign corporations) can maintain any suit or action, either legal or equitable, in any of the courts of *833 this state, upon any demand, whether arising out of the contract or tort, while the requirements of this chapter have not been complied with." The motion for rehearing quotes this law of Missouri and gives a citation thereto.
Whether or not this legal contention to the effect that the use of the courts of this state should be denied a Missouri corporation doing business in this state without complying with the statutes of this state because Missouri, under similar conditions, bars a suit in the courts in that state to a Georgia corporation be a correct one, the principle, if correct, cannot be applied in the present state of the record here. First, the petition does not affirmatively show that the corporation has done or is doing business in this state. By amendment this is expressly denied. The note and contract sued upon in the respective counts of the petition and attached to the exhibits do not show that they were executed in this state or that any business was done in this state pursuant thereto. Secondly, even if we assume for the purpose of argument that the petition shows the corporation did do business in this state (as we did for the original ruling in construing our state statute), this court cannot take judicial cognizance of the law of Missouri on demurrer to a petition where the petition does not affirmatively disclose such law. While three methods of proof of foreign law have been recognized, among which is judicial recognition (Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446, 456 (58 S.E. 93)), the judicial notice or recognition of such laws will not occur unless the laws of the sister state are produced to the court "as published by authority." Hamilton v. Metropolitan Life Ins. Co., 71 Ga. App. 784, 790 (32 SE2d 540). When this is done, no further proof is necessary. See also Alropa Corp. v. Pomerance, 190 Ga. 1 (1a) (8 SE2d 62); Decatur County v. Tampa Wholesale Liquor Co., 62 Ga. App. 716, 717 (9 SE2d 701). The appellant's remedy is not by demurrer.
Judgment adhered to on rehearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353108/ | 209 Va. 178 (1968)
LOREN NEAL DUFFIELD
v.
C. C. PAYTON, SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY.
Record No. 6869.
Supreme Court of Virginia.
September 6, 1968.
Present, Eggleston, C.J., Buchanan, Snead, Carrico, Gordon and Harrison, JJ.
1. Detectives without search warrant went to defendant's home and after preliminary questions were invited to enter, remaining in the living room. When asked if she knew what clothing her husband had worn the previous day, defendant's wife voluntarily left the room and without request returned with clothing. No search involved. No intimidation or trickery and no illegal search and seizure.
2. Although defendant testified that he was not advised of right to counsel, there was ample evidence that he was so advised and that his confession was voluntary under the test applicable at the time of his trial. No error to admit confession in evidence.
3. Preliminary hearing in Virginia is procedural not jurisdictional, and is not a critical stage of proceeding which would require the benefit of counsel even though the potential penalty is death for the offense involved.
4. Defendant represented at his trial by able attorney experienced in trying appointed cases. Record indicated that counsel investigated the charge, had numerous conferences with members of defendant's family, employed an independent psychiatrist and planned a careful defense. Failure to explain to defendant his right to appeal does not amount to denial of effective representation since defendant repeatedly indicated that he did not want to appeal.
5. On day sentence was announced appointed counsel wrote a letter to defendant's parents with copy to defendant, his wife and his brother, stating that appointed counsel's services were concluded and that it was necessary to employ private counsel for an appeal. While in this case counsel did not have a duty to inform defendant of right to appeal, counsel did have duty not to misinform him. Since it was not necessary for defendant, an indigent, to employ private counsel in order to effect his appeal, order denying and dismissing petition for habeas corpus vacated and case remanded for further proceedings or release from custody.
Error to a judgment of the Corporation Court of the City of Norfolk. Hon. Linwood B. Tabb, judge presiding.
O. Eugene Pinion for plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for defendant in error.
SNEAD
SNEAD, J., delivered the opinion of the court.
Loren Neal Duffield, petitioner, appealed from an order of the Corporation Court of the City of Norfolk entered September 29, 1966 wherein his petition for a writ of habeas corpus ad subjiciendum filed against C. C. Peyton, Superintendent of the Virginia State Penitentiary, respondent, was denied and dismissed after a plenary hearing had on June 7, 1966.
Duffield was and is now being detained by respondent pursuant to a judgment order of the Corporation Court of the City of Norfolk entered January 7, 1964 which, in accordance with the jury verdict, sentenced him to death on a conviction of murder in the first degree.
Duffield makes five assignments of error. He contends that the court erred in holding: (1) that certain evidence introduced by the Commonwealth at the original trial was admissible and had not been obtained as a result of an unlawful search and seizure; (2) that his confession was voluntary; (3) that his constitutional rights were not violated when he was not afforded counsel at the preliminary hearing; (4) that he had not been denied effective assistance of counsel, and (5) that he was not denied the right of appeal.
The evidence discloses that on the night of March 4, 1963, Duffield, then age 23, made a false report to the Norfolk police stating that he had been robbed. He testified that he did so because he was "trying to explain scratches on my face." The next day Detectives Mario Asaro and William Cherry investigated a report that Gwendolyn *180 Padgett, age 14, had failed to return home from a babysitting engagement on the evening of March 4 and was a missing person. At approximately 4 p.m. on March 5 the officers went to Duffield's home without a search warrant. They identified themselves as police officers to Mrs. Duffield, petitioner's wife, and told her that they wanted to ask Duffield "'a few questions about what happened last night'". Upon being advised that her husband was not at home but expected shortly, the officers asked if they could wait for him. At Mrs. Duffield's invitation the officers entered the premises and remained in the living room. She was asked whether she knew what Duffield wore on the previous day, whereupon she left the room alone and returned with a pair of blue trousers and a white T-shirt belonging to Duffield. According to Detective Asaro, she was not requested to produce them.
Duffield arrived home from work about 4:30 p.m. The officers met him in the front yard, identified themselves, and told him that they would like "'to talk with him downtown about what happened last night'". Duffield testified that the officers had the trousers and T-shirt in their possession at the time they met him. However, both officers stated that they were left on the settee in the living room. Duffield admitted to the officers that the clothing belonged to him. He was asked if he had any objection to its being taken to police headquarters and he replied that he had none. He also agreed to drive his own car to headquarters so that he would have "a way back". Detective Asaro accompanied him, and Detective Cherry followed in the police car.
Upon arrival at police headquarters around 5 p.m. Duffield consented to being placed in a line-up. Major Padgett, the victim's brother, who had accompanied his sister to the car which was to take her to the home where she was to baby sit, was not sure Duffield was the person to whom she was delivered. Duffield was then asked to put on the trousers and T-shirt that were brought from his home to the police station. He agreed to do so, and when Major Padgett walked in the room he identified Duffield as the man who "'took my sister'". At the time the police were not aware of the fact that Gwendolyn Padgett had been raped and murdered.
Following this identification, Duffield testified that he was questioned by several police officers who used "harsh tones"; that one of them "shook his fist in my face"; that later he was taken into another room where Detective C. F. Sanders, Jr. talked to him alone. He *181 said that Sanders "treated me in a very kind way, just like a father, and he talked to me in a nice tone, and I admitted the crime to him". (Murder and rape.) He further stated that prior to his confession he was not advised by anyone of his right to have counsel.
Detective Sanders testified that no one shook his fist at Duffield; that he was advised of his right to have counsel present, to remain silent, and to use the telephone if he so desired; that Duffield was then asked "'where he had taken the girl?', and he thought for approximately three or four minutes at the most, and at that time he hung his head down, and said 'all right, I'll take you to where she is'". Duffield then rode with and directed the police officer to the spot where he had hidden the body of Gwendolyn Padgett. Upon their return to police headquarters he signed a confession stating that he had raped and murdered Gwendolyn Padgett. Thereafter, warrants were issued and served upon Duffield charging him with the crimes of rape, murder and grand larceny.
A preliminary hearing was had the next day, March 6. Duffield said that he waived the preliminary hearing on the advice of Captain (now Inspector) Charles D. Grant. However, Grant testified that he gave Duffield no advice concerning a waiver of his preliminary hearing. On April 1, the grand jury returned indictments charging Duffield with, among other offenses, murder.
Prior thereto, on March 16, the trial judge requested William H. Sands, an attorney, to accept appointment as Duffield's counsel. Sands told the judge that he would like to have an opportunity to check into the case before accepting. On the same day he conferred with Duffield, who was in the city jail, for more than an hour. Later he had conferences with Duffield's parents, his wife and brother. Sands was instrumental in having Dr. Robert H. Thrasher, a psychiatrist, examine Duffield. After Sands received Dr. Thrasher's report he moved the court on April 3 to commit Duffield to the Southwestern State Hospital at Marion for mental observation. The record is not clear as to the exact date Sands was formally appointed as counsel for Duffield, but it does show that it was prior to the time the motion to commit was made and granted.
The Superintendent and the Clinical Director of the hospital reported to the court by letter, dated June 4, 1963 that Duffield had not been psychotic or insane since his admission; that he was mentally competent to testify in his own defense, and that based upon the history obtained and their examination he was mentally capable of *182 knowing right from wrong on March 4, the date Gwendolyn Padgett was murdered.
At the trial on the indictment charging murder, which commenced on September 25, Duffield pleaded not guilty by reason of insanity. According to Sands, it was Duffield's desire to enter such a plea, to be tried by a jury, and not to testify. After the jury returned a verdict finding him guilty of murder in the first degree and fixing his punishment at death, Sands, Duffield's court-appointed attorney, moved to set the verdict aside and grant a new trial on the grounds that the verdict was contrary to the law and the evidence. Argument on the motion was continued to January 7, 1964, at which time the motion was overruled and Duffield was sentenced in accordance with the verdict. Sands excepted to this action of the court, and on his motion execution of the judgment was postponed so that a writ of error could be applied for.
Sands testified that he did not recall discussing an appeal with Duffield between September 26, 1963, the date of conviction and January 7, 1964, the date of sentence. He did state, however, that Duffield had previously told him "a half dozen times" that he did not want to appeal and "didn't care". He further testified: "As far as I was concerned, I was his appointed counsel, and my services had been concluded by the Court".
On January 7, 1964, Sands wrote a letter to Duffield's parents and mailed copies of it to Duffield, his wife and brother. It reads:
"'I have just returned from Court where the motion to set aside the verdict of the jury, on the ground that it was contrary to the law and evidence, was argued."
"'As I anticipated, the Court listened very intently but overruled the motion and pronounced sentence. I then asked for a sixty day stay of execution in order to notify the family so that they might have time for any further proceedings, if desired, and the Court then fixed the execution date for March 29, 1964."
"'This concludes my services as appointed attorney, and if there is any desire on your part to note an appeal or any other procedure, it will, of course, be necessary for you to employ private counsel.'"
In his first assignment of error, Duffield claims that his blue trousers and T-shirt were inadmissible in evidence because they were obtained by an illegal search and seizure.
Before the reasonableness or legality of an alleged search may be questioned it is necessary to first determine whether there has actually *183 been a search. "A search ordinarily implies, a quest by an officer of the law, a prying into hidden places for that which is concealed." State Coolidge,
106 N.H. 186, 191, 208 A.2d 322, 326. It implies "some exploratory investigation, or an invasion and quest, a looking for or seeking out. * * * [It] is generally held that the mere looking at that which is open to view is not a 'search'". 79 C.J.S., Searches and Seizures, | 1, pp. 775, 776.
Here, there was no evidence that Detectives Asaro and Cherry obtained entry into Duffield's home by intimidation or trickery. On the contrary they properly identified themselves to Mrs. Duffield as police officers and informed her that they wanted to ask Duffield "a few questions about what happened last night". The officers were invited into the house to await Duffield's arrival. As was said in Robbins McKenzie, 364 F.2d 45, 49, "We do not think that after a householder, who has been fully and honestly informed of the objectives of the police, makes a responsive gesture of invitation, the courts must engage in a psychological or physiological inquiry into whether the invitation was really meant". While inside, Mrs. Duffield was merely asked if she knew what clothing her husband had worn the previous day. She was not requested to secure them. However, she voluntarily left the room alone and returned with Duffield's blue trousers and T-shirt for the officers to observe. The officers engaged in no exploration whatever, so the question of her consent to a search is not involved.
In State Coolidge, supra, police officers visited the residence of Coolidge for the purpose of investigating a murder of a young girl. Coolidge's guns and clothing were voluntarily shown and given to the officers by his wife without coercion and were taken from the premises with her consent. The court held, among other things, that the articles were not obtained by search and seizure, and that no constitutional rights were violated. See also United States Pate, 324 F.2d 934.
"A seizure contemplates forcible dispossession of the owner." State Coolidge, supra. Here, there was no forcible dispossession. The police officers simply asked Duffield if they might take his clothing with them to headquarters and he readily agreed.
We therefore hold that the articles of clothing in question were not obtained by illegal search and seizure, and that they were properly admitted into evidence. *184
Duffield further contends that the trial court erred in holding that his confession was voluntary.
It will be observed that Duffield's trial was had before the decisions were rendered in Escobedo Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 and Miranda Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. In Johnson New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882, the court ruled that these decisions were to be applied prospectively. Hence, the strict principles enunciated therein are not applicable here.
The record shows that after Duffield was identified by the victim's brother he was questioned by several police officers. Duffield testified that they used "harsh tones" and one of them "shook his fist" in his face. This was denied by Detective Sanders. In any event no confession was elicited at this time. Duffield made the confession later when he and Sanders were alone in another room for a short period of time. He does not assert that Sanders threatened, mistreated or abused him in any way. On the contrary he testified that Sanders "treated me in a very kind way, just like a father * * *". Sanders stated that before he interrogated Duffield he advised him of his right to have counsel present, to remain silent, and to use the telephone. After directing the police officers to the victim's body, he was returned to headquarters. He was again told of his rights before signing a statement confessing to the rape and murder of Gwendolyn Padgett.
There was ample evidence to support the trial court's finding that Duffield's confession was voluntary under the test applicable at the time of his trial, and the court did not err in admitting the confession into evidence.
Duffield's contention that his constitutional rights were violated when he was not afforded counsel at the preliminary hearing is without substance. The preliminary hearing in this State is procedural and not jurisdictional. Snyder Commonwealth, 202 Va. 1009, 1014, 121 S.E.2d 452, 456. Such a hearing is not a critical stage of the proceedings which would require the benefit of counsel. Vess Peyton, 352 F.2d 325; Peyton Ellyson,
207 Va. 423, 428, 150 S.E.2d 104, 108. The fact that the potential penalty is death for the offense here involved does not change the procedural character of the preliminary hearing so as to make it a critical stage.
We proceed next to a consideration of Duffield's fourth assignment *185 of error, wherein he claims that the court below erred in not holding that he had been denied effective assistance of counsel.
Duffield concedes in his brief that Sands "is a very able attorney and has had many years of experience in trying appointed cases". However, he argues that he was not afforded effective representation by Sands because (1) he did not object to the introduction in evidence of the blue trousers and T-shirt "which were seized illegally"; (2) he did not ascertain whether the confession was voluntarily made and object to its introduction, and (3) he failed to explain to Duffield his right of appeal as an indigent.
Under the evidence there were no valid grounds upon which counsel could have objected to the introduction in evidence of Duffield's blue trousers and T-shirt. As we have hereinabove said they were not obtained by an illegal search and seizure. Mrs. Duffield voluntarily left the living room where the officers were seated and returned with the clothing without having been requested to do so. Moreover, Duffield agreed that the officers could take the clothes to headquarters.
The record shows that on July 29, 1963 Duffield furnished Sands a memorandum in his own handwriting stating in detail the contents of the confession he signed at headquarters on March 5, 1963. In substance, the two papers are similar. From this statement and his communications with Duffield, Sands had no reason to suspect that the confession was anything but voluntary, and Duffield in no way indicated to Sands that it was otherwise. Under the facts in this case, we cannot say that counsel was ineffective because he did not object to the introduction of the confession.
Duffield also claims that Sands was ineffective because he failed to explain to him his right of appeal as an indigent. We do not agree. First, such failure does not affect the fairness of a trial itself. It cannot be said that Duffield was denied a fair trial by ineffective assistance of counsel on the basis of an omission by counsel after the conclusion of the trial. Second, we cannot say that Sands' omitting to explain to Duffield his right to an appeal amounted to a denial of effective representation in the face of his repeated statements expressly indicating that he did not want to appeal.
The court below found that Duffield "had competent, effective, and experienced counsel" during the trial of his case. The record supports this finding. It shows that Sands investigated the charge, had numerous conferences with Duffield and members of his family, *186 employed an independent psychiatrist, and conducted a carefully planned defense on behalf of his client.
Finally, Duffield's main contention is that he was denied the right of an appeal.
It is well settled that a defendant in a felony case has a right to petition for an appeal, and that he is entitled to court-appointed counsel to assist him if he is indigent. Cabaniss Cunningham, 206 Va. 330, 333, 143 S.E.2d 911, 913. Duffield testified that no one discussed an appeal with him, but Sands said that Duffield told him on several occasions that he did not want to appeal. However, on January 7, 1964, the date that Duffield's motion to set aside the verdict was overruled and sentence was pronounced, Sands wrote a letter to Duffield's parents sending copies of it to Duffield, his wife and brother. The letter reads in part:
"This concludes my services as appointed attorney, if there is any desire on your part to note an appeal or any other procedure, it will, of course, be necessary for you to employ private counsel". (Italics supplied.)
Sands undertook to give advice in the event an appeal was desired and in so doing misinformed Duffield. While we have indicated there is no duty on counsel or the court to inform every defendant in a criminal case after conviction of his right to an appeal in the absence of an indication one is desired ( Peyton Webb, 207 Va. 417, 422, 149 S.E.2d 889, 892), this is not to say there is no duty not to misinform him, thereby causing him to believe he has no right to appeal unless private counsel is employed. It was not necessary for Duffield, an indigent, to employ private counsel in order to perfect his appeal. He was entitled to have the court appoint counsel for him. Certainly, Duffield, who had received the death penalty, had the right to change his mind and seek an appeal. Under the terms of Sands' letter he could not do so unless he employed private counsel. In view of this misinformation by his court-appointed counsel we are of opinion that Duffield was in effect denied his right to appeal and is entitled to have counsel appointed to file a delayed petition for appeal.
Accordingly, we vacate the order of September 29, 1966 denying and dismissing the petition for a writ of habeas corpus and remand the case to the court below with direction to appoint counsel to assist Duffield in applying for an appeal from his conviction of murder. It appearing that a transcript is available, court-appointed counsel *187 shall submit if for approval and certification by the trial court within a reasonable time, not exceeding sixty days after the appointment of counsel. Upon certification of the transcript, Duffield's attorney shall be furnished a copy thereof and of any other relevant parts of the record he may desire. Counsel shall then prepare and present a petition for appeal to this court, or to one of its justices, in the manner provided by law.
If these procedures are not complied with, Duffield shall promptly be granted a new trial or be released from further custody. Stokes Peyton,
207 Va. 1, 6, 147 S.E.2d 773, 777; Russell Peyton, 207 Va. 469, 473, 150 S.E.2d 530, 533.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353129/ | 118 Ga. App. 62 (1968)
162 S.E.2d 771
PHILLIPS, by Next Friend
v.
TOWN OF FORT OGLETHORPE et al.
43240.
Court of Appeals of Georgia.
Submitted January 5, 1968.
Decided June 7, 1968.
Rehearing Denied June 25, 1968.
*63 Frank M. Gleason, for appellant.
John E. Wiggins, for appellees.
Henry L. Bowden, Martin McFarland, amicus curiae.
DEEN, Judge.
The duty imposed by Code § 69-303 on municipalities to keep the streets in a reasonably safe condition for travel is a ministerial or corporate function, a violation of which resulting in injury to the plaintiff is actionable. Herrington v. Mayor &c. of Macon, 125 Ga. 58 (4) (54 S.E. 71); Mayor &c. *64 of Milledgeville v. Holloway, 32 Ga. App. 734 (1) (124 S.E. 802); Mayor &c. of Macon v. Smith, 14 Ga. App. 703, 706 (82 S.E. 162); City of Waycross v. Howard, 42 Ga. App. 635 (157 SE2d 247). As against a general demurrer, and disregarding mere legal conclusions of the pleader, the real issue in this case is whether the maintenance of a defective traffic light by the city, with knowledge of the defect, in such manner as to cause automobiles relying upon it to collide with each other constitutes negligence in the exercise of a governmental or ministerial function, for we believe the conclusion that it is negligence, if proved as alleged, is beyond dispute. Applying the Code section, we must accept that by definition the duty to keep the streets in a reasonably safe condition for travel is a ministerial duty. The facts alleged show that the street, with the traffic light showing a "go" signal in all directions, was not safe for travel and every car approaching the intersection was, by virtue of this fact, on collision course. The contention is, however, that regardless of these facts the maintenance of the traffic light system is governmental, as a part of the police power of the municipality, and this also is true. A fine but valid distinction has been drawn in similar cases. In Mayor &c. of Savannah v. Jones, 149 Ga. 139 (4) (99 S.E. 294) the court held: "The municipality was in the performance of a governmental function in maintaining and emptying the box above described, but the municipality was also under ministerial duty to keep its streets and sidewalks free from obstruction such as alleged. Consequently, under the facts alleged in the petition, at the time of the injury the exercise of the governmental function of emptying the box had ceased, and the ministerial duty of keeping the streets and sidewalks free from obstructions was obligatory, and the municipality would be liable in damages for negligence." The duty of the municipality is to keep its streets in reasonably safe condition for travel by ordinary modes, and it will be "liable for damages for injuries sustained in consequence of its derelictions in this regard, no matter by what cause the streets may have become defective and unsafe, where the city knew or should have known of the defect in time to repair it or to give warning of its existence." See City of Atlanta v. Robertson, 36 Ga. App. *65 66 (1) (135 S.E. 445). In that case the defect lay with the defective maintenance of a sewerage system, a governmental function, resulting in an unsafe traffic condition by which the plaintiff was injured. See also Allison v. Medlock, 224 Ga. 37 (4) (159 SE2d 384). Likewise, the maintenance of a park is a governmental function, but an object protruding from the park above the sidewalk, rendering travel on the sidewalk unsafe, is actionable. City of Macon v. Stevens, 42 Ga. App. 419 (1) (156 S.E. 718).
A case closely in point is Johnston v. City of East Moline, 405 Ill. 460 (91 NE2d 401). A municipal street intersection was controlled by four sets of traffic lights or standards. The one on the northwest corner was knocked out and the city, with knowledge of the condition, allowed traffic to continue for several days controlled by only three standards. As a result of the absence of the traffic signal, an automobile which would otherwise have had the right of way collided with another automobile entering at right angles on a green light. The court held in part: "The question of what the city did or permitted at the intersection, in the matter of controlling or not controlling traffic after the northwest standard was removed, is before us, and whether or not its acts and omissions in that regard were in the exercise of a governmental function or a corporate [ministerial] duty must be decided. . . A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. . . Appellant having elected to install, and having installed the signal system in question, it was a corporate duty not to permit its operation in a manner calculated to cause injury to others . . . it failed to perform a corporate duty." "The `defects in its streets' for which a municipal corporation may be held liable under the provisions of this Code section [§ 69-303] have been held to include objects adjacent to, and suspended over, the municipality's streets and sidewalks, the presence of which renders the use of these thoroughfares more *66 hazardous." City Council of Augusta v. Hammock, 85 Ga. App. 554, 560 (69 SE2d 834).
Some of the Georgia cases have stated broadly that the maintenance of traffic control systems by municipalities is a governmental function, and the difficulty lies in the meaning of the word maintenance within the context of the case. In Stanley v. City of Macon, 95 Ga. App. 108 (97 SE2d 330), one of the cases where this language appears, the defect in the traffic control installation was above the street and allowed the escape of high voltage current so that a Georgia Power Company employee climbing the pole in connection with his own duties for the power company came in contact with it. The court specifically pointed out (p. 110): "It cannot reasonably be said that defective maintenance of a traffic control signal 15 feet above the street at a place which could not be reached except by climbing a pole is in such a location as to constitute defective maintenance of the streets and sidewalks along which normal pedestrian and vehicular traffic moves, and liability against the city cannot be predicated upon this theory." Had the defect inhibited the reasonably safe flow of traffic, an opposite conclusion would doubtless have been reached, and this is where Code § 69-303 comes into play. In Arthur v. City of Albany, 98 Ga. App. 746, 747 (106 SE2d 347) it was held that the city's discretion as to the location of stop signs was governmental in character. This being so, the city could either erect or remove the signs at will, and the fact that one previously erected and removed was not replaced did not render it liable. See Code § 69-302. In City of Rome v. Potts, 45 Ga. App. 406 (165 S.E. 131) the plaintiff complained that the timing sequence of the traffic light was too fast, but the decision as to how the light should be timed, like the decision to erect it in the first place, was within the discretion of the municipal authorities.
The allegations of the present case, if proved, established that the municipality was negligent in not repairing its traffic control device, that the malfunction of the device was a proximate cause of the plaintiff's injuries, and that the negligence alleged rendered the use of the streets less safe.
The trial court erred in sustaining the general demurrer.
*67 Judgment reversed. Felton, C. J., Jordan, P. J., Hall and Whitman, JJ., concur. Felton, C. J., and Jordan, P. J., also concur specially. Bell, P. J., Eberhardt, Pannell, and Quillian, JJ., dissent.
JORDAN, Presiding Judge, concurring specially. I concur with the majority opinion and would reverse for the additional reason that in my opinion the petition alleges facts sufficient to constitute a nuisance, the theory upon which the petition is based. If it can be said that the facts alleged are sufficient to constitute a nuisance, then the defendant municipal corporation, like any other tortfeasor, would be liable for damage resulting from the nuisance, regardless of whether it arose from the construction and maintenance of a governmental function or not. Ingram v. City of Acworth, 90 Ga. App. 719, 720 (84 SE2d 99); Archer v. City of Austell, 68 Ga. App. 493, 497 (23 SE2d 512); Delta Air Corp. v. Kersey, 193 Ga. 862 (3) (20 SE2d 245, 140 A.L.R. 1352).
The allegations of this petition (which must be taken as true as against general demurrer, this case having been passed on by the trial court prior to the effective date of the Civil Practice Act) are sufficient to allege a nuisance and thus bring into issue the question of liability of the Town of Fort Oglethorpe. The alleged facts which take this case beyond Stanley v. City of Macon, 95 Ga. App. 108 (97 SE2d 330); Arthur v. City of Albany, 98 Ga. App. 746 (106 SE2d 347), and like cases are that the mayor, the chief of police, and all the aldermen knew that the traffic lights at this intersection (that of a city street with U. S. Highway #27) were not working correctly and had not been for two weeks and that after knowledge of said defective condition failed to repair and continued to maintain and operate them in a defective condition, and that said mayor and chief of police knew that six automobiles had collided at this intersection on the day plaintiff was injured and did nothing to correct the situation.
Such allegations here of knowledge of a defective condition and continued maintenance of the same is exactly what this court said was lacking in Stanley v. City of Macon, supra, p. 111, pointing out that "herein lies one of the important distinctions *68 between mere negligence and nuisance (in regard to the latter the question of negligence is immaterial), although nuisance may result from negligence." Since such allegations as were lacking in that case are present here, it moves this case from the realm of mere negligence to that of gross nuisance. A more flagrant nuisance on the part of a municipality can hardly be imagined than that of knowingly operating a traffic signal which flashes the green "go" signal to vehicular traffic approaching a busy intersection from all directions, thus requiring drivers who must proceed in accordance with such signals to engage unknowingly and unwillingly in a game of "Russian roulette."
It is clear that any obstruction to a public street in a city is a public nuisance. Mayor &c. of Columbus v. Jaques, 30 Ga. 506, 512, citing an old English case to the effect that "all injuries whatsoever to a highway, as by digging a ditch or making a hedge across it, or laying logs of timber in it, or by doing any other act which will render it less commodious to the King's subjects, are public nuisances at common law." (Emphasis supplied.) In City Council of Augusta v. Jackson, 20 Ga. App. 710 (93 S.E. 304), it was alleged that the city granted a permit to a fraternal order to maintain and operate a street carnival and shooting gallery on certain public streets and that plaintiff's 13-year-old son while walking along a street was hit and killed by a bullet from the shooting gallery. This court, in affirming the overruling of the city's demurrer to the petition, held such unauthorized obstruction to be a nuisance and that "the plaintiff not only avers that the defendant expressly permitted an alleged enterprise to be put in operation, but also avers that the defendant then and there knew, and had sufficient opportunity to put it on notice, as to the existence of such dangerous shooting gallery," (p. 712), concluding that "the plaintiff's petition charges a double wrong on the part of the defendant city, namely, causing a public street to be put in a dangerous condition, and then knowingly permitting it to remain in such condition. It charges an act of commission as well as an omission, each of which is a violation of that duty imposed by law upon every municipality to keep its streets in a reasonably safe condition for passage and travel." P. 713. (Emphasis supplied.)
*69 While the maintenance and operation of the defective traffic light was not a physical obstruction within itself, can it be said to produce a situation any less dangerous than a ditch, a hedge, logs of timber, a shooting gallery, or some other physical obstruction across the street? Indeed it was more of a mantrap and deathtrap than any of these and was sufficient to charge the defendant municipality "with causing a public street to be put in a dangerous condition and then knowingly permitting it to remain in such condition."
The facts alleged here also distinguish this case from Arthur v. City of Albany, 98 Ga. App. 746, supra, where its was held that the city was not liable in failing to maintain a stop sign at an intersection where one had once been erected, such failure being insufficient to allege the maintenance of a nuisance. Such would be the result here had the defendant taken down the traffic signal or merely ceased operating it after its defective condition became known. What puts this case in the nuisance category is the allegation that after knowledge of the dangerous situation created by the faulty light, the defendant city continued to maintain and operate it in a defective condition, a dangerous, positive act of commission rather than the allegation of omission or failure to maintain as in the Arthur case, supra.
2. It is said in the dissent that even when a nuisance is created by the operation and maintenance of equipment used in a governmental function "no recovery can be had because no invasion of, or interference with the enjoyment of, real property of the plaintiff in proximity to the alleged nuisance is shown," citing Stanley v. City of Macon, supra. This seems to be in conflict with what this court, speaking through Judge Powell, said in Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, at p. 752 (65 S.E. 844), "At common law a nuisance was regarded only as an injury to some interest in land. Blackstone's definition of a private nuisance is `anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.' The definition adopted in our Code is broader `A nuisance is anything that worketh hurt, inconvenience, or damage to another.' Civil Code, § 3681. An examination of the authorities will show that the modern tendency of the American courts is *70 to break away from so much of the common law rule as confined redress on account of nuisances to the damage done to some interest in real property, and as gave remedy only to persons having interests in lands. . . Under our Code we think the rule is not so rigid, but that one who has been specially endamaged by a nuisance can recover from the wrongdoer, though his damage consists in an injury to his purse or person, irrespective of whether he has had an interest in real estate damaged or not."
The Towaliga case was cited with approval in Central Ga. Power Co. v. Nolen, 143 Ga. 776 (85 S.E. 945), in which Justice Lumpkin, speaking for the court said, "The injury here complained of is to health, not property. It will not be presumed that the legislature intended to authorize a corporation or an individual negligently to create a nuisance tending to destroy the lives or injure the health of others without remedy for damages resulting therefrom, unless it should clearly so appear . . . In this State damages recoverable on account of a nuisance are not limited to injury to realty; but injury to health may furnish a basis for such recovery." Code § 72-103 provides, "If a public nuisance should cause special damage to an individual, in which the public does not participate, such special damage shall give a right of action." Any injury to one's health or limb, or to one's purse, is a special damage and it matters not that others within the sphere of the operation of the nuisance might or might not be affected. See Hunnicutt v. Eaton, 184 Ga. 485 (191 S.E. 919) and cases therein cited.
In any event, the Georgia rule does not require that a public nuisance cause damage to real estate before any recovery can be had by someone who suffers an injury or damage to personalty as a result thereof, where it is shown that the nuisance arises out of an obstruction in or to a street which interferes with the public right of passage. As pointed out above the continued operation of a defective traffic signal with knowledge of its defect, such as the situation here alleged to exist, amounts to an interference with the orderly flow of traffic and the public's right of passage more substantially than a physical obstruction and should come under the same rule.
*71 Chief Judge Felton also joins in this special concurrence.
PANNELL, Judge, dissenting. The majority opinion is predicated upon two erroneous theories: (a) that the maintenance of a traffic signal light is a ministerial function, and (b) that the failure to properly maintain a traffic signal light creates a defect or obstruction in the street and the Town of Fort Oglethorpe is liable under Code § 69-303. The concurring opinion is based upon the erroneous premise that recovery can be had on the theory of an injury caused by the maintenance of a nuisance for which the city would be liable irrespective of whether it be created by the exercise of a governmental or of a ministerial function, even though such nuisance had no effect upon the enjoyment of real property or rights therein.
Whatever my personal views and sympathies might be, I am constrained by the prior decisions of this court and of the Supreme Court of this state to disagree with these positions.
These opinions seek to distinguish certain cases and rely on language lifted from the context in others and completely disregard the rulings in other cases by this court which distinguish the very cases the majority rely upon, and show that they do not apply to cases such as the present one.
Let us first determine what has been previously held in cases which have not been overruled and which are binding upon us. In City of Rome v. Potts, 45 Ga. App. 406, 410 (165 S.E. 131), this court ruled: "The alleged negligence of officers of the municipality in operation of the traffic light established and maintained under provisions of the traffic code of the City of Rome, in that they did not allow a reasonable time between change of lights for plaintiff to cross the street, does not change the ruling herein made. Operation of the traffic light conducted in behalf of the public safety was a governmental function, for the negligent performance of which the city is not liable. Mayor &c. of Savannah v. Jones, 149 Ga. 139 (99 S.E. 294) [erroneously distinguished and relied on by the majority here]; Civil Code (1910), § 893; 43 CJS 964, § 1245." (Emphasis supplied.) This is an express ruling that the operation of a traffic light is a governmental function. If this is so, the failure to operate or the improper operation of it because of negligent maintenance does not remove it from the governmental function area.
*72 In Stanley v. City of Macon, 95 Ga. App. 108, 109 (97 SE2d 330), this court again ruled: "Operation of a traffic light conducted in behalf of the public safety is a governmental function, for the negligent performance of which the city is not liable. City of Rome v. Potts, 45 Ga. App. 406, 410 (165 S.E. 131); Stubbs v. City of Macon, 78 Ga. App. 237 (2b) (50 SE2d 866) . . . Nothing to the contrary is held in the case of Mayor &c. of Savannah v. Jones, 149 Ga. 139 (99 S.E. 294) [the majority here say the contrary was held and used this case to support its opinion], which holds that while a city in the emptying of its trash cans is performing a governmental function it may also, by removing and placing the lid in such a manner as to obstruct the street, be negligent in its ministerial duty of keeping the sidewalks free from obstruction and be liable on this theory. It cannot reasonably be said that defective maintenance of a traffic control signal 15 feet above the street at a place which could not be reached except by climbing a pole is in such a location as to constitute defective maintenance of the streets and sidewalks along which normal pedestrian and vehicular traffic moves, and liability against the city cannot be predicated upon this theory." (Emphasis supplied.) Also in reference to the premise upon which the concurring opinion is based, that is, the nuisance theory, the court in the Stanley case disposed of that on two grounds: (a) that there was no knowledge on the part of the city as to the defect in the traffic light (in the present case, there are allegations as to knowledge) and, as is true of the present case, the court in the Stanley case further held: "(b) The petition is also insufficient to show that the city was maintaining a nuisance of which the plaintiff, an employee of the Georgia Power Company (as distinguished from the utility who owned the property in question) could complain. This court adheres to the often repeated designation of an actionable private nuisance as one which is `specially injurious to an individual by reason of its proximity to his home.' Lewis v. City of Moultrie, 27 Ga. App. 757 (110 S.E. 625); Stubbs v. City of Macon, 78 Ga. App. 237 (1) (50 SE2d 866); Kea v. City of Dublin, 145 Ga. 511 (89 S.E. 484); City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S.E. 345); Ingram v. *73 City of Acworth, 90 Ga. App. 719 (84 SE2d 99); Delta Air Corp. v. Kersey, 193 Ga. 862 (20 SE2d 245, 140 A.L.R. 1352). The origin of this limitation on the nuisance doctrine dates back to the common law, which construed nuisance as an infringement on a man's freehold. Garrett, Nuisances, 3rd Ed., p. 2. It was observed in State ex rel. Boykin v. Ball Investment Co., 191 Ga. 382, 389 (12 SE2d 574), that our statutory definition of nuisance, which corresponds with that found in Blackstone, `was not intended to change the common law definition of a nuisance.' While it is no longer required that the plaintiff in a nuisance case show, as he had to do at common law, a freehold interest in the property affected by the nuisance, and while he no longer need show damage to the realty itself, he must still show that the condition is injurious by reason of its relationship to his home or property in the neighborhood where it is located, or else that it is injurious by reason of its constituting an obstruction to streets or sidewalks and like places used by the public generally for passage, which obstructions were at common law regarded as public nuisances because they interfered with the public right of passage. See Garrett, Law of Nuisances, supra, p. 3. In 75 ALR, p. 1196 at page 1198 it is also stated: `As noted above, it is generally held that the municipality, as owner of real estate, owes the same duties to the owners of neighboring lands, with respect to the use of its own, as are owed by a private owner of land, and hence that the municipality is liable to other landowners, where it makes such use of its land as to constitute a nuisance, regardless of whether it is engaged in performing a governmental or private function.' This rule is equally applicable, of course, whether the actual injury is personal or property damage. Nothing in Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749 (65 S.E. 804) authorizes a contrary ruling [in the present case the concurring opinion cites this case as authority], for in that case the question of the plaintiff's interest in the property affected by the nuisance was first considered, and it was held that he, as a tenant at will of the property, had such an interest therein as would sustain the action. What is said thereafter, to the effect that one specially damaged by a nuisance can recover from a wrongdoer, though his damage *74 consists in an injury to purse or person, irrespective of whether he has had an interest in real estate damaged or not, refers to the measure of damages, the holding being that one in the plaintiff's position might maintain the action for personal injuries regardless of whether he personally would also be entitled to recover for the damage to the real estate." (Emphasis supplied). In Arthur v. City of Albany, 98 Ga. App. 746, 757 (106 SE2d 347), in reference to the failure to maintain a stop sign, this court said: "1. The trial court did not err in sustaining the general demurrers. Count 1 of the petition was insufficient to set forth a cause of action on account of the maintenance of a nuisance. The allegations of the petition fail to show that the condition created by the absence of the stop sign was injurious to the plaintiff by reason of its relationship to her home or property located in the neighborhood, or that it was expressly injurious to the plaintiff as a member of the public as constituting an obstruction to the streets or sidewalks. Stanley v. City of Macon, 95 Ga. App. 108, 112 (2b) (97 SE2d 330). 2. The operation and maintenance of traffic lights and other traffic control devices is a governmental function conducted on behalf of the public safety and for the negligent performance of which municipal corporations are not liable. Code § 69-301; City of Rome v. Potts, 45 Ga. App. 406, 410 (165 S.E. 131). Such functions are not related to the maintenance of the streets as such, and liability of a municipality for the negligent failure to maintain a stop sign after it is once erected cannot be predicated on the theory that it is a part of street maintenance.
`In deciding whether to erect the stop sign in the first place and in erecting it, the municipality exercises its legislative or judicial powers, and in determining whether to maintain the stop sign or traffic control device or to operate it, and in determining whether to replace it once it has been destroyed or removed, are all a part of the same exercise of legislative or judicial power, and the duty of erecting the device cannot be divorced from the duty of maintaining it so as to say that the erection of the stop sign is an exercise of the legislative function, but that its maintenance or re-erection is merely ministerial. Long recognized limitations on municipal liability for *75 the negligent performance of governmental duties will not be abrogated by this kind of judicial legislation. City of Cumming v. Chastain, 97 Ga. App. 13 (102 SE2d 97).
"It follows that the petition failed to set forth a cause of action against the municipality in any of its counts, and the trial court did not err in sustaining the general demurrers and in dismissing it. See Stubbs v. City of Macon, 78 Ga. App. 237 (2b) (50 SE2d 866)." (Emphasis supplied.) In Stubbs v. City of Macon, 78 Ga. App. 237 (50 SE2d 866), this court ruled as follows: "1. Municipalities are liable for the acts of their officers, agents, and servants only in instances as follows: (a) In the performance of any function where a statute specifically provides for such liability (see specific statutes). (b) For neglect to perform or improper or unskillful performance of their ministerial duties (see Code § 69-301). (c) For the performance of their governmental functions where the same amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor (see Art. I, Sec. III, Par. I of the Constitution, Code Ann. § 2-301), or the creation of a nuisance dangerous to the life and health of persons because of its proximity to them in the enjoyment of their property. See Kersey v. Atlanta, 193 Ga. 862 (20 SE2d 245, 140 A.L.R. 1352), and cases there cited. . . 4. The petition in the instant case shows that the municipality was engaged in the operation of a city park, and in the operation of its parking meters, both governmental functions, in connection with the injury of the plaintiff; and that the conduct of its officers, agents, and servants was not such as to amount to the taking or damaging of private property for public purposes without first making adequate compensation therefor; nor is such a nuisance alleged as was dangerous to the life and health of persons because of its proximity to them in the enjoyment of their property. Therefore the judgment of the trial court sustaining the demurrer to the petition is without error." In this case, a water-meter box was left about 7 inches above the level of the pavement after parking meters were installed next to the paved walkway in the park.
These cases have clearly and distinctly ruled (1) that the *76 maintenance, even though negligently done, of a traffic control device, whether a stop sign or an electrical signal, is a governmental function and (2) that where a nuisance is created by a governmental function and injury caused therefrom, no recovery can be had (a) unless there has been an invasion of a real property right or a right of enjoyment of real property or if this is not shown (b) it must be shown that it is a nuisance which constituted an obstruction to the streets or sidewalks. The very cases cited by the majority opinions show that the nuisance must relate to injuries to real estate or injuries to enjoyment of real estate. I do not dissent from the majority on the ground that there was no nuisance created by the continued maintenance of the defective light, but I do dissent on the ground that the nuisance here involved is not the type of nuisance for which recovery could be had where a governmental function was being carried on. The governmental immunities doctrine and law as established which permits the growth and operation of small governmental units, as well as aids the continuance of larger units of government should not be changed by the courts, but if same is to be done, should be done by legislation. If it is done in that manner, safeguards can be erected to permit small governmental units to survive and citizens to be protected in their rights. In every case cited by the majority opinion, the operation of a governmental function caused an actual physical obstruction in the street, or the nuisance created, affected the enjoyment of rights in and to real property, even though damages for injury to the person and personal property were the measure of the right to recover. Cases of this type are distinguished and declared inapplicable to cases involving traffic lights which themselves do not physically obstruct the streets in the cases from which we have quoted. In my opinion, the following is a correct solution of this case:
1. The operation of a traffic control system by a municipal corporation being a governmental function in the exercise of its police power, the municipality is not liable for injuries caused by the negligent installation and maintenance of such equipment. City of Rome v. Potts, 45 Ga. App. 406, 410, supra; Stanley v. City of Macon, 95 Ga. App. 108, supra; Arthur v. City of Albany, *77 98 Ga. App. 746, supra; Mayor &c. of Savannah v. Jones, 149 Ga. 139, supra.
2. While it may be true that a municipality may be held responsible for the creation of a nuisance in connection with the installation, operation and maintenance of equipment used in a governmental function (Stanley v. City of Macon, 95 Ga. App. 108, 110 (2), supra), yet where, as in the present case, it appears that the injury was to the person of, and the vehicle of, the plaintiff arising out of a collision with the vehicle of another defendant occurring at a street intersection where a signal light operated and maintained by the municipality was showing green on both intersecting streets, no recovery can be had because no invasion of, or interference with the enjoyment of, real property of the plaintiff in proximity to the alleged nuisance is shown. Stanley v. City of Macon, supra; Stubbs v. City of Macon, 78 Ga. App. 237 (1), supra.
While the damages are not limited to the injury to the realty, and damages may be recovered for injuries to health (Central Ga. Power Co. v. Nolen, 143 Ga. 776, 778 (85 S.E. 945)) and loss of business profits (Barham v. Grant, 185 Ga. 601, 605 (7) (196 S.E. 43)), such damages to the person and to the property must arise out of an invasion of a property right relating to real estate. See Stanley v. City of Macon, 95 Ga. App. 108, 113, supra.
3. A signal light, installed by a municipality on a public street, operating improperly, is not an obstruction in the public street, so as to permit the allowance of damages for the negligent failure to maintain its streets properly. Arthur v. City of Albany, 98 Ga. App. 746, 747 (2), supra. It not appearing that the signal light itself was physically obstructing the street (see Mayor &c. of Savannah v. Jones, 149 Ga. 139, supra), there was no change from a governmental function to a ministerial function requiring the removal of the signal light from the street. See Mayor &c. of Savannah v. Jones, supra.
4. The trial court did not err in sustaining the demurrer to the petition and dismissing the same as to the Town of Fort Oglethorpe.
While all the legal issues as decided by the majority have been *78 included in this dissent, there is another ground upon which I feel compelled to dissent from the ruling in the majority opinion insofar as it authorizes a recovery based upon a ministerial function and an obstruction in the street for which recovery may be had under Code § 69-303. I do this for the very simple reason that the plaintiff in his action expressly alleged that the maintenance and operation of the light was a governmental function and sought recovery solely on the grounds that the defendant had committed a public nuisance; and even when setting forth the allegations of negligence prefaced them with the following statement: "That while this cause of action against the Town of Fort Oglethorpe is based on the commission of a nuisance and not negligence, such defendant was negligent and careless in the operation of traffic control lights at such intersection, and committed the following acts which constituted a nuisance."
Even if I should agree with the majority that a recovery could be had for negligence against the city under the facts alleged in the present case, I could not agree to the application of such rule to this case as a recovery was not sought upon those principles. This court cannot grant that which is not asked or sought. It can only correct the errors of the trial judge. If, according to the opinion of the majority, the plaintiff erroneously abandoned his right to recover based on negligence in the maintenance of streets, that is an error that this court cannot correct. In my opinion, the plaintiff properly conceded that no cause of action existed upon such a basis. I also concur with the trial judge in his ruling that no other basis existed for recovery against the Town of Fort Oglethorpe.
Whether or not a recovery may be had against the city officials who may be responsible for the alleged flagrant violation of their duties is not a question presented to this court for decision.
I am authorized to state that Presiding Judge Bell and Judges Eberhardt and Quillian concur in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353908/ | 549 F.3d 468 (2008)
State of OHIO, ex rel. Dana SKAGGS, et al., Relators-Appellants,
v.
Jennifer L. BRUNNER, Secretary of the State of Ohio, et al., Defendants-Appellees.
No. 08-4585.
United States Court of Appeals, Sixth Circuit.
Submitted: November 20, 2008.
Decided and Filed: November 25, 2008.
*470 ON BRIEF: John Wolcott Zeiger, Marion H. Little, Jr., Christopher J. Hogan, Zeiger, Tigges & Little, Columbus, Ohio, for Appellants. Richard N. Coglianese, Aaron David Epstein, Damian W. Sikora, Office of the Ohio Attorney General, Columbus, Ohio, Patrick J. Piccininni, Anthony E. Palmer, Jr., Prosecuting Attorney's Office for the County of Franklin, Columbus, Ohio, Caroline H. Gentry, Porter, Wright, Morris & Arthur, Dayton, Ohio, for Appellees. Meredith E.B. Bell-Platts, American Civil Liberties Union Foundation, Atlanta, Georgia, Carrie L. Davis, American Civil Liberties Union of Ohio, Cleveland, Ohio, Donald J. McTigue, Mark A. McGinnis, Law Office, Law Office, Columbus, Ohio, for Amici Curiae.
Before: KENNEDY, SUTTON, and McKEAGUE, Circuit Judges.
OPINION
PER CURIAM.
On November 4, 2008, more than 27,000 voters in Franklin County cast provisional ballots in the various federal, state and local election contests. In reviewing those ballots, the Franklin County Board of Elections determined that roughly 1,000 of them have a potential defect: They do not contain the printed name or signature of the voter. That omission implicates two questions of state law. First, does Ohio law require a provisional ballot to include the name and signature of the voter in order to be eligible to be counted? See Ohio Rev.Code Ann. § 3505.183(B)(1). Second, if Ohio law contains such a requirement, should a ballot containing such *471 a defect be counted anyway given Ohio's exemption for mistakes attributable to poll-worker error?
The Ohio Secretary of State, Jennifer Brunner, has taken the position that the 1,000 ballots comply with Ohio law. Claiming that Ohio law prevents some or all of these ballots from being counted, two Franklin County voters filed this action against the Secretary of State and the Board in the Ohio Supreme Court. The Secretary of State responded to the lawsuit by removing it to federal court. The claimants parried this thrust by filing a motion to remand the case back to the Ohio Supreme Court. The district court kept the case, holding that it had authority to resolve the dispute and that, under Ohio law, the ballots should be counted.
Before we can consider the district court's decision on the meritsdo these ballots comply with Ohio law?we must ask ourselves whether the federal courts have the power to resolve this dispute. The short answer is that we do not. In bringing this claim, the claimants relied solely on state law and disclaimed any reliance on federal law, stating that "[n]o federal law claims are asserted." Compl. ¶ 1. And in their request for relief, the claimants sought a writ of mandamus compelling the Secretary to comply with state lawa form of relief that only a state court, not a federal court, has the power to impose. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); Combs v. Wilkinson, 315 F.3d 548, 560 (6th Cir. 2002). That normally would end the matter. The federal and state courts traditionally allow claimants to be the masters of their own fate, permitting them to file a lawsuit in whichever court system they prefer and thus permitting them to choose for themselves which body will decide their caseso long as the court in which the case is filed has jurisdiction over their claim.
There are, however, at least two limits on a party's authority to pick its forum. If a party opts to file a complaint in the state court system, the defendant may remove it to federal court if it is one that originally could have been brought thereeither because the parties are diverse or because the complaint seeks relief on the basis of federal law. And if a party files a complaint in federal court, the court on its own initiative or on the initiative of one of the parties may certify a pressing question of state law to the state supreme court. See, e.g., R. Prac. Sup.Ct. Ohio XVIII § 1; Planned Parenthood of Cincinnati Region v. Strickland, 531 F.3d 406, 410 (6th Cir. 2008).
The claimants opted to file this case in state court, and no basis for removing the case to federal court exists. The diversity exception does not apply because, as will generally be the case, the parties to this election dispute all reside in the same State. And the federal-question exception does not apply because the claimants did not rely on federal law in bringing their claim and indeed expressly disclaimed relying on federal law. In her notice of removal, the Secretary claimed jurisdiction based on two consent decrees previously entered by the district court regarding provisional-voting issues. That the Secretary of State and the plaintiffs in another lawsuit have entered into a consent decree in federal court adopting their agreement about the meaning of these provisions does not change matters. A consent decree binds only the parties to the settlement agreement, not the rest of the world or for that matter today's claimants (who had no say in what the consent decree said). Otherwise, state officials and a willing claimant could enter into federal-court consent decrees embracing their preferred interpretation *472 of a state law and forever prevent the final interpreter of state lawthe state supreme courtfrom deciding what it means. That is not how our federal system typically decides what a state law means.
Even if the Secretary had authority to remove this action to federal court, we should point out, we likely would have sought the Ohio Supreme Court's input on the meaning of these state-law provisionsby certifying the questions to the Court to consider in the first instance. No federal court has the final say on what Ohio law means. Even a decision by the highest federal court, the United States Supreme Court, about the meaning of an Ohio law has no more binding authority on the Ohio Supreme Court than a decision of the Michigan Supreme Court or for that matter any other court. The threshold question in this case is what Ohio law means. And the stakes of this dispute one federal and two state legislative racesmake it quite sensible, even aside from the intricacies of the removal doctrine, to find out what the ultimate arbiter of Ohio law has to say about the matter before, rather than after, the provisional-vote-counting process has been irreversibly conducted during this election season. For these reasons and those elaborated below, we vacate the district court's decision and remand the case to the Ohio Supreme Court to resolve the claimants' state-law causes of action.
I.
When individuals go to the polls on election day, they may be prohibited from casting an ordinary vote for any number of reasonssay, because their name does not appear on the official list of eligible voters for the polling place or because they did not bring an acceptable form of identification. See Ohio Rev.Code Ann. § 3505.18. Rather than allowing poll workers to turn these voters away, federal and Ohio law permit the voters to cast provisional ballotsvotes that are not counted until the voter's registration and eligibility are confirmed. See 42 U.S.C. § 15482(a); Ohio Rev.Code Ann. § 3505.181(A). To make confirmation possible, Ohio law typically requires the voter to complete a provisionalballot "affirmation," in which the voter attests that he is both registered and eligible to vote. Ohio Rev.Code Ann. § 3505.181(B)(2). The affirmationa standard form printed on the face of the ballot envelopecontains blanks for the voter's printed name and signature among other things. Id. § 3505.182. After completing the affirmation "before the election official," the voter fills out the provisional ballot, seals it in the envelope and submits it to election officials. Id. § 3505.181(B).
Once the polls have closed on election day, precincts deliver the provisional ballots (along with all of the regularly cast ballots) to the county boards of elections, where the boards compare the information contained in the written affirmation with their own records to "determine whether the individual who cast the provisional ballot is registered and eligible to vote in the applicable election." Id. § 3505.183(B)(1). If the provisional-ballot voter completed an affirmation, the statute provides that his ballot is only "eligible to be counted" if his "name and signature" appear on the affirmation. Id. § 3505.183(B)(1)(a). If the provisional voter "decline[d] to execute" the affirmation, the voter's name, "written by either the individual or the election official at the direction of the individual," must be on the affirmation. Id. § 3505.183(B)(1).
Four developments form the backdrop to today's dispute. First, on March 31, 2008, a member of the Secretary of State's office responded to an inquiry from the *473 Franklin County Board of Elections about the meaning of these provisions. He responded by saying that the "[n]ame AND signature are required" under § 3505.183(B)(1)(a) in order for a ballot to be eligible to be counted, and the Board proceeded to interpret the provision on this basis. Compl., Ex. B at 2.
Second, in October 2008, shortly before election day, the United States District Court for the Southern District of Ohio entered two orders concerning provisional ballots in another caseone still pending from the 2006 election that presented federal constitutional challenges to Ohio's provisional-ballot and voter-identification laws. See Northeast Ohio Coalition for the Homeless v. Brunner (Ohio Coalition for the Homeless), No. 2:06-cv-896 (S.D. Ohio filed Oct. 24, 2006). (Apparently the case was still pending because the parties and the court had not resolved the claimants' request for attorney fees.) Shortly before election day, the parties in the case entered into a settlement, by which the Secretary agreed to issue a statewide interpretation of the provisional-voting laws what became Directive 2008-101 and which lays out general state-wide rules for boards of elections to apply in determining how to count provisional ballots. On October 24 the district court, "[b]y agreement of the Plaintiffs and the Secretary of State," adopted Directive 2008-101 as an order of the court. Order at 1, Ohio Coalition for the Homeless, No. 2:06-cv-896 ("10/24 Order"). Soon thereafter, the parties to the same case reached a second agreementthat, consistent with state law, provisional ballots should not be rejected if any defects in them were caused by poll-worker error. On October 27, in the aftermath of this agreement, the district court entered a second order directing the Secretary to tell the county boards of elections that provisional ballots should not be rejected due to poll-worker error, though the order did not purport to define what constitutes poll-worker error. Order at 2, Ohio Coalition for the Homeless, No. 2:06-cv-896 ("10/27 Order"). The Secretary then issued Directive 2008-103 along these lines.
Third, on election day, November 4, 2008, approximately 27,000 provisional ballots were cast in Franklin County, Ohio. Of those, around 1,000 are deficient in one of three ways: (1) the affirmation has a voter's signature but no printed name, (2) the affirmation has a printed name but no signature or (3) the affirmation has both a signature and printed name, but either one or both of those things are in the wrong location on the affirmation.
Fourth, two members of the Franklin County Board of Elections disagreed with two other members of the Board and the Secretary of State over whether to count these ballots. Citing the language of the relevant Ohio laws, the March 2008 guidance received from the Secretary's office and Directives 2008-101 and 2008-103, two Board members took the position that provisional ballots suffering from these deficiencies were not "eligible to be counted" under Ohio law. The Secretary and two other Board members took the position that the ballots should be counted as long as the Board could verify that "the person is registered to vote, voted in the correct precinct, and that the person was not required to provide additional information/ID within 10 days." Compl., Ex. A at 7.
On November 13, 2008, two Franklin County voters, Dana Skaggs and Kyle Fannin, filed a complaint in the Ohio Supreme Court against the Secretary and the Board arguing that the deficient ballots could not be counted under Ohio law and seeking a writ of mandamus ordering the Secretary to direct the county boards of *474 elections not to count provisional ballots where the written affirmation does not contain both a printed name and a signature in the correct place on the affirmation. Compl. at 15. The Secretary removed the action to federal district court. The claimants and the Board filed separate motions to remand, challenging the removal on the grounds that the complaint did not state any claims arising under federal law and that it violated the "rule of unanimity," which requires all defendants to join in a removal petition, see Loftis v. United Parcel Service, Inc., 342 F.3d 509, 516 (6th Cir.2003). For her part, the Secretary of State moved to realign the parties, arguing that the Board's interests lined up with the claimants, not the Secretary. After granting the Secretary's motion to realign the Board as a plaintiff, the district court denied the motions to remand. Order at 1, 12, State of Ohio ex rel. Skaggs v. Brunner, No. 2:08-cv-1077, 2008 WL 4951795 (S.D.Ohio Nov. 17, 2008).
The parties filed cross motions for summary judgment on the merits, and the district court granted summary judgment in favor of the Secretary. Opinion and Order at 1, 11, State of Ohio ex rel. Skaggs v. Brunner, No. 2:08-cv-1077, 2008 WL 5100684 (S.D.Ohio Nov. 20, 2008). The court held that Ohio law imposed a duty on poll workers to verify that a voter had properly completed the provisional-ballot-envelop affirmation before accepting the voter's provisional ballot, that the deficient ballots were the result of poll-worker error and that the Board therefore should count the ballots. See id. at 11-15.
II.
In challenging the district court's decision, the claimants first raise two jurisdictional arguments-that the removal violates the rule of unanimity and that the removal was improper because the complaint does not rely on federal law. Because we agree that the complaint does not present a federal question and because no other basis for removal exists, we need not reach the rule-of-unanimity question or for that matter the merits of the district court's decision.
Federal courts are courts of limited jurisdiction. Unlike state trial courts, they do not have general jurisdiction to review questions of federal and state law, but only the authority to decide cases that the Constitution and Congress have empowered them to resolve. When a party opts to file a complaint in state court, the federal courts must honor that choice unless Congress has authorized removal of the case. See Rivet v. Regions Bank of La., 522 U.S. 470, 474, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998); 28 U.S.C. § 1441(a). Absent diverse parties or absent one of the other express (though rarely relied upon) grounds for removal, see 28 U.S.C. §§ 1442-1444none of which applies herethe defendant may take the dispute to federal court only if the plaintiff's claim "aris[es] under" federal law, 28 U.S.C. § 1441(b); see Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007) (en banc). A party seeking to invoke the jurisdiction of the federal courtshere the Secretary of Statebears the burden of establishing that such jurisdiction exists. See Brittingham v. Gen. Motors Corp., 526 F.3d 272, 277 (6th Cir.2008). And a dispute over the removal jurisdiction of a federal district court gets a fresh look on appeal. See City of Warren v. City of Detroit, 495 F.3d 282, 286 (6th Cir.2007).
In "determin[ing] whether [a] claim arises under federal law," we look only to the "well-pleaded allegations of the complaint and ignore potential defenses" that the defendant may raise. Mikulski, 501 F.3d at 560 (internal quotation marks omitted). Even "defense[s] that rel[y] on *475 the preclusive effect of a prior federal judgment or the pre-emptive effect of a federal statute," id. (internal quotation marks omitted), or that are "anticipated in the plaintiff's complaint" are irrelevant, as they do not form "part of a plaintiff's properly pleaded statement of his or her claim," Rivet, 522 U.S. at 475, 118 S. Ct. 921 (internal quotation marks omitted). Although the well-pleaded-complaint rule focuses on what the plaintiff alleges, it allows a court to look past the words of a complaint to determine whether the allegations, no matter how the plaintiff casts them, ultimately involve a federal question. In addition to causes of action expressly created by federal law, see City of Warren, 495 F.3d at 286, federal-question removal thus also reaches ostensible state-law claims that (1) necessarily depend on a substantial and disputed federal issue, (2) are completely preempted by federal law or (3) are truly federal-law claims in disguise. See Mikulski, 501 F.3d at 560.
In filing this complaint in the Ohio Supreme Court, the claimants presented a single cause of action under state law and sought a writ of mandamus and injunctive relief as a remedy. Compl. at 15-16. Their complaint expressly disclaimed any reliance on federal law. Compl. ¶ 1. And none of the three grounds for otherwise characterizing their complaint as a federal question applies: (1) Their claim does not necessarily depend on a substantial federal issue; (2) their claim is not completely preempted by federal law; and (3) there is no cognizable basis for saying that they have filed an ersatz state-law claim that, when all is said and done, amounts to nothing more than a federal claim.
Our esteemed district-court colleague, who as is so often the case in an election dispute was given little time to resolve this matter, reached a different conclusion. The court concluded that the complaint arose under two separate sources of federal law: the two consent decrees that the court had issued in the Ohio Coalition for the Homeless case, and the Equal Protection Clause of the United States Constitution. We consider each ground in turn.
Does the complaint allege a violation of the consent decrees or turn on them? No. The claimants, to start with, did not allege that the Secretary had violated the consent decrees or any other federal court order. In the statement of the claim and the prayer for relief, the complaint does not invoke the consent decrees, and indeed it never mentions either consent decree. The most that can be said is that, at one point in the complaint, the claimants mention the Secretary's Directive 2008-101, though not the consent decree. See Compl. ¶ 18. But that reference was not in the context of alleging that the Secretary had violated a federal court order; it was in the context of alleging that the Secretary had offered one interpretation of the relevant statutes before the election and had offered another interpretation of the statutes after the election when the significance of these provisional-ballot-counting issues had become apparent, see id. ¶¶ 17-22. Nowhere did the claimants allege that the Secretary, by adopting a different interpretation of the state laws on November 10, had "violated" her prior administrative directive or the court order that "adopt[ed] and annexe[d]" it, 10/24 Order at 1. To read the complaint any other way would suggest that the defendant, not the claimants, is "the master of [their] complaint." NicSand, Inc. v. 3M Co., 507 F.3d 442, 458 (6th Cir.2007) (en banc).
The Secretary alternatively seeks to uphold the removal decision on the ground that, even if the complaint alleged only state-law grounds for relief, it still "necessarily depends on resolution of a *476 substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 28, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983). The substantial-federal-issue exception opens the federal removal door only if "(1) the state-law claim ... necessarily raise[s] a disputed federal issue; (2) the federal interest in the issue [is] substantial; and (3) the exercise of jurisdiction [will] not disturb any congressionally approved balance of federal and state judicial responsibilities." Mikulski, 501 F.3d at 568. As the Secretary and the district court see it, the complaint meets these requirements because this action cannot proceed without interpreting the two federal-court consent decrees, which incorporate the Secretary's two advisory directives. But, as we see it, the complaint does not satisfy any of these requirements, much less all three of them.
First, the consent decrees do not transform this state-law cause of action into a federal cause of action for a threshold reason: The decrees represent a settlement agreement between the parties to the Ohio Coalition for the Homeless case and thus cannot control the outcome of a case involving different parties, much less insulate a question of Ohio law from review by the one court with a final say over its meaning: the Ohio Supreme Court. Consent decrees derive their authority from the parties' consent, which permits the parties to give away their rights, not the rights of third parties. See City of Warren, 495 F.3d at 287. That a defendant in a state-court lawsuit has previously entered into an agreement with other parties about the meaning of state law that was approved in a federal-court consent decree does not inject a substantial federal issue into a subsequent state-court case. See id.
Moreover, even if for the sake of argument we were to suppose that these orders bound the Secretary in this case, that at most would raise a defense to this action; it would not make the orders an essential element of the claim. Unlike the case on which the district court most heavily relied, EBI-Detroit, Inc. v. City of Detroit, 279 Fed.Appx. 340 (6th Cir.2008), where the plaintiffs explicitly alleged that the defendant had contravened an existing district-court order and therefore had to prove that point to obtain relief, see id. at 346, the claimants in this case have not brought any claims premised on the Secretary's failure to adhere to the terms of the consent decrees. If the Ohio Coalition for the Homeless orders come into play at all in this case, that will be because the Secretary takes the position that the orders tie her hands and preclude her from adopting any inconsistent interpretation of the statutes. But the issue-preclusive shadow cast by a prior federal decision is an affirmative defense, not an ingredient of the claimants' claim, and as such it cannot convert a state-law claim into a federal one. See Rivet, 522 U.S. at 476-77, 118 S. Ct. 921.
Second, the federal interest in this dispute is not "substantial," as measured by the four factors we consider in assessing this point: (1) whether a federal agency is involved; (2) whether the federal question is important; (3) whether a decision on the federal question will resolve the parties' dispute; and (4) how many other cases a decision on the issue in this case will resolve. See Mikulski, 501 F.3d at 570. For one, no federal agency is involved in this dispute. It involves only Ohio voters and Ohio public officials. In this respect, too, the instant facts differ materially from those presented in EBI-Detroit, where the complaint alleged misconduct by a specially appointed federal officer in the performance of his appointed duties, a circumstance necessarily adding *477 to the substantiality of the federal question presented. See 279 Fed.Appx. at 346.
For another, the Secretary's directives, even though they have been included in two federal-court consent decrees, do not create important federal questions in any meaningful sense. The orders do not contain any conclusion that Ohio's election laws violate any provision of positive federal law or that the Constitution, a congressional enactment or an agency regulation requires reading the state statutes in a certain waysay, to avoid constitutional doubts. Rather, both orders by their terms reflect only the parties' mutual agreement about the meaning of these state laws, see 10/24 Order at 1; 10/27 Order at 1, a subject on which the state courts presumptively have the last word, cf. Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 246 (6th Cir.2006). No less importantly, the Secretary's directive with respect to poll-worker error says nothing at all about what constitutes poll-worker error under state (or federal) law, much less about whether a voter's failure to sign a provisional ballot application or include one's name on it constitutes poll-worker error. And the other directive merely restates Ohio law without offering any elaboration on how it would apply to the ballot-counting problem presented in this case. The mere incorporation of state-law requirements in a federal-court consent decree does not automatically create a federal question, much less an important one.
For still another reason, the interpretation of these consent decrees will not resolve this dispute. As noted, they have no direct bearing on the merits of this lawsuit because they merely reflect an agreement among parties to a different suit. And because the decrees offer no specific guidance about how to resolve these disputes, other than by reciting or paraphrasing the relevant language of the state laws, our interpretation of them here would be no more helpful to our resolution of this case than our interpretation of the underlying state laws themselves.
For a final reason, no one suggests that the federal court's resolution of this issue will head off future lawsuits. Exactly the opposite, it would seem, is more likely to happen. Until the Ohio Supreme Court finally decides what these state-law provisions mean, injured parties are bound to continue to ask that Court to resolve this dispute once and for allas indeed is their right.
Third, this is hardly a case where "the exercise of jurisdiction [will] not disturb any congressionally approved balance of federal and state judicial responsibilities." Mikulski, 501 F.3d at 568. Congress's most recent handiwork concerning provisional ballots, the Help America Vote Act of 2002, Pub.L. No. 107-252, Title III, § 302, 116 Stat. 1666, 1706 (codified at 42 U.S.C. § 15301 et seq.), leaves no doubt which lawmaking body-the federal or state governments-has plenary authority over the counting of provisional ballots. It "conspicuously leaves ... to the States" the determination of "whether a provisional ballot will be counted as a valid ballot," Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 577 (6th Cir.2004); see 42 U.S.C. § 15482(a)(4). To allow federal courts free rein in determining whether and under what circumstances a partially deficient provisional ballot will count under state lawwould deprive state courts of their long-established role as the "final arbiter on matters of state law," Planned Parenthood, 531 F.3d at 410. If all it takes to transform purely state-law questions into a substantial issue of federal lawsufficient to end state courts' supremacy in interpreting their own statutesis the agreement of two putatively opposed parties and one federal judge incorporating *478 an interpretation of that law into a consent decree, it is hard to imagine any state-law matter lying outside a federal court's reach.
Accordingly, we hold that the claimants' cause of action does not satisfy any of the three required elements of the substantial-federal-issue exception to the well-pleaded-complaint rule, as set forth in Mikulski. We therefore conclude that the Secretary has failed to carry her burden of demonstrating that the claimants' state-law claim necessarily presents a substantial federal question that warrants removal to federal court.
Did the complaint allege a violation of the Equal Protection Clause? No. On its face, the complaint does not set forth an equal-protection claim, and indeed it explicitly disavows any reliance on federal law: "No federal law claims are asserted." Compl. ¶ 1.
The Secretary nonetheless claims that the complaint amounts to artful pleading because it invokes the substance of an equal-protection claim even if it leaves the form of such a claim behind. See Mikulski, 501 F.3d at 561. In making this argument, she points to paragraphs 4 and 5 of the complaint where, in a section devoted to identifying the relevant parties, the claimants say that they are "bring[ing] this action to assure that [their] vote[s are] not diluted as a result of the misdirected instructions of the Secretary of State to count provisional ballots that are not lawful or valid under Ohio law." Compl. ¶ 5. Yet the claimants made these allegations not in order to raise an equal-protection claim sotto voce but in order to gain admission to the state courts. Under Ohio law, the claimants were required to identify an injury to establish standing to bring this claim. See State ex rel. Toledo v. Lucas County Bd. of Elections, 95 Ohio St. 3d 73, 765 N.E.2d 854, 857 (Ohio 2002) (per curiam) ("The applicable test for standing is whether [the] relator would be directly benefited or injured by a judgment in this case, and this test applies to mandamus actions concerning election matters.").
As with all allegations that a State is counting ballots it should not, one form of injury caused by that problem will be vote dilution. But that reality does not preclude the claimants from relying on state law to redress the harm, particularly when the source of the injury is an alleged misinterpretation of Ohio law. Even if it is true that the claimants might have brought a separate federal constitutional claim to redress this injury, a point on which we need not take a stand, neither the federal courts nor a state official may force them to do so.
Because the Equal Protection Clause also is not a "necessary element of one of the [claimants'] well-pleaded state claims," Franchise Tax Bd., 463 U.S. at 13, 103 S. Ct. 2841, this case does not fit within that "special and small category" of cases finding federal jurisdiction on that ground, Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699, 126 S. Ct. 2121, 165 L. Ed. 2d 131 (2006). The complaint alleges that the Secretary's instructions to the Board violate several Ohio statutes-claims that do not "necessarily depend[]," Franchise Tax Bd., 463 U.S. at 28, 103 S. Ct. 2841, on the resolution of any kind of equal-protection question. The district court, it is true, identified the specter of an equal-protection problem: the chance that a ruling in favor of the claimants might lead to non-uniform provisional vote counting across counties. But such a claim is not a "necessary element of one of the well-pleaded state claims," Franchise Tax Bd., 463 U.S. at 13, 103 S. Ct. 2841, but at best a federal defense that the Secretary may or may not wish to inject into the case *479 in the Ohio courts in support of her proposed interpretation of state law.
One other thing. A federal court may not enjoin a state official to follow state law, see Pennhurst, 465 U.S. at 106, 104 S. Ct. 900, which means that, if the Secretary's position in this case were accepted, it is doubtful that the claimants could ever obtain relief. Consider the three possible ways in which the federal court could resolve this case. One is that the federal court might reject the claim because it is inconsistent with state law. Another is that the federal court might reject the claim because, even though it is consistent with state law, the federal Constitution (or a federal law) prohibits the claimants from obtaining relief. The third possibility is that the federal court might agree with the claimants' interpretation of state law, might reject the Secretary's' federal-law defenses and might wish to grant the requested relief: an injunction preventing the Secretary from counting the disputed provisional ballots. But because the United States Constitution prohibits federal courts from enjoining state officials to follow state law, the court could not enter such an order. The only relief the federal courts could give in this instance thus would appear to involve the denial of the claimants' request for relief. "Heads I win, tails you lose" is not a traditional way, let alone a fair way, to apply the removal doctrine.
* * *
In the final analysis, this case does not present one of those "limited circumstances" where "a defendant may force a plaintiff into federal court despite the plaintiff's desire to proceed in state court." Mikulski, 501 F.3d at 560. By the terms of their complaint, the claimants raise only a state-law claim and disavow any reliance on federal law. Absent a substantial federal issue lurking beneath their claim, "we should take [the claimants] at [their] word." NicSand, 507 F.3d at 458.
Both parties, elbows drawn, accuse the other of engaging in forum shopping. But to the extent the lawyers for the parties wish to obtain the best forum for resolving their clients' claims, they are doing only what their professional obligations require. To the extent the parties are doing the same thing, the law expressly allows them to do so. The central premise of the well-pleaded-complaint rule is to facilitate forum shoppingto allow claimants to pick the law under which they seek redress, to pick the forum that they would like to resolve their claim and to have the courts (most of the time) respect those choices. See Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 831, 122 S. Ct. 1889, 153 L. Ed. 2d 13 (2002); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987).
Nor do we see any reason to think that a state-court forum for resolving this question of state law will favor one party over the other. In the 2008 calendar year, by our count, there have been at least six original actions decided by the Ohio Supreme Court involving the Secretary of State and interpretations of state law. Not only were none of these six actions removed to federal court, but the Secretary also has won three of them, lost two, and achieved mixed results in one. See State ex rel. Stokes v. Brunner, ___ N.E.2d ___, 2008 WL 4810591 (Ohio Oct. 16, 2008) (per curiam); State ex rel. Myles v. Brunner, ___ N.E.2d ___, No.XXXX-XXXX, (Ohio Oct. 2, 2008) (per curiam); State ex rel. Colvin v. Brunner, 120 Ohio St. 3d 110, 896 N.E.2d 979 (Ohio 2008), 2008 WL 4443962 (Ohio 2008) (per curiam); State ex rel. Lawrence County Republican Party Executive Comm. v. Brunner, 119 Ohio St. 3d 92, 892 N.E.2d 428 *480 (Ohio 2008) (per curiam); State ex rel. Summit County Republican Party Executive Comm. v. Brunner, 118 Ohio St. 3d 515, 890 N.E.2d 888 (Ohio 2008) (per curiam); State ex rel. Parrott v. Brunner, 117 Ohio St. 3d 175, 882 N.E.2d 908 (Ohio 2008) (per curiam). In a seventh case, we should point out, the defendant removed the case to federal court, but the district court remanded the case to the Ohio Supreme Court after concluding that the plaintiff's mandamus petition (as here) "d[id] not on its face state a claim arising under federal law," or necessarily "require resolution of substantial, disputed issues of federal law," but simply "ask[ed] the court to compel the Secretary to comply with her duties under state law." Ohio ex rel. Myhal v. Brunner, No. 2:08-cv-893, ___ N.E.2d ___, ___, 2008 WL 4647701, *1-2 (S.D.Ohio Oct.20, 2008).
The resolution of this dispute by the Ohio Supreme Court also does not prohibit the Secretary from asserting any relevant defenses, including the defense, if she wishes, of saying that the failure to count these provisional ballots would violate federal law. And if a federal defense is raised and the Ohio Supreme Court rejects it, the Secretary is free to attempt to seek review in the United States Supreme Court. See Bush v. Gore, 531 U.S. 98, 102-03, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000) (per curiam).
III.
For these reasons, we vacate the district court's opinion and remand the case to the Ohio Supreme Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353148/ | 117 Ga. App. 813 (1968)
162 S.E.2d 234
BUNTIN
v.
THE STATE.
43342.
Court of Appeals of Georgia.
Submitted January 10, 1968.
Decided May 9, 1968.
Rehearing Denied May 27, 1968.
Adams & Greenholtz, H. T. Greenholtz, Jr., for appellant.
W. B. Skipworth, Jr., Solicitor General, Frank K. Martin, for appellee.
HALL, Judge.
The defendant was convicted on an indictment in two counts each charging the defendant with burglary in breaking and entering a storehouse and place of business where valuable goods were contained.
The defendant contends that the conviction was contrary to the law and the evidence because there was no proof that either of the two buildings (involved in the two separate counts) contained valuable goods when the defendant broke and entered. There was evidence that one building contained a small safe in which there were a will and some stock certificates, and testimony that the other building contained a fan, venetian blinds, a telephone, a safe, crowbars, and screw drivers. There was no testimony that any of these articles were of any value.
1. Judge Arthur Gray Powell stated in Ayers v. State, 3 Ga. App. 305, 307-308 (59 S.E. 924): "The courts will not take judicial cognizance that any article is of value, unless the law itself so designates it. Johnson v. State, 109 Ga. 268 (34 S.E. 573); Wright v. State, 1 Ga. App. 158 (5), (57 S.E. 1050). However, value, just as any other matter of proof, may be shown circumstantially or inferentially, as well as directly or positively. Roberts v. State, 55 Ga. 220; Jenkins v. State, 50 Ga. 258; Irvin v. Turner, 47 Ga. 382; Carreker v. Walton, 47 Ga. 397; Allen v. State, R. M. Charlt. 520. . . The jury would have the right to infer that an engine and boiler, recently in actual use and about to be moved and put to work *814 again, part of a mill outfit worth $500, was of some value. Likewise, the circumstance that the defendant hired teams and men to move the property tends to negative the idea that it was valueless. `If a thing has value to the owner, though to no one else, to steal it is larceny, its value to the rest of the world being immaterial.' 2 Bish. Cr. Proc. § 751; Allen v. State, R. M. Charlt. 518; Ransom's case, 2 Leach, 1090. The interest which the constable had, in this case, in bringing the property to sale, so as to protect himself against rule for contempt, made each and every part of the property valuable to him. In the Johnson case, 109 Ga. 268 (34 S.E. 573) the court, in showing that judicial cognizance can not be taken of the fact that meat is a thing of value, gives the reason that some meat is not valuable, `as, for instance, decayed meat, or such as has not been properly prepared for food, or for any other reason is not useful.' Where the circumstances shown in the case are such as to indicate that an article, which according to common knowledge is usually useful, is, in the particular instance, in fact valuable, the reason of the rule ends, and the jury is authorized to find that the article in question is a thing of value. The early holding in this State that in simple larceny value must be alleged and proved (Davis v. State, 40 Ga. 230) is based upon the fact that such was the requirement of the common law at the time of its adoption in this State. It was never the precedent of the common law, however, to extend the rule to absurdity in requiring proof of value." (Emphasis supplied). "Direct proof of value, however, is not essential. Value may be shown by inference." Sudan v. State, 68 Ga. App. 752, 754 (23 SE2d 867); Matthews v. State, 26 Ga. App. 41 (2) (105 S.E. 383). "And `value', as the word is used in prosecutions of this kind, does not necessarily mean money value or market value." Gates v. State, 20 Ga. App. 171 (5) (92 S.E. 974); Mance v. State, 5 Ga. App. 229, 230 (62 S.E. 1053). Chief Judge Russell said in Edmondson v. State, 18 Ga. App. 233, 240 (89 S.E. 189), "I conclude, therefore, that anything, that is to say, any material object except man, which has any intrinsic value, however small, can be the subject matter of larceny from the house. It is not necessary that the thing should have what is known as a `market value,' in the sense that it would bring a price in the market. It is sufficient that it has any intrinsic value to the owner. For example, a photograph of a dead *815 friend, or a letter from my child, may have absolutely no market value, but it has an intrinsic value to me; and if any one enters my house and steals these objects from me he is guilty of larceny from the house." A safe is defined in Black's Law Dictionary, p. 1574, to be "A metal receptacle for the preservation of valuables." The evidence was sufficient to support the conviction.
2. Other enumerations of error concern charges to which no proper and timely objections were interposed, as required by Code Ann. § 70-207 (Ga. L. 1965, pp. 18, 31, as amended, Ga. L. 1966, pp. 493, 498). Hence, they will not be considered. Carnes v. State, 115 Ga. App. 387 (5), 392 (5) (154 SE2d 781).
Judgment affirmed. Felton, C. J., Bell, P. J., Eberhardt, Pannell, Deen and Whitman, JJ., concur. Jordan, P. J., concurs specially. Quillian, J., dissents.
JORDAN, Presiding Judge, concurring specially.
This court in Cannon v. State, 113 Ga. App. 701 (3) (149 SE2d 418), held that numerous items of personalty in a building as shown by a photograph thereof was sufficient to authorize a finding that such personalty had some value. In this case we need not rely upon a photograph since there was positive uncontradicted testimony that one of the buildings entered contained a safe, and that the other contained a safe, a set of venetian blinds, a telephone, a fan, crowbars, and screw drivers. Courts can take judicial notice of facts within universal common knowledge and experience. A mere modicum of common knowledge dictates the conclusion that the articles described above have some intrinsic value even though the exact value of the items is not shown.
The courts of this State have taken judicial notice that moonshine whisky is an alcoholic beverage manufactured contrary to law and has value; of the time when the sun rises and sets; that a cow is a female animal with cloven hoofs; that craps is a game played with dice; that crops mature in Georgia in late *816 summer and fall; that in Georgia tobacco is usually sold at auction in a warehouse; that many hogs are black and white spotted; that turpentine is not yielded by a cypress tree; that money is a thing of value; that a "quarter" as indicative of value means twenty-five cents; that the value of a dollar greatly decreased between October 1919 and May 1920; that poker chips used in a card game are things of value; and many other similar matters of common knowledge. Citations are omitted, but see annotations under Code § 38-112.
As Chief Judge Hill said in Sims v. State, 1 Ga. App. 776, 777 (57 S.E. 1029), "We do not think the intellect would be greatly fatigued in coming to the conclusion that the word `quarter,' as used in the testimony, meant twenty-five cents." Likewise we can see no great strain upon the intellect of this court in concluding that the buildings burglarized in this case contained property that was of some value, and that the jury was authorized to so conclude.
QUILLIAN, Judge, dissenting. 1. The first and second enumerations of error are that the judge erred in overruling the grounds of the appellant's motion for new trial that the verdict was contrary to the evidence and contrary to law. These two enumerations of error present the single contention that the evidence submitted upon the trial was not sufficient to prove every material element of the crime of burglary as alleged in the indictment.
If a place of business is burglarized and that place of business is not also a dwelling, mansion, or storehouse, then it must be alleged and proved that articles of value were stored or contained in the place of business. This allegation and proof is not necessary if the building burglarized is a dwelling, mansion or storehouse. This principle is well stated in Jones v. State, 12 Ga. App. 813, 814 (78 S.E. 474): "If the house alleged to have [been] broken and entered is not a `dwelling, mansion, or storehouse,' it must be alleged and proved to have been a place of business were valuable goods were contained or stored. Penal Code, § 146 [now Code § 26-2401]. It is sufficient to charge that a dwelling, mansion, or storehouse was broken and entered, without alleging that valuable goods were therein contained; but if *817 a place of business is broken and entered, and that place of business is not also a dwelling, mansion, or storehouse, then it must be alleged and proved that articles of value were stored or contained in the place of business. See Lee v. State, 56 Ga. 478; Lanier v. State, 76 Ga. 304."
The building in each count of the indictment was alleged to be a "storehouse and place of business." "Storehouse" within the meaning of Code § 26-2401 has been defined as: "a place where goods are stored or kept for sale at wholesale or retail, such as a shop or store." Mash v. State, 90 Ga. App. 322 (3) (82 SE2d 881); Coleman v. State, 61 Ga. App. 658, 660 (7 SE2d 212); Martin v. State, 95 Ga. 478 (20 S.E. 271). While the indictment alleged that the buildings were storehouses and places of business, the evidence failed to disclose that either the Columbus Body Works, Inc., or the Robert Edge Realty & Insurance Company were places where goods were stored or kept for sale at wholesale or retail. Therefore, we must reach the inescapable conclusion that the buildings were not storehouses within the meaning of the statute. The evidence did disclose that both buildings were places of business as alleged in the indictment. Hence, one of the essential elements of the offense charged in each count of the indictment was that the buildings contained valuable goods or other articles of value.
The principle that the mere proof that articles of personalty exist does not authorize the conclusion that they are "things of value," even though they be chattels commonly put to useful purposes and generally regarded as valuable, is succinctly stated and then explicitly explained in Johnson v. State, 109 Ga. 268 (34 S.E. 573). See also Davis v. State, 40 Ga. 229; Wright v. State, 1 Ga. App. 158, supra; Tyler v. State, 89 Ga. App. 535 (1) (80 SE2d 78). In the above cited cases involving burglary and larceny the appellate courts of this state would not take judicial cognizance of the fact that a safe, a white hog, seed cotton or meat were things of value.
The evidence adduced upon the trial, as is related in the foregoing statement of facts, showed that one building contained a small safe and the other a safe, a set of venetian blinds, a telephone, a fan and some tools. It was also shown that one of the *818 safes contained some papers, stock certificates and a will. No proof was submitted concerning the value of any of these articles, that is, that they were separately or collectively of any value. There being no evidence that either of the buildings contained valuable goods, one of the essential elements of the offense of burglary from places of business which were not storehouses was not proved.
The appellee cites the case of Cannon v. State, 113 Ga. App. 701, supra, as precedent for the position that where photographs of the interior of a building show various items of personalty are contained in the building the conclusion is authorized that the articles are of some value. The Cannon case is distinguishable from the case sub judice. In the present case the photographs were admissible only as showing the physical condition of the exterior of each building, because no witness testified that the pictures portrayed the contents of the building at the time the burglary was committed. It is further observed that while the photographs were identified by the witnesses only as showing the burglarized buildings, none are included in the record which was duly certified and transmitted to this court. However, one of the photographs in question which portrays the rear exterior of the building occupied by Columbus Body Works was attached to the appellee's brief. It does dimly show what appears to be an automobile or part of an automobile within the building, but there is no evidence as to when the picture was taken or that the automobile was in the building at the time of the burglary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353154/ | 147 S.W.3d 189 (2004)
Thomas SHOCKLEY, Movant-Appellant,
v.
STATE of Missouri, Respondent-Respondent.
No. 26132.
Missouri Court of Appeals, Southern District, Division One.
October 29, 2004.
*190 Mark A. Grothoff, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A Fichter, Assistant Attorney General, Jefferson City, for Respondent.
PHILLIP R. GARRISON, Presiding Judge.
Thomas Shockley ("Appellant") appeals from the denial of his Rule 29.15[1] motion for post-conviction relief in which he claims that he was denied effective assistance of both trial and appellate counsel. We affirm.
Appellant and his girlfriend, Janie Easling ("Easling"), became stranded in North Carolina during 2000 without a car. Nancy Loudermilk ("Loudermilk"), Easling's aunt, went to North Carolina and brought them back to Dixon, Missouri, where they began living in a mobile home on Loudermilk's property. Eunice Blythe ("Blythe"), Loudermilk's daughter also lived on the property and owned a 1995 Mazda 626 LX.
On the morning of December 8, 2000, Blythe, Appellant, and Easling all rode to work in Loudermilk's Ford Explorer, driven *191 by Blythe because her car had a bad tire. After working for a couple of hours, Appellant asked Blythe to take he and Easling home because he was sick. Blythe did so and returned to work.
Loudermilk returned home from work at about 5:30 P.M. When she got home, she noticed that the lock on her front door had been picked. After looking through the house, she discovered that several things were missing and called the police. Deputy Buddy Thompson of the Maries County Sheriff's Department went to the Loudermilk house and found that someone had used a screw driver to open the door. When Blythe got home at around 6:30 P.M., Deputy Thompson asked her to check and see if anything was missing from her home. Blythe discovered that her car was missing as well as the set of keys she kept in her purse. Deputy Thompson went to Appellant and Easling's mobile home, but they were gone. Deputy Thompson then reported Blythe's car as stolen. Easling testified that she entered the Loudermilk home without permission and took a set of keys to Blythe's car that were kept there. She also testified that while she and Appellant were in North Carolina they had a new set of tires put on the car.
On December 12, 2000, Appellant and Easling were discovered sleeping in a maroon Mazda 626, with Missouri license plates, on a hotel parking lot by Corporal Keith Webster ("Officer Webster"), of the Hillsborough, North Carolina Police Department. Officer Webster awakened them and obtained identification from Appellant. Officer Webster noticed Appellant and Easling putting on their shoes as he ran a computer check on Appellant's identification and the license on the Mazda. The Mazda then left the parking lot just as Officer Webster was learning that the car had been reported stolen, and Officer Webster followed in pursuit. Appellant and Easling eventually abandoned the car and attempted to escape, but Officer Webster was able to tackle Appellant and place him under arrest. It is not clear from the record, but Easling was also apparently apprehended at some point. Appellant told Officer Webster that the reason he ran was because the car was stolen. Blythe later identified the stolen vehicle as hers and indicated that some items that she kept hanging on the rear-view mirror were in the trunk of the car when it was returned to her.
Appellant was charged with the felonies of stealing, under Section 570.030,[2] and burglary in the second degree, under Section 569.170, with both alleging that he acted in concert with Easling. A jury found Appellant guilty of both charges, and the trial court sentenced Appellant to twelve years for each charge, to run concurrently. Appellant's conviction was affirmed in State v. Shockley, 98 S.W.3d 885, 892 (Mo.App. S.D.2003). Appellant timely filed a motion for post-conviction relief pursuant to Rule 29.15. An evidentiary hearing was held, and the motion court issued its findings of fact and conclusions of law, denying Appellant's motion. This appeal followed.
Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Parham v. State, 77 S.W.3d 104, 106 (Mo.App. S.D. 2002). "Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Middleton v. State, 80 S.W.3d 799, 804 (Mo. banc 2002) (quoting *192 Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000)).
Appellant presents two points on appeal. In his first point, Appellant claims that he was denied effective assistance of counsel when his attorney on direct appeal failed to assert the claim that there was insufficient evidence to support his conviction for stealing. Appellant claims that the evidence presented at trial was insufficient for the jury to conclude that the vehicle in which Appellant and Easling were found in North Carolina was the vehicle that was stolen from Blythe. According to Appellant, the testimony of Blythe at trial only established that her car that was stolen was returned to her. He also contends that Corporal Webster's statement at trial, "I noticed a maroon 2000excuse me, a maroon 626 with two people sleeping in it," shows that the vehicle Appellant and Easling were found in was a 2000 model, and not the 1995 model owned by Blythe.
The State asserts that Appellant's appellate counsel acted as a reasonably competent attorney by raising four claims on appeal, two of which challenged the sufficiency of the evidence to support Appellant's convictions for burglary and stealing. Shockley, 98 S.W.3d at 890-891. Furthermore, the State claims that there was sufficient evidence from which the jury could find that Appellant was driving Blythe's car because of Easling's testimony that she broke into the Loudermilk's home, stole the keys for Blythe's car, and that she and Appellant fled in the car to North Carolina. Also, the evidence showed that Easling and Appellant lived together, without a car, and were taken to work on the morning of the theft by Blythe, leaving her Mazda 626 LX home, who then brought them home early. That car was missing at 5:30 P.M., however, along with Appellant and Easling, after they returned home early from work. Appellant and Easling were also found, asleep in North Carolina, in a Mazda 626 LX, which they used to flee from the police. The State claims this evidence is more than sufficient to show that the car in which Appellant and Easling were found was Blythe's.
In order for a criminal defendant to be granted post-conviction relief on the basis of ineffective assistance of counsel, the defendant must demonstrate that "his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances, and that he was thereby prejudiced." Parham, 77 S.W.3d at 106 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
To support a [Rule 29.15] motion due to ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. The right to relief ... due to ineffective assistance of appellate counsel inevitably tracks the plain error rule, i.e. the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice.
