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https://www.courtlistener.com/api/rest/v3/opinions/1916258/ | 542 A.2d 815 (1988)
William M. DAVIS, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,
Washington Metropolitan Area Transit Authority, Intervenor.
No. 85-1620.
District of Columbia Court of Appeals.
Argued March 1, 1988.
Decided May 19, 1988.
Richard W. Galiher, Jr., Washington, D.C., for petitioner.
Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., entered an appearance, for respondent.
John F. Ward, Washington, D.C., for intervenor.
Before PRYOR, Chief Judge, and NEWMAN and BELSON, Associate Judges.
BELSON, Associate Judge:
Petitioner asserts that he is entitled to additional workers' compensation benefits under the District of Columbia Workers' Compensation Act, D.C.Code §§ 36-301 to -345 (1981 & 1987 Supp.). In a proceeding before a hearing examiner, petitioner, a *816 bus driver, maintained that he injured his back in a work-related fall on January 16, 1984. His employer voluntarily paid him temporary total disability benefits through October 4, 1984. The only substantial issue presented in this appeal is whether the hearing examiner erred in refusing to consider petitioner's entitlement to continue receiving temporary total disability benefits through November 1, 1984, based on back strain allegedly caused by the fall. We conclude that the hearing examiner erred in refusing to consider this issue. Accordingly, we reverse and remand for its consideration.
I.
Petitioner, a bus driver with the Washington Metropolitan Area Transit Authority ("WMATA"), slipped on ice while climbing aboard his bus on January 16, 1984. He sustained a low back injury and was off duty from January 30, 1984, through February 9, 1984. WMATA voluntarily paid petitioner temporary total disability benefits for that period, and again during the period May 4, 1984, through October 4, 1984. On October 4, WMATA terminated benefits.
Petitioner filed the instant claim with the Department of Employment Services ("DOES"), seeking an award of temporary total disability under the District of Columbia Workers' Compensation Act, supra, from October 5, 1984, to the present (i.e., the time of the DOES hearing), and continuing, plus medical expenses, interest, attorneys' fees and costs. After an evidentiary hearing, the hearing examiner recommended that petitioner's claim be denied, and the deputy director adopted the recommended compensation order.
The hearing examiner determined that petitioner sought compensation only on the basis of a fall-produced or fall-aggravated affliction known as stiff-man syndrome[1] and, concluding that petitioner did not have that affliction, denied his claim. Petitioner assigns error to the hearing examiner's decision to frame petitioner's claim as one premised only on stiff-man syndrome.[2] Petitioner contends on appeal that while his claim was premised in part on his having developed stiff-man syndrome *817 as a result of the fall, the claim was premised also on back strain resulting from the fall, and he was entitled to benefits on the latter basis. Therefore, petitioner argues, the hearing examiner erred in "limit[ing] the inquiry to whether the work-related trauma was a precipitating factor of the Stiffman's Syndrome."
The record discloses that at the formal hearing held on April 5, 1985, the hearing examiner framed the inquiry in broad terms, as follows:
Whether an injury occurred on January 16, 1984; whether the injury arose out of and in the course of employment; the nature and extent of the disability and what the applicable compensation rate is in this particular case.
The hearing consisted only of opening statements and testimony by petitioner. Petitioner described the circumstances of his injury and the treatment he had received to date. The parties requested, and the hearing examiner provided, that the record be left open for post-hearing depositions of Dr. Rudiger Kratz, a neurologist; Dr. Michael Dennis, a neurosurgeon; Dr. John Blazina, also a neurologist; and petitioner's wife.
When the hearing came to a close, the hearing examiner asked how the parties wished to handle closing arguments. Intervening employer's attorney responded that
it will be difficult to make a closing statement now. I will be honest with you, I don't know what Dr. Dennis and Dr. Blazina is [sic] going to say in light of the evidence as I have indicated before. . . . I'm just saying that at this point we are in the dark. So I think it is better to get the testimony from Dr. Kratz and the other two medical experts. . . .
The hearing examiner and the parties then agreed to the submission of written closing arguments, and the hearing examiner explained that "I don't expect a full statement of the case. Even a short letter briefly just summarizing will be sufficient." Notably, the record reveals no conditions relating to or limiting the scope of the inquiry.
After the hearing, and in accord with the hearing examiner's instruction, the parties took medical depositions. The deposition of Dr. Dennis is most significant for purposes of this appeal. Dr. Dennis first examined petitioner on February 16, 1984, and concluded, despite the absence of "objective physical findings," that petitioner "had sustained a strain syndrome." After several intervening examinations,[3] Dr. Dennis once again examined petitioner on July 16, 1984, and reported that petitioner "felt he could not return to his occupation because of his back discomfort. His exam remained unchanged." Dennis directed that he obtain an orthopedic evaluation "[t]o see if there was some possibly arthritic cause I was not aware of, of his inability to walk on his heels." Dr. Dennis examined petitioner again on November 1, 1984, by which time petitioner had been diagnosed by Dr. Marvin Korengold, also a neurosurgeon, as having primary lateral sclerosis. Dr. Dennis did not agree with that diagnosis and, upon examining petitioner on November 1, found his condition was "basically unchanged." Dennis stated that as of November 1, 1984, "the patient didn't have any evidence of a work-incurred disability." Significantly, Dr. Dennis' testimony included the following:
Q. Do you know what he [petitioner] has?
A. No, I do not.
*818 My belief is thatI know what he dosen't have, let's put it that way.
Q. I understand.
Well, given your course of treatment, your findings and particularly the flexion restrictions and occasional straight leg raise; you are saying he had a back strain up until November one, is that right?
A. Yes.
Q. That's with reasonable medical certainty?
A. Yes.
(Emphasis supplied). In addition, Dr. Dennis had earlier testified as follows:
Q. And when, based upon the histories obtained, findings made upon your examination, records reviewed, as well as diagnostic studies, when would those residuals or impairment have resolved?
A. I would say that most, the most reasonable date for that would have been November first, 1984.
Q. Doctor, as of that date, what restrictions and limitations would you have recommended upon the patient's physical and/or his work activities as a result of the injury which you have opinioned that he sustained on January 11, 1984?
A. None.
Once the depositions had been taken, the parties submitted their written closing arguments in accordance with the hearing examiner's direction. Included in petitioner's post-hearing memorandum was the argument, based on the above colloquy, that
[g]iven the testimony by Dr. Dennis in this record, and no other evidence pro or con on this issue from any other physicians, the Hearing Officer can find that the Claimant's compensation for back-related strain was terminated prematurely. . . .
(Emphasis supplied). In making this argument, petitioner was relying upon Dr. Dennis' testimony that petitioner had a back strain until November 1, 1984, some twenty-seven days after his employer terminated compensation.[4]
In due course the hearing examiner issued a proposed compensation order. In that order, the examiner found that "claimant does not have Stiffman's Syndrome and that the condition . . . diagnosed as Stiffman's Syndrome did not arise out of and in the course of claimant's employment." The hearing examiner also concluded, however, and this is the basis for the instant appeal, that
the question of claimant's disability [as] related to his back strain was not properly raised, the record on the issue was not developed, the employer did not address the question and the dates of disability claimant requests are not supported by the record. Therefore, this issue will not be considered herein.[5]
*819 Petitioner filed exceptions to the proposed compensation order, most specifically the hearing examiner's conclusion that petitioner was precluded from raising the issue of back strain. In his statement of exceptions to the proposed compensation order, petitioner challenged the hearing examiner's decision not to consider back strain, arguing
that once the issues were drawn in the understanding of the Hearing Officer, she gave no leeway during trial of the case or in footnote 1 for the receipt or admissibility of additional information favorable to the Claimant's case for additional compensation benefits since it was developed in post-hearing depositions. Since neither party was aware of Dr. Dennis' view of disability at the time of the opening statement of Claimant and the Employer or during the trial of the case before the Administrative Law Judge, this evidence was not available until the post-hearing depositions and briefs. If post-hearing depositions are going to be allowed before this agency, then the Hearing Officers are going to have to allow the necessary leeway that information developed subsequent to the hearing must indeed be accepted and not disallowed as such information was in this case.. . . Claimant asserts that his claim as stated for continuing temporary total [disability benefits] did not limit the Hearing Officer's inquiry only to whether work trauma was a precipitating factor of the Stiffman's Syndrome, but his claim for continuing temporary total benefits due to that injury, and it is the Hearing Officer who chose to narrow her consideration of the temporary total issue to whether or not the Stiffman's Syndrome was a precipitating or causally related factor.
(Emphasis supplied).
II.
Under the District of Columbia Administrative Procedure Act, which governs proceedings before DOES, a hearing examiner's decision in a contested case must include "a concise statement of the conclusions upon each contested issue of fact." D.C. Code § 1-1509(e) (1987). The DOES hearing examiner "shall inquire fully into matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters." 7 DCMR § 223.3 (1986); see, e.g., Ferreira v. District of Columbia Dep't of Employment Servs., 531 A.2d 651, 658 (D.C.1987) (petition for rehearing en banc pending). "Every decision and order adverse to a party to the case . . . shall be accompanied by findings of fact and conclusions of law. . . . Findings of fact and conclusions of law shall be supported by and in accordance with the reliable, probative, and substantial evidence." D.C. Code § 1-1509(e).
In the instant case, we confront a situation in which the hearing examiner made an affirmative decision not to address an issue a party attempted to raise, viz., whether claimant was disabled due to back strain caused by a work-related injury. Ordinarily, "`[i]f the agency fails to make a finding on a material, contested issue of fact, this court cannot fill the gap by making its own determination from the record, but must remand the case for findings on that issue.'" Nursing Servs., Inc. v. District of Columbia Dep't of Employment Servs., 512 A.2d 301, 303 (D.C.1986) (quoting Colton v. District of Columbia Dep't of Employment Servs., 484 A.2d 550, 552 (D.C.1984)); Lee v. District of Columbia Zoning Comm'n, 411 A.2d 635, 639 (D.C. 1980).
Thus, we must determine if there was a material and contested issue with respect to whether a work-related back strain gave rise to a disability in petitioner after October 4, 1984. We first consider whether this was a contested issue. Petitioner raised the issue of back strain in his post-hearing memorandum, which the hearing examiner had explained would be in the nature of written closing arguments.[6] Thus, it was *820 not because she did not realize it had been raised that the hearing examiner failed to address the issue. Rather, aware that petitioner advanced back strain as a basis for compensable disability, the hearing examiner made an affirmative decision not to consider the issue. For purposes of this appeal, in deciding whether the issue was truly a contested one, we must examine the record to determine if there are sufficient indicia of factual development on the point in contention to raise petitioner's "contest" of that issue to something more than a bald assertion of a theory of recovery for which the record contains no evidentiary basis of support. We are satisfied that Dr. Dennis' testimony, quoted above, provides an evidentiary foundation sufficient to make this a contested issue. This is not to say that we are reaching the question whether there was substantial evidence to support a finding in favor of petitioner on this issue for, as we explain below, in circumstances like those present here that question should be addressed in the first instance by the agency.
With respect to materiality, we observe that this court has stated that "an issue is not necessarily `material' simply because evidence was presented on the point at the hearing." Lee, supra, 411 A.2d at 638. Accordingly, were we to conclude that the question of back strain is not material to resolution of petitioner's claim for disability compensation, then the hearing examiner's failure to consider the question should not result in a reversal because "an administrative agency does not have to make findings of fact upon contentions that are collateral or immaterial." Id. (citing Minneapolis & St. Louis Ry. Co. v. United States, 361 U.S. 173, 80 S. Ct. 229, 4 L. Ed. 2d 223 (1959)). On the record before us, however, we have little difficulty concluding that the issue of back strain was material to the hearing examiner's determination regarding disability benefits. If, upon considering the matter, the hearing examiner had concluded that petitioner's work-related fall had resulted in back strain that prevented him from returning to work until November 1, 1984, undoubtedly she would have recommended compensation for that period. Since compensation was the bone of contention, the question of back strain (whether petitioner had it, how it happened, and whether it prevented him from returning to work) was clearly material to the hearing examiner's inquiry.
Yet the hearing examiner apparently determined that petitioner's failure to identify the issue in question before or during the hearing precluded him from raising it after the hearing. While there is support for the proposition that this court will sustain a determination that a petitioner is precluded from raising issues not advanced before the conclusion of the hearing, 1880 Columbia Rd., N.W., Tenants' Ass'n v. District of Columbia Rental Accommodations Comm'n, 400 A.2d 333, 339 (D.C.1979) (citing John D. Neumann Properties, Inc. v. District of Columbia Bd. of Appeals and Review, 268 A.2d 605, 606 (D.C.1970)), we think the peculiar procedural posture of the instant case makes it distinguishable. It is true that snippets in the record suggest that the parties and the hearing examiner may have agreed among themselves, either explicitly or implicitly, that petitioner's case would rise or fall on the issue of stiff-man syndrome.[7] This is not, however, a case *821 where the petitioner, having seen the proposed compensation order and realizing his failure to convince the examiner that compensation was due, attempted to take a second bite at the apple by advancing a new theory of recovery. Thus, the instant case is distinguishable from 1880 Columbia Rd., N.W., Tenants' Ass'n v. District of Columbia Rental Accommodations Comm'n, 400 A.2d 333 (D.C.1979), in which this court sustained a Commission determination "that petitioner was precluded from raising this issue since petitioner had failed to raise the issue at the Examiner's hearing." Id. at 339. There the court noted that "[o]nly after the hearing was the issue raised concerning the burden of proof, and then only indirectly in a letter from a representative of petitioner's association to the Hearing Examiner." Id. Rather, the instant case is more akin to a proceeding in which the hearing examiner failed to consider an issue raised during the hearing itself.
The hearing examiner stated in her report that "[petitioner] did not make this argument [regarding back strain] at the formal hearing." It is true that, at the hearing, petitioner did not raise the issue of back strain with the same degree of specificity as he raised the issue of stiff-man syndrome. But, as the opening statements at the hearing demonstrated, neither party was prepared at that time to raise, let alone prove or disprove, the various possible theories of recovery. This is because the parties adduced no medical testimony at the hearing. Each of the key physicians quoted in the hearing examiner's report (Kratz, Blazina, Dennis) testified after the hearing itself. Thus, contrary to the hearing examiner's implicit suggestion, this is not a case in which the record had been well developed before the hearing but was left open at the last minute for one reason: additional evidence concerning stiff-man syndrome. In fact, it is improbable that, on the record as it existed at the close of the hearing itself, the hearing examiner could have reached any decision at all. The only witness at the hearing was petitioner, and he merely recounted the circumstances of his fall and his numerous visits with doctors. This state of the record accounts for the hearing examiner's decision to leave the *822 record open after the hearing.[8]
Given that (1) the record was left open for depositions, and that Dr. Dennis' deposition contained testimony that arguably supports the position that petitioner's work-related back strain caused disability until November 1, 1984, and (2) petitioner made this argument before close of the record, we conclude that the hearing examiner was obliged at least to consider that issue. Although the hearing examiner took the view that the record was left open for a discrete purpose, viz., the consideration only of stiff-man syndrome, the record before us does not support such a contention. First, the language quoted above, supra at 817, with which the hearing examiner opened the hearing, is most general in nature; nowhere in the record, aside from the compensation order itself, is it suggested, let alone documented, that the sole contention post-hearing was whether petitioner had stiff-man syndrome and, if so, whether that affliction was caused or aggravated by his work-related fall. Furthermore, the record does not support the hearing examiner's statement in footnote 1 that "[t]he parties took several post-hearing depositions and developed evidence concerning the claimant's disability from Stiffman's Syndrome exclusively." (Emphasis supplied). Our review of the post-hearing depositions reveals that they were not limited to stiff-man syndrome. In fact, the depositions covered a broad range of matters pertaining to petitioner's physical condition. While stiff-man syndrome was clearly a major issue of contention in the depositions, it certainly was not the only issue explored.
Accordingly, because the hearing examiner left the record open without any indication that the post-hearing inquiry was limited to the matter of stiff-man syndrome, and because Dr. Dennis' testimony at least arguably supports the proposition that petitioner experienced until November 1, 1984, a work-related disability due to back strain, the hearing examiner was obliged to consider this material, contested issue. We decline the employer's invitation to scrutinize Dr. Dennis' testimony closely with a view to determining whether it affords substantial evidence to support a conclusion that petitioner's back strain gave rise to a disabling injury during the time period in dispute. It is inappropriate, except possibly in a clear case, for an appellate court to assume the role of making such determinations in the first instance. Rather, the orderly processes of administrative law include the agency's initial determination of such matters.
In light of the foregoing, we reverse and remand this case for findings of fact and conclusions of law on the narrow question of whether petitioner is due compensation benefits for the period between October 4 and November 1, 1984, by reason of back strain caused by the work-related injury of January 16, 1984.
Reversed and remanded.
NOTES
[1] Stiff-man syndrome is a rare affliction with less than one hundred cases reported in the medical literature worldwide. It has been described as a generalized process predominantly involving the axial musculature of the paraspinal muscles along the spine from the neck to the sacral region, and consists basically of an inability to relax the muscle because of muscle hypertensity secondary to overactive nerve impulses to the muscles. There are many theories of the causes of stiff-man syndrome. Petitioner contended that it caused him to walk with his feet plantar-flexed, i.e., on tiptoes. While the affliction is spelled "stiff-man syndrome," see DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1298 (26th ed. 1981), in the record it also has been referred to variously as "Stiffman's Syndrome," "Stiff Man Syndrome," and "Stiff Man's Syndrome."
[2] Petitioner also raised the issue of whether substantial evidence exists to support the hearing examiner's conclusion that petitioner does not have stiff-man syndrome and that, even if he did have that condition, it did not arise out of and in the course of his employment, and that his work-related injury was not a precipitating factor in progression of the stiff-man syndrome. We dispose of this issue summarily, as we find more than substantial evidence to support the hearing examiner on this point. E.g., Jadallah v. District of Columbia Dep't of Employment Servs., 476 A.2d 671, 675 (D.C.1984) ("`we should not disturb a decision if it rationally flows from the facts relied upon, and those facts or findings are substantially supported by the evidence of record,'" (quoting Kramer v. District of Columbia Dep't of Employment Servs., 447 A.2d 28, 30 (D.C.1982))). Dr. John Blazina testified that petitioner did not have stiff-man syndrome, both because petitioner's symptoms differed from those associated with the disease and also because nothing in the medical literature indicates a relationship between trauma and this affliction. Dr. Blazina's opinion was supported by the testimony of Dr. Michael Dennis, who identified stiff-man syndrome as a rare disease, with only about a hundred cases reported in the world-wide medical literature, in which "trauma to the low back region plays [no] role at all." In addition, Dr. Dennis testified that trauma to the low back could not aggravate a pre-existing stiff-man syndrome. In light of the foregoing, and because "[a]n agency's findings of fact are conclusive on this court if supported by substantial evidence in the record," Liberty v. District of Columbia Police & Firemen's Retirement & Relief Bd., 452 A.2d 1187, 1189 (D.C.1982), we reject petitioner's contention that substantial evidence does not support the hearing examiner's conclusions on the issue of stiff-man syndrome.
[3] Dr. Dennis next examined Davis on April 23, 1984, and Davis complained for the first time of an "inability to walk in a normal heel to toe fashion. And he had a tendency to walk on his toes." Dr. Dennis' diagnosis "did not" change in any way, however. The next visit was July 5, 1984, at which time Davis "continued to experience inability to walk on his heels. And at that time he experienced some difficulty dorsi-flexing his feet, meaning pulling the feet up." At this point Dr. Dennis examined Davis' shoes, which were only a few months old, and noticed that they appeared to be wearing down evenly on both heels. This suggested to Dr. Dennis that "at some point he obviously was walking on the heels." There were no other significant clinical findings as of July 5, and Dr. Dennis testified that he "could not find an organic cause for the patient's particular problem."
[4] Petitioner's counsel stated during oral argument that even though recovery based upon a theory of back strain might realize for petitioner only an additional twenty-seven days of compensation, it would also have an important bearing on award of costs and attorneys' fees.
[5] The hearing examiner's decision not to consider the issue of back strain was contained in footnote one of her report. That footnote states in full:
Claimant argues in his brief that he is entitled to benefits based upon his back strain from October 25, 1984, "which the carrier chose as their date for termination of compensation" until November 1, 1984, the date Dr. Dennis felt claimant's disability had ended "irrespective of the Stiff-man's Syndrome." Claimant's Brief at 13. Claimant did not make this argument at the formal hearing. Rather, claimant limited the inquiry to whether the work trauma was a precipitating factor of the Stiffman's Syndrome. At the formal hearing and in its brief, employer commented only on the nature and extent of the disability related to the Stiffman's Syndrome. The parties took several post-hearing depositions and developed evidence concerning the claimant's disability from Stiffman's Syndrome exclusively. Further, the parties stipulated that the employer paid temporary total disability benefits until October 4, 1984 not, as claimant suggests in his closing remarks, October 25, 1984. Finally, in his opening statement, claimant stated that Dr. Dennis concluded as early as April 23, 1984 that claimant's main problem was an inability to walk on his heels and not chronic back strain. Accordingly, I conclude that the question of claimant's disability related to his back strain was not properly raised, the record on the issue was not developed, the employer did not address the question and the dates of disability claimant requests are not supported by the record. Therefore, this issue will not be considered herein.
[6] At the hearing, the examiner explained that counsel could "make them now or submit a short summary of the medical evidence." Counsel agreed on the latter, written approach. In his post-hearing submission, petitioner argued that "[g]iven the testimony by Dr. Dennis in this record, and no other evidence pro or con on this issue from any other physicians, the Hearing Officer can find that the Claimant's compensation for back-related strain was terminated prematurely. . . ." Petitioner noted that this could be significant in terms of "permitting reimbursement of Claimant's costs and, giving Claimant's attorney a de minimis fee pursuant to the 20% limitation of benefits provision currently existent under the Act."
[7] For example, petitioner's counsel asserted in his opening statement before the hearing examiner that
. . . what we are saying . . . is that . . . it is more probable, and therefore, it is provable with reasonable medical certainty that this condition of Stiff Man's Syndrome was precipitated, caused, aggravated, accelerated or whatever term contributed to by the injury, in the nature of an aggravation of a previously perhaps asymptomatic condition.
Now, I am not going to admit that that was there previously. ThisDr. Hurston says it was a pre-existing condition. Dr. Dennis says it was a pre-existing condition. If it was there, it was asymptomatic. It was unknown and it was undiagnosed. The way I see the case, what happens is he has the back injury and that precipitates the Stiff Man Syndrome as time goes on, as he attempts to work and the condition just completely worsens, and it goes from his back to his legs and then up to his back at times again.
(Emphasis supplied).
He added, however, that
I think this is all related to one injury, that is the January 16 of `84, but if you are inclined to think that maybe this is a combination of both a related condition, that is the back condition and an unrelated condition, that is the neuro-muscular disorder of Stiff Man's Syndrome, you can still find under the law that he is entitled to temporary total disability benefits.
Following petitioner's opening statement, WMATA's attorney presented an opening statement of his own:
I think I am going to be very brief at this point.
Certainly there has been a recent development in this case; i.e., the contention that Mr. Davis has Stiff Man's Syndrome, and I think basically what we are dealing with at this point is a question of one, does he have Stiff Man's Syndrome and is that the appropriate diagnosis as the claimant contends; and two, even assuming that he does have it, is it causally related to this episode on January 16, 1984?
At this point, I'll be honest, I don't know what the outcome of this case is going to be. The medical information and the contention that he has Stiff Man's Syndrome which is causally related to the January 16, `84 episode is of very recent origin, even though the claim dates back over a year ago.
Maybe all the doctors; i.e., when Dr. Dennis examines this individual again, we get back to Dr. Blazina and see what he has to say, maybe they will all be in agreement that he does have Stiff Man's Syndrome. Maybe all the doctors will be in agreement that it is causally related to this accident of January 16, 1984. I don't know the answer now, and I will be honest with you, and that was one of the reasons I felt it might be appropriate to continue it, but we will proceed now and we will see what the medical evidence says, and if there is a dispute, then you will have to weigh that.
I think the employer will take the appropriate position. If there is no dispute and everyone is in agreement, I'm sure the carrier will pick it up and pay it.
[8] Although DOES regulations provide that where a hearing examiner "believes that there is relevant and material evidence available which has not been presented at the hearing, the hearing may be adjourned or, at any time prior to filing of the compensation order, the hearing may be reopened for the receipt of the evidence," 7 DCMR § 223.4 (1986), we note that "[o]rdinarily, the record closes upon termination of the hearing below," except for post-hearing submission of memoranda. Harris v. District of Columbia Rental Housing Comm'n, 505 A.2d 66, 69 (D.C.1986). "[W]here an agency deviates from this course, it must notify the parties to an administrative hearing that new evidence is being officially noticed in order to give the parties sufficient opportunity to make an appropriate challenge or response." Williams v. District of Columbia Bd. of Zoning Adjustment, 535 A.2d 910, 912 n. 3 (D.C.1988) (citing Carey v. District Unemployment Compensation Bd., 304 A.2d 18, 20 (D.C.1973)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355208/ | 270 S.C. 100 (1978)
240 S.E.2d 649
Brown C. ROSS, Jr., Respondent,
v.
RICHLAND COUNTY and South Carolina Department of Highways and Public Transportation, Defendants, of whom South Carolina Department of Highways and Public Transportation is, Appellant.
20581
Supreme Court of South Carolina.
January 16, 1978.
*101 Daniel R. McLeod, Atty. Gen., Marvin C. Jones, A. Camden Lewis, and F. Kimball Joyner, Jr., Asst. Attys. Gen., of Columbia, for Appellant.
Thomas H. Pope, III, of Newberry, for Respondent.
January 16, 1978.
NESS, Justice:
May a county court judge, after determining his court lacks jurisdiction, transfer the case to the court of common pleas? We conclude a court without jurisdiction only has authority to dismiss the action.
Respondent brought suit against Richland County and the South Carolina Department of Highways and Transportation, alleging property damage caused by an alleged *102 defect in the road. At the trial in Richland County Court, the Highway Department moved to dismiss the suit on the ground the county court did not have jurisdiction over the Department as a state agency. Relying upon Martin v. Ellisor, 264 S.C. 202, 213 S.E. (2d) 732 (1975) and Harden v. S.C. State Highway Department, 266 S.C. 119, 221 S.E. (2d) 851 (1976), the county court judge decided his court was without jurisdiction and ordered the matter transferred to the court of common pleas.
We need not determine the soundness of the trial judge's decision regarding jurisdiction since neither party contests it. The sole issue on appeal is whether the trial judge properly transferred the case.
We agree with appellant's assertion that the trial judge had no authority to transfer the action. As stated in 21 C.J.S. Courts § 505, p. 774:
"Where an action is brought in a court which has no jurisdiction thereof, such court has no power to transfer the action to another court having jurisdiction to entertain it, but should dismiss it, unless provision is made by statute for the transfer of cases under such circumstances..."
We were unable to discover and were not cited to any statutory provision authorizing the instant transfer. Section 14-21-130 of the Code of Laws of South Carolina (1976) vests a county court with power to transfer certain actions to the family court, but there is no provision authorizing the county court, upon finding it lacks jurisdiction of a matter, to transfer it to another court.
The law is well settled that when a court has no authority to act, its acts are void. Russell v. Bea Staple Mfg. Co., 266 N.C. 531, 146 S.E. (2d) 459 (1966); Davis v. Page, 125 S.E. (2d) 60 (Ga. 1962); Cruikshank v. Duffield, 138 W. Va. 726, 77 S.E. (2d) 600 (1953).
An analogous case is Fox v. Board of Regents of University of Michigan, 375 Mich. 238, 134 N.W. (2d) 146 *103 (1965), in which the plaintiff filed suit in the circuit court when his action should have been brought in the court of claims. Upon finding the court of claims to have exclusive jurisdiction over such suits, the circuit court ordered the case transferred. The Michigan Supreme Court ruled the transfer of the case to be a nullity and stated:
"[W]hen a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void." 134 N.W. (2d) at 148.
Similarly, in Caudell v. Leventis, 43 So. (2d) 853 (Fla. 1950), the plaintiff filed suit in the circuit court but failed to allege sufficient damages to meet the court's jurisdictional requirement. The Florida Supreme Court, in holding the circuit court's transfer of the case to the proper court to be void, stated, "in the absence of some such authority the only lawful order which could have been entered by the trial judge was an order of dismissal." 43 So. (2d) at 855.
This Court has consistently adhered to the rule that the acts of a court without jurisdiction are without effect. Toomer v. Toomer, 244 S.C. 399, 137 S.E. (2d) 406 (1964); State v. Funderburk, 259 S.C. 256, 191 S.E. (2d) 520 (1972. We stated in Ex parte Hart, 186 S.C. 125, 133, 195 S.E. 253, 256 (1938):
"It is a universal principle as old as the law, that the proceedings of a Court without jurisdiction are a nullity, and its judgment without effect, either on the person or property."
The lower court, upon finding it lacked jurisdiction, was therefore without power to order the case transferred. We reverse that portion of the order purporting to transfer the case to the Court of Common Pleas and dismiss the action.
Dismissed.
LEWIS, C.J., and LITTLEJOHN, RHODES and GREGORY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2189452/ | 915 N.E.2d 988 (2009)
SCOTT
v.
STATE.
Supreme Court of Indiana.
April 30, 2009.
Transfer denied. All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355260/ | 143 Ga. App. 696 (1977)
240 S.E.2d 149
JAMES
v.
THE STATE.
54467.
Court of Appeals of Georgia.
Argued September 7, 1977.
Decided October 18, 1977.
Rehearing Denied November 2, 1977.
King, Phipps & Associates, Herbert E. Phipps, C. B. King, for appellant.
D. E. Turk, District Attorney, Gary C. Christy, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
1. The evidence, although largely circumstantial, is ample to uphold the conviction for the offense of deceptive business practices by securing payment for a load of 30,440 pounds of soy beans and in fact delivering only 6,500 pounds. The practice was for the purchaser, Gold Kist, Inc., to weigh in the sellers' trucks after which the drivers proceeded to the delivery line and dumped the soy beans. The empty truck was then weighed and the seller paid for the difference in weight. In the present case the defendant weighed in a fully loaded blue truck. He was subsequently noticed in the delivery line with a green truck about half full of soy beans, and a quick check located the original truck on the premises of defendant's relatives, whereas the partial load was represented to be and delivered as the larger quantity which had been previously weighed. The defendant's motion for directed verdict was properly denied.
2. The right, on invoking the rule of sequestration (Code § 38-1703), to have the witnesses testify out of each other's hearing, is substantive and mandatory. Poultryland, Inc. v. Anderson, 200 Ga. 549, 562 (37 SE2d 785). The burden of showing an exception (where the witness is needed to advise the district attorney, or where the absence of an official witness would impair the efficiency of the court) is on the state. Montos v. State, 212 Ga. 764, 765 (95 SE2d 792). If that burden is carried, the witness should then be sworn first in order that his testimony be taken before he has the unfair advantage of *697 hearing the other witnesses for the state. Tift v. Jones, 52 Ga. 538 (4); Massey v. State, 220 Ga. 883, 895 (142 SE2d 832). As demonstrated by Massey, failure to do so or offer a sufficient reason for not doing it is reversible error. See also Stuart v. State, 123 Ga. App. 311 (180 SE2d 581). However, in later expressions of the opinion of the Supreme Court (Jarrell v. State, 234 Ga. 410, 420 (6) (216 SE2d 258); Fountain v. State, 228 Ga. 306 (3) (185 SE2d 62) and McNeal v. State, 228 Ga. 633 (4) (187 SE2d 271)), it has been held that where a reason is proffered by the district attorney and the trial court exercises his discretion, not only in allowing the witness to remain in the courtroom, but also in allowing him to hear the testimony of other witnesses before himself testifying, no error is shown. We presume this means there may be, but in those cases was not, an abuse of discretion, and that the reviewing court might still find, under the facts of a given case, that such procedure in the face of the Code section and as a mere matter of accommodation to the district attorney, violated the substantive rights of the defendant. The only reason offered here for not taking the witness first after allowing him to remain in the courtroom as the nominal prosecutor was that the district attorney felt it would be confusing to the jury to take this testimony out of sequence, and before laying a proper foundation. The question under all the testimony in the case is a close one. While disapproving the procedure used (a witness should not, save in very exceptional circumstances, be allowed to remain in the courtroom after the rule of sequestration is invoked and then also allowed to testify after the other witnesses have been heard) we cannot be certain that the trial court abused his discretion in the instant case.
3. During the trial and on cross examination of one of the state's witnesses defense counsel ascertained that the witnesses had made written statements shortly after the events in question and thereupon asked that the court order copies to be turned over to him for examination or in the alternative that the court make an in camera inspection of the material for the purpose of determining whether they contained exculpatory material or contradictory statements which might be relevant for impeachment purposes. Both motions were *698 denied.
While it has been stated (Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30); Street v. State, 237 Ga. 307 (9), 316 (227 SE2d 750)), that the appellant has the burden of showing how his case has been materially prejudiced even when the trial court declines an in camera inspection, in Williams v. Dutton, 440 F2d 797, 800, it was held: "The Brady [v. Md., 373 U.S. 83 (83 SC 1194, 10 LE2d 215)] decision ... imposes an affirmative duty on the prosecution to produce at the appropriate time requested evidence which is materially favorable to the accused either as direct or impeaching evidence... Appellee insists that Brady is inapplicable to the present case because there has been no showing that the evidence demanded was favorable to Williams. We think, however, that due process of law cannot be sidestepped by such a facile distinction." Prior statements of key witnesses for the state are one of the categories about which there is the least disagreement: In general defense counsel is entitled to them on proper demand. It is noted of course that in the Federal practice both the names of witnesses and their statements are controlled by the Jencks Act, 18 USCA § 3500 which does not have a counterpart in state law. In that regard see United States v. Houston, 339 FSupp. 762; United States v. Garrison, 348 FSupp. 1112. But Georgia also recognizes the right of the defense to procure, for impeachment purposes, statements given prior to the trial by key prosecution witnesses. Rini v. State, 235 Ga. 60, 64 (218 SE2d 811). The proper way to obtain these statements is by a motion to produce. Brown v. State, 238 Ga. 98 (231 SE2d 65). This is perfectly feasible, at least as to the witnesses listed on the indictment as these were, or furnished on demand under Code § 27-1403. Technically speaking, there was no notice to produce and the demand for inspection, coming in the course of the trial as this did, was made too late. However, at the time of the trial it had not been established in Georgia that a notice to produce could be utilized as a defense tool in a criminal case, and we feel that under the circumstances the defendant was denied a potentially valuable right guaranteed him by due process standards.
It is ordered that on the return of the remittitur in *699 this case the court examine in camera all written statements made prior to trial by the witnesses for the state and, if he finds material of an exculpatory or impeaching character, that he order a new trial, copies of such statements to be delivered to defense counsel.
Judgment affirmed with direction. Webb and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355300/ | 144 Cal. App. 2d 531 (1956)
301 P.2d 385
In re WILLIAM J. McNALLY, on Habeas Corpus.
Docket No. 3279.
Court of Appeals of California, First District, Division Two.
September 20, 1956.
*532 William J. McNally, in pro. per., for Petitioner.
Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General, for Respondent.
DRAPER, J. pro tem.[*]
Petitioner is an inmate of San Quentin Prison. By this writ of habeas corpus he seeks enforcement of a number of claimed rights. Petitioner alleges that he has been named as defendant in a civil action brought in Los Angeles County, that he applied to the Adult Authority for restoration of his civil rights to the extent of permitting him to engage named counsel for defense of that action, and that such application was denied. None of these allegations is controverted.
"A sentence of imprisonment in a State prison for any term less than life suspends all the civil rights of the person so sentenced ... But the [Adult Authority] may restore to said person during his imprisonment such civil rights as the board may deem proper," with exceptions not material here. (Pen. Code, § 2600.)
[1] One imprisoned is still liable to be sued, and "this liability necessarily carries with it the right to defend." (People v. Lawrence, 140 Cal. App. 2d 133 [295 P.2d 4].) This right is qualified by the rule that the prisoner is not entitled to be personally present at any part of the proceedings. (People v. Lawrence, supra; In re Bagwell, 26 Cal. App. 2d 418, 420 [79 P.2d 395].)
[2] It follows clearly that the prisoner is entitled to representation by counsel in such a civil proceeding. Certainly his right to defend would be wholly illusory if, lacking the right to be present in person, he could also be denied the right to employ counsel. Thus the application for limited restoration of rights should have been granted.
[3] "The writ of habeas corpus has been allowed to one *533 lawfully in custody as a means of enforcing rights to which, in his confinement, he is entitled." (In re Chessman, 44 Cal. 2d 1, 9 [279 P.2d 24] and cases cited.)
It is therefore ordered that the civil rights of petitioner be and be deemed restored to the limited extent of permitting him to employ counsel to present his defense in the civil action described in his petition.
The other points raised by the petition have been determined adversely to petitioner in other proceedings (People v. McNally, 134 Cal. App. 2d 410 [285 P.2d 716]; In re McNally, 46 Cal. 2d 307 [293 P.2d 777]), or are wholly without merit. In all respects save that outlined above, the order to show cause is discharged and the petition denied.
Nourse, P.J., and Kaufman, J., concurred.
Petitioner's application for a hearing by the Supreme Court was denied October 17, 1956.
NOTES
[*] Assigned by Chairman of Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355323/ | 144 Ga. App. 69 (1977)
240 S.E.2d 270
CLARK
v.
THE STATE.
53734.
Court of Appeals of Georgia.
Argued April 4, 1977.
Decided October 25, 1977.
Rehearing Denied November 18, 1977.
Sams & Glover, A. Harris Adams, for appellant.
Thomas J. Charron, District Attorney, Richard L. Sloss, Assistant District Attorney, for appellee.
SMITH, Judge.
In the Superior Court of Cobb County, Clark was convicted on two counts of burglary. He appeals his conviction on Count 1, which charged him with the March 20, 1975, burglary of Charter Oak Development Company. Because his prosecution on that count was barred by collateral estoppel, we reverse.
The evidence shows that, at about 8:30 p. m. on March 20, 1975, a lone burglar entered Charter Oak Development Company and stole, among other items, a check writing machine. On April 7, 1975, Clark was arrested in Gwinnett County, at which time he had in his possession the check writing machine. In Gwinnett County on May 16, 1975, Clark pled guilty to a charge that on April 7 he possessed the machine, "knowing said property was stolen, said property not having been retained with intent to restore it to the owner." On November 14, 1975, a Cobb County jury returned a guilty verdict against Clark on the charge that he had perpetrated the March 20 burglary of Charter Oak.
The court below erroneously overruled Clark's motion for new trial, which alleged that collateral estoppel, a principle embodied within the constitutional proscription of double jeopardy, barred the prosecution against him for the burglary of Charter Oak. In Ashe v. Swenson, 397 U.S. 436 (90 SC 1189, 25 LE2d 469), the Supreme Court decided that the doctrine of collateral estoppel was a part of the Fifth Amendment's guarantee against double jeopardy, a guarantee which that court had previously found to be applicable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (89 SC 2056, 23 LE2d 707). The Supreme Court announced that collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe, supra, p. 443. The Supreme Court in Ashe went on to point out that collateral estoppel had long been an established rule of federal criminal law as well as civil law.
*70 The essence of the crime of receiving stolen property is that the defendant, with knowledge of the facts and without intent to return it to the owner, bought or obtained property which had been stolen by some person other than the defendant. Austin v. State, 89 Ga. App. 866 (81 SE2d 508); Wells v. State, 127 Ga. App. 109 (192 SE2d 567). On convicting Clark of the charge that he knowingly received the stolen check writer, the Gwinnett County Superior Court necessarily determined that the Charter Oak burglary had been committed by someone other than Clark. The state is collaterally estopped from prosecuting Clark for the burglary and attempting to relitigate and disprove that determined fact.
Clark did not waive his plea of former jeopardy by his counsel's failure to raise it in form of a pre-trial motion. See Phelps v. State, 130 Ga. App. 344 (203 SE2d 320). Although Clark's counsel was informed of his client's prior convictions on other charges, he did not know until after the trial had begun that Clark had been convicted of receiving the stolen check writing machine. The fact that Clark himself did know makes no difference, as it cannot be assumed that he understood the collateral estoppel and double jeopardy ramifications of such a conviction. Moreover, counsel's lack of knowledge about the prior conviction was at least in part due to the state's failure to disclose it in response to his pre-trial motion requesting production of "any and all information known to or in the possession and control of the government which would constitute exculpatory, helpful, favorable or arguably favorable evidence." In Brady v. Maryland, 373 U.S. 83, 87 (83 SC 1194, 10 LE2d 215), the Supreme Court announced that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Because of the state's failure to disclose and because the Supreme Court has restricted the application of waiver in cases involving double jeopardy and a person's constitutional right not to be hailed into court (e.g., Blackledge v. Perry, 417 U.S. 21 (94 SC 2098, 40 LE2d 628)), it cannot be said that Clark waived his double jeopardy plea.
*71 Judgment reversed. Bell, C. J., and McMurray, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312901/ | ROSANNA MALOUF PETERSON, United States District Judge
BEFORE THE COURT is Plaintiffs' Motion for Preliminary Injunction, ECF No. 25. Plaintiffs, a group of technology firms primarily engaged in the business of cryptocurrency mining, asked this Court to enjoin Grant County PUD No. 2 from implementing its "Evolving Industries" electricity rate class, which substantially increases the cost of electricity supplied to "evolving industries," including Blocktree *1110and other Grant County cryptocurrency miners. The Court finds that Blocktree has failed to show that they will suffer irreparable harm unless a preliminary injunction is imposed. Further, Blocktree is not likely to succeed in showing that Rate Schedule 17 is discriminatory or arbitrary, that their classification as an evolving industry was made without due process, or that the District's actions violated Blocktree's right to carry on a business under the Washington State Constitution's Privileges and Immunities Clause. Therefore, the Court denies Blocktree's request for a preliminary injunction.
BACKGROUND
Cryptocurrency Mining and Blockchain Technology
Plaintiffs Blocktree Properties, LLC; Corsair Investments WA, LLC, Cytline, LLC; 509 Mine, LLC, MIM Investors, LLC; Miners United, LLC; Telco 214 Wholesale Software, Inc.; Mark Vargas; and WeHash Technology, LLP (collectively, "Blocktree") are a group of technology firms that provide verification and security services for blockchain-based cryptocurrencies. ECF No. 25 at 11. Cryptocurrencies are digitally-based currency that exist solely on the internet and are unregulated and unmanaged by third parties, such as banks or governments. ECF No. 1 at 7-8. The blockchain is the data structure through which cryptocurrency transactions are identified, tracked, and shared across networks of computers, working as a digital ledger. Id. Supporters of cryptocurrencies claim that the blockchain allows for more secure and transparent monetary transactions than traditional payment methods. Id.
For the blockchain to track cryptocurrency transactions, the transactions must be verified by independent blockchain participators. ECF No. 1 at 7-8. Blockchain verifiers, also known as cryptocurrency miners, are given the chance to verify cryptocurrency transactions by solving complicated mathematical problems. Id. The first miner to solve the problem, and then verify the transaction on the blockchain, is rewarded with a small amount of cryptocurrency. Id. Miners rely on advanced and specialized computer hardware to successfully mine cryptocurrency before others can secure the cryptocurrency reward for themselves. Id.
Because cryptocurrency mining is technologically complex and requires advanced equipment, one of a miner's biggest expenses is electricity. ECF No. 1 at 9. Cryptocurrency miners work to reduce their power bills by locating their operations in areas with inexpensive and reliable access to high amounts of electricity. ECF No. 37-6 at 99.
Grant County PUD No. 2's Relationship with Cryptocurrency Miners
Defendants are Grant County Public Utility District Number 2, its Commissioners, and staff (collectively, "the District"). ECF No. 1 at 6-7. The Public Utility District is established under Title 54 of the Revised Code of Washington and operates as a municipal corporation at the direction of elected Commissioners, who are assisted by hired staff. ECF No. 37 at 9. The District boasts one of the least expensive power rates in the country due to its close proximity to reliable energy sources, such as the Grand Coulee Dam. ECF No. 32-1 at 656. Blocktree, drawn to the District by the affordable and reliable electricity, set up operation centers in the District over the previous five years. ECF No. 25 at 11.
The District charges its customers for power based on the customers' operations and power consumption. ECF No. 37 at 9. Customers of similar industries and operations are grouped into rate classes and are *1111charged for power under the rates imposed on each class. Id. Currently, Blocktree is charged under Rate Schedule 7 ("RS-7"), which is the rate for large general service customers who use between 200 kW1 and 5,000 kW of power a month. ECF No. 37-6 at 4-5.
The District contends that it received unprecedented interest from cryptocurrency miners in the summer of 2017. ECF No. 37-6 at 7. Since 2017, the District states that it has received interest from over 125 cryptocurrency mining companies, which the District equates to 1,500 MW of power, more than double the District's average load of 600 MWa. Id. The District became worried that the large number of cryptocurrency miners would overload the District's power systems and inhibit the District's ability to supply power to all of its customers. Id. at 8. Additionally, the District was worried about the risks imposed by the uncertainties in the cryptocurrency mining industry and whether the miners' failure to profit from the activity would result in a failure to pay high power bills, leaving the rest of the District's customers responsible for the unpaid electricity. Id. at 10.
To address the issues generated by the growing interest from cryptocurrency miners, the District developed two different strategies. The first was known as a two-queue approach. ECF No. 37-6 at 13. Under the two-queue approach, "traditional" customers are placed in one queue for electricity, and those belonging to an "evolving industry," such as cryptocurrency miners, are placed in another queue. Id. The District would service the traditional customers before servicing those in the evolving industry queue. Id. The second strategy developed by the District was the evolving industry rate class, whose electricity bills would be calculated under the newly-developed Rate Schedule 17 ("RS-17"). Id. at 16.
Rate Schedule 17
The District's hired staff began the creation of RS-17 in late 2017 as an approach to handle the sudden interest from cryptocurrency mining companies. ECF No. 37-6 at 11. On April 24, 2018, the staff, in a public presentation, recommended that the Commissioners establish a new rate schedule for industries like cryptocurrency mining that face certain viability risks while simultaneously consuming a relatively large portion of the District's power load. Id. at 64. On May 8, 2018, the Commissioners approved the creation of an evolving industry class by passing Resolution No. 8885. Id. at 75.
Following Resolution No. 8885, the District's staff drafted a memorandum describing the problems presented by the rapidly-growing cryptocurrency mining industry and how the new rate class, authorized by the Resolution, could potentially solve those issues. ECF No. 37-6 at 90. The staff recommended that customers would be placed into the "evolving industry" category, and therefore subjected to the secondary queue and RS-17, if the industry in question showed certain risks. The District classified the risks into three categories, as quoted from the memorandum:
*1112Regulatory Risk - Risk of detrimental changes to regulation with the potential to render the industry inviable within a foreseeable time horizon.
Business Risk - Potential for cessation or significant reduction of service due to a concentration of business risk, in an evolving or unproven industry, in the value of the customer's primary output.
Concentration Risk - Potential for significant load concentration within Grant PUD's service territory resulting in a meaningful aggregate impact and corresponding future risk to Grant's revenue stream. Evaluation would begin to occur when industry concentration of existing and service request queue customer loads exceeds 5% of Grant PUD's total load.
Id. at 91.
The staff recommended that an industry be categorized as an evolving industry if the industry showed a concentration risk and one of the other two risks, and that the District evaluate an industry's placement in the evolving industry category on an annual basis. ECF No. 37-6 at 91. For regulatory risk, the District would consider pending state and federal legislation, regulatory rulings from state and federal agencies, and feedback from investment banks. Id. For business risk, the District would consider trends in the price volatility of the industry's primary product, the financial strength of market participants, and the viability and competitiveness of the industry based on the threat of new entrants, threat of substitutes, bargaining power of customers, bargaining power of suppliers, and industry rivalry. Id. For concentration risk, the District would consider whether all customers within the industry use 5% or more of the District's power load. Id. After another public meeting on June 26, 2018, the Commissioners adopted RS-17 by passing Resolution No. 8891 on August 28, 2018. Id. at 111. Thereafter, cryptocurrency mining was classified as an evolving industry, subject to the secondary queue and RS-17. ECF No. 32-1 at 490.
The rate charged for electricity under RS-17 is significantly higher than the rate charged under RS-7. As a result, the District decided to incrementally implement RS-17. ECF No. 37-6 at 113. The District will begin charging RS-17 rates to evolving industry customers on April 1, 2019. Id. The rate will increase on April 1, 2020, and then increase again to its full rate on April 1, 2021. Id. Rates are calculated on a monthly basis by totaling three separate charges: a Basic Charge, which is a flat monthly fee; an Energy Charge, which is a fee calculated based on the amount of power used by the customer in the billing month; and a Demand Charge, which is a fee calculated based on the most amount of power that the customer needed at the customer's peak power consumption over a 15-minute period. ECF No. 37-6 at 4-5. The following chart shows the increase in electricity prices that Blocktree must pay as RS-17 is incrementally implemented:
*1113RS-7 RS-17B (April RS-17B (April RS-17B (April 2019) 2020) 2021) Basic Charge $148.32/month $500/month $750/month $1,000/month Energy Charge $0.02100 per $0.02219 per $0.02465 per $0.03518 per kWh for the firs kWh kWh kWh 50,000 kWh; $0.01875 per kWh thereafter Demand $4.96/kW $8.00/kW $19.00/kW $30.00/kW Charge
Id. at 113. According to Blocktree, once RS-17 is fully implemented, their electricity expenses will increase between 295% and 400%. ECF Nos. 26-31; 36-1.
The Miners' Objections to the Evolving Industry Classification and RS-17
Throughout the development and implementation of the evolving industry class and RS-17, Blocktree voiced its objections. Blocktree submitted written comments to the District, arguing that the classification was unnecessary and that cryptocurrency miners should not be placed within that classification. ECF No. 37-6 at 99-106. They also appeared at several public presentations to voice their objections to RS-17. Id. at 16-18. Blocktree argued that the District developed the evolving industries classification and RS-17 based on misconceptions and misunderstandings about the cryptocurrency mining industry. Id. at 99-106. Blocktree also voiced concerns that the District was using the evolving industries classification and RS-17 to discriminate against cryptocurrency miners based on public opposition to the mining operations. See ECF No. 32-1 at 389-393.
After RS-17 was implemented and cryptocurrency mining was classified as an evolving industry, Blocktree filed the present lawsuit against the District. ECF No. 1. Blocktree claims that the District violated the dormant Commerce Clause, the Due Process Clauses of the United States and Washington State Constitutions, the Federal Power Act, Washington's utility laws, the District's own internal policies, and the Washington State Constitution's Privileges and Immunities Clause. Id. at 37-47.
In the present Motion for Preliminary Injunction, Blocktree asks this Court to enjoin the implementation of RS-17, set to begin on April 1, 2019, throughout the litigation. ECF No. 25. Blocktree argues that they are likely to succeed on the merits of their claims. Id. at 21-35. Blocktree also argues that they will suffer irreparable harm because RS-17 will raise their power costs sufficiently to cause them to go bankrupt; that the equities are in their favor; and that a preliminary injunction will further the public interest. Id. at 35-40.
LEGAL STANDARD
To succeed in securing a preliminary injunction, the moving party must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In the Ninth Circuit, courts weigh these factors "on a sliding scale, such that where there are only serious questions going to the merits-that is, less than a likelihood of success on the *1114merits-a preliminary injunction may still issue so long as the balance of hardships tips sharply in the plaintiff's favor and the other two factors are satisfied." Short v. Brown , 893 F.3d 671, 675 (9th Cir. 2018) (internal quotations omitted) (emphasis in original).
As with any equitable relief, a preliminary injunction or temporary restraining order generally is not appropriate where adequate legal remedies are available. See Weinberger v. Romero-Barcelo , 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) ("The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies."). A preliminary injunction is an "extraordinary and drastic remedy" that may be granted only upon a "clear showing" that the movant is entitled to such relief. Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) ; see also Nat'l Steel Car, Ltd. v. Canadian P. Ry., Ltd. , 357 F.3d 1319, 1324 (Fed. Cir. 2004) ("A preliminary injunction is a drastic and extraordinary remedy that is not to be routinely granted.") (internal quotation omitted).
DISCUSSION
Likelihood of Success on the Merits
Blocktree argues that they are likely to succeed with three different claims against the District. First, they argue that RS-17 violates both Washington State and federal law because it discriminates against cryptocurrency miners. ECF No. 25 at 21. Second, they argue that the process by which the District implemented RS-17 and determined that cryptocurrency mining was an "Evolving Industry" violated Blocktree's due process rights. Id. at 29. Third, Blocktree argues that RS-17 violates the Privileges and Immunities Clause of the Washington State Constitution. Id. at 33.
Washington Public Utility Rate-Setting Laws
The parties dispute whether Blocktree is likely to succeed on the merits of their rate discrimination claim under Washington law. ECF No. 25 at 21; ECF No. 37 at 17.
The District is a municipal corporation established pursuant to Washington statutes. Wash. Rev. Code § 54.04.020. Municipal corporations are limited in powers "to those necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation[s]." Port of Seattle v. Wash. Utils. And Transp. Comm'n , 92 Wash.2d 789, 597 P.2d 383, 386 (1979). A municipal corporation may not act contrary to express statutory or constitutional limitations. City of Tacoma v. Taxpayers of City of Tacoma , 743 P.2d 793, 801 (Wash. 1987). If a utility operates within its statutory and constitutional boundaries, judicial review of a utility's action is limited to whether the action was arbitrary, capricious, or unreasonable. Id. An action is arbitrary or capricious when it is "willful and unreasoning and taken without regard to the attending facts or circumstances." Hillis v. State Dep't of Ecology , 131 Wash.2d 373, 932 P.2d 139, 144 (1997). Further, an action is arbitrary and capricious when "there is no support in the record for the action." Dorsten v. Port of Skagit Cty. , 32 Wash.App. 785, 650 P.2d 220, 224 (1982).
As a municipal corporation, the District retains the "full and exclusive authority to sell and regulate and control the use, distribution, rates, services, and price" of providing electricity to inhabitants of the District. Wash. Rev. Code § 54.16.040. Those rates and charges must be fair and nondiscriminatory.
*1115Wash. Rev. Code § 54.24.080(1).
Blocktree presented six different arguments as to why RS-17 violates Washington's utility laws. ECF No. 25 at 21. First, they argue that the District staff's ability to classify a group of customers as an "evolving industry" violates the text of section 54.24.080(1). Id. at 24-25. According to Blocktree, the District staff's determination that an industry qualifies as an "evolving industry" for the purposes of imposing RS-17 amounts to an unconstitutional delegation of lawmaking authority to the staff. ECF No. 25 at 25. The District argues that they have "broad authority" to make decisions on ratemaking. ECF No. 37 at 17-18.
In Washington, legislative power may be delegated to other governing bodies if (1) the legislature provides standards or guidelines which define, in general terms, what is being delegated and what body holds the delegated authority; and (2) procedural safeguards exist to prevent arbitrary action or abuse of discretionary power by the body receiving the delegation. Barry & Barry, Inc. v. State Dep't of Motor Vehicles , 81 Wash.2d 155, 500 P.2d 540, 542-43 (1972). The Barry test was first formulated to prevent abuse of delegation by unelected executive branch officials. See id. The Barry test equally applies to public utility commissions. Earle M. Jorgensen Co. v. City of Seattle , 99 Wash.2d 861, 665 P.2d 1328, 1333 (1983).
Blocktree argues that they are likely to succeed on both prongs of the Barry test. ECF No. 25 at 24-25. Under the first prong, Blocktree argues that section 54.24.080(1) delegates the authority to set rates to the District, rather than the District's staff, and that the District failed to follow the statutory directives when cryptocurrency mining was classified as an evolving industry. Id. Under the second prong, Blocktree argues that their placement into RS-17 as an evolving industry lacked procedural safeguards intended to control arbitrary action. Id.
Regarding the first prong of the Barry test, section 54.24.080(1) reads as follows:
The commission of each district which shall have revenue obligations outstanding shall have the power and shall be required to establish, maintain, and collect rates or charges for electric energy and water and other services, facilities, and commodities sold, furnished, or supplied by the district.
Wash. Rev. Code § 54.24.080(1).
While a significant amount of work was done by the District's hired staff in developing and implementing RS-17, the decisions to create and adopt the rate schedule were ultimately made by the Commissioners. After a public presentation by the staff to the Commissioners, the Commissioners directed the staff to develop an evolving industry classification and RS-17. ECF No. 37-6 at 75 (Resolution No. 8885).
The Commissioners later officially adopted and implemented RS-17 by unanimously passing Resolution No. 8891. Id. at 111. The Commission knew that cryptocurrency miners would be placed in RS-17, because RS-17 was the solution to the perceived problems presented by the cryptocurrency mining industry. See ECF No. 32-1 at 457. The Commissioners used their power to establish rates and charges for electric energy supplied by the District to address a perceived problem. Wash. Rev. Code § 54.24.080(1). Therefore, the Court finds that Blocktree is not likely to succeed in proving that the District acted beyond its statutory authority in adopting RS-17 and classifying cryptocurrency mining as an evolving industry.
Regarding the second prong of the Barry test, Blocktree argues that no *1116procedural safeguards prevented the District staff from arbitrarily classifying cryptocurrency mining as an "evolving industry" under RS-17. ECF No. 25 at 24-25. Washington courts have upheld ratemaking procedures that contain sufficient safeguards protecting those that the new rate might affect, including statutory directives setting standards for the rates or regulating utility financing; judicial review of rates that could be discriminatory or unreasonable; and the right to public comment. See King Cty. Water Dist. No. 54 v. King Cty. Boundary Review Bd. , 87 Wash.2d 536, 554 P.2d 1060, 1066-67 (1976). If the delegating statute provides no procedural safeguards, procedural safeguards may be provided by the administrative body instead. Earle M. Jorgensen Co. , 665 P.2d at 1333.
The only standard that Washington's electricity ratemaking laws provide is that electricity rates must be fair and nondiscriminatory; they impose no procedural requirements. See Wash. Rev. Code § 54.24.080(1). Nonetheless, Blocktree was provided several procedural safeguards, preventing their classification as an evolving industry from being arbitrary. First, judicial review of the rates is available as evidenced by this ongoing lawsuit. Second, Blocktree participated in the public comment sessions during the development of RS-17. ECF No. 37-6 at 60-73 (first public presentation on April 24, 2018); 77-88 (second public presentation on June 26, 2018); 99-106 (Cryptocurrency miners' written comments from July and August of 2018).
While Blocktree may disagree with the outcome of these procedures, their disagreement does not make the District's decision to classify cryptocurrency mining as an evolving industry an arbitrary decision. The procedural safeguards here are adequate and prevent arbitrary action by the District. King Cty. , 554 P.2d at 1066-67. Therefore, Blocktree's challenge under the second prong of the Barry test is not likely to succeed on the merits.
Blocktree's second argument on why they are likely to succeed on the merits of their Washington utility law claim is that RS-17 is discriminatory because it treats cryptocurrency miners differently from customers with similar service requirements and risk factors, such as large data centers, polysilicon manufacturers, or agricultural businesses. ECF No. 25 at 25. The District argues that Blocktree fails to recognize the unique features of the cryptocurrency industry that differentiates miners from other customers. ECF No. 37 at 24.
Any analysis of utility rates under Washington law starts with the presumption that the rates are reasonable, and courts will only overturn the rates if they are excessive and disproportionate to the services rendered or arbitrary and capricious. Lincoln Shiloh Assocs., Ltd. v. Mukilteo Water Dist. , 45 Wash.App. 123, 724 P.2d 1083, 1087 (1986). Those challenging the rates must prove that the rates are unreasonable. Id.
Blocktree submits, through an expert witness, that "[b]ased on actual consumption characteristics, the segregation of Evolving Industry customers into a separate rate class is not well justified." ECF No. 26 at 13. Mr. Kemp identifies other industries, such as data centers, polysilicon manufacturers, and agribusinesses, that display similar regulatory, business, and consumption risks that would justify classifying them as "evolving industries." Id. at 18. According to Blocktree, the District's failure to classify these other industries as evolving industries proves that RS-17 is discriminatory. ECF No. 25 at 25.
Blocktree fails to recognize one of the main aspects of the District's justification *1117for classifying cryptocurrency mining as an evolving industry: the sudden influx of interest from cryptocurrency mining companies in the District's area of service. According to the District, since the summer of 2017, they have received 125 requests for service totaling 2,000 MW of new load, 75% of the new load being from cryptocurrency mining operations. ECF Nos. 32-1 at 457; 37-6 at 7-8. Further, the District states that they received actual applications from cryptocurrency miners requesting 313 MWs of power since the summer of 2017. ECF No. 32-1 at 549.
The District identified the unique traits of the cryptocurrency mining industry that distinguishes the industry from others, including that its operations require few natural resources and employees, making their operations easy to transfer from one location to another. ECF No. 32-1 at 458. Blocktree disputes the mobility of its industry, arguing that they have made significant investments in Grant County that are not mobile. ECF Nos. 41 at 13; 44 at 3-4; 45-49. The District also argued that the volatility of cryptocurrency prices exposes the District to the risk of unpaid power bills by Blocktree and other cryptocurrency mining operations. ECF No. 32-1 at 659. Further, the District has stated that RS-17 also will apply to future industries that present the same traits as cryptocurrency mining. ECF No. 37-6 at 19-20.
Blocktree's arguments can be summarized as picking and choosing traits from different industries and combining them together, resulting in the District's discrimination against them. See ECF No. 26 at 13-18 (Mr. Kemp's conclusions); ECF No. 42 at 61 (price volatility chart of polysilicon). However, the Court finds that combining the traits from several different industries together does not show, at this point in the litigation, a likelihood that the District intentionally discriminated against Blocktree or that their decision to classify cryptocurrency mining as an evolving industry was made in the absence of evidence. Blocktree ignores the main reason motivating the District's classification decision: the sudden influx of interest from cryptocurrency miners in the District's power services. ECF No. 32-1 at 457. The cryptocurrency industry's sudden interest in Grant County and the unique traits of the industry, all of which were considered by the District in creating and implementing RS-17, show that Blocktree has failed to overcome the presumptive reasonableness of RS-17. See Lincoln Shiloh , 724 P.2d at 1087. The Court finds that Blocktree is not likely to succeed on their second utility rate statutory argument.
Blocktree's third argument under Washington's ratemaking laws is that the District did not rely on "scientific statistical analysis" to create RS-17, and instead relied on subjective determinations. ECF No. 25 at 26. Blocktree argues that rates must be established with "scientific statistical analysis" based on Lincoln Shiloh , 724 P.2d at 1087. In that case, the Washington Court of Appeals held that a utility fee was reasonable in part because it was generated with "scientific statistical analysis." Id. However, the court did not hold that "[d]ifferent rates can be charged to different customer classes only if 'scientific statistical analysis' shows substantial differences in the costs of serving those different customer groups," as Blocktree argues here. ECF No. 25 at 23. While scientific statistical analysis could be one way to show that the charged rates are reasonable, Lincoln Shiloh does not state that a utility district is required to use scientific statistical analysis to prove the reasonableness of charged rates. Lincoln Shiloh , 724 P.2d at 1087. This argument also implies that the burden is on the District to prove that its rate is reasonable by showing *1118that the rate is based on scientific statistical analysis. However, as Lincoln Shiloh holds, the burden falls on Blocktree to prove that they are likely to succeed in proving that the rate is unreasonable. See Lincoln Shiloh , 724 P.2d at 1087. Therefore, the Court finds that Blocktree's third argument as to why RS-17 violates Washington rate-setting laws is not likely to succeed on the merits.
Blocktree's fourth argument is that RS-17 is not cost-based. ECF No. 25 at 26. According to Blocktree, because RS-17 is not cost-based, the rate is unreasonable because it charges costs that are "excessive and disproportionate to the services rendered." Id. ; Teter v. Clark Cty. , 104 Wash.2d 227, 704 P.2d 1171, 1179 (1985). The District argues that the costs imposed on RS-17 customers offset the additional costs that would be incurred by the cryptocurrency industry's power demands on the District. ECF No. 37 at 23.
The concept of ratemaking is discriminatory by design, as the process involves classifying customers into different groups and charging those groups different prices based on the characteristics of the customers in each group. Nonetheless, Washington law requires the rates and charges for electrical services to be fair and nondiscriminatory. Wash. Rev. Code § 54.24.080(1). Recognizing this dichotomy, Washington courts have held that "[d]ifferent classes of customers may be charged different rates as long as the classifications themselves are reasonable." Hillis Homes, Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cty. , 105 Wash.2d 288, 714 P.2d 1163, 1170 (1986). "Absolute uniformity in rates is not required." Teter , 704 P.2d at 1179. If the utility district can show "how and why the rate was devised," then the rate is considered reasonable, nondiscriminatory, and not arbitrary. Id. at 1180. Further, if the increase in the charges for one group pays for improvements necessitated by that new group, the rates are not discriminatory. Lincoln Shiloh , 724 P.2d at 1087. "[O]nly a practical basis for the rates is required, not mathematical precision." Teter , 704 P.2d at 1179 (emphasis in original).
Blocktree argues that customers served under RS-17 in the District pay 31% above the cost of providing electricity to the RS-17 customers, whereas residential customers pay 30% below their cost of service, which works as a "transfer of wealth from Plaintiffs to Grant's favored 'traditional' customers." ECF No. 25 at 26; ECF No. 26 at 21. According to Blocktree, the 31% premium can be attributed to an "adder," or an additional charge for a specific purpose, to pay for an upgraded transmission system by 2021, an extra charge for the extra wear on the District's distribution systems caused by cryptocurrency miners, and an extra charge to protect the District from abandoned facilities if the cryptocurrency miners cease operations. ECF No. 25 at 27-28.
The District argues that RS-17 is based on both direct and indirect costs to the District in servicing cryptocurrency miners. ECF No. 37 at 25. In calculating the rates charged under RS-17, the District assumed 200 MW of new load from cryptocurrency miners, which is far less than the potential load of the interested miners (1,500 MW) or miners that had actually applied for services from the District (313 MW). ECF Nos. 32-1 at 549; 37-6 at 16. The District then calculated RS-17's rate based on the effects estimated from 200 MW of new load, including: a need to upgrade transmission systems by 2021 instead of 2026; projected wear on the distribution system from the new customers; and the risks involved in losing a cryptocurrency mining customer without warning. ECF No. 37-2 at 5.
*1119While Blocktree disagrees with the method with which RS-17 was calculated, the District has provided justifications for every element of RS-17. The District argues that the transmission adder is necessary because the current load of cryptocurrency customers, along with the projected new 200 MW of load, will require an equipment upgrade quicker than the previously-planned upgrade in 2026. ECF Nos. 37-2 at 7; 37-4 at 7; 37-5 at 14-15. Further, customers charged under RS-17 are only paying a portion of the costs for the new equipment and are not subsidizing the new equipment for the benefit of the entire district. ECF No. 37-5 at 7. While it is true that cryptocurrency miners' current electricity load has not caused wear on the District's equipment yet, RS-17 was calculated based on the costs associated with the projected wear from an increased 200 MW of load from cryptocurrency miners, including additional equipment and crew. ECF No. 32-1 at 518 (excerpt from public presentation explaining that a portion of RS-17 payments "[a]llocates additional equipment and crew time to deal with overheating and additional wear.") and 602 ("Have not experienced residential equipment failure due to cryptocurrency mining."). Additionally, the District states that the upgrades would not be needed if they did not receive a large amount of interest from the cryptocurrency mining field, necessitating the extra charge that protects the rest of the District's customers from paying for upgrades that they do not need. ECF Nos. 37-2 at 8-9; Lincoln Shiloh , 724 P.2d at 1087 ("If [additional] charges pay only for those improvements necessitated by new customers they are not discriminatory."). While Blocktree may argue that calculating a utility rate based on projected costs is unsound ratemaking, Blocktree has not pointed to any case law or statute that prevents this practice. ECF No. 26 at 26.
The District's calculations all condense into one simple justification: but for the increased interest from cryptocurrency miners in the District, the future upgrades and protection against abandoned facilities would not be necessary. Based on the evidence provided to the Court, the Court cannot conclude at this time that Blocktree is likely to succeed in showing that RS-17 is "excessive and disproportionate to the services rendered." Teter , 704 P.2d at 1179. Blocktree has not overcome the presumption of reasonableness given to utility rates in Washington, and the District has offered ample evidence of how and why the rates were devised. Id. Accordingly, the Court finds that Blocktree has not shown that it is likely to succeed on their cost-based arguments under Washington's utility laws.
Blocktree's fifth argument is that RS-17 improperly ascribes costs to cryptocurrency miners. ECF No. 25 at 28. Specifically, Blocktree argues that they are not responsible for the increased costs driving RS-17's creation because they have been the District's customers long before the sudden influx in cryptocurrency mining companies requesting access to the District's power. Id. The District considered "grandfathering" Blocktree into its electricity rates under RS-7 and imposing RS-17 only on new cryptocurrency mining companies but concluded that the grandfathering would be "legally untenable." ECF No. 32-1 at 537.
The District's initial conclusion that grandfathering Blocktree into RS-7 would be "legally untenable" has merit. "The rates for each class must be internally uniform, but different classes may be charged different rates." Teter , 704 P.2d at 1179. "In considering the validity of [a utility rate], we must first consider the question of whether there is a proper classification *1120of customers and areas. The test is whether the city had a reasonable basis for the classification and whether the customers within the class are treated equally." Silver Shores v. City of Everett, 87 Wash.2d 618, 555 P.2d 993, 996 (1976). If the District excluded Blocktree and other Grant County cryptocurrency miners from the emerging industries class subject to RS-17's rates, but subjected new cryptocurrency mining companies to RS-17, the District likely would violate the requirement that customers within each rate class be treated equally. See Teter , 704 P.2d at 1179. Additionally, as will be discussed further in this opinion, the District could have subjected itself to potential liability under Washington's Privileges and Immunities Clause if the District gave preferential treatment to Blocktree over new mining companies. Blocktree essentially argues that the District's alleged discrimination against Blocktree would be cured if the District placed Blocktree on the side benefited by the alleged discrimination. The Court finds that Blocktree's fifth argument is not likely to succeed on the merits.
Blocktree's sixth and final argument under Washington utility laws is that RS-17 is arbitrary because it violates "well-accepted utility ratemaking principles of gradualism, avoidance of rate shock, and predictability." ECF No. 25 at 28. They argue that the District is required to follow these principles because of the District's Resolution No. 8768, passed in May of 2015, which states that the District's rate schedules should follow these principles. Id. ; ECF No. 32-1 at 616.
In support of their sixth argument, Blocktree relies on a case from Division II of the Washington Court of Appeals that held that the Pierce County Council acted arbitrarily and capriciously because it "did not follow its own procedures and did not disagree with any findings [from the proceedings below]." J.L. Storedahl & Sons, Inc. v. Clark Cty. , 143 Wash.App. 920, 180 P.3d 848, 854 (2008). But that case turned on a county council's application of the county code as opposed to a Resolution that was subject to change at any time by a vote of the commissioners. Id. Further, the District argues that the principles of gradualism, rate shock avoidance, and predictability only apply when a customer's rates are adjusted within the same class, rather than when a customer is moved from one class to another, as in this case. ECF No. 37-5 at 6.
While the Resolution does state that the District should avoid rate shock when it adjusts its rates, the Resolution only decrees that the District should "limit impact to customers." ECF No. 32-1 at 616. Blocktree's rates will rise as a result of RS-17's implementation, but Blocktree cannot show at this time that the District did not attempt to "limit impact to customers" when it calculated and approved RS-17. Therefore, Blocktree has not shown a likelihood of success on the merits of this sixth argument.
Based on the Court's review of the evidence, Blocktree has not made a "clear showing" that they are likely to succeed on the merits of their Washington utility law claim. Winter , 555 U.S. at 20, 129 S.Ct. 365 ; Mazurek , 520 U.S. at 972, 117 S.Ct. 1865. Blocktree is not likely to overcome the presumptive reasonableness of RS-17. Therefore, Blocktree has failed to show that it is likely to succeed in proving that the District acted arbitrarily or capriciously or discriminated against them and other cryptocurrency miners by implementing RS-17. The Court concludes that Blocktree is not likely to succeed on the merits of its Washington utility laws claim.
Federal Power Act
Blocktree argues that the District also violated the Federal Power Act, *112116 U.S.C. § 813, because RS-17 is unreasonable and discriminatory. ECF No. 25 at 23-24. The District argues that the Federal Power Act does not apply to them. ECF No. 37 at 26.
The Federal Power Act provides that the "rates charged and the service rendered" for power provided by municipalities subject to the Federal Power Act's jurisdiction "shall be reasonable, nondiscriminatory, and just to the customer and all unreasonable discriminatory and unjust rates or services are prohibited and declared to be unlawful." 16 U.S.C. § 813. However, the Federal Energy Regulatory Commission previously concluded that "Sections 19 and 20 [of the Federal Power Act] do not apply to [the District]" because Washington expressly granted Grant County self-regulatory authority over electricity ratemaking. The Yakima Nation v. Pub. Util. Dist. No. 2 of Grant Cty., Wash. , 101 FERC 61793, 61796 (F.E.R.C. 2002). The nondiscrimination provision of the Federal Power Act, 16 U.S.C. § 813, is a part of Section 20, so it does not apply to the District. 16 U.S.C. § 813.
Even if section 813 applied to the District, the Court finds that the discrimination analysis under the Federal Power Act is not substantially different from the discrimination analysis under Washington's utility rate laws. Therefore, the Court finds that Blocktree is not likely to succeed on the merits of its Federal Power Act claim for the reasons stated in the above section.
Due Process
The parties dispute whether Blocktree is likely to succeed on the merits of its due process claims under both the United States and Washington Constitutions. ECF No. 25 at 29; ECF No. 37 at 26.
Federal Due Process
The Fourteenth Amendment to the United States Constitution prohibits the deprivation of "life, liberty, or property without due process of law." U.S. Const. amend. XIV § 1. To succeed on a federal procedural due process claim, a party must prove two elements. First, a person must show that he or she was deprived of a protected liberty or property interest. ASSE Int'l, Inc. v. Kerry , 803 F.3d 1059, 1073 (9th Cir. 2015). Second, the person must prove that the deprivation of the protected interest was caused by a denial of adequate procedural protections. Id.
Before due process rights attach, a person must show that the deprivation occurred as a result of an adjudicatory process rather than a legislative process. See Harris v. Cty. of Riverside , 904 F.2d 497, 501 (9th Cir. 1990). If the matter is one in which "all are equally concerned," the matter is a legislative process and due process rights do not attach. Bi-Metallic Inv. Co. v. State Bd. of Equalization , 239 U.S. 441, 445, 36 S.Ct. 141, 60 L.Ed. 372 (1915). If the matter is one in which a "relatively small number of persons [are] concerned, who [are] exceptionally affected, in each case upon individual grounds," then the process is adjudicatory and due process rights attach. Id. at 446, 36 S.Ct. 141 ; see also Londoner v. City & Cty. of Denver , 210 U.S. 373, 385-86, 28 S.Ct. 708, 52 L.Ed. 1103 (1908) (holding that a small number of people who were disproportionately affected by a tax were entitled to a hearing before that tax was enacted).
The parties dispute whether the process by which RS-17 was enacted was legislative or adjudicatory under federal due process standards. ECF No. 25 at 32; ECF No. 37 at 27. Blocktree argues that the process was adjudicatory. ECF No. 25 at 32. When RS-17 is implemented on April 1, a select number of the District's customers *1122will be affected by the heightened rate, and the District weighed three subjective factors to determine whether cryptocurrency mining was an evolving industry. However, the District argues that the process was legislative. ECF No. 37 at 28. RS-17 affects the entire cryptocurrency industry, not just Blocktree, and RS-17 potentially will affect other new and unproven industries in the future. The Court finds that the disposition of this motion does not turn on this difficult determination, so the Court assumes arguendo that cryptocurrency mining's classification as an evolving industry was adjudicatory.
Blocktree claims that it has two protected property interests that are deprived by the District's decision to implement RS-17. ECF No. 25 at 29. First, they argue that their "tens of millions of dollars" that they have invested in their mining operations in Grant County will be rendered useless by RS-17's "crippling rates." Id. at 29-30. Second, they argue that they have a protected interest in their current power rate. Id. at 30.
"[T]he range of interests protected by procedural due process is not infinite." Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 570, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Accordingly, to have a property interest in something, a person "must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577, 92 S.Ct. 2701. Property interests are created by "existing rules or understandings that stem from an independent source such as state law." Id.
Blocktree claims that it has existing property rights in its investments in Grant County. However, their investments were not created by "existing rules or understandings that stem from an independent source such as state law." Roth , 408 U.S. at 577, 92 S.Ct. 2701. Rather, the investments were the result of Blocktree's own decision making. Plaintiffs' theory would require that any time a government entity causes a person's investment to become less valuable, that person would be entitled to notice and an opportunity for a hearing before the devaluation occurs. This would essentially make anything of monetary value a property interest protected by the due process clause, a conclusion foreclosed by Supreme Court precedent. Id. The Court finds that Blocktree is not likely to succeed in proving that it has a protected property interest arising from its investments alone.
Blocktree additionally argues that it has a protected property interest in its existing utility rate, RS-7. ECF No. 41 at 16. At oral argument, counsel for Blocktree pointed the Court to a case from the Mississippi Supreme Court that holds that a person has a right to notice and a hearing when the person is subjected to a "confiscatory" utility rate. In that case, the Mississippi Supreme Court held that the Mississippi Power Company violated Mississippi law by failing to give proper notice of the rate increase to the ratepayers. Miss. Power Co., Inc. v. Miss. Pub. Serv. Comm'n , 168 So. 3d 905, 913-15 (Miss. 2015). However, the Mississippi Supreme Court decided the issue in that case without an analysis of whether a certain utility rate is a property interest protected by the Due Process Clause. See id. at 913. In fact, that Court held that "ratepayers have no property interest in a certain rate. " Id. (emphasis in original).2 The United States *1123Supreme Court case on which the Mississippi Supreme Court relied, Memphis Light, Gas & Water Div. v. Craft , held that a ratepayer has a due process right to present objections to utility bills before the cancelation of services, not that a ratepayer has a property interest in a particular utility rate. See Memphis Light, Gas & Water Div. v. Craft , 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). Neither the Mississippi Supreme Court case, nor the authority on which the Mississippi Supreme Court relied, holds that a ratepayer has a protected property interest in a certain utility rate.
The Court declines to analyze whether RS-17 is a "confiscatory" rate, because even if it was, there has been no citation to Washington State or Federal case law holding that Blocktree would have a protected property interest in any non-confiscatory rate. Without an "independent source" protecting Blocktree's' rates charged under RS-7, the Court finds that Blocktree is not likely to succeed in proving that the District deprived them of a protected property interest by charging it under RS-17.3 Roth , 408 U.S. at 577, 92 S.Ct. 2701.
Washington Due Process
The Washington State Constitution prohibits any deprivation of "life, liberty, or property, without due process of law." Wash. Const. Art. I § 3. Similar to a federal due process claim, a party must first show that the process through which its alleged right was deprived was adjudicatory rather than legislative, as due process rights attach to the former but not the latter. Earle M. Jorgensen Co. , 665 P.2d at 1330-31. The Washington Supreme Court has "consistently held [that] rate setting is a legislative act, even with respect to rate allocation and design." Id. at 1332. Because ratemaking is legislative, there is no right to notice or an opportunity to comment. Id. "In reviewing ratemaking decisions of legislative bodies, we have looked only to whether the rates were fair (i.e. , reasonable, nondiscriminatory, not arbitrary or capricious)." Id. Because the Court already has found that Blocktree is not likely to succeed on the merits of its discriminatory and arbitrary rates claim, Blocktree is not likely to succeed on the merits of its Washington due process claim.
Privileges and Immunities Clause of the Washington Constitution
The parties dispute whether Blocktree is likely to succeed on the merits of their Washington State privileges and immunities challenge to RS-17. ECF No. 25 at 33; ECF No. 37 at 29.
In Washington, "[n]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." Wash. Const. Art. I § 12. The Supreme Court of Washington has construed article I section 12 as "substantially similar" to the federal equal protection clause, but at certain times it "differed from and was more protective than the federal equal protection clause and required a very different analysis."
*1124Schroeder v. Weighall , 179 Wash.2d 566, 316 P.3d 482, 485 (2014). For example, Washington's privileges and immunities clause prohibits so-called special interest legislation, which are laws that confer a benefit to a privileged or influential minority. Grant Cty. Fire Prot. Dist. No. 5 v. City of Moses Lake , 145 Wash.2d 702, 42 P.3d 394, 408 (2002), overruled on other grounds.
Washington courts use a two-part test to determine whether a legislative act violates Washington's privileges and immunities clause. First, the court determines whether the law in question involves a privilege or immunity. Ass'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd. , 182 Wash.2d 342, 340 P.3d 849, 857-58 (2015). Second, the court determines whether the legislative body had a "reasonable ground" for granting the privilege or immunity. Id.
Blocktree claims that RS-17 implicates two privileges: the right to carry on a business and the right to nondiscriminatory utility rates. ECF No. 25 at 33-34. Further, Blocktree argues that there are no reasonable grounds justifying the District's differentiation between Blocktree and other similarly situated "politically favored" customers. Id. at 34.
The privileges and immunities clause applies to "fundamental rights which belong to the citizens of the state by reason of such citizenship." State v. Vance , 29 Wash. 435, 70 P. 34, 41 (1902). One long-recognized fundamental right in Washington is the right to carry on a business. Id. As it relates to the right to carry on a business, a privilege is "an exception from a regulatory law that benefits certain businesses at the expense of others." Ass'n of Wash. Spirits & Wine Distribs. , 340 P.3d at 858. For example, the Washington Supreme Court struck down a municipal ordinance that required non-resident photographers to pay substantial licensing fees and prohibited photography solicitation, while exempting resident photographers from the licensing fees. Ralph v. City of Wenatchee , 34 Wash.2d 638, 209 P.2d 270, 272-74 (1949).
But Washington courts have been hesitant to broadly apply the right to carry on a business in any legislative act that happens to harm a single aspect of a business. In one instance, the Washington Supreme Court held that a prohibition on smoking in a place of employment did not violate the right to carry on a business. Am. Legion Post #149 v. Wash. State Dep't of Health , 164 Wash.2d 570, 192 P.3d 306, 325-26 (2008). In another, the Washington Supreme Court held that a licensing fee scheme for vendors of liquor and spirits did not implicate the right to carry on a business. Ass'n of Wash. Spirits & Wine Distribs. , 340 P.3d at 859. The key inquiry for determining whether the right to carry on a business is implicated by an act is whether the act "unfairly discriminate[s] against a class of businesses to the benefit of another class of the same businesses." Id. at 859.
Blocktree argues that the evolving industry classification and RS-17's rates will reduce the profits of running a cryptocurrency mining operation in the District. However, as Am. Legion and Spirits & Wine both show, mere harm to a business's profits caused by a change in the laws does not implicate the right to carry on a business. Am. Legion , 192 P.3d at 326 ; Ass'n of Wash. Spirits & Wine Distribs. , 340 P.3d at 859. A violation of the right to carry on a business is only implicated by government actions that "unfairly discriminate against a class of businesses to the benefit of another class of the same businesses ," such as what happened in Ralph , when city ordinances discriminated against non-city-resident photographers to *1125the benefit of resident photographers.4 Ass'n of Wash. Spirits & Wine Distribs. , 340 P.3d at 859 (emphasis added); Ralph , 209 P.2d at 272-74. Blocktree's right to carry on a business allegations are more like the allegations in Spirits & Wine or Am. Legion rather than Ralph , because Blocktree essentially alleges that the District violated its right to carry on a business of its choosing, rather than alleging discrimination against a class of businesses to the benefit of another class of the same business. The Court finds that Blocktree has not shown a likelihood of success of proving a violation of the right to carry on a business.
The other fundamental right that Blocktree claims RS-17 violates is the fundamental right to nondiscriminatory utility rates. ECF No. 25 at 33-34. However, no Washington court has found that such a fundamental right exists. See Faxe v. City of Grandview , 48 Wash.2d 342, 294 P.2d 402, 495 (1956) ("We will therefore assume, without deciding, that such a duty exists by virtue of Art. I, § 12, of the state constitution."); Geneva Water Corp. v. City of Bellingham , 12 Wash.App. 856, 532 P.2d 1156, 1160 (1975) (quoting the same passage from Faxe ). Even if there is a fundamental right to a nondiscriminatory utility rate protected by the privileges and immunities clause, the Court already concluded that Blocktree is not likely to succeed in proving that RS-17 is unlawfully discriminatory. Therefore, the Court finds that Blocktree is not likely to succeed on the merits of their privileges and immunities claim.
Even if Blocktree is successful in showing a violated fundamental right, it still would need to prove the second element of a privileges and immunities claim, which is that a reasonable ground does not exist to grant the privilege or immunity. Ass'n of Wash. Spirits & Wine Distribs. , 340 P.3d at 857-58. Under the reasonable ground test, "the court will scrutinize the legislative distinction to determine whether it in fact serves the legislature's stated goal." Schroeder , 316 P.3d at 486 (emphasis in original). This standard is more exacting than rational basis review. Id.
As explained above, the District faced legitimate concerns over the amount of interest that cryptocurrency mining companies expressed in the District's low power costs. Considering these concerns, the District developed the evolving industry classification and RS-17 to ensure that the electricity needs of all of its customers would be fulfilled. Specifically, RS-17 helps the District manage the high level of interest from the cryptocurrency field and prepare its infrastructure for any sudden influx of new cryptocurrency businesses. There is significant evidence that The District did not implement RS-17 "in an arbitrary selection," as Blocktree claims. The District developed and implemented RS-17 over a long period of time from the summer of 2017 until its approval on August 28, 2018, with several opportunities for public comment and input. State ex rel. Bacich v. Huse , 187 Wash. 75, 59 P.2d 1101, 1105 (1936), overruled on other grounds. Therefore, even if Blocktree can prove a violation of a fundamental right, the Court finds that Blocktree is not likely *1126to succeed on proving the second element of a privileges and immunities claim.
The Court finds that Blocktree is not likely to succeed on the merits of any of its claims presented in its motion for preliminary injunction. Additionally, Blocktree has not demonstrated serious questions on the merits of its claims.
Irreparable Harm
The parties dispute whether the implementation of RS-17 starting on April 1, 2019, will cause irreparable harm to Blocktree. ECF No. 25 at 35; ECF No. 37 at 31.
A plaintiff seeking a preliminary injunction must demonstrate that irreparable injury is likely in the absence of an injunction. Winter , 555 U.S. at 20, 129 S.Ct. 365. Monetary injury, alone, does not meet this standard. L.A. Mem'l Coliseum Comm'n v. Nat'l Football League , 634 F.2d 1197, 1202 (9th Cir. 1980). A legitimate threat that a company might become bankrupt or be driven out of business because of a plaintiff's action does show irreparable harm. Doran v. Salem Inn, Inc. , 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) ; Am. Passage Media Corp. v. Cass Commc'ns, Inc. , 750 F.2d 1470, 1474 (9th Cir. 1985). A mere possibility of harm, however, will not meet this standard. Enyart v. Nat'l Conference of Bar Exam'rs, Inc. , 630 F.3d 1153, 1165 (9th Cir. 2011).
Blocktree argues that the rate increases from RS-17 would render its operations "uneconomical" and force Blocktree to end its business in Grant County. ECF Nos. 27-31, 36-1. They state that they "might even be forced into bankruptcy" by such a rate increase. Id. Blocktree argues that RS-17's rate increases will increase their rates by anywhere between 295-400%; however, because RS-17 is being implemented over several years, Blocktree will not immediately feel the full effects of RS-17's rate increases. See ECF Nos. 27-31, 36-1, 37-6 at 113. Even if the rate increase occurred all at once, a mere possibility of bankruptcy does not meet the irreparable harm standard. Enyart , 630 F.3d at 1165. Therefore, the Court finds that Blocktree has failed to show that it will suffer irreparable harm if RS-17 is implemented.
Balance of Equities
The parties dispute whether the balance of equities weighs in Blocktree's favor. ECF No. 25 at 36; ECF No. 37 at 32.
Before granting an injunction, "courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter , 555 U.S. at 24, 129 S.Ct. 365 (internal quotations and citations omitted).
Here, Blocktree argues that the balance of equities tips in its favor because RS-17 will impose burdens on Plaintiffs but preventing RS-17's effects will not harm the District. ECF No. 25 at 36. The District argues that enjoining RS-17 will hamper the District's ability to collect revenues for utility bills in their district. ECF No. 37 at 32. Because some harm will occur to Blocktree immediately, the Court finds that this factor favors Blocktree.
Public Interest
The parties dispute whether an injunction would be in the public interest. ECF No. 25 at 37-38; ECF No. 37 at 33.
A plaintiff seeking a preliminary injunction must demonstrate that the public interest favors the injunction in light of the likely consequences. Hernandez v. Sessions , 872 F.3d 976, 996 (9th Cir. 2017). When constitutional rights are implicated, the public has an interest in ending the violation of those rights. Id.
*1127Blocktree argues that a preliminary injunction is in the public interest because it will remedy the District's constitutional and statutory violations. ECF No. 25 at 37-38. Further, Blocktree argues that, in absence of a preliminary injunction, they will have to relocate their operations and cease paying the District millions of dollars in revenue, which will trickle down to harm the District's other ratepayers. Id. The District argues that their actions underlying the claims in this case were taken in pursuit of the public interest by protecting the District's ability to provide service long-term, showing that the public interest favors their position. ECF No. 37 at 33.
While Blocktree might have to relocate their operations in response to RS-17's implementation, the Court finds that the balance of equities tips in the District's favor. The District, as a government entity, is serving the public by protecting the public's need for long-term power while addressing the immediate needs and concerns generated by the cryptocurrency's interest in Grant County. See ECF No. 32-1 at 387-403.
CONCLUSION
The Court recognizes the uniqueness of the factual scenario presented by this case. The Court's research did not find a case similar to the case at hand, in which a utility district implements a new rate schedule and rate classification through public comment and participation, but then classifies a group of customers thereafter using subjective factors. However, the Court's task in deciding whether to issue a preliminary injunction is to weigh the four Winter factors and determine whether Blocktree is likely to succeed on the merits of its claims; whether Blocktree will suffer irreparable harm absent an injunction; whether the equities tip in its favor; and whether an injunction would be in the public interest, based on the case law and standards currently available for the Court's consideration. Winter , 555 U.S. at 20, 129 S.Ct. 365.
The Court finds that Blocktree has failed to make a clear showing that it is likely to succeed on the merits of any of its claims. In addition, the Court finds that Blocktree has not shown that it will suffer an irreparable injury without the imposition of a preliminary injunction. Therefore, the Court denies Plaintiffs' motion for preliminary injunction.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs' Motion for Preliminary Injunction, ECF No. 25 , is DENIED .
IT IS SO ORDERED . The District Court Clerk is directed to enter this Order and provide copies to counsel.
The measuring unit "kW" refers to "kilowatt," which is used to measure power. A kilowatt is 1,000 watts (the basic measuring unit of power) and a megawatt ("MW") is 1,000 kilowatts or 1,000,000 watts. Billing rates are calculated using "kilowatt hours" ("kWh"), a unit for measuring power consumption. A device that consumes one kW of constantly-supplied power for one hour consumes one kWh. ECF No. 25 at 8. Outputs of power from electrical systems owned and operated by utility districts are calculated using average megawatts ("MWa"). Id.
Further, the Mississippi Supreme Court relied heavily on procedural requirements in Mississippi utility laws to conclude that the Mississippi Power Company denied ratepayers due process. See Miss. Power Co. , 168 So. 3d at 914 n.13 (citing Miss. Code Ann. §§ 77-3-13(3), 77-3-37(1) and (9) ).
Blocktree also argues that they were denied due process because they were denied an opportunity to be heard regarding whether they should be included in the "Evolving Industries" class. There may be merit to Blocktree's argument about being classified without being heard. However, at this point in the litigation, the Court finds that such an issue would not be dispositive.
As mentioned earlier, this line of cases explains why Blocktree's contention that it should have been "grandfathered in" to RS-7's rates is "legally untenable." Subjecting one class of cryptocurrency miners to the rates charged under RS-7 while subjecting another class of cryptocurrency miners to the rates charged under RS-17, based solely on when those miners established operations in the District, arguably would discriminate unfairly within the class of the same business. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1355333/ | 240 S.E.2d 503 (1978)
35 N.C. App. 135
BEECH MOUNTAIN PROPERTY OWNERS' ASSOCIATION
v.
Richard N. CURRENT and Rose B. Current.
BEECH MOUNTAIN PROPERTY OWNERS' ASSOCIATION
v.
Thomas MOORE, Jr., and George K. Cutter.
No. 7724DC101.
Court of Appeals of North Carolina.
January 24, 1978.
*505 Finger, Watson & di Santi by C. Banks Finger and Anthony S. di Santi, Boone, for plaintiff-appellant.
Smith, Moore, Smith, Schell & Hunter by David M. Moore, II, Greensboro, Hudson, Petree, Stockton, Stockton & Robinson by James H. Kelly, Jr., Winston-Salem, Thomas F. Moore, Jr., Charlotte and Charles E. Clement and Paul E. Miller, Jr., Boone, for defendant-appellees.
HEDRICK, Judge.
The substantive question raised on this appeal is whether the restrictions referred to above are enforceable. However, it is elementary that the substantive issues cannot be considered unless the party raising them has the capacity to do so. Bailey v. Light Co., 212 N.C. 768, 195 S.E. 64 (1938). Thus, the defendants' challenge to the plaintiff's standing to assert the claims herein demands our immediate attention.
Our Supreme Court has recognized on numerous occasions the general rule that "[a] restriction which is merely a personal covenant with the grantor does not run with the land and can be enforced by him only." Stegall v. Housing Authority, 278 N.C. 95, 100, 178 S.E.2d 824, 827 (1971). See also Webster, Real Estate Law in North Carolina, § 346(c) (1971). It is equally well-established that where an owner subdivides his land and sells it to various grantees, "`imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, . . . .'" Sedberry v. Parsons, 232 N.C. 707, 710, 62 S.E.2d 88, 90 (1950), quoting 26 C.J.S. Deeds § 167(2). The party claiming the benefit of a restriction assumes the burden of showing that the restriction is not personal, but is a covenant running with the land and thus enforceable by another grantee. Stegall v. Housing *506 Authority, supra. The defendants contend that since different sets of restrictions were imposed on different parcels of land there was no uniformity in the plan of development and thus the restrictions imposed were personal and enforceable only by the grantor, Carolina Caribbean Corporation.
The defendants' contention need not be examined if the principle set forth in Lamica v. Gerdes, 270 N.C. 85, 153 S.E.2d 814 (1967), is applicable to the facts of the present case. In Lamica the court observed that the dispositive factor in determining whether a restriction was enforceable only by the grantor or by other grantees is "whether the grantor intended to create a negative easement benefiting all the property, or whether he imposed the restrictions for his personal benefit, . . . ." Lamica v. Gerdes, supra at 88, 153 S.E.2d at 816. If the grantor's intent is clearly reflected in an express provision conferring to other property owners the right to enforce the restrictions, then the other owners are third party beneficiaries and may sue to enforce the contract between the grantor and grantee. Lamica v. Gerdes, supra; Reed v. Elmore, 246 N.C. 221, 98 S.E.2d 360 (1957).
Plaintiff asserts as its authority to enforce the restrictions the following provisions which appear in the Declaration of Restrictions applicable to each defendant's deed:
"[A]ll covenants, restrictions and affirmative obligations set forth in this Declaration shall run with the land and shall be binding on all parties and persons claiming under them . . . .
"In the event of a violation or breach of any of these restrictions by any property owner, or agent, or agent of such owner, the owners of lots in the neighborhood or subdivision, or any of them jointly or severally, shall have the right to proceed at law or in equity to compel a compliance to the terms hereof or to prevent the violation or breach in any event."
The grantor, Carolina Caribbean Corporation, clearly and expressly conferred on "the owners of lots in the neighborhood or subdivision, or any of them jointly or severally" the status of third party beneficiaries with the right to sue to enforce the restrictions. Lamica v. Gerdes, supra. The question which emerges from the foregoing analysis is whether the grantor intended this right of enforcement to extend to the POA, an association of property owners. The defendants argue that since plaintiff is a corporate entity owning no property at Beech Mountain, it cannot claim the benefit of the provisions above. The plaintiff contends, on the other hand, that it was at least implicit in the pertinent provisions that the grantor considered the POA to be an agent possessing the owners' right to enforce the restrictions. In support of its contention plaintiff points to language immediately preceding the quoted provisions which allegedly require every property owner to join the POA.
Restrictive covenants are "in derogation of the free and unfettered use of land [and] are to be strictly construed so as not to broaden the limitation on the use." Reed v. Elmore, supra at 224, 98 S.E.2d at 363. This rule of strict construction also guides us in the determination of whether a party seeking to enforce the restriction has sufficient interest to do so. Sleepy Creek Club, Inc. v. Lawrence, 29 N.C.App. 547, 225 S.E.2d 167 (1976). Plaintiff relies on Neponsit Property Owners' Ass'n v. Bank, 278 N.Y. 248, 15 N.E.2d 793 (1938), to buttress its argument that the grantor clearly expressed its intent in the provisions quoted above that the POA act as the agent for the owners in enforcing the restrictions. The contrast between the applicable provisions in Neponsit and those upon which the plaintiff relies in the present case would seem to compel the opposite conclusion. In Neponsit, as in this case, there were provisions for the payment of assessments which were to be applied to the maintenance of roads and other public purposes. The covenant also provided that "[t]he assigns of the party of the first part [the grantor] may include a Property Owners' Association which may hereafter be organized . . . ." Neponsit Property Owners' Ass'n v. Bank, supra *507 at 253, 15 N.E.2d at 794. The enforcement provisions followed:
"And the party of the second part by the acceptance of this deed hereby expressly vests in the party of the first part, its successors and assigns, the right and power to bring all actions against the owner of the premises hereby conveyed or any part thereof for the collection of such charge and to enforce the aforesaid lien therefor."
Neponsit Property Owners' Ass'n v. Bank, supra at 254, 15 N.E.2d at 794-5. The court stated that the only reasonable interpretation of the covenants was that the grantor "intended that the covenant should run with the land and should be enforceable by a property owners association against every owner . . . ." Neponsit Property Owners' Ass'n v. Bank, supra at 254, 15 N.E.2d at 795. The court then concluded that the plaintiff was empowered to bring the action as an assignee of the grantor. See also Merrionette Manor Homes Improvement Ass'n v. Heda, 11 Ill.App.2d 186, 136 N.E.2d 556 (1956); Annot, 51 A.L.R. 3d 556 (1973). The covenant in the Neponsit deeds expressly conferred a right of action on the grantor's "assigns," which expressly included the property owners' association. Those provisions are a model of clarity in comparison with the provisions in the Beech Mountain deeds. The case affords the plaintiff no support.
We are of the opinion that a strict construction of the provisions in the present case compels the conclusion that the plaintiff lacks the capacity to raise the issues in this suit. The plaintiff is a corporation and, as such, must be viewed as an entity distinct from its individual members. Troy Lumber Co. v. Hunt, 251 N.C. 624, 112 S.E.2d 132 (1960). Since that entity owns no property at Beech Mountain it cannot claim the benefit of the provision in the Declaration of Restrictions granting the right of enforcement of the restrictions to "the owners of lots . . . or any of them jointly or severally . . . ." And we must assume that if the grantor had intended to authorize the plaintiff to enforce the provisions as an agent of the property owners, it would have expressed such intent.
Since the plaintiff lacks the capacity to assert its claims, we do not reach the substantive issues in this suit. Accordingly, summary judgment for the defendants was proper.
Affirmed.
MORRIS and ARNOLD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355316/ | 144 Cal. App. 2d 363 (1956)
301 P.2d 55
ERNEST TOMSON, a Minor, etc., et al., Appellants,
v.
ANTHONY KISCHASSEY et al., Respondents.
Docket No. 5172.
Court of Appeals of California, Fourth District.
September 7, 1956.
*364 Brooks Crabtree and Thomas P. Golden for Appellants.
Melvin M. Belli, as Amicus Curiae on behalf of Appellants.
McInnis, Hamilton & Fitzgerald for Respondents.
*365 GRIFFIN, Acting P.J.
Plaintiffs and appellants, Helen Tomson and her son, Ernest Tomson (aged 15) through his mother as guardian ad litem, brought this action against defendants and respondents for claimed damages for injuries resulting from a collision on the night of June 10, 1952, between a bicycle operated by one John Simmons (aged 13) and on which Ernest was riding tandem and a car owned by defendants Gladys and William McPhail and operated by defendant Anthony Kischassey (aged 17). His parents are also named herein as defendants. The accident occurred on Garfield Avenue, the paved portion of which is 18 feet wide with 3-foot shoulders, near La Mesa. It runs in a general north-south direction. Chatham Street runs in an east-west direction and forms a "T" intersection with Garfield Avenue.
Anthony was driving the car east on Chatham and proceeded to turn north on Garfield. About that time he noticed two boys on bicycles proceeding northerly on Garfield, one near the center line and one near the east edge of the pavement. He said he noticed no boys approaching him on the west side of Garfield but apparently Ernest and John were riding in a southerly direction, without the aid of lights on John's bicycle, which he was steering. As Anthony started to pass the two cyclists, he proceeded on the west side of Garfield and came in collision with the bicycle on which Ernest was riding tandem. He was seated on a permanently attached luggage rack over the rear wheel. It knocked the boys to the ground and injured Ernest quite severely. The speed of the defendants' car was fixed at about 10-20 miles per hour at the time. Either John invited Ernest to ride on the rack of his bicycle to take Ernest home or Ernest asked John for a ride home on Ernest's bicycle because John's bicycle was not at the oil station where he expected it would be after the Boy Scout meeting. No money or other consideration was paid nor agreed to be paid for the ride. A jury verdict was rendered in favor of defendants. The principal complaint on appeal involves instructions which were given or refused and claimed misconduct of defense counsel.
On voir dire examination of one juror, plaintiffs' counsel, after asking the same question of the five previous jurors without objection, propounded a question as to whether the juror had any prejudice, one way or the other, in the event the evidence showed two people were riding on the same *366 bicycle. Objection was then made by defendants' counsel and he stated as a reason that there might be some question of law involved "concerning the propriety of that activity." The objection was overruled and the juror remarked that he had been informed that it was against the law for two children to ride on the same bicycle and if so, he "might be prejudiced in that matter." He was immediately informed that the court would admonish him as to the law and no further objection was made. It later admonished the jury to erase the form of objection from their minds since it had not then been established that such conduct was against the law and indicated that the court would later instruct on this subject. [1] Thereafter the court gave, at the request of defendants, an instruction in the language of section 596.5 of the Vehicle Code, which provides:
"Unlawful riding. No person shall ride, and no person driving a motor vehicle shall knowingly permit any person to ride on any vehicle upon any portion thereof not designed or intended for the use of passengers. This provision shall not apply to an employee engaged in the necessary discharge of his duty or to persons riding within or upon vehicle bodies in space intended for any load on said vehicle."
Plaintiffs' counsel contends that this was the only law in support of the juror's information that it was a violation of the law to ride tandem on one bicycle and that the section itself does not prohibit such an act.
In La Fleur v. Hernandez, 84 Cal. App. 2d 569, 574 [191 P.2d 95], it was questioned whether that section was applicable where the passenger was riding on the handlebars of a bicycle. It concluded, however, that the error, if any, was not prejudicial.
Section 31 of the Vehicle Code defines a vehicle as a "device in, upon or by which any person or property is or may be propelled, moved or drawn upon a highway, excepting a device moved by human power...." That section especially eliminates a bicycle in the definition of a vehicle. Section 32 defines a motor vehicle and likewise excludes a self-propelled bicycle. The only section of the Vehicle Code which could possibly include it is section 452, which provides that every person riding a bicycle or riding or driving an animal upon a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle, but this division (9) excepts those provisions which by their very nature can have no application. Section 596.5 is included *367 within division 9 (traffic laws). It therefore appears that it might possibly apply to riding a bicycle upon a highway but it would be difficult to hold that it applied to a horse being ridden bareback and double. Apparently, in James v. Myers, 68 Cal. App. 2d 23 [156 P.2d 69], a similar question arose where a motorcycle operator and his companion were riding on the single seat of the vehicle intended and designed for the exclusive use of the operator. The court held it was a violation of section 596.5 of the Vehicle Code. If it could be applied to a motorcycle under section 452, the trial court was justified in submitting the question of its application to a bicycle to the jury. No prejudicial error resulted in this respect.
[2] The trial court refused plaintiffs' proffered instruction in the language of BAJI 147 as to the standard of care or conduct of children, claiming it was "inapplicable." The reason it was inapplicable is not indicated. Here, the plaintiff was 15 years of age and the operator of the bicycle was 13. The evidence produced might well have justified the giving of this instruction. A similar instruction in Blanton v. Curry, 20 Cal. 2d 793 [129 P.2d 1] (12-year-old child) and Kelley v. City & County of San Francisco, 58 Cal. App. 2d 872 [137 P.2d 719] (13-year-old boy and a junior traffic officer acquainted with traffic and safety laws) was approved.
The court did give an instruction that bicycle riders have the same right as automobile drivers to the use of the streets and the former are chargeable with only such ordinary care for their own safety as a person of like age, intelligence and experience would exercise under the same or similar circumstances. The proffered instruction should have been given since the instruction given only partially covered the subject matter.
[3] The court also refused plaintiffs' proffered instruction in the general language of BAJI 138-A and 201-F, with modifications, in reference to the amount of caution required of the driver of a motor vehicle and also that of a bicycle rider. This type of instruction was approved in O'Brien v. Schellberg, 59 Cal. App. 2d 764, 770 [140 P.2d 159]. However, the proffered instructions modified the BAJI instructions to the extent that they may have been considered objectionable. The court did give a general instruction on this subject with the statement that it is the duty of the driver of a motor vehicle using a public highway to be vigilant *368 at all times and to keep the vehicle under such control that to avoid a collision he can stop as quickly as might be required of him by eventualities that would be anticipated by an ordinarily prudent driver in a like position, and it is his duty to exercise ordinary care at all times to avoid placing himself and others in danger and to exercise ordinary care at all times to avoid a collision. This instruction only partially covered the subject matter.
A more serious question arises as to the refusal of the trial court to give plaintiffs' proffered instructions to the effect that if plaintiff was enjoying the hospitality of John Simmons and was riding on the bicycle for his own pleasure or on his own business without making any return to or conferring any benefit on him, other than the mere pleasure of his company, then plaintiff Ernest Tomson was a guest and the negligence of the driver is not then imputed to a guest. The court agreed, in chambers, to give an instruction in the general language of BAJI 210-E to the effect that if John was negligent and his negligence contributed in some degree as a proximate cause to the injury of plaintiff, the jury must determine whether John's negligence should be imputed to plaintiff, thus constituting contributory negligence on his part, and barring recovery by him; that to so impute negligence, it must find plaintiff and the driver were then in joint or common possession and control of the bicycle, with the two having equal rights to be heard in its control and management. The proffered instructions were refused as "covered by court's instruction on imputed negligence." Apparently the trial judge, when he came to this instruction, in reading it to the jury, did start to read it in the general language of BAJI 210-E, and then, for some unexplained reason, stopped and told the jury to strike it out. Apparently, no other or further instruction was given on the subject of imputed negligence. The instruction the court ordered stricken was not placed in the record on appeal among the "refused" instructions but, as pointed out in a petition for rehearing, it apparently was not given.
[4] The rule is well established that the contributory negligence of a driver of a vehicle is not ordinarily imputable to his passenger or guest. (Pope v. Halpern, 193 Cal. 168, 173-174 [223 P. 470].) [5] Where there is nothing in common between a passenger and a driver of a vehicle except a common destination and a common purpose in going there, the negligence of the driver is not to be imputed to the passenger. *369 (Campagna v. Market St. Ry. Co., 24 Cal. 2d 304 [149 P.2d 281].) [6] In the instant case the jury was not instructed that if it found John was negligent, it must also determine whether his negligence should be imputed to plaintiff, and that before it could be so imputed it must find that plaintiff and the driver were then in joint or common possession and control of the bicycle. Plaintiff was entitled to have his or some adequate instruction given on this subject. This fact, in conjunction with the other instructions refused, clearly constitute reversible error.
Another serious question is jointly raised by counsel for plaintiffs and for amicus curiae. By stipulation, the argument to the jury and on the motion for new trial was not reported. Plaintiffs now claim that in the argument to the jury, defendants' counsel stated that his client was "a young man" and that "In the event you were to give plaintiffs a verdict of say $5,000.00, how much would you think Anthony could pay on such a judgment? $50.00 a week? Assuming that he could pay as much as $50.00 a week, it would take him 100 weeks to pay $5,000.00. Any higher verdict would take a comparable longer time to pay; and anything like $25,000.00 would be entirely out of the question for him to pay." In some sort of a hearing before the trial judge, after this appeal had been taken, counsel for plaintiffs endeavored to have counsel for defendants agree as to what was said in the argument to the jury in this respect. He denied that such statement was made and claims he only referred to how long it would take to earn $5,000, and that that sum would go a long way, and that he made no remark about defendant's ability to pay.
Had plaintiffs' claim affirmatively appeared as a part of the record of the argument to the jury, it would have been error for either counsel to refer to the ability or inability of a defendant in any such action to respond to the judgment rendered. By such conduct, counsel invites error on the part of plaintiff to show that defendants are in fact insured (which plaintiffs claim is a fact) and any such conduct, if prejudicial, might well call for a reversal of the judgment if proper objection is made at the time and a request made that the court instruct the jury to disregard the statement. (Olsen v. Standard Oil Co., 188 Cal. 20 [204 P. 393]; Drotleff v. Renshaw, 34 Cal. 2d 176 [208 P.2d 969].) Apparently, the authorized record before this court does not indicate that objection to the claimed argument of counsel was made at the *370 time and no request was then made to the court to instruct the jury to disregard it. There was a conflict in the supplemental reporter's transcript as to what was said in the argument in this respect and the court made no finding on the subject.
Since a reversal of the judgment is otherwise required, on the next trial such claimed misconduct, if true, may well be avoided.
Judgment reversed.
Mussell, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355329/ | 49 Wash. 2d 312 (1956)
301 P.2d 158
In the Matter of the Estate of JASPER LUDWIG, Deceased.
H.C. WILSON, as Administrator, Appellant,
v.
THE AMERICAN TOBACCO COMPANY et al., Respondents.[1]
No. 33379.
The Supreme Court of Washington, Department One.
September 13, 1956.
Wayne J. Davies and William C. Blanchard, for appellant.
Holman, Mickelwait, Marion, Black & Perkins, Eggerman, Rosling & Williams, and Skeel, McKelvy, Henke, Evenson & Uhlmann, for respondents.
FINLEY, J.
Jasper H. Ludwig, a resident of Nebraska, died intestate therein on December 16, 1952. His widow, Eva C. Ludwig, instituted probate proceedings in Nebraska.
On December 14, 1954, H.C. Wilson, a resident of King county, Washington, petitioned the superior court of that county for letters of administration respecting the above-entitled estate. Apparently, he did this by virtue of a telegram purporting to be from Mrs. Eva C. Ludwig and purporting to authorize Mr. Wilson
"... to appoint an administrator for the estate of Jasper H Ludwig and commence suit against tobacco companies for damages..."
*313 Judge Douglas, of the superior court for King county, appointed H.C. Wilson as administrator of the Ludwig estate, and letters of administration were issued to him. On the following day, H.C. Wilson, as administrator, commenced an action in the district court of the United States against the tobacco companies involved in this case, seeking to recover damages in the amount of fifty-eight thousand dollars, claimed under the Nebraska statute for the alleged wrongful death of Jasper H. Ludwig. The decedent had never been a resident of the state of Washington. With the possible exception of the alleged cause of action against the tobacco companies relative to wrongful death under the Nebraska statute, no property of decedent was situated in Washington at the time of his death.
On February 1, 1955, the tobacco companies, defendants in the above-mentioned action in Federal court, filed a petition in King county superior court to revoke the letters of administration issued to H.C. Wilson. Their primary contention for revocation of the letters was that no property of the decedent was within the jurisdiction of the Washington court; that the assumption of jurisdiction by the probate department of such court contravened the established policy of the laws of this state, as announced in the case of In re Yarbrough's Estate, 126 Wash. 85, 216 P. 889, 222 P. 902. The petitioners also contended that Mr. Wilson had not filed an administrator's bond and had not given notice, as required by the probate statutes of Washington.
At a further hearing on the matter before Judge Wright of the King county superior court, an order was signed, revoking the letters of administration and dismissing the probate proceedings. The reasons given by Judge Wright in support of his action are expressed in his finding of fact No. 7 and his conclusions of law Nos. 1 through 5. These read:
FINDINGS OF FACT:
"7. No property of the said decedent is now, or ever has been, within the jurisdiction of this court."
*314 CONCLUSIONS OF LAW:
"1. As a matter of policy, as was announced in the case of In re Yarbrough's Estate, 126 Wash. 85, 216 P. 889 (1923), affirmed on rehearing en banc, 126 Wash. 90, 222 P. 902 (1924), to allow this probate proceeding under the facts herein found is so liable to abuse and confusion that the parties should not be allowed the use of the probate courts of this state.
"2. This court has no jurisdiction to appoint H.C. Wilson as administrator of the estate of the above-named decedent.
"3. A bond should have been filed in this proceeding by H.C. Wilson, as required by law.
"4. Notice of the hearing upon the petition of said H.C. Wilson for the appointment of himself as administrator should have been given and posted as required by law.
"5. The order appointing said H.C. Wilson as administrator of the estate of Jasper H. Ludwig, deceased, should be vacated and set aside and the letters of administration granted to H.C. Wilson should be revoked and the above-entitled probate proceedings dismissed."
H.C. Wilson is now attempting to appeal from the order revoking the letters of administration and dismissing the probate proceedings. His assignments of error relate to the above finding of fact and the above conclusions of law.
The respondent tobacco companies have moved to dismiss the appeal upon the ground that the appellant has no appealable interest and is not a "party aggrieved" by the order of the probate court within the purview of Rule on Appeal 14, 34A Wn. (2d) 20. In support of their motion to dismiss the appeal, the respondents rely on Cairns v. Donahey, 59 Wash. 130, 109 P. 334, and State ex rel. Simeon v. Superior Court, 20 Wn. (2d) 88, 145 P. (2d) 1017.
In the Simeon case, the relator was removed as administrator of an estate, and another person was appointed to succeed him. The court held that the person so removed was not "aggrieved," under the applicable rule of procedure and was not entitled to have the order of removal reviewed through appeal or by writ of review. In so holding, the court quoted from and relied on the applicable principles announced in the Cairns case. The Cairns case involved an appeal by an administrator from an order removing him, *315 admitting a will to probate, and appointing an executor of the will. The appeal was dismissed on the ground that the removed administrator had no appealable interest. The Cairns decision points out that the administrator was not asserting any personal claim for compensation that might be due for services rendered prior to his removal.
In the present case, appellant attempts to distinguish the Simeon and Cairns cases. It is true that the probate proceedings were not terminated in either of these cases, whereas in the instant case the appellant was removed as administrator and, in addition, the probate proceedings were dismissed or terminated.
Appellant contends that his removal and the termination of the probate proceedings will be fatal to the wrongful-death action instituted by him in Federal court; that the end result will be a diminution of the estate of the decedent. He urges that in connection with this appeal he is acting as a statutory trustee in behalf of beneficiaries under the Nebraska wrongful-death statute; that this constitutes him an "aggrieved party," with an appealable interest; in other words, that this appeal should not be dismissed and that the action of the probate court should be reversed to prevent diminution of the estate of the decedent that is, to permit the continuance of the wrongful-death action in the Federal court.
[1] This assumes that continuance of the ancillary proceedings in this state, and reinstatement of appellant as administrator, are necessary prerequisites to the maintenance of the action in the Federal court. These assumptions are not sound. As to a wrongful-death action, the Nebraska statute (2 Rev. Stat. of Nebraska (1943) 1372, § 30-810) provides:
"... Every such action, ... shall be commenced within two years after the death of such person. It shall be brought by and in the name of his personal representatives, for the exclusive benefit of the widow or widower and next of kin.... Provided, such amount [received in settlement, or recovered by judgment] shall not be subject to any claims against the estate of such decedent." (Italics ours.)
*316 Numerous cases and authorities clearly hold that a domiciliary administrator under statutes like that of the state of Nebraska may institute a wrongful-death action in a foreign jurisdiction without the necessity of instituting ancillary proceedings therein. The reason for this principle of law is well stated in Wiener v. Specific Pharmaceuticals, 298 N.Y. 346, 83 N.E. (2d) 673, as follows:
"The rule barring foreign administrators from our courts is just and reasonable only if applied in cases, first, where there are domestic creditors, and, second, where the foreign administrator sues to recover a fund in which such creditors may share. Obviously, no prejudice threatens local creditors of the decedent if the wrongful death statute makes no provision for recovery on behalf of the general estate and, in fact, bars creditors' claims against the proceeds. Suing under such a statute, plaintiff acts, not as an officer of the foreign court appointed by it as alter ego for the estate, but as a trustee for the designated beneficiaries, the actual and real parties in interest. In such a case, the amount recovered truly constitutes a special fund for their exclusive benefit, and, since it is not subject to the claims of others, no danger exists that failure to require local qualification may harm or prejudice domestic creditors. With the primary and, perhaps, only reason for the rule thus removed, the rule itself has no sensible application and should not be invoked in this class of case.
"For that reason, we conclude, as have the courts of a number of other jurisdictions, that a foreign administrator, suing as statutory trustee, has standing to maintain a wrongful death action in this State upon the strength of his original letters."
See, also, Reilly v. Antonis Pepe Co., 108 Conn. 436, 143 A. 568; Siverling v. Lee, 90 Fed. (Supp.) 659; Connor v. New York, N.H. & H.R. Co., 28 R.I. 560, 68 A. 481; Boulden v. Pennsylvania R. Co., 205 Pa. 264, 54 A. 906; Janes v. Sackman Bros. Co., 177 F. (2d) 928; Knight v. Moline, E.M. & W.R. Co., 160 Iowa 160, 140 N.W. 839; 3 Beale, The Conflict of Laws 1461, § 467.6; Stumberg, The Conflict of Laws 176; 162 A.L.R. 324.
[2] To sum up the matter, the removal of appellant as administrator and the dismissal of the probate proceedings *317 in the instant case will not necessarily result in a diminution of the estate of the decedent because, despite the dismissal of the probate proceedings, the action in Federal court can be maintained by the domiciliary wrongful-death administratrix. This being true, the status of appellant in this appeal is not significantly different from that of the administrator in the Simeon case. In other words, he is not a party aggrieved; and since he has no appealable interest under the decision in the Simeon case, the motion to dismiss the instant appeal should be granted.
Although we do not get to a discussion of the appeal on the merits, we think some comment at this point regarding the Yarbrough case, supra, would be appropriate. We have in mind the statement therein that it is the established policy of this state to discourage the use of our probate courts for the litigation of wrongful-death claims presented under wrongful-death statutes of other states. We believe there were sounder reasons than this one for the result reached in the Yarbrough case. First, the Oregon statute was involved, and under it a wrongful-death recovery is in the nature of a general asset of the estate of the decedent and is subject to creditors' claims. Second, no probate proceedings had been instituted in Oregon which would have provided notice and some protection to Oregon creditors. Under the Nebraska statute involved in the instant case, a wrongful-death recovery is distributable to the statutory beneficiaries without being subject to claims of creditors of the estate of the decedent. Furthermore, in the instant case, probate proceedings were instituted in Nebraska, and the surviving spouse was appointed as administratrix. On the basis of the facts involved in the instant case, the Yarbrough case would be distinguishable and not controlling.
For the reasons we have indicated hereinbefore, the motion to dismiss the appeal is granted.
OTT, J., concurs.
SCHWELLENBACH and WEAVER, JJ., concur in the result.
October 31, 1956. Petition for rehearing denied.
NOTES
[1] Reported in 301 P. (2d) 158. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355339/ | 240 Ga. 306 (1977)
240 S.E.2d 867
DEPARTMENT OF HUMAN RESOURCES
v.
BAGLEY.
32614.
Supreme Court of Georgia.
Submitted October 28, 1977.
Decided December 5, 1977.
Arthur K. Bolton, Attorney General, Dallas P. Jankowski, Staff Assistant Attorney General, for appellant.
Finn, Donehoo & Cunningham, Dean Donehoo, for appellee.
HALL, Justice.
We granted certiorari to review the decision of the Court of Appeals in Division 1 of Dept. of Human Resources v. Bagley, 142 Ga. App. 353 (235 SE2d 734) (1977).
Respondent was granted a divorce, and was awarded $100 per month in child support for her son in the decree. Shortly after the judgment in that case, a second son was born to her. Although this child was also a product of the marriage, he was not provided for in the decree. Respondent applied for and received aid from petitioner for both children under the AFDC program at a time when her ex-husband was in arrears in his payments. The Department made no effort to recover support payments from the "responsible parent," respondent's ex-husband.
Respondent brought a contempt proceeding against the father to collect child support, including $1,200 in arrearages on the monthly payments, and that sum was paid into court for respondent's benefit. At this point the DHR intervened, and asserted that the entire $1,200 should be paid to it to assure reimbursement for the public assistance paid to respondent. The only proof of payments offered by the Department was a certificate that respondent had received payments, and a copy of one canceled check.
Under Code Ann. § 99-905b, the acceptance of public assistance on behalf of a child operates as an assignment *307 of any right of child support owed to the recipient by the responsible parent, and subrogates the Department to the right to collect those payments from the responsible parent. Additionally, Code Ann. § 99-916b gives the DHR the right to have paid to it sums recovered for support of such a child. The Department urges that these provisions entitle it to prevail.
The Court of Appeals disagreed, holding that the DHR is not entitled to the money since the action to recover child support was initiated by the custodial parent, rather than the Department. The court noted that the DHR has an affirmative duty to initiate an action to collect support payments due a recipient of public assistance under the AFDC program. Code Ann. § 99-907b (a).
Although we agree with much of the reasoning of the Court of Appeals, we cannot agree that the Department loses all right to recover payments because of its failure to initiate action to recover support. The state has a real interest in recovering payments which would not have been made had the responsible parent lived up to his duty, and the purpose of §§ 99-905b and 99-907b is to secure that reimbursement. To the extent that the state paid public assistance on behalf of a child which would not have been made had the responsible parent been current in paying his support payments, the state is entitled under the assignment provided for in § 99-905b to be reimbursed for its excess payments out of support payments for that child recovered from the responsible parent, upon appropriate proof of the extent of the state's claim, subject to the condition discussed below. This right continues even if the state fails to perform its duty to initiate action under § 99-907b.
Where the custodial parent is forced to bring an action to recover support payments by the failure or refusal of the state to do so, the proper procedure is for the custodian to join the DHR as a plaintiff to the suit, since it is normally a necessary party under Code Ann. § 81A-119 (a). The parent may cross claim against the DHR for a decision of what sums are due the Department for reimbursement, if there is a dispute. It is the Department's duty to actively prosecute the claim on behalf of both itself *308 and the custodial parent. Code Ann. § 99-907b. Should the DHR fail to actively participate, it may lose its claim for reimbursement.
However, in this case the petitioner was not joined as a plaintiff, and its right to reimbursement was not terminated. But to allow the Department full reimbursement could unjustly enrich it as the result of its breach of its duty to initiate action. That breach forced respondent to initiate action, and to the extent she has been forced to bear the expenses of that action the breach has caused her direct pecuniary loss, as well as unnecessary trouble. Moreover, her action has conferred a benefit on the state to the extent that she has recovered sums due the state for reimbursement. Therefore, we hold that in future cases of this type the DHR may recover its reimbursement on the condition that it agrees to reimburse the custodial parent for the costs of bringing her action (to the extent she is forced to bear them), including her reasonable attorney fees if approved by the court. Cf. Code Ann. § 20-1404; Jones v. Spindel, 239 Ga. 68 (235 SE2d 486) (1977).
Because we do not review Division 2 of the opinion below, the judgment must be affirmed.
Judgment affirmed. All the Justices concur, except Jordan, J., who concurs in the judgment only, and Marshall, J., who is disqualified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355342/ | 144 Ga. App. 180 (1977)
240 S.E.2d 720
WOLSKI
v.
HAYES et al.
54525.
Court of Appeals of Georgia.
Argued September 16, 1977.
Decided October 11, 1977.
Rehearing Denied December 1, 1977.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Roderick C. Dennehy, Jr., Matthew H. Patton, for appellant.
W. Seaborn Ashley, Jr., Alan M. Alexander, Jr., for appellees.
SHULMAN, Judge.
Stewart Oil Co. (hereinafter Oil Co.) brought suit against Hayes for breach of contracts to construct service stations. Hayes answered denying the breaches and alleging fraud in inducing him to enter one of the contracts. In a portion of the answer denominated "Counterclaims," Hayes set forth further allegations of fraud, complaining that Oil Co., Stewart (owner of Oil Co.) and Wolski individually and in conspiracy practiced fraud on him in order to induce him to agree to construct one of the service stations for a compensation considerably less than he would have demanded had no fraud been involved. The result of the fraud, Hayes claimed, was a $25,000 cost-overrun, which amount he claimed as actual damages, plus $50,000 punitive damages. The basis of Wolski's liability, according to Hayes, was his execution, in the course of selling the service station site to Oil Co., of an "Owner's Affidavit" in which he swore that the site had been compacted in accordance with Department of Transportation standards.
Although Oil Co. and Stewart responded to the "counterclaims," Wolski did not. After more than 45 days had passed since service of the pleadings on Wolski, a default judgment was entered against him. Wolski filed a motion to set aside the judgment, from the denial of which *181 this appeal is brought.
The single issue in this case is whether that portion of Hayes' pleading directed toward Wolski's liability is a counterclaim or a third-party complaint. If, as Wolski contends, it is a counterclaim, the judgment below must be reversed. Since no answer is required to a counterclaim, Code Ann. § 81A-112 (a), the case could not go into default as a consequence of Wolski's failure to respond, and no default judgment could be authorized. If, however, the pleading is a third-party complaint, a response was required (Code Ann. § 81A-114 (a)), and a default judgment was proper (Code Ann. § 81A-155 (a)).
Third party practice is controlled by Code Ann. § 81A-114, subsection (a) of which authorizes a defendant to join as a third-party defendant "...a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." This court has held many times that a third-party complaint must show that the third-party defendant is secondarily liable to the third-party plaintiff. Central of Ga. R. Co. v. Lester, 118 Ga. App. 794 (2) (165 SE2d 587); Worrill v. Pitney-Bowes, Inc., 119 Ga. App. 258 (167 SE2d 236). Quoting from Kooman, Federal Civil Practice, this court held in Mathews v. McConnell, 124 Ga. App. 519 (184 SE2d 491): "The absolute requirement of every third-party proceeding is that its purpose must be to impose upon the third-party defendant a liability for part or all of the liability asserted by the original plaintiff against the third-party plaintiff. A third-party action may be maintained only against one who is secondarily liable to the original defendant for part or all of the original plaintiff's claim." Id. p. 521. Secondary liability is defined as "a liability which does not attach until or except upon the fulfillment of certain conditions; ..." Black's Law Dictionary, Revised, 4th Ed., 1968. In the context of third-party practice, the certain condition clearly means the third-party plaintiff's liability to the original plaintiff. "There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant..." Mathews v. McConnell, supra, p. 521. (Emphasis supplied.)
The inquiry in the present case narrows, then, to *182 whether Hayes' pleading constitutes a valid attempt to pass on to Wolski the liability asserted against Hayes.
The original complaint in the case alleged a contract, breach of that contract, and damages consequent to that breach. Hayes' answer denied the breach, and set up a defense of fraud. That portion of the "counterclaims" directed to Wolski alone alleged the contract, representations by Oil Co. and Stewart as to site preparation, the falseness of those representations, Wolski's execution of an affidavit containing the same representations made by Oil Co. and Stewart, the falseness of Wolski's statement and Wolski's knowledge of its falseness, communication to Hayes of the affidavit in order to induce him to enter the contract, Wolski's knowledge that his statement would be so used, Hayes' reliance on the misrepresentations and his entering into the contract for a consideration less than he would have demanded absent the fraud, and $25,000 cost-overrun solely as a result of the fraudulent deception.
Although it appears that the operant facts of this case arguably could have been framed in a pleading cognizable as a third-party complaint, we hold that that was not done here. The liability Hayes seeks to impose on Wolski is not connected, in Hayes' pleading, with Hayes' potential liability to Oil Co. He is attempting to hold Wolski directly liable in actual and punitive damages for fraud by which he alleges he was induced to enter a contract which because of Wolski's misrepresentations cost him more to complete than he had expected. A clear indicator that the liability Hayes seeks to impose is direct rather than secondary is the fact that Hayes' recovery against Wolski in no wise depends on Oil Co.'s recovery against Hayes. As the pleadings stand, if Hayes could successfully defend against the main action on his fraud defense it would be possible for him to recover from Wolski for the same fraud. While that result may be proper in a counterclaim context, it is impermissible in third-party practice. "Third-party pleading does not allow a defendant to implead a third-party defendant to recover on a claim on which the third-party defendant is alleged to be directly liable to the defendant. The defendant may only implead one `who is or may be liable to him for all or *183 part of the plaintiff's claim against him.' [Cits.]" Southern R. Co. v. Ins. Co. of North America, 228 Ga. 23 (5b) (183 SE2d 912).
We are not, by this holding, elevating form over substance or requiring the use in pleading of talismanic incantations. We are merely requiring that which is the essence of notice pleading, putting a person on notice of potential liability and the basis thereof. A concomitant of receipt of such notice is a responsibility to respond at the appropriate time and place with defenses to the liability asserted. Hayes' pleading, as framed, may have been effective as a counterclaim had he complied with Code Ann. § 81A-113 (h) and obtained an order joining Wolski as a party whose presence is "... required for the granting of complete relief in the determination of a counterclaim ..." Id., assuming, but not deciding, that such an order would be proper. Wolski would then have been on notice that he had been made a party to a suit and that he had until trial or the hearing on a motion or the filing of some discovery device to formulate his response. Alternatively, had the pleadings notified Wolski that Hayes was seeking to pass on liability asserted against him by Oil Co., Wolski would have been on notice that he was required to answer. The "counterclaims" in Hayes' pleading did not serve that purpose and cannot be construed as a third-party complaint. It must follow, then, that Wolski was not in default, the entry of default judgment was improper, and the denial of Wolski's motion to set aside was error.
Judgment reversed. Quillian, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355349/ | 144 Ga. App. 253 (1977)
240 S.E.2d 777
PASS
v.
THE STATE.
53932.
Court of Appeals of Georgia.
Argued May 3, 1977.
Decided December 5, 1977.
John E. Kardos, for appellant.
Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.
SMITH, Judge.
The appellant appeals his conviction and sentence for aggravated assault, seeking reversal because the trial *254 court allegedly removed the issue of guilt from the jury's consideration and mischarged the law of aggravated assault. Finding no harmful error, we affirm.
After having an argument with a man at an Athens residence, the defendant appeared in the doorway of the home holding a pistol in his hand. At about the same time, the victim, who was not involved in the argument, walked into the room and saw the defendant holding the pistol pointed toward the floor. He testified that he was not apprehensive for his safety. Thereafter the gun discharged hitting the victim in the toe. The state based its case upon the alternative theories of transferred intent or criminal recklessness, and after charge by the court the jury returned a guilty verdict.
1. In its charge the court stated: "Now, as applied to this case, the State has proved beyond a reasonable doubt that the Defendant committed an assault on the person of the victim named in the indictment with a deadly weapon either intending to commit an assault on someone else or acting with criminal negligence then in either event the requirements of the law would be satisfied and the Defendant would be guilty as charged." The appellant contends the court's slip of the tongue in omitting the word "if" prior to the phrase "the state has proved beyond a reasonable doubt" amounted to a directive that the state had proved the elements beyond a reasonable doubt. We disagree, and hold the error to be harmless, because the charge read as a whole reveals five subsequent occasions where the court accurately charged that the jury must find proof of the various elements to be beyond a reasonable doubt. In addition, the court admonished the jury that any intimation of opinion on its part as to what had or had not been proved was unintentional and should be disregarded. It is inconceivable that the charge, in its entirety, could have misled the jury. Ward v. State, 238 Ga. 367, 370 (233 SE2d 175) (1977).
2. The trial court charged that "[a]n assault within the meaning of this crime means either an attempt to commit or the commission of a violent injury to the person of another or an act which places another in reasonable apprehension of immediately receiving a violent injury." While the court's charge did erroneously expand the *255 statutory definition of a simple assault as stated in Code § 26-1302 by adding the unnecessary clause "or the commission of a violent injury to the person of another," the error is harmless.
Judgment affirmed. Bell, C. J., and McMurray, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1278783/ | 646 S.E.2d 252 (2007)
In the Matter of Jon Philip CARR.
No. S07Y1143.
Supreme Court of Georgia.
June 4, 2007.
Jon Philip Carr, Milledgeville, pro se.
Jenny K. Mittelman, State Bar of Georgia, William P. Smith, III, General Counsel, State Bar of Georgia, for appellant.
Gregory L. Fullerton, Chair, Review Panel, Albany, other party representation.
*253 PER CURIAM.
This disciplinary matter is before the Court on the petition of Jon Philip Carr for suspension pending appeal of his felony convictions in the Superior Court of Baldwin County. It is a violation of the Georgia Rules of Professional Conduct for a lawyer to be convicted of a felony (Rule 8.4(a)(2)), and the maximum penalty for such conduct is disbarment. Rule 8.4(d). The State Bar recommends that the Court accept the petition.
Having considered the petition and response, the Court hereby accepts the voluntary petition and directs that Jon Philip Carr be suspended from the practice of law pending the termination of the appeal of his criminal convictions. See Rule 4-106 of the Georgia Rules of Professional Conduct; In the Matter of Haugabrook, 275 Ga. 201, 563 S.E.2d 844 (2002).
Carr is reminded of his duties pursuant to Bar Rule 4-219(c).
Voluntary suspension until further order of this Court.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204177/ | 888 N.E.2d 1187 (2008)
227 Ill.2d 592
PEOPLE
v.
O'BRIEN.
No. 105825.
Supreme Court of Illinois.
March Term, 2008.
Disposition of petition for leave to appeal[*]. Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2204185/ | 888 N.E.2d 1185 (2008)
227 Ill.2d 586
PEOPLE
v.
CALVIN.
No. 105892.
Supreme Court of Illinois.
March Term, 2008.
Disposition of petition for leave to appeal.[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264652/ | 879 F.Supp. 650 (1995)
Raul BRITO, Plaintiff,
v.
INTEX AVIATION SERVICES, INC., and Delta Air Lines, Inc., Defendants.
No. 4:94-CV-660-A.
United States District Court, N.D. Texas, Fort Worth Division.
March 20, 1995.
*651 Jay K. Gray, Law Offices of Charles Noteboom, Hurst, TX, for Raul Brito.
Mia M. Martin, Thompson & Knight, Dallas, TX, for Intex Aviation Services, Inc.
Debra Stahl Fitzgerald, Crouch & Hallett, Dallas, TX, for Delta Airlines, Inc.
MEMORANDUM OPINION AND ORDER
McBRYDE, District Judge.
Before the court for decision in the above-styled and numbered action is the motion of defendant Intex Aviation Services, Inc., ("Intex") for summary judgment. After considering the motion, the brief in support thereof ("Brief"), the response, as amended,[1] of plaintiff, Raul Brito, ("Brito"), the reply thereto, the applicable authorities, and other pertinent parts of the record, the court finds that the motion should be granted.
I.
Brito's Claims
Brito asserts claims against defendants, Delta Air Lines, Inc., ("Delta") and Intex for recovery of damages he alleges he suffered while working for Intex. Plaintiff's Original Petition at 3. He alleges that he was an employee of Intex, a company that contracted with Delta to clean airplanes at the Dallas/Fort Worth Airport, that in September 1992, as he was exiting from a Delta DC-9 aircraft he had cleaned, he was injured when he slipped on grease on the stairway, and that his injury was caused by the negligence and gross negligence of Intex and Delta. Id. at 2-3.
II.
The Motion, Brief, Response, and Reply
Intex alleges that: Prior to Brito's accident, Intex rejected coverage under the Texas Worker's Compensation Act ("the Act"), and established a voluntary occupational insurance plan ("the plan"), in which employees could enroll by executing, inter alia, a waiver ("the waiver") by which they agreed to waive all rights under the Act, any other statute, or under common law, to assert legal action against Intex for work related injuries and agreed that the plan would be the sole source of recovery for such injuries. Brief at 3. Brito elected to participate in the plan, he signed the waiver on August 25, 1992, and he received and retained medical benefits and wage replacement benefits under the plan for his September 1992 injury. Id. at 2.
Intex asserts that summary judgment is appropriate because (1) Brito's claims against Intex arising out of his September 19, 1995, work related injury are barred by the waiver, id. at 5; (2) Brito ratified the waiver by accepting benefits under the plan for his injury,[2]id. at 6-8; and, (3) Brito is estopped from asserting his claims under the quasi-estoppel doctrine, by nature of having accepted the benefits under the plan. Id. at 8-10.
*652 In his response, Brito asserts that the waiver is unenforceable under Texas law because it contravenes the Act, that it is void under Tex.Lab.Code.Ann. § 406.035, prohibiting waivers of compensation, that, because the waiver is void, it cannot be ratified or saved by estoppel, and that he did not understand the meaning and consequences of the waiver when he signed it because it was not explained to him. Response at 4-7.
In its reply, Intex distinguishes from the instant action the authorities upon which Brito relies to support his contention that the waiver is unenforceable, and reasserts its ratification and estoppel arguments.
III.
Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The movant may discharge this burden by showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256, 106 S.Ct. at 2514. An issue is material only if its resolution could affect the outcome of the action. Id. at 248, 106 S.Ct. at 2510. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir.1984).
The Fifth Circuit explained the burden placed on the nonmovant:
When the nonmovant fails to make a sufficient showing on an essential element of her case, the moving party is entitled to summary judgment "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
McKee v. City of Rockwall, Texas, 877 F.2d 409, 414-15 (5th Cir.1989) (quoting Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990).
IV.
Analysis
The relevant summary judgment evidence establishes that:
(1) On February 1, 1992, Intex rejected coverage under the Act, concurrently with establishing the plan. Materials Submitted in Support of Defendant's Motion for Summary Judgment ("Materials"), Exhibit "1" at 2.
(2) Brito began employment with Intex on August 25, 1992. Id. On that same date, he acknowledged receipt of notice that Intex rejected coverage under the Act, that Intex adopted the plan, and that execution of a waiver was necessary for enrollment in the plan. Materials, Exhibit "1B."
(3) Brito signed the waiver on August 25, 1992.[3] Materials, Exhibit "1C." The pertinent parts of the waiver stated:
MY SIGNATURE BELOW CONFIRMS I UNDERSTAND AND AGREE TO THE FOLLOWING:
1. ON AND AFTER FEBRUARY 1, 1992, INTEX AVIATION SERVICES, *653 INC. (THE COMPANY) WILL BE A NONSUBSCRIBER UNDER THE TEXAS WORKERS' COMPENSATION ACT (THE "ACT"). UNDER SECTIONS 1 AND 4 OF THE ACT AS IN EFFECT UNTIL JANUARY 1, 1991, AND UNDER SECTIONS 3.03 AND 3.04 OF THE ACT AS IN EFFECT THEREAFTER:
(A) AN EMPLOYEE OF A NONSUBSCRIBER IS ENTITLED TO BRING LEGAL ACTION AGAINST HIS EMPLOYER, AND IF HE PREVAILS, TO RECOVER JUDGMENT AGAINST HIS EMPLOYER, FOR ANY DAMAGES SUSTAINED BY REASON OF ANY PERSONAL INJURY RECEIVED IN THE COURSE OF HIS EMPLOYMENT, OR BY REASON OF DEATH RESULTING FROM SUCH INJURY;
(B) IN SUCH AN ACTION, IT IS NOT A DEFENSE THAT THE EMPLOYEE WAS GUILTY OF CONTRIBUTORY NEGLIGENCE, THAT THE INJURY OR DEATH WAS CAUSED BY THE NEGLIGENCE OF A FELLOW EMPLOYEE, OR THAT THE EMPLOYEE HAD ASSUMED THE RISK OF INJURY OR DEATH;
(C) THE EMPLOYER MAY DEFEND SUCH AN ACTION ON THE GROUND THAT THE INJURY WAS CAUSED BY THE WILLFUL INTENTIONAL ACT OF THE EMPLOYEE TO BRING ABOUT THE INJURY, OR WAS SO CAUSED WHILE THE EMPLOYEE WAS IN A STATE OF INTOXICATION; AND
(D) IN ANY SUCH ACTION THE EMPLOYEE, IN ORDER TO RECOVER, MUST PROVE NEGLIGENCE OF THE EMPLOYER OR SOME AGENT OR SERVANT OF THE EMPLOYER ACTING WITHIN THE GENERAL SCOPE OF HIS EMPLOYMENT.
. . . . .
3. IN CONSIDERATION OF MY ELECTION TO ENROLL IN, AND THUS BECOME ELIGIBLE TO RECEIVE BENEFITS UNDER, THE PLAN I HEREBY WAIVE MY RIGHTS UNDER [THE ACT], ANY OTHER STATUTE, OR COMMON LAW TO BRING LEGAL ACTION AND RECOVER JUDGMENT AGAINST THE COMPANY, AND/OR ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES, FOR ANY DAMAGES SUSTAINED BY REASON OR ANY PERSONAL INJURY RECEIVED IN THE COURSE OF MY EMPLOYMENT BY THE COMPANY, OR BY REASON OF DEATH RESULTING FROM SUCH INJURY. BY ELECTING TO ENROLL IN THE PLAN, I AGREE THAT BENEFITS PAYABLE UNDER THE PLAN SHALL BE THE EXCLUSIVE REMEDY FOR ME OR MY LEGAL BENEFICIARIES ARRIVING FROM SUCH ANY PERSONAL INJURY OR DEATH.
Id.
(4) Brito reported to Intex that on or about September 19, 1992, he sustained an on the job injury. Materials, Exhibit "1" at 3.
The court concludes that, by his execution of the waiver on August 25, 1992, Brito waived his right to recover for the causes of action he presently asserts. The waiver constitutes a condition contained in an employee benefit plan, as defined by the Employee Retirement Income Security Act ("ERISA"). 29 U.S.C. §§ 1001-1461 (1985). Nevertheless, because Brito's negligence and gross negligence claims do not "relate to," and are thus not preempted by, ERISA, the operation of the waiver upon such claims is to be determined under Texas law principles. See Texas Health Enterprises v. Reece, 44 F.3d 243, 244-45 (5th Cir.1994); see also Hook v. Morrison Milling Co., 38 F.3d 776, 779 n. 4 (5th Cir.1994).
Under Texas law, the elements Intex's waiver defense are: (1) the existence of a right held by the waiving party; (2) knowledge, actual or constructive, by that party of its existence; and (3) an actual intent by that party to relinquish the right, which can be inferred from conduct. Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex.App. Texarkana 1992, writ denied); FDIC v. Attayi, 745 S.W.2d 939, 946 (Tex.App. Houston [1st Dist.] 1988, no writ). The court finds that Intex has established by uncontroverted evidence the elements of waiver, that is, that *654 Brito had, as an employee of a nonsubscriber under the Act, the right to assert causes of action under the common law against Intex for job related injuries, he received notice of that right by the first paragraph of the waiver, and he voluntarily signed the waiver, thus inferring an actual intent to waive that right.
Brito cites two cases for the proposition that a waiver of the right to seek statutory or common law remedies for personal injuries suffered on the job is not enforceable: Texas Health Enterprises v. Kirkgard, 882 S.W.2d 630 (Tex.App. Beaumont 1994, writ requested) and Hazelwood v. Mandrell Indus. Co., Ltd., 596 S.W.2d 204 (Tex.Civ.App. Houston [1st Dist.] 1980, writ ref'd n.r.e.). Brito's reliance on them is misplaced. The statement of the court in Texas Health Enterprises, that an employment agreement that limited a nonsubscriber's liability for job related injuries is void, 882 S.W.2d at 634, was not only dictum, but is inapplicable to the instant action because there is no summary judgment evidence that Brito entered into an employment agreement limiting Intex's liability. Similarly, the Hazelwood court held that an employment contract is void where it limits a nonsubscribing employer's liability while concurrently preserving the common law defenses waived by the Act for such employers. Hazelwood, 596 S.W.2d at 206. Again, the evidence establishes that the waiver was not part of any agreement controlling Brito's employment. Accordingly, the holding in Hazelwood is inapplicable as well. The distinction between an employment contract that requires a prospective employee, as a condition to receipt or retention of employment, to agree to limit the employer's liability, on one hand, and a voluntary occupational insurance plan, in which the employee has the option to enroll in consideration for agreeing that such plan constitutes the exclusive remedy for job related injuries, on the other, is decisive.[4]
The court further concludes that Tex. Lab.Code.Ann. § 406.035, rendering void an agreement by an employee to waive his right to compensation, does not render the waiver void. Tex.Lab.Code.Ann. § 406.035 (Vernon 1994). The "compensation" to which such statute refers is defined by the Act as "payment" of a medical, income, death, or burial "benefit" based on a "compensable injury," which, in turn, is defined as "an injury that arises out of and in the course and scope of employment for which compensation is payable" under the Act. Tex.Lab.Code.Ann. § 401.011(5), (10), (11) (Vernon 1994). As Intex is a nonsubscriber under the Act, Brito had no right to receive "compensation," as that term is used in Tex.Lab.Code.Ann. § 406.035. Therefore, his execution of the waiver did not affect such a right.