Middleton, 80 S.W.3d at 808 (quoting Moss, 10 S.W.3d at 514-15).
On direct appeal, Appellant's appellate counsel raised two points challenging the sufficiency of the evidence relating to his convictions for burglary and felony stealing. Shockley, 98 S.W.3d at 889-890. In that appeal, we determined that there was sufficient evidence for the jury to find Appellant guilty of felony stealing. Id. at 889-891. For a complete discussion of the *193 sufficiency of the evidence on the felony stealing conviction, see Id. at 889-891.
Since Appellant's appellate counsel actually raised sufficiency of the evidence to support Appellant's conviction for felony stealing as a point on appeal, and we held that there was sufficient evidence, we clearly cannot hold that Appellant's appellate counsel was ineffective as contended in the point. Accordingly, Appellant's first point is denied.
In his second point, Appellant claims that the motion court clearly erred in denying his motion for post-conviction relief because his trial counsel failed to object to lay witness Peggy Landreth's ("Landreth") prejudicial opinion that Easling was not capable of committing the charged crimes by herself, and to the State's closing argument referring to Landreth's statement. Appellant claims that Landreth's statement was an unqualified lay opinion which constituted an improper comment on Easling's credibility and an improper conclusion as to the ultimate issues in the case.
At trial, Appellant called Landreth as his final witness. Landreth was a friend of Loudermilk's son and also lived on Loudermilk's property. It appears from her testimony that she was called in order to show that the Loudermilks and Blythe did not like Appellant and did not like the fact that Appellant was dating Easling. On cross-examination by the State, Landreth was asked, "And you don't actually believe that Janie [Easling] was capable of doing this by herself, do you?" To which Landreth replied, "No." Appellant's trial counsel did not object, but asked Landreth on redirect, "Well, ma'am, that then is just an opinionisn't that correct?" To which Landreth replied, "Yeah." Appellant's trial counsel further inquired, "Andokaythat's purely your opinionisn't that correct?" To which Landreth replied, "Uh-huh." In closing argument, the prosecutor commented on Landreth, stating, "she knew [Easling] and it would have been her opinion that [Easling] couldn't or wouldn't have done this all by herself." Once again, Appellant's counsel did not object.
Appellant claims that his trial counsel was ineffective for failing to object to Landreth's statement and the Prosecutor's statement in closing. Appellant claims that this statement invaded the province of the jury by drawing a conclusion as to the ultimate issue in the casewhether Easling committed the crimes herself or if she was assisted by Appellant in some manner, and that Landreth's testimony was an improper comment on Easling's credibility. Appellant argues that a competent attorney would have objected to the testimony on this basis and sought corrective action, and that if he had done so, the jury would not have been allowed to consider or the State allowed to comment on Landreth's unqualified opinion. Furthermore, Appellant argues that the failure to object was not a strategic decision because his trial counsel testified at the post-conviction relief hearing that it was wrong for him not to object and his failure to do so was based on his own negligence.
The State argues that Landreth's testimony was not a lay witness opinion, but a comment on the facts within her personal knowledge and her comprehension of what she observed about Appellant and Easling's relationship. The State points out that Landreth was called by Appellant and that the State had the right to cross-examine her about the relevant facts of the case and to impeach Appellant's theory that he was not involved in the crimes. Finally, the State argues that even if Landreth's testimony was objectionable, Appellant cannot show that he was prejudiced by counsel's failure to object because of the *194 overwhelming evidence of his guilt and participation in the crimes.
The test for ineffective assistance of trial counsel is similar to that for ineffective assistance of appellate counsel. The movant must show that "his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances, and that he was thereby prejudiced." Parham, 77 S.W.3d at 106 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. "The mere failure to object does not constitute ineffective assistance of counsel." State v. Lumpkin, 850 S.W.2d 388, 395 (Mo.App. W.D.1993). When counsel fails to object, even when that objection would have been meritorious, counsel is not necessarily incompetent. Id. "The failure to object constitutes ineffective assistance of counsel only where the comment was of such a character that it resulted in a substantial deprivation of the accused's right to a fair trial." State v. Link, 965 S.W.2d 906, 912 (Mo.App. S.D. 1998) (quoting State v. Taylor, 831 S.W.2d 266, 272 (Mo.App. E.D.1992)). Furthermore, trial counsel often "do not object to otherwise improper questions or arguments for strategic purposes" because frequent objections might "irritate the jury and highlight the statements complained of, resulting in more harm than good." State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996).
The general rule is that opinion testimony is inadmissible when the trier of fact is as capable as the witness to draw conclusions from the facts provided. State v. Gardner, 955 S.W.2d 819, 823 (Mo.App. E.D.1997). Opinion evidence from lay witnesses may be admissible, however, when the witness forms the opinion from facts personally observed "where it is impossible or impracticable to place the facts before the jury in such a way that the jury may draw its own conclusion from the facts." State v. Brown, 683 S.W.2d 316, 317-318 (Mo.App. S.D.1984). "An observer is permitted to state natural inferences from observed conditions or occurrences or the impression made on his mind by a number of connected facts whose detail cannot be placed before the jury." Id. at 318. However, a lay person may not give an opinion when "it has the effect of answering the ultimate issue the jury is to determine." State v. Cason, 596 S.W.2d 436, 440 (Mo. 1980).
Here, Landreth testified to her belief that Easling was incapable of committing the crimes charged alone. This testimony indicates that Appellant must have acted with Easling in commission of the crimes because she could not do it herself. Appellant argues that the testimony, in itself, should have been inadmissible. While the statement, and the Prosecutor's repetition of it in closing argument, might have been objectionable, we do not find it to have resulted in such a substantial deprivation as to have prevented Appellant from receiving a fair trial. That being said, Appellant's counsel, instead of objecting to Landreth's testimony, highlighted for the jury that her statement was only her opinion.
Furthermore, the motion court found, and we agree, that even if Appellant's counsel had objected, it is unlikely that the result would have been any different because of the substantial other evidence of Appellant's guilt. The jury heard evidence showing Appellant and Easling's relationship; that they left work early on the day that Blythe's car was stolen; that *195 Blythe's keys were missing; that they were found sleeping in a Mazda 626 in North Carolina and subsequently ran from the police; that Appellant admitted that the vehicle was stolen; and that Easling admitted breaking into Loudermilk's home and stealing the keys for Blythe's car. Appellant's second point on appeal is denied.
The motion court did not clearly err in denying Appellant's motion for post-conviction relief and its judgment is affirmed.
PREWITT, J., and RAHMEYER, J., concur.
NOTES
[1] All rule references are to Missouri Rules of Criminal Procedure (2003) unless otherwise noted.
[2] All statutory references are to RSMo (2000) unless otherwise noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353163/ | 147 S.W.3d 767 (2004)
Clara SMITH, by and through her Next Friend, Jo Ann STEPHAN, Respondent,
v.
AF & L INSURANCE COMPANY, Appellant.
No. ED 83685.
Missouri Court of Appeals, Eastern District, Division Three.
August 24, 2004.
Motion for Rehearing and/or Transfer Denied September 28, 2004.
Application for Transfer Denied November 23, 2004.
*770 William P. Nacy, Jefferson City, MO, for appellant.
Mark A. Richardson, Jefferson City, MO, for respondent.
Before MARY R. RUSSELL, P.J., WILLIAM H. CRANDALL, JR., J., CLIFFORD H. AHRENS, J.
Motion for Rehearing and/or Transfer to Supreme Court Denied September 28, 2004.
*771 PER CURIAM.
AF & L Insurance Company ("Insurer") appeals from the judgment entered against it by the Circuit Court of Osage County, finding that it breached its long-term care insurance contract with Clara Smith ("Insured") and awarding her damages based upon her life expectancy and vexatious refusal to pay. We affirm in part and reverse and remand in part.
The parties do not dispute the underlying facts. Insured is a woman who was a month away from her 79th birthday when she applied for a replacement long-term care policy with Insurer in the fall of 1999. Her husband of 53 years had died five years earlier. After his death, she began to suffer for a period of time from situational depression.
Insurer's agent, Craig Walkenbach ("Agent") went to Insured's home in September 1999 to go over an application for long-term care insurance with Insured and her daughter, Jo Ann Stephan ("Daughter"). Insured was covered at the time by another long-term care policy from American Fidelity Assurance, which she had also purchased through Agent. The new policy was to replace the American Fidelity Assurance policy, which was scheduled to expire the following January.
Agent asked Insured questions and he wrote the answers on the application, which Insured then signed. In a section of the application entitled "Medical Information," question 4 asked, "[w]ithin the past [five] years, have you received any medical or surgical advice, examination or treatment for:... b.) Parkinson's Disease, Stroke, Transient Ischemic (TIA), Epilepsy, Seizures, Alzheimer's Disease, Dementia, Senility, Forgetfulness, or any other Brain, Mental or Nervous Disease or disorder?" The "no" box next to this question was checked. The application reflected Insured was taking Paxil, and the record on appeal indicates that this was prescribed in relation to the situational depression she had been suffering since her husband's death. Insured also provided Agent with an authorized release for her medical records from her physician, Peter Boyer, M.D., although Insurer did not review the records until after Insured's claim was filed.
Insured told Agent that she did not remember things like she used to. He asked her how her memory was and she stated that she was 79 years old and that she forgot things sometimes, such as where she put her car keys and the day of the week. Agent indicated that such lapses in memory were minor and asked about more serious issues. He asked Insured if she had ever been told she had Alzheimer's, dementia, "and some other things there." She replied she had not. He then asked Daughter the same question, to which she responded, "[n]o, I never was told that [Insured] had Alzheimer's or dementia or anything like that."
After the application was submitted to Insurer, another employee conducted an interview with Insured over the telephone later that month, and filled out a corresponding form entitled Personal History Narrative. It was Insurer's policy to conduct such interviews prior to issuing policies. A question on the form asked, "[d]o you have trouble remembering things?" The answer, as written by Insurer's employee, was "[n]o, except for minor forgetfulness."
In addition to questions addressing the same subject matter as the initial application, the Personal History Narrative also included a cognitive exam in which Insured was asked questions such as the names of the current and prior president and her telephone number. She answered correctly each question on the cognitive test. All *772 of Insured's other answers were consistent with the information provided in the initial application. She was accepted for coverage and received the policy, but was required to pay a higher premium because she had arthritis and was taking Paxil for mild depression and "nerves."
Insured paid her premiums for two years, totaling $8,533.38, until she moved to Westphalia Retirement Center on October 18, 2000. The reason for her admission was stated as "mood dementia osteoarthritis" with forgetfulness. Daughter filed a claim with Insurer on her mother's behalf, the receipt of which was acknowledged shortly thereafter. Subsequently, in correspondence dated December 27, 2000, Insurer indicated that it was seeking further information from Insured's health care provider, and that the claim would be processed upon receipt of that information.
The following January, Insurer declared the policy null and void, citing "lack of full disclosure on the application on which the policy was issued." The letter also indicated that, had there been full disclosure and the application questions been properly answered, the policy would not have been issued. Insurer returned to Insured a check in the amount of premiums paid, which she did not negotiate. Insured, by and through Daughter, filed suit alleging breach of the insurance contract and for statutory damages for vexatious refusal to pay.
At bench trial, Insurer offered the testimony of Jeffery Jones, its underwriting manager ("Underwriter"). He stated that the prescription for Paxil, disclosed on the application, would not cause further investigation because it is well-known in his field that someone who loses a loved one may suffer from situational depression. Underwriter testified, however, that if the answer to application question 4-b.) regarding memory loss and dementia had been "yes," he would have recommended that his company not issue the policy. He stated that, under Insurer's underwriting guidelines, individuals with Alzheimer's disease, dementia, or senility would not be accepted for coverage. When asked if forgetfulness factored into the decision to accept a risk, he replied, "[i]t does if it leads to one of those conditions." His testimony also established that minor forgetfulness is not grounds for denying an application. Rather, he indicated that forgetfulness is "such a common occurrence, and it's a well-known fact that that's not going to create a problem for us." Nevertheless, Underwriter responded in the negative when asked by the court if underwriters considered that people with forgetfulness may forget that they are forgetful.
On cross-examination, Underwriter acknowledged that he had not seen any medical records indicating that Insured had dementia or senility, nor was he aware of any such diagnosis prior to her admittance to Westphalia. He indicated, however, that had he been aware of Dr. Boyer's notation in Insured's medical records stating, "I wonder if this could be pseudodementia from depression," the application would have been rejected. Underwriter also provided the court with a definition of "post-claims" underwriting, which he stated occurs "if you didn't have all the pertinent information up front and then afterwards you went back and got the information."
The court also heard the testimony of Saul Rose, D.O., a licensed physician and consultant to Insurer, who had requested that he review Insured's medical records. He found no evidence of testing for dementia in her records. Moreover, Dr. Rose stated that there is no test for pseudodementia and that it is not a recognized condition, but a "descriptive" term used to describe a physician's impressions of what *773 may be a type of dementia. He noted, however, that the records indicated that Insured had taken Aricept for a "transient" memory problem related to anesthesia following her knee surgery in May 1999. Aricept is used to treat memory loss related to Alzheimer's disease. If Insurer had this information, he stated, the policy would not have been issued. This testimony was consistent with that of Insurer's claims supervisor. Dr. Rose also determined that, according to the medical records, Insured's memory loss was related to the situational depression she suffered since her husband's death and he acknowledged that "depression can have within it a component of minor forgetfulness."
Insured's medical records indicate that her memory problems vacillated between mild, improving, and extremely poor between May of 1998 and November of 2000. Dr. Boyer attributed the memory problems to depression she suffered after her husband's death. His notes from an examination of Insured about a week before she applied for insurance noted mild memory problems, but stated that her depression was resolved and that she was functioning normally.
The trial court found that Insured had made a prima facie case for coverage and that Insurer had vexatiously refused to pay under the policy. Judgment was entered in favor of Insured for $71,023.81 for past due benefits under the policy, $8,828.48 in prejudgment interest on that amount, $8,135.22 in statutory damages for vexatious refusal to pay, $15,000 in attorney's fees, and prospective coverage based upon Insured's life expectancy of 7.8 years and a 10% statutory penalty assessed on that amount totaling $249,590. The aggregate damage award was $352,577.51. This appeal follows.
Insurer raised three allegations of error. First, it alleges that the trial court erred in finding that Insured made no material misrepresentation on her application for insurance. Next it alleges error in the awarding of statutory damages and attorney's fees for vexatious refusal to pay. In its final point, it argues that the prospective award based upon Insured's life expectancy had no basis in the law.
Because this was a court-tried case, we follow the standard of review articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or applies the law. Id. Our review however, "is not undertaken with unfettered discretion." Foster v. Vill. of Brownington, 140 S.W.3d 603, 609 (Mo.App. W.D., 2004). Under Rule 84.13(d), we defer to the trial court's opportunity to judge the credibility of witnesses. Although we generally defer to the trial court's findings of fact, we review conclusions of law without deference to the trial court. Kessler-Heasley Artificial Limb Co., Inc. v. Kenney, 90 S.W.3d 181, 184 (Mo.App.2002). Our review of whether the trial court properly declared or applied the law to the facts presented is independent. Ridgway v. TTnT Dev. Corp., 126 S.W.3d 807, 813 (Mo.App.2004).
In its first point, Insurer alleges that the trial court erred in finding that Insured had not made material misrepresentations on her application for insurance, and in finding that it had a duty to verify the truth of her averments on the insurance application. It argues instead that her misrepresentations barred her recovery under the policy. Insured argues that there was no misrepresentation, material or otherwise that would justify rescission.
*774 The burden of proving that coverage exists falls upon the insured. Trans World Airlines, Inc. v. Assoc. Aviation Underwriters, 58 S.W.3d 609, 621 (Mo.App.2001). The insured establishes his prima facie case by showing: (1) issuance of the policy; (2) delivery of the policy; (3) payment of the premium; (4) the loss insured against; and (5) notice of loss and proof of loss given to insurer as the policy requires. Shaffer v. Federated Mut. Ins. Co., 903 S.W.2d 600, 604-05 (Mo.App.1995) (quoting Nixon v. Life Investors Ins. Co. of Am., 675 S.W.2d 676, 679 (Mo.App.1984)). There is no dispute that Insured presented a prima facie case for coverage under her long-term care policy. The issue here is whether Insured was entitled to rescind the policy based upon Insured's alleged misrepresentation about her memory.
Misrepresentation is an affirmative defense and an insurer bears the burden of proof. Cont'l Cas. Co. v. Maxwell, 799 S.W.2d 882, 888 (Mo.App.1990). Missouri law allows an insurer "to avoid a policy when the application, containing a material misrepresentation, is incorporated by reference into and attached to the policy." Id. In Continental Casualty, the court described the insurer's burden. It stated:
Missouri law requires the insurance company to demonstrate that a representation is both false and material in order to avoid the policy when (1) the representation is warranted to be true[;] (2) the policy is conditioned upon its truth[;] (3) the policy provides that its falsity will avoid the policy[;] or (4) the application is incorporated into and attached to the policy. Otherwise, the insurance company must demonstrate that the representation in the application was false and fraudulently made in order to avoid the policy.
Id.
In determining materiality, the inquiry is not whether the misrepresentation actually affected the insurer's decision, but whether "it would have influenced a reasonably careful insurance company's decisions concerning the acceptance of risk and what premium to charge[.]" Adams v. Columbia Mut. Ins. Co., 978 S.W.2d 10, 11 (Mo.App.1998). A misrepresentation is material if an insurer, "acting reasonably and naturally in accord with [its] custom and practice, would have relied on the representation." Id.
Our statutes further define the nature of misrepresentations made in the procurement of insurance. Sections 376.580 and 376.800 RSMo 2000[1] cover life, accident, and health insurance contracts, respectively. They provide that no misrepresentation shall be deemed material or render a policy void unless the matter misrepresented actually contributed to the event triggering the policy's benefits. Sections 376.580 and 376.800.[2] From our statutory *775 provisions, it is clear that the subject matter of the alleged misrepresentation must be related to the event for which the claim was ultimately filed.
The application Insured signed stated:
The undersigned applicant and agent state that the applicant has read, or had read to him/her, the completed application and that the applicant further understands that failure to reveal complete information about existing health conditions and/or any missing and/or inaccurate information or fraudulent statement in the application may result in loss of coverage under the policy.
Therefore, in order to establish its defense, Insurer need only prove that Insured's representations were false and material. Hite v. Am. Family Mut. Ins. Co., 815 S.W.2d 19, 22 (Mo.App.1991).
We first address whether the representations on the application were false. Id. Insured and Agent filled out the application for a long-term care policy on September 8, 1999. She had seen Dr. Boyer a week before on August 30, 1999.[3] In that visit, he noted that she had only "mild" memory problems, her depression was "resolved," and she was functioning "completely normally." Almost two months prior, on July 1, 1999, Dr. Boyer acknowledged that Insured was suffering from extremely poor memory that may have been getting worse. He indicated that she had been hospitalized and had been doing physical therapy following her knee surgery. She had also been taking Aricept for "transient" memory problems related to anesthesia used in surgery, but Dr. Boyer took her off of this medication. Moreover, in a letter to Insurer in February 2001, Dr. Boyer stated that Insured did not have Alzheimer's disease and that her mental status was normal. He stated that transient memory loss due to anesthesia was treated with Aricept. None of the medical records address treatment for memory loss although the records acknowledged memory improvement from treatment for depression.
Insurer claims that if it had notice that Insured had been taking Aricept, it would have denied her application and not issued a policy. We find, however, that Insured was prescribed Aricpet in relation to her knee surgery and that the prescribing physician was not Dr. Boyer, her primary provider. Although the record is unclear as to exactly how long Insured was taking the medication, it is clear that her knee surgery occurred in May 1999. Dr. Boyer saw her on July 1, 1999, and, at this appointment, he determined that she was taking too many medications, and took her off the drug. Insured took Aricept only for a few weeks. When she was taken off of it, her condition improved. Moreover, she was not taking the drug in relation to dementia. Instead, it was used to a treat a memory problem associated with anesthesia. Blanket denial of an application for this medication leaves no margin of error and would withhold coverage for an *776 insured who was placed on a medication for any length of time, by any physician. Such a practice would deny coverage for any person who has ever been misdiagnosed or over-medicated. In light of these circumstances, the presence of Aricept in Insured's records is not indicative of treatment for dementia, Alzheimer's disease, or forgetfulness, nor does it suggest she misled Insurer.
Insurer cites Hite in support of its argument that "[e]ven if [Insured's] contentions were innocently made, they are indisputably false in that her medical records clearly and unequivocally state that she suffered from poor memory for well over a year before she applied for insurance with [Insurer]." (emphasis added). This contention is incorrect. Both Agent and Daughter testified that Insured told Agent that her memory was deteriorating. Daughter recalled that Agent had asked whether Insured had been diagnosed with various neurological disorders, which she had not. During Agent's trial testimony, he stated that Insured indicated that she didn't remember things like she used to, a statement that did not result in him checking "yes" next to the question which asked whether the applicant has been treated for various neurological disorders. Instead, he stated, when an applicant reports poor memory, he then "would ask if they're under treatment or medicated for that." Insured's stating that she was not being medicated or treated for forgetfulness was consistent with the medical records. Moreover, Underwriter stated in an affidavit that "minor forgetfulness" was not a barrier to coverage, particularly in the senior market.
We also take into account Underwriter's statement that forgetfulness may factor into underwriting if it leads to Alzheimer's disease, dementia, and senility. This statement acknowledges some degree of post-claims underwriting in the senior market, and we find this practice unacceptable. Insurer's hindsight was very convenient when faced with liability for Insured's claim. See Liberty Life Ins. Co. v. Schaffer, 660 F. Supp. 114, 118 (E.D.Mo.1987), aff'd in part, rev'd in part, 853 F.2d 591 (8th Cir.1988).
Dr. Boyer treated Insured for situational depression. She was not treated for memory loss. In fact, when Dr. Boyer took her off Aricept, her memory improved as her depression lessened. In her most recent visit to her doctor prior to applying for the long-term care policy, she complained of only "mild" memory problems, consistent with her admission to Agent that she was forgetful. Insured's statements that she was not being treated for dementia, senility, or forgetfulness, were not rendered misrepresentations by the fact that the medication prescribed for her depression, Paxil, alleviated her forgetfulness.
Insurer discusses the term pseudodementia as a diagnosis for brain disease for which Insured received treatment. This argument mischaracterizes the evidence. Insurer's own witness acknowledged that pseudodementia was not a recognized medical condition. Additionally, the term was used once in Dr. Boyer's records when he stated, "I wonder if this could be pseudodementia from depression...." This statement was not a diagnosis. It was merely a thought for his reference. If we were to interpret this statement as a diagnosis, as Insurer suggests, it would penalize patients by denying them eligibility for coverage based on impressions, not diagnoses, contained in their medical records.
We find that Insured's representations were not false. In light of this conclusion, we need not determine whether they were material, nor do we need to determine whether the representations were related *777 to the condition that ultimately led to the filing of the claim.
Forgetfulness, unlike medical diagnoses, is an extremely subjective concept. We agree with the trial court's finding that the "contrast between the post claims review process and all its rigidity with the looseness of the underwriting process of [Insurer] when the application was reviewed is remarkable." As such, we find, as did the trial court, that Insured made no misrepresentation, material or otherwise, on her application for coverage.
Insurer also takes issue with the trial court's finding that Insurer failed to use due diligence to investigate Insured's medical history. It states that that there is "no case in this nation" where an insurer has been required to verify information on an application, and indeed, we acknowledge that insurers generally are not required to make further inquiry where the application is complete on its face. See Moreland v. State Farm Fire and Cas. Co., 662 S.W.2d 556, 566 (Mo.App.1983). This situation is distinguishable, however, because Insurer did in fact inquire beyond the application.
Underwriter stated on examination by the court that the decision to request medical records is within each underwriter's discretion and depends upon "what they're getting from the application and from the telephone interview." The personal history narrative included a basic cognition test, which Insured passed, answering each question correctly. Her ability to successfully complete this test was consistent with her physician's statements of August 1999 that she was functioning "completely normally." Finding for Insurer in this instance would penalize Insured for Insurer's underwriter's failure to exercise its discretion and we will not do so. Insured will not be penalized where lax underwriting standards, such as discretionary review of medical records, give way to rigid claims review.
Insurer's argument also mischaracterizes the nature of Insured's medical history and treatment. Throughout its brief, Insurer continually refers to Insured's "diagnosis and treatment" for poor memory. These terms are misused. "Poor memory" and "forgetfulness" are not medical diagnoses, rather they are subjective symptoms, which, Insurer acknowledged, are common among the senior population. Nor do the records suggest that Insured was "treated" specifically for any memory problems. Insured's diagnosis was for situational depression which led to forgetfulness. Her treatment was for depression. The fact that her memory improved while being treated for depression was a collateral benefit. We find Insurer wrongly rescinded its policy with Insured.[4] Point one denied.
In its second point, Insurer argues that the statutory award for damages of $8,135.22 and attorney's fees in the amount of $15,000 for vexatious refusal to pay was in error because it presented a valid defense in good faith. It argues that it was entitled to judicial determination of its liability without incurring a penalty.
There are two statutory provisions relevant to this discussion. Section 375.296 authorizes damages for vexatious refusal where an insurer refuses to pay a claim after 30 days and it appears from the *778 evidence that the refusal was vexatious and without reasonable cause. Section 375.420 also describes vexatious refusal to pay. It states:
In any action against any insurance company to recover the amount of any loss under a policy of automobile, fire, cyclone, lightning, life, health, accident, employer's liability, burglary, theft, embezzlement, fidelity, indemnity marine or other insurance except automobile liability insurance, if it appears from the evidence that such company has refused to pay such loss without reasonable cause or excuse, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not to exceed twenty percent of the first fifteen hundred dollars of the loss, and ten percent of the amount of the loss in excess of fifteen hundred dollars and a reasonable attorney's fee; and the court shall enter judgment for the aggregate sum found in the verdict.
As this section is penal in nature, we construe it strictly. Mears v. Columbia, 855 S.W.2d 389, 394 (Mo.App.1993). Although the statute's purpose is to compel insurers to deal in good faith, it should not be construed in a way to inhibit bona fide defenses. Crewse v. Shelter Mut. Ins. Co., 706 S.W.2d 35, 46 (Mo.App.1985) (Dixon, J., dissenting). In order to receive damages under the statute, an insured must prove that insurer's refusal to pay was willful and without reasonable cause as it would appear to a reasonable and prudent person. JAM Inc. v. Nautilus Ins. Co., 128 S.W.3d 879, 897 (Mo.App.2004). This determination is based upon a "general survey and a consideration of the whole testimony and all the facts and circumstances in connection with the case." DeWitt v. Am. Family. Mut., 667 S.W.2d 700, 710 (Mo. banc 1984). An insurer's ultimate liability under the policy is not determinative of whether the refusal was vexatious. JAM, 128 S.W.3d at 897. Rather, this determination must be based upon the facts present at the time the claim was filed under the policy. Id. at 897-98.
An insurer may question or contest its liability "if it has reasonable cause to believe, and does believe, that it has no liability under the policy and that it has a meritorious defense." Id. at 898. The presence of a litigable issue, however, does not preclude imposition of the statutory penalty where there is evidence that the insurer's attitude was vexatious or recalcitrant. DeWitt, 667 S.W.2d at 710. The fact finder may consider, among other things, the insurer's reason in denying the claim. JAM, 128 S.W.3d at 898. The insurer's justification for denying the claim must be reasonable. Russell v. Farmers & Merch. Ins. Co., 834 S.W.2d 209, 221 (Mo.App.1992).
When Insured's first claim under the policy was filed, she was 80 years old and had been admitted to a long-term care facility for dementia and osteoarthritis. Initially we note that, given that Insured was elderly, denial of her claim on the basis of forgetfulness was not for reasonable cause, as it would appear to a reasonable and prudent person. Insurer provided truthful information on her application, and submitted to a follow-up interview, and successfully completed Insurer's cognitive exam. Moreover, insisting that Insured misled Agent when she acknowledged her memory problem at the application stage and made her medical records available, suggests post-claims underwriting.
In this case, Insurer's actions at the time the policy was issued are also relevant. Insurer's underwriting guidelines addressed replacement policies and required that, where a policy is issued to *779 replace another, the application must be accompanied by a Replacement Form and Comparison Form.[5] Daughter testified that when Insured and Agent filled out the application for Insurer's long-term care policy, he explained the differences in the two policies including features in the new policy that were not present in the American Fidelity long-term care policy, which the new policy replaced. Neither Daughter nor Agent recalled whether a replacement form had been executed. After applying for and receiving coverage under Insurer's long-term care policy, Insured allowed the American Fidelity policy to lapse.
Insurer did not adhere to its protocol in issuing the new policy, allowed the effective policy to lapse, and then claimed misrepresentation and rescinded the new policy. It acted in contravention of its guidelines, allowing Insured's existing policy to lapse in reliance that her risk would be covered by the new policy, and then denied coverage under the new policy. Such a practice defeats Insurer's claim that it had a meritorious defense. Additionally, given Insured's current health, she will be unable to procure long-term care insurance coverage from another source. In light of these facts, we find Insurer's actions were vexatious and recalcitrant.
Next we address the award of attorney's fees under Sections 375.296 and 375.420. To recover attorney's fees for vexatious refusal to pay, an insured's claim must be supported by pleadings and sustained by proof. Russell, 834 S.W.2d at 223. Although Insurer argues that the award of attorney's fees was in error, its assertion was not supported by authority or argument. Insured's request for attorney's fees was properly pled and supported by exhibits. We conclude the award was not in error.
The trial court's award of statutory damages and attorney's fees for vexatious refusal to pay is affirmed. Point two is denied.
In its third point, Insurer argues that the trial court erred in awarding Insured damages based on her projected life expectancy of 7.8 years. The trial court awarded Insured $249,590 in accelerated damages based upon her life expectancy of 7.8 years at the time of the trial. This sum was arrived at by reducing to the present value the amount of benefits due Insured under the policy at a rate of $90 per day multiplied by her life expectancy, plus a statutory penalty of ten percent. Insurer asserts that there was no legal basis for this remedy in a breach of contract action. Additionally, it alleges that there is no legal basis for the "statutory penalty of 10 percent" of the life expectancy award.
The purpose of a breach of contract action is to restore the non-breaching party to the position she would have occupied had the breaching party fully performed on the contract. Boten v. Brecklein, 452 S.W.2d 86, 93 (Mo.1970), questioned on other grounds by Sands v. R.G. McKelvey Bldg. Co., 571 S.W.2d 726 (Mo.App.1978). In a breach of contract action, however, the law cannot elevate the non-breaching party to a better position *780 than she would have enjoyed had the contract been completed on both sides. Id. While we appreciate the trial court's desire to guarantee that Insured is compensated for her long-term care expenses as bargained for in her insurance policy, an award based on Insured's life expectancy provides her relief beyond that available in her breach of contract action.
The issue of prospective payments in insurance breach of contract cases is rarely addressed in our case law. In Allen v. National Life & Accident Insurance Company, the insured alleged that she was permanently disabled. 228 Mo.App. 450, 67 S.W.2d 534, 534 (1934). Her policy specified that she was entitled to benefits for 26 weeks per year that she was disabled. Id. When the insurer repudiated the contract, she sued for damages based upon her life expectancy. Id. The reviewing court reversed the trial court, finding the damages based upon life expectancy too speculative. Id. at 534. Similarly, in another case involving disability benefits, this court agreed with the trial court's finding that insured's "request for immediate payment of future monthly benefits based upon [insured's] reasonable life expectancy does not state a claim upon which relief can be granted." Dyer v. Gen. Am. Life Ins. Co., 541 S.W.2d 702, 706 (Mo.App.1976).
Although a liquidated prospective damages award would best protect Insured from Insurer's proven unwillingness to provide her coverage, we agree with Insurer that an award based on Insured's life expectancy is impermissibly speculative. In the context of insurance, such an award might allow Insurer to escape liability for years that Insured lives beyond her life expectancy, or might permit Insured or her estate to recover excess funds should she die before the calculated life expectancy. See Allen, 67 S.W.2d at 535. Insured cannot recover payments under the insurance contract which, by reason of her death or recovery, might never accrue. See id.
As discussed above, however, Insurer wrongly rescinded Insured's policy because she did not make any material misrepresentations to Insurer, and she is entitled to past coverage. Like any improperly rescinded contract, Insured's policy with Insurer remains in full force and effect. See Jetz Serv. Co., Inc. v. KC Citadel Apartments, L.L.C., 59 S.W.3d 527, 530 (Mo.App.2001). As such, Insurer is required to perform the contract according to its terms for as long as Insured qualifies for coverage under the policy. It is through this ongoing performance of the contract that Insured should receive the coverage benefits owed to her, and we find no authority suggesting that she should instead receive a prospective damage award based on her life expectancy.
Insurer argues that continued payment of premiums is required for awarding future damages. From our review of the policy, however, we find that Insured is entitled to receive continued benefits regardless of continuing payment of premiums. The section entitled "Waiver of Premium Benefit" states:
Once [y]ou have received benefits for ninety (90) consecutive days under the Assisted Living Facility benefit or Nursing Facility Benefit, or have received benefits for ninety (90) consecutive days or more on a regular basis for Homemaker/Companion Care or Home Health Care, (a regular basis is five (5) days or more per week), [w]e will waive the payment of premiums coming due for this Policy and any riders attached to this policy while [y]ou continue to be eligible for the benefit. Premiums will become payable immediately when you are no *781 longer eligible for the Waiver of Premium Benefit.
Based upon the language of this section, Insured is entitled to coverage under the policy until she no longer requires assisted living.
Insurer also contests the award of the statutory penalty on the life expectancy amount under section 375.420. In light of the fact that we have found the life expectancy award in error, however, the statutory penalty on that amount necessarily fails.
We reverse the trial court's award of $249,590 and remand to the trial court for entry of a judgment in accordance with this opinion.
The judgment is affirmed in all other respects.
NOTES
[1] All further statutory references are to RSMo 2000 unless otherwise indicated.
[2] Although inapplicable to this case, our legislature enacted Sections 376.1100 through 376.1130 in 2002, which deal with long-term care policies. The purpose of the sections is:
to promote the public interest, to promote the availability of long-term care insurance policies, to protect applicants for long-term care insurance, as defined, from unfair or deceptive sales or enrollment practices, to establish standards for long term care insurance, to facilitate public understanding and comparison of long-term care insurance policies, and to facilitate flexibility and innovation in the development of long-term care insurance coverage.
Section 376.1103 RSMo Supp.2002.
Section 376.1124 deals specifically with rescission of long-term care policies due to misrepresentation. It states in part:
For a policy or certificate that has been in force for at least six months but less than two years, an insurer may rescind a long-term care insurance policy or certificate, or deny an otherwise valid long-term care insurance claim upon a showing of misrepresentation that is both material to the acceptance of coverage and which pertains to the conditions for which benefits are sought.
Section 376.1124.2 RSMo Supp.2002.
Additionally, we note the presence of Section 376.1109.2(1), which states:
No long-term care insurance policy may: (1)[b]e cancelled, nonrenewed or otherwise terminated on the grounds of the age or the deterioration of the mental or physical health of the insured individual or certificate holder[.]
Section 376.1109.2(1) RSMo Supp.2002
[3] The record on appeal contained only certain medical records from the period of February 8, 1996, through October 10, 2000.
[4] Rescission is unwarranted where there is no fraud or misrepresentation. See Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 227 (Mo.App.1980) (stating that rescission may be based on a false representation of a material fact, made with the knowledge of its falsity and with the intent to deceive, or upon a false representation or a concealment made innocently as a result of a misapprehension or mistake).
[5] The guidelines state, "[I]f replacement is indicated on a new application, it must be accompanied by a Replacement Form and Comparison Form." The application at issue states that Insured had another long-term care policy in place. The question regarding replacement coverage states, "Do you intend to replace any of your medical or health insurance coverage with this policy?" (emphasis added). Next to this questions, the "no" box is checked. Moreover, the American Fidelity policy is not listed in the section directing Agent to list all long-term care policies "which the applicant has or had." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2855714/ | COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT
WORTH
NO.
2-09-212-CV
JOLLY PARTNERS, LP D/B/A APPELLANTS
JOLLY TRUCK STOP AND F
& B
AND SONS, LLC
V.
DAS DISTRIBUTORS, INC. APPELLEE
------------
FROM THE 97TH DISTRICT COURT OF CLAY COUNTY
------------
MEMORANDUM OPINION[1]
------------
On July 14, 2009, we notified Appellants that we
were concerned this court may not have jurisdiction over this appeal because it
appeared that Appellants= notice of appeal was not timely
filed. We stated that the appeal might
be dismissed for want of jurisdiction unless Appellants or any party desiring
to continue the appeal filed with the court a response showing grounds for
continuing the appeal. See Tex.
R. App. P. 42.3(a), 44.3. We have
received no response to our jurisdiction letter.
The trial court=s final
judgment was signed on February 25, 2009.
Appellants then filed a motion for new trial on March 25, 2009, which
extended the appellate deadline for filing a notice of appeal until May 26,
2009. See Tex. R. App. P.
26.1(a). However, Appellants did not
file their notice of appeal until July 1, 2009.
The time for filing a notice of appeal is
jurisdictional in this court, and absent a timely-filed notice of appeal or
extension request, we must dismiss the appeal.
See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City of Houston,
976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617
(Tex. 1997); Chilkewitz v. Winter, 25 S.W.3d 382, 383 (Tex. App.CFort
Worth 2000, no pet.).
Accordingly, we dismiss the appeal for want of
jurisdiction. See Tex. R. App. P.
42.3(a), 43.2(f).
SUE
WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: August 13, 2009
[1]See Tex. R. App. P. 47.4. | 01-03-2023 | 09-04-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1353235/ | 17 Ariz. App. 461 (1972)
498 P.2d 535
Albert L. WILSON, Sr. and Sybil Wilson, husband and wife, Appellants,
v.
Irvin PATE and Louise Pate, husband and wife, Appellees.
No. 2 CA-CIV 1090.
Court of Appeals of Arizona, Division 2.
June 28, 1972.
Jennings, Strouss & Salmon, by M. Byron Lewis, Phoenix, for appellants.
Stanfield, McCarville, Coxon & Ishmael, by Franklin D. Coxon, Casa Grande, for appellees.
KRUCKER, Chief Judge.
This action was brought by the plaintiffs-Pate against the defendants-Wilson for breach of their lease agreement by nonpayment of rent. A judgment for damages was awarded the plaintiffs on July 15, 1971 in the amount of $2,404.59, plus costs.
On September 26, 1963, the plaintiffs and defendants entered into an agreement for the lease of a service station located in Casa Grande. The lease was to run for ten years, from October 1, 1963 to September 30, 1973. The full amount of the lease was to be $21,000 with monthly installments of $175. After making the April, 1970 payment, the defendants closed and vacated the service station and thereafter made no payments.
The lease agreement provided the following remedies for its breach:
"... that upon the non-payment of the whole or any portion of the said rent at the time when the same is above promised to be paid, the said lessor may, at his election, either distrain for said rent due, or declare this lease at an end, and recover possession as if the same was held by forcible detainer...."
The question for review by this court is whether the plaintiffs are limited to the remedies specified in the agreement or *462 whether they may recover damages for unpaid rent as permitted by the trial court.
It is generally accepted that the parties to a contract may provide therein precisely what the remedies shall be in case of a breach, and if so provided, they will be limited in their remedies by the terms of their contract. Green v. Snodgrass, 79 Ariz. 319, 289 P.2d 191 (1955); Treadway v. Western Cotton Oil and Ginning Co., 40 Ariz. 125, 10 P.2d 371 (1932); Armstrong v. Irwin, 26 Ariz. 1, 221 P. 222 (1923); Camelback Land & Inv. Co. v. Phoenix Entertainment Corp., 2 Ariz. App. 250, 407 P.2d 791 (1965); 51C C.J.S. Landlord & Tenant § 250(1). Any ambiguity in a lease is generally construed most strongly against the lessor. 49 Am.Jur.2d Landlord & Tenant § 143.
The lease agreement before us contains a very clear statement of alternative remedies available to the lessor following a breach by the lessee. The parties to a contract are free to modify common law remedies and we must assume that such changes were made by the mutual agreement of both parties. Under these circumstances we find Camelback, supra, controlling and find no merit in the appellees' attempted distinction of Camelback by the more "fruitful" remedies provided in that lease. This court in Camelback found that the lessor was precluded from recovering damages for the unpaid rent since that remedy was not one provided in the contract, and held that:
"... where a lease provides exclusive remedies to the lessor in the event of a breach by the lessee, the lessor is bound thereby and cannot go outside the terms of the contract and seek remedies or make claims for relief against the lessee other than those provided for in the lease...." 407 P.2d at 797.
We find that no action for damages for unpaid rent was available to lessors in the agreement and the judgment in the trial court was an attempted modification of a clear and unambiguous contract between the parties.
The case is reversed and remanded for action consistent with this opinion.
HATHAWAY, and HOWARD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353231/ | 498 P.2d 933 (1972)
James M. STEWARD, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 24644.
Supreme Court of Colorado, En Banc.
June 19, 1972.
Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Randolph M. Karsh, Deputy State Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendant in error.
ERICKSON, Justice.
James M. Steward was convicted of assault with a deadly weapon. C.R.S.1963, 40-2-34. In post-conviction proceedings, he has sought reversal by asserting various grounds, including a claim of incompetence of his defense counsel. In our opinion, the defendant's claims are without merit, and we, therefore, affirm.
*934 When trial strategy fails to produce an acquittal, incompetence of counsel cannot be said to exist by way of presumption or by wild speculation. The charge made by the defendant in this case, which attempts to discredit the legal abilities of his counsel, is one that we see all too often. The basic duty which the lawyer has to the accused is to serve as counsellor and advocate with courage and devotion and to the utmost of his learning and ability. American Bar Association Standards of Criminal Justice Relating to The Defense Function, §§ 1.1, 3.1.
To support his assertion that counsel was incompetent, he urges that reversal should be granted because cross-examination was permitted on previous felony convictions that the defendant had suffered without a prior foundation which would establish that he had counsel at the time that he was convicted. The trumpet call of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), as reflected in the words of Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972), has provided a basis for the defendant's claim under proper circumstances. See also, Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967). Loper v. Beto, supra, which has been given retroactivity in its application, clearly requires that convictions which will be used for impeachment purposes must not have been obtained without the guiding hand of counsel. Here, however, the defendant first brought his convictions to the attention of the jury and made no claim that he was not represented by counsel. This Court has held that the pronouncements in Burgett v. Texas, supra, and Loper v. Beto, supra, are not applicable unless the defendant has made a prima facie showing that his convictions were constitutionally infirm by reason of want of counsel or a knowing and intelligent waiver of counsel. People v. Woll, Colo., 498 P.2d 935 (announced June 12, 1972).
In the defendant's motion for a new trial, he asserts that the incompetence of his defense counsel is reflected by the failure to present certain evidence at the time of trial which he identifies as newly discovered evidence. The evidence in issue was not newly discovered evidence as contemplated by Crim.P. 33. The evidence which the defendant claims to have discovered relates only to the injuries which his landlord suffered.
Defense counsel stands as captain of the ship in ascertaining what evidence should be offered and what strategy should be employed in the defense of the case. His position is well described in the American Bar Association Standards of Criminal Justice Relating to The Defense Function:
"5.2 Control and direction of the case.
"(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.
"(b) The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.
"(c) If a disagreement on significant matters of tactics or strategy arises between the lawyer and his client, the lawyer should make a record of the circumstances, his advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relation. "
The representation that was afforded the defendant in this case does not fall within the "bad faith, sham, or farcical representation [tests]" which we enunciated in Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965). Diggs v. People, Colo., 492 *935 P.2d 840 (1972); Evans v. People, Colo., 486 P.2d 1062 (1971).
In keeping with the weight of authority, we have often declared that the constitutional right to the assistance of counsel is not a guarantee against mistakes of strategy and judgment in the course of the trial. Dolan v. People, 168 Colo. 19, 449 P.2d 828 (1969); Torres v. People, 159 Colo. 254, 411 P.2d 10 (1965).
The facts of this case, when analyzed in the light of the defendant's claim of incompetency of counsel, reflect the trial strategy that was employed and support our conclusion that the defendant was provided effective counsel and was given a fair trial.
James M. Steward and his wife fraternized with their landlord and his wife. On the day in question, a dispute arose between the four-some as to whether or not the defendant and his wife had paid their rent. In reviewing the problem, the parties engaged in a drinking bout. Eventually, they went to a bowling alley where the argument between the parties rose to the level that the wives entered into a fight. The defendant, however, did not participate in the bowling alley fracas, although his landlord did. As a result, the landlord, for his efforts, was struck by another man and suffered a head injury when his head struck a sharp object. When the parties returned to the apartment, the controversy over the payment of rent commenced anew, and the wives again started to fight, with the landlord attempting to intervene to stop the altercation. At that time, the defendant, who had a long felony record and who was an expert with firearms, shot at his landlord. The defendant claimed that if he had wanted to hit the landlord, he could have and contended that the landlord's injury was not occasioned by the shot, but by the fight that the landlord had participated in at the bowling alley. We need not speculate as to the facts, because those issues were resolved by the jury which was provided with evidence which was, in our opinion, sufficient to establish assault with a deadly weapon.
The remaining assertions of error are without merit and do not require comment.
Accordingly, the judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353245/ | 614 S.E.2d 887 (2005)
TROTTER
v.
SUMMEROUR.
No. A05A0683.
Court of Appeals of Georgia.
May 12, 2005.
*888 Jack E. Dodd, Gainesville, for appellant.
James N. Butterworth, Cornelia, for appellee.
BERNES, Judge.
This is an appeal from an order entered by the Superior Court of Habersham County requiring counsel for plaintiff Richard Trotter to pay the attorney fees and expenses of litigation incurred by defendant Bardel Summerour. For the reasons set forth below, we affirm the trial court's decision to award attorney fees and expenses under OCGA § 9-15-14(a) based on its determination that Trotter's claims for punitive damages and attorney fees were frivolous. However, we vacate the award of fees and expenses because the trial court failed to properly limit the award to those fees and expenses incurred in defending against the frivolous claims.
Trotter commenced this tort action against Summerour, d/b/a TBJ Welding Service, alleging that a house trailer fell on him while he was working underneath it because of Summerour's negligent welding work. At the time of the incident, Trotter was removing blocks from underneath the house trailer in order to move the trailer to a new location. Previously, the owner of the trailer had hired Summerour to weld a metal tongue back onto the frame of the trailer, which had been removed when the trailer was first placed up onto concrete blocks. Trotter alleged that Summerour knew that the house trailer would be raised by the tongue to permit workers to get underneath it and prepare it for moving, but that Summerour nevertheless welded the tongue onto the frame using improper and inadequate welding techniques. Trotter further contended that the tongue broke in the spot where Summerour had welded it to the trailer frame, which caused the trailer to fall on him, resulting in severe pain and serious back injuries. Trotter prayed for general damages, special damages, punitive damages, and attorney fees.
Trotter voluntarily dismissed his complaint on January 7, 2002. Trotter re-filed his suit on March 20, 2002, raising the same allegations and again praying for damages that included punitive damages and attorney fees. The case subsequently was tried before a jury on August 11 and 12, 2003. Once Trotter presented his case-in-chief, Summerour moved for a directed verdict, which the trial court granted as to the punitive damages and attorney fees claims, but denied as to the issue of negligence and the claims for general and special damages. The jury later returned a verdict in favor of Summerour on all remaining claims.
Thereafter, Summerour timely filed a motion for attorney fees and expenses pursuant to OCGA § 9-15-14. After conducting an evidentiary hearing, the trial court granted in part and denied in part Summerour's motion. The trial court determined that because the claims for general and special damages survived the motion for directed verdict, those claims did not lack substantial justification and did not otherwise provide a basis for a fee award under OCGA § 9-15-14(a) or (b). However, the trial court, quoting from OCGA § 9-15-14(a), found as to the punitive damages *889 and attorney fees claims that "there existed such a complete absence of any justifiable issue of law [or] fact that it could not be reasonably believed that a Court would accept the asserted claim, defense or other position." Based on this finding, the court "conclude[d] as a matter of law that defendant is entitled under OCGA § 9-15-14(a) to an award of attorney's fees" and that the fees and expenses should be paid solely by Trotter's counsel. After reducing the billable rate proposed by Summerour, the trial court held that Trotter's counsel had to pay fees and expenses incurred by Summerour in litigating the entire case, including time expended on the original lawsuit which had been voluntarily dismissed. Trotter sought discretionary review of the trial court's order, which we granted.
1. Trotter challenges on several grounds the trial court's decision to award attorney fees and expenses to Summerour based on Trotter's punitive damages and attorney fees claims, which the court deemed frivolous. "We review a trial court's ruling on an OCGA § 9-15-14(a) motion for attorney fees under the `any evidence' standard...." (Citation omitted.) Kilgore v. Sheetz, 268 Ga.App. 761, 770(2), 603 S.E.2d 24 (2004). If any evidence exists to support the trial court's grant of the motion, we are compelled to affirm. Haggard v. Bd. of Regents, etc., of Ga., 257 Ga. 524, 527(4)(c), 360 S.E.2d 566 (1987). Based on the record before us, we are compelled under the "any evidence" standard to conclude that the trial court did not err in awarding fees and expenses pursuant to OCGA § 9-15-14(a) on the punitive damages and attorney fees claims.
We turn first to Trotter's claim for punitive damages brought against Summerour for the alleged defective welding. Under OCGA § 51-12-5.1(b),
Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.
"[S]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage." (Citations and punctuation omitted.) Roseberry v. Brooks, 218 Ga.App. 202, 209(4), 461 S.E.2d 262 (1995). "Mere negligence, although gross, will not alone authorize the recovery of punitive damages." (Citation and punctuation omitted.) Alliance Transp. v. Mayer, 165 Ga.App. 344, 345, 301 S.E.2d 290 (1983). See also Tower Financial Svcs. v. Smith, 204 Ga.App. 910, 918(5), 423 S.E.2d 257 (1992). In contrast to gross negligence, the expression "conscious indifference to consequences" means "an intentional disregard of the rights of another, knowingly or willfully disregarding such rights." (Citation omitted.) Dow Chemical Co. v. Ogletree, Deakins, Nash, Smoak & Stewart, 237 Ga.App. 27, 31(3), 514 S.E.2d 836 (1999).
In light of this standard for awarding punitive damages, the trial court did not err in awarding fees and expenses on Trotter's punitive damages claim. Our review of the record reveals that, at most, Trotter was justified in asserting a claim of ordinary negligence against Summerour, and that Trotter's counsel "could have made this determination with a minimum amount of diligence." Bankhead v. Moss, 210 Ga.App. 508, 510(1), 436 S.E.2d 723 (1993). Even when construed in Trotter's favor, the only evidence developed by him during discovery and at trial concerning the welding job indicated that Summerour did not prepare the trailer frame properly for welding and used improper welding techniques on portions of the frame. Indeed, Trotter's expert witness on welding techniques (who did not inspect the tongue until three years after the incident) noted that the welding job involved in this case was a difficult one to carry out properly, further indicating that this was not a case involving special circumstances of aggravation or outrage.
Furthermore, Trotter has not provided a single record citation to any evidence developed during discovery or at trial suggesting that Summerour knew at the time he welded the tongue on the trailer frame that it would be used for anything other than pulling the *890 trailer.[1] Nor has Trotter pointed to any record evidence suggesting that at the time the case was initially filed or during discovery, there was information available to Trotter or his attorney that otherwise led them to believe that they would be able to recover punitive damages, even though that information later turned out to be faulty once the case came to trial. See C & S Trust Co. v. Trust Co. Bank, 262 Ga. 345, 417 S.E.2d 148 (1992) (per curiam). For all of these reasons, we conclude that the trial court had a basis in the record for holding that there was a complete absence of any justiciable issue of law or fact justifying Trotter's punitive damages claim.[2] Trotter simply "presented no evidence to substantiate [his] theory" of recovery for punitive damages. Ellis v. Stanford, 256 Ga.App. 294, 298(6), 568 S.E.2d 157 (2002).
The same conclusion is justified with regard to Trotter's attorney fees claim. At trial, Trotter's counsel argued that Trotter was entitled to obtain attorney fees from Summerour for the same reason he was entitled to punitive damages. Hence, in light of our conclusion regarding Trotter's punitive damages claim, the trial court also was entitled to find that there was a complete absence of any justiciable issue of law or fact justifying Trotter's attorney fees claim and, therefore, to award fees and expenses on that ground as well.
2. We next turn to Trotter's contention that the amount of fees and expenses awarded by the trial court under OCGA § 9-15-14(a) was improper. From the face of the trial court's order and its reference to the attorney fees records prepared by Summerour's counsel that are included in the record on appeal, it is clear that the court did not limit the fees award to those fees and expenses incurred by Summerour in litigating against the frivolous punitive damages and attorney fees claims raised by Trotter. Rather, the trial court held Trotter's counsel liable for fees and expenses incurred by Summerour on all the claims raised in this case. We conclude that the trial court committed reversible error by not apportioning fees between those incurred in defending against the claims deemed frivolous that were raised by Trotter, and those fees incurred in defending against the nonfrivolous claims.
The trial court reasoned that "a party acting in bad faith should pay the full price for losing, not simply those fees attributable to the claims upon which the movant prevailed." The court cited CSX Transp. v. West, 240 Ga.App. 209, 212 (3)(a), 523 S.E.2d 63 (1999), in support of this proposition. However, the CSX case involved an award of attorney fees under OCGA § 13-6-11, whereas the attorney fees at issue here were awarded under OCGA § 9-15-14. These two statutes, OCGA § 9-15-14 and OCGA § 13-6-11, allow for awards of attorney fees based on entirely different categories of sanctionable conduct. On the one hand, OCGA § 9-15-14
applies to conduct occurring during the litigation. OCGA § 13-6-11, on the other hand, permits an award of attorney fees where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. It applies to conduct arising from the underlying transaction.
(Citations and footnote omitted; emphasis supplied.) Ellis, 256 Ga.App. at 297-298(6), 568 S.E.2d 157. Thus, the trial court's reliance *891 on CSX to support the nonapportionment of fees under OCGA § 9-15-14 was misplaced.[3]
Indeed, we have held that in cases involving OCGA § 9-15-14(a) or (b), the trial court must limit the fees award "to those fees incurred because of [the] sanctionable conduct." Harkleroad v. Stringer, 231 Ga.App. 464, 472(6), 499 S.E.2d 379 (1998). See also Santora v. American Combustion, 225 Ga.App. 771, 776(3), 485 S.E.2d 34 (1997); Duncan v. Cropsey, 210 Ga.App. 814, 815-816(2), 437 S.E.2d 787 (1993). "Lump sum" attorney fees awards are not permitted in Georgia. Huggins v. Chapin, 233 Ga.App. 109, 503 S.E.2d 356 (1998). With respect to OCGA § 9-15-14(a), the trial court is required to exclude from any sanctions award those fees and expenses unrelated to defending against the claims deemed frivolous. See Harkleroad, 231 Ga.App. at 472(6), 499 S.E.2d 379. As such, the trial court erred in assessing attorney fees for the entire litigation rather than specifically limiting the award to fees incurred by Summerour in defending against the punitive damages and attorney fees claims raised by Trotter, if any.
Finally, because the issue will recur on remand, we also address whether the trial court is entitled to award attorney fees and expenses for time specifically expended on the frivolous claims that occurred during the course of the original suit filed by Trotter that was voluntarily dismissed. We conclude that the trial court is authorized to do so on remand. Trotter refiled his suit approximately two months after it was voluntarily dismissed, raising the same allegations and seeking the same types of damages. Since Trotter properly renewed his suit, the deadline for Summerour to file a fees motion under OCGA § 9-15-14 for time expended on the voluntarily dismissed suit did not begin to run until the "final disposition" of the renewed suit. Meister v. Brock, 268 Ga.App. 849, 849-850(1), 602 S.E.2d 867 (2004) (if suit is voluntarily dismissed, 45-day time limit set forth in OCGA § 9-15-14(e) does not begin to run until a second dismissal, or if the case is not renewed, until expiration of the original statute of limitation period or six months after the discontinuance or dismissal, whichever is later). As such, we conclude that as part of his request for sanctions timely filed after final disposition of the renewed suit, Summerour was entitled to seek fees and expenses incurred in defending against the frivolous claims during the course of the original suit. See id. at 850, 602 S.E.2d 867 (interpretations of the 45-day fees motion deadline should be avoided that would cause "a litigant [to] lose the right to seek OCGA § 9-15-14 penalties after a dismissal that proved to be only temporary rather than final"). See also Moore v. Harris, 201 Ga.App. 248, 250(2), 410 S.E.2d 804 (1991) (upholding fees award in second suit under OCGA § 9-15-14 that included fees and expenses incurred during original suit that was later voluntarily dismissed, even though original suit was filed before the effective date of the fees statute).[4]
For the foregoing reasons, we affirm the trial court's decision to award attorney fees and expenses under OCGA § 9-15-14(a) based on Trotter's claims for punitive damages and attorney fees. However, we vacate the award of fees and expenses, and we remand to the trial court to revise its attorney fees award in a manner consistent with this opinion.
Judgment affirmed in part and vacated in part and case remanded with direction.
BLACKBURN, P.J., and MILLER, J., concur.
NOTES
[1] The burden is on the party alleging error to provide citations to the record supporting reversal of the trial court's decision. Warren v. Weber & Warren Anesthesia Svcs., 272 Ga.App. 232, 239, n. 5, 612 S.E.2d 17 (Ga.Ct.App.2005).
[2] We note that although the trial transcript, pleadings, exhibits, and several deposition transcripts have been included in the record on appeal, the transcript of the hearing held on the attorney fees issue was not included. "[I]t is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings." (Citation omitted.) Atwood v. Southeast Bedding Co., 236 Ga.App. 116(1), 511 S.E.2d 232 (1999). Thus, to the extent that evidence was presented at the attorney fees hearing beyond what can be gleaned from the trial transcript, pleadings, exhibits, and deposition transcripts, it is not available for us to consider. "[Where] the transcript is necessary ... and appellant omits it from the record on appeal ... the appellate court must assume the judgment below was correct and affirm." (Citations omitted.) Id.
[3] We also point out that CSX conflicts with Forsyth County v. Martin, 279 Ga. 215, 219(2)(c), 610 S.E.2d 512 (2005), and United Companies Lending Corp. v. Peacock, 267 Ga. 145, 147(2), 475 S.E.2d 601 (1996).
[4] The present case is distinguishable from Gist v. DeKalb Tire Co., 223 Ga.App. 397, 477 S.E.2d 616 (1996). In Gist, the defendant company failed to file its sanctions motion under OCGA § 9-15-14 in the second suit in a timely manner following the final disposition of that suit; rather, the company filed its sanctions motion 55 days after the second suit was dismissed. Id. at 397, 477 S.E.2d 616. As such, the company's attempt in that same motion to seek sanctions for conduct arising in the original suit that was voluntarily dismissed likewise was untimely. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353252/ | 498 P.2d 1255 (1972)
94 Idaho 782
Don CHURCH, Plaintiff-Appellant,
v.
Lawrence ROEMER and Audene Roemer, husband and wife, Defendants, and
Simplot Industries, Inc., a corporation, Defendant-Respondent.
No. 10904.
Supreme Court of Idaho.
June 20, 1972.
Rehearing Denied July 20, 1972.
*1256 William J. Langley and Webb, Pike, Burton & Carlson, Twin Falls, for appellant.
Hawley, Troxell, Ennis & Hawley, Boise, for respondent.
DONALDSON, Justice.
This action was brought to recover payment of a debt and to foreclose a farm laborer's lien. The plaintiff-appellant Don Church was hired by Lawrence Roemer to harvest potatoes grown on land leased by Roemer, part of which land was owned by the defendant-respondent Simplot Industries. Although the J.R. Simplot Company as contrasted to the separate corporation of Simplot Industries is not a party to this lawsuit, it is involved in the facts of the case. Roemer had contracted to sell all of his potatoes to the J.R. Simplot Company. Church completed his harvesting work in November of 1967 and delivered the harvested potatoes to the J.R. Simplot Company. The J.R. Simplot Company paid for these potatoes by writing out checks to the order of Roemer, Simplot Industries, and a third party not involved in this action (Farmers Financial Service Co., which had a security interest for fertilizer supplied by Simplot Industries). These checks were deposited in a checking account maintained at the First Security Bank, on which account checks could be drawn only with the signatures of both Roemer and an agent (Mr. Balderama) of Simplot Industries. Simplot Industries had helped Roemer obtain a "line of credit" from the First Security Bank, and in order to protect itself, Simplot Industries required that Balderama cosign all of Roemer's checks for farming expenses.
In late November, 1967, Roemer was prepared to pay Church in full for the services he rendered in harvesting potatoes on the land leased to Roemer. But Church, for tax reasons, requested that payment be deferred until January of 1968. Roemer replied that Church would have to check with Balderama, whereupon Church met with Balderama and Roemer and renewed his request. Balderama did not testify at the trial. Roemer testified that Balderama said such a deferral "would be all right" and that "Balderama agreed that the payment be deferred until after the first of the year." The plaintiff-appellant *1257 Church testified that Balderama "agreed that the money was there at that time and would be after the first of the year." This testimony was supplemented by that of a third party present at the time (Mr. Dougherty, who is not a party to this suit), who testified that Balderama said that "the money was there and it was all right to wait until after the first of January to get the money." Relying upon this testimony, the appellant contends that Balderama's statements had the effect of binding Simplot Industries to pay the appellant for the work he had done at Roemer's request.
At the time of the November meeting of Roemer, Balderama, and Church, the bank account from which farm expenses were paid contained some $29,000. On December 30, however, the First Security Bank appropriated almost $20,000 of the funds in this account in order to satisfy the debt owed to it by Roemer (which had arisen when the bank loaned money to Roemer, pursuant to the request of the respondent Simplot Industries); this left a balance in the account of only $8,732. Thereafter, a check was drawn for $8,650 in favor of the J.R. Simplot Company in payment for seed and fertilizer previously furnished to Roemer; presumably, this check, like all the others drawn on this account, was signed not only by Roemer but also by Balderama, the agent of Simplot Industries. This left a balance of only some $80 in the account.
After January 1, 1968, the appellant requested payment, which was refused, and in February of 1968, he field a farm laborer's lien for the amount of his claim for harvesting services; as required by I.C. § 45-302,[1] this lien was filed within ninety days of the completion of the work for which the claim was made. At the same time, the appellant commenced this suit against Roemer and Simplot Industries.[2] It was stipulated at the pre-trial conference that the appellant had provided Roemer with services worth $19,943.53. In June, 1970, the case was tried before the district court sitting without a jury.
The trial court granted summary judgment in favor of the defendant Roemer because the appellant's claim for harvesting services was among the debts discharged when Roemer was granted a discharge in bankruptcy in January, 1969. The propriety of this summary judgment is not questioned by the appellant. In July, 1970, after the conclusion of the trial in the district court, the appellant submitted a motion to add the J.R. Simplot Company as a party defendant; this motion was denied on the *1258 basis that the evidence produced at trial established that the appellant's lien did not attach to the harvested potatoes received by the J.R. Simplot Company. Judgment was entered in favor of the respondent Simplot Industries, and this appeal followed.
Relying upon the testimony as to what took place when he met with Balderama in November of 1967, the appellant Church contends that the trial court erred in finding that Balderama did not enter into any agreement on the part of Simplot Industries to pay the obligation of Roemer due the appellant. Findings of fact shall not be set aside on appeal unless they are clearly erroneous; in applying this principle, regard must be given to the special opportunity of the trial court to judge the credibility of those witnesses who appear personally before it. I.R.C.P. 52(a). Because there is substantial evidence to support the challenged finding, it will not be disturbed by this Court. I.C. § 13-219; Weaver v. Pacific Finance Loans, 94 Idaho 345, 487 P.2d 939 (1971); Duncan v. Davis, 94 Idaho 205, 485 P.2d 603 (1971); Dalby v. Kennedy, 94 Idaho 72, 481 P.2d 30 (1971). Since the trial court in effect found that the respondent's agent did not promise to pay (with Simplot funds) the debt due appellant, it is unnecessary to decide whether the doctrine of promissory estoppel[3] rendered the alleged promise enforceable; similarly, it is unnecessary to decide whether the alleged promise falls within an exception to the statute of frauds.
The appellant contends that Simplot Industries was engaged in a joint venture with Roemer and for that reason may be held liable for his debts. The respondent submits, however, that the issue of joint venture was never raised, argued, or decided at trial and, therefore, should not be considered on appeal. In his reply brief, the appellant suggests that the issue was raised sufficiently at trial and that the court's findings indicate that it considered the issue of joint venture; contending that the court specifically found that such a relationship did not exist, the appellant points to the following conclusion of the court:
"The agreements between Lawrence Roemer and defendant Simplot Industries, Inc., * * * did not create a relationship by which the defendant Simplot Industries, Inc., became liable for indebtedness incurred by Lawrence Roemer * * *."
After reviewing the record, we are inclined to agree with the respondent's position *1259 that the issue of joint venture was not tried in this case. In this regard, it is significant that although the appellant filed objections to the trial court's findings and conclusions, together with a motion to amend and make additional findings and conclusions, the appellant did not object to the court's failure to make any finding with respect to joint venture, nor did the appellant request a conclusion of law to the effect that a joint-venture relationship between Roemer and Simplot Industries gave rise to the latter's liability for the debts incurred by the former. In any event, even if we accept the appellant's contention that the joint-venture issue was raised and determined in the respondent's favor, the appellant still cannot prevail, because there is sufficient evidence in the record to support a finding in favor of the respondent on that issue. Whether a relationship of joint venturers exists is primarily a question of fact for the trial court to determine from the evidence and the inferences to be drawn therefrom. Lepel v. Lepel, 93 Idaho 82, 456 P.2d 249 (1969); Stearns v. Williams, 72 Idaho 276, 240 P.2d 833 (1952). Since the trial court's finding that such a relationship did not exist is not clearly erroneous, it must not be set aside on appeal. I.R.C.P. 52(a).
Relying on the lien filed under I.C. § 45-302,[4] the appellant contends that the respondent Simplot Industries is liable for conversion because it controlled the disposition of the potatotes harvested by the appellant and because it appropriated the proceeds of the sale of the crop. However, the uncontroverted evidence indicates that at no time after the appellant had completed his harvesting work did Simplot Industries ever have the harvested potatoes in its possession; in fact, as part of his labor, the appellant himself delivered the crop directly to the J.R. Simplot Company or to storage facilities leased by that company. The respondent did nothing to injure the appellant's security interest in the harvested crop and, under such circumstances, may not be held liable for conversion. Hansbrough v. D.W. Standrod & Co., 49 Idaho 216, 286 P. 923 (1930); cf. Adair v. Freeman, 92 Idaho 773, 451 P.2d 519 (1969). In regard to the alleged conversion of the proceeds of the crop sale, a reading of I.C. § 45-302 discloses that it was not the intention of the legislature to give a farm laborer a security interest in the proceeds derived from a sale of the crop. That section states, inter alia, that a laborer is "deprived of his lien" if the vendor fails to make a statement, upon the vendee's demand, informing the latter of the existence of farm laborers who are entitled to liens upon the crop sold. This provision indicates that after the crop is sold, the lien attaches, if at all, only to the crop in the hands of the vendee and not to the proceeds of the sale. Since the appellant had no property interest in the proceeds, it follows that he does not have an action for conversion based upon any alleged acts of dominion exerted over those proceeds by the respondent. See Adair v. Freeman, supra. The appellant repeatedly mentions that the respondent in its answer admitted that it then had in its possession the potatoes harvested by the appellant. In the court's pre-trial order, however, the following amendment to the respondent's answer was granted: "none of the potatoes harvested were in storage or in possession of this defendant, nor the proceeds thereof, at the time of the filing of the lien or the service of the complaint." No objections to this pre-trial order were filed and, by its own terms, within ten days the contents thereof became "applicable and binding in all further proceedings in this matter."[5] Moreover, as indicated above, *1260 the evidence subsequently adduced at trial fully substantiates the position of the respondent that the harvested crop was delivered directly to the J.R. Simplot Company.
For the purpose of considering the appellant's contention that the trial court erred in denying his motion to add the J.R. Simplot Company as a party defendant, we may assume that if an action had been properly commenced against that company, the appellant's lien could have been enforced against any potatoes subject to the lien in the company's possession. However, Idaho Code section 45-303 states that:
"No lien provided for in this chapter binds such crop or crops for a longer period than six calendar months after the claim as herein provided has been filed, unless a civil action be commenced in a proper court within that time to enforce the same."
Under a statute such as this, the lien becomes void for all purposes as to any person not made a party to an enforcement suit within the prescribed time. Willes v. Palmer, 78 Idaho 104, 298 P.2d 972 (1956); Western Loan & Building Co. v. Gem State Lumber Co., 32 Idaho 497, 185 P. 554 (1919); Interior Warehouse Co. v. Hays, 91 Wash. 507, 158 P. 99 (1916); 3 C.J.S. Agriculture § 51, at 459 (1936); cf. Annot., 139 A.L.R. 903, 913 (1942). In other words, section 45-303 must be read as though it provided that the lien is ineffective unless a civil action is commenced within six months against the defendant against whose interest the lien is asserted. Western Loan & Building Co. v. Gem State Lumber Co., supra. The time limitation within which a foreclosure action must be brought conditions the right to sue. Id. Where, as here, this condition is unfulfilled as to a particular defendant, recovery against the interest of that defendant is not possible. In this case, the appellant's lien[6] was filed in February, 1968, and no action was commenced against the J.R. Simplot Company within six months of that filing; hence, the appellant's July, 1970, motion to add that company as a party defendant was properly denied. The trial court denied the appellant's motion on the ground that since there was no evidence to show that the notice required by section 45-302[7] was given to the J.R. Simplot Company, the lien was lost when the potatoes were delivered to that company; and, therefore, the lien could no longer be enforced against that crop. However, section 45-302 also requires that the vendee demand such notice, and there was no evidence to indicate that the J.R. Simplot Company complied with this requirement. This statute indicates that a farm laborer's lien may be enforced against farm products sold to a vendee, even though he did not receive notice of the lien, if he did not demand sworn, written notice as required by the terms of the statute. Therefore, it was error to conclude that liability was precluded merely because the evidence failed to show that the J.R. Simplot Company did not receive the statutory notice, where the evidence also failed to show that such was demanded by that company. Although we disagree with the reason given by the trial court for its ruling, the appellant's motion to add the J.R. Simplot Company as a party defendant was, as explained above, properly denied. Where an order of a lower tribunal is correct, but was based upon an erroneous theory, the order will be affirmed by the appellate court upon the correct theory. Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972); Nysingh v. Warren, 94 Idaho 384, 488 P.2d 355 (1971); Industrial Indem. Co. v. Columbia Basin Steel & Iron Inc., 93 Idaho 719, 471 P.2d 574 (1970).
Numerous additional errors are assigned challenging certain findings and conclusions made by the court and its refusal to accept others proposed by the appellant. *1261 The appellant also assigns as error the court's denial of his motion to reopen the trial for the purpose of permitting the introduction into evidence of two potato growing agreements entered into by the J.R. Simplot Company and the defendants. These assignments are not, however, supported by authority or argument and for that reason will not be considered on appeal. Supreme Court Rule 41; Haggerty v. Western Barge, Inc., 94 Idaho 509, 492 P.2d 48 (1971); State v. Linn, 93 Idaho 430, 462 P.2d 729 (1969); Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).
Judgment affirmed. Costs to respondent.
McQUADE, C.J., and McFADDEN, SHEPARD, and BAKES, JJ., concur.
NOTES
[1] I.C. § 45-302 provides:
"Claim of lien Enforcement Removal and sale of products in open market. Any person claiming the benefit of this chapter must, within ninety days after the close of said work or labor, file for record with the county recorder of the county in which said work and labor was performed, a claim which shall be in substance in accordance with the provisions of section 45-407, so far as the same may be applicable, which said claims shall be verified as in the said section provided, and said liens may be enforced in civil actions: provided, that where farm products are removed from the premises upon which the same were grown, and sold to shippers, wholesale dealers or manufacturers upon the open market in the ordinary course of trade before the filing of any such lien, such shippers, wholesale dealers or manufacturers shall not be liable for any farm laborer's liens, unless notice has been given them of persons holding claims described in this chapter; and said vendee shall be required to demand and receive a sworn, written statement from the vendor giving the names and the amounts due to laborers entitled to liens, as provided in this chapter. Any such vendor who shall fail to make such statement when demanded or who shall make any false or misleading statement therein, shall be guilty of a misdemeanor, and shall, moreover, be liable to any laborer thus deprived of his lien for double the full value thereof, and to reasonable attorney's fees in case suit is instituted to recover the amount due."
[2] I.C. § 45-303 provides:
"Duration of lien. No lien provided for in this chapter binds such crop or crops for a longer period than six calendar months after the claim as herein provided has been filed, unless a civil action be commenced in a proper court within that time to enforce the same."
[3] It appears that the appellant might have relied upon the doctrine of equitable estoppel to establish a cause of action. See Bjornstad v. Perry, 92 Idaho 402, 443 P.2d 999 (1968); Minidoka County for Use and Benefit of Detweiler Bros. v. Krieger, 88 Idaho 395, 399 P.2d 962 (1964); Fairchild v. Wiggins, 85 Idaho 402, 380 P.2d 6 (1963); Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833 (1939); Farber v. Page & Mott Lumber Co., 20 Idaho 354, 118 P. 664 (1911); 3 Pomeroy's Equity Jurisprudence § 805, at 191 (5th ed. 1941). This theory was not, however, presented during the trial or even raised on appeal; hence, it is not properly before us for consideration. Brown v. Arrington Const. Co., 74 Idaho 338, 262 P.2d 789 (1953). Whether the doctrine of equitable estoppel should be invoked is ordinarily a question of fact which must be resolved at trial and which, in any event, cannot be considered originally in the appellate court; thus, it has been held that where the trial court did not make any finding with reference to the question of estoppel, the appellate court cannot determine whether a party is estopped by his conduct. Palmer v. Town of Farmington, 25 N.M. 145, 179 P. 227 (1919); Di Nola v. Allison, 143 Cal. 106, 76 P. 976 (1904); 28 Am.Jur.2d Estoppel and Waiver § 153 (1966). In this regard, it is significant that although the appellant filed objections to the trial court's findings and conclusions, together with a motion to amend and make additional findings and conclusions, the appellant did not object to the court's failure to make any finding with reference to estoppel, nor did the appellant request such a finding. Cf. Williams v. Idaho Potato Starch Co., 73 Idaho 13, 22-23, 245 P.2d 1045 (1952).
[4] I.C. § 45-302 is set out in note 1, supra.
[5] The appellant did not contend at trial, nor does he contend here, that the respondent should be estopped to deny its possession of the crop because the appellant's reliance upon this admission in the answer resulted in the appellant's being precluded from joining the actual possessor, the J.R. Simplot Company, as a party defendant.
[6] Although the appellant's claim of lien did not mention the J.R. Simplot Company, it did substantially comply with the provisions of I.C. § 45-407, as required by I.C. § 45-302 (set out in note 1, supra).
[7] I.C. § 45-302 is set out in note 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353265/ | 147 S.W.3d 163 (2004)
STATE of Missouri, Plaintiff-Respondent,
v.
Wayne R. SHOULTS, Jr., Defendant-Appellant.
No. 26005.
Missouri Court of Appeals, Southern District, Division Two.
October 28, 2004.
*165 Nancy A. McKerrow, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for Respondent.
JOHN E. PARRISH, Presiding Judge.
Wayne R. Shoults, Jr., (defendant) appeals a judgment of conviction for resisting arrest. § 575.150, RSMo 2000. This court affirms.
On December 31, 2002, Missouri State Highway Patrol Trooper James Mulkey met a car on Highway C in Crawford County. He observed that the car had no front license plate. Trooper Mulkey observed the car in his rearview mirror after it passed him. It also had no rear license plate. Trooper Mulkey turned his patrol car around and overtook the car. He activated his emergency lights. The car accelerated. Trooper Mulkey pursued it.
The driver was the only occupant of the car. When the car did not stop after Trooper Mulkey pulled behind it with his emergency lights activated, he turned on his siren. The car still did not stop. As the officer followed the car, the driver opened its passenger door and threw objects from the car. Trooper Mulkey radioed other officers, reported the location where the objects had been thrown, and requested that the officers retrieve them.
The car Trooper Mulkey was pursuing was speeding and weaving on the roadway, sometimes crossing into the approaching lane of travel. A tractor-trailer pulled off the roadway as the car approached. Trooper Mulkey saw the driver throw a red Playmate-type cooler, a small box "like a Rubbermaid type of box," and other items from the car after it passed the tractor-trailer.
After the car pulled onto another road, Burnett Road, the car stalled. Trooper Mulkey got out of his car and yelled loudly to the driver, telling him to get out of the car. The driver did not respond but got the car back in gear and accelerated. Trooper Mulkey continued the pursuit. The driver threw more objects from the car. He was speeding, driving on both sides of the roadway and sliding into the oncoming traffic lane when he went around curves. The car traveled at speeds that approached 100 miles per hour and ran a stop sign. After it turned onto another road, the trooper fell back about 75 yards. He explained, "As I crested a hill with the pursuit vehicle in front of me, ... I observed ... him trap [sic] off the left side of the road, come back onto the road, enter a broadside slideslide off the south side of the road, and overturn several times."
Defendant was the driver of the car. He had been ejected from it. Trooper Mulkey found him under a cedar tree about 20 feet from the car. The officer saw defendant was bleeding. He went to his patrol car to retrieve gloves in order to administer first aid. When he went back, defendant was trying to crawl away. Defendant fought Trooper Mulkey while the officer was handcuffing him. Defendant was restrained on a backboard and transported to a hospital by helicopter.
Defendant's first point on appeal is directed to the trial court permitting the state to introduce items retrieved from the roadway in evidence. Point I asserts the trial court erred in overruling objections defendant made to the introduction of the *166 items in evidence and in admitting them in evidence "in that the items retrieved were all drug related but whether these items were the same items Trooper Mulkey saw [defendant] throwing from the car during the chase was based on speculation and had no probative value since [defendant] was not charged with a drug offense." He argues that the items "lacked probative value" and their introduction was prejudicial because the jury was allowed to speculate that he was involved in the manufacture of methamphetamine.
Defendant's Point I is based on the general rule that uncharged misconduct is inadmissible to show a defendant's propensity to commit the crime charged. State v. McKibben, 998 S.W.2d 55, 58 (Mo.App.1999). "This rule is to prevent the jury from convicting the defendant based on his or her propensity to commit such crimes, rather than upon evidence showing that the defendant actually committed the crimes charged." Id. at 58-59. There are, however, exceptions to this rule.
Evidence of uncharged misconduct is admissible if it "tends to establish motive, intent, identity, the absence of mistake or accident, or a common scheme or plan." [State v.] Morrow, 968 S.W.2d [100] at 107 [(Mo.banc 1998)] (quoting [State v.] Harris, 870 S.W.2d [798] at 810 [(Mo.banc 1994), cert. denied, 513 U.S. 953, 115 S. Ct. 371, 130 L. Ed. 2d 323 (1994)]). "[E]vidence of uncharged crimes that are part of the circumstances or the sequence of events surrounding the offense charged" is also admissible "to present a complete and coherent picture of the events that transpired." Id. (quoting Harris, 870 S.W.2d at 810).
Id. at 59. See also State v. Barrett, 41 S.W.3d 561, 564 (Mo.App.2001); State v. Wright, 934 S.W.2d 575, 583 (Mo.App.1996).
Defendant was charged with resisting arrest based on his flight when Trooper Mulkey attempted to stop him by turning on emergency lights and siren. The throwing of objects from the car occurred during the time Trooper Mulkey pursued defendant. Defendant's actions in throwing the objects from his car were part of the circumstances and sequence of events that surrounded defendant's actions that constituted the offense of resisting arrest. "[T]he state is permitted to paint a complete and coherent picture of the crime charged and it is not required to sift and separate the evidence and exclude the testimony tending to prove the crime for which [a] defendant is not on trial." State v. King, 588 S.W.2d 147, 150 (Mo.App.1979).
Point I also argues that the objects admitted in evidence were not shown to be the items thrown from defendant's car, but that the admission of them was based on speculation that the objects admitted in evidence were the same objects thrown from the car. Defendant contends that even if the trial court did not abuse its discretion in allowing Trooper Mulkey to testify about what he saw during his attempt to stop defendant, it was an abuse of discretion to allow the objects recovered along the roadway in evidence.
Trooper Mulkey sought the help of other officers to retrieve objects he saw thrown from defendant's car. He advised the other officers by radio of the locations where he saw defendant throw objects from the car. Items that were recovered from the locations Trooper Mulkey described and that were admitted in evidence were consistent with the description of the objects the officer said he saw thrown from the car.
Additionally, one of the officers who assisted in retrieving the objects testified *167 that they were not things usually found on the side of a road and were clean as if just recently placed at the locations where they were found. The trial court did not abuse its discretion in admitting in evidence the objects about which defendant complains. Point I is denied.
Point II is a claim of plain error directed to the verdict-directing instruction given at trial. Point II contends the trial court committed plain error by giving Instruction No. 5, patterned after MAI CR 3d 329.60, that directed the jury:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about 31 December 2002, in the County of Crawford, State of Missouri, James Mulkey was a law enforcement officer, and
Second, that James Mulkey was making an arrest of the defendant for traffic offenses, and
Third, that defendant knew or reasonably should have known that a law enforcement officer was making an arrest of the defendant, and
Fourth, that for the purpose of preventing the law enforcement officer from making the arrest, the defendant resisted by fleeing from the officer, and
Fifth, that defendant fled in such a manner that created a substantial risk of serious physical injury or death to another person or other persons, then you will find defendant guilty of resisting arrest.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
As used in this instruction, the term "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.
Point II complains that the giving of Instruction No. 5 was error "in that the Information charged [defendant] with resisting an arrest for felony drug offenses whereas Instruction No. 5 instructed the jury that [defendant] was resisting an arrest for traffic offenses and therefore the instruction fatally varied from the offense charged." The state argues there was no plain error; that the giving of Instruction No. 5 was not plain error because the variance between the information and the instruction was not material or prejudicial because the offense charged by the information was the same as the offense set forth in Instruction No. 5; that whatever variance occurred did not affect defendant's ability to defend against the crime of resisting arrest.
At the time Instruction No. 5 was tendered in the form in which it was given, the trial court inquired whether defendant had any objection to it. Defendant's trial attorney replied, "No objections, Your Honor." Defendant did not raise any issue regarding Instruction No. 5 in his motion for new trial. An issue to which no objection is made at trial or in the motion for new trial is not preserved for appellate review. State v. Tripp, 939 S.W.2d 513, 519 (Mo.App.1997). Defendant acknowledges this failing by requesting plain error review.
"Requests for plain error review are not universally granted. See, e.g., State v. McMillin, 783 S.W.2d 82, 98 (Mo. banc 1990), and State v. Guidorzi, 895 S.W.2d 225, 231 (Mo.App.1995). `The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review.' State v. Valentine, *168 646 S.W.2d 729, 731 (Mo.1983), citing State v. Davis, 566 S.W.2d 437, 447 (Mo. banc 1978)." State v. Kirk, 918 S.W.2d 307, 309 (Mo.App.1996). "Under the plain error rule, `Appellant must make a demonstration that manifest injustice or a miscarriage of justice will occur if the error is not corrected.'" State v. Worthington, 8 S.W.3d 83, 87 (Mo. banc 1999), cert. denied, 529 U.S. 1116, 120 S. Ct. 1978, 146 L. Ed. 2d 807 (2000), quoting State v. Tokar, 918 S.W.2d 753, 769-70 (Mo. banc), cert. denied, 519 U.S. 933, 117 S. Ct. 307, 136 L. Ed. 2d 224 (1996).
Defendant's complaint in Point II is founded on the allegation in the information that charged defendant with resisting arrest asserting that Trooper Mulkey "was making an arrest of defendant for felony drug offenses," whereas Instruction No. 5 asserted that to find defendant guilty of resisting arrest, the jury had to find that Trooper Mulkey "was making an arrest of the defendant for traffic offenses." From its review of the record, this court does not find that the variance between the language in the information and the language in Instruction No. 5 facially establishes substantial grounds for believing manifest injustice or miscarriage of justice occurred, i.e., this court does not find, on the face of the defendant's claim, that the trial court committed plain error. See State v. Hagan, 113 S.W.3d 260, 267 (Mo.App.2003). For that reason this court declines to grant plain error review. Point II is denied. The judgment of conviction is affirmed.
BATES, C.J., and BARNEY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353268/ | 147 S.W.3d 560 (2004)
Jerry ROSAS and Shannon Rosas, Appellants,
v.
Elizabeth HATZ and Benchmark Realty, Appellees.
No. 10-01-00214-CV.
Court of Appeals of Texas, Waco.
August 25, 2004.
*562 John O'Herren, Sheehy, Lovelace & Mayfield, Waco, for appellants.
Nick R. Bray, Waco, for appellees.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION
FELIPE REYNA, Justice.
This appeal arises from the sale of a house. The buyers brought suit against the realtor, and the trial court granted summary judgment in favor of the realtor. Because we find genuine issues of material fact exist regarding essential elements of some of the buyers' causes of action, we reverse in part and affirm in part the trial court's judgment.
BACKGROUND
Dr. and Mrs. Glenn Rose listed their house for sale through realtor Elizabeth Hatz, doing business as Benchmark Realty. At this time, the Roses were renting their house to Pam Taylor. Jerry and Shannon Rosas learned of the Roses' home while dealing with Hatz regarding the sale of their own house. The Rosases purchased the property from the Roses in November 1999. Hatz provided the Rosases with a Seller's Disclosure Statement signed by Hatz and the Roses. The Rosases contend that shortly after moving into the home, they discovered undisclosed electrical and plumbing problems. Mrs. Rosas claims that after the discovery, she spoke with Taylor, who informed her that Hatz knew about the problems with the house.
The Rosases brought suit against the Roses and Hatz for breach of contract, negligent misrepresentation, fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA). Hatz filed a motion for summary judgment raising both no-evidence and traditional grounds. The trial court granted summary judgment in favor of Hatz without specifying the basis of its ruling. In addition, it severed all claims against Hatz from the pending suit, making the judgment final.
In four issues, the Rosases argue that the trial court erred in: (1) granting Hatz's motion for summary judgment because her motion did not identify the specific causes of action or elements on which summary judgment was sought; (2) sustaining Hatz's objections to the Rosases' summary judgment evidence; (3) granting summary judgment because fact issues exist; and (4) denying the Rosases' motion for new trial.
LACK OF SPECIFICITY IN HATZ'S MOTION
In the Rosases first issue, they argue that the trial court erred in granting Hatz's motion for summary judgment because it was not sufficiently specific as required by the Texas Rules of Civil Procedure. Tex.R. Civ. Pro. 166a(c), (i). Hatz's motion raises both traditional and no-evidence summary judgment claims, therefore we will review under the requisite standard required for each. Id. When a traditional summary judgment is attacked on specificity grounds, the non-movant must specially except to the motion's lack of specificity in its response. McConnell v. Southside Independent School Dist., 858 S.W.2d 337, 342-43 (Tex.1993); Protective Life Ins. Co. v. Russell, 119 S.W.3d 274, 285 (Tex.App.-Tyler 2003, pet. denied); Dyegard Land Partnership *563 v. Hoover, 39 S.W.3d 300, 307 n. 4 (Tex.App.-Fort Worth 2001, no pet.).
The Rosases excepted to the lack of specificity in their response to Hatz's motion. Nevertheless, the Rosases did not preserve this issue for appeal, because they did not obtain a ruling on their objection. We have recently held that we will not infer a ruling on a special exception based only upon the trial court's disposition of the summary judgment motion standing alone.[1]Watson v. Dallas Independent School Dist., 135 S.W.3d 208, 227-29 (Tex.App.-Waco, 2004, no pet.); Allen v. Albin, 97 S.W.3d 655, 662-63 (Tex.App.-Waco 2002, no pet.) (refusing to imply a ruling on a party's objections to summary judgment evidence); see also, Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex.App.-San Antonio 2000, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 925-27 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); see contra, Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex.App.-Fort Worth 1998, no pet.). The excepting party must obtain an explicit ruling. Because the Rosases failed to do so, they did not properly preserve this issue for appeal. We overrule the Rosases' first issue.
EXCLUSION OF SUMMARY JUDGMENT EVIDENCE
The Rosases argue in their second issue that the trial court erred in excluding portions of their evidence brought forth in response to Hatz's motion for summary judgment. We review the exclusion of evidence under an abuse-of-discretion standard. Ash v. Hack Branch Distributing Co., Inc., 54 S.W.3d 401, 409 (Tex.App.-Waco 2001, pet. denied). Even if error, a reversal of the judgment is not required unless the complaining party demonstrates that the error probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Spradlin v. State 100 S.W.3d 372, 383 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (bond forfeiture proceeding against surety). To be successful, the complaining party must usually demonstrate that the judgment turns on the evidence that was excluded. Alvarado, 897 S.W.2d at 753-54.
In response to Hatz's motion for summary judgment, the Rosases offered Hatz's deposition testimony. During Hatz's deposition testimony, Hatz's attorney objected to the form of certain questions. At the summary judgment hearing, Hatz's attorney specifically complained that the questions were a mischaracterization of Hatz's previous testimony. Hatz then argued to the trial court that his deposition objections should be sustained. The trial court sustained Hatz's objections, excluded the pertinent testimony, and did not consider the excluded testimony in its analysis of the summary judgment issue.
Because the questions Hatz objected to are a slight mischaracterization of previous testimony, we find that the court did not abuse its discretion in excluding the testimony. Furthermore, if we were to find an abuse of discretion, the error would probably not have caused the rendition of an improper judgment. Alvarado, 897 S.W.2d at 753. Evidence consisting of virtually the same testimony as that excluded is found elsewhere in the deposition. We overrule the Rosases' second issue.
SUMMARY JUDGMENT
The Rosases argue in their third issue that the trial court erred in granting *564 summary judgment in favor of Hatz because fact issues exist as to Hatz's liability. We review the decision to grant or deny a summary judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Larsen v. Carlene Langford & Assocs., Inc., 41 S.W.3d 245, 249 (Tex.App.-Waco 2001, pet. denied) (quoting Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995)). The function of summary judgment is not to deprive litigants of the right to trial by jury, but to eliminate patently unmeritorious claims and defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (Tex.1952).
Hatz's motion for summary judgment raises both no-evidence and traditional summary judgment claims. Tex.R. Civ. P. 166a(c), (i).
Standard of Review
We apply the same standard in reviewing the grant or denial of a no-evidence summary judgment motion as we would in reviewing a directed verdict. Ash, 54 S.W.3d at 413. We review the summary judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the movant. Id. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Allen, 97 S.W.3d at 659.
The standard of review for a traditional summary judgment is well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ash, 54 S.W.3d at 413. The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Grinnell, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. The non-movant need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999). But if the movant meets its burden of proof, the non-movant must present evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).
Analysis
Hatz contended in the no-evidence portion of her summary judgment motion that the Rosases can produce no evidence that she made an affirmative misrepresentation, that she withheld material information, or that she had a contractual relationship with the Rosases. Hatz contended in the traditional portion of the motion that she conclusively established her entitlement to judgment on each of these issues.
Affirmative Misrepresentations
A negligent misrepresentation claim requires that the defendant make a false representation. Fed. Land Bank Ass'n. v. Sloane, 825 S.W.2d 439, 442 (Tex.1991). While a broker has no duty to inspect the property and disclose all facts which might affect its value or desirability, one who knows all the facts and provides false information, or one who makes a partial disclosure and conveys a false impression, *565 may be liable for negligent misrepresentation. See Hagans v. Woodruff, 830 S.W.2d 732, 736 (Tex.App.-Houston [14th Dist.] 1992, no writ) (citing Kubinsky v. Van Zandt Realtors, 811 S.W.2d 711, 715 (Tex.App.-Fort Worth 1991, writ denied)); Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). Fraud and DTPA claims also require a false representation. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001); Tex. Bus. & Com.Code Ann. § 17.46(a) & (b) (Vernon Supp.2004).
The Rosases claim that Hatz told Mrs. Rosas that the house had been "partially re-wired" and the plumbing "replaced or redone" and that this constitutes an affirmative misrepresentation due to the wiring and plumbing problems discovered afterwards.
In response to Hatz's no-evidence summary judgment motion, the Rosases produced evidence that included Hatz's deposition testimony. Hatz stated that, before the Rosases closed on the home, she had a conversation with the previous renter of the house, Pam Taylor. Taylor told Hatz that "her water bills were high and she thought there was a leak." The Rosases also point to Mrs. Rosas's deposition testimony in which she recounts her conversation with Taylor. Taylor told Mrs. Rosas that she and Hatz had discussed "all the problems with the house" and that Hatz knew "all about the problems."
Hatz's representation to Mrs. Rosas that the house had been re-wired and the plumbing "redone" gives rise to a reasonable inference that any problems with the house had been fixed. This statement, in combination with the evidence that Taylor told Hatz of a leak in the home, creates a fact issue as to whether Hatz's statements were affirmative representations of false information. Given this evidence, we find there is more than a scintilla of evidence that Hatz made affirmative misrepresentations. Therefore, we find that the court erred in granting Hatz's no-evidence summary judgment motion. Ash, 54 S.W.3d at 413.
In support of her traditional summary judgment motion, Hatz points to certain evidence in her attempt to conclusively establish that she did not make affirmative misrepresentations concerning the electrical and plumbing conditions of the house to the Rosases. Specifically, Hatz points to Mrs. Rosas's deposition testimony in which she testifies that "[Hatz] told me, I believe, that the house had been partially rewired" and that the plumbing had been "replaced" or "redone." Hatz claims that this statement was not an affirmative misrepresentation because she was relying on information given to her by Dr. Rose. Hatz testified in her deposition that when she relayed her conversation with Taylor to Dr. Rose, he indicated that there were problems in the past, but "he thought that it was fixed."
While this evidence supports Hatz's contention that she did not make affirmative misrepresentations, it does not conclusively establish the proposition. The evidence in response to Hatz's no-evidence motion is enough to create a fact issue as to whether false representations were made. The same evidence precluding a no-evidence summary judgment precludes granting a traditional summary judgment against the Rosases on the same issue. Burns v. Baylor Health Care System, 125 S.W.3d 589, 600 (Tex.App.-El Paso 2003, pet. filed). Thus, Hatz is not entitled to judgment as a matter of law that she did not make affirmative misrepresentations.
Material Information Withheld
Fraud and DTPA claims allow for liability when material information is withheld. *566 Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986); Tex. Bus. & Com.Code Ann. § 17.46(b)(24). Hatz is liable only for her own misrepresentations, and not for any misrepresentations of the Roses, unless she knew of their falsity, had a duty to disclose it, and failed to disclose it. See Steptoe v. True, 38 S.W.3d 213, 217 n. 6 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Tex.Rev.Civ. Stat. Ann. art. 6573a § 15F (Vernon 2003). Thus, before Hatz's silence can be a misrepresentation, the Rosases must show some evidence of Hatz's actual knowledge of the leaky plumbing. See Steptoe, 38 S.W.3d at 217 n. 6; see also Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 572 (Tex.App.-Eastland 2000, pet. denied) (citing Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156 (Tex.1995)).
The evidence recounted in the analysis of the affirmative misrepresentations also precludes Hatz's traditional and no-evidence summary judgment motion on whether she withheld material information. Mrs. Rosas's testimony that Taylor discussed all the problems of the house with Hatz, and Hatz's testimony that Taylor told her of a possible leak raises fact issues as to whether Hatz knew of the plumbing problems. Mrs. Rosas testified that Hatz did not disclose the information regarding a leak, but instead told the Rosases that the plumbing had been "redone." We find this is more than a scintilla of evidence that Hatz withheld material information from the Rosases. Therefore, the court erred in sustaining Hatz's no-evidence summary judgment motion.
In support of her traditional motion, Hatz refers to her deposition testimony where she indicated that at the time the Rosases closed on the house she was unaware of any "leak" in the plumbing. Hatz stated that Dr. Rose had told her he had spent approximately eight hundred dollars fixing the plumbing, that he had no complaints since, and that he thought the problem was "fixed." She also walked through the house and stated, "I didn't see anything that indicated a leak...."
This evidence while persuasive is not conclusive. Indulging every reasonable inference from the evidence in favor of the nonmovants and resolving any doubts in their favor, we hold that a fact issue exists as to whether Hatz knew of problems with the home and withheld that information.
Breach of Contract
The Rosases do not raise any arguments concerning fact issues on their breach-of-contract claim. The entire substance of issue three discusses fact issues as to the elements of misrepresentation.
Accordingly, we sustain the Rosases' third issue as to the fraud, negligent misrepresentation and DTPA claims and overrule it as to the breach-of-contract claim.
CONCLUSION
Because of our disposition of issue three, we need not address the Rosases' fourth issue. We affirm the judgment regarding the breach-of-contract claim. We reverse the judgment regarding the Rosases' negligent misrepresentation, fraud, and DTPA claims and remand this cause to the trial court for further proceedings consistent with this opinion. See Ash, 54 S.W.3d at 419.
NOTES
[1] Watson v. DISD discusses the split of the courts of appeals on this issue. Watson, 135 S.W.3d at 227-29. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353450/ | 62 S.W.3d 313 (2001)
In re FAMILY HOSPICE, LTD. and St. John's Episcopal Retirement Corp.
No. 08-00-00478-CV.
Court of Appeals of Texas, El Paso.
November 29, 2001.
*314 Jill C. Pennington, Max E. Wright, Wright & Kidwell, PC, Midland, Scott M. Tidwell, McMahon, Tidwell, Hansen, Atkins & Fowler, P.C., Odessa, for relator.
Tryon D. Lewis, Spencer W. Dobbs, Odessa, for respondent.
Before BARAJAS, C.J., LARSEN, and McCLURE, JJ.
OPINION
RICHARD BARAJAS, Chief Justice.
This is an original proceeding in mandamus. Relators, Family Hospice, Ltd. and St. John's Episcopal Retirement Corporation, petition this Court to mandamus Respondent, The Honorable Tyron Lewis, Judge of the 161st Judicial District Court of Ector County, Texas, to vacate his order partially granting Relators' Motion to Compel and to grant Relators' Motion to Compel in its entirety. For the reasons stated, we conditionally grant the Relators' petition for writ of mandamus.
I. SUMMARY OF THE EVIDENCE
Real Parties in Interest, Cirildo Fernandez, Victor Fernandez and Rosa Sabreda Fernandez, filed the underlying wrongful death lawsuit alleging negligence on the part of Relators in their care of Paula Torres Fernandez, deceased. Ms. Fernandez, a diabetic, was injured when her toes were crushed by her wheelchair while she was being transported in the chair. Ms. Fernandez developed a wound on her right foot, which later became infected and required hospitalization. Upon returning to the nursing home, Ms. Fernandez's right toes were again run over while she was *315 being transported in her wheelchair. Ms. Fernandez's wound began to deteriorate and the end of her right foot was amputated. When the stump did not heal, doctors amputated above the knee. Ms. Fernandez died a few weeks later.
Family Hospice sent Real Parties in Interest a request for disclosure pursuant to Rule 194 of the Texas Rules of Civil Procedure. Real Parties in Interest designated Becky Cameron, RNC, CLNC, as their testifying expert. Family Hospice then issued its cross-notice of deposition with subpoena duces tecum, regarding the oral deposition of Cameron. On the second day of Cameron's deposition, it became known that documents, which were responsive to the request for disclosure and subpoena duces tecum, were being withheld. Real Parties in Interest then asserted for the first time a non-core work-product privilege for the documents requested in the notice.
Family Hospice filed a Motion to Compel requesting the court to order Real Parties in Interest to produce the documents. After conducting a hearing, Judge Lewis granted in part and denied in part Family Hospice's motion. Specifically, Real Parties in Interest were ordered to produce notes made by Cameron in her review of Interrogatories Nos. 15, 16, 17, and 18. All comments made by Cameron in her review of all Requests for Production were ordered produced, except Nos. 17, 34-37, 40, 41, 51, 52, and 54-57, which the court found were protected by the non-core work-product privilege and were not discoverable. The court found that notes made by Cameron in response to Interrogatories Nos. 1, 2, 4, and 14 were protected by the non-core work-product privilege and were not discoverable. Real Parties in Interest were ordered to produce all responses to the questions prepared by Cameron for questioning of one of the defendants' employees. The court found the questions themselves to be protected by the work-product privilege and thus not discoverable. Finally, the court found that Real Parties in Interest did not waive any objection to the subpoena duces tecum. It is from this order that Relators seek relief.
II. DISCUSSION
Mandamus will lie only to correct a clear abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig.proceeding). Moreover, there must be no other adequate remedy at law. See id. Relators present two issues: 1) Whether documents tendered for in camera inspection are protected by the non-core work-product privilege and are non-discoverable?; and 2) Whether Real Parties in Interest waived their right to assert an objection to the subpoena duces tecum issued by Relator, Family Hospice?
A. Clear Abuse of Discretion
An appellate court rarely interferes with a trial court's exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)(orig.proceeding).
Relators contend that the entirety of the documents made subject of the Motion to Compel are discoverable and the Respondent incorrectly ruled that the documents are governed by the non-core work-product privilege under the Texas Rules of Civil Procedure. Rule 192.3(e) provides:
Testifying and Consulting Experts. The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert *316 are not discoverable. A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which a testifying expert will testify;
(3) the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;
(4) the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them;
(5) any bias of the witness;
(6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert's testimony;
(7) the expert's current resume and bibliography.
TEX.R. CIV. P. 192.3(e).
Because the documents in question are the product and/or documentation of the mental impressions of a testifying expert and because the Texas Rules of Civil Procedure provide that any information regarding a testifying expert's mental impressions or opinions are discoverable regardless of when and how the information was acquired, we hold that the ruling of the trial court constitutes a clear abuse of discretion. See TEX.R. CIV. P. 192.3(e)(3), (4), and (6).
B. No Adequate Remedy by Appeal
An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. See Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986)(orig.proceeding). Mandamus will not issue where there is "a clear and adequate remedy at law, such as a normal appeal." Walker, 827 S.W.2d at 840 (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984)). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (quoting JAMES SALES, ORIGINAL JURISDICTION OF THE SUPREME COURT AND THE COURTS OF CIVIL APPEALS OF TEXAS IN APPELLATE PROCEDURE IN TEXAS § 1.4(1)(b) at 47 [2d ed.1979]).
The Texas Supreme Court has noted three situations in the discovery context when an appeal is not an adequate remedy and when mandamus is proper. First, when the trial court erroneously orders the disclosure of privileged information that will materially affect the rights of the aggrieved party, such as documents protected by the attorney-client privilege, an appeal will not be an adequate remedy when the appellate court is unable to cure such error. See Walker, 827 S.W.2d at 843. Relators have made no such complaint in the matter before us.
Second, when the trial court disallows discovery and the missing discovery cannot be made part of the appellate record, thereby precluding appellate review, mandamus is a proper remedy. See id. Relators have made no such complaint in the matter before us.
*317 Finally, where the party's ability to present a viable claim or defense is vitiated or severely compromised, appellate remedy may be inadequate. See id. Relators contend that they will be forced to defend the cause to disposition without the benefit of the subject documents, which will compromise their defenses and vitiate their ability to adequately prepare for trial. We agree and hold that Relators do not have an adequate remedy by appeal. Accordingly, we sustain Issue No. One.[1]
We conditionally grant the Relators' petition for writ of mandamus. Nonetheless, we are confident the trial court will comply with this order, thus writ will not issue unless it fails to vacate the order of September 18, 2000, and to grant Relators' Motion to Compel in its entirety.
NOTES
[1] Given our disposition of Issue No. One, we need not address Issue No. Two. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353554/ | 41 Cal. App. 2d 705 (1940)
WESLEY KING, Appellant,
v.
SAN JOSE PACIFIC BUILDING AND LOAN ASSOCIATION (a Corporation), Respondent.
Civ. No. 11278.
California Court of Appeals. First Appellate District, Division Two.
November 27, 1940.
Raymond Perry and Warren H. Pillsbury for Appellant.
Faber L. Johnston and Harold C. Holmes, Jr., for Respondent.
Sturtevant, J.
The plaintiff has appealed from a judgment in favor of the defendant in an action pleading several counts as for money had and received. In support of his appeal he has brought up a bill of exceptions.
Each cause of action represented a claim of a different person and such claims were assigned to the plaintiff who sued thereon as assignee. Prior to July 1, 1931, the defendant was, and has continued to be, a building and loan association. Prior to that date it had obtained many depositors including all of said assignors. No one of the assignors was a stockholder. On February 1, 1932, the defendant ceased to pay withdrawals. During the year 1934 the assignors sold to third parties their certificates of deposit for about fifty cents on the dollar. Claiming that in refusing to pay withdrawals the defendant breached its contract, the plaintiff asserted that he was entitled to recover, as money had and received, the difference between the amount of the deposit claim of each of his assignors and the amount each of them received from his or her vendee. *707
Before we proceed to discuss the evidence it is necessary to consider the pleadings and findings. As stated above, the plaintiff's complaint alleged in each count a cause of action for money had and received. It also contained a formal allegation that plaintiff's assignors had fully performed. The defendant's answer contained some admissions, but denied many material allegations contained in plaintiff's complaint. The answer set up the statute of limitations. (Secs. 337, 338 and 343, Code Civ. Proc.) The findings, in effect, find that all the allegations of the plaintiff's complaint are untrue and all the allegations of defendant's answer are true. There are no other findings. The complaint was filed August 20, 1938.
[1] As a written contract theretofore existed between each of the assignors and the defendant, the right of an assignor to sue on a common count was not unlimited. In Castagnino v. Balletta, 82 Cal. 250 [23 P. 127], at page 258, the court quotes with approval as follows: "1. So long as the contract continues executory, the plaintiff must declare specially; but when it has been executed on his part, and nothing remains but the payment of the price in money by the defendant, which is nothing more than the law would imply against him, the plaintiff may declare generally, using the common counts, or may declare specially on the original contract, at his election. If the mode of payment was any other than in money, the count must be on the original contract. And if it was to be in money, and a term of credit was allowed, the action, though on the common counts, must not be brought until the term of credit has expired. This election to sue upon the common counts, where there is a special agreement, applies only to cases where the contract has been fully performed by the plaintiff." [2] And in section 6.01 of the Building and Loan Act it is provided that each association must prescribe by its by-laws or prescribe in its contracts the period of intention to withdraw and that a notice of intention to withdraw must be in writing and served on the association. The record shows that said by-law was adopted, also that the contract specified in the statute was entered into. However, the record shows no written notice was given by any single one of the assignors. The plaintiff asserts that the defendant waived compliance with the requirement to give notice. (Watson v. Stockton Morris Plan Co., 34 Cal. App. 2d 393, 407 [93 PaCal.2d 855].) That *708 case rested on the facts there involved. Here the trial court by its judgment, in effect held there was no waiver. Plaintiff quotes no part of the record showing that the court's implied finding is not sustained by the record. We find no evidence to the contrary. It follows such assignors never fully performed their contracts and the plaintiff did not prove a case which entitled him to a judgment on a common count as for moneys had and received. [3] Furthermore, on the trial it soon transpired that the plaintiff's assignors, had, as early as 1934, sold outright their certificates to third persons. All contractual obligations of the defendant in favor of said vendors arising out of said certificates passed by such sale from said assignors to said third parties. The regularity of the issuance of said certificates to plaintiff's assignors is not questioned. It is not claimed that the sales of said certificates or the certificates of membership have been rescinded. These additional facts show other reasons why the plaintiff was not entitled to recover on a count as for moneys had and received.
[4] As will presently appear the plaintiff complains of certain wrongful acts committed by the defendant. Such wrongful acts constituted grounds for actions ex delicto but they were not contractual and in no manner supported a count in indebitatus assumpsit. Plaintiff's action, if any, should have been for damages. (12 Cal.Jur. 786; Hallidie v. Enginger, 175 Cal. 505, 509 [166 P. 1].) [5] Under these circumstances the present case is governed by the provisions of section 471 of the Code of Civil Procedure and the trial court did not err when it ordered a judgment for the defendant. There was a total failure of proof. (Code Civ. Proc., sec. 471; 21 Cal.Jur. 267 "Pleading", sec. 185.)
[6] The briefs recite certain facts which the plaintiff claims tend to show the defendant wrongfully broke down its financial obligation to the plaintiff's assignors for the purpose of benefiting the stockholders of the defendant. (Ralph A. Badger & Co. v. Fidelity Building & Loan Assn., 94 Utah, 97 [75 PaCal.2d 669].) It is sufficient to state that the record in the present case does not present such questions. They were not pleaded, there are no findings on them, and they did not enter into the judgment. Nevertheless the plaintiff introduced evidence to establish the theory set forth in the case of Ralph A. Badger & Co. v. Fidelity *709 Building & Loan Assn., supra. We have carefully read that evidence. If the trial court had made findings thereon such findings must necessarily have been adverse to the plaintiff. It follows the plaintiff was not prejudiced by the failure of the court to make findings thereon. (24 Cal.Jur. 994.)
Again the plaintiff makes many contentions to the effect that the defendant made borrowings not authorized by law from banks and made payments to the banks in violation of its obligations to its depositors. If those claims were well founded they should have been communicated to the building and loan commissioner, who, no doubt, would have caused proper proceedings to have been commenced against the defendant. (Sec. 13.11, Building and Loan Act.) But, as shown above, such matters are not before us and we express no opinion thereon.
We find no error in the record. The judgment appealed from is affirmed.
Nourse, P. J., and Spence, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1353578/ | 614 S.E.2d 169 (2005)
273 Ga. App. 17
MARSHALL
v.
The STATE.
King
v.
The State.
Nos. A05A0429, A05A0430.
Court of Appeals of Georgia.
April 19, 2005.
*170 Robert R. McLendon IV, Blakely, for appellant (case no. A05A0429).
Melvin R. Horne, Cairo, for appellant (case no. A05A0430).
J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.
Smith, Presiding Judge.
Following a joint bench trial, Nick Marshall and Tyrone King filed separate appeals from their convictions for possession of cocaine and marijuana with intent to distribute. We have consolidated the appeals for review. Both Marshall and King challenge the trial court's denial of their motions to suppress. King also raises the sufficiency of the evidence to support his conviction for distributing cocaine and marijuana. Finding no error, we affirm.
1. Marshall and King contend the trial court erred in denying their motions to suppress evidence because the affidavit and the warrant were amended after the warrant issued, and the amendment was not sworn to by the officer presenting the affidavit or signed by the magistrate.
The record shows that after the original warrant was issued, the affiant officer checked his notes and realized that he had made an error in the affidavit regarding the description of the location of the house to be searched: He had described the house as the second house on the right, when actually it *171 was the third house on the right. He spoke with a magistrate, who told him to "come by and change it." After verifying that the house was indeed the third house on the right, the officer brought the original affidavit and warrant to the magistrate, who was not the original issuing magistrate. The magistrate changed the word "second" to "third" in both documents and initialed the change. The officer did not present evidence under oath to the second magistrate, and the second magistrate did not sign the warrant. The officers executed the warrant and found cocaine, marijuana, scales, and baggies.
Marshall and King, who both resided in the house identified in the warrant, were arrested and charged with possession with intent to distribute both cocaine and marijuana. Both Marshall and King argue that their motions to suppress, based upon the initialed change, should have been granted because the officer did not give a written complaint, under oath, regarding the new information, as required by OCGA § 17-5-21(a). They also argue that the warrant was invalid because the second magistrate received no information under oath and therefore probable cause was not shown before the second magistrate. We do not agree.
(a) We note initially that it is clear from the Georgia Supreme Court's recent holding in Green v. State, 275 Ga. 569, 570 S.E.2d 207 (2002), that an amendment approved by a magistrate other than the issuing magistrate need not invalidate a warrant. The theory "that a second magistrate should not authorize the amendment or alteration of another magistrate's warrant runs contrary to Georgia case law." (Citation and footnote omitted.) Id. at 570, 570 S.E.2d 207. The second magistrate therefore had authority to amend the warrant issued by the first magistrate.
(b) OCGA § 17-5-31 provides: "No search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused." The error in the description of the location to be searched was just such a "technical irregularity." The warrant included the residence's complete and correct address, as well as the city where it was located and a physical description of the house: a "green and white ... single-wide mobile home." The warrant also specified that the residence did not face the street named in its address.
"A description is sufficient if a prudent officer executing the warrant is able to locate the place definitely and with reasonable certainty." (Citation omitted.) State v. Megdal, 139 Ga.App. 397, 398(1), 228 S.E.2d 333 (1976). King argues that "[i]t is entirely conceivable that the executing officers could and likely would go to the wrong residence." Contrary to King's assertion, however, given the wealth of information provided in the original warrant, we conclude that it is entirely inconceivable that executing officers likely would have gone to the wrong house. Changing the word "second" to "third" therefore cannot have affected any substantive rights. The trial court was authorized to find that the changed word was "clearly typographical and ... not so material as to destroy the integrity of the affidavit or the validity of the warrant." (Citations and punctuation omitted.) Carlton v. State, 251 Ga.App. 339, 341(1), 554 S.E.2d 318 (2001).
(c) Marshall and King argue that the second magistrate lacked probable cause to support the search warrant because no sworn testimony was taken. This enumeration has no merit.
No question exists that the first magistrate had before him information given under oath that constituted probable cause to issue the warrant. Probable cause did not evaporate simply because a second magistrate corrected an error in one word that we have found inconsequential. Under OCGA § 17-5-31, the technical irregularity and correction did not invalidate the original warrant issued by the first magistrate. Probable cause therefore still existed to support the warrant and its execution. See Wells v. State, 196 Ga.App. 133, 133-134(1), 395 S.E.2d 296 (1990) (omission of address in body of warrant did not affect validity); Megdal, supra, 139 Ga.App. at 398(1), 228 S.E.2d 333 (warrant still valid even though erroneously described house to be searched as two stories instead of one story). The trial court did not err in denying the motions to suppress.
*172 2. King also contends that the evidence presented at trial was insufficient to support his convictions because no evidence connected either him or Marshall to the illegal substances found in their joint residence and no evidence was presented that he actually sold or otherwise distributed the substances.
(a) As to possession, the evidence was clear. The parties stipulated that the drugs were found under the kitchen sink and behind wall paneling next to the front door. They also stipulated that no one was at the residence other than Marshall and King, and that Marshall and King lived there. This evidence created a rebuttable presumption that King possessed the cocaine and marijuana. Wilson v. State, 231 Ga.App. 525, 526-527(1), 499 S.E.2d 911 (1998). The presumption was not rebutted, and the trial court was authorized to find that Marshall and King had joint constructive possession of the drugs. Id.
(b) King argues that "[t]he State's only effort to suggest `distribution' or any `intent to distribute' the contraband substances was simply the quantities of the substances, the scale, the razor blade and the baggies." He also asserts that no testimony suggested "distributor" as opposed to "user" quantities. His contentions are belied by the record. An additional stipulation was signed by both defendants, their counsel, and the prosecutor. The parties stipulated that an officer of the Southwest Georgia Drug Task Force, if called, would testify based on his training and experience that "the amount of marijuana found under the kitchen sink, ... and the amount of cocaine found in the wall behind a piece of paneling, ... were both consistent with an amount that a dealer would possess and were inconsistent with an amount that a typical user would possess." In addition, the parties stipulated that baggies of the type that held the drugs found were discovered in both the kitchen and a bedroom. Scales and a razor blade were found on a table in the living room, and $1,709 was found in a pants pocket in a bedroom.
Mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. But additional evidence may prove intent to distribute.
[A] qualified expert may offer opinion testimony regarding his knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution. Such expert testimony, coupled with evidence of the amount of cocaine found in the defendant's possession, is admissible to prove the defendant's intent to distribute the controlled substance.
(Citation and punctuation omitted.) Bacon v. State, 225 Ga.App. 326, 327, 483 S.E.2d 894 (1997). Additional evidence may also be used to prove the intent to distribute, including the possession by the accused of large amounts of currency. See Burse v. State, 232 Ga.App. 729, 730(1), 503 S.E.2d 638 (1998). Scales and plastic baggies on the premises have also been held to be indicia of intent to distribute. Smith v. State, 226 Ga.App. 150, 151(2), 485 S.E.2d 538 (1997). Ample evidence was presented to authorize the trial court to find King guilty of possession with intent to distribute under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Judgments affirmed.
ELLINGTON and ADAMS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/875721/ | 506 P.2d 449 (1973)
Charles A. HUTCHINS, Plaintiff and Respondent,
v.
BLOOD SERVICES OF MONTANA, an Arizona corporation, and Billings Deaconess Hospital, a Montana corporation, Defendants and Appellants.
No. 12239.
Supreme Court of Montana.
Submitted January 22, 1973.
Decided February 14, 1973.
Rehearing Denied March 2, 1973.
*450 Moulton, Bellingham, Longo & Mather, Billings, W.H. Bellingham argued, Billings, Lewis & Roca, Phoenix, Ariz., Douglas L. Irish argued, Phoenix, Ariz., for defendants and appellants.
Scott, Scott & Baugh, Billings, Jeffrey J. Scott argued, Omaha, Neb., G. Todd Baugh appeared, Billings, for plaintiff and respondent.
CASTLES, Justice.
This is an appeal from a judgment based on a jury verdict returned October 22, 1971, in Yellowstone County, in favor of plaintiff Charles A. Hutchins and against defendant Blood Services of Montana. Hutchins claimed Blood Services negligently caused him to contract serum hepatitis. The trial court denied defendant's motion for directed verdict at the close of plaintiff's case and again at the close of all the evidence. The trial court also denied defendant's combined motion for judgment notwithstanding the verdict and for new trial. This appeal is from the judgment as well as the denial of motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial.
Plaintiff Charles A. Hutchins, 56 years of age, underwent abdominal surgery in September 1966. During the course of that surgery he received two units of whole blood which was supplied by Blood Services of Montana.
Defendant is an Arizona corporation authorized to do business in the state of Montana under the name Blood Services of Montana. Blood Services is a nonprofit medically-sponsored community blood banking system which maintains 27 facilities serving about 850 hospitals in 18 states. It provides nearly 275,000 units of blood for transfusions annually.
In Montana, as elsewhere, Blood Services utilizes a variety of methods to persuade people to become blood donors, in order to obtain and maintain a constant supply of blood to fulfill its commitments to the communities it serves. It invites friends and relatives of patients who have received transfusions to replace blood used and thereby obtain a credit on the patient's hospital bill. Blood Services will arrange for the issuance of an insurance policy to a blood donor to insure him and his family against their potential blood needs for one year in exchange for a single donation. It will also make a donation in the donor's name to a charity of the donor's choice, if the donor so wishes.
When an individual presents himself as a prospective donor at Blood Services a determination is made, depending on the needs of the community, if Blood Services will accept the service of such volunteer, if he is acceptable as a donor. In order to assure itself of a supply of volunteers, Blood Services compensates them for their availability and willingness to serve either by the insurance plan offered to all donors, or a charitable donation, or a direct payment in the amount of $5.
Blood Services' procedures for gathering, testing, processing and distributing blood are established in three sets of regulations: (1) Federal regulations issued by the United States Public Health Service, National Institutes of Health, Division of *451 Biologic Standards, by which it is regularly inspected; (2) the accreditation standards of the American Association of Blood Banks, by which it is accredited and regularly inspected; and (3) its own internal Medical-Technical Procedures Manual, prepared by Dr. John B. Alsever, Blood Services' Vice-President for Medical Affairs, which manual meets or exceeds all requirements of the Public Health Service and the American Association of Blood Banks. Here, there was no contention that any regulation or procedure was violated by Blood Services.
On September 22, 1966, donor Sharon Holm, a 19 year old resident of Butte, felt and appeared to be in good health. She had never previously donated blood. At Blood Services' Butte facility where she donated, Sharon and her blood were screened, tested and processed by Blood Services' personnel in accordance with all of its standard testing and screening procedures. Sharon gave no history or indication from which it might be inferred she could be a hepatitis carrier. She was paid $5 by Blood Services for her donation of blood. Sharon Holm's blood was transfused to plaintiff Hutchins on September 29, 1966, while he was undergoing abdominal surgery. About three weeks after Hutchins received the blood, Sharon Holm, having been ill for a few days, was diagnosed as having hepatitis. Hutchins' doctors in Billings were immediately notified but it was too late and Hutchins also became ill with hepatitis.
Blood Services raises several issues on appeal. We will deal primarily with the question of whether plaintiff by sufficient evidence adequately established negligence, so as to create a jury question.
Plaintiff attempted to prove Blood Services was negligent in that it did not use a laboratory test known as the SGOT test on accepted blood and in the handling of the paid donor, since paid donors allegedly have a much higher rate of hepatitis than volunteer donors. We have reviewed the evidence in the light most favorable to the plaintiff and find plaintiff did not establish any case of negligence against Blood Services.
Plaintiff Hutchins asserted that Blood Services by its negligence caused him to contract serum hepatitis. He proffered two acts of negligence on Blood Services' part. In a negligence action it is incumbent upon the plaintiff to prove, among other elements, a duty owing from defendant to plaintiff and a breach of that duty. See: Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57.
We first consider the allegation that Blood Services did not use the SGOT test. SGOT is a laboratory test developed and used for many years in following the clinical course of persons who are known to be ill. In general, it measures the level of a certain enzyme in the blood. Cells damaged by trauma or disease release this enzyme in the blood. Hence, an increased SGOT level may indicate there are damaged or diseased cells somewhere in the body.
It was Blood Services' failure to use the SGOT test that was charged as negligence. In 1966, when the incident in this case occurred, not a single blood bank in the nation had ever used the test to screen blood donors. In other words, the standard of care established throughout the nation was not to use the SGOT test. This same standard of care was established for Butte and Billings, Montana.
Plaintiff produced one witness, Dr. J. Garrott Allen, a professor of surgery at Stanford University and a practicing surgeon. Dr. Allen is a recognized expert in the field of what we will generally call blood. Over Blood Services' objection, Dr. Allen was allowed to express his opinion that if the SGOT test had been given to Sharon Holm at the time of the taking of her blood, it "probably" would have given a positive reaction. However, Dr. Allen testified that no blood bank in the United States, including his own hospital's blood bank in California, had ever used the SGOT test to screen donors.
*452 Dr. Allen then, as well as all other witnesses, established a standard of care as regards the SGOT test, as a standard of not using the SGOT test. Neither Dr. Allen nor any other witness expressed the opinion: (a) that a blood bank's decision not to use the SGOT test was a deviation from, or contrary to, the approved custom or practice in any other blood bank, or (b) that the conclusion of the entire blood banking community not to perform this test deviated from what anyone would consider reasonable or prudent practice. Dr. Allen did say he personally would like it done on blood he receives. But, one person's preference does not establish a standard of care.
This was the only evidence offered by plaintiff. However, in order to prove a case of actionable negligence, plaintiff must do more than have an expert witness testify that he would like to have the test used. Plaintiff had to establish, by competent medical evidence, either that Blood Services did something blood bankers of ordinary care, skill and diligence would not have done under similar conditions, or it omitted to do something they would have done under similar circumstances. Here, it was established that no one in the blood banking business used the SGOT test to screen blood donors. Neither the government's regulating agency, the blood bankers' accrediting association, the American Medical Association, nor anyone else in authority had ever asked blood bankers to use the SGOT test in screening donors.
It was established that Blood Services' decision was not to use the SGOT test. But the testimony of a professor at a medical school that he would like to have the test done on the blood he uses, does not establish a case of negligence. This Court stated in Mang v. Eliasson, 153 Mont. 431, 435, 458 P.2d 777, 780:
"An additional test of actionable negligence is not what might have prevented a particular accident, but what reasonably prudent men would have done in the discharge of their duties under the circumstances as they existed at the time of the accident. Milasevich v. Fox Western Montana Theatre Corp., 118 Mont. 265, 272, 165 P.2d 195."
Here then, we must look to what actually happened and what a reasonably prudent blood bank would have done in the same situation. Using that test, and considering the circumstances as they were in 1966, it was not negligence for Blood Services not to use the SGOT test, it acted as a reasonably prudent blood bank.
The uncontradicted circumstances at the time were: (a) no blood bank in the United States was using the SGOT test as a routine screening test; (b) neither federal regulations nor the accrediting standards of the American Association of Blood Banks required or had ever required the use of the SGOT test on prospective donors; (c) neither the Public Health Service, the American Association of Blood Banks of the American Medical Association Committee on Transplantation and Transfusion had ever recommended the use of SGOT testing; and (d) although some writers had suggested investigating the usefulness of SGOT for blood donors, those who were recognized as authorities in blood banking had concluded it was not a useful or meaningful test for purposes of screening blood donors. No witness, not even Dr. Allen, expressed the opinion that Blood Services' decision failed to comply with any standard of practice or recognized degree of care anywhere other than in Dr. Allen's private preferences. This Court said in Dunn v. Beck, 80 Mont. 414, 423, 260 P. 1047, 1050:
"`Nor does the fact that other physicians might have adopted other methods necessarily render the attending physician liable, nor show negligence or want of skill or care. If the method adopted * * * has substantial medical support, it is sufficient. * * * And, where there is a difference of opinion among practical and skillful surgeons as to the practice to be pursued in certain cases, a physician may exercise his own best *453 judgment, employing the methods his experience may have shown to be best, and mere error of judgment will not make him liable in damages, in the absence of a showing of want of care and skill.'"
That standard is clearly applicable here. There was no evidence introduced to show that Blood Services failed to use care and skill, and it was established its practice was the same as all other blood banks. The public interest requires blood banks to be vigilant but this consideration would not justify the lowering of the standard of proof in cases of this kind, for in doing so the public interest would be ill served. If those who supply the very fluid of life were required, without the slightest evidence of deviation from approved medical practice, ipso facto to pay damages any time a person whose life they save suffers an untoward result, such a charitable nonprofit enterprise would be hazardous and self-defeating. We do not find from the evidence that Blood Services was negligent in not using the SGOT test.
The second alleged negligent act was that since Blood Services was using paid donors, it was negligent in not taking the necessary steps to make sure the blood from its paid donors was not infected.
Plaintiff's theory was that in accepting blood from Sharon Holm, a paid donor, the risk she would be carrying hepatitis was eleven times higher than a volunteer donor. Since this is a higher risk of hepatitis, plaintiff maintains Blood Services should have taken necessary steps to determine if the blood was infected.
This theory is based on studies of the types of people who exchange blood for money. It was Dr. Allen who had made part of the studies and made the observation during trial that the risk when dealing with paid donors was much higher than when dealing with volunteers. Dr. Allen gave a two-fold basis upon which his opinion was based: (a) his own studies at the Illinois State Penitentiary, which showed prisoners in state penitentiaries carry a high hepatitis risk, and (b) studies of others which show that drug addicts, derelicts and skid-row bums all carry a high risk of hepatitis.
Even accepting everything plaintiff offers as true, that still does not show Blood Services was negligent when dealing with Sharon Holm. The uncontroverted evidence was that Sharon did not fall into the category of a dangerous donor such as prison inmates, bums, or addicts; she did not live in a slum or skid-row district; Blood Services does not accept, paid or not, the type of donor in the category Dr. Allen and others found to be dangerous; and Blood Services facilities were not located in a slum or skid-row district. The evidence of Dr. Allen on the risk of using paid donors was not applicable to the situation of Sharon Holm. There was no evidence to bring Sharon Holm within the circle of those persons whose blood is more likely to contain hepatitis than blood of the general population. It may be that prisoners, bums, and addicts who sell their blood are high risk donors, but it does not follow that everyone who sells his blood is a high risk donor. It is not negligence to offer to buy blood, when a blood bank finds that is the only way it can meet its obligations.
Since the only two acts of negligence relied upon by plaintiff failed to establish negligence, the case was improperly submitted to the jury.
Therefore, we order the judgment of the district court reversed and the cause dismissed.
JAMES T. HARRISON and DALY, JJ. concur.
HASWELL, J., took no part in this Opinion.
JOHN C. HARRISON, Justice (concurring in part and dissenting in part):
I concur with the majority on issue one, that the case should be reversed, but I would return the case for a new trial.
I do not agree with the majority on issue two as to paid blood donors. The facts, as I understand them, concerning *454 Sharon Holm would have made her a high risk donor. These facts brought out during trial need not be stated, but they did indicate that if defendant had made any inquiries she might not have been allowed to sell her blood.
Numerous cases have arisen in recent years where either hospitals have been sued or a private blood bank, as here, for imperfect blood. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867, and cases cited therein. Some of these cases speak of an action in implied warranty ex contractu, and hold such an action cannot lie because the furnishing of blood is not a sale.
One court held that a distinction might possibly be drawn between a hospital that furnished medical services, and a blood bank which collected the blood and supplied it to the hospital. Koenig v. Milwaukee Blood Center, Inc., 23 Wis.2d 324, 127 N.W.2d 50.
I believe there is a distinction between a suit against a blood bank as opposed to a hospital. 103 U.Pa.L.Rev. 833; Gottsdanker v. Cutter Laboratories, 182 Cal. App.2d 602, 6 Cal. Rptr. 320, 79 A.L.R.2d 290.
I think as a matter of public policy that we should depart from the "sale v. service" category and examine the issue here as one primarily involving the question of implied warranty. Here expressions of sound policy preferences are more in harmony with the doctrine, which I feel should control. See Prosser, Strict Liability to the Consumer, 69 Yale Law Journal 1099, 1124. A hospital supplying whole blood to a patient may be merely performing service incident to the overall medical attention being furnished, such theory of "service" should not be extended to the private blood bank which collects and distributes the blood.
I would adopt the implied warranty theory as it applies to the case before us. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354023/ | 19 Ariz. App. 289 (1973)
506 P.2d 1074
VIVIAN ARNOLD REALTY CO., Vivian Arnold, Individually, and Western Surety Company, Inc., Appellants,
v.
Jack A. McCORMICK and Barbara A. McCormick, husband and wife, and Homer H. Osborne and Dorothy Osborne, husband and wife, Appellees.
No. 2 CA-CIV 1226.
Court of Appeals of Arizona, Division 2.
March 6, 1973.
*291 DeConcini, McDonald & Brammer, P.C., by John R. McDonald and J. Wm. Brammer, Jr., Tucson, for appellants.
Vincent E. Odgers, Tucson, for appellees Osborne.
Kali & Allen, P.C., by David I. Kali and Carl B. Pratt, Tucson, for appellees McCormick.
HOWARD, Judge.
Subsequent to the trial court's denial of a motion for a new trial, defendants-appellants Vivian Arnold, individually, and Vivian Arnold Realty Company appealed. The trial court, sitting without a jury, made a ruling declaring a deposit and receipt agreement to be void and that the $500 earnest money deposit be returned to the purchasers, plaintiffs-appellees McCormick. The trial court also entered judgment in favor of (1) the sellers, defendants-appellees Osborne, against the appellants, who had been made defendants on a cross-claim by Osborne, in the amount of $500 for damages caused by appellants' negligence, (2) Vivian Arnold's salesperson, Carolyn Watchman, also a defendant on Osborne's cross-claim.
The salient facts leading to this litigation are as follows. On September 14, 1969, Jack A. McCormick and wife, residents of the State of Arizona, signed a deposit and receipt agreement to purchase a certain lot located in Pima County, Arizona, from Homer H. and Dorothy Osborne, residents of Colorado, with Vivian Arnold Realty Company as listing broker for the sellers. The terms of the sale as expressed in the agreement were that the purchasers paid $500 as earnest money at the time of the agreement and the remainder of the $6,000 purchase price was to be paid in cash at closing on or before November 14, 1969. The sale was contingent upon the purchasers being able to obtain financing for construction of a home on the property prior to closing. Arizona Land Title Company was employed as escrow agent, the agreement specifically providing that "all funds and instruments necessary to such closing shall ... be deposited by the respective parties in escrow with the appropriate agent." In the event of a forfeiture of the earnest money the broker was entitled to one-half as compensation for services rendered.
On September 30th, Vivian Arnold wrote to the Osbornes advising that the home being built by the McCormicks on the subject lot involved a "package deal" and that the monies for the lot would come out of the "construction draws." Osborne replied in a letter dated October 12, 1969, that according to the deposit receipt and agreement, $6,000 was to be paid by the purchasers upon closing and if he had to wait for his money he wanted an additional $600 for his property. The following day, October 13th, Carolyn Watchman wrote to Mr. Osborne advising that he submit his deed to escrow in order for the McCormicks to obtain final approval of their loan.
On October 20th, Vivian Arnold wrote to Homer Osborne explaining that when Mr. McCormick made his offer on the lot he was not aware that Osborne would be paid in draws and would not receive the $6,000 in one payment. She asked that he give serious consideration to McCormick's request and sign an attached authorization *292 to receive payment for the lot in three construction draws as it would result in very little delay in receiving his money. Also attached was a prepared joint tenancy deed from the Osbornes to the McCormicks requiring the Osbornes' signatures. Mr. Osborne's responsive letter was dated October 27, 1969:
"Dear Vivian:
Let me know when you are ready to close according to the terms of the Deposit Receipt and Agreement and I will mail the deed to the Arizona Land Title and Trust Company."
There was no further correspondence between Vivian Arnold and the Osbornes until November 18th, four days after the agreed-upon date for closing, nor did Mr. and Mrs. Osborne submit the necessary deed to the escrow agent for such closing in accordance with the provisions of the deposit and receipt agreement.
At deposition, Mr. McCormick stated that during the first week in November, 1969, he had retained counsel and was advised that if he did not want to lose his deposit, he had to "come up with the six thousand dollars and close the deal." Mr. McCormick added:
"I didn't want to come up with six thousand dollars to close the deal, but I also didn't want to lose five hundred."
Mr. McCormick also acknowledged that he had met the financing contingency of the deposit and receipt agreement and had obtained the necessary $6,000 cash for closing after contacting his father in New Mexico who sent him the money. McCormick's position at deposition, in his complaint and on appeal is that he gave notice to Osborne's agent, Vivian Arnold Realty, by means of unanswered telephone messages left by his attorney that he was ready to close. Mr. McCormick, however, did not appear at the closing of escrow on or before November 14, 1969, nor did he present the necessary funds for closing. He claimed that it was his understanding that he "would close the deal with Vivian Arnold Realty," despite his acknowledgement that he had read the deposit and receipt agreement, understood its terms, and was not at any time advised by Vivian Arnold or any member of her office that he was to close the sale through the broker. In short, Mr. McCormick did not present the required $6,000 to either Vivian Arnold Realty or to the appointed escrow agent. Within two days after the date set for closing, Mr. McCormick decided that he did not want to purchase the Osborne property, and brought the action below to recover his earnest money deposit of $500.
In summary, the McCormicks allege that they gave notice to Vivian Arnold Realty Company of their ability and readiness to perform their obligation under the deposit and receipt agreement, despite the fact that they did not deliver the required closing funds to either Vivian Arnold Realty or the escrow agent. The Osbornes allege that Vivian Arnold's failure to notify them that the McCormicks were ready to perform was an act of negligence causing them not to be ready to close the sale by submitting their deed to escrow, notwithstanding Vivian Arnold's testimony at trial that on and before the date set for closing she had no knowledge that the McCormicks had obtained the funds required for closing. At trial her attorney stated:
"... As broker it's our position that neither party to this transaction lived up to the obligations of the deposit and receipt agreement."
I
DID THE TRIAL COURT ERR IN DECLARING THE DEPOSIT AND RECEIPT AGREEMENT TO BE VOID AND IN ORDERING THE EARNEST MONEY REFUNDED TO APPELLEES McCORMICK?
The subject deposit and receipt agreement constituted a valid and binding bilateral contract containing mutual promises *293 on both sides, subject to a financing condition which was met by the potential buyers. Both parties were competent to contract, did so freely at arms length, acknowledged reading the agreement, and where therefore, bound by its terms. Apolito v. Johnson, 3 Ariz. App. 232, 413 P.2d 291, rehearing denied, 3 Ariz. App. 358, 414 P.2d 442 (1966).
The agreement clearly called for the parties to deposit in escrow the respective funds and instruments necessary for closing, and it is equally clear that both buyers and sellers breached these respective duties. It is not a satisfactory excuse on the part of McCormick that he "felt" he was to deal with Vivian Arnold, especially considering that he did not deliver the closing funds to her. Appellees Osborne themselves have no quarrel with the trial court's order and admit that both "McCormick and Osborne let the closing date pass by without tendering their required performances." Appellees Osborne also "unhappily admit that the Trial Court Judgment denying Osborne's request for specific performance, and decreeing return of McCormick's earnest money is most supportable, and should be affirmed."
On appeal we must consider the evidence and possible inferences therefrom in a manner most favorable to upholding the judgment of the trial court. Dietel v. Day, 16 Ariz. App. 206, 492 P.2d 455 (1972). The court below had the uncontradicted facts and the witnesses before it and made a ruling voiding the contract and restoring the parties to their respective positions prior to contracting. Since an appellate court will not overturn the trial court's judgment if there is any reasonable evidence to support it, Jerger v. Rubin, 106 Ariz. 114, 471 P.2d 726 (1970), and finding such evidence, we affirm the order below voiding the deposit and receipt agreement and ordering the earnest money returned to appellees McCormick. Since the listing broker was entitled to one-half the earnest money only in the event of a forfeiture, the broker's asserted claim of $250 fails.
II
DID THE TRIAL COURT ERR IN FINDING ACTIONABLE NEGLIGENCE ON THE PART OF VIVIAN ARNOLD AND VIVIAN ARNOLD REALTY COMPANY AGAINST HOMER OSBORNE?
Appellees Osborne, for their cross-claim against appellants, alleged as follows:
"... That the plaintiffs, McCormick, as intended buyers, ... notified the defendants Carolyn Watchman, Vivian Arnold Realty Company, and/or Vivian Arnold, individually, or one or more of them, that plaintiffs-buyers, were ready, willing and able to perform, and to close the intended transaction, but that defendants, ... either willfully or negligently failed to advise defendants Osborne thereof, with the result that defendants Osborne could not, and did not know of the readiness of the purchasers to perform and could not and did not then proceed to closing, all to the damage of the defendants Osborne."
Vivian Arnold's testimony at trial was that until November 18, 1969, four days after the appointed date set for closing, when she received a telephone call from Mrs. McCormick regarding a return of the earnest money, she had no knowledge that the McCormicks had been ready to close the sale on the Osborne lot. Her position is that at all times her actions were directed towards "just trying to get the two, get Mr. Osborne to sell and the McCormicks to buy"; that her actions did not constitute negligence; and that appellees Osborne have failed to prove any injury or damages.
The duties of a real estate broker as agent for a seller are well established. A real estate agent owes a duty of utmost good faith and loyalty to the principal, and one employed to sell property has the specific duty of exercising reasonable due care and diligence to effect a sale to the best advantage of the principal that is, on *294 the best terms and at the best price possible. Haymes v. Rogers, 70 Ariz. 257, 219 P.2d 339 (1950); 12 Am.Jur.2d Brokers § 96 (1964). He is also under a duty to disclose to his client information he possesses pertaining to the transaction in question. Jennings v. Lee, 105 Ariz. 167, 461 P.2d 161 (1969).
The primary question, therefore, is whether appellants either failed to perform the above described duties or did so negligently to the detriment of appellees Osborne.
The necessary elements of actionable negligence, succinctly stated, are a duty, breach of duty, and injury resulting from the breach. In the absence of any one of these elements, no cause of action for negligence will lie. 57 Am.Jur.2d Negligence § 32 (1931). See, Berne v. Greyhound Parks of Arizona, Inc., 104 Ariz. 38, 448 P.2d 388 (1968).
The record shows no evidence of two necessary elements: A breach of Arnold's duty, and damage to appellees Osborne. On the contrary, Osborne stated at trial that he had received a copy of the deposit and receipt agreement and was aware of his obligations under the agreement, to wit, that he was to submit a deed to escrow prior to closing.
Concerning the element of damage, the trial judge made the following statements:
"And the only thing indicating there might have been some kind of damages in the pleadings, but as far as I know, so far as my recollection serves me, there was no testimony by Osborne or any witness the Court has heard indicating or putting a value on the damage he suffered, or that he even suffered damage.
I don't think there was even a statement that he was damages [sic]." (Emphasis added.)
The general rule of appellate review as to considering evidence in a light most favorable to sustaining the judgment, Dietel v. Day, supra, is subject to the exception that we must also rule as to whether as a matter of law there is any evidence to support the conclusion reached by the trier of fact. City of Phoenix v. Fine, 4 Ariz. App. 303, 420 P.2d 26 (1966).
We find no evidence in the record showing any loss suffered by the Osbornes as a result of the broker's actions. Since damages are an element of a cause of action for negligence, nominal damages cannot be awarded where there is a failure to prove those damages. 22 Am.Jur.2d Damages § 8 (1965). We find that Arnold's actions were at all times directed to effecting, and not hindering, a sale of the Osborne property. Therefore, that part of the judgment granting appellees Osborne $500 for damages is reversed and remanded for disposition consistent with this opinion.
HATHAWAY, C.J., and KRUCKER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354029/ | 462 S.E.2d 467 (1995)
218 Ga. App. 591
HOPKINS
v.
LIFE INSURANCE COMPANY OF GEORGIA.
No. A95A1032.
Court of Appeals of Georgia.
September 26, 1995.
*468 Steve Bennett, Rome, for appellant.
Gorby & Reeves, Martha D. Turner, Michael E. Fisher, Atlanta, for appellee.
BEASLEY, Chief Judge.
Hopkins, the beneficiary of a $150,000 life insurance policy issued to her husband, sued Life Insurance Company of Georgia because of its refusal to pay the proceeds of the policy following his death. She appeals from the grant of summary judgment, which was ordered on the ground that material misrepresentations made by Mr. Hopkins in the insurance application precluded a recovery.
In the application, Life of Georgia asked Mr. Hopkins questions such as whether he had had any symptoms of any disease or impairment, any medical or hospital treatment or other checkup or consultation, and any known indication of any nervous or mental disorder. He responded in the negative, failing to disclose the fact that he had undergone a neuropsychiatric evaluation at a Veterans Administration Medical Center (VAMC) approximately 16 months earlier.
In the psychiatrist's report of the evaluation, he stated that Mr. Hopkins "had a mournful expression and a voice of similar quality. `I've got bad nerves,' he replied when questioned. `I wake at night, and I jerk. I just can't stand any frustration. I strike out. I get angry ... I just have trouble with my feelings. I talked to the lady in Cedartown about my condition. My wife has been urging me to talk to somebody about myself ...,' he continued. `I don't know of any family history of any nervous condition like mine ... Well, the last few years I just haven't been right. Mentally I haven't been right. I don't care about anything. I don't want to do anything. I cry a lot. I just get upset. I've had the problems really for about a year or more ...' `I just got bad nerves. I get stressed out. I need some help....'" The psychiatrist stated that Mr. Hopkins was "obviously depressed" and gave him a diagnosis of "Depressive Reaction."
The underlying basis for summary judgment was that the underwriting manual utilized by the insurer, but not compiled by it, classifies a Depressive Reaction as an "Affective Disorder" and requires a higher premium or declination where, as here, the duration of such an impairment is two years or less. Life of Georgia's underwriting experts testified by affidavit that there is no discretion to place such a diagnosis in a different classification and that the company would not have issued the subject policy if the misrepresentations and contents of the VAMC records had been known.
In opposition, Mrs. Hopkins submitted the affidavit of another insurance underwriting expert. He testified that he would not have classified Mr. Hopkins' Depressive Reaction diagnosis as an Affective Disorder and gave various reasons: Mr. Hopkins applied for a smoker policy, and Life of Georgia issued a policy to him based on standard smoker rates; the VA psychiatrist did not prescribe any medication for Mr. Hopkins or recommend *469 that he undergo hospitalization or treatment; Mr. Hopkins was not having family problems and had not taken time off from work.
Mrs. Hopkins' expert testified that for these reasons, he would have classified Mr. Hopkins' Depressive Reaction as an Anxiety Disorder without significant depression present, under the underwriting manual used by the insurer. This disorder is less severe than an Affective Disorder and does not require either a higher premium or declination. The expert opined that if Mr. Hopkins' diagnosis had been so classified, Life of Georgia would have issued a policy as applied for, i.e., based on standard smoker rates.
In contending that the trial court erred in granting the defendant's motion for summary judgment, Mrs. Hopkins also points out that the cause of Mr. Hopkins' death, approximately four months after he completed the insurance application, was "coronary atherosclerosis with acute occlusion of circumflex coronary artery." He had informed Life of Georgia, in the application, that he was a smoker, that he had had a chest x-ray at the VAMC (at about the same time as the neuropsychiatric evaluation), and that he had a family history of heart attacks and cancer. The psychiatrist stated in his report that "sufficient material does not surface to support PTSD [post traumatic stress disorder]," which the underwriting manual classifies as an Anxiety Disorder.
Nonetheless, under the manual, the type of psychiatric impairment must be determined from the diagnosis of the attending physician if such a diagnosis is given. The psychiatrist diagnosed Depressive Reaction. The manual classifies this as an Affective Disorder. According to the manual, which indisputably governs, the diagnosis actually given cannot be changed to a different albeit less severe diagnosis, either because the patient's symptoms and characteristics could support a less severe diagnosis or because the psychiatrist rejects a less severe diagnosis on the ground that sufficient material to support it had not surfaced.
Mrs. Hopkins' expert acknowledged that Mr. Hopkins' responses to various questions in the insurance application constituted misrepresentations. Compare Prudential Ins. Co. of America v. Seagraves, 117 Ga.App. 480, 481(2), 160 S.E.2d 912 (1968). Contrary to other testimony by this expert, the guidelines in the underwriting manual would have required the insurer to either charge Mr. Hopkins a higher premium or decline to issue a policy if it had known of his diagnosis. Therefore, the misrepresentations were material as a matter of law under OCGA § 33-24-7(b)(2) and (3). See Davis v. John Hancock Mut. Life Ins. Co., 202 Ga.App. 3, 5, 413 S.E.2d 224 (1991); compare United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 248 S.E.2d 635 (1978); Ga. Intl. Life Ins. Co. v. Bear's Den, 162 Ga.App. 833, 837(3), 292 S.E.2d 502 (1982) (misrepresentation not material under prudent insurer standard). It is immaterial whether the applicant acted in good faith in completing the application. Davis, supra. It is likewise immaterial that he ultimately died from an unrelated cause concerning which there was no misrepresentation. See Mut. Benefit Health, etc., Assn. v. Marsh, 60 Ga.App. 431(2), 4 S.E.2d 84 (1939). Summary judgment was authorized.
Judgment affirmed.
POPE, P.J., and RUFFIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354042/ | 506 P.2d 99 (1973)
95 Idaho 202
STATE of Idaho, Plaintiff-Appellant,
v.
Jeff O'MEALEY, Defendant-Respondent.
No. 11097.
Supreme Court of Idaho.
February 9, 1973.
W. Anthony Park, Atty. Gen., J. Dennis (J.D.) Williams, Deputy Atty. Gen., Boise, Gary M. Haman, Pros. Atty., Coeur d'Alene, for plaintiff-appellant.
Bliss O. Bignall, Coeur d'Alene, for defendant-respondent.
SHEPARD, Justice.
This is an appeal by the State from an order of the district court granting a motion to dismiss a criminal complaint. The court held that the defendant was wrongfully held to answer in the district court since no evidence was presented upon which the magistrate could have found *100 probable cause to believe the defendant committed the offense charged. The crime charged was unlawful possession of a controlled substance with the intent to deliver. The sole issue for determination herein is whether the intent to deliver a controlled substance can be inferred and presumed solely from the quantity and variety of substances found upon the defendant's person. We affirm the action of the district court.
On July 4, 1971 a large "Rock Festival" under the guise of a religious assemblage was held at Farragut State Park. Undercover narcotic investigations at the park were conducted. During the time that the defendant was at the Park one of his companions sold an undercover agent what was represented by the seller to be a controlled substance. The substance involved in that sale turned out to be not a controlled substance, but rather common cocoa. Following the sale, the driver of the car, the Defendant O'Mealey, and two other companions left the park in an automobile. Officers followed the car for approximately six miles, then stopped it and arrested the occupants. Defendant was charged with the unlawful possession of a controlled substance with the intent to deliver. I.C. § 37-2732.
On July 15, 1971, the defendant O'Mealey and two companions appeared at a joint preliminary hearing before a magistrate in Coeur d'Alene. The evidence adduced at the preliminary hearing indicated that there had been found on the defendant's person, or in clothing belonging to him, the following controlled substances:
Six tablets of LSD
Thirty-eight tabs of amphetamine sulfate
0.061 grams of cocaine hydrochloride
63.23 grams (approximately 2-1/4 ounces) of marijuana
At the close of the preliminary hearing the defendant moved to dismiss the complaint on the ground that the State had failed to present any evidence of his intent to deliver those controlled substances. The magistrate denied that motion on the basis that even though the State's case was "very weak" the quantities of the controlled substances, coupled with the circumstances of the defendant's arrest constituted probable cause to bind the defendant over for trial. I.C. § 19-804, § 19-815.
As provided and authorized in I.C. § 19-815A, defendant O'Mealey then renewed his motion to dismiss before the district court. The district court reviewed the evidence and granted the motion for dismissal. The district court stated:
"[C]oncerning the defendant, O'Mealey, the evidence is sufficient to show that he possessed various types of a controlled substance, including LSD, amphetamine sulfate, cocaine hydrochloride and marijuana. However, the only contact with O'Mealey by the State, or anyone who testified, was after the Olson automobile had been stopped. There is no testimony in the record, in any regard, of the actual constructive or attempted transfer of a controlled substance from O'Mealey to any other person, no evidence of intent to do so.
"Pursuant to Idaho Code 19-815A, it is the Court's conclusion that the Magistrate held the defendant, O'Mealey to answer without reasonable or probable cause to believe the defendant had committed the crime of `possession of a controlled substance with intent to deliver,' and, accordingly, the Information filed herein is dismissed." [emphasis added]
The State seeks to appeal the order of the district court dismissing the action and relies on I.C. § 19-2804 as authority for the appeal. Defendant makes no objection to the State's appeal and on oral argument defense counsel expressly waived any objection.
We note initially that as found by the district court there is no evidence in the record of any actual, constructive or attempted transfer of a controlled substance from O'Mealey to any other person. The State correctly points out that "the intent *101 or intention is manifested by the circumstances connected with the offense * * *" I.C. § 18-115. The State argues that the following facts are relevant in this regard:
1. The defendant's presence at the State Park during a rock festival with another person who sold a substance which was represented to be a controlled substance but which in actuality was common cocoa.
2. The defendant's presence in an automobile with other persons who were also charged with possession of controlled substances with the intent to deliver.
3. The defendant's possession of a variety and quantity of controlled substances set out hereinabove.
We find no support either in logic or law for the assertion that the defendant's presence at the time of a sale of cocoa has any bearing on his "intent" to deliver controlled substances. We likewise find no support for the assertion that the defendant's presence in a car with companions who were charged with possession of controlled substances with intent to deliver has any relevance to defendant's "intent."
The State's appeal herein stands solely then upon the argument that the variety and quantities of substances found on the person of the defendant in and of themselves, presents sufficient evidence to satisfy a reasonable man that the defendant probably intended to deliver these substances.
The purpose of a preliminary examination before a magistrate is to determine whether a crime has been committed and whether there is probable cause to believe that the defendant committed it. I.C. §§ 19-804, 19-815. The standard used both in magistrates' court and in the district court to evaluate such evidence as is presented at preliminary hearing is different than the standard used to determine whether evidence is sufficient to sustain a conviction after trial. Carey v. State, 91 Idaho 706, 709, 429 P.2d 836 (1967). This Court has stated that the standard to be used in evaluating the sufficiency of evidence presented at a preliminary hearing is:
"The state is not required to produce all of its evidence at a preliminary examination; if it produces enough to satisfy the committing magistrate that a crime has been committed and that there is reasonable or probable cause to believe the accused committed it, it is the duty of the magistrate to hold the accused for trial. The words `reasonable or probable cause' mean such evidence as would lead a reasonable person to believe the accused party has probably or likely committed the offense charged." (citations omitted; emphasis supplied)
Martinez v. State, 90 Idaho 229, 232, 409 P.2d 426, 427 (1965), cited with approval in Carey v. State, supra.
The decision of a magistrate that there exists probable cause to hold a defendant to answer before the district court should be overturned only on a clear showing that the committing magistrate abused his discretion. Carey v. State, supra; In re Levy, 8 Idaho 53, 66 P. 806 (1901).
In Redden v. State, 281 A.2d 490 (Del. 1971) the police searched the defendant's apartment pursuant to a warrant. There they found three envelopes containing about 12 oz. of marijuana, 29 small sealed packets containing marijuana, 84 empty packets, a manila envelope containing marijuana and 2 marijuana cigarettes. The defendant therein was convicted of possessing dangerous drugs with the intent to sell. The defendant appealed on the ground that the State had not presented evidence of his intent to sell. The court stated:
"It was, of course, incumbent upon the State to prove the element of intent to sell, as well as all other elements of the offense, by competent evidence sufficient to justify submission of the issue to the jury. There was no direct evidence of the element of intent. The only evidence related to this facet of the case was circumstantial: the quantity of the drug found in the defendant's possession. *102 There was no evidence of a sale or an attempted sale; or of a dollar value; or of the quantity of marijuana an average consumer may be reasonably expected to have in his home; or of the quantity this defendant in particular may reasonably have had in his home for personal consumption. Moreover, there is no statutory standard or guideline from which an inference or presumption of intent to sell may arise. A jury may not be permitted to speculate as to these determinative factors." (Emphasis supplied) 281 A.2d at p. 491.
A somewhat contrary case upon which the State relies heavily is State v. Layman, 22 Idaho 387, 125 P. 1042 (1912). In Layman the defendant was charged with the crime of maintaining a common nuisance where intoxicating liquors were sold. At the preliminary hearing the State presented evidence that 125 half pint bottles of whiskey were found in defendant's home. On appeal the court found that this constituted sufficient evidence to bind the defendant over for trial. The court took judicial notice that two or three half pint bottles of whiskey would have been sufficient to satisfy the defendant's own needs. The court apparently was persuaded that the liquor was in containers eminently suitable for resale.
To the extent that the court in Layman took judicial notice that the liquor appeared to be packaged for resale, we might reach a result contrary to Delaware on the facts of Redden.
In order to satisfy the reasonable man test set forth above either some evidence must have been adduced at the preliminary hearing to support the inference that defendant intended to deliver the substances, or this court must be able to take judicial notice of what constitutes reasonable quantities of drugs for personal uses. No evidence of any kind was presented at the preliminary hearing concerning the quantities the drug user might be expected to have for his own personal use. Unlike the court in Layman, this court is not knowledgeable enough to be able to take judicial notice of what constitutes reasonable quantities of drugs for personal use.
The authorities that we have discovered provide no information as to any dosage of LSD which can be utilized by any one person. Too many ambiguous factors come into play, such as the quality of the drug, and the illegality of its manufacture. The minimum amount of cocaine hydrochloride involved herein is insufficient for us to conclude that said amount would usually be held for distribution to other persons. Likewise we are unable to indulge in any conclusion regarding the amphetamine sulfate since it is not described in pharmacological terms to enable us to determine dosage.
We turn now to the amount of marijuana discovered on the defendant's person or clothing, and whether such amount was more than that necessary for his personal use. Marihuana, A Signal of Misunderstanding; First Report of the National Commission on Marihuana and Drug Abuse (1972), Appendix I, pp. 28-30, appears to indicate that the amount found in defendant's possession in this case could be reasonably expected to furnish approximately 126, 0.5 gram marijuana cigarettes. The Commission's report likewise would appear to indicate that a heavy marijuana user could utilize 70 marijuana cigarettes per week. We emphasize that the authorities furnish little if any conclusive knowledge one way or the other on the amounts of marijuana suitable for personal consumption. Hence, it is crucial in a matter of this type that the State in its evidence furnish the lower court and this court with some purported evidence sufficient to reach a conclusion as to what amount of drugs may create a presumption of intent to deliver.
In the absence of any statutory presumption, without any other evidence to corroborate defendant's intent to deliver, and without sufficient knowledge upon which to base judicial notice, we have no alternative but to find that the magistrate in this *103 case abused his discretion in binding the defendant over for trial.
The district court's order dismissing the complaint against defendant is affirmed.
DONALDSON, C.J., and McQUADE, McFADDEN and BAKES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354043/ | 462 S.E.2d 276 (1995)
Frank and Raejean BEATTIE, Appellants,
v.
AIKEN COUNTY DEPARTMENT OF SOCIAL SERVICES and the South Carolina Department of Social Services, Respondents.
No. 24321.
Supreme Court of South Carolina.
Heard June 15, 1995.
Decided September 18, 1995.
*277 Jack B. Swerling, Columbia, and F. Patrick Hubbard, Columbia, for appellants.
Susan Anderson, Columbia, for respondents.
WALLER, Justice:
On appeal is an order denying Appellants' motion to review an Aiken County Department of Social Services (DSS) case file and an internal South Carolina Department of Social Services (SCDSS) investigative report. We affirm.
FACTS
On October 25, 1993, Appellants were notified that a complaint had been lodged against them for abuse and neglect of their two young daughters. Appellants believed that the complaint was fabricated by the acting director of the Aiken County DSS, Cassie Wilson, in retaliation for their disclosure of improper acts on the part of Wilson in an unrelated matter. They wrote to the Attorney General concerning these suspicions and were informed that SCDSS, Division of Investigations, would inquire into the matter at the direction of its General Counsel.
Subsequently, an investigation by DSS ensued into the complaint of abuse and neglect. It was determined to be unfounded. Appellants sought access to the Aiken County DSS case file, including the name of the person who reported the complaint, as well as the SCDSS investigative report concerning Cassie *278 Wilson. They were informed that, since their case was unfounded, they were not entitled to review the case file. Further, the investigative case file on Wilson was privileged and not subject to disclosure.
Appellants filed an action seeking the disclosure and preservation of the DSS case file and the SCDSS investigation of Wilson. The court held that these files are not subject to disclosure. DSS was ordered to preserve the case files pending this appeal.
ISSUES
1. Are Appellants entitled to review the DSS case file concerning the investigation of the allegations of abuse and neglect?
2. Are Appellants entitled to review the internal SCDSS report concerning its investigation of Wilson?
DISCUSSION
1. DSS Case File
Appellants contend that they have a right to review the DSS case file even though the allegations of abuse and neglect were unfounded. We disagree.
S.C.Code Ann. § 20-7-650(F) (Supp.1994) provides:
The names, addresses, and all other identifying characteristics of persons named in all unfounded reports maintained in agency files may be used only for auditing and statistical purposes. All identifying information contained in unfounded reports must be destroyed immediately after use of the information for auditing and statistical purposes, and in no case later than one year from the date that the last report has been determined to be unfounded; provided, however, that all information in any such report which is unnecessary for auditing and statistical purposes must be destroyed immediately upon a determination that such report is unfounded and the remaining information must be kept strictly confidential except for auditing and statistical purposes. Notwithstanding Section 20-7-690[1] or any other provision of law, no information contained in unfounded reports may be disclosed under any circumstances. (Emphasis added).
Appellants contend that, in their case, there was no "report" from a "reporter"; rather, there was merely "a false complaint by a DSS staff member." Therefore, they argue that § 20-7-650(F) does not apply to them and they should be given unrestricted access to the case file. They also argue that § 20-7-650(F) is limited to the actual report of DSS; therefore, they are entitled to review any other material and records concerning their case.
In interpreting a statute, this Court's primary purpose is to ascertain the intent of the legislature. Browning v. Hartvigsen, 307 S.C. 122, 414 S.E.2d 115 (1992). An entire code section should be read as a whole so that phraseology of an isolated section is not controlling. City of Columbia v. Niagara Fire Insurance Company, 249 S.C. 388, 154 S.E.2d 674 (1967). "A statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers." Browning, 307 S.C. at 125, 414 S.E.2d at 117.
The clear language of § 20-7-650 prohibits the disclosure of the DSS case file to Appellants or to anyone else. "Report", as used in the section, is not limited to the initial complaint of abuse; rather it refers to all information appertaining to the DSS investigation of alleged abuse or neglect. Any other interpretation would render meaningless the mandate that all reports be destroyed if a case is determined to be unfounded.
Moreover, it is patently clear that the identity of the reporter cannot be disclosed under any circumstance. This is necessary to encourage the reporting of suspected abuse without fear of retaliation. We reject Appellants' contention that the definition of reporter does not include those people employed by DSS.
*279 Accordingly, under § 20-7-650, Appellants are precluded from examining the DSS case file concerning the unfounded allegations of abuse lodged against them.
2. SCDSS Internal Investigation
The trial court held that any material and information concerning the internal investigation of Wilson conducted by SCDSS was not subject to disclosure under the exemptions of the South Carolina Freedom of Information Act (FOIA) relating to information of a personal nature and correspondence or work product of legal counsel. Appellants contend that the court erred in failing to review the requested file, determine which material in the file is exempt and non-exempt, and requiring disclosure of the nonexempt material.
FOIA provides the right to inspect or copy any public record of a public body. S.C.Code Ann. § 30-4-30(a) (Supp.1994). However, the FOIA enumerates certain exemptions, including information of a personal nature and work product of legal counsel. S.C.Code Ann. § 30-4-40(a)(2) and (a)(7) (1991 and Supp.1994). Moreover, those records which are required by law to be closed to the public are not subject to the FOIA. S.C.Code Ann. § 30-4-20(c) (1991); S.C.Code Ann. § 30-4-40(4) (1991). Notwithstanding, these exemptions for the FOIA do not provide a blanket prohibition of disclosure of the entire record containing exempt material. Rather, the exempt and nonexempt material shall be separated and the nonexempt material disclosed. See Newberry Publ. v. Newberry Co. Comm'n A.D.A., 308 S.C. 352, 417 S.E.2d 870 (1992).
Here, the record fails to show that the trial court was asked to review the SCDSS investigatory file and separate the exempt and nonexempt material. Accordingly, we must affirm the trial court on this issue. Conran v. Joe Jenkins Realty, Inc., 263 S.C. 332, 210 S.E.2d 309 (1974) (Appellant bears burden of providing sufficient record to support his argument). However, Appellants are not precluded from reappearing before the trial court and requesting that it conduct a review in accordance with Newberry.
AFFIRMED.
FINNEY, C.J., and MOORE and BURNETT, JJ., and GEORGE T. GREGORY, Jr., Acting Associate Justice, concur.
NOTES
[1] S.C.Code Ann. § 20-7-690 (Supp.1994) provides that the information contained in reports of child abuse and neglect is available to "any person who is the subject of a report or that person's attorney", except for the name, address, occupation, and other identifying characteristics of the reporter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2578534/ | 64 F. Supp. 2d 456 (1999)
Jose L. CANELA, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.
No. CIV. A. 99-3785.
United States District Court, E.D. Pennsylvania.
September 8, 1999.
Jose Canela, Perth Amboy, NJ, pro se.
Stephen J. Britt, U.S. Atty.'s Office, Philadelphia, PA, for U.S. Dept. of Justice.
MEMORANDUM & ORDER
KATZ, District Judge.
Before the court is a pro se "complaint" from Jose Canela, requesting that the court stop his scheduled deportation. The court construes this as a habeas corpus petition pursuant to 28 U.S.C. § 2241, as does the government's response.
Background
Mr. Canela's petition to the court is sparse on detail, but his submission, the government's response, and the opinion from the Board of Immigration Appeals (BIA) reveal the relevant facts of this case. Mr. Canela is a citizen of the Dominican Republic who has spent much of his life in the United States. The court infers from the letter submitted by the petitioner that he has two children and a wife who may be American citizens, and he has recently been given a permanent job at Cosmair, Inc., with advancement opportunities. See Petitioner's Compl.
Mr. Canela entered the United States as a lawful permanent resident on October 16, 1986. On September 2, 1994, Mr. Canela was convicted of possession and distribution of cocaine. On June 27, 1995, Mr. Canela was issued an Order to Show Cause (OSC) asserting that he was subject to deportation for being an aggravated felon and for his conviction of a controlled substance offense pursuant to 8 U.S.C. §§ 1251(a)(2)(A)(iii), 1251(a)(2)(B)(i). See Gov't Ex. 1. The OSC was not filed with the immigration judge (IJ) until December 18, 1996. On June 3, 1997, the IJ ordered Mr. Canela deported, see Gov't Ex. 1, and, *457 on June 30, 1999, the BIA affirmed that decision in a written opinion. Both the IJ and the BIA refused to consider Mr. Canela's application for discretionary relief because they believed that he was precluded from raising the defense by the enactment of a superseding law. See In re Canela, Unpublished Disposition at 2 (BIA June 30, 1999) (Gov't Ex. 1).
Discussion
The issue before the court is the availability of discretionary relief pursuant to 8 U.S.C. § 1182, known as section 212(c) relief. This statute previously permitted aliens who met certain qualifications, including seven years of residency in the United States, to apply for a waiver of deportation.[1] However, as thoroughly described by the Third Circuit, section 440(d) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) amended the Immigration and Nationality Act to make this discretionary relief unavailable for most aliens who have been convicted of drug offenses. See Sandoval v. Reno, 166 F.3d 225, 228 (1999) (describing statutory changes). In Sandoval, the Third Circuit held that 212(c) relief was still available to aliens whose cases were "pending" on the date of the enactment of section 440(d), April 24, 1996. See id. at 229, 242. Thus, as the government agrees, the only matter before the court is whether Mr. Canela's case was pending on or before April 24, 1996. If it was, the IJ and the BIA erred in refusing to consider the merits of his application; if it was not, the IJ and the BIA acted properly.[2]
The response submitted by the Department of Justice argues that Mr. Canela's case was not pending prior to the date of AEDPA's enactment based upon regulations stating, "Every removal proceeding conducted under section 240 of the Act to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the Immigration Court." 8 C.F.R. § 239.1(a). As the notice was not filed with the IJ until December 1996, well after the date of AEDPA's enactment, the respondent argues that Mr. Canela is barred from requesting section 212(c) relief.
There has been, to this court's knowledge, no case law directly interpreting this regulation, although the respondent has brought to this court's attention various decisions that have stated without analysis that a case commences with the filing of an OSC before an IJ. See, e.g., Howell v. INS, 72 F.3d 288, 290 (2d Cir.1995) (reciting former regulation without analysis); Dokic v. INS, 899 F.2d 530, 531-32 (6th Cir.1990) (same).[3] The court believes that these comments have little relevance to the present case, as none of them addressed the question of whether an alien who was issued an OSC prior to the date of AEDPA's enactment should be barred from applying for discretionary relief because the INS failed to file that same OSC with the immigration court until after AEDPA's enactment.[4]
*458 The date at which the regulations consider a case to have commenced is essentially random. See Wallace v. Reno, 24 F. Supp. 2d 104, 113 (D.Mass.1998).[5] Had the INS completed the administrative task of filing the OSC with the IJ promptly, Mr. Canela may well have been eligible for 212(c) relief even under the agency interpretation. Consequently, the court accepts the reasoning of another district court faced with a similar issue:
I am not persuaded by the defendants' argument that [petitioner] was not in deportation proceedings until the order to show cause was filed in immigration court. As of the time the order to show cause was issued, the INS had the power to arrest him; commencement of the case in immigration court was subject only to the vagaries of administrative scheduling. From a due process standpoint, [petitioner] was subject to the deportation power of the INS as of the time the show cause order issued; fairness requires that the INS, having placed [petitioner] under its authority, should also live with the results of that decision.
Mercado-Amador v. Reno, 47 F. Supp. 2d 1219, 1224 (D.Or.1999). The court finds that Mr. Canela's case was pending as of the date he received the OSC, which was prior to AEDPA's enactment. Consequently, his 212(c) claim should be considered on the merits.
The government argues that Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), requires this court to apply the agency's regulation. However, the court does not believe that Chevron requires the court to penalize the petitioner for the INS's failure to act in an efficient manner. Under Chevron, the court must defer to agency regulations filling in gaps in a statutory framework when they represent a reasonable policy choice given Congress' failure to speak on an issue. See id. at 844, 104 S. Ct. 2778. However, as the Third Circuit emphasized in Sandoval, weight is given to such an interpretation when Congress has delegated rule-making power to an agency "and has thereby sought to rely on agency expertise in the formulation of substantive policy." Sandoval, 166 F.3d at 239. "An issue concerning a statute's effective date is not one that implicates agency expertise in a meaningful way, and does not, therefore, appear to require Chevron deference." Id.; see also Chevron, 467 U.S. at 844, 104 S. Ct. 2778 (stating that deference to agency interpretation assumes that agency has special competence in an area). Similarly, the court is not required here to accept the administrative definition of a "commencement" of a proceeding when such weighty substantive results flow from an essentially clerical regulation that was not promulgated to address the question of the retroactive application of a statute. In short, the court finds that this administrative regulation is simply inapplicable to the present situation and that, in this context, a case should be considered constructively pending when the alien himself is subject to the jurisdiction of the INS as described in the OSC.
Conclusion
While the court cannot and does not rule on the substance of Mr. Canela's 212(c) application, he must be permitted to raise this argument and have it considered on its merits. The only reason that petitioner's claim is arguably time-barred is because the INS failed to fulfill its administrative duties in a timely fashion. Mr. Canela should not be penalized for the INS's delay.
An appropriate Order follows.
ORDER
AND NOW, this day of September, 1999, upon consideration of the Plaintiff's Petition for Relief from Deportation, construed *459 as a Petition for Habeas Corpus, and the response thereto, it is hereby ORDERED that the Plaintiff's Petition is GRANTED. Respondent is directed to reopen Petitioner's case and to consider and rule on the merits of Petitioner's claim for discretionary relief. The court's order of August 6, 1999, staying all proceedings, including detention, shall remain in effect, and respondent is enjoined from deporting petitioner, if at all, until after the administrative and judicial appellate process with respect to respondent's ruling is exhausted.
NOTES
[1] While the respondent does not discuss Mr. Canela's eligibility for 212(c) relief, the court believes that Mr. Canela has at least a colorable claim based on the facts submitted with his "complaint." See Sandoval v. Reno, Civ. A. No. 97-7298, 1997 WL 839465, at *2-3 (E.D.Pa. Dec. 30, 1997) (describing requirements for 212(c) relief, including seven years residency and unusual hardship resulting from deportation).
[2] The court has jurisdiction to hear this habeas claim. See Sandoval, 166 F.3d at 238; see also Desousa v. Reno, 190 F.3d 175, 181-82 (3d Cir.1999) (holding that the Supreme Court's decision in Reno v. American-Arab Committee, U.S., 525 U.S. 471, 119 S. Ct. 936, 142 L. Ed. 2d 940 (1999), did not remove jurisdiction).
[3] While the respondent refers to Ceballos de Leon v. Reno, 58 F. Supp. 2d 463, 470 (D.N.J. 1999), the alien in that case did not receive an OSC until August 12, 1996, well after the date on which AEDPA was enacted.
[4] In so holding, the court does not find that the AEDPA is impermissibly retroactive simply because it is applied to conduct that occurred prior to its enactment. This holding is foreclosed by the Third Circuit's recent ruling in Desousa v. Reno, 190 F.3d 175, 185-87 (3d Cir.1999).
[5] The court, again, believes much of Wallace's holding with respect to retroactivity is foreclosed in this circuit by Desousa. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354225/ | 226 S.E.2d 652 (1976)
290 N.C. 383
STATE of North Carolina
v.
Tamarcus SWIFT, alias Poison Ivy.
No. 24.
Supreme Court of North Carolina.
July 14, 1976.
*658 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey and Associate Atty. Henry H. Burgwyn, Raleigh, for the State.
W. Dortch Langston, Jr. and Phillip A. Baddour, Jr., Goldsboro, for defendant-appellant.
COPELAND, Justice.
Counsel for defendant makes a total of 63 assignments of error, based on 333 exceptions. 12 assignments have been abandoned.
(1) Assignment of Error No. 1 contends it was error to deny defendant's motion to quash the bills of indictment because defendant's name is set out in both bills as "Tamarcus Swift (Alias Poison Ivy)."
The word "alias" is defined in Webster's Third New International Dictionary 52, 53 (1971) as "used esp. in legal proceedings to connect the different names of anyone who has gone by or been known by two or more names." The record in this case indicates that defendant was known to his friends and acquaintances as "Poison Ivy."
Quashal of indictments is not favored where they do not affect the merits of the case. State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973); 4 Strong, N.C. Index 2d, Indictment and Warrants, § 7 and cases therein cited; G.S. 15-153. Here defendant contends that he was denied a fair trial because the use of the alias might create in the minds of the jury an implication that he was a criminal. To support this position, defendant cites two federal cases in which there was no reversible error found on account of the use of the aliases involved. Language in these cases stands for the proposition that loading indictments with unnecessary aliases is or may be inherently prejudicial. United States v. Monroe, 164 F.2d 471 (2 Cir. 1947); D'Allessandro v. United States, 90 F.2d 640 (3 Cir. 1937). There was no such loading of the indictments in our case. The indictments included only one alias or nickname. Apparently this was defendant's only alias. At least two witnesses who knew defendant well used this alias when testifying.
Also, we note that the trial court sustained objections as to the use of the alias by the District Attorney. Additionally, in the final instruction to the jury they were told:
"Now, members of the jury, the fact that he stands indicted . . . is no evidence of his guilt and you will not consider it against him. Likewise the fact, ladies and gentlemen, the fact that the bills of indictmentthey were read to youwere read to you in the formin the name of the defendant as Tamarcus Swift, alias Poison Ivy, are not to be considered by you to his detriment in any respect."
This instruction substantially conforms to the instruction approved in United States v. Monroe, supra.
Defendant has failed to show any prejudicial error. There is no merit to this assignment, and it is overruled.
(2) In Assignment of Error No. 12, defendant in a related manner maintains the court erred in overruling defendant's objections *659 and motions to strike relative to his name being referred to by witnesses for the State as "Poison Ivy" and "Poison" for that it prejudiced the jury against him. He contends that referring to him by his nickname prevented him from getting a fair trial.
The record indicates that the District Attorney used the nickname twice when examining witnesses. The court sustained objection each time. It is noted from the record that defendant offered testimony in which the nickname "Poison Ivy" was used and there was no objection or motion to strike. Thus, there was no prejudicial error from the admission of similar testimony by the State. State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); 1 Stansbury's N.C. Evidence, § 30 (Brandis Rev.1973). Frankly, we do not believe it would have been error to refer to defendant by the name by which he was generally known. The fact that his nickname may have been demeaning does not create error per se. Defendant had an opportunity to explain his nickname. In fact, he testified that he got the nickname "Ivey" from his grandmother when he was 4 or 5 years old.
The assignment of error is without merit and overruled.
(3) Assignments 3 and 62 argue that the language of the bill of indictment did not identify the crime charged and was ambiguous and confusing.
The bill of indictment reads as follows:
"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Tamarcus Swift (Alias Poison Ivy) late of the County of Wayne on the 3rd day of June, 1975, with force and arms, at and in said County, feloniously, wilfully, and of his malice aforethought, did kill and murder Thelma Jean Jones, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."
Defendant says this bill of indictment does not give him notice that the State intends to rely on the felony-murder rule as it is spelled out in General Statutes 14-17.
Defendant concedes that our Court has held for many years that a felony-murder may be proven by the State as alleged here under the statutory language of General Statutes 15-144. State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955); State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945); State v. Smith, 223 N.C. 457, 27 S.E.2d 114 (1943); State v. Fogleman, 204 N.C. 401, 168 S.E. 536 (1933).
In addition to the murder indictment, defendant was also charged in another bill of indictment with the willful discharge of a firearm into occupied property in violation of General Statutes 14-34.1. Both bills refer to the deceased, Thelma Jean Jones. Defendant was certainly made aware of the fact that he would be called upon to answer for the murder of Thelma Jean Jones and also for shooting into an occupied dwelling where she was. These two indictments, when read together, informed defendant of the crimes with which he was charged. Our law is clear on the subject, and we adhere to our previous decisions. The assignment of error is without merit and overruled.
(4) Defendant's Assignment of Error No. 4 maintains the court erred in denying his motion for a bill of particulars, which requested the State to determine whether it was going to proceed on felony-murder or murder based on premeditation and deliberation.
The record discloses that this question was considered by the trial court and the District Attorney advised defendant that he would proceed in the case upon the theory of felony-murder and also premeditation and deliberation. A subsequent renewed motion of defendant requesting the State to elect under which theory it would proceed was overruled.
General Statutes 15-143, providing for a bill of particulars, was repealed 1 *660 July 1975, and the present law on the subject is now included in General Statutes 15A-925. Justice Moore, speaking for our Court on this subject in terms still relevant under G.S. 15A-925, said:
"The function of such a bill of particulars is (1) to inform the defense of the specific occurrences intended to be investigated on the trial and (2) to limit the course of the evidence to the particular scope of inquiry." [Citations omitted.]
"The granting or denial of motions for a bill of particulars is within the discretion of the court and is not subject to review except for palpable and gross abuse thereof." [Citations omitted.] State v. McLaughlin, 286 N.C. 597, 603, 213 S.E.2d 238, 242 (1975).
Defendant was obviously aware that the trial was going to proceed on both theories, and there does not appear to be any evidence introduced which was beyond the knowledge of defendant and necessary to enable defendant adequately to prepare or conduct his defense. Certainly, the court did not abuse its discretion in denying the motion for a bill of particulars. State v. McLaughlin, supra; G.S. 15A-925.
We have held that the State is not required to elect prior to the introduction of evidence as to whether it will proceed under the felony-murder rule or on the basis of premeditation and deliberation. State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975).
We adhere to our previous decisions, and the assignment of error is overruled.
(5) Did the court commit error in excusing certain jurors for cause, as contended in assignments of error 6, 7, and 9?
These assignments of error generally relate to questions dealing with capital punishment that were asked jurors during the jury selection process. On 2 July 1976 the Supreme Court of the United States in Woodson v. North Carolina, ___ U.S. ___, 96 S.Ct. 2978, 49 L.Ed.2d ___, in a five-to-four decision invalidated the death penalty provisions of G.S. 14-17 (Cumm.Supp.1975), the statute, under which defendant was convicted and sentenced to death. For this reason, these assignments of error become academic and there can be no prejudicial error. State v. Covington, N.C., 226 S.E.2d 629 (1976), decided this same day. The assignments are overruled.
(6) By Assignment of Error No. 13, defendant argues the court erred in overruling defendant's objections to 58 leading questions asked by the State to its witnesses on direct examination.
It is generally held that leading questions may not be asked on direct examination but the rulings of the trial judge are discretionary. State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974); 1 Stansbury's N.C. Evidence, supra § 31.
Justice Branch speaking for our court in State v. Greene, supra at 492, 493, 206 S.E.2d at 236 said:
"The trial judge in ruling on leading questions is aided by certain guidelines which have evolved over the years to the effect that counsel should be allowed to lead his witness on direct examination when the witness is: (1) hostile or unwilling to testify, (2) has difficulty in understanding the question because of immaturity, age, infirmity or ignorance or where (3) the inquiry is into a subject of delicate nature such as sexual matters, (4) the witness is called to contradict the testimony of prior witnesses, (5) the examiner seeks to aid the witness' recollection or refresh his memory when the witness has exhausted his memory without stating the particular matters required, (6) the questions are asked for securing preliminary or introductory testimony, (7) the examiner directs attention to the subject matter at hand without suggesting answers and (8) the mode of questioning is best calculated to elicit the truth. [Citations omitted.]"
Upon examination of the record it appears that the questions are generally within the guidelines above set forth. The rulings of the court were discretionary, and there does not appear to be any abuse of such discretion. State v. Brunson, supra; *661 State v. Greene, supra. The assignment is overruled.
(7) Under assignments of error 16, 30 and 44, defendant contends the court erred in allowing into evidence over objection the testimony of witnesses Annie Davis, Gwendolyn Sherrod and John Faison.
Generally, the testimony of Annie Davis and John Faison was to the effect that Linda Faye Carroll told defendant that Zeno Jones had beaten her up. It is obvious the testimony was not offered by the State to prove the truth of the matter asserted, but rather to show that these statements were actually made to defendant. No limiting instruction was requested.
The law permits declarations of one person to be admitted into evidence for the purpose of showing that another person has knowledge or notice of the declared facts and to demonstrate his particular state of mind. Such declarations are also admissible as circumstantial evidence of the existence of a particular emotion which would naturally result from hearing the words or otherwise help to explain subsequent conduct. 1 Stansbury's N.C. Evidence, supra § 141.
Certainly, these statements were relevant to show defendant's knowledge or notice of the asserted facts as well as to indicate his intentions and state of mind relative to Zeno Jones. For the same reason, the testimony of Gwendolyn Sherrod that Linda Faye Carroll told defendant where to find the residence of Zeno Jones is proper. The further testimony of Annie Davis that someone in the car told defendant they saw Zeno Jones running out of the house and the testimony of Gwendolyn Sherrod that an unidentified person running toward defendant told him that Zeno Jones was coming out of the house were competent for the reasons above stated.
Even if the testimony is considered inadmissible under the hearsay rule and not within any of the exceptions thereto, these statements were not prejudicial to defendant for the reason that he took the witness stand and admitted virtually every one of the so-called hearsay statements. State v. Greene, supra; State v. Van Landingham, supra; State v. Stepney, supra. The assignments of error are overruled.
(8) Defendant maintains the trial court erred in admitting the testimony of Annie Davis and R. A. Stocks under assignments of error 17, 20, and 29, for that it was not relevant.
". . . [E]vidence is relevant if it has any logical tendency . . . to prove a fact in issue." 1 Stansbury's N.C. Evidence, supra § 77, at 234. It is difficult to formulate an exact rule to determine relevancy and materiality because of the variety of possible fact situations. 1 Stansbury's N.C. Evidence, supra § 78. We have held that in criminal cases every circumstance that is calculated to throw any light upon the alleged crime is admissible. State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965).
In particular, defendant objects to the testimony of the State's witness Annie Davis that Linda Carroll "seemed to be upset because of what happened" and that "he [the defendant] got her to go in the house and go to bed." Under the guidelines of Stansbury this testimony seems relevant and material and tends to show defendant's state of mind, his intentions and mood at the time. The assignment of error is overruled.
Under this same general category, defendant objects to testimony of Detective Stocks of the Goldsboro Police Department, who had been so employed for eleven and one-half years. The weapon involved was identified as a Winchester 30.30 rifle. Detective Stocks, who was familiar with the operation of this type of rifle, testified over objection as to how it functioned. It must be remembered that defendant argues that the rifle discharged as a result of a struggle over control of the weapon and that the shooting was an accident. Certainly, the testimony as to how this type of weapon functioned would be relevant. It tended to show that the rifle could not have been *662 discharged accidentally in the manner contended by defendant. The assignment of error is without merit and overruled.