Brito's affidavit testimony that he did not understand the "meaning and consequences" of the waiver, Response, Exhibit "A," is insufficient to create a fact issue relative to the validity of the waiver. Brito acknowledged, in the document he signed, that he "knowingly and voluntarily" entered into the agreement, and that he fully understood the meaning and effect of his action in executing it. Materials, Exhibit "1C". Absent fraud, duress, or mental incompetence, a party who intentionally signs a document is bound by its contents. See, e.g., Donovan v. Mercer, 747 F.2d 304, 308, n. 4 (5th Cir.1984). There is no summary judgment evidence that Brito was caused to sign the waiver by any of those things.
Inasmuch as the court finds that Brito's claims against Intex are barred by the waiver as a matter of law, there is no need to *655 address Intex's ratification and estoppel arguments.
V.
Order
Therefore,
The court ORDERS that Intex's motion for summary judgment be, and is hereby, granted, and that all claims or causes of action by Brito against Intex be, and are hereby dismissed.
The court finds that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of the claims of Brito against Intex.
NOTES
[1] Brito's response is subject to being stricken because he failed to list the disputed facts on which he relies and the issues of law. Rule 5.2(a) of the Local Rules of the United States District Court for the Northern District of Texas. In the future, the court expects, without exception, strict compliance with all applicable authorities.
[2] Supporting this assertion, Intex argues that equity principles prohibit Brito from retaining benefits received under the plan, such that, even if the waiver is invalid, Brito's retention of benefits received under the plan constitute a ratification the plan and all terms and obligations contained therein. Id.
[3] The summary judgment record also establishes that Intex amended the plan sometime after Brito was injured, that Brito elected to enroll in the plan as amended, and that he signed a second waiver in February 1993. While these facts may be relevant to Intex's ratification argument, they do not bear on the validity of the waiver because Brito was injured prior to the signing of the second waiver.
[4] An employee of Intex has a choice of whether to enroll in the plan. His employment status is unaffected by the choice he makes. If he enrolls, he is relieved of the burden he otherwise would have of proving Intex's negligence, or the absence of his own negligence, to recover benefits for job related injuries; and, in consideration for that right, the employee agrees to waive his right to recover under a statute or common law. Should he choose to not enroll, he would continue to have all rights available under Texas law to bring an action against a nonsubscribing employer to recover for loss resulting from an on-the-job injury, including the right to not have to overcome the employer's common law defenses should such an action be brought. Tex.Lab.Code Ann. § 406.033 (Vernon 1994). Accordingly, the main purpose of the Act, to protect and benefit the employee, is not contravened by the existence of the plan and its concomitant waiver. See Hazelwood, 596 S.W.2d at 206. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264669/ | 879 F.Supp. 1044 (1994)
UNITED STATES of America, Plaintiff-Respondent,
v.
John KELLY, III, Defendant-Petitioner.
Nos. CR-N-92-57-ECR, CV-N-94-396-ECR.
United States District Court, D. Nevada.
September 22, 1994.
*1045 Robert A. Bork, Asst. U.S. Atty., Reno, NV, for the U.S.
John Kelly, III, in pro. per., under supervision of U.S. Probation Dept., Denver, CO and Glynn Cartledge, Reno, NV, for John Kelly III.
No appearance on behalf of the U.S. in civil case.
ORDER
EDWARD C. REED, Jr., District Judge.
Defendant-Petitioner Mr. Kelly moves this Court to vacate, set aside or correct the sentence imposed pursuant to a criminal conviction in this Court. (Doc. # 29) Mr. Kelly makes this motion pursuant to 28 U.S.C. § 2255, the federal habeas statute.
The Government's response (Doc. # 32) to said motion concedes Mr. Kelly's argument and on that basis believes that Mr. Kelly's motion should be granted.
Mr. Kelly, pursuant to a conditional plea of guilty, was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (amended 1994). Section 922(g)(1) makes it "unlawful for any person (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition."
Mr. Kelly was previously convicted of felony receipt of stolen property in Colorado, a crime which is punishable by imprisonment for a term exceeding one year. In the spring of 1992, Mr. Kelly was discovered to be in possession of firearms, which resulted in the prosecution and guilty plea and conviction and ultimately the sentence from which Mr. Kelly now seeks relief.
Prior to the 1986 amendments,[1] any state proceeding expunging the state conviction had no effect on the federal question of what constituted a prior predicate "conviction" for purposes of § 922. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991-92, 74 L.Ed.2d 845 (1983). Accordingly under this standard Mr. Kelly's conviction and sentence in the instant case are valid.
In 1986 18 U.S.C. § 921 was amended as mentioned above by the Firearms Owners' Protection Act. Section 921(a)(20) as amended provides:
what constitutes conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.
[a]ny conviction ... for which a person ... has had civil rights restored shall not be considered a conviction for purposes of [§ 922(g)] unless such ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
18 U.S.C. § 921(a)(20)(B).
Under the amended statute, the Court therefore looks to the law of the jurisdiction where the prior conviction occurred, i.e., in our case the law of Colorado, to determine whether a claimed predicate conviction can *1046 be used under § 922(g). If the state court has expunged the sentence, it cannot be used as a predicate offense, unless the expungement expressly prohibits possession of a firearm by defendant.
Mr. Kelly argues that because Colorado automatically restores a felons civil rights upon completion of the sentence, see United States v. Hall, 20 F.3d 1066 (10th Cir.1994), and because there is no provision that he not be allowed to possess firearms, his Colorado felony conviction may not be considered a predicate conviction for purposes of § 922(g).
Thus, under federal law prior to the amendment of section 921(a)(20), [Mr. Kelly] would be "convicted" as that term is used in the federal firearms statutes. On the other hand, under amended section 921(a)(20), [Mr. Kelly's] state [convictions] ... [do] not constitute "convictions" under the firearms statutes, provided that [Colorado's restoration of civil rights] was not expressly qualified by any firearms restrictions.
United States v. Brebner, 951 F.2d 1017, 1022 (9th Cir.1991).
Our result is compelled by Brebner, in which the Court asked "whether amended section 921(a)(20) should be applied retroactively to offenses committed prior to its effective date." Id.
After resorting to the proper rules of statutory construction and divining Congress' intent, the Court concluded "that section 921(a)(20) cannot be retroactively applied to ... [predicate] offenses ... alleged to have occurred prior to ..." the enactment of 921(a)(20) which occurred in November of 1986. Id.
Thus, where the underlying felony conviction which is the predicate offense for a § 922(g) prosecution occurred prior to November of 1986, "the Dickerson interpretation of the term `conviction' controls ..." and the amended § 921(a)(20) does not apply.[2]
Mr. Kelly's felony conviction in Colorado occurred in 1984. Thus, we must apply the Dickerson interpretation of the term "conviction." Under that interpretation, it is irrelevant whether Colorado has restored all of Mr. Kelly's civil rights or not. Applying the Dickerson, interpretation, it is clear that Mr. Kelly's conviction is valid, insofar as satisfaction of the legal elements of the 922(g)(2) charge.
INEFFECTIVE ASSISTANCE OF COUNSEL
In the Motion pursuant to 28 U.S.C. § 2255 which is currently before this Court Defendant/Petitioner Mr. Kelly raises only one ground for vacating, modifying or correcting his sentence. That ground is that the "sentence imposed was not authorized by law ..." because there was no cognizable underlying "conviction" to support the § 922(g)(2) conviction in light of § 921(a)(20). It appears that Mr. Kelly originally contemplated bringing a claim of ineffective assistance of counsel, however he has not done so and the Court therefore does not address this claim.
IT IS, THEREFORE, HEREBY ORDERED that Defendant/Petitioner, Mr. Kelly's motion to vacate, set aside or correct sentence (Doc. # 29) brought pursuant to 28 U.S.C. § 2255 is DENIED. 18 U.S.C. § 921(a)(20) does not apply retroactively to offenses punishable by more than a year imprisonment which resulted in conviction prior to November 1986. Mr. Kelly's conviction under 18 U.S.C. § 922(g)(2) was proper *1047 and therefore the sentence imposed was authorized by law.
NOTES
[1] Which restructured federal firearms statutes in the Firearms Owners Protection Act, P.L. 99-308, §§ 102(6)(D), 102(7), 100 STAT. 452; P.L. 99-308, § 104(b), 100 STAT. 459 (1986); P.L. 99-308, § 110(a), 100 STAT. 460 (1986); and P.L. 99-308, § 101(5), 100 STAT. 450 (1986).
[2] It might be argued that Brebner is intended to apply only where (as in Brebner) the felon was found to possess the firearm prior to the enactment of the 1986 amendment. However, the Brebner decision focuses solely on the definition of what constitutes a predicate conviction and does not rely on the date the previously convicted felon is found in possession of the firearm. Brebner's claim was that his firearms convictions "should be reversed because his prior state felony convictions, which serve as predicate convictions ... have been expunged under state law ... these convictions occurred prior to November of 1986."
The pre-1986 statute is contrasted by the Brebner court with the new 1986 statute 18 U.S.C. § 921(a)(20) which defines what is a predicate crime that can be used in a § 922(g) prosecution. The Court deals only with the proper interpretation of § 921(a)(20). This is the crux of Brebner. The non-retroactivity rule of Brebner applies in the instant case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2569990/ | 188 P.3d 104 (2008)
2008-NMCERT-006
MASON
v.
BRAVO.
No. 31,142 (12-501).
Supreme Court of New Mexico.
June 12, 2008.
Denials of Certiorari. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1916276/ | 374 Pa. Super. 20 (1988)
542 A.2d 127
Joseph ALBERICI and, Theresa Alberici, Appellants,
v.
Nino V. TINARI, Esquire and Timothy Gorbey, Esquire, Appellees.
Supreme Court of Pennsylvania.
Argued January 12, 1988.
Filed May 6, 1988.
*21 Leonard Sarner, Philadelphia, for appellants.
Jeffrey B. Albert, Philadelphia, for Tinari, appellee.
Gordon Gelfond, Philadelphia, for Gorbey, appellee.
Before CAVANAUGH, ROWLEY and POPOVICH, JJ.
CAVANAUGH, Judge:
The primary issue in this case is whether a civil malpractice action against attorneys is barred where the federal court, in which the underlying criminal case was tried, has previously determined that counsel was not ineffective. The court below granted summary judgment in favor of the *22 defendants below, Nino V. Tinari, Esquire and Timothy Gorbey, Esquire, the appellees herein, and we affirm.
With respect to a motion for summary judgment, Pa.R. C.P. 1035(b) provides that such judgment may be entered if pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well-pleaded facts in the non moving party's pleadings, and give the non moving party the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987). However, a prima facie showing by the parties seeking summary judgment, i.e., the production of enough evidence to demonstrate such parties entitlement to a judgment if the evidence were uncontroverted at trial, shifts the burden of producing evidence to the party opposing the motion. In such circumstances summary judgment should be granted to the moving party unless the opposing party offers competent evidence admissible at trial showing that there is a genuine issue of material fact. Community Medical Services, Inc. v. Local 2665, 292 Pa.Super. 238, 437 A.2d 23 (1981).
When we are called upon to review an order granting summary judgment, our function is to determine whether there exists a genuine issue of material fact. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). We agree with the court below that the record demonstrates that there is no genuine issue of material fact, and that appellees are entitled to summary judgment as a matter of law.
*23 The criminal proceedings in the federal judicial system were extensive and complex and a recitation of what occurred there is necessary to an understanding of the case. The appellant, Joseph Alberici, was indicted in federal court in August, 1982, on six counts of mail fraud in connection with an alleged scheme to collect fire insurance proceeds as a result of an arson occurring on August 6, 1977. The arson centered around the Jerry Lewis Theater in Ashton, Pennsylvania which Alberici, by agreement of sale dated May 9, 1977, had agreed to purchase.
On November 16, 1982, prior to trial, a hearing was held before Federal District Court Judge Louis H. Pollak at which it was disclosed to Mr. Alberici that his trial counsel, Nino Tinari, Esquire, received a grant of immunity to testify as a witness before the Grand Jury in an unrelated criminal investigation. Alberici continued to have Mr. Tinari represent him in the criminal proceedings. Timothy Gorbey, Esq., entered his appearance as co-counsel for Mr. Alberici in November, 1982.
Trial was held in January, 1983 before Pollak, J. and a jury and the defendant was convicted of all six counts of the indictment. Shortly thereafter, Messrs. Tinari and Gorbey filed on his behalf timely motions for a new trial and judgment of acquittal under Rule 33 of the Federal Rules of Criminal Procedure. Motions were denied by the court in February, 1983. Thereafter, Mr. Alberici discharged Messrs. Tinari and Gorbey as his counsel and retained new counsel, Richard Sprague, Esq., who filed "Supplemental Motion for Judgment of Acquittal or, in the Alternative, for New Trial." This motion raised the issue of ineffectiveness of counsel on three specific grounds: (1) failure to investigate properly; (2) failure to obtain the attendance of or to call certain witnesses at trial; and (3) failure to represent the defendant at trial in a competent fashion.[1] On July 25, *24 1983 the District Court granted the motion for new trial on grounds separate from the issue of the ineffective assistance of counsel. Although the court referred to the issue, it specifically indicated that it was not determining the issue of ineffectiveness of counsel. As a result of the grant of the motion, Alberici's convictions on all six counts of the indictment were vacated. Subsequently, however, the District Court reinstated the conviction with respect to Count 5 and he was sentenced to imprisonment for 20 months.
Mr. Alberici appealed to the United States Court of Appeals, Third Circuit, from the judgment of sentence. He was represented by new counsel, Jeffrey Miller, Esq., who replaced Richard Sprague, Esq. Mr. Alberici now claimed ineffective assistance of trial counsel as a result of (1) failure to request an accomplice instruction and (2) failure to investigate the defense that another individual had a motive to burn down the theater. The Court of Appeals affirmed the judgment of sentence and ruled that counsel was not ineffective. Mr. Alberici, who was still represented by Mr. Miller, filed a petition for a writ of certiorari with the Supreme Court of the United States alleging, inter alia, ineffective assistance of counsel. The petition was denied in December, 1984.
Soon thereafter, Mr. Alberici retained new counsel, Richard M. Meltzer, Esq., who filed a motion for new trial in January, 1985 which was denied in August, 1985. In February, 1986, Mr. Alberici, through counsel, filed a motion to vacate, set aside or correct sentence under 20 U.S.C. § 2555 alleging again ineffective assistance of counsel. The motion was denied by order of Pollak, J. on December 2, 1986, who stated in his slip opinion: "As described above, defendant set forth an ineffective assistance claim in his second motion for new trial. We conclude that this claim was fully adjudicated on the merits in that motion and on direct appeal . . ."[2]
*25 Mr. Alberici filed an appeal from the order of December 2, 1986, which order was affirmed by the Court of Appeals in June, 1987. That court, speaking through Mansmann, J., held that the trial court did not abuse its discretion in denying Alberici's motion for collateral relief under 28 U.S.C. § 2255 without holding an evidentiary hearing. The Court of Appeals held that after a hearing on the defendant's second motion for a new trial, the District Court established that Alberici's trial counsel was competent and effective and that determination was upheld on appeal by the Court of Appeals for the Third Circuit.
In his civil complaint, Alberici claimed that Tinari and Gorbey breached their duties to him as his attorneys in that they and each of them:
A. Failed to investigate, interview and arrange for their attendance at the trial of [various witnesses and potential suspects].
B. Failed to examine and make effective use of [various records and documents].
C. Failed to request that the Trial Judge give an accomplice charge, since the prosecution depended very heavily on the testimony of persons allegedly linked with plaintiff Alberici in the alleged arson which was the focus of the alleged mail fraud.
*26 D. Failed to prepare adequately for meaningful cross examination and closing argument and for proper use of prior inconsistent statements to impeach and means to attack fabricated and highly prejudicial evidence, e.g. identity of escape car not owned by alleged arson accomplice at time of incident. (Paragraph 12 of the Complaint)
The Second Count alleged in paragraph 18 that:
"As a result of the malpractice of each of the Defendants as aforesaid, Plaintiff, THERESA ALBERICI, has been and may continue to be deprived of the society, companionship and consortium of her husband, JOSEPH ALBERICI."
The court below granted Tinari's and Gorbey's motions for summary judgment on the grounds that the federal adjudication of Mr. Alberici's ineffective assistance claim barred a civil malpractice action. There are no appellate decisions in this Commonwealth which deal directly with the issue before us. However, Reiger v. Ambrose, 38 Pa.D. & C.3d 430 (Erie County, 1986) decided by the Court of Common Pleas of Erie County is most instructive. In that civil case, the plaintiff had been charged with violating federal gambling laws. After dismissing his counsel and proceeding pro se, he was found guilty. He filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, as in the instant case, alleging ineffective assistance of counsel. A hearing was held in federal court and counsel was found to be effective. "Plaintiff, unsuccessful in his attempt to persuade the federal court of his trial counsel's ineffectiveness, filed this civil action [in the Court of Common Pleas of Erie County] alleging negligence and breach of contract." 38 Pa.D. & C.3d at 431. The court granted defendant's motion for summary judgment on the basis of collateral estoppel and stated at 38 Pa.D. & C.3d 433:
Plaintiff, against whom the doctrine of collateral estoppel is asserted, was clearly a party in the prior criminal action. He certainly had a full and fair opportunity to litigate the issue of ineffectiveness of counsel in the prior proceeding . . . Plaintiff was also represented by legal *27 counsel. The issue of ineffectiveness of counsel was not only essential to, but was the heart of plaintiff's motion to vacate sentence in the federal court criminal proceeding.[3]
In People ex rel. Snead v. Kirkland, 462 F. Supp. 914 (E.D.Pa. 1978), the plaintiff, who was convicted in federal court, sought damages against his defense counsel based on ineffective representation. The District Court held that the action was barred by collateral estoppel as the issue of effectiveness of counsel was raised and decided adversely to the plaintiff in his motion to vacate, set aside or correct the sentence. The question of collateral estoppel as a defense was carefully analyzed in "Criminal Malpractice: Threshold Barriers to Recovery Against Negligent Criminal Counsel," Duke Law Journal, 1981 page 542. The article refers to criminal malpractice as legal malpractice in the course of representing a criminal defendant. In discussing collateral estoppel, the author states:
III. COLLATERAL ESTOPPEL
The doctrine of collateral estoppel is a potential defense to any legal malpractice action. One application of the doctrine, however, is unique to criminal malpractice suits. A client who has unsuccessfully raised the constitutional claim of ineffective assistance of counsel in the underlying criminal action is estopped from relitigating identical issues in a subsequent malpractice action against his defense attorney.
.....
Applying this form of estoppel in a criminal malpractice action is justified only in certain circumstances. First, the issue barred from relitigation must be identical to an issue necessarily decided or actually adjudicated in the *28 prior proceeding. Second, the party against whom the defense is asserted must have had a full and fair opportunity to litigate the issues in the prior proceeding. In the context of criminal malpractice actions the second requirement generally presents no problem. The client had his day in court when his claim of ineffective assistance of counsel was litigated in the underlying criminal action. The first requirement, however that the issues be identical is not so easily satisfied.
.....
In some jurisdictions, however, courts apply different standards for judging the performance of counsel in malpractice actions than in ineffective assistance proceedings. The standard used in malpractice actions is relatively uniform: courts require attorneys to exercise that degree of skill and knowledge normally possessed by their colleagues. The standard used to determine whether a client has received constitutionally effective assistance of counsel, however, varies from jurisdiction to jurisdiction. The Supreme Court has held that the attorney's advice must be "within the range of competence demanded of attorneys in criminal cases." Most courts follow this standard, or the similar test of "reasonable competency." If the court determining the assistance of counsel claim uses this standard, the malpractice standard may be sufficiently analogous to provide the requisite identity of issues. (Emphasis added.) Pages 551-553
Footnote 60 follows the last sentence above quoted and states:
60. Some courts have forged standards for effective assistance of counsel that are virtually identical to legal malpractice standards. See, e.g., United States v. Hood, 593 F.2d 293, 297 (8th Cir. 1979) ("In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances."); Moore v. United States, 432 F.2d 730, 736 (3d *29 Cir. 1970) ("[T]he standard of adequacy of legal services. . . is the exercise of the customary skill and knowledge which normally prevails at the time and place.") (Emphasis added.) Page 553
In order to establish ineffective assistance of counsel, a defendant must show that his attorney's representation fell below an "objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, (1984). The appellees met this standard of reasonableness in the eyes of the federal court.
The appellants alleged in their complaint that the appellees "in the aforesaid criminal proceedings, failed to use that degree of skill, care, knowledge and attention ordinarily possessed and exercised by practitioners of the legal profession under like circumstances . . ." In other words, the complaint alleges failure to comply with the same standards as the federal court used in determining that counsel were not ineffective. See Moore v. United States, 432 F.2d 730 (3d Cir. 1970).
The doctrine of collateral estoppel[4] as applied in Pennsylvania requires that: (1) the issue decided in the prior litigation was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication and (4) the party against whom it was asserted had a full and fair opportunity to litigate the issue in question in a prior action. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983); Derry Township School District v. Day & Zimmerman, Inc., 345 Pa.Super. 487, 498 A.2d 928 (1985). The doctrine of collateral estoppel is a broader concept than res judicata and operates to prevent a question of law or issue of fact which has once been litigated and finally determined in a court of competent jurisdiction from being relitigated in a subsequent suit. Keystone Building Corporation v. Lincoln Savings and Loan Association, *30 468 Pa. 85, 360 A.2d 191 (1976), and Day v. Volkswagenwerk v. Aktiengesellschaft, supra.
The troublesome part in our application of the doctrine of collateral estoppel is whether the federal court finally adjudicated the same issues raised in the civil action commenced in the court below. We conclude that the issues were finally determined. The central theme in the various post-trial proceedings in the federal court was that trial counsel in the federal criminal trial were ineffective. In the motion for reconsideration of the defendant's motion for new trial, Mr. Sprague claimed ineffective assistance of counsel by virtue of failure to object to inadequacies of the court's charge to the jury. This is covered in paragraph 12(C) of the complaint. Also, in his appeal to the United States Court of Appeals for the Third Circuit, the appellant alleged ineffectiveness in failing to request an accomplice instruction. Paragraphs 12(A) and 12(B) set forth a cause of action based on improper defense of the criminal charges. This claim of inadequate defense was set forth not only in the motion for reconsideration of the defendant's motion for new trial, but also in his supplemental motion for acquittal. Subparagraph (D) also goes to improper defense and although it enunciates allegations that were not specifically raised in the proceedings in the federal court, they are only a facet of the broader concept of improper defense or ineffective assistance of counsel. There is nothing set forth in the civil complaint that was not ascertainable from the trial record in the District Court and available to the appellant and his subsequent counsel. The appellant has not claimed any malpractice on the part of subsequent counsel, and yet it would seem that if trial counsel were remiss, all aspects of their ineffectiveness would have been raised in the various proceedings in the federal court. Stated otherwise, Alberici's claim of malpractice is against only his trial counsel. Since there is no assertion of malpractice against subsequent counsel, we can assume that they did not fail to raise all claims of trial counsel's ineffectiveness that might have been raised. In any event, the appellant had the opportunity, which he properly exercised, of raising whatever *31 issues of ineffective defense counsel within the federal judicial system that he desired. Merely casting the basic complaints in different form in the civil action does not constitute the raising of new issues so as to bar the doctrine of equitable estoppel.
The necessary elements to prove a cause of action based on legal malpractice are: (1) the employment of the attorney or other basis for a duty on the part of the attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) negligence by the attorney which was the proximate cause of damage to the plaintiff. Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986). See also Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493 (1979); Ei Bon EE Baya Ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986).[5] In the case before us, the appellant has unsuccessfully raised the question of ineffectiveness of counsel at three levels in the federal judicial system and it has been definitively determined that counsel was not ineffective. Accordingly, his conviction in the federal district court has been affirmed. The second element of the tri-partite test has not been met.[6]
We hold as a matter of law that appellant has failed to set forth a cause of action. Cases from other jurisdictions support our conclusion. In Johnson v. Raban, Missouri Court of Appeals, 702 S.W.2d 134 (Mo.App. 1985), the court held that a dismissal with prejudice of a legal malpractice suit was proper where the court in a criminal trial determined that the plaintiff's lawyer was not ineffective. The court applied the doctrine of collateral estoppel or issue *32 preclusion.[7] In Vavolizza v. Krieger, 33 N.Y.2d 351, 352 N.Y.S.2d 919, 308 N.E.2d 439 (1974) the New York Court of Appeals held that the denial of a criminal defendant's motion to vacate a guilty plea in a criminal action acted to collaterally estop a later civil action brought against the attorney for malpractice based on the attorney's advice to plead guilty. In Garcia v. Ray, Civil Court of Appeals of Texas, 556 S.W.2d 870 (Tex.Civ.App. 1977), summary judgment was entered in favor of an attorney who was sued for malpractice by his former client in a criminal case. The client had been found guilty and had appealed on the grounds of ineffective assistance of counsel. The appellate court in the criminal case had determined that counsel was not ineffective and it was held that this barred the assertion of such a claim in a civil action.[8]
Where the issue of ineffectiveness of counsel has been fully explored in the criminal forum, and it has been determined that the counsel was not ineffective and the defendant's conviction has been sustained, it would be totally unreasonable to allow the question of effectiveness of counsel to again be questioned in a civil trial. Such a procedure would require a complete review of the criminal proceedings to determine if counsel did or did not act in such a way that his conduct, or lack thereof, prejudiced the criminal defendant. That question, having already been determined in the underlying criminal proceeding, may not again be the subject of judicial inquiry in a civil proceeding.
The appellant also contends that the court below erred in granting summary judgment on the present state of the *33 record. In Joseph Alberici's answer to motion for summary judgment, he does not object to the entry of summary judgment because of the state of the record, including incomplete discovery. It is well settled that issues not raised in the hearing court are not properly preserved for appellate review and will not be considered. Kovach v. General Telephone Co. of Pennsylvania, 340 Pa.Super. 144, 489 A.2d 883 (1985); Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983); Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983); O'Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980); Pa.R.A.P. 302(a).
Judgment affirmed.
NOTES
[1] In February, 1983 Mr. Sprague also filed motions for reconsideration of defendant's motion for new trial alleging ineffective assistance of trial counsel by virtue of counsel's failure to (1) investigate possible exculpatory testimony (2) object to inadequacies in the court's jury charge and (3) prepare the defense adequately as evidence by cross examination and closing argument.
[2] Pollak, J. further stated at pages 7 and 8:
In the usual case, a section 2255 motion is the first opportunity the sentencing court has to consider claims of ineffective assistance of counsel or failure to disclose evidence. An ineffective assistance claim cannot be brought until a defendant has abandoned his trial counsel; both types of claims are likely to require post-trial investigation. But the case before us is unusual. Defendant in this case obtained new counsel and was granted what became a lengthy continuance in order to raise his ineffective assistance claim through post-trial motions and on direct review. Defendant then used the procedural device of a third motion for new trial under Rule 33 to raise claims of failure to disclose evidence, claims that, as this court pointed out in its August 9, 1985 ruling, might more appropriately have been brought in a section 2255 motion. Applying the standard articulated in Palumbo to the record created by these proceedings, we conclude that defendant is not free to relitigate his claim in the motion he has at last brought pursuant to section 2255.
[3] The court noted in Reiger v. Ambrose, 38 Pa.D. & C.2d at 434:
Both the state and federal legislatures have provided to persons convicted of crimes an opportunity to second guess their counsel (28 U.S.C. § 2255 et seq. and 42 Pa.C.S. § 9541 et seq.) However, the doctrine of estoppel denies them a third guess.
[4] Collateral estoppel is also referred to as "issue preclusion". Commonwealth v. Winter, 324 Pa.Super. 255, 256, 471 A.2d 826 (1984).
[5] In this case we pointed out that a claim of ineffective assistance of counsel is tantamount to an allegation of incompetency. We held that the fact that a criminal defendant may have a remedy within the state criminal justice system under the Post Conviction Hearing Act does not preclude him from pursuing civil remedies based on the alleged negligent conduct of the attorney. This ruling does not affect the doctrine of collateral estoppel where the issue of ineffectiveness of counsel has been thoroughly considered and it has been definitively decided that counsel was not ineffective.
[6] As Joseph Alberici has not set forth a cause of action, the Second Count pertaining to Theresa Alberici's claim must also fail as it is a derivative action.
[7] The court added at 702 S.W.2d 138: "Finally, public policy dictates that a person convicted of a crime who has failed in his attack upon his conviction both directly and collaterally should not be permitted to recover against his attorney in a civil malpractice action for damages allegedly arising out of the attorney's handling of his defense."
[8] The court stated at 556 S.W.2d 872:
The standard of proof generally in a criminal case is usually different than in civil actions. However, on the other hand, how could you test the adequacy of counsel any better than by having the direct point determined by the highest court of our State in the related criminal case? | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2739109/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 196 WAL 2014
:
Respondent :
: Petition for Allowance of Appeal from the
: Order of the Superior Court
v. :
:
:
ANDRE DAVIS, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 1st day of October, 2014, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 10-01-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1355453/ | 158 S.W.3d 841 (2005)
STATE of Missouri, Respondent,
v.
Raymond BROOKS, Appellant.
No. ED 84348.
Missouri Court of Appeals, Eastern District, Division Three.
March 29, 2005.
*845 S. Kristina Starke, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
NANNETTE A. BAKER, Judge.
Raymond Brooks ("Defendant") appeals from a judgment of the Circuit Court of the City of St. Louis entered after a jury convicted him of burglary in the second degree, felony stealing over $500, and felony resisting arrest. He was acquitted of one count of possession of burglar's tools. On appeal, Defendant alleges that the trial court erred in: (1) denying Defendant's motion for judgment of acquittal as to burglary in the second degree because the evidence was insufficient to sustain the conviction; (2) denying Defendant's motion for judgment of acquittal as to felony stealing because the evidence was insufficient to sustain the conviction; and (3) denying Defendant's motion for judgment of acquittal as to felony resisting arrest because the evidence was insufficient to sustain the conviction. We affirm in part and reverse in part.
Background
Around 4:00 a.m. on February 10, 2003, witnesses saw two men wearing hooded shirts enter a "Cigarettes for Less" store through a broken window. The men exited the store and threw boxes of cigarettes into a red pickup truck with a silver metal toolbox. The truck went east on Chippewa. The witnesses called 911, and Officer *846 Robert Farrow ("Officer Farrow") responded. As Officer Farrow traveled west on Chippewa toward the store, he saw a truck matching the description of the burglars' truck traveling east on Chippewa.
Officer Farrow made a U turn and, as he waited for a red light to change, he activated the lights on his patrol car. The truck drove through the red light when Officer Farrow activated his car's lights. He continued to follow the pickup truck and momentarily lost sight of it. He turned left onto Tedmar and found the truck he had been following abandoned on the front lawn of a residence. There were fresh footprints in the snow directly outside the truck. In the bed of the pickup Officer Farrow found a trash bag, cartons of cigarettes, one hundred and twenty-six lighters and a roofer's hammer mounted on a piece of pipe. In the cab he found a black jacket and a knit cap.
The police took Brian Mueller, a witness who saw the burglar's pickup truck outside the "Cigarettes for Less" store, to the abandoned truck Officer Farrow had pursued. Mr. Mueller said he was certain that the truck was the same one he had seen in the parking lot outside the store. Officer Farrow called in a canine officer to assist in searching for the occupants of the truck. Officer James Siebum ("Officer Siebum") and his police dog, Canine Officer Glis, ("Glis") responded. Officer Farrow stayed with the abandoned pickup during the entire incident.
Officer Siebum learned that there were footprints that suddenly stopped near vehicles parked in a driveway down the street. Glis pulled on his lead and tried to get under the vehicles. Officer Siebum announced twice that he was an officer and that he had a dog. He commanded Glis to "find him" and Glis went underneath a truck and pulled out Wilbert Hunter ("Hunter") who had been hiding under the axle of the truck. It is unclear from the record whether Hunter was found under the truck used in the burglary or under a different truck.
Officer Siebum and Glis then went to the abandoned truck on Tedmar that had been driven by the burglars. Officer Siebum discovered footprints leading from the driver's side of the vehicle through several yards. Glis smelled the area around the driver's side door and driver's seat and followed the scent alongside the footprints. Glis followed the scent through yards and beyond some footprints. Officer Siebum and Glis then backtracked and saw that the footprints had veered to the right and stopped under a shed window that was missing the frame and glass. Glis put his paws on the window and started barking. Officer Siebum believed the other burglary suspect was inside the shed so he announced he was a canine officer and had a dog. He said that if the suspect did not come out he would release the dog. When there was no response, Officer Siebum released Glis and the dog jumped through the window. Glis apprehended Defendant by biting him on the hand until Officer Siebum came inside the shed and removed Glis.
Other officers responded to the "Cigarettes for Less" store where the owner told the police that boxes of cigarettes were missing. There was a trashcan near the store that had the plastic liner removed. Sixty cartons of cigarettes were returned to the owner intact. Some cartons were returned damaged and some were not returned at all because they had flown out of the back of the truck as it was driven away. According to the evidence at trial, the value of the cigarettes returned was $1,920.00 and the value of the lighters was $348.00.
At the close of the evidence and following arguments of counsel, the jury found *847 Defendant guilty of second degree burglary (Count I), stealing (Count II), and resisting arrest (Count III). The jury found Defendant not guilty of possessing burglar's tools (Count IV). On March 19, 2004, appellant was sentenced as a persistent offender to concurrent sentences of eight years for second degree burglary, eight years for stealing and seven years for resisting arrest. This appeal follows.
On appeal, Defendant contends that the trial court erred in denying Defendant's motion for judgment of acquittal as to Counts I, II and III and submitting Counts I, II and III to the jury because the evidence was insufficient to support a conviction of burglary in the second degree, stealing over $500 and felony resisting arrest. Defendant also asserts that the trial court erred in allowing certain remarks made by the prosecutor during final summation.
Standard of Review for Sufficiency of Evidence
The standard for reviewing claims challenging the sufficiency of evidence is well-established. State v. Clay, 975 S.W.2d 121, 139 (Mo.1998). On review, the Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. Id. In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. In considering whether the evidence is sufficient to support the verdict, this Court considers whether a reasonable juror could find each element of a crime beyond a reasonable doubt. Id. When reviewing for sufficiency of the evidence, circumstantial evidence is afforded the same weight as direct evidence. State v. Hutchison, 957 S.W.2d 757, 767 (Mo. banc 1997). If there actually is insufficient evidence to support a guilty verdict, then a directed verdict of acquittal is authorized. State v. Holloway, 992 S.W.2d 886, 889 (Mo.App. S.D.1999).
Discussion
Count I: Burglary in the Second Degree
In his first point on appeal, Defendant contends that the trial court erred in denying Defendant's motion for judgment of acquittal at the close of the evidence and submitting the count to the jury because the State's evidence was insufficient to prove that Defendant committed the crime of burglary in the second degree. He maintains that there was no evidence that Defendant was ever inside the Cigarettes for Less store or that he conspired with Mr. Hunter to commit the charged crime. We find no error and affirm.
After reviewing all of the evidence presented at trial, this court has determined that there was sufficient evidence for a reasonable juror to find each element of the crime of burglary in the second degree. The evidence connecting the pickup truck to the burglary was substantial. A witness to the burglary identified the truck as the truck used in the burglary. An officer pursued a truck matching the description and traveling in the same direction as the truck used in the burglary. The officer lost sight of the truck momentarily, but when he found the truck parked it contained cartons of cigarettes and lighters. There is sufficient evidence for a juror to conclude that the truck found on Tedmar by Officer Farrow was the same truck used in the burglary.
The jury was instructed on the responsibility Defendant would have for the *848 conduct of another under Section 562.041.[1] Under this statute, a person is responsible for the conduct of another if, either before or during the commission of an offense and with the purpose of promoting the commission of the offense, a person aids or agrees to aid or attempts to aid the other person in planning, committing or attempting to commit the offense. Thus, the State would have to prove that Defendant aided or agreed to aid Hunter in planning or committing the burglary. While evidence connecting Defendant to the truck was circumstantial, it is afforded the same weight as direct evidence. Defendant was found at the end of a trail of footprints leading from the driver's side of the truck used in the burglary. Therefore, it would be reasonable for the jury to infer that defendant was in the truck and was either directly involved or aided Hunter in committing the burglary.
The State also had to submit sufficient evidence for a reasonable juror to conclude that either the defendant or Hunter committed every element of the burglary offense. Section 569.170 says a person commits burglary in the second degree when he knowingly enters unlawfully or remains unlawfully in a building or inhabitable structure for the purpose of committing a crime. Evidence of each of these elements was presented by the State. The State presented evidence that Defendant or Hunter knowingly entered when he broke a window and entered the store. The State presented evidence that Defendant or Hunter entered the store unlawfully as the owner of the store testified they did not have permission to enter or be there. The State also presented evidence that cigarettes and lighters were stolen from the store. The jury was free to infer that Defendant or Hunter broke the window and entered the store for the purpose of stealing the cigarettes.
If a jury is convinced beyond a reasonable doubt, we need not disturb the result simply because the case depended wholly or mostly upon circumstantial proof, so long as the evidence meets the minimal appellate standard required by due process. State v. Grim, 854 S.W.2d 403, 406 (Mo. banc 1993). Here, the jury was convinced beyond a reasonable doubt, and evidence was presented on every element of the crime charged. Even though much of the evidence was circumstantial, circumstantial evidence is given the same weight as direct evidence and the jury is free to make reasonable inferences from the evidence presented. The fact that there were no eyewitness identifications, fingerprints, footprint identifications or security camera tapes was an argument presented to and rejected by the jury. Under Missouri law, appellate courts do not review what evidence was absent, but instead review the sufficiency of the evidence that was presented. See Clay, 975 S.W.2d 121. We find there was sufficient evidence of burglary in the second degree. This point is denied.
Count II: Stealing Over $500
As his second point on appeal, Defendant maintains that the trial court erred in denying his motion for acquittal and submitting to the jury on Count II because there was insufficient evidence to sustain a conviction of felony stealing over $500.00. For his second point, Defendant again argues that the circumstantial evidence was inadequate to support the inferences made by the jury. Defendant also maintains that the evidence was insufficient by arguing what evidence was not presented by the State. However, as stated *849 above, this court reviews the sufficiency of the evidence presented. The cases cited by Defendant under this point are not persuasive.
In State v. Watkins the court found the evidence insufficient to sustain a conviction and reversed. 804 S.W.2d 859 (Mo.App. E.D.1991). However, Watkins is distinguishable from this case. In Watkins the defendant was charged with felony property damage, and an element of felony property damage is damage over $1,000.00. Id. at 860. The court in Watkins found that there was no evidence presented for the dollar amount of the property damage. Id. at 861. Thus, one element was entirely lacking evidence. However, that is not the case here. In this case, the State presented evidence, though some of it circumstantial, of every element of the crime charged.
For a defendant to be found guilty of stealing over $500.00 under Section 570.030,[2] the State must prove that defendant: 1) appropriated the property of another 2) valued at $500.00 or more, but less than $25,000.00 3) with the purpose to deprive him or her thereof 4) without his or her consent.
As we determined above, there was sufficient evidence for the jury to find that, even if Defendant did not enter the store himself, he was still responsible for the crime under Section 562.041. Similarly to Point I, Defendant does not point to any specific element for which the evidence was lacking. Upon examination, we find that there was sufficient evidence for a reasonable juror to find each element of the crime of stealing over $500.00.
The first element a juror would have to find is whether Defendant appropriated the property of another. Defendant was found at the end of a trail of footprints leading from the truck used in the burglary. The cigarettes stolen from the store were in the truck. A juror could reasonably infer that the Defendant or Hunter appropriated the cigarettes and the cigarettes were the property of the store owner. A juror could also find that the stolen goods were valued over $500.00, because there was testimony that the value of the cigarettes was $1,920.00 and that the value of the lighters was $348.00. Furthermore, since the goods were taken from the store at night during a break-in, it would be reasonable for a juror to conclude that Hunter and Defendant did not intend to return the cigarettes to the owner and their purpose was to deprive the owner of them. This court does not find evidence lacking for any element of the crime of stealing over $500.00 and accordingly, this point is denied.
Count III: Resisting Arrest
On his third point on appeal, Defendant asserts that the trial court erred in overruling the judgment of acquittal and submitting Count III to the jury because there was insufficient evidence to uphold a conviction of felony resisting arrest. Section 575.150[3] states:
A person commits the crime of resisting or interfering with arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening *850 the use of violence or physical force or by fleeing from such officer; or
(2) Interferes with the arrest, stop or detention of another person by using or threatening the use of violence, physical force or physical interference.
5. Resisting or interfering with an arrest for a felony is a class D felony. Resisting an arrest by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony; otherwise, resisting or interfering with an arrest, detention or stop is a class A misdemeanor.
Jury Instruction Nine stated:
As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that on February 10, 2003, in the City of St. Louis, State of Missouri, Robert Farrow was a law enforcement officer, and
Second, that Robert Farrow was making an arrest of the defendant for burglary in the second degree, and
Third, that defendant 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 of making the arrest, the defendant resisted by fleeing from the officer, then you will find the defendant guilty under Count II 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.
Defendant maintains that the trial court erred in submitting this instruction to the jury because Defendant was charged with resisting arrest by fleeing, not by hiding, which is what defendant was doing in the shed. Defendant also maintains that the State presented no evidence establishing that it was Defendant who fled from Officer Farrow. Defendant urges us to reverse his conviction and discharge him from the sentence imposed. The State concedes that the trial court did err in entering a verdict on Count III for felony resisting arrest, stating that the evidence was only sufficient to show misdemeanor resisting. The State asks us to reverse the judgment for felony resisting and remand to the trial court with an order to enter a verdict for misdemeanor resisting arrest with a re-sentencing. We find that there is insufficient evidence in this case to support a guilty verdict for resisting arrest. The conviction for Count III is reversed.
As is stated above, this Court determines whether a reasonable juror could find each element of a crime beyond a reasonable doubt. Clay, 975 S.W.2d at 139. When considering the evidence, circumstantial evidence is afforded the same weight as direct evidence. Hutchison, 957 S.W.2d at 767. Only when there is insufficient evidence to support a guilty verdict is a directed verdict of acquittal is authorized. Holloway, 992 S.W.2d at 889.
In a case from the Western District, the resisting arrest statute did not apply to a motorist's flight from a traffic stop initiated by police officer turning on lights and siren in an attempt to stop an automobile. State v. Dossett, 851 S.W.2d 750, 752 (Mo.App. W.D.1993). The court held that there was insufficient evidence to uphold a conviction for resisting arrest. Id. The court in Dossett relies on State v. Long, which states that the gravamen of the offense is resisting an arrest, not flight *851 from an officer. 802 S.W.2d 573, 575-576. Accordingly, the offense of resisting arrest cannot occur unless a law enforcement officer actually contemplates an arrest. Id.
Before we begin our analysis, it should be made clear that Defendant was charged with resisting arrest by Officer Farrow, the officer who followed the suspect truck. He was not charged with resisting arrest by Officer Siebum, the officer who found him in the shed. Arguments made by the parties regarding Defendant's encounter with Officer Siebum are misplaced and are not material to whether Defendant resisted arrest by Officer Farrow. It follows that any facts pertaining to Defendant's encounter with Officer Siebum are immaterial to our review.
With this in mind, we review the jury instructions. The jurors were instructed to find Defendant guilty if they found that, on February 10th 2003, (a) that Robert Farrow was a law enforcement officer and that (b) he was making an arrest of the defendant for burglary in the second degree; (c) that Defendant reasonably should have known that a law enforcement officer was making an arrest of Defendant and (d) that, for the purpose of preventing the law enforcement officer from making the arrest, Defendant resisted by fleeing from the officer.
While evidence was presented that Robert Farrow was a law enforcement officer, there was no evidence presented indicating that Officer Farrow was making an arrest of the Defendant. Officer Farrow testified that when he saw the truck, he did a U turn and followed the truck going east on Chippewa. He then testified that, at the intersection of Chippewa and Hampton, he turned on his emergency lights, but he did not turn on the siren. Officer Farrow continued to follow the truck at a slow speed because the streets were snowy. When the truck turned on Tedmar, Officer Farrow testified that he was about three blocks behind the truck traveling at around 25 miles per hour. He turned onto Tedmar, where he found the truck parked on a lawn, empty of occupants. This was the extent of the testimony about Officer Farrow following the pickup truck. He never testified about his intent when he turned on his emergency lights and he did not discuss whether he planned to arrest the occupants of the truck.
Accordingly, it would be impossible for a jury to find that Officer Farrow was making an arrest of the occupants of the truck. While it may be possible to infer from the facts that Officer Farrow was making an investigatory stop, the facts that Officer Farrow did not turn on his siren and did not follow closely behind the suspect truck are significant. Though the State never elicited any such testimony, it proposes in its brief that Officer Farrow did not intend to arrest the occupants of the truck, but to make an investigatory stop. From this we determine that a reasonable juror could not have found that Officer Farrow intended to arrest Defendant.
A jury could not infer from the evidence presented that Defendant reasonably should have known that Officer Farrow was making an arrest. In State v. Chamberlin, the court found that there was sufficient evidence for the jury to infer that the defendant should have known the trooper pursuing him was making an arrest, but the facts in that case are distinguishable from the facts at issue here. See 872 S.W.2d 615 (Mo.App. W.D.1994). In Chamberlin, evidence was presented that the trooper intended to arrest the driver of the vehicle. Id. at 618. The trooper pursued a vehicle at high speed with lights and siren activated. Id. When the vehicle stopped and the driver fled on foot, the trooper yelled at the driver to stop, drew his weapon and continued in *852 pursuit. Id. at 619. The court found that from this evidence, a jury could have found Defendant guilty of resisting arrest. Id.
However, in this case, Officer Farrow did not use his sirens, pursue the truck at high speed nor did he pursue on foot shouting and wielding a weapon. He followed the truck at a normal speed only activating his lights. We find that on these facts, coupled with the lack of testimony that Officer Farrow actually did intend to arrest the occupants of the truck, the State did not meet its burden and a reasonable juror could not have found that Defendant should have known that he was being arrested. The trial court erred in submitting Count III to the jury and denying Defendant's motion for acquittal on this count.
The State requests that we remand to the trial court with an order to enter a verdict for misdemeanor resisting arrest and appropriate re-sentencing. In support of this contention, the State cites State v. Dooley, which states: When a conviction of a greater offense has been overturned for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense. 919 S.W.2d 539, 542 (Mo.App. E.D.1995). This rule does not apply in this case.
Under the rule, the jury must have been required to find all elements of the lesser offense to convict on the greater offense. Dooley, 919 S.W.2d at 542. In this case, though, the jury was not required to find the elements of misdemeanor resisting arrest in order to convict for felony resisting arrest. For misdemeanor resisting arrest, the jury would be required to find that Officer Farrow was making an investigatory stop of Defendant, Defendant knew he was making a stop, and that for the purpose of preventing the stop, resisted by fleeing from the officer. See MAI-CR 3d 329.61. However, the jury was instructed to find that Officer Farrow was arresting defendant, not stopping or detaining him. The facts needed to determine whether an officer was making a stop versus the facts needed to determine if an officer was making an arrest are different. The jury did not get a chance to consider whether Officer Farrow was making a stop. Though the State purports that this is what Officer Farrow was doing, there was no such evidence presented at trial. Thus, the judgment is reversed and the sentence entered for Count III is vacated.
Prosecutor's Remarks during Closing
Appellant contends that the trial court erred in permitting certain remarks by the prosecutor during closing argument. Those comments will be set forth and analyzed in the order they were argued.
The trial court has broad discretion in controlling the scope of oral argument and its rulings will not give rise to reversible error absent an abuse of discretion resulting in prejudice to the defendant. State v. Martin, 103 S.W.3d 255, 264 (Mo.App. W.D.2003). The trial court's rulings in allowing or rejecting argument of counsel are reversible for an abuse of discretion only where the argument is plainly unwarranted. State v. Sandles, 740 S.W.2d 169, 176 (Mo. banc 1987). If the prosecutor's improper remarks were made during rebuttal argument, the trial court can consider whether the argument was invited. State v. Murphy, 739 S.W.2d 565 (Mo.App. E.D.1987).
I.
The first remark challenged by defendant was stated during closing argument.
*853 "Now, I told you in jury selection ... that this was not going to be a case in which someone was going to stand up and say, yes, I saw that man ... commit the crime ... you said you didn't need that type of identification ... [s]o I'm holding you to that now ... I told you you weren't gonna get it; you didn't get it, and you said it wouldn't matter."
Defendant alleges that this statement constituted a "call for commitment," requesting the jurors to commit to a "promise" they made during voir dire that they did not need direct evidence to convict. Defendant contends that this comment suggested to jurors that they were required to convict regardless of how tangential the State's case was. He maintains that the comment impermissibly shifted the burden of proof by convincing the jurors that they could convict based on whatever evidence the State presented. During trial, Defendant did not object to this comment, but now requests we review for plain error.
A claim of plain error alleging errors committed in closing arguments does not justify relief on appeal unless determined to have a decisive effect on the jury. State v. Schlup, 785 S.W.2d 796, 802 (Mo.App. W.D.1990). A prosecutor's statement has a decisive effect if there is "a reasonable probability that the verdict would have been different had the error not been committed." State v. Johns, 34 S.W.3d 93, 116 (Mo. banc 2000). In determining whether reversal is required, the court can consider whether the effect of "multiple errors" in the prosecutor's argument was "cumulative and egregiously prejudicial." Burnfin, 771 S.W.2d at 912-13.
The burden is on the defendant to demonstrate the "decisive effect of the statement." State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993), cert. denied, 506 U.S. 1014, 113 S. Ct. 636, 121 L. Ed. 2d 566 (1992). For such a decisive effect to occur, "there must be a reasonable probability that, in the absence of these comments, the verdict would have been different." State v. Roberts, 838 S.W.2d 126, 132 (Mo.App. E.D.1992). Under Rule 30.20, plain error will seldom be found in unobjected-to closing argument, since a holding that would require the trial judge to interrupt counsel would present myriad problems. State v. Radley, 904 S.W.2d 520, 524 (Mo.App. W.D.1995). Trial judges are not expected to assist counsel in trying cases, and trial judges should act sua sponte only in exceptional circumstances. Id.
Defendant argues throughout his brief that the evidence in this case was thin and lacking and as a result contends that this comment had a decisive effect on the jury. However, as we discussed above, the evidence was sufficient for a reasonable juror to convict Defendant under Counts I and II. Furthermore, we also do not believe the comment was one that would warrant a sua sponte interruption of counsel under Radley. Accordingly, we find that this statement did not have a decisive effect on the jury and that the trial court did not err in failing to sua sponte instruct the jury to disregard the comment.
II.
Secondly, Defendant claims the statement, "[Mr. Brooks] sat and ... listened to all the evidence that the State presented and he thought in his mind, how could he concoct a story that places him in the shed" was an improper attack on defense counsel. A prosecutor may "comment on the credibility of the defendant as a witness and assert the improbability and untruthfulness of his testimony." State v. Burnett, 931 S.W.2d 871, 875 (Mo.App. W.D.1996). However, personal attacks by the prosecutor on defense counsel are improper *854 and objectionable. State v. Reyes, 108 S.W.3d 161, 170 (Mo.App. W.D.2003).
Defendant argues that suggesting that Defendant concocted the defense during trial was denigrating to both Defendant and defense counsel. Because appellant did not object to the prosecutor's remarks at trial on the grounds that they denigrated defense counsel, this particular issue is not preserved for appellate review because the grounds asserted on appeal are limited to those stated at trial. State v. Ellsworth, 908 S.W.2d 375, 378 (Mo.App. E.D.1995). Appellant may not broaden the objection presented to the trial court, or rely on a theory different than the one offered at trial. Id. Where the grounds have been changed on appeal, nothing has been preserved for review. Id. Because appellant's theory on appeal is different from the objection he asserted at trial, reversal would be appropriate only if the appellate court finds plain error. State v. McKibben, 998 S.W.2d 55, 60 (Mo.App. W.D.1999).
As stated above, a claim of plain error alleging errors committed in closing arguments does not justify relief on appeal unless it is determined to have a decisive effect on the jury and there is "a reasonable probability that the verdict would have been different had the error not been committed." Johns, 34 S.W.3d at 116.
The argument that this comment was denigrating to defense counsel is tenuous at best. We are not persuaded the State was even making reference to defense counsel. The defense attorney was not mentioned, directly or indirectly. Essentially, the Defendant urges us to find that the comment implicitly accused defense counsel of taking part in "concocting" the defense. However, under that reasoning, any time the State referred to possible misconduct of a defendant during trial, it would be making an implicit attack on defense counsel. We find that the State's argument that appellant "concocted" a story was not an attack on defense counsel, but was a permissible argument as to Defendant's credibility. See State v. Rath, 46 S.W.3d at 604, 609 (Mo.App. S.D.2001). As the comment was not improper, failing to instruct the jury sua sponte to ignore the comment was not plain error.
III.
Third, appellant argues that the statement "Where is Lisa Chapman?... don't be fooled because the defense has the same power that the State does to subpoena witnesses and get them into court" shifted the burden of proof to defendant to prove he did not commit the charged crimes and created a false issue. Defendant relies on his contention that the State's evidence was weak and there is a reasonable possibility the jury's verdict would have been different if the court had sustained defense counsel's objection.
Again, the Defendant's argument has not been preserved for appeal. Grounds asserted on appeal are limited to those stated at trial and appellant cannot rely on a theory different than that offered at trial. Ellsworth, 908 S.W.2d at 378. Because appellant did not object to the prosecutor's remarks at trial on the grounds that they shifted the burden of proof, but rather on relevance, this particular issue is not preserved for appellate review. Furthermore, we construe the remark in the present case as a comment on the absence of evidence and the weakness of Defendant's theory of the case. In addition, this comment was invited by defense counsel. Although, as Defendant argues, defense counsel did not mention Ms. Chapman's absence at trial during closing argument, there were several references to her in the argument that appellant's story of how he came to be hiding in the *855 shed was believable. "A prosecutor has considerable leeway to make retaliatory arguments in closing. A defendant may not provoke a reply and then assert error." Middleton v. State, 80 S.W.3d 799, 814 (Mo. banc 2002).
IV.
Lastly, appellant argues that an improper argument was made when the prosecutor stated during closing:
Now, you may be asking yourself, why should I care about this case? It's a cigarette store ... Stealing is a major problem in this city ... People are fed up ... And what do they do? They leave. They go to St. Louis County.
A.
Arguments that appeal to the jury to convict the defendant to prevent him from committing future crimes of the same nature are improper. Murphy, 739 S.W.2d at 571 (finding argument that "we don't need burglary in this town ... and we don't need [the defendant] committing burglary ... you really, really need to put a stop to it" improper but not plain error). Likewise, a prosecutor's argument of facts outside the record "is highly prejudicial." State v. Storey, 901 S.W.2d 886, 900 (Mo. banc 1995). Furthermore, "[t]he prosecutor may not personalize his argument to the jury." State v. Raspberry, 452 S.W.2d 169, 172 (Mo. banc 1970). A prosecutor improperly personalizes argument when he "asks the jurors to place themselves or some other identifiable person in the shoes of the victim or at the crime scene." Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000). However, the prosecutor is permitted to argue general propositions regarding the prevalence of crime in the community, the personal safety of the community's citizens, and the jury's duty to uphold the law. State v. Plummer, 860 S.W.2d 340, 350 (Mo.App. E.D.1993).
Defendant argues that the prosecutor personalized the argument and claimed knowledge of facts outside the record. He submits that this comment is an impermissible personalization. Defendant also maintains that by telling the jury they should show they care about the "major problem" of stealing in the City of St. Louis by convicting Mr. Brooks, the prosecutor suggested that Mr. Brooks should be held responsible for all the theft in the City and personally deterred from committing future crimes.
We disagree. The comment in this case was not an improper personalization. The State did not ask the jury to put themselves in the place of the cigarette store owner or any other identifiable person involved in the crime. The general question "[W]hy should I care" did not put the jury "in the shoes" of the victim or at the crime scene. Instead, it was a plea to the jurors to uphold the law regardless of what they think about cigarette stores. As for the argument that this comment improperly implies that Defendant should be personally deterred from committing future crimes, neither the Defendant nor deterrence was mentioned. The statement was very general and we are not persuaded that in any way was it a comment on personally deterring the defendant from committing future crimes.
B.
Defendant also asserts that the suggestion that crime is the impetus for any shifting of the area's population from the City of St. Louis to St. Louis County is unsupported by evidence and totally irrelevant to the issues before the jury. While this may be true, the argument was not preserved for appellate review. Under plain error review we must determine if *856 the alleged error during closing argument had a decisive effect on the jury. Schlup, 785 S.W.2d at 802. A prosecutor is granted substantial latitude and may argue matters of common knowledge. See, State v. Jones, 7 S.W.3d 413, 419 (Mo.App. E.D.1999).
As we have stated above, there was sufficient evidence to convict Defendant on Counts I and II. This comment did not have a decisive effect on the jury. Though the relevance of the general statement made by the prosecutor about the shifting population of the city was questionable, it was not plain error for the judge to fail to instruct the jury to ignore the comment sua sponte. Point IV is denied.
The conviction for Counts I and II is affirmed. The conviction for Count III is reversed and the sentence is vacated.
CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J., concur.
NOTES
[1] All statutory references are to RSMo.2000 unless otherwise indicated.
[2] RSMo.2002.
[3] RSMo.2002. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355456/ | 158 S.W.3d 291 (2005)
STATE of Missouri, Plaintiff-Respondent,
v.
James W. DILLARD, Defendant-Appellant.
No. 26008.
Missouri Court of Appeals, Southern District, Division Two.
March 22, 2005.
*294 Irene Karns, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
JEFFREY W. BATES, Chief Judge.
James Dillard ("Defendant") was charged by information with two counts of committing the class C felony of possession of a controlled substance (methamphetamine and more than 35 grams of marijuana) in violation of § 195.202.[1] The information was later amended to allege that Defendant was a prior and persistent drug offender and that these offenses could be treated as class A felonies for purposes of sentencing. See § 195.275; § 195.285.[2] After a bench trial, Defendant was convicted on both counts and sentenced to concurrent terms of 25 years in prison.
Defendant's appeal presents three points for decision. He contends the trial court erred by: (1) denying Defendant's motion to suppress and admitting drugs, paraphernalia and his inculpatory statements obtained as the result of an unconstitutional search and seizure; (2) denying Defendant his constitutional right to a jury trial; and (3) imposing sentences so grossly disproportionate to the offenses he committed that they violate the federal and state constitutional proscriptions against cruel and unusual punishment found in the Eighth Amendment and art. I, § 21. We affirm.
Facts and Procedural History
Defendant does not challenge the sufficiency of the evidence to sustain his convictions. In this appeal, we consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences. State v. Cravens, 132 S.W.3d 919, 921 (Mo.App.2004); State v. Campbell, 122 S.W.3d 736, 737 (Mo.App.2004). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.
On January 11, 2002, Deputy Raymond Koch ("Deputy Koch") of the Wayne County, Missouri, Sheriff's Department received an anonymous telephone tip. The caller stated Defendant was driving a white van from the St. Louis area to Wayne County, and the van might contain drugs. Acting on the tip, Deputy Koch and Sergeant Jamie Garris ("Sergeant Garris"), a Wayne County drug task force officer, drove in Deputy Koch's truck to a location on Highway 67 near the Wayne County-Madison County line. The two officers parked beside the road and began observing southbound traffic. About 20 *295 minutes later, they were joined at this location by Missouri State Highway Patrol Corporal Michael Carson ("Corporal Carson") and Williamsville Police Officer Kevin Henson ("Officer Henson"), who arrived together in Corporal Carson's patrol car.
At approximately 8:00 p.m., a white van pulling a box trailer passed by the officers. This was the first white van the officers had seen since they arrived to conduct surveillance. The van appeared to be exceeding the posted speed limit of 60 miles per hour. Both police vehicles entered the southbound lanes of Highway 67 and began to follow the van. Deputy Koch paced the van and determined that it was speeding, according to the speedometer in his truck. Corporal Carson, who was behind Deputy Koch, used the radar unit in the highway patrol car to verify that the van was traveling approximately 70 miles per hour. Deputy Koch also ran a check on the trailer's license plates and learned they had expired. He activated his emergency lights to pull the van over and also noticed the trailer's brake lights were not functioning.
Defendant, who was driving the van, pulled onto the shoulder of Highway 67 and stopped. Because it was a Friday night, traffic was heavy. Deputy Koch parked his truck in front of the van, and Corporal Carson parked his patrol car behind the van. Both Deputy Koch and Corporal Carson were familiar with Defendant from prior encounters they had with him. Deputy Koch approached the driver's side of the van and asked Defendant for his driver's license and proof of insurance. Defendant started looking in his checkbook and seemed to be having problems finding the items Deputy Koch asked to see. Defendant's verbal responses also were "slow." While Defendant fumbled through some papers, Deputy Koch looked inside the van for officer safety reasons and noticed that a cup holder on top of the vehicle's engine compartment contained a beer bottle. By that time, Corporal Carson had approached the driver's door of the van, holding a flashlight to illuminate the scene. Suspecting Defendant had been drinking and driving, Deputy Koch asked Defendant to get out of the van.
As Defendant exited his vehicle, Corporal Carson saw a small piece of aluminum foil fall out of the van and land on the ground at the edge of the highway. Corporal Carson recognized the tin foil as a type of drug paraphernalia commonly used to smoke methamphetamine. After the tin foil had lain there a moment, Defendant put his foot on top of it. Defendant was standing on the edge of the traveled portion of the highway, which was dangerous due to the heavy traffic volume. After Defendant twice refused to remove his foot from the foil, Corporal Carson took Defendant by the arm and moved him onto the shoulder of the road in front of the van.
Deputy Koch picked up the tin foil. It was a 2-inch by 2-inch piece of folded tin foil. On both sides of one end, there was a burnt black residue. There also was a brown substance on the outside of the foil. From prior training, experience and arrests, Deputy Koch and Corporal Carson recognized this foil packet as a type of drug paraphernalia commonly used to smoke methamphetamine. When the folded square of foil was opened, it contained what Corporal Carson believed to be methamphetamine. Deputy Garris observed that the tin foil also had a burnt residue on the inside, which was consistent with the use of methamphetamine.
Defendant was placed under arrest, handcuffed and given his Miranda warning.[3]*296 Corporal Carson then searched Defendant and found a clear plastic baggie containing an off-white powdery substance in his right-front pants' pocket. Deputy Koch searched the interior of the van and found an ashtray containing marijuana cigarette butts, a pair of forceps holding a burnt marijuana cigarette, a complete roll of aluminum foil under the driver's seat, and two plastic pens with the insides removed and what appeared to be burnt methamphetamine residue on them.
Because Defendant's van and trailer were parked in a dangerous position on the roadside, Officer Henson drove the van to a baseball field in Greenville, Missouri, so a more complete search could be conducted. Defendant was transported to the same location by Corporal Carson. During the trip, Defendant said he did not want to go back to court and offered to cooperate by providing the police with information.[4] In response to questioning by Corporal Carson, Defendant admitted there was one-quarter pound of marijuana in a travel mug behind the driver's seat of his van. Once Corporal Carson arrived at the baseball field, he recovered the mug from the van. Later that evening, Defendant gave a written statement to Corporal Carson at the Wayne County Sheriff's Office. In the statement, Defendant admitted buying one gram of methamphetamine and one-quarter pound of marijuana from an individual in St. Louis that day. Defendant also admitted that he had used "one line" of methamphetamine after he bought it.
Laboratory tests were conducted on the items seized from Defendant and his vehicle. The results included the following findings: (1) the aluminum foil packet that fell out of Defendant's van contained about one-tenth of a gram of methamphetamine; (2) the plastic baggie taken from his pants' pocket contained seven-tenths of a gram of methamphetamine; (3) the travel mug contained 104.30 grams of marijuana.
Additional facts necessary to the disposition of the case are included below as we address Defendant's three points on appeal.
Discussion and Decision
Point I
Prior to trial, Defendant filed a motion to suppress the drugs, paraphernalia and the inculpatory statements he made to police after he was arrested. The motion alleged this evidence was seized in violation of Defendant's Fourth Amendment rights because it was not obtained via a search warrant or the existence of circumstances authorizing a warrantless search. The trial court conducted an evidentiary hearing at which Corporal Carson and Defendant testified. The court denied the motion to suppress. During the trial, Defendant renewed his constitutional objection, which was overruled.
In Defendant's first point, he contends these rulings were error because seizure of the foil packet was not justified as part of the traffic stop, the investigative stop to determine whether Defendant was driving while intoxicated or pursuant to the plain view doctrine. He also argues that all of the other post-arrest evidence should have been suppressed as fruits of an unlawful search. Thus, the linchpin of Defendant's *297 argument is that the foil packet was unconstitutionally seized.
In reviewing a trial court's ruling on a motion to suppress, our inquiry is limited to determining whether the decision is supported by substantial evidence. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). We consider the evidence presented at the pretrial hearing, as well as any additional evidence presented at trial. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). The evidence presented on a motion to suppress is viewed in a light most favorable to the ruling. State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003). Therefore, we consider only the facts and reasonable inferences derived therefrom favorable to the ruling. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001). Evidence and inferences contrary to the trial court's order are disregarded. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998). We defer to the trial court's factual findings and credibility determinations, but we review questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). We will not reverse the trial court's ruling on a motion to suppress unless the decision is clearly erroneous, leaving this court with a definite and firm impression that a mistake has been made. Williams, 97 S.W.3d at 469; State v. Birmingham, 132 S.W.3d 318, 321 (Mo.App.2004). Viewed in a light most favorable to the trial court's order denying Defendant's motion to suppress, we conclude the ruling is supported by substantial evidence because the foil packet was properly seized by police pursuant to the plain view doctrine.
The Fourth Amendment to the United States Constitution guarantees all citizens the right to be free from unreasonable searches and seizures. State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004). This reasonableness requirement has been interpreted to mean that a search usually must be based on probable cause and executed pursuant to a warrant. State v. Gantt, 87 S.W.3d 330, 332 (Mo.App.2002). Warrantless searches are presumptively invalid. State v. Galazin, 58 S.W.3d 500, 505 (Mo. banc 2001). Accordingly, if a search is conducted without a warrant, the search must fall within one of the recognized exceptions to the probable cause and warrant requirements in order to be valid. Gantt, 87 S.W.3d at 333.
We begin by noting that a routine traffic stop based on the violation of state traffic laws is a justifiable warrantless seizure under the Fourth Amendment. Barks, 128 S.W.3d at 516. Since police had a reasonable suspicion that Defendant had violated state traffic laws, the initial stop was a constitutional seizure. See City of Springfield v. Hampton, 150 S.W.3d 322, 326 (Mo.App.2004) (officer's observation of vehicle exceeding the speed limit provided reasonable suspicion that the driver had committed a traffic violation and authorized the ensuing traffic stop).
Once Deputy Koch interacted with Defendant and observed the beer bottle in the van, it was permissible to extend the traffic stop to investigate whether Defendant had been drinking and driving. See State v. Day, 87 S.W.3d 51, 54 (Mo.App.2002) (traffic stop can extend beyond the time necessary to effect its initial purpose if specific, articulable facts create an objectively reasonable suspicion the driver is involved in criminal activity). Defendant was asked to exit his vehicle as a part of this new investigation. While doing so, the foil packet fell from the van, where it was plainly visible to Corporal Carson until Defendant placed his foot on top of it. Seizure of the foil packet without a warrant was proper because it was in plain view.
*298 The plain view doctrine is one of the recognized exceptions to the warrant requirement imposed by the Fourth Amendment to the United States Constitution. See State v. Rutter, 93 S.W.3d 714, 724 (Mo. banc 2002); State v. Courtney, 102 S.W.3d 81, 87 (Mo.App.2003); Gantt, 87 S.W.3d at 333. This doctrine applies when: (1) the officer is lawfully located in a place from which the object can be plainly seen; (2) the officer has a lawful right of access to the object itself; and (3) the incriminating character of the object is immediately apparent to the seizing officer. State v. Miller, 894 S.W.2d 649, 656 (Mo. banc 1995); see also Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). We find that each element necessary to apply the plain view doctrine was present here.
First, Corporal Carson and Deputy Koch were lawfully located on Highway 67, a public road, carrying out their duties of enforcing state traffic laws when the foil packet fell on the ground at the edge of the traveled portion of the roadway. The foil packet was plainly visible to Corporal Carson as soon as it fell out of the van.
Second, Corporal Carson and Deputy Koch had a lawful right to view the foil packet once it fell from the van and landed on the ground. See State v. Howard, 973 S.W.2d 902, 909 (Mo.App.1998) (bag of marijuana that fell from glove compartment when it was opened by passenger was in officer's plain view); State v. Bibb, 922 S.W.2d 798, 802 (Mo.App.1996) (where police were at the site of frequent drug transactions and observed defendant drop two off-white chunks, pick them up and throw them into the vehicle's open window, the contraband was within plain view). "Although the law limits searches during an investigative stop, it does not demand that the police turn a blind eye to evidence discovered in plain view or by plain feel during such a stop." State v. Courtney, 102 S.W.3d 81, 88 (Mo.App.2003).
Third, the incriminating character of the foil packet was immediately apparent to Corporal Carson and Deputy Koch. As soon as the piece of foil fell to the ground, Corporal Carson recognized the object as a type of drug paraphernalia commonly used to smoke methamphetamine. When Deputy Koch picked up the tin foil, he observed that it was a 2-inch by 2-inch piece of folded tin foil with a burnt black residue on the exterior portion of both sides of one end. There also was a brown substance on the outside of the foil. Deputy Koch also recognized this foil packet as a type of drug paraphernalia commonly used to smoke methamphetamine. These officers' knowledge of how methamphetamine is ingested, based on their prior training and experience, is a relevant consideration in determining whether the incriminating character of the foil packet as contraband was immediately apparent. See State v. Rushing, 935 S.W.2d 30, 33 (Mo. banc 1996).
Citing State v. Courtney, 102 S.W.3d 81, 85 (Mo.App.2003), Defendant argues that he had a reasonable expectation of privacy in the piece of foil even after it fell from the van. We disagree for two reasons.
First, Courtney teaches that "[w]hen a defendant stores drugs in a closed, opaque container that conceals the contraband from plain view, he can demonstrate an objectively reasonable expectation of privacy." Id. at 85. This principle has no application here because the size, shape, folding and burnt exterior of the foil packet identified it as a type of drug paraphernalia used to smoke methamphetamine. In Courtney, nothing about the outward appearance of the hollowed-out bolt that fell from the defendant's pants *299 betrayed the fact that methamphetamine was concealed inside the bolt. Id. at 86.
Second, we reject Defendant's argument that he could create an objectively reasonable expectation of privacy in the foil packet by covering it with his foot once it fell to the ground. Defendant was standing in a dangerous location next to the traveled portion of a busy highway with his foot on the foil. He could not have remained there without jeopardizing the safety of himself and the officers standing beside him. When Defendant was moved to a safer location on the shoulder in front of his van, the foil packet was once again in the officers' plain view. While Defendant may well have manifested his subjective intention to hide the foil packet from the officers, we conclude Defendant could not have had any objectively reasonable expectation of privacy under these circumstances. Therefore, Courtney is distinguishable and does not support Defendant's argument. Point I is denied.
Point II
In Defendant's second point, he claims the trial court committed plain error in denying his constitutional right to a jury trial. Defendant contends the record does not show with unmistakable clarity that he knowingly, intelligently and voluntarily waived this right, resulting in manifest injustice. Defendant asks us to review for plain error pursuant to Rule 30.20.[5]
Plain error review is discretionary. See State v. Thurston, 104 S.W.3d 839, 841 (Mo.App.2003); State v. Smith, 33 S.W.3d 648, 652 (Mo.App.2000). For relief under the plain error rule to be warranted, a defendant must demonstrate "the error so substantially affected the defendant's rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected." State v. Deckard, 18 S.W.3d 495, 497 (Mo.App.2000).
A request for plain error review requires us to go through a two-step analysis. State v. Scurlock, 998 S.W.2d 578, 586 (Mo.App.1999). First, we determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. State v. Stanley, 124 S.W.3d 70, 77 (Mo.App.2004). We must decide "whether, on the face of the claim, plain error has, in fact, occurred." State v. Dudley, 51 S.W.3d 44, 53 (Mo.App.2001); State v. Brown, 97 S.W.3d 97, 100 (Mo.App.2002). Only if facially substantial grounds are found to exist do we then move to the second step of this analysis and determine whether a manifest injustice or miscarriage of justice has actually occurred. Stanley, 124 S.W.3d at 77. Therefore, we begin our analysis by considering whether Defendant's assertion of plain error is facially substantial.
A criminal defendant's right to have a jury decide the issue of guilt or innocence is guaranteed by the federal and state constitutions. U.S. CONST. amend. VI and XIV; MO. CONST. art. I, § 22(a); State v. Mitchell, 145 S.W.3d 21, 23 (Mo.App.2004). This right can be waived if the waiver is voluntarily, knowingly and intelligently made. State v. Sharp, 533 S.W.2d 601, 605 (Mo. banc 1976); Mitchell, 145 S.W.3d at 23. Here, Defendant was charged with committing two felonies. Rule 27.01(b) provides that "[i]n felony cases such waiver by the defendant shall be made in open court and entered of record." This proviso is meant to ensure that the waiver is voluntarily, knowingly *300 and intelligently made. State v. Carter, 104 S.W.3d 413, 415 (Mo.App.2003). Such a waiver "must appear from the record with unmistakable clarity." State v. Bibb, 702 S.W.2d 462, 466 (Mo. banc 1985); Mitchell, 145 S.W.3d at 23.
Just prior to commencement of the trial, the court held a pretrial conference with the attorneys. Defendant was present as well. During the conference, defense counsel announced that Defendant intended to waive a jury. The court reminded counsel that any waiver needed to be done in open court, on the record and in writing. Immediately after the pretrial conference was concluded, the trial judge asked for the written waiver on the record, and defense counsel provided it to the court. This document was signed by Defendant and stated that "I do give up my right to have a trial by jury" and "it is my desire to have a trial before the Court and to waive my right to a trial by jury." (Bold emphasis in original.) Despite the foregoing statements in the written waiver, however, Defendant claims he did not knowingly, intelligently and voluntarily waive his right to a jury trial, based on certain statements he made on the record when the written waiver was provided to the court.
As we noted earlier in our opinion, Corporal Carson was the only police officer who testified at the hearing on the motion to suppress, and the trial court denied the motion. Just after the pretrial conference concluded, the written waiver was handed to the court. The following colloquy then took place among defense counsel Walsh, prosecutor Kiser, the trial court and Defendant:
Mr. Walsh: [Defendant's] concern is Judge, speaking in general, and what upsets him is that he feels that at least one of the law enforcement officers here has committed perjury from a previous hearing and I assured him that I would get a chance to cross examine through me. The officer, his waiver of trial by jury is conditioned upon, and he had asked me to subpoena Deputy Ray, K-O-C-H, is that like Cook?
Mr. Kiser: Yes.
Mr. Walsh: And Mr. Kiser assured me that Mr. Koch will be here ... and he will call him ... in his case in chief he had told me and that was the foremost concern to [Defendant].
....
The Court: Is he going to be here?
Mr. Kiser: Mr. Koch will be here. But as far as conditions on waiver of the jury, that's an unconditional waiver.
The Court: Has your client signed it?
Mr. Walsh: Yes sir. And I'm handing you the waiver of trial by jury. That's just a form that I use. You may have some additional questions Judge, I don't know.
The Court: Let the record reflect the waiver of trial by jury is signed by the defendant. Is that your signature Mr. Dillard?
Defendant: Yes.
The Court: That has been filed.... Do you wish to ask your client some questions as to his rights and under the Constitution?
Mr. Kiser: Koch is here.
....
Mr. Walsh: Briefly Judge if it please the Court. Mr. Dillard you and I have talked about the issues of this lawsuit and what the issues are, have we not?
Defendant: Yes sir.
Mr. Walsh: And based on our talks by phone and then in person today, is it your desire to waive the jury and let *301 those issues be decided by Judge Price?
Defendant: Yes sir.
Mr. Walsh: What is important to you is that you have the right to confront witnesses, is it not?
Defendant: Yes sir.
Mr. Walsh: Especially Deputy Koch and Sargent [sic] Carson?
Defendant: Yes sir.
The Court: Further, any witness that takes the stand on behalf of the state your attorney will have an opportunity to cross examine that witness.
Defendant: Okay.
At this point, Defendant said he was curious why Deputy Koch had not testified at the suppression hearing because Defendant believed Deputy Koch's testimony would be inconsistent with that of Corporal Carson. The judge explained that he had not heard Deputy Koch's testimony yet, but defense counsel would have a right to cross-examine the witness. Defendant then stated, "Exactly but I don't understand why I had to sign a waiver of jury trial before those issues are heard." The court immediately reminded Defendant that he had to knowingly, voluntarily and intelligently waive his constitutional right to a jury trial in open court and on the record. The following colloquy then occurred between the trial judge and Defendant:
The Court:.... How far in school have you completed?
Defendant: One year of college.
The Court: One year of college. You can read and write?
Defendant: Yes.
The Court: Have you had sufficient time to go over this case with your attorney?
Defendant: Yes. But this issue has not been raised and I'm not satisfied with the outcome of the motion to suppress hearing because of that.
The Court: Your attorney as I recall, has preserved all those matters for [the] appellate record.... My concern is that you knowingly, voluntarily and intelligently waive your right to a jury trial?
Defendant: Yes.
The Court: And you had signed the agreement to that?
Defendant: Yes.
The Court: You are not under the influence of alcohol or any medication today, are you sir?
Defendant: No sir.
The Court: You know what you're doing?
Defendant: Yes sir.
The Court: You appear to. You appear to be very alert and intelligent Mr. Dillard. So the Court is going to accept your waiver of jury trial and proceed with a court trial without a jury.
Defendant contends that he mistakenly believed he had to waive his right to a trial by a jury in order to get a hearing on issues raised in his motion to suppress. We disagree with his interpretation of the record.
Defendant was dissatisfied with the trial court's decision on the motion to suppress because Deputy Koch had not testified at the suppression hearing. Defendant was concerned because he wanted his attorney to have an opportunity to point out inconsistencies in the account of events given by Deputy Koch and Corporal Carson. During the hearing on the waiver of jury trial issue, Defendant was told: (1) Deputy Koch was going to testify at the trial itself; (2) defense counsel would have an opportunity to cross-examine Deputy Koch; and *302 (3) Defendant could challenge the ruling on the motion to suppress on appeal. After being told these things, Defendant reiterated on the record that he was willingly waiving his right to a jury trial. At no time did he express a desire to have a jury decide the issue of his guilt or innocence.
Based on our review of the written waiver of jury trial and the transcript, we conclude that Defendant did knowingly, voluntarily and intelligently waive his right to a jury trial in court and on the record with unmistakable clarity. Therefore, we decline to review Defendant's second point for plain error because he has failed to present facially substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Point II is denied.
Point III
In Defendant's third point, he contends the 25-year concurrent sentences imposed by the trial court were so grossly disproportionate to the offenses of possession of methamphetamine and marijuana that the sentences violate the federal and state constitutional proscriptions against cruel and unusual punishment found in the Eighth Amendment and art. I, § 21. Defendant acknowledges that he did not raise this constitutional issue at sentencing, but he asks for plain error review pursuant to Rule 30.20 because he claims the lengthy sentences are unconstitutional and, therefore, manifestly unjust. Once again, our task is to determine whether Defendant's asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. See State v. Stanley, 124 S.W.3d 70, 77 (Mo.App.2004).
When Defendant was first charged with drug possession, both offenses in the information were described as class C felonies. A class C felony has a maximum range of punishment of seven years. See § 558.011.1(3). In the amended information, Defendant was alleged to be a prior and persistent drug offender, which allowed these offenses to be treated as class A felonies for sentencing purposes. See § 195.275; § 195.285. Prior to trial, the court made a finding beyond a reasonable doubt that Defendant was a prior and persistent drug offender pursuant to § 195.275.[6] The maximum range of punishment for a class A felony is life imprisonment. See § 558.011.1(1). The sentences imposed by the trial court were within the allowable range for a class A felony. Therefore, we perceive Defendant's argument as a constitutional attack on the validity of § 195.285, which authorizes enhanced punishment for recidivist drug offenders.
We first consider whether we have jurisdiction to decide this issue. The Missouri Supreme Court has exclusive jurisdiction over appeals involving the constitutional validity of a state statute. See MO. CONST. art. V, § 3; State v. Condict, 65 S.W.3d 6, 16 (Mo.App.2001). "The mere assertion that a statute is unconstitutional, however, does not deprive the court of appeals of jurisdiction unless the constitutional issue is real and substantial, and not merely colorable." State v. Wiles, 26 S.W.3d 436, 443 n. 4 (Mo.App.2000). A constitutional claim is merely colorable if our preliminary inquiry discloses that the contention is so obviously unsubstantial and insufficient, in fact or in law, as to be plainly without merit. State v. Stone, 926 *303 S.W.2d 895, 898 (Mo.App.1996). Because we determine that Defendant's constitutional challenge is merely colorable, this court has jurisdiction.
The Eighth Amendment proscription against the infliction of "cruel and unusual punishments" has been construed to prohibit a term of years sentence that is grossly disportionate to the severity of the crime. Rummel v. Estelle, 445 U.S. 263, 271, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980); Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The Eighth Amendment applies to the states via the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). In Solem, the Court held that "a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions." Solem, 463 U.S. at 292, 103 S. Ct. 3001. The intrajurisdictional and interjurisdictional analyses in the second and third factors, however, need only be undertaken "in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment); Ewing v. California, 538 U.S. 11, 23-24, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (plurality opinion).
Our threshold comparison of the crimes Defendant committed possession of methamphetamine and more than 35 grams of marijuana with the concurrent 25-year sentences imposed upon Defendant do not lead us to infer that his punishment is so grossly disportionate to the offenses he committed as to violate the Eighth Amendment.
In Rummel, the Supreme Court addressed an Eighth Amendment challenge to Texas' recidivist statute, which required the imposition of a life sentence upon a third conviction for a noncapital offense. Rummel, 445 U.S. at 264, 100 S. Ct. 1133. Rummel had been sentenced to life imprisonment after being convicted of the felony of obtaining $120.75 by false pretenses. Id. at 266, 100 S. Ct. 1133. His two prior felonies were fraudulent use of a credit card to obtain $80 worth of goods or services and passing a forged check in the amount of $28.36. Id. at 265, 100 S. Ct. 1133. In analyzing Rummel's Eighth Amendment claim, the Court pointed out that "successful challenges to the proportionality of particular sentences have been exceedingly rare." Rummel, 445 U.S. at 272, 100 S. Ct. 1133. The Court also acknowledged that states have an interest in dealing more harshly with those persons who, by their repeated criminal acts, have shown "that they are simply incapable of conforming to the norms of society as established by its criminal law." Id. at 276, 100 S. Ct. 1133. The Court elaborated on this theme later in its opinion:
[G]iven Rummel's record, Texas was not required to treat him in the same manner as it might treat him were this his first "petty property offense." Having twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are *304 to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.
Id. at 284, 100 S. Ct. 1133. Finally, the fact the Rummel would be eligible for parole in as little as 12 years had to be considered in assessing the validity of his Eighth Amendment challenge to the Texas recidivist statute. Id. at 280-81, 100 S. Ct. 1133. After considering all of these factors, the Court held that Rummel's mandatory life sentence did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. Id. at 285, 100 S. Ct. 1133.
Here, Defendant did not receive the maximum sentence of life imprisonment that could have been imposed upon him as a persistent drug offender. Indeed, he did not even receive the maximum 30-year term allowable for a class A felony. He also received concurrent, rather than consecutive, sentences. Defendant's four felony offenses demonstrate a persistent inability to conform his behavior to the social norms prescribed by the criminal laws of this state dealing with the possession and sale of controlled substances. It is also worthy of note that his earlier offenses involved the sale and production of drugs, rather than simple possession. The fact that Defendant's offenses all involve drugs makes his prior convictions much more serious than those in Rummel. As Justice Kennedy pointed out in Harmelin:
Possession, use, and distribution of illegal drugs represent "one of the greatest problems affecting the health and welfare of our population." Petitioner's suggestion that his crime was nonviolent and victimless, echoed by the dissent ... is false to the point of absurdity. To the contrary, petitioner's crime threatened to cause grave harm to society. Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at least three ways: (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture.
Harmelin, 501 U.S. at 1002, 111 S. Ct. 2680 (citations omitted). Finally, Defendant's convictions for possession of methamphetamine and marijuana are not offenses for which imprisonment without the possibility of probation or parole is mandated. See, e.g., § 195.291; § 195.292; § 192.295; § 195.296. Therefore, it appears Defendant could become eligible for parole. See § 558.011.4(c); Rowland v. State, 129 S.W.3d 507, 511 (Mo.App.2004). We believe Rummel is dispositive on this point and compels the conclusion that Defendant's sentences do not constitute the infliction of cruel and unusual punishment that is proscribed by the Eighth Amendment.[7]
*305 Our conclusion that the sentences imposed upon Defendant are not so grossly disportionate as to offend the federal constitution forecloses Defendant's parallel argument that he is entitled to relief under our state constitution. We apply the same "gross disproportionality" standard in determining whether there has been a violation of art. I, § 21(a) of the Missouri Constitution. See State v. Lee, 841 S.W.2d 648, 654-55 (Mo. banc 1992). In State v. Hill, 827 S.W.2d 196 (Mo. banc 1992), the defendant was convicted of trafficking drugs in the first degree and sentenced to a term of 30 years without probation or parole. Our Supreme Court held that the defendant's sentence did not violate art. I, § 21(a). Id. at 198. In so holding, the Court stated that "[d]rug trafficking is a serious matter, and the legislature could properly mandate a severe sentence. We reject the cruel and unusual punishment claim." Id. We reach the same conclusion here because Defendant has a more extensive criminal history than the defendant in Hill, and Defendant's prior crimes include felony convictions for selling and producing drugs. His 25-year concurrent sentences do not violate art. I, § 21(a).
Therefore, we decline to review Defendant's third point for plain error because he has failed to present facially substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Point III is denied.
Although the foregoing discussion disposes of all of the issues presented by Defendant's appeal, one further matter requires our attention. The judgment contained in the record on appeal appears to contain two clerical errors. First, it incorrectly indicates that Defendant was only found to be a prior and persistent offender. The transcript, however, demonstrates the trial judge also made a finding, on the record and beyond a reasonable doubt, that Defendant was a prior and persistent drug offender. Defendant was sentenced based on this finding.[8] Second, Rule 29.07(c) requires that a judgment of conviction set forth the sentence imposed. The judgment also fails to recite the sentences imposed upon Defendant, even though they were announced in open court and recorded in a docket entry. "The failure to memorialize accurately the decision of the trial court as it was announced in open court was clearly a clerical error." State v. Taylor, 123 S.W.3d 924, 931 (Mo.App.2004). Rule 29.12 authorizes a trial court to correct clerical errors in the judgment that result from oversight or omission. Id. Accordingly, while we affirm Defendant's convictions and sentences, we must remand this case with instructions to the trial court to enter an amended written judgment reflecting the judgment and sentences as they were announced by the trial judge in open court.
SHRUM and BARNEY, JJ., Concur.
NOTES
[1] All references to statutes are to RSMo (2000).
[2] The amended information also alleged Defendant was a prior and persistent offender because he had two prior felony convictions. See § 558.016.
[3] See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[4] At the time of Defendant's arrest on January 11, 2002, he was on probation for a prior drug conviction. The judge had suspended execution of the 12-year sentence that had been imposed.
[5] All references to rules are to the Missouri Rules of Criminal Procedure 2004.
[6] The State's evidence showed that on August 4, 1989, Defendant pled guilty in the Circuit Court of St. Louis County, Missouri, to two felonies for selling marijuana and cocaine. On April 6, 2000, Defendant pled guilty in the Circuit Court of Wayne County, Missouri, to a felony for producing more than five grams of marijuana.
[7] In reaching this conclusion, we have given careful consideration to Defendant's contention that Solem supports his argument, but we find this case factually distinguishable for two reasons. First, Helm was sentenced to life imprisonment without the possibility of parole. Solem, 463 U.S. at 281-82, 103 S. Ct. 3001. Second, none of Helm's offenses involves the possession or sale of drugs. Id. at 279-81, 103 S. Ct. 3001. In our view, Rummel, not Solem, is the controlling decision in the case at bar.
[8] Because Defendant was found to be a prior and persistent drug offender, the offenses he committed could be treated as class A felonies for sentencing purposes. See § 195.285.2. Defendant's 25-year concurrent sentences fall within the permissible range of punishment for a class A felony. See § 558.011.1(1). The finding that Defendant was a persistent offender as defined by § 558.016.3, however, would only authorize the trial court to sentence Defendant to a maximum 20-year term of imprisonment. See § 558.016.7(3). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355525/ | 144 Ga. App. 26 (1977)
240 S.E.2d 300
UNITED STATES LEASING CORPORATION
v.
JONES PHARMACY, INC.
54564.
Court of Appeals of Georgia.
Argued September 16, 1977.
Decided November 17, 1977.
Schwall & Heuett, Robert J. Kaufman, for appellant.
Susanne F. Burton, for appellee.
BANKE, Judge.
The appellant, United States Leasing Corp., brought this suit against the appellee, Jones Pharmacy, Inc., to recover the balance due under a lease agreement covering a Pitney Bowes Company copying machine. The appellee defended on grounds of fraud and failure of consideration and won a jury verdict. The appellant contends on appeal that the trial court erred in denying its motion for directed verdict.
The appellee did not deal directly with the appellant in obtaining the copier but rather with Pitney Bowes, the manufacturer. The appellant served for all practical purposes merely as a financing agency.
Under the terms of the lease agreement, the lessee was to select both the equipment and the vendor from whom it was to be purchased. The contract specified that the equipment was to be leased "as is," with no warranties, express or implied, by the lessor. The lessor agreed to purchase the equipment and to obtain simultaneously an agreement from the vendor allowing the lessee to enforce in its own name such warranties as might exist between the vendor and the lessor. The lessee agreed to enforce all claims based on unsatisfactory operation of the equipment against the vendor, rather than the lessor. The copier was delivered; but, according to the appellee, it never functioned so as to produce legible copies and was worthless to the business. A Pitney Bowes representative made attempts to fix it, but to no avail. The appellee made no payments following delivery; and after several months the appellant repossessed the machine, sold it back to Pitney Bowes for about one-half the purchase price, and brought this suit for the deficiency.
It was error not to direct a verdict for the appellant-lessor. "In so far as the alleged failure of consideration is concerned, it is sufficient to say: `Where the conditional-sale contract signed by the defendant and sued upon, contained the stipulation that the "seller makes no warranty of the property and purchaser accepts delivery under the warranty, (if any) of the manufacturer *27 only," the defendant is precluded from asserting to the action by the seller for a deficiency judgment on such contract, the defense of a failure of consideration. The contract waived all warranties both express and implied, and in the absence of the showing of fraud, the contract embodying the entire agreement between the parties cannot be varied by parol evidence.' Seigler v. Barrow, 83 Ga. App. 406 (63 SE2d 708)." Dr. Pepper Fin. Corp. v. Cooper, 215 Ga. 598, 600 (112 SE2d 585) (1960).
As for the defense of fraud, no evidence was introduced to support a finding that the appellant ever made any misrepresentations to the appellee about the condition of the machine or that it even knew the machine was defective until months after it was delivered.
Under the terms of the lease agreement, the appellees could refuse to accept the machine only by giving the lessor notice of defects or objections within five days after delivery, which it did not do. The appellee's only proper recourse thereafter was against the vendor, who was never made a party to this suit. The judgment must be reversed with direction that judgment be entered in accordance with the motion for directed verdict.
Judgment reversed and remanded. Shulman and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355569/ | 240 Ga. 381 (1977)
240 S.E.2d 846
KOSIKOWSKI
v.
KOSIKOWSKI; and vice versa.
32860, 32941.
Supreme Court of Georgia.
Argued October 13, 1977.
Decided November 28, 1977.
Rehearing Denied December 15, 1977.
*384 Cobb, Blandford & Werbin, John L. Blandford, Samuel N. Werbin, for appellant.
Westmoreland, Hall, McGee & Warner, James M. Crawford, for appellee.
Richard Eugene Kosikowski, pro se.
HILL, Justice.
In this no fault divorce case the wife appeals the jury verdict as to alimony, and the husband cross appeals the award of additional attorney fees to the wife and the issuance of a writ of ne exeat.
The parties were married for over twenty years and have four children, two of whom are minors. The wife, one adult child and the two minor children continued to reside in the marital home following the separation in 1975. After hearing evidence on the issue of alimony, the jury returned a verdict which awarded the wife the furnishings in the marital home, provided that the net proceeds from the sale of this home held jointly be divided equally between them, and awarded $200 per month for each of the two minor children. It was further determined that the wife held $7,734 in trust for the husband and that *382 the wife was responsible to the husband for charges she had made on his accounts.
1. The wife enumerates as error the refusal by the trial court to permit her counsel to elicit testimony from the husband concerning their adult son residing in the home with the wife. In the pleadings, both parents acknowledge that this son is mentally retarded and dependent to some degree.[1]
The wife did not seek child support for this son. A father's statutory duty to support his children ceases at their majority. Code Ann. § 74-105 (Rev. 1973); Calvin v. Calvin, 238 Ga. 421, 422 (233 SE2d 151) (1977). However, this rule should not be interpreted to imply that where a wife has assumed the responsibility of providing necessary care for a needy adult child, that circumstance is not relevant to the issue of alimony for the wife.
"The court should be able to consider every relevant fact which would enable it to come to a just determination of the [alimony] issue. Relevant evidence is that evidence which relates directly or indirectly to the question being tried. Code Ann. § 38-201." Gallant v. Gallant, 223 Ga. 397, 399 (156 SE2d 61) (1967); Hogan v. Hogan, 196 Ga. 822, 825 (28 SE2d 74) (1943). A wife's manner of living, her material resources, and her income, if any, are factors the jury may take into consideration in determining what amount may be necessary for the support and maintenance of the wife. Fried v. Fried, 211 Ga. 149, 151 (84 SE2d 576) (1954). The wife's fulfilling of her maternal obligation to a dependent adult son is relevant to her manner of living and pertains directly to estimating any income the wife might have available from her separate estate.
This court has recognized that an obligation by one spouse concerning a child for which the other spouse has no legal responsibility may nevertheless be relevant in *383 deciding alimony. Hawes v. Hawes, 66 Ga. 142 (2) (1880) (husband had children by former marriage); Melvin v. Melvin, 129 Ga. 42 (58 S.E. 474) (1907) (wife had child by former marriage). In Mullinax v. Mullinax, 234 Ga. 553 (216 SE2d 802) (1975), a divorce and alimony suit, the jury considered testimony concerning a disabled adult son residing with the wife and on appeal this court considered that fact in determining that the alimony award was not excessive.
Evidence of a husband's debts is relevant in determining his financial status. Evidence of a wife's debts has also been held to be relevant to a proper determination of alimony. Hardy v. Hardy, 221 Ga. 176, 179 (144 SE2d 172) (1965). Evidence that a wife has assumed responsibility for the care of a retarded adult child is no less relevant in a suit for alimony than would be evidence that the husband had assumed such responsibility. It was error for the trial court to exclude testimony as to the wife's support of this dependent adult child and under the facts of this case we cannot say that such error was harmless. Because there must be a new alimony trial, the wife's other enumerations of error need not be considered.
2. On cross appeal the husband asserts that the court erred in issuing a writ of ne exeat in that such writ, causing him to be incarcerated without hearing, is unconstitutional. The record does not disclose any objection made by the husband to the writ of ne exeat either before or after making the required bond and this court will not pass on a constitutional question which was not raised in the trial court.
3. The husband argues that the award of $2,000 for additional attorney fees to the wife, payable at the rate of $200 per month, was an abuse of discretion. The wife's attorneys previously had been paid $1,000 by the husband. The husband argues that he is unable to pay the $2,000. He does not contend that the wife's attorneys did not earn the additional fee. The court allowed the fee to be paid in monthly increments and no abuse of discretion has been shown.
Judgment reversed in case 32860, affirmed in case 32941. All the Justices concur.
NOTES
[1] The wife's petition for divorce stated the adult son "is mentally retarded and will be dependent for ... his natural life." In his answer the husband admitted this allegation but alleged that "the retarded child does work and is not totally incapacitated by his handicap." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355568/ | 144 Ga. App. 45 (1977)
240 S.E.2d 586
TENNESCO, INC.
v.
BERGER et al.
54925.
Court of Appeals of Georgia.
Argued November 3, 1977.
Decided November 17, 1977.
McCurdy & Candler, George H. Carley, John Perry Cripe, for appellant.
Zusmann, Sikes, Pritchard & Cohen, Charles C. Pritchard, Abraham A. Sharony, George G. Finch, for appellees.
DEEN, Presiding Judge.
1. Under Code § 81A-169 a judgment creditor may, in aid of the judgment, propound interrogatories of the judgment debtor "in the manner provided by this Title." Code § 81A-133 (a) sets out the manner of preparing and serving interrogatories on any adverse party and provides: "Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be in lieu of an answer." As to objections to questions 2 through 105 each defendant made a blanket statement *46 that the information requested "may tend to incriminate me and further ... furnishing the said information requested in interrogatories 2 through 105 may tend to work a forfeiture of my estate." As we construe the codal requirements, each interrogatory must be either answered or objected to and the reason stated for the objection. A blanket statement referring without explanation to all questions indifferently is not a compliance.
2. Why answering any or all of the questions posed would work a forfeiture of the defendant's estate is not explained. This objection, if it means merely that answering would interfere with the defendant's mode of earning a living, is not acceptable. Aldridge v. Mercantile Nat. Bank, 132 Ga. App. 788 (1) (209 SE2d 234). Nor does it cover a pledge by the defendant not to reveal the information. Plunkett v. Hamilton, 136 Ga. 72 (7) (70 S.E. 781). Forfeitures to the state for crime are of course abolished. Code § 85-1109. No circumstances are suggested under which this objection could be operative.
3. The self-crimination objection is more complicated. It, like forfeiture of estate, is a valid objection raising the point of personal privilege where applicable. Code § 38-1205. In the present case there are doubtless questions which, if the defendant has engaged in illegal business practices, would tend to be incriminating. An example would be questions relating to the amount of interest received on investments, which might under certain circumstances reveal or suggest usurious practices, or, whether or not the defendant had done so, whether the answer might be used by some prosecutor as a link in a chain attempting to establish such fact. Other questions such as whether the defendant had received payment of royalties in the past five years, or been a party to other litigation, or suffered a casualty by fire, wind or theft, may not be relevant but it is hard to think they might be incriminating.
The real question here is whether the party being examined has the sole discretion to decide whether or not to answer the question propounded, or whether there is some threshold point at which the judge should decide whether the question could be incriminating and, if he *47 feels the answer is in the negative, then insist that the witness reply; otherwise, the witness is the sole judge of what his answer would be. Empire Life Ins. Co. v. Einstein, 12 Ga. App. 380, 383 (77 S.E. 209), quoted in Mallin v. Mallin, 227 Ga. 833 (183 SE2d 377). The Mallin case is cited in Prince & Paul v. Don Mitchell's WLAQ, Inc., 127 Ga. App. 502 (194 SE2d 269) and Busby v. Citizens Bank, 131 Ga. App. 738 (206 SE2d 640), both of which latter construe it as a holding that "extensive questioning concerning financial affairs might tend to incriminate a person as a matter of law." We would therefore recognize a distinction between questions of this kind asked in, say, the course of a jury trial, and those asked by way of post-judgment interrogatories where no jury is involved. There is also a recognized distinction between civil and criminal proceedings. The last expression of opinion on the subject by our own courts appears in Page v. Page, 235 Ga. 131, 132 (218 SE2d 859), where a defendant in a contempt hearing for nonpayment for alimony refused to answer questions relating to his financial ability. The court stated: "The protections of the Fifth Amendment may be invoked in civil as well as criminal actions, Lefkowitz v. Turley, 414 U.S. 70, 77; Arndstein v. McCarthy, 254 U.S. 71, and apply fully to state proceedings through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1. A criminal defendant may not be compelled to take the stand at all, thus in effect being allowed to invoke the Fifth Amendment against any and all questions. Other persons, however, cannot stymie questioning totally, but must take the stand when called and decide after each question whether to invoke the privilege or not." Since the writer of the Malloy and Prince & Paul cases is the same, we assume that there is no conflict between them. We therefore conclude that in a civil action the burden is on the reneging defendant to consider each question separately and state his general reason for refusal to answer if he refuses, at which point the trial judge may decide either that the question might be incriminating under certain circumstances (whether or not the defendant had in fact committed any crime) or whether or not the line of questions as a whole, and as a matter of law, might so tend. Thus, in a civil case, the discretion of *48 neither is absolute. This coincides with the federal rule as stated in Capitol Products Corp. v. Hernon, 457 F2d 541, where the same objection was urged against post-judgment interrogatories addressed to a defendant in a civil case under the analogous Rule 69, Fed. Rules Civ. Proc., 28 USCA. The court held that there "... is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings'... The privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination as to the validity of the claim,'" and quoting Hoffman v. United States, 341 U.S. 486, 487, held that "`... it need only be evident that from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result...'" Id., p. 543. It is also there pointed out that the argument may be entirely hypothetical; the interest of the court is not that the defendant may be criminally implicated by an answer but that he might conceivably be so implicated.
What is impermissible is that the defendant merely slide out of his obligations by a brash assertion that any and all questions directed to him would tend to incriminate him, regardless of the likelihood of such result. The questions must at the very least be considered on an individual basis and answered accordingly.
Judgment reversed. Webb and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356012/ | 290 S.E.2d 256 (1981)
STATE of West Virginia
v.
Nelson Eugene CUNNINGHAM.
No. 14691.
Supreme Court of Appeals of West Virginia.
November 3, 1981.
*258 Lantz & Rudolph and David G. Palmer, Parkersburg, for appellant.
Chauncey H. Browning, Atty. Gen., Richard S. Glaser, Jr., Asst. Atty. Gen. and John Ernest Shank, Law Clerk, Charleston, for the State.
*257 NEELY, Justice:
Appellant, Nelson Eugene Cunningham, appeals his conviction of armed robbery and first-degree sexual assault after a jury trial before the Circuit Court of Wood County.
In the early morning hours of 4 April 1978 the appellant loitered in the Kom Pack store in Parkersburg. When the store's clerk, a nineteen-year-old female college student, walked into the store's cooler at approximately 5:00 a. m., the appellant followed her in. After hitting her several times and taking off her clothes the appellant forced her to perform oral sex with him. Appellant then left the clerk in the cooler and emptied the cash register on his way out of the store.
After being treated in the hospital, the victim was being taken to the police station when she saw the appellant on the street. The police quickly apprehended the appellant. After the arrest the appellant's clothes were sent to the Criminal Investigation Bureau. Examinations found seminal stains around the zipper of the appellant's jeans.
Before the trial appellant's counsel made a discovery motion which was granted by the court. The State answered the motion in a timely manner and later filed several amendments to its answer. However, the State was unable to notify the appellant's counsel that the appellant's jeans had seminal stains on them until the afternoon before the trial. The trial court denied the appellant's subsequent motion for a continuance.
The appellant has assigned three errors to the proceedings below: (1) the court should have granted the motion for a continuance; (2) the counts of armed robbery and first-degree sexual assault should have been tried separately; and (3) the facts alleged by the State do not constitute the offense of robbery. Finding these assignments to be without merit we affirm.
I
The question of whether a continuance should have been given in a particular trial has confronted this Court many times. Yet our standard of review has not changed since State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919), in which we stated in syllabus point 1:
The granting of a continuance is a matter within the sound discretion of the trial court ... and the refusal thereof is not ground for reversal unless it is made to appear that the Court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made.
In this case the appellant admits that he had sufficient time between the indictment and the trial to prepare. However, appellant contends that he did not have adequate time to prepare a defense to the information concerning the stains on the jeans. In West Virginia, the late production of court-ordered discovery without a showing of particular harm to the defendant's preparation of the case, will not constitute error. See State v. Trail, W.Va., 255 S.E.2d 900 (1979); Wilhelm v. Whyte, W.Va., 239 S.E.2d 735 (1977). Hence, in this case we must determine whether the appellant was prejudiced in some way by the late disclosure.
*259 It is clear from the record that the appellant knew that the State was conducting examinations of his jeans long before he was actually notified of the results. It is also clear that the appellant had the right to perform his own examination of the jeans before the trial but chose not to assert that right. Therefore we disagree with the appellant's claim that he was "ambushed." Moreover, we find that the nature of the evidence was not prejudicial to his case. Rather, it reinforced his alibi defense that he had been with another woman that night. Appellant's counsel pointed out that there was no indication of how old the stains were. Appellant's counsel was also able to demonstrate that the victim had no idea of whether her assailant had ejaculated during the attack. This further reduced the probative value of the evidence.
Therefore, in light of the facts that the appellant knew that the jeans were being examined, that the evidence was consistent with his alibi, and that the evidence was corroborative and not the primary evidence against appellant, we find that the appellant was not prejudiced by the late production of the evidence and that the trial court did not err in refusing to grant the motion for a continuance.
II
There was no need for the State to elect a count on which it would rely for a conviction. The trial court followed the holdings of several recent cases in ruling that both counts of the indictment could be decided at the same trial. In State ex rel. Watson v. Ferguson, W.Va., 274 S.E.2d 440 (1980), we stated in syllabus point 1:
A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.
This is not to say that a defendant faced with multiple counts may not move for a severance of the counts. If the court finds that the defendant would be prejudiced by a joinder of counts, the Court may grant the motion by ordering separate trials for each count. See State ex rel. Johnson v. Hamilton, W.Va., 266 S.E.2d 125 (1980). The holdings in these cases are accurately reflected in Rule 8(a) concerning joinder, and Rule 14(a) of the new West Virginia Rules of Criminal Procedure.[1]
Applying the law as stated above to the facts in this case we cannot say that the trial court abused its discretion in denying the appellant's motion. The facts of the sexual assault were certainly necessary to prove the elements of the armed robbery. In turn the record demonstrates that evidence of the armed robbery would have punctuated the State's case concerning the events surrounding the sexual assault. A difficulty in sustaining the presumption of innocence because an accused has committed two serious crimes at the same time is not the same as prejudice. There was absolutely no prejudice to the accused since both crimes were proven beyond a reasonable doubt and the accused would not have been *260 able to offer a better defense if the counts had been severed. While the joinder of the counts in one trial may have caused some difficulty for the appellant, there was no way that severance would have relieved that difficulty any better than did the clear instructions to the jury at the end of the case.
III
Finally appellant contends that, given the facts alleged by the State, his acts could not have constituted armed robbery. The first paragraph of W.Va.Code, 61-2-12 [1961] states that persons who commit robbery "by striking or beating, or by other violence to the person, ... shall be guilty of a felony." We have come to view a robbery committed in such a fashion as being an "armed robbery," which term, while not literally accurate, reflects the historical difference in punishment between armed and unarmed robbery. See State ex rel. Facemyer v. Boles, 148 W.Va. 702, 137 S.E.2d 237 (1964). Since the W.Va.Code gives no further definition of the crime of robbery, this Court has previously resorted to the common law which defines robbery as "the felonious taking of money or goods of value from the person of another or in his presence, against his will, by force or putting him in fear." State v. Young, 134 W.Va. 771, 779-80, 61 S.E.2d 734, 739 (1950).
In this case the appellant beat the store clerk, removed her clothes, told her not to leave the cooler and left, taking her clothes with him. He then emptied the cash register. The clerk's continued absence from the cash register was caused entirely by the violence to the clerk's person. This case is indistinguishable from the situation in Young where the robber, holding what appeared to be a gun in his pocket, directed the clerk to hide behind a refrigerator while he took cash from a desk drawer. In both cases the robbers used force to keep their victims away from the money. Therefore, we follow Young by asserting that such use of force or fear to keep a victim away from the money or goods during a theft constitutes a taking in the presence of the victim. Hence, the acts of the appellant as alleged by the State do constitute the offense of "armed robbery" as charged, and there is no error.
Accordingly, for the reasons set forth above the judgment of the Circuit Court of Wood County is affirmed.
Affirmed.
NOTES
[1] These rules state as follows:
Rule 8(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offense charged, whether felonies or misdemeanors or both, are of the same or similar character. All offenses based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan shall be charged in the same indictment or information in a separate count for each offense whether felonies or misdemeanors or both.
Rule 14(a) Offenses. If it appears that a defendant or the State is prejudiced by a joinder of offenses in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of the counts or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the State to deliver to the court for inspection in camera any statements or confessions made by the defendant or other relevant information which the State intends to introduce in evidence at the trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/690847/ | 48 F.3d 1229NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Petitioner-Appellee,v.Thorsten Ralph LEWERENCE, Respondent-Appellant.
No. 94-56219.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 21, 1995.*Decided Feb. 27, 1995.
Before: SCHROEDER, CANBY and LEAVY, Circuit Judges.
1
MEMORANDUM**
2
Thorsten Lewerence appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate his sentence imposed following his guilty plea to attempting to persuade a witness to provide false testimony at his federal criminal trial, in violation of 18 U.S.C. Sec. 1512(b) (obstructing justice). We have jurisdiction pursuant to 28 U.S.C. Sec. 2255, and we affirm.
3
Lewerence contends that the district court erred in calculating his base offense level under U.S.S.G. Sec. 2X3.1 (accessory after the fact) and not U.S.S.G. Sec. 2J1.2 (obstruction of justice). He contends that he is not an accessory after the fact because he did not seek to help another person escape conviction but instead to help himself escape conviction. The Sentencing Guidelines provides for the application of section 2X3.1 to an offense involving the obstruction of the investigation or prosecution of a criminal offense "whether such offense was committed by the defendant or another person." See U.S.S.G. Sec. 2J1.2(c)(1) and Sec. 2J1.2, comment. (backg'd). Accordingly, the district court properly denied Lewerence's section 2255 motion.
4
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1355917/ | 162 Ga. App. 42 (1982)
290 S.E.2d 140
CANTRELL
v.
THE STATE.
63290.
Court of Appeals of Georgia.
Decided April 6, 1982.
J. Laddie Boatright, Donald A. Starling, for appellant.
C. Deen Strickland, District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.
CARLEY, Judge.
Appellant was indicted, tried and convicted of forgery in the first degree. He appeals.
1. Forgery in the first degree is defined in Code Ann. § 26-1701 (a) as follows: "A person commits forgery in the first degree when, with intent to defraud, he knowingly makes, alters or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, or at another time, or with different provisions, or by authority of one who did not give such authority and utters or delivers such writing." The indictment under which appellant was tried alleged he "did, with intent to defraud, knowingly forge the name of Eula M. Chandel... to a certain United States Treasury Check, said check being check number 10,935,464, dated February 1, 1980 in the amount of $209.70, made payable to Eula M. Chandel..., and did utter and deliver said forged instrument and writing to..., a teller for the Farmer's Bank, Douglas, Georgia."
It is readily seen that the indictment alleged that appellant had violated Code Ann. § 26-1701 (a) by forging the endorsement of, Eula M. Chandel, the check's payee and by then cashing the check over this forged endorsement. See Henderson v. State, 145 Ga. App. 597 (244 SE2d 136) (1978). At trial, the evidence demonstrated that when the check was presented for payment by the appellant it in fact contained two endorsements, the first being the purported signature of Eula Chandel, the named payee, and the second being the signature of one apparently fictitious Bobby Caldwell. Mrs. Chandel testified that she never received the check and the purported endorsement in her name was not her signature. The state's handwriting expert, after comparing exemplars of appellant's writing, was unable to identify the endorsement of Eula M. Chandel on the check as having been written by appellant or anyone else. Instead, the state's handwriting expert was able to testify only that the second endorsement, that of "Bobby Caldwell," had been written by appellant.
On this evidence, we find a fatal variance between the allegation of the indictment that appellant violated Code Ann. § 26-1701 (a) by forging the endorsement of Eula M. Chandel and the proof at trial which utterly failed to demonstrate that appellant had forged that endorsement. Compare Harrison v. State, 151 Ga. App. 758 (261 SE2d 482) (1979). "`We recognize the rule that it is not necessary to prove allegations in an indictment which are immaterial or purely surplusage. But the question is, what are immaterial averments? . . . *43 "If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance"' [Cits.] . . . `As we understand the rule, no averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance.' [Cits.]" Walker v. State, 146 Ga. App. 237, 241-242 (246 SE2d 206) (1978).
It is of no consequence that the state's evidence may have showed and may have authorized a finding that, in violation of Code Ann. § 26-1701 (a), appellant knowingly possessed the check containing the forged endorsement of Eula M. Chandel and further knowingly forged the endorsement of Bobby Caldwell. The indictment alleged that appellant had violated Code Ann. § 26-1701 (a) by forging the endorsement of Eula M. Chandel. "`To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance under the standards enunciated in De Palma v. State, 225 Ga. 465, 469 (169 SE2d 801) [1969]. [Cits.]' [Cit.]" Walker v. State, 146 Ga. App. at 246, supra. See also Hancock v. State, 127 Ga. App. 21 (192 SE2d 435) (1972); Evans v. State, 138 Ga. App. 620, 621 (1) (227 SE2d 448) (1976).
2. Reversal of appellant's conviction for the reason discussed in Division 1 of this opinion renders unnecessary consideration of the remaining enumerations of error.
Judgment reversed. Quillian, C. J., and Shulman, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355920/ | 162 Ga. App. 67 (1982)
290 S.E.2d 168
McMICHAEL et al.
v.
ROBINSON et al.
63324.
Court of Appeals of Georgia.
Decided April 8, 1982.
Michael Bowers, Attorney General, David C. Will, Assistant Attorney General, for appellants.
William P. Bartles, Donald F. Daugherty, Wade K. Copeland, for appellees.
BIRDSONG, Judge.
Indemnity Agreement. Peyton C. Robinson and John L. Thompson were joint owners of over 200 acres of land in Jasper County, but both are residents of Fulton County. In 1977, Robinson conferred with Marvin McMichael with a view toward conducting a burn-off of Robinson's acreage in Jasper County. McMichael is a forest ranger employed by the Georgia Forestry Commission. Over the past 28 years, McMichael had conducted hundreds of such burn-offs on behalf of county residents. The purpose of the burn was to eliminate unwanted underbrush and provide improved wildlife habitat. Robinson, with the full consent of Thompson, executed a "prescription burning" agreement with the Forestry Commission. The record makes it abundantly clear that Robinson, as landowner, had the sole responsibility at the time of the burn to light the fire. After the fire was lit, employees of the Forestry Commission conducted the burn in accordance with well established procedures. Part of this agreement with the Forestry Commission stated that the landowner agreed to assume all responsibility for damage on the landowner's and other person's property resulting from the fire. Robinson's property was contiguous with that of the appellee Tom Anderson.
In December 1977, the first part of Robinson's property was burned, apparently without incident. On March 17, 1978, the second part of the property was burned and on this occasion, the fire jumped pre-established fire breaks and slightly burned on the property of an adjacent owner (but not that of Anderson). On March 23, 1978, Robinson contacted McMichael and arranged for the final burn-off on the property. McMichael agreed to burn the last acreage at 12:00 noon March 24, and requested Robinson's presence at that time. However, because McMichael anticipated the wind velocity to increase by noon on March 24, he directed one of his employees, Glenn Williams, to commence the burn at 10:00 a. m. on March 24. Williams, with two other part-time employees of the Forestry Commission, lit the torches at 10:00 a. m., a time when neither McMichael, Robinson nor Thompson were present. The fires were *68 set at plowed fire breaks between the Robinson property and the Anderson property. The fires were watched by Williams and the two part-time employees until it had burned about a 100-yard swath away from the property line back into Robinson's property, thus leaving about a 100-yard burned strip or more plus the plowed fire break between Robinson's property and that of Anderson. After the fire seemingly had died down, McMichael made an appearance and found that Williams and the two part-time workers had departed for lunch. McMichael observed the nature of the burn and concluded that the burn was successfully completed and also left for lunch. At 12:00 Robinson arrived and found the fire still was smoldering and vigorously burning on part of his property. He then detected that the fire had jumped the fire break and that there was a fire on Anderson's property. McMichael, Williams and his two workers were called back to the scene to control the fire on Anderson's property, but before the fire could be controlled, a barn, a chicken coop, an old car and numerous items of farm equipment located in the barn were destroyed as well as several acres of Anderson's land including trees and lumber. Anderson placed his monetary loss in excess of $70,000. Anderson brought his complaint in Fulton County against Robinson and Thompson as property owners and against McMichael and Williams as the direct tortfeasors. All four defendants answered denying liability, claiming accident and other defenses. Robinson and Thompson filed a cross claim against McMichael and Williams seeking contribution for any monetary judgment imposed against them by Anderson. McMichael and Williams also cross claimed against Robinson and Thompson claiming indemnification based upon Robinson's assumption in the prescription burning agreement with the Forestry Commission to assume all responsibility for property damage resulting from the burn. Robinson and Thompson moved for summary judgment against the former. The trial court granted partial summary judgment to Robinson and Thompson limited to the question of liability. McMichael and Williams bring this appeal enumerating as error that grant on several grounds. Held:
1. In substance, McMichael and Williams argue that the prescription burning agreement made Robinson and Thompson fully liable for any property damage caused by the burn and as that agreement is clear and unambiguous the trial court erred in construing the agreement and holding that their agents (McMichael and Williams) could be held responsible for contribution. Incidental to that argument, McMichael and Williams contend the trial court erred in concluding that the portion of the prescription burning agreement indemnifying them (the Forestry Commission employees) was void as against public policy; by its conclusion that by failing to *69 prevent the fire from spreading to another's property, McMichael and Williams were guilty of negligence per se; and finally, that by relieving Robinson and Thompson of liability, they being the only Fulton County residents, the trial court lost jurisdiction over McMichael and Williams who are Jasper County residents.
2. In a well-reasoned opinion, the trial court concluded that in order for McMichael and Williams to claim benefit of Robinson's assumption of liability for damage flowing from a burn, the assumption agreement would have to be considered an indemnification agreement as to McMichael and Williams. He then found a basic defect in such an implied indemnity agreement. The assumption placed any and all liability upon the property owners irrespective of any negligence by the indemnitees, McMichael and Williams. The general rule in this state is that express indemnity contracts are to be strictly construed and that an understanding purporting to indemnify or hold harmless the indemnitees' sole acts of negligence are void as being against public policy in the absence of plain, clear and unequivocal language by the indemnitor accepting the indemnitees' negligence as its own. Molly Pitcher Canning Co. v. Central of Ga. R. Co., 149 Ga. App. 5 (253 SE2d 392); Liberty Mut. Ins. Co. v. Alsco Construction, 144 Ga. App. 307 (240 SE2d 899); Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga. App. 226 (144 SE2d 547). We agree with the trial court and find these decisions of our court are controlling. There being no express acceptance of McMichael's and Williams' negligence as their own, Robinson and Thompson cannot be bound by an implied indemnification by the assumption of liability outside their own on the basis of the assumption clause in the prescription burning agreement.
3. In its order, the trial court referred to the provisions of Code Ann. § 26-9926a. That code section provides that it is unlawful to burn any brush or field on one's own land without taking necessary precaution to prevent the escape of the fire to another's property. The statute provides that the escape of the fire shall be prima facie proof that such precautions were not taken. Based upon the provisions of this statute, the trial court concluded the appellants (McMichael and Williams) were negligent per se. Finding the presence or absence of negligence was necessary. If appellants had acted without negligence, no issue of indemnification would have arisen. But because the court did find negligence on the part of McMichael and Williams, they then could not rely on the implied indemnification provisions of Robinson's agreement with the Forestry Commission because of the absence of the express recognition in such an implied agreement that the indemnitor accepted and excused any negligence of the indemnitee. (See *70 Division 1 of this opinion.) Appellants argue further that this criminal statute has no application to this civil case and the conclusion by the trial court attributing to them negligence per se was harmful error. We disagree. It has most frequently been held by this court that a violation of a statute (i.e., violations of the rules of the road) constitutes negligence per se. See International Brotherhood of Electrical Workers v. Briscoe, 143 Ga. App. 417, 429 (7) (b) (239 SE2d 38). See also Garrett v. Royal Bros. Co., 225 Ga. 533 (170 SE2d 294). As previously indicated, a finding of negligence or the absence thereof was most apropos in determining the applicability of the indemnity clause. Appellants, while denying that they caused the fire on Anderson's land, admitted that they did not know the exact cause and believed that the most probable cause of the fire on Anderson's land was from the fire on Robinson's property. In the absence of a reasonable explanation, we find no error in the conclusion by the trial court that McMichael and Williams were guilty of negligence per se insofar as such a finding might have relevance to a claim of indemnification.
4. In their last enumeration of error, appellants argue that because the trial court held Robinson and Thompson were entitled to contribution, they in effect were exonerated of liability. Because they are the only defendants residing in Fulton County, appellants argue that the non-liability of the Fulton County residents caused the Fulton County court to lose jurisdiction over appellants who are Jasper County residents. See Steding Pile Driving Corp. v. Cunningham & Assoc., 137 Ga. App. 165, 166 (223 SE2d 217). We reject this argument on its face. The trial court did not exonerate Robinson and Thompson of liability nor did Robinson and Thompson seek exoneration. The prayer was that should they be found liable to Anderson, appellants should contribute to any recovery. The complaint remains viable as to all the defendants in the trial yet to be held. Thus, the principle upon which appellants place their reliance is inapplicable. We find no merit in this enumeration.
Judgment affirmed. McMurray, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355855/ | 771 P.2d 654 (1989)
96 Or.App. 116
STATE of Oregon, Appellant,
v.
Jessie Viola TIBBET, Respondent.
88-7034; CA A48395.
Court of Appeals of Oregon, In Banc.
Argued and Submitted November 21, 1988.
Resubmitted January 11, 1989.
Decided April 12, 1989.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
John H. Tuthill, Tillamook, argued the cause and filed the brief for respondent.
Resubmitted In Banc January 11, 1989.
BUTTLER, Judge.
Defendant was charged with driving under the influence of intoxicants. ORS 813.010. The state appeals the trial court's order suppressing all evidence obtained from the stop of defendant's vehicle. We affirm.
At approximately 12:15 p.m., while Trooper Howard was speaking to a motorist whom he had stopped on Highway 101, a driver of a red pickup truck pulled off the highway and informed him that a vehicle had been "driving all over the road" in front of him and should be "checked out." Howard pointed to a light brown or tan colored pickup truck that passed them just then, and the informant said that it was the *655 vehicle to which he was referring. It was raining, and visibility was limited. Howard did not see anything unusual about the vehicle or how it was being driven. He did not obtain the name or address of the informant or his license number. He radioed the Tillamook police and requested that they stop the pickup.
Tillamook Police Chief White followed the truck for about a quarter of a mile. Although he saw nothing abnormal about defendant's driving, he stopped her truck, as Howard had requested. White notified Howard that defendant appeared to be "highly intoxicated." Howard proceeded to the scene of the stop and arrested defendant for driving under the influence of intoxicants. The trial court granted defendant's motion to suppress the evidence obtained from the stop on the ground that the officers lacked a reasonable suspicion to believe that she had committed a crime.
An officer may make an investigatory stop of a person who he "reasonably suspects" has committed a crime. ORS 131.615(1). That phrase is defined in ORS 131.605(4):
"`Reasonably suspects' means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 to 131.625."
It is clear that White, who stopped defendant, had no basis for effecting a stop, other than what he had been told by Howard. The question, then, is whether Howard had an objective basis for reasonably suspecting that defendant was driving under the influence of intoxicants.
When an informant's tip provides the basis for a stop, that tip must have some indicia of reliability in order for it to give rise to a reasonable suspicion that defendant had committed a crime. State v. Faulkner, 89 Or. App. 120, 123, 747 P.2d 1011 (1987); State v. Black, 80 Or. App. 12, 19, 721 P.2d 842 (1986). The only information that Howard had came from an anonymous driver who told him that he had observed a vehicle in front of him "driving all over the road," and pointed out a pickup truck that passed Howard and the informant as they were talking.[1] Howard did not see anything unusual about the way in which the pickup was being driven.
The state would distinguish this case from State v. Black, supra, on the basis that the anonymous informant in Black gave the police information over the telephone, whereas the anonymous informant here gave the information in person. Nevertheless, the police did not get his name, address, telephone number, car license number or any other information that would have permitted the police to contact him. The informant remained just as anonymous as the informant in Black and, as in Black, did not expose himself to possible criminal and civil prosecution if his report was false. See State v. Montigue, 288 Or. 359, 605 P.2d 656, cert. den. 449 U.S. 846, 101 S. Ct. 131, 66 L. Ed. 2d 56 (1980).
We would not uphold a search warrant that was issued on the basis of an affidavit in which the only information supporting probable cause came from an anonymous informant, even though the informant gave the information in person to the affiant. There is no reason why the test should be any different here in terms of assessing the reliability (credibility) of the informant.
There was no error in suppressing all evidence obtained as a result of the stop of defendant's vehicle.
Affirmed.
WARREN, Judge, dissenting.
I dissent, because I disagree with the majority's holding that the informant's tip was unreliable. The tip had "some indicia of reliability," giving rise to a reasonable suspicion that defendant committed a crime. State v. Faulkner, 89 Or. App. 120, 123, 747 P.2d 1011 (1987); State v. Black, 80 Or. App. 12, 19, 721 P.2d 842 (1986). The informant voluntarily initiated personal contact with Trooper Howard and told him that he had personally observed defendant's erratic driving. Those facts *656 tend to establish the basis of the informant's knowledge.
I also disagree with the majority's conclusion that this case is indistinguishable from the anonymous informant in Black. Even though Howard failed to get the informant's name, the informant was identifiable, not a faceless tipster. Unlike the informant in Black, who gave a tip over the telephone and refused to reveal her identity, the informant here did not refuse to give his name. He made himself and his vehicle available to Howard for identification. On the basis of that contact, the officer could have inferred that he would have given his name, had he been asked. The informant's personal contact with the police exposed him to greater civil or criminal liability than would the act of a person giving information over the phone. See State v. Faulkner, supra, 89 Or. App. at 123, 747 P.2d 1011; State v. Black, supra, 80 Or. App. at 19, 721 P.2d 842. The "tipster" only remained unidentified because the officer did not request identification. The reliability of the motorist who stopped to report defendant's erratic driving should not be diminished because of something the officer did not do.
I would hold that, under the totality of the circumstances, Howard could reasonably suspect that defendant was committing the crime of driving under the influence of intoxicants and that, therefore, the trial court erred in granting defendant's motion to suppress.
RICHARDSON, ROSSMAN and DEITS, JJ., concur in this dissenting opinion.
NOTES
[1] It is difficult to understand how the pickup that had been in front of the informant passed him and Howard as they were talking. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355881/ | 112 Wash. 2d 347 (1989)
771 P.2d 330
THE STATE OF WASHINGTON, Respondent,
v.
THOMAS ALLAN NEHER, Petitioner.
No. 55668-7.
The Supreme Court of Washington, En Banc.
April 13, 1989.
*348 Bianchi, Berzins & Bianchi, P.S., by Peter Berzins, for petitioner.
Norm Maleng, Prosecuting Attorney, and Ellen O'Neill-Stephens, Deputy, for respondent.
BRACHTENBACH, J.
At issue is whether the vehicular assault statute requires that the defendant's actions in driving recklessly or while intoxicated be the sole proximate cause of serious bodily injury to another, or whether that conduct can be one of two or more proximate causes. We hold that the vehicular assault statute does not require that the defendant's actions be the sole proximate cause of the injury. We affirm the Court of Appeals, which affirmed defendant's conviction for vehicular assault. State v. Neher, 52 Wash. App. 298, 759 P.2d 475 (1988).
On the evening of March 2, 1986, defendant was driving northbound on Beacon Avenue South, in a residential area of Seattle, approaching the intersection of Beacon and South Warsaw Street. The posted speed limit on Beacon Avenue South was 35 m.p.h. Defendant was traveling well over the speed limit. His own expert witness placed his speed at 50 to 75 m.p.h. Various witnesses for the State placed his speed from 70 to 80 or 90 m.p.h. One expert testified that the speed of defendant's car when it began to brake was a minimum of 65 m.p.h. but probably closer to 75 m.p.h.
*349 Douglas Spicer, who was driving his car west along South Warsaw at the same time, stopped at the stop sign at the intersection, looked left, saw no vehicle, then looked right, and proceeded into the intersection. Defendant's car collided with Spicer's; a passenger in Spicer's car was hospitalized for 6 weeks as a result of the serious injuries received in the collision.
Defendant was charged with vehicular assault. At his trial, the State introduced evidence that 2 1/2 hours after the collision defendant's blood alcohol content was .11 percent. The State presented expert testimony to the effect that, with that blood alcohol content, an individual's driving, 2 1/2 hours earlier, would have been impaired by alcohol.
Among other things, defendant presented evidence in an attempt to show that Spicer's conduct was a proximate cause of the collision. This evidence raised questions about whether Spicer looked left again after looking right, whether he looked left long enough, whether he was traveling too fast when he entered the intersection, whether, in light of a hearing problem, Spicer was able to hear defendant's oncoming car, and whether Spicer's vision was obstructed by parked traffic.
The trial court instructed the jury on the elements of vehicular assault, including the requirement that the State prove beyond a reasonable doubt that defendant operated his vehicle in a reckless manner or was under the influence of intoxicating liquor and that this conduct was "the proximate cause of serious bodily injury to another ..." Instruction 5; Clerk's Papers, at 56.
The trial court gave the following instruction, to which defendant excepted, on proximate cause:
The term "proximate cause" means a cause which, in a direct sequence, unbroken by any new independent cause, produced the injury, and without which the injury would not have happened.
There may be more than one proximate cause of an injury.
Instruction 10; Clerk's Papers, at 61.
*350 Defendant was convicted of vehicular assault. Defendant's main contention is that the vehicular assault statute requires that his conduct be the sole proximate cause of the serious injury to another.
In construing a statute, the goal is to ascertain and carry out the intent of the Legislature as determined primarily by the language of the statute itself. State v. Wilbur, 110 Wash. 2d 16, 18, 749 P.2d 1295 (1988). If the language is plain and unambiguous, the meaning is derived from the wording of the statute itself. Wilbur, at 19.
The vehicular assault statute provides in relevant part:
(1) A person is guilty of vehicular assault if he operates or drives any vehicle:
(a) In a reckless manner, and this conduct is the proximate cause of serious bodily injury to another; or
(b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and this conduct is the proximate cause of serious bodily injury to another.
RCW 46.61.522.
Defendant argues that the use of the word "the" in the phrase "the proximate cause" means that the defendant's conduct must be the sole proximate cause of the injury, and not one of two or more proximate causes. He maintains that rules of grammar and the dictionary definition of the word "the" show that the statute clearly and unambiguously requires that the defendant's conduct be the sole proximate cause of the injury, and that even if the statute is found to be ambiguous the rules of strict construction of penal statutes and lenity require that any doubts be construed in favor of the defendant. Further, defendant argues, comparison of the language used in the vehicular assault statute and the vehicular homicide statute favors his position. Following from his argument that the defendant's actions must be the sole proximate cause of the injury, he maintains that instruction 10 relieved the State of its burden of proof as to causation.
We do not agree with defendant's construction of the statute. Contrary to his position, the use of the word "the" *351 in the vehicular assault statute, as opposed to the word "a", does not mean that the defendant's conduct must be the sole proximate cause of the injury to another. Instead, by this language the Legislature indicated its intent that the defendant's conduct be the proximate cause, as opposed to a cause in fact which does not satisfy the legal definition of the proximate cause of the injury. See Webster's Third New International Dictionary 2368 (1981) (when used with a noun modified by an adjective or by an attributive noun, "the" is a function word which acts to limit the application of the modified noun to that specified by the adjective or by the attributive noun).
[1-3] Moreover, statutes should be construed to effect their purpose, and strained, unlikely, or absurd consequences resulting from a literal reading are to be avoided. State v. Stannard, 109 Wash. 2d 29, 36, 742 P.2d 1244 (1987); State v. Keller, 98 Wash. 2d 725, 728, 657 P.2d 1384 (1983). Even if we were to agree with defendant that "the" is somehow different in the context of the vehicular assault statute than "a" would be, that reading of the statute would lead to absurd results. First, any contributory conduct on the part of the victim or a third party that is a proximate cause of the serious bodily injury would relieve the defendant of criminal culpability regardless of the degree of that conduct. The Legislature surely did not intend such a result.
In a similar vein, the Court of Appeals posited another circumstance leading to absurd results. That is, under defendant's reading of the statute, if the reckless or intoxicated conduct of two drivers combined to cause serious bodily injury to a third party, neither could be successfully prosecuted because neither would be the sole proximate cause of the injury.
Second, contrary to defendant's position, the vehicular assault statute must be harmonized with the vehicular homicide statute in order to avoid absurd results. The vehicular homicide statute was amended in 1983, as part of the same act containing the vehicular assault statute. Laws *352 of 1983, ch. 164, §§ 1, 2. The vehicular homicide statute contains the following language:
When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug ... or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle is guilty of vehicular homicide.
RCW 46.61.520(1).
The statute provides that there may be more than one proximate cause of the death. Cf. State v. Jacobsen, 74 Wash. 2d 36, 37, 442 P.2d 629 (1968) (involving the negligent homicide statute, the predecessor to the current vehicular homicide statute) (there can be more than one proximate cause of an accident and resulting injury or death). It defies logic to conclude that a driver whose conduct results in serious bodily injury to another may escape liability because another's actions also proximately caused the injury, but, if the victim dies instead, no such escape is possible. By harmonizing the statutes, and construing each to mean that the defendant's actions need not be the sole proximate cause of injury or death, we avoid such absurd results. By so doing, we also adhere to the principle that every provision of an act must be harmonized where possible. See State v. S.P., 110 Wash. 2d 886, 890, 756 P.2d 1315 (1988).
The trial court did not erroneously instruct the jury as to the proximate cause requirement.
[4] During oral argument defendant raised for the first time a challenge to an instruction. That challenge is based upon the holding of Seattle v. Gellein, 112 Wash. 2d 58, 768 P.2d 470 (1989). Assuming, arguendo, that the issue is of sufficient constitutional dimension to merit review, there is no reversible error here. While the instruction given by the trial court contains the same error as the Gellein instruction, defendant proposed an instruction containing the very *353 same error. Thus, he waived any error which might otherwise exist. See State v. Kincaid, 103 Wash. 2d 304, 314, 692 P.2d 823 (1985).
Affirmed.
CALLOW, C.J., and UTTER, DOLLIVER, DORE, PEARSON, ANDERSEN, DURHAM, and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355889/ | 13 Kan. App. 2d 375 (1989)
771 P.2d 553
DELORA J. BEAL and STEPHANIE A. MARTIN, Appellants,
v.
RENT-A-CENTER OF AMERICA, INC., Appellee.
Nos. 62,600, 62,601
Court of Appeals of Kansas.
Opinion filed March 31, 1989.
Petition for review denied June 6, 1989.
*376 Ken Seck, of Seck & Seck, of Overland Park, for the appellants.
Donald W. Vasos, of Vasos, Kugler & Dickerson, of Kansas City, for the appellee.
Before ELLIOTT, P.J., LEWIS, J., and JAMES P. BUCHELE, District Judge, assigned.
LEWIS, J.:
This is a consolidated appeal by the plaintiffs from an order of the district court dismissing their actions with prejudice.
The defendant argues that this court does not have jurisdiction to hear the appeal since the notice of appeal in this case was not filed within 30 days of the entry of judgment. We will deal first with the issue of jurisdiction.
This issue can be resolved only by resorting to the record and an analysis of the chronology of events at the trial court level. On April 5, 1988, the trial court filed its order dismissing plaintiffs' petitions with prejudice; on April 29, 1988, the plaintiffs filed a motion to reconsider dismissal; on June 6, 1988, the order of the trial court denying the motion to reconsider was filed; and on July 1, 1988, the plaintiffs filed their notice of appeal.
It is quite apparent that the notice of appeal was filed considerably more than 30 days after the April 5, 1988, order dismissing the actions with prejudice. This particular order would not be reviewable by this court unless plaintiffs took some action that tolled the running of the 30-day time period in which a notice of appeal must be filed. The only response by the plaintiffs to the order of dismissal with prejudice was to file on April 29, 1988 a motion to reconsider the order of dismissal.
It is the position of the defendant that this motion was nothing more than a motion to "alter or amend" filed under K.S.A. 60-259(f), and this motion could only toll the running of the time for filing the notice of appeal if it was filed within ten days of the entry of judgment. If, in fact, we treat the motion to reconsider as being filed under K.S.A. 60-259(f), the defendant would be absolutely correct in its argument and we would have no jurisdiction to hear the appeal. The motion to reconsider, however, specifically stated that it was filed pursuant to K.S.A. 60-260(b), and the only time limitation for the filing of such a motion is that it be filed within a "reasonable time" and not more than one year after the order was entered, at least insofar as that statute is applicable to the issues on this appeal.
*377 The question then is whether the motion to reconsider is to be construed as one asking for relief under K.S.A. 60-259(f) or under K.S.A. 60-260(b). In approaching this issue, we note that the motion itself specifically stated that it sought relief and was filed pursuant to K.S.A. 60-260(b). We do not believe that statement alone is sufficient to determine the issue but it is certainly relevant and worthy of consideration. In reviewing the relief sought by the motion to reconsider, we note that it seeks relief in areas which could be designated as "excusable neglect," "inadvertence," "misrepresentation," or "misconduct," which are all areas governed by K.S.A. 60-260(b), and for which the court can grant relief. We conclude that since the motion filed by the plaintiffs stated that it sought relief under K.S.A. 60-260(b), and since that motion in fact sought relief on the grounds contemplated by K.S.A. 60-260(b), the motion is to be considered as having been filed under that statute and seeking relief under it. We will determine jurisdiction based upon that fact.
A motion filed pursuant to K.S.A. 60-260(b) does not affect the finality of the judgment or suspend its operation, nor does it toll the time for filing a notice of appeal from such judgment. Giles v. Russell, 222 Kan. 629, 632, 567 P.2d 845 (1977). Therefore, applying that rule to the facts in this case, the filing of the motion to reconsider on April 29, 1988, did not toll the time for filing the notice of appeal from the April 5, 1988, order of dismissal. Therefore, the notice of appeal filed on July 1, 1988, was filed more than 30 days after the entry of the order of dismissal, and this court has no jurisdiction to hear an appeal from the order dismissing the action of the plaintiffs with prejudice.
However, the order denying the motion to reconsider was not filed until June 6, 1988, and the notice of appeal was timely filed as to that order only. Our review, therefore, is limited to the order denying the motion to reconsider. The standard of review was set forth by the Kansas Supreme Court in Giles v. Russell, 222 Kan. at 632-33:
"The appellant also appealed from the denial of her motion pursuant to K.S.A. 60-260(b). Appeal from an order denying a motion under K.S.A. 60-260(b) brings up for review only the order of denial itself and not the underlying judgment. [Citations omitted.] A motion for relief from a final judgment under K.S.A. 60-260(b) is addressed to the sound discretion of the district court. The scope of appellate review of the district court's decision is limited to whether the court abused its discretion. [Citation omitted.]"
*378 The record on appeal in this particular case is lacking in several aspects, but we have carefully reviewed what there is of it and conclude that the trial court did not abuse its discretion when it denied the motion to reconsider. The action was dismissed primarily due to the failure of the attorney for the plaintiffs to complete discovery, to comply with the orders of the trial court, and to attend a pretrial hearing. Although dismissal of the action filed by a plaintiff is a severe and harsh action, it remains a very effective method of maintaining docket control and serves as a reminder that deadlines, discovery orders, and pretrial conference hearings cannot be ignored with impunity. The record in this case shows that plaintiffs originally had other counsel, the original counsel withdrew, and the trial court dismissed the plaintiffs' action at that time. The present attorneys for the plaintiffs filed their entries of appearance on October 22, 1988, when they filed a motion to reinstate the action. This motion was, in fact, granted, and the action reinstated. The defendant filed a motion to dismiss in March 1988 on a number of grounds, including the following: (1) the plaintiffs had failed to identify their expert medical witnesses by January 1, 1988, as ordered by the court and failed to complete discovery on March 18, 1988, as ordered by the court; (2) the plaintiffs had failed and refused to answer 17 written interrogatories and six requests for production of documents which had first been served on plaintiffs on August 14, 1987; and (3) the plaintiffs had failed to sign and return a number of medical authorizations which were served on their attorneys in February 1988.
The defendant's motion to dismiss was set for hearing at the time of the pretrial conference on March 25, 1988. On that date counsel for all parties were present when, due to the judge's illness, the hearing was continued to April 4, 1988, and the trial was scheduled for April 18, 1988. The attorney for the defendant, following the March 25 hearing, wrote plaintiffs' attorney a letter confirming and advising of the April 4, 1988, pretrial conference, and the hearing on the defendant's motion to dismiss. However, on April 4, 1988, counsel for the plaintiffs failed to appear at the scheduled pretrial hearing and failed to respond to the motion to dismiss, and the action was dismissed with prejudice.
We are asked to conclude that the trial court abused its discretion when it denied the motion of plaintiffs to reconsider its *379 order of dismissal. However, the plaintiffs have not included in the record a transcript of the hearing on their motion to reconsider. If the plaintiffs presented any evidence whatsoever of excusable neglect, or offered any mitigating circumstances to justify their failure and refusal to comply with discovery and other orders of the court, those facts are not before us. The trial court did not make extensive findings of fact, but in its order of dismissal it did find that the facts set forth in the defendant's motion to dismiss were true and correct. Those facts are, in essence, findings of fact from which the plaintiffs cannot appeal, and they clearly sustain the decision of the trial court.
In reviewing the record, it is obvious that the plaintiffs refused almost totally to comply with discovery and other orders of the trial court. Interrogatories and demands to produce documents remained unanswered for more than seven months after they were served; the trial court's order to list medical witnesses by January 1, 1988, went ignored and unheeded for almost three months; repeated requests by defendant's counsel for medical releases and answers to his interrogatories and demands for production of documents were ignored; and, finally, counsel for the plaintiffs failed to attend the scheduled pretrial conference and the hearing on the defendant's motion to dismiss, although counsel admittedly had ample notice of the date, time, and place of the hearing.
K.S.A. 60-237 provides sufficient authority for the trial court to impose the sanctions which were imposed in this case. In Williams v. Consolidated Investors, Inc., 205 Kan. 728, 733, 472 P.2d 248 (1970), the Kansas Supreme Court in a discussion as to the propriety of dismissal as a sanction stated:
"The penalties permitted by 60-237(b) (2) are not to be imposed for the failure to comply with a production order in the absence of an ability to produce, where a party's failure to produce is shown to be due to inability fostered neither by his own conduct nor by the attendant circumstances of the case. (Read v. Ulmer, 308 F.2d 915.) While 60-237(b) (2) applies to all failures to comply, either willful or not, the presence or lack of good faith in the parties is relevant to the orders which should be given and the severity of the sanctions imposed. (B. F. Goodrich Tire Company v. Lyster, 328 F.2d 411, 415.) The sanction of judgment by default for failure to comply with a production order is the most severe sanction which the court may apply, and its use must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited. However, where a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court and the efficient administration of justice, the application of a *380 stringent sanction is fully justified and should not be disturbed. (Trans World Airlines, Inc. v. Hughes, 332 F.2d 602.) See, also, Ronnau v. Caravan International Corporation, 205 Kan. 154, 468 P.2d 118."
See Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P.2d 449 (1974); Binyon v. Nesseth, 7 Kan. App. 2d 110, 115, 638 P.2d 946 (1981), aff'd 231 Kan. 381, 646 P.2d 1043 (1982).
It appears that the actions of the plaintiffs in this case were willful and deliberate and certainly interfered with the efficient administration of justice. As pointed out earlier, if the plaintiffs offered any evidence to justify their nonaction or to show excusable neglect or mitigating circumstances, this evidence is not in the record on appeal and is not before this court. Based on the record as it is before this court, we conclude that the trial court did not abuse its discretion in denying the motion to reconsider.
The plaintiffs also argue there was misrepresentation to the trial court on the part of the defendant's counsel about the status of the cases. The plaintiffs argue that although they pointed out the alleged misrepresentation to the trial court, the trial court refused to consider those facts when ruling on the motion to reconsider. As pointed out earlier, there is simply no record showing what the trial court did or did not consider when ruling on the motion to reconsider the dismissal. It is the responsibility of the appellants to prepare a record on appeal in such a form as to support their contentions, and they have failed to do so on this issue. We also point out that, even assuming the trial court refused to consider any alleged misrepresentation, there is an abundance of undisputed facts concerning the nonaction of the plaintiffs to justify the court's action, not only in dismissing the petitions, but in refusing to grant the motion to reconsider.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355901/ | 162 Ga. App. 547 (1982)
290 S.E.2d 189
HEILMAN
v.
DEPARTMENT OF TRANSPORTATION.
63280.
Court of Appeals of Georgia.
Decided April 9, 1982.
Rehearing Denied June 14, 1982.
Donald Weissman, for appellant.