(9) Next defendant assigns errors 19, 22, 23 and 36 for the reason that photographs were received into evidence that did not illustrate prior testimony of witnesses. Defendant argues that the photographs were used as substantive evidence. Specific objection is made to one of the witnesses placing an "X" on a photograph to locate the position of the defendant. Also, defendant objects to the testimony of State's witness Stocks relative to the amount of blood shown in the photograph. Defendant asserts that the testimony of Dr. Parmelee is substantive in nature when he identified blood on the walls and holes in the walls as shown on the photographs.
Defendant's contention that photographs are admissible only to illustrate prior testimony is without merit. Where a proper foundation has been laid, photographs may be used contemporaneously with the witness's testimony in order to illustrate his testimony and facilitate his explanation. Ordinarily, photographs are competent to be used by a witness to explain or illustrate anything that is competent for him to describe in words. State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969).
An examination of the record reveals that a proper foundation was laid and the photographs were in fact used to explain and illustrate the witnesses' testimony. Additionally, although no instruction was mandated since defendant failed to request one, the trial judge properly instructed the jury that the photographs "are not to be considered by you as substantive evidence" and that they are "admissible solely for the purpose of illustrating the testimony of the witnesses if they tend to do so and admissible for no other purpose." State v. Cox, 289 N.C. 414, 222 S.E.2d 246 (1976); State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed.2d 102 (1976); State v. McKissick, 271 N.C. 500, 157 S.E.2d 112 (1967).
Defendant has failed to show any error, and these assignments of error are without any merit and overruled.
(10) Assignment of Error No. 21 is based on 55 exceptions. Defendant complains about testimony relative to teeth found. The evidence disclosed that the deceased was shot in the face and several teeth were found at the scene. Defendant contends this testimony was offered to arouse sympathy for the State's case and prejudice defendant.
"Relevant evidence will not be excluded simply because it may tend to prejudice the opponent or excite sympathy for the party who offers it." 1 Stansbury's N.C. Evidence, supra § 80, at 242. Of course, if the only effect of the evidence is to excite prejudicial sympathy, then it may be grounds for a new trial. 1 Stansbury's N.C. Evidence, supra § 80.
Three witnesses testified about the teeth and where they were located. Certainly, this constituted circumstantial evidence that tended to show the direction from which the shot was fired, the range of the shot, and the fact that deceased died from a gunshot wound. This testimony corroborated Dr. Parmelee who testified that the deceased was killed with a gunshot wound in the face. It was relevant and thus admissible. This assignment is without merit and overruled.
(11) Assignment of Error 27 maintains the court should have declared a mistrial because of an incident in the courtroom.
It appears a man was arrested in the courtroom during the course of the trial for carrying a loaded weapon. One of the jurors notified the trial judge that her supervisor had mentioned it to her. As a result, the trial judge interrogated each of the jurors as to their recollection about the incident and its effect upon them. Judge Peel made findings of fact, concluded there had been no prejudice, and denied the motion for a mistrial in his discretion. Certainly there is no showing of any prejudice *663 to defendant by the arrest of some man, unrelated to this case, carrying a loaded weapon in the courtroom. Each juror told the trial judge that he or she could return a fair and impartial verdict uninfluenced by the incident. The court further instructed the jurors that they were not to consider the incident in their deliberations and were not to discuss it further.
A motion for a new trial for an incident such as this is addressed to the sound discretion of the trial court and in the absence of abuse of discretion there is no error. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); 7 Strong, N.C. Index 2d, Trial, §§ 5 and 9 (1968). This assignment is without any merit and overruled.
(12) As a result of the previous incident, defendant assigns Error No. 28 for the refusal of the court to sequester the jury. The sequestration of the jury along with the course and conduct of the trial rests in the discretion of the trial court. G.S. 9-17. See also State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); 2 Strong, N.C. Index 2d, Criminal Law, § 98, at 633 (1967) and cases therein cited (sequestration of witnesses is discretionary). The assignment is without merit and is overruled.
(13) Under Assignment of Error No. 33, defendant contends it was error to permit the District Attorney to threaten potential defendant's witnesses Faison and Vick and thus not accord defendant a fair trial.
It came to the attention of the court that Faison and Vick would possibly be called as witnesses for defendant and that the District Attorney might charge them with being accessories after the fact to murder. The trial judge wisely decided that he should advise those potential witnesses and possible defendants of their rights out of the presence of the jury. In the course of it, the District Attorney stated that Vick stayed in the car and he had no intention of indicting him for anything. The intimation was that possibly Faison might be indicted. It was then that Judge Peel fully advised faison of his right to have a lawyer. Faison indicated that he did not wish one and was asked to sign a document to that effect.
The judge did exactly what he should have done under the circumstances. This took place out of the presence of the jury. The witnesses were not threatened, and defendant was not prejudiced. As a matter of fact both witnesses testified advantageously for defendant. This assignment of error is without any merit and overruled.
(14) In assignments 42 and 43, defendant contends the court erred in its findings of fact and conclusions of law as to defendant's waiver of his constitutional rights as outlined by the Miranda decision. He contends that on account of this error the court erred in allowing State's witnesses to testify before the jury to statements made by defendant.
Defendant specifically argues that the trial court's finding of fact number 11 that he "understood what his rights were and that he stated to the officers that he did so understand" was not supported by the facts. This contention is without merit. Officers Sharpe and Griffin both testified that defendant was read his rights and that he acknowledged understanding them.
Defendant next argues that defendant never intelligently and voluntarily waived his right to remain silent. He argues that this conclusion is required both by the evidence and finding of fact number 14, which states:
"14. That in response to the specific question, `Did he desire to answer the question?' the defendant did not make a specific answer to that question but he continued to state that he did not know anything about the charge against him."
However, in order to determine whether defendant waived his right to remain main silent, it is also necessary to look at the other circumstances. At the time this question was asked defendant had affirmatively waived his right to counsel and affirmatively acknowledged understanding his Miranda rights. Considering these circumstances *664 and the other responses and statements of defendant, including the fact that defendant's only incriminating statements were of an alibi nature as well as denying knowing Zeno Jones or the victim or having been with Linda Faye Carroll, we conclude the evidence supports the substance of finding of fact number 15, which reads:
"15. That in the context in which such response [referring to the response in finding of fact number 14] was made, together with the other circumstances then and there existing, this represented a specific indication that he was willing to answer the questions of the officers and be interrogated; that he did nothing to indicate that he did not want to talk to them; that he was very cooperative and never made any request to the officers to stop asking him any questions."
It therefore follows that the court's conclusions of law are supported by the findings of fact and the evidence. State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975). See also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The assignments of error are overruled.
(15) Under assignment 47, defendant maintains the court erred in its instruction to the jury explaining reasonable doubt. He contends that the judge should have charged as follows in the latter portion of the instruction, "A reasonable doubt . . is an honest, substantial misgiving generated out of the evidence or by the insufficiency of the proof. . ." He argues that he was prejudiced by the omission of the phrase "out of the evidence." He relies on the converse of the holding in State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954), which held that it was error for the judge to define reasonable doubt as one "growing out of the testimony in the case" unless the judge added the words "or from the lack or insufficiency of the evidence" or similar words.
It is a well established rule that a charge must be construed in its entirety. State v. Bailey, 280 N.C. 264, 185 S.E.2d 683 (1971), cert. denied, 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 218 (1972); State v. Leach, 272 N.C. 733, 158 S.E.2d 782 (1968); State v. Blue, 270 N.C. 283, 154 S.E.2d 99 (1967). When the portion of the instruction to which defendant excepts is considered with the rest of the instruction, it is evident that the charge carries the very meaning that defendant feels was omitted. The judge charged that a reasonable doubt "is a sane, rational doubt arising out of the evidence or lack of evidence or from its deficiency." He emphasized the importance of the jury's "considering, comparing and weighing all the evidence." Obviously, when the judge used the language "insufficiency of proof," he still referred to an insufficiency arising out of the evidence or out of the insufficiency of the evidence. The charge given substantially conforms with language approved by our Court in previous decisions. State v. Shaw, 284 N.C. 366, 200 S.E.2d 585 (1973); State v. McClain, 282 N.C. 396, 193 S.E.2d 113 (1972); State v. Britt, 270 N.C. 416, 154 S.E.2d 519 (1967); State v. Hammonds, supra. The assignment is without merit and overruled.
(16) Under assignment 48, defendant argues that the court erred in its jury instructions explaining the elements of the crime of discharging a firearm into an occupied dwelling, particularly as that crime relates to the bill of indictment charging first-degree murder.
The court charged the jury as follows:
"Now, I charge members of the jury that for you to find the defendant guilty of this offense the State must prove beyond a reasonable doubt, first: that the defendant shot Thelma Jones while committing the crime of discharging a firearm into occupied property, and I instruct you members of the jury that in order for the defendant to be guilty of discharging a firearm into occupied property the State must prove each of the following things from the evidence and beyond a reasonable doubt:
"1. That the defendant intentionally used a firearm and I instruct you that a 30.30 rifle is a firearm and that, 2. That *665 he did it without legal excuse or justification, and 3. That he discharged the firearm into a dwelling which was at the time occupied, and 4. He did so at a time when he knew or had reasonable grounds to believe that the dwelling might be occupied by one or more persons; and 5. That the discharge of the firearm by the defendant proximately caused Thelma Jones' death.
"A proximate cause is a real cause, a cause without which Thelma Jones' death would not have occurred.
"Now, members of the jury, the defendant contends that he did not actually fire the rifle into the dwelling. He further contends that he was trying to prevent Linda Carroll from using the rifle on that occasion and that whatever occurred did so as a result of an accident while he and Linda Faye Carroll were struggling for the rifle. If Thelma Jones died by accident or misadventure, that is if the rifle discharged at a time when the defendant and Linda Faye Carroll were struggling for the rifle and the defendant did not intentionally fire the rifle into the dwelling, the defendant would not be guilty of first degree murder." (Emphasis added.)
* * * * * *
"And so members of the jury, if the State has satisfied you beyond a reasonable doubt that on or about June the 3, 1975 Tamarcus Swift shot Thelma Jones, and that he did so while committing the crime of discharging a firearm into occupied property, that is that he intentionally used a firearm and that he did so without legal justification or excuse, and that he discharged the firearm into the dwelling of Zeno Jones which was at the time occupied and that he did so at a time when he knew or had reasonable grounds to believe that the dwelling might be occupied by one or more persons, and that such discharge of the firearm by the defendant proximately caused Thelma Jones' death. It would be your duty to return a verdict of guilty of murder in the first degree; however, if you do not find or have a reasonable doubt as to any one or more of these things you would not find the defendant guilty of this charge, and you would then consider whether or not the defendant is guilty of involuntary manslaughter." (Emphasis added.)
* * * * * *
"[F]or you to find the defendant guilty of discharging a firearm into occupied property the State must prove each of the following things beyond a reasonable doubt:
"1. That the defendant intentionally used a firearm, and I instruct you that a 30.30 rifle is a firearm; and 2. That he did so without legal justification or excuse and, 3. That he discharged the firearm into a dwelling which was at the time occupied and 4. That he did so at that, at a time when he knew or had reasonable grounds to believe that the dwelling might be occupied by one or more persons.
"Now, the defendant members of the jury again contends as he did in relation to the charge of first degree murder. You will consider my instructions as to that as referring to his contentions on this charge; that he didn't intentionally fire the rifle into the dwelling; that he did not fire the rifle; that he was trying to prevent Linda Faye Carroll from using the rifle, and whatever did occur did so as a result of an accident while he and Linda Carroll were struggling for the rifle.
"Likewise by his plea he denies each essential element of the crime with which he is charged, and as to that charge members of the jury if the State has satisfied you beyond a reasonable doubt that on or about June the 3, 1975, the defendant, Tamarcus Swift intentionally used a firearm, and that he did so without legal justification or excuse, and that he discharged the firearm into the dwelling of Zeno Jones which was at the time occupied and that he did so at a time when he knew or had reasonable grounds to believe that the dwelling might be occupied by one or more persons, it would be your *666 duty to return as your verdict a verdict of guilty as charged as to this charge." (Emphasis added.)
* * * * * *
"And so members of the jury, first as to the bill of indictment with which the defendant is charged with first degree murder, and so as to that charge, members of the jury, if the State has satisfied you beyond a reasonable doubt that on or about June the 3, 1975 Tamarcus Swift shot Thelma Jones, and that he did so while committing the crime of discharging a firearm into occupied property, that is that he intentionally used a firearm and that he did so without legal justification or excuse and that he discharged the firearm into the dwelling of Zeno Jones which was at the time occupied and that he did so at a time when he knew or had reasonable grounds to believe that the dwelling might be occupied by one or more persons, and further that such discharging of the firearm by the defendant proximately caused Thelma Jones' death, it would be your duty to return a verdict of guilty of murder in the first degree. However, if you do not so find or have a reasonable doubt as to any one or more of these things, you would not find the defendant guilty of this charge and you would then consider whether or not the defendant is guilty of involuntary manslaughter." (Emphasis added.)
* * * * * *
"Now, members of the jury, as to the other charge, that is the charge of discharging a firearm into occupied property, as to that charge members of the jury I charge you that if the State has satisfied you beyond a reasonable doubt that on or about June the 3, 1975 that the defendant intentionally used a firearm and that he did so without legal justification or excuse and that he discharged the firearm into the dwelling of Zeno Jones which was at the time occupied and that he did so at a time when he knew or had reasonable grounds to believe that the dwelling might be occupied by one or more persons, it would be your duty to return a verdict of guilty of discharging a firearm into occupied property or guilty as charged. By that I mean if the State has satisfied you beyond a reasonable doubt as to each and every one of those elements which I have outlined and heretofore explained to you it is your duty to return a verdict of guilty as charged on this charge." (Emphasis added.)
General Statutes 14-34.1 provides:
"Any person who willfully or wantonly discharges a firearm into or attempts to discharge a firearm into any building, structure, vehicle, aircraft, watercraft or other conveyance devised, equipment, erection, or enclosure while it is occupied, is guilty of a felony punishable as provided under § 14-2."
Defendant contends that State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973), as interpreted by State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864 (1974) (a different Williams) establishes that the instruction should be that the defendant intentionally, without legal justification or excuse, discharged the firearm into an occupied dwelling. Defendant submits that the utilization of the term "intentionally used a firearm" is incorrect and prejudicial.
In State v. Williams, 21 N.C.App. 525, 204 S.E.2d 864, supra, error was found because of the following instructions: ". . . and fourth, and last, that the defendant acted willfully or wantonly which means that he must have known that one or more persons were in the dwelling or apartment." The Court of Appeals held that the instruction did not comply with the language in State v. Williams, 284 N.C. 67, at 73, 199 S.E.2d 409, at 412, supra, which provided that a person is guilty of the felony created by G.S. 14-34.1 "if he intentionally, without legal justification or excuse discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he had reasonable grounds to believe that the building might be occupied by one or more persons." In State v. Williams, 21 N.C.App. 525, at 527, 204 S.E.2d 864, at 865, supra, the language which the court objected to *667 was equating "willful and wanton conduct" with "knowledge of occupancy." There was nothing in either of the Williams' cases banning the terminology "used a firearm."
Although a preferable charge would have used the language "intentionally discharged a firearm," we see no prejudicial error in this case by the use of the language "intentionally used a firearm."
Before the final mandate on murder, when charging the jury as to accident and misadventure, the court instructed the jury that if "the defendant did not intentionally fire the rifle into the dwelling, the defendant would not be guilty of first degree murder." When the charge is read contextually, it becomes clear that the words "intentionally used a firearm," as used by the trial judge, were synonymous with the words "intentionally fired or discharged a firearm." There was no reason for the jury to misunderstand the instruction. No prejudicial error is shown, and this assignment is overruled.
(17) Under assignment 49, defendant asserts that the court erred in its instruction on accident or misadventure.
The court declined to give the following requested instruction by defendant:
"If Tamarcus Swift unintentionally proximately caused Thelma Jean Jones' death by use of a rifle, in a manner which was not reckless or wanton with no wrongful purpose, and while engaged in a lawful pursuit homicide would be excused on the ground of accident or misadventure."
In lieu thereof, the court charged as follows:
"Now, members of the jury, the defendant contends that he did not actually fire the rifle into the dwelling. He further contends that he was trying to prevent Linda Carroll from using the rifle on that occasion and that whatever occurred did so as a result of an accident while he and Linda Faye Carroll were struggling for the rifle. If Thelma Jones died by accident or misadventure, that is if the rifle discharged at a time when the defendant and Linda Faye Carroll were struggling for the rifle and the defendant did not intentionally fire the rifle into the dwelling, the defendant would not be guilty of first degree murder." (Emphasis added.)
Defendant particularly complains because the trial judge used the word actually rather than the word intentionally.
It must be remembered that the trial judge was stating the contentions of defendant when he used the word "actually." When defendant testified, he said, "I did not have my hand on the trigger. Linda's hands were on the gun." He later testified on cross-examination as follows: "I didn't ever touch any part of the rifle down there on the trigger mechanism. . . . I didn't fire it. I didn't have my hands around the trigger." Certainly, the contention stated conforms with defendant's testimony.
Later in the instruction, the judge charged on involuntary manslaughter as follows:
"Now, members of the jury, involuntary manslaughter is the unintentional killing of a human being by an act done in a criminally negligent way. Now, I charge that for you to find the defendant guilty of involuntary manslaughter the State must prove two things beyond a reasonable doubt: First, that the defendant acted in a criminally negligent way. Criminal negligence is more than mere carelessness. The defendant's act was criminally negligent if it was done with such recklessness or carelessness as showed a thoughtless disregard of consequences or a heedless indifference for the safety and rights of others. . . ."
Under this later instruction, in order for the State to secure a conviction, the jury had to believe that defendant unintentionally killed a human being in a criminally negligent manner.
The instructions given substantially comported with defendant's requested instruction, and the assignment of error is overruled.
*668 (18) Under assignment 53, defendant contends that the court erred in its instruction to the jury on possible verdicts for discharging a firearm into occupied property
The record discloses that after the judge had completed his instruction on involuntary manslaughter, he proceeded to the other charge in the following language:
"Members of the jury, in the other bill of indictment, members of the jury the defendant is charged with discharging a firearm into occupied property. As to that charge members of the jury, on that charge there are three possible verdicts: one is guilty of first degree murder, guilty of involuntary manslaughter and not guilty."
In the next paragraph, the court proceeds to give the proper mandate as to the charge of discharging a firearm into an occupied dwelling. Later in the recapitulation, the court properly separated the two cases and told the jury the possible verdicts in each one.
The original lapsus linguae resulted in no prejudice to defendant. The assignment of error is overruled.
(19) Under assignment of error 55, defendant complains about the following language in the judge's instruction: "Any verdict you arrive at must be unanimous; in other words it, there must be a meeting of the minds." (Emphasis added.)
Defendant contends this instruction could have caused the jurors to believe that there must be a meeting of the minds and as a result the jury voted for a verdict of guilty.
The language immediately preceding this instruction was as follows, "[W]hen you go to your room your duty is to arrive at a just verdict in this case and in doing that you are to try to arrive at the truth of the matter."
A charge must be considered contextually, and when this is done, it is clear that no force was applied by the judge. State v. Branch, supra; State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed.2d 102 (1976). Judge Peel was just telling the jury any verdict reached must be unanimous. He did not say a verdict had to be reached.
The assignment is without any merit and overruled.
(20) Under assignments 56, 57 and 58, defendant contends that the felony-murder rule as set forth in General Statutes 14-17 is an unconstitutional denial of due process and equal protection of the law; that the court erred by omitting from its instruction that in order to find defendant guilty of first-degree murder the jury must find defendant killed Thelma Jones with malice, premeditation and deliberation; and that the court erred in failing to instruct the jury that they could return verdicts of second-degree murder and voluntary manslaughter.
General Statutes 14-17 provides:
"A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death."
A violation of this section is an unspecified felony within the purview of General Statutes 14-17 and therefore can result in conviction for first degree murder under the felony-murder rule. State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973).
Defendant contends that General Statutes 14-17 establishes a presumption of premeditation and deliberation and thus violates the requirement of the due process clause of the Fourteenth Amendment that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
We do not believe that Mullaney applies to this situation because G.S. 14-17 is a rule of law and not a presumption. If *669 G.S. 14-17 is compared with murder in the first degree based on premeditation and deliberation, it might be said that the practical effect of G.S. 14-17 is that premeditation and deliberation are presumed when a murder is committed in the perpetration of a felony described under G.S. 14-17. State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971). However, G.S. 14-17 actually involves no presumption at all. Under G.S. 14-17 premeditation and deliberation are not elements of the crime of felony-murder. Thus, the contention of defendant that the act of firing a firearm into an occupied dwelling has no rational connection with premeditation and deliberation is without merit. The only requirement for purposes of G.S. 14-17 is that the felony involved be one of the specified felonies or an unspecified felony within the purview of G.S. 14-17. We have held in State v. Williams, supra, that G.S. 14-34.1 is such a felony because of the reasonable correlation between committing a crime under G.S. 14-34.1 and the possibility of death occurring.
It is a well established rule that when the law and evidence justify the use of the felony-murder rule, then the State is not required to prove premeditation and deliberation, and neither is the court required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it. State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971). Justice Parker (later Chief Justice), speaking for our Court, said in State v. Maynard, 247 N.C. 462, 469, 101 S.E.2d 340, 345 (1958):
"Where a murder is committed in the perpetration or an attempt to perpetrate a robbery from the person, G.S. § 14-17 pronounces it murder in the first degree, irrespective of premeditation or deliberation or malice aforethought. [Citations omitted.]"
Again our Court held, speaking through Justice Ervin in State v. Streeton, 231 N.C. 301, 305, 56 S.E.2d 649, 652 (1949):
"It is evident that under this statute a homicide is murder in the first degree if it results from the commission or attempted commission of one of the four specified felonies or of any other felony inherently dangerous to life, without regard to whether death being intended or not."
Certainly, shooting into an occupied dwelling meets these standards.
Our Court held in State v. Thompson, 280 N.C. 202, 211, 185 S.E.2d 666, 672 (1972), speaking through Chief Justice Bobbitt:
"We have held a felony which is inherently dangerous to life is within the purview of G.S. § 14-17 although not specified therein. [Cases cited.] However as indicated in State v. Doss, supra at 427, 183 S.E.2d 679, no decision of this Court purports to hold that the only unspecified felonies within the purview of G.S. § 14-17 are felonies which are inherently dangerous to life. In our view, and we so hold, any unspecified felony is within the purview of G.S. § 14-17 if the commission or attempted commission thereof creates any substantial foreseeable human risk and actually results in the loss of life. This includes, but is not limited to, felonies which are inherently dangerous to life. Under this rule, any unspecified felony which is inherently dangerous to human life, or foreseeably dangerous to human life due to the circumstances of its commission, is within the purview of G.S. § 14-17."
North Carolina decisions have consistently upheld the felony-murder doctrine involving a felony inherently dangerous to life. For example: breaking, entering and larceny, State v. Thompson, supra; robbery, State v. Rich, 277 N.C. 333, 177 S.E.2d 422 (1970); escape from prison, State v. Lee, supra; rape, State v. Knight, 248 N.C. 384, 103 S.E.2d 452 (1958); kidnapping, State v. Streeton, supra; arson, State v. Anderson, 228 N.C. 720, 47 S.E.2d 1 (1948).
In this case there was no necessity for a charge on second-degree murder or voluntary manslaughter because there was no evidence of either of these crimes. State v. Doss, supra. Thus, Judge Peel submitted the case to the jury under the only possible verdicts open to him under all the evidence in the case.
*670 The assignments of error are overruled.
Assignment of Error No. 2 contends that the sentence of death for the crime of murder in the first degree violates the Eighth and Fourteenth Amendments to the Constitution of the United States.
This assignment must be sustained. Woodson v. North Carolina, supra; State v. Davis, 290 N.C. 511, 227 S.E.2d 97, decided this day. Thus, defendant's motion in arrest of the judgment imposing the death penalty must be allowed. The judgment imposing the sentence of death is vacated and, under the authority of 1973 North Carolina Sess. Laws, Ch. 1201, § 7 (1974 Sess.) a sentence of life imprisonment must be substituted in lieu thereof.
Accordingly, it is hereby ordered that this case be remanded to the Superior Court of Wayne County with directions (1) that the presiding judge, without requiring the presence of defendant, enter a judgment imposing life imprisonment for the first degree murder for which he has been convicted; and (2) that in accordance with this judgment the Clerk of the Superior Court issue commitment in substitution for the commitment heretofore issued. It is further ordered that the Clerk furnish to the defendant and his attorneys of record a copy of the judgment and commitment as revised in accordance with this order.
The defendant's brief has other assignments of error as follows, Numbers 8, 11, 14, 15, 37, 17, 34, 18, 26, 39, 41, 50, 51, 52, 59, 60, and 61. We have examined all of these and find no merit in any of them. In addition, we have searched the record for other errors and have found none prejudicial to defendant.
In the trial we find
NO ERROR.
Death sentence vacated and in lieu thereof life sentence imposed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354245/ | 226 S.E.2d 876 (1976)
30 N.C. App. 376
STATE of North Carolina
v.
Roney Lee JOHNSON.
No. 7610SC87.
Court of Appeals of North Carolina.
August 4, 1976.
*878 Atty. Gen. Rufus L. Edmisten by Associate Atty. Jack Cozort, Raleigh, for the State.
Manning, Fulton & Skinner by Howard E. Manning, Jr., Raleigh, for defendant.
BROCK, Chief Judge.
Before trial defendant filed a motion for a bill of particulars, which reads in pertinent part as follows:
"1. That the defendant cannot adequately prepare or conduct his defense without the following information:
"a. State with particularity the exact circumstances which the State contends constitute the alleged `malice aforethought' of the defendant.
"b. State with particularity and in detail the exact circumstances and manner in which the State contends the defendant killed the deceased."
In our view the motion requested far more than what a defendant is rightfully entitled to have. An accused is not entitled to an order requiring the State to recite matters of evidence in a bill of particulars. G.S. 15A-925(c). The purpose of a bill of particulars is to give an accused notice of the specific charge or charges against him and to apprise him of the particular transactions which are to be brought in question on the trial. State v. Conner, 23 N.C.App. 723, 209 S.E.2d 531 (1974); State v. Wadford, 194 N.C. 336, 139 S.E. 608 (1927).
In the present case the defendant sought to have the State choose between offering defendant's confession wherein he stated that upon being struck a blow by deceased, he drew his pistol and fired; and offering the testimony of the State's eyewitnesses to the effect that after a fight with deceased, defendant obtained a pistol from his automobile and returned to the building, where he shot deceased. Clearly these were discrepancies in the State's evidence, as there generally are, but they were for the jury to resolve. An accused is not entitled to require the State to resolve these discrepancies in advance by a bill of particulars. Nor is an accused entitled to require the State to elect, by a bill of particulars, which witness's version of the events it will present.
The bill of particulars filed by the State in this case reads as follows:
"On the date alleged in the indictment the defendant took a gun from his car or his pocket. Notwithstanding the discouragement of those around him, he pointed the gun at the decedent and pulled the trigger. The gun discharged and the bullet propelled thereby entered the decedent's heart and fatally wounded him."
The foregoing bill furnished to the defendant all and more than that to which he was entitled, particularly with respect to the first sentence. Defendant was not entitled to have the State specify the precise place from where defendant obtained or produced the pistol with which he shot the deceased. Such specification constitutes a recitation of matters of evidence. Defendant's arguments regarding the insufficiency of the bill of particulars are without merit and are overruled.
Defendant argues that the trial court committed error in permitting the State to offer defendant's confession of the shooting because the confession conflicted with the testimony of the State's witnesses and constituted impeachment by the State of its own witnesses. The State's eyewitness version was that defendant left the building, secured the pistol from the trunk of his car, returned to the building, and fired the fatal shot, notwithstanding the fact that defendant's brother tried to restrain defendant. Defendant's confession presented the version that deceased struck defendant, and defendant drew the pistol from his pocket and fired in self-defense. Obviously this does not constitute impeachment by the State of its own witnesses. It is merely a variation in the versions of how the shooting took place. The discrepancy was for the jury to resolve. In any event the offering of defendant's confession was beneficial to defendant because it placed *879 before the jury a possible justification for the shooting. Apparently it had some beneficial effect on the jury because the verdict was second degree murder instead of first degree. We find no merit in this argument.
Defendant argues that the district attorney's remarks to the jury were improper. If so, the trial judge promptly and clearly remonstrated with the district attorney and properly instructed the jury. Defendant's argument is without merit.
Defendant's remaining assignments of error are related to the court's instructions to the jury. We have reviewed these and find no prejudicial error. Considered as a whole, the instructions fairly present the case to the jury under applicable principles of law. In our opinion defendant had a fair trial free from prejudicial error.
No error.
BRITT and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354247/ | 506 P.2d 401 (1972)
L. Keith BENSON et al., Plaintiffs-Appellants,
v.
CITY OF SHERIDAN, Colorado, a Municipal corporation Acting By and Through the BOARD OF TRUSTEES OF the POLICE PENSION BOARD of the City of Sheridan and Duke W. Dunbar as Attorney General of the State of Colorado, Defendants-Appellees.
Thomas W. METZLER et al., Plaintiffs-Appellants,
v.
CITY OF LITTLETON, Colorado, a Municipal corporation Acting By and Through the BOARD OF TRUSTEES OF the POLICE PENSION BOARD of the City of Littleton and Duke W. Dunbar as Attorney General of the State of Colorado, Defendants-Appellees.
Raymond J. PETERSON et al., Plaintiffs-Appellants,
v.
CITY OF CHERRY HILLS VILLAGE, a Municipal corporation Acting By and Through the BOARD OF TRUSTEES OF the POLICE PENSION BOARD of the City of Cherry Hills Village and Duke W. Dunbar as Attorney General of the State of Colorado, Defendants-Appellees.
No. 72-069.
Colorado Court of Appeals, Div. I.
December 19, 1972.
Rehearing Denied January 9, 1973.
*402 Martin P. Miller and James J. Moran, Littleton, for plaintiffs-appellants.
Hemminger, McKendree, Vamos & Elliott, P. C., Gary H. Hemminger, Denver, for defendant-appellee City of Sheridan.
Alan L. Sternberg, Littleton, for defendant-appellee City of Littleton.
Van Cise, Freeman, Tooley & McClearn, Hugh J. McClearn, Denver, for defendant-appellee City of Cherry Hills Village.
Selected for Official Publication.
COYTE, Judge.
The plaintiffs, former police officers for the various defendant municipalities, sought a declaratory judgment as to the rights of former police officers of the municipalities who contributed from their salries to the police pension funds pursuant to C.R.S.1963, XXX-XX-XX, and requested return of their contributions. The cases, brought as class actions, were consolidated and submitted to the trial court on agreed statements of fact. The trial court declared that Article 49 of Chapter 139, C.R. S.1963, as amended, is enforceable by its terms and is sufficient authority for the cities to withhold pension contributions. The court further stated that, since the statute does not provide for refund of contributions to the police officers, the municipalities have no authority to return any of the monies to the plaintiffs. Recovery was denied. Plaintiffs appeal. We affirm.
Article 49 of Chapter 139, C.R.S. 1963, as amended, provides for the creation, funding and operation of police pension funds. Plaintiffs contend that this statute merely enables the municipalities to pass an ordinance or charter amendment to establish a police pension fund. Since none of the cities have such an ordinance or charter provision, plaintiffs argue that defendants were without authority to withhold the amounts for the pension funds initially. Plaintiff's premise is erroneous. The statute provides that the pension system shall exist in every municipality in the state which meets requirements concededly met here. It further creates a board of trustees or recognizes existing boards and vests such boards with authority to make rules and regulations for the operation of the pension funds. C.R.S.1963, XXX-XX-XX, grants the municipalities herein involved the power to pay a sum up to five percent of their total police department salaries into the policemen's pension fund, and C. R.S.1963, XXX-XX-XX, provides that members of the police department in such municipalities shall contribute matching amounts *403 from their salaries. The statute, by its terms, established the pension system without further municipal legislation. See County Comm. v. Edwards, 171 Colo. 499, 468 P.2d 857.
All of the plaintiffs had voluntarily resigned from their respective police departments prior to retirement and without any disabilities. Some are now employed by other police departments within the state. Each defendant city had established a police pension fund in accordance with Article 49, Chapter 139, C.R.S.1963, as amended, for its officers, governed by a board of trustees. However, there were no city ordinances relating to the said funds. Each municipality paid into its fund an amount equal to that withheld from the policemen's salaries. Plaintiffs claim that they are entitled to a refund of amounts withheld from their salaries. The statute does not provide for a refund of the contributions made by the officers. In the case of Derby v. Police Pension and Relief Board, 159 Colo. 468, 412 P.2d 897, where the Denver City Charter was similarly silent as to any refund provision, the Supreme Court held:
"Up to the time the plaintiffs severed their connection with the Police Department, either voluntarily or involuntarily, they were accorded the benefits and full protection under the plan. An officer who voluntarily severed such connection surrendered those rights and quit contributing to the fund and, having had the protection of the plan up to that time, he is not legally, equitably or morally entitled to a return of his contributions."
When the officers contributed their property to the pension fund, they obtained in return a limited vesting of pension rights while employed and a vested pension right upon death, disability or retirement while covered by the pension system. Police Pension and Relief Board v. Bills, 148 Colo. 383, 366 P.2d 581; Police Pension and Relief Board v. McPhail, 139 Colo. 330, 338 P.2d 694. In addition to the benefit and protection of the pension system during their employment, the plaintiffs in the present case are also credited in the various police departments within the state where they are now employed with the time so served in computing their total years of service for establishing pension eligibility. C.R.S.1963, XXX-XX-XX.
Rather than claiming the benefits specified in the act, plaintiffs seek a refund of the sums withheld from their wages. Their demand is answered by the court in Derby v. Police Pension and Relief Board, supra:
"They can find no comfort in the argument that they may have a limited or a vested right to a pension, when a pension is not what they are seeking. The evidence is insufficient, or rather totally lacking, that there was ever any `contractual arrangement' between the parties relating in any way to the return of the officers' contributions."
We have considered the remaining arguments set forth by the plaintiffs and find them to be without merit.
In the absence of any statutory provision or contractual agreement, the rights of police officers under the police pension system do not include the right to a refund; therefore, plaintiffs are not entitled to a return of their contributions.
Judgment affirmed.
DWYER and PIERCE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354248/ | 237 Ga. 73 (1976)
226 S.E.2d 599
JUNG
v.
THE STATE.
30925.
Supreme Court of Georgia.
Submitted March 5, 1976.
Decided June 9, 1976.
Scott Walters, Jr., for appellant.
E. Mullins Whisnant, District Attorney, William J. Smith, Assistant District Attorney, Arthur K. Bolton, Attorney General, for appellee.
HILL, Justice.
A jury found the defendant and Phillip Eugene Campbell guilty of armed robbery. The trial judge sentenced the defendant to eighteen years and Campbell to fifteen years. The defendant enumerates as error the admission of numerous items into evidence, several alleged expressions of opinion made by the trial judge, and the eighteen-year prison sentence he received.
*74 At trial the state introduced evidence to show that on the morning of October 21, 1974, two men, one carrying a shotgun and the other a pistol, entered the victim's home and took a large amount of money. At the time of the robbery the house was occupied by the wife of the homeowner, the maid, the wife's mother-in-law, and a four-year-old child. The four victims were with the robbers for approximately half an hour.
The three adult victims positively identified the defendant at a lineup and also in court. There is no question that the jury verdict was authorized by the evidence.
1. The defendant complains of the admission into evidence of several items not positively identified as having been involved in the crime. He takes the position that the accumulation of these erroneous admissions plus the court's expressions of opinion (discussed in Division 2) deprived him of a fair trial. We first must determine whether or not the introduction of each particular item was error.
The state introduced a pistol and holster which were found on the defendant at the time of his arrest. According to the testimony of the victims, one of the robbers used a pistol to carry out the armed robbery. A blue shirt, navy blue trousers, and jacket which belonged to the defendant were also introduced. The wife testified that one of the robbers, whom she identified as Jung, had on a blue shirt that was very close in color to the shirt placed in evidence, but she could not say positively that he was wearing the same shirt. She also said the pants and jacket were similar in color. She stated that the lining of the jacket worn at the robbery was exactly the same as the lining of the jacket introduced.
Where there is evidence that the perpetrator of a robbery wore certain clothing and carried a pistol, similar items belonging to or found in the possession of the defendant are properly admitted for the jury to consider. Evans v. State, 228 Ga. 867 (4) (188 SE2d 861) (1972); Katzensky v. State, 228 Ga. 6 (3) (183 SE2d 749) (1971). Paraphrasing Lively v. State, 178 Ga. 693, 695 (173 SE 836) (1934), it appears without dispute that the crime was committed with a pistol, and it would make no material *75 difference whether or not the pistol found on the defendant was the particular gun with which the crime was committed. The identification was sufficient to authorize the jury to decide, under the evidence relative to identification, whether or not it was the identical weapon used by the defendant.
The United States Supreme Court in Moore v. Illinois, 408 U. S. 786 (92 SC 2562, 33 LE2d 706) (1972), found no violation of due process by the introduction into evidence of a 16-gauge shotgun found in Moore's possession at the time of his arrest, even though there was evidence that the murder weapon was a 12-gauge gun. The court stated: "We cannot say that the presentation of the shotgun was so irrelevant or so inflammatory that Moore was denied a fair trial." Moore, p. 800.
The defendant's request that Lively v. State, supra, and its progeny be overruled, is denied. The admission of the holster does not constitute reversible error.
A waitress from the restaurant across the road from the victim's home identified the defendant as one of the two men having coffee in the restaurant and drawing a diagram on a place mat just prior to the robbery. The police obtained the place mat from the restaurant. The defendant objected to its admission into evidence. The waitress' testimony placing the defendant in the vicinity shortly prior to the commission of the crime clearly was relevant testimony. Her description of their conduct in the restaurant was admissible and hence the place mat was admissible.
The trial court did not err in allowing these items into evidence.
2. The second part of the defendant's theory that he was denied a fair trial is based on comments made by the court as each of these items was admitted. We have examined the transcript and find that the trial judge's remarks as he ruled on the evidence were not prejudicial.
3. In addition, the defendant urges that the trial judge denied the defendant his right to cross examination in ruling that a particular question concerning the number of bank accounts in the name of the victim's husband's company was irrelevant. The court's ruling was not error.
*76 4. Finally, the defendant argues that the court applied improper criteria in arriving at his sentence of eighteen years. The co-defendant received only fifteen years. The defendant maintains that the disparity between the two sentences is because the the judge relied on his intuition and the defendant's unexplained move from California to Columbus, Georgia.
From the transcript it appears that the co-defendant had never been arrested before while defendant Jung (whose true name is James Valenzule) was carrying a pistol and false identification when arrested and gave police false information as to his true name because he was wanted as a deserter from the army. Only during cross examination at trial did the defendant reluctantly reveal his true identity.
The sentence imposed upon the defendant was within the limit fixed by law (Farris v. State, 35 Ga. 241 (5) (1866)), and the court did not err in setting the sentence.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354286/ | 138 Ga. App. 601 (1976)
226 S.E.2d 755
CARTER
v.
KANSAS CITY FIRE & MARINE INSURANCE COMPANY et al.
51755.
Court of Appeals of Georgia.
Argued February 3, 1976.
Decided April 15, 1976.
Rehearing Denied May 12, 1976.
*605 L. B. Kent, for appellant.
Swift, Currie, McGhee & Hiers, Richard S. Howell, W. Wray Eckl, for appellees.
MARSHALL, Judge.
The question presented in this workmen's compensation case is whether the appellant's heart attack was a compensable injury under the Workmen's Compensation Act. Both the administrative law judge and the full board agreed on the facts:
"While at work on September 9, 1974, the claimant was trying to align a column which was over 14 feet high. The claimant had tied a rope to a column that was already set and was pulling extra hard to align the second column into a position where it would be plumb. The claimant's arms began hurting him, he became short of breath, and he experienced severe pain in his chest. Although it was a warm day, the claimant also became cold to the point that he attempted to warm himself by turning on the heater in his truck.
"The claimant left before completing his day's work but returned to the job the following day at which time he worked seven hours, but had to leave upon experiencing symptoms similar to those encountered on September 9. The claimant worked three hours on Wednesday, September 11, did not work on Thursday, September 12, worked eight hours on Friday, September 13, 1974, and one and one-half hours on Monday, September 16, 1974, which was his last day on the job. The claimant experienced similar symptoms each day he attempted to work after September 9, 1974.
"The claimant had suffered from high blood pressure since 1966 and had been given medication for the same but this condition was nondisabling insofar as his work as a carpenter was concerned.
*602 "On September 10, 1974, the claimant went to John Bush, M. D. The claimant's main complaint was that he generally felt uncomfortable. At no time did the claimant specifically complain about chest pains nor did Dr. Bush's examination reveal any indication of a heart attack. He did complain about having had too much to drink. Dr. Bush treated him for `being drunk.' By his own admission, the claimant drank about a half pint of vodka daily.
"On September 16, 1974, the claimant went to William Richard Snelling, M. D. At this time, the claimant complained of severe pain in both arms and his chest. On Dr. Snelling's advice, an electrocardiogram was taken on September 16, 1974, which revealed that the claimant had at some time sustained damage to his heart."
The administrative law judge and the board disagreed on whether claimant's heart condition was aggravated or caused by his job activities. The administrative law judge found that the claimant's exertion on September 9, 1974, "aggravated his pre-existing condition and was a contributing cause of the resulting disability and incapacity for labor." The full board, on the other hand, found that based on the testimony of Dr. Snelling, claimant had a pre-existing coronary disease which included a heart attack (myocardial infarction) suffered by claimant some time between 1966 and 1974. The board further found that based on this doctor's testimony, the pain (angina pectoris) which was brought on by claimant's exertion was merely a symptom of the coronary disease but that the exertion was not itself an aggravation of that condition. The board concluded: "In brief, he could not work because work produced pain, and thus he had already become disabled and merely discovered he was disabled when he attempted to work. He did not experience an accident which arose out of and in the course of his employment, either in the sense of directly producing a disability or by aggravation of a preexisting condition." The full board denied compensation and an appeal to the superior court was affirmed. Held:
Code Ann. § 114-102, as amended in Ga. L. 1963, pp. 141, 142 provides that the term "injury" and "personal *603 injury" under the Workmen's Compensation Act shall not include "heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis, unless it is shown by preponderance of competent and creditable evidence that it was attributable to the performance of the usual work of employment." It was therefore incumbent on claimant to show that the heart attack was attributable to his work. Rivers v. Travelers Ins. Co., 93 Ga. App. 779 (92 SE2d 818). The claimant physician, Dr. Snelling, was asked, by means of a hypothetical question, whether the heart attack was caused by severe strain connected with his work activities. His opinion was that "he had had this trouble before he pulled on the column," meaning that he had had coronary artery disease before he experienced pain on the job. Dr. Snelling was further asked whether the exertion at work could have aggravated or precipitated his condition to which he responded, "very definitely."
That exertion on the job could have precipitated the heart attack does not show conclusively that it did cause the heart attack; it could have occurred at any other time. This doctor's opinion that work could have caused the heart attack merely left it to the fact-finder to determine whether in fact it did cause or aggravate the heart condition. See McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340, 342 (121 SE2d 801); Woodruff v. American Mut. Liab. Ins. Co., 67 Ga. App. 554 (21 SE2d 298). This evidence, though sufficient to support a finding for claimant (see e. g., Fox v. Liberty Mut. Ins. Co., 125 Ga. App. 285 (187 SE2d 305); Cox v. Employers Mut. Liab. Ins. Co., 122 Ga. App. 659, 660 (178 SE2d 287); Employers Ins. Co. of Ala. v. Brackett, 114 Ga. App. 661 (152 SE2d 420)), does not demand such a finding.
It is always difficult in heart attack cases to draw the line between an injury to the heart that is caused by on-the-job exertion and an injury that pre-existed and merely manifested itself or became symptomatic during job exertion. "[I]t becomes a matter of semantics whether the disability is described as a symptom of the disease or a disability to which the exertion was a contributing precipitating factor. It may well be both. The fact-finding *604 body must in this event remain the final arbiter of the compensability of the attack, and of whether the disability arose out of the employment as well as in the course of it." Cox v. Employers Mut. Liab. Ins. Co., 122 Ga. App. 659, 660, supra. The fact-finder may rely on several different forms of evidence in such cases to establish whether there is a causal connection between the employment activities and the heart attack: medical opinion, lay observations and opinion, and "the natural inference through human experience." See McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340 (2), supra. See also dissent in Brown Transport v. Jenkins, 129 Ga. App. 457, 463 (199 SE2d 910). While all three of these factors in this case could point to a conclusion that the claimant's exertion precipitated his heart attack, the fact-finder was not required to reach that conclusion. The process is one of weighing the facts, and even if the facts could support a conclusion either way, the duty of the reviewing court is not to reweigh the facts, but to search the record for any evidence to support the conclusion reached below. There is evidence in the record in the form of Dr. Snelling's opinion that the heart attack was the result of an on-going progressive coronary disease. There is no question that heart disease, even though painful on the job, is not a compensable injury under the statute. See Employers Ins. Co. of Ala. v. Brackett, 114 Ga. App. 661, supra; Gurin v. Bituminous Cas. Co., 107 Ga. App. 823 (131 SE2d 566); Johnston v. Boston-Old Colony Ins. Co., 106 Ga. App. 410 (126 SE2d 919). The findings and conclusions of the full board supersede those of the administrative law judge (Liberty Mut. Ins. Co. v. Williams, 129 Ga. App. 354 (3) (199 SE2d 673)), and we are required under the "any evidence" rule to uphold those findings and conclusions in this case.
Judgment affirmed. Deen, P. J., Clark and Stolz, JJ., concur. Bell, C. J., and Quillian, J., concur specially. Pannell, P. J., Evans and Webb, JJ., dissent.
QUILLIAN, Judge, concurring specially.
I am constrained to concur because of the any evidence rule.
I am authorized to state that Chief Judge Bell concurs in this special concurrence.
EVANS, Judge, dissenting.
Claimant was a carpenter. While at work on September 9, 1974, he was trying to pull a column into a position where it would be plumb. In seeking the alignment of the column he had to pull unusually hard, and he began to have pains in his arms, shortness of breath, and severe pain in his chest. His pain was sufficient to require him to stop work. He experienced the same symptoms the next day after working only 7 hours, and after 3 hours he experienced pain on September 11, with a history of similar experiences until September 16, 1974, his last day on the job.
He filed a claim for workmen's compensation. He testified he had no knowledge of any heart condition or any physical infirmity until the occasion above-mentioned on September 9. However, there was medical testimony that he had a history of blood pressure, which was not disabling. An electrocardiogram taken on September 16, 1974, revealed he had substantial damage to his heart.
The deputy director rendered his findings of fact and found that "his exertion on September 9, 1974, aggravated his pre-existing condition and was a contributing cause of the resulting disability and incapacity for labor"; that claimant did sustain an injury by accident arising out of and in the course of his employment and he made an award to the effect that he was totally incapacitated for work as a result thereof.
The employer-insurer appealed to the full board, and upon a de novo consideration of the evidence, that board found generally as the deputy director had, but then added that "the claimant may very well have sustained *606 the severe pain he described on September 9, 1974, without in any way aggravating his pre-existing condition ..., and ... merely experienced the symptoms of a pre-existing coronary disease which had then progressed to the point where exertion would produce disabling pain, but this pre-existing condition was in no way aggravated by the exertion." The full board then denied compensation.
Whereupon the claimant appealed to the superior court, but died before a hearing was held. On substitution of his executrix, the court affirmed the award of the full board. The executrix appeals.
1. In order to show that an injury is precipitated while on the job by exertion of the employee, and while in the course of his employment, it is only required that it be shown that the work engaged in was sufficiently strenuous or of such nature, combined with other factors in the case as to raise the natural inferences through human experience that the exertion resulted in the precipitation. Hoffman v. Nat. Surety Corp., 91 Ga. App. 414 (85 SE2d 784); J. D. Jewell, Inc. v. Peck, 116 Ga. App. 405 (157 SE2d 806); Cabin Crafts, Inc. v. Pelfrey, 119 Ga. App. 809 (168 SE2d 660); Brown Transport Corp. v. Jenkins, 129 Ga. App. 457, 459 (2) (199 SE2d 910).
2. An award of the board of workmen's compensation must be supported by findings of fact based on evidence, and if the findings of fact are erroneous, the case should be re-committed to the board for further consideration. Knight v. Fulton Industries, 123 Ga. App. 538, 540 (181 SE2d 691), and cits.
3. The sole difference between the findings of the deputy director and that of the full board is that of aggravation of a pre-existing condition, as opposed to a finding by the board that his activity in no way aggravated his pre-existing condition. All other findings of fact of both are the same. But there is no evidence upon which the board can support its conclusion that there was no aggravation of the pre-existing condition. The lay testimony shows clearly that this claimant had no knowledge of a pre-existing condition until he suffered injury in exerting himself on the job. Neither of the two experts who testified ever stated that there was no *607 aggravation of the pre-existing condition. On the contrary, Dr. Snelling, although being of the opinion that he had this trouble before he pulled on the column, testified to the question as to whether it could have been aggravated or precipitated, and his answer was "very definitely."
4. But the full board misconstrued Dr. Snelling's testimony and found that "based on this doctor's testimony ... the exertion was not itself an aggravation of that condition." See majority opinion, p. 602. In citing this testimony as its reason for finding the injury did not arise out of and in the course of his employment by reason of aggravation, the board is in error. I therefore would reverse and remand for further consideration by the board. I therefore dissent. See in this connection the recent case of Williams v. Morrison Assur. Co., 138 Ga. App. 191 (1), and cits., such as Fidelity &c. Co. of N. Y. v. Hodges, 108 Ga. App. 474 (1) (133 SE2d 406); Barbree v. Shelby Mut. Ins. Co., 105 Ga. App. 186 (123 SE2d 905); Miller v. Travelers Ins. Co., 111 Ga. App. 245, 248 (141 SE2d 223).
I am authorized to state that Presiding Judge Pannell and Judge Webb concur in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/878675/ | 711 P.2d 1352 (1985)
John W. WEBB, Plaintiff and Appellant,
v.
FIRST NATIONAL BANK OF HINSDALE, Defendant and Respondent.
No. 84-531.
Supreme Court of Montana.
Submitted on Briefs June 14, 1985.
Decided December 24, 1985.
Rehearing Denied January 17, 1986.
*1353 Morrison, Barron & Young, Robert C. Melcher, Havre, for plaintiff and appellant.
Gallagher, Archambeault & Knierim, Matthew Knierim, Glasgow, for defendant and respondent.
GULBRANDSON, Justice.
This is an appeal from the District Court of the Seventeenth Judicial District, Valley County. John W. Webb, appellant, filed suit against the First National Bank of Hinsdale (Bank) alleging tortious interference with a contract for the sale of his cattle. He claimed that the Bank wrongfully induced the buyer, Glasgow Livestock Sales Company, Inc. (Glasgow Livestock) to place the Bank's name on a check for the cattle as an additional payee. Appellant appeals an order granting the Bank's motion for summary judgment. We affirm the District Court's order.
From 1970 to 1977, appellant was a customer of the Bank and a good business relationship existed between them. In September 1977 the Bank refused to loan Webb additional money because of outstanding loans.
Appellant then secured financing from another lending institution, the First State Bank of Malta, and purchased 100 cows and 100 calves. He sold some of these cattle to Glasgow Livestock, in November 1978. The Bank, through its attorney, requested that Glasgow Livestock place the Bank's name on the check for the cattle as an additional payee, along with the First State Bank of Malta and another bank. The Bank claimed a right to have its name placed on the check because it claimed a security interest in appellant's cattle based on past loans made to him. He countered that the money owed was secured only by certain trucking equipment and that the Bank could not collect this indebtedness out of the proceeds of the cattle sale.
*1354 Appellant delivered the check from Glasgow Livestock to the First Bank of Malta, where it was retained until appellant paid off their loan on January 31, 1979. The check was then returned to appellant. Finally, on October 18, 1979, the Bank brought a collection action against appellant, Civil Action No. 15311.
Appellant responded by hiring an attorney and inquiring into the possibility of suing the Bank, claiming that it wrongfully induced Glasgow Livestock to place the Bank's name on the check as a payee. The attorney reviewed the Bank's records and concluded that such a suit would have no merit. He advised appellant to negotiate a settlement with the Bank. Subsequently, at appellant's request, the attorney began settlement negotiations with the Bank. Appellant was at all times kept apprised of the negotiations. On December 18, 1979, his attorney and the Bank's attorney stipulated that the collection action should be dismissed with prejudice. As part of this settlement, Webb endorsed the check from Glasgow Livestock over to the Bank and pursuant to the stipulation the Bank discounted its claim by the sum of $4,273.26. The collection action then was dismissed.
For nearly two years afterward there was no further communication between the parties. During that time, however, Webb hired a new attorney, and on November 6, 1981, filed the present action. He alleges that the Bank tortiously interfered with his contractual relations when it induced Glasgow Livestock to place the Bank's name on the check as a payee. The Bank moved for summary judgment under Rule 56, M.R. Civ.P., claiming that the current action was fully settled when No. 15311 was dismissed by the stipulation. Webb responded that the stipulation for dismissal of Civil Action No. 15311 was intended for the settlement of that cause only and was not intended to settle all disputes between the parties. The stipulation and order to dismiss stated that the "above entitled action [No. 15311] be dismissed with prejudice as settled in full." The District Court granted the Bank's motion for summary judgment in the current action.
Appellant appeals the granting of summary judgment. We consider three issues on the appeal:
(1) Whether the negotiated compromise was a full and final settlement which included appellant's claim for tortious interference?
(2) Even if the compromise was a full and final settlement, are there genuine issues of material fact as to appellant's intent, his counsel's authority to enter the agreement and appellant's ratification of the agreement which preclude summary judgment?
(3) Does either estoppel or res judicata bar the current litigation?
... Rule 56(c), Mont.R.Civ.P. permits summary judgment to issue only when there is no genuine issue of material fact, and the moving party is entitled to the judgment as a matter of law.
.....
The moving party's initial burden is twofold. First, it must show the absence of any genuine issue as to material fact. Second, that party must also show that this set of facts entitles it to the judgment as a matter of law ...
In addressing the factual test, although the court has no duty to anticipate or speculate as to material facts to the contrary, it must nonetheless draw every inference in favor of the non-moving party.
If the movant has met this burden, it then shifts to the non-moving party to demonstrate a genuine issue of material fact. Mere denial or speculation will not suffice, the non-moving party must show facts sufficient to raise a genuine issue. (Citations omitted.)
Gamble Robinson Co. v. Carousel Properties (Mont. 1984), 688 P.2d 283, 286-287, 41 St.Rep. 1757, 1760-61.
In the first issue, the Bank argues the District Court properly granted summary judgment because the compromise and settlement in the first action is final and binding on the parties and bars the *1355 current action as a matter of law. Generally, a compromise agreement, when the basis for a final judgment operates "as a merger and bar of all preexisting claims and causes of action." Rodriguez v. Fireman's Fund Ins. Companies (Cal. 1983), 142 Cal. App. 3d 46, 54, 190 Cal. Rptr. 705, 709. In Rodriguez, the action concluded when the plaintiff accepted defendant's settlement offer and the court entered a dismissal with prejudice. The California court equated this dismissal to a verdict and judgment on the merits barring any new actions. Rodriguez, 190 Cal. Rptr. at 710. Folsom v. Butte County Ass'n of Governments (Cal. 1982), 32 Cal. 3d 668, 186 Cal. Rptr. 589, 652 P.2d 437, characterizes a compromise agreement as "[concluding] all matters put in issue by the pleadings that is, questions that otherwise would have been resolved at trial." Folsom, 186 Cal. Rptr. at 596, 652 P.2d at 444. In that case, the statutory rights to costs and attorney's fees were held not to be part of the agreement since they were matters incident to the judgment rather than part of the cause of action. The court also noted the surrounding facts did not show the parties intended costs and fees be included in the agreement. These cases accord with the policy that "reciprocal rights flowing from a common source [should] be determined in a single action, thus avoiding not only unnecessary vexatious litigation but also the contingency of conflicting judgments ..." Kittle Mfg. Co. v. Davis (Cal. 1935), 8 Cal. App. 2d 504, 47 P.2d 1089, 1094, cited in Datta v. Staab (Cal. 1959), 173 Cal. App. 2d 613 343 P.2d 977, 981.
Appellant's argument may be summarized as an assertion that the dismissal with prejudice only had the effect of withdrawing the Bank's claim. This would have merit if appellant had received nothing for the dismissal. However, the amount appellant owed was substantially reduced. He benefitted from the settlement. The Bank received no benefit from agreeing to the discount and dismissal unless it served to end the litigation between the parties. The facts on which appellant relies for this cause of action all occurred prior to the time the Bank brought its collection action. The check at issue was signed and delivered to the Bank from appellant as part of the first settlement. His attorney stated, by affidavit, that "both parties wished to resolve the matter and avoid the costs of further litigation over who was a proper payee on the proceeds check ... or the amount due the bank." He also stated that he "acted with the full knowledge and authority of [his] client, Mr. Webb, in negotiating and accepting the settlement." The appellant stated by deposition that he discussed the presence of the Bank's name on the check with his attorney and that the attorney advised him he "didn't have a lawsuit" and should settle his differences with the Bank. The affidavits of other persons involved in the negotiations reflect that the parties discussed all issues including the question of who was the proper payee on the check and that the amount appellant paid the Bank in exchange for a discount of the amount due concluded all outstanding disputes. Appellant does not contradict the evidence showing the parties discussed the current claim and included it in their negotiations. He accepted the benefit of its inclusion, a reduction of the amount due. We hold that the dismissal with prejudice in the first action concluded the pre-existing claims between the parties. The Bank therefore was entitled to a summary judgment in its favor.
Appellant argues in the second issue that he never intended his attorney to have authority to settle his tortious interference claim, and that this raises a genuine issue of material fact precluding summary judgment. We agree with his contention that the compromise agreement may not be fully binding unless the attorney has the authority to enter the agreement. However, appellant's remedy is to bring an action to set aside the agreement. McGinley v. Maryland Casualty of Baltimore (1929), 85 Mont. 1, 277 P. 414. The client in McGinley knew how the settlement had been accomplished and took no action to set it aside for nearly a year.
*1356 If defendant has ratified the acts of its attorney, it will not be heard to complain, and slight evidence of acquiescence on the client's part will be deemed a ratification of the acts of the attorney in making the compromise. (Thornton on Attorneys at Law, p. 400, sec 222.) These principles find recognition in the case of Harris v. Root, 28 Mont. 159, 72 P. 429, relied upon by defendant. Here the stipulation and dismissal took place in July, 1926. The defendant's answer in this case was filed in July, 1927, which shows knowledge at that time of the settlement, and, though this action was not tried until June, 1928, the record fails to show any affirmative action taken by the defendant to repudiate the settlement agreement. Such conduct on the part of the defendant is tantamount to a ratification of the settlement and dismissal of the former action.
85 Mont. at 10. When his attorney wrote him a letter advising him of the result of the negotiations, appellant accepted the offer and acknowledged the discount of the amount he owed the Bank. This shows his knowledge at the time of the settlement. Appellant acquiesced for nearly two years in the benefits of the bargain and with specific knowledge of its terms. His conduct amounts to a ratification of the settlement and dismissal under McGinley, 85 Mont. 1, 277 P. 414, and Harris, 28 Mont. 159, 72 p. 429. In addition, his attorney stated he had appellant's express authority to "negotiate a settlement of the outstanding differences" between appellant and the Bank. Appellant's claim that the attorney lacked authority, absent any action to set aside the agreement, does not raise a factual question material to the current action of tortious interference against the Bank. The District Court correctly found that his contentions at this late date were not material and would not preclude summary judgment.
The Bank argues that estoppel and res judicata also bar appellant's current action against it. The District Court mentioned both doctrines as possible bases for summary judgment. Our holdings on the first two issues dispose of this appeal. We therefore do not address this issue.
The order of the District Court is affirmed.
TURNAGE, C.J., and WEBER, SHEEHY and HUNT, JJ., concur.
MORRISON, Justice, dissents as follows:
I dissent.
The appellant, John W. Webb, had, in the past, obtained financing from the defendant, First National Bank of Hinsdale, for the purpose of buying cattle. Eventually Webb changed banks and began financing his cattle buying operation through the First State Bank of Malta. At the time he changed banks he owed the Hinsdale Bank $29,000 with interest from January 25, 1978. This note was secured by four semitrailers. On November 7, 1978, Webb sold cattle to the Glasgow Livestock Sales Company and received a check for those cattle in the amount of $30,389.00. The check was made payable to Webb, the First State Bank of Hinsdale and to the First State Bank of Malta. The First State Bank of Hinsdale had its name put on the check without Webb's consent apparently to secure the $29,000 debt owing from Webb to the Hinsdale Bank.
On January 25, 1978, the First National Bank of Hinsdale had instituted proceedings to collect on the $29,000 note due from Webb to the Hinsdale Bank. In order to free up the money received from the cattle sales Webb agreed to pass a substantial portion of the cattle sale proceeds over to the Hinsdale Bank in return for a dismissal of that action. In order to obtain the cash settlement the Hinsdale Bank discounted its claim to the sum of $4,273.26. The action instituted by the Hinsdale Bank was dismissed with prejudice. That action contained no issues other than the collection proceedings instituted by the Bank. Webb did not file an answer and did not allege any claims against the Bank by way of offset or counterclaim.
*1357 The majority opinion holds that dismissal of the collection suit instituted by the Bank settled the tortious interference claim that Webb had which was premised upon the fact that the Hinsdale Bank improperly asked that its name be put on the check he was to receive for the sale of his cattle. Webb contended that the cattle did not secure his loan with the Hinsdale Bank and that the Bank was not entitled to any of those proceeds as a matter of lien. In this case Webb contends that the Bank tortiously interfered with his contractual relationships with the Glasgow Livestock Company by improperly claiming an interest in his cattle sales. This claim formed no part of the collection suit instituted by the Hinsdale Bank against Webb and therefore the dismissal with prejudice of the Bank's claim in that case, settled nothing with respect to Webb's tortious interference claim.
The defendant Bank seeks to shore up its argument by contending that the affidavit of Webb's attorney shows that Webb and the Bank intended to settle all claims including the tortious interference claim that Webb had against the Bank. This argument should fail for the following reasons:
1. The record in the collection case is clear and needs no explanation. The dismissal with prejudice could do no more than settle the claims pending in that action. Since a counterclaim for tortious interference would not be a compulsory counterclaim the issue involved in this case could have in no way been a part of that first litigation instituted by the Hinsdale Bank.
2. Any communications between Webb and his attorney with respect to what was involved in the dismissal with prejudice, are privileged and cannot be used against Webb. I am at a loss to understand how Webb's attorney reconciles his affidavit with the canons of ethics.
3. Even if the attorney's affidavit could be considered, the facts stated therein are disputed by Webb so that a summary judgment would not be proper.
In summary, dismissal with prejudice of the collection suit did not settle Webb's separate claim for tortious interference with contract rights. It could not; it did not. Summary judgment should be reversed and the matter remanded for trial.
HARRISON, Justice.
I concur in the foregoing dissent of Justice Morrison. | 01-03-2023 | 06-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354195/ | 138 Ga. App. 425 (1976)
226 S.E.2d 292
DENNIS
v.
ADCOCK et al.
51960.
Court of Appeals of Georgia.
Argued April 12, 1976.
Decided April 22, 1976.
*427 Kunes & Kunes, G. Gerald Kunes, for appellant.
Lokey & Bowden, Hamilton Lokey, Glenn Frick, Edmund Landau, Jr., Watson, Spence, Lowe & Chambless, G. Stuart Watson, for appellees.
DEEN, Presiding Judge.
1. Code § 38-713 provides: "(a) Medical records, or reproductions thereof, when duly certified by the custodians thereof, need not be identified at the trial and may be used in any manner in which records identified at the trial by the custodian could be used." The preamble to the Act of origin (Ga. L. 1971, p. 441) states that it provides "for the authentication and admissibility of medical records or copies thereof for use as evidence" and to "excuse certain persons from personally appearing in *428 certain circumstances," among other things. It deals with preliminary proof only. In no part does it enlarge upon the effect or the admissibility of evidence in other than a formal sense; that is, it provides a means of identification absent a custodian, but otherwise is to be used in the same manner as though the custodian were present.
2. The rules relevant to the introduction of medical records, in a substantive sense, remain unchanged. "If a hospital record contains diagnostic opinions and conclusions, it cannot, upon proper objection, be admitted into evidence unless and until the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based." Cassano v. Pilgreen's, Inc., 117 Ga. App. 260 (2) (160 SE2d 439), and see Atlanta Transit System v. Biggs, 133 Ga. App. 960 (1) (213 SE2d 87). Exactly the same rule applies to any inadmissible testimony contained in the hospital record, including hearsay, and "hospital records admitted in toto rather than through selected relevant portions were inadmissible because of the presence therein of hearsay, statements of opinion, and similarly objectionable items." Bowen v. Sentry Ins. Co., 134 Ga. App. 88 (2) (213 SE2d 185). A statement in a hospital record that a patient stated to his nurse that he had been drinking on the day of the accident is patent, unalloyed hearsay, and there is no way in which it can be legally admitted over proper objection to prove the fact at issue: intoxication. Even when admitted without demur it has no probative value and on request the jury should be so instructed.
3. As counsel for the appellant admits, whatever part of the hospital record in question was properly admissible as to content could have been obtained and introduced in evidence by other means than certification; for example, by subpoena or a notice to produce. It is not the manner in which the defendants in the damage suit obtained the record and had it prepared for admission in evidence, but at least so far as this record shows the failure of the plaintiff to object to inadmissible material, which placed the statement of the plaintiff's intoxication before the trial jury. The same choices were open, the *429 same results would obtain, regardless of the method used.
As stated in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 S.E. 68), the right to privacy which is basically the right to be let alone may be waived by the individual concerned. It appears to us that these defendants did no more than furnish a certified copy of medical records in the same form in which they would have been if identified by the testimony of the custodian.
We cannot tell from the record before us whether there was on the trial of the previous case an objection to the hearsay statements (which was in order whether the documents were offered by certification, or identification by a witness), or whether there was a request to charge on the subject. But the method of introduction of the document would not change the law regarding the admissibility of its contents as between these or other legal means.
4. But, the plaintiff argues, the hospital record was a confidential document. Such records, being obtainable in legal proceedings by subpoena and other means, are obviously not absolutely confidential in the sense that they cannot be used.
Insofar as privilege is concerned, there is no privileged communications immunity in Georgia between hospital and patient. It should also be observed that in libel and slander cases there is an absolute privilege as to pertinent evidence introduced in a judicial proceeding and relating to its subject matter. Veazy v. Blair, 86 Ga. App. 721 (2) (72 SE2d 481); Horton v. Tingle, 113 Ga. App. 512 (2) (149 SE2d 185). While the question has not before been raised in Georgia, the general rule is that evidence introduced in a legal proceeding which, as against a slander or libel action, would be absolutely privileged cannot be the subject of damages for the tort of invasion of privacy. In Munsell v. Ideal Food Stores, 494 P2d 1063, 1075, in ruling on a count charging invasion of privacy it was held: "It is clear from the decisions that only unwarranted invasions of the right of privacy are actionable. The corollary to this rule is that a `warranted' invasion of the right of privacy is not actionable. Appellant urges that we recognize and apply here the rule that the right of privacy does not prohibit the *430 communication of any matter though of a private nature, when the publication is made under circumstances which would render it a privileged communication according to the law of libel and slander. This rule is recognized in 41 AmJur. Privacy, § 20, p. 940; Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 55 A. L. R. 964; and in the first comprehensive article on the subject of the `Right to Privacy' in 4 Harvard Law Review 193, at page 216, published by Samuel D. Warren and Louis D. Brandeis in 1890. We hold that the rule is sound and should be applied in the case at bar."
Whether or not the plaintiff told a nurse that he had been drinking all day, and whether or not the statement was true, its introduction by way of evidence material to a tort action could not be the foundation of a libel action. It follows that the plaintiff cannot recover damages for such use under the guise of an invasion of privacy rather than a libel.
It is true that the public's right to inspect county and municipal records set out in Code Chapter 40-27 is held not applicable to "medical records and similar files, the disclosure of which would be an invasion of personal privacy." Code § 40-2703. It is true that unauthorized publicity regarding the contents of such records, the patient's state of health, his anatomical debilities, and the opinions, diagnoses and tests of his doctors would indeed come within the inhibition of this Code section, but even so use in a relevant court proceeding is far different from dissemination by television or newsprint. Cf. Peacock v. Retail Credit Co., 302 FSupp. 418, in which the distinction between public and private disclosure was carefully drawn by Judge Edenfield.
The petition failed to state a claim for invasion of privacy against any of the defendants, and the trial court properly sustained the motions to dismiss.
Judgment affirmed. Quillian and Webb, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354199/ | 138 Ga. App. 351 (1976)
226 S.E.2d 72
McCOOK
v.
BECK.
51803.
Court of Appeals of Georgia.
Submitted February 3, 1976.
Decided April 7, 1976.
B. O. McCook, pro se.
Twitty & Twitty, Frank S. Twitty, for appellee.
MARSHALL, Judge.
This appeal is from a consent judgment for $600 plus costs in favor of the plaintiff below. Appellee, Mrs. Beck, is the sister of appellant McCook. In 1972 Mr. Beck was killed in an auto accident and Mrs. Beck seriously injured. Mrs. Beck appointed her brother McCook as her attorney-in-fact to collect sums of money due her as a widow and to pay her lawful indebtedness to the extent of such collections. The parties agreed that McCook collected $1,750 and paid out sums of money in discharge of unspecified debts.
Subsequently Mrs. Beck contended that McCook had not paid more than $750 of her debts and owed her $1,000. She demanded an accounting and surrender of money owing to her. Being unsuccessful in the settlement, Mrs. Beck brought suit alleging these facts and demanded $1,000.
The case was set for the October term of 1975. On September 25, 1975, a pre-trial conference was held in the chambers of the Judge of the Superior Court of Mitchell County to limit the issues actually in dispute. During the pre-trial conference Mrs. Beck indicated she would be *352 willing to settle for less than the $1,000 upon which the suit was based. Mr. McCook agreed he would pay some amount. After continued discussions, both parties agreed in the presence of the trial judge that a judgment could be entered for Mrs. Beck in the sum of $600 plus costs. The superior court judge personally prepared the consent decree and both parties signed in the presence of each other and in the presence of the judge. Thereafter the consent decree was approved by the judge. An affidavit by the judge indicates the signing of the consent decree was the free and voluntary act of Mr. McCook.
Appellant now enumerates as error the act of the trial court in entering judgment out of term and in refusing to hear evidence of payments made by appellant prior to the entry of the consent judgment. Held:
It has long been the law of this state that a decree by a court of record purporting upon its face to be taken by consent of all parties to the record, has the verity of a record as to the recital of the consent, and is not to be controverted except for fraud, accident or mistake, and then only on a proceeding directly to set it aside. Clews & Co. v. First Mortgage Bondholders, 51 Ga. 131; Estes v. Estes, 192 Ga. 94, 96 (14 SE2d 681). Even though what purports to be a consent verdict may fail as a judgment binding upon the parties, because of want of jurisdiction in the court or other valid reason, still, if the terms of the same were, upon sufficient consideration, agreed to by the parties with a full knowledge of its contents, the consent decree may be pleaded in bar of the rights of the parties assenting thereto. Kidd v. Huff, 105 Ga. 209 (31 S.E. 430). See Allen v. Withrow, 215 Ga. 388, 390 (110 SE2d 663) and cits.
In this case, assuming a dispute existed between the parties as to the amount involved in the controversy (a fact we may not verify since no transcript was prepared at the pre-trial conference), appellant does not contend he was unaware of the terms of the consent decree or that he was fraudulently induced to sign or signed through mistake or accident the consent decree. Under the terms of the decree, there was adequate consideration on behalf of both parties. In view of the voluntary settlement of this litigation and the consent decree entered by the superior *353 court, there remains nothing for this court to consider. Driver v. Wood, 114 Ga. 296 (40 S.E. 257).
Judgment affirmed. Pannell, P. J., concurs. Evans, J., concurs specially.
EVANS, Judge, concurring specially.
I agree with all that is said in the majority opinion and add the following: Defendant cites Bedenbaugh v. Burgin, 197 Ga. 175, 180 (28 SE2d 652); and Gaither v. Gaither, 205 Ga. 572 (54 SE2d 600), and appears to contend because of these decisions that the agreement she signed was not binding. These two cases hold that no valid and binding consent can be given prior to the appearance term of court. But the Appearance Term is no longer with us (Code Ann. § 81-1003 now partially repealed by CPA); and instead we have an "appearance day" which is thirty days after suit has been served. See Code Ann. §§ 81A-104 (d) (1), 81A-140. But regardless of appearance term or appearance day, the agreement here was executed more than thirty days after suit was filed and the cases relied upon by the defendant are not applicable. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354204/ | 138 Ga. App. 456 (1976)
226 S.E.2d 271
GRAYBAR ELECTRIC COMPANY, INC.
v.
OPP et al.
51932.
Court of Appeals of Georgia.
Argued March 1, 1976.
Decided April 9, 1976.
Rehearing Denied April 23, 1976.
Greene, Buckley, DeRieux & Jones, C. Richard McQueen, James R. Kelley, for appellant.
Gerstein, Carter & Chesnut, J. David Chesnut, Michael King, for appellees.
MARSHALL, Judge.
The issue presented by this appeal is whether a creditor who obtains a default judgment against his debtor on open account must prove damages under CPA § 55 (a) when he simultaneously obtains a default judgment against the debtor's guarantor.
Graybar, the creditor, sold Opp Electric Company, the debtor, various electrical supplies and equipment on open account. Orville and Jo Ann Opp, the guarantors, signed a "General Continuing Guaranty" wherein they guaranteed to Graybar the "prompt payment in full when due of all present and future indebtedness on account" of Opp Electric for goods supplied by Graybar to Opp Electric. The guarantors' liability was unlimited and was not "in consideration of or contingent upon the liability of any other person." The guaranty further provided that upon default of the debtor the creditor could "proceed directly and at once ... against the undersigned [guarantors] ... without proceeding against the Debtor or any other person ..." There was also a provision for the payment of attorney fees by guarantors for enforcement of the guaranty contract. One of the admitted purposes of the guaranty was to induce the creditor Graybar to extend credit on account to the debtor, Opp Electric.
Suit was brought in Fulton County by the creditor against the guarantors and the debtor seeking joint liability of an alleged amount due on the account of $44,088.38. The complaint also sought attorney fees in the amount of $4,433.84. The guarantors were residents *457 of Fulton County; the debtor was a resident of DeKalb County.
Neither the debtor nor the guarantors answered the complaint within the time allowed. Thereafter, the creditor obtained a default judgment against them jointly and severally without the presentation of evidence of damages under CPA § 55 (a). The debtor and guarantors then separately moved to set aside the judgment under CPA § 60 (d) on the ground that these defects appeared on the face of the record: as to the personal guarantors, the creditor's complaint was not a suit on open account, which does not require proof of damages under CPA § 55 (a), but was actually a suit on a guaranty contract and therefore required proof of damages; as to the debtor, since there could be no default judgment as to damages against the resident defendants, the judgment as to it was also void for lack of jurisdiction over a nonresident.
The trial judge granted the motion and set aside the default judgments against both the debtor and the guarantors and allowed both to file defensive pleadings. He also granted a certificate for immediate review, as did this court. Held:
1. "`A contract of guaranty exists where one lends his credit for the benefit of another, but under an obligation which is separate and distinct from that of the principal debtor, and where he renders himself secondarily or collaterally liable on account of any inability of the principal to perform his own contract.'" Arkansas Fuel Oil Co. v. Young, 66 Ga. App. 33, 35 (16 SE2d 909). Consequently the guarantor cannot be sued jointly as a co-defendant with the debtor unless the debtor is shown to be insolvent. Hammond v. Southern Cotton Oil Co., 101 Ga. App. 368 (114 SE2d 54); Pelham v. W. T. Rawleigh Co., 33 Ga. App. 356 (1) (126 S.E. 302). However the guaranty instrument here specifically provides that suit may be brought directly against the guarantors "without ... having to proceed against the... debtor." See General Finance Corp. v. Welborn, 98 Ga. App. 280, 285 (105 SE2d 386). This clause had the effect, insofar as bringing suit is concerned, of subjecting the guarantors to suit jointly with the debtors and giving the court jurisdiction over the resident and nonresident defendants *458 when suit was brought in the county (Fulton) of one of the defendants (the Opps). Byrd v. Moore Ford Co., 116 Ga. App. 292 (2) (157 SE2d 41). At that point the trial court had the power to determine the liability of all defendants and it exercised the power in entering default judgment against all defendants. We must therefore conclude that the trial court erred in setting aside the judgment on the claim against the debtor, Opp Electric, in the full amount, plus attorney fees, because that claim was based on an open account and was therefore one for liquidated damages and comes under the exemption from proof of damages under CPA § 55 (a).
2. However as to the guarantors, the claim is not one of open account but is a suit on the guaranty contract, and therefore cannot be considered one for liquidated damages.
The guaranty contract is a separate obligation from the open account. The importance of the distinction is pointed out in Escambia Chemical Corp. v. Rocker, 124 Ga. App. 434 (2) (184 SE2d 31), where this court held that the liability of the guarantor and the amount of damages is not established automatically upon proof of liability of the debtor. Instead, the court adopted the Restatement rule that upon proof of judgment against the debtor by the creditor, a rebuttable presumption arises of the debtor's liability to the creditor. Id. p. 437. The court also extended the rule to judgments obtained against the debtor by default. Id. pp. 439-440. The court held that the guarantor "may challenge the debtor's liability or the amount thereof ... with the qualifications that in doing so no defense may be interposed which would not have been available to the debtors if it had been timely presented, and that those defenses which are personal to the debtors may not, in any event, be raised, such as, for example, that the debt is barred by the statute of limitation, or that the debtor has been discharged in bankruptcy, or that the debtor is or was a minor when the debt was contracted, or where the debtor is a corporation that the contract under which the indebtedness arose was ultra vires, etc. The very nature and purpose of a guaranty contract proscribes the allowance of defenses which are personal to the debtor." Id. p. 440.
*459 Nevertheless the guarantors failed to timely answer the complaint and, in so doing, failed to rebut the presumption of their debtor's liability. Therefore, as to their liability under the guaranty contract the default judgment was properly entered against them. To rule otherwise would mean that default judgment could never be entered against a guarantor. It was therefore error to set aside the default judgment against the guarantors and to allow defensive pleadings to be filed contesting their liability.
However, as to the amount of damages, the creditor is still required under CPA § 55 (a) to offer evidence of the amount thereof, because the suit on the guaranty contract is not one for liquidated damages. This defect (failure of proof of damages) appears on the face of the record and was a proper ground for setting aside the judgment under CPA § 60 (d). Therefore, as to the individual guarantors, Orville and Jo Ann Opp, the trial court properly set aside the default judgment against them insofar as the amount of damages entered therein. The case is remanded for a hearing as to the amount of damages owed by the Opps under the guaranty contract in accordance with the principles set forth herein.
Judgment affirmed in part, reversed in part and remanded with instructions. Pannell, P. J., concurs. Evans, J., concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354212/ | 138 Ga. App. 649 (1976)
226 S.E.2d 771
MARTIN et al.
v.
ROLLINS, INC. et al.
51728.
Court of Appeals of Georgia.
Argued January 9, 1976.
Decided April 28, 1976.
Rehearing Denied May 17, 1976.
Nixon, Yow, Waller & Capers, D. Field Yow, Paul H. Dunbar, III, for appellants.
Kaler, Karesh & Frankel, Jerry L. Sims, Samuel N. Frankel, Glenville Haldi, for appellees.
MARSHALL, Judge.
The questions presented in this appeal are whether a contractor could rescind a construction contract and whether or not the owner, on whose property the construction was taking place, breached the contract. Both questions involve unresolved factual disputes, and summary judgment was properly denied.
The facts show that the landowner, Rollins, had entered into a construction contract with the appellant contractor to build a plant and warehouse for one of Rollins' subsidiary fabric operations. Before the construction was completed, but after the completion *650 deadline, Rollins entered into a sale-lease-back agreement with the Development Authority of Richmond County. Under this arrangement, Rollins became the lessee and the development authority became the fee simple title holder of the property and its improvements. The development authority then entered into a trust indenture with First National Bank & Trust Company of Augusta, transferring the property to the bank as security for a $1.2 million bond issue to finance the acquisition of the project.
When the contractor learned of these transfers and agreements, which had taken place allegedly without its consent, it stopped construction for fear that continuing work would amount to a ratification of or acquiescence in the transactions. The contractor did not desire to acquiesce in the new arrangement because it felt that the transfer violated a nonassignment clause in its contract with Rollins, that Rollins would no longer be legally required to make payments under the contract and that its lien rights would be substantially impaired since the property now belonged to the development authority, a public corporation, exempt from liens. In fact, after the transaction, the contractor sent a routine request for progress payments to Rollins to which Rollins responded: "The financing of the construction of the plant facility in Augusta has been transferred to the Development Authority of Richmond County ..." and that payment would be made by the authority from a trust fund at First National.
The contractor then brought this action against Rollins electing to treat the contract as rescinded and seeking quantum meruit for the value of work already performed for which it had not been paid. Rollins answered admitting selling the property to the development authority but contending that because of the lease-back agreement, it remained responsible for payments under the construction contract so that the contractor's position had not been jeopardized. Rollins alleged further that had the contractor completed performance on time in accordance with the extensions under the contract, the sale-lease-back agreement, which had been previously arranged, would have transpired *651 after the contract was no longer involved. Rollins also counterclaimed for damages caused by the contractor's alleged delays, defective construction, and cost of completion of the project.
The contractor moved for a partial summary judgment on its action in quantum meruit (partial because the fair value of the work performed remained a question of fact) and alternatively to dismiss Rollins' counterclaim. The trial court denied both motions and the contractor was granted an interlocutory review of that denial. Held:
We find no error in the denial of both the motion for partial summary judgment and the motion to dismiss Rollins' counterclaim. Interlocutory review was granted on the premise that both parties' contentions could be decided as a matter of law. However, Rollins has raised at least one disputed issue of material fact which requires resolution by the factfinder.
There is a question as to whether the contractor may rescind the contract. Rescission, without assent, is a permissible response of a party to a contract where the other party thereto has failed to perform his covenants and the parties can be restored to status quo. Code § 20-907. See Cutcliffe v. Chesnut, 122 Ga. App. 195 (2) (176 SE2d 607). "A breach of a contract as to a matter so substantial and fundamental as to defeat the object of the contract may authorize a rescission of the contract by the opposite party." Sinclair Refining Co. v. Davis, 47 Ga. App. 601 (171 S.E. 150). However, the right of a party to rescind a contract depends upon that party's not having breached the contract himself. "The party who seeks to rescind a contract because of the other's default must show that he has done all that he is required to do in order to entitle himself to a performance of it by the other party. Moreover, a party seeking to rescind must show that he was free from default in relation to the obligation which he claims the other party failed to perform. The right to rescind or terminate a contract on the ground of failure of performance by the opposite party belongs only to the party who is free from substantial default himself, and a party who has substantially broken the contract cannot rescind it on the ground that the other party subsequently *652 refused or failed to perform." 17 AmJur2d 979, Contracts, § 503. See Clifton v. Dunn, 208 Ga. 326 (4) (66 SE2d 735); Fletcher v. Fletcher, 158 Ga. 899 (4) (124 S.E. 722); Marietta Pub. Co. v. Times Pub. Co., 26 Ga. App. 752, 757 (107 S.E. 270).
Rollins alleges that at the time the contractor attempted to rescind the contract, the contractor was himself in substantial breach of contract in that he had not completed performance on time and time was of the essence of the contract. The contractor on the other hand alleges that any delays in completion were caused by various acts of hinderance and interference by Rollins. The sequence of these alleged defaults is important, and if it is shown plainly that the contractor fell behind in their work performance prior to the transfer of the land to another by Rollins, then, Martin and Adams would have breached the contract first and forfeited their right to insist that the other party to the contract comply strictly with its terms. See Warren v. Gray, 90 Ga. App. 398 (83 SE2d 86); Morgan v. Crowley, 91 Ga. App. 58, 71 (8) (85 SE2d 40).
If the contractor's claims for quantum meruit are resolved in his favor under his complaint, then Rollins' counterclaim becomes an issue and it too presents factual questions to be resolved by the jury. Summary judgment was properly denied on both motions.
Judgment affirmed. Pannell, P. J., concurs. Evans, J., concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354215/ | 267 S.C. 71 (1976)
226 S.E.2d 240
TITLE INSURANCE COMPANY OF MINNESOTA, Appellant,
v.
Frank L. CHRISTIAN, III, and Christian and Mann, Attorneys at Law, P.A., Respondents.
20243
Supreme Court of South Carolina.
June 15, 1976.
*72 J. Reese Daniel, Esq., of Columbia, for Appellant.
*73 James L. Mann, II, Esq., of Columbia, for Respondents.
*74 June 15, 1976.
GREGORY, Justice:
This action was commenced by the service of a summons and complaint on May 22, 1972 wherein the appellant, a title insurance company, sought to recover actual damages against the respondents, attorneys, for failure to exercise reasonable professional skill. The respondents served an answer to the complaint on June 21, 1972 raising three defenses.
The respondents were a professional association of practicing attorneys at law. Respondent Christian, on behalf of the firm, signed an application to the appellant for a binder for a policy of title insurance insuring a mortgage to be given to First Citizens Bank and Trust Company of South Carolina by Town and County Builders, Inc. to secure an Eight Thousand ($8,000.00) Dollar loan to Town and County. The application showed no exceptions or defects in the title. The appellant issued its usual form of Mortgagee's Policy to the bank insuring that the bank's mortgage was a first lien on the real property described therein.
Thereafter, one J.R. Lanier commenced an action to foreclose a mortgage on the same property, with the exception of one lot, and the Lanier mortgage was held to have priority over the bank's mortgage as to seven (7) of the eight (8) lots. The Lanier mortgage was of record prior to the respondents' certificate to the appellant. The appellant subsequently paid the bank Seven Thousand ($7,000.00) Dollars and commenced this action against the respondents for failing to report the Lanier mortgage on the application for the title insurance binder.
The appellant served notice of motion for summary judgment upon the respondents, attaching affidavits in support thereof. Respondents filed no opposing affidavits, relying solely on their answer. The motion was argued before Judge Mason, February 6, 1970 and orally denied.
*75 Thereafter, James L. Mann, II, was substituted as counsel for the respondents and J. Reese Daniel was substituted as counsel for appellant. The respondents moved to make First Citizens Bank and Trust Company (hereinafter referred to as the Bank) a party to the action, and served an affidavit in support of the motion. This motion was argued before Judge Mason on April 10, 1974 and the appellant's motion for summary judgment was re-argued in the light of the additional affidavit supplied by the respondents by substituted counsel. Judge Mason thereupon issued an oral order again denying the appellant's motion for summary judgment on the grounds that the matter presented an issue of fact for jury determination. The motion to add a party was not pursued.
Thereafter, on September 8, 1975 the case came on for trial before the Honorable Legare Bates and a jury. At the conclusion of the appellant's testimony, Judge Bates granted respondents' motion for an involuntary nonsuit.
Notice of intention to appeal was served on September 10, 1975. Appellant's exceptions center around two main issues: the denial of its motions for summary judgment and the granting of respondents' motion for nonsuit.
Appellant alleges that the respondents made no showing of factual issues and the answer, if true, did not constitute a legal defense and that they were, thus, entitled to summary judgment as a matter of law. Our Circuit Court Rule 44, providing for summary judgment, is modeled after Rule 56 of the Federal Rules of Civil Procedure. Thevenot v. Commercial Travelers Mutual Accident Association of America, 259 S.C. 235, 191 S.E. (2d) 251 (1972). Rule 44(d) provides that when a motion for summary judgment is made and supported by affidavits, the party opposing the motion (here, respondents) "may not rest upon the mere allegations or denials" of its pleadings. In construing the identical provision of Rule 56 of the Federal Rules of Civil Procedure, the United States Fifth Circuit *76 Court of Appeals held that "[the] party opposing summary judgment need not come forward in any way if the moving party has not supported his motion to the point of showing that issue is a sham." Brunswick Corp. v. Vineberg, 370 F. (2d) 605 (5th Cir.1967). It is also clear from the Advisory Committee's Notes on the 1963 Amendment to Federal Rule 56 that "where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied, even if no opposing evidentiary matter is presented."
Although respondents offered no affidavits in opposition to appellant's motion, their answer in the first defense alleged knowledge by the insured, First Citizens, of the prior lien and that the prior lien had been given pursuant to instructions by an officer of the Bank. The title insurance policy attached to and made part of the complaint under "Conditions and Stipulations" contains the following pertinent exclusions of liability:
"3(d) Defects, liens, encumbrances, adverse claims against the title as insured or other matters (1) created, suffered, assumed or agreed to by the Insured claiming loss or damage; or (2) known to the Insured Claimant at the date such Insured Claimant acquired an estate or interest by this policy and not known to the Company or not shown by the public records."
Thus, knowledge of the prior lien by the Bank, such lien allegedly being given pursuant to instructions by a Bank officer, became a material factual issue as it relates to appellant's liability for the Seven Thousand ($7,000.00) Dollars which it paid to the Bank.
Appellant offered nothing in the affidavits in support of its motion for summary judgment to answer factually one way or the other the substantial factual issue thus raised by respondents. The only averment relating to possible defenses available to respondents was in the affidavit by the Title Officer of appellant company to the effect he "investigated *77 to determine whether a defense to said action existed, but could discover none. Although the issue of knowledge of the prior lien by the Bank could have been effectively vitiated by a simple sworn denial by the Bank's vice president in his affidavit submitted in support of appellant's motion for summary judgment, no denial was made. When viewed in the context of the allegations of respondents' answer, denial of knowledge by the Bank of the prior lien seems to have been assiduously avoided in all of appellant's pleadings and moving papers in support of his motion for summary judgment.
The Advisory Committee's Notes on the 1963 Amendment to Federal Rule 56(e) [equivalent to our Circuit Court Rule 44(c)] in adding the caption "Defense Required" to subsection (2) made the following salient comment:
The amendment is not intended to derogate from the solemnity of the pleadings. Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary.
Rather than respondents' allegations being "overwhelmingly contradicted by proof available to the other party," they were left hanging unanswered although the knowledge to meet the allegations was peculiarly within appellant's grasp.
It is the duty of the court, on motion for summary judgment, not to try issues of fact, but only to determine whether there are genuine issues to be tried; and once having found that triable issues exist, must leave those issues for determination at trial. Eagle Construction Company v. Richland Construction Company, 264 S.C. 71, 212 S.E. (2d) 580 (1975). We cannot say as a matter of law that respondents' defenses, if proven, would not constitute a legal defense. We find raised in them material issues rendering summary judgment inappropriate. Hence, *78 we find no error on the denial of appellant's several motions for summary judgment.