William J. Wiggins, Marion O. Gordon, Senior Assistant Attorney General, Michael E. Hobbs, Assistant Attorney General, *550 for appellee.
QUILLIAN, Chief Judge.
This is an appeal by a lessee-condemnee from a condemnation award.
Appellant is a dentist specializing in child dentistry (pedodontics). In 1977 he established his practice on Fairburn Road in Douglasville as lessee of a building which had been extensively remodelled for a dental office to include built-in specialized dental office systems. Fairburn Road is one of the most heavily travelled roads in Douglasville and appellant is the only pedodontist in Douglas County.
Appellee condemned part of the property in May 1979 to widen Fairburn Road. This resulted in the destruction of appellant's office as the condemnation line went through the center of the building he occupied.
At a jury trial appellee's appraisers valued the property as to the lessor and the specialized dental fixtures in the building but concluded that appellant's lease, which had over two years to run, had no value. Appellant testified the lease had value to him because of the relatively advantageous rent and the highly desirable location, for which there was no fair market value. No other dental offices were available for rent anywhere in the Douglasville area. Appellant moved to a less desirable location in Douglasville and had the building outfitted as a dental office. He was permitted to testify that the move resulted in a loss of patients and profits in an amount in excess of $21,000 at the time of the trial, 21 months after the taking. However, he was not permitted to present evidence of the value of the leasehold to himself, or of the cost of duplicating at his new location the specialized dental equipment that had been built into the condemned property to make it into a dental office. A special master had awarded appellant $10,200. The jury returned verdicts for the *548 lessor and appellant lessee, awarding appellant $7,750. Held:
1. The principal complaint set forth in many enumerations is that the trial court consistently refused to consider the appellant's interest in the property unique, refused to admit evidence demonstrating uniqueness, and refused to instruct the jury on compensation for unique property, instructing them instead on the fair market value method of evaluation.
"Every person who has an established business. . . in a location which cannot be duplicated within the immediate area suffers a loss which is particular and unique to him and not shared by members of the general public dealing in such property and buying and selling it for profit. Market value is not necessarily just and adequate compensation to them, for market value presupposes not only a buyer willing to purchase but a seller willing to sell. If the property must be duplicated for the business to survive, and if there is no substantially comparable property within the area, then the loss of the forced seller is such that market value does not represent just and adequate compensation to him." Housing Auth. v. Troncalli, 111 Ga. App. 515, 518 (142 SE2d 93).
"[W]hen the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land whether the destruction of his business is total or merely partial, provided only that the loss is not remote or speculative. [Cit.] . . . business losses are recoverable as a separate item only if the property is `unique.' [Cit.]
"The meaning of `unique' is as set forth in Housing Authority &c. of Atlanta v. Southern R. Co., 245 Ga. 229 (264 SE2d 174)." D.O.T. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10).
"Actually the definition of uniqueness is very simple: Since valuing property at its `fair market value' presupposes a willing buyer and a willing seller, properties are `unique' such that fair market value will not afford just and adequate compensation when they are not a type generally bought or sold in the open market. [Cit.] In other words unique property is simply property which must be valued by something other than the fair market value standard." Housing Auth. v. Southern R. Co., 245 Ga. 229 (1), 230 (264 SE2d 174).
"Whether or not property is unique is a jury question. [Cits.]" D.O.T. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315, supra.
From the evidence of the character, location and use of the property by appellant and unavailability of comparable property in the area we find that the issue of uniqueness of the property was raised and should have been submitted by the trial court to the jury for decision. The trial court's charge to the jury was not adequate to do this.
*549 Since the issue of the uniqueness of the property was raised, it was error to exclude appellant's testimony of the value of the leasehold to himself (D.O.T. v. Brown, 155 Ga. App. 622 (2) (271 SE2d 876); DeKalb County v. Fulton Nat. Bank, 156 Ga. App. 253 (1) (274 SE2d 649); Allen v. Hall County, 156 Ga. App. 629 (2) (275 SE2d 713)).
Therefore, the judgment must be reversed.
2. Appellant's counsel wanted to make a tender of proof to perfect the record on evidence which the trial judge had ruled out. The judge had indicated approval of counsel's suggestion that the tender of proof be made while the jury was deliberating. At the end of the second day of a three-day trial, after all the evidence was in and arguments concluded, the jury was excused for the night. At that time, without requesting permission of the judge, counsel called appellant to the stand and commenced making the tender of proof. The court asked counsel what he was doing, as he had ruled out such evidence. Counsel told him he was making a tender of proof. The judge said he was going home and left the bench. Counsel continued with the tender. The judge returned and told the court reporter to leave. Counsel thereupon began making a statement for the record. The judge sent for the sheriff. Counsel continued with his statement and tried to get the reporter to stay or to come in early the following morning. The judge then pronounced counsel in contempt.
Contrary to counsel's assertion that the contempt was error because the judge had expressly authorized the making of the tender at that time, the authorization was for the time the jury was deliberating, not when the court was recessed for the night. Counsel proceeded without leave of court and persisted in the face of the judge's obvious disapproval of making the tender at that time.
We find no error. Summary punishment for contempt was clearly authorized under Code Ann. § 24-105 (Ga. L. 1892, p. 65). See Crudup v. State, 106 Ga. App. 833 (129 SE2d 183).
3. The remaining enumerations are either resolved by the foregoing findings, are not meritorious, or are not likely to recur in further proceedings.
Judgment reversed. Shulman, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355868/ | 532 S.E.2d 380 (2000)
272 Ga. 572
WALDRIP
v.
HEAD.
No. S00A0383.
Supreme Court of Georgia.
June 12, 2000.
Reconsideration Denied July 7, 2000.
*383 Drinker, Biddle & Reath, Lawrence J. Fox, David J. Kessler, Philadelphia, PA, for appellant.
Thurbert E. Baker, Attorney General, Patricia B. Burton, Assistant Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.
Timothy P. Terrell, Roy M. Sobelson, Atlanta, Jack L. Sammons, Jr., Macon, L. Ray Patterson, Athens, for amici curiae. *381
*382 FLETCHER, Presiding Justice.
A jury convicted Tommy Lee Waldrip of murder, and he was sentenced to death.[1] After Waldrip filed a habeas petition alleging ineffective assistance of counsel, the warden sought the files of Waldrip's trial and appellate counsel. The habeas court granted the warden's motion to compel access to the complete files of Waldrip's trial and appellate counsel. We granted this application to determine the extent of the waiver of the attorney-client privilege when a habeas petitioner asserts a claim for ineffective assistance of trial counsel. Following the rule adopted in other states, we hold that the filing of an ineffective assistance claim is an implied waiver of the attorney-client privilege limited to the documents that are relevant to the petitioner's claim. Because of the potential problems that would be created by public disclosure of the documents, we further conclude that Waldrip is entitled to a protective order prohibiting disclosure of the files obtained in this habeas proceeding to persons other than those needed to assist the warden in rebutting the claim of ineffectiveness. Therefore, we reverse.
FACTS
Bypassing the requirements of the Georgia Civil Practice Act,[2] the state filed its motion to compel in July 1999. Three days later, the habeas court entered an order compelling Waldrip's former counsel to produce their entire files. When Waldrip requested an opportunity to respond, the habeas court vacated its order and gave Waldrip ten days to respond. In his response, Waldrip opposed the motion and sought a protective order restricting disclosure to the habeas proceeding and the state attorney general's office. In September 1999, the warden wrote a letter brief asking the habeas court to rule on his motion to compel and attaching a proposed order. Two days later, the habeas court entered the order. It reinstated the July order and further required Waldrip's previous counsel to produce their complete files to the warden. In October, the habeas court issued an order clarifying that habeas counsel did not have to produce any of their files or work product and denying the motion for a protective order on the grounds that the issue was not ripe for review. Although Waldrip requested a certificate of immediate review, the trial court did not rule on the motion.
Waldrip filed both an application for interlocutory appeal and a direct appeal from the clarification order, and the warden filed motions to dismiss. This Court granted the application, consolidated it with the direct appeal, and asked the parties to address three questions:
1. Is an order in a habeas proceeding directing petitioner's trial and appellate counsel to produce all their files directly appealable as a collateral order?
2. What is the scope of the waiver of the attorney-client privilege when a habeas petitioner asserts a claim for ineffectiveness of counsel?
3. When former counsel's files or a portion thereof are required to be produced in a habeas proceeding, do the files retain any measure of confidentiality or privilege?
JURISDICTION
1. As the state's highest appellate court, this Court reviews the decisions of other courts in the state in four ways: (1) by direct appeal;[3] (2) by discretionary or *384 interlocutory application;[4] (3) by writ of certiorari;[5] and (4) by certified question.[6] We review state trial court decisions by direct appeal or application, decisions of the Court of Appeals of the State of Georgia by petition for certiorari or by certified question, and federal court decisions by certified question from the federal appellate courts.[7]
Generally, the Georgia Code limits the right of direct appeal to final judgments or rulings that have a final or irreparable effect on the rights of parties.[8] This Court has created an exception for "collateral orders" when the issue is substantially separate from the basic issues in the complaint, an important right may be lost if review must wait until a case is finally resolved, and nothing further in the underlying action can affect the issue on appeal.[9]
Although Waldrip argues that he has a right to directly appeal the October clarification order, we conclude that it does not meet the collateral order exception to the final judgment rule. The issue of whether Waldrip waived his attorney-client privilege is not a separate issue from his claim in his habeas petition that his trial and appellate counsel were ineffective; instead, the privilege and claim are directly related. Therefore, we decline to extend the collateral order doctrine to the discovery order in this case and dismiss the direct appeal.[10]
In addition to filing a direct appeal, Waldrip filed an application for an interlocutory appeal. Since discovery orders generally are interlocutory, our appellate courts ordinarily obtain jurisdiction over them through the application process. This process requires the trial court to certify that its order is "of such importance to the case that immediate review should be had."[11] The purpose of the certificate requirement is to permit trial courts, rather than parties, to regulate the litigation;[12] it is not to permit trial courts to deprive appellate courts of their jurisdiction. Under our present rules, strict adherence to the certificate requirement provides no alternative procedure in the event that the appellate court disagrees with the trial court's decision that "immediate review should be had."
Because of this defect in the interlocutory review process, this Court on rare occasions has assumed jurisdiction to consider an appeal despite the absence of a final judgment or a certificate of immediate review from the trial court. We have chosen to bypass the statutory requirements for interlocutory review and address the substantive issues raised on appeal when the case presented an important issue of first impression concerning a recently enacted statute for which a precedent was desirable,[13] dismissal would deny the litigant the right of appellate review in this state,[14] or consideration of the *385 trial court order as "final" served the interest of judicial economy.[15] In effect, this Court has granted the application for interlocutory review in those exceptional cases that involve an issue of great concern, gravity, and importance to the public and no timely opportunity for appellate review.
Despite the dissent's assertion that this Court is overstepping its authority by ignoring the certificate requirement, both the state constitution and code give this Court authority to establish rules of appellate procedure for this state. The constitution states that each court may exercise the powers "necessary in aid of its jurisdiction" and gives the Supreme Court express responsibility for administering the entire judicial system.[16] The code gives this Court authority to "establish, amend, and alter its own rules of practice."[17] Even if the legislature had not expressly provided this authority, this Court has the inherent power to maintain a court system that provides for the administration of justice in an orderly and efficient manner.[18] As another court has explained, "A court uses its inherent power when constitutional provisions, statutes, or court rules fail to supply answers to problems or when courts find themselves compelled to provide solutions that enable the litigative process to proceed smoothly."[19]
Just as this Court granted parties the right of direct appeal of collateral orders, although there was no legislative grant of authority for that action, this Court has the power to consider appeals of interlocutory orders when we disagree with the trial court concerning the need for immediate appellate review of an interlocutory order. Although we could enact the rule through our formal rule-making process, we choose to adopt this rule of procedure through an opinion, as we did in adopting the collateral order doctrine, to explain both the rule and its rationale.[20]
Our adoption of this rule is consistent with national standards developed by the American Bar Association's Judicial Administration Division. The Standards Relating to Appellate Courts recommend that appellate courts retain the discretion of interlocutory review when it would materially advance the end of the litigation, protect a party from irreparable harm, or clarify an issue of public importance.[21] "The most desirable combination is to provide that, in every case where interlocutory review is sought, the lower court should give its opinion whether such review is appropriate, but that its determination should not bind the appellate court."[22]
In this case, Waldrip sought a certificate of immediate review, but the trial court did not grant his request. We disagreed with the trial court's decision and granted the interlocutory application because it presents the important issue of the scope of the waiver of the attorney-client privilege when a habeas petitioner files a claim of ineffective assistance of counsel. In addition, every habeas *386 court addressing the waiver issue has refused to issue a certificate of immediate review,[23] thus precluding appellate review of the substantive issues that Waldrip has raised. Moreover, once the entire files of trial and appellate counsel are released, the habeas petitioner has no meaningful way to protect privileged matter that is unrelated to the specific claim of ineffectiveness or to restrict its use. Given the importance of the waiver issue, the frequency with which it is being litigated in habeas proceedings, the breadth of the orders being entered, and the trial courts' unwillingness to certify the issue for review, the establishment of a precedent appears desirable.[24] Thus, this application is one of those rare cases in which we exercise our discretion to review an interlocutory order without a trial court certificate because the appeal presents a legal issue of great concern and importance and rights may be lost if review is delayed until a final judgment is entered.
SCOPE OF WAIVER OF ATTORNEY-CLIENT PRIVILEGE
2. Communications between attorney and client are excluded from evidence in this state on grounds of public policy.[25] The privilege belongs to the client and may be waived.[26] For example, we have held that an attorney is released from the obligations of secrecy when a client charges negligence, malpractice, or other professional misconduct in an action against the attorney[27] or a habeas petitioner claims that he or she was not informed about the consequences of a guilty plea.[28] As a result, an attorney who defends a suspect against criminal charges at trial may testify in a habeas corpus action concerning matters growing out of the attorney client relationship.[29]
Although these previous cases involved only the testimony of trial counsel, we conclude that any waiver of the attorney-client privilege is not limited solely to the attorney's testimony, but extends also to documents in trial counsel's files. The purpose of the habeas corpus hearing is to determine the truth of the allegations that constitutional rights were violated. "A petitioner for habeas corpus relief cannot allege that he was deprived of his constitutional rights and then invoke the shield of the attorney-client privilege to prevent an accurate determination of the merit of his claim."[30] Given the passage of time and the difficulty that counsel may have in remembering the reasons for a particular strategy at trial or on appeal, the state should have the right to review the attorney's files to refresh counsel's memory *387 concerning disputed matters.[31]
Although we have never expressly addressed the scope of the waiver of the attorney-client privilege when a habeas petitioner asserts an ineffective assistance of counsel claim, we have previously limited any implied waiver of the attorney-client privilege. In Felts v. State,[32] the defendant argued that his attorney-client privilege was violated when the state impeached him concerning his testimony at a previous trial that he had lied to his attorney. We held that Felts had waived his privilege concerning his lie that someone gave him the murder weapon at the scene of the shooting by testifying without objection about the matter at his earlier trial, but limited the waiver to that statement. Similarly, when a habeas petitioner claimed that she was not informed of the consequences of her guilty plea, her attorney was permitted to testify concerning the information he gave her regarding the plea.[33] The rationale for these decisions is that the client waives the privilege to the extent necessary to allow the attorney to defend his or her own conduct against the charges of misconduct.[34]
Other states addressing the waiver issue provide persuasive authority for a rule limiting waiver of any privilege to communications related to the specific claims on ineffectiveness.[35] When faced with the same issue, the North Carolina Supreme Court held that the defendant waived the benefits of both the attorney-client privilege and work product doctrine on matters relevant to the allegations of ineffective assistance of counsel. Despite the defendant's broad-ranging attack on counsel's representation at trial, that court concluded that the trial court exceeded its authority in directing the defendant to provide the state access to all files related to the case.[36]
Based on this persuasive authority, our prior decisions, and the reason for finding an implied waiver, we reject the state's contention that the filing of an ineffectiveness claim is an absolute waiver that entitles it to the complete file of former trial and appellate counsel. Instead, we hold that a habeas petitioner who asserts a claim of ineffective assistance of counsel makes a limited waiver of the attorney-client privilege and work product doctrine and the state is entitled only to counsel's documents and files relevant to the specific allegations of ineffectiveness.
To implement this holding, we suggest that parties follow the procedure used in resolving similar discovery disputes in both civil and criminal cases. Initially, petitioner's current counsel determines the documents waived by the privilege. When the state disagrees, the parties should attempt to resolve their dispute; if they are unable to reach an agreement, the state may move for an in-camera inspection of the disputed parts of the files. At that point, the habeas court needs to review the files and order the disclosure of the parts that are relevant to the issues raised.[37]
*388 PROTECTING THE CONFIDENTIALITY OF TRIAL COUNSEL'S FILES
3. The Civil Practice Act provides that a court, for good cause shown, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden."[38] The order may deny discovery, limit its scope to certain matters, or specify the terms and conditions under which it may be had.
Waldrip seeks a protective order restricting disclosure of documents to the habeas proceeding and the attorney general's office, which represents the warden. In particular, he requests that the documents or their contents not be disclosed to law enforcement officers or prosecutors because it would chill his constitutional rights under the fifth and sixth amendments and make a fair retrial impossible. As support, Waldrip cites Commonwealth v. Chmiel.[39] In that case, the Pennsylvania Supreme Court reversed a murder conviction and death sentence because the trial court permitted the state to introduce prior counsel's testimony concerning an ineffectiveness claim at the defendant's second trial. The court held that the policies inherent in the attorney-client privilege restricted the use, as well as the scope, of permitted disclosures because of the defendant's right to effective assistance of counsel and right against forced self-incrimination. "Just as an attorney may not respond to allegations of ineffectiveness by disclosing client confidences unrelated to such allegations, so the client confidences properly disclosed by an attorney at an ineffectiveness hearing may not be imported into the client's subsequent trial on criminal charges."[40]
Because Waldrip's petition has not been resolved and there is no pending trial, we do not need to address the issue raised in the Pennsylvania case concerning the use of an attorney's testimony at a client's subsequent trial. Rather, our inquiry is limited to the use of former counsel's files in this habeas proceeding. Having seen the potential problems that can be created by public disclosure and use of counsel's files, we conclude that the files retain their confidential nature despite the client's implied waiver of the attorney-client privilege in this habeas corpus proceeding. To protect the petitioner's constitutional right to effective assistance of counsel and against compelled self-incrimination, we hold that Waldrip is entitled to a protective order limiting disclosure in this habeas proceeding to persons needed to assist the warden in rebutting the claim of ineffectiveness.
Judgment reversed.
All the Justices concur, except CARLEY, THOMPSON and HINES, JJ., who dissent.
CARLEY, Justice, dissenting.
This Court is bound by the applicable constitutional and statutory provisions which were enacted for the purposes of establishing its jurisdiction and limiting its power. Thus, it should not be considered a novel proposition that "[t]he provisions of the law respecting the procedure to be followed in perfecting appeals to this [C]ourt are jurisdictional, and unless this [C]ourt has jurisdiction of a case, it is without power or authority to render a judgment upon review." Spivey v. Nalley, 212 Ga. 810, 96 S.E.2d 260 (1957). Because the exercise of jurisdiction over this case is contrary to that controlling principle and is based upon nothing other than the majority's own subjective determination that it is somehow appropriate for it to rule on the merits, I dissent.
At issue in this currently pending habeas corpus proceeding is a discovery order. In this connection, we must bear in mind that "habeas corpus is not a criminal proceeding, but is considered to be civil in nature. [Cits.]" Gibson v. Turpin, 270 Ga. 855, 857(1), 513 S.E.2d 186 (1999). The only jurisdictional question which the parties were asked to address is whether that non-final ruling is directly appealable as a collateral order. The Court correctly answers that question in the negative. However, the majority then proceeds to hold that the Court nevertheless *389 has jurisdiction over this case because it will deem it to be a valid "interlocutory" appeal, even though there was absolutely no compliance with the requirement of OCGA § 5-6-34(b) that the trial court certify its discovery order for immediate review.
The majority does not cite either controlling or persuasive authority for its unprecedented holding. I submit that there is no such authority because in this case, the absence of jurisdiction pursuant to OCGA § 5-6-34 is undisputed. Compare In re Board of Twiggs County Commissioners, 249 Ga. 642(1), 292 S.E.2d 673 (1982). Heretofore, certification by the trial court has always been considered a necessary and indispensable prerequisite to appellate jurisdiction over a civil case involving an interlocutory discovery order. See Johnson & Johnson v. Kaufman, 226 Ga.App. 77, 485 S.E.2d 525 (1997). Compare Isaacs v. State, 257 Ga. 798, 364 S.E.2d 567 (1988) (denial of plea in abatement and motion for acquittal in a criminal case addressed under the collateral order exception). In Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 589(1), 408 S.E.2d 103 (1991), we unambiguously held that
the certificate of immediate review is not "surplusage." [Cit.] The certificate is an essential component of a trial court's power to control litigation. Therefore, a party seeking appellate review from an interlocutory order must follow the interlocutory-application subsection, OCGA § 5-6-34(b), seek a certificate of immediate review from the trial court, and comply with the time limitations therein.
The majority does not even attempt to distinguish Scruggs. Instead, it summarily discounts the established procedure as a "defect in the interlocutory review process" and posits that the exercise of jurisdiction in this case is consistent with certain American Bar Association Standards. In my opinion, a duly enacted statute of our General Assembly does not constitute and cannot be considered to be a "defect" which this Court or any court is at liberty to ignore because it prefers the pronouncements from a source which it perceives to be more enlightened. Instead, I strongly believe that the judiciary must comply with those legislative enactments, rather than embrace the recommendations made by some non-binding extraneous entity. Our General Assembly, not the American Bar Association, determines the manner in which an order entered in a Georgia trial court is appealable. "[T]he right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts." Fife v. Johnston, 225 Ga. 447, 169 S.E.2d 167 (1969). The legislative branch of government in any jurisdiction may or may not consider and adopt the American Bar Association Standards cited by the majority. However, unless and until the Georgia General Assembly enacts those recommendations as the law of this state, they are completely irrelevant to a determination of this Court's authority to hear a particular case.
The majority predicates its exercise of jurisdiction upon the concept of inherent power. However, "`[t]he very conception of inherent power carries with it the implication that its use is for occasions not provided for by established methods....'" McCorkle v. Judges of Superior Court of Chatham County, 260 Ga. 315, 317, fn. 1, 392 S.E.2d 707 (1990) (Hunt, J., concurring). Certainly then this is not an appropriate case for the exercise of inherent power, because there is an "established method" for appealing the interlocutory discovery order, and there has been no compliance with the prescribed procedure. No court is at liberty "to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error." Rowland v. State, 264 Ga. 872, 874(1), 452 S.E.2d 756 (1995). However, that is exactly what has been done in this case. According to the concept of inherent judicial power adopted today, either this Court or the Court of Appeals is now authorized to ignore clear statutory limits on its jurisdiction in any case simply because a majority of its members has a subjective disagreement with the propriety of those limitations as applied to that case. In my opinion, this constitutes blatant judicial usurpation of the legislative function, and cannot be considered to be the legitimate exercise of inherent judicial authority. "The Legislature, *390 being the sovereign power in the State, while acting within the pale of its constitutional competency, it is the province of the Courts to interpret its mandates, and their duty to obey them, however absurd and unreasonable they may appear." Flint River Steamboat Co. v. Foster, 5 Ga. 194(2) (1848).
Although the General Assembly has determined that the trial courts of this state are to play an important, integral and indispensable function in the appeal of any interlocutory order, it is now apparent that a majority of this Court, by employing the pretext of exercising its inherent power, will ignore the legislative mandate and henceforth will dispense with the lower court's input in any and every case which, in its unbridled discretion, it wishes to review. I dissent because I have consistently subscribed to the principle that the judiciary should lead by example and, thus, that this Court must faithfully adhere to the constitutional and statutory provisions which apply to it to the same extent that it ensures the just enforcement of such of those provisions that are applicable to others. Because we have no jurisdiction over this case, this Court cannot, the majority should not and I will not reach the merits.
I am authorized to state that Justice THOMPSON and Justice HINES join in this dissent.
NOTES
[1] Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299 (1997).
[2] See OCGA § 9-11-37 (1993).
[3] See OCGA § 5-6-34(a) (1995).
[4] See OCGA §§ 5-6-35; 5-6-34(b) (1995).
[5] See Ga. Const. art. 6, sec. 6, para. 5 (1998); OCGA § 5-6-15 (1995); Ga. Sup.Ct. R. 38-45.
[6] See Ga. Const. art. 6, sec. 6, para. 3(7) (1998); art. 6, sec. 6, para. 4.
[7] See Ga. Const. art. 6, sec. 6, para. 4 (1998); OCGA § 15-2-9 (1999).
[8] See In re Paul, 270 Ga. 680, 682, 513 S.E.2d 219 (1999); OCGA § 5-6-34(a)(2)-(8) (1995).
[9] See Scroggins v. Edmondson, 250 Ga. 430, 431-432, 297 S.E.2d 469 (1982); Patterson v. State, 248 Ga. 875, 876-877, 287 S.E.2d 7 (1982).
[10] See Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 80-82, 485 S.E.2d 525 (1997); see also Turner v. Giles, 264 Ga. 812, 813, 450 S.E.2d 421 (1994) (dismissing direct appeal after declining to adopt federal rule permitting a direct appeal from an interlocutory order denying a claim of qualified immunity in a § 1983 action and dismissing direct appeal).
[11] See OCGA § 5-6-34(b) (1995).
[12] See Scruggs v. Georgia Dep't of Human Resources, 261 Ga. 587, 408 S.E.2d 103 (1991).
[13] See In re Board of Twiggs County Comm'rs, 249 Ga. 642, 643, 292 S.E.2d 673 (1982) ("we have chosen to pretermit the procedural issue and decide the appeal on its merits ... because an important first-impression issue has been raised under this recently enacted and previously unconstrued public revenue statute").
[14] See G.W. v. State, 233 Ga. 274, 210 S.E.2d 805 (1974) (reversing court of appeals decision dismissing appeal in which nonresident juveniles challenged adjudicatory order transferring them to juvenile court authorities of another state); cf. Scroggins, 250 Ga. at 432, 297 S.E.2d 469 (orders granting motions to cancel lis pendens are directly appealable under collateral order exception because "an important right might be lost if review had to await final judgment").
[15] See Isaacs v. State, 257 Ga. 798, 364 S.E.2d 567 (1988) (considering appeal of interlocutory order denying plea in abatement and motion for acquittal in death penalty case, even though trial court did not grant certificate of immediate review, based on judicial economy).
[16] See Ga. Const. art. 6, sec. 1, para. 4; art. 6, sec. 9, para. 1.
[17] See OCGA § 15-2-8 (1999).
[18] Garcia v. Miller, 261 Ga. 531, 532, 408 S.E.2d 97 (1991); see also McCorkle v. Judges of Superior Court, 260 Ga. 315, 317 n. 1, 392 S.E.2d 707 (1990) (Hunt, J., concurring) (court exercises its inherent power only when established methods fail); Kirwan v. Welch, 133 Ill. 2d 163, 139 Ill. Dec. 836, 549 N.E.2d 348 (1989) (recognizing the legislature's concurrent jurisdiction to promulgate rules of procedure if they do not infringe on the courts' inherent powers).
[19] State v. Buckner, 351 N.C. 401, 527 S.E.2d 307 (2000).
[20] See McCowan v. Brooks, 113 Ga. 384, 39 S.E. 112 (1901) ("the court may, without a formal amendment of the rule, pass an order which will accomplish the same purpose in the particular case as was intended to be accomplished by the rule adopted").
[21] See Standards Relating to App. Cts. § 3.12 (1994).
[22] See id. at 34 commentary.
[23] See McMichen v. Turpin, S99A0057 (Ga.Sup. Ct. Oct. 21, 1998); Wellons v. Turpin, S98A0320 (Ga.Sup.Ct. Dec. 1, 1997).
[24] See McClain v. Turpin, 97-V-743 (Butts Co.Super. Ct. June 3, 1999) (motion to compel access to trial counsel's files granted after trial and habeas counsel did not oppose motion); Alderman v. Turpin, 94-V-720 (Butts Co.Super. Ct. April 23, 1999) (petitioner must produce complete trial attorney's file in re-sentencing trial and appeal); Burgess v. Turpin, 95-V-656 (Butts Co.Super. Ct. March 30, 1999) (petitioner must provide access to entire files of former defense counsel); Greene v. Turpin, 98-V-320 (Butts Co.Super. Ct. Oct. 6, 1998) (petitioner must provide access to complete files of former trial counsel); McMichen v. Turpin, 97-V-005 (Butts Co.Super. Ct. Aug. 17, 1998) (warden is entitled to complete files of petitioner's former trial and appellate counsel); Wellons v. Turpin, 97-V-339 (Butts Co.Super. Ct. Sept. 30, 1997) (petitioner must produce complete trial attorney's file with one exception related to voir dire material); Davis v. Turpin, 94-V-162 (Butts Co.Super. Ct. Jan. 9, 1997) (since waiver covers the entire period of representation by all of petitioner's former attorneys, all areas of trial and appellate attorneys' files shall be open for inspection).
[25] OCGA §§ 24-9-21(2); 24-9-24; 24-9-25 (1995).
[26] See Alexander Scherr, Green Georgia Law of Evidence §§ 194-195 (5th ed.1999).
[27] Daughtry v. Cobb, 189 Ga. 113, 118, 5 S.E.2d 352 (1939).
[28] Bailey v. Baker, 232 Ga. 84, 86, 205 S.E.2d 278 (1974).
[29] Roberts v. Greenway, 233 Ga. 473, 477, 211 S.E.2d 764 (1975) (attorney may testify when habeas petitioner challenges validity of guilty plea); Peppers v. Balkcom, 218 Ga. 749, 751, 130 S.E.2d 709 (1963) (counsel had right to defend himself against charges of professional misconduct and negligence in handling defense).
[30] Roberts, 233 Ga. at 477, 211 S.E.2d 764.
[31] See Reed v. State, 640 So. 2d 1094, 1097 (Fla. 1994). But see Waitkus v. Mauet, 157 Ariz. 339, 757 P.2d 615, 616 (App.1988) (waiver of attorney-client privilege permits questioning of attorney at evidentiary hearing but not access to the attorney's work product and trial preparation files).
[32] 244 Ga. 503, 505, 260 S.E.2d 887 (1979).
[33] See Bailey, 232 Ga. at 86, 205 S.E.2d 278.
[34] See Paul S. Milich, Georgia Rules of Evidence § 21.16 (1995); Hyde v. State, 70 Ga.App. 823, 827, 29 S.E.2d 820 (1944).
[35] See State v. Walen, 563 N.W.2d 742, 753 (Minn.1997) (waiver reaches only communications relevant to the issue of ineffective assistance of counsel); State v. Taylor, 327 N.C. 147, 393 S.E.2d 801, 805 (1990) (waiver limited to matters relevant to allegations of ineffective assistance of counsel); In re Dean, 142 N.H. 889, 711 A.2d 257, 258 (1998) (ineffective assistance of counsel claims constitute a waiver to the extent relevant to the claim).
[36] See Taylor, 393 S.E.2d at 805.
[37] See McKinnon v. Smock, 264 Ga. 375, 378, 445 S.E.2d 526 (1994) (providing for in-camera review when dispute arises concerning whether document contains protected work product material); Hall v. Madison, 263 Ga. 73, 74, 428 S.E.2d 345 (1993) (trial court in habeas proceeding may examine prosecutor's voir dire notes in camera to determine whether disclosure is warranted); Tribble v. State, 248 Ga. 274, 275-276, 280 S.E.2d 352 (1981) (providing for in-camera inspection of state's file for exculpatory material based on request by defense).
[38] See OCGA § 9-11-26(c) (1993).
[39] 558 Pa. 478, 738 A.2d 406 (1999).
[40] Id. at 424. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355905/ | 290 S.E.2d 725 (1982)
Jimmy W. CURLINGS and Wife, Martha Curlings
v.
Henderson W. MACEMORE and Wife, Sally Macemore.
No. 8123DC904.
Court of Appeals of North Carolina.
May 4, 1982.
William M. Allen, Jr., Yadkinville, for plaintiffs-appellants.
Finger, Park & Parker by Daniel J. Park, Elkin, for defendants-appellees.
*726 BECTON, Judge.
We agree with plaintiffs. The trial court erred in dismissing plaintiffs' action on the ground that it should have been asserted as a counterclaim in a prior action brought by defendants against plaintiffs.
G.S. 1A-1, Rule 13(a) states in relevant part that:
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction....
In Apartments, Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323 (1980), this Court, faced with a factual situation that was the reverse of the factual situation presented in the case at bar, held that plaintiffs' claim for summary ejectment was not a compulsory counterclaim in defendants' prior action for breach of a lease agreement, breach of covenants of fitness and habitability, and breach of duty of repair since the nature of the actions and remedies sought were too divergent. We said the following in Landrum:
In order to find that an action must be filed as a compulsory counterclaim pursuant to G.S. 1A-1, Rule 13(a), a court must first find a logical relationship between the factual backgrounds of the two claims. In addition, the court must find a logical relationship between the nature of the actions. Rule 13(a) is a tool designed to further judicial economy. The tool should not be used to combine actions that, despite their origin in a common factual background, have no logical relationship to each other.
Id. at 494, 263 S.E.2d at 325.
Our interpretation of Rule 13(a) is no different than the interpretation placed on Rule 13(a) of the Federal Rules of Civil Procedure by numerous federal courts. See Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1291 (7th Cir. 1980); Whigham v. Beneficial Finance Co. of Fayetteville, 599 F.2d 1322 (4th Cir. 1979); 6 Wright and Miller, Federal Practice and Procedure : Civil Section 410 (1971). In Whigham, the Fourth Circuit, in determining that a lender's claim for debt against a borrower who sued for a violation of the Truth-In-Lending Act was not a compulsory counterclaim, listed the following criteria to consider when determining whether a claim is a compulsory counterclaim: "[ (1) ] whether the issues of fact and law raised by the claim and counterclaim are largely the same[; (2) ] whether substantially the same evidence bears on both claims[;] and [ (3) ] whether any logical relationship exists between the two claims." Id. at 1323.
Turning now to an examination of the facts in the case at bar, we note first that the trial court did not find as a fact that plaintiffs' present action for damages logically relates to defendants' prior action in summary ejectment either "factually" or in "nature." Indeed, the common factual background is at best tenuous since the only relationship common to both actions is the landlord-tenant relationship. Second, the issues of fact and law are different in a summary ejectment proceeding from the issues involved in a negligence proceeding. Plaintiffs' claim is whether the defendant landlord had a duty of care for the maintenance of leased property and breached that duty; the defendant landlord's claim, on the other hand, was based on a simple statutory right to eject once the lease was terminated. Plaintiff must show evidence of a duty of care and a breach of that duty to prove damages. The defendant needed only to produce a lease agreement for consideration in light of the statutory provisions. Further, plaintiffs' claim was for a substantial amount of damages whereas defendants' claim was solely for ejectment.
We hold that plaintiffs' negligence action and defendants' summary ejectment action were highly divergent in nature and in remedies sought. Defendants' affirmative defense should have been stricken from the Answer. Consequently, it was error for the trial court to dismiss plaintiffs' claim on the *727 ground that it should have been asserted as a compulsory counterclaim in defendants' prior action.
For the foregoing reasons, the Order of the trial court is
Reversed.
HEDRICK and HILL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1355916/ | 162 Ga. App. 148 (1982)
290 S.E.2d 342
WARD
v.
CITY OF MILLEN et al.
63758.
Court of Appeals of Georgia.
Decided April 16, 1982.
R. H. Reeves III, G. Clyde Dekle, Jr., for appellant.
Carl J. Surrett, Mary G. Colley, for appellees.
DEEN, Presiding Judge.
The appellant's 25-year-old son was drowned while swimming with younger friends in a pool maintained by the National Association for the Advancement of Colored People (NAACP) on a nominal lease from the City of Millen. Other defendants include the *149 president and vice president of the local chapter and the single lifeguard on duty at the time. At the conclusion of the evidence a verdict was directed in favor of the defendants, from which judgment this appeal is taken.
One who maintains a swimming pool for the benefit of the public is not an insurer of its patrons, but is liable for negligence in its maintenance proximately resulting in the death of one using it for its intended purpose. Y.M.C.A. v. Bailey, 107 Ga. App. 417 (130 SE2d 242) (1963); S & C Co. v. Horne (Va.) 235 SE2d 456 (1977). The appellant points to three bits of testimony in this record which it is contended make a jury question: The maintenance of the water in a murky condition; the testimony of one witness that the lifeguard had been inattentive in going over to the fence to engage in social conversation, and the manner in which cardiopulmonary resuscitation was effected.
That the water in the pool was exceedingly cloudy is established by the fact that although the deceased had been standing in water between 4 and 4-1/2 feet deep at the rope dividing the deep and shallow end of the pool, his body could not be seen on the bottom and it was necessary for the lifeguard to send someone down to search for him. The body was located in the spot where he had been standing, lying face up on the bottom. The guard lifted him to the deck and began both mouth to mouth breathing (he was not breathing naturally) and cardiac resuscitation by chest compression (although he still had a faint natural pulse).
The deceased was the only adult at the pool other than the lifeguard and one of the club officers who was engaged in repairing the diving board. Because they could not use it, most of the older youngsters had departed, leaving 16 to 20 children in the pool. An 11-year-old cousin testified that she "saw him held up his hand going down and I didn't pay it no attention because I thought he was playing." However, her testimony regarding the time frame of this activity differs from that of other witnesses. It is clear that the guard, realizing he could not see the victim, immediately sent a diver down to search the bottom for him.
The rescue unit arrived in a matter of minutes and found the lifeguard employing cardiovascular techniques on the victim. Both the guard and the rescue team verified that the victim had a weak pulse at that time. Because of this the cardiac phase was temporarily discontinued, and mouth to mouth pulmonary resuscitation was used. Cardiac massage was recommenced on the trip, but the victim was dead on arrival at the hospital. A mortician examining the body testified that there was "a lot of water" in the lungs, and certified death by drowning.
*150 A number of cases have held that the murkiness of water in which a drowning victim has been bathing may be alleged and proved as negligence providing there is a relationship between the condition of the water and the injury to the victim, although if the evidence shows that the death would have occurred in any event the condition, although resulting from negligence, is not actionable as a concurrent proximate cause. See Anno., 86 ALR3d § 6, pp. 1021, 1056 et seq. In open the pool to the public when visibility was 2-1/2 to 3 feet was negligent since this condition might interfere with the duty of their lifeguards and thus be a proximate cause of the drowning. The same result was reached in Mock v. Natchez Garden Club, 230 Miss. 377 (92 S2d 562) (1957) where the water was so cloudy that one could not see well at the deep end of the pool. The same result was reached in Horne, supra, where the witness stated that she could not see the bottom where the body was lying, in a pool with a maximum depth of 8 feet. As stated in Bartley v. Childers, 433 S.W.2d 130 (Ky., 1968) it is as much the function of a lifeguard to rescue bathers in trouble and to revive those in a drowning condition as it is to keep bathers from getting into a drowning condition.
Allegations charging negligence on the part of the defendant or contributory negligence on the part of the drowning victim are for jury decision and will not generally be resolved by the court as a matter of law. Knowles v. LaRue, 102 Ga. App. 350 (116 SE2d 248) (1960). Here it is obvious that the lifeguard, who missed the victim from the place he had last seen him below the lifeguard's seat, acted promptly, sent someone down to search for the body, and brought up the decedent while his pulse was still beating. If the water had been clear the operation might well have been successful as the guard or another person would have been likely to discover him sooner in water less than chin high.
We have already stated that there is a conflict in the evidence to some extent as to the location of the lifeguard at the time the victim went under, and we must of course construe such conflicts in favor of the party opposing the motion, since "the words `no conflict' are so sweeping and full of meaning as to withdraw the permission [of Code § 110-104] if there be even the slightest conflict in the testimony." Davis v. Kirkland, 1 Ga. App. 5, 10 (58 S.E. 209) (1907). Thirdly, there is some testimony to the effect that administering cardiac massage if the victim's pulse is palpable may have deleterious consequences on the heart. This may be considered in view of the fact that the plaintiff's son was alive that is, with a natural pulse at the time he was placed in the rescue unit and dead at the time it reached the hospital.
*151 Although the evidence as a whole is ample to sustain a verdict in favor of the defendant, it cannot be said that such a verdict was demanded. It was error to direct a verdict in favor of the defendants NAACP and Shivers.
No negligence appears, however, as to Charlie Mosley or Clifford Mosley. As to these defendants the direction of the verdict was proper.
Judgment reversed in part and affirmed in part. Pope, J., concurs. Sognier, J., concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2764940/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Taj Al Rajaa Company ) ASBCA No. 58766
)
Under Contract No. W91GET-08-M-0262 )
APPEARANCE FOR THE APPELLANT: Mr. Baha'a Lafta Hassan
Owner
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Tyler L. Davidson, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE JAMES ON
RESPONDENT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE
Appellant filed this appeal on 10 July 2013. After the pleadings were filed, the
Board's 17 October 2013 Order directed the parties to advise the Board within 30 days
how they wished to proceed to adjudicate this appeal. 1 On 27 October 2013 appellant
elected a Rule 11 submission, and on 18 November 2013 the government elected an
oral hearing.
By Order dated 22 November 2013, the Board advised appellant that the Board
would hold a hearing since one of the parties (the government) had requested one and
appellant could still submit its appeal on the written record, or it could withdraw its
election to submit the appeal on the written record and attend the hearing. The Board
advised appellant that the Board was amenable to considering holding the hearing
overseas or by electronic means. The parties were given until 13 December 2013 to
change their responses to the Board's 17 October Order. On 13 December 2013, the
government advised that it did not desire to change its election. Appellant did not
respond to the Order.
By Order dated 20 December 2013, the parties were ordered to propose hearing
dates and a location and a schedule for discovery. By email dated 4 January 2014,
appellant repeated its desire to submit the appeal on the record and objected to the
government's request for a hearing. By Order dated 8 January 2014, the Board
referred appellant to the Board's 22 November 2013 Order. By email dated
1
All communications with appellant are by email due to the lack of a functioning mail
system in Baghdad, Iraq.
17 January 2014, the government proposed hearing dates and a discovery schedule
without input from appellant because counsel had not received a response from
appellant regarding his inquiries.
On 28 January 2014 the assigned administrative judge unsuccessfully attempted
to arrange a conference call with the parties, but appellant could not be contacted. On
24 February 2014 the Board issued a provisional schedule which ordered the parties to
complete discovery by 28 March 2014 or to request an extension of that deadline by
14 March 2014.
On 28 February 2014 the government notified appellant of the deposition of its
"corporate representative" and of Mr. Baha'a Lafta Hassan on 14 March 2014 at the
Army office at Fort Belvoir, afforded appellant the opportunity to propose an alternate
date and location for the deposition, and sent appellant the "Government's First
Request for Production of Documents" (exs. G-3 to -5).
On 5 March 2014 appellant requested the government to cancel the scheduled
depositions, but did not propose alternate dates or locations. The government's
5 March 2014 reply to appellant stated: "While the Government is certainly willing to
work with you regarding the date, time and location of the depositions, until you
propose alternate dates, time and locations, the Government intends to take the
depositions as stated in the Notice of Deposition .... " (Ex. G-6 at 1-2) To date
appellant has not replied to the foregoing correspondence and has not appeared for any
deposition. The government's 14 March 2014 letter to the Board requested an
extension in the date for completing discovery, and on 18 March 2014 proposed an
updated schedule of litigation action dates.
The Board's 19 March 2014 Revised Provisional Schedule ordered the parties
to complete discovery by 23 May 2014 or by 25 April 2014 to show good cause for an
extension of the 23 May 2014 date. Respondent's 19 March 2014 letter to appellant
stated the government's intention to take the depositions and noted appellant's failure
to produce documents. Appellant did not request by 25 April 2014 an extension of the
date to conclude discovery.
The government moved to compel discovery on 15 April 2014, sending the
motion to appellant's email address. The Board's 28 April 2014 letter ordered
appellant to reply to that motion by 9 May 2014. The Board's 22 May 2014 letter to
appellant stated that its reply to our 28 April 2014 Order was overdue and that if
appellant did not submit a reply to the motion by 27 May 2014, it would risk a Board
decision on the government's motion alone. Appellant did not respond to either the
28 April or the 22 May 2014 Board Order.
2
The Board's 11June2014 Order granted respondent's motion, directed the
parties "promptly to resume depositions," ordered appellant to produce the documents
specified by the government and stated: "Appellant appears to believe that because it
has elected a Board Rule 11 record only procedure, it has no obligation to present
company representatives for deposition and to produc[ e] company documents for
government discovery. Appellant is mistaken. It has such obligations." The 11 June
2014 Order warned appellant that "[ t]ailure to comply with Board orders may result in
the imposition of sanctions under Board Rule 3 5," including dismissal of the appeal.
On 11 June 2014 the government reminded appellant of the shipping address
for documents produced and asked about appellant's preferred method and availability
for depositions (ex. G-8). To date appellant has not responded to the government's
discovery requests.
On 16 July 2014 respondent moved to dismiss this appeal for appellant's failure
to prosecute under Board Rule 3 1 (renumbered Rule 17 on 21 July 2014 ), and sent a
copy of the motion to appellant. The Board's 29 July 2014 letter ordered appellant to
respond to the government motion by 28 August 2014. Appellant has not replied to
the government's motion to dismiss.
The Board's 16 October 2014 letter ordered appellant within 21 days from the
date of such order to show cause why this appeal should not be dismissed, and
informed appellant that if it did not comply by such date, the Board might dismiss the
appeal with prejudice under Board Rule 17 (formerly Rule 31) for failure to prosecute
without further notice to the parties. Appellant's reply was due 6 November 2014. To
date no response has been received by the Board.
In summary, appellant has not communicated with the Army or with the Board
since 5 March 2014. Since 20 December 2013 appellant has failed to reply to the
government's discovery inquiries and has not responded to six Board Orders.
As revised on 21 July 2014, Board Rule 17 provides in pertinent part:
Whenever the record discloses the failure of either
party to file documents required by these Rules, respond to
notices or correspondence from the Board, comply with
orders of the Board, or otherwise indicates an intention not
to continue the prosecution or defense of an appeal, the
Board may, in the case of a default by the appellant, issue
an order to show cause why the appeal should not be
dismissed with prejudice for failure to prosecute .... If
good cause is not shown, the Board may take appropriate
action.
3
Accordingly, we grant respondent's motion and dismiss this appeal with
prejudice under Board Rule 17 for failure to prosecute.
Dated: 8 December 2014
I concur I concur
~~~~ RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the
Armed Services Board of Contract Appeals in ASBCA No. 58766, Appeal of Taj Al
Rajaa Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
4 | 01-03-2023 | 12-29-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1441070/ | 938 A.2d 983 (2007)
Melvin LINDSEY, Pro Se Petitioner,
v.
COURT OF COMMON PLEAS OF PHILADELPHIA, Respondent.
No. 164 EM 2007.
Supreme Court of Pennsylvania.
December 13, 2007.
ORDER
PER CURIAM.
AND NOW, this 13th day of December, 2007, the Application for Leave to File Original Process is granted and the Petition for Writ of Mandamus and/or Extraordinary Relief is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264952/ | 6 F.Supp. 393 (1934)
SHIMADZU et al.
v.
ELECTRIC STORAGE BATTERY CO.
No. 7727.
District Court, E. D. Pennsylvania.
February 5, 1934.
Joseph W. Henderson, of Philadelphia, Pa., James T. Newton, of Washington, D. C., E. B. Whitcomb, of Toledo, Ohio, and Geo. Whitefield Betts, Jr., of New York City, for plaintiffs.
Augustus B. Stoughton and Edward S. W. Farnum, Jr., both of Philadelphia, Pa., A. F. Kwis, of Cleveland, Ohio, and Hugh Morris, of Wilmington, Del., for defendant.
KIRKPATRICK, District Judge.
In this patent infringement suit plaintiff has moved for an inspection of the defendant's processes, methods, and products and of its apparatus in actual operation.
Although infrequently exercised, there is very little doubt or difficulty about the power *394 of a court of equity to order the disclosure by physical inspection of evidence in the defendant's possession. The following well-settled principles govern:
First. The power exists, although the plaintiff has no absolute right to invoke it.
Second. It should not be exercised unless the plaintiff makes a showing that the defendant is violating his right, supported by more than his own suspicion or belief. Obviously, this does not mean that he must decisively establish infringement. If he could do that, there would be no need for inspection and he would defeat his own motion. A prima facie case will suffice. How much less than that will do it need not here be considered.
Third. It should not be exercised where the evidence can be satisfactorily obtained elsewhere. It necessarily involves an invasion of the defendant's business privacy and should be avoided where reasonably possible.
Fourth. If exercised, it should be safeguarded so that information or secrets unconnected with the subject-matter of the suit will not be disclosed to competitors.
For the above principles reference may be had to Rowell v. William Koehl Company (D. C.) 194 F. 446; Colgate v. Compagnie Francaise (C. C.) 23 F. 82; Diamond Match Company v. Oshkosh Match Works (C. C.) 63 F. 984; Osram Lamp Works, Ltd. v. British Union Lamp Works, Ltd. (1914) 31 R. P. C. 309; and Germ Milling Company, Ltd. v. Robinson, 1 T. L. R. 38, 1 R. P. C. 217 (1884).
To them may be added a general limitation which some courts have seen fit to apply, namely, that the case must be an exceptional or extraordinary one. This amounts to little more than a general caution.
One of the patents here involved is for a process of manufacturing powder, composed of lead suboxide mixed with powder of metallic lead, which forms the basis for the paste with which the plates or grids of electric storage batteries are coated.
The plaintiff offers, as a prima facie case of infringement, the sworn testimony of one Hall, the defendant's engineer in charge of these operations since 1921 given in an interference in the Patent Office in 1928 and 1929. The situation is a peculiar one. At that time Hall was endeavoring to establish the fact that he had been producing the powder in question at the defendant's plant since 1921 by the process claimed in the plaintiff's patent (the plaintiff's application date being in 1923). His testimony was positive and unequivocal to that effect. The law examiner accepted it. The Patent Office tribunals rejected it; that is, they held that it did not establish Hall's contention. The Court of Custom and Patent Appeals affirmed the decision of the Board of Appeals of the Patent Office substantially holding that Hall was in error when he said that he produced the product of the patent in the defendant's plant, reasoning from this that he could not have been using the process, and further holding that even if he had been, he was not sufficiently corroborated as to conception and reduction to practice prior to the Shimadzu filing date.
In the interference, the present plaintiff Shimadzu contended that Hall was not making the product of the patent. But he had not been permitted to see it or observe the process only attempted to produce it by what he understood to be a similar machine. There was never any question that Hall was producing a fine lead oxide powder.
I think it is a prima facie case. The fact that the Patent Office tribunals rejected this testimony, or at least interpreted it as not meaning what Hall claimed for it, is not binding upon me, particularly since Hall's affidavit in opposition to this motion contains no suggestion that he does not still stand by it. That issue is carefully avoided. To the plain questions, "Do you use the process of the Shimadzu patent and is your product the product of that patent?" which naturally arise in the mind of the court, the answer of the affidavit is that in 1924 he was of the opinion that some of the product he had made corresponded with Shimadzu's sample, which he then considered his invention. And then, he says, it subsequently developed that the scope of his invention "was somewhat curtailed." The one thing he does say with positiveness is that the defendant is now using the same process and making the same product about which he testified in the interference, and he nowhere says that it is not the product and process of the Shimadzu patent.
The necessity for an inspection rather than resorting to the ordinary means of obtaining evidence lies largely in the nature of the product. The patent discloses, and there is no real dispute, that the powder is chemically highly reactive an extremely fine powder which is quickly affected by air, moisture, and heat. It is chemically changed by the addition of other substances to make a paste of it, and when it comes upon the market in the plates of storage batteries it is still further metamorphosed. Even if it were obtainable *395 in powder form, which it is not, it is likely to alter so rapidly under ordinary atmospheric conditions that, unless taken direct from the machine and preserved in some way, it will defy accurate analysis. The defendant has no way, unless permitted to so take samples, of finding out with the requisite exactness what the constituents of the plaintiff's product are. Obviously these facts, together with the fact that the process at every step requires careful conditioning, supply the necessary element for the exercise of the court's power.
I therefore conclude that an inspection should be allowed. This opinion is not to be taken as an order. It is suggested that, before any order is entered, the parties confer with me as to the terms upon which it should be made, and as to proper and reasonable safeguards. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264673/ | 879 F.Supp. 715 (1995)
Robert F. FRAPPIER, Acting as Substitute Trustee, Plaintiff,
v.
TEXAS COMMERCE BANK, N.A., and Internal Revenue Service, Defendants.
Civ. A. No. H-94-2405.
United States District Court, S.D. Texas, Houston Division.
March 22, 1995.
*716 Michael W. Schneider, Barrett Burke Wilson Castle & Frappier, Dallas, TX, for Robert Frappier.
Christopher M. Cammack, Maureen Anne Wharton, Texas Commerce Bank Nat'l Ass'n, Houston, TX, for Texas Commerce Bank, N.A.
Gregory S. Garland, Dept. of Justice, Tax Div., Dallas, TX, for the U.S.
MEMORANDUM AND ORDER GRANTING THE UNITED STATES' MOTION FOR SUMMARY JUDGMENT, DENYING TEXAS COMMERCE BANK'S MOTION FOR SUMMARY JUDGMENT, AND DENYING ROBERT FRAPPIER'S MOTION FOR SUMMARY JUDGMENT
STACY, United States Magistrate Judge.
Before the Magistrate is the United States' Motion for Summary Judgment (Document No. 12), Robert Frappier's Motion for Summary Judgment (Document No. 16), and Texas Commerce Bank's Motion for Summary Judgment (Document No. 17). On December 13, 1994, the parties consented to trial before United States Magistrate Judge Frances H. Stacy. Upon such consent, the District Judge referred the case for all proceedings to the Magistrate Judge.
After reviewing the motions, the submissions of the parties and the applicable law, the Magistrate ORDERS, for the reasons set forth below, that the United States' Motion for Summary Judgment (Document No. 12) is GRANTED, Robert Frappier's Motion for Summary Judgment (Document No. 16) is DENIED, and Texas Commerce Bank's Motion for Summary Judgment (Document No. 17) is DENIED.
I. Background
This case involves the parties' respective entitlement to excess proceeds following a foreclosure sale. On October 5, 1993, Plaintiff Robert F. Frappier ("Frappier"), acting as trustee, conducted a foreclosure sale of real property owned by Arthur and Frances Allen and located at 3909 De Leon Street, Houston, Texas 77087. The property was bought at foreclosure for $15,000. This was $6,361.67 more than the amount which remained due and owing on the Allens' mortgage held by Mellon Mortgage Company. It is this $6,361.67, which is at issue in this case.
On June 17, 1994, Frappier instituted an interpleader action in County Court at Law No. 4 in Harris County, Texas. Frappier named the United States, a tax lienholder, and Texas Commerce Bank ("TCB"), a judgment lienholder, as defendants. Both the United States and TCB claim entitlement to the $6,361.67 in excess proceeds. Additionally, Frappier seeks reimbursement for attorneys fees and expenses associated with bringing this interpleader action. On July 15, 1994, the United States removed the case to this Court, claiming jurisdiction under 28 U.S.C. §§ 1331, 2410.
As the $6,361.67 in excess proceeds is not sufficient to satisfy all the claims, the priority of the liens at issue in this case must be determined. Additionally, it must be determined whether Frappier is entitled to recover his attorneys fees and expenses.
II. The Liens
On November 11, 1986, a judgment was entered against the Allens and in favor of TCB in the amount of $2,475.44, plus 10% annual interest on that amount until paid. TCB recorded this judgment as an "abstract of judgment" in the deed records of Harris County, Texas on December 22, 1986. As of July 31, 1994, the Allens owed TCB $5,009.44, representing the $2,475.44 judgment, plus accrued interest.
On January 9, 1989, the United States Internal Revenue Service assessed additional income taxes against Arthur and Frances Allen in the amount of $10,112.21 for the taxable years of 1985, 1986, and 1987. A *717 notice of a federal tax lien in this amount was filed in the deed records of Harris County, Texas on July 27, 1989.
III. Priority of Liens
TCB argues that its lien should take priority over the United States' and it should receive its share of the $6,361.67 in excess proceeds first because it recorded its lien first. The United States, on the other hand, argues that TCB's lien did not attach to the Allen's real property, which was the subject of the foreclosure, and which generated the excess proceeds that are at issue in this case. The United States refers the Court to Texas law which specifically disallows liens, other than purchase money liens, tax liens, mechanic's and materialmen's liens, from attaching to real property that is used as a homestead. According to the United States, because the Allen's property at 3909 De Leon Street, Houston, Texas 77087 was the Allens' homestead and because TCB's lien was not a purchase money, tax, or mechanic's and materialmen's lien, TCB's recording of its lien was ineffective. Only when the property was sold and the Allens lost their homestead interest did TCB's lien become effective against any excess proceeds realized from the sale of the property. Because TCB's lien became effective after the Internal Revenue Service filed its notice of federal tax lien, the United States contends that its lien has priority.
The Texas Constitution contains the prohibition on liens against homestead property, which are not purchase money or mechanic's and materialmen's liens:
The homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work or material used in constructing improvements thereon.... No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the owner alone, or together with his or her spouse, in case the owner is married.
TEX.CONST. Art. 16 § 50. This provision has been interpreted as applying to judgment liens like the one at issue in this case:
It is beyond argument that in Texas general creditors who have reduced their debts to judgment do not thereby obtain a judgment lien against property claimed, occupied and used by their debtor as a homestead.
Englander Co. v. Kennedy, 424 S.W.2d 305, 308 (Tex.Civ.App. Dallas 1968, writ ref'd n.r.e.); See also Hoffman v. Love, 494 S.W.2d 591, 593-4 (Tex.Civ.App. Dallas 1973, writ ref'd n.r.e.) ("[A] judgment, though duly abstracted, never fixes a lien on the homestead so long as it remains homestead"). While a judgment lien does not attach to property which is used as a homestead, once the property ceases to be used as homestead, the judgment lien attaches to any proceeds from the sale of the homestead. Id. Such attachment, however, does not become effective until six months after the sale of the homestead property. See TEX.PROPERTY CODE § 41.001(c) ("The homestead claimant's proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months after the date of sale").
In contrast, a federal tax lien is enforceable against property which is being used as a homestead. 26 U.S.C. § 6321;[1]Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 436 (1949) (Federal tax liens extend to Texas homesteads); United States v. Rogers, 461 U.S. 677, 691-693, 697, 103 S.Ct. 2132, 2141-42, 2144, 76 L.Ed.2d 236 (1982). Such a lien becomes enforceable *718 from the moment the notice of the lien is properly filed. 26 U.S.C. § 6323.[2]
In the instant case, TCB's judgment lien was obtained in 1986, while the Allen's property was a homestead.[3] In applying Texas law, it is evident that TCB's judgment lien was ineffective from December 22, 1986 through October 5, 1993, the date of the foreclosure sale, and six months thereafter, until April 5, 1994. Given the unenforceable nature of TCB's judgment lien for that period of time, and the enforceable nature of the IRS tax lien, the United States' lien must be given priority over TCB's lien. See United States v. McDermott, ___ U.S. ___, 113 S.Ct. 1526, 123 L.Ed.2d 128 (1993) (A federal tax lien takes precedence over an earlier filed, unperfected and unenforceable state law lien).
IV. Frappier's claim to attorney's fees and expenses
The second issue presented by this case is whether Plaintiff Frappier is entitled to recover attorney's fees and expenses associated with this interpleader action. Frappier claims he is entitled to recover $1,500 from the excess proceeds as attorney's fees and expenses. The United States, on the other hand, claims Frappier is not entitled to attorney's fees and expenses because its federal tax lien exhausts the excess proceeds. The United States relies on Spinks v. Jones, 499 F.2d 339 (5th Cir.1974), for its argument that Frappier cannot recover his attorney's fees and expenses.
While Frappier tries to distinguish Spinks and argues that equity principles compel an award of attorneys fees, neither of these arguments is supported by case law. In Spinks, the Fifth Circuit Court of Appeals unequivocally stated:
The stakeholder of an interpleader fund is not entitled to attorney's fees to the extent that they are payable out of a part of the fund impressed with a federal tax lien.... The portion of an interpleaded fund that is subject to a Government tax lien cannot be reduced by an award of attorney's fees to the stakeholder for bringing the interpleader action.
Spinks, 499 F.2d at 340. Despite Frappier's arguments that Spinks is distinguishable from the instant case because the party in interpleader in Spinks was the tax debtor, there is no language in Spinks that would limit its application in the way Frappier requests. Moreover, as the holding in Spinks regarding attorney's fees has been followed in other jurisdictions in cases involving interpleader parties who were not tax debtors,[4] the Magistrate does not doubt the breadth of Spinks and the applicability of its holding to the facts of this case. Finally, because Frappier has come forth with no case law to contradict Spinks and no case law to support his argument that equity principles compel an award of attorney's fees, the principle in Spinks must be applied, and Frappier cannot recover attorney's fees and expenses because the total amount of the interpleaded funds is exhausted by the United States' tax lien.
V. Conclusion
Based on the foregoing and the Court's determination that the United States' lien is entitled to priority and Frappier is not entitled to attorney's fees, it is
ORDERED that the United States' Motion for Summary Judgment (Document No. 12) is GRANTED. The United States shall recover the excess proceeds from the foreclosure sale of the property located at 3909 *719 De Leon Street, Houston, Texas 77087, $6,361.67 plus any accrued interest to date, in satisfaction of the United States' tax lien. It is further
ORDERED that Robert Frappier's Motion for Summary Judgment (Document No. 16) and Texas Commerce Bank's Motion for Summary Judgment (Document No. 17) are both DENIED. Neither Texas Commerce Bank nor Robert Frappier are entitled to any amount from the interpleaded funds. It is further
ORDERED that the parties to this suit shall, within ten days of their receipt of this Memorandum and Order, submit a proposed final judgment, which provides for the disbursement of the interpleaded funds.
NOTES
[1] 26 U.S.C. § 6321 provides:
If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.
[2] 26 U.S.C. § 6323 provides:
Purchasers, holders of security interests, mechanic's lienors, and judgment lien creditors. The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary.
[3] The United States has provided the Court with copies of the homestead exemption forms filed in Harris County, Texas by Arthur and Frances Allen, wherein they claimed the property at 3909 De Leon Street, Houston, Texas 77087 as their homestead from 1984 to 1993.
[4] See Cable Atlanta, Inc. v. Project, Inc., 749 F.2d 626, 627 (11th Cir.1984); Abex Corp. v. Ski's Enterprises, Inc., 748 F.2d 513, 516 (9th Cir. 1984); Chevron U.S.A. v. May Oilfield Services, Inc., 739 F.2d 498 (10th Cir.1984); Millers Mutual Insurance Association of Illinois v. Wassall, 738 F.2d 302, 303 (8th Cir.1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264678/ | 14 Cal.App.4th 1058 (1993)
18 Cal. Rptr.2d 106
BETTY CHRONAKIS, Plaintiff and Appellant,
v.
DAVID E. WINDSOR, Defendant and Respondent.
Docket No. B059892.
Court of Appeals of California, Second District, Division Seven.
March 31, 1993.
*1061 COUNSEL
Daniel R. Sheahan and Charlotte E. Costan for Plaintiff and Appellant.
Collins, Collins, Muir & Traver, John J. Collins and Karen B. Sharp for Defendant and Respondent.
OPINION
JOHNSON, J.
The underlying litigation in this case arises from an automobile accident in which plaintiff sustained personal injuries. The matter was tried to a jury which assessed plaintiff's comparative fault at 27 percent and awarded her $13,000 in economic damages and $25,000 in noneconomic damages. Plaintiff unsuccessfully sought a new trial based primarily on alleged juror misconduct. We agree the award of economic damages in this case was an improper quotient verdict and reverse that portion of the judgment. The award of noneconomic damages, on the other hand, appears unaffected by juror misconduct. We consequently affirm the verdict of noneconomic damages as well as the remainder of the judgment.
FACTS AND PROCEEDINGS BELOW
Plaintiff, Betty Chronakis, had worked all her life in restaurants and bars or in various sales positions. When plaintiff and her husband relocated to Arizona, they purchased and operated a restaurant/bar/motel/gas station/trailer park enterprise on a major highway. They sold the business in the early 1980's after plaintiff's husband became ill and the main highway closed. Thereafter, plaintiff retired to her home in Kingman, Arizona.
*1062 In 1988, plaintiff came to California to care for her ailing mother. After her mother passed away, plaintiff had nothing to occupy herself and needed money. Plaintiff was living with her brother and sister-in-law in North Hollywood and offered to work as a waitress at their restaurant. Initially, plaintiff only worked as a relief waitress, filling in for other waitresses who had called in sick or who were absent for other reasons. Eventually, plaintiff's average work schedule averaged four to five days, or about thirty-four hours per week. In 1989, plaintiff earned approximately $12,000. Based on those earnings, and an assumption plaintiff would work three more years, or until she turned age seventy-five, plaintiff's economic expert testified her total loss of earnings would be $36,000.
Plaintiff testified that before the accident she intended to return home to Arizona and seek employment two to three days a week as a hostess at some casino in Laughlin, Nevada. She stated she would not seek work as a waitress and did not think she was strong enough to carry the heavy change equipment required of a "change girl" in the casinos.
At 7:30 a.m. on January 5, 1990, plaintiff's sister-in-law, Ms. Bolwell, drove plaintiff to work at the restaurant in her Honda. To avoid rush hour traffic, she drove on residential streets. Plaintiff sat in the car with her body turned slightly to the right as she observed landscaping details in the residential neighborhood. Plaintiff did not wear a seat belt and Ms. Bolwell did not request plaintiff wear one.
From around the bend a Chevrolet Blazer 4 x 4 approached them driving down the center of the road. The drivers of the vehicles saw each other only seconds before impact. The Honda and Blazer crashed nearly head on. The Honda spun around 180 degrees and came to rest on or near the opposite curb.
The driver of the Blazer, defendant David E. Windsor, was uninjured. The two women were transported to a local hospital. Ms. Bolwell had suffered no injuries and was released from the hospital later that morning. Plaintiff, however, sustained a large laceration to her forehead which extended across her right eyebrow and into her right eyelid. Plaintiff's laceration was treated and she was released from the hospital three days later.
Several months after the accident, plaintiff had corrective plastic surgery to reduce the prominence of the forehead and eyebrow scars. Although plaintiff's appearance improved, both sides' medical experts agreed plaintiff continued to suffer from facial numbness, tingling and pain from damaged or severed nerves due to the laceration sustained in the accident. The medical *1063 experts also agreed plaintiff probably suffered a concussion when her head made contact with the interior of the car during the accident. Plaintiff's doctor testified it was his belief lingering damage to the brain continued to cause plaintiff's impaired balance and coordination problems. Neither plaintiff nor her medical experts testified to any expenses for medical treatment incurred as a result of the accident.
The defendant's medical expert testified any difficulty plaintiff had in walking was due to normal deterioration caused by the aging process complicated by plaintiff's long-standing problems with diabetes, arthritis and a heart condition.
According to plaintiff's accident reconstruction expert, plaintiff likely hit her forehead on the dashboard. He noted the windshield had not been shattered and the doctors found no glass embedded in her skin. It was his opinion plaintiff probably would have struck something inside the vehicle and injured herself even if she had worn a seat belt. The defendant's accident reconstruction expert, on the other hand, testified it was his opinion plaintiff struck her forehead on the rear view mirror. Defendant's expert further testified it was his opinion plaintiff would not have suffered any injuries had she been wearing a seat belt. Both experts agreed each of the 2 cars was travelling at between 15 and 20 miles per hour.
By special verdicts the jury assessed 56 percent fault for the accident to defendant, 27 percent to plaintiff and 17 percent to plaintiff's sister-in-law, Ms. Bolwell. The jury unanimously awarded plaintiff economic damages of $13,000, and by a 10-to-2 vote, awarded her noneconomic damages of $25,000.
Plaintiff moved for a new trial, alleging the damage award was an impermissible quotient verdict, the damages awarded were inadequate as a matter of law and the insufficiency of the evidence to warrant a finding either plaintiff or her driver was negligent.
Because the trial judge, Lillian M. Stevens, was unavailable to hear the motion and would remain unavailable beyond the 60-day time limit for hearing such motions (Code Civ. Proc., § 660), Judge Thomas C. Murphy was assigned to hear plaintiff's motion for new trial. Unfamiliar with the facts of the case, Judge Murphy summarily denied plaintiff's motion for new trial and invited appellate review.
*1064 DISCUSSION
I. The Impermissible Quotient Verdict on Economic Damages Must Be Reversed for New Trial.
(1a) Plaintiff contends it was an abuse of discretion to deny her new trial motion because the verdicts were arrived at by chance. Code of Civil Procedure section 657, provides "The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] ... [¶]
"2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors."
(2) Chance is the "hazard, risk, or the result or issue of uncertain and unknown conditions or forces." (Dixon v. Pluns (1893) 98 Cal. 384, 387 [33 P. 268].) Verdicts reached by tossing a coin, drawing lots, or any other form of gambling are examples of improper chance verdicts. (7 Witkin Cal. Procedure (3d ed. 1985) Trial, § 361, p. 362.) (3a) "The more sophisticated device of the quotient verdict is equally improper: The jurors agree to be bound by an average of their views; each writes the amount he favors on a slip of paper; the sums are added and divided by 12, and the resulting `quotient' pursuant to the prior agreement, is accepted as the verdict without further deliberation or consideration of its fairness." (Ibid., italics in original.)
This latter method of fixing a verdict was denounced by our Supreme Court in Dixon v. Pluns, supra. "In the present case each juror agreed that a definite amount should be the verdict of the jury, at a time when he had no knowledge whatever as to what the amount should be, for it had not yet been computed. No person even knew the figures upon which the computation would be made. If the estimate of each juror is before the eyes of the others when the agreement is made, then no element of chance will be found in the result, for it would be a mere matter of mathematical computation; but without knowledge of these estimates, the character of the verdict will be as entirely unknown to the jurors as though the whole matter were decided by the casting of a die, or the tossing of a coin. In the casting of a die, or the tossing of a coin, justice has an equal chance with injustice, but under the *1065 system here considered, one unscrupulous and cunning juror always has the power to defeat justice by increasing or decreasing the amount of the verdict in proportion as he places his estimate at an unconscionably high or low figure." (Dixon v. Pluns, supra, 98 Cal. at p. 387 [reversed for new trial due to quotient verdict]; see also, Ham v. County of Los Angeles (1920) 46 Cal. App. 148, 153 [189 P. 462] [new trial order affirmed due to quotient verdict]; Buhl v. Wood Truck Lines (1944) 62 Cal. App.2d 542, 545 [144 P.2d 847] [same].)
(1b) In support of her motion for new trial plaintiff produced juror affidavits tending to demonstrate the jurors agreed in advance to be bound by the average of their respective views of a proper award of damages. One juror affidavit stated: "[d]uring the jury deliberations, it was agreed that each juror would write down an amount for the plaintiff, and the average of these twelve figures would be the final award to be submitted to the court. It was discussed that each juror was able to provide his or her individual award amount, however, the averaged award was final. This form of computing the award was agreed upon before the individual amounts were written down." This juror affidavit is prima facie evidence the verdict on plaintiff's economic damages which was the only damage verdict agreed to by all 12 of the jurors was a quotient verdict and that the jurors were induced to assent to the verdict by resort to chance.
Three other juror affidavits provide further proof the verdict on economic damages was an impermissible quotient verdict. A second juror affidavit stated: "[d]uring deliberations there was such a wide discrepancy between the jurors['] feeling so it was discussed and decided that we would all write down a figure as to what we felt would be a proper award for Mrs. Chronakis.... There was [sic] figures between the juror[s] varying between $1.00 for Mrs. Chronakis to $100,000. Since it was so wide we could not reach a figure, we decided to each write down a figure, add the total and divide by twelve. This is how the award was determined...."
A third juror affidavit stated: "[i]n the deliberations the foreman suggested that the final damage amount be obtained by each juror writing down an amount for plaintiff and then the total would be divided by twelve. We agreed at this before individual damage amounts were set.... The averaged awarded amount was to be the final amount given to plaintiff."
A fourth juror affidavit stated: "[t]o the best of my recollection it was jury foreman ... who suggested the manner of figuring the amount to be awarded to Mrs. Chronakis. [¶] Each juror was asked to state the amount of money he/she thought should be awarded. These amounts were then added *1066 up and the result divided by twelve (12). Also, I recall that at least six (6) of the jurors stated Mrs. Chronakis only [sic] be awarded $1.00 to $1.50 only."
Based on these juror affidavits it is apparent the jurors agreed in advance to be bound by the average of their views without further deliberation. As such, the verdict was an improper quotient verdict and this portion of the judgment must be reversed for new trial. (Code Civ. Proc., § 657, subd. 2.)
Defendant filed no counteraffidavits in opposition to plaintiff's motion for new trial. Thus the acts alleged in plaintiff's affidavits are deemed admitted. (Tapia v. Barker (1984) 160 Cal. App.3d 761, 766 [206 Cal. Rptr. 803].) He nevertheless suggests this is not an illegal quotient verdict because the affidavits indicate the averaged amount may have been rounded off which in turn indicates there may have been further deliberation before submitting the economic damage award of $13,000 to the court. (3b) "It is true, ... there is no impropriety in the jurors making an average of their individual estimates as to the amount of damages for the purpose of arriving at a basis for discussion and consideration, nor in adopting such average if it is subsequently agreed to by the jurors; but to agree beforehand to adopt such average and abide by the agreement, without further discussion or deliberation, is fatal to the verdict." (Ham v. County of Los Angeles, supra, 46 Cal. App. at pp. 153-154.)
Thus, evidence an average figure was later rounded either up or down has been held definitive proof the jurors were not bound by their agreement to adopt the average figure as their final verdict. Consequently, such verdicts are not considered improper because they indicate further consideration and deliberation by the jurors in agreeing on the rounded-off figure. (See, e.g., Will v. Southern Pacific Co. (1941) 18 Cal.2d 468, 477 [116 P.2d 44] [not improper quotient verdict because counteraffidavits proved jurors later voted on rounded off average figure]; Monroe v. Lashus (1959) 170 Cal. App.2d 1, 6 [338 P.2d 13] [not improper quotient verdict because counteraffidavits asserted jurors did not agree to be bound by average figure and evidence of rounding off appeared on all affidavits]; Glass v. Gulf Oil Corp. (1970) 12 Cal. App.3d 412, 435 [96 Cal. Rptr. 902] [evidence averaged figure rounded off before jurors arrived at final figure appeared on face of affidavits].)
(1c) Defendant contends rounding off must have occurred in this case because the juror affidavits indicated several of the jurors were in favor of returning a damage award of only $1 or $1.50. Defendant therefore contends, because the final damage award of $13,000 in economic damages has no odd dollars or cents, the jurors must have subsequently agreed to round off the figure arrived at by averaging. This argument, however, presumes *1067 some of the jurors actually voted for $1 or $1.50 verdicts when the crucial vote was taken. However, there is no evidence to support this argument. Two of the juror affidavits describe how some of the jurors discussed the propriety of only a nominal award. These discussions, however, took place before the agreement to be bound by the average of their views. There is no evidence in the record to indicate exactly how the jurors actually voted. Consequently, it is just as likely those jurors who believed any damage award too much voted to award nothing, which could have produced a quotient of precisely $13,000.
To accept defendant's argument we would need to draw inferences on inferences from those juror affidavits in favor of the verdict. First, we would have to infer some of the jurors actually submitted $1 or $1.50 as their estimate on economic damages. Second, we would have to infer the jurors thereafter agreed to round the average figure off to arrive at the final verdict of $13,000. No case we are aware of has relied on inferences from juror affidavits to find evidence sufficient to rebut prima facie evidence of a quotient verdict. Instead, the cases indicate the only evidence sufficient to rebut prima facie evidence of a quotient verdict is affirmative credible statements in counteraffidavits declaring a verdict was not the result of chance, or affirmative statements or evidence of subsequent consideration and deliberation by the jury, or where evidence of rounding off the average figure is apparent on the face of the affidavits. (See, e.g., Dixon v. Pluns, supra, 98 Cal. 384 [reversed, no counteraffidavits to rebut evidence of quotient verdict]; Ham v. County of Los Angeles, supra, 46 Cal. App. 148 [reversed due to quotient verdict, counteraffidavits not credible]; Buhl v. Wood Truck Lines, supra, 62 Cal. App.2d 542 [same]; Will v. Southern Pacific Co., supra, 18 Cal.2d 468 [credible counteraffidavits demonstrated average figure later rounded off and reconsidered]; Monroe v. Lashus, supra, 170 Cal. App.2d 1 [same]; Glass v. Gulf Oil Corp., supra, 12 Cal. App.3d 412 [same]; McDonnell v. Pescadero & San Mateo Stage Co. (1898) 120 Cal. 476 [52 P. 725] [counteraffidavits demonstrated average figure only basis for discussion]; Bardessono v. Michels (1970) 3 Cal.3d 780 [91 Cal. Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717] [same]; Foley v. Hornung (1917) 35 Cal. App. 304 [169 P. 705] [same]; Unger v. San Francisco-Oakland Rys. (1923) 61 Cal. App. 125 [214 P. 510] [same]; Balkwill v. City of Stockton (1942) 50 Cal. App.2d 661 [123 P.2d 596] [same]; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App.3d 581 [94 Cal. Rptr. 200] [same].) We decline any implied invitation to expand the methods of rebutting evidence of chance verdicts.
(4) Defendant also suggests the verdict is not an improper quotient verdict because each juror affirmed the verdict as his or her own when polled *1068 in open court. We fail to understand how the jurors acknowledging their agreement to be bound by the quotient figure somehow saves an otherwise improper verdict. Claiming the verdict as his or her own in open court is merely carrying out the jurors' prior agreement to be bound by whatever figure represented the average of their views. Defendant cites no authority for this novel proposition and we have found none. Indeed, allowing such after the fact activity to redeem a verdict arrived at by chance would run counter to the very purpose of prohibiting quotient or chance verdicts. (5) As stated in Balkwill v. City of Stockton, supra, 50 Cal. App.2d 661, "[t]he purpose of the statute which prohibits the rendering of a verdict which is the result of chance is to preserve the benefit to litigants of the independent judgment of jurors with respect to either the party who is to prevail or the amount of damages to be awarded. Chance verdicts are destructive of the very foundation upon which the right of trial by jury is based. But the amount which will adequately compensate one for personal injuries is not usually susceptible of mathematical calculation. Reasonable men will differ greatly in that regard. The honest and fair judgment of jurors is all that may be expected in such litigation." (Balkwill v. City of Stockton, supra, 50 Cal. App.2d at p. 672.)
(1d) Because the juror affidavits establish the verdict in this case was an improper quotient verdict, plaintiff is entitled to a new trial on the issue of her economic damages. (Code Civ. Proc., § 657, subd. 2.)
II. The Jurors' Consideration of Plaintiff's Financial Situation Was Not Misconduct Under the Circumstances of This Case.
(6a) Plaintiff contends the jury committed further misconduct when it considered "collateral sources" of income. The same juror affidavits indicated the jurors discussed possible proceeds from the sale of her business in the early 1980's, plaintiff's intention to return to her home in Arizona and the likelihood plaintiff would retire in Arizona and live on her Social Security income. At least some of the jurors believed because of these sources of income and because of plaintiff's advanced age, she had adequate financial security regardless of the jury's verdict.
(7) Evidence Code section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or *1069 concerning the mental processes by which it was determined." Thus, the Legislature sought to distinguish between "proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, ...." (People v. Hutchinson (1969) 71 Cal.2d 342, 349 [78 Cal. Rptr. 196, 455 P.2d 132].) "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent." (Id. at p. 350; see also Krouse v. Graham (1977) 19 Cal.3d 59, 80 [137 Cal. Rptr. 863, 562 P.2d 1022].)
(6b) Applying these principles, we must reject the allegations of misconduct predicated on the jurors' consideration of plaintiff's personal financial situation. First, these matters were not outside the evidence as plaintiff alleges. Plaintiff testified one of the reasons she lived in Kingman, Arizona was because she could not have "survived on her Social Security" anywhere else. Plaintiff also testified to selling the business she and her husband had owned for years in Arizona and about her intention to return to her home there. These facts were part of the evidence in the case, offered, presumably, on the issue of the likelihood of plaintiff carrying out her alleged intention to work two to three days a week when she returned to Arizona. Resolution of that issue, in turn, bore directly on the issue whether it was reasonably certain plaintiff had suffered or would suffer lost earnings as a result of her injuries. We discern nothing improper in jurors discussing evidence actually presented in the case during its deliberations. (Compare, Tapia v. Barker, supra, 160 Cal. App.3d 761, 766 [juror consideration of how either disability, welfare or unemployment should reduce plaintiff's loss of earnings were considerations of collateral sources of income which were outside the evidence and therefore improper].) Thus, the juror affidavits in this case do not raise an inference of improper influence on juror deliberations by the receipt of extrajudicial evidence.
Secondly, plaintiff would have this court delve into the effect the discussions about plaintiff's finances had on the ultimate damage awards made in the case. She contends the juror declarations prove certain jurors were influenced by these discussions and therefore must have voted for low damage awards. This contention essentially asks us to examine the jurors' subjective reasoning processes. This is not acceptable under Evidence Code section 1150. (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal. App.3d 728, 741 [223 Cal. Rptr. 859].)
Thus, while the conduct of jurors discussing plaintiff's financial situation may be scrutinized, the effect of this conduct on subsequent votes may not be. When the latter is excluded, the former standing alone, does not implicate juror misconduct. Nor does the record otherwise demonstrate some *1070 members of the jury were prevented from freely expressing their views an award of $100,000 or so would be an appropriate verdict. (People v. Cox (1991) 53 Cal.3d 618, 695 [280 Cal. Rptr. 692, 809 P.2d 351].)
We conclude reversal of the judgment is not required based on the alleged juror misconduct asserted here.
DISPOSITION
The verdict for plaintiff's economic damages is reversed and remanded for new trial. The verdict for noneconomic damages is affirmed, and the judgment is otherwise affirmed in every other respect. Each party to bear own costs.
Lillie, P.J., and Woods (Fred), J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264683/ | 744 A.2d 1212 (2000)
328 N.J. Super. 103
Yehuda AMIR, Plaintiff-Appellant,
v.
Philip and Violet D'AGOSTINO, Units R25 and 26, Brenda Goldstein, and Ocean Club Condominium Association, Defendants-Respondents, and
Albert Gardner, Chief Officer of the General Partner of MLM Associates, a New Jersey Limited Partnership, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted January 5, 2000.
Decided January 26, 2000.
Valore and Associates, Linwood, for plaintiff-appellant Yehuda Amir (Mark W. Rinkus, Bridgeport, on the brief).
Weiner & Gall, Montvale, for defendant-appellant Albert Gardner (Fredric L. Shenkman, Atlantic City, on the brief).
Hankin, Sandson, Sandman, Bradley & Palladino, for defendants-respondents Philip and Violet D'Agostino (John F. Palladino, Atlantic City, on the joint brief).
Dilworth Paxson, Cherry Hill, for defendant-respondent Ocean Club Condominium Association (Marianne E. Brown, on the joint brief).
Mairone, Biel, Zlotnick & Feinberg, Atlantic City, for defendant-respondent Brenda Goldstein (Norman L. Zlotnick, on the joint brief).
Before Judges STERN, WEFING and STEINBERG.
PER CURIAM.
Plaintiff Yehuda Amir is the owner of two of the twenty-nine commercial units at the Ocean Club Condominium in Atlantic City. He claims "to have an exclusive right to sell certain merchandise" in the condominium complex. Amir appeals from an order entered on June 19, 1998, granting summary judgment in favor of defendants, and declaring "that all covenants contained in the individual unit Deeds to Units R25 and R26 in the Ocean Club Condominium which purport to restrict, prohibit or in any other way limit the owners, successors and/or assigns of said units right to conduct the business of its choice therein, be and are hereby stricken[.]" The order further "strikes" "any covenants in any of the individual unit deeds in any of the commercial units of the Ocean Club Condominiums which purport to restrict, prohibit or in any other way limit the owners, successors and/or assigns of Unit R-25 and R-26 from conducting the business of their choice in said units."
On his appeal, plaintiff Amir contends that the trial court erred in granting summary judgment because "restrictions and covenants contained in individual condominium units' deeds are enforceable," even if "they were not included in the condominium's *1213 master deed," and that the trial judge "erred by concluding" that plaintiff lacked standing to assert his contentions and in granting summary judgment.
Defendant Albert Gardner, the chief officer of MLM Associates, the condominium developer, also appeals from the same judgment. He argues that "the unit deed restrictions are valid and enforceable" even though not set forth in the master deed or public offering statement, that MLM has standing to enforce them, and that the restrictions are "sufficiently clear to be enforceable."
We affirm the order granting summary judgment substantially for the reasons expressed by Judge L. Anthony Gibson in his opinion of August 12, 1998,[1] reported at 328 N.J.Super. 141, 744 A.2d 1233, with the following caveat.
The trial judge concluded that plaintiff did not have standing because "the negative restrictions Amir seeks to enforce involve prohibitions on sales that are contained in the D'Agostino deed" and those restrictions in the individual deed are only for the "benefit of the Sellers, its successors and assigns." 328 N.J.Super. at 152, 744 A.2d 1233. The D'Agostinos acquired unit R-26 from the Fernicolas, and the D'Agostinos thereafter rented that unit to Brenda Goldstein who is selling the women's clothing from which plaintiff believes he is entitled to protection. The judge believed that as the Fernicolas were the sellers, only they and their successors in title would be entitled to enforce the covenant.
On the other hand, the condominium developer is also seeking to enforce the restrictions. It "still retains at least one unit" in the condominium complex and "asserts that it intended to and did, in fact, create a neighborhood scheme via the restrictions and covenants incorporated in the individual unit deeds to the commercial units." The endeavor by MLM to enforce a scheme of restrictions it created in individual deeds may avoid plaintiff's need to show standing because the Fernicolas acquired their unit, subject to the restrictions, from the developer, although plaintiff is not in the chain of title of the Fernicolas (or defendants D'Agostino from whom defendant Goldstein leased her unit). Plaintiff is, of course, in a separate chain of title of the same developer who joins plaintiff in asserting that a "neighborhood scheme" was created for the protection of owners like plaintiff, through restrictions placed in the individual unit deeds.
Because we agree with Judge Gibson that the restrictions, on the specific use of the commercial units, must be "placed within the master deed [or an amended master deed], at least when created by the developer," 328 N.J.Super. at 156, 744 A.2d 1233, we find it unnecessary to pass upon the standing issue.
Affirmed.
NOTES
[1] The August 12, 1998 opinion made some minor typographical and other non-substantive changes to the original opinion on which the earlier June 19, 1998 order was based. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356016/ | 290 S.E.2d 896 (1981)
John P. HELFELDT and Diane L. Helfeldt
v.
William L. ROBINSON and Colleen Robinson
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY.
No. 14663.
Supreme Court of Appeals of West Virginia.
December 18, 1981.
Dissenting Opinion April 30, 1982.
Steptoe & Johnson and Herbert G. Underwood, Clarksburg, for appellant.
S. J. Angotti, Morgantown, for appellees.
*897 McHUGH, Justice:
This action is before this Court upon the petition of the third party defendants, United States Fidelity and Guaranty Company, Fidelity and Guaranty Underwriters, Inc., (hereinafter "U.S.F.&G."), for an appeal from the final order entered on October 30, 1978, of the Circuit Court of Monongalia County, West Virginia. Pursuant to that order, U.S.F.&G. was held liable upon a contract of insurance to its insureds, William L. and Colleen Robinson, d/b/a Robinson Construction Company, (hereinafter "Robinsons"), for a judgment entered by the circuit court against the Robinsons and in favor of the plaintiffs, John P. and Diane L. Helfeldt, (hereinafter "Helfeldts"), for the faulty construction of a home. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.
The record indicates that the Robinsons and U.S.F.&G. entered into a contract of insurance, policy number 1cc966892, whereby the Robinsons were insured for the period March 17, 1976, to March 17, 1977. In the pleadings filed in circuit court, U.S. F.&G. refers to this contract as a comprehensive general automobile and property liability insurance policy.
On June 26, 1976, William L. Robinson entered into a real estate purchase contract with John P. Helfeldt wherein Robinson agreed to convey to Helfeldt a lot known as Lot 17, Block C, Baker's Ridge Manor Addition, Union District, Monongalia County, West Virginia. Subsequently, by general warranty deed dated August 4, 1976, the Robinsons conveyed the lot to the Helfeldts. As stated in the deed, the consideration for that conveyance was $68,000.
The petition for appeal to this Court alleges that during the period in question the Robinsons were engaged in the building of homes in the area of Monongalia County, West Virginia, and that the home purchased by the Helfeldts from the Robinsons was not completed at the time of sale.
In June, 1977, the Helfeldts filed an action in the Circuit Court of Monongalia County against the Robinsons alleging that the home purchased by the Helfeldts was faulty in design, material and construction and not built "in a workmanlike manner." The Helfeldts alleged that the defendants, the Robinsons, had acted in a negligent manner, in breach of contract and in violation of implied and express warranties of fitness of the home.
Subsequent to a trial held on July 25 and 26, 1978, the circuit court by order entered August 1, 1978, entered judgment in favor of the Helfeldts and against the Robinsons in the amount of $28,037, being $21,037 for cost of repairs and $7,000 for annoyance and inconvenience. The Robinsons were also held liable for interests and costs. The circuit court concluded that the Robinsons had acted negligently and had breached an implied warranty of fitness in the construction of the home. The circuit court held that poor workmanship by the Robinsons had resulted in the damages to the Helfeldts.
Prior to the August 1, 1978, judgment against the Robinsons, the Robinsons filed a third party complaint against U.S.F.&G. That third party complaint asserted that U.S.F.&G. had improperly failed to defend the Robinsons in the Helfeldt action and that U.S.F.&G. was liable to the Robinsons for all sums adjudged against the Robinsons in favor of the Helfeldts concerning the property in question. In its answer to the third party complaint, U.S.F.&G. asserted that the Robinsons had failed to comply with the terms of the insurance contract and, further, that the insurance contract did not cover the type of damages sought by the Helfeldts against the Robinsons.
Nevertheless, by final order entered October 30, 1978, the circuit court entered judgment in favor of the Robinsons and against U.S.F.&G. in the amount of $28,037 plus interests and costs.
In entering judgment against U.S.F.&G., the circuit court concluded that the insurance contract between the Robinsons and U.S.F.&G. was ambiguous and therefore required construction. The circuit court in holding U.S.F.&G. liable to its insureds, the *898 Robinsons, relied upon an exception to the insurance contract's enumerated exclusions of U.S.F.&G. from liability. As the circuit court stated in its October 23, 1978, memorandum opinion:
It is therefore the opinion of this Court that the Robinsons' insurance policy provides coverage for damages found to exist by this Court against the Robinsons and for the benefit of the original plaintiffs upon the liability of a breach of warranty of fitness and that work performed by or on behalf of the named insured will be done in a workmanlike manner. There can be no other conclusion when the policy in the instant case reads as follows, `but this exclusion does not apply to a warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.'
It is from the final order of the Circuit Court of Monongalia County that the appellant, U.S.F.&G., appeals to this Court.
The provisions at issue of the insurance contract between the Robinsons and U.S. F.&G. relate to provisions concerning coverage and exclusion of insurance. Those provisions state as follows:
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of ... property damage to which this insurance applies, caused by an occurrence....
Exclusions
This insurance does not apply:
(a) to liability assumed by the Insured under any contract or agreement except an incidental contract; but, this exclusion does not apply to a warranty of fitness or quality of the Named Insured's products or a warranty that work performed by or on behalf of the Named Insured will be done in a workmanlike manner....
(l) to property damage to premises alienated by the Named Insured arising out of such premises or any part thereof...
(n) to property damage to the Named Insured's products arising out of such products or any part of such products....
(o) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith....
In this appeal, U.S.F.&G. contends that the Helfeldt home was the product of the insureds, the Robinsons, and that defective construction by the Robinsons resulted in damage to that product. Furthermore, U.S.F.&G. asserts that no damage was caused by that defective construction to property other than the insured's product. Therefore, U.S.F.&G. concludes that the damages to the Helfeldt home were not covered by the insurance contract, particularly in view of exclusions (l), (n) and (o). These exclusions state, essentially, that the insurance contract does not cover damages to the insured's product. Rather, as U.S. F.&G. contends, the contract is a general liability insurance contract by which the Robinsons would be covered for damage caused by that product to the persons or property of others.
On the other hand, the Robinsons contend that the insurance contract is ambiguous and should be liberally construed in the Robinsons' favor. In support of this contention, the Robinsons, as did the circuit court, rely upon the exception to exclusion (a) of the insurance contract. Specifically, the Robinsons allege that the exception to exclusion (a) is inconsistent with the other exclusions in question thereby creating the ambiguity. That exception to exclusion (a) states that the exclusion "... does not apply to a warranty of fitness of quality of the Named Insured's products or a warranty that the work performed by or on behalf of the Named Insured will be done in a workmanlike manner."
In McGann v. Hobbs Lumber Company, 150 W.Va. 364, 145 S.E.2d 476 (1965), the plaintiffs retained the Hobbs Lumber Company to construct a home. Shortly after the home had been completed and occupied, a portion of the foundation wall collapsed resulting in damage. The plaintiffs, alleging *899 negligent construction, instituted an action against Hobbs in the Circuit Court of Ohio County, West Virginia.
In McGann, the Hobbs Lumber Company filed a third party complaint against the Aetna Casualty and Surety Company whereby Hobbs alleged that, pursuant to certain insurance contracts, Hobbs could recover against Aetna all sums adjudged against Hobbs in the McGann action for damage to the home. This Court, however, held that an exclusion provision contained within the insurance contracts precluded Aetna from liability to Hobbs.
One of the insurance contracts in McGann provided that Aetna was to insure Hobbs as follows: "To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident." That insurance contract, however, also contained an exclusion clause which stated that the Aetna contract did not apply to injury to or destruction of "... any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named Insured, or work completed by or for the named Insured, out of which the accident arises...." In considering the above provisions, this Court concluded in McGann as follows:
It must be kept in mind that the policy in question is a liability policy, not one insuring the property or work of the insured. Covered is any damage caused by the products or operations used or completed by the insured. In other words, if any product used in the operations of the insured or any work completed by the insured causes damage to any property of another for which the insured may be legally liable, the insurer is liable under this policy.[1]
145 S.E.2d at 479.
In McGann, this Court observed as follows with respect to actions involving insurance contracts: "It is widely recognized that language of insurance policies is often necessarily complicated and difficult for the layman to fully understand. This alone does not connote ambiguity. Contracts of insurance, like other contracts, must receive a practical and reasonable interpretation consonant with the apparent object and intent of the parties." 145 S.E.2d at 481. Finally, this Court concluded in McGann in Syl. pt. 2 as follows: "A liability insurance policy, unlike a builder's risk policy, is designed to indemnify the insured against damage to other persons or property caused by his work or property and is not intended to cover damage to the insured's property or work completed by him."
The McGann v. Hobbs Lumber Company case was cited in Consumers Construction Company v. American Motorists Insurance Company, 118 Ill.App.2d 441, 254 N.E.2d 265 (1969), in which case an action was brought by a board of education against a construction company for the defective construction of a grammar school. The construction company contended that its insurance contract with American Motorist Insurance Company covered the construction company with respect to the board of education's action. The relevant coverage and exclusion provisions of the insurance contract in Consumers Construction Company were the same as the above quoted coverage and exclusion provisions in the McGann insurance contract. In Consumers Construction Company, the Illinois Appellate Court concluded that inasmuch as the Board of Education claimed that the work of the construction company was defective, and did not further assert that such defective work caused damage or injury to other property or persons, the insurance contract did not cover the construction company with respect to the board of education's action.
Coverage and exclusion provisions similar to the coverage and exclusion provisions *900 found in the insurance contract in McGann were also litigated in Home Indemnity Company v. Miller, 399 F.2d 78 (8th Cir. 1968), and Kendall Plumbing, Inc. v. St. Paul Mercury Insurance Company, 189 Kan. 528, 370 P.2d 396 (1962).
In Indiana Insurance Company v. DeZutti, Ind., 408 N.E.2d 1275 (1980), James Gibson, a general contractor, was sued for damages allegedly caused by the faulty construction of a home he had built for Louis and Joanna DeZutti. Gibson was engaged in the construction and remodeling of residential structures, and the home in question was sold to the DeZutti family in 1968. The action of the DeZuttis against Gibson was based upon a breach of warranty of fitness.
In Indiana Insurance Company, Gibson, pursuant to a comprehensive general liability policy, called upon the Indiana Insurance Company to defend Gibson in the DeZutti action. The insurance company refused and asserted that the DeZutti action was not covered by Gibson's insurance contract. In that case the Supreme Court of Indiana held in favor of the insurance company.
The coverage and exclusion provisions in question in the insurance contract in Indiana Insurance Company stated as follows:
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... property damage to which this insurance applies, caused by an occurrence....
Exclusions
This insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but, this exclusion does not apply to a warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner...
(n) to property damage to the named insured's products arising out of such products or any part of such products...
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith....[2]
The contractor in Indiana Insurance Company asserted, as do the Robinsons in the case before this Court, that the exception to exclusion (a) of the insurance contract resulted in insurance coverage with respect to the home buyer's action for breach of warranty of the home. That exception to the exclusion provides "... but this exclusion does not apply to a warranty of fitness of quality of the named insured's products or a warranty that work performed by or on behalf of the Named Insured will be done in a workmanlike manner...." Based upon such exception to exclusion (a) of the insurance contract, the contractor in Indiana Insurance Company asserted, as do the Robinsons in this action, that the exclusions are inconsistent, and thus the insurance contract is ambiguous and should be construed in favor of the insured. The court in Indiana Insurance Company rejected that argument.
The court in Indiana Insurance Company stated that the contractor's theory of coverage ignored the basic principle that exclusion clauses do not grant or enlarge coverage. Rather, exclusion clauses are limitations or restrictions upon the insuring clause. 408 N.E.2d at 1278. Therefore, the court held that "... the exception in (a) (recognizing coverage for breach of warranty) which is expressly limited to exclusion (a) remains subject to and limited by other related exclusions contained in the policy." 408 N.E.2d 1278. As the court stated:
What is covered by the policy is defective workmanship which causes personal *901 injury or property damage not excluded under some provision of the policy. So if the insured's breach of an implied warranty results in damage to property other than the insured's work or product which is excluded by exceptions (n) and (o), the policy would provide coverage. To hold otherwise would effectively convert the policy into a performance bond or guarantee of contractual performance and result in coverage for repair and replacement of the insured's own faulty workmanship. This was not the intent and understanding of the parties at the time the policy was purchased.
408 N.E.2d at 1279.
Finally, the court in Indiana Insurance Company ruled upon the issue of whether the exclusion clauses of the insurance contract applied to the entire home constructed by the contractor or only to that particular item of construction (the improper construction of footings) out of which the damages to the home arose. The court held that exclusion clause (o) denied coverage for damages to the contractor's entire product or work (the home), such damages resulting from that product or work "or from any part thereof." 408 N.E.2d at 1280. As the court stated:
Accordingly, we hold that exclusion (o) excludes coverage for damage to the insured's work, or work done on his behalf, resulting from the work itself or any part of the work; that Gibson's work (or product) was the entire house and the damages to the house caused by the improper construction of the footings done on Gibson's behalf are not covered under Gibson's policy.
408 N.E.2d at 1281.
Upon all of the above, this Court is of the opinion that the Indiana Insurance Company case is persuasive in the action before this Court. The insurance contract provisions involved in that case are for all practical purposes identical to the coverage and exclusion provisions at issue in the case before this Court. We therefore hold that, although an exclusion in a comprehensive general automobile and property liability insurance contract contained an exception for "warranty of fitness or quality of the named insured's products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner," that exception to the contract's exclusion provision did not extend insurance coverage to a contractor for the defective construction of a home where the insurance contract contained other exclusions precluding insurance coverage and the insurance contract in question was a liability insurance policy and not a builder's risk policy. McGann v. Hobbs Lumber Company, 150 W.Va. 364, 145 S.E.2d 476 (1965).
Accordingly, the final order of the Circuit Court of Monongalia County, West Virginia, entered October 30, 1978, is hereby reversed and judgment is entered for the appellant, U.S.F.&G.
Reversed.
HARSHBARGER, Justice, dissenting:
My only disagreement is with the conclusion by the majority that the exception to the exclusion did not create insurance against the very risk to which the Robinsons were exposed. The policy included a provision excluding "... liability assumed by the Insured under any contract or agreement except an incidental contract; but, this exclusion does not apply to a warranty of fitness or quality of the Named Insured's products or a warranty that work performed by or on behalf of the Named Insured will be done in a workmanlike manner...." (Emphasis added.)
The facts were that the Robinsons were charged with unworkmanlike construction of a house they sold to the Helfeldts, exactly what was meant to be covered by the exception from the exclusion.
I am authorized to state that McGRAW, J., joins me in this dissenting opinion.
NOTES
[1] In McGann v. Hobbs Lumber Company, supra, this Court stated as follows: "This liability policy clearly was designed to indemnify the insured against damage to other property or parties. It was not intended to cover his property or work completed by the insured." 145 S.E.2d at 481.
[2] The Court in Indiana Insurance Company did not make reference to an exclusion "l" in the insurance policy involved in that case. In the action before this Court, exclusion l of the insurance contract states as follows: "This insurance does not apply: (l) To property damage to premises alienated by the Named Insured arising out of such premises or any part thereof...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356093/ | 249 Ga. 289 (1982)
290 S.E.2d 439
STAPP
v.
THE STATE.
38295.
Supreme Court of Georgia.
Decided April 21, 1982.
Charles A. Mullinax, for appellant.
John Strauss, District Attorney, for appellee.
MARSHALL, Justice.
On Eddie Stapp's appeal from the entry of judgment on his plea of guilty to the charge of theft by taking and the 12-months' imprisonment sentence, the Court of Appeals affirmed, rejecting his contentions of denial of assistance of counsel and of his unknowing and involuntary entry of the guilty plea. 160 Ga. App. 427 (287 SE2d 234) (1981). We granted certiorari, and reverse on both grounds.
1. There is evidence in the record as follows. When the defendant was charged with theft by taking (stealing five gallons of gasoline from an automobile), he made no attempt to contact a private attorney, since he could not afford his services. Because of his difficulty in reading, writing and understanding what he does read, he had a secretary in the district attorney's office fill in for him their "Declaration of indigency" form, which is used to assist the trial court in determining the defendant's eligibility for appointed counsel, pursuant to the Georgia Indigent Defense Act; Code Ann. Ch. 27-33 (Ga. L. 1979, p. 367).
*290 Under oath, the defendant revealed in the form that he could not afford to retain an attorney to defend him against the misdemeanor charge. To answer the first question on the form: "How much money do you receive at your present job?", the secretary asked, "What is your bring-home pay?" The "Guidelines for Local Indigent Defense Programs" approved by this court pursuant to Code Ch. 27-33, supra, stipulate that "Net income is intended to include only a client's take-home pay, which is the gross income earned by a client minus those deductions required by law and/or as a condition of employment." (Emphasis supplied.) 246 Ga. 839; appendix to Code Ann. Ch. 27-33, supra. The post-conviction hearing showed that the defendant did not have any deductions made by his employer for taxes (state, federal or social security) and that he had an estimated liability for them in the amount of $20.56 per month. Although the form had a space for him to list all his debts which were payable weekly or monthly, and he listed a debt of $1,600 to Walton County Hospital which was payable at $45 per month, there was no space to list extraordinary regularly incurred expenses such as the $125-a-month medical and drug expenses the defendant must pay because his infant daughter is severely anemic.
The judge's law clerk testified that he considered the form to be "inadequate" for making a determination of eligibility for court-appointed counsel, and that he reviewed the form for only about 30 seconds before he made the initial determination that the defendant was ineligible. After the law clerk made his finding, it was reviewed by the trial judge before Stapp testified at the probation revocation hearing of a co-accused, but no additional information was provided.
The Court of Appeals found that the defendant's income of $125 per week, less "certain expenses," exceeded the $310-per-month minimum income for non-indigent status under the above-mentioned guidelines. However, there was uncontroverted evidence that on some weeks the defendant received less than $125 per week because he was not able to work a full week; that he does not own any real property, stocks, bonds, or monies in a checking or savings account; that his wife is unemployed; that his household expenses for food, clothing, utilities, shelter, medical supplies, etc., averaged $586 per month, with his average monthly income being only $452.75, leaving a deficit of $129 per month, which they borrow from his parents.
If the income question had been properly presented to the defendant, he would have revealed an income of $479.44 a month. After subtracting his hospital debt, the court could have found that he had $434.44 in income. If, however, the court had had the *291 daughter's medical expenses before it and wished to exercise its discretion under Section C of the Uniform Eligibility Guidelines (246 Ga. 840), which provides for "Special Situations" and permits the local indigent defense program to accept a client "who is unable to obtain counsel due to special circumstances such as ... hardship...," it could have found that a person who is required to spend 25% of his gross income for medical care and drugs for a chronically ill family member, is entitled to have this amount subtracted from his income. In the present case, the exercise of this discretion would have enabled the defendant to come within the income-eligibility guidelines. Therefore the inadequacy of the form prevented the trial court from exercising its discretion, denying the defendant his right to appointed counsel.
The majority of the Court of Appeals, in holding that the contention of denial of the right to counsel is without merit, refers to the trial court's informing the defendant of his right to retained counsel, and the offer and declining of same. However, declining retained counsel which he could not afford, did not amount to an intelligent, voluntary and knowing waiver of any counsel, in view of the fact that he could have been, but was not, held to be eligible for court-appointed counsel under the guidelines.
2. "The burden is on the state to show affirmatively that a guilty plea was intelligently and voluntarily entered once challenged by the petitioner. Boykin v. Alabama, [395 U.S. 238 (89 SC 1709, 23 LE2d 274) (1968)]; Roberts v. Greenway, 233 Ga. 473 (211 SE2d 764) (1975)." Andrews v. State, 237 Ga. 66 (1) (226 SE2d 597) (1976).
The evidence in this case does not meet this test. The trial court had before it a 19-year-old defendant who was semi-literate, having an eighth-grade education, but having repeated the last three grades. He had difficulty in reading, writing and understanding what he does read. He had never been arrested or charged with any other misdemeanor or felony. He was unfamiliar with the judicial system and had never had an occasion to talk with an attorney. He appeared in superior court pursuant to a subpoena to testify in another case. After testifying (wherein, without assistance of counsel, he admitted his culpability of the offense charged against him), he was approached by the state about disposing of his case. No friends, family, or counsel was present. He was never arraigned by the state. He was taken by the assistant district attorney to a room and questioned in the presence of two deputies. He was told that the state would recommend, and he could expect to receive, 12-months' probation and a fine if he entered a plea of guilty. He was told that "he could employ his own attorney or he could represent himself," but that the state's recommendation would be the same with or without *292 an attorney. He was told that "in most instances of a misdemeanor... the recommendation of the state was followed by the court."
The trial court informed the district attorney on the record in the presence of the defendant that he would not accept the district attorney's recommendation of 12-months' probation and a $500 fine, and that if the defendant pleaded guilty, he would be sentenced to 12-months' confinement. The district attorney then asked Stapp, "Do you still want to enter your plea of guilty," to which Stapp replied that he did.
The majority of the Court of Appeals held that "Appellant's right to withdraw his plea was implicit in this question asked him by the district attorney." "The fact that here the guilty plea inquiries were addressed to the defendant by the district attorney instead of the trial court is not a ground for reversal." State v. Germany, 245 Ga. 326, 328 (265 SE2d 13) (1980). However, the majority opinion here recognized that "[i]t is better practice to specifically tell the accused that he has a right to withdraw his plea..." "`What is at stake for an accused facing ... imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.' (Emphasis supplied.) Boykin v. Alabama, supra, pp. 243-244." Andrews v. State, 237 Ga. 66, supra, (1). In State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980), we held that, "if the trial court intends to reject said plea agreement, the trial court shall, on the record, inform the defendant personally ... (4) that the defendant may then withdraw his or her guilty plea as a matter of right." (Emphasis supplied.) The defendant testified that he did not know what an indictment, an accusation, a misdemeanor or a felony were; that he did not know that he had a right to a jury trial; that his decision to plead guilty was based on the state's recommendation of probation; and that he did not know that he had the right to withdraw his guilty plea.
We have already held that the defendant was denied benefit of counsel. "Prior to responding to such a charge, any defendant needs capable legal counsel in order to determine such vital questions as whether the indictment is properly drawn, whether the accused has capacity to commit crime, whether the evidence is sufficient to convict and, in the final analysis, whether the defendant should stand trial or appeal to the judge for a lighter sentence. It would be expecting too much of any defendant, alone, to answer for himself such questions as these." Fair v. Balkcom, 216 Ga. 721, 728 (119 SE2d 691) (1961).
Under the facts of the record here, we hold that the defendant unrepresented by counsel, unaware of the nature and consequences *293 of the plea procedures and of his right to withdraw his guilty plea did not knowingly, intelligently and voluntarily enter his guilty plea. Accordingly, we reverse the judgment of conviction and sentence, and remand the case to the trial court with direction that the defendant be arraigned as though no plea had been entered, and a determination be made as to his present eligibility for courtappointed counsel.
Judgment reversed with direction. All the Justices concur, except Jordan, C. J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356098/ | 162 Ga. App. 218 (1982)
290 S.E.2d 202
HARVARD
v.
THE STATE.
63328.
Court of Appeals of Georgia.
Decided April 9, 1982.
Rehearing Denied April 30, 1982.
Tony L. Axam, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Harvey Moskowitz, Assistant District Attorneys, for appellee.
SHULMAN, Presiding Judge.
Appellant was indicted for murder and convicted of voluntary manslaughter. His enumerations of error involve the admission of evidence concerning his financial condition, a remark of the prosecutor on the same topic, the trial court's failure to charge the jury on the use of force in defense of one's habitation, and the denial of appellant's motion for a directed verdict.
1. During the cross-examination of appellant, the prosecuting attorney asked several questions about judgments against appellant and liens against appellant's property and submitted documentary evidence of the existence of those judgments and liens. Appellant argues that the admission of that evidence was prejudicial and had no bearing on any issue in this case.
Our review of the transcript shows that there had been evidence admitted earlier, including appellant's testimony on direct examination, concerning business dealings between appellant and the decedent, specifically a loan from the decedent to appellant, secured by a mortgage on appellant's home. There was also evidence that the decedent had come to appellant's home on the night of his death to collect the money appellant owed him.
We find no error in the admission of the evidence of which appellant complains. Evidence of appellant's indebtedness to the victim was clearly material to the issues on trial in that it tended to show a motive for the killing. Likewise, evidence that the mortgage given by appellant was worthless because of senior encumbrances was admissible to show a reason for the animosity between appellant and the victim. "On a trial for murder, evidence of recent prior difficulties between the defendant and the deceased is admissible as shedding light on the state of feelings between the accused and the deceased and showing motive. [Cits.] Evidence which is otherwise admissible is *219 not rendered inadmissible because it incidentally places the defendant's character in issue. [Cits.]" Boling v. State, 244 Ga. 825, 828 (262 SE2d 123).
The documentary evidence was admissible for the additional purpose of impeaching appellant's testimony. When asked about the existence of liens and judgments, appellant denied their existence and denied knowledge of any which might exist. The evidence of those judgments and liens was admissible to disprove the facts to which appellant had testified. Code Ann. § 38-1802.
2. In his second enumeration of error, appellant contends that he was denied a fair trial because of improper and prejudicial remarks by the prosecutor. The record shows that counsel neither objected specifically to the allegedly improper remarks nor made a motion for mistrial. Therefore, any error was waived. Payne v. State, 158 Ga. App. 732 (282 SE2d 155); Holt v. State, 147 Ga. App. 186 (5) (248 SE2d 223).
3. Appellant's contention that the trial court erred in its refusal to charge on the use of force in defense of habitation is without merit. There was no evidence that the deceased was attempting to force entry into appellant's habitation. On the contrary, appellant's testimony was that the victim stood outside and called to appellant to come out. Under those circumstances, the charge was not authorized by the evidence. See Code Ann. § 26-903.
4. Appellant's final enumeration of error is that the trial court erred in denying appellant's motion for a directed verdict. That enumeration of error is utterly without merit in light of evidence that the deceased came to appellant's home and created a disturbance, but retreated some distance from appellant's home before appellant shot him several times with a semiautomatic rifle. "The evidence was sufficient to support conviction; therefore, denial of his motion for directed verdict was not error." Whitehead v. State, 160 Ga. App. 644 (287 SE2d 648).
Judgment affirmed. Quillian, C. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356096/ | 162 Ga. App. 142 (1982)
290 S.E.2d 356
HOOKS
v.
BALDWIN COUNTY DEPARTMENT OF FAMILY AND CHILDREN SERVICES.
63555.
Court of Appeals of Georgia.
Decided April 16, 1982.
Milton Gardner, Jr., for appellant.
Michael J. Bowers, Attorney General, Robert S. Stubbs, Executive Assistant Attorney General, H. Perry Michael, Senior Assistant Attorney General, Vivian Davidson Egan, George M. Stembridge, Jr., Mark H. Cohen, Carol Atha Cosgrove, Assistant Attorneys General, for appellee.
QUILLIAN, Chief Judge.
This is the appeal of a mother from the termination of her parental rights to her daughter.
The termination hearing was held in May 1981. At that time appellant was 37 years old, had never married, and also had an 18-year-old retarded daughter who was a patient at Central State Hospital. The child in question was a three-and-a-half-year-old girl who had lived with her mother for the first 16 months of her life until February 1979 when appellee DFCS obtained custody of her. Held:
1. Appellant asserts that the evidence is insufficient to support the termination of her parental rights.
"`[I]t is not proper to consider the question of termination of parental rights based solely upon a "welfare of the child" test, without some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child, or by what is tantamount to physical or mental incapability to care for the child.'" Chancey v. Dept. of Human Resources, 156 Ga. App. 338, 340 (274 SE2d 728).
To show appellant's unfitness as a parent DFCS produced evidence that in the period from about 1977 to early 1980, over a year prior to the hearing, there were several episodes in which appellant *143 became upset over minor or imagined matters, causing her either to cry, scream at or curse and sometimes threaten whomever she believed was the cause. The child was not present during these outbursts and there is no evidence that appellant ever physically harmed anyone. In most instances the object of her ire was DFCS workers, some of whom had been dealing with appellant concerning the older retarded daughter before the younger was born. A case worker testified that appellant had altercations with some of her neighbors because of verbal and other abuse she was receiving from them and was advised to ignore them. Conduct of this nature apparently led to DFCS obtaining temporary custody of the child in February 1979 when appellant was arrested after an altercation with a DFCS worker concerning the older daughter and police authorities asked DFCS to care for the child. Appellant was an inhabitant of a low income housing project, did not get along well with her neighbors and usually stayed in her own home.
Appellant was shown to drink on occasion, especially on weekends. Drinking did not appear to be involved when appellant became upset with DFCS workers, however. Appellant completed an alcohol rehabilitation course as a result of being cited for DUI, and her testimony that she had not had a drink in the six months preceding the hearing was undisputed.
A psychological evaluation of appellant made in April 1979, after DFCS took custody of the child, was put in evidence. Because the evaluating psychologist stated in cross-examination that the evaluation was no longer current, the trial court stated that it did not consider it. However, the evaluation does indicate that appellant is mildly retarded with episodes of drinking and aggression; that she is able to care for her own needs and manage a simple household; and that she can read and write and do simple arithmetic. The report also stated that appellant feels a desperate need to keep her children and will fight for their custody.
Except for some neighbors' testimony that when she had custody appellant once poked the child and made her cry and at another time hit her, there is no showing that the child was abused or not properly cared for by appellant. Nor is there any evidence that appellant's home is an unfit place for the child to live. There is testimony from neighbors that appellant properly cared for the child when she had custody of the child and did not abuse her. Appellant is apparently able to support herself and the child on social security disability payments and a one day a week job as a domestic. Appellant did not miss any of her visits with the child, walking to them from her house. A DFCS case worker who observed parts of the visits testified that appellant did not play with the child, stimulate language *144 development by reading to the child, or discipline her, and let her play by herself. However, the worker admitted that appellant may have been afraid to discipline for fear of being accused of abusing the child.
Evidence of whether the child is deprived is slight. It consisted of testimony that the child was behind in her language development, is improving, and in all else is average. These observations were made after the child had been in DFCS custody for over 26 months and attending a school. The child was taken from appellant at the age of 16 months when it presumably had little or no language skills. Under these circumstances it is difficult to attribute any delay in language skill development to appellant.
Not only is the evidence of deprivation unpersuasive, but the evidence of parental unfitness is not compelling.
While appellant may be slightly retarded, drinks on occasion, and demonstrates animosity towards DFCS workers, the evidence presented simply does not clearly and convincingly demonstrate that appellant is an unfit parent. The evidence to the contrary is more compelling.
"`The appellant's conduct, while not exemplary, cannot be said to be so profoundly detrimental or egregious as to permanently terminate her rights to her child.' See Shover v. Dept. of Human Resources, 155 Ga. App. 38 (270 SE2d 462) (1980); Patty v. Dept. of Human Resources, 154 Ga. App. 455 (269 SE2d 30) (1980)." Harper v. Dept. of Human Resources, 159 Ga. App. 758, 760 (285 SE2d 220).
Compelling facts are required to terminate parental rights. Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306); Griffin v. Walker County DFCS, 159 Ga. App. 63, 65 (282 SE2d 705). Compare, Miele v. Gregory, 248 Ga. 93 (2), 95 (281 SE2d 565); Bozeman v. Williams, 248 Ga. 606, 607 (285 SE2d 9). We find the facts are not sufficiently compelling for termination in this case.
2. The remaining enumeration need not be addressed.
Judgment reversed. Shulman, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356100/ | 290 S.E.2d 730 (1982)
STATE of North Carolina
v.
Kenneth Wayne BEASLEY.
No. 8110SC1137.
Court of Appeals of North Carolina.
May 4, 1982.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Clifton H. Duke, Raleigh, for the State.
*731 Canaday & Canaday by C. C. Canaday, Jr., and Claude C. Canaday, III, Benson, for defendant appellee.
HEDRICK, Judge.
The State argues that the G.S. § 49-4(1) three year statute of limitations for prosecutions under G.S. § 49-2 violates the Equal Protection Clause of the federal constitution in that it prescribes a limitations period for the prosecution of persons who willfully fail to support their illegitimate children whereas there is no limitations period for the prosecution under G.S. § 14-322(d) of persons who willfully fail to support their legitimate children. Citing County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C.App. 182, 264 S.E.2d 816 (1980), the State contends that G.S. § 49-4(1) constitutes an impermissible legislative discrimination against illegitimate children, in that it "constitutes an impenetrable barrier to enforcing the illegitimate child's statutory right to parental support through criminal proceedings."
The illegitimate child has no statutory right to parental support through criminal proceedings; rather, such child's right to parental support is enforced by an action under G.S. § 49-14, entitled "Civil action to establish paternity," and G.S. § 49-15, which imposes a support obligation on persons determined to be the parents of an illegitimate child. The function of a criminal prosecution of a parent who willfully fails to support his illegitimate child is not to compensate the illegitimate child, but to promote society's interest in preventing the parents of children from willfully leaving those children without parental support. The actions to enforce the child's right to support under G.S. §§ 49-14, -15 are civil actions; a prosecution of a parent for willful nonsupport under G.S. § 49-2 is a criminal proceeding. The distinction between the two is explained in State Highway and Public Works Commission v. Cobb, 215 N.C. 556, 558, 2 S.E.2d 565, 567 (1939) as follows:
"The distinction between a tort and a crime with respect to the character of the rights affected and the nature of the wrong is this: A tort is simply a private wrong in that it is an infringement of the civil rights of individuals, considered merely as individuals, while a crime is a public wrong in that it affects public rights and is an injury to the whole community, considered as a community, in its social aggregate."
"Crime is an offense against the public pursued by the sovereign, while tort is a private injury pursued by the injured party." [Citations omitted]
Since the statute of limitations on the criminal proceedings does not affect the illegitimate child's right to recover in a civil action, unlike the discriminatory statute of limitations on an illegitimate's civil action which was invalidated in County of Lenoir, supra, there is no violation of equal protection. The parties to the present case are the State and the defendant; there has been no showing that either's rights to equal protection are impaired by the challenged statute of limitations, nor is it clear how a state could ever be the victim of an equal protection violation by its own legislation. No illegitimate children are parties. The State is attempting to assert the equal protection rights of illegitimate children, but even if the challenged statute did offend such rights, "[t]he general rule is that `a person who is seeking to raise the question as to the validity of a discriminatory statute has no standing for that purpose unless he belongs to the class which is prejudiced by the statute.'" Appeal of Martin, 286 N.C. 66, 75, 209 S.E.2d 766, 773 (1974). The State's assignment of error is without merit.
Affirmed.
HILL and BECTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356097/ | 249 Ga. 261 (1982)
290 S.E.2d 87
WILLIS
v.
THE STATE.
38409.
Supreme Court of Georgia.
Decided April 7, 1982.
Word, Cook & Word, Gerald P. Word, for appellant.
Arthur E. Mallory III, District Attorney, Harger Hoyt, Assistant District Attorney, Michael J. Bowers, Attorney General, W. Davis Hewitt, Assistant Attorney General, for appellee.
GREGORY, Justice.
In November, 1980, the defendant, Charles E. Willis, was indicted for the murder of his son, Randall Willis. The first trial of the case resulted in a mistrial. On retrial the defendant was convicted of murder and sentenced to life imprisonment. His motion for new trial was denied and this appeal followed.
At trial the victim's common-law wife testified that, on the day of the victim's death, she, the victim, and Billy Pitts located the defendant at the house of Eunice Reynolds and received permission from the defendant to cut timber on the defendant's land. The defendant left with the victim and Pitts to cut timber; the victim's wife remained at the home of Eunice Reynolds. The victim's wife testified that when the three men returned several hours later, it was apparent to her they had been drinking. Shortly after their return the three men left Reynolds' house to look for deer tracks, taking the defendant's rifle with them. When Pitts and the victim returned to Reynolds' house around 8:00 p. m., the defendant was not with them. The victim's wife testified that the victim appeared "scared" and "upset." She and the victim immediately left to go to their trailer, located a short distance from Reynolds' home. The victim took the defendant's rifle with him. As they were parking the car they saw the headlights of an approaching vehicle. The victim's wife testified that the victim became agitated, took the defendant's rifle and fled into their garden, which was overgrown with weeds. She lay down on the front seat of the car. When it became apparent that the defendant was the occupant of the approaching car, the victim emerged from his hiding place. The victim's wife testified that after joking with her, the defendant informed the victim that he had come to get his rifle as he planned to go deer hunting early the following morning. The victim then instructed his wife to get the rifle from the garden. The victim's wife testified that while the victim and the defendant talked, she unloaded the rifle and placed it in the back seat of the defendant's car; she gave three unspent shells to Eunice Reynolds who was waiting for the defendant in the front seat of his car. She then told the *262 defendant to leave. The victim's wife testified that the victim said, "I love you" to the defendant. The defendant turned abruptly, asked "you want something, boy?" He then shot the victim "with a handgun." The victim ran toward the trailer; the defendant pointed the gun at the victim's wife, then left. The victim's wife found the victim dead on the porch of the trailer. The victim's wife denied seeing any other car near the trailer during these events.
Eunice Reynolds testified that she accompanied the defendant to the victim's trailer to get his rifle. Reynolds testified that, just as the defendant got out of the car, a yellow and black car drove down the victim's driveway, turned around, and drove out the driveway to the main highway. She stated that the victim's wife "threw" the rifle in the back of the defendant's car, but denied the victim's wife had unloaded the gun or given her any unspent shells from the gun. Reynolds testified that either "just before" or "just after" the victim's wife put the rifle in the defendant's car, she heard a gunshot. The defendant returned to the car and told Reynolds the victim's wife had shot at him. Reynolds further testified that she never saw the defendant in possession of a gun while visiting the victim's residence.
Reynolds stated that after she and the defendant returned to her home, she drove back to the victim's trailer "to see what happened." She explained that the defendant did not accompany her because the victim's wife had shot at him.
The defendant testified that he had gone to the victim's residence, unarmed, for the sole purpose of getting his deer rifle. He testified that a car drove down the victim's driveway while the victim's wife was putting the rifle in his car; that the car turned around and drove out to the main highway; that when he heard a gunshot come from the direction of his car, he thought the victim's wife was firing at him, and immediately left; that he was unaware his son had been injured when he left; that when he returned to Reynolds' home he unloaded the rifle and it accidentally discharged; that after Reynolds went back to the victim's trailer, he took "a couple of drinks" because he was "nervous from being shot at." He also testified that when Reynolds informed him his son had been shot, he was preparing to go to his son when the sheriff arrived to arrest him.
A deputy sheriff testified that, following arrest, the defendant told him that the victim "put some bad stuff on me" and that "it was either him or me." The defendant denied making either of these statements.
No autopsy was performed on the victim. The medical testimony at trial was that the nature of the victim's wound indicated *263 he had been shot with a single bullet which had passed entirely through his body. The medical examiner testified that x-rays indicated no bullet or bullet fragments were present in the victim's body. The medical examiner further testified that he was unable to judge from the wound the type of gun used to kill the victim, but that he estimated the bullet was larger than a 25 caliber. The bullet which killed the victim was never recovered. The defendant's rifle was the only gun introduced into evidence.
(1) The defendant first argues that the trial court erred in denying his motion for new trial on the basis of newly discovered evidence[1] and in denying his petition for a writ of error coram nobis.
Defendant offers as newly discovered evidence a letter from the Fulton County Medical Examiner, written some ten months after the second trial of defendant's case. In this letter the medical examiner expresses his opinion that "a thru-and-thru-wound of the type described would be more consistent with a rifle than any but the largest handgun." The defendant also urges a new trial should be granted on the basis of a letter written by a consulting firearms examiner expressing his opinion that from the "description of the wound" the wound appeared to have been made by a "rifle bullet rather than a bullet fired from a handgun."
Code Ann. § 70-204 provides "[a] new trial may be granted in all cases when any material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, shall be discovered by the applicant after the rendition of a verdict against him, and shall be brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial."
"Motions for new trial on the ground of newly discovered evidence are not favored. All applications for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and unless it affirmatively appears that he has abused his discretion in overruling the same, his discretion will not be controlled." Kitchens v. State, 228 Ga. 624, 626 (187 SE2d 268) (1972); Code Ann. § 70-208.
We find the defendant has failed to show that this "newly discovered evidence" is not owing to the want of due diligence that he did not acquire it sooner and that it is so material that it would probably produce a different verdict. See, Drake v. State, 248 Ga. 891 *264 (287 SE2d 180) (1982); Burge v. State, 133 Ga. 431, 432 (66 S.E. 243) (1909).
While defendant argues that the newly discovered evidence has come to his attention since trial, he concedes that it was "readily discoverable" at the time of trial and that by exercising "ordinary diligence" this evidence could have been discovered. We agree. Moreover, we are unable to say that this evidence is so material that it would probably produce a different verdict. The letters from the doctor and the firearms' expert indicate only that from the defendant's description to them of the victim's wound, they are of the opinion that a rifle rather than a handgun caused the victim's death. We cannot say, after examining the record as a whole, that this evidence would probably produce a different verdict. Therefore, we find that the trial court did not abuse its discretion in denying defendant's motion for new trial.
As this court has held that the writ of error coram nobis was the predecessor to an extraordinary motion for new trial based on newly discovered evidence, and that the prerequisites for granting the writ or the motion "appear to be identical," Waye v. State, 239 Ga. 871, 873 (238 SE2d 923) (1977), we conclude that the trial court did not err in denying defendant's petition for the writ.
(2) Following the first trial but prior to the second trial the defendant submitted to a polygraph test. The affidavit of the examiner who administered the tests states that the defendant's "polygraph charts indicated that he was truthful in relating the events [of the night of the victim's death] as he recalled them. There was no indication that [the defendant] actually shot his son." Defense counsel apparently attempted to get the State to stipulate to the results of the polygraph test so that the results would be admissible at trial under the authority of State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977). There this court held "upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have." Chambers at 76-77.
The State declined to stipulate for reasons which do not appear in the record; the defendant's allegation that the refusal "was obviously to gain a tactical advantage" is not supported by the record.[2]*265 No offer of proof of the results of the test was made at trial, although the defendant testified on cross-examination that he "took a lie detector test" and "passed" it.
The defendant now argues that the State's refusal to stipulate to the admission of the polygraph results violates his right to due process under the authority of McMorris v. Israel, 643 F2d 458 (7th Cir. 1981). We have carefully studied the McMorris case, but are unpersuaded by its reasoning. We adhere to the rule set out in Chambers, supra. Absent an express stipulation by the State and the accused that the results of a polygraph test will be admitted in evidence, the results are inadmissible.
(3) Defendant argues that the trial court erred in permitting a deputy sheriff to testify to the results of a trace metal test performed on the defendant to detect gun powder burns on his hands as the State failed to lay a proper foundation for the admissibility of the testimony. The defendant takes the position that absent a showing of the witness' expertise in administering the test and the reliability of the test itself, the trial court should have excluded the witness' testimony as to the results of the test.
The witness testified that he had performed trace metal tests "15 or 20" times and that he had been qualified two or three times previously in a court of law to testify to the results of trace metal tests. He then explained to the jury the procedures used in administering the test.
We find this testimony sufficient to qualify the witness as an expert, particularly in view of the fact that no objection to his qualifications was raised at trial. We also note that the defendant testified he had twice fired his rifle on the day of the victim's death. We find this enumeration of error to be without merit.
(4) Defendant next argues that the trial court erred in admitting the results of an intoximeter test administered to the defendant on the night of the victim's death. In his brief the defendant insists that he did not voluntarily consent to take the test, and complied only because he was warned under Code Ann. § 68B-306[3] that if he refused to take it, his driver's license would be suspended. The defendant maintains that since the offense with which he was charged did not arise "out of acts alleged to have been committed while [he] was driving or in actual physical control of a *266 motor vehicle," Code Ann. § 68B-306 (a), his consent to take the intoximeter test under this section is invalid. The administering officer testified that the defendant freely consented to take the test and that he read the rights under Code Ann. § 68B-306 to the defendant as a routine matter. The defendant testified on direct examination that he "agreed" to take the intoximeter test.
The record clearly shows that the defendant neither objected to the admissibility of the intoximeter results nor contested the issue of the voluntariness of his consent to take the test at trial. He may, therefore, not raise these issues on appeal. Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980); Tucker v. State, 245 Ga. 68 (263 SE2d 109) (1980).
(5) The victim's wife testified that the victim told her "his daddy was going to kill him." The defendant objected and asked that the statement be stricken from the record and the witness admonished. The trial court ordered the statement stricken, cautioned the witness to not "go into that" and instructed the jury to disregard the statement. Defendant now argues that the trial court erred in not granting a mistrial "sua sponte." We do not agree. The trial court's response to the defendant's objection was appropriate. We find no error.
(6) Last the defendant argues that his trial counsel rendered ineffective assistance in not objecting to the matters referred to in enumerations three, four and five, supra; in failing to request an autopsy and exhumation of the victim's body; and in failing to make an offer of proof of the results of the polygraph test.
We note at the outset that the test regarding effective assistance of counsel in this State is "`not errorless counsel, and not counsel judged ineffective by hindsight, but counsel . .. rendering reasonably effective assistance.'" Hawes v. State, 240 Ga. 327, 329 (240 SE2d 833) (1977); Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). "`When inadequate representation is alleged [one] critical factual inquiry [may] relate to . . . whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.'" Hawes, supra, at 329. The decision of "what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client." Reid v. State, 235 Ga. 378, 379 (219 SE2d 740) (1975); ABA Standards relating to the Administration of Criminal Justice (1974), the Defense Function, § 5.2 (b); Hawes, supra, at 330.
Applying these principles to the record in this case, we cannot say that the defendant was denied his constitutional right to effective assistance of counsel. Specifically, we note defendant's trial counsel *267 argued extensively to the jury that the State had failed to prove its case beyond a reasonable doubt; that the State had not only failed to produce the murder weapon or the bullet that killed the victim, but that the State had failed to demonstrate what type of gun was used to kill the victim. The defendant maintained the State had demonstrated nothing more than "bizarre factual events that don't tie in together." Thus, part of the defense strategy was to highlight the inconclusiveness of the evidence in the State's case; the defendant could well have determined that this strategy might be undermined by the results of an autopsy.
We conclude that the matters on which the defendant rests his argument that his trial counsel's assistance was ineffective are strategical and tactical decisions which we do not purport to second guess.
Judgment affirmed. All the Justices concur.
NOTES
[1] While the defendant filed both a motion for new trial and an extraordinary motion for new trial based on newly discovered evidence, the record indicates that both motions were filed within the time allowed by the trial court for the motion for new trial. See Code Ann §§ 70-204; 70-301.
[2] The State maintains that it had "a number of" reasons for refusing to stipulate to the results of the polygraph test and that these reasons were given to defendant's trial counsel. The State points out that defendant's present counsel has never asked what these reasons were.
[3] This code section provides, in part, "any person who operates a motor vehicle upon the highways of this State shall be deemed to have given consent . . . to a chemical test . . . for the purpose of determining the alcoholic or drug content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving. . ." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2632620/ | 103 P.3d 217 (2004)
124 Wash.App. 696
STATE of Washington, Respondent,
v.
Richard Leon HOSIER, Appellant.
No. 51972-7-I.
Court of Appeals of Washington, Division 1.
December 20, 2004.
*219 Eric Nielsen, Sea., WA, for Appellant.
Seth Fine, Everett, WA, for Respondent.
APPELWICK, J.
Richard Hosier was convicted of two counts of communication with a minor for immoral purposes (CMIP), one count of attempted CMIP, and two counts of harassment. The convictions were based on sexually explicit messages Hosier wrote, and placed where it was likely that children and/or young women would find them. Hosier challenges his convictions on all five counts on the grounds that there is insufficient evidence to support them. He also challenges the trial court's denial of his motion to suppress evidence found during a search of his residence pursuant to a search warrant. We affirm.
FACTS
On May 2, 2002, several three- and four-year-old children notified staff at the Kids N Us Day Care (day care) that they had found a pair of girl's underwear on the chain link fence that encircled the day care's playground. The following message was written on the underwear:
I love baby sitting this little girl 7 yr old and already as nasty as most big girls ever get she does everything but fuck and real soon I'll be getting it all she is ready and willing just got to open up the gold mine to heaven ... daddy.
On June 24, 2002, Mr. Smith, whose house was across the street from Hosier's residence, was mowing his yard when he discovered two notes on the grass. One note read "I love to eat young fat girls pussys (sic)." The second note read: "Has your pussy ever played with by a stranger who just wanted to be as nasty as he could get. Baby I want to play with yours right now while I stick my tounge (sic) in and out of your tight asshole."
Smith notified the police. Based on a comparison of the notes with samples of Hosier's handwriting on file from his registration as a sex offender, a handwriting examiner opined that there was a 75 percent chance that Hosier had written the notes. Smith was worried that the notes were intended for his 13- year-old daughter, M.S., who frequently played on the lawn and had been playing on the lawn earlier that day.
On July 15, 2002, a teacher at the day care found a second pair of underwear in the day care parking lot. Written on them was the message, "She said she liked me to play with pussy and let me lick and suck on it to (sic) so nice and sweet."
On July 29, 2002, a student at the Everett School of Cosmetology (cosmetology school) found a note in the school's designated smoking area which read:
I want to catch some real young girls and take them someplace where I can do anything I want to them!!!! (At least 2)
First I would tie them up between eather (sic) trees or stakes cut all thier (sic) clothing off of them and play with thier (sic) pussys licking, sucking, maybe even finger fucking them.
Then I'd make them play with each other eating pussys. Just being real nasty with each other.
I'd get all kinds of kinky toys to play with and make movies of them useing (sic) them on each other I'd keep them for at least (sic) a week and do everything to them. Spankings all kinds of things in thier (sic) pussys ass holes, and mouthes (sic). When I had thier (sic) pussys stretched big enough to put my whole hand in side them open and close it
I'd let them go.
On July 31, 2002, an employee at a Bartell Drug Store in Everett (Bartells) found a note *220 near a cash register which read, "I love licking the tight little ass hole of a young girl slipping my tounge (sic) in and out while I finger fuck her pussy." Ms. Swint, a student at the cosmetology school, who sometimes smoked in the designated smoking area, also worked at Bartells. She was the only student at the school who also worked at the store, which was approximately a twenty minute drive from the school.
On August 1, 2002, Hosier was arrested. Also on August 1, 2002, the police sought and received a warrant to search Hosier's residence. In a taped interview with the police, Hosier admitted to putting the notes on the Smith's lawn, and stated that the note about the fat girl was intended for M.S. On January 31, 2003, Hosier was charged by second amended information with three counts of CMIP and two counts of harassment. For each of the three CMIP counts, the State alleged that Hosier had a prior conviction for a felony sex offense, rendering the charged counts felonies. The two harassment charges were misdemeanors.
Prior to trial, Hosier filed a motion to suppress the evidence obtained in the search of his residence. The trial court denied his motion. Following a bench trial, Hosier was convicted of two counts of CMIP, one count of attempted CMIP and two counts of harassment. The trial court sentenced Hosier to 60 months in prison and two years of probation for each of the three misdemeanors on his convictions. Hosier appeals.
ANALYSIS
I. Communication with a Minor for Immoral Purposes
Hosier asserts that there was insufficient evidence before the trial court to support his convictions for CMIP and attempted CMIP under RCW 9.68A.090.
A criminal conviction violates a defendant's constitutional right to due process unless each element is supported by sufficient evidence. State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980). Where the sufficiency of evidence is challenged, this court on review determines whether a reasonable finder of fact could find that the challenged element of the charged crime was proved beyond a reasonable doubt. Green, 94 Wash.2d at 220-21, 616 P.2d 628. The evidence is taken in the light most favorable to the state. Green, 94 Wash.2d at 221, 616 P.2d 628.
RCW 9.68A.090 is part of a legislative effort to prohibit sexual misconduct. State v. McNallie, 120 Wash.2d 925, 931, 846 P.2d 1358 (1993). The statute states:
A person who communicates with a minor for immoral purposes is guilty of a gross misdemeanor, unless that person has previously been convicted under this section or of a felony sexual offense under chapter 9.68A., 9A.44, or 9A.64 RCW or of any other felony sexual offense in this or any other state, in which case the person is guilty of a class C felony punishable under chapter 9A.20 RCW.
Chapter 9.68A RCW provides ample notice of the Legislature's intent to prohibit sexual exploitation and misconduct with persons under the age of eighteen. McNallie, 120 Wash.2d at 932-33, 846 P.2d 1358. It "prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct." McNallie, 120 Wash.2d at 933, 846 P.2d 1358. "`Communicate,' [as the term is used] within RCW 9.68A.090, includes conduct as well as words, and `immoral purpose' refers to sexual misconduct." State v. Pietrzak, 100 Wash.App. 291, 295, 997 P.2d 947 (2000).
Hosier was convicted under RCW 9.68A.090 of one count of CMIP based on two sexually explicit notes he left on Smith's lawn. He was convicted of a second count of CMIP based on his act of having left a pair of little girl's underwear, with explicit, graphic language about proposed sexual activity with a seven-year-old girl, on the fence of the day care. Hosier was convicted of one count of attempted CMIP for his act of leaving a pair of girl's underwear with sexually explicit writing on them on the parking lot of the day care.
A. Count I: M.S.
Hosier placed two sexually explicit notes on the Smith's lawn, on which he knew *221 M.S. played. Hosier admitted that he intended for M.S. to receive at least one of the notes. There is no doubt that the notes described sexual misconduct or that if M.S. had found and read the notes that the crime would have been completed. Hosier asserts that because Smith, rather than M.S., found the notes, M.S. was "never exposed to the words or conduct `communicating' an immoral purpose." He further contends that the State therefore failed to prove the communication element of CMIP for Count I.
The Smith's lawn was visible from Hosier's residence. Hosier frequently observed M.S. playing on the lawn of her parent's home, had watched M.S. as she undressed in her bedroom, and had observed M S. playing on the lawn on the day he left one of the sexually explicit notes on the Smith's fence. M.S.'s father found both notes while he was mowing the lawn. He testified that the notes were "very sexual", "seemingly threatening", and described M.S. Smith also testified that he told M.S. that:
I found some notes that were very sexual and they were seemingly threatening and that I didn't know who had written them, but to be extra careful and don't be alone on the street and that I was going to take the notes to the police.
Smith also informed M.S. that the notes "kind of described her." He was sufficiently concerned about his daughter's safety that he cautioned her to be extra careful and instructed her not to go out onto the street alone. Based on these facts, the trial court found that Smith was a "conduit" between Hosier and M.S.
It was reasonably foreseeable that Smith would find the notes. It is highly foreseeable that, based on the contents of the notes, Smith would communicate to M.S. that she was at risk of being sexually exploited and that she should act with caution. Although Smith did not read the notes verbatim to M.S., it is clear that he conveyed the sexual and threatening nature of the content of the notes to her in an effort to caution and protect her. These facts are sufficient to fulfill the communication element of CMIP.
Relying on McNallie, Hosier also asserts that the record does not show he had the requisite "predatory purpose" to fulfill the statute. His argument is analogous to the defendant's argument in McNallie that indirect or oblique communicative strategies are not within the parameters of RCW 9.68A.090.
In McNallie, a defendant appealed his conviction under RCW 9.68A.090 for two counts of CMIP, arguing that the state had not met its burden of proof. McNallie, 120 Wash.2d at 928, 846 P.2d 1358. The defendant in McNallie asked three 10- and 11-year-old girls "if there was anyone in the area who gave hand jobs." McNallie, 120 Wash.2d at 926, 846 P.2d 1358. On appeal he assigned error to the trial court's refusal to give his proposed jury instruction, arguing that under RCW 9.68A, the term "immoral purposes" must be construed as referring only to communications where a defendant involves a minor in activity expressly defined as "sexual exploitation." McNallie, 120 Wash.2d at 929, 846 P.2d 1358. The Supreme Court disagreed, and stated:
RCW 9.68A.090 does not require the defendant to have made an express offer of payment to a minor in exchange for the minor engaging in sexual conduct. It is sufficient under the statute that the defendant indicated to the minor he would pay anyone for engaging in specific sexual conduct. Such communication, while not the only type which would incur criminal liability under RCW 9.68A.090, represents a predatory undertaking. McNallie not only expressed an interest but a present interest in sexual contact for a fee to the impressionable children in this case. It is unnecessary under the statute for the defendant to have actually communicated a valid contractual "offer" to a 10- or 11-year-old child. An invitation or inducement to engage in behavior constituting indecent liberties with or without consideration, for example, would also satisfy the statute.
McNallie, 120 Wash.2d at 933-34, 846 P.2d 1358[1] The Court also held:
[T]he communication statute, as written and currently located in the code, does not *222 only contemplate participation by minors in sexual acts for a fee, or appearance on film or in live performance while engaged in sexually explicit conduct. Rather, the statute prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct.
McNallie, 120 Wash.2d at 933, 846 P.2d 1358.
Hosier's act of writing sexually explicit words directed at children was no less an invitation than had he uttered the words as did McNallie. The predatory purpose is supported by sufficient evidence. Viewing the evidence in a light most favorable to the State, we find it sufficient to conclude that Hosier's actions constituted a completed communication with M.S.
B. Count II: Day Care Playground
Count II was based on Hosier's act of leaving a pair of girl's underwear on the fence at the day care. Children at the day care discovered the underwear, poked them through the fence, and reported their find to staff at the day care. Hosier asserts that because the children who found the underwear were unable to read, there was no communication.
Hosier cites no authority requiring a victim to understand the sexual nature of a communication. Nor do we interpret RCW 9.68A.090 to mean that a victim must understand the prurient nature of a communication. This court assumes that the legislature did not intend an absurd result and will construe statutes accordingly to effect legislative intent. Esparza v. Skyreach Equip., Inc., 103 Wash.App. 916, 938, 15 P.3d 188 (2000). To require that a minor understand the explicitly prurient nature of a communication in order to fulfill the elements of the crime of CMIP, we would either need to restrict the statute's application to victims sexually mature beyond their years, or to omit from its reach the very victims it is intended to protect. There is no reasonable basis to presume that the Legislature intended such an absurd result. The children's exposure to the underwear with the sexually explicit message on it was sufficient to support the finding that Hosier completed his communication with the children for an immoral purpose.
C. Count III: Day Care Parking Lot
The third count of Hosier's conviction was for attempt to commit CMIP. "A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020. A substantial step is an act that is "strongly corroborative of the actor's criminal purpose." State v. Workman, 90 Wash.2d 443, 451, 584 P.2d 382 (1978).
Hosier wrote the note on girl's underwear and placed it in the day care driveway. The driveway was directly in front of the main entrance to the day care, and thus easily visible to an individual entering the day care. An adult employee of the day care, not a child, found the second pair of underwear. Unlike M.S.'s father, the employee did not convey the threatening content of the note to the children. The children therefore neither received the underwear containing Hosier's message, nor the message itself. Thus, Hosier's effort to communicate with the children was incomplete.