As to the propriety of the trial judge's grant of a nonsuit in respondents' behalf, we agree with appellant's contentions it was improperly granted. The basis of a nonsuit is that there is no evidence to support an alleged cause of action. Circuit Court Rule 76.
Appellant produced a vice president of First Citizens to testify as to disbursement by the Bank of the entire Eight Thousand ($8,000.00) Dollar loan to Town and County. He introduced a ledger sheet from the Bank's books and testified that the entries indicated a loan was processed in the name of Town and County, October 26, 1970 and that the liability of that corporation increased Eight Thousand ($8,000.00) Dollars as a result of this loan. A letter from First Citizen's corporate counsel was introduced without objection in which bank counsel stated there had been disbursement to Town and County by the Bank. The Bank officer who testified regarding the ledger sheets was requested to produce deposit slips or a check showing disbursement by the Bank which he said he would find over the lunch break. He never resumed the stand and the record discloses nothing further about him or the records he was requested to produce.
Appellant's next witness, Mrs. Laura Hulst, office manager and validating officer of appellant title insurance company, testified, apparently to everyone's surprise, that the binder initially applied for by respondents, in force at the time of the alleged disbursement of funds to Town and County's account, had expired before the actual policy was issued. Mrs. Hulst testified that in line with routine procedures the title insurance company notified the Bank and asked for the status of the loan and arrangements were made to send the title policy and bill directly to the Bank.
On the basis of the foregoing testimony, respondents moved for nonsuit on the following grounds: (1) the appellant *79 had no claim against respondents under the full policy as it was issued approximately two months after the expiration of the binder, not at the request nor with consent of the respondents but through appellant's direct negotiations with the Bank; (2) appellant had no recourse under the binder as it insured only actual disbursements by the Bank and appellant had not borne the burden of proof on disbursement. Although the judge does not state his basis for granting nonsuit, we must assume it was on one or both of these grounds.
We do not find the fact that the binder expired before issuance of the policy determinative of appellant's cause of action. Appellant alleged in its complaint that the policy was issued in reliance on the respondents' certification on the binder application. This allegation was admitted in the answer. The policy itself stated it was issued in reliance on the attorney's certification. There was testimony regarding appellant's usual business practices where no application for a full policy timely follows the issuance of an interim binder. In essence, a review of the record discloses there was sufficient evidence to submit to the jury for determination the question of whether or not the policy was issued in reliance on the certification on the binder application.
As to the second ground alleging appellant had not borne the burden of proof regarding disbursement by the Bank to Town and County of the insured loan, we find there was, again, sufficient evidence to make this a factual issue for determination by the jury.
We find the trial judge erred in granting respondents' motion for an involuntary nonsuit and remand the case for a new trial.
At the trial's end, respondents moved to amend their pleadings to conform with the proof presented at trial regarding expiration of the binder prior to issuance of the *80 policy. We find no error in the trial judge's granting this motion in view of our remand.
Reversed and Remanded.
LEWIS, C.J., and LITTLEJOHN, NESS and RHODES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264616/ | 744 A.2d 822 (2000)
CITY OF PHILADELPHIA, WATER REVENUE BUREAU
v.
Steven FREMPONG, Appellant.
Commonwealth Court of Pennsylvania.
Submitted on Briefs October 29, 1999.
Decided January 21, 2000.
*823 Steven Frempong, appellant, pro se.
James J. Zwolak, Philadelphia, for appellee.
Before McGINLEY, J., KELLEY, J., and MIRARCHI, Jr., Senior Judge.
McGINLEY, Judge.
Steven Frempong (Frempong) appeals pro se from an order of the Court of Common Pleas of Philadelphia County (common pleas court) which denied his petition to vacate the dismissal of fourteen statutory appeals entered against him by the Municipal Court of Philadelphia (municipal court).[1]
In 1992, the City of Philadelphia Water Revenue Bureau (City) filed several complaints in municipal court against Frempong for unpaid water/sewer usage. After hearing, the municipal court entered judgments in favor of the City against Frempong for failure to pay the water/sewer bills on fourteen separate properties. Frempong appealed to the common pleas court. The City raised preliminary objections which were dismissed on July 8, 1993, and a trial was scheduled for August 20, 1993. After reaching a partial settlement on August 20, 1993, the parties were ordered to appear for a pre-trial status conference on December 6, 1993. Frempong failed to appear at the status conference and the common pleas court dismissed the appeals.[2] The common pleas court determined: "[t]he above appeals are dismissed due to Defendant/Appellant's [Frempong] failure to appear." Order of the Common Pleas Court, December *824 6, 1993; Reproduced Record (R.R.) at 86.
On January 5, 1994, Frempong petitioned the common pleas court to vacate the dismissals. Frempong asserted that:
2. Defendant [Frempong] was not able to attend due to sudden serious illness that forced Defendant [Frempong] to be sent home.
3. Defendant's [Frempong] inability to attend the scheduled status hearing was beyond his control.
4. Denying Defendant's [Frempong] petition will cause irreparable harm and deny Defendant [Frempong] his constitutional rights of due process.
5. However, granting this relief will cause no harm to Plaintiff [City].
Frempong's Petition to Vacate Order, January 4, 1994 at 1-2; R.R. at 62-63. On June 18, 1997, the common pleas court denied Frempong's request to vacate.[3]
The common pleas court determined:
On December 6, 1993, without notice or explanation, Appellant [Frempong] failed to appear.
....
Appellant [Frempong] claims that he was suddenly taken ill on his way to court and had to be taken home by his wife. The court found that this excuse was not credible since Appellant [Frempong] failed to explain why neither he nor his wife contacted the court on that date to advise that Appellant [Frempong] would not attend. It is noted that Appellant was scheduled to appear in court at 9:30 A.M. However, this court did not dismiss these appeals until 12:15 P.M.
....
Appellant's [Frempong] failure to raise a meritorious defense also served as a basis to deny Appellant's [Frempong] petition.
Opinion of the Common Pleas Court, June 20, 1997 at 2, 3-4; R.R. at 94, 95-96.
Frempong contends that the common pleas court abused its discretion and committed legal error when it refused to vacate the December 6, 1993, dismissals and that his constitutional rights to due process were violated.[4]
A party is under the same duty to appear at a scheduled conciliation or a pre-trial conference as to appear for trial. Anderson v. Financial Responsibility Assigned Claims Plan, 432 Pa.Super. 54, 637 A.2d 659 (1994). A pro se litigant is not absolved from complying with procedural rules. Jones v. Rudenstein, 401 Pa.Super. 400, 585 A.2d 520, appeal denied, 529 Pa. 634, 600 A.2d 954 (1991). Pa.R.C.P. No. 218 provides the consequences for failing to appear:
Rule 218. Party Not Ready When Case is Called for Trial
(a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court's own motion.
....
(c) A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.
*825 Note
The mere failure to appear for trial is a ground for the entry of a nonsuit or a judgment of non pros or the reinstatement of a compulsory arbitration award.
In 1993, our Pennsylvania Supreme Court amended Pa.R.C.P. No. 218 and removed the requirement that a court make a preliminary finding that the party did not have a satisfactory excuse for failing to appear. Subdivision (c) places the burden upon the non-appearing party to seek relief and establish a right to reopen the proceedings. Masthope Rapids Property Owners v. Ury, 687 A.2d 70 (Pa.Cmwlth. 1996).
In order to successfully petition the common pleas court to open or vacate a judgment non pros, Frempong was required to establish that the petition was timely filed, provide a reasonable explanation or legitimate excuse for the delay, and demonstrate the existence of facts to support a meritorious cause of action. Cino v. Hopewell Township, 715 A.2d 1242 (Pa. Cmwlth.1998).
The common pleas court considered Frempong's petition to be timely,[5] however Frempong presented no satisfactory reason for failing to notify the court and failed to assert facts to support a meritorious cause of action.
The common pleas court reasonably and responsibly addressed Frempong's failure to attend the mandatory status conference. This Court will only interfere to correct an abuse of discretion. Green, 684 A.2d at 1114. We find no abuse of discretion.[6]
Accordingly, we affirm.
ORDER
AND NOW, this 21 st day of January, 2000, the order of the Court of Common Pleas of Philadelphia County at the above captioned matter is affirmed.
NOTES
[1] The fourteen cases were consolidated by the common pleas court.
[2] On August 20, 1993, two of the cases were settled with a proviso that if payment was not made by a date certain, the common pleas court would enter a default judgment as to the two cases. We note that the record reflects Frempong did not comply with the terms of the August 20, 1993, consent order and that the common pleas court dismissed those appeals, as well, on December 6, 1993.
[3] The record does not reflect any reason for the delay in resolving the petition to vacate the order of December 6, 1993.
[4] A petition to the common pleas court to vacate the dismissal of an appeal for failure to attend a pre-trial conference is the equivalent of a petition to open a judgment of non pros. Green v. Harmony House North 15th Street Housing Association, Inc., 684 A.2d 1112 (Pa. Cmwlth.1996). The common pleas court's decision to affirm a judgment of non pros will be sustained unless the common pleas court committed a manifest abuse of discretion. Narducci v. Mason's Discount Store, 518 Pa. 94, 541 A.2d 323 (1988). An abuse of discretion exists where the judgment exercised by the common pleas court is manifestly unreasonable or is the result of partiality, prejudice, bias or ill will. Milan v. Department of Transportation, 153 Pa.Cmwlth. 276, 620 A.2d 721, petition for allowance of appeal denied, 535 Pa. 650, 633 A.2d 154 (1993).
[5] The City concedes that the petition was timely.
[6] Frempong also contends that his right to due process was violated. Due process requires a hearing on the merits and the right to be heard. Department of Transportation v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996). However, Frempong's failure to obtain a hearing on the merits was his own doing. See Rose v. Allentown Morning Call, 427 Pa.Super. 84, 628 A.2d 441 (1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264618/ | 240 P.3d 371 (2009)
Trina GARCIA, Plaintiff-Appellee,
v.
MEDVED CHEVROLET, INC., d/b/a Medved Cadillac, Inc., d/b/a Medved Cadillac Oldsmobile, Inc., d/b/a Medved Chevrolet-GEO, Inc., d/b/a Medved Oldsmobile, Inc., d/b/a Medved Craig Chevrolet, Inc.; Medved Chevrolet South, Inc., d/b/a Medved Hummer South; Castle Rock Ford-Mercury, Inc., d/b/a Medved Ford Lincoln Mercury, Inc., d/b/a Medved Brutyn Ford Lincoln Mercury, Inc.; Medved Buick Pontiac GMC, Inc.; Lakewood Chrysler-Plymouth, Inc., d/b/a Medved Chrysler Jeep, Inc.; Medved Chrysler Jeep Dodge South, Inc.; Medved Chrysler Jeep Dodge, Inc.; Medved Pontiac Buick GMC, Inc.; Medved Suzuki North, Inc.; Medved Suzuki South, Inc.; and John Medved, individually, Defendants-Appellants.
No. 09CA1465.
Colorado Court of Appeals, Div. A.
November 12, 2009.
*373 Hale Friesen, LLP, Daniel E. Friesen, Peter J. Krumholz, Denver, Colorado, for Plaintiff-Appellee.
Reilly Pozner LLP, Daniel M. Reilly, Larry Pozner, Anthony L. Giacomini, Molly H. Ferrer, Denver, Colorado; Holley, Albertson & Polk P.C., Dennis B. Polk, Golden, Colorado, for Defendants-Appellants.
Opinion by Judge GRAHAM.
We consider a petition for interlocutory appeal of class action certification pursuant to C.R.C.P. 23, together with the request of *374 plaintiff, Trina Garcia, on behalf of herself and all those similarly situated, to dismiss the petition as untimely. The petition seeks review of the trial court's order granting class certification in a suit against defendants, ten automobile dealerships, Medved Chevrolet, Inc.; Medved Chevrolet South, Inc.; Castle Rock Ford-Mercury, Inc.; Medved Buick Pontiac GMC, Inc.; Lakewood Chrysler-Plymouth, Inc.; Medved Chrysler Jeep Dodge South, Inc.; Medved Chrysler Jeep Dodge, Inc.; Medved Pontiac Buick GMC, Inc.; Medved Suzuki North, Inc.; and Medved Suzuki South, Inc.; and one individual, John Medved, for violation of the Colorado Consumer Protection Act (CCPA) by failing adequately to disclose the identity and cost of dealer-added aftermarket products in connection with the sale of new automobiles. We reverse and remand.
I. Timeliness of Petition Seeking Review
We first consider the timeliness of the petition. Plaintiff has filed a motion seeking to dismiss defendants' petition for review, arguing that defendants missed a ten-day interlocutory appeal deadline imposed by section 13-20-901, C.R.S.2009. We will consider the petition because we deem it to have been timely filed.
The trial court's order granting class certification was entered on June 26, 2009. Defendants' petition was filed on July 13, 2009. We conclude that the petition was filed within ten days, excluding intervening weekend days and holidays. Our conclusion of timeliness requires us to construe both section 13-20-901 and our appellate rules.
When interpreting statutes, our primary task is to give effect to the General Assembly's intent by looking to a statute's plain language, and we construe the words of the statute based upon their commonly accepted meanings. Jenkins v. Panama Canal Ry. Co., 208 P.3d 238, 241 (Colo.2009) (citing Reg'l Transp. Dist. v. Voss, 890 P.2d 663, 667 (Colo.1995)). Where the language is plain and unambiguous, we need not resort to further canons of interpretation. Frazier v. People, 90 P.3d 807, 810 (Colo.2004).
We interpret rules of procedure consistently with principles of statutory construction. People v. Stanley, 169 P.3d 258, 260 (Colo.App.2007) (citing People v. Shell, 148 P.3d 162, 178 (Colo.2006)). A reviewing court must consider the rule as a whole and interpret it so as to give consistent, harmonious, and sensible effect to all its parts. Leaffer v. Zarlengo, 44 P.3d 1072, 1078 (Colo. 2002). However, if it is impossible to reconcile all the provisions of a rule, specific provisions typically prevail over general provisions. Id. (citing § 2-4-205, C.R.S.2009). We will not follow a literal interpretation leading to an illogical or absurd result. Frazier, 90 P.3d at 811.
Section 13-20-901(1), C.R.S.2009, provides in pertinent part:
A court of appeals may, in its discretion, permit an interlocutory appeal of a district court's order that grants or denies class action certification under court rule so long as application is made ... within ten days after entry of the district court's order.
(Emphasis added.)
The plain language of the statute allows an appellate court to permit the appeal under its rules within ten days after entry of the order. The statute does not set forth a method to compute the ten-day deadline. However, our appellate rules contain a method for computing a ten-day period, allowing a grace period for intervening weekend days and holidays.
C.A.R. 1(b) provides that the taking of appeals "shall be in accordance with [the appellate court's] rules except for special proceedings in which a different time period is set by statute for the taking of an appeal."
C.A.R. 3.3 provides that interlocutory appeals of the grant or denial of a class action under C.R.C.P. 23(f) "may be allowed pursuant to the procedures set forth in that rule and C.R.S. § 13-20-[901]." Those procedures specify that the application shall be permitted "under court rule." C.A.R. 26(a) specifies that in calculating deadlines, the date of the order being appealed shall not be included, and for any period less than eleven days, "intermediate Saturdays, Sundays and *375 legal holidays shall be excluded in the computation."
We conclude that the General Assembly intended by its plain language for the appellate courts to apply both their rules of procedure and the permission granted in section 13-20-901(1) in considering interlocutory appeals. Thus, we must apply C.A.R. 26(a) together with the grant afforded under the statute to determine when the ten-day deadline occurs.
We are also persuaded that C.A.R. 26(a) should be applied here by Outcelt v. Schuck, 961 P.2d 1077, 1081 (Colo.1998), which similarly applied C.A.R. 26(a) to section 1-40-107(2), C.R.S.2009. That statute prescribes a procedure for appealing a title board's review but does not say how to measure the time limit. The court noted that by its own terms C.A.R. 26(a) is used to measure periods of time prescribed by statute. Outcelt, 961 P.2d at 1081.
We thus conclude that the phrase "under court rule" in section 13-20-901(1) applies not just to C.R.C.P. 23 but also to court rules which prescribe the method of computing the time limit to appeal the grant or denial of class certification.
Our conclusion is not altered by section 2-4-108(2), C.R.S.2009, a statute which neither party has cited to us. That statute provides instructions on measuring statutory time periods and directs that in computing a period of days, the first day is excluded and the last day is included unless it is a weekday or a holiday. The section is silent concerning intervening holidays and weekend days. We therefore read its provisions in conjunction with the provisions of C.A.R. 26(a), the court rule which bears directly upon measuring time prescribed by statute.
Applying C.A.R. 26(a) to the question at hand, we determine that the appeal was filed in time. We note that June 26, 2009 fell on a Friday. Giving credit for intervening Saturdays and Sundays, as well as the Independence Day holiday during which court offices were closed, defendants filed their petition seeking review on the tenth business day after June 26, which was July 13, 2009. We therefore determine that the petition seeking review was timely.
II. Exercising Discretion to Grant Interlocutory Review
Initially, to determine whether to grant the petition, it is necessary to apply the five-factor test prescribed in Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir.2000), and enunciated by a division of this court in Clark v. Farmers Insurance Exchange, 117 P.3d 26, 29 (Colo.App.2004) (relying upon a five-factor test prescribed in Prado-Steiman to determine whether we should exercise our discretion to hear the interlocutory appeal). We conclude that we should review the class certification.
The first factor is known as the "death knell" because it asks whether the trial court's order would, on the one hand, provide an impetus for the plaintiff to cease seeking relief because individual claims are relatively small, or, on the other hand, provide an "irresistible pressure" to settle because the stakes are so high. Clark, 117 P.3d at 29. Here, in our view, the certification of two classes involving the sale of several thousand automobiles, combined with the treble damages and attorney fee provisions of the CCPA, arguably produces an irresistible pressure upon defendants to settle.
Second, we must evaluate whether the appellant makes a threshold showing that the class certification likely constitutes an abuse of discretion. Id. Here, we consider this factor in conjunction with the third: "whether allowing the appeal will permit resolution of an unsettled legal issue." Id.
In considering this appeal, we are faced squarely with a question not yet considered by any Colorado appellate court. We are asked to determine whether a theory of presumed reliance on material omissions in a consumer protection claim will satisfy the requirement to show a classwide theory of causation and injury sufficient to satisfy the requirements of C.R.C.P. 23. Resolution of these second and third factors indicates, on balance, that we should review the certification.
*376 Applying the fourth and fifth factors is less helpful to our analysis. The fourth factor directs that we should consider the nature of the litigation in the trial court and whether the scope of the classes or the dynamics of the litigation are likely to change as new facts are developed. Id. Defendants urge that the trial court should consider the particular facts of each vehicle sale and that only by doing so can the elements of reliance and damage be determined. Plaintiff contends that the case rises or falls on the basis of uniform written documents that memorialized each sale. As shall be discussed in this ruling, we believe that the case will benefit from further development of the facts regarding individual sales.
Finally, the fifth factor asks us to consider the "likelihood that future events could make immediate appellate review more or less appropriate." Id. We have not been made aware of any future events that might affect the appropriateness of our review.
We therefore conclude that immediate review of the class certification is appropriate.
III. Review of Class Certification
Here, plaintiff alleged that she and the class members were uniformly provided automobile sales documents that violated the CCPA because those documents did not disclose the price of various dealer-added products. She contends that customers either paid for but did not receive such products or received the products but were unaware of the fact that their cost was added to the sales price of the automobile.
The trial court did not conduct an evidentiary hearing in reaching its conclusion. However, it had numerous exhibits which reflected most, if not all, of the transaction documents used by defendants in the intake, processing, and sales of their automobiles, as well as excerpts of six C.R.C.P. 30(b)(6) deposition transcripts containing the sworn testimony of defendants' employees and managers. Those deponents described in detail the procedures employed by the various dealerships during the approximate period from 2004 to 2006. Based upon that record testimony and the numerous exhibits, it was apparent to the trial court that the custom and practice of the defendant dealerships was to install or "preload" dealer-added, aftermarket products on "the largest majority of cars." These aftermarket products consisted primarily of prefabricated adhesive pin striping, some painted pin striping, and clear film protective masks referred to as "clearbras." As a general rule, for automobiles other than those traded from another dealer, there was no specific identification on any sales document breaking down the costs of the preloads from the reported manufacturer's suggested retail price (MSRP). Indeed, one employee testified that in his experience the preloads or the charges for them were never identified on the buyer's order or the installment sales contract. Other testimony revealed that an addendum sticker containing the name and price of any preloads was affixed to new car windows close to the manufacturer's window sticker (Monroney Sticker), which contained the automobile's vehicle identification number, estimated mileage, features, and MSRP. The Monroney Sticker was not modified to reflect the cost of the preloads. Defendants contend that other sales documents incorporate by reference the window stickers displayed on the automobiles.
At all times pertinent, the addendum sticker was attached in the dealers' prep departments, while the preloads themselves were installed by the service department. The practice was to create a repair order which directed a technician to install the preloads, but the repair order was not shown to the buyer. In cases where painted pin striping was applied, a third-party vendor was used to provide the service at the dealership. A purchase order was used to order vendor-supplied service. Both repair orders and purchase orders were tracked through use of a computer program known as the Reynolds and Reynolds system.
Plaintiff alleges that she financed the purchase of a new automobile from one of the defendant dealers in April 2006. She claims that a retail charge of $548 for two dealer-added aftermarket products was added to the price of her vehicle despite the fact that the products were never installed. She asserts that she was not provided with a complete *377 written contract setting forth all the terms and conditions of the sale and that the receipts and documents she did receive did not disclose the nature and cost of the dealer-added products.
The trial court certified two classes, with plaintiff designated as the class representative for each. The first class (Class I) includes persons who purchased a vehicle from defendants between April 8, 2003 and June 26, 2009 and were charged for dealer-added products that were never installed. The second class (Class II) consists of persons who purchased a vehicle between April 8, 2003 and June 26, 2009 and were charged for dealer-added products that were installed but not disclosed in writing.
Defendants oppose the class certification on several grounds. They contend that the trial court failed to follow the guidelines expressed in Jackson v. Unocal Corp., 231 P.3d 12, 18 (Colo.App. 2009), by failing to apply a burden of proof based upon a preponderance of the evidence and by failing to conduct a rigorous analysis of the evidence. Had the trial court applied that burden, defendants contend, it would have determined that there was no classwide method to establish causation and injury. Further, defendants urge that individualized findings of fact are necessary to determine whether a particular consumer falls within a class definition. Because each sale was accompanied by face-to-face negotiations between sales persons and customers, in defendants' view there are no common issues which predominate over individual issues. Thus, they argue that plaintiff failed to establish numerosity, predominance, superiority, or typicality of claims.
Class actions "eliminate the need for repetitious filing of many separate lawsuits involving the interests of large numbers of persons and common issues of law or fact." Mountain States Tel. & Tel. Co. v. Dist. Court, 778 P.2d 667, 671 (Colo.1989). Class actions provide an economical means of disposing of multiple claims in one lawsuit. Id. C.R.C.P. 23 is the rule of procedure dealing with class actions and it "should be liberally construed in light of its policy of favoring the maintenance of class actions." Farmers Ins. Exch. v. Benzing, 206 P.3d 812, 818 (Colo. 2009).
The four class action requirements of C.R.C.P. 23(a) are (1) the class is so numerous that joinder of all its members is not practical, (2) questions of law or fact are common among the members, (3) the claims or defenses of the class representative are typical of those of the class members, and (4) the class representative fairly and adequately represents the interests of the class members. C.R.C.P. 23(a); Benzing, 206 P.3d at 818.
In addition, a successful class action must fit within one of the three subsections of C.R.C.P. 23(b). As pertinent here, plaintiff sought certification under C.R.C.P. 23(b)(3). Certification is appropriate under C.R.C.P. 23(b)(3) if (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members and (2) a class action is superior to other methods for the fair and efficient adjudication of the controversy. Benzing, 206 P.3d at 818.
A court must find by a preponderance of the evidence that the prerequisites of C.R.C.P. 23(a) and (b) have been met. Jackson, 231 P.3d at 19. A court must also accept as true the allegations in support of certification. Benzing, 206 P.3d at 818.
The requirement of numerosity means that a class must be large enough to make joinder of all its members impractical. LaBerenz v. Am. Family Mut. Ins. Co., 181 P.3d 328, 334 (Colo.App.2007). Although the trial court may not speculate about the size of any class, it may make "common sense" assumptions to support its finding that joinder would be impractical. Id. at 334-35. Further, there should be a method which allows the court to ascertain whether a person fits within a class, although difficulty in identifying class members will not alone defeat certification. Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 359 (D.Colo.1999).
Establishing commonality does not necessarily mean that every issue must be common to the class. If the claims of the class representative and the class members *378 are based upon the same legal theory, commonality is established. Id.; see also Cook v. Rockwell Int'l Corp., 181 F.R.D. 473, 480 (D.Colo.1998).
A successful prospective class representative must also establish typicality, meaning that there is identical unlawful conduct which has been directed at both the class representative and the proposed class members irrespective of some variation in the facts that underlie the individual claims. LaBerenz, 181 P.3d at 338.
To establish that questions of law or fact common to the class predominate over questions of law or fact that affect only individual members, a plaintiff must advance "a theory by which to prove or disprove `an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class member's individual position.'" Benzing, 206 P.3d at 820 (quoting Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569, 580 (D.Minn.1995)).
We accord the trial court discretion when reviewing its decision whether to certify a class action, and we will not disturb its conclusion unless it is clearly erroneous and an abuse of that discretion. Id. at 817. "An abuse of discretion occurs where the trial court's decision is manifestly arbitrary, unreasonable, or unfair, or when the trial court applies incorrect legal standards." Medina v. Conseco Annuity Assurance Co., 121 P.3d 345, 347 (Colo.App.2005).
Defendants attack the class certification on various grounds, several of which share a common theme. They contend that there is no classwide method of establishing causation and injury. Without proof of those elements, the class representative cannot establish numerosity, commonality or typicality. One aspect of this argument concerns their assertion that there was no individualized assessment of the varying face-to-face negotiations between members of the class and sales representatives. Only by analyzing these negotiations, argue defendants, can plaintiff establish that her class members suffered injury as a direct and proximate result of the alleged CCPA violations in connection with the disclosure and sale of dealer-added products. They contend that only by looking at individual sales negotiations and the price paid in any transaction could the court conclude that the buyer suffered an economic injury. Thus, the argument goes, the trial court was required to engage in the type of fact-intensive inquiries demanded by Jackson, and in failing to do so, the trial court ignored defendants' substantial proof that certification was impossible. Defendants cite Benzing to support their argument that face-to-face transactions involving individual buyers preclude a classwide method of proving injury. In defendants' view, without a fact-intensive inquiry into the individual transactions, and absent a classwide method of proving causation and injury, plaintiff cannot establish the numerosity, commonality, and typicality requirements of C.R.C.P. 23(a).
In Benzing, there were face-to-face transactions between insurance agents and insureds in which uniform omissions of material information concerning UM/UIM policies allegedly occurred. The class representative alleged direct reliance on the material omissions based upon a theory that positive proof of reliance was not a prerequisite where the defendant made material omissions in connection with the sale of policies. A theory similar to this was first discussed in Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). There, the defendants solicited and accepted standing orders of stock and were active in encouraging a market for that stock. The defendants planned to induce certain members of an Indian tribe to dispose of their shares without disclosing facts necessary to make an informed decision to sell. Relying upon the philosophy of full disclosure embodied in Section 10 of the Securities Exchange Act of 1934, 15 U.S.C. § 78, and Rule 10b-5 promulgated thereunder, the Court concluded that it was not necessary for the tribe members to prove active reliance as a prerequisite for their securities fraud claim. Id. at 153-54, 92 S.Ct. 1456.
The class representatives in Benzing urged the court to adopt a theory which presumed reliance and causation akin to the theory adopted in Affiliated Ute. However, Affiliated Ute relied in part upon the fact *379 that the defendants were market makers and brokers. Id.
Benzing rejected the notion of an efficient market in the context of selling individual insurance policies and raised doubt as to whether the theory used in Affiliated Ute would have application to the facts before it. Benzing, 206 P.3d at 821.
However, the court specifically reserved the question whether an inference of causation or reliance can be drawn from uniform misrepresentations or omissions in common law fraud claims or consumer protection claims, if the question were to be properly preserved. Id. at 823-24.
We hold that this argument, articulated for the first time in briefs to this court and not considered by the court of appeals, was insufficiently raised in the trial court and therefore we reach no opinion as to the merits of this argument. We note that there are arguments in favor of and against applying such a presumption or inference in order to maintain a consumer protection or common law fraud class action, and jurisdictions addressing the question have reached different results.
Id. (citations omitted).
A. The Trial Court's Conclusion of Predominance
Here, we are presented with the question reserved by Benzing: whether the allegations of materially deceptive omissions in the context of an alleged violation of the CCPA satisfy a classwide theory of causation and injury. Because the requirement of predominance is met where a class representative advances a theory of proof on a classwide basis, individual proof of individual transactions is unnecessary. However, here, to advance a theory of causation and injury, plaintiffand apparently the trial court considered that uniformly deceptive sales documents provided a theory of proof on a simultaneous classwide basis.
The trial court explained that it was "persuaded that Plaintiff does in fact allege a classwide theory of liability and causation." In providing this conclusion of law, the court did not make any specific finding of fact, but instead analyzed the claims in terms of the necessary elements of proof and how plaintiff alleged a classwide basis of injury and causation:
To establish a cause of action under the CCPA, a plaintiff must prove ... [in addition to other elements] ... the plaintiff suffered an injury in fact to a legally protected interest; and the challenged practice caused the plaintiff's injury....
. . . .
The Court is persuaded that Plaintiff does in fact allege a class-wide theory of liability and causation, with common issues of law and fact that predominate. The CCPA prohibits false and misleading statements and requires a clear and unambiguous written order, contract, or receipt disclosing all the terms of the sale. C.R.S. § 6-1-105(1)(l) & (m). [Plaintiff] contends that Defendants have violated the CCPA by not disclosing dealer-added products that were installed and/or charging consumers for dealer-added products that were never installed. [Plaintiff] is not relying on verbal face-to-face omissions or statements, but rather standard documents and records utilized by Defendants in selling vehicles. In an action for deceit based on fraud, reliance may be proved by circumstantial evidence. Elk River Assocs. v. Huskin, 691 P.2d 1148, 1154 (Colo.App. 1984); Lurvey v. Phil Long Ford, Inc., [37 Colo.App. 11,] 541 P.2d 114, 116 (Colo.App. 1975). Thus the alleged violations of the CCPA stem from the same alleged deceptive conduct, that is, the failure to make adequate written disclosures of dealer-added products.
(Emphasis added.)
Thus, the trial court concluded that the issues of causation and injury predominated based upon the notion that "reliance may be proved by circumstantial evidence" and the factual conclusion that "violations of the CCPA stem from the same alleged deceptive conduct." We conclude that such ruling was error because there is no precedent for the theory in Colorado and because application of a fraud on the market theory to automobile sales is not feasible.
*380 B. Presumed Reliance
We reject the notion that there is any Colorado precedent for a theory of presumed reliance. There is a distinction between proving reliance by circumstantial evidence and presuming reliance on a classwide basis for purposes of determining whether individual sales negotiations are subsumed under a classwide theory of presumed reliance and, therefore, injury. Neither Elk River nor Lurvey stands for the proposition that an inference of causation or reliance is established where there is a material uniform misrepresentation or omission in the context of claims under the CCPA.
We are unable to find support for a presumed reliance doctrine in Colorado. Benzing must have recognized that the theory had not been adopted in Colorado when it specifically deferred consideration of the issue and noted that there were cases for and against applying a presumption of reliance in consumer protection or common law fraud class actions. None of the cases cited by Benzing to support its observation was a Colorado case.
To the extent that plaintiff contends that the presumed reliance theory is simply an application of the "fraud on the market theory" to other, similar statutory offenses, we reject the contention. The "fraud on the market theory" presumes that there is reliance by investors in securities transactions where the company's shares are traded on an efficient market. Basic Inc. v. Levinson, 485 U.S. 224, 241-47, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). It assumes that even though there were no direct representations made to investors, the market forces prevalent in an efficient market applied through purchases and sales by market professionals who rely upon public information and the established market price of the stock create a presumption of indirect reliance by the investors. Id.; see also Benzing, 206 P.3d at 821. Basic explained that the doctrine is unique to the "modern securities markets" and must be distinguished from traditional fraud claims in other contexts. Basic, 485 U.S. at 243-44, 108 S.Ct. 978. "The modern securities markets, literally involving millions of shares changing hands daily, differ from the face-to-face transactions contemplated by early fraud cases, and our understanding of [the Securities Exchange Act's fraud] Rule 10b-5's reliance requirement must encompass these differences." Id. (footnote omitted). The readily ascertainable market price, recorded daily, provides access to the prices paid by the public on any given day. This stands in stark contrast to the individual prices negotiated by car buyers, some of which may pay hundreds less than other buyers for an identically equipped automobile.
We are unable to conclude that any similar theory would be justified in a CCPA claim where a car buyer claims that there were fraudulent omissions on window stickers and that, but for those omissions, the buyer would have paid a lower price or, perhaps, would not have purchased the automobile. In Affiliated Ute, and subsequent securities fraud cases, there is the added factor of a fiduciary duty being owed to the investors. In such case, it is not difficult to presume that investors are justified in relying upon a fiduciary's representation. Here, in contrast, there is an arm's length transaction between an automobile seller and buyer. No fiduciary duty is owed to the buyers.
Although no Colorado cases have adopted a presumed reliance theory, one Colorado court rejected a fraud-created-the-market theory in a municipal bonds case. See Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1104, 1106 (Colo.1995) ("Because it unnecessarily addressed the doctrine of fraud-created-the-market, we disapprove of the court of appeals' holding that the doctrine is imported into Colorado law.").
Federal cases, applying Colorado law, have rejected efforts to extend the fraud on the market theory to common law and statutory claims. See Schwartz v. Celestial Seasonings, Inc., 185 F.R.D. 313, 317-18 (D.Colo. 1999) (the plaintiffs are required to "prove reliance to succeed in their Colorado law and common law claims"); In re Synergen, Inc. Sec. Litig., 154 F.R.D. 265, 267 (D.Colo.1994) ("[n]o Colorado court has applied the fraud-on-the market theory to a negligent misrepresentation claim").
*381 We are also persuaded by a variety of state cases that have similarly rejected the invitation to apply a fraud on the market theory to presume reliance and causation in common law fraud or statutory deceit lawsuits. See, e.g., Mirkin v. Wasserman, 5 Cal.4th 1082, 23 Cal.Rptr.2d 101, 858 P.2d 568, 579-80 (1993) (doctrine cannot be applied to common law deceit and negligent misrepresentation claims in a securities action); Gaffin v. Teledyne, Inc., 611 A.2d 467, 474-75 (Del.1992) (refusing to apply theory to state law fraud claims); White v. BDO Seidman, LLP, 249 Ga.App. 668, 549 S.E.2d 490, 493 (2001) (presumption of reliance inapplicable to negligent misrepresentation claim); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 161-64 (2002) (a presumption of reliance theory would not be applied to consumer protection act); Kaufman v. i-Stat Corp., 165 N.J. 94, 754 A.2d 1188, 1196 (2000) (no presumption of reliance to negligent misrepresentation claim); Toy v. Metro. Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 202 (2007) (doctrine not applied to statutory consumer protection claim).
We recognize that there are cases that have applied a presumption of reliance theory to establish predominance. See, e.g., Weinberg v. Hertz Corp., 116 A.D.2d 1, 499 N.Y.S.2d 693, 696 (N.Y.App.Div.1986) (if representations are material, certification was warranted and reliance could be presumed subject to proof at trial), aff'd, 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 (1987); Cope v. Metro. Life Ins. Co., 82 Ohio St.3d 426, 696 N.E.2d 1001, 1008 (1998) (predominance requirement satisfied in class certification request and allowing inference of reliance where there was nondisclosure of material fact). However, we conclude that the cases rejecting the theory are the better reasoned because they recognize that there are special circumstances present in securities fraud cases that are not present in common law fraud actions.
Also, application of such a doctrine to the classes certified here would require a more rigorous analysis of the face-to-face purchase transactions. Class I members cannot establish a classwide theory of injury because the class might include those persons who paid a price lower than the MSRP less the value of the dealer-added, but omitted products.
The application of such a doctrine also fails with respect to Class II members who purchased automobiles with after-market dealer-added products installed. Here, we are unable to discern how a uniform theory of CCPA violations translates to uniform theory of injury. It is not difficult to surmise that some members of Class II were fully aware of the products, desired the products, and struck a bargain in anticipation of receiving the products. It is even possible that a particular price paid for a given automobile was so far below the MSRP that there was no effective charge for manufacturer-installed options, let alone dealer-added products. Plaintiff contends causation is established simply because the customers purchased automobiles. But their injuries, to the extent there were injuries, would not necessarily be based on the final purchase price of the car in all circumstances. Nothing in the complaint or the record suggests that all members of Class II sought rescission of the purchase price paid. Instead, it appears that the applicable theory of damages would necessarily require a class member to prove that but for the alleged deceit, he or she would not have purchased dealer-added products. Thus, the price paid by each customer is an important and predominant component of injury. We conclude that with respect to Class II members, the trial court should have engaged in a "rigorous analysis" of the merits of a classwide theory of liability to determine whether there were common questions of fact and law applicable to them. See Jackson, 231 P.3d at 25-26. Further, defendants assert affirmatively that evidence of face-to-face negotiations will establish their compliance with the CCPA. The trial court should also have rigorously analyzed whether such individualized evidence will affect the question of predominance. See id. at 25-26. Failing to do so was error.
Based upon our conclusion that there was no classwide theory of injury, plaintiff could not serve as a representative of Class II. Indeed, it is apparent from the trial court's order of certification that the *382 court must have relied on a perceived classwide theory of injury in order to conclude that plaintiff would adequately represent both Class I and Class II. However, the trial court did not articulate any facts or legal basis to support such a conclusion. Accordingly, we hold that the trial court erred in concluding that plaintiff was an adequate class representative for Class II.
We therefore determine that it was error to certify the case as a class action, and we remand the case for further proceedings consistent with this opinion. If the trial court revisits the certification issue on remand, it should consider and apply the preponderance burden of proof.
The order is reversed, and the case is remanded for further proceedings consistent with this opinion.
Judge FURMAN and Judge BOORAS concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264625/ | 240 P.3d 67 (2010)
237 Or. App. 468
FRED SHEARER & SONS, INC., an Oregon corporation, Plaintiff-Respondent,
v.
GEMINI INSURANCE COMPANY, a Delaware corporation, Defendant-Appellant.
Gemini Insurance Company, a Delaware corporation, Counterclaim Plaintiff,
v.
Fred Shearer & Sons, Inc., an Oregon corporation, Counterclaim Defendant.
0507-07126; A136818 (Control), A140007.
Court of Appeals of Oregon.
Argued and Submitted February 3, 2010.
Decided September 29, 2010.
*69 Todd S. Baran argued the cause and filed the briefs for appellant.
John L. Langslet, Portland, argued the cause for respondent. With him on the brief were Joan L. Volpert and Martin, Bischoff, Templeton, Langslet & Hoffman LLP.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
SCHUMAN, J.
Defendant Gemini Insurance Company insured TransMineral USA, a distributor of a stucco product. Plaintiff Fred Shearer & Sons, Inc. (Shearer) installed that product on the exterior of a residence. The product allegedly failed, and the property owners sued their general contractor who, in turn, sued Shearer and TransMineral. Shearer then tendered the defense of that underlying action to Gemini, on the theory that the policy issued by Gemini to TransMineral contained an endorsement that also required Gemini to cover "vendors" of TransMineral products, and that Shearer was such an entity. Gemini rejected the tender, and Shearer brought this action seeking, among other relief, a declaration that Gemini owed Shearer a duty of defense. The trial court granted Shearer's motion for partial summary judgment to that effect, and, after a trial on stipulated facts, entered a limited judgment *70 against Gemini, which it now appeals. We affirm.[1]
Although the facts themselves are undisputed, there is a question in this case as to which of those facts properly may be considered when determining the duty to defend. We discuss that issue below and resolve it in favor of the more inclusive position. 237 Or.App. at 474-78, 240 P.3d at 72-74. The following recitation reflects that determination.
In May 2000, Walsh Construction Co. entered into a contract with the Evenstads to perform various repairs to their residence. Walsh then subcontracted with Shearer to apply stucco to the exterior of the residence, which Shearer did. Sometime after the repairs were completed, the Evenstads discovered cracking in the stucco, and they eventually filed an action against various defendants, including their general contractor, Walsh. The factual allegations in that complaint included the following:
"After the repairs were completed, the [Evenstads] began to notice cracking of the stucco and were told by * * * Walsh and Shearer that such cracking was normal and to be expected. Plaintiffs became more concerned as the cracking continued and they began to notice leaking and mold[.] * * *.
"* * * * *
"While the plaintiffs have not yet obtained bids for performing the repairs that will be necessary, their preliminary estimate is that the total costs of the design and repair work will be approximately $1.5 million. The [Evenstads] will amend this Complaint to allege the specific items and amounts of the damages when they become known."
(Paragraph numbering omitted.)
The Evenstads further alleged that Walsh had breached its construction contract in a number of specifics, including:
"(a) Failing to mix and apply the stucco products and cladding system in a professional and workmanlike manner;
"(b) Failing to mix and apply the stucco products and cladding system in accordance with industry standards;
"(c) Failing to mix and apply the stucco products and cladding system according to the stucco manufacturer's instructions and recommendations;
"(d) Failing to properly mix the lime plaster compounds to meet the appropriate density for the stucco;
"(e) Failing to supply plaintiffs with a stucco product and cladding system that was free of defects and that met industry standards;
"(f) Applying the cement plaster, lime plaster and/or limestone mortar that make up the stucco cladding during periods when the ambient temperature was greater than 77°F without follow-up moist-curing of the basecoat during the cure process;
"* * * * *
"(h) Applying a stucco product that did not contain a proper mix of binder agents;
"(i) Applying a stucco product that was represented to contain only lime-based materials, but that in fact contained non-lime based materials;
"(j) Applying a defective stucco product and cladding system * * *."
In response to the complaint, Walsh filed its own third-party complaint against Shearer, its subcontractor, and TransMineral. Walsh alleged that Shearer "was responsible for all aspects of recommending, selecting, and applying stucco products to the Residence," and was therefore liable to Walsh on a theory of indemnity or contribution. As for TransMineral, Walsh alleged that the company was "in the business of distributing limestone products" and was negligent "in designing and manufacturing the stucco product used on the Residence * * *."
After receiving the third-party complaint, Shearer tendered the defense of the claims to Gemini, which, beginning in 2000, had insured TransMineral under a general liability policy. Shearer claimed that it, too, was covered by TransMineral's policy through *71 what is known as a "vendors endorsement." The endorsement at issue (titled "Additional Insured Vendors") provided coverage to "all vendors of [TransMineral]," but "only with respect to `bodily injury' or `property damage' arising out of `your products' * * * which are distributed or sold in the regular course of the vendor's business," subject to certain exclusions.
Shearer, at all relevant times, had been operating under an "Exclusive Applicator Agreement" with TransMineral. The agreement provided that "TransMineral desires to grant to the Exclusive Applicator [Shearer] the exclusive right to distribute Lé Decor Products [stucco] and all the other products [TransMineral] distributes." Nonetheless, Gemini rejected Shearer's tender, on the ground that, "[i]f there is any fault in this matter, it will bear a relationship to the negligent `mixing' of the product and/or the application thereof."[2]
Its tender rejected, Shearer filed this action against Gemini seeking a declaration that, under the vendors endorsement, Gemini owed a duty to defend Shearer in the underlying litigation. Shearer then moved for partial summary judgment on that question, and the trial court granted the motion. Additional issues regarding the amount of the defense obligation were tried to the court, and the court again ruled in Shearer's favor. The rulings were reduced to a limited judgment, which Gemini now appeals. That judgment provides, in part:
"1. Gemini owes a duty to defend Shearer in the Evenstad Residence Case, which duty accrued on November 4, 2004;
"* * * * *
"3. Gemini is responsible for fifty percent (50%) of Shearer's defense costs in * * * the Evenstad Residence [case] * * * from the date[ ] specified above;
"* * * * *
"5. Shearer's billed defense costs * * * were `incurred' and are recoverable[.]"
In its first assignment of error, Gemini challenges the trial court's ruling on Shearer's motion for partial summary judgment regarding the duty to defend. The trial court erred in granting that motion, Gemini argues, for either of two reasons: One, Shearer is not an insured for purposes of the vendors endorsement to TransMineral's policy; and, two, even assuming that Shearer is an insured, certain exclusions in the policy eliminate any coverage that Shearer might otherwise have had.[3]
We begin with the question whether Shearer is an "insured" under TransMineral's policy. The vendors endorsement to that policy, as explained above, extends coverage to "any person or organization (referred to below as vendor)" that distributes or sells TransMineral's products in the "regular course of [that person or organization's] business." 237 Or.App. at 472-73, 240 P.3d at 70-71. For its part, Gemini does not appear to contest the fact that Shearer, pursuant to its Exclusive Applicator Agreement with TransMineral, was a "distributor" of TransMineral products, including the Lé Decor product used on the Evenstad residence. Rather, Gemini makes a more technical argument: that it is impossible to tell from the pleadings in the underlying action or the policy language that Shearer sold or distributed the stucco product in the ordinary course of business. In Gemini's view, the four corners of those documents that is, the pleadings and the insurance policy exclusively govern whether Gemini owes any duty to defend, and "[n]othing in [Walsh's] allegations *72 expressly or impliedly connotes that Shearer `distributed' or `sold' the TransMineral products."[4] In light of that deficiency in the underlying pleadings, Gemini argues, the trial court erred in granting summary judgment in favor of Shearer.
Meanwhile, Shearer appears to accept Gemini's statement of the "four-corners rule" but argues that the pleadings do, in fact, demonstrate that Shearer was an "insured."[5] Shearer's concession regarding the scope of our review, however, is not well founded and for the reasons that follow, we choose not to accept it. McLauchlan and McLauchlan, 227 Or.App. 476, 491, 206 P.3d 622, rev. den., 346 Or. 363, 213 P.3d 577 (2009) (where this court "do[es] not agree with the parties' understanding of the law," it is not bound to accept a concession regarding a legal conclusion) (citing State v. Bea, 318 Or. 220, 224, 864 P.2d 854 (1993)).
The seminal case regarding the duty to defend under Oregon law is Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (1994). In an oft-quoted passage, the court explained:
"Whether an insurer has a duty to defend an action against its insured depends on two documents: the complaint and the insurance policy. Oakridge Comm. Ambulance v. U.S. Fidelity, 278 Or. 21, 24, 563 P.2d 164 (1977). An insurer has a duty to defend an action against its insured if the claim against the insured stated in the complaint could, without amendment, impose liability for conduct covered by the policy. Nielsen v. St. Paul Companies, 283 Or. 277, 280, 583 P.2d 545 (1978); Oakridge Comm. Ambulance v. U.S. Fidelity, supra, 278 Or. at 24 [563 P.2d 164]; Ferguson v. Birmingham Fire Ins., 254 Or. 496, 507, 460 P.2d 342 (1969).
"In evaluating whether an insurer has a duty to defend, the court looks only at the facts alleged in the complaint to determine whether they provide a basis for recovery that could be covered by the policy:
"`If the facts alleged in the complaint against the insured do not fall within the coverage of the policy, the insurer should not have the obligation to defend. If a contrary rule were adopted, requiring the insurer to take note of facts other than those alleged, the insurer frequently would be required to speculate upon whether the facts alleged could be proved. We do not think this is a reasonable interpretation of the bargain to defend. It is more reasonable to assume that the parties bargained for the insurer's participation in the lawsuit only if the action brought by the third party, if successful, would impose liability upon the insurer to indemnify the insured.' Isenhart v. General Casualty Co., 233 Or. 49, 54, 377 P.2d 26 (1962).
"An insurer should be able to determine from the face of the complaint whether to accept or reject the tender of the defense of the action. Ferguson v. Birmingham Fire Ins., supra, 254 Or. at 505-06 [460 P.2d 342]."
Ledford, 319 Or. at 399-400, 877 P.2d 80 (emphasis added).
Certain parts of that passage, read in isolation, support Gemini's contention that the duty to defend is determined solely by facts alleged in the underlying complaint. However, it is important to understand what was at issue in Ledford and what was not. The question in Ledford was whether the complaint could "impose liability for conduct covered by the policy." 319 Or. at 400, 877 P.2d 80 (emphasis added). The court was not concerned with the preliminary question: whether the party seeking coverage was actually *73 an insured within the meaning of the policy. Rather, Ledford and, to our knowledge, every other case in which Oregon appellate courts have held that their inquiry was limited to the facts of the underlying complaint presumed the existence of an "insured" within the meaning of the policy. See, e.g., Nielsen, 283 Or. at 280, 583 P.2d 545; Oakridge Comm. Ambulance, 278 Or. at 24, 563 P.2d 164; Ferguson, 254 Or. at 507, 460 P.2d 342; Isenhart, 233 Or. at 54, 377 P.2d 26.[6]
Gemini (and Shearer, by way of concession) would have us apply the same four-corners rule to both inquiries, looking exclusively to the facts of the underlying complaint to determine (1) whether Shearer was an "insured" within the meaning of the policy and (2) if so, whether the alleged conduct falls within the scope of the coverage. But those inquiries, in our view, are analytically distinct,[7] and the four-corners rule is not easily justified in the case of the former.
When the question is whether the insured is being held liable for conduct that falls within the scope of a policy, it makes sense to look exclusively to the underlying complaint. That complaint sets the boundaries of the insured's liability, and, as the court reasoned in Isenhart, "[i]f a contrary rule were adopted, requiring the insurer to take note of facts other than those alleged, the insurer frequently would be required to speculate upon whether the facts alleged could be proved." 233 Or. at 54, 377 P.2d 26.
The same cannot be said with respect to whether a party seeking coverage is an "insured." The facts relevant to an insured's relationship with its insurer may or may not be relevant to the merits of the plaintiff's case in the underlying litigation. The plaintiff in the underlying case is required to plead facts that establish the defendant's liability; the plaintiff often is not required to establish the nature of the defendant's relationship to some other party or to an insurance company in order to prove a claim. In this case, for example, the Evenstads had no reason to allege that Shearer sold or distributed TransMineral's products in the ordinary course of its business; nor did Walsh need to allege that fact in order to make out its third-party claim against Shearer.
For that reason, we do not see the logic in requiring Shearer to demonstrate that the underlying complaints establish the relationship between TransMineral and Shearer, or, consequently, that Shearer is Gemini's "insured" within the meaning of the policy. Accord Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir.2004) (recognizing an exception to the general rule barring extrinsic evidence "when it is initially impossible to discern whether coverage is potentially implicated and when the extrinsic evidence goes solely to a fundamental issue of coverage which does not overlap with the merits of or engage the truth or falsity of any facts alleged in the underlying case") (emphasis omitted); Burd v. Sussex Mutual Insurance Company, 56 N.J. 383, 388, 267 A.2d 7 (1970) ("[W]hen coverage * * * depends upon a factual issue which will not be resolved by the trial of the third party's suit against the insured, the duty to defend may depend upon the actual facts and not upon the allegations in the complaint. So, for example, if a policy covered a Ford but not a Chevrolet also owned by the insured, * * * [t]he identity of the car, upon which coverage depends, would be irrelevant to the trial of the negligence action.").[8]*74 Accordingly, we reject Gemini's argument that the trial court erred in entering judgment because the underlying pleadings did not affirmatively demonstrate that Shearer was an insured for purposes of the vendors endorsement.[9]
We turn, then, to Gemini's alternative contention that certain policy exclusions operate to defeat coverage, thereby eliminating its duty to defend. Gemini first contends that the policy excludes coverage for "work product" that is, damage to the stucco itself. According to Gemini, the Evenstads alleged only that the stucco on their home cracked and leaked; they did not allege, as the policy requires, some damage to their home "beyond the cost of replacing the faulty stucco." Shearer responds, once again, that Gemini reads the underlying complaint too narrowly.
On this issue, the parties have correctly identified our scope of review. In determining whether a policy exclusion applies to the conduct at issue, we look "only at the facts alleged in the complaint to determine whether they provide a basis for recovery that could be covered by the policy." Ledford, 319 Or. at 400, 877 P.2d 80. If the allegations in the complaint are ambiguous, but a reasonable interpretation would bring them within coverage, there is a duty to defend. Klamath Pacific Corp. v. Reliance Ins. Co., 151 Or.App. 405, 413, 950 P.2d 909 (1997), modified on recons., 152 Or.App. 738, 955 P.2d 340 (1998); see also Nielsen, 283 Or. at 280, 583 P.2d 545 ("The insurer owes a duty to defend if the claimant can recover against the insured under the allegations of the complaint upon any basis for which the insurer affords coverage." (Emphasis in original.)). Moreover, if some allegations reasonably can be interpreted as falling within the coverage, the insurer owes a duty to defend even if other allegations of conduct or damage are excluded. Abrams v. General Star Indemnity Co., 335 Or. 392, 399-400, 67 P.3d 931 (2003) ("[W]hen the complaint contains allegations of conduct that are excluded under the insurance policy * * * the court must determine whether the complaint contains allegations of covered conduct. If it does * * *, then the insurer has a duty to defend, even if the complaint also includes allegations of excluded conduct." (Emphasis in original.)).
In their complaint against Walsh, the Evenstads alleged that, "[a]fter the repairs were completed, [they] began to notice cracking of the stucco * * *." They further alleged that they "became more concerned as the cracking continued and they began to notice leaking and mold[.]" As for the cost of the repairs, the Evenstads alleged that, although they had not yet obtained bids, "their preliminary estimate is that the total costs of the design and repair work will be approximately $1.5 million." In its third-party complaint, Walsh sought to pass that same liability along to Shearer.
The Evenstads' complaint clearly alleges cracking of the stucco itself. The complaint is ambiguous, however, as to whether damages from "leaking and mold" pertain only to the stucco, or rather to other parts of the house. The allegations reasonably can be read to refer to the latter i.e., damage to the house beneath the stucco siding, as a result of "leaking and mold." And because a reasonable reading of the complaint would bring some of the allegations within the coverage of the policy, it is irrelevant at least for purposes of the duty to defend that *75 other allegations might be excluded. Abrams, 335 Or. at 399-400, 67 P.3d 931.
Gemini next relies on two policy exclusions specific to the vendors endorsement. The first states that "the insurance afforded the vendor does not apply to * * * [a]ny physical or chemical change in the product made intentionally by the vendor[.]" The second states that the coverage does not apply to "[p]roducts which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor." According to Gemini, by mixing TransMineral's products with water and then installing them on the house, Shearer "necessarily changed the physical composition of the TransMineral stucco products" and "fabricated on-site a product that was separate and distinct from its constituent parts."
The meaning of a policy exclusion is a question of law. Hoffman Construction Co. v. Fred S. James & Co., 313 Or. 464, 469, 836 P.2d 703 (1992) (interpretation of an insurance policy is a question of law). In interpreting the terms of a policy, our goal is to ascertain the intention of the parties. Holloway v. Republic Indemnity Co. of America, 341 Or. 642, 649, 147 P.3d 329 (2006). We begin with the wording of the policy, applying any definitions contained in the policy and otherwise giving words their plain, ordinary meanings. Hoffman Construction Co., 313 Or. at 469-70, 836 P.2d 703. If that examination yields only one plausible interpretation of the disputed terms, our analysis goes no further. However, if we determine that the disputed term is susceptible to more than one plausible interpretation, we examine the term in the broader context of the policy as a whole. Id. at 470, 836 P.2d 703. If the policy's broader context fails to resolve the ambiguity, we will then construe the policy against the drafter, in this case, Gemini. Id. at 470-71, 836 P.2d 703.
We begin, then, with the language of the exclusions. The vendors endorsement provides:
"WHO IS AN INSURED (Section II) is amended to include as an insured any [vendor], but only with respect to `bodily injury' or `property damage' arising out of `your products' * * * which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions:
"1. The insurance afforded the vendor does not apply to:
"a. `Bodily injury' or `property damage' for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. * * *;
"b. Any express warranty unauthorized by you;
"c. Any physical or chemical change in the product made intentionally by the vendor;
"d. Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container;
"e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products;
"f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product;
"g. Products which after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor."
(Emphasis added.)
Gemini takes the position that, under the exclusions listed in paragraphs c. and g., the mere fact of mixing TransMineral's product or installing it as part of a stucco cladding system is sufficient to trigger the exclusion. That is, Gemini argues that, regardless of where the alleged defect was introduced into the product before or after Shearer's mixing and installation the exclusions are triggered once a vendor mixes and installs the *76 product as a "component part of something else." So, as Gemini reads the policy, the vendors endorsement essentially provides coverage to vendors who do nothing more than resell the product just as they receive it for example, the insurance would apply "[i]f Shearer had been sued by someone who purchased a bag of stucco and was injured by inhaling stucco dust," or if property owners were to purchase bags of stucco from Shearer and then mix and apply them on their own. Shearer, in response, contends that "[t]he mere fact that a product is mixed, or incorporated into another product or a building, does not determine the question of insurance coverage when the product is defective from the outset." (Emphasis added.)
Neither the exclusions in dispute nor the issue before us in this case is uncommon. A number of courts in other jurisdictions have previously considered when and how these same exclusions in a vendors endorsement apply, and more specifically, whether the exclusions require some nexus between the vendor's conduct and the damages alleged. See, e.g., Weaver v. CCA Industries, Inc., 529 F.3d 335 (5th Cir.2008); Hartford Fire Ins. Co. v. St. Paul Surplus Lines Ins. Co., 280 F.3d 744 (7th Cir.2002); Dometic Corp. v. Liberty Mut. Ins. Co., 2008 WL 4443234 (S.D.Ind.2008); Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc., 78 Cal.App.4th 847, 93 Cal.Rptr.2d 364 (2000); Travelers Ins. Co. v. Freightliner Corp., 256 Ill.App.3d 1049, 194 Ill.Dec. 828, 628 N.E.2d 325 (1993). That body of law, though not strictly following Oregon's method of policy interpretation, buttresses our own observation regarding the text of the exclusions in paragraphs c. and g.: They are ambiguous as to whether it matters how the damages arose.
Paragraph c., set out above, states that the "insurance afforded the vendor does not apply to * * * [a]ny physical or chemical change in the product made intentionally by the vendor[.]" It could be, as Gemini contends, that the parties meant for that exclusion to eliminate coverage once the product has been changed, regardless of whether bodily injury or property damage arose out of the "changed" product or from some defect that was present from the outset. But that is not literally what the text says. The direct object of the sentence i.e., that to which the "insurance afforded the vendor does not apply" is the product "change" itself. Given that sentence structure, it is also plausible to read the exclusion as eliminating coverage only with respect to the physical or chemical change to the product, which would preserve coverage for property damage or liability that arose otherwise, i.e., from a defect independent of the change.
Paragraph g. is similarly ambiguous. It states that the vendor's insurance does not apply to "[p]roducts which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor." It could be that the exclusion is triggered once the product has been "labeled or relabeled or used as a container, part or ingredient," regardless of whether those activities actually contributed to the bodily injury or property damage. In other words, once the product has been labeled, relabeled, or used as a container, part, or ingredient, coverage is lost no matter the source of the bodily injury or property damage. Or, it could be that the exclusion was intended to eliminate coverage only for the labeled, relabeled, or used product itself; that is, it only excludes coverage if the claims actually arise out of the labeling, relabeling, or use of the product as a container, part, or ingredient.
Nothing in the broader context of the vendors endorsement, or the policy as a whole, eliminates the ambiguity in those exclusions. The policy states that Gemini will "pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies." It further provides that Gemini "will have the right and duty to defend the insured against any `suit' seeking those damages." The vendors endorsement likewise is clear as to the nature of the "insurance afforded the vendor": coverage for "`bodily injury' or `property damage' arising out of `your products[.]'" (Emphasis added.)
*77 Given that the policy frames the "insurance afforded the vendor" in terms of whether "bodily injury" or "property damage" has arisen out of the product, a reasonable purchaser of insurance might well expect the exclusions to that insurance to similarly relate to how bodily injury or property damage has arisen. At the same time, the fact that the policy elsewhere imposes an "arising out of" requirement, but does not do so in the exclusions, supports Gemini's interpretation.[10]
Because we are unable to resolve the ambiguity based on the text and context of the policy, we therefore will interpret the provision against the insurance company and in favor of coverage. North Pacific Ins. Co. v. Hamilton, 332 Or. 20, 25, 22 P.3d 739 (2001). Applying that maxim, we interpret the exclusions in paragraphs c. and g. of the vendors endorsement to require some nexus between the vendor's conduct as described in the exclusion and the alleged "bodily injury" or "property damage." Thus, for the exclusion under paragraph c. to apply, Gemini must demonstrate that the property damage to the Evenstad residence arose out of a "physical or chemical change in the product made intentionally by [Shearer]"; likewise, for the exclusion under paragraph g. to apply, Gemini must demonstrate that the property damage to the Evenstad residence arose out of the fact that the product had been "labeled or relabeled or used as a container, part or ingredient[.]"[11]
With that understanding of the policy language, we turn back to the allegations in the Evenstads' complaint and Walsh's third-party complaint. The Evenstads' complaint alleged a number of specific ways in which Walsh breached the construction contract and/or was negligent. Among them were (1) "Failing to supply plaintiffs with a stucco product and cladding system that was free of defects and that met industry standards"; (2) "Applying a stucco product that was represented to contain only lime-based materials, but that in fact contained non-lime based materials"; and (3) "Applying a defective stucco product and cladding system." Walsh, in turn, alleged in its third-party complaint that TransMineral was negligent "in designing and manufacturing the stucco product used on the Residence" and that Shearer was "responsible for all aspects of recommending, selecting, and applying stucco products to the Residence."
Read together, the allegations in the complaint and third-party complaint make out a claim against Shearer for, among other things, recommending and supplying a stucco product to the Evenstads that was defective when designed and manufactured by TransMineral. The exclusions in paragraphs c. and g. of the vendors endorsement do not exclude coverage for that conduct. Therefore, Gemini owed a duty to defend Shearer against the claim, even if other theories of recovery against Shearer would be excluded under the policy. Abrams, 335 Or. at 399-400, 67 P.3d 931. And for that reason, and the others stated above, we reject Gemini's first assignment of error.
*78 Gemini next assigns error to the trial court's denial of its motion to strike certain exhibits filed in support of Shearer's motion for partial summary judgment. That argument hinges on the theory that the court's scope of review was limited to the pleadings and the policy, and that extrinsic evidence was not relevant to the issues before the court. For the reasons previously discussed, Gemini's premise is incorrect; the inquiry as to whether Shearer was an insured under the policy was not limited to the pleadings and the text of the policy. 237 Or.App. at 476-77, 240 P.3d at 73. But even assuming that some of the exhibits should have been excluded, Gemini has not demonstrated that it was prejudiced by their admission. In fact, Gemini concedes that such error "does not require reversal," because "this court can proceed to evaluate whether Gemini owed a duty to defend, ignoring the improperly admitted evidence." Because it does not provide a basis for reversing the judgment, we reject Gemini's second assignment of error without further discussion.
Gemini's remaining assignments of error pertain to the trial court's calculation and allocation of defense costs. In its third assignment, Gemini argues that the trial court erred in concluding that Gemini owed half of Shearer's defense costs for each year, even though three separate insurers had an obligation to defend Shearer. The correct allocation, according to Gemini, would have been one-third because each insurance policy contained an "other insurance" clause that limited coverage to an equal share of the obligation.
The trial court allocated the funds after a trial on stipulated facts. In its ruling, the court explained:
"A number of insurers were involved over the years in insuring TransMineral and its vendor, [Shearer]. The relationships between the insurers were somewhat complicated. The various companies owned, bought or sold one another, and at various times were the predecessor or successor of another. At all times, including when defendant was involved, there were a total of two insurers.
"All of the relevant policies have similar other insurance clause language. For the purpose of calculating [Gemini's] share, [Shearer's] other insurers are treated, relative to defendant, as one entity. * * *
"The net result is that [Gemini], at any given time, and at all times relevant here, is effectively a co-primary insurer. Accordingly, [Gemini] shares an equal obligation for defense costs, i.e. fifty percent."
(Emphasis added.)
In light of the stipulated facts in this case, we are not persuaded that the trial court erred in its allocation of defense costs. The parties stipulated as follows:
"OneBeacon Insurance Company is legally liable for all losses that occur on North Pacific Insurance Company policies issued prior to November 1, 2001. Both North Pacific and Oregon Automobile Insurance Company are under Liberty Northwest ownership and Liberty Northwest is legally liable for all losses that occur on policies issued after November 1, 2001.
"By mutual agreement, OneBeacon Insurance Company and North Pacific Insurance Company are both contributing to the defense of plaintiff in the [Evenstad action], pursuant to the defense obligation arising out of the insurance policies [described in the stipulation] and the allocation of legal liability described [in the preceding paragraph]. North Pacific's contribution to plaintiff's defense is on behalf of Liberty Northwest."
Under that stipulation, either OneBeacon Insurance Company or Liberty Northwest is liable to Shearer for policy periods, but not both. Gemini's defense obligation, meanwhile, spanned 2000 through 2004. So, as the trial court explained, at all relevant times, there were only two insurers on the risk (with North Pacific agreeing to pay Liberty Northwest's defense obligation). Under those circumstances, the trial court did not err in treating Gemini as one of two co-primary insurers.
In its final assignment, Gemini argues that the trial court erred in awarding defense costs to Shearer for expenses that Shearer's other insurers, OneBeacon and *79 North Pacific, had refused to pay. According to Gemini, OneBeacon and North Pacific are the real parties in interest in this case (pursuant to a stipulation by Shearer) and should not, in equity, be permitted to prosecute claims through Shearer for costs that they themselves had refused to pay. In effect, Gemini argues that this case should be treated as a claim for equitable contribution among insurers rather than a claim for breach of the duty to defend. However, that is not how the case was pleaded, and the parties' stipulation regarding real parties in interest has not converted Shearer's legal claim into an equitable contribution claim. We are not persuaded that the trial court erred by including, as part of Gemini's obligation, defense costs that were incurred by counsel in the underlying action, even if Shearer's other insurers have refused to pay them.
Affirmed.
NOTES
[1] Gemini also appeals a general judgment that was subsequently entered, but it concedes that the issues regarding the limited judgment are dispositive as to both appeals.
[2] Gemini's claim representative first set out that position in November 2004, in response to an earlier tender from Shearer one made before any claims had actually been filed against Shearer. The claim representative reiterated that position in response to the later tender as well.
[3] Although it assigns as error the grant of Shearer's motion for partial summary judgment, the relief Gemini seeks is a reversal and remand for entry of judgment dismissing Shearer's claims presumably based on the understanding that the issues before us are purely legal. However, as we have previously explained, there is a difference between defeating an adverse motion for summary judgment, on the one hand, and prevailing on one's own summary judgment motion, on the other. Because Gemini did not assign error to the denial of its own motion, it would be entitled, at most, to a remand for further proceedings were it to prevail on this assignment of error.
[4] Gemini further contends that an "insured" for purposes of the vendors endorsement includes only persons or organizations who sell over the counter or "off the rack," and does not include companies that, like Shearer, provide a product "incident to a service transaction." The text of the policy does not support that narrow interpretation.
[5] Shearer's brief is somewhat ambiguous on this point, offering an unenthusiastic defense of the trial court's admission of extrinsic evidence and then "assuming for the sake of argument" that the court may consider only the policy and the underlying complaints. At oral argument, Shearer expressly conceded that the inquiry regarding the duty to defend was limited to the facts in the underlying complaints, relying on extrinsic evidence only for purposes of "background."
[6] In Winther v. Valley Ins. Co., 140 Or.App. 459, 915 P.2d 1050 (1996), we looked exclusively to the facts in the complaint where a partner claimed that she was an insured under her partnership's insurance policy. In that case, the real issue was whether the alleged "conduct" was covered under the language of the terms of the policy, which covered personal injuries "[a]rising out of the conduct of your business[.]" Id. at 461. 915 P.2d 1050. There may be cases in which the question of an "insured" is inextricably intertwined with the relevant "conduct" under the policy; this is not such a case.
[7] The Supreme Court has treated the inquiries separately. See, e.g., Holloway v. Republic Indemnity Co. of America, 341 Or. 642, 649, 147 P.3d 329 (2006) ("[O]ur analysis begins, and ends, with our decision respecting whether the purported assignment from the insured to [the plaintiff] was valid. Because we hold that it was not, we need not decide the issue respecting the allegations [against the insured].").
[8] See also Allan D. Windt, Insurance Claims and Disputes § 4.5, 4-97 (5th ed. 2007) ("Before the general principle regarding the duty to defend applies [barring consideration of facts outside the complaint], it must be shown that the person claiming coverage is, in fact, an insured."); Barry R. Ostrager and Thomas R. Newman, Handbook on Insurance Coverage Disputes § 5.02[b], at 147 (6th ed. 1993) ("[W]here the duty to indemnify cannot be resolved by trial of a third-party's action against the insured, the duty to defend may depend upon actual facts and not upon the allegations of the complaint.").
[9] Again, we do not understand Gemini to argue that there were disputed issues of fact as to whether Shearer sold or distributed stucco products in the ordinary course of its business. Rather, we understand Gemini to argue that Shearer was required to prove that the underlying complaints established those facts, as opposed to some other evidence (for example, the Exclusive Applicator agreement by which Shearer contracted to distribute TransMineral's limestone products).
[10] In Dometic Corp., the court explained that "the typical broad form vendors endorsement went through language changes leading to the exclusion language at issue in this case." 2008 WL 4443234 at *7. Those changes, according to the court, eliminated the "arising out of" language from the vendors endorsement that, in earlier cases, had been held to require some nexus between the injuries at issue and the conduct listed in the exclusion. Insurance companies may well have changed the language of the endorsement in an effort to avoid the result of those earlier cases, but the revised language is too ambiguous to alert a reasonable purchaser of insurance of that intent.
[11] Our reading of the policies is consistent with the majority rule described in Lee R. Russ and Thomas F. Segalla, 9A Couch on Insurance 3d, § 130:10 (2008):
"Such exclusions [in a vendors endorsement] are interpreted narrowly; for the exclusion upon subsequent changes to apply, there must, in fact, be subsequent changes, and whatever the description of the change that triggers the exclusion, the injury or damage complained of must arise out of that subsequent change to the product.
"If the exclusion is written to apply once the insured's product has been relabeled, for example, injury must arise out of the relabeling or out of the use of the insured's product as part of another product in order for coverage to be excluded."
(Emphasis added; footnotes omitted.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264626/ | 879 F.Supp. 156 (1995)
Rosemary J. SAROCCO, as Administratrix of the Estate of Phillip V. Sarocco, and individually, Albert T. Hopper, Ethel Speranzo and Nicholas Speranzo, Plaintiffs,
v.
GENERAL ELECTRIC COMPANY and Monsanto Company, Defendants.
Civ. A. No. 94-30136-MAP.
United States District Court, D. Massachusetts.
March 30, 1995.
*157 *158 William B. Barry, Pittsfield, MA, Sidney B. Silverman, Gregory E. Keller, New York City, for Rosemary J. Sarocco, Albert T. Hopper, Plaintiff, Ethel Speranzo, Plaintiff, Nicholas Speranzo.
Joseph G. Blute, Daniel J. Gleason, Nutter, McClennen & Fish, Boston, MA, Robert J. Shaughnessy, Steven R. Kuney, Williams & Connolly, Washington, DC, for General Elec. Co.
John A.K. Grunert, Richard P. Campbell, Campbell & Associates, P.C., Boston, MA, for Monsanto Co.
MEMORANDUM REGARDING DEFENDANT GENERAL ELECTRIC'S MOTION TO DISMISS
(Docket No. 26)
PONSOR, District Judge.
I. INTRODUCTION
The plaintiffs are retired workers and the families of deceased employees who manufactured electrical transformers at a General Electric Company facility in Pittsfield, Massachusetts. The defendants are General Electric Company ("GE") and Monsanto Company ("Monsanto").
According to the complaint, former workers at the Pittsfield GE facility contracted various cancers and other illnesses from prolonged workplace exposure to a number of known, deadly carcinogens Arcolor, Pyranol and certain other epoxies containing polychlorinated biphenyls (PCBs), polychlorinated dibenzofurans (PCDFs) or trichlorobenzenes all manufactured by Monsanto. Plaintiffs are careful to explain that they are not seeking damages for their initial workplace exposure to these toxins. They readily admit that their exclusive remedy for these injuries is under the administrative scheme set forth in the Massachusetts Workers Compensation Act, Mass.Gen.L. ch. 152, § 24.
Instead, plaintiffs contend that GE's medical personnel intentionally misinformed and negligently advised workers as to the need for serious treatment of symptoms resulting from exposure to these chemicals. Plaintiffs allege that as a result of the fraudulent misrepresentation by G.E.'s medical personnel, their conditions went unattended causing them serious harm, including in some cases death.
General Electric has moved for dismissal of the complaint based on the exclusivity by the Massachusetts Workers Compensation Act. Mass.Gen.L. ch. 152, § 24.
Plaintiffs respond that the intentional and fraudulent concealment of the consequences of workplace exposure to toxins constitutes a cognizable claim separate and apart from the workers' compensation scheme. Conceding no authority directly on point in Massachusetts, they point to decisions from other state jurisdictions that permit actions based on allegations very similar to those set forth by the plaintiffs here.
Whatever the approach in other jurisdictions, this court must conclude that the provisions of Mass.Gen.L. ch. 152 and controlling Massachusetts precedent compel dismissal of all claims against GE. The court's reasons are set forth below.
II. FED.R.CIV.P. 12(B)(6)
The appropriate inquiry on a motion to dismiss is whether, based on the allegations of the complaint, the plaintiffs are entitled to offer evidence in support of their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Therefore, the court must accept as true all the factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiffs. Bergeson v. Franchi, 783 F.Supp. 713 (D.Mass.1992) (citing Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)). If under any theory the complaint is "sufficient to state a cause of action in accordance with the law, a motion to dismiss the complaint must be denied." Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987); accord Cuddy v. Boston, 765 F.Supp. 775, 776 (D.Mass.1991).
*159 III. THE COMPLAINT
The complaint sets forth the single claim of breach of fiduciary duty by GE's in-house physicians and other medical personnel. The facts alleged are as follows.
For decades, industrial workers were routinely exposed to deadly PCBs, PCDF's and other toxic compounds typically used in the manufacture and repair of electrical transformers at General Electric's Pittsfield facility (hereinafter the "Plant"). Plaintiffs detail above normal rates of leukemia and intestinal and bladder cancer among retirees from GE's Pittsfield facility. Chloracne, later developing into deadly skin cancers, plagued many workers and retirees who routinely handled chemicals without the benefit of gloves, safety equipment or protective clothing. The averments summarize the results of numerous scientific studies which conclude that the alarming rate of severe health problems among GE workers at the transformer Plant was directly caused by exposure to these toxins.
Plaintiffs allege that GE and Monsanto made a concerted effort to convince workers that their health problems were unrelated to exposure to PCB's and PCDF's. As far back as 1936, it is alleged that GE knew that workers should be screened for sensitivity to Pyranol and that adverse skin-reactions to Pyranol were often accompanied by liver damage. Despite GE's knowledge of these dangers, workers who complained about and sought treatment for Pyranol-related skin ailments were told that the condition was no more serious than ordinary acne and that with continued exposure they would develop resistance to the chemicals. In short, according to plaintiffs, physicians who worked in the Pittsfield plant infirmary told workers that exposure to Pyranol was not dangerous and that there was no grounds for them to be concerned about their health.
Eventually, GE performed tests to determine the level of PCB's in workers' blood streams. Plaintiffs say these test results were kept secret and, consequently, workers were prevented from receiving adequate treatment for the myriad symptoms and illnesses that resulted from exposure to these toxic chemicals. It is further alleged that GE made false statements to the Massachusetts Departments of Public Health and Labor and Industries in order to conceal the high rates of cancer among plant workers exposed to Pyranol and other PCB-laden chemicals.
Plaintiffs contend that the claims of the Estate of Phillip Sarocco and of Ethel Speranzo are typical of the class of persons on whose behalf this suit has been brought. Sarocco worked in the transformer repair section of the GE plant from 1963 until 1986. He developed bladder cancer in 1986 and retired. By 1990, the cancer had metastasized, infecting the lungs and bone. Sarocco died of cancer in 1993.
Sarocco was routinely exposed to Pyranol in the course of his employment. His autopsy revealed that his PCB level, seven years after his last exposure to Pyranol, was 2,200 parts per billion twice the level in the general population.
Ethel Speranzo worked at the GE facility in Pittsfield from 1962 to 1986. She used epoxy resins in the construction of voltage regulators and small transformers. The section of the plant she worked in had been contaminated by Pyranol due to spills and leakages that first occurred in the 1930's. In this area, workers routinely heated their lunch in ovens used to bake and cure the epoxy-laden transformers. Until 1985 there was no sink for hand washing in this portion of the plant. No warnings about the danger of these chemicals were given to employees. Ethel Speranzo has suffered from skin cancer for twenty-five years. She also has ovarian and breast cancer that has required a hysterectomy and a double mastectomy.
Plaintiffs contend that throughout the course of their employment, the infirmary physicians consistently placed GE's financial interest above the interests of the workers as their patients. Plaintiffs claim that this course of conduct amounts to fraudulent misrepresentation and constitutes a breach of fiduciary duty by GE-employed physicians.
IV. DISCUSSION
The allegations pose the following legal issue: Does the Massachusetts Workers' *160 Compensation Act, Mass.Gen.L. ch. 152, § 1 et seq. (the "Act" or ch. 152), provide the sole remedy for workplace injuries resulting from an employer's fraudulent misrepresentations that conceal the nature and extent of workrelated illnesses, thereby depriving employees of medical treatment and further aggravating their illnesses? It is a question of first impression in this jurisdiction. Fortunately, well-reasoned decisions of the Massachusetts' appellate courts, the "ultimate expositors of state law," provide a clear path for this court to follow in making its ruling. Woods v. Friction Materials, 30 F.3d 255, 263 (1st Cir.1994).
A. Mass.Gen.L. ch. 152: The Massachusetts Workers' Compensation Act
Chapter 152 affords broad protection to employees injured at work. Kelly's Case, 17 Mass.App. 727, 729, 462 N.E.2d 348 (1984). In accordance with the Act's legislative design, Massachusetts courts have liberally construed the term "personal injury," as defined in Mass.Gen.L. ch. 152, § 1, and the concept "arising out of and in the course of employment" contained in Mass.Gen.L. ch. 152, § 26. See Id.; L. Locke, Massachusetts Workmen's Compensation, 2d (Practice Series Vol. 29) §§ 25 and 26 (1968).
Under Massachusetts law, there is no qualification that an on-the-job injury be accidental in order to receive workers' compensation. Zerofski's Case, 385 Mass. 590, 592, 433 N.E.2d 869 (1982). Intentional conduct by an employer which causes injury is covered by the Act. Foley v. Polaroid Corporation, 381 Mass. 545, 413 N.E.2d 711 (1980). Moreover, injuries attributable in part to pre-existing conditions are compensable under the Act if aggravated by a workplace accident that results in disability. See Madden's Case, 222 Mass. 487, 111 N.E. 379 (1916). Compensation is provided whether the work-related disability results from a physical or an emotional harm. Fitzgibbon's Case, 374 Mass. 633, 373 N.E.2d 1174 (1978). "Entitlement to compensation does not depend on the fault of the employer or upon the foreseeability of harm." Kelly's Case, 17 Mass.App. at 729, 462 N.E.2d 348. Even personal injuries that result from deliberate or willful employer conduct are compensable under the Act if the personal injury arises out of and in the course of employment. Mass.Gen.L. ch. 152, § 28 (awarding double damages for injuries resulting from serious and willful misconduct). See L. Nason & R. Wall, Massachusetts Workers' Compensation Reform Act (1995), supplement to Locke, Workmen's Compensation.
B. Scope of § 24: Exclusivity of Remedy Provision
At the same time, Massachusetts courts have long recognized "that the general term `personal injuries' encompasses `wrongs which would not be personal injuries under the workmen's compensation act.'" Foley, 381 Mass. at 551, 413 N.E.2d 711, quoting Madden's Case, 222 Mass. 487, 492, 111 N.E. 379 (1916). Notwithstanding § 24, the Act's exclusivity provision[1], the Supreme Judicial Court has over the course of decades carved out specific exceptions for defamation, malicious prosecution, false imprisonment, invasion of the right to privacy, and "kindred tortious acts" that may be the basis for independent actions at law. Id.
Foley provides the methodology to be used in determining the type of tort claims an employee may bring against his or her employer at common law. In discussing why the exclusivity provision of the Act does not bar a common law action for defamation, the Foley court drew a distinction between physical or mental injuries arising out of employment and an injury to reputation, "irrespective of any physical or mental harm." Foley, 381 Mass. at 552, 413 N.E.2d 711. The court reasoned that "a [workers'] compensation claim could not purport to give relief for the main wrong of injury to reputation." Id. For this reason, malicious prosecution of an employee can give rise to a common law *161 claim "since the essence of the tort is not physical or mental injury, but the interference with the right to be free from unjustifiable litigation." Id. In the case of both of these torts, the resulting physical or mental harm is "not an indispensable ingredient of the tort." Id.
In contrast, the SJC ruled in the same case that the employee's claim for intentional infliction of emotional distress was barred by the compensation scheme, even though it was based on the same employer conduct that gave rise to the viable common law claims of defamation and malicious prosecution. Id. The SJC frankly noted the "conceptual problem" this analysis created, since the elements of damages to the plaintiff's reputation in Foley I were physical and mental injuries. Id. Nonetheless, the court explained that
the key to whether the Workmen's Compensation Act precludes a common law right of action lies in the nature of the injury for which plaintiffs makes claim, not the nature of the defendant's act which the plaintiff alleges to have been responsible for that injury.
Id., quoting Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 163, 168 (Mo. Ct.App.1978).
Plaintiffs' argument is that fraudulent misrepresentation or breach of a doctor's fiduciary duty is akin to defamation or false imprisonment and is therefore not the type of personal injury contemplated by ch. 152. Plaintiffs contend that intentional workplace torts give rise to a separate legal action if the essence of the tort is non-physical and the injury resulting is not a risk of employment.
This is not the test set forth in Foley. Common law actions are barred by the exclusivity of remedy of the Act if "the plaintiff is shown to be an employee; his condition is shown to be a `personal injury' within the meaning of the compensation act; and the injury is shown to have arisen `out of and in the course of employment.'" Id. at 548-549, 413 N.E.2d 711.
Whether pled as a breach of fiduciary duty or as fraudulent misrepresentation, it is inescapable that the "main wrong" alleged by the GE workers was an occupational illness unquestionably a personal injury as defined by the Act. Pasquale Squillante's Case, 389 Mass. 396, 450 N.E.2d 599 (1983) (asbestosis). In addition, the harm resulted from workplace exposure to PCBs and attendant physical examinations at the Plant's infirmary. The harms were directly attributable to the employer's conduct, i.e. arose out of and in the course of employment.
The type of injury these plaintiffs experienced as a result of their employer's alleged misrepresentations is different from the injury to reputation discussed in Foley. In this instance, plaintiffs' physical injuries followed ineluctably from GE's purported tortious conduct and are therefore an "indispensable ingredient" of their claim for relief. Foley, 381 Mass. at 552, 413 N.E.2d 711. In other words, the misrepresentation did not cause an injury "irrespective of the physical ... harm." Id. at 552, 413 N.E.2d 711.
It is of course theoretically possible to imagine a claim for misrepresentation or breach of fiduciary duty where the nature of the harm is not necessarily a personal injury as defined by the Act. For example, the exclusivity of remedy provision of the Act did not bar an employee's legal claim of intentional interference with advantageous relations against her employer. Felinska v. New Eng. Teamsters and Trucking Industry Pension Fund, 855 F.Supp. 474, 478 (D.Mass. 1994). The Felinska court explained that these claims could go forward because plaintiff was seeking contract damages, not compensation for personal injuries. Id. In this instance, plaintiffs' misrepresentation claim seeks only to recover for personal injuries compensable under the workers' compensation scheme.
C. Willful and Egregious Employer Misconduct
It is well established that the nature of the employer's conduct, no matter how unsavory, cannot be a factor in determining whether an injury is compensable under the Act. The plain language of § 28, entitled "Willful misconduct of employer," expressly provides for employer liability if "an employee is injured by reason of the serious and willful misconduct of an employer or of *162 any person regularly entrusted with and exercising the powers of superintendence." Mass.Gen.L. ch. 152, § 28; see also Decker v. Black and Decker Mfg., 389 Mass. 35, 36, 449 N.E.2d 641 (1983). Moreover, courts have consistently refused to narrow § 28 by creating an egregious conduct exception. Judicial inquiry has invariably focused on the type of harm suffered, not the nature of the defendant's conduct which caused the injury. See, e.g., Cullinan v. Monsanto Company, 1986 WL 8418 (D.Mass. July 29, 1986), citing Foley.
In Cullinan, the plaintiff alleged that Monsanto intentionally and fraudulently misrepresented information concerning the health risks and carcinogenicity of polyvinyl chlorides (PVCs). The employee suffered severe injury and ultimately died of malignant lymphoma as a consequence of twenty-five years of exposure to PVCs. Nonetheless, the claim sounding in deceit and fraudulent misrepresentation was dismissed due to the exclusivity of remedy provided by the Act.
Similarly, in Anzalone v. Massachusetts Bay Transportation Authority, 403 Mass. 119, 526 N.E.2d 246 (1988), plaintiff had just returned to work after suffering a disability from a job-related lung ailment. It was alleged that the supervisor sent workers to plaintiff's unventilated office to smoke cigarettes and paint outside his office door. Id. Consequently, plaintiff Anzalone suffered a relapse and ultimately became totally disabled. Id. at 121-122, 526 N.E.2d 246. The SJC dismissed the employee's common law claim of intentional infliction of emotional distress against his employer. The Anzalone court held that the supervisor's intentional misconduct arose in the course of employment and therefore plaintiff's claims were covered exclusively by ch. 152. Id. at 124, 526 N.E.2d 246.
Cullinan and Anzalone make it clear that General Electric's purported willful misconduct, however systemic and widespread and no matter how dire its consequences for the workforce, does not fall into some egregious misconduct exception to the exclusivity of remedy of the Act.
D. Misrepresentation by GE's Medical Personnel
Plaintiffs maintain that the facts of this case present a brand of employer misconduct one step removed from the supervisory misconduct set forth in Cullinan or Anzalone, requiring this court to craft another judicial exception to the workers' compensation bar. Complainants heavily rely on a speculative footnote in Cullinan which in large measure presaged the claim brought by these plaintiffs. In that case, Judge Freedman dismissed the employee's common law deceit claim against Monsanto because the physical injuries arose out of and in the course of employment, but conjectured that "a different case might have been presented ... where employer fraudulently deceives employee as to the existence of employee's compensable injury or disease." Cullinan v. Monsanto, 1986 WL 8418 at *5 n. 7.
Pursuing the dicta in this footnote, plaintiffs point to other jurisdictions that have recognized that an employer who "engages in intentional misconduct following a compensable injury may be held liable in an action at law for aggravation of the injury." Johns-Manville Products Corp. v. Superior Court of Contra Costa; Reba Rubkin, Real Party in Interest, 27 Cal.3d 465, 477, 165 Cal.Rptr. 858, 612 P.2d 948 (1980); see also Martin v. Lancaster Battery Company, Inc., 530 Pa. 11, 606 A.2d 444 (1992); Millison v. E.I. du Pont de Nemours & Co., 226 N.J.Super 572, 545 A.2d 213 aff'd., 115 N.J. 252, 558 A.2d 461 (1989); Delamotte v. Midland Ross Corp., 64 Ohio App.2d 159, 411 N.E.2d 814 (1978). Plaintiffs argue that the Johns-Manville decision is indicative of a trend that Massachusetts should follow by permitting an action at law when an employer fraudulently deceives an employee as to the existence of a workplace disease or injury.
Unfortunately for plaintiffs here, the Massachusetts workers' compensation scheme does not recognize what plaintiffs consider to be the crucial distinction that sets their claim apart from other claims of willful employer misconduct. Plaintiffs wish to contrast an injury caused by an employer's intentional concealment of a workplace hazard which they concede falls within Worker's Compensation *163 from an enhanced injury resulting from misrepresentations by medical personnel which obscure the severity or nature of the original harm. As will be explained, in either case § 28, the "willful misconduct of the employer" provision, applies.
With respect to employer liability the Act does not distinguish willful misconduct of the employer in the person of a supervisor from misconduct by a physician working for an employer, whether the doctor is considered as supervisory personnel or a co-employee[2]. Section 28 expressly provides for employer liability for misconduct of "any person regularly entrusted with and exercising the powers of superintendence." Court decisions have consistently held that intentional torts are compensable within the Workers' Compensation scheme if committed by a fellow worker acting within the course of his or her employment and in furtherance of the employer's interest. O'Connell v. Chasdi, 400 Mass. 686, 690-691, 511 N.E.2d 349 (1987). To hold otherwise would vitiate the willful misconduct provision of the Act. On the other hand, if a fellow worker was not acting "within the course and in furtherance of" his employment a cause of action may lie, but only against the co-worker and not against the employer. In either case, the Act does not permit an action at law against the employer for intentional misconduct by a fellow worker. Id. at 690, 511 N.E.2d 349.
In sum, the distinction between injuries caused by willful misconduct by the employer's supervisory personnel and injuries resulting from intentional torts committed by a co-worker is without consequence for these plaintiffs. Whether the GE doctors are considered supervisory personnel or fellow workers, the only way plaintiffs may seek relief from GE is through the workers' compensation scheme.
E. Policy Decisions and Federal Diversity Jurisdiction
The reasoning in the California Supreme Court's decision in Johns-Manville is not helpful to plaintiffs. In that case, an employee was permitted to bring an action at law against his employer for fraudulently concealing that he was suffering from an occupational disease caused by the ingestion of asbestos. The California Supreme Court held that the exclusivity provision of the California Workers' Compensation Act did not bar a cause of action for the aggravation of the disease, as distinct from the hazards of employment. See generally, Johns-Manville Products Corp. v. Superior Court of Contra Costa, 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948. As the defendant notes, this holding rests on a line of California decisions fundamentally at odds with Massachusetts case law. See Id. at 472-475, 165 Cal.Rptr. 858, 612 P.2d 948.
The Massachusetts courts have developed a fairly consistent, inclusive conception as to what injuries are compensable under the Act, repeatedly finding that intentional misconduct by an employer, no matter how egregious, that results in physical harm to an employee may be remedied only under the Act. On the other hand, the Johns-Manville court forthrightly noted that the many exceptions California courts have grafted onto the exclusivity provision of that state's workers' compensation act lack a "tidy and consistent rationale." Id. at 865, 612 P.2d 948. Ultimately, the holding of the Johns-Manville court was a clear policy decision by the high court that the state legislature did not intend to insulate flagrant employer misconduct from tort liability. Johns-Manville, 27 Cal.3d at 478, 165 Cal.Rptr. 858, 612 P.2d 948.
*164 In contrast, Section 28 of the Massachusetts Act expressly provides for a remedy of double compensation for workplace injuries resulting from serious and willful employer misconduct, clearly indicating the legislative design for a special remedy under the Act for this sort of misconduct. This double compensation has long been an essential part of the "beneficent design" underlying the compensation act. Young v. Duncan, 218 Mass. 346, 349, 106 N.E. 1 (1914); Nason and Wall, Massachusetts Workers' Compensation Reform Act, § 10.8, 289 (1995).