A reasonable trier of fact could find that he intended children to find the underwear. His act of placing a pair of underwear on the driveway of the day care was a substantial step towards the commission of the crime of CMIP. The record supports the trial court's finding that Hosier's act of leaving a second pair of underwear in the day care parking lot constituted attempted CMIP.
II. Harassment
Hosier also challenges his conviction for two counts of harassment. Based on notes Hosier left at the cosmetology school and at Bartells, where Swint, one student of the cosmetology school worked, the trial court found Hosier guilty of two counts of harassment under RCW 9A.46.020.
RCW 9A.46.020 states:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
*223 (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actor; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. Words or conduct includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
Hosier concedes that the statute prohibits "true threats," but claims that there is insufficient evidence that he made "true threats."
"A true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual]." State v. Williams, 144 Wash.2d 197, 207-08, 26 P.3d 890 (2001) (quoting State v. Knowles, 91 Wash.App. 367, 373, 957 P.2d 797 (1998) (original alternation)) (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990)).
Hosier contends that the note he left at the cosmetology school cannot be considered a true threat because, although it referenced confinement and restraint of young women, "Swint did not believe, that Hosier intended to kidnap her, tie her up and sexually assault her." The facts do not support Hosiers claim.
Hosier left one note at the cosmetology schools designated smoking area, an area frequented by Swint. He left a second note adjacent to a cash register, attended by Swint, at Bartells located about twenty minutes away from the school. Following the discovery of the second note at Bartells, Swint believed that Hosier had targeted her and that he might carry out his threat. Swints actions corroborated her fear. Following the discovery of the second note at Bartells, she began carrying mace, stopped riding the bus, and stopped going places alone. The content of these notes and the context of their placement made it reasonable for Swint to fear that Hosier would carry out his threat. Swint testified that she was worried about the safety of her classmates as well as her own safety.
Hosier also maintains that the note he placed at Bartells did not physically threaten anyone, and therefore cannot be considered a true threat. Although the note Hosier left at Bartells did not explicitly threaten physical harm, the sexually graphic, aggressive content of the note would constitute physical harm if the acts they contemplated were completed. Hosier did not expressly identify a victim by name in the notes. Nevertheless, he knew the cosmetology school smoking area was frequented by female students. It was reasonable for Swint to infer that she was being targeted when she learned that a second note had been placed near her work station at Bartells. The content of Hosiers notes, in the context of his strategic placement of them, creates a reasonable inference of an explicit physical threat to Swint. Moreover, RCW 9A.46.020 "also prohibits threats to do any other act which is intended to substantially harm the person threatened ... with respect to his or her... mental health or safety." Williams, 144 Wash.2d at 208, 26 P.3d 890. Even assuming arguendo that Swint reasonably did not fear for her physical safety, the record shows that Hosiers notes made Swint fearful and compromised her mental health.
Hosier also argues that under State v. Kilburn, 151 Wash.2d 36, 84 P.3d 1215 (2004) his notes did not constitute "true threats" because the State did not prove that he intended to carry out his threats. Kilburn does not support Hosier's assertion that his notes were not "true threats."
In Kilburn, a juvenile challenged his conviction under RCW 9A.46.020 on the grounds that the State had not proved he intended to carry out the threat. Kilburn, 151 Wash.2d at 38, 84 P.3d 1215. Explaining that intent *224 need not be shown, the Washington Supreme Court stated:
To avoid unconstitutional infringement of protected speech, RCW 9A.46.020(1)(a)(i) must be read as clearly prohibiting only "true threats."
The reason that "true threats" are not protected speech is because there is an overriding governmental interest in the" `protect[ion of] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.'" We have adopted an objective test of what constitutes a "true threat": A "true threat" is "`a statement made in a "context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intention to inflict bodily harm upon or to take the life"'" of another person. A true threat is a serious threat, not one said in jest, idle talk, or political argument. Under this standard, whether a true threat has been made is determined under an objective standard that focuses on the speaker.
Kilburn, 151 Wash.2d at 43-44, 84 P.3d 1215. (Internal citations omitted.) Thus, although RCW 9A.46.020 does require a "mental element" because that statute states that the defendant "knowingly threatens ....," it "does not require that the State prove that the speaker intended to actually carry out the threat." Kilburn, 151 Wash.2d at 48, 84 P.3d 1215.
Hosier does allege that his notes were in jest or were idle talk. However, a reasonable person would foresee Hosier's notes, taken in the context of each other, as serious expressions of intent to inflict bodily harm. The trial court had before it sufficient evidence to find that Hosier engaged in criminal harassment when he placed notes at the cosmetology school and at Bartells.
III. Search Warrant
Hosier asserts that the search warrant issued for his residence failed to satisfy the constitutional particularity requirement, was stale, and did not establish a valid basis for believing relevant evidence would be found. He maintains that the trial court therefore erred in denying his motion for suppression.
"The fourth amendment[2] requires that an affidavit supporting a warrant establish probable cause." State v. Nordlund, 113 Wash.App. 171, 179, 53 P.3d 520 (2002). Probable cause in an affidavit supporting a search warrant is established "by setting forth facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal activity." State v. Huft, 106 Wash.2d 206, 209, 720 P.2d 838 (1986). The trial court is entitled to great deference in its probable cause determination. State v. Cord, 103 Wash.2d 361, 366, 693 P.2d 81 (1985). We review challenges to a search warrant for an abuse of discretion. Nordlund, 113 Wash.App. at 180, 53 P.3d 520.
Hosier first contends that the search warrant violated the particularity requirement. The fourth amendment's particularity requirement prevents general searches and "`the issuance of warrants on loose, vague, or doubtful bases of fact.' "Nordlund, 113 Wash.App. at 179-80, 53 P.3d 520 (quoting State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992)).
To satisfy the particularity requirement, the warrant must be sufficiently definite to allow the searching officer to identify the objects sought with reasonable certainty. The degree of required specificity turns on the circumstances and the type of items involved. A description is valid if it is as specific as the circumstances and the nature of the activity, or crime, under investigation permits.
Nordlund, 113 Wash.App. at 180, 53 P.3d 520 (Internal citations omitted.) Affidavits for search warrants are to be read in a commonsense rather than a hyper technical fashion. State v. Fisher, 96 Wash.2d 962, 965, 639 P.2d 743 (1982).
*225 The warrant issued for Hosier's residence authorized a search for:
(a) Any and all handwriting examples, correspondence, notes, diaries, financial records, checks, journals or other items where HOSIER's handwriting is displayed.
(b) Any and all writing materials to include but not limited by: notepads, scraps of paper, ledgers or like material.
(c) Any and all writing utensils with dark colored ink and "felt tipped" type or similarly designed markers.
(d) Any and all letters of occupancy identifying the occupant of the residence to be searched.
The following items were seized from Hosier's residence:
(1) briefcase containing papers, various blank papers, various ink pens & markers (some in containers)[,] (1) black vest containing rope, plastic ties, pens, etc., various pornographic magazines and photographs, childrens (sic) underwear, various notes and letters[,] wood board with writing[,] various notebooks, container of drug paraphernalia.
Hosier contends that there was no need for a warrant to locate samples of his handwriting because an expert had ascertained with sufficient accuracy that he was the author of the sexually explicit notes. Notwithstanding the expert's conclusion that Hosier authored the notes, the court had probable cause to issue an affidavit to obtain samples of Hosier's handwriting from his residence. The affidavit stated:
A court order may be requested to have HOSIER submit to handwriting exemplars, however suspects forced to display their handwriting in such a setting are prone to attempt to disguise their samples to avoid being named the author of the suspect script. Likewise, after a suspect was subjected to the exemplar process and knew that he was the focal point of the crime, he would likely destroy any/all evidence of the sought materials secreted in his home. Therefore, handwriting samples at HOSIER's home are sought in order to provide the most authentic representation of his handwriting for forensic examination by an expert in the field.
Hosier also asserts that there existed "no basis for believing that forensic evidence could tie a particular marker" to the notes he had written. The record supports the trial court's conclusion that there was probable cause to issue the warrant. Hosier provides no authority or evidence to support his assertion that forensic science would be unable to link the materials found in a search of his residence to the notes found at the Smith residence, the day care, or Bartells.
Hosier also contends that because "[n]umerous items not constituting writing utensils (sic) or materials, and therefore clearly outside the scope of the warrant, were seized and later used as evidence at trial," his motion to suppress all physical evidence and his statements should have been granted. But even if the rope and other items were illegally seized, the proper remedy is to sever these items from evidence seized pursuant to valid parts of the search warrant. "Under the severability doctrine, infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant but does not require suppression of anything seized pursuant to valid parts of the warrant." State v. Perrone, 119 Wash.2d 538, 556, 834 P.2d 611 (1992) (quoting in part United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.1983), cert. denied, 466 U.S. 950, 104 S. Ct. 2151, 80 L. Ed. 2d 538 (1984)). The trial court did not err in refusing to suppress all evidence seized under the warrant.
Hosier also argues that the police's seizure of items that were not writing implements and materials violated the particularity requirement. Hosier appears to refer to the underwear and rope among the materials which the police seized. Hosier does not deny that he wrote some of his notes on underwear. The underwear therefore constituted writing materials.
The police also seized a "vest containing rope, plastic ties, pens, etc." "[E]vidence not described in a valid search warrant but having [a] nexus with [the] crime under investigation *226 may be seized during [a] search." State v. Gonzales, 78 Wash.App. 976, 982, 900 P.2d 564 (1995) (citing United States v. Kane, 450 F.2d 77, 85 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S. Ct. 954, 30 L. Ed. 2d 810 (1972)). At least one of Hosier's notes explicitly referenced tying young girls up in order to engage in sexual acts with them. There thus was a nexus to the crime under investigation. The rope was legitimately seized as potential evidence that Hosier had intent to carry through with his threats.
Even if the seizure of the rope was invalid, and its admission therefore improper, its admission was harmless error. The record shows that the trial court relied upon the written notes and upon Hosiers oral statements, not the rope, to convict him. On this record, whether the rope is severed from other evidence obtained in the search, or offered as evidence, it is clear that it was harmless error because the remaining evidence and testimony standing alone supports Hosiers conviction.
Hosier also maintains that the search warrant was stale because there was a "5-week delay between the finding of the notes and the search of Hosier's home." Hosier's argument is merit less.
In State v. Smith, 60 Wash.App. 592, 602, 805 P.2d 256 (1991) this court explained in order for a warrant to be valid, there must be
[a] reasonable probability that criminal activity was occurring `at or about the time the warrant was issued.' State v. Higby, 26 Wash.App. 457, 460, 613 P.2d 1192 (1980). `Tabulation of the intervening number of days' is one of the factors to be considered, but is not controlling. Higby, supra at 460, 613 P.2d 1192. Other factors to be considered include the nature of the crime, the nature of the criminal, the character of the evidence to be seized, and the nature of the place to be searched. See 2 W. LaFave, section 3.7(a), at 77; Higby, supra.
In this case, the warrant to search Hosier's residence was issued on August 1, 2002, following the fifth, and final, incident leading to Hosier's arrest. The first of the five incidents occurred on May 2, 2002, when an employee at the day care found a pair of "little girl's panties," with Hosier's writing on them, stuck in the fence of the day care facility. On June 24, 2002, Mr. Smith, Hosier's neighbor, found two notes with sexual content written by Hosier on the grass in his yard. On July 15, 2002, the same teacher who had found the underwear on the fence of the day care facility on May 2, 2002, found a second pair of girl's underwear with sexual writing by Hosier on them on the day care's driveway. On July 29, 2002, a student at the cosmetology school found one of Hosier's notes in the school's designated smoking area. The final incident occurred on July 31, 2002, when an employee at Bartells found one of Hosier's notes near the cash register where one of the cosmetology school's female students worked. On August 1, 2002, the Everett police department obtained a search warrant for Hosier's residence. Thus, probable cause was not based on the incident occurring five weeks prior to the issuance of the search warrant, the two notes to M.S., as a single, isolated occurrence. Rather, the search warrant was based on five incidents over the course of approximately two months, and issued on the day after Hosier left a sexually explicit note at Bartells. Under these facts, Hosier' argument that the warrant was stale is baseless.
Affirmed.
WE CONCUR: COX, C.J, and AGID, J.
NOTES
[1] It is clear that this case did not involve payment for sexual acts.
[2] "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3066158/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY LEE GARCIA, No. 12-57302
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-08315-
MWF-VBK
GOOGLE, INC., a Delaware
Corporation; YOUTUBE, LLC, a
California limited liability company, ORDER
Defendants-Appellees,
and
NAKOULA BASSELEY NAKOULA, an
individual, AKA Sam Bacile; MARK
BASSELEY YOUSSEF; ABANOB
BASSELEY NAKOULA; MATTHEW
NEKOLA; AHMED HAMDY; AMAL
NADA; DANIEL K. CARESMAN;
KRITBAG DIFRAT; SOBHI BUSHRA;
ROBERT BACILY; NICOLA BACILY;
THOMAS J. TANAS; ERWIN
SALAMEH; YOUSSEFF M. BASSELEY;
MALID AHLAWI,
Defendants.
2 GARCIA V. GOOGLE
Filed March 14, 2014
Before: Sidney R. Thomas, Chief Judge
and En Banc Coordinator.
ORDER
A judge of this Court has made a sua sponte request for
a vote on whether to rehear en banc the panel’s order of
February 28, 2014 denying a stay of the panel’s prior orders,
as amended, directing Google and YouTube to remove
immediately all or part of a film entitled “Innocence of
Muslims” from its platforms worldwide and to prevent
further uploads.
Pursuant to General Order 5.5(b), a vote of the non-
recused active judges was conducted as to whether to rehear
the panel order en banc. A majority of the non-recused active
judges did not vote in favor of rehearing en banc.
Therefore, pursuant to General Order 5.5(c), the panel
shall resume control of the case. Any further proceedings as
to the panel opinion, including any petitions for rehearing and
rehearing en banc, will be considered separately. | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2761751/ | Cite as 2014 Ark. App. 726
ARKANSAS COURT OF APPEALS
DIVISIONS I, II & IV
No. CR-14-210
Opinion Delivered December 17, 2014
JIMMY PAUL PICKLE APPEAL FROM THE CRAIGHEAD
APPELLANT COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[No. CR-2013-115]
V.
HONORABLE CINDY THYER, JUDGE
STATE OF ARKANSAS
APPELLEE REVERSED and REMANDED
LARRY D. VAUGHT, Judge
Jimmy Paul Pickle appeals from the Craighead County Circuit Court’s denial of his
motion to suppress evidence obtained when two Arkansas Game and Fish officers (“game
wardens”) conducted a warrantless, suspicionless hunting-compliance check on Pickle’s duck-
hunting party. Pickle argues that the game wardens unlawfully detained and unlawfully searched
him. The State argues that (1) there was no seizure implicating the Fourth Amendment, (2)
Pickle had no reasonable expectation of privacy under the open-fields doctrine, and (3) Pickle
had no reasonable expectation of privacy as to his identity. Alternatively, the State argues that
reasonable suspicion is not required in order for game wardens to conduct routine hunting-
compliance checks. The Arkansas Game and Fish Commission has also filed an amicus curiae
brief arguing that warrantless, suspicionless hunting-compliance checks are necessary tools for
game wardens, who would not otherwise be able to enforce state and federal regulations.
Cite as 2014 Ark. App. 726
We disagree with the State’s first three arguments. This case involves a seizure implicating
the protections of the Fourth Amendment; the open-fields doctrine does not apply, and there
is no legal authority exempting identity from the protections of the Fourth Amendment. As for
whether reasonable suspicion is required for routine hunting-compliance checks, controlling
precedent mandates that, in the absence of reasonable suspicion, law-enforcement activity must
be governed by a plan of explicit, neutral limitations that prevent game wardens from exercising
unbridled discretion. Because the circuit court’s order is silent on this key element, we reverse
and remand.
I. Facts
At the suppression hearing, the facts revealed that on November 18, 2012, Pickle, a
friend, and the friend’s minor son were duck hunting on an oxbow lake along the Cache River
in Craighead County, Arkansas. There is no dispute that the party was hunting in an allowed
location, during duck season, and within permissible hunting hours. Two game wardens, Jeff
McMullin and Brian Aston, were assigned to the area, patrolling for potential hunting violations.
The game wardens testified that they observed Pickle’s hunting party for approximately two
hours, but saw nothing to indicate any violations of law. They then made contact with Pickle and
his fellow hunters in order to perform a routine hunting-compliance check, which involved
verification of hunting licenses and searches for and examination of firearms, ammunition, and
game. Pickle and his two companions were not actively hunting at the time; they were cooking
breakfast at a campsite, with their firearms resting against nearby trees. The game wardens
approached the group, identified themselves, and demanded to see the hunters’ licenses. Pickle
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identified himself and told the game wardens that he had a valid license but that he had left it
in his truck. The game wardens then picked up and examined each gun in turn, asking the group
to identify the owner of each firearm. Pickle identified one of the guns as belonging to him, and
it was found to be in compliance with all relevant regulations. As part of the routine hunting-
compliance check, the game wardens also searched the group for ammunition or game that
violated state of federal law. Pickle’s friend was issued a citation for a firearm violation. The
minor child was given a warning about an ammunition violation.
Because Pickle indicated that he had a valid hunting license but did not have it on his
person, the game wardens then retreated a short distance and called dispatch in Little Rock to
verify his license. The game wardens first ran a 10-26 Hunting and Fishing License check, which
confirmed that Pickle did have a valid license. They then ran a 10-51 outstanding-warrants
check, which revealed that Pickle was a convicted felon. The game wardens returned to the
hunting party, arrested Pickle for being a felon in possession of a firearm, and conducted a
search incident to arrest, which revealed a small amount of methamphetamine and a glass pipe
used for smoking methamphetamine. Pickle was charged with felon in possession of a firearm,
possession of a controlled substance, and possession of drug paraphernalia.
In a motion to suppress and subsequent hearing, Pickle argued that the game wardens
violated his rights under the Fourth Amendment to the United States Constitution and article
2, section 15, of the Arkansas Constitution by unlawfully detaining him and unlawfully searching
him without reasonable suspicion. The circuit court took the issue under advisement and issued
an order on September 9, 2013, denying the motion to suppress. Pickle then entered a
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conditional guilty plea, preserving his right to appeal the denial of the motion to suppress, and
the circuit court accepted the plea. The circuit court placed Pickle on sixty months’ probation
and ordered him to pay fines and costs. Pickle filed a timely notice of appeal.
II. Standard of Review
The proponent of a motion to suppress evidence bears the burden of demonstrating the
basis for suppression. Norman v. State, 326 Ark. 210, 214, 931 S.W.2d 96, 99 (1996). In reviewing
the denial of a motion to suppress evidence in a criminal proceeding, we make an independent
examination based on the totality of the circumstances, reviewing findings of historical fact for
clear error and determining whether those facts give rise to reasonable suspicion or probable
cause. Yarbrough v. State, 370 Ark. 31, 36, 257 S.W.3d 50, 55 (2007). We give due weight to
inferences drawn by the circuit court and deference to the circuit court’s findings, and we will
reverse the circuit court only if the denial of the motion to suppress was clearly against a
preponderance of the evidence. Id., 257 S.W.3d at 55. Moreover, we defer to the circuit court
in assessing the credibility of witnesses. Bogard v. State, 88 Ark. App. 214, 219, 197 S.W.3d 1, 3
(2004).
III. Discussion
Pickle argues that he was unlawfully detained and unlawfully searched, in violation of his
rights under the Fourth Amendment to the United States Constitution and article 2, section 15
of the Arkansas Constitution because the game wardens had neither a warrant nor a reasonable
suspicion of any violation of law. Both constitutional provisions provide essentially identical
protection from unreasonable and arbitrary seizures and searches. Additionally, the Arkansas
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Rules of Criminal Procedure restrict law enforcement’s ability to detain or search members of
the public. See, e.g., Ark. R. Crim. P. 2.2 & 3.1 (2014). There is no dispute that Arkansas Game
and Fish officers are certified law enforcement officers. There is also no dispute that the game
wardens in this case lacked any reasonable suspicion that Pickle or his companions were engaged
in criminal conduct. The issue presented on appeal is whether game wardens are subject to the
same constitutional restrictions as traditional law-enforcement officers. However, before
reaching that question, we must first address three preliminary arguments presented by the State
as to why the protections of the Fourth Amendment are not implicated in this case.
First, we hold that the game wardens’ initial contact with Pickle, during which he
identified himself and identified his gun, was a seizure implicating the protections of the Fourth
Amendment or article 2, section 15. “A ‘seizure’ occurs when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen.” Thompson v. State,
303 Ark. 407, 409, 797 S.W.2d 450, 451 (1990). The State argues that this situation is more akin
to one in which “an officer merely approaches an individual on the street and asks if he is willing
to answer some questions.” Cockrell v. State, 2010 Ark. 258, at 17, 370 S.W.3d 197, 207 (citing
Thompson, 303 Ark. at 409, 797 S.W.2d at 451–52). Under Cockrell and Thompson, such an
encounter is not deemed to be a seizure “because it is in a public place and it is consensual.” Id.
However, in State v. Allen, 2013 Ark. 35, at 4, 425 S.W.3d 753, 757, the Arkansas Supreme Court
found that a game warden’s actions in stopping a watercraft on Lake Hamilton and boarding it
briefly to conduct a safety check constituted a seizure. The State attempts to distinguish Allen
by arguing that, although Allen would not have felt free to leave while a game warden was
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aboard his boat, Pickle was free to leave at all times prior to his arrest and was under no
obligation to comply with the game wardens’ requests. We disagree.
Although Pickle was not physically restrained or threatened with arrest if he refused to
comply, the encounter went beyond that allowable under Rule 2.2, Cockrell, and Thompson. Rule
2.2 of the Arkansas Rules of Civil Procedure states:
(a) A law enforcement officer may request any person to furnish information
or otherwise cooperate in the investigation or prevention of crime. The
officer may request the person to respond to questions, to appear at a police
station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall
indicate that a person is legally obligated to furnish information or to
otherwise cooperate if no such legal obligation exists. Compliance with the
request for information or other cooperation hereunder shall not be regarded
as involuntary or coerced solely on the ground that such a request was made
by a law enforcement officer.
Ark. R. Crim. P. 2.2 (2011). The circuit court admitted into evidence the Arkansas Hunting
Guidebook, a copy of which is available to everyone at local sporting goods stores and online,
which was presented by the prosecutor as evidence of Pickle’s reasonable expectation of privacy
in the hunting context. The Arkansas Hunting Guidebook clearly states that “it is not legal to”
“refuse an officer’s lawful request to inspect your wildlife, tackle, hunting equipment, devices,
license, or any item that can reasonably contain wildlife” or “interfere with an officer performing
their duties or flee from an officer.” Arkansas Game and Fish Commission Hunting Guidebook 18
(2012-13). Therefore, we cannot agree that Pickle would have felt free to leave at any time prior
to his arrest. As a result, the encounter at issue here, during which the game wardens obtained
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Pickle’s name and asked him to identify his firearm, was a “seizure” under the Fourth
Amendment and article 2, section 15.
Second, we reject the State’s argument that Pickle did not have any reasonable
expectation of privacy because he was in an open field. While the State correctly articulates the
open-fields doctrine, which holds that a person has no reasonable expectation of privacy in open
lands or fields, the doctrine is inapplicable here. See, e.g., Hudspeth v. State, 349 Ark. 315, 322–23,
78 S.W.3d 99, 104 (2002). The open-fields doctrine applies to searches outside a property-
owner’s home or curtilage, on land visible to others, where the owner has no expectation of
privacy. Id., 78 S.W.3d at 104. It does not stand for the much broader proposition that an officer
may detain and search a person simply because he happens to be standing in an open field.
Third, we reject the State’s argument that Pickle had no reasonable expectation of privacy
in his identity. Citing Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185 (2004)
(stating that “in the ordinary course a police officer is free to ask a person for identification
without implicating the Fourth Amendment”) and Fowler v. State, 2010 Ark. 431, at 2–4, 371
S.W.3d 677, 680–81 (stating that officers may ask an individual to approach their vehicle and
give his name even absent reasonable suspicion), the State argues that because the game
wardens’ initial stop produced no prejudicial information or evidence against Pickle other than
his name, the Fourth Amendment and article 2, section 15 do not apply. However, the State’s
reliance on Hiibel and Fowler is misplaced because both cases involved reasonable suspicion of
a crime prior to law enforcement’s initial contact with the defendant. As discussed above, Rule
2.2 allows officers to request that a person voluntarily provide identification or answer questions.
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However, neither case establishes the broader rule that police officers may demand an individual’s
name or identification absent reasonable suspicion. As discussed above, a reasonable person in
Pickle’s circumstances would not have believed himself to be free to refuse the game warden’s
requests or terminate the encounter. Without reasonable suspicion, neither Hiibel nor Fowler
provide authority for the game wardens’ detention and search of Pickle.
Having established that none of the State’s preliminary arguments provide a basis to
affirm, we turn to the key inquiry in this case: whether game wardens must have reasonable
suspicion in order to legally conduct routine hunting-compliance checks. The State urges the
Court to follow Louisiana, Minnesota, and Montana in holding that game wardens may routinely
conduct warrantless, suspicionless hunting-compliance checks without violating the Fourth
Amendment. See State v. McHughes, 630 So. 2d 1259 (La. 1994); State v. Colosimo, 669 N.W.2d 1
(Minn. 2003); State v. Boyer, 308 Mont. 276 (2002). The circuit court adopted the rationale
presented in these cases and found that,
Hunters and fishermen who elect to participate in those specialized activities do
so with the understanding that everything from the guns they may use, the
ammunition they may use, the amount and kind of waterfowl or fish they may kill
or catch, the time when they may hunt or fish, and most everything else about
their activity is regulated by the state.
Therefore, the circuit court reasoned, hunters like Pickle have no reasonable expectation of
privacy as to game wardens’ hunting-related inquiries. Alternatively, the circuit court stated that,
even if a reduced expectation of privacy existed, the game wardens’ actions did not violate
Pickle’s rights because the State’s interests in conducting routine hunting-compliance checks are
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sufficiently compelling, they cannot be achieved through less restrictive means, and the intrusion
on Pickle was slight.
We cannot affirm the circuit court’s determination that reasonable suspicion is not
required for routine hunting-compliance checks because both Arkansas and federal law are
exceedingly clear that, in those rare instances in which reasonable suspicion is not required, a
different sort of safeguard must be in place: the stop or search must be conducted under a plan
of explicit, neutral limitations that prevent the officers from exercising unbridled discretion.
Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757; Delaware v. Prouse, 440 U.S. 648, 661 (1979) (holding
that “except in those situations in which there is at least articulable and reasonable suspicion .
. . stopping an automobile and detaining the driver in order to check his driver’s license and
registration . . . are unreasonable under the Fourth Amendment. This holding does not preclude
the State . . . from developing methods for spot checks that involve less intrusion or that do not
involve the unconstrained exercise of discretion”) (emphasis added). The explicit, neutral limitations-test
is a necessary second prong of analysis in cases where reasonable suspicion is not required. Allen,
2013 Ark. 35, at 4, 425 S.W.3d at 757; Prouse, 440 U.S. 648, 661 (1979).
In Prouse, the United States Supreme Court struck down Delaware’s use of suspicionless
automobile “spot checks,” stating that “the ‘grave danger’ of abuse of discretion does not
disappear simply because the automobile is subject to state regulation resulting in numerous
instances of police-citizen contact.” Prouse, 440 U.S. at 662. The Court specifically stated that,
“given the alternative mechanisms available, both those in use and those that might be adopted,”
such as permissible roadblock-style stops, Delaware’s use of standardless, unconstrained
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individual vehicle stops unconstitutionally permitted officers to base such stops upon their own
“unbridled discretion.” Id. In Allen, the Arkansas Supreme Court applied the explicit, neutral
limitations-test to a suspicionless stop by a game warden, finding a Fourth Amendment violation
because the game warden relied solely upon his own discretion rather than the type of explicit,
neutral limitations required in Prouse. Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757.
At the suppression hearing and on appeal, Pickle has repeatedly argued that exempting
game wardens from the reasonable-suspicion requirement would allow unfettered discretion to
make random stops based solely on the game warden’s will or discretion. Although the State
referred to both Prouse and Allen throughout its brief, it never attempted to articulate the explicit,
neutral limitations that apply to routine hunting-compliance checks. Despite the fact that the
Arkansas Hunter’s Guidebook and relevant federal regulations were introduced at the hearing
and both officers took the stand to testify, neither the State nor the circuit court specifically
addressed whether current hunting laws and regulations, or possibly internal AGFC policies and
procedures, provided the type of explicit, neutral limitations required by Prouse and Allen. The
record is simply silent on this issue.
In fact, this case presents the same problems that required suppression in Allen. In Allen,
a game warden stopped a boat on Lake Hamilton in order to conduct a warrentless,
suspicionless safety-compliance check for items such as life jackets. Allen, 2013 Ark. 35, at 1, 425
S.W.3d at 755. Although no violations had been observed before the stop, the game warden
boarded the boat, conducted a search, determined that the operator had been drinking, and
charged him with boating while intoxicated. Id., 425 S.W.3d at 755. The Arkansas Supreme
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Court affirmed the circuit court’s decision to suppress the evidence because the game warden
lacked any legal basis for the stop and search, and the stop was not pursuant to a plan that placed
explicit, neutral limitations on the game warden’s conduct. 2013 Ark. 35, at 4, 425 S.W.3d at 757.
For example, the court noted that the game warden tried to stop as many vessels as he could
during each shift, but there were no explicit, neutral criteria for determining which boats to stop.
Id., 425 S.W.3d at 757.
Here, the game wardens also testified that they attempted to conduct as many hunting-
compliance checks as possible, but there is no evidence to suggest that anything other than their
own unbridled discretion determined who would be stopped. Likewise, the game wardens in this
case appear to have gone beyond the scope of a routine hunting-compliance check when they
chose to run an outstanding-warrants check on Pickle and discovered that he was a convicted
felon. Officer Ashton testified that it was his own personal protocol to run such a check when
a hunter did not have his hunting license in his physical possession. The record is silent on
whether the warrants check was part of any explicit plan or policy governing the conduct of
AGFC officers, or whether the game wardens in this case were doing exactly what the Allen and
Prouse courts feared: exercising unbridled discretion.
Because the circuit court’s order denying Pickle’s motion to suppress fails to address a
necessary prong of analysis, we hold that the decision was against the preponderance of the
evidence. Without a finding that the game wardens acted pursuant to a sufficient plan of explicit,
neutral limitations, we must hold that the stop and search violated Pickle’s rights under the
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Fourth Amendment and article 2, section 15. Accordingly, we reverse the circuit court’s denial
of Pickle’s motion to suppress.
Reversed and remanded.
PITTMAN, WYNNE, and WHITEAKER, JJ., agree.
GRUBER and BROWN, JJ., concur.
GLADWIN, C.J., and WALMSLEY and GLOVER, JJ., dissent.
WAYMOND M. BROWN, Judge, concurring. I agree with the majority that this
case should be reversed and remanded. I write separately to express my belief that game
wardens may perform hunting-and-safety compliance checks without reasonable suspicion or
explicit, neutral limitations. However, I believe that after a compliance check has been
completed, any additional encounter must be based upon an explicit, neutral limitation as
required by State v. Allen,1 in order to prevent game wardens from relying on their own
unbridled discretion. Therefore, I concur.
GRUBER, J., joins in this concurrence.
ROBERT J. GLADWIN, Chief Judge, dissenting. In this case, the game and fish
officers used neutral limitations in their contact with the appellant. Therefore, the ultimate
search incident to arrest was constitutionally permissible. I would affirm, thus I respectfully
dissent.
1
2013 Ark. 35, 425 S.W.3d 753.
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The primary authority cited by appellant in support of his argument is the Fourth
Amendment to the United States Constitution, the language of which is mirrored in article
2, section 15, of the Arkansas Constitution, stating:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
These constitutional guarantees provide fundamental protection to all citizens from
unreasonable and arbitrary searches. Furthermore, Arkansas law places restrictions on a law-
enforcement officer’s ability to lawfully stop and detain citizens. Ark. R. Crim. P. 3.1
(2014). These long-established and well-recognized legal principles also apply to Arkansas
Game and Fish officers. See State v. Allen, 2013 Ark. 35, 425 S.W.3d 753.
The question presented is whether AGFC officers are subject to the same legal
standards that all other law-enforcement officers are bound to follow before detaining a
citizen while engaged in a hunting activity. If so, appellant claims that there is no legal or
factual justification for the AGFC officers’ actions in this case, which requires this case to be
reversed and appellant’s conditional plea set aside.
The circuit court recognized that the United States Supreme Court has held that a
random investigative stop of a vehicle is impermissible. See Delaware v. Prouse, 440 U.S. 648
(1979) (holding that except in situations in which there is at least articulable and reasonable
suspicion that a motorist is unlicensed or that an automobile is not registered, or that either
the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an
automobile and detaining the driver in order to check his driver’s license and the registration
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of the automobile are unreasonable under the Fourth Amendment). The Court balanced the
permissibility of the law-enforcement intrusion on an individual’s Fourth Amendment
interest against its promotion of legitimate governmental interest, holding that because of the
alternative mechanisms available, including the foremost method of enforcing traffic and
vehicle-safety regulations through the observation of violations, the incremental contribution
to the governmental interest of highway safety gained from the random spot checks did not
justify the practice under the Fourth Amendment. Id.; see also United States v. Brignoni-Ponce,
422 U.S. 873 (1975). However, the circuit court held that a person who engages in hunting
is subject to random stops, checks, and searches by game wardens.
The circuit court’s holding acknowledges Justice Blackmun’s concurrence in Prouse,
supra, in which he stated:
The Court, ante, this page, carefully protects from the reach of its decision other less
intrusive spot checks “that do not involve the unconstrained exercise of discretion.”
The roadblock stop for all traffic is given as an example. I necessarily assume that the
Court’s reservation also includes other not purely random stops (such as every 10th
car to pass a given point) that equate with, but are less intrusive than, a 100%
roadblock stop. And I would not regard the present case as a precedent that throws
any constitutional shadow upon the necessarily somewhat individualized and perhaps
largely random examinations by game wardens in the performance of their duties. In
a situation of that type, it seems to me, the Court’s balancing process, and the value
factors under consideration, would be quite different.
Prouse, 440 U.S. at 663–64 (Blackmun, J., concurring specially).
The majority holds that Prouse and Allen require the court to suppress the evidence
because the AGFC officers had no reasonable suspicion to detain and search appellant and
that the search was not pursuant to a plan embodying explicit neutral limitations. I agree that
the AGFC officers had no reasonable suspicion that a violation had occurred and
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acknowledge that appellant was not free to leave and was thus seized. However, the AGFC
officers did have neutral criteria that supports the search. Further, our balancing process
weighs in favor of the limited intrusion upon appellant.
Prouse and Allen are distinguishable from this case, as both are stop-and-search cases
involving vehicles. Hunting is a highly-regulated activity that can be efficiently enforced
only with this type of enforcement, above and beyond the admittedly regulated activity of
driving an automobile or water craft. The majority holds that controlling precedent requires
AGFC officers’ actions to be either (1) based upon reasonable suspicion, or (2) pursuant to
a plan embodying explicit neutral limitations. If reasonable suspicion is not required, the
second prong must be met. In Allen, the Arkansas Supreme Court stated that,
The Fourth Amendment requires that a seizure must be based on specific objective
facts indicating society’s legitimate interests require the seizure of the particular
individual, or that the seizure must be carried out pursuant to a plan embodying
explicit neutral limitations on the conduct of the individual officer.
2013 Ark. 35, at 4, 425 S.W.3d at 757 (quoting Brown v. Texas, 443 U.S. 47, 50 (1979)).
Despite the contention that the State has failed to present any evidence or argument
demonstrating that the AGFC officers acted pursuant to such a plan or policy, I disagree that
this case poses the same concerns regarding unbridled discretion that mandated the outcome
in Allen. As aptly noted by the circuit court in its order denying appellant’s motion to
suppress:
[Appellant] asserts that the outcome of this case is controlled by the Arkansas Supreme
Court’s recent opinion in State v. Allen, which involved a suspicionless stop of a boat
for the purpose of conducting a safety check. However, the facts of Allen are
distinguishable from the facts of the case at bar. Factually, even though a game and
fish officer was involved in the encounter with Mr. Allen, there is no indication in
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the opinion that Mr. Allen was engaging in the type of fishing activity governed by
Arkansas statutes and regulation or that the officer was attempting to conduct an
inspection of a fisherman’s catch as was the instance in Colosimo. Rather, in Allen, the
officer was attempting to conduct an inspection “for life jackets and other safety items
that they [boat owners] are required to have on their vessel.” The court in Allen
reached a conclusion based upon an expectation of privacy is involved. The analysis
at issue in Allen has specifically been rejected in cases involving the highly regulated
activities of hunting and fishing.
In Prouse, supra, the United States Supreme Court held that, in those rare instances
where the Fourth Amendment allows intrusions absent individualized, articulable suspicion,
law enforcement activities must be undertaken pursuant to specified “neutral criteria” rather
than “standardless and unconstrained discretion.” Prouse, 440 U.S. at 661. The Court, in
Prouse, specifically stated that, “given the alternative mechanisms available, both those in use
and those that might be adopted,” such as permissible roadblock-style stops, Delaware’s use
of standardless, unconstrained individual vehicle stops unconstitutionally permitted officers
to base such stops upon their own “unbridled discretion.” Id. Likewise, in Allen, the
Arkansas Supreme Court applied the “explicit, neutral limitations” test to a suspicionless stop
by finding a Fourth Amendment violation because the game warden relied solely upon his
own discretion rather than the type of explicit, neutral limitations required in Prouse.
The Arkansas Hunting Guidebook, a copy of which is available to everyone at local
sporting-goods stores and online, was presented by the State as evidence of appellant’s
reasonable expectation of privacy in the hunting context. The Arkansas Hunting Guidebook
clearly states that “it is not legal to” “refuse an officer’s lawful request to inspect your wildlife,
tackle, hunting equipment, devices, license, or any item that can reasonably contain wildlife”
or “interfere with an officer performing their duties or flee from an officer.” Arkansas Code
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Annotated section 15-43-104 (Repl. 2009) provides that “[a]ll game and fish except fish in
private ponds found in the limits of this state are declared to be the property of this state. The
hunting, killing, and catching of the game and fish are declared to be privileges.” Section
15-43-105(a) (Repl. 2009) covers related prima facie evidentiary matters and provides:
(a) The possession of firearms in fields, forests, along streams, or in any location
known to be game cover shall be considered prima facie evidence that the possessor
is hunting.
These statutes and current rules of the AGFC form the very framework for the
“explicit, neutral limitations” test in this case. Appellant’s hunting party was not merely a
group of individuals walking around on open public property. Appellant’s shotgun was in
plain view resting on a tree, along with two other guns, in a permissible hunting location,
during regular duck-hunting season, and within allowed hunting hours, consistent with
section 15-43-105(a). Based on that information, the AGFC officers approached appellant’s
hunting party and asked to check their identification, licenses, guns, and bags that might
contain game. From that minimal amount of information, Officer Aston checked with
NCIC to see if appellant had any outstanding warrants, and, at that point, discovered that he
was a convicted felon. The methamphetamine and drug paraphernalia were found by Officer
Aston in a search incident to appellant’s arrest, pursuant to Arkansas Rule of Criminal
Procedure 12.1 (2013), for being a felon in possession of a firearm. State v. Henry, 304 Ark.
339, 802 S.W.2d 448 (1991).
Although the United States Supreme Court has not further elaborated on the
constitutionality of suspicionless hunting-compliance checks to date, other states that have
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considered the issue overwhelmingly have upheld these checks against constitutional
challenges. Several states, specifically Louisiana, Minnesota, and Montana, have concluded
that no reasonable expectation of privacy exists in the hunting and fishing context and have
given broad powers to game and fish officers to conduct such searches without the limitations
of the Fourth Amendment. See State v. Colosimo, 669 N.W.2d 1 (Minn. 2003); State v. Boyer,
308 Mont. 276 (2002); State v. McHugh, 630 So. 2d 1259 (La. 1994). In Colosimo, the
Minnesota Supreme Court held that, because fishing is a largely recreational privilege that
anglers choose to engage in with knowledge of the regulations governing their conduct, an
expectation of privacy in all parts of an open boat or other conveyance, admittedly used to
transport fish, is not reasonable. See also Boyer, supra (holding that engaging in this highly
regulated activity requires anglers to assume the burdens of the sport as well as its benefits,
and thus no objectively reasonable expectation of privacy exists when a wildlife-enforcement
officer checks for hunting and fishing licenses in open season near game habitat, inquires
about game taken, and requests to inspect game in the field.). In Arkansas, like in Minnesota,
see Colosimo, supra, and Montana, see Boyer, supra, hunters must assume the burdens of
hunting as well as the benefits.
Compliance checks such as the one by the AGFC officers in the present case are
essential to the AGFC’s stated purpose:
The control, management, restoration, conservation and regulation of birds, fish,
game, and wildlife resources of the State, including hatcheries, sanctuaries, refuges,
reservations and all property now owned or used for said purposes and the acquisition
and establishment of same, [and] the administration of the laws now and/or hereafter
pertaining thereto[.]
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Ark. Const., amend. 35, § 1. And, the authority to “regulate bag limits and the manner of
taking game and fish and furbearing animals” and “fix penalties for violations” has been
vested in the AGFC by amendment 35, § 8, and is codified at Arkansas Code Annotated
§ 15-41-203 (Repl. 2009). The highly dangerous and regulated nature of hunting and
fishing demands compliance checks, including questioning and checking of hunting and
fishing equipment and licenses, even though similar actions might not be reasonable outside
the hunting and fishing context.
In the alternative, even if hunters enjoy any expectation of privacy at all, then that
expectation is greatly diminished. In People v. Maikhio, 253 P.3d 247, 259 (2011), the
California Supreme Court held hunting-compliance checks reasonable under balancing tests
modified from that used in non-hunting cases like Prouse, supra, and Brignoni-Ponce, supra.
The Maikhio court relied on the factors that the United States Supreme Court in New York
v. Burger, 482 U.S. 691, 702–03 (1987), used for special needs and administrative-inspection
cases, and applied them in the hunting context:
Balancing the importance and strength of the state’s interest and the need for
the suspicionless stop and demand procedure against the limited impingement upon
privacy resulting from that procedure, we conclude that the Fourth Amendment does
not preclude a state from authorizing a game warden to briefly stop a person the
warden encounters on a pier, in a boat, or in the field, who the warden reasonably
believes has recently been fishing or hunting, to demand that the person display all
fish or game that he or she has caught or taken, even in the absence of reasonable
suspicion that the person has violated a fish and game statute or regulation.
Maikhio, 253 P.3d at 262–63.
Applying the factors considered in Maikhio to the hunting-compliance inspection in
this case, there is clearly a compelling interest beyond mere law enforcement—the State’s
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control, management, restoration, conservation and regulation of birds, fish, game and
wildlife resources—an interest entrusted to the AGFC by amendment 35 to the Arkansas
Constitution, property laws, and regulations that recognize the paramount importance of
these invaluable natural resources. The Arkansas Constitution perpetuates a public-trust
doctrine requiring AGFC to control, manage, restore, conserve, and regulate the wildlife
resources of the State. Ark. Code Ann. § 15-43-104; see also Lewis v. State, 110 Ark. 204,
161 S.W. 154 (1913) (holding that the fish and game of the state, ferae naturae, belong to the
whole people of the state collectively). Wildlife is owned by the State and not subject to
private appropriation except when done under regulations that protect the general interest.
See State v. Mallory, 73 Ark. 248, 83 S.W. 959 (1904).
AGFC has a special governmental need outside the ordinary law-enforcement context
to have its wildlife officers stop hunters and fishers near game and fish habitat, check for
hunting and fishing licenses, inquire about game and fish taken, request to inspect game and
fish in field possession, and request to inspect killing devices and hunting and fishing tackle.
In this capacity, the AGFC officers act not only as law enforcers but also as public trustees
protecting, conserving, and promoting conservation of the wildlife of the State by (1)
protecting the State’s wildlife resources from those who violate regulations promulgated for
the sound management and conservation of the resource and (2) serving as front-line
gatherers of information necessary for the intelligent formation and revision of laws,
regulations, and policies affecting and regulating seasons, limits, management areas, food
chains, and other factors related to the management and conservation of the wildlife.
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Such an inspection by an AGFC officer for compliance with AGFC’s regulations
involves only a few questions and a brief detention usually of no more than two or three
minutes, which is consistent with the AGFC officer’s constitutional and statutory duties and
falls far short of being analogous to an arrest. A check for a hunting license, coupled with
a question about game, is easily standardized and minimally invasive. The potential
interference with the activities of legitimate hunters and fishers is minimal, and the impact
on the larger non-hunting and non-fishing segment of the populace is almost nonexistent.
The impact in this case consisted of a twenty-minute conversation and inspection of
licenses and weapons for compliance with state and federal hunting regulations. It occurred
during hunting season on known hunting land and did not involve the stop of a vehicle or
vessel. Rather, appellant’s hunting party was approached by foot in the area where they were
hunting only after it was confirmed that they were engaged in hunting. Thus, the scope of
the encounter was limited only to those practicing the highly-regulated sport of hunting.
Finally, as Officer Aston testified, state and federal hunting regulations could not be
adequately enforced if he was able to conduct inspections only after developing reasonable
suspicion that a violation had occurred. Accordingly, in balancing a hunter’s diminished
expectation of privacy with the State’s heightened interest in protecting Arkansas’s wildlife,
it is not unreasonable for an AGFC officer to perform a compliance check on someone who
is hunting in the absence of reasonable suspicion that the person has violated a game statute
or regulation.
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The circuit court in this case correctly rejected appellant’s reliance on Allen because
the only commonality between that case and this one is the involvement of an AGFC officer.
The officer in Allen did not merely approach Allen to ask some questions, but stopped and
boarded his boat for a safety check. There was no indication that Allen was engaged in the
practice of hunting or fishing, in which situations state and federal regulations would apply
and the need to check for compliance with those regulations would arise. As the court in
Allen held, the random stopping and boarding of a boat in that context is analogous to
randomly stopping a vehicle without articulable suspicion of illegal activity. A check of
someone who is fishing or hunting to inquire about that person’s compliance with state and
federal hunting or fishing regulations is not so random. Consequently, Allen is inapposite to
this case. If this court looks to other cases, such as Maikhio, that have analyzed the
constitutionality of hunting-compliance checks, it is clear that, even assuming, arguendo, that
the Fourth Amendment and article 2, section 15, of the Arkansas Constitution are implicated
in the sport of hunting, a compliance check does not infringe upon those rights.
WALMSLEY and GLOVER, JJ., join.
Miller Law Firm, by: Randel Miller, for appellant.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
James F. Goodhart, John P. Marks, Jennifer R. Jameson McKendree, and Christian N. Parks,
Arkansas Game and Fish Commission, amicus curiae in support of appellee.
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-222
Opinion Delivered December 17, 2014
AKEEM ALLAJOWUAN LEWIS APPEAL FROM THE
APPELLANT INDEPENDENCE COUNTY
CIRCUIT COURT
V. [NO. CR-13-139]
HONORABLE JOHN DAN KEMP,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED
KENNETH S. HIXSON, Judge
After a jury trial in Independence County Circuit Court, appellant Akeem Allajowuan
Lewis was convicted of two counts of second-degree murder in the shooting deaths of John
L. Weeams and Omar Scales. Appellant was sentenced to consecutive eight- and twenty-year
prison terms, respectively. On appeal, appellant argues (1) that the State failed to negate his
justification defense, and (2) that the trial court abused its discretion in running his sentences
consecutively instead of concurrently. We affirm.
Appellant’s criminal charges were the result of a shootout between John L. Weeams
and appellant. The shootout happened at a night-time gathering on July 6, 2013, at Bennie
Dodd’s residence located at 295 Dry Run Circle in Batesville, Arkansas. Appellant concedes
on appeal that he shot both victims, although shooting Omar Scales was accidental because
Scales was an innocent bystander. Appellant’s first argument is that he raised the defense of
Cite as 2014 Ark. App. 730
justification and that the State failed to carry its burden to disprove that defense beyond a
reasonable doubt. We disagree with his argument.
Justification becomes a defense when any evidence tending to support its existence
is offered, and once raised, it becomes an element that must be disproved by the State
beyond a reasonable doubt. Green v. State, 2011 Ark. App. 700. Whether one is justified
is largely a matter of the defendant’s intent and is generally a fact question for the jury. Id.
A defendant’s intent is ordinarily not subject to proof by direct evidence but must usually be
established by circumstantial evidence. Id. Critical to this inquiry is the reasonableness of
the accused’s apprehension that he was in danger of death or of suffering great bodily harm.
Id. Also critical is whether the accused used all reasonable means within his power and
consistent with his personal safety to avoid the use of deadly force. Id; see also Ark. Code
Ann. § 5-2-607 (Repl. 2006).
As requested by defense counsel, the jury was instructed on the justification defense
as to the murder of Weeams1 based on Arkansas Model Jury Instruction–Criminal 705:
Akeem Lewis asserts as a defense to the charge of second degree murder that deadly
physical force was necessary to defend himself. This is a defense only if; First, Akeem
Lewis reasonably believed that John Weeams was committing or was using or about
to use unlawful deadly physical force; And second, Akeem Lewis only used such force
as he reasonably believed to be necessary.
A person is not justified in using deadly physical force if he knows that the use of
deadly physical force can be avoided with complete safety by retreating. However, he
is not required to retreat if he was not the original aggressor.
1
Defense counsel did not request a justification defense instruction with regard to the
murder of Scales. The jury was, consequently, not asked to consider justification as to that
count of second-degree murder.
2
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Akeem Lewis is asserting this defense and is required only to raise a reasonable doubt
in your minds. . . . Reasonably believes or reasonable belief means the belief that an
ordinary, prudent man would form under the circumstances in question and one not
recklessly or negligently formed.
When reviewing the sufficiency of the State’s negation of a justification defense, the
appellate court employs a substantial-evidence standard of review. Jones v. State, 2011 Ark.
App. 92. Substantial evidence is evidence that is forceful enough to compel a conclusion
beyond suspicion and conjecture. Id. We view the evidence in the light most favorable to
the State and consider only the evidence that supports the verdict. Id. We will not reverse
the jury’s decision in rejecting a justification defense unless the verdict required speculation
and conjecture. Moody v. State, 2014 Ark. App. 538. The jury, not our court on appeal,
weighs the evidence and judges credibility of witnesses. Id. The fact-finder is not required
to set aside common sense and need not view each fact in isolation, but rather considers the
evidence as a whole. Williams v. State, 96 Ark. App. 277, 241 S.W.3d 290 (2006). Flight is
probative evidence of guilt. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006).
Testimony at the jury trial revealed the following. There was a party at Mr. Dodd’s
residence that night. Weeams and appellant were both outside, on or near Dodd’s porch,
shortly before the shooting started. The men exchanged words; it was interpreted as “a verbal
altercation” between the two.2 Moments later, the men started shooting at one another.
Weeams fired his .38 revolver several times in appellant’s direction, and appellant fired his
9mm semiautomatic weapon several times in Weeams’s direction. Appellant then fled on
2
Appellant allegedly said to Weeams just prior to the shootout, “I’m about what I’m
talking about.”
3
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foot. Weeams was struck by one bullet in the upper left chest; that bullet exited his back
slightly lower and toward the right side. Weeams bled to death at Dodd’s house.
Scales was nearby but not involved in this gunfight; he was struck in his torso near his
pelvis. Although conscious at the scene, Scales was transported by ambulance to the local
hospital, where he died. A 9mm bullet was removed from Scales’s body at autopsy.
The jury had to decide, among other things, who drew his weapon and began firing
first and whether appellant was justified in acting as he did. Datra Strickland testified that she
and Weeams were living together at the time of his death, and she was with him at the
gathering at Dodd’s house. She said that although she had been drinking at the gathering, she
was clear on the circumstances of the shootout. She said that she and Weeams were on
Dodd’s porch, about five feet away from appellant, when appellant made a comment to
Weeams, pulled a gun from his pants, and started shooting. Strickland testified that Weeams
fired many shots in return but that appellant’s gun fired a lot faster than Weeams’s gun. She
saw appellant run away. When it was over, she and Weeams went inside Dodd’s house and
sat on Dodd’s couch. Very soon she observed blood coming out of Weeams’s mouth.
Strickland called 911, but Weeams died on the scene.
Sergeant Shawn Stephens testified that in responding to the call just after 8:00 p.m.,
and in speaking with Strickland, she described appellant as a lighter-skinned, tall, thin African-
American man in his twenties. According to Stephens, Strickland told him that she did not
know what happened.
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Another person at Dodd’s house that night was Robert Tosh Smith (a/k/a “Jukie”).
Smith was interviewed by law enforcement officers three days after the shooting. In that
recorded interview, Smith told officers that appellant was the first to pull his 9mm gun out
and start shooting at Weeams. Smith described appellant firing his gun, running backward
off the porch, and continuing to fire as he ran toward the street. Smith provided a
handwritten statement the same day, reflecting this same course of events. Smith testified,
however, that he later “made a correction” by telling law enforcement that Weeams was the
first to pull his .38 revolver. Smith agreed that the recorded interview with officers was his
“best recollection at that particular time,” but stated that he was pretty traumatized by the
shooting. On the stand, Smith testified that he saw Weeams pull his gun first, but “I mean
it seemed like it was at the same time.” Appellant did not testify at trial.
Appellant argues that because these were the only two witnesses to the actual shooting,
and because Strickland was not credible and Smith’s testimony at trial was that Weeams was
the aggressor, the State failed to disprove the justification defense beyond a reasonable doubt.
We disagree.
The jury is free to accept or reject any part of a witness’s testimony, and credibility and
the weight to give any evidence are issues left solely to the jury. Moody v. State, supra. The
jury decides whether the circumstantial evidence excludes every hypothesis consistent with
innocence, and it turns largely on what the jury concluded regarding appellant’s intent. Id.
Because there was evidence from which the jury could find appellant not to be justified in his
use of deadly force in this instance, we affirm on this point.
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Appellant’s other argument on appeal is that the trial court abused its discretion in
ordering that the eight- and twenty-year prison sentences run consecutively instead of
concurrently. The State contends that this issue is not preserved for appellate review, and
alternatively, that appellant fails to demonstrate an abuse of discretion. We reach the merits
of the argument and affirm.
Prior to the pronouncement of sentence, appellant’s attorney requested that the trial
court exercise its discretion and be merciful by running the sentences concurrently. The
prosecutor asked that they run consecutively. The trial court ruled as follows:
[H]aving heard all the evidence in this case and also the argument presented as to
whether the sentences should run concurrent or consecutive, the Court will exercise
its discretion and order that the sentences run consecutively for a total of twenty-eight
years to serve in the Arkansas Department of Correction.
This issue was preserved for our review.
To the merits, when multiple sentences of imprisonment are imposed on a defendant
convicted of more than one offense, the sentences shall run concurrently unless, upon
recommendation of the jury or the trial court’s own motion, the court orders the sentences
to run consecutively. Ark. Code Ann. § 5-4-403(a) (Repl. 2006). The question of whether
sentences should run consecutively or concurrently lies solely within the province of the
trial court. Throneberry v. State, 2009 Ark. 507, 342 S.W.3d 269. The exercise of that
discretion will not be altered on appeal unless it is clearly shown to have been abused. Steele
v. State, 2014 Ark. App. 257, 434 S.W.3d 424. The appellant assumes a heavy burden of
demonstrating that the trial judge failed to give due consideration to the exercise of his
discretion in the matter of consecutive sentences. Id; see also Bunch v. State, 344 Ark. 730, 43
6
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S.W.3d 132 (2001); Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358. The circuit court
must actually exercise discretion in sentencing. Throneberry v. State, supra.
Here, the jury heard testimony from some members of the victims’ families that,
although pained by their losses, they had forgiven appellant for killing their loved ones.
Appellant took the stand and asked for mercy. The jury was not asked to, and thus did not,
make a recommendation as to concurrent or consecutive sentencing.
Appellant was exposed to six-to-thirty years, up to a $15,000 fine, or both on each
count of second-degree murder. The jury sentenced appellant to eight years for the second-
degree murder of Weeams and to twenty years for the second-degree murder of Scales. The
trial judge sentenced appellant to consecutive sentences totaling twenty-eight years rather than
concurrent sentences totaling twenty years. Appellant’s sentence is well within the statutory
sentencing range, even for a single count of second-degree murder. The judge’s commentary
demonstrates that he exercised his discretion in ordering consecutive sentences, and appellant
has failed to demonstrate an abuse of that discretion. Thus, we affirm on appellant’s second
point on appeal.
Affirmed.
GLADWIN, C.J., and WHITEAKER, J., agree.
Morris Law Firm, P.A., by: Jimmy C. Morris, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
7 | 01-03-2023 | 12-17-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2761756/ | Cite as 2014 Ark. App. 713
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-1094
MOSES A. KIMMONS Opinion Delivered December 17, 2014
APPELLANT
APPEAL FROM THE CRITTENDEN
V. COUNTY CIRCUIT COURT
[NO. CR-2010-752]
STATE OF ARKANSAS HONORABLE JOHN N.
APPELLEE FOGLEMAN, JUDGE
REBRIEFING ORDERED; MOTION
DENIED
RITA W. GRUBER, Judge
In June 2010, Moses A. Kimmons pleaded guilty to felon in possession of a firearm and
was sentenced to three years’ imprisonment in the Arkansas Department of Correction and
three years’ suspended imposition of sentence, subject to certain written conditions. The State
subsequently filed a petition to revoke, alleging that he had violated conditions including the
condition that he not possess a Schedule VI controlled substance. At the September 2013
revocation hearing, parole officer Chancey Rainey testified that Kimmons had pleaded guilty
in April 2013 to misdemeanor possession of marijuana. See Ark. Code Ann. § 5-64-215(a)(1)
(Supp. 2013) (listing marijuana as a Schedule VI controlled substance). The circuit court
found that Kimmons by his own admission had violated terms and conditions by possessing
marijuana. The court then granted the petition to revoke and sentenced Kimmons to thirty-
Cite as 2014 Ark. App. 713
six months’ imprisonment in the Arkansas Department of Correction.
As is allowed by Rule 4-3 of the Rules of the Arkansas Supreme Court and Court of
Appeals, Kimmons’s counsel brings a no-merit appeal and a motion asking to be relieved as
counsel. A copy of counsel’s brief and a letter notifying appellant of his right to file a list of
pro se points for reversal were sent by certified mail to Kimmons’s last known address, but the
packet was returned with a notation that the address did not exist. Counsel has no additional
contact information, and Kimmons has not filed points for reversal.
The argument section of counsel’s no-merit brief, despite fairly discussing the evidence
that supports the circuit court’s finding that Kimmons violated conditions, fails to discuss other
rulings that were adverse to Kimmons. We direct counsel’s attention to the requirement that
a no-merit argument must include “a list of all rulings adverse to the defendant made by the
circuit court . . . with an explanation as to why each adverse ruling is not a meritorious ground for
reversal.” Ark. R. Crim P. 4-3(k)(1) (emphasis added). See also Brady v. State, 346 Ark. 298,
302, 57 S.W.3d 691, 694 (2001) (stating that the appellate court “cannot affirm an appellant’s
conviction without any discussion as to why a particular ruling by the trial court should not
be meritorious grounds for reversal”). There are also deficiencies, or perhaps typographical
errors, in the addendum section of counsel’s brief: its table of contents refers to several
documents that do not comport with the record in this case, and the pagination of the
addendum includes two separate documents with identical pagination (the criminal-cost bill
and the petition for revocation).
The briefing deficiencies we have mentioned are not to be taken as an exhaustive list.
2
Cite as 2014 Ark. App. 713
We direct counsel to familiarize himself with the requirements of Rule 4-3(k)(1) and the case
law we have cited. Counsel’s substituted brief, abstract, and addendum are due within fifteen
days from the date of this opinion. Ark. Sup. Ct. R. 4-2(b)(3) (2014). We express no opinion
as to whether the new appeal should address the merits or should be made pursuant to Rule
4-3(k)(1). If a no-merit brief is filed, counsel’s motion and brief will be forwarded by the clerk
to appellant so that, within thirty days, he again will have the opportunity to raise any points
he chooses in accordance with Ark. Sup. Ct. R. 4-3(k)(2). In either instance, the State shall
be afforded the opportunity to file a response brief.
Rebriefing ordered; motion denied.
GLOVER and BROWN, JJ., agree.
Gary J. Barrett, for appellant.
No response.
3 | 01-03-2023 | 12-17-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2266216/ | 5 Cal.Rptr.3d 532 (2003)
112 Cal.App.4th 965
PBA, LLC, et al., Plaintiffs, Cross-Defendants, and Appellants,
v.
KPOD, LTD. et al., Defendants, Cross-Complainants, and Appellants.
No. B137295.
Court of Appeal, Second District, Division Seven.
October 22, 2003.
Rehearing Denied November 21, 2003.
Review Denied January 22, 2004.
*533 Law Offices of M. Reed Hunter, M. Reed Hunter; Jeffer, Mangels, Butler & Marmaro, Paul Hamilton and Neil C. Erickson, Los Angeles, for Plaintiffs, Cross-Defendants Appellants.
Law Offices of Frederico C. Sayre, Frederico C. Sayre, Roy L. Comer, Kent M. Henderson and Daniel Cargnelutti, Santa Ana, for Defendant, Cross-Complainant and Appellant Timothy O'Brien.
Sailor J. Kennedy, in pro. per, for Defendant, Cross-Complainant and Appellant.
Certified For Partial Publication.[*]
JOHNSON, J.
This appeal is the latest episode in a long story of litigation commencing in 1997. At different stages it was heard by five judicial officers, culminating in a record of nearly 20,000 pages. The action involves the purchase, operation and eventual sale of a hotel, the Carson Hilton, by three joint venturers, PBA, LLC (hereafter PBA), KRAD Associates, LLC (hereafter KRAD), and KPOD Ltd. (hereafter KPOD).
After a brief relationship between the companies and their principals characterized primarily by disputes over management, allegations of mismanagement, and general discord, the hotel was partitioned by sale, its liabilities paid, and the remaining proceeds apportioned. Various cross-complaints between the companies and their principals were disposed of by dismissal or trial.
PBA's appeal focuses primarily on rulings made by Judge Gale, contending he "acted as a de facto court of appeal, overturning sound and well-grounded decisions ... made by prior judges and, sometimes by courts of appeal...." PBA argues Judge Gale abused his discretion and exceeded his jurisdiction by making rulings contrary to his predecessors, principally Judge Morgan, in violation of Code of Civil Procedure section 1008. Among other things, PBA challenges Judge Gale's order vacating an order by Judge Morgan declaring defendant and cross-complainant Sailor Kennedy a vexatious litigant and requiring Kennedy to obtain court permission before filing any new litigation in this state.
KPOD, which agrees for the most part with Judge Gale's rulings, primarily appeals from Judge Morgan's grant of summary judgment to PBA on the complaint for partition of the property and certain findings by the referee on the accompanying accounting. KPOD joins Sailor Kennedy in contending Kennedy successfully moved to disqualify Judge Morgan at an early point during the litigation, thereby voiding some of the principal rulings in this case.
Sailor Kennedy, a principal in KPOD, appeals the trial court's decision striking *534 the first 12 causes of action of his cross-complaint against PBA and others and the court's ruling denying his motion to strike the orders of Judge Morgan on the ground Morgan had been disqualified.
Timothy O'Brien, a real estate agent, appeals from the trial court's decision striking the first eight causes of actions in his cross-complaint against the Patels, principals in PBA.
In the published portions of this opinion we hold: (1) Judge Morgan had jurisdiction to strike Kennedy's declaration of prejudice notwithstanding the fact the judge had previously filed a response to the declaration and (2) Judge Gale erred in vacating Judge Morgan's vexatious litigant and pre-filing orders because Kennedy failed to show a change in facts establishing the orders were no longer justified. The facts relevant to these subjects are discussed in our resolution of the issues below.
FACTS AND PROCEEDINGS BELOW[**]
DISCUSSION
I. KENNEDY'S MOTION TO SET ASIDE ALL ORDERS ENTERED BY JUDGE MORGAN WAS PROPERLY DENIED BECAUSE (A) REVIEW OF A DISQUALIFICATION MOTION IS LIMITED TO A PETITION FOR A WRIT OF MANDATE AND (B) ALL OF THE DECLARATIONS OF BIAS AND PREJUDICE WERE ETHER PROPERLY ORDERED STRICKEN OR FOUND MERITLESS.
Pursuant to Code of Civil Procedure section 170.3,[4] Kennedy and O'Brien filed a declaration alleging bias and prejudice against Judge Morgan on January 8, 1998. On the same day, Judge Morgan filed and served a verified answer to the allegations. Still later on the same day, Judge Morgan determined the declaration was untimely and failed to meet the requirements of the statute. Therefore, under the authority of section 170.4 subdivision (b), Judge Morgan ordered the declaration stricken from the record.
Four days later, Kennedy filed another declaration of bias and prejudice, which Judge Morgan immediately ordered stricken.
Kennedy and O'Brien filed two additional declarations of bias against Judge Morgan on May 17, 1999 and June 8, 1999. These declarations were denied by Judges Fujisaki and Gale respectively. Undeterred, on June 21, 1999 Kennedy filed his fifth declaration of bias and prejudice against Judge Morgan.
Judge Morgan recused himself on June 21, 1999 pursuant to section 170.1 subdivision (a)(6), "in furtherance of the interests of justice." Soon after, the case was transferred to Judge Gale. Kennedy then brought a motion to set aside all orders made by Judge Morgan from the time he was assigned to the case, contending Judge Morgan had been effectively disqualified as of January 8, 1998. Judge Gale denied the motion.
A. Section 170.3 subdivision (d) Limits Review of a Judge's Disqualification to a Writ of Mandate Sought Within 10 Days of Notice of the Determination.
Section 170.3 subdivision (d) specifies "the determination of the question of *535 disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate ... sought within 10 days of notice to the parties of the decision...." As this court has held, all litigants "who seek to challenge denial of a statutory judicial disqualification motion are relegated to writ review as described in section 170.3(d)."[5] Likewise, section 170.3 subdivision (d) "forecloses appeal of a claim that a statutory motion for disqualification authorized by section 170.1 was erroneously denied, and this preclusion applies even when the statutory basis ... appears to codify due process grounds for challenging the impartiality of a judge."[6] Thus, as our Supreme Court has affirmed, "the exclusive means for review" of a determination on the disqualification of a judge is by a petition for writ of mandate in accordance with section 170.3 subdivision (d).[7]
"The purpose of this rule is twofold. It seeks to eliminate the waste of time and money which would flow from continuing the proceeding subject to its being voided by an appellate ruling that the disqualification decision was erroneous. It also promotes fundamental fairness by denying the party seeking disqualification a second `bite at the apple' if he loses on the merits but succeeds on appeal from the disqualification order."[8]
Kennedy and O'Brien did not seek a writ of mandate after the striking or denial of any of the statements of bias and prejudice they brought against Judge Morgan. The proceedings then stretched out for over a year and a half, adding more volumes to an already voluminous record. Thus, given the unfairness of reconsidering the disqualification issue at this stage, the failure of Kennedy and O'Brien to seek writ review as provided by section 170.3 constituted a waiver of their statutory claims based on section 170.1.
We conclude, therefore, that Kennedy and O'Brien are precluded from seeking review of their declarations of bias and prejudice (whether stricken or determined meritless), by a motion in the trial court or by appeal following the final judgment.
Furthermore, even assuming the issue is properly before us, we find, for the reasons explained below, that Judge Morgan was not disqualified prior to recusing himself in June, 1999 and therefore the trial court properly denied the motion to set aside his orders.
B. Judge Morgan's Filing an Answer Pursuant to Section 170.3 Did Not Preclude Him From Striking the Statement of Bias and Prejudice Under Section 1704.
Once a statement of disqualification has been filed by a party, the judge has four options. The judge may: (1) request any other judge agreed upon by the parties to sit and act; (2) within 10 days, "file a consent to disqualification;" (3) within 10 days file "a written verified answer admitting or denying any or all of the allegations ...;" or (4) strike the declaration.[9] Failure *536 to respond within the time allowed is deemed a consent to disqualification.[10]
Kennedy contends Judge Morgan's filing an answer to the January 8 declaration pursuant to section 170.3 subdivision (c)(3) precluded him from thereafter striking the declaration of bias pursuant to section 170.4, subdivision (b). Thus, he argues the various procedural options of section 170.3 and 170.4 are mutually exclusive. We disagree.
Notwithstanding the options specified in section 170.3 listed above, if the statement is untimely filed or facially discloses no legal grounds for disqualification, the judge against whom it is filed may strike it.[11] This authority to strike the statement of disqualification derives from section 170.4, subdivisions (d) and (b). Section 170.4, subdivision (d) provides a judge against whom such a statement has been filed, has no power to act "except as provided in this section." (Italics added.) Section 170.4, subdivision (b) states "notwithstanding paragraph (5) of subdivision (c) of section 170.3, if a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against who it was filed may order it stricken." Thus, the authority to strike a declaration exists "notwithstanding" section 170.3 subdivision (c)(5) which precludes judges from ruling on their own disqualifications.
We recently held a challenged judge has the power to order a statement of disqualification stricken as legally insufficient as long as such discretion is exercised within the 10 day time limit imposed by section 170.3, subdivision (c).[12] This time limit is the only restraint on the power retained by a judge to strike a statement of disqualification pursuant to the guidelines of section 170.4, subdivision (b).
KPOD, Kennedy, and O'Brien cite Hollingsworth v. Superior Court[13] for the proposition the judge's options to consent to disqualification, answer, or strike the declaration, are mutually exclusive. They argue once a trial judge files an answer to the declaration, the judge loses power to take any further action. Hollingsworth, however, simply determined a judge cannot consent or answer after striking the statement of disqualification.[14] Therefore, in such circumstances a party need not wait 10 days before seeking relief via writ of mandate.[15] This makes sense because upon striking the declaration, it no longer exists to be consented to or answered. However, nothing prevents the challenged judge from striking the declaration after first answering it. We find no authority or logical reason to prevent a judge from striking such a statement subsequent to filing an answer so long as it is done within the 10 days prescribed by the statute.
Thus, we conclude Judge Morgan's filing of an answer pursuant to section 170.3 subdivision (c)(3) did not preclude him from striking the statement of bias and prejudice within 10 days of its filing. Because Kennedy and O'Brien's January 8, *537 statement of bias was properly stricken according to the statutory procedure, Judge Morgan's subsequent orders were valid.
C. Kennedy's January 12 Statement of Bias and Prejudice Was Ordered Stricken from the Record by Judge Morgan on the Day It Was Filed.
KPOD and Kennedy further claim Judge Morgan did not respond at all to the January 12 declaration of bias and prejudice filed by Kennedy. Therefore, they argue, by not responding within 10 days of the filing of this declaration, Judge Morgan effectively consented to his disqualification.
If Judge Morgan had not responded, according to section 170.3 subdivision (c)(4), he would have been deemed to have consented to disqualification. This section of the code is not relevant to the circumstances at hand, however, because the contention Judge Morgan did not respond is factually incorrect. He read, considered and ordered Kennedy's January 12 declaration of bias stricken from the record on the same day it was filed. This determination is clearly set forth in a minute order dated January 12, 1998. As discussed above, under section 170.4, within 10 days after the declaration is filed, the trial court retains the power to strike it as being untimely or for facially failing to meet the statutory requirements. Therefore, because Judge Morgan did respond to Kennedy's January 12 challenge for cause under section 170.1 by striking his declaration, the judge did not consent to disqualification and thus retained jurisdiction to enter subsequent orders.
In sum, because Kennedy and O'Brien's declarations pursuant to section 170.1 were stricken and not challenged via writ of mandate, the validity of Judge Morgan's orders could not be challenged on the ground the judge had been disqualified. Accordingly, Judge Gale properly denied the motion brought by Kennedy and O'Brien to set aside all orders entered by Judge Morgan.
II.-VIII.[***]
IX. JUDGE GALE ABUSED HIS DISCRETION IN VACATING JUDGE MORGAN'S VEXATIOUS LITIGANT AND PREFILING ORDERS BECAUSE KENNEDY FAILED TO SHOW A CHANGE IN MATERIAL FACTS TO ESTABLISH THE ORIGINAL DETERMINATION WAS NO LONGER JUSTIFIED.
The vexatious litigant statutes were designed to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues, especially those "`persistent and obsessive' litigants [who] often file groundless actions against judges and other court officers who made adverse decisions against them."[80]
Soon after Kennedy's first two attempts to disqualify Judge Morgan with a declaration of bias and prejudice, PBA filed a motion for an order declaring Kennedy a vexatious litigant pursuant to section 391. Section 391, subdivision (b)(3), defines a "vexatious litigant" as a person who "in any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other *538 tactics that are frivolous or solely intended to cause delay." PBA additionally sought a prefiling order against Kennedy pursuant to section 391.7. A prefiling order under section 391.7 prohibits a vexatious litigant from "filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court."
In support of its motion, PBA alleged Kennedy had (a) accused no less than eight judges or retired judges of being biased, bigoted, or incompetent; (b) sued no less than two judges in groundless proceedings; (c) referred or threatened to refer virtually every judge who had ruled against him to the jurisdictional body overseeing the judge's performance, and (d) accused no less than 15 attorneys of unethical conduct, perjury, altering documents, and incompetence. PBA also documented a pattern of Kennedy's lack of respect for judicial officers. Kennedy failed to challenge or rebut any of these allegations.
Based on PBA's motion, supporting documents, and his own observations of Kennedy's "substantial" misconduct, Judge Morgan declared Kennedy a vexatious litigant pursuant to section 391.3 and entered a prefiling order pursuant to section 391.7. The prefiling order prevented Kennedy from "filing any new litigation, including any complaints or cross-complaints ... in propria persona, in the courts of this state without first obtaining leave of the presiding judge of the court where the litigation is pending or proposed to be filed."
After the case was transferred to Judge Gale, Kennedy brought a motion to vacate the orders declaring him a vexatious litigant and imposing prefiling restrictions. Judge Gale granted Kennedy's motion and vacated the prefiling order and vexatious litigant finding. PBA appeals this reversal on the ground it was improper based on the record before Judge Gale.
Despite the apparent unfairness of permanently branding a person as a vexatious litigant, it is unclear how the vexatious litigant determination can be erased in appropriate cases. The statutory scheme of sections 391 through 391.7 does not itself provide a procedural mechanism for dissolving an order declaring a person a vexatious litigant. Indeed, in most cases, vacating the vexatious litigant determination appears to be precluded by section 1008 beyond 10 days of notice of entry of the finding.[81]
The court in Wolfgram v. Wells Fargo Bank, by analogizing to a licensing system, implied a prefiling order entered pursuant to section 391.7 may be a permanent form of relief.[82] The court reasoned "to the extent [section 391.7] keeps vexatious litigants from clogging courts, it is closer to licensing or permit systems which are administered pursuant to narrowly drawn, reasonable and definite standards which represent governments only practical means of managing competing uses of public facilities[.]" [Citation]. When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.[83] While there is much to recommend this reasoning, the conclusion section 391.7 is to be a permanent, irrevocable restriction is troubling. Although section 391.7 does not absolutely exclude the "pro per" litigant from the courts, we believe *539 fundamental fairness requires the "vexatious litigant" brand be erasable in appropriate circumstances.
In the present case, we need not reach the issue of whether or not the brand of "vexatious litigant" can be erased once applied. At a minimum, to cast off the vexatious litigant label the court would have to find a change in facts or circumstances relating to the original determination. Kennedy failed to establish such new facts. Thus, even if it is theoretically possible to remove the brand of vexatious litigant, Judge Gale abused his discretion in doing so here because Kennedy failed to show a change in facts indicating a mending of his ways or conduct to support a reversal of the original determination. Furthermore, although we believe a prefiling order entered pursuant to section 391.7 may be reversible under section 533 as a form of injunction, Kennedy did not make the showing necessary for such a reversal. Kennedy failed to establish under section 533 either (a) "the ends of justice would be served" by the dissolution of the pre-filing order or (b) there was a "material change in the facts" upon which the order was entered.
A. Judge Gale Abused His Discretion by Vacating Judge Morgan's Order Declaring Kennedy a Vexatious Litigant Because There Were No New Facts to Support a Reversal of The Original Determination.
Judge Morgan stated his order declaring Kennedy a vexatious litigant was based on "reasons stated at the hearing and in the pleadings and exhibits, and also ... substantial [mis]conduct of Sailor Kennedy observed by the Court during the course of proceedings before the Court." Moreover, Judge Morgan declared Kennedy a vexatious litigant on what he found to be an ample, "overwhelming," "dismal record." Specifically, Judge Morgan told Kennedy: "I have observed your actions throughout. And I have seen what I deem to be frivolous actions in many categories, many ways in arguing with the court, presenting documents to the court." He further considered Kennedy's tactics, such as his last minute dismissal of his cross-complaint just days before the hearing on the demurrer and after Judge Morgan had already spent considerable time in preparing for the hearing.
Assuming Judge Gale had the power to reverse Judge Morgan's order declaring Kennedy to be a vexatious litigant, he would at least have had to find a change in facts or circumstances showing the finding was no longer appropriate.
Judge Gale's order was expressly based on several factors, none of which amounted to a change in facts or circumstances sufficient to reverse the vexatious litigant order. First, Judge Gale believed the "abrupt" proceedings under Judge Rutberg at the receivership proceedings on March 20, 1998 had sent Kennedy "off the deep end." Judge Gale emphasized he would "not even give a second thought" to vacating the vexatious litigant declaration and prefiling order if it were not for the events of March 20, which he felt triggered Kennedy's frustration and vexatious actions. However, even if the events of March 20 were a mitigating circumstance that should have been considered in making the initial vexatious litigant finding against Kennedy, they do not amount to a change in the facts upon which the original determination was based. The transcripts from the receivership proceedings on March 20 were available for Judge Morgan to consider when he declared Kennedy to be a vexatious litigant. Additionally, the significance of the March 20 hearing is questionable because Judge Morgan was *540 not the first judge to have a declaration of bias and prejudice brought against him by Kennedy.[84]
Furthermore, in addition to his observations of Kennedy's conduct, Judge Morgan's order was based in part on the pleadings and exhibits, which detailed a litany of vexatious or frivolous actions by Kennedy in previous proceedings. Therefore, Judge Gale's belief there was an event which understandably (although unjustifiably) triggered Kennedy's actions was not a sufficient basis for vacating Judge Morgan's order. This order was based in part on a long pattern of conduct prior to the receivership proceedings. Therefore, rather than simply showing circumstances to warrant sympathy towards his position, Kennedy needed to show he had ceased the behavior which defined him as a vexatious litigant under section 391, subdivision (b)(3). We find Kennedy failed to demonstrate any facts which would suggest such a change in his behavior as a propria persona litigant.
Additionally, Judge Gale considered the merits of Kennedy's case and the credibility of Kennedy as a witness. Neither of these considerations is relevant to the determination of whether a person is a vexatious litigant within the meaning of section 391, subdivision (b)(3). Kennedy's credibility as a witness and the merits of part of his defense do not alter the court's findings based on his relevant actions before the court and as demonstrated in previous proceedings. As discussed above, section 391, subdivision (b)(3) defines a vexatious litigant as one who "while acting in propria persona, repeatedly files unmeritorious motions, pleadings or other papers ... or engages in other tactics that are frivolous or solely intended to cause [unnecessary delay." (Emphasis added). Therefore, with ample findings directly related to the definition provided by section 391, subdivision (b)(3), Kennedy's subsequent credibility as a witness and improvement in the merits of portions of his case were irrelevant.
Kennedy failed to establish he had mended his ways. On the contrary, rather than ceasing his frivolous and delaying tactics, after being declared a vexatious litigant Kennedy brought his third and fourth declarations of bias and prejudice against Judge Morgan.
In sum, Judge Gale abused his discretion by vacating Judge Morgan's vexatious litigant finding because Kennedy completely failed to establish this determination was either incorrect in the first instance or no longer required in light of new facts.
B. Judge Gale Abused His Discretion by Vacating and Dissolving Judge Morgan's Prefiling Order Against Kennedy Because There Was No Change in Material Facts Upon Which The Original Determination Was Based.
Upon declaring Kennedy to be a vexatious litigant pursuant to section 391, subdivision (b)(3), Judge Morgan entered a prefiling order pursuant to 391.7. Under that section, the presiding judge can permit the filing of a propria persona's litigation only if it appears to have merit and is not filed for the purposes of harassment or delay.[85] Further, the presiding judge may condition the filing of the litigation upon *541 the furnishing of security.[86] "The prefiling order component of the vexatious litigant statute is a necessary method of curbing those for whom litigation has become a game."[87] These prefiling restrictions are enforced through the requirement the court provide the Judicial Council with a copy of the order. The Judicial Council then annually disseminates a list of vexatious litigants to the clerks of courts of the state.[88]
Viewing the prefiling order as a form of injunction, it may have been reversible according to the guidelines of section 533. Under section 533, the prefiling order could be reversed if either (a) "the ends of justice would be served" by the dissolution of the order or (b) there has been a "material change in the facts" upon which the order was entered.
When Judge Gale reviewed the motion to vacate the prefiling order, nothing on the record suggested the order would no longer be an appropriate safeguard against Kennedy's vexatious and frivolous actions. Furthermore, there were no new facts to indicate Kennedy had ceased the behaviors which formed the basis for Judge Morgan's vexatious litigant determination. By nature of the statutory scheme, Judge Morgan's vexatious litigant finding was the crux of his basis for entering the prefiling order.[89] Thus, because there were no new facts to support vacating the vexatious litigant determination, likewise, there was no material change in the facts upon which the prefiling order was based.
Kennedy contends a change in the merits of his defense was sufficient to support the reversal of the prefiling order. This apparent change in facts may be relevant under section 391, which requires the posting of security only upon showing the plaintiff is a vexatious litigant and "there is not a reasonable probability that he will prevail in the litigation against the moving defendant." However, the provisions of section 391.7 do not require an inquiry into the probability of the vexatious litigant's success in the particular case in order to enter a prefiling order. Thus, an improvement in the merits of Kennedy's defense was not relevant to Judge Morgan's vexatious litigant declaration under 391(3) or the prefiling order entered pursuant to 391.7.
Kennedy further argues it would serve the ends of justice to reverse the prefiling order in light of the change in the merits of his defense. However, Judge Morgan's order declaring Kennedy a vexatious litigant was not solely based on his filing frivolous lawsuits or upon the merits of the present case. The declaration was based in large part on Kennedy's vexatious behavior before the court and in his past repeated, meritless attempts to disqualify judges. Therefore, in light of the statute's aim to prevent abuse of the court system by propria persona litigants, a change in the merits of Kennedy's defense does not alter Judge Morgan's determination based upon his own observations of substantial misconduct.
In conclusion, we find Judge Gale erred in reversing the order declaring Kennedy to be a vexatious litigant and imposing prefiling restrictions, because there were no new material facts to support a reversal. Further, it did not serve the ends of justice to vacate the prefiling order. To the contrary, there was ample evidence to indicate Judge Morgan's order was justified *542 and continued to be an appropriate preventive measure against future frivolous filings by Kennedy.
We will remand this matter to the trial court with directions to vacate Judge Gale's order reversing the previous orders declaring Kennedy to be a vexatious litigant and imposing prefiling restrictions against Kennedy. Should Kennedy choose to refile a complaint containing the causes of action he previously voluntarily dismissed, the vexatious litigant and prefiling orders will apply to that complaint.
DISPOSITION
The order denying the motion by Kennedy and O'Brien to set aside all orders by Judge Morgan is affirmed.
The judgment in favor of KPOD on its cross-complaint against PBA is reversed.
The judgment in favor of KPOD and the other cross-defendants on PBA's cross-complaint is affirmed.
The order approving and adopting the referee's final accounting is affirmed.
The order awarding attorney fees to PBA on the partition action is affirmed.
The order requiring the receivership estate to pay the receiver's attorney fees in defending the action brought by Seaspan, Inc. is affirmed.
The order releasing from escrow PBA's share of the accounting fees billed to the hotel by White Nelson & Company is affirmed.
The orders sustaining demurrers to and dismissing the first through twelfth causes of action in Sailor Kennedy's cross-complaint are reversed. The order striking the thirteenth cause of action with leave to amend is affirmed.
The orders sustaining demurrers to and dismissing the first through eighth causes of action in Timothy O'Brien's cross-complaint are reversed. The order sustaining the demurrer to the ninth cause of action is affirmed.
The trial court is directed to vacate Judge Gale's order reversing the previous orders declaring Sailor Kennedy a vexatious litigant and imposing prefiling restrictions.
Each party to bear its own costs on appeal.
We concur: PERLUSS, P.J., and MUNOZ, J.[*]
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Facts and Proceedings Below and parts II through VIII.
[**] See footnote *, ante.
[4] All future statutory references are to the Code of Civil Procedure unless otherwise specified.
[5] Roth v. Parker (1997) 57 Cal.App.4th 542, 548, 67 Cal.Rptr.2d 250.
[6] Roth v. Parker, supra, 57 Cal.App.4th at page 548, 67 Cal.Rptr.2d 250.
[7] Curie v. Superior Court (2001) 24 Cal.4th 1057, 1059, 103 Cal.Rptr.2d 751, 16 P.3d 166.
[8] Gai v. City of Selma (1998) 68 Cal.App.4th 213, 230, 79 Cal.Rptr.2d 910.
[9] Sections 170.3, subdivision (c), 170.4(b); Urias v. Harris Farms (1991) 234 Cal.App.3d 415, 420, 285 Cal.Rptr. 659.
[10] Section 170.3 subdivision (c)(2)-(4); Urias v. Harris Farms, supra, 234 Cal.App.3d at page 420, 285 Cal.Rptr. 659.
[11] Section 170.4, subdivision (b); Urias v. Harris Farms, supra, 234 Cal.App.3d at page 420, 285 Cal.Rptr. 659.
[12] Lewis v. Superior Court (1988) 198 Cal. App.3d 1101, 1104, 244 Cal.Rptr. 328.
[13] Hollingsworth v. Superior Court (1987) 191 Cal.App.3d 22, 26, 236 Cal.Rptr. 193.
[14] Hollingsworth v. Superior Court, supra, 191 Cal.App.3d at page 26, 236 Cal.Rptr. 193.
[15] Hollingsworth v. Superior Court, supra, 191 Cal.App.3d at page 26, 236 Cal.Rptr. 193.
[***] See footnote *, ante.
[80] Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 220-221, 120 Cal.Rptr.2d 879.
[81] Section 1008 requires an application for reconsideration be made to the same judge who made the order within 10 days of notice of the order and only upon a change of facts, circumstances or law.
[82] Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 60, 61 Cal.Rptr.2d 694.
[83] Wolfgram v. Wells Fargo Bank, supra, 53 Cal.App.4th at page 60, 61 Cal.Rptr.2d 694.
[84] Kennedy's lack of respect towards judicial officers who rule against him is displayed in a July 28, 1994 deposition in which he bragged: "... I don't let judges run over me anymore. Scumbucket attorneys they are just as low as scumbucket attorneys."
[85] Section 391.7, subdivision (b).
[86] Section 391.7, subdivision (b).
[87] Wolfgram v. Wells Fargo Bank, supra, 53 Cal.App.4th at page 60, 61 Cal.Rptr.2d 694.
[88] Section 391.7, subdivision (d).
[89] See Sections 391-391.7.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264956/ | 6 F.Supp. 653 (1933)
In re INSULL UTILITY INVESTMENTS, Inc.
No. 49943.
District Court, N. D. Illinois, E. D.
December 22, 1933.
*654 White & Hawxhurst and Jacobson, Merrick, Nierman & Silbert, all of Chicago, Ill., for petitioning creditors.
Rosenthal, Hamill & Wormser, of Chicago, Ill., for trustee.
William L. Latimer, of Chicago, Ill., for bankrupt.
Samuel A. & Leonard B. Ettelson, of Chicago, Ill., for Amy B. Ettelson.
Cassels, Potter & Bentley, of Chicago, Ill., and Allen & Dalbey, of Danville, Ill., for Calvin Fentress.
EVANS, Circuit Judge.
The questions which are here presented grow out of the petition of Calvin Fentress for compensation for services rendered as receiver and compensation to Allen & Dalbey and Cassels, Potter & Bentley for legal services rendered.
Fentress was appointed receiver of the Insull Utility Investments, Inc. upon motion of plaintiff Cherry, who filed a suit in the District Court for the Northern District of Illinois against said company. After his appointment as receiver in the main suit brought in the Northern District of Illinois, he was appointed ancillary receiver in New York and was later appointed receiver in the bankruptcy proceedings instituted in the Northern District of Illinois against the same company. He asks for compensation for himself and for the attorneys who acted as his counsel. Although his request for compensation is for services rendered by him and his attorneys in the bankruptcy matter, the court is required, under the rule laid down in Gross v. Irving Trust Co., 289 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243, to finally pass upon the reasonableness of the compensation allowed in the equity receivership matters and, to do so, must determine the value and the necessity of the services rendered by the receiver and his attorneys.
One Ettelson, an unsecured creditor, objects to the allowance of any fees either to the receiver or his attorneys, Allen & Dalbey, on the ground that the suits were collusively instituted to secure, through the practice of fraud on the court, the appointment of receiver and counsel who would not, and could not, adequately represent those not parties to the fraudulent agreement. No objection is made to the allowance of fees to Cassels, Potter & Bentley, who were employed some weeks after the receiver was appointed, and who are admittedly outside the scope of the alleged collusive agreement; nor is there any objection to the reasonableness of the sums sought, if the court be of the opinion that fees should be allowed.
All of the receiverships above mentioned have been terminated, and the receiver Fentress has turned over all of the assets, which he received or collected as receiver, to his successor, the trustee of the bankrupt estate of Insull Utility Investments, Inc.
The application for the appointment of a receiver of Insull Utility Investments, Inc. was made April 16, 1932. The receiver Fentress was appointed April 16, 1932. He was named ancillary receiver in New York on the 19th day of May, 1932. He was named receiver in the matter of the bankrupt estate of Insull Utility Investments, Inc. on the 22nd day of September, 1932. The trustee of the bankrupt estate was appointed March 9, 1933.
There are two specific questions which the court must determine: (a) Was there such collusion in the institution of the original suit *655 wherein Fentress was appointed receiver, or in the ancillary proceedings wherein he was appointed ancillary receiver, or in the proceedings leading to his appointment as receiver in the bankruptcy matter, as to justify the refusal of any compensation to him and to his attorneys? (b) If not, what sum would compensate him for work performed and what sum should be allowed his counsel for services rendered?
In order that we may apply the rule, it is necessary first to ascertain what constitutes collusion. It has been frequently defined by various courts, including the Supreme Court.
In Dickerman v. Northern Trust Co., 176 U. S. 181, 20 S. Ct. 311, 314, 44 L. Ed. 423, the court said:
"We have no doubt that this judgment was collusive in the sense that it was obtained by the plaintiff and consented to by the defendant company for the purpose of giving the trustees a legal excuse for declaring the principal and interest of the mortgage to be due, and to give authority for a foreclosure. But this did not constitute collusion in the sense of the law, nor does it meet the exigencies of the petitioners' case. Collusion is defined by Bouvier as `an agreement between two or more persons to defraud a person of his rights by the forms of law, or, to obtain an object forbidden by law,' and in similar terms by other legal dictionarians. It implies the existence of fraud of some kind, the employment of fraudulent means, or lawful means for the accomplishment of an unlawful purpose; but if the action be founded upon a just judgment, and be conducted according to the forms of law and with a due regard to the rights of parties, it is no defence that the plaintiff may have had some ulterior object in view beyond the recovery of a judgment, so long as such object was not an unlawful one."
In Re Metropolitan Ry. Receivership, 208 U. S. 90, 28 S. Ct. 219, 224, 52 L. Ed. 403, the court said:
"It is asserted also, that there was collusion between the complainants and the street railway companies, on account of which the court had no jurisdiction to proceed * * *. Whether the suit involved a substantial controversy we have already discussed, and the only question which is left under that act is as to collusion.
"In this case we can find no evidence of collusion, and the Circuit Court found there was none. It does appear that the parties to the suit desired that the administration of the railway affairs should be taken in hand by the Circuit Court of the United States, and to that end, when the suit was brought, the defendant admitted the averments in the bill and united in the request for the appointment of receivers. This fact is stated by the Circuit Judge; but there is no claim made that the averments in the bill were untrue, or that the debts, named in the bill as owing to the complainants, did not in fact exist; nor is there any question made as to the citizenship of the complainants, and there is not the slightest evidence of any fraud practiced for the purpose of thereby creating a case to give jurisdiction to the Federal court. That the parties preferred to take the subject matter of the litigation into the Federal courts, instead of proceeding in one of the courts of the State, is not wrongful. So long as no improper act was done by which the jurisdiction of the Federal court attached, the motive for bringing the suit there is unimportant. Dickerman v. Northern Trust Co., 176 U. S. 181, 190; South Dakota v. North Carolina, 192 U. S. 286, 311; Blair v. City of Chicago, 201 U. S. 400, 448; Smithers v. Smith, 204 U. S. 632, 644."
Other decisions dealing with the same subject are to be found in: Harkin v. Brundage, 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457; Black & White Taxicab Co. v. Brown & Yellow Co., 276 U. S. 518, 48 S. Ct. 404, 72 L. Ed. 681, 57 A. L. R. 426; Street v. Maryland Central Ry. Co. (C. C.) 58 F. 47; Burton v. R. G. Peters Salt & Lumber Co. (C. C.) 190 F. 262; May Hosiery Mills, Inc., v. F. & W. Grand 5-10-25 Cent Stores, Inc. (D. C.) 59 F.(2d) 218; Williams v. Nottawa, 104 U. S. 209, 26 L. Ed. 719; Lake County Commissioners v. Dudley, 173 U. S. 243, 19 S. Ct. 398, 43 L. Ed. 684.
A general statement of what constitutes collusion appears in Corpus Juris, volume 11, page 1220, section 2, from which the following quotation is taken:
"Collusion in judicial proceedings is a secret agreement between two persons that the one should institute a suit against the other, in order to obtain the decision of a judicial tribunal for some sinister purpose, and appears to be of two kinds: (1) When the facts put forward as the foundation of the sentence of the court do not exist. (2) When they exist, but have been corruptly preconcerted for the express purpose of obtaining the sentence. In either case the judgment obtained by such collusion is a nullity. The term is nearly allied to covin, and has been judicially defined as a secret agreement between two or more persons, whose interests are apparently conflicting, to make use of the forms and proceedings *656 of law in order to defraud a third person, or to obtain that which justice would not give them, by deceiving a court or its officers; a secret understanding between two parties who plead or proceed fraudulently against each other to the prejudice of a third person; an agreement between two or more persons unlawfully to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law * * * or where two persons apparently in a hostile position, or having conflicting interests, by arrangement do some act in order to injure a third person, or to deceive a court, or by keeping back evidence of what would be a good answer, or by agreeing to set up a false case; a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third person of his right; an agreement to obtain an object forbidden by law; a concerted or agreed purpose to commit a fraud or to accomplish a wrong; fraud."
A few illustrations of collusion which clearly fall within the condemnation of the courts may be helpfully stated.
A sues B on a debt when there is no debt, and B by his answer admits the indebtedness pursuant to an agreement between A and B to defraud other creditors of B. Here we have a clear case of collusion. Again, A is indebted to B in a sum less than $3,000 and through agreement with B raises the sum to an amount in excess of $3,000 so that the jurisdiction of the Federal court may be invoked; and B, in his answer, admits indebtedness in excess of $3,000. Here we have another illustration of fraud which clearly establishes collusion.
The instant case, however, may readily be distinguished from the above illustrations.
The inquiry may be stated thus: In a receivership proceeding, may the defendant cause a suit to be brought against it by a bona fide creditor and, by answering and truthfully admitting the allegations of the complaint, join in the recommendation of a certain receiver? Obviously, the answer must be Yes. No collusion in this statement of facts is disclosed, for as stated in Dickerman v. Northern Trust Co., 176 U. S. 181, 190, 20 S. Ct. 311, 314, 44 L. Ed. 423:
"* * * It (collusion) implies the existence of fraud of some kind, the employment of fraudulent means, or lawful means for the accomplishment of an unlawful purpose * * *."
But, if the receivership proceedings are brought about by the defendant (that is, by the defendant's inducing a friendly creditor to bring suit against it) for the purpose of securing a receiver who will be friendly to those who have previously operated the company's affairs and have been guilty of peculation or other wrongdoing, and in the motion for the receiver, the plaintiff, without informing the court who it was that induced him to bring the suit and make the nomination, recommends as the receiver, the party selected by the defendant company, and the defendant, also remaining silent on the conflict of interest, joins in the recommendation, then we have, so far as the appointment of a receiver is concerned, collusion. Likewise, if B, an insolvent company that has preferred X, a creditor, causes a suit to be instituted against it by A, one of its "friendly" creditors, and X and B, for the purpose of preventing the receiver from vigorously prosecuting either the managing officers or those who hold preferred or secured claims subject to be set aside, induce A to recommend to the court the name of one chosen by X and B, and A fails to inform the court by whom his nominee was chosen and fails to inform the court of the adverse character of their interests, then, too, we have a case of collusion.
No other rule could safely be adopted or would adequately protect a court from the imposition of fraud upon it by parties interested in protecting themselves rather than the involved company or its unsecured creditors. The importance of such a rule of practice as here announced can hardly be overestimated. The court should, when appointing receivers, pay heed to the recommendations of those vitally interested. Receiverships are not perquisites or patronage of a court. They are not favors to be passed to friends. The request of those who have invested their money in the enterprise must be the persuasive voice in the determination of the appointee. True, the court has a veto power which should be freely exercised, but only when convinced that another can serve better than the recommended party. It is because of the importance of the recommendation thus made that the court is entitled to candor, good faith, and a full disclosure of the interests of those who bring the suit and of those making the recommendation.
Because the equity proceeding is instituted in order that the affairs of the company may be temporarily operated by a receiver, and operation of such affairs by the receiver *657 is the essence of such suit, we must look to the proceedings preliminary to the receiver's appointment to ascertain whether there was collusion. In the illustrations cited above, the establishment of a fraudulent or an enlarged claim constitutes the collusion. In the case under consideration the inquiry must be directed to interested parties' activities, and to the effect of such activities, leading up to the appointment of the receiver.
The adversary relation between plaintiff and defendant must exist at all times. It does not, and can not, exist where the defendant picks its adversary, prepares a complaint for it, and said adversary appears in court and, as an adversary, nominates one selected by the defendant company, or by a creditor whose position is hostile to the position of the receiver to be appointed. That the line of demarcation may be clearly drawn and the distinction between this and other suits which have been sustained by the courts may be emphasized, it may not be inappropriate to more definitely distinguish between proper and improper practices. This, I shall endeavor to do.
An involved company may explain its embarrassment to a creditor. It may select one creditor over others. It may urge a creditor to bring a suit and request the appointment of a receiver. It may furnish to said creditor the facts which show the advisability and necessity of the appointment of a receiver. It may recommend for receiver the name of one whom it prefers. All these things it may lawfully and properly do.
But, it may not alone, or in conjunction with secured creditors whose security must, or may thereafter be, attacked by the receiver, induce said creditor to bring the suit and recommend as its own naming, a receiver selected by the company and said secured creditors. Nor can an executive of the company interested in protecting his own action, while directing the affairs of the company, assume to speak for the company when it comes to nominating a receiver who, in the performance of his duties, may be required to bring suit against said executive officer. It is not the bringing of a suit by a friendly creditor that is objectionable, nor is consent to the entry of a decree, evidence of collusion. It is only when the suit is one for the appointment of a receiver and the nominee proposed for receiver is urged by one who, assuming to speak as a creditor, voices the recommendation of those whose interests are adverse to that of the company and its creditors, that fraud appears.
The word "collusion" is somewhat of a misnomer. The theory upon which the foregoing rule is based, must be traceable to certain maxims of equity which find elaboration in the case of Keystone Driller Co. v. General Excavator Co., 290 U. S. 240, 54 S. Ct. 146, 147, 78 L. Ed. 293, decided December 4, 1933, by the Supreme Court, Justice Butler writing the opinion. The court was considering the effect of a failure to disclose certain material facts to the court.
The court said:
"Plaintiff contends that the maxim does not apply unless the wrongful conduct is directly connected with and material to the matter in litigation, and that, where more than one cause is joined in a bill and plaintiff is shown to have come with unclean hands in respect of only one of them, the others will not be dismissed.
"The meaning and proper application of the maxim are to be considered. As authoritatively expounded, the words and the reasons upon which it rests extend to the party seeking relief in equity. `It is one of the fundamental principles upon which equity jurisprudence is founded, that before a complainant can have a standing in court he must first show that not only has he a good and meritorious cause of action, but he must come into court with clean hands. He must be frank and fair with the court, nothing about the case under consideration should be guarded, but everything that tends to a full and fair determination of the matters in controversy should be placed before the court.' Story's Equity Jurisprudence (14th Ed.) § 98. The governing principle is `that whenever a party who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy.' Pomeroy, Equity Jurisprudence (4th Ed.) § 397. This court has declared: `It is a principle in chancery, that he who asks relief must have acted in good faith. The equitable powers of this court can never be exerted in behalf of one who has acted fraudulently or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make this court the abetter of iniquity.' Bein v. Heath, 6 How. 228, 247, 12 L. Ed. 416. And again: `A court of equity acts only when and as conscience commands; and if the conduct of the plaintiff be offensive to the dictates *658 of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.' Deweese v. Reinhard, 165 U. S. 386, 390, 17 S. Ct. 340, 341, 41 L. Ed. 757.
"But courts of equity do not make the quality of suitors the test. They apply the maxim requiring clean hands only where some unconscionable act of one coming for relief has immediate and necessary relation to the equity that he seeks in respect of the matter in litigation. They do not close their doors because of plaintiff's misconduct, whatever its character, that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication. Story, Id., § 100. Pomeroy, Id., § 399. They apply the maxim, not by way of punishment for extraneous transgressions, but upon considerations that make for the advancement of right and justice. They are not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion."
It is urged that the practice followed in the instant case has the sanction of like practices in most large receivership matters here and elsewhere. If so, the solution is a simple one. Cease the practice.
As the rule of conduct has been determined, it becomes necessary to consider the evidence to ascertain whether the parties seeking the appointment of a receiver kept within, or stepped outside, the rule of proper conduct.
A brief review of the situation that existed when the receiver was appointed is herewith attempted. It is quite impossible to separate the application for the appointment of a receiver in the Insull Utility Investments, Inc., from like applications in Middle West and Corporation Securities Companies. Three companies were organized and promoted by the so-called Insull interests. They all revolved about the activities of one Samuel Insull, Sr. One company, the Middle West, was a holding company, and the other two are investment trusts. Neither the genus, the holding company, nor the specie, the investment trust, can find but little justification for legal existence. Their unfortunate presence in our midst is due to the desire of states to secure revenue and the race of the states has been one of laxity and not one of diligence. Liggett v. Lee, 288 U. S. 559, 53 S. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699.
As it was conducted in 1929, the investment trust was nothing but a glorified gambling institution. Hardly had Insull Utility Investments, Inc., sailed forth on the sea of speculation carrying the Insull flag than it was attacked by the pirate ship Eaton, from Cleveland. In 1929, piracy was not outlawed, nor, it seems, was there any closed season on the operations of those engaged in this popular pastime on the sea of high finance. When the smoke of this conflict disappeared and the damage was appraised, it was found that the assets of the Insull Utility Investments, Inc., were sadly depleted. In the succeeding months the company borrowed vast and ever vaster sums of money from banks, to secure which it hypothecated most of its remaining assets.
On April 16, 1932, when the receivers were appointed, it had outstanding unsecured debentures of Series B, aggregating $60,000,000, and it had another issue of debentures, known as Series A, aggregating $6,000,000. It owed banks in the sum of $42,085,020, all secured. Its capital stock was represented by 60,000 shares of Prior Preferred Stock without par value; 40,000 shares of Preferred Stock, 1st Series without par value; 450,000 shares of Preferred Stock 2nd Series; and 3,636,622 shares of Common Stock without par value. Its unliened assets aggregated approximately $1,500,000. Mr. Insull made one last, final effort to borrow money with which to pay interest on the debenture notes, but failed. The company was therefore unable to pay the interest about to become due upon its debenture notes. In short, its financial condition was desperate, beyond all hope of rehabilitation. It was hopelessly and irretrievably insolvent.
Each debenture note contained the following provision:
"The Company hereby covenants and agrees with the holder hereof that so long as this debenture shall be outstanding and provision for the payment thereof shall not have been made, it will not mortgage or pledge any of its property unless the instrument creating such mortgage or pledge shall provide that this debenture shall be secured thereby equally and ratably with all other obligations issued or to be issued thereunder, except that the Company without so securing this debenture (a) may at any time mortgage or pledge any of its property for the purpose of securing loans to the Company contracted in the usual course of business for periods not exceeding one year, and (b) may, in order to secure the purchase price or part thereof of *659 any property which it may hereafter acquire, mortgage or pledge any or all of such acquired property."
It was in the face of this situation that Samuel Insull, Sr. invited representatives of banks, who held the company's notes secured by the company's assets, to meet and discuss with him the question of a receivership, which discussion included the nomination of receivers.
Mr. Insull's attorneys, presumably upon his instructions, drew bills of complaint for the appointment of a receiver for at least two, if not three, of the aforenamed companies. At the second meeting held in Insull's office, that gentleman refused to accept Mr. Calvin Fentress as sole receiver of Insull Utility Investments, Inc.
Secured creditors suggested the name of Mr. Calvin Fentress. Mr. Insull insisted upon naming one of his attorneys as coreceiver. An agreement was then reached and carried out whereby the banks named one receiver, Mr. Insull named the others. The plaintiff who brought the suit represented to the court that the two chosen individuals were the choice of himself and other creditors.
The banks insist that they were activated only by the best of motives in suggesting the name of Calvin Fentress. The subsequent conduct of Mr. Fentress justified the words of commendation of him spoken, but the situation which existed in the affairs of the company made the action of those who sponsored him, collusive.
The company had assets of $1,500,000 with which to meet the unsecured debenture obligations of $66,000,000, as well as other debts which would, of course, leave nothing for the stockholders. The debenture holders had, however, a possible claim against the banks because of the alleged unauthorized action of Mr. Insull in hypothecating the assets which were the only security back of the debenture notes. I do not mean to say that the cause of action in favor of the debenture holders against the secured creditors is a good one. That question is not before me, and I have not been enlightened as to the facts. However, there was the cause of action, and it constituted the one and only hope of the debenture holders.
In such a situation the query, Who represented the debenture holders? becomes an insistent and a most pertinent one.
The secured creditors were not interested in the receiver, for their claims were secured by the hypothecated securities of the company. Mr. Insull, the other nominator of the receivers, asserted an interest because he and his family owned stock in the company. The stock was worthless however, even if the assets of the bank were returned to the company. Only a small fraction of the indebtedness could be paid, which left absolutely nothing for the stockholders. Mr. Insull (and I refer at all times to Insull, Sr. and not Insull, Jr.) was, however, interested in perpetuating his control and perhaps avoiding liability for unauthorized official and other action. The secured creditors, likewise, might have been interested in obtaining the appointment of receivers who would not too aggressively or ably prosecute the company's suit to recover the hypothecated assets. These two interests, thus uniting upon receivers, sought a creditor who signed the bill of complaint prepared for him, and his representative presented it to the court with a statement that the principal creditors desired the appointment of Mr. Fentress and Mr. Cooke.
Upon this showing, and bearing in mind that the suit was one for the appointment of a receiver, a finding that the suit was collusively brought is unavoidable.
But the question of Mr. Fentress' compensation, notwithstanding the collusive agreement, remains for determination. Moreover, his appointment in the ancillary suit was not objectionable, unless such ancillary proceedings are subject to the same attack as the main suit. There can, however, be little question but that his appointment as receiver in the bankruptcy proceedings was on the judge's own initiative and uninfluenced by any outside recommendation. The testimony on the trial supplemented by the voluminous record before me confirm Judge Lindley's judgment. Calvin Fentress, as receiver, earned and deserved the appointment of receiver in the bankruptcy proceedings provided it was a proper case for the appointment of a receiver. His conduct throughout the receivership proceedings was that of an independent and aggressive officer of the court, who merited the court's approval. No sooner was he appointed than he sought and secured an order enjoining the creditor banks in New York from selling the securities which they held. When the order was vacated on appeal, he was appointed ancillary receiver in New York and again stayed the hand of the secured creditor banks in New York by legal action. He promptly demanded and secured the consent of the creditor banks in Chicago, who held the securities hypothecated with them, to hold such securities and not to offer them for sale without 5 days notice to him, *660 and otherwise fully protected the assets of the company for which he was acting as receiver. He was vigilant, honest, and industrious.
His coreceiver, Mr. Cooke, resigned shortly after he was appointed and there is no question involved concerning his action or his compensation.
Mr. Insull, who, as a part of this general scheme, was appointed one of the receivers of Middle West Utilities Company, was, a few weeks after his appointment and immediately upon the discovery of irregularity in his conduct, removed as receiver by Judge Lindley. Judge Lindley's prompt action in dismissing him immediately upon the discovery of grounds therefor, is to be commended.
During the entire period from April 16, 1932, when Fentress was appointed, until he turned over the assets to the trustee in bankruptcy, no creditor, debenture holder, or anyone else objected to his appointment as a receiver.
Whether the compensation of a receiver appointed under the circumstances here shown should be denied in toto (where creditors do not object and the receiver renders valuable and honest service) or whether such compensation should be charged to the plaintiff who brought the suit, need not be decided in view of my determination of the fair value of the receiver's services necessarily rendered.
Fees.
While the objecting creditor has not contested the amount of the fees, if the right to recover exists at all, the court is not so readily absolved from responsibility. The court must determine the reasonableness of the charges, even though no objections are made by any security holder.
Before taking up the specific facts in the instant case, it may not be inappropriate for me to give my conception of a receiver's duties, without an understanding of which it is difficult, if not impossible, to appraise the value of his services or the amount of compensation which should be awarded him.
The position of receiver is one which calls for the performance of responsible and onerous duties, the rendition of which may, as in this case, result in criticism. At times the positions of creditors and stockholders of an involved company are antagonistic and the receiver must act honestly, fairly, impartially and without fear of criticism or attack. He is an officer of the court and often referred to as an arm of the court. His selection evidences confidence in him by those who nominate him and by the court that appoints him. His qualifications should be those that invite trust and confidence. Because of his integrity and experience and his record of achievement in other fields of activity, he is selected. The position is therefore one of honor. And this, too, must have a large bearing in determining the amount of his compensation. By honor, I do not refer to those superficial and artificial indicia of office or position which express themselves in titles, in robes, in ranks, in preferred positions at social functions, etc. Honor as here used has reference to the esteem which is paid to worth to men who have learned and fully appreciate the meaning of the word "responsibility." I, of course, use the word "honor" in this sense when I refer to the position of receiver as one of trust and honor.
The position of receiver being one of honor and trust, an officer of the court, the incumbent must recognize that a substantial part of his compensation must be found in the opportunity to serve. He has, in other words, joined the ranks of those who are public servants, whose compensation never has been and never will be as large as of those engaged in private employment. His compensation must in some ways be compared to the salary of the judge who was sitting on the bench when the appointment was made. An inquiry into the compensation of the United States District Attorney and the Postmaster is appropriate. The salary of the Chief Justice of the United States Supreme Court may well be viewed as the maximum which should be allowed. These are not the sole tests, but it must be recognized that receivers in the Federal courts are in their nature public officers and their compensation must be determined in the light of such facts. Unless the courts can secure the services of such men and unless courts insist upon the selection of such receivers, the task of meeting a situation such as has confronted them since 1929 may well be surrendered to other bodies.
Unless the appointee looks upon the appointment as an opportunity for real service, he will not be reconciled to this compensation. But until and unless such a conception of his position is fully established, it seems to the writer that the administration of embarrassed or bankrupt companies in the Federal courts will never be satisfactory.
The Supreme Court in Newton v. Consolidated Gas Co., 259 U. S. 101, 105, 42 S. Ct. 438, 439, 66 L. Ed. 844, has announced *661 standards by which compensation of officers of the court may well be measured. It said:
"The value of a capable master's services cannot be determined with mathematical accuracy; and estimates will vary, of course, according to the standard adopted. He occupies a position of honor, responsibility, and trust; the court looks to him to execute its decrees thoroughly, accurately, impartially, and in full response to the confidence extended; he should be adequately remunerated for actual work done, time employed, and the responsibility assumed. His compensation should be liberal, but not exorbitant. The rights of those who ultimately pay must be carefully protected; and while salaries prescribed by law for judicial officers performing similar duties are valuable guides, a higher rate of compensation is generally necessary in order to secure ability and experience in an exacting and temporary employment which often seriously interferes with other undertakings. See Finance Committee of Pennsylvania v. Warren, 82 F. 525, 527, 27 C. C. A. 472; Middleton v. Bankers' & Merchants' Tel. Co. (C. C.) 32 F. 524, 525.
"Having regard to these general principles and the special value of knowledge possessed by the trial court, much weight must be given to its opinion. Ordinarily we may not substitute our judgment for its deliberate conclusions, nor interfere with the exercise of its discretion. But when that court falls into error which amounts to abuse of discretion and the cause comes here by proper proceedings, appropriate relief must be granted.
"Notwithstanding protracted, painstaking, and for the most part excellent services rendered by the master and the large amounts involved in these causes, after viewing the records and considering the circumstances disclosed, we cannot doubt that the allowances are much too large certainly twice and three times what they should be. If the time devoted to the entire service 282 days be accepted as equivalent to one year, the total allowance is 15 times the salary of the trial judge and 8 times that received by justices of this court. It may be compared to the compensation of the mayor of New York City, $15,000, the salaries of the Governor and members of the Court of Appeals of New York, $10,000, and the $17,500 paid to judges of the Supreme Court in the City of New York. Although none of these can be taken as a rigid standard, they are to be considered when it becomes necessary to determine what shall be paid to an attorney called to assist the court. His duties are not more onerous or responsible than those often performed by judges."
Another important factor in the compensation of the receiver is the time devoted to the work and the character of the work performed. Does such appointment exclude the appointee from carrying on other work? Is the appointee thus named, a receiver in other suits? Are the appointees engaged in business, and does the appointment terminate such participation? Another matter Does the performance of the receivership call for special knowledge and special training? If so, does the receiver who is appointed qualify? A single illustration will suffice. A president of a railroad has reached his position after forty years of service. He has devoted his entire life and all his time to the transportation business. His road goes into receivership, and he is named receiver. He continues to devote his entire time, and his experience is as valuable as a receiver as it was as president of the railroad. Under such circumstances, the court must of course consider the compensation which the appointee received as president of the railroad. The same applies to the receiver of any other utility. If the appointee be an engineer or an operator, whose years of experience especially qualify him and he has technical training supplementing such experience, and he gives all of his time to the task, he should be paid more than one who, though entitled to the confidence of the court, is not equally qualified to render the service for which the technical experience of the engineer qualifies him. Nor should one award the same compensation to an outsider who does not devote all of his time to the management and operation of the company.
Moreover, the success of the receivership can not be entirely overlooked in determining the fees which should be allowed, although at times the importance of this factor is often greatly exaggerated, and at times, though rarely, it has been underestimated.
And finally, in determining compensation, it must be kept in mind that 1933 is not 1929. The wages and salaries of all kinds were much lower in 1932 than in the twenties. The difference must be reflected in the compensation of receivers and their counsel, as it is in other fields.
Mr. Fentress as receiver in equity charged and received $12,500. As receiver in the ancillary proceedings, his bill is $7,500. As receiver in bankruptcy, he asks $10,000. *662 In all three proceedings he served for a period of eleven months.
Mr. Fentress devoted eleven months to all three services. He has received $12,500. He has not severed his connection with the business house of which he was an officer. Considering what has been said, I am of the opinion that Mr. Fentress has received all the compensation the court should allow him. In other words, I fix the value of his services at $12,500 in this case. This sum he has received. No further allowance will be made.
In view of what has already been stated on the subject of receivers' fees, little need be said of lawyers' fees.
Receiverships, as far as fees are concerned, are of two kinds. One class calls for administrative work such as the operation of a manufacturing plant or the running of a public utility. Here the receiver renders the greater service. In the other class of cases, the problems are legal in nature and demand the rendition of legal services in following assets which have disappeared or which have been transferred, etc. In the latter class, the attorneys render the more important service.
The legal services rendered in this case, while entirely worthy and evidencing ability, were devoted to maintaining the status quo rather than to the recovery of the securities hypothecated with the secured creditors. No increase in the assets of the estate resulted from the services of counsel or receiver. This fact is most significant. Compensation should be generous when the attorneys, through their efforts, create the estate to be administered. When their services are rendered without hope of compensation unless they are successful in creating the estate to be administered, their compensation should be still larger. For under such circumstances the attorneys work on a contingent or a nearly contingent basis.
Each firm has filed itemized statements setting forth the time devoted to the case. Each firm has received $12,500. The firm of Cassels, Potter & Bentley ask for a further allowance of $5,000; while Allen & Dalbey pray an allowance of $9,000.
Under numerous authorities there was no ground for the appointment of a receiver in the bankruptcy matter. In re E. H. Walsh, Inc. (C. C. A.) 295 F. 504; In re Gochenour (C. C. A.) 64 F.(2d) 500; Ingram v. Ingram Dart Lighterage Co. (D. C.) 226 F. 58; In re Federal Mail Co. (D. C.) 233 F. 691; Collier, Bankruptcy, Supplement, p. 23. The rule seems to be that receivers in bankruptcy matters will not ordinarily be appointed where there are duly appointed receivers in possession of the property. The statute itself (Bankr. Act § 2, subd. 3, 11 USCA § 11 (3), provides limitations on the powers of the court to make appointments. It provides for the appointment of "receivers or marshals, * * * in case the courts shall find it absolutely necessary, for the preservation of estates, to take charge of the property of bankrupts * * *."
Likewise, the duties of the receiver and his attorneys are limited quite different from those of a receiver in the ordinary equity suit or from those of a trustee subsequently named in the bankruptcy matter. In re Marcuse & Co. (C. C. A.) 11 F.(2d) 513.
The bankrupt estate for which the receiver was appointed and for whom the attorneys rendered their services consisted of stocks, notes, and bonds of various public utilities. These assets required little or any service, legal or otherwise, to protect them pending the election of the trustee in bankruptcy. They were not perishable commodities. It is inconceivable that any considerable amount of time was necessarily devoted to the protection or preservation of these securities by counsel or receiver.
Under all the circumstances the court finds that the allowance of $12,500 in each case is sufficient. The court concludes that further allowance in either case would be unjustifiable.
The court finds there was no collusion in the naming of counsel. In fact, the firm of Cassels, Potter & Bentley was not appointed until some weeks after the receivers were named. The objector Ettelson, in open court, disavowed all intention of involving this firm in the collusion charges.
Expenses and disbursements have been incurred by counsel as well as receiver. No objection is made to either the amount or to any item. They will be allowed.
An order will be entered refusing further allowance of fees to receiver and refusing further allowance to counsel. The same order will provide for the payment of said expenses and disbursements. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264688/ | 879 F.Supp. 621 (1995)
Lafeldt RUDD, Plaintiff,
v.
Bill JONES, Circuit Court Judge; Rayburn (Tud) Hillman; Richard (Tim) Byrd; and Scharlotte Fortinberry, Defendants.
No. 2:94cv184.
United States District Court, S.D. Mississippi, Hattiesburg Division.
March 15, 1995.
*622 Lafeldt Rudd, Parchman, MS, pro se.
ORDER
PICKERING, District Judge.
Upon consideration of the conditions of confinement complaint filed pursuant to 42 U.S.C. § 1983 by plaintiff in the above entitled action, the application of plaintiff for leave to proceed in forma pauperis, and the supporting affidavit submitted pursuant to 28 U.S.C. § 1915, the court makes the following findings and conclusions.
Without question, inmates confined in penitentiaries are entitled to the protection of the rights afforded them by the United States Constitution. These rights of necessity have been limited by virtue of an inmate's conviction and/or plea of guilty to a crime. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Inmates are no longer presumed innocent, but by virtue of their convictions, they are now presumed guilty. Herrera v. Collins, 506 U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)). Law abiding citizens also have rights. Drennan v. Hargett, 852 F.Supp. 1332 (S.D.Miss.1994). These rights involve not having court calendars clogged with frivolous proceedings and not having their elected or appointed officials, at taxpayers' expenses, spending a disproportionate amount of time defending frivolous lawsuits in federal court.
In protecting the constitutional rights of prisoners over approximately the last 35 years, the very process of doing so has created some unfortunate side consequences of considerable magnitude. First, it is obvious from petitions filed in this Court that unrealistic expectations and imaginary rights have been created in the minds of many inmates. Secondly, it is likewise clearly obvious that many inmates and their sometimes almost professional jailhouse writ writers have abused the process merely to go through the exercise, challenge the system again, or get a trip out of the penitentiary for a court hearing. The Court sees this type activity on a regular and frequent basis.
Third, the courts are drowning in frivolous prisoner complaints. In 1960, 1,295 cases were filed in the federal courts by prison inmates. This constituted 2.1 percent of the cases filed that year in the federal courts. In 1993, 53,713 cases were filed by prison inmates in federal courts, constituting 23.3 percent of all civil cases filed in the federal court system.[1] Although the Court has attempted to obtain the number of cases that have been dismissed as frivolous pursuant to 28 U.S.C. § 1915(d), these figures are not available through the Administrative Office. In this District alone (Southern District of Mississippi), during the past twelve months there were 633 complaints filed in federal court by prison inmates constituting almost thirty percent of the total civil filings of 2,134. The overwhelming majority of these prisoner complaints were dismissed as frivolous.
Statistics are unavailable to determine how many additional federal judges have been added because of frivolous prisoner complaints. The cost to taxpayers is enormous. Multitudinous frivolous cases endanger the occasional meritorious case that comes along. Drennan v. Hargett, 852 F.Supp. 1332, 1336 (S.D.Miss.1994) (quoting McCleskey v. Zant, 499 U.S. 467, 492, 111 S.Ct. 1454, 1469, 113 L.Ed.2d 517, 543). There is a danger that the meritorious case may get lost in the deluge of frivolous cases that the courts see.
Fourth and finally, state officials who have contact with the state criminal justice system, which is the system primarily responsible for dealing with the ever-increasing criminal activity in the United States[2] and the *623 criminals responsible for the commission of these crimes, are now finding that a good portion of their time, effort and the money appropriated to run their offices is spent defending federal lawsuits arising from mostly frivolous prisoner complaints.
This Court is committed to protecting the valid constitutional rights of prison inmates. This Court is likewise committed to stopping those lawsuits that are frivolous.
This particular complaint of Lafeldt Rudd is a confusing, rambling petition that is barely coherent. Attached to his complaint are numerous other petitions and complaints previously filed by this plaintiff indicating that he may well like the process whether he has a meritorious claim or not. This complaint is couched in conclusory terms and expresses the plaintiff's opinions, feelings and conclusions, but not very much in the way of specific hard facts. The complaint now before this Court could be construed to state a cause of action under the premise that a pro se plaintiff is entitled to have his complaint liberally construed, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); however, based upon previous experience with complaints that are couched in such a highly conclusory fashion, this Court is aware that plaintiffs in such cases are very rarely successful and very seldom come forward with any facts that would even justify a trial. This Court has determined that the defendants should not be compelled to defend this action and neither should this Court be expected to conduct a hearing, until plaintiff alleges with particularity and specificity what these defendants did or did not do that violated plaintiff's constitutional rights. Until that is done this Court will not allow this proceeding to go any further.
Under no circumstances can this complaint be maintained against the named defendant Bill Jones, who is the Circuit Court Judge for Greene County, Mississippi. It is clearly established law that a judge is absolutely immune from damages when he was acting within his judicial discretion. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). The plaintiff is allowed to amend his complaint as to the remaining defendants as set forth below. It is, hereby,
ORDERED AND ADJUDGED:
1. That the defendant Bill Jones be dismissed with prejudice as a party to this action.
2. That the plaintiff within twenty (20) days of the date of this Order shall file his amended complaint which must (a) specifically allege who violated the plaintiff's constitutional rights; (b) state the approximate dates, times and places the named person violated his constitutional rights; and (c) specifically identify the constitutional right(s) that were allegedly violated. This amended pleading should be relatively brief, very specific and relate what facts or events occurred that caused plaintiff's constitutional rights to be violated and should not be couched in conclusory terms nor just what the plaintiff thinks or concludes;
3. That the plaintiff be and he is hereby advised that he should make no allegations unless he can produce some evidence to support such allegations. This evidence may consist of testimony or documentary evidence, but broad, non-specific, conclusory statements will not be sufficient for plaintiff to meet his burden. Parties who file frivolous actions are subject to sanction by this Court.
4. This Court finds that the requirements contained in numbered paragraphs 2 and 3 above do not constitute an unreasonable restriction on plaintiff's access to the courts, particularly in light of the fact that this plaintiff has filed numerous other complaints in this Court which have been dismissed as frivolous.
5. The plaintiff is warned that failure to timely comply with this Order shall result in this cause being dismissed with prejudice without further written notice.
SO ORDERED.
NOTES
[1] Statistical Division of Administrative Office of U.S. Courts.
[2] During a 30-year period, from 1964 to 1994, the population in America increased by roughly 37%. On the other hand, violent crime increased 500% or 13½ times as rapidly as the population has grown. Statistical Abstracts of the United States, 1994 and 1964. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264691/ | 879 F.Supp. 403 (1995)
SPEAR, LEEDS & KELLOGG, Plaintiff,
v.
CENTRAL LIFE ASSURANCE COMPANY, Alexander Hamilton Life Insurance Company of America, Inc. and Canada Life Assurance Company, Defendants.
No. 94 Civ. 0868 (KTD).
United States District Court, S.D. New York.
March 30, 1995.
Dickstein, Shapiro & Morin, New York City (Howard Schiffman, Woody N. Peterson, Jeffrey A. Spector, of counsel), Washington, DC, and Rogers & Wells, New York City (John M. Quitmeyer, Barry W. Rashkover, of counsel), for plaintiff Spear, Leeds & Kellogg.
John J. Phelan, III, P.C., New York City and Weisenfels & Vaughan, P.C., Kansas City, MO (J. Michael Vaughan, of counsel), for defendants Central Life Assur. Co., Alexander Hamilton Life Ins. Co. of America, Inc., Canada Life Assur. Co.
MEMORANDUM & ORDER
KEVIN THOMAS DUFFY, District Judge.
Plaintiff Spear, Leeds & Kellogg ("SLK") seeks a preliminary injunction against three life insurance companies: Central Life Assurance Company, Alexander Hamilton Life Insurance Company of America, Inc., and Canada Life Assurance Company, (collectively referred to as "Defendants"). Plaintiff seeks to enjoin Defendants from compelling Plaintiff of submit to arbitration. For the reasons stated below, Plaintiff's motion for a preliminary injunction is granted.
Plaintiff is a registered futures commission merchant and a member of the New York Stock Exchange ("NYSE" or "Exchange"). As such, is subject to the Constitution of the New York Stock Exchange ("NYSE Constitution") and the Exchange Arbitration Rules ("NYSE Rules"). Defendants are life insurance companies who are not members of the NYSE. Pursuant the NYSE Constitution and Rules, Defendants filed an arbitration demand seeking recovery of monies they paid out on life insurance policies of a customer of SLK. Plaintiff claims that it is not subject to NYSE arbitration because it has no transactional nexus with Defendant, and therefore, the NYSE Constitution and Rules relied upon by Defendant do not apply.
Plaintiff opened a commodities account for Marvin Goodman in 1990. Prior to opening the account, SLK states that they conducted a background check on Goodman, and found no financial or regulatory problems. Plaintiff set up Goodman's account in the same way that Goodman's previous account with Balfour Maclaine Futures, Inc. ("Balfour"), also a NYSE member, was established. Goodman transferred his account from Balfour to Plaintiff. Goodman maintained various subaccounts with Plaintiff, all of which bore his name and social security number. Some of these subaccounts had debit balances *404 and some had credit balances. According to Plaintiff, SLK sent these account statements on a regular basis to Goodman and to people specified by Goodman.
Goodman had also obtained life insurance policies from Defendants and others in excess of $23 million. Part of the applications for the life insurance required Goodman to supply Defendants with his financial statements. Apparently, Plaintiff's account statements were among those submitted by Goodman. Defendants supplied $3 million and upon Goodman's sudden death were required to pay $1.9 million to the policy beneficiaries. Many of the recipients of this money were clients of Goodman's for whom he had made various investments. Goodman apparently hid from his clients that their investments had lost money. According to Plaintiff, Goodman had been "doctoring" the account statements when he received them from SLK and sending out inaccurate statements to his clients. SLK alleges that they knew nothing of Goodman's actions until after his death. Defendants allege that Plaintiff either falsified the documents or knew of the falsification and seeks to hold SLK liable for the amounts paid out on the insurance policies. To this end, Defendants filed a "Statement of Claim" in an arbitration demand with the NYSE. The instant action to enjoin arbitration followed.
DISCUSSION
The standard for granting a preliminary injunction is well settled in this Circuit. The plaintiff must show "(1) irreparable harm and (2) likelihood of success on the merits." Reuters, Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir.1990) (quoting Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 314-15 (2d Cir.1982)). In the alternative, the plaintiff must show that there are "sufficiently serious questions going to the merits to warrant litigation and a balance of hardships in favor of the movant." Roso-Lino Beverage Distributors v. Coca-Cola Bottling Co., 749 F.2d 124, 125 (2d Cir.1984).
If a court determines that a valid arbitration agreement does not exist or that the matter at issue clearly falls outside the substantive scope of the agreement, it is obliged to enjoin arbitration. PaineWebber Inc. v. Hartmann, 921 F.2d 507, 511 (3d Cir.1990). (hereinafter referred to as "Hartmann"). In the present case, there is no agreement between the parties, and thus, no arbitration clause to bind the parties. A party cannot be required to submit to arbitration any dispute which he has not agreed to so submit. AT & T Technologies, Inc. v. Communications Workers of America, et al., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986). A party so situated will suffer per se irreparable harm if a court compels the party to submit to arbitration when it has not agreed to do so. See Hartmann, 921 F.2d at 515. Never having agreed to arbitrate, SLK will suffer irreparable harm if it is forced to submit to arbitration.
The second factor to be considered on a preliminary injunction motion is whether Plaintiff has a likelihood of success on the merits. The determination of, whether a matter is arbitrable is one to be made by the court. Litton Financial Printing Division v. NLRB, 501 U.S. 190, 208, 111 S.Ct. 2215, 2226, 115 L.Ed.2d 177 (1991). Both the Constitution and the Rules are clear and unambiguous as to the arbitration of disputes. The issue lies in whether there is a sufficient relationship between the member (Plaintiff) and the non-member (Defendants).
It is undisputed that Plaintiff never had any direct contact or business transaction with Defendants. Goodman obtained the life insurance policies independently of Plaintiff and without Plaintiff's knowledge. Defendants do not claim they were customers of Plaintiff.[1] Defendants do not claim there was any contractual relationship with Plaintiff. In fact, Defendants do not allege any contact with Plaintiff at all. Rather, Defendants claim that their reliance on falsified documents, whether by the fraudulent conduct of Goodman or that of Plaintiff, makes Plaintiff accountable to Defendants.
*405 Defendants issued various life insurance policies to Goodman which named various trusts as the beneficiaries. Upon Goodman's death, Defendants paid the proceeds of the insurance to the trusts. The requirements of the trusts resulted in the money being paid to Goodman's customers. Defendants seek to hold SLK liable for the misdeeds of its customer. Whether Defendants claims have merit is not for me to determine. The matter before me involves solely the arbitrability of Defendants' claims.
In order for Defendants to compel Plaintiffs to submit to arbitration, they must show that the relationship between the parties is of the nature specified in the NYSE Constitution and the Rules. See Paine, Webber, Jackson & Curtis, Inc. v. The Chase Manhattan Bank, N.A., 728 F.2d 577, 580 (2d Cir.1984) (hereinafter referred to as "Paine, Webber"). The NYSE Constitution, art. XI, ¶ 1501, § 1 provides, in pertinent part:
... any controversy between a member ... and any other person arising out of the business of such member ... shall at the insistence of any such party be submitted for arbitration in accordance with the provisions of this Constitution and such rules as the Board may from time to time adopt.
Id.
The Rules state substantially the same provision:
(a) Any dispute, claim or controversy between a non-member and a member ... arising in connection with the business of such member ... shall be arbitrated under the Constitution and Rules of the New York Stock Exchange, Inc. as provided by any duly executed and enforceable written agreement or upon the demand of the nonmember.
Id.
The question becomes whether the dispute between Plaintiff and Defendant "arises out of" the business of Plaintiff. This is a case of first impression and one that was expressly left open by the Court of Appeals in Paine, Webber. 728 F.2d at 580 n. 5. If the claims arise out of the business of Plaintiff, then the matter must be arbitrated. However, if it is determined that the claims do not arise out of Plaintiff's business, Plaintiff cannot be forced to submit to arbitration. Defendants base their claims on the fact that financial statements generated originally by Plaintiff were apparently supplied to them by Goodman. There is a question as to when the documents were altered. Defendants assert that the documents were prepared falsely by Plaintiff. Plaintiff states that it provided Goodman with accurate account statements, and that it learned subsequently that the documents were altered and sent to Defendants.
Defendants mischaracterize the role of the NYSE Arbitration system. They cite to the presumption in favor of arbitration, and argue that the court should defer to the presumption. (Def.'s Mem.Opp'n Prelim.Inj. at 9); see Pearce v. E.F. Hutton Group, Inc., 828 F.2d 826, 829 (D.C.Cir.1989). Defendants' reliance is misplaced. In Pearce, the Court applied the presumption due to the existence of an arbitration agreement between the parties. Id. The statement emphasized by Defendants that the NYSE is an example of an industry that effectively utilizes an arbitration system is accurate, but nonetheless is inapplicable to this situation. The Pearce court also noted that "arbitration is a creature of contract." Id. (citing Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1984)). Given the absence of a contract between the parties, there is no presumption of arbitrability.
In determining the arbitrability of the claims, I look not to the merits of each party's case, but to the nature of the dispute and the people involved. The absence of any agreement whatsoever is fatal to Defendants' case. There is no indication that Plaintiff intended that the NYSE Constitution and Rules be applicable with regard to Defendants. This is because Plaintiff never transacted any business with any of the defendants. In fact, there is no indication that Plaintiff even knew that Goodman had obtained life insurance, much less be subject to arbitration of a dispute resulting therefrom. To rule otherwise would lead to the absurd: "[A]ny rule extending the arbitration provisions to controversies not arising out of exchange-related *406 business would do significant injustice to the reasonable expectations of exchange members. Such a rule would require every exchange member, at the insistence of the nonmember, to submit to exchange arbitration every dispute it has with any entity in the world, no matter what the subject matter." Paine, Webber, 728 F.2d at 581.
The arbitration provision contained in the NYSE Constitution and Rules which provides for arbitration between members and nonmembers has largely been applied in purchase and sale of securities. See Paine, Webber, 728 F.2d at 579, 580. In these cases, the NYSE Rules on Arbitration were incorporated by reference and made part of the agreements. Id. at 580. Here there is no agreement, no sale, and therefore no contractual obligation to arbitrate.
Plaintiff is bound to abide by the NYSE Constitution and Rules. However, it is not bound to Defendants in any way. The fact that Goodman supplied Defendants with incomplete or inaccurate financial statements does not rise to the level necessary to involve the creator of the original documents. In all its papers, Defendants do not once refer to the existence of any transaction or business with Plaintiff. I cannot find any relationship between the NYSE member and the nonmember, except that the nonmember was the insurance carrier of a customer of the member. There is no authority establishing the point at which a sufficient nexus is reached between the parties to warrant NYSE arbitration, but wherever that point may be, this situation is far from it. Accordingly, Plaintiff's motion for a preliminary injunction enjoining Defendants from compelling them to submit to arbitration is granted.
SO ORDERED.
NOTES
[1] At one point in their brief, Defendants argue that they "stand in the shoes" of the customers, but this argument is unfounded. (Def.'s Mem. Opp'n Prelim.Inj. at 26); see 16 Couch, Cyclopedia of Insurance § 61:8 (2d rev. ed. 1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356090/ | 290 S.E.2d 616 (1982)
EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA
v.
Betty LACHMAN.
No. 146A81.
Supreme Court of North Carolina.
May 4, 1982.
*618 T. S. Whitaker and Garland D. Crenshaw, Raleigh, for plaintiff-appellee, Employment Sec. Commission.
Blanchard, Tucker, Twiggs, Denson & Earls, P. A. by Irvin B. Tucker, Jr., Raleigh, for defendant-appellant, Betty Lachman.
MEYER, Justice.
Betty Lachman was discharged from her job with the ESC by letter dated 24 February 1978. After exhausting all internal grievance procedures provided by the ESC, she appealed to the State Personnel Commission. Her appeal was heard on 19 April 1979 by E. D. Maynard III, hearing officer for the State Personnel Commission.
The hearing officer made twenty-nine Findings of Fact, a summary of which follows: Ms. Lachman was a former employee of the ESC who had worked as a records clerk in the Claims Division. At approximately 2:00 p. m. on 23 February 1978, Ms. Minda Bunn, Ms. Lachman's supervisor, asked Ms. Lachman whether she had begun working on some reports, the processing of which had been delayed due to problems with a computer. Ms. Lachman replied that she could not do this work because she felt ill.
Ms. Bunn then went to see Mr. Hugh Ogburn, Chief of the Benefits Division, who had informed Ms. Lachman in January that the reports needed to be processed as quickly as possible, about what she felt was Ms. Lachman's refusal to perform her work. She could not see Mr. Ogburn then, but did discuss the situation with Mr. Carl Light, Assistant to Mr. Ogburn. They both then talked to Mr. Ogburn, who suggested that Mr. Light have a meeting with Ms. Lachman and Ms. Bunn, at which time Ms. Bunn would again instruct Ms. Lachman to process the reports. Mr. Light then had Mr. Allen Marshburn find Ms. Lachman and bring her to a meeting in Mr. Light's office.
Present at this meeting were Ms. Lachman, Ms. Bunn, Mr. Light and Mr. Marshburn. When Ms. Lachman arrived at the meeting at approximately 2:30 p. m., Mr. Light asked her how she was. She replied that she did not feel well. Mr. Light said that Mr. Ogburn wanted the reports by the end of the month, and he did not want Mr. Ogburn angry with him if they were not ready. Mr. Light said that he wanted Ms. Lachman to do the reports. She then told Mr. Light that she was feeling faint, dizzy and nauseous, and that work with the computer required by the reports would aggravate these symptoms. Mr. Light then stated that the reports had to be done and asked Ms. Lachman why she was at work if she were sick. Mr. Light suggested that if she were sick, she should take sick leave and go home. Ms. Lachman said that she could still do routine work and that as long as she could do some light work, she didn't feel it was necessary to go home. Mr. Light reiterated that he felt that if Ms. Lachman were sick, she should be at home. Ms. Lachman disagreed and said that she felt that she should stay at the office as long as she could do some work, and that she should stay, even if she couldn't process the wage reports. Mr. Light then said he was going to let Ms. Bunn tell Ms. Lachman what to do. Ms. Bunn told her she had to do the wage reports by hand if necessary. Ms. Lachman and Ms. Bunn then discussed this; Ms. Lachman told Ms. Bunn that because she was dizzy, disoriented and nauseous, she could not work with the computer. Mr. Light then told Ms. Lachman if she couldn't do the reports she would have to take sick leave. Ms. Lachman replied that she did not feel she should have to take sick leave in that she was able to do some work and was not contagious. Ms. Lachman told Mr. Light that she had already used the sick *619 leave that she had accumulated in January and February of that year. Feeling (for whatever reason) that this conversation was leading to her dismissal, Ms. Lachman told Mr. Light that he could fire her if he wanted to, but that she was not able to do the requested work. Mr. Light responded that Ms. Lachman could either go to the computer and do the work or she could go home on sick leave.
Although no one but Ms. Lachman had mentioned her dismissal in this meeting, she took Mr. Light's last remark to mean that she was dismissed. Ms. Lachman then said that she would go home and stay. Mr. Light, thinking that she was resigning, told Ms. Lachman that if she was quitting he wanted a written statement to that effect; Ms. Lachman's response was that she didn't want to make a statement, that she had said all she had to say.
Ms. Lachman then went to her desk, removed her personal effects and left the building. This was at approximately 3:00 p. m. Ms. Lachman's usual quitting time was at 4:45 p. m. Ms. Bunn observed Ms. Lachman cleaning out her desk and leaving but did not question her about this.
At the conclusion of the meeting, Mr. Light did not believe Ms. Lachman was resigning; it was his impression, from similar past incidents, that she was leaving on sick leave, and would report the next day.
When Ms. Lachman left the meeting on 23 February 1978, she believed she had been dismissed. However, no one had told her this, and she was the only person to bring up the subject of dismissal in the meeting.
Ms. Lachman did not report to work the next day; neither did she call in to notify anyone that she would not report for work. She did not go to work because she believed that she had been dismissed, and therefore, that she was not expected to call in.
Ms. Lachman made a doctor's appointment the next day. That morning, before going to the doctor, she went to the ESC business office and turned in her weekly and monthly time sheets to Ms. Merle Martin. She did this in order to get her check for that month on her regular pay day. Ms. Lachman told Ms. Martin that she was handing in her time sheets because she had been terminated. Sometime later, the ESC Personnel Officer, Mr. James McGaughey, came by Ms. Martin's office. Ms. Martin mentioned that Ms. Lachman had come in and handed in her time sheets, and that these needed to be taken to Ms. Lachman's unit. Mr. McGaughey commented that it appeared Ms. Lachman had "abandoned" her job, and offered to take the sheets to the Benefits Division.
Mr. McGaughey took Ms. Lachman's time sheets to Mr. Light. Mr. Light then went to Mr. Ogburn and told him that it appeared that Ms. Lachman had quit. Mr. Light made this observation based upon Ms. Lachman's failure to report for work or to call in, and her turning in her time sheets. Mr. Ogburn asked Mr. Light to furnish him with a memorandum of the events which led up to the situation on 24 February 1978. Mr. Light gave Mr. Ogburn a memorandum as requested later that day. In this memorandum, Mr. Light recommended that Ms. Lachman be dismissed. Sometime that afternoon, Mr. Ogburn sent Ms. Lachman the following letter dismissing her:
Dear Ms. Lachman:
On February 23, 1978, you refused to accept a reasonable and proper assignment of work from an authorized supervisor of this Agency. This action on your part is a direct act of insubordination. Immediately after refusing this assignment of work, you removed your personal belongings from your desk and left the building at approximately 2:45 p. m.
Since you failed to report for work or call in on February 24, 1978, we consider this action as an indication of your intention to abandon the job. We have, therefore, terminated you as of 4:45 p. m. on February 23, 1978.
Sincerely,
Hugh D. Ogburn
(Emphasis added.)
At no time did anyone in the Benefits Division attempt to contact Ms. Lachman or to ascertain the reason for her absence on *620 24 February 1978. Ms. Lachman did visit a doctor on 24 February 1978; he diagnosed her condition as bronchitis with "involvement of the inner ear." She had suffered from bronchitis periodically and as a result of this, she was not able to accumulate sick leave. Ms. Lachman's earlier bouts with bronchitis had depleted her earned sick leave for the first two months of 1978. This was the reason she had no earned sick leave on 23 February 1978. However, she did have sick leave for 1978 which could have been advanced to her to cover an absence.
Ms. Lachman appealed her dismissal through the ESC's departmental grievance procedure. Following final adverse agency decision, she appealed her dismissal to the State Personnel Commission, alleging lack of just cause for her dismissal.
Based on the above Findings of Fact, the hearing officer made the following five Conclusions of Law:
1. Under the authority of North Carolina General Statutes § 126-35 and 37, the State Personnel Commission has jurisdiction to hear and decide Petitioner's [Ms. Lachman] appeal.
2. Respondent [ESC] dismissed Ms. Lachman by letter on February 24, 1978. The letter of dismissal is clear on its face that Respondent dismissed Petitioner for `abandoning' her employment. Although Ms. Lachman's alleged insubordination is mentioned in the letter of dismissal, that letter is so written that the only reasonable construction which can be made is that Petitioner was dismissed solely for `abandoning' her employment.
3. Respondent, however, contends that Ms. Lachman, was also dismissed for insubordination. Even if all of Respondent's evidence which was offered on this point is accepted as true, Respondent has not carried its burden of proving an insubordinate act of Petitioner on February 23, 1978. Insubordination is defined in the State Personnel Policy Manual as `[R]efusal to accept a reasonable and proper assignment from an authorized supervisor.' Employee Relations, pages 5-6. Insubordination carries the clear implication that the refusal which is the basis of the offense is a willful refusal; that is, the employee was faced with a choice of performing or not performing a given order (without such outside considerations as broken equipment, ill health, unavailability of necessary materials, etc.) and willfully chose not to obey the reasonable order of an authorized supervisor. Respondent has not shown such a willful refusal in this case. At most, Respondent has shown that Petitioner was unable, but did not refuse, to perform the work requested. Being unable to perform a reasonable work order does not denote a refusal or insubordination. Therefore, even if Ms. Lachman had been dismissed for insubordination, which she clearly was not, Respondent did not carry the necessary burden of proof.