Whatever other jurisdictions may require, the Act represents the Massachusetts legislature's deliberate balancing of the competing interests of workers and employers. Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 350, 446 N.E.2d 1033 (1983). The SJC has expressed great deference to this balance. "Deficiencies in the compensation awards pursuant to the present statute are matters of concern for the Legislature" and any change in the Act which would permit tort litigation by an employee against the employer is a public policy decision for the Legislature. Longever v. Revere Copper & Brass Inc., 381 Mass. 221, 225, 408 N.E.2d 857 (1980); accord Barret v. Rodgers, 408 Mass. 614, 619, 562 N.E.2d 480 (1990) (citing Longever).
As the First Circuit has frequently noted, it is not a diversity court's proper place to blaze new and unprecedented trails in state jurisprudence. Kotler v. American Tobacco Co., 926 F.2d 1217, 1224 (1st Cir.1990). This maxim is especially applicable here where a ruling in plaintiffs' favor would carve out a judicial exception without precedent to the exclusive remedial provision of the Workers' Compensation Act. See Woods v. Friction Materials, Inc., 30 F.3d 255, 263 (1st Cir. 1994) (absent extreme circumstances federal courts are bound by the constructions placed upon state statutes by state courts).
Moreover, at oral argument plaintiffs were queried as to whether the issue now before the court warranted certification to the SJC as a question of first impression. Plaintiffs did not think certification was necessary and argued that previous Massachusetts decisions supported their position. However, a careful review of the relevant law "furnishes no encouragement for so venturesome a step" as plaintiffs would have the court take. Kotler v. American Tobacco Co., 926 F.2d at 1225.
F. Loss of Consortium
In 1985 the Act was amended to provide workers' compensation benefits for loss of consortium claims. Williams v. Westover Finishing Co., Inc., 24 Mass.App. 58, 60 n. 3, 506 N.E.2d 166 (1987). Only those claims which arose before the Amendment are not barred by the exclusivity provision of the Act. Id. Plaintiffs contend that the claims for loss of consortium for two of the plaintiffs, Nicholas Speranzo and Rosemary Sarocco, arose prior to 1985 and are not barred by the Act. See Foley v. Polaroid Corp., 400 Mass. 82, 84 n. 2, 508 N.E.2d 72 (1987) (loss of consortium actions barred only if injuries occurred after 1985). On the facts as alleged, it is indisputable that the injuries to Ethel Speranzo and Phillip Sarocco occurred prior to 1985; both of these workers retired from GE in 1986. However, the allegations make it clear that the loss of consortium of their plaintiff spouses occurred after 1985. Olsen v. Bell Telephone Laboratories, Inc., 388 Mass. 171, 445 N.E.2d 609 (1983), explains that loss of consortium is an independent cause of action and the date of its accrual is determined separately from that of the spouse's injury. For this reason, plaintiffs' loss of consortium claims will be dismissed without prejudice. Since the facts as alleged by plaintiffs do not permit the court to determine whether the loss of service or society occurred prior to 1985, plaintiffs seeking damages for loss of consortium may file an amended complaint clarifying when the claims for consortium arose, within twenty (20) days.
V. CONCLUSION
For the reasons set forth above, defendant General Electric's Motion to Dismiss is hereby ALLOWED. A separate order will issue.
NOTES
[1] Section 24 states in pertinent part: "An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury therein occurring, to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right...." See Foley, 381 Mass. at 548, 413 N.E.2d 711.
[2] Some jurisdictions have developed a special category of liability for injuries to employees resulting from the misconduct of medical personnel under a "dual capacity doctrine." See Austin v. Johns-Manville Sales Corp., 508 F.Supp. 313, 317-18 (D.Me.1981). In these circumstances, liability against an employer is established by presuming "distinct separate legal persona, not just a separate theory of liability of the same legal person" in the employer's commitment of intentional misconduct related to medical treatment. Id. at 318, citing Larson, Workmen's Compensation Law, § 72.80 (1980 Supp.); Johns-Manville v. Contra Costa Superior Court, 27 Cal.3d at 476, 165 Cal.Rptr. 858, 612 P.2d 948 (recognizing that California has adopted the "dual capacity doctrine"). Here, it does not appear that the medical personnel could be considered to have a separate persona from GE. For this reason, this doctrine is of limited value here. See Barrett v. Rodgers, 408 Mass. 614, 615-616, 562 N.E.2d 480 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725968/ | 721 So. 2d 741 (1998)
David Palmer MAY, Appellant,
v.
STATE of Florida, Appellee.
No. 97-1509.
District Court of Appeal of Florida, Fifth District.
October 9, 1998.
James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
PETERSON, Judge.
The appellant was found guilty of committing a lewd or lascivious act on a child under sixteen. § 800.04, Fla. Stat. (1997).
Appellant's sentence was based on a sentencing guidelines scoresheet in which 80 points were assessed for sexual penetration. See Fla. R.Crim. P. 3.991. We affirm the judgment of conviction, but vacate the sentence and remand for resentencing.
The jury's verdict failed to specify whether penetration took place. The evidence presented during trial described both a lewd fondling (which did not involve penetration) and the commission of oral sex (which may constitute penetration). Dickinson v. State, 693 So. 2d 55 (Fla. 5th DCA 1997). Either of these acts would support appellant's conviction for a lewd and lascivious act on a child under the age of sixteen and therefore it cannot be determined upon which act or acts the jury based its verdict. Accordingly, only 40 points for "sexual contact" should have been assessed. Because we cannot be sure that the court would have imposed the same sentence absent the additional 40 points for penetration, we vacate the sentence and remand for resentencing.
AFFIRMED IN PART; VACATED IN PART; REMANDED.
GOSHORN and HARRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632616/ | 103 P.3d 1184 (2004)
196 Or. App. 726
Kyra BURKE, Respondent,
v.
OXFORD HOUSE OF OREGON CHAPTER V, an unincorporated association, Oxford House-Ramona, an unincorporated association, and Oxford House, Inc., a Delaware corporation, Appellants.
0105-05394; A119933.
Court of Appeals of Oregon, En Banc.
Argued and Submitted March 8, 2004.
Resubmitted September 22, 2004.
Decided December 29, 2004.
*1185 Frank Wall, Portland, argued the cause and filed the briefs for appellants.
Edward Johnson argued the cause for respondent. With him on the brief were Mark Passannante, Broer & Passannante, P. S., and Oregon Law Center.
Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, SCHUMAN, WOLLHEIM, and ORTEGA, Judges, and DEITS, Judge pro tempore.
Resubmitted En Banc September 22, 2004.
ARMSTRONG, J.
Defendants Oxford House of Oregon Chapter V, Oxford House-Ramona, and Oxford House, Inc., appeal from a judgment for plaintiff on a claim under the Oregon Residential Landlord and Tenant Act (ORLTA). Defendants' two assignments of error amount to an assertion that the trial court erred in entering summary judgment for plaintiff because ORLTA does not apply to them. Defendants present two arguments. First, they argue that ORS 90.110 excludes them from ORLTA's coverage. Second, they argue that, to the extent ORLTA applies to them, it is preempted by the Federal Anti-Drug Abuse Act of 1988, 42 USC § 300x-25 (2000). Because we conclude that ORS 90.110 does indeed exclude defendants from ORLTA's coverage, we need not address defendants' preemption argument. We reverse.
Because the trial court ruled on cross-motions for summary judgment, we determine whether either party is entitled to judgment as a matter of law. Stevens v. Bispham, 316 Or. 221, 223, 851 P.2d 556 (1993). For the following reasons, we conclude that defendants are entitled to judgment under that standard.
Oxford House, Inc., is a national organization dedicated to helping recovering drug and alcohol addicts make the transition to independent lives in an environment that allows them to continue their recovery process without professional supervision. To promote that goal, Oxford House, Inc., and local organizations such as Oxford House of Oregon Chapter V have established unsupervised halfway houses for recovering addicts. The Oxford House model is based on three basic rules: (1) each house must be a self-governing democracy; (2) each house must be financially self-sufficient; and (3) any person using drugs or alcohol must be immediately expelled from the house. Oxford House-Ramona *1186 is an Oxford House located in Portland.
Plaintiff lived in Oxford House-Ramona. By majority vote, her co-residents found her in violation of an Oxford House rule prohibiting disruptive behavior. They evicted her from the house with fifteen minutes notice, and she complied. She subsequently brought an action against defendants, claiming that defendants had evicted her in violation of ORLTA's eviction requirements, specifically ORS 90.400. The trial court concluded (1) that the parties had a landlord-tenant agreement of the type covered by ORLTA; (2) that defendants were not exempt from ORLTA under ORS 90.110; (3) that the relevant provisions of ORLTA were not preempted by the Federal Anti-Drug Abuse Act of 1988; and (4) that plaintiff was entitled to her requested relief. Defendants challenge the last three conclusions on appeal.
Properly understood, two of the exclusions in ORLTA operate to exclude plaintiff's residential arrangement with defendants from the act: (1) ORS 90.110(3), which excludes "[o]ccupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization;" and (2) ORS 90.110(1), which excludes "[r]esidence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing."
ORLTA broadly sweeps non-owner-occupied residential rental relationships into its coverage. ORS 90.115 provides that ORLTA "applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state." However, ORS 90.110 excludes a limited class of rental arrangements from coverage under ORLTA. ORS 90.110 provides:
"Unless created to avoid the application of this chapter, the following arrangements are not governed by this chapter:
"(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing.
"(2) Occupancy of a dwelling unit for no more than 90 days by a purchaser prior to the scheduled closing of a real estate sale or by a seller following the closing of a sale, in either case as permitted under the terms of an agreement for sale of a dwelling unit or the property of which it is a part. The occupancy by a purchaser or seller described in this subsection may be terminated only pursuant to ORS 91.130. A tenant who holds but has not exercised an option to purchase the dwelling unit is not a purchaser for purposes of this subsection.
"(3) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.
"(4) Transient occupancy in a hotel or motel.
"(5) Occupancy by a squatter.
"(6) Vacation occupancy.
"(7) Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises. However, the occupancy by an employee as described in this subsection may be terminated only pursuant to ORS 91.120.
"(8) Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.
"(9) Occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes."
The enumerated exclusions essentially fall into two groups: (1) exemptions for short-term housing and (2) exemptions for housing where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship.[1]*1187 The exclusions in ORS 90.110(4) and (6) govern short-term housing ("[t]ransient occupancy in a hotel or motel" and "vacation occupancy" respectively). Underlying those exclusions is an assumption that the occupant of the property has a primary residence somewhere other than the property at issue and that short-term housing should not be subject to ORLTA. The remainder of the exclusions exempt arrangements where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship.
In the latter category of exemptions, the legislature has recognized that the encouragement of the underlying, primary relationship is more important than the protection of tenants. For example, ORS 90.110(2) recognizes that it is often necessary in real estate sale agreements for either the seller or buyer of real property to possess the property for a period of time while legal title is in the hands of the other party. Thus, the legislature exempted those arrangements from ORLTA to avoid burdening real estate transactions with the requirements of the act. ORS 90.110(7) recognizes that the relationship of employer and employee is the predominant relationship in situations in which an employee lives and works on the employer's property. It reflects that by exempting the landlord-tenant relationship from most aspects of ORLTA.
The same principle applies to the exemptions in ORS 90.110(1) and (3). Both subsections describe relationships in which the primary relationship between the parties is the relationship that is described in the subsections rather than the landlord-tenant relationship that the parties also share.
For example, the relationship between a fraternity member who lives on fraternity property and his fraternity is primary to the landlord-tenant relationship that exists between them by the fact of his residence. But for his membership in the fraternity, he would not be a tenant of the fraternity. With ORS 90.110(3), the legislature chose to subordinate the landlord-tenant relationship to the membership relationship so that, if an individual's membership is terminated, the fraternity can demand that he vacate their premises without compliance with the strictures of ORLTA.
Similarly, the relationship between a hospital and its patients is primary to the landlord-tenant relationship, as is the relationship between a nursing home or a college dormitory and its residents. ORS 90.110(1) makes clear that changes in the primary relationships should not be burdened by ORLTA. If a college student drops out of classes, the college should not be required to allow him to remain in his dorm room for 30 days. Nor should a hospital be required to give a patient 30 days' notice to vacate her room after the hospital has decided to discharge her. Thus, both ORS 90.110(1) and (3) create exemptions from ORLTA for housing where the primary relationship between the parties is something other than the traditional residential landlord-tenant relationship.
It is with that understanding in mind that we must construe the language of ORS 90.110(1) and (3) and apply it to the facts of the case before us. The proper interpretation of those provisions is that they exclude defendants from ORLTA.
We start with ORS 90.110(3), which excludes from ORLTA "[o]ccupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization." Applying the legislature's intent when it excluded fraternal and social organizations reveals that defendants are both fraternal and social organizations.[2]
*1188 Although the legislature did not define either "fraternal" or "social," it did define "organization." Under ORS 90.100(26)," `[o]rganization' includes a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, and any other legal or commercial entity." The record reflects that defendant Oxford House, Inc., is a nonprofit corporation and that defendants Oxford House of Oregon Chapter V and Oxford House-Ramona are unincorporated associations. Thus, there is no dispute that defendants are organizations. The question becomes whether they are fraternal or social organizations.[3]
The word "fraternity" can be understood to describe
"1: a group of people associated or formally organized for a common purpose, interest, or pleasure: as a: a religious or ecclesiastical brotherhood b: a usu. organized group of men of the same class, occupation, interest, or pursuit : COMPANY, GUILD : fraternal order c: a national or local men's student organization formed chiefly for social purposes having secret rites and a name consisting of usu. three Greek letters; also : an organization of alumni who were members of such an organization d: a student organization for scholastic, professional, or extracurricular activities; esp : a national honorary organization including students and alumni[.]"
Webster's Third New Int'l Dictionary 903 (unabridged ed. 1993). As the above description shows, fraternities are not limited to student groups; they also include associated groups of people with the same pursuit. Although it is not dispositive of the issue, it is nonetheless persuasive to recognize that defendants thought of themselves as a fraternity even before this litigation began. See Oxford House Manual: An Idea Based on a Sound System for Recovering Alcoholics and Addicts to Help Themselves 3 (2d ed. 1999) ("[Oxford House] is a very special fraternity."); id. at 4 (acknowledging that the fraternity house concept served as the model for the first Oxford House). Defendants are organized groups of people with the same pursuit: sober, independent living.
The involvement of Oxford House "alumni" in the organization further supports the conclusion that defendants are fraternal organizations. Alumni contribute financially to the program and provide ongoing support. In fact, Oxford House Tradition Nine provides, "Members who leave an Oxford House in good standing are encouraged to become associate members and offer friendship, support, and example to newer members." Former Oxford House members who participate in that way are part of the national Oxford House Tradition Nine Club, whose members *1189 "share their experience, strengths and hope in order to expand the Oxford House movement and keep it operating and expanding in a way to assure other recovering individuals the same opportunity they have enjoyed."
Defendants also are fraternal organizations in the "confederation" sense of the word. "Confederation" can be understood to mean "an act of confederating or a state of being confederated : a compact for mutual support[.]" Webster's at 475. A "confederacy" is, among other things, "a league or compact between two or more persons, bodies of men, or states for mutual support or common action." Id. (emphasis added). Defendants are groups of people who have come together to provide mutual support in battling addiction; their compacts are the membership agreements in which each individual agrees to remain drug and alcohol free so long as each resides at an Oxford House. In that sense, they are confederates in a confederation and are, thus, a fraternal organization.
Furthermore, defendants are social organizations. "Social" means, among other things, "involving allies or confederates." Webster's at 2161. In light of the above "confederation" discussion, defendants are organizations involving confederates in the battle against addiction. "Social" also can be understood to mean "of, relating to, or concerned with the welfare of human beings as members of society." Id. Defendants are organizations formed to aid individuals with addictions. Certainly, that concerns the welfare of human beings as members of society. While it may be a benefit to the residents themselves, as opposed to society as a whole, it is still a social purpose. It follows that defendants are social organizations.
For us to so hold is not a novel construction of "social organization," for that is precisely the conclusion that a court reached in YMCA of Stamford v. Bentley, 37 Conn.L.Rptr. 397 (Conn.Super.Ct.2004). There, the purported landlord the YMCA argued that it was excluded from the scope of Connecticut's landlord-tenant act because it is a social organization under a provision identical to ORS 90.110(3). The court, applying a dictionary definition of "social" very similar to the one quoted above,[4] concluded that the YMCA was indeed a social organization because its "programs exemplify [its] commitment to promoting the welfare of its members." Id. at 399. The YMCA presented the Connecticut court with an organization that worked to better the welfare of its own members, that is, a social organization that focuses on its own members rather than society as a whole. The Connecticut court concluded that promoting the benefit of its own members was sufficient to render the YMCA a "social organization."
The dissent argues that the Connecticut court concluded that the YMCA was a social organization largely based on a statement in the YMCA's charter, which "describes the primary purpose of the organization as to `carry out various charitable projects for the religious, social and educational improvement of its members.'" Id. While that statement may have played a role in the court's conclusion, the result in the case did not depend on the proposition that the YMCA intended to engage in charitable activities. The court was at least as persuaded by the YMCA's "commitment to promoting the welfare of its members." Id. In any event, to the extent that an organization's statements about itself are persuasive as to whether it is covered by ORLTA, we note that Oxford House's incorporation certificate identifies as the organization's first purpose: "[t]o improve the rehabilitation, industrial, and social condition and environment for recovering alcoholics, by the development of plans and programs for their recovery and rehabilitation and by establishing, operating, and maintaining homes for recovering alcoholics." (Emphasis added.)
Having concluded that defendants are fraternal and social organizations, we must address *1190 whether plaintiff's room was a "portion of a structure operated for the benefit of the organization." ORS 90.110(3). Plaintiff insists that it was not and that, if the defendants are fraternal or social organizations, then only the common areas of Oxford House-Ramona are operated for the benefit of the organization. Plaintiff is incorrect on both points. Oxford House as an organization benefits from the operation of sleeping quarters like plaintiff's. First, it receives a financial benefit that allows it to operate. Second, by having its members live under the same roof, Oxford House creates the community on which it relies to promote sobriety and independent living. Finally, to accept plaintiff's argument that only the common areas of the house are operated for the benefit of the organization and are therefore excluded under ORS 90.110(3) would create the absurd result in which defendants would be bound to warrant the habitability of plaintiff's sleeping quarters but would not be so bound with respect to the kitchen, bathroom, living room, and other areas of the house. Either all of Oxford House-Ramona is operated for the benefit of the organization or none of it is. We conclude that all of it is, and it is thus exempt from ORLTA.
The dissent maintains that ORS 90.110(3) does not apply to defendants because plaintiff's residency is not incidental to defendants' primary purpose. We disagree with that proposition on two levels. First, as we discuss in other parts of this opinion, Oxford House's primary purpose is to assist addicts in recovery, not to provide housing. Second, whether residence is incidental to some other purpose is only relevant to the analysis under ORS 90.110(1) and, as we discuss below, that analysis in that context reveals that plaintiff's residence at Oxford House was incidental to her receipt of services similar to counseling.
Second, the dissent incorrectly understands our opinion. It reads our opinion to recognize in each exemption in ORS 90.110 a requirement that the occupancy or residency be incidental to the organization's purpose to qualify for exempt status. We recognize no such requirement because there is none. To the extent that the dissent understands our classification of the various exemptions in ORS 90.110 into two classes, one of them being "exemptions for housing where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship," to import a "primary purpose" test into every exemption, that understanding is wrong. The primary relationship between parties may be something other than a landlord-tenant relationship even if the primary purpose of the landlord or tenant or both is housing. For example, the primary purpose of a home buyer who takes possession of a residential property before the close of the real estate transaction is to establish a residence, and the primary purpose of the seller who allows him to do so is to provide housing. Often there is even consideration in such a transaction. Nonetheless, the primary relationship between these parties is not a landlord-tenant relationship. Instead, the primary relationship between them is buyer-seller.
Similarly, an individual may choose to join a fraternity solely for the housing aspect of the relationship, or a fraternity may even organize solely for housing purposes. Nonetheless, the primary relationship between the parties is that of member-fraternity, not landlord-tenant. The dissent's primary purpose rule purportedly derived from legislative history and maxims of statutory construction would contradict the plain language of ORS 90.110(3) by subjecting to ORLTA coverage fraternal or social organizations whose primary purpose is to provide housing for their members. For that reason, among others, the dissent's interpretation cannot be correct.
The defendants are not only exempted from ORLTA by ORS 90.110(3) but by ORS 90.110(1) as well. ORS 90.110(1) excludes from ORLTA "[r]esidence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing." To satisfy that exclusion there must be (1) an institution, (2) that provides medical, geriatric, educational, counseling, religious or similar services, and (3) residence at that institution *1191 must be incidental to the provision of those services.
Plaintiff contends that defendants' argument under ORS 90.110(1) is not preserved because defendants did not specifically refer to that subsection in making their arguments to the trial court. Defendants acknowledge that they did not refer specifically to ORS 90.110(1), but they maintain that the issue is preserved because they argued that "housing was incidental" and "whether housing was incidental has no relevance except under ORS 90.110(1)." We need not decide whether defendants' reference to incidental housing was sufficient because, even if it were not, we still must address the applicability of ORS 90.110(1). Defendants preserved the general issue whether they are exempt from ORLTA, and we are required to interpret the applicable statutes correctly even when preservation in the trial court does not occur. See, e.g., Miller v. Water Wonderland Improvement District, 326 Or. 306, 309 n. 3, 951 P.2d 720 (1998); Burk v. Hall, 186 Or.App. 113, 118, 62 P.3d 394, rev. den., 336 Or. 16, 77 P.3d 319 (2003).
An "institution" can be understood to be "something that is instituted * * * as * * * an established society or corporation : an establishment or foundation esp. of a public character." Webster's at 1171. Founded in 1975, with hundreds of locations today, Oxford House certainly is an established corporation and therefore satisfies the first requirement of ORS 90.110(1).[5] Thus, the question becomes whether defendants provide the requisite services.
Defendants do not provide medical, geriatric, educational, or religious services. Furthermore, defendants admitted that they do not provide on-site professional counseling services. The record reflects that those services would be too costly. Nonetheless, the environment of self-policing and mutual support at Oxford House combines with the zero-tolerance principles to amount to services similar to counseling; that is, Oxford House provides peer supervision, support, and counseling. The record is replete with support for the conclusion that the services that members of an Oxford House provide to one another are similar to counseling services.[6]
*1192 Before a recovering addict is accepted as a member in an Oxford House, she must go through an intense interview with a current member. One of the questions the interviewer asks is this: "Can you tell us behaviors that may indicate that you may be headed toward a relapse? If we see these behaviors in you, would you comply with a House vote for special requirements?" The point of that inquiry is to enable the residents of an Oxford House to intervene if one of their fellow members appears to be headed toward a relapse. If intervention is not in fact counseling, then it is at least similar to counseling. "Counseling" can be understood to be "a practice or professional service designed to guide an individual to a better understanding of his problems and potentialities by utilizing modern psychological principles and methods[.]" Webster's at 518. Intervention by fellow Oxford House members before a relapse can guide the troubled member to a better understanding of her problems and prevent her from returning to addiction.[7]
One "special requirement" that an Oxford House vote may impose if the house suspects that a member is headed toward a relapse is that the troubled member attend Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meetings. While many Oxford House members participate in AA or NA, participation is not generally a requirement. However, according to Oxford House Tradition 4, "[i]f a resident's non-attendance at AA or NA meetings is causing problems for the individual or the house the residents may vote at a meeting to make meeting attendance for a particular member a condition of living in the house."
Members of Oxford House provide to one another, within a safe environment, services analogous to those provided by professional counselors in the field of rehabilitation. Each member has financial, social, administrative, and emotional duties to the other members. Without the three basic rules self-governance, financial self-sufficiency, and automatic expulsion for relapse and the accompanying duties, according to Oxford House founder J. Paul Molloy, "it is too easy to lapse into abuse again." According to Molloy, "[a]n essential component of recovery is security derived from living in a clean and sober environment with peer support that encourages responsible individual behavior."
One example reflected in the record of how the mutual support network functions to encourage sobriety at an Oxford House is the house's efforts to be sure no one feels alone. On that point, Molloy says, "One factor leading to relapse is loneliness. The Oxford House concept remedies this problem by placing two persons to a room where practical. By having * * * a roommate, an individual in times of loneliness, despair, anger, rejection, depression, or having a bad day [sic], will be able to have another recovering individual to talk to about her problem, and obtain a constructive manner to deal with the problem other than resort to drugs and alcohol." In the mutually supportive environment of the Oxford House, each member "reinforce[s the] other's desire to stay clean and sober forever." Even plaintiff admitted that, at Oxford House, the residents look to each other for support.
As a voluntary association of recovering addicts, Oxford House provides a support network for its members that amounts to counseling. On this point, Molloy stated:
"AA, which was founded in 1935, provides the other strong support for the Oxford House system which is the notion of relying upon voluntary self-help, which, as you probably know from Alexis deTocqueville [sic] wrote a book, Democracy in Action when he toured the United States in 1835.
"And he was a Frenchman who came over here and has a whole chapter on voluntary associations. And, of course, Oxford House is very much a voluntary association. Groups who are recovering alcoholics and drug addicts, you know, take advantage of the First Amendment and say, hey, we want to form an association. And they group together and help each other stay clean and sober."[8]
*1193 Those highlights of the record establish that defendants provide services similar to counseling to their residents. Thus, the question becomes whether residence at Oxford House is incidental to those services. It is.
Unless ambiguous, we must give the term "incidental" its plain meaning. PGE v. Bureau of Labor Land Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). "Incidental" can be understood to mean "subordinate, nonessential, or attendant in position or significance: as * * * occurring as a minor concomitant[.]" Webster's at 1142 (emphasis added). That meaning is consistent with the construction given the term by the Washington Court of Appeals in Sunrise Group Homes, Inc. v. Ferguson, 55 Wash.App. 285, 777 P.2d 553 (1989). In Sunrise Group Homes, the court was asked to determine whether the Washington version of ORLTA applied to a particular congregate care home. Id. at 286, 777 P.2d at 554. The Washington court concluded that it did not because the plaintiff's residence at the facility was incidental to the services that she received there. Id. at 289, 777 P.2d at 555. The court stated that incidental "does not mean that room and board must be trivial or unimportant in comparison with the overall institutional purpose; it means that living there is subordinate or attendant to the institutional purpose." Id. (emphasis added). Without citing Webster's, the Washington court used a dictionary description of the uses of incidental in its construction of that term.
Residence at Oxford House is merely attendant to defendants' institutional purposes. The purpose of an Oxford House is to provide a group environment in which members can support and help each other maintain sobriety and achieve self-reliance. The three basic rules reflect the goals of sobriety, self-governance, and self-support. Residence at the facility is attendant to those purposes, just as residence in a campus dormitory is attendant to college enrollment, Sunrise Group Homes, 55 Wash.App. at 289, 777 P.2d at 555, and residence at a nursing home is attendant to around-the-clock geriatric care.
As defendants persuasively argued in their motion for summary judgment:
"[P]rospective Oxford House members do not seek housing where it may be convenient for them. Nor do they look for a home that they think is aesthetically pleasing, or in a neighborhood that they particularly enjoy. Potential members seek out available memberships in Oxford Houses, specifically in an attempt to join the organization. Prospective members want to benefit from the other members' support and from the members' common goal of a healing environment. In other words, the physical surroundings of an Oxford House are secondary to the support and emotional benefit of belonging to a group of one's peers."
In those ways, residence at Oxford House is fundamentally different from traditional housing. People seeking membership at Oxford House are looking to maintain their sobriety, establish themselves financially, and govern their own lives without the "overseer" that typically accompanies residence at a halfway house. The fact of residence is subordinate or attendant to those purposes. Thus, residence at an Oxford House is incidental to the counseling-like services that residents receive.[9]
*1194 Because we conclude that defendants are excluded from the scope of ORLTA by ORS 90.110(1) and (3), we must resolve a final question before concluding that ORLTA does not apply to defendants: whether the arrangement between plaintiff and defendants was created to avoid the application of ORLTA to defendants. See ORS 90.110 (providing exclusions from ORLTA for certain arrangements "[u]nless created to avoid the application of this chapter"). Plaintiff points to Oxford House documents that explain the importance of entering into leases for new Oxford Houses in the name of the entity rather than an individual and argues that defendants have structured themselves to avoid the requirements of ORLTA. At most, those documents show that Oxford House is careful about the relationship between it and the ultimate landlord, namely the property owner. However, that relationship is not at issue in this case. The relationship in question here is that between plaintiff and defendants. Plaintiff's evidence does not show that relationship to have been created to avoid the application of ORLTA. Whether viewed as a relationship subject to ORS 90.110(1) or (3), the relationship between plaintiff and defendants was created to assist plaintiff with her recovery from addiction. This is not an instance where a property owner calls its tenants "members" and creates a purported social organization in order to seek to avoid the burdens of ORTLA, nor is it an instance where a landlord provides purported educational classes to its tenants and calls itself an educational institution. As the trial court recognized, "Oxford House exists for the sole purpose to assist drug and alcohol dependant individuals in their recovery." That purpose is necessarily the horse before the cart that is the living arrangement.
In sum, ORS 90.110 excludes Oxford Houses from the reach of ORLTA. A correct application of the statute requires the conclusion that defendants are indeed fraternal and social organizations under ORS 90.110(3) as well as institutions that provide counseling-like services to which residence is incidental under ORS 90.110(1), and that the arrangement between plaintiff and defendants was not created to avoid the application of ORLTA. The primary relationship between plaintiff and defendants was not their landlord-tenant relationship. Whether characterized as a membership relationship with a fraternity or social organization or as a supportive relationship in an institution that provides services similar to counseling, the parties' primary relationship is not burdened by ORLTA. The trial court erred in concluding otherwise and in granting plaintiff's motion for summary judgment and denying defendants' motion.
Reversed and remanded.
LANDAU, J., concurring.
I agree with the majority that defendants are subject to ORS 90.110(3), which excludes from the Oregon Residential Landlord and Tenant Act "[o]ccupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization." Because that exclusion applies, in my view it is unnecessary to address whether a different exclusion, stated in ORS 90.110(1), also applies, and I express no opinion about that question.
HASELTON, J., joins in this concurrence.
SCHUMAN, J., concurring.
I agree with the majority that defendants are subject to ORS 90.110(1), which excludes from the Oregon Residential Landlord and Tenant Act "[r]esidence at an institution, public or private, if incidental to * * * the provision of * * * counseling * * * or similar service[.]" Because that exclusion applies, my disagreement with the majority's conclusion that Oxford House is a "fraternal or social organization in the portion * * * operated for the benefit of the organization," 196 Or.App. at 744, 103 P.3d at 1194, does not preclude me from concurring.
I concur.
*1195 EDMONDS, J., dissenting.
The majority holds that defendants are exempt from the provisions of the Oregon Residential Landlord and Tenant Act (ORLTA) because their arrangement with plaintiff falls within the provisions of ORS 90.110(1) and (3). For the reasons that follow, I dissent.
The questions presented by this case are questions of statutory interpretation. Therefore, our task is to discern the intent of the legislature. In that quest, we are guided by the template established in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993). ORLTA was enacted in 1973 and is patterned after the Uniform Residential Landlord and Tenant Act. Brewer v. Erwin, 287 Or. 435, 438, 600 P.2d 398 (1979). The act is intended to be a comprehensive statutory scheme dealing with the terms of rental agreements; it imposes obligations on landlords and on tenants, and it spells out their remedies. Id. However, ORLTA does not apply to all rental agreements. ORS 90.110 provides:
"Unless created to avoid the application of this chapter, the following arrangements are not governed by this chapter:
"(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing.
"(2) Occupancy of a dwelling unit for no more than 90 days by a purchaser prior to the scheduled closing of a real estate sale or by a seller following the closing of a sale, in either case as permitted under the terms of an agreement for sale of a dwelling unit or the property of which it is a part. The occupancy by a purchaser or seller described in this subsection may be terminated only pursuant to ORS 91.130. A tenant who holds but has not exercised an option to purchase the dwelling unit is not a purchaser for purposes of this subsection.
"(3) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization.
"(4) Transient occupancy in a hotel or motel.
"(5) Occupancy by a squatter.
"(6) Vacation occupancy.
"(7) Occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises. However, the occupancy by an employee as described in this subsection may be terminated only pursuant to ORS 91.120.
"(8) Occupancy by an owner of a condominium unit or a holder of a proprietary lease in a cooperative.
"(9) Occupancy under a rental agreement covering premises used by the occupant primarily for agricultural purposes."
Preliminarily, I agree with the majority's assertion that
"[t]he enumerated exclusions essentially fall into two groups: (1) exemptions for short-term housing and (2) exemptions for housing where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship. The exclusions in ORS 90.110(4) and (6) govern short-term housing (`[t]ransient occupancy in a hotel or motel' and `vacation occupancy' respectively). Underlying those exclusions is an assumption that the occupant of the property has a primary residence somewhere other than the property at issue and that short-term housing should not be subject to ORLTA. The remainder of the exclusions exempt arrangements where the primary relationship between the parties is something other than a traditional residential landlord-tenant relationship."
196 Or.App. at 730-31, 103 P.3d at 1186-87 (footnote omitted). However, the majority fails to grasp the import of its understanding regarding legislative intent. Later in this opinion, I will address the importance of understanding the role that the primary relationship between the parties plays in the construction of ORS 90.110.
Second, this case on its facts intuitively suggests there ought to be an exemption in the law that benefits defendants, given their *1196 commendable purpose. We need to be mindful, however, that we cannot legislate in this case. We do not create statutory law; rather, we take the words of the statutes in accordance with their commonly understood meaning and ask whether defendants' proposed meaning is consistent with the meaning of the words that the legislature intended. Any exercise beyond that function exceeds our authority as the judicial arm of the government.
Finally, neither the Supreme Court nor we have been required to interpret the words in either ORS 90.110(1) or ORS 90.110(3). The template for our task is well-established. To determine the legislature's intent, we must first examine the text in the context of ORLTA. PGE, 317 Or. at 610, 859 P.2d 1143. In that analysis, we consider rules of statutory construction that bear directly on the reading of the text in context. Id. at 611, 859 P.2d 1143. Context includes related statutes, as well as prior versions of statutes. See id.; State v. Webb, 324 Or. 380, 390, 927 P.2d 79 (1996). If the meaning of a statute is not clear from the text and context, we then resort to legislative history and, if necessary, to general maxims of statutory construction. PGE, 317 Or. at 611-12, 859 P.2d 1143.
ORS 90.100 establishes definitions of "landlord," ORS 90.100(20), and "tenant," ORS 90.100(42), in broad, encompassing terms. Additionally, ORS 90.115 provides that ORLTA is to have broad application.[1] It follows that any exception to the coverage provided by ORLTA ought to be strictly and narrowly construed so as to not defeat the legislature's overall purpose. Otherwise, the exceptions to the act, broadly construed, could eviscerate its regulatory effect.[2] For instance, ORS 90.110(1) indicates that defendants are excluded from coverage under that exclusion if their arrangement with plaintiff involved "[r]esidence at an institution, public or private" that was incidental to "the provision of medical, geriatric, educational, counseling, religious or similar service[s]." Here, defendants concede that they provide no direct counseling or similar rehabilitative service to Oxford House-Ramona residents. That fact ought to be enough to disqualify them from exempt status because, if the exception in subsection (1) is expanded to encompass them, it is also broad enough to encompass other institutions that do not meet the statute's requirements.
Defendants rely, however, on the fact that the residents provide moral support and reinforcement to each other. In defendants' view, that fact satisfies the requirement of ORS 90.110(1) of an occupancy incidental to the provision of a service similar to a counseling service. However, the language of subsection (1) cannot be plausibly interpreted to encompass defendants' interpretation. First, the statute requires residence at an "institution, public or private." Second, the residency furnished by the institution must be "incidental to detention or provision of medical, geriatric, educational, counseling, religious or similar service[s]." The meaning of the two parts of the statute when read together are unambiguous. The institution that provides the residence must also provide one of the enumerated services or a similar service. But here, as expressed above, Oxford House-Ramona does not contend that it provides a counseling or similar service to its residents.
The majority contends, however, that, because discussions of drug and alcohol problems occur between residents in Oxford House-Ramona and are intended to occur under the Oxford House model to facilitate recovery, the residents provide each other with services similar to counseling, i.e.,"peer supervision, support, and counseling." The majority posits that those actions can be attributed to defendants because, "when members of an Oxford House act, it is, in *1197 fact, Oxford House acting." 196 Or.App. at 739 n. 6, 103 P.3d at 1191 n. 6. Residence in an Oxford House residence is in a sense a kind of membership, i.e., a group of people, but it does not follow from that fact that, when residents provide peer reinforcement through discussions about their addictions and other problems, they are defendants' agents. Rather, the record indicates that, although the Oxford House model encourages the residents to support each other, defendants do not supervise their residents or otherwise offer them any services. Indeed, the Oxford House model is specifically designed to provide for unsupervised recovery, the antithesis of an institution that provides services where residence is incidental to the service provided. Because there is no evidence that peer reinforcement is the primary object of the arrangement between Oxford House and its tenants, the majority's theory under ORS 90.110(1) fails.
If, for the sake of argument, the residents of Oxford House-Ramona act as the agents of defendants when they interact with other residents, defendants still do not qualify for the exemption under ORS 90.110(1) because the peer reinforcement provided by residents to each other is not similar to "counseling." "Counseling" is "a practice or professional service designed to guide an individual to a better understanding of his problems and potentialities by utilizing modern psychological principals and methods [.]" Webster's Third New Int'l Dictionary 518 (unabridged ed. 2002). The record indicates that Oxford House residents are roommates and, like many roommates, they discuss their problems with each other, confront one another about problems, and prefer to live with others who hold similar views. Nothing in the record indicates that the residents' reinforcement of each other or their peer counseling constitute the professional therapy that the statute's language contemplates or that the residents are aware of, trained in, or utilize modern psychological therapeutic methods. Under any common understanding of the meaning of the text of ORS 90.110(1), it reasonably cannot be said that the activities that residents direct at each other constitute "counseling or similar services" within the meaning of the statute.
Finally, even if it can be said that defendants furnish a living environment in which the kind of counseling contemplated by the statute can occur, defendants are not the kinds of institutions that ORS 90.110(1) excludes from ORLTA coverage. The services listed in the statute medical, geriatric, educational, counseling, and religious indicate the kinds of institutions to which ORS 90.110(1) applies. All of the institutions listed in the statute are institutions whose primary purpose is to provide one of the enumerated services or a similar service. That principle was recognized in Gray v. Pierce County Housing Authority, 123 Wash.App. 744, 97 P.3d 26 (2004). In that case, the court considered whether the Pierce County Housing Authority (PCHA), qualified for an exemption under RCW 59.18.040(1). That statute provides that "[r]esidence at an institution, whether public or private, where residence is merely incidental to detention or the provision of medial, religious, educational, recreational, or similar services * * * " is excluded from coverage under Washington's Residential Landlord and Tenant Act. The court concluded that PCHA did not qualify under the statute, even though it provided the kind of educational services to residents contemplated by the statute, because PCHA's primary purpose was to provide housing for low-income tenants. 123 Wash.App. at 759, 97 P.3d at 33. The court also concluded that, because PCHA was not the kind of institution to which the statute applied, it need not determine whether the plaintiff's residence was incidental to the provision of any educational service.
Defendants are similar to the PCHA in that their primary purpose is not to provide one of the enumerated services in ORS 90.110(1) to which residence is incidental, but, rather, to provide low-cost housing in which individuals can support each other as they recover from addictions. Thus, even if the peer reinforcement that occurs between residents can somehow constitute "services" provided by defendants, the fact remains that defendants' primary purpose is to provide low-cost housing. That understanding is also consistent with one of the trial court's written findings in this case:
*1198 "While I certainly do recognize that Oxford House exists for the sole purpose [of] assist[ing] drug and alcohol dependent individuals in their recovery, the way in which Oxford House does so is to provide drug and alcohol free housing. It is the housing that is central to the relationship."
The trial court's finding is supported by uncontroverted evidence in the record that defendant's primary purpose is to provide housing. Because a reasonable trier of fact could not conclude on the summary judgment record before us that that purpose is secondary or incidental to some other purpose of defendants, they are not the kind of institutions to which ORS 90.110(1), by its terms, applies.
In summary, there are three independent but related reasons in light of the statutory requirements why defendants do not qualify under ORS 90.110(1):(1) Defendants provided no services to plaintiff of the kind enumerated in the statute; (2) plaintiff's occupancy in Oxford House Ramona was the primary and not the incidental object of the arrangement between her and defendants; and (3) even if it could be held that defendants provided the kind of services to plaintiff contemplated by the statute, defendants themselves are not the kinds of institutions that ORS 90.110(1) excludes from ORLTA because their primary purpose is to provide a particular kind of living environment to individuals recovering from addictions. In contrast, the statute requires that the residency be "incidental" to the service provided.
Defendants also rely on ORS 90.110(3). That statute provides that an "arrangement" is not governed by ORLTA if the relevant landlord-tenant relationship consists of an "[o]ccupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization." The key phrase in the statute is the phrase "fraternal or social organization." The statute itself does not provide a definition of those terms. Also, the text and context of those terms do not indicate how broadly the legislature intended those terms to be understood. Indeed, the terms are ambiguous as demonstrated by the majority's reasoning. The majority, relying on selected dictionary definitions of "fraternity" and "social" interprets those terms to refer to "associated groups of people with the same pursuit," 196 Or.App. at 733, 103 P.3d at 1189, and groups of people that are "concerned with the welfare of human beings as members of society," 196 Or.App. at 734, 103 P.3d at 1188 (internal quotation marks omitted). Those definitions are plausible, but so are definitions that are more limited. Fraternal organizations can be understood to include groups traditionally considered to be fraternal organizations, such as
"the grand and subordinate lodges of the Masons, the grand and subordinate lodges of the Knights of Pythias, the Knights of Columbus, the Benevolent and Protective Order of Elks, the Fraternal Order of Eagles, the Loyal Order of Moose, the Independent Order of Odd Fellows, the Oregon State Grange, the American Legion and the Veterans of Foreign Wars."
ORS 307.134 (defining "fraternal organization" for the purpose of exemption from property taxes). Similarly, social organizations such as the Salvation Army, United Way, YMCA, and YWCA could have been contemplated by the legislature when it used the phrase "fraternal or social organization." Moreover, there are any number of plausible definitions that exist along with those alternatives. It is apparent from all of above possibilities that ORS 90.110(3) is ambiguous because its terms are susceptible to more than one reasonable interpretation.
Indeed, the uniform act on which ORLTA was patterned was designed to be "somewhat vague," Comment, The Evolution of the Oregon Residential Landlord and Tenant Act, 56 Or. L. Rev. 655, 665 n. 59 (1977), and the drafters of the uniform act "tried not to be too detailed [and] felt that much should be left to the courts in developing the details of a landlord/tenant relationship," Minutes, Senate Local Government and Urban Affairs Committee, SB 159, Feb. 1, 1973, 2 (statement of James Clarke, member, National Conference of Commissioners on Uniform State Laws). In effect, the ambiguity in the phrase "fraternal or social organization" amounts to a legislative delegation of the statute's meaning to the courts. However, that delegation is not unfettered. Any meaning *1199 developed by us must be consistent with the legislature's overall intent.
Given that ORS 90.110(3) is ambiguous, I turn to its legislative history. There is scant history of the Oregon legislature's own intentions. However, a commentary to a uniform act that is enacted by the Oregon legislature is part of the act's legislative history. State of Oregon DCS v. Anderson, 189 Or.App. 162, 169, 74 P.3d 1149, rev. den., 336 Or. 92, 79 P.3d 313 (2003). As stated above, ORS 90.110(3) finds its source in the Uniform Residential Landlord and Tenant Act. The commentary to the uniform act states that the act "is not intended to apply where residence is incidental to another primary purpose[.]" Uniform Residential Landlord and Tenant Act § 1.202 Comment, 7B ULA 539 (2000). The majority contends that the commentary's reference that the act is not intended to apply where occupancy or residence is incidental does not apply to any of the subsections of ORS 90.110 other than subsection (1). 196 Or.App. at 732-33 n. 3, 103 P.3d at 1188 n. 3. However, there is nothing in the commentary's language that expressly limits its reference to subsection (1). Indeed, the Commentary suggests otherwise by expressly referring to "athletic club[s]" as one kind of exempt fraternal or social organization, thereby distinguishing such organizations from arrangements where occupancy or residency is the primary purpose of the arrangement. In summary, the suggestion from the available legislative history is that the legislature intended the exceptions to ORLTA to be limited to arrangements where residence or occupancy is not the primary object of the arrangement. However, that suggestion may not be strong enough to preclude the doubt that the ambiguity in the words "fraternal or social organization" in ORS 90.110(3) raises.
Under such circumstances we are required to undertake a third-level PGE analysis, see PGE, 317 Or. at 612, 859 P.2d 1143, to ascertain what the legislature would have intended if it had contemplated the facts of this case. We can be confident; the legislature would not have intended that ORS 90.110(3) produce results that are "inconsistent with the apparent policy of the legislation as a whole." State v. Vasquez-Rubio, 323 Or. 275, 282-83, 917 P.2d 494 (1996). With that guidance, we turn back to the whole of ORS 90.110.
Legislative intent may be indicated by common threads in all the exemptions in ORS 90.110. For example, ORS 90.110(1) excludes an arrangement between an institution that exists to provide particular kinds of service to tenants where residence at the institution is secondary to the provision of that service. ORS 90.110(2) excludes short-term occupancy by a purchaser of real property prior to the closing of a sale. That occupancy must be for less than 90 days, or the relationship will be covered by ORLTA. Thus, under that exception to ORLTA, the residency is secondary to the real estate sale. Similarly, ORS 90.110(4), ORS 90.110(5), and ORS 90.110(6) cover short-term arrangements when the actual residency in those kinds of tenancies is secondary to the primary purpose of the tenancy. But if the tenancies described in subsections (4) and (5) exceed 30 or 45 days, respectively, then those types of arrangements are covered by ORLTA.[3] Those exceptions to the exceptions in the ORLTA further show a legislative intent to focus on the primary object of the arrangement. Similarly, ORS 90.110(7) excludes residence by employees in the premises in which they work where that occupancy is conditioned upon continued employment, and ORS 90.110(8) excludes occupancy by condominium owners and those who hold a proprietary lease in a cooperative. Finally, ORS 90.110(9) excludes occupancy subordinate to agricultural-related purposes.
One thing is common to all of the above exemptions: they apply to particular kinds of occupancies and residencies where the occupancy is subordinate to another primary purpose. That common thread leads to the conclusion that the legislature intended to exclude certain rental arrangements in which occupancy was secondary to another primary purpose of the arrangement specified in the exception, as the majority itself observes. When that expression of legislative intent is considered in light of the *1200 overall purposes of ORLTA, the breadth of the majority's construction of the term "fraternal" as "groups of people organized for a common purpose or goal" becomes untenable because it fails to differentiate between the primary and secondary objects of such arrangements. Taken to its logical extension, the majority's reasoning means that all kinds of groups of people fall within the exception in subsection (3) of the statute; it would exclude for instance, groups of people whose primary object in living together is because they want to live in a particular kind of housing, e.g., low cost, smoke free, alcohol free, drug free, urban, or rural. In those arrangements, the occupancy is not secondary to the benefits of the relationship; rather, the benefits of the occupancy in such arrangements are the primary objects of the arrangement. Here, too, there is no evidence that peer counseling was the primary object of plaintiff's occupancy or residency in Oxford House-Ramona. In sum, while the majority acknowledges that the exclusions in ORS 90.110 exempt arrangements when the primary purpose of the relationship between the parties is something other than a landlord-tenant relationship, see 196 Or.App. at 730-31, 103 P.3d at 1186-87, it fails to apply that understanding to the facts of this case where low-cost housing is, as supported by uncontroverted evidence in the record, the primary object of the arrangement between plaintiff and defendants.[4]
That same analytical flaw also exists in the majority's interpretation of the words "social organization" in ORS 90.110(3), which it interprets to refer to groups that are "concerned with the welfare of human beings as members of society." 196 Or.App. at 734-35, 103 P.3d at 1188-89 (internal quotation marks omitted). Many groups are concerned with the welfare of human beings as members of society to some degree. Again, such an expansive definition thwarts the intended broad application of ORLTA to regulate all landlord-tenant arrangements. Furthermore, it ignores the scheme of ORS 90.110, which excludes a number of rental arrangements in which the tenant's residence or occupancy is secondary to the primary purpose stated in the exceptions. Nonetheless, the majority asserts that "Oxford House's primary purpose is to assist addicts in recovery." 196 Or.App. at 736, 103 P.3d at 1190. But that assertion is belied by the uncontroverted evidence that defendants in this case furnish no therapy or counseling services to their occupants. Rather, Oxford House's purpose, according to the record in this case, is to furnish low-cost housing so that its residents can personally address their addictions in a drug-free living environment.
Finally, the majority posits that its construction of the term "social" is consistent with the meaning given to that term in a Connecticut statute in YMCA of Stamford v. Bentley, 37 Conn.L.Rptr. 397 (Conn.Super.Ct.2004). But in that case, the court based its decision that the YMCA was a social organization in large part on the YMCA's charter, which declared that the primary purpose of the YMCA was to "`carry out various charitable projects for the religious, social, and educational development of its members.'" In contrast to those facts, the record in this case establishes that residence at Oxford House-Ramona is not secondary to defendants' social purposes. Indeed, in its manual, Oxford House declares that "Oxford House has as its primary goal the provision of housing and rehabilitative support for the alcoholic who wants to stop drinking and stay stopped." In a discussion of that primary goal, the manual states, "Oxford House is group housing." (Emphasis added.) With those statements in mind, the puzzle of whether defendants fit within the meaning of the ambiguous ORS 90.110(3) can be resolved in light of the general legislative intent demonstrated by ORS 90.110 and *1201 ORLTA as a whole. It seems unlikely that the legislature would have intended to enact a specific exception with strict requirements in ORS 90.110(1) and then create an accompanying ambiguous exemption that permits an organization to evade the requirements imposed in the previous exception. That observation becomes particularly persuasive in light of the broad application of ORLTA and the corresponding legislative policy to limit its exceptions to arrangements where residence is not primary.
In summary, any interpretation of the words "fraternal or social organization" must be consistent with the underlying policies of ORLTA. Those governing policies are the broad regulatory policy of the act as a whole and the constraint on the scope of the exceptions to the act to arrangements where residence is not the primary object of the arrangement. Defendants do not qualify for the exceptions in ORS 90.110(1) and (3) because their characteristics do not satisfy the requirements of either subsection in light of the statutes' underlying policies. We lack the authority to create any other exception to the act; that task belongs exclusively to the legislature, and for purposes of this case, it means that defendants' argument can only be properly made to the legislature.
For those reasons, I dissent.
BREWER, C.J., and WOLLHEIM, J., join in this dissent.
NOTES
[1] The dissent asserts that the exclusions in ORS 90.110 "ought to be strictly and narrowly construed" to avoid undermining the purposes of ORLTA. 196 Or.App. at 748, 103 P.3d at 1196 (Edmonds, J., dissenting). That assertion reflects a discredited presumption that courts formerly used in construing statutes. See generally 2A Sutherland Statutory Construction § 47.11 (5th ed. 1992). If that principle were sound, then the Bill of Rights would have to be strictly and narrowly construed to avoid undermining the function of representative government. At bottom, there is no reason to presume that the policies embodied in the exceptions are more or less important than the policies embodied in the general provisions of the act. Our task is to make sense of them as a whole.
[2] The exclusions listed in the various subparagraphs of ORS 90.110 are not mutually exclusive; nor should the particular categories within each subparagraph be read to be mutually exclusive. Just as a nursing home may be an institution that provides both medical and geriatric services, and an organization such as an Elk's Lodge can be both fraternal and social, so too can an on-campus fraternity house satisfy the exclusions under both ORS 90.110(1) and (3).
[3] The dissent insists that the answer to that question cannot be determined by consulting the text and context of the statute. It looks instead to legislative history and general maxims of statutory construction. It relies on a comment to the Uniform Residential Landlord and Tenant Act that the act "is not intended to apply where residence is incidental to another primary purpose * * *." Uniform Residential Landlord and Tenant Act § 1.202 comment, 7B ULA 539 (2000). It appears to believe that that statement bears on the proper interpretation of the exemption in ORS 90.110(3); that is, that fraternal and social organizations must have a primary purpose other than housing in order to come within the exemption. As we discuss later in the opinion, we disagree. But we pause at this point to note one aspect of the legislative history cited by the dissent. Only one exemption in ORS 90.110 requires housing to be incidental to another purpose, the exemption in ORS 90.110(1). It is clear from the commentary to the uniform act that the phrase on which the dissent relies applies to only some of the exclusions in ORS 90.110, and the exception for fraternal and social organizations is not one of them. The complete sentence from the comments on which the dissent relies reads: "[The Act] is not intended to apply where residence is incidental to another primary purpose such as residence in a prison, a hospital or nursing home, a dormitory owned and operated by a college or school, or residence by a landlord's employee such as a custodian, janitor, guard or caretaker rendering service in or about the demised premises." URLTA § 1.202 Comment. Furthermore, seven sentences later the commentators provide a comment specific to the fraternal and social organization exception that makes no reference to purposes, primary or otherwise. In sum, the legislative history relied on by the dissent does not shed any insight into the intent behind ORS 90.110(3).
[4] The Connecticut court used Merriam-Webster's Collegiate Dictionary, which defines "social" in a nearly identical manner to Webster's Third New International Dictionary. YMCA of Stamford, 37 Conn.L.Rptr. at 399; compare Webster's at 2161 ("of, relating to, or concerned with the welfare of human beings as members of society") with Merriam-Webster's Collegiate Dictionary 1114 (10th ed. 1993) ("of or relating to human society, the interaction of the individual and the group, or the welfare of human beings as members of society"). The Connecticut court focused on the phrase "the welfare of human beings as members of society."
[5] The dissent maintains that "defendants are not the kinds of institutions that ORS 90.110(1) excludes from ORLTA coverage." 196 Or.App. 750, 103 P.3d at 1197 (Edmonds, J., dissenting). To support that conclusion, it relies on Gray v. Pierce County Housing Authority, 123 Wash.App. 744, 97 P.3d 26 (2004). There the court concluded that a public housing authority that provided educational services was not an "institution" under the Washing Residential Landlord Tenant Act. However, the Washington statute is not identical to ORLTA, and the Washington court relied heavily on the difference. The Washington statute exempts
"[r]esidence at an institution, whether public or private, where residence is merely incidental to detention or the provision of medical, religious, educational, recreational, or similar services, including but not limited to correctional facilities, licensed nursing homes, monasteries and convents, and hospitals [.]"
RCW 59.18.040 (emphasis added). The second, italicized half of the Washington provision is absent from ORS 90.110(1). The Gray court viewed those words to limit the types of institutions that could claim the exemption. See Gray, 123 Wash.App. at 758-59, 97 P.3d at 33 ("PCHA asks this court to construe this provision as applying to any `institution' offering residence incidental to providing one or more of the enumerated services. * * *. However, we cannot simply ignore the second half of the provision. The provision, by its plain terms, applies only to institutions similar in kind to those specifically enumerated. Here, PCHA is not an `institution' as the term is used in the statute; its institutional purpose is not to provide educational services." (Emphasis added; internal citation and footnote omitted.)) In the absence of similar language, the Oregon statute cannot be interpreted to include a similar limitation on the types of institutions that are exempt under ORS 90.110(1).
[6] The dissent argues that ORS 90.110(1) requires defendants, as organizations, to provide services similar to counseling and that any such services provided to Oxford House residents are provided by other residents and not by defendants. That argument falsely assumes that there is a separate existence between an Oxford House and its members. An Oxford House is its members. Business associations like defendants can act only through their agents, and here defendants' members are their agents. Plaintiff herself implicitly acknowledges that because her entire theory rests on the fact that, when members of an Oxford House act, it is, in fact, Oxford House acting. She was evicted by other members of an Oxford House. If the actions of their members may be imputed to the defendants when they vote to evict another member, then their counseling-like actions must be imputed as well.
[7] Oxford House Ramona member Shannon Stowell testified at her deposition, "Whenever I feel like I want to use, I know I can go to one of [my fellow members.]"
[8] That excerpt from the record also supports our conclusion that defendants are fraternal organizations within the meaning of ORS 90.110(3).
[9] The dissent disagrees with that conclusion as well, objecting that the primary purpose of Oxford house is "to provide low-cost housing in which individuals can support each other as they recover from addictions." 196 Or.App. at 751, 103 P.3d at 1197 (Edmonds, J., dissenting). The dissent relies for support for that statement on the trial court's written finding that
"Oxford house exists for the sole purpose [of] assist[ing] drug and alcohol dependant individuals in their recovery, the way in which Oxford House does so is to provide drug and alcohol free housing. It is the housing that is central to the relationship."
With respect, the finding actually cuts the other way. The trial court did not find that the primary purpose of Oxford House is to provide low-cost housing. In fact, the trial court found, and the record supports, that defendants' sole purpose is to assist addicts with recovery. For example, the first purpose listed in Oxford House, Inc.'s incorporation certificate (which some might call a primary purpose), is "[t]o improve the rehabilitation, industrial, and social condition and environment for recovering alcoholics, by the development of plans and programs for their recovery and rehabilitation and by establishing, operating, and maintaining homes for recovering alcoholics." Granted, housing may be central to that relationship, but it is nonetheless incidental, just as housing is central in a residential geriatric facility yet incidental to the facility's sole purpose of assisting seniors in their daily living.
[1] ORS 90.115 provides:
"This chapter applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state."
[2] The majority takes exception to this understanding. 196 Or.App. at 730 n. 1, 103 P.3d at 1186-87 n. 1. It says, "Our task is make sense of them as a whole." Id. I could not agree more. However, it does not make sense to ascribe a broad regulatory purpose to the legislature and then to negate that purpose by interpreting the statutory exceptions to exceed the boundaries of what the legislature has expressed.
[3] See also ORS 90.100(43); ORS 90.100(45).
[4] The majority attempts to reason itself out of its self-created predicament by asserting that "[t]he primary relationship between parties may be something other than a landlord-tenant relationship even if the primary purpose of the landlord or tenant or both is housing." 196 Or.App. at 737, 103 P.3d at 1190. I confess that I do not understand the majority's reasoning as it relates to the text of ORS 90.110(3). Under ORLTA's language, the nature of the relationship or arrangement between the parties, whether it is a landlord-tenant arrangement or an exempt arrangement, is always determined by the arrangement's primary purpose or object as the majority appears to acknowledge. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264630/ | 236 P.3d 54 (2009)
2009 OK 75
FEATHER SMOKE SHOPS, LLC, Plaintiff/Appellee,
v.
OKLAHOMA TAX COMMISSION, Defendant/Appellant.
No. 106,247.
Supreme Court of Oklahoma.
September 29, 2009.
Rehearing Denied June 1, 2010.
*55 Douglas B. Allen, Larry D. Patton, Oklahoma Tax Commission, Oklahoma City, OK, for Appellant.
Gentner F. Drummond, Anne M. Zimmerman, Tulsa, OK, for Appellee.
OPINION
WATT, J.:
¶ 1 In this case we are asked to determine whether the trial court exceeded its jurisdiction and abused its discretion when it entered a temporary injunction against the State of Oklahoma, by and through the Oklahoma Tax Commission (OTC). The Plaintiff is Feather Smoke Shops, LLC, (Feather) an Oklahoma limited liability company with its principal place of business located in Osage County, Oklahoma. Feather is a tribally licensed retailer of the Osage Nation (Tribe) with a license to sell cigarettes and tobacco products for resale. It is also a holding company for three smoke shops in Osage County[1] and for other shops in different counties. The injunction entered by the trial court prevents the OTC from collecting and enforcing a payment in lieu of excise tax on the sale of cigarettes and tobacco products at Feather's Osage County shops at the rate of $8.58 per carton (.8575 per pack), instead of $2.58 per carton (.2575 per pack), which Plaintiff contends is the correct rate. We find the trial court was without jurisdiction to enter the injunction. We vacate the injunction and remand for further proceedings.
BACKGROUND AND THE ENACTMENT OF 68 O.S. § 346
¶ 2 The dispute in this case arises out of the rights and duties of the parties under the "Tobacco Tax Compact Between the State of Oklahoma and the Osage Nation" (Compact), which became effective December 16, 2003.[2] The authority for the Compact derives from the State Legislature's enactment of 68 O.S. *56 Supp.1992 § 346,(amended 2004),[3] following the United States Supreme Court's decision in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991).[4] The Court considered *57 whether the State of Oklahoma could legally sue the Tribe for taxes on sales of cigarettes and tobacco products, sold either to members or nonmembers of the Tribe, at its tribal stores within Oklahoma. The Court found the doctrine of tribal sovereign immunity prohibited the State from bringing a lawsuit against the Tribe to collect state taxes on sales to either members or nonmembers of the Tribe, absent the Tribe's waiver of immunity or Congressional abrogation of the doctrine. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 510, 111 S.Ct. 905, 910. However, the Court held the Tribe's sovereign immunity did not deprive the State of its authority to tax sales to nonmembers of the Tribe at the Tribe's store. 498 U.S. at 512, 111 S.Ct. at 911. Moreover, the Court reiterated that tribal sellers have an obligation to assist the State in the collection of valid state taxes on sales to nonmembers at Indian stores on reservation lands. Id., citing Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) and Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). Additionally, the Court suggested alternative methods for collection of taxes on sales to nonmembers of the Tribe. One such method was the adoption by the State and Tribe of "a mutually satisfactory regime for the collection of this sort of tax," Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. at 514, 111 S.Ct. at 912, citing 48 Stat. 987, as amended, 25 U.S.C. § 476. In response, our Legislature enacted 68 O.S. Supp.1992 § 346. See § 346(A)(3).[5]
THE COMPACT
¶ 3 The Compact, effective December 16, 2003, provides the Tribe will pay 25% of all applicable excise taxes[6] which were effective as of January 1, 2003, and 100% of all increases enacted by the State after January 1, 2004, with exceptions noted. At the time the Compact was executed, the 25% rate was $2.58 per carton of ten packs ($.2575 per pack). See Compact, ¶ 3.[7] However, the compact provided that the Tribe would not be required to pay the increase in Oklahoma taxes after January 1, 2004, in the following cases:
1. At any of its retail businesses within 20 miles of the Kansas state line until Kansas increases its taxes on tobacco products [emphasis added];
2. At its existing retail business on Highway 99 in Pawhuska and at a future retail business to be located "on the corner of 15th Street and Highway 99" in Pawhuska until Kansas increases its tax on tobacco products;[8] [emphasis added] and
3. On products bought and sold at any of its retail businesses within 10 miles of a retail business which:
(a) was in operation on January 1, 2003,
(b) was owned by a tribe subject to a compact,
(c) under which the Tribe was obligated to pay only 25% of all applicable excise and sales taxes,
until such tribe's compact terminates or is cancelled by mutual agreement of the parties. [emphasis added].
Compact, ¶ 3.
¶ 4 Another provision of the Compact which could affect the rate required from the *58 Tribe is paragraph 16, informally referred to as the "favored nation clause," (FNC). It provides:
16. Should the State at some future date enter into a tobacco tax compact with another Indian tribe with terms more favorable to the other Indian tribe than those in this compact, such more favorable terms may, at the option of the Nation, automatically be incorporated herein.
¶ 5 After the Compact became effective, the Tribe, through its Principal Chief Jim Gray, sent a letter dated December 3, 2004, via FAX to the OTC, advising it of more favorable provisions included in later executed compacts. These compacts contained a lower tax rate for the other tribes which were located within 20 miles of another state's border, as well as more favorable terms for shops within 10 miles of other tribes' shops. In particular, the Chief noted Choctaw Nation smoke shops located within 20 miles of the Texas border, pay $.58 per carton. Because the Choctaw Nation's Compact contains savings clauses identical to those in the Osage Compact,[9] the Chief asserted the Tribe's right to pay the tax at the $.58 per carton rate ($.0575 per pack).
¶ 6 Also noted in the letter were references to later executed compacts between the State and the Cherokee Nation, the absentee Shawnee Tribe, the Iowa Tribe and the Seminole Nation. The alleged "more favorable" provision in the later compacts related to the distance between shops of different tribes, similar to the Osage Compact's provision saving the Tribe from incurring Oklahoma's 2004 tax increase.[10] The Chief advised the OTC that the 10 mile provision in its Compact was enlarged to 35 miles in the compacts mentioned. The letter, admitted as Defendant's Exhibit 6 at the hearing on the injunction, provided as follows:
[S]ubsequent to the execution of the Osage Compact, several tribes signed Compacts under which the ten-mile barrier was extended to thirty-five miles. In particular, the Cherokee Nation Compact executed on February 9, 2004, extends the ten-mile barrier to thirty-five miles for twenty-eight Cherokee smoke shops, presumably because these smoke shops could not come within the ten-mile limit. In addition, the absentee Shawnee Tribe's Compact executed January 14, 2004 also provides for a thirty-five mile barrier for its facility located in Norman, Oklahoma. The other two Shawnee smoke shops are within the ten-mile barrier. I note as well that both the Iowa Tribe and Seminole Nation have thirty-five mile barriers for designated smoke shops. It is our position that the thirty-five mile barrier is automatically incorporated into the Osage Compact pursuant to Section 16[11] of the Compact .... [emphasis added].
. . .
Accordingly, the Tribe is automatically incorporating the thirty-five mile barrier into its Compact for those shops that are unable to come within the ten-mile barrier.
¶ 7 At the hearing, OTC's witness testified, and it is stated in its briefs, that the OTC considered Exhibit 6 an amendment to the Compact, thus incorporating the exception rate ($.58 per carton) and the 35-mile barrier between shops into the Compact.[12] This apparently continued until July 17, 2008, at which time the OTC notified Plaintiff that the applicable rate for Feather and its shops would change from the exception rate *59 ($.0575/pack, $.58/carton) to the "new compact rate" ($.8575/pack, $8.58/carton). The stated reason for the change was the termination of the Pawnee Tribe's compact which resulted in the "non-compact" ($.7725/pack) rate for the Pawnee Tribe.
¶ 8 Plaintiff then filed this declaratory judgment action, pursuant to 12 O.S. Supp. 2004 §§ 1651-1657, alleging the OTC's actions violated the U.S. and Oklahoma Constitutions. Plaintiff also sought injunctive relief, asking the court to order OTC to apply the tax rate of 25% of all applicable excise taxes, Plaintiff's last legal compact rate.
¶ 9 Feather contends OTC's actions violate the compact under the favored nation clause (FNC) provision of the Compact, which would entitle the Tribe's shops to the most favorable tax rate enjoyed by another tribe. Feather contends the most recent such compact is the Kaw Nation Compact.
SUBJECT MATTER JURISDICTION
¶ 10 The above discussion about the Compact is necessary to consider our jurisdictional issue. The OTC alleges the trial court lacked subject matter jurisdiction to enter the injunction and that federal arbitration is required instead. Plaintiff argues the state district court properly exercised jurisdiction and correctly found that the relief ordered was necessary. Oklahoma's jurisprudence undoubtedly acknowledges arbitration as a valid means of settling disputes, as well as the jurisdiction of our state district courts to issue an injunction. In this case, however, the Compact contains an agreement between the Tribe and the State which determines this jurisdictional question.
¶ 11 Paragraph 11 of the Compact provides the following:
Any dispute arising in the interpretation or performance of this Compact, which is not resolved by good faith negotiations within thirty (30) days, shall be subject to binding arbitration. Arbitration may be invoked by either party following the negotiation period should the dispute remain unresolved. Arbitration shall be the exclusive means of resolving such disputes subject only to review by the United States District Court having jurisdiction and venue. When arbitration is invoked, a panel of arbitrators consisting of three (3) members shall be appointed. One shall be appointed by the nation and one by the State. A third shall be appointed by the other two members. The expenses of arbitration shall be born equally by the parties. The arbitrators shall adopt their own procedural rules regarding the arbitration process in conformity with the rules of the American Arbitration Association. [emphasis added].
¶ 12 The role of this Court is to determine whether there is a valid, enforceable agreement to arbitrate the dispute which is governed by principles of state law. Rogers v. Dell Computer Corporation, 2005 OK 51, 138 P.3d 826, citing Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶ 9, 933 P.2d 878, 880. [citations omitted]. No evidence exists that the agreement itself to arbitrate certain disputes is invalid. The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2000) (FAA), applies to contracts affecting interstate commerce. See Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 269, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Under the FAA, the question of the contract's validity as a whole is submitted to arbitration. Rogers v. Dell Computer Corporation, 2005 OK 51, ¶ 13, 138 P.3d 826, 829, citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 405, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). The FAA does not preempt state law unless the Congressional purposes and objectives embodied therein are frustrated. Rogers v. Dell Computer Corporation, ¶ 12, at 829, citing Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 477, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).
¶ 13 In this case, the parties appear to differ as to how to interpret a compact which has incorporated more favorable terms from the compact of another Tribe when the other Tribe's compact has terminated. The OTC contends the assessed tax increase for the Osage Tribe is due to the termination of the Pawnee Nation's compact. At different times the OTC has argued the exception rate *60 ($.58/carton) and the extended mileage barrier (from 10 miles to 35 miles) between shops were incorporated into the Osage compact because of the Pawnee Nation's Compact. However, OTC witness McConville stated the OTC considered the mileage barrier in the Osage Compact to have been amended by Exhibit 6 which incorporated the terms of the Cherokee compact. Exhibit 6 itself purports to amend the tax rate to $.58/carton because of the Choctaw compact. Feather contends the Kaw Nation's most recent compact of July 24, 2008, with a rate of $.2575/ pack, $2.58/carton, should determine its rate.[13] Does the tax rate return to the original rate in the compact, or may the compact be affected by the termination of a totally different Tribe's compact? The proper tax rate issue also certainly affects the Tribe's performance under the compact, as Feather, a licensed retailer, alleges it is unable to compete with shops paying only $.58 per carton, as opposed to its assessment of $8.58 per carton. Moreover, we note the Tribe's compact does not terminate on its own terms until 2013[14] and that the State and the Tribe have not cancelled the compact by mutual agreement. There was also testimony that Kansas had not raised its taxes on tobacco products, a factor which avoids raising the Tribe's rates under the compact. Therefore, a possible interpretation of the Compact is that the original price of $2.58 per carton should be resumed.
¶ 14 As to OTC's other jurisdictional allegations, it argues that it is not the real party in interest because it does not set or levy the tax due; it only collects and enforces the payment of the tax due. It also claims that White Feather, a shop allegedly cancelled on January 18, 2008 at Feather's request, is not the appropriate party to bring the action. However, as noted above, Feather, the Plaintiff, is the holding company for three Osage shops which are affected by OTC's actions. Feather is an Osage licensed tribal retailer, operating by and through its principal, under the jurisdiction of the Osage Nation, and the Compact applies to the Osage Nation's licensees, known as Tribal Retailers. Additionally, the OTC represents the State in this case as the party which enforces the appropriate tax rate. It is, in fact, specifically mentioned in 68 O.S. § 346, in which wholesalers are required to forward to the OTC all invoices of their sales to retailers. Additionally, the amendment to § 346 provides that the OTC "shall" regularly conduct audits of those selling cigarettes and tobacco to the tribes.
¶ 15 We find the resolution of this case is governed by the terms of this Compact. Section 11 requires submitting issues related to the "interpretation or performance" of the Compact to federal arbitration. We therefore hold the trial court did not have jurisdiction to enter the temporary injunction. The Tribe and the State agreed to federal arbitration under these circumstances, and we will not rewrite the compact. In fact, the letter of December 3, 2004, from Chief Gray to the OTC contains an acknowledgment that arbitration is a possibility. The letter provides in the last paragraph, in part:
[I]f you do not agree with our analysis as set forth in this letter, please let me know immediately so that we can attempt to come to a consensus and negotiate in good faith in accordance with Section 11[15] of the Compact. ... [emphasis added.]
¶ 16 The injunction is vacated, and this case is remanded to the trial court for further *61 proceedings in accordance with the views expressed in this opinion.
VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WATT, WINCHESTER, COLBERT, JJ., concur.
REIF, J., concurs in part, dissents in part.
REIF, J., concurring in part; dissenting in part.
¶ 1 I agree that the majority opinion has focused on the pertinent provisions in the Osage Nation Tobacco Tax Compact that are dispositive of the tax rate dispute between the parties. I likewise agree that the majority opinion has identified the circumstances under which disputes arising under the Compact are subject to arbitration. I disagree, however, with the majority's conclusion that the dispute in question is subject to arbitration as provided in the Compact.
¶ 2 I believe the "dispute" is not subject to arbitration because it is not one "arising in the interpretation or performance of th[e] Compact." I reach this conclusion because the undisputed material facts show that the State, through the actions of the Oklahoma Tax Commission, is simply in breach of the unambiguous "favored nations" provision of the Compact. This provision grants the Osage Nation the "option" to "automatically ... incorporate" more favorable terms of a tobacco tax compact with another Indian tribe into the Osage Nation Compact. The State, through the Oklahoma Tax Commission, admits that the Osage Nation exercised this "option" and chose to incorporate the favorable terms of the State's compacts with the Cherokee Nation and Choctaw Nation, inter alia. The Oklahoma Tax Commission recognizes that this action constituted an amendment to the Compact, including the "exception rate" of $.58 per carton. Nothing in the Compact ties or burdens such amendment of the Compact to the continuation of any comparable terms that may have been previously incorporated from another compact, like the Pawnee Compact in question.
¶ 3 In my opinion, there is no uncertainty about the meaning of any term in the Compact, nor any doubt about the performance due under any term. There is simply unjustified refusal of the Oklahoma Tax Commission to perform its ministerial duties under the Compact and a suit in district court for injunctive relief is one of the appropriate remedies for such a breach of contract. Under the record presented, I do not believe the trial court either exceeded its jurisdiction or abused its discretion in issuing the injunction.
NOTES
[1] At issue here are Feather's shops in Osage County, White Feather Smoke Shop in Sand Springs and Little Feather Smoke Shop in Hominy, Oklahoma, and Firewalker Smoke Shop in Tulsa, Oklahoma, which is also operated by Feather. Although White Feather is the only shop included on the petition, Feather seeks relief for all three shops, claiming OTC's actions had adverse effect on the other two Osage shops. Feather's witness testified that the only licensed retailer of the Tribe at the time of the hearing was Little Feather.
[2] A termination date, subject to certain exceptions, of June 30, 2013, is included in the Compact.
[3] The current statute, 68 O.S. Supp.2004 § 346, is substantially similar to the 1992 statute which was in effect at the time the State and Tribe executed the Compact. The major differences are the addition of § 346(C)(3), giving a penalty to the Tribes for non-compliance with all terms of the Compact; and § 346(D), granting the Tax Commission the authority to conduct regular audits of wholesalers, distributors, jobbers and warehousemen which sell cigarettes or tobacco products to the Tribes. See note 4, infra. The current statute has been referred to by the parties without specific citation.
[4] Title 68, section 346, Oklahoma Statutes (Supp. 2004) provides:
A. The Legislature finds that:
1. Federal law recognizes the right of Indian tribes or nations to engage in sales of cigarettes and tobacco products to their members free of state taxation;
2. The doctrine of tribal sovereign immunity prohibits the State of Oklahoma from bringing a lawsuit against an Indian tribe or nation to compel the tribe or nation to collect state taxes on sales made in Indian country to either members or nonmembers of the tribe or nation without a waiver of immunity by the tribe or nation or congressional abrogation of the doctrine; and
3. The Supreme Court of the United States, in "Oklahoma Tax Commission v. Citizen Band Pottawatomie [Potawatomi] Indian Tribe of Oklahoma", suggested that a state may provide other methods of collection of state taxes on sales of cigarettes and tobacco products made by Indian tribes or nations to persons who are not members of the tribe or nation, such as entering into mutually satisfactory agreements with Indian tribes or nations.
B. It is the intent of the Legislature to establish a system of state taxation of sales of cigarettes and tobacco products made by federally recognized Indian tribes or nations or their licensees, other than such tribes or nations which have entered into a compact with the State of Oklahoma pursuant to the provisions of subsection C of this section, under which the rate of payments in lieu of state taxes is less than the rate of state taxes on other sales of cigarettes and tobacco products in order to allow such tribes or nations or their licensees to make sales of cigarettes and tobacco products to tribal members free of state taxation.
C. The Governor is authorized by this enactment to enter into cigarette and tobacco products tax compacts on behalf of the State of Oklahoma with the federally recognized Indian tribes or nations of this state. The compacts shall set forth the terms of agreement between the sovereign parties regulating sale of cigarettes and tobacco products by the tribes or nations or their licensees in Indian country. All sales in Indian country by those compacting tribes or nations and their licensees shall be exempt from the taxes levied pursuant to the provisions of Section 301 et seq., Section 401 et seq. and Section 1350 et seq. of Title 68 of the Oklahoma Statutes and Sections 349 and 425 of this title, subject to the following terms and conditions:
1. A payment in lieu of state sales and excise taxes, as provided for in said compact, shall be paid to the State of Oklahoma by the tribes or nations, their licensees or their wholesalers upon purchase of all cigarettes and tobacco products intended for resale in Indian country by the tribes or nations or their licensees;
2. All cigarettes and tobacco products sold or held for sale to the public, without distinction between member and nonmember sales, shall bear a payment in lieu of tax stamp evidencing that payment in lieu of state taxes has been paid to the state. State and tribal officials may provide for use of a single joint stamp evidencing payment of both the payment in lieu of tax as specified in a compact pursuant to the provisions of this section and any tax levied by a tribe or nation;
3. In the event that a compacting tribe or nation fails to comply with all terms and conditions of the compact including, but not limited to, requirements to include all state taxes required by the terms of the compact to be collected by the tribe or nation in the price of its cigarettes or tobacco products, the tribe or nation shall not be eligible to receive any payment due from the state pursuant to the terms of the compact for the tax-reporting period during which the noncompliance occurred;
4. Records of all sales of cigarettes and tobacco products to the tribes or nations and their licensees shall be kept by all wholesalers doing business in the State of Oklahoma and shall be made available for inspection by state officials on a timely basis. Copies of all invoices of wholesale sales of cigarettes or tobacco products to tribally owned or licensed retail stores shall be forwarded by the wholesaler to the Oklahoma Tax Commission; and
5. For purposes of a compact pursuant to the provisions of this section, the term "tribal licensee" shall only extend to:
a. members of the tribe or nation, and
b. business entities in which the tribe or nation or tribal members have a majority ownership interest.
D. In addition to any other authority granted by law, the Tax Commission shall regularly conduct an audit of wholesalers, distributors, jobbers and warehousemen selling cigarettes or tobacco products to a federally recognized Indian tribe or nation or a tribally owned or licensed store to determine if the correct amount of tax payable under this act has been collected and to determine compliance with any and all compacts.
[5] See note 4, supra.
[6] This tax rate is known as the "original compact rate." See OAC 710:70-7-8(b)(2), Oklahoma Administrative Code, which provides:
(2) Original compact rate. The original compact rate is 25.75 cents per pack. This rate applies to sales made by tribes or their licensees with an existing compact with the State of Oklahoma in which the tax rate is specified as twenty-five percent (25%) of the rate applied to non-tribal sales.
[7] The Compact also provides that the increase in tax under the compact will not be effective until the effective date of the increase in tax for non-tribal retailers.
[8] Once the increase is effective, the Tribe shall pay on all sales within 20 miles of the state line the lesser of:
a. Increases enacted by Oklahoma after January 1, 2004; or
b. A sum equal to increase in tobacco taxes by Kansas which are applicable to non-tribal sales in Kansas.
[9] See paragraph 3, supra, of this Opinion.
[10] See paragraph 3, supra, of this Opinion.
[11] Paragraph 16 of the Compact is set out at ¶ 4, supra, of this Opinion.
[12] Janine McConville testified in her capacity as a "revenue unit manager" with the OTC. She testified that based on the OTC's receipt of Exhibit 6 and consultation with the Governor's office, the OTC "allowed the Favored Nation clause of the Cherokee [compact] to be used for the Osage, which adjusted several of the Osage shops to from a 10-mile radius to, I believe it's a 35-mile radius of any tribal outlet that has a better rate from another nation." [emphasis added]. She agreed that Exhibit 6 was treated as an amendment to the Osage Compact.
Counsel for the OTC stated at the hearing: "This shop was, until July 17, an exception rate retailer. It got that exception rate pursuant to the compact by being within a certain distance of an old or original rate location of another tribe. In this case, it was the Pawnee." [emphasis added].
[13] The OTC issued a notice to wholesalers on July 25, 2008, advising them that the new Kaw Nation Compact was designated as the "State/Tribal Kansas Border" rate of $0.2575/ pack of 20 cigarettes. Feather presented this notice as Plaintiff's Exhibit 2.
[14] Paragraph 12 of the Compact provides:
12. This agreement shall terminate on June 30, 2013. At the end of said term, this compact shall continue in full force and effect for consecutive terms of one (1) year, unless either party hereto gives to the other written notice that the compact shall terminate at the end of the present term, provided that such notice is given at least six (6) months prior to said termination. Nothing in this Compact shall prevent the parties by mutual agreement from establishing an earlier termination date or otherwise modifying this agreement.
[15] Section 11 of the Compact is set out in full at paragraph 11 of this Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264649/ | 879 F.Supp. 640 (1995)
Diane G. EMERY and Patricia L. Young, Plaintiffs,
v.
CARAVAN OF DREAMS, INC., Defendant.
Civ. No. 3:94-CV-0985-H.
United States District Court, N.D. Texas, Dallas Division.
February 1, 1995.
*641 Patricia Young, Michael P. Metcalf, Law Office of Windle Turley, Dallas, TX, for plaintiffs.
Diane G. Emery, pro se, Colleyville, TX.
*642 Susan H. Sorrells, Roger C. Diseker and Edmund G. Johnson, Kelly Hart & Hallman, Fort Worth, TX, for defendant.
ORAL OPINION BY THE COURT
SANDERS, District Judge.
The Court is in session to announce its decision in a civil case styled Diane G. Emery and Patricia L. Young v. Caravan of Dreams, Inc., Civil Action No. 94-CV-0985-H on the Court's docket.
Plaintiffs brought this lawsuit against Caravan of Dreams under § 302(b)(2)(A)(i) of Title III of the Americans With Disabilities Act, 42 U.S.C. § 12182(b)(2)(A)(i), which I will refer to as the ADA. Plaintiffs claim that Defendant discriminated against them by maintaining a policy of allowing smoking in the musical entertainment venue that Defendant operates in Tarrant County in the City of Fort Worth. Plaintiffs seek an injunction ordering Defendant to ban smoking in the theater whenever Plaintiffs wish to attend a show there.
Based on the evidence adduced at trial, the relevant statutes, the regulations, the comments to the regulations from the Department of Justice, the representations of counsel, the notes of the Court, and the notes of the law clerk, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. The Court adopts the stipulations in the Pretrial Order to the extent that those stipulations are consistent with these findings.
2. Plaintiff Emery has cystic fibrosis, a progressive genetic disease of the respiratory and digestive systems. As a result of her disability, she is substantially impaired in the major life function of breathing.
3. Plaintiff Young is allergic to tobacco, ragweed, pollen, and dust mites. She has also been diagnosed as having asthma.
4. Plaintiff Young leads a normal life, according to Dr. Michael. She has worked continuously as a flight attendant for American Airlines for twenty-nine years. She is learning how to roller blade. Her allergies and asthma do not substantially impair any major life function.
5. Cigarette smoke is an irritant to mucous membranes in general, and to respiratory tissue in particular. It increases mucus production in the lungs, and patients with cystic fibrosis have a difficult time moving mucus out of their lungs. The presence of mucus in the lungs increases the chance that opportunistic bacterial infections will develop. Most cystic fibrosis patients die from opportunistic bacterial infections.
6. Plaintiff Emery's physician has advised her to avoid cigarette smoke whenever possible. After two or three breaths of cigarette smoke, Plaintiff Emery begins to wheeze and cough; this lasts from twenty to twenty-five minutes.
7. For non-smoking patrons, Defendant provides a non-smoking section in the first two rows of seats in the theater.
8. Defendant's policy of allowing smoking in all areas of the theater except for the seats reserved for non-smoking patrons has the effect of denying Plaintiff Emery access to Defendant's musical venue.
9. The only accommodation that would allow Plaintiff Emery to have access to Caravan of Dreams is a complete ban on smoking when Plaintiff attends a performance.
10. Banning smoking in the Caravan of Dreams would have a major adverse economic effect on the Defendant, and would endanger the Defendant theater's viability. Nationally known performers would not play at the club if smoking were not permitted.
11. Defendant's only requirement for admission to a show is possession of a ticket.
CONCLUSIONS OF LAW
I turn now to my conclusions of law, and I split them into two parts.
A. Background Conclusions
1. Defendant Caravan of Dreams is a public accommodation under the ADA. See 42 U.S.C. § 12181(7)(C).
2. Plaintiff Young is not a person with a disability as that term is defined in the *643 ADA. See 42 U.S.C. § 12102(2). Although Young has a physical impairment, that impairment does not substantially limit any major life activity as required by the ADA.
3. The regulations promulgated under the ADA define major life activities as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." See 28 C.F.R. § 36.104, p. 469 (1994). As the Justice Department's explanation of the regulations notes, whether or not an allergy to cigarette smoke can be termed a disability within the meaning of the ADA requires a case-by-case analysis of whether the respiratory or neurological functioning is so severely affected that it impairs a major life function. See 28 C.F.R. Pt. 36, App. B., p. 585.
4. Testimony showed that Plaintiff Young is not substantially impaired in her ability to work, recreate, breathe or to have a normal life. Accordingly, she is not disabled within the meaning of the ADA. See, e.g., Heilweil v. Mount Sinai Hospital, 32 F.3d 718 (2nd Cir.1994), which held that a Rehabilitation Act plaintiff with asthma was not disabled because she could exercise normally and could work.
5. Plaintiff Emery is a person with a disability as that term is defined under the ADA. She is substantially impaired in the major life activity of breathing.
B. Discrimination Conclusions
1. The findings and conclusions previously made do not end the Court's inquiry. The Court must still determine whether Emery has been discriminated against on account of her disability. See 42 U.S.C. 12182(a).
2. Section 302(a) of Title III of the ADA establishes a general rule that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation...." 42 U.S.C. § 12182(a). The Act then goes no to define the general as well as the specific types of discrimination that are prohibited.
3. Section 302(b)(1)(D) of the Act states that "[a]n individual or entity shall not directly or through contractual or other arrangements, utilize standards or criteria or methods of administration (i) that have the effect of discriminating on the basis of disability," and makes clear that ADA Plaintiffs need not show discriminatory intent to establish a violation. The section, which is based on the Supreme Court's decision in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), establishes that a showing of discriminatory impact is sufficient.
4. However, Congress went on in section 302(b)(2)(A) of the Act to discuss four specific types of discrimination included in the general prohibition in § 302(a), delineating a defense to Plaintiffs' prima facie case in each of these four kinds of discrimination. See 42 U.S.C. §§ 12182(b)(2)(A)(i)-(iv).
5. Plaintiffs here have insisted that their claim is based on § 302(b)(2)(A)(i). That section states that discrimination includes "the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered." 42 U.S.C. § 12182(b)(2)(A)(i).
6. Plaintiffs argue that because Defendant allowed smoking, Defendant has imposed eligibility criteria which screen out persons with severe respiratory ailments. The Court concludes that Plaintiffs' argument amounts to a torturous misreading of the statutory language just quoted, and that it is without merit.
Plaintiffs' argument fails with respect to the term "criteria." No case authority being available, the Court turns first to Webster's New Universal Unabridged Dictionary, which defines criterion as "a standard of judging; any established law, rule, principle or fact by which a correct judgment may be formed." "Criteria" thus implies the necessity of making a judgment, and because judging *644 is necessarily an active rather than a passive endeavor, the Court views the quoted section as applying only to those rules or policies that are or could be used to make a specific or conscious decision as to whether or not to permit an individual or individuals to have access to goods, services, facilities, privileges, advantages, or accommodations which are being offered in this case by Defendant.
The Department of Justice commentary on the regulations supports the reading and analysis which I have just given. The Justice Department stated that it would violate the regulation implementing this section to "bar, for example, all persons who are deaf from playing on a golf course or all individuals with cerebral palsy from attending a movie theater, or limit the seating of individuals with Down's syndrome to only particular areas of a restaurant." 28 C.F.R. Pt. 36, App. B, p. 605. Each of these decisions would involve a conscious decision directed at who will have access to the services offered by the public accommodation.
The smoking policy in question in this case clearly does not fall within the Court's construction or a fair analysis of § 302(b)(2)(A)(i). The only criterion for eligibility or access to Defendant's theater is the possession of a ticket. Plaintiffs are therefore not entitled to recover under § 302(b)(2)(A)(i).
7. Plaintiffs' suit appears to come within the provisions of § 302(b)(2)(A)(ii), which provides that discrimination includes "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations." 42 U.S.C. § 12182(b)(2)(A)(ii).
As I understood Plaintiffs' testimony and evidence, a modification of Defendant's smoking policy would be necessary in order for Plaintiffs to take advantage of Defendant's facilities. Plaintiffs requested that Defendant modify its policy, and Defendant refused to do so. Plaintiffs do not base their case on a violation of § 302(b)(2)(A)(ii). I cover it, however, because it's another possibility here.
In the Court's view, even if Plaintiffs had relied on Section 302(b)(2)(A)(ii), their claim would fail because the section provides that a failure to make necessary modifications to policies is not discrimination under the ADA, when such modifications would fundamentally alter the services offered. It should be noted that there is some similarity between this provision and a similar phrase in the section under which Plaintiffs brought their case.
The "fundamental alteration" test is rooted in the Supreme Court's opinion in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), a Rehabilitation Act case. There the Court held that a college was not required to modify its clinical nursing program by converting it to a program of purely academic classes to accommodate a woman with a hearing impairment. The Court held that such a modification would amount to a "fundamental alteration" in the nature of the program, which was more than the Rehabilitation Act required. I understand that preceded the ADA, but it's a reference to the same phrase which makes it important to the Court.
8. Defendant's President testified that banning smoking would have a major economic impact and would result in major national bands not coming to play at Caravan of Dreams. This testimony was not contradicted. The uncontroverted evidence is that the requested modification would endanger Defendant's viability as a business, and such modifications are not required. See New Mexico Ass'n For Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir.1982), which held that a program modification is not required under the Rehabilitation Act if the modification would "jeopardize the overall viability" of the program at issue.
SUMMARY
Plaintiff Young is not an individual with a disability. Plaintiff Emery is an individual *645 with a disability. Defendant is entitled to judgment because Plaintiffs have not established a violation of the ADA. Any finding may be deemed a conclusion. Any conclusion may be deemed a finding. The Court will enter a take-nothing judgment.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354418/ | 226 S.E.2d 225 (1976)
30 N.C. App. 91
Debra K. WRIGHT
v.
WILSON MEMORIAL HOSPITAL, INC.
No. 7610SC84.
Court of Appeals of North Carolina.
July 7, 1976.
Certiorari Denied September 1, 1976.
*226 Brenton D. Adams, Raleigh, for plaintiff-appellant.