4. Respondent had the burden of proving Petitioner `abandoned' her employment. Had Respondent not dismissed Ms. Lachman on this basis, it would have been possible for Respondent to treat Petitioner's actions as constituting a voluntary resignation without notice. If Ms. Lachman had then appealed, Petitioner would have had the burden of proving that she did not resign, but had been dismissed instead. However, Respondent chose to dismiss Petitioner, and therefore, must carry the burden of proving that she abandoned her job.
5. This hearing officer is not familiar with the charge that an employee has `abandoned' his employment. However, it may be assumed that an `abandonment' is similar to a voluntary resignation. Respondent must prove Ms. Lachman left her employment with the intention not to return. Respondent has shown that Petitioner's actions on February 23, 1978 and February 24, 1978 gave rise to the inference that Ms. Lachman had quit her job. However, this is all that Respondent has shown. When Respondent chose to dismiss Petitioner for `abandoning' her job, it took on the burden of proving just cause to dismiss Petitioner for this charge. North Carolina General Statutes *621 § 126-35. Just cause requires more proof than an inference, or a conclusion. The burden of proof Respondent must meet is that the greater weight of the evidence must support Respondent's reason for dismissal. While the evidence of Ms. Lachman's actions supports Respondent's charge of job `abandonment', Petitioner's actions also support her contention that her actions were motivated by her belief that she had been dismissed. It cannot be said that the greater weight of the evidence proves Respondent's charge of job `abandonment'; the competent evidence gives equal support to the contentions of Respondent and Petitioner. In such a situation, Respondent has failed to carry the burden of proof to establish just cause.
Based on the twenty-nine Findings of Fact and five Conclusions of Law, the hearing officer recommended that the ESC reinstate Ms. Lachman to the same level position from which she had been dismissed, award her her net pecuniary loss, and reinstate all her benefits of employment such as annual and sick leave as if she had not been dismissed.
The ESC gave notice of appeal from this order, and oral arguments were heard on the matter by the full State Personnel Commission at its meeting of 17 August 1979. The Commission adopted the Findings of Fact and Conclusions of Law of the hearing officer as its own and entered essentially the same order as recommended by the hearing officer, with the additional provision that the letter of dismissal serve as a first-level reprimand for Ms. Lachman's conduct of 23 February 1978.
Pursuant to Article 4 of Chapter 150A of the General Statutes, the Administrative Procedure Act, the ESC appealed from the decision of the full Commission to the Superior Court, Wake County. While that court found that the ESC had made numerous exceptions to the Findings of Fact and Conclusions of Law of the hearing officer, it ruled that the appeal presented two primary issues of law for resolution: (1) whether the exclusion of three exhibits offered into evidence at the hearing was error, and (2) whether the record as a whole discloses that the Conclusions of Law are supported by the Findings of Fact.
The court ruled adversely to the Employment Security Commission which then gave notice of appeal to the Court of Appeals. That court, in an opinion filed 2 June 1981, ruled that the State Personnel Commission had no jurisdiction to hear Ms. Lachman's appeal and reversed and remanded the case to the Superior Court with directions that it order the State Personnel Commission to dismiss her appeal. This Court allowed Ms. Lachman's petition for a writ of certiorari on 3 November 1981.
The first question presented by this appeal is whether the State Personnel Commission had jurisdiction to hear Ms. Lachman's grievance appeal. We hold that it did. Therefore, the Court of Appeals erred in dismissing the appeal.
The Commission's jurisdiction was never challenged by either party in the proceedings below. The Court of Appeals ruled ex mero motu that the State Personnel Commission lacked jurisdiction because Ms. Lachman had not been continuously employed by the State for five years so as to come within the coverage of Chapter 126 of the General Statutes under which the appeal was brought. See G.S. § 126-5(d)(1).
Chapter 126 sets up a system of personnel administration for the State. G.S. § 126-5 defines the class of employees that are covered by the provisions of the chapter. Section 126-5(d)(1) provides:
(d) Except as to the policies, rules and plans established by the Commission pursuant to G.S. 126-4(1), 126-4(2), 126-4(3), 126-4(4), 126-4(5), 126-4(6), 126-7, and except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:
(1) An employee of the State of North Carolina who has not been continuously employed by the State of North Carolina for the immediate five preceding years.
*622 As correctly pointed out by the Court of Appeals, none of the exceptions mentioned in Section (d) apply to the case sub judice.
Article 8 of Chapter 126 provides the grievance procedure for State employees when their grievances do not allege discrimination because of age, sex, race, color, national origin, religion, creed, physical disability, or political affiliation. G.S. § 126-34. G.S. § 126-39 provides:
For the purposes of [Article 8], except for positions subject to competitive service and except for appeals brought under G.S. 126-16 and 126-25, the terms `permanent State employee,' `permanent employee,' `State employee' or `former State employee' as used in this Article shall mean a person who has been continuously employed by the State of North Carolina for five years at the time of the act, grievance, or employment practice complained of.
(Emphasis added.)
The Court of Appeals ruled that under this section and G.S. § 126-5(d)(1), Ms. Lachman had to be employed continuously by the State for the five years immediately preceding 24 February 1978 in order to avail herself of the grievance procedures established for State employees in Chapter 126.
Defendant Lachman correctly contends, and the Employment Security Commission conceded in oral argument, that the regulations promulgated under the Administrative Procedure Act make all ESC employees subject to competitive service. 1 N.C.A.C. 8C.0602(b)(1). Therefore, they are exempted from the five-year requirement and are covered by the grievance procedure established by Article 8 of Chapter 126. Indeed, G.S. § 126-39, supra, provides coverage for competitive service employees.
While it is true, as the ESC argues, that the record does not show affirmatively that Ms. Lachman was a competitive service employee, it does establish that she worked as a records clerk for the ESC. This Court takes judicial notice, pursuant to G.S. § 150A-64, that employees of the ESC are made subject to competitive service under Rule .0602(b)(1) of Title I of the North Carolina Administrative Code, Chapter 8, Subchapter C, as adopted by the State Personnel Commission, effective 1 February 1976. This Court also takes judicial notice, pursuant to G.S. § 8-4, of the federal statutory requirement of the establishment and maintenance of personnel standards on a merit basis in order for the ESC to qualify for federal funding. 42 U.S.C. § 503(a)(1)(1976); 29 U.S.C. § 49d(b)(1976). Our Legislature has accepted this requirement.
The Employment Security Commission shall be charged with the duty ... to do and perform all things necessary to secure to this State the benefits of [the federal act establishing the national employment system]. ... The provisions of the said act of Congress, as amended, are hereby accepted by this State ... and this State will observe and comply with the requirements thereof.
G.S. § 96-20.
There were sufficient facts before the hearing officer to establish the jurisdiction of the State Personnel Commission to hear Ms. Lachman's appeal. Contrary to the hearing officer's Conclusion No. 1, supra, however, the authority for its jurisdiction was under G.S. §§ 126-34 and 126-39 and not G.S. §§ 126-35 and 126-37.
Having thus determined that the State Personnel Commission had jurisdiction to hear Ms. Lachman's appeal, we must now determine whether the trial court correctly affirmed the decision of the Commission. The defendant contends that the trial court did not err in affirming that decision. On the other hand, the ESC argues that the court erred because, inter alia, the hearing officer erroneously (1) concluded that Ms. Lachman was fired solely for abandoning her job, (2) excluded certain exhibits and testimony offered into evidence by the ESC, and (3) qualified the definition of insubordination.
The issue presented by the ESC's first contention is whether the conclusion that Ms. Lachman was fired solely for job *623 abandonment is unsupported by substantial evidence in view of the entire record. G.S. § 150A-51(5). See Overton v. Board of Education, 304 N.C. 312, 283 S.E.2d 495 (1981). In ruling on this issue, we must consider all of the evidence, both that which supports the Conclusion of the hearing officer and that which detracts from it. Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). "The `whole record' test does not allow the reviewing court to replace the [Commission's] judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo." 292 N.C. at 410, 233 S.E.2d at 541.
We do not agree with the hearing officer's Conclusion that Ms. Lachman was dismissed solely for abandoning her employment (Conclusion No. 2, supra). Carl Light testified that he and Mr. Ogburn recommended that Ms. Lachman be dismissed based on her act of insubordination (refusing to either do the assigned work or take sick leave) and the apparent abandonment of her job. Moreover, contrary to the Conclusion of the hearing officer, we believe that the letter of dismissal, supra, clearly shows that the dismissal was for both insubordination and job abandonment.[2]
Ms. Lachman's contention that if insubordination had been the real reason she was fired, her superiors would not have waited until the next day to fire her is answered in the record by testimony indicating that since Ms. Lachman had walked out on a prior occasion and later called in to request leave, they did not know whether or not she would call in on this occasion. Conclusion No. 2 is not supported by the evidence in the record, and thus must be reversed. The only Conclusion that can be supported by the record is that Ms. Lachman was dismissed for both insubordination and job abandonment.[3]
Secondly, the ESC contends that the hearing officer erred in excluding three exhibits and testimony pertinent thereto relevant to the issue of insubordination offered by the ESC. We first address the admissibility of Exhibit No. 1, a memorandum to Ms. Lachman from Minda Bunn dated 23 January 1978 which reads as follows:
Attitude and Language Used in Presence of Accounting Department Personnel.
This will confirm my recent instructions for you to avoid any further contacts with our tax auditors in the Accounting Department. I have been informed that the vulgar language used and attitude shown in the presence of our tax auditors was unacceptable.
Upon the advice of Mr. Ogburn, you are to avoid any further contacts with our tax personnel whether in person or by telephone.
I am requesting that a copy of this report be placed in your personnel folder.
Copy to: Minda Bunn
Mr. Ogburn
Mr. McGaughey X
Ms. Bunn testified that after Ms. Lachman received this memorandum, she became less cooperative and did not do as much work as she had normally done prior to the memorandum.
The hearing officer ruled this evidence irrelevant and refused to consider it in reaching his decision. While the ESC does not contend that the excluded exhibit and testimony would prove that Ms. Lachman was guilty of insubordination on 23 February 1978, it argues that they tend to show that she had a "recent history of insolence, lack of cooperation with her supervisors, and a bad attitude generally." We agree that as evidence of her continuing insolent behavior toward her supervisor, the testimony and memorandum were relevant to her intentional insubordination on 23 February 1978 and should have been admitted and considered by the hearing officer. See *624 67 C.J.S. Officers § 133 (1978) (insubordination implies a general course of mutinous disrespectful or contumacious conduct).
The hearing officer also ruled that Exhibits Nos. 2 and 3 and the testimony relating to them were irrelevant. Exhibit No. 2 is an "interoffice communication" dated 29 July 1977 from Minda Bunn to Carl Light concerning Ms. Lachman:
EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA
INTEROFFICE COMMUNICATION
DATE: July 29, 1977
TO: Carl V. Light, Assistant Chief of Benefits
FROM: Minda W. Bunn, Clerical Unit Supervisor (V) MB
SUBJECT: Bettie L. Lachman, Records Clerk (III), Pos. No. 13280
This morning when the monthly checks were distributed and Bettie Lachman received the notice that she would not get an increment, she said, `That damn bitch in yonder kept me from getting my f______ money, I'm' .... I then interrupted her and told her to watch her language. She told me, `You had better watch yours.' I told her that `You had better shut up.' Nothing further was said by either of us pertaining to the above conversation. She later laid the attached note of apology on my desk. This memo is for whatever action you deem necessary.
7-29-77 s/Mr. McGaugheyCVL
Exhibit No. 3 is the note from Ms. Lachman to Minda Bunn referred to in Exhibit No. 2:
I'm sorry I Out(Illegible)I appoligize But I ain't never been more mad!! `I get mean when you mess with my green' as Margaret says.
Can I appeal this in anyway??
Ms. Bunn testified that on 29 July 1977, Ms. Lachman became angry with her and left the work unit, apparently because she did not get a pay raise. The exhibits were written pursuant to this incident. The ESC argues that "for essentially the same reasons" that the hearing officer should have considered Exhibit No. 1 and the testimony relative thereto, he should have considered this testimony and Exhibits 2 and 3. We do not agree.
Exhibit No. 1 and the testimony relating to it were relevant to the issue of insubordination because they showed a recent pattern of an insubordinate and uncooperative attitude on behalf of Ms. Lachman. These exhibits and this testimony relate only to one incident of anger on the part of Ms. Lachman because she failed to receive a pay increase some nineteen months before the act of insubordination at issue. They have no tendency to show Ms. Lachman's insubordination on 23 February 1978, and the hearing officer correctly refused to consider them. However, because of his erroneous refusal to consider Exhibit No. 1 and the testimony pertinent to it, a new hearing must be conducted in this matter. G.S. § 150A-51.
Thirdly, the ESC argues that the hearing officer erred in qualifying the definition of insubordination as set out in the State Employee's Handbook, "Refusal to accept a reasonable and proper assignment from an authorized supervisor." (Conclusion No. 3, supra) After stating this definition, the hearing officer went on to conclude:
Insubordination carries the clear implication that the refusal which is the basis of the offense is a willful refusal; that is, the employee was faced with a choice of performing or not performing a given order (without such outside considerations as broken equipment, ill health, unavailability of necessary materials, etc.) and willfully chose not to obey the reasonable order of an authorized supervisor.
While we agree that the refusal which is the basis of the offense is a willful refusal, see 44 C.J.S. Insubordination (1945); 67 C.J.S. Officers § 133; 76 Am.Jur.2d Unemployment Compensation § 55 (1975), we do not agree that in order for the choice not to obey the authorized supervisor's reasonable order to be willful it must be made "without *625 such outside considerations as broken equipment, ill health, unavailability of necessary materials, etc." These considerations are factors in determining whether the order was reasonable, not whether the choice was willful.
The decision of the State Personnel Commission is affected by errors of law (1) in the exclusion of evidence and (2) in the qualification of the definition of insubordination. In addition, the Commission's Conclusion that Ms. Lachman was fired solely for job abandonment is unsupported by substantial evidence in view of the entire record. For these reasons there must be a new hearing. G.S. § 150A-51.
The panel below properly reversed the judgment of the trial court and remanded the cause, but for the wrong reason. The decision of the Court of Appeals is modified and the case remanded to that court for further remand to the Superior Court, Wake County, for the entry of an order requiring the State Personnel Commission to conduct, or cause to be conducted, a new hearing consistent with this opinion.
MODIFIED AND REMANDED.
NOTES
[2] Since the hearing officer ruled that the ESC had not proved job abandonment, and this ruling was based on substantial evidence, we consider only the ground of insubordination.
[3] See footnote 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356092/ | 162 Ga. App. 374 (1982)
290 S.E.2d 514
COUNIHAN
v.
DEPARTMENT OF TRANSPORTATION OF GEORGIA et al.
63246.
Court of Appeals of Georgia.
Decided April 21, 1982.
Rehearing Denied May 19, 1982.
Joseph B. Bergen, John J. Sullivan, for appellant.
Michael J. Bowers, Attorney General, Marion O. Gordon, Senior *376 Assistant Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Roland F. Matson, Assistant Attorney General, Fred S. Clark, for appellee.
McMURRAY, Presiding Judge.
This is a wrongful death action filed by the temporary administrator of the estate of the deceased who was killed in Chatham County in a motor vehicle collision when decedent's automobile slid on ice and was struck by several other vehicles. The named defendants were the Department of Transportation of Georgia, Chatham County, i.e., Chatham County Commissioners, the Administrator of Chatham County Public Works, individually and in that capacity, the Chatham County Administrator, individually and in that capacity, and the Chief of Chatham County Police, individually and in his capacity as chief of the county police. The deceased allegedly met her death as she approached the Bull River Bridge located on a highway within the County of Chatham, State of Georgia, when she lost control of her vehicle as the result of ice which the defendants had allegedly negligently allowed to accumulate on the bridge roadway causing the collision with the bridge and other vehicles, the decedent suffering fatal injuries as the result of same.
The suit against the Department of Transportation is based upon Code Ann. §§ 95A-304 and 95A-305 (Ga. L. 1973, pp. 947, 983; 1974, pp. 1422, 1428), which has reference to suits directly against the department, as well as the liability of the department for certain suits against counties.
In addition to the answers filed denying the claims both the Department of Transportation and Chatham County Commissioners filed motions to dismiss based upon sovereign immunity. After consideration of the motions to dismiss, in two separate orders, the trial court dismissed the action based on the ground of sovereign immunity as to the Department of Transportation and as to the remaining defendants, county commissioners, county police chief, county administrator and county public works chief, on the same ground. Plaintiff appeals. Held:
1. It is elementary that one cannot sue the state without the state's consent. However, it is the contention of the plaintiff that Code Ann. §§ 95A-304 and 95A-305, supra, constitute the consent of the sovereign to allow the Department of Transportation to be sued in a wrongful death action such as here. We cannot agree based upon *375 such cases as Tounsel v. State Hwy. Dept., 180 Ga. 112, 116 (178 S.E. 285); State Hwy. Dept. v. McClain, 216 Ga. 1, 6 (114 SE2d 125); Sikes v. Candler County, 247 Ga. 115 (274 SE2d 464); Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224); Miree v. United States of America, 242 Ga. 126 (249 SE2d 573); Crowder v. Dept. of State Parks, 228 Ga. 436, 439, 440 (185 SE2d 908). Compare National Distributing Co. v. Dept. of Transp., 157 Ga. App. 789 (278 SE2d 648), affd. s.c. 248 Ga. 451 (283 SE2d 470) (said case involving an ex contractu action rather than ex delicto).
2. The above and foregoing cases with reference to the Department of Transportation, as a subdivision of the state, likewise applies to the County of Chatham, i.e., the Chatham County Commissioners, as representatives of the state in their official capacity. See Revels v. Tift County, 235 Ga. 333 (219 SE2d 445); Crowder v. Dept. of State Parks, 228 Ga. 436, 439 (2), supra; Roberts v. Barwick, 187 Ga. 691 (2), 695 (1 SE2d 713). Compare Duffield v. DeKalb County, 242 Ga. 432 (249 SE2d 235). We are of the opinion that the law still is that there has been no waiver of sovereign immunity by legislation or otherwise or by court decree in order that the suit in the case sub judice may be maintained.
3. The three other officials of Chatham County in their official capacity are likewise clothed with governmental immunity based on such cases as Roberts v. Barwick, 187 Ga. 691 (2), supra; Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878); and Holloway v. Dougherty County School System, 157 Ga. App. 251 (277 SE2d 251), wherein the application of sovereign immunity to individuals in their official capacity was also considered. Under the above authority, we see no error in the court dismissing the complaint as to them in their capacity as officials of the county. That is, as "County Police Chief, County Administrator and County Public Works Chief." We presume there has been no dismissal of the defendants sued in their individual capacity and make no ruling thereon.
Until such time as the General Assembly or the case law authorizes such a suit against the state we are bound by the above decisions and find no authority in the briefs which would authorize us to reverse the trial court.
Judgment affirmed. Banke and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2761757/ | Cite as 2014 Ark. App. 735
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-724
EUGENE JONES Opinion Delivered December 17, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
SIXTH DIVISION
ARKANSAS DEPARTMENT OF [NO. JN2013-356]
HUMAN SERVICES AND MINOR
CHILDREN HONORABLE JOYCE WILLIAMS
APPELLEES WARREN, JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s termination of his parental rights to K.J.1
and K.J.2. 1 Appellant’s counsel has filed a motion to withdraw and a no-merit brief,
pursuant to Linker-Flores v. Arkansas Department of Human Services, 2 and Arkansas Supreme
Court Rule 6-9(i), 3 stating that there are no meritorious grounds to support an appeal.
The clerk mailed a certified copy of counsel’s motion and brief to appellant, informing
him of his right to file pro se points for reversal. Appellant failed to file pro se points for
1
The parental rights of the mother, Latasha Bankston, were terminated in the same
order, but she is not a party to this appeal.
2
359 Ark. 131, 194 S.W.3d 739 (2004).
3
(2011).
Cite as 2014 Ark. App. 735
reversal. We affirm the circuit court’s order terminating appellant’s parental rights and
grant counsel’s motion to withdraw.
K.J.2 was born to Latasha Bankston on July 5, 2012, weighing four pounds. Her
meconium tested positive for THC. Due to her gestational age of 32 weeks, K.J.2 was in a
neonatal intensive care unit with heart issues when a referral for investigation was made to
the Arkansas Department of Human Services (DHS). A family services worker made a true
finding of newborn illegal substance exposure as to K.J.2. A protective-services case was
opened on August 9, 2012, and appropriate services were provided. However, K.J.2 was
again admitted to Arkansas Children’s Hospital (ACH) on August 24, 2012, for severe acid
reflux and failure to gain weight; on September 5, 2012, for reflux; and on December 16,
2012, for a severe virus.
Throughout this time period, the hospital staff had had issues with the behavior of
Bankston and appellant, and DHS had had issues locating and communicating with both
parents. Accordingly, a medical staffing was held on January 17, 2013, following which
both parents were required to sign a behavior contract, the violation of which would
result in their restriction from the hospital.
Due to the appearance of mental instability on the part of Bankston, the controlling
nature of appellant, an inability to verify a home address for either parent to which K.J.2
could be released, and both parents’ lack of cooperation with ACH, Pulaski County
Home Health Unit and DHS, DHS took a 72-hour hold on K.J.2 on January 28, 2013. 4
4
DHS did not take a hold on K.J.1, believing that because he was not left in his
mother’s care alone, he could remain safe in the home.
2
Cite as 2014 Ark. App. 735
On January 31, 2013, DHS filed a petition for ex-parte emergency custody and
dependency-neglect as to K.J.2. The circuit court entered an ex-parte order for
emergency custody of K.J.2 on the same date; K.J.1 was permitted to remain in the
custody of Bankston and appellant.
Following a February 6, 2013 probable-cause hearing for K.J.2, the circuit court
entered a probable-cause order in which it took a 72-hour hold on K.J.1. Therein, it
found that probable cause existed, and still existed, to protect K.J.2. Also, because K.J.1
was in the home with Bankston and appellant, he was exposed to “the same dynamics of
the parent’s behaviors and interactions[,]” and because there was “[n]o credible evidence”
presented that K.J.1 was never left alone with Bankston, the court took a 72-hour hold on
K.J.1 at the hearing. 5 An order reflecting the same was entered February 6, 2013. 6
Following a February 20, 2013 probable-cause hearing as to K.J.1, the circuit court
entered an order on the same date finding that probable-cause existed, and still existed, to
protect K.J.1 and that it was in his best interest to continue in DHS’s legal custody.
5
We note that DHS filed an amended petition for ex parte emergency custody and
dependency-neglect, including K.J.1, on February 11, 2013. This document is not in the
addendum. However, we find that appellant’s failure to include the amended petition does
not prevent this court from addressing the merits of this appeal because the circuit court’s
February 6, 2013 order had already directed that K.J.1 be removed from the home.
Accordingly, DHS’s petition was an unnecessary, additional formality. However, the court
did enter an amended ex parte order for emergency custody granting DHS’s amended
petition, including both children, on February 12, 2013.
6
Following a February 14, 2013 hearing, the court entered an order on the same
date setting the date for the probable-cause hearing as to K.J.1 for February 20, 2013. The
court detailed the reasons for the delay in issuance of the amended ex parte order for
emergency custody and advised that, despite the delay, said order was still issued within
the five-business-day time frame set forth in Arkansas Code Annotated section 9-27-315.
3
Cite as 2014 Ark. App. 735
Therein, the circuit court adopted the parties’ stipulation that the same facts and
circumstances still existed that were in existence at the February 6, 2013 probable-cause
hearing and that probable cause existed for the issuance of the ex-parte order for
emergency custody and that probable cause still existed.
Also on February 20, 2013, the children’s attorney ad litem filed a cross-petition for
dependency-neglect of both children due to neglect and both parents being unfit.
Following a March 6, 2013 hearing, the circuit court entered an adjudication and
disposition order accepting the parties’ stipulation that both children were dependent-
neglected, finding the same to be due to neglect from their mother’s inability to care for
and protect them due to her unstable housing. Among other things, appellant was ordered
to cooperate with DHS; notify DHS, within 48 hours, of any change in his residence and
contact information; attend individual counseling; refrain from illegal drugs and alcohol
and any prescription medications not prescribed specifically for him; submit to random
drug screenings; and obtain and maintain safe, stable housing and stable income.
In a review order entered July 29, 2013, the court found that appellant had partially
complied with the case plan and court orders, specifically noting that while he had
completed parenting classes, he had only attended seven out of thirty-three visits with the
children and had not made himself available for court-ordered random drug screens. The
court specifically found that appellant had “very little credibility with the Court.”
Appellant was ordered to complete a psychological evaluation. The case plan, as to
appellant, was dependent on the outcome of his psychological evaluation, which the
circuit court deemed was needed to determine if he was an appropriate caregiver.
4
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Following a hearing on November 6, 2013, the court entered a review order on
November 26, 2013, finding that appellant was not in a position to properly take care of
and provide for the children’s needs. The circuit court instituted a concurrent goal of
adoption. The court found that appellant had again only partially complied with the case
plan as he had completed his psychological evaluation, participated and made progress in
therapy, and submitted to random drug screens. However, he still did not have
appropriate housing, was unemployed, had tested positive on one alcohol screening, and
had only attended twelve of twenty-seven visits since the last hearing. Furthermore, the
circuit court found that appellant had not made much progress towards alleviating or
mitigating the causes of the children’s removal from the home. It noted that it was “still
concerned with [appellant’s] thought processes[.]”
Following a January 23, 2014 hearing, the circuit court entered a permanency
planning order on February 5, 2014, authorizing a plan for adoption and authorizing DHS
to file a petition for termination of appellant’s parental rights. Again, the court found that
appellant had only partially complied with the case plan as he still did not have stable
housing, income, or employment; had attended only five of seventeen scheduled visits
with the children since the last hearing; had not demonstrated an ability to appropriately
care for K.J.2’s medical condition with the feeding tube; and had tested positive for
benzodiazepines and methadone. 7 A termination hearing was set for April 16, 2014. 8 On
7
Appellant was appointed separate counsel in a January 24, 2014 order.
8
The scheduled termination hearing was continued to May 1, 2014, by order
entered on April 17, 2014, due to Bankston’s hospitalization. The hearing was continued
5
Cite as 2014 Ark. App. 735
March 6, 2014, DHS filed a petition for termination of appellant’s parental rights pursuant
to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (twelve months out of the
home without remediation of the conditions causing removal); Arkansas Code Annotated
section 9-27-341(b)(3)(B)(vii)(a) (other factors arose subsequent to removal); and Arkansas
Code Annotated section 9-27-341(b)(3)(B)(ii)(a) (willful failure to provide material
support or to maintain meaningful contact with the children). 9
Following a hearing on May 21, 2014, the circuit court entered an order on May
28, 2014, terminating appellant’s parental rights and granting DHS the power to consent
to the children’s adoption. The circuit court found clear and convincing evidence that it
was in the children’s best interest to grant DHS’s petition to terminate appellant’s parental
rights and that only the “other factors” ground supported termination of appellant’s
parental rights. It made all other necessary findings. This timely appeal followed.
In compliance with Linker-Flores and Rule 6-9(i), counsel ordered the entire record
and found that after a conscientious review of the record, there are no issues of arguable
merit for appeal. Counsel’s brief adequately covered each action that was adverse to
appellant below. After carefully examining the record and the brief presented to us, which
included all adverse rulings, we conclude that the appeal is wholly without merit.
Accordingly, we affirm the termination of appellant’s parental rights and grant counsel’s
motion to withdraw.
again by order entered on May 1, 2014, to May 21, 2014, due to appellant’s scheduled
surgery on May 1, 2014.
9
(2013).
6
Cite as 2014 Ark. App. 735
Affirmed; motion to withdraw granted.
HARRISON and VAUGHT, JJ., agree.
Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, for appellant.
No response.
7 | 01-03-2023 | 12-17-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2756426/ | In the Missouri Court of Appeals
Eastern District
DIVISION ONE
GORDON D. AUBUCHON, ) No. ED101126
)
Respondent, )
) Appeal from the Circuit Court
v. ) of St. Charles County
)
KIMBERLEY H. HALE, ) Hon. Richard K. Zerr
)
Appellant. ) FILED: December 2, 2014
OPINION
Kimberly Hale (Mother) and Gordon Aubuchon (Father) appeal the trial court’s judgment
in post-dissolution proceedings involving child custody and support, relocation, and attorney
fees. We affirm.
Background
The parties divorced in September 2009 and received joint legal and physical custody of
their two daughters, H.A. and M.A. Father was ordered to pay child support of $920 per month.
In November 2009, Mother sought a temporary restraining order against Father based on
allegations that he had molested M.A. Mother voluntarily dismissed that petition weeks later
but, in February 2010, Father was indicted on two counts of statutory sodomy and was prohibited
contact with the children as a condition of his bond. Father would be acquitted after a jury trial
in February 2011, and Children’s Division would eventually reverse its probable cause
determination from “substantiated” to “unsubstantiated.”
In the interim, however, in May 2010, Mother filed a motion seeking sole custody of the
children and approval to relocate to Texas. While the motion was pending, in September 2010
Father’s child support obligation was increased to $1,680 per month. In July 2011, the trial court
entered its judgment denying Mother’s motions and, in light of Father’s acquittal, ordered
therapeutic measures to normalize relations between Father and the children. Mother appealed
that judgment and, in December 2012, this court reversed and remanded, holding that the
evidence demonstrated changed circumstances warranting consideration whether custody
modification and relocation would serve the children’s best interests. Aubuchon v. Hale, 384
S.W.3d 217 (Mo. App. E.D. 2012). We specifically found the record lacking any evidence that
the parties could co-parent such that joint custody remained a viable option. Id. at 223.
On remand, in December 2013, the trial court heard additional evidence to update the
record on the status of the parties and their daughters (then age 14). The court’s resulting
findings and orders are the subjects of this second appeal. In sum, the court found that the
allegations of abuse against Father were not credible and that Mother deliberately – and quite
successfully – estranged and alienated the children from Father. Ultimately, however, the court
concluded that, after over four years without contact, and given the girls’ disdain for Father due
to Mother’s influence, “there are no current conditions under which the Father can have a
meaningful relationship with his children,” and “forcing contact between the children and the
Father would do more harm than good.” Thus, the Court awarded sole custody to Mother and
no visitation for Father. The parenting plan specifies that Father retains full access to
information regarding the children (e.g., through teachers, doctors, counselors, coaches, etc.)
and may send them limited correspondence, and Mother is prohibited from interfering with his
efforts.
2
Though the trial court felt constrained to grant Mother sole custody for the children’s best
interests, Mother’s bad faith proved fatal to her motion to relocate them to Texas. On that
question, the court found that Mother’s desire to move was largely motivated by her wish to
evade Father and escape the court’s jurisdiction, noting that Mother had thwarted and would
continue to obstruct Father’s attempts to re-establish a relationship with the children even in
violation of court orders. Additionally, the court judged that relocation was not in the children’s
best interests in that, after years of turbulence, they were finally well-adjusted to their home,
school, and community in St. Charles County.
Also before the trial court on remand were financial matters involving child support and
attorney fees. The court found that both parties were under-employed. Mother was employable
as a certified teacher but worked as an accounting clerk earning $2,400 per month. Father’s
monthly income in industrial sales had decreased substantially since 2011, from over $12,000 to
just $4,333. Mother had real estate and stock assets totaling $558,000. Father had investment
accounts totaling $796,000. On remand, the court relied on the foregoing income figures, stated
in the parties’ respective updated income and expense statements, to decrease Father’s child
support obligation to $975 per month.
Finally, Mother sought to recover her attorney fees of $47,648 for the first appeal and of
$35,684 on remand. The court ordered Father to pay $10,000 toward Mother’s appellate legal
fees, as she was the prevailing party on appeal, but it granted no award for remand fees, leaving
the parties to pay their own bills.
Mother appeals and asserts that the trial court erred by: (1) denying her motion to relocate
to Texas, (2) reducing child support based on Father’s decreased income, (3) failing to credit
Mother for certain expenses in calculating child support, and (4) awarding only partial attorney
3
fees from the first appeal and none for the remand proceedings. Father cross-appeals, asserting
that the court erred by (1) granting sole custody to Mother and (2) ordering him to pay $10,000
of her appellate legal fees.
Standard of Review
On appeal, the trial court’s judgment will be affirmed unless there is no substantial
evidence to support it, it is against the weight of the evidence, or it erroneously declares or
applies the law. Jansen v. Westrich, 95 S.W.3d 214, 217-18 (Mo. App. 2003), citing Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Additional principles governing our review are
articulated below as relevant to the issues.
Analysis
Relocation
First, Mother challenges the court’s denial of her motion to relocate. Under §452.377, a
party seeking to relocate must demonstrate “that the proposed relocation is made in good faith
and is in the best interest of the child.” §452.377.9. “When a court considers whether a parent’s
desire to relocate a child is in good faith, the question is whether the relocating parent’s motive
or purpose for relocating is something other than to disrupt or deprive the non-relocating parent
of contact with the children.” Mantonya v. Mantonya, 311 S.W.3d 392, 399 (Mo. App. W.D.
2010). Here, the trial court found that “Mother has encouraged the estrangement and alienation
of the children from their Father” and that “Mother’s desire to move the children to Texas is, in
great part, motivated by her desire to make it as difficult as possible for Father to have any
contact with the children.” The record supports these findings. Mother herself expressly
confirmed under oath that she sought to eliminate Father completely and was unwilling to allow
4
him contact with the children. Simply put, Mother cannot carry her burden of proof of good faith
on this record.
Moreover, the record also supports the trial court’s finding that relocation is not in the
children’s best interest. The guardian ad litem summarized the inquiry and articulated her
recommendation as follows:
I don’t believe relocation is in the best interest of the girls because both girls are
adjusted to their school, they love their school, they have friends, they’re involved
here, not only in school but also at their church, St. John in Weldon Spring, and I
think they’ve just had too many changes and too much trauma over the last six
years, going from Francis Howell to the Catholic schools to a brief period of
homeschool to Francis Howell and now having to pick up and move to Texas
would not be in their best interest. … Mr. Aubuchon would be erased completely
from the girls’ lives and I don’t believe that’s in the best interest.
Despite Mother’s attempt to re-litigate the facts, this court does not re-try the issue.
Brethorst v. Brethorst, 50 S.W.3d 864, 866 (Mo. App. E.D. 2001). Our standard of review
requires great deference to the trial court in determining a child’s best interests. J.T.P. v. P.F.,
440 S.W.3d 497, 501 (Mo. App. E.D. 2014). Our role is merely to determine whether the record
contains sufficient evidence to support the trial court’s assessment, accepting all evidence and
inferences favorable to the judgment. Id. The trial court’s finding that relocation would not
serve the children’s best interests is supported by substantial evidence and is not against the
weight of the evidence. Mother’s first point is denied.1
1
We reject Mother’s contention that this court’s prior mandate precludes this result. In the first appeal,
we deemed dispositive Mother’s points I and II, which challenged the trial court’s order for continued
joint custody due to changed circumstances and for the children’s best interests. We reversed on those
points and remanded for reconsideration as to custody. We did not reach Mother’s other points but noted
that, “because the relocation issue is interrelated, the judgment is also reversed and remanded with regard
to whether relocation would be in the best interests of the children.” Contrary to Mother’s interpretation,
this statement was not intended to decide the point summarily, dispense with the statutory element of
good faith, or tie the trial court’s hands to a particular result. It simply clarified that, on remand, the trial
court should also revisit the question of relocation under §452.377.9, which requires both good faith and
best interests. The trial court has discretion to re-open the record and receive additional evidence on
remand. See Hamer v. Nicholas, 186 S.W.3d 884 (Mo. App. W.D. 2006). Given the time elapsed since its
earlier judgment and the critical importance of determining the facts based on current information,
5
Custody
In his cross-appeal, Father contends that the trial court erred in granting sole custody to
Mother and no visitation to Father because Mother deliberately alienated the children from him
and certain facts in the record belie a conclusion that the children don’t want to see him.
Specifically, Father emphasizes that M.A. enjoyed visiting with him over lunch at school one
day (evidenced by a video recording) and indicated a desire to see him again, but the girls’
primary counselor was unaware of this when she formed her recommendation against visitation.
In short, the record contains conflicting evidence as to the children’s wishes.
While we sympathize with Father’s plight, his legal argument succumbs to this court’s
standard of review, which requires that we accept the trial court’s resolution of conflicting
evidence and presume that it reviewed all of the evidence and decided the matter in the
children’s best interests. Riley v. Campbell, 89 S.W.3d 551, 552 (Mo. App. W.D. 2002). Here,
the trial court’s detailed factual findings and reasoning demonstrate that it did indeed carefully
consider the entire record, including the conflicting evidence about M.A.’s feelings toward
Father, but ultimately it concluded that M.A.’s ambivalence was outweighed by Mother’s
influence.
The children’s view of Father has declined while the Mother has had sole custody.
… The children did not express fear of their Father until after Mother lodged her
complaint against Father and began restricting his contact with the children. …
M.A.’s school counselor … testified that M.A. seemed happy, fine being with her
Father, just talking, smiling and laughing. … M.A. became visibly upset when
reminded about the relationship she had once enjoyed with her Father.
This court having now on two occasions been able to observe the testimony of
M.A. and recognizing the significance of the exoneration of Father by every
official body which made allegations against him, does not find the allegations
made by M.A. to be credible.
particularly given the evolution of this case, the trial court properly heard additional evidence as to
whether relocation was sought in good faith and was in the children’s best interests. As stated above, its
updated findings and conclusions are fully supported by the remand record.
6
While this Court does not find credible the allegations that Father has abused
either of his children, it is clear that both children function as if they had been
abused. Whether that perception is as a result of being told they were abused by
Mother … it is clear to this Court that M.A. believes she was abused by her
Father. In spite of that belief, it is clear from the lunch video that M.A. is
conflicted. … The girls are now 14 and are ever more entrenched in their desire to
have no contact with their Father. … Due to all that has transpired, forcing
contact between the children and the Father would do more harm than good.
This assessment finds support in the record through submissions of both the GAL and the
children’s therapeutic supervised visitation (TSV) counselor, who both reached the same
conclusion.2
Furthermore, the trial court was constrained to resolve the conflict within the bounds of
this court’s first opinion, where we found no factual basis for the continuation of joint custody
given the total breakdown in parental communication and cooperation. The trial court on remand
described its unenviable dilemma as follows.
So the Court is now left with the task of choosing to place the children in the sole
legal and physical custody of the Father, whom they have virtually not seen for
many years and with whom they express no interest in having any contact, or with
the Mother, who seems almost proud of the fact that she refuses to follow the law,
the judgment of the court, or any other authority which would involve giving the
Husband any part to play in the lives of “their” children.
This case illustrates the gravity of and rationale for this court’s great deference to the trial
court in custody cases, especially in such an irreparable predicament of circumstances. In respect
for our standard of review and in deference to the trial court’s superior position – after seven
years presiding over this family’s case – to craft a solution in the children’s best interests, we
will not second-guess its discretion or substitute our judgment for its own. While we agree that
2
Though reluctant to impose visitation against the children’s emotional well-being, the court attempted to
preserve Father’s parental rights through the parenting plan by allowing him to send correspondence and
access information, hoping “that with the passage of time the children will become open to a renewal of
their relationship with Father.” In essence, the trial court encouraged reconciliation at the election of the
children once independent of Mother’s influence.
7
Mother’s obstructionism is contemptible, this court’s inquiry concerns only whether the record
contains sufficient evidence to support the trial court’s determination of the children’s best
interests. This record satisfies that standard. Father’s first point is denied.
Child Support
Turning to financial matters, Mother contends that the trial court erred by reducing
Father’s child support obligation. Mother insists that the court should have imputed a higher
income to Father based on his previous earnings rather than accepting the figure stated in his
financial forms (point II). Mother also faults the trial court for ordering Mother to assume all
medical and extra-curricular expenses without a corresponding credit on Form 14 (point III).
With regard to point II, Mother engages in a lengthy and speculative factual portrayal of
Father’s finances, alleging that Father and his employer re-characterized his salary as a loan in
order to skew his earnings for purposes of child support. But Mother’s assertion again ignores
this court’s standard of review. We defer to the trial court on matters of credibility and view the
evidence in the light most favorable to its decision. State ex rel. Stirnaman v. Calderon, 67
S.W.3d 637, 639 (Mo. App. W.D. 2002). We will not substitute our judgment for that of the trial
court absent a manifest abuse of discretion and will not disturb an award of child support unless
the evidence is palpably insufficient to support it. Id. Moreover, the imputation of income is
entirely discretionary, and “what constitutes appropriate circumstances to impute income will
depend on the facts and must be determined on a case-by-case basis.” Appling v. Appling, 156
S.W.3d 454, 459 (Mo. App. E.D. 2005). Here, the trial court found both parties under-employed
(and hence could have imputed additional income to Mother) but it accepted Father’s
explanation that his reduction in income was attributable to Mother’s actions and the ongoing
litigation. The trial court was free to believe him.
8
Similarly on point III, the trial court implicitly rejected Mother’s financial evidence and
instead exercised its discretion to allocate medical and extraordinary expenses in a separate order
as it deemed just under the circumstances (noting elsewhere that Mother sought “a custody
arrangement tantamount to a termination of [Father’s] parental rights while very much keeping
him obligated financially as a parent”). We find no manifest abuse of discretion in the court’s
allocation of financial responsibilities given the circumstances of this case. Mother’s points II
and III are denied.
Attorney Fees
Finally, both parties challenge the trial court’s partial allocation of attorney fees. Mother
advocates for a larger award in her favor, while Father laments the partial award to his detriment.
The trial court has discretion to award attorney fees after considering all relevant factors,
including the financial resources of both parties, the merits of the case, and the conduct of the
parties. §452.355.1. An appellate court will reverse only upon a showing that the trial court
abused its broad discretion. Manning v. Manning, 292 S.W.3d 459, 466 (Mo. App. E.D. 2009).
To demonstrate an abuse of discretion, the complaining party must prove that the award is
clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s
sense of justice. Id. We find no abuse of discretion in the trial court’s award here.
The court clearly considered numerous factors, including the parties’ financial means, the
merits and complexity of the case, Mother’s status as the prevailing party on appeal, Mother’s
representation by two attorneys simultaneously at every stage of litigation, and Father’s good
faith in objecting to Mother’s relocation. Under §452.377.13, a court shall not order an award of
attorney fees against a party who objects in good faith to the relocation of a child’s principal
residence. The record supports the trial court’s finding that Father’s objection to relocation was
9
in good faith, so the trial court’s denial of fees on remand was entirely proper. However, given
Father’s superior financial resources, we cannot say that the trial court’s award of just over one-
fifth of Mother’s fees from the first appeal rises to the level of an abuse of discretion. Both
parties’ points challenging the trial court’s judgment as to attorney fees are denied.
Result
The trial court’s judgment is affirmed in all respects.
__________________________________
CLIFFORD H. AHRENS, Judge
Lawrence E. Mooney, P. J., concurs
Glenn A. Norton, J., concurs.
10 | 01-03-2023 | 12-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2756427/ | In the Missouri Court of Appeals
Eastern District
DIVISION ONE
GEORGE A VARGO, ) No. ED100756
)
Respondent, )
) Appeal from the Circuit Court of
vs. ) St. Charles County
)
DIRECTOR OF REVENUE, ) Hon. William E. Alberty
)
Appellant. ) FILED: December 2, 2014
The Director of Revenue appeals the trial court’s judgment reinstating George
Vargo’s driving privileges after they were revoked due to Vargo’s refusal to submit to a
breathalyzer. We reverse and remand to restore the revocation.
Background
On December 1, 2012, in St. Charles County, Trooper Jordan Hilliard followed a
pick-up truck driven by Mr. Vargo for approximately two and a half miles before pulling
him over for expired license plate tags. The tags had expired the previous day (November
30). Once stopped, Trooper Hilliard asked Vargo if he had had anything to drink that
evening. Vargo replied that he had had “a couple beers” while out to dinner with his
wife, who was in the passenger seat. Hilliard asked Vargo to exit the vehicle and asked
Vargo to complete various field sobriety tests, after which Hilliard concluded that Vargo
was intoxicated. Hilliard then transported Vargo to the St. Charles County jail to undergo
a breath test.
As Hilliard prepared the breathalyzer machine in a holding room, Vargo noticed a
sign warning against use of the machine in the presence of active radios or electronics.
Meanwhile Hilliard was struggling to operate the machine, her laptop was on, and her
radio was receiving transmissions. Vargo stated that he didn’t feel comfortable with
Hilliard operating the machine under such conditions, so he declined to submit to the
breathalyzer and offered to provide a blood sample instead. Hilliard rejected Vargo’s
proposal and had him sign a form acknowledging his refusal to submit to the breath test.
Pursuant to §577.041, the Director administratively revoked Vargo’s driver’s
license for refusing the test. Vargo filed a petition for judicial review, and the court held
a hearing at which Vargo adduced the only evidence, consisting of the alcohol influence
report, accompanying narrative, Vargo’s driving record, the refusal form, and his own
testimony. Vargo testified that Hilliard’s alcohol influence report was unfair or incorrect
in various respects. For example, Vargo was forced to perform the one-leg stand for
nearly a minute on a leg that had undergone surgery; Hilliard reported that Vargo drank
three glasses of wine rather than “a couple beers,” and Hilliard reported that Vargo
stumbled on a grassy slope though the shoulder was paved and flat. Hilliard did not
appear or testify.
The trial court ruled in Vargo’s favor and reinstated his driving privileges, finding
that Vargo did not refuse to submit to a test in that he distrusted the breathalyzer and
requested a blood test instead but was denied that option. The Director appeals, asserting
2
that the trial court legally erred in that Vargo’s conduct constitutes a refusal under
applicable precedent.
Standard of Review
The trial court's judgment will be affirmed unless there is no substantial evidence
to support it, it is against the weight of the evidence, or it erroneously declares or applies
the law.” White v. Director of Revenue, 321 S.W.3d 298, 307–08 (Mo. 2010). Claimed
error in applying the law is reviewed de novo. Id. The Director asserts an error of law,
so our review is de novo.
Analysis
Section 577.041 was adopted “to establish a fixed standard for procuring
admissible evidence of blood alcohol for use against persons operating automobiles while
intoxicated.” Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 619 (Mo. 2002). Under the
statute, any person who drives on the public highways is deemed to have consented to a
chemical test to determine the alcohol or drug content of the person's blood. Id. A person
may refuse chemical analysis of his blood alcohol level, but if the arresting officer has
reasonable grounds to believe that the person was driving while intoxicated, then the
director will revoke that person’s license for one year. Id. at 620. Upon judicial review of
the revocation, the director bears the burden of proof, and the issues are limited to: (1)
whether the person was arrested; (2) whether the officer had reasonable grounds to
believe that the person was driving while intoxicated; and (3) whether the person refused
to submit to the test. Id. citing §577.041.4. The inquiry ends once these three questions
have been answered. Id.
3
In the present case, the trial court found, in check-the-box format, that: (1) Vargo
was arrested, (2) Trooper Hilliard had reasonable grounds to believe that Vargo was
driving while intoxicated, but (3) Vargo did not refuse the test in that he “felt [that the]
machine (BA) [was] not working properly and request[ed] a blood test, which was
refused.”
The Director asserts that the trial court legally erred in that, under Missouri case
law, Vargo’s conduct constitutes a refusal. The Director’s characterization is correct. In
Fischbeck v. Director of Revenue, 91 S.W.3d 699 (Mo. App. E.D.), the driver refused to
submit to a breathalyzer test after overhearing the arresting officer say that the machine
wasn’t working properly. Id. at 701. Fischbeck testified that he would have consented to
the test had the machine been functional. Id. This court held that Fischbeck’s decision
qualified as a refusal regardless of his justification. Id. Furthermore, established
Missouri precedent instructs that a driver’s offer to take a blood test does not negate his
refusal to take a breath test. State v. Brown, 804 S.W.2d 396, 398 (Mo. App. W.D.
1991). The initial refusal will support administrative revocation unless law enforcement
decides to exercise its discretion to allow the driver to consent to the same or a different
type of test following the initial refusal. Rothwell v. Director of Revenue, 419 S.W.3d
200, 209 (Mo. App. W.D. 2013). The arresting officer is not obligated to accept the
driver’s offer to take a blood test. McGuire v. Jackson County Prosecuting Attorney, 548
S.W.2d 272, 276 (Mo. App. 1977). The initial refusal to take the breath test is sufficient
to revoke the driver’s license. Id.
4
Bound by the foregoing authorities, we must reverse the trial court’s judgment
and remand the case for reinstatement of the Director’s revocation of Vargo’s license.
____________________________________
CLIFFORD H. AHRENS, Judge
Lawrence E. Mooney, P. J., concurs
Glenn A. Norton, J., concurs.
5 | 01-03-2023 | 12-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2629986/ | 117 P.3d 297 (2005)
200 Or. App. 732
STATE of Oregon, Respondent,
v.
Dennis Martin MURRAY, Appellant.
02CR0274; A118634.
Court of Appeals of Oregon.
Argued and Submitted February 1, 2005.
Decided July 27, 2005.
James N. Varner, Dundee, argued the cause and filed the brief for appellant.
Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before WOLLHEIM, Presiding Judge, and EDMONDS[*] and SCHUMAN, Judges.
PER CURIAM.
Sentences vacated; remanded for resentencing; otherwise affirmed. State v. Perez, 196 Or.App. 364, 102 P.3d 705 (2004), rev. allowed, 338 Or. 488, 113 P.3d 434 (2005).
NOTES
[*] Edmonds, J., vice Ceniceros, S.J. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2756429/ | IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
SARAVIA V. HORMEL FOODS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
NOEL S. SANTOS SARAVIA, APPELLEE,
V.
HORMEL FOODS, APPELLANT.
Filed December 2, 2014. No. A-14-073.
Appeal from the Workers’ Compensation Court: J. MICHAEL FITZGERALD, Judge.
Reversed and remanded with directions.
Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellant.
No appearance for appellee.
IRWIN, INBODY, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Hormel Foods appeals from an order of the Nebraska Workers’ Compensation Court,
which found that Noel S. Santos Saravia sustained an injury to his right shoulder and neck as a
result of a work accident, ordered Hormel Foods to pay for certain past medical bills for the neck
and shoulder injuries, and awarded Saravia future medical care for such injuries. Hormel Foods
challenges the court’s finding that Saravia sustained an injury to his right shoulder as a result of
the accident, ordering it to pay for certain past medical bills, awarding future medical care for the
neck and shoulder conditions, and denying its “Motion to Modify or Change Award.” Based on
the reasons that follow, we reverse, and remand with directions.
BACKGROUND
On May 16, 2012, Saravia filed a petition in the Nebraska Workers’ Compensation Court
against Hormel Foods seeking workers’ compensation benefits as a result of injuries he sustained
-1-
in an accident arising out of and in the course of his employment with Hormel Foods on August
16, 2008.
Hormel Foods filed an answer denying certain allegations in the petition, but admitting
that Saravia sustained an injury to his neck as a result of the August 16, 2008, accident. Hormel
Foods alleged that it had paid all medical expenses and compensation benefits to which he may
be entitled.
Trial was held in September 2012. Saravia claimed that he sustained an injury to his neck
and developed bilateral carpal tunnel syndrome (CTS) as a result of a pallet hitting him in the
back of the head while working for Hormel Foods. The parties stipulated that Saravia sustained
an injury to his neck as a result of the accident and that he was not entitled to any temporary
benefits due to the neck injury. Further, Saravia’s counsel stated at trial that Saravia sustained no
permanent impairment or restrictions as a result of the neck injury. The parties also stipulated
that Saravia was not entitled to vocational rehabilitation benefits.
Hormel Foods disputed Saravia’s claim that he sustained bilateral CTS as a result of the
August 16, 2008, accident, and that was the primary issue at trial.
Following trial, the court entered an award on November 21, 2013, finding that Saravia
failed to prove that the bilateral CTS was caused by the August 2008 accident, and denied his
claim for benefits relating to the CTS claim. However, the trial court found that Saravia suffered
a “neck and shoulder injury” as a result of the August 2008 accident and ordered Hormel Foods
to pay for treatment of the neck and shoulder injury. The court further ordered that the issue of
Hormel Food’s liability for certain medical bills would be set for a future hearing.
Hormel Foods filed a “Motion to Modify or Change Award” on November 26, 2013,
asking the court to modify or change its award to conform to the evidence that Saravia sustained
only an injury to his neck as a result of the August 2008 accident, because there was no evidence
that he sustained any injury to his shoulder as a result of the accident. Hormel Foods further
asserted that the trial court should modify or change the award to clarify its statement that
Hormel Foods “is to pay for treatment of the neck and shoulder injury.” The trial court did not
specify if “treatment” referred to past treatment only or encompassed future treatment as well.
Hormel Foods contended that “treatment” should refer only to past medical treatment, because
there was no evidence to support an award of future medical treatment for any condition.
Following a hearing on Hormel Food’s “Motion to Modify or Change Award,” the trial
court entered an order denying the motion. The trial court stated that its finding that Saravia
sustained a right shoulder injury was proper because the medical records showed that a pallet fell
on Saravia’s neck and right shoulder and that “[a]lmost every doctor who treated [Saravia] stated
that [he] had pain in his neck and/or shoulders.” The court further stated, “While most, if not all,
of the treatment was to the neck the purpose of the treatment was to relieve the pain in both the
neck and shoulder.”
In regard to whether the court’s award of “treatment” for the neck and shoulder injury
included future medical care, the court held that it did and explained:
[Hormel Foods] is only liable for future medical care which is reasonable and is required
by the nature of the injury. [Saravia] must prove that the medical treatment he seeks is
necessary to treat the injury on August 16, 2008. The issue on whether or not the
treatment is reasonable and is required by the nature of the injury on August 16, 2008,
-2-
cannot be decided at this time but rather must be decided at the time there is a dispute as
to whether or not recommended treatment is reasonable and required by the nature of the
injury on August 16, 2008.
On December 30, 2013, a hearing was held on the issue of Hormel Food’s liability for
certain past medical bills. There were five unpaid bills that related to treatment of Saravia’s neck
and shoulder injury. Hormel Foods objected to the payment of those medical bills because there
was no medical evidence connecting the treatment that resulted in the bills to the August 2008
accident. Following the hearing, the trial court ordered Hormel Foods to pay the five medical
bills.
ASSIGNMENTS OF ERROR
Hormel Foods assigns that the trial court erred in (1) finding that Saravia sustained an
injury to his right shoulder as a result of the August 16, 2008, accident; (2) ordering it to pay for
certain past medical bills; (3) awarding future medical care for the neck and right shoulder
injuries; and (4) denying its “Motion to Modify or Change Award.”
STANDARD OF REVIEW
A judgment, order, or award of the Workers’ Compensation Court may be modified,
reversed, or set aside only upon the grounds that (1) the compensation court acted without or in
excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order, judgment, or
award; or (4) the findings of fact by the compensation court do not support the order or award.
Kim v. Gen-X Clothing, 287 Neb. 927, 845 N.W.2d 265 (2014). In determining whether to
affirm, modify, reverse, or set aside a judgment of the Workers’ Compensation Court, the
findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Id.
In testing the sufficiency of the evidence to support the findings of fact in a workers’
compensation case, every controverted fact must be resolved in favor of the successful party and
the successful party will have the benefit of every inference that is reasonably deducible from the
evidence. Id.
ANALYSIS
Injury to Right Shoulder.
Hormel Foods first assigns that the trial court erred in finding that Saravia sustained an
injury to his right shoulder as a result of the August 2008 accident. It argues that Saravia failed to
produce any medical causation evidence linking a right shoulder injury to the accident.
A workers’ compensation claimant bears the burden of establishing a causal relationship
between the alleged injuries and his or her employment. Armstrong v. Watkins Concrete Block,
12 Neb. Ct. App. 729, 685 N.W.2d 495 (2004). While the Nebraska Workers’ Compensation Act is
liberally construed to accomplish the beneficent purposes of the act, it remains the burden of the
employee to establish a causal relationship between the alleged injury and his or her
employment. Mendoza v. Pepsi Cola Bottling Co., 8 Neb. Ct. App. 778, 603 N.W.2d 156 (1999).
Unless the injury is objective and plainly apparent, the worker must present legally competent
medical testimony regarding that causal relationship and any claimed disability. Frank v. A & L
-3-
Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999). Medical evidence must be sufficiently
definite and certain, and an award cannot be based on mere speculation or conjecture. Hohnstein
v. W.C. Frank, 237 Neb. 974, 468 N.W.2d 597 (1991).
While the parties stipulated that Saravia sustained a neck injury as a result of the
accident, there was no such stipulation regarding a right shoulder injury. Therefore, in order for a
right shoulder injury to be compensable, Saravia had to prove that he had a shoulder injury and
that the injury was caused by the accident. Saravia never claimed any injury to his shoulder, and
such injury was not an issue at trial. Rather, the entire focus of the trial was whether the bilateral
CTS was caused by the August 2008 accident.
In finding that Saravia sustained a right shoulder injury, the trial court did not point to
any medical causation evidence in support of its award. Rather, the trial court stated that
Saravia’s medical records show that a pallet fell on his neck and right shoulder and that he
complained of pain in his neck and shoulders.
The medical records referenced by the trial court are simply historical statements made
by Saravia to doctors who were treating him. Such medical history statements do not establish
causation. See Lounnaphanh v. Monfort, Inc., 7 Neb. Ct. App. 452, 583 N.W.2d 783 (1998) (in
workers’ compensation case, medical history contained in medical records does not establish
causation). The fact that the medical records state Saravia reported he had shoulder pain
following the August 2008 accident, does not establish Saravia had a shoulder injury that was
caused by the accident.
The record contains no medical testimony to establish Saravia suffered a right shoulder
injury, and as previously stated, Saravia was not claiming he had such an injury. In addition,
there is no medical evidence to establish a causal relationship between a right shoulder injury
and the August 2008 accident. Thus, the trial court erred in finding that Saravia suffered a
shoulder injury, and this finding must be reversed.
Past Medical Bills.
Hormel Foods next assigns that the trial court erred in ordering it to pay for certain
medical bills when there was no evidence to support a conclusion that the care was necessitated
by Saravia’s work-related injury. The trial court ordered Hormel Foods to pay three bills from
Dr. Elvira Rios and two bills from Dr. Wesley Smeal. The bills from Dr. Rios related to
treatment for neck pain and were from visits on November 11, 2011, and January 6 and 30, 2012.
The bills from Dr. Smeal related to treatment for neck and shoulder pain and were from visits on
December 18, 2012, and January 23, 2013. Neither Dr. Rios nor Dr. Smeal provided any opinion
that the treatment provided on the dates of the bills was related to the August 2008 accident.
However, there was medical testimony from another doctor, Dr. James Devney, that the medical
bills were not related to the accident.
Dr. Devney had treated Saravia for neck pain following the August 2008 accident. He
released Saravia from care on August 15, 2011. Saravia later sought medical care from Drs. Rios
and Smeal for neck pain. Dr. Devney reviewed Saravia’s medical records before and after the
time he treated Saravia, including the care provided by Drs. Rios and Smeal. Dr. Devney opined
that any treatment for the neck after August 15, 2011, was not causally related to the August
2008 accident.
-4-
Saravia presented no evidence to dispute Dr. Devney’s opinion. He presented no
evidence that any of the treatment he received for the neck after August 15, 2011, including the
treatment from Drs. Rios and Smeal, was causally related to the August 2008 accident. He only
presented records showing that treatment was provided and the associated bills. Such is not
sufficient to establish that the need for this care was related to and necessitated by the August
2008 accident.
All of the bills the trial court ordered Hormel Foods to pay related to treatment that
occurred after August 15, 2011. There was undisputed evidence that any treatment for Saravia’s
neck after August 15, 2011, was not causally related to the August 2008 accident. Thus, we
conclude that the trial court erred in ordering Hormel Foods to pay the medical bills of Drs. Rios
and Smeal at issue.
Future Medical Care.
Hormel Foods also assigns that the trial court erred in awarding future medical care for
Saravia’s neck and right shoulder conditions because there was no evidence to show a need for
future medical care. We first conclude that based on our determination that the trial court erred in
finding that Saravia sustained a right shoulder injury, the trial court also erred in awarding future
medical treatment for a right shoulder injury. In regard to Saravia’s neck injury, we conclude that
there is no evidence to support an award of future medical care.
Neb. Rev. Stat. § 48-120(1)(a) (Cum. Supp. 2014) authorizes an award of future medical
expenses. In construing § 48-120(1)(a), the Nebraska appellate courts have emphasized that
before an order for future medical benefits may be entered, there should be a stipulation of the
parties or evidence in the record to support a determination that future medical treatment will be
reasonably necessary to relieve the injured worker from the effects of the work-related injury.
Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001); Adams v. Cargill Meat
Solutions, 17 Neb. Ct. App. 708, 774 N.W.2d 761 (2009).
In this case, the parties did not stipulate to an award of future medical expenses. Thus,
there must be evidence in the record to support a determination that future medical treatment will
be reasonably necessary to relieve the effects of Saravia’s neck injury.
In Adams v. Cargill Meat Solutions, supra, this court held that an award of future medical
expenses requires explicit evidence of a need for future medical treatment. In Adams, two
doctors stated that they had nothing else to offer the plaintiff in the way of treatment and a third
doctor did not provide any opinion regarding future care. The only other evidence as to future
medical care was the plaintiff’s testimony that she took prescription pain medication. This court
found that the plaintiff’s testimony was insufficient to establish an award of future medical care
and stated, “[T]here is no evidence that [the plaintiff] requires any future medical treatment or
that future medical treatment would be in any way beneficial in relieving the effects of her back
injury.” Adams v. Cargill Meat Solutions, 17 Neb. Ct. App. at 714, 774 N.W.2d at 765.
In the present case, there is no evidence of a need for future medical care. Saravia did not
testify as to any ongoing or future medical care in regard to the neck injury, nor did he present
any evidence about a need for future medical care. The only evidence in regard to future medical
care was found in the opinion of Dr. Devney, who stated:
-5-
[T]here has been needless redundancy of treatment that, as expected, has provided little
to no sustained benefit. There is clearly no indication for ongoing and endless treatment
that has proved futile previously. [Saravia] is not an appropriate candidate for ongoing
prescription medication trials, physical therapy or interventional treatments of any sort.
Dr. Devney’s opinion supports a conclusion that Saravia does not require any future medical
treatment and that future medical treatment would not be beneficial in relieving the effects of his
neck injury.
The trial court awarded Saravia future medical care for his neck injury without any
evidence that future medical care was reasonably necessary. Accordingly, we conclude that the
trial court erred in awarding Saravia future medical care for his neck injury.
Motion to Modify or Change Award.
Finally, Hormel Foods assigns that the trial court erred in denying its “Motion to Modify
or Change Award.” Hormel Foods’ motion asked the court to modify its award to reflect that
Saravia sustained an injury to only his neck as a result of the accident, and not an injury to his
shoulder. Hormel Foods further asked the court to clarify that the treatment Hormel Foods was
ordered to pay did not include future medical care. Having found that the trial court erred in
finding that Saravia suffered a right shoulder injury and erred in awarding future medical care,
we need not address Hormel Foods’ final assignment of error. See Holdsworth v. Greenwood
Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013) (appellate court is not obligated to engage
in analysis that is not necessary to adjudicate case and controversy before it).
CONCLUSION
We conclude the trial court erred in finding that Saravia sustained a right shoulder injury
that was caused by the August 2008 work accident. We further conclude the court erred in
ordering Hormel Foods to pay certain medical bills, finding that they were necessitated by the
work accident, and erred in awarding Saravia future medical care for the neck and shoulder
injury. Therefore, we reverse the trial court’s award of a right shoulder injury, past medical bills,
and future medical care for the neck and shoulder injury, and remand the matter to the trial court
with directions to enter an order consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
-6- | 01-03-2023 | 12-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2264905/ | 54 Cal. App. 4th 766 (1997)
THE PEOPLE, Plaintiff and Appellant,
v.
ALFRED CALDERON, Defendant and Respondent.
Docket No. C023677.
Court of Appeals of California, Third District.
March 31, 1997.
*767 COUNSEL
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Appellant.
Alfred Calderon, in pro. per., for Defendant and Respondent.
*768 OPINION
NICHOLSON, J.
In talking with an investigator from the Yolo County Public Defender's Office, defendant implicated himself in a shooting and then asked for an attorney. The investigator contacted the police, apprising them of defendant's involvement and his request for an attorney, and defendant accompanied the investigator to the police department. Without obtaining an attorney for defendant, police advised defendant of his Miranda[1] rights. Defendant indicated he understood, signed a waiver, and submitted to a videotaped interview regarding the shooting incident. The trial court suppressed defendant's statements to the police, finding they could be used only for impeachment purposes under Arizona v. Roberson (1988) 486 U.S. 675 [108 S. Ct. 2093, 100 L. Ed. 2d 704]. The court found defendant had requested counsel, counsel had not been provided, and further interrogation was initiated by police, not defendant. The People appeal. We reverse.
FACTS
In a case involving charges of attempted murder in a shooting incident, the Yolo County Public Defender's Office represented the alleged perpetrator, Jose Villa. Robert Samaniego, an investigator for the public defender's office, identified defendant Alfred Calderon as a potential witness who might benefit Villa's defense. Samaniego kept Detective Armando Fernandez of the Woodland Police Department informed of his efforts, and Detective Fernandez told Samaniego "as soon as you can locate [defendant], ... you hand him over to me."
Samaniego eventually located defendant at a friend's apartment. Samaniego showed defendant his badge, stating he was "from the Yolo County Public Defender's office and ... was investigating the Jose Villa case." He then asked defendant to accompany him to his office to complete the interview. Defendant did so, identifying the public defender's office as the "sheriff's station." In the course of a 17-minute interview, defendant indicated his involvement in the shooting incident.[2] At this point, Samaniego asked if he could tape their interview, and defendant responded he wanted an attorney. Samaniego terminated the interview and contacted the Woodland Police Department.
Detective Fernandez and two other police officers met Samaniego outside the public defender's office and Samaniego related what had happened. *769 Samaniego then transported defendant to the Woodland Police Department. At the police station, Detective Fernandez told defendant they were investigating a shooting and believed he was involved. Fernandez advised defendant of his Miranda rights; defendant signed a waiver and submitted to a videotaped interview. Fernandez placed defendant under arrest at the conclusion of the interview.
Defendant subsequently moved to quash his implicating statement to Samaniego and his later statements to police. The trial court found: "[T]he motion to quash the statement made to Robert Samaniego, the Public Defender investigator[,] must be denied. From all of the evidence, I do not find and cannot find, frankly, that the defendant was in custody at the time he gave the statement to Mr. Samaniego. And if he's not in custody, then obviously it makes no difference whether Mr. Samaniego was cooperating with the police or there's a parallel investigation or how we want to characterize the relationship between Samaniego and Fernandez.... [¶] Samaniego asked [defendant] whether he would go down to the office. [Defendant] admitted on the stand that he voluntarily agreed to accompany Mr. Samaniego to the office. [Defendant] sat in the front seat of an unmarked, white Ford when he drove down to Mr. Samaniego's office. So there's nothing that would suggest that he was under arrest. [¶] ... I recognize that [defendant] says he thought he was in the sheriff's department, but there is no reason a reasonable person would come to that conclusion. There's nobody in uniform in that particular area, there's nothing about the building to suggest that it's the police department. [Defendant] didn't know that the building had previously been the site of the Yolo County Sheriff's Department. So the site of the interview itself would not indicate that the defendant is in custody.... [¶] For all those reasons, then, the statement made to Mr. Samaniego would not be suppressed.... [¶] After reviewing the most recently filed points and authorities, I still find that the U.S. Supreme Court case of Arizona versus Roberson [citation] is the only case that addresses the issue before the Court. In that case, the Supreme Court held that once a defendant has asked for counsel, he cannot be interrogated further, if the police initiate the interrogation. According to the Supreme Court, this is true even if the second officer who conducts the subsequent interrogation does not know that the defendant has invoked his rights. [¶] That holding then dictates that the videotaped statement is inadmissible in the People's case in chief. That does not mean, however, the statement is inadmissible for any purpose. [¶] Based on the evidence in this case, I would find that the statement given to Officer Fernandez was not coerced, the defendant was fully Mirandized, the defendant indicated that he understood his rights, and he unhesitatingly said that he would waive his rights and talk to the police. [¶] Therefore, I find that the statement is *770 voluntarily made and that statement can be used for impeachment purposes, if the defendant chooses to testify in that particular case."
At a subsequent hearing, the prosecutor stated she was unable to proceed to trial "due to the Court's pretrial ruling." Accordingly, the trial court dismissed the charges against defendant, and this appeal followed.
DISCUSSION
(1) The trial court phrased the underlying issue as follows: "If a police officer learns from a private citizen that a suspect has said he wants to talk to an attorney, is the police officer precluded from interrogating the defendant, even if the police officer Mirandizes the defendant and the defendant says he's willing to talk"? The limited case law on this issue indicates the answer is no.
The trial court expressly found defendant was not in custody during his questioning by Samaniego, and it was during this questioning that defendant invoked his right to counsel. In discussing the right to counsel, the United States Supreme Court has noted: "We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than `custodial interrogation'.... If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect." (McNeil v. Wisconsin (1991) 501 U.S. 171, 182, fn. 3 [111 S. Ct. 2204, 2211, 115 L. Ed. 2d 158, 171]; see also U.S. v. Hines (9th Cir.1992) 963 F.2d 255, 256 ["[i]t is well established ... that the Fifth Amendment right to counsel under Miranda does not vest until a defendant is taken into custody."].)
Although this passage in McNeil is dicta, we consider it "with deference." (See Alston v. Redman (3d Cir.1994) 34 F.3d 1237, 1246.) Moreover, "[t]he antipathy expressed in McNeil towards the anticipatory invocation of the Miranda rights is consistent with Miranda's underlying principles. The Miranda right to counsel is a prophylactic rule that does not operate independent from the danger it seeks to protect against `the compelling atmosphere inherent in the process of in-custody interrogation' and the effect that danger can have on a suspect's privilege to avoid compelled selfincrimination. [Citation.] To allow an individual to interpose Miranda in a *771 situation outside the custodial interrogation context would represent an unwarranted extension of Miranda's procedural safeguards, an extension best left to the discretion of the Supreme Court, which devised the Miranda safeguards in the first place and which has quite recently expressed disinterest in expanding them. [Citation.]" (Ibid.)
Accordingly, it was error to suppress defendant's statements to the police, and we remand this matter for further proceedings in accordance with this opinion.
DISPOSITION
The trial court's order on the motion to suppress defendant's statements to the Woodland Police Department, and the order of dismissal resulting therefrom, are reversed. The matter is remanded with directions to the superior court to vacate the judgment of dismissal and enter a new and different order denying defendant's motion to suppress.
Sims, Acting P.J., and Scotland, J., concurred.
NOTES
[1] Miranda v. Arizona (1966) 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.LR.3d 974].
[2] According to the memorandum of points and authorities accompanying the motion to suppress, during this interview defendant "admitted discharging a firearm which struck one of the [victims] in the head." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356221/ | 297 S.E.2d 122 (1982)
Sallie M. THOMPSON, Employee, Plaintiff,
v.
BURLINGTON INDUSTRIES, Employer, and
Liberty Mutual Insurance Company, Carrier, Defendants.
No. 8110IC1420.
Court of Appeals of North Carolina.
November 16, 1982.
*124 Hassell, Hudson & Lore by Charles R. Hassell, Jr., Raleigh, for employee, plaintiff.
Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr., Greensboro, for carrier, defendants.
ARNOLD, Judge.
Plaintiff's first argument is that the Industrial Commission erred in denying her claim for temporary total disability and medical expenses resulting from her occupational disease.
An occupational disease must be "proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment." G.S. 97-53(13). If the medical evidence tends to show that plaintiff suffers from an ordinary disease of life to which the general public is equally exposed, which is not proven to be due to causes and conditions which are characteristic of and peculiar to any particular trade, occupation or employment and which is not aggravated or accelerated by an occupational disease, her claim is not compensable. Walston v. Burlington Industries, 304 N.C. 670, 285 S.E.2d 822 (1982).
Dr. Hayes' medical evaluation was that plaintiff had asthma and was allergic to grass, trees, house dust, tobacco, feathers, and fungi. The doctor concluded:
This patient by history has mild asthma. I expect that any dusty environment or exposure to various irritating fumes could trigger an asthmatic attack. In such cases, it is frequently impossible to discern a direct cause and effect relationship between cotton dust exposure and symptoms. It should, however, be noted that the typical symptoms of Monday morning chest tightness progressing to fixed airway obstruction that have been classically called byssinosis are not historically present in this case.
Except as to questions of jurisdiction, findings of fact made by the Commission are conclusive on appeal when supported by evidence, even if there is evidence which supports a contrary finding of fact. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). The medical evidence in this case overwhelmingly supports the Commission's findings that "plaintiff has asthma which was exacerbated by exposure to cause and conditions in her employment ... however, she does not retain any permanent functional pulmonary impairment as a result thereof nor did she incur any compensable disability attributable thereto following her removal ... from ... textile employment." Since plaintiff suffered from asthma, an ordinary disease of life, and did not retain any permanent functional pulmonary impairment after she quit her job, she did not have an occupational disease.
Plaintiff's second argument is that the Industrial Commission erred in denying her motion to present newly discovered evidence. Plaintiff contends that the new evidence must be received if good ground is shown. The pertinent portion of G.S. 97-85 provides:
*125 If application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award....
Whether good ground is shown is within the sound discretion of the Commission, and the Commission's determination in that regard will not be reviewed on appeal absent abuse of discretion. Lynch v. M.B. Kahn Construction Co., 41 N.C.App. 127, 254 S.E.2d 236, review denied, 298 N.C. 298, 259 S.E.2d 914 (1979).
The so-called newly discovered evidence was Dr. Rhodes' evaluations which were made on 14 February 1977 and 2 November 1976. That evidence was used by Dr. Hayes in his evaluation, which was admitted into evidence. Dr. Rhodes concluded that plaintiff was allergic to dust, animal danders, cottonseed, flaxseed, and soybean, and a dusty environment exacerbates her symptoms. This is no different from Dr. Hayes' conclusions. In these circumstances, we find no abuse of discretion.
We have carefully considered plaintiff's assignments of error, and the order of the full Commission is affirmed.
Affirmed.
WELLS and HILL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356223/ | 164 Ga. App. 260 (1982)
297 S.E.2d 49
BOZEMAN
v.
TIFTON FEDERAL SAVINGS & LOAN ASSOCIATION.
63843.
Court of Appeals of Georgia.
Decided November 3, 1982.
W. E. Lockette, for appellant.
Norman Jewel Crowe, Jr., for appellee.
CARLEY, Judge.
Tifton Federal Savings and Loan Association, appellee, filed a petition for a writ of possession to recover a mobile home in which it held a security interest. Appellee was the assignee of a Retail Installment Contract and Security Agreement which had been executed by Mrs. Bozeman, appellant, and the dealer from whom she purchased the mobile home. Appellant filed an answer to appellee's petition and denied appellee's allegation that she was in default under the contract. Appellant's denial of default was based on an assertion that the finance charge imposed both by the contract itself and by appellee's acceleration upon her alleged default exceeded the rate allowed by the Georgia Motor Vehicle Sales Finance Act (MVSFA), Code Ann. § 96-1001 et seq. Accordingly, appellant contended that the finance charge was uncollectable and that she was not in default because at the time the debt was accelerated, she had already paid more than she was legally obligated to pay. Appellant also filed a counterclaim seeking to invoke the penalty set forth in Code Ann. § 96-1008 (c) for the wilful violation of MVSFA. Both parties filed motions for summary judgment, appellee's motion being directed toward the entire case and appellant's motion going only to the main action. The trial court denied appellant's motion for summary judgment and granted appellee's, awarding it a writ of possession. Appellant appeals from the trial court's orders.
1. We turn first to appellant's contention that appellee, both in its notice of intention to enforce the attorney fee provisions of the contract and in its original petition for writ of possession, violated Code Ann. § 96-1004 by demanding, as an accelerated balance, an amount that included an excessive finance charge. Appellee has admitted that the accelerated balance demanded in its attorney fee notice and in its original petition was computed by rebating unearned finance charges according to the "Rule of 78" method. This method of computing the finance charge rebate due upon acceleration following default has been held to violate MVSFA. Cook v. First Nat. Bank of Atlanta, 130 Ga. App. 587 (203 SE2d 870) (1974). See also, Garrett v. G. A. C. Finance Corp., 129 Ga. App. 96 (198 SE2d 717) (1973). *261 However, appellee urges that any violation of MVSFA was cured when it subsequently amended its petition for writ of possession to demand a reduced accelerated balance correctly computed by rebating the unearned finance charge on a pro rata or proportional basis. Appellant contends that appellee could not cure its violation of Code Ann. § 96-1004 by amendment of its petition.
The Supreme Court of this state has addressed this issue in a case arising under the Retail Installment and Home Solicitation Sales Act (RIHSSA), Code Ann. § 96-901 et seq. Following the buyer's default, the plaintiff-seller in Bell v. Loosier of Albany, Inc., 237 Ga. 585 (229 SE2d 374) (1976) brought suit for an accelerated amount computed under the Rule of 78. The seller later amended its complaint to deduct the unearned finance charges from the amount which it sought to recover. See Bell v. Loosier of Albany, Inc., 137 Ga. App. 50, 51-52 (222 SE2d 839) (1975). The Supreme Court held that "acceleration by the seller plus the filing of a complaint against the buyer which sought recovery of unearned and therefore excessive rates amounted to a `charge' by the seller that violated the [RIHSSA]." Bell, 237 Ga. at 586, supra. The seller's amendment of the complaint was ineffective to correct the violation, as the impermissible "charge" had already been imposed. Bell, 237 Ga. 585, supra.
We see no basis upon which to distinguish between RIHSSA and MVSFA for purposes of applying the holding in Bell, 237 Ga. 585, supra, in the instant case. The two statutes were enacted on the same day, both "to provide requirements and prohibitions as to retail installment contracts" and "to provide for finance charge limitation." Ga. L. 1967, pp. 659, 674. While provisions of each act limiting the rates of finance charges differ somewhat in wording, these differences are insignificant in that the provisions are virtually identical in meaning and function. RIHSSA provides at Code Ann. § 96-903 (d) (2) that "a minimum time price differential not in excess of the following amounts may be charged...," whereas MVSFA states at Code Ann. § 96-1004, that "the finance charge ... shall not exceed the following rates ..." (Emphasis supplied.)
We hold, therefore, that appellee's acceleration under the contract, followed by the filing of its petition for writ of possession "seeking recovery of the balance due, without deducting therefrom unearned rates that would have been earned except for acceleration, amounted to a `charge' by the seller in violation of" MVSFA. Bell, 237 Ga. 585, supra. See also Harrison v. Goodyear Svc. Stores, 137 Ga. App. 223, 224-225 (223 SE2d 261) (1976).
2. Appellee contends that a 1980 amendment of MVSFA, Ga. L. 1980, pp. 523, 525, (Code Ann. § 96-1005), authorized its computation *262 of the accelerated amount due by using the Rule of 78. The 1980 enactment essentially provides that in cases where the buyer pays a retail installment contract debt in full at any time before maturity, he is entitled to receive a refund credit for such anticipation of payments calculated under the Rule of 78. The statute also contains the following proviso: "[T]his section shall not apply to credit upon anticipation of payments or upon acceleration in those cases where the seller or holder of the contract has computed finance charges according to the actuarial method..." (Emphasis supplied.) It is appellee's position that the above emphasized language of the proviso, rendering the statute inapplicable in cases of acceleration of contracts containing finance charges computed according to the actuarial method, should be construed as authority to compute the rebate in accordance with the Rule of 78 where, as in the instant case, there has been an acceleration of a contract containing a finance charge computed other than according to the actuarial basis. "`It is well established that an exception in a statute amounts to an affirmation of the application of its provisions to all other cases not excepted, and excludes all other exceptions.' [Cits.]" Barnett v. D. O. Martin Co., 191 Ga. 11, 14 (11 SE2d 210) (1940). Appellee's argument in this regard would perhaps be more availing were it not for the fact that, in its material and relevant parts, all that is contained in the 1980 statute which precedes the proviso is essentially a reenactment of Ga. L. 1967, pp. 674, 680, former Code Ann. § 96-1005. The language of that former statute, retained for the most part in the 1980 enactment, was judicially construed in Cook v. First Nat. Bank, 130 Ga. App. 587 (2) supra, as strictly authorizing calculation of the rebate using the Rule of 78 only in cases of prepayment before maturity, not in cases of acceleration. Under these circumstances, the proviso of the 1980 statute cannot be construed as authority to calculate the rebate using the Rule of 78 in all cases of acceleration of a contract under the MVSFA other than those containing a finance charge computed according to the actuarial method. "`From the addition of words it may be presumed that the legislature intended some change in the existing law; but it is also presumed that the legislature did not intend to effect a greater change than is clearly apparent either by express declaration or by necessary implication. [Cit.]' [Cits.]" C. W. Matthews Contracting Co. v. Capital Ford Truck Sales, 149 Ga. App. 354, 356 (254 SE2d 426) (1979). "Words and phrases, the meaning of which has been ascertained in a Statute, are, when used in a subsequent Statute, or in subsequent parts of the same Statute, to be understood in the same sense. [Cits.]" Lane v. Morris, 10 Ga. 162, 173 (1851). "`It is presumed that the legislature knows and enacts statutes with reference to the existing law, *263 including the decisions of the courts, and when there is nothing in the enactment to indicate that the words used were to have a new and different meaning they should be construed as having the same meaning that was attached to them before the enactment. [Cits.] When we apply this rule of statutory construction we must conclude that if the legislature had intended to enlarge the meaning of [former Code Ann. § 96-1005] it would have used other or further language in the [1980] Act [presently existing Code Ann. § 96-1005] and it is now for the legislature rather than the courts to change the meaning that that [statute] had at the time of the Act.' [Cit.]" Chilivis v. Cleveland Elec. Co., 142 Ga. App. 751, 753-754 (236 SE2d 872) (1977). Accordingly, in cases of acceleration of MVSFA contracts, we hold that under the 1980 statute, as with former Code Ann. § 96-1005, the refund credit may not be calculated under the Rule of 78. Cook, 130 Ga. App. 587, supra.
3. The determination that the appellee violated Code Ann. § 96-1004 triggers the penalty provision of Code Ann. § 96-1008: "A violation of section 96-1004 by the seller or holder shall bar recovery of any finance charge, delinquency or collection charge on the contract." The entire finance charge was therefore forfeited. Kelly v. Sylvan Motors, Inc., 160 Ga. App. 420 (287 SE2d 359) (1981); Ford Motor Credit Co. v. Spann, 153 Ga. App. 535, 537 (265 SE 2d 863) (1980); Smith v. Society Nat. Bank, 143 Ga. App. 370, 371 (238 SE2d 739) (1977); Cook v. First Nat. Bank, 130 Ga. App. at 588, supra. It is therefore unnecessary to consider the other grounds under which appellant contends that the finance charge was excessive.
4. Appellant takes the position that because she was not legally obligated to pay the finance charge she was not in default. "The total finance charge specified in the contract was [$17,051.32]. The total of payments was [$34,816.32]. After deducting the [$17,051.32] finance charge, the total due becomes [$17,765.00]. At the time of acceleration, appell[ant] had paid [$8,674.30], thus reducing the balance to [$9,090.70]. However, at that point, there were [100] months remaining on the contract, or [100] payments of [$241.78] each, for a total of [$24,178.00]. Thus, at the time of acceleration, the future payments due under the contract exceeded the amount of the remaining indebtedness. Under these circumstances, the debtor cannot be held in default." Ford Motor Credit Co., 153 Ga. App. at 538, supra (citing Smith v. Society Nat. Bank, 143 Ga. App. 370, supra, and Harrison v. Goodyear Svc. Stores, 137 Ga. App. 223 (223 SE2d 261) (1976)).
The trial court erred in granting summary judgment for appellee as to the entire case and in denying appellant's motion for summary *264 judgment as to the main action. Accordingly, the judgments are reversed and the case is returned to the trial court where, after the entry of orders consistent with the holding in this case, the appellant's counterclaim will be pending.
Judgments reversed. Quillian, C. J., and Shulman, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356225/ | 164 Ga. App. 255 (1982)
297 S.E.2d 741
LOWE ENGINEERS, INC. et al.
v.
ROYAL INDEMNITY COMPANY.
64637.
Court of Appeals of Georgia.
Decided November 3, 1982.
Jeffrey L. Sakas, for appellants.
*260 Richard K. Hines V, John W. Winborne III, Edgar A. Neely, Jr., for appellee.
BIRDSONG, Judge.
Doctrine of Binding Precedent. Lowe Engineers, Inc. (Lowe) is a company engaged in engineering studies, mapping, surveys and related services concerning navigable waters of the United States in several of the states of the United States including Arkansas. Its services included measuring length and width of rivers, depth, speed *256 of current flow, and height of river banks.
On September 30, 1968, the appellee Royal Indemnity Company ("Royal") issued to Lowe a policy of insurance covering workers' compensation and employer's liability. An exception for bodily injury, including death, sustained by a master or member of the crew of any vessel, was contained in the general liability portion of the policy. Royal's coverage for non-worker's compensation incidents was limited to $100,000 in the case of one or more deaths or injuries resulting while the policy was in effect. The policy period extended until September 30, 1969.
On May 8, 1969, Lowe was engaged in mapping the Red River in the state of Arkansas. On that day a flat bottom boat containing six employees of Lowe capsized resulting in the drowning deaths of five of the employees. Apparently Royal commenced paying workers' compensation to the survivors of the decedents. On January 16, 1970, the survivors of four of the deceaseds filed suit against Lowe in a federal district court in Arkansas asserting that the complaint was based in admiralty or maritime jurisdiction as a violation of the Jones Act (46 U. S. C. A. § 683) and under principles of general maritime law. See Moragne v. States Marine Lines, 398 U. S. 375 (90 SC 1772, 26 LE2d 339).
On February 17, 1970, Royal notified Lowe that it would not defend the Arkansas lawsuit and denied coverage under its policy. The basis of its denial of coverage emanated from the allegations in the Arkansas case that the deceased workers were crewmen of a vessel under the maritime law of the United States and/or the Jones Act. Though Royal was not a party to the litigation in the federal court in Arkansas, the parties to that trial stipulated that Royal had paid certain workers' compensation to the survivors and that a determination that the deaths resulted from a maritime accident and fell within the Jones Act or the general maritime law would entitle Royal to reimbursement for previously made workers' compensation payments, as compensation under the maritime law was exclusive. The trial of the Arkansas action commenced on April 12, 1971. Judgment against Lowe and its umbrella insurer, United States Fire Ins. Co., was rendered on June 11, 1971, in the amount of $455,000.
A similar complaint was filed in federal district court in Birmingham, Alabama, against Lowe by the survivors of the fifth deceased employee. The allegations of the complaint also sounded in violations of the Jones Act and general maritime law. However, this case was compromised by Lowe and its insurer with the plaintiffs in the amount of $70,000.
As a part of its decision the trial court in Arkansas determined that the individual employees were assigned to a specific crew and *257 that each crew had its own party chief, boat and equipment. The boats were used for transportation from one work site to another as well as being used for transportation to and from the point of departure. In substance, the court found that a substantial part of the work of the members of the staking crew (measuring length), the sounding crew (measuring depth) and the overbank crew (measuring bank height) was required to be done on water and was related to maintenance and operation of the boat assigned to those crews. The use of the boats was required in the performance of each crew's work and constituted an integral part thereof. The court further found that the Red River was and is a navigable stream; that the boat used was a vessel; and that each person assigned was a seaman within the meaning of that word in admiralty law and by irrefutable implication each employee was a crewman of an assigned vessel. On appeal to the circuit court of appeals, the appeal was limited to the issue of damages. That court found a violation of either or both the general maritime law and/or the Jones Act and affirmed. Spiller v. Lowe, 466 F2d 903 (8th Cir. 1972).
On December 10, 1974, Lowe and its umbrella insurer, U. S. Fire Ins. Co., filed the present lawsuit against Royal seeking the $100,000 coverage stated in Royal's employer liability policy, over $21,000 in attorney fees, litigation expenses in excess of $66,000, interest in excess of $20,000, and statutory penalties and attorney fees. Royal answered contending that under the doctrine of binding precedent it had been judicially determined by the district court in Arkansas that the capsized boat was a "vessel" and that the deceased employees were "seamen" or "members of the crew" of that vessel. As members of the crew of a vessel, the employees fell within the exclusion contained within the policy issued by Royal excluding liability for the death of crewmen of a vessel. Royal moved for summary judgment upon this ground and the trial court granted the motion. Lowe and its umbrella insurer bring this appeal enumerating as error the application of the doctrine of binding precedent in the absence of privity between Royal and Lowe in the earlier judgment in Arkansas. Held:
As we perceive the issue facing the parties and the trial court, it was whether Royal had issued a policy that extended coverage to Lowe for the death of five of its employees and whether it improperly refused to defend a suit based upon employer liability or is now liable for the ascertained losses suffered by Lowe because of the judicially determined employer liability to its employees' survivors (including costs, interest and statutory penalty for failure timely to respond to a claim by the insured). However, the threshold question on the issue of coverage still remained whether the exclusion in the policy of *258 insurance excluding coverage for the masters or crew members of vessels constituted a complete defense to Royal. In the original complaint filed by the survivors in Arkansas as well as the companion suit filed in Alabama, the complainants sought to establish by fact and law that the employees were seamen embarked as crewmen on a vessel in navigable waters so as to qualify them as claimants under the maritime law of the United States. This in substance would entitle them to compensation under the maritime equivalent of the Federal Employees Liability Act and authorize them to seek damages for tortious injury. Otherwise, they would be limited to workers' compensation coverage only. That this was clearly understood as the threshold issue in that prior case is manifested by the agreement in the federal court that though Royal had commenced paying workers' compensation benefits pursuant to its policy coverage, if the maritime nature of the incident was established, then Royal was to be discharged from its workers' compensation obligation and previously made payments would be returned.
It is uncontested in the instant case that as between the claimants in the federal court and the appellant Lowe, it has been judicially settled that the five deceased employees were regularly assigned members of the several crews surveying the Red River. These crews were members of small boats that were vessels within the maritime law and had specific duties relative to the boat. Thus, we conclude that it has been finally determined as between Lowe and those claimants that the deceased were members of the crew of a vessel at the time of the incident giving rise to Lowe's liability. The only remaining issue is whether Royal can avail itself of that judicial determination even though Royal was not a party to that litigation.
The doctrine of res judicata arises from a judgment of a court of competent jurisdiction as between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered. Code Ann. § 110-501. A plea of estoppel by judgment stems from the doctrine of res judicata where there has been a former adjudication of the same issues by the parties or their privies, even though the adjudication may not have been upon the same cause of action. Smith v. Wood, 115 Ga. App. 265 (1) (154 SE2d 646). As stated in that same opinion, estoppel by judgment is sometimes referred interchangeably as collateral estoppel or as estoppel by judgment. See Blakely v. Couch, 129 Ga. App. 625, 627 (1) (200 SE2d 493).
Lowe contends, and Royal concedes, neither of these doctrines are applicable to this litigation for there is an absence of privity by Royal to the earlier litigation in the federal court in Arkansas. However, this does not end the matter. Royal argues that the issue of *259 whether the employees were embarked upon a vessel as a member of the crew thereof is conclusive insofar as Lowe is concerned. Royal contends relitigation of that issue is neither appropriate nor proper in view of the doctrine of binding precedent. Succinctly stated, that doctrine provides where the issue of liability has previously been adjudicated with negative results for a party contending for the same rights in subsequent litigation, the former judgment, although not res judicata, estoppel by judgment nor collateral estoppel as to the present action because the parties are different, does constitute binding precedent, inasmuch as the controlling issue (i.e., the prior complaint was cognizable as a maritime claim because the employees were crew members on a vessel engaged on navigable waters of the United States) has already been adjudicated under substantially similar allegations. Bray v. Westinghouse Elec. Corp., 103 Ga. App. 783 (120 SE2d 628). See also Standard Oil Co. v. Harris, 120 Ga. App. 768 (172 SE2d 344) which authorizes the conclusion, in effect, at pp. 769-770, that in view of the results of the Arkansas verdict, a verdict in favor of Lowe against Royal on the same issue could not stand.
As recently as 1973, this court held: "We recognize the validity of the doctrine of `binding precedent' as stated in Bray v. Westinghouse Electric Corp.... and Standard Oil Co. v. Harris...." We too recognize the viability of the doctrine and are bound by the precedent. Joseph v. State, 148 Ga. 166 (96 SE 229). In view of the earlier determination that the deceaseds were members of the crew of a vessel, the trial court did not err in concluding that Royal had no obligation to defend the suits in Arkansas or Alabama or reimburse Lowe or its umbrella insurer for damages paid to satisfy those judgments. See Caswell v. Caswell, 162 Ga. App. 72, 73 (290 SE2d 171).
We recognize that the settlement or compromise in Alabama would not fit the mold of binding precedent because that trial did not proceed through litigation in court with a judicial determination. However, the issues in that case were identical to the Arkansas case, as is indicated from the pleadings in that case. The death resulted from the same accident and the precedent set in the Arkansas case is likewise dispositive of the liability raised in the Alabama settlement.
Judgment affirmed. McMurray, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356227/ | 250 Ga. 368 (1982)
297 S.E.2d 459
MOSS
v.
THE STATE.
39168.
Supreme Court of Georgia.
Decided November 30, 1982.
John M. Brown, for appellant.
V. D. Stockton, District Attorney, W. Brek Barker, Assistant District Attorney, Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Assistant Attorney General, for appellee.
WELTNER, Justice.
Danny Moss shot and killed Aaron Scott with a shotgun. He was tried and convicted of murder and sentenced to life imprisonment.
1. Moss and Scott had been friends since childhood. On the day of the homicide, they had been drinking and working together on a construction project. After work, they purchased and consumed more alcohol, argued about a dispute that had occurred years before, then parted in separate vehicles.
Scott was in the company of another person in a motor vehicle when Moss drove up and stepped from his vehicle, holding a shotgun. Scott stepped from his vehicle, but said nothing.
Scott raised his hands into the air when Moss cursed him, then turned his back, with his hands still raised, and said, "Shoot if you want." He then turned to face Moss, hands still in the air, at which time Moss raised the shotgun and fired, killing him with a blast fired from a distance that left powder burns on Scott's body.
A closed pocket knife was recovered from Scott's pocket. Medical evidence indicated that Scott would have been unable to close and return to his pocket the knife after the shotgun blast, which produced near instantaneous death.
We have no hesitation in finding the evidence sufficient to sustain the conviction under the current legal standard. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. The failure of the trial court to charge involuntary manslaughter was not error, as Moss withdrew his written request to charge. State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).
3. No challenge to the array of the grand jury was filed. Instead, Moss moved to dismiss the indictment under the contention that no woman had served as foreperson of a Rabun County grand jury during the last ten years.
Under Georgia law, the court may appoint a grand jury foreperson, or may direct the grand jury to elect its own foreperson. OCGA § 15-12-67 (a) (Code Ann. § 59-208). Rabun County grand *369 jurors by tradition have elected their forepersons. Moss has failed to prove discrimination under the criteria enunciated in Rose v. Mitchell, 443 U. S. 545, 565 (99 SC 2993, 61 LE2d 739) (1979), and Guice v. Fortenberry, 633 F2d 699 (5the Cir. 1980), which pertain to racial discrimination in the appointment of grand jury forepersons by the trial judge.
4. Moss contends that at least three unidentified venirepersons should have been excused by the court after their voir dire responses indicated that they would be inclined toward the prosecution because they were aware of his reputation in the community, including his previous convictions for other crimes.
No juror impanelled indicated an inability to lay aside any impression or opinion previously formed, or render a verdict based on the court's charge and the evidence. Irvin v. Dowd, 366 U. S. 717 (81 SC 1639, 6 LE2d 751) (1961). This enumeration is without merit.
5. In support of his motion for change of venue, Moss succeeded in showing that many residents of his county were aware of the charges against him and of his previous convictions, and that some had formed opinions about his case. But every juror impanelled stated affirmatively that any knowledge or opinion could be laid aside, and the case tried under the evidence and the law given in charge. Moss has shown neither that the setting of the trial was inherently prejudicial nor that actual prejudice existed to such a degree that a fair trial was impossible. Murphy v. Florida, 421 U. S. 794 (95 SC 2031, 44 LE2d 589) (1975). "[U]nder Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a `trial atmosphere . . . utterly corrupted by press coverage,'" Dobbert v. Florida, 432 U. S. 282, 303 (97 SC 2290, 53 LE2d 344) (1977). We find no error.
6. In an effort to comply with the holding of Estelle v. Smith, 451 U. S. 454 (101 SC 1866, 68 LE2d 359) (1981), indicating that an accused should be advised prior to a court-ordered psychiatric examination of his right to remain silent and to terminate further questioning, the trial court provided in the order granting the motion for an examination filed by Moss that Miranda warnings[1] be administered prior to commencement of the examination. The examination was for the purpose of determining whether Moss was *370 capable of assisting in his defense and whether he knew right from wrong at the time of the incident. When the questions of the medical examiner touched upon the events surrounding the shooting, Moss exercised his right to terminate further questioning, and the interview ended.
Moss contends that the cessation of the examination at the point when he exercised his Miranda rights deprived him of medical testimony upon which he had planned to rely as the basis for his special and general insanity pleas. He contends that the State acted in bad faith because the examiner asked some questions relating to the specific incidents surrounding the alleged crime.
We disagree. In the circumstances, the examiner did only that which he was required to do, that is, to stop the questioning. Estelle v. Smith, supra. The consequence of that is attributable to Moss himself, not the State.
Judgment affirmed. All the Justices concur, except Hill, C. J. and Smith, J., who concur specially.
HILL, Chief Justice, concurring specially.
I concur in the judgment of affirmance in this case. However, I am unable to agree with the implication in Division 6 that Estelle v. Smith, 451 U. S. 454 (101 SC 1866, 68 LE2d 359) (1981), requires the giving of modified Miranda warning before commencement of a psychiatric examination requested by the defendant. Here, the defendant moved for the examination whereas in Estelle v. Smith, the defendant did not seek such an examination.
More significantly, in Estelle v. Smith, supra, the psychiatrist gave testimony against the defendant in the sentencing phase of a bifurcated death penalty case based upon his examination of the defendant as to the details of the crime. The Supreme Court observed that if the psychiatrist had limited his testimony to the issue of the defendant's competency, no Fifth Amendment issue would have arisen. 451 U. S. at 465 (101 SC at 1874, 68 LE2d at 370).
In my view, where the defendant, after consultation with and advice of his counsel, seeks a court ordered psychiatric examination, Miranda warnings are not required so long as the psychiatrist limits *371 his testimony to matters relating to the defendant's competency. See Estelle v. Smith, supra.
I am authorized to state that Justice Smith joins in this special concurrence.
NOTES
[1] Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356229/ | 250 Ga. 379 (1982)
297 S.E.2d 727
BOONE
v.
STATE OF GEORGIA, DEPARTMENT OF HUMAN RESOURCES ex rel. CARTER.
39059.
Supreme Court of Georgia.
Decided December 1, 1982.
Alexander & Zacker, Edward R. Zacker, for appellant.
E. Jerrell Ramsey, Assistant District Attorney, Michael J. Bowers, Attorney General, Mark H. Cohen, Staff Assistant Attorney General, for appellees.
CLARKE, Justice.
This action arose when the Department of Human Resources brought an action against Mr. Boone seeking recovery of child support payments, alleging Boone to be the father of Daniel G. Carter. Boone denied paternity and this appeal raises a constitutional challenge to Code Ann. § 74-311 which governs the allocation of costs in a paternity action brought under Chapter 74-3.
This case puts in issue the question of whether the State can *380 require a putative father to pay the costs of a blood test requested by the State for the purpose of determining paternity when no hearing has been conducted on the merits of the case. The trial court answered the question affirmatively. We disagree.
The mother of Daniel G. Carter began receiving public assistance for the support of the minor child in 1976. Under the Child Support Recovery Act, Code Chapter 99-9B, the payment of public assistance creates a debt to the State by the parent responsible for support and the recipient of benefits is deemed to have assigned the right to receive child support to the State. Daniel's mother named Mr. Boone as the putative father of the minor child.
On December 23, 1981, the office of the district attorney for the Brunswick Judicial Circuit filed this action on behalf of the Department of Human Resources as authorized by Code Ann. § 99-918b.1. The petition for recovery of child support alleges Boone to be the father of the child and seeks reimbursement of $4,912.00 for previous public assistance payments as well as future support payments. Boone's answer asserts that he is not the father of Daniel G. Carter.
Pursuant to Code Ann. § 74-306, the department moved the court to order Boone to submit to a Human Leukocyte Antigen (HLA) blood test for the purpose of proving or disproving parentage. The department also asked that Boone be required to pay the costs of the blood test at the time they are made. Boone objected to that part of the motion requiring him to pay costs on the grounds that (1) he is indigent and (2) irrespective of indigency, costs of the test should not be assessed against him prior to any hearing on, or determination of, the merits of the paternity issue.
The court held a hearing at which evidence of Boone's financial status was received. The sole issue was ability to pay and the court ruled that Boone was not indigent. The court found the other constitutional arguments to be without merit and ordered Boone to pay costs and submit to HLA blood testing.
For purposes of this appeal, Boone does not challenge the finding that he is not indigent. He does contend that Code Ann. § 74-311 is unconstitutional in that it authorizes the court to require a defendant, in actions brought by the State, to pay costs prior to any hearing on the merits of the state's petition. Specifically he argues that such payments deprive him of his property without due process of law as guaranteed by the state and federal constitutions.
In paternity actions blood tests are not required but may be ordered by the court on a party's motion; the failure to comply with such an order is punishable by contempt. Code Ann. § 74-306.
We have held that a party may be compelled over self-incrimination *381 objections to submit to a blood test under Code Ann. § 74-306 without violating his constitutional rights. Raines v. White, 248 Ga. 406 (284 SE2d 7) (1981). Boone does not contend he may not be compelled to submit to an HLA test. His complaint is to the authority given the trial court under Code Ann. § 74-311 which provides: "The court may order reasonable fees of counsel, experts, and the child's guardian ad litem, and other costs of the action and pretrial proceedings, including blood and other tests, to be paid by the parties in proportions and at times determined by the court."
The State contends that the statute could offend due process only if it operated to deny an indigent paternity defendant access to HLA blood tests as was the case in Little v. Streater, 452 U. S. 1 (101 SC 2202, 68 LE2d 627) (1981). As in our case, the action against the putative father in Little was being pursued by the State to recover public assistance support monies. The Connecticut statute at issue provided that blood tests were admissible and that costs would be chargeable against the party moving for the tests. The posture of that case was different in that the motion for blood testing was made by the putative father who was found to be indigent. The court found that the action was actually brought by the State to recover funds for the State and that State action "pervaded" the case, triggering constitutional obligations and duties which may not be present when private parties are engaged in civil litigation. The court held that to deny access to blood tests in a paternity suit prosecuted by the State due to indigency of the defendant was a denial of due process.
The State argues that since Boone is not indigent, he is able to pay the costs of the tests and is therefore not denied meaningful access to a fair trial as in Little, supra. However, Boone is not the party moving for a blood test in this paternity action. If he were the moving party and able to pay for the tests there would be no constitutional prohibition to his being held responsible for such discovery costs in his behalf.
While the State, as the moving party, may compel a paternity defendant to submit to an HLA test, Raines, supra, we agree with Boone's contention that to compel him to pay costs at that stage of the proceeding is a taking of his property by the State in violation of Art. I, Sec. I, Paragraph I of the Georgia Constitution, "No person shall be deprived of life, liberty, or property, except by due process of law."
At this stage of the proceeding, there is only a bare allegation of Boone's paternity. There has been no hearing on the merits, nor any evidence presented bearing on the likelihood of the State to prevail on the ultimate issues. "To say that a plaintiff, by simply commencing an action and putting in motion the expensive *382 machinery of a court, can commit the estate of a defendant to the payment of such expenses or such costs as may be incurred, without a final judgment finding him in any sense an offender, is confiscation pure and simple, and abhorrent to every principal of justice and right." Ward v. Barnes, 95 Ga. 103, 106 (22 SE 133) (1894). The court in Ward recognized that in certain equity cases the court could be authorized by equitable principles and a balancing of interests to make interlocutory awards of costs prior to final judgment. While the State has a legitimate interest in the determination of paternity and recovery of public assistance funds from those who have a duty to support minor children, to allow the State to extract prepayment of costs for its benefit without the consent of the alleged offender violates principles of fundamental fairness which govern the relationship between this state and its citizens.
In Brainard v. State, 246 Ga. 586 (272 SE2d 683) (1980), we held that while the State may collect costs from a criminal defendant after conviction pursuant to Code Ann. § 27-3801, that part of the statute allowing the judgment to relate back to the time of arrest so as to create an inchoate lien on the property of the accused pending final determination was an unconstitutional deprivation of private property. It was recognized that while the taking could be temporary, the time between the deprivation and a determination on the merits could be substantial. The same principle applies here.
The holding in this case does not bear upon or change the existing rules which authorize the assessment of costs against losing parties in certain cases after a determination or hearing on the merits. Our holding is limited to instances in which payment is required before such a determination or hearing and to the extent that the statute allows the State to compel prepayment of its costs without a hearing on the merits, it is unconstitutional.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356169/ | 290 S.E.2d 574 (1982)
STATE of North Carolina
v.
James Edward DAVIS.
No. 60A81.
Supreme Court of North Carolina.
May 4, 1982.
*576 Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.
Adam Stein, Appellate Defender, and Ann B. Peterson, Asst. Appellate Defender, Raleigh, pro hac vice, for defendant-appellant.
MITCHELL, Justice.
The defendant assigns error in the admission of his inculpatory statement to police, and in the refusal of the trial court to submit to the jury the possible verdict of felony murder in the second degree. For the reasons enunciated herein, we find that the defendant received a fair trial, free of prejudicial error.
The evidence for the State at trial tended to show that the body of Mrs. Myrtle Wilder was found in her home at approximately 6:00 p. m. on 16 August 1980. The deceased was found on her bed fully clothed but with her underpants around her knees. An initial examination of the body revealed seven or eight stab wounds, bruise marks at the base of the neck, slashed wrists and hemorrhages under the eyelids.
A later autopsy revealed that Mrs. Wilder had suffered eight stab wounds to the abdominal area, some as deep as five inches. The area around her neck was bruised with bruising and hemorrhaging into some of the organs around the neck and larynx. Her face was bruised and scraped, her wrists slashed and her neck broken.
Dr. John D. Butts, Senior Associate Chief Medical Examiner for the State of North Carolina and a forensic pathologist, testified that the hemorrhages under Mrs. Wilder's eyelids were consistent with death by asphyxiation through smothering or strangling. In his opinion, her broken neck would not have caused this condition, nor would strangulation ordinarily cause a broken neck. The manner in which Mrs. Wilder's neck had been broken was more consistent with a whiplash type injury. In Dr. Butts' opinion, the victim was alive when all of the injuries described were inflicted upon her. Due to the advanced age of the deceased and the condition of the body, Dr. Butts could not give an approximate estimate as to the time of her death. The examination of the deceased revealed no evidence of a sexual assault.
An investigation of the crime scene revealed a towel containing a portion of screen wire immediately outside the home. One of the windows in the home showed evidence of forced entry or exit. The screen had been torn off and the sliding window was open.
*577 Mrs. Wilder's purse was found in the home but contained no money. The body was found on Saturday, 16 August 1980. Mrs. Wilder's daughter testified that she went grocery shopping with Mrs. Wilder every Sunday, and Mrs. Wilder customarily paid for her groceries in cash. She usually spent from $20.00 to $25.00 on such occasions. When Mrs. Wilder's body was found, she was still wearing her rings.
A diary written and kept by the deceased was found in the home. The diary contained an entry in her hand indicating that she made the entry on the morning of 16 August 1980. Friends and relatives tried to contact Mrs. Wilder after 9:00 a. m. on that morning and received no response. Her body was discovered at approximately 6:00 p. m.
Sometime on or before 2 September 1980, Detective Lee Warren of the Asheville Police Department received information leading him to consider the defendant as a possible suspect in the murder of Mrs. Wilder. He left a note at the home of the defendant's grandmother on 2 September 1980 and indicated that he would like to talk to the defendant. The defendant's grandmother lived two houses away from Mrs. Wilder's home.
Sometime prior to 5:55 p. m. on 4 September 1980, the defendant came into the Asheville Police Department and asked for Detective Warren. Detective Warren was contacted by radio and came into the detective offices of the police department to talk to the defendant. Having given the defendant the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Detective Warren questioned him about the murder of Mrs. Wilder. The defendant claimed no knowledge of the crime. The defendant agreed to take a polygraph examination but, once inside the polygraph room and informed of the questions to be asked, declined to take the test.
Detective Warren offered the defendant a ride home at approximately 8:00 p. m. which the defendant accepted. Detective Warren asked the defendant if he would return to the police station at 10:00 p. m. The defendant indicated that he would.
That evening the defendant was again given his Miranda warnings in the police station and confessed to the murder of Mrs. Wilder. The facts surrounding this confession will be discussed in greater detail at a later point in this opinion. The defendant stated that he went to his grandmother's home on 16 August 1980. After staying there for a short while, he went to an abandoned house and drank liquor. He returned past Mrs. Wilder's home and decided to break into her house. He knocked at the front and back door and received no answer. He then went to a window of the house, took out the screen and went inside. When he entered Mrs. Wilder's house, her dog began barking and attempted to bite him. He kicked the dog. Mrs. Wilder, who had apparently been in the house all the time, hit the defendant and he hit her back. She fell. The defendant picked Mrs. Wilder up and took her to her bed. He placed her on the bed, then went to the kitchen and got a knife. When he returned to the bedroom, Mrs. Wilder was regaining consciousness. He began stabbing her. After stabbing Mrs. Wilder, the defendant wrapped the knife in a towel and went out the back window. He threw the knife in a garbage can, but later retrieved it and threw it in a river when he saw the police at Mrs. Wilder's home.
Kenneth S. Fritz testified that he lived near the deceased and arrived home at approximately 7:45 p. m. on 16 August 1980. He observed activity around Mrs. Wilder's home at that time and saw and spoke to the defendant. The defendant told him that Mrs. Wilder had been murdered and that she had been stabbed eight times. The defendant told Fritz that he had not discussed the murder with anyone. Mrs. Frances Barbour testified that she also had seen the defendant at the home of the deceased from about 7:15 p. m. to 9:00 p. m.
During the course of the trial, the defendant overpowered a law enforcement officer who was opening his cell door, took the officer's pistol from him and escaped. He was recaptured a short time later.
*578 Based upon the foregoing evidence, the jury found the defendant guilty of premeditated murder in the first degree. During the sentencing phase, the jury recommended a sentence of life imprisonment. The trial court entered the sentence recommended.
The defendant assigns as error the admission into evidence of his confession to the crime charged. In support of this assignment, he contends that the confession was taken in a manner violative of several of his constitutional rights.
During the trial, and in response to a pretrial motion to suppress by the defendant, the trial court conducted a voir dire hearing on the admissibility of the defendant's confession. At that time the trial court heard the testimony of three police detectives, Lee Warren, Bill Dayton and Walt E. Robertson. Their testimony for the State tended to show that Officer Warren left a business card containing his name and title with the defendant's grandmother at her home on 2 September 1980 and asked her to have the defendant contact him. Two days later, on 4 September 1980, the defendant came into the detective office of the Asheville Police Department. Officer Warren was not present in the office at that time but was informed by radio that someone was waiting in the office to see him. He returned to the office at approximately 5:45 p. m. and found the defendant waiting for him.
At approximately 5:55 p. m. on 4 September 1980 the defendant was given the Miranda warnings and signed a written waiver of his rights. At that time he also indicated orally that he did not wish to have an attorney present during questioning and that he was prepared to answer questions.
The defendant was questioned concerning the murder of Mrs. Wilder and made an exculpatory statement. This interview took place in a carpeted, well-lighted and air conditioned office which was approximately 14' × 14' in size. During the questioning the defendant was given a soft drink on at least one occasion. During this visit to the detective offices, the defendant was given the opportunity to take a polygraph examination. He indicated he would take the examination. He and Detective Warren then went to the polygraph room in the police station, where Detective Warren prepared the machine and formulated the questions to be asked of the defendant. The defendant asked what questions were to be asked of him, and Detective Warren read or showed them to him. The defendant then stated that he was not going to take the polygraph examination. After the defendant declined to take the polygraph examination, he was offered and given a ride home by the detective a little after 7:00 p. m. The entire time involved in the defendant's first contact with the detectives was from two hours and ten minutes to two and one half hours.
When the officers took the defendant home, they indicated to him that they would like to meet with him again at 10:00 p. m. that evening. The defendant agreed to meet the detectives at the appointed time, and the detectives went to a restaurant for the evening meal. At approximately 10:00 p. m. the detectives were preparing to return to the office and called to determine whether the defendant had arrived there. They were informed that he had not. They drove through the general area of his residence to see if he was already walking toward the detective offices and to offer him a ride if he was. On their way to their offices, the detectives saw the defendant and asked him if he wanted a ride. He got into the car with the three officers at approximately 10:05 p. m. The group then proceeded to the detective offices. During the ride to the offices, Detective Robertson discussed the defendant's "curly kit" or "jelly curl" which is apparently a hairstyle. Detective Robertson complimented the defendant on his hairstyle, said he had been considering having his hair styled similarly and inquired as to who "put it in for him." The two men also discussed mutual friends and made other small talk. The criminal investigation was not mentioned during the ride to the offices.
*579 Upon reaching the police station, the defendant was taken to a carpeted air conditioned room approximately 24' × 12' in size. He was again advised of his Miranda rights both orally and in writing. He executed a second written waiver of rights at approximately 10:14 p. m. He also affirmatively indicated orally that he wished to proceed to answer questions without an attorney present. One of the officers began to question him about the crime under investigation. Detective Robertson or Detective Warren placed before the defendant several photographs of the crime scene including photographs of the body of the deceased. The defendant indicated he did not wish to discuss the case and stated he could not look at the photographs. He began to cry and turned the photographs near him face down or pushed them away. The defendant asked to go to a bathroom. Detective Robertson took him to a nearby bathroom and they then returned to the conference room.
When they returned the defendant took the same seat at the table. The photographs were still where he had left them. At this time the defendant began to cry and stated that whenever he tried to sleep, all he could see was Mrs. Wilder's face and that he had not been able to sleep since it happened. He stated that, "I need to talk to somebody about this." Detective Robertson then told the defendant, "Well, James, you can talk to us about it." The defendant then made the oral confession previously outlined in this opinion. At some point during this latter exchange the defendant again asked to go to the bathroom and again was taken by Detective Robertson. He was also given a soft drink.
Detective Warren testified that he handed the defendant the Miranda rights waiver he had already signed to read again just before the defendant made his confession. The defendant looked at it and appeared to read it, but did not read the document aloud.
After the defendant gave his oral confession to the detectives, a stenographer was called at her home and came to the detective offices in the police department. The defendant repeated his confession to the stenographer who reduced it to writing. The defendant signed the written confession.
The defendant offered no evidence during the voir dire hearing. At the conclusion of the hearing on voir dire, the trial court made findings of fact and conclusions of law and admitted evidence relating to the defendant's confession.
By his first assignment of error, the defendant contends that his station house confession was coerced and was taken in violation of his right to due process of law and to be free from self-incrimination. The defendant readily concedes that he was twice given the Miranda warnings and signed a waiver of his rights on both occasions. He does not contend that the warnings were either absent or inadequate. Instead, he contends that he was not heeded when he stated that he did not want to talk about the case under investigation and that any statement taken after he expressed this desire to the officers was a product of compulsion and involuntary as a matter of law. In the context of the case before us, we do not agree with the defendant's contention.
In support of this contention the defendant points out the statement in Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 1627-28, 16 L. Ed. 2d 694, 723 (1966) that:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.
The narrow issue before the Court in Miranda, however, was precisely stated as "the admissibility of statements obtained from an individual who is subjected to custodial police interrogation." Id. at 439, 86 S.Ct. at 1609, 16 L.Ed.2d at 704; State v. Martin, 294 N.C. 702, 242 S.E.2d 762 (1978). *580 The Court also stated in the opinion that: "The constitutional issue we decide ... is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 445, 86 S.Ct. at 1612, 16 L.Ed.2d at 707.
In more recent cases, the Supreme Court of the United States has specifically rejected arguments that the principles of Miranda should be extended to cover interrogation in non-custodial circumstances after a police investigation has focused on the suspect and has stated that such arguments go "far beyond the reasons for that holding and such an extension of the Miranda requirements would cut this Court's holding in that case completely loose from its own explicitly stated rationale." Beckwith v. United States, 425 U.S. 341, 345, 96 S. Ct. 1612, 1615, 48 L. Ed. 2d 1, 7 (1976). The Court in Beckwith rejected the petitioner's argument that he was "interrogated" by Internal Revenue Service agents in surroundings where, as in the case of a subject in custody, the practical compulsion to respond to questions about his tax returns was comparable to the psychological pressures described in Miranda. In rejecting his argument that he was placed in a setting which was the functional equivalent of the setting in Miranda and that he should have been given the Miranda warnings, the Court found that although the focus of an investigation may indeed have been on Beckwith at the time of the interview in the sense that it was his tax liability which was under scrutiny, Miranda specifically defined "focus" for its purposes as questioning initiated by law enforcement officers when the suspect is in custody or has been otherwise deprived of his freedom of action in any significant way. Id., 384 U.S. at 347, 96 S.Ct. at 1616, 48 L.Ed.2d at 8.
From the foregoing authorities, it readily can be seen that the warnings required by Miranda need only be given to an individual who is subjected to custodial police interrogation. "Interrogation," for purposes of invoking the Miranda requirements, only occurs when a defendant is in custody, as "The concern of the Court in Miranda was that the `interrogation environment' created by the interplay of interrogation and custody would `subjugate the individual to the will of his examiner' and thereby undermine the privilege against compulsory self-incrimination." Rhode Island v. Innis, 446 U.S. 291, 299, 100 S. Ct. 1682, 1688, 64 L. Ed. 2d 297, 306 (1980). Additionally, the "interrogation" which brings into play the requirements of Miranda, "must reflect a measure of compulsion above and beyond that inherent in custody itself." Id. at 300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307. Thus, if it be concluded that a defendant was not "in custody" at the time of questioning, a reviewing court need not consider whether he was subjected either to express questioning or its equivalent, as such considerations come into play only for the purpose of determining whether a person has been "interrogated" after it has been concluded that he was "in custody" at the crucial time. If it be determined that he was not in custody, then it may be concluded ipso facto that he was not interrogated for Miranda purposes, and the reviewing court is not required to consider whether the respondent waived his rights under Miranda. His confession will be admissible without regard to whether he waived those rights. Id. at 298 n.2, 100 S.Ct. at 1688 n.2, 64 L.Ed.2d at 306 n.2.
Our analysis requires that we now consider whether the defendant was in custody or otherwise deprived of his freedom of action in any significant way at the time he confessed to the crime charged. Both the State and the defendant readily conceded that in the present case there was no probable cause to arrest the defendant or take him into custody prior to his confession. Further, the uncontroverted evidence clearly indicates that, had the defendant chosen to get up and leave the detective offices at the time he gave his confession rather than stay and make that confession, no effort would have been made to stop him.
In determining whether a defendant is "in custody" for Miranda purposes, however, the reviewing court may rely upon *581 neither the subjective intent of the police to restrain him nor the subjective belief of the defendant as to what the police would do if he attempted to leave. Instead, the reviewing court must determine whether the suspect was in custody based upon an objective test of whether a reasonable person in the suspect's position would believe that he had been taken into custody or otherwise deprived of his freedom of action in any significant way or, to the contrary, would believe that he was free to go at will. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980).
With these rules in mind we review the record before us. The trial court's findings of fact after a voir dire hearing concerning the admissibility of the confession are conclusive and binding on the appellate courts when supported by competent evidence. State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977). In the present case, the trial court heard the uncontroverted evidence of the State on voir dire, a part of which has been previously set forth herein. Based upon this evidence, the trial court made the following findings and conclusions:
That Myrtle Wilson Wilder was killed in her home on August 16, 1980, and was discovered in the late afternoon or early evening hours of that date as having died from multiple stab wounds; that an immediate effort was made on the part of law enforcement officers to determine who might be responsible for the death; and on September 4, 1980, after Officer Warren had left a card with the Defendant's grandmother and requested that he come by to discuss the matterwith the Defendant's grandmother on September 2, 1980, requesting that he come by and discuss the matter, the Defendant did in fact arrive at the Asheville Police Station and was seen by Officer Warren and Officer Dayton shortly before 6:00 p. m. That at that time he was not in custody, was advised that the officers wished to discuss with him the killing of Mrs. Wilder, and the Defendant was read his rights as follows: `Before we ask you any questions, you must understand your rights. You have a right to remain silent and not to make any statement. Anything you say can and will be used against you in Court. You have the right to talk to a lawyer and have him present while you are being questioned. If you cannot afford a lawyer, you have the right to request the Court to appoint one for you before you answer questions. If you decide to answer questions now without a lawyer present, you will have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.' That immediately following the rights appears a Waiver of Rights, reading as follows: `I have read this statement of my rights, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, and no pressure or coercion of any kind has been used against me by anyone.' That after the rights and waiver of rights were read to the Defendant, he was asked to read and sign the Waiver, read the Rights and Waiver form and sign the Waiver, if he understood his rights. That he did in fact sign the Waiver of Rights, and his signature was witnessed by Officer Dayton, the time being approximately 5:56 p. m.
That at that time, in response to questions from the officers, he stated that he had known Mrs. Wilder for about 10 years, and at one time was a piano student of hers, and had last seen her as he walked out of her drive, at which time she addressed him indicating that she thought he was in Florida. That sometime before that he had been in her home and helped move boxes for her, but that he knew nothing about her murder; that he was then advised by Officer Warren that he would like to question the Defendant later that evening around 10:00 o'clock. That he was then taken back to his residence in Asheville.
That at one point prior to being taken back to his residence and after having denied any knowledge of the murder about *582 which he was being questioned, he was offered a Polygraph test, which he agreed to take. That he was in the Polygraph room while the machine was being prepared for use during the test, and at that time asked Officer Warren what questions would be asked of him. That when he was advised by Officer Warren what questions would be asked, he declined to take the test, and that it was following this refusal that he was taken home; that throughout this initial period he did not have any odor of alcohol about his person, he did not appear to be under the influence of any alcohol or drugs, his answers to questions asked were responsive, and while nervous and depressed, there was nothing to indicate that he did not know and understand the purpose of his being at the police station or the rights about which he had been advised.
That thereafter during the early evening hours, Officer Dayton, Robertson and Warren had dinner, after which a call was made to determine whether or not the Defendant had returned to the Police Station around 10:00 o'clock. Learning that he had not, the officers drove to the area of the Defendant's home; that he came out of his or someone's apartment, came to the police cruiser, and on being asked if he wanted a ride, got in the cruiser. That on the way to the Police Station no one discussed the case with him, and he was not asked any questions concerning the case, and he was not placed under arrest.
That after getting to the Police Station around 10:00 o'clock, he was again advised of his rights and signed a Waiver of Rights, after having same read to him and tendered for his reading. That this Rights Waiver was witnessed by Officers Dayton and Robertson. That the first warning concerning his rights has been offered and admitted into evidence as State's Exhibit 16, and the second as State's Exhibit 17. That the Defendant knowingly, willingly and understanding and voluntarily signed both Rights Waiver forms, after having full knowledge and understanding of his rights, and at all times fully cooperated with the officers. That after signing the second Rights Waiver and when the officers began discussing the case with him, he first stated that he did not want to talk about the case, but was taken to the restroom at his request, returned, and after looking at some pictures of the deceased, he stated that he had trouble sleeping, that he could only see Mrs. Wilder's face, and he needed to talk to someone about what happened. That on being told by Officer Robertson that he could talk to the officers about what happened, he gave a complete detailed statement of what occurred, said statement being offered and admitted into evidence as State's Exhibit 18.
That it was only after the statement was given that a Warrant was obtained and the Defendant was taken to the Magistrate's Office, that the Defendant was placed under arrest. That he was at no time promised anything or threatened in any way. That on both occasions his answers to questions asked were responsive, and the statement made about what occurred was largely made on Defendant's own part, with very few if any questions being asked. That no promise or threat of any kind was ever made to the Defendant; that no food nor drink was ever denied to the Defendant; that the Defendant never indicated any desire to stop talking during the questioning and never made any request for an attorney or indicated in any way that he did not fully understand his rights, and so indicated affirmatively that he did by signing two Rights Waiver forms. That the statement given in final form was as given by him and taken by Mrs. Stover and indicates an articulate, understandable, comprehensive version of events discussed in detail and in an intelligent manner; that while the Defendant was nervous and depressed, there was nothing to indicate that he was confused or incoherent. His physical condition was good. He seemed to understand the questions asked and responded appropriately and never complained of any problem, mental or physical. That there is absolutely no evidence of any threats, suggestion of violence or show of violence by law enforcement officers to induce the Defendant to make a statement; and that, in fact, all of *583 the evidence is to the contrary; that when the Defendant asked for a Coke, he received one. When he wanted to go to the bathroom, he was permitted to go; and the interrogation occurred in a well lighted, well appointed, air conditioned room.
That the age and educational background of the Defendant has not been given, but that he appears to the Court from personal observation to be a young adult black male of better than average intelligence and in good physical condition at this time, and according to the officers, in good mental and physical condition at the time of the questioning. That although the Defendant became extremely nervous, upset, and cried on at least two occasions as he related the events that took place on the morning of the 16th of August, 1980, he clearly was not confused, remained coherent, understood what he was doing and saying, and gave a detailed, believable account of the incidents occurring on the morning of 16 August, 1980. That Defendant knew at all times during questioning that he was a suspect in the case involving a murderthe murder of Myrtle Wilson Wilder, understood that this could becould result in a first degree murder charge and a possible death verdict.
That the initial interrogation involving possible taking of a Polygraph involved approximately two hours to two-and-a-half hours, and the second interrogation and statement lasted for an even lesser time, as will be revealed by the record.
Based upon the foregoing findings of fact, the Court concludes as a matter of law that there was no offer of hope, reward or inducement to the Defendant to make a statement; that there was no threat or suggestion of violence or show of violence to persuade or induce the Defendant to make a statement; that the statement made by the Defendantthat both statements made by the Defendant on September 4, 1980 were made voluntarily, knowingly, understandingly and independently; that the Defendant was in full understanding of his Constitutional Rights to remain silent and right to counsel and all other rights on both occasions, and so indicated by signing Waiver of Rights forms, as will appear of record; and that he purposely, freely, knowingly and voluntarily waived each of those rights and thereupon made statements to the officers above mentioned.
The defendant quite correctly points out in his brief that the trial court found as a fact that the defendant was not in custody on the first occasion during which he was questioned in the detective offices and that the trial court failed to make any conclusion as to whether the defendant was in custody during the second and crucial period of questioning. The determination whether an individual is "in custody" during an interrogation so as to invoke the requirements of Miranda requires an application of fixed rules of law and results in a conclusion of law and not a finding of fact. To the extent that our prior opinion in State v. Clay, 297 N.C. 555, 256 S.E.2d 176 (1979) may be taken as indicating that this determination is a finding of fact, that case is disapproved.
The defendant further contends, and we agree, that these circumstances do not prevent us from determining the admissibility of the defendant's confession in the present case. Since the legal significance of the findings of fact made by the trial court is a question of law, these findings are sufficient to allow us to resolve the issue presented. See State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981). Further, where the historical facts are uncontroverted and clearly reflected in the record, as in the present case, we may review the trial court's ruling on the admissibility of a confession in the absence of complete findings of fact and conclusions of law and even in the absence of a ruling by the trial court on the admissibility of the confession. See State v. Pearce, 266 N.C. 234, 145 S.E.2d 918 (1966).
It is clear that the trial court's findings were amply supported by the uncontroverted testimony presented on voir dire and previously set forth in part herein. Those findings are, therefore, binding upon us on this appeal. When viewed either in light of *584 the facts found by the trial court or independently in light of the uncontroverted evidence offered on voir dire, it is apparent that the defendant was not taken into custody or otherwise deprived of his freedom of action in any significant way until after he had confessed to the murder in question.
The uncontroverted evidence reveals that the defendant initially came to the detective offices voluntarily and unescorted in response to a request left with his grandmother two days previously. At that time he was asked questions concerning the murder under investigation and made an exculpatory statement. This interview took place in comfortable surroundings in which the defendant was given soft drinks and in no way deprived of any physical necessities. During this first visit to the detective offices on 4 September 1980, the defendant was offered a polygraph examination. He agreed to take the test. Upon asking and being told what questions he would be asked in the course of the polygraph examination, the defendant stated that he would not take the polygraph examination. The defendant thus terminated the interview, was allowed to leave at will and was given a ride home. Nothing in the conduct of the law enforcement officers during the first interview of the defendant would have indicated to a reasonable person in the defendant's position that he had been taken into custody or otherwise deprived of his freedom of action in any way significant or otherwise. See Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977) (per curiam). To the contrary, every indication given the defendant was to the effect that he could terminate the questioning by leaving at any time. He in fact exercised this freedom by stating that he was not going to take the polygraph test and by leaving the police station.
The uncontroverted testimony on voir dire further reveals that the officers asked to see the defendant at the detective offices again at approximately 10:00 p. m. on the evening of 4 September 1980. The defendant agreed to meet with them at that time. After the officers had eaten their evening meal they called their office to determine whether the defendant had arrived. Having determined that the defendant had not yet arrived at their offices, the officers drove through his neighborhood to see if he was walking in that direction. They did not know at that time precisely which house or apartment the defendant lived in but were familiar with the general neighborhood in which he lived. During their drive through the neighborhood, the officers saw the defendant and offered him a ride to the offices. He got into the car with them and they proceeded to the detective offices. The defendant was again interviewed in comfortable circumstances and his physical needs were cared for. When he wanted a soft drink he was given one. When he wanted to go to the bathroom he was allowed to go.
The defendant emphasizes that on the two occasions he went to the bathroom during the second period of questioning he was accompanied by Detective Robertson. He contends that this would have caused a reasonable person in his position to believe that he was not free to go at will. We do not think that this fact can be viewed in isolation so as to mandate the conclusion that the defendant was in custody or otherwise deprived of his freedom in any significant way.
The record before us is silent as to the specific reason for which Detective Robertson accompanied the defendant to the bathroom. The record does indicate that this questioning occurred in the evening hours after most of the doors to the police station had been locked. We are unable to ascertain from the record, however, whether Detective Robertson was required to unlock any doors in order to allow the defendant to use the bathroom. At least on the initial trip to the bathroom, it is as reasonable to believe that Detective Robertson was simply showing the defendant where the bathroom was as to believe that his presence was intended or acted as any restraint upon the defendant. In the context of this record, the reason Detective Robertson accompanied the defendant to the bathroom simply cannot be determined. In any event, *585 when the fact relied upon by the defendant is viewed together with the other indicia upon which a reasonable person in his position would have formed a belief, we think it was insufficient to support the conclusion that a reasonable person would have believed that he was other than free to go at will. Our conclusion that a reasonable person in the defendant's position would have believed he was free to go at will is buttressed by the fact that on the same day and under very nearly identical circumstances, the defendant had in fact exercised his right to terminate questioning by the simple expedient of saying no and leaving the detective offices.
Similarly, we do not think that in the context of these facts the failure specifically to advise the defendant during either the first or second periods of questioning that he was free to go at any time would have indicated to a reasonable person in the defendant's circumstances that he was not free to go at will. The defendant once exercised his right to leave, and we do not believe the conduct of the officers during the second period of questioning differed from that employed during the first period of questioning in any manner so substantial as to indicate to a reasonable person that there had been any significant change in his status which would deprive him of his freedom of action in any way. We conclude that the defendant was not in custody or deprived of his freedom of action in any significant way and that Miranda is not applicable.
As we have indicated, Miranda was designed to provide an effective method by which a suspect could exercise his Fifth Amendment privilege to be free from answering questions when he was in custody and had no other manner in which to exercise this privilege. Miranda's commandment that questioning cease when a suspect indicates he intends to exercise his Fifth Amendment privilege does not apply, however, in situations such as this where the defendant has available the easier and more effective method of invoking the privilege simply by leaving. Neither Miranda nor Michigan v. Mosely, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), also relied upon by the defendant on this point, requires any such result. Nothing in the Constitution prevents a policeman from addressing questions to anyone not in custody or deprived of his freedom of action in any significant way. See United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Law enforcement officers enjoy the same liberty as every other citizen to address questions to other persons. When those persons are not in custody or deprived of their freedom of action in any significant way, they have an equal right to ignore such questions and walk away and do not need the protection of Miranda. Id. The defendant in the present case was one of the class of people entitled to walk away rather than answer questions and was not in need of or entitled to the protections of Miranda.
Additionally, strong considerations of public policy convince us that we should not adopt the defendant's position that, once Miranda warnings have been given unnecessarily to a defendant who has not been subjected to custodial interrogation, the requirements of Miranda apply with full force as though he had been subjected to custodial interrogation. We fear that to do so would, in many cases, discourage officers from giving the Miranda warnings where the issue of custody of the suspect was close. We would not wish to cause any such result.
Our review of the defendant's assignment of error and contentions raises another issue not specifically articulated therein. Although we are not required to consider an issue not squarely presented by an assignment of error, due consideration for the proper administration of justice leads us to conclude that the defendant's assignment here presents the contention that his confession was obtained as the result of an unconstitutional seizure of his person in violation of the Fourth and Fourteenth Amendments. Although a confession "may be found `voluntary' for purposes of the Fifth Amendment, this type of `voluntariness' *586 is merely a `threshold requirement' for Fourth Amendment analysis .... Indeed, if the Fifth Amendment has been violated the Fourth Amendment issue would not have to be reached." Dunaway v. New York, 442 U.S. 200, 217, 99 S. Ct. 2248, 2259, 60 L. Ed. 2d 824, 839 (1979). The test to be employed in determining whether a person is "seized" for purposes of the Fourth Amendment has been specifically set forth by the Supreme Court of the United States as follows:
We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980) (citations omitted). There is no foundation whatsoever for invoking Fourth Amendment safeguards absent such restraint. Id. The same facts which lead us to conclude that the defendant was not taken into custody or otherwise deprived of his freedom of action in any significant way for purposes of the Fifth Amendment lead us to conclude that the defendant was not restrained in such manner as to amount to being seized for purposes of Fourth Amendment analysis. See Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981); and, State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert. denied, 446 U.S. 941, 100 S. Ct. 2164, 64 L. Ed. 2d 795 (1980).
The ultimate test of the admissibility of a confession is whether the statement was in fact voluntarily and understandingly made. State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976). This remains true despite the fact that in a particular case there has been compliance with the procedural requirements of the Fourth and Fifth Amendments. Such procedural compliance standing alone will not necessarily suffice in all cases. It remains for us to make an independent determination of the ultimate issue of voluntariness based upon our examination and consideration of the entire record on appeal. Beckwith v. United States, 425 U.S. 341, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976). Our review of the entire record leads us to conclude that the trial court's findings were supported by competent and uncontroverted evidence. Those findings in turn support the trial court's conclusion that the defendant's confession was voluntarily, knowingly, understandingly and independently made with full understanding of his constitutional rights. We agree and concur in the trial court's conclusion and find that the admission of the defendant's confession into evidence was free of prejudicial error.
The defendant next assigns as error the action of the trial court in admitting into evidence the diary of the deceased and contends that this deprived him of his right under the Sixth and Fourteenth Amendments to confront the witnesses against him. The last entry in Mrs. Wilder's diary on the page offered into evidence was "Johnny came about 3:30 this a. m. I let him and went back to sleep. He left at 7:15 p. m. I guess breakfast begins at 7:30 on Saturday. I got up at 8:15. Going to be another hot day." Indications in the diary were to the effect that this entry was made on 16 August 1980. The "Johnny" referred to in the diary entry was apparently the grandson of the deceased who lived with her. The diary entry was offered into evidence by the State for the purpose of tending to show that the deceased was still alive at 8:15 a. m. on the day her body was found.
Assuming arguendo that the diary entry was offered to prove the matters asserted *587 therein, we find it to be hearsay evidence exceptionally admissible. "The twofold basis for exceptions to the rule excluding hearsay evidence is necessity and a reasonable probability of truthfulness." State v. Vestal, 278 N.C. 561, 582, 180 S.E.2d 755, 769 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973). The death of Mrs. Wilder established necessity as she was the declarant and unavailable as a witness. Id. We think that the reasonable probability of truthfulness of the diary entry is clear. It is obvious that Mrs. Wilder had to be alive in order to make the entry in her diary, and there is simply no reason whatsoever to believe that a woman would lie in her personal diary about a matter so mundane as the time at which she got out of bed. This evidence was properly admitted.
The defendant's real complaint concerning the introduction of the diary entry seems to be that it saved the State the necessity of calling Johnny Randolph, the grandson of the deceased, to testify that he saw his grandmother alive on the morning she was murdered and denied the defendant the opportunity to cross-examine Randolph in an attempt to show that he too should have been a suspect. The failure to call Randolph was not relevant to the admissibility of the evidence in question. He did not make the diary entry and presumably was not competent to testify as to most of its contents. If the defendant wished to examine Randolph, the defendant had an opportunity equal to that of the State to call him as a witness and examine him as thoroughly as desired. But the failure of the State to call Randolph as a witness simply has no relevance to the issue of the admissibility of the diary entry. This assignment of error is without merit.
The defendant next assigns as error comments made by the prosecutor in his closing argument to the jury which the defendant contends were grossly improper expressions of personal opinion concerning matters not in evidence. The assignment of error is directed to the following portion of the prosecutor's closing argument to the jury:
You know, this case is completely uncontroverted. The facts in this case are completely uncontroverted. When I took this job over two years ago, I came into this Courtroom, put my hand on this Bible right over there, and I took an oath that I would see that justice was done in this county. Every one of these officers in this courtroom are sworn law enforcement officers. Ladies and gentlemen, we have brought the truth into this courtroom. I ask, who is being honest with you? Who is being honest with you.
The defendant did not object to this portion of the prosecutor's closing argument to the jury and did not take an exception to it before the jury rendered its verdict. When counsel makes an improper remark in arguing to the jury, an exception must be taken before the verdict or the impropriety is waived. State v. Morgan, 299 N.C. 191, 261 S.E.2d 827, cert. denied, 446 U.S. 986, 100 S. Ct. 2971, 64 L. Ed. 2d 844 (1980). But when a prosecutor's comments stray so far from the bounds of propriety as to impede the defendant's right to a fair trial, the trial court has the duty to act ex mero motu. Id. Our examination of the record in the present case leads us to conclude that the quoted portion of the argument of the prosecutor did not stray so far from the bounds of propriety as to require action by the trial court ex mero motu.
Even had the argument of the prosecutor been properly objected to and a timely exception taken, the remarks complained of were not so prejudicial as to require a new trial. The record clearly reveals that defense counsel in his argument to the jury attacked the credibility of the law enforcement officers testifying in the case and made veiled implications that evidence was being withheld. In the portion of the prosecutor's argument to which the assignment of error is directed, the prosecutor merely attempted to respond to defense counsel and to defend the performance of the investigating officers and the manner in which the State presented its case. This response by the prosecutor to *588 the arguments of the defendant's attorney was justified. State v. McCall, 289 N.C. 512, 223 S.E.2d 303, death penalty vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976).
The defendant next assigns as error the failure of the trial court to instruct the jury that they could return a verdict of felony murder in the second degree. We conclude that the law of this jurisdiction recognizes no offense of felony murder in the second degree. The failure to instruct the jury on this theory was correct.
Prior to 1893 any intentional and unlawful killing of a human being with malice aforethought, express or implied, constituted murder punishable by death. State v. Rhyne, 124 N.C. 847, 33 S.E. 128 (1899); State v. Boon, 1 N.C. (Tay.) 191. In 1893 the General Assembly adopted 1893 N.C. Pub.Laws ch. 85, the terms of which are now embodied in G.S. 14-17, dividing murder into two degrees. From that day to the present, this statute has not given any new definition of murder, but permits that to remain as it was at common law. State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949). The statute merely selects from all murders denounced by the common law those deemed most heinous by reason of the mode of their perpetration and classifies them as murder in the first degree, for which a greater punishment is prescribed. Id. Any other intentional and unlawful killing of a human being with malice aforethought, express or implied, remains murder as at common law, but is classified by the statute as murder in the second degree and a lesser sentence is prescribed. State v. Smith, 221 N.C. 278, 20 S.E.2d 313 (1942). The murders classified as murder in the first degree by the 1893 enactment were divided into three basic categories: (1) murders perpetrated by means of poison, lying in wait, imprisonment, starving, or torture, (2) premeditated murder, and (3) killings occurring in the commission of certain specified felonies "or other felony." The third category has frequently been referred to as "felony murder" although that term is not used in the statute and we have discouraged its use in issues submitted to juries. State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977). This Court construed the phrase "or other felony" employed in the statute to include at least those killings committed during the commission of "any other felony inherently dangerous to life" as murder in the first degree, but we specifically reserved for a later time any opinion as to whether the words "or other felony" included any statutory felony not inherently dangerous to life. State v. Streeton, 231 N.C. 301, 305, 56 S.E.2d 649, 652 (1949).
In 1977 the General Assembly, in apparent response to holdings such as in Streeton, amended the statute to substitute for the phrase "or other felony" the phrase "or other felony committed or attempted with the use of a deadly weapon." 1977 N.C. Sess.Laws, ch. 406. As a result of the 1977 amendment, our holdings interpreting the former phrase "or other felony" as including those killings committed during the commission of felonies inherently dangerous to life retain validity only with regard to murders committed prior to the amendment's effective date of 1 June 1977 and should be disregarded on this point in cases involving murders committed after that date. E.g., State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977); State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976); State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975), death penalty vacated, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208 (1976); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Maynard, 247 N.C. 462, 101 S.E.2d 340 (1958); State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949). From the effective date of the 1977 amendment, a killing occurring during the commission of a felony not specified in the statute is murder in the first degree only if the felony was committed or attempted with the use of a deadly weapon.
The statute, including the 1977 and subsequent amendments now states in its entirety:
§ 14.17. Murder in the first and second degree defined; punishment.
*589 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 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. All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class C felon.
As can readily be seen from the face of the statute, murders commonly referred to as "felony murders" now include killings occurring during the commission or attempted commission of a felony with the use of a deadly weapon and killings occurring during the perpetration or attempted perpetration of the specified felonies of arson, rape or a sex offense, robbery, kidnapping, or burglary, without regard to whether these specified felonies were perpetrated or attempted with the use of a deadly weapon. All such murders are deemed by the statute to be murder in the first degree. Conversely, killings occurring during the commission or attempted commission of a felony not committed or attempted with the use of a deadly weapon and not one of the felonies specified in the statute are, nothing else appearing, not murder in either the first or second degree.
If the State is to carry its burden of proof on a charge of murder in cases in which a killing occurs during the commission of a felony committed or attempted without the use of a deadly weapon and not one of the felonies specified in the statute, it must show that the killing was murder as at common law by proof beyond a reasonable doubt that it was an intentional and unlawful killing with malice aforethought. In such cases the State will have borne the burden of proof necessary to sustain a conviction of murder in the second degree. If the State additionally can prove beyond a reasonable doubt that the murder was premeditated and deliberate, it will have borne its burden of proving the offense was murder in the first degree.
The definitions of the terms "malice aforethought" and the terms "premeditation" and "deliberation" as previously applied in this jurisdiction remain unchanged by our holding in this case. See State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). Additionally, our holding today does not affect cases involving deaths arising by means of poison, lying in wait, imprisonment, starving or torture, which continue to the same extent as before to be classified by the statute as murder in the first degree.
We are aware of the fact that the North Carolina Pattern Jury Instructions frequently employed by our trial courts in instructing juries include an instruction relative to "Second Degree Murder in Perpetration of Felony." N.C.P.I.206.31. As we have indicated that no such crime is a part of the law of this jurisdiction, the proposed instruction should not be used by trial courts.
Perhaps the apparent confusion in interpreting G.S. 14-17 arises from the current wording of the second sentence of the statute. From its enactment in 1893, the second sentence of the statute has stated: "All other kinds of murder shall be deemed murder in the second degree." This sentence of the statute was amended effective 1 July 1980. 1979 N.C.Sess.Laws, ch. 1251 (2nd Sess.). The sentence in pertinent part now states:
All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium when *590 the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, ....
G.S. 14-17. By including the language relative to murders proximately caused by the distribution of controlled substances in the sentence declaring "all other kinds of murder" to be classified as murder in the second degree, we do not think the legislature intended to alter the law substantially. Instead, we think the legislature merely reaffirmed its desire that we not expand our former line of holdings interpreting the words "or other felony," as set forth in the first sentence of the statute prior to the 1977 amendment, so as to include within the definition of murder in the first degree those killings occurring during the commission or attempted commission of a felony not specified in the statute and not involving the use of a deadly weapon. We believe that our interpretation of the 1977 amendment addresses the same concern and that the cited amendment of 1979 relative to murders proximately caused by the unlawful distribution of controlled substances was intended to do no more. More specifically, we do not think the legislature intended to create a crime of murder in the second degree arising solely from the fact that a death results from the unlawful distribution of controlled substances without a showing of intent and malice aforethought. In light of our holding today, we construe the second and final sentence of the statute as requiring only that all intentional and unlawful killings with malice aforethought be classified as murder in the second degree, unless they have for one or more reasons been declared murder in the first degree by the express terms of the statute. Thus, in offering evidence of "all other kinds of murder" as that phrase is employed in the second sentence of the statute, the State must bear the burden of proving that the killing was intentional, unlawful and done with malice aforethought, even though it may have been proximately caused by the unlawful distribution of controlled substances or proximately caused by the commission or the attempted commission of any felony not specified in the first sentence of the statute and without the use of a deadly weapon. In other words, the final sentence of the statute merely indicates that all crimes which were murder at common law remain murder in the second degree, unless otherwise made murder in the first degree under one of the specific classifications of the statutes.