Smith, Anderson, Blount & Mitchell by James D. Blount, Jr., and James G. Billings, Raleigh, for defendant-appellee.
Certiorari Denied by Supreme Court September 1, 1976.
CLARK, Judge.
Plaintiff, contending that the trial court erred in granting defendant's motion for summary judgment, maintains that the evidence does not indicate that plaintiff is an "employee" under the Workmen's Compensation Act as a matter of law.
Under G.S. 97-2(2), an "employee" for purposes of Workmen's Compensation includes ". . . every person engaged in an employment under any . . . apprenticeship, express or implied, oral or written . . .." (Emphasis supplied.)
A critical reading of this record indicates as a matter of law that the participants in this laboratory assistantship program, including this plaintiff, are acting as "apprentices" undergoing on-the-job training and hence should be considered employees subject to the provisions of Workmen's Compensation. Thus, plaintiff's rights and remedies, if any, lie solely within the provisions of the Act, and she has no civil remedy available to her. G.S. 97-10.1.
In an analogous case, the Appellate Division of the New York Supreme Court held in Galligan v. St. Vincent's Hospital of City of N. Y., 28 App.Div.2d 592, 279 N.Y.S.2d 886 (1967), that a student nurse, injured on the job in defendant's hospital, was an apprentice for purposes of New York's Workmen's Compensation Act. In Galligan, the plaintiff nurse basically received room and board, and laundry privileges; the New York Court held that this plaintiff had been ". . . rendering a service to the hospital for its pecuniary gain at the time of the accident, under circumstances that made her status similar to that of an apprentice. An apprentice renders services to a master in a trade for the purpose of learning the trade, receiving no remuneration outside of his board and lodging, although the master receives payment for the services rendered by the apprentice." 279 N.Y.S.2d, at 889.
The job status of apprentice medical-related personnel is highly problematic and usually must be determined not only on a case-by-case basis but also with special regard to relevant statutory provisions. Though possibly and seemingly incongruous, a lab technician trainee could be considered a student for some purposes and an employee for others. In this regard, we are aware of the recent National Labor Relations Board decision in Cedars-Sinai Medical Center and Cedars-Sinai Housestaff Association, 223 N.L.R.B. No. 57 (March 19, 1976), wherein the Board in a four to one decision held that interns, residents and clinical fellows were "primarily students" and consequently not employees subject to the Labor *227 Act's collective bargaining provisions. We must consider this decision in the light of the unique history and purpose of the National Labor Relations Act in treating the collective bargaining process and in the light of the educational programs for interns, residents and clinical fellows in hospitals affiliated with medical schools, which programs are fully accredited by the Council on Medical Education of the American Medical Association and by the various specialty boards. Sub judice, we are concerned with coverage under the Workmen's Compensation Act of trainees who learn primarily from work in a hospital affiliated with a technical school the practical and technical skills required for employment in their training specialty. We find these trainees not to be primarily students, but rather to be apprenticeship employees within the meaning of the Workmen's Compensation Act.
Though not considered in deciding this case, it appears from the record on appeal that plaintiff was covered under the Workmen's Compensation insurance policy issued to the defendant. The agreement between Holding Technical Institute and defendant hospital contained no provision requiring either party to effect workmen's compensation insurance; nor did it contain any indemnification provision to secure defendant against any loss or damage resulting from trainee injury.
The trial court's entry of summary judgment for defendant is
Affirmed.
BROCK, C. J., and BRITT, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354356/ | 226 S.E.2d 835 (1976)
30 N.C. App. 387
Lamar GUDGER, Individually, and Lamar Gudger, as the sole surviving partner of Gudger & Sawyer, a partnership
v.
TRANSITIONAL FURNITURE, INC. and Henry James, Jr.
Nos. 7628SC49, 7628SC504.
Court of Appeals of North Carolina.
August 4, 1976.
*836 Adams, Hendon & Carson, by George Ward Hendon, Asheville, for plaintiff.
James, Williams, McElroy & Diehl, by James H. Abrams, Jr., Charlotte, for defendant James.
BROCK, Chief Judge.
Until January 1975 plaintiff's law firm represented Transitional Furniture, Inc. and its president, Murl Whitener, in several matters involving litigation. In January 1975, at plaintiff's suggestion, Transitional discharged plaintiff and employed defendant James to handle its legal affairs. Defendant James effected a settlement of a fire insurance claim by Transitional. Transitional is alleged to be insolvent.
Defendant offered affidavits in support of his motion for summary judgment. The affidavit of Murl E. Whitener, chief executive officer of Transitional, states: that defendant James effected a settlement of Transitional's fire insurance claim for $100,000.00; that "I instructed Mr. James to effect a proportionate settlement with the creditors of Transitional, but instructed him not to pay Mr. Gudger any amount, as that is what his firm's services were reasonably worth"; that "I did authorize Mr. James to make some provision for paying Mr. Gudger's expense statement of $1,112.88, but only after some persuasion from Mr. James." The affidavit of defendant James states: "At all times since January of 1975 I have been an attorney in an attorney-client relationship with Transitional; at no time have I nor any attorney employed by James, Williams, McElroy & Diehl, P.A., promised to pay or see to payment of plaintiffs' alleged fee; at no time have I been authorized by Transitional to pay plaintiffs' alleged fee; I was specifically instructed by Transitional not to pay plaintiffs' alleged fee, as Transitional considers it not due and owing; I have no assets of Transitional under my control."
In opposition to defendant James' motion for summary judgment, plaintiff offered *837 his own affidavit. Plaintiff's affidavit purports to support his claim against Transitional, but in no way does it purport to support his claim against defendant James. Plaintiff offered no evidence to support his claim against defendant James.
The purpose of the summary judgment rule is to provide an expeditious method of determining whether a genuine issue as to any material fact actually exists and, if not, whether the moving party is entitled to judgment as a matter of law. Rentals, Inc. v. Rentals Inc., 26 N.C.App. 175, 215 S.E.2d 398 (1975). Unsupported allegations in the pleadings are insufficient to create a genuine issue as to a material fact where the moving adverse party supports his motion by competent evidentiary matter showing the facts to be contrary to that alleged in the pleadings. Blackmon v. Decorating Co., 11 N.C.App. 137, 180 S.E.2d 396 (1971). "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." G.S. 1A-1, Rule 56(e).
The only claim asserted by plaintiff against defendant James is by way of allegations on information and belief contained in the complaint. These allegations were not supported in any way at the summary judgment hearing. Standing alone, they are insufficient to overcome the competent evidence offered by the movant showing the facts to be contrary to those alleged. Summary judgment was properly entered for the defendant James.
Affirmed.
HEDRICK and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354382/ | 711 P.2d 92 (1985)
In re Cherie Anne BOMGARDNER.
No. 61329.
Supreme Court of Oklahoma.
July 16, 1985.
Order Correcting Votes Cast February 25, 1986.
Robert G. Perrine, Messrs. Talley, Perrine & Smith, Norman, for appellants.
Warren H. Crane, Lawton, for appellee.
*93 OPALA, Justice.
The dispositive issue for review is whether a grandparent's claim for access and companionship of their deceased daughter's offspring, which arose before it became remediable under 10 Ohio St. 1981 § 5,[1] is actionable under that section. We answer in the affirmative and hold that because the legislature intended for the 1981 amendment to apply to all grandparental claims of access and to prevent the offspring's alienation from the grandparents *94 when one parent is deceased, the district court erred in denying the claim by its judgment on the father's demurrer to the petition.
The grandparents' daughter, killed by her husband, was survived by a one-year old child. After the mother's death the child's father refused to allow them access to her. The grandparents brought this suit, asserting that they had a statutory claim to the companionship of their grandchild under 10 Ohio St. 1981 § 5. The father demurred to the petition. He asserted, and now argues here, that the grandparents' claim is governed by the provisions of 10 O.S.Supp. 1978 § 5,[2] the statute in effect at the time of the mother's death. The 1978 act, the father asserts, had been interpreted in Julien v. Gardner[3] to grant grand-parental access only where both of the child's parents are deceased or if they are divorced. The trial court rendered judgment for the father on his demurrer, and the grandparents bring this appeal.
Extant case law has confined grandparental claims of access to those conferred by statute.[4] While our pronouncement in this cause is based upon general principles of statutory construction, our mission is not only to ascertain legislative intent from a series of amendments § 5 has undergone, but also to impart some degree of harmony and consistency to the manifested statutory design.[5]
I
HISTORY OF 10 Ohio St. 1971 § 5
With the 1971 amendment of § 5, grandparents were given standing to assert a claim for access to their offspring only when one or both parents is deceased.[6] A 1975 amendment extended the grandparents' claim of access if the parents of the child were divorced.[7]
This court interpreted § 5 in the Matter of Fox,[8] decided in 1977. There, the children were adopted by the paternal grandparents after their son, the children's natural father, had given his consent following the death of the children's mother. The maternal grandmother sought and was granted access to her grandchildren. The trial court's order was reversed because the statute did not provide for grandparental access in the case of adoption.[9]
To remove the textual impediments found to be present in Fox, the legislature amended § 5 in 1978 to provide for grandparental claim of access when "both parents are deceased or if they are divorced". Paragraph 3 of the 1978 version authorized grandparental access if one natural parent is deceased and the surviving natural parent remarries, with the added proviso that any subsequent adoption proceeding will not terminate the grandparental rights of the decedent's parents unless so ordered by the trial court.[10]
*95 In 1981 this court promulgated Julien v. Gardner,[11] where the grandparents asserted a claim for access to their deceased daughter's offspring then in the custody of their father. The opinion held that the 1978 version of § 5 no longer sanctioned grandparental access when only one parent was deceased.[12] In the wake of Gardner § 5 was again amended in 1981 to provide for visitation when one or both parents is deceased.[13]
Lastly, in 1982, we held in Matter of K.S., T.W. & G.S.[14] that grandparents could not assert a claim for access when their child's parental rights had been terminated. In response to this pronouncement, the legislature amended § 5 in 1984 by adding paragraph C to provide for access by the grandparents whose child's parental rights had been terminated.[15]
As expressed by the First Circuit Court of Appeals, "it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before".[16] The manifest objective of the series of amendments was to make alienation from grandparents remediable in all the described circumstances. The primary goal of this court in construing statutory enactments is to carry into effect the intent of the legislature.[17]
II
REMEDIABILITY OF CONDITIONS IN EXISTENCE BEFORE A REMEDY FOR THEIR CORRECTION CAME TO BE ENACTED
Although statutes are generally presumed to operate prospectively and not retroactively,[18] this presumption does not defy rebuttal if the purpose and intention of the legislature to extend the benefit of a statute to situations then in existence are expressly declared or are necessarily implied from the language used.[19] Words alone are not the only decisive factor in resolving the issue. It is not necessary for a statute expressly to state that it is intended to remedy existing conditions if such an intention can be obtained by viewing its purpose and the method of its enactment. The presumption against retrospective application stands subordinated to the most fundamental rule of construction that mandates an interpretation which will effectuate *96 the legislative design.[20] In short, where the legislature has not explicitly set forth what it intended, the presumption against retroactivity should not be followed in complete disregard of factors that may give a clue to the legislative intent. Only if we were to fail in detecting legislative intent after looking at all the available indicia, would the presumption of prospectivity operate.[21] In the presence of indicia that strongly militate in favor of the statute's application to existing conditions the father must do more than simply rely on the presumption against retroactive application.
According to the father, the relief affordable by § 5 must be confined to grandparental complaints which arose after they became remediable by that section; claims that owe their existence to an event which occurred before a remedy for its correction came to be enacted into law are to remain nonactionable. In essence, the father maintains that because at the time of the mother's death the critical remedy-triggering event the grandparents had no recognized statutory claim to access, he now has a "vested right" in the continued state of his child's alienation from its grandparents. The constitutional shield from impairment or invasion of a person's "accrued, acquired or established" interest by after-enacted legislation is extended to "a matured cause of action or some legal authority to demand redress".[22]The father's stake in his child's state of alienation does not fall under the protected rubric. He has no constitutionally articulable claim to the state of grandparental visitation law that may have been in force when the mother died.[23]
Given the history of 10 Ohio St. 1971 § 5, we conclude that the legislative purpose and design will be accomplished if the 1981 version is applied to situations in existence at the time of its enactment. This view is also consistent with extant case law in which the statute has been so applied.
III
PRIOR APPLICATION OF THE § 5 AMENDMENTS
Extant case law has interpreted the § 5 amendments to govern grandparental quests in existence at the time of enactment. In the Matter of K.S., T.W. & G.S.[24] the parental rights of the mother had been terminated in 1979. There, we gauged the maternal grandparents' claim to access by the terms of 10 Ohio St. 1981 § 5. If the 1981 version were inapplicable, our assessment would have been based on 10 O.S.Supp. *97 1978 § 5, the statute in force when the maternal rights came to be terminated.
In Application of Grover[25] material grandparents were denied custody of their underage offspring in a contest with the father. The mother had died in 1979. In denying custody to the grandparents, who had cared for the child over three years, we noted that our pronouncement "... should not be taken to prohibit the grandparents from proceeding to obtain reasonable rights of visitation to the child provided for in 10 Ohio St. 1981 § 5 ..."[26] Unless the 1981 amendment were invocable by the grandparents in Grover, our holding in Julien v. Gardner[27] would have barred their claim for access to their daughter's offspring.
Lastly, in Looper v. McManus,[28] decided in 1978 by the Court of Appeals, the maternal grandparents' claim of access was allowed. The parents of the child had been divorced since 1972. By the terms of 10 Ohio St. 1971 § 5, parents of divorced parents were not granted visitation privileges. The court thus applied 10 O.S.Supp. 1975 § 5 to allow these grandparents' claim, although it was in existence when the statute came to be enacted.
IV
THE CHILD'S BEST INTEREST
The phrase "best interest of the child" is commonly used by the legislature and this court as a test for granting or withholding visitation.[29] The parental interest is subordinate to the child's best interest.[30] Grand-parental visitation represents a wholesome contribution to a child's welfare. It is not granted solely for the benefit of the adult participant.[31] The grandparents here are the child's deceased mother's parents. The importance of a continued relationship with them is perhaps more significant now than while the mother was living.
Court supervision over the welfare of children is equitable in character.[32] The legislature has never statutorily declared a grandparent's access to the grandchild to be nonactionable. All impediments to the cognizance of a grandparent's claim have been self-imposed. Equity recognizes independent of statute the grandparents' claim to the companionship of their grandchild. Quite often it is an important source of stability and claim in the child's environment.[33]
We hold that the maternal grandparents do have standing both under the statute and in equity to assert a claim for access and companionship of their offspring.
The trial court's refusal to entertain the claim is reversed; the cause is remanded with directions to allow the grandparents to prosecute their quest for visitation. The merits of their claim are to be gauged by application of time-honored equitable considerations.
DOOLIN, V.C.J., and HODGES, LAVENDER, HARGRAVE, WILSON, KAUGER and SUMMERS, JJ., concur.
SIMMS, C.J., dissents.
SIMMS, Chief Justice, dissenting:
The right of grandparents to visit their grandchildren exists only by reason of statute. There is no equitable claim or right to such visitation, and the Court, in my view, errs in stating otherwise.
The statute which governs this right of visitation, is, and must be, that statute which is in effect at the time grandparents file their application for visitation. To hold *98 that the rights are fixed by the date parents die or become divorced would create arbitrary classes of grandparents. Also of course, the continuation of the right depends on the continuation of the statute. If the legislature repealed 10 Ohio St. 1981, § 5, grandparents would no longer have a right to seek visitation, regardless of how the statute read at the time their child died or became divorced.
NOTES
[1] See footnote 13, infra.
[2] See footnote 10, infra.
[3] Okl., 628 P.2d 1165, 1167 [1981].
[4] Julien v. Gardner, supra note 3 at 1166.
[5] Arbitrariness is minimized and the goal of impartiality furthered by harmony and consistency which represent "positive values in a legal system". J. Sutherland, Statutes and Statutory Construction § 53.01 [Sands 4th ed. 1972].
[6] Okla.Sess.L. 1971, c. 82 § 1. The terms of 10 Ohio St. 1971 § 5 provided in pertinent part:
"... [W]hen one or both parents are deceased, any grandparent, who is the parent of the child's deceased parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child. The district courts are vested with jurisdiction to enforce such visitation rights and make orders relative thereto, upon the filing of a verified application for such visitation rights ..."
[7] Okla.Sess.L. 1975, c. 185 § 1. The terms of 10 O.S.Supp. 1975 provided in pertinent part:
"* * * When one or both parents are deceased or if they are divorced, any grandparent, who is the parent of the child's deceased or divorced parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child ..."
[8] Okl., 567 P.2d 985, 987 [1977].
[9] Matter of Fox, supra note 8 at 986.
[10] Okla.Sess.L. 1978, c. 71 § 1. It was provided by 10 O.S.Supp. 1978 § 5 in pertinent part:
"* * * When both parents are deceased or if they are divorced, any grandparent, who is the parent of the child's deceased or divorced parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child ...
When one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings shall not terminate any grandparental rights belonging to the parents of the deceased natural parent unless ordered by the court and after opportunity to be heard, provided the district court deems it is in the best interest of the child."
[11] Julien v. Gardner, supra note 3.
[12] Julien v. Gardner, supra note 3 at 1167.
[13] Okla.Sess.L. 1981, c. 273 § 1. It was provided by 10 Ohio St. 1981 § 5 in pertinent part:
"* * * When one or both parents are deceased or if they are divorced, any grandparent, who is the parent of the child's deceased or divorced parent, shall have reasonable rights of visitation to the child, when it is in the best interest of the child."
[14] Okl., 654 P.2d 1050, 1052 [1982].
[15] Okla.Sess.L. 1984, c. 82 § 1. It is provided by 10 O.S.Supp. 1984 § 5(C) in pertinent part:
"C. If the parental rights of one parent have been terminated and the child is in the custody of the other natural parent, any person who is the parent of the person whose parental rights have been terminated may be given reasonable rights of visitation where the court determines that a previous grandparental relationship has existed between the grandparents and the child and the district court determines it to be in the best interest of the child ..."
[16] Johnson v. United States, 163 Fed. 30 [1st Cir.1908].
[17] Bohn v. Divine, Okl.App., 544 P.2d 916, 919 [1975]; Becknell v. State Industrial Court, Okl., 512 P.2d 1180, 1183 [1973].
[18] Wickham v. Gulf Oil Corp., Okl., 623 P.2d 613, 616 [1981].
[19] Wickham v. Gulf Oil Corp., supra note 18 at 616.
[20] Wickham v. Gulf Oil Corp., supra note 18; In re Marriage of Bouquet, 16 Cal. 3d 583, 128 Cal. Rptr. 427, 429, 546 P.2d 1371, 1373 [1976].
[21] Wickham v. Gulf Oil Corp., supra note 18.
[22] Art. 5 § 54, Okla. Const. Accrued right, as used in § 54, Art. 5, Okla. Const., may be defined as a matured cause of action or some legal authority to demand redress. Mid-Continent Casualty Co. v. P & H Supply, Inc., Okl., 490 P.2d 1358, 1361 [1971]; Barry v. Board of County Commissioners, 173 Okl. 645, 49 P.2d 548, 549 [1935]. "A `vested right' is the power to do certain actions or possess certain things lawfully, and is substantially a property right. It may be created either by common law, by statute or by contract. Once created, it becomes absolute, and is protected from legislative invasion by Art. 5, Secs. 52 and 54 of our Constitution." [emphasis supplied]. Oklahoma Water Resources Board v. Central Oklahoma Master Conservancy District, Okl., 464 P.2d 748, 755 [1969].
[23] [a] A parent's status vis-a-vis its child is not a property right in the general sense but more in the nature of a legal condition which is subject to contest and regulation by the state. Carignan v. State, Okl., 469 P.2d 656, 659 [1970]. [b] In a controversy to determine the effect of legislation changing the age of majority upon the support provisions in a divorce decree entered before the effective date of the enactment, the Arizona Supreme Court held that majority or minority is but a status as distinguished from a vested right fixed at birth which the legislature has full power to reshape or change. A claim to child support was deemed to be no more a vested right than the status upon which it depends. The legislative act silent as to its effect on existing support orders was held to be neither prospective nor retrospective. Rather, it was viewed as operating to affect all minors from and after its effective date. Stanley v. Stanley, 112 Ariz. 282, 541 P.2d 382, 383 [1975].
[24] Supra note 14.
[25] Okl., 681 P.2d 81, 83 [1984].
[26] Application of Grover, supra note 25 at 83.
[27] Julien v. Gardner, supra note 3.
[28] Okl.App., 581 P.2d 487, 489 [1978].
[29] See footnotes 6, 7, 10 and 13 supra. Johnson v. Johnson, Okl., 681 P.2d 78, 79-80 [1984].
[30] Johnson v. Johnson, supra note 29 at 80.
[31] Looper v. McManus, supra note 28 at 488.
[32] Guardianship of Sherle, Okl.App., 683 P.2d 78, 80 [1984].
[33] Looper v. McManus, supra note 28 at 488. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354415/ | 138 Ga. App. 282 (1976)
226 S.E.2d 86
WALKER et al.
v.
HILL-HARMON PULPWOOD COMPANY et al.
51650.
Court of Appeals of Georgia.
Argued January 13, 1976.
Decided March 8, 1976.
Rehearing Denied March 31, 1976.
*284 Farmer, Fanning & Potterfield, Millard C. Farmer, Jr., Steven E. Fanning, for appellants.
Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., for appellee.
STOLZ, Judge.
Georgia Casualty & Surety Co. (insurer) wrote a policy of workmen's compensation insurance covering "Hill-Harman Pulpwood, Inc. [sic] & Vendors while cutting wood for Hill-Harman Pulpwood, Inc. [sic]" (dealer). It is stipulated that a vendor and a producer are considered the same in the common language of the industry; that premiums were collected by the dealer from the producer on the basis of a certain amount per cord of wood cut by the producer; and that Homer Lee Walker was such a producer. On May 12, 1971, Homer Lee Walker was working on property owned by Georgia Kraft Paper Co., hauling pulpwood for his dealer, Hill-Harmon Pulpwood Co., when the forklift he was operating overturned, causing him to sustain injuries which resulted in his *283 death. His widow, appellant, brought this claim for workmen's compensation death benefits. The administrative law judge found that the deceased producer was an independent contractor and not an employee of Hill-Harmon Pulpwood Co., his dealer. The administrative law judge also found that the acceptance of a premium did not estop the insurer from denying liability (Code Ann. § 114-607), relying on Ga. Cas. &c. Co. v. Cochran, 127 Ga. App. 55 (192 SE2d 547). This award was affirmed by the full board and the Superior Court of Meriwether County.
1. We believe the decisions below are erroneous. Ga. Cas. &c. Co. v. Cochran, supra, does not hold that the acceptance of a premium does not estop an insurer, under Code Ann. § 114-607, from denying liability. An examination of that case (Division 1, p. 58) shows that the issue was decided adversely to the claimant due to lack of proper notice.
Code Ann. § 114-607 specifically provides that "an insurer who issues a policy of compensation insurance to an employer not subject to this Title shall not plead as a defense that the employer is not subject to the Title." In this case, a policy of compensation insurance was issued covering the work to be done. Whether those doing the work were or were not employees, so as to be insured thereby, the contract was a definite contract in favor of such workmen, and is binding on the insurer. See Liberty Mut. Ins. Co. v. Henry, 56 Ga. App. 868, 872 (194 S.E. 430); New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 680-681 (1) (112 SE2d 273); Security Ins. Group v. Plank, 133 Ga. App. 815, 816 (1) (212 SE2d 471); Ga. Cas. &c. Co. v. Rainwater, 132 Ga. App. 170 (207 SE2d 610).
The judgment of the superior court is reversed with direction that judgment be entered consistent with the law stated in this opinion.
2. The remaining enumerations of error are not passed upon.
Judgment reversed. Bell, C. J., and Clark, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354607/ | 267 S.C. 97 (1976)
226 S.E.2d 249
The State, Respondent,
v.
Lindbergh BREWINGTON, Jr., Appellant.
20246
Supreme Court of South Carolina.
June 21, 1976.
*98 Ray P. McClain, Esq., of Charleston, for Appellant.
Messrs. Daniel R. McLeod, Atty. Gen., Joseph R. Barker, Asst. Atty. Gen., and Perry M. Buckner, Staff Atty., of Columbia, and J. DuPre Miller, Sol., of Bennettsville, for Respondent.
*99 Ray P. McClain, Esq., of Charleston, for Appellant, in Reply.
June 21, 1976.
Per Curiam:
Appellant was convicted of assault and battery of a high and aggravated nature and received a sentence of ten (10) years, suspended upon service of seven (7) years, with five (5) years probation. He has appealed, charging that he is entitled to a new trial because of alleged erroneous rulings relative to the admissibility of certain testimony of an accomplice *100 and of the doctor who treated the victim. In the alternative, he asks that the cause be remanded for sentencing under the Youthful Offender Act. While the issues raised require some comment, the clear lack of any meritorious ground of appeal justifies disposition of the matter without oral argument.
On the trial of the case, one Leon Bethea testified in appellant's behalf. Bethea had previously pled guilty to assault and battery of a high and aggravated nature and had been sentenced in connection with the same incident for which appellant was being tried. It was not disputed that appellant was at the scene with Bethea at the time of the attack in question. The evidence was in conflict as to whether appellant had participated in the assault and the extent of the injuries to the victim. The victim testified that both appellant and Bethea assaulted him. However, Bethea testified that he alone had struck the victim and that, to his knowledge, appellant did not participate in the assault.
During cross-examination of Bethea, the solicitor was permitted, over objection, to elicit the fact that Bethea had previously entered a plea of guilty to assault and battery of a high and aggravated nature in connection with the incident in question and was at that time serving the sentence imposed.
Appellant was indicted for assault and battery with intent to kill, but a directed verdict as to that offense was granted at the close of the State's case, leaving the charge of assault and battery of a high and aggravated nature. The trial judge also submitted the lesser included offense of simple assault and battery.
It is contended that the prior guilty plea of Bethea, the accomplice, was irrelevant to a determination of the guilt of appellant and its admission highly prejudicial since there was a question of the degree of the offense.
Since it is the function of the jury to determine the credibility of witnesses and the weight to be given their testimony, *101 "as a general rule, anything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness may be shown and considered in determining the credit to be accorded his testimony," 98 C.J. S. Witnesses § 460; and "on cross-examination, any fact may be elicited which tends to show interest, bias, or partiality" of the witness, 98 C.J.S. Witnesses § 560a.
The testimony showed that Bethea and appellant were present at the time of the assault and, therefore, the extent of participation by each and their relationship became relevant inquiries. As pointed out by the trial judge, Bethea's testimony was for the purpose of exculpating appellant by taking full blame for the assault. Since Bethea was seeking to accept full responsibility, testimony of his previous plea and sentence was properly admitted as it might affect his interest, bias, or motive. Testimony that he had previously pled guilty and had been sentenced might possibly bolster his testimony that he alone committed the crime; or, on the other hand, since he had already been sentenced and had nothing to lose, it could be considered as tempting him to exonerate appellant. The effect to be given the testimony was for the jury to decide.
Appellant next alleges that the trial judge erred in admitting the testimony of Dr. May to the effect that the injuries to the prosecuting witness could "possibly" have been fatal. The prosecuting witness, 84 years of age, was carried to the hospital immediately after he was assaulted. He was seen and treated by Dr. May.
Dr. May testified that the injuries received by the victim caused swelling in the throat, which could have resulted in cutting off the supply of air to the lungs; and that, due to the age and physical condition of the prosecuting witness, such injuries could have been fatal, unless he was given hospital treatment. The victim was accordingly hospitalized.
Appellant contends that the testimony of the doctor, to the effect that the injuries could have possibly been fatal, *102 were insufficient to establish medical causation and was therefore irrelevant.
Appellant misconceives the purpose of the foregoing testimony. It was not offered to show causation but to show the seriousness of the attack on a man 84 years of age.
We have held that an assault and battery may be considered aggravated where there is a great disparity between the ages and physical condition of the parties. State v. Hollman, 245 S.C. 362, 140 S.E. (2d) 597.
The questioned testimony was relevant to show that the injuries could have been fatal to the victim who was 84 years of age. This was clearly relevant to show circumstances of aggravation and was properly admitted for that purpose.
Finally, appellant contends that improper standards were used by the trial judge in imposing sentence and that the cause should be remanded for resentencing under the Youthful Offender Act.
The jury in this case returned the following verdict. "Guilty of assault and battery of a high and aggravated nature, but we recommend a light sentence."
The recommendation by the jury of leniency was not binding on the trial judge and there is no contention otherwise.
The contention that appellant should have been sentenced under the Youthful Offender Act is without merit. Appellant was twenty-three (23) years of age at the time of sentence and the sentence imposed constituted an implicit finding that appellant was not a suitable person for sentencing as a youthful offender. Brown v. State, 265 S.C. 516, 220 S.E. (2d) 125.
Neither is there merit in the position that the trial judge improperly considered the sentence imposed upon the accomplice in determining the sentence of *103 appellant. The sentence imposed upon a codefendant for the same offense and upon others for similar offenses are among a wide variety of factors which may be properly considered in determining a proper punishment. U.S. v. Williams, 1 Cir., 499 F. (2d) 52.
The sentence imposed on the codefendant or accomplice was only one of the factors considered by the trial judge in imposing sentence upon appellant. In his order denying appellant's motion for resentencing, the trial judge revealed ample basis for his sentence when he stated that he "was impressed that two large and strong young men had made a brutal assault on an 84 year old man in his own home for the purpose of robbery."
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354847/ | 42 Wash. App. 586 (1986)
711 P.2d 1114
THE STATE OF WASHINGTON, Respondent,
v.
LAWRENCE DARNELL SAM, Appellant.
No. 14321-2-I.
The Court of Appeals of Washington, Division One.
January 13, 1986.
Anna Mari Sarkanen of Washington Appellate Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and Celeste Stokes, Deputy, for respondent.
SCHOLFIELD, A.C.J.
Lawrence Darnell Sam appeals his convictions on two counts of first degree robbery. Sam contends that the trial court's instructions on the issue of intoxication denied him due process of law. We affirm.
FACTS
The State presented testimony that Sam robbed a retail video equipment store at approximately 2:30 p.m. on September 24, 1983. At approximately 3:15 p.m. on the same day, Sam hitched a ride with the victim of the second robbery. There was evidence he used a gun in both robberies. Sam introduced evidence of a long-time addiction to alcohol and drugs. Sam testified that on the night before the *587 robberies, he had smoked PCP, ingested "speed balls", which are a combination of heroin and cocaine, and had also consumed both Scotch and cognac. Based on an evaluation of Sam done a week before trial, Dr. Gerald McCarty testified that, in his opinion, Sam did not have the mental capacity to form the intent to rob anyone on September 24, 1983, because of his consumption of intoxicants. Sam testified to having no memory of anything that occurred during the period of time the two robberies were committed.
The trial judge instructed the jury in instructions 8 and 9 (the "to convict" instructions on each count) that the State had the burden of proving beyond a reasonable doubt:
(2) That the defendant intended to commit theft of the property;
Pertaining to the issue of intoxication, the trial court instructed the jury in instruction 6 as follows:
In any prosecution for a crime, the State has the burden of proving beyond a reasonable doubt that the defendant possessed the particular mental state necessary to constitute the crime.
No act committed by a person while in a state of voluntary intoxication by alcohol or by drugs, is less criminal by reason of that condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular kind or degree of crime, the fact of intoxication may be taken into consideration in determining such mental state.
STATE'S BURDEN ON INTOXICATION ISSUE
Sam contends that because intoxication negates the required intent element of robbery, where there is evidence of intoxication, the State has the burden of proving the absence of intoxication beyond a reasonable doubt. Sam assigns error to the failure of the trial court to instruct the jury that the State must prove lack of intoxication beyond a reasonable doubt.
Sam bases his argument primarily on the reasoning in State v. McCullum, 98 Wash. 2d 484, 656 P.2d 1064 (1983) and State v. Acosta, 101 Wash. 2d 612, 683 P.2d 1069 (1984). *588 McCullum and Acosta both place the burden of proving the absence of self-defense on the State in appropriate cases and require the trial court to instruct the jury "in some unambiguous way that the State must prove absence of self-defense beyond a reasonable doubt." Acosta, at 621.
[1] A claim of diminished capacity presents no issue in addition to or beyond the issue of the required mental state set forth in the "to convict" instruction. The only issue raised by a claim of diminished capacity is whether the defendant had the capacity to form the requisite intent. Ingestion of alcohol or drugs can impair capacity. The extent of impairment is a factual issue.
Acosta addresses judicial concern that juries can be confused as to how evidence of self-defense is to be treated when it is an issue unmentioned in the "to convict" instruction and the jury is given no guidance as to the burden of proof of self-defense or the absence of self-defense.
There is no reason for jury confusion as to how to treat claims of diminished capacity based on the evidence of intoxication in a case of this kind. The instructions are clear and unambiguous that the State has the burden of proving the element of intent beyond a reasonable doubt. Instruction 6 and the "to convict" instruction make that clear. Instruction 6 tells the jury in the language of RCW 9A.16.090 that it can take the intoxication evidence into consideration in determining the required mental state.
Sam's quarrel with the instructions is purely semantical. There is no necessity to tell the jury the State has the burden of proving the absence of diminished capacity when they have been told that the State has the burden of proving Sam possessed the required mental state. The presence of the required mental state and the lack of capacity to reach the required mental state are mutually exclusive. Proof of one negates the other.
The instructions fully and unambiguously advised the jury on the subject of a defense of diminished capacity. State v. Rice, 102 Wash. 2d 120, 683 P.2d 199 (1984). There was no error.
*589 Judgment affirmed.
WEBSTER, J., concurs.
WILLIAMS, J. (concurring)
I concur for the reason stated in State v. Fuller, 42 Wash. App. 53, 708 P.2d 413 (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354842/ | 147 Ariz. 567 (1985)
711 P.2d 1240
STATE of Arizona, Appellee,
v.
Ginger Joy LOVE aka Beanie Wright, Appellant.
Nos. 1CA-CR8552, 1CA-CR8553.
Court of Appeals of Arizona, Division 1, Department C.
December 10, 1985.
*568 Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Ronald L. Crismon, Asst. Atty. Gen., Phoenix, for appellee.
Stephen J. Rouff, Yuma, for appellant.
*569 OPINION
KLEINSCHMIDT, Judge.
Ginger Joy Love appeals her conviction for violating A.R.S. § 13-1802(C), theft of items valued over $250, a class 5 felony. We affirm.
FACTS
On December 23, 1983, a security employee at the Aim for the Best Department Store in Yuma observed the appellant pushing a shopping cart filled with merchandise. When the appellant left the store without paying for the items in the cart, the employee confronted her. The cart contained a television set, a sweater, a toy known as a Viewmaster, and four packages of Viewmaster reels. Appellant was arrested, and the articles were impounded.
At the time of arrest, appellant was on probation for a prior theft conviction. Her arrest resulted in the filing of a petition to revoke probation, and the revocation hearing was consolidated with the trial. The prosecution had twice moved to amend the indictment, once to allege a prior conviction and again to allege that the appellant was on probation at the time she committed the offense. See A.R.S. § 13-604.01(B) (renumbered A.R.S. § 13-604.02(B)). The jury found the appellant guilty of theft of over $250 and further found that she had a prior conviction and was on probation at the time of the offense. The appellant received the presumptive three-year sentence for the theft and a consecutive two-year sentence for her probation violation.
The appellant raises two issues: 1) Whether there was substantial evidence from which the jury could find the value of the stolen property to be in excess of $250, and 2) whether she was improperly charged with violating A.R.S. § 13-604.01(B), committing an offense while on probation.
VALUATION
The only testimony as to the value of the stolen property came from the security employee who confronted the appellant outside the store. She testified that the television had a value of $239 and the sweater a value of $15.99. The security employee had no involvement in merchandising, selling, or pricing items at the store. We agree with appellant that, without more, there was insufficient foundation to admit the security employee's testimony as to the value of the property. Rule 701, Arizona Rules of Evidence. The testimony of a person who is not familiar with the pricing of merchandise, unless corroborated, is insufficient to establish value. For similar holdings in other jurisdictions on this issue, see Orr v. State, 462 So. 2d 1013 (Ala. Crim. App. 1984); People v. Codding, 191 Colo. 168, 551 P.2d 192 (1976); State v. White, 37 Conn. Supp. 796, 437 A.2d 145 (1981); Eldridge v. United States, 492 A.2d 879 (D.C.App. 1985), and State v. Coleman, 19 Wash. App. 549, 576 P.2d 925 (1978).
The security employee's testimony, however, was not the only evidence of value. The items stolen were introduced into evidence with their original price tags. At the time they were admitted there was no objection to the tags themselves. The sum of the prices stated on the tags came to $265.61. We conclude that the price tags were sufficient evidence from which the jury could conclude that the value of the goods was more than $250.
The appellant argues that price tags were inadmissible hearsay, citing State v. Coleman and People v. Codding, which hold that a price tag is admissible as a business record only if a proper foundation establishes the method of preparing the tag. Codding, 191 Colo. at 170, 551 P.2d at 193, and Coleman, 19 Wash. App. at 553, 576 P.2d at 927-28. See also Eldridge, 492 A.2d at 883.
We think Codding and Coleman are hypertechnical and impractical. Instead, we follow the reasoning of State v. White, which holds:
In this day and age, items bought at retail are customarily purchased at the price shown on the price tags attached to the merchandise. Although the price *570 listed on the tags was not necessarily conclusive evidence of the market value of the merchandise in this case, it was at least substantial evidence on which a jury could reasonably rely in determining that the market value of the goods stolen was in fact that which was shown on the price tag.
37 Conn. Supp. at 800, 437 A.2d at 148, (quoting Coleman, 19 Wash. App. at 555, 576 P.2d at 928-29 (Andersen, J., dissenting)). See also DeBruce v. State, 461 So. 2d 889 (Ala. Crim. App. 1984); Lacy v. State, 432 So. 2d 1205 (Miss. 1983), and Norris v. State, 475 S.W.2d 553 (Tenn. App. 1971). We thus hold that since the price tags attached to the items admitted into evidence totalled more than $250 and there was no evidence to show that they were not reliable measures of the value of the items, the proof was sufficient.
AMENDED INDICTMENT
The appellant fled Arizona between arraignment and trial and was tried in absentia. Her attorney was in court at all proceedings during her absence. On February 7, 1984, the prosecutor filed a motion to amend the indictment to include an allegation that appellant was on probation at the time of the offense. Appellant now claims the indictment was never amended because the court never ruled on the prosecutor's motion.
The relevant statute, former A.R.S. § 13-604.01, does not require that the defendant's release status be charged in the indictment or information. State v. Waggoner, 144 Ariz. 237, 239, 697 P.2d 320, 322 (1985). Consequently, it was unnecessary for the prosecutor to move to amend the indictment and therefore unnecessary for the court to rule on the motion.
What is necessary is that the defendant must receive notice before trial commences that the state intends to allege that he or she was on probation when the offense was committed to enhance the penalty. Waggoner, 144 Ariz. at 239, 697 P.2d at 322. Because she fled the jurisdiction, the appellant apparently never received actual personal notice before trial of the state's intent to allege that she was on probation at the time the offense was committed. This lack of notice does not compel a reversal, however, because the appellant waived any right to notice by voluntarily remaining absent until after trial.
The constitutionally protected right to be present at all critical stages of trial, except sentencing, may be waived if the defendant voluntarily absents himself at trial. State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983). If the important right to be present at trial may be waived by voluntary absence, it follows that so may the right to be informed of the state's allegation of probation status. It is the responsibility of an out-of-custody defendant to remain in contact with his or her attorney and with the court. State v. Bishop, 139 Ariz. 567, 571, 679 P.2d 1054, 1058 (1984). The appellant failed to do so in this case, and she cannot benefit from her misconduct by manipulating a rule designed for her protection. See People v. Cortes, 123 Ill. App. 3d 816, 820, 463 N.E.2d 885, 888 (1984).
Finally, we note that the appellant's probation revocation hearing was delayed until trial. This procedure was expressly disapproved by our supreme court in State v. Jameson, 112 Ariz. 315, 318, 541 P.2d 912, 915 (1975). Under the circumstances of this case, this was not prejudicial to the defendant because the violation was established when she was proven guilty beyond a reasonable doubt of the thefts which were the basis of the petition to revoke. Had she had an earlier revocation hearing the more relaxed standard of proof by a preponderance of the evidence would have applied.
EUBANK, J., and RUDOLPH J. GERBER, J. Pro Tem., concur.
NOTE: The Honorable RUDOLPH J. GERBER was authorized to participate in this case by the Chief Justice of the Arizona Supreme Court pursuant to Ariz.Const. art. VI, § 3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354829/ | 406 S.E.2d 579 (1991)
329 N.C. 466
STATE of North Carolina
v.
Jonathan Louis CRAWFORD.
No. 443A89.
Supreme Court of North Carolina.
Heard April 24, 1991.
Decided August 14, 1991.
*581 Lacy H. Thornburg, Atty. Gen. by Debra C. Graves, Asst. Atty. Gen., Raleigh, for State.
Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellant.
MEYER, Justice.
In 1988, six-year-old Christopher West lived with his mother, Angela West, his younger brother, Shaun, and his sister, Sara, in a Burlington apartment. Defendant, Angela West's boyfriend, moved in with them in September of that year. On 1 October 1988, Christopher awoke early and broke a house rule by taking food from the kitchen without permission. The State produced evidence at trial that showed defendant had developed a pattern of using extraordinary disciplinary methods intended to punish and humiliate Christopher for disobeying rules. On the following day, Christopher awoke with a minor rash, which defendant attributed to sherbet Christopher had eaten. Defendant attempted to "flush out [Christopher's] system" by coercing him to drink large quantities of water over the next two to three hours. Christopher complained, but defendant continued to coerce him to drink. Finally, the water intake caused Christopher to scream, convulse, and lose his eyesight. After being taken to the hospital unconscious, where he was diagnosed as suffering from water intoxication, Christopher was pronounced brain dead and was removed from a respirator the next day. A jury found defendant guilty of first-degree murder and of felony child abuse. After a sentencing hearing and upon its finding of no aggravating circumstances, the jury recommended a sentence of life imprisonment. The trial court sentenced defendant to life imprisonment for first-degree murder and arrested judgment on the conviction for felony child abuse. We find no error.
The State's evidence tended to show the following: In the spring of 1987, defendant and Angela West met through a mutual friend and, by the summer, were dating regularly. After defendant left his job in February 1988, he spent more time with Angela West and soon began to fill the role of disciplinarian of the children as well.
*582 The State introduced testimony describing a number of incidents involving extraordinary disciplinary methods to show by circumstantial evidence an absence of mistake and an intent by defendant to punish Christopher on 2 October 1988. Defendant testified that certain of his disciplinary techniques were inappropriate but contends that they were done in good faith, and, in any event, he agreed to stop using inappropriate disciplinary measures after meeting with an investigator from the Department of Social Services (DSS) in May of 1988.
Testimony as to defendant's disciplinary techniques was as follows. In the late winter of 1988, at Angela West's request, defendant punished Christopher for allegedly starting a fire in nearby woods. Defendant affixed a sign around Christopher's neck which read, "I sat [sic] the woods on fire, and I lied to my mama." Christopher was required to stand outside with the sign around his neck for between ten and twenty minutes and to recite aloud the words on the sign. When Christopher would try to go back into the apartment, defendant would push him back outside.
Defendant testified to paddling the children on the soles of their feet in order to conceal bruising, to giving the children cold showers "to cool them down" when "they were in an excited state," to putting hot sauce on their tongues, and to washing their mouths out with soap. The latter two disciplinary methods were to prevent "lying and cussing." Other testimony indicated that Christopher had such a physical reaction to the soap used that his mouth "puffed up."
Additionally, a neighbor testified that in the late spring or early summer of 1988, she saw Christopher wearing a diaper, carrying a baby bottle, and crying. When asked at the time about why Christopher was wearing a diaper, defendant responded that "he was being punished, because he was a sissy."
One of Angela West's friends, who visited the apartment frequently, testified that she saw Christopher disciplined on more than one occasion by being required to stand in the corner. When Christopher cried, defendant would taunt him by saying, "Look at the baby. Chris is a little baby."
Another witness testified that defendant asked her if she had ever seen anyone drink hot sauce before. Christopher cried and screamed in fright when defendant said this; then, as the visitor left, she heard Christopher screaming, crying, and saying it was "hot" as defendant poured the hot sauce into a glass. Another witness testified that defendant had told her that Christopher learned from humiliation.
Defendant's extraordinary punishment procedures were not limited to Christopher. Evidence presented at trial indicated that Sara had been forced to sleep in a urine-soaked bed, which was "his way of teaching [her] not to wet the bed," and in another instance, defendant put Sara's urine-soaked underwear on her head. When these instances of punishment occurred, Sara was two or three years old. Finally, a witness testified that in the summer of 1988, defendant forced Shaun to stand with his face up against a tree in the park. A school counselor testified that defendant told her that he was on a "mission" to help Angela West with disciplinary problems. Defendant denies that he made such a statement.
DSS began an investigation of the West family on 9 May 1988. A DSS investigator visited the West home, where defendant stated that Christopher was a bully and needed discipline. Defendant related a number of his disciplinary methods to the investigator, who reported defendant to the police. He was arrested in June for misdemeanor child abuse of the West children. However, on 2 August 1988, those charges were dismissed.
West entered a service agreement on 16 May 1988 with DSS. The agreement in this instance provided that defendant would have no contact with any of the West children. The agreement expired in August 1988 and was not renewed. Defendant was asked to submit to a mental health evaluation, due to the misdemeanor child abuse charges against him, but did *583 not do so on the advice of his attorney. Christopher, however, was examined by a pediatrician, who found no indication of mental instability or mental illness.
Defendant moved in with the West family in September while still unemployed and looked after Christopher's brother Shaun. Shaun had been removed from kindergarten, defendant contends, to prevent him from being expelled. There were at least two meetings at approximately that same time with DSS in which the agency continued to press, to no avail, for removal of the children from the home.
On 1 October 1988, while Angela West was at work and defendant was home alone with the three children, defendant discovered that biscuits were missing from the kitchen and confronted Shaun and Christopher about breaking the house rule that forbade them from going downstairs to the kitchen before an adult was awake to accompany them. Shaun admitted breaking the rule and implicated Christopher. Defendant spanked the boys on the buttocks and required them to stand in the corner. When Angela West returned home, the children were still standing in the corner, having been spanked a second time for not standing quietly. At that time, West and defendant noted a mild rash or reddish mark on Christopher's forehead and face. West restricted the boys to their room for the day.
The next morning, defendant awoke late. After following defendant downstairs, Shaun told defendant that Christopher had vomited during the night at least twice. Defendant noted that Christopher's rash was worse. Upon learning that Christopher had eaten sherbet on the previous morning, defendant concluded that Christopher had food poisoning. West wanted to take Christopher to the hospital, but defendant convinced her otherwise. Defendant testified that he was afraid to take Christopher to the hospital for fear that he would be accused of child abuse, and the children would be taken away.
Defendant suggested to West that the best course to take would be to "flush out [Christopher's] system." Defendant urged Christopher to drink large quantities of water. Christopher vomited dozens of times on the couch, in the bathroom, and in a bucket placed nearby. Nonetheless, defendant continued to ply him with water, despite Christopher's complaining of a headache and of sleepiness. In all, during this treatment Christopher ingested a large quantity of water (defendant testified on one occasion three pitchers and on another to four or five quarts; one physician testified "a little bit more than four quarts"; and another physician estimated "eight to nine quarts"). Finally, Christopher screamed loudly. His eyes widened, and he began convulsing. He fell to the floor and exclaimed that he could not see.
Angela West ran next door to a phone, and a neighbor called for an ambulance. Defendant took Christopher to the hospital, although an ambulance arrived within minutes after his departure. A witness testified that defendant stopped for several minutes at an intersection on the way to the hospital.
At the hospital, Christopher experienced two more seizures, his condition deteriorated, and he was transferred to Duke University Medical Center. The next day, Christopher was pronounced brain dead and was disconnected from a respirator. Although not the cause of death, an autopsy revealed recent bruising to Christopher's head, thigh, and buttocks, some of which, an expert testified, were not of the type that result from normal childhood activity. When police officers searched the West apartment, they found, on the coffee table in the living room near where Christopher drank the water, among other things, a half-filled pitcher of water, a bottle of hydrogen peroxide, a bottle of "Safety Bowl, non-acid restroom and bowl cleaner," and an empty bottle of Lysol toilet bowl cleaner.
The defense introduced evidence to show an absence of intent to harm Christopher.
On cross-examination of a pathologist called by the State, defendant elicited testimony that death by water intoxication is a rare cause of death. The doctor testified *584 that this was the first case of water intoxication with which he had direct experience.
Defendant testified in his own behalf that after he met with DSS, he agreed to stop using the disciplinary measures that DSS considered inappropriate. Defendant further testified that the sherbet that Christopher had eaten had been in the freezer for several weeks. He thought that Christopher's rash and slight fever were a result of food poisoning caused by the sherbet and that was why he told Christopher to drink water. Defendant stated that Christopher only drank three pitchers of water and that when Christopher appeared to have a convulsion, he immediately took him to the hospital. He explained that he stopped his vehicle on the side of the road on the way to the hospital to check for Christopher's pulse and to buckle seat belts on both of them. Defendant testified that the purpose of giving Christopher the water was not to punish him but rather was a "mistaken effort to treat him."
A Burlington pediatrician testified that he had examined the West children in May of 1988 and had found no evidence that they were physically abused.
The case was tried as a capital case, and the jury returned a verdict finding defendant guilty of felony child abuse and of first-degree murder by means of torture and by premeditation and deliberation. Following a sentencing proceeding, the jury declined to find the only aggravating circumstance submitted, that the murder was especially heinous, atrocious, or cruel. The trial court sentenced defendant to life imprisonment for first-degree murder and arrested judgment on the conviction for felony child abuse.
The State's theories on both the charges of felony child abuse and of first-degree murder by means of torture and by premeditation and deliberation were that defendant forced Christopher to consume the large quantity of water to punish and ultimately kill Christopher for having eaten sherbet without permission. The defense contended that defendant forced Christopher to drink the water to "flush out his system," and therefore Christopher's death was an accident or, at most, involuntary manslaughter. Consequently, an ultimate issue in the case was defendant's intent to torture and kill Christopher.
As alternative theories, defendant contends that there was insufficient evidence presented of premeditation and deliberation and of murder by torture and that the trial court's instructions on murder by torture were inadequate.
I.
As defendant's first assignment of error, he contends that the trial court erred in allowing certain expert testimony by a witness qualified as an expert in pediatric critical care medicine. The State responds by noting that the testimony was relevant to show the nature of the injury that caused Christopher's death. The allegedly improper testimony is as follows:
Q. Doctor Boyd, based on the history you obtained, your examination of Christopher West, and his course while in the hospital at Duke University Medical Center, do you have an opinion whether Christopher's condition on arrival at Duke University Medical Center was the result of an intentional physical injury?
[DEFENSE ATTORNEY]: OBJECTION.
COURT: OVER-RULED
A. I do.
Q. What is that opinion?
A. It's my opinion, based on the factors you mentioned in the question, and on my knowledge of the amount of water that would be necessary to cause the serum sodium to get to that level, and on my knowledge of the normal behavioral activities of a six year old boy, that this amount of water would not be voluntarily taken by a six year old, and, therefore, would be forced upon him in some manner, of threat, or coercion, or something of that nature.
Defendant argues, first, that "there was an insufficient foundation for the doctor's testimony" or, in effect, that the evidence was an improper subject matter for expert opinion; second, that it encompassed the *585 ultimate issue of the case; and third, that it was testimony which "utilized several legal terms and concepts."
As to the allegation that the doctor's opinion lacked a proper foundation and was an improper subject matter for expert opinion, defendant contends that expert testimony as to the "normal behavioral activities of a six year old boy" was not helpful to the jury because such knowledge is based on common experience, and expert opinion testimony was unnecessary to assist the jury. In considering the adequacy of the subject matter for the expert's testimony here, we note a statutory provision directly on point. It provides:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.
N.C.G.S. § 8C-1, Rule 702 (1988). The qualification of a witness as an expert is normally left to the sound discretion of the trial judge. State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931). The subject matter of the expert testimony must merely be such that it would be helpful to the fact finder. Our Court of Appeals has noted that:
"It seems abundantly clear that, despite occasional technical roadblocks erected by the `rule' against invading the jury's province and by notions about the jury's sublime capacity to draw its own inferences, there can be expert testimony upon practically any facet of human knowledge and experience." Stansbury's N.C. Evidence, Subject Matter of Expert Testimony, § 134, p. 438.
State v. Raines, 29 N.C.App. 303, 307, 224 S.E.2d 232, 234, disc. rev. denied, 290 N.C. 311, 225 S.E.2d 832 (1976); see generally 1 Brandis on North Carolina Evidence § 134 (3d ed. 1988). Here, the witness, qualified as an expert in pediatric critical care medicine, could relate the sensations that a six-year-old boy would feel after drinking such a large quantity of water, which, under normal conditions, would have signaled him to stop drinking. We hold that the trial court did not err in allowing the expert's testimony.
As to defendant's contention that the testimony encompassed the ultimate issue to be decided by the trier of fact, we first note the provisions of the applicable evidentiary rule. Rule 704 provides that "[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.C.G.S. § 8C-1, Rule 704 (1988). Consistent with the language of the statute, we have previously held that an expert's testimony may embrace the ultimate issue to be decided by the trier of fact. State v. Shank, 322 N.C. 243, 249, 367 S.E.2d 639, 643 (1988) (expert testimony "as to whether a defendant had the capacity to make and carry out plans, or was under the influence of mental or emotional disturbance ... relates to an ultimate issue to be decided by the trier of fact" and should have been admitted). However, the Court has held that expert testimony as to a "`legal conclusion ... [is inadmissible] at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness.'" State v. Rose, 323 N.C. 455, 459, 373 S.E.2d 426, 429 (1988) (quoting State v. Smith, 315 N.C. 76, 100, 337 S.E.2d 833, 849 (1985)). Having determined that the testimony relating to the ultimate issue is not objectionable, we now address defendant's contention that the expert's testimony "utilized several legal terms and concepts" to determine if the testimony contained legal terms of art not readily apparent to the witness.
Defendant makes essentially two arguments. First, he contends that the fact that Christopher could not "voluntarily" drink this quantity of water is the same as a finding that the defendant was legally responsible for Christopher drinking the water and therefore legally responsible for Christopher's death. Second, defendant argues that testimony that Christopher was "threatened" or "coerced" is an opinion that a legal standard had been met. We disagree. The terms "voluntary," "threatened," and "coerced" have no specific technical *586 legal meanings as they were used here and are not "words of art" as are such terms as "premeditation and deliberation" or "proximate cause." Rose, 323 N.C. at 460, 373 S.E.2d at 429 ("Premeditation and deliberation are legal terms of art."); State v. Ledford, 315 N.C. 599, 617, 340 S.E.2d 309, 321 (1986) ("proximate cause" is a legal term of art); see also State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985). In this case, the common, everyday meaning of the terms is consistent with the legal definition. Moreover, we note again that defendant admits that he coerced Christopher to drink the water, intending to make him throw up. Expert testimony as to whether Christopher's acts were "voluntary," "threatened," or "coerced" only confirms what defendant admits, that is, that he coerced Christopher to drink. The testimony in question was properly admitted here.
We note further that the defendant, at trial and in his brief to this Court, admitted that he coerced Christopher to drink the water to "flush out his system." Therefore, even assuming, arguendo, that the admission of the expert's testimony was error, there is no reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial. N.C.G.S. § 15A-1443(a) (1988).
II.
Defendant next contends that the trial court erred in not specifically instructing upon malice as a prerequisite to a finding of murder by torture. Moreover, defendant argues that, even if malice were not required, the evidence did not show that defendant caused Christopher great pain. Defendant also contends that there was inadequate evidence to support the theory of premeditation and deliberation.
MURDER BY TORTURE
The trial court instructed the jury on murder by torture as follows:
Now, I charge that for you to find the defendant guilty of first degree murder by means or [sic] torture, the state must prove two things beyond a reasonable doubt.
First, that the defendant intentionally tortured the victim.
Torture is the course of conduct by one or more persons which intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion, or sadistic pleasure.
Course of conduct, is the pattern of the same or similar acts, repeated over a period of time, however short, which established that there existed in the mind of the defendant a plan, scheme, system or design to inflict cruel suffering upon another.
Intent is a mental attitude which is seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.
Second, the state must prove that the torture was a proximate cause of the victim's death.
A proximate cause is a real cause, a cause without which the victim's death would not have occurred.
....
Now, members of the jury, bearing in mind that the burden of proof rests upon the state to establish the guilty [sic] of the defendant beyond a reasonable doubt, I charge that if you find from the evidence that the killing of the deceased was accidental, that is, that the victim's death was brought about by an unknown cause, or that it was from an unusual or unexpected event from a known cause, and you also find that the killing of the deceased was unintentional, that at the time of the homicide the defendant was engaged in the performance of a lawful act, without any intention to do harm, and that he was not culpably negligent, if you find these to be the facts, remembering that the burden is upon the state, then I charge that the killing of the deceased was a homicide by misadventure, *587 and if you so find, it would be your duty to render a verdict of not guilty as to this defendant.
Noting that the trial court did not instruct on malice, defendant contends that a specific finding of malice is required for murder by torture. Since malice was not specifically found by the jury in defendant's conviction of murder by torture, defendant contends that his conviction should be reversed. We disagree.
Murder by torture is classified in N.C. G.S. § 14-17 as first-degree murder. That statute provides as follows:
A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life as the court shall determine pursuant to G.S. 15A-2000....
N.C.G.S. § 14-17 (Cum.Supp.1990) (emphasis added). The statute, on its face, makes no reference to a showing of malice. Since murder is not defined by the statute, we follow the general rule that where a statutory term is undefined, we employ the common law definition. N.C.G.S. § 4-1 (1986).
Common law murder has been defined as "any intentional and unlawful killing of a human being with malice aforethought, express or implied." State v. Vance, 328 N.C. 613, 622, 403 S.E.2d 495, 501 (1991). This Court has determined that when the homicide was perpetrated by means of torture, there is no requirement of a showing of intent to kill. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).
We ... now hold that premeditation and deliberation is not an element of the crime of first-degree murder perpetrated by means of poison, lying in wait, imprisonment, starving, or torture. Likewise, a specific intent to kill is equally irrelevant when the homicide is perpetrated by means of poison, lying in wait, imprisonment, starving, or torture; and we hold that an intent to kill is not an element of first-degree murder where the homicide is carried out by one of these methods.
Id. at 203, 344 S.E.2d at 781 (emphasis added).
With regard to the next requirement, malice, as it is ordinarily understood, means not only hatred, ill will, or spite, but also that condition of mind which prompts a person to take the life of another intentionally, without just cause, excuse, or justification, or to wantonly act in such a manner as to manifest depravity of mind, a heart devoid of a sense of social duty, and a callous disregard for human life. State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984); State v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980). We have held that malice in the case of felony murder is "transferred" when the underlying felony is committed. In State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986), we stated:
The felony-murder rule is a rule of ancient application under which there is a fictional transfer of the malice which plays a part in the underlying felony to the unintended homicide so that the homicide is deemed committed with malice.
....
In the typical case of felony-murder, there is no malice in "fact", express or implied; the malice is implied by the "law". What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.
2 Wharton's Criminal Law § 145 (1979). Id. at 456-57, 340 S.E.2d at 710; accord State v. Womble, 292 N.C. 455, 233 S.E.2d 534 (1977). Murder by torture is analogous *588 to felony murder in that malice may be implied by the very act of torturing the victim. Torture is a dangerous activity of such reckless disregard for human life that, like felony murder, malice is implied by the law. The commission of torture implies the requisite malice, and a separate showing of malice is not necessary.
By this assignment of error, defendant also contends that the State did not present adequate evidence of torture. The record indicates otherwise. Torture was defined by the trial court in pertinent part as "the course of conduct by one ... which intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion, or sadistic pleasure." We note first that, based on the evidence of a pattern of extraordinary disciplinary methods, the jury could have inferred an intent to cause Christopher grievous pain. There was also adequate evidence of "grievous pain and suffering." Through expert testimony, evidence was presented that Christopher's stomach was distended to accommodate large quantities of water and that this "is very painful." Moreover, Christopher vomited "dozens" of times as he was urged to drink more and more water. Other testimony indicated that the fluid that filled Christopher's lungs would have created a sensation similar to suffocation and that the swelling of his brain that resulted from the ingestion of water created a tremendous headache, which culminated in a scream, followed by blindness. Lastly, based on defendant's past pattern of punishing Christopher, there was adequate evidence for the jury to find that defendant's acts were for the purpose of punishment. We hold here that the State presented adequate evidence of torture.
MURDER WITH PREMEDITATION AND DELIBERATION
Defendant also contends that the State failed to present sufficient evidence of premeditation and deliberation to submit an instruction to the jury. We disagree. The trial court instructed the jury on first-degree murder, with premeditation and deliberation, as follows:
Now, I charge that for you to find the defendant guilty of first degree murder with malice, with premeditation and deliberation, the state must prove five things, beyond a reasonable doubt.
First: That the defendant intentionally and with malice, killed the victim.
Malice means not only hatred, ill will or spite as it is ordinarily understood. To be sure, that is malice. But, it also means the condition of mind which prompts a person to take the life of another intentionally, or to intentionally inflict serious injury upon another, which proximately results in his death, without just cause, excuse or justification.
Second: The state must prove that the defendant's act was a proximate cause of the victim's death.
A proximate cause is a real cause, a cause without which the victim's death would not have occurred.
Third: The state must prove that the defendant intended to kill the victim.
Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An intent to kill may be inferred from the nature of the defendant's act, the manner in which it was made, the conduct of the parties, and other relevant circumstances.
Fourth: The state must prove that the defendant acted with premeditation. That is, that he formed the intent to kill the victim over some period of time, however short, before he acted.
Fifth: That the defendant acted with deliberation, which means that he acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion. If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion, or excited when the intent was carried into effect.
Neither premeditation, nor deliberation are usually susceptible of direct proof. *589 They may be proven by proof of circumstances from which they may be inferred, such as the conduct of the defendant, before, during and after the killing, and the manner in which, or means by which the killing was done.
Premeditation has been defined as some thought beforehand, for some length of time, however short. State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977). Premeditation need not be for a particular amount of time. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980). Deliberation is the intention to kill, executed in a cool state of blood in furtherance of a fixed design, to gratify a feeling of revenge or to accomplish some unlawful purpose. Id. Premeditation and deliberation must generally be proved by circumstantial evidence, since they are processes of the mind and are seldom proved by direct evidence. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). Certain relevant circumstances which tend to show premeditation and deliberation are "ill-will or previous difficulty between the parties; ... the dealing of lethal blows after the deceased has been felled and rendered helpless; and ... evidence that the killing was done in a brutal manner." State v. Williams, 308 N.C. 47, 69, 301 S.E.2d 335, 349, cert, denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 177, reh'g denied, 464 U.S. 1004, 104 S. Ct. 518, 78 L. Ed. 2d 704 (1983).
In this case, there is ample evidence to support the instructions on murder with premeditation and deliberation. Previous ill will by defendant toward Christopher was shown through testimony of extraordinary disciplinary procedures intended to oppress and humiliate Christopher. The manner of killing, which involved the painful ingestion of large quantities of water over a two- to three-hour period, indicates a particularly brutal method of killing. In addition, evidence indicated that Christopher suffered from bruises to the head and buttocks, possibly inflicted during this two-to three-hour period. For the above reasons, the evidence is sufficient to support the trial judge's instructions on first-degree murder with premeditation and deliberation.
III.
Having previously determined that malice is implied in a finding of torture in a crime of murder by torture, we must now determine if the instructions given on torture in this case were adequate. Defendant argues that the trial judge's instructions did not properly define the crime of torture. We disagree. The trial judge defined torture as
the course of conduct by one or more persons which intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion, or sadistic pleasure.
Course of conduct, is the pattern of the same or similar acts, repeated over a period of time, however short, which established that there existed in the mind of the defendant a plan, scheme, system or design to inflict cruel suffering upon another.
Defendant contends that the instructions given did not properly define the crime of torture and that the acts he committed were not envisioned by the legislature as punishable as first-degree murder. Defendant notes that corporal punishment is a widely used form of disciplining children. Additionally, defendant argues that the instructions do not require that the torturer inflict pain for pain's sake. Defendant faults the present instructions as not requiring that the pain be inflicted for pain's sake or for the torturer's own sake.
By finding a course of conduct and the intentional infliction of grievous pain and cruel suffering resulting in death, the jury has satisfied the statutory and constitutional requirements. The instructions given by the trial judge adequately defined torture for purposes of first-degree murder.
IV.
Defendant next contends that the torture statute is unconstitutionally vague. We do not find it so. Essentially, defendant argues that a reasonable person of ordinary intelligence would not be on notice that his conduct was a crime.
*590 A common understanding of torture would put a person of ordinary understanding on notice that coercing a six-year-old to drink quart after quart of water over a two- to three-hour period, despite his vomiting dozens of times and complaining of headaches, would constitute torture for purposes of the murder statute. The trial judge's instructions, defendant argues, would encompass even legal corporal punishment if the punishment caused death. In response to defendant's argument, the State notes that, by its very definition, a "lawful" punishment cannot be a punishment, carried out over a period of time, that is intended to inflict grievous pain and cruel suffering. Such punishment would be unlawful punishment, and if death results, it is punishable as first-degree murder.
We hold that in light of the common understanding of what defines torture, the statute is not unconstitutionally vague and puts a reasonable person on notice of what is forbidden. See, e.g., State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981).
V.
Defendant next contends that the exclusion of certain testimony denied him his federal and state constitutional right to present a defense. Defendant sought to allow the testimony of Judy Clayton, who is Angela West's mother and the grandmother of Christopher. After a voir dire of Ms. Clayton's proposed testimony, it was apparent that she would have testified that she told her daughter to watch Christopher and to give him plenty of fluids. Defendant contends that this testimony was relevant to show the theory of his defense, that defendant was administering a "home remedy" and was not punishing Christopher. The State objected on the grounds that the testimony was irrelevant and hearsay. We agree that the testimony was properly excluded. There was no evidence that Angela West conveyed this advice to defendant, and it was therefore irrelevant. Having upheld the trial court's discretion as to the testimony's lack of relevancy, we need not address the issue of hearsay.
VI.
Defendant next contends that testimony of prior instances of defendant's punishing and disciplining Christopher was irrelevant as being too remote and dissimilar and, even if admissible for a relevant purpose, was highly prejudicial evidence of defendant's character and propensity to commit the crime for which he was charged. We do not agree. As previously indicated, the State introduced a great deal of evidence describing prior disciplinary techniques carried out by defendant against Christopher. The trial court gave the following limiting instructions as to this evidence:
Evidence has been received tending to show that the defendant used disciplinary techniques through May 9, 1988, which were deemed inappropriate by the Department of Social Services. This evidence was received solely for the purpose of showing that the defendant had a motive for the commission of the crime charged in this case, that the defendant had the intent, which is a necessary element of the crime charged, in this case, that there existed in the mind of the defendant a plan, scheme, system or design, involving the crime charged in this case, the absence of mistake, and the absence of accident.
If you believe this evidence, you may consider [it], but only for the limited purpose for which it was received.
The State contends that circumstantial evidence of defendant's intent was appropriate and highly relevant and not too remote or dissimilar. We agree. The acts took place during the year preceding Christopher's death and are sufficiently similar to the coerced consumption of large quantities of water in that they were devious methods used by the defendant to punish Angela West's children, including Christopher, and demonstrate methods used by defendant to exert control over the children. Defendant's intent is generally determined by circumstantial evidence, and such testimony is highly probative of defendant's intent here. Moreover, motive *591 and common plan are also highly relevant to this case, as is absence of mistake. We therefore hold that the testimony was admissible for these relevant purposes.
Having found that the evidence is admissible for a proper Rule 404(b) purpose, we now address whether the prejudicial effect of the testimony outweighed its probative value. See N.C.G.S. § 8C-1, Rule 403 (1988). Absent an abuse of discretion, matters of weighing Rule 403 prejudice are in the sound discretion of the trial judge. State v. Schultz, 88 N.C.App. 197, 362 S.E.2d 853 (1987), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1988). We note that the trial court conducted a voir dire indicating a careful consideration of the prejudicial impact of the testimony. Furthermore, the previously indicated limiting instructions were also given. Based on the record before us, we find no abuse of the trial court's discretion in admitting the evidence as being more probative than prejudicial.
VII.
Defendant finally contends that the medical evidence indicated that death was not foreseeable from defendant's conduct. Defendant argues that the trial court's instructions to the jury, to which defendant did not object, that the jury could infer premeditation and deliberation from the means or manner of the killing, constituted prejudicial error in violation of defendant's state and federal constitutional rights. As we have often stated, premeditation and deliberation are not susceptible to direct proof and therefore must be inferred from circumstantial evidence. One factor from which premeditation may be inferred is the means or manner of the killing. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). Essentially, defendant requests that we find as a matter of law that coercing a six-year-old to drink water until he dies cannot evince premeditation and deliberation because no reasonable juror could so find. We disagree. In this case, defendant, over a two- to three-hour period, continued to coerce Christopher to drink water, despite observing Christopher's repeated vomiting and complaints of headaches. The evidence presented in this case, as previously stated, is ample to support premeditation and deliberation through circumstantial evidence of the means or manner of the killing.
In summary, we hold that defendant received a fair trial, free of prejudicial error, before an impartial judge and jury. The convictions upon which the sentence is based are supported by the evidence.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354846/ | 406 S.E.2d 52 (1990)
Edward P. TWIGG, Jr.
v.
HERCULES CORPORATION.
No. 19501.
Supreme Court of Appeals of West Virginia.
July 26, 1990.
Dissenting Opinion of Justice Brotherton June 7, 1991.
David H. Webb, Staggers and Webb, Keyser and Robert M. Bastress, Jr., Morgantown, for Edward P. Twigg.
Charles Q. Gage and L. Anthony George, Jackson & Kelly, Charleston, for Hercules Corp.
WORKMAN, Justice:
This case is before the Court to answer a certified question posed by the United States District Court for the Northern District of West Virginia. The question certified by the district court is as follows:
Can the discharge of an employee for refusing to submit to urinalysis as part of a random drug test violate a substantial public policy of West Virginia and subject the employer to damages under Harless v. First National Bank in Fairmont, [162 W.Va. 116,] 246 S.E.2d 270 (1978) and [169 W.Va. 673,] 289 S.E.2d 692 (1982), when the employer has no *53 individualized suspicion of drug usage and the drug test is not prohibited by state statute?
After a review of the arguments of the parties in this matter and all the matters of record submitted before this Court, we are in partial agreement with the district court's answer.
According to the facts submitted before the district court, the plaintiff, Edward P. Twigg, was hired in February, 1978, as a draftsman for Hercules Corporation d/b/a Allegany Ballistics Laboratory (hereinafter referred to as Allegany) in Mineral County, West Virginia. Allegany was in the business of manufacturing highly explosive and dangerous fuels.
During his employment at Allegany, Twigg performed his job satisfactorily which is indicated in the record by the fact that he received numerous pay increases, positive evaluations and promotions. The position which he last held at Allegany was that of material planner, which required him to assist in the maintenance of the stock of supplies needed to conduct the defendant's business. It is unclear from the record before this Court whether Twigg's duties actually brought him into physical or direct contact with the explosive fuels or other potentially dangerous ingredients.[1]
In December, 1984, the defendant implemented a policy of mandatory, random drug testing for its employees at Allegany. On February 10, 1986, Hercules promulgated its revised policy for drug and alcohol testing. This revised policy became effective on March 1, 1986. During 1986, the defendant twice selected the plaintiff for random drug testing with each test providing a negative result. Twigg communicated to his superiors at Allegany his objections to the mandatory, random drug testing policy; however, he did not refuse to submit to the testing on either of these two occasions.
On July 29, 1987, plaintiff's supervisor informed him that he had once again been selected for a urinalysis drug test to be administered on that day. Twigg once again informed his supervisors that he was opposed to the drug testing. The defendant's management advised plaintiff that if he did not submit to the drug test, he would be terminated from his employment with the corporation. The plaintiff did refuse to submit to the urinalysis and consequently was discharged by Hercules on July 29, 1987.
The question of whether discharge of an employee for refusing to submit to mandatory random drug testing violates substantial public policy in West Virginia is one of first impression for this Court. The plaintiff argues that the defendant, Hercules Corporation, violated a substantial public policy by discharging the plaintiff for his refusal to submit to random drug testing since the defendant had no individualized suspicion of drug usage by the plaintiff[2] and therefore lacked any sufficient justification for the testing. The defendant, on the other hand, contends that there is no substantial public policy in West Virginia which prohibits mandatory random drug testing of employees in the private sector because (1) there is no legislation prohibiting such testing; (2) constitutional proscriptions do not apply to private sector conduct; and (3) common law principles cannot constitute a "substantial public policy" where the issues are "fairly debatable or controversial" and thus better left to the legislature;[3] and, in any event, the common law right of privacy does not prohibit random drug testing.
*54 This Court first dealt with the issue of employers being held liable where an employee's discharge contravenes a substantial public policy in Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978). In Harless, a bank employee was allegedly discharged after he attempted to bring to the attention of the bank's vice-presidents, and a member of the bank's board of directors, the fact that the bank "`had intentionally and illegally overcharged customers on prepayment of their installment loans and intentionally did not make proper rebates,'" all in violation of state and federal consumer credit and protection laws. Harless, 246 S.E.2d at 272.
We recognized in the Harless case a new cause of action for at-will employees who are discharged when the employer's motives for such discharge contravene a substantial public policy. Id. Further, this Court opined that
[w]e have no hesitation in stating that the Legislature intended to establish a clear and unequivocal public policy that consumers of credit covered by the Act [West Virginia Consumer Credit and Protection Act, W.Va.Code §§ 46A-1-101 to -107] were to be given protection. Such manifest public policy should not be frustrated by a holding that an employee of a lending institution covered by the Act, who seeks to ensure that compliance is being made with the Act, can be discharged without being furnished a cause of action for such discharge.
246 S.E.2d at 276.
Subsequently, in Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984), we dealt with whether the discharge of an employee for refusal to take a polygraph test as a condition of employment violated substantial public policy. Specifically, the facts in Cordle indicate that when employees were hired as cleaning maids to work at a "Holiday Inn" they signed agreements which provided that they would take polygraph examinations when required by the employer. The plaintiffs subsequently were informed that the polygraph tests were to begin soon; however, when that time arrived, the plaintiffs refused to submit to the examination. Cordle, 325 S.E.2d at 112-13.
This Court reaffirmed its previous decisions which acknowledge that "[i]n West Virginia, a legally protected interest in privacy is recognized,"[4] and further opined that
it is contrary to the public policy of West Virginia for an employer to require or request that an employee submit to a polygraph test or similar test as a condition of employment, and although the rights of employees under that public policy are not absolute, in that under certain circumstances, such as those contemplated by W.Va.Code, 21-5-5b [1983],[5] such a polygraph test or similar *55 test may be permitted, the public policy against such testing is grounded upon the recognition in this State of an individual's interest in privacy.
325 S.E.2d at 117.
In applying the holding of the Cordle case to the present case, it is unquestionable that since we do recognize a "legally protected interest in privacy" and have previously found that requiring employees to submit to polygraph examinations violates public policy based upon this privacy right, we likewise recognize that it is contrary to public policy in West Virginia for an employer to require an employee to submit to drug testing, since such testing portends an invasion of an individual's right to privacy.[6]
We do, however, temper our holding with two exceptions to this rule. Drug testing will not be found to be violative of public policy grounded in the potential intrusion of a person's right to privacy where it is conducted by an employer based upon reasonable good faith objective suspicion of an employee's drug usage or where an employee's job responsibility involves public safety or the safety of others.
In allowing mandatory drug testing where public safety or safety to others is of concern to the employer, we follow the example set by numerous courts which have permitted drug testing in such a situation.[7] The reasoning behind drug testing under this circumstance was best explained by the Supreme Court of Alaska in Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). The Alaska Supreme Court, in finding that a drug testing program initiated by a company which operated drilling rigs was not in violation of the state constitutional right to privacy, was not in violation of the implied covenant of good faith and fair dealing, and did not give rise to a cause of action for invasion of privacy, specifically relied upon public safety and the safety of other employees in its decision. Id. at 1130 and 1136.
The court in Luedtke reasoned that when the right to privacy was seeded against a public concern issue such as safety that
`we think this right [to privacy] must yield when it interferes in a serious manner with the health, safety, rights and privileges of others or with the public welfare. No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely. Indeed, one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor, and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.'
Id. at 1135 (quoting Ravin v. State, 537 P.2d 494, 504 (Alaska 1975), cert. denied sub nom. Smith v. Washington, 449 U.S. 873, 101 S. Ct. 213, 66 L. Ed. 2d 93 (1980)).
Where a business is engaged in an activity which involves either public safety or safety concerns for others, we find that *56 there exists a legitimate reason for the implementation of a drug testing program since a drug-impaired employee would potentially increase the risk of harm to others. However, there must be a showing by the employer that the employees required to undergo such testing have responsibilities or duties which are connected to the safety concerns of others. Thus, in the present case, it is obvious that a company involved in manufacturing highly explosive and dangerous fuels does employ individuals who, if drug-impaired, could increase the risk of harm to others, whether they are members of the general public or other employees. We are unable, however, to ascertain from the record before this Court whether the plaintiff's job responsibilities involved either the safety of others or public safety.
We now turn to the imposition of a reasonable suspicion standard in situations that do not involve public safety or safety of others. The plaintiff argues that had the employer's drug testing policy included an individualized suspicion standard it would not have violated any public policy; absent that individualized or reasonable suspicion standard, a violation of a substantial public policy occurs since the employer is effectively conducting an unwarranted, nonconsensual search. This argument is based not only on the fourth amendment to the United States Constitution, but article 3, section 6 of the West Virginia Constitution.
Generally, courts have held that "[t]he proscription against unauthorized searches and seizures embodied in ... the Fourth Amendment to the United States Constitution... applies exclusively to government or state action." Monroe v. Consolidated Freightways Inc., 654 F. Supp. 661 (E.D. Mo.1987) (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984)) (court found that claim that corporate employer's institution of a drug-testing policy was violative of rights of supervisory personnel under fourth amendment was insufficient to state a cause of action since claim addressed purely private conduct and the state and federal proscriptions apply exclusively to government or state actions). Consequently, "because any constitutional limits apply only to drug testing involving an element of state action, the constitutional questions do not, of their own force, hamper private employers." Comment, Employee Drug TestingBalancing the Interests in the Workplace: A Reasonable Suspicion Standard, 74 Va.L.Rev. 969, 973 (1988) (hereinafter referred to as Employee Drug Testing). Therefore, generally a private employer can conduct drug testing without having to concern themselves with requirements of the fourth amendment.
However, since this Court now recognizes that mandatory drug testing violates a substantial public policy of this state based on the right to privacy under the Cordle analysis, and "[b]ecause ... [the] fourth amendment claim ... is much stronger and subsumes the privacy claim, the invasion of privacy issue is rarely addressed separately from the fourth amendment issue in drug-testing cases." Id., at 977. Consequently, we must determine what type of probable cause a private employer must have prior to conducting drug testing due to the substantial public policy issues involved.
We recognize that the protections provided by the fourth amendment and state constitution are not absolute. Thus we recognize that the imposition of an obligation upon the employer to meet the high standard of probable cause before conducting a drug test on an employee would place an intolerable burden upon the employer. See O'Conner v. Ortega, 480 U.S. 709, 722-26, 107 S. Ct. 1492, 1500-02, 94 L. Ed. 2d 714 (1987). That is why we choose to impose the lesser standard of reasonable suspicion upon the employer.[8] Drug testing conducted by an employer utilizing this standard will not violate public policy "[b]ecause the *57 employer has a legitimate interest in curtailing the use of illicit drugs in the workplace, [and] courts have endorsed drug testing when the standards used to determine who should be tested were reasonable." Employee Drug Testing, supra at 976 (footnotes omitted). Further, "[n]o court has held that testing on the basis of `reasonable suspicion' of drug use violates the fourth amendment." Id. at 976-77 (footnote omitted).
In placing this minimum standard upon the employer which must be met prior to conducting drug testing we acknowledge not only the employer's right to ensure the efficient and proper operation of his or her particular workplace, but also the employer's right to be free from potential liability brought on by an employee's drug usage which may ultimately result in harm to the others or in mismanagement, misfeasance or incompetence in the workplace. See O'Conner, 480 U.S. at 724, 107 S.Ct. at 1501, 94 L.Ed.2d at 727. However even in recognizing these concerns of the employer, since we have previously held that "`the right to privacy is an individual right that should be held inviolate,'" we refuse to allow an employer to intrude upon this right of his employee absent some showing of reasonable good faith objective suspicion, unless the employer can articulate either a public safety concern or concern for the safety of other employees. Cordle, 325 S.E.2d at 116 (quoting Roach v. Harper, 143 W.Va. 869, 876, 105 S.E.2d 564, 568 (1958)). To hold otherwise would effectively render an employee's right to privacy meaningless.
Having answered the certified questions, this case is dismissed from the docket of this Court.
Certified question answered.
BROTHERTON, J., dissents and files a dissenting opinion.
BROTHERTON, Justice, dissenting:
I dissent to the majority's opinion for one reason: How can an attempt to create a drug-free environment be against the public policy of this State? The majority admits that "generally a private employer can conduct drug testing without having to concern themselves with requirements of the fourth amendment." See majority opinion at p. 56. Despite this conclusion, however, the majority quickly discovers a public policy exception which negates the finding. Quoting Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984), this Court held that:
[i]t is contrary to the public policy of West Virginia for an employer to require or request that an employee submit to a polygraph test or similar test as a condition of employment, and although the rights of employees under that public policy are not absolute, in that under certain circumstances, such as those contemplated by V.Va.Code, 21-5-5b [1983], such a polygraph test or similar test may be permitted, the public policy against such testing is grounded upon the recognition in this State of an individual's interest in privacy.
Id. at syl. pt. 3.
In relying upon this case, the majority ignores the fact that the result in Cordle was based upon a direct statutory provision which prohibited an employer from requiring that an employee undergo "a polygraph, lie detector, or other such similar test utilizing mechanical measures of physiological reactions to evaluate truthfulness...."[1] Thus, since the legislature addressed the issue of polygraph tests, the Court in Cordle was correct in assuming that there was a public policy against such tests.
*58 However, no indication of legislative intent exists in this case. There is no statute which prevents drug testing. While I agree that a right to privacy exists in this State, it is subject to a private employer's right to insure that their work place is drug-free. I believe that an employer is entitled to know whether his employees are using drugs which may affect their work performance and, in some cases, the safety of others at the work place.
The majority does not suggest that the employer in this case chose Twigg for testing based upon an improper reason. Instead, the decision appears to be based solely upon an all encompassing privacy right which exists virtually to the exclusion of all other rights. I cannot agree, nor can I believe that the people of this State intended such a result.
NOTES
[1] While the facts submitted in the certification order reflect that Twigg's work did not bring him into physical or direct contact with the fuels or their ingredients, Twigg's testimony in deposition revealed that his duties regularly required him to visit the following "critical areas" of the plant: a) areas containing rocket motors into which propellant had been cast; b) the "ignitor room" where the ignition systems for the rocket propellant were built; and c) the area containing the "ignitor sticks," the explosive powder which went into the ignitors.
[2] The certification order prepared by the district court states that "[d]efendant had no basis for believing that plaintiff had recently used any illegal drugs."
[3] See Syl. Pt. 3, Yoho v. Triangle PWC, Inc., W.Va. , 336 S.E.2d 204 (1985).
[4] Syl. Pt. 2, Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984) (citing Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564 (1958)).
[5] W.Va.Code § 21-5-5b (1983) provides that:
No employer may require or request either directly or indirectly, that any employee or prospective employee of such employer submit to a polygraph, lie detector or other such similar test utilizing mechanical measures of physiological reactions to evaluate truthfulness, and no employer may knowingly allow the results of any such examination or test administered outside this State to be utilized for the purpose of determining whether to employ a prospective employee or to continue the employment of an employee in this State: Provided, that the provisions of this section shall not apply to employees of an employer authorized to manufacture, distribute or dispense the drugs to which article five [§ 30-5-1 et seq.], chapter thirty applies, excluding ordinary drugs as defined in section twenty-one [§ 30-5-21], article five, chapter thirty: Provided, however, that the provisions of this section shall not apply to law enforcement agencies or to military forces of the State as defined by section one [§ 15-1-1], article one, chapter fifteen of the Code: Provided further, that the results of any such examination shall be used solely for the purpose of determining whether to employ or to continue to employ any person exempted hereunder and for no other purpose.
Even though our holding in Cordle referred to the above statute, it is important to note that the statute was not in effect at the time the facts for that case arose. Consequently, the basis for finding the existence of a substantial public policy at the time of the controversy was not the above statute.
[6] Compare with other jurisdictions which have refused to find that random drug testing violates an individual's right to privacy or a substantial public policy. See Johnson v. Carpenter Technology Corp., 723 F. Supp. 180 (D.Conn.1989); Ensor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D. Tenn.1989); Greco v. Halliburton Co., 674 F. Supp. 1447 (D.Wyo.1987); Singleton v. Searail Indus., Inc., 674 F. Supp. 1451 (S.D.Ala.1987); Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497 (1989); Casse v. Louisiana Gen. Serv., 531 So. 2d 554 (1988), appeal denied, 533 So. 2d 375 (1988).
[7] The following courts have upheld drug testing when either public safety or the safety of others is at issue based upon the nature of the work: Thomson v. Marsh, 884 F.2d 113 (4th Cir.1989) (court upheld random drug testing on certain civilian employees at a chemical weapons plant because of governmental interest in safety); Jones v. McKenzie, 833 F.2d 335 (D.C.Cir.1987) (court upheld drug testing where employee's duties involved direct contact with young school children and their physical safety); Ensor v. Rust Eng'g Co., 704 F. Supp. 808 (E.D.Tenn.1989) (court upheld drug testing program of pipefitters working at a facility engaged in research of nuclear energy and coming into contact with fissionable materials); Casse v. Louisiana Gen. Serv., Inc., 531 So. 2d 554 (La.Ct.App.1988) (court upheld drug testing program where company had a legitimate safety concern since it was in the business of distributing volatile natural gas).
[8] The United States Supreme Court has recognized the validity of the reasonable suspicion standard in the following cases. Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989), National Treasury Employees v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989), O'Conner v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987), New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). We do note that in Skinner and National Treasury Employees the Supreme Court did not apply the reasonable suspicion standard due to overriding concerns for public safety which we have already addressed. It was implied by the Court, however, that absent the public safety concerns, or other legitimate substantial government interest, the reasonable suspicion standard must be met. See National Treasury Employees, 489 U.S. at 678-79, 109 S.Ct. at 1397, 103 L.Ed.2d at 710-11. Again, however, these cases were decided in the context of public employers. However, their reasoning is instructive.
[1] Even without the privacy issue, the holding in Cordle does not forbid drug testing. West Virginia Code § 21-5-5b (1983) only discusses tests "utilizing mechanical measures of physiological reactions to evaluate truthfulness...." This obviously does not include drug testing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355121/ | 158 S.W.3d 607 (2005)
Helen PRINGLE, Independent Executrix of the Estate of Brantley Pringle, Deceased, Appellant,
v.
Toby MOON, Appellee.
No. 2-04-012-CV.
Court of Appeals of Texas, Fort Worth.
February 10, 2005.
*608 Wright & Greenhill, P.C., Brantley Ross Pringle Jr., Austin, for Appellant.
Dan Stroup, P.C., Dan Stroup, Longview, for Appellee.
Panel A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
OPINION
JOHN CAYCE, Chief Justice.
In this personal injury case, Helen Pringle, as independent executrix of the estate of Brantley Pringle, appeals from a judgment for Toby Moon. In two issues, Helen contends that the trial court erred in applying the wrong prejudgment interest rate and in calculating prejudgment interest on the damages found by the jury rather than on the judgment amount. We *609 will reverse the part of the judgment relating to prejudgment interest and remand to the trial court to recalculate prejudgment interest in accordance with this opinion.
On July 18, 2000, Brantley was driving in Parker County when he came upon a construction zone where Moon was working with tree removal equipment. Brantley's car struck a piece of equipment, which pushed Moon into another piece of equipment and caused him to sustain injuries. Because Moon sustained his injuries in the course and scope of his employment, he sought and received workers' compensation insurance benefits totaling $39,430.69 from Texas Mutual Insurance Company (Texas Mutual). Brantley filed suit against Moon, and Moon counterclaimed.
Before trial, Texas Mutual asserted a right to recovery of benefits paid to Moon. Brantley's liability insurance carrier, GEICO, then entered into an agreement with Texas Mutual whereby, in exchange for GEICO's cash payment, Texas Mutual assigned to GEICO Texas Mutual's right to recovery of the statutory workers' compensation lien in the amount of $39,430.69. GEICO then assigned to Brantley the subrogation recovery interest Texas Mutual had previously assigned to GEICO.
The case was tried to a jury in Parker County in June 2003. At the conclusion of the evidence, the jury returned a verdict finding Brantley negligent and liable to Moon for $44,243.06. The trial court rendered judgment on the verdict on July 7, 2003. Thereafter, Brantley filed a motion to modify the judgment because it did not reflect the amount of his workers' compensation lien. On August 20, 2003, the trial court granted Brantley's motion and vacated the July 7 judgment.
Brantley died suddenly on September 2, 2003. Helen, as independent executrix of Brantley's estate, was substituted as a party on October 24, 2003.
The trial court rendered a final judgment on October 30, 2003, allowing the credit for Brantley's workers' compensation lien and calculating prejudgment interest at the rate of ten percent per annum on the entire amount of damages found by the jury. Helen filed a motion to modify both the interest rate and the interest calculation in the judgment, which was overruled by operation of law. This appeal followed.
In her first issue, Helen contends that the trial court erred in applying the wrong prejudgment interest rate to the damages award. Helen argues that the correct prejudgment interest rate was the greater of five percent or the prime interest rate in effect when the final judgment was signed. Moon contends that the final judgment was signed July 7, 2003, that the October 30 judgment was merely a judgment nunc pro tunc, and that the trial court properly determined that the applicable interest rate is ten percent.
The prejudgment interest rate is controlled by statute. See Tex. Fin.Code Ann. §§ 304.003, 304.103 (Vernon Supp.2004-05). Because statutory construction is a question of law, we review the trial court's decision de novo. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002); Town of Flower Mound v. Stafford Estates, L.P., 71 S.W.3d 18, 26 (Tex.App.-Fort Worth 2002, no pet.). Under a de novo standard of review, the reviewing court exercises its own judgment and redetermines each legal issue. Subaru of Am., Inc. v. David McDavid Nissan Inc., 84 S.W.3d 212, 222 (Tex.2002); Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998).