In the instant case, the trial court properly instructed the jury that it could return a verdict of guilty of murder in the first degree under the theory that the defendant acted with premeditation and deliberation. The trial court also properly instructed the jury that it could return a verdict of guilty of murder in the second degree if it found the defendant killed the deceased intentionally and with malice but without premeditation and deliberation. If the jury failed to find the defendant guilty of either first or second-degree murder under these instructions, the trial court properly instructed that the verdict must be not guilty. As we today hold that the law of this jurisdiction recognizes no offense of felony murder in the second degree, the trial court correctly declined to charge on any such theory. The trial court's instructions concerning permissible verdicts were proper, complete and correct.
The defendant's next assignment of error challenges the constitutionality of the following portion of the trial court's instructions to the jury:
If the State proves beyond a reasonable doubt or it is admitted that the Defendant intentionally killed Myrtle Wilson Wilder with a deadly weapon, or intentionally inflicted a wound upon Mrs. Wilder with a deadly weapon that proximately caused her death, the law implies first that the killing was unlawful, and second, that it was done with malice.
The defendant contends that this portion of the instructions to the jury by the trial court created a conclusive presumption of malice and unlawfulness and denied him the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article *591 I, § 24 of the Constitution of North Carolina. It is sufficient for us to point out that we have previously reviewed instructions to juries in other cases which employed the identical operative language employed in the portion of the instructions complained of here. In those cases we found no constitutional infirmity in instructions employing the identical operative language employed in the previously quoted portion of the instructions in the present case. State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981). Cf. State v. White, 300 N.C. 494, 268 S.E.2d 481 (1980). This assignment of error is overruled.
By his final assignment of error, the defendant contends that the procedure set out in G.S. 15A-2000(a)(2) for death qualifying a jury prior to the guilt phase of a trial and requiring the same jury to hear both the guilty phase of the trial and the penalty phase of the trial is unconstitutional. The defendant additionally contends that it is a violation of equal protection of the laws to deny him the funds for an expert to testify as to the "guilt proneness" of jurors who are death qualified. It is the defendant's further contention that "death qualifying" the jury prior to the guilt phase of the trial resulted in a guilt-prone jury and denied him the right to a fair trial as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article I, § 19 of the Constitution of North Carolina. We have previously considered and rejected identical contentions in State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981) and State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1979). This assignment of error is without merit and is overruled.
The defendant received a full and fair trial in the trial court. He has had the further benefit of excellent appellate advocacy before this Court. His trial was free of prejudicial error, and we find
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356238/ | 297 S.E.2d 901 (1982)
Robert Lee COLLINS
v.
Ada L. COLLINS.
No. 15633.
Supreme Court of Appeals of West Virginia.
November 19, 1982.
Dissenting Opinion November 24, 1982.
Anthony G. Halkias, Charleston, for appellee.
*902 Billie Gray, Baltimore, Md., for appellant.
PER CURIAM:
Appellant, Ada L. Collins, appeals from a November 12, 1981 final order of the Circuit Court of Tucker County finding both appellant and her former husband, Robert Lee Collins, unfit, and granting permanent custody of Robert Lee Collins, II, their son, to Bueford and Josephine Collins, the infant's paternal grandparents. Appellant's four assignments of error may be fairly reduced to the single contention that the trial court abused its discretion in awarding custody of the infant to persons other than the primary caretaker. We conclude that the trial judge's decision was amply supported in the record, and affirm.
Robert Lee Collins and Ada L. Collins were married on March 10, 1979 and their child, Robert Lee Collins, II, was born in June of that year. On July 25, 1980, appellee filed a complaint against appellant seeking a divorce on the ground of irreconcilable differences. Appellant did not contest the divorce but sought custody of Robert Lee Collins, II. Appellee resisted appellant's request for custody of the infant. Between September 22, 1980 and April 10, 1981, numerous evidentiary hearings were held on the issue of custody.
On April 28, 1981, the trial judge issued his final order awarding permanent custody of the infant to the paternal grandparents. An opinion accompanying the order set forth the court's findings of fact and conclusions of law.
The trial court found both the appellant and the appellee to be unfit parents. In support of its ruling as to the appellant, the court cited the appellant's consistent failure to adequately clean and organize the home in which she resided with the infant and her two children by a previous marriage. The court found that unsafe conditions prevailed in the home. On one occasion when appellee attempted to exercise his right of visitation with the infant, appellant refused to allow him to take the child. Although admittedly not physically threatened the appellant picked up a rifle and fired at least two shots in the direction of the appellee. Photographs were admitted into evidence purporting to show the vehicle in which the appellee's girlfriend and her two children were seated at the time of the shooting. The vehicle depicted had several bullet holes in it, though appellant suggested these might have been made by shots fired at the car later, in an attempt to fabricate evidence. The trial court concluded, we think quite rightly, that appellant had "demonstrated [a] tendency to be violent as evidenced by her willingness to threaten with and to actually shoot a deadly weapon at human beings when she was upset, but not in any way threatened."
Appellee was found to have no child-rearing experience. He claimed to have assisted in certain child-rearing duties when living with appellant, but the trial court found that he lacked the requisite skills to care for Robert Lee Collins, II. Also, the appellee's workplace and home were considerable distances apart. The appellee reported that he intended to leave the child with his parents while at work. Though the appellee sought custody of the infant, he did not indicate any intention to develop the child care skills which he lacked.
The paternal grandparents were present throughout the many hearings conducted in this matter. They indicated by their testimony that they desired custody of the infant and, in fact, they offered to adopt him. It is undisputed that the grandparents' home is a clean and safe place for the child. The trial judge noted the grandparents' deep emotional commitment to the infant.
This Court has previously set forth the rules governing the determination of permanent custody. In Syllabus Point 6 of Garska v. McCoy, W.Va., 278 S.E.2d 357 (1981) we determined that a fit primary caretaker generally has a right to custody of a child of tender years:
"In a divorce proceeding where custody of a child of tender years is sought by both the mother and father, the court must determine in the first instance *903 whether the primary caretaker is a fit parent, and where the primary caretaker achieves the minimum, objective standard of behavior which qualifies him or her as a fit parent, the trial court must award the child to the primary caretaker."
There is no real dispute in this case that appellant was the infant's primary caretaker. The trial court found, however, that she was an unfit parent and, therefore, refused to award her custody.
This Court has enunciated the standard by which the fitness of a parent is to be judged in several decisions:
"A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her child will be recognized and enforced by the courts." Syl. Pt. 1, Leach v. Bright, W.Va., 270 S.E.2d 793 (1980); Syl. Pt. 2, Hammack v. Wise, W.Va., 211 S.E.2d 118 (1975); Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969); Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).
We have recognized the trial court's discretion in awarding custody must not be disturbed unless clearly wrong.
"The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal." Syl. Pt. 2, Leach v. Bright, W.Va., 270 S.E.2d 793 (1980); Syl. Pt. 2, Funkhouser v. Funkhouser, W.Va., 216 S.E.2d 570 (1975).
In the circumstances presented in this case, we cannot say that the trial court abused its discretion in ruling that both appellant, the infant's mother and primary caretaker, and appellee, the infant's father, were unfit to have permanent custody of the infant; or in granting permanent custody to the infant's paternal grandparents.[*]
Affirmed.
MILLER, C.J., and McGRAW, J., dissent and reserve the right to file a dissenting opinion.
McGRAW, Justice, dissenting:
As the majority correctly notes, a trial court's findings on the issue of child custody are largely discretionary and will not be disturbed on appeal unless clearly wrong. See Leach v. Bright, supra. Although there was considerable contradictory testimony below, there is evidence on the record to support the lower court's findings. However, there is also evidence which indicates that the appellant, despite her limited resources, was making a good faith effort to provide better living conditions for her children. In light of this evidence, I am disturbed by the trial court's decision to grant permanent custody to the infant's paternal grandparents.
I also find confusing the lower court's statement that if either party could demonstrate a favorable change in conditions, they would be permitted to petition the court for a change of custody. However, in order to justify a change of child custody, in addition to a change in circumstances of the party seeking custody, it must also be shown that such change would materially promote the welfare of the child. Horton v. Horton, W.Va., 264 S.E.2d 160 (1980); Cloud v. Cloud, W.Va., 239 S.E.2d 669 (1977). Given the impecunious situation in *904 which the appellant finds herself, it is unlikely that she will be able to meet this standard. I therefore disagree with the majority's statement that "this option protects the parents' legitimate interest in the custody of their child." Majority opinion, supra at 903, fn. On the record before the Court, I believe that a temporary award of custody to the grandparents would have been more appropriate and, indeed, may have been intended by the lower court. I would remand for clarification on this point.
I am authorized to state that Chief Justice MILLER joins me in this dissenting opinion.
NOTES
[*] The trial judge noted in his opinion that if either appellant or appellee demonstrated that they had become a proper person to have custody of the infant, the court would consider a petition for change of custody. We believe this option protects the parents' legitimate interest in custody of their child. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356267/ | 250 Ga. 276 (1982)
297 S.E.2d 255
IN RE PACE.
39195.
Supreme Court of Georgia.
Decided November 22, 1982.
James W. Oxendine & Associates, Robert W. Rodatus, for appellant.
Bryant Huff, District Attorney, Genevieve L. Frazier, Assistant District Attorney, for appellee.
Johnny Mack Brown, pro se.
BELL, Justice.
This case concerns the questions of whether the extradition provisions of the Uniform Reciprocal Enforcement of Support Act (URESA, Code Ann. § 99-906a) apply in criminal extradition proceedings for the crime of non-support, and if they do, what is their effect.
The State of South Carolina brought extradition proceedings against Pace for the crime of non-support. In opposition, Pace filed a petition pursuant to Code Ann. § 99-906a (c) claiming that his compliance with that Code section should relieve him from extradition. The trial court found that Pace's submission to URESA would not relieve him from extradition to South Carolina. In order to proceed with an appeal, Pace filed a habeas petition which was denied. He appeals.
We find that Code Ann. § 99-906a applies in criminal extradition proceedings for the crime of non-support. Its provisions clearly envision such application; subsection (a) (2) provides that "The Governor of this state may:. . . (2) Surrender on demand by the governor of any other state, any person found in this state who is charged with the crime of failing to provide for the support of a person in the other state," and subsection (b) provides that "The provisions for the extradition of criminals not inconsistent with this Code section shall apply to any such demand. . . ." In light of this language and since Code Ann. § 99-906a was enacted after the Uniform Criminal Extradition Act, we hold that the extradition provision of URESA and of the Uniform Criminal Extradition Act must be construed together. See Aikens v. Turner, 241 Ga. 401 (a) (245 SE2d 660) (1978).
The next question is what is the effect of an obligor's compliance with Code Ann. § 99-906a. In this case, Pace has complied with its provisions; he submitted himself to the jurisdiction of the Gwinnett *277 County Superior Court; he expressed his willingness to comply with any of that Court's support orders; and he filed the necessary information in his petition. Pace argues that his compliance relieves him from extradition. We disagree. Code Ann. § 99-906a (c) provides that the obligor (Pace) "may" be relieved of extradition if he complies with its provisions.
The decision on whether to extradite the obligor is placed in the Governor's hands by Code Ann. § 99-906a (e). However, before the Governor may exercise his discretion, the trial court must make a temporary order of support and deliver two certified copies to the Governor and one to the District Attorney. Upon receipt of the order of support and so long as the obligor is complying with the order, the Governor may exercise his discretion and suspend extradition. Code Ann. § 99-906a (e). We note that this procedure allows the Governor to thoroughly review the facts and to determine whether the remedy of the payment of child support is sufficient. If the Governor determines it is not, he can allow extradition to proceed and permit the other state to seek enforcement of its criminal laws in addition to payment of the support obligations.
In this case, the trial court did not allow Pace to have the benefit of the procedures outlined in Code Ann. § 99-906a; i.e., it did not make a temporary order of support and serve it upon the Governor. Consequently, this case must be remanded for action consistent with this opinion.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356265/ | 297 S.E.2d 384 (1982)
STATE of North Carolina
v.
Alfred BURNS.
No. 226A82.
Supreme Court of North Carolina.
December 7, 1982.
*385 Rufus L. Edmisten, Atty. Gen. by Nonnie F. Midgette, Asst. Atty. Gen., Raleigh, for the State.
Douglas R. Hux, Eden, for defendant-appellant.
MITCHELL, Justice.
At trial the State called various witnesses whose testimony tended to show inter alia the following:
Malinda Lea Hardison lived with her mother, her brother Allen and the defendant, her stepfather Alfred Burns, during the summer of 1981. At that time she was nine years old. She testified that during that summer the defendant Alfred Burns required her at various times to commit fellatio and masturbation upon him and that he committed acts of cunnilingus, sexual intercourse and sodomy upon her. These acts took place primarily in a hay barn behind their house in Rockingham County. Some of the acts took place in the house, but Malinda could not recall in which rooms of the house they took place. Malinda also testified that she had seen the defendant make her younger brother Allen perform masturbation upon him. She further testified that sometimes her brother Allen was present when the defendant performed the various sexual acts with or upon her and sometimes she was alone with the defendant on these occasions.
Allen Hardison testified that he was six years old. During the summer of 1981 he had lived with his sister Malinda, his mother and the defendant Alfred Burns. Allen testified that, on more than one occasion during that summer, the defendant Alfred Burns made Allen perform fellatio upon him. Allen also testified that he had seen the defendant perform cunnilingus, sexual intercourse and sodomy upon his sister Malinda during that period of time as well as make her perform fellatio.
Mary Burns testified that she was the mother of Malinda and Allen Hardison and the wife of the defendant Alfred Burns. During the summer of 1981 she was employed outside the home during the evenings and usually returned home at approximately 7:15 a.m. She would then clean the house and go to bed around 11:00 a.m. The defendant usually kept the children while she was sleeping or at work. On the day the defendant was arrested for the crimes charged in the present case, Mary Burns asked the children if Alfred had ever performed any sexual act with them or made them perform such acts upon him. Each child at first denied that such acts had occurred but later stated that they had and described the acts in detail.
Sue Aldridge testified that she was a second and third grade combination teacher in the Rockingham County Schools. Malinda was assigned to her third grade class. Malinda seemed very nervous and at first Aldridge attributed this to her being a new student. The nervousness continued, however, and Malinda began to complain that she was sick. Aldridge would take Malinda to the bathroom, where Malinda would sit on the floor with her head over the commode and say that she was sick. This continued for several days with the child continuing to exhibit nervousness. Malinda came to Aldridge on 21 September 1981 and stated that she had to talk to her. Malinda then told Aldridge that "her stepfather was trying to get her to play with him and she *386 didn't want to." After further conversation with Malinda, Aldridge informed the principal who called the Rockingham Department of Social Services. Amy Tuttle and Wanda Dickerson from the Department of Social Services came to the school that day. Aldridge told them about the situation and introduced Malinda to them and left her with them. She waited for Malinda and later returned with her to the classroom. As the days went on after 21 September 1981, Malinda was much calmer, worked harder and seemed much happier.
Amy Tuttle testified that she worked in protective service for children at the Rockingham Department of Social Services. In that capacity she investigated child abuse and rape cases and negligence and abuse cases against adults. She had been so employed for six years. She talked with Malinda in private for about an hour on 21 September 1981. Malinda described to Tuttle various sexual acts which she said the defendant had performed with and upon her and her brother Allen and sexual acts the defendant had made the children perform upon him in the barn behind their house.
Tuttle further testified that on 28 September 1981 Mary Burns came into Tuttle's office with six-year old Allen. During Tuttle's interview with him, Allen described various sexual acts the defendant had required Allen and Malinda to perform upon him and sexual acts the defendant had performed with and upon Malinda in Allen's presence.
Brenda Maddox testified that she was a marriage and family therapist in Reidsville. She had seen Malinda six times for counseling sessions of about forty-five minutes each. She had also seen Allen on two occasions. Each child described to Maddox certain of the sexual acts in question.
Dr. J.A.N. German, a pediatrician, was stipulated to be a medical expert. She testified that she had examined Malinda Hardison on 21 September 1981. She said that on that date Malinda told her that on occasion the defendant would take Malinda from her bed to his bed and "fondle her and press with his penis in the vaginal area." Malinda complained to Dr. German of pain during urination and rectal pain of approximately one week's duration. Malinda was hesitant about discussing what had happened.
Dr. German testified that her physical examination of Malinda revealed bruises on Malinda's vagina and that the vaginal opening was larger than would be expected in a child of her age. Dr. German testified that she determined this by inspection with a speculum-tracheoscope about five centimeters round. She testified that such examinations were usually done under anesthesia, but that the instrument went into the child's vaginal opening without any problem which was not normal for a child of Malinda's age. Her vaginal examination of Malinda revealed no hymen. She testified that when the hymen is gone in children of Malinda's age tears or tags are usually seen on either side of the vagina. These tags disappear as the person grows older. There were none in Malinda. Dr. German's examination also revealed bruising of tissue and marked tenderness to pressure in Malinda's rectal area. When Dr. German examined Malinda again on 6 October 1981 none of these findings were present except the larger than usual vaginal opening. Dr. German formed the opinion that Malinda's vagina had been penetrated by a foreign object. She recommended counseling for both Malinda and Allen.
The defendant offered evidence through various witnesses tending to show the following:
Patricia Easter testified that she was the defendant's sister and lived in Beaufort, North Carolina. She had seen the defendant with the children frequently before they moved to Rockingham County. Easter testified that the defendant never physically abused or beat the children and sent them to Sunday School. Easter also testified that her husband Frank had been charged with the crime of taking indecent liberties with a nine-year old girl on 14 April 1981 in Beaufort. The defendant attempted to introduce additional testimony *387 by Easter which was excluded. The excluded testimony will be discussed later in this opinion.
The defendant's father, brother and others testified on the defendant's behalf. Their testimony tended to show the defendant's good character and reputation and that he had regularly cared for the children and provided for their needs.
The defendant took the stand and testified in his own behalf. He testified that to his knowledge none of the things the children had testified to had actually occurred.
Other testimony offered on behalf of the State and the defendant will be reviewed hereinafter as the need arises.
The defendant assigns as error the admission into evidence of testimony of various of the State's witnesses with regard to statements made to them by the children Malinda and Allen which related to sexual acts by the defendant with the children. The defendant contends that this testimony was not admissible as it did not tend to corroborate the earlier testimony of the children. This assignment of error is without merit.
Evidence which is inadmissible for substantive or illustrative purposes may nevertheless be admitted as corroborative evidence in appropriate cases when it tends to enhance the credibility of a witness. See Brandis on North Carolina Evidence, §§ 49 & 52 (2nd rev. ed. 1982). In the present case, however, the defendant contends that certain testimony of witnesses concerning statements made to them by the children contradicted the children's testimony and was not corroborative. We do not find this to be the case. The defendant bases this assignment of error upon his exceptions numbered one through six. Exception Number Two related to testimony by Dr. German in which she recounted Allen's description to her of the emission from the defendant during ejaculation. It is unnecessary for us to set forth this testimony in graphic detail in order to state that it was substantially similar to testimony elicited during the direct examination of the child. It is true that the words used by Allen in describing the emission to Dr. German were not identical to the words he used during his testimony at trial. Slight variances or inconsistencies in and between the corroborative testimony and that sought to be corroborated, however, do not render the corroborative testimony inadmissible. State v. Bryant (White and Holloman), 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied sub nom. White v. North Carolina, 410 U.S. 958, 93 S. Ct. 1432, 35 L. Ed. 2d 691, Holloman v. North Carolina, 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973). In the ordinary course of things, an individual will not describe the same event in precisely the same way on any two occasions. Nor is it necessary that a person do so in order that his prior consistent statements be admissible to corroborate his testimony at trial. Indeed, if a person recounted the same event in precisely the same words on several occasions without some minor variations, it might reasonably be suspected that he had contrived and memorized his account. The very minor variances or inconsistencies between Allen's testimony and his prior statement to Dr. German did not make her testimony about this prior statement any less corroborative and it was properly admitted.
The defendant's Exception Number Six is directed to testimony by Amy Tuttle of the Rockingham Department of Social Services that Allen said that the defendant "had not wanted Allen to tell anybody." This statement to Tuttle directly corroborated Allen's statement during his testimony at trial that the defendant "told us not to [talk to anyone] because they would put him in jail." Any minor variance or inconsistency between these two statements was clearly not sufficient to render the statement made by Allen to Tuttle inadmissible as corroborative of Allen's testimony at trial.
The remaining exceptions in support of this assignment relate to other statements of witnesses concerning prior statements of the children. Exception Number One was to Dr. German's testimony that Malinda told her that "on occasion her stepfather would take her from her bed to his bed and fondle her and press with his penis in the *388 vaginal area." Exception Number Three was to testimony by Sue Aldridge, Malinda's teacher, that Malinda told her "that her stepfather was trying to get her to play with him and she didn't want to. She said he wanted her to touch that thing at night at home while her mother was at work." Exception Number Four was to testimony by Tuttle that Malinda had told her that her "stepfather tries to get in bed with meI don't want him in bed with me ... I felt him pushing up against my back." Exception Number Five was to Tuttle's testimony that Allen had told her "that on another occasion they did `more nasty stuff,' that Mr. Burns had played with Allen's hinney and stuck his finger in Malinda's hinney." The defendant contends that this testimony by the witnesses concerning prior statements made to them by the children did not repeat testimony given by the children and did not corroborate the children's testimony.
It is not necessary in every case that evidence tend to prove the precise facts brought out in a witness's testimony before that evidence may be deemed corroborative of such testimony and properly admissible. The term "corroborate" means "[t]o strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence." State v. Case, 253 N.C. 130, 135, 116 S.E.2d 429, 433 (1960), cert. denied, 365 U.S. 830, 81 S. Ct. 717, 5 L. Ed. 2d 707 (1961), quoting BLACK'S LAW DICTIONARY 444 (3d ed.). "Corroborating evidence is supplementary to that already given and tending to strengthen or confirm it." State v. Lassiter, 191 N.C. 210, 212-13, 131 S.E. 577, 579 (1926). In the present case, the corroborative testimony which is the subject of the defendant's exceptions apparently does not restate specific facts testified to by the child witnesses. The children's testimony at trial, however, indicated quite clearly a continuing course of sexual abuse by the defendant of both of them involving sexual intercourse, fellatio, cunnilingus, sodomy, masturbation and other abuse. The prior statements of the children did not inject evidence of acts or crimes of the defendant having no direct bearing upon the crimes charged against him. The children's prior statements to the doctor, a teacher and a social worker, although perhaps not tending to prove the precise narrow facts brought out in the children's testimony during the trial, certainly constituted corroborating evidence supplementary to their testimony and tending to strengthen or confirm their testimony. Therefore, the testimony of the witnesses concerning the prior statements of the children to them was admissible as tending to corroborate the testimony of the children. Whether it in fact corroborated the children's testimony was, of course, a question for the jury after proper instructions from the trial court. Brandis on North Carolina Evidence, § 52 (2nd rev. ed. 1982); see State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).
We further find that, even had the evidence complained of under this assignment been incompetent, its admission into evidence was not reversible error. The defendant at no time objected to any of the testimony which forms the basis for his exceptions under this assignment of error. Nor did he move to strike the testimony or seek to have its admission into evidence restricted to corroborative purposes. Thus, any basis for the defendant's first six exceptions and first assignment of error was lost. See generally 12 Strong's N.C. Index 3d, Trial §§ 15, 15.3 and 15.4.
The defendant also assigns as error the trial court's exclusion of certain evidence he sought to introduce through the testimony of his sister Patricia Easter. The trial court conducted an in camera hearing during which Easter testified that sometime during 1976 or 1977 she caught Malinda and her son Ronald who was Malinda's age "looking at each other." Her son Ronald had his trousers down at the time. Easter stated that her son Ronald "admitted he'd been doing something, but Malinda denied doing anything." Easter testified that Malinda "finally broke down and admitted kissing Ronnie. This was 30 or 40 minutes after I caught them." The trial court excluded this testimony as being inadmissible *389 under G.S. 8-58.6, commonly referred to as the rape victim shield statute.
The defendant contends that the trial court erred in excluding this testimony by Easter as it was offered to show the untruthfulness of the child victim and not her past sexual behavior. We have recently held that G.S. 8-58.6 does not prevent introduction of evidence by a defendant which tends to show untruthfulness on the part of the victim merely because such evidence also tends to reveal past sexual behavior of the victim. State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982). It is unnecessary for us to determine whether the testimony of Easter during the in camera hearing rose to the level of testimony revealing past sexual behavior of the victim within the meaning of G.S. 8-58.6. The conduct described by Easter occurred between the children at least four years prior to the criminal acts charged against the defendant. At that time Malinda and Ronald were each either four or five years old. The conduct involved that sort of "looking at each other" common among children of that age. Whether Malinda immediately told the truth about that incident at that time would, at most, have minimal probative value on the question of her truthfulness at the defendant's trial. Assuming arguendo that such testimony had sufficient probative value to be competent, its exclusion was harmless beyond a reasonable doubt in light of the strong eyewitness testimony of the children and the corroborating medical evidence.
The defendant additionally contends under this assignment of error that the trial court erred in excluding certain other testimony which he sought to elicit from the witness Easter. If allowed to, Easter would have testified that:
I was present when Malinda told Alfred that she had been having sexual dreams. Mary left the house because she was too mad at Malinda because of the incident I testified about in chambers previously. Mary was throwing a fit about it. I told her what Malinda said and I think Alfred did, too.
The defendant contends that this evidence was admissible to rebut testimony by Malinda that she had not told her mother that she had dreamed of any of the sexual events that she had described the defendant as having committed and to rebut the testimony of her mother to the same effect. Easter's excluded testimony did not tend to rebut any such statements by Malinda as it in no way indicated that Malinda in fact ever told her mother that she had had such dreams. At most Easter's testimony tends to indicate that Malinda told the defendant she had had such dreams and that Easter and the defendant told this to Malinda's mother Mary. Even if it is assumed that this excluded testimony of the defendant's sister was admissible, we conclude its exclusion was harmless beyond a reasonable doubt in light of the strong evidence of the two victims and the corroborating medical evidence and other evidence offered by the State. This assignment of error is without merit.
We hold that the defendant received a fair trial, free from prejudicial error.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726050/ | 675 So. 2d 734 (1996)
Nancy BARNARD
v.
David Edward BARNARD.
No. 96-CC-0859.
Supreme Court of Louisiana.
June 24, 1996.
PER CURIAM.[*]
Relator has applied to this court seeking review of the refusal of the court of appeal to consider his application for supervisory writs on the ground that the application was not timely filed under Uniform Rule 4-3.[1]
The following dates are pertinent to the issue of timeliness:
1-25-96 Trial court signed interlocutory judgment
2-6-96 Relator filed motion for trial court to fix time for applying for supervisory writs.
2-15-96 Trial court signed order granting relator until 3-15-96 to file application.
3-8-96 Relator filed application in the court of appeal.
The court of appeal, on its own motion, refused to consider relator's "untimely" application. Hence the application to this court.
The trial court violated Rule 4-3 by fixing the time for filing on a date that was more than thirty days from the date of that court's ruling. Nevertheless, the trial court had authority under Rule 4-3 to extend the deadline for filing beyond the thirty-day limit. Accordingly, since it was the trial court who violated Rule 4-3 and since relator filed his application within the time limit authorized in the order of the trial court, there is no justification for penalizing relator or his client by refusing to consider the application.
*735 Accordingly, the ruling of the court of appeal refusing to consider the application is set aside, and the application is remanded to the court of appeal for consideration and action.
KIMBALL, J., would grant and docket the writ for argument and opinion.
NOTES
[*] CALOGERO, C.J., not on panel.
[1] Uniform Rule 4-3 provides:
When an application for writs is sought to review the actions of a trial court, the trial court shall fix a reasonable time within which the application shall be filed in the appellate court, not to exceed thirty days from the date of the ruling at issue. Upon proper showing, the trial court or the appellate court may extend the time for filing the application upon the filing of a motion for extension of return date by the applicant, filed within the original or an extended return date period. An application not filed in the appellate court within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant's fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application which does not contain this documentation may not be considered by the appellate court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3066467/ | United States Court of Appeals for the Federal Circuit
November 19, 2008
ERRATA
Appeal No. 2007-1518
Precedential Opinion, Volkswagen of America, Inc. v. United States
Decided: August 22, 2008
Please make the following changes:
On page 4, line 7, delete “Customs denied each of Volkswagen’s claims. In response,
f” and insert “F”.
On page 4, line 9, delete “, contesting the denial of the claimed allowances.”.
On page 10, footnote 2, delete “days of importation” and insert “days of liquidation”.
Also delete “days from importation” and insert “days from liquidation”. | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1356369/ | 297 S.E.2d 905 (1982)
Sandra ASHLEY, Guardian of Lura Edith Delp
v.
Hobert DELP and wife, Clyde Delp.
No. 8123SC1336.
Court of Appeals of North Carolina.
December 7, 1982.
*907 Dan R. Murray, Sparta, for plaintiff-appellee.
Franklin Smith, Elkin, for defendant-appellant Hobert Delp.
Vannoy & Reeves by Jimmy D. Reeves, West Jefferson, for defendant-appellee Clyde Delp.
WHICHARD, Judge.
I.
Plaintiff's ward is the sister of appellant. In 1966 a psychologist examined her and determined that she had an intelligence quotient of 44.
The ward lived with her parents until her mother's death in 1966 and her father's death in 1968. She never married or held a job outside the home, though she did perform simple tasks about the house for her parents.
Approximately six months after her father's death the ward moved to a house across the road from appellant and his wife to enable them to care for her. In 1972 she began living in a mobile home in their yard.
The father of appellant and of the ward devised his real property to appellant, the ward, and the surviving children of a deceased son. On 6 May 1976 the ward executed a warranty deed conveying her interest to defendants, appellant and his wife. In January 1979 defendants separated, and on 5 February 1979 the ward was placed in a nursing center.
A psychologist with the North Carolina Division of Social Services examined the ward on 28 August 1979, and her observation and tests indicated the ward was not mentally competent. On 31 October 1979 the ward was judicially declared incompetent, and plaintiff became her legal guardian. Plaintiff, as guardian, instituted this action to recover the real property which her ward had deeded to defendants.
In his answer, in addition to defending the conveyance on the ground of the ward's competency, appellant (1) cross-claimed against his wife to have their deed of separation set aside, or, alternatively, to recover a sum of money on the ground that this action created a cloud on the title to property conveyed by that contract; (2) cross-claimed against his wife and counterclaimed against plaintiff for injuries from their alleged conspiracy in bringing this action; and (3) counterclaimed against plaintiff for monies allegedly due him for services rendered to her ward and betterments placed on her ward's property. The trial court severed the issues and limited trial to plaintiff's action to set aside the deed and appellant's conspiracy claim.
*908 II.
Appellant contends this severance of issues was prejudicial error. Before submission of the case to the jury, he entered a voluntary dismissal as to his claim for betterments; and he does not contend that severance of these claims was error. The only error asserted is severance of his claim concerning the deed of separation.
The severance of issues for separate trials is in the trial court's discretion, and its decision will not be reviewed absent abuse of discretion or a showing that the order affects a substantial right. Insurance Co. v. Transfer, Inc., 14 N.C.App. 481, 484, 188 S.E.2d 612, 614 (1972). The appellant must show that he suffered injury or prejudice from the severance. See In re Moore, 11 N.C.App. 320, 322, 181 S.E.2d 118, 120 (1971). Appellant here has not shown injury or prejudice from the severance, and no abuse of discretion appears.
III.
Appellant contends the court erred in allowing certain witnesses to testify concerning the ward's competency on the date she executed the deed. The first basis for the contention is that these witnesses had not seen or talked with the ward for as long as eight years prior to, or three years after, the time at which she executed the deed; and that this evidence thus was too remote to justify the inference that she was in the same condition when she executed the deed as when observed by the witnesses.
A witness may give his opinion of a person's mental condition on a given date when the witness has had sufficient opportunity to observe the person within a reasonable time before or after the date in question. Moore v. Insurance Co., 266 N.C. 440, 448, 146 S.E.2d 492, 499 (1966). "Evidence of mental condition before and after the critical time is admissible, provided it is not too remote to justify an inference that the same condition existed at the latter time." 1 Brandis on North Carolina Evidence, § 127, pp. 490-91 (2d rev.ed. 1982).
Prior to introduction of the evidence to which error is assigned, three witnesses had testified that they had been with the ward on the date she executed the deed or within a month thereof; that they had known her for 20 to 40 years; that in their opinion she was capable of performing simple tasks, but lacked mental and physical ability to care for herself properly; and that her mental condition had remained essentially the same during all the years they had known her. The subsequent testimony, from witnesses who had not had contact with the ward in close proximity to execution of the deed, was basically of the same import, i.e., that their observation indicated that she was mentally and physically capable of caring for herself only to a very minimal extent. Because this testimony was merely cumulative, we find no prejudice in its admission. The last witness to whose testimony appellant assigns error was a psychologist, qualified as an expert, who discussed his evaluation and testing of the ward and opined that her mental deficiency was ongoing in nature. In light of the consistency of his testimony with other, properly admitted, evidence, its admission was not prejudicial error. See Winborne v. Lloyd, 209 N.C. 483, 486, 183 S.E. 756, 757-58 (1936).
The second basis for this contention relates to the form of the question by which these witnesses were asked their opinion. The question to each was,
... based upon your acquaintance with and observation of [the ward], do you have an opinion satisfactory to yourself as to whether or not [the ward] had sufficient mental capacity to understand the nature and consequences of her act in signing a deed on May 6, 1976, which said deed had the intended effect of conveying her interest in certain real property to the defendants?
No particular form is required for a question regarding mental capacity to execute a deed. See Goins v. McLoud, 231 N.C. 655, 658, 58 S.E.2d 634, 636-37 (1950); Ludwig v. Hart, 40 N.C.App. 188, 191, 252 S.E.2d 270, 273, disc. rev. denied, 297 N.C. *909 454, 256 S.E.2d 807 (1979). The test is whether the question sufficiently inquires as to the witness' opinion of whether the grantor had the ability to understand the nature and consequences of her act. Id. The question here met that test.
IV.
Appellant next contends the court erred by allowing his estranged wife, defendant Clyde Delp, to testify in violation of G.S. § 8-56. This testimony did not relate to confidential communications between the witness and her husband during their marriage, however, but to the relationship and transactions between the witness and the ward and between defendant and the ward. There thus was no error in admitting it.
At one point in her testimony this witness did state, in an unresponsive answer, that the ward had been placed in a rest home because appellant had been an unfaithful husband. In light of the court's sustention of the motion to strike this statement, and of its caution to the jury not to consider it as to any problems between the witness and her husband, there was no abuse of discretion in the denial of appellant's motion for mistrial. Apel v. Coach Co., 267 N.C. 25, 31, 147 S.E.2d 566, 570 (1966); Clemons v. Lewis, 23 N.C.App. 488, 489-90, 209 S.E.2d 291, 292 (1974).
V.
Appellant's contention that the court erred in denying his motion for directed verdict at the close of plaintiff's evidence is without merit. Viewed in the light most favorable to the party opposing the motion, evidence of the ward's mental incapacity on 6 May 1976 was more than sufficient to withstand directed verdict.
VI.
Appellant's contention that the ward's original claim to the property she conveyed was based on a faulty chain of title due to vagueness of the description in the devise from her father is not relevant to this action.
VII.
Appellant asserts prejudicial error in certain evidentiary rulings which he argues prevented his witnesses from testifying as to the ward's mental competency and the facts surrounding her execution of the deed. Each witness asked an opinion of the ward's mental competency was allowed to answer. The court properly sustained objections when answers would have violated the hearsay rule and, in instances concerning preparation and execution of the deed, would have violated the attorney-client privilege between the ward and her attorney. It was equally correct in not allowing appellant to testify regarding certain communications between him and his estranged wife. G.S. § 8-56.
We find no error in the rulings complained of.
VIII.
We also find no error in exclusion of certain of appellant's exhibits. Three of these exhibits were documents relating to the separation between the defendants, an issue raised in the pleadings but severed before trial. Another was a deed from defendants to their son which was irrelevant to the issues at trial.
IX.
We also find no error in the introduction by plaintiff of an unexecuted Trust Agreement, prepared at the request of appellant, under which appellant was to be trustee of certain property belonging to the ward. The document provided specific powers to the trustee effective in the event of institutionalization of the ward. It was relevant to appellant's state of mind concerning the ward's mental capacity.
X.
Appellant contends the court erred in directing a verdict in favor of plaintiff and defendant Clyde Delp on the alleged claim for conspiracy. Citing Burns v. Oil *910 Corporation, 246 N.C. 266, 271-72, 98 S.E.2d 339, 343 (1957), he acknowledges that the gist of an action for civil conspiracy lies in the presence of an overt act or acts committed by one or more of the conspirators according to the conspiracy plan and in furtherance of its purpose. While recognizing the basis of such a claim, however, he fails to point to any evidence to substantiate an overt act performed according to the alleged conspiracy. We find the directed verdict proper.
XI.
Appellant asserts error in the jury instructions. He first objects that portions of the charge conveyed to the jury that the will of the ward's father was an authentic devise to her, a circumstance which appellant disputes. We find no prejudicial error, since the validity of the will was not at issue.
Nor do we find error in the recitation of plaintiff's evidence. The court stated that the "evidence for the plaintiff ... tended to show" that psychologists had determined the ward to be mentally incompetent, that a jury had judged her to be incompetent, and that prior to the making of the deed in 1976 she was not of sufficient mental capacity to execute the deed. It then charged that this "is what some of the evidence for the plaintiff tends to show.... [W]hat it does show is for you and you, alone, to say and determine ...." It then recapitulated the evidence for appellant and stated that it tended to show that "[the ward's] mental capacity was such that she was able to make a deed." We find this a fair and impartial recitation of the evidence for all parties.
The court did err when it referred to the conveyance as comprising 100 acres. This error had no prejudicial effect as to the issue of the mental competency of the ward to execute a deed on 6 May 1976, however.
We find no error in the court's explanation of the legal definition of mental capacity to execute a deed as applied to the facts of this case.
XII.
Appellant finally challenges the allowance of expert witness fees for two psychologists who testified for plaintiff. Appellant did not object when the first witness was received as an expert. We conclude that both were properly received as experts, and that allowance of expert witness fees was proper.
We find the trial free of prejudicial error. The judgment is
Affirmed.
MARTIN and ARNOLD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264653/ | 744 A.2d 367 (2000)
ABINGTON SCHOOL DISTRICT, Appellant,
v.
ABINGTON SCHOOL SERVICE PERSONNEL ASSOCIATION/AFSCME.
Commonwealth Court of Pennsylvania.
Argued December 6, 1999.
Decided January 13, 2000.
Justin M. O'Donoghue, Blue Bell, for appellant.
Eric M. Fink, Philadelphia, for appellee.
Before PELLEGRINI, J., LEADBETTER, J., and McCLOSKEY, Senior Judge.
PELLEGRINI, Judge.
Abington School District (District) appeals from the order of the Court of Common Pleas of Montgomery County (trial court) denying the District's petition for review of the arbitrator's award which modified the District's discipline of Joseph A. Miller (Grievant) from a demotion from group leader to painter and a five-day suspension to just a five-day suspension.
Grievant has been employed by the District as a painter for thirty-five years, and for the last eleven years was the group leader of a painting crew. In carrying out an assignment to paint a bus port, Grievant chose to use a paint sprayer but decided not to use protective sheeting that would prevent any residual spray from coming in contact with items that were not supposed to be painted because he felt *368 there was no wind and there would be no overspray. Incorrect in that assumption, overspray settled on twenty-six vehicles in the school parking lot and bus driveway. In the course of the ensuing investigation, Grievant stated that he had a conversation with Assistant Principal McGinley concerning when the painting was to occur, and also that he did not have the manual for the paint sprayer. However, the manual was easily located by a co-worker in a filing cabinet within his control. As a result of the overspray and purported misrepresentations, the District demoted Grievant from the group leader position to a regular painter and suspended him for five days.
Grievant's bargaining unit, Abington School Service Personnel Association/AFSCME (Association), then filed a grievance contesting the discipline which was denied, and the matter then was submitted to arbitration. At arbitration, the District contended that the demotion was not arbitratable because it fell within the discretionary authority of the District, but the Arbitrator rejected that argument and proceeded to hear testimony. Because the overspray was not in dispute, the testimony centered on why Grievant did not use the protective sheeting. Grievant testified that he did not use protective sheeting because in his experience, it was not needed as it was an almost calm day and any wind was blowing away from any object that would have been affected by the overspray. Other members of his crew testified that they did not object to not hanging protective sheeting because of the weather, but one member testified he told Grievant that it "wouldn't hurt." As to his misrepresentation that he had a conversation with the Assistant Principal, Grievant testified that he retracted that statement during the investigation, noting that it was not him but his crew members that had the conversation. As to the manual, he stated he did not have it because he could not find it. While finding Grievant's initial misrepresentation regarding his conversation with the Assistant Principal inconsequential, and his statement regarding his manual not an intentional misrepresentation but "at worst" the result of his being "careless" and "lazy" in looking for it, the Arbitrator found that Grievant was guilty of inattention in allowing the overspray.
As to the discipline to be imposed, noting that the demotion was considered by the district to be in the nature of discipline for his poor judgment causing the overspray, the Arbitrator found that the parties had established a "progressive discipline procedure" under Article XII, Section 1 of the Collective Bargaining Agreement which provided the following:
With the exception of serious offenses which call for immediate discharge, it is the School District's intention to follow the theory of progressive discipline. Because offenses vary in seriousness, it is impractical to detail with particularity the exact nature of the progressive discipline. Most minor infractions shall first be handled with oral warnings and counseling. If an employee's behavior persists, then a written warning or warnings may follow prior to an employee being suspended.
The Arbitrator found that although the Agreement provided for progressive discipline to be used, Grievant had not been the subject of any discipline during his employment and the demotion was excessive as a progressive disciplinary measure. She then modified the discipline to a five-day suspension only. The District appealed to the trial court which affirmed holding that the Agreement neither defined progressive discipline nor precluded an arbitrator from modifying the initial discipline that the District imposed. This appeal followed.[1]
*369 The District contends that the Arbitrator's award does not derive its essence from the Agreement between the parties. More specifically, it argues that once the Arbitrator found that Grievant used poor judgment in not using protective sheeting, was lazy in looking for the operating manual for the sprayer, and misrepresented that he had a conversation with the Assistant Principal, the Arbitrator exceeded her authority when she eliminated the demotion from the discipline the District imposed. In making that argument, the District contends that Article I, Section 2 of the Agreement provides it with the sole jurisdiction to determine discipline. That Section provides:
The Union recognizes the right of the Board to manage the affairs of the School district and to direct its working force. Except as otherwise provided in this Agreement, nothing shall be deemed to limit the Board in any way in the exercise of the customary functions of management, including the right to determine such areas of discretion or policy as the functions and programs of the School District, its standards of services, its overall budget, the utilization of technology, the organizational structure, the selection of personnel and the maintenance of discipline, order and efficiency in the School District. The Board shall have the right to publish reasonable rules and regulations from time to time that it may consider necessary and proper for the conduct of its business, provided the same are not inconsistent with the terms of this Agreement.
It argues that this provision addresses discipline and discharge for violations of its rules and regulations and because the "maintenance of discipline" is a matter reserved to it, it has the power to decide whether to demote Grievant for incompetent performance.
An arbitrator generally has the power, and specifically under this Agreement, to interpret its provisions. See Article 1, Section 3 of the Agreement.[2]See also Conneaut School Service Personnel Association v. Conneaut School District, 96 Pa.Cmwlth. 586, 508 A.2d 1271 (1986) and we will not reverse unless the interpretation of the agreement fails to draw itself from the essence of the agreement. Regarding whether arbitrators have correctly decided that they had the power to modify discipline imposed by the employer under the Agreement, we have held that where the agreement does not specifically define or designate the discipline to be imposed, and does not specifically state that the employer is the one with sole discretion to determine the discipline, the arbitrator is within his or her authority in construing the agreement to modify the discipline imposed to reflect a reasonable interpretation of the agreement. School District of Springfield Township v. Springfield Township Educational Support Personnel Association, 711 A.2d 602 (Pa.Cmwlth.1998); Upper St. Clair School District v. Upper St. Clair Educational Support Personnel Association, ESPA, PSEA, NEA, 168 Pa.Cmwlth. 1, 649 A.2d 470 (1994).
Addressing what type of provision gives the employer sole discretion to determine discipline, in International Brotherhood of Firemen and Oilers, Local 59 v. Township of Falls, 688 A.2d 269, 271 (Pa.Cmwlth. 1997), we held that an arbitrator had the power to modify discipline where the language reserving to the employer "the right to take proper disciplinary action for violation of established rules and regulations" because it was insufficient to reserve to the employer sole jurisdiction of disciplinary determinations. For the discipline imposed not to be subject to arbitration, the language must be similar to that in Board of Education of the School District of Philadelphia *370 v. Philadelphia Federation of Teachers, AFL-CIO, 147 Pa.Cmwlth. 15, 610 A.2d 506 (1992)[3] which specifically reserved to the district disciplinary matters provided for under the Pennsylvania School Code.[4]
Here, as in International Brotherhood, Article I, Section 2 of the Agreement does not have language specifically reserving the imposition of discipline to the sole discretion of the District such as to preclude the arbitrator's determination that she could modify the discipline. Moreover, Article XII of the Agreement provides that only the most serious offenses will result in an immediate termination, and that most minor infractions are handled through oral warnings and counseling. For all other offenses, progressive discipline is to be followed, but the Agreement does not define "progressive discipline." "Because offenses vary in seriousness, it is impractical to detail with particularity the exact nature of the progressive discipline." Because the Agreement does not define any of these terms or limit the Arbitrator's authority, what constitutes a serious or minor offense and the penalty to impose for an offense calling for progressive discipline are within the Arbitrator's authority to determine; as such, the Arbitrator had the authority to decide that the demotion was to punish Grievant for not using the protective sheeting to stop the overspray, not a simple personnel action as well as modifying the discipline that the District imposed. As a result, the Arbitrator did not exceed her authority in rescinding the demotion and imposing a five-day suspension.
Even if her decision is derived from the essence of the Agreement, the District contends that the Arbitrator's modification of the penalty and rescinding the demotion was "manifestly unreasonable" because she found that Grievant initially misrepresented that he spoke to the Assistant Principal regarding when to paint, was lazy in looking for the manual, and showed poor judgment in not using protective sheeting, and implied that the District bargained away it authority to demote employees for such conduct. While an arbitrator's decision can be reversed when the penalty based on "found facts" is "manifestly unreasonable," Crawford County, 693 A.2d at 1389, it is only applicable where found conduct involved is criminal or it breaches a duty that could harm the public. See e.g., Greene County v. District 2, United Mine Workers of America, 736 A.2d 52 (Pa.Cmwlth.1999) (arbitrator's award reversing a dismissal of a Children and Youth Services employee whose conduct jeopardized the welfare of children by failing to keep accurate and prompt records manifestly unreasonable); Philadelphia Housing Authority v. Union Security Officers # 1, 500 Pa. 213, 455 A.2d 625 (1983) (arbitrator's award reinstating a security guard in Housing Authority project who defrauded a tenant manifestly unreasonable); Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989) (holding that the arbitrator could not modify the LCB's termination of an employee for theft of Commonwealth funds). Claimant's conduct here, even if we put the District's "gloss" on it, is not the type of conduct that calls into play this exception to the essence test because it condones no criminal conduct, potential harm to the public, or is otherwise against *371 public policy. See City of Easton v. American Federation of State, County and Municipal Employees, AFL-CIO, Local 447, 722 A.2d 1111 (Pa.Cmwlth.1998).
Accordingly, because it was within the Arbitrator's authority to modify the discipline imposed by the District, the order of the trial court is affirmed.
ORDER
AND NOW, this 13th day of January, 2000, the order of the Court of Common Pleas of Montgomery County dated May 25, 1999, at No.98-14870, is affirmed.
NOTES
[1] Our scope of review of a grievance arbitration is the "essence test" such that an arbitrator's award will not be overturned if it can, in any rational way, be derived from the agreement between the parties. Community College of Beaver County v. Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977).
[2] Article 1, Section 3 of the Agreement provides that "Arbitration ... shall be the sole and exclusive remedy available to the Union for the final settlement of any differences or disputes under this Agreement."
[3] The agreement in Board of Education of the School District of Philadelphia provided that "the arbitrator shall have no power or authority to make any decision contrary to or inconsistent with terms of the agreement or applicable law or which limits or interferes with the powers and responsibilities of the District." Board of Education of the School District of Philadelphia, 610 A.2d at 508. This Court pointed out that the School Code provided that "the District shall ... have the right at any time to remove an employee for violation of any of the school laws of this Commonwealth or other improper conduct." Id.
[4] Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-514. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264692/ | 744 A.2d 389 (2000)
Radu PACURARIU, M.D.; James Jarick, Sr.; James E. Jarick; David Mock; Mary Dee Mock and Dennison Township, By and Through Its Board of Supervisors, Petitioners,
v.
COMMONWEALTH of Pennsylvania, Pennsylvania Game Commission and Georgetown Conservation Club, Respondents.
Commonwealth Court of Pennsylvania.
Submitted on Briefs December 6, 1999.
Decided January 14, 2000.
*391 John G. Dean, Scranton, for petitioners.
R. Douglas Sherman, Harrisburg, for respondent, PA Game Com'n.
Before SMITH, J., FRIEDMAN, J., and MIRARCHI, Jr., Senior Judge.
FRIEDMAN, Judge.
Radu Pacurariu, M.D., James Jarick, Sr., James E. Jarick, David Mock, Mary Dee Mock, and Dennison Township By and Through Its Board of Supervisors (Board) (collectively, Petitioners) have filed a Complaint in Equity and Petition for Review (Petition) in this court's original jurisdiction seeking an injunction prohibiting the Commonwealth of Pennsylvania, Pennsylvania Game Commission (Commission) and Georgetown Conservation Club (collectively, Respondents) from constructing a shooting range on State Game Lands 119 (SGL 119) in Dennison Township, Luzerne County. The Commission has filed a preliminary objection to the Petition in the nature of a demurrer, which is presently before this court for disposition.[1]
SGL 119 consists of approximately 16,000 square acres of land in Dennison Township. (Petition, para. 16.) The individual Petitioners here own property and reside along Tunnel Road, a county road that traverses SGL 119. (Petition, paras. 5-10, 16.) On February 25, 1999, at a special Commission meeting open to the public, Commissioner George Venesky presented a motion to approve Georgetown Conservation Club's construction of a shooting range on SGL 119 adjacent to Tunnel Road. (Petition, para. 17.) At the meeting, Commissioner Dennis Fredericks asked Commissioner Venesky why the Commission did not follow established procedures by studying the need for a shooting range in that location, the appropriateness of the location for such a dangerous activity and input from the neighboring public. (Petition, paras. 19-20.) Commissioner Venesky stated that feedback from the public was 100% positive and that the Georgetown Conservation Club would construct the shooting range at no expense to the Commission or to taxpayers. (Petition, para. 20.) Commissioner Venesky thus persuaded the Commission to pass his motion by a five-to-one vote. (Petition, para. 20.)
Petitioners learned about the shooting range through a March 4, 1999 newspaper article about the Commission's meeting. (Petition, paras. 21-22.) After reading the article, Dr. Pacurariu contacted Commissioner Venesky to express his concerns, and Commissioner Venesky advised Dr. Pacurariu not to worry about the shooting range because it would be constructed more than one mile from his property. (Petition, paras. 23-24.) The other individual Petitioners circulated a petition opposing *392 the shooting range; the petition was signed by more than 100 township residents and forwarded to the Commission. (Petition, para. 25.) The public also sent more than 100 letters of protest to Vernon Ross, the Commission's Executive Director. (Petition, para. 26.) The Board invited Commissioner Venesky to attend a Board meeting to discuss the shooting range, but Commissioner Venesky refused. (Petition, para. 27.) However, Commissioner Venesky did meet with some of the individual Petitioners and explained that the Commission selected the location for the shooting range because of its convenience. (Petition, para. 28.)
At the Commission's regular June meeting, Commissioner Venesky made a motion for $8000.00 in appropriation money for the shooting range. (Petition, paras. 30-31.) In response to this request, Commissioner Robert J. Guilford stated: "[O]riginally [Venesky] said the range would be built at no cost. The local residents are not enthralled with the idea." (Petition, para. 32.) Thus, Commissioner Guilford voted against the motion. (Petition, para. 32.) Commissioner Samuel J. Dunkle stated: "I made a mistake back in February when I voted in favor of this range. We did not allow due process to take effect." (Petition, para. 33.) Roger Layman, from the Commission's Land Management Division, stated that, if the standard feasibility study were performed, it would show that the shooting range would not be needed. (Petition, para. 34.) Nevertheless, the Commission passed the motion by a four-to-three vote. (Petition, para. 35.)
Respondents are now proceeding with construction of the shooting range without permits from the township. Although a newspaper article quoted Commissioner Venesky as saying that the Commission applied for proper permits from the township, the Commission has not actually applied for any permits and does not intend to do so. (Petition, paras. 39-41.) However, the Commission did inquire about the cost of permit applications. (Petition, para. 40.) In addition, the Commission stated in a letter to the township that, as to the local noise ordinance, the Commission would consider "the use of sound baffles to deaden sound around the range if the Township is willing to forego all opposition to the range." (Petition, para. 41.)
Respondents are also proceeding with construction of the shooting range despite potential danger to Petitioners. Dr. Pacurariu's Tunnel Road home is located within 150 yards of the proposed shooting range, down a slope, and is serviced by a well. (Petition, paras. 44, 50-51.) Shooters using the range will deposit thousands of lead bullets into the soil. (Petition, para. 50.) David Mock, a boy scout leader, hikes within 150 yards of the proposed shooting range with his boy scout troop. (Petition, para. 45.) The Rails for Trails hiking trail is within a few feet of the proposed shooting range. (Petition, para. 46.)
On August 25, 1999, Petitioners filed their Petition with this court, seeking an injunction to prohibit construction of the shooting range until Respondents abide by the Commission's "standard due diligence feasibility protocols in determining the location of the proposed shooting range" and until Respondents apply for permits from the township. At the same time, Petitioners filed an Application for Expedited Consideration of Request for Injunctive Relief (Application). This court granted the Application and scheduled a September 2, 1999 hearing on Petitioners' request for a preliminary injunction.
On September 13, 1999, the Commission filed a preliminary objection to the Petition in the nature of demurrer.[2] On September 24, 1999, this court issued a memorandum *393 opinion denying Petitioners' request for a preliminary injunction. The Commission's demurrer is now before this court for disposition.
I. Local Ordinances
The Commission first argues that the Commission is not subject to the township's ordinances. Thus, according to the Commission, it need not apply for permits from the township. Moreover, the Commission maintains that it is premature to determine whether the shooting range would violate local noise ordinances.
Section 721 of the Game and Wildlife Code, 34 Pa.C.S. § 721 (emphasis added), states as follows:
The administration of all lands or waters owned, leased or otherwise controlled by the [C]ommission shall be under the sole control of the director, and the [C]ommission shall promulgate regulations consistent with the purpose of this title for its use and protection as necessary to properly manage these lands or waters. The acquisition, use and management of such lands or waters owned, leased or otherwise controlled by the [C]ommission ... shall not be subject to regulation by counties or municipalities.
The Commission asserts in its brief that the last sentence of this section was added in 1990 in response to our supreme court's holding in Department of General Services v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984).
In Ogontz, our supreme court held that, absent a clear legislative intent to give a state agency preemptive land use powers, the state agency must comply with local zoning and land use regulations. Here, section 721 specifically states that the use and management of land controlled by the Commission is governed by regulations promulgated by the Commission and is not subject to local regulation. In view of this clear legislative intent in section 721 to give the Commission power to regulate land under its control, we agree with the Commission that the Petition fails to state a cause of action based on the Commission's failure to apply for permits from the township.
However, we do not agree with the Commission that it is premature to determine whether the shooting range would violate local noise ordinances. Sections 1 and 2 of the Act of June 2, 1988, P.L. 452, as amended, 35 P.S. §§ 4501 and 4502 (hereinafter, Noise Pollution Act) (emphasis added), state that owners of shooting ranges are immune from any action relating to noise or noise pollution, provided that the owners "are in compliance with any applicable noise control laws or ordinances extant at the time construction of the range was initiated." Because the Noise Pollution Act specifically states that, for owners to avoid liability, a shooting range must comply with noise control ordinances "at the time construction of the range [is] initiated," it is not premature to determine whether the shooting range here complies with local noise ordinances.[3] Thus, the Petition states a cause of action to the extent that it seeks compliance with local noise ordinances.
II. "Safety Zone"
The Commission next argues that the shooting range does not violate the "safety zone" provisions of section 2505 of the Game and Wildlife Code, 34 Pa.C.S. § 2505.
Section 2505(a) of the Game and Wildlife Code, 34 Pa.C.S. § 2505(a), states, in pertinent part, as follows:
*394 [I]t is unlawful for any person, other than the lawful occupant, while ... pursuing any privilege granted by this title... to discharge, for any reason, any firearm, arrow or other deadly weapon within or through a safety zone ... without the specific advance permission of the lawful occupant thereof.
Section 2505(c)(1) of the Game and Wildlife Code, 34 Pa.C.S. § 2505(c)(1) (emphasis added), defines the term "safety zone" as:
[T]he area within 150 yards around and that area which is below the highest point of any occupied dwelling house, residence, or other building or camp occupied by human beings, or any barn, stable, or other building used in connection therewith or any attached or detached playground of any school, nursery school or day-care center.
The Petition in this case avers that Dr. Pacurariu's "home is within 150 yards of where the Game Commission's survey crews have staked out the shooting range." (Petition, para. 44.) As stated, we must accept as true all well-pleaded facts in the Petition. Thus, the Petition states a cause of action based on the provisions of section 2505 of the Game and Wildlife Code.[4]
III. Commission's Regulations
The Commission's third argument is that the Commission has not violated its own regulations by failing to perform a feasibility study involving the public.
As a preliminary matter, we note that the Petition does not allege that the Commission violated its own regulations. Rather, the Petition alleges that the Commission "did not follow [its] own in-house feasibility rules." (Petition, para. 52.) Indeed, the Petition asserts that the Commission's established practices and procedures require the performance of studies to assess the need for a shooting range in a given location, the appropriateness of the proposed location and public input.[5] (Petition, para. 19.) Thus, in effect, Petitioners contend that, through established practices and procedures, the Commission has a policy of requiring public input,[6] and the Commission failed to comply with that policy in this case.[7]
Although an agency's policy lacks the force of law, "[r]eviewing courts have the discretion whether to accept or reject an agency's general statement of policy *395 depending on how accurately [it] reflects the meaning of a statute." Eighty-Four Mining Co. v. Three Rivers Rehabilitation, Inc., 554 Pa. 443, 453, 721 A.2d 1061, 1066 (1998). The relevant statutory provision in this case is section 328(a) of the Game and Wildlife Code, 34 Pa.C.S. § 328(a) (emphasis added), which states: "The [C]ommission shall implement policies and programs to improve its relationship with the general public and with its licensees in accordance with its strategic plan."[8]
At this stage of the proceedings, we must accept the well-pleaded fact that the Commission has a policy of considering public input when deciding whether to approve construction of a shooting range on state game lands. Such a policy is consistent with section 328. Thus, we have discretion to accept the Commission's policy as binding on the Commission. Given that fact, we cannot say that Petitioners have failed to state a cause of action regarding the need for public input in this case.[9]
Moreover, Petitioners argue in their brief that their Petition states a cause of action against the Commission for violation of the regulations at 4 Pa.Code §§ 1.41(d) and 1.53(c). The regulation at 4 Pa.Code § 1.41(d) states:
Public notice in the manner provided by § 1.53 (relating to notice) shall be given at least 3 days in advance of an agency's first regular meeting of each calendar or fiscal year and at least 24 hours in advance of a special meeting or rescheduled meeting.
The regulation at 4 Pa.Code § 1.53(c) provides, in pertinent part, that: "The agency shall supply a copy of the notice of an open meeting directly to individuals with a direct and substantial interest in the proceedings of the agency...." Here, Petitioners aver that the Commission failed to inform the Board or neighboring property owners of the special meeting on February 25, 1999. (Petition, para. 18.) Therefore, Petitioners have stated a cause of action against the Commission under 4 Pa.Code §§ 1.41(d) and 1.53(c).[10]
IV. Arbitrary Action
Finally, Petitioners contend that their Petition should not be dismissed because it states a cause of action against the Commission for taking arbitrary action in approving *396 the construction of the shooting range.
Courts will reverse an agency's discretionary action only if it was made in bad faith or if it constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions. Rohrbaugh v. Pennsylvania Public Utility Commission, 556 Pa. 199, 727 A.2d 1080 (1999). Here, the Petition alleges that: (1) the Commission approved construction of the shooting range without performing any study and without consulting the public, in violation of established practices and procedures; (2) Commissioner Venesky misled the Commission about public support for the shooting range and its cost to taxpayers; (3) the Commission approved the shooting range because of its convenience for members of the Georgetown Conservation Club; (4) the shooting range is within 150 yards of someone's residence, a violation of state law; and (5) the shooting range is close to hiking trails used by the public. Based on these allegations, we believe that the Petition states a cause of action against the Commission for an abuse of discretion in approving the construction of the shooting range.[11]
Based on the foregoing, we sustain the Commission's demurrer to the extent that the Petition avers that the Commission must obtain permits from the township to construct the shooting range. Otherwise, we overrule the preliminary objection.
ORDER
AND NOW, this 14th day of January, 2000, the preliminary objection filed by the Commonwealth of Pennsylvania, Pennsylvania Game Commission (Commission) is sustained only to the extent that the Petition for Review filed by Radu Pacurariu, M.D., James Jarick, Sr., James E. Jarick, David Mock, Mary Dee Mock, and Dennison Township By and Through Its Board of Supervisors avers that the Commission must obtain local permits to construct the shooting range. Otherwise, the Commission's preliminary objection is overruled. Respondents shall file an answer to the Petition for Review within thirty days of the date of this order.
NOTES
[1] We note that, in ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa.Cmwlth.1995). In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id.
[2] The Commission states: (1) SGL 119 is not subject to regulation by counties or municipalities; (2) the shooting range is not within a designated safety zone or otherwise prohibited; (3) it is premature to determine whether the shooting range violates noise ordinances; and (4) the establishment of the shooting range is rationally related to the promotion of sport hunting in Pennsylvania.
[3] Indeed, a noise control ordinance might prohibit the use of firearms during certain days of the year or during certain hours of the day. The Commission's regulation at 58 Pa. Code § 135.181 sets the hours for the operation of a shooting range located on state game lands. It is an easy matter to determine whether those hours of operation comply with the hours set forth in a local ordinance.
[4] The Commission asserts in its brief that, during the preliminary injunction hearing, Petitioners stipulated that, although Dr. Pacurariu's property is within 150 yards of the proposed shooting range, his residence is 500 yards away. However, the record before this court does not contain a transcript of the preliminary injunction hearing.
Moreover, assuming that the Commission is correct, Dr. Pacurariu could easily create a "safety zone" by building a shed on his property that is within 150 yards of the shooting range. If the doctor does so, then the shooting range would be within 150 yards of an "other building used in connection" with a residence, and the shooting range could not be used without violating section 2505.
[5] At the preliminary injunction hearing, Petitioners presented the Affidavit of Edward Vogue, a former Commissioner. (Affidavit, Exh. P-2.) Vogue states in the Affidavit that, during his tenure on the Commission from 1987 to 1995, the Commission followed certain procedures before voting on the construction of a new shooting range on state game lands. The procedures included an assessment of the need for the shooting range, the cost of the range and public input. (Affidavit, para. 3.)
[6] Section 102(13) of the Act of July 31, 1968, P.L. 769, as amended, 45 P.S. § 1102(13), defines a "statement of policy" as "any document... promulgated by an agency which sets forth substantive or procedural ... rights... of the public...." Section 102(9) of the Act, 45 P.S. § 1102(9), defines a "document" as "any ... rule ... prescribed ... by ... this Commonwealth." The word "prescribe" means "to lay down authoritatively as a guide, direction, or rule of action." Webster's Third New International Dictionary 1792 (1986).
[7] The Petition avers that, at the February 25, 1999 meeting, Commissioner Fredericks asked why the established procedures were not followed and that the response was that public input was 100% positive. (Petition, para. 20.)
[8] Section 328 became effective on December 21, 1998. It seems that the Commission has not yet implemented any formal policies or programs to improve its relationship with the general public in accordance with its strategic plan. However, under section 328(e), the Commission must make a written report to the Senate and House of Representatives by January 31, 2000 regarding its policies and programs to improve its relationship with the general public.
[9] In her single-judge opinion following the preliminary injunction hearing, Judge Leadbetter addressed whether Petitioners have a clear right to relief on this issue. Her opinion states: "Wise as it may be to invite public comment and take local views into consideration before embarking on a project such as this, there is simply no legal mandate that the Commission do so. Nor was any evidence presented that the Commission has violated any of its own policies in the manner in which it made the decision to establish a shooting range on [SGL 119]." Pacurariu v. Pennsylvania Game Commission, (No. 482 M.D.1999, filed September 4, 1999), slip op. at 3. Although Petitioners may not have a clear right to relief on the matter, Petitioners have stated a cause of action. As this case goes forward, Petitioners must present evidence that the Commission has a policy requiring public input in approving the construction of the shooting range and that the Commission violated that policy here.
[10] In her single-judge opinion, Judge Leadbetter stated in dictum that Petitioners expressed their views to the Commission "before any action was undertaken ... so any defect in notice was harmless." Pacurariu, slip op. at 4. It may be true that Petitioners succeeded in expressing their views to the Commission before Respondents began construction of the shooting range. However, that is irrelevant to the issue presented here. Our only task at this stage of the proceedings is to determine whether the Petition states a cause of action under 4 Pa.Code §§ 1.41(d) and 1.53(c).
[11] Judge Leadbetter states in her single-judge opinion that Petitioners "failed to state a cause of action arising from the Commission's allegedly arbitrary decision." Pacurariu, slip op. at 4. Judge Leadbetter explains that Petitioners failed to allege that the Commission's arbitrary conduct deprived them of a property interest. Id. at 5. However, Petitioners have alleged that they are property owners near the proposed shooting range and that the range poses a danger to Petitioners in the use and enjoyment of their property. Thus, Petitioners have alleged facts to establish a property interest and a deprivation of that interest. Petitioners need not specifically allege that the Commission's arbitrary conduct deprived them of a property interest; such an averment would constitute a conclusion of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264714/ | 879 F.Supp. 1078 (1995)
Shane DUFFEE, minor, By and Through guardian and next friend, Rose THORNTON, Plaintiff,
v.
MURRAY OHIO MANUFACTURING CO.; Walmart Stores, Inc.; and Shimano American Inc., Defendants.
No. 94-4022-SAC.
United States District Court, D. Kansas.
February 8, 1995.
*1079 Mark W. Works, Works, Works & Works, P.A., Topeka, KS, for Rose Thornton.
Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Murray Ohio Mfg. Co.
David E. Larson, Melody L. Nashan, Watson & Marshall L.C., Kansas City, MO, for Shimano American Inc.
MEMORANDUM AND ORDER
CROW, District Judge.
This product liability case comes before the court on two motions. The defendants Murray Ohio Manufacturing Co. ("Murray") and Walmart Stores, Inc. ("Walmart") move for partial summary judgment on the plaintiff's failure to warn claim (Dk. 83) and for summary judgment (Dk. 136) on the plaintiff's remaining claims.
On February 21, 1992, at approximately 6:50 p.m., almost forty-five minutes after sunset, the plaintiff, Shane Duffee, an eleven-year old boy, and his friend, James Prout, were riding from James's home to Shane's home on their bicycles. Ahead of James, Shane was riding downhill on 26th Street towards the intersection with Clay Street. He did not stop for the stop sign at the intersection. James observed Shane's rear tire lock-up about even with the stop sign. As Shane's skidding bicycle continued through the intersection, he was struck on the left side by the right front bumper of a moving car on Clay Street. Shane was *1080 thrown from the bicycle in the direction carried by his forward momentum. Shane allegedly suffered serious injuries including a head injury and brain damage as a result of this accident.
In the middle of December of 1991, Shane's father, Chris Duffee, had given Shane a Murray BMX 20" bicycle which he had purchased at a Walmart store in Sedalia, Missouri. The brake on the bicycle was manufactured by the defendant Shimano American Inc. ("Shimano"). Shane had used the bicycle for approximately two months before his accident.
Shane alleges the defendants Murray and WalMart failed to provide him with an instruction booklet and "failed to warn of the dangerous propensities of such bicycles." (Dk. 129 at p. 5). Shane further alleges the defendants defectively designed the particular Murray bicycle by using the rear coaster or foot brake system instead of the two-wheel caliper or hand brake system. The plaintiff couches these same basic allegations within the following legal theories: strict liability, negligence, implied warranty of merchantability, and express warranty.
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case." Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The court views the evidence and draws any possible inferences in the light most favorable to the non-moving party. MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1117 (10th Cir.1991). A summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).
For purposes of these motions, the court considers the above summary of the case and the following statement to be the relevant uncontroverted facts.
For the two months before the accident, Shane rode his bicycle around the neighborhood, to visit friends and to school. After visiting his friend, James Prout, Shane often coasted down 26th Street on his way home. Shane typically slowed his bicycle down before reaching the intersection with Clay Street, "bunny hopped" the curb, turned right, and rode on the sidewalk along Clay Street. On one or two occasions, Shane went through the 26th Street and Clay Street intersection without stopping at the stop sign. Shane said he had used the brakes often and, with the exception of the accident, had stopped the bicycle when needed. James Prout confirmed Shane's use of the Murray BMX's coaster brakes.
The plaintiff's designated expert, Ronald Wells, a qualified mechanical and metallurgical engineer, testified to certain basic characteristics of operating a bicycle. Riding and stopping a bicycle is a learning process, and experience is the primary teacher. Beginning with balance, the rider with time and experience learns and acquires a "feel" for turning radii and stopping distances under a variety of conditions and circumstances. That "feel" or experience serves the rider in deciding what must be done to operate a bicycle safely. In any given situation, the stopping distance of any bicycle depends on a number of variables, including: the type of brakes (coaster or caliper), the slope on which braking occurs, the operator's weight, *1081 the co-efficient of friction of the road surface, the condition of the tires, weather conditions, velocity at the time of braking, and condition of the brakes. Experience is a very important factor in the safe use of any bicycle.
Coaster brakes or foot brakes have been used on bicycles for decades and are commonly accepted in the industry. Under dry weather conditions and with all equipment properly adjusted, a bicycle with caliper brakes has a shorter stopping distance than a bicycle with only a rear coaster brake. There are, however, risks of use unique to the caliper braking system. Among the recognized risks are front wheel lock-up, loss of control during braking, dampness affecting brakes, increased need for repairs and adjustment, and insufficient grip strength to activate brakes.
The Consumer Product Safety Commission ("CPSC"), by regulation, requires foot brakes or coaster brakes to stop a bicycle within fifteen feet when operated at a test speed of at least ten miles per hour by an individual weighing at least one hundred and fifty pounds. 16 C.F.R. §§ 1512.5(c)(1) and 1512.18(e)(3).[1] Shane's bicycle met the CPSC's force test standards and an exemplar model of Shane's bicycle complied with all of the CPSC's mandatory brake standards.
The plaintiff's expert, Ron Wells, opined that Shane's bicycle was unreasonably dangerous simply because it lacked a caliper braking system. Wells reasoned that the caliper system offered a stopping distance nearly one-fourth as long as the coaster system and that it did not materially interfere with function nor materially increase cost. Wells admitted that a designer and manufacturer of a 20" bicycle would consider a variety of information and studies in choosing an appropriate braking system. Wells further conceded that he would expect the designer to have more knowledge and information than that gained from the personal experience of riding bicycles and that learned from talking with a single bicycle dealer. Wells did not use a methodology comparable to that used by a bicycle designer in arriving at his conclusion that the particular bicycle was defectively designed in having only a rear coaster brake system. The defendants' experts employed a methodology which included more of the relevant factors considered by a bicycle designer in choosing a brake system.
Failure to Warn Claim
As alleged and argued by the plaintiff, this claim is seriously lacking in necessary detail. The plaintiff first does not specifically identify the risk or danger of which the defendant failed to warn. He further omits telling the court the subject matter or type of reasonable warning that should have been given. The plaintiff points to different information and warnings supplied in Murray's instruction booklet and argues the same should have been given to his client. Finally, the plaintiff assumes, instead of proving, a causal connection between no warning and his accident. His expert's testimony on this claim does not supply the missing details. Other than his suggestion that parents be told before a bicycle purchase that coaster brakes have a longer stopping distance than caliper brakes, Wells does not specify the nature and content of a reasonable warning. Moreover, the plaintiff does not cite any opinion by Wells regarding causation for this claim. All of these proof shortcomings make summary judgment inevitable on the plaintiff's failure to warn claim.
In Kansas, a failure to warn claim, whether couched in negligence or strict liability, employs the same measure of reasonableness under the circumstances. Wheeler v. John Deere Co., 935 F.2d 1090, 1099 (10th Cir.1991); Richter v. Limax Intern., Inc., 822 F.Supp. 1519, 1521 (D.Kan.1993), rev'd on other grounds, 45 F.3d 1464 (10th Cir. 1995); Miller v. Lee Apparel Co., 19 Kan. App.2d 1015, 1029, 881 P.2d 576 (1994), rev. denied, ___ Kan. ___ (Nov. 8, 1994); see Mays v. Ciba-Geigy Corp., 233 Kan. 38, 57, *1082 661 P.2d 348 (1983) (quoting Russell v. G.A.F. Corp., 422 A.2d 989, 991 (D.C.App. 1980)). As for the manufacturer's duty to warn, Kansas courts follow the rule stated in Restatement (Second) of Torts § 388 (1963):
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Long v. Deere & Co., 238 Kan. 766, 772-73, 715 P.2d 1023 (1986) (emphasis added); see Richter v. Limax International, Inc., 45 F.3d 1464, 1468 (10th Cir.1995).
The Kansas Product Liability Act ("KPLA"), K.S.A. 60-3301 et seq., limits a manufacturer's duty to warn. Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 748, 861 P.2d 1299 (1993). A manufacturer has no duty to warn if (1) the warnings would relate "to precautionary conduct that a reasonable user or consumer would take for protection," (2) the situation is one where a reasonable user or consumer would have taken the precaution, and (3) the warnings would relate to open and obvious hazards that a reasonable user or consumer would appreciate. Id. at 757, 861 P.2d 1299. The KPLA at K.S.A. 60-3305 specifically provides:
In any product liability claim any duty on the part of the manufacturer or seller of the product to warn or protect against a danger or hazard which could or did arise in the use or misuse of such product, and any duty to have properly instructed in the use of such product shall not extend: (a) To warnings, protecting against or instructing with regard to those safeguards, precautions and actions which a reasonable user or consumer of the product, with the training, experience, education and any special knowledge the user or consumer did, should or was required to possess, could and should have taken for such user or consumer or others, under all the facts and circumstances;
(b) to situations where the safeguards, precautions and actions would or should have been taken by a reasonable user or consumer of the product similarly situated exercising reasonable care, caution and procedure; or
(c) to warnings, protecting against or instructing with regard to dangers, hazards or risks which are patent, open or obvious and which should have been realized by a reasonable user or consumer of the product.
In short, Kansas law does not impose a duty to warn of dangers actually known to the product user, Long, 238 Kan. at 773, 715 P.2d 1023, or of obvious common dangers or generally known risks connected with the use of the product. Mays, 233 Kan. at 58, 661 P.2d 348. "`If a danger is obvious, then its obviousness constitutes a warning, and the product seller's failure to provide a separate warning should not constitute a defect.'" Miller, 19 Kan.App.2d at 1030, 881 P.2d 576 (quoting Westerbeke, Some Observations on the Kansas Product Liability Act (Part 2), 54 J.K.B.A. 39, 44 (1985)).
In support of his failure to warn claim, the plaintiff argues, in part, that had he received the Murray instruction booklet he would have learned the proper way to operate the bicycle. According to the plaintiff, "[n]o product is safe without written instructions or express instructions on how to use such product." (Dk. 113 at 10). He further alleges that he did not receive warnings about the dangers of the bicycle including "the inadequacies of the coaster brakes." (Dk. 113 at 5).
Shane Duffee testified that he received instruction at school on operating bicycles. He knew to stop at stop signs and to wear a helmet. He knew not to ride his bicycle *1083 without lights when it was dark. He knew how to stop his bicycle and how to use his coaster brake to slow the bicycle when going downhill. He knew to stop for approaching cars. Prior to the Murray BMX 20" bicycle, Shane had owned and used two other bicycles also equipped with only rear coaster brakes. Shane had approximately two months of experience in riding the Murray BMX 20" bicycle. He had frequently travelled down the 26th Street hill on his way home from James Prout's house. He had learned how to slow his bicycle while going down the hill so as to "bunny hop" the curb. On two occasions, Shane went through the stop sign at the 26th Street and Clay Street intersection simply because he was going too fast and did not want to stop.
The plaintiff fails to identify anything found in Murray's instruction booklet[2] which he did not otherwise know and which would have prevented this accident had he known it. Shane had experienced and learned how to engage his coaster brake so as to slow down the bicycle while going down the 26th Street hill. He also had experienced the acceleration produced going downhill and apparently had learned when he was going too fast to stop at the bottom. Because of Shane's actual knowledge, the defendants have no duty to warn or instruct him about exercising caution and braking while going downhill. See Long, 238 Kan. at 773, 715 P.2d 1023. "A product manufacturer or seller is not an insurer of the safety of persons who use the product." Miller, 19 Kan. App.2d at 1031, 881 P.2d 576 (citation omitted).
"Regardless of the theory upon which recovery is sought for injury in a products liability case, proof that a defect in the product caused the injury is a prerequisite to recovery." Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 235, 552 P.2d 938 (1976); see, e.g., Cantrell v. R.D. Werner Co., 226 Kan. 681, 684, 602 P.2d 1326 (1979) (rule applies to express warranty claims); Lane v. Redman Mobile Homes, Inc., 5 Kan. App.2d 729, Syl. ¶ 2, 624 P.2d 984, rev. denied, 229 Kan. 670 (1981) (rule applies to negligence, breach of implied warranties and strict liability claims). The cause of an injury is that "which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act." Wilcheck, 220 Kan. at 235, 552 P.2d 938. Proof of injury during use of the product, without more, is insufficient to establish that a defect in the product caused the injury. Id. at 235-36, 552 P.2d 938.
The plaintiff simply offers no proof that the defendants' lack of warnings has a causal connection with the accident. The plaintiff knew to keep a lookout, to stop his bicycle at stop signs, and to operate his brakes when going downhill so as to slow and stop. Any such warning would have reminded the plaintiff of only what he already knew were important basics in bicycle riding. The plaintiff does not demonstrate the significance of a warning or information that caliper brakes generally have a shorter stopping distance. The plaintiff does not allege how such a warning would have affected Shane's actions on the night of February 21, 1993. There is no evidence that Shane had operated a bicycle with caliper brakes and could be confused about the relative stopping distances of the two braking systems. Nor is there evidence of record to demonstrate that this information would have influenced Shane's father in his purchase decision. Cf. Baughn v. Honda Motor Co., Ltd., 107 Wash.2d 127, 727 P.2d 655, 665 (1986). The plaintiff leaves it to speculation whether Chris Duffee would have purchased a bicycle with a caliper brake system had he known about the shorter stopping distances as well as the risks with caliper brakes including front wheel lock-ups, more frequent repair and adjustment, and *1084 affected operation under wet conditions. There is nothing to suggest that a reasonable consumer knowing this same information would choose caliper brakes over coaster brakes. It is pure speculation to say that a reasonable consumer, like Chris Duffee, would not have purchased a bicycle with coaster brakes if told of all relevant risks. See Baughn, 727 P.2d at 665. Speculation and allegations are not enough to defeat a summary judgment motion.
Finally, the plaintiff overlooks proving the feasibility, adequacy and effectiveness of any proposed new warning. Judge Belot recently opined:
In this court's view, a person cannot, after suffering an accident, simply draw up a warning limited to the dangers involved in that accident and argue that that warning should have been conveyed by the manufacturer or seller without first also establishing that that warning is adequate and that it actually could have been communicated in the manner proposed....
Similarly, in a warning case, a plaintiff must do more than simply present an expert who espouses a new or different warning. He must establish that warning's feasibility, adequacy, and effectiveness. In this case, plaintiffs' experts' testimony fell woefully short of meeting this criteria.
Meyerhoff v. Michelin Tire Corp., 852 F.Supp. 933, 947 (D.Kan.1994). Like in Meyerhoff, the plaintiff's expert's testimony here falls far short of proving any proposed warning as feasible, adequate, and effective. Unlike Meyerhoff, the plaintiff's expert here does not even propose a particular warning that should have been given.
The plaintiff's expert's testimony about the nature and content of any such warning was largely his own subjective belief and speculation unsupported by scientific validity. A bicycle rider typically learns from experience how best to maneuver and brake the bicycle under different conditions. This is a proposition that even the plaintiff's expert concedes. Consequently, the adequacy and effectiveness of any proposed warning on stopping distances are significant issues. The feasibility of any such warning is also a matter of some contention if and when consideration is given to all the different factors affecting stopping distance. In short, the plaintiff did not meet the burden facing him, and the defendant is entitled to summary judgment on the plaintiff's failure to warn claim.
Defective Design
The plaintiff alleges the defendants defectively designed the bicycle by equipping it with a coaster brake system rather than a caliper braking system. For this claim, the plaintiff relies exclusively on the opinion of his expert witness, Ron Wells. Coaster brakes are commonly accepted in the industry and are frequently found on juvenile bicycles. Even so, Wells essentially opined that it is not reasonable for a manufacturer to weigh the relative risks and characteristics of particular groups of bicycle riders and choose coaster brakes over caliper brakes. As will be seen, Wells' conclusory opinion lacks a reliable factual basis, an acceptable methodology, and the necessary validation.
"In Kansas, a manufacturer has a duty to use reasonable care in designing its products so that they will be reasonably safe for their intended use." Deines v. Vermeer Mfg. Co., 752 F.Supp. 989, 995 (D.Kan.1990) (citing Garst v. General Motors Corp., 207 Kan. 2, 19, 484 P.2d 47 (1971)). Under a strict liability theory, the plaintiff must prove the product "defective in a way that subjects persons or tangible property to an unreasonable risk of harm." Savina v. Sterling Drug, Inc., 247 Kan. 105, 114, 795 P.2d 915 (1990). The KPLA consolidates or merges all theories of legal liability in a products liability action "into one legal theory called a `product liability claim." Patton, 253 Kan. at 756, 861 P.2d 1299 (citing K.S.A. 60-3302(c)).
The KPLA creates a "presumption of non-defectiveness" upon proof that the product complies with regulatory standards. Miller, 19 Kan.App.2d at 1026, 881 P.2d 576. Specifically, K.S.A. 60-3304(a) provides:
When the injury-causing aspect of the product was, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product shall be deemed not *1085 defective by reason of design or performance, ..., unless the claimant proves by a preponderance of the evidence that a reasonably prudent product seller could and would have taken additional precautions.
The "injury-causing aspect" alleged here is the coaster brake.
It is uncontroverted that the brakes on Shane's bicycle met the CPSC's force test standards. Because Shane's bicycle was damaged in the accident, the experts were not able to test its compliance with CPSC's stopping distance performance standards. Experts on both sides agreed, however, that they observed nothing with Shane's coaster brakes which could have caused a malfunction. An exemplar of the same model of Shane's bicycle did pass the CPSC's stopping distance performance standards. At speeds averaging approximately ten miles per hour, the tested bicycle stopped within eleven feet or, in other words, under the fifteen feet regulatory standard.
The plaintiff erroneously argues that the accident itself proves the brakes were not in compliance with the regulatory standard. The expert witnesses agree that Shane was travelling in excess of twenty-one miles per hour when he applied the brakes. Therefore, the fact that Shane did not stop within fifteen feet of the stop sign does not demonstrate that his bicycle would not have stopped within fifteen feet had he been travelling at a rate of ten miles per hour. The plaintiff's bald assertion to the contrary is untenable.
From the evidence of record, the only reasonable inference is that Shane's coaster brakes satisfied all relevant CPSC standards. This means the plaintiff "is required to rebut the presumption of nondefectiveness to survive ... [defendants'] summary judgment motion." Miller, 19 Kan.App.2d at 1026, 881 P.2d 576. A plaintiff overcomes this presumption with proof by a preponderance of the evidence that a reasonable product seller or manufacturer would have done more. Martin v. MAPCO Ammonia Pipeline, Inc., 866 F.Supp. 1304, 1308 (D.Kan.1994); Pfeiffer v. Eagle Mfg. Co., 771 F.Supp. 1133, 1138 (D.Kan.1991); see O'Gilvie v. International Playtex, Inc., 821 F.2d 1438, 1443 (10th Cir. 1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2014, 100 L.Ed.2d 601 (1988). "Testimony that a product `could have been made a lot safer' or in alternative ways with different warnings or instructions does not create a jury question under K.S.A. 60-3304(a)." Miller, 19 Kan.App.2d at 1026, 881 P.2d 576 (citation omitted). The plaintiff must come forth with evidence that a reasonably prudent product seller or manufacturer could and would have done more. Id. Specifically here, the plaintiff must prove that a reasonably prudent bicycle manufacturer and designer could and would have chosen caliper brakes over coaster brakes for this particular model and size of bike even though the coaster brakes meet regulatory standards. The plaintiff offers no admissible or valid evidence to prove this proposition and to rebut the presumption of nondefectiveness.
One way of proving that a reasonable manufacturer would do more is for the plaintiff to show that the regulatory standards are outdated. Alvarado v. J.C. Penney Co., Inc., 735 F.Supp. 371, 373 (D.Kan.1990) (quoting comments to § 108 of the Model Uniform Products Liability Act). Another way is to show that a reasonable manufacturer knows of dangers with the product's use that are not contemplated by the regulatory standard. Id. The plaintiff does not rely on either method of proof. In fact, the plaintiff's proof is really little more than his expert witness's subjective belief about what a manufacturer should do. The plaintiff's expert does not purport to base his opinion on any facts or knowledge about industry practice, standards or methodology for bicycle design. "[A] expert's opinion is not to be accepted merely because it is articulated, but must instead have a sufficient factual basis." Anderson v. National R.R. Passenger Corp., 866 F.Supp. 937, 945 (E.D.Va.1994) (footnote omitted).
In a defective design case, it is not enough for the plaintiff simply to prove that a different design would have mitigated or avoided the plaintiff's injuries. Garst, 207 Kan. at 20, 484 P.2d 47. Because it is plausible to assume that after most accidents one could devise some design change in the product *1086 to prevent the particular accident, consideration must be given to whether the product changes would increase the risk of other accidents or would interfere with the product's performance. Id.; see Meyerhoff, 852 F.Supp. at 947. Logically then, "a manufacturer is not obligated to adopt only those features which represent the ultimate in safety or design." Garst v. General Motors Corporation, 207 Kan. at 20, 484 P.2d 47.
As sources for his opinion, the plaintiff's expert, Ron Wells, relied on his own experience on bicycles, a conversation with a single bicycle retail dealer in Hutchinson, Kansas, and his own rudimentary testing of bicycle stopping distances conducted on the 26th Street hill. Wells admitted that a bicycle manufacturer in choosing a brake system should have more information than that gained from personal experience and a single conversation with a retail bicycle dealer. Wells conceded he had not investigated nor considered in any real detail the studies, tests or information that is or may be available on a number of matters, including: what information is generally accessible to and considered by a bicycle manufacturer in choosing one brake system over another; the age group of children expected to ride a 20" BMX bicycle; the size, strength and maturity of children in that age group; industry's experience with coaster brake systems on 20" bicycles; the grip strength of children expected to ride a 20" bicycle; the contrasting maintenance, replacement and adjustment needs of coaster brakes and caliper brakes; the ability of children expected to ride 20" bicycles to recognize the need for maintenance, replacement or adjustment of caliper brakes; the likelihood of front wheel lock-ups with caliper brakes under normal and emergency conditions when operated by children within the age group expected to ride 20" bicycles; the possible risks and injuries to children from front wheel lock-ups; and the increased stopping distance of caliper brakes under wet conditions. Wells further acknowledged that most of these factors were relevant in deciding which brake system to use on a 20" bicycle.
Wells practically conceded that he had reached his opinion without tracking the methodology or analysis that would be employed by a reasonable bicycle manufacturer or designer. To the extent that he considered any of the above factors, Wells limited his investigation to what he had learned from personal experience and talking with a single bicycle dealer. This approach is devoid of any meaningful and reliable factual basis for determining and weighing the relative factors involved in a manufacturer's product tradeoff decision.
In a nutshell, Wells considers stopping distance to be the paramount factor in choosing a bicycle's braking system. Wells, however, fails to offer any valid reason for why a manufacturer should and would give the same overriding weight to this single factor. Evidence of a safer alternative design is not proof that a reasonably prudent manufacturer of a 20" bicycle could and would have used them here. See Miller v. Lee Apparel Co., 19 Kan.App.2d at 1027, 881 P.2d 576.
The court agrees with the defendants that Wells' opinion on what a reasonable manufacturer would do in these circumstances is not admissible. The Supreme Court recently said that the trial court has the duty to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. ___, ___, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469, 480 (1993). "A district judge should assure himself, before admitting expert testimony, that the expert knows whereof he speaks." Bammerlin v. Navistar Intern. Transp. Corp., 30 F.3d 898, 901 (7th Cir.1994) (citing Daubert). "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" an expert "may testify thereto." Fed. R.Evid. 702. The Supreme Court in Daubert said that the word "knowledge" in Rule 702 "connotes more than subjective belief or unsupported speculation. The term `applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.'" 509 U.S. at ___, 113 S.Ct. at 2795, 125 L.Ed.2d at 481 (quoting Webster's Third New International Dictionary 1252 (1986)). "Proposed testimony must be supported by appropriate validation *1087 i.e., `good grounds,' based on what is known." Daubert, 509 U.S. at ___, 113 S.Ct. at 2795, 125 L.Ed.2d at 481.
Wells' opinion on what a reasonable manufacturer could and would have done is not supported by appropriate validation. He arrived at his conclusion with an incomplete and inadequate factual basis. Wells himself testified that a product designer should consider more information than he did in choosing the appropriate brake system. He employed none of the recognized methods or "grounds" for evaluating a reasonable manufacturer's product tradeoff decisions. Because caliper brakes offered shorter stopping distances, Wells simply assumes a reasonable manufacturer would use them instead of coaster brakes on a 20" bicycle. Such unsupported speculation lacks the validity demanded by Daubert. See Meyerhoff, 852 F.Supp. at 947. Without admissible evidence to rebut the presumption of K.S.A. 60-3304(a), the plaintiff is unable to defeat summary judgment. See Miller, 19 Kan.App.2d at 1026, 881 P.2d 576.
IT IS THEREFORE ORDERED that the defendants Murray's and Walmart's motion for partial summary judgment (Dk. 83) on the plaintiff's failure to warn claim is granted;
IT IS FURTHER ORDERED that the defendants Murray's and Walmart's motion for summary judgment (Dk. 136) on the plaintiff's remaining claims is granted.
NOTES
[1] The plaintiff erroneously reads the CPSC standards as requiring a braking distance of fifteen feet regardless of speed. It is uncontroverted that the bicycle at issue does not have a linear velocity of fifteen miles per hour or more when pedaled at the crank rate of 60 revolutions per minute. Consequently, the applicable CPSC standards require a braking distance of fifteen feet when travelling at least ten miles per hour.
[2] The booklet provided the following information on braking:
"Learn how to stop the bicycle. Check the brakes before riding. Be prepared to stop when you near a corner or intersection. When you ride on a wet road be careful because it takes more distance to stop or turn the bicycle. Caliper brakes do not stop as quickly when wet. Small rocks and loose material also increase the stopping distance of the bicycle. Always allow enough distance for the brakes to take effect when stopping." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/847466/ | Order Michigan Supreme Court
Lansing, Michigan
December 27, 2005 Clifford W. Taylor,
Chief Justice
129726 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 129726
COA: 254412
Wayne CC: 01-005525-01
KAJUAN D. HALE,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 29, 2005
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
KELLY, J., would hold this case in abeyance for People v Drohan, lv gtd 472 Mich
881 (2005).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 27, 2005 _________________________________________
p1219 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2229738/ | 883 N.E.2d 1153 (2005)
354 Ill. App.3d 1171
PEOPLE
v.
KOLOSKY.
No. 2-03-0653.
Appellate Court of Illinois, Second District.
February 7, 2005.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264665/ | 744 A.2d 1057 (2000)
2000 ME 19
Anthony MANCINI
v.
Elizabeth SCOTT et al.
Supreme Judicial Court of Maine.
Submitted on Briefs October 28, 1999.
Decided February 7, 2000.
*1058 F. Jay Meyer, Nicholas Bull, Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., Portland, for plaintiff.
Walter F. McKee, Sumner H. Lipman, Lipman & Katz, P.A., Augusta, for defendants.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
CLIFFORD, J.
[¶ 1] This is an appeal from the denial of a motion for a judgment as a matter of law or for a new trial, see M.R. Civ. P. 50, 59, and from an award of attorney fees in a case involving a lease between lessor Anthony Mancini,[1] and lessees Elizabeth Scott, Ann Hasey, and Margaret Saunders. Hasey[2] contends that the Superior Court (Cumberland County, Brennan, J.) erred in not granting the Rule 50 or 59 motion, arguing that there was no evidence that she was obligated as a lessee under the lease at the time of its breach because she had not signed the renewal of the lease. Hasey further contends that the award of attorney fees and costs to Mancini was excessive, and, in any event, improper given that Hasey was improperly held liable under the lease. In addition, Scott and Saunders contend that the attorney fees awarded to them by the court for prosecuting their claim for wrongful eviction are inadequate, and appeal that award. Mancini contends that the appeal should be dismissed as to Hasey, and that Hasey's liability has already been finally determined in another legal action and may not be collaterally challenged. Because of a failure to comply with M.R. Civ. P. 25(a)(1), we dismiss Hasey's appeal, and we affirm the judgment of the Superior Court.
[¶ 2] The original lease between Mancini, as lessor, and Scott and Hasey, as lessees, was entered into in December of 1990. Scott leased the building to open a restaurant *1059 in Gardiner. Hasey, who was Scott's grandmother, signed the lease to insure that the restaurant would have adequate financial backing. She took no part in the operation of the restaurant. The leased premises included not only the restaurant proper but also the equipment, linen, furnishings, and other items necessary to operate a restaurant. The lease provided that Hasey issue a promissory note to Mancini for $10,000. Scott operated the restaurant as "Ashlie's" for several years before taking on Saunders as a partner and moving the operation to Hallowell in 1994. Scott and Saunders then operated a sports bar at the original location. A lease renewal and extension was signed by Scott as lessee in 1993, but was not signed by Hasey. Scott and Saunders also signed a 1994 amendment to the lease as lessees.
[¶ 3] Mancini initiated the present action on February 1, 1995, alleging conversion of property and breach of the lease. Scott, Hasey, and Saunders answered and counterclaimed, naming Mancini personally along with another establishment,[3] for wrongful eviction, trespass and conversion, intentional interference with their business, and intentional and negligent infliction of emotional distress. At some point, Scott and Saunders filed for protection in the Bankruptcy Court, and Mancini's action for conversion of property and breach of the lease against them was stayed. Their counterclaims against Mancini were allowed to proceed, however. Mancini elected to continue to prosecute his claims against Hasey. Following a contentious period of discovery and other pretrial proceedings, a jury trial was held in April of 1998. After the evidence was presented, the parties moved for judgments as a matter of law. The court concluded as a matter of law that Mancini had wrongfully evicted Scott and Saunders, and granted judgment to Scott and Saunders on that claim. The court determined that there was insufficient evidence on the claim of Scott and Saunders for intentional interference with a business relationship, and granted Mancini's motion for judgment as a matter of law on that claim. The motions were denied in all other respects. The jury returned verdicts on the remaining counts. The jury found against Hasey on Mancini's claims for conversion and for breach of the lease. The jury determined that some of the leased personal property had been converted when the operation was moved to Hallowell, and that there was a breach of the lease because required payments had not been made.[4] Hasey was found liable to Mancini in the amounts of $15,000 for conversion of the leased property and $6,138 for breach of the lease. Hasey appealed from the denial of her motion for a judgment as a matter of law or for a new trial.
[¶ 4] Scott and Saunders were protected from Mancini's claims by the bankruptcy stay. The jury awarded them $2,000 for the wrongful eviction and $2,700 for the conversion of some of their property by Mancini. Following the jury verdicts, the parties litigated entitlement to attorney fees. Mancini sought some $57,132 in attorney fees arising from the claim for breach of the terms of the lease, while Scott and Saunders sought a total of $26,-173 in fees for the wrongful eviction. See 14 M.R.S.A. § 6014(2)(B) (Supp.1999). After a hearing, the Superior Court awarded $20,000 in attorney fees to Mancini, and $5,000 in attorney fees to Scott and Saunders, reasoning that although the jury had returned verdicts in favor of both parties, Mancini was "clearly the `winner.'" The court further noted that Mancini had been "more flexible with respect to a reasonable settlement." Hasey appealed the award of *1060 attorney fees to Mancini. Scott and Saunders have appealed the award of attorney fees to them.
[¶ 5] After initiating the present action, but prior to trial, Mancini filed forcible entry and detainer actions against Scott, Saunders, Hasey, and Ashlie's Pub[5] that were consolidated. The District Court (Augusta, Anderson, J.) held that the "defendants [Scott, Saunders, Hasey, and Ashlie's Pub] breached the lease" and granted Mancini's request for possession of the leased premises. An appeal of that decision was filed, but it was not pursued and was later dismissed.
[¶ 6] Thus, presently before this Court are: (1) Hasey's appeal from the denial of her motion for judgment as a matter of law or for a new trial, and from the award of attorney fees to Mancini; and (2) Scott's and Saunders' appeal of the award of attorney fees to them.
I. SUBSTITUTION OF PARTIES
[¶ 7] Hasey died in December of 1998. Mancini filed a suggestion of Hasey's death on the record on February 22, 1999, and later filed a motion to dismiss Hasey's appeal. M.R. Civ. P. 25(a)(1) provides:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
Id. We have noted that Rule 25 is subject to the provisions of Rule 6:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect, but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), (d), and (e), 60(b), and 73(a) except to the extent and under the conditions stated in them.
M.R. Civ. P. 6(b); see Estate of Mouckerezi, 468 A.2d 993, 996 (Me.1983).
[¶ 8] A motion for substitution should have been filed by May 25, 1999.[6] Without such a filing, the time period could be extended only by moving for an extension of time for "excusable neglect" under Rule 6(b)(2). No such motion was filed. Because no motion for substitution was filed in a timely manner, and there has been no assertion of excusable neglect, we dismiss the appeal as to Hasey. See Burleigh v. Weeks, 425 A.2d 623, 623 n. 1 (Me.1981); see also Field, McKusick & Wroth, Maine Civil Practice § 25.1 at 407 (2d ed.1970). As a result, we need not reach the issue of whether Hasey reasonably could have been found liable for breach of the lease *1061 extension that she did not sign, nor do we address whether the District Court's judgment in the consolidated forcible entry and detainer actions bars relitigation of Hasey's liability.
II. ATTORNEY FEES
[¶ 9] Scott and Saunders contend that the trial court abused its discretion in its award of attorney fees to them for the successful prosecution of their wrongful eviction claim. They argue that the award of fees to their attorney was too low, compared to the much higher award of fees to Mancini's attorney. Scott and Saunders assert that the award of fees was "nothing more than an apparent expression of the Superior Court's dissatisfaction with Scott and Saunders' successful claim [of wrongful eviction]," and that "[i]t was a substantial miscarriage of justice." They further contend that an "exceedingly minor" portion of the case was related to Mancini's claims for which the higher award of attorney fees was made.
[¶ 10] When reviewing an award of attorney fees, we review the trial court's decision "for abuse of discretion and accord the trial court substantial deference." Town of Freeport v. Ocean Farms of Me., Inc., 633 A.2d 396, 399 (Me.1993). Generally, attorney fees may only be awarded where there is a contractual relationship allowing for the award of such fees or where there is explicit statutory authorization. See Poussard v. Commercial Credit Plan, Inc. of Lewiston, 479 A.2d 881, 883 (Me.1984). Here, the lease explicitly allows Mancini to obtain attorney fees, and Scott and Saunders can be awarded attorney fees for wrongful eviction pursuant to 14 M.R.S.A. § 6014(2)(B). When assessing a request for attorney fees, the trial court is to consider several factors. As we specified in Poussard, these factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill required to perform the legal services; (4) the preclusion of other employment by the attorneys due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Poussard, 479 A.2d at 884.
[¶ 11] The Superior Court explicitly noted that it had "been guided by the discussion in Poussard," and, in addition, noted that: (1) the parties were equally responsible for the fact that it was impossible to sort out the time spent on the various claims and counterclaims; (2) Mancini "was clearly the prevailing party" at trial; and (3) Mancini "was the more flexible and realistic party" with respect to reasonable settlement. Mancini was successful on both of his claims at trial, while Scott and Saunders were successful only on two of their several claims.
[¶ 12] The court considered the proper factors in awarding attorney fees to Scott and Saunders, and Scott and Saunders have failed to show that the court acted beyond its discretion in the award. Accordingly, we do not disturb the court's award of attorney fees.
The entry is:
Appeal of Ann Hasey dismissed; judgment affirmed.
NOTES
[1] Mancini executed the lease as trustee for Alpine Properties.
[2] Hasey died in December of 1998. Mancini filed a suggestion of death on the record and later moved for dismissal of the appeal as to Hasey, see M.R. Civ. P. 25(a)(1), and the Court (Wathen, C.J.) ordered that the motion be considered in conjunction with the merits of the appeal. Mancini moved to substitute Joseph M.A. O'Donnell, the personal representative for the estate of Elizabeth A. Hasey. The motion was not filed until October 27, 1999, the day before this case was considered on briefs. We deny the motion for the reasons stated in this opinion.
[3] Claims against the other establishment and its proprietor were dismissed by stipulation of the parties.
[4] Hasey contended she was not liable because she did not sign the lease extension and therefore was not a party to it. Mancini successfully argued that, in signing the lease extension, Scott was acting as Hasey's agent and had authority to bind her.
[5] The initial forcible entry and detainer action named only Scott and Saunders as defendants. According to Mancini, a second action was filed naming Ashlie's Pub, Inc. and Hasey after Scott claimed the equipment and other property was in the possession of the corporate entity.
[6] May 23, 1999 was a Sunday, and May 24, 1999 was Memorial Day; neither are included in the computation of time. See M.R. Civ. P. 6(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264681/ | 236 P.3d 798 (2010)
236 Or. App. 445
Morgan FALKENSTEIN, Petitioner-Respondent,
v.
Kory FALKENSTEIN, Respondent-Appellant.
180828029; A141251.
Court of Appeals of Oregon.
Argued and Submitted May 27, 2010.
Decided July 28, 2010.
*799 Jesse Wm. Barton argued the cause for appellant. With him on the brief were Hubert Duvall, Jr., and Duvall Law Office P.C.
No appearance for respondent.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.
DUNCAN, J.
Petitioner filed a petition in the trial court for a stalking protective order (SPO) against respondent, her ex-husband. The court entered a temporary SPO and set a hearing to determine whether to continue the temporary SPO. After the hearing, the court entered a final SPO of unlimited duration. On appeal, respondent argues that the final SPO was not supported by sufficient evidence. On de novo review, ORS 19.415(3) (2007),[1] we agree and reverse.
*800 Civil SPOs are governed by ORS 30.866. To obtain an SPO, a person files a petition in a circuit court. ORS 30.866(1). If probable cause for the SPO exists, the court enters a temporary SPO, sets a hearing to determine whether the temporary SPO should be continued, and issues an order for the respondent to appear at the hearing. ORS 30.866(2). In order for a temporary SPO to be continued, the petitioner must prove, by a preponderance of the evidence, that the requirements for the SPO have been satisfied. ORS 30.866(7).
As noted, respondent argues that there was insufficient evidence to support the final SPO. In order to evaluate the sufficiency of the evidence in this case, we must first determine what information was actually admitted into evidence. Specifically, we must determine whether the factual allegations in petitioner's SPO petition were in evidence. Respondent argues that they were not. But the trial court proceeded as if they were.
To determine what information was actually admitted into evidence and, from there, to determine whether that evidence was sufficient, it is necessary to recount what happened at the SPO hearing in some detail. At the hearing, both petitioner and respondent appeared without counsel. Perhaps in part because of that, the court assumed an active role in creating the evidentiary record. The hearing did not proceed like a traditional adversarial hearing, with each party presenting his or her own evidence, subject to objection and examination by the other party. Instead, the court determined the order of the presentation of witnesses and questioned them. And, as its questions demonstrate, the court presumed that the factual allegations in the petition for the SPO were in evidence.
The court began the hearing by telling petitioner that it had read the petition and asking her if she had "anything [she] want[ed] to add to this recitation of facts." Petitioner testified that, on one occasion after the temporary SPO was entered, she went to her mother's house, which was a few houses away from where respondent lived at the time, and respondent sat outside his house while she was there and came over as she was leaving. Petitioner was with her mother and brother. She assumed respondent wanted to talk with her, but she left with her brother, and respondent spoke only to her mother. When petitioner later returned to her mother's house, respondent came over again, but petitioner "[didn't] know if he just didn't see me or what happened."
Petitioner also testified that, after the temporary SPO was entered, respondent sent her a text message and telephoned her. She did not testify as to the content of the text message or the telephone calls.
Regarding petitioner's reactions to respondent's actions, the court said, "You described events in your petition that you said frightened you. Are you still frightened of him?" Petitioner testified that she was.
The court then questioned respondent, who testified that he had "taken all the right measures not to speak to [petitioner]." He testified that he had moved, changed his telephone number, and changed his e-mail address. He denied having any unwanted contact with petitioner. He said he "agree[d] with [petitioner] on the fact that we want nothing to do with each other."
The court asked respondent if he had read the petition. When respondent said that he had, the court asked him to respond to it, noting that "[petitioner] makes some particular allegations of fact in there." Respondent said that the petition contained one true allegation: that he had written down petitioner's boyfriend's license plate number.
Petitioner's boyfriend testified at the hearing. He reported that respondent had made numerous unwanted telephone calls to petitioner, waited outside her house, and come over uninvited. He testified that the text message petitioner received from respondent after the temporary SPO was entered "just said `T'" and it "[s]eemed like somebody was going to text something and then decided against it or whatever but it still went through." He also testified that petitioner was frightened of respondent.
*801 As is apparent from its questioning of petitioner and respondent, the court presumed that the factual allegations in the petition were in evidence. The court asked petitioner if she had anything to add to the allegations and asked respondent to address them. But, the factual allegations in the petition were not in evidence. As we held in Jones v. Lindsey, 193 Or.App. 674, 677, 91 P.3d 781 (2004), an SPO hearing is a "civil action" and the Oregon Rules of Civil Procedure apply. Under those rules, pleadings including petitions in SPO casesare not evidence. Id. ("[U]nless admitted, the factual allegations in pleadings have no evidentiary effect."); see also ORCP 59 C(2) (providing that "[p]leadings shall not go to the jury room").
In Jones, the petitioner filed an SPO petition alleging 10 unwanted contacts by the respondent, his ex-wife. At the SPO hearing, the petitioner presented evidence regarding only seven of those contacts. On appeal, the respondent argued that the evidentiary record was limited to the evidence received at the hearing and did not include information regarding the three contacts as to which the petitioner offered no evidence at the hearing. We agreed, concluding that, "unless admitted by the adverse party, the factual allegations in an SPO petition do not constitute evidence in such an action." 193 Or.App. at 678, 91 P.3d 781. Because the respondent did not admit the three contacts and the petitioner did not present any evidence regarding them, they could not serve as bases for the SPO. Id. We had to "disregard" them when determining whether there was sufficient evidence to support the SPO. Id.
Accordingly, the evidentiary record in this case is limited to the evidence received at the SPO hearing. It does not include the factual allegations in the petition, except the one allegation that respondent admittednamely, that he ran petitioner's boyfriend's license plate number.[2]
Thus, the question in this case becomes whether the evidence received at the SPO hearing was sufficient to support the SPO. As noted, civil SPOs are governed by ORS 30.866. In order to obtain an SPO under ORS 30.866, a petitioner must establish, by a preponderance of the evidence, that: (1) the respondent intentionally, knowingly, or recklessly engaged in repeated and unwanted contacts with the petitioner or members of the petitioner's household or immediate family; (2) the contacts alarmed or coerced the petitioner; (3) the petitioner's alarm or coercion was objectively reasonable; (4) the contacts caused the petitioner apprehension regarding the petitioner's own personal safety or that of a member of the petitioner's immediate family or household; and (5) the petitioner's apprehension was objectively reasonable. ORS 30.866(1); McGinnis-Aitken v. Bronson, 235 Or.App. 189, 192, 230 P.3d 935 (2010). To serve as predicate contacts for an SPO, the contacts must have occurred within two years of the filing of the SPO petition. ORS 30.866(6).
Terms used in ORS 30.866 are defined by ORS 163.730. "Repeated" means "two or more times." ORS 163.730(7). "Contact" includes, among other things, "[w]aiting outside the home * * * of the other person or of a member of that person's family or household," "[s]ending or making written or electronic communications in any form to the other person," and "[s]peaking with the other person by any means." ORS 163.730(3)(c), (d), (e). "Alarm" means "apprehension or fear resulting from the perception of danger." ORS 163.730(1). "Coerce" means "to restrain, compel, or dominate by force or threat." ORS 163.730(2).
In addition to the statutory requirements for an SPO, a constitutional requirement must be satisfied if a petitioner seeks to rely on a contact that involves *802 speech, which is protected by Article I, section 8, of the Oregon Constitution. State v. Rangel, 328 Or. 294, 303, 977 P.2d 379 (1999). To avoid constitutional overbreadth problems, a contact that involves speech can serve as a predicate contact for an SPO only if it is a threat. Id. A "threat" is "a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts." Id. Threats do not include "the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee." State v. Moyle, 299 Or. 691, 705, 705 P.2d 740 (1985).
Having set out the statutory and constitutional requirements for an SPO, we turn to the evidence in this case, which, as explained, is limited to the evidence received at the SPO hearing. For the reasons below, we conclude that, on this record, none of respondent's contacts with petitioner could serve as a predicate contact for the SPO because none of them would have caused petitioner objectively reasonable alarm or coercion, ORS 30.866(1)(a), (b), or objectively reasonable apprehension regarding her personal safety or that of a member of her immediate family or household, ORS 30.866(1)(c). McGinnis-Aitken, 235 Or.App. at 192, 230 P.3d 935.
At the SPO hearing, there was evidence that respondent sent petitioner a text message and called her. There was also evidence that he waited outside her house, came over uninvited, sat outside his house and came over while she was visiting her mother's house, and ran her boyfriend's license plate number. There was little evidence regarding the time, manner, or circumstances of the contacts.
Text messages and telephone calls can serve as predicate contacts for an SPO. ORS 163.730(3)(d), (e). If they involve speech, they can serve as predicate contacts if they are unequivocal threats of imminent serious personal violence that are likely to be carried out. Rangel, 328 Or. at 303, 977 P.2d 379. If they do not involve speech, but instead involve, for example, simply causing the petitioner's telephone to ring, they are treated the same as other nonexpressive contacts and, as such, can serve as predicate contacts if they cause the petitioner objectively reasonable alarm, coercion, or apprehension. Sparks v. Deveny, 221 Or.App. 283, 290, 293, 189 P.3d 1268 (2008) (causing a telephone to ring is a nonexpressive contact and can serve as a predicate contact if it satisfies the requirements of ORS 30.866(1)).
In this case, we do not need to decide whether the text message and telephone calls were expressive contacts because, even under the less stringent standard for nonexpressive contacts, the evidence was insufficient. Nothing in the record supports the conclusion that it was objectively reasonable for the calls or text message to cause alarm, coercion, or apprehension, as required by ORS 30.866(1). The message and calls may well have been unwanted and annoying, but more is required. See, e.g., Osborne v. Fadden, 225 Or.App. 431, 439, 201 P.3d 278, rev. den., 346 Or. 213, 208 P.3d 963 (2009) (although respondents subjected petitioners to a "barrage" of e-mails and telephone calls, which were unwanted and intended to harass and which petitioners found troubling and offensive, the e-mails and telephone calls could not constitute predicate contacts for an SPO because they would not have caused petitioners reasonable apprehension regarding their personal safety); Sparks, 221 Or. App. at 293, 189 P.3d 1268 (respondent's "hang-up" calls could not serve as predicate contacts for an SPO because they would not have caused petitioner reasonable personal safety concerns).
The same is true regarding respondent's other actions. Waiting outside a person's house or otherwise positioning oneself to observe or contact a person can be a predicate contact for an SPO if, in context, doing so would cause the person the required objectively reasonable alarm, coercion, or apprehension. Compare, e.g., Smith v. Di Marco, 207 Or.App. 558, 564, 142 P.3d 539 (2006) (respondent's act of following and watching petitioner could serve as a predicate contact for an SPO given respondent's history of violence and abuse towards petitioner), with Sparks, 221 Or.App. at 292-93, 189 P.3d 1268 (respondent's acts of following *803 petitioner, attending her exercise class, and calling her house did not constitute predicate contacts for an SPO). In this case, the limited evidentiary record fails to provide such context. There was no evidence that respondent's actions were explicitly threatening; for example, there was no evidence that respondent made threatening gestures or movements towards petitioner or otherwise exhibited an intent to harm her. Nor was there evidence that any of the acts were implicitly threatening; for example, there was no evidence of prior acts of violence or abuse by respondent. Again, respondent's contacts may well have been unwanted and annoying, but on this record we cannot say that they would have caused petitioner objectively reasonable alarm, coercion, or apprehension as required by ORS 30.866(1).
Reversed.
NOTES
[1] In Hanzo v. deParrie, 152 Or.App. 525, 537, 953 P.2d 1130 (1998), rev. den., 328 Or. 418, 987 P.2d 512 (1999), we held that SPOs are "decrees in a suit in equity" and, therefore, were subject to de novo review under ORS 19.415, which, at the time, provided for de novo review in equity cases. A 2009 amendment to ORS 19.415(3) made de novo review in equity cases discretionary (with an exception inapplicable to this case). Or. Laws 2009, ch. 231, § 2. But, because the notice of appeal in this case was filed before the effective date of the amendment, de novo review is required.
[2] The trial court may have believed that it could receive the petition as an exhibit or that petitioner could adopt the factual allegations as her testimony, but the petition was not offered or received into evidence, and petitioner did not adopt the allegations. In any event, either approach would have been vulnerable to a hearsay objection. Cf. Lowrance v. Trow, 225 Or.App. 250, 255, 200 P.3d 637 (2009) (treating factual allegations in an SPO petition as evidence where the petitioner adopted the allegations while testifying and the respondent did not object to their admission). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264686/ | 744 A.2d 410 (1999)
Gordon PARKER and Robert Bailey On Behalf of Themselves and Others Similarly Situated
v.
John GORCZYK, Commissioner, Vermont Department of Corrections.
No. 97-347.
Supreme Court of Vermont.
October 29, 1999.
Motion for Reargument Denied December 23, 1999.
*411 Jeffrey Dworkin, Montpelier, for Plaintiffs-Appellees.
William Sorrell, Attorney General, Montpelier, and Joseph L. Winn, Assistant Attorney General, Waterbury, for Defendant-Appellant.
Present: DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and CASHMAN, District Judge, Specially Assigned.
SKOGLUND, J.
Plaintiffs, two inmates incarcerated at the Woodstock Regional Correctional Facility, brought this class action seeking to enjoin defendant, the Commissioner of the Department of Corrections, from implementing a policy that would make prisoners convicted of violent felonies ineligible for furlough until the expiration of their minimum sentences. Based on its conclusion that the policy violated plaintiffs' right to due process guaranteed by Chapter I, Article 10 of the Vermont Constitution, the Windsor Superior Court permanently enjoined defendant from implementing the policy or adopting any other policy that would prevent the Department from making individualized furlough assessments for each prisoner. Because we conclude that the challenged policy does not violate statutory law or contravene plaintiffs' right to due process or equal protection of the law under the Vermont Constitution, we reverse the superior court's decision.
The material facts are not in dispute. As of January 1995, the Department's Offender Classification Manual provided as follows:
Extended furlough should be granted as part of an offender's reintegration plan and should occur during the 90 days prior to the offender's minimum release date. Extended furlough to a residential treatment, educational, or vocational program may be granted up to 6 months prior to an offender's minimum release date.
On January 24, 1995, the Commissioner amended this provision by adding the following sentence:
Exception: offenders incarcerated for felony violence are not eligible for release on Furlough until they have reached their minimum release date.
(Emphasis in original.) The Commissioner explained that the change was aimed at serving and protecting the public, and at bringing the Department's policy in line with public expectations concerning truth in sentencing and protection from violent offenders.
In April 1995, inmates Gordon Parker and Robert Bailey filed suit on behalf of themselves and similarly situated prisoners, asking the superior court to declare the new regulation unconstitutional and to enjoin the Commissioner from enforcing it. Plaintiffs alleged that the regulation constituted *412 an abuse of discretion, violated their rights to due process and equal protection of the law under the federal and Vermont constitutions, and was not promulgated in accordance with the Vermont Administrative Procedure Act (APA), in violation of 3 V.S.A. §§ 801-849.[*] At a hearing on plaintiffs' request for a preliminary injunction, the parties presented evidence on (1) the history and rationality of the new policy; (2) the impact of the policy on prisoners' chances of being granted parole upon the expiration of their minimum sentences; and (3) the specific impact of the policy on each plaintiff. Following the hearing, the superior court dismissed plaintiffs' due process claims, but granted preliminary injunctive relief based on its conclusion that plaintiffs had demonstrated a likelihood of success on their APA claim.
The parties then filed cross-motions for summary judgment after stipulating that they would not be presenting any additional evidence and that the evidence submitted at the preliminary hearing could be considered for a final ruling on the merits. In their motion, plaintiffs asked the court to reinstate their due process claim in light of the analysis contained in a recent United States Supreme Court case, Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The motion was initially denied, but following the rotation of a new judge into the superior court, plaintiffs filed a motion to reconsider. In August 1996, the successor judge reinstated plaintiffs' due process claim and declared that the Commissioner's change in furlough policy violated plaintiffs' right to due process guaranteed by the Vermont Constitution.
The court's decision was based on its conclusion that Vermont's furlough statute, 28 V.S.A. § 808, requires the Commissioner to exercise his discretion by making an individualized assessment of furlough eligibility for each inmate. In the court's view, by categorically barring furlough for a specified class of inmates before they served their minimum sentences, the new policy eliminated the Commissioner's statutorily mandated discretionary role in determining furlough eligibility, and thus constituted an abuse of discretion and a violation of due process. Accordingly, the court enjoined defendant from implementing the new regulation and from adopting any other policy that would allow him to deny furlough without making an individualized assessment of each prisoner under § 808(a).
On appeal, the Commissioner argues that plaintiffs have no due process right, either directly under Chapter I, Article 10 of the Vermont Constitution or indirectly through Vermont's furlough statute, to individualized assessments of their furlough eligibility before serving their minimum sentences. In response, plaintiffs ask this Court to uphold the superior court's determination that the challenged regulation violates both § 808 and their right to due process of law under the Vermont Constitution. Plaintiffs also argue in the alternative that the regulation violates their right to equal protection under the Vermont Constitution.
I
Because we generally address constitutional issues only when necessary, and because the superior court grounded its due process analysis on its determination that the challenged policy violates Vermont's furlough statute, we first consider the parties' statutory arguments. Section 808(a) provides as follows:
The commissioner may extend the limits of the place of confinement of an inmate at any correctional facility if in the judgment of the commissioner the inmate will honor his trust, by authorizing the inmate under prescribed conditions *413 to visit a specifically designated place or places for a period not to exceed 15 days and return to the same facility. An extension of limits may be granted:
(1) To visit a critically ill relative; or
(2) To attend a funeral of a relative; or
(3) To obtain medical services; or
(4) To contact prospective employers; or
(5) To secure a suitable residence for use upon discharge; or
(6) For any other reason consistent with the rehabilitation of the inmate.
(Emphasis added.) The superior court held that this statute requires the Commissioner to exercise his judgment by making an individualized assessment for each inmate to determine whether "the inmate will honor his trust" and thus be placed on furlough.
In support of this ruling, plaintiffs argue that if the Commissioner automatically denies furlough for a specified category of inmates, then furlough will not have been granted or denied based on whether each of those inmates "will honor his trust." Further, plaintiffs argue that only by individually assessing each inmate can the Commissioner rationally determine whether any of the six specified statutory criteria warrant granting furlough for particular prisoners. Plaintiffs contend that their view is supported by other related statutory provisions denoting the purposes of the Department and the responsibilities of the Commissioner. See 28 V.S.A. § 1(b) (Department shall strive to develop and implement comprehensive program that will confine frequent dangerous offenders but will seek to prepare offenders for reintegration into community); 28 V.S.A. § 102(c)(3), (8) (among responsibilities of Commissioner is to establish "a program of treatment designed as far as practicable to prepare and assist each inmate ... to participate as a citizen of the state and community," and "to establish a program for each inmate upon his commitment to the facility and to review the program of each inmate at regular intervals and to effect necessary and desirable changes in the inmate's program of treatment"). Finally, according to plaintiffs, the fact that, functionally, each inmate's chances of obtaining parole depend upon his having achieved furlough status demonstrates that the Legislature intended § 808(a) to require individualized assessments with respect to that status.
We are not persuaded by these arguments. First, we find no language in § 808(a) entitling each inmate to an individualized furlough assessment before his minimum release date. The statute provides that the Commissioner "may" grant furlough "if in the judgment of the commissioner the inmate will honor his trust." Thus, the Commissioner is not required to grant furlough even if he determines that "the inmate will honor his trust." As this Court stated in Conway v. Cumming, 161 Vt. 113, 118, 636 A.2d 735, 738 (1993), § 808(a) contains "no limitations on the discretionary authority granted to the Commissioner."
More significantly, even assuming that § 808 required an individualized assessment of each inmate's furlough eligibility, it contains no limitations on the Commissioner's discretion in determining when to make such individualized assessments. The Legislature knows how to impose such limitations, but chose not to do so with respect to the furlough statute. Cf. 28 V.S.A. § 501(2) ("If the inmate's sentence has a minimum term, the inmate shall be eligible for parole consideration after the inmate has served the minimum term of the sentence less any reductions in term for good behavior.").
The challenged policy sets forth eligibility requirements that prevent plaintiffs from obtaining furlough prior to completion of their minimum sentences, but does not preclude the Commissioner from exercising his discretion regarding furlough on *414 an individual basis once those requirements are met. Thus, by delaying individual furlough assessments for inmates convicted of violent felonies until those offenders have completed their minimum sentence, the Commissioner is not exercising his discretion in a manner inconsistent with § 808(a) or the statutory criteria contained therein. Cf. Burbo v. Department of Social Welfare, 157 Vt. 664, 665, 599 A.2d 1045, 1046 (1991) (department abused its discretion by failing to follow own regulation giving it discretion to set welfare recoupment rates in individual cases). Accordingly, the superior court erred in concluding that the challenged policy violated § 808(a). See State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996) (unless necessary to effectuate legislative intent, judiciary may not read something into statute that is not there).
Sections 1 and 102, cited by plaintiffs, do not compel us to construe § 808(a) as mandating individual furlough assessments for each inmate prior to the inmate's minimum release date. Those statutes merely set forth the general goals of our penal institutions, which include protection of the public from violent offenders as well as rehabilitation and reintegration into the community.
Further, we reject plaintiffs' attempt to bootstrap their right to parole consideration following completion of their minimum sentences onto § 808(a) so as to create an otherwise nonexistent statutory right to an individualized furlough assessment prior to their minimum release dates. Cf. Bishop v. State, 667 A.2d 275, 279 (R.I.1995) (inmate "cannot piggyback his parole liberty interest onto the prison classification system"). The fact that parole determinations may ultimately be affected by whether prisoners have been granted furlough does not compel us to read § 808(a) as requiring the Commissioner to provide an individual furlough assessment before each inmate reaches his minimum release date. As the Court of Appeals for the Second Circuit stated in an analogous context concerning federal law:
Although the Attorney General may . . . grant furloughs of up to 30 days, and permit a prisoner to work outside a prison or engage in community activities, subject to certain conditions, he is under no statutory obligation to exercise any of these powers with respect to any prisoner. It may be true . . . that a [Central Monitoring Case] designation in practice delays or precludes a prisoner from being favorably considered for furloughs, transfers, work releases, participation in community activities and even early parole, but the fact remains that these freedoms are mere possibilities, like an unclassified prisoner's prospect of release on parole, with no prisoner (CMC or not) able to prove any state of facts which would entitle him to these freedoms. Non-CMC status, in other words, merely gives a prisoner a greater chance of enjoying these freedoms, it does not guarantee them.
Pugliese v. Nelson, 617 F.2d 916, 923-24 (2d Cir.1980) (citations omitted).
We also reject plaintiffs' argument that the Commissioner acted beyond his authority in basing the challenged policy on his concerns over the public's allegedly incorrect perception that violent crime is on the increase. The Commissioner has general authority to "establish and administer programs and policies for the operation of the correctional facilities of the department, and for the correctional treatment of persons committed to the custody of the commissioner." 28 V.S.A. § 102(b)(2). More specifically, the Commissioner is charged with making rules and regulations for the governing of and treatment of inmates, see id. § 102(c)(1), and for establishing a system of classification of inmates, see id. § 102(c)(8). Without doubt, the Commissioner acted within the authority conferred upon him by the Legislature in promulgating the challenged policy. See, e.g., White v. Fauver, 219 N.J.Super. 170, 530 A.2d 37, 41 (1987) *415 (public's perception of safety must be considered because public confidence that safety is not jeopardized is essential component to any prison program attempting to rehabilitate prisoners through supervised interaction with community).
II.
Having determined that the challenged policy does not violate § 808(a), we now turn to plaintiffs' claim that the policy violates their right to due process. Plaintiffs' due process claim is brought under the Vermont Constitution. Because our jurisprudence in this area has relied heavily on that of the United States Supreme Court, and plaintiffs ask us to adopt a test stemming from earlier Supreme Court decisions, we briefly review the relevant due process jurisprudence of both the United States Supreme Court and this Court before addressing plaintiffs' arguments as they apply to this particular case.
A.
The United States Supreme Court has recognized that prisoners are not "wholly stripped" of constitutional protections following their criminal convictions. See Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Court articulated the "grievous loss" standard, holding that because the grant of parole confers a significant liberty interest upon parolees, the termination of that interest constitutes a "grievous loss" that calls for some orderly process, however informal. In arriving at this holding, the Court stated that procedural protections are due to the extent that an individual will suffer a grievous loss, which depends not merely on the "weight" of the individual's interest, but on "whether the nature of the interest is one within the contemplation of the `liberty or property' language of the Fourteenth Amendment." Id. at 481, 92 S.Ct. 2593; see also Young v. Harper, 520 U.S. 143, 151-52, 117 S.Ct. 1148, 137 L.Ed.2d 270 (1997) (concluding that program employed by State of Oklahoma to reduce prison overcrowding was sufficiently like parole, and distinguishable from furlough, to require procedural protections set forth in Morrissey).
In a later case involving a challenge to a prison transfer, the Court emphasized that the "determining factor" in a procedural due process analysis "is the nature of the interest involved rather than its weight." Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The Court explicitly rejected the notion that "any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause." Id. To hold otherwise, the Court warned, "would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." Id. at 225, 96 S.Ct. 2532.
The Court continued to apply these principles in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), where inmates claimed that they had been unconstitutionally denied parole. The Court rejected the inmates' claim that they were entitled to protection directly under the Due Process Clause, holding that "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Id. at 7, 99 S.Ct. 2100. In arriving at this holding, the Court distinguished between parole release and parole revocation, stating that "[t]here is a crucial distinction between being deprived of a liberty one has ... and being denied a conditional liberty that one desires." Id. at 9, 99 S.Ct. 2100. The Court pointed out the inherent difference between revocation decisions, which generally depend on proving specific facts, and release decisions, which involve a more subtle and subjective assessment of a multitude of factors. See id. at 9-10, 99 S.Ct. 2100. Nevertheless, though finding no *416 constitutional protection directly under the Due Process Clause, the Court concluded that the unique language of the Nebraska parole statute created a liberty interest that was entitled to protection under the Fourteenth Amendment. See id. at 12, 99 S.Ct. 2100. The dissent argued that the existence of a parole system providing the possibility of early release does implicate a liberty interest under the Fourteenth Amendment and therefore requires due process protections with respect to parole-release decisions regardless of the uniqueness of Nebraska's statute. See id. at 19, 23, 99 S.Ct. 2100 (Powell, J., concurring in part and dissenting in part) (Marshall, J., dissenting).
After Greenholtz, the Court increasingly focused on the language of particular state statutes or regulations to determine whether there existed state-created liberty interests entitled to protection under the Due Process Clause. See, e.g., Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (parsing language of prison regulation led Court to hold that discretionary language of transfer decision negated any state-created liberty interest); Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (finding that mandatory language of prison regulation had created protected liberty interest).
In Sandin v. Conner, however, the Court renounced its growing tendency to focus on the language of particular regulations rather than on the nature of the deprivation, see 515 U.S. at 481, 115 S.Ct. 2293, complaining that the former methodology had "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements." See id. at 480-81, 115 S.Ct. 2293. While maintaining its long-standing position that the Due Process Clause alone does not create a liberty interest in being free from state action while under sentence, see id. at 480, 115 S.Ct. 2293, the Court pronounced that state-created liberty interests protected by the Due Process Clause would be limited to freedom from restraints imposing "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," Id. at 484, 115 S.Ct. 2293. The Court then held that the alleged deprivation in that case discipline in segregated confinementdid not present the type of deprivation which infringed upon a liberty interest. See id. at 486, 115 S.Ct. 2293.
B.
As noted, plaintiffs' due process claim is brought under the Vermont Constitution, which provides that no person can "be justly deprived of liberty, except by the laws of the land." Vt. Const. ch I, art. 10. "[A]s final interpreter of the Vermont Constitution, this Court has final say on what process is due in any given situation." State v. Brunelle, 148 Vt. 347, 350, 534 A.2d 198, 201 (1987). Nevertheless, the term "laws of the land" in Article 10 is synonymous with the term "due process of law" contained in the Fourteenth Amendment of the United States Constitution, see id., and, as such, our own due-process jurisprudence has relied heavily on that of the United States Supreme Court even when our decisions were ultimately based on the Vermont Constitution.
For example, in G.T. v. Stone, 159 Vt. 607, 610-11, 622 A.2d 491, 493 (1992), this Court relied on the analysis contained in Morrissey and other federal cases in concluding that a patient conditionally released from commitment to a mental hospital has a liberty status that cannot be terminated without due process of law. Although we reached our decision under both the United States Constitution and on independent grounds under the Vermont Constitution, we added little to our state constitutional analysis, other than noting that the Vermont Constitution explicitly provides that people enjoy freedom from restraint as a natural, inherent and unalienable right. See id. at 613, 622 A.2d at 494. In more recent cases, we have adopted the same pattern of basing our *417 due process analysis on federal case law before making an independent determination under the Vermont Constitution. See Mullin v. Phelps, 162 Vt. 250, 263, 647 A.2d 714, 721 (1994) (holding that finding of sexual abuse by mere preponderance of evidence is insufficient process for court in divorce case to terminate all parent-child contact; emphasizing that although due process analysis relied heavily on United States Supreme Court case, holding was grounded on Chapter I, Article 10 of Vermont Constitution); LaFaso v. Patrissi, 161 Vt. 46, 51, 633 A.2d 695, 698-99 (1993) (applying test from Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine that preponderance-of-evidence standard of proof is required in prison disciplinary hearings to satisfy due process under both Vermont and federal constitutions).
C.
Plaintiffs contend that they should prevail under any of the due process tests applied over the years, but ask this Court to adopt the "grievous loss" test stated in Morrissey. See 408 U.S. at 481-82, 92 S.Ct. 2593; Conway, 161 Vt. at 123, 636 A.2d at 741 (Dooley, J., dissenting) (relevant question is whether any change in conditions of imprisonment constitutes sufficiently grievous loss to trigger due process protection). We decline to adopt as a threshold test any of the legal catchwordssuch as "grievous loss," "liberty interest," "entitlement," or "atypical and significant hardship"that have marked the Supreme Court's due process jurisprudence.
Each of these phrases seeks to determine the point along the continuum of claimed interests at which due process protections are warranted. But labeling that point with a catchword does not aid the analysis. Rather, each case requires a fact-sensitive examination of the particular circumstances involved, including consideration of the nature and significance of the interest at stake, the potential impact of any decision resulting in a deprivation of that interest, and the role that procedural protections might play in such a decision.
Here, the interest involved is plaintiffs' anticipation of obtaining furlough before serving their minimum sentences. At least two aspects of this interest reduce its significance. First, plaintiffs claim an interest in freedom from in-house confinement not only before the expiration of their sentences, but before expiration of their minimum release dates. As convicted prisoners, plaintiffs do not have a right to freedom from confinement during the period of their lawful sentences. See Greenholtz, 442 U.S. at 7, 99 S.Ct. 2100 (given valid criminal conviction, prisoner's interest in being free from confinement has been extinguished). Any interest they have in freedom from confinement is even less significant before they serve their minimum sentences. See Conway, 161 Vt. at 116-17, 636 A.2d at 737 (finding qualitative difference between prisoners' interest in release from parole as opposed to furlough).
Second, plaintiffs are concerned with obtaining eligibility for furlough rather than maintaining an already realized conditional freedom. Conceding that they are not necessarily entitled to furlough, plaintiffs ask only for individual furlough assessments that may or may not result in their obtaining furlough. As Judge Henry Friendly cogently noted, "there is a human difference between losing what one has and not getting what one wants." H. Friendly, Some Kind of Hearing, 123 U. Pa. L.Rev. 1267, 1296 (1975). Without deciding whether revocation of furlough implicates due process protections under the Vermont Constitution, we conclude that plaintiffs' anticipation of furlough is a less significant interest than if they were defending against revocation of furlough. In short, plaintiffs have a sharply limited interest in obtaining individualized furlough assessments before serving their minimum sentences.
*418 Plaintiffs make much of the probable negative impact of the denial of furlough consideration on whether they will be granted parole upon completing their minimum sentences. Although plaintiffs presented evidence indicating that a prisoner who has achieved furlough status is in a significantly better position to obtain parole, the fact remains that plaintiffs' anticipation of parole requires an additional level of speculation beyond their hopes of being furloughed. See Berard v. Vermont Parole Bd., 730 F.2d 71, 73-74 (2d Cir. 1984) (neither mere possibility of release nor statistical probability of release creates legitimate expectation of release on parole); Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 844 (9th Cir. 1985) (statistical probability that particular treatment will be applied under regulations does not implicate due process protections). The evidence at the preliminary hearing was that the board has no categorical approach in deciding whether to grant parole, and that parole decisions concern other factors besides whether the inmates were being held in community custody. Indeed, the evidence indicated that the board had denied parole to inmates who had been granted furlough, and had granted parole to inmates who had never been furloughed. In any event, as we stated in rejecting their statutory arguments, plaintiffs cannot bootstrap any protectable interest in parole that they might have onto a claimed interest in obtaining furlough before serving their minimum sentences. See Bishop, 667 A.2d at 279.
As for the role that procedural protections might play, plaintiffs complain that categorical exclusions will result in furlough being denied before the minimum release dates of violent felons who are in fact ready to be reintegrated into the community. We do not find this argument persuasive. As the United States Supreme Court stated in Greenholtz, "there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error-free determinations." 442 U.S. at 7, 99 S.Ct. 2100. The Commissioner's categorical exclusion might preclude the release of violent felons who could have successfully reintegrated into the community before serving their minimum sentences, but it also will assure that violent felons who are not ready for reintegration into the community are not mistakenly released before they serve their minimum sentences.
Unlike revocation decisions, which most often turn on factual questions such as whether an inmate's misconduct violated conditions of release, release decisions involve a discretionary assessment of a multitude of factors that require subjective appraisals. See id. at 9-10, 99 S.Ct. 2100 (comparing difference between release and revocation decisions). Procedural due process protections are less pivotal when the prisoner's status is subject to change without a showing of misconduct. See Jenkins v. Fauver, 108 N.J. 239, 528 A.2d 563, 567 (1987) (noting that the Supreme Court has generally declined to extend due process protections in situations not requiring proof of misconduct); cf. Conway, 161 Vt. at 126, 636 A.2d at 742 (Dooley, J., dissenting) (when sole issue is whether inmate committed act that caused furlough revocation, and there are no questions of professional judgment or discretion, price of due process is small, while gain in protection against arbitrary action is great). Indeed, because the Commissioner has the authority to classify prisoners without regard to their individual disciplinary records, one could argue that providing plaintiffs with procedural due process protections would have served no useful purpose because the only factual issue to be resolved was whether plaintiffs had been convicted of violent felonies, a fact they do not dispute. See Jenkins, 528 A.2d at 571.
In considering the role that procedural protections might play, we recognize that plaintiffs' due process claim has both procedural and substantive overtones. It is procedural in the sense that plaintiffs are *419 asking for a particular processan individualized assessment. But it is also substantive in the sense that, in effect, they are claiming that the Commissioner violated due process by applying an impermissible categorical criterion to preclude them from obtaining individualized furlough assessments before their minimum release dates. See Winsett v. McGinnes, 617 F.2d 996, 1004 (3d Cir.1980) (noting procedural and substantive overtones of due process claim); 2 R. Rotunda, J. Nowak & J. Nelson, Treatise on Constitutional Law § 14.6, at 13 (1986) (substantive review is concerned with constitutionality of underlying rule rather than fairness of process by which government applies rule to individual).
In any event, whether their due process claim is substantive, procedural, or an amalgam of both, plaintiffs have failed to show that Chapter I, Article 10 of the Vermont Constitution prohibits the Commissioner from denying them furlough before their minimum release dates by classifying them based on the type of crime they committed. Given the nature of plaintiffs' interest, we conclude that plaintiffs were not entitled to procedural protections directly under the Vermont Constitution. Nor did § 808 entitle them to procedural protections under the Vermont Constitution, as evidenced by our construction of the statute above. Cf. Lee v. Governor of New York, 87 F.3d 55, 58 (2d Cir.1996) (rejecting prisoners' due process claim challenging statute that prevented commissioner from allowing prisoners convicted of certain offenses to participate in work release program).
Further, to the extent that plaintiffs' due process claim is substantive in nature, it does not concern a fundamental constitutional right or suspect class; therefore, plaintiffs must demonstrate that there is no conceivable rational relation between the challenged regulation and a legitimate end of government. See R. Rotunda, supra, § 15.4, at 61-62 (challenged government act not involving fundamental right or suspect class will be upheld against substantive due process or equal protection claims unless no reasonable conceivable set of facts could establish rational relationship between challenged regulation and legitimate end of government); see also Washington v. Harper, 494 U.S. 210, 223, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (even when fundamental constitutional right is involved, proper standard for determining validity of prison regulation is whether regulation is reasonably related to legitimate penological interests). The challenged policy of not allowing violent felons to obtain furlough before serving their minimum sentences was intended to protect the public and meet public expectations that offenders will serve their sentences. Unquestionably, a general rule requiring violent felons to serve their minimum sentences before becoming eligible for parole meets the rational basis standard. Cf. Thornton v. Hunt, 852 F.2d 526, 527 (11th Cir.1988) (classification denying "good time" credits to prisoners serving sentences greater than ten years is rationally related to legitimate purpose of preventing early release of serious offenders).
The standard is the same under an equal protection analysis, and thus plaintiffs' equal protection claim also fails. See Lorrain v. Ryan, 160 Vt. 202, 212, 628 A.2d 543, 550 (1993) (when no fundamental right or suspect class is involved, test under Vermont Constitution's Common Benefits Clause is whether law is reasonably related to promotion of valid public purpose); see also Baumann, 754 F.2d at 846 (legitimate interest in deterrence and public perception of fair administration of justice allows states to base early release decisions on type of offense); Mahfouz v. Lockhart, 826 F.2d 791, 794 (8th Cir.1987) (state's decision to exclude sex offenders from work release program is rationally related to legitimate government purpose of preventing sex crimes); Hastings v. Commissioner of Correction, 424 Mass. 46, 674 N.E.2d 221, 226 (1997) (classification policy met rational basis test even though *420 prison officials did not submit factual proof that prisoners with life sentences who had been denied parole two or more times were more likely than other prisoners to attempt escape).
III.
Plaintiffs may have anticipated obtaining furlough before serving their minimum sentences so long as their conduct conformed with their case plans, but "because of the unique circumstances that attend the administration of prisons, reasonable assumptions of inmates cannot always be equated with constitutionally protected interests." Jenkins, 528 A.2d at 570. Any such reliance on the part of plaintiffs did not prevent the Commissioner from altering the Department's furlough policy. The Commissioner has the authority to classify prisoners in administering the prison system. Considerations behind such classifications are peculiarly within the province and professional expertise of prison officials, and courts should ordinarily defer to their expert judgment in such matters. See Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
We must strike the appropriate balance between the need for the protection of prisoners' individual interests and the need for prison officials to undertake the difficult task of administering a prison system unhampered by unwarranted procedural burdens. See Wolff, 418 U.S. at 566, 94 S.Ct. 2963 (recognizing that broad discretionary authority of prison officials is necessary for them to undertake extraordinarily difficult task of administering prison). If we were to accept plaintiffs' proposition that they are entitled to due process protections with respect to any prison policy having the potential to impinge directly or indirectly on inmates' conditions or length of confinement, we would subject to judicial review a wide spectrum of discretionary matters that are within the Commissioner's authority and expertise. See Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir.1996); Bishop, 667 A.2d at 278. The Vermont Constitution does not require us to do so under the circumstances present in this appeal.
Reversed and remanded.
MORSE, J., dissenting.
The Commissioner's policy carves out an exception to the furlough release program, rendering all offenders incarcerated for committing violent felonies ineligible for release on furlough until they have reached their minimum release date. Categorically denying furlough to a class of inmates is contrary to the intent of the Legislature in enacting 28 V.S.A. § 808(a). Therefore, I respectfully dissent.
The Court holds that the language of § 808(a) allows the Commissioner to make this categorical exception. See 28 V.S.A. § 808(a) ("commissioner may extend the limits of the place of confinement of an inmate at any correctional facility if in the judgment of the commissioner the inmate will honor his trust"). The Court reads the word "may" to connote both discretion whether to invoke furlough and, if invoked, whether to perform an individualized assessment. In my view, such a reading is too broad a construction of the Commissioner's authority, and one that disregards the statutory scheme governing the Department of Corrections. According to the Court, if the Commissioner is so disposed, he can withhold furlough from any "trustworthy" inmate, or any class of inmate for any or no reason whatsoever. This is obviously not what the Legislature had in mind. See Vincent v. Vermont State Retirement Bd., 148 Vt. 531, 535, 536 A.2d 925, 928 (1987) (discretion granted by Legislature to administrative agency must not be "unrestrained and arbitrary") (citation omitted).
When words of common use are found in a statute, they are to be taken in their ordinary sense, unless a contrary intention is evident. See State v. Levine, 117 Vt. 320, 322, 91 A.2d 678, 679 (1952). Generally, in the construction of statutes, the *421 plain, ordinary meaning of the word "may" indicates that it is discretionary and not mandatory. See In re D.L., 164 Vt. 223, 234, 669 A.2d 1172, 1180 (1995). Nevertheless, the context in which the word appears must be the controlling factor. See Black's Law Dictionary 979 (6th ed.1990) (noting the distinction between "may" and "shall"). In statutory construction, determining whether "may" is to be construed as imposing an absolute duty or merely a discretionary power, the true intent and purpose of the Legislature must be ascertained and given effect. See Levine, 117 Vt. at 323, 91 A.2d at 679-80. Thus, after examining legislative intent and purpose, in certain instances, the word "may" has the effect of "must." See Richard v. Richard, 131 Vt. 98, 102, 300 A.2d 637, 639 (1973) (although use of word "may" appears to be merely permissive, it would be inconsistent with spirit of act to construe it as permissive and not mandatory); see also 3 Sutherland Statutory Construction § 57.03, at 7 (5th ed.1992) (although form of verb used in statute is single most important textual consideration in determining whether statute is mandatory or directory, it is not sole determinant; other considerations, such as legislative intent can overcome ordinary meaning).
The interpretation of 28 V.S.A. § 808(a) as conferring upon the Commissioner complete discretion whether to undertake an assessment of an inmate's eligibility for furlough renders the statute superfluous. The Court finds no entitlement to individualized furlough assessment prior to their minimum release dates. The Court need not, however, find an "otherwise nonexistent statutory right," ___ Vt. at ___, 744 A.2d at 414, to recognize that the exclusion of an entire class of inmates from furlough assessment exceeds the bounds of the Commissioner's authority and shortchanges the Legislature's intent implicit in § 808(a) and expressed in other statutory provisions.
First, the Legislature has mandated that the Department of Corrections shall not only "implement a comprehensive program which will provide necessary closed custodial confinement of frequent, dangerous offenders," but also "establish as its primary objective the disciplined preparation of offenders for their responsible roles in the open community." 28 V.S.A. § 1(b) (emphasis added). Absolute exclusion of any class of inmates from consideration for furlough before their minimum release date ignores this primary objective.
Second, the Court has failed to reconcile 28 V.S.A. § 808(a) with 13 V.S.A. § 11a. Section 11a establishes a mechanism through which the State may seek greater penalties for those persons convicted of a third "felony crime of violence." Section 11a(e) specifically provides: "No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence." 13 V.S.A. § 11a(e). Statutes are to be considered in relation to one another when they "deal with the same subject matter or have the same objective or purpose." Board of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Bd., 162 Vt. 571, 574, 649 A.2d 784, 786 (1994). Since both § 11a(e) and § 808(a) relate to the Commissioner's discretionary authority to assess furlough eligibility, they should be construed with reference to each other. Read together, the statutes illustrate that the Legislature retained the prerogative to exclude certain classes of inmates from § 808(a). Therefore, the Commissioner's challenged policy to exclude all inmates convicted of violent felonies from consideration under § 808(a) is an indisputable extension of his authority beyond the limits established in § 11a(e).
In addition to finding that the use of the word "may" does not entitle each inmate to a determination of furlough eligibility prior to his release date, the Court holds that any such determination undertaken by the Commissioner need not include an *422 individual assessment of trustworthiness. Again, the Court focuses too narrowly on the word "may" to the exclusion of Legislative intent. Under § 808(a), the Commissioner has discretion to grant a furlough to "an inmate" after determining that "the inmate" will be trustworthy. The use of the singular articles "an" and "the" prior to "inmate" by the Legislature denotes the individual significance of each inmate, plainly indicating the Commissioner's obligation to individually assess the merits for granting furlough status.
In another statute, the Legislature provided the Commissioner with discretion for addressing medical furloughs. See 28 V.S.A. § 808(f) ("commissioner shall develop a policy regarding the application for, standards for eligibility of and supervision of persons on medical furlough"). Had the Legislature wanted to grant the Commissioner the authority to develop standards for inmate eligibility for general furloughs, it would have done so. It did not, and the class of inmates excluded in this case is entitled to the attention the Legislature asked the Commissioner to provide.
Finally, the Court overlooks the practical impact of the Commissioner's policy. The Court acknowledges plaintiffs' evidence indicating that prisoners who achieve furlough status are in a significantly better position to obtain parole compared to those who have not. Since furlough status may be granted during the three to six month period preceding a prisoner's minimum release date, exclusion from furlough consideration prior to this date in effect operates to lengthen the prisoner's sentence. In May 1995, the Commissioner had in his custody approximately 263 violent offenders who had not yet reached their minimum release dates. Lengthening sentences for a whole class of prisoners may result in significant costs. Such an effect begs the active involvement of both Legislative and Executive branches, rather than one branch to the exclusion of the other.
For the foregoing reasons, I would affirm the superior court's conclusion that the policy exceeds the Commissioner's discretionary authority under 28 V.S.A. § 808(a). The Court further holds that the policy does not violate plaintiffs' right to due process or equal protection under the Vermont Constitution. Since the policy exceeds, in my opinion, the authority vested in the Commissioner under § 808(a), this constitutional analysis is unnecessary. I am authorized to state that Justice Dooley joins in this dissent.
NOTES
[*] Plaintiffs have not argued here on appeal that the Commissioner's challenged regulation was promulgated in violation of the Administrative Procedure Act, and thus we do not address that issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264689/ | 239 P.3d 1120 (2010)
In the Matter of the DEPENDENCY OF B.R., b.d. 09/05/03, and T.V., b.d. 12/17/05, Minor Children.
Letitia Monique Vandermeer, Appellant,
v.
State of Washington Department of Social and Health Services, Respondent.
Nos. 63788-6-I, 63789-4-I.
Court of Appeals of Washington, Division 1.
September 27, 2010.
*1121 Mindy M. Ater, Wash. App. Project, Seattle, WA, for Appellant.
Arlene K. Anderson, Michael S. Majors, Office of the Atty. General, Everett, WA, for Respondent.
Martin W. Hodges, Attorney at Law, Everett, WA, for Guardian Ad Litem.
Rima J. Alaily, Microsoft Corp., Redmond, WA, Molly A. Terwilliger, Summit Law Group, Seattle, WA, for Amicus Curiae (Legal Voice).
SCHINDLER, J.
¶ 1 Letitia M. Vandermeer appeals the trial court's decision to terminate parental rights to her two children. The trial court identified the central parental deficiency as the mother's relationships with abusive partners. Because clear, cogent, and convincing evidence does not support the findings that Vandermeer is currently unfit to parent or that there is little likelihood conditions would be remedied so the children could be returned to Vandermeer in the near future, we reverse and remand.
FACTS[1]
¶ 2 Letitia Vandermeer is the mother of B.R., born on September 5, 2003, and T.V., *1122 born on December 17, 2005. Andrew Renfro is the father of both children.
¶ 3 Vandermeer and Renfro were together off and on from 1999 until 2003. During the relationship, Renfro abused Vandermeer. Vandermeer and Renfro separated a month after B.R. was born. Vandermeer testified that the last time Renfro was violent towards her was before B.R. was born.
¶ 4 In February 2005, Vandermeer and Destry Schnebly started living together. Vandermeer worked full time. Schnebly or his mother routinely provided child care for B.R.
¶ 5 On May 31, 2005, Harborview Hospital contacted the Department of Social and Health Services (DSHS) to report that B.R. had sustained a brain injury. Schnebly said that B.R. fell down the stairs. The doctors stated that the head injury B.R. sustained was consistent with the type of injury caused by being shaken, not falling down the stairs. DSHS took B.R. into protective custody.
¶ 6 DSHS filed a dependency petition on June 3. On July 5, DSHS and Vandermeer entered into an agreed order for an in-home dependency. The order finds B.R. is dependent under RCW 13.34.030(5)(c), stating there is "no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development." The disposition order requires Vandermeer to complete a DSHS approved anger management assessment, continue to participate in an approved domestic violence support group, and adhere to the protection order against Schnebly and the protection order against Renfro.
¶ 7 In September 2005, Vandermeer obtained an anger management assessment and a domestic violence evaluation at Phoenix Counseling and Court Services. The report states that neither "anger management [nor] domestic violence treatment is indicated in this case," but recommends that Vandermeer begin attending a support group for victims of domestic violence and maintain the protection order against Schnebly "indefinitely."
¶ 8 At the dependency review hearing on October 4, 2005, the court found that Vandermeer had complied with court-ordered services, including completing the anger management assessment, participating in a domestic violence support group, and maintaining the protection order against Renfro. However, because Vandermeer did not file the return of service for the protection order against Schnebly, the court ordered B.R. removed from her care and ordered Vandermeer to obtain a valid protection order against Schnebly.
¶ 9 In a services evaluation in November 2005, DSHS expressed concern that Vandermeer "seems unable to move forward but instead seems to be waiting for the final determination of [Schnebly's] guilt or innocence. If he is guilty, she has stated that she will cut off all contact with him." The report also states that Vandermeer:
has participated in services that have been recommended and is likely to follow through with any needed ongoing services. From the beginning of the intervention until the end, she has stated her commitment to [B.R.] and to doing whatever is necessary to see him in her care.
¶ 10 On December 17, 2005, T.V. was born.[2] DSHS filed a dependency petition as to T.V. on December 20.[3] DSHS alleged the dependency was justified by the abuse inflicted by Schnebly on B.R., and by Vandermeer's failure until recently to obtain a valid protection order against Schnebly. Following a shelter care hearing, the court allowed T.V. to remain in Vandermeer's care. The court ordered Vandermeer to not allow any contact between T.V. and Schnebly or Renfro. Renfro later established paternity of T.V.
¶ 11 In response to the dependency petition, Vandermeer admitted that Schnebly injured B.R. in May 2005, and that B.R. was removed a second time in October 2005 because *1123 of her failure to obtain a valid protection order against him.
¶ 12 On March 14, 2006, DSHS and Vandermeer entered into an agreed dependency order that allowed T.V. to remain in Vandermeer's care in an in-home dependency. The disposition order required Vandermeer to maintain the protection order against Schnebly and attend domestic violence support groups. A week later DSHS also placed B.R. back in Vandermeer's care under an agreed court order restoring the in-home dependency.
¶ 13 Over the next year, the court conducted periodic dependency review hearings. The court consistently found Vandermeer in compliance with the disposition order. DSHS planned to request dismissal of the dependencies. However, in May 2007, DSHS learned that Vandermeer had contact with Schnebly in August 2006, when she attended the funeral of his mother. Vandermeer acknowledged seeing Schnebly at the funeral, but said the contact was innocuous.
¶ 14 At a dependency review hearing on May 24, 2007, the court found that Vandermeer "violated the no contact order with Destry Schnebly in August '06.... Continuing contact is a serious concern." The court ordered B.R. and T.V. placed in protective custody. The court ordered Vandermeer to obtain a psychological evaluation and required supervised visitation.
¶ 15 Evan B. Freedman, Ph.D., conducted the evaluation of Vandermeer, but DSHS did not authorize "a full assessment of parental competence." DSHS asked Dr. Freedman to assess Vandermeer's "intellectual and emotional function and make any relevant treatment diagnoses." DSHS specifically raised questions concerning Vandermeer's ability to keep her children safe and her amenability to services. DSHS expressed significant concerns regarding "lack of supervision, minimization of the effect that abuse and neglect has had on the children and the potential that Ms. [Vandermeer] has continued to maintain a relationship with an unsafe/abusive partner."
¶ 16 In his report dated January 4, 2008, Dr. Freedman noted that despite Vandermeer's chaotic upbringing, her exposure to drug and alcohol abuse, and placement in foster care as a teenager, Vandermeer was academically successful and has a strong work history with no indications of drug or alcohol abuse:
In spite of her earlier childhood history, Ms. [Vandermeer] does demonstrate several strengths, specifically what appears to be Average Intellectual Function, relative success academically, a lack of significant drug and alcohol issues and an apparent strong work history.
¶ 17 Dr. Freedman identified the most significant concern as the potential for neglect by allowing contact with potentially dangerous partners:
[T]he more significant concern is around the potential for neglect, specifically by allowing contact with potentially dangerous adults. This concern is heightened by the fact that Ms. [Vandermeer] continues to struggle to learn this lesson in spite of the fact that one of her former paramours inflicted serious injury upon one of her children resulting in an extended hospitalization. As noted below in the treatment recommendations, Ms. [Vandermeer] will need consistent and ongoing support in order to learn improved self-understanding and interpersonal skills, specifically around setting limits and boundaries with negative partners. It is also hoped that she will gain further insight into the negative effects both on herself and her children of her potential affiliation with negative male partners.
¶ 18 Dr. Freedman's treatment recommendations included counseling and participation in a support group for victims of domestic violence.
The following treatment recommendations are provided in hopes of supporting Ms. [Vandermeer] and her parental ability:
1. Given Ms. [Vandermeer]'s history and personality configuration, she will have difficulty setting limits with romantic partners and a tendency to affiliate with potentially negative or abusive partners. It is hoped that through therapy and support Ms. [Vandermeer] will be better able to manage these *1124 kinds of relationships. Nonetheless, those working with her should be on guard and intervene if she affiliates with male intimates who might potentially harm her children.
2. It is recommended that Ms. [Vandermeer] participate in victim/survivor's domestic violence treatment.
Dr. Freedman noted some concern about whether Vandermeer was amenable to psychotherapy, but concluded she would benefit from counseling:
Ms. [Vandermeer] may not be a particularly good candidate for psychotherapy as she is both defensive, lacks insight, and it is unlikely to acknowledge shortcomings are challenges.... Nevertheless, Ms. [Vandermeer] would benefit from ongoing counseling to help her further develop a sense of her own self, facilitate emotional maturity, build interpersonal and self-soothing skills, as well as improving social judgment. Treatment should focus on both development of improved object relations as well as concrete coping and self-soothing skills.
¶ 19 Based on Dr. Freedman's evaluation, Vandermeer began individual counseling sessions with Lynne Springer in February 2008. The counseling focused on two goals: (1) helping her "gain insight with regard to her self-esteem" and learn how to set "appropriate boundaries;" and (2) learn the difference between "healthy and unhealthy relationships, and how these two specifically relate to the well-being of both herself and her children."
¶ 20 In April 2008, Springer reported Vandermeer was actively engaged in counseling sessions with her at New Beginnings. Springer states that Vandermeer had gained insight, recognized her strengths, and completed the goal of learning about unhealthy relationships. Springer noted Vandermeer's many strengths, including a strong work history and desire to get B.R. and T.V. back. Springer expressed some concern about Renfro continuing to make unwanted contacts with Vandermeer. But Springer stated that Vandermeer "is ready to move toward unsupervised overnight visits."
¶ 21 In August 2008, DSHS placed B.R. and T.V. with a foster family in the Tri-Cities area.[4] At first, Vandermeer had difficulty spending time with the children because of the expense of travelling from her home in Everett. However, after DSHS agreed to pay expenses, she was able to resume regular visits with B.R. and T.V.
¶ 22 In September 2008, Springer issued a final counseling report stating that Vandermeer had completed the counseling goals during a total of 12 sessions. In the final report, Springer describes Vandermeer's strengths, her love and concern for B.R. and T.V., and her "strong desire to bring them home to her care once again as soon as possible."
[Vandermeer] has many strengths such as being one of the only children in her large family to graduate from high school and remaining substance abuse free; she has consistently worked; she is perseverant, well mannered, considerate, articulate and smart; and she appears to be a caring parent who wants to teach and nurture her boys.
Throughout the duration of this counseling intervention, [Vandermeer] has professed her great love and concern for her two [children, B.R. and T.V.], and has maintained her strong desire to bring them home to her care once again as soon as possible. It is my belief that she would not be a danger to her two young [children] in terms of neglect or abuse.
¶ 23 Springer also states that there "continues to be a concern about the choices in relationships [Vandermeer] appears to continue to make despite this intervention, and therefore her current ability to keep her children safe and to nurture their optimal development." But Springer did not recommend further individual counseling. Instead, Springer recommended that Vandermeer continue to attend a support group for victims of domestic violence to "ensure the safety and well-being of her two young children as well as for her own continued positive growth and development."
*1125 [Vandermeer] is a smart young woman, and I have faith that she can achieve what she needs to achieve in order to get her two young [children] returned to her care if she puts her mind to it, by: 1) more confidently using the strengths and skills she already has within her; 2) actively embrace and utilize the skills she has learned in this counseling intervention; 3) complete the above recommendations; and 4) given her lack of healthy family and/or peer supports, [Vandermeer] will need to develop other positive relationships, such as through a support group for example a single parents group, a young women in transition group, or a church group, to support and encourage her as she moves forward in order to increase her likelihood of success.
¶ 24 On January 7, 2009, DSHS filed a petition to terminate parental rights to B.R. and T.V.[5] The petition describes the injury to B.R. in 2005 and the procedural history of the dependencies. DSHS alleged Vandermeer and Renfro were expressly offered or provided all necessary services capable of correcting parental deficiencies and "[t]he parents have failed to substantially improve parental deficiencies within twelve months following entry of the dispositional order."
¶ 25 At the request of DSHS, Dr. Freedman reviewed a number of documents to determine whether to update his evaluation of Vandermeer before trial. The documents Dr. Freedman reviewed included letters of compliance from the battered women treatment program, the final report from Springer, and a recent declaration of the DSHS caseworker. Based on his review of the information provided by DSHS, Dr. Freedman concluded there was "no need to re-interview or complete an addendum to the evaluation" because "[a]ny clinical conclusions or treatment recommendations would remain the same."
¶ 26 The two-day termination trial began on June 8. At the beginning of trial, Renfro voluntarily relinquished his parental rights to B.R. and T.V. DSHS called a number of witnesses, including Dr. Freedman, Springer, and the DSHS caseworkers. Vandermeer testified. Several visitation supervisors and a public defense social worker also testified on her behalf.
¶ 27 There was no dispute at trial that Vandermeer engaged in all court-ordered services. She completed the psychological evaluation with Dr. Freedman, followed all treatment recommendations by engaging in individual counseling with Springer, and attended approximately 40 to 50 domestic violence support group sessions. Throughout the dependency, Vandermeer also worked full time and paid child support to DSHS.
¶ 28 Furthermore, there was no dispute that when Vandermeer had custody of the children from March 2006 to May 2007, she exhibited excellent parenting skills and was able to protect her children from harm. And when the children were in foster care, Vandermeer regularly spent time with them and continued to exhibit excellent parenting skills. For example, the DSHS caseworker testified that:
She absolutely loves and adores her children. That's without question. I can see that. She's interested in them and what they're doing and how they're doing, and kind of on their level, like, What did you do today? Those sorts of things. And she gets involved with them. So she will bring activities and things to the visits. So she takes care of kind of their basic needs.
¶ 29 The DSHS caseworker also testified that Vandermeer had not had any contact with Schnebly since August 2006, and that she was unaware of any acts of domestic violence towards Vandermeer during the dependency. DSHS introduced evidence of Renfro's prior convictions for domestic violence. The testimony established that the most recent domestic violence conviction was against Renfro's current wife in March 2009.
¶ 30 Vandermeer testified that at first she did not believe Schnebly harmed B.R., and that he was never violent towards her. Vandermeer said that after learning that Schnebly injured B.R., she only saw Schnebly the one time when she attended his mother's funeral in August 2006.
*1126 ¶ 31 Vandermeer testified that Renfro never physically harmed B.R. or T.V. and he had not abused her since shortly before B.R. was born in 2003. Vandermeer admitted having contact with Renfro in 2008, and that she had sex with him in November 2008, resulting in her third pregnancy. But Vandermeer said that Renfro's recent conviction for assaulting his wife convinced her that he would not change. Vandermeer testified that she had taken steps to avoid any contact with Renfro, including obtaining a new phone number and living at an undisclosed location.
¶ 32 The court ordered termination of Vandermeer's parental rights to B.R. and T.V. The trial court identified the central issue as "the mother's decisions relating to relationships with abusive partners." The court found that "[d]espite the extensive services the mother completed, the mother has not changed her decision making with respect to men," and no other services were available that were capable of correcting her parental deficiencies in the near future. Vandermeer appeals.[6]
ANALYSIS
¶ 33 Vandermeer contends clear, cogent, and convincing evidence does not support the trial court's finding that she is currently unfit to parent, that there are no other services available capable of correcting her parental deficiencies within the foreseeable future, or that there is little likelihood conditions would be remedied so that the children could be returned to her in the near future.
¶ 34 It is well established that parents have a fundamental liberty and property interest in the care and custody of their children. U.S. Const. amends. V, XIV; Wash. Const. art. I, § 3; Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Custody of Smith, 137 Wash.2d 1, 27, 969 P.2d 21 (1998). The State may interfere with a parent's constitutional due process right "only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved." Smith, 137 Wash.2d at 15, 969 P.2d 21. In a termination proceeding, the State has a compelling interest to prevent harm to children and has an obligation to intervene and protect a child from harm or risk of harm. Santosky, 455 U.S. at 766, 102 S.Ct. 1388. "[W]hen parental actions or decisions seriously conflict with the physical or mental health of the child, the State has a parens patriae right and responsibility to intervene to protect the child." In re Sumey, 94 Wash.2d 757, 762, 621 P.2d 108 (1980).
¶ 35 To terminate a parent-child relationship, DSHS must establish the six statutory elements set forth in RCW 13.34.180(1) by clear, cogent, and convincing evidence. RCW 13.34.180(1) provides:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant to RCW 13.34.130;
(c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;
(d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future ....; and
(f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.
Evidence is clear, cogent, and convincing "when the ultimate fact in issue is shown by the evidence to be `highly probable.'" In re Dependency of K.R., 128 Wash.2d 129, 141, 904 P.2d 1132 (1995) (quoting In re Welfare of Sego, 82 Wash.2d at 736, 739, 513 P.2d 831 (1973)). If DSHS proves the six statutory elements, the court must also consider *1127 whether termination is in the best interest of the child. RCW 13.34.190(1)(a), (2). Whether termination is in the best interest of the child must be shown by a preponderance of the evidence. In re Dependency of A.M., 106 Wash.App. 123, 131, 22 P.3d 828 (2001).
¶ 36 We review the record to determine whether substantial evidence supports the findings, which in turn establish the statutory factors and support the decision to terminate. In re Dependency of K.S.C., 137 Wash.2d 918, 925, 976 P.2d 113 (1999). Unchallenged findings are verities on appeal. In re Interest of J.F., 109 Wash.App. 718, 722, 37 P.3d 1227 (2001).
¶ 37 Vandermeer asserts clear, cogent, and convincing evidence does not support the trial court's determination that she is currently unfit to parent. Vandermeer contends that because DSHS did not prove current parental unfitness, the decision to terminate her parental rights to B.R. and T.V., must be reversed.
¶ 38 In a recent decision, In re Welfare of A.B., 168 Wash.2d 908, 232 P.3d 1104 (2010), our Supreme Court held that the trial court must make an explicit finding that the parent is currently unfit. If there is no explicit finding of current parental unfitness, the court held that:
the appellate court can imply or infer the omitted finding ifbut only ifall the facts and circumstances clearly demonstrate that the omitted finding was actually intended, and thus made, by the trial court.
A.B., 168 Wash.2d at 921, 232 P.3d 1104.
¶ 39 Here, the trial court appears to have explicitly identified Vandermeer's parental deficiency as an inability to set limits with abusive partners: "Letitia Vandermeer is not currently available for the children and will not be a parenting resource in the foreseeable future." In reaching the conclusion that Vandermeer was currently unfit, the trial court expressly relied on Dr. Freedman's testimony at trial that "little had changed" with respect to her ability to set limits with male partners.
¶ 40 Dr. Freedman testified that, based on his psychological evaluation of Vandermeer in January 2008, her relationships with men were a potential risk to her children and that despite her participation in "all of the treatment he recommended, little had changed with respect to [her] abilities to set limits with male partners."
¶ 41 The trial court's findings state, in pertinent part:
1.22. The mother completed a psychological evaluation on November 29, 2007, with Evan B. Freedman, Ph.D. Dr. Freedman opined in his January 2008 report that `given Ms. [Vandermeer]'s history and personality configuration, she will have difficulty setting limits with romantic partners and a tendency to affiliate with potentially negative or abusive partners. It is hoped that through therapy and support Ms. [Vandermeer] will be better able to manage these kinds of relationships.' Dr. Freedman recommended the mother participate in counseling, and victim/survivor's domestic violence treatment. At trial, Dr. Freedman noted that while Ms. Vandermeer had participated in all of the treatment he recommended, little had changed with respect to Ms. Vandermeer's abilities to set limits with male partners.
1.23. There are no other services available, not previously offered or provided, which are capable of correcting ... Vandermeer's parental deficiencies within the foreseeable future.
...
1.26. There is no dispute about the mother's parenting skills. The testimony of all witnesses who observed her interactions with the [children] was positive. The mother does not have any problems parenting the children directly. The central issue was the mother's decisions relating to relationships with abusive partners.
1.27. Despite the extensive services the mother completed, the mother has not changed her decision making with respect to men. While the mother claims that she has learned how to set boundaries with men, her actions demonstrate otherwise.
The trial court also points to Springer's testimony that Vandermeer was unwilling to "cut *1128 off all contact" with Renfro. The trial court's findings state, in pertinent part:
1.28. Lynn Springer, the mother's counselor noted in her final counseling report in September 2008 that there `continues to be a concern about the choices in relationships [Vandermeer] appears to continue to make despite this intervention, and therefore her current ability to keep her children safe and to nurture their optimal development.' As an example, Ms. Springer cited the mother's inability or unwillingness to cut off all contact with the children's father, Andrew Renfro, or to set appropriate boundaries with him. Ms. Springer testified at trial that Mr. Renfro would call the mother's cell phone during their counseling sessions.
1.29. Ms. Springer counseled the mother extensively about her relationship with Mr. Renfro advising her to discontinue the relationship and set boundaries. Nevertheless, the mother continued to have a relationship with Mr. Renfro.
¶ 42 Accordingly, the trial court identifies the "central issue" as "the mother's decisions relating to relationships with abusive partners" in finding that Vandermeer "is not currently available for the children and will not be a parenting resource in the foreseeable future." Vandermeer contends clear, cogent, and convincing evidence does not support the current findings of parental unfitness. We agree.
¶ 43 The undisputed testimony at trial established that Vandermeer had not had any contact with Schnebly after attending his mother's funeral in August 2006. The testimony also shows that Schnebly did not abuse Vandermeer and that when they were living together, she had no reason to suspect he posed a threat to B.R. As to Renfro, the evidence shows that the last incident of domestic violence against Vandermeer took place shortly after B.R. was born in 2003, and contrary to the assertion by DSHS, there is no evidence in the record of domestic violence by Renfro against B.R. or T.V.
¶ 44 Vandermeer testified that the children were the victims of domestic violence based only on B.R.'s presence when Renfro verbally abused her when B.R. was a baby.
Q Do you consider yourself to be a victim of domestic violence?
A Yes.
...
Q How come?
A Because even though it wasn't like not physical stuff, there was still emotional, and I was yelled at and stuff thrown at me.
Q Do you consider the children to be victims of domestic violence?
A Yes.
Q Why?
A Because with [B.R., B.R.] was around when it happened.
Q Anything else? Just that he was around it?
A I don't know how to explain, but I know it does affect him, because he could hear it and stuff, and he knows when I'm upset. But [T.V.] hasn't really been around any of it.
...
Q Now, you were also asked earlier whether either of your children had been victims of domestic violence. As you think now, was there any incident that you left out when you responded to that question?
A Well, [B.R.] I know has been for sure.
Q Perpetrated by?
A Destry. And then Andrew in the beginning when he was a couple months old.
...
Q Was Mr. Renfro ever violent towards [B.R.] when the two of you were together?
A Not towards [B.R.], but it wasthe last incident with me was when [B.R.] was a baby.
¶ 45 As previously noted, the undisputed evidence also establishes that Vandermeer followed all treatment recommendations, engaged in all court-ordered services, and had taken steps to set boundaries and end her relationship with Renfro. Vandermeer testified that after the recent incident of Renfro's domestic violence against his spouse, Vandermeer *1129 realized he would not change and refused to get back together with him. Vandermeer took steps to prevent Renfro from contacting her by obtaining a new cell phone number and moving to an undisclosed location.
Q Had drinking been a problem for him in the past?
A It has, but I wasn't aware of any recent problems.
Q Okay. Now, did Mr. Renfro ask you to resume a relationship with him?
A Yeah. He said that he wanted us to be back together and work on doing things for the kids together. But I told him that I was already doing what I needed to do, and if we got back together, it wouldn't work because he wasn't following his services.
Q Okay. Now, was there any point where you realized that, although there appeared to have been changes in the way that Mr. Renfro conducted himself
A In March when he got out of jail for the domestic violence with his wife.
Q What did that tell you?
A That there was still problems. Because he came init was a couple days after he got out of jail he came into Safeway and he told me about it, and then he was asking me if he could stay with me, and I said no, that's not going to work. So that right there showed, even though he hasn't had any domestic violence recent with me, then that showed me that he didn't change.
Q Okay. And what does that mean to you about the possibility of you ever resuming a relationship?
A That he's still not safe to be around, and instead of his wife, it could have been me.
Q Okay. So you realize now that he would be an inappropriate partner for you?
A Yeah.
¶ 46 Because neither Dr. Freedman nor Springer had current information about the steps Vandermeer had taken to address relationships with potentially abusive partners, the trial court's reliance on their testimony is misplaced. There is no dispute that both Dr. Freedman and Springer last saw Vandermeer in 2008. When asked about Vandermeer's current ability to set limits, Dr. Freedman testified that his conclusion was based solely on the current documentation provided by DSHS.
Q Do you have an opinion as to whether the recommendation that you made for counseling and DV treatment had any impact or effect on the mother's ability to set boundaries in relationships and prioritize the needs of her children over her own and that sort of thing?
A My conclusions about that would be primarily based on reading the perceptions and assessments of others ... it seemed like little had changed since the time that I completed my evaluation. And considering how much treatment had occurred, I would have expected there to be a little bit more awareness and change in behavior.
...
Q Do you have an opinion as to the mother's present ability to be a safe parent to the [children]?
A I have to hedge my opinion, again, because I did not formally assess her parental capacity, so my conclusions about her potential to parent and risks to children in her care are based on my understanding of her psychological function. But that said ... my biggest concern is the ongoingapparently ongoing history of difficulty setting limits with men in her life whichwho may put the children or herself at risk. And I suppose that concern is made more critical by the fact that there has been a variety of different attempts at treatment and support, and there have also beenthere's also been the fact of the return of her children sort of is hanging in the balance, and yet change hasn't occurred and these issues have continued.
Q So do you believe she's presently able to safely parent, based on what you know?
*1130 A I'm uncomfortable answering the question in part because I haven't directly assessed that, and I would answer by saying, you know, in a vacuum, without other people and a broader context, perhapsI mean, there's no evidence to suggest that she herself abused her children or did them direct harm. However, people don't parent in a vacuum and have to parent in a context. And so while I'm uncomfortable making specific recommendations or observations about her as a parent, I can speak to the risk that I see from allowing men into her life who could potentially hurt the children if they were to be in her care.
But Dr. Freedman's conclusion that "little had changed with respect to Ms. Vandermeer's abilities to set limits with male partners" was based in part on the recent declaration of the DSHS caseworker that was excluded at trial. And on cross examination, Dr. Freedman also admitted that if Vandermeer had in fact resolved not to have any contact with Renfro, "I would laude [sic] that insight. I would, however, be concerned that the best indicator of ... future behavior is past behavior and so I would leave it at that."
¶ 47 This case is not like In re Dependency of S.M.H., 128 Wash.App. 45, 115 P.3d 990 (2005), where the mother was unwilling or unable to appreciate the significant risks her relationship with the father posed to the children and no additional services would make her see the danger posed by the father. S.M.H., 128 Wash.App. at 55, 115 P.3d 990.
¶ 48 Here, unlike in S.M.H., Vandermeer complied with all court-ordered services and participated in counseling and support groups for victims of domestic violence. During counseling and at trial, Vandermeer acknowledged the danger posed by Schnebly, recognized the need to extricate herself from her relationship with Renfro, and took steps that demonstrated she could set boundaries and protect her children from harm.
¶ 49 While it is undisputed that the foreseeable future for B.R. and T.V. is less than one year, clear, cogent, and convincing evidence does not support the conclusion that Vandermeer is unable to address the only identified parental deficiency within the foreseeable future.
¶ 50 Because DSHS has not met its burden of establishing current parental unfitness by clear, cogent, and convincing evidence, we reverse the order terminating Vandermeer's parental rights to B.R. and T.V.
WE CONCUR: SPEARMAN and BECKER, JJ.
NOTES
[1] We grant Vandermeer's motion to strike all references in the DSHS brief to the December 12, 2007 Commissioner's Ruling. See In re Welfare of Martin, 3 Wash.App. 405, 411-12, 476 P.2d 134 (1970).
[2] Vandermeer testified that Renfro had been drinking and forced her to have sexual intercourse with him.
[3] The court also found T.V. dependent as to Renfro, who did not respond to the dependency petition.
[4] During the dependency, B.R. and T.V. were placed in multiple foster homes.
[5] The termination petition as to T.V. is not in the record.
[6] We granted the motion of Legal Voice to file an amicus brief in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1356941/ | 592 F.3d 1027 (2010)
Debbie DONOHUE, and all other similarly situated persons, Plaintiff-Appellant,
v.
QUICK COLLECT, INC., an Oregon Corporation, Defendant-Appellee.
No. 09-35183.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 10, 2009.
Filed January 13, 2010.
*1028 Michael J. Beyer (argued), Spokane, WA, for plaintiff-appellant Debbie Donohue and all other similarly situated persons.
Christopher J. Kerley (argued), Evans, Craven & Lackie, P.S., Spokane, WA, for defendant-appellee Quick Collect, Inc.
Before: RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges, and ROGER T. BENITEZ,[*] District Judge.
GOULD, Circuit Judge:
Debbie Donohue appeals the district court's order denying her motions and granting summary judgment to Quick Collect, Inc. ("Quick Collect") dismissing all of her claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*1029 I
Donohue was a customer of a pediatric dental practice called the Children's Choice ("Children's Choice") located in Spokane, Washington. Children's Choice has an "Office Financial Policy" outlining customers' payment obligations, which Donohue signed in 2003. The policy states, in pertinent part, as follows: "I understand that all services are due to be paid in full within ninety (90) days of date of service.... A finance charge of 1-1/2 % per month will be applied to all accounts over 90 days...."
In October 2007, Children's Choice assigned to Quick Collect, a collection service incorporated in Oregon, the principal and finance charges Donohue owed to Children's Choice. Upon receipt of the assignment, Quick Collect mailed a formal demand letter to Donohue seeking $270.99 in "principal," $24.07 in "assigned interest," and $2.23 in "post assigned interest." Quick Collect did not immediately receive a response from Donohue and referred the matter to attorney Gregory Nielson to commence litigation to collect the amounts due.
In January 2008, Quick Collect brought an action against Donohue and Donohue was served with a summons and complaint (the "Complaint"). The Complaint stated that Quick Collect sought a judgment against Donohue for, among other amounts, "the sum of $270.99, together with interest thereon of 12% per annum... in the amount of $32.89." In February 2008, Nielson, on behalf of Quick Collect, sent another demand letter to Donohue (the "Nielson Demand Letter"). The Nielsen Demand Letter stated that Donohue owed, in addition to litigation-related costs, $270.99 for "Principal," and $35.57 for "Interest."
In April 2008, Donohue filed a class-action lawsuit in Washington state court against Quick Collect. Donohue brought the following two federal claims: (1) Quick Collect violated the Fair Debt Collection Practices Act ("FDCPA") by charging a usurious rate of interesti.e., the Complaint and the Nielsen Demand Letter sought annual interest above 12%, the maximum permitted under Washington law; and (2) Quick Collect violated the FDCPA's prohibition against the use of false, deceptive, or misleading statements in connection with collecting a debt by "misrepresenting the amount of interest"i.e., the Complaint incorrectly stated that $32.89 was "interest [on the principal] of 12% per annum." Donohue also alleged violations of Washington state law arising out of the same events.
The action was removed to the United States District Court for the Eastern District of Washington and Quick Collect moved for summary judgment on all of Donohue's claims. Donohue thereafter cross-moved for partial summary judgment as to Quick Collect's liability, moved to certify the class, and moved to strike Quick Collect's motion for summary judgment.
Faced with these conflicting motions, on December 31, 2008, the district court granted summary judgment to Quick Collect dismissing Donohue's claims, and denied Donohue's motions. The district court concluded as follows as to Donohue's two FDCPA claims: (1) Quick Collect, through the Complaint and the Nielsen Demand Letter, did not charge a usurious interest rate and so did not violate the FDCPA; and (2) the Complaint accurately set forth the total sum Donohue owed and was not false, deceptive, or misleading under the FDCPA. Because Quick Collect did not violate the FDCPA, the district court concluded that Donohue could not succeed on her state-law claims either. Donohue timely appeals.
*1030 II
We review de novo the district court's interpretation of the FDCPA and its rulings on cross-motions for summary judgment. See Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1168 (9th Cir.2006). Seeking somewhat to level the playing field between debtors and debt collectors, the FDCPA prohibits debt collectors "from making false or misleading representations and from engaging in various abusive and unfair practices." Heintz v. Jenkins, 514 U.S. 291, 292, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995). The FDCPA is a strict liability statute that "makes debt collectors liable for violations that are not knowing or intentional." Reichert v. Nat'l Credit Sys., Inc., 531 F.3d 1002, 1005 (9th Cir.2008).
The two FDCPA provisions at issue in this case are 15 U.S.C. §§ 1692e and 1692f. Section 1692e prohibits the use by a debt collector of "any false, deceptive, or misleading representation or means in connection with the collection of any debt." Section 1692e(2) prohibits "[t]he false representation of ... the character, amount, or legal status of any debt." Section 1692f prohibits a debt collector from using "unfair or unconscionable means to collect or attempt to collect any debt." "The collection of any amount ... unless such amount is expressly authorized by the agreement creating the debt or permitted by law" is a violation of § 1692f(1). Whether conduct violates §§ 1692e or 1692f requires an objective analysis that takes into account whether "the least sophisticated debtor would likely be misled by a communication." See Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir.2007) (internal quotation marks omitted).
A
First, Donohue claims that Quick Collect, through the Nielsen Demand Letter and the Complaint, violated the FDCPAin particular §§ 1692e and 1692fby charging more than 12% annual interest in contravention of Washington usury law. Washington law prohibits charging more than 12% annual interest "for the loan or forbearance of any money, goods, or things in action." Wash. Rev. Code § 19.52.020. Donohue calculates that the Nielsen Demand Letter sought an interest payment of $35.57 for a period of 289 days, for an effective annual interest rate of 16.6%, and that the Complaint sought an interest payment of $32.89 for a period of 259 days, for an effective annual interest rate of 17.1%.
Quick Collect contends that these so-called interest amounts in the Nielsen Demand Letter and the Complaint are largely comprised of pre-assignment finance charges assessed by Children's Choice, and that the assessment by Children's Choice of the finance charges to Donohue's overdue account does not implicate the usury statute because there is no loan or forbearance under Washington law. Quick Collect argues that, setting aside those finance charges, the interest it charged did not exceed 12%. Donohue replies that, under Children's Choice's Office Financial Policy, the ninety-day "grace period" during which payment is due before a finance charge is applied is consistent with a forbearance and therefore the finance charges must be considered interest. Whether Quick Collect charged a usurious interest rate, therefore, turns on whether or not the finance charges assessed by Children's Choice pursuant to its Office Financial Policy constitute a forbearance under Washington law.
The leading Washington State Supreme Court case on the definition of forbearance under Washington law is Whitaker v. Spiegel Inc., 95 Wash.2d 408, 623 P.2d 1147, 1149 (1981), which concerned a financial arrangement between consumers and a *1031 mail-order retailer called a "revolving charge account." After consumers made an initial purchase, the purchase price of subsequently purchased items, if there was an unpaid balance, would be added to the existing balance as one account. Id. The Whitaker court defined a forbearance as "a contractual obligation of a lender or creditor to refrain, during a given period of time, from requiring the borrower or debtor to pay a loan or debt then due and payable." Id. at 1152 (quoting Hafer v. Spaeth, 22 Wash.2d 378, 156 P.2d 408, 411 (1945)). The Washington State Supreme Court applied this definition and concluded that the revolving charge account was a forbearance:
The relationship between the respondents and appellant is clearly that of debtor and creditor. Respondents are indebted to appellant upon delivery of the goods and acceptance of them. Appellant, by its credit agreement, has agreed to refrain from immediately requiring respondents or any other debtors to pay their debts. In return, respondents have agreed to pay a constant service charge percentage which is applied against a changeable balance.
Id.
The reasoning of Whitaker makes clear that Children's Choice's payment arrangement, unlike a revolving charge account such as was considered in Whitaker, does not constitute a forbearance under Washington law. Children's Choice did not have a contractual obligation to "refrain, during a given period of time, from requiring [Donohue] to pay a loan or debt then due and payable." Id. (emphasis added). Instead, payment was "due to be paid in full within ninety (90) days of service." Children's Choice was free to enforce the requirement of payment any time after the ninety days in which payment was finally due. Donohue notes that Washington law requires that courts "look through the form of the transaction and consider its substance." Id. But the substance here is late fees assessed to encourage timely paymentChildren's Choice did not agree to forbear requiring payment from Donohue on her past-due account in exchange for exacting a fee nominally called a "finance charge." We conclude that Children's Choice's assessment of finance charges under these circumstances was not a forbearance. Therefore, Quick Collect did not charge usurious interest in the Complaint or in the Nielsen Demand Letter, and Donohue's FDCPA claim founded on Quick Collect charging a usurious interest rate cannot succeed.
B
Second, Donohue claims the Complaint violated the FDCPA because it contained a false, deceptive, or misleading representation, in particular, a false representation concerning the character of the debt that Donohue owed. See 15 U.S.C. § 1692e. The Complaint stated that Donohue owed an interest payment of $32.89 calculated by applying 12% annual interest to the principal owed. That statement is not entirely accurate. $32.89 is actually comprised of two components: $24.07 in pre-assignment finance charges assessed by Children's Choice and calculated at the rate of 1.5% per month, and $8.82 in post-assignment interest calculated at an annual rate of 12%.
As a preliminary matter, Quick Collect suggests that a complaint is not a communication subject to the requirements of §§ 1692e and 1692f. The authority Quick Collect provides for this proposition is Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470 (7th Cir.2007). But the Seventh Circuit in Beler did not decide this issue and, instead, stated, "We postpone to some future case, where the answer matters, the decision whether § 1692e covers the process of litigation." Id. at 473. We decide this issue and conclude that a complaint served directly on a *1032 consumer to facilitate debt-collection efforts is a communication subject to the requirements of §§ 1692e and 1692f.
Concluding otherwise would put our decision in tension with the Supreme Court's reasoning in Heintz. In Heintz, Darlene Jenkins defaulted on a loan from a bank. 514 U.S. at 293, 115 S. Ct. 1489. A lawyer from the bank's law firm, George Heintz, wrote a letter to Jenkins's lawyer listing an amount that Jenkins purportedly owed. Id. Jenkins sued Heintz under §§ 1692e(2) and 1692f. Id. Heintz contested the applicability of the FDCPA to his debt-collection efforts because he was a lawyer engaged in litigation. Id. at 295. The Supreme Court held that the FDCPA "applies to attorneys who `regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Id. at 299, 115 S. Ct. 1489. The Supreme Court reasoned that "the plain language of the [FDCPA] itself says nothing about" an "exemption [for lawyers] in respect to litigation." Id. at 297, 115 S. Ct. 1489. Nor did it make sense to differentiate between lawyers acting in the capacity of debt collectors and those litigating: "The line ... between `legal' activities and `debt collection' activities was not necessarily apparent to those who debated the legislation, for litigating, at first blush, seems simply one way of collecting a debt." Id.
We have recognized a limited exception to this rule. In Guerrero, we concluded that communications sent only to a debtor's attorney are not actionable under the FDCPA. 499 F.3d at 935-36. We reasoned that Heintz only addressed the question of whether the FDCPA applies to lawyers collecting debts through litigation, but Heintz did not address how the identity of the recipient of the communication impacts FDCPA liability. Id. at 937-38. When the recipient of the communication is solely a debtor's attorney, the FDCPA's purpose of protecting unsophisticated consumers is not implicated. Id. at 939. Thus, we there concluded that a letter directed "to counsel, and not to his client `the consumer'was not a prohibited collection effort." Id. at 934. But the limited exception that we outlined in Guerrero is inapplicable here. Donohue was personally served with the Complaint. Therefore, Donohue herself, not her lawyer, was the recipient of the communication. Because the complaint was communicated to the consumer, the requirements of the FDCPA apply.
While the communication at issue in Heintz was a letter, not a legal pleading as here, the logic of Heintz controls our analysis. Quick Collect caused Donohue to be served with the Complaint to further Quick Collect's effort to collect the debt through litigation. The Supreme Court in Heintz stated clearly that the FDCPA "applies to attorneys who `regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." 514 U.S. at 299, 115 S. Ct. 1489 (emphasis added). To limit the litigation activities that may form the basis of FDCPA liability to exclude complaints served personally on consumers to facilitate debt collection, the very act that formally commences such a litigation, would require a nonsensical narrowing of the common understanding of the word "litigation" that we decline to adopt.[1]
*1033 Turning to the merits, we conclude that the Complaint did not violate §§ 1692e or 1692f. The Complaint correctly calculated the total debt Donohue owed, accurately stated the principal owed, and accurately listed the total non-principal amount owed inclusive of interest and finance charges. The Complaint sought recovery of sums to which Quick Collect was clearly and lawfully entitled, including $270.99 in principal, $24.07 in late fees assessed pursuant to Children's Choice's Office Financial Policy signed by Donohue, and $8.82 in interest assessed at a lawful rate. The Complaint did not contain a false, deceptive, or misleading representation for purposes of liability under §§ 1692e or 1692f just because $32.89, labeled as 12% interest on principal, was actually comprised of finance charges of $24.07 and post-assignment interest of $8.82, but not labeled as such.
In Hahn v. Triumph Partnerships LLC, 557 F.3d 755 (7th Cir.2009), Chief Judge Easterbrook concluded for a panel of the Seventh Circuit that a false or misleading statement is not actionable under § 1692e unless it is material. With reasoning that we consider persuasive, Chief Judge Easterbrook observed that "[m]ateriality is an ordinary element of any federal claim based on a false or misleading statement." Id. at 757 (citing Carter v. United States, 530 U.S. 255, 120 S. Ct. 2159, 147 L. Ed. 2d 203 (2000); Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). There is no "reason why materiality should not equally be required in an action based on § 1692e." Id. The purpose of the FDCPA, "to provide information that helps consumers to choose intelligently," would not be furthered by creating liability as to immaterial information because "by definition immaterial information neither contributes to that objective (if the statement is correct) nor undermines it (if the statement is incorrect)." Id. at 757-58. The Seventh Circuit framed materiality as a corollary to the well-established proposition that "[i]f a statement would not mislead the unsophisticated consumer, it does not violate the [Act]even if it is false in some technical sense." Id. at 758 (quoting Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 646 (7th Cir.2009) (alterations in original)). Thus, "A statement cannot mislead unless it is material, so a false but non-material statement is not actionable." Id. The Sixth Circuit has reached the same conclusion. See Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir.2009) (concluding that a false but non-material statement is not actionable under § 1692e).
We agree with the approach adopted by the Sixth and Seventh Circuits. We have consistently held that whether conduct violates §§ 1692e or 1692f requires an objective analysis that considers whether "the least sophisticated debtor would likely be misled by a communication." Guerrero, 499 F.3d at 934 (internal quotation marks omitted) (stating this standard applies to §§ 1692d, 1692e, and 1692f); see Wade v. Reg'l Credit Ass'n, 87 F.3d 1098, 1099-1100 (9th Cir.1996); Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1227 (9th Cir.1988). We now conclude that false but non-material representations are not likely to mislead the least sophisticated consumer and therefore are not actionable under §§ 1692e or 1692f.
Our conclusion is in harmony with our recognition in Clark that "the remedial nature of the [FDCPA] ... requires us to *1034 interpret it liberally." 460 F.3d at 1176. We noted in Clark that the FDCPA's remedial purpose is animated by "the likely effect of various collection practices on the minds of unsophisticated debtors." Id. at 1179. But immaterial statements, by definition, do not affect a consumer's ability to make intelligent decisions. See Hahn, 557 F.3d at 757-58. We recognize, as the Seventh Circuit already has, that the materiality requirement functions as a corollary inquiry into whether a statement is likely to mislead an unsophisticated consumer. The materiality inquiry focuses our analysis on the same ends that concerned us in Clarkprotecting consumers from misleading debt-collection practices.
Applying this standard to the statement at issue in the Complaint, we conclude that it is immaterial and not actionable under §§ 1692e or 1692f. We agree with the reasoning in Hahn, in which Chief Judge Easterbrook concluded, under analogous facts, that the statement at issue there was immaterial. Id. at 757. In Hahn, a demand letter stated that Marylou Hahn owed $1,134.55, of which $1,051.91 was the "amount due" and of which $82.64 was "interest due." Id. at 756. Hahn argued that the letter contained a false representation concerning the character of the debt in violation of § 1692e. The total owed was conceded to be accurate, but the labels for the two sums comprising the total debt were technically incorrect: $82.64, labeled "interest," included only post-assignment interest, and $1,051.91, labeled "amount due," included pre-assignment interest and principal. Id. Similarly, here, the total owed was accurately stated in the Complaint, but the label for at least one of the two sums comprising the total debt was technically incorrect: $32.89, labeled "interest... of 12%," included pre-assignment finance charges and interest. In Hahn, the Seventh Circuit concluded that mislabeling a sum "interest" when it included only part of the interest owed, and mislabeling a sum "amount due" when it included both principal and interest, was not a materially false characterization of the debt. Chief Judge Easterbrook explained that "[a]pplying an incorrect rate of interest would lead to a real injury" but "reporting interest in one line item rather than another (or in two line items) harms no one and ... may well assist some people." Id. at 757. We conclude, consistent with Hahn, that the Complaint's mislabeling $32.89 as 12% interest, when $32.89 included both interest and pre-assignment finance charges, is not materially false.
The reason for applying the materiality requirement is also implicated by the facts of this case. In assessing FDCPA liability, we are not concerned with mere technical falsehoods that mislead no one, but instead with genuinely misleading statements that may frustrate a consumer's ability to intelligently choose his or her response. See id. Here, the statement in the Complaint did not undermine Donohue's ability to intelligently choose her action concerning her debt. Based on the information in the Complaint, Donohue could have challenged the accuracy or legality of the total debt and principal owed, futile as that may have been, or Donohue could have paid the accurately stated sum to settle her debt. Even if the Complaint had separated $32.89 into interest and finance charges, we can conceive of no action Donohue could have taken that was not already available to her on the basis of the information in the Complaintnor has Donohue articulated any different action she might have chosen. Therefore, we conclude that the statement in the Complaint was not material and hence not actionable under §§ 1692e and 1692f.
C
Donohue concedes that her state-law claims "are totally predicated upon the *1035 court finding a violation of the FDCPA." We have concluded that Quick Collect did not violate the FDCPA. Therefore, Donohue cannot prevail on her state-law claims either.
III
We affirm the district court's order granting summary judgment to Quick Collect, denying Donohue's motion for summary judgment, and denying Donohue's motion to strike Quick Collect's motion for summary judgment. We also affirm the district court's denial of Donohue's motion for class certification as moot.
AFFIRMED.
NOTES
[*] The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation.
[1] Quick Collect suggests that a complaint, because it can be corrected by amending the offending pleading, should not constitute an actionable communication. But all communications can be "amended" in this way by simply sending out a subsequent communication correcting the error. Sections 1692e and 1692f do not suggest that otherwise unlawful representations are permitted so long as they are followed up, at some later time, with a communication correcting the statements that gave rise to the communication's unlawful nature. We see no reason to treat complaints differently where there was no effort to correct the error before an answer was filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1644161/ | 4 So. 3d 588 (2007)
STACEY MANNING
v.
STATE.
No. CR-05-2085.
Court of Criminal Appeals of Alabama.
January 12, 2007.
Decision of the alabama court of criminal appeals without opinion. Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264697/ | 744 A.2d 290 (1999)
COMMONWEALTH of Pennsylvania, Appellee,
v.
James WILSON, Appellant.
Superior Court of Pennsylvania.
Argued September 22, 1999.
Filed December 29, 1999.
Daniel M. Preminger, Philadelphia, for appellant.
Catherine Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee (submitted).
Before SCHILLER, OLSZEWSKI and BECK, JJ.
BECK, J.:
¶ 1 Is a defendant, who is in the position of a pretrial detainee and under house arrest, entitled to credit for time served outside of prison where his release was mandated by a federal court order? The trial court determined that appellant was not entitled to credit. After careful consideration of the applicable statute and relevant case law, we affirm.
¶ 2 In April of 1991, appellant was tried and convicted in absentia for a series of drug charges. In September of that year, he was apprehended and placed in prison. Counsel for appellant filed various post-trial submissions. Over two years later, in November of 1993, the trial court granted appellant a new trial, but imposed a $500,000.00 bail order, which appellant could not pay. Within thirty days of the trial court's order, the Commonwealth appealed the grant of a new trial to this court. At approximately the same time, appellant was released from prison due to a federal court order.[1] His release required that he *291 be placed on house arrest, a program with which he complied for a period of time.
¶ 3 In September of 1995, a panel of this court reversed the trial court's grant of a new trial. Appellant, still on home monitoring, filed an appeal to the supreme court. While awaiting the supreme court's decision, in October of 1996, appellant moved from his residence but failed to inform authorities of the move. His house arrest supervision ended on that date.[2] Despite the expiration of his house arrest status in late 1996, appellant continued to live in his home. In April of 1998, the supreme court affirmed that appellant was not entitled to a new trial. About six months later, in October 1998, appellant appeared in court to be sentenced.
¶ 4 The trial court imposed a four to eight year prison term. Appellant was credited for the time he spent in prison, i.e., September of 1991 through December of 1993. However, the trial court refused to grant him credit for the time he spent on house arrest or any time thereafter. On appeal, appellant claims he is entitled to credit for the time on house arrest (December, 1993 through October, 1996).[3]
¶ 5 We begin our analysis with a close reading of the statute. The statute states that only custodial time is creditable and provides:
[T]he court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending resolution of an appeal.
42 Pa.C.S.A. § 9760(1) (Purdons 1999) (emphasis supplied). See also Pa. R.Crim.P. 1406(b) (credit shall be provided for any days spent in custody).
¶ 6 Our courts consistently have interpreted the custodial time referred to in § 9760(1) as confinement in prison. See e.g., Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991); Commonwealth v. Blair, 699 A.2d 738 (Pa.Super.1997); Commonwealth v. Shartle, 438 Pa.Super. 403, 652 A.2d 874 (1995), appeal denied, 541 Pa. 637, 663 A.2d 690 (1995). Despite this fact, appellant relies on Kriston for relief.
¶ 7 The defendant in Kriston was sentenced to serve a 30-day mandatory prison term for his second DUI conviction. Contrary to law, prison authorities erroneously released him to a home-monitoring program. In doing so, they assured the defendant that this time would be credited toward his sentence. When the error was discovered, the defendant sought to have the time credited. Our supreme court held that credit was appropriate since assurances had been made to the defendant that he would be given credit. Id. at 96-98, 588 A.2d at 901. The court reached this conclusion while recognizing that a defendant is required to serve his sentence in a prison, not at home, and that a defendant on home monitoring is not entitled to credit for time served. Id.[4]
*292 ¶ 8 The Commonwealth argues that this case is not governed by Kriston, but by Blair, supra. Blair involved the release of a defendant on bail pending appeal. The matter was affirmed on appeal and the record was remanded to the trial court. At that point, in accordance with Pa.R.A.P. 1763, the trial court should have ordered the defendant to appear before it for sentencing, but it failed to do so. Two years passed before the court realized its error. When the defendant ultimately was sentenced, he requested credit for the time served. This court held he was not entitled to credit.
¶ 9 Recognizing that the defendant had not engineered his freedom, either by fleeing or concealing his identity once out on the street, the Blair court nonetheless held that the court system's error could not work to the defendant's benefit. Blair, supra, 699 A.2d at 743.[5] The Blair court emphasized that society had an interest in knowing that convicted criminals would be incapacitated.
¶ 10 In addition to Kriston and Blair, the Commonwealth also brings to our attention Shartle, supra. In that case, the defendant sought credit for her release, after arraignment and prior to trial, during which time she was on house arrest. Relying on Kriston's reasoning that "confinement to [one's] ... home was not the equivalent of time served in an institutional setting," the Shartle court ruled that credit was improper. Shartle, supra, 652 A.2d at 877.
¶ 11 After careful consideration of the facts in this case and the applicable law, we conclude that appellant is not entitled to credit for time served while on house arrest. The statute limits time served to time in custody. Custody has been strictly defined and does not include house arrest. Kriston, supra; Shartle, supra. The only precedent is found in the exception carved out in Kriston. That exception, however, was narrowly drawn and applied where the defendant was given assurances that he would be entitled to credit against his sentence for the period of home monitoring. In this case, appellant was given no such assurances.
¶ 12 Based on the controlling statute and case law, appellant is not entitled to credit for his period of time on house arrest. However, this case does present a novel question; that is, does the fact that appellant's house arrest was triggered by a federal court order compel a different result? We conclude that it cannot. The language of the statute, and the case law interpreting it, lead to the inevitable conclusion that home monitoring does not satisfy the mandate of confinement in prison unless the defendant is informed that credit will be given. Kriston, supra; Shartle, supra. Hence, credit in these circumstances is improper.[6]
*293 ¶ 13 We are aware that the overcrowded prison system in Philadelphia County and elsewhere presents a wide range of difficulties.[7] However, it is the role of the legislature and not the courts to decide whether non-violent offenders serving house arrest should receive credit against their sentences. As Justice Flaherty noted, "a cure for the problem of prison overcrowding... is properly within the legislative realm. This Court cannot intrude into the legislative realm to deal with the problem, by upholding home monitoring as a means of serving [prison time]...." Kriston, supra at 96, 588 A.2d at 901.
¶ 14 Judgment of sentence affirmed.
¶ 15 SCHILLER, J., files a Dissenting Statement.
SCHILLER, J., dissenting.
¶ 1 I respectfully dissent. Although I agree with the majority's view that home monitoring is not the equivalent of custody, it is, nevertheless, a significant curtailment of one's freedom. In my view, such a loss of liberty may not be imposed unless due process procedures have been met. Appellant, in this instance, was not afforded due process, and I believe credit must be awarded for the time he spent under home detention.
¶ 2 Appellant was in jail because he was unable to afford bail during the pendency of the Commonwealth's appeal. For each day spent in jail, he was entitled to an equivalent one-day reduction of any sentence subsequently imposed. However, those conditions were arbitrarily changed not once but twice: first, when pursuant to a federal court order, Appellant was placed on home monitoring, and next, when the trial court ruled that Appellant would not be given credit for the time spent under home detention. Thus, Appellant's sentence of four to eight years' imprisonment was increased by thirty-four months of home monitoring as a result of a federal order of which Appellant had no notice, the consequences of which were unknown to him and which he was given no opportunity to dispute. In my view, failure to give Appellant credit in these circumstances violates the principles of fundamental fairness underpinning our criminal justice system.[8]*294 ¶ 3 Moreover, I find this case more akin to Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991), where a defendant released in error to home monitoring was held to be entitled to credit based on assurances given by prison authorities, rather than to Commonwealth v. Blair, 699 A.2d 738 (Pa.Super.1997) where no credit was given to a defendant who through bureaucratic oversight remained free on bail for two years after his appeal was decided. Quite simply, the defendant in Blair had no expectation of accruing credit against his sentence nor did he suffer a loss of freedom. Appellant herein and the defendant in Kriston each reasonably expected that the limitations on their liberty imposed by home monitoring were to be compensated by credit against their sentences. I believe the distinguishing fact in each instance is not whether the defendant was given explicit or implicit assurances of credit, but whether he suffered a loss of liberty in the absence of procedural due process. Given the lack of due process here, I would award credit to Appellant for the time spent under home monitoring.
NOTES
[1] In a case titled Harris v. Reeves, U.S.Dist.Ct. E.D.Pa., 761 F.Supp. 382 (1991), the federal court, among other things, "limit[ed] the admission of pre-trial detainees [in Philadelphia County prisons] to those charged with violent crimes." Abraham v. Dept. of Corrections of Comm., 150 Pa.Cmwlth. 81, 615 A.2d 814 (1992), overruled on other grounds, Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898 (1996). The purpose of the order, commonly referred to as the "prison cap," was to relieve overcrowding in Philadelphia prisons. Appellant, apparently due to his status as a pre-trial detainee, was released while this court considered the trial court's grant of a new trial.
[2] It is unclear from the record whether appellant's house arrest status ended in October of 1996 or December of that year. In any event, appellant himself argues that December 29, 1993 (the date of his release under the federal court order) to October 12, 1996 (the date he moved without notification to authorities) constitutes the time period for which he should be awarded credit as a "house arrestee."
[3] Appellant also insists that he is entitled to credit for the time he spent out of custody without any home supervision (October 1996 through October 1998). Because we find that he is not entitled to credit for his period of home monitoring, we likewise find this claim without merit.
[4] Appellant also relies on Jacobs v. Robinson, 49 Pa.Cmwlth. 194, 410 A.2d 959 (1980). In Jacobs the defendant, after serving part of his sentence in jail, was released from prison as a result of a clerical error. The defendant was placed on probation. After authorities realized their mistake, they returned him to custody and denied him credit for his time on probation. The Commonwealth court disagreed and held that credit was appropriate. Without reference to statutory authority, the Jacobs court concluded that the defendant, who had not requested his release, was entitled to serve his sentence continuously, rather than in installments. Id. at 960. We are not bound by holdings of the Commonwealth Court. We are, however, bound by the holdings of our supreme court, which has stated unequivocally that time spent on a home monitoring program cannot be credited to one's prison sentence in the absence of a promise by authorities. Kriston, supra.
[5] The Blair court distinguished Kriston and Jacobs on several grounds. First, it observed that no assurances had been made to defendant Blair as had been made in Kriston. Second, it noted that defendant Blair had truly been at liberty during his release, not on probation, as in Jacobs, or on home monitoring, as in Kriston. Finally, the Blair court stated that unlike the defendant in Jacobs, the defendant in Blair was not being required to serve his sentence in installments, as he had not yet been sentenced for his crime when he was inadvertently released.
[6] The dissent relies on procedural due process in concluding that appellant is entitled to relief. However, appellant did not rely on due process either in the trial court or as a basis for this appeal. Hence, we cannot do so sua sponte. See Com., Dept. of Transportation v. Boros, 533 Pa. 214, 620 A.2d 1139, 1142-43 (1993)(Commonwealth Court did not have the power to consider statute as an affirmative defense where defendant failed to rely on same). See also Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961, 973 (1994)(observing the "well-settled legal rule that an appellate court may not raise a constitutional issue sua sponte"), appeal denied, 541 Pa. 632, 663 A.2d 685 (1995). Further, the case upon which the dissent relies is not grounded in due process. See Commonwealth v. Kriston (527 Pa. 90, 588 A.2d 898 (1991) (credit proper where failure to do so constitutes "manifest injustice")). Instead, Kriston explicitly states that home monitoring is not the equivalent of custody and thus cannot be considered as "time served." Id. at 97, 588 A.2d at 901 ("[I]t would grossly distort the language used by the legislature if we were to conclude that the term `imprisonment' means `merely staying at home.'") It was only because authorities in Kriston made assurances to the appellant that the court found credit was due:
Before entering the electronic home monitoring program, appellant was assured by prison authorities that time spent in the monitoring program would count towards his minimum sentence. Under these circumstances, denying appellant credit for time served in home monitoring would constitute a manifest injustice.
Id. (emphasis in original).
We agree that appellant and many Philadelphia inmates like him suffer a significant curtailment of their freedom as a result of the prison-overcrowding solutions in place in that county. We believe, however, that only the legislature, not the courts, can address the specific problem raised in this case.
[7] In 1992 our Commonwealth Court observed that, upon passage, the prison cap order mandated the release of some 600 prisoners, with approximately 90 more eligible each week thereafter. Abraham, supra at 816.
[8] "Procedural due process requires, at its core, adequate notice, opportunity to be heard, and the chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case." Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 1999 Pa. Lexis 2578 (1999), (citing Krupinski v. Vocational Technical School, 544 Pa. 58, 674 A.2d 683, 685 (1996)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750690/ | 650 So. 2d 1184 (1995)
BOES IRON WORKS, INC.
v.
SPARTAN BUILDING CORPORATION, Taylor Energy Company and Fidelity and Deposit Company of Maryland.
SPARTAN BUILDING CORPORATION
v.
BOES IRON WORKS, INC. et al.
No. 95-C-0103.
Supreme Court of Louisiana.
March 10, 1995.
Denied.
JOHNSON, J., not on panel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264702/ | 744 A.2d 1050 (2000)
2000 ME 11
Sean A.R. HAYNES, Personal Representative of the Estate of Bruce Jagoe
v.
Michael JACKSON.[1]
Supreme Judicial Court of Maine.
Submitted on Briefs November 30, 1999.
Decided January 24, 2000.
Francis M. Jackson, Jackson & MacNichol, Portland, for plaintiff.
Stacey Jackson, Limington, for defendant.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.
CLIFFORD, J.
[¶ 1] This is an appeal from a judgment entered in the Superior Court (Cumberland County, Delahanty, J.) in favor of Sean A.R. Haynes as personal representative of the estate of Bruce Jagoe and against Michael Jackson. The court rescinded a deed that Jackson had obtained from Jagoe and declared the deed "null and void ab initio" thereby vesting ownership of the property in Haynes in his capacity as Jagoe's personal representative. Jackson argues that the court erred in entering a summary judgment and in denying a motion to vacate the judgment. Because the motion to vacate the orders, the notice of appeal, and a supporting brief in this appeal, were filed by Michael Jackson's wife, Stacey Jackson, who is not an attorney and is not permitted to engage in the practice of law, we grant Haynes's motion to dismiss the appeal.
*1051 [¶ 2] In October of 1997, Haynes, in his capacity as personal representative of the estate of Bruce Jagoe, filed a complaint in the Superior Court alleging that Michael Jackson had breached the terms of a land sale contract between Jackson and Jagoe.[2] Count I alleged that before the contract had been completed, Jackson obtained the deed from Jagoe for a sum that was less than the sum enumerated in the contract. Haynes sought compensatory damages for the breach. Count II sought rescission of the deed given by Jagoe to Michael Jackson, alleging that Jackson had unduly influenced Jagoe into conveying the property at a time when Jagoe was "emotionally distraught from the recent death of his wife, was suffering from serious drug problems and was not competent."
[¶ 3] Acting pro se, Jackson filed his answer to the complaint in December of 1997. He denied the allegations and asserted that the deed he obtained from Jagoe was valid. In November of 1998, Haynes filed a motion for a partial summary judgment on his breach of contract claim and Jackson's emotional distress and fraud counterclaims. The motion included a statement of material facts that was supported by appropriate record references. Jackson did not respond to the motion.
[¶ 4] On January 26, 1999, the Superior Court mailed Jackson a notice informing him that a trial management conference would be held on February 17, 1999, and that motions to continue could be filed no later than February 10. On January 29, the court issued an order regarding Haynes's failure to file a report of conference of counsel that was due in November of 1998. The court assessed sanctions against Haynes and ordered him to complete the report within ten days. The court also invited Haynes to file a motion for a default judgment if Jackson refused to cooperate in preparing the report.
[¶ 5] Haynes did file a motion for default judgment on February 8, 1999, asserting that Jackson had "never responded by phone or by mail" to any inquiries and that Haynes had "no effective way to enlist [Jackson's] cooperation in preparing a report of conference of counsel." Haynes requested that the court enter a default judgment and grant his unopposed motion for a partial summary judgment. Jackson did not respond to the motion for default.
[¶ 6] On February 17, Stacey Jackson, acting under a power of attorney granted to her by Michael, filed a motion for postponement, asserting that Michael had been diagnosed with kidney cancer in May of 1998 and that he was unable to respond to the claim because his cancer treatment left him confused, forgetful, and frequently ill. Despite being in the courthouse on February 17 to file her motion, Stacey did not attend the trial management conference that was scheduled for that day. On February 18, the court granted Haynes's motion for a partial summary judgment based on Jackson's failure to respond to the motion. See M.R. Civ. P. 7(c). On February 19, the court granted a default judgment in favor of Haynes on all claims and counterclaims "[b]ecause [Jackson] has failed to respond pursuant to [the] appropriate rules."
[¶ 7] The court allowed Haynes to select the claim under which relief would be granted. Haynes asked for relief under Count II, the rescission claim, and the court rescinded the deed from Jagoe to Jackson, declaring it "null and void ab initio." The result of the judgment was that the property at issue in the case "remain[ed] in [Haynes] in his capacity as the personal representative of the Estate of Bruce Jagoe, and never vested in the defendant."[3]
*1052 [¶ 8] On March 30, 1999, Stacey, acting pursuant to the power of attorney from Michael, and without counsel, filed a motion to vacate the orders entered on February 18 and 19. In her motion, she made several factual claims that were not supported by an affidavit. Stacey asserted that because of her husband's kidney condition, he had been "unable to function in a normal manner." She had, therefore, agreed to act as his attorney-in-fact under a power of attorney executed on September 18, 1998. Stacey stated that she knew nothing of the case until she received two letters from the court in early February of 1999. After receiving those letters, she went to the Cumberland County Courthouse on February 11 and asked how she could seek a postponement. She was told to contact the opposing attorney, which she did on February 16. He objected to the motion, and she noted the objection on the motion for postponement she filed on February 17.[4] Stacey asserts that she had no knowledge of the trial management conference that was scheduled for that day.
[¶ 9] The court denied Stacey's motion, and Stacey filed a notice of appeal. In July of 1999, Haynes moved in this Court to dismiss the appeal on the ground that the notice of appeal was not "filed by the actual party Defendant below, Michael Jackson." Stacey filed two motions of her own with this Court, a motion requesting that the Court recognize her as Michael's legal representative in these proceedings, and a motion for reversal of judgment, or in the alternative, an order remanding to the court of proper jurisdiction.[5] We ordered that all three motions "be considered along with the merits of the appeal."[6]
[¶ 10] In the power of attorney on which Stacey relies, Michael granted his wife sweeping powers as his attorney-in-fact. He granted Stacey the power "[t]o exercise, do, or perform any act, right, power, duty or obligation whatsoever that I now have or may acquire the legal right ... [to] do or perform in connection with ... any . . . matter whatsoever." The power was not to be removed because of Michael's disability or incapacity. It was to be terminated, however, if Michael was ever adjudged incompetent or upon Michael's death. Though the power of attorney granted by Michael did not specifically identify the power to appear and defend his rights in legal proceedings, a fair reading *1053 of the document would include such a power.[7] The question remains, however, whether Michael could properly grant his wife that power.
[¶ 11] Haynes contends that Maine law does not permit legal representation by non-lawyer representatives in the courts and that, although an attorney-in-fact may be empowered to defend suits on behalf of her principal, she must do so through counsel rather than personally.
[¶ 12] We must determine whether state statutes and the rules promulgated by the Supreme Judicial Court[8] allow Stacey to proceed with this appeal in the circumstances of this case. We conclude that she is unable to do so. Our power of attorney statute permits a grantor to delegate a broad range of powers.[9]See 18-A M.R.S.A. § 5-508(e) (Supp.1999) ("the generality powers of an attorney-in-fact in a power of attorney ... is not limited by the inclusion in the power of attorney of a list of the specific powers granted to the attorney-in-fact").[10] Section 5-508 does not contain any language that limits the scope of a power of attorney only to those areas in which the principal could act through an agent. See 18-A M.R.S.A. § 5-508 (Supp. 1999). Standing alone, then, § 5-508 does not prevent a principal from granting his attorney-in-fact the power to appear pro se on the principal's behalf.
[¶ 13] The statute prohibiting the unauthorized practice of law, however, limits the scope of § 5-508. It is a Class E crime to practice law in Maine without first obtaining admission to the bar. See 4 M.R.S.A. § 807(1) & (2) (Supp.1999). Section 807(3) does contain more than ten exceptions to the general prohibition, allowing, for example, officers or employees of businesses or government agencies to appear in court for special purposes, but it does not provide an exception authorizing an attorney-in-fact to appear pro se on behalf of her principal. See 4 M.R.S.A. § 807(3) (Supp.1999).
[¶ 14] Title 4 section 860 allows parties to "plead and manage their own causes in court or do so by the aid of such counsel as they seek to employ," but that section provides no authority for parties to appear through their attorneys-in-fact. See 4 M.R.S.A. § 860 (1989). At one time, "any citizen of good moral character who produce[d] in court a letter of attorney was permitted" to represent his principal. See R.S. ch. 93, § 45 (1930) (the precursor to today's § 860).[11] In 1931, however, the statute was amended to delete that language. See P.L.1931, ch. 176, § 5 (striking the language quoted above). In the same Act, the legislature repealed a provision that merely prevented non-lawyers from receiving payment for legal services and replaced it with a provision that made it a crime to practice law unless admitted to *1054 the bar. See P.L.1931, ch. 176, § 4 (repealing R.S. ch. 93, § 31 (1930)). It is clear that the intent of that legislation was to prohibit the use of a power of attorney to allow a non-lawyer to practice law.
[¶ 15] The subsequent enactment of the broad power of attorney statute does not change the strict limitations on the unauthorized practice of law. Contrary to Stacey's contention, the power of attorney statute does not authorize her to appear personally in court for Michael, her principal. See 18-A M.R.S.A. § 5-508 (Supp. 1999). Nor do any of the rules adopted by the Supreme Judicial Court provide authorization for Stacey to act as an attorney for her husband by filing pleadings or appeals. Because Stacey was not authorized to act as Michael's attorney, her actions in this case can be given no effect. See National Publicity Soc. v. Raye, 115 Me. 147, 151, 98 A. 300, 302 (Me.1916) (the prohibition of unauthorized practice of law applies not only to the actor but also to the acts undertaken); see also Boyer v. Boyer, 1999 ME 128, ¶ 4 n. 2, 736 A.2d 273, 275 n. 2 (when father of minor child filed response to motion for summary judgment, the submission was given no effect). Accordingly, the appeal must be dismissed.[12]
The entry is:
Appeal dismissed.
NOTES
[1] Michael Jackson died on August 30, 1999 of renal cell cancer. Jackson's wife, Stacey Jackson, asserts that she is Michael's personal representative, although she offers no proof of this fact. Stacey, in accordance with M.R. Civ. P. 25(a)(1), filed a notice of death and motion for substitution of party with this Court on September 10, 1999.
[2] The contract called for Jackson to pay Jagoe $400 per month for twelve years, at which time Jagoe was to convey the property to Jackson. The total amount of the monthly payments was $57,600.
[3] The court did not address the restitutional aspect of rescission. See Masters v. Van Wart, 125 Me. 402, 407, 134 A. 539, 541-42 (Me. 1926) (because rescission is an equitable remedy which seeks to return the parties to the positions they were in prior to the agreement, the remedy is not complete unless restitution of consideration is made by the plaintiff). Nor did the court's decision address the effect of rescission of the deed on the original land sale contract.
[4] In her motion to vacate, Stacey also made several factual claims concerning the merits of the case. She acknowledged that a land sale contract existed between her husband and Bruce Jagoe and stated that Jagoe approached Michael in 1995 "about paying the property off." She claimed that at that time, Michael was current on his payments and had paid a total of $17,600 under the land sale contract. Stacey described the subsequent agreement reached by Jagoe and Michael: "My husband agreed to give Mr. Jagoe 2 cars, 1 Winnibago, 1 truck, I motorcycle w / extras and $3,500. The value agreed upon being $19,800 as the final payment." Finally, Stacey stated that the subsequent agreement was reached, and the contract was signed and the deed was delivered only after both parties responded to extensive questions as to their willingness to complete the transaction.
[5] The motion to reverse the judgment was accompanied by a brief which was signed by Michael Jackson. A cursory inspection of the handwriting, however, reveals that the brief was written by Stacey.
[6] Pursuant to the appeal, Stacey submitted both a brief and an appendix of sorts entitled "Affidavits/Exhibits." This "appendix" contains numerous documents including (1) Michael Jackson's death certificate, signed on August 30, 1999; (2) a notarized letter from the County of Cumberland describing the role of notaries when assisting people in land transactions; (3) a letter from Michael's on-cologist dated November 30, 1998 declaring him "partially disabled"; (4) a notarized affidavit from John Aceto supporting Stacey's account of the deed transaction; and (5) a copy of the 1995 deed.
[7] For example, the document gives Stacey the power to sue to recover Michael's debts, as well as engage in any transaction of any kind.
[8] The power to regulate the practice of law belongs to the Judicial Branch. See Board of Overseers of the Bar v. Lee, 422 A.2d 998, 1002 (Me.1980).
[9] Michael granted his wife the power of attorney in August of 1998, so it is governed by 18-A M.R.S.A. § 5-508 (Supp.1999), which became effective in April of 1998. See P.L. 1997, ch. 683, § C-6 (effective April 3, 1998).
[10] The only exception to that rule is that a power of attorney for health care must be explicit. See 18-A M.R.S.A. § 5-508(f) (Supp. 1999).
[11] The full text of the provision was as follows:
Sec. 45 Management of causes by parties or counsel.
Parties may plead and manage their own causes in court or do so by the aid of such counsel, not exceeding two on a side, as they see fit to employ; or by any citizen of good moral character who produces in court a letter of attorney for that purpose; but no person whose name has been struck from the roll of attorneys for misconduct shall plead or manage causes in court under a power of attorney for any other party, or be eligible for appointment as a trial justice, or justice of the peace.
R.S. ch. 93, § 45 (1930).
[12] Although we must dismiss this appeal filed by Stacey, the provisions of Rule 60(b) are available as a means of presenting to the trial court the merits of the contentions of Michael in regard to the judgment of that court and any issue of Michael's capacity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2704789/ | [Cite as State v. Norris, 2011-Ohio-1795.]
[Please see original opinion at 2011-Ohio-1251.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95485
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TOYA NORRIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED; REMANDED
FOR CORRECTION OF ENTRY
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-497708
BEFORE: Keough, J., Cooney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: April 14, 2011
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ON RECONSIDERATION1
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Toya Norris, appeals from the judgment of
the common pleas court, entered pursuant to remand from this court, finding
her guilty of two counts of felonious assault with one- and three-year firearm
specifications, and sentencing her to five years incarceration and five years
The original announcement of decision dated March 17, 2011, State v. Norris, 8th Dist. No.
1
95485, 2011-Ohio-1251,is hereby vacated.
mandatory postrelease control. For the reasons that follow, we remand with
instructions to the trial court to correct its entry dated July 2, 2010 to reflect
that Norris is subject to three years mandatory postrelease control.
I. Facts and Procedural History
{¶ 2} Norris was indicted in June 2007, on two counts of felonious
assault, both with one- and three-year firearm specifications. Count 1
charged her with knowingly causing serious physical harm to the victim in
violation of R.C. 2903.11(A)(1). Count 2 charged her with knowingly
causing or attempting to cause physical harm to the victim by means of a
deadly weapon or dangerous ordnance, in violation of R.C. 2903.11(A)(2).
Norris waived a jury trial and the matter proceeded to a bench trial.
{¶ 3} The court found Norris guilty of all charges and subsequently
sentenced her to three years incarceration on the firearm specifications, to be
served consecutive to two years on each of the felonious assault charges,
which were ordered to be served concurrently, for a total of five years
incarceration.
{¶ 4} In January 2009, this court affirmed Norris’s convictions on
appeal but found that the felonious assault convictions were allied offenses
that should have merged for sentencing. State v. Norris, 8th Dist. No. 91000,
2009-Ohio-34. This court remanded the matter for the State to elect which of
Norris’s two felonious assault charges would merge into the other for
purposes of her conviction and sentence, and for the trial court to correct the
conviction entry accordingly.
{¶ 5} On March 9, 2009, after remand, Norris filed a motion for leave to
file a motion for a new trial based on newly discovered evidence. The trial
court summarily denied Norris’s motion on March 18, 2009.
{¶ 6} The State appealed this court’s judgment regarding the allied
offenses to the Ohio Supreme Court, which affirmed the judgment in October
2009. State v. Norris, 123 Ohio St. 3d 163, 2009-Ohio-4904, 914 N.E.2d 1052.
On December 4, 2009, the trial court ordered the original sentence into
execution. Subsequently, on June 7, 2010, Norris filed a motion to vacate the
December 4, 2009 entry, arguing that it was in violation of this court’s
mandate that her felonious assault convictions should merge for purposes of
sentencing.
{¶ 7} On June 18, 2010, Norris filed another motion to vacate; this time
she asked the court to vacate its entry dated March 18, 2009 denying her
motion for leave to file a motion for a new trial.
{¶ 8} On June 28, 2010, the State filed a notice of election of offenses
and request for resentencing in which it indicated that, in accord with this
court’s mandate, it was electing to proceed to sentencing on count 1, felonious
assault in violation of R.C. 2903.11(A)(1).
{¶ 9} The trial court resentenced Norris on July 1, 2010. The court
again sentenced her to a total of five years incarceration: three years on the
firearm specifications (which merged) to run prior to and consecutive to two
years on the felonious assault conviction. The trial judge did not ask Norris,
who appeared at the hearing by video conference from prison, if she had
anything to say. Nor did the judge mention postrelease control or the
consequences of violating postrelease control during the hearing, although the
subsequent journal entry imposed five years mandatory postrelease control
and stated that violation of the conditions of postrelease control could result
in an additional prison term of up to one-half the original five-year prison
term. The judge made no mention of court costs at sentencing and the
journal entry did not impose them. On July 30, 2010, Norris appealed from
this judgment.
II. Law and Analysis
A. Motion for New Trial
{¶ 10} In her first assignment of error, Norris contends that the trial
court erred in denying her motion requesting the court vacate its order
denying her motion for a new trial. In her second assignment of error, she
contends that the trial court erred in denying her motion for a new trial.
{¶ 11} Under App.R. 4(A), an appeal must be taken within 30 days of the
date of the judgment or order appealed from. Without the timely filing of a
notice of appeal, an appellate court is without jurisdiction to hear the appeal.
State v. White, 8th Dist. No. 82066, 2004-Ohio-5200, ¶23, citing Bosco v.
Euclid (1974), 38 Ohio App. 2d 40, 311 N.E.2d 870.
{¶ 12} Norris did not appeal the trial court’s order of March 18, 2009
that denied her motion for a new trial. She should have appealed the court’s
order within 30 days of its entry. She cannot now bootstrap her failure to
appeal that order into this appeal of the trial court’s resentencing entry. We
are without jurisdiction to consider assignments of error one and two and,
accordingly, they are overruled.
B. Right of Allocution
{¶ 13} In her third assignment of error, Norris contends that the trial
court erred at resentencing by failing to afford her an opportunity to speak
prior to sentencing.
{¶ 14} Under Crim.R. 32(A)(1), before imposing sentence, the trial court
shall “afford counsel an opportunity to speak on behalf of the defendant and
address the defendant personally and ask if he or she wishes to make a
statement in his or her own behalf or present any information in mitigation of
punishment.”2
We recognize that this court has stated in several cases that Crim.R. 32(A) does not apply to
2
resentencing. See, e.g., State v. Craddock, 8th Dist. No. 94387, 2010-Ohio-5782, ¶13; State v.
Huber, 8th Dist. No. 85082, 2005-Ohio-2625; State v. Taylor (Oct. 29, 1992), 8th Dist. No. 63295.
These cases, however, involved only a determination of whether the trial court had violated that
{¶ 15} But the trial court’s failure to personally address the defendant is
not prejudicial in every case. State v. Campbell, 90 Ohio St. 3d 320,
2000-Ohio-183, 738 N.E.2d 1178. This court has held that the failure to
strictly comply with Crim.R. 32(A)(1) may be harmless where defense counsel
is able to speak on behalf of the defendant. State v. Smelcer (1993), 89 Ohio
App.3d 115, 128, 623 N.E.2d 1219, appeal dismissed (1993), 67 Ohio St. 3d
1502, 622 N.E.2d 650; see, also, State v. Gumins, 8th Dist. No. 90447,
2008-Ohio-4238 (trial court’s failure to personally address defendant was
harmless error where defense counsel spoke at length at resentencing).
{¶ 16} Furthermore, should the defendant make no attempt to object to
a failure to comply with Crim.R. 32(A), the issue is waived for purposes of
appeal. State v. Merz (July 31, 2000), 12th Dist. No. CA97-05-108, citing
State v. Peters (Aug. 22, 1990), 9th Dist. No. 89CA004733; Toledo v. Emery
(June 30, 2000), 6th Dist. No. L-99-1067.
{¶ 17} The transcript of the resentencing hearing reflects that despite
the court’s failure to ask Norris if she had anything to say, defense counsel
was given an opportunity to address the court at length. Further, the record
reflects that counsel raised no objection whatsoever regarding the trial court’s
portion of Crim.R. 32(A) that provides that “[s]entencing shall be imposed without unnecessary
delay.” We find the court’s pronouncement about Crim.R. 32(A) in these cases to be limited to the
issue of delay in resentencing and not an indication that the remaining provisions of Crim.R. 32(A),
which set forth the court’s duty when imposing sentence, do not apply to resentencing.
failure to ask Norris if she wished to address the court. Accordingly, Norris’s
argument is not well-taken and her third assignment of error is therefore
overruled.
C. Postrelease Control
{¶ 18} In her fourth assignment of error, Norris contends that the trial
court erred because it did not inform her of postrelease control at
resentencing, although it included five years mandatory postrelease control in
its journal entry. In her fifth assignment of error, Norris argues that the
trial court erred in imposing five years mandatory postrelease control in its
journal entry because under R.C. 2967.28(B)(2), postrelease control for a
second degree felony that is not a sex offense is three years.
{¶ 19} We agree with the State’s assertion that the trial court was not
required to reimpose postrelease control at the resentencing hearing. As the
Ohio Supreme Court made clear in State v. Saxon, 109 Ohio St. 3d 176,
2006-Ohio-1245, 846 N.E.2d 824, “a sentencing hearing on remand is limited
to the issue found to be in error on the appeal.” State v. Fischer, __Ohio
St.3d __, 2010-Ohio-6238, __ N.E.2d __, ¶16, citing Saxon. This court
remanded solely for merger of the allied offenses and correction of the
conviction entry regarding that issue. Therefore, the three years mandatory
postrelease control period imposed at Norris’s original sentencing and set
forth in the trial court’s original conviction entry was still valid upon remand,
and the trial court had no obligation to orally reimpose postrelease control.
{¶ 20} Furthermore, pursuant to this court’s mandate upon remand, the
trial court could have issued an entry reflecting only the correction to Norris’s
sentence on the allied offenses. The trial court went beyond this court’s
mandate, however, and issued an entirely new sentencing entry. That entry
erroneously imposed five years mandatory postrelease control on Norris.
{¶ 21} R.C. 2967.28(B) states that “[u]nless reduced by the parole board
* * *, a period of postrelease control required by this division for an offender
shall be one of the following periods: * * * (3) for a felony of the second degree
that is not a felony sex offense, three years[.]” Norris was convicted of
felonious assault, a second degree felony that is not a sex offense and,
therefore, under R.C. 2967.28(B)(3), she was subject to three years
postrelease control, not five.
{¶ 22} Accordingly, we remand with instructions to the trial court to
correct its entry dated July 2, 2010, to reflect that Norris is subject to three
years mandatory postrelease control, as imposed at Norris’s original
sentencing and correctly reflected in the trial court’s original entry.
{¶ 23} Norris’s fourth assignment of error is overruled; her fifth
assignment of error is sustained.
D. Court Costs
{¶ 24} In her sixth assignment of error, Norris contends that the trial
court erred in not orally informing her of court costs at resentencing. She
also complains that despite the fact that no costs were imposed in the journal
entry of resentencing, the clerk of courts sent a cost bill to prison to be
collected from any of her assets. The State contends that the trial court was
not required to reimpose costs at resentencing because it had done so during
the original sentencing hearing. We agree.
{¶ 25} Court costs were properly imposed at Norris’s original sentencing
and no issue about costs was raised in Norris’s first appeal. This court
remanded the matter solely for the purpose of correcting the conviction entry
regarding the allied offenses; thus, there was no issue about costs upon
remand. Accordingly, the trial court had no duty to reimpose costs, either
orally or in its entry, because its original judgment imposing costs was still
valid upon remand.
{¶ 26} With respect to Norris’s complaint that the clerk sent a bill for
costs even though no costs were imposed, we presume the bill was sent
pursuant to the first sentencing entry, which ordered that Norris was to pay
costs and which remained in effect even upon remand for resentencing upon
the allied offenses. Norris’s sixth assignment of error is overruled.
{¶ 27} Affirmed; remanded with instructions to the trial court to correct
its entry dated July 2, 2010 to reflect that Norris is subject to three years
mandatory postrelease control.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
COLLEEN CONWAY COONEY, P.J., and
KENNETH A. ROCCO, J., CONCUR | 01-03-2023 | 08-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3066485/ | United States Court of Appeals for the Federal Circuit
03-1512
CAMPBELL PLASTICS ENGINEERING & MFG., INC.,
Appellant,
v.
Les Brownlee, ACTING SECRETARY OF THE ARMY,
Appellee.
Kyriacos Tsircou, Sheppard, Mullin, Richter & Hampton LLP, of Los Angeles,
California, argued for appellant. With him on the brief was Gary A. Clark.
Domenique Kirchner, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for appellee. With her
on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director; and Todd M. Hughes, Assistant Director. Of counsel on the brief was Craig S.
Clarke, U.S. Army Legal Services Agency, of Arlington, Virginia.
Appealed from: Armed Services Board of Contract Appeals.
United States Court of Appeals for the Federal Circuit
03-1512
CAMPBELL PLASTICS ENGINEERING & MFG., INC.,
Appellant,
v.
Les Brownlee,
ACTING SECRETARY OF THE ARMY,
Appellee.
___________________________
DECIDED: November 10, 2004
___________________________
Before MICHEL, CLEVENGER, and DYK, Circuit Judges.
CLEVENGER, Circuit Judge.
Campbell Plastics Engineering & Mfg., Inc. ("Campbell Plastics") appeals the
decision by the Armed Services Board of Contract Appeals ("ASBCA" or "Board")
upholding an Administrative Contracting Officer's ("ACO's") demand for title to an
invention developed pursuant to a contract between Campbell Plastics and the U.S.
Army Chemical Research, Development and Engineering Center ("Army" or
"government"). See In re Campbell Plastics Eng'g & Mfg. Inc., ASBCA No. 53319
(Mar. 18, 2003). Because we conclude that Campbell Plastics failed to comply with the
invention disclosure provisions of the contract, we affirm.
I
On September 25, 1992, Campbell Plastics (named Venture Plastics, Inc., at the
time) entered into a cost-plus-fixed-fee contract, DAAA15-92-C-0082, with the Army to
develop certain components of an aircrew protective mask, as part of a program for
small disadvantaged business concerns pursuant to section 8(a) of the Small Business
Act, 15 U.S.C. § 637(a) (1988). See 13 C.F.R. § 124.1-.610 (1992) (implementing
section 8(a) programs).
Section I of the contract incorporates numerous clauses from the Federal
Acquisition Regulations ("FARs"), including a "Patent Rights—Retention by the
Contractor" clause from 48 C.F.R. § 52.227-11 (1991) ("FAR 52.227-11") that requires a
contractor to disclose any subject invention developed pursuant to a government
contract and sets forth certain substantive requirements for doing so. The clause
further provides that the government may obtain title if the contractor fails to disclose
the invention within two months from the date upon which the inventor discloses it in
writing to contractor personnel responsible for patent matters. Section I also
incorporates from 48 C.F.R. § 252.227-7039 (1991) ("FAR 252.227-7039") a "Patents—
Reporting of Subject Inventions" clause which requires the contractor to disclose subject
inventions in interim reports furnished every twelve months and final reports furnished
within three months after completion of the contracted work. Subsection H.11 of the
contract, titled "Patent Rights Reports," requires the contractor to submit all "interim and
final invention reports required by patent clause in Section I" on a "DD Form 882,
Report of Inventions and Subcontracts."
03-1512 2
On October 11, 1992, Mr. Richard Campbell, President of Campbell Plastics,
submitted to the Army a DD Form 882 wherein he expressly stated "no inventions." At
a post-award conference on November 17, an Army representative told Mr. Campbell
that a DD form 882 was due at least once every twelve months from the date upon
which the contract was awarded. Shortly thereafter, on December 14, Mr. Campbell
faxed several handwritten drawings to Mr. Jeff Hofmann, an ACO Representative. One
of the drawings identified a location for a "sonic weld or snap fit." Mr. Campbell's
submission was the first in a series of progress reports and drawings submitted during
Campbell Plastics's work under the contract that referenced sonic welding to varying
degrees.
On December 19, 1992, Mr. Campbell faxed a handwritten letter to Mr. Hofmann
seeking to "reopen the question of the sonic welding." The letter included an
explanation of the advantages of sonic welding and the assembly concept. On
January 20, 1993, Mr. Campbell provided Mr. Hofmann with two protective masks that
had sonic-welded side ports. In a January 27 monthly progress report, Campbell
Plastics noted, "We are also testing Sonic Welding the Kapton Film in a housing. This
also has to be tested for leakage and tension." On February 11, Mr. Campbell faxed
Mr. Hofmann a drawing of a side port having a sonic weld. In a monthly progress report
submitted on March 2, Campbell Plastics identified the task of "[t]esting of Sonic
Welding the Kapton film in a housing," and reported that sonic welding "looks viable."
Campbell Plastics further reported that a "prototype mold is currently being fabricated to
prove out the feasibility of sonic welding the Kapton Film and maintaining tension."
03-1512 3
On March 19, 1993, Mr. Campbell faxed Mr. Hofmann a sketch of the side port
voicemitter and the following note: "I am having this sketched up and a simple mold
made to test Sonic Weld/Kapton Concept." On March 22 and 24, Mr. Campbell faxed
various diagrams of the lens retaining system and the front voicemitter housing and
speaking unit, and indicated that certain joints were to be sonic welded. In monthly
progress reports dated April 29 and June 30, Campbell Plastics reported on its testing
of the use of sonic welding. On July 8, Mr. Campbell faxed drawings of the lens
retaining system to Mr. Hoffman and stated specifically that the assembly was sonic
welded. On July 21 and August 5, Mr. Campbell submitted cost estimates and noted in
each that the concept of sonic welding was "nearly complete."
On October 6, 1993, Mr. Joseph J. Stehlik, ACO, wrote to Mr. Campbell to
remind him that an Interim Report of Inventions and Subcontracts, preferably on a DD
Form 882, must be delivered at least every twelve months from the date of the contract,
listing the subject inventions during the period and also certifying that the required
procedures for identifying and disclosing subject inventions have been disclosed. In the
letter, Mr. Stehlik requested that Campbell Plastics submit an interim report within ten
days. On October 18, Mr. Campbell submitted a DD Form 882 but did not disclose an
invention.
In a monthly progress report dated June 6, 1994, Campbell Plastics stated,
"Eyelens Retaining System, Branson satisfied with Sonic Weld Concept – best under
design restrictions." On September 15, Mr. Campbell submitted a DD Form 882 that
again indicated that no invention had been developed under the contract. Campbell
Plastics did not submit another DD Form 882 for the remainder of the contract period,
03-1512 4
and it received no further request from the Army to do so. In monthly progress reports
dated October 7 and November 8, Campbell Plastics reported continued work on the
sonic welding process.
On February 7 and November 24, 1995, Mr. Campbell faxed Mr. Hofmann
drawings that identified changes in the dimensions of the eyelens retaining system to
facilitate sonic welding.
In June 1997, the Army published a report titled, "Design of the XM45 Chemical-
Biological, Aircrew, Protective Mask." The report disclosed research conducted by the
Army from October 1991 through July 1995, and referenced sonic welded components
in the mask.
In August 1997, Campbell Plastics contacted an attorney who soon after drafted
a patent application for a "Sonic Welded Gas Mask and Process." Campbell Plastics
filed the application on October 9, 1997. The U.S. Patent and Trademark Office
("USPTO") made the application available to the Army for the limited purpose of making
a secrecy determination pursuant to 35 U.S.C. § 181 (1994). Pursuant to the USPTO's
request, the Army reviewed Campbell Plastics's application by January 30, 1998.
The patent application issued on April 20, 1999, as U.S. Patent No. 5,895,537
("the '537 patent"). The '537 patent expressly reserved for the government a paid-up
license and "the right in limited circumstances to require the patent owner to license
others on reasonable terms as provided for by the terms of Contract No. DAAA15-92-C-
0082 awarded by The Army." On April 28, Campbell Plastics notified the Army in writing
of the '537 patent.
03-1512 5
After an exchange of letters between the parties regarding the Army's claim to
joint ownership of the subject invention, including one in which the Army admitted that it
had, by June 1997, a report drafted by government employees that provided an
enabling disclosure of the invention, the ACO ultimately concluded that Campbell
Plastics forfeited title to the patent by failing to comply with FAR 52.227-11.
On March 14, 2001, Campbell Plastics appealed the ACO's decision. Both
parties filed cross-motions for summary judgment. Though Campbell Plastics conceded
in its motion that its disclosure was not in the form of a DD Form 882 as was required by
the contract, Campbell Plastics argued that it disclosed all technical aspects of the
invention to the Army and that the Army admittedly had an enabling disclosure of the
subject invention by June 1997. Campbell Plastics furthermore argued that forfeiture is
not favored by law, especially where the government suffered no genuine harm. In
short, Campbell Plastics framed its failure to comply with the contract as one in form
only, which should not result in the forfeiture of title to the subject invention.
In denying the appeal, the Board ruled that Campbell Plastics failed to satisfy its
contractual obligation to inform the Army that it considered sonic welding to be an
invention. The Board further ruled that any information the Army gleaned from its
review of the patent application for secrecy determination purposes and its own June
1997 report was not provided by Campbell Plastics, and that forfeiture was appropriate
under the circumstances. Finally, the Board recognized that FAR 52.227-11(d), which
specifies when the government "may" obtain title to a subject invention, vests the Army
with some discretion in determining whether to take title. The Board found, however,
03-1512 6
that the Army had not abused its discretion. Campbell Plastics now appeals the Board's
decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10) (2000).
II
The Contract Disputes Act ("CDA"), 41 U.S.C. § 609(b) (2000), governs this
court's review of Board decisions. While the CDA provides for nondeferential review of
the Board's legal conclusions, it specifies that the Board's factual findings shall be final
and conclusive unless they are "fraudulent, or arbitrary, or capricious, or so grossly
erroneous as to necessarily imply bad faith, or if such decision is not supported by
substantial evidence." Id.
III
Because we have never before defined a contractor's obligation to disclose a
"subject invention" under FAR 52.227-11, this case presents a matter of first impression
for this court.
In 1980, Congress passed the Bayh-Dole Act, 35 U.S.C. §§ 200-212, the
statutory scheme from which FAR 52.227-11 arises. With few exceptions, the Act
allows nonprofit organizations and small business firms to elect to retain title to any
invention by the contractor developed pursuant to a government contract. For purposes
of the Act, Congress has termed these inventions "subject inventions." See 35 U.S.C.
§ 201(d)-(e) (1988) (defining an "invention" to mean "any invention or discovery that is
or may be patentable," and "subject invention" to mean "any invention of the contractor
conceived or first actually reduced to practice in the performance of work under a
funding agreement").
03-1512 7
Congress required that each government contract entered into pursuant to the
Act shall contain provisions that require the contractor to "disclose each subject
invention to the Federal agency within a reasonable time after it becomes known to
contractor personnel responsible for the administration of patent matters, and that the
Federal Government may receive title to any subject invention not disclosed to it within
such time." 35 U.S.C. § 202(c)(1) (1988). The reasons for this are clear. Though the
Act provides nonprofit organizations and small business firms the right to elect title to a
subject invention, it also vests in the government the right to a paid-up license to
practice the invention when the contractor elects to retain title, id. § 202(c)(4), and the
right to receive title to the invention in the United States or any other country in which
the contractor has not filed a patent application on the invention prior to any pertinent
statutory bar date, id. § 202(c)(3). The disclosure provisions of section 202(c)(1) thus
provide the government adequate means with which to protect these rights.
Subsection I.53 of Campbell Plastics's contract incorporated the clause "Patent
Rights—Retention by the Contractor" of FAR 52.227-11, which obligates the contractor
to disclose "subject inventions" to the government and sets forth both substantive and
formal requirements for the disclosure. The clause states in relevant part:
(c) Invention disclosure, election of title, and filing of patent
application by contractor.
(1) The Contractor will disclose each subject invention
to the Federal agency within 2 months after the inventor
discloses it in writing to Contractor personnel responsible for
patent matters. The disclosure to the agency shall be in the
form of a written report and shall identify the contract under
which the invention was made and the inventor(s). It shall
be sufficiently complete in technical detail to convey a clear
understanding to the extent known at the time of the
disclosure, of the nature, purpose, operation, and the
03-1512 8
physical, chemical, biological or electrical characteristics of
the invention. . . .
(d) Conditions when the government may obtain title. The
Contractor will convey to the Federal agency, upon written request, title to
any subject invention—
(1) If the Contractor fails to disclose or elect title to the
subject invention within the times specified in paragraph (c)
of this clause . . . .
FAR 52.227-11.
Subsection H.11 of Campbell Plastics's contract, titled "Patent Rights Reports,"
requires the contractor to submit all interim and final invention reports "required by
patent clause in Section I" on a DD Form 882, "Report of Inventions and Subcontracts,"
and Campbell Plastics does not dispute that the DD Form 882 is the contractual means
for disclosing subject inventions pursuant to FAR 52.227-11(c)(1).1 In addition to the
disclosure requirements of FAR 52.227-11(c)(1), the form also requires a contractor to
report the title of the invention, whether it elects to file a patent application in either the
United States or a foreign country, and any foreign country so elected.
The language of the Patent Rights Reports clause and the incorporated FARs is
clear and unambiguous. It affords the government the opportunity to take title to any
invention by the contractor that is or may be patentable and was conceived or first
1
How a contractor would disclose on a DD Form 882 the technical aspects
of an invention in the detail required by FAR 52.227-11(c)(1) is not clear. The questions
on the form are not directed towards eliciting a disclosure of technical information, and
the form itself certainly provides no extra space for such a disclosure. In its brief, the
Army states that "[a] written report describing the technical features of the invention
must also be provided with the DD 882." Though we find no support in the contract
itself for the particular manner of disclosure proposed by the Army, we need not
concern ourselves with the question. Campbell Plastics admits that "[p]aragraph H.11
of the Contract . . . requires the written report [of FAR 52.227-11(c)(1)] to be submitted
on DD Form 882." It did not do so.
03-1512 9
actually reduced to practice in the performance of work under the contract if the
contractor fails to disclose on a DD Form 882 the technical aspects of the invention, the
inventor and the contract under which the invention was developed, within two months
of disclosing the invention to contractor personnel responsible for patent matters.
This plain-meaning interpretation of the contract is buttressed by the policy
considerations behind the Bayh-Dole Act. While Congress clearly intended "to promote
the commercialization and public availability of inventions made in the United States by
United States industry and labor," and "to encourage maximum participation of small
business firms in federally supported research and development efforts," 35 U.S.C.
§ 200 (2000), it also provided the government with certain aforementioned rights to the
inventions and sought to ensure the safeguard of those rights by requiring government
contractors to disclose subject inventions. See 35 U.S.C. § 202 (stating that each
contract shall ensure that "the contractor disclose each subject invention to the Federal
agency within a reasonable time after it becomes known to contractor personnel
responsible for the administration of patent matters, and that the Federal Government
may receive title to any subject invention not disclosed to it within such time"); id. § 200
(listing the protection of the government's rights in federally supported inventions as a
policy objective). A single, written report containing the information required by FAR
52.227-11(c)(1) effectively provides such a safeguard.
Neither party disputes that Campbell Plastics first disclosed the method for
fabricating a sonic welded gas mask to its patent counsel in August 1997, or that the
method was indeed a "subject invention." At a minimum, then, the contract required
Campbell Plastics to disclose on a DD Form 882 by October 1997, the technical
03-1512 10
aspects of its method for fabricating a sonic welded gas mask, the inventor and the
contract under which the invention was developed.2 Campbell Plastics admittedly did
not do so, and instead indicated "no invention" and "none" on DD Form 882s that it did
submit.
Campbell Plastics contends, however, that it continually disclosed all features of
the invention throughout the contractual period. While it is at least debatable whether
the various progress reports and drawings Campbell Plastics submitted to the Army
together convey a clear understanding of the nature, purpose and operation of the
invention as well as the invention's physical, chemical, biological or electrical
characteristics, we think the contract requirement of a single, easily identified form on
which to disclose inventions is sound and needs to be strictly enforced. If we were to
find Campbell Plastics's style of disclosure sufficient, methods of disclosure could vary
widely from case to case. The government never would be sure of which piece of
paper, or which oral statement, might be part of an overall invention disclosure. But we
do not so find. The contract instead demands a single form for disclosure, which
enables the contracting officials to direct the inventive aspects of the contract
performance to the correct personnel in the agency for a determination of whether the
government has an interest in the disclosed invention, and for the government to
2
Despite the requirement of FAR 252.227-7039 that it submit an interim
report every twelve months, Campbell Plastics last submitted a DD Form 882 to the
Army on September 15, 1994. After that date, the Army never formally requested
another DD Form 882. We need not consider whether the Army waived the DD Form
882 requirement, however, because Campbell Plastics did not raise this issue before
the Board.
03-1512 11
determine how best to protect its interest. Sound policy is promoted by the rule of strict
compliance with the method of disclosure demanded by the contract.
Because Campbell Plastics's piecemeal submissions do not adequately disclose
the subject invention under the parties' contract, the government may take title to the
invention pursuant to FAR 52.227-11(d). The arguments Campbell Plastics advances in
an attempt to avoid application of that subsection are unavailing. Campbell Plastics
argues that the subsection refers only to the timing of the disclosure, and not to the
substance of the disclosure itself. Under Campbell Plastics's interpretation, however, it
could disclose anything under the sun in any form whatsoever and still avoid forfeiture,
so long as it does so within two months of disclosing the subject invention to its
personnel responsible for patent matters.
Campbell Plastics also argues that the government's possession of an enabling
disclosure of the subject invention by June 1997, and its review of the patent application
for secrecy determination purposes, satisfied Campbell Plastics's obligations under the
contract. But whatever information the government had regarding the invention, it did
not get it from Campbell Plastics in the form of a proper invention disclosure.
Finally, Campbell Plastics makes much of the fact that "forfeiture" is disfavored at
common law. The language of the contract is very clear, as is the statutory authority
behind FAR 52.227-11, which allows the government to take title to any invention not
properly disclosed. The Board was correct in holding that Campbell Plastics afforded
the government the opportunity to take title to its patent because Campbell Plastics
failed to disclose the invention in the manner specified in the contract. Campbell
Plastics cannot use the proposition that forfeiture is a disfavored remedy as an absolute
03-1512 12
shield to thwart the government's right to enforce the terms of the contract Campbell
Plastics willingly signed.
IV
The Board determined that because FAR 52.227-11(d) specifies when the
government "may" obtain title to a subject invention, the decision to demand title is a
discretionary matter. Although the Board did not understand Campbell Plastics to have
specifically raised the issue of whether the ACO's decision to demand title to the patent
in this case is within the bounds of discretion, the Board nonetheless addressed and
decided the issue. We surmise that the Board took this step because while Campbell
Plastics did not phrase its contention in the language of abuse of discretion, it clearly
argued that when the government obtains a license to the patent and is not otherwise
harmed, the penalty of forfeiture of title is unwarranted.
In deciding the abuse of discretion issue, the Board properly considered
(1) evidence of whether the government official acted with subjective bad faith;
(2) whether the official had a reasonable, contract-related basis for his decision; (3) the
amount of discretion given to the official; and (4) whether the official violated a statute or
regulation. See McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 1326 (Fed.
Cir. 1999) (citing United States Fid. & Guar. Co. v. United States, 676 F.2d 622, 630
(Ct. Cl. 1982)). Ruling in favor of the government on each point, the Board concluded
that the ACO did not abuse his discretion in demanding title to the subject invention and
necessarily rejected Campbell Plastics's argument that when the government takes a
license in the invention and is otherwise not harmed, the government cannot cause
forfeiture of the patent.
03-1512 13
On appeal, Campbell Plastics sharpens the argument made to the Board,
arguing directly that the ACO abused his discretion by demanding title in circumstances
where the government allegedly has suffered no harm. The government responds that
indeed it has suffered harm from Campbell Plastics's failure to meet the notification
requirements, inter alia, by putting the patent rights of the United States in foreign
countries in jeopardy.
We agree with the Board that FAR 52.227-11(d) vests discretion in the
government in determining whether to invoke forfeiture when an invention has not been
correctly disclosed to it. We also agree that the test for abuse of discretion set forth in
McDonnell Douglas is the test to be applied in this case. We hold that harm to the
government is not a requirement in order for the ACO to insist on forfeiture and remain
within the bounds of sound discretion. Campbell Plastics points to nothing in its
contract with the Army, or in the relevant statute or its legislative history, that requires
the government to show harm to itself in order to invoke the remedy of forfeiture when it
is, as is the case here, otherwise warranted. Because the Board correctly applied the
proper test in deciding that no abuse of discretion was committed by the ACO in
demanding title to Campbell Plastics's patent, we reject Campbell Plastics's argument
that an abuse of discretion occurred here.
V
Campbell Plastics failed to comply with the disclosure provisions of the parties'
contract. The contract unambiguously provides that in such a case, the government
may obtain title to the subject invention. The decision of the Board to deny Campbell
Plastics's appeal is affirmed.
03-1512 14
COSTS
No costs.
AFFIRMED
03-1512 15 | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1357077/ | 196 Kan. 497 (1966)
413 P.2d 98
TOM C. CAIN and IVY CAIN, Appellants and Cross-Appellees,
v.
GROSSHANS & PETERSEN, INC., a Corporation, Appellee and Cross-Appellant.
No. 44,387
Supreme Court of Kansas.
Opinion filed April 9, 1966.
Paul M. Buchanan, of Wichita, argued the cause, and Lawrence Weigand, Lawrence E. Curfman, Byron Brainerd, Charles W. Harris, Orval J. Kaufman; J. Ruse McCarthy, Donald A. Bell, J.L. Weigand, Jr., Spencer L. Depew and Charles R. Moberly, all of Wichita, were with him on the brief for the appellants and cross-appellees.
Emmet A. Blaes, of Wichita, argued the cause, and Roetzel Jochems, Robert G. Braden, J. Francis Hesse, James W. Sargent, Stanley E. Wisdom, Cecil E. Merkel, Harry L. Hobson, Bruce W. Zuercher, L.D. Klenda, Charles M. Cline, Richard A. Loyd, Stephen M. Blaes and Jack S. Ramirez, all of Wichita, were with him on the brief for the appellee and cross-appellant.
The opinion of the court was delivered by
FONTRON, J.:
This is an action to recover damages for breach of contract. The plaintiffs have appealed from a summary judgment entered in their favor for $34,060.00, and the defendant has filed *498 a cross-appeal. For the sake of clarity, we shall refer to the parties as plaintiffs, on the one hand, and defendant on the other.
While the questions presented both on appeal and cross-appeal pertain to the subject of damages, a brief history of the case, which is here for the second time, is essential to an understanding of the issues. The plaintiffs are the owners of a tract of land in Sedgwick County, Kansas, containing 17.03 acres, while the defendant is a highway construction firm which, in the early part of 1960, was in the process of bidding on certain highway improvements to Interstate Highway No. 235.
A few days before the highway contract was to be let, these parties entered into a contract in which the defendant agreed to buy from the plaintiffs, in the event it was awarded the contract, all the dirt, sand and earth materials on plaintiffs' tract of land at a price of $2,000.00 per acre. The contract set out that it was made "for the purpose of providing a Borrow Pit for the Buyer for use on Interstate Highway No. 235," and it contained an agreement by the defendant to comply with the terms and conditions of a conditional use permit approved by the Metropolitan Area Planning Commission and the Board of County Commissioners of Sedgwick County.
The defendant's bid was accepted by the State Highway Commission and it was awarded the highway contract. Subsequently, the defendant denied having made any contract with the plaintiffs and accordingly it took no dirt, sand or other earth materials whatever from the plaintiffs' tract. This lawsuit followed. It was first tried in 1962, at which time the defendant was awarded judgment by the trial court. An appeal from that judgment was perfected by the plaintiffs and is reported as Cain v. Grosshans & Petersen, Inc., 192 Kan. 474, 389 P.2d 839. On the appeal, this court held that the evidence established a contract between the parties, and remanded the case for trial on the amount of damages only.
After the case was remanded, the plaintiffs filed an amended petition in which the following damages were asked: (1) The contract price of the dirt and (2) the reasonable cost of completing the contract, or in the alternative, the increased value which would have accrued to plaintiffs' land had defendant completed the contract. An amended answer was thereafter filed wherein the defendant alleged, in mitigation of damages, that it was at all times ready, willing and able to buy some dirt, sand and earth materials *499 from plaintiffs' tract to the extent that it was economically feasible to use the same but that the plaintiffs refused to sell any such materials unless the defendant agreed to take all the materials from the entire tract; and that had plaintiffs permitted the defendant to take what it offered to buy, the defendant would have bought approximately 14 acres of the tract and would have paid approximately $28,000.00, thus mitigating plaintiffs' damages to that extent. The answer concluded by tendering into court the sum of $6,040.00.
With the pleadings in this shape, a pre-trial conference was held in which the parties jointly moved the court to determine issues of law in advance of trial and to determine the measure of damages to be applied. Pursuant thereto, the trial court ruled that the sole measure of plaintiffs' damages was the contract price of the dirt, and that the defendant's allegations in mitigation of damages constituted no defense to plaintiff's right to recover the contract price in full. The court further found there were no other issues of law or fact for trial and entered judgment for plaintiffs in the amount of $34,060.00.
Neither adversary was pleased with the judgment and both sides have appealed. The following points are relied on by plaintiffs: 1. The trial court improperly ordered a jury trial after it had once been waived. In view of the decision we hereafter reach, this point is moot and need not be considered further. 2. The trial court erred in refusing to hear evidence on the theory of damages based on the cost of completing the work that the defendant was bound to do under the contract. 3. In the alternative to point 2, the court erred in refusing to hear evidence on the difference in value of the property if defendant had performed its agreement.
The sole point raised by the defendant on its cross-appeal is that the court erred in refusing to hear evidence on the issue of mitigation of damages as it was alleged in the answer.
We shall first pursue the plaintiffs' claims of error, which may be said to arise by virtue of their interpretation of the following provisions in the contract:
"... this contract shall be subject to all the conditions and terms of a Conditional Use Permit bearing No. CU-17 approved by the Metropolitan Area Planning Commission and the Board of County Commissioners of Sedgwick County, Kansas, on July 2, 1959 and July 8, 1959, respectively, and the Buyer hereby agrees to comply with all of the terms and conditions of such Permit and to indemnify the Sellers for any damages that they might suffer from any breach of any of said conditions and terms."
*500 The conditional use permit referred to, which had been issued to the plaintiffs, not to the defendant, provided that the earth be extracted to a minimum depth of five feet below the present water table; that a V-mesh fence be installed around the perimeter of the property; that no excavation be nearer than six feet to the property line; that the slope should not exceed three to one; that use of the borrow pit be limited to providing fill for Interstate 235 and limited in time to two years; and that no pumping be permitted which would lower the general water table.
Because the contract was made subject to the terms of the conditional use permit, the plaintiffs would have us construe it to be a construction contract. They refer to the contract by that name in their brief and assert that their damages should be measured by the rules which apply where construction contracts are broken.
We believe that the plaintiffs wholly misconceive the purpose and design of the contract, which need not be set out here in full. The agreement was well summarized in our former opinion, to which the interested reader may refer. As we view the agreement, it clearly is not a contract to construct a lake for the improvement of plaintiff's property. It is, instead, a contract of sale in which "the Sellers agree to sell and the Buyer agrees to buy all the dirt, sand and earth materials" located on plaintiffs' tract all 17.03 acres of it. The contract, itself, spells out its purpose as being "made for the purpose of providing a Borrow Pit for use on Interstate Highway No. 235."
Throughout the contract, from start to finish, the plaintiffs are designated as "Sellers" and the defendant as "Buyer." Nowhere does the buyer agree to build a lake for plaintiffs. The defendant's agreement is to purchase dirt, sand and earth materials from the plaintiffs at an agreed price even though, in the removal of the soil, the defendant is to comply with certain conditions imposed by public authorities.
If there were any remaining doubt as to what the parties intended, it would be dispelled by the following language:
"It is the intention of the parties hereto that this contract shall be a firm agreement for the selling and purchase of the dirt, sand and earth materials on all of the described property if the said State Highway Contract is awarded to the Buyer...."
There is no need for us to determine what the defendant's liability might have been for failing to comply with the terms contained in the conditional use permit, if dirt had been removed from the *501 plaintiffs' premises pursuant to the contract. As it turned out, the defendant removed no earth at all and denied any obligation on its part to purchase dirt. The extent of the defendant's liability under such conditions cannot be gauged by the rules applicable to construction contracts.
It is generally, if not universally, held that damages which can be recovered for breach of contract are limited to those which may fairly be considered as arising in the usual course of things from the breach itself, or such as might reasonably be supposed to have been within the contemplation of both parties as the probable result of the breach. (22 Am.Jur.2d, Damages, § 56, p. 86; Cain Shoes, Inc. v. Gunn, 194 Kan. 381, 383, 399 P.2d 831.) In Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513, this court held:
"It is a general rule that damages may be recovered when they arise naturally that is, according to the usual course of things from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it." (Syl. ¶ 1.)
Applying this well-established rule to the facts of the present case, we find no justification for charging the defendant with losses which the plaintiffs claimed to have suffered because they were not furnished with a fenced-in lake. We cannot reasonably assume that the defendant, at least, would have contemplated damage of that kind as naturally flowing from a breach of the contract.
We have not overlooked the several authorities cited by the plaintiffs, but consider them not in point. Many pertain directly to construction contracts. Others involve situations where dirt was taken from land and the premises were not left in the condition agreed upon. None of the cases are decisive of the question posed in this case. We believe that the plaintiffs' contentions on their appeal are without merit.
We next turn our attention to the defendant's cross-appeal. As previously indicated, the defendant maintains that the trial court erred when it held that facts plead in mitigation of damage failed to constitute a defense to the plaintiffs' claim for the full contract price. It will be recalled that defendant alleged an offer on its part to take only such dirt as it could economically use, but that plaintiffs refused unless the defendant agreed to take the full amount called for by the contract.
The defendant calls attention to the principle that where a party has been injured by a breach of contract he has a duty to minimize his loss to the extent reasonably possible under existing circumstances. *502 We acknowledge this as the general rule in Kansas. Indeed, the principle has been reiterated on more than one occasion. (Lawson v. Callaway, 131 Kan. 789, 293 Pac. 503; Lips v. Opp, 150 Kan. 745, 96 P.2d 865; Swisher v. Beckett, 172 Kan. 711, 242 P.2d 831, and cases therein cited.)
In urging the application of this principle to the facts of the present case, the defendant further maintains that the duty of minimizing damages extends to the point where an injured party is required to deal with a breaching party and where, as here, a contract for the sale of materials having no ready market has been broken, the party who has been offended is obliged to deal with the repudiator in an effort to avoid or lessen his damage.
We are not prepared to say that an injured party may never be obligated to minimize his loss by entertaining a subsequent and less favorable offer from the breaching party, although the majority rule in this country appears to be that an innocent party is not required to execute a less advantageous contract with one who has already welshed on his agreement. (Hirsch v. Georgia Iron & Coal Co., 169 Fed. 578; Duncan v. Wohl, South & Co., 201 App. Div. 737, 195 N.Y.S. 381; Krebs Hop Co. v. Livesley, 59 Ore. 574, 114 Pac. 944, 118 Pac. 165; Minn. Threshing Machine Co. v. M'Donald, 10 N.D. 408, 87 N.W. 993, 998; Ten Broeck Tyre Co. v. Rubber Trading Co., 186 Ky. 526, 217 S.W. 345; Billetter v. Posell, 94 C.A.2d 858, 211 P.2d 621. See also Corbin on Contracts, Damages, § 1043, p. 272.)
Under circumstances which prevailed in this case, we are of the opinion that plaintiffs were not bound to accept a less favorable offer from the defendant than that which led to the executed contract. Not only did the defendant refuse to accept the plaintiffs' dirt according to contract, but it took the position there was no contract at all. The defendant persisted in this stance up to the time of filing its amended answer on February 3, 1965, some five years after the contract was negotiated. This posture is conclusively shown by the first answer filed, wherein the defendant denied "that they [it] ever entered into any type of a contract, either oral or written, with the plaintiffs, or either of them."
The records of this court in Cain v. Grosshans & Petersen, Inc., supra, reflect that throughout the first trial the defendant relied on its contention that no contract of sale was ever consummated. On the first appeal, as the opinion shows, the defendant maintained that the document on which the plaintiffs based their *503 action was, at best, no more than an option contract and even so, was void under the statute of frauds.
In view of the intransigent position assumed by the defendant, it would be a harsh rule which would require the plaintiffs to accede to new and less favorable terms which the defendant might deign to offer. An innocent party would be placed in an intolerable position were he compelled to mitigate his damages under a contract, whose existence the defaulting party flatly denied.
Not only would a guiltless party thus be placed in an anomalous position, but he would be faced with risk, as well. We believe that acceptance of a new and different proposal from a defaulting party who insists that no prior agreement was ever made might arguably subject the acceptor to the danger of having waived his contractual rights. It would be unjust to expose an innocent party to such hazard.
The reasoning in International Contracting Co. v. Lamont, 155 U.S. 303, 39 L.Ed. 160, 15 S.Ct. 97, is persuasive. In that case, suit was brought to compel the government to execute a contract pursuant to its acceptance of the plaintiff's bid. In the meantime, however, the government had called for new bids on the same work and plaintiff had submitted a new and lower bid which was accepted and resulted in a contract under which plaintiff had performed the work. In denying relief, the United States Supreme Court said:
"... He [plaintiff] entered of his own accord into the second contract and has acted under it and has taken advantages which resulted from his action under it, having received the compensation which was to be paid under its terms. Having done all this, he is estopped from denying the validity of the contract. Oregonian Railway v. Oregon Railway, 10 Sawyer 464. Nor does the fact that in making his second contract, the relator protested that he had rights under the first better his position. If he had such rights and desired to maintain them, he should have abstained from putting himself in a position where he voluntarily took advantage of the second opportunity to secure the work. A party cannot avoid the legal consequences of his acts by protesting at the time he does them that he does not intend to subject himself to such consequences...." (pp. 309, 310.)
The principle is illustrated in Krebs Hop Co. v. Livesley, supra, where Syllabus 6 reads:
"A purchaser of hops repudiated his contract, but at the same time offered to buy from the seller, at a price slightly in advance of the market price, the amount of hops he had contracted for. Held, that the refusal of the seller to accept the purchaser's second offer for the hops could not deprive him of the right to recover the difference between the contract and the market price *504 of the hops at the time and place of delivery; for the acceptance of that offer would have imperiled his rights under the first contract, on the theory that the second contract supplanted it."
The defendant calls attention to Holly v. City of Neodesha, 88 Kan. 102, 127 Pac. 616, and Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444, to support its argument that no waiver would have resulted from plaintiffs' acceptance of the subsequent offer. We believe neither case can be said to sustain the defendant's position.
The Holly case involved a dispute over the price of water furnished Mr. Holly by the city. In holding that Holly was not entitled to damages to crops occurring when the city shut off his water, but that he should have paid the higher price demanded by the city and then have sued for the different in the rates under dispute, this court said:
"The power of the city to withhold the water placed the parties on unequal terms, and the law would have regarded as involuntary any payment made to secure a restoration of service...." (p. 112.) (Emphasis supplied.)
The rationale of the rule so announced by the court is found in the disparity between the two parties, a basic inequality which does not inhere in the relationship existing between the parties to this action.
The question presented in Sutton was whether the vendee of certain lumber had waived his right to recover damages occasioned by the vendor's failure to deliver the lumber at the time specified by contract, where the vendee had accepted delivery at a later date. The court held that the subsequent acceptance of the lumber did not constitute a waiver. The case is distinguishable from the one at bar, for the contract itself was undisputed. Neither party denied its existence or denied it was binding.
The defendant cites other cases involving waiver. However, they pertain to contracts whose existence was admitted, not denied. We believe this distinction has significance when it comes to resolving what, if any, duty rests upon an injured party to accept a new and less favorable offer from one who has defaulted on his contract.
Both parties refer to In re Estate of Starmard, 179 Kan. 394, 295 P.2d 610, although we are hard pressed to understand how it can comfort the defendant's cause. There, the claimant sought damages for breach of a contract, which was undenied, to drill an oil well. One defense raised was that after expiration of the lease under which the decedent had agreed to drill the well, another offer was made to drill the well under a new lease containing identical terms *505 except as to the time of drilling. This court held that because the later offer contained new conditions, the plaintiff was not obliged to accept it, although had the offer been unqualified, a situation might have arisen where claimant could not have arbitrarily refused.
In the present case, the offer, if one was made, presented new conditions; it was not an unqualified proffer to perform existing contractual obligations. We conclude that, under the circumstances shown here, the trial court did not err in refusing to hear evidence to support the defendant's allegations of mitigation of damages.
No error appearing, the judgment of the court below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1357111/ | 196 Kan. 583 (1966)
413 P.2d 122
EDGAR FRED WHITEAKER, Appellant,
v.
STATE OF KANSAS, Appellee.
No. 44,439
Supreme Court of Kansas.
Opinion filed April 9, 1966.
Arthur A. Glassman, of Topeka, argued the cause and was on the brief for the appellant.
Robert D. Hecht, County Attorney, argued the cause, and Robert C. Londerholm, Attorney General, and Stephen J. Kritikos, Assistant County Attorney, were with him on the brief for the appellee.
The opinion of the court was delivered by
KAUL, J.:
This is an appeal from an order denying the motion of appellant for discharge from the Kansas State Penitentiary. The appellant will be referred to as petitioner.
In April 1963 a complaint was filed in Shawnee county charging petitioner with robbery in the first degree (K.S.A. 21-527). The petitioner was confined in the Kansas State Penitentiary pursuant to felony convictions in Kingman and Sedgwick counties.
On April 8, 1964, petitioner filed an application under the Uniform Mandatory Disposition of Detainers Act (K.S.A. 62-2901 et seq.) in the district court of Shawnee county. In the application petitioner stated, inter alia, that one Edgar F. Whiteaker had been committed to the Kansas State Penitentiary to a term of "15 and 15 years flat"; that he had served nine months and eleven days on the sentences, leaving a balance of fourteen years, two months and fourteen days still to serve.
Pursuant to his application the petitioner was returned to Shawnee county. On May 15, 1964, petitioner appeared before the district court, with counsel, and entered a plea of guilty to robbery in the first degree. A sentence of not less than fifteen years was imposed under K.S.A. 21-530 and K.S.A. 21-107a. The court further ordered the sentence to run concurrently with sentences petitioner was then serving in the Kansas State Penitentiary.
*584 On February 24, 1965, the petitioner filed, pro se a hand written petition for a writ of habeas corpus in the sentencing court. The petition was considered by the district court as a motion attacking sentence pursuant to K.S.A. 60-1507. The court examined the petition and the files and records of the case in which petitioner was convicted.
On April 8, 1965, the district court made findings and conclusions of law and entered an order denying the motion of petitioner. The district court found the motion of petitioner and the files and records of the conviction conclusively showed that petitioner was not entitled to relief.
On May 4, 1965, on motion of petitioner, present counsel was appointed by the district court and this appeal was duly perfected.
On oral argument before this court it was brought out that petitioner was presently serving two unexpired sentences other than the sentence under attack in this proceeding. Upon questioning by the court it was conceded by defendant's counsel that such was the case. This circumstance was indicated in petitioner's application under the Uniform Mandatory Disposition of Detainers Act and also in the findings of the district court as set out in the record on appeal. In its findings of fact filed in this proceeding the district court sets out the colloquy on allocution between the court, the county attorney, Mr. Brown, the petitioner and his counsel, Mr. Manzanares, a part of which is quoted here:
"MR. BROWN: Did you want to tell the Court about the previous felonies?
"MR. WHITEAKER: Yes, sir. I was convicted of robbery armed robbery in Sedgwick county, armed robbery in Kingman county, armed robbery Garvin county, Oklahoma, and armed robbery Dallas City, Texas.
"THE COURT: You have four previous felony convictions?
"MR. WHITEAKER: Yes, sir.
"MR. BROWN: And we have no objection, Your Honor, to imposition of the Habitual Criminal Act.
"MR. MANZANARES: To run concurrently.
"MR. BROWN: To run concurrently with the rest of the sentences he is now serving.
"MR. WHITEAKER: If I may have permission, I would like to add I am presently serving 50 years in Oklahoma, I have a detainer on me for that amount of time; presently serving 55 years in the State of Texas for which I have a detainer on me at this time so the Court can see at my age I have not too much opportunity."
After the information regarding other sentences was developed on oral argument, counsel for appellee directed an oral motion to this court that the appeal be dismissed on the grounds that even *585 though petitioner were successful in this proceeding he would still be confined under the other sentences.
The identical situation was before this court in the recent case of King v. State, 195 Kan. 736, 408 P.2d 599, where, after quoting applicable provisions of K.S.A. 60-1507 and Rule No. 121 of this court, adopted October 16, 1964, set out in 194 Kan. xxvii, this court said:
"The foregoing language is plain and explicit. We believe it requires neither clarification nor interpretation. The express terms of the rule preclude the petitioner from maintaining this action at this time. No matter what our conclusion might be on the merits of the contentions advanced by petitioner in his motion, he would not be released from prison, for he still would be confined under other sentences whose validity is not involved in this case." (pp. 737, 738.)
In the King case (opinion filed December 11, 1965) the background and applicability of the rule in both Kansas and federal jurisdictions were thoroughly discussed. We adhere to the rule so recently announced in the King opinion. Repetition at this early date would serve no useful purpose.
We affirm the judgment of the lower court denying petitioner's motion and remand this case with directions to dismiss the same. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1357128/ | 64 Cal.2d 884 (1966)
DORIS R. THOMAS, Plaintiff and Appellant,
v.
G. E. GOULIS et al., Defendants and Respondents.
S. F. No. 22019.
Supreme Court of California. In Bank.
May 10, 1966.
Ephraim Margolin, Marshall W. Krause, Arnold M. Greenberg, Richard A. Bancroft and Elliott Leighton for Plaintiff and Appellant.
John F. Duff, Richard G. Logan, Cyril A. Coyle, James S. DeMartini, Thomas Arata, William J. Bush, Peter J. Donnici, James T. McDonald, Richard B. Morris, Jack Greenberg, Robert M. O'Neil, Joseph B. Robison, Sol Rabkin, Duane B. Beeson, Seymour Farber, Robert H. Laws, Jr., Howard Nemerovski and John G. Clancy as Amici Curiae on behalf of Plaintiff and Appellant.
No appearance for Defendants and Respondents.
Gibson, Dunn & Crutcher, William French Smith, Samuel O. Pruitt, Jr., and Charles S. Battles, Jr., as Amici Curiae on behalf of Defendants and Respondents. *885
Memorandum
PEEK, J.
Plaintiff appeals from a judgment for defendants entered upon the granting of defendants' motion to strike plaintiff's complaint in an action for general and statutory damages under sections 51 and 52 of the Civil Code. [fn. 1]
Plaintiff sought to rent an apartment advertised for rental by defendants in May 1962. Her application was refused, and she claims that the sole reason for the refusal, as stated to her by one of the defendants, was the fact that she is a member of the Negro race. She thereupon commenced the instant action in the municipal court and, following a jury trial, recovered judgment in the amount of $1250, including $250 statutory damages as provided in section 52 of the Civil Code. Defendants' motion for a new trial was then granted after plaintiff refused to stipulate to the remittance of a portion of the award for general damages.
Following certification by the Secretary of State of the passage of Proposition 14 by the electorate of the State of California on November 3, 1964, and its incorporation into the Constitution as article I, section 26, [fn. 2] defendants moved to strike plaintiff's complaint on the ground that the constitutional amendment rendered sections 51 and 52 of the Civil Code inoperative. The motion was granted by a three-judge court which, in view of the importance of the questions involved and "serious doubts" entertained by the court as to the constitutionality of article I, section 26, recommended that the matter be appealed and that the appellate department of the superior court certify the matter to this court pursuant to rule 63, California Rules of Court. The matter is now before us after the judgment was affirmed by the appellate department *886 and certified as recommended. In so certifying the appellate department stated that the "sole question involved herein is the constitutionality of Article I, Section 26, of the Constitution of the State of California."
We have concluded today in Mulkey v. Reitman, ante, p. 529 [50 Cal.Rptr. 881, 413 P.2d 825], that article I, section 26, is an unconstitutional infringement on the Fourteenth Amendment and for that reason void in its entirety. In accordance therewith the motion to strike plaintiff's complaint in the instant case must be deemed to have been improperly granted, and the judgment is reversed.
Traynor, C. J., Peters, J., Tobriner, J., and Burke, J., concurred.
WHITE, J. [fn. *]
I dissent.
For the reasons stated in my dissent in Mulkey v. Reitman, ante, p. 545 [50 Cal.Rptr. 892, 413 P.2d 836], I would affirm the judgment.
McComb, J., concurred.
"All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
Section 52 of the Civil Code, provides as follows:
"Whoever denies, or who aids, or incites such denial, or whoever makes any discrimination, distinction or restriction on account of color, race, religion, ancestry, or national origin, contrary to the provisions of Section 51 of this code, is liable for each and every such offense for the actual damages, and two hundred fifty dollars ($250) in addition thereto, suffered by any person denied the rights provided in Section 51 of this code."
"Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses."
NOTES
[fn. 1] 1. Civil Code, section 51, provides as follows:
[fn. 2] 2. Article I, section 26, of the Constitution provides in pertinent part:
[fn. *] *. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1357130/ | 64 Cal.2d 480 (1966)
JOHN ALTER et al., Plaintiffs and Appellants,
v.
JOHN A. MICHAEL, Defendant and Respondent.
L. A. No. 28813.
Supreme Court of California. In Bank.
Apr. 25, 1966.
Cadoo, Tretheway, McGinn & Morgan, John J. Cheroske and Joseph P. Shanahan, Jr., for Plaintiffs and Appellants.
Kinkle, Rodiger, Graf & Dewberry, William B. Rodiger and Eldon W. Bergstrom, Jr., for Defendant and Respondent.
BURKE, J.
[1] On July 24, 1963, plaintiffs filed a malpractice action against defendant attorney at law, alleging that during the period of October 1961 through April 1962 defendant had acted negligently in the conduct of certain *481 legal matters which plaintiffs had retained him to handle. The trial court granted defendant's motion to dismiss, based on the affirmative defense of the one-year statute of limitations found in subdivision 3 of section 340 of the Code of Civil Procedure, [fn. 1] and set up in defendant's answer.plaintiffs appeal from the ensuing judgment. As will appear, we have determined that the alleged cause of action falls instead within the two-year period specified in subdivision 1 of section 339, and that the judgment should be reversed.
Commencing with Hays v. Ewing (70 Cal. 127 [11 P. 602]) in 1886, California courts have uniformly declared that the statute of limitations applicable to an action against an attorney at law for alleged negligence in the performance of professional services is the two-year period provided in subdivision 1 of section 339 within which may be brought "An action upon a contract, obligation or liability not founded upon an instrument of writing, ..." (Jensen v. Sprigg (1927) 84 Cal.App. 519 [258 P. 683]; DeGarmo v. Luther T. Mayo, Inc. (1935) 4 Cal.App.2d 604, 606 [2] [41 P.2d 366]; Griffith v. Zavlaris (1963) 215 Cal.App.2d 826, 828 [1a] [30 Cal.Rptr. 517]; Bustamante v. Haet (1963) 222 Cal.App.2d 413, 414-415 [1] [35 Cal.Rptr. 176]; see also Stark v. Pioneer Casualty Co. (1934) 139 Cal.App. 577, 582 [34 P.2d 731]; Wheaton v. Nolan (1934) 3 Cal.App.2d 401 [39 P.2d 457].)
Until the 1905 code amendments subdivision 4 of section 339 made the two- year period applicable also to "An action to recover damages for the death of one caused by the wrongful act of another"; i.e., to wrongful death actions. However, in 1905 subdivision 4 was deleted from section 339; and section 340, which specifies a one-year limitations period, was amended by enlarging subdivision 3 thereof to include an action "for injury to or for the death of one caused by the wrongful act or neglect of another. ..." [fn. 2] (Code Amends. 1905, pp. 231, 232.)
An action by a patient against a physician and surgeon for injuries sustained by reason of negligent or unskilled treatment, i.e., a medical malpractice action, is held to sound in tort rather than upon a contract and to be barred after one year under the quoted provision of section 340, subdivision 3. (Huysman v. Kirsch (1936) 6 Cal.2d 302, 306 [1] [57 P.2d *482 908]; Stafford v. Shultz (1954) 42 Cal.2d 767, 775 [2- 3] [270 P.2d 1]; Harding v. Liberty Hospital Corp. (1918) 177 Cal. 520 [171 P. 98]; Weinstock v. Eissler (1965) 224 Cal.App.2d 212, 226-227 [36 Cal.Rptr. 537]; Hurlimann v. Bank of America (1956) 141 Cal.App.2d 801, 802-803 [1] [297 P.2d 682], and cases there cited; see also Marty v. Somers (1917) 35 Cal.App. 182 [169 P. 411].)
Defendant argues that a malpractice action against an attorney likewise sounds in tort rather than in contract and should also be barred in one year, that there is no indication that the Legislature in enacting the 1905 code amendments intended a two-year period to continue to apply to lawyers under subdivision 1 of section 339 while only a one-year period would apply to doctors under subdivision 3 of section 340, that no court has yet reviewed the issue, and that it should now be done.
Under settled principles of law we are constrained to hold that the legislative intent has been expressed and that the frequent declarations of the courts on the subject of the statute of limitations which governs the two categories of malpractice actions (legal and medical) should not now be disturbed. As noted, following the 1905 amendments and commencing in 1927 with Jensen v. Sprigg (1927) supra, 84 Cal.App. 519, several appellate court decisions have stated that the two-year period of section 339, subdivision 1, applies to legal malpractice actions, and at least as early as 1917 (Marty v. Somers (1917) supra, 35 Cal.App. 182) the one-year period of section 340, subdivision 3, was held to govern medical malpractice actions.
Meanwhile section 340 has been amended five times, and on the first four of such occasions subdivision 3 was enlarged by the inclusion of further categories of actions to which the one-year statute would apply. (Stats. 1929, p. 896; Stats. 1939, p. 3036; Stats. 1949, ch. 863, 1; Stats. 1953, ch. 1382, 1; Stats. 1963, ch. 1681, 2.) Section 339 was likewise amended and subdivision 3 added thereto to cover an action based upon rescission of an oral contract. (Stats. 1961, ch. 589, 7.) At no time, however, has either section been amended to mention an action for legal malpractice, although the 1953 amendment to section 340, subdivision 3, added actions for neglect against those practicing "veterinary medicine."
"Statutes are to be interpreted by assuming that the Legislature was aware of the existing judicial decisions. [Citation.] Moreover, failure to make changes in a given statute in a particular respect when the subject is before the Legislature, *483 and changes are made in other respects, is indicative of an intention to leave the law unchanged in that respect." (Kusior v. Silver (1960) 54 Cal.2d 603, 618 [5, 6] [7 Cal.Rptr. 129, 354 P.2d 657]; see also Bellman v. County of Contra Costa (1960) 54 Cal.2d 363, 367-368 [5 Cal.Rptr. 692, 353 P.2d 300]; State of California v. Industrial Acc. Com. (1957) 48 Cal.2d 355, 364 [7] [310 P.2d 1]; Cole v. Rush (1955) 45 Cal.2d 345, 356 [8-10] [289 P.2d 450, 54 A.L.R.2d 1137].) Accordingly, it is our conclusion that the Legislature is aware of the decisions declaring that the two-year limitations period of section 339, subdivision 1, governs legal malpractice actions, and has demonstrated an intention to leave that rule unchanged.
Arguments that discrimination results in favor of doctors and against lawyers should be addressed to the Legislature and not to the courts. We note, however, the rule that the one-year period applicable to a medical malpractice action does not commence to run until the patient discovers his injury or through the use of reasonable diligence should have discovered it (Stafford v. Shultz (1954) supra, 42 Cal.2d 767, 776 [4]; Huysman v. Kirch (1936) supra, 6 Cal.2d 302, 307-313; Weinstock v. Eissler (1964) supra, 224 Cal.App.2d 212, 226-227; Hurlimann v. Bank of America (1956) supra, 41 Cal.App.2d 801, 802-803), whereas the two-year period which governs a legal malpractice action runs from the time of the negligent acts (Bustamante v. Haet (1963) supra, 222 Cal.App.2d 414-415, and cases there cited). In this respect the rules could be viewed as discriminating in favor of lawyers. (See Griffith v. Zavlaris (1963) supra, 215 Cal.App.2d 826, 830-831, commenting that any seeming harshness in this respect as between medical and legal malpractice actions is for the Legislature to change, not the courts.) That the Legislature is aware of the differing rules as to when limitations statutes commence to run is demonstrated by the 1961 amendment which added subdivision 3 to section 339 (to cover actions based upon rescission of oral contract) and expressly declared that under certain circumstances the time begins to run from "the date upon which the facts ... occurred," and under other circumstances it "does not begin to run until the discovery ... of the facts * * *"
The judgment is reversed.
Traynor, C. J., McComb, J., Peters, J., Tobriner, J., Peek, J., and Mosk, J., concurred.
NOTES
[fn. 1] 1. All section references herein are to the Code of Civil Procedure.
[fn. 2] 2. Section 340, subdivision 3, had theretofore covered only: "An action for libel, slander, assault, battery, or false imprisonment." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264736/ | 879 F.Supp. 802 (1994)
P. LaRue SIMPSON, Plaintiff,
v.
ERNST & YOUNG, Defendant.
No. C-1-91-196.
United States District Court, S.D. Ohio, Western Division.
September 23, 1994.
*803 *804 *805 *806 *807 *808 Janet Gilligan Abaray, Theodore M. Berry, Waite, Schneider, Bayless & Chesley, Cincinnati, OH, for plaintiff LaRue Simpson.
Michael Samuel Glassman, Dinsmore & Shohl, Cincinnati, OH, Elizabeth B. Healy, Ernst & Young, New York City, for defendants Ernst & Young, A partnership Accounting Firm, Gerry Hill, Managing partner.
ORDER
STEINBERG, United States Magistrate Judge.
This case is before the Court on Plaintiff P. LaRue Simpson's Employment Retirement Income Security Act (ERISA) claim, following arguments thereon and post-hearing pleadings. (Docs. 242, 245, 246, 253). We also consider evidence presented during the jury trial on Simpson's Age Discrimination in Employment Act (ADEA) claim against Ernst & Young, which resulted in a verdict in Simpson's favor. The parties unanimously consented to entry of final judgment by the United States Magistrate Judge.
Simpson contends that Ernst & Young discharged him in retaliation for his requests regarding retirement plan benefits. He also contends that Ernst & Young discharged him with intent to interfere with the attainment of his retirement rights, in order to avoid its obligation to pay retirement benefits to him. Simpson seeks lost retirement benefits; compensatory damages, including back pay, front pay, and emotional distress damages; punitive damages; and attorney's fees and expenses. He also seeks statutory relief of $100 a day for Ernst & Young's failure to provide him with requested pension information.
FINDINGS OF FACT
1. Defendant Ernst & Young is a large accounting firm created in October 1989 by the merger of the Ernst & Whinney and Arthur Young accounting firms. Plaintiff Simpson, a Certified Public Accountant (CPA), was born on September 27, 1943. Prior to his relationship with Ernst & Young, Simpson worked for Arthur Young's Cincinnati, Ohio office from December 1986 to the merger on October 1, 1989. He was Cincinnati Managing Partner from 1987 to 1989. From October 1972 to December 1986, Simpson worked for KMG/Main Hurdman (KMG/MH), an accounting firm Arthur Young acquired in 1986. He was Managing Partner of KMG/MH's Denver and Cincinnati offices from 1981 to 1986.
2. In June 1989, Arthur Young distributed to its partners a Merger Agreement and an Information Document For Partners. The Information Document represented that the worldwide combination of Arthur Young and Ernst & Whinney would result in the largest and strongest international professional services firm in the world. The two firms were described as compatible because, among other things, they "care for individuals by promoting and recognizing them based on performance" and have "mutual respect among partners." Both were estimated to have good increases in their 1990 and 1991 cash earnings, despite merger costs. The Information Document represented that Arthur Young partners would receive equal or better benefits under the Ernst & Young retirement plan. They represented to their partners and the public that the merger was *809 not expected to result in a reduction in partners.
3. On October 1, 1989, the merger was effected. The merged firm organized itself into two entities: Ernst & Young and Ernst & Young U.S. The Ernst & Young Partnership Agreement (Partnership Agreement) required the signatories, who are termed "Partners," to be CPAs and to sign a second agreement, the Ernst & Young U.S. Partnership Agreement (U.S. Agreement). The signatories to the U.S. Agreement were not termed "Partners," but were denominated "Parties" and consisted of individuals who were both CPAs and non-CPAs. The CPAs were referred to as "Capital Account Parties," and the non-CPAs were termed "Investment Account Parties."
4. Both Ernst & Whinney and Arthur Young maintained Cincinnati offices before the merger. Gerald Hill was Ernst & Whinney's Cincinnati Managing Partner. Simpson was Arthur Young's Cincinnati Managing Partner. Following the merger, Ernst & Young named Hill Cincinnati Managing Partner. Simpson was named Cincinnati Director of Entrepreneurial Services, a lesser position.
5. A Management Committee, consisting of ten to fourteen Parties and a Chairman, was responsible for the management of Ernst & Young U.S. and Ernst & Young. Its responsibilities included addition or discharge of Parties, decisions on mergers and acquisitions, allocation of earnings among the Parties, and appointment or removal of the Chairman. The Management Committee also had many responsibilities and duties regarding the retirement plan described in the U.S. Agreement, Section 12 (Ernst & Young Plan).
6. The original members of the Management Committee included Jesse Miles, who was also Chairman, John Schornack, and James Boland.