A judgment in a personal injury case earns prejudgment interest. Tex. Fin.Code Ann. § 304.102 (Vernon Supp.2004-05). The prejudgment interest rate is *610 equal to the postjudgment rate applicable at the time of judgment. Id. § 304.103. During the regular 2003 legislative session, the legislature passed House Bills 4 and 2415, both of which contained nearly identical amendments to the finance code that effectively reduced the postjudgment interest rate from ten to five percent.[1] Both bills provided that the new interest rate would apply in a case in which a final judgment was "signed or subject to appeal on or after the effective date of this Act." Tex. H.B. 2415, § 2(a), 78th Leg., R.S., 2003 Tex. Gen. Laws 2096, 2097; Tex. H.B. 4, § 6.04, 78th Leg., R.S., 2003 Tex. Gen. Laws 847, 862. Because House Bill 4 went into effect on September 1, 2003, H.B. 4, § 23.02, 2003 Tex. Gen. Laws 847, 898, its prejudgment interest rate applies in any case in which a final judgment was signed or subject to appeal on or after September 1, 2003.[2]Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 74 (Tex.App.-Texarkana 2004, no pet.); see also Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 865 (Tex.App.-Fort Worth 2003, no pet.) (holding that judgment is "subject to appeal" when it fully and finally disposes of all parties and is therefore capable of being appealed).
The final judgment in this case was signed October 30, 2003. Moon's argument that the October 30 judgment was nunc pro tunc and therefore related back to the July 7 judgment is not supported by the record. The trial court expressly vacated the July 7 judgment in its order granting Pringle's motion to modify and at a later hearing twice acknowledged setting aside that judgment.[3]
A judgment that has been vacated has no legal effect. Shelby Operating Co. v. City of Waskom, 964 S.W.2d 75, 80 (Tex.App.-Texarkana 1997, pet. denied). When a judgment has been rendered and later set aside or vacated, the matter stands precisely as if there had been no judgment. Ferguson v. Naylor, 860 S.W.2d 123, 127 (Tex.App.-Amarillo 1993, writ denied); Sawyer v. Donley County Hosp. Dist., 513 S.W.2d 106, 109 (Tex.Civ. *611 App.-Amarillo 1974, no writ). Therefore, despite the trial court's statement of its intention that the October 30 judgment would relate back to the July 7 judgment, the October 30 judgment could not relate back because the July 7 judgment no longer existed.
Because the final judgment in this case was signed and became subject to appeal after September 1, 2003, the trial court erred in applying a prejudgment interest rate of ten percent instead of five percent. We sustain Helen's first issue.
In her second issue, Helen contends that the trial court improperly calculated prejudgment interest on the entire amount of damages found by the jury rather than the amount awarded to Moon after the credit for Brantley's workers' compensation lien. Helen argues that the trial court should have deducted the amount of Brantley's workers' compensation lien from the total damages before calculating prejudgment interest. Moon contends that the trial court correctly calculated prejudgment interest on the full amount of damages found by the jury.[4]
Because the calculation of prejudgment interest is a question of law, Travelers Ins. Co. v. Wilson, 28 S.W.3d 42, 47 (Tex.App.-Texarkana 2000, no pet.); Morgan v. Ebby Halliday Real Estate, Inc., 873 S.W.2d 385, 391 (Tex.App.-Fort Worth 1993, no writ); Strickland v. Coleman, 824 S.W.2d 188, 192-93 (Tex.App.-Houston [1 Dist.] 1991, no writ), we will review the issue de novo, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); Town of Flower Mound, 71 S.W.3d at 26.
Prejudgment interest is compensation allowed by law as "additional damages for lost use of money due as damages during the lapse of time between the accrual of the claim and the date of judgment." Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.1998). Prejudgment interest is calculated on the judgment amount, not the amount of damages awarded by the jury. C & H Nationwide, Inc. v. Thompson, 810 S.W.2d 259, 275 (Tex.App.-Houston [1st Dist.] 1991), aff'd in part and rev'd in part on other grounds, 903 S.W.2d 315 (Tex.1994); Owens-Corning Fiberglas Corp. v. Schmidt, 935 S.W.2d 520, 524 (Tex.App.-Beaumont 1996, writ denied). Any credits or offsets due a defendant should be deducted from the total damages awarded before not after prejudgment interest is calculated. Roberts v. Grande, 868 S.W.2d 956, 960 (Tex.App.-Houston [14th Dist.] 1994, no writ); Berry Prop. Mgt., Inc. v. Bliskey, 850 S.W.2d 644, 671 (Tex.App.-Corpus Christi 1993, writ dism'd by agr.); Sisters of Charity of Incarnate Word v. Dunsmoor, 832 S.W.2d 112, 118 (Tex.App.-Austin 1992, writ denied).
The trial court erred in failing to deduct the amount of Brantley's workers' compensation credit before it calculated prejudgment interest. Prejudgment interest should have been calculated on the sum of $4,812.37, which is the amount of the damages award less the offsetting credit for the workers' compensation lien. We sustain Helen's second issue.
*612 Having sustained both of Helen's issues, we reverse the part of the judgment awarding prejudgment interest and remand to the trial court to recalculate prejudgment interest in accordance with this opinion.
NOTES
[1] The legislation provided, in pertinent part:
"The postjudgment interest rate is: (1) the prime rate as published by the Federal Reserve Bank of New York on the date of computation; (2) five percent a year if the prime rate as published by the Federal Reserve Bank of New York as described by Subdivision (1) is less that five percent; or (3) 15 percent a year if the prime rate as published by the Federal Reserve Bank of New York described by Subdivision (1) is more than 15 percent." Act of June 20, 2003, 78th Leg., R.S., ch. 676, § 1, 2003 Tex. Gen. Laws 2096, 2097; Act of June 2, 2003, 78th Leg., R.S., art. 6, § 6.01, 2003 Tex. Gen. Laws 847, 862 (both codified at Tex. Fin.Code Ann. § 304.003(c)).
[2] We note that the five percent prejudgment interest rate actually went into effect on June 20, 2003 by virtue of House Bill 2415. See Tex. H.B. 2415, § 2(b), 78th Leg., R.S., Tex. Gen. Laws 2096, 2097 (providing that House Bill 2415 took effect immediately if it received a two-thirds vote of all the members elected to each house, which it did on June 20, 2003); Tesfa v. Stewart, 135 S.W.3d 272, 279 (Tex.App.-Fort Worth 2004, pet. denied) (noting that amendments to finance code interest rate were effective on both June 20 and September 1, 2003). Because Pringle did not raise this argument below, however, we cannot reverse the trial court on this ground. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997); Rogers v. Stell, 835 S.W.2d 100, 101 (Tex.1992).
[3] At a hearing on October 6, 2003 the court made the following statements:
[THE COURT]: The parties are incorrect, in that Mr. Pringle is deceased, was killed in a car wreck following the actual date of the jury verdict, and following the date I set aside the original final judgment. [Emphasis supplied.]
....
[THE COURT]: The Court's response to that is I signed a judgment in this case before the death of Mr. Pringle even though I did set it aside. [Emphasis supplied.]
[4] The case Moon cites to support his position, Brandon v. American Sterilizer Co., 880 S.W.2d 488 (Tex.App.-Austin 1994, no writ), is inapposite because it does not address the issue before us. The prejudgment issues in American Sterilizer involved the award of prejudgment interest for the time between the return of the verdict and the rendering of the judgment and the right of a workers' compensation lien assignee to receive credit for the full amount of the lien. See id. at 494-95. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355125/ | 158 S.W.3d 703 (2004)
G. Lee CRANFILL, M.D.
v.
UNION PLANTERS BANK, N.A., and Northeast Arkansas Management Company, LLC.
No. CA 03-1064.
Court of Appeals of Arkansas, Division IV.
April 14, 2004.
*704 Lyons, Emerson & Cone, P.L.C., by: Scott Emerson, Jonesboro, for appellant.
*705 Snellgrove, Langley, Lovett & Culpepper, by: Todd Williams, Jonesboro, for appellee Union Planters Bank, N.A.
Womack, Landis, Phelps, McNeill & McDaniel, by: D. Chris Gardner, Tom D. Womack, and Pamela A. Haun, Jonesboro, for appellee Northeast Arkansas Management Co., LLC.
JOHN MAUZY PITTMAN, Judge.
This is an appeal from the Craighead County Circuit Court's entry of judgment to appellee Union Planters Bank against appellant G. Lee Cranfill, M.D., in the amount of $136,570. The central issue in this appeal is whether appellant was primarily liable on that debt or whether he was simply an accommodation party and, thus, only a surety on it. We hold that he was primarily liable on the debt and affirm the circuit court's decision.
Factual and Procedural History
Appellant, a physician, was a shareholder of Northeast Arkansas Internal Medicine Clinic, P.A. (Clinic), in Jonesboro when it sold its fixed assets in 1995 to PhyCor, Inc., which agreed to manage the practices of the Clinic's physicians. The money paid by PhyCor to the Clinic was distributed to the physicians, and appellant received $227,018 as a result of the sale. As part of the total transaction, each physician signed a separate agreement with PhyCor that gave PhyCor the right to manage his practice if he left the Clinic's employ but remained in the area and competed against the Clinic. These agreements, including the one signed by appellant, contained a liquidated damages clause that permitted the physician to be released from that agreement upon payment of an amount equal to the proceeds he received in the sale. In 1999, the Clinic and PhyCor entered into another agreement whereby the Clinic, through two new entities, Northeast Arkansas Clinic, P.A., and appellee Northeast Arkansas Management Co., LLC (NEA Management), repurchased its assets. Another aspect of the consideration given to PhyCor for the purchase was each physician's signing of a release, confidentiality, non-disparagement, and settlement agreement with PhyCor. Appellant signed such an agreement, which released him from any responsibility under the management agreement, including his obligation to pay liquidated damages to PhyCor as stated above.
For this transaction, appellee Union Planters Bank, N.A. (Bank), loaned $16,750,000 to appellee NEA Management, which signed a promissory note. As a part of this loan, each physician, including appellant, signed a "Limited Commercial Guaranty." Appellant's guaranty for $376,756, a portion of the principal, contained the following provision:
Additionally, the Guarantor agrees that if at any time prior to the full repayment of the Indebtedness Guarantor's employment with Northeast Arkansas Clinic, P.A. is terminated for any reason, either voluntarily or involuntarily, other than the Guarantor's death, permanent disability, or attainment of age 62 years and normal retirement, Guarantor shall at that time be personally obligated to make immediate payment to Lender of the sum of $136,570 if termination occurs prior to the last day of the third year of the loan term, then decreasing to 66.7% of said amount until the end of the fourth year, then decreasing to 33.3% of said amount until the end of the fifth year, said payment to be applied on the balance of the Indebtedness then owing, the amount of said payment by the Guarantor to reduce and offset to the extent thereof the amount otherwise provided by the Guaranty granted hereunder, the remainder of the *706 Guaranty to continue to be an obligation of the Guarantor until full and complete repayment of the Indebtedness occurs. Failure of the Guarantor to make said payment upon Lender's demand shall be deemed a breach of this Guaranty, and Lender may bring legal proceedings against Guarantor to recover the payment owed without Borrower as a party to the proceeding. Provided, however, failure of Lender to exercise this right to make such demand and bring legal proceedings against Guarantor shall not be prejudicial to Lender or in any way affect Guarantor's obligations pursuant to this Guaranty agreement.
On June 20, 2001, appellant's employment with the Clinic was terminated. The Bank then demanded payment of the $136,570 set forth above from appellant. After he refused to pay it, the Bank sued him in this action. Appellant filed a third-party complaint against NEA Management, alleging that he was only an accommodation party to the loan. All parties moved for summary judgment, and a hearing was held on the motions. Stating that appellant was not an accommodation party, the trial court granted summary judgment to appellees:
Whether Dr. Cranfill is an accommodation maker will depend on whether the $227,018 payment to PhyCor was a sufficient direct benefit to him or if it is, as he characterizes it, a "remote" and "nominal" benefit to him in the form of a release from a "contingent liability" to PhyCor.
The trial court then set forth a thorough review of the guaranty's terms and explained its conclusion that appellant was not an accommodation party:
Simply put, the Bank lent $16,750,000 to NEAMC. NEAMC was to bear the responsibility for the repayment of the loan. Each of the physician members guaranteed the repayment of his proportional share of the loan. In Dr. Cranfill's case, it seems apparent to the court that the plaintiff, Union Planters Bank, sought to impose two distinct obligations upon Dr. Cranfill by way of the guaranty agreement. The first obligation is, what the court assumes to be Dr. Cranfill's proportional share of the $16,750,000 that NEAMC borrowed for the buy-back from PhyCor. That amount is $376,756, or 2.24929 percent of the total amount of the loan. The second obligation seeks to require a payment of $136,570 in the event of Dr. Cranfill's termination from his employment with the clinic. There is no question that Dr. Cranfill would be responsible for repayment of the $376,756 (or the portion thereof that had not been reduced by virtue of payments made by NEAMC) upon default by NEAMC. The question here is whether he is responsible for the $136,570 in the absence of a default and if he is, whether he is entitled to reimbursement from NEAMC in that amount.
There is not a wealth of Arkansas appellate authority on this precise issue. Dr. Cranfill points to Comment 1 to Ark.Code Ann. § 4-3-419, which offers the following example:
If X cosigns a note of Corporation that is given for a loan to Corporation, X is an accommodation party if no part of the loan was paid to X or for X's direct benefit. This is true even though X may receive indirect benefit from the loan because X is employed by Corporation or is a stockholder of Corporation, or even if X is the sole stockholder so long as Corporation and X are recognized as separate entities.
Dr. Cranfill maintains that the instant situation is essentially identical to the *707 example provided in Comment 1. Were it not for the payment of the $227,018 to PhyCor on Dr. Cranfill's behalf, the court would agree. While it is true, as Dr. Cranfill asserts that
"A guaranty has been defined as a collateral undertaking by one person to answer for payment of a debt of another. [G]uarantor is entitled to have his undertaking strictly construed. A guarantor cannot be held liable beyond the strict terms of his contract,"
and that
"A guarantor, like a surety, is a favorite of the law, and his liability is not to be extended by implication beyond the express limits or terms of the instrument, or its plain intent."
Dr. Cranfill's position must fail for two reasons. First of all, his obligation to pay the $136,570 is set out in the agreement itself. The court notes that it is called upon to discern the intent of the parties. To determine rights and duties under a contract, the court must determine the intent of the parties. This is to be accomplished by examining the written agreement to construe it and declare its legal effect. Duvall v. Massachusetts Indemnity and Life Insurance Co. [295 Ark. 412, 748 S.W.2d 650 (1988)]. The intent of the parties is to be determined from the whole context of the agreement; the court must consider the instrument in its entirety. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971); Fowler v. Unionaid Life Insurance Co., 180 Ark. 140, 20 S.W.2d 611 (1929). The two seeming contradictory obligations anticipate a possible change in status of the member physicians. It is clear that the intention at the time the instrument was executed was that as a member of NEAMC, Dr. Cranfill and all other members would be liable on it to the extent of their proportional share of the total amount borrowed from Union Planters. The obligation of the member physicians would not "ripen" unless and until NEAMC defaulted on the obligation. Upon a change of his then-existing status, i.e. becoming a non-member of NEAMC, the repayment obligation changed as well. Upon that change of status, Dr. Cranfill was obligated to pay the $136,570 immediately. The balance ($240,186 or such portion thereof as had not been reduced by payments made by NEAMC), would not be owed by Dr. Cranfill unless and until there was a default by NEAMC.
Secondly, the court does not find the payment of the $227,018 to be as inconsequential or indirect as Dr. Cranfill would have the court believe. In reaching this conclusion the court draws upon the rationale given by the Arkansas Court of Appeals in Nelson v. Cotham, 268 Ark. 622, 595 S.W.2d 693 (Ark.App.1980). In that case, Buxton and Cotham started Buxton Homes, Inc. The corporation entered into a contract with Nelson whereby Buxton Homes would convey title to Lot 158 to and build a home on the lot for the Nelsons. Buxton homes borrowed $75,000 from Pulaski Federal to complete the construction project. The note was signed by Cotham and Buxton and they delivered a mortgage on Lot 158. The funds were deposited into the corporation's checking account. Although the lien instrument restricted the use of the funds to making improvements on Lot 158, there was evidence that [t]he funds were applied to pay off other obligations of the corporation, including materials for other homes. The Court said that "Cotham's purpose in signing the note was not solely to lend his name as a surety to the other comakers. We are persuaded *708 that his primary purpose in signing the Note was to benefit his business interests by obtaining money to keep his corporation going with the expectation that it would ultimately repay the Note. Therefore he was not an accommodation endorser under the circumstances."
In the instant case, Dr. Cranfill stood to be rid of a management company, that he and the other physicians with whom he was associated, apparently felt impaired their business interests. More than that however, he stood to have discharged an obligation to repay $227,018 to PhyCor in the event he chose to practice his chosen field in the area. The benefit that he received was thus direct and substantial.
V. Conclusion
For the reasons stated herein, the court finds that Dr. G. Lee Cranfill is obligated to pay to Union Planters Bank $136,570 under the terms of the guaranty agreement. None of the balance of the amount guaranteed by him ($240,186 or such portion thereof as had not been reduced by payments made by NEAMC), will be owed by Dr. Cranfill unless and until there is a default by NEAMC. In that the court finds Dr. Cranfill not to be an accommodation maker, NEAMC is not liable to him for reimbursement.
On April 8, 2003, the trial court entered judgment for $136,570 to the Bank against appellant and dismissed appellant's third-party complaint against NEA Management. This appeal followed.
Standard of Review
Summary judgment, although no longer viewed as a drastic remedy, is to be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 150 S.W.3d 276 (2004). We review all evidence in the light most favorable to the nonmoving party and will reverse the trial court only when we determine that a material question of fact remains. Keller v. Safeco Ins. Co. of Am., 317 Ark. 308, 877 S.W.2d 90 (1994). We need only decide if the grant of summary judgment was appropriate, considering whether the evidentiary items presented by the moving party in support of the motion did not answer a material question of fact. Inge v. Walker, 70 Ark.App. 114, 15 S.W.3d 348 (2000).
Whether Dr. Cranfill Was an Accommodation Party
In his first point, appellant argues that the trial court erred, as a matter of law, in finding that he was not an accommodation party because he did not receive a direct benefit from the loan to the Clinic and because the guaranty contract's provision regarding his payment of $136,570 was not his direct personal obligation to the Bank.
An accommodation party is a person who lends his name to a note, and it is not contemplated that he will make payments on the obligation unless and until there is a default. See Ark.Code Ann. § 4-3-419 (Repl.2001). In subsection (a), this statute provides:
If an instrument is issued for value given for the benefit of a party to the instrument ("accommodated party") and another party to the instrument ("accommodation party") signs the instrument for the purpose of incurring liability on the instrument without being a direct beneficiary of the value given for the instrument, the instrument is signed by the accommodation party "for accommodation."
*709 Appellant points out that Comment 3 to Ark.Code Ann. § 4-3-419 states that "it is almost always the case that a co-maker who signs with the words of guaranty after the signature is an accommodation party." The commentary to a statute is not controlling over the statute's clear language but is a highly persuasive aid to construing that statute. Huffman v. Arkansas Judicial Discipline & Disability Comm'n, 344 Ark. 274, 42 S.W.3d 386 (2001).
Appellant also argues: "It is evident from the example in the Comment that one must receive some or all of the actual loan funds in order to not be considered an accommodation maker under Ark.Code Ann. § 4-3-419(a)." This example in Comment 1 to the statute reads as follows:
For example, if X cosigns a note of Corporation that is given for a loan to Corporation, X is an accommodation party if no part of the loan was paid to X or for X's direct benefit. This is true even though X may receive indirect benefit from the loan because X is employed by Corporation or is a stockholder of Corporation, or even if X is the sole stockholder so long as Corporation and X are recognized as separate entities.
In reviewing issues of statutory interpretation, we are not bound by the trial court's decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. State Farm Mut. Auto. Ins. Co. v. Henderson, supra. The basic rule of statutory construction is to give effect to the intent of the legislature. Central & Southern Cos. v. Weiss, 339 Ark. 76, 3 S.W.3d 294 (1999). In considering the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000). If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id.
The question central to this appeal, therefore, is whether appellant received a direct benefit from the transaction, within the meaning of the statute. Appellant argues that he did not receive a direct benefit from the Bank's loan to the Clinic because he did not receive any of the funds that the Clinic borrowed from the Bank to pay PhyCor, and he asserts that his release from his obligation to PhyCor was not the type of direct benefit contemplated by the statute.
The intention of the parties is the most significant element in determining accommodation status, and when a person receives no direct benefit from an executed note, it is likely that he will be regarded as an accommodation party. Mobley v. Harmon, 304 Ark. 500, 803 S.W.2d 900 (1991). The status of a party to a note must be determined from the circumstances in existence at the time the note is issued. Nelson v. Cotham, 268 Ark. 622, 595 S.W.2d 693 (Ark.App.1980). Clearly, a party can receive a direct benefit from a loan without receiving any of the proceeds. In Nelson v. Cotham, we held that Mr. Cotham, an officer, director, and stockholder of Buxton Homes, Inc., was not an accommodation party to a note he signed, the proceeds of which went to the corporation:
It is clear from the record that the $75,000.00 was borrowed from PFS in order to fulfill the contract with appellants, but the proceeds were disbursed by Mr. Cotham, as secretary-treasurer, on various construction projects of the Corporation. This was obviously an effort to keep the Corporation, in which he had a substantial interest, afloat. The motive with which an act was done may *710 be ascertained and determined by inference from the facts and circumstances connected with the transactions and the parties to it. Seaboard Finance Co. v. Dorman, 4 Conn.Cir. 154, 227 A.2d 441 (1966), 90 ALR 3d 342. Mr. Cotham did keep the Corporation afloat at that time and, as an officer, director and stockholder, was benefited to that extent. Lasky v. Berger, Colo.App., 536 P.2d 1157 (1975); MacArthur v. Cannon, 4 Conn.Cir. 208, 229 A.2d 372, cert. den. 154 Conn. 748, 227 A.2d 562 (1967).
In Lasky v. Berger, supra, the court affirmed a judgment dismissing a comaker's action to recover the amount he paid on the note from the other maker, where his primary purpose in signing the note was to benefit his business interests. The court said it was proper to consider that his business interests were in fact benefited even though that benefit was subsequently eliminated when he was required to pay the note, because the status of a party to a note must be determined based on the circumstances in existence at the time the note was signed. Accordingly, the court added in Lasky v. Berger, the receipt of benefits at that time could be considered as substantial evidence that the party did not sign as an accommodation maker but as a principal comaker. See also Wohlhuter v. St. Charles Lumber & Fuel Co., 25 Ill.App.3d 812, 323 N.E.2d 134, aff'd 62 Ill.2d 16, 338 N.E.2d 179 (1975).
....
While PFS did insist that Mr. Cotham personally sign the Note before credit would be extended to the Corporation, this record shows that Cotham's purpose in signing the Note was not solely to lend his name as a surety to the other comakers. We are persuaded that his primary purpose in signing the Note was to benefit his business interests by obtaining money to keep his corporation going with the expectation that it would ultimately repay the Note. Therefore he was not an accommodation endorser under the circumstances. We hold that his payment of the Note to PFS ended the matter as far as these appellants were concerned as Mr. Cotham was a comaker.
268 Ark. at 628-30, 595 S.W.2d at 697-98.
It has been held that release from a personal obligation can amount to a direct benefit from a loan. In Mooney v. GR & Assocs., 746 P.2d 1174, 1177 (Utah App.1987), the appellate court found that a party claiming accommodation party status had actually received a direct benefit from a loan, stating:
We find first that Hagan received both direct and indirect benefits from the transaction, observing, like the trial court, that "Hagan benefited from the transaction by being released from his personal guarantee on the real estate contract," and that "his partnership was the recipient of a substantial promissory note from other participants in the transaction."
Also, the settlement of a legitimate legal controversy, whatever its merits, has been held to constitute a direct benefit for this purpose. See Robinson Bros. Drilling, Inc. v. First Nat'l Bank, 9 F.3d 871 (10th Cir.1993) (applying Oklahoma law). In First NH Bank v. Lawlor, 600 A.2d 1120, 1121 (Me.1992), the court denied accommodation-party status to a party who "expected employment, a bonus, and ownership in the enterprise" as a result of a loan. See also James J. White and Robert S. Summers, Uniform Commercial Code § 16-11(a) (4th ed.1995).
In our view, part of the consideration given in return for the Clinic's payment of *711 over $16 million to PhyCor was the release of Dr. Cranfill from his obligation to PhyCor. Under the authority of the cases discussed above, we hold that the trial court did not err in concluding that this release was a direct and substantial benefit to appellant. We therefore conclude that he was not an accommodation party.
A Direct Personal Obligation
Appellant further argues that his agreement to repay $136,570 to the Bank was not a separate agreement, distinct from his guaranty, because he signed only one document, entitled a "Limited Commercial Guaranty," in which he is referred to as a guarantor, not an obligor, in the provision dealing with the $136,570. He states that the document, as a whole, is only one of guaranty.[1]
The first rule of interpretation of a contract is to give the language employed the meaning that the parties intended, and the court must consider the sense and meanings of the words used by the parties as they are taken and understood in their plain, ordinary meaning. First Nat'l Bank v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992), cert. denied, 507 U.S. 919, 113 S.Ct. 1280, 122 L.Ed.2d 673 (1993). It is the duty of the court to construe a contract according to its unambiguous language without enlarging or extending its terms. North v. Philliber, 269 Ark. 403, 602 S.W.2d 643 (1980). In regard to the construction of an agreement's terms, the initial determination of the existence of an ambiguity rests with the court. Fryer v. Boyett, 64 Ark.App. 7, 978 S.W.2d 304 (1998). When a contract is unambiguous, its construction is a question of law for the court. Id. A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Id.
Clearly, the agreement appellant signed is not susceptible to more than one equally reasonable construction. We must note that, in the paragraph entitled "Nature of Guaranty," it is stated: "Guarantor intends to guarantee the collection of all of the Indebtedness within the limits set forth in the preceding section [regarding maximum liability] of this Guaranty." The agreement then lists the events that must occur before the Bank will exercise its right to collection from appellant. However, from its terms, this paragraph specifically excludes the Bank's right to seek immediate payment of $136,570 if appellant's employment with the Clinic terminates before the end of the fifth year of the term of the note. Therefore, it is clear that appellant has a direct, personal obligation to the Bank that is separate from his guaranty of NEA Management's debt. Because the trial court's construction of the agreement as creating a personal obligation to the Bank, even if there has been no default by NEA Management, was correct, we also affirm on this point.
Whether a Question of Fact Remained
In his second point, appellant argues in the alternative that, if this court does not find that, as a matter of law, he was an accommodation party, whether he had that status was a question of fact and, thus, the summary judgment should be reversed. Appellant bases this argument on the following: (a) according to Ark.Code Ann. § 4-3-419(c), there is a presumption that a person is an accommodation party when he signs an instrument with the words "guaranty" *712 or words to that effect; (b) Comment 3 to Ark.Code Ann. § 4-3-419 states that whether a party is an accommodation party is a question of fact; (c) the guaranty is ambiguous, which permits the introduction of parol evidence and requires the rules of construction of contracts to be applied.
Appellant points out that the document he signed consistently referred to him as a guarantor. It is correct that Ark.Code Ann. § 4-3-419(c) provides that there is a presumption that a person is an accommodation party when he signs an instrument with the words "guarantor," "surety," or words to that effect. Comment 3 to this statute provides: "A party challenging accommodation party status would have to rebut this presumption by producing evidence that the signer was in fact a direct beneficiary of the value given for the instrument." It is also true that Comment 3 to this statute expressly provides that whether a party is an accommodation party is a question of fact. It has often been held that whether one is an accommodation party is a question of fact, and the burden of proof is upon the party claiming to be an accommodation party. Riegler v. Riegler, 244 Ark. 483, 426 S.W.2d 789 (1968); Womack v. First State Bank, 21 Ark.App. 33, 728 S.W.2d 194 (1987). However, appellant waived this argument by moving for summary judgment.
The trial court found that the parties' cross-motions for summary judgment amounted to their consent for it to determine whether appellant was an accommodation party. The trial court made the following statement about the propriety of deciding this issue by summary judgment:
Whether or not a person signed as an accommodation party is ordinarily a question of fact. The parties agree on virtually all of the pertinent facts that gave rise to the document in question, and that are necessary to reach a solution of this central question. They have however failed to agree on that remaining central fact. By submitting this issue to the court by way of motions for summary judgment, it appears that they are prepared to have the court make this determination.
In Tunnel v. Progressive Northern Insurance Co., 80 Ark.App. 215, 217-18, 95 S.W.3d 1, 2-3 (2003), we wrote:
Normally, on a summary judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Aloha Pools & Spas, Inc. v. Employer's Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). But in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgments, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. McCutchen v. Patton, 340 Ark. 371, 10 S.W.3d 439 (2000). We further note that where the meaning of a contract does not depend on disputed extrinsic evidence, the construction and legal effect of the policy are questions of law. See Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000).
Accord McGough v. Pine Bluff Sch. Dist., 79 Ark.App. 235, 85 S.W.3d 920 (2002).
Appellant argues that the filing of cross-motions for summary judgment does not "inevitably lead to the conclusion that there are no material issues of fact in dispute." Citing Wood v. Lathrop, 249 Ark. 376, 459 S.W.2d 808 (1970), he argues that the fact that both parties have moved *713 for summary judgment does not establish that there is no issue of fact; a party may concede that there is no issue if his legal theory is accepted and yet maintain that there is a genuine dispute as to material facts if his opponent's theory is adopted. Appellant is correct. We followed the reasoning of Wood v. Lathrop in Moss v. Allstate Insurance Co., 29 Ark.App. 33, 776 S.W.2d 831 (1989), and Heritage Bay Property Regime v. Jenkins, 27 Ark.App. 112, 766 S.W.2d 624 (1989).
In Chick-A-Dilly Properties, Inc. v. Hilyard, 42 Ark.App. 120, 856 S.W.2d 15 (1993), we held that a party that had moved for summary judgment and had represented to the trial court that the sole issue was ready for the court to decide as a matter of law could not argue on appeal that the court erred in ruling against it on that point as a matter of law. In that case, the parties made cross motions for summary judgment on the same legal theory and the same material facts. We explained:
The leading case in Arkansas on the filing of cross motions for summary judgment is undoubtedly Wood v. Lathrop, 249 Ark. 376, 459 S.W.2d 808 (1970). In an opinion written by Justice George Rose Smith the court said:
Both Mrs. Wood and the Lathrops filed motions for summary judgment, setting forth the facts substantially as we have outlined them. We may say at this point that we do not agree with the appellees' contention that a party who files a motion for summary judgment after his adversary has filed such a motion thereby concedes that no material issue of fact exists in the case. That argument is opposed both to reason and to authority.
When such cross motions are filed each movant is contending for the purpose of his own motion that there is no material issue of fact in the case, but there is no reason at all to say as an inflexible rule that he also admits the nonexistence of any factual issue with respect to his adversary's motion. Our summary judgment statute was copied from Rule 56 of the Federal Rules of Civil Procedure, with respect to which this statement is made in Barron and Holtzoff's Federal Practice & Procedure, § 1239 (Wright's Ed., 1958):
The fact that both parties have moved for summary judgment does not establish that there is no issue of fact. A party may concede that there is no issue if his legal theory is accepted and yet maintain that there is a genuine dispute as to material facts if his opponent's theory is adopted. Thus, both motions should be denied if the court finds that there is actually a genuine issue as to a material fact.
249 Ark. at 379, 459 S.W.2d at 809-10.
The short form of the rule in Wood v. Lathrop may be found in 10A Charles A. Wright et al.[, Arthur R. Miller & Mary Kay Kane], Federal Practice and Procedure § 2720, at 19 (2d ed. 1983): "[T]he mere fact that both parties seek summary judgment does not constitute a waiver of a full trial or the right to have the case presented to a jury." There are sound reasons for the rule:
For example, a defendant moving for summary judgment on the ground that the claim is barred by the statute of limitations may contend that there is no issue of fact as to that defense, but if the defense is held insufficient as a matter of law, he still may argue that there is an issue of fact as to his liability on the claim asserted against him.
Wright § 2720 at 21-22.
*714 The general principle set forth in Wood has been subsequently followed in the supreme court and in this court. Dickson v. Renfro, 263 Ark. 718, 569 S.W.2d 66 (1978); Moss v. Allstate Ins. Co., 29 Ark.App. 33, 776 S.W.2d 831 (1989); Heritage Bay Property Regime v. Jenkins, 27 Ark.App. 112, 766 S.W.2d 624 (1989).
There are however decisions of both courts holding that an appellant may find himself barred from raising on appeal the argument that an issue of fact remains to be decided when he has contended to the contrary in the trial court. In Bibler Brothers Timber Corp. v. Tojac Minerals, Inc., 281 Ark. 431, 436, 664 S.W.2d 472, 474-75 (1984), the court said:
Appellant's final point for reversal is that the trial court erred in granting judgment on the pleadings because material issues of fact were unresolved. Specifically, appellant alleges the issue in dispute is whether the lease was subject to forfeiture due to appellees' failure to drill and develop the non-unitized acreage. However, the failure to drill and develop was waived when the appellant asserted positively in its Motion for Summary Judgment:
"That there is no genuine issue as to any material fact and that Plaintiff [appellant] is entitled to a judgment as a matter of law."
In Neel v. Citizens First State Bank of Arkadelphia, 28 Ark.App. 116, 120, 771 S.W.2d 303, 305 (1989), this court said:
Appellant's argument that issues of fact remain to be tried is entirely inconsistent with her position below. First, appellant offered no proof in response to appellee's affidavits and exhibits. Second, appellant clearly waived this issue and agreed with appellee that no material issues of fact remained for trial. Accordingly, appellant may not assert this argument on appeal. See Briscoe v. Shoppers News, Inc., 10 Ark.App. 395, 401, 664 S.W.2d 886 (1984) (one may not complain of action he has induced, consented to, or acquiesced in).
We think the cases are entirely reconcilable. The case which comes closest to explaining the distinction is Schlytter v. Baker, 580 F.2d 848, 849-50 (5th Cir.1978):
Appellant is not estopped by the mere filing of his motion for summary judgment from now asserting that there are genuine issues of fact. As a general rule the filing by both parties of opposing motions for summary judgment will not warrant a court's granting either party's motion if, indeed, there exists a genuine factual dispute concerning a material issue.... [T]he rationale of this rule lies in the fact that each party may be basing its motion on a different legal theory dependent on a different set of material facts.
When the parties proceed on the same legal theory and on the same material facts, however, the basis for the rule disappears. Thus, in qualifying the general rule, this Court has said:
Nonetheless, cross motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and material facts are dispositive.
(Citations omitted.)
In the case at bar, trial counsel for the appellants, during his argument on the cross motions for summary judgment made it clear to the trial court that the dispute between the parties focused on *715 which consumer price index applied and that that issue was ready for the court to decide as a matter of law. Here, as in Schlytter, the parties proceeded on the same legal theory and the same material facts. Although we do not believe the trial judge was thereby bound to grant summary judgment to one side or the other, under the circumstances presented here the appellants may not argue that the court erred in deciding the issue as one of law.
42 Ark.App. at 126-29, 856 S.W.2d at 18-20.
We hold that, even applying the reasoning of Wood v. Lathrop, the trial court's entry of summary judgment should be affirmed. The parties proceeded on the same legal theory (whether appellant is an accommodation party, to be determined by whether he received a benefit within the terms of Ark.Code Ann. § 4-3-419(a)) and the same material facts. Therefore, after all the parties moved for summary judgment, the trial court was correct in treating the issue as one to be decided in that manner.
Appellant further contends that the guaranty agreement is ambiguous because the provision requiring the payment of $136,570 refers to him as a guarantor. Therefore, he argues, the rules of construction require that the agreement be construed against the drafter (the Bank) and a question of fact exists for trial. See Karnes v. Trumbo, 28 Ark.App. 34, 770 S.W.2d 199 (1989). It is true that, if an agreement is ambiguous, it should be construed strictly against the drafter. See Stacy v. Williams, 38 Ark.App. 192, 834 S.W.2d 156 (1992). Because this rule does not apply at all if the contract is unambiguous, as is the case here, we find no merit in this argument.
Appellant's Rights and Defenses As an Accommodation Party
Appellant further argues that the Bank cannot sue him for collection because none of the conditions set forth in Ark.Code Ann. § 4-3-419(d) have occurred and that, as an accommodation party, he is entitled to reimbursement from the Clinic if he is required to pay the Bank. We disagree. Because appellant was not an accommodation party, he cannot prevail on these issues.
Affirmed.
ROBBINS and BIRD, JJ., agree.
NOTES
[1] He also argues, in this point, that if this court holds that he has a direct personal obligation to the Bank, as an accommodation party, he has the right to seek reimbursement from the Clinic. This issue is addressed below. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355048/ | 145 Cal. App. 2d 48 (1956)
301 P.2d 921
LORENZO PUCCINELLI et al., Appellants,
v.
BERNARD NESTOR et al., Respondents.
Docket No. 16877.
Court of Appeals of California, First District, Division One.
October 11, 1956.
Albert Picard for Appellants.
Gupta & Gupta for Respondents.
PETERS, P.J.
The plaintiffs appeal from an "Order Confirming Award of Arbitrators and Judgment of the Same." The appeal is on a minimum clerk's transcript. The only point raised is that the order and judgment were entered in a proceeding in which the applicants for the order failed to attach physically to their application the supporting documents required by section 1291 of the Code of Civil Procedure. That section provides:
"Upon the granting of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith in the court wherein said application was filed.
"The party applying for an order confirming, modifying, or correcting an award shall attach to such application copies of the following papers, to wit: the agreement; the selection or appointment of the arbitrator or arbitrators and the umpire, if any; the selection or appointment, if any, of any additional *49 arbitrator or umpire; each written extension of the time, if any, within which to make the award; and the award.
"The judgment when rendered by the court shall be docketed as if it were rendered in an action."
The facts as disclosed by the clerk's transcript are as follows: On April 29, 1955, the respondents filed an application for an order confirming the award of arbitrators. This application, so far as pertinent here, alleges that appellants, on April 19, 1954, filed an action against respondents for the dissolution of a partnership and for declaratory relief, and respondents filed an answer thereto; that on December 28, 1954, the parties entered into a stipulated agreement to arbitrate the controversy, which agreement was "filed herein by the parties in these proceedings on March 17, 1955, which is incorporated by reference as if set forth in haec verba"; that pursuant to this agreement named arbitrators were appointed by the parties; that the agreement provided that the parties would comply with the terms of the award within 14 days after it was made, and that the determination of the arbitrators was to be binding; that the arbitrators made their award on February 21, 1955, and delivered the same to the parties; that an acknowledged copy of the award "was filed in this action in this court on April 5, 1955, and is made a part hereof by reference as if set forth in haec verba"; that more than 14 days have passed since the award was made, but appellants refuse to perform even though respondents are willing to perform.
The trial court issued its order and judgment confirming the award on May 12, 1955, the order reciting that the application for the confirmation order incorporated "copies of papers included in the file of this action," and had been properly served on all parties.
[1, 2] Appellants' sole contention is that the documents mentioned in section 1291 of the Code of Civil Procedure were not physically attached to the application for the confirmation order, and therefore, so it is argued, the court was without power to entertain the application. No other attack is made on the award or the order confirming it.
The point lacks merit. The record before this court indicates that the required papers were all in the file of the action, that the trial judge knew this and had examined the file, and that the basic documents were incorporated by reference into the application. The purpose of the code section is to be sure that the trial judge has access to the arbitration agreement, *50 the names of the arbitrators and the award. Here the trial judge had such access. There is nothing in the record to show that appellants ever objected in the trial court to the failure to attach physically the enumerated documents, nor do they point out how they were prejudiced by such failure. Under such circumstances, there was substantial compliance with section 1291, and that is all that is required.
The order and judgment appealed from are affirmed.
Bray, J., and Wood (Fred B.), J., concurred.
Appellants' petition for a hearing by the Supreme Court was denied December 5, 1956. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355064/ | 144 Ga. App. 239 (1977)
240 S.E.2d 897
PAIR DEVELOPMENT COMPANY, INC.
v.
CITY OF ATLANTA.
54551.
Court of Appeals of Georgia.
Argued September 21, 1977.
Decided November 14, 1977.
Rehearing Denied December 5, 1977.
Wesley Williams, for appellant.
Ferrin Y. Mathews, J. M. Harris, Jr., for appellee.
McMURRAY, Judge.
After the collapse or cave-in of an old sewer line on private property, the City of Atlanta, through its agents (construction crew and equipment), moved on the private property to repair the cave-in, remaining there from four to eight weeks. During that period of time two old garages (one building) were demolished by the city. The owner contends certain spray painting equipment was destroyed and other buildings on the property allegedly developed cracks and the basements of other buildings were flooded *240 due to the overflow of water to and from the sewer.
The owner of the property sued the City of Atlanta. In Count 1 it sought damages in the amount of $20,000 for just and adequate compensation for the wrongful taking of private property, resulting from the wrongful trespass thereon. In Count 2 it sought damages in the amount of $20,000 for the constitutional violation of plaintiff's rights in that the defendant took private property through damage in the amount of $20,000 for public purposes without first paying just and adequate compensation. In Count 3 petitioner alleged that the taking amounted to a nuisance for which it suffered damage in the amount of $20,000. Defendant city answered, denying the averments of the complaint (other than jurisdiction) and specifically pleaded the defense of governmental immunity in that the alleged acts were done by the defendant in the performance of governmental functions pursuant to the laws of the State of Georgia and valid ordinances of the city.
The case proceeded to trial and it was established that the sewer line had been constructed on plaintiff's property around 1923. The city had received a call informing them that a sewer line had apparently collapsed on the property. The city contends it informed the owner of the property thereof that a building thereon was about to collapse and that it was dangerous for the men to work in and about it. The city further contends that the owner advised them that it was all right to tear the building down, and it is undisputed that employees of the city did destroy portions of a concrete block building situated on plaintiff's property. This building was partially collapsed because of the sewer cave-in and was ultimately demolished by the city crews. A witness for the city testified that he knew the city had an easement for the sewer, but it was not recorded; and it was not in evidence in this case.
At the completion of the plaintiff's case he abandoned Count 3 which was the nuisance count, but contended that he was entitled to judgment for $20,000 on either Count 1 or 2, but not as to both. Thereupon, defendant moved for directed verdict as to both Counts 1 and 2 under the authority of Johnson v. City of Atlanta, 117 Ga. App. 586 *241 (161 SE2d 399), contending that the evidence showed that the defendant was in the operation and functions of maintenance of its sewerage and drainage system, a governmental function, and under the doctrine of governmental immunity the city was not liable in this instance. The motion was sustained, and judgment was entered in favor of the defendant. Motion for new trial as amended was filed and denied, and plaintiff appeals. Held:
1. A municipal corporation shall not be liable for failure to perform, or for errors in performing, its legislative or judicial powers; but shall be liable for neglect to perform, or for improper or unskillful performance of its ministerial duties. See Code § 69-301. Generally, the decisions of this state have held that in the construction, installation and maintenance of a sewerage system, a municipality is performing a governmental function. City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S.E. 345); City Council of Augusta v. Williams, 206 Ga. 558 (57 SE2d 593); City of Rome v. Turk, 235 Ga. 223, 224 (219 SE2d 97); City Council of Augusta v. Williams, 81 Ga. App. 132 (58 SE2d 208); City of Douglas v. Cartrett, 109 Ga. App. 683 (137 SE2d 358).
2. Further, if the owner of land shall dedicate a part of his property (by easement) or by his acts, and the same shall be used for such a length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, he (or his successors in title) may not afterwards appropriate it to private purposes. Code § 85-410. Compare Rome Gas-Light Co. v. Meyerhardt, 61 Ga. 287; Mathis v. Holcomb, 215 Ga. 488, 490 (111 SE2d 50).
3. If the incident causing the damage is for a "public purpose," which is synonymous with "public use," it amounts to a taking under the Constitution (Code Ann. § 2-301; Art. I, Sec. III, Par. I, Const. of 1945) without just and adequate compensation being first paid if the city takes private property without first paying for it. Sheppard v. City of Edison, 161 Ga. 907 (132 S.E. 218); Housing Authority of City of Atlanta v. Johnson, 209 Ga. 560, 562 (74 SE2d 891); Johnson v. City of Atlanta, 117 Ga. App. 586, 588, supra.
*242 4. Here the city was in the exercise of a governmental function as shown by the evidence. But the evidence also failed to show the extent of the easement, where the easement was located on the property, or the extent of the work in performing the governmental function. But in carrying out the function of repairing a sewer line which was washing out a hole, the city demolished private property of the plaintiff, albeit an issue of fact was created as to whether or not it was with permission of the owner. Under such cases as City of Atlanta v. Green, 67 Ga. 386; Vandevender v. City of Atlanta, 150 Ga. 443 (104 S.E. 227); City of Atlanta v. Due, 42 Ga. App. 797, 802 (157 S.E. 256); City of Atlanta v. Minder, 83 Ga. App. 295, 296 (2) (63 SE2d 420); and City of Atlanta v. Kenny, 83 Ga. App. 823 (2, 3) (64 SE2d 912), it was a jury issue for determination, even if the city entered the property to repair a sewer line as to whether or not in carrying out a governmental function it took the private property of the owner for public use in repairing the sewer.
5. The city may also be liable for trespass for which the plaintiff would be entitled to compensation for the taking or damaging of private property since it is not clear as to the location of the sewer easement or where the work allegedly occurred, etc. See City of Rome v. Turk, 235 Ga. 223, 226 (2), supra.
6. For all of the foregoing reasons the trial court erred in directing the verdict in favor of the defendant and entering judgment in accordance with the verdict.
Judgment reversed. Bell, C. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355096/ | 158 S.W.3d 485 (2005)
The STATE of Texas
v.
Lee Michael ALLEY, Appellee, & Patricia Ann Delarosa, Appellee.
Nos. PD-1300-04, PD-1301-04.
Court of Criminal Appeals of Texas, En banc.
March 9, 2005.
*486 George McCall Secrest Jr., Houston, for Appellant.
Alan Curry, Assist. DA, Houston, Matthew Paul, State's Attorney, Austin, for State.
WOMACK, J., delivered the opinion for a unanimous Court.
The issue in this case is whether the State may appeal from a justice court directly to a court of appeals. We hold that it may not.
The State filed complaints, in the Justice Court for Precinct 5 of Harris County, that accused the appellees of separate offenses of failure to stop at a stop sign. The justice court granted the appellees' motions to dismiss the misdemeanor complaints against them because neither complaint alleged the specific location of the offense.
The State filed notices of appeal in the justice court. The notices said, "The State now gives written Notice of Appeal to the Court of Appeals sitting at Houston, Texas." The appeals went to the First Court of Appeals.
The appellees argued that courts of appeals did not have jurisdiction. They relied on Articles 4.08 and 45.042 of the Code of Criminal Procedure, which speak to the county courts' jurisdiction of appeals from justice courts.
Article 4.08 reads, "The county courts shall have appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction."
Article 45.042 reads:
"(a) Appeals from a justice or municipal court, including appeals from final judgments in bond forfeiture proceedings, shall be heard by the county court except in cases where the county court has no jurisdiction, in which counties such appeals shall be heard by the proper court.
"(b) Unless the appeal is taken from a municipal court of record and the appeal is based upon error reflected in the record, the trial shall be de novo."
Also relevant are sections of the Government Code that give the constitutional county courts "appellate jurisdiction in criminal cases of which justice courts and *487 other inferior courts have original jurisdiction,"[1] and that give the statutory county courts "jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts."[2]
The State based its argument that a State's appeal will be heard by the court of appeals on the first sentence of Article 44.01(f) of the Code of Criminal Procedure: "The court of appeals shall give precedence in its docket to an appeal [by the State] filed under Subsection (a) or (b) of this article." Subsections (a) and (b) set out most of the grounds of appeal by the State; the only other grounds are in Subsections (c) and (k), which authorize cross-appeals and appeals in habeas-corpus proceedings involving probationers. The State filed these appeals under Subsection (a): "The State is entitled to appeal an order of a court in a criminal case if the order: (1) dismisses an indictment, information, or complaint...."
The court of appeals concluded that "Article 44.01 allow[s] the State to appeal, and Articles 4.08 and 45.042 establish[] the court with the initial appellate jurisdiction to hear the case."[3] Because "the State should have brought [its] appeals to the county courts," the court of appeals dismissed the State's appeal for lack of jurisdiction.[4]
We granted review.
The prosecutions in these cases were for the offense of failure to stop at a stop sign.[5] The offense is a misdemeanor[6] that is punishable by fine only.[7]
"Justices of the peace shall have original jurisdiction in criminal cases: (1) punishable by fine only...."[8] Therefore, the justice court had original jurisdiction of these cases.
"[I]n criminal cases of which justice courts and other inferior courts have original jurisdiction," Article 4.08 of the Code of Criminal Procedure provides that "the county courts shall have appellate jurisdiction." Similarly, Article 45.042 provides that "Appeals from a justice or municipal court ... shall be heard by the county court except in cases where the county court has no jurisdiction, in which counties such appeals shall be heard by the proper court."
Article 45.042 also says, "Unless the appeal is taken from a municipal court of record and the appeal is based on error reflected in the record, the trial shall be de novo." Likewise, Article 44.17 provides, "In all appeals to a county court from justice courts and municipal courts other than municipal courts of record, the trial shall be de novo in the trial in the county court, the same as if the prosecution had been originally commenced in that court."
As the First Court of Appeals' opinion put it, "The State asks us to hold Article 4.08 inapplicable on a theory that `the appeal from a justice court to a county court is clearly intended to be an appeal by the defendant because such appeals are required to be trials de novo.' ... The State contends that Article 44.01 therefore `effectively *488 prevails' over Article 4.08."[9]
The State questions how there can be a trial de novo in cases in which it is appealing the justice court's rulings which granted the defendants' motions to dismiss the complaint. It queries, "Is the trial de novo to be upon the complaint that the justice court had previously dismissed in which case the justice court's ruling on the defendant's motion to dismiss would be ignored?" and "Is the trial de novo to be upon another complaint or an amended complaint in which case the State's right to appeal the justice court's ruling would have been abrogated?"
The answer to the State's first rhetorical question is, Yes. A trial de novo on a complaint that a justice court dismissed would ignore the justice court's ruling. That is what Article 44.17 means when it says "the trial shall be de novo in the trial in the county court, the same as if the prosecution had been originally commenced in that court."
The State also argues that article 44.01(f) "contemplates that a State's appeal brought under that statute will be heard by the court of appeals." Article 44.01(f) provides that "The court of appeals shall give precedence in its docket to an appeal filed under Subsection (a) or (b) of this article." The State contends that this provision about precedence in court of appeals' dockets means that courts of appeals have jurisdiction of every appeal filed under subsection (a) or (b). The language of the statute will not bear the weight of that inference.
Article 44.01(f) speaks only to the precedence of appeals of which the court of appeals has jurisdiction. It cannot be read to create jurisdiction, or to assume the existence of a jurisdiction that is not elsewhere granted. The basic principles of statutory construction require that all the provisions be given effect. This is easily and naturally done. Article 44.01(a) allows the State to appeal certain orders. Articles 4.08 and 45.042 establish that appeals from a justice court must be taken to the county court. Articles 44.17 and 45.042 specify that an appeal to county court shall be conducted de novo. If the State takes an appeal after such a de novo proceeding in the county court, Article 44.01(f) means that that appeal shall be given precedence by the court of appeals.
We affirm the judgment of the Court of Appeals.
NOTES
[1] Tex. Gov't Code § 26.046.
[2] Id., § 25.0003(a).
[3] State v. Alley, 137 S.W.3d 866, 868 (Tex.App.-Houston [1st Dist.] 2004).
[4] Id., at 867.
[5] See Tex. Transp. Code § 544.010.
[6] See id., § 542.301.
[7] See id., § 542.401.
[8] Tex.Code Crim. Proc. art. 4.11(a).
[9] Alley, supra note 3 at 868. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355095/ | 144 Ga. App. 160 (1977)
240 S.E.2d 888
PIEDMONT PHARMACY, INC.
v.
PATMORE et al.
54321.
Court of Appeals of Georgia.
Argued September 14, 1977.
Decided October 11, 1977.
Rehearing Denied December 1, 1977.
Freeman & Hawkins, William Q. Bird, Paul M. Hawkins, H. Lane Young, II, for appellant.
Ross & Finch, A. Russell Blank, T. M. Smith, for appellees.
SHULMAN, Judge.
This case is before us to review an order by the trial court allowing the addition of appellant as a party defendant. Appellee brought suit in 1974, some six months after an eye ailment was diagnosed as steroid induced glaucoma. Believing the disease to have been caused by a prescription drug she had used for three years, appellee brought the suit against two doctors, a pharmacy and a pharmacist. After conducting discovery, the latter two defendants impleaded appellant and another pharmacy as third-party defendants. Prior to the dismissal of appellee's complaint against the first pharmacy and pharmacist (which dismissal removed the third-party complaint), appellee applied to the court for permission to add appellant as a defendant. The court granted the motion subject to objection. Objection was timely filed by appellant, alleging that the action was barred against it by the statute of limitations. Appellant last filed appellee's prescription in 1971; suit was filed in 1974; and appellant was added as a defendant in July 1975. Appellant's objections were overruled by an order dated March 2, 1977. This appeal is from that order. We *161 affirm.
1. Although appellant offers several bases for a reversal, we need address only one issue: whether the doctrine of continuing tort applies to this case so as to toll the statute of limitations. The period of limitation in this type of action is provided by Code Ann. § 3-1004: "Actions for injuries to the person shall be brought within two years after the right of action accrues..." When, then, did appellee's right of action accrue? Appellant insists that the right of action accrued when appellant did the last act complained of, i.e., selling the medication to appellee in February 1971. By appellant's analysis it was too late after February 1973 to bring suit against it. Appellee insists, with equal vigor, that the doctrine of continuing tort tolled the statute of limitations until October 1973, when appellee discovered the condition of her eyes and the purported cause of that condition.
In Parker v. Vaughn, 124 Ga. App. 300 (183 SE2d 605), this court introduced into Georgia law the doctrine of continuing tort. Restricting the rule to cases in which a surgeon negligently leaves a foreign object in the body of his patient, we held that "... the statute can only begin to run from the time the patient has knowledge, or through the exercise of ordinary care could have learned, of the existence of the continuing tort." Id. p. 302. In Everhart v. Rich's, Inc., 229 Ga. 798 (194 SE2d 425), our Supreme Court expanded the doctrine to cover situations "... where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time." Id. p. 802. The doctrine was again articulated in Forgay v. Tucker, 128 Ga. App. 497 (197 SE2d 492): "[W]here a time interval elapses between the commission of the act and the infliction of injury which first puts the recipient on notice the latter date will mark the time from which the statute of limitation runs... [W]hen the injury resulting from a tortious act is not immediately apparent the statute of limitation is tolled so long as the victim could not in the exercise of ordinary care have learned of it..." Id. pp. 499,500. If the act complained of here constituted a continuous tort and appellee could not have learned of it in the exercise of ordinary care until the time she actually learned of it, the addition of appellant as a party *162 defendant was proper.
2. We find no difficulty in holding this case to be within the doctrine of continuing tort. Appellee used the medication for over three years. The drug is a steroid and she was diagnosed as having steroid-induced glaucoma. The time interval between the first filling of appellee's prescription by appellant and the discovery of glaucoma places this case squarely within the classification of cases set forth above. The remaining question, then, is whether appellee could have known sooner the nature of her ailment.
3. Appellant contends that appellee knew or should have known of her injury prior to July 1973 (two years before the addition of appellant as a defendant). In support of that contention, it is pointed out that appellee went to an opthalmologist (other than the one who prescribed the drug) in January of 1972 because she was having continued eye trouble and that her last prescription for the drug was filled in April 1973 (by a pharmacy other than appellant). This conduct, appellant asserts, shows appellee's awareness of injury to her eyes and her recognition that the medication was causally connected with the injury. Appellee relies on the same events and behavior to show that she exercised ordinary care and still couldn't discover the source of her problems until October 1973. Her uncontradicted testimony is that she went to the second opthalmologist because of visual difficulties. His examination, she claims, indicated ocular problems correctible by a change in corrective lenses. He never told her to discontinue her use of the medication. She relied on his advice, but her eyes did not improve, even after she ceased to use the medication. It was not until a thorough examination by another doctor revealed no other physiological reasons for her trouble that a third eye doctor was called in. He diagnosed steroid-induced glaucoma. His examination took place in October 1973, less than two years before appellee amended her complaint to add appellant as a defendant.
The situation in this case is directly analogous to those involving the tolling of the statute of limitation because of fraud. In both instances, the running of the statute is delayed until the discovery of the injury, if the *163 delay in discovery is not occasioned by the failure of the plaintiff to exercise ordinary care (continuing tort) or reasonable diligence (fraud). Compare Parker v. Vaughn, supra, with Breedlove v. Aiken, 85 Ga. App. 719, 721 (70 SE2d 85). Therefore, the holding in Brown v. Brown, 209 Ga. 620 (7) (75 SE2d 13), a case involving fraud, is appropriate to this case: "If the sole question is one as to the length of time which has elapsed between the accrual of the right and the institution of the action, the question as to whether the action is barred would be one of law; but where, as in this case, there are facts involving fraud and excuses for delay in discovering the fraud, the question becomes one of mixed law and fact, and is a proper question for determination by a jury under proper instructions from the court. [Cits.]" Just so, the issue of appellee's exercise of ordinary care in discovering her injury must be resolved by a jury. "It is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one's protection, ordinarily are to be decided by a jury..." DeGolian v. Faulkner, 74 Ga. App. 866, 869 (41 SE2d 661). The trial court's order overruling appellant's objections to its addition as a party defendant was proper.
4. Because we have affirmed the trial court's order on the basis of the doctrine of continuing tort, it is not necessary to address appellant's other arguments which are based on the assumption that the trial court relied on other theories to permit the amendment to appellee's complaint.
Judgment affirmed. Quillian, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355117/ | 270 S.C. 58 (1978)
240 S.E.2d 810
Margaret ROBERTSON (Brissey), Respondent,
v.
BRISSEY'S GARAGE, INC., and United States Fidelity and Guaranty Company, Appellants.
20582
Supreme Court of South Carolina.
January 17, 1978.
*59 Robert S. Galloway, Jr., of Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for Appellants.
*60 C. Ben Bowen, of Abrams, Bowen, Robertson & Tapp, Greenville, for Respondent.
January 17, 1978.
RHODES, Justice:
In this appeal from an award of Workmen's Compensation death benefits the employer and insurance carrier assert *61 that the decedent's widow is barred by S.C. Code § 42-15-40 (1976) from claiming benefits because of failure to file her claim within one year. The Industrial Commission, affirmed by the Circuit Court, held that the appellants were estopped to assert the one year limitation period provided by § 42-15-40. We affirm.
I.M. Brissey, claimant-respondent's husband, was president and part owner of Brissey's Garage, a Corporation. On May 9, 1973, while working at the garage, he was assaulted by several men attempting to force the release of a car that had been impounded at the garage by the police. As a result of the altercation, Brissey suffered a fatal heart attack.
After investigation, the carrier concluded that since Brissey was the president and part owner of the garage, he was not an employee and the injury was therefore not compensable. In January of 1974, an adjuster for the carrier visited the claimant, explained in detail the company's position as above-stated, and informed her the carrier did not consider the death compensable. On January 4th, 1974, by letter, the adjuster informed the Industrial Commission that it was the carrier's position that Brissey's death was not compensable. He added that "I have explained our position to Mrs. Brissey and told her that she would have until May 9, 1974 to file with the Commission in the event she would choose to contest our decision. She seemed to understand fully our position and seemed willing to accept it as such. By way of copy of this letter to Mrs. Brissey, I am informing her of the one year time limit and to contact you if she wishes to pursue this further."
On January 10th, 1974, after receipt of the adjuster's letter, the Industrial Commission sent a form letter to the claimant stating that it had been informed of the carrier's denial of liability and, further, that "we are enclosing a copy of our Bulletin which explains the facts and circumstances under which compensation is payable. Please read this carefully and if you decide you are entitled to compensation, it is *62 your privilege to write the Industrial Commission asking for a form, (sic) Request that a Claim be Assigned for a Hearing."
After the period for filing a claim had expired, the widow having filed no claim, the matter was routinely set for a hearing by the Industrial Commission in accord with its established practice of conducting hearings in all death cases. The parties appeared before a single commissioner on February 25, 1976, at which time the respondent made her initial claim for benefits. The Hearing Commissioner found that inefficiency on the part of the Industrial Commission was partially responsible for the extreme delay in scheduling the matter for hearing. Among other defenses, the carrier asserted that the respondent was barred from claiming benefits by reason of failure to make a timely claim in accordance with S.C. Code § 42-15-40 (1976).[1] That section provides, in part, that "[t]he right to compensation ... shall be forever barred unless a claim is filed with the Commission within two years after the accident and, if death resulted from the accident, unless a claim be filed with the Commission within one year thereafter."
In the proceedings that followed, the claimant testified that she did not file a claim within the statutory period because she believed and relied upon the carrier's adjuster who told her that he knew the Workmen's Compensation Act and that her husband's death was not compensable in that he was not an employee of Brissey's Garage. Based upon the evidence, the Hearing Commissioner found that, although there was no intent on the part of the carrier's adjuster to mislead or deceive the claimant, his conduct did, in fact, have that effect. He further found that since reliance upon the adjuster's statements led the claimant to refrain from filing a timely claim or seeking counsel, the carrier was estopped to raise the one year limitation period as a defense. *63 The Hearing Commissioner was affirmed by the Full Commission and by the Circuit Court.
This Court has held on numerous occasions that the employer and carrier have waived, or have been estopped by their conduct to assert, the statute of limitations. Lovell v. Timbes, Inc., 263 S.C. 384, 210 S.E. (2d) 610 (1972); Altman v. Williams Furniture Co., 250 S.C. 98, 156 S.E. (2d) 433 (1967); Clements v. Greenville County, 246 S.C. 20, 142 S.E. (2d) 212 (1965); Skipper v. Marlowe Mfg. Co., 242 S.C. 486, 131 S.E. (2d) 524 (1963); Poole v. E.I. DuPont De Nemours & Co., 227 S.C. 232, 87 S.E. (2d) 640 (1955); Young v. Sonoco Products Co., 210 S.C. 146, 41 S.E. (2d) 860 (1947); and Lowther v. Standard Oil Co., 206 S.C. 286, 33 S.E. (2d) 889 (1945).
In Young v. Sonoco Products Co., supra, this Court stated:
The conduct of defendant and its insurance carrier may be such as to estop them from presenting the statutory limitation as a defense in bar of the claim for compensation, if the effect of such conduct was to mislead or deceive claimant, whether intentionally or not, and induce him to withhold or postpone filing his claim petition until more than a year had elapsed from the occurrence of the accident. 41 S.E. (2d) at 864 (quoting other authority).
In the Young case, the claimant did not file a timely claim with the Commission although she had been informed three months before the period of limitation had run that the carrier was denying liability. The claimant testified that the reason she had not filed a timely claim was due to advice from a Mr. DuBose, an employee of Sonoco who handled all workmen's compensation claims for the company, that although she had a right to contest the carrier's denial of liability she should wait to hear from the Commission before proceeding further. In affirming the Commission's holding that the employer and carrier were estopped to invoke the limitation period for filing claims, the Court stated: "There *64 was no obligation resting upon Sonoco to provide assistance to employees in filing claims but having done so, the employer is not in a position to complain of any action taken or omitted as a reasonable result of the advice thus given." 41 S.E. (2d) at 864.
In the present case, the appellants were under no obligation to consult with the respondent or to explain the basis for their denial of liability. However, having undertaken such a duty, the appellants are not in a position to invoke the respondent's failure to act if such failure was a reasonable result of appellants' gratuitous acts.
Although the carrier acted in good faith, the fact is inescapable that it occupied a position far superior to that of the claimant. The claimant was ignorant of the Workmen's Compensation Act and of business practices generally. This factor may be taken into account in determining whether the claimant was misled. Young, supra. We also feel that it may properly be considered in determining whether the claimant's reliance was justified. Although claimant was advised that she could file a claim, it was reasonable under the circumstances for her to feel that such would be a futile gesture in view of the positive assertion by the carrier of the reasons why the death was not compensable. Her reliance on the adjuster is indicated by the following from the January 4, 1974 letter of the adjuster to the Commission: "She seemed to understand fully our position and accept it as such." It is clear to us that the words of the adjuster were being accepted by the claimant without question, which is not strange when considered in the light of the disparity between the knowledge and experience of the parties. We feel that the failure of the claimant to file a claim was a reasonable reaction to the initiative taken by the carrier.
The question here is whether there is any competent evidence to sustain the finding of the Industrial Commission that the appellants were estopped to assert the failure of claimant to file her claim within one year after the death of *65 her husband; for, under well settled principles, if there was any evidence to support the factual finding of the Commission, such is binding on this Court and the Circuit Court on appeal. Skipper v. Marlowe Mfg. Co., 242 S.C. 486, 131 S.E. (2d) 524 (1963). It is our opinion that there was competent evidence to support the Commission's finding and we affirm.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.
NOTES
[1] The other defenses raised by the appellants, including the original position that Brissey was not an employee of Brissey's Garage, have been abandoned on this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355124/ | 240 S.E.2d 475 (1978)
35 N.C. App. 53
STATE of North Carolina
v.
Obie CARRINGTON, Jr.
No. 7715SC575.
Court of Appeals of North Carolina.
January 17, 1978.
*477 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Thomas F. Moffitt and Asst. Atty. Sandra M. King, Raleigh, for the State.
James V. Rowan and Anthony J. Bocchino, Durham, for defendant-appellant.
ARNOLD, Judge.
I.
Defendant moved to dismiss the indictments charging him with being an accessory after the fact to Arthur Parrish who had earlier been acquitted. The trial court denied the motion, but it excised mention of Parrish from the indictments which also charged defendant with being an accessory after the fact to an unknown black male. Defendant now argues that the action of the trial court denied him his due process rights under both the United States and North Carolina Constitutions. We cannot agree.
*478 The United States Supreme Court has held that an indictment is sufficient if it, "first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590, 620 (1974). In applying these two tests to the indictments we find that the trial court did not err in denying defendant's motion to dismiss. Portions of the original indictment charging defendant with being an accessory after the fact of first degree murder demonstrate the clarity of the charge against defendant and allow defendant to plead any conviction in bar of future prosecutions:
"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 19th day of February, 1976, in Durham County Obie Carrington, Jr. unlawfully and wilfully did feloniously give aid and assistance to (Arthur Junior Parrish and) one (other) black male, name unknown, who had unlawfully, wilfully and feloniously killed and murdered Otis Jackson Rigsbee, Jr., during an Armed Robbery of the said Otis Jackson Rigsbee, Jr., at Rigsbee's Liberty Market, 349 West Main St., Durham, N.C. on the 18th day of February, 1975. At the time of the giving of aid and assistance, the defendant knew that (Arthur Junior Parrish and) the aforesaid (other) black male, name unknown, had committed the felony of Murder, by killing Otis Jackson Rigsbee, Jr., while robbing him with dangerous weapons."
The indictment charging defendant with being an accessory after the fact of armed robbery is equally clear.
Defendant argues further that the trial court erred in striking reference to Arthur Parrish. Defendant submits that, under United States v. Dawson, 516 F.2d 796 (9th Cir.), cert. denied sub nom Dawson v. United States, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975), the focal point in questioning the permissibility of a change made in the indictment appears to be whether the change involves a broadening or a narrowing of the charge. However, defendant incorrectly argues that the omission of any reference to Arthur Parrish expands the charge. The State was still required to prove all the elements of accessory after the fact; given the rather elusive evidence available concerning the unknown black male, the State's task was considerably greater when it was required to show that defendant aided and assisted that unknown man.
This court is cognizant of G.S. 15A-923(e), which states that no bill of indictment may be amended. Nothing in that statute or in North Carolina case law defines the term "amendment." Since we must interpret statutes in a manner which would avoid illogical consequences, see, e. g. Helms. v. Powell, 32 N.C.App. 266, 231 S.E.2d 912 (1977), we define "amendment" to be any change in the indictment which would substantially alter the charge set forth in the indictment. No such change was made in the present case.
II.
An assignment of error closely related to the previous one is the alleged error of the trial court in admitting evidence concerning Arthur Parrish, in referring to Arthur Parrish during jury instructions, and in instructing the jury that the defendant had been indicted and charged with aiding, counselling and procuring Parrish and another to kill and rob Jackson Rigsbee, Jr. Evidence about Arthur Parrish was an inevitable part of the trial, and we can find no error in its admission. In its instructions to the jury, the trial court, by necessity, referred to Arthur Parrish.
In reviewing the jury instructions we find error only in the court's reference to defendant's indictment as an accessory before the fact. This error, however, was not prejudicial to defendant inasmuch as he was acquitted of the charges relating to accessory before the fact. Furthermore, in the court's instructions, the jury was repeatedly charged that in order to find defendant guilty of accessory after the fact of murder and of robbery it had to find beyond a reasonable doubt that an unknown *479 black male committed these crimes. Viewing the instructions as a whole they contain no error prejudicial to defendant.
III.
The final assignment of error which we consider is defendant's argument that the trial court erred when, in responding to the jury's request, it reinstructed the jury concerning the charges of accessory after the fact of murder and armed robbery. While the trial court restated the law very briefly, we can find, in construing the full context of the charge, State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied sub nom Sanders v. North Carolina, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed.2d 102 (1976), no error prejudicial to defendant. Defendant's argument that the court erred in failing to instruct on "specific intent" to aid the principal is not supported by North Carolina law. See G.S. 14-7 and cases annotated thereunder.
We have reviewed defendant's other contentions but find in them
No error.
MORRIS and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355147/ | 144 Cal.App.2d 673 (1956)
ARTHUR E. PRINCE, Respondent,
v.
IRENE PRINCE VARONA, Appellant.
Civ. No. 5427.
California Court of Appeals. Fourth Dist.
Sept. 26, 1956.
Herbert W. Simmons, Jr., for Appellant.
George R. Kirk for Respondent.
BURCH, J. pro tem. [fn. *]
Defendant appeals from a decree quieting title in plaintiff to certain real property in the city of El Centro, County of Imperial, State of California, described as follows:
"The South 60 feet of the West 160 feet of Lot 10, Block 6, Second Addition to the City of El Centro, excepting therefrom the South 10 feet of the West 20 feet thereof?"
By a cross-complaint defendant sought a decree of partition, an accounting and for general relief.
The record indicates that the parties were married in 1924 and that a decree of divorce was granted defendant September 6, 1944, in Las Vegas, Nevada. On that date the parties owned the described property as tenants in common. The plaintiff has been in possession since the parties were divorced. At the time of the divorce there was no property settlement agreement or division of property in the decree. The parties also had owned real property in Pasadena, California, which was under contract of sale for $2,400 upon which there was an encumbrance of $660. The purchaser had paid down $500. The El Centro real property they valued at $2,300. There was a Chevrolet automobile, 1940 model, valued at $800. There was household furniture valued roughly at $800.
After the divorce the parties met in Pasadena and orally agreed to divide the property as follows: To the wife the contract of sale of the Pasadena property and the furniture, the wife to have the $500 down payment on the contract of sale and the husband to pay off an existing encumbrance of $660. The husband to have the El Centro real property and the automobile. The husband fully performed his part of this agreement. The wife refused, upon request, to deed her interest in the El Centro property to plaintiff.
There is some conflict upon the question of the oral agreement dividing the property and upon the values of the *675 several pieces of property set off to each. However, the court found that the division of community and separate property in the oral agreement was fair and executed except that defendant refused to deed the legal title of the El Centro property to plaintiff. A decree was entered quieting plaintiff's title to the El Centro real estate against any and all claims of the defendant.
The sufficiency of the evidence to support the conclusion reached by the trial court is under attack. "In reviewing the evidence ... all conflicts must be resolved in favor of the respondent. ... When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." (Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429 [45 P.2d 183].) Under this rule it was for the trier of fact to determine whether or not a contract was proven from the facts and circumstances in evidence, "including of course, the conversations between the parties." (Treadwell v. Nickel, 194 Cal. 243, 261, 262 [228 P. 25].) In this case we have an executed oral agreement which transmuted the separate property of the wife to the husband upon a full and fair consideration. In Woods v. Security-First Nat. Bank, 46 Cal.2d 697 [299 P.2d 657], an antenuptial oral agreement to transmute the wife's separate property into community property became executed by the subsequent acts and conduct in confirmation of the agreement. The agreement in question there was like the agreement here controlled by the statute of frauds and was required to be in writing. (Civ. Code, 1624, subds. 3, 4, 6; Civ. Code, 1091.) As in the instant case, no transfers or instruments of conveyance were executed, but unlike the instant case, there was no delivery of possession. The court held that because the agreement was executed, the prohibitions of the above statutes did not control. "This is a clear case," says the court, "of an executed agreement which transmuted the property." (P. 707.) In the Woods case, supra, it was held that the mutual consent of the spouses furnished the consideration. In the present case the marriage was terminated at the time of the agreement and admittedly, the practice of informality in property dealings between spouses is not available to plaintiff. Nevertheless, the facts and circumstances bring this case within the rule of an executed oral agreement accompanied by delivery of possession which continued uninterrupted and uncontested for a period of some nine years. The agreement was fully supported *676 by consideration and all that remained to be done was to execute a deed to clear the record title.
The case of Husheon v. Kelley, 162 Cal. 656 at 662 [124 P. 231], cited by plaintiff, supports the judgment. In that case there was an oral agreement transferring real property and the court there said:
"But we think the findings, if construed, as they should be, in support of the judgment, do not set forth a case of an executory contract which has to be enforced, but rather one of an oral present transfer of a life interest, in consideration of certain promises upon the part of the grantee. ..."
"Where the conveyance is oral, instead of written, the case is not different, if there has been such part performance as to take the case out of the operation of section 1971 of the Code of Civil Procedure. There can be no doubt that the taking of possession by Kelley and the performance by him and his successors of the obligations of payment and improvement of the land, were sufficient to overcome the want of a written transfer. ..."
It is said in 23 California Jurisprudence 2d, Frauds, Statute of, page 399, section 129: "An oral contract which has been fully executed is not affected by the provisions of the statute of frauds. ... The rule applies even when full performance has been rendered by only one of the parties." (See Flint v. Giguiere, 50 Cal.App. 314, 320 [195 P. 85]; Nicolds v. Storch, 67 Cal.App.2d 8, 17, 18 [153 P.2d 561], and cases there cited.) [1] The court found the contract on sufficient evidence and that plaintiff fully performed his obligation thereon. It would, under the facts and circumstances of the case, be inequitable to allow the defendant, fully compensated under a fair agreement, to set up the bar of the statute of frauds.
The judgment is affirmed.
Griffin, Acting P. J., and Mussell, J., concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355165/ | 158 S.W.3d 252 (2005)
STATE of Missouri, Respondent,
v.
Darius GUYTON, Appellant.
No. ED 83975.
Missouri Court of Appeals, Eastern District, Division Three.
February 1, 2005.
Motion for Rehearing and/or Transfer Denied March 23, 2005.
*253 Deborah Daniels, Dora Fichter (co-counsel), Jefferson City, MO, for respondent.
Gwenda Robinson, St. Louis, MO, for appellant.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
*254 OPINION
GLENN A. NORTON, Judge.
Darius Guyton appeals the judgment entered on his conviction for attempted escape from custody. We affirm.
I. BACKGROUND
Guyton was arrested for murder and taken into police custody. An officer handcuffed Guyton to a table in an interview room at the police station. One of the cuffs was attached to an eyelet bolted onto the table, and the other was secured on Guyton's wrist. The officer left Guyton alone in the room on two different occasions, each time for about 15 minutes. After the officer came back in the room the second time, he noticed that Guyton had been tampering with the handcuffs, trying to get them off. At trial, the officer demonstrated that, with no instruments but his free hand, Guyton wedged a part of the cuff attached to the table into the eyelet and broke off two pieces. "If he broke off one more piece, he'd have been free." Guyton was found guilty of murder in the second degree, armed criminal action and attempt to escape from custody. He appeals only the judgment and sentence relating to the escape count.
II. DISCUSSION
A. Instructional Error
A verdict-directing instruction must contain each element of the offense charged and must require the jury to find every fact necessary to constitute the essential elements of the offense. State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995). The court in this case omitted the definition of the object crime in its verdict director for attempt to escape from custody, as required by the relevant pattern instruction for attempt. See Missouri Approved Instruction-Criminal 3d 304.06, Notes on Use 4 ("If the attempt crime is submitted but the object crime is not submitted, the optional paragraph defining the object crime must be given, whether the definition is requested or not.") (9-1-99). Failure to give an applicable pattern instruction in accordance with the notes on use is error, but its prejudicial impact is to be judicially determined. State v. Richardson, 923 S.W.2d 301, 318 (Mo. banc 1996). In this case, because Guyton failed to properly preserve this error for appeal, we will only review for plain error. Instructional error seldom constitutes plain error. State v. Thomas, 75 S.W.3d 788, 791 (Mo.App. E.D.2002). Guyton must demonstrate that, by giving this instruction, the trial court "so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury's verdict." State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003).
Guyton argues that without a definition of escape from custody the instruction allowed the jury to convict him on fewer than the essential elements because it failed to include the requisite mental state. Because the statute defining this crime does not include a mental state,[1] the culpable mental state for escape from custody or attempted escape from custody is established if the defendant acted "purposely or knowingly." Section 562.021.3; see also MAI-CR3d 329.72 (pattern instruction for attempted escape from custody requires jury find defendant committed certain acts and "thereby knowingly" attempted *255 to escape and "did so (knowingly) (for the purpose of escaping).") (10-1-98); see also MAI-CR3d 329.72, Notes on Use 5.
The instruction given in this case required that the jury find Guyton guilty if the evidence showed that he, "while handcuffed to a table after arrest for murder, damaged the handcuffs," that this conduct was a substantial step toward committing the offense of escape from custody and that he "engaged in such conduct for the purpose of committing such escape from custody." (emphasis added). Although this instruction did not require a finding that Guyton acted knowingly, the jury was instructed that it had to find he acted purposely. This is sufficient to establish that the defendant acted knowingly: "[w]hen acting knowingly suffices to establish a culpable mental state, it is also established if a person acts purposely." Section 562.021.4; see also State v. Carpenter, 57 S.W.3d 405, 410 (Mo.App. S.D.2001) (purposely is higher mental element than lower mental element of knowingly). Thus, the instruction did contain all the essential elements, including the requisite mental state.
This case is unlike the cases relied on by Guyton, in each of which an essential element was missing from the instruction, lowering the State's burden of proof. In Doolittle, the court's instruction on attempted first-degree robbery failed to define the object crime, instructing the jury only that it must find that the defendant had pressed "something" into a store clerk's back while threatening to kill him and that this was a substantial step toward robbery done with the purpose of committing robbery. 896 S.W.2d at 28. The jury was not instructed to find that the defendant had used or threatened to use a dangerous instrument, and the instruction did not include a definition of a "dangerous instrument," as required by the statute defining robbery and the applicable MAI. Id. at 29 (citing section 569.020 RSMo 1986 and MAI-CR3d 323.02). This constituted plain error because the jury could have found the defendant guilty without finding that he used a dangerous instrument. Id. at 30. In State v. Farris, the failure to define possession in the verdict director for attempt to manufacture methamphetamine, where possession was an essential element of the crime, was plain error. 125 S.W.3d 382, 392 (Mo.App. W.D.2004).
Here, however, the failure to define the object crime was harmless because the instruction otherwise contained all the essential elements, including that Guyton acted with the requisite mental state that is, for the purpose of attempting to escape. The jury could not logically find that Guyton was purposely trying to escape without concluding that he knowingly attempted to escape by damaging the handcuffs. See State v. Bozarth, 51 S.W.3d 179, 182 (Mo.App. W.D.2001) (failure to define "knowingly" in instruction on attempted escape from confinement[2] did not lower State's burden of proof because instruction also required finding that defendant acted with purpose of escaping). Thus, the instruction *256 contained the essential elements of the crime and did not lower the State's burden of proof.
Because the instruction did not misdirect or fail to instruct the jury such that the jury's verdict was affected, we find no plain error. Point denied.
B. Sentencing Error
After Guyton committed this crime but before he was sentenced, the maximum sentence for class D felonies, such as this attempt to escape from custody, was reduced from five to four years. See section 558.011.1(4) RSMo Supp.2004; see also section 575.200.2(2) (making crime a class D felony when person attempting to escape is under arrest for a felony). Guyton contends that, under section 1.160(2),[3] he was entitled to the benefit of this change in the law. But, under section 1.160(2), "a defendant will be sentenced according to the law in effect at the time the offense was committed unless a lesser punishment is required by a change in the law creating the offense itself." State v. Johnson, 150 S.W.3d 132, 138 (Mo.App. E.D.2004). Here, the change was not to the statute creating the crime of attempted escape from custody, section 575.200.1, but to the general sentencing statute. There was no error, therefore, plain or otherwise, in sentencing Guyton according to the range of punishment in effect at the time his offense. See Prapotnik v. Crowe, 55 S.W.3d 914, 918 (Mo.App. W.D.2001) ("if the range of sentence for [a certain] class [of] felonies is reduced by the legislature in [section] 558.011 after the date an individual commits [a felony of that class], the offender is still subject to the higher range of punishment").
Point denied.
III. CONCLUSION
The judgment is affirmed.
CLIFFORD H. AHRENS, J. and NANNETTE A. BAKER, J. concurring.
NOTES
[1] "A person commits the crime of escape from custody or attempted escape from custody if, while being held in custody after arrest for any crime, he escapes or attempts to escape from custody." Section 575.200.1 RSMo 2000. All statutory references are to RSMo 2000, unless otherwise noted.
[2] The crime of attempted escape from confinement has substantially the same elements as the crime of attempted escape from custody:
A person commits the crime of escape or attempted escape from confinement if, while being held in confinement after arrest for any crime, while serving a sentence after conviction for any crime, or while at an institutional treatment center operated by the department of corrections as a condition of probation or parole, he escapes or attempts to escape from confinement.
575.210. 1. There being no mental state in this statute, it too requires knowing or purposeful conduct. See section 562.021.4; see also MAI CR3d 329.74.
[3] "No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except:
(1) That all such proceedings shall be conducted according to existing procedural laws; and
(2) That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law."
Section 1.160. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644153/ | 4 So.3d 1224 (2009)
E.W.
v.
C.P.K., JR.
No. 1D08-4637.
District Court of Appeal Florida, First District.
March 10, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1916283/ | 75 Md. App. 662 (1988)
542 A.2d 1288
RALPH J. CANCELOSE
v.
CITY OF GREENBELT, MARYLAND.
No. 266, September Term, 1988.
Court of Special Appeals of Maryland.
July 7, 1988.
Leonard L. Lucchi (Wolman & Lucchi on the brief), Upper Marlboro, for appellant.
Jacqueline A. Brackett (William C. Brennan, Jr. and Knight, Manzi, Brennan, Ostrom & Ham, P.A. on the brief), Upper Marlboro, for appellee.
Argued Before GILBERT, C.J., and GARRITY and ROSALYN B. BELL, JJ.
ROSALYN B. BELL, Judge.
Ralph J. Cancelose, a City of Greenbelt police officer, filed a complaint against the City to show cause why he should not receive a hearing under the Law Enforcement Officers' Bill of Rights (LEOBR), Md. Code Ann. Art. 27, §§ 727-734D (1957, 1987 Repl.Vol.). This action followed notice to him by the City of his termination as a police officer. The trial judge of the Circuit Court for Prince George's County dismissed Cancelose's complaint. He, in turn, has appealed, contending:
He is entitled to a hearing under the LEOBR prior to termination by the City; and
He is entitled to a hearing under the LEOBR prior to suspension by the City.
Cancelose was appointed a police officer for the City of Greenbelt in 1967. In August of 1987, Cancelose was placed on a monthly evaluation procedure for unsatisfactory work performance. Each month thereafter, he met with his supervising sergeant and his patrol division commander and received oral evaluations which were later reduced to writing. As a result of these oral and written work performance evaluations, the City's Chief of Police suspended Cancelose with pay in February, 1988. No hearing was held on this suspension. The Chief of Police then recommended to the City Manager that Cancelose be dismissed from the force, writing in part:
"Officer Cancelose has not achieved or maintained an acceptable level of competence in spite of instruction, encouragement, and direction of his supervisors. During the rating period, a slight improvement was made, however, the evaluations at the culmination were even less acceptable than the initial one that induced the program.
"Officer Cancelose has been given every opportunity to conform to performance standards expected of each member of department and has failed to do so. He shows no initiative whatsoever to complete the most routine and mundane tasks of a patrol officer. His failure to do so after supervisory intervention is paramount to insubordination and neglect of duty. He is universally distrusted by the rank and file, and as such, is a profound determent [sic] to the moral [sic] and safety of fellow officers."
The Chief of Police then specified the various aspects of Cancelose's incompetence, which included, inter alia, refusing to improve his work, negligence in performing his duties, and disrupting normal police operations.[1]
As a result of the recommendation, the City Manager determined that Cancelose's employment be terminated, effective March 26, 1988. As permitted by the City of Greenbelt Code, § 13-176, Cancelose requested a hearing before the Employee Relations Board of the City. A hearing was scheduled but postponed at Cancelose's request. It has not yet been rescheduled.[2]
Cancelose filed a "Complaint for Show Cause Order" in the Circuit Court for Prince George's County under § 734 of the LEOBR. The two-count complaint alleged that Cancelose had been denied his rights by the City under the LEOBR.
The court issued an order requiring the City to show cause why the rights under the LEOBR should not be afforded and set the matter in for hearing. The City moved to dismiss on the grounds of improper service and failure to state a claim upon which relief can be granted. The court denied the motion on the first ground but granted the motion as to the second ground, rendering the following oral opinion:
"THE COURT: This is an action by the plaintiff in this case to relief under the Law Enforcement Officers' Bill of Rights, which is Article 27, Section 727 of the Annotated Code of Maryland.
"I find the following facts: that this action was filed and seeks specific relief by the defendant in this case, the City of Greenbelt, Maryland. I further find that htere [sic] is pending at this time relief extended to the plaintiff in this case under the City Charter of the City of Greenbelt in regards to his termination.
"After this suit was filed and at the hearing of this case a motion to dismiss was filed in this case, which I heard, and based on the facts and circumstances of this case and th[e] law, as I understand it to be, the motion to dismiss is granted. Dismiss the case."
We will affirm.
Termination
The LEOBR was enacted by the Legislature in 1974. 1974 Md. Laws, ch. 722. The purpose behind the LEOBR is to guarantee law enforcement officers certain procedural safeguards during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal. Abbott v. Administrative Hearing Board, Prince George's County, 33 Md. App. 681, 682, 366 A.2d 756 (1976), cert. denied, 280 Md. 727 (1977). Since the nature of the duties of police officers is different from that of other public employees, the establishment of different procedures covering any potential disciplinary action is justified. Abbott, 33 Md. App. at 688, 366 A.2d 756. Thus, specific standards are set forth as to how a LEOBR investigation is to be conducted, including the place, time and method of any interrogation of the officer, and requires that the officer receive written notice of the nature of the investigation prior to any interrogation and that a written record be kept of the interrogation. § 728(b).
Under the LEOBR, "[i]f the investigation or interrogation of a law enforcement officer results in the recommendation of some action, such as demotion, dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure ... before taking that action, the law enforcement agency shall give notice to the law enforcement officer that he is entitled to a hearing on the issues by a hearing board." § 730(a) (emphasis added).
Appellant's position is that he is entitled to the hearing provided for pursuant to § 730(a) of the LEOBR, as his dismissal was a punitive measure. Appellant, however, overlooks another prerequisite necessary to invoke the right to a hearing pursuant to § 730(a) of the LEOBR: appellant's dismissal must have resulted from an "investigation or interrogation." Leibe v. Police Dep't of Annapolis, 57 Md. App. 317, 322-23, 469 A.2d 1287 (1984); Montgomery County Dep't of Police v. Lumpkin, 51 Md. App. 557, 566, 444 A.2d 469, cert. denied, 294 Md. 142 (1982).
In Leibe, a case similar to the case sub judice, a law enforcement officer filed suit to secure his rights to a hearing and other procedural safeguards provided for under the LEOBR after his promotion had been rescinded. The officer's performance had previously been evaluated and he had received, inter alia, unsatisfactory ratings for sick leave and below average ratings for initiative, reliability and attitude. The Chief of Police informed the officer that his promotion had been rescinded based primarily upon his excessive use of sick leave during the previous six months. We affirmed the trial court's determination that the officer was not entitled to the protections of the LEOBR, stating "that the routine managerial procedure employed here is not an investigation, and, thus, it does not fall within the perimeters set by the LEOBR." Leibe, 57 Md. App. at 322, 469 A.2d 1287.
Chief Judge Gilbert, speaking for this Court, considered for the first time what actions by police agencies constituted "investigation" as a prerequisite to the LEOBR protections:
"In considering the ordinary and natural meaning of investigation, we find that Webster's Dictionary Third Ed. (1976) defines the word as `a detailed examination; a searching inquiry; to observe or study closely.' While we will not here attempt to delineate precisely what actions will involve detailed examinations or searching inquiries, it is clear that the tracking of [the officer's] use of sick leave was not an investigation.
"The cases demonstrate that something more than counseling sessions, but perhaps less than formal complaints leading to inquiry, is necessary to trigger the LEOBR, see Chief, Baltimore County Police Dept. v. Marchsteiner, 55 Md. App. 108, 461 A.2d 28 (1983). Nevertheless, examination of sick leave records and even comparing them with another employee's is not an investigation as that word is normally and ordinarily used."
Leibe, 57 Md. App. at 323, 469 A.2d 1287.
In the case sub judice, appellant's dismissal from appellee's police department occurred because he regularly received poor performance evaluations over a period of approximately seven months. Since appellant's work performance and conduct were considered unsatisfactory, an administrative decision to dismiss appellant was made at the recommendation of appellee's Chief of Police. At no time was any investigation or interrogation commenced against appellant. Instead, his general work performance was evaluated monthly, using departmental competency standards which are applied consistently to all police officers in evaluating overall job performance. We hold that these evaluations were not investigations as that word is normally and ordinarily used. Appellant's termination as a Greenbelt City Police Officer was based upon his unsatisfactory work performance. Hence, the LEOBR procedural safeguards are not applicable in the case sub judice.
Suspension
Section 734A(2) of the LEOBR applies to law enforcement officers who are suspended with pay. It requires that such a suspension may only be imposed when it appears to be in the best interests of the public and the law enforcement agency. The subsection also requires that an officer suspended with pay be afforded a prompt hearing.
In February, 1988, appellant was suspended with pay by appellee's Chief of Police. He remained in that status until March 26, 1988, when his employment was terminated. The suspension notice stated as follows:
"It has been determined by the City Manager, the City Solicitor and [the City's Chief of Police] that for the good of all parties concerned, you are suspended with pay until further notice. Such suspension shall remain in effect until legal review is made pertaining to your unsatisfactory work performance. Upon completion of legal review, you will be advised of the course of action the City will be taking."
Appellant argues that the notice did not allege that the suspension was "in the best interest of the public and the law enforcement agency," nor was appellant afforded a prompt hearing on the suspension.
While the notice did not specify that the suspension was in the best interest of the public and law enforcement agency, the statement that the action was for the good of all parties concerned implicitly so provides. Furthermore, since appellant was ultimately terminated from his employment based upon unsatisfactory work performance, we hold that the failure to provide a prompt hearing on the issue of his suspension with pay is moot.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Insubordination and detrimental conduct were also alleged, but the underlying factual pattern was that of incompetence.
[2] Cancelose has not pursued this avenue of relief further. Whether he may still do so is not before us. | 01-03-2023 | 10-30-2013 |
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