7. Simpson was covered by four Ernst & Young retirement plans: 1) the Ernst & Young Plan, 2) the Defined Benefit Plan, 3) the Retirement Savings Plan, and 4) the UBT Account.
8. The Defined Benefit Plan and the Retirement Savings Plan each had a five year vesting requirement.
9. The Ernst & Young Plan, embodied in Section 12 of the U.S. Agreement, has age and years of service vesting requirements. Vesting does not occur until the participant reaches age 53. If the participant retires at an age less than 58, he needs either 15 years as a partner or 20 years with the firm to vest. If the participant retires at age 58 or thereafter, there is no years of service requirement. There is a 4% reduction of benefits for each year of service with the firm under 25 years. The amount paid to a retiree under the Ernst & Young Plan is offset by the retiree's benefits under the Defined Benefit and Retirement Savings Plans.
10. The UBT[1] Account is available only to previous partners[2] of Arthur Young, including Simpson. Before the merger, Arthur Young partners had a right to this money as a part of their retirement package, which was to be paid to them over an eight year period following withdrawal or retirement from the firm. Before the merger, UBT Accounts accrued interest over time. As a term of the merger, the UBT Accounts were carried over to Ernst & Young and the UBT Account values were frozen as of September 30, 1989.
11. Each former Arthur Young partner, including Simpson, was allowed to elect retirement under the plan Arthur Young had in place before the merger (Arthur Young Plan), with a frozen UBT Account value, or under the Ernst & Young Plan, with forfeiture of the UBT Account.
12. If Simpson had remained employed at Ernst & Young and retired at age 60 in 2003, he would have had 17 years of service with Arthur Young and Ernst & Young. Due to *810 the 4% reduction of service factor for each year with the firm under 25 years, he would have then vested 68% in the Ernst & Young Plan.
13. On September 27, 1989, Simpson, on behalf of himself and Ernst & Young partners Jerry Hindman and Donald Fritz, wrote to Management Committee Member Schornack, with copies to Management Committee Member Boland and Cincinnati Managing Partner Gerald Hill, requesting years of service credit for their prior service with KMG/MH. Simpson's concerns were: 1) under the Ernst & Young Plan, he would not be fully vested at retirement due to the years of service requirement and service reduction factor; and 2) he was losing his UBT Account's accruing benefits.
14. Schornack responded to Simpson on October 30, 1989, with copies to Boland and Hill, that Simpson, Hindman, and Fritz would not be given credit for their prior service with KMG/MH. Schornack also stated that he did not understand the basis of Simpson's concern that he could not become 100% vested under the Ernst & Young Plan.
15. On November 8, 1989, Simpson again wrote Schornack, with copies to Boland and Hill, "to clarify what we believe to be inequities existing in our pensions due to the merger with [Ernst & Whinney]." Simpson requested a calculation of his retirement benefits as a future Ernst & Young retiree, including UBT Account values, and a calculation of what his retirement benefits would have been under the Arthur Young Plan, including UBT Account values. He asked for the vesting requirements of both plans. Simpson's concern was made clear in the closing paragraph: "For me to spend 27 years as a partner and not receive 100% retirement benefits just is not fair."
16. On November 28, 1989, Simpson wrote Boland, with copies to Schornack and Hill, enclosing calculations showing that at certain earning levels he would receive less under the Ernst & Young Plan than he would have received under the Arthur Young Plan.
17. On December 12, 1989, Schornack presented Simpson's prior correspondence to Management Committee Chairman Miles for his consideration.
18. On December 20, 1989, Simpson communicated directly to Miles on this issue.
19. On December 28, 1989, Miles responded to Schornack, with a copy to Simpson, stating that he did not understand some of Simpson's comments and that Simpson did not understand the retirement plan details. Miles calculated the Ernst & Young Plan vesting percentages of Hindman and Fritz upon retirement at age 60 to be 88% and 100% respectively. Miles did not calculate Simpson's vesting percentage at age 60. He noted that Simpson would vest in the Defined Benefit and Retirement Savings Plans if he remained with the firm until December 1991. Miles' letter concludes:
After writing this epistle it is fairly clear we are dealing with complex matters that are difficult to understand without investing substantial time. If you wish I will subject myself to interrogation by LaRue and do my best to explain how all the plans work, including UBT. (I really do not wish to write further on this subject, however.)
20. On January 11, 1990, Simpson again wrote Schornack on this issue, with copies to Miles, Boland, and Hill.
21. On February 7, 1990, Schornack issued a terse response to Simpson, with copies to Boland and Hill, that the letter he received from Miles was the "final word" and that he should "call it a day" on the subject.
22. Simpson was the only employee who contacted Miles regarding this issue.
23. At the time of the merger, an actuarial analysis of the present value of the merged firms' retirement benefit plans showed that accumulated future pension benefit obligations were $290,000,000 higher than the funding available. This shortfall, if and when it became due in the future, would have to be paid from the firm's current earnings. Standard accounting practices required Ernst & Young to footnote the shortfall amount in its financial reports.
24. Despite its pre-merger representations that the merger was not expected to result in a reduction in partners, the Management *811 Committee concluded that a substantial number of partners would have to be discharged. An October 5, 1989 memorandum from Ernst & Young's first Management Committee meeting stated "excess professional staff capacity to be about 8%" and the "Plan is to act on 5% excess by November 15...."
25. Beginning in late 1989 and continuing to early 1990, the Management Committee adopted a process of resignations and retirements to reduce the number of partners in order to protect the firm from a substantial reduction in profits. Management Committee Chairman Miles characterized this process as a "lay off." The specific date this process was adopted is not documented in the record.
26. The December 18, 1989 Management Committee meeting agenda included items entitled "Partner movement and retention" and "1990 Partner Admissions." "Partner movement" meant discharging as well as retiring partners. The agenda included a list of former Arthur Young partners by age, showing the total number of years with Arthur Young, the total number of years as a partner, and any break in service. The agenda also included a list of former Ernst & Whinney partners by age, showing the total number of years with Ernst & Whinney and the total number of years as a partner. These are items considered in determining whether an individual has worked the years necessary to vest in a retirement plan.
27. The February 21, 1990 Management Committee agenda itemized "Partner resignations and retirements" as well as the "1990 Partner recommendation process." Regarding the former, the agenda included a table entitled "Comparison of Partner Ages in Fiscal 1990," which grouped firm members by age.
28. The Management Committee had the right to request Simpson to terminate his relationship with Ernst & Young U.S. by giving him six months written notice. Simpson had no right to appeal his discharge or the discharge of any other firm member.
29. In May 1990, Ernst & Young U.S. requested Simpson's resignation. There are no contemporaneous Management Committee minutes or other documentation setting forth either the date of or the reason for this decision. Nor was any credible evidence presented establishing either the specific date the Management Committee decided to discharge Simpson[3] or a legitimate reason therefor. Simpson refused to resign. On June 19, 1990, he was given written notification that he was discharged effective December 19, 1990.
30. As of the effective date of his discharge, Simpson was 46 years old. At that time, he had not vested in the Defined Benefit Plan, the Retirement Savings Plan, or the Ernst & Young Plan. Simpson would have vested in the Defined Benefit Plan and Retirement Savings Plan in December 1991. Simpson would have vested in the Ernst & Young Plan when he reached age 58 and had 15 years of service in December 2001.
31. When the Management Committee voted to discharge Simpson, they were aware of Simpson's retirement vesting dates.
32. The money that would have been paid to Simpson had he vested in the Defined Benefit, Retirement Savings, and Ernst & Young Plans remained in those plans, inuring to the benefit of those not discharged.
33. Neither Hindman nor Fritz were discharged.
34. During the period October 1, 1989 through March 25, 1991, Ernst & Young U.S. discharged 120 older partners while admitting 162 younger partners. The mean age of the partners discharged was 44.80. The mean age of the partners admitted was 37.50. The mean salary of the partners discharged was $174,443. The mean salary of the partners admitted was $128,741. The discharge of the older partners and admission of younger partners reduced Ernst & Young annual salary obligations by $5,484,240. It also substantially *812 reduced the firm's shortfall in future pension benefits obligations, which where based on salary rates. Under the Ernst & Young Plan, retirement benefits were based on the retiree's three highest years salary.
35. Simpson's 1990 salary was $194,092.
36. Simpson was replaced by Fritz, a younger person with a lower salary.
37. 10.8% of the discharged partners were not vested in the Defined Benefit or Retirement Savings Plans.
38. A substantial majority of the discharged partners were not vested in the Ernst & Young Plan.[4]
39. The Management Committee voted to discharge Simpson in part because of his retirement inquiries and to reduce the firm's $290,000,000 shortfall in future pension benefits obligations.
40. Upon his discharge in December 1990, Ernst & Young advised Simpson that he would be paid $61,047 as reflected on a Statement of Accounts and $47,594 from the UBT Account, the latter to be paid out over an eight year period. Ernst & Young advised Simpson that this calculation was binding on the parties. In March 1993, however, Ernst & Young told Simpson that it had made an error in calculating the $61,047 amount and would withhold $10,425 from Simpson's future UBT Account payments.
41. Because of Ernst & Young's actions, Simpson lost $421,747 in past retirement benefits and $290,782 in future retirement benefits.[5]
CONCLUSIONS OF LAW
The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., is a comprehensive statute designed to protect employees and their beneficiaries regarding employee benefit plans. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137, 111 S.Ct. 478, 481, 112 L.Ed.2d 474 (1990), citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). In promulgating ERISA, Congress intended to cure several specific problems: 1) employees with long years of employment were losing anticipated retirement benefits due to lack of vesting; 2) the soundness and stability of benefit plans were endangered by inadequate funding; and 3) employees and beneficiaries were being deprived of anticipated benefits due to termination of plans before the accumulation of sufficient funds. 29 U.S.C. § 1001(a).
ERISA imposes participation, funding, and vesting requirements upon pension plans. Ingersoll-Rand, 498 U.S. at 137, 111 S.Ct. at 481. It also sets forth uniform standards, including rules for reporting, disclosure, and fiduciary responsibility for both pension and welfare plans. Id. The statute provides for criminal penalties and civil enforcement. 29 U.S.C. §§ 1131, 1132.
Congress expressly included a broad preemption clause in ERISA, wherein it supersedes "... any and all state laws insofar as they may now or hereafter relate to any employee benefit plan...." 29 U.S.C. § 1144. The preemption clause is deliberately expansive, so that pension plan regulation is an exclusive federal concern. Ingersoll-Rand, 498 U.S. at 138, 111 S.Ct. at 482, citing Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987).
As part of ERISA, Congress enacted 29 U.S.C. § 1140, which prohibits the discharge of "a participant ... for exercising any right to which he is entitled under the provisions of an employee benefit plan, [or] this subchapter," or "for the purpose of interfering with the attainment of any right to which *813 such participant may become entitled under the plan, [or] this subchapter...."
Congress enacted § 1140 primarily to prevent unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining retirement benefits. West v. Butler, 621 F.2d 240, 245 (6th Cir.1980). Congress viewed this as an integral part of ERISA because without it, employers would be free to circumvent the provision of promised benefits. Ingersoll-Rand, 498 U.S. at 143, 111 S.Ct. at 485. However, ERISA does not guarantee every employee a job until he or she has fully vested in his or her pension plan. Dister v. Continental Group, Inc., 859 F.2d 1108 (2d Cir.1988).
To prove a prima facie case under § 1140, the plaintiff must show by a preponderance of the evidence: 1) prohibited employer conduct 2) taken for the purpose of interfering 3) with the attainment of any right to which the employee may become entitled. Humphreys v. Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir.1992). To satisfy the second element, plaintiff must show that the employer had a specific intent to engage in the proscribed activity. Id. Proof of specific intent may be shown by direct evidence or, more often, by circumstantial evidence. Gavalik v. Continental Can Co., 812 F.2d 834, 852 (3d Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 495, 98 L.Ed.2d 492 (1987). The plaintiff is not required to show that the employer's sole purpose in discharging him was to interfere with his pension benefits, but that it was a motivating factor in the decision. Humphreys, 966 F.2d at 1043. The loss of benefits incidental to a legitimate discharge does not constitute an ERISA violation. Gavalik, 812 F.2d at 851. Otherwise, any action by an employer that resulted in an economic savings would be suspect since pension rights are a substantial component of any employer's economic situation. Humphreys, 966 F.2d at 1044.
To prove a prima facie retaliation case under § 1140, the plaintiff must show by a preponderance of the evidence 1) that he engaged in activity protected under ERISA; 2) that he was the subject of an adverse employment action; and 3) that there is a causal link between the employee's protected activity and the employer's adverse action. See Rath v. Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir.1992); Cooper v. City of North Olmsted, 795 F.2d 1265 (6th Cir.1986).
If the plaintiff proves a prima facie case, it is then the employer's burden to introduce evidence of a legitimate, nondiscriminatory reason for its challenged action. Humphreys, 966 F.2d at 1043. If the employer successfully asserts a legitimate reason for the plaintiff's discharge, then the plaintiff must prove that interference with pension benefits was a motivating factor in the employer's discharge decision, the burden of persuasion always being borne by the plaintiff. See St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).
If the plaintiff shows that the employer's proffered reasons are pretextual, the plaintiff must still prove that interference with pension benefits and/or retaliation for protected ERISA activity was a motivating factor in the discharge decision. See id. at ___-___, 113 S.Ct. at 2749-50. The factfinder's disbelief of the employer's proffered reasons, particularly if disbelief is accompanied by evidence of mendacity, may, together with the elements of a prima facie case, suffice to permit an inference of intentional interference with pension benefits and/or retaliation. See id. at ___, 113 S.Ct. at 2749; Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir.1994). To refute the employer's proffered reasons, the plaintiff may show by a preponderance of the evidence either: 1) that the proffered reasons had no basis in fact; 2) that the proffered reasons did not actually motivate his discharge; or 3) that the proffered reasons were insufficient to motivate his discharge. See Manzer, 29 F.3d at 1083.
I. The Ernst & Young Retirement Plans Are Covered By ERISA
Ernst & Young has conceded that the Defined Benefit Plan is an ERISA plan. (Doc. 166, p. 29). Ernst & Young contends that *814 the Retirement Savings Plan, the Ernst & Young Plan, and the UBT Account are not covered by ERISA. It also contends that the Ernst & Young Plan is a "top hat" plan and therefore is exempt from ERISA.
A retirement or pension plan covered by ERISA is:
any plan, fund, or program ... established or maintained by an employer ... to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits under the plan.
29 U.S.C. § 1002(2)(A).
An ERISA pension plan must include employees:
The term `employee benefit plan' shall not include any plan, fund or program ... under which no employees are participants.... For example, a so-called `Keogh' or `HR-10' plan under which only partners or only a sole proprietor are participants covered under the plan will not be covered under title I. However, a Keogh plan under which one or more common law employees, in addition to self-employed individuals, are participants covered under the plan, will be covered by title I.
29 C.F.R. § 2510.3-3(b).
The definition of an ERISA pension plan is intentionally broad and is in keeping with Congress's intent to establish pension plan regulation as an exclusive federal concern. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990).
One purpose of ERISA is to correct abuses occurring in the management of pension plans held in trust for workers. Robertson v. Alexander Grant & Co., 798 F.2d 868, 870 (5th Cir.1986), cert. denied, 479 U.S. 1089, 107 S.Ct. 1296, 94 L.Ed.2d 152 (1987), citing S.Rep. No. 127, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4838, 4838-44 and H.Rep. No. 533, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4639-43. Employees in such relationships are more vulnerable to abuses than genuine partners because employees typically lack control over pension plan management and power to decide whether to extend pension benefits to certain employees. Id. In contrast, a genuine partner has more control and decision-making power because of his right to vote in partnership affairs. Id. The true partnership arrangement also has a self-policing feature whereby partners have an incentive not to agree to provisions that may harm certain members of the partnership because each partner knows that he could ultimately be the harmed partner. Id. On the other hand, the employer is motivated to earn profits for himself or the shareholders and has less incentive to treat his employees as fairly as a partner would treat other partners. Id. Because of this difference between true partnership arrangements and employer-employee relationships, Congress intended to regulate and protect only the latter. Id.; Schwartz v. Gordon, 761 F.2d 864, 867-69 (2d Cir.1985). The administrative regulation exempting Keogh plans from ERISA furthers Congress's intent. Self-employed persons, unlike employees, have complete control over the amount, investment, and form of the retirement fund and do not need ERISA protection. Schwartz, 761 F.2d at 868.
Earlier in this case, Ernst & Young contended that the three retirement plans at issue were not subject to ERISA because they covered only partners. In an earlier opinion, we found that Simpson was an employee rather than a genuine partner, thus rejecting that contention. We relied upon Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992), which indicates that traditional legal concepts are the criteria for determining whether an individual is an employee for ERISA purposes. We found that under traditional employee and partnership law concepts, Simpson and other similarly situated "partners" were actually employees. (Doc. 188). Thus, the pension plans in question *815 do cover employees, even though they denominate them partners.
There are two elements to an ERISA pension plan. It must: 1) be established or maintained by the employer for the benefit of its employees; and 2) provide retirement income for employees or result in income deferral payable by employees upon termination of the employment relationship. 29 U.S.C. § 1002(2)(A).
There is no dispute that Ernst & Young established the Retirement Savings Plan and the Ernst & Young Plan. Although Arthur Young established the UBT Account, the right to receive money from that fund after the merger was enforceable against Ernst & Young. Thus, Ernst & Young maintained the UBT Account. By their express terms, the Retirement Savings Plan and the Ernst & Young Plan provide for retirement income. See Commercial Mortgage Insurance Inc. v. Citizens National Bank of Dallas, 526 F.Supp. 510 (N.D.Tex.1981). The UBT Account results in a deferral of Arthur Young income for a period extending to the termination of the employment relationship. See 29 U.S.C. § 1002(2)(A)(ii). Therefore, the Retirement Savings Plan, the Ernst & Young Plan, and the UBT Account are ERISA pension plans. 29 U.S.C. § 1002(2)(A).
Affording Simpson ERISA protection is in keeping with ERISA's purpose to protect the employee who is vulnerable to management abuses regarding his retirement funds. See Robertson, 798 F.2d at 870. Simpson lacked any meaningful control and voting rights in Ernst & Young and was thus unable to protect himself against Management Committee decisions regarding his retirement benefits. (Doc. 188, p. 32). Concern that his retirement benefits were being substantially reduced because of the merger and Management Committee decisions as to the new retirement arrangement's terms motivated Simpson's letters. Ernst & Young defended its actions as economically necessary, contending that certain partners had to be discharged in order to maintain the financial status quo of those remaining, thereby evidencing its posture as one of an employer rather than a partnership. Such actions are precisely the reason for ERISA protection of employees. Simpson was an individual Congress specifically intended to protect under ERISA: he had long years of service but was losing anticipated benefits due to lack of vesting. See 29 U.S.C. § 1001(a).[6]
Ernst & Young contends that the Retirement Savings Plan is exempt from ERISA coverage because it is a Keogh plan. In our earlier opinion, we referred to the Retirement Savings Plan as "a H.R. 10 Plan (Keogh Plan)" because this was the name used by the parties for this plan. See, e.g., Doc. 163, p. 38. Our previous acceptance of this label does not preclude our present finding that the Keogh exception does not apply to Simpson regarding the Retirement Savings Plan. Keogh plans are intended to cover self-employed individuals and owner-employees. 26 U.S.C. § 401(c). A Keogh plan, however, may cover both partners and employees. Where it does, only the latter receives ERISA protection. 29 C.F.R. § 2510.3-3(b); see Fugarino v. Hartford Life and Accident Insurance Co., 969 F.2d 178, 186 (6th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1401, 122 L.Ed.2d 774 (1993). For the reasons expressed in our earlier opinion finding Simpson to be an employee (Doc. 188), the Retirement Savings Plan is not exempt from ERISA coverage.
Ernst & Young also contends that the Ernst & Young Plan is a "top hat" plan, exempt from ERISA's vesting, funding, and fiduciary responsibility provisions. Therefore, Simpson "obtains no greater rights than those under the terms of [the Ernst & Young Plan]." (Doc. 246, p. 5).
ERISA Part 2, entitled Participation and Vesting (29 U.S.C. §§ 1051 to 1061), ERISA Part 3, entitled Funding (29 U.S.C. §§ 1081 to 1086), and ERISA Part 4, entitled Fiduciary Responsibility (29 U.S.C. §§ 1101 to 1114) do not apply to pension plans maintained "primarily ... for a select group of management or highly compensated employees." 29 U.S.C. §§ 1051(2), 1081(a)(3), *816 1101(a)(1). To qualify as a "top hat" plan, there must be a significant disparity between the average compensation of the top hat group and the average compensation of all other employees. Belka v. Rowe Furniture Corp., 571 F.Supp. 1249 (D.Md.1983).
Although Simpson's 1990 salary was $194,092, this alone does not mean he was highly compensated when compared to the average compensation of Ernst & Young employees. In an earlier proceeding in this case, Miles testified that his 1990 salary was $580,000, almost three times Simpson's salary. (Doc. 144, p. 292). Some partners in the firm received salaries approaching $800,000. (Doc. 207, p. 1073). Although Simpson was a CPA, he was not an office manager. Many parties covered by the Ernst & Young Plan were non-managerial CPAs, serving an audit function. Since no evidence was presented as to the average compensation of all employees covered by the Ernst & Young Plan, it is not possible to tell whether they were all highly compensated employees. See Belka, 571 F.Supp. at 1252-53. Thus, we find that the Ernst & Young Plan does not fall into the "top hat" exemption. Assuming, arguendo, that it is a "top hat" plan, it would not be exempt from Part 5, entitled Administration and Enforcement, which includes §§ 1140 and 1132, the sections under which Simpson has brought his ERISA claim. See supra, p. 815. It would also not be exempt from Part 1, entitled Reporting and Disclosure, which includes §§ 1024 and 1025, the other ERISA sections on which Simpson bases his claim. Id.
For all the above reasons, the four plans in question are ERISA plans.
II. Simpson Is A Participant In The Ernst & Young Plan
Ernst & Young contends that Simpson was not a participant in the Ernst & Young Plan because he never satisfied the eligibility requirements.
A participant is "any employee ... who is or may become eligible to receive a benefit of any type from an employee benefit plan...." 29 U.S.C. § 1002(7). Thus, an ERISA plan participant does not have to be presently eligible to receive plan benefits. The fact that Simpson had not yet attained the age or years of service requirements does not mean that he was not a participant. To hold otherwise would limit ERISA protection only to those who have already vested or have obtained nonforfeitable rights to pension benefits.
Ernst & Young also contends that our finding that Simpson was an employee precludes him from eligibility under the Ernst & Young Plan since eligibility is predicated on admission to the partnership. This argument has no merit. Ernst & Young did not cite the section of the Ernst & Young Plan setting forth this requirement. Furthermore, the Ernst & Young Plan is embodied in the U.S. Agreement, which was carefully drafted to apply to "Parties," rather than to "Partners." Also, the Ernst & Young Plan provided retirement income to both "Capital Account Parties" (CPAs) and to "Investment Account Parties" (non-CPAs), the latter being specifically excluded as Partners from the Ernst & Young Partnership Agreement. Thus, the Ernst & Young Plan contemplates payment of retirement income to non-partners. Even if the plan applies only to partners, Simpson was denominated a partner, although we have found him and other partners to meet the legal definition of "employee."
III. Simpson Has Shown By A Preponderance Of The Evidence That Interference With Attainment Of His Pension Benefits Was A Determining Factor In Ernst & Young's Discharge Decision
Ernst & Young contends that Simpson has failed to prove that it acted with the specific intent to interfere with his pension benefits when it made the discharge decision. In support of its contention, Ernst & Young argues that there was not sufficient proximity between the discharge decision date and the dates when Simpson would have vested in the retirement plans. Ernst & Young also contends that Simpson's discharge resulted in no present economic savings.
*817 The evidence of Ernst & Young's prohibited conduct for the purpose of interfering with Simpson's attainment of ERISA rights, see infra, pp. 820-821, establishes his prima facie case under § 1140. See Humphreys, 966 F.2d at 1043. Ernst & Young has met its burden of articulating legitimate, nondiscriminatory reasons for Simpson's discharge by contending it discharged Simpson because of an independence problem, poor performance, and poor attitude. Id.
Simpson has established by a preponderance of the evidence that Ernst & Young's articulated reasons for discharge are pretextual. At the jury trial on Simpson's ADEA claim, the jury found none of these reasons credible. For the following reasons, we agree.[7]
Ernst & Young contended during the trial that Simpson was discharged because of an independence problem regarding Simpson's personal loans from a lending institution that became an Ernst & Young client as a result of the merger. Ernst & Young went to great lengths, including calling an expert witness, to convince the jury that this independence issue was a substantial problem regarding Simpson's performance. Despite a contemporaneous memorandum from Hill to Boland outlining the alleged independence problem,[8] the undisputed evidence shows that after Ernst & Young investigated the matter, Management Committee Member Boland advised Simpson that his loans did not present an independence problem. Thus, Simpson was exonerated regarding the independence issue before he was discharged. See Boland testimony, Doc. 218, p. 1761. The extent to which Ernst & Young attempted to expand this matter into a critical performance issue that warranted Simpson's discharge indicates that it was concealing the true motive for discharge.
Ernst & Young also contended at trial that Simpson was discharged because he had an inadequate number of billable hours, failed to cooperate in the investigation of the alleged independence problem, entered into a poor lease arrangement for the Arthur Young office, and spent too much of the firm's money on marketing and client development.
Ernst & Young attempted to portray Simpson as a disgruntled worker who was unhappy with his demotion from the position of Cincinnati Managing Partner. Simpson had once before been subjected to a demotion as a result of a merger. When KMG/MH merged with Arthur Young, Simpson lost his Managing Partner position. He quickly regained it. Thus, Simpson was familiar with merger politics, and the fact that he may not have been pleased with his demotion resulting from the Ernst & Young merger is not a measure of his performance.
After the merger, Simpson was granted a "unit increase," which is an indicator of good performance. As of December 1989, Simpson's salary was increased 17% over the prior year. Such an increase is substantial and not merely a cost of living increase. It indicates that Simpson's superiors at Ernst & Young viewed his performance as more than acceptable.
Management Committee Chairman Miles was unaware of any alleged performance problems when he voted to discharge Simpson. (Doc. 207, p. 1054). Nor is there evidence that any other Management Committee members save Boland were aware of alleged performance problems when they voted to discharge Simpson. Had such problems been the basis for Simpson's discharge, one would expect to find a memorandum *818 from Boland, Simpson's Regional Supervisor, to the Management Committee detailing the problems and recommending discharge. No such document was introduced. Furthermore, Ernst & Young produced no evidence that it had formally evaluated Simpson's performance and/or found it lacking. Ernst & Young did not have an evaluation procedure in place when Simpson's discharge decision was made.
The Management Committee had available to it performance evaluations reflecting Simpson's tenure at Arthur Young, but did not review them before discharging him. This indicates they were not concerned with performance when they made their discharge decision. Simpson's Arthur Young evaluations were all favorable. His apt performance at Arthur Young is also shown by his promotion to Arthur Young Cincinnati Office Managing Partner.
Ernst & Young's proffered reason is also contradicted by the testimony of their own expert witness, economist Julia Lane. She testified that when a firm makes a decision to discharge a partner, labor economics theory and experience indicate that the discharge decision is based on productivity; i.e., whether the employee is producing more or less than he is costing the firm. To make this determination, it is very important to review the worker's performance evaluations. (Doc. 212, p. 1353). Workers are not likely to be discharged during their first year, because the firm is in the process of determining whether the individual can adequately perform the job and will provide him a reasonable opportunity to do so. (Id. at p. 1367). According to Dr. Lane's prognostication, a worker is most likely to be discharged during the tenth year of employment with a given employer and least likely to be discharged during the first year. (Doc. 212, p. 1370). Ernst & Young had employed Simpson for less than a year when it discharged him.[9] It is most likely that Ernst & Young decided to discharge Simpson at the February 21, 1990 Management Committee meeting (see review of documentary evidence, supra, p. 811), which was less than four months after he began working for Ernst & Young and only two months after he received a substantial salary increase.[10] Ernst & Young rendered its discharge decision, at the latest, in May 1990, only seven months after the merger and only five months after Simpson received a substantial salary increase. Dr. Lane's testimony demonstrates that Simpson's discharge was contrary to her theory of normal business practice.
Supporting our view of Dr. Lane's testimony is the fact that Simpson was required to formally set his 1990 goals in December 1989, yet he was discharged before half the year had elapsed. He was not given a reasonable time to meet the goals set. This indicates that Simpson was discharged for some reason other than failing to meet his performance goals.
Prior to his May 22, 1990 conversation with Boland, at which time he was asked to resign, Simpson had not been informed of any performance problems and given a chance to offer an explanation or take corrective action. On May 22, 1990, Simpson returned to his office after a coffee break to find Boland sitting there. Boland got up, closed the door, and asked Simpson to resign. Simpson testified that Boland's conduct completely surprised him. In view of Ernst & Young's acknowledged policy to give their workers an opportunity to correct performance problems, Ernst & Young's failure to even warn Simpson and give him a chance to improve his performance makes it unlikely that performance had anything to do with Simpson's discharge. Simpson was not a clerical worker, but a CPA with many years of experience. He was specialized in representing entrepreneurial businesses. As such, *819 the firm had an investment in Simpson. If performance was really an issue, it would be much more likely that management would take steps to improve Simpson's performance rather than summarily discharge him.
The validity of Ernst & Young's proffered reason for discharging Simpson is also called into question by the absence of any contemporaneous record of the date the decision was made or the reasons therefor. The undated Ernst & Young Management Committee document memorializing Simpson's discharge gives no reason for his discharge, performance or otherwise. Hill's September 1990 memorandum, purporting to list several reasons for Simpson's discharge, came after Simpson filed an EEO complaint and must be considered self serving. Common sense dictates that in the case of a legitimate discharge decision, documentation would be made contemporaneously with the discharge decision, not four to seven months later. The lack of documentation surrounding Simpson's discharge by the self-proclaimed world's largest accounting firm, which constantly relies on documentation in performing its daily functions, is highly unusual.
Through Boland's testimony at trial, Ernst & Young presented reasons for discharging Simpson that had not previously been asserted during discovery. This suggests that Ernst & Young invented such reasons sometime after discovery concluded. At trial, Boland claimed Simpson's performance at Arthur Young in 1986 was poor. Boland also testified that conversations he had with others about Simpson before the merger and before he even met Simpson influenced his decision that Simpson be discharged. (Doc. 218, pp. 1586-87). In his deposition, however, Boland testified that an individual's performance before the October 1989 merger was not relevant to him insofar as it related to his evaluation of that individual. (Doc. 218, p. 1589).
Boland's testimony as to the reasons for Simpson's discharge conflicted with that of Management Committee Chairman Miles and Cincinnati Managing Partner Hill. Boland testified that Simpson was "absolutely not" discharged because of the general need to reduce partners as a result of the merger. He claimed Simpson was discharged for his poor attitude and poor performance. (Doc. 218, p. 1686). In direct contrast, Miles testified that Simpson was discharged as part of a nationwide reduction in force due to the overall economic situation faced by the newly merged firm. (Doc. 207, pp. 1025-26, 1056). In further contrast, Hill testified that Simpson was discharged primarily because his charge hours were low (Doc. 209, p. 1139) and because of a local economic recession in the Cincinnati, Ohio area. (Doc. 209, p. 1141, 1246-47).
The testimony of Miles, Boland, and Hill also conflicted on the subject of who made the decision to discharge Simpson. Hill initially claimed that he decided to discharge Simpson (Doc. 209, p. 1111), but later acknowledged he had no authority to make such a decision. (Doc. 209, p. 1271). Hill also claimed that he recommended Simpson's discharge to Boland. (Doc. 209, p. 1138). Boland testified that he made his own decision to discharge Simpson. (Doc. 218, p. 1671). There was no documentation that Boland made a discharge decision, nor was there any evidence that he presented his asserted discharge decision to the Management Committee for approval. Miles testified that the Management Committee decided to discharge Simpson. He said Simpson was discharged along with many others as part of a general economic lay off. (Doc. 207, p. 1083).
Miles' testimony that Simpson and others were discharged for economic reasons is credible to the extent that it appears most likely that economic reasons motivated Ernst & Young's discharge of older partners in order to lessen its salary and future pension obligations. That conclusion is supported by the contemporaneous documentary evidence. (Def.Tr.Ex. 582). Boland and Hill, on the other hand, were impeached numerous times by their prior statements and other contradictory evidence, and no contemporaneous documentary evidence supports their testimony. We do not credit Miles' conclusory denials of age discrimination and ERISA violations for the reasons set forth herein.
The startling inconsistencies in the testimony of the three superiors directly involved *820 in Simpson's discharge undoubtedly influenced the jury, as it does the Court, in finding that the legitimate reasons these witnesses proffered are not credible.
Thus, Simpson has shown by a preponderance of the evidence that the discharge reasons proffered by Ernst & Young based on Simpson's performance and attitude either had no basis in fact or did not actually motivate his discharge. See Manzer, 29 F.3d at 1083-1085. Therefore, there exists a permissive inference that Ernst & Young discharged Simpson for the purpose of interfering with his ERISA protected rights. See id. at 1083, explaining St. Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The lack of any notification to Simpson of his alleged performance problems shows that Simpson had no way of knowing the firm was contemplating his discharge. Because only Ernst & Young knows the real reason behind Simpson's discharge, the pretext finding is more significant than it might be in a case where both sides had access to that information. We find Ernst & Young's proffered explanations to be so unworthy of belief as to allow the permissive inference, together with the evidence of a prima facie case, to support a judgment in Simpson's favor. See id.
In addition, we now look to the evidence surrounding Simpson's discharge to determine whether a preponderance of the evidence shows that ERISA violations motivated the discharge.
It is more likely than not that the decision process to lay off partners began in December 1989. The December 18, 1989 Management Committee agenda includes a list of former Arthur Young and Ernst & Whinney partners by age, showing the total number of years with each respective firm and the total number of years as a partner. These are items considered in determining whether a participant has reached the vesting requirements for the Defined Benefit Plan, Retirement Savings Plan, and Ernst & Young Plan. The February 21, 1990 Management Committee agenda addresses "Partner resignations and retirements" and, in that regard, included a table entitled "Comparison of Partner Ages 1990." Age is one factor in determining whether a participant has reached the vesting requirements of the Ernst & Young Plan.[11] Neither Miles, the Management Committee Chairman, nor Boland, a Management Committee Member, could offer a legitimate explanation of what use the Management Committee made of these figures. (Doc. 207, p. 1053; Doc. 218, p. 1736).
It is significant that the tabular breakdown of the individuals by age and years of service was attached to the December 1989 agenda under the heading "Partner movement and retention" rather than the heading "Partners Pension Plan status report." What is equally significant is what is not attached to either the December 1989 or February 1990 agendas. If the Management Committee had been making discharge decisions based on legitimate business reasons, such as employee productivity, billable hours, client base, and/or revenue production, it would be expected that such information, including performance evaluations, would have been attached to the agendas with regard to the topics of "Partner movement" or "Partner resignations." See Nemeth v. Clark Equipment Co., 677 F.Supp. 899, 905 (W.D.Mich. 1987). Had such been the case, Ernst & Young would have had a more compelling argument that the effect on Simpson's retirement benefits was merely incidental.
This evidence, coupled with the existence of a $290,000,000 unfunded future pension obligation and economic expert Harvey Rozen's testimony as to the resulting savings to Ernst & Young, see infra, p. 822, indicates that, in addition to age, interference with the attainment of retirement benefits was a motivating factor in Ernst & Young's discharge decisions. This evidence also indicates that Ernst & Young's decision to discharge *821 Simpson was made with the specific intent to interfere with Simpson's attainment of pension benefits in the Defined Benefit Plan, Retirement Savings Plan, and Ernst & Young Plan. See also Gavalik, 812 F.2d at 854; Pennachio v. Farrell Lines, Inc., 85 Civ. 6953, 1987 WL 26796, at *5 (S.D.N.Y. Nov. 25, 1987).
Because Simpson had a vested right to receive payment from the UBT Account, Ernst & Young's discharge decision was not made with the specific intent to interfere with Simpson's attainment of those retirement benefits. Subsequently, however, after telling him the calculated amounts were binding on the parties, Ernst & Young withheld from Simpson funds payable to him under that retirement plan. Ernst & Young's withholding of money from Simpson's UBT Account payments supports an inference of mendacity on Ernst & Young's part. See Hicks, ___ U.S. at ___, 113 S.Ct. at 2749.
A. Ernst & Young's Contention That There Is Insufficient Proximity Between The Discharge Date And The Vesting Date Is Not Persuasive
Ernst & Young contends there was not sufficient proximity between the discharge date and the dates when Simpson would have vested in the retirement plans to support a causal connection between Simpson's discharge and his retirement plans.
The discharge decision was made known to Simpson in May 1990, effective December 1990. Simpson was then already vested in the UBT Account; therefore, his discharge did not affect the attainment of his rights thereto. He would have vested in the Defined Benefit Plan or Retirement Savings Plan after five years of combined service with Arthur Young and Ernst & Young, in December 1991. Thus, his discharge came one year before he vested in two of the plans. This is sufficiently proximate, combined with the other evidence, to warrant an inference of intent to violate ERISA. At the earliest, Simpson would have vested in the Ernst & Young Plan at the age of 58 and after 15 years of service, in December 2001. The time differential between Simpson's discharge and his vesting date in the Ernst & Young Plan is too lengthy to alone support an inference of intentional interference with pension rights. However, the ability to substantially reduce the $290,000,000 pension obligation shortfall on Ernst & Young's financial statements demonstrates an immediate economic benefit the firm achieved by discharging Simpson and others. In other words, it is not time between discharge and the Ernst & Young Plan vesting date that supports an inference of an ERISA violation, but rather the proximity between the discharge date and the reduction of future pension benefit obligations
Assuming, arguendo, that Simpson showed insufficient proximity between the date of the discharge decision and the vesting dates, see e.g., Humphreys, 966 F.2d at 1044, this is not fatal to his claim. Although proof of proximity is circumstantial evidence of intent, lack of proximity does not preclude Simpson from offering other evidence, both direct and circumstantial, of Ernst & Young's intent, which he has done. See e.g., Gavalik, 812 F.2d at 834.
Garrett v. Detroit Edison Co., No. 86-1257, 1988 WL 12208 (6th Cir. Feb. 16, 1988), Clement v. Madigan, 820 F.Supp. 1039 (W.D.Mich.1992), and Brown v. ASD Computing Center, 519 F.Supp. 1096 (S.D.Ohio 1981), cited by Ernst & Young, are distinguishable because they address the period between the employee's protected activity and the employer's retaliatory action, rather than the period between the discharge decision and the vesting date.
In Humphreys, the fact that the employee was discharged two months before his vesting date, coupled with a resulting general economic savings to the employer, was not enough to sustain the employee's claim in the face of the fact that the mine that the employee had managed was sold and the fact that he was perceived as not being a "company man", which the Sixth Circuit found to be legitimate reasons for the discharge decision. What was fatal to the employee's claim in Humphreys was that he failed to show a causal link between his pension benefits and the discharge decision. Humphreys, 966 F.2d at 1044. In contrast, Simpson has *822 shown that in the several months before his discharge and that of other employees, the Management Committee was reviewing its employees' status based upon their eligibility requirements for vesting in the retirement plans, rather than for legitimate business reasons. The discharge of these employees resulted in an immediate reduction of future pension benefit obligations, permitting Ernst & Young to show a more favorable picture in its financial statements.
B. Ernst & Young's Contention That Simpson's Discharge Resulted In No Present Economic Savings Is Not Persuasive
Ernst & Young contends that Simpson's discharge resulted in no present economic savings, thus precluding his ERISA claim. This contention has no factual or legal basis.
Ernst & Young cites no caselaw in support of its position. Proof of specific intent to interfere with the attainment of pension benefits constitutes an ERISA violation, whether or not the interference is successful and whether or not the employee would have received the benefit absent the interference. Gavalik, 812 F.2d at 851-52, citing Zipf v. American Telephone and Telegraph Co., 799 F.2d 889, 893 (3rd Cir.1986). This is evidenced in the language of § 1140, which forbids certain conduct taken for the purpose of interfering with the attainment of any right to which the participant may become entitled. Zipf, 799 F.2d at 893. Thus, to prevail, it is not necessary for Simpson to show that Ernst & Young's decision to discharge him and 119 others resulted in an actual reduction of the firm's $290,000,000 unfunded future retirement plan obligation that existed in October 1989. It is sufficient to show that Ernst & Young intended to reduce its pension obligations.
Nevertheless, the average savings to Ernst & Young per person terminated was $45,702, which resulted in an annual savings of $5,484,240. Economist Harvey Rozen testified that this annual savings directly reduced the amount of the unfunded retirement obligation, since the base for calculating retirement benefits under the Ernst & Young Plan was the average of the retiree's three highest years' salary. The average age of the discharged partners was 44.8 as compared to the average age of 37.5 for newly admitted partners. Based on this, Dr. Rozen testified that Ernst & Young reduced the present value of its retirement obligation by postponing the date upon which such benefits would be paid.
We are also not persuaded by Ernst & Young's contention that had interference with the attainment of pension rights been a motivating factor, it would have selected more partners for discharge who had not yet vested in the retirement plans. The facts do not support this contention; while only 10.8% of the discharged partners were not vested in the Defined Benefit and Retirement Savings Plans, a very substantial majority of the discharged partners were not vested in the Ernst & Young Plan.
This finding is not intended to have a chilling effect on an employer's ability to analyze its economic situation, including its present and/or future pension obligations. Employers must be able to discharge employees for economic reasons. Employers must be able to review their future pension obligations to insure that they may be fulfilled. But when an employer discharges an employee with the specific purpose of preventing that employee from receiving pension benefits, the employer violates ERISA.
IV. The Favorable Jury Verdict On Simpson's Age Discrimination Claim Does Not Bar His ERISA Claim
Ernst & Young contends that Simpson's ERISA claim is barred by the prior jury verdict that he was discharged by Ernst & Young because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Ernst & Young contends that since the jury was instructed in the ADEA trial that they must find in Simpson's favor if they find by a preponderance of the evidence that Ernst & Young would not have discharged Simpson but for his age, that the jury already ruled that age was the determining factor in his discharge, therefore precluding any other determining factor.
*823 Ernst & Young's argument is disingenuous. The pertinent jury instruction was as follows:
In this case, it's undisputed that the Plaintiff was in the protected age group and he was discharged by the Defendant. You must decide whether Plaintiff's age was a "determining factor" in Defendant's discharge decision. Although there may be more than one factor involved in the decision to discharge him, Plaintiff is nevertheless entitled to recover if age was a determining factor. In other words, if you find by a preponderance of the evidence that Defendant would not have discharged Plaintiff but for his age, you must find for Plaintiff. If Plaintiff has failed to prove his age was a determining factor in his discharge, you must find for Defendant.
To find in favor of Simpson, the jury did not have to find that age was the determining factor, only that age was a determining factor. Thus, there may have been more than one determining factor in Ernst & Young's discharge decision. See Hazen Paper Co. v. Biggins, ___ U.S. ___, ___, 113 S.Ct. 1701, 1707, 123 L.Ed.2d 338 (1993). Therefore, the fact that Simpson prevailed on his age discrimination claim against Ernst & Young does not preclude his ERISA claim.
Furthermore, to accept Ernst & Young's argument would be tantamount to a finding that the "but for" instruction given to the jury at the behest of Ernst & Young was improper. This we will not do. The Sixth Circuit has used the "a determining factor" and "but for" concepts interchangeably; the two instructions are not different in any substantive way. Cooley v. Carmike Cinemas, 25 F.3d 1325 (6th Cir.1994).
V. Simpson Has Shown By A Preponderance Of The Evidence That He Was Discharged In Retaliation For Inquiring Into His Retirement Benefits
Regarding Simpson's retaliation claim, Ernst & Young contends that Simpson's letters address items to which he was not entitled under the terms of any of the retirement plans. Specifically, Ernst & Young contends that Simpson was asking only for a hypothetical calculation concerning his UBT Account, which was something "outside" the retirement plans. We have already determined that the UBT Account is an ERISA plan. See supra p. 815. Ernst & Young contends that Simpson's complaints about what a retirement plan did or did not provide is not equivalent to exercising a right under a retirement plan. Ernst & Young also contends that Simpson's letters did not relate to rights under ERISA's subchapter I.
The evidence that Simpson engaged in protected activity which caused his discharge, see infra, pp. 824-825, establishes his prima facie case of retaliation under § 1140. See Rath, 978 F.2d at 1090. Ernst & Young met its burden of articulating legitimate, nondiscriminatory reasons for Simpson's discharge. See supra, pp. 817-818.
Simpson has established by a preponderance of the evidence that Ernst & Young's articulated reasons are pretextual.
ERISA's § 1140 prohibits the discharge of a participant for exercising any right to which he is entitled under a retirement plan or under subchapter I, 29 U.S.C. §§ 1001 thru 1145. Thus, we must examine ERISA's statutory provisions in addition to the specific retirement plan provisions in determining Simpson's retaliation claim. See Pennachio, 1987 WL 26796 at *4.
Pursuant to 29 U.S.C. § 1024(b)(1), the plan administrator must provide to each participant "all modifications and changes" to an ERISA plan. Pursuant to 29 U.S.C. § 1024(b)(4),
The administrator shall, upon written request of any participant ... furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.
Pursuant to 29 U.S.C. § 1025(a), a plan participant has a statutory right to inquire into the benefits available to him under an ERISA plan. This section provides:
Each administrator of an employee pension benefit plan shall furnish to any plan *824 participant or beneficiary who so requests in writing, a statement indicating, on the basis of the latest available information (1) the total benefits accrued, and (2) the nonforfeitable pension benefits, if any, which have accrued, or the earliest date on which such benefits will become nonforfeitable.
The plan administrator is also required to provide computations to support the amount stated upon a plan participant's request. Bartling v. Fruehauf Corp., 29 F.3d 1062 (6th Cir.1994); Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit Plan and Trust Agreement, 822 F.Supp. 247 (E.D.Pa.1993), reversed on other grounds, 24 F.3d 1491 (3rd Cir.1994). Individualized reporting and disclosure play an important role in effecting ERISA's goals and replaces the limited disclosure provisions of the prior Welfare and Pension Plan Disclosure Act. Barrowclough v. Kidder, Peabody & Co., Inc., 752 F.2d 923, 933-34 (3rd Cir.1985), overruled on other grounds by Pritzker v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110 (3rd Cir.1993). The broad disclosure interest protected is the ability of a participant to effect his financial planning. Id. Disclosure should be favored where it will help participants understand their rights. Bartling, 29 F.3d at 1069.
Simpson's letters and the responses thereto show that his inquiries were not limited to questions involving the UBT Account. Simpson was making a comparison between his expected retirement benefits before and after the merger; only one factor in that comparison was the UBT Account value. Simpson's dialogue with the Management Committee began with a request on behalf of himself and two others that they be granted credit for their prior years service with KMG/MH. Simpson subsequently requested that "someone calculate what our retirement benefits, including our UBT values, would have been under the former [Arthur Young] plan and the E & Y plan." Simpson also asked for the "difference in our vesting between the former [Arthur Young] plan and E & Y plan."
Simpson's requested information was the type of individualized reporting that ERISA sought to provide for participants to enable them to do their financial planning. Barrowclough, 752 F.2d at 933-34. This was squarely an inquiry as to the benefits available to him under an ERISA plan, including a calculation of those benefits and a request for information as to a modification in his retirement benefits. Furthermore, Simpson's expressed concern that "to spend 27 years as a partner and not receive 100% retirement benefits just is not fair" is one evil ERISA seeks to protect against; i.e., employees with long years of service losing retirement benefits due to lack of vesting. 29 U.S.C. § 1001(a). Simpson had the right to request and receive this information under ERISA. 29 U.S.C. §§ 1024(b), 1025(a). Simpson also had a right to request and receive this information independent of Ernst & Young's representation that post-merger retirement benefits would be better than pre-merger retirement benefits.
Ernst & Young contends that information provided to Simpson before the merger satisfied their obligation under §§ 1024(b) and 1025(a) and that the Management Committee's responses provided Simpson with all the information to which he was due. The facts do not support this contention. When Simpson pressed the issue, still having unresolved questions and concerns, the Management Committee Chairman stated that "he did not wish to write further on this subject" and another Management Committee member told him to "call it a day" on the issue. Furthermore, the adequacy of Ernst & Young's response is not determinative of the issue whether Simpson was discharged in retaliation for his inquiries. To hold otherwise would defeat the purpose of § 1140, as it would allow the unscrupulous employer to discharge employees with full impunity so long as the employer adequately responded to the request that triggered the discharge.
The two cases cited by Ernst & Young in support of its position are distinguishable. In Rush v. McDonald's Corp., 966 F.2d 1104 (7th Cir.1992), the plaintiff did not claim that she was discharged because of inquiries as to her retirement benefits. In Fischer v. Doremus & Co., No. 83 C 8214, 1985 WL 9495 (N.D.Ill. Feb. 4, 1985), the employee's "complaints" *825 were found to have no reasonable basis. In the present action, Simpson's inquiries had a reasonable basis. Had they not, they would not have been presented to the Chairman by Management Committee member Schornack.
In view of the above, we find that Simpson was engaged in activity protected by ERISA. We now turn to the issue of whether Simpson's inquiries were a motivating factor in Ernst & Young's discharge decision.
There are several indicia that Simpson was discharged because of his inquiries. All of Simpson's pension inquiries were made before his discharge. Several members of the decision-making body, including Miles, Boland, and Schornack, were aware of Simpson's inquiries at the time they voted to discharge him. At the time of the discharge vote, Miles was aware that Simpson was not vested in any of the retirement plans, except the UBT Account. It is also reasonable to infer that Boland was aware of this fact, because he received Miles' December 1989 letter noting Simpson's vesting date for the Defined Benefit and Retirement Savings Plans. Miles testified that Simpson was the only individual who approached him on this issue. This testimony discounts Ernst & Young's contention that others who inquired, i.e., Hindman and Fritz, were not discharged. There was no evidence that Hindman or Fritz made any direct inquiries on this issue. Schornack testified that others in the same position as Simpson who did not make such inquiries were not discharged, but these people were never identified. Hill testified that he recommended Simpson for discharge due to his unhappiness with the merged firm, as reflected by Simpson's retirement inquiries. The closing paragraph in Miles' December 1989 correspondence suggests that he thought Simpson's inquiries were irksome. Finally, as set forth in Section III supra, pp. 819-821, the several reasons advanced by Ernst & Young for Simpson's discharge based on his performance and attitude are pretextual. Taken together, Simpson has shown that it is more likely than not that his inquiries into his retirement benefits was a motivating factor in Ernst & Young's decision to discharge him. See Rath, 978 F.2d at 1090.
VI. ERISA Does Not Provide For Compensatory Or Punitive Damages
Simpson seeks lost retirement benefits as well as compensatory and punitive damages. In the context of ERISA, compensatory and punitive damages are often referred to as extracontractual damages, not being available under the terms of a benefit plan. E.g., Gaskell v. Harvard Cooperative Society, 762 F.Supp. 1539 (D.Mass.1991), vacated on other grounds, 3 F.3d 495 (1st Cir. 1993). Ernst & Young contends that Simpson is limited to the relief provided in 29 U.S.C. § 1132(a), which provides only for equitable, not legal, remedies.
There are two sections of § 1132(a) which may apply to Simpson:
A civil action may be brought by a participant ... to recover benefits due him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.
29 U.S.C. § 1132(a)(1)(B).
A civil action may be brought by a participant ... (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.
29 U.S.C. § 1132(a)(3).
The language of § 1132(a)(1)(B) is limited to the recovery of benefits under the terms of the plan. Because none of the retirement plans provide for compensatory or punitive damages, Simpson cannot obtain these damages under § 1132(a)(1)(B). See Medina v. Anthem Life Insurance Co., 983 F.2d 29, 31 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 66, 126 L.Ed.2d 35 (1993); Harsch v. Eisenberg, 956 F.2d 651 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 61, 121 L.Ed.2d 29 (1992); Reinking v. Philadelphia American Life Insurance Co., 910 F.2d 1210 (4th Cir.1990), overruled in part on other *826 grounds by Quesinberry v. Life Insurance Co. of North America, 987 F.2d 1017, 1030 (4th Cir.1993) (en banc).
The remaining issue is whether extracontractual damages may be awarded as "other appropriate equitable relief" under § 1132(a)(3).
In Massachusetts Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), the Supreme Court held that a plan fiduciary could not be held personally liable under § 1109 for extracontractual damages caused by improper claims processing. ERISA § 1109 provides that a fiduciary who breaches any of his responsibilities shall be subject to such "other equitable or remedial relief" as the court deems appropriate. Although this language is very similar to "other appropriate equitable relief" language in § 1132(a)(3), because the plaintiff relied on § 1109 and expressly disclaimed reliance on § 1132(a)(3) the Supreme Court said that it had "no occasion to consider whether any other provision of ERISA authorizes recovery of extra-contractual damages." Russell, 473 U.S. at 139, n. 5, 105 S.Ct. at 3088, n. 5. Nevertheless, the Court stated that "the six carefully integrated civil enforcement provisions found in § 502(a) ... provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." Id. at 146, 105 S.Ct. at 3092.
Prior to the decision of the Supreme Court in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), the United States Courts of Appeals were virtually unanimous that extracontractual damages were not available under § 1132(a)(3). O'Neil v. GenCorp, Inc., 764 F.Supp. 833, 835 (S.D.N.Y.1991) citing Drinkwater v. Metropolitan Life Insurance Co., 846 F.2d 821 (1st Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988); Powell v. Chesapeake & Potomac Telephone Co. of Virginia, 780 F.2d 419 (4th Cir.1985), cert. denied, 476 U.S. 1170, 106 S.Ct. 2892, 90 L.Ed.2d 980 (1986); Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1465 (5th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 837 and 479 U.S. 1089, 107 S.Ct. 1298, 94 L.Ed.2d 154 (1987); Varhola v. Doe, 820 F.2d 809, 817 (6th Cir.1987); Kleinhans v. Lisle Savings Profit Sharing Trust, 810 F.2d 618, 627 (7th Cir.1987); Sokol v. Bernstein, 803 F.2d 532, 534 (9th Cir.1986); United Steelworkers of America v. Connors Steel Co., 855 F.2d 1499 (11th Cir.1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1568, 103 L.Ed.2d 935 (1989).
In Ingersoll-Rand, which involved a plaintiff seeking extracontractual damages of future lost wages, mental anguish, and punitive damages, the Supreme Court held that ERISA preempted a state common law claim that the plaintiff had been wrongfully discharged to prevent his attainment of benefits under an ERISA plan. 498 U.S. 133, 111 S.Ct. 478. The Supreme Court justified preemption in part on Congress's intent that § 1132(a)[12] provide the exclusive remedy for rights guaranteed under ERISA, including those set forth in § 1140. Id. at 143-144, 111 S.Ct. at 485-486. Drawing an analogy to the broad preemptive force of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, the Supreme Court noted that federal preemption in ERISA displaces all state law claims, "even when the state action purported to authorize a remedy unavailable under the federal provision." Id. at 144, 111 S.Ct. at 486, quoting Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 55, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987). Thus, although ERISA provides benefits to employees that were lacking at common law, it may also leave potential plaintiffs with less protection in some areas. See Mertens v. Hewitt Associates, ___ U.S. ___, ___, 113 S.Ct. 2063, 2071, 124 L.Ed.2d 161 (1993).
Simpson contends that the final paragraph in the Ingersoll-Rand opinion conclusively establishes that legal remedies, including compensatory and punitive damages, are available under ERISA:
The preceding discussion also responds to the Texas court's attempt to distinguish *827 this case as not one within ERISA's purview. Not only is § 502(a) the exclusive remedy for vindicating § 510-protected rights, there is no basis in § 502(a)'s language for limiting ERISA actions to only those which seek "pension benefits." It is clear that the relief requested here is well within the power of the federal courts to provide. Consequently, it is no answer to a pre-emption argument that a particular plaintiff is not seeking recovery of pension benefits.
498 U.S. at 145, 111 S.Ct. at 486.
We disagree with Simpson's interpretation. The six extensive and detailed civil enforcement provisions of ERISA, of which § 1132(a)(3) is a part, are strong evidence that Congress did not intend to provide remedies that it did not expressly incorporate. Russell, 473 U.S. at 146, 105 S.Ct. at 3092, cited in Pilot Life, 481 U.S. at 54, 107 S.Ct. at 1556 and Ingersoll-Rand, 498 U.S. at 144, 111 S.Ct. at 485. To be meaningful, the provision for equitable relief must mean something less than all relief. Mertens, ___ U.S. at ___, 113 S.Ct. at 2063. When Congress intended to afford a legal remedy, such as in ERISA § 1132(g)(2), it expressly provided for "legal or equitable relief." See Mertens, ___ U.S. at ___-___, 113 S.Ct. at 2069-70. See also Lorillard v. Pons, 434 U.S. 575, 583, 98 S.Ct. 866, 871, 55 L.Ed.2d 40 (1978). Furthermore, had the Supreme Court in Ingersoll-Rand intended to change the law, especially in view of its earlier decisions in Russell and Pilot Life, it would have done so more explicitly. Babich v. Unisys Corp., Civ.A. No. 92-1473-MLB, 1994 WL 167984 (D.Kan. Apr. 8, 1994); O'Neil, 764 F.Supp. 833; Gaskell, 762 F.Supp. 1539. See also Sprague v. General Motors Corp. 804 F.Supp. 931 (E.D.Mich.1992).
The United States Courts of Appeals that have addressed the Ingersoll-Rand paragraph have concluded that § 1132(a)(3) does not provide for extracontractual damages, Harsch v. Eisenberg, 956 F.2d 651 (7th Cir. 1992); McRae v. Seafarers' Welfare Plan, 920 F.2d 819 (11th Cir.) reh'g denied, 931 F.2d 901 (1991), even when the actions involve wrongful discharge and are brought under § 1140. Spinelli v. Gaughan, 12 F.3d 853 (9th Cir.1993).[13]
Prior decisions of this Court and the Sixth Circuit support a limitation on § 1132(a)(3) as providing only equitable remedies. In Miner v. Community Mutual Insurance Co., 778 F.Supp. 402 (S.D. Ohio 1991) (Rubin, J.), which involved the right to a jury trial on a claim for breach of fiduciary duty,[14] this Court recognized that Ingersoll-Rand had been interpreted by some district courts as establishing that legal remedies, including compensatory and punitive damages for mental anguish, are available under ERISA. Id. at 404. Nevertheless, this Court stated that it was bound by the law as interpreted by the Supreme Court and the Sixth Circuit, and found that the plaintiff was limited to an equitable remedy under § 1132 and had no right to a jury trial. Id. In Varhola v. Doe, 820 F.2d 809 (6th Cir.1987), which involved a § 1140 claim, the Sixth Circuit held that the statutory language and legislative history of § 1132(a)(3) prohibit the recovery of punitive damages, a type of extracontractual damages. 820 F.2d at 817.
The cases cited by Simpson in support of his interpretation of Ingersoll-Rand,[15] and other similar cases,[16] were all decided before Mertens v. Hewitt Associates, wherein the Supreme Court specifically addressed the meaning of "appropriate equitable relief" under § 1132(a)(3). ___ U.S. ___, 113 S.Ct. 2063. In Mertens, the Supreme Court held *828 that this section of ERISA did not authorize suits for money damages against nonfiduciaries who knowingly participated in a fiduciary's breach of fiduciary duty. The Supreme Court acknowledged its earlier Ingersoll-Rand decision that a broad interpretation of the ERISA preemption clause may result in less protection for some ERISA plaintiffs. Id. at ___, 113 S.Ct. at 2071. Thus, we interpret Mertens to close the door on whatever others may have read into the final paragraph of Ingersoll-Rand. See Spinelli, 12 F.3d at 857.
In view of the above, Simpson has no claim for compensatory or punitive damages under either § 1132(a)(1)(B) or § 1132(a)(3).
In light of our finding, it is not necessary to address Ernst & Young's contention that Simpson did not adequately set forth his request for punitive damages in his complaint.
VII. Simpson's Claim For A Statutory Penalty Is Precluded
At the June 24, 1994 hearing, for the first time in this case, Simpson requested relief under 29 U.S.C. § 1132(c), which provides for a penalty of up to $100 a day against a plan administrator who fails to comply with a participant's request for information. In his complaint, Simpson sought relief under 29 U.S.C. § 1132(a), and specifically cited language from 29 U.S.C. § 1132(a)(1)(B). He did not seek relief under § 1132(c). Cf. Daniel v. Eaton Corp., 839 F.2d 263, 265 (6th Cir.), cert. denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 52 (1988). Although § 1140 expressly states that the "provisions of section 1132 of this title shall be applicable in the enforcement of this section," this does not relieve Simpson of the duty to set forth his claims in his complaint. Nor did Simpson preserve or otherwise raise this claim in the pre-trial order. Under this Court's rule that the parties' claims and contested issues of law shall be set forth in the pre-trial order, this claim cannot now be pursued by Simpson at this stage of the proceeding.
In view of the above, it is not necessary to address Ernst & Young's contention that there is no evidence in the record that the proper party, i.e., the plan administrator, has been named in connection with this claim.
VIII. Attorney's Fees And Expense Issues Have Been Settled
The Court has been informed by the parties that they have settled the attorney's fees issues with regard to the age discrimination claim. Simpson has not claimed any additional attorney's fees relating to the ERISA claim.
IT IS THEREFORE ORDERED THAT:
1) Simpson be awarded ERISA damages in the amount of $712,529. Said damages are not to be added to the jury's age discrimination award, but rather are to be set off against it;
2) Simpson's claims for compensatory and punitive damages are DENIED; and
3) Simpson's 29 U.S.C. § 1132(c) penalty claim is DENIED.
NOTES
[1] UBT is an acronym for unbilled time and uncollected fees. It is an account receivable. Newly admitted Arthur Young partners purchased UBTs over an eight year period following their admission as partners.
[2] We do not draw a legal conclusion that Simpson was an Arthur Young partner. That issue and the facts relating to it were not before the Court. We accept the term as one used by the parties.
[3] Ernst & Young, through Boland's testimony, alleges that the discharge decision was made in April 1990. As explained infra, pp. ___-___, we find that testimony not credible. Boland testified during his deposition that he could not recall the discharge decision date (Doc. 218, p. 1716-17), and Ernst & Young presented no documentary evidence showing the decision date.
[4] Ernst & Young contends 89% of the discharged partners were not vested in the Ernst & Young Plan; Simpson contends the figure is 96.69%. Ernst & Young's figure is not verifiable. Simpson's figure is mathematically incorrect.
[5] In its verdict on Simpson's age discrimination claim, the jury found he had lost $421,747 in past retirement benefits and $290,782 in future retirement benefits. Ernst & Young did not challenge this determination in its briefs on the ERISA issues. The jury's findings are supported by the evidence, including the testimony of plaintiff's expert, Harvey Rosen.
[6] Simpson did not voluntarily jump from employer to employer; he was a steady worker who was employed at three different accounting firms because of acquisitions and mergers of the firms.
[7] In order to find in favor of Simpson on his age discrimination claim, the jury had to have found the reasons advanced by Ernst & Young to be pretextual. We agree with the jury's conclusion. In any event, we are bound by that jury finding regarding Simpson's ERISA claim. See Gutzwiller v. Fenik, 860 F.2d 1317, 1332 (6th Cir.1988).
[8] Hill appeared to be on a campaign to eliminate his former competitor, Simpson. After the merger was announced, but before it took place, Hill approached his Ernst & Whinney superior Boland to tell him that Simpson was not the type of person the firm wanted. (Doc. 212, p. 1560). Boland later chose Hill over Simpson as Cincinnati Managing Partner. Shortly after Hill and Simpson began working together, Hill raised the independence issue through the aforementioned memorandum. There is no evidence that the Management Committee was aware of any of this information when it voted to discharge Simpson.
[9] Dr. Lane placed Simpson in his fourth year of Ernst & Young employment, taking into account his prior Arthur Young service, and testified his discharge was consistent with her theory. We agree with the jury in rejecting this conclusion. It is more reasonable to consider Simpson to have been in his first year of Ernst & Young employment, because the merger placed him under the supervision of former Ernst & Whinney partners Hill and Boland, who were not familiar with Simpson's past performance.
[10] A February 21, 1990 discharge decision would have been made shortly after Miles' December 28, 1989 and Schornack's February 7, 1990 responses to Simpson's pension inquiries.
[11] Age, as a criterion for making a discharge decision, does not itself violate ERISA. However, when age is an eligibility requirement of a retirement plan, the use of age as a criterion for making a discharge decision, if found to be a motivating factor in the discharge decision, may result in an ERISA violation. See Hazen Paper Co. v. Biggins, ___ U.S. ___, ___, 113 S.Ct. 1701, 1707, 123 L.Ed.2d 338 (1993).
[12] Although the Supreme Court specifically addressed § 1132(a)(3) at one point in its opinion, it repeatedly referred to § 1132(a) in general.
[13] Some District Courts, however, have concluded § 1132(a) permits extracontractual damages. See infra, n. 15.
[14] The plaintiff in Miner alleged a breach of fiduciary duty. The Court interpreted §§ 1132(a)(1)(B) and 1132(a)(3) in order to determine whether a new trial was appropriate.
[15] Bittner v. Sadoff & Rudoy Industries, 490 F.Supp. 534, 536 (E.D.Wis.1980), Ursic v. Bethlehem Mines, 556 F.Supp. 571, 575 (W.D.Pa.), affirmed in part on other grounds, 719 F.2d 670 (3rd Cir.1983), International Union v. Midland Steel Products Co., 771 F.Supp. 860 (N.D. Ohio 1991), McDonald v. Artcraft Electrical Supply Co., 774 F.Supp. 29 (D.D.C.1991),
[16] Blue Cross & Blue Shield of Alabama v. Lewis, 753 F.Supp. 345 (N.D.Ala.1990), Haywood v. Russell Corp., 584 So.2d 1291 (Ala.1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264738/ | 744 A.2d 1000 (2000)
Stephanie A. STRASS, Appellant,
v.
KAISER FOUNDATION HEALTH PLAN OF MID-ATLANTIC, Appellee.
No. 96-CV-1122.
District of Columbia Court of Appeals.
Argued March 24, 1998.
Decided January 20, 2000.
*1002 James H. Heller, with whom Tracy L. Hilmer, Washington, DC, was on the brief, for appellant.
*1003 Paul C. Skelly, with whom Weatherly Lowe Bentley, Washington, DC, was on the brief, for appellee.
Before WAGNER, Chief Judge, and SCHWELB and REID, Associate Judges.
WAGNER, Chief Judge.
This case involves claims of breach of contract and wrongful termination of employment under the District of Columbia Human Rights Act, D.C.Code § 1-2512(a)(1) (1992) (Human Rights Act or the Act), which prohibits an employer from discharging an employee for discriminatory reasons, including physical handicap. After being terminated from her employment, appellant, Stephanie Strass, sued her former employer, Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. (Kaiser), alleging that her employment had been terminated because of her physical handicap, hypertension, in violation of the Human Rights Act and contract of employment. A jury returned a verdict in favor of Strass in the total amount of $525,047.00. The trial court set aside the verdict and granted judgment as a matter of law to Kaiser on both the breach of contract claim and violation of the Human Rights Act. The trial court concluded that Strass failed to prove that her physical condition could be accommodated reasonably. On the breach of contract claim, the court concluded that the evidence was insufficient to permit a jury to conclude that there was an express or implied agreement between Kaiser and Strass. Strass argues on appeal that the evidence and the law support the jury's verdict on both her theories of liability. We agree and reverse and remand for further proceedings consistent with this opinion.
I. Factual Background
In April 1988, Kaiser hired Strass as its Director of Public Affairs. Her job responsibilities included various public relations functions, such as writing publications for members, community relations, media relations, and special events. In addition, Strass was responsible for handling questions arising in the course of Kaiser's dealings with the public. At the beginning of her employment with Kaiser, in addition to Strass, her department had two public affairs representatives, a secretary and one on-call person who worked one day per week. By the late fall of 1990, Strass' department had decreased by two, leaving the Public Relations Department with only one other full-time professional in the Washington office.[1]
In the late summer of 1991, Strass began experiencing headaches, fatigue, an inability to relax, and insomnia. Strass attributed her symptoms to pressures associated with working with a short staff and preparation for Kaiser's annual board of directors' meeting scheduled to be held in November 1991. On August 15, 1991, Strass reported her symptoms to Dr. Seonae Pak. After several visits in which Strass' blood pressure readings were elevated, Dr. Pak diagnosed Strass as having hypertension, which he attributed to her work situation.[2]
Dr. Maron testified that Strass' blood pressure was normal from 1977 to August 1991. However, from August 1991 until February 1992, "[a] period of time in which [Strass] was surrounded by employment stresses," Strass' blood pressure was abnormal. Dr. Maron further testified that Strass' abnormal blood pressure reading continued about 46% of the time, through June 1994, two years after Strass' termination from Kaiser. Dr. Maron testified that Strass' hypertension was caused by "an unusual and extraordinary stressful situation related to her employment at *1004 Kaiser." He also testified that, to a reasonable degree of medical certainty, if the particular stress situation had been eliminated, her blood pressure would have returned to normal. He also testified that removal of the stress and addressing the condition without medication was the preferable course of action.
In early October 1991, Strass informed her supervisor, Robin Thomashauer, that she had been diagnosed with hypertension and that the stress of preparing for the board meeting with inadequate staff was making her ill. Thomashauer said that Strass' condition and the job situation was not "a good fit." About a week later, Strass went to see Rick Snocker, Kaiser's manager of human resources, seeking a solution to the situation. Snocker suggested during this meeting that Strass' medical condition might qualify for reasonable accommodation. Strass then visited Gary Fernandez, Thomashauer's boss, seeking reasonable accommodation for her illness. Strass suggested restructuring her job, filling the staff vacancies in her office, or transferring her to another position within the organization.
In January 1992, Strass expressed an interest to Thomashauer in a newly created position of Director of Community Relations. In spite of Strass' background in community relations, she was not offered the position. At trial, Thomashauer testified that the position was not given to Strass because it was believed that Strass' bitterness towards the company would inhibit her from effectively representing Kaiser in the community.
In early February 1992, Strass met with Thomashauer and Snocker, and they asked her to consider the Compass Career Reappraisal Program, a program designed to assess the suitability of an employee for his or her current job or another position within Kaiser. On February 18, 1992, Strass conditionally declined the offer for enrollment in the program, stating in writing the following reasons for her decision:
In view of the fact that Kaiser Permanente will not assure me: (1) that my right to privacy will be protected; (2) that the information obtained will be treated as confidential; (3) that the information obtained will not be used to my detriment, I decline to enroll in the Compass Career Reappraisal Program unless my enrollment is required as a condition to remaining employed at Kaiser Permanente.
That same day, Thomashauer gave Strass a memorandum terminating her employment with Kaiser.[3] A memo dated the same date was placed in Strass' personnel file indicating that her negative attitude was a factor in her inability to carry out her job responsibilities effectively.
At the time of Strass' termination, Kaiser had a progressive discipline policy in effect. This policy, Section 8.03 of the Personnel Policy Manual, provided for specific steps to be followed prior to termination of employment with Kaiser. There was a disclaimer in the introduction of the Personnel Policy Manual indicating that it was not a contract. However, other language in the document used mandatory terms in setting forth various conditions of employment, including, e.g., vacation, severance pay, health and safety conditions. There was also a declaration that the manual was Kaiser's statement of intention in matters covered by the policy.
II. Analysis
A. Standard of Review
"A judgment notwithstanding the verdict is proper only in extreme cases, *1005 where `no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party.'" Lyons v. Barrazotto, 667 A.2d 314, 320 (D.C.1995) (quoting Oxendine v. Merrell Dow Pharm., Inc., 506 A.2d 1100, 1103 (D.C.1986), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990) (citations omitted)). If there is some evidence from which the jury could find for a party on the required elements of the claim, or where the resolution of the case requires the resolution of factual issues or a determination of the credibility of witnesses, the case should be submitted to the jury. Id. at 320 (citing Washington Welfare Ass'n, Inc. v. Poindexter, 479 A.2d 313, 315 (D.C.1984)) (other citation omitted). Where the trial court grants a post-verdict motion for judgment as a matter of law, this court applies the same standard of review on appeal. Id. (citation omitted).
B. Claim Under the Human Rights Act
In setting aside the verdict for Strass, the trial court concluded that the evidence was insufficient to allow a reasonable juror to conclude that Kaiser unlawfully terminated Strass in violation of the Human Rights Act. Specifically, the trial court determined that no reasonable juror could conclude on the evidence presented that Strass was a handicapped person within the meaning of the Act because she had failed to establish that a reasonable accommodation could be made for her claimed disability. Strass argues that the trial court erred in vacating the jury's finding that Kaiser failed to accommodate her physical handicap in violation of the Human Rights Act.
The Human Rights Act "prohibits an employer from discharging an employee based wholly or partially upon discriminatory reasons, including physical handicap." D.C.Code § 1-2512(a)(1)[4]; American Univ. v. Commission on Human Rights, 598 A.2d 416, 421 (D.C.1991) (citing D.C.Code § 1-2512(a)(1) (1987)). To establish a prima facie case of discrimination based upon handicap, a claimant is required to prove that
"(a) except for his [or her] physical handicap, he [or she] is qualified to fill the position; (b) he [or she] has a handicap that prevents him from meeting the physical criteria for employment; and (c) the challenged physical standards have a disproportionate impact on persons having the same handicap from which he [or she] suffers. To sustain this prima facie case, there should also be a facial showing or at least plausible reasons to believe that the handicap can be accommodated or that the physical criteria are not `job related.'"
American Univ., 598 A.2d at 422 (quoting Prewitt v. United States Postal Serv., 662 F.2d 292, 309-10 (5th Cir.1981)). Special interrogatories were submitted to the jury in this case covering each of the foregoing elements.[5] The jury found for Strass on *1006 each of these issues. In addition, the jury found specifically that Strass had proved "that Kaiser intentionally discriminated against her, in whole or in part, on the basis of her physical handicap."
At the time relevant to this case, the Act defined a physical handicap as "a bodily or mental disablement which may be the result of injury, illness or congenital condition for which reasonable accommodation can be made."[6] D.C.Code § 1-2502(23). Thus, under this statutory definition, Strass had to prove that her claimed disability, hypertension, was a condition for which reasonable accommodation could be made. Id.; American Univ., supra, 598 A.2d at 422. The trial court's decision setting aside the jury's verdict on the claim under the Human Rights Act rested upon its conclusion that Strass had failed to prove there was any reasonable accommodation which Kaiser could have provided that would have enabled Strass to perform the essential functions of her job. While recognizing that usually, the question of reasonableness of accommodation is a question of fact for the jury, the trial court determined that the undisputed facts showed that the accommodations requested were unreasonable as a matter of law. Since this argument forms the basis of the trial court's ruling, we address it first.
Strass proposed two ways for Kaiser to accommodate her condition: (1) restore staff in her department to a full complement of four full-time public affairs representatives; or (2) transfer her to a newly created position of Director of Community Affairs. She contends that the first requested accommodation would have restored the staffing in her department to the level which existed when she handled the position without experiencing hypertension. She contends that the alternative request, a transfer, would have placed her in a position of performing some of the duties required in her public affairs position, but with fewer demands. Thus, Strass argues that the trial court erred in concluding that reasonable accommodation could not be made because it failed to view the facts and reasonable inferences in her favor and accepted Kaiser's evidentiary assessment that Strass' recommended accommodations were merely "speculative."
Assuming first, for the sake of argument, that the accommodations requested would have controlled or eliminated her hypertension, Strass had to show that the accommodations were reasonable. Kaiser argues that Strass' proposed accommodations were not required by law, and the trial court agreed. Specifically, Kaiser contends that an employer is not required to accommodate a handicapped employee by reassigning her to a different position. In support of this argument, Kaiser relies upon the decisions in Guillot v. Garrett, 970 F.2d 1320 (4th Cir.1992), Chiari v. City of League City, 920 F.2d 311 (5th Cir.1991), and Carter v. Tisch, 822 F.2d 465 (4th Cir.1987). Neither Chiari or Carter support Kaiser's position. In Chiari, at issue was whether reasonable accommodation under the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), required an employee to create a new job for the handicapped individual.[7] In Carter, the employee sought as an accommodation a light duty assignment. 822 F.2d at 467. In that case, the court concluded that an alternative assignment was not required "unless the employer normally provides such alternative employment under its existing policies." Id. Here, Strass did not *1007 request the company to create a new position, but only that it assign her to a job reasonably available. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 289 n. 19, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). Although dicta, the Supreme Court stated the rule on this issue in Arline as follows:
Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies.
Id. (citing 45 C.F.R. § 84.12). This passage tends to support Strass' claim that she should have been considered for another position available in the organization.
In Guillot, the third case relied upon by Kaiser, the 4th Circuit declined to read the passage from Arline as imposing upon the employer an obligation to assign to another position, an employee who was no longer qualified to hold his current position, with or without accommodation. Guillot, supra, 970 F.2d at 1326-27. The employee in Guillot had lost a top security clearance after it was learned that he failed to disclose his drug and alcohol dependency. Therefore, the employee was no longer eligible for the position he had held. The court held in Guillot that reasonable accommodation does not require an employer "to transfer or reassign an employee who is not otherwise qualified for the position he then holds." Id. at 1327. The court did observe, however, that neither "under the Rehabilitation or Civil Rights Acts, may a government agency or department deny the handicapped employeebecause of his handicapopportunities that are available under existing statutes or regulations." Id. The primary purpose of the District's Human Rights Act is to eliminate all employment discrimination. See Daka, Inc. v. Breiner, 711 A.2d 86, 94 (D.C.1998) (citing Estate of Underwood v. National Credit Union Admin., 665 A.2d 621, 637 (D.C.1995)) (referencing the legislative history of the Human Rights Act). It would further that objective to interpret reasonable accommodation to include, as the Supreme Court articulated in Arline, supra, that the employer "cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies." 480 U.S. at 289 n. 19, 107 S.Ct. 1123.
Under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. (1995), the definition of reasonable accommodation includes "job restructuring" and "reassignment to a vacant position." Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996) (citing 42 U.S.C. § 12111(9)); see also Johnston v. Morrison, Inc., 849 F.Supp. 777, 779 (N.D.Ala.1994). Kaiser points out correctly that this law did not become effective until July 26, 1992, after Strass' discharge. See Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 443 (1st Cir.1997). The ADA is not retroactive. Id. Kaiser contends, therefore, that this court cannot look to the terms of the ADA or cases decided under it for guidance, unless consistent with prior Rehabilitation Act law. To address this issue, we need not resolve whether this court can look to subsequent enactments and cases based thereon as guidance for the meanings of words in our own preexisting statute. For, not only is there nothing in the Human Rights Act which would preclude an interpretation of reasonable accommodation in our statute to include the requirement that the employer not deny reasonable alternative and available employment for which the employee is qualified, but that meaning may be inferred within the context of the Act, particularly given its broad purposes. See Arline, supra, 480 U.S. at 289 n. 19, 107 S.Ct. 1123. Clearly, the employer could not deny her the employment because of her handicap *1008 without violating the Human Rights Act. Id. We are persuaded that, in determining whether the employer failed to make reasonable accommodation for Strass' condition, the jury could consider properly evidence that there was a vacant position available which Strass was qualified to fill. The position, according to Strass' evidence, was less demanding. Instead, the company hired for the position someone who, according to the evidence, had difficulties in two other management positions with the company. Considered with the other evidence of how Strass' termination came about, the jury could have concluded that the employer could have, but declined to, accommodate her condition. Kaiser argues that it sought to accommodate Strass in other ways, but that she insisted on only two accommodations. Considering all the evidence and the reasonable inferences therefrom, the jury was at liberty to reject Kaiser's version of the events.
Strass also requested as an accommodation that Kaiser restore the staff removed from her department. Kaiser argues that employers are not required to assign employees or hire new employees to perform an employee's duties in order to accommodate that individual's condition. While job restructuring, under certain circumstances, may be a reasonable accommodation, an employer is not required to reallocate essential functions of a particular position. Johnston, supra, 849 F.Supp. at 779.[8] The employer is not required to hire staff to perform the essential functions of the job which the employee cannot perform. Id. at 779-80; accord, Reigel v. Kaiser Found. Health Plan, 859 F.Supp. 963, 973 (E.D.N.C.1994). An employer is not required "to make fundamental or substantial modifications in its operations to assure every disabled individual the benefit of employment." Id. (citations omitted). Moreover, an employer is not required to place a stress-sensitive employee in a virtually stress-free environment. Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 442 (6th Cir.1991).
However, this case is different than Johnston, Reigel, and Pesterfield. Here, there was evidence that Strass could perform her functions before her staff was removed. She did not request additional staff to perform her job; she requested to return to the status quo before she experienced the conditions which brought on the hypertension. The vacancies needed to be filled in order that she could perform her job, and the new staff, presumably, could perform the jobs previously performed by former staff. There was evidence that the company deferred filling the vacancies until after Strass' termination. As Strass summarizes her argument, the jury could have determined from the evidence that the company learned of her disability, attempted to force her to quit by failing to fill the positions on her staff essential to the performance of the job, denied her alternative employment for which she was qualified, and then filled the staff positions for her replacement shortly after she left Kaiser. While an employer is not required to hire employees to perform the functions of the job that a handicapped individual cannot perform, the employer cannot deliberately create conditions which render it impossible for a handicapped person to discharge the responsibilities of the position for the purpose of forcing the handicapped person to quit. That is essentially Strass' claim in this case.[9] Although Kaiser offered evidence to counter Strass' evidence as outlined, the jury could have rejected it in favor of Strass' version of the facts. Viewing the evidence in the light most favorable to Strass, it cannot be said *1009 that no reasonable juror could find in her favor on the Human Rights Act claim.
Kaiser makes two additional arguments which require only brief discussion. Kaiser argues that no reasonable juror could find that Strass had a physical handicap within the meaning of the Human Rights Act. It contends first that Strass did not prove that she had a perceived or actual disablement and that her condition did not meet the definition of a handicapped person under federal law in that it did not substantially limit one of her major life's functions.[10] Our dissenting colleague also takes this position. Instead of applying the definition of handicap which was in effect at the time Strass' claim arose, D.C. Human Rights Act, D.C.Code § 1-2502(23)[11] and regulations then in effect, 4 DCMR § 599.1 (1995),[12] they rely principally on the more restrictive requirements of the subsequently amended local statute which redefined the protected class using the term "disability," instead of "handicapped."[13] Although the term disability in the amended version of the Human Rights Act is defined in language identical to the federal definition appearing in the Americans with Disabilities Act, 42 U.S.C. § 12102(2) and federal regulations, the new law and the federal case law interpreting this language, cited in the dissenting opinion, are not controlling in resolving this case which arose under prior law.
Moreover, this issue is not properly before this court. Kaiser did not proceed to trial on the theory that the definition of disability under the subsequent enactment controlled.[14] It did not raise this issue in its motion for judgment as a matter of law, and the trial court did not consider it.[15] Rather, in its motion, Kaiser relied specifically upon the definition prior to the amendment of the Human Rights Act, i.e., D.C.Code § 1-2502(23).[16] Then, it argued only that Strass did not meet the definitional requirements of § 1-2502(23) factually because: (1) her condition was controlled by medication and her pressure was low at *1010 one point; and (2) there was no showing that reasonable accommodation could be made for her condition. "[I]t is not appropriate at this juncture to inject a different defense theory which was not presented at trial." Vector Realty Group v. 711 14th St., 659 A.2d 230, 233 (D.C.1994) (citing Easter Seal Soc'y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993)). There are some differences between federal law and the Human Rights Act and the regulations governing it which define more broadly those covered under the Act.[17]
Under the provisions of the Human Rights Act in effect at the time her claim arose, it is sufficient that Strass showed that she had a physical disability and that Kaiser discriminated against her in her employment, in whole or in part, because of it. Although Kaiser points to other evidence from which the jury could have found that it had non-discriminatory reasons for discharging Strass, there was evidence from which the jury could have determined that the reasons either did not exist or were pretextual. The jury apparently did that, and there is no basis for disturbing its findings.[18]
C. Contract Claim
Strass argues that the trial court erred in setting aside the jury's verdict on her breach of contract claim. Strass' theory of recovery was that Kaiser breached its implied contract by terminating her without following the progressive discipline policies outlined in Kaiser's Personnel Policy Manual (Manual), and the jury found in her favor on that claim.[19] In granting Kaiser's post-trial motion for judgment as a matter of law, the trial court concluded that "the evidence presented at trial was insufficient to allow a reasonable jury to conclude that *1011 there was an express or implied agreement between Kaiser and its employees which superseded the disclaimer in the Manual, or that there were any special circumstances or inducements suggesting that plaintiff had a contract different from that of the other Kaiser employees." Strass argues here, as she did in the trial court, that Kaiser's disclaimers in the Manual do not automatically relieve it of its obligation to follow the progressive discipline policies set forth in the Manual before terminating her employment. She contends that the evidence was sufficient to allow the jury to conclude that Kaiser had that contractual obligation. Kaiser contends that the Manual's contractual disclaimer was unambiguous and that there was no evidence of any agreement which would supersede it. We review first the legal principles governing our resolution of the parties' respective positions and then consider their application to the facts presented at trial.
There is a well-settled presumption in this jurisdiction that "a hiring not accompanied by an expression of a specific term of duration creates an employment relationship terminable at will by either party at any time." Nickens v. Labor Agency of Metro. Washington, 600 A.2d 813, 816 (D.C.1991) (citations omitted). However, this presumption can be rebutted by evidence that the parties intended that termination be subject to specific preconditions. Id. (citing Washington Welfare Ass'n, Inc. v. Wheeler, 496 A.2d 613, 616 (D.C.1985)). The terms of an employer's personnel or policy manual may be sufficient to raise a jury question as to whether the manual creates contractual rights for the employee. Wheeler, 496 A.2d at 615; Nickens, 600 A.2d at 817. In Wheeler, the letter of employment specified no period of employment; however, the employer's Personnel Policy and Procedures Manual distinguished between the procedures for discharge of permanent and probationary employees. 496 A.2d at 615. In Wheeler, it was determined that since these terms in the Manual evidenced the parties' intent that certain preconditions be met before the employment could be terminated, the contract was distinguishable from an employment-at-will contract. Id. at 616. Thus, the trial court's decision permitting the case to go to the jury and denying the employer's motion for judgment notwithstanding the verdict was upheld. Id. Similarly, in Nickens, the employee contended that the employer's personnel policies manual established preconditions to termination which the employer breached. 600 A.2d at 817. There, the policies manual required that each staff member receive a copy and "accept `the position and the Personnel Policies governing his/her employment' in writing," after which the agency head would sign the employee action form. Id. We said that these factors provided evidence that the parties intended the manual to establish contractual rights, or at the very least, raised a factual question for resolution by the factfinder. Id.
The decisions in Wheeler and Nickens show that contractual rights may arise from language in employee manuals. However, employers can effectively disclaim any implied contractual obligation arising from such provisions. Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 269 (D.C.1993) (citing Goos v. National Ass'n of Realtors, 715 F.Supp. 2, 4 (D.D.C. 1989)). "The legal effect of such a disclaimer is, in the first instance, a question for the court to decide." Id. In Smith, a disclaimer in the personnel handbook stated that "it is not an employment contract and does not guarantee any fixed terms and conditions of employment. . . . Employment for management personnel is for no definite period, is terminable at will and is subject to satisfactory performance." 620 A.2d at 269 n. 1. This language, absent facts or circumstances indicating a superseding agreement or unconscionability, was found sufficient for the court to conclude as a matter of law that the management employee was an employee at-will *1012 who could be discharged with or without cause. Id. at 269.
Not in every case will a contractual disclaimer clause be adequate to relieve an employer of obligations specified in its regulations. See Greene v. Howard Univ., 134 U.S.App.D.C. 81, 88, 412 F.2d 1128, 1135 (1969).[20] In Greene, provisions in the university's Faculty Handbook made clear that a faculty member who was not finally informed by April 15 that his contract would not be renewed, had reason to believe that he could rely on returning to the university the following semester, 134 U.S.App.D.C. at 86-87, 412 F.2d at 1133-34. The university argued that it had no contractual obligation to give such notice because qualifying language in the employee's handbook relieved the university of any obligation to observe its regulations to that effect. Included in the handbook was a section reading, "without contractual obligation to do so" in connection with its purpose to give employees notice by certain fixed dates. 134 U.S.App.D.C. at 87, 412 F.2d at 1134. The D.C. Circuit rejected the argument that other provisions of the handbook were negated automatically by the disclaimer and held the disclaimer to be in conflict with a rational interpretation of the bargain between the parties. 134 U.S.App.D.C. at 88, 412 F.2d at 1135. Against these legal principles, we consider whether the disclaimers in Kaiser's Policy Manual and Handbook entitle Kaiser to judgment as a matter of law, or whether construed in light of other provisions in the documents, a jury triable question is created as to Kaiser's obligations to its employees before termination.
Kaiser relies upon disclaimers in the Manual and the Employee Handbook to support its argument that there was no contractual requirement that Kaiser comply with progressive discipline procedures before terminating Strass. The introduction in the Manual states that it is not a contract, reading in relevant part as follows:
This Personnel Policy Manual is designed to provide each employee with a clear set of guidelines for situations which develop in the workplace. This manual is not a contract, but rather a statement of the intention of the Kaiser-Georgetown Community Health Plan, Inc., in matters covered by the policies contained herein.
Similarly, the Employee Handbook states that "[t]he contents of the [Manual] are presented as a matter of information only and are not to be understood or construed as a promise or contract between the Company and its employees." However, as Strass argues, other provisions of the Manual contradict these disclaimers. While Kaiser's Policy Manual states at the outset that it is not a contract, it declares in the very same sentence that it is "a statement of the intention of Kaiser ... in matters covered by the policies contained [in the document]." Some evidence that the policy's terms are mandatory also appears on the next page of the document, which provides:
Where there are conflicts with existing union contracts, the contracts shall be controlling. However, where union contracts are silent, the Personnel Policy Manual shall be controlling. (Emphasis added.).
Strass argues that the Manual affirmatively imposes reciprocal duties upon non-probationary employees. Further, she contends there was evidence that Kaiser's practices were to conform to the progressive discipline procedure. Section 8.03 of Kaiser's Personnel Policy Manual covers "progressive discipline".[21] This procedure *1013 includes the following steps: (a) informal counseling; (b) formal counseling; (c) written warning; (d) final warning, suspension; (e) discharge; and (f) immediate dismissal for severe infractions. It also provides for documentation of disciplinary action and for representation of the employees during disciplinary meetings.
The section on progressive discipline contains language which tends to support that Kaiser intended, and the employee could reasonably expect, that application of this policy was required before termination. The Manual provides, for example, that "[i]nformal counseling will occur when the supervisor recognizes unsatisfactory work performance"; that "[f]ormal counseling will occur after a repeated infraction"; "[t]he final warning will be administered as the fourth step"; and that "[e]xcept in cases of gross misconduct or gross negligence, a discharge will be preceded by a final warning." This section of the Manual is preceded by Kaiser's statement that it is their "policy to adhere to an established protocol to ensure fair and consistent treatment of employees in handling of disciplinary action."
Other provisions of the policy also support Strass' position that it was intended by Kaiser to govern the rights and responsibilities of Kaiser and its employees. These provisions are also covered by the mandatory term, "shall," rather than the permissive, "may." The Manual contains provisions governing leave, wages, salary, benefits, health and safety, employee services, grievance procedures, and other conditions of employment. An examination of these sections reveal that they specify obligations for both the employer and employee. The Manual designates, for example, specific holidays for which employees will be paid, providing that "when a holiday falls on Sunday, the following Monday shall be a paid holiday." (Policy Manual, Section 3.01). It provides for a "floating holiday" for which compensation "`shall' be equal to the employee's regularly scheduled work day," up to eight hours. (Policy Manual, Section 3.02). In instances of non-compliance with the provisions set forth in the Manual, the employee is subject to forfeiture of certain benefits. For example, under Section 8.04, unless non-probationary employees comply with the notice requirements for termination set forth in the policy, that employee "shall not be entitled to payment of . . . accrued [vacation] leave." It is difficult to comprehend how the non-contractual qualifier in the beginning of the Manual can be viewed reasonably to abrogate what clearly appear to be obligations of the employer and employee of this type. By adopting written policies for consistent application to the terms of employment,
"the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever the personnel policies and practices, they are established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee."
Sisco v. GSA Nat'l Capital Fed. Credit Union, 689 A.2d 52, 57 (D.C.1997) (quoting Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880, 892 (1980)).
"This court has held that a personnel manual that states specific preconditions that must be met before employment will be terminated is sufficiently clear to rebut the presumption of at-will employment." Rinck v. Association of Reserve City Bankers, 676 A.2d 12, 16 (D.C. 1996) (citing Wheeler, supra, 496 A.2d at 616). While there is language in Kaiser's policy manual that it is not a contract, this qualifier is rationally at odds with other language in the document. Construing the document as a whole, a jury could conclude reasonably that the employer intended to *1014 be bound by its terms, including those related to its progressive discipline policy. See Greene, supra, 134 U.S.App.D.C. at 88, 412 F.2d at 1135. The progressive discipline policies in this case established pre-conditions to termination, and are similar to those provisions which can rebut the presumption of at-will employment. See Sisco, supra, 689 A.2d at 57; see also Rinck, 676 A.2d at 16 (citation omitted). We recognize that Sisco allows that an employer, by disclaimer, may negate the reasonableness of the employee's expectation that the employer will be bound. 689 A.2d at 57. However, that does not answer the question whether the disclaimer in this case, considered with reference to the entire document, effectively relieved Kaiser of any and all obligations which the policies set forth. See Greene, 134 U.S.App.D.C. at 87, 412 F.2d at 1134. A jury question was raised as to this issue. Therefore, the trial court's initial determination to submit the issue to the jury was correct, and the decision to set aside the jury's verdict on the claim, erroneous.[22]
For the foregoing reasons, the grant of judgment as a matter of law for Kaiser is reversed, and the case is remanded with instructions for the trial court to consider first Kaiser's alternate request that the jury's award of damages be reduced.[23] If denied, then, the jury verdict shall be reinstated.
Reversed and remanded.
SCHWELB, Associate Judge, dissenting.
Unlike my colleagues in the majority, I find myself in substantial agreement with the written opinion of the trial judge, Honorable Patricia A. Wynn, in which she set aside the verdict in Ms. Strass' favor and held that Kaiser was entitled to judgment as a matter of law.[1] For some of the reasons stated by Judge Wynn, and for the additional reasons set forth below, I respectfully dissent.
I.
BREACH OF CONTRACT
I begin, as did the trial judge, with a consideration of Ms. Strass' claim for breach of contract. Ms. Strass asserts that Kaiser's Personnel Policy Manual imposed a contractual obligation on Kaiser to follow the progressive discipline policies described therein. Although a policy manual may, under some circumstances, constitute a contract, an effective disclaimer will defeat any inference that a contractual obligation is being undertaken. See, e.g., Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 269 (D.C.1993). In this case, the trial judge held as a matter of law that Kaiser's express disavowals of any intention to enter into a binding contract were fatal to Ms. Strass' breach of contract claim. See appendix at pp. 1022-25. I find the judge's reasoning persuasive, and add the following observations of my own.
Kaiser made it clear in the very first paragraph of its Personnel Policy Manual that "[t]his manual is not a contract." (Emphasis added.) In addition, Kaiser's Employee Handbook, of which Ms. Strass acknowledged receiving a copy, states that *1015 the contents of the Manual "are presented as a matter of information only and are not to be understood or construed as a promise or contract between the Company and its employees." (Emphasis added.) Kaiser could hardly have stated more clearly its intention not to be legally required to adhere to the procedures described in the Manual and not to give up its freedom of action. Nevertheless, my colleagues in the majority hold that Kaiser was contractually obligated to Ms. Strass.
"In order to form a binding agreement, both parties must have the distinct intention to be bound; without such intent, there can be no assent and therefore no contract." Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 547 (D.C.1981). Accordingly, in determining whether the parties have entered into a contract, the question whether the parties intended to be bound must be "closely" examined. See Jack Baker Inc. v. Office Space Dev. Corp., 664 A.2d 1236, 1239 (D.C.1995) (citing LaVay). A "close" examination of the Personnel Manual and Employee Handbook reveals that Kaiser did not intend to be contractually bound and took the trouble to say so, prominently and forcefully. In my opinion, Ms. Strass is effectively asking the court to write a new and binding contract for parties who never entered into one. This we are not empowered to do. See, e.g., Waters v. Kopp, 34 App. D.C. 575, 582 (1910).
Moreover, an employment relationship, such as the one between Kaiser and Ms. Strass, is subject to well-established legal principles. A contract of employment is presumed to be terminable at-will, and this presumption may be successfully rebutted only where the parties have "stated clearly their intention to limit the employer's right to terminate." Perkins v. District Gov't Employees Fed. Credit Union, 653 A.2d 842 (D.C.1995) (quoting Littell v. Evening Star Newspaper Co., 73 App.D.C. 409, 410, 120 F.2d 36, 37 (1941)). "[W]here no such intent is clearly expressed . . . the assumption will be that ... the parties have in mind merely the ordinary business contract for a continuing employment, terminable at the will of either party." Littell, supra, 73 App.D.C. at 410, 120 F.2d at 38.
My colleagues point to the use of words such as "shall" elsewhere in the Manual. They suggest that such terminology is mandatory in nature and renders the Manual ambiguous, in spite of Kaiser's disclaimers. I cannot agree that use of these words can convert a non-binding statement of policy into an enforceable contract. In my opinion, the document as a whole leaves no doubt as to its meaning, which can be summarized as follows: "This is the way we ordinarily do things, but we are not contractually bound to do them in that way." In sum, Kaiser did not intend to enter into a contract, it unequivocally stated that intention, and the court cannot make and enforce a contract to which the parties never agreed. But even if there were some doubt as to the meaning and effect of Kaiser's disclaimersand I discern noneit cannot fairly be said that the parties in this case have clearly entered into a binding contract modifying Ms. Strass' status as an at-will employee, see Perkins, supra, 653 A.2d at 842, when the documents which, according to Ms. Strass, constitute that contract, explicitly state that there is no contract and that the Manual is not to be understood or construed as an enforceable obligation or even as a promise.
My colleagues rely heavily on Greene v. Howard Univ., 134 U.S.App. D.C. 81, 412 F.2d 1128 (1969). See maj. op., ante, at 1011-12. In that case, non-tenured instructors at Howard University who had allegedly participated in on-campus disturbances claimed that, without notice to the instructors, the University had refused to renew their appointments, and that this refusal was in violation of the University's obligations as set forth in the Faculty Handbook. Section IX of the Handbook provided that "[i]t will be the practice of the University, without contractual obligation to do so," to give advance written *1016 notice at specified times during the academic year to instructors who would not be retained for the following academic year. In a university setting, the necessity for such notice is apparent, for faculty members need to know in advance whether they will be retained, so that they may make timely application elsewhere in case of non-retention. The notification dates specified in the Faculty Handbook having passed, the instructors had been led to believe that their contracts would be routinely renewed. After the on-campus disturbances, however, the instructors were peremptorily notified, without opportunity for a hearing, that they would not be retained on the Howard faculty.
Reversing the trial court's decision in favor of the University, the Court of Appeals held that
the contractual relationships existing here, when viewed against the regulations prescribed for, and the practices customarily followed in, their administration, required the University in the special circumstances here involved to afford the teachers an opportunity to be heard.
Greene, 134 U.S.App.D.C. at 84, 412 F.2d at 1131 (emphasis added). The court did not decide the substantive issue, namely, whether, notwithstanding its disclaimer of a contractual obligation, the University was obliged to retain the instructors where the notice contemplated in the Handbook had not been timely given.
The key words in the above-quoted passage from Greene are those that I have italicized"in the special circumstances here involved." The court obviously wrote in this limitation deliberately, and the reader was thus forewarned that the court was not fashioning a broad rule embracing cases in which such special circumstances did not exist. The Greene case arose in the rather esoteric world of academe, with its own traditions and expectations, and the court's entire opinion reflects this critical fact. The court explicitly stated:
Contracts are written, and are to be read, by reference to the norms of conduct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is. The readings of the market place are not invariably apt in this noncommercial context.
134 U.S.App.D.C. at 88, 412 F.2d at 1135 (emphasis added).
Because "the readings of the market place" were not implicated in Greene, the court made no mention at all of the principles that would have governed the controversy if the instructors had been discharged by a commercial enterprise such as Kaiser. The opinion in Greene contains no discussion, for example, of the presumption that an employment contract is at-will, nor did the court advert to the rule that an intention to rebut that presumption must be stated clearly and unequivocally.[2] The court thus did not decide or even explicitly address the legal issue that controls the present appeal or the case law that informs that issue.
Given the fundamental principle that there can be no contract where the parties have not clearly agreed to be contractually bound, one might quarrel with the decision in Greene even in the academic context in which that case arose.[3] But be that as it may, I discern no special or other circumstances in the present case which would permit the court to create and enforce a contract into which Kaiser never agreed to enter, nor should we hold that the Manual and Handbook reflect a "clear" intent to depart from the at-will doctrine when those documents forcefully proclaim the *1017 exact opposite.[4] If this court treats the description in a manual of an employer's procedures as a binding and enforceable contract even in the face of strong disclaimers such as Kaiser's, the foreseeable effect of such a holding will be to discourage employers from providing manuals to their employees and from reducing their ordinary (but non-mandatory) procedures to writing. Such a consequence will benefit neither employers nor employees.
II.
DISABILITY
In 1992, when Kaiser fired Ms. Strass, the District's Human Rights Act made it unlawful, inter alia, to discharge an employee "wholly or partially for a discriminatory reason based upon ... physical handicap." D.C.Code § 1-2512(a)(1) (1992). At that time, "physical handicap" was defined as "a bodily or mental disablement which may be the result of injury, illness or congenital condition for which reasonable accommodation can be made." D.C.Code § 1-2512(23) (repealed). The present appeal is governed by the definition of physical handicap then in effect.
In 1994, the Council passed the Human Rights Act of 1977 Disability Definition Amendment Act (DDAA). See Act No. 10-228, 41 D.C.Reg. 2583-84 (May 13, 1994).[5] In the new statute, the Council deleted all references to "physical handicap" and substituted therefor the term "disability." The 1994 Act contained the following definition of that term:
"Disability" means a physical or mental impairment that substantially limits one or more of the major life activities of an individual having a record of such an impairment or being regarded as having such an impairment.
D.C.Code § 1-2502(5A) (1999). The definition of "disability" in § 1-2502 is identical to the "federal" definition that appears in the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102(2) and in regulations adopted by the Equal Employment Opportunity Commission (EEOC) under the federal Rehabilitation Act of 1973. See 29 C.F.R. § 1614.203(a) (1999).
Ms. Strass seems to argue, and the majority appears to assume, that although the relevant provisions of the Human Rights Act are now identical to those of the ADA, the protections provided by District law in 1992 were broader than those available under federal law. This is incorrect. Indeed, any suggestion that the 1994 modernization of statutory terminology effected a significant change in substantive law is quite inaccurate.[6] On the contrary, the *1018 federal standard for determining disability had been a part of District of Columbia law since 1986, when the Office of Human Rights and the Commission on Human Rights promulgated "Physical Handicap Guidelines." These Guidelines stated, inter alia:
Except as otherwise provided in this chapter, the Office and the Commission adopt and incorporate by reference the provisions promulgated by the United States Equal Employment Opportunity Commission, which appear in 29 C.F.R. § 1613.701 et seq.[7]
4 DCMR § 513.1; 33 D.C.Reg. 4546, 4553 (Aug. 1, 1986).
The EEOC regulations, which the District's human rights agencies adopted and "incorporated by reference" into the Physical Handicap Guidelines, contained, almost verbatim, the definition of "disability," quoted above, which now appears in the ADA.[8] The legal standard that was in effect in the District at the time of Ms. Strass' discharge was thus identical, for all practical purposes, to the present legal standard. Under the law in effect in 1992, as under current law, a plaintiff claiming protection under the Human Rights Act was required to demonstrate that she was "substantially limit[ed]" in her major life "activities," or that she was regarded as being so limited. 29 C.F.R. § 1615.103(1).
The EEOC has defined "major life activities" as
functions such as caring for one's self [sic], performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. § 1615.103(2). Kaiser contends that Ms. Strass did not show that she was disabled under the foregoing standard, and that no impartial jury could reasonably find that she was so disabled. I agree.
At trial, and now on appeal, Ms. Strass has taken the position that her high blood *1019 pressure, or hypertension, constitutes a "physical handicap" as that term was used in the Human Rights Act prior to 1994, and is also a "disability" under current law. But as the Supreme Court has recently noted, "[s]ome 50 million Americans have high blood pressure." Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2149, 144 L.Ed.2d 450 (1999). In enacting the ADA, Congress found that "some 43,000,000 Americans have one or more physical or mental disabilities. . . ." 42 U.S.C. § 12101(a)(1); Sutton, supra, 119 S.Ct. at 2147. Many people suffer from disabilities unrelated to high blood pressureblindness, deafness, and paraplegia, to name a fewand Congress obviously intended to provide protection to persons so afflicted. Since the number of people suffering from hypertension (approximately fifty million) exceeded the number that the ADA was enacted to protect (approximately forty-three million), Congress could not have considered hypertension, without more, to be a disability warranting protection under the Act. Thus, even before the Supreme Court's decision in Sutton, in which the Court gave the term "disability" a substantially narrower construction than it had previously been accorded by the EEOC and by eight of nine federal appellate courts, see Sutton, 119 S.Ct. at 2153 (Stevens, J., dissenting), the federal authorities uniformly supported Kaiser's position that "blood pressure alone, without any evidence that it substantially affects one or more major life activities, is insufficient to bring an employee within the protection of the ADA." Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir.1996) (per curiam) (quoting and aff'g 889 F.Supp. 253, 258 (N.D.Miss. 1995)); accord, Aucutt v. Six Flags Over Mid-Amer., Inc., 85 F.3d 1311, 1318-20 (8th Cir.1996); Murphy v. United Parcel Serv., 946 F.Supp. 872, 875 (D.Kan.1996), aff'd mem., 141 F.3d 1185 (10th Cir.1998), aff'd, 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999).
Viewed in the light most favorable to Ms. Strass, the record in this case does not support a finding that her high blood pressure substantially limited Ms. Strass in a "major life activity." There was no evidence that she could not perform manual tasks, or walk, or see, or hear, or speak, or breathe, 29 C.F.R. § 1615.103(2). Ms. Strass likewise does not contend that she is unable to work, see id.; on the contrary, she has worked as a consultant since her discharge, and she has earned almost as much as she did at Kaiser. Moreover, according to Ms. Strass, she could even have done her old job if she had been provided with sufficient staff. Ms. Strass also asserts that she could have successfully handled the newly-created position of Director of Community Relationsa job for which her superiors at Kaiser believed her to be unsuited.
There was, of course, evidence that Ms. Strass was unable to perform her former duties with a reduced staff, and that it was the stress caused by her attempts to do that job that precipitated her hypertension. But "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Aucutt, supra, 85 F.3d at 1319 (citing 29 C.F.R. § 1630.2(j)(3)(i)). As Ms. Strass points out in her reply brief, her own medical expert testified that Ms. Strass' hypertension would have resolved if the "unusual and extraordinary stress" to which she was exposed at work beginning in late 1991 had been eliminated. It is difficult to reconcile this testimony with any claim that Ms. Strass was substantially limited in the life activity of working.
There was evidence that, from time to time, Ms. Strass' hypertension caused severe headaches and neck pain, fatigue, and insomnia.[9] Standing alone, however, such *1020 symptoms constitute a disability within the meaning of the ADA only if the employee's major life activities are significantly affected. See, e.g., Hodgens v. General Dynamics Corp., 963 F.Supp. 102, 107-08 (D.R.I. 1997); cf. Grant v. The May Dep't Stores, Inc., 127 Daily Wash. L. Rptr. 1709, 1711 (Super.Ct.D.C.1999) (Walton, J.) (applying "major life activity" standard under District's Human Rights Act).
Finally, Ms. Strass contends that even if she was not in fact suffering from a disability, Kaiser regarded her as suffering from one. In this respect, however, the present case is indistinguishable from the Supreme Court's recent decision in Murphy, supra, which also involved an employee who was suffering from hypertension, who had been discharged from a particular job, but who was able to do other work:
[I]n light of petitioner's skills and the array of jobs available to petitioner utilizing those skills, petitioner has failed to show that he is regarded as unable to perform a class of jobs. Rather, the undisputed record evidence demonstrates that petitioner is, at most, regarded as unable to perform only a particular job. This is insufficient, as a matter of law, to prove that petitioner is regarded as substantially limited in the major life activity of working. See Sutton, 119 S.Ct. at 2151-52.
119 S.Ct. at 2139.[10]
III.
REASONABLE ACCOMMODATION
Because, in my view, Ms. Strass was not suffering from a "bodily disablement," I do not believe that the court needs to reach the question whether the accommodations sought by Ms. Strass were reasonable. On the merits of that issue, however, I agree entirely with Judge Wynn. In my opinion, "the only duty owed to a currently employed handicapped employee ... is to reasonably accommodate that individual within the position that [s]he presently holds." Guillot v. Garrett, 970 F.2d 1320, 1326 (4th Cir.1992) (construing Section 501 of the Rehabilitation Act, 29 U.S.C. § 791).[11] Judge Murnaghan put it concisely in Carter v. Tisch, 822 F.2d 465, 467 (4th Cir.1987):
*1021 The case law is clear that, if a handicapped employee cannot do his job, he can be fired, and the employer is not required to assign him to alternative employment.
Finally, Kaiser's ability to afford to hire more employees, and thus to reduce Ms. Strass' stress level, is irrelevant. As the trial judge correctly observed, Kaiser was "not required to alter general decisions about personnel needs or revise program or budgetary priorities in order to accommodate [Ms. Strass' alleged] disablement." (Citation omitted.)
IV.
CONCLUSION
For the foregoing reasons, I respectfully dissent.
APPENDIX
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION
STEPHANIE A. STRASS, Plaintiff
v.
KAISER FOUNDATION HEALTH PLAN OF THE MID-ATLANTIC STATES, INC., Defendant
Civil Action: 92cal4841 Judge Wynn
Calendar 10
ORDER
This matter comes before the Court on defendant's motion for remittitur and supplemental motion for judgment as a matter of law or, in the alternative, for a new trial, plaintiff's oppositions thereto, and defendant's reply. After considering all of the pleadings and the record in this case, this Court finds that defendant's motion for judgment as a matter of law pursuant to Super. Ct. Civ. R. 50 should be granted.
BACKGROUND
This case arises from an employment relationship between plaintiff Stephanie Strass and defendant Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. (Kaiser). Ms. Strass was employed as Kaiser's Director of Public Affairs between April 14, 1988 and February 18, 1992. In the fall of 1991, Ms. Strass informed her supervisors at Kaiser of her belief that she suffered from hypertension. On February 18, 1992, Ms. Strass was fired, and on November 18, 1992, Ms. Strass filed a complaint against Kaiser alleging breach of an employment contract, violation of the District of Columbia Human Rights Act, and infliction of emotional distress. Subsequently, Ms. Strass amended her complaint and withdrew the infliction of emotional distress claim. Kaiser filed a motion seeking summary judgment as to the two remaining counts on January 14, 1994, which this Court denied on March 8, 1994.
A jury trial commenced on September 19, 1994, and at the close of defendant's case on September 26, 1994, defendant renewed its motion for a directed verdict. The Court reserved ruling on the motion and on September 28, 1994, a jury verdict was returned in favor of plaintiff in the amount of five hundred twenty-five thousand forty-seven ($525,047.00) dollars. The Court now has before it defendant's motion for remittitur and supplemental motion for judgment as a matter of law or, in the alternative, for a new trial, plaintiff's oppositions thereto, and defendant's reply.
JUDGMENT NOTWITHSTANDING THE VERDICT
Super. Ct. Civ. R. 50 provides that "[w]henever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the Court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." SUPER. CT. CIV. R. 50(b). Therefore, when deciding a motion *1022 for judgment notwithstanding the verdict, the court shall apply the same standards as applied to a motion for directed verdict. Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147, 150 (D.C.1979); District of Columbia v. Cassidy, 465 A.2d 395, 397 (D.C.1983). Consequently, the Court must construe the evidence and all legitimate and reasonable inferences therefrom in the light most favorable to the non-moving party. Clement v. People's Drug Store, Inc., 634 A.2d 425, 427 (D.C.1993); Cassidy, 465 A.2d at 397; Gabrou v. May Dep't Stores, 462 A.2d 1102, 1104 (D.C.1983); Washington Welfare Ass'n Inc. v. Poindexter, 479 A.2d 313, 315 (D.C.1984); Faniel, 404 A.2d at 150. Once the court has construed the evidence in such a manner, the moving party is entitled to a judgment notwithstanding the verdict only if the evidence shows that no reasonable jury could have found for the nonmoving party. Washington Welfare Ass'n Inc., 479 A.2d at 315; Gabrou, 462 A.2d at 1104; Faniel, 404 A.2d at 150; Cassidy, 465 A.2d at 397. See Stokes v. Children's Hosp. Inc., 805 F.Supp. 79, 81 (D.C. Cir.1992) (stating that judgment notwithstanding the verdict should be granted when the evidence is so one-sided against the non-moving party that the moving party must prevail).[1] Applying the above-stated principles, this Court finds that defendant's motion for judgment as a matter of law should be granted on both the breach of contract claim and the District of Columbia Human Rights Act claim.
BREACH OF CONTRACT
Plaintiff claims that defendant breached an implied contract by terminating her without applying the progressive discipline policies outlined in Kaiser's Personnel Policy Manual (the Manual). Plaintiff admits that there was no express employment contract between her and Kaiser, but claims that Kaiser's conduct of rigidly applying the progressive discipline policies created an implied contract which converted her employment status from that of an at-will employee, to that of an employee who could be discharged only if certain preconditions were met. Kaiser moves this Court to enter judgment as a matter of law on the breach of contract claim, arguing that the evidence at trial was insufficient to allow a reasonable jury to conclude that an implied employment contract existed between plaintiff and Kaiser. Defendant denies the existence of an express or implied contract, relying on the disclaimers in the Manual and the Kaiser Permanente Employee Handbook (the Employee Handbook), both of which clearly state that the policies and procedures set out in the Manual do not constitute a contract.
The District of Columbia Court of Appeals has consistently held that in this jurisdiction there is "a presumption that a hiring not accompanied by an expression of a specific term of duration creates an employment relationship terminable at will by either party at any time." Nickens v. Labor Agency of Metro. Washington, 600 A.2d 813, 816 (D.C.1991) (citations omitted). This presumption can be rebutted by evidence that the parties intended that employment be subject to specific preconditions before termination. Id. The parties must, however, clearly state their intention to alter an at-will employment agreement. Littell v. Evening Star Newspaper Co., 73 App.D.C. 409, 410, 120 F.2d 36, 37 (1941); Perkins v. District Gov't Employees Fed. Credit Union, 653 A.2d 842, 843 (D.C.1995). Provisions in personnel policy manuals can, under certain circumstances, provide sufficiently clear evidence of the parties' intent as to the terms of an employment contract. See, e.g., Washington Welfare Ass'n, Inc. v. Wheeler, 496 A.2d 613, 615 (D.C.1985). But *1023 employers also can effectively disclaim any implied contracts arising from such manuals, as Kaiser did in the instant case. Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 269 (D.C.1993).
Both the Manual and the Employee Handbook have express disclaimers stating that the provisions of the Manual are not intended to create any contractual rights. The disclaimer in the Manual reads as follows:
This Personnel Policy Manual is designed to provide each employee with a clear set of guidelines for situations which develop in the workplace. This manual is not a contract, but rather a statement of the intention of the Kaiser-Georgetown Community Health Plan, Inc. in matters covered by the policies contained herein.
Personnel Policy Manual, Introduction, Plaintiff's Ex. 32. Similarly, the Employee Handbook states:
The contents of [the Personnel Policy Manual] are presented as a matter of information only and are not to be understood or construed as a promise or contract between the Company and its employees.
Kaiser Permanente Handbook at 6, Defendant's Ex. 3. In the absence of evidence that the disclaimer was unconscionable or that the parties had entered into some separate agreement, this Court must conclude as a matter of law that plaintiff was an employee-at-will. Smith, 620 A.2d at 269 (given no facts or circumstances indicating that the disclaimer was unconscionable or that the employer and employee had entered into some kind of agreement that superseded the disclaimer in the handbook, employee was a management employee at-will who could be discharged with or without cause).
Plaintiff makes no claim of unconscionability, but contends that she presented sufficient evidence for a reasonable jury to conclude that there was a separate agreement which superseded the disclaimers in the Manual and the Employee Handbook. Plaintiff does not claim that there was a separate agreement which was specific to her. Compare, Rinck v. Ass'n of Reserve City Bankers, 676 A.2d 12 (D.C. 1996). Instead plaintiff claims that Kaiser's rigid application of the progressive discipline procedures and the various memoranda and training concerning those procedures were both evidence of Kaiser's intent to bind itself to provide these procedural protections as a matter of right to all of its employees.
The Court finds plaintiff's underlying premise to be highly questionable. Ms. Strass claims that Kaiser's conduct of setting out the progressive discipline procedures and then rigidly applying these procedures superseded its express disclaimer that the Manual did not create contractual rights. If the language establishing the procedures cannot be evidence of an implied contract in the face of express disclaimers, see Smith, 620 A.2d at 269, citing Alameda v. Martin Marietta Corp., 6 IER cases 95, 97, 1990 WL 236125 (D.D.C.1990), then it is hard to understand how the application of those same procedures, no matter how rigidly enforced, can be evidence of a separate implied contract. Similarly, the development of training materials and internal personnel memoranda in an attempt to uniformly apply the disciplinary procedures cannot create a contractual right which supersedes the express disclaimers. As Kaiser stated in its manual, the manual is simply "a statement of the intention of [Kaiser] in matters covered by the policies contained [in the manual]." Conduct consistent with that statement of intention cannot convert the Manual's provisions into a separate superseding agreement.
Even if the Court were to accept plaintiff's theoretical premise, plaintiff failed to present evidence that would allow a reasonable jury to find that the progressive discipline procedures were in fact rigidly and uniformly applied. Plaintiff relies *1024 heavily on internal personnel memoranda and training materials addressing the progressive discipline procedures which were provided to the managers and supervisors. The existence of such training materials, however, is not evidence that the procedures were actually strictly enforced. Indeed, introductory language in the Phillips Memorandum, plaintiff's Ex. 34, written in December of 1991, just before plaintiff was fired, indicates that an unevenness existed in the level of understanding among supervisors with regard to the various aspects of formal discipline. Further, the training memoranda themselves repeatedly emphasize that they are guidelines only, and suggest that there are various exceptions to the stated policies. The memoranda adopt a goal of consistency but also recognize that a flexible approach is necessary and the progressive discipline procedures must be applied on a case-by-case basis. Plaintiff also cites her personal training as a supervisor and advice she received in addressing particular personnel matters. But her limited personal experiences do not support a logical inference that all terminations were preceded by progressive discipline. At the most, plaintiff's evidence proves only that Kaiser attempted to act consistently with the intentions stated in the Manual. There is no evidence which would support a finding that those procedures were rigidly applied to all employees as a matter of right.
Plaintiff appears to present an alternative theory, that the training and personnel memos were themselves evidence of an intent by Kaiser to modify the employment agreement. The unilateral adoption of a policy does not in and of itself create a binding agreement. By the same token, the development of internal personnel memoranda and training to carry out a policy of the employer does not create contractual rights in the absence of a clear statement of the intent to do so. Shankle v. DRG Fin. Corp., 729 F.Supp. 122, 124 (D.D.C.1989) (citation omitted) (the presumption of terminable-at-will employment can be rebutted only by a clear statement of the parties' intention to do so.) The language in the Manual and the Employee Handbook clearly states that the procedures outlined are not a contract and nothing in the language of the training memoranda suggests an intent to supersede that disclaimer and create contractual rights. As described above, the memoranda state that they are being provided as guidelines on the implementation of progressive discipline. Furthermore, the language of the memoranda referring to case-by-case application suggests various exceptions without precisely defining such exceptions, an approach which is inconsistent with an intent to create contractual rights with such a document. Finally, the language of the memoranda suggests a completely different business purpose, namely, to provide procedures which will protect the company from potential lawsuits.[2]Cf. Shankle, 729 F.Supp. at 125 (termination procedures outlined in the manual are not designed to confer any procedural rights on the company's employees, but rather to provide direction to supervisors and protect defendant from unwarranted claims).
A third theory alluded to by plaintiff is that as a result of her training as a supervisor and the advice she received with regard to applying the progressive discipline procedures to her staff, plaintiff justifiably believed that these procedures were contractual rights. Even if this training and advice created a subjective belief in plaintiff that these procedures were contractual rights for all employees, including herself, such a belief is insufficient to support a finding that Kaiser agreed that plaintiff's "at-will" employment was converted *1025 to a "just cause" employment contract. See Shankle, 729 F.Supp. at 125. The fact that plaintiff's belief was based on Kaiser's conduct is not probative of Kaiser's intent. Kaiser's intent must be gleaned from its conduct and statements alone, without regard to plaintiff's subjective understanding of such conduct. As stated above, Kaiser's conduct does not reasonably support a finding that Kaiser clearly intended to supersede the published disclaimers and modify its contract with its employees.
Thus the Court finds that the evidence presented at trial was insufficient to allow a reasonable jury to conclude that there was an express or implied agreement between Kaiser and its employees which superseded the disclaimer in the Manual, or that there were any special circumstances or inducements suggesting that plaintiff had a contract different from that of the other Kaiser employees. No reasonable jury could conclude that the internal personnel memoranda and training regarding the implementation of Kaiser's progressive discipline policy created contractual rights in the absence of a clear statement of the parties' intent to do so. Nor was there evidence that Kaiser rigidly enforced the progressive discipline procedures or that its conduct in applying these procedures in any way created an agreement with its employees which superseded the disclaimers. Therefore, defendant's motion for judgment as a matter of law must be granted on the breach of contract claim.
DISTRICT OF COLUMBIA HUMAN RIGHTS ACT
Defendant also moves this Court to enter judgment as a matter of law on the District of Columbia Human Rights Act violation claim. Defendant argues that plaintiff failed to establish a prima facie case of discrimination because her hypertension did not meet the Act's definition of a "handicap." On this point, Kaiser states that because plaintiff's hypertension was controlled by medication, and, further, because there was no evidence that a reasonable accommodation could have been made for her condition, she did not qualify as a handicapped individual. Alternatively, Kaiser argues that even if plaintiff proved that she suffered from a physical handicap as defined by the Human Rights Act, no reasonable jury could find that Kaiser failed to provide plaintiff with a reasonable accommodation or that plaintiff was discharged because of her alleged handicap. In support of the verdict reached by the jury, plaintiff argues that her hypertension was a physical handicap within the meaning of the Human Rights Act and that Kaiser could have, but failed to accommodate her hypertension, and terminated her instead.
A physical handicap, as defined by the District of Columbia Human Rights Act, is "a bodily or mental disablement which may be the result of injury, illness or congenital condition for which reasonable accommodation can be made." D.C.Code § 1-2502(23). Thus, in order to come within the protection of the Human Rights Act, plaintiff must first prove that she suffers from a physical handicap for which reasonable accommodation can be made. American University v. Com'n on Human Rights, 598 A.2d 416, 422 (D.C.1991). In particular plaintiff is required to show that:
(a) except for [her] physical handicap, [she] is qualified to fill the position; (b) [she] has a handicap that prevents [her] from meeting the physical criteria for employment; and (c) the challenged physical standards have a disproportionate impact on persons having the same handicap from which [she] suffers. To sustain this prima facia case there should also be a facial showing or at least plausible reasons to believe that the handicap can be accommodated or that the physical criteria are not "job related."
Id. quoting Prewitt v. United States Postal Serv., 662 F.2d 292, 309-10 (5th Cir.1981). *1026 Applying this legal standard to the present case, the Court finds that defendant's motion for judgment as a matter of law should be granted as there was no reasonable accommodation that Kaiser could have provided that would have enabled plaintiff to perform the essential functions of her job.[3]
At trial and in her post-trial pleadings, plaintiff argues that her hypertension was caused by job-related stress and Kaiser could have accommodated her handicap by reducing stress in her job in either of two ways: 1) by filling vacant positions in the public relations staff; or 2) or by offering her a newly created "Community Affairs" position. Plaintiff cites no authority to support her position that these proposals are "reasonable accommodations." Defendant argues that case law has given definition to the term "reasonable" as used in the Act, and that neither of these proposed accommodations fall[s] within that definition.
As set out above, the Court of Appeals in American University stated that "the statutory definition [of a handicap] requires more than a showing that one has a mental [or bodily disablement]. To come within the Act's protection, a complainant must first prove that he or she has a mental disablement for which reasonable accommodation can be made." American University, 598 A.2d at 422 (citations omitted). Reversing the Commission on Human Rights, the Court held that although the record supported the Commission's finding that the complainant suffered from a mental disablement, there was no evidence showing that the deficiencies in her job performance were related to that disablement, or that reasonable accommodation for her disablement was possible.
As a first step in proving that a handicap can be reasonably accommodated, the employee must prove that the condition is susceptible to some accommodation which the employer could provide. Id. at 423. Like the disablement in American University, the claimed handicap in this case is one for which the causes and effects and the methods of controlling or accommodating the disablement are not readily apparent. And like the plaintiff in American University, Ms. Strass has offered no expert evidence that her hypertension would have been controlled by either of the accommodations she proposes. Although there was expert testimony to support plaintiff's claim that it was job-related stress which caused or at least contributed to her hypertension, there was none to support her claim that either of the proposed accommodations would have relieved the hypertension. Indeed, there was uncontroverted evidence that plaintiff had performed this same job for over two years without suffering from hypertension and further that her hypertension continued up to the time of the trial, even though she had left her position at Kaiser over two years earlier. The Court therefore agrees with defendant that plaintiff's claims that her condition could have been *1027 accommodated by Kaiser are speculative. See, Carrozza v. Howard County, Md., 847 F.Supp. 365 (D.Md.1994) (plaintiff's conclusory observations that certain accommodations would enable her to perform the job do not meet the criterion of factual evidence), aff'd per curiam, 45 F.3d 425 (4th Cir.1995).
Assuming for the sake of argument that the proposed accommodations would have been effective, plaintiff must also show that such accommodations were reasonable. Courts have consistently held that the accommodations required of employers for the purpose of relieving employee stress are limited. Employers have no duty to change the nature of an employee's job in order to accommodate that employee's disablement. Johnston v. Morrison, Inc., 849 F.Supp. 777 (N.D.Ala.1994).[4] Although reasonable accommodation may include "job restructuring" or the implementation of a part-time work schedule, an employer is not required to reallocate essential functions of the job. Id. (citations omitted); Carrozza v. Howard County, Md., supra. An employer may be required to have someone assist the disabled individual to perform the job. See, e.g., Carter v. Bennett, 840 F.2d 63 (D.C.Cir. 1988) (the employer provided readers to assist a blind employee). The employer is not required, however, to have someone perform the job for the disabled individual. Johnston, 849 F.Supp. at 779 (citations omitted). Nor must employers provide a stress free environment in order to accommodate a "stress-sensitive" employee. Pesterfield v. Tennessee Valley Authority, 941 F.2d 437, 442 (6th Cir.1991); Johnston, 849 F.Supp. at 777. Finally, an employer is required to accommodate only the employee's present position. The employer is not required to find another job for the disabled employee. Guillot v. Garrett, 970 F.2d 1320 (4th Cir.1992); Carter v. Tisch, 822 F.2d 465, 467-8 (4th Cir. 1987); Florence v. Frank, 774 F.Supp. 1054 (N.D.Tex.1991);
Although reasonableness of accommodation is a question of fact which is usually to be decided by a jury, here undisputed facts lead to the conclusion that the proposed accommodations are unreasonable. See, Carrozza v. Howard County, Md., 45 F.3d 425 (4th Cir.1995) (affirming trial court's grant of summary judgment based on plaintiff's failure to proffer sufficient evidence that her handicap could have been reasonably accommodated) (opinion attached). Stress was inherent in plaintiff's position as Director of Public Affairs. Indeed, in a job description prepared by plaintiff, planning and implementing "crisis communication efforts" is listed as one of the major job functions. Plaintiff's Ex. 10. Coping with the inherent stressors of the position of Director of Public Affairs is, arguably, one of the fundamental requirements of the job. Hiring additional staff in order to reduce the stress on the manager of a busy and demanding department goes well beyond the "restructuring" of a position. Plaintiff argues fervently that Kaiser had ample funds to hire additional people, citing its profit in 1991 and the money expended on a major board meeting which plaintiff characterizes as "non-functional," "supremely wasteful," and "overblown." All of this is completely irrelevant. An employer is not required to alter general decisions about personnel needs or revise program and budgetary priorities in order to accommodate an employee's disablement. Florence v. Frank, 774 F.Supp. at 1061. Nor is an employer required to "`restructure' a job as to change its fundamental requirements, such as the ability to cope with its inherent stressors." Carrozza v. Howard County, Md., 847 F.Supp. at 368 (citations omitted). Plaintiff's proposed accommodation is clearly not within *1028 the definition of a reasonable accommodation.[5]
Plaintiff's second proposed accommodation, that she be given a new position, is also unreasonable as a matter of law. Although there is mention of reassignment in some of the regulations adopted for the implementation of the federal Rehabilitation Act, the case law is clear that such reassignment is not within the definition of a reasonable accommodation. Guillot v. Garrett, supra; Carter v. Tisch, 822 F.2d at 467-8; Florence v. Frank, supra. Plaintiff cites no authority to the contrary.
Thus, the Court finds that the evidence presented at trial was insufficient to allow a reasonable jury to conclude that Ms. Strass was a handicapped individual and that by terminating her Kaiser discriminated against plaintiff in violation of the District of Columbia Human Rights Act. Since plaintiff did not present evidence that a reasonable accommodation that would have enabled her to perform the essential functions of her job was possible, plaintiff was not a handicapped individual within the meaning of the District of Columbia Human Rights Act. Defendant's motion for judgment as a matter of law must therefore be granted on the District of Columbia Human Rights Act violation claim.
THEREFORE, it is this 28th day of June, 1996,
ORDERED that the judgment for plaintiff entered September 28, 1994, be and hereby is VACATED, and it is further
ORDERED that defendant's motion for judgment as a matter of law as to the breach of contract claim be GRANTED, and it is further
ORDERED that defendant's motion for judgment as a matter of law as to the District of Columbia Human Rights Act violation claim be GRANTED, and it is further
ORDERED that the remaining pending motionsDefendant's Motion for Remittitur, Plaintiff's Motion for Status Conference, and Plaintiff's Motion for Prompt Decision of Defendant's Post-Trial Motions be DENIED AS MOOT.
s/ Patricia Wynn
PATRICIA WYNN
JUDGE
NOTES
[1] One individual terminated employment with Kaiser, and the other was discharged.
[2] At trial, Dr. Barry Maron, Strass' medical expert, defined hypertension as high blood pressure which means readings of at least 140 systolic or 90 diastolic on more than one occasion within a close period of time.
[3] The memo read as follows:
Based on your decision regarding the [C]areer [R]eappraisal [P]rogram and our prior discussions concerning other available opportunity within the organization, I find it necessary to terminate your employment. In light of your tenure with Kaiser Permanente, we will offer you full out placement services as well as two months' severance pay. Your health insurance will continue through the end of the month in which the second month you pay in. In addition, you're entitled to your full vacation balance.
[4] D.C.Code § 1-2512(a)(1) reads as follows:
It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, matriculation, or political affiliation of any individual:
(1) To fail or refuse to hire, or to discharge, any individual; or otherwise discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee[.]
[5] The jury was asked to determine: (1) whether "Strass demonstrate[d] that she had a physical handicap that prevented her from meeting the physical criteria of her job"; (2) whether "she was qualified to fill her job at Kaiser except for her physical handicap"; (3) whether she showed "that the physical requirements of the job ... had a disproportionate impact on other people with her same physical handicap"; (4) whether "her handicap could have been reasonably accommodated"; and (5) whether "Kaiser intentionally discriminated against her, in whole or in part, on the basis of her physical handicap."
[6] This section was repealed in 1994, but was applicable at the time Strass filed her complaint.
[7] "Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped individuals in programs and activities that receive federal financial assistance" and applicable federal regulations. Chiari, supra, 920 F.2d at 315, 318.
[8] In determining the kind of proof required to prove Human Rights Act violations, this court has looked to cases decided under analogous federal statutes for guidance. American Univ., supra, 598 A.2d at 422.
[9] Strass also claimed discrimination based upon disparate treatment. The trial court did not consider this issue separately in ruling on the motion for judgment as a matter of law. In light of our disposition, we need not address it here.
[10] Under federal regulations, a handicapped person was defined at the time Strass' cause of action arose, as one who:
(1) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment.
29 C.F.R. § 1613.702(a)(repealed 1992). The definition is the same under the ADA, 42 U.S.C. § 12102(2) and current regulations under the Rehabilitation Act. See 29 C.F.R. § 1614.203(a) (1999).
[11] The term "handicap" was then defined in the Human Rights Act as "a bodily or mental disablement which may be the result of an injury, illness or congenital conditions which does not preclude the capacity to perform a particular job and for which reasonable accommodation can be made."
[12] For the applicable text of this section, see note 17, infra.
[13] The term "disability" is defined in the amended Human Rights Act as
a physical or mental impairment that substantially limits one or more of the major life activities of an individual having a record of such an impairment or being regarded as having such an impairment.
D.C.Code § 1-2502(5A) (1999).
[14] The trial court instructed the jury consistent with the definition in the prior statute.
[15] Indeed, Kaiser again asserts in its brief that the law enacted after Strass' claim arose is not controlling. In arguing for rejection of a right in the employee for reassignment in some circumstances under 42 U.S.C. § 12111(9)(B), it argues that the provision is not applicable because it became effective after Strass' discharge. Kaiser acknowledges that while the court may look for guidance in ADA cases which are consistent with the relevant law, "the Court should not afford Strass a substantive reassignment right that no law afforded during the time she was employed."
[16] Kaiser did not challenge by cross-appeal the correctness of the trial court's instruction based on the definition of the law in effect at the time the claim arose. Thus, the trial court's determination in that regard would not be properly before us. See Bible Way Church v. Beards, 680 A.2d 419, 431 (D.C. 1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997); Griffith v. Butler, 571 A.2d 1161, 1163 n. 3 (D.C.1990).
[17] The District of Columbia Employment Guidelines for Human Rights Law, 4 DCMR § 599.1 provides the following definition for physical handicap, in pertinent part:
[A] bodily or mental disablement which may be the result of injury, illness or congenital condition which does not preclude the capacity to perform a particular job and for which reasonable accommodation can be made. Physical or mental disablement means any physiological disorder or condition.... The term physical or mental disabilities includes, but is not limited to, such diseases and conditions as ... heart disease, diabetes, mental retardation, and emotional illness.
[18] In any event, we are satisfied that there was ample evidence from which the jury could find, as the jury did, that Strass' condition, although controlled by medication, was a disability within the meaning of the Act. See Harris v. H & W Contracting Co., 102 F.3d 516, 522 (11th Cir.1996) (disease capable of substantially limiting major life activities if left untreated qualifies as a handicap); see also Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir.1996) (recognizing that evidence that high blood pressure substantially limits a major life activity may bring it within the ADA). Compare Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) (upholding dismissal of complaint for disability discrimination under the ADA where glasses or contact lenses corrected the petitioners' vision to function identically with individuals without a similar impairment), with Murphy v. United Parcel Serv., 527 U.S. 516, 119 S.Ct. 2133, 2137, 144 L.Ed.2d 484 (1999) (citing Sutton and upholding affirmance of summary judgment based upon determination of no disability in that petitioner's condition in a medicated state does not substantially limit a major life activity under the ADA).
[19] The trial court instructed the jury with respect to the breach of contract claim:
One of the issues that you'll have to consider in determining whether the policy manual was a contract is the effect of the disclaimer of that manual. While in its express disclaimer that the manual is not a contract, it [is] evidence that the employer did not intend to be bound by it, other provisions of the manual and the employer's actions may contradict and demonstrate that there was a contract, notwithstanding the disclaimer.
Thus, the employer's manual or its other written policies, statement or its instructions to its employees may show that the employer really had contracted with its employees to follow the provisions of the manual. But unless the plaintiff has established by a preponderance of all the evidence that Kaiser clearly planned to abandon the disclaimer and enter into a new agreement with the plaintiff, your verdict on the plaintiff's contract claim must be for Kaiser.
[20] The opinion in Greene is binding precedent under M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971).
[21] The relevant portion of Section 8.03 reads as follows:
The disciplinary procedure which follows is intended as a guide for supervisors and employees to follow for most problems which arise in the workplace. However, severe infractions or problems such as gross misconduct or gross neglect of duty may warrant by-passing any or all of the early steps in the procedure.
[22] The trial court had previously denied Kaiser's motion for summary judgment presenting essentially the same theory. In light of our disposition of this issue, we need not decide whether the motions judge's prior ruling denying summary judgment for Kaiser on this question precluded the trial court from considering the issue because of "law of the case" rules, which generally preclude a court from reconsidering the same question of law previously decided by a court of coordinate jurisdiction. See Williams v. Mount Jezreel Baptist Church, 589 A.2d 901, 907 (D.C.1991). We also need not consider whether the trial court erred in denying admission of evidence of orders and training that Strass received from Kaiser showing its requirements that the policies in the Manual be followed.
[23] Kaiser did not designate its request as one for remittitur, but that appears to be its nature. Therefore, we remand to the trial court for consideration of the issue.
[1] I attach Judge Wynn's order as an appendix to this opinion.
[2] The court in Greene did not cite its own earlier decision in Littell, nor did it discuss the legal principles set forth in that case.
[3] Greene is, however, binding on us under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971), and the question whether that case was correctly decided on its facts is therefore academic.
[4] Although my analysis makes it unnecessary to reach the point, I note that the court in Greene also relied on the University's consistent adherence to the provisions of the University's Handbook, which adopted the "Standard for Notice of Non-Reappointment" adopted by the American Association of University Professors (AAUP). 134 U.S.App.D.C. at 86-87 & n. 7, 412 F.2d at 1133-34 & n. 7. In this case, on the other hand, the trial judge concluded that "[t]here was no evidence which would support a finding that the [progressive discipline] procedures were rigidly applied to all employees as a matter of right."
[5] Nothing in this opinion suggests that the DDAA applies retroactively to this case. Cf. maj. op. at 1009-10 & nn. 16 & 17. Rather, my point is that the coverage provided by the District of Columbia law and regulations in 1992 was identical to, and no broader than, the reach of the Human Rights Act today.
[6] Ms. Strass' argument that coverage under the Human Rights Act, before its amendment in 1994, was broader than federal coverage under the federal ADA assumes that in 1994, when the Council adopted the federal terminology, it intended to cut back on the coverage of the Act. If, as Ms. Strass insists, the pre-1994 statute was broader than the ADA, then it was also broader than the current District statute, which is identical in relevant respects to the ADA. Under Ms. Strass' theory, the Council must have enacted the 1994 amendment in order to reduce the protections provided to disabled citizens of the District.
There is not a shred of evidence to support any claim that the 1994 revision weakened the District's Human Rights Act. No such intention to place new limits on the Act's coverage is disclosed or even suggested by the legislative history. See COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON PUBLIC SERVICES AND YOUTH AFFAIRS, Report on Bill 10-298, Human Rights Amendment Act of 1993 (January 12, 1994). (This Report also embraces the DDAA.) The Report, which is quite brief, makes no mention of substantive changes in the reach of the law. Rather, the Council was apparently seeking to adopt the more up-to-date (some might say politically correct) terminology utilized in the federal statute.
If, as Ms. Strass' position assumes, the DDAA had been designed to weaken the Human Rights Act's protections for disabled people, such an intent would surely have precipitated some debate among the members of the Council. Chairman Lightfoot's Report reveals, however, that "there [was] no need to have an additional hearing on Bill 10-298 because of the overwhelming support for this bill at the December 2, 1992 hearing."
[7] 29 C.F.R. § 1613.701 is now 29 C.F.R. § 1615.103.
[8] The Employment Guidelines further defined "Physical Handicap" as follows:
A bodily or mental disablement which may be the result of injury, illness or congenital condition which does not preclude the capacity to perform a particular job and for which reasonable accommodation can be made. Physical or mental disablement means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, cardiovascular, reproductive, digestive, genito-urinary, hemic, and lymphatic, skin, and endocrine; or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental disabilities includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, acquired immune deficiency syndrome, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and emotional illness.
33 D.C.Reg. at 4560.
I do not believe that this definition can fairly be viewed as meaning that the provision of the Physical Handicap Guidelines incorporating the EEOC regulations does not apply. The definition includes a disorder of the skin, but this obviously does not mean that every summer rash is a physical handicap entitling the employee to statutory protection. The affirmative adoption in the Physical Handicap Guidelines of the EEOC regulations provides a means of distinguishing a trivial ailment, which does not trigger protection, from a significant one which substantially limits a major life activity and places the employee within the protected class.
[9] Ms. Strass asserts that these symptoms might have been more frequent if she had not taken medication for them. She also claims that "[her] hypertension, left unmitigated, exposed her to the risk of life-threatening heart attack and stroke." In presenting these contentions, Ms. Strass relies on authorities holding that the determination whether an employee suffers from a disability should be made without reference to available medication or other corrective measures. See, e.g., Harris v. H & W Contracting Co., 102 F.3d 516, 522 (11th Cir.1996), and the EEOC Guidelines, 29 C.F.R. § 1630.2(h). These authorities, however, are no longer viable in light of the Supreme Court's supervening decision in Sutton, in which the Court disapproved the EEOC regulations on this issue and adopted what had been the minority view among the federal appellate courts, namely, that mitigating measures must be considered.
[10] Kaiser failed to request a jury instruction to the effect that Ms. Strass' disabilities must substantially limit a major life function. On the basis of that failure, my colleagues assert, maj. op. at 1009 n. 16, that the point was thereby waived. I cannot agree. To be sure, a party who fails at trial to request an instruction ordinarily will not be heard to assert on appeal that such an instruction should have been given. See Super. Ct. Civ. R. 51. Kaiser is not asserting instructional error, however. Rather, Kaiser is arguing that the evidence of disability was insufficient to support the verdict in Ms. Strass' favor.
There can be no doubt that Kaiser preserved the substantive issue. Kaiser's memorandum in support of its oral motion for judgment as a matter of law stated, inter alia, that "a hypertensive employee who claimed to suffer severe headaches and an upset stomach has been held to be not handicapped absent evidence that his high blood pressure substantially interfered with one of his major life activities." (Emphasis added; citations omitted.)
[11] The court noted in Guillot, however, that as a matter of federal administrative practice independent of the duty to make a reasonable accommodation, "an employer may not forbid an employee who is unqualified for the position he holds from availing himself of other employment opportunities (i.e., transfer or reassignment) that are available under the employer's existing policies." Id. at 1327 (internal quotation marks omitted). I would hold, by imperfect analogy, that a disabled employee of a private business must be accorded the same right as her non-disabled counterpart to transfer to another position within the organization.
[1] Because Super. Ct. Civ. R. 50 is identical to Fed.R.Civ.P. 50, federal court decisions may be used as persuasive authority in interpreting Super. Ct. Civ. R. 50. Street v. Hedgepath, 607 A.2d 1238, 1243 n. 5 (D.C.1992).
[2] In the cover memo attached to various articles on progressive discipline circulated to the managers, Mr. Charles Phillips, the Director of Labor Relations and Compensation, stated that the purpose of the Human Resources Department was to help supervisors to "make appropriate decisions regarding the imposition of discipline that can withstand grievances and/or lawsuits." Plaintiff's Ex. 34.
[3] Defendant argues on three separate grounds that plaintiff's evidence was insufficient for a reasonable jury to conclude that her condition was a "handicap" as defined by the District of Columbia Human Rights Act: 1) that plaintiff's hypertension was controlled by medication and therefore it was not a "disablement"; 2) that there was no evidence that the hypertension was caused by job stress, and, therefore, there was no basis for finding that the hypertension could be accommodated by anything the employer might do; and 3) that, given the nature of the job, there was no "reasonable accommodation" which would relieve the hypertension. Plaintiff presented evidence through her own testimony, as well as the testimony of Dr. Pak, Dr. Maron, and her husband, which would arguably rebut the first two of defendant's arguments. In addition, Kaiser argues that at least part of plaintiff's human rights claim is barred by the statute of limitations. Because the Court finds that plaintiff's evidence cannot support a finding that her condition could be reasonably accommodated, the Court does not address defendant's other arguments or its alternative argument that even if plaintiff established a prima facie case, there was insufficient evidence that Kaiser's conduct was discriminatory.
[4] The claim in Johnston is brought under the federal Americans With Disabilities Act. In determining the kind of proof required in claims for discrimination based on handicap, the Court of Appeals has looked to cases under the analogous federal statute for guidance. American University, 598 A.2d at 422 (citations omitted).
[5] Indeed, even the accommodation which Kaiser provided, allowing plaintiff to take time off whenever she wanted to, was not an accommodation which could have been required of the defendant. Johnston, 849 F.Supp. at 779 (in interpreting the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., courts have found that an employee's inability to work necessary hours justifies an employee's termination). | 01-03-2023 | 10-30-2013 |
